Daniel Norman v. Michael A. Shelton Enterprise, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-1007 consolidated with 18-1000

DANIEL NORMAN

VERSUS

MICHAEL A. SHELTON ENTERPRISE, INC., ET AL.

**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 255,532
HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and John E. Conery, Judges.

CONERY, J., concurs in part, dissents in part, and assigns reasons.

AFFIRMED IN PART, REVERSED
AND REMANDED IN PART.

Christopher Jude Roy, Jr.
Chris J. Roy, Jr., A Law Corporation
P. O. Box 7356
Alexandria, LA 71306-0356
Telephone: (318) 487-9537
COUNSEL FOR:
Plaintiff/Appellant - Daniel Norman

Lisa Ann McLachlan
Musgrave, McLachlan & Penn, LLC
1515 Poydras Street – Suite 2380
New Orleans, LA 70112
Telephone: (504) 799-4300
COUNSEL FOR:
Defendants/Appellees - Simms Transportation, Inc. and Michael A.
Shelton Enterprise, Inc.

Joshua Joy Dara, Sr.
1521 Masters Drive
Pineville, LA 71360
Telephone: (318) 442-1975
COUNSEL FOR:
Defendants/Appellees - Simms Transportation, Inc. and Michael A.
Shelton Enterprise, Inc.

Thomas Taylor Townsend
P. O. Box 784
Natchitoches, LA 71458-0784
Telephone: (318) 238-3612
COUNSEL FOR;
Plaintiff/Appellant - Daniel Norman

Jeff Landry
Attorney General
Blake E. Ryland
Assistant Attorney General
Leisa B. Lawson
Assistant Attorney General
Louisiana Department of Justice
900 Murray Street – Suite B-100B
Alexandria, LA 71301
Telephone: (318) 487-5944
COUNSEL FOR:
Defendant/Appellee - State of Louisiana, Department of Transportation
and Development

THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Daniel Norman v.

Michael Shelton Enterprise, Inc., et al., 18-1000 (La.App. 3 Cir. __/__/__), __

So.3d __, the judgment of the trial court is affirmed in part, reversed in part, and

remanded. Costs of the appeal are assessed to Michael Shelton Enterprise, Inc. and

Simms Transportation, Inc.

AFFIRMED IN PART, REVERSED IN PART AND

REMANDED.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-1000 consolidated with 18-1007

DANIEL NORMAN

VERSUS

MICHAEL A. SHELTON ENTERPRISE, INC., ET AL.

Conery, J., concurring in part, dissenting in part.

I agree with the majority that the summary judgment granted in favor of

Michael Shelton Enterprise, Inc. must be reversed.

I respectfully dissent, however, from the affirmation of the summary

judgment entered in favor of DOTD. Rather, I find that the presence of genuine

issues of material fact requires reversal of that ruling as well.

By its motion for summary judgment, DOTD asserts that no genuine issues of

material fact exist as to its actual or constructive notice of a defective condition

creating an unreasonable risk of harm as required by La.R.S. 9:2800. It is that notice

“which gives rise to the obligation to take adequate measures necessary to prevent

injury.” Johnson v. State, Dep’t of Transp. & Dev., 17-0973, p. 7 (La.App. 1 Cir.

4/3/19), _ So.3d _, _ (citing Rhodes v. State, Dep’t of Transp. & Dev., 95-1848 (La.

5/21/96), 674 So.2d 239). In the event DOTD has such notice, it is required to “take

reasonable measures to eliminate or reduce the risks associated with the dangerous

condition or may warn the public of the danger, risk, or hazard involved.” Id. at _

(citing Tassin v. Bendel, 07-1119 (La.App. 4 Cir. 7/9/08), 989 So.2d 217, writ

denied, 08-1940 (La. 11/10/08), 996 So.2d 1069, cert. denied, 556 U.S. 1222, 129

S.Ct. 2161 (2009)).

Louisiana Revised Statutes 32:296 states in pertinent part:

A. No person shall stop, park, or leave standing any
unattended vehicle on any state highway shoulder, unless such
stopping, parking, or standing is made necessary by an emergency[.]

....

B. In case of an emergency, the driver of a vehicle may lawfully
operate the vehicle on any state highway shoulder in accordance with
the normal standards of prudent conduct to protect himself and others
from harm. When the emergency ends, the vehicle shall not be operated
on the state highway shoulder.

