Nicole Hillebrandt on Behalf of Her Minor Child Jordyn Colbert v. State Farm Mutual Automobile Insurance Company and Kristin Riggs

• Court: Louisiana Court of Appeal
• Decided: November 29, 2023
• Docket: CA-0023-0286
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

23-286

NICOLE HILLEBRANDT ON BEHALF OF HER MINOR CHILD, JORDYN COLBERT

VERSUS

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND KRISTIN RIGGS

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20181326, DIV. L HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

SHARON DARVILLE WILSON JUDGE

Court composed of Sharon Darville Wilson, Gary J. Ortego, and Wilbur L. Stiles, Judges.

REVERSED AND REMANDED. DaShawn P. Hayes THE HAYES LAW FIRM, PLC 1100 Poydras Street, Suite 1530 New Orleans, Louisiana 70163 (504) 799-0374 COUNSEL FOR PLAINTIFF/APPELLANT: Nicole Hillebrandt on Behalf of Her Minor Child, Jordyn Colbert

David O. Way Kenny L. Oliver OLIVER & WAY, LLC 100 Rue Bastille Lafayette, Louisiana 70598 (337) 988-3500 COUNSEL FOR DEFENDANTS/APPELLEES: State Farm Mutual Automobile Insurance Company and Kirsten Riggs WILSON, Judge.

Plaintiff/Appellant, Nicole Hillebrandt (Hillebrandt) on behalf of her minor

child, Jordyn Colbert (Colbert), appeals the grant of summary judgment in favor of

Defendants/Appellees, State Farm Mutual Automobile Insurance Company (State

Farm) and Kirsten Riggs (Riggs).1 Finding that there are genuine issues of material

fact, we reverse and remand.

I.

ISSUES

We must determine whether the affidavit of Hillebrandt’s son, who was an

eyewitness to the accident, created a genuine issue of material fact regarding the

comparative fault between Riggs and Colbert or whether Riggs’ affidavit absolved

herself of any liability.

II.

FACTS AND PROCEDURAL HISTORY

On February 27, 2017, at approximately 7:33 p.m., Colbert was attempting to

cross Moss Street in Lafayette, Louisiana. Colbert was nine years old at the time of

the accident. Her older brother, Jarayle Thomas (Thomas), and her cousin (who was

also nine years old) were with her. They were waiting for Colbert’s mother and

other cousins so that they could walk together from her house to a Mardi Gars

parade. The kids were playing with a ball. Colbert testified that the ball had been

kicked across the street, and she was going to retrieve it when she was hit by a car.

The car was a 2014 Toyota Camry driven by Riggs, a new driver, who was on her

way to the parade with four passengers2 in the vehicle.

1 We note that Riggs’ name is spelled “Kristin” in the caption of this suit. We use the spelling given in Riggs’ affidavit. 2 The passengers were Reginal Williams, Isaiah Riggs, Ittalee Randall, and Tyler Randall. On February 27, 2018, Hillebrandt filed suit on behalf of Colbert. State Farm

and Riggs filed exceptions of insufficiency of service of process and prescription.

The exceptions were heard on October 29, 2018, and denied in open court.3

On April 8, 2022, State Farm and Riggs filed an amended answer to assert

that “the accident was solely or partially caused by the negligence of the minor child”

and Hillebrandt. State Farm and Riggs then filed a motion for summary judgment,

which alleged that Hillebrandt could not “present any positive evidence” that Riggs

“was negligent in in any way[.]” The motion alleged that Colbert was left to play

outside unsupervised and admitted that she ran into the street to retrieve her ball

without looking to see whether a car was coming.

Hillebrandt opposed the motion for summary judgment with an affidavit from

her son, Thomas,4 who saw the accident. Thomas stated that it appeared to him that

Riggs was speeding and did not take any action to avoid hitting Colbert.

Following a hearing, the trial court found that Thomas’ affidavit did not create

a genuine issue of material fact and granted the motion for summary judgment in

open court. The trial court instructed defense counsel to prepare a judgment. On

August 12, 2022, the trial court signed a judgment granting the motion for summary

judgment and dismissing all of the claims with prejudice. This timely appeal

followed.

