Melissa Tiblier v. Gordon Boudauin, State of Louisiana, Department of Transportation and Development and City of New Orleans

MELISSA TIBLIER * NO. 2019-CA-0816

VERSUS *
COURT OF APPEAL
GORDON BOUDAUIN, STATE *
OF LOUISIANA, FOURTH CIRCUIT
DEPARTMENT OF *
TRANSPORTATION AND STATE OF LOUISIANA
DEVELOPMENT AND CITY *******
OF NEW ORLEANS

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2015-00937, DIVISION “J”
Honorable D. Nicole Sheppard,
******
Judge Edwin A. Lombard
******
(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins,
Judge Regina Bartholomew-Woods)

George B. Recile
CHEHARDY SHERMAN WILLIAMS MURRAY RECILE STAKELUM &
HAYES, LLP
One Galleria Blvd., Suite 1100
Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLANT

D. Russell Holwadel
Heather England Reznik
ADAMS HOEFER HOLWADEL, LLC
400 Poydras Street, Suite 2450
New Orleans, LA 70130

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED

MARCH 4, 2020

The Appellant, Melissa Tiblier, seeks review of the June 27, 2019 judgment

of the district court, granting a motion for summary judgment in favor of the

Appellees, Gordon Boudauin and the State of Louisiana through the Department of

Transportation and Development (DOTD). Pursuant to our de novo review, we

affirm the judgment of the district court, finding no genuine issue of material fact

exists as to whether the Appellees satisfied the statutory standard of care under La.

Rev. Stat. 48:35.

Facts

This appeal involves a May 2, 2014 rear-end collision on I-10 West in New

Orleans, involving Ms. Tiblier and DOTD employee, Mr. Boudauin. Driving in

the right lane on I-10 West, Ms. Tiblier crossed the Carrollton/Tulane Avenue

overpass as she approached a triangular shaped shoulder area between the right

lane and the Airline Highway entrance-ramp, known as a gore zone. Within the

gore zone, Mr. Boudauin was operating a large orange-colored street sweeper (“the

Sweeper”), performing regularly scheduled interstate sweeping operations.

Ms. Tiblier avers that as she was driving in the right lane, a phantom vehicle

in the middle lane swerved to the right and into her lane of travel. Reacting to the

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alleged phantom vehicle and without first looking, Ms. Tiblier swerved into the

gore zone and rear-ended the Sweeper. She testified that she did not first look to

her right prior to maneuvering into the gore zone. It is contested between the

parties as to whether the Sweeper was stationary at the time of the collision. The

New Orleans Police Department (“NOPD”) responded to the scene and a police

report was later authored by the investigating officer, Officer Khalid Watson.

In 2015, Ms. Tiblier filed suit against the Appellees as well as the City of

New Orleans, raising negligence claims and seeking damages for the injuries she

sustained. The Appellees subsequently filed a Motion for Summary Judgment

asserting: they met the duty of care under La. Rev. Stat. 48:35; Ms. Tiblier and the

phantom vehicle are at fault for the rear-end collision; and Ms. Tiblier was unable

to rebut the presumption that as the “following motorist” she is at fault. The

Appellees supported their motion with the affidavits of Mr. Boudauin and Earl

Leidinger, a DOTD maintenance foreman. Additionally, the Appellees attached the

medical records of Ms. Tiblier, including the Interim LSU Public Hospital and

those of her psychiatrist James G. Barbee, documenting her admission of using

heroin prior to the accident.

Ms. Tiblier opposed the motion for summary judgment, asserting that Off.

Watson’s deposition testimony established the Sweeper in a stationary position at

the time of the accident, which created a hazard and was non-compliant with

statutory standards.

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Following a February 2019 hearing, the district court issued a final judgment

on June 27, 2019, granting the Appellees’ motion and dismissing Ms. Tiblier’s

claims against the Appellees with prejudice.1 This timely appeal followed.

Ms. Tiblier’s sole assignment of error is the district court erred in finding

that the record does not contain evidence establishing that a genuine issue of

material fact exists as to whether Mr. Boudauin was stationary at the time of the

collision. Upon our review of the record and the applicable law, we find no such

genuine issue of material fact exists because Ms. Tiblier failed to produce

competent summary judgment evidence.

