Cassie Angelle v. Lafayette Consolidated Government

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-791 consolidated with 21-756

CASSIE ANGELLE

VERSUS

LAFAYETTE CONSOLIDATED GOVERNMENT, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20196687
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

AFFIRMED.

Katherine A Theunissen
MAHTOOK & LAFLEUR, L.L.C.
P. O. Box 3089
Lafayette, LA 70502
(337) 266-2189
COUNSEL FOR DEFENDANT/APPELLANT:
Lafayette City-Parish Consolidated Government
Brandon Dugas

Donovan J. O’Pry, II
O’PRY LAW FIRM
2014 W. Pinhook Road, Suite 507
Lafayette, LA 70508
(337) 415-0007
COUNSEL FOR PLAINTIFF/APPELLEE:
Cassie Angelle

Leah M. Penny
CASLER, BORDELON, LAWLER & GELDER
4000 South Sherwood Forest Boulevard, Suite 303
Baton Rouge, LA 70816
(337) 230-5592
COUNSEL FOR PLAINTIFF/APPELLEE:
Cassie Angelle
Progressive Paloverde Insurance Company

WILSON, Judge.

In this consolidated writ/appeal, Defendants/Plaintiffs-in-reconvention,

Officer Brandon Dugas and his employer Lafayette Consolidated Government

(LCG), seek review of the judgments of the trial court finding Defendants solely at

fault for the collision with Plaintiff/Defendant-in-reconvention, Cassie Angelle, and

granting the motions for summary judgment and partial summary judgment. For the

following reasons, we affirm the judgments of the trial court.

I.

ISSUES

In this consolidated writ/appeal, we must decide whether the trial court

erred in granting Plaintiffs/Defendants-in-reconvention’s motions for summary

judgment and partial summary judgment and finding Defendants solely at fault for

the collision.

II.

FACTS AND PROCEDURAL HISTORY

On September 29, 2019, during the dark hours of the morning, Plaintiff,

Cassie Angelle, was travelling on Interstate 49 in Lafayette Parish on her way to

pick up a friend. She was driving a 2014 Ford Taurus. While travelling in the right

lane, Ms. Angelle saw emergency flashing lights that appeared to be on the side of

the road. The emergency vehicles were located to the right of the interstate on the

service road. In response to the lights, Ms. Angelle slowed down, activated her turn

signal, and merged into the left lane.

Officer Dugas was travelling in the left lane behind Ms. Angelle in a

City of Lafayette 2019 Dodge Charger police unit. Officer Dugas had just completed

several shifts and admits that he was travelling ten to fifteen miles per hour over the

seventy mile per hour posted limit. Also focused on the emergency lights ahead,

Officer Dugas claims he did not notice Ms. Angelle’s taillights ahead of him.

Seconds after she merged into the left lane, Officer Dugas collided into the back of

Ms. Angelle’s vehicle. Approximately five seconds before the collision, Ms.

Angelle’s speed was forty-four miles per hour but had increased to forty-eight miles

per hour at the time of collision. Officer Dugas’ speed had decreased from eighty-

seven miles per hour to seventy-three at the time of the collision. The entire incident

was recorded by the dashcam in Officer Dugas’ vehicle.

Ms. Angelle filed suit against LCG and Officer Dugas on October 22,

2019, alleging actual damages caused by Officer Dugas’ negligence. On December

18, 2019, LCG filed a reconventional demand against Ms. Angelle and her

automobile insurer, Progressive Paloverde Insurance Company (Progressive),

alleging that Ms. Angelle’s negligence caused and/or contributed to the accident.

The reconventional demand was subsequently supplemented on two occasions to

clarify property damages and medical expenses incurred. On July 6, 2021, Ms.

Angelle and Progressive, as defendants-in-reconvention, filed a motion for summary

judgment alleging that LCG would be unable to carry its burden of proof as to the

liability of defendants-in-reconvention and all claims against them should be

dismissed. On August 20, 2021, Ms. Angelle filed a motion for partial summary

judgment on the issue of fault asking the court to find Officer Dugas and LCG solely

at fault for the accident.

The separate motions were heard on October 11, 2021, and each was

granted by the trial court. Officer Dugas and LCG filed an application for

supervisory writ review of the grant of partial summary judgment with this court in

21-756. They also filed the instant appeal seeking reversal of the trial court’s grant

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of the motion for summary judgment finding Defendants solely at fault and

dismissing the claims against Ms. Angelle and Progressive. In the interest of judicial

economy and efficiency, we have consolidated the writ application and appeal.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, applying the

same criteria that govern the trial court’s determination of whether summary

judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591

So.2d 342 (La.1991). A motion for summary judgment shall only be granted when

the motion, memorandum, and supporting documents show there are no genuine

issues of material fact, and the mover is entitled to judgement as a matter of law.

La.Code Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover’s burden on the motion does not
require him to negate all essential elements of the adverse
party’s claim, action, or defense, but rather to 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. The burden is on the adverse party to produce
factual support 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).

IV.

LAW AND DISCUSSION

In both the appeal and the consolidated writ, LCG and Officer Dugas

challenge the trial court’s finding that they were solely at fault for the collision. They

contend that genuine issues of material fact exist with regard to liability and the

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allocation of fault. In particular, they note that there is a genuine issue as to whether

Ms. Angelle’s speed and decision to change lanes contributed to the accident. After

reviewing the record, we find that there are no genuine issues of material fact, and

the actions of Officer Dugas were the sole cause of the collision.

Motions for summary judgment are properly granted when it is shown

that there are no genuine issues of material fact. La.Code Civ.P. art. 966(A)(3). The

courts have explained that “a ‘genuine issue’ is a ‘triable issue,’ an issue in which

reasonable persons could disagree.” Champagne v. Ward, 03-3211, p. 5 (La.

1/19/05), 893 So.2d 773, 777. “A fact is ‘material’ when its existence or

nonexistence may be essential to plaintiff’s cause of action under the applicable

theory of recovery.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.

7/5/94), 639 So.2d 730, 751.

Under this state’s duty/risk analysis, in an action for negligence the

plaintiff must prove the following elements:

(1) the defendant had a duty to conform his or her conduct
to a specific standard of care (the duty element); (2) the
defendant failed to conform his or her conduct to the
appropriate standard (the breach of duty element); (3) the
defendant’s substandard conduct was a cause-in-fact of the
plaintiff’s injuries (the cause-in-fact element); (4) 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) actual damages (the damages
element).

Rando v. Anco Insulations Inc., 08-1163, pp. 26-27 (La. 5/22/09), 16 So.3d 1065,

1086. Considering those elements, the evidence shows that Officer Dugas was

undoubtedly at fault for this accident.

Our legislature has enacted laws that impose specific duties on drivers

of following vehicles. Louisiana Revised Statutes 32:81(A) requires that “[t]he

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driver of a motor vehicle shall not follow another vehicle more closely than is

reasonable and prudent, having due regard for the speed of such vehicle and the

traffic upon and the condition of the highway.” When a rear-end collision occurs, a

following motorist is presumed to have breached this statutory duty and is presumed

at fault. Leblanc v. Bouzon, 14-1041 (La.App. 3 Cir. 3/4/15), 159 So.3d 1144. In

the instant case, Officer Dugas was the following motorist in this rear-end collision,

thus, he is presumed to be at fault. Officer Dugas could, however, rebut the

presumption by demonstrating that he “had his car under control, closely observed

the preceding vehicle, and followed at a safe distance under the circumstances, or by

proving that the driver of the lead car negligently created a hazard which the

following motorist could not reasonably avoid.” Garcia v. Stalsby, 11-350, pp. 5-6

(La.App. 3 Cir. 12/14/11), 78 So.3d 873, 877, writ denied, 12-0422 (La. 4/9/12), 85

So.3d 703.

In his deposition, Officer Dugas admitted that prior to the collision, he

was focused on emergency lights near the side of the road and was not focused on

Ms. Angelle’s vehicle ahead. He also admitted that just prior to the collision he was

driving ten to fifteen miles per hour over the posted seventy miles per hour limit.

Expert testimony revealed that he was driving eighty-seven miles per hour just five

seconds before the collision, and while he was able to decrease his speed to seventy-

three prior to impact, he did not apply his brakes until less than a second before the

collision. It is evident that Officer Dugas failed to notice Ms. Angelle’s vehicle

ahead of him until it was too late. This fact is clearly ascertained from the dashcam

video footage of the accident. Despite Ms. Angelle’s taillights being fully visible

ahead of Officer Dugas, he did not properly respond to her reducing her speed,

signaling, and then merging into the left lane in front of him. Hence, the evidence

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shows that he did not closely observe the proceeding vehicle or follow at a safe

distance under the circumstances.

Additionally, the record fails to show that Ms. Angelle negligently

created a hazard that Officer Dugas could not reasonably avoid. Ms. Angelle

properly signaled her intention to merge into the left lane, and as shown on the

footage, Officer Dugas should have noticed her movements ahead of him. There

was ample time for Officer Dugas to reduce his speed in response to Ms. Angelle’s

actions and avoid the accident. Thus, Officer Dugas failed to rebut the presumption,

and he is presumed at fault for the accident.

Officer Dugas and LCG assert that although following motorists are

presumed at fault in rear-end collisions, the leading motorists’ negligence must also

be considered and allocated fault as necessary. The defendants are correct that

“notwithstanding the presumption of negligence, a favored motorist can still be

assessed with comparative fault if his or her substandard conduct contributed to the

cause of the accident.” Leblanc, 159 So.3d at 1147. Louisiana is a comparative fault

state and La.Civ.Code Art. 2323(A) mandates that “[i]n any action for damages

where a person suffers injury, death, or loss, the degree or percentage of fault of all

persons causing or contributing to the injury, death, or loss shall be determined[.]”

We will now examine the actions of Ms. Angelle to determine whether they

amounted to negligence which could have contributed to the collision.

