STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-1000 consolidated with 18-1007
DANIEL NORMAN
VERSUS
MICHAEL A. SHELTON ENTERPRISE, INC., ET AL.
********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 255,532 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
**********
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.
CONERY, J., concurs in part, dissents in part, and assigns reasons.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Christopher Jude Roy, Jr. Chris J. Roy, Jr., A Law Corporation P. O. Box 7356 Alexandria, LA 71306-0356 Telephone: (318) 487-9537 COUNSEL FOR: Plaintiff/Appellant - Daniel Norman
Lisa Ann McLachlan Musgrave, McLachlan & Penn, LLC 1515 Poydras Street – Suite 2380 New Orleans, LA 70112 Telephone: (504) 799-4300 COUNSEL FOR: Defendants/Appellees - Simms Transportation, Inc. and Michael A. Shelton Enterprise, Inc. Joshua Joy Dara, Sr. 1521 Masters Drive Pineville, LA 71360 Telephone: (318) 442-1975 COUNSEL FOR: Defendants/Appellees - Simms Transportation, Inc. and Michael A. Shelton Enterprise, Inc.
Thomas Taylor Townsend P. O. Box 784 Natchitoches, LA 71458-0784 Telephone: (318) 238-3612 COUNSEL FOR; Plaintiff/Appellant - Daniel Norman
Jeff Landry Attorney General Blake E. Ryland Assistant Attorney General Leisa B. Lawson Assistant Attorney General Louisiana Department of Justice 900 Murray Street – Suite B-100B Alexandria, LA 71301 Telephone: (318) 487-5944 COUNSEL FOR: Defendant/Appellee - State of Louisiana, Department of Transportation and Development THIBODEAUX, Chief Judge.
In these consolidated appeals arising from a motor vehicle accident,
Plaintiff, Daniel Norman, challenges the trial court’s grant of summary judgment
in favor of Defendants, Michael Shelton Enterprise, Inc. and Simms Transportation
Systems, Inc. (collectively, “MSE”), as well as the State of Louisiana, through the
Department of Transportation and Development (“DOTD”). Mr. Norman
sustained severe personal injuries while traveling on the favored highway when his
motorcycle collided with a pickup truck driven by Trent Dubois that was
attempting to enter the highway from the parking lot of Robbie G’s Restaurant.
The trial court found that neither MSE, the lessee and operator of Robbie G’s
Restaurant, nor DOTD owed a duty to Mr. Norman and thus dismissed his claims
against them with prejudice.
On appeal, Mr. Norman avers that genuine issues of material fact
remain given the evidence demonstrating that Mr. Dubois’s view of the highway
was allegedly obstructed by a vehicle illegally parked on the state’s right-of-way
bordering the parking lot of the restaurant. Therefore, he argues that the trial court
erred in granting summary judgment when factual questions arise as to whether
Defendants were negligent in permitting or, alternatively, failing to prohibit, illegal
parking on the state’s right-of-way, and whether the resulting sight obstruction was
a cause-in-fact of the accident.
After conducting a de novo review of the record, we find that the trial
court did not err in granting summary judgment in favor of DOTD. However, we
find that genuine issues of material fact remain with respect to whether the actions
or inactions on the part of MSE in its operation of Robbie G’s caused or contributed to the alleged sight obstruction at the time of the accident, thereby
precluding summary judgment in its favor.
For the reasons set forth below, we affirm the trial court’s judgment
with respect to DOTD and reverse its grant of summary judgment in favor of MSE
and remand for further proceedings consistent with this opinion.
I.
ISSUES
We must determine whether the trial court erred in granting summary
judgment in favor of Defendants, MSE and DOTD.
II.
FACTS AND PROCEDURAL HISTORY
On the evening of April 17, 2015, Mr. Norman was traveling
westbound on Jackson Street in Alexandria, Louisiana on his Harley Davidson
motorcycle. Jackson Street, or LA Highway 1208-3, is a four-lane highway with
two lanes each for eastbound and westbound traffic, with a posted speed limit of 40
miles per hour. At or around the same time, Mr. Dubois, a patron of Robbie G’s
Restaurant, was attempting to exit the driveway of the restaurant in his Chevrolet
pickup truck. Robbie G’s is located adjacent to Jackson Street running westbound;
the state’s right-of-way, measuring approximately seven and a half feet wide, lies
between the restaurant’s parking lot and the shoulder of the highway.
Mr. Dubois testified that while he initially intended to make a left turn
onto Jackson Street to go eastbound, his vision of oncoming traffic was obscured
by a white pickup truck parked along the unmarked edge of the parking lot of
Robbie G’s. Thus, he decided it would be easier to make a right turn onto the
2 highway instead. Once Mr. Dubois pulled out far enough into the driveway to be
able to see oncoming traffic past the obstructing vehicle, he began to enter the right
lane of the highway when he then noticed the single headlight of Mr. Norman’s
motorcycle approaching. While he and other witnesses stated that Mr. Norman
was attempting to switch from the left lane to the right lane at the time, everything
happened so fast that Mr. Dubois recalled that he felt that impact was imminent by
the time he saw the motorcycle. Mr. Norman’s motorcycle impacted Mr. Dubois’s
left rear tire, resulting in both vehicles being totaled and Mr. Norman sustaining
severe personal injuries. Mr. Dubois testified that he was ticketed by police for
failing to yield while exiting a private driveway, but that the charge has since been
dismissed.
