JOAN BERNARD ARMSTRONG, Chief Judge.
Plaintiffs-appellants, William R. Daigre, IV, individually and as the administrator of the estates of his parents, Elveta Daigre and the tort victim, William R, Daigre, III, along with his brothers, Richard Daigre and Scott Daigre, appeal a judgment on the pleadings, dismissing with prejudice their claims against Bowie Lumber Associates, Inc. ("Bowie"), Foret Farms, Inc. ("Foret"), and Louisiana Farm Bureau Casualty Insurance Company (Foret's insurer). For the reasons that follow, we affirm the judgment of the trial court.
The litigation arises out of the untimely death of William R. Daigre, III, from a single-vehicle accident in which his tractor-trailer left the road on a rural highway and rolled down a steep incline. The plaintiffs allege that the defendants were responsible for the hazard created by the steep incline either by having conducted farming operations within the highway right of way next to the shoulder of the road or by having allowed or failed to prevent the hazard created by the farming operations, depending on the different responsibilities of the different defendants. The plaintiffs allege that the farming operations cut away the "foreslope" adjacent to the shoulder, transforming what was and what was supposed to be a "shallow uniform downgrade" into a "drastic drop off," which caused the decedent's tragic death.
The original petition filed on March 4, 2004, by the plaintiffs Elveta Daigre, individually and as the administratrix of the estate of her late husband, William R. Daigre, III, along with her sons, William R. Daigre, IV, Richard Daigre and Scott Daigre, named as defendants International Truck Engine Corporation ("International"), Fort Worth Fabrication, Inc. ("Fort Worth"), the Louisiana Department of Transportation and Development ("DOTD") and Bowie.
On October 12, 2006, the plaintiffs filed a motion to dismiss their claims against International on the basis of a settlement with that defendant, pursuant to which the trial court signed an order of dismissal with prejudice on October 17, 2006. The terms of this settlement are not part of the record.
In their Second Amended and Supplemental Petition, filed on March 3, 2007, the plaintiffs named as additional defendants, Foret and Louisiana Farm Bureau Casualty Insurance Company as Foret's liability insurer.
On April 25, 2007, the plaintiffs filed a motion of partial dismissal to dismiss their claims against Fort Worth on the basis of a settlement with that defendant, pursuant to which the trial court signed an order of dismissal with prejudice on May 7, 2007. The terms of this settlement are not part of the record.
On November 16, 2009, the trial court signed a consent judgment confirming a settlement between the plaintiffs and the DOTD in the sum of $450,000.
Bowie owned the land where the accident occurred. It had granted a right of way to the State of Louisiana for the construction of La. Hwy. 307 and had further granted a sugar cane farming lease for the adjoining land to Raceland Raw Sugar ("Raceland") which in turn subleased the land to Foret. Under the terms of the sublease, Foret agreed to assume the Raceland lease terms and further agreed to defend Bowie from third-party claims.
Accordingly, Bowie filed a third-party demand against Foret. When Foret's insurer, Louisiana Farm Bureau Casualty Insurance Company, finally agreed to assume the defense of Bowie, Bowie dismissed its third-party demand against Foret.
Bowie, as owner, and Foret, as lessee, pled the applicability of La. R.S. 9:2800.4, which provides immunity to owners and lessees of forest or farm land from damage claims asserted by those not lawfully on the property, with the exception of damage caused by the intentional acts or gross negligence of the owner or lessee.
The defendants moved for judgment on the pleadings. On 25 February 2010, Judge James Williams, sitting pro tempore, granted the defendants judgment on the pleadings, subject to plaintiffs' right to amend within ten days to allege the inapplicability of the statutory immunity. The plaintiffs filed a third and a fourth supplemental and amending petitions, alleging facts that they contend deprive the defendants of the immunity provided by La. R.S. 9:2800.4.
Thereafter, Bowie and Foret renewed their Motion for Judgment on the Pleadings and also filed a Peremptory Exception of Res Judicata, contending that the applicability of La. R.S. 9:2800.4 had already been adjudicated and/or was the law of the case.
