                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                               NEWS RELEASE #021


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 8th day of May, 2019, are as follows:



PER CURIAM:



2018-C-0991       ROBERT G. MURPHY AND PAMELA MURPHY v. SHAUNTAL SAVANNAH; STATE
                  FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A.K.A. STATE FARM;
                  STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND
                  DEVELOPMENT (Parish of Caddo)

                  For the reasons assigned, the judgment of the court of appeal is
                  reversed.   The judgment of the district court granting summary
                  judgment in favor of the State of Louisiana through the
                  Department of Transportation and Development and dismissing the
                  claims of Robert G. Murphy and Pamela Murphy with prejudice is
                  hereby reinstated. REVERSED.

                  JOHNSON, C.J., dissents and assigns reasons.

                  CRICHTON,   J.,   dissents   for   the   reasons   assigned   by   Justice
                  Genovese.

                  GENOVESE, J., dissents and assigns reasons.
05/08/19

                       SUPREME COURT OF LOUISIANA

                                  No. 2018-C-0991

                ROBERT G. MURPHY AND PAMELA MURPHY

                                      VERSUS

           SHAUNTAL SAVANNAH; STATE FARM MUTUAL
            AUTOMOBILE INSURANCE COMPANY, A.K.A.
         STATE FARM; STATE OF LOUISIANA, THROUGH THE
       DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                 SECOND CIRCUIT, PARISH OF CADDO


PER CURIAM

      In this case, we are called upon to decide whether the district court erred in

granting summary judgment in favor of defendant on the ground that plaintiff failed

to establish any genuine issues of material fact regarding whether the intersection at

issue was unreasonably dangerous. Finding no error in the ruling of the district court,

we now reverse the judgment of the court of appeal and reinstate the summary

judgment.



                    FACTS AND PROCEDURAL HISTORY

      Robert Murphy was operating his motorcycle on a two-lane stretch of

Louisiana Highway 538, known as Old Mooringsport Road, which runs in a north-

south direction. Mr. Murphy was proceeding on southerly direction.

      At the same time, Shauntal Savannah was driving her Nissan Maxima in the

northbound lane of Old Mooringsport Road. As Ms. Savannah approached the

intersection of Old Mooringsport Road and Ravensdale Drive, she pulled into the

southbound lane with the intent to turn onto Ravensdale Drive. As she did so, she
entered Mr. Murphy’s lane of travel. Mr. Murphy’s motorcycle struck the passenger-

side door of Ms. Savannah’s vehicle, causing injury to Mr. Murphy.

       Thereafter, Mr. Murphy and his wife (hereinafter referred to as “plaintiffs”)

filed the instant suit against the State of Louisiana through the Department of

Development and Transportation (“DOTD”).1 Plaintiffs alleged DOTD failed to warn

of a dangerous condition and failed to remedy the defective design of the intersection.

       After discovery, DOTD filed a motion for summary judgment. In support,

DOTD relied on the affidavit of Kevin Blunck, a civil engineer employed by DOTD,

who averred that at the time of the accident, DOTD did not have a record of any

repairs, maintenance, or construction projects that were being performed in the

section of Highway 538 located at or near the intersection. Mr. Blunck stated DOTD

had no record of any complaints within 180 days prior to the accident with respect to

the intersection.

       Additionally, DOTD attached Ms. Savannah’s deposition testimony. Ms.

Savannah, who was familiar with the intersection, admitted she was at fault for the

accident because she did not see Mr. Murphy’s motorcycle before making her turn.

Ms. Savannah also denied that a curve on Old Mooringsport Road prevented her from

seeing the oncoming motorcycle.

       DOTD further attached an excerpt from Mr. Murphy’s deposition. When asked

if there were any type of sight obstructions that would have kept a driver from seeing

approaching vehicles at or near the intersection, Mr. Murphy responded, "No sir. It

was wide open."




   1
     Plaintiffs also filed suit against Ms. Savannah and her insurer, State Farm Mutual Automobile
Insurance Company. Plaintiffs later settled with these defendants, leaving DOTD as the sole
defendant.

                                                2
       DOTD also relied on an affidavit from Dr. Joseph Blaschke, a civil engineer

licensed in Texas, Louisiana and Mississippi.2 Dr. Blaschke indicated he was asked

to address whether the traffic devices that were present at the time of the crash on La.

