EMMA SUSANO AND ZACHARY WILSON v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA CHARTER COMMUNICATIONS LLC AND RODNEY TOOMER JR (2025)

In this personal injury action, defendants, National Union Fire Insurance Company of Pittsburgh, PA, Charter Communications, LLC, and Rodney Toomer, Jr., appeal from a trial court judgment denying their motion for summary judgment and granting partial summary judgment in favor plaintiffs, Emma Susano and Zachary Wilson, on the issue of defendants’ liability. For the reasons that follow, we affirm in part and reverse in part. We further deny plaintiffs’ motion to dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

On February 15, 2022, Emma Susano was operating a 2022 Volkswagen Taos, in which Zachary Wilson was a guest passenger, northbound on SW Railroad Avenue in Hammond, Louisiana. While stopped at a red light at the intersection of SW Railroad Avenue and CM Fagan Drive, Susano's vehicle was struck in the rear by a vehicle owned by Charter Communications, LLC (Charter) and operated by Rodney Toomer, Jr., allegedly resulting in injuries to Susano and Wilson.

Thereafter, on July 13, 2022, Susano and Wilson filed a petition for damages, naming Toomer, Charter, and Charter's insurer, National Union Fire Insurance Company of Pittsburgh, PA (National Union), as defendants. Susano and Wilson alleged that at the time of the accident, Toomer was traveling northbound on SW Railroad Avenue, approaching vehicles stopped at the red light, and failed to stop, causing a collision with the rear of Susano's stopped vehicle. Susano and Wilson further alleged that the impact caused Susano's vehicle to move forward and impact the rear of the vehicle stopped in front of her, which was operated by Brent Hacker. On January 3, 2023, Brent Hacker also filed a petition for damages, naming Toomer, Charter, and National Union as defendants, alleging that Toomer ran into the rear of Susano's vehicle, causing a chain reaction and injury to Hacker when his stationary vehicle flipped over and came to rest upside down. The two matters were subsequently consolidated.

Prior to consolidation, defendants filed a motion for summary judgment on June 13, 2023, asserting that no genuine issues of material fact existed as to the applicability of the inevitable accident doctrine and therefore, defendants were entitled to judgment as a matter of law. Particularly, defendants asserted that no genuine issue of material fact existed because it was undisputed that Toomer suffered a stroke immediately before the accident and was unable to avoid contacting Susano's vehicle. In support of their motion, defendants attached in pertinent part, a copy of Susano and Wilson's petition for damages, the affidavit of Toomer, and the affidavit of David Tran, M.D., Toomer's primary care physician.

Following the depositions of Toomer and Officer Lauren Tillman, the investigating officer at the scene of the accident, Susano and Wilson filed a cross-motion for partial summary judgment on the issue of liability in October 2023. Susano and Wilson alleged that by rear-ending Susano's stopped vehicle, Toomer violated the statutory duty imposed on him by La. R.S. 32:81 and was presumed to be negligent. Furthermore, Susano and Wilson alleged that while defendants asserted that Toomer was not at fault because he suffered a stroke, sudden unconsciousness is an affirmative defense, different from the inevitable accident or sudden emergency doctrine, which must be specifically pled and proven by clear and convincing evidence. Susano and Wilson asserted, however, that defendants failed to plead sudden unconsciousness as an affirmative defense in their answer to the petition, and therefore waived their right to assert that defense. As such, because defendants cannot prove the defense of sudden unconsciousness by clear and convincing evidence or overcome the presumption of negligence as a following motorist, Susano and Wilson asserted that they are entitled to summary judgment as a matter of law. Susano and Wilson attached to their motion the affidavit of Susano, the deposition of Officer Tillman, defendants’ answer, and defendants’ responses to Susano and Wilson's amended and supplemental first set of requests for admissions.

