Industrial Sand and Abrasives, Inc. v. Louisville and Nashville R. Co.

• Decision Date: 23 February 1983
• Docket Number: No. 82-C-1695,82-C-1695
• Citation: 427 So.2d 1152
• Parties: INDUSTRIAL SAND AND ABRASIVES, INC. v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, et al.
• Court: Louisiana Supreme Court

Page 1152

427 So.2d 1152

INDUSTRIAL SAND AND ABRASIVES, INC. v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, et al.

No. 82-C-1695.

Supreme Court of Louisiana.

Feb. 23, 1983.

Rehearing Denied March 25, 1983.

Harry McCall, Jr., Andrew Rinker, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for relator.

Walton J. Barnes, Baton Rouge, for respondent.

BLANCHE, Justice.

In this case, we are asked to determine whether the trial court erred in refusing to grant the defendant's motion for summary judgment. Our original purpose in granting writs was to determine whether a hearsay affidavit filed by the plaintiff in opposition to the motion was sufficient to establish the existence of a genuine issue of material fact such that it would defeat the motion for summary judgment. The affidavit was not based on the personal knowledge of the affiant and was based entirely on hearsay which would not be admissible at a trial on the merits. We do not reach that issue because we have determined that the pleadings and affidavit of the defendant fail to show that there exists no genuine issue of material fact and that the defendant is entitled to summary judgment as a matter of law.

The uncontroverted facts show that this case arose out of the following set of circumstances: On May 30, 1978, a train owned by the Louisville and Nashville Railroad Company (L & N) and operated by its employee, P.S. Dovie, was proceeding eastward toward the Paris Road crossing in Orleans Parish, Louisiana. The time was approximately 3:30 p.m. and the weather was clear. On this part of the line, the track is straight and level, and there are no visual impediments from the Paris Road intersection to any approaching trains.

As the train approached the crossing, its speed was approximately 30 miles per hour, normal for trains on this part of the line. Dovie sounded the horn approximately 1/4 mile from the crossing, and the engine bell was ringing continuously. The locomotive headlight and revolving light were operating as well. As the train neared the crossing, a tractor-trailer rig owned by Industrial and operated by William Hano entered the intersection from the right and was forced by traffic ahead to come to a stop straddling the tracks. Dovie immediately tried to brake the train but could not stop. The engine struck the trailer portion of the rig.

About one year later, Industrial filed this lawsuit to recover the damages sustained to its tractor-trailer, alleging the negligence of L & N in the operation of its train and the state in operation of the crossing. However, despite the diligent efforts of all parties, no one has been able to contact the driver of the truck, William Hano, in order to secure his deposition or attendance at trial. Finally, after a lapse of more than two years, L & N moved for summary judgment on the uncontroverted affidavit of P.S. Dovie.

In opposition to the motion, Industrial submitted the affidavit of Leon Fontenot, President of Industrial Sand and Abrasives, Inc., in order to establish the existence of a genuine issue of material fact. However, the affidavit on its face recited that it was based entirely on hearsay, and on August 3, 1981, the trial court granted summary judgment in favor of L & N, absolving the railroad of any liability for the accident. However, the trial court subsequently granted Industrial's motion for a new trial. L & N again moved for summary judgment, but the motion was denied without written reasons. The court of appeal denied writs, reasoning that even though the affidavit was not based upon the personal knowledge of the affiant, it was nevertheless sufficiently supportive of the existence of a genuine issue of material fact. We granted writs to examine the propriety of these rulings.

We affirm, but for reasons different from those assigned by the court of appeal. In our opinion, L & N has failed to satisfy the threshold requirement of La.C.C.P. art. 966 which requires that the moving party clearly show that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law.

The sole purpose for the motion for summary judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. Miller v. East Ascension Tel. Co., 263 So.2d 360 (La.App. 1st Cir.), writs denied, 262 La. 1121, 266 So.2d 430 (1972); cf. Albatross Shipping Corp. v. Stewart, 326 F.2d 208 (5th Cir.1964); see also Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Comment, Development of Jurisprudence in Louisiana Relative to Summary Judgment Since 1960, 12 Loyola L.Rev. 128 (1965-66). The summary judgment procedure in Louisiana is set out in La.C.C.P. art. 966 et seq. These provisions are based upon the Federal Rules of Civil Procedure and even though there has developed a substantial body of jurisprudence in the courts of this state regarding the motion for summary judgment, the prior jurisprudence of the federal courts pertaining to the proper use of this device remains helpful and persuasive. Roy & Roy v. Riddle, 187 So.2d 492 (La.App. 3rd Cir.), writs denied, 249 La. 724, 190 So.2d 236 (1966).

La.C.C.P. art. 966 provides that any party may move for a summary judgment at any time, and the mover is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law." Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); cf. Fed.Rule Civ.Pro. 56. The burden is on the mover to show clearly that there is not a genuine issue of material fact in dispute, and any reasonable doubt as to the existence of a genuine issue of material fact must be resolved against the mover and in favor of trial on the merits. Thornhill v. Black, Sivalls & Bryson, 394 So.2d 1189 (La.1981); White v. Baker Manor Nursing Home, 400 So.2d 1168 (La.App. 1st Cir.), writs denied, 403 So.2d 68 (La.1981); cf. Erco Industries, Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424 (5th Cir.1981); Joplin v. Bias, 631 F.2d 1235 (5th Cir.1980).

To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact. The pleadings, affidavits, and documents of the mover must be scrutinized closely, while those of the opponent to the motion are to be indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981); Mashburn v. Collin, 355 So.2d 879...