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Christophe v. Washington

Court of Appeals of Louisiana, First Circuit

February 14, 2019

JENNIFER MARVEL CHRISTOPHE AND AMBER NICOLE HICKS
v.
BRIENNE ELISSE WASHINGTON, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, KIAWANA MILLER, ABC INSURANCE COMPANY, AND THE CITY OF MARINGOUIN

          Appealed from the Eighteenth Judicial District Court In and for the Parish of Iberville State of Louisiana Suit Number 73, 539 Honorable Alvin Batiste, Jr., Presiding

          Chad A. Aguillard New Roads, LA Counsel for Plaintiff/Appellant Jennifer Marvel Christophe

          R. Layne Royer Heather M. Royer Baton Rouge, LA Counsel for Plaintiff/Appellant Amber Nicole Hicks

          Candice L. Rodgers Baton Rouge, LA Counsel for Defendant/Appellee The Town of Maringouin [1] J. Scott Thomas Baton Rouge, LA

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          GUIDRY, J.

         Plaintiff/Appellant, Amber Nicole Hicks, appeals from an August 11, 2016 trial court judgment granting summary judgment in favor of defendant, Town of Maringouin, and dismissing her claims against it with prejudice. Additionally, the Town of Maringouin filed an application for supervisory review, seeking review of a separate trial court judgment signed on April 25, 2018, denying its motion to strike and exception raising the objection of prescription. For the reasons that follow, we affirm the August 11, 2016 judgment and deny the Town's application for supervisory review.

         FACTS AND PROCEDURAL HISTORY

         On April 13, 2013, Jennifer Christophe was operating a 2005 Hyundai westbound on Landry Drive approaching its intersection with Railroad Avenue in the Town of Maringouin (the Town). Hicks was a passenger in Christophe's vehicle. At the same time, Brienne Washington was operating a 1997 Toyota owned by Morris Miller, the father of Washington's passenger, Kiawana Miller, heading southbound on Railroad Avenue. Washington executed a left turn, entered the intersection of Landry Drive and Railroad Avenue, and collided with the vehicle operated by Christophe.

         Thereafter, Christophe and Hicks filed a petition for damages, seeking damages for injuries sustained as a result of the accident and naming as defendants: Washington and her insurer, Allstate Property and Casualty Insurance Company (Allstate); Kiawana Miller and her insurer, ABC Insurance Company (ABC); and the Town.[2] As to the Town, plaintiffs asserted that it is liable for plaintiffs' damages because a stop sign that was supposed to be at the end of Railroad Avenue was not where it should have been and therefore, the Town is liable for failure to maintain the traffic control system in a reasonably prudent manner.

         Plaintiffs filed a supplemental and amending petition on April 30, 2015, naming James D. "Buddy" Caldwell, Louisiana Attorney General; Sherri H. Lebas, Secretary, Louisiana Department of Transportation and Development; and Bud Thompson, Director, Louisiana Office of Risk Management, as additional defendants. Plaintiffs asserted that, alternatively, the State of Louisiana, through the Department of Transportation and Development, is the legal entity responsible for the maintenance and control of traffic signals on Louisiana roadways and is liable for its failure to maintain the traffic control system in a reasonably prudent manner. Plaintiffs also filed a second supplemental and amending petition naming Christophe's uninsured/underinsured motorist insurer, Republic Fire and Casualty Insurance, as a defendant.

         On April 1, 2016, the Town filed a motion for summary judgment, asserting that plaintiffs are unable to establish that the Town had custody and control of the roadway and stop sign at issue and alternatively, that plaintiffs cannot establish that the Town had actual or constructive notice that the stop sign was missing. The Town attached a copy of the deposition of Lee Butler, utility superintendent for the Town, to its motion. Thereafter, plaintiffs filed an opposition, attaching an affidavit from Hicks and several pictures of the road, intersection, and street sign.

         The hearing on the Town's motion was set for June 2, 2016. However, the trial court continued the matter to July 21, 2016. Thereafter, the Town filed a supplemental and amended memorandum in support of its motion for summary judgment, asserting that the affidavit signed by Hicks and filed in response to its motion for summary judgment conflicts with her prior deposition testimony, that she offers no explanation or justification for any inconsistency, and as such, it does not create a genuine issue of material fact where one did not previously exist. The Town also requested that the photographs attached to plaintiffs' opposition be stricken as not complying with La. C.C.P. art. 966(A)(4). The Town attached a copy of Hicks's deposition to its supplemental memorandum.

         The plaintiffs filed a supplemental opposition on July 12, 2016, asserting that Hicks's affidavit was not a material change from her previous deposition testimony and arguing that the photographs were properly before the court on the motion for summary judgment, because they were attachments to Christophe's deposition. Plaintiffs attached a copy of Christophe's deposition to their ...


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