Opinion
2015 CA 0956 C/W 2015 CA 0957
05-10-2016
LACHONA CHARLES, TRANIKA CHARLES, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, QU'VON CHARLES v. TRAVELERS INDEMNITY COMPANY, JOHN GUIDRY, CINTAS CORPORATION NO. 2, LATRICIA CHARLES ROBINSON, AND PROGRESSIVE GULF INSURANCE COMPANY LATRICIA ROBINSON CHARLES v. TRAVELERS INDEMNITY COMPANY, JOHN GUIDRY, AND CINTAS CORPORATION NO. 2
Lloyd N. Frischhertz Marc L. Frischhertz New Orleans, LA Attorneys for Plaintiffs/Appellants- Lachona Charles and Tranika Charles, Individually and o/b/o Qu'Von Charles Trenton J. Oubre James R. Raines Chris D. Billings Joseph J. Cefalu, III Baton Rouge, LA Attorneys for Defendants/Appellees- Travelers Indemnity Company, John Guidry, and Cintas Corporation No. 2
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. C617022 c/w C617023 The Honorable William Morvant, Presiding Lloyd N. Frischhertz
Marc L. Frischhertz
New Orleans, LA Attorneys for Plaintiffs/Appellants-
Lachona Charles and Tranika Charles,
Individually and o/b/o Qu'Von
Charles Trenton J. Oubre
James R. Raines
Chris D. Billings
Joseph J. Cefalu, III
Baton Rouge, LA Attorneys for Defendants/Appellees-
Travelers Indemnity Company, John
Guidry, and Cintas Corporation No. 2 BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
This is an appeal of a summary judgment dismissing plaintiffs' personal injury and property damage claims arising out of an automobile accident. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The accident giving rise to this litigation occurred in Slidell, Louisiana on U.S. Highway 190 ("Gause Boulevard" or "Gause") at its intersection with South Carnation Street. At this location, Gause Boulevard is comprised of three lanes: a westbound lane, an eastbound lane, and a two-way center turn lane. South Carnation Street is a two-way street that is controlled by a stop sign at its intersection with Gause Boulevard.
On November 16, 2011, Lachona Charles, Tranika Charles, and Tranika's minor son, Qu'Von Charles, were passengers in an automobile owned and operated by Latricia Robinson. Ms. Robinson was proceeding down South Carnation Street. When she reached the stop sign at its intersection with Gause Boulevard, she stopped. Ms. Robinson intended to make a left turn onto Gause Boulevard. This required her to first traverse the eastbound and center lanes of Gause before completing her left turn into its westbound lane. At that time, traffic in the eastbound lane of Gause was backed up and stopped at the point of the intersection; however, a vehicle had left a "gap" allowing Ms. Robinson to enter Gause's eastbound lane.
In the record, Latricia Robinson is inconsistently referred to as both "Latricia Charles Robinson" and "Latricia Robinson Charles." While her deposition indicates her name to be "Latricia Charles Robinson," the traffic accident report, the answer filed by her liability insurer, and the judgment appealed from refer to her simply as "Latricia Robinson."
At the same time, Cintas Corporation employee, John Guidry, was driving a large delivery truck eastbound on Gause en route to his next client, Five-Minute Oil Change, located on Gause at or near its intersection with South Carnation. Just before reaching the intersection with South Carnation, Mr. Guidry entered the center turn lane in order to make a left turn into its private driveway, located almost immediately after the intersection. After entering the center turn lane, Mr. Guidry saw Ms. Robinson proceed into the "gap" between vehicles and enter the eastbound lane of Gause. Mr. Guidry stated that while doing so, Ms. Robinson looked only to her right and never looked in his direction. When he realized that she was going to continue into the center turn lane nonetheless, he sounded his horn and "slammed on" or "locked up" his brakes in an attempt to avoid a collision. He stated that he was almost at a complete stop when Ms. Robinson, still unaware of his presence, accelerated into the center turn lane hitting the front corner of his vehicle. According to Ms. Robinson, she had fully entered the center lane and stopped when Mr. Guidry's vehicle struck her vehicle. She conceded there was nothing obscuring her view; however, she reportedly never saw Mr. Guidry's large delivery truck prior to the impact.
According to the pleadings, the name of the entity is actually Cintas Corporation No. 2.
The Cintas truck was described as being similar in size to a 15-passenger van.
The private driveway was to a parking lot that provided access to Five-Minute Oil Change and other business establishments in a shopping center.
Slidell Police Officer Ronnie Gonzales responded to the scene to investigate the accident. According to Officer Gonzales, both vehicles sustained only minor, cosmetic damage, perhaps no more than a scratch. He concluded that Mr. Guidry had the right-of-way and was proceeding lawfully in the center turn lane of Gause at the time the accident occurred, and that Mr. Guidry was not at fault for the accident. Rather, Officer Gonzales averred that Ms. Robinson was solely at fault for the accident for failing to yield and/or disregarding a traffic control device (the stop sign). Although Officer Gonzales noted Ms. Robinson's violation in the accident report, he did not issue her a citation for the violation.
Officer Gonzales arrived at the scene within minutes of the accident and before the vehicles were moved. A police officer who responds to an automobile accident is qualified to give an opinion as to who caused the accident based on his police report, where his opinion is rationally based on his perceptions of the accident scene and the parties' accounts of what occurred, and his opinion is helpful to the determination of a fact at issue. Smith v. Direct Gen. Ins. Co. of Louisiana, 2012-1018, p. 2, n.6 (La.App. 1 Cir. 4/29/13) (unpublished opinion); see also La. C.E. art 701. Herein, the movers for summary judgment as well as the adverse parties submitted deposition testimony given by Officer Gonzales, without any objection. See La. C.C.P. art. 966(F)(2) (prior to its amendment by 2015 La. Acts, No. 422, § 1).
On November 15, 2012, Lachona Charles and Tranika Charles, individually and on behalf of her minor son, Qu'Von Charles, (collectively, the "Charles plaintiffs") filed a personal injury suit against Mr. Guidry, his employer Cintas, and their insurer, Travelers Indemnity Company (Travelers) (collectively, the "Cintas defendants") and against Ms. Robinson and her insurer, Progressive Gulf Insurance Company (Progressive). Specifically, they alleged that Mr. Guidry was at fault for the accident, or, "[a]lternatively," that Ms. Robinson was "also" at fault. That same day, Ms. Robinson filed a separate personal injury and property damage suit against the Cintas defendants also alleging that Mr. Guidry was at fault for the accident. By order dated February 8, 2013, the two cases were consolidated. Ms. Robinson and the Cintas defendants responded to the Charles plaintiffs' suit generally denying liability and asserting the fault of the other driver.
In addition, Cintas and Travelers filed a reconventional demand against Ms. Robinson seeking property damages based on their assertion that she was at fault for the accident. The record does not contain an answer by Ms. Robinson to this reconventional demand, nor is it referred to any further in the record before us. Thus, we are unable to ascertain whether this action remains pending.
After entering into a settlement agreement with Ms. Robinson and Progressive, the Charles plaintiffs dismissed their claims against them on December 9, 2013. Subsequently, the Cintas defendants filed a motion for summary judgment seeking dismissal of all claims asserted against them by Ms. Robinson and the Charles plaintiffs.
In support of their motion, the Cintas defendants alleged that none of the plaintiffs would be able to establish either a duty or a breach of a duty on Mr. Guidry's part. Citing La. R.S. 32:123, they argued that it was Ms. Robinson who had the duty to yield the right-of-way to Mr. Guidry, and that, even accepting her version of events, she clearly breached this duty. In support of their motion, the Cintas defendants submitted the deposition of Officer Gonzales, excerpts from Mr. Guidry's deposition, and excerpts from Ms. Robinson's deposition, as well as a marked aerial image of the intersection where the accident occurred. A hearing on the motion was set for March 30, 2015.
Ms. Robinson did not oppose the Cintas defendants' motion for summary judgement. On March 20, 2015, the Charles plaintiffs faxed their opposition memorandum (opposition) to the clerk's office. Therein, they argued that Mr. Guidry had a duty pursuant to La. R.S. 32:82 and 32:76, and that the facts, or the inferences to be drawn from the facts, indicated that Mr. Guidry breached those duties and, consequently, should be assessed with a percentage of fault. Except for two additional pages from Mr. Guidry's deposition and a slightly different marked aerial image of the scene, the evidence submitted by the Charles plaintiffs was the same as that previously submitted by the Cintas defendants in support of their motion.
