STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-876
RAVEN BOYANCE, ET AL.
VERSUS
UNITED FIRE AND CASUALTY COMPANY, ET AL.
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 82216 HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
AFFIRMED.
Conery, J., dissents and assigns reasons. David R. Rabalais The Dill Firm Post Office Box 3324 Lafayette, Louisiana 70502-3324 (337) 261-1408 Counsel for Defendants/Appellees: Canal Insurance Company Clodhopper Trucking, LLC William Caldwell
Kraig Thomas Strenge Post Office Drawer 52292 Lafayette, Louisiana 70502-2292 (337) 261-9722 Counsel for Defendants/Appellants: Christopher Crain Louisiana Fresh Produce, LLC United Fire and Casualty Company
Harry K. Burdette The Glenn Armentor Law Corporation 300 Stewart Street Lafayette, Louisiana 70501 (337) 233-1471 Counsel for Plaintiff/Appellee: Raven Boyance Raven Boyance o/b/o Rashawn Boyance KEATY, Judge.
This appeal arises out of a three-vehicle collision. Appellants, United Fire
and Casualty Company, Christopher Crain, and Louisiana Fresh Produce, LLC
(hereafter collectively referred to as the Crain Defendants), appeal a judgment
granting summary judgment in favor of defendants, Canal Insurance Company,
William Caldwell, and Clodhopper Trucking, LLC (hereafter collectively referred
to as the Caldwell Defendants), “finding that William R. Caldwell was without
fault in causing the accident giving rise to this litigation.” For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Raven Boyance, individually and on behalf of her minor son, Rashawn
Boyance (hereafter collectively referred to as Ms. Boyance or Plaintiff), filed a
Petition for Damages in January 2015 against the Crain and the Caldwell
Defendants. The Petition alleged, in pertinent part, as follows:
3. On January 9, 2014, [Ms.] Boyance was the driver of a 1999 Dodge Dakota. . . . 4.
Ms. Boyance was traveling westbound on I-10, in St. Martin Parish, State of Louisiana. She was forced to slow to a stop after a 2000 Kenworth Trailer/Truck, driven by WILLIAM R. CALDWELL, and owned by CLODHOPPER TRUCKING, L.L.C., pulled onto the roadway from the shoulder immediately ahead of Ms. Boyance, without notice. Ms. Boyance immediately applied her brakes.
5. At that time, CHRISTOPHER D. CRAIN, while operating a 2012 Isuzu Truck owned by LOUISIANA FRESH PRODUCE, L.L.C., suddenly, and without warning, violently struck the back of Ms. Boyance’s vehicle. The force of the collision was so severe that it forced Ms. Boyance’s vehicle to rotate clockwise and then be pushed into the 2000 Kenworth Trailer/Truck being operated by Mr. WILLIAM R. CALDWELL. The full force of the collision set off a chain reaction that also forced Ms. Boyance’s vehicle into the rear of the vehicle in front of her, then continue to rotate clockwise until it came to a rest in the middle of the roadway, engulfed in flames. Plaintiff, Rashawn Boyance was a passenger in the vehicle, and was trapped in his car seat in the back seat of the burning car, as his mother watched. 6.
At the time of the accident Mr. WILLIAM R. CALDWELL was an employee and agent of CLODHOPPER TRUCKING, L.L.C.. Further, at the time of the accident, Mr. CHRISTOPHER D. CRAIN was an employee and agent of CUSIMANO-CUCCIA, L.L.C. D/B/A LOUISIANA FRESH PRODUCE L.L.C. AND LOUISIANA FRESH FRUITS AND VEGETABLES, D/B/A LOUISIANA FRESH PRODUCE, L.L.C.
The Caldwell Defendants filed a Motion for Summary Judgment (MSJ) on
July 26, 2016, asserting that Ms. Boyance would be unable to meet her burden of
proving negligence on the part of Mr. Caldwell. After several continuances, the
MSJ came for hearing on April 13, 2017. At the conclusion of the hearing, the trial
court granted summary judgment in favor of the Caldwell Defendants.