Discussing La.R.S. 32:296 within the context of an accident involving a

Parish truck parked partially on a highway shoulder, the supreme court explained

that “[t]he primary safety purpose of the paved shoulder of the highway is to provide

an area for motorists who require a momentary stop, and to protect a motorist who

inadvertently leaves the roadway.” Shephard v. Scheeler, 96-1690, p. 21 (La.

10/21/97), 701 So.2d 1308, 1319. The court further noted that “[t]he occasional and

transitory use of the shoulder by stopped vehicles is not incongruous with its

function as a safety device. Nevertheless, when the use of the shoulder is regular

and routine, the safety function is mitigated.” Id. Reviewing the facts of the accident

at issue, the supreme court pointedly explained that “the continuous use of a fixed

area of the shoulder as a parking lot or regular embarkation point for Parish workers

unreasonably impairs its safety function as a recovery area.” Id. Continuing, the

supreme court stated:

In the case sub judice, the probability of the harm and gravity of
the harm caused by the Parish’s parking [its] truck on the shoulder
greatly outweighed the cost of avoiding the risk by parking elsewhere.
The use of the shoulder in a consistent and continuous manner rather
than a transitory manner, accompanied by the failure to utilize an
available safe area to park the truck constituted an unreasonable risk of
harm to motorists. We therefore hold that the Parish breached its duty
to use the shoulder in a reasonably safe manner, and that this breach
was a legal cause of the accident. The harm that occurred in the instant

2

case was the very risk of harm contemplated by the duty to use the
paved shoulder in a reasonable manner, namely that a vehicle that
leaves the traveled portion of the highway would collide with a vehicle
stopped in the recovery area.

Id.

In this case, the fact that the DOTD shoulder was used as a parking lot by

Robbie G’s on a nightly basis creates an issue as to the duty and breach of duty on

the part of DOTD. “[A] motion for summary judgment is inappropriate to dismiss

a negligence action when questions of fact exist regarding the duties owed or breach

of the same.” Simmons v. Sabine River Auth. Of La., 11-1146, p. 11 (La.App. 3 Cir.

8/15/12), 97 So.3d 1177, 1183, writ denied, 12-2043 (La. 11/16/12), 102 So.3d 40.

Moreover, as the Louisiana Supreme Court recently reiterated in Broussard v.

State, ex rel. Office of State Bldgs., 12-1238, p. 22 (La. 4/5/13), 113 So.3d 175, 191

“we emphasize again that each case involving an unreasonable risk of harm analysis

must be judged under its own unique set of facts and circumstances.”

Arguably, the continuous use of DOTD’s highway right-of-way by Robbie

G’s during peak traffic hours on a heavily traveled roadway in effect created a trap

not only for those attempting to enter the highway, but for those travelling on the

roadway itself. The pictures introduced in evidence clearly demonstrate the vision

limitations caused by the cars parked on DOTD’s right-of-way. See Shephard, 701

So.2d 1308.

Given the facts and circumstances of this case, I find that genuine issues of

material fact exist. Evidence introduced in connection with the motion for summary

judgment at issue indicates that it was a well-known and longstanding community

practice for Robbie G’s patrons to park inside of the DOTD right-of-way. Mr.

Dubois, for instance, described the parking at Robbie G’s as “horrible” and that

3

“everybody just parks where you can.” He described the situation as “something

that you can drive by and see every day.” When one witness to the accident, Mr.

Jeansonne, was asked during his deposition whether his view of oncoming traffic

had been hindered when leaving the restaurant, he explained that: “[I]t’s always

busy. I mean, I – you know, it is – when it is busy, it is hard to get out, and it’s hard

to get out that road, you know, on the side. I mean it is, you know.” When

subsequently asked whether “there is an obstruction to your vision when you’re

trying to look at the traffic,” Mr. Jeansonne confirmed that “It’s – it is.”

Although a single car parked in a right-of-way for a short period time may not

typically constitute a hazardous condition, the condition presented here, however,

may be so pervasive that constructive notice could be inferred by a trier of fact

making factual and credibility determinations. To the extent factual inferences are

available from the evidence, including the photos, they must be construed in favor

of the party opposing the motion. See Willis v. Medders, 00-2507 (La. 12/8/00), 775

So.2d 1049. Accordingly, I would reverse the summary judgment granted in favor

of DOTD and remand the entirety of this matter for further proceedings.

For these reasons, I concur in part and dissent in part.

4