text:
    STATE EX REL. Bryant MURRAY v. STATE of Louisiana
    No. 2017-KH-1925
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

I WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5. Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Kevin DIGGS v. STATE of Louisiana
    No. 2017-KH-1902
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct;R. X § 5. Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and. within the limitations period as .set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: CLARK, J.,

text:
    STATE of Louisiana v. Grover CANNON
    No. 2017-KK-2024
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRIT TO THE SECOND CIRCUIT COURT OF APPEAL, PARISH OF CADDO

I/Writ granted. We remand this matter to the district court with instructions to conduct an in camera inspection of the psychological and internal affairs records requested by the defendant to determine whether to issue the subpoenas duces te-cum in accordance with State v. Marcelin, 10-2036 (La. 10/15/10), 46 So.3d 191 (per curiam). See State v. Devol, 17-0646 (La. 6/5/17), 221 So.3d 38. The motion to seal the record in this court is granted.

Clark, J., would deny.

Crichton, J., would deny.

CLARK, J.,

dissenting.

It! would deny.


text:
    STATE EX REL. Kevin CARTER v. STATE of Louisiana
    No. 2017-KH-1969
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure' envisions the filing of a second or successive application only under the narrow circumstances .provided in La. C.Cr.P, art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La; Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is. now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review; The district court is ordered to record a minute entry consistent with this'per cu-riam.


author: PER CURIAM.:

text:
    STATE EX REL. Ronco RANDALL v. STATE of Louisiana
    No. 2017-KH-1946
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM.:

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5. Relator has now exhausted the right to obtain post-conviction relief in state-court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana postconvietion procedure envisions the. filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s- ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application' applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-978270
    NO. 2017-BA-1863
    Supreme Court of Louisiana.
    01/29/2018
   BAR ADMISSIONS PROCEEDING

PER CURIAM

It is ordered that the application for admission be and hereby is denied. In accordance with Supreme Court Rule XVII, § 9(D)(13), petitioner may re-apply for admission upon a showing that he has complied with any and all recommendations made to him by the Judges and Lawyers Assistance Program.

ADMISSION DENIED.


text:
    STATE of Louisiana v. Bruce Edward ROBINSON
    No. 2016-KP-1704
    Supreme Court of Louisiana.
    1/29/2018
   ON SUPERVISORY WRITS TO THE FIRST DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

| TPenied. The application was not timely filed in the district court, and relator fads to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant in part.


text:
    IN RE: James Elwood MOORE, Jr.
    NO. 2018-B-0140
    Supreme Court of Louisiana.
    1/31/2018
   ORDER

It Considering the Joint Petition for Interim Suspension filed by respondent, James Elwood Moore, Jr., and the Office of Disciplinary Counsel,

IT IS ORDERED that James Elwood Moore, Jr., Louisiana Bar Roll number 21758, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


author: PICKETT, Judge. Conery, J.,

text:
    Ronald Lee STUTES, et ux. v. GREENWOOD MOTOR LINES, INC., et al.
    17-52, 17-567, 17-568
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017
    Rehearing Denied January 31, 2018

      H. Alston Johnson III, Marshall M. Redmon, Virginia Y. Dodd, Kevin W. Welsh, Phelps Dunbar LLP, II City Plaza, 400 Convention Street, Suite 1100, Baton Rouge, LA 70802-5618, (225) 346-0285, COUNSEL FOR • DEFENDANT-APPELLANT: American Guarantee and Liability Insurance Company
    Blake R. David, Robert B. Brahan, Jr., Broussard & David, Post Office Box 3524, Lafayette, LA, 70502-3524, (337) 233-2323, COUNSEL FOR PLAINTIFFS-APPEL-LEES: Ronald Lee States, Carroll Lynn States
    J. Marshall Montgomery, Attorney at Law, 802 Johnston Street, Lafayette, LA 70501, (337) 269-0083, COUNSEL FOR PLAINTIFFS-APPELLEES: Ronald Lee States, Carroll Lynn States
    Jeff Landry, Attorney General, Laura L. Putnam, Assistant Attorney General, Louisiana Department of Justice, 556 Jefferson Street, 4th Floor, Lafayette, LA 70501, (337) 262-1700, COUNSEL FOR DEFENDANT-APPELLEE: State of Louisiana, through the Department of Transportation & Development
    Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.
   PICKETT, Judge.

It This matter arises from a collision that occurred between a pickup' truck and an eighteen-wheeler tractor-trailer when the driver of the- eighteen-wheeler drove across an intersection in dense fog that limited the vision of both drivers. The driver of the pickup truck suffered catastrophic injuries. He and his wife sued the driver of the eighteen-wheeler, his employer, and the employer’s primary and excess insurers. After a jury trial, the jury found the driver of the eighteen-wheeler to be solely at fault and awarded the plaintiff damages exceeding $30 million. One excess insurer appeals the jury’s verdict. For the following reasons, we affirm the judgment of the trial court.

DISCUSSION'

The facts of how the accident occurred are not at issue. In the early morning hours of January 23, 2013, Gerald Pitre, an employee of Greenwood Motor Lines, Inc. d/b/a R & L Carriers, was operating his R & L eighteen-wheeler on the outskirts of Lafayette, upon return to R & L Carriers’ facility in nearby Scott from his regular overnight roundtrip to Houston, Texas. Mr. Pitre traveled to Houston and back to .Lafayette on Interstate 10 between 9:00 p.m. on January 22 and 5:30 a.m. on January 23. According to Mr. Pitre, he had driven back from Houston in fog that he described as “heavier than ever,” and he could only see what 'was within the area illuminated by his headlights.

Mr. Pitre exited Interstate 10 at Duson onto Austria Road and drove south to where Austria Road intersects with U.S. Highway 90 (the Intersection). The Intersection was controlled with stop signs and two red flashing signals for motorists on Austria Road and a yellow flashing signal for motorists on Highway 90. Mr. Pitre stopped when he reached the Intersection at which time he noticed a burning smell that he believed was coming from his trailer. He contacted the R & L ^dispatcher to report the burning smell and informed the dispatcher that he was going to drive to where he could safely stop and inspect the trailer to determine the cause of the burning smell.

Mr. Pitre explained that he originally intended to turn left at the Intersection, but after speaking with the dispatcher, he decided to drive straight across Highway 90 to stop and inspect his trailer. He further explained that when he ended his conversation with the dispatcher, he looked at the Intersection, saw two cars pass through it, “waited a few seconds,” then drove through it. Mr. Pitre also testified that the fog at the Intersection was such that although the vehicles traveling on Highway 90 had their headlights on, he could not see them until they “crossed right in front of my face,”

At the same time, Ronald Stutes was traveling to work on Highway 90. As he approached the Intersection, Mr. Stutes saw the eighteen-wheeler crossing the Intersection. He slammed on his brakes but was unable to stop or swerve to avoid the tractor-trailer, and he crashed into the rear wheel of the- tractor-trailer. Mr. Stutes testified- that although it was foggy, he could see the Intersection. As he crossed the Intersection, Mr. Pitre heard a crunching sound, but he was unaware that a vehicle had hit his trailer and continued traveling approximately 500 feet down Austria Road. Mr. Pitre testified that he never saw. Mr. Stutes’ vehicle before the accident.

Mr. Stutes suffered very serious injuries and is now a paraplegic with paralysis from his chest down; he is unable to care for himself. His injuries include thoracic spine fractures at T4, T5, and T6 that required fixation with screws and' rods from T2-8; a cervical spine injury at C7; a transverse process fracture with cervical spine injury; contusions in his cervical and thoracic spine; collapsed lungs; a cerebral concussion; a brain injury; a comminuted humerus4sneck fracture; and numerous other injuries. The evidence indicates that Mr. Stutes’ limbs and most of his internal organs were damaged or impaired in some way in the accident or as a result of his injuries. Additionally, after the accident, Mr. Stuteá developed diabetes.

