James Thomas, Sr., Lucille Marie Landry, Jacob Allen Thomas, Chelsea Marie Landry, Lexie Lynn Landry and Jade Elaine Thomas VS State of Louisiana, Through the Department of Transportation and Development and Barriere Construction Company, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 1924 JAMES THOMAS SR LUCILLE MARIE LANDRY JACOB ALLEN THOMAS CHELSEA MARIE LANDRY LEXIE LYNN LANDRY AND JADE ELAINE THOMAS VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND BARRIERE CONSTRUCTION COMPANY L L C Judgment Rendered May 8 2009 Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket Number 100723 The Honorable F Hugh Proper Person James Thomas Sr LA Lucille Marie Gulfport Judge Presiding PlaintiffAppellant in James Thomas Sr Angie Larose Landry MS Thomas M Brahney New Orleans LA Plaintiff Appellee in Proper Lucille Marie Landry Person Counsel for Defendant State of Louisiana Transportation Appellee Department of Development David K Kervin Jr Counsel for Defendant Appellee Barriere Construction Company Stacie E Petersen L L C Gregory G Gremillion Gretna LA Paeton L Burkett Counsel for DefendantAppellee Baton State of Louisiana Rouge LA Public BEFORE CARTER C J Safety Department of Corrections WHIPPLE AND DOWNING JJ WHIPPLE J This is before matter judgment of the trial court us on appeal by plaintiff granting James Thomas summary judgment and against defendant Barriere Construction follow we Company Sr from a dismissing his claims LLC For the that reasons affirm FACTS AND PROCEDURAL HISTORY This 14 2004 litigation arises near from Sr was driving daughter passing through construction As a car a his vehicle Jade and direction with his a single accident that occurred on February Port Fourchon in Lafourche Parish James Thomas struck a approximately Louisiana over At the time of the accident due to analysis taken his at multiple landing upside down in Thomas content v While confined one to 27 4 La roadway body of water driving with to 07 was a suspended content subsequently convicted twenty years imprisonment App 1st Cir 6 9 06 at hard 938 So 2d 955 So 2d 683 the Lafourche Parish Detention Center February on against the State through the Department of Transportation and Development and Barriere Construction I Although After injuries year after the accident Thomas filed this lawsuit of Louisiana DOTD Thomas 24g was Thomas 2005 2210 La 168 writ denied 2006 2403 14 2005 southerly Notably the blood alcohol DWI arrests of vehicular homicide and sentenced See State was a m Terrebonne General Medical Center after the accident revealed that his blood alcohol labor a Jacob in the vehicle with him result of the accident Jade died and Jacob received license Hwy 1 in 8 30 p Thomas drove his vehicle off the area utility pole and rolled son on At a seeking damages in motion and order of appeal et al the was entered only party appearing by in this excess of one James Thomas Sr million on behalf is James Thomas Sr appeal plaintiff filed an appeal or made plaintiff attorney pro an appearance in the appeal Thus to the extent that the underlying judgment dismissed the plaintiffs claims the judgment of dismissal is final as to any claims of the other plaintiffs of James Thomas Sr se No other or on behalf of any other herein 2 Therein Thomas dollars alleged that coming toward him traveling north lines in the of the Thomas further right enter center the fishtail highway the to alleged that after to him to be on the double Once he did right and when he tried to regain control he hit highway transitioned to the roadway where the milled graded or original highway causing him to to re began bump a his to attempted his vehicle so was yellow take the shoulder the truck he passing the milled section on wheeler type truck eighteen appeared and highway causing end of the milled section of the the red a at to the section of lose control of his vehicle At the time of the accident Barriere Construction construction work on a portion of Louisiana Hwy occurred pursuant to contract 1 north of where the accident with the DOTD identified State as Pursuant to its contract with the DOTD Barriere 064 02 0026 materials a and and labor equipment Project was all work for State perform performing was No provide to Project No 064 02 0026 On October 9 contending there to judgment immunity as a were no matter statute justifiable no specifications sole of law pursuant cause created to the reason a to design plans and was the was was not at judgment entitled was contractor fault in any way in roadway in question of its 2 causing its work and contract to the s 3 plans and Instead Barriere contended the Thomas intoxication judgment and alternative that he S 9 2771 the believe that its adherence On November 13 2007 Thomas filed contending motion for summary specifications hazardous condition of the accident for summary a to LSA R argued that it it did not l performed according it had Barriere filed genuine issues of material fact and that it Barriere the accident because was 2007 entitled to an cross judgment as 3 opposition to Barriere motion for summary a matter s motion judgment of law pursuant to LSA C C art 2769 the speed 2 Therein Thomas contended that Barriere limit contributed to where the construction near of