Mr. Norman asserts that his injuries were proximately caused by the
negligence of MSE as the operator of Robbie G’s Restaurant, 1 and DOTD as
custodian of the right-of-way on which the vehicle allegedly obstructing Mr.
Dubois’s view was illegally parked. Mr. Norman specifically asserted that Mr.
Dubois’s view of the highway was obstructed due to MSE’s regular and consistent
practice of permitting its patrons to illegally park on the state’s right-of-way.
Additionally, he argued that DOTD had a duty to prohibit such violations from
occurring on its right-of-way. In support of his position, Mr. Norman presented
testimony of several witnesses indicating that parking in the unstriped, unmanned
parking lot of Robbie G’s is typically so “horrible” on Friday evenings that patrons
are known to “park wherever they can,” including the state’s right-of-way.
1 We note that Mr. Norman erroneously alleged in his Petition that MSE was the lessor and owner of the premises on which Robbie G’s Restaurant exists. The corporate deposition of Ms. Pam Rachal clarified that MSE is in fact the lessee and operator of the premises. Moreover, we note that while Simms Transportation, Inc. operates the restaurant, Michael A. Shelton Enterprises, Inc. owns all of the stock in Simms, and that neither entity owns the restaurant.
3 Moreover, testimony further indicated that this situation “makes it very hard” to
exit the driveway of the restaurant.
Following discovery, MSE and DOTD filed individual Motions for
Summary Judgment before the trial court asserting virtually identical arguments. 2
While each argued that it did not owe any duty to Mr. Norman, Defendants relied
on witness testimony demonstrating that Mr. Norman appeared to have been
speeding and that it was his switching lanes at the time Mr. Dubois pulled out from
the driveway that resulted in the accident, rather than any negligence on their part.
At the summary judgment hearing, the trial court granted Defendants’
motions after finding that the accident simply occurred between Mr. Norman and
Mr. Dubois on the highway, with no duty owed by either DOTD or MSE under the
facts. In so ruling, the trial court granted summary judgment in favor of both MSE
and DOTD and dismissed Mr. Norman’s claims against each of them.
III.
STANDARD OF REVIEW
An appellate court reviews summary judgments de novo, applying the
same criteria that govern the trial court’s determination of whether summary
judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591
So.2d 342 (La.1991). Under La.Code Civ.P. art. 966, summary judgment is only
2 Defendants heavily relied on a theory of statutory immunity under La.R.S. 9:2798.4 in asserting entitlement to summary judgment, in which they asked the trial court to find them immune from liability after alleging that Mr. Norman was more than twenty-five percent negligent in bringing about his own injuries as a result of operating a motor vehicle while under the influence of a controlled dangerous substance.
Finding an absence of relevant and admissible facts to support Defendants’ proposition advanced before the trial court, as discussed below, we decline to address the merits of those arguments pertaining to La.R.S. 9:2798.4.
4 appropriate if the motion, memorandum, and supporting documents show that
there is no genuine issue as to material fact and that the mover is entitled to
judgment as a matter of law. La.Code Civ.P. art. 966(A)(3).
The burden of proving entitlement to summary judgment rests with
the mover, but if the mover will not bear the burden of proving the issue that is
before the court on the motion, he need only demonstrate the absence of factual
support for one or more essential elements to the adverse party’s claim. La.Code
Civ.P. art. 966(D)(1). Thereafter, the burden shifts to the adverse party to produce
factual support sufficient to establish the existence of a genuine issue of material
fact or that the mover is not entitled to judgment as a matter of law. Id. However,
the failure of the non-moving party to set forth evidence of a material factual
dispute mandates the granting of the motion. Babin v. Winn-Dixie Louisiana, Inc.,
00-78 (La. 6/30/00), 764 So.2d 37.
A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. . . . A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.
Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66 (citations
omitted).
Although the summary judgment procedure is favored, it is not a
substitute for trial on the merits. S.J. v. Lafayette Par. Sch. Bd., 06-2861 (La.
6/29/07), 959 So.2d 884. In ruling on a motion for summary judgment, the trial
court’s role is not to evaluate the weight of the evidence or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable
fact. Hines, 876 So.2d 764. Moreover, factual inferences reasonably drawn from
5 the evidence must be construed in favor of the party opposing the motion, and all
doubt must be resolved in the opponent’s favor. Id.
Where the threshold question in reviewing a trial court’s grant of
summary judgment is whether a genuine issue of material fact remains, such a
determination must be viewed in light of the relevant substantive law. Romero v.
Allstate Ins. Co., 08-256 (La.App. 3 Cir. 5/13/09), 11 So.3d 579, writ denied, 09-
1325 (La. 10/9/09), 18 So.3d 1283.
