TIMOTHY PAUL DESCANT v. LOUISIANA FARM BUREAU CASUALTY INSURANCE CO ET AL (2022)

I concur in the result reached by the majority to affirm the grant of summary judgment, although for different reasons. I do not agree with the majority's assertion that it “does not matter if Gaspard was driving forty to forty-five miles per hour (40-45 mph) or sixty-eight miles per hour (68 mph) if Opdenhoff could not see Gaspard's vehicle at all.” If there were genuine issues of fact as to whether the Gaspard vehicle was traveling at an excessive rate of speed, summary judgment would not be appropriate as more than one party can be at fault for an accident. In Dumas v. State ex rel. Dep't of Culture, Recreation & Tourism, 02-563 (La. 10/15/02), 828 So.2d 530, the supreme court recognized that courts are required to allocate fault to all actors regardless of the theory of liability applicable to each actor. Certainly, a vehicle that is traveling at an excessive rate of speed can contribute to the cause of an accident and to the severity of an accident. However, for the reasons that follow I find there was nothing in the record before us to create a genuine issue of material fact as to whether the Gaspard vehicle was speeding.

I find the last-minute expert report of the State's accident reconstructionist, Mr. Burson, was so contrary to established fact and scientifically unreliable that it does not serve to create a genuine issue of material fact as to whether Mr. Gaspard's vehicle was speeding. The uncontradicted facts in the record, established by the sworn testimony of all the parties involved in the accident, as well as the State Trooper who investigated the accident at the scene, are that Mr. Gaspard was not traveling over the speed limit. Mr. Gaspard and Mr. Descant both gave sworn testimony that the Gaspard vehicle was traveling within the posted speed limit. Mr. Opdenhoff at no time asserted that the Gaspard vehicle was speeding. The State Trooper gave sworn testimony that during his investigation of the accident site, he identified the point of impact in the roadway, then personally measured the post-collision distance the Gaspard vehicle traveled (230 feet) after impact, and determined he was not driving over the posted speed limit. Although Mr. Burson never went to the accident site and used only Google maps and photos from the accident scene, he somehow determined the Gaspard vehicle traveled 257 feet after impact rather than the 230 feet personally measured at the scene by the State Trooper. This figure allowed Mr. Burson to then conclude the Gaspard vehicle had been traveling over the posted speed limit. I cannot find such obviously questionable methodology of using an internet mapping program and photos that suggested the approximate point of impact and final resting area of the vehicle over actual measurements taken from the point of impact to the final resting area by a trained state trooper, who is an independent party, creates a genuine issue of material fact as to the issue of speeding. For that reason, I concur in the majority's affirmance of the trial court's grant of summary judgment.

COOKS, Chief Judge, Concurs.