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White v. Louisiana Department of Transportation & Development

Court of Appeals of Louisiana, Third Circuit

March 13, 2019

GERALD R. WHITE, ET UX
v.
LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, ET AL

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 253, 702, DIV. A HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE.

          FRED A. PHARIS PHARIS LAW OFFICES COUNSEL FOR PLAINTIFFS/APPELLANTS GERALD R. WHITE AND CHARLOTTE WHITE

          JEROLD EDWARD KNOLL THE KNOLL LAW FIRM, LLC COUNSEL FOR PLAINTIFFS/APPELLANTS GERALD R. WHITE AND CHARLOTTE WHITE

          JEFF LANDRY ATTORNEY GENERAL PAULA E. MILES ASSISTANT ATTORNEY GENERAL LOUISIANA DEPARTMENT OF JUSTICE COUNSEL FOR DEFENDANT/APPELLEE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.

          JONATHAN W. PERRY JUDGE.

         Plaintiffs, Gerald and Charlotte White, appeal the judgment of the trial court granting the motion for summary judgment filed by Defendant, State of Louisiana, Through the Department of Transportation and Development (DOTD), and dismissing Plaintiffs' claims with prejudice. For the following reasons, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         This case was previously before this court on an appeal from a summary judgment as White v. Louisiana Department of Transportation & Development, 17-629, pp. 2-3 (La.App. 3 Cir. 12/6/17), 258 So.3d 11, 13, wherein this court summarized the facts and procedural history to that point, as follows:

On August 24, 2014, [Plaintiff, Gerald] White was driving in the eastbound lane of Highway 496 in Alexandria, Louisiana during a violent thunderstorm. As Mr. White passed the [home of Garold and Mickey Mangun], a pecan tree located in the right-of-way across the street and maintained by DOTD, fell on Mr. White's truck, pinning him inside the truck. Mr. White had to be extracted from the truck, and he sustained injuries.
Mr. White brought suit for general and special damages, including physical pain and suffering, mental anguish and distress, permanent injuries, medical expenses, lost wages, and any other damages incurred from the accident. Mr. White's wife, Charlotte White, brought a claim for loss of consortium. Mr. and Mrs. White (hereafter "the Whites") filed suit against the City of Alexandria (hereafter "the City"), DOTD, the Manguns and their insurers, Church Mutual and Safeco, alleging negligence for failure to maintain, inspect, and remove the damaged pecan tree.
The City filed an answer to the petition, pleading the affirmative defense of comparative fault. The Manguns answered that they had no actual or constructive notice of the defective tree because they "rarely, if ever" went onto the property where the tree was located. Furthermore, the defect on the tree was only visible from the side facing opposite of the roadway and away from the Manguns' home.
The City filed a motion for summary judgment asserting that DOTD is responsible for maintaining the right-of-ways on State highways and that the City had no notice of the defective pecan tree. The trial court granted the City's motion for summary judgment.
The Manguns and Church Mutual filed a motion for summary judgment. Thereafter, Safeco also filed a motion for summary judgment. The Manguns asserted that they had no knowledge of the tree's defect because they neither maintained the tree nor did they mow the right-of-way. During his deposition, DOTD's expert arborist, Mr. Malcolm Guidry, described the tree's canopy as healthy. The Whites' expert arborist, Mr. Robert Thibodeaux, testified that he saw signs of the tree's failure through bark twists and discoloration, as well as a co-dominant trunk visible on pre-accident photographs of the tree. However, Mr. Thibodeaux noted that these signs were not signs that he would expect a layperson to recognize as signs of the tree's failure. DOTD opposed the summary judgment, arguing that the Manguns did not exercise reasonable care through their failure to maintain, inspect, and remedy the defective tree. The trial court granted summary ...

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