Toole v. Tucker

• Decision Date: 20 January 1988
• Docket Number: No. 19263-CA,19263-CA
• Parties: Loretta TOOLE, Individually and as Executrix of the Estate of Her Deceased Minor Child, Christopher Allen, Plaintiff/Appellant, v. A.D. TUCKER and Paul Tucker, Defendants/Appellants, Caddo Parish Commission, Defendant/Appellee. 519 So.2d 348
• Court: Court of Appeal of Louisiana — District of US

Page 348

519 So.2d 348

Loretta TOOLE, Individually and as Executrix of the Estate of Her Deceased Minor Child, Christopher Allen Plaintiff/Appellant, v. A.D. TUCKER and Paul Tucker, Defendants/Appellants Caddo Parish Commission, Defendant/Appellee.

No. 19263-CA.

519 So.2d 348

Court of Appeal of Louisiana Second Circuit.

Jan. 20, 1988.

Writ Denied March 18, 1988.

C. William Gerhardt & Associates by William F. Kindig, Shreveport, Loretta Toole et al. for plaintiff/appellant.

Barnes, Jefferson, Robertson & Green by Stephen A. Jefferson, Monroe, for defendants/appellants A.D. Tucker, Paul Tucker.

Blanchard, Walker, O'Quinn & Roberts by Julie Mobley LaFargue, and W. Glen Mangham, Asst. Dist. Atty., Shreveport, for defendant/appellee Caddo Parish Comm.

Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.

FRED W. JONES, Jr., Judge.

A mother sued the developers of a subdivision for damages for the death of plaintiff's five year old child allegedly thrown from a van when the vehicle struck a pothole in a subdivision street. It was asserted in the alternative that, if the street had been dedicated to the Caddo Parish Commission ("CPC"), the accident was due to the negligence of that defendant.

CPC filed a motion for summary judgment, which was sustained. Both plaintiff and the subdivision developers appealed. For the reasons set forth, we reverse.

In her petition, plaintiff alleged that A.D. Tucker and Paul Tucker, as developers of the Pecan Farms Subdivision in Caddo Parish, were liable in damages for their failure to properly maintain the streets of that subdivision. However, it was asserted in the alternative, that if the subdivision streets had been dedicated to the public, the accident was caused solely by the negligence of the CPC in failing to properly maintain and service the streets. Judgment was prayed for in solido against the three defendants.

In its motion for summary judgment, CPC conceded that the street in question (Lareta St.) had been dedicated to the public, but denied that it had custody of the street or had ever maintained the street because of the failure of the subdivision developers to construct the street to meet minimum parish standards. Filed in support of the motion was an affidavit of the parish Director of Public Works stating that the subdivision developers (the Tuckers) did not pave the subdivision streets in compliance with parish standards and that, consequently, under Caddo Parish Ordinance No. 1392, CPC had no duty to maintain Lareta Street. A copy of the parish ordinance was filed together with a copy of the subdivision plat which contained this statement:

"Dedicated streets are not being paved to Parish Police Jury standards by Developer. Caddo Parish Ordinance No. 1392 of 1973 provides for Police Jury assistance when:

1) 60% of total lots sold to individuals for single family dwellings.

2) Construction has commenced on 60% of total lots and,

3) 60% of owners petition Police Jury for construction. Cost of construction by Police Jury will be assessed on front footage (one side only) against all lots in Subdivision."

In written reasons for sustaining the motion for summary judgment, the trial judge stated:

"Since the streets were not constructed in accordance with the applicable parish standards, Caddo Parish Commission had no duty to maintain the streets in the subdivision and in fact performed no maintenance on the streets ...

The clear terms of the above statutory authority (R.S. 33:5051; 48:481) and the limited acceptance of the parish on the act of dedication, the parish has no obligation to plaintiffs to maintain the streets in a safe condition."

A motion for summary judgment should only be granted where the pleadings, depositions answers to interrogatories, 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. La.C.C.P.. Art. 966; Sanders v. City of Blanchard, 438 So.2d 714 (La.App. 2d Cir.1983); See also: Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981); Swindle v. Haughton Wood Co., Inc., 458 So.2d 992 (La.App. 2d Cir.1984); Watson v. Cook, 427 So.2d 1312 (La.App. 2d Cir.1983); Jones v. Prudential Ins. Co. of America, 415 So.2d 223 (La.App. 2d Cir.1982).

The burden of proof is on the mover to show that any real doubt has been excluded. The mover's pleadings, affidavits and documents are to be scrutinized closely while those of the opponent are to be indulgently treated. Industrial Sand and Abrasives, Inc. v. Louisville and Nashville RR Co., et al, 427 So.2d 1152 (La.1983).

The court must first ask whether the supporting documents presented are sufficient to resolve all material issues of fact. Sanders, supra. If the evidence presented is subject to conflicting interpretations or reasonable men might differ as to its significance, summary judgment is not proper. Jackson v. State, Teacher's Retirement System of La., 407 So.2d 416 (La.App. 1st Cir.1981). Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubt should be resolved in favor of a trial on the merits. Swindle, supra.

The critical question here is whether, under the established facts, CPC was entitled to summary judgment as a matter of law.

The Louisiana Supreme Court has indicated that, by the language of La.R.S. 33:5051, the legislature intended to require platting and dedication of all newly formed streets and alleys which were fashioned from land to be subdivided. Pioneer Production Corp. v. Segraves, 340 So.2d 270 (La.1976). The use of the word "shall" in the statute renders its provisions mandatory. La.R.S. 1:3.

Our jurisprudence consistently holds that statutory dedication is accomplished when the statute is substantially complied with. Anderson v. Police Jury of East Feliciana Parish, 452 So.2d 730 (La.App. 1st Cir.1984), writ denied, 457 So.2d 13 (La.1984). A statutory dedication pursuant to this statute conveys perfect ownership...