223 So. 3d 614
La. Ct. App.2017Background
- On Dec. 23, 2009, a propane delivery truck driven by Roger Moore (O’Nealgas) backed up and struck a USPS right‑hand‑drive Jeep driven by Raymond Chanler, pushing it into a ditch; Chanler sustained serious injuries.
- Plaintiffs sued Moore, O’Nealgas and insurer Jamestown; defendants pleaded comparative fault, sudden emergency, and act of God.
- Plaintiffs moved for partial summary judgment on liability; initial motion was denied after defendants submitted an adjuster’s affidavit and a purported telephone transcript of witness Ashley Chase.
- Plaintiffs later filed a renewed motion supported by Moore’s later deposition admitting he failed to check passenger‑side/blind‑spot mirrors and accidentally “bumped” the accelerator while trying to brake.
- Trial court (on second motion) excluded the Emory affidavit/transcript as inadmissible hearsay, found Moore’s deposition dispositive, and granted partial summary judgment assigning 100% fault to Moore and none to Chanler.
- Appellate court affirmed: refused to consider the inadmissible evidence, treated Moore’s deposition admissions as fatal to defendants’ case, and held Chanler faced a sudden emergency not of his making.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Emory affidavit / Chase telephone transcript | Exclude as inadmissible hearsay and unsworn interview; can’t defeat summary judgment | Affidavit shows interview occurred and impeaches Chase’s affidavit; should be considered | Excluded: double‑hearsay, unsworn transcript and adjustor affidavit not based on personal knowledge; not considered on de novo review |
| Conflict between Moore’s affidavit and later deposition | Deposition admissions (failed to check mirrors; hit accelerator) are candid and dispositive | Affidavit said Jeep too close etc.; deposition inconsistency is credibility call | No true factual conflict that would preclude summary judgment; deposition admissions accepted as establishing fault |
| Liability for backing motorist’s conduct | Moore failed to exercise high degree of care required when backing, especially as a professional truck driver carrying hazardous material | Argued Chanler stopped too close/in blind spot and could have avoided impact | Moore breached elevated duty (did not use passenger/blind‑spot mirrors; accelerated into Jeep); as a matter of law Moore solely at fault |
| Comparative fault / sudden emergency for Chanler | Chanler faced a sudden emergency created by Moore’s negligent backing; he reasonably honked, flashed lights, attempted to reverse | Defendants argued Chanler was in Moore’s blind spot and could have backed sooner | Held Chanler was not at fault; sudden emergency not caused by Chanler; no comparative fault assigned |
Key Cases Cited
- Peironnet v. Matador Res. Co., 144 So.3d 791 (La. 2013) (standard of appellate de novo review on summary judgment)
- Jackson v. City of New Orleans, 144 So.3d 876 (La. 2014) (definition of genuine issue of material fact)
- Fontenot v. Patterson Ins., 23 So.3d 259 (La. 2009) (if driver fails to see what he should, law treats him as having seen it)
- Davis v. Witt, 851 So.2d 1119 (La. 2003) (professional truck drivers held to elevated standard of care)
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (trial judge may not make credibility determinations on summary judgment)
- Rodrigue v. Firestone Tire & Rubber Co., 540 So.2d 477 (La. App. 1 Cir. 1989) (backing is a dangerous maneuver imposing high care)