The Crain Defendants now appeal, asserting that1:
1. Opposing counsel for Canal Insurance, Clodhopper and Caldwell failed to make a proper record for summary judgment.
2. The Honorable Louis Pittman, Jr. erred in making a factual finding on ruling on a Motion for Summary Judgment. 3. The Honorable Louis Pittman, Jr. erred in granting plaintiff’s[2] Motion for Summary Judgment.
DISCUSSION
“Appellate review of the granting of a motion for summary judgment is de
novo, using the identical criteria that govern the trial court’s consideration of
whether summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-
2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755. “The summary judgment procedure is
1 For ease of discussion, we renumbered the Crain Defendants’ assignments of error. 2 The Crain Defendants’ assignment of error is factually incorrect as the MSJ at issue in this appeal was filed by the Caldwell Defendants rather than by Plaintiff. We note that Plaintiff did not file any pleadings in response to the Caldwell Defendants’ MSJ. 2 designed to secure the just, speedy, and inexpensive determination of every
action. . . . The procedure is favored and shall be construed to accomplish these
ends.” La.Code Civ.P. art. 966(A)(2). On de novo review, “there is no deference
to the trial judge’s legal findings, and we make an independent review of the
evidence in determining whether there is no genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law under La.Code Civ.P.
art. 966.” Bridges v. Cepolk Corp., 13-1051, p. 10 (La.App. 3 Cir. 2/12/14), 153
So.3d 1137, 1145, writ denied, 14-901 (La. 8/25/14), 147 So.3d 1117. “A genuine
issue of material fact 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.” Smitko, 94 So.3d at 755.
According to La.Code Civ.P. art. 966(D)(1):
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 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.
Code of Civil Procedure Article 967(B) further provides:
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
The basis of the Caldwell Defendants’ MSJ was that Ms. Boyance would be
unable to meet her burden of proving that Mr. Caldwell acted negligently and that
his negligence caused the harm suffered by her and her son. In support of their
3 MSJ, the Caldwell Defendants attached several excerpts from Ms. Boyance’s
deposition.
The Crain Defendants opposed the motion claiming summary judgment was
premature because discovery was not complete as they had been unable to locate
and depose Mr. Crain and because they and the Caldwell Defendants had hired
experts who had yet to be deposed. They further claimed that many genuine issues
of material fact remained which precluded the granting of summary judgment in
favor of the Caldwell Defendants. The Crain Defendants attached to their
opposition the complete depositions of Ms. Boyance and Mr. Caldwell, along with
the deposition of State Trooper Timothy Breaux, who investigated the accident.
In a reply memorandum, the Caldwell Defendants pointed out that their MSJ
was filed nineteen months after this suit was filed. They alleged that the “only
impediment to the motion moving forward” is the inability of the Crain Defendants
to produce their insured driver, Christopher Crain, for deposition. The Caldwell
Defendants submitted that the so-called questions posed in the Crain Defendants’
opposition were not questions of material fact and as such did not preclude the
granting of summary judgment in their favor. In January 2017, the trial court
granted the Caldwell Defendants’ request to reset the MSJ for hearing.
Thereafter, the Crain Defendants filed a supplemental opposition, to which
they attached excerpts of the deposition testimony of Brent Munyon, the Forensic
Accident Reconstructionist hired by the Caldwell Defendants; the preliminary
report written by Mr. Munyon; the transcript of a February 2014 recorded
statement of William Caldwell; and the transcript of a January 2014 recorded
statement of Joe Robinson, an independent witness who was driving behind
Mr. Crain’s truck when the January 9, 2014 accident occurred. According to the
Crain Defendants, the exhibits attached to their supplemental opposition 4 “emphasize[d] the numerous factual issues herein,” precluding the appropriateness
of utilizing the summary judgment procedure in this matter. In response, the
Caldwell Defendants filed an objection to the supplemental opposition and
additional documents filed by the Crain Defendants as it was filed only six days in
advance of the already several times continued April 13, 2017 hearing, in
contravention of the requirement in La.Code Civ.P. art. 966(B)(2) that “[a]ny
opposition to the motion [for summary judgment] and all documents in support of
the opposition shall be filed and served . . . not less than fifteen days prior to the
hearing on the motion.” Alternatively, the Caldwell Defendants requested that
they be allowed to file an accompanying supplemental reply memorandum in
support of their MSJ. They attached to the pleading Mr. Munyon’s entire
deposition, along with the aforementioned transcribed statements of William
Caldwell and Joe Robinson.
