## Facts

- Daniel Walley drove a Harley-Davidson motorcycle westbound on Rushing Road in Denham Springs, Louisiana, with his wife, Alisa Walley, riding as a passenger.
- As the Walleys approached the signal-controlled intersection at Range Avenue, Daniel moved toward the left-turn lane to prepare for a left turn.
- Regina M. Vargas drove a Chevrolet pickup truck and attempted to exit a shopping-center driveway on the south side of Rushing Road, crossing the eastbound lanes to enter the westbound lane.
- Vargas’s truck collided with the Walleys’ motorcycle as Vargas entered the roadway.
- The parties presented conflicting testimony about Daniel’s positioning and lane change—specifically, whether he crossed the double-yellow center line or entered the left-turn lane prematurely in the area where the lane was beginning to form.
- The investigating officer, Trooper Matt Martello, was deposed before trial. After the deposition, Martello suffered a stroke.
- At trial, Martello appeared and testified but could not recall key details of the accident, his investigation, his interviews, or even giving the deposition.
- The Walleys sought to introduce Martello’s deposition as former testimony, arguing that his memory loss made him “unavailable” under Louisiana evidence law. The trial court refused to admit the deposition.
- After a bench trial, the trial court found Daniel Walley solely at fault and rejected the Walleys’ claims against Vargas and her insurer. The Walleys appealed.

## Issues

1. Whether Trooper Martello’s stroke-related memory loss rendered him “unavailable” so that his deposition testimony was admissible as former testimony under a hearsay exception.
2. Whether the trial court committed reversible error in assigning 100% fault to Daniel Walley and no fault to Vargas, given Vargas’s duty under La. R.S. 32:124 when entering a highway from a private driveway.

## Decision

- The appellate court affirmed the trial court’s ruling refusing to admit Trooper Martello’s deposition testimony.
- The appellate court reversed the trial court’s allocation of 100% fault to Daniel Walley and its failure to assign fault to Vargas.
- The appellate court remanded for further proceedings consistent with its comparative-fault analysis.

## Legal Principles

- A witness’s memory loss can be relevant to “unavailability” for hearsay purposes, but the trial court has discretion in deciding whether the requirements for admitting former testimony are met.
- The former-testimony exception is not automatic merely because a witness cannot recall events at trial; the proponent must establish the foundation required by the evidence code.
- Under La. R.S. 32:124, a driver entering or crossing a highway from a private driveway must yield to approaching traffic that is close enough to pose an immediate hazard and must use reasonable care to ensure the roadway is clear before entering.
- A motorist with a statutory duty to yield is not excused from fault solely because another driver may also have acted negligently; comparative fault may apply.
- Fault findings and allocations are reviewed under the manifest error/clearly wrong standard.

## Conclusion

The court upheld the trial judge’s refusal to admit the investigating trooper’s deposition despite his post-deposition stroke and resulting lack of memory, but it found manifest error in placing all fault on Daniel Walley while assigning none to Vargas, who was entering a favored roadway from a private driveway under La. R.S. 32:124, and it sent the case back for further proceedings on comparative fault and related issues.


Walley v. Vargas, 104 So. 3d 93 (2012)