Barbara W. Flake v. P & P Automotive Interests, Inc., Toyota Motor Corporation, and Toyota Motor Sales, U.S.A., Inc

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2025 CA 0674

VERSES

TEAM TOYOTA, TOYOTA MOTOR CORPORATION, & TOYOTA
MOTOR SALES, U.S. A., INC.
M .'i 0
Judgment Rendered:

ON APPEAL FROM
THE TWENTY-THIRD JUDICIAL DISTRICT COURT, DIVISION B
IN AND FOR THE PARISH OF ASCENSION
STATE OF LOUISIANA
DOCKET NUMBER 121, 796

HONORABLE CODY M. MARTIN, JUDGE PRESIDING

Gary N. Boutwell, 11 Counsel for Appellant
Hester Doman Lemoine Barbara W. Flake
Baton Rouge, Louisiana
and

Joseph E. Ritch
Corpus Christi, Texas

Joseph J. Cefalu, III Counsel for Appellee
Chris D. Billings P& P Automotive Interests, Inc.
Alexa Candelora
Robert Moseley Schmidt
Baton Rouge, Louisiana

BEFORE: MILLER, EDWARDS, AND FIELDS, JJ.

ell

FIELDS, J.

Plaintiff, Barbara W. Flake, appeals a February 28, 2025 summary judgment

granted in favor of defendant, P& P Automotive Interests, Inc., which dismissed all

of Ms. Flake' s claims against P& P Automotive Interests, Inc. with prejudice. For

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 17, 2018, Ms. Flake, filed a petition for damages naming as

defendants, P& P Automotive Interests, Inc. (" P& P"),' Toyota Motor Corporation,

and Toyota Motor Sales, U.S. A., Inc. In the petition, Ms. Flake alleged that on

October 14, 2015, she purchased a 2015 Toyota Highlander from the Team Toyota

dealership in Baton Rouge, Louisiana. Ms. Flake further alleged that on November

12, 2017, she pulled the Highlander into a driveway, thought she placed the car into

park, engaged the parking brake, and exited the vehicle while leaving it running.

Ms. Flake alleged that after she returned to the vehicle and removed the key, the

vehicle began to roll rearward causing her physical injuries. Due to this incident,

Ms. Flake asserted the vehicle' s ignition and parking brake systems were defective,

which was the basis of her redh.ibition claim. Ms. Flake further alleged that two

months prior to the incident, on September 12, 2017, P& P performed a multi -point

inspection of the vehicle, which included inspection of the parking brake, and

deemed the parking brake fully operational. Ms. Flake asserted that during this

inspection, P& P failed to detect and warn Ms. Flake of the defective parking brake.

Ms. Flake also asserted P& P violated the Louisiana Products Liability Act (LPLA),

specifically the breach of express warranties and inadequate warning, and is liable

to her for general negligence.

l P& P was incorrectly named as Team Toyota Realty, L.L.C. in the original petition for damages.
Following P& P' s answer, Ms. Flake amended her petition to name P& P as a defendant in place of
Team Toyota Realty, L.L.C.
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Following discovery and the dismissal of the other two defendants, Toyota

Motors Sales, U.S. A., Inc. and Toyota Motor Corporation, from the suit with

prejudice, P& P filed a motion for summary judgment on October 31, 2024, asserting

it was entitled to judgment as a matter of law because Ms. Flake' s allegations of a

defect in the parking brake lacked evidentiary support. In its memorandum in

support of its motion, P& P argued that because Ms. Flake did not have evidence to

support her claim that a defect existed in the parking brake of her Highlander at the

time of the accident, her claims of redhibition, general negligence, and violations of

the LPLA necessarily failed. In support of its motion for summary judgment, P& P

attached, among other documents, the deposition transcript of Ms. Flake who stated

that she never experienced or reported an issue with the parking brake from the time

of purchase until the time of the accident; as well as the affidavit of a registered

professional mechanical engineer, who personally evaluated the Highlander and

found no defect in the vehicle' s parking brake.

