Judgment rendered November 15, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,342-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
KATHY NOLAND, ET AL Plaintiffs-Appellants
versus
HERMAN LENARD, ET AL Defendants
Appealed from the Second Judicial District Court for the Parish of Jackson, Louisiana Trial Court No. 32,142
Honorable William R. “Rick” Warren, Judge
T. TAYLOR TOWNSEND, LLC Counsel for Appellants, By: T. Taylor Townsend Kathy Noland and James Noland YOCOM LAW FIRM, LLC By: Jimmy “Jimbo” Yocom, Jr.
JEFF LANDRY Counsel for Appellee, Attorney General State of Louisiana, through the DOTD JEANNIE C. PRUDHOMME GREGORY S. BARKLEY Assistant Attorneys General
Before PITMAN, HUNTER, and MARCOTTE, JJ. PITMAN, C. J.
Plaintiffs-Appellants Kathy Noland and James Noland (collectively,
the “Nolands”) appeal the district court’s granting of a motion for summary
judgment in favor of Defendant-Appellee the State of Louisiana, Department
of Transportation and Development (the “DOTD”). For the following
reasons, we affirm.
FACTS
On April 7, 2010, the Nolands filed a petition for damages and named
as defendants Herman Lenard and the Town of Chatham. They stated that
on or about April 16, 2009, Mrs. Noland was sitting in their parked vehicle
outside of J&H Cookin (“J&H”), a restaurant owned by Lenard, when their
vehicle was struck by another vehicle that veered off Louisiana Highway 4.
They argued that the cause of the collision was the location of the parking
area adjacent to the highway, which was an unreasonably dangerous and
unapparent roadway hazard, and that it could have been prevented if Lenard
provided a reasonably safe parking area. They further contended that the
Town of Chatham had a duty to maintain highways and roadways within its
territorial confines in a reasonably safe condition and manner and that it
breached that duty by allowing Lenard to maintain a parking area in front of
the business and adjacent to Highway 4 without a safe zone. The Nolands
alleged that as a result of the collision, Mrs. Noland suffered damages and
losses, including physical pain and suffering, mental pain and anguish, loss
of income, disfigurement, disability and medical bills. They alleged that Mr.
Noland suffered a loss of consortium, services and society with his wife.
On September 29, 2010, the Nolands amended their petition to add the
DOTD as a defendant. They explained that the Town of Chatham and/or the DOTD had a duty to maintain highways and roadways in a reasonably safe
condition and that they breached that duty by allowing Lenard to maintain a
parking area adjacent to Highway 4 without a safe zone.
On November 19, 2020, the DOTD filed an answer. It stated that the
conditions present at the location of the collision did not present an
unreasonable risk of harm to the public and that no unreasonably dangerous
conditions existed. It alleged the fault and/or negligence of Danny Nelson
by driving at an excessive rate of speed, driving in a careless and reckless
manner and failing to maintain control of his vehicle.
The Nolands’ claims against Lenard and the Town of Chatham were
dismissed with prejudice.
On July 22, 2022, the DOTD filed a motion for summary judgment. It
denied any and all allegations of fault or negligence asserted by the Nolands;
denied that it owed any duty whatsoever in this instance to any party or
person; and denied that there were any unreasonably dangerous defects in or
on the highway, roadway or shoulder over which it allegedly had
responsibility. It stated that the Nolands had not presented any evidence of
an unreasonably dangerous defect or condition on the section of roadway or
shoulder at issue. It contended that the Nolands could present no evidence
of any negligence or liability on its part, nor could they show that it violated
any duty allegedly owed to them. It attached to its motion the expert
affidavit of John Michael McInturff, a civil engineer, which established that
the collision was caused solely by the fault and extreme gross negligence of
Nelson, the adverse driver. It explained that Nelson failed to obey the
posted speed limit, lost control of his vehicle, traveled off the roadway,
struck two or three parked vehicles and struck the Nolands’ parked vehicle. 2 It stated that McInturff confirmed that it was not in violation of any required
design, construction, traffic engineering standard, policy or regulation
relating to Highway 4 or the surrounding area.
On October 4, 2022, the Nolands filed an opposition to the motion for
summary judgment. They argued that the DOTD was negligent by allowing
parking within the highway right-of-way in front of J&H and that genuine
issues of material fact exist as to each element of the duty-risk analysis.