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The district court provided its Reasons for Judgment on the record at the February 22, 2019
hearing:

Plaintiff argues that the [sic] genuine issue of material fact
precluding summary judgment exists as to whether the street
sweeper was actually moving at the time of the accident.
Plaintiff’s contention is that Mr. Boudauin was not driving the
vehicle in accordance with the maintenance traffic control
handbook, and this caused a dangerous condition. In it’s [sic]
support of this position, Plaintiff attaches an exhibit, a portion of
the deposition of Officer Khalid Watson in which Officer Watson
is being asked about his recollection based off of his police report.
For starters, Article 803(8) (B)(1) provides that “investigative
reports by police and other law enforcement personnel are
excluded from the public records and exception to the hearsay
rule.” Knighter v. Fantana. Moreover, even in it’s [sic] attempt to
refresh the officer’s memory proved futile, because he simply
could not recall how he ascertained the information contained in
the report that contradict [sic] Mr. Boudauin’s testimony that he
was driving the street sweeper at the time of the accident.
Responding to multiple questions with “I can’t recall.” [sic] This
coupled with other facts and circumstances such as Mr. Boudauin’s
testimony [;] The testimony of his supervisor . . . and the report of
Dr. James G. Barbie, MD [sic]. Even viewing the facts in the light
most favorable to the plaintiff, it does not appear that the Court –
to the Court, that any genuine issues of material fact exists. For the
foregoing reasons defendant’s [sic] motion for summary judgment
is hereby granted.

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Standard of Review

Appellate courts apply a de novo standard of review on motions for

summary judgment, utilizing the same criteria applied by trial courts to determine

whether summary judgment is appropriate. Richard v. Turner, 09-0161, p. 4 (La.

App. 4 Cir. 7/1/09), 16 So. 3d 523, 525. Pursuant to La. Code Civ. Proc. art.

966(A)(3), “[a] motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

material fact and that the mover is entitled to judgment as a matter of law.” In

support of or in opposition to a motion for summary judgment, only the following

documents may be filed: pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions. La.

Code Civ. Proc. art. 966 (A)(4).

Further, the burden of proof is on the mover. La. Code Civ. Proc. art.

966(D)(1). However, “if the mover will not bear the burden of proof at trial on the

issue that is before the court on the motion for summary judgment, the mover's

burden” is “to point out to the court the absence of factual support for one or more

elements essential to the adverse party's claim, action, or defense.” Id. The burden

then shifts to the adverse party “to produce factual support sufficient to establish

the existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law.” Id.

Discussion

As previously stated, Ms. Tiblier’s principal argument is a genuine issue of

material fact exists as to whether the Sweeper was stationary in the gore zone at the

time of the collision. She further maintains that because Mr. Boudauin was stopped

in the gore zone there is an issue of whether his operation of the Sweeper complied

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with statutory standards set forth in La. Rev. Stat. 48:35. As support for her

opposition to the Appellees’ motion for summary judgment, Ms. Tiblier

exclusively relies upon the testimony of Off. Watson. Her sole reliance on his

testimony is fatal to her opposition of the Appellees’ motion for summary

judgment.

In examining a motion for summary judgment involving a rear-end collision

with a DOTD vehicle, we first set forth the applicable Louisiana jurisprudence.

Following motorists in rear-end collisions are presumed to have breached the

statutory standard of care; thus, they are presumed negligent. Phipps v. Allstate Ins.

Co., 05-651, pp. 4-5 (La.App. 5 Cir. 2/27/06), 924 So.2d 1081, 1084. The standard

of care is set forth in La. Rev. Stat. 32:81(A), which states in pertinent part:

A. The driver of a motor vehicle shall not follow another
vehicle more closely than is reasonable and prudent,
having due regard for the speed of such vehicle and the
traffic upon and the condition of the highway.

However, there is an exception to this rule: the sudden emergency doctrine.

The sudden emergency doctrine provides that a driver, finding him or herself in a

position of imminent peril and with insufficient time to consider and weigh all the

circumstances or the best means to adopt to avoid an impending danger, is not

guilty of negligence—if the driver fails to adopt what subsequently and upon

reflection may appear to be the better method— unless the emergency is brought

about by his or her own negligence. Traweek v. Jackson, 30,248, p. 3 (La. App. 2

Cir. 2/25/98), 709 So. 2d 867, 869 (citing Prest v. State Dept. of Trans. and Dev.,

490 So.2d. 659 (La. App. 2d Cir. 1986); Stephens v. State, Through the Dept. of

Trans. and Dev., 440 So.2d 920 (La. App. 2d Cir. 1983).

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Under the sudden emergency doctrine, the following motorist bears the

burden of establishing: he or she kept the vehicle under control; closely observed

the forward vehicle; and followed at a safe distance under the circumstances.

Watson v. Smith, 17-0913 (La. App. 4 Cir. 5/16/18), 247 So. 3d 811, 816-17 (citing

Daigle v. Mumphrey, 96-1891, p. 3 (La. App. 4 Cir. 3/12/97), 691 So. 2d 260, 262.

“The following motorist may also avoid liability by proving that the driver of the

lead vehicle negligently created a hazard which he could not reasonably avoid.”

