Opinion
NO. 2016 CW 0395
05-31-2016
JOHNNY DAY AND CARROLL DAY v. CLESTER M. FEAST, O'REILLY AUTOMOTIVE STORES, INC., SAFETY NATIONAL CASUALTY CORPORATION, HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY AND XYZ INSURANCE COMPANY
In Re: O'Reilly Automotive Stores, Inc. and Safety National Casualty Corporation, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 641,247. BEFORE: McDONALD, McCLENDON AND THERIOT, JJ.
WRIT DENIED IN PART AND GRANTED IN PART. The district court acted within its discretion in allowing the Plaintiffs' Partial Motion for Summary Judgment to be heard. La. Code Civ. P. art. 966 (prior to amendment by Acts 2015, No. 422, §1). It further acted within its discretion in admitting videotape surveillance footage in connection with the supporting summary judgment materials. La. Code of Evid. art. 901. La. Code of Evid. Art 1003. See also State v. Spradley, 97-2801 (La. App. 1st Cir. 11/6/98), 722 So.2d 63. However, the district court abused its discretion and erred in striking the deposition testimony of Corporal Tremaine Smith. La. Code of Evid. art. 701. See Rideau v. State Farm Mut. Auto. Ins. Co., 2006-0894 (La. App. 1st Cir. 8/29/07), 970 So.2d 564. After conducting a de novo review, we conclude there remain genuine issue(s) of material fact pertaining to apportionment of fault between the parties, and Plaintiffs, Johnny Day and Carroll Day, are not entitled to judgment as a matter of law with regards to liability. La. Code Civ. P. Art. 966 (prior to amendment by Acts 2015, No. 422, §1). See also Freeman v. Teague, 37,932 (La. App. 2d Cir. 12/10/03), 862 So.2d 371, 373. Accordingly, we hereby grant the writ application, in part, and reverse the judgment of the trial court signed on March 15, 2016, which granted the partial motion for summary judgment and rendered judgment against Defendants declaring Defendants liable for all injuries suffered by Plaintiffs. We further vacate the order declaring that Plaintiffs may not be considered in any subsequent allocation of fault, and that evidence may not be admitted at any subsequent trial to establish any fault of the Plaintiffs.
MRT
JMM
McClendon, J., concurs in part and dissents in part. I dissent as to the majority's admission of the videotape surveillance footage; however, I concur with all other aspects of the ruling. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT