Williams v. Archer Western Construction, LLC

203 So. 3d 325, 2016 La.App. 4 Cir. 0158, 2016 La. App. LEXIS 1815
CourtLouisiana Court of Appeal
DecidedOctober 5, 2016
DocketNO. 2016-CA-0158
StatusPublished
Cited by3 cases

This text of 203 So. 3d 325 (Williams v. Archer Western Construction, LLC) 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
Williams v. Archer Western Construction, LLC, 203 So. 3d 325, 2016 La.App. 4 Cir. 0158, 2016 La. App. LEXIS 1815 (La. Ct. App. 2016).

Opinion

Madeleine M. Landrieu, Judge

| defendants, Archer Western Construction, LLC, and Arch Insurance Company (hereinafter collectively referred to as “Archer Western”), appeal the trial court’s granting of summary judgment in favor of defendants Eileen Maldonado and Imperial Fire and Casualty Insurance Company (“Imperial”). This case arises from an accident in which Ms. Maldonado drove her vehicle into an excavated portion of a street that was the site of a construction project operated by Archer Western. Imperial is Ms. Maldonado’s automobile insurer, and plaintiffs, Dana R. Williams and Derrick E. Sykes, were passengers in Ms. Maldonado’s vehicle. For the reasons that follow, we reverse the granting of sum[327]*327mary judgment and remand this matter for further proceedings.

On November 14, 2013, plaintiffs filed a petition for damages against Ms. Maldonado, Imperial and Archer Western, alleging injuries resulting from a single-vehicle accident in downtown New Orleans on the evening of December 6, 2012 at approximately 10:30 p.m. At the time of the accident, Ms. Maldonado was on her way to Harrah’s Casino with her daughter, Ms. Williams, and her friend, Mr. Sykes. Ms. Maldonado and Ms. Williams were both in college at the time and were celebrating their last day of final examinations for the semester.

l2According to the petition, as Ms. Maldonado drove through the intersection of Elks Place and Cleveland Avenue, the passenger side of the vehicle fell into an excavated portion of the street. This area was the site of a construction project, in which Archer Western was excavating large portions of Elks Place in conjunction with a Regional Transit Authority (“RTA”) project on the streetcar line. Archer Western contends that the road was supposed to be closed to the public at all times during this construction project, while Ms. Maldonado and her two passengers maintain there were no signs or barricades blocking the intersection. Because the work day at the construction site typically ended between 5:30 p.m. and 6:00 p.m., no workers were present at the time of the accident. There were also no other witnesses to the accident.

In their original petition, the plaintiffs claimed the accident was caused solely by the negligence of Archer Western, though Ms. Maldonado and Imperial were also named as defendants. The plaintiffs later amended the petition alleging the accident was caused by the negligence of Archer Western and/or Ms. Maldonado. Mr. Sykes subsequently settled with Archer Western, and his claims against Archer Western were dismissed with prejudice.

Ms. Maldonado and Imperial filed a motion for summary judgment asking that the plaintiffs’ claims against them be dismissed on the ground that there is no genuine issue of material fact that Ms. Maldonado was without fault in the accident. The trial court granted the motion for summary judgment, and dismissed the plaintiffs’ claims against Ms. Maldonado and Imperial. The judgment stated that the provisions of La. C.C.P. art. 966(G) apply to the judgment, prohibiting the consideration of Ms. Maldonado or Imperial in any subsequent allocation of fault. The trial court certified the judgment as final and immediately appealable.

| ¡Archer Western filed a motion for new trial, which was denied. Archer Western now appeals the trial court’s granting of the motion for summary judgment and the denial of the motion for new trial.

On appeal, Archer Western argues that the trial court erred in granting summary judgment and dismissing Ms. Maldonado and Imperial from this lawsuit. Archer Western argues that it produced evidence showing that there is a genuine issue of material fact as to whether Ms. Maldonado was negligent in the operation of her vehicle and shared at least some of the fault for this accident. To the contrary, Ms. Maldonado and Imperial argue that the evidence shows there is no genuine issue of fact that Ms. Maldonado was without fault in the accident.

Archer Western also argués that the trial court abused its discretion in denying its motion for new trial, arguing that the trial court’s judgment is contrary to the law and evidence, and that the trial court impermissibly weighed evidence and credibility, thereby depriving Archer Western of its right to a trial. Archer Western also [328]*328argues that a new trial should have been granted because of certain evidence attached to the motion for new trial that was not presented at the summary judgment proceeding.

“A trial court’s disposition of a motion for summary judgment is reviewed using the de novo standard of review ‘under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate.’” Citron v. Gentilly Carnival Club, Inc., 2014-1096, p. 12 (La.App. 4 Cir. 4/15/15), 165 So.3d 304, 313 (quoting D’Angelo v. Guarino, 2010-1555, p. 3 (La.App. 4 Cir. 3/9/12), 88 So.3d 683, 686). The reviewing court must therefore resolve two issues: (i) whether there is any genuine issue of material fact; and (ii) whether the mover is entitled to judgment as a matter of law. Id.; La. C.C.P. art. 966 A (3).

I ¿Where, as here, the party moving for summary judgment will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover is not required to negate all essential elements of the adverse party’s claim, but only to point out the absence of factual support for one or more elements essential to that claim. La. C.C.P. art. 966 C (2). Thereafter, to defeat summary judgment, the adverse part must “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial...” Id.1

In support of their motion for summary judgment, Ms. Maldonado and Imperial attached the petition, amended petition, correspondence between counsel for the plaintiffs and Ms. Maldonado and Imperial and excerpts from the depositions of the plaintiffs. Ms. Maldonado and Imperial contend that the deposition testimony of the plaintiffs unequivocally proves that Ms. Maldonado was free from fault in the accident.

Ms. Williams testified in her deposition that she did not see the excavation in the street until after the accident. She said the area was not well lit and that her mother, Ms. Maldonado, did nothing-to cause the accident. She said her mother was not speeding or driving recklessly.

Mr. Sykes testified in his deposition that the intersection where the accident occurred was “pretty dark.” He said Ms. Maldonado was driving very slowly, or as he phrased it, “stop and go.” He said there were construction signs on the ground across the street from where the accident occurred. He did not see the ^excavation in the street prior to the accident, and his opinion is that Ms. Maldonado could not have avoided the accident.

In its opposition to the motion for summary judgment, Archer Western attached excerpts of the depositions of its corporate representative, Adam Keckler, along with excerpts of the depositions of Ms. Maldonado and Mr. Sykes. Archer Western also attached traffic notes for the construction project and photographs of the construction site. The photographs show that the area under extensive construction included portions of the intersection where the accident occurred.

In his deposition, Mr. Keckler testified that work ended on the streetcar job site each day between 5:30 p.m. and 6:00 p.m.

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Bluebook (online)
203 So. 3d 325, 2016 La.App. 4 Cir. 0158, 2016 La. App. LEXIS 1815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-archer-western-construction-llc-lactapp-2016.