Louisiana Standard to m for Roads and Specifications in construction a according which limit be reduced by 10 zone By judgment dated December judgment c degraded the condition of the original On November 30 2007 the trial for summary being performed were Bridges existing speed where maintenance work has roadway reduce to support Thomas cited Section 713 04 recommends that the pre Thomas p h In the accident herein repairs failure s court heard argument on both motions 18 2007 the trial court denied Barriere and Thomas finding that a factual issue remained as motion for summary cross to whether the motion s judgment posted speed limit should have been reduced On 19 February Barriere 2008 re urged its motion for summary judgment and presented additional evidence in support of the motion urged motion of the hearing the trial and ruled as was argued before trial court court granted on Barriere motion for summary judgment follows Barriere affidavits met their threshold burden through deposition testimony and the exhibits the proof it is clearly shown testing that was performed that your intoxication precipitating factor in the cause resulted in the death of your borne in the criminal trial 2Louisiana If of the accident that shall be liable in compliance manner damages of daughter as And of course for the losses that may 4 a that was follows and at the time he has with his contract was ultimately undertaker fails to do the work he has contracted to do does not execute it in the use the other time of the accident Civil Code article 2769 provides an the from both the accident report and the on the roadway following the accident at the re At the conclusion June 17 2008 s The agreed ensue or if he to do it from his he non The affidavits the evidence clearly shows that Barriere met presented the standards obligations with the State of posted those signs that were necessary to as the Court required under the Louisiana contractual and today That according they the to affidavit of the trooper there was nothing in the construction area that affected your driving There were no skid marks there were yaw marks showing sideways down the road no as you indicated There was no supports your theory of what occurred The affidavit of Ms frequently at D on that you were going physical evidence that that date indicates that Angelo not was three times per result in the degradation the construction site I believe week and that the road site itself did she two or roadway to such an extent as would require under the highway standards the placement of any additional warning signs of the Based upon evidentiary the presentation the today arguments of both parties and the very voluminous record which at this point consists of several thousand pages and the Court has had with this matter Im at this time going history the to grant the motion for summary judgment finding that Barriere has proven that there are no material issues of fact and they are entitled to summary judgment pursuant to Article 966 of the Code of Civil Procedure On June 27 summary 2008 the trial court judgment in favor of Barriere signed a Construction written Thomas judgment granting judgment Upon examining the record however this Court noted defect in the appeal in that the judgment signed on cause as to why the appeal should response to the show signed a cause Amended an order show or by Judgment cause should order not this Court an the claims of plaintiffs allowing the parties be dismissed for these on apparent June 27 2008 did not contain appropriate decretal language disposing of or dismissing Accordingly this Court issued from this appealed January to show reasons In 5 2009 the trial court containing appropriate decretal language dismissing plaintiffs claims against Barriere Construction and further designating the judgment 1915 this as a final Accordingly appeal was on appealable judgment January in accordance with LSA C C P 15 2009 the show maintained 5 cause order was art recalled and On Thomas contends that the trial appeal motion for summary judgment and in alleged bump standards in the highway caused during construction was a court erred in granting Barriere that Thomas finding by Barriere s failure intoxication to meet factor in precipitating s the not the applicable causing the accident herein DISCUSSION A motion for summary full scale trial when there is only file if the judgment procedural a mover is entitled to judgment as a 966 B The burden of proof remains with the will not bear the burden of him to movant more need only show that there is elements essential to produce to the adverse party LSA C C P criteria that govern the trial Granda appropriate App potentially 1 st Cir insure determine the v of law LSA C C P matter s if the burden does claim st court s to v not Rather the substantive law that determines one or no genuine issue of 915 So 2d 892 894 judgments de novo under the same consideration of whether summary judgment 935 So 2d 698 a require The American Citadel State Farm Mutual Insurance of movant establish that he will be able Asberry Cir 5 6105 art Thereafter if the adverse trial there is at 2 summary preclude outcome 1 App 1 2 0106 or 966 C art courts review Appellate La issue of material movant