Hwy. 538 at or near its intersection with Ravendale Drive were in compliance with

the Manual on Uniform Traffic Control Devices and also whether there were

sufficient sight distances available for motorists traveling along this route to be able

to observe safely both the traffic control devices that were present and any on-coming

traffic.

       To prepare his affidavit and render an opinion, Dr. Blaschke advised he

“personally viewed and inspected the crash site on two separate occasions and the

surrounding areas of both La. Hwy. 538 (a/k/a Old Mooringsport Road) and

Ravendale Drive in Shreveport, Caddo Parish, Louisiana.” Dr. Blaschke conducted

lines-of-sight and time/distance evaluations (relative to available sight distances) for

motorists operating vehicles in the vicinity of the intersection at issue and reviewed

multiple pleadings, depositions, reports, and demonstrative evidence in connection

with his investigation. Based on this review, he stated:

               My review of the records mentioned and my evaluation of
               both roadways revealed that at the time of the crash, there
               were no roadway abnormalities or design deficiencies on
               Louisiana Highway 538, at or near its intersection with
               Ravendale Drive, that would be considered in violation of
               or inconsistent with any roadway design standards or
               guidelines at the time of original construction. There were
               sufficient lines-of-sight (or sight distances) available for
               both drivers to observe the various traffic control devices
               that were in place along their respective travel routes.
               There also was sufficient stopping sight distances available
               for both drivers to observe the approaching intersection,
               see any vehicle present at or approaching the intersection,
               and negotiate the intersection safely.


  2
     The affidavit indicates Dr. Blaschke received his Bachelor of Science in civil engineering from
Texas A&M University in 1971; an M.E. in civil engineering from Texas A&M University in 1972;
and a Doctor of Engineering, from Texas A&M University in 1983.

                                                 3
         Finally, Dr. Blaschke concluded the area of roadway at issue that was being

traveled upon by plaintiff was not unreasonably dangerous. He explained that all the

physical evidence as well as the testimony of the two drivers revealed the sole cause

of the crash was Ms. Savannah’s failure to yield the right-of-way to the on-coming

motorcycle driven by Robert Murphy. Both drivers testified there were no sight

distance restrictions relative to the geometry of the roadway that prohibited either

driver from seeing the other respective vehicle prior to the crash. Additionally, he

noted Ms. Savannah clearly testified that she was “at fault” and her actions were the

cause of the crash.

         In opposition to DOTD’s motion, plaintiffs relied on the affidavit of V.O.

Tekell, Jr., a traffic operations engineer. Mr. Tekell’s affidavit indicated he received

his Bachelor of Science in civil engineering from the University of Louisiana at

Lafayette in 1980. His post-graduate training includes traffic institute courses and

federal highway administration courses.

         To prepare his affidavit and render an opinion, Mr. Tekell reviewed multiple

pleadings, depositions, accident reports, excerpts from the American Association of

State Highway Officials (“AASHO”) publications, and certain DOTD daily work

reports.3

         Mr. Tekell stated that in a 1940 publication, AASHO opined that regardless of

the type of intersection, for safety and economy, intersecting roads should meet at or

nearly at right angles. Mr. Tekell notes the AASHO made repeat affirmations in

1965, 1973, 1984, 1990, 2001, 2004, and 2011. According to Mr. Tekell, based on

     3
        Attached to Mr. Tekell’s affidavit were various documents, including excerpts from the
AASHO standards. DOTD filed a motion to strike all the attachments (other than Mr. Tekell’s
curriculum vitae), arguing the documents were not properly authenticated and did not fall within the
category of documents authorized under the Code of Civil Procedure to be filed in opposition to a
motion for summary judgment. The district court granted the motion to strike, and the court of
appeal affirmed this portion of the district court’s ruling. Plaintiffs did not seek review in this court;
therefore, the ruling on the motion to strike is final.

                                                    4
his review of a 2012 aerial photo of the intersection at issue and the AASHO

guidelines, it was his opinion the “Y” intersection at issue was constructed at an acute

angle of less than twenty degrees. Mr. Tekell further states that “while it is not yet

known when this particular intersection was constructed there has been over ½

century of notice that the design is flawed and accident prone.” Finally, Mr. Tekell

concluded the layout of the intersection was a “contributing factor” to the crash at

issue.

