Melinda Keller and Joseph Keller v. Salvador Messina

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-745

MELINDA KELLER AND JOSEPH KELLER

VERSUS

SALVADOR MESSINA, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2003-4108
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

AFFIRMED.

Adam L. Ortego, Jr.
Assistant Attorney General
Louisiana Department of Justice
Division of Risk Litigation
901 Lakeshore Drive, Suite 820
Lake Charles, LA 70601
(337) 491-2844
COUNSEL FOR DEFENDANTS/APPELLANTS:
Salvador Messina
State of Louisiana, Department of State Police

Michael K. Cox
Cox, Cox, Filo & Camel
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFFS/APPELLEES:
Melinda Keller
Joseph Keller

AMY, Judge.

The plaintiff alleges injury after her vehicle was struck from behind by a patrol

unit driven by the defendant State Trooper. She filed a motion for partial summary

judgment, seeking to establish the defendants’ liability for the accident. The trial

court granted the summary judgment. The defendants appeal. For the following

reasons, we affirm.

Factual and Procedural Background

The record indicates that on the date of the accident at issue, January 24, 2003,

Melinda Keller was traveling on Luke Powers Road in Calcasieu Parish. According

to Louisiana State Trooper Salvador Messina, he observed Mrs. Keller’s vehicle and

noted that it appeared to be drifting. Believing that the vehicle’s driver might be

impaired, he pulled his vehicle over, entered Mrs. Keller’s license plate number into

his computer, and then again pulled onto the roadway behind Mrs. Keller’s vehicle.

Trooper Messina explained that he looked in his side view mirror and then his

rear view mirror in order to observe a passing truck that he thought lacked an

inspection tag. When he again looked to the roadway ahead of him, Mrs. Keller’s

vehicle was stopped in the roadway. Mrs. Keller explained that she was attempting

to execute a left turn. Trooper Messina’s patrol vehicle struck Mrs. Keller’s vehicle

from the rear.

Mrs. Keller filed suit, alleging injury as a result of the accident. Mrs. Keller’s

husband and Mrs. Keller, on behalf of her minor son, allege entitlement to damages

for loss of consortium. Trooper Messina and the State of Louisiana, Department of

the State Police were named as defendants.

Mrs. Keller filed a motion for partial summary judgment on the issue of fault.

The trial court granted the summary judgment, entering judgment against the

defendants and observing that Trooper Messina “is solely at fault for this accident.”

The defendants appeal, asserting that genuine issues of material fact preclude

the entry of summary judgment.

Discussion

The defendants do not question the determination that, as the following vehicle,

Trooper Messina was at fault in causing the rear-end accident. However, the

defendants argue that summary judgment on the issue of liability was inappropriate

insofar as it found that there was no fault on the part of Mrs. Keller. In particular, the

defendants contend that genuine issues of material fact exist as to whether Mrs. Keller

stopped too quickly or whether she appropriately signaled her intention to turn.

Louisiana Code of Civil Procedure Article 966(B) provides, in part, that

summary judgment “shall be rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to material fact, and that mover is entitled to

judgment as a matter of law.” Paragraph C(2) sets forth the burden of proof

applicable to the motion for summary judgment, providing:

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for one
or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.

2

On appeal, a trial court’s ruling on a motion for summary judgment is reviewed

pursuant to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.

4/14/04), 870 So.2d 1002.

With regard to the defendants’ liability for the accident, La.R.S. 32:81(A)

provides that “[t]he 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.” In Mart v. Hill, 505

So.2d 1120, 1123 (La.1987), the Louisiana Supreme Court referenced the

jurisprudential precept that “a following motorist in a rear-end collision is presumed

to have breached the standard of conduct prescribed in La.[R.S.] 32:81 and hence is

presumed negligent.”

In light of this guidance regarding a following motorist’s conduct, Trooper

Messina’s fault in the causation of the accident is established and in the defendants’

brief to this court, it is observed that the trial court’s finding of fault on the part of

Trooper Messina appears appropriate. The defendants’ point of contention is whether

genuine issues of material fact exist with regard to whether Mrs. Keller was also at

fault in causing the accident insofar as she may have stopped too quickly or failed to

adequately signal her intention to turn.1

1
Louisiana Revised Statutes 32:104 provides, in part, that:

B. Whenever a person intends to make a right or left turn which will take
his vehicle from the highway it is then traveling, he shall give a signal of such
intention in the manner described hereafter and such signal shall be given
continuously during not less than the last one hundred (100) feet traveled by the
vehicle before turning.

C. No person shall stop or suddenly decrease the speed of a vehicle
without first giving an appropriate signal in the manner provided herein to the driver
of any vehicle immediately to the rear when there is opportunity to give such signal.

3

The defendants pose a number of questions they suggest remain unanswered

which could indicate that Mrs. Keller breached the standard of conduct required of

her. However, their assertions are not supported by the evidence, and there is no

indication that the defendants will be able to demonstrate comparative fault on the

part of Mrs. Keller at trial. See La.Civ.Code art. 2323.2

Mrs. Keller introduced her own deposition in which she stated that she had

engaged her turn signal indicating her intention to turn left. The defendants lack

evidence to contravene this statement. Although Trooper Messina explained that he

did not see Mrs. Keller’s turn signal activated, he denied that he was able to state

whether it was or was not activated. Furthermore, upon questioning by counsel

regarding Mrs. Keller’s role in the accident, he responded as follows:

Q. Okay. In your opinion, was there anything that my client did to
contribute to the accident?

A. In my opinion?

Q. Yes, sir.

A. She - - I think she stopped quick. I was - - I was probably about
three car lengths from her the last time I saw her. A truck passed; I
looked up; and when I looked up again, she was stopping. That’s the
only thing that I - - I mean, I know I hit her in the rear; and I know what
the law is in the State of Louisiana. And the only thing I say is she
stopped real quick. That’s just my opinion.

2
The alleged fault of Mrs. Keller is relevant due to the requirements of La.Civ.Code art.
2323(A), which provides:

In any action for damages where a person suffers injury, death, or loss, the
degree or percentage of fault of all persons causing or contributing to the injury,
death, or loss shall be determined, regardless of whether the person is a party to the
action or a nonparty, and regardless of the person’s insolvency, ability to pay,
immunity by statute, including but not limited to the provisions of R.S. 23:1032, or
that the other person’s identity is not known or reasonably ascertainable. If a person
suffers injury, death, or loss as the result partly of his own negligence and partly as
a result of the fault of another person or persons, the amount of damages recoverable
shall be reduced in proportion to the degree or percentage of negligence attributable
to the person suffering the injury, death, or loss.

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Trooper Messina explained that, due to the accident, he was unable to interview Mrs.

Keller or conduct the investigation of the accident and thus, he could offer no

testimony regarding his initial impression that the driver of the vehicle may have been

incapacitated.

As Trooper Messina’s deposition indicates, the defendants offer only

speculation as to potentially negligent conduct by Mrs. Keller. Such speculation is

insufficient to rebut Mrs. Keller’s evidence that she was free from fault in causing the

accident. See Jones, 870 So.2d 1002 (wherein the Louisiana Supreme Court

discussed the inadequacy of speculation as a basis for defeating a motion for

summary judgment). See also Babin v. Winn-Dixie La., Inc., 00-78 (La. 6/30/00), 764

So.2d 37. This speculation, without more, fails to indicate that the defendants will

be able to demonstrate at trial that Mrs. Keller was comparatively at fault in causing

the accident. The motion for partial summary judgment was appropriately granted.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed to the defendants, Salvador Messina and the State of

Louisiana, Department of State Police in the amount of $327.50.

AFFIRMED.

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