On December 30, 2024, Ms. Flake filed an opposition to P& P' s motion,

asserting there existed genuine issues of material fact that precluded the granting of

summary judgment in P& P' s favor. Ms. Flake argued that contrary to P& P' s

assertion, she possessed substantial evidence of the defect in her Highlander.

Specifically, Ms. Flake referenced two videos created by herself and her husband on

December 26, 2024, which she asserted exemplified the obvious issues with the

vehicle' s parking brake. Ms. Flake further referred to the affidavit of Jerry Zamora,

an expert mechanic and automotive specialist, who attested that the December 26,

2024 videos showed an obvious defect with the parking brake system.

Ms. Flake also requested a continuance of the hearing on the motion due to

scheduled corporate depositions of P& P and she filed a separate motion to continue

for the same reason. Following a hearing, the trial court continued the hearing on

P& P' s motion for summary judgment to February 24, 2025. In its ruling, the trial

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court also ordered that any additional evidence that may be submitted in opposition

to P& P' s motion for summary judgment be restricted to the corporate deposition of

P& P and Mr. Zamora' s opinions regarding the corporate deposition. After the

depositions were taken, P& P moved to supplement its motion for summary judgment

with the entire transcripts of the corporate depositions held on January 29, 2025.

On February 10, 2025, Ms. Flake filed a supplemental memorandum in

opposition to P& P' s motion for summary judgment. Within the memorandum, Ms.

Flake asserted that P& P' s failure to measure her Highlander' s brake shoe thickness

and disc rotators directly impacted the parking brake function, and without a proper

measurement, P& P was negligent in its inspection of her parking brake and its

effectiveness. Ms. Flake also raised for the first time an objection to a certain

attachment to an affidavit filed in support of the original motion for summary
judgment.

The hearing on P& P' s motion was held on February 24, 2025. We note that

there was no ruling on Ms. Flake' s evidentiary objection at the hearing and neither

party requested such a ruling. Following party arguments, the trial court granted

summary judgment as to the claims for redhibition and negligence, and dismissed

all of Ms. Flake' s claims against P& P.2 A written judgment reflecting this ruling

was signed by the trial court on February 28, 2025. It is from this judgment that Ms.

Flake appeals.

Ms. Flake asserts several assignments of error, including the trial court' s

finding that Ms. Flake failed to prove a defect existed in the parking brake system at

the time the vehicle was sold to her, or at the time the vehicle was inspected by P& P
in September 2017. Ms. Flake further asserts the trial court erred in not finding a

2 Ms. Flake and P& P stipulated that Ms. Flake had previously dismissed her LPLA claims against
P& P.

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duty or breach thereof by P& P during the September 2017 multi -point inspection,

and in dismissing Ms. Flake' s claim for redhibition.

LAW AND ANALYSIS

Summary judgment procedure is favored and " designed to secure the just,

speedy, and inexpensive determination of every action ... and shall be construed to

accomplish these ends." La. Code Civ. P. art. 966( A)(2). In reviewing the trial

court' s decision on a motion for summary judgment, this court applies a de novo

standard of review using the same criteria applied by trial courts to determine

whether summary judgment is appropriate. Bass v. Disa Global Solutions, Inc.,

2019- 1145 ( La. App. 1st Cr. 6/ 12/ 20), 305 So. 3d 903, 906, writ denied, 2020- 01025

La. 11/ 4/ 20), 303 So. 3d 651. After an opportunity for adequate discovery, 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. La. Code Civ. P. art. 966( A)(3).

The only documents that may be filed or referenced in support of or in

opposition to the motion include pleadings, memoranda, affidavits, depositions,

answers to interrogatories, certified copies of public documents or public records,

written stipulations, and admissions. See La. Code Civ. P. art. 966( A)(4)( a). If an

objection to a document is raised in a timely filed opposition or reply memorandum,

the court shall consider the objection prior to rendering judgment and state on the

record or in writing whether the court sustains or overrules the objections raised. La.

Code Civ. P. art. 966( D)(2).