Officer Dugas and LCG first suggest that Ms. Angelle was negligent by

driving too slowly. In addition to prohibiting driving “at a speed greater than is

reasonable and prudent under the conditions . . . and in no event in excess of the

maximum speeds established[,]” La.R.S. 32:64, entitled “General Speed Law”,

provides that “[e]xcept when a special hazard exists that requires lower speed for

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compliance with paragraph A of this section, no person shall operate or drive a motor

vehicle upon the highways of this state at such a slow speed as to impede the normal

and reasonable movement of traffic.” The evidence reveals that Ms. Angelle was

travelling forty-four miles per hour as she emerged from the right lane and had

accelerated to forty-eight miles per hour just before impact in the left lane. The

posted speed was seventy miles per hour, so she was travelling significantly below

the speed limit.

Ms. Angelle asserts that she slowed down in response to the emergency

lights ahead as she had been taught to do in driver’s education class. Louisiana

Revised Statutes 32:125(B)(1) provides:

B. When any vehicle making use of any visual
signals as authorized by law, including the display of
alternately flashing green, amber, or yellow warning
lights, is parked on or near the highway, the driver of every
other vehicle shall:

(1) When driving on an interstate highway or other
highway with two or more lanes traveling in the same
direction, yield the right-of-way by making a lane change
into a lane not adjacent to the parked vehicle, if possible
with due regard to safety and traffic conditions. If a lane
change is not possible, the driver shall slow to a reasonably
safe speed.
Although the emergency lights were coming from the service road and not the actual

interstate, both drivers stated that they saw the lights and believed them to be coming

from the right side of the road ahead of them. Ms. Angelle was reasonable in

believing that a special hazard existed which required her to reduce her speed of

travel. She behaved as any prudent driver would when faced with such a hazard by

slowing her speed, initiating her blinker, and successfully merging into the left lane.

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Additionally, Officer Dugas and LCG fail to show how Ms. Angelle’s

lower speed was so slow as to impede the normal and reasonable movement of

traffic. Unlike in the cases cited for support by the defendants, Ms. Angelle’s speed

was not so slow as to create a hazard to following motorists. It is clear from the

dashcam footage that Ms. Angelle’s lower speed was ascertainable to Officer Dugas

with sufficient time for him slow down accordingly and avoid an accident. Her

vehicle was not barely moving, nor did she appear out of nowhere. Had Officer

Dugas kept a proper lookout he could have easily adjusted to Ms. Angelle ahead of

him and would not have been forced to slam on his brakes. Thus, we find that Ms.

Angelle’s reduced speed did not constitute negligence and was not a cause of the

accident.

Officer Dugas and LCG also point to Ms. Angelle’s decision to switch

lanes as a cause of the accident. Louisiana Revised Statutes 32:79 provides:

Whenever any roadway has been divided into two or more
clearly marked lanes for traffic, the following rules, in
addition to all others consistent herewith, shall apply.

(1) A vehicle shall be driven as nearly as practicable
entirely within a single lane and shall not be moved from
such lane until the driver has first ascertained that such
movement can be made with safety.

Defendants assert that Ms. Angelle failed in her duty to ascertain whether it was safe

to proceed with her merge to the left lane.

Ms. Angelle testified that she checked her mirrors, applied her blinker,

and checked her mirrors again before merging to the left lane. This testimony was

uncontroverted. The dashcam footage reveals that she did execute a proper lane

change. Ms. Angelle was well ahead of Officer Dugas before she attempted to

change lanes. She indicated her intention to merge to following traffic, slowly and

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carefully merged into the left lane, and was fully within the lane before the accident

occurred. Had he been paying proper attention, Officer Dugas would have noticed

the merging vehicle in front of him with ample time to adjust his speed accordingly.

Instead, he was “zoned out” and only applied his brakes a second before impact.

Unlike in the cases cited by Defendants for support, Ms. Angelle’s merge was not

abrupt, nor was she still in the process of merging when the accident occurred. Based

on the evidence submitted, we cannot find any conduct on the part of Ms. Angelle

which was negligent and contributed to the accident.

After reviewing the evidence, we find there are no genuine issues as to

fault, and Officer Dugas and LCG are solely at fault for the subject accident. This

finding is clearly supported by the dashcam video footage in combination with

deposition testimony of the parties. No evidence exists which reveals Ms. Angelle’s

driving was unreasonable under the circumstances, thus Defendants failed to prove

any fault on the part of Ms. Angelle. In contrast, Officer Dugas is presumed at fault

as the following motorist, and had he maintained a proper lookout, he would have

avoided the accident. Accordingly, we affirm the trial court’s ruling granting the

motion for summary judgment and dismissing the claims against Ms. Angelle and

Progressive as defendants-in-reconvention. We also affirm the trial court’s ruling

granting the motion for partial summary judgment as to fault.

V.

CONCLUSION

For the foregoing reasons, the judgements of the trial court finding

Officer Dugas and LCG solely at fault and granting the Plaintiffs/Defendants-in-

reconventions’ motions for summary judgment and partial summary judgment are

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affirmed. Costs of this appeal are assessed to Defendants/Plaintiffs-in-reconvention,

Officer Brandon Dugas and Lafayette Consolidated Government in the amount of

$2,771.19.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Courts of Appeal.

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