Jonathan A. James VS DHL Express (USA), Inc., Daniel E. Thoms and Scottsdale Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0581 JONATHAN A JAMES VERSUS DHL EXPRESS USA INC DANIEL E THOMS AND SCOTTSDALE INSURANCE COMPANY Judgment Rendered October 29 2010 On Appeal from the 19 Judicial District Court In and for the Parish of East Baton Rouge Docket No 558 774 Honorable Janice Clark Judge Presiding Counsel for PlaintiffAppellant L Richard Roy III Baton Rouge LA Jonathan A James Gracella Simmons Counsel for DefendantsAppellees DHL Express USA Inc and Scottsdale Insurance Company Collin J LeBlanc Baton Rouge LA BEFORE PARRO GUIDRY AND HUGHES JJ 7 Ca 71 6 cl HUGHES J This is an appeal from a summary judgment dismissing an action for personal injuries arising out of a vehicular accident For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On September 5 2006 at approximately 5 p Jonathan A James was 05 m operating his 2002 Harley Davidson motorcycle near the intersection of Siegen Lane and Industriplex Boulevard in Baton Rouge Louisiana when he was involved in a collision with a 2003 Ford E250 delivery van driven by Daniel E Thoms Immediately before the accident Mr James was attempting to maneuver his motorcycle from the driveway of a Shell station located on the western side of Siegen Lane across all seven lanes of travel on Siegen Lane to reach Siegen s northbound turn lane located on the eastern side of Siegen Lane in order to make a right turn onto Industriplex Boulevard Upon entering his turn into Siegen s Lane northbound turn lane Mr James motorcycle was broadsided by Mr Thoms delivery van Prior to the accident Mr Thoms had completed his day of deliveries for his employer DHL Express USA Inc DHL was returning to the office and had moved into Siegen Lane northbound turn lane in anticipation s of turning right onto Industriplex Boulevard As a result of the accident Mr James claims to have suffered both personal injuries and property damages On August 30 2007 Mr James filed suit for damages against Mr Thoms DHL and Scottsdale Insurance Company Scottsdale urging the fault of Mr Thoms in causing the accident Mr James also alleged that at the time of the accident Mr Thoms was acting in the course and scope of his employment with DHL who was therefore asserted to be vicariously liable for Mr Thoms negligence Also Scottsdale was alleged to have issued an insurance policy 2 naming DHL as an insured which provided liability coverage to both DHL and Mr Thoms All defendants filed answers in this suit denying the fault of Mr Thoms DHL and Scottsdale filed a motion for summary judgment contending that the accident in question was due solely to the fault of Mr James and that he was without any evidence that Mr Thoms had acted negligently or caused the accident Following a hearing on October 26 2009 the trial court granted DHL and s Scottsdale motion for summary judgment and dismissed Mr James suit as to those defendants judgment was signed on February 11 2010 Mr James has appealed this judgment contending that summary judgment was inappropriate in this case as issues of fact remain as to whether the following alleged actions of Mr Thoms were substantial factors in bringing about the accident whether Mr Thoms abruptly accelerated and abruptly entered into the turn lane just before or impact with the plaintiff whether Mr Thoms kept a proper lookout whether Mr Thoms was traveling at an excessive rate of speed for the conditions in violation of LSAR 32 whether Mr Thoms alleged negligence contributed to any S 64 A sudden emergency and whether Mr Thoms had the last clear chance to avoid the accident In support of the trial court judgment in their favor the defendantsappellees contend on appeal that Mr Thoms was lawfully operating his vehicle at the time of the accident while Mr James entered into a lane of travel that was occupied without giving fair notice and in violation of multiple Rules of the Road Mr Thoms answer was filed after summary judgment was rendered in favor of DHL and Scottsdale M LAW AND ANALYSIS Motion for Summary Judgment The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action except those disallowed by LSAC P C art 969 the procedure is favored and shall be construed to accomplish these ends LSA C art 966 Summary judgment shall be rendered in favor of the P 2 A mover if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law LSAC P C art 966 B Appellate courts review summary judgments de novo under the same criteria that govern a district court consideration of whether summary judgment is s appropriate Samaha v Rau 20071726 pp 3 4 La 2 977 So 880 08 26 2d 882 Allen v State ex rel Ernest N MorialNew Orleans Exhibition Hall Authority 20021072 p 5 La 4 842 So 373 377 Boudreaux v 03 9 2d Vankerkhove 20072555 p 5 La App 1 Cir 8 993 So 725 72930 08 11 2d In ruling on a motion for summary judgment the