John Thomas VS Austin Bridge & Road, Inc. and the State of Louisiana, through the Department of Transportation and Development
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1786 JOHN THOMAS I y VERSUS ICT AUSTI BRIDGE INC ROAD AND THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT DATE OF JUDGMENT APR 2 6 2013 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 595 SEC 26 PARISH OF EAST BATON ROUGE 722 STATE OF LOUISIANA HONORABLE KAY BATES JLJDGE James L Counsel for Plaintiff Appellant Baton n Jol Thomas Maughan Rouge Louisiana Thomas R Temple Jr Counsel for Defendant Appellee Austin Bridge Road Inc Trenton J Oubre Baton Rouge Louisiana Gregory O Currier Bruce R Hoefer Jr New Counsel for Defendant Appellee State of Louisiana Department of Orleans Louisiana Transportation and Development BEFORE KL1HN PETTIGREW AND McDONALD JJ Disposition AFFIItMED r i f Gt C QL nCwt rJ i KLJHN J appellant Plaintiff John Thomas appeals the trial court dismissal by s summary judgment of his claims for personal injuries against defendants appellees Austin Bridge Road Ina Austin Bridge and the State of Louisiana Department of Transportation and Development DOTD after his vehicle ran over debris in the roadway We affirm Thomas filed this lawsuit alleging that around 5 a on October 20 2009 19 m as he was driving his 2008 Malibu to his New Orleans worksite he sustained damages when his car hit debris on the I interstate east of Siegen Lane while the 10 roadway was under construction He contends that DOTD as custodian of the i I roadway and Austin Bridge as the general contractor of the construction site are liable far an unreasonable risk of harm that caused his damages In support of its entitlement to dismissal from the lawsuit DOTD offered into evidence the affidavit of Earl Brown an Engineering Technician 5 whose work duties included concrete paving inspection watching traffic and inspection of completed jobs Brown stated that in keeping with his normal practice on the moming of October 20 2009 he inspected all lanes of travel on I east and 10 westbound at or near the Siegen Lane exit to ensure that the traffic lanes were free from obstructions and debris and that he did not observe any debris in the I or 10 eastbound roadway near the Siegen Lane ramp His last inspection of that roadway on October 20 2009 was around 4 a Brown also attested that he had reviewed m the daily logs for October 20 2009 and no one had cailed to inform DOTD of an obstruction on the I eastbound roadway where Thomas advised his accident had 10 occurred 2 Austin Bridge submitted the affidavit of Office Manager Kelly Andrews She attested that no complaints pertaining to concrete debris or other obstacles in the eastbound Iroadway near the Siegen Lane exit on October 19 and 20 2009 had 10 been reported by any motorists other than Thomas subsequent advisement s The record is devoid of any evidence to support a finding that DOTD had notice of the debris in the roadway so as to support the imposition of liability against it on that basis See La C art 2317 La R 9 Goza v Parish of West S 2800 Baton Rouge 2008 La App lst Cir 5 21 So3d 320 cert denied 0086 09 S U 130 S 3277 176 L 1184 2010 a plaintiff may recover damages Ct 2d Ed from DOTD a public entity based on La C art 2317 as limited by La R S 92800 iDOTD had actual or constructive notice of the defect and failed to take e corrective measures within a reasonable time Similarly there is no evidence that supports a fmding that Austin Bridge knew or in the exercise of reasonable care should have known of the debris in the roadway such that in the exercise of reasonable care Austin Bridge could have prevented Thomas sdamages Thus the presence of debris in the roadway cannot support the imposition of liability against Austin Bridge See La C art 2317 1 Interestingly on appeal Thomas avers that i Austin Bridge had f appropriately cleaned up the concrete debris or i bhad been installed as f rriers a called for in the contract the accident would not have happened Thus Thomas asserts Austin Bridge negligence gives rise to an unreasonably dangerous s condition and suggests that the h court sdismissal ofDOTD and Austin Bridge on the basis of a lack of notice was therefore error 3 In addition to Office Manager Andrews affidavit Austin Bridge submitted those of two other representatives Traffic Control Supervisor Emmett White and Foreman Guadelupe Deleon Their collective attestations established that no construction work had been performed on October 19 2009 on the eastbound 20 lanes ofI near Siegen Lane 10 In the affidavit submitted by DOTD Brown attested that based on the photographs taken by Thomas later in the day on October 20 2009 rebar was clearly visible This indicated to him that it was impossible for a vehicle to cross over the exposed rebar to access I eastbound without causing severe damage to 10 the vehicle tires s All the parties relied on portions of Thomas deposition to support their s respective positions According to Thomas it was still dark outside when he struck the debris in the roadway He described the weather as somewhat foggy and wet with morning dew although he couid not remember if he was running his I windshield wipers Thomas stated that as he was driving east in the left lane of the lane two eastbound traffic he was following behind a truck He could not recall if it was a pick or a semi When Thomas saw the truck veer over slightly to up huck the right he scurried behind the truck wondering what was going on explained I after the truck passed this obstruction mmediately He I visibly saw this cement boulder in the middle of the roadway on the striped center line between the lanes of travel Thomas said that he could not move his vehicle to the left to avoid the object because there was a gap in the retaining wall and it would have led him into that quarry of cement blocks And he could not move his vehicle into the right lane of travel to avoid the object because there was a vehicle next to his He 4 i I hit the object head on the passenger side There was no one working in the on construction area Thomas testified that as a result of the impact both passenger tires deflated causing his car to jerk into the right lane With both hands on the wheel he tried to retain control of his car Thomas was unable to quickly maneuver into the right travel lane because of heavy traffic but eventually was able to pull off onto