STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0183
JACQUELINE F. POTTINGER, INDIVIDUALLY AND IN HER CAPACITY AS HEIR AND LEGATEE OF JEROME H. FOREMAN, AND IN HER CAPACITY AS THE INDEPENDENT EXECUTRIX OF THE SUCCESSION OF JEROME H. FOREMAN AND CASSAUNDRA M. FOREMAN, INDIVIDUALLY AND IN HER CAPACITY AS HEIR AND LEGATEE OF JEROME H. FOREMAN
VERSUS
NEDRA PRICE, LIBERTY MUTUAL INSURANCE COMPANY, DEMETRA LYNUTE, AND SAFEWAY INSURANCE COMPANY OF LOUISIANA
JUDGMENT RENDERED: OCT 2 3 2019
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge • State of Louisiana Docket Number C655118 • Section " 23"
The Honorable William Morvant, Presiding Judge
Leonard L. Levenson ATTORNEYS FOR APPELLANTS Christian W. Helmke PLAINTIFFS— Jacqueline F. Pottinger Colleen Boyle Gannon and Cassaundra M. Foreman Donna R. Barrios New Orleans, Louisiana
Rachel M. Roe ATTORNEYS FOR APPELLEES Renee M. Credeur DEFENDANTS— Nedra S. Price and Baton Rouge, Louisiana Liberty Mutual Insurance Company
BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.
Qi,hccu 1 VN- Ae R d"t,LfR i. C b%Aa m j% WELCH, J.
In this motor vehicle -pedestrian accident case, the victim' s survivors,
plaintiffs Jacqueline F. Pottinger and Cassaundra M. Foreman, appeal a summary
judgment granted in favor of the defendant driver and her insurer, Nedra Price and
Liberty Mutual Insurance Company (" Liberty"), which dismissed their claims
against the defendants, with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Around 9: 00 p.m. on February 21, 2016, Jerome Foreman was walking
across Airline Highway near its intersection with Louisiana Highway 73 in East
Baton Rouge Parish. Mr. Foreman walked into the oncoming northbound lane of
traffic from the grassy median that separates the northbound and southbound travel
lanes. At least two motor vehicles struck Mr. Foreman, including the vehicle
operated by Ms. Price. The second vehicle that struck Mr. Foreman was operated
by Demetra Lynute, who was insured by Safeway Insurance Company
Safeway"). Mr. Foreman died at the scene of the accident.
The plaintiffs instituted this wrongful death and survival action against the
operators and liability carriers of the motor vehicles that struck their father. The
plaintiffs alleged that the defendants breached a duty owed to Mr. Foreman to
operate their motor vehicles in a safe and prudent manner, to obey all traffic laws,
and to yield to pedestrians. The plaintiffs argued that the defendants' breach of
this duty was the cause -in -fact and legal cause of Mr. Foreman' s damages. The
plaintiffs ultimately settled with Ms. Lynute and Safeway, who were dismissed
with prejudice.
Thereafter, the defendants filed a motion for summary judgment, alleging
that there were no genuine issues as to material fact as to the plaintiffs' negligence
claim. The defendants pointed out the absence of factual support for the causation
element essential to the plaintiffs' negligence action and argued that the plaintiffs
E would be unable to bear their burden of proof at trial. In support of their motion,
the defendants attached the plaintiffs' petition; the affidavit of an accident
reconstructionist expert, Michael S. Gillen; the affidavit of an independent witness,
Ramzy Laymon; the affidavit of Ms. Price; and the Louisiana State Police Uniform
Crash Report documenting the accident.
The plaintiffs opposed the motion, attaching the deposition of Ms. Price and
the affidavit of Ms. Pottinger. The defendants objected to the affidavit of Ms.
Pottinger, submitted in opposition by the plaintiffs, alleging it was not based on
personal knowledge.'
Following a hearing, the trial court ruled that the police report and affidavit
of Ms. Pottinger were inadmissible and granted summary judgment in favor of the
defendants, dismissing the plaintiffs' claims with prejudice. The trial court signed
a judgment in accordance therewith on September 10, 2018. The plaintiffs now
appeal.
LAW AND DISCUSSION
Assignment ofError No. 1: Exclusion of the Police Report
In their first assignment of error, the plaintiffs contend the trial court erred
by excluding the Louisiana State Police Uniform Crash Report that was submitted
by the defendants in support of their motion for summary judgment. The plaintiffs
argue that neither party objected to nor sought to exclude the police report and that
the trial court abused its discretion by finding the police report inadmissible ex
proprio motu.
