Joneka D. Henry Versus Jon M. Reeves, the State of Louisiana Through the Louisiana Department of Public Safety and Corrections, La Auto Liability Insurance Company and Progressive Paloverde Insurance Company ( 2020 )

JONEKA D. HENRY NO. 19-CA-550
C/W
VERSUS 19-C-456
JON M. REEVES AND THE STATE OF FIFTH CIRCUIT
LOUISIANA THROUGH ITS DEPARTMENT
OF PUBLIC SAFETY AND CORRECTIONS COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 781-258, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
April 28, 2020
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Marc E. Johnson
WRIT DENIED; APPEAL DISMISSED
SMC
FHW
MEJ
COUNSEL FOR PLAINTIFF/APPELLEE,
JONEKA D. HENRY
Suzette P. Bagneris
Emile A. Bagneris, III
COUNSEL FOR DEFENDANT/APPELLANT,
STATE OF LOUISIANA THROUGH ITS DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS AND JON M. REEVES
Honorable Jeffrey M. Landry
Lance S. Guest
CHEHARDY, C.J.
Defendants, Louisiana Department of Public Safety and Corrections
(“DPSC”) and Jon Reeves, seek review of the trial court’s grant of partial summary
judgment in favor of respondent/plaintiff, Joneka Henry, on the issue of liability.
For the following reasons, after a de novo review, we deny defendants’ writ
application and dismiss defendant’s appeal for lack of jurisdiction.
Factual Background and Procedural History
This suit arises out of a motor vehicle accident that occurred at
approximately noon on March 16, 2017, in Harvey, Louisiana. Plaintiff, Joneka
Henry, was proceeding northbound on Maplewood Drive, when defendant, Jon
Reeves, who was proceeding in the opposite direction, executed a left-hand turn
into Ms. Henry’s lane of travel. As a result, Ms. Henry’s vehicle struck the rear,
passenger side of Mr. Reeve’s vehicle. At the time of the accident, Mr. Reeves
was employed by DPSC and was driving his vehicle in the course and scope of his
employment.
On March 5, 2018, Ms. Henry filed suit against Jon Reeves and his
employer, DPSC, seeking damages for the injuries she sustained in the accident.
After defendants answered the petition and discovery was conducted, Ms. Henry
filed a motion for partial summary judgment on the issue of liability. Ms. Henry
argued that Mr. Reeves, as the left-turning motorist, is presumed to be at fault and
that defendants failed to rebut the presumption by showing that Mr. Reeves was
free from fault. In support of the motion, Ms. Henry submitted her own deposition
testimony, the deposition testimony of Mr. Reeves and his two guest passengers,
Gary Westcott, and Steven LaSalle, and the deposition testimony of the
investigating officer, Deputy Carl Quijano.
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In opposition, relying on the same deposition testimony, defendants argued
that a genuine issue of material fact remained regarding whether Ms. Henry was
comparatively at fault for the accident. Specifically, based on the testimony of Mr.
Reeves and his guest passengers surmising that Ms. Henry may have been
exceeding the speed limit at the time of the accident, defendants contend there is an
issue of fact regarding whether, but for her speeding, Ms. Henry could have
avoided the accident.
In her deposition, Ms. Henry testified that she was driving northbound on
Maplewood Drive towards the Westbank Expressway. She was traveling 25 miles-
an-hour, which is the speed limit on Maplewood Drive, and was wearing a seatbelt.
Ms. Henry first noticed a vehicle traveling in the opposite direction when the
vehicle was “about maybe one or two blocks” away from her. When she got close
to the intersection at Hugh Drive, the opposing vehicle “quickly turned [left] in
front of [her].” She did not leave her lane of travel. When asked what she did to
avoid the accident, Ms. Henry stated that she tried to brace herself and to apply the
brakes.
Mr. Reeves testified in his deposition that he and two guest passengers were
traveling southbound on Maplewood Drive with the intention of making a left-
hand turn onto Hugh Drive. As he looked forward, traffic from the opposite
direction appeared to be a block away and felt he “had plenty of time to make the
turn.” As he started to make the left turn, Mr. Reeves noticed that a vehicle on
Hugh Drive was stopped at the stop sign and protruding into the lane in which he
was turning. This caused Mr. Reeves to have “to adjust [his] path into that street
[to the right] a little bit [and] slow down a little bit … to avoid that vehicle.” As he
was executing a wider left turn than he first planned, Mr. Reeves heard one of his
passengers tell him he needed to “hurry up” because a vehicle was approaching.
Mr. Reeves then “pressed the gas … to get clear of the intersection, and as [he]
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was clearing the intersection” the rear passenger side tail-light of his vehicle was
struck. When asked about Ms. Henry’s speed, Mr. Reeves testified:
I could venture a guess that, based on the distance I first
observed her and the distance I had to travel versus the
distance she traveled, that it would probably have
exceeded the 25-mile-an-hour posted speed limit, but I
couldn’t give an accurate guesstimate.
Mr. Westcott testified that he was sitting in the front seat passenger side of
Mr. Reeve’s vehicle and was looking in the backseat talking to Steve LaSalle. He
could tell their vehicle was slowing down so he assumed they were approaching a
stop sign. He heard Mr. LaSalle yell “watch it,” and when he turned and looked,
he saw a white Durango headed straight for him. While Mr. Reeves was still in
Ms. Henry’s lane of travel, Mr. Westcott yelled something to the effect of “go,”
fearing the Durango would strike their vehicle and directly impact him. Mr.
Reeves immediately pressed the gas, but their vehicle was still struck by the
Durango. Mr. Westcott further stated that “with [Mr. Reeves] punching it,” it was
his opinion that Ms. Henry had enough time to swerve in order to avoid the
accident, but it looked to him as if she did not apply her brakes or did anything so
slow down as there were no skid marks.
Mr. LaSalle, who was sitting in the rear passenger seat of Mr. Reeves’
vehicle, testified that as Mr. Reeves began to execute the left turn, he could see the
Durango approaching in the distance, “a couple hundred feet in front of them.” He
noted that the Durango was getting closer and that Mr. Reeves was “slowing down
or pretty much almost came to a stop while making the turn.” He could not see
why Mr. Reeves was slowing down because he was focused on the approaching
Durango. Before he could say anything, he heard Mr. Westcott yell “watch out.”
Mr. Reeves then drove his vehicle forward but Mr. Henry’s vehicle still struck the
rear of Mr. Reeves’ vehicle. Mr. LaSalle further testified that he “believed [Ms.
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Henry] was speeding” and that “she was distracted by something;” otherwise, “had
[she] seen, a very slight correction could have avoided striking us.”
The investigating officer, Deputy Carl Quijano, testified that though he did
not issue a citation to Mr. Reeves, he found Mr. Reeves “in violation for failure to
yield while turning left” at the intersection, and found no violations on the part of
Ms. Henry. His report indicates that Ms. Henry advised him at the scene that she
was driving the speed limit and that she had applied her brakes attempting to avoid
the accident. Deputy Quijano further testified that, based on his investigation of
the accident, the drivers’ statements, and visual viewing of the accident scene, he
found no evidence to indicate that speed was a factor in the accident or that Ms.
Henry violated any traffic regulation.
Ms. Henry’s motion for partial summary judgment came for hearing on
August 15, 2019, after which the trial court took the matter under advisement. The
trial court issued judgment on August 23, 2019, with written reasons, granting Ms.
Henry’s partial motion for summary judgment on the issue of liability. The trial
court did not designate the judgment “as a final judgment … after an express
determination that there is no just reason for delay.” La. C.C.P. art. 1915(B)(1).
On September 5, 2019, defendants filed a notice of intent to apply for
supervisory writs seeking review of the August 23, 2019 judgment. A return date
was set for September 23, 2019. Defendants timely filed their writ application
wherein they argued that the trial court erred in granting plaintiff’s motion for
partial summary judgment on liability as questions of fact remained regarding
whether Ms. Henry was speeding and could have taken corrective action to avoid
the accident. In addition to the writ application, on September 19, 2019,
defendants filed a motion for devolutive appeal from the August 23, 2019
judgment, seeking review of the granting of plaintiff’s motion for partial summary
judgment on liability. An order of appeal was signed by the trial court on
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September 19, 2019. Prior to rendition of a decision on the writ application, the
record in the appeal was lodged. Thereafter, on the motion of defendants, this
Court consolidated defendants’ writ application with its appeal.
Appellate Review of the August 23, 2019 Judgment
In this instance, the granting of Ms. Henry’s motion for partial summary
judgment resolves the issue of liability of the parties but does not dispose of the
entire case as to any party because the amount of damages is still at issue.
