Billie Sam v. State of Louisiana, Dept. of Transportation & Development

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 12-1200

BILLIE SAM

VERSUS

STATE OF LOUISIANA, DEPT. OF TRANSPORTATION &
DEVELOPMENT

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 116595
HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and John E. Conery,
Judges.

AFFIRMED.

Carol Stookey Hunter
Assistant Attorney General
556 Jefferson Street, 4th Floor
Lafayette, Louisiana 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana, Department of Transportation & Development

John Martin Jefcoat
Galloway & Jefcoat
Post Office Box 61550
Lafayette, Louisiana 70596-1550
(337) 984-8020
COUNSEL FOR PLAINTIFF/APPELLANT:
Billie Sam

CONERY, Judge.

Plaintiff, Billie Sam (Sam), filed suit on January 14, 2010, against the State

of Louisiana through the Department of Transportation and Development (DOTD)

to recover damages and injuries sustained when her vehicle was crossing the

Morbihan Bridge on Highway 344 in the Parish of Iberia and hit two steel “struts”

near the right side of the bridge.1 Following a hearing, the trial court granted

summary judgment in favor of DOTD, thereby dismissing Sam’s petition with

prejudice, finding Sam would be unable to sustain her burden of proof on the issue

of notice. Sam appeals arguing the trial court erred in finding that DOTD did not

have the necessary “notice” of the defect. She claims she would be able to sustain

her burden of proof at trial. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 22, 2009, at approximately 6:30 A.M., while it was still dark,

Sam was on her way to work at Willow Wood Park in New Iberia from her home

in St. Martinville. In order to reach her place of employment, Sam was required to

cross the Morbihan Bridge, an off-center swing bridge which transverses the

Bayou Teche near New Iberia, Louisiana. The bridge has a concrete entrance, but

the center portion is covered with steel grid decking which pivots to allow marine

traffic to pass.

The Morbihan Bridge is an on-call bridge. The procedure for opening the

bridge requires the vessel seeking passage on the Bayou Teche to contact DOTD,

who sends an on call tender/operator to open the bridge to marine traffic. In

addition to opening and closing the bridge, the tender/operators are required to
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Sam originally filed suit in St. Martin Parish. DOTD filed Declinatory Exceptions of
Insufficiency of Citation and Service of Process and Improper Venue. Plaintiff responded with a
Motion and Order to Transfer Venue and Incorporated Memorandum, which was granted by the
trial court on April 12, 2010, transferring venue to Iberia Parish.

perform bridge maintenance, including lubricating and cleaning the bridge, as well

as sweeping the roadway and maintaining the bridge houses.

Sam alleged she was traversing the steel grid decking portion of the bridge

and was nearing the end of the bridge when she encountered two “bumps,” which

caused her car to shut off. She claims that the front end of her vehicle was

damaged, the passenger side tire was flattened, air was lost from the driver’s side

tire, and the power steering fluid began to leak. Sam described the objects which

allegedly caused the damage to her vehicle as “steeps,” iron and wood structures

approximately two and one half feet wide near the right side of the bridge. After

the incident, Sam claims she was in shock and later that night began to experience

pain in her neck and back for which she claims damages for physical pain and

suffering. She also claims property damage for her vehicle.

On February 14, 2012, DOTD filed a Motion for Summary Judgment which

was fixed for hearing on March 21, 2012. The hearing was held as scheduled on

March 21, 2012, and the trial court took the matter under advisement. The trial

court’s written Reasons for Judgment in favor of DOTD were signed on April 27,

2012. On June 13, 2012 a Judgment reflecting the trial court’s written reasons and

dismissing Sam’s petition with prejudice was signed by the trial court.

Sam urges that the trial court erred in granting summary judgment in favor

of DOTD. The trial court held that Sam would be unable to meet her burden of

proof at trial to establish that DOTD had actual or constructive notice of the

possible defect in the steel grating of the bridge and failed to take the necessary

corrective measures within a reasonable time, a key element necessary to sustain

Sam’s burden of proof.

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DISCUSSION

Summary Judgment Issue

Summary judgments are reviewed de novo, applying the same standard to

the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp.,

Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. Summary judgment is favored by the

law and provides a vehicle by which the just, speedy, and inexpensive

determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The

trial court is required to render summary judgment 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. La.Code Civ.P. art. 966(B).2

In 1997, the legislature enacted La.Code Civ. art. 966(C)(2) which clarified

the burden of proof in summary judgment proceedings. The initial burden of proof

remains with the mover to show that no genuine issue of material fact exists. If the

mover has made a prima facie showing that the motion should be granted, the

burden shifts to the non-moving party to present evidence demonstrating that a

material factual issue remains. “[T]he failure of the non-moving party to produce

evidence of a material factual dispute mandates the granting of the motion.”