The mover bears the burden of proving that he is entitled to summary

judgment. However, if the mover will not bear the burden of proof at trial on the

subject matter of the motion, he need only demonstrate the absence of factual support

for one or more essential elements of his opponent' s claim, action, or defense. See

La. Code Civ. P. art. 966( D)( 1). If proven, the burden shifts to the adverse party to

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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. La.

Code Civ. P. art. 966( D)( 1); Bass, 305 So. 3d at 906.

In ruling on a motion for summary judgment, the trial court' s role is not to

weigh the evidence or to determine the truth of the matter, but instead to determine

whether there is a genuine issue of triable fact. Quereau v. Sam & Brett LLC,

2024- 0243 ( La. App. I st Cir. 10/ 3/ 24), 405 So. 3d 847, 852, citing Kasem v. State

Farm Fire and Casualty Company, 2016- 0217 ( La. App. 1st Cir. 2/ 10/ 17), 212

So. 3d 6, 12- 13. A genuine issue is one as to which reasonable persons could

disagree; if on the state of the evidence, reasonable persons could reach only one

conclusion, there is no need for a trial on that issue. A fact is material when its

existence or nonexistence may be essential to plaintiffs cause of action under the

applicable theory of recovery. See Kasem, 212 So. 3d at 13, quoting Smith v. Our

Lady of the Lake Hospital, Inc., 93- 2512 ( La. 7/ 5/ 94), 639 So. 2d 730, 751.

Because it is the applicable substantive law that determines materiality, whether a

particular fact in dispute is material can be seen only in light of the substantive law

applicable to this case. Quereau, 405 So. 3d at 852.

Ms. Flake' s redhibition claim asserted against P& P requires Ms. Flake to

show a non -apparent defect existed in the Highlander at the time she purchased the

vehicle. See La. Civ. Code arts. 2520 & 2530. " Defect" as contemplated in article

2520 means a physical imperfection or deformity or a lacking of the necessary

components or level of quality. Cazaubon v. Cycle Sport, LLC, 2011- 0289 ( La.

App. 1st Cir. 11/ 9/ 11), 79 So. 3d 1063,, 1065. Moreover, Ms. Flake' s negligence

claim alleges P& P' s failure to detect and advise of a defect in her braking system,

which likewise necessitates the existence of an identifiable defect at the time of the

September 2017 inspection. P& P asserted in its motion for summary judgment that

Ms. Flake cannot show a defect existed in her Highlander at either the time of

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purchase or on September 12, 2017, the date of the multi -point inspection, and

therefore summary judgment is appropriate.

In support of its argument, P& P relied on the affidavit of Jeff Earnest, a

Service Manager employed by P& P. Mr. Earnest attested that P& P is a retail

distributor of automobiles in Louisiana and when P& P purchases vehicles from

wholesalers or other dealers, it performs, as a matter of routine practice, inspections

on the vehicles, which include checking the braking systems. He stated that when

P& P took possession of the Highlander in August 2015, the parking pawl, service

brake ( i.e., brake pedal), and parking brake were fully functional and contained no

defects. Mr. Earnest further stated that no modifications or alterations were done to

the vehicle by P& P. Mr. Earnest attested that it is standard practice by P& P to offer

and perform a complimentary visual inspection of vehicles when they are brought in

for maintenance, which was performed on the Highlander at the time of Ms. Flake' s

September 2017 oil change. He stated that the visual inspection included looking at

the parking brake cables and pressing the parking brake pedal to ensure it showed

resistance and engagement.
Additionally, he testified that the inspection does not

include diagnostics of any kind and customers are informed of the type of inspection

happening at the time of inspection.

There were three attachments to Mr. Earnest' s affidavit, including excerpts

from the owner' s manual for a 2015 Toyota Highlander, which noted that for

parking the vehicle", the driver must depress the brake pedal, shift the shift lever to

P," set the brake, then turn the engine to the " LOCK" position to stop the engine.