On June 21, 2010, Judge Paulette Irons granted the defendants' motion for judgment on the pleadings, but denied their peremptory exception of res judicata, and dismissed the plaintiff's claims against the appellants with prejudice.
The parties have not disputed these facts for purposes of the review of the Judgment on the Pleadings. Therefore, we will proceed based upon these facts.
The case boils down to three key issues: (1) Did the district court err in concluding that the place where the accident occurred was farmland within the intendment of La. R.S. 9:2800.4? (2) Did the district court err, based on the record before it, pursuant to a motion for judgment on the pleadings, in concluding that the decedent was not "lawfully" on the property owned or leased by the defendants within the intendment of La. R.S. 9:2800.4? (3) Did the district court err in concluding that the decedent was not injured as a result of an "intentional act" or the "gross negligence" of the owners/lessees within the intendment of La. R.S. 9:2800.4?
La. C.C.P. art. 965, which provides for the motion for judgment on the pleadings, states in pertinent part that:
In considering a motion for judgment on the pleadings, nothing beyond the pleadings may be considered; supporting evidence may not be considered. Gibbens v. Wendy's Foods, Inc., 31,487, pp. 3-4 (La.App. 2 Cir. 1/20/99), 729 So.2d 629, 631-632, citing, inter alia, this Court's opinion in Thomas v. Allstate Ins. Co., 367 So.2d 1300, 1301 (La.App. 4th Cir.1979). A motion for judgment on the pleadings neither requires nor permits supporting affidavits, and on such a motion a trial court is not at liberty to consider any matter not within the pleadings. Hygrade Inv., Inc. v. Leonard, 197 So.2d 702, 704 (La.App. 4 Cir.1967).
In the Memorandum filed by the plaintiffs in opposition to the defendants' first motion for judgment on the pleadings, the plaintiff did not object to the consideration of matters beyond the face of the pleadings. In fact, the plaintiffs quoted extensively from the deposition of Rodney Foret, in which he appeared as Foret's corporate representative.
Nor did the plaintiffs object to the consideration of matters beyond the face of the pleadings in their Supplemental Memorandum filed in opposition to the defendants' motion for judgment on the pleadings.
However, in the final Memorandum filed by the plaintiffs in opposition to the defendants' second motion for judgment on the pleadings, the plaintiffs specifically argued that the pleadings govern and the allegations in the plaintiffs pleadings must be taken as true, citing La. C.C.P. art. 965
The district judge in her written reasons for judgment found that while res judicata did not apply, the law of the case doctrine did. The district judge concluded that:
The first judgment on the pleadings which led to the plaintiffs' Third and Fourth Supplemental and Amended Petitions, by relying on La. R.S. 9:2800.4, in effect, determined that when the decedent left the roadway and entered upon the property being farmed by Foret, he entered upon the land "unlawfully" as the law requires him to drive upon the roadway. This interpretation of the first judgment on the pleadings is borne out by the transcript of the January 15, 2010 hearing in the district court which resulted in the first judgment on the pleadings, more particularly the following exchange between Mr. Andrew Plauche, defense counsel, and the district judge:
Based on the foregoing exchange between defense counsel and the district judge, it is clear that the district judge was granting the plaintiffs leave to amend in order to permit them to allege facts showing that the defendants were guilty of either an intentional act or gross negligence. However, this was based on the dual determination by the district judge that the location where the accident occurred was "farmland" and that the decedent was not "lawfully" on that land at the time the accident occurred.
The essence of the district judge's reasoning in reaching the conclusion that the decedent was not lawfully on the land is to be found in the following rhetorical question the district judge asked of defense counsel:
In reaching this conclusion, the reasons for judgment refer to Capone v. Ormet, 01-0060 (La.App. 1 Cir. 6/21/02), 822 So.2d 684. In Capone the court noted that:
Id., 01-0060, p. 10, 822 So.2d at 692.