Hutchinson v. Knights of Columbus, Council No. 5747, 03–1533, p. 6 (La. 2/20/04),

866 So.2d 228, 233; Hardy v. Bowie, 98–2821, (La. 9/8/99), 744 So.2d 606.

When a motion for summary judgment is made and supported, the adverse

party may not rest on the allegations or denials of his pleadings, but must set forth

specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art.

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La.Code Civ.P.art.966(B) was amended in 2012 to delete “on file.” However as this
case was filed prior to the amendment the former version is applicable.

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967(B). A fact is material when its existence or nonexistence may be essential to a

plaintiff’s cause of action under the applicable theory of recovery. “[F]acts are

material if they potentially insure or preclude recovery, affect a litigant's ultimate

success, or determine the outcome of the legal dispute.” Smith, 639 So.2d at 751

(citations omitted) (alteration in original). In other words, a “material” fact is one

that would matter on the trial on the merits. “Any doubt as to a dispute regarding a

material issue of fact must be resolved against granting the motion and in favor of

a trial on the merits.” Id.

In determining whether a fact is material, we must consider the substantive

law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3

Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427.

In order to prove liability on the part of DOTD under a theory of negligence

pursuant to La.Civ.Code art. 2315, or based on strict liability, pursuant to

La.Civ.Code art. 2317, or pursuant to La.R.S. 9:2800, which is applicable to public

entities, a plaintiff must establish the following: (1) DOTD has custody of the thing

which caused the plaintiff’s injuries or damages; (2) the thing was defective

because it had a condition which created an unreasonable risk of harm; (3) DOTD

had actual or constructive notice of the defect and failed to take corrective

measures within a reasonable time; and (4) the defect was a cause-in-fact of

plaintiff’s injuries and damages. Netecke v. State ex. rel. DOTD, 98-1182, 98-1197,

(La. 10/19/99), 747 So.2d 489.

Actual Or Constructive Notice Of The Defect/Failure To Take Corrective
Measures Within A Reasonable Time

At the hearing held on March 21, 2012, DOTD submitted into evidence the

Affidavit of Murphy J. Ledoux, Jr. (Ledoux), the Assistant District Administrator

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for Operations for DOTD. Ledoux oversees the maintenance of state highways in

his district, including the Morbihan Bridge on Louisiana Highway 344. In his

affidavit, Ledoux testified he reviewed the DOTD records for the period beginning

June 22, 2008, and continuing through June 23, 2009. His review revealed DOTD

had no prior notice of any loose grating on the Morbihan Bridge at the location of

Sam’s incident prior to the morning of January 22, 2009, at approximately 7:30

a.m.

Attached as exhibits to Ledoux’s affidavit were four documents dated

January 22, 2009 or January 23, 2009, each entitled “DOTD/ORM [Office of Risk

Management] Report Of Road Hazard Incident.” The four documents

memorializing the January 22, 2009 incidents were recorded by Merline Coleman,

Administrator Co-Coordinator 3, and reflect the following:

The DOTD/ORM received a telephone call from Sam at approximately 7:30

a.m. on January 22, 2009, informing it that at 6:35 a.m. she hit a piece of “grading”

while crossing the Morbihan Bridge “causing the front and rear tires on the

passenger side to blow.” Additionally the front driver’s side tire lost all air and

there was damage to the rim of the vehicle.

The DOTD/ORM received a telephone call from Matthew Landry at 7:40

a.m. on January 22, 2009, informing it that while traveling towards Louisiana

Highway 86 he hit a piece of “grading” on the Morbihan Bridge at about 6:15 a.m.

The DOTD/ORM received a telephone call from Lindy Judice at 7:45 a.m.,

advising it that at 6:40 a.m., while traveling toward Louisiana Highway 86, she hit

a piece of “grading” on the Morbihan Bridge, which “busted” her front passenger

tire and caused damage to the rim.

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The DOTD/ORM received a telephone call from Donald Gachassin on

January 23, 2009, stating his wife hit an iron plate sticking up on the Morbihan

Bridge the previous day at approximately 6:30 a.m., causing a cut in one of the

tires of her 2006 H-3 Hummer.

The affidavit of Ledoux and the four attached documents, including the

report made to DOTD by Sam on the morning of January 22, 2009, support

DOTD’s contention that: (1) In the early morning hours of January 22, 2009,

DOTD had no knowledge or notice that there was loose grating on the Morbihan

Bridge; and (2) DOTD had no notice or knowledge there was loose grating on the

Morbihan Bridge at any time from the period beginning June 22, 2008, until it

received the four telephone calls beginning at 7:30 a.m. on January 22, 2009, one

of which was from Sam, reporting the damage caused by the loose grating on the

Morbihan Bridge.

DOTD also submitted the affidavit of Kevin Leleux, (Leleux) who is

currently DOTD’s Bridge Inspection, Maintenance and Operations Supervisor for

District 3, which includes Iberia Parish and the Morbihan Bridge spanning the

Bayou Teche. Leleux confirmed that the Morbihan Bridge was under the custody

and control of DOTD on January 22, 2009. He attested the Morbihan Bridge is an

on-call bridge, which is not manned at all times, but only when there is a need to

open the swing bridge to allow marine traffic to pass. The marine traffic contacts

DOTD, and the bridge operators respond and open the bridge and then continue to

follow the marine traffic along the bayou to open other swing bridges to allow

passage along the Bayou Teche.

The record reflects that the Morbihan Bridge had been opened for the

passage of marine traffic on January 20, 2009, two days prior to the incident on

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January 22, 2009. Sam testified in her deposition that, prior to January 22, 2009,

she had never experienced any problems with the grating on the Morbihan Bridge

and had in fact crossed the Morbihan Bridge without any problems on January 21,

2009, the day before the incident.

The affidavits submitted on behalf of DOTD, as well as the supporting

documentation of the three other reports of incidents occurring on the Morbihan

Bridge at approximately the same time as Sam’s incident, together with Sam’s own

testimony, clearly support the trial court’s ruling that DOTD did not have either

actual or constructive notice, much less any time to take corrective measures to

repair the bridge prior to Sam’s incident occurring on January 22, 2009 at 6:35

a.m.

As DOTD had made a prima facie showing that its motion should be granted,

the burden then shifted to Sam pursuant to La.Code Civ.P. art. 966(C)(2), to

present evidence demonstrating that a material factual issue remains. “[T]he failure

of the non-moving party to produce evidence of a material factual dispute

mandates the granting of the motion.” Hutchinson, 866 So.2d at 233.

Louisiana Code of Civil Procedure Article 967(B) states:

When a motion for summary judgment is made and supported as
provided above, an adverse party may not rest on the mere allegations or
denials of his pleading, but his response, by affidavits or as otherwise
provided above, must set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judgment, if appropriate,
shall be rendered against him.

The trial court in its written reasons cited Babin v. Winn-Dixie, 00-0078,

(La. 6/30/00), 764 So.2d 37, for the proposition that the customer failed to show

that the store had constructive notice of toothpick boxes which allegedly caused a

fall on the store floor. In Babin, the store produced the affidavit of its employee

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who stated she had inspected the aisle ten minutes prior to the customer’s fall and

did not observe any toothpick boxes on the floor. The customer was unable to

produce any factual support for his contention that toothpick boxes were on the

floor for some period of time before his fall.

In this case, the same principle applies. The trial court in its reasons found

that Sam acknowledged that the “exact cause” of the damage to her vehicle is yet

unknown. Sam argues there are two potential causes for the steel protrusions; (1) a

malfunction in the wedge system within the Morbihan Bridge or (2) metal grating

fatigue and broken welds on the decking of the bridge. The trial court found that

Sam “merely speculates and suggests as to the cause of the condition.” We agree

with the trial court that the “speculation falls short of the factual support”

necessary for Sam to sustain her evidentiary burden of proof against DOTD. No

matter what the possible cause of the problem on the Morbihan Bridge, it has no

bearing on the “actual or constructive notice” of DOTD. Sam offered no factual

support or documentation to contradict the overwhelming documentation presented

by DOTD that it did not know about a problem with the grating on the Morbihan

Bridge until January 22, 2009, the morning of Sam’s incident. In fact, as shown by

the DOTD affidavit, Sam’s call at 7:30 a.m. was its first notice.

Based on our de novo review of the record, we conclude DOTD did not

receive the required actual or constructive notice, much less any time to take

corrective measures to repair the Morbihan Bridge prior to Sam’s incident on

January 22, 2009. Thus, Sam will be unable to sustain her evidentiary burden at

trial, and the trial court’s ruling granting summary judgment in favor of DOTD

was entirely correct and more than adequately supported by the evidence submitted

in support thereof.

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CONCLUSION

For the forgoing reasons, we affirm the trial court’s judgment granting the

State of Louisiana, through the Department of Transportation and Development’s

motion for summary judgment, dismissing Billie Sam’s Petition with prejudice.

All costs of this appeal are assessed to Appellant Billie Sam.

AFFIRMED.

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