IV.
LAW AND DISCUSSION
On appeal, Mr. Norman asserts the existence of genuine issues of
material fact which preclude a granting of summary judgment in favor of
Defendants, MSE and DOTD.
At the outset, we note that Mr. Norman has also asked this court to
review the admissibility of certain pieces of allegedly incompetent summary
judgment evidence submitted by Defendants at the summary judgment hearing in
support of their argument for statutory immunity under La.R.S. 9:2798.4.
However, we decline to do so. First, while we recognize “the well-settled rule that
the district court’s oral reasons or written reasons for judgment form no part of the
judgment, and that appellate courts review judgments, not reasons for judgment[,]”
the trial court expressly based its decision on its own factual findings that
Defendants did not owe a duty to Mr. Norman, rather than the arguments and
evidence advanced in support of La.R.S. 9:2798.4.3 Bellard v. Am. Cent. Ins. Co.,
3 Specifically, the trial court remarked:
6 07-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671. Moreover, we agree with
MSE’s assertion on appeal that this court need not consider issues raised during a
summary judgment hearing which are not relevant to the matter at hand. Therefore,
we hold that the issue of Defendants’ entitlement to immunity under La.R.S.
9:2798.4, and all evidence submitted in support thereof, is irrelevant under the
facts and circumstances now before us.
Because the sole issue on appeal is whether the trial court erred in
dismissing Mr. Norman’s claims on summary judgment, we now address the trial
court’s judgments with respect to DOTD and MSE, respectively.
Summary Judgment in Favor of DOTD
On appeal, Mr. Norman asserts that the trial court erred in granting
summary judgment in favor of DOTD after raising a question as to whether the
State was negligent in conducting its routine inspections of Jackson Street.
Specifically, he argues that a genuine issue of material fact exists as to whether
DOTD had constructive notice of the parking situation, and thus owed a duty to Mr.
Norman, since it “failed to timely perform inspections according to policy and
failed to perform inspections in the evening which would have revealed the sight
obstruction onto the state highway.” Beyond the unsupported allegations advanced
So I find there is no connection between Robbie G’s, the people who lease it, own it, and subdividers of that, nor the Department of Transportation and Development in the resulting accident. DOTD has no obligation in this scenario. DOTD did not create any unreasonable risk to the plaintiff and this scenario is contemplated under our statute, Title 9:2800, and the immunity given by our legislature [under La.R.S. 9:2798.4] when operators test positive very well could be triggered. But I’m finding [the accident] was out in the street. I see this as an accident between Dubois and Norman with no intervening factors or responsibilities of DOTD, Mike Shelton Enterprises, Simms, or . . . DOTD or at Robbie G’s[.]
7 by Mr. Norman, however, we find the record devoid of any factual support
sufficiently rebutting DOTD’s entitlement to summary judgment.
Louisiana Revised Statutes 9:2800 provides that a public entity of this
state is liable under La.Civ.Code art. 2317 for damages caused by the condition of
things within its care and custody. While a plaintiff may proceed against DOTD
under either La.Civ.Code art. 2315 or 2317, he must nevertheless prove that: (1)
the thing that caused the damage was in the care or custody of the public entity; (2)
the thing was defective due to a condition that created an unreasonable risk of
harm; (3) the public entity had actual or constructive notice of the condition, yet
failed to take corrective action within a reasonable period of time; and (4) the
defect was a cause in fact of the plaintiff’s harm. La.Civ.Code art. 2317; La.R.S.
9:2800; LeBlanc v. City of Abbeville, 18-206 (La.App. 3 Cir. 10/17/18), 259 So.3d
372. Notably, the statute limits liability to instances in which “the public entity
had actual or constructive notice of the particular vice or defect which caused the
damage prior to the occurrence, and the public entity has had a reasonable
opportunity to remedy the defect and has failed to do so.” La.R.S. 9:2800(C).
Constructive notice, as defined by the statute, “mean[s] the existence of facts
which infer actual knowledge.” La.R.S. 9:2800(D).
It is undisputed that the portion of Jackson Street where the accident
occurred and its shoulder located adjacent to Robbie G’s were in the custody and
care of DOTD as a state highway. However, DOTD maintains that there was no
defect on the highway or the right-of-way, let alone notice thereof, sufficient to
invoke a duty owed to Mr. Norman. This court has long stated that “DOTD has a
duty to maintain its highways and shoulders in a reasonably safe condition which
does not present an unreasonable risk of harm to the motoring public exercising
8 ordinary care and reasonable prudence.” Cole v. State ex rel. Dept. of Transp. &
Dev., 99-912, p. 5 (La.App. 3 Cir. 12/22/99), 755 So.2d 315, 321 (citations
omitted), writ denied, 00-199 (La. 4/7/00), 759 So.2d 766. This duty also extends
to shoulders and areas off the shoulders within the right-of-way. Id.