1 In her affidavit, Ms. Pottinger stated that "[ s] he knows that at the time of her father' s death, there was no reason why her father would wish or attempt to end his own life." The trial court found Ms. Pottinger' s affidavit inadmissible; that ruling is not at issue on appeal. We note, however, that the defendants improperly raised their objection to Ms. Pottinger' s affidavit in a motion to strike. Under La. C. C. P. art. 966( D)( 2), any objection to any supporting document
must be raised in a timely -filed written opposition or reply memorandum. This provision changes prior summary judgment law by specifically removing the motion to strike as a means of raising an objection to a document offered by an adverse party in support of, or in opposition to, a motion for summary judgment. See Comments --2015( k) to La. C. C. P. art. 966. The defendants should have raised this objection in their reply memorandum.
3 The only documents that may be filed in support of or in opposition to the
motion are pleadings, memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written stipulations, and admissions."
La. C. C. P. art. 966( A)(4). Additionally, La. C. C. P. art. 966( D)( 2) sets forth that
the trial court " may consider only those documents filed in support of or in
opposition to the motion for summary judgment and shall consider any documents
to which no objection is made." ( Emphasis added.) Louisiana Code of Civil
Procedure article 966( D)( 2) states that "[ a] ny objection to a document shall be
raised in a timely filed opposition or reply memorandum." Article 966( D)( 2)
further provides that the trial court " shall consider all objections prior to rendering
judgment" and " shall specifically state on the record or in writing which
documents, if any, it held to be inadmissible or declined to consider."
Here, no party objected to the police report in a timely filed written
opposition or reply memorandum as required by La. C. C. P. art. 966(D)( 2). Thus,
since the police report was not objected to in accordance with La. C. C. P. art.
966( D)( 2), it must be considered by the trial court. See Mariakis v. N. Oaks
Health Sys., 2018- 0165 ( La. App. 1St Cir. 9/ 21/ 18), 258 So. 3d 88, 96. At the
hearing on the motion for summary judgment, however, the trial court found that
the police report was not of sufficient evidentiary quality to be considered on a
motion for summary judgment and stated on the record, " I cannot consider the
police report. -2 Therefore, because no objection was made, the trial court clearly
erred by failing to consider and by excluding the police report because the trial
court was required under La. C. C. P. art. 966( D)( 2) to consider that document.
2 While not considering the police report, the trial court found it inadmissible for three reasons: 1) it was not one of the documents listed in La. C. C. P. art. 966( A)(4); ( 2) it was an unsworn and unverified document because it was not attached to an affidavit or otherwise authenticated ( see Lewis v. Jabbar, 2008- 1051 ( La. App. 1St Cir. 1/ 12/ 09), 5 So. 3d 250, 255, and Estate of Loveless ex rel Loveless v. Gay, 41, 575 ( La. App. 2nd Cir. 12/ 13/ 06), 945 So. 2d 233, 236 ( a police report, which is not authenticated or sworn to in any way, is not competent summary judgment evidence)); and ( 3) it constituted inadmissible hearsay and did not fall within an
exception to the hearsay rule, La. C. E. art. 803.
M The appellate standard of review for the trial court' s failure to consider a
document filed in support of or in opposition to a motion for summary judgment to
which no objection is made is a res nova issue before this court. Generally, the
standard of review for a trial court' s evidentiary rulings in non -summary judgment
matters is abuse of discretion; the trial court' s ruling will not be disturbed unless it
is clearly erroneous. See Gorman v. Miller, 2012- 0412 ( La. App. 1St Cir.
11/ 13/ 13), 136 So. 3d 834, 840 ( en Banc), writ denied, 2013- 2909 ( La. 3/ 21/ 14),
135 So. 3d 620. De novo review is limited to consequential errors which
interdicted the factual findings, thereby prejudicing or tainting the judgment
rendered. See Wingfield v. State, ex rel. Dep' t of Transp. and Dev., 2001- 2668
La. App. 1St Cir. 11/ 8/ 02), 835 So. 2d 785, 799, writs denied, 2003- 0313, 2003-
0339, 2003- 0349 ( La. 5/ 30/ 03), 845 So. 2d 1059- 1060, cert. denied, 540 U.S. 950,
124 S. Ct. 419, 157 L. Ed. 2d 282 ( 2003). Accordingly, we find that the abuse of
discretion standard applies to the trial court' s ruling on an objection to a document
filed in support of or in opposition to a motion for summary judgment that is raised
by a party in a timely filed opposition or reply memorandum in accordance with
La. C. C. P. art. 966( D)( 2).
