Shane Maylen and Penelope Maylen v. Great West Casualty Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-484

SHANE MAYLEN AND
PENELOPE MAYLEN

VERSUS

GREAT WEST CASUALTY COMPANY,
GROENDYKE TRANSPORT, INC., AND
DAVID MAJORIA

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2012-3794
HONORABLE SHARON DARVILLE WILSON, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Gregory P. Marceaux
Marceaux Law Firm, L.L.C.
2901 Hodges Street
Lake Charles, Louisiana 70601
(337) 310-2233
Counsel for Plaintiffs/Appellants:
Shane Maylen
Penelope Maylen

G. Bruce Parkerson
Lacey E. Sarver
Plauché Maselli Parkerson, L.L.P.
701 Poydras Street, Suite 3800
New Orleans, Louisiana 70139
(504) 582-1142
Counsel for Defendants/Appellees:
Great West Casualty Company
Groendyke Transport, Inc.
David Majoria

KEATY, Judge.

Plaintiffs, Shane Maylen and Penelope Maylen, appeal the trial court’s

judgment granting a Motion for Summary Judgment in favor of Defendants, Great

West Casualty Company (Great West), Groendyke Transport, Inc., and David

Majoria. For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

The instant matter involves a negligence action arising out of a one-vehicle

automobile accident which occurred on April 13, 2012. The chain of events

leading up to the collision began when a tractor-trailer driven by David, a

Groendyke Transport employee, entered into the right lane of Interstate 210 from

the shoulder of the road. Once David merged onto the interstate, he was followed

by an unknown second vehicle. Shane’s brother, Raymond Maylen, was operating

a truck and was towing a thirty-three-foot camper in the right lane of Interstate 210

behind the second vehicle. When David merged onto the interstate, Raymond

slammed on his brakes and then continued driving. Shane, who was also driving a

truck that was towing an eighteen to twenty-foot camper and a sixteen-foot boat in

tandem in the right lane of Interstate 210, was traveling behind Raymond. When

Shane observed Raymond apply his brakes, he applied his brakes and drove his

truck, camper, and boat to the right shoulder. Shane then drove off the shoulder

and onto the grass where his camper jack-knifed, causing him to sustain a right-

shoulder injury. Neither the second nor the third vehicle was involved in a

collision.

As a result, Shane and his wife, Penelope, filed a Petition for Damages and a

First Supplemental and Amending Petition for Damages against David, his

employer, Groendyke Transport, and its liability insurer, Great West. Plaintiffs

alleged that David’s negligence caused Shane’s injury. Defendants filed its

exceptions and an answer to the petition. Following the exchanging of discovery

and the taking of depositions, Defendants filed a Motion for Summary Judgment.

In its motion, Defendants contended that since the second and third vehicles

avoided a collision, David, as the driver of the lead vehicle, was not liable for

injuries sustained by the driver of the fourth vehicle, Shane. Following a hearing,

the trial court orally granted Defendants’ Motion for Summary Judgment. Its

ruling was reduced to writing on September 22, 2014. Plaintiffs appealed.

On appeal, and in their sole assignment of error, Plaintiffs contend that the

trial court erred in granting Defendants’ Motion for Summary Judgment by finding

that there lacked a genuine contested material fact regarding whether David was

liable for Shane’s damages.

STANDARD OF REVIEW

In Whitbeck v. Champagne, 14-245, p. 9 (La.App. 3 Cir. 10/1/14), 149 So.3d

372, 379, this court stated the following:

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 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, together with the affidavits, if any,
admitted for purposes of the motion for summary judgment, 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).

We will, therefore, use the de novo standard of review in the instant matter.

DISCUSSION

Plaintiffs contend that the trial court erred by finding that there lacked a

genuine contested material fact regarding whether David was liable for Shane’s

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damages. To determine whether David was liable, we must employ the duty-risk

analysis to determine whether he was negligent. Boykin v. Louisiana Transit Co.,

Inc., 96-1932 (La. 3/4/98), 707 So.2d 1225. The duty-risk analysis requires proof

of the following elements to determine liability in a negligence case:

(1) proof that the defendant had a duty to conform his conduct to a
specific standard (the duty element); (2) proof that the defendant’s
conduct failed to conform to the appropriate standard (the breach
element); (3) proof that the defendant’s substandard conduct was a
cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4)
proof that the defendant’s substandard conduct was a legal cause of
the plaintiff’s injuries (the scope of liability or scope of protection
element); and (5) proof of actual damages (the damages element).