Mr. Stutes and his wife, Carroll, filed suit against Mr. Pitre; R & L Carriers; Greenwood Motor Lines, Inc.; R & L Carriers, Inc.; R & L Carriers Shared Services, LLC; R & L Transfer, Inc.; Protective Insurance Company; Lexington Insurance Company; Zurich American Insurance Company; and American Guarantee and Liability Insurance Company (AGLIC). In their answers, the defendants asserted affirmative defenses including fault of Mr. Stutes and fault of a third party, the Louisiana Department of Transportation and Development (DOTD). The Stuteses then added DOTD as a defendant.

Prior to trial, DOTD filed a motion for summary judgment, seeking dismissal of the claims asserted against them on the basis that neither the Stuteses nor the defendants could carry their burden of proving liability against them. The Stutes-es also filed a motion for summary judgment in which they sought the dismissal of DOTD on that same basis. After a hearing, the trial court granted the motions for summary judgment and dismissed DOTD from this suit.

Prior to trial, Mr. Stutes entered into a Partial Settlement Agreement with Mr. Pi-tre, the R & L entities, and Protective Insurance Company in which those defendants tendered a sum of money less' than $4 million dollars in exchange for being dismissed from the litigation. Pursuant to the Agreement, the Stuteses reserved their rights to proceed against R & L’s excess insurers, Zurich and AGLIC, as authorized in Futch v. Fidelity & Casualty Co. of New York, 246 La. 688, 166 So.2d 274 (1964) and Gasquet v. Commercial Union Insurance Co., 391 So.2d 466 (La.App. 4 Cir. 1980), writs denied, 396 So.2d 921, 922 (La.1981). Pursuant to the Agreement, Zurich and AGLIC received a credit of $4 million against any judgment obtained against them.

After a jury trial, the jury awarded Mr. Stutes damages totaling $30,138,226 and awarded Mrs. Stutes $300,000 for loss of consortium. On November 3, 2016, the trial court signed a judgment memorializing the jury’s verdict. Thereafter, Lexington filed a motion for new trial and alternative motion for judgment notwithstanding the verdict, and AGLIC filed a motion for new trial and alternatively for remittitur and alternative motion for judgment'notwithstanding the verdict. The trial court denied the motions. Lexington and-AGLIC each appealed; Lexington dismissed its appeal before filing an appellate brief.

ASSIGNMENTS OF ERROR

AGLIC assigns the following errors with the trial court proceeding:

1. The trial judge erred in granting the pre-trial motions of the plaintiffs and [] DOTD for summary judgment, resulting in the omission from the jury verdict form of any possibility for the jury to assign a percentage of fault to [] DOTD.
2. The trial judge erred in permitting the jury to consider a life care plan based on the life expectancy of a person without the serious injuries that Stutes had, and erred in denying post-judgment relief on this basis.
3. The jury erred in awarding grossly excessive general damages to Ronald Stutes for his injuries, and the trial judge erred in denying the post-judgment relief sought by appellant to reduce those damages

Summary Judgment

AGLIC first assigns error with the trial court’s grant of DOTD’s and the Stuteses’ motions for summary judgment which prevented AGLIC from arguing to the jury that the Intersection was unreasonably dangerous and prevented the jury |5from assigning a percentage of fault to DOTD. The Stuteses named DOTD as a defendant because the R & L defendants pleaded the affirmative defense of fault of a third party, alleging that DOTD was negligent for failing to install a three-phase signal at the Intersection and that its negligence contributed, to the accident. DOTD filed a motion for summary judgment, arguing that a three-phase signal was not required at the Intersection and that it was not negligent for not installing one. The Stuteses followed suit and filed their .own motion for summary judgment, seeking the dismissal of DOTD on the same grounds asserted by DOTD.

Appellate courts review the grant or denial of a motion for summary judgment de novo, “using the same criteria that govern the trial court’s determination of whether summary judgment- is appropriate; i.e. whether there is any genuine issue of material fact, and whether the mov-ant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882; La.Code Civ.P. art. 966(A)(3). The party that files a motion for summary judgment bears the burden of proof on the motion. La.Code Civ.P. art. 966(D). If, however, the moving party will not bear the burden of proof at trial on the issue addressed in the motion and points out that there is ah “absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense!,]” the non-moving party must then produce evidence showing that a genuine issue of material fact exists “or that the mover is not entitled to judgment as a matter of law.” La. Code - Civ.P. art. 966(D)(1). If the. non-moving party then fails to produce, such evidence, “there is no genuine issue of material faet[,] and summary judgment will be granted.” Bufkin v. Felipe’s La., LLC, 14-288, p. 3 (La. 10/15/14), 171 So.3d 851, 854.

With regard to their claims that DOTD was at fault for the accident, AGL-IC had the burden of proving that: (1) the' accident occurred on property .in DOTD’s custody or control; (2) the property was defective because it contained a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive notice of this defect; and (4) the defect was the cause-in-fact of the injury. Toston v. Pardon, 03-1747 (La. 4/23/04), 874 So.2d 791. In its motion for summary judgment, DOTD asserted that discovery by the parties revealed an absence of support for the Stuteses’ and AGLIC’s claims that the Intersection was defective and/or was a substantial factor in causing the accident. In their motion for summary judgment, the Stuteses urged the same arguments DOTD asserted in its motion.

DOTD has a “duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence.” Id. at 799. This duty requires DOTD to use appropriate signage and traffic signals, Skulich v. Fuller, 46,733 (La.App. 2 Cir. 12/14/11), 82 So.3d 467. It does not, however, make DOTD “the guarantor for the safety of all of the motoring public or the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances.” Forbes v. Cockerham, 08-762, 08-770, pp. 31-32 (La. 1/21/09), 5 So.3d 839, 858. “Whether. DOTD has breached its duty to the public depends on all the facts and circumstances determined on a case by case basis.” Id. at 859. The occurrence of an accident is not an inference that an unreasonable risk of harm exists. Netecke v. State ex rel. DOTD, 98-1182, 98-1197 (La. 10/19/99), 747 So.2d 489. “DOTD’s duty to maintain highways in a -safe manner does not- include the risk of injury or death caused by 'the gross negligence of a third party motorist,” Ferrouillet v. State ex rel. Dep’t of Transp. & Dev., 02-576, 02-577, p. 3 (La.App. 4 Cir. 1/15/03), 836 So.2d 686, 688, writs denied, 03-751 (La. 5/9/03), 843 So.2d 402; 03-756 (La. 5/9/03), 843 So.2d 403.

At the Intersection, Highway 90 is a two-way, two-lane highway situated in an east-west direction. It has separate left-turn lanes on both approaches to the Intersection. Austria Road is also a two-lane, two-way highway; it travels north-south and intersects Highway 90 at a right angle. Traffic on Austria Road at the Intersection is controlled by stop signs and overhead flashing signals. A yellow flashing signal faces Highway 90 traffic, and a red flashing signal faces Austria Road.

As a driver faced with a red flashing signal and a stop sign, Mr. Pitre’s actions at the Intersection were governed by La. R.S. 32:234 and La.R.S. 32:123(B). Louisiana Revised Statutes 32:234 provides, in pertinent part:

A. Whenever an illuminated flashing red or yellow signal is used in a traffic sign or signal, it shall.require obedience by vehicular traffic as follows:
(1) FLASHING RED [STOP SIGNAL] — When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest cross-walk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign.

Louisiana Revised Statutes- 32:123(B) defines the duty of the motorist at an intersection regulated by a stop sign:

B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the inter-. secting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way-to all vehicles which have entered the- intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.

In Charan v. Bowman, 06-882, p. 11 (La.App. 1 Cir. 8/1/07), 965 So.2d 466, 474 (citations omitted), writ denied, 07-1773 (La. 11/9/07), 967 So.2d 506, the first circuit addressed the care that must be exercised by drivers driving in conditions, such as fog, that limits their ability to see, explaining:

A driver does not have the right to assume the course of travel is free from danger if he cannot see clearly ahead. If he continues to travel as if he knew there was perfect clearance, he does so at his own risk and peril. Further, a motorist is held to a-higher degree of care in adverse conditions, and his duty to keep his vehicle under control increases in periods of low visibility. Adverse driving conditions call for unusual caution on the part of motorists. If conditions warrant it, the motorist may be required to slow or pull over and stop until the visibility improves. If the adverse condition or defect is open and obvious, defendants [including DOTD] may have no duty to protect or warn against the hazard and the condition may not be unreasonably dangerous.

AGLIC defended .against the motions for summary judgment, arguing that the Intersection is unreásonably dangerous because DÓTD should have installed a three-phase signal at the Intersection and that a three-phase signal would have prevented the accident. AGLIC supported these contentions with the testimony of David Krauss, Ph.D., an expert in human factors, and Tony Tramel, a civil engineer who practices in the fields of transportation engineering and transportation safety and planning. Dr. Krauss testified that because Mr. Pitre obeyed the stop sign/red flashing signal and stopped at the Intersection, he would have obeyed a three-phase signal and entered the Intersection only when the light facing him was green.

Mr. Tramel evaluated the Intersection under directives outlined in the Manual on Uniform Traffic Control Devices (MUTCD) by collecting information lnregarding traffic conditions at the Intersection and opined that a three-phase signal should have been installed at the Intersection. He based his opinion on data concerning four Traffic Signal Warrants enumerated in the MUTCD: eight-hour traffic volume, four-hour traffic volume, peak hour traffic, and roadway network. Mr. Tramel concluded that these four warrants were met or exceeded. Mr. Tramel concluded that these four warrants were met or exceeded.

Mr. Tramel determined that the conditions existing at the Intersection “exceed the guidelines used by traffic engineers, in conjunction with their engineering judgment, to justify the installation of a traffic signal at the subject location” and opined “that it would be more likely than not that a practicing traffic engineer would recommend signalization at this location.” Nonetheless, he also testified that it would be reasonable for other engineers to conclude that a traffic signal is not justified at the Intersection, that other practicing engineers might disagree with his opinion, and that such disagreement would be reasonable. Mr. Tramel admitted that the installation of a signal was not mandated by the MUTCD. Furthermore, he did not opine that the lack of a three-phase signal at the Intersection created an unreasonable risk of harm to the motoring public or that the absence of a three-phase light at the Intersection contributed to the accident.

Compliance with the MUTCD constitutes prima facie evidence of no fault by DOTD for failing to install proper signalization. La.R.S. 32:235(E). Renfro v. Burlington N. Santa Fe Ry. Co., 15-372 (La. App. 3 Cir. 5/11/16), 193 So.3d 1192. This presumption is rebuttable and does not preclude a finding, based on other evidence, that the highway actually was unreasonably dangerous and that DOTD was negligent. Id.

DOTD hired a traffic engineer, Joseph D. Blaschke, to review Mr. Tramel’s conclusions and AGLIC’s claim that the lack of a three-phase signal at the Intersection constituted an unreasonable risk of harm. In addition to reviewing Mr. Tramel’s traffic study, Mr. Blaschke reviewed evidence of how the accident occurred and opined that the accident was caused by Mr. Pi-tre’s entering the Intersection as Mr. Stutes approached it and that the traffic study of the Intersection conducted by Mr. Tramel did not justify a three-phase signal.

AGLIC’s argument that because Mr. Pi-tre stopped at the stop sign/flashing signal, he would have obeyed three-phase signal and entered the Intersection only when he had a green light has been rejected under similar facts by courts that determined “there is no negligence on- the part of DOTD when an accident is caused by the fault of a motorist failing to obey the existing signage and arguing that had a different warning been given it would have been obeyed.” Stewart v. State ex rel. Dep’t of Transp. & Dev., 08-772, p. 9 (La.App. 1 Cir. 3/20/09), 9 So.3d 957, 964, writs denied, 09-1228 (La. 9/18/09), 17 So.2d 968. See also Jacques v. State Through Dep’t of Transp. & Dev., 03-2226 (La.App. 1 Cir. 9/17/04), 905 So.2d 294, writ denied, 04-3013 (La. 2/18/05), 896 So.2d 36; Holt v. State Through Dep’t of Transp. & Dev., 28,183 (La.App. 2 Cir. 4/3/96), 671 So.2d 1164, 1171, writs denied, 96-1074 (La. 6/21/96), 675 So.2d 1093; 96-1132 (La. 6/21/96), 675 So.2d 1080; and Burge v. City of Hammond, 509 So.2d 151 (La.App. 1 Cir.1987).

Mr. Pitre stopped at the Intersection but then proceeded into it knowing that he could only see traffic within the Intersection and drove directly into the path of Mr. States’ truck. Mr. Pitre’s entering the Intersection without being able to see approaching traffic was in direct contravention of La.R.S. 32:234(B) which has been held to constitute gross negligence. See Holt, 671 So.2d 1164. By entering Inthe Intersection without being able to see approaching traffic he also failed to exercise the “unusual caution” required by the foggy conditions, Charan, 965 So.2d at 474, and violated the “high standard of care” he owed the motoring public. Davis v. Witt, 02-3102, 02-3110, p. 13 (La. 7/2/03), 851 So.2d 1119, 1129.

Based on the evidence before us, Mr. Pitre’s entering the Intersection as Mr. States approached constitutes gross negligence and was the sole cause of the accident. Accordingly, no genuine issue of material fact has been shown to exist with regard to whether DOTD had a duty to install a three-phase signal at the Intersection, and we affirm the trial court’s grant of summary judgment in favor- of DOTD and the Stuteses.

Life Expectancy

AGLIC next asserts that the trial court erred in permitting the jury to consider a life care plan based on the life expectancy of a person without a serious spinal cord injury such as Mr. States and then denying its request for a reduction in the jury’s award for Mr- States’ future medical expenses. It argues that because of the nature and severity of Mr. States’ injuries, the trial court erred in allowing the jury to consider the testimony of Mr. States’ physicians that he could live until 81.5 years of age, a “normal” lifespan. Dr. Cornelius' Gorman, a vocational rehabilitation expert and life care planner, and Dr. Shelly Savant, a neurologist, psychologist, and life care planner, prepared a life care plan to establish the estimatéd cost of all the medical treatment his physicians expected him to need during the remainder of his lifetime. The life care plan was prepared in consultation with Mr. States’ treating physicians. Drs. Gorman and Savant confirmed that when preparing their life care plan for Mr. States, they calculated his future life expectancy based on the general Life Expectancy Table published by the U.S. Department of Health and Human Services. They testified that the quality 11gof care provided to a person with a spinal injury is directly related to his longevity. Their testimony was corroborated by Mr. States’ current treating physicians, who testified that they treated patients with spinal cord injuries such as Mr. States who lived into their eighties. Based on this information, Mr, Stutes’ expert economist calculated the value of the Gor-man/Savant life care plan based on the estimated 21.5-year general life expectancy table. He also calculated the value of an 18.25-year life care plan. The jury awarded the cost of the 18.25-year life care plan.

The jury also considered the testimony of the defendants’ life care plan experts, Dr. Susan J. Garrison and Ginny Stegent, R.N., which reflected a reduced life expectancy of fifteen years. The Garrison/Steg-ent Plan utilized a life expectancy table prepared by the National Spinal Cord Injury Statistical Center at the University of Alabama' at Birmingham (NSCISC). This “table estimates life expectancy for persons with spinal cord injuries who survive at least one year post-injury by current age 'and neurologic category.” Duncan v. Kansas City So. Ry.Co., 00-66, p. 21 (La. 10/30/00), 773 So.2d 670, 687.

AGLIC . argues that in Duncan, 773 So.2d 670, the supreme court prohibited the use of a normal life expectancy table for all persons with spinal cord injuries; therefore, the trial court committed manifest error in allowing the Gorman/Savant life care plan to be presented to the jury. AGLIC made this argument to the trial court in a motion in limine which the trial court denied. It then filed writ applications with this court and. the supreme court, seeking review of the trial court’s denial of its motion in limine. The requested relief was denied by this court, Stutes v. Greenwood Motor Lines, Inc. 16-854 (10/24/16), and the supreme court. Stutes v. Greenwood Motor Lines, Inc., 16-1934 (10/26/16), 213 So.3d 389.

Citing Duncan, 773 So.2d 670, AGLIC contends .that the jury should only have been allowed to consider evidence that Mr. Stutes’ remaining life expectancy | iaat the time of trial was fifteen years, as per the NSCISC life expectancy table and testified to by Dr. Stengent. In Duncan, the jury accepted the plaintiffs expert testimony that the 15-year-old plaintiff, who had suffered a spinal injury at C5, had a normal life expectancy of eighty-one years. The supreme court held that the trial court’s acceptance of the plaintiffs expert’s testimony constituted manifest error because it failed to account for the effect of-her injuries on her life expectancy.

Contrary to AGLIC’s argument, the supreme court did not hold' that the life expectancy stated in the NSCISC table represented the plaintiffs maximum life expectancy. Instead, the supreme court observed that the NSCISC table’s life expectancy for the plaintiff was 42.6 years but then accepted the defendant expert’s opinion of a 57-year life expectancy as being more “accurate” than the 81-year life expectancy predicted by the plaintiffs expert. Moreover, AGLIC’s argument fails to acknowledge Dr. Savant’s testimony regarding the latest version of the NSCISC Life Expectancy Tables which states that the tables are “rough estimates for life expectancy” and specifically recognizes that “access to care” is a prognostic factor to be considered when estimating life expectancy.

Our review of the record shows that the jury approached this issue in the same manner the supreme court approached it in Duncan, 773 So.2d 670. That is, the jury considered the defendant experts’ opinion that Mr. Stutes’ life expectancy is fifteen years, as per the NSCISC life expectancy table, and weighed it against the testimony of Dr. Savant and Mr. States’ treating physicians that in their experience, a patient with a spinal cord injury who follows his physicians’ treatment recommendations and receives the level of care Mr. Stutes has received can have a normal life expectancy. The jury then concluded that although Mr. States’ life expectancy will likely be extended beyond the age stated in the luNSCISC table, his life expectancy will most likely be reduced to some extent as a result of his injuries.

Based on the evidence before us, we find no error with' the trial court’s decision to allow evidence of the “normal” life expectancy table along with the NSCISC table for patients with spinal cord injuries. The jury’s conclusion that Mr. Stutes’ life expectancy ranged between the ages opined by the experts is supported by the evidence. Accordingly, we find no manifest error with the jury’s award of $7,500,000 for future medical and life care expenses. .The award reflects the jury’s reduced life expectancy of 18.25 years for Mr. Stutes which is supported by the evidence.

General Damages

Lastly, AGLIC argues that the jury’s general damage awards are excessive. The jury awarded Mr. Stutes the following general damages:

Physical pain and suffering (past, present, future) $ 4,000,000
Mental pain and suffering (past,present,future) $5,000,000
Diminished life expectancy $ 1,750,000
Loss of enjoyment of life $ 6,000,000
Permanent disability $ 4,000,000

Louisiana jurisprudence has long held that the trier-of-fact has great discretion when assessing damages; therefore, general damage awards are reviewed under the abuse of discretion standard. Guillory v. Lee, 09-75 (La. 6/26/09), 16 So.3d 1104. This standard of review is, both hard to articulate and “necessarily nonspecific.” Cone v. Nat’l Emergency Servs., Inc., 99-934, p. 8 (La. 10/29/99), 747 So.2d 1085, 1089 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993)). In Youn, 623 So.2d at 1261, the supreme court acknowledged that reasonable persons often cannpt agree on an appropriate award |1Bfor general damages and held that appellate courts should disturb an award of general damages only when “the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances.” Appellate courts only examine prior awards to determine whether a judgment is • abusively low or excessively high after it -has determined that an abuse of-discretion has occurred. Cone, 747 So.2d 1085.

The difficulty of the jury’s task in awarding Mr. Stutes general damages and our task in reviewing those awards was addressed by this court in McMullen v. Pan American Fire & Casualty Co., 352 So.2d 1058, 1060 (La.App. 3 Cir. 1977), writs denied, 354 So.2d 209 (La.1978):

The pain and suffering, disfigurement and disability' have been well proven in this case by both expert and lay witnesses. To listen to the testimony given ,by these witnesses in relation to the injuries suffered, as .well as seeing this •man in.person,at the trial and the picture taken after the accident, one must come to the conclusion that there is just no proper dollar amount which could . possibly indemnify anyone for such injuries¿ However, this Court must nevertheless try.

The evidence at trial showed that Mr. States’ life was completely transformed'in the early morning hours of January 23, 2013. In a matter of minutes, he went from a hard-working man who was most satisfied by helping others to a man who must rely on others to ténd to his every need. Mr. States had been married to his wife, Carroll, for many years when the 'accident occurred. They had a close; loving relationship and enjoyed many activities together. Carroll had suffered a stroke approximately two and one-half years before the accident and lived in a nursing home. Mr. States visited her daily, going directly to the nursing home after work every weekday. He participated in social activities at the nursing home with Carroll and the other residents and often performed tasks around the nursing home.

| ^Immediately after the accident, Mr. States learned that his spinal - cord was injured at T4 level and that he was paralyzed from his chest down. Among Mr. States’ numerous injuries, an injury to his right shoulder was one of his worst. His daughter Ashley testified that when looking at him, the only area not injured was his head. Medical testimony established, however, that he did have lacerations on his head, a concussion, and brain injury. Due to the extent and severity of his injuries, Mr. States was transferred from Lafayette to New Orleans to a rehabilitation facility. He did not return home until approximately six months after the accident.

As a result of his right shoulder injuries, there is a great deal of calcification in his right shoulder that prevents Mr. • States from being able to fully extend his right arm and rotate his shoulder, which has resulted in-the use of his right arm being -greatly limited. He cannot use his right arm to assist in transferring himself from one surface to another, such as-his wheelchair to his bed. Mr. States attempted to transfer himself on one occasion when Ashley was present. His right arm could not support him,- and he fell. He also -had injuries to his left arm that have caused limitations. As a result, his treating physicians testified that Mr. States is a “functional” quadriplegic. .

Mr. States must have assistance twenty-four hours a day. He requires a catheter to void urine which has painful complications. He also suffers daily the humiliation of having no privacy as his caretakers tend to his bodily functions to insure that they are properly maintained. He cannot dress or feed himself. The daily ritual of bathing, dressing, feeding, and otherwise preparing him for the day requires three to four hours. He can only be left alone for very short periods of time because he cannot move himself in the event of an emergency-

Mr. States enjoyed hunting, fishing, gardening, and woodworking as hobbies, but he had stopped participating in those hobbies when Cairoll was moved to the nursing home. He testified that he attempted to do some gardening in' box planters after his wife died but quit because his bladder drain would get kinked. He also testified that although he has no feeling from his chest down, his shoulders, especially his right shoulder, are a great -source of pain for him. He further testified that he wakes every morning aching from his chest up and explained that he refuses to take prescription pain medication' because they put him in a bad mood and make him drowsy. With regard to his right shoulder, Mr. States testified that he has good days and bad days and that on bad days he stays in bed all day. Changes in the weather often cause an increase in his pain. He éxplain'ed that cold weather is very hard on him because he has “so much metal in me” that his shoulders are never warm.

Mr. States testified that he was excited because Ashley was pregnant, but expressed sadness that he would not be able to play with the baby on the floor. He described for the jury the effect the accident has had on him emotionally. His simple, direct testimony reveals the range of emotions he must deal with regularly— despair, depression, optimism, and thankfulness, as a result of his injuries:

Every day I wake up[,] and I thank God because I can see sunlight. God kept me alive for a reason. And what I have left I’m trying to do the best with what I have. Because some days I don’t want to live. It’s very hard to live the rest of your life in a chair or in the bed. And I can’t do the simplest things as change a light bulb. And it’s very hard to watch somebody else do something for you when you’re used to helping everybody else. It’s very tough to deal with. So, I try to do the best with what I have left. My main concern is helping other people[,] and I can’t no more. And that hurts. But there’s always somebody worse than me.

|1sMr. States’ treating physicians; Michael Norman, his primary certified nursing assistant who cares for him during the day; and Ashley further described his physical and mental suffering, the serious pain he has endured, and his struggles to adapt to his new life. His physicians outlined his extensive injuries, how they have affected him from a professional standpoint, and the limitations he now has. They also detailed the personal attention and medical care that he requires, including preventive care that is required as a result of his spinal cord injury. They explained that due to his paralysis, Mr, States is prone to develop bed sores, urinary tract infections, pneumonia, and continued calcification and arthritis in his right shoulder, all of which will require medical treatment and possibly hospitalizations. His physicians further testified that Mr. States complies with their treatment recommendations as best he can.

Mr. Norman gave further insight into the impact that Mr. States’ injuries have had on his ability to socialize. He explained that Mr. States likes to go on outings but his outings are limited by accessibility for his wheelchair and that on most outings, Mr. States remains in his van. He further explained that on those occasions that Mr. States gets out of the van, he worries about inconveniencing others with his wheelchair. Mr. Norman related that on one trip, he brought Mr. States to visit a location where he had planned to retire, explaining that Mr. States got emotional when they reached their destination because he knew he could not retire there as he had previously planned.

Ashley described how the accident affected her father, explaining that he is often depressed because he is not the man he once was. She explained that he was upset that people now opened doors for him, whereas before he was injured, he opened doors for others. She testified that he was upset after seeing accident photographs at trial that he had not seen before. Ashley told the jury how excited Imher father was that she was pregnant and expecting a little girl. She then related that she had asked him to build a crib for the baby, but he began crying and told her that he could not because his right arm injury will not allow him to use his power tools. Ashley also testified that her father had fallen twice. On the first occasion, she called a local police officer, a personal friend, who brought along his brother and two friends to be able to move him safely. On the second occasion, she called a firefighter friend who brought four, others to move him. Ashley and her husband live with Mr, States, so she can care for him when a CNA is not with him.

The jury heard and considered the ex tensive evidence of Mr. States’ injpies and the impact, physically and mentally, those injuries have had on him and will continue to have on him. Based on the record before us, we cannot say that the jury’s damage awards are an abuse of the much discretion afforded them and affirm them all.

DISPOSITION

Having considered American Guaranty and Liability Insurance Company’s assignments of error and finding no error with the trial court’s grants of summary judgment in favor of the Department of Transportation and Development and the Stutes-es, with the trial court’s decision to allow into evidence the Department of Health and Human Services Life Expectancy Table, or with the jury’s general damage awards, we affirm the judgment of the trial court. All costs are assessed to American Guaranty and Liability Insurance Company.

AFFIRMED..

Conery, J., concurs in the result and assigns reasons.

Conery, J.,

concurs in the result and assigns reasons.

hi concur with the result of the majority’s, opinion. The main issue with which I have concern is the amount of the general damage award, which I feel was extremely high. The total general damage award in this case, $21,750,000.00, far exceeds the average , past awards for injuries of this type. As noted by AGLIC’s counsel in its brief and reply brief, the vast majority of general damage awards cited for similar injuries range between 2,5 million and 9 million dollars.

The jury verdict form contains separate line items of general damages that argu.ably allow for a duplication of awards for specific items that juries may find difficult to differentiate. For example, the jury returned a verdict for general damages on a special verdict form as follows:

Physical pain and suffering (past, present, future) $4,000,000
Mental pain and suffering (past, present, future) $5,000,000
Diminished life expectancy $1,750,000
Loss of enjoyment of life $6,000,000
Permanent disability $4,000,000

In addition, approximately 9 million was awarded in special damages for a total judgment of $30,438,225.00.

I am of the view that the itemization of general damage categories on the verdict form added substantially to the likelihood that the jury would award separate general damages for, essentially, the same injury, • and, in my view, contributed to the high verdict. However, since there was no objection to the jury verdict form, a finding of manifest error cannot be supported on that basis. Royer v. State Dep’t of Transp. & Dev., 16-534 (La. App. 3 Cir. 1/11/17), 210 So.3d 910, 923, writ denied, 17-288 (La. 4/24/17), 221 So.3d 69; Kenne dy v. Davis, 17-218 (La. App. 3 Cir 10/4/17), 229 So.3d 558.

| ¡¡Plaintiffs closing argument also contains a strong “send a message/retribution statement” that should.properly be directed, only at punitive damages, not applicable in this case. See Gillespie v. Calcasieu Parish School Bd., 15-647 (La.App. 3 Cir. 12/2/15), 179 So.3d 966, 970. Likewise, there was no objection to plaintiffs counsel’s-“send a message” plea to the jury.

I agree that Mr. States had extremely serious and debilitating injuries and is entitled to fair and just compensation. I question whether the total general damage award is also reasonable. However, based on the manifest error rule and our limited appellate role in reviewing a jury’s verdict, I cannot say that there is no “reasonable basis” for the general damage awards in the record, especially after a review of the “day in the life video” shown to the jury, again without objection. Therefore, I respectfully concur in the result.

      , The Stuteses' daughter, Ashely, also filed suit against the defendants but later dismissed her claims with prejudice.

      . A three-phase signal is traffic signal with red, yellow, and green lights .

      . The MUTCD is the nationally accepted engineering treatise published by the Federal Highway Administration which provides guidelines and recommendations for the standardization of traffic control devices, such as signs and signals, nationwide. DOTD has adopted the MUTCD as the minimum safety standards for highway design, construction, and maintenance. La.R.S. 48:3513.

