430 So. 2d 1084 | La. Ct. App. | 1983
Lead Opinion
This is an appeal by plaintiffs from a district court ruling which granted summary judgment in favor of one of the defendants, The State of Louisiana, through the Department of Transportation and Development (formerly Department of Highways), and ordered that that defendant be dismissed from these proceedings.
Plaintiffs’ petition is in tort, and basically alleges that on December 29, 1977, they were traveling in a vehicle which was being driven by plaintiff husband on “Sam Houston Park Road”
In due course, defendant, State of Louisiana, through the Department of Transportation and Development filed a motion for summary judgment which in essence stated that Sam Houston Park Road, .2 miles south of Sutherland Road in Calcasieu Parish, State of Louisiana, is not a part of the State Highway System and is not maintained by the Louisiana Department of Transportation and Development. It annexed the affidavit of Thomas C. Danna, Engineering Specialist II for the Department of Transportation and Development which stated:
“Act 40 of the Louisiana Legislature of 1955 did ‘create and establish’ a system of State Highways consisting of various specified and numbered routes, and provided for the future adjustments and expansion of the system within certain limits. The act also stipulated ‘all laws or parts of laws in conflict herewith’ was repealed. Thus, the current State Highway System consists only of those highways authorized under the cited Act 40, including certain projected locations not presently included in the total mileage maintained by the Department, but which has been approved as Route extensions. Sam Houston Park Road, .2 miles south of Sutherland Road in Calcasieu Parish, State of Louisiana, was not included among the routes enumerated in Act 40 of 1955, nor has it since been added to the State Route System through action of the Department of Transportation and Development.”
The affidavit further stated that the quoted facts were derived from certain records on file in the Works Unit of the Department of Development, which records are maintained under the affiant’s supervision.
No countervailing affidavits were filed by plaintiffs, neither did they state reasons by affidavit why they could not present facts essential to justify their opposition to the motion for summary judgment.
After hearing, summary judgment was granted as aforesaid and plaintiffs have appealed to this Court.
La.C.C.P. Article 966 provides for motions for summary judgment, and the Article which follows, 967, states in part:
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his plead*1086 ing, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”
In brief before this Court, but apparently not advanced on the trial level (and certainly not by countervailing affidavit) plaintiffs suggest that the Department has responsibility and exposure and should not be dismissed by summary judgment, citing, La. R.S. 48:270, which read, at the time of the accident herein, as follows:
“The department shall construct, maintain, and improve roads, whether hard surfaced or otherwise, within state parks and connect such park sites with existing highways.
Amended by Acts 1968, No. 551, § l.”2
Even assuming arguendo that there is merit to the above supposition, it is evident that nowhere in plaintiffs’ pleadings is there contained any allegation that the accident occurred on any road within any state park or any road which connects such park sites with existing highways. Further the reference to “Sam Houston Park Road”, although suggesting that there is a park by that name, does not suggest or allege that it is a state park.
Had plaintiffs been able to establish any issue of material fact concerning the status of the road mentioned in their petition and the defendant State’s responsibility and/or exposure in connection with that road, it would have been a simple task to file a countervailing affidavit in that connection. La.C.C.P. Article 967 requires that they should have done so in order to prevent summary judgment being rendered against them. We find that summary judgment is appropriate in this instance and that the trial court was correct in granting it.
Costs on appeal are assessed against plaintiffs.
AFFIRMED.
DOUCET, J., dissents and assigns written reasons.
. Emphasis by Court of Appeal.
. The prior statute and source of R.S. 48:270 made the Department’s duty discretionary, dependent upon request by resolution of the State Parks Commission. La.R.S. 48:270, as quoted above, was repealed by Act 245 of 1982. La. R.S. 48:756 was amended subsequent to the date of the accident herein, Act 231 of 1982, and as amended, again provides for the Department to construct, maintain, and improve roads within the State parks and commerative areas and to connect such sites with existing highways.
Dissenting Opinion
dissenting.