Ms. Boyance did not oppose the Caldwell Defendants’ MSJ, nor did she
appear when the motion was heard on April 13, 2017. After listening to oral
arguments, the trial court stated that it had read the Crain Defendants’
supplemental opposition despite the Caldwell Defendants’ opposition to its having
been filing late. Thereafter, the trial court granted summary judgment in favor of
the Caldwell Defendants and designated the judgment as final for purposes of
immediate appeal.
Did the Caldwell Defendants Make a Proper Record to Support Their MSJ?
In their first assigned error, the Crain Defendants assert that because counsel
for the Caldwell Defendants failed to “formally offer his supporting documents
into evidence,” the record does not contain evidence to support the granting of
summary judgment in their favor. Because our review of this appeal is de novo,
we can only consider evidence that was properly offered in support of and in 5 opposition to the MSJ. Accordingly, we must address this assignment of error
before considering the merits of the MSJ.
The procedural rules governing summary judgments are found in La.Code
Civ.P. art. 966, which at all times relevant to this appeal provided, in pertinent part,
as follows:
A. (4) The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. . . .
....
D. (2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.
Louisiana Code of Civil Procedure Article 966 no longer requires the formal
introduction of evidence at a summary judgment hearing. Evans v. Bordelon, 13-
888 (La.App. 3 Cir. 3/19/14), 161 So.3d 674. The documents attached to the
Caldwell Defendants’ various memoranda in support are the type of documents
authorized in La.Code Civ.P. art. 966(A)(4) for a court’s consideration of a MSJ.
Moreover, the Crain Defendants failed to object to any of the documents the
Caldwell Defendants filed in support of their MSJ. “The intent of Article
966(D)(2) was to make it mandatory that any objection to a document filed in
support of or in opposition to a motion for summary judgment must be objected to
in a timely filed opposition or reply memorandum.” Adolph v. Lighthouse Prop.
Ins. Corp., 16-1275, p. 6 (La.App. 1 Cir. 9/8/17), 227 So.3d 316, 320 (emphasis
added). Without addressing the merits, we find that the Caldwell Defendants
supported their MSJ in conformity with the procedural dictates of La.Code Civ.P. 6 art. 966. Therefore, the supporting documents filed by the Caldwell Defendants
became a part of the record and can be considered by this court on appeal. The
Crain Defendants’ first assigned error lacks merit.
Was Summary Judgment Properly Granted?
In their second and third assignments of error, the Crain Defendants insist
that the trial court erred in making a factual finding on a MSJ and in granting
summary judgment in favor of the Caldwell Defendants. Because the issues raised
in these two errors are intertwined, we will discuss them simultaneously.
As stated above, this court must perform “an independent review of the
evidence in determining whether there is no genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law under La.Code Civ.P.
art. 966.” Bridges, 153 So.3d at 1145 (emphasis added). In Phillips v. City of
Crowley, 12-1306, pp. 5-6 (La.App. 3 Cir. 6/19/13), 115 So.3d 1240, 1243-44
(citations omitted), writ denied, 13-1718 (La. 11/1/13), 125 So.3d 432, this court
explained:
“[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751 (quoting South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596 So.2d 211 (La.1992)). A genuine issue is one in 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. Id. Whether a fact is material is determined in light of the relevant substantive law. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.
“We must analyze the substantive law governing the instant matter to determine
whether a fact is material.” Leblanc v. Bouzon, 14-1041, p. 3 (La.App. 3 Cir.
