Sandra Mouton Woodard, Keith Mouton and Michael Chad Mouton, The Surviving Children of John Mouton and Virlee Mouton, Individually and The Surviving Spouse of John Mouton and as Executrix of the Estate of John Mouton VS Baton Rouge Marine Institute, Inc., Albert Champion and The Hartford Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 0190 SANDRA WOODARD ET AL VERSUS THE HARTFORD INSURANCE COMPANY AND BATON ROUGE MARINE INSTITUTE INC DATE OF JUDGMENT SEP 14 2011 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 548 DIV E SEC 23 PARISH OF EAST BATON ROUGE 012 STATE OF LOUISIANA HONORABLE WILLIAM A MORVANT JUDGE Thomas E Gibbs Counsel for Plaintiffs Appellants Baton Rouge Louisiana Sandra Woodard Keith Mouton and Michael Chad Mouton M A Tony Clayton Counsel for Plaintiff Appellant Michael P Fruge Port Allen Louisiana Virlee Mouton Martin E Golden Counsel for Defendants Appellees Baton Rouge Louisiana Baton Rouge Marine Institute Inc and Hartford Insurance Company David T Butler Jr Counsel for IntervenorAppellant Baton Rouge Louisiana Lemic Insurance Company BEFORE WHIPPLE KUHN AND GUIDRY JJ l Disposition REVERSED KUHN J Plaintiffs appellants Sandra Mouton Woodard Keith Mouton and Michael Chad Mouton and their mother Virlee Mouton individually and as executrix of the estate of her deceased husband John Mouton appeal the trial court judgment s dismissing via summary judgment their claims for damages as a result of the fatal injuries John sustained when he was struck by a bus driven by defendant Albert Champion while Mr Champion was in the course and scope of his employment with defendant appellee Baton Rouge Marine Institute BRMI Finding outstanding issues of material fact remain which preclude the grant of summary judgment we reverse FACTUAL AND PROCEDURAL BACKGROUND The following facts established through deposition testimony are undisputed On October 10 2005 Mr John Mouton was finishing cement work in the parking lot of his business PBC Industrial Supplies Inc PBC Industrial along the curb adjacent to the north side of South Choctaw Drive in Baton Rouge The cement had been busted around a utility pole which was situated two feet from the edge of the roadway to repair a water leak underneath the concrete PBC Industrial employee Stephen Bradley St Romaine assisted Mr Mouton with the project With but about a yard of ground finished to repair Mr St Romaine took a flatbed truck to pick up the final load of cement from Waskey Bridges a business located down the street While he was gone sometime around the noon hour Mr Champion was driving a short bus in a westerly direction in the northernmost travel lane of South Choctaw Drive immediately adjacent to the curb where Mr Mouton was working On the bus one passenger a BRMI student was sleeping 0 Mr Mouton was struck in the face by the righthand rearview mirror which extended outward from the bus There were no eyewitnesses to the accident Mr Champion stated that he did not see Mr Mouton until after he heard a thump and looking in his right rearview mirror he saw a man falling toward the sidewalk He stopped the bus and returned to the accident site Mr Mouton was pronounced dead shortly after impact The surviving wife and children of Mr Mouton collectively the Moutons filed this lawsuit averring entitlement to damages as a result of Mr Champion s alleged negligence naming as defendants Mr Champion employer BRMI and its s liability insurer Hartford Insurance Company Hartford Lemic Insurance Company the workers compensation insurer for PBC Industrial intervened in the lawsuit seeking reimbursement for payments it made on behalf of Mr Mouton After answering the lawsuit BRMI and Hartford moved for summary judgment The trial court granted the motion and dismissed both the Moutons and Lemic Insurance Company claims for relief This appeal followed s DISCUSSION Summary judgment is subject to de novo review on appeal using the same standards applicable to the trial court determination s Performance Physical Therapy of the issues Peak Fitness LLC a Hibernia Corp 20072206 p 5 La App I st Cir 6 992 So 527 530 writ denied 20081478 La 08 2d 08 3 10 992 So 1018 The mover has the burden of proof that it is entitled to 2d summary judgment If the mover will not bear the burden of proof at trial on the 1 Lemic Insurance Company timely filed a brief with this court joining the appeal of the Moutons and relying on their assignments of error 3 subject matter of the motion it need only demonstrate the absence of factual support for one or more essential elements of its opponent claim action or s defense If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense s then the nonmoving party must produce factual support sufficient to satisfy their evidentiary burden at trial See La C art 966C If the mover has put forth P 2 supporting proof through affidavits or otherwise the adverse party may not rest on the mere allegations or denials of their pleading but their response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial La C art 967 P B Ln determining whether summary judgment is appropriate we ask the same questions as the trial court whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law Barrow v Brownell 2005 1627 