In moving for summary judgment, DOTD submitted the deposition
testimony and affidavit of its District 8 Maintenance Superintendent, Kerry
Lemoine. Mr. Lemoine described his general job duties as riding all the state roads
within Rapides Parish to check for defects and hazards in the roadway. Since 2004,
Mr. Lemoine has inspected his parish’s roadways each weekday between the hours
of 6:30 a.m. and 5:00 p.m., traversing the entirety of Jackson Street every two
weeks. In all of his thirteen years with DOTD, Mr. Lemoine testified that he has
never noticed a defective condition in or around the area of Jackson Street adjacent
to Robbie G’s. Additionally, the record includes Mr. Lemoine’s road inventory
sheets which demonstrate that he rode Jackson Street before and after the accident,
on April 7, 2015 and April 21, 2015, respectively, and found no defects in the
roadway.
With respect to the DOTD’s process of reporting defects, Mr.
Lemoine testified that if he encounters something unusual or defective in the
roadway, he stops, attends to it, and then records it on his road inventory sheets.
While he agreed that an object on the right-of-way, such as a vehicle, could present
a dangerous situation in obstructing a motorist’s view, Mr. Lemoine has never
noticed any vehicles parked on the right-of-way in front of Robbie G’s while
conducting his inspections. Moreover, he testified that DOTD does not regard
temporarily parked vehicles as “permanent obstructions” warranting intervention,
as demonstrated by the following colloquy:
9 Q: . . . If you had ever seen a vehicle parked in the right-of-way there out in front of Robbie G’s, is that something that you would note?
A: No.
Q: And why not?
A: We only note obstructions on the right-of-way if we consider them to be permanent obstructions. And if they’re reported, we’ll also – we’ll also check it out. But Robbie G’s is a restaurant[.] . . . They get busy and people park wherever they can, and it’s for a period of thirty minutes to an hour and I’m probably not there when they’re parking there.
....
Q: So if there had been a permanent obstruction within the state right-of-way out in front of Robbie G, as I understand your testimony, you feel like that’s something that you would have noticed and you would have written that up?
A: Yes.
Q: But in terms of temporary parking there, that’s probably not something that you would have written up…
Q: … if you had noticed it?
DOTD also submitted the deposition testimony of its engineer and
District 8 Assistant District Administrator, Jonathan Lachney, P.E. Mr. Lachney
testified that the state’s right-of-way measures seven-and-a-half feet, with the
portion of Robbie G’s driveway taking up approximately six-and-a-half of those
feet. He confirmed that there is no right-of-way agreement between the State and
the owners of Robbie G’s which would thus enable the restaurant to permit its
10 patrons to park on the right-of-way, and that he was not aware of any instance in
which the restaurant reached out to inquire about parking on the right-of-way.
Moreover, Mr. Lachney testified that the State does not generally encourage
parking on its right-of-way, and that “[i]f Robbie G’s asked to build a parking lot
on our right-of-way, we would not agree. . . . [b]ecause it’s not supposed to be
occupied by right-of-way. The right-of-way is supposed to be for transportation
purposes.” He also stated that the roadway at issue “was not designed with parking
in mind behind the curb[.]” Regarding notice on the part of DOTD, Mr. Lachney
has never been aware of there being a problem in this location with people parking
on the right-of-way. While Mr. Lachney has admittedly patronized Robbie G’s on
occasion and even driven by the restaurant during its busier hours, he never
observed anyone parking on the right-of-way. Finally, he responded that it would
be “extraordinarily unusual” for Mr. Lemoine to conduct inspections outside of his
normal work hours on the weekends or between the hours of 5:00 p.m. and 8:00
a.m., as “[a]n inspection is a routine activity. He’s inspecting the roadway to
determine what activities may need to be performed by its workers.”
On appeal, Mr. Norman sets forth “a plethora of questions” in an
attempt to demonstrate that a genuine issue of material fact exists as to whether the
State had constructive knowledge of the alleged defect, and thus owed a duty to Mr.
Norman to prohibit parking along or adjacent to Jackson Street. Specifically, Mr.
Norman’s argument relies on the hypothesis that “[i]f DOTD personnel had
performed inspections of Jackson Street/LA Highway 488 on a Friday night, it
would have, undoubtedly, found numerous individuals parked on the shoulder and
right of way near Robbie G’s, all in violation of state law.” However, we find that
a genuine issue does not arise merely by asserting suppositions which are not
11 factually based. First, Mr. Norman alleges constructive notice may exist because
“employees of DOTD are familiar with Robbie G’s,” citing Jonathan Lachney’s
testimony that he had eaten at Robbie G’s on two occasions during the evening,
despite testifying that he had never observed any vehicles presenting a hazardous
obstruction on the right-of-way. He also argues that a genuine issue of material
fact exists as to whether it was “negligent for Lemoine, a state employee[,] to
violate department policy by conducting his day time inspections ‘every two weeks’
rather than on a biweekly basis[.]” While correct in finding that the term
“biweekly” may be interpreted as meaning either every two weeks or twice a
week, 4 Mr. Norman has not presented any evidence demonstrating that Mr.
