Michael and Christine Dauzat v. State of La., Dotd

• Court: Louisiana Court of Appeal
• Decided: February 3, 2010
• Docket: CA-0009-0793
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-793

MICHAEL AND CHRISTINE DAUZAT

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

************

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2005-7740 HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of Oswald A. Decuir, Jimmie C. Peters, and Elizabeth A. Pickett, Judges.

REVERSED AND REMANDED.

Jerold Edward Knoll The Knoll Law Firm Post Office Box 426 Marksville, Louisiana 71351 Counsel for Plaintiffs/Appellees: Michael and Christine Dauzat

John Taylor Bennett Bennett Law Office Post Office Box 275 Marksville, Louisiana 71351 Counsel for Plaintiffs/Appellees: Michael and Christine Dauzat James D. “Buddy” Caldwell Attorney General James E. Calhoun Assistant Attorney General Post Office Box 1710 Alexandria, Louisiana 71309 Counsel for Defendant/Appellant: State of Louisiana through the Department of Transportation and Development PICKETT, Judge.

The State of Louisiana, through the Department of Transportation and

Development (the DOTD), appeals the trial court’s grant of partial summary judgment

on the issue of liability in favor of Plaintiffs, Michael and Christine Dauzat. For the

following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On March 11, 2005, after boiling four sacks of crawfish, Christine was severely

burned when she fell as she and her adult son were attempting to pour the hot water

from the boil into a ditch adjacent to a driveway in front of her property. She was

taken to a local hospital and then airlifted to a burn center in Houston, Texas, where

she remained hospitalized for twenty-nine days.

Christine and her husband, Michael, filed suit against the DOTD on April 21,

2005, to recover damages for the injuries Christine suffered in the accident and for

the loss of consortium suffered by Michael as a result of his wife’s injuries. Plaintiffs

alleged that the accident occurred on highway property included in the DOTD’s right

of way. They further alleged that the DOTD was responsible for their damages

because of the following nonexclusive acts of negligence: failing to properly maintain

its right of way, failing to properly maintain its drainage, failing to provide culverts,

and providing inadequate and substandard material. They asserted that the DOTD

had committed the aforementioned negligent acts “all the while knowing that its

actions or inactions created a dangerous situation which . . . resulted in [their]

damages.”

The DOTD responded to Plaintiffs’ petition by filing an exception of

vagueness, after which Plaintiffs amended to allege sixteen additional acts of

1 negligence on behalf of the DOTD, including failing to properly inspect and maintain

the driveway and ditch. Thereafter, the DOTD answered the petitions, admitting that

Plaintiffs’ driveway was partially located within the DOTD right of way. The DOTD

averred that the accident was solely caused through the negligence of Plaintiffs and/or

some other third party, in the following non-exclusive acts or omissions: failing to

exercise reasonable care in carrying extremely hot and potentially hazardous

substances; failing to see what should have been seen; failing to take effective

evasive actions; failing to comply with the law by discharging a noxious matter into

the ditch on the state highway right of way without the prior written consent of the

chief engineer, or his representative, and the secretary of the Department of Health

and Hospitals; failing to maintain the driveway in a safe condition; knowingly

walking on an unsafe driveway; and failing to supply an appropriate culvert meeting

DOTD requirements and allowing the driveway permit to expire. The DOTD

requested a jury trial in its answer, and the record contains two notices of trial by jury.

The DOTD filed a motion for summary judgment on June 18, 2008, alleging

that Plaintiffs had failed to sustain their burden of proof. More specifically, it alleged

that it owed no duty to Christine regarding her driveway because she was not a

motorist using the adjacent roadway or a pedestrian using the roadway in a reasonably

prudent manner. The DOTD further insisted that it was not required to furnish any

culverts for Plaintiffs’ driveway. Attached to its motion was deposition testimony of

Christine; Huey Lipsey, Jr., a DOTD engineer; and Gerard Lemoine, the DOTD

Highway Maintenance Supervisor for Avoyelles Parish; as well as a DOTD “Project

Diary” relating to a 1980 project on Highway 1194 in front of Plaintiffs’ property.