The plaintiffs contend that the trial court erred in placing the burden of proof
In paragraph "II" of the plaintiffs' Third Amended and Supplemental Petition, the plaintiffs allege that:
The plaintiffs went on to allege that the defendants "intentionally usurped a portion of the foreslope and shoulder area of Hwy. 307 in order to increase their available farming acreage for the purpose of generating additional income."
The plaintiffs further alleged that the action of the defendants in usurping the foreslope was done "without any effort being made to determine if such actions would destroy the highway's design features for errant motorists who momentarily leave the roadway." This was followed by an allegation that because these actions were done by the defendants in order to increase profits and without determining if the safety of the motoring public would be impacted that it constituted "intentional acts" or "gross negligence."
In the plaintiffs' Fourth Amended and Supplemental Petition, the plaintiffs alleged that the highway right of way granted by Bowie was for an unrestricted 60foot right of way, 30 feet on either side of the center line, with the intention "to allow DOTD the ability to construct, service, repair, and maintain both the main roadway and the shoulder and foreslope regions of the highway structure, out to a point 30 feet from the center of the centerline of the Highway."
The plaintiffs alleged that the defendants intentionally "usurped" this right of way for farming purposes "without any effort made to determine if such farming actions would adversely impact the highway's design and safety features for errant motorists who momentarily leave the roadway."
While admitting that the decedent left the roadway, the plaintiffs alleged that such a "momentary and inadvertent movement. . . was not an unlawful act as that term is defined in La. R.S. 9:2800.4."
This last allegation is one of the key issues in the case. The plaintiffs admit that the decedent was driving off the roadway when the accident occurred. From this admission, the district court, in essence, went on to conclude that as a matter of law that the decedent was not lawfully on the defendants' land and that the fatal accident was not the result of either the intentional act or the gross negligence of the defendants. It was within the province of the district court to determine, pursuant to the motion for judgment on the pleadings whether, as a matter of law, the decedent was not lawfully where the accident occurred within the intendment of La. R.S. 9:2800.4. As a conclusion of law, such a finding would be subject to de novo review by this Court.
The question of whether the acts of the defendants could be characterized as "intentional
While La. C.C.P. art. 965 requires that "all allegations of fact in the adverse party's pleadings shall be considered true," this does not mean that it is sufficient to merely make the conclusory allegations that the acts of a defendant were either "intentional" or grossly negligent.
Here we have to determine whether there was sufficient information in the record that would be available for consideration by the district court under the procedural limitations of a motion for judgment on the pleadings, such that the trial court could reasonably have concluded that the actions of the defendants were neither intentional nor grossly negligent.
La. R.S. 9:2800.4 does not define intentional act. The plaintiff argues that when the defendants made the decision to conduct farming operations in the area of the foreslope, their conscious and knowing decision to do so constitutes an intentional act.
The trial court opted to adopt the analysis of the meaning of intentional act as found in Ables v. Minvielle, 09-364 (La.App. 3 Cir. 10/7/09), 22 So.3d 1129, which in turn adopted the definition enunciated by the Louisiana Supreme Court in a worker's compensation context in White v. Monsanto Company, 585 So.2d 1205 (La.1991):
Id. at p. 1208.
This analysis/definition of intentional act was also quoted and followed by the Louisiana Supreme Court (again in a worker's compensation context) in Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208. Reeves is instructive in that it was a case wherein an employee was directed by his supervisor to move a piece of heavy equipment manually that should have been moved by a forklift according to OSHA standards, resulting in injury to the employee. The piece of equipment was required by OSHA to bear a sticker saying: "DO NOT MOVE MANUALLY." The supervisor testified that he had requested a forklift, but one was not made available on the day of the injury. He also testified that he feared that the manual moving of the equipment would eventually result in someone being injured. Thus, the injury to the employee was the foreseeable consequence of the violation of
Id., 1998-1795, pp. 6-10, 731 So.2d at pp. 211-213.