3/4/15), 159 So.3d 1144, 1146. Louisiana Revised Statutes 32:81(A), titled
“Following vehicles,” provides, that “[t]he driver of a motor vehicle shall not
7 follow another vehicle more closely than is reasonable and prudent, having due
regard for the speed of such vehicle and the traffic upon and the condition of the
highway.” “A following motorist involved in a rear-end collision, therefore, is
presumed to have breached this statutory duty.” Bouzon, 159 So.3d at 1146.
[A] legal presumption does exist that a following motorist who collides into the rear end of a leading automobile is at fault. Matherne v. Lorraine, 03-2369 (La.App. 1 Cir. 9/17/04), 888 So.2d 244, 246. The following motorist must exonerate himself or herself from fault before he or she can completely avoid liability. Id. However, notwithstanding the presumption of negligence, a favored motorist can still be assessed with comparative fault if his or her substandard conduct contributed to the cause of the accident. Id. “[O]nce the presumption of negligence attaches to the defendant, the ordinary rules of comparative negligence apply[.”]
Id. at 1147 (quoting Graffia v. La. Farm Bureau Cas. Ins. Co., 08-1480, p. 7
(La.App. 1 Cir. 2/13/09), 6 So.3d 270, 274). “A motion for summary judgment
can be granted on the presumption that a following motorist who strikes a leading
motorist is negligent.” Lewis v. Old Republic Ins. Co., 17-456, p. 3 (La.App. 3 Cir.
8/23/17), 226 So.3d 557, 559.
In Bouzon, the lead driver in a three-vehicle collision appealed the trial
court’s grant of summary judgment in favor of the middle driver in the personal
injury lawsuit the lead driver filed against the drivers of the other two vehicles
involved in the accident. Upon de novo review, this court affirmed, noting that
“[t]he burden of proof remains with the following motorist who must prove that he
was not negligent.” Bouzon, 159 So.3d at 1147. Thereafter, we explained:
In order to rebut the objective evidence that [the driver of the first vehicle] and [the driver of the second vehicle] were able to safely stop and avoid a collision, [the driver of the third vehicle] must show that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance prior to rear-ending [the second] vehicle.
Id. at 1149. Because we concluded that the testimony and evidence submitted in
favor of and in opposition to the middle driver’s MSJ indicated that the driver of 8 the third vehicle would not be able to rebut the presumption that he was at fault in
causing the accident, we affirmed. We rejected the lead driver’s contention that
“some of the fault attributed to [the driver of the third vehicle] may be transferred
to [the driver of the second vehicle,]” finding no evidence to support the lead
driver’s suggestion that the middle vehicle struck her car two times. Id. at 1147.
Finally, we found the sudden emergency doctrine inapplicable to the third driver
where the drivers of the first two vehicles “stopped their vehicles and avoided a
collision despite the heavy traffic.” Id. at 1149.
In the instant case, Ms. Boyance, the driver of the middle car, explained in
her deposition that when Mr. Caldwell merged onto I-10 in front of her, she was
able to slow down from seventy miles per hour to approximately forty miles per
hour because she could see him from a far distance away. She recalled telling her
son, “thank God I saw him,” and being rear-ended before she could finish her
sentence. She stated that she did not strike Mr. Caldwell’s truck before she was
struck from behind. Mr. Robinson, a truck driver who was traveling westbound on
I-10 about 150 yards behind Mr. Crain’s “6 wheeler,” gave a recorded statement
eleven days after the accident. Mr. Robinson stated that he was able to see
Mr. Caldwell’s “18 wheeler” merge onto the highway. He explained that, from
what he saw, he “guess[ed] the 6 wheeler might have clipped [Ms. Boyance’s]
SUV in the tail end which spun it around which hit the back of the tractor trailer.”
Mr. Robinson stated that he told his version of the accident to the investigating
state trooper.