      . A warrant is a factor that must be considered in determining whether a three-phase signal is required. One or more warrants must be met before a traffic signal can be installed.


author: KEATY, Judge.

text:
    John THIBODEAUX and Amy Thibodeaux, individually and on Behalf of Emily Thibodeaux and Gabrielle Thibodeaux v. GULFGATE CONSTRUCTION, LLC, et al.
    17-494
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017

      Melvin A. Eiden,. Rabalais <⅞ Hebert, 701 Robley Drive, Suite 210, Lafayette, Louisiana 70503, (337) 981-0309, Counsel for Defendant/Appellant: J. M. Drilling LLC
    Max J. Cohen, Melanie Lockett, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, Louisiana 70139-3600, (504) 581-2450, Counsel for Defendant/Appellee: Water & Wastewater Utilities, Inc.
    Janice M. Reeves, Maride & Associates, III United Plaza, Suite 350, 8545 United Plaza Boulevard, Baton Rouge, Louisiana 70809, (225) 924-9585, Counsel for Defendant/Appellee: Gulfgate Construction, LLC
    Max Michael Menard, Attorney at Law, 200 Church Street, Post Office Box 1196, Youngsville, Louisiana 70592, (337) 857-6123, Counsel for Plaintiffs/Appellees: John Thibodeaux, Amy Thibodeaux, Gabrielle Thibodeaux, Emily Thibodeaux
    Edward Taulbee, Attorney at Law, Post Office Box 2038, Lafayette, Louisiana 70502-2038, (337) 269-5005, Counsel for Plaintiffs/Appellees: John Thibodeaux, Amy Thibodeaux, Gabrielle Thibodeaux, Emily Thibodeaux
    Pierre M. Legrand, Marshall G. Weaver, Legrand Law Firm,’ 3939 North Causeway Boulevard, Suite 204, Metairie, Louisiana 70002, (504) 304-9499, Counsel for. Interve-nor/Appellee: BellSouth Telecommunications, LLC
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge.

|, Defendant/Appellant, J. M. Drilling LLC (J. M. Drilling), appeals the trial court’s granting of a motion for summary judgment in favor of Defendant/Appellee, Water & Wastewater Utilities, Inc. (Wastewater). For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

This negligence matter arose on June 9, 2015, when Plaintiff, John Thibodeaux, injured his right leg while, splicing fiber optic cable on behalf of his employer, American Telephone & Telegraph (AT & T), at 114 Meadow Gate Drive in the Sawgrass subdivision in Lafayette, Louisiana. Thibo-deaux had to access hand holes, which are rectangular, underground vaults where fiber optic cables come together and are spliced. The two hand holes at issue were equipped with covers that rested on top of the ground. They were located near a rectangular, pre-cast slab which held an AT & T- cabinet. On the day of his accident, Thibodeaux lifted a hand hole cover and placed it by the AT & T cabinet when the ground beneath him gave way, causing his right leg • to fall • into a hole, sustaining injury.

Prior to Thibodeaux’s accident, Gulfgate Construction, LLC (Gulfgate Construction), and J. M. Drilling performed work on the property pursuant to separate contracts with AT & T. Gulfgate Construction’s job, which was the FI part of the project, consisted of preparing a pre-cast slab, installing a cabinet on top of the precast slab, digging two hand holes, and feeding fiber optic cable into hand hole number two. After Gulfgate Construction finished its job, J. M. Drilling performed the F2 part of the project, which consisted of installing fiber optic cable by accessing the hand holes and feeding the cable out to the rest of the subdivision.

' | Jt is alleged that during operations, Gulfgate Construction and/or J. M. Drilling struck and damaged an underground sewer force main line. The main line purportedly began leaking and caused a washout under the pre-cast slab upon which the AT & T cabinet was situated, ultimately forming the hole into which Thibodeaux fell. The main line, which ran from a sewer lift station on the property to the street, belonged to Wastewater, the owner and operator of the lift station. Gulfgate Construction repaired Wastewater’s broken main line after Thibodeaux’s accident. Wastewater had not marked its main line prior to the commencement ■ of work performed by Gulfgate Construction and J. M. Drilling. The hand holes had to be repositioned as a result of the existence of the underground main line.

On August 24, 2015, Thibodeaux and his wife, Amy, individually and on behalf of their minor daughters, Gabrielle and Emily, filed suit against Gulfgate Construction, Milton Water System, Inc., and Wastewa-ter. Gulfgate Construction is the subject of a separate appeal in this court in Docket Number 17-495. Milton Water System, which has been dismissed, is not the subject of either appeal. On October 8, 2015, Thibodeaux amended his lawsuit, adding J. M. Drilling as a defendant.

■On August 23, 2016, Wastewater filed a Motion for Summary Judgment. It was granted for reasons cited ⅛ open court by the trial court following a hearing which occurred on January 30, 2017. On that same day, the trial court signed a written judgment dismissing Wastewater from the matter, based upon its finding that “there is no genuine issue of material fact that [Wastewater] is not liable for the damages sued upon.” J.-M. Drilling appealed.

On appeal, J. M. Drilling alleges the following assignments of error:

1. The trial court erred when it granted Wastewater’s Motion for Summary Judgment since Wastewater failed to ' uphold its statutory duty to mark its lines when notified by Louisiana One[ ] Call when its underground facilities may be implicated.
2, The trial court erred in granting Wastewater’s Motion for Summary Judgment as the question, of whether the failure of. Wastewater to mark its lines was a concurrent, causal factor to the injury suffered hy Thi-bodeaux is a question of fact that the jury should decide.
3. The trial court erred in granting Wastewater’s Motion for Summary Judgment based in part on the status of Louisiana One Call as a non-defendant.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consider-, ation of whether summary judgment is appropriate.” Greemon v. City of Bossier City, 10-2828, 11-39, p. 6 (La. 7/1/11), 65 So.3d 1263, 1267. A summary judgment “shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3). “The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.” La. Code Civ.P. art. 966(A)(4). “The burden of proof rests with the mover.” La.Code Civ.P. art. 966(D)(1). If the mover will not bear the burden of proof at trial on the matter at issue, however, his burden on the motion for summary judgment “does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, 'action, or defense.” Id. Specifically, “[t]he burden is on the adverse party |4to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id.

DISCUSSION

I. First Assignment of Error:

In its first assignment of error, J. M. Drilling contends the trial court erred when it granted the Motion for Summary Judgment because Wastewater failed to uphold its statutory duty under the Louisiana Underground Utilities and Facilities Damage Prevention Law to mark its lines when notified by Louisiana One Call when its underground facilities may be implicated.

The Louisiana Underground Utilities and Facilities Damage Prevention Law (Damage Prevention Law) is governed, in part, by La.R.S. 40:1749.11-1749.14 and its “goal is to protect the public from damage resulting from the underground utilities being damaged.” Weatherly v. Fonseca & Assocs., L.L.C., 10-495, p. 2 (La.App. 3 Cir. 10/6/10), 48 So.3d 394, 395-96, writ denied, 10-2497 (La. 1/7/11), 52 So.3d 887. It requires excavators to “ascertain the location of underground facilities by calling the notification center, known as ‘Louisiana One Call,’ at least forty-eight but not more than 120 hours prior to excavation.” BellSouth Telecomms., Inc. v. Eustis Eng’g Co., Inc., 07-865, pp. 2-3 (La.App. 4 Cir. 12/19/07), 974 So.2d 749, 750. The parties in this matter refer to this request as a “DOT-TIE.” After Louisiana One Call-receives the call, the “utility operators are notified and given a ‘mark by’ date by which the utilities must mark the locations of their underground cables, etc., so the excavator will not damage the underground utilities.” Id.

“Louisiana court's use a duty-risk analysis in negligence cases to 'determine whether liability exists under the facts of a particular case.” Cormier v. Albear, 99-1206, p. 6 (La.App. 3 Cir. 2/2/00), 758 So.2d 250, 254. Under this analysis, a plaintiff is required to prove five separate elements:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her. conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages.

Christy v. McCalla, 11-366, pp. 8-9 (La. 12/6/11), 79 So.3d 293, 299 (citing Pinsonneault v. Merchs. & Farmers, Bank & Trust Co., 01-2217, p. 6 (La. 4/3/02), 816 So.2d 270, 275-76). “The threshold issue in any negligence action is whether the defendant owed the plaintiff a- duty, and whether a duty is owed is a question of law.” Hanks v. Entergy Corp., 06-477, p. 21 (La. 12/18/06), 944 So.2d 564, 579. “Whether the defendant breached that duty and whether that breach was a cause in fact of plaintiffs injuries are factual questions to be determined by the factfinder,”. Id. at 580.

In this case, our inquiry is- whether Wastewater owed Thibodeaux a duty under the Damage Prevention Law to mark its main line in conjunction-.with work performed by J. M.- Drilling on the property in question. On appeal, Wastewater contends that it did not owe a duty to mark its main line prior to the commencement of J. M. Drilling’s work because it was not notified by Louisiana One Call regarding work to be performed on the property in question. In support, Wastewater offered into evidence at the hearing the affidavit of its employee and supervisor, Randy Savoy. Savoy explained that, prior to excavating land, a contractor is required to obtain a DOTTIE, which requests the owners of underground utilities to mark them so that they will not be damaged during the excavation process. Savoy attested that Waste-water, as the owner of the ^underground main line, was never requested to mark its lines pursuant to any DOTTIE requests prior to June 9, 2015, the date of Thibo-deaux’s accident. Savoy attested that Wastewater had not excavated or performed any work at the property prior to August 31, 2015, the date Wastewater was served the petition herein.

On the other hand, J. M. Drilling contends that Wastewater received notification from Louisiana One Call in connection with two DOTTIEs requested by Gulfgate Construction regarding work that it was going to perform on the property. At the hearing, J. M. Drilling offered into evidence two DOTTIEs, i.e., Louisiana One Call System Ticket Numbers 150016857 and 150047467, which were requested by Gulfgate Construction on January 13, 2015 and February 3, 2015. These two DOT-TIEs were for work that was to be performed on January 16, 2015 through February 5, 2015, and February 6, 2015 through February 26, 2015, at the intersection of Meadow Gate Drive and Timber Bark Road. Both DOTTIEs listed Waste-water under the section entitled “Members Notified.” J. M. Drilling offered no evidence indicating that Wastewater actually received notification from Louisiana One Call. Therefore, Wastewater’s argument regarding lack of notice, supported by Savoy’s affidavit, remained undisputed at the hearing. We find no error with the trial court’s finding in this regard.

J. M. Drilling also submitted into evidence three additional DOTTIEs, i.e., Louisiana One Call System Ticket Numbers 150049468, 150086745, and 1501225566, which were requested by J. M. Drilling on February 4, 2015, March 13, 2015, and March 26, 2015, for work to be performed at the intersection of Meadow Gate Drive and Timber Bark Road. The work was to occur from February 9, 2015 through March 1, 2015, from March 6, 2015 through March 26, 2015, and from March 31, 2015 through April 20, 2015. Unlike the two DOTTIEs |7requested by Gulfgate Construction, Wastewater was not listed as a member to be notified on the three DOT-TIEs requested by J. M. Drilling. The trial court recognized that a duty cannot be breached if the duty did not exist, by stating:

You can’t mark the line if you’re not notified to mark the line. First you have to say, I’m somebody who needs to be notified. If I’m notified I know I have to mark the line. If they did not receive any notification, then how do they know to mark the line. They didn’t know to mark the line, they didn’t breach that duty to mark the line after being notified.

The trial court did not err in this regard.

Accordingly, J. M. Drilling’s first assignment of error is without merit.

II. Second Assignment of Error:

In its second assignment of error, J. M. Drilling contends the trial court erred in granting Wastewater’s Motion for Summary Judgment as the question of whether its failure to mark its lines was a concurrent, causal factor to the injury suffered by Thibodeaux is a question of fact that the jury should decide.

In opposition, Wastewater contends that even if it breached any purported duty, that breach failed to cause any damage because J. M. Drilling knew or should have known of the underground main line even though it was unmarked. At trial, Waste-water offered into evidence the deposition testimony of Kevin Elfring, J. M. Drilling’s Supervisor/Project Manager. Elfring explained that J. M. Drilling, an authorized dealer for AT & T, is a fiber optic communication company that provides directional drilling and also buries communication wires. According to Elfring’s testimony, his involvement with J. M. Drilling’s work on the property in February 2015 included organizing it, laying it out, and getting the equipment to the site. Elfring explained that the project’s plans included a lift station and a manhole cover, which meant that a main line was also present on the property. Elfring | «testified that protocol requires Louisiana One Call to be notified in order to have a sewer line marked. He indicated that if it was unmarked despite Louisiana One Call being notified, the next step would be to identify the owner of the lift station, call them, and ask them to mark the line.

Elfring’s testimony is supported by the deposition testimony of Gulfgate Construction employees, John Smith and Harold Broussard, submitted into evidence at the hearing by Wastewater. Smith stated that the property at issue was a utility lot, which means a contractor must be more cautious and more aware of digging because of the existence of things buried undergound. He revealed the existence of the lift station and manhole cover meant the existence of a sewer line. Smith agreed that even if lines are not marked despite a DOTTIE request, any person in the business should recognize that caution should be used. Smith further recalled seeing a white, two-inch polyvinyl chloride (PVC) pipe as he was digging a hole.

Broussard testified that the existence of a lift station on the property meant that a sewer line likely existed underground and ran from the back of the fence to the road. He stated that a person digging and excavating needed to use caution because of the existence of lines running throughout the property. Broussard noted his boss told him that “there was a pipe there, two-inch pipe, just to be careful.”

Wastewater also submitted the deposition testimony of Adam Romero, another Gulfgate Construction employee. Romero testified that he worked with Smith in January 2015 on the property. According to his testimony, Romero was aware of the lift station, which meant there would be lines running from it to the street. Romero agreed that anybody in the business would need to exercise caution to prevent hitting underground pipes, regardless of whether they were marked or [ 9unmarked. Romero recalled digging the hand hole with Smith and discovering a two-inch PVC pipe. According to Romero’s testimony, upon uncovering the pipe, they called their supervisor, Kelly Vice.

The foregoing testimony and evidence shows that any purported breach by Wastewater did not cause any damage to Thibodeaux because J. M. Drilling knew or should have known of the underground main line even though it was unmarked. The trial court did not err in this regard.

Accordingly, J. M. Drilling’s second assignment of error is without merit.

III. Third Assignment of Error:

In its third assignment of error, J. M. Drilling contends the trial court erred in granting Wastewater’s Motion for Summary Judgment based, in part, on the status of Louisiana One Call as a non-defendant. J. M. Drilling’s alleged error is based upon the trial court’s statement at the hearing, as follows: “If Louisiana One Call were also a defendant, then your motion for summary judgment-should be denied.”

In this case, a reading of the entire trial court transcript indicates that its ultimate decision was not based- upon the trial court’s one-sentence statement made at the beginning, and prior to' hearing all of the evidence. Rather, it was made at the end of hearing' all of the evidence and testimony. The trial court dismissed Wastewater based upon Thibodeaux and/or J. M. Drilling’s failure to prove the required elements under the duty-risk analysis. We find the trial court did not err in this regard.

Accordingly, J. M. Drilling’s third assignment of error is without merit. .

DECREE

The trial court’s judgment in favor of Defendant/Appellee, Water & Wastewater Utilities, Inc., is affirmed. All costs of this appeal are. assessed to Defendant/Appellant, J. M. Drilling LLC.

