451 So. 2d 158 | La. Ct. App. | 1984
Lead Opinion
This is an action originally brought against eight separate defendants by Dale Gaudet as administrator and/or natural tutor on behalf of his minor child, Glenn Gaudet, for personal injury to Glenn Gau-det which allegedly rendered Glenn a qua-draplegic. In the present aspect of the case, American Concrete Company, a division of Union Metal Manufacturing Company, moved for summary judgment, which was granted.
Summary judgment was sought on the bases of the pleadings and of the depositions of Lieutenant James R. Rushing, Donald Dale Gaudet, Patricia A. Gaudet, and Mark East. The record before us was made up on a designation of documents prepared by counsel for appellant, Dale Gaudet. See LSA-C.C.P. art. 2128.
The pleadings in the record do not support the granting of summary judgment in our opinion. However, the depositions mentioned above were not included in the list of documents designated to constitute the record. Judgments of the trial court are presumed correct and items of evidence missing from the record are pre: sumed to support the trial court’s judgment. United Pentecostal Church v. Interstate Surplus Underwriters, Underwriters at Lloyd, 368 So.2d 1104 (La.App. 2d Cir.1979), writ denied 371 So.2d 621 (1979). The trial court’s oral reasons for judgment are not in the designated record. Hence, although the pleadings fail to support the granting of summary judgment, it must be presumed that the granting of summary judgment was supported by the depositions omitted from the record but mentioned in American Concrete’s motion for summary judgment. If the depositions had not been omitted from the designation of the record, a remand would be in order, but as the record was designated, we must assume the omitted depositions would not support appellant’s position.
Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.
AFFIRMED.
PONDER, J., dissents and assigns reasons.
CARTER, J., concurs and assigns reasons.
. In an earlier unreported decision in the present case, this court affirmed the sustaining of an exception of no cause of action filed by Dixie Electric Membership Corporation, a co-defendant, in proceedings to which American Concrete was not directly a party. (Gaudet v. G.D.C., Inc., No. 14,454, La.App. 1st Cir., December 22, 1981.)
Concurrence Opinion
concurring.
, I agree with the result reached herein, but not for the reasons assigned.
This court has previously resolved the issues of this appeal in a earlier unreported decision in the present case by sustaining an exception of no cause of action in favor of Dixie Electric Membership Corporation.
If the user (Dixie Electric) of the light standard has no duty to use a standard that will not injure a driver who leaves the highway and runs into the light standard, clearly the manufacturer would have none. Additionally, the manufacturer has no duty to warn the user of characteristics which the user (Dixie Electric) has no duty to consider in use of the product.
The duty-risk analysis as set forth in Dixie Drive-It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), rehearing denied 1962, reiterated by the case of Naylor v. La. Dept. of Public Highways, 423 So.2d 674 (La.App. 1st Cir. 1982), writs denied, 427 So.2d 439 and 429 So.2d 127, 134 (La.1983), and the recent case of Allison v. City of Baton Rouge, 439 So.2d 570 (La.App. 1st Cir.1983) consists of four inquiries which must be answered affirmatively in order to hold a defendant liable.
The first of these questions that must be answered in the affirmative is whether or not the defendant owed a duty to the plaintiff. If this query is answered in the negative, then the subsequent queries as to whether or not the defendant breached the duty, whether or not the breach of the duty was a substantial factor in bringing about the harm to the plaintiff, i.e. was a cause in fact of the harm which occurred and the final question of whether or not the risk and harm encountered by the plaintiff fall within the scope of the protection afforded by the duty breached all become moot. I am aware of no authority and no Louisiana case has been cited to us to support appellant’s contention that the manufacturer of a light standard has a duty to manufacture one that will not injure an errant driver who leaves the highway and runs into it or even to design one that would minimize damages in such a situation. Further, the manufacturer has no duty to warn the user (Dixie Electric) of characteristics which the user has no duty to consider in the use of the product.
Accordingly, I am in agreement that the judgment of the trial court should be affirmed.
. Gaudet v. G.D.C., Inc. # 14,454 (La.App. 1st Cir. December 22, 1981).
Dissenting Opinion
dissenting.
I respectfully dissent, believing the presumption of correctness of the trial court’s judgment to be inappropriate in summary judgment cases.
Furthermore, I cannot agree with the concurring opinion, since it has the effect of converting a motion for summary judgment into a peremptory exception of no cause of action and of sustaining an exception which has not been filed.
Since there is insufficient evidence in the record to sustain a motion for summary judgment, I would reverse and remand.