Trooper Breaux testified in his deposition that Mr. Crain told him that he
was following behind Ms. Boyance’s vehicle on I-10 West, and when he realized
that her vehicle was slowing down, he was unable to stop in time to avoid hitting
her from behind. Trooper Breaux explained that he found no evidence that 9 Plaintiff’s SUV struck Mr. Caldwell’s truck before she was hit from behind by
Mr. Crain. After completing his investigation, Trooper Breaux concluded that
Mr. Crain had not maintained a safe, appropriate distance between his vehicle and
Ms. Boyance’s vehicle and issued a citation to him for following too close.
The Crain Defendants put great emphasis on the statement in Mr. Caldwell’s
deposition that he felt two bumps, the first one of which was very light and the
second one which was harder, and they suggest that Mr. Caldwell created a sudden
emergency by improperly merging in front of Ms. Boyance. They also point to
inconsistencies between the testimonies of Ms. Boyance, Mr. Caldwell, Trooper
Breaux, and Mr. Munyon regarding the precise location of the accident, which they
claim present a genuine issue of material fact that make the issue of Mr. Caldwell’s
liability inappropriate for resolution via summary judgment.
The Caldwell Defendants counter that the Crain Defendants have failed to
present any evidence that Mr. Caldwell “merged improperly or illegally” or in an
otherwise negligent manner. They refer to Ms. Boyance’s testimony wherein she
stated that it “wasn’t in a manner of me just jamming my foot on the brakes” but it
also “wasn’t just me slowly as if coming in to a stop sign.” Finally, they submit
that the minor discrepancies noted by the Crain Defendants do not amount to
genuine issues of a material fact.
We have completed a de novo review of the evidence offered in support of
and in opposition to the MSJ, and we conclude that the Crain Defendants failed to
rebut the presumption that Mr. Crain was negligent in causing the accident. We
are satisfied that no genuine issues of material fact remain in dispute and that the
Crain Defendants cannot exonerate Mr. Crain of fault or establish facts sufficient
to demonstrate the comparative fault of Mr. Caldwell. Although the initial burden
of proof would rest with Ms. Boyance at trial, if she were to succeed in proving 10 Mr. Crain’s fault in causing this accident, the burden would shift to the Crain
Defendants, based on their alleged affirmative defense, to prove that Mr. Caldwell
was comparatively at fault. Accordingly, the Crain Defendants had to do more
than simply “rest on the mere allegations . . . of [their] pleading” and were
required to “set forth specific facts” to show that a genuine issue remained
regarding Mr. Caldwell’s liability for causing the subject accident. La.Code Civ.P.
art. 967(B). They failed to do so. Because we are convinced that “reasonable
persons could reach only one conclusion,” i.e., that Mr. Caldwell did not commit
any negligence that resulted in the damages suffered by Ms. Boyance and her son,
we conclude that summary judgment was properly rendered in favor of the
Caldwell Defendants. Phillips, 115 So.3d at 1244. There is no merit to the Crain
Defendants’ second and third assigned errors.
DECREE
For the foregoing reasons, the trial court judgment in favor of Canal
Insurance Company, William Caldwell, and Clodhopper Trucking, LLC is
affirmed. All costs of this proceeding are assessed against Appellants, Christopher
Crain, Louisiana Fresh Produce, LLC, and United Fire and Casualty Company.
11 Conery, J., dissents and assigns reasons.
I respectfully dissent. After reviewing all the evidence and the trial judge’s
reasons, I would find that this “chain reaction collision” is not appropriate for
summary judgment.
A review of the summary judgment evidence shows that plaintiff, Ms.
Boyance, was driving in the right lane of I-10 W with her son as a passenger. She
saw an eighteen-wheeler, driven by Mr. Caldwell, unexpectedly pull into the lane
in front of her, requiring her to immediately apply her brakes. Ms. Boyance was
then hit from behind by Mr. Crain, propelling her vehicle into Mr. Caldwell’s
truck, where she then spun on the road, and her vehicle burst into flames. Ms.
Boyance sued Mr. Caldwell, his employer and its insurer, as well as Mr. Crain, his
employer and its insurer, claiming the collision and resulting damages were caused
by the fault of both drivers.
Nineteen months after suit was filed, the three Caldwell defendants filed a
collective motion for summary judgment, which was granted by the trial court.