3 By written judgment signed November 16, 2018, the exception of insufficiency of service of process was denied on the grounds that it had been waived by the filing of an answer. 4 State Farm and Riggs initially objected to Thomas’ affidavit on the grounds that it did not meet the requirements of La.R.S. 35:621, et seq., the remote online notarization option. The objection was withdrawn at the hearing on the motion for summary judgment. 2 III.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo under the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate.” Pollock v. MDA Consultants, LLC, 22-540, p. 9 (La.App. 3 Cir.

2/1/23), 362 So.3d 929, 934, writ denied, 23-551 (La. 6/7/23), 361 So.3d 976.

IV.

LAW AND DISCUSSION

The party urging the summary judgment bears the burden of proof. La.Code

Civ.P. art. 966(D)(1). However, “if the mover will not bear the burden of proof at

trial[,]” the “burden on the motion does not require him to negate all essential

elements of the adverse party’s claim, . . . but rather to point out . . . the absence of

factual support for one or more elements essential to the adverse party’s claim[.]”

Id. Then, the burden shifts to “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.” Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue[,] and summary judgment is appropriate.

Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66 (citations

omitted).

Under a duty-risk analysis, a plaintiff must proof five separate elements: (1)

the defendant had a duty; (2) the defendant breached that duty; (3) the defendant’s

substandard conduct was a cause-in-fact of the alleged injuries; (4) the defendant’s

substandard conduct was a legal cause of the alleged injuries; and (5) actual

3 damages. Saucedo v. Safeco Ins. Co. of Or., 20-599 (La.App. 1 Cir. 3/11/21)

(unpublished opinion).

“The fact that an accident occurs does not create a presumption of negligence

in favor of either the pedestrian or motorist. Accidents occurring between a

pedestrian and a motorist are governed by the principles of comparative fault.”

Guidry v. City of Rayne Police Dept., 09-664, p. 3 (La.App. 3 Cir. 12/9/09), 26 So.3d

900, 903. “Although a motorist commands a greater instrumentality of harm, a

pedestrian still bears the burden of proving that the motorist was negligent before he

can recover damages.” Saucedo, 20-599, p. 6.

State Farm and Riggs sought summary judgment, arguing that Hillebrandt

would be unable to establish that Riggs was negligent. In support of the motion,

State Farm and Riggs submitted excerpts from the transcript of the deposition of

Colbert; the affidavit of Riggs; and excerpts from the transcript of the deposition of

Cody Richard, the investigating officer.

Colbert testified that she ran into the street without stopping and without

looking. When asked if she ever saw the vehicle before it hit, Colbert stated:

“Whenever it came, it stopped, because my cousin, he told me to watch out. Then

that’s whenever the car came, and it hit me. Then I got up, and I walked into the

house, and I sat on the sofa.” She did not know how fast the car was going or whether

it was speeding. Colbert stated that she fell to the ground but did not remember what

part of her body hit the ground or whether she hit her head. She stated that the car

hit the right side of her body. Colbert further testified that the person who was

driving the car, got out of the car, and came to the door to ask if she was okay. She

told them that she was okay.

Riggs testified in her affidavit that “she was traveling less than the posted

speed limit of 45 miles per hour because she was a new driver[,] and she was

4 traveling through a residential neighborhood at night.” She further stated that she

had “both hands on the steering wheel, when suddenly and without any warning she

saw a child, running across the center line of Moss Street, apparently not slowing

down for her vehicle.” According to Riggs, “she immediately applied her brakes”

and brought her vehicle to a complete stop. Then, Riggs averred that “[s]he

witnessed the minor child . . . jump into the air, land on the hood of her car, roll off

the hood and back on to the ground before continuing to jog into an adjacent house.”

Officer Richard testified that Colbert used the word “jump” when describing

what happened: “She stated that she did not see vehicle 1 traveling south, and it

struck her, causing her to jump onto the . . . hood of the vehicle[.]” Officer Richard

further indicated that Colbert’s sibling said essentially, but not exactly, the same

thing as Colbert.