p 5 La App 1st Cir 6 938 So 118 121 06 9 2d A genuine issue is a triable issue More precisely an issue is genuine if reasonable persons could disagree If on the state of the evidence reasonable persons could reach only one conclusion there is no need for a trial on that issue Summary judgment is the means for disposing of such disputes In determining whether an issue is genuine courts cannot consider the merits make credibility determinations evaluate testimony or weigh evidence Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact Smith v Our Lady of the Lake Hosp Inc 1993 2512 p 27 La 94 5 7 639 So 730 751 2d M A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery Facts are material if they potentially insure or preclude recovery affect a litigant ultimate success or s determine the outcome of the legal dispute Simply put a material fact is one that would matter on the trial on the merits Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits Id Because it is the applicable 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 Webb v Parish of St Tammany 20060849 p 3 La App 1st Cir 2 959 So 07 9 2d 921 923 writ denied 20070521 La 4 955 So 695 07 27 2d Under La C art 2315 liability for damages is founded upon fault Whether or not fault exists depends upon the facts and circumstances presented in each particular case A common sense test is to be applied in determining the question of fault The test is how would a reasonably prudent person have acted or what precautions would he have taken if faced with similar circumstances and conditions The degree of care to be exercised must always be commensurate with the foreseeable dangers confronting the alleged wrongdoer Cusimano v Wal Mart Stores Inc 20040248 p 3 La App 1st Cir 2 906 So 484 486 05 11 2d Louisiana courts have adopted a dutyrisk analysis in determining whether to impose liability under the general negligence principles of La C art 2315 For liability to attach under a dutyrisk analysis a plaintiff must prove five separate elements 1 whether the defendant had a duty to conform his conduct to a specific standard the duty element 2 whether the defendant conduct failed to conform s E to the appropriate standard the breach element 3 whether the defendant s substandard conduct was a causeinfact of the plaintiffs injuries the causein fact element 4 whether the defendant substandard conduct was a legal cause of the s plaintiffs injuries the scope of protection element and 5 whether the plaintiff was damaged the damages element Cusimano 20040248 at pp 3 4 906 So 2d at 486 87 A negative answer to any of the inquiries of the dutyrisk analysis results in a determination of no liability Id 20040248 at p 4 906 So at 487 2d It is axiomatic that drivers are required to exercise due care to avoid colliding with pedestrians upon the road Motorists are charged with the duty to see what an ordinarily prudent driver should have seen and avoid striking pedestrians in the road See La R 32 Thus Mr Champion had a duty to see what an ordinary S 214 prudent driver should have seen and avoid striking Mr Mouton The Moutons contend the trial court erred in dismissing their claims because outstanding issues of material fact exist as to whether Mr Champion breached the duty he owed to pedestrian Mr Mouton who was either in the roadway or close to it at the time he was struck Specifically the Moutons aver that they have produced factual support sufficient to establish that they will be able to satisfy their evidentiary burden on the material issue of whether Mr Champion saw or should have seen Mr Mouton as he proceeded westward on South Choctaw Drive Thus the Moutons assert the trial court erred in granting summary judgment on this basis 2 S R 214 La 32 provides Notwithstanding the foregoing provisions of this Part every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway 6 In support of summary judgment relevant to disposition of this issue defendants BRMI and Hartford placed into evidence the deposition testimony of Mr Champion Baton Rouge Police Department Corporal James Pittman and Mr Gene Ducote who was on the roadway traveling in a vehicle immediately behind Mr Champion The testimony of several experts and excerpts of deposition testimony of people present in close temporal proximity to the accident were also admitted into evidence by these defendants Corporal Pittman testified that he investigated the accident Among other things he took a statement from Mr Champion Based on his investigation Corporal Pittman opined that Mr Mouton was standing and moving possibly before he squatted down to work with a trowel smoothing the cement Mr Mouton looked to see if any traffic was coming instead of looking before he moved and when he looked he was struck in the face with the bus Corporal Pittman testified that there was nothing to impede Mr Champion view of anything in front of him and s indicated that Mr Champion could have swerved as evasive action But ultimately Corporal Pittman concluded that Mr Champion bus was so close when Mr s Mouton moved he could not have done anything to avoid the accident In conjunction with his investigation Corporal Pittman took a written statement from Mr Champion That statement