The trial judge carefully weighed all of the evidence and concluded in his
oral reasons that when Ms. Boyance saw Mr. Caldwell’s eighteen-wheeler enter
her traffic lane, “she (Ms. Boyance) did moderate braking. She didn’t say she
slammed on her brakes, she said moderate braking and the fact that rains crystal
clear to me that Louisiana Fresh Produce (Mr. Crain’s vehicle) was the vehicle that
struck her first.” The conscientious trial judge in this case carefully reviewed all
the evidence and obviously made factual findings as to when Ms. Boyance first
saw Mr. Caldwell’s vehicle attempt to merge, whether she forcefully applied her
brakes, the relative speeds of the three vehicles and whether to accept Mr.
Caldwell’s testimony that he felt two impacts. Had all of this same evidence been 12 submitted for a decision on the merits, I would likely agree to affirm, as at a trial
on the merits, the trial judge has the duty and obligation to weigh the evidence,
assess credibility, make factual findings, and render a decision in accordance with
the law and the evidence.
However, I would find that the well-meaning trial judge improperly
weighed the evidence and made factual findings and conclusions that are
inappropriate for summary judgment based on the conflicting evidence in this case.
See Mecon v. Mobil Oil Company, 299 So.2d 380 (La.App. 3 Cir.), writ denied,
302 So.2d 308 (La.1974) (“the weighing of conflicting evidence on a material fact
has no place in summary judgment procedure”). I would submit that at the very
least, there is a genuine issue of material fact as to whether but-for Mr. Caldwell’s
manner of merging into traffic on I-10, this accident would not have occurred.
While I agree that the Crain vehicle was following too closely and/or driving
without due regard as to the safety of the preceding vehicle driven by Ms.
Boyance, there are genuine issues of material fact as to Mr. Caldwell’s
comparative fault for improperly merging onto I-10 from the shoulder or the merge
lane from the weigh station.
The majority affirmed the trial court’s judgment finding no genuine issues of
material fact to defeat the Caldwell defendants’ motion. The majority opinion
explores the law on following too closely and the presumption that a second driver,
Mr. Crain, who rear-ends the driver in front of him, Ms. Boyance, is presumed to
be at fault, and the Crain defendants did not properly show the existence of
genuine issues of material facts. The majority finds that the trial court was correct
to apply the presumption of negligence against Mr. Crain, his employer and its
insurer, and grant the Caldwell defendants’ motion for summary judgment
exculpating the driver of the eighteen-wheeler, Mr. Caldwell, from fault. 13 However, it is undisputed that Mr. Caldwell’s Kenworth eighteen-wheeler
tractor trailer attempted to merge onto I-10, a heavily traveled interstate at
approximately 8:00 am during peak traffic time. Ms. Boyance then saw the
eighteen-wheeler and immediately applied her brakes. Mr. Crain’s truck then
struck her from the rear, propelling her into Mr. Caldwell’s eighteen-wheeler. The
record evidence shows that when Mr. Caldwell entered onto I-10 in Ms. Boyance’s
lane of travel, the distance from the truck weigh station, the distance between the
three vehicles and the relative speed of the vehicles are all in dispute.
Ms. Boyance clearly stated in her deposition that Mr. Caldwell pulled onto I-
10 from the shoulder of the road unexpectedly and without warning or turn signals:
“once I saw him merger, I immediately just hit my brakes.” When asked whether
she gradually slowed down on seeing the eighteen-wheeler “merge on”, she stated:
“I wouldn’t say gradual . . . . I mean I seen him on the side of the road but his
merge on was unexpected. I had to kind of hesitate a little bit, but I didn’t actually
have to slam it (meaning her brakes) and tires burning, it wasn’t that extent. But it
was enough for me to have to quickly react.”