In response, the Cintas defendants filed a reply memorandum arguing that La. R.S. 32:82 and 32:76 , by their express terms, did not apply to Mr. Guidry, who had properly entered the center turn lane for the purposes of making a left turn into a private driveway. They further argued that the Charles plaintiffs had failed to submit any actual evidence to create a genuine issue of material fact. On the contrary, they pointed out that the Charles plaintiffs had essentially submitted evidence duplicative of their own and asserted that the Charles plaintiffs' opposing arguments were simply attempts to distort that evidence with unsupported allegations and conjecture.
Upon receiving a copy of the Cintas defendants' reply memorandum, the trial court was perplexed; it was unaware of any opposition by the Charles plaintiffs. The Charles plaintiffs had failed to furnish the trial court with a copy of their opposition as required by District Court Rule 9.9. Upon making inquiries, the trial court was advised that an opposition had been fax filed and was further advised that the clerk's office had not yet received the original or the required fees and, thus, had not "processed" it. When informed of this by the trial court at the hearing, counsel for the Charles plaintiffs simply responded that he was unaware that the opposition had been fax filed. He did not request that the trial court grant a continuance so that he could resolve the issue. Consequently, the trial court ruled that the Charles plaintiffs had forfeited oral argument, and that the Cintas defendants' motion would be considered unopposed. Following brief argument by the Cintas defendants, the trial court concluded that even accepting Ms. Robinson's version of how the accident occurred, she had clearly breached her duty under La. R.S. 32:123 to yield the right-of-way to Mr. Guidry and to make her turn only when she could safely do so. Thus, the trial court granted summary judgment in favor of the Cintas defendants and dismissed Ms. Robinson's and the Charles plaintiffs' claims against them, with prejudice.
The following day, the clerk's office "processed" the Charles plaintiffs' original opposition, recording thereon that that the fax copy had been received on March 20, 2015, and the original had been received on March 31, 2015, the day after the hearing and the trial court's ruling.
Soon thereafter, the Charles plaintiffs filed a motion for new trial, contending that the trial court had erred in treating the Cintas defendants' motion for summary judgment as unopposed. The Charles plaintiffs maintained that they had properly fax filed their opposition and had timely forwarded the original and the required fees in accordance with La. R.S. 13:850. They asserted that, contrary to the notation that had been made on the original, the clerk's office had actually received it on March 25, 2015, as reflected by the postal service return-receipt card, a copy of which was attached to their motion. Furthermore, they claimed that their opposition established the existence of genuine issues of material fact precluding summary judgment. Hence, they claimed that peremptory and discretionary grounds existed for the trial court to grant a new summary judgment hearing and consider their opposition.
The trial court denied the Charles plaintiffs' motion for new trial, specifically noting that, with respect to the motion for summary judgment, they had failed to comply with "Rule 9.9(b) [which] requires the party opposing a motion to furnish the trial judge with an opposition memo at least 8 days before the hearing." The Charles plaintiffs now appeal the summary judgment dismissing their claims against the Cintas defendants, as well as the denial of their motion for new trial whereby they sought consideration of their opposition to the motion for summary judgment.
DISCUSSION
Motion for New Trial
The denial of a motion for a new trial is an interlocutory judgment and, thus, is not independently appealable. See La. C.C.P. art. 2083(C); Nelson v. Teachers' Retirement System of Louisiana, 2010-1190 (La.App. 1 Cir. 2/11/11), 57 So.3d 587, 589, n.2. However, when a party has appealed from a final judgment, as is the summary judgment in this case, an appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment itself. Rao v. Rao, 2005-0059 (La.App. 1 Cir. 11/4/05), 927 So.2d 356, 360, writ denied, 2005-2453 (La. 3/24/06), 925 So.2d 1232.
A new trial should be ordered when the trial court, exercising its discretion, is convinced by its examination of the facts that the judgment would result in a miscarriage of justice. Rivet v. State, Dep't of Transp. & Dev., 2001-0961 (La. 11/28/01), 800 So.2d 777, 781; Lamb v. Lamb, 430 So.2d 51, 52 (La. 1983); Pope v. Roberts, 2013-1407 (La.App. 1 Cir. 4/16/14), 144 So.3d 1059, 1065. A trial court's discretion in deciding whether to grant a new trial is great and its judgment will not be disturbed on appeal absent an abuse of that discretion. McClary v. Schiro, 2000-0305 (La.App. 1 Cir. 3/30/01), 801 So.2d 398, 403, writ denied, 2001-2126 (La. 11/2/01), 800 So.2d 878. Regardless of its reasons for judgment, if the trial court reached the proper result, the judgment should be affirmed. See Falkner v. Am. First Ins. Co., 2014-0760, p. 2 (La.App. 1 Cir. 12/23/14) (unpublished opinion); Elliott v. Elliott, 2010-0755 (La.App. 1 Cir. 9/10/10), 49 So.3d 407, 416, n.3 writ denied, 2010-2260 (La. 10/27/10), 48 So.3d 1088.