The movant is not entitled to judgment as a matter of law and genuine issues of material fact exist. La.C.C.P. Art. 966. R.S. 48:270 imposes a duty on defendant to maintain roads connecting state parks with adjoining highways. That Sam Houston State Park Road is such a road, within the meaning of the statute, is not seriously disputed. Accordingly, I respectfully dissent.
The following facts were stipulated to as accurrate in briefs filed before this court: The plaintiffs were traveling through Cal-casieu Parish and had stopped at Sam Houston State Park. They left their trailer at the park and went to a restaurant for dinner, and in returning to the park at approximately 9:00 P.M., were involved in a one vehicle accident when their automobile left the roadway and struck a pine tree. The accident occurred on Sam Houston Park Road, approximately two-tenths (2/io) of a mile south of the intersection of Sutherland Road and Highway 378 on a paved roadway between there and the State Park. At the point at which the accident occurred, the roadway makes an eighty (80 °) degree curve to the left and there are no signs or other warning devices. The Kappel vehicle struck a tree. As a result of the accident Walter Kappel suffered bruises and a concussion, had trouble with his right leg and knee, and Mrs. Kappel suffered cuts and bruises with subsequent vision problems as well as knee problems. Also, their vehicle was totalled.
Suit was timely filed on behalf of plaintiffs alleging the State was responsible for
The State responded by filing a Motion for Summary Judgment alleging its duty extended only to maintaining the enumerated highways in the State highway system, citing in support thereof La.R.S. 48:756, and that this highway was not an enumerated highway. The trial judge agreed.
A Motion for Summary Judgment is properly sustained only where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that mover is entitled to judgment as a matter of law.” La.Code Civ.Pro.Art. 966.
The applicable statutory law concerning the Department’s responsibility for roads is set forth in LSA: Title 48, as follows:
§ 270. Construction and maintenance of park roads1
The department shall construct, maintain, and improve roads, whether hard surfaced or otherwise, within state parks and connect such park sites with existing highways.
Amended by Acts 1968, No. 551, § 1. (emphasis added)
§ 756. No work on parish roads by state department of highways2
The state department of highways shall perform no work on the parish road system or on any other roads or streets which are not in the state highways system, whether such work is construction or maintenance and whether the work is done at the expense of the state or the expense of the governing authority of the parishes. In an emergency as found and declared by the governor, the governor may expend state funds on parish roads. Provided, however, that the department of highways may stripe parish roads upon the request of any parish, with the parish bearing the cost of said striping, when in the opinion of the director surplus manpower and equipment are available and the purchase of new equipment is not required. Acts 1974, No. 336, § 1; Acts 1976, No. 390, § 1. (emphasis added)
The State highways system is defined at R.S. 48:191. Sam Houston Park Road is not among the roads enumerated in R.S. 48:191, however, the functions of the Department extends, inter alia, to construction, maintenance and regulation of “public highways, roads and other transportation-related facilities as may be conferred on the department by applicable law.” R.S. 48:21(A).
Appellee contends, and the majority agrees, that R.S. 48:756 precludes liability where the road involved is one for which the Department is responsible under the terms of R.S. 48:270. I disagree. R.S. 48:270 imposes a duty of maintenance with regard to state park roads and connecting roads thereto.
The majority opinion notes that the petition refers to “Sam Houston Park Road” and implies therefrom an ambiguity as to
For the reasons assigned hereinabove, I respectfully dissent.
. The prior statute and source of R.S. 48:270 made the Department’s duty discretionary, dependent upon request by Resolution of the State Park’s Commission. R.S. 48:270 was repealed by Act 245 of 1982, infra at footnote 2, however, its substance was retained in amendment to R.S. 48:756.
. Subsequent to the accident and trial court action complained of herein, R.S. 48:756 was amended to expressly provide for the Department to construct, maintain and improve roads within and connecting state parks. See House Bill 385, Act 245, La. Session Law Service 1982, vol. 3, p. 1025.
.Pursuant to La.C.C.P.Art. 1391 the trial court should have taken judicial notice of R.S. 48:270 and its application.