However, when a document filed in support of or in opposition to a motion
for summary judgment is not objected to by any party, La. C. C. P. art. 966( D)( 2)
requires the trial court to consider such documents. The trial court' s failure to
consider non -objected to documents on a motion for summary judgment is an
application of an incorrect principle of law, and therefore, a legal error. See
Maldonado v. Kiewit Louisiana Co., 2012- 1868 ( La. App. 1St Cir. 5/ 30/ 14), 152
So. 3d 909, 918, writ denied, 2014- 2246 ( La. 1/ 16/ 15), 157 So. 3d 1129. A legal
error is prejudicial when such error materially affects the outcome and deprives a
party of substantial rights. Tanana v. Tanana, 2012- 1013 ( La. App. 1St Cir.
5/ 31/ 13), 140 So. 3d 738, 741.
5 Generally, de novo review of legal errors is limited to prejudicial errors.
Maldonado, 152 So. 3d at 918- 19. However, the law is well settled that the trial
court cannot make credibility determinations, evaluate testimony, or weigh
conflicting evidence in deciding a motion for summary judgment. Adolph v.
Lighthouse Prop. Ins. Corp., 2016- 1275 ( La. App. 1st Cir. 9/ 8/ 17), 227 So. 3d
316, 321. On motions for summary judgment, appellate courts review evidence de
novo using the same criteria that govern the trial court' s determination of whether
summary judgment is appropriate, by asking the same questions: whether there is
any genuine issue of material fact and whether the mover is entitled to judgment as
a matter of law. Georgia- Pac. Consumer Operations, LLC v. City of Baton
Rouge, 2017- 1553 ( La. App. 1st Cir. 7/ 18/ 18), 255 So. 3d 16, 22, writ denied,
2018- 1397 ( La. 12/ 3/ 18), 257 So. 3d 194. Therefore, on motions for summary
judgment, we find that the trial court' s failure to consider a document filed in
support of or in opposition to the motion to which no objection is made is a legal
error subject to a de novo standard of review on appeal, regardless of whether such
error is prejudicial. Therefore, we must consider the non -objected to police report,
and decide de novo, whether we should give any evidentiary value to the report.
The police report is an unsworn and unverified document because it was not
attached to an affidavit or otherwise authenticated. See Bunge North America,
Inc. v. Board of Commerce & Industry, 2007- 1746 ( La. App. 1st Cir. 5/ 2/ 08),
991 So. 2d 511, 527, writ denied, 2008- 1594 ( La. 11/ 21/ 08), 996 So. 2d 1106. The
police report also constitutes inadmissible hearsay. See La. C. E. arts. 801- 803. It
has no evidentiary value in creating a genuine issue of material fact. See Lewis, 5
So. 3d at 255, and Estate of Loveless ex rel Loveless, 945 So. 2d at 236 ( a police
report, which is not authenticated or sworn to in any way, is not competent
summary judgment evidence). Accordingly, in the matter before us, after
3 conducting a de novo review of the police report, we find that it has no evidentiary
value and does not create a genuine issue of material fact.
Assignment ofError No. 2: Summary Judgment
Summary judgment must be rendered in the defendants' favor, as the
movers, if the pleadings, memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written stipulations, and admissions
show that there is no genuine issue as to material fact and that the defendants are
entitled to judgment as a matter of law. La. C. C. P. art. 966( A)(3) and ( 4).
The burden of proof on a motion for summary judgment rests with the
mover: here, the defendants. La. C. C. P. art. 966( D)( 1). In this matter, the
defendants will not bear the burden of proof at trial; the burden of proof at trial
rests with the plaintiffs. Accordingly, once the defendants properly support their
motion for summary judgment, then under La. C. C. P. art. 966( D)( 1), they need
only point out to the trial court the absence of factual support for one or more
elements essential to the plaintiffs' negligence claim: duty, breach, cause -in -fact,
legal cause, or actual damages. The failure of the plaintiffs to produce evidence of
a material factual dispute mandates the granting of the motion. See Holt v.
Torino, 2012- 1579 ( La. App. 1St Cir. 4/ 26/ 13), 117 So. 3d 182, 184, writ denied,
2013- 1161 ( La. 8/ 30/ 13), 120 So. 2d 267.
