Judgment rendered July 13, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,565-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
SEINE LILES Plaintiff-Appellant
versus
GREAT WEST CASUALTY INS. Defendants-Appellees CO., ET AL
Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 60809
Honorable Thomas Wynn Rogers, Judge
DUNAHOE LAW FIRM Counsel for Appellant, By: Jared Dunahoe Seine Liles a/k/a Regal Shez Liles
DAVID SCOTT KENDRICK
BREAZEALE, SACHSE & WILSON, L.L.P. Counsel for Appellees, By: Katherine M. Cook Great West Casualty Christopher A. Mason Insurance Company, Douglas K. Williams Nelson Freight Service Incorporated, Bruno Dziedzic
MARICLE & ASSOCIATES Counsel for Appellee, By: Stacey S. Melerine Mason Forest Products, Inc. WILLIAMS FAMILY LAW FIRM, L.L.C. Counsel for Appellee, By: Joe Payne Williams, Jr. Louisiana Farm Bureau Mutual Insurance Company
JEFF LANDRY Counsel for Appellee, Attorney General State of Louisiana, DOTD
SHONDA DENEE LEGRANDE CHARLES BRYAN RACER Assistant Attorney Generals
Before STONE, STEPHENS, and MARCOTTE, JJ. STONE, J.
This personal injury suit arises from the Third Judicial District Court,
the Honorable Thomas Rogers presiding. Seine Liles, the plaintiff-
appellant, seeks to recover damages for alleged injuries sustained when she
ran into the back end of an 18-wheeler trailer. The defendants concerned in
this appeal are: (1) the driver of the 18-wheeler, Bruno Dziedzic (“Mr.
Dziedzic”); (2) Mr. Dziedzic’s employer, Nelson Freight Services, Inc.; and
(3) Great Western Casualty Insurance Company. The trial court granted
summary judgment in favor of these defendants on the grounds that: (1) Mr.
Dziedzic did not breach his duty of care; (2) even if Mr. Dziedzic had
breached his duty of care, the plaintiff’s injuries were outside the scope of
the protection afforded by that duty; and (3) the plaintiff’s own negligence
was the sole cause of the accident.
There is a clear surveillance video that reflects the point of collision
from approximately two minutes before the crash to a few seconds
afterward. It also shows that, on the day of the accident, the weather was
sunny and clear. Mr. Dziedzic was operating an 18-wheel tractor-trailer
(“18 wheeler”) on Highway 167 north in Ruston, Louisiana. The video
shows that he activated his hazard flashers and commenced a right turn into
the driveway for Mason Forest products, which is located in the city of
Ruston and is adjacent to a long, straight, flat section of the highway.
Because of obstruction by other three other vehicles along the right side of
the driveway, Mr. Dziedzic was unable to pull the trailer completely off the
highway. His trailer partially obstructed the outside (right) lane of Highway
167 for approximately two minutes before the plaintiff struck the right rear
corner of the trailer. During the first minute after Mr. Dziedzic commenced the turn, six vehicles passed without incident.1 Approximately halfway
through this two-minute period, Mr. Dziedzic pulled further into the
driveway and thereby got more of his trailer out of the roadway – but not
entirely. When Ms. Liles came upon Mr. Dziedzic’s trailer, there was no
other traffic in the area. Ms. Liles crashed into the passenger side corner of
the rear end of the trailer without ever hitting her brakes or making any
evasive maneuver.
In his deposition, Mr. Dziedzic testified that, as he approached the
Mason Forest driveway, he could not see whether he would be able to
complete the turn because there was a fence obstructing his view. The video
shows that his view was also obstructed by the three trucks parked along the
driveway. Mr. Dziedzic also testified that, upon commencing the turn, it
was even more difficult to judge the depth of the available space in the
driveway, i.e., whether he could completely fit the length of his 18-wheeler
and trailer inside the driveway.
In her deposition, the Ms. Liles testified that she was familiar with this
portion of Highway 167, as she traveled the same path to drop her child off
at school for at least a year. She also stated that she had previously seen 18-
wheelers entering and exiting the Mason Forest Products driveway.2 Ms.
Liles admitted that she did not see Mr. Dziedzic’s truck until a “split-
second” before she collided with it, but could not explain why she did not
see it and could not (or would not) testify that she was not looking at her cell
1 Volume 2, 315-19; 166-468; volume 3 page 546, exhibits four, five, six (Bruno Dziedzic deposition 51-53, 71 & 131) 2 Volume 2 to 43-248 (Exhibit 2, plaintiff deposition 40:12-18; 41, 3-25; 50:3-14; 53:10-16) 2 phone at the time.3 The video shows that Ms. Liles’ view of the 18-wheeler
was unobstructed for quite a substantial distance ahead from the point of
impact.
