258 So. 3d 11
La. Ct. App.2017Background
- On August 24, 2014, Rev. Gerald Rodney White was injured when a pecan tree in the state highway right-of-way fell on his truck during a storm. The tree stood across from the Manguns’ home.
- The Whites sued DOTD, the City, the Manguns, and insurers (Church Mutual, Safeco) for negligence in maintaining/inspecting/removing the defective tree.
- The City and then the Manguns (and their insurers) moved for summary judgment; the trial court granted summary judgment dismissing the City, the Manguns, Church Mutual, and Safeco as not at fault.
- DOTD appealed the dismissal of the Manguns, arguing there remained genuine issues of fact whether the Manguns had notice of the tree’s defect and thus could be a comparative-fault defendant.
- The Whites did not appeal the summary-judgment dismissal of the Manguns. DOTD sought to reference the dismissed Manguns for comparative fault at trial under La. Civ. Code art. 2323.
- The appellate court concluded La. Code Civ. P. art. 966(G) bars referencing a party adjudicated not at fault on summary judgment; because the Whites did not appeal, the dismissal as to the Manguns became final and DOTD’s appeal is dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a co-defendant dismissed under La. Code Civ. P. art. 966(G) can be referenced for comparative fault under La. Civ. Code art. 2323 when plaintiffs did not appeal the dismissal | Whites: (implicitly) did not appeal dismissal, so judgment final; dismissed parties not reintroduced | DOTD: dismissed Manguns remain relevant under art. 2323 and genuine factual disputes exist about Manguns’ notice and negligence | Held: Dismissed co-defendants adjudicated not at fault under art. 966(G) may not be referenced at trial; dismissal final because plaintiffs did not appeal, so DOTD’s appeal is dismissed (moot) |
| Whether there remained genuine issues of material fact about Manguns’ notice of the defect to defeat summary judgment | Whites: evidence did not create issues of fact about Manguns’ knowledge; trial court found no fault | DOTD: experts and facts create triable issue whether Manguns should have known and exercised care | Held: Court did not reach merits because plaintiff’s failure to appeal made dismissal final; therefore cannot reconsider or reference Manguns |
Key Cases Cited
- State Farm Mut. Auto. Ins. Co. v. McCabe, 150 So.3d 595 (La. App. 3 Cir.) (de novo standard for appellate review of summary judgment)
- Gray v. American National Property & Casualty Co., 977 So.2d 839 (La.) (summary judgment standard discussion)
- Dixon v. Gray Insurance Co., 223 So.3d 658 (La. App. 5 Cir.) (party found not at fault on summary judgment cannot be referenced for comparative fault; plaintiff’s failure to appeal makes dismissal final)
- Nunez v. Commercial Union Insurance Co., 780 So.2d 348 (La.) (when plaintiff does not appeal a dismissal, the judgment acquires the authority of the thing adjudged)
- Grimes v. Louisiana Medical Mutual Insurance Co., 36 So.3d 215 (La.) (appeal by another party does not revive portions of judgment adverse to plaintiff)