In opposition to the motion for summary judgment, Hillebrandt argued that

there are several genuine issues of material fact and that issues of comparative fault

are inappropriate for summary judgment. Hillebrandt points out that even though

Colbert testified that she ran into the street, this does not mean that Riggs is free

from fault and does not bar recovery. Hillebrandt submitted the affidavit of her son,

Thomas,5 who stated that he was present at the scene of the accident. He averred

that Colbert was already in the middle of the street when she was struck by the car

and that Colbert “flew into the air, hit the hood of the car, and landed on the ground.”

According to Thomas, the car “appeared to be speeding[,]” did not try to avoid

hitting Colbert, and did not honk its horn prior to hitting Colbert. Thomas further

indicated that he helped bring Colbert home and that she passed out once on the way

home and again after arriving home.

5 Thomas is over the age of majority. 5 In granting the summary judgment, the trial court stated: “the only thing in

[Thomas’] affidavit that could possibly create a material issue of fact is the statement

from the witness that the defendant, quote, appeared to be speeding.” The trial court

then stated: “That, in itself, is insufficient to create a material issue of fact. Because,

as we know in this case, the speed limit was 45 miles an hour.” The trial court then

pointed out that “[t]he defendant’s affidavit says she was traveling less than the

posted speed limit. The defendant’s affidavit established that she immediately

applied her brakes upon seeing the child.”

It is well-settled that credibility assessments are not appropriate in summary

judgment determinations. “The credibility of a witness is a question of fact.”

Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 8 (La. 2/20/04),

866 So.2d 228, 234. “Whether the statements are accurate is not to be decided on a

motion for summary judgment. The trial court must assume that all of the affiants

are credible.” Pacaccio v. Hoover, 21-1587, p. 6 (La.App. 1 Cir. 8/2/22), 348 So.3d

81, 86, writ denied, 22-1525 (La. 12/6/22), 351 So.3d 367.

“A party’s self-serving testimony must be accepted as credible except ‘[w]hen

[the] party opposing a motion for summary judgment presents [his] own self-serving

testimony, but that testimony contains significant discrepancies[.]’” Joseph v.

Lowe’s Home Centers, Inc., 22-694, p. 8 (La. App. 3 Cir. 5/24/23) (unreported

opinion), writ denied, 23-881 (La. 10/10/23), ___ So.3d ___, quoting, Smith v. State

through Dep’t Transp. & Dev., 21-192, p. 14 (La. App. 3 Cir. 3/2/22), 350 So.3d

879, 888. Such is not the case with Thomas’ affidavit testimony. “In ruling on a

motion for summary judgment, the trial court’s role is not to evaluate the weight of

the evidence or to determine the truth of the matter, but instead to determine whether

there is a genuine issue of triable fact.” Sketchler v. Hernandez, 20-292, p. 11

(La.App. 1 Cir. 5/19/21), 326 So.3d 912, 920.

6 The trial court’s conclusion that State Farm and Riggs met their burden of

proof required the weighing of evidence and the making of credibility

determinations. “[I]t is not proper to make credibility determinations on a motion

for summary judgment as the trial court did in this case.” Marks v. Schultz, 20-197,

p. 16 (La.App. 1 Cir. 12/10/20), 316 So.3d 534, 545. We further find that the

conflicting testimonies of Thomas and Riggs create genuine issues of material fact.

Therefore, based on our de novo review of the record in this case, we find that the

trial court erred in granting summary judgment in favor of State Farm and Riggs.

V.

CONCLUSION

The judgment granting summary judgment in favor of State Farm Mutual

Automobile Insurance Company and Kirsten Riggs is reversed. This matter is

remanded to the trial court for further proceedings consistent with this opinion. All

costs of this appeal are assessed to Defendants/Appellees, State Farm Mutual

Automobile Insurance Company and Kirsten Riggs.

REVERSED AND REMANDED.