Ms. Liles filed suit and propounded discovery requests for the Nelson
Freight’s training materials, safety manual, and communications with Mr.
Dziedzic regarding his trip to Mason Forest. The defendants objected to the
discovery request on the ground that the material requested was irrelevant,
and the plaintiff filed a motion to compel. The defendants filed a motion
for summary judgment. The plaintiffs filed a motion to continue on the
ground that they had not been afforded adequate opportunity for discovery,
and also filed the affidavit of Lew Grill, who opined that Mr. Dziedzic
breached the standard of care for 18-wheeler drivers. The defendants filed a
motion to strike the affidavit. The trial court denied the plaintiff’s motion to
continue and motion to compel, and granted the defendants’ motion to strike
and motion for summary judgment.
The plaintiff now appeals, and urges the following assignments of
error: (1) the trial court erred in granting the motion to strike; (2) the trial
court erred in denying the motion to compel; (3) the trial court erred in
denying the motion to continue; and (4) the trial court erred in finding there
were no genuine issues of material fact and that the defendants were entitled
to judgment as a matter of law.
DISCUSSION
Motion to strike
3 volume 2, 245, 254 3 A trial court’s decision on a motion to strike an expert affidavit is
reviewed under an abuse of discretion standard. Madison v. Inter-Cont’l
Hotels Corp., 14-0717 (La. App. 4 Cir. 8/26/15), 173 So. 3d 1246, writ-
denied, 15-1757 (La. 11/6/15), 180 So. 3d 10. Furthermore, “[e]rror may
not be predicated on a ruling which…excludes evidence unless…the
substance of the evidence was made known to the court by counsel.” La.
C.E. art.103. “It is incumbent upon the party who contends its evidence was
improperly excluded to make a proffer, and if it fails to do so, it waives the
right to complain of the exclusion on appeal.” Murphy v. Savannah, 51,906
(La. App. 2 Cir. 4/11/18), 246 So. 3d 785, 796, rev’d on other
grounds, 2018-0991 (La. 5/8/19), 282 So. 3d 1034. In Murphy, we held that
the appellants, by failing to make a proffer, waived their right to appeal the
trial court striking from the record documents submitted in opposition to
summary judgment.4 Finally, in Titlesite LLC v. Webb, 36,437 (La. App. 2
Cir. 12/11/02), 833 So. 2d 1061, 1068–69, we explained:
It is well settled that pursuant to La. C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings. The appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Memoranda and exhibits not filed in evidence are not part of the record on appeal. The briefs of the parties and the attachments thereto are not part of the record on appeal. Further, this court does not consider exhibits filed in the record which were not filed into evidence.
Thus, the mere fact that a purported exhibit is physically contained in
the record does not allow the appellate court to consider it as evidence on
4 The documents were attached to the appellants’ expert affidavit submitted in opposition to the defendant’s motion for summary judgment.
4 appeal. An exhibit must either be admitted into evidence specifically
designated as a proffer in order for the appellate court to be able to consider
it on appeal.
The transcript of the hearing wherein the trial court granted the
defendants’ motion to strike and motion for summary judgment reflects that
Ms. Liles’ counsel did not request to make a proffer of the purported expert
affidavit. Likewise, in her brief to this court, Ms. Liles does not allege that
she made a proffer of the purported expert affidavit in the trial court.
Accordingly, the issue of the admissibility of the purported expert affidavit
is beyond review. The trial court’s grant of the motion to strike must be
affirmed.
Motion for summary judgment
After an opportunity for adequate discovery, a motion for
summary judgment shall be granted if the motion , memorandum,
and supporting documents show that there is no genuine issue as to material
fact and that the mover is entitled to judgment as a matter of law. La. C.C.P.
art. 966(A)(3). A fact is ‘material’ when its existence or nonexistence may
be essential to plaintiff’s cause of action under the applicable theory of
recovery. Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d
791, 814. A genuine issue is one regarding which reasonable persons
could disagree; if reasonable persons could reach only one conclusion, there
is no need for a trial on that issue and summary judgment is appropriate.
Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764.
La. C.C.P. art. 966(D)(1) allocates the burden of proof on a motion for
summary judgment as follows:
5 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.
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. La. C.C.P. art. 966(A)(4). Furthermore, 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. La. C.C.P. art. 966(D)(2).
The duty-risk analysis is the standard negligence analysis employed in
determining whether to impose liability under La. C.C. art. 2315. Mathieu v.