On appeal, the Charles plaintiffs cite discretionary grounds for a new trial set forth in La. C.C.P. art 1973, as well as peremptory grounds pursuant to La. C.C.P. art. 1972(1) and (2); however, they offer no argument with respect to the elements of La. C.C.P. art. 1972(2). See Thomas v. Comfort Ctr. of Monroe, LA, Inc., 2010-0494 (La.App. 1 Cir. 10/29/10), 48 So.3d 1228,1240; see also Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(4). Even so, we find that neither La. C.C.P. art. 1972(1) nor (2) is applicable herein. With respect to La. C.C.P. art. 1972(1), we note that no additional evidence may be presented, Rivet v. State, Dep't of Transp. & Dev., 2001-0961 (La. 11/28/01), 800 So.2d 777, 781, thus precluding the Charles plaintiffs from submitting any evidence regarding their filing. Additionally, with respect to La. C.C.P. art. 1972(2), not only did the Charles plaintiffs fail to submit the verifying affidavit required by La. C.C.P. art. 1975, but the information relative to their filing was not new evidence that they were, in the exercise of due diligence, unable to obtain before or at the hearing. Accordingly, that leaves La. C.C.P. art. 1973 as the Charles plaintiffs' sole recourse for obtaining a new trial. Under that article, a new trial should be granted when an examination of the facts shows that the judgment would result in a miscarriage of justice. See Lawson v. Mitsubishi Motor Sales of Am., Inc., 2005-0257 (La. 9/6/06), 938 So.2d 35, 54.
Some of the Charles plaintiffs' arguments on appeal are directed at the trial court's reasons for denying their motion for new trial; however, it is well-settled that appeals are taken from judgments, not reasons for judgment. See Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572.
Even assuming that the Charles plaintiffs' opposition to the motion for summary judgment was entitled to consideration (and the three additional pages of evidence attached thereto were deemed admitted), we cannot say that the trial court's denial of their motion for new trial constituted an abuse of discretion or resulted in a miscarriage of justice. Our comprehensive, de novo review of all of the summary judgment evidence, including the Charles plaintiffs' opposition, reveals that the trial court reached the correct result; a new trial on the motion for summary judgment would not have resulted in a different outcome. See Stout v. Nehi Bottling Co., 146 So. 720, 721 (La.App. 1 Cir. 1933); Caceres v. United Auto. Ins. Co., 2014-0418 (La.App. 4 Cir. 11/5/14), 154 So.3d 584, 590. As demonstrated below, the Charles plaintiffs' opposition was insufficient to defeat the Cintas defendants' well-supported motion for summary judgment.
At the time the motion for summary judgment was filed, La. C.C.P. art. 966(F)(2), provided:
Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.
In their brief to this court, the Charles' plaintiffs expressly request that we review all evidence de novo and render a ruling with respect to the summary judgment as opposed to remanding for a new trial.
Motion for Summary Judgment
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Co-op., Inc., 2001-2956 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Appellate courts review summary judgments de novo using the same criteria that govern a trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2) (prior to its amendment by 2015 La. Acts, No. 422, §1).
According to the provisions of 2015 La. Acts, No. 422, § 2, the amendment of La. C.C.P. art. 966 "shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date." Because this matter was pending appellate review on January 1, 2016, the effective date of the act, we apply the prior version.
A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one on which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765-66. An issue of negligence or comparative fault may be decided on a motion for summary judgment, provided that the evidence leaves no relevant, genuine issue of fact, and reasonable minds must inevitably conclude that the mover is entitled to judgment based on the facts before the court. See Blacklege v. Font, 2006-1092 (La.App. 1 Cir. 3/23/07), 960 So.2d 99, 102; Douglas v. Lemon, 2011-0084, p. 3 (La.App. 1 Cir. 6/10/11) (unpublished opinion); Smith v. Casino New Orleans Casino, 2012-0292 (La.App. 4 Cir. 10/3/12), 101 So.3d 507, 511.