Lemoine was required to inspect the roadways twice a week, rather than every two
weeks, as he has done since 2004.
Under these facts and circumstances, we find that DOTD’s duty to
maintain its highways and shoulders in a reasonably safe condition does not
encompass conducting non-routine inspections of its roadways beyond its
delineated obligations, where there is no indication that DOTD had received any
complaints or otherwise had notice of any alleged defect on its right-of-way.
Without any factual support rebutting the evidence submitted by DOTD on
summary judgment, we simply cannot accept Mr. Norman’s allegation that DOTD
would have “easily discovered” the alleged problem even had it, in arguendo, gone
above and beyond its obligations to conduct a Friday night inspection, as
“tantamount to constructive notice.” The unrebutted testimony of Kerry Lemoine
4 As of the publication of this opinion, Merriam-Webster Dictionary defines the term “biweekly” as meaning:
1: occurring every two weeks: FORTNIGHTLY [or] 2: occurring twice a week
12 established that, in any event, temporarily parked vehicles on the state’s right-of-
way do not constitute permanent obstructions that warrant DOTD intervention.
Moreover, while the term “biweekly” may be ambiguous, Mr. Norman has not
otherwise demonstrated that Mr. Lemoine’s inspections occurring every two weeks,
as they have since 2004, are in violation of DOTD policy. Therefore, we hold that
DOTD’s failure to conduct inspections afterhours and during weekends neither
implies nor imputes constructive knowledge on the part of the State.
While we find that DOTD did not owe a duty under these facts and
circumstances, which renders a discussion of any breach thereof moot, we agree
with our colleagues in the first and second circuits in holding the following:
Parked vehicles on the roadway do not constitute a defect in the roadway. In Naylor v. Louisiana Department of Public Highways, 423 So.2d 674 (La.App. 1st Cir.1982), writs denied, 429 So.2d 127, 134 (La.1983), the court found that a temporary situation existing in the travel portion of a highway does not constitute a defect as contemplated by La.C.C. art. 2317. A “defect” is some flaw or fault existing or inherent in the thing itself. The temporary existence of other objects which may constitute a hazard does not constitute a defect in the premises. Cf. Collins v. Christophe, 479 So.2d 537 (La.App. 1st Cir.1985), writ denied, 483 So.2d 1021 (La.1986). Thus, the temporary parking of vehicles on the roadway is not a defect in the roadway for which the DOTD would be strictly liable under La.C.C. art. 2317.
Kyle v. City of Bogalusa, 506 So.2d 719, 726 (La.App 1 Cir. 1987); see also
Goodliffe v. State ex rel. Dep’t of Transp. & Dev., 29,948, p. 6 (La.App. 2 Cir.
10/29/97), 702 So.2d 36, 40. Therefore, if a car parked on the roadway does not
constitute a defect in the roadway for which DOTD would be liable, then, a fortiori,
neither does a car parked off the roadway onto the right-of-way present an
unreasonably dangerous condition. As such, even if Mr. Norman had sufficiently
13 rebutted DOTD’s assertion of no duty with substantive factual support, a court
would be hardly constrained to find that DOTD had not breached its duty toward
Mr. Norman under these facts and circumstances. Moreover, no evidence has been
offered to show that but for its failure to conduct inspections on weekends,
evenings, and/or twice per week, DOTD would have taken steps to prohibit
parking on its right-of-way when it did not regard temporarily parked vehicles as a
permanent obstruction necessitating intervention and had no notice of any sight
obstructions posed on which to act.
While the questions raised concern the material fact of DOTD’s
negligence, we are reminded that a genuine issue only exists where reasonable
persons could disagree on the facts set forth before them. Merely posing
unsupported allegations, inferences, and speculations is not sufficient to create a
genuine issue of material fact where the summary judgment standard mandates that
one defending his claims from dismissal set forth factual support sufficient to raise
a genuine issue in dispute. Therefore, we decline to consider the questions raised
on appeal where Mr. Norman has failed to present any factual support with respect
to DOTD’s knowledge of, ultimately, a non-defect. Thus, we find that DOTD was
properly dismissed on summary judgment.
Summary Judgment in Favor of MSE
We now address Mr. Norman’s argument that the trial court erred in
granting summary judgment in favor of the lessee and operator of Robbie G’s
Restaurant, MSE. The trial court dismissed suit against MSE after finding that
there were no genuine issues of material fact and that MSE owed no duty to
passing motorists when it allegedly created a hazard in front of its restaurant by
14 permitting, or failing to prohibit, parking on the state’s right-of-way. Based upon
the evidence presented, however, we find that a genuine issue of material fact
remains as to whether the business activities of MSE in its operation of Robbie G’s
caused or contributed to the alleged sight obstruction and, further, whether that
obstruction was a cause-in-fact of Mr. Norman’s injuries.
In setting out to determine whether the trial court erred in granting
summary judgment, we are called to first examine MSE’s arguments before this
court. Citing La.Civ.Code art. 2317.1, MSE contends that because it merely leases
the property upon which the restaurant is situated and, further, because Mr.