judge role is not to s evaluate the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact All doubts should be resolved in the non moving party favor Hines v Garrett 20040806 s p 1 La 6 876 So 764 765 04 25 2d A fact is material if it potentially insures or precludes recovery affects a s litigant ultimate success or determines the outcome of the legal dispute A genuine issue 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 Id 2004 0806 at p 1 876 So at 765 66 2d M On motion for summary judgment the burden of proof remains with the movant However if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense then the s non moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the opponent of the motion fails to do so there is no genuine issue of material fact and summary judgment will be granted See LSAC art 966 P C 2 C When a motion for summary judgment is made and supported as provided in LSAC art 967 an adverse party may not rest on the mere allegations or P C denials of his pleadings but his response by affidavits or as otherwise provided in LSAC art 967 must set forth specific facts showing that there is a genuine P C issue for trial If he does not so respond summary judgment if appropriate shall be rendered against him LSAC art 967 See also Board of Supervisors P C B of Louisiana State University v Louisiana Agricultural Finance Authority 20070107 p 9 La App 1 Cir 2 984 So 72 7980 Cressionnie v 08 8 2d Intrepid Inc 2003 1714 p 3 La App 1 Cir 5 879 So 736 738 04 14 2d Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Richard v Hall 2003 1488 p 5 La 04 23 4 874 So 131 137 Dyess v American National Property and 2d Casualty Company 2003 1971 p 4 La App 1 Cir 6 886 So 448 04 25 2d 451 writ denied 20041858 La 10 885 So 592 Cressionnie v 04 29 2d Intrepid Inc 2003 1714 at p 3 879 So at 738 39 2d Louisiana Traffic Regulations Louisiana Revised Statute 32 provides The driver of a vehicle about 124 to enter or cross a highway from a driveway shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard In interpreting this statute our courts have repeatedly held that a driver entering a highway from a private driveway has a primary or high duty to avoid a collision 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 apparent to a reasonably prudent person that such can be done in safety Wells v Allstate Insurance Company 510 So 763 767 La App 1 Cir writ denied 2d 514 So 463 La 1987 2d Conversely the driver on the favored street generally may rely on the assumption or presumption that those vehicles entering the roadway from less favored positions such as a private drive will not drive into the path of favored traffic and is not required to look out for or search in anticipation of careless drivers who might enter his right of way from a private driveway in violation of the statute See Battaglia v Texas Farmers Insurance Company 982607 p 3 La App 4 Cir 3 732 So 119 121 writ denied 99 1579 La 9 747 99 31 2d 99 17 2d So 564 Nevertheless a lawfully proceeding driver on the favored highway is under a duty of ordinary care to the intruding vehicle to avoid an impending accident only in those circumstances where speed control time and distance afford him a reasonable opportunity to do so the burden of proving those circumstances is upon the intruding driver See Silvio v Rogers 580 So 434 43637 La App 2 Cir 2d 1991 R Further we note that LSAR 32 provides in pertinent part S 79 Whenever any roadway has been divided into two or more clearly marked lanes for traffic a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety Application of Law to Facts In the instant case Mr James testified by deposition that the accident occurred on Tuesday September 5 2006 at approximately 5 p and that the 05 m preceding Monday was Labor Day Mr James admitted that over the Labor Day weekend he had consumed drugs and alcohol On the day of the accident Mr James further stated that he had driven his motorcycle to Siegen Lane accompanied by a passenger Alexandra Jimenez Mr James admitted that he dropped Ms Jimenez off at the Shell station because he was en route to meet a man on Honore Lane who was going to hook him up with drugs Mr James left the Shell station parking lot through the driveway exiting onto Siegen Lane and drove across the three southbound lanes leading toward I10 and the center turning lane which he said were free of traffic Then Mr James proceeded to navigate his motorcycle through the three northbound lanes leading toward Airline Highway which were jammed with bumper to bumper stopped traffic waiting to proceed through the traffic signal at Siegen intersection with s Industriplex Boulevard Mr James drove his motorcycle straight across the northbound lanes between the stopped cars He intended to pull into the outside turn lane turn left in that lane and proceed north about 100 to 150 feet to the Industriplex Boulevard