Plaintiffs opposed DOTD’s motion, alleging that material issues of fact remained

2 which precluded summary judgment. They attached to their opposition the deposition

of James Clary, Sr., an engineer specializing in highway design, safety, maintenance,

and signage, whom they had retained as an expert witness. Following a hearing, the

trial court denied the DOTD’s motion on the basis that genuine issues of fact

remained.

In March of 2009, Plaintiffs filed their own motion for summary judgment on

the issue of liability. They presented no additional evidence in support of their

motion. The DOTD opposed Plaintiffs’ motion, submitting the deposition of Kelley

Adamson whom it had retained as an expert in the field of civil and structural

engineering. It argued that Plaintiffs’ motion should be denied because many issues

of fact remained, including whether the DOTD owed Plaintiffs a duty to remove the

subject driveway, whether Christine acted reasonably in carrying hot water at night

over an area of her yard which she knew was dangerous, and the exact circumstances

surrounding the accident. Following a hearing, the trial court granted summary

judgment in favor of Plaintiffs, finding that they had met their burden of proof on the

issue of liability.

The DOTD now appeals, asserting in its sole assignment of error that “[t]he

trial court erroneously granted a partial summary judgment where defendant has

alleged comparative fault and where deposition[s] were presented showing that

plaintiff knew of the danger but carried a large boiler of hot water into an area prone

to cave-ins.”

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria

applied by the trial courts to determine whether summary judgment is appropriate.

3 Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. A

motion for summary judgment will be granted if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue of material fact and that the mover is entitled to

judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is

favored and shall be construed “to secure the just, speedy, and inexpensive

determination of every action . . . .” La.Code Civ.P. art. 966(A)(2).

“DOTD has a duty to maintain the public highways in a condition that is

reasonably safe for persons exercising ordinary care and reasonable prudence.

La. R.S. 48:21(A).” Brown v. La. Indem. Co., 97-1344, p. 3 (La. 3/4/98), 707 So.2d

1240, 1242. Moreover, in Oster v. Dept. of Transp. and Dev., State of La., 582 So.2d

1285, 1291 (La.1991), the supreme court stated:

As to the area off the shoulder of the road, but within the right of way, DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner.

In 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, writ denied, 00-199 (La. 4/7/00), 759 So.2d 766, we

stated:

To hold [the] DOTD liable, the plaintiff has the burden of proving that:

1. the defendant had custody of the property which caused plaintiff’s damages;

2. the property was defective because of a condition that created an unreasonable risk of harm;

3. the defendant had actual or constructive knowledge of the defect and the risk and failed to take corrective measures within a reasonable time; and,

4 4. the defect was a cause-in-fact and legal cause of the plaintiff’s injuries.

Odom v. State, Dep’t of Transp. and Dev., 95-1605 (La.App. 3 Cir. 9/25/96); 688 So.2d 1082.

This court reversed the trial court’s grant of a partial summary judgment on the

issue of liability in favor of the plaintiff in Benniefiel v. Zurich American Insurance

Co., 08-1416, p. 6 (La.App. 3 Cir. 5/6/09), 10 So.3d 381, 386, finding that the

evidence in the record “clearly create[d] a genuine issue of material fact relative to

the issue of comparative fault which must go to the trier of fact and not be disposed

of via summary judgment.” We further noted that “‘it is not a function of the trial

court on a motion for summary judgment to determine or even inquire into the merits

of issues raised or to weigh conflicting evidence on the existence of material facts.’”

Id. at 385 (quoting Bell v. Gold Rush Casino, 04-1123, p. 7 (La.App. 3 Cir. 2/2/05),

893 So.2d 969, 973-74).

The parties appear to agree on the following facts. The driveway where the

accident occurred was in existence when the Dauzats purchased their property in

1979. In August of 2003, Christine contacted Mr. Lemoine about a tree on her

father’s property that was partially blocking the view of anyone exiting his driveway.