Norman’s injuries occurred on the roadway, the law does not impose a duty upon it
to protect Mr. Norman from a thing over which it has no ownership or control. We
disagree for several reasons. First, and as discussed in more detail below, it is not
undisputed that the accident occurred entirely on the roadway. Second, courts of
this state have long held that liability under that article “is not based on ownership,
but on care, custody, and control.” Klein v. Cisco-Eagle, Inc., 37,398, p. 12
(La.App. 2 Cir. 9/24/03), 855 So.2d 844, 852. While an individual injured as a
result of an unreasonably dangerous condition existing on a landowner’s property
may proceed under either La.Civ.Code art. 2315 or 2317, both owners and
occupiers of land are under the same duty “to discover any unreasonably
dangerous conditions existing on their premises and to either correct those
conditions or warn victims of their existence.” Amest v. City of Breaux Bridge, 01-
1034, p. 1 (La.App. 3 Cir. 12/12/01), 801 So.2d 582, 584.
At the outset, the law is clear that MSE may neither be insulated from
a finding of duty nor absolved of liability simply on the basis of its status as non-
owner when the general duty to not obstruct roadways is well-established, and it
15 has been held that similarly situated entities may owe a duty not to obstruct the
vision of passing motorists depending on the facts presented. See Hakim v.
Albritton, 552 So.2d 548 (La.App. 2 Cir. 1989), La.R.S 32:296, and La.R.S.
32:143.5 Thus, it follows that the extent of the duty of a possessor of land to
prevent injury to persons on adjacent property must be determined by the facts and
circumstances of each case, and the question of whether the possessor caused or
contributed to the accident is a factual issue which should be decided at trial. See
Savarese v. Bye, 398 So.2d 1276 (La.App. 4 Cir. 1981). Finally, we note that
while the existence of a duty is a question of law, the issue may be appropriately
resolved by summary judgment “only when it is clear no duty exists as a matter of
law; and, the facts or credibility of the witnesses are not in dispute.” Parish v. L.M.
Daigle Oil Co., Inc., 98-1716, pp. 2-3 (La.App. 3 Cir. 6/23/99), 742 So.2d 18, 20.
In light of the following evidence presented, therefore, we hold that the trial court
erred in holding that MSE did not owe a duty, as a matter of law, on summary
judgment without necessarily engaging with the facts of MSE’s conduct in
contributing to the accident under a formal duty-risk analysis.
On appeal, Mr. Norman asserts that a genuine issue of material fact
exists as to whether MSE caused or contributed to the alleged sight obstruction that
blocked Mr. Dubois’s view. Specifically, he argues that MSE “repeatedly and
continuously” allowed patrons of Robbie G’s to park on the state’s right-of-way in
such a manner as to obstruct their view of the highway in attempting to exit the
5 Under La.R.S. 32:196, which generally proscribes the act of one parking in certain enumerated places, no person shall park a vehicle in “[a]ny place where parking will obscure or obstruct visibility of any traffic control device.” La.R.S. 32:196(A)(15). On the other hand, La.R.S. 32:296 specifically pertains to parking upon the highway shoulder and provides that, unless one of the enumerated situations not present in this case exists, then “[n]o person shall stop, park, or leave standing any unattended vehicle on any state highway shoulder, unless such stopping, parking, or standing is made necessary by an emergency[.]” La.R.S. 32:296(A).
16 premises. In his Petition, Mr. Norman alleged that on the date of the accident, “a
white pickup truck was parked on the state right-of-way of Hwy. 1208 at the
Robbie G’s business; Dubois states that this view of Jackson Street when he exited
the parking lot was partially obstructed in the area proceeded.” The following
deposition testimony of Mr. Dubois corroborates the allegations set forth in the
Petition:
I went to pull out, and . . . there was a jacked up four- wheel drive that was parallel with Jackson Street . . . . [The truck] was parked right along the edge of Jackson – well, right along the edge of the parking lot that is not marked. And I couldn’t . . . see the oncoming traffic. So I eased out slowly, and I was gonna make a left-hand turn . . . . [b]ut because of the truck blocking my view, I was gonna have to make a right[.]
[I]f you’re facing the building, on the right-hand side there’s a light pole or some kind of pole there. There’s one green grassy spot in that parking lot right there. That is where the truck was parked that was blocking my view. He was too close to Jackson Street, and there’s nothing – there’s no lines, there’s no parking spot, nothing’s labeled in that parking lot. So the guy that parked there was in the worst spot he could be and when I pulled out it was the worst time I could be.
Mr. Dubois also affirmatively responded that the parking lot was congested on the
night of the accident. While he did not know whether the truck obstructing his
view was a patron of Robbie G’s,6 Mr. Dubois testified, “personally, I wouldn’t
have parked there because I’d have been too close to the road to have somebody
come down the road and veer off and hit my vehicle. . . . But because of the
horrible parking that they have there, everybody just parks wherever.”