the right side shoulder where he called Onstar for assistance He also called his wife and his I supervisor to advise that he would call the police not make it into work that day Thomas did not He said that he did not look back to see what he had hit or to determine ifit was still in the roadway In describing the debris he impacted Thomas could not recall if the boulder was stationery or in motion or whether it moved when he impacted it and he was not approximately able to tell its size or of what it was made He stated that i t appeared to be cement based on the color which was off Thomas said that white he did not know where the debris came from and admitted that it could have fallen off a vehicle immediately before he struck it omas TY returned to the approximate location of the accident several hours later No one was working in the construction zone at that time He took pictures of the area where the gap in the concrete barriers was located as well as a picture of a concrete rock next to one of the concrete barriers Thomas could not say whether the boulder he struck was larger smaller or the same size as the one he photographed He did not see any boulders in the roadway at the time he took the photographs 5 In his opposition to the motions for summary judgment Thomas also offered the affidavit of Dr Jerry Householder a civil engineer who has testified as an expert in matters involving highway defects and construction management in Louisiana courts Householder reviewed provisions of the construction proposal executed contract and addenda for the construction project that Austin Bridge had undertaken with DOTD the contract Househoider testified that the contract required Austin Bridge to smaintain the entire area within the right of atisfactorily way limits of the project from the effective date of the notice to proceed until the date of final acceptance Therefore Householder attested that under the terms of the contract Austin Bridge was responsible for maintenance including debris removal to provide safe and convenient conditions at all times Househoider stated that under the contract provisions Austin Bridge was responsible far s maintaining the roadway in a satisfactory condition to allow traffic to safely travel through its work zone He suggested that under the contract terms if Austin Bridge failed to perform its maintenance responsibilities DOTD was authorized to initiate corrective measures According to Householder the photographs taken by Thomas showed that i the area adjacent to the greatest concentration of broken concrete n a section of the shoulder was not removed and concrete was left which could serve as a ramp Householder opined It was more probable than not that the concrete Thomas struck came from the construction performed by Austin Bridge and based this opinion on photographs that document the existence of several large The contract was not placed in evidence and does not otherwise appear in the record Moreover we note that contractual interpretation is a legal question reserved for the courts See Jahnson u Illinois Nat Ca 2000 La App lst Cir ll 818 So 100 103 llns 1775 O1 9 2d writ denied 2001 La 2 809 So 139 3190 02 8 2d 6 pieces of concrete on the road surface which can be displaced and moved when a vehicle travels over or strikes them He also concluded that the accident could have been prevented if Austin Bridge had cleared the debris from the wark area Based on our review of the evidence defendants have shown through s Thomas undisputed testimony and the Austin Bridge representatives affidavits that there was no one working in the construction zone on the morning of the accident or later in the day Nothing in the record establishes that subsequent to s 00 m Brown 4 a inspection and priar to the 5 a accident any vehicle 19 m traveled over or struck the large pieces of concrete depicted in the photographs that Householder relied upon to support his opinion that more probably than not the debris Thomas encountered in the roadway was concrete which came from the construction site Indeed Brown attestations suggest that the construction site was s not readily accessible to traFfic and any vehicle that attempted to traverse the area would have had debilitating tire damage And the record is devoid of any evidence that suggests the area adjacent to the greatest concentration of broken concrete where Householder identified concrete was present that could serve as a ramp had been used by any vehicle as a ramp in the time between the last 4 a inspection m and the 5 a accident 19 m Thus we find Householder opinion insufficient to s establish factual support that the debris Thomas encountered on the roadway came from the construction site Moreover Thomas testimony of what he struck was highly equivocal s Thomas admitted he did not know what it was he struck It appears that Thomas assumed it even was a concrete relative to another boulder object He could not identify its content its size not or whether it was stationery or moving before he 7 hit it Thomas even admitted that the debris could have come from another vehicle in the roadway He did not call the police to alert other drivers of the possible danger although he had a phone from which he called Onstar his wife and his boss And at no time while he waited for help did Thomas attempt to ascertain whether the item he struck remained on the roadway Reading his entire deposition we believe that Thomas stestimony is not the sort a reasonable trier of fact may rely on to establish what the debris he struck was so as to impose liability particularly since there is no other evidence that would allow an inference that the debris he encountered was concrete that came from the construction site Thus whether considered under a theory of either custodial liability see La C art 2317 and 2317 and La R 9 or ordinary negligence see La C 1 S 2800 art 2315 Thomas has failed to produce factual support sufficient to establish that either Austin Bridge or DOTD actions or omissions were the cause of his s fact in damages See La C P art 2 966C Accordingly the trial court correctly dismissed his claims against these defendants DECREE For these reasons the trial court judgment dismissing Thomas claims s s against defendants Austin Bridge and DOTD is affirmed Appeal costs appellees are assessed against plaintiff John Thomas appellant AFFIRMED 8
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