The burden of proof on a motion for summary judgment remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Richard v. Liberty Mut. Ins. Co., 2013-26 (La.App. 3 Cir. 10/9/13), 123 So.3d 345, 349; Sears v. Home Depot, USA, Inc., 2006-201 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 2006-2747 (La. 1/26/07), 948 So.2d 168. See also Carter v. BRMAP, 591 So.2d 1184, 1190 (La.App. 1 Cir. 1991).
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488 (La. 4/23/04), 874 So.2d 131, 137; Dyess v. American Nat'l Prop. and Cas. Co., 2003-1971 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451, writ denied, 2004-1858 (La. 10/29/04), 885 So.2d 592.
Substantive Law
Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis. Hanks v. Entergy Corp., 2006-477 (La. 12/18/06), 944 So.2d 564, 579. For liability to attach under this analysis, a plaintiff must 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's conduct failed to conform to the appropriate standard of care; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiffs injuries; and (5) the plaintiff was damaged. Brewer v. J.B. Hunt Transport, Inc., 2009-1408 (La. 3/16/10), 35 So.3d 230, 240; Hanks, 944 So.2d at 579. A negative answer to any of the inquiries results in a determination of no liability. Hanks, 944 So.2d at 579.
In this case, the Cintas defendants' motion for summary judgment pointed out that the Charles plaintiffs lacked factual evidence to establish the essential element of a breach of duty on the part of Mr. Guidry. On the contrary, they argued it was Ms. Robinson who breached her duty pursuant to La. R.S. 32:123 to stop and yield the right-of-way to Mr. Guidry.
Louisiana Revised Statutes 32:123 defines the duty of a motorist approaching an intersection regulated by a stop sign. It provides, in part:
A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.The jurisprudence makes it abundantly clear that stopping is only half the duty, the other half is to assess traffic and make certain the way is clear before proceeding. See Toston v. Pardon, 2003-1747 (La. 4/23/04), 874 So.2d 791, 802; Irion v. State ex rel. Dep't of Transp. and Dev., 1998-2616 (La.App. 1 Cir. 5/12/00), 760 So.2d 1220, 1231, writ denied, 2000-2365 (La. 11/13/00), 773 So.2d 727. Furthermore, a left turn is one of the most dangerous maneuvers a driver can execute, and, before attempting same, a driver must ascertain whether it can be completed safely. Toston, 874 So.2d at 802.
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 crosswalk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting 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. [Emphasis added.]
Before the amendment of La. R.S. 32:123(B) by 2012 La. Acts, No. 811, § 9, "right-of-way" read "right of way" and "crosswalk" read "cross walk."
At the time the accident occurred, Ms. Robinson was in the process of executing a left turn. However, Mr. Guidry had not yet reached the private driveway where he intended to make his left turn.
In contrast, the driver with the right-of-way has a minimal duty. See Solomon v. Am. Nat. Prop. and Cas. Co., 49,981 (La.App. 2 Cir. 9/4/15), 175 So.3d 1024, 1028. As the supreme court stated in Sanchez Fernandez v. General Motors Corp., 491 So.2d 633, 636 (La. 1986):
A motorist on a [right-of-way] street is entitled to assume that motorists on the unfavored street approaching a stop sign will obey the traffic signal and will stop, look and yield the [right-of-way] to traffic proceeding on the favored street. Of course, once a [right-of-way] motorist in the exercise of ordinary vigilance sees that another motorist has failed to yield the [right-of-way], a new duty thereafter devolves on the [right-of-way] motorist to take reasonable steps to avoid an accident if there is enough time to afford him a reasonable opportunity to do so. [Citation and footnote omitted.]Thus, a lawfully proceeding driver with the right-of-way is under a duty of ordinary care to the intruding vehicle. See Solomon, 175 So.3d at 1028; James v. DHL Exp. (USA), Inc., 2010-0581, p. 3 (La.App. 1 Cir. 10/29/10) (unpublished opinion). It is only in the exceptional case where the favored motorist could have avoided the accident by the exercise of the "slightest degree of care" that he will be considered negligent. Triche v. Commercial Union Ins. Co., 329 So.2d 784, 787 (La.App. 1 Cir. 1976); Edwards v. Pierre, 2008-0177 (La.App. 4 Cir. 9/17/08), 994 So.2d 648, 655; Valin v. Barnes, 550 So.2d 352, 356 (La.App. 3 Cir.), writ denied, 552 So.2d 399 (La. 1989). The burden of proving such is on the intruding driver. See James, 2010-0581 at p. 3; McGee v. Miears, 516 So.2d 1241, 1243 (La.App. 2 Cir. 1987).