Id. at 1230 (citations omitted).

With respect to duty, Louisiana law provides that, “[a] motorist attempting

to enter the highway from the shoulder of the road is held to the same standard of

care as the motorist entering a highway from a private driveway. The motorist

entering a highway from a private driveway has the primary duty to avoid a

collision.” Loveday v. Travelers Ins. Co., 585 So.2d 597, 602 (La.App. 3 Cir.),

writ denied, 590 So.2d 65 (La.1991). Louisiana Revised Statutes 32:124 further

provides:

The driver of a vehicle about to enter or cross a highway from a
private road, driveway, alley or building, shall stop such vehicle
immediately prior to driving onto a sidewalk or onto the sidewalk area
extending across any alleyway or driveway, and shall yield the right
of way to any pedestrian as may be necessary to avoid collision, and
shall yield the right of way to all approaching vehicles so close as to
constitute an immediate hazard.

We next review Shane and Raymond’s deposition testimony in the instant

matter to determine David’s duty and whether he breached his duty. Raymond

testified that on the date of the accident, he was operating a truck which was

towing a thirty-three-foot camper on the interstate. His testimony indicates that

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when he first spotted David’s vehicle, it was rolling on the shoulder of the

interstate for approximately 100 yards with its left blinker engaged. Raymond

testified that once David merged onto the interstate, a car that was following David

slammed on its brakes. His testimony indicates that when this second car slammed

on its brakes, Raymond slammed on his brakes. He testified that when the second

car slammed on its brakes, the distance between it and David’s vehicle was

approximately “a little more” than a truck length. At that same time, the distance

between the second vehicle and Raymond’s vehicle was approximately “[t]wo or

three car lengths” according to his initial deposition testimony, although he

increased the distance to six to eight car lengths pursuant to an errata sheet dated

February 20, 2013, and filed into the record. Raymond testified that after David

merged onto the interstate, the second vehicle pulled to the shoulder although he

did not think it stopped, but rather “kept going.” He testified that he began

swerving after applying his brakes, and after he stopped swerving, he continued

driving.

Shane testified that he was driving a truck on the interstate while towing an

eighteen or twenty-foot camper and a sixteen-foot boat. He testified that Raymond

was traveling approximately five or more seconds in front of him when he

observed Raymond apply his brakes. Shane’s testimony indicates that because

Raymond pressed his brakes, he slammed on his brakes. Shane subsequently

drove his vehicle to the right shoulder where he traveled “[a] good ways”

according to his testimony. Shane testified that rather than stopping on the

shoulder, he traveled off the road into the grassy area as he believed it was safer.

Shane testified that his camper jack-knifed after he went off the road. According

to Shane’s testimony, after his vehicle jack-knifed, he knew that Raymond was

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okay because he “didn’t see [Raymond] in front of me wrecked. I didn’t see any

debris.” Shane also testified that after he jack-knifed, he did not see any other

vehicles and that he did not witness any other vehicles travel off of the roadway.

In the instant matter, David’s duty was to “yield the right of way to all

approaching vehicles so close as to constitute an immediate hazard.” La.R.S.

32:124. According to the foregoing testimony, David’s blinker was engaged prior

to merging onto the interstate. Once David merged onto the interstate and caused

the second and third vehicles to press their brakes, a distance of approximately “a

little more” than a truck length separated David from the second vehicle, and

approximately six to eight car lengths separated the second car from Raymond’s

car. Neither the second nor the third car was forced to make a complete stop or

travel off of the shoulder of the road. Neither the lead, nor the second, nor the

third vehicle was involved in a collision. Accordingly, the summary judgment

evidence shows that David did not fail to yield to “the approaching vehicles so

close as to constitute an immediate hazard.” La.R.S. 32:124. Thus, David did not

breach his duty.

Additionally, David cannot be held liable based upon the fourth circuit’s

holding in Petty v. State Farm Mutual Automobile Insurance Co., 06-1069 (La.App.

4 Cir. 2/7/07), 952 So.2d 767, wherein the driver of the lead vehicle struck a

mattress on the interstate which became lodged under her vehicle, causing her to

stop. The driver of the second vehicle stopped and avoided colliding with the lead

vehicle. The driver of the third vehicle also stopped and avoided colliding with the

second vehicle. The fourth vehicle, however, collided with the third vehicle,

pushing it into the second vehicle which in turn was pushed into the lead vehicle.

The fourth circuit held:

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Regardless, there is no genuine issue as to the fact that the
second and third vehicles were able to stop in time to avoid the
collision. Therefore, as a matter of law, Martin in the lead vehicle
and her insurer, State Farm, cannot be held liable for any damages
sustained by the plaintiffs.

Id. at 769.

The facts in the instant matter are analogous to the facts in Petty, 952 So.2d

767, in that both lead drivers were involved in a four-car chain reaction. The

testimony in the instant case shows that the operators of the second and third

vehicles stopped and avoided a collision, just like the operators of the second and

third vehicles in Petty, initially stopped and avoided a collision. Based upon the

holding in Petty, we find that David cannot be held liable for any damages

sustained by Shane.

The trial court in this case held that David was not liable for Plaintiffs’

damages at the hearing on Defendants’ Motion for Summary Judgment when it

stated:

I have reviewed the relevant portions of the depositions of both of the
Maylen brothers. And also looked at the case law that has been sited
[sic] to me by counsel. And given that, I do not feel that there are any
genuine issues of material fact and the - - I can’t see how I cannot
follow the cases that are before. So the Motion for Summary
Judgment is granted.

Accordingly, we find that the trial court did not err in granting Defendants’ Motion

for Summary Judgment.

In their brief, Plaintiffs invoke the sudden emergency doctrine in order for

this court to reverse the trial court’s judgment. Plaintiffs rely on the case of

Hickman v. South Pacific Transport Co., 262 So.2d 385, 389 (La.1972) which

explains the sudden emergency doctrine as follows:

One who suddenly finds himself in a position of imminent peril,
without sufficient time to consider and weigh all the circumstances or

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best means that may be adopted to avoid an impending danger, is not
guilty of negligence if he fails to adopt what subsequently and upon
reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his own
negligence.

Plaintiffs contend that when presented with the sudden emergency created

by David merging onto the highway, which caused Raymond’s car and trailer to

sway, Shane was not obligated to follow what may have been the best method.

According to Shane’s deposition testimony, the best method would have been to

stop on the shoulder of the road rather than traveling off the roadway.

As discussed above, the deposition testimony shows that the car immediately

following David was at least one truck length or more behind him. The deposition

testimony shows that Raymond was six to eight car lengths behind the second car,

and Shane was four to five seconds or more behind Raymond’s vehicle. Given the

distance between all four vehicles, and since neither the second nor third vehicle

was involved in a collision, the evidence does not support a finding that David’s

act of entering the interstate created a sudden emergency for Shane.

Moreover, the facts in Hickman, 262 So.2d 385, are readily distinguishable

from the facts in the instant case. In Hickman, a two-vehicle collision occurred

when a truck which was stopped crosswise in the highway, partially blocking both

the northbound and southbound lanes, was struck by a motorcycle. The supreme

court held that the truck driver’s act of “driving his van truck from a private

driveway into a main thoroughfare, a favored highway, in the path of the oncoming

motorcycles, blocking and obstructing free passage in both lanes of travel, was a

clear violation of the duty [the driver] owed to motorists traveling on Highway

171.” Id. at 388.

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The instant matter only involved a single vehicle accident, and David never

stopped his vehicle once he merged onto the interstate; whereas, the Hickman case

involved a two-vehicle collision, and the truck driver was stopped on the interstate.

Shane never hit David’s vehicle in this case; whereas, the motorcycle plaintiff in

Hickman actually hit the truck. Importantly, and unlike Hickman, 262 So.2d 385,

wherein the supreme court found that the truck driver breached his duty, there is no

evidence showing that David breached his duty by failing to yield to “the

approaching vehicles so close as to constitute an immediate hazard.” La.R.S.

32:124.

Accordingly, the trial court’s judgment is affirmed.

DECREE

The trial court’s grant of Motion for Summary Judgment by Defendants,

Great West Casualty Company, Groendyke Transport, Inc., and David Majoria, is

affirmed. All costs of this appeal are assessed to Plaintiffs, Shane Maylen and

Penelope Maylen.

AFFIRMED.

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