251 So. 3d 532
La. Ct. App.2018Background
- Plaintiff Alex Talbert was injured while unloading a preloaded, sealed trailer delivered to Exel's Baton Rouge facility; he alleged boxes shifted and fell on him.
- Ozark Motor Lines transported the sealed trailer from Restoration Hardware (pickup in Maryland) to Exel in Baton Rouge; Ozark did not load, unload, or break the seal and performed only a pre-trip inspection without opening the trailer.
- Talbert sued Restoration Hardware and Ozark; Restoration Hardware was later dismissed and Talbert proceeded against Ozark.
- Ozark filed two motions for summary judgment (2015 denied; 2017 granted). Trial court granted the second motion and dismissed Talbert's claims; Talbert appealed.
- Talbert argued Ozark had a duty under 49 C.F.R. §392.9 to inspect the load and that his expert’s affidavit established causation from shifting during transit; Ozark argued subsection (b)(4) exempted drivers of sealed trailers and that no evidence showed a breach or causation by Ozark.
- The court treated the sealed-trailer exception as applicable, found no evidence Ozark breached a duty or caused shifting in transit, and held the expert’s affidavit lacked factual basis when considered alongside his deposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second summary judgment motion is precluded by issue preclusion/res judicata | Talbert: second motion repeats issues already decided by denial of first SJ and should be precluded | Ozark: denial of initial SJ is interlocutory and does not bar a subsequent SJ; court may reconsider | Denied preclusion; second SJ permissible |
| Whether Ozark owed a duty to inspect under 49 C.F.R. §392.9 | Talbert: driver must assure cargo is properly distributed and inspect within first 50 miles; sealed trailer exception inapplicable | Ozark: trailer was sealed and instructed not to be opened; §392.9(b)(4) exempts sealed trailers | Held §392.9(b)(4) applied; no duty to open/inspect sealed trailer |
| Whether Ozark breached any duty or acted unreasonably in transport | Talbert: expert opined boxes shifted during transit, implying breach | Ozark: no evidence of unusual events during transport; sealed both ends; no opportunity to inspect | No breach shown; record lacked evidence Ozark failed to exercise reasonable care |
| Whether plaintiff’s expert affidavit creates a genuine issue of material fact on causation | Talbert: McPhate’s affidavit says transit caused structural change and shifting | Ozark: McPhate’s deposition shows his opinion lacks factual basis and is speculative | Expert affidavit insufficient when deposition shows no factual basis; no genuine issue of material fact |
Key Cases Cited
- Boudreaux v. Vankerkhove, 993 So.2d 725 (La. App. 1st Cir.) (standard of review for summary judgment)
- Bozarth v. State LSU Med. Ctr./Chabert Med. Ctr., 35 So.3d 316 (La. App. 1st Cir.) (denial of SJ is interlocutory; second SJ may be considered)
- Thompson v. Ctr. for Pediatric & Adolescent Med., L.L.C., 244 So.3d 441 (La. App. 1st Cir.) (expert affidavit ordinarily must be considered on SJ)
- Hanks v. Entergy Corp., 944 So.2d 564 (La.) (preponderance standard explained)
- Mitchell v. Aaron's Rentals, 218 So.3d 167 (La. App. 1st Cir.) (expert opinion without factual basis insufficient to create genuine issue)