While Mr. Lemoine was out inspecting the tree, Christine, who lived across the street

from her father, asked him to have a look at a culvert and driveway in front of her

house on Highway 1194. The driveway ramp was badly eroded and culvert appeared

to be in very bad shape. Mr. Lemoine explained to Christine that if she were to get

a permit from the DOTD and supply a culvert and materials, his crew would dig out

the old culvert and install the new one if their workload permitted. He also offered

her the option of digging out the old culvert rather than replacing it; Christine turned

5 down the second option because she needed the old driveway to move her boat and

tractor.

Thereafter, Christine contacted Mr. Lipsey about getting a driveway permit and

he came out to her property with the permit paperwork. A permit was issued on

August 21, 2003. It called for a thirty inch by thirty foot long culvert. At first, the

permit specified that the Dauzats would supply a corrugated metal pipe culvert.

Later, it was amended to reflect that the Dauzats would supply a reinforced concrete

pipe culvert. The change was due to the fact that the Dauzats’ son would be able to

make the concrete culvert at his job and they wanted to give him the business.

Christine contacted Mr. Lipsey again on October 15, 2003, to inform him that her son

had delivered the concrete culvert and that she was ready to have it installed. When

Mr. Lipsey came out to inspect the culvert, he discovered that it was thirty-six inches

wide, instead of thirty inches wide as called for in the permit. As a result, he told

Christine that the culvert could not be installed because it was too big. The Dauzats

chose to let the permit expire rather than getting another culvert or having the old

driveway and culvert removed. They stopped using the old driveway for tractors and

other vehicles because it needed to be repaired.

On the other hand, the DOTD clearly alleged in its answer, and later in

opposition to Plaintiffs’ motion for summary judgment, that Christine was guilty of

negligence in her decision to transport extremely hot water across her yard at night

into an area known to be in an unsafe condition. In addition, numerous issues of

material fact remain. For example, Christine stated in her deposition that Mr. Lipsey

did not inspect the driveway and ditch when he came out to her property to issue a

permit to replace the old culvert. On the other hand, Mr. Lipsey stated that he had

6 inspected the area on his visit to the Dauzat property. Christine and Mr. Lipsey also

disagree on what size culvert he told her to get. Christine said that he told her it could

be thirty inches or more but not less than that, while he said that he told her that it

could not exceed thirty inches. Furthermore, there is an issue as to whether the

culvert supplied by the Dauzats was defective, as Mr. Lipsey and Mr. Lemoine

testified that it did not appear to be reinforced and the ends of each section were

chipped and cracked such that they would not make a complete seal if connected to

other sections of culvert. Additionally, there is disagreement amongst the various

experts as to whether or not the DOTD guidelines called for the State to bring

Highway 1194 up to current standards in conjunction with any or all of the various

projects involving that roadway over the years. Moreover, there is conflicting

testimony as to whether at any point prior to the accident the ditch in question was

blocked such that the DOTD would have been required to rectify the situation to

promote the safety of motorists and/or pedestrians traveling on Highway 1194 in front

of Plaintiffs’ property. Clearly the number of factual issues increased between the

date of the trial court’s denial of the DOTD’s motion for summary judgment and the

subsequent filing of Plaintiffs’ motion for summary judgment.

After having reviewed all of the summary judgment evidence before us, we are

convinced that genuine issues of material fact remain which cannot be properly

disposed of via summary judgment. The trial court erred in granting Plaintiffs’

motion for partial summary judgment on the issue of liability. This case must be

remanded to the trial court for further proceedings to allow a jury to determine the

multiple issues of fact that remain with regard to liability and damages.

7 DECREE

For the foregoing reasons, the judgment of the trial court is reversed and this

matter is remanded for further proceedings. Costs of this appeal are assessed against

Plaintiffs, Michael and Christine Dauzat.