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Norman v. Michael A. Shelton Enterprise, Inc.

Court of Appeals of Louisiana, Third Circuit

May 29, 2019

DANIEL NORMAN
v.
MICHAEL A. SHELTON ENTERPRISE, INC., ET AL.

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 255, 532 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

          Christopher Jude Roy, Jr. Chris J. Roy, Jr., A Law Corporation COUNSEL FOR: Plaintiff/Appellant - Daniel Norman

          Lisa Ann McLachlan Musgrave, McLachlan & Penn, LLC COUNSEL FOR: Defendants/Appellees - Simms Transportation, Inc. and Michael A. Shelton Enterprise, Inc.

          Joshua Joy Dara, Sr. COUNSEL FOR: Defendants/Appellees - Simms Transportation, Inc. and Michael A. Shelton Enterprise, Inc.

          Thomas Taylor Townsend COUNSEL FOR; Plaintiff/Appellant - Daniel Norman

          Jeff Landry Attorney General Blake E. Ryland Assistant Attorney General Leisa B. Lawson Assistant Attorney General Louisiana Department of Justice COUNSEL FOR: Defendant/Appellee - State of Louisiana, Department of Transportation and Development

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE

         For the reasons discussed in the consolidated case of Daniel Norman v. Michael Shelton Enterprise, Inc., et al., 18-1000 (La.App. 3 Cir.__ /__/__), __ So.3d__, the judgment of the trial court is affirmed in part, reversed in part, and remanded. Costs of the appeal are assessed to Michael Shelton Enterprise, Inc. and Simms Transportation, Inc.

         AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

          Conery, J., concurring in part, dissenting in part.

         I agree with the majority that the summary judgment granted in favor of Michael Shelton Enterprise, Inc. must be reversed.

         I respectfully dissent, however, from the affirmation of the summary judgment entered in favor of DOTD. Rather, I find that the presence of genuine issues of material fact requires reversal of that ruling as well.

         By its motion for summary judgment, DOTD asserts that no genuine issues of material fact exist as to its actual or constructive notice of a defective condition creating an unreasonable risk of harm as required by La.R.S. 9:2800. It is that notice "which gives rise to the obligation to take adequate measures necessary to prevent injury." Johnson v. State, Dep't of Transp. & Dev., 17-0973, p. 7 (La.App. 1 Cir. 4/3/19), __ So.3d __, __ (citing Rhodes v. State, Dep't of Transp. & Dev., 95-1848 (La. 5/21/96), 674 So.2d 239). In the event DOTD has such notice, it is required to "take reasonable measures to eliminate or reduce the risks associated with the dangerous condition or may warn the public of the danger, risk, or hazard involved." Id. at __ ...


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