150 So. 3d 595
La. Ct. App.2014Background
- On Feb. 14, 2012, City of Alexandria employee Steven Guillory, driving within the scope of employment at the 55 mph limit on a closed-range (stock-law) highway, struck three cows that had wandered onto LA Hwy 1 at night and then collided with Nicole Bordelon’s vehicle.
- The cows belonged to John and Nancy McCabe and had escaped from their fenced pasture; the road segment was unlit and the cows were dark-colored.
- Bordelon slowed, called the sheriff, followed behind the cows to warn others, and flashed high beams to warn Guillory; Guillory flashed back and testified he never saw the cows before impact.
- State Farm (Bordelon’s insurer) first sued for property damage; Bordelon later sued; suits were consolidated against the McCabes, Guillory, and the City.
- Guillory and the City moved for summary judgment and were dismissed by the trial court; Bordelon and State Farm did not appeal that dismissal; the McCabes (co-defendants) appealed the dismissal and sought to preserve claims about Guillory/City fault for allocation under comparative fault.
- The appellate court affirmed the partial summary judgment as to Guillory and the City (unchallenged by plaintiffs), but held any judgment against the McCabes must be reduced to reflect the comparative fault, if any, of Guillory/City.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment dismissing Guillory and the City was improper | McCabes: genuine factual disputes exist about Guillory’s negligence and comparative fault | Guillory/City: stock-law highway removes duty to lookout; livestock owner is primarily liable | Affirmed: plaintiffs didn’t appeal dismissal, so it became final and cannot be reviewed here |
| Whether McCabes’ liability must account for dismissed parties’ fault | McCabes: any judgment against them should be reduced by Guillory/City fault | Guillory/City: their dismissal precludes allocation of fault to them | Held for McCabes on appeal: McCabes are entitled to reduction of judgment by Guillory/City percentage under comparative fault despite dismissal |
| Whether stock-law liability of livestock owner bars apportionment to third parties | (implicit) McCabes argued third-party fault could reduce their exposure | Guillory/City argued stock-law makes livestock owner fully liable so third parties are not partially liable | Rejected: stock-law liability does not preclude assessing comparative fault against third parties |
| Whether Guillory’s conduct (failing to see cows / failing to slow when flashed) presents jury question on negligence | McCabes: Guillory may have been negligent and should bear some fault | Guillory/City: no duty to lookout under stock-law; not liable | Held: GuilIory’s negligence/fault is a jury question for allocation under La. Civ. Code art. 2323 |
Key Cases Cited
- Gray v. Am. Nat’l Prop. & Cas. Co., 977 So.2d 839 (La. 2008) (de novo standard for appellate review of summary judgment)
- Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 958 So.2d 634 (La. 2007) (standards governing summary judgment review)
- Nunez v. Commercial Union Ins. Co., 780 So.2d 348 (La. 2001) (appeal limited to portions of judgment adverse to appellant)
- Grimes v. La. Med. Mut. Ins. Co., 36 So.3d 215 (La. 2010) (unappealed dismissal becomes final and bars collateral appellate review)
- Church v. Shrell, 8 So.3d 70 (La. App. 2 Cir. 2009) (livestock owner may attempt to show independent cause to escape stock-law liability)
- Buller v. Am. Nat’l Prop. & Cas. Cos., 838 So.2d 67 (La. App. 3 Cir. 2003) (stock-law liability of owner does not prevent allocating fault to a negligent third party)
- Khaled v. Windham, 657 So.2d 672 (La. App. 1 Cir. 1995) (comparative negligence assessed by reasonableness of conduct under circumstances)