was entered into evidence by the Moutons According to Mr Champion Victim was standing in street working on putting cement in area where a light pole Sic Individual stepped into mirror area of bus I stopped approximately 100125 feet after hearing impact I stopped bus and ran to check on individual shortly after accident 7 State police pulled up to scene In his deposition testimony Mr Champion explained that he was driving a familiar route That He routinely picked up students and drove them to BRMI morning after having picked up six or seven students he was notified that one student had been overlooked Mr Champion returned to the student pickup spot s on O Lane and then turned onto South Choctaw Drive The posted speed limit Neal was 45 MPH but he estimated he was travelling about 35 MPH The student on the bus had fallen asleep The bus did not have a radio and Mr Champion was not otherwise distracted by talking on a cell phone smoking or eating that he was focusing on the road He stated When he turned the corner off of O Lane Neal onto South Choctaw he spotted Mr Mouton along the roadway behind a utility pole which was approximately onethird of a mile down the road according to expert testimony Mr Champion proceeded to drive through an scurve He explained that he had been trained to look down the road a considerable amount to determine which traffic was coming He testified that as he entered into the s curve he saw the man who had a shovel which he placed on the side of the utility pole Mr Champion stated that the man was working on cement in the area where the pole was located When the bus came out of the scurve Mr Champion did not see the man anymore The road straightened out for a stretch and then he heard a thump He proceeded down the roadway looking in his right rearview mirror and saw for the first time that the man had fallen backward toward the sidewalk Mr Champion then brought the bus to a complete stop According to his deposition testimony there were no vehicles in front of Mr Champion as he drove the bus but there were some behind him He was in the outside lane where the roadway was closest to the curb on the north side of the 8 street travelling west A vehicle was located in the inside lane to his left it was not directly alongside him but was close enough that Mr Champion did not believe he could move into the left lane of travel When asked about his comment in his written statement Victim was standing in street working on putting cement in area where a light pole sic Mr Champion explained that he was referring to when he first saw Mr Mouton as he turned into the scurve He also clarified his comment Individual stepped into mirror area of bus was not because he saw Mr Mouton step into the mirror but rather he assumed that based on his survey of the accident site after he stopped the bus He explained that he d that after I surveyed the scene by realizing etermined that if I would have gone behind the pole to hit him I would have ran over the wet cement where he was and I would have hit the pole also Mr Ducote testified that although he did not see the accident happen he was positioned in his vehicle directly behind the bus When Mr Ducote saw the bus apply its brakes he drove around the bus moving to his left southward and into the inside lane of travel After he turned into a nearby grocery store he looked back and saw Mr Mouton lying in the driveway on his back Mr Ducote recalled that traffic was as usual noting that South Choctaw Drive is a welltravelled roadway He did not think that the bus was speeding and he indicated that until the driver applied his brakes he had maintained the bus in the center of the travel lane as he drove ahead of Mr Ducote vehicle s In response to the showing made by BRMI and Hartford the Moutons offered Mr Champion written statement Additionally experts Michael S Gillen Olin s Dart and Ric D Robinette whose depositions had been submitted by these I defendants each testified among other things that there were no explanations why Mr Champion could not have seen Mr Mouton as he proceeded in a westerly direction down the roadway Mr Gillen speculated that perhaps Mr Mouton got lost in the pole itself Mr Gillen and Mr Robinette both discredited Mr s Champion comments about having seen Mr Mouton as he entered into the s curve noting that as he travelled west the section of road is essentially straight with an unlimited sight line an observation with which Mr Dart also agreed Mr Gillen suggested that parked cars and other visual clutter were the only impediments to seeing Mr Mouton along the roadway as he worked near the utility pole In granting summary judgment the trial judge stated in his oral reasons for judgment y M initial inclination was that there were genuine issues of material fact Probably the sole one that bothered me was what I perceived to be the inconsistency between Mr Champion statement at the time of s the accident and his subsequent testimony at the deposition And I look through his deposition testimony and Mr Champion explains what he did when he wrote that statement He never saw him in the road that he deduced because of the fact that he wasn in the t street he heard this thump and sort of started