text:
    STATE of Louisiana, THROUGH its DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. TAIRA LYNN MARINE LIMITED NO 7, L.L.C., D & S Marine Service, L.L.C., and John Doe
    NO. 17-CA-582
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, THROUGH ITS DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Jose' R. Cot, Robert K. Denny
    COUNSEL FOR DEFENDANT/APPELLANT, TAIRA LYNN MARINE LIMITED NO 7, L.L.C., D & S MARINE SERVICE, L.L.C., Wayne G. Zeringue, Jr., Jefferson R. Tillery, Christopher K. Ulfers
    Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

The issue presented for our review in this matter relates to the proper method of calculating depreciation for purposes of awarding compensatory damages in a case involving an allision of a towboat and barges with a fender of the Sunshine Bridge. For reasons that follow, we affirm.

The parties stipulated to the facts, liability and cost of repairs before trial. According to the joint stipulation, on April 11, 2008, the M/V RICKY J. LEBOUEF, owned by Taira Lynn Marine Limited No. 7, L.L.C. (Taira Lynn), and operated by D & S Marine Services, L.L.C. (D & S), allided with the Sunshine Bridge Pier No. 4 fender system. At the time of the allision, the M/V RICKY J. LEBOUEF was towing two barges. River currents caused the tow to allide with the downstream fender of the Sunshine Bridge, causing extensive damage and requiring an expenditure of $1,569,544.75 for repairs. Both Taira Lynn and D & S stipulated to liability for the allision, but reserved their right to litigate all aspects of damage claims.

The State of Louisiana, through its Department of Transportation and Development (DOTD), filed suit against Taira Lynn and D & S to recover the cost of repairs to the bridge. As a result of the joint stipulation, the only remaining issues before the trial court at the trial on the merits concerned:

1.) whether the claims of the DOTD are subject to a reduction for depreciation, and if so, the appropriate rate of depreciation;
2.) whether the value engineering proposal to replace the timber Pier No. 4 fender system with a timber and steel fender system was properly accepted, and if so whether Taira Lynn is entitled to any credit for the savings realized pursuant to the value engineering proposal;
3.) Whether Taira Lynn is entitled to a credit for the bid bond forfeited by Johnson Bros. Construction when it withdrew its successful bid for State Project No. H. 002926.6.

After a trial on the merits, the trial court rendered judgment decreeing that the DOTD was entitled to a recovery of $720,696.58 plus judicial interest pursuant to La. R.S. 13:4203 . The trial court issued written reasons for judgment in which it detailed the reasoning for the reduced award. Specifically, the court made a determination that a 50% depreciation rate was appropriate, and that defendants were entitled to a bid bond credit in the amount of $64,075.80. Both defendants appealed that judgment, arguing that the trial court erred in its determination that depreciation should be "capped" at 50%.

DISCUSSION

The sole issue presented to this Court relates to the determination of depreciation applicable to the award of damages. As previously stated, the trial court used a 50% depreciation rate in its award of damages.

Defendants/appellants, Taira Lynn and D & S, argue that the trial court erred as a matter of law by applying a portion of the Truman-Hobbs Bridge Act of 1940 (Truman-Hobbs) embodied in 33 C.F.R. § 277.8(g)(2), which suggests a 50% depreciation on the expired service life of the structure in establishing depreciation. Appellants assert that a straight-line depreciation analysis using a ratio of the property's actual life divided by the property's expected useful life at acquisition is appropriate. Using that analysis, appellants argue that, in this instance, the actual life is 45 years and the expected useful life at acquisition is 50 years, resulting in a depreciation of 90%. Appellants conclude the trial court's ruling on this issue is an error of law which invokes a de novo review in this Court.

DOTD counters appellants' arguments by pointing out that general maritime law does not impose a fixed rule for the calculation of depreciation. DOTD asserts that other factors, such as the type of materials originally used, the care and use, and the state of repair maintained are all essential elements to be considered in the determination of the applicable rate of depreciation. DOTD also disputes appellants' conclusion that the applicable standard of review is de novo, and asserts that the award of damages should be upheld because it is not clearly erroneous.

Testimony at trial established that the Sunshine Bridge is a steel continuous truss bridge built in 1963. The top is the superstructure, or the actual truss. From the truss down is soft structure, incorporating wood timbers. There is a fender system to protect the bridge in the event of an extreme impact. Pier 4, part of the fender system, was damaged in this incident. Repair was an "in kind" repair, meaning that the same configuration and clearances as originally constructed were used.

The trial court heard testimony from two experts in bridge engineering on the topic of depreciation analysis. DOTD presented evidence from Zolan Prucz, Ph.D, P.E., whose firm was hired to repair the bridge. Dr. Prucz recommended a 50% depreciation based on the Truman-Hobbs guidelines as evaluated, and on all other conditions of this specific bridge as it relates to similar structures spanning the Mississippi River nearby, namely the Huey P. Long Bridge and the Crescent City Connection.

Dr. Prucz explained that the factors used to determine the service life of a fender system include the type of structure, the material used, the function and conditions to which it is exposed, performance expectations, age, and maintenance and repair history. Dr. Prucz testified that the Truman-Hobbs Bridge Act provides guidance in this determination in that it contains service life estimates agreed upon in the industry.

Dr. Prucz clarified the difference between the expected service life of a structure and the actual service life. He stated that values presented relating to expected service life refer to the expectation of a structure when new, i.e., the probable life. These values do not take into account the condition of the structure at any given time. They are based on statistics of service life of similar structures in the past. In short, the concept of expected useful life applies to a future projected useful life of a new structure. Actual service life, in comparison, relates more to structures that have been in existence and have a history of performance, