129 So. 3d 825
La. Ct. App.2013Background
- Seven-year-old Gary Swanson, Jr. was struck by Johnny Treadaway on Patterson Drive, New Orleans, causing severe injuries.
- Plaintiff, Gary's mother, sued Treadaway, his insurer, the City of New Orleans, and LA DOTD for damages; LA DOTD was dismissed; claims against Treadaway and insurer settled; City remained as defendant.
- Plaintiff alleged the City failed to inspect/maintain the road shoulder and the foliage near a NORD playground fence, contributing to the accident.
- LA DOTD was dismissed after showing it lacked custody/control over the road area; plaintiff contended the City controlled the shoulder, playground, and fence.
- Plaintiff moved for summary judgment against the City; she did not appear at the hearing, and the trial court dismissed the motion; the City then moved for summary judgment with Treadaway's deposition attached.
- The trial court granted the City's summary judgment and dismissed the claims with prejudice; on de novo review, the appellate court found genuine issues of material fact remained and reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability under RS 9:2800 whether City had duty and control | Jenkins asserts City custody/control over fence/shoulder and defect-caused risk. | City contends no proven duty or causation; focus on Treadaway as sole cause. | Genuine issues of material fact exist; summary judgment improper. |
| Causation of accident by foliage condition | Overgrown foliage was a substantial factor causing the accident. | Treadaway's actions were sole cause; foliage not a substantial factor. | Issue of fact exists for trial; not resolved on summary judgment. |
Key Cases Cited
- Schultz v. Guoth, 57 So.3d 1002 (La. 2011) (appellate standard for summary judgment review)
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (summary judgment burden shifting on movant)
- Wright v. Louisiana Power & Light, 951 So.2d 1058 (La. 2007) (summary judgment standard; credibility not weighed)
- Bonin v. Ferrellgas, Inc., 877 So.2d 89 (La. 2004) (causation as factual determination by trier of fact)