In opposing defendants’ motion for summary judgment, Susano and Wilson re-asserted that defendants had waived their right to assert the sudden unconsciousness defense and therefore, no evidence or argument could be offered by defendants as to this defense and without evidence, defendants could not meet their burden of proving they were entitled to summary judgment. Additionally, Susano and Wilson asserted that there were genuine issues of material fact and several credibility issues that precluded summary judgment.

In opposing Susano and Wilson's motion for partial summary judgment, defendants alleged that the court should dismiss Susano and Wilson's motion because it was based upon a mistaken premise that Toomer lost consciousness during the accident. Defendants stated that they were not alleging that Toomer lost consciousness, and as such, the court should ignore Susano and Wilson's arguments regarding that defense, and the court should instead apply the unavoidable accident/sudden emergency doctrine. Attached in support of their opposition was an excerpt from Toomer's deposition wherein Toomer attested that he was conscious throughout the entirety of the accident but could not speak or use his legs.

Following a hearing on both motions, the trial court signed a judgment denying defendants’ motion for summary judgment and granting the motion for partial summary judgment in favor of Susano and Wilson and against defendants, finding Toomer was 100% liable and solely at fault for the February 15, 2022 accident and for all damages sustained by Susano and Wilson as a result of the accident. The trial court certified the judgment as final in accordance with La. C.C.P. art. 1915(B) after making an express determination that there was no just reason for delay. Defendants now appeal from the trial court's judgment.

APPELLATE JURISDICTION

At the outset, we note Susano and Wilson filed a motion to dismiss defendants’ appeal, asserting this court lacks jurisdiction to consider these interlocutory rulings. Under La. C.C.P. art. 966(E), “[a] summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.” A partial summary judgment may be granted on the issue of liability alone, although a genuine issue as to the amount of damages remains to be decided at a trial on the merits. Tye v. Co-Mar Offshore Operators, Inc., 95-0094, p. 5 (La. App. 1st Cir. 10/6/95), 669 So. 2d 438, 440, writ denied, 96-1051 (La. 6/7/96), 674 So. 2d 975.

A partial summary judgment rendered under La. C.C.P. art. 966(E) may be immediately appealable during ongoing litigation only if the trial court has properly designated it as a final judgment. See La. C.C.P. art. 1915(B). However, this court's jurisdiction is not determined by a trial court's certification of a partial summary judgment as final under La. C.C.P. art. 1915(B). Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 22-0738, p. 6 (La. App. 1st Cir. 12/29/22), 360 So. 3d 874, 878. When reviewing an order designating a judgment as final for appeal purposes, when accompanied by explicit reasons, the reviewing court must determine whether the trial court abused its discretion in certifying the judgment. Quality Environmental Processes, Inc. v. Energy Development Corporation, 16-0171, p. 8 (La. App. 1st Cir. 4/12/17), 218 So. 3d 1045, 1054 (citing R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La. 3/2/05), 894 So. 2d 1113, 1122). Pursuant to Messinger, the following list of non-exclusive factors are to be considered in determining whether a partial judgment should be certified as final:

(1) The relationship between the adjudicated and unadjudicated claims;

(2) The possibility that the need for review might or might not be mooted by future developments in the trial court;

(3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and

(4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Messinger, 04-1664 at p. 14, 894 So. 2d at 1122. However, in determining whether a partial judgment is a final one for the purpose of an immediate appeal, a court must always keep in mind the historic policies against piecemeal appeals. Quality Environmental Processes, Inc., 16-0171 at p. 8, 218 So. 3d at 1055. Article 1915(B) attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time when it best serves the needs of the parties. Thus, in considering whether a judgment is properly designated as a final one pursuant to Article 1915(B), a trial court must take into account judicial administrative interests as well as the equities involved. Messinger, 04-1664 at p. 13,894 So. 2d at 1122.

