The issue before this Court is whether a motion for partial summary judgment should have been granted, when the opposing party has presented an affidavit of an expert forensic accident reconstructionist into the record? I submit it should not have been granted.
As such, I respectfully dissent from the majoritys opinion that Frankie Wayne Gaspard (“Gaspard”), Plaintiff in Cross-Claim and Intervenor, is entitled to partial summary judgment finding Justin Albert Opdenhoff (“Opdenhoff”) 100% liable for causing the accident in this case. In my view, the trial court erred in granting Gaspards motion for partial summary judgment.
When considering a motion for summary judgment, courts are not to evaluate the weight of the evidence, but to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764. Though the use of the summary judgment procedure is favored, “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponents favor.” Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050. See also Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 17 (La. 2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion)”.
In this case, Gaspard sought judgment declaring Opdenhoff to be 100% at fault in causing the subject accident. The defendants opposed the motion, alleging Gaspard was driving in excess of the speed limit and, thus, shares liability for causing the accident herein. The defendants offered the affidavit of an expert forensic accident reconstructionist Eric Burson (“Burson”), which was accepted into the record. Although Gaspard testified he was traveling between forty to forty-five miles per hour, Bursons calculations estimated that Gaspard was driving approximately sixty-eight miles per hour in a forty-five mile per hour speed zone when his vehicle collided with Opdenhoffs vehicle.
In concluding that Bursons opinion as to Gaspards speed does not create a genuine issue of material fact, the majority herein cites Mills v. Smith, 19-812 (La.App. 3 Cir. 4/8/20) (unpublished opinion). Clearly, I interpret Mills differently from my colleagues in the majority because, in my view, this courts holding in Mills supports a denial of summary judgment in this matter before us.
Unlike Gaspard in the present case, the plaintiff in Mills submitted with her motion for summary judgment the affidavit from an expert that established the defendants fault, and the lack of fault on the part of the plaintiff. This court found, although the defendant claimed that the plaintiff was traveling at least seventy-five miles an hour, the defendant was not established as an expert, and his opinion testimony did not constitute sufficient evidence to rebut the expert analysis performed by the plaintiffs expert.
Applied to the facts in this case, it is not Opdenhoff who has personally opined as to the speed Gaspard was traveling when the accident occurred; rather, that opinion came from a forensic accident reconstruction expert. Gaspard offered nothing more than subjective testimony that he was not speeding. Like the defendant in Mills, Gaspard is not an expert, and his opinion testimony did not constitute sufficient evidence to rebut the expert analysis performed by Burson, the defendants’ expert in this case. It should be noted Gaspard presented no expert.
For these reasons, I find genuine issues of material fact are indeed present. I believe reasonable people could disagree on the disputed question of the speed at which Gaspard was traveling when the accident occurred and whether that speed contributed to the accident and resulting damage.
For these reasons, I dissent from the majority opinion and would reverse the trial courts grant of partial summary judgment which was in favor of Plaintiff in Cross-Claim and Intervenor, Frankie Wayne Gaspard.
PERRY, Judge, dissenting.