Gerald R. White, Et Ux v. Louisiana Department of Transportation & Development

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-741

GERALD R. WHITE, ET UX

VERSUS

LOUISIANA DEPARTMENT OF
TRANSPORTATION & DEVELOPMENT, ET AL

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 253,702, DIV. A
HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

**********

JONATHAN W. PERRY
JUDGE

Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry,
Judges.

REVERSED AND REMANDED.

Fred A. Pharis
Pharis Law Offices
831 DeSoto Street
Alexandria, Louisiana 71301
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Gerald R. White and Charlotte White

Jerold Edward Knoll
The Knoll Law Firm, LLC
Post Office Box 426
Marksville, Louisiana 71351
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Gerald R. White and Charlotte White

Jeff Landry
Attorney General
Paula E. Miles
Assistant Attorney General
Louisiana Department of Justice
900 Murray Street, Suite B-100B
Alexandria, Louisiana 71301
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana, Through the Department
of Transportation and Development

PERRY, Judge.

Plaintiffs, Gerald and Charlotte White, appeal the judgment of the trial court

granting the motion for summary judgment filed by Defendant, State of Louisiana,

Through the Department of Transportation and Development (DOTD), and

dismissing Plaintiffs’ claims with prejudice. For the following reasons, we reverse

and remand.

FACTS AND PROCEDURAL HISTORY

This case was previously before this court on an appeal from a summary

judgment as White v. Louisiana Department of Transportation & Development,

17-629, pp. 2-3 (La.App. 3 Cir. 12/6/17), 258 So.3d 11, 13, wherein this court

summarized the facts and procedural history to that point, as follows:

On August 24, 2014, [Plaintiff, Gerald] White was driving in the
eastbound lane of Highway 496 in Alexandria, Louisiana during a
violent thunderstorm. As Mr. White passed the [home of Garold and
Mickey Mangun], a pecan tree located in the right-of-way across the
street and maintained by DOTD, fell on Mr. White’s truck, pinning him
inside the truck. Mr. White had to be extracted from the truck, and he
sustained injuries.

Mr. White brought suit for general and special damages,
including physical pain and suffering, mental anguish and distress,
permanent injuries, medical expenses, lost wages, and any other
damages incurred from the accident. Mr. White’s wife, Charlotte
White, brought a claim for loss of consortium. Mr. and Mrs. White
(hereafter “the Whites”) filed suit against the City of Alexandria
(hereafter “the City”), DOTD, the Manguns and their insurers, Church
Mutual and Safeco, alleging negligence for failure to maintain, inspect,
and remove the damaged pecan tree.

The City filed an answer to the petition, pleading the affirmative
defense of comparative fault. The Manguns answered that they had no
actual or constructive notice of the defective tree because they “rarely,
if ever” went onto the property where the tree was located.
Furthermore, the defect on the tree was only visible from the side facing
opposite of the roadway and away from the Manguns’ home.

The City filed a motion for summary judgment asserting that
DOTD is responsible for maintaining the right-of-ways on State
highways and that the City had no notice of the defective pecan tree.
The trial court granted the City’s motion for summary judgment.

The Manguns and Church Mutual filed a motion for summary
judgment. Thereafter, Safeco also filed a motion for summary
judgment. The Manguns asserted that they had no knowledge of the
tree’s defect because they neither maintained the tree nor did they mow
the right-of-way. During his deposition, DOTD’s expert arborist,
Mr. Malcolm Guidry, described the tree’s canopy as healthy. The
Whites’ expert arborist, Mr. Robert Thibodeaux, testified that he saw
signs of the tree’s failure through bark twists and discoloration, as well
as a co-dominant trunk visible on pre-accident photographs of the tree.
However, Mr. Thibodeaux noted that these signs were not signs that he
would expect a layperson to recognize as signs of the tree’s failure.
DOTD opposed the summary judgment, arguing that the Manguns did
not exercise reasonable care through their failure to maintain, inspect,
and remedy the defective tree. The trial court granted summary
judgment in favor of the Manguns, Church Mutual, and Safeco. The
Whites did not appeal the summary judgment. DOTD [appealed],
contending that there [was] a genuine issue of material fact as to
whether the Manguns had notice of the defective tree.

This court dismissed DOTD’s appeal, finding the trial court’s summary

judgment became final when the adverse judgment was not appealed by Plaintiffs.1

DOTD filed a motion for summary judgment on May 16, 2018, from which

stems the issue presently before this court. In the motion, DOTD asserted there is

no genuine issue of material fact, that Plaintiffs will be unable to meet their burden

of proof at trial of this matter, and DOTD is entitled to judgment as a matter of law.

DOTD argued it cannot be held liable because it did not have actual or constructive

notice of the defective pecan tree. In support of its motion, DOTD submitted: (1)

the affidavit of its expert arborist, Malcolm Guidry, stating the open rot cavity in the

tree that fell on Mr. White’s vehicle was a hidden defect not visible from the

highway; (2) the affidavit of Kerry Lemoine, a DOTD Maintenance Supervisor for

Rapides Parish, denying he observed any problems with the tree while performing

bi-weekly inspections along Louisiana Highway 496; and (3) excerpts from the

deposition of Plaintiffs’ expert arborist, Robert Thibodeaux. DOTD characterized

1
In addition, this court ruled DOTD shall not reference the Manguns in any allocation of
fault at trial, in conformity with La.Code Civ.P. art. 966(G).
2

Mr. Thibodeaux’s testimony as being that the healthy side of the tree faced the road

and, even if the tree showed signs of defect facing the road, it would not be

something you would expect a lay person to recognize. DOTD also cited case law

for the proposition that it owed no duty to motorists traveling on state highways to

check all sides of trees and check for damage. See Caskey v. Merrick Const. Co.,

Inc., 41,662 (La.App. 2 Cir. 1/24/07), 949 So.2d 560, writ denied, 07-576

(La. 5/4/07), 956 So.2d 619. DOTD supplemented and amended its motion,

asserting an additional affidavit of Donald J. Gauthier, Second Assistant Fire Chief

(Retired) of the Alexandria Fire Department, declaring on the day of the accident the

tree appeared to be a live tree with thick green foliage.

In opposition to DOTD’s motion, Plaintiffs submitted: (1) the affidavit of

Mr. White, stating he was driving less than the speed limit and within his normal

lane of travel when the tree fell; (2) excerpts from the deposition of its expert

arborist, Robert Thibodeaux; and (3) the curriculum vitae of and photographs taken

or used by Mr. Thibodeaux in forming his opinions relating to the defective tree.

Plaintiffs characterize Mr. Thibodeaux’s testimony as being the tree exhibited signs

of disease visible to the road which DOTD should have seen as early as June 2013,

and DOTD should have removed the tree before it fell, injuring Mr. White.

The matter proceeded to hearing on June 18, 2018. Following argument, the

trial court ruled as follows:

Based on the argument today, DOTD’s duty is to do a windshield
inspection, and the facts indicate that a windshield inspection were [sic]
done biweekly by DOTD. The Plaintiff[s’] expert testimony is that the
tree on the side that would face traveling, the traffic, was basically the
healthy side of the tree. Apparently the defect, if there was any, was on
the opposite side which would not be in the sight-line of DOTD.

So the Motion for Summary Judgment is granted.

3

Plaintiffs appeal, contending the trial court erred when it granted DOTD’s

motion for summary judgment. Plaintiffs urge there is a genuine issue of material

fact relating to whether DOTD knew or should have known of the defective tree

before it fell, injuring Mr. White, and, thus, summary judgment was improper. We

agree.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate, i.e., whether there is any genuine issue of material fact and whether the

movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726

(La. 2/26/08), 977 So.2d 880. On a motion for summary judgment, the mover bears

the burden of proof; however, if the mover will not bear the burden of proof at trial

on the issue before the court on the motion for summary judgment, the mover’s

burden on the motion does not require that all essential elements of the adverse

party’s claim, action, or defense, be negated. Instead, the mover must point out to

the court the absence of factual support for one or more elements essential to the

adverse party’s claim, action, or defense. Thereafter, the adverse party must produce

factual evidence 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).

In order to reverse the trial court’s decision, this court would have to find on

de novo review that the record reveals a genuine issue of material fact which

precludes summary judgment as a matter of law. A fact, for summary judgment

purposes, “is material if it potentially insures or precludes recovery, affects a

litigant’s ultimate success, or determines the outcome of the legal dispute.” Hines

v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). An issue,

4

for summary judgment purposes, is genuine if “reasonable persons could disagree;

if reasonable persons could reach only one conclusion, there is no need for trial on

that issue and summary judgment is appropriate.” Id. at 765-66.

To recover damages from DOTD, Plaintiffs must prove: (1) the tree was in

the care, custody, and control of DOTD; (2) the tree was defective in that it posed

an unreasonable risk of harm; (3) DOTD had actual or constructive notice of the

defect and failed to remedy the defect within a reasonable time; and (4) causation.

Sudduth v. State, Dep’t Trans. & Dev., 619 So.2d 618 (La.App. 3 Cir.), writ denied,

629 So.2d 349 (La.1993).

In the present case, DOTD does not dispute the tree was in its custody. It does

dispute it had actual or constructive notice the tree was defective.

“Constructive notice” is defined as “the existence of facts which infer actual

knowledge.” La.R.S. 9:2800(D). Constructive notice may be shown by facts

demonstrating that the defective condition existed for such a period of time that it

would have been discovered and remedied had the public body exercised reasonable

care. Laird v. City of Oakdale, 04-767 (La.App. 3 Cir. 11/10/04), 886 So.2d 1262.

Our review of the record in this matter reveals Mr. Thibodeaux testified in his

deposition that the tree, as shown by Google Earth Street View photographs taken

of the right-of-way, dated June 2013, shows deterioration by way of dead limbs,

discolored and twisted bark, and other obvious signs. According to Mr. Thibodeaux,

that deterioration would have been exacerbated in the thirteen months between the

time of the Google Earth photos, June 2013, and the time of the accident, August

2014. It is his expert opinion that a DOTD inspector should have seen the signs of

deterioration and DOTD should have removed the defective tree prior to

Mr. White’s accident.

5

The trial court’s oral reasons indicate it accepted DOTD’s characterization of

Mr. Thibodeaux’s testimony—the healthy side of the tree faced the road—over that

of Plaintiffs—the tree exhibited signs of disease visible to the road. However, “the

judge’s role is not to evaluate the weight of the evidence or to determine the truth of

the matter, but instead to determine whether there is a genuine issue of triable fact.

All doubts should be resolved in the non-moving party’s favor.” Hines, 876 So.2d

at 765.

The expert arborists, Mr. Guidry for DOTD and Mr. Thibodeaux for Plaintiffs,

disagree regarding whether DOTD knew or should have known the tree was

defective, the resolution of which requires the fact-finder to weigh evidence. As

there is clearly conflicting expert evidence, a genuine issue of material fact exists in

this case as to the issue of notice, and summary judgment was inappropriate. This

must go to the trier of fact and must not be disposed of via summary judgment.

DISPOSITION

The judgment of the trial court is reversed, and the matter is remanded for

further proceedings. Costs of this appeal are assessed to Defendant, State of

Louisiana, Through the Department of Transportation and Development, in

accordance with La.R.S. 13:5112(A), said appellate costs amounting to $1,889.50.

REVERSED AND REMANDED.

6