In the instant case, the judgment on appeal granted partial summary judgment in favor of Susano and Wilson and against defendants as to the issue of liability, and as such, was a partial judgment in accordance with La. C.C.P. art. 966(E). The trial court certified the judgment as final pursuant to La. C.C.P. art. 1915(B) and gave explicit, written reasons for its certification of the judgment. The trial court reviewed in detail each of the Messinger factors, finding the facts as applied to each factor militated in favor of certification of the judgment as final for purposes of appeal, and from our review, we do not find the trial court abused its discretion.

The denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law. However, where there are cross-motions for summary judgment raising the same issues, this court can review the denial of a summary judgment in addressing the appeal of the grant of the cross-motion for summary judgment. Poule D'Eau Properties, L.L.C. v. TLC Properties, Inc., 22-1011, p. 8 (La. App. 1st Cir. 2/24/23), 367 So. 3d 764, 770, writ denied, 23-00433 (La. 9/6/23), 369 So. 3d 1267. In the instant case, defendants appeal the granting of Susano and Wilson's cross-motion for partial summary judgment as well as the denial of defendants’ motion for summary judgment, both of which sought to determine defendants’ liability. For these reasons, we deny Susano and Wilson's motion to dismiss this appeal.

SUMMARY JUDGMENT 2

Appellate courts review the grant or denial of a motion for summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 17-1553, 17-1554, p. 9 (La. App. 1st Cir. 7/18/18), 255 So. 3d 16, 22, writ denied, 18-1397 (La. 12/3/18), 257 So. 3d 194. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3); Campbell v. Dolgencorp, LLC, 19-0036, p. 4 (La. App. 1st Cir. 1/9/20), 294 So. 3d 522, 526.

The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1); Lucas v. Maison Insurance Co., 21-1401, p. 4 (La. App. 1st Cir. 12/22/22), 358 So. 3d 76, 84. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Instead, after meeting his initial burden of showing that there are no genuine issues of material fact, the mover may point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, summary judgment shall be granted unless the adverse party can produce factual evidence sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1); Lucas, 21-1401, at pp. 4-5, 3 5 8 So. 3d at 84.

DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

On appeal, defendants assert that the trial court erred in denying their motion for summary judgment. Particularly, defendants assert that the trial court erred in finding there was a genuine issue of material fact precluding summary judgment.

In their motion, defendants asserted that the doctrine of unavoidable or inevitable accident relieves Toomer of liability for the accident because he suffered a stroke prior to the accident and was unable to avoid contacting plaintiffs’ vehicle.

The doctrine of unavoidable or inevitable accident relieves a person of liability so long as the person invoking the doctrine shows that he was in no way to blame for the accident. If the motorist has exercised ordinary care as required by law and has nevertheless inflicted injury on another, the accident is said to be inevitable, for which no liability attaches. Lowe v. Noble, L.L.C., 16-0165, p. 8 (La. App. 1st Cir. 5/9/17), 220 So. 3d 761, 766. However, the mere fact that, as to a motorist, a collision might have been inevitable or unavoidable at the time of its occurrence will not entitle that motorist to the protection of the doctrine of unavoidable accident if the situation thus brought about was the result of the motorist's own negligence. Nalle v. State Farm Fire & Casualty Company, 97-441, p. 4 (La. App. 3rd Cir. 10/8/97), 702 So. 2d 854, 857, writ denied, 97-2832 (La. 2/13/98), 706 So. 2d 994.

In support of their motion for summary judgment, defendants submitted evidence including, Susano and Wilson's petition for damages; the affidavit of Toomer; and the affidavit of David Tran, M.D. In his affidavit, Toomer stated that he was driving below the posted speed limit and was aware of his surroundings prior to the stroke, but that once the stroke took effect, he was unable to move, unable to apply his brakes, and unable to speak. This was further supported by the affidavit of Dr. Tran, who attested that the accident occurred as the active stroke began featuring loss of ability to move and as a result, inability to control the vehicle or apply the brakes. Dr. Tran further stated that Toomer did not have any medical indicators prior to this accident that a stroke was foreseeable.