from where he stopped and working backwards the only plausible explanation he could have if I since my bus is still in a straight line with the mirror extended would have hit him where I saw him I would have had to go through the telephone pole and the cement because he was on the back side of that telephone pole I simply come to the conclusion he must have walked into the road And I go back and I look at that and then I pull the actual statement I don see when I read Mr Champion t s deposition in light of what written in the statement that there is a s contradiction 11 A of the proverbial cards are on the table I not called upon to m make a credibility call I not having to weigh one witness view of m s the accident versus another because we don have any witnesses other t than Mr Champion 1101 A trier of fact is free to believe in whole or part the testimony of any witness See Scoggins v Frederick 1998 1814 p 15 La 1st Cir 9 744 So App 99 24 2d 1 676 687 writ denied 19993557 La 3 756 So 1141 Thus the trier of 00 17 2d fact can believe that when Mr Champion wrote in his statement Victim was standing in street working on putting cement in area where a light pole sic Individual stepped into mirror area of bus he did indeed see Mr Mouton and failed to take evasive action or otherwise attempt to avoid the accident All of the experts agree that there was no obstruction to Mr Champion vision s We note without finding that the ultimate trier of fact may disregard a testimonial explanation offered by Mr Champion at the trial and conclude that he saw or should have seen Mr Mouton Clearly the trial court concluded that the explanation Mr Champion provided in his deposition was more credible than that which he offered in his written statement Because a court cannot make credibility determinations in ruling on a motion for summary judgment it was error by the trial court to do so in its dismissal of the Moutons claims Because reasonable persons could disagree about whether Mr Champion saw Mr Mouton based on a literal reading of his written statement or did not see him based on his testimonial evidence adduced at trial the issue of whether Mr Champion breached the duty he owed Mr Mouton to see him and avoid colliding with him is a genuine issue of fact And the fact is material because the trier of s fact conclusion of whether Mr Champion saw Mr Mouton potentially permits or precludes recovery of damages by the Moutons Mindful that any doubt as to a dispute must be resolved in favor of a trial on the merits we conclude that there exists a genuine issue of material fact as to whether Mr Champion breached the 11 duty he owed Mr Mouton to see him and to avoid colliding with him regardless of whether Mr Mouton was in the roadway or near the edge of it See La R 32 S 214 Accordingly the trial court erred in dismissing the Mouton claims on this basis s The Moutons also contend that an outstanding issue of material fact exists as to whether one or more traffic cones were placed in the roadway adjacent to South Choctaw Drive that should have alerted Mr Champion to Mr Mouton presence s which also precludes summary judgment on the breach element of their claims The unanimous expert testimony was that if a cone had been in the north lane of travel near Mr Mouton work site at the time Mr Champion was proceeding in a s westward direction on South Choctaw Drive it would have served as an additional alerting device and provided additional notice to Mr Champion to be aware of what was around the cone The testimony of both Mr Gillen and Mr Robinette suggested that the cones found after the accident were not in conformity with industry standards insofar as appropriately advising drivers that there was work being performed on or near the roadway Mr Chris Scherer who was an employee of CW Custom Cabinets and Millwork located in premises across from the accident site south of South Choctaw Drive testified in his deposition that he recalled the presence of at least one cone in the roadway in the northern most lane of travel close to the work site Mr Scherer explained that he had sat outside his work premises eating his lunch and had seen Mr Mouton across the street working on the concrete project until about two minutes before the accident work He went inside his building and clocked back into He did not see the accident happen because he was clocking in at the time 12 but he heard what sounded like a mild boom and then the screeching of tires He went outside and was the first person to reach Mr Mouton after the impact Based on Mr Scherer testimony as well as that of Mr St Romaine and s PBC Industrial coowner Mr Karl Weber both of whose entire depositions were introduced into evidence by the Moutons in response to the showing made by the defendants a trier of fact could infer that at least one cone was present at the time of the accident Mr St Romaine testified that earlier that morning either he or his assistant had placed two cones taken from PBC Industrial inventory in the center s of the northern lane of travel near the work site in a location intended to alert most drivers to Mr Mouton presence Mr Weber confirmed having seen the cones in s the roadway earlier that day as well