Dawn Marie DePedro v. State of Louisiana, through the Department of Transportation and Development

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

DAWN MARIE DEPEDRO, ET AL NO. 2022 CW 1028
VERSUS

STATE OF LOUISIANA, THROUGH
THE DEPARTMENT OF

TRANSPORTATION AND DECEMBER 28, 2022
DEVELOPMENT
In Re: The State of Louisiana, through the Department of

Transportation and Development ("DOTD"), applying for
supervisory writs, 23rd Judicial District Court,
Parish of Ascension, No. 127022.

BEFORE : McDONALD, HOLDRIDGE, AND WOLFE, JJ.

WRIT DENIED. The State of Louisiana, through the
Department of Transportation and Development (“DOTD”)
unquestionably had a duty to provide a highway that was not
unreasonably dangerous. Duty is a legal question and does not
involve the actions of the plaintiff. Expert testimony offered
in the motion and opposition differed on this issue. However,
the larger and more difficult issue is whether the duty of the
DOTD extends to cover the injury to the plaintiff in this case.
This is a scope of duty question. The extent of protection owed
a particular plaintiff depends on the particular facts and
circumstances of the case and is determined on a case-by-case
basis to avoid making the defendant the insurer of all persons
against all harms. See Doe v. McKesson, 2021-00929 (La.
3/25/22), 339 So.3d 524. In this case, there are genuine issues
of material fact as to whether the plaintiff’s actions are
covered in the defendant’s scope of duty. These issues of fact
preclude this court from determining whether the defendant’s
conduct foreseeably resulted in the plaintiff being injured or
whether the plaintiff’s conduct was outside of the scope of duty
owed by the defendant and was the sole cause of his injury.
Therefore, summary judgment is not appropriate. Since duty
(scope of duty) and unreasonable risk of harm were the only
issues raised in the defendant’s motion for summary judgment,
this court is prohibited from addressing any issues that were
not raised in the motion. See La. Code Civ. P. art. 966(F).

JMM

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COURT OF APPEAL, FIRST CIRCUIT

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DEPUTY CLERK OF COURT
FOR THE COURT