In opposing defendants’ motion, Susano and Wilson asserted that what defendants were actually attempting to invoke was the sudden unconsciousness defense, not the unavoidable accident doctrine, and that this affirmative defense had been waived because it was not raised in defendants’ answer. Therefore, Susano and Wilson asserted that because this defense had been waived, no evidence or argument can be offered by defendants in connection with this defense and as such, they cannot meet their burden of proof. Furthermore, Susano and Wilson asserted that significant issues of material fact remain contested, and that there are several credibility issues regarding these material issues of fact.

In support of their opposition, Susano and Wilson submitted the affidavit of Susano, defendants’ responses to plaintiffs’ amended and supplemental first set of requests for admissions, the deposition of Officer Tillman, certified medical records from North Oaks Medical Center, and the deposition of Toomer. According to the deposition testimony of Officer Tillman, who investigated the accident at issue, Toomer was driving the posted speed limit prior to the accident and there were skid marks at the scene of the accident, which Officer Tillman determined were caused by Toomer's vehicle, and that these marks indicated that Toomer activated his brakes prior to the accident. Furthermore, Officer Tillman stated that though Toomer was not talking, he was conscious and was always upright after the accident. Officer Tillman further identified body camera footage showing a paramedic telling her that she did not believe Toomer had “anything medical going on.” Furthermore, defendants’ responses to requests for admissions acknowledge that the evidence available demonstrated that Toomer did attempt to brake before the accident, and that police body camera video showed skid marks on the roadway. The admissions also acknowledged that Toomer was suffering from a stroke prior to the accident, and that the stroke was what caused the accident. Defendants further denied knowledge that Toomer had any health condition that could lead to a stroke prior to the time of the accident. With regard to Toomer's existing medical conditions, Toomer acknowledged that he was being treated by a cardiologist prior to the accident at issue, and his medical records confirmed that Toomer had been treated for COVID two weeks prior to the accident with complications of shortness of breath. He also suffered from edema in his legs, and sleep apnea.

In its reasons for judgment, after considering the evidence offered by both parties in support of and in opposition to defendants’ motion for summary judgment, the trial court acknowledged that there are levels of consciousness and that there “could potentially be some type of mitigation” and that there “absolutely is” a genuine issue of material fact. From our de novo review of the record, we also find a genuine issue of material fact exists as to whether Toomer suffered a stroke prior to the accident that rendered him unable to respond and avoid the accident. As such, we find no error in the trial court's judgment denying defendants’ motion for summary judgment.

GRANT OF PARTIAL SUMMARY JUDGMENT AS TO LIABILITY

On appeal, defendants assert that the trial court erred in granting Susano and Wilson's cross motion for partial summary judgment. Specifically, the defendants assert the trial court erred in finding that the only applicable defense defendants could utilize was the sudden unconsciousness defense, rather than the inevitable accident or sudden emergency doctrine, especially since defendants never alleged that Toomer lost consciousness.

In their motion for partial summary judgment, Susano and Wilson alleged that by rear-ending Susano's stopped vehicle, Toomer violated the statutory duty imposed on him by La. R.S. 32:81 and was presumed to be negligent. Furthermore, Susano and Wilson alleged that while defendants asserted that Toomer was not at fault because he suffered a stroke, sudden unconsciousness is an affirmative defense, different from the inevitable accident or sudden emergency doctrine, which must be specifically pled and proven by clear and convincing evidence. Susano and Wilson asserted that defendants, however, failed to plead sudden unconsciousness as an affirmative defense in their answer to the petition, and therefore waived their right to assert that defense. As such, because defendants cannot prove the defense of sudden unconsciousness or overcome the presumption of negligence as a following motorist, Susano and Wilson asserted that they are entitled to summary judgment as a matter of law.

A legal presumption exists that a following motorist who collides into the rear end of a leading automobile is at fault. Matherne v. Lorraine, 03-2369, p. 2 (La. App. 1st Cir. 9/17/04), 888 So. 2d 244, 246. As the Louisiana Supreme Court explained in Eubanks v. Brasseal, 310 So. 2d 550, 553 (La. 1975), the burden rests upon the following motorist to exonerate himself from fault to avoid liability.

