Opinion
No. 2022-C-00166
03-15-2022
Fred TUCKERSON v. AMTRUST INSURANCE COMPANY and Avondale Container Yard, L.L.C.
Writ application denied.
Hughes, J., would grant.
Genovese, J., would grant and assigns reasons.
Griffin, J., would grant.
Genovese, J., would grant this writ for the following reasons:
Plaintiff, a commercial truck driver, alleges personal injury to his wrist when his 18-wheeler truck and trailer, struck a pothole as he drove into Defendant's entrance road to pick up a chassis and container equipment. Defendant's entrance road is primarily dirt and gravel with "low spots" due to numerous 18-wheelers traversing said road.
Defendant is Avondale Container Yard, LLC, and its insurer, Associated Industries Insurance Company. Amtrust Insurance Company, an originally named defendant, was determined to be the incorrect insurer for Avondale.
Rain was a factor that day as Plaintiff stated there were potholes filled with muddy water which camouflaged said potholes. Plaintiff maintained he could not see the potholes because they were filled with muddy water. Defendant was aware of the poor condition of road, as it had employees whose job it was to specifically identify the low spots, to maintain the yard, and to divert water away from said road.
Upon Plaintiff filing suit, Defendant(s) filed a motion for summary judgment, which was granted by the trial court, with writs denied by the court of appeal, predominately based upon the "age old" defense of the road conditions being "open and obvious."
It is undisputed that the road was replete with potholes and that a considerable amount of truck traffic traversed this road as one of the main access roads to Defendant's yard. Additionally, Defendant had notice of the dangerous condition of the road, as it had a special employee supervise and maintain the road — and it will rain in Louisiana on a regular basis.
There are open, obvious, and genuine issues of material fact in this case which preclude a grant of summary judgment; however, the condition of this roadway is not open and obvious.
Query: How can a road full of potholes and full of muddy water be open and obvious without bionic vision? How can one see that which is invisible, and yet satisfy the legal requirement of being open and obvious to everyone?
In addition to there being genuine issues of material fact as to whether the rain-filled road constituted an open and obvious condition, there also exists an issue of comparative fault, all of which defeats a grant of summary judgment.
I would grant this writ, reverse the lower courts’ grant of summary judgment in favor of Defendant(s), and remand for further proceedings.