However factual support sufficient 2004 0929 La Guard Inc s on genuine no movant a granted absence of factual support for an satisfy his evidentiary burden of proof material fact is trial the avoid and admissions negate all essential elements of the adverse party s claim party fails to proof at to It should be interrogatories to answers with any affidavits show that there is together device used genuine factual dispute no pleadings depositions fact and that is recovery 701 Material facts affect the legal dispute 6 litigant s Because materiality whether or 2004 2012 Company are success it is the not a those that or applicable particular fact in dispute is material the Gomon case be can only in light of the substantive law applicable seen 2d 982 984 writ denied 2007 1567 La or Non entitled deterioration of work 3 28 07 960 So 963 So 2d 1005 07 14 9 Louisiana Revised Statute 9 2771 for destruction App 1st Cir Melancon 2006 2444 La v to of liability provides immunity for contractor contractors as follows No contractor contractor building for destruction constructed or the destruction limited not to defined in R S 37 2150 1 9 deterioration of which he did not make deterioration insufficiency of the plans or shall be liable or or cause defect or residential in any work him if he constructed or is by according to plans work a defects or under construction to him furnished as or the constructing but including was due This specifications specifications to be made and if to any fault provision or shall apply regardless of whether the destruction deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or The after acceptance of the work by the owner of this Section shall not be subject to waiver by the to prior provisions or contractor The and specifications 1134 La a duty of a duty to 1 App st exercise is contractor of the ordinary care and refrain from La contractor is not 1 drawn specifications it is entitled rests with Bank and Trust third parties creating hazardous conditions in v Lafourche Recreation 822 So 2d 716 721 Cir 6 2102 the guarantor to deficient and the persons owes writ 827 So 2d 1156 of the sufficiency of plans and immunity under LSA Lafourche Recreation District No 5 are contractor by another and if it complies with those plans and specifications specifications st a plans Heard 428 So 2d 1132 v Morgan obligations App denied 2002 1980 La 10 25 02 A however Generally the fulfillment of its contractual District No 5 2001 1191 build the thing in accordance with the City of Covington owner Cir 1983 to injury preparing such 822 So 2d at RS 721 9 2771 Where the results the fault for any plans and Company of Golden Meadow 7 specifications 316 So Morgan 2d 826 plans v and resulting injuries Ortego 828 La v State App 1 st Cir writ denied 320 So 2d 914 the liability hazardous La that it had justifiable no plans and specifications created 9 2771 judgment herein summary evidence s satisfy elements Morgan v Lafourche Recreation District No Thomas contends that the basis of Barriere of the portion the warn speed of an highway limit near in the transitions the Thus Barriere required to be afforded the DOTD that the the highway to reason to where the roadway graded or milled to reduce believe that its adherence was to not hazardous the plans and repairs were under LSA R S with the plans or to surface and original highway complied LSA R S 5 822 So 2d at 722 alleged bump transitioning original highway Lafourche v liability herein is its failure immunity herein to prove that it designed by the to the these essential proving the stretch of highway where construction performed was alleged bump s to not if Barriere introduced its burden of undisputed adequately was has the burden contractor proper sufficient to Morgan immunity defense under only was avoid to believe that its adherence Since the at 721 the elements of the contractor proving to reason hazardous condition a Recreation District No 5 822 So 2d of Nonetheless in order either that the condition created contractor must prove or 1975 and the being 9 2771 specifications graded that it had specifications no area of justifiable created such a hazardous condition In support of its motion for summary judgment Barriere presented affidavit of Dawn Lewis D Angelo Barriere Construction s 1 Project Manager the 2 the State Police Accident Report prepared by investigating officer Trooper Donald R Callais Jr Accident Reconstruction of Thomas 3 an conviction for vehicular homicide Acceptance of State Project petition re urged and 7 a statement No 064 02 0026 6 5 a Report the copy of 4 a certified copy certificate of Final plaintiffs amended of seven uncontested issues of fact In support of its motion for summary judgment Barriere additionally presented the 8 affidavit D of Angelo and Ms D to provide Trooper Blanchard a statement a setting forth twenty three uncontested Angelo testified that Barriere entered into all materials No to entitled She further attested that she week and personally done under the contract from the DOTD s plans personal knowledge were that the at was perform the job site 1 the DOTD and that Barriere worked prepared by without deviation Ms D attested that she had Angelo of the road construction in the area of the accident original highway degraded reduction in the the condition of the limit pursuant posted speed for Roads and Bridges Standard Specifications that at time did the DOTD the engineer a no reduction in the posted speed limit due to to or cause at the time any obstruction in the traffic a three times a plans and specifications for the work not had it including Embankment two to of the accident and that the construction did nor 3 the DOTD all work La Lewis issues of fact contract with and labor and Stabilization aware a 064 02 0026 equipment laying of asphalt for Project was of Dawn affidavit supplemental so as to require Section 713 of the Louisiana Ms D further attested Angelo the plans and specifications construction in the area call for of the accident herein In order to further establish specifications 064 02 0026 compliance with the Barriere introduced the DOTD which certified that the final Barriere Construction under the contract was were Thomas failed show that Barriere to made on May Final s inspection 24 2004 contract plans Acceptance of Project of all work and that all and No performed by phases of work satisfactorily completed produce designed any evidence to controvert these statements or created the or to plans and specifications for the 3With regard to the statements of uncontested facts filed by Barriere in support of its original and re urged motions for summary judgment we pretermit discussion of their evidentiary value if any and whether these statements comply with Rule 9 10 of the Rules for Louisiana District Courts as there is nothing in the record before us to indicate that the trial court considered or relied upon them in making its ruling 9 construction of the Thomas failed or to questions remain and of the accident herein scene to in opposition Barriere Accordingly s to Barriere for the specifications showing s proof of compliance with the find we no issues of genuine the record establishes that Barriere did as Further not prepare and that Barriere design of the roadway the complied plans and specifications provided by the DOTD with the With reference and as plans and specifications s material fact remain plans the near required showing make the that any factual DOTD roadway specifications created prepared by Trooper highway claim that Barriere to Thomas a hazardous condition Callais shows that the where the accident occurred sign posted on was 55 we s compliance with plans that the accident report note limit in the stretch of posted speed mp the h and that there Bump was a the southbound shoulder of the highway in the milled section The report also reflects that despite this posted limit immediately following the accident Thomas mp h reported to Trooper Callais that he was traveling at a rate of 65 Trooper Callais further documented the when the accident occurred roadway conditions therein stating that the milled section just north of the crash site has no great changes on each approach and does not Notably Trooper Callais documented that crash in the accident and that there suspected beverage emitting from Thomas of the accident of the 65 h In doing milled section is not The affidavit called be a alcohol involvement is In connection with his a test traveling run factor in the an alcoholic investigation over the portion roadway where the milled section transitioned to the non milled roadway mp Police to strong smell of was a breath Trooper Callais performed seem was to so believed to be testimony also offered investigate Trooper Callais noted by a no adverse controllability at the factor in this crash of Lt Richard Blanchard of the Louisiana State Barriere the accident at Trooper Blanchard testified that he issue herein 10 He was tendered and was accepted by the trial criminal court proceedings testify therein on 93 foot milled or found tapered made was the a to expert in the field of accident reconstruction in Thomas as an the charges on behalf of the at area at the roadway and that there abruptly left the that Thomas a of re in the He attested that the specifically testified that there entry when leaving the milled Trooper Blanchard Moreover to vehicle Thomas braking by hitting a utility pole Trooper or s area area to of the area vehicle investigation tapered taper were no evidence whatsoever that Thomas no and vicinity of the accident vehicle left the roadway 115 feet past the prior called to smooth transition from the milled Blanchard was roadway another 103 feet of provide point was Trooper Blanchard physically walked the state the end of the milled section and did provide bumps from this accident and graded section of the highway existing roadway Trooper abrupt resulting revealed and traveled Blanchard found no signs any evidence whatsoever that Thomas was trying to avoid or evade something in the roadway In the roadway seven course in the tests at area of his investigation Trooper Blanchard also drove of the milled section and before the milled section various speeds of 55 Blanchard testified that in the problems negotiating his investigation Thomas vehicle road fallen or the of the accident was asleep investigation Trooper factors contributing 2 was to at caused tests m and 75 p h he conducted mp the conducting h Trooper he