Imperial Toy Corp., 94-0952, p. 4 (La. 11/30/94), 646 So. 2d 318, 321. This
approach provides an analytical framework for evaluation of liability and
requires proof by the plaintiff of five separate elements: (1) the defendant
had a duty to conform his conduct to a specific standard (the duty
element); (2) the defendant’s conduct failed to conform to the appropriate
standard (the breach element); (3) the defendant’s substandard conduct
was a cause in fact of the plaintiffs injuries (the cause-in-fact element);
(4) the defendant’s substandard conduct was a legal cause of the plaintiffs
injuries (legal cause); and (5) the actual damages (the damages element).
Fowler v. Roberts, 556 So. 2d 1, 4 (La. 1989), reh’g granted on other grounds
6 and original opinion reinstated as supplemented, 556 So. 2d at 13 (La.
1990); Ebarb v. Matlock, 46,243 (La. App. 2 Cir. 5/18/11), 69 So.3d
516, writ denied, 11-1272 (La. 9/23/11), 69 So. 3d 1164. It is axiomatic that
the issue of whether a duty is owed is a question of law, and the issue of
whether a defendant has breached a duty owed is a question of fact.
Broussard v. State ex rel. Off. of State Bldgs., 2012-1238 (La. 4/5/13), 113
So. 3d 175, 185.
Vehicular traffic on public roads is statutorily regulated in Louisiana;
these statutes and the related jurisprudence establish the duty of care
applicable to the operation of motor vehicles on public roads in Louisiana.
La. R.S. 32:104(A) states:
No person shall…turn a vehicle to enter a private road or driveway…unless and until such movement can be made with reasonable safety.5
La. R.S. 32:141(A) states:
Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
5 La. R.S. 32:101(A) provides that “the driver of a vehicle intending to turn at an intersection shall…” (Emphasis added). The term “intersection,” for this purpose, means the place where to highways joined one another at (or approximately at) right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.” La. R.S. 32:1(33)(a) (Emphasis added). “Highway means the entire with between the boundary lines of every way or place of whatever nature publicly maintained in open to the use of the public for the purpose of vehicular travel.” La. R.S. 32:1(32). The plaintiff’s contention that La. R.S. 32:101 is applicable to this case is erroneous. It is undisputed that Mason Forest Product’s driveway is a “private drive,” not a highway intersection. 7 Recently, in Hester v. Walker, 20-01278 (La. 5/13/21), 320 So. 3d 362, the
Louisiana Supreme Court held that La. R.S. 32:141 is inapplicable to
vehicles “stopped on a highway on a temporary or momentary basis while
waiting to turn.” The Hester court added, “any interpretation which would
apply the statute to a brief temporary stop made as a matter of necessity in
the ordinary course of traffic would result in absurd consequences.”
(Emphasis added).6
In effect, the defendants argue that the plaintiff cannot prove that Mr.
Dziedzic breached the applicable standard of care. To avoid summary
judgment, plaintiff must either: (1) introduce, for the purpose of summary
judgment, evidence sufficient to establish a prima facie case that Mr.
Dziedzic breached his duty; or (2) demonstrate that she has not had an
adequate opportunity for discovery. La. C.C.P. art. 966(A)(3) & (D).
The facts are not in dispute. It is only ultimate conclusions that are in
dispute. We hold that it was not a breach of duty for Mr. Dziedzic to
commence the right turn when he could not determine beforehand that he
would be able to immediately complete the turn. As recognized in Hester,
supra, motor vehicles often temporarily stop in a lane of travel and do so for
various reasons, including waiting to make a turn and avoiding hitting
pedestrians in a crosswalk. In making a right turn, the motorist’s duties to
following traffic are satisfied if the turning motorist decelerates at a
reasonable rate and timely activates the appropriate signal lights. A
6 La. R.S. 32:71 provides that, on two-way highways with more than one lane going in each direction, vehicles are to be driven in the right lane except when the right lane is closed/obstructed, or when passing another vehicle that is in the right lane. The plaintiff contends that Mr. Dziedzic violated this statute when he veered into the left lane to afford his turn enough width. Even if true, this is immaterial because such a violation did not and could not have any causal relationship with the accident.
8 motorist’s duty of care obviously does not prohibit stopping in the lane of
travel and waiting to commence or complete a turn. Indeed, a motorist
generally may stop in the appropriate lane of the roadway and wait to
commence a turn when the way is not clear. Similarly, when a motorist
commences a right turn without being able to ascertain in advance whether
the turn can be completed, the motorist may stop the vehicle in the roadway
if an obstruction prevents completion of the turn.
Mr. Dziedzic’s undisputed testimony indicates that his view of the
driveway was obstructed, and therefore, he could not determine in advance
whether he would be able to complete the turn. Based on the evidence
admitted for the purpose of summary judgment, no reasonable factfinder
could conclude that, under these circumstances, Mr. Dziedzic breached any
duty of care in commencing the turn without being able to complete it.