         After a hearing, the district court granted DOTD’s motion for summary

judgment, finding there were no genuine issues of material fact in dispute. In oral

reason for judgment, the district court stated:

              The problem is, [Mr. Tekell] does not say in his affidavit
              that this, the design of this intersection is unreasonably
              dangerous. It would certainly seem to me that a civil
              engineer of his experience would know in order to defeat
              a motion for summary judgment he needs to say it’s
              unreasonably dangerous if that’s his opinion, and he does
              not say that in his affidavit. It’s conspicuously absent from
              his affidavit. . . .

                                           ***
              However, I do agree with defense counsel in this case. We
              have a situation where he has an engineer who has looked
              at the site personally on two occasions, he has reviewed the
              pleadings, and states in his affidavit, quote, further, all
              physical evidence and testimony of the two drivers reveals
              that the sole cause of the crash at issue was Ms. Savannah’s
              failure to yield the right-of-way to the Murphy motorcycle.
              Both drivers testified that there were no sight distance
              restrictions relative to the geometry of the roadway that
              prohibited either driver from seeing the other vehicle prior
              to the crash. In addition, Ms. Savannah clearly testified
              that she was at fault, and her actions were the cause of the
              crash.

              Mr. Tekell, on the other hand, did not personally view the
              accident site, and as I’ve pointed out, I’ve read through his
              affidavit, and he does not testify in his affidavit that the
              design of the intersection was unreasonably dangerous.
              The closest he comes is that, quote, the layout of the
              intersection was a contributing factor to the crash that

                                           5
              occurred on December 5, 2012. That does not - - that falls
              far short of rendering an opinion that the design of the
              intersection was unreasonably dangerous. As pointed out
              by counsel for DOTD, the recommendations cited by
              plaintiffs are just that, recommendations, but they are not
              mandatory.

       Therefore, the district court granted summary judgment in favor of DOTD

finding “no genuine issue of material fact present in this case.” In doing so, the court

explained “plaintiff’s expert does not render an opinion that the intersection was

unreasonably dangerous, only that it may have been a contributing factor to the

accident.”

       Plaintiffs appealed. The court of appeal reversed, finding “that genuine issues

of material fact exist as to whether the design of the intersection is unreasonably

dangerous, whether DOTD had notice of the hazard and whether the intersection

design was a cause of the damages. Murphy v. Savannah, 51,906 (La. App. 2 Cir.

4/11/18), 246 So.3d 785, 795.

       Upon DOTD’s application, we granted certiorari to consider the correctness of

this decision. Murphy v. Savannah, 18-0991 (La. 12/3/18), ___ So.3d ___.



                                     DISCUSSION

       A motion for summary judgment is a procedural device used when there is no

genuine issue of material fact for all or part of the relief prayed for by a litigant. Beer

Indus. League of Louisiana v. City of New Orleans, 2018-0280 (La. 6/27/18), 251 So.

3d 380, 385–86; Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544,

546. The summary judgment procedure is designed to secure the just, speedy and

inexpensive determination of civil actions (with the exception of certain domestic

matters) and is favored in our law. La. Code Civ. P. art, 966(A)(2); Kennedy v.

Sheriff of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So.2d 669, 686.

                                            6
      A summary judgment is reviewed on appeal de novo, with the appellate court

using the same criteria that govern the trial court’s determination of whether summary

judgment is appropriate; i.e., whether there is any genuine issue of material fact, and

whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana

Power & Light, 06-1181 (La. 3/9/07), 951 So.2d 1058, 1070. A court must grant a

motion for summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to material fact, and that mover is entitled to judgment as

a matter of law.” La. Code Civ. P. art. 966(B); Kennedy, 935 So.2d at 686.

      On a motion for summary judgment, the burden of proof remains with the

movant. However, if the moving party will not bear the burden of proof on the issue

at trial and points out that there is an absence of factual support for one or more

elements essential to the adverse party's claim, action, or defense, then the

non-moving party must produce factual support sufficient to establish that he will be

able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion

fails to do so, there is no genuine issue of material fact and summary judgment will

be granted. La. Code Civ. P. art. 966(D)(2); Bufkin v. Felipe's Louisiana, LLC,

2014-0288 (La. 10/15/14), 171 So.3d 851, 854; Schultz v. Guoth, 10–0343

(La.1/19/11), 57 So.3d 1002, 1006.

      In the instant case, DOTD will not bear the burden of proof at trial. Therefore,

as the party moving for summary judgment, DOTD’s burden is to show an absence

of factual support for one or more elements essential to plaintiffs’ claim.