Daigle, 96-1891, p. 3, 691 So. 2d at 262 [citations omitted].

We consider the foregoing jurisprudence with the DOTD’s obligation to

motorists, set forth in La. Rev. Stat. 48:35 (A), requiring the DOTD to adopt

minimum safety standards with respect to highway and bridge design, construction

and maintenance:

The Department of Transportation and Development
shall adopt minimum safety guidelines with respect to
highway and bridge design, construction, and
maintenance. These guidelines shall correlate with and,
so far as possible, conform to the system then current as
approved by the American Association of State Highway
and Transportation Officials allowing the flexibilities
incorporated therein. Hereafter, the state highway system
shall conform to such safety guidelines.

The DOTD’s duty under La. Rev. Stat. 48:35 is to maintain public roads in a safe

condition so as to prevent exposure of the public to unreasonable dangers,

including providing proper safeguards or adequate warnings of dangerous

conditions on the highway. Traweek, 30,248, p. 4, 709 So. 2d at 869. In the instant

matter, the minimum safety guidelines established by the DOTD are set forth in the

“Maintenance Traffic Control Handbook,” (“the Handbook”).

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In light of the applicable laws, we review the affidavits of Mr. Boudauin and

Mr. Leidinger filed in support of the Motion for Summary Judgment. Mr.

Boudauin attested to the following facts in his affidavit:

 Being a 14-year DOTD employee that has operated the
DOTD Sweeper for six years and currently being
employed as a "mobile equipment operator 1/heavy";

 Being fully trained and qualified to operate the Sweeper;

 Operating the large, orange-colored Sweeper completely
within the gore area at the time of the collision, while
driving west at a speed of seven miles per hour. Contrary
to facts contained in the NOPD police report, he swore
the Sweeper was not stationary at the time of the
collision;

 Having no recollection of speaking to the investigating
officer nor of informing him that the Sweeper was
stationary in the gore zone;

 Operating the Sweeper on the date of the accident in
accordance with standard procedure at the time of the
accident;

 Being rear-ended by Ms. Tiblier, which caused the
Sweeper to move forward at a distance exceeding 15 feet;

 Operating a Sweeper at the time of the accident that was
equipped with prominent warning features such as a large
arrow board, and flashing lights, both of which were in
operation at the time of the collision; and,

 Engaging the Sweeper in a routine shoulder sweeping
operation on Interstate 10 at the time of the accident. It is
a part of his regular work routine, every other Friday, to
sweep the same portion of the interstate where the
accident occurred.

Corroborating the above-listed facts attested to by Mr. Boudauin, Mr.

Leidinger, a 27-year DOTD employee, attested to similar facts and expounded

upon the DOTD procedures applicable to the operation of Sweepers. He attested to

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having personal knowledge of the accident, having arrived at the scene 15 minutes

after it occurred. He explained that he observed the clear weather conditions of the

day and took several pictures of the site, which reflected the damage sustained by

the two vehicles involved as well as their respective positions following the

accident. Specifically, Mr. Leidinger confirmed observing damage to the rear of

the large orange Sweeper that was equipped with flashing strobe lights and a large

arrow board as well as the extensive damage to the front of Ms. Tiblier’s vehicle.

Additionally, Mr. Leidinger swore to being intimately familiar with the

operations of the Sweepers and the manner they are to be used pursuant to the

Handbook, a jointly sponsored publication of the DOTD and Louisiana State

University. The DOTD, he stated, utilizes the Handbook as a guideline for

conducting various operations, including street sweeping operations. Attaching the

portions of the Handbook applicable to the accident at issue, i.e. guidelines and

diagrams pertaining to “Mobile operations” and “Sweeping with a self-propelled

sweeper”, Mr. Leidinger explained that mobile operations involve large, orange-

painted, slow-moving vehicles, like the Sweeper Mr. Boudauin was operating, in

the shoulder area adjacent to the interstate and in gore zones. Moreover, a

Sweeper, when used without other vehicles, must use an arrow board and be

mounted with flashing warning lights. He swore to the fact that the Sweeper

operated by Mr. Boudauin was so equipped and was fitted with emergency

flashers. He further attested to the fact that under the Handbook the use of other

DOTD vehicles with the Sweeper was not mandatory. Ultimately, he concluded

that Mr. Boudauin performed his duties in accordance with standard street

sweeping procedure based upon his experience, observations of the accident scene

and knowledge of the performance of street sweeping operations.

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In contrast to the independent recollection of Mr. Leidinger, Off. Watson

made it clear at the beginning of his deposition testimony that he did not recall the

accident. He specifically stated that he did not have a recollection of the “names,

the vehicles, and location” of the accident. He testified that he did not have an

independent recollection of the facts documented in his report, and no recollection

of the persons who provided the information he documented. He further testified

that he had no recollection of speaking with Mr. Boudauin, although he noted in

his report that Mr. Boudauin was stationary at the time of the accident.