A hearing on the motion for summary judgment was held on
November 10, 2022. The DOTD provided information about the collision
and explained that Nelson was driving his vehicle at least 70 miles per hour
in a 30 mile-per-hour zone when he lost control of his vehicle. The vehicle
left the westbound lane, crossed the center lines, entered the eastbound
lanes, crossed over the paved shoulder and into the right-of-way and then
collided with six vehicles in the J&H parking area, including the Nolands’
vehicle. The DOTD noted that the Nolands did not name Nelson, who died
in the collision, as a defendant. It argued that the Nolands had not presented
evidence to show any type of duty on its part. It detailed the findings of its
experts and emphasized that there is no authority stating that the DOTD can
intervene in the construction of a parking area; that there is no evidence of
an unreasonably dangerous defect in the section of roadway, shoulder or
right of way at issue; and that there was no violation of any regulation.
The Nolands argued that an application of the duty-risk analysis
showed that there was a genuine issue of material fact as to each factor.
They contended that the DOTD has a duty to ensure that roadways and
rights-of-way are reasonably safe and clear of obstructions and that it
breached this duty by allowing parking in the J&H parking area. They 3 argued the DOTD has the duty to issue permits to regulate entrances and
exits of private property and breached that duty by failing to ensure that
proper permits were taken out by those constructing within the clear zone.
They contended that Nelson was partially at fault but not solely at fault and
that his liability is irrelevant to the liability the DOTD bears.
The district court found that the sole cause of the collision was Nelson
driving through the intersection at 70 miles per hour and losing control of his
vehicle. Accordingly, the district court granted the motion for summary
judgment.
On November 10, 2022, the district court filed a judgment in favor of
the DOTD and against the Nolands. It sustained the DOTD’s motion for
summary judgment and dismissed the Nolands’ claims with prejudice and at
their costs.
The Nolands appeal.
DISCUSSION
In their sole assignment of error, the Nolands argue that the district
court erred when it granted the DOTD’s motion for summary judgment and
contend that there are genuine issues of material fact as to the DOTD’s
Free access — add to your briefcase to read the full text and ask questions with AI
Judgment rendered November 15, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,342-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
KATHY NOLAND, ET AL Plaintiffs-Appellants
versus
HERMAN LENARD, ET AL Defendants
Appealed from the Second Judicial District Court for the Parish of Jackson, Louisiana Trial Court No. 32,142
Honorable William R. “Rick” Warren, Judge
T. TAYLOR TOWNSEND, LLC Counsel for Appellants, By: T. Taylor Townsend Kathy Noland and James Noland YOCOM LAW FIRM, LLC By: Jimmy “Jimbo” Yocom, Jr.
JEFF LANDRY Counsel for Appellee, Attorney General State of Louisiana, through the DOTD JEANNIE C. PRUDHOMME GREGORY S. BARKLEY Assistant Attorneys General
Before PITMAN, HUNTER, and MARCOTTE, JJ. PITMAN, C. J.
Plaintiffs-Appellants Kathy Noland and James Noland (collectively,
the “Nolands”) appeal the district court’s granting of a motion for summary
judgment in favor of Defendant-Appellee the State of Louisiana, Department
of Transportation and Development (the “DOTD”). For the following
reasons, we affirm.
FACTS
On April 7, 2010, the Nolands filed a petition for damages and named
as defendants Herman Lenard and the Town of Chatham. They stated that
on or about April 16, 2009, Mrs. Noland was sitting in their parked vehicle
outside of J&H Cookin (“J&H”), a restaurant owned by Lenard, when their
vehicle was struck by another vehicle that veered off Louisiana Highway 4.
They argued that the cause of the collision was the location of the parking
area adjacent to the highway, which was an unreasonably dangerous and
unapparent roadway hazard, and that it could have been prevented if Lenard
provided a reasonably safe parking area. They further contended that the
Town of Chatham had a duty to maintain highways and roadways within its
territorial confines in a reasonably safe condition and manner and that it
breached that duty by allowing Lenard to maintain a parking area in front of
the business and adjacent to Highway 4 without a safe zone. The Nolands
alleged that as a result of the collision, Mrs. Noland suffered damages and
losses, including physical pain and suffering, mental pain and anguish, loss
of income, disfigurement, disability and medical bills. They alleged that Mr.
Noland suffered a loss of consortium, services and society with his wife.
On September 29, 2010, the Nolands amended their petition to add the
DOTD as a defendant. They explained that the Town of Chatham and/or the DOTD had a duty to maintain highways and roadways in a reasonably safe
condition and that they breached that duty by allowing Lenard to maintain a
parking area adjacent to Highway 4 without a safe zone.