      In order for plaintiffs to prevail in their claim against DOTD, they must prove:

(1) DOTD had custody of the thing which caused plaintiffs' damages, (2) the thing

was defective because it had a condition which created an unreasonable risk of harm,


                                           7
(3) DOTD had actual or constructive notice of the defect and failed to take corrective

measures within a reasonable time, and (4) the defect was a cause-in-fact of plaintiffs'

injuries. Cormier v. Comeaux, 98-2378 (La. 7/7/99), 748 So.2d 1123, 1127.

      The main focus of DOTD’s motion for summary judgment was on plaintiffs’

inability to establish the design of the intersection created an unreasonable risk of

harm. In support of its position, DOTD relied on the expert affidavit of Dr. Blaschke,

who opined that at the time of the accident, there were “no roadway abnormalities or

design deficiencies on Louisiana Highway 538, at or near its intersection with

Ravendale Drive, that would be considered in violation of or inconsistent with any

roadway design standards or guidelines at the time of original construction.” Dr.

Blaschke further explained that there were “sufficient lines-of-sight (or sight

distances) available for both drivers to observe the various traffic control devices that

were in place along their respective travel routes.” This assertion was corroborated

by Ms. Savannah, who expressly denied that the curve on Old Mooringsport Road

prevented her from seeing the oncoming motorcycle. Similarly, Mr. Murphy testified

in his deposition that the intersection was “wide open” with respect to visibility.

      Considering this evidence, we find DOTD satisfied its initial burden of

establishing a lack of factual support for essential elements of plaintiffs’ claim.

Therefore, the burden shifted to plaintiffs to establish that they can satisfy their

burden of proof at trial.

      Plaintiffs’ opposition relies on the affidavit of Mr. Tekell. Mr. Tekell cited the

AASHO standards for the proposition that for reasons of safety and economy,

intersecting roads “should” meet at or nearly at right angles. According to Mr.

Tekell’s affidavit, the intersection at issue was constructed at an acute angle of less

than twenty degrees. He opined that such a design is “flawed and accident prone,”


                                           8
and he concluded the layout of the intersection was a “contributing factor” to the

crash at issue.

       Unlike Dr. Blaschke’s affidavit, Mr. Tekell’s affidavit is devoid of any factual

support for his conclusion that the design of this particular intersection was a

contributing fact to the accident. At most, he suggests the intersection does not

satisfy the general requirements of the 1940 AASHO guidelines that intersection

roads, for reasons of “safety and economy,” should meet at or nearly at right angles.

However, he does not indicate that this requirement is mandatory, nor does he

expressly contradict Dr. Blaschke’s opinion that the intersection was not in violation

of or inconsistent with any roadway design standards or guidelines at the time of

original construction. Indeed, Mr. Tekell’s affidavit acknowledges he was not aware

of when this particular intersection was constructed. Therefore, rather than refuting

Dr. Blaschke’s opinion on the compliance of the intersection with applicable

guidelines, Mr. Tekell’s affidavit expressly leaves open the question of whether the

intersection predated the 1940 AASHO guidelines he references.4

       Most significantly, Mr. Tekell’s affidavit sets forth no factual support for his

conclusion that the design of the intersection contributed to this particular accident.

Even assuming, arguendo, that the intersection was not in compliance with the

aspirational direction set forth in the AASHTO guidelines, Mr. Tekell does not refute

Dr. Blaschke’s opinion (which was based on Dr. Blaschke’s personal examination of

the intersection) that there were sufficient lines-of-sight for both drivers to observe

the traffic control devices that were in place. Moreover, he does not discuss the



   4
      We have explained that DOTD “has no duty to bring old highways up to modern AASHTO
standards, unless a new construction or major reconstruction of the highway had taken place.”
Toston v. Pardon, 2003-1747 (La. 4/23/04), 874 So.2d 791, 799. Mr. Tekell’s affidavit is devoid
of facts as to which standards were in place at the time the intersection was constructed, nor does he
explain whether new construction or major reconstruction of the intersection took place.

                                                  9
statements of both drivers who testified that the design of the intersection did not

create any visual obstructions.

      An affidavit which is devoid of specific facts and based on conclusory

allegations is not sufficient to defeat summary judgment. La. Code Civ. P. art.

967(B); Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 2009-1633 (La.