The manual further warned.the operator that when parking the vehicle, the shift lever

must " always" be shifted to " P" because failure to do so may cause the vehicle to

move or the vehicle may accelerate suddenly if the accelerator pedal is accidentally

depressed. Also included as an attachment to Mr. Earnest' s affidavit was the receipt

for the oil change Ms. Flake received at P& P on September 12, 2017, which noted,

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COMPLIMENTARY MULTI -POINT INSPECTION — VISUAL INSPECTION

ONLY. DOES NOT INCLUDE DIAGNOSTICS FOR ANY MECHANICAL,

ELECTRICAL, NOISE OR OTHER CONCERNS." Finally, a Carfax report of a

2015 Toyota Highlander matching the VIN number of Ms. Flake' s Highlander was

attached, showing that the vehicle had undergone multiple vehicle inspections not

only by P& P but also by third parties within the two years Ms. Flake owned the

vehicle.

The motion was also supported by the affidavit of Allen Brogdon, a motor

vehicle inspector employed by P& P, who explained the various requirements of

vehicle safety and emissions inspections required by the State of Louisiana. Mr.

Brogdon attested that this type of inspection includes pressing the parking brake

pedal, ensuring that the pedal remains engaged after being pressed, and then shifting

the vehicle from park to drive to ensure the parking brake holds the vehicle. Mr.

Brogdon concluded that a vehicle cannot pass this type of inspection if its parking
brake is not functional.

Also attached in support of P& P' s motion for summary judgment was the

affidavit of Harold Clyde, a registered professional mechanical engineer and former

Technical Analysis Manager at Toyota Motor Sales, U.S. A., Inc., who attested that

on October 23, 2018, he personally evaluated Ms. Flake' s Highlander on the same

sloped driveway where the accident occurred. Mr. Clyde attested that during the

evaluation, he tested the parking pawl, which he found to be fully functioning,
meaning that the vehicle remained in place when in " Park." He further stated that

he performed this evaluation at various areas of the sloped driveway and the results
remained the same, i.e., the Highlander remained in place when the vehicle was

placed in " Park," even when the service and parking brakes were disengaged.

Additionally, he stated that he evaluated the service brake, or brake pedal, to

determine if the vehicle remained in place once the brake was engaged regardless of

H'.

the transmission setting. Mr. Clyde noted that he performed his evaluation in every

transmission setting and the results were the same each time — the Highlander

remained in place on the driveway when its service brake was engaged even when

the parking brake was disengaged and regardless of whether the vehicle was placed

in "Neutral," " Drive," or " Reverse." Finally, Mr. Clyde tested the parking brake by

first visually inspecting the parking brake and cables, which is the usual and

customary inspection of a parking brake, and observed no evidence of damage.

Then, he confirmed that there was sufficient resistance when applying the parking

brake, as in, when engaging the parking brake pedal, the pedal remained engaged

upon removing his foot. Last, he shifted the vehicle out of "Park" and removed his

foot from the service brake with the parking brake engaged. He noted the parking

brake held the vehicle in the same place on the sloped hill, even when the service

brake was disengaged and regardless of what gear the vehicle was in, " Park,"

Neutral," or " Drive."
Mr. Clyde concluded by stating that the results of these

evaluations confirm that the parking pawl, service brake, and parking brake of Ms.

Flake' s Highlander were fully functional and non -defective. More specifically, he

stated that when on the sloped hill, the vehicle stayed in place ( and would have

stayed in place on November 12, 2017) i£ 1) the vehicle was placed in " Park"; 2)

the service brake was engaged; 3) the parking brake was engaged; or 4) any

combination of the above.

P& P further included the transcript of the deposition testimony of Ms. Flake.

Ms. Flake stated that she bought the Highlander in August or September 2015 and

took possession of it in September 2015. She testified that during her ownership of

the vehicle, nothing ever broke or needed fixing. She further testified that she used

the parking brake every time she parked the vehicle and it always held. She recalled

that her husband commented to her about the parking brake on one or two occasions,

noting it was " like it didn' t have any tension to it or something." However, he never

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looked to see if there was anything wrong with the brake pedal, never took it in to

be serviced, and " really wasn' t that concerned because ... it would always hold when

Ms. Flake] pressed it, every time [ she] pressed it."