Thereafter, the burden shifts to the plaintiffs to produce factual support
sufficient to establish the existence of a genuine issue of material fact, or that the
defendants are not entitled to judgment as a matter of law. La. C. C. P. art.
966( D)( 1). The plaintiffs may not rest on the mere allegations of denials in their
pleadings, but their responses must set forth specific facts showing that there is a
genuine issue for trial. If the plaintiffs do not so respond, summary judgment, if
appropriate, shall be rendered against them. See La. C. C. P. art. 967( B). If,
however, the defendants fail in their burden to show an absence of factual support
7 for one or more of the elements of the plaintiffs' negligence claim, the burden
never shifts to the plaintiffs, and the defendants are not entitled to summary
judgment. See Mitchell v. Aaron' s Rentals, 2016- 0619 ( La. App. Pt Cir.
4/ 12/ 17), 218 So. 3d 167, 172.
In determining whether summary judgment is appropriate, appellate courts
review evidence de novo under the same criteria that govern the trial court' s
determination of whether summary judgment is appropriate. Juge v. Springfield
Wellness, L.L.C., 2018- 0736 ( La. App. Pt Cir. 2/ 28/ 19), 274 So. 3d 1, 5, writ
denied, 2019- 0513 ( La. 5/ 28/ 19), 273 So. 3d 309.
Louisiana courts have adopted a duty -risk analysis in determining whether to
impose liability under the general negligence principles as set forth in the Civil
Code. See La. C. C. art. 2315; Brewer v. J.B. Hunt Transport, Inc., 2009- 1408
La. 3/ 16/ 10), 35 So. 3d 230, 240. In an action to recover damages for injuries
allegedly caused by another' s negligence, the plaintiff has the burden of proving
negligence on the part of the defendant by a preponderance of the evidence.
Hanks v. Entergy Corp., 2006- 0477 ( La. 12/ 18/ 06), 944 So. 2d 564, 578. In
order for liability to attach under Louisiana' s duty -risk analysis, the plaintiffs must
prove five separate elements:
1) the defendant had a duty to conform his conduct to a specific standard (the traditional duty element);
2) the defendant' s conduct failed to conform to the appropriate standard ( the breach element);
3) the defendant' s substandard conduct was a cause in fact of the plaintiff' s injuries ( the cause -in -fact element);
4) the defendant' s substandard conduct was a legal cause of the plaintiff' s injuries ( the scope of liability or scope of the risk element); and
5) actual damages ( the damages element). A negative answer to any of the inquiries of the duty -risk analysis results in a
determination of no liability. Lemann v. Essen Lane Daiquiris, Inc., 2005- 1095
La. 3/ 10/ 06), 923 So. 2d 627, 632- 33. See also Stafford v. Exxon Mobile Corp.,
2016- 1067 ( La. App. 1St Cir. 2/ 17/ 17), 212 So. 3d 1257, 1262, writ denied, 2017-
0447 ( La. 4/ 24/ 17), 221 So. 3d 67.
Motorists are not the insurers of pedestrians' safety. Uriegas v. Gainsco,
94- 1400 ( La. App. 3rd Cir. 9/ 13/ 95), 663 So. 2d 162, 171, writ denied, 95- 2485
La. 12/ 15/ 95), 664 So. 2d 458. A pedestrian has a statutory duty to yield to traffic
in the roadway in the absence of a marked crosswalk. La. R.S. 32: 213( A). A
pedestrian must also exercise reasonable care to avoid leaving a curb or other place
of safety beside the roadway and walking into the path of a vehicle. La. R.S.
32: 212( B); Hundley v. Harper Truck Line, Inc., 28, 613 ( La. App. 2n1 Cir.
9/ 25/ 96), 681 So. 2d 46, 48.
A driver is statutorily obligated to exercise due care to avoid colliding with
any pedestrian upon any roadway, to give warning by sounding the horn when
necessary, and to exercise proper precaution upon observing any child, or confused
or incapacitated person upon a highway. La. R.S. 32: 214; Rideau v. State Farm
Mut. Auto. Ins. Co., 2006- 0894 ( La. App. Pt Cir. 8/ 29/ 07), 970 So. 2d 564, 577,
writ denied, 2007- 2228 ( La. 1/ 11/ 08), 972 So. 2d 1168. Moreover, a motorist is
not held to the highest standard of care in guarding against unexpected or unusual
obstructions in the road. A motorist has no special duty to anticipate the presence
of a pedestrian in a roadway where there is no crosswalk. A motorist has a right to
assume that a pedestrian will remain in a position of safety and will not attempt to
enter the path of a moving vehicle. However, a motorist may not blindly rely upon
this assumption when he sees, should have seen, or anticipates that the pedestrian
is going to cross the path of his vehicle. When a motorist sees, should have seen,
or anticipates that the pedestrian is going to cross the path of his vehicle, the
Oj motorist must exercise reasonable care to protect the pedestrian. Uriegas, 663 So.
