White v. State ex rel. Department of Transportation & Development

186 So. 3d 261, 2015 La.App. 4 Cir. 0853, 2016 La. App. LEXIS 96, 2016 WL 280973
CourtLouisiana Court of Appeal
DecidedJanuary 20, 2016
DocketNo. 2015-CA-0853
StatusPublished

This text of 186 So. 3d 261 (White v. State ex rel. Department of Transportation & Development) 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
White v. State ex rel. Department of Transportation & Development, 186 So. 3d 261, 2015 La.App. 4 Cir. 0853, 2016 La. App. LEXIS 96, 2016 WL 280973 (La. Ct. App. 2016).

Opinion

DENNIS R. BAGNERIS, SR, Judge.

hThe plaintiffs, Mr, and Mrs. Randall G. White, appeal the dismissal of their claims on summary judgment. For the following reasons, we affirm the trial court’s grant of summary judgment in favor of the defendant, the State of Louisiana through Department of Transportation and Development (“DOTD”).

FACTS AND PROCEDURAL HISTORY

On December 29, 2011, Mr. White sustained injuries when he was involved in a forty-one car accident oh Interstate 10 (“I-10”) West near the Michaud Boulevard exit in New Orleans, Louisiana. The accident occurred at approximately 3:50 a.m. and Mr.. White was identified-as vehicle number .twenty-five on the .traffic crash report. According to the petition, the acci[262]*262dent was caused by dense fog on the inter-, state that combined with smoke from a marsh fire that had been burning since August 2011, on nearby land owned by Little Pine Limited Partnership. On December 19, 2012, plaintiffs filed suit against DOTD, the City of New Orleans, and Little Pine Limited Partnership.

On December 4, 2014, DOTD filed a motion for summary judgment, pointing out that plaintiffs could not establish negligence or causation on the part of the DOTD and thus, no genuine issues of material fact remain as to DOTD’s pliability for the accident. Specifically, DOTD argued that it was ■ not liable to plaintiffs because: (1) it had no notice , of the presence of fog and smoke in the area of the accident; (2),it had no responsibility for lighting in the area of the accident; (3) there were no road defects, (4) it did not breach any duty to protect Mr. White from hazardous roadway conditions (fog and smoke) that was obvious and apparent to Mr. White; and (5) its actions-were discretionary governmental functions for which it is immune from liability.

In its motion for summary judgment, the DOTD relied on deposition testimony of the City of New Orleans Public Works Director, Mark Jernigan, as well as the affidavits of two DOTD Engineers, Christopher Morvant and Frederick L. Wetek-amm, III, to show that DOTD had no responsibility for the lighting at the location of the accident. DOTD also relied on the agreement between the City of New Orleans and DOTD, as well as the resolution of the New Orleans City Council, stating that the City of New Orleans is responsible for all lighting in the area of I-10 and Michoud Boulevard. Thus, DOTD argues that it had -no duty to plaintiffs to inspect or maintain street lights at the Michoud exit on I — 10.

DOTD further argued in its motion for summary judgment that the evidence clearly supports that there was no design defect, no road defect, and no unreasonably hazardous risk associated with the stretch of I — 10 at the time and place of the accident. In support of this argument, DOTD attached: (1) the deposition of New Orleans Fatality Detective Edgar Edwards; (2) the New Orleans Police Accident Report; (3) the Louisiana State Police Accident Reconstruction Report; (4) the affidavit of Louisiana State Trooper Tilden Elliott, III; (5) affidavits of DOTD Engineers, Christopher Morvant and Frederick Wetekamm; and (6) various New Orleans Fire Department (“NOFD”) documents indicating that NOFD |sdid not find that smoke from the marsh fire contributed to the accident and that DOTD had no involvement with the NOFD in the investigation and management of the marsh fire in December 2011 or any time prior to the accident. DOTD also submitted a certified copy of the National Weather Service report for the New Orleans area on December 28 and 29, 2011, showing no prediction of fog in the area of the accident. Thus, DOTD argues that plaintiffs’ allegations that it failed to properly maintain and repair the roadway, or warn of hazardous conditions, are without merit.

In opposition to DOTD’s motion for summary judgment, the plaintiffs submitted: (1) voluntary statements from drivers involved in the accident at issue indicating that visibility was greatly diminished by fog and/or smoke; (2) the depositions of Mr. White and Edgar Edwards, the New Orleans Fatality Detective, who testified that the street lights were not working in the area, of the accident and that smoke and fog were the causative factors in the forty-one car collision; (3) the affidavit of DOTD engineer, Frederick Wetekamm, attesting to the fact that DOTD knew that fog was a common occurrence in the area [263]*263between 1-10 and its intersection with I-510; (4) the deposition of Mark' Jernigan, the Director of Public Works for the City of New Orleans, ■ who testified that the inspection of lights was suspended from October, 2011 through January, 2012 because there was no funding to pay the contractor; and (5) various NOFD documents regarding the inaccessible marsh fire that started in August of 2011 in Eastern New Orleans.

The trial court granted DOTD’s motion for summary judgment, and by judgment rendered on April 15, .2015, dismissed the plaintiffs’ claims against the DOTD with prejudice. In her reasons for judgment, the trial judge stated that DOTD was not liable to the plaintiffs because: (1) DOTD was not responsible for |4the lighting in the accident area; (2) there were no road defects; and (3) there was no notice to DOTD of fog and/or smoke in the area. The plaintiffs now appeal arguing that there are genuine issues of fact that preclude summary judgment.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). We must determine whether the evidence admitted for purposes of the motion for summary judgment demonstrates that there are no disputed issues of material fact and that the defendants are entitled to summary judgment as a matter of law. La. C.C.P. art. 966. The burden of proof to show that no material factual issue exists is on the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party’s claim. Rather, the mover must point out to the trial court that there is an absence of factual support for one or more ele-meiits 'essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and the mover is entitled to judgment ás a matter of law. La. C.C.P. art. 966(C)(2)!

La.Rev.Stat. 48:35(E)(l)(a) provides in pertinent part that.the DOTD has “a duty to maintain, repair, construct, or reconstruct any public road, highway, bridge, or street, or any portion thereof, in a manner that is not unreasonably dangerous for a reasonably prudent driver.” The function of the DOTD is “to study, , administer, construct, improve, maintain, repair, and regulate the use of public transportation | ¿systems and to perform such other functions with regard to public highways, roads, and other transportation related facilities as may be conferred on the department by applicable law.” See La.Rev.Stat. 48:21(A). Further, La.Rev.Stat. 9:2798.1

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Related

Schroeder v. Board of Sup'rs
591 So. 2d 342 (Supreme Court of Louisiana, 1991)
Lee v. STATE, THROUGH DEPT. OF TRANSP. AND DEV.
701 So. 2d 676 (Supreme Court of Louisiana, 1997)
Netecke v. State Ex Rel. DOTD
747 So. 2d 489 (Supreme Court of Louisiana, 1999)

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186 So. 3d 261, 2015 La.App. 4 Cir. 0853, 2016 La. App. LEXIS 96, 2016 WL 280973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-ex-rel-department-of-transportation-development-lactapp-2016.