Devin Luttrell v. McNeese State University

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-582

DEVIN LUTTRELL

VERSUS

McNEESE STATE UNIVERSITY, ET AL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2022-2579
HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of Shannon J. Gremillion, Candyce G. Perret, and Gary J. Ortego,
Judges.

AFFIRMED.

Jeannie C. Prudhomme
Ashley C. Escalona
Assistant Attorney General
556 Jefferson St., 4th Floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, through the Board of Supervisors of the University
of Louisiana System

Damon L. Beard
The Townsley Law Firm
3102 Enterprise Boulevard
Lake Charles, LA 70601
(337) 478-1400
COUNSEL FOR PLAINTIFF/APPELLEE:
Devin Luttrell

Christopher Shannon Hardy
Penny & Hardy
600 Jefferson Street, Ste 601
Lafayette, LA 70502
(337) 231-1955
COUNSEL FOR DEFENDANTS/APPELLEES:
Progressive Security Insurance Co.
Jalen Robinson

ORTEGO, Judge.

This is a summary judgment case relative to a motor vehicle accident wherein,

in the early morning hours of July 5, 2021, a motor vehicle struck a black cow on

the roadway in Calcasieu Parish. The plaintiff, a guest passenger in the motor

vehicle, filed a petition for damages against the driver of the vehicle, Jalen Robinson

(Robinson), his insurer, Progressive Security Insurance Company (Progressive),

McNeese State University (McNeese), the State of Louisiana, through the Board of

Supervisors of the University of Louisiana System (the Board), and Stream Family

Limited Partnership. Relevant to this appeal, the driver and his liability insurance

company sought and were granted summary judgment dismissing them from the

case based on the trial court’s finding the driver free from fault in the accident.

The State, through its university system, appeals, alleging genuine issues of

material fact exist regarding the driver’s fault and/or comparative negligence.

FACTS AND PROCEDURAL HISTORY:

On July 5, 2021, at approximately 3:00 AM, on a dark roadway, Devin Luttrell

(Luttrell) was riding as Robinson guest passenger. They were travelling on East

McNeese Street in Lake Charles, Louisiana, on their way to work. Due to recent

hurricane damage, no streetlights were working. As they proceeded on East

McNeese Street, a two lane black-top roadway, they collided with a black cow that

was in the middle of their lane of travel.

Robinson testified that he was looking straight ahead, driving within the speed

limit, and his headlights were illuminated. Further, he testified that he did not see

the cow until just before the impact.

Luttrell filed suit against Robinson, his insurer, Progressive Security

Insurance Company (Progressive), McNeese State University (McNeese), the State

of Louisiana, through the Board of Supervisors of the University of Louisiana

System (the Board), and Stream Family Limited Partnership.

Robinson and Progressive filed a motion for summary judgment, which the

trial court granted, dismissing them from the case based on the trial court’s finding

Robinson free from fault in the accident.

The Board appeals and raises a single assignment of error.

STANDARD OF REVIEW:

Summary judgments are reviewed de novo using the same criteria as that of

the trial court in adjudicating the appropriateness of the summary judgment. Samaha

v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. Summary judgments are granted “if

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, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P.art.

966(B).

The burden of proof remains with the movant. However, if the movant
will not bear the burden of proof at trial on the matter that is before the
court on the motion for summary judgment, the movant’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 that there is an absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense.
Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P.art. 966 C(2).

DISCUSSION OF THE MERITS:

The Board asserts that the trial court erroneously granted Progressive’s

motion for summary judgment. It alleges that genuine issues of material fact exist

regarding Robinson’s comparative fault.

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Progressive’s Initial Burden of Proof

Pursuant to La.Code Civ.P. art. 966, Progressive, as movant, has the initial

burden of proof. However, Progressive, as defendant Robinson’s insurer, does not

have the burden to prove at trial that Robinson was comparatively negligent. That

burden is on Luttrell. Therefore, Progressive merely has to point out that there is no

factual support that Robinson had any fault as to this accident.

In support of its summary judgment motion, Progressive provided the sworn

deposition testimony of both Robinson and Lutrell, the only two eyewitnesses, to

show that Robinson was free from fault in causing this motor vehicle accident. The

following is an excerpt of Lutrell’s testimony:

Q. You are going down East McNeese Street, or McNeese Street,
car flashes it lights, y’all both have a very short comment about,
oh, it must be a cop up here. So you go back to your phone, and
then [Robinson] screams, you look up [and] see a blob, a black
blob - -

A. Uh-huh.

Q. - a dark blob in the road and y’all hit it?

A. Yes, much.

Q. Is that a fair description of it?

A. Oh, yea. Spot on, I think.

Q. Before the impact with the cow, did you feel any sensation of the
vehicle slowing down, speeding up, or moving left and right?

A. No.

Q. Can you give me an idea, Mr. Lutrell, how, the time between
when Mr. Robinson screamed versus when there was actual
impact? A split second?

A. Split second. He screamed, and then boom.

....

Q. All right. After the accident, did you ask Mr. Robinson when did
you see the cow, why didn’t you stop, why didn’t you swerve?
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A. Yes, I did ask him.

Q. What did he tell you?

A. He said he didn’t see it.

Q. All right. From your observation of when he screamed to when
y’all hit the cow, do you think he would have had time in that
time frame to avoid the accident?

A. Between the scream and the cow?

Q. Right.

A. No, there is no way.

....

Q. Do you have any criticism of the way Mr. Robinson was driving
that night?

A. No, I don’t. I feel like there was nothing he could have done.

Q. You feel like he was paying attention to the road ahead of him?

A. Yes, sir.

Q. You feel like he was driving the speed limit?

A. Yes, sir.

Q. He was maintaining proper control of the vehicle?

A. Yes, sir.

....

Q. So then from your perspective, y’all hit the first cow that y’all
came up on?

A. Yes, sir.

Progressive also presented the sworn deposition testimony of Robinson.

Therein, Robinson testified to the following:

Q. Okay. And how fast were you going at the time of the incident
or right before the incident happened?

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A. It would have been maybe 45, 50, somewhere around there. The
speed limit is really low on that street, so I know not to speed
there.

....

Q. Were you in a hurry that morning?

A. No, we were on time. We weren’t running late or anything.
There was no reason to be in a rush.

Q. And the issue with the cow, where was the cow located when it
was struck? Was it in your lane of travel?

A. Yes. It wasn’t just one specific cow. There was a herd of them
all around the street. But the one I hit, specifically, was in my
lane of travel.

Q. Did you see any other cows before you struck the cow in the
road?

A. No. No indication of any other cows, just driving one second,
the next second, boom, there is a cow.

....

Q. Before you made contact with the cow, do you know if that cow
was moving or staying still.

A. I don’t know.

Q. You said it was instantaneous. Is that what you said, the impact?

A. Yes. By instantaneous I mean not really enough time to grasp
the fact that there was something in front of me, just there is a
cow, you know.

Q. You were looking straight ahead while you were driving?

A. Straight ahead. Yes, sir.

....

Q. Were you able to apply your brakes at all?

A. I don’t believe I was even able to do that.

Q. Were you able to swerve?

A. I don’t think so.

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These sworn testimonies indicate that Robinson was paying proper attention

to the roadway ahead of him, that he was traveling at a safe speed, and that he acted

in a reasonable manner when he was suddenly presented with an unexpected and

unanticipated situation of a black cow, the first cow in a herd of cattle, on a black

unlit roadway, in the middle of the night. These testimonies further indicate that

Robinson had no knowledge that there was an actual or possible hazard in the

roadway until just before impact, and that he had no knowledge that the alleged

flashing lights from a vehicle in the opposing lane served as a warning of a possible

hazard on the road ahead.

Thus, given the above, we find that Progressive carried its initial burden by

presenting evidence sufficient to show that there is no factual support for a finder of

fact to find Robinson had any fault in causing the July 5, 2021 accident.

The Board’s Burden of Proof

Having found above, that Progressive has shown that there is no factual

support for the proposition that its driver, Robinson, was at fault in causing this

accident, pursuant to La.Code Civ.P. art. 966, the burden is shifted to the Board to

prove it can produce factual evidence to support that Robinson had some

comparative fault. The Board attempts to do so by raising two arguments.

Robinson’s Alleged Inattentiveness

The Board first contends that a fact finder could find that Robinson was

inattentive in his driving. The Board argues that a fact finder could base its finding

on Robinson’s alleged failure to take any action to avoid the collision.

As highlighted above, the evidence in the record shows that Robinson was

traveling at night on a dark black-top roadway when he struck a black cow standing

in his lane of travel. Lutrell testified that Robinson was paying attention to the road

ahead of him and that there was no possible way that either of them knew or should
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have known a cow was in the roadway, thus possibly enabled Robinson to avoid the

accident by slowing down or swerving. Both Robinson and Luttrell testified that

Robinson was looking straight ahead with his headlights illuminated. Luttrell

testified that he had no criticism of the way Robinson was driving that night, and he

stated that there was nothing Robinson could have done to prevent the accident.

Additionally, Robinson’s testimony corroborates that of Luttrell.

Here, rather than pointing to contradictory evidence of the above testimonies,

or providing their own independent evidence, i.e. affidavits, sworn deposition

testimony, or other evidence, the Board merely argues that the trier of fact, either

judge or jury, possibly could or may find that Robinson could have avoided the

accident or lessened the severity of the impact had he slowed down or swerved. We

find this argument is mere speculative hindsight.

