Selvage v. GAINEY TRANSP. SERVICE, INC.

• Decision Date: 08 October 2003
• Docket Number: No. 2003-CA-0959.,2003-CA-0959.
• Citation: 859 So.2d 813
• Parties: Tirrell L. SELVAGE v. GAINEY TRANSPORTATION SERVICE, INC., Aero Bulk Carrier, Inc., Glenn Anderson, Individually and United States Fidelity & Guaranty Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

859 So.2d 813

Tirrell L. SELVAGE v. GAINEY TRANSPORTATION SERVICE, INC., Aero Bulk Carrier, Inc., Glenn Anderson, Individually and United States Fidelity & Guaranty Insurance Company.

No. 2003-CA-0959.

Court of Appeal of Louisiana, Fourth Circuit.

October 8, 2003.

Gothard J. Reck, Hugh C. Uhalt, Uhalt & Reck, New Orleans, LA, for Plaintiff/Appellant.

Gregory S. LaCour, Lawrence J. Ernst, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.

(Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).

EDWIN A. LOMBARD, Judge.

This appeal is from a summary judgment in favor of defendants¹, Aero Bulk Carrier, Inc., Glen Anderson, individually, and United States Fidelity & Guaranty Insurance Company, and against plaintiff, Tirrell L. Selvage. We affirm the judgment of the trial court.

Relevant Facts and Procedural History

On March 29, 1999, at approximately 4 p.m., plaintiff/appellant Tyrell Selvage (Selvage) rear-ended a truck leased by defendant/appellee Aero Bulk Carrier, Inc. (Aero Bulk), and driven by defendant/appellee Glenn Anderson (Anderson) as the truck negotiated a turn on U.S. Hwy 90. Selvage filed this lawsuit on May 24, 1999, against defendants Anderson, his employer, Aero Bulk, and Aero Bulk's insurer, United States Fidelity & Guaranty Insurance Company (U.S.F. & G.), alleging that his injuries were a result of Anderson's negligence.

After two mistrials were declared, the case was transferred to a different division of Civil District Court on May 24, 2002, and the defendants moved for summary judgment. After the motion hearing on December 13, 2002, the trial court found that the plaintiff raised no issue of material fact as to whether the defendant was contributorily negligent in causing the accident at issue and, accordingly, granted summary judgment in favor of the defendants. The plaintiff challenges this judgment on appeal.

Discussion

On appeal, motions for summary judgment are reviewed de novo. Spicer v. Louisiana Power & Light Co., 97-2406 (La.App. 4th Cir.4/8/98); 712 So.2d 226, 227. Because summary judgment is now favored in Louisiana, the rules regarding such judgments should be liberally applied. Id. Summary judgment is appropriate when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966C(1). An issue is genuine if reasonable person could disagree. Smith v. Our Lady of the Lake Hospital, 93-2512 (La.7/5/94), 639 So.2d 730, 751. When, as in this case, the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, the burden shifts to the nonmoving party to produce factual support sufficient to satisfy his evidentiary burden at trial. La. Code Civ. Proc. art. 966(c)(2). The failure of the non-moving party to meet this shifting burden and produce evidence of a factual dispute mandates the granting of the motion. Davis v. Bd of Sup'rs of La. State. Univ., 97-0382 (La. 4th Cir.3/18/98), 709 So.2d 1030,1034.

The defendants contend that they are entitled to summary judgment because based upon the undisputed facts of this case² the plaintiff is unable to produce any evidence to support his claim for negligence. Negligence is determined in Louisiana under the dutyrisk analysis. The determination of liability in a negligence case usually requires proof of five different elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to a specific standard (the breach element); (3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. La. Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225, reh'g denied, (4/24/98);.

In opposition to summary judgment, the plaintiff argued that all motions for summary judgment were waived because prior to the case being transferred to a different division of civil district court, an order had been issued with a discovery/motion cut-off date of May 31, 2001, that there were substantial material issues involving the comparative fault of the parties, that defendant Aero Bulk was responsible for its negligent hiring of Anderson, and that defendant Aero Bulk was negligent for failing to have a policy for predesignating an alternative route for the transportation of hazardous cargo. On appeal, the plaintiffappellant contends that summary judgment is inappropriate in this case because there are multiple issues of genuine material fact, the trial judge erroneously made credibility determinations, and the trial judge failed to resolve all reasonable...