6 Mr. Dubois testified that only after he had spoken with a police officer on the scene and cleared his thoughts following the accident, did he seek out the identity of the driver of the truck parked on the right-of-way. However, in the midst of the accident, Mr. Dubois stated that the truck was no longer parked there.
17 Indeed, we agree with Mr. Norman’s proposition pursuant to
Shephard ex rel. Shephard v. Scheeler, 96-1690, 96-1720, p. 20 (La. 10/21/97),
701 So.2d 1308, 1319, that “[t]he primary safety purpose of the paved shoulder of
the highway is to provide an area for motorists who require a momentary stop, and
to protect a motorist who inadvertently leaves the roadway.” While the facts in
Shephard are somewhat distinct from those before us in that the Parish was
assessed with liability for its employee temporarily parking on the shoulder of a
highway, we nevertheless agree that “the continuous use of a fixed area of the
shoulder as a parking lot or a regular embarkation point . . . unreasonably impairs
its safety function as a recovery area.” Id.
Mr. Norman also submitted the deposition of Hanner Jeansonne, a
witness to the accident. When asked whether he had ever observed vehicles park
in front of Robbie G’s close to the edge of the right-hand lane of Jackson Street in
his many times patronizing the restaurant, Mr. Jeansonne replied: “I’ll be honest
with you. I park where I see an opening. I mean, there’s people that park in front
of the store, and people park on the side.” When asked if whether he ever had an
opportunity to pull out of the restaurant’s parking lot when it was busy, Mr.
Jeansonne replied, “[I]t’s always busy. . . . [W]hen it is busy, it is hard to get out
that road . . . on the side.” Ultimately, Mr. Jeansonne responded affirmatively that
his vision had been obstructed when exiting Robbie G’s parking lot on previous
occasions.
While neither property owners nor possessors are tasked with insuring
the safety of its visitors, it is nevertheless under a duty to operate its premises free
of conditions posing an unreasonable risk of harm. See Amest, 801 So.2d 852.
Our supreme court has held that “the question of whether a defect presents an
18 unreasonable risk of harm as ‘a disputed issue of mixed fact and law or policy that
is peculiarly a question for the jury or trier of the facts.’” Broussard v. State ex rel.
Office of State Bldgs., 12-1238, p. 9 (La. 4/5/13), 113 So.2d 175, 183 (quoting
Reed v. Wal-Mart Stores, Inc., 97-1174, p. 4 (La. 3/4/98), 708 So.2d 362, 364). In
addition to holding that whether a possessor of land caused or contributed to the
accident is a factual issue not suitable for resolution by summary judgment, we
find that the question presented of whether the business activities of MSE
contributed to the creation of an unreasonable risk of harm on the state’s right-of-
way is a “matter wed to the facts” that must be determined in light of the facts and
circumstances of each particular case. Id.
In defending his claim against disposition by summary judgment, Mr.
Norman’s burden was only to present factual support sufficient to establish the
existence of a genuine issue of material fact or that MSE was not entitled to
summary judgment. La.Code Civ.P. art. 966(D)(1). It was not, as MSE contends
on appeal, to produce factual support “sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial” as once required by the former
summary judgment law. La.Code Civ.P. art. 966, Official Revision Comments –
2015, comment (j). We conclude that Mr. Norman has sufficiently raised a
genuine issue of material fact with respect to whether a duty was owed by MSE
and whether its conduct contributed to the accident.
V.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s ruling granting
DOTD’s Motion for Summary Judgment. However, we reverse its decision
19 granting MSE’s Motion for Summary Judgment and remand the case for further
proceedings consistent with this opinion. Costs are assessed equally to Michael
Shelton Enterprises, Inc. and Simms Transportation, Inc.
AFFIRMED IN PART, REVERSED AND REMANDED IN
PART.
20 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
Conery, J., concurring in part, dissenting in part.
I agree with the majority that the summary judgment granted in favor of
Michael Shelton Enterprise, Inc. must be reversed.
I respectfully dissent, however, from the affirmation of the summary
judgment entered in favor of DOTD. Rather, I find that the presence of genuine
issues of material fact requires reversal of that ruling as well.
By its motion for summary judgment, DOTD asserts that no genuine issues of
material fact exist as to its actual or constructive notice of a defective condition
creating an unreasonable risk of harm as required by La.R.S. 9:2800. It is that notice
“which gives rise to the obligation to take adequate measures necessary to prevent
injury.” Johnson v. State, Dep’t of Transp. & Dev., 17-0973, p. 7 (La.App. 1 Cir.
4/3/19), _ So.3d _, _ (citing Rhodes v. State, Dep’t of Transp. & Dev., 95-1848 (La.