AFFIRMED.


author: COOKS, Judge.

text:
    James C. PERKINS, et al v. Andrew J. FOWLER, et al Andrew J. Fowler, et al v. James C. Perkins, et al
    17-392
    17-393
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017

      Richard A. Rozanski,' Wheelis & Rozan-ski, 2312 South MacArthur Drive,.Alexandria, LA 71315, (318) 445-5600 COUNSEL FOR PLAINTIFF/APPELLANT: James C. Perkins
    Brian K. Thompson, Thompson Law Firm, LLC 3600 Jackson Street, Suite 115B, Alexandria, LA 71303, (318) 473-0052, COUNSEL FOR ' DEFENDANT/APPELLEE: Andrew J. Fowler
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J, Gremillion, Judges.
   COOKS, Judge.

IpThis appeal arose from the trial court’s judgment in favor óf defendants/appéllees, Andrew Fowler and the Unopened Succession of Blanch’ Deramus Fowler, granting the motion for summary judgment recognizing their right to the possession of a thirty-two foot tract 'of land. For the following reasons, we révérse the judgment of the trial court and’remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 12,1963, James C. Perkins and Emily L. Perkins, purchased a 10.2 acre tract of land located in Lecompte, Louisiana. The Perkins' established this property as their homestead, clearing the land and building a home. They maintained a constant presence on the land from that date to the present.

In 2014, Andrew Fowler, who lived on land next to the Perkins, began removing fencing and trees oh property the Perkins alleged belonged to them. The" Perkins eventually contacted the Rapides Parish Sheriffs Department in connection with this activity. In connection with this, on June 11, 2014, James C. Perkins, as Trustee of the Living Trust of James and Emily Perkins, filed a “Petition for Possession) Temporary Restraining Order, Preliminary and Permanent Injunction and Damages.” At issue was a thirty-two foot strip of land that bordered the Perkins property on the south side. In the possessory action, it was claimed the Perkins had been in “actual physical, corporeal possession, with the intent as owner”.of the property in question “for a period in excess of one (1) year prior to any disturbance in fact by Defendant.” A Temporary Restraining Order and Rule to Show Cause was issued by the district court On June 11, 2014. .

In their suit, the Perkins claimed that, for seventy years, there existed a barbed wire fence encompassing the Perkins’ tract of land. They further asserted this fence was maintained and utilized by them, but that over time trees began to grow along the property line, and the fence began to decay. They assert the tree Inline essentially became the fence line of the property, and they would connect the barbed wire fence to the trees to keep it upright. They maintained at all times they have lived on the property and possessed up to the tree line as owners.

In response, Fowler answered the Perkins suit and also, on October 14, 2014, Fowler filed a separate “Petition for Possession, Preliminary and Permanent Injunction and Damages.” In that suit, Fowler claimed a disturbance in corporeal possession as the owner of five contiguous tracts of land located in Rapides Parish and including the thirty-two foot strip of land in question.

The two suits were consolidated by the district court as set forth in the petition. Thereafter, the Perkins filed an amended petition asserting they were “owners” of the property and further prayed for relief “declaring petitioner to be the exclusive owner of all of the land enclosed by the boundaries set forth on the Phillips survey and in accordance with petitioners recorded title.”

On December 5, 2016, Fowler filed a Motion for Summary Judgment, contending that there was no disputed material facts that Perkins converted his possesso-ry action to a petitory action and therefore, pursuant to La.Code Civ.P. art. 3567, judicially confessed Fowler’s possession of the disputed property. Perkins filed an opposition to Fowler’s motion for summary judgment, maintaining the original posses-sory action was converted into a declaratory action that did not confess possession in the adverse party.

The parties each introduced surveys that were conflicting as to who owned the thirty-two foot strip of land, as well as memoranda in support of their respective positions on whether summary judgment was appropriate. After a hearing on the motion, the trial court rendered judgment in favor of Fowler as to the thirty-two foot strip of land. No reasons for judgment were issued.

Perkins has appealed the judgment of the trial court, asserting the following assignments of error:

|41. The trial court erred as a matter of law in finding that Perkins converted his possessory action to a petitory action.
2. The trial court erred in finding there were no questions of material fact as to the thirty-two foot strip of land.

ANALYSIS

When an appellate court reviews the grant of a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Gray v. Am. Nat. Prop. & Cas. Co., 07-1670, p. 6 (La. 2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638). The motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(A)(3).

The burden of proof is on the mover, unless that party would not bear the burden of proof at trial. La.Code Civ.P. art. 966(D)(1). The mover need only show “an absence of factual support for one or more elements essential to the adverse party’s claim.” Id. The burden then shifts to the adverse party who must demonstrate that he will in fact meet his evidentiary burden at trial. Id.

In his first assignment of error, the Perkins claim the trial court erred as a matter of law in finding that they converted the possessory action into a petitory action, thus judicially confessing possession of the disputed property to Fowler, the adverse party.

A possessory action is an action by the possessor of immovable property to maintain or regain possession of that property following a disturbance or an eviction of his or her possession. La.Code Civ.P. art. 3665. A petitory action is an action by a person claiming ownership of immovable property that is currently in | athe possession of another, who also claims ownership. La.Code Civ.P. art. 3651. Importantly, in order for an action to be classified as petitory, the plaintiff would have to be claiming both ownership and lack of possession. Louisiana Code of Civil Procedure Article 3657 details the interrelation between possessory and petitory actions, and reads as follows:

The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the possessory action is abated.
When, except as provided in Article 3661(l)-(3), the defendant in a possesso-ry action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.
If, before executory judgment in a possessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possesso-ry action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.

The statute provides when both a posses-sory action and a petitory action are asserted in the same suit or pled in the alternative, the possessory action is waived. As this court noted in Blaise v. Smith, 01-1512, p. 3 (La.App. 3 Cir. 3/6/02), 809 So.2d 1253, 1255, “[ujnder La.Code Civ.P. art. 3651, a petitory action is one brought by a person who claims ownership of immovable property — ⅞/½⅞ he is not in possession of the property himself— against another person who is in possession of the property or who claims ownership of the property adversely, in order to obtain a judgment to recognize his ownership.” (Emphasis added.) In this case, we find the Perkins amended petition was not a petitory action, as they never asserted they lacked possession in the property and, in fact, maintained they have had continuous possession over the disputed area since 1963.

Further, as the Perkins point out, Louisiana law has recognized that a plaintiff in possession of the property can bring an action for declaratory judgment, 1 (¿hereby raising issues of possession and ownership.in the same action. Lafourche Realty Co., Inc. v. Duard Eymard Co., Inc., 93-1278 (La.App. 1 Cir. 6/24/94), 638 So.2d 1138, writ denied, 94-1991 (La. 11/11/94), 644 So.2d 390; Liner v. Terrebonne Parish Sch. Bd., 519 So.2d 777 (La. App. 1 Cir.1987), writ denied, 521 So.2d 1173 (La.1988), cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988). The Perkins’ amended petition was titled “First Amended Petition for Judicial Fixing of Boundary, Declaratory Judgment, Preliminary and Permanent Injunction, Trespass and Damages.” We agree with the Perkins’ argument that this petition changed the action from one of possession to one for Declaratory Judgment, seeking a judgment from the court declaring that they can maintain the possession that they currently enjoy without disturbance.

Accordingly, we find the trial court erred in finding the Perkins’ amended petition converted their initial possessory action into a petitory action, thus judicially confessing ownership of the disputed property to Fowler. Without that judicial confession, which by law would constitute full proof against the party that made it, the record clearly contains material issues of fact as to possession of the thirty-two foot strip of land. The record contains conflicting surveys with different boundary lines, as well as disputes over Fowler’s actual possession of the disputed area. Therefore, summary judgment was inappropriate in this matter, and the judgment must be reversed.

DECREE

' For the foregoing reasons, the judgment of the trial court granting the motion for summary judgment is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed against appellees, Andrew Fowler and the Unopened Succession of Blanch Deramus Fowler.

REVERSED AND REMANDED.