He testified that he had left the PBC Industrial premises shortly before the accident and upon his return five to ten minutes later he saw one of the cones on the other side of the road smashed up Mr St Romaine described that when he returned after obtaining the last of the concrete from Waskey Bridges an ambulance was already present Mr St Romaine claimed that he had picked up both cones after the police had left the scene One cone located in the PBC Industrial parking lot was 2025 feet beyond the place where Mr Mouton s body landed after impact That cone had black marks on it leading Mr St Romaine to believe that it had been involved in the accident He eventually turned that cone over to counsel and returned the other one to PBC Industrial inventory because he s did not believe it had any evidentiary value While Mr Champion testified at his deposition that he did not see any cones in the roadway and Mr Ducote also stated that he did not see any cones or traffic diverting to avoid anything that may have been in the roadway a trier of fact could 13 credit the testimony of Mr Scherer Mr St Romaine and Mr Weber and arrive at a factual predicate from which to infer that Mr Champion saw or should have seen a cone in the roadway See La C art 302 In light of the expert testimony that E 4 the presence of a cone in the roadway should have further alerted Mr Champion to be aware of what was around him as he drove his bus westward on South Choctaw Drive another genuine issue of material fact exists as to whether Mr Champion breached his duty to see Mr Mouton and avoid colliding with him We expressly note that we are not holding that the trier of fact must assess 100 of the fault on either Mr Champion or Mr Mouton A pedestrian must exercise reasonable care to avoid leaving a curb and walking into the path of a vehicle See La R 32 Thus just as Mr Champion owed Mr Mouton a S 212 B duty Mr Mouton had the duty to act with reasonable care in performing his roadside work duties It is for the trier of fact to allocate the appropriate fault to each party See La C art 2323 permitting allocation of fault see also Watson v State Farm Fire and Cas Ins Co 469 So 967 972 73 La 1985 providing 2d that proper review of a trier of fact allocation of fault is manifest errorclearly s wrong standard The evidence adduced at the summary judgment hearing supports findings from which a trier of fact could reasonably conclude that Mr Champion whose liability it is disputed in this appeal is borne by his employer BRMI 1 had a duty to see Mr Mouton and avoid colliding with him and 2 breached that duty by 3 La C art 302 states An inference is a conclusion that an evidentiary fact exists based E 4 on the establishment of a predicate fact 4 At the time of the accident La R 32 provided No pedestrian shall suddenly leave a S 212 B curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield 14 failing to see what he should have seen or not avoiding a collision despite having seen Mr Mouton and that 3 any breach of the duty Mr Champion had to see Mr Mouton was a causeinfact of Mr Mouton death 4 such failure would be s sufficient to constitute a legal cause of Mr Mouton death and 5 the Moutons s suffered damages as a result Accordingly this record contains sufficient evidence for a trier of fact to conclude that defendants BRMI and Hartford could be liable to the Moutons for the actions of Mr Champion so as to preclude dismissal of their claims by summary judgment DECREE For these reasons the judgment in which the trial court by way of summary judgment dismissed the claims of plaintiffs Sandra Mouton Woodard Keith Mouton and Michael Chad Mouton and their mother Virlee Mouton individually and as executrix of the estate of her deceased husband John Mouton as well as the claims of intervenor Lemic Insurance Company is reversed Appeal costs are assessed against defendants Baton Rouge Marine Institute and its insurer Hartford Insurance Company REVERSED 15 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 0190 SANDRA WOODARD ET AL VERSUS THE HARTFORD INSURANCE COMPANY AND BATON ROUGE MARINE INSTITUTE INC GUIDRY J concurs in the result and assigns reasons GUIDRY J concurring I respectfully disagree with the majority finding that the conflicting s statements made by Mr Champion in his written statement and his deposition testimony create a genuine issue of material fact However from my review of the record there is conflicting evidence as to whether safety cones were present in the roadway at the time of the accident and whether Mr Champion disregarded the safety cones The trial court in my opinion made an impermissible credibility determination in dismissing the plaintiffs witnesses testimony regarding the location andor placement of the safety cones Because such evidence goes to the reasonableness of Mr Champion actions and whether he breached a duty to Mr s Mouton it is sufficient to create a genuine issue of material fact so as to preclude the granting of summary judgment Accordingly I concur in the result of the majority opinion reversing summary judgment in favor of Baton Rouge Marine Institute and its insurer Hartford Insurance Company
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