encountered no roadway After completing Trooper Blanchard determined that the travel of someone was the crash roadway 1 who had straightened Importantly through the the wheel Blanchard 65 this section of the consistent with the condition of the construction multiple turn over h mp over able the to rule speed at out the following factors which Thomas was Instead the results of his investigation revealed by Thomas grossly intoxicated condition 11 at the of his course placement of road signs and 3 out as traveling 4 road that the accident the time of the accident On review we details and facts note that Trooper Blanchard s findings forth in the accident report prepared set Barriere also presented an consistent with the were by Trooper Callais accident reconstruction report prepared by Trooper Kevin Marcel and Sgt Darrin Naquin with the Reconstruction Office State Police Attributing the accident C Troop night of the accident Thomas intoxication to Mr on at the the reconstruction report noted As he entered the left banking curve on LA he was unable to negotiate the curve Once off the roadway on the grassy shoulder he attempted to regain control but to no avail The vehicle struck a large utility pole and rotated counter clockwise before rolling into the canal The front seat passenger drowned as a result of the crash The cause of the crash was driver condition intoxication The report further noted that construction and accordingly and were photographs the trial were posted of the roadway in showing made by Barriere Thomas relies affidavits of question family members and testimony ofSgt Richard Blanchard from Thomas criminal proceedings Although Thomas containing to signs of the right size In response to the evidence and upon Bump presented photographs Thomas failed to produce any expert bump a otherwise establish that the testimony Moreover the proceedings where which allegedly show the roadway of bump Trooper Trooper Blanchard accident reconstruction was was was or Blanchard consistent with Trooper findings submitted by Barriere On review set forth Thomas countered the showing a we s note in Ms D evidence criminal Thomas court Blanchard that or hazardous condition from accepted by the the by created testimony area none Angelo as an s expert in affidavit and of the evidence testimony that the s roadway work had not degraded the condition of the original roadway such that it warranted a reduction in the Louisiana Standard posted speed Specifications limit pursuant for Roads and Bridges to Section 713 of the or Sgt Blanchard testimony regarding his investigation and testing which established 12 that s speed was not contributing a factor to forth any evidence whatsoever reduced provided above motion for summary a above denials of his show that the failure or pleading but his forth trial If he does if not is made judgment adverse party may an must set judgment establish to Thomas has failed sum to to set post a limit had any causal connection with the accident herein speed When In the accident not rest by affidavits response supported as mere the on and allegations or specific facts showing that there is so respond or fails to make the shall be rendered appropriate otherwise or as a genuine issue for required showing summary LSA C C P him against provided art 967 B Considering the record before the bump justifiable was reason not to a us find Barriere we hazardous condition believe nor sufficiently proved that and further that Barriere had does the record show that its adherence to no and compliance with the plans and specifications designed by the DOTD created hazardous condition Thus the record establishes that Barriere is entitled immunity provided in LSA evidence to rebut this RS showing 9 2771 Inasmuch summary judgment as was Thomas failed the to to a offer appropriate herein CONCLUSION Overall in response to Barriere any evidence to show that Barriere Barriere did DOTD not fully comply s showing Thomas has failed with the Acceptance issued to Barriere by the remaining as issue herein and Barriere provided by the DOTD rebut Barriere s produce designed the plans and specifications plans Considering the testimony of Ms material fact to D DOTD Barriere did not and showing that the that specifications designed by the Angelo and the certificate of Final we find there is design completed the project Moreover or any in full portion 13 was genuine of the compliance Thomas has failed bump no not to a issue of roadway with the plans present evidence hazardous at to condition warranting a to the contributing on reduction in the this issue as crash herein well Absent hazardous condition adherence Barriere to was posted speed limit or the DOTD entitled a Thus we plans no and to judgment a specifications in its favor as a of the trial the plaintiff appellant court is affirmed matter AFFIRMED 14 was even a roadway created reason to a factor issue of fact remains in the created a believe that its hazardous condition of law reasons Costs of this James Thomas Sr speed genuine justifiable Accordingly for the above and foregoing judgment that showing that the bump that Barriere had s find or appeal the January are 5 assessed 2009 against
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