On November 19, 2020, the DOTD filed an answer. It stated that the
conditions present at the location of the collision did not present an
unreasonable risk of harm to the public and that no unreasonably dangerous
conditions existed. It alleged the fault and/or negligence of Danny Nelson
by driving at an excessive rate of speed, driving in a careless and reckless
manner and failing to maintain control of his vehicle.
The Nolands’ claims against Lenard and the Town of Chatham were
dismissed with prejudice.
On July 22, 2022, the DOTD filed a motion for summary judgment. It
denied any and all allegations of fault or negligence asserted by the Nolands;
denied that it owed any duty whatsoever in this instance to any party or
person; and denied that there were any unreasonably dangerous defects in or
on the highway, roadway or shoulder over which it allegedly had
responsibility. It stated that the Nolands had not presented any evidence of
an unreasonably dangerous defect or condition on the section of roadway or
shoulder at issue. It contended that the Nolands could present no evidence
of any negligence or liability on its part, nor could they show that it violated
any duty allegedly owed to them. It attached to its motion the expert
affidavit of John Michael McInturff, a civil engineer, which established that
the collision was caused solely by the fault and extreme gross negligence of
Nelson, the adverse driver. It explained that Nelson failed to obey the
posted speed limit, lost control of his vehicle, traveled off the roadway,
struck two or three parked vehicles and struck the Nolands’ parked vehicle. 2 It stated that McInturff confirmed that it was not in violation of any required
design, construction, traffic engineering standard, policy or regulation
relating to Highway 4 or the surrounding area.
On October 4, 2022, the Nolands filed an opposition to the motion for
summary judgment. They argued that the DOTD was negligent by allowing
parking within the highway right-of-way in front of J&H and that genuine
issues of material fact exist as to each element of the duty-risk analysis.
A hearing on the motion for summary judgment was held on
November 10, 2022. The DOTD provided information about the collision
and explained that Nelson was driving his vehicle at least 70 miles per hour
in a 30 mile-per-hour zone when he lost control of his vehicle. The vehicle
left the westbound lane, crossed the center lines, entered the eastbound
lanes, crossed over the paved shoulder and into the right-of-way and then
collided with six vehicles in the J&H parking area, including the Nolands’
vehicle. The DOTD noted that the Nolands did not name Nelson, who died
in the collision, as a defendant. It argued that the Nolands had not presented
evidence to show any type of duty on its part. It detailed the findings of its
experts and emphasized that there is no authority stating that the DOTD can
intervene in the construction of a parking area; that there is no evidence of
an unreasonably dangerous defect in the section of roadway, shoulder or
right of way at issue; and that there was no violation of any regulation.
The Nolands argued that an application of the duty-risk analysis
showed that there was a genuine issue of material fact as to each factor.
They contended that the DOTD has a duty to ensure that roadways and
rights-of-way are reasonably safe and clear of obstructions and that it
breached this duty by allowing parking in the J&H parking area. They 3 argued the DOTD has the duty to issue permits to regulate entrances and
exits of private property and breached that duty by failing to ensure that
proper permits were taken out by those constructing within the clear zone.
They contended that Nelson was partially at fault but not solely at fault and
that his liability is irrelevant to the liability the DOTD bears.
The district court found that the sole cause of the collision was Nelson
driving through the intersection at 70 miles per hour and losing control of his
vehicle. Accordingly, the district court granted the motion for summary
judgment.
On November 10, 2022, the district court filed a judgment in favor of
the DOTD and against the Nolands. It sustained the DOTD’s motion for
summary judgment and dismissed the Nolands’ claims with prejudice and at
their costs.
The Nolands appeal.
DISCUSSION
In their sole assignment of error, the Nolands argue that the district
court erred when it granted the DOTD’s motion for summary judgment and
contend that there are genuine issues of material fact as to the DOTD’s
liability for their damages. They allege that the DOTD has a duty to
maintain the area within the right-of-way, to ensure any construction within
its rights-of-way is properly permitted and to regularly inspect the highway
for third-party construction to ensure safety and compliance with state
ordinances and internal protocol. They contend that the DOTD breached
these duties when it allowed unreasonably dangerous and unpermitted
parking spaces to be constructed within the Highway 4 right-of-way. They
argue that but for the DOTD’s breach of its duties, they never would have 4 parked a few feet from the highway and Mrs. Noland would not have been
injured in the collision.