Ms. Flake testified that her husband performed most of the maintenance on

the Highlander, including oil changes and tire rotations. However, on September

12, 2017, Ms. Flake took the Highlander in for an oil change because her husband

did not have time to do it. She testified that all she expected to have done on that

date was an oil change; she did not expect P& P to do anything else, and she did not

voice any concerns about the vehicle. When asked to review the oil change receipt,

Ms. Flake stated she understood that P& P performed a visual inspection of the

vehicle only and that the inspection did not include any diagnostics for any

mechanical, electrical, noise, or other concerns.

Ms. Flake testified that following the oil change, she used her vehicle and its

parking brake daily without incident. Ms. Flake testified that on the day of the

accident, she and her husband drove the Highlander to church and Waffle House and

the parking brake operated without incident. She testified that she drove the

Highlander to her daughter' s house that afternoon. Ms. Flake stated that when she

arrived at the house, she pressed the parking brake and exited the vehicle. Ms. Flake

testified that she did not remember if she placed her car in park or turned it off.

Additionally, she stated that she could not remember what she did when she returned

to the vehicle, but said that she thought she was getting back inside of the vehicle

when the Highlander started to roll. However, upon reviewing the surveillance

footage taken at her daughter' s house on the day of the accident, Ms. Flake observed

she remained standing on the ground and was reaching into the vehicle when it

started to move.

Ms. Flake' s responses to interrogatories propounded by P& P were also

attached as evidence in support of P& P' s motion for summary judgment. One

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interrogatory asked Ms. Flake to identify the alleged inherent defect in the vehicle,

to which Ms. Flake replied in part:

P] laintiff states that [ P& P], performed a multi -point inspection on
September 12, 2017 wherein [P& P] specifically inspected the operation
of the park brake. [ P& P] indicated that the vehicle' s parking brake was

fully operational and working. This simply was not accurate in that the
parking brake failed to keep the vehicle stationary and allowed the
vehicle to roll rearward during the subject incident.

Finally, the deposition transcript of Joshua Snyder, a neighbor of Ms. Flake' s

daughter who helped rescue Ms. Flake following the accident, was also attached as

evidence in support of P& P' s motion for summary judgment. Mr. Snyder testified

that he could not recall certain details of the scene when he arrived after hearing

another neighbor yell for help. However, after being shown his previously executed

affidavit, he testified that when he arrived where the car and Ms. Flake came to a

stop, the vehicle was turned off, but it was shifted into a gear other than " Park,"

although he could not remember which gear.

In opposition to the motion for summary judgment, Ms. Flake relied on two

videos she created on December 26, 2024, demonstrating the effectiveness of the

parking brake. In one video, the parking brake held the vehicle after it was engaged,

and in the other, it did not. She further relied on the affidavit of Jerry Zamora, an

automotive expert with over thirty-two years of experience in vehicle mechanics,

inspection, and safety standards. Mr. Zamora attested that he reviewed the

December 26, 2024 videos of Ms. Flake and Mr. Flake operating the parking brake

of the Highlander; the surveillance video dated November 12, 2017, capturing the

incident at issue; and documentation indicating that a multi -point inspection was

performed by P& P on September 12, 2017. Mr. Zamora attested that in the video

showing the parking brake working properly, it was evident that Ms. Flake had to

press the parking brake pedal of the vehicle all the way to the floor to engage it. Mr.

Zamora found this to indicate ars, issue with the tension and responsiveness of the

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parking brake mechanism. He opined that such a condition is not consistent with

the proper functionality of a parking brake in good working condition. In the video

of Mr. Flake, despite audible clicks indicating engagement of the parking brake, the

vehicle immediately began rolling backward once his foot was removed from the

brake pedal. Mr. Zamora found this to demonstrate a complete failure of the parking

brake to perform its intended function of holding the vehicle stationary. Mr. Zamora

also attested that the surveillance footage from November 12, 2017, clearly depicts

the vehicle remaining stationary for over a minute after Ms. Flake parked it on an

inclined driveway and engaged the parking brake. He described the video as

showing the vehicle suddenly rolling backward after Ms. Flake leaned in and stated

the sudden movement unequivocally indicates that the parking brake failed entirely

despite being engaged. Mr. Zamora noted that the multi -point inspection of this

vehicle by P& P purportedly included an inspection of the parking brake operation,

which was marked as functional; however, Mr. Zamora opined that based on the

videos of the parking brake engagement and his own expertise, it was evident that

the parking brake was not functioning as intended at the time of the accident. Mr.