Moreover, there is no dispute that the judgment in question lacks the necessary
designation as a “final judgment by the court after an express determination that
there is no just reason for delay.” Nonetheless, defendants argue the judgment is a
final judgment pursuant to La. C.C.P. art. 1915(A)(5), as the issue of liability has
been decided and only questions regarding damages remain.
The relevant provision of La. C.C.P. art. 1915 provides, in pertinent part:
A. A final judgment may be rendered and signed by the
court, even though it may not grant the successful party
or parties all of the relief prayed for, or may not
adjudicate all of the issues in the case, when the court:
***
(3) Grants a motion for summary judgment, as provided
by Articles 966 through 969, but not including a
summary judgment granted pursuant to Article 966(E).
***
(5) Signs a judgment on the issue of liability when that
issue has been tried separately by the court, or when, in a
jury trial, the issue of liability has been tried before a jury
and the issue of damages is to be tried before a different
jury.
***
B. (1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to
one or more but less than all of the claims, demands,
issues, or theories against a party, whether in the original
demand, reconventional demand, cross-claim, third-party
claim, or intervention, the judgment shall not constitute a
final judgment unless it is designated as a final judgment
by the court after an express determination that there is
no just reason for delay.
(2) In the absence of such a determination and
designation, any such order or decision shall not
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constitute a final judgment for the purpose of an
immediate appeal and may be revised at any time prior to
rendition of the judgment adjudicating all of the claims
and the rights and liabilities of all the parties.
The issue of whether a judgment granting a motion for partial summary
judgment on liability is a final, appealable judgment was addressed in Diecidue v.
Tittle, 12-0903 (La. App. 4 Cir. 8/14/13), 122 So.3d 1143, 1145-46, which
reasoned and held as follows:
Here, the motion for partial summary judgment was
granted as to the liability of [defendant] for legal
malpractice pursuant to Louisiana Code of Civil
Procedure article 966(E), leaving only the issue of
damages to be tried. Therefore, by virtue of the literal
language of Louisiana Code of Civil Procedure article
1915(A)(3), the judgment is not immediately appealable
in the absence of a designation of finality pursuant to art.
1915(B). In Crescent City Physicians, Inc. v. Desse,
2004-1280 (La. 10/1/04), 883 So.2d 963, the Louisiana
Supreme Court reversed and dismissed the appeal of a
partial summary judgment on the issue of liability. In his
concurrence, Chief Justice Calogero noted that La.
C.C.P. art. 1915(A)(5) “is not applicable in this case
because the issue of liability was not tried separately by
the court … . Instead, the trial court granted a partial
summary judgment on the liability issue pursuant to …
art. 966(E).” Id. (Calogero, C.J., concurring).
Accordingly, we find that absent a designation of finality
pursuant to Louisiana Code of Civil Procedure 1915(B),
the partial summary judgment rendered by the trial court
on the issue of liability is not appealable. Because we
lack jurisdiction, we dismiss the instant appeal.
Based on the foregoing, we likewise find that the trial court’s August 23,
2019 judgment granting Ms. Henry’s motion for partial summary judgment on the
issue of liability was issued pursuant to La. C.C.P. art. 966(E), and because there is
no express designation of finality pursuant to La. C.C.P. art. 1915(B), the judgment
is not appealable and this Court lacks jurisdiction as to defendants’ appeal.
Consequently, our review of the trial court’s August 23, 2019 judgment is pursuant
to an exercise of our supervisory jurisdiction.
19-CA-550 C/W 19-C-456 6
Merits of the Summary Judgment
“The summary judgment procedure is designed to secure the just, speedy,
and inexpensive determination of every action, except those disallowed by Article
969. The procedure is favored and shall be construed to accomplish these ends.”
La. C.C.P. art 966(A)(2). “A motion for summary judgment shall be granted if the
motion, memorandum, and supporting documents show that there is no genuine
issue as to material fact and that the mover is entitled to judgment as a matter of
law.” La. C.C.P. art 966(A)(3). “The burden of proof rests with the mover.
Nevertheless, if the mover will not be able to 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. C.C.P. art.
966(D)(1).
A fact is “material” for purposes of summary judgment if it potentially
insures or precludes recovery, affects a litigant’s ultimate success, or determines
the outcome of a legal dispute. Boutin v. Roman Catholic Church of the Diocese of
Baton Rouge, 14-313 (La. App. 5 Cir. 10/29/14), 164 So.3d 243, 245, writ denied,
14-2495 (La. 2/13/15), 159 So.3d 469.
Appellate courts review summary judgments de novo using the same criteria
applied by the trial courts to determine whether summary judgment is appropriate.
Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086,
1087. The decision as to the propriety of a grant of a motion for summary
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judgment must be made with reference to the substantive law applicable to the
case. Muller v. Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883,
885.
The duty of a left-turning motorist is set forth in La. R.S. 32:122, which
provides, in pertinent part, that “[t]he driver of a vehicle within an intersection
intending to turn to the left shall yield the right of way to all vehicles approaching
from the opposite direction which are within the intersection or so close thereto as
to constitute an immediate hazard.” Additionally, La. R.S. 32:104(A) states that
“[n]o person shall … turn a vehicle from a direct course or move right or left upon
a roadway unless and until such movement can be made with reasonable safety.”
Drivers executing left turns have a heavy burden of care under the law.
Severson v. St. Catherine of Sienna Catholic Church, 97-1026 (La. App. 5 Cir.
2/11/98), 707 So.2d 1026, 1029, writ denied, 98-653 (La. 4/24/98), 717 So.2d
1178; Corvers v. Acme Truck Lines, 95-925 (La. App. 5 Cir. 4/16/96), 673 So.2d
1088, 1090 n. 3. Before attempting a left turn, a motorist should ascertain whether
it can be completed safely. Theriot v. Lasseigne, 93-2661 (La. 7/5/94), 640 So.2d
1305, 1312. Because a left turn is one of the most dangerous maneuvers for a
driver to execute, there is a presumption of negligence on a left-turning motorist
involved in a motor vehicle accident. Allstate Ins. Co. v. Reynolds, 97-1178 (La.
App. 5 Cir. 5/13/98), 712 So.2d 981, 984, writ denied, 98-1583 (La. 6/24/98), 719
So.2d 981. Additionally, the oncoming driver may take advantage of a
presumption of the left-turning motorist’s negligence when the oncoming driver
proves that the left-turning motorist executed a left-hand turn and crossed the
center line at the time of impact. Miller v. Leonard, 588 So.2d 79, 81 (La. 1991);
Baker v. State Farm Mut. Auto. Ins. Co., 49,468 (La. App. 2 Cir. 1/21/15), 162
So.3d 405, 409. In Plaisance v. Epherson, 466 So.2d 485, 487 (La. App. 5th Cir.
1985), we stated:
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Under our jurisprudence a motorist attempting to turn left
must make certain the turn can be made without danger
to normal overtaking or oncoming traffic and he must
yield the right of way to such vehicles. He must refrain
from making the left turn unless the way is clear, and if a
collision occurs while he is attempting such a maneuver
the burden is upon him to show that he was free from
negligence.
“The burden of proving freedom from negligence in executing the turn rests
upon the person making the turn.” Id. If a motorist fails to see what he should
have seen, then the law charges him with having seen what he should have seen,
and the court examines his subsequent conduct on the premise that he did see what
he should have seen. Severson, 707 So.2d at 1030. In addition, an on-coming
motorist has a right to assume that a left-turning motorist will yield the right-of-
way. Walker v. McCartney, 96-706 (La. App. 5 Cir. 9/17/97), 700 So.2d 898, 902-
03.
All motorists on Louisiana highways must drive with due regard for the
traffic on the highway and have an affirmative duty not to drive faster than is
reasonable and prudent under the conditions and potential hazards existing at the
time. La. R.S. 32:64(A). Thus, notwithstanding the presumption of negligence
attributed to a left-turning driver, the favored motorist can still be assessed with
comparative fault if her substandard conduct contributed to the cause of the
accident. Anderson v. May, 01-1031 (La. App. 5 Cir. 2/13/12), 812 So.2d 81, 85.
A motorist making a left turn at an intersection will be held free of negligence
when the collision results because of the oncoming vehicle’s excessive speed
which he could not have reasonably anticipated or an oncoming driver’s lack of
lookout. Id.In the instant case, Ms. Henry’s initial burden was simply to establish that
she had the right of way and that Mr. Reeves turned left into her path when she
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was so close to the intersection as to constitute an immediate hazard. There is no
dispute that Ms. Henry was the favored motorist or that Mr. Reeves turned left.