Analysis
The evidence submitted by the Cintas defendants in support of their motion for summary judgment established that South Carnation Street is controlled by a stop sign. Thus, Gause Boulevard is the favored roadway, and traffic on Gause has the right-of-way. See La. R.S. 32:123(A).
The evidence further established that Mr. Guidry was proceeding lawfully in the center turn lane of Gause prior to and at the time of the accident. Specifically, the undisputed evidence showed that Mr. Guidry intended to make a left turn from Gause Boulevard into a private driveway located just after the South Carnation intersection. Mr. Guidry testified that he entered the center turn lane before the intersection and was in the lane only a few seconds before the accident occurred. Although, at that time, the positive law lacked a bright-line rule regarding the distance a driver may lawfully proceed in a center turn lane before executing his turn, Officer Gonzales stated that the "rule of thumb" was that a driver should enter the center turn lane no more than 200 feet before his intended turn. Indeed, shortly after the accident at issue, the legislature expressly codified this construction. See La. R.S. 32:83(B)(1) (effective August 1, 2012, providing: "A vehicle shall not be driven in a two-way left-turn lane for more than two hundred feet while making a left turn from a highway[.]") Officer Gonzales testified that Mr. Guidry entered the center turn lane "well within 200 feet" of the private driveway. More precisely, he estimated that Mr. Guidry entered the center turn lane approximately 100 feet before his intended turn.
Enacted by 2012 La. Acts, No. 520, § 1.
Similarly, the marked aerial image submitted by the Charles plaintiffs depicts Mr. Guidry's entry to be less than 125 feet before the driveway. Furthermore, it is undisputed that the collision itself occurred less than 100 feet from Mr. Guidry's intended turn.
Conversely, the evidence showed that Ms. Robinson breached her duty pursuant to La. R.S. 32:123(B) to yield the right-of-way to Mr. Guidry. Unquestionably, Ms. Robinson had an affirmative duty to not only stop at the stop sign, but to also assess traffic on Gause and make certain the way was clear before proceeding. However, after the accident, Officer Gonzales observed that Ms. Robinson's vehicle was still partially in the eastbound lane of Gause indicating that although she had begun making her turn, she had not fully entered the center turn lane when the collision occurred. Obviously, she failed to make certain the way was clear before proceeding.
However, even assuming Ms. Robinson's vehicle had fully entered the center turn lane before being struck by Mr. Guidry's vehicle, as she contends, she nonetheless breached her duty under La. R.S. 32:123(B) to yield the right-of-way to Mr. Guidry's vehicle, which was approaching so closely as to constitute an immediate hazard. According to Officer Gonzales, Ms. Robinson denied seeing Mr. Guidry's vehicle prior to impact. Indeed, Mr. Guidry testified that Ms. Robinson never looked in his direction prior to entering the two-way center turn lane. This testimony was unrefuted. It is well-settled that a driver is held to have seen that which, with due diligence, he should have seen. See McCauley v. AIG Ins. Co., 2005-2061, p. 3 (La.App. 1 Cir. 12/28/06) (unpublished opinion). Ms. Robinson should have looked both ways before entering a two-way center turn lane and should have seen, and yielded to, Mr. Guidry's oncoming vehicle. Instead, she breached her duty and proceeded to make a left turn onto Gause when a reasonably prudent person would have recognized that such a maneuver could not be safely performed.
Finally, the evidence submitted by the Cintas defendants revealed that Mr. Guidry did not breach his duty of care owed to an intruding driver. As soon as he realized that Ms. Robinson was going to enter the center turn lane, he instantly "laid on [his] horn and ... locked up [his] brakes." These evasive measures certainly constituted reasonable efforts on his part to avoid a collision, and given the very minor damage that resulted, were not without effect.
In light of the foregoing, we conclude that the Cintas defendants amply satisfied their burden of proof as movers. They demonstrated that Mr. Guidry was driving his vehicle in a lawful manner and was not in breach of any duty prior to or at the time of the accident. Because the Cintas defendants established that there was an absence of factual support for one or more elements essential to the plaintiffs' negligence actions (i.e., that Mr. Guidry breached a duty), it was incumbent upon the plaintiffs to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. We cannot find that the Charles plaintiffs sustained this burden.