Zamora concluded that had P& P properly inspected or tested the parking brake of

the vehicle as part of its multi -point inspection, the defect would have been identified

and corrective measures could have been taken to prevent the failure.

In Mr. Zamora' s supplemental affidavit following the corporate depositions
of P& P, he attested that P& P' s failure to inspect and measure the brake shoe

thickness of the Highlander led to a total lack of identification of issues with the

parking brake system. Also, Mr. Zamora stated that failure to ensure proper brake

shoe thickness can result in an inability to hold the vehicle in place when parked.

Following our de novo review of the motion, we conclude that the trial court

did not err in granting summary judgment in favor of P& P. P& P pointed out the

absence of factual support for an essential element of plaintiff' s claims — an actual

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defect in the Highlander. Without proof of a defect at the time of purchase, Ms.

Flake cannot prove her redhibition claim. Furthermore, without proof of a defect

around the time of the September 2017 multi -point inspection, she cannot show that

P& P was negligent in failing to discover or warn Ms. Flake of a defect. Thereafter,

the burden shifted to Ms. Flake, and we conclude that Ms. Flake failed to produce

evidence sufficient to establish the existence of a genuine issue of material fact. See

La. Code Civ. P. art. 966( D)( 1).

Plaintiff produced no evidence as to any actual defect in the vehicle either at

the time ofpurchase or at the time ofthe September 12, 2017 inspection, highlighting

instead the failure of the brake on the day of the accident. Furthermore, Ms. Flake' s

testing of the vehicle was accomplished seven years after the accident under

unknown conditions and showed the parking brake both holding and not holding the

vehicle in place. Moreover, Ms. Flake' s expert, Mr. Zamora, provided no finding of

a defect following personal evaluation; he only opined that based on Ms. Flake' s

videos, there was an issue with the braking system. Mr. Zamora further noted the

risks and hazards associated with worn brake shoes and rotator discs; however, he

failed to find that the Highlander suffered any of these defects, either at the time of

the inspection or on the date of the incident, as he did not inspect the vehicle.

Although factual inferences reasonably drawn from the evidence must be

construed in favor of the party opposing the motion, mere conclusory allegations,

improbable inferences, and unsupported speculation will not support a finding of a

genuine issue of material fact. Salvador v. Main Street Family Pharmacy, L.L.C.,

2017- 1757 ( La. App. 1st. Cir. 6/ 4/ 18), 251 So. 3d 1107, 1112. Furthermore,

circumstantial evidence may establish the existence of a genuine issue of material

fact to defeat summary judgment, but the response of the adverse party must set forth

specific facts showing a genuine issue of fact exists. McLin v. Stafford, 2019- 0441

La. App. 1st Cir. 12/ 27/ 19), 292 So. 3d 566, 569. The affidavits of Mr. Zamora in

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opposition to the motion set forth conclusory allegations and unsupported

speculation, and thus, do not raise any material facts that would preclude summary

judgment. Wolfe v. Quad -Area Community Action Agency, Inc., 2022- 0203 ( La.

App. 1st Cir. 9/ 16/ 22), 352 So. 3d 992, 996, writ not considered 2022- 01625 ( La.

1/ 11/ 23), 352 So. 3d 562. Accordingly, we find no genuine issue of material fact

remaining. Summary judgment was appropriate.

CONCLUSION

For the aforementioned reasons, we affirm the trial court' s February 28, 2025

judgment granting summary judgment in favor of P& P Automotive Interests, Inc.

and dismissing all of Barbara W. Flake' s claims against P& P Automotive Interests,

Inc. Costs of the appeal are assessed against appellant, Barbara W. Flake.

AFFIRMED.

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