Passon v. Fields

196 So. 3d 645, 2016 La. App. LEXIS 982, 2016 WL 2908141
CourtLouisiana Court of Appeal
DecidedMay 18, 2016
DocketNo. 50,635-CA
StatusPublished
Cited by6 cases

This text of 196 So. 3d 645 (Passon v. Fields) 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
Passon v. Fields, 196 So. 3d 645, 2016 La. App. LEXIS 982, 2016 WL 2908141 (La. Ct. App. 2016).

Opinion

BROWN, Chief Judge.

11 This, case arises out of a two-vehicle accident that occurred on March 14, 2009, at the intersection of Eagle Drive and the 1-20 service road in Ruston, Louisiana. At the time of the accident, plaintiff, Ouida Passon, was driving westbound on the service road and defendant, Lounita Fields, was driving northbound on Eagle Drive. When she got to the intersection, Mrs. Fields disregarded a posted stop sign and pulled out directly in front of oncoming traffic. Mrs. Passon was unable to stop in time, and her vehicle struck the Fields car. On March 12, 2010, plaintiffs, Ouida and David Passon, filed the instant suit against Mrs. Fields and her insurer, State Farm Mutual Automobile Insurance Company, the City of Ruston (“the City”), the Lincoln Parish Police Jury (“the Parish”), and the Louisiana Department' of Transportation and Development (“the DOTD”). Plaintiffs settled with Mrs. Fields and State Farm, who were dismissed from the lawsuit.

On June 3, 2014, the DOTD and the City filed a joint motion for summary judgment, asserting that plaintiffs had no evidence to support their claims against defendants. Plaintiffs filed an opposition brief, and the Parish filed a separate motion for summary judgment on November 17, 2014, urging that because it had no custody or control over the intersection where the accident occurred, had not designed, constructed, controlled, maintained or operated the roads making up the intersection, and had not designed, installed or maintained the traffic control devices at the intersection, summary judgment in its favor was warranted. On November 18, 2014, the DOTD filed a motion to strike plaintiffs’ opposition memo as |2untimely, and two exhibits offered by plaintiffs in support of their- memo: an affidavit of expert, Vernon Tekell, and several newspaper articles.

A hearing was' held on November 20, 2014, and the matter was taken under advisement by the trial court. On January 30, 2015, the trial court issued written reasons and a judgment granting in part the motion to strike and granting summary judgment in favor of all defendants. It is from this judgment that plaintiffs have appealed.

Discussion

Evidentiary Rulings

In response to plaintiffs’ memorandum filed in opposition to their motion for summary judgment, the DOTD and City filed a motion to strike the affidavit of Dean Tekell, plaintiffs’ expert, newspaper articles (on accidents that have occurred at the intersection at issue in this case since the accident) attached to the opposition memorandum, and all references in the opposition memorandum and Tekell’s affidavit that refer to information in the newspaper articles and/or subsequent remedial measures taken by any of the defendants. In his written ruling, the trial judge noted that plaintiffs’ counsel offered evidence of subsequent remedial measures not for the purpose of proving ownership of the intersection in question, - but to show that the defendants had notice of the allegedly dangerous condition at the intersection, something prohibited by law. •

While a newspaper article is admissible simply to prove that the article exists, [649]*649when a party submits a newspaper article to prove the truth of the matter asserted, the evidence is hearsay, and the court must find the |sevidence inadmissible. State v. Harper, 93-2682 (La.11/30/94), 646 So.2d 338; Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5th Cir.03/28/01), 784 So.2d 46, writs denied, 01-1533, 01-1534 (La.12/14/01), 804 So.2d 642, writs denied, 01-1543, 01-1544, 01-1629 (La.12/14/01), 804 So.2d 643, writs denied, 01-1853, 01-1931 (12/14/01), 804 So.2d 644.

La. C.E. article 407 provides:

In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur,- evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.

The trial court is granted broad discretion in its evidentiary rulings which will not be disturbed on appeal absent a clear abuse of discretion. Allums v. Parish of Lincoln, 44,304 (La.App.2d Cir.06/10/09), 15 So.3d 1117, writ denied, 09-1938 (La.11/20/09), 25 So.3d 803; Crisler v. Paige One, Inc., 42,563 (La.App.2d Cir. 01/09/08), 974 So.2d 125. The prohibition against evidence of subsequent remedial measures is designed to bring within the scope of the rule any change, repair or precaution subsequent to an accident. Northern Assurance Co. v. Louisiana Power & Light Co., 580 So.2d 351 (La.1991); Allums, supra. The prohibition covers measures taken after an event, such as post-accident repairs, installation of safety devices, changes in design, the removal of dangerous conditions, changes in procedure, the dismissal of an employee charged with causing an accident, changes in regulations, and changes in labels or instructions. Id.

I/The trial court did allow the articles to be submitted, although solely for the purpose of showing that they had been published. Likewise, there were only two portions of Tekell’s affidavit that were stricken: one that relied upon remedial measures taken by the DOTD post-accident, and one that relied upon information contained in the above-mentioned newspaper articles. The trial court did not err in its evidentiary rulings in this case. See Allums, supra (evidence that an advisory speed limit sigu at a curve placed by the parish post-accident was inadmissible evidence, of subsequent remedial measures); Tilden v. Blanca, L.L.C., 12-1311 (La.App. 4th Cir.06/26/13), 119 So.3d 962 (evidence that additional rugs had been placed in restaurant after accident was inadmissible evidence of subsequent remedial measures); Daigle v. Parish of Jefferson, 08-1310 (La.App. 5th Cir.12/08/09), 30 So.3d 55, writ denied, 10-0044 (La.03/26/10), 29 So.3d 1262 (evidence of trimmed foliage around stop sign post-accident was inadmissible as evidence of subsequent remedial measure); Ibieta v. Star Casino, Inc., 98-0314 (La.App. 4th Cir.10/07/98), 720 So.2d 143, writ denied, 98-2806 (La.01/08/99), 735 So.2d 635 (evidence that signage and pavement markings on private road were changed after accident was inadmissible evidence of subsequent remedial measures); and Brown v. Diamond Shamrock, Inc., 95-1172 (La.App. 3d Cir.03/20/96), 671 So.2d 1049 (photographs showing car wash floor in clean condition when accident happened while floor was covered in algae was inadmissible evidence of subsequent remedial measures).

Summary Judgment Rulings

In determining whether summary judgment is appropriate, appellate courts re[650]*650view evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smitko v. Gulf S. Shrimp, Inc., 11-2566 (La.07/02/12), 94 So.3d 750; Monroe Surgical Hospital, LLC v. St. Francis Medical Center, Inc., 49,600 (La.App.2d Cir.08/21/14), 147 So.3d 1234, writ denied, 14-1991 (La.11/21/14), 160 So.3d 975; Rain and Hail, L.L.C. v. Davis, 49,813 (La.App.2d Cir.05/20/15), 165 So.3d 1204.

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196 So. 3d 645, 2016 La. App. LEXIS 982, 2016 WL 2908141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/passon-v-fields-lactapp-2016.