The DOTD argues that the district court correctly granted the motion
for summary judgment in its favor because no genuine issues of material fact
exist regarding its liability. It contends that even though J&H’s parking area
is within the DOTD’s right-of-way, the Nolands failed to show that the area
created an unreasonably dangerous condition that was a cause-in-fact of the
collision or that the DOTD had notice of a defect and failed to timely
remedy the condition. It argues that the district court correctly determined
that Nelson’s negligence was the sole cause of the collision. It explains that
the location of the parking area did not cause Nelson to drive at an excessive
speed, lose control of his vehicle and collide with the Nolands’ vehicle.
A motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of the relief prayed
for by a litigant. Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So. 3d
607. Appellate courts review motions for summary judgment de novo, using
the same criteria that govern the district court’s determination of whether
summary judgment is appropriate. Id.
The procedure for motions for summary judgment is found in La.
C.C.P. art. 966, and the 2016 version of this article applies in this case. A
motion for summary judgment shall be granted 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. C.C.P.
art. 966(A)(3). La. C.C.P. art. 966(D)(1) states:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the 5 mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on 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.
Louisiana law allows a plaintiff to proceed against a public entity,
such as the State through the DOTD, under a theory of negligence based on
La. R.S. 9:2800. Skulich v. Fuller, 46,733 (La. App. 2 Cir. 12/14/11),
82 So. 3d 467. La. R.S. 9:2800(C) states in part:
[N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless 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.
A plaintiff must show that: (1) the DOTD had custody of the thing that
caused plaintiffs’ damages, (2) the thing was defective because it had a
condition that created an unreasonable risk of harm, (3) the DOTD had
actual or constructive notice of the defect and failed to take corrective
measures within a reasonable time, and (4) that the defect was a cause-in-
fact of plaintiffs’ injuries. Brown v. Louisiana Indem. Co., 97-1344 (La.
3/4/98), 707 So. 2d 1240, citing Lee v. State Through Dep’t of Transp. &
Dev., 97-0350 (La. 10/21/97), 701 So. 2d 676. To recover, the plaintiff
bears the burden of proving all these inquiries in the affirmative, and failure
on any one is fatal to the case. Netecke v. State ex rel. DOTD, 98-1182 (La.
10/19/99), 747 So. 2d 489.
The functions of the DOTD are to study, administer, construct,
improve, maintain, repair and regulate the use of public transportation 6 systems and to perform such other functions with regard to public highways,
roads and other transportation related facilities as may be conferred on it by
applicable law. La. R.S. 48:21(A). The DOTD has a duty to maintain the
public roadways in a condition that is reasonably safe and does not present
an unreasonable risk of harm to the motoring public exercising ordinary care
and reasonable prudence. Netecke v. State ex rel. DOTD, supra. This duty,
however, does not render the DOTD the guarantor for the safety of all the
motoring public. Id. The DOTD is not the insurer for all injuries or
damages resulting from any risk posed by obstructions on or defects in the
roadway or its appurtenances. Id. The existence of an unreasonable risk of
harm may not be inferred solely from the fact that an accident occurred. Id.
The DOTD cannot be held responsible for all injuries on the state’s
highways that result from careless driving. Id. Whether the DOTD
breached its duty to the public, by knowingly maintaining a defective or
unreasonably dangerous roadway, depends on the facts and circumstances
determined on a case-by-case basis. Id.
In this case, the Nolands failed to present any evidence that a
defective condition in the roadway created an unreasonable risk of harm to
the motoring public and ultimately caused or contributed to their damages.
The record, through McInturff’s expert affidavit, shows that Nelson’s
careless and negligent driving solely caused the collision and resulting
injuries to Mrs. Noland and damages to the Nolands. Notably, the affidavit
of V.O. Tekell, Jr., the Nolands’ expert engineer, does not demonstrate that
the location of the J&H parking area was unreasonably dangerous. We need
not consider the other elements set forth in La. R.S. 9:2800 because the
Nolands’ failure to prove any one element is fatal to their case. The district 7 court did not err in determining that there are no genuine issues of material
fact as to the DOTD’s liability in this case and granting summary judgment
in favor of the DOTD.
Accordingly, this assignment of error lacks merit.
CONCLUSION
For the foregoing reasons, we affirm the district court’s granting of
summary judgment in favor of the State of Louisiana, Department of
Transportation and Development. Costs of this appeal are assessed to
Plaintiffs-Appellants Kathy Noland and James Noland.
AFFIRMED.