4/23/10), 35 So.3d 1053, 1062. Mr. Tekell’s conclusory statement that the design of

the intersection was “flawed” and was a contributing factor of this accident is devoid

of any factual foundation and is therefore insufficient to defeat DOTD’s properly-

supported motion for summary judgment.

      Under these circumstances, we find the court of appeal erred in reversing the

judgment of the district court granting summary judgment in favor of DOTD. The

judgment of the district court is correct and must be reinstated.



                                     DECREE

      For the reasons assigned, the judgment of the court of appeal is reversed. The

judgment of the district court granting summary judgment in favor of the State of

Louisiana through the Department of Transportation and Development and

dismissing the claims of Robert G. Murphy and Pamela Murphy with prejudice is

hereby reinstated.




                                         10
05/08/19


                     SUPREME COURT OF LOUISIANA
                                 NO. 2018-C-0991
              ROBERT G. MURPHY AND PAMELA MURPHY
                                     VERSUS
             SHAUNTAL SAVANNAH; STATE FARM MUTUAL
            AUTO INSURANCE COMPANY, A.K.A. STATE FARM;
           STATE OF LOUISIANA, THROUGH THE DEPARTMENT
               OF TRANSPORTATION AND DEVELOPMENT

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
              SECOND CIRCUIT, PARISH OF CADDO

JOHNSON, CHIEF JUSTICE, dissents and assigns reasons:

      I find the court of appeal correctly reversed the district court’s judgment

granting DOTD’s motion for summary judgment. Thus, I respectfully dissent and

would affirm the ruling of the court of appeal.

      In order for the DOTD to be held liable, the plaintiffs have to prove that (1)

the DOTD had custody of the thing which caused plaintiffs’ damages, (2) the thing

was defective because it had a condition which created an unreasonable risk of harm,

(3) the DOTD had actual or constructive notice of the defect and failed to take

corrective measures within a reasonable time, and (4) the defect was a cause-in-fact

of plaintiffs’ injuries. Cormier v. Comeaux, 98-2378 (La. 7/7/99), 748 So. 2d 1123,

1127 (citing Brown v. Louisiana Indem. Co., 97–1344 (La. 3/4/98), 707 So. 2d 1240;

Lee v. State Through Dept. of Transp. and Development, 97–0350 (La. 10/21/97),

701 So. 2d 676). In this case, the DOTD moved for summary judgment, arguing

plaintiffs could not establish the design of the intersection created an unreasonable

risk of harm. Although DOTD’s expert submitted an affidavit opining that the

intersection was not in violation of or inconsistent with any roadway design

standards or guidelines at the time of original construction and was not unreasonably

dangerous, plaintiffs’ expert, V.O. Tekell, Jr., submitted an opposing affidavit. Mr.
Tekell, a traffic operations engineer, submitted an affidavit opining that the layout

of the intersection was a contributing factor in causing the accident. Mr. Tekell

characterized the intersection as a “Y” intersection with an extremely acute angle of

less than 20 degrees. He stated that according to AASHO: (i) it is desirable that

intersecting roads meet at right angles for economy and for safety; (ii) acute angle

intersections increase the exposure time of vehicles crossing the main traffic flow;

and (iii) acute angle intersections are particularly susceptible to left-turning crashes.

Mr. Tekell added that there had been over 50 years of notice that this design is flawed

and accident prone.

      As this court has explained:

      In ruling on a motion for summary judgment, the judge’s role is not to
      evaluate the weight of the evidence or to determine the truth of the
      matter, but instead to determine whether there is a genuine issue of
      triable fact. All doubts should be resolved in the non-moving party’s
      favor. A fact is material if it potentially ensures or precludes recovery,
      affects a litigant’s ultimate success, or determines the outcome of the
      legal dispute. A genuine issue is one as to which reasonable persons
      could disagree; if reasonable persons could reach only one conclusion,
      there is no need for a trial on that issue and summary judgment is
      appropriate. (Internal citations removed).

Maggio v. Parker, 17-1112 (La. 6/27/18), 250 So. 3d 874, 878; Larson v. XYZ Ins.

Co., 16-0745 (La. 5/3/17), 226 So. 3d 412, 416. In my view, the majority of this

court errs in weighing and evaluating the competing experts’ affidavits to justify

reinstating the summary judgment. It is clear a fact finder could reasonably draw an

inference that the intersection was unreasonably dangerous based on Mr. Tekell’s

opinion. Thus, plaintiffs’ submitted sufficient evidence to defeat the DOTD’s motion

for summary judgment.

      I would find an issue of material fact exists regarding whether the intersection

at issue was unreasonable dangerous and affirm the ruling of the court of appeal.




                                           2
05/08/19



                    SUPREME COURT OF LOUISIANA

                               No. 2018-C-991

             ROBERT G. MURPHY AND PAMELA MURPHY

                                  VERSUS

   SHAUNTAL SAVANNAH; STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, A.K.A. STATE FARM; STATE OF LOUISIANA,
    THROUGH THE DEPARTMENT OF TRANSPORTATION AND
                    DEVELOPMENT

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             SECOND CIRCUIT, PARISH OF CADDO




CRICHTON, J., dissents for the reasons assigned by Justice Genovese.




                                      1
05/08/19


                      SUPREME COURT OF LOUISIANA
                                   No. 2018-C-991
               ROBERT G. MURPHY AND PAMELA MURPHY
                                      VERSUS
   SHAUNTAL SAVANNAH; STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, A.K.A. STATE FARM; STATE OF LOUISIANA,
    THROUGH THE DEPARTMENT OF TRANSPORTATION AND
                    DEVELOPMENT

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
              SECOND CIRCUIT, PARISH OF CADDO


Genovese, J., dissents and assigns the following reasons:

      The posture of this case is a summary judgment proceeding. In a summary

judgment proceeding, where each side presents an expert with opposing views of the

evidence, specifically as to whether an intersection is unreasonably dangerous, the

case is not ripe for a summary judgment disposition.

      In this case, involving a “Y” intersectional collision between a car and a

motorcycle, defendant/state’s expert opined that the intersection was not

unreasonably dangerous; whereas, plaintiffs’ expert opined that the layout of the “Y”

intersection was a contributing factor in causing the accident. Plaintiffs’ expert

relied upon and quotes the 1940 American Association of State Highway Officials

(AASHO) publication which stated that such intersections “at any but slow speeds[,]

these nearly head-on crossings at a small angle are dangerous.” Plaintiffs’ expert

notes that for over seventy years, AASHO has cautioned state officials that acute

angle intersections, like the one at issue herein, are particularly susceptible to left-

turning crashes similar to the one in this case and that the defendant/state had over

fifty years of notice that the design was flawed and accident-prone. Nevertheless,

the trial court granted the defendant/state’s motion for summary judgment.
        The court of appeal reversed, finding genuine issues of material fact as to

whether the intersection presented an unreasonable risk of harm. In my view, the

court of appeal got it right. There are genuine issues of material fact as to whether

this “Y” intersection is unreasonably dangerous or presents an unreasonable risk of

harm. The question is not whose dog is bigger or better. The question is which

expert will convince the trier of fact at trial on the merits as to his/her opinion in this

case.

        The trial judge cannot judge the facts or weigh the evidence in a summary

judgment proceeding ─ that is for the trier of fact. Even though the motorist who

struck plaintiff admitted her fault, that does not mean there was only one tortfeasor

or one cause of the accident in question. There is certainly the potential for

comparative fault of others; and, any degree of comparative fault will defeat a

motion for summary judgment. A finding of comparative fault requires a weighing

of evidence, which the trial court is not allowed to do in a summary judgment

proceeding ─ that is left to the trier of fact.

        Should there be any issue as to the qualifications of the expert or his/her

opinion in a summary judgment proceeding, that issue is to be flushed out and

decided in advance via Daubert/Foret motion in limine. Such is not the case here.

The experts in this case, and their opinions, were received by the trial court without

objection in a summary judgment proceeding; and, when there are competing experts

with contradictory opinions as to material facts, there are questions of material fact

which defeat summary judgment. The trial judge is not allowed to weigh the

evidence presented by the competing experts or weigh their credibility.

        We must be careful to strictly follow the rules pertaining to summary

judgment proceedings. Today’s summary judgment is tantamount to a third type of

trial. It is a trial by affidavit, wherein a litigant is denied two inherent and

fundamental rights ─ the right to a day in court and a right to trial by jury. In this



                                             2
case, plaintiffs’ claim against the defendant/state was dismissed when the trial court

weighed evidence by choosing one expert opinion over another, contrary to the law

and jurisprudence pertaining to summary judgment proceedings.

         I would affirm the court of appeal judgment and allow plaintiffs their day in

court.




                                           3