In applying this concept of "intentional act" to the pleadings in this case, the trial court employed the following reasoning:
The district court found that the first judgment on the pleadings rendered by the district court held that La. R.S.9:2800.4 applied and that the decedent was not lawfully on the defendants' property. We interpret this to mean that the property where the accident occurred should be considered farm land, i.e., the type of land to which La. R.S. 9:2800.4 applies. We further interpret the district court's reasons for judgment in connection with the second judgment as finding that the decedent was not lawfully on the defendants' farm land at the time of the fatal accident. The district court also found these two findings to be law of the case and, therefore, controlling at the time it rendered its second judgment on the pleadings. Therefore, the only issue remaining at the time of the rendering of the second judgment on the pleadings was whether the decedent had been injured by either the intentional act of the defendants or by the gross negligence of the defendants. In its written reasons for judgment in connection with the second judgment on the pleadings, the district court found that when the plaintiffs were granted leave to amend, it was for the limited purpose of alleging sufficient facts to constitute one of the two exceptions to the immunity provided by La. R.S. 9:2800.4, either gross negligence or an intentional act on the part of the defendant. The leave to amend was not granted for the purpose of, in effect, relitigating the questions of whether La. R.S. 9:2800.4 applied or whether the decedent was lawfully on the property at the time of the accident.
An excellent explanation of the law of the case doctrine is found in this Court's opinion in Bank One, Nat. Ass'n v. Velten, 04-2001, pp. 5-6 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458-59:
Id.
We find that of the many facets of the law of the case considered in Velten, supra, the two that are relevant to the instant case are: (1) Argument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or applied so mechanically as to accomplish manifest injustice; and (2) it will not be applied when the underlying, operative facts upon which the court's prior decision was based have changed.
Addressing the second factor first, we find that nothing presented by the plaintiffs in connection with their Third and Fourth Amending and Supplemental Petitions presents a change in the operative facts upon which the district court's original judgment on the pleadings was based.
Nor do we find anything about the application of the law of the case that could be characterized as manifest injustice or palpable error. It is difficult to see where there is even any "mere doubt as to the correctness of the former holding."
While the burden of proof is on the party asserting a claim of immunity, where it is uncontested that the plaintiff in this case was not where he was supposed to be, the burden shifts to him to show that he was "lawfully" where the accident occurred. Assuming for purposes of argument, that the decedent was forced off the road by the act of an oncoming vehicle that was unlawfully in his lane and assuming further for purposes of argument that this Court were to consider such a situation as having the effect of conferring upon the decedent the status of a constructive invitee such that he could be considered to be lawfully where he was at the time of the accident, then the plaintiffs could counter the defendant's claim of immunity. However, we expressly do not decide this question. Moreover, in none of the plaintiffs' petitions do they allege that the decedent was forced off the road, nor do they make any allegations that would have the equivalent legal effect. As a practical matter, in a single vehicle accident such as this, where the only witness is deceased, it is difficult to see how the plaintiffs could
In any event, regardless of what the plaintiffs might be able to prove at a trial on the merits, after filing an original petition and then amending and supplementing it four times, they have still failed to make any allegations that would justify the decedent driving his truck onto the land the defendants were farming.
Therefore, this Court concludes that the district court was correct in applying the law of the case as the questions raised by the plaintiffs in regard to the first judgment of the district court cannot be said to equal or exceed reasonable doubt as to the correctness of the first judgment; nor can it be said that the first judgment contained palpable former error; nor did the district court's reliance on the first judgment in rendering the second result in manifest injustice. Velten, supra. Moreover, as pointed out by the trial court in the written reasons for judgment in connection with the second judgment, the operative facts upon which the district court's prior decision was based did not change. Id. Therefore, we can find no error in the district court's decision to treat the decedent, based on the first judgment, as having been unlawfully present where the accident occurred, thus bringing the defendants within the ambit of the immunity afforded by La. R.S. 9:2800.4, and leaving as the only issue the question of whether the defendants fall within the exceptions to the immunity by dint of gross negligence or intentional acts—and we find no reversible error in the reasoning of the trial court in concluding that as a matter of law that the plaintiffs had, after filing an original petition and four amendments thereto, failed as a matter of law to allege facts sufficient to demonstrate a possible claim based on an intentional act or gross negligence.
For the foregoing reasons, the judgment of the trial court is affirmed.