Speculation as to Robinson’s failure to slow down or swerve in the correct

direction, at the correct time, and at the correct amount of speed, when presented

with a “split second” between observing the cow in the roadway and the impact, is

speculative, and, thus, we find could not reasonably indicate fault as to the specific

facts of this case. We note that nearly any accident could be lessened or even

avoided if the driver had “precognitively exhibit[ed] perfection in performance”

when presented with such an unknown hazard. However, failure to do so, when

there is no evidence that Robinson should have–or even could have–done so, does

not equate to raising a genuine issue of material fact.

In summary, the Board asserts that Robinson must have been inattentive and

thus must be at fault because he failed to take any evasive action. We find that it is

unreasonable to have such action required from Robinson. Thus, by law, the Board

must produce actual evidence that Robinson was inattentive. We find it has failed

to do so.
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Robinson’s Fault from Presentation of Flashing Headlights

Next, the Board argues that Robinson allegedly ignored the implications when

a vehicle in the opposing lane flashed its headlights at him before he struck the cow.

Thus, the Board argues that Robinson acted unreasonably by doing nothing when he

saw the vehicle flash its headlights approximately a half a mile before the collision.

First, the Board’s argument misconstrues the evidence in the record. There is

conflicting testimony regarding whether a vehicle in the opposing lane even flashed

its headlights at Robinson’s vehicle. Robinson’s testimony was that he was not sure

if a vehicle from the opposing lane had flashed its headlights. According to his

testimony, Robinson asked Luttrell if the other vehicle had flashed its headlights at

him or if the opposing lane vehicle was riding over a bump. According to Robinson,

Luttrell’s response indicated uncertainty as well. Contradictorily, Luttrell testified

that the conversation between him and Robinson regarding the flashing headlights

resulted in their conclusion that a police officer must be ahead. We find this

contradiction does not equate to an issue of material facts.

Additionally, flashing headlights from a vehicle in the opposing lane can

indicate a variety of things: a police presence or a speed trap is ahead; your vehicle

is difficult to see because your headlights are not illuminated; your high beam

headlights are illuminated and distracting the drivers in the opposing lane; or,

granted perhaps, that there is a potential danger ahead. As such, flashing headlights

are not a universal indication that Robinson should slow down or take precautions.

Given the above, we find that there is no clear evidence that a vehicle flashed

its headlights at Robinson. Moreover, the fact that flashing headlights could mean

one thing relevant to this case does not dictate a finding that failure to correctly

interpret flashing headlights, given the multitude of potential meanings, could

reasonably be found to indicate comparative fault. The evidence in the record is that
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Robinson was unsure whether a vehicle in the opposing lane flashed its headlights

at him or that Robinson and Lutrell interpreted the alleged flashing lights to indicate

a police presence ahead. Therefore, we find Robinson’s failure to correctly interpret

the meaning of another vehicle flashing its headlights at him does not raise a genuine

issue of material fact and thus, is not sufficient evidence for the Board to carry its

burden to produce actual evidence of comparative fault by Robinson in causing the

accident.

Accordingly, we find this argument, as well as the Board’s first argument

regarding Robinson’s alleged potential to be found inattentive, are without merit.

CONCLUSION:

After a de novo review, we find no error by the trial court in granting Jalen

Robinson and Progressive Security Insurance Company’s motion for summary

judgment. Progressive, as movant but not the bearer of the burden of proof at trial

on whether Robinson was comparatively negligent, has successfully pointed out that

there is no factual support for a finder of fact to find that Robinson had any fault in

this accident. It did so by presenting the uncontradicted sworn testimonies of the

only two eyewitnesses, Robinson and Luttrell. These testimonies indicate that

Robinson was paying proper attention to the roadway ahead of him; that he was

traveling at a safe speed; and that he acted in a reasonable manner when he was

suddenly presented with an unexpected and unanticipated situation of a black cow,

the first cow in a herd of cattle, on a black unlit roadway, in his lane of travel, in the

middle of the night.

Progressive, having successfully carried their initial burden, pursuant to

La.Code Civ.P.art. 966, the burden then shifts to the Board to present evidence, not

mere speculation and argument, that show it can produce at trial factual support that

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Robinson had some comparative fault. The record shows that it failed to provide

any such proof.

Defendant, State of Louisiana, through the Board of Supervisors of the

University of Louisiana System, raises one assignment of error. It argues that the

trial court erroneously granted defendants, Jalen Robinson, and Progressive Security

Insurance Company’s motion for summary judgment, finding that there is no

evidence produced showing that Jalen Robinson was comparatively at fault for this

motor vehicle accident. As stated hereinabove, we find no merit to the assertion that

the trial court’s granting of the motion was in error.

DECREE:

The judgment of the trial court granting defendants, Jalen Robinson and

Progressive Security Insurance Company’s motion for summary judgment,

dismissing defendant driver, Jalen Robinson, and Progressive Security Insurance

Company from the case with prejudice, is affirmed.

Costs of these proceedings are assessed to the State of Louisiana, through the

Board of Supervisors of the University of Louisiana System, in the amount of

$2,271.10.

AFFIRMED.

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