Sudden or momentary loss of consciousness while driving is a complete defense to an action based on negligence if such loss of consciousness was not foreseeable. Hardison v. Encompass Insurance, 08-0271 (La. App. 1st Cir. 10/31/08), 2008 WL 4763490, *1 (unpublished opinion). The “sudden unconsciousness” defense is an affirmative defense, which is different from the doctrine of sudden emergency or unavoidable accident, and must be specifically pled and proved by clear and convincing evidence. See Lachney v. O'Reilly Automotive Stores, Inc., 2017 WL 5178773, *3 (W.D. La. 11/6/17) (unpublished opinion). Unlike the sudden unconsciousness defense, the sudden emergency doctrine is not an affirmative defense, and therefore, need not be specifically pled in the defendant's answer. See Dupree v. Saves, 42,792, p.4 n.2 (La. App. 2nd Cir. 12/5/07), 974 So. 2d 22, 24 n.2; McMullan v. Allstate Ins. Co., 242 So. 2d 921, 924 (La. App. 1st Cir. 1970), writ denied, 244 So. 2d 859 (La. 1971).

It is undisputed that as the following motorist, Toomer is presumed to be at fault and bears the burden of proving a basis to avoid liability. According to Susano and Wilson, defendants’ only basis for avoiding liability falls within the sudden unconsciousness defense, not the unavoidable accident doctrine, and because this affirmative defense was not specifically pled, it has been waived. Louisiana law mandates that a defendant assert its affirmative defense in its answer. Amedee v. Aimbridge Hospitality, LLC, 21-01906, p. 17 (La. 10/21/22), 351 So. 3d 321, 332. The failure to set forth an affirmative defense waives those defenses and bars the introduction of evidence offered in connection with an affirmative defense. Amedee, 21-01906 at p. 17, 3 51 So. 3d at 3 3 3.

In support of their cross motion for partial summary judgment, Susano and Wilson submitted a copy of defendants’ answer, showing no allegation of the affirmative defense of sudden unconsciousness. Additionally, Susano and Wilson submitted the deposition testimony of Officer Tillman and the affidavit of Susano stating that Toomer was the following motorist and that he caused the accident by failing to stop and colliding with the rear of Susano's vehicle. As such, we find that Susano and Wilson presented evidence that Toomer was presumed at fault in causing the accident. Susano and Wilson further presented evidence that the defense of sudden unconsciousness was waived because it was not raised in defendants’ answer. The burden shifted to defendants to establish that Susano and Wilson were not entitled to judgment as a matter of law as to liability.

In opposition to Susano and Wilson's cross-motion, defendants asserted that Toomer never alleged he was unconscious, thus the applicability of the sudden unconsciousness doctrine was of no consequence. Rather, the court should apply the unavoidable accident/sudden emergency doctrine to the facts of this case. To support their opposition, defendants relied solely on excerpts of Toomer's deposition testimony wherein he stated that at the point when his vehicle impacted other vehicles, he was conscious, but could not speak and was “probably blacking out or something.” In that same excerpt, Toomer stated that although he did not brake before impact, he was conscious enough to want to “mash the brakes;” however, he was unable to apply the brakes because his legs would not work.

From our de novo review of the record, we find that the evidence presented in support of and in opposition to the cross-motion for partial summary judgment raised genuine issues of material fact as to Toomer's state and his actions prior to the accident. Although Toomer as the following motorist is presumed at fault, the evidence creates a genuine issue of material fact as to whether the alleged sudden loss of use of his legs was a circumstance over which he had no control, potentially triggering the unavoidable accident/sudden emergency doctrine. Additionally, evidence was presented of skid marks at the accident scene indicating Toomer may have applied his brakes. Accordingly, we reverse the portion of the trial court's judgment granting Susano and Wilson's partial summary judgment as to liability, and deny same.