2d at 172.
Furthermore, as a general rule, a motorist may assume that the road is safe
for travel even at night. This general rule is subject to the exception that when
driving after dark or in circumstances of limited or impaired visibility, a motorist
must observe and control his vehicle in order to avoid discernable objects in his
path of travel; that is, in adverse conditions, a greater degree of care must be
exercised. Wylie v. Peltier, 2010- 0332 ( La. App. 3rd Cir. 11/ 3/ 10), 2010 WL
4325838, at * 5 ( unpublished). However, a night driver is not charged with the
duty of guarding against striking unexpected or unusual obstructions which are
difficult to see and which the driver had no reason to anticipate he would encounter
on the highway. Smith v. City of Monroe, 52, 605 ( La. App. 2nd Cir. 4/ 10/ 19),
267 So. 3d 1218, 1222. Accordingly, a driver is liable for striking a pedestrian
only when there is an opportunity to appreciate the pedestrian' s peril in time to
avoid the accident. Wylie, 2010 WL 4325838, at * 5.
In their memorandum, the defendants argued the absence of factual support
for the causation element essential to the plaintiffs' negligence action. The
defendants argued that while driving down Airline Highway within the speed limit
on the night of the accident, Ms. Price saw Mr. Foreman walk in front of her
vehicle. She " swerved and stopped as soon as she could," but there was " nothing
that she could have done to avoid this accident."
Independent witness Ramzy Laymon stated that on the night of the accident,
he was driving northbound on Airline Highway. Mr. Laymon stated that his
vehicle is equipped with high- intensity headlights that allow him to see from far
distances. As he was driving, he stated that he saw a man run straight towards the
front of his vehicle, but was able to quickly swerve just in time to avoid hitting the
pedestrian. Mr. Laymon further stated that he saw the pedestrian continue to run in
10 front of other vehicles when he looked in his rearview mirror, and that eventually,
he saw a vehicle hit the pedestrian, at which point he pulled over to be a witness
for the police.
Ms. Price stated that on the night of the accident, she was driving
northbound on Airline Highway within the speed limit when she saw what looked
like an older man with white hair quickly walk in front of her vehicle. She stated
that she attempted to swerve to the right as soon as she saw him, but that it was too
late; she hit the pedestrian with the driver' s side of her vehicle. She stated that as
soon as she hit the pedestrian with her vehicle, she pulled onto the shoulder and
dialed 911.
After reviewing the evidence, the defendants' accident reconstructionist
expert, Michael S. Gillen, stated that conditions on the night of the accident were
dry, clear, and dark. There were no streetlights illuminating Airline Highway in
the area where the accident occurred, nor were there any pedestrian crossings. Mr.
Gillen stated that Mr. Foreman was wearing dark upper body clothing, light lower
body clothing, and no reflective materials. Mr. Foreman had parked his vehicle on
the right shoulder of northbound Airline Highway, which could have distracted
approaching drivers and provided a physical barrier limiting a potential escape path
for any swerving vehicle.
Mr. Gillen stated that the typical time for a driver to perceive and react
PRT") to a normal road event is 1. 5 seconds, but unexpected or more complex
events require more time for a person to process. A reduction in overall visibility
in darkness may result in a PRT of 2. 0 seconds or more. Mr. Gillen stated:
Since Mr. Foreman was impacted by the left side of Ms. Price' s [ vehicle], Ms. Price would have been able to observe Mr. Foreman for at most 190ft from the point of impact ( POI). Traveling at 55mph, Ms. Price would have been 29ft from when beginning an avoidance maneuver after a 2. Osec PRT. Ms. Price would not have been able to come to a stop in this distance with full
11 braking. If Ms. Price had applied full braking, she would have decelerated to 49mph and still would have impacted Mr. Foreman.
Ms. Price' s headlights would have illuminated approximately ... 190ft directly in front of her [ vehicle] to its left. In the area of the accident, Mr. Foreman had approximately 0. 7mi ( 3700ft) of unobstructed sight
distance to approaching traffic. Mr. Foreman would be able to see approaching traffic traveling at 55mph for over 40sec before it reached his position. Mr. Foreman
had a greater opportunity to observe approaching traffic.