Off. Watson’s lack of an independent recollection of the facts contained in

the police report evidences his inability to authenticate the report he authored. An

unauthenticated police report cannot be used to create a genuine issue of material

fact. Estate of Loveless ex rel Loveless v. Gay, 41,575, p. 4 (La. App. 2 Cir.

12/13/06), 945 So. 2d 233, 236.2 Thus, Ms. Tiblier fails to offer competent factual

support for her assertion that the Sweeper was stationary nor for her argument that

the Appellees failed to comply with the statutory requirements of La. Rev. Stat.

48:35.

Moreover, the Appellees point to the applicability of Traweek in this matter.

In Traweek, the Plaintiff driver brought negligence action against the DOTD and a

DOTD Sweeper driver, arising from injuries she sustained when her vehicle rear-

ended a Sweeper on the interstate. After merging onto the interstate, the Plaintiff

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“A police report does not comply with La. C.C.P. art. 967 requiring that supporting and
opposing affidavits shall be made on personal knowledge.” Id. citing Charlot v. Alabama Great
Southern Railroad Company, 98-0895 (La.App. 4th Cir.6/24/98), 716 So.2d 906. The Second
Circuit further held that the district court properly struck a police report from consideration on
summary judgment due to the plaintiff’s failure to “provide an affidavit or deposition testimony
of the police officer who authored the report or other witnesses, in support of their opposition to
the motion for summary judgment.” Id. See also, Lewis v. Jabbar, 08-1051, p. 6 (La. App. 1 Cir.
1/12/09), 5 So. 3d 250, 255. A police report also constitutes inadmissible hearsay. La. Code
Evid. arts. 801-803.

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followed behind an unknown driver in her lane of travel, who subsequently

signaled as she or he switched to the left lane. The Plaintiff also attempted to

merge to the left, but was unable to do so and ultimately struck the rear of a

Sweeper engaged in a slow-moving mobile operation at the time. Traweek, 30,248,

p. 1, 709 So.2d at 868. The Plaintiff alleged the DOTD created a hazard by

inadequately warning motorists of the presence of the slow-moving Sweeper;

consequently, she maintained she was free from fault under the sudden emergency

doctrine. Id.

The DOTD and driver of the Sweeper moved for summary judgment

asserting that the sweeping operation met and exceeded the DOTD guidelines in

effect. Id., 30,248, p. 2, 709 So.2d at 868. Attaching several affidavits and

depositions to establish that minimum safety requirements were satisfied, the

DOTD showed the immense size and bright color of the Sweeper made it clearly

visible to a following driver, even if the following driver’s view was partially

obscured by another sizeable vehicle. The DOTD averred that the Plaintiff

exceeded the speed limit at the time of the accident and failed to keep an adequate

lookout; therefore, her negligence caused the accident. The Plaintiff solely relied

upon her pleadings to contest the motion for summary judgment. Finding that the

Plaintiff failed to provide factual support for her arguments, the Second Circuit

upheld the district court’s grant of the motion for summary judgment, reasoning

the Plaintiff would be unable to satisfy her evidentiary burden of proof at trial. La.

Code Civ. Proc. art. 966 (C)(2). Id., 30, 248, pp. 9-10, 709 So.2d at 872.

While factually distinguishable, Traweek is instructive in showing that

DOTD mobile interstate operations involving one Sweeper are compliant with La.

Rev. Stat. 48:35 where DOTD guidelines are followed and do not create a hazard

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to following motorists. Traweek’s holding further demonstrates that on a motion

for summary judgment, the party bearing the burden of proof at trial cannot rest on

“[m]ere conclusory allegations, improbable inferences and unsupported

speculation” to establish the existence of a genuine issue of material fact. Sears v.

Home Depot, USA, Inc., 06-0201, p. 12 (La. App. 4 Cir. 10/18/06), 943 So. 2d

1219, 1228. Ultimately, in the matter sub judice, Ms. Tiblier could not establish

the existence of a genuine issue of material fact as to Mr. Boudauin’s mobility nor

could she prove that the Appellees’ operation of the Sweeper created a hazard to

her as a following driver, in violation of La. Rev. Stat. 48:35. Therefore, we affirm

the district court’s grant of the motion for summary judgment of the Appellees.

DECREE

For the foregoing reasons, we affirm the June 27, 2019 judgment of the

district court, granting the motion for summary judgment of Gordon Boudauin and

the State of Louisiana through the Department of Transportation and Development

against Melissa Tiblier.

AFFIRMED

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