Ewing v. State Ex Rel Dept. of Transp.

757 So. 2d 843, 2000 WL 276917
CourtLouisiana Court of Appeal
DecidedMarch 15, 2000
Docket99-1556
StatusPublished
Cited by4 cases

This text of 757 So. 2d 843 (Ewing v. State Ex Rel Dept. of Transp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ewing v. State Ex Rel Dept. of Transp., 757 So. 2d 843, 2000 WL 276917 (La. Ct. App. 2000).

Opinion

757 So.2d 843 (2000)

Virginia EWING, et al.
v.
STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

No. 99-1556.

Court of Appeal of Louisiana, Third Circuit.

March 15, 2000.

Mark Delphin, Delphin Law Firm, P.L.C., Lake Charles, Louisiana, Eulis Simien, Jimmy Simien, Simien & Simien, L.L.C., Baton Rouge, Louisiana, Counsel for Plaintiff-Appellant.

Frank Walker, Plauché, Smith & Nieset, Lake Charles, Louisiana, Counsel for Defendant-Gravity Drainage District No. 4.

*844 Chris John, Asst. City Attorney, Lake Charles, Louisiana, Counsel for Defendant-City of Lake Charles-Appellee.

Steven Beverung, Book & Beverung, Lake Charles, Louisiana, Counsel for Defendant-Sheriff of Calcasieu Parish-Appellee.

Fred Cappel, Raggio, Cappel, Chozen & Berniard, Lake Charles, Louisiana, Counsel for Defendant-Calcasieu Parish Police Jury-Appellee.

Joe Brame, Brame & McCain, Lake Charles, Louisiana, Victor Stilwill, Le Kohler, Deutsch, Kerrigan & Stiles, New Orleans, Louisiana, Counsel for Defendant-D.W. Jessen, Sr. and D.W. Jessen & Assoc.-Appellee.

Robert Ellender, Voohries & Labbe, Lafayette, Louisiana, Counsel for Defendant-D.W. Jessen, Sr.

(Court composed of Judge JIMMIE C. PETERS, Judge GLENN B. GREMILLION, and Judge ELIZABETH A. PICKETT).

GREMILLION, Judge.

The plaintiff, Virginia Ewing, individually and on behalf of her minor children, Aaron and Latasha Marie Myles, appeals the trial court's granting of summary judgment in favor of the defendants, the Calcasieu Parish Police Jury, D.W. Jessen, Sr., and D.W. Jessen & Associates. For the following reasons, we affirm.

FACTS

On June 24, 1996, Aaron, who was eleven years old, slipped and fell into the drainage ditch known as the Woodring Street lateral, which is located west of Goos Boulevard and east of the Calcasieu River in Lake Charles. As a result of this accident, Aaron nearly drowned, suffering massive brain damage. He remains in a comatose state to this day.

Ewing filed suit initially against the State, Through the Department of Transportation and Development, the Calcasieu Parish Gravity Drainage District No. 4 (Drainage District), the Calcasieu Parish Police Jury (Police Jury), the City of Lake Charles (City), and the Honorable Wayne McElveen, Sheriff of Calcasieu Parish. D.W. Jessen, Sr. and D.W. Jessen & Associates Civil Engineers[1] (Jessen) were added as defendants in Ewings' First Amending and Supplemental Petition.

Following numerous procedural maneuvers, the trial court granted summary judgment in favor of the Police Jury, finding that there was no genuine issue of material fact on the issue of the Police Jury's responsibility for the Woodring Street lateral. The trial court further granted summary judgment in favor of Jessen, finding that any claims against it were perempted by the ten year peremptive period contained in La.R.S. 9:2772. This appeal followed.

ISSUES

Although Ewing raises six assignments of error on appeal, her argument boils down to whether the trial court erred in granting summary judgment in favor of the Police Jury and Jessen.

SUMMARY JUDGMENT

Pursuant to La.Code Civ.P. art. 966, summary judgment is favored. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal an absence of any genuine issues of material fact, judgment shall be rendered in favor of the mover if it is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The burden of proving that summary judgment is appropriate remains with the mover. "In doing so, the moving party's supporting documentation must be sufficient *845 to establish that no genuine issue of material fact remains at issue." Mouton v. Sears Roebuck, 99-669, p. 2 (La.App. 3 Cir. 11/3/99); 748 So.2d 61, 65, quoting Daigrepont v. AAA Transp. Co., 98-1329, p. 4 (La.App. 3 Cir. 3/3/99); 736 So.2d 923, 926. "[O]nce the mover has made a prima facie case that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain." Hayes v. Autin, 96-287, p. 6 (La.App. 3 Cir. 12/26/96); 685 So.2d 691, 694. Unless the non-moving party substantiates that she will be able to satisfy her evidentiary burden of proof at trial through the presentation of factual evidence, judgment will be granted in favor of the mover. La. Code Civ.P. art. 966(B)(2).

Summary judgments are reviewed de novo under the same criteria that govern the trial court's consideration of whether the grant of summary judgment is proper. Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991).

POLICE JURY

The Police Jury introduced several depositions and an affidavit into evidence in support of its motion for summary judgment. In his affidavit, Albert Prater, the Public Works Administrative Assistant for Calcasieu Parish, stated that the Police Jury is a political subdivision of the state, separate and apart from the Drainage District. He further stated that the Woodring Street lateral is located in north Lake Charles and that it was not "designed, constructed, installed or maintained at any time subsequent to construction by the Calcasieu Parish Police Jury, or any of its departments or agencies."

In his deposition, Prater stated that the Police Jury Public Works Department maintains public roads within the parish, but does not maintain any off-road drainage, any roads or drainage within the City of Lake Charles or any other city within the parish, or any state highway. Prater stated that the Woodring Street lateral is not located within the jurisdiction of the Police Jury, but rather is within the jurisdiction of the City and Drainage District.

Mike Wittler, superintendent of right-of-way work for the Drainage District, stated that responsibility for maintaining all drainage laterals belongs to the Drainage District. Although the Drainage District does not own the property along the laterals, it performs maintenance work on the laterals, including spraying the banks of the laterals three times per year as part of a vegetation management program and removing any obstructions to the flow of the laterals. Wittier testified that the Drainage District dredged the Woodring Street lateral for 100 feet immediately west of Goos Boulevard in May 1994 and built a pumping station half-way between the accident site and the Calcasieu River during two phases in 1992-93 and 1994-95. Wittler further stated that the Drainage District received a request from the City and the Police Jury on August 10, 1995, to investigate the possibility of fencing the laterals within the Drainage District following another incident where a child nearly drowned in a drainage lateral. He stated that the Drainage District eventually decided that it would not be reasonably feasible to fence all of the laterals within its district.

D.W. Jessen, Jr. (Jessen Jr.), a civil engineer with the engineering firm of D.W. Jessen and Associates, was deposed on behalf of the City. He stated that the purpose of the Woodring Street lateral is to provide drainage for the area of Lake Charles where it is located. It was Jessen Jr.'s opinion that the open channel of the Woodring Street lateral, located downstream of Goos Boulevard, was maintained by the Drainage District and that it performed inspections of the laterals in that area.

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Bluebook (online)
757 So. 2d 843, 2000 WL 276917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewing-v-state-ex-rel-dept-of-transp-lactapp-2000.