5/21/96), 674 So.2d 239). In the event DOTD has such notice, it is required to “take
reasonable measures to eliminate or reduce the risks associated with the dangerous
condition or may warn the public of the danger, risk, or hazard involved.” Id. at _
(citing Tassin v. Bendel, 07-1119 (La.App. 4 Cir. 7/9/08), 989 So.2d 217, writ
denied, 08-1940 (La. 11/10/08), 996 So.2d 1069, cert. denied, 556 U.S. 1222, 129
S.Ct. 2161 (2009)). Louisiana Revised Statutes 32:296 states in pertinent part:
A. No person shall stop, park, or leave standing any unattended vehicle on any state highway shoulder, unless such stopping, parking, or standing is made necessary by an emergency[.]
B. In case of an emergency, the driver of a vehicle may lawfully operate the vehicle on any state highway shoulder in accordance with the normal standards of prudent conduct to protect himself and others from harm. When the emergency ends, the vehicle shall not be operated on the state highway shoulder.
Discussing La.R.S. 32:296 within the context of an accident involving a
Parish truck parked partially on a highway shoulder, the supreme court explained
that “[t]he primary safety purpose of the paved shoulder of the highway is to provide
an area for motorists who require a momentary stop, and to protect a motorist who
inadvertently leaves the roadway.” Shephard v. Scheeler, 96-1690, p. 21 (La.
10/21/97), 701 So.2d 1308, 1319. The court further noted that “[t]he occasional and
transitory use of the shoulder by stopped vehicles is not incongruous with its
function as a safety device. Nevertheless, when the use of the shoulder is regular
and routine, the safety function is mitigated.” Id. Reviewing the facts of the accident
at issue, the supreme court pointedly explained that “the continuous use of a fixed
area of the shoulder as a parking lot or regular embarkation point for Parish workers
unreasonably impairs its safety function as a recovery area.” Id. Continuing, the
supreme court stated:
In the case sub judice, the probability of the harm and gravity of the harm caused by the Parish’s parking [its] truck on the shoulder greatly outweighed the cost of avoiding the risk by parking elsewhere. The use of the shoulder in a consistent and continuous manner rather than a transitory manner, accompanied by the failure to utilize an available safe area to park the truck constituted an unreasonable risk of harm to motorists. We therefore hold that the Parish breached its duty to use the shoulder in a reasonably safe manner, and that this breach was a legal cause of the accident. The harm that occurred in the instant
2 case was the very risk of harm contemplated by the duty to use the paved shoulder in a reasonable manner, namely that a vehicle that leaves the traveled portion of the highway would collide with a vehicle stopped in the recovery area.
Id.
In this case, the fact that the DOTD shoulder was used as a parking lot by
Robbie G’s on a nightly basis creates an issue as to the duty and breach of duty on
the part of DOTD. “[A] motion for summary judgment is inappropriate to dismiss
a negligence action when questions of fact exist regarding the duties owed or breach
of the same.” Simmons v. Sabine River Auth. Of La., 11-1146, p. 11 (La.App. 3 Cir.
8/15/12), 97 So.3d 1177, 1183, writ denied, 12-2043 (La. 11/16/12), 102 So.3d 40.
Moreover, as the Louisiana Supreme Court recently reiterated in Broussard v.
State, ex rel. Office of State Bldgs., 12-1238, p. 22 (La. 4/5/13), 113 So.3d 175, 191
“we emphasize again that each case involving an unreasonable risk of harm analysis
must be judged under its own unique set of facts and circumstances.”
Arguably, the continuous use of DOTD’s highway right-of-way by Robbie
G’s during peak traffic hours on a heavily traveled roadway in effect created a trap
not only for those attempting to enter the highway, but for those travelling on the
roadway itself. The pictures introduced in evidence clearly demonstrate the vision
limitations caused by the cars parked on DOTD’s right-of-way. See Shephard, 701
So.2d 1308.
Given the facts and circumstances of this case, I find that genuine issues of
material fact exist. Evidence introduced in connection with the motion for summary
judgment at issue indicates that it was a well-known and longstanding community
practice for Robbie G’s patrons to park inside of the DOTD right-of-way. Mr.
Dubois, for instance, described the parking at Robbie G’s as “horrible” and that
3 “everybody just parks where you can.” He described the situation as “something
that you can drive by and see every day.” When one witness to the accident, Mr.
Jeansonne, was asked during his deposition whether his view of oncoming traffic
had been hindered when leaving the restaurant, he explained that: “[I]t’s always
busy. I mean, I – you know, it is – when it is busy, it is hard to get out, and it’s hard
to get out that road, you know, on the side. I mean it is, you know.” When
subsequently asked whether “there is an obstruction to your vision when you’re
trying to look at the traffic,” Mr. Jeansonne confirmed that “It’s – it is.”
Although a single car parked in a right-of-way for a short period time may not
typically constitute a hazardous condition, the condition presented here, however,
may be so pervasive that constructive notice could be inferred by a trier of fact
making factual and credibility determinations. To the extent factual inferences are
available from the evidence, including the photos, they must be construed in favor
of the party opposing the motion. See Willis v. Medders, 00-2507 (La. 12/8/00), 775
So.2d 1049. Accordingly, I would reverse the summary judgment granted in favor
of DOTD and remand the entirety of this matter for further proceedings.
For these reasons, I concur in part and dissent in part.