intersection turn right onto Industriplex Boulevard and make another right onto a side street that connects to Honore Lane Mr James denied that he had intended to turn directly onto Honore Lane at its intersection with Siegen Lane because he said he would have had to cut across traffic at an N angle going the wrong way in the turn lane to get to the mouth of Honore Lane When Mr James began to enter the turn lane he did not see any vehicles in it but a split second before the accident he saw the van driven by Mr Thorns accelerating toward him Mr James believed the stopped traffic in the northbound lanes would have no trouble seeing him because his motorcycle was a big bright LSU purple Harley Mr Thorns testified in his deposition that before the accident he had exited I 10 onto Siegen Lane northbound and that as he approached the Industriplex Siegen intersection he moved into the easternmost or outside turn lane Mr Thorns further stated that Mr James motorcycle suddenly appeared in the turn lane emerging from between the stopped cars in the adjoining lanes and that by the time I saw him I was already on him and it was too late to do anything but slam on the brakes Mr Thorns stated that he could not previously see Mr James between the stopped cars because Mr James was reclined on his motorcycle which was low to the ground Further Mr Thorns stated that Mr James was looking straight forward and not checking for traffic Mr Thoms estimated that he was traveling about thirty miles per hour and that Mr James five was going between fifteen to twenty miles per hour at the time of the accident According to Mr Thorns the accident occurred near the intersection of Siegen Lane and Honore Lane Mr James denied that the accident took place directly in front of Honore Lane but was further down Having closely examined the evidence presented on motion for summary judgment we conclude that the defendants satisfied their burden to show that Mr Thorns was driving his vehicle in a lawful manner and did not contribute to the cause of the instant accident Rather the accident was caused solely by the actions of Mr James in proceeding across Siegen Lane through heavy traffic in violation of both LSAR 32 and LSAR 32 and in entering a turn lane from S 79 S 124 1 between stopped cars when a reasonably prudent person would have recognized that such a maneuver could not be done in safety Since the defendants established that there was an absence of factual support for one or more elements essential to the Mr James action i that Mr Thoms e was negligent it was then necessary in order for Mr James action to remain viable that he produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof at trial We cannot find that Mr James sustained this burden When Mr James was asked by counsel during his deposition if he had any idea the impact was going to occur before it happened Mr James responded by snapping his fingers Counsel then asked Mr James whether his response was a yes or a no Mr James indicated that the accident took place in a split second and further stated When I began my maneuver between the cars the turn lane was absolutely empty There was no one coming down the turn lane And in the time it took me to come out from behind that last car the truck was right there I mean literally right there Emma I mean I was lucky to have seen the vehicle a split second before impact And I started to get my leg up off the ground but t didn Mr James further acknowledged that there were h of cars in the three undreds northbound lanes that he traversed before entering the turn lane and that Siegen Lane is particularly busy during rush hour Mr James also testified that he saw Mr Thorns face through his windshield and that his face had a look of t fright Mr James testified that he did not error hear either Mr Thorns applying his brakes or his horn sounding he stated that Mr Thorns foot never came off the accelerator Mr James described the accident as a full on Tbone from the right side 0 We conclude that the testimony of Mr James only supports that of Mr Thoms The accident occurred in heavy rush hour traffic Mr James entered Mr Thoms lane of travel so suddenly that Mr Thoms had no time to react Mr Thoms was travelling lawfully Mr James was executing a hazardous maneuver in violation of highway safety regulations Thus we find Mr James failed to rebut the evidence presented by the defense that Mr Thoms was not negligent and did not cause the accident in question Accordingly we conclude that the trial court did not err in entering summary judgment in favor of the defendants CONCLUSION For the reasons assigned herein the summary judgment granted in favor of DHL Express USA Inc and Scottsdale Insurance Company is affirmed costs of this appeal are to be borne by the plaintiffappellant Jonathan A James AFFIRMED 10 All
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