The fact that their vehicles collided shows Ms. Henry was close enough to the
intersection to constitute an immediate hazard at the time Mr. Reeves turned. See
Severson, 707 So.2d at 1030. The burden then shifted to Mr. Reeves to show that
he was free from negligence in failing to see Ms. Henry (e.g., either because she
was speeding or because of a lack of lookout).
While the facts of the accident are largely undisputed, the parties’ versions
conflict in some regard. Mr. Reeves contends that he began to execute the left turn
when Ms. Henry’s vehicle was about a block and a half away. Ms. Henry says that
though she first observed Mr. Reeves’ vehicle from a block or so away, as she
proceeded north on Maplewood Drive, he turned “quickly” in front of her. Ms.
Henry said she was traveling at 25 miles per hour, the posted speed limit. Mr.
Reeves “guesttimates” that she was speeding and Mr. LaSalle “believes” she was
speeding. Ms. Henry stated that she braced herself and tried to apply her brakes
prior to impact, and Deputy Quijano recorded that she had applied her brakes. Mr.
Reeves and his guest passengers were of the opinion that Ms. Henry did not apply
her brakes or take any evasive action in order to avoid the collision because she
remained in her lane the entire time and there were no skid marks found at the
scene.
Issues of credibility have no place in summary judgment procedure.
Hutchison v. Knights of Columbus, 03-1533 (La. 2/20/04), 866 So.2d 228, 234.
This principle is generally applied where the evidence before the trial court is
conflicting, forcing the trial court to accept one version of the facts over another.
Severson, 707 So.2d at 1030. Although the conflicting testimonies herein may
appear to establish credibility issues, which could not be decided on a motion for
summary judgment, in fact they do not. It is undisputed that Ms. Henry had the
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right of way. According to Mr. Reeves’ own testimony, while he saw Ms. Henry’s
vehicle from about a block and a half away, and believed he had sufficient time to
successfully make the turn, he encountered a situation on the inferior street that
required him to actually slow down during the turn—almost to a stop—and make a
wider left turn than originally planned. Also, as to Mr. LaSalle’s assumption that
Ms. Henry was “distracted by something,” because otherwise she would have
taken action to avoid the accident, it is merely an assumption not supported by any
factual evidence. Further, though Mr. Reeves and Mr. LaSalle “believe” Ms.
Henry was speeding, defendants have produced no evidence to support this belief.
Moreover, Deputy Quijano found no evidence at the scene to suggest that Ms.
Henry was speeding.
Ultimate or conclusory facts or conclusions of law are not to be utilized on a
summary judgment motion. Thompson v. South Central Bell Tel. Co., 411 So.2d
26, 28 (La. 1982). We find that the “guesttimate” of Mr. Reeves, the “belief” of
Mr. LaSalle that Ms. Henry was speeding, and the assumption of Mr. Westcott that
Ms. Henry must have been “distracted” are statements as to ultimate or conclusory
facts or conclusions of law with regard to Ms. Henry’s fault in causing the
accident. These statements cannot be used to defeat summary judgment. Thus,
other than pure speculation and conjecture, defendants have provided no expert
testimony that could potentially support their unsubstantiated contentions. As we
stated in Severson, “[s]uch a finding is not within the parameters of our authority to
take judicial notice.” Severson, 707 So.2d at 1031.
Without factual support for defendants’ contention that the accident could
have been caused by Ms. Henry’s excessive speed or lack of lookout, we find
defendants have failed to establish the required basis to rebut the presumption in
favor of Ms. Henry as the oncoming motorist and, thus, have failed to provide a
basis upon which to deny the motion for summary judgment.
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Considering the foregoing, we conclude the trial court did not err in granting
partial summary judgment on liability in favor of Ms. Henry. Accordingly, we
deny defendants’ writ application. We also dismiss defendants’ appeal for lack of
jurisdiction.
WRIT DENIED; APPEAL DISMISSED
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 28, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
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19-CA-550
C/W 19-C-456
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
SUZETTE P. BAGNERIS (APPELLEE) LANCE S. GUEST (APPELLANT)
MAILED
EMILE A. BAGNERIS, III (ATTORNEY) HONORABLE JEFFREY M. LANDRY
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