Boland v. West Feliciana Parish Police Jury

• Decision Date: 25 June 2004
• Docket Number: No. 2003 CA 1297.,2003 CA 1297.
• Citation: 878 So.2d 808
• Parties: Lynn S. BOLAND and Her Children, Monique Elizabeth Fox and Margeaux Lynn Fox v. WEST FELICIANA PARISH POLICE JURY, Coregis Insurance Company, Branco, Inc., John Brandt, and Norris Decoteau.
• Court: Louisiana Supreme Court

878 So.2d 808

Lynn S. BOLAND and Her Children, Monique Elizabeth Fox and Margeaux Lynn Fox v. WEST FELICIANA PARISH POLICE JURY, Coregis Insurance Company, Branco, Inc., John Brandt, and Norris Decoteau.

No. 2003 CA 1297.

Court of Appeal of Louisiana, First Circuit.

June 25, 2004.

Rehearing Denied August 18, 2004.

Appeal from the 20th Judicial District Court, Parish of West Feliciana, No. 17,142, George H. Ware, Jr., J.

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William D. Grimley, Baton Rouge, for Plaintiffs-Appellants Lynn S. Boland, et al.

John David Ziober, Kennon, Odom & Dardenne, L.L.C., Baton Rouge, for Defendants-Appellees West Feliciana Parish Police Jury and Coregis Insurance Co.

Michael O. Hesse, Hesse & Butterworth, St. Francisville, for Defendant-Appellee Norris Decoteau.

John P. Wolff, III, Baton Rouge, for Defendants Branco, Inc., John Brandt, and Transportation Insurance Co.

Before: CARTER, C.J., PARRO, and GUIDRY, JJ.

PARRO, J.

Lynn S. Boland,¹ who was injured in a fall from a rural bridge while attempting to ride her bicycle across it, appeals a judgment granting summary judgments in favor of the West Feliciana Parish Police Jury (the parish), its insurer, Coregis Insurance Company (Coregis), and Norris Decoteau,² and dismissing her claims against them.³ We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Boland was a proficient cyclist who began riding road bicycles in 1983, rode an average of 100 to 150 miles each week, participated in numerous races, and frequently won cycling competitions she entered. On August 5, 2000, Boland was riding with a group of about seventeen other cyclists on Island Road in West Feliciana Parish, along a route that took them over the Williams Creek bridge. Island Road is a rural, one-lane, parish road used as access for local residents and for timber, sand, and gravel hauling. After washing out several times, the Williams Creek bridge was completely rebuilt in 1999: its deck was constructed from the beds of railroad cars; the surface was covered with crushed limestone aggregate; and metal guardrails were placed on each side. Boland was familiar with the road and the bridge, having cycled this route several times before without incident. As she approached the bridge, Boland reduced her speed to 10-15 miles per hour and directed her bicycle toward the "wheel track" on the right side of the bridge. Shortly after she encountered the surface of the bridge, her rear wheel began sliding. She attempted to pedal and steer out of the skid, but could not regain control. The bicycle continued to fishtail and, within seconds, it leaned to the left and hit the metal railing on the left side of the bridge. Unable to right herself or dismount,⁴ Boland and the bicycle fell over the left side of the bridge into the dry creek bed about twenty feet below. The other cyclists in the group, many of whom were riding ahead of her, crossed the bridge without incident.

Boland was severely injured and allegedly has some permanent disabilities due to this accident. She and her daughters sued the parish, Coregis, Decoteau, Branco, Inc. (Branco), and Branco's owner, John Brandt,⁵ claiming damages for Boland's medical expenses, mental and physical pain and suffering, past and future wage losses, and loss of enjoyment of life, as well as her daughters' consortium losses. Boland stated in her original and supplemental petitions that the cause of her accident was the negligent design and construction of the bridge, in that it was narrower than the dimensions of the roadway; was surfaced with gravel instead of a solid surface; had gravel stacked up near the railing, thus "raising users of the bridge higher above the railing"; had a railing of substandard height; and had a surface that was inconsistent with the adjoining roadway surfaces. She claimed the parish owned and constructed the bridge or contracted to have it constructed; that Coregis insured the parish; that Branco and Brandt constructed the bridge according to plans they designed or plans provided by the parish and/or its engineer, Decoteau; that Branco and Brandt were insured by Transportation; and that the defendants were jointly and solidarily liable for her damages.

Eventually, Boland filed a motion for summary judgment against all the defendants on the issue of liability. Decoteau and the parish defendants⁶ filed cross-motions for summary judgment. After a hearing concerning only the motions filed by Boland and the parish defendants, the court denied both motions on December 11, 2002. This judgment was not appealed. The parish defendants re-urged their motion, emphasizing that LSA-R.S. 9:2800 was applicable to the claims against the parish and had not been considered by the court.⁷ Another hearing was held, at which the court heard arguments concerning Decoteau's and the parish defendants' motions for summary judgment. Following the hearing, the court granted their motions and dismissed Boland's and her daughters' claims against them. This appeal followed.

SUMMARY JUDGMENT

An appellate court reviews a district court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. 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. West v. Clarendon Nat'l Ins. Co., 99-1687 (La.App. 1st Cir.7/31/00), 767 So.2d 877, 879. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Johnson v. Evan Hall Sugar Co-op., Inc., 01-2956 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486.

On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must 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. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. LSA-C.C.P. art. 966(C)(2); McGee v. State ex rel. DOTD, 00-2706 (La.App. 1st Cir.3/28/02), 813 So.2d 625, 628. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Davis v. Specialty Diving, Inc., 98-0458 and 98-0459 (La.App. 1st Cir.4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972.

A trial judge cannot make credibility determinations on a motion for summary judgment. A party seeking a summary judgment is entitled to a favorable judgment only if there is no genuine issue as to a material fact. LSA-C.C.P. art. 966(B). The credibility of a witness is a question of fact. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 234.

MOTION TO STRIKE

The parish defendants moved this court to strike a number of Boland's exhibits that were attached to the memorandum in support of her motion for summary judgment, alleging that because they were not attached to or adopted by reference in the motion and were not separately introduced at the hearing, they were not properly part of the record at the district court and should not be considered by this court. The memorandum and attached exhibits were referenced in Boland's motion with the statement, "as explained in the accompanying memorandum and exhibits," and were filed in the record at the district court, along with the motion and memorandum.

Article 967 of the Louisiana Code of Civil Procedure describes the type of documentation a party may submit in support of or in opposition to a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 231. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts that would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. LSA-C.C.P. art. 967. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, is not of sufficient evidentiary quality on summary judgment to be given weight in determining whether or not there remain genuine issues of material fact. Sanders v. J. Ray McDermott, Inc., 03-0064 (La.App. 1st Cir.11/7/03), 867 So.2d 771, 775.

If the other criteria of Article 967 are met, evidence submitted as attachments to the memorandum in support of or in opposition to the motion for summary judgment may properly be considered by the court. Aydell v. Sterns, 98-3135 (La.2/26/99), 731 So.2d 189, 189. Affidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal. See LSA-C.C.P. art. 966; Hopper v. Crown, 560 So.2d 890, 892 (La.App. 1st Cir.1990). An affidavit filed into the record as part of the support for or opposition to...