In their opposition, the Charles plaintiffs argued that a genuine issue of material fact exists regarding where Mr. Guidry actually entered the center turn lane. Mr. Guidry's uncontradicted testimony was that he entered it just before reaching the South Carnation intersection and seconds before the accident occurred. Although the Charles plaintiffs failed to submit any evidence to refute Mr. Guidry's assertions, they argued that an inference could be drawn that he actually entered the center lane earlier than he admitted. Specifically, they pointed to Mr. Guidry's statement that he "laid on [his] horn and ... locked up [his] brakes" when he realized Ms. Robinson was proceeding into his lane. They argued that if Mr. Guidry entered the center turn lane from a stopped position, then he could not have entered it where he claimed because he would have lacked sufficient time to build up enough speed to "lock up" his brakes. Thus, they contend that a fact finder could possibly conclude that Mr. Guidry entered the center lane further back (i.e., more than 200 feet before his turn) and thus was unlawfully travelling in the center lane in violation of La. R.S. 32:82.
The Charles plaintiffs' contention that Mr. Guidry testified that all of the contents of his truck "slammed forward" as a result of him "locking up" his brakes is incorrect. Rather, his testimony was that this occurred as a result of the collision.
The Charles plaintiffs do not directly refute or challenge the applicability of the duty, which was posited by Officer Gonzales (and is now codified in La. R.S. 32:83), that a driver may not proceed in a two-way center turn lane for more than 200 feet before making a left turn.
At the time of the accident, La. R.S. 32:82 provided:
A. Whenever any highway has been divided into two roadways by a median, physical barrier, or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right hand roadway and no vehicle shall be driven over, across or within the median, barrier or section, except through an improved opening or at a cross over or intersection established under authority of this Chapter.Prior to the 2012 enactment of La. R.S. 32:83, courts referred to La. R.S. 32:82 when determining whether a driver had improperly used the center lane for travel as opposed to executing an imminent left turn. However, as with the positive law, none of the cases applying that statute set forth a bright-line rule as to the appropriate distance a driver may proceed in the center lane before executing a turn.
B. No vehicle shall cross the painted continuous centerline of any multiple lane highway, except for the purpose of making a turn.
However, we find this argument to be fundamentally flawed for a number of reasons. First, there is no factual support for the Charles plaintiffs' insinuation that Mr. Guidry entered the center lane from a stopped position. Second, a court ruling on a motion for summary judgment must assume that all witnesses are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181, 99-2257 (La. 2/29/00), 755 So.2d 226, 23. The only exception to this general rule occurs "where the mover's testimony absolving himself from liability contains substantive contradictions or discrepancies that would ordinarily tend to call his credibility into doubt if presented to a fact-finder." Hines, 876 So.2d at 768-69. However, there are no such discrepancies in Mr. Guidry's testimony. Mr. Guidry did not testify that he entered the center lane from a stopped position. Moreover, the Charles plaintiffs failed to offer any accident reconstruction or other expert testimony regarding time, speed, distances, or braking that would substantiate their conclusory allegation. While factual inferences reasonably drawn from the evidence must be construed in favor of a party opposing the motion, see Janney v. Pearce, 2009-2103 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, writ denied, 2010-1356 (La. 9/24/10), 45 So.3d 1078, mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. See Sears, 943 So.2d at 1228. In the instant matter, the inference suggested by the Charles plaintiffs is unsupported and unreasonable. Third, any such inference, even if it could be reasonably drawn, is immaterial. The uncontradicted evidence clearly establishes that Mr. Guidry was not in breach of any duty (i.e., he was proceeding in the center turn lane well within 200 feet of his turn) in the seconds prior to and at the time the accident occurred. Consequently, we find this argument to be without merit.
See note 17, supra.
Likewise, we fail to find any support for the Charles plaintiffs' claim that Mr. Guidry was improperly traveling in the center lane for the purpose of passing stopped vehicles in the eastbound lane. It is undisputed that Mr. Guidry intended to make a left turn into a private driveway located just after the intersection, and that Mr. Guidry entered the center turn lane for this purpose. Mr. Guidry did admit that, while proceeding in the center turn, he passed perhaps two vehicles that had stopped in the eastbound lane. Nevertheless, while Mr. Guidry clearly had a duty to not travel more than 200 feet in the center turn lane, there was no commensurate duty that he refrain from incidentally passing any stopped or slower-moving vehicles in other lanes. Indeed, to prohibit a driver from using a center turn lane if to do so might cause him to pass any other vehicle would lead to absurd consequences. Therefore, we find that the Charles plaintiffs have failed to set forth any facts showing that Mr. Guidry breached a duty by violating La. R.S. 32:82.