CONCLUSION

For the foregoing reasons, we affirm the portion of the trial court's judgment denying the defendants’, National Union Fire Insurance Company of Pittsburgh, PA, Charter Communications, LLC, and Rodney Toomer, Jr., motion for summary judgment; and reverse the portion of the trial court's judgment granting plaintiffs’, Emma Susano and Zachary Wilson, cross-motion for summary judgment and deny same. Each party shall bear its own costs on appeal.

AFFIRMED IN PART; REVERSED IN PART. MOTION TO DISMISS APPEAL DENIED.

Finding that genuine issues of material fact exist relative to the defense offered by appellants, I concur in the result reached by the majority.

I disagree with the majority's opinion insofar as it reverses the partial summary judgment on the issue of liability because I do not believe that the unavoidable accident/sudden emergency doctrine is applicable to the facts of this case.

The unavoidable accident/sudden emergency doctrine is a jurisprudentially created doctrine that relieves a person of liability so long as the person invoking the doctrine shows that he was in no way to blame for the accident. If the motorist has exercised ordinary care as required by law and has nevertheless inflicted injury on another, the accident is said to be inevitable, and no liability attaches. Lowe v. Noble, L.L.C., 16-0165, p. 8 (La.App. 1 Cir. 5/9/17), 220 So.3d 761, 766. However, the mere fact that as to a motorist a collision might have been inevitable or unavoidable at the time of its occurrence will not entitle that motorist to the protection of the doctrine of unavoidable accident if the situation thus brought about was the result of the motorist's own negligence. Nalle v. State Farm Fire & Casualty Company, 97-441, p. 4 (La.App. 3 Cir. 10/8/97), 702 So.2d 854, 857, writ denied, 97-2832 (La. 2/13/98), 706 So.2d 994.

Louisiana courts have uniformly held that a following motorist in a rear-end collision is presumed to be negligent; however, this presumption of fault may be rebutted by proof that the following motorist had his vehicle under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances. A following motorist may also rebut the presumption of negligence and avoid liability by application of the unavoidable accident/sudden emergency doctrine by proving that the driver of the lead vehicle negligently created a hazard that the following motorist could not reasonably avoid. Eastman v. State Farm Mutual Automobile Insurance Co., 2023-01107, pp. 10-11 (La. 5/1/24), 3 84 So.3d 865, 873; Roberts v. Rudzis, 2013-0538, n. 4 (La.App. 1 Cir. 5/28/14), 146 So.3d 602, 608, n. 4, writ denied, 2014-1369 (La. 10/3/14), 149 So.3d 797.

The defendants urge that the presumption of negligence should be rebutted and Toomer should be absolved of liability as the following motorist in a rear-end collision because, although he was conscious, his sudden inability to move his legs to apply the brakes created a sudden emergency resulting in an unavoidable accident. However, the defendants have cited no cases, and I have found none, in which our courts have applied the unavoidable accident/sudden emergency doctrine to absolve a motorist of liability for an accident where the sudden emergency was created by the defendant's own medical condition. I decline to extend the jurisprudentially created unavoidable accident/sudden emergency doctrine further to include a situation such as this one. To rule otherwise will open the floodgates of future defendants claiming they wanted to brake but for some unknown reason their legs simply would not brake. This is a door that should not be opened.

There is no question that the defendant rear ended the plaintiff. Both are claiming to be in “good faith,” however, only the defendant lost control of his vehicle and the defendant has failed to plead “sudden unconsciousness” as an affirmative defense. Therefore, defendant is liable for the damages suffered by the plaintiff. The trial court was correct in granting plaintiff's motion for summary judgement. Accordingly, I respectfully dissent from this portion of the majority's opinion.

CALLOWAY, J.

Penzato, J. concur Theriot, J. Dissents with reasons McClendon, CJ. concurs and assigns reason