Dagnall v. Gegenheimer, 79-1805

• Decision Date: 03 December 1980
• Docket Number: No. 79-1805,79-1805
• Citation: 631 F.2d 1195
• Parties: David DAGNALL, Plaintiff-Appellee, v. Succession of Barney GEGENHEIMER et al., Defendants, Department of Highways, State of Louisiana, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1195

631 F.2d 1195

David DAGNALL, Plaintiff-Appellee, v. Succession of Barney GEGENHEIMER et al., Defendants Department of Highways, State of Louisiana, Defendant-Appellant.

No. 79-1805.

United States Court of Appeals Fifth Circuit.

Dec. 3, 1980.

Jesse S. Guillot, New Orleans, La., for defendant-appellant.

Adams & Reese, Robert E. Couhig, Jr., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CHARLES CLARK, TJOFLAT and GARZA, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The Louisiana Department of Highways (the Department) appeals from a judgment rendered against it in this negligence action. The eleventh amendment, the Supreme Court's interpretations thereof, and the law of the State of Louisiana require the vacation of this judgment and dismissal of the appeal.

David Dagnall and two co-workers were going to work on the Pontchartrain Expressway in New Orleans at four o'clock a. m. on July 4, 1975, when a vehicle driven by Gegenheimer in the opposite direction went out of control, crossed the concrete median after straddling it for 185 feet, and struck Dagnall's vehicle head-on. Gegenheimer was killed and Dagnall received extensive injuries. Dagnall, a resident of Wisconsin, brought this diversity action against Gegenheimer's estate, which settled out of court, and the Department. At trial, Dagnall's evidence showed that the barriers used in the medians on the expressway did not meet the prevailing industry standards and that if the barriers had met those standards, he would not have been injured. After the jury returned a verdict awarding Dagnall $100,000.00, the Department filed a motion for a new trial combined with a motion for judgment notwithstanding the verdict, arguing for the first time that the trial court lacked jurisdiction over the action under the eleventh amendment. The trial court held that the Department had waived its eleventh amendment immunity by its pretrial stipulation that it was amenable to suit and by failing to raise the jurisdictional issue until after trial. Before this court, the Department argues that the eleventh amendment deprives the trial court of jurisdiction, and that there was insufficient evidence to support the jury's verdict. Because the former issue is dispositive, we do not discuss the latter.

The eleventh amendment expressly bars the suit of Dagnall, a resident of Wisconsin, against the State of Louisiana. Dagnall does not dispute the Department's claim that it is a state agency entitled to invoke eleventh amendment limitation on the judicial power of the United States. It is clear that the eleventh amendment rights of a state are sufficiently jurisdictional to be asserted for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662, 681 (1974). So then, unless the State has waived its eleventh amendment immunity, the district court was without jurisdiction. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the Court addressed the question whether the administrative and executive officers of Indiana had the authority to waive that State's eleventh amendment immunity. Id. at 466, 65 S.Ct. at 352, 89 L.Ed. at 395. Noting that the...