Lorio v. State

856 So. 2d 1263, 3 La.App. 3 Cir. 0422, 2003 La. App. LEXIS 2644, 2003 WL 22245036
CourtLouisiana Court of Appeal
DecidedOctober 1, 2003
DocketNo. 03-422
StatusPublished

This text of 856 So. 2d 1263 (Lorio v. State) 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
Lorio v. State, 856 So. 2d 1263, 3 La.App. 3 Cir. 0422, 2003 La. App. LEXIS 2644, 2003 WL 22245036 (La. Ct. App. 2003).

Opinion

hGREMILLION, Judge.

The plaintiff, Peter L. Lorio, III, appeals the judgment of the trial court granting summary judgment in favor of the defendant, State of Louisiana, through the Department of Transportation and Development (DOTD). For the following reasons, we reverse and remand the matter for further proceedings.

FACTS

On November 20, 1997, at approximately 10:30 p.m., Lorio was traveling north on Old Baton Rouge Highway, also known as LA 1208-1, in Rapides Parish, Louisiana. As he approached the intersection of Old Baton Rouge Highway with U.S. Highway 71, he came upon a severe left-hand curve, but was unable to complete the turn due to the absence of signage or markers indicating the presence of the curve or the intersection with Hwy 71. Lorio suffered injuries as a result of this accident and filed suit against DOTD and the Rapides Parish Police Jury for their failure to safely maintain and regulate this road. Both DOTD and the Police Jury denied responsibility for the accident. DOTD further filed a motion for summary judgment arguing that Old Baton Rouge Highway was not part of the State highway system, thus, it was not responsible for maintaining Old Baton Rouge Highway. In support of its motion, DOTD introduced an affidavit by Robert Gunter, a District Maintenance Engineer for DOTD in Rapides Parish, who stated, “based upon personal knowledge, the Old Baton Rouge highway is not in the State Highway system and the State does not maintain same.”

Three hearings were held on the motion for summary judgment. At the close of the first hearing, on January 8, 2001, the trial court continued the hearing for ^discovery until January 22, 2001. At the hearing on that date, the trial court granted the motion for summary judgment in favor of DOTD, finding that there was an intent on the part of DOTD to transfer the road at issue to the Police Jury, and that the Police Jury had been maintaining the road since 1993. However, the trial court allowed Lorio additional time for discovery and scheduled the matter for rehearing on February 26, 2001.

The matter was not heard again until September 23, 2002. At that time, Lorio introduced an affidavit by Cecil Raggio, the Maintenance Director for Rapides Parish, which stated that the entire intersection and curve involved in this accident were within the frontage road right of way of the State, and that DOTD maintains and is responsible for signage at the intersection since it is within its right of way. At the close of argument, the trial court granted DOTD’s motion and rendered judgment in its favor. This appeal by Lorio followed.

ISSUE

On appeal, Lorio argues that the trial court erred in finding that no genuine issue of material fact existed with regard to whether DOTD owned or maintained that portion of Old Baton Rouge Highway involved in this accident.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether [1265]*1265summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). Judgment will be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. La. Code Civ.P. art. 966(B). If the opposing party cannot produce any evidence to suggest that it will be able to meet its evidentiary burden at trial, no genuine issues of material fact exist. La. Code Civ.P. art. 966(C)(2). Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

After performing a de novo review of the record, we find that a genuine issue of material fact does exist with regard to whether DOTD owns or maintains that portion of Old Baton Rouge Highway involved in this accident. DOTD submitted Gunter’s affidavit, which stated, “Affiant further asserts that based upon personal knowledge, the Old Baton Rouge highway is not in the State Highway system and the State does not maintain same.” This is the extent of Gunter’s affidavit. DOTD also introduced into evidence a Transfer and Acceptance dated May 11, 1993, in which the Police Jury accepted the operation and maintenance of “All that portion of LA 1208-1 beginning at the barricade at Route U.S. 71 at Chambers, thence northerly 3.44 miles to the junction with the Route I — 49 frontage road at the Routes I-49 and U.S. 71 Interchange at Willow Glen.” In exchange, DOTD took over the operation and | ¿maintenance of Robertson Bridge Road. DOTD also introduced into evidence the Police Jury’s maintenance records pertaining to Old Baton Rouge Highway, from February 1995 through December 29,1997.

In opposition to DOTD’s motion, Lorio introduced answers to interrogatories and Raggio’s affidavit. In his affidavit, he states:

I am not qualified to state whether or not the Old Baton Rouge Highway (La. 1208-1) was legally transferred from the State of Louisiana to the Rapides Parish Police Jury in May, 1993. This transfer would extend to the point where the Old Baton Rouge Highway intersects the state right of way for the U.S. 71 and 1-49 frontage road. I have examined the site and the right of way markers, including the marker depicted in the photograph attached hereto. The entire intersection and the curve in the Old Baton Rouge Highway leading to this intersection is entirely within the frontage road right of way of the State of Louisiana. The Louisiana Department of Transportation maintains and is responsible for the signage at this intersection because it is within the right of way owned by the Louisiana Department of Transportation.
The attached photographs of the curve and the intersection depict the change in road surface where the right-of-way line ends, the new road overlay begins on the portion of roadway within the state right of way. This curve is more severe and closer to the intersection than it should be for an arterial roadway or for a road with speed limits over twenty-five miles per hour and [1266]*1266would not satisfy parish safety standards. The installation of this curve and intersection predated May, 1998, and the design and installation was carried out by the State of Louisiana, not the Rap-ides Parish Police Jury.

Lorio also introduced into evidence several DOTD forms dealing with the transfer of Old Baton Rouge Highway to the Police Jury. Form 1104, dated January 27, 1998, entitled “CHANGES IN STATE MAINTENANCE SYSTEM,” ordered the following change in the state maintenance system:

DISCONTINUE: From the barricade at Route U.S. 71 at Chambers, thence northerly 3.44 mile to the junction with the Route 1-49 Frontage Road at the Routes 1-49 and U.S. 71 Interchange at Willow Glen. (Transfer 3.44 miles to the Rapides Parish Police Jury).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Soileau v. D & J Tire, Inc.
702 So. 2d 818 (Louisiana Court of Appeal, 1997)
Magnon v. Collins
739 So. 2d 191 (Supreme Court of Louisiana, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
856 So. 2d 1263, 3 La.App. 3 Cir. 0422, 2003 La. App. LEXIS 2644, 2003 WL 22245036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lorio-v-state-lactapp-2003.