The cases cited by the Charles plaintiffs in support of this argument are clearly distinguishable and thus, are unavailing. In those cases, the driver was clearly using the center turn lane for travel and passing, and not for the purposes of making an imminent left turn. See Hannie v. Guidry, 2010-216 (La.App. 3 Cir. 10/6/10), 48 So.3d 396, 403 (where driver "was undeniably using the center turn lane to pass traffic in the travel lanes, not to make a left turn, as the minimum distance he had to travel to make a left turn was 697 feet"); see also Miller v. Keal, 29,564 (La.App. 2 Cir. 5/7/97), 694 So.2d 569, 572, writ denied, 1997-1751 (La. 10/13/97), 703 So.2d 620 (where there was no indication that the driver traveling in the center turn lane intended to make a left turn at all).
Alternatively, the Charles plaintiffs claim that Mr. Guidry violated La. R.S. 32:76 by entering the center turn lane just before the South Carnation Street intersection. However, La. R.S. 32:76, which sets forth "limitations on passing on the left" is not applicable in this case. Mr. Guidry entered the center turn lane, at a lawful point, for the purpose of making a left turn into a private driveway and not for the purpose of passing either stopped or slower-moving traffic. Furthermore, La. R.S. 32:76 expressly provides that it does not apply to vehicles turning left into a private driveway. Therefore, we find this argument to also be without merit.
Louisiana Revised Statute 32:76 provides, in pertinent part:
Further limitations on passing on the left
A. No vehicle shall at any time be driven to the left side of the highway under the following conditions:
.....
(2) when approaching within one hundred feet of or traversing any intersection or railroad grade crossing;
.....
B. The foregoing limitations shall not apply upon a one-way roadway or a multiple lane highway nor to the driver of a vehicle turning left into or from an alley, private road or driveway. [Emphasis added.]
Lastly, the Charles plaintiffs contend that summary judgment is precluded because a genuine issue of material fact exists regarding whether or not a driver in the eastbound lane of Gause "waved" Ms. Robinson through and whether this action gave Ms. Robinson the right-of-way. We respectfully disagree.
Initially, we note that there is no evidence to suggest that a phantom driver waved Ms. Robinson through. Although Officer Gonzales speculated that this occurred, this was pure conjecture on his part. None of the plaintiffs submitted an affidavit attesting to this, or to any of their other allegations for that matter. Even so, we note that these contentions in no way establish genuine issues of material fact, precluding summary judgment in favor of the Cintas defendants. Even if there was evidence that a driver waved Ms. Robinson through, that fact could, at best, only be used to impose liability on the waving driver and/or Ms. Robinson herself, not Mr. Guidry. See Roland Bros. v. Direct Gen. Ins. Co. of Louisiana, 2008-1455 (La.App. 3 Cir. 5/6/09), 11 So.3d 1154, 1157 and cases cited therein. See also Solomon, 175 So.3d at 1028-29. Moreover, while a waving driver could yield the right-of-way in his lane to a driver such as Ms. Robinson, the Charles plaintiffs cite no authority, nor are we aware of any, to support their untenable proposition that a waving driver could somehow grant Ms. Robinson the right-of-way in a different lane in which other drivers are lawfully travelling.
In sum, we find that the Charles plaintiffs have failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial that Mr. Guidry breached any duty to them. Thus, the Cintas defendants were entitled to summary judgment as a matter of law.
Although Ms. Robinson claimed to have entered the center turn lane and stopped before being struck by Mr. Guidry's vehicle, we note that the Charles plaintiffs have not alleged or argued that the doctrine of preemption is applicable, much less submitted any factual evidence to support its application. See Archer v. Hurst, 2005-1483 (La.App. 1 Cir. 6/9/06), 938 So.2d 741, 745 (setting forth the necessary showing a plaintiff must make to establish preemption). --------
CONCLUSION
For the foregoing reasons, we affirm the summary judgment rendered in favor of Cintas Corporation No. 2, John Guidry, and Travelers Indemnity Company and dismissing, with prejudice, the claims of Latricia Robinson, Lachona Charles, and Tranika Charles, both individually and on behalf of her minor son, Qu'Von Charles. Lachona Charles and Tranika Charles are cast with all costs of this appeal.
AFFIRMED.