With his [ high-intensity discharge headlamps] Mr. Laymon would have approximately 240ft illuminated in front of his vehicle on its left side ( 50ft more than Ms. Price). After a 2. Osec PRT, Mr. Laymon would have been able to perform a normal swerve at 55mph to avoid Mr. Foreman. [ Footnotes omitted.]
While the defendants argued the absence of factual support for the legal
cause element essential to the plaintiffs' negligence action, the arguments set forth
in their memorandum and supporting documents actually pointed out the absence
of factual support for the duty and breach elements essential to the plaintiffs'
negligence action. The defendants have shown that while Ms. Price was statutorily
obligated to exercise due care to avoid colliding with any pedestrian upon any
roadway, she had no special duty to anticipate the presence of Mr. Foreman in
Airline Highway where there was no crosswalk. See La. R.S. 32: 213( A), La. R.S.
32: 214, and Uriegas, 663 So. 2d at 172. Furthermore, as a night driver, Ms. Price
had no duty to guard against striking an unexpected or unusual obstruction, such as
a pedestrian, which was difficult to see and which she had no reason to anticipate
she would encounter on Airline Highway. See Smith, 267 So. 3d at 1222.
Furthermore, the defendants' expert testified that based on the conditions present at
the time of the accident, there was no way Ms. Price could have avoided hitting
Mr. Foreman with her vehicle. Thus, she cannot be liable for striking Mr. Foreman
12 when there was no opportunity to appreciate Mr. Foreman' s peril in time to avoid
the accident. See Wylie, 2010 WL 4325838, at * 5.
Upon the defendants' demonstration of the lack of factual support for the
duty and breach elements of the plaintiffs' claim, under La. C. C. P. art. 966( D)( 1),
the burden then shifted to the plaintiffs to produce factual support sufficient to
establish the existence of a genuine issue of material fact, or that the defendants
were not entitled to judgment as a matter of law. In opposition, the plaintiffs
argued that the affidavit of Mr. Laymon conflicted with the police report and his
prior handwritten statements to police such that genuine issues of material fact
exist as to what Mr. Laymon did or did not see regarding the accident. The
plaintiffs also averred that genuine issues of material fact exist regarding whether
Ms. Price observed Mr. Foreman in sufficient time to avoid striking him, including
whether Ms. Price saw other vehicles on the road brake and/ or swerve to avoid a
collision with Mr. Foreman. The plaintiffs also argued that genuine issues of
material fact exist regarding the reliability of Mr. Gillen' s testimony, averring that
there was a lack of independent inspection or verification of the information
reviewed by him.'
In support of their opposition, the plaintiffs attached the deposition of Ms.
Price, which contains testimony consistent with her affidavit. At the hearing on the
defendants' motion for summary judgment, the trial court stated: " In opposition,
there' s no real direct evidence or testimony that contradicts the Price, Laymon[,] or
the Gillen affidavits. The only thing plaintiff offers is the deposition of Ms. Price,
which in my opinion, doesn' t change the facts."
3 On appeal, the plaintiffs argue that Mr. Gillen did not provide his methodology in his affidavit to support his calculations on stopping times. However, the plaintiffs did not raise that issue below and cannot raise it for the first time on appeal. See Poole v. Guy Hopkins Constr. Co., 2016- 1450 ( La. App. 1St Cir. 11/ 1/ 17), 233 So. 3d 165, 172 n.4, writ denied, 2017- 2023 ( La. 2/ 2/ 18), 235 So. 3d 1109. Moreover, any challenge to the qualifications or methodology of an expert must be raised in a pretrial motion in accordance with La. C. C. P. art. 1425( F). See Adolph, 227 So. 3d at 321.
13 We agree. The plaintiffs failed to produce evidence of a material factual
dispute regarding the plaintiffs' negligence action; accordingly, summary judgment
was proper. See Holt, 117 So. 3d at 184. Our review of the record shows that no
genuine issues of material fact exist as to whether Ms. Price acted reasonably
under the circumstances she encountered the night of February 21, 2016, which
mandates summary judgment in her favor. Accordingly, the trial court' s
September 10, 2018 judgment is affirmed.
DECREE
The trial court' s September 10, 2018 judgment is affirmed. All costs of this
appeal are assessed to the plaintiffs/ appellants, Jacqueline F. Pottinger and
Cassaundra M. Foreman.
AFFIRMED.