The plaintiff asserts a second, alternative act of negligence on the part
of Mr. Dziedzic. Specifically, plaintiff contends that Mr. Dziedzic had room
to complete the turn and get his vehicle and trailer completely out of the
highway prior to Ms. Liles’ arrival at the point of contact, but failed to do so.
In support, the plaintiff cites the photographs taken by the investigating
officer at the scene of the crash. Alone, these photographs, which were
taken after the accident, cannot constitute prima facie proof that Mr.
Dziedzic had room to completely get his vehicle and trailer out of the road
prior to the accident. Furthermore, even if it is assumed that no additional
room became available after the accident but before the photographs were
taken, the photographs nonetheless do not and cannot sufficiently prove that
there was sufficient room to get enough of the trailer out of the road to
prevent the accident. 9 The plaintiff also asserts that there is an issue regarding why Mr.
Dziedzic could not pull in further. According to the investigating officer’s
deposition testimony, Mr. Dziedzic said there was a vehicle in the way. In
his own deposition testimony, Mr. Dziedzic testified that “immediately” in
front of his vehicle there was a fence, not another vehicle. The plaintiff
claims this is an inconsistency in the statements of Mr. Dziedzic. However,
this is specious “cherry picking” by the plaintiff. Plaintiff’s counsel
accurately cited the page and line of the deposition transcript wherein it is
reflected that Mr. Dziedzic did state that there was a fence directly in front
of his vehicle. However, plaintiff’s counsel conspicuously omits the fact
that, on the next page of the deposition transcript, Mr. Dziedzic stated there
was a vehicle to the right side of him that his trailer would have struck it had
he continued to pull forward. The video confirms that there was a flatbed
truck/trailer and two 18-wheelers parked on the right side of the driveway.
Furthermore, Mr. Dziedzic adamantly testified that it was less than 3 feet of
space between the front end of his vehicle and the fence. The plaintiff has
failed to establish prima facie evidence that Mr. Dziedzic could have pulled
into the driveway far enough to prevent the collision.
Motion to compel and motion to continue
The plaintiff argues that the trial court erred in denying her motion to
compel discovery of: (1) Nelson Freight’s safety and operating manuals,
standards and policies; and (2) Nelson Freight’s communications with Mr.
Dziedzic regarding the trip he was on when the crash occurred. The
plaintiff contends that these materials are relevant because they may
demonstrate that Mr. Dziedzic failed to follow instructions in pulling into
the Mason Forest driveway when he could not complete the turn, and 10 therefore, breached the applicable duty of care. The plaintiff further argues
that this error rendered her opportunity for discovery inadequate pursuant to
La. C.C.P. art. 966(A)(3), thus precluding summary judgment and
necessitating a continuance.
The defendants objected to producing these documents on the
ground that the documents are not relevant.
La. C.C.P. art. 1422 defines the general scope of discovery as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (Emphasis added).
“In ruling upon discovery matters, the trial court is vested with broad
discretion, and, upon review, an appellate court should not disturb such
rulings absent a clear abuse of discretion.” Acadiana Renal Physicians v.
Our Lady of Lourdes Reg’l Med. Ctr., Inc., 21-586 (La. App. 3 Cir. 10/4/21),
329 So. 3d 418, 427, writ denied, 2021-01615 (La. 1/12/22), 330 So. 3d 624,
writ denied, 21-01614 (La. 1/12/22), 330 So. 3d 629. In conducting its
review, the appellate court must balance the information sought in light of
the factual issues involved and the hardships that would be caused by the
court’s order when determining whether the trial court erred in ruling on a
discovery order. Favrot v. Favrot, 12-1573, p. 4 (La. App. 4 Cir. 5/1/13),
115 So. 3d 1190, 1193, writ-denied, 13-1735 (La. 11/1/13), 125 So. 3d 433.
11 La. C.E. art. 401 defines relevant evidence as “evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.” However, “[b]ecause it is
the applicable substantive law that determines materiality, whether a
particular fact in dispute is ‘material’ for summary judgment purposes can
be seen only in light of the substantive law applicable to the case.” Richard
v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, 137.
The trial court did not abuse its discretion in denying the plaintiff’s
motion to compel discovery. As explained above, La. R.S. 32:104(A)
and the related jurisprudence define a driver’s duty in making a right turn
into a private drive from a public roadway. Therefore, Nelson Freight’s
safety and operating manuals and policies are immaterial to Mr.
Dziedzic’s duty of care. The same is true of Nelson Freight’s
communications with Mr. Dziedzic. The denial of the plaintiff’s motion
to compel did not render the plaintiff’s opportunity for discovery
inadequate.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is
AFFIRMED. All costs of this appeal are taxed to the plaintiff.