She further testified that she would have had to continue to brake to avoid
hitting Mr. Caldwell’s truck. At the very least Ms. Boyance’s deposition testimony
leaves open an interpretation of the evidence that Mr. Caldwell “unexpectedly” and
improperly merged into Ms. Boyance’s lane of traffic, causing her to “react
quickly” and “immediately just hit my brakes”, causing Mr. Crain then to strike her
vehicle from the rear, propelling her into Mr. Caldwell’s eighteen-wheeler.
Louisiana Revised Statutes 32:124 (the statute governing motorists entering
highways from private driveways), provides, “[t]he driver of a vehicle about to
enter or cross a highway from a private road, driveway, alley or building, shall stop
such vehicle . . . and shall yield the right of way to all approaching vehicles so 14 close as to constitute an immediate hazard.” In Sholar v. U.S. Fire Ins. Co., 261
So.2d 327, (La.App. 1 Cir. 1972) the court held that a motorist who enters the
highway from the shoulder is held to the same standard of care as a motorist
entering the highway from a private driveway.
A panel of our court in Loveday v. Travelers Ins. Co., 585 So.2d 597
(La.App. 3 Cir.); writ denied 590 So.2d 65 (La.1991) stated in a case similar to the
case at bar:
It is clear from the testimony and evidence that Jowers breached the duty set
for the under LSA - R.S. 32:64(B) by failing to accelerate his speed sufficiently
prior to attempting to re-enter the interstate from the shoulder. This negligence
was a cause in fact of the accident.
[6] Also, under LSA - R.S. 32:124 Jowers had a duty, in attempting to enter
the interstate from the shoulder, to yield the right of way to all approaching
vehicles so close as to constitute an immediate hazard. A motorist attempting to
enter the highway from the shoulder of the road is held to the same standard of
care as the motorist entering a highway from a private driveway. The motorist
entering a highway from a private driveway has the primary duty to avoid a
collision. Sholar v. U.S. Fire Ins. Co., 261 So.2d 327 (La.App. 1st Cir. 1972).
Also, Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385
(1972); Boutte v. Rig Hammers, Inc., 303 So.2d 805 (La.App. 3d Cir.1974); Bates
v. Lagars, 193 So.2d 375 (La.App. 2d Cir.1966), writ refused, 250 La. 267, 195
So.2d 146 (1967).
[7] This duty becomes more onerous as the hazards increase and requires a
motorist to use every reasonable means available to ascertain that his entry onto
the highway may be made in safety. Further, such a driver is required to keep a
lookout for vehicles upon the highway and to desist from entering until it is 15 apparent to a reasonable prudent person that such can be done in safety. Soileau v.
LaFosse, 558 So.2d 294 (La.App. 3d Cir.1990); Wells v. Allstate Insurance Co.,
510 So.2d 763 (La.App. 1st Cir.,) writ denied, 514 So.2d 463 (La.1987); Hardee v.
St. Paul Fire and Marine Ins. Co., 445 So.2d 771 (La.App. 3d Cir.1984).
In Maylen v. Great West Casualty Company, 15-484, (La.App. 3 Cir.
11/4/15), 178 So.2d 302, another panel of our court found that because the facts
were not in dispute in that case, summary judgment was appropriate. While
recognizing the duty of the merging motorist to yield the right of way, the
uncontroverted facts in that case indicated that once the defendant driver merged,
the second and third vehicles following him were able to slow their vehicles and
avoid a collision. “Neither was forced to make a complete stop or travel off of the
shoulder of the road.” The court stated: “Accordingly, the summary judgment
evidence shows that David (the merging vehicle) did not fail to yield to the
approaching vehicles so close as to constitute an immediate hazard. Thus David
did not breach his duty.” Id at p 306.
I would submit that the driver of an eighteen-wheeler entering traffic
on a heavily traveled Interstate Highway during peak traffic hours from a highway
weigh station or shoulder has an exceptionally high duty of care when attempting
to merge onto that busy interstate highway. Loveday v. Travelers Ins. Co., supra.
I would find that in this case there are genuine issues of material fact as to whether
Mr. Caldwell improperly merged onto I-10, which action contributed to this “chain
reaction collision.” I would reverse the summary judgment and remand the case to
the trial court for a full trial on the merits.