Janet Troquille v. Stirling Properties, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-561

JANET TROQUILLE

VERSUS

STIRLING PROPERTIES, INC., ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 246,019
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

REVERSED, RENDERED, AND REMANDED.

Michael Thomas Johnson
Johnson & Siebeneicher
P. O. Box 648
Alexandria, LA 71309
(318) 484-3911
COUNSEL FOR DEFENDANT-APPELLEE:
Liberty Mutual Insurance Co.
Stirling Properties, Inc.

Marvin Gros
Law Office of Marvin Gros
P. O. Box 1040
Donaldsonville, LA 70346
(225) 473-7868
COUNSEL FOR PLAINTIFF-APPELLANT:
Janet Troquille

PICKETT, Judge.

Janet Troquille appeals the judgment of the trial court granting the motion

for summary judgment filed by the defendants, Stirling Properties, Inc., and their

insurer, Liberty Mutual Insurance Company.

STATEMENT OF THE CASE

While walking through a parking lot, Mrs. Troquille collided with a metal

handicap sign atop a concrete pedestal. She suffered lacerations to her face. She

sued Stirling Properties, the owner of the parking lot, and its insurer, Liberty

Mutual (collectively “the defendants”). In her deposition, Troquille admitted that

she was talking to her husband and not watching where she was going at the time

of the accident. The defendants filed a motion for summary judgment.

In opposition to the motion for summary judgment, Troquille included an

affidavit from an expert, Mitchell A. Wood. The defendants filed a motion to

strike the affidavit of Mr. Wood, alleging that it did not meet the reliability

requirements of expert testimony found in La.Code Evid. art. 702. Following a

hearing, the trial court granted the motion to strike the affidavit of Mr. Wood and

granted the defendants motion for summary judgment. Mrs. Troquille appeals.

ASSIGNMENTS OF ERROR

On appeal, Mrs. Troquille asserts one assignment of error:

The district court erred in excluding the expert affidavit given
by plaintiff’s expert and in granting summary judgment without
considering that affidavit.

DISCUSSION

“Appellate courts review summary judgment de novo, using the
same criteria that govern the trial court's consideration of whether
summary judgment is appropriate, and in the light most favorable to
the non-movant.” Yokum v. 615 Bourbon Street, L.L.C., 07-1785, p.

25 (La.2/26/08), 977 So.2d 859, 876 (citing Suire v. Lafayette City-
Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37).
Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he
summary judgment procedure is designed to secure the just, speedy,
and inexpensive determination of every action,” and this “procedure is
favored and shall be construed to accomplish these ends.” “[I]f 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,” then judgment shall be granted as a matter
of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C).

Kleinman v. Bennett, 11-947, pp. 3-4 (La.App. 3 Cir. 12/7/11), 80 So.3d 689, 691-

92.

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 (La.

2/29/00), 755 So.2d 226, our supreme court concluded that affidavits from experts

that are not based on personal knowledge are admissible to support or defend

against a motion for summary judgment. In reaching this conclusion, the court

stated:

[S]everal important underlying principles must be reinforced. The
first is that the trial judge cannot make credibility determinations on a
motion for summary judgment. See Sportsman Store of Lake Charles,
Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-C-0201, p. 6
(La.10/19/99), 748 So.2d 417 (“[t]he rule that questions of credibility
are for the trier of fact applies to the evaluation of expert testimony”);
[Frank L. Maraist and Harry T. Lemmon, 1 Louisiana Civil Law
Treatise, Civil Procedure, § 6.8, p. 145 (1999)] (“[i]n deciding a
motion for summary judgment, the court must assume that all of the
affiants are credible ...”). . . .Third, the court “must draw those
inferences from the undisputed facts which are most favorable to the
party opposing the motion.” Maraist & Lemmon, supra, p. 145.
Fourth, and most importantly, summary judgments deprive the
litigants of the opportunity to present their evidence to a jury and
should be granted only when the evidence presented at the motion for
summary judgment establishes that there is no genuine issue of
material fact in dispute. If a party submits expert opinion evidence in
opposition to a motion for summary judgment that would be
admissible under Daubert-Foret and the other applicable evidentiary
rules, and is sufficient to allow a reasonable juror to conclude that the
expert’s opinion on a material fact more likely than not is true, the
trial judge should deny the motion and let the issue be decided at trial.

Id. at 236 (footnote omitted).

2

The trial court found that because Mr. Wood, the expert retained by Mrs.

Troquille, based his conclusions on photographs rather than personal knowledge,

his affidavit was inadmissible. Mr. Wood’s affidavit stated that the base of the

sign Mrs. Troquille ran into should have been more clearly marked. He based his

opinion on a “code,” but did not specify which code. Mrs. Troquille introduced

Mr. Wood’s qualifications and a list of cases in which he has testified as an expert.

The trial court specifically stated that it found Mr. Wood qualified. We find the

trial court erred in ruling the affidavit of Mr. Wood inadmissible.

We now turn to the question of whether summary judgment was appropriate

if the affidavit of Mr. Wood is considered. We find the affidavit creates a genuine

issue of material fact about the hazard the handicap sign posed to Mrs. Troquille

and the duty of Stirling Properties to ensure that the sign was properly marked.

We reverse the judgment of the trial court.

CONCLUSION

The expert affidavit of Mr. Wood is admitted. The judgment of the trial

court granting summary judgment to the defendants is reversed. The case is

remanded to the trial court for further proceedings consistent with this opinion.

Costs of this appeal are assessed to Stirling Properties and Liberty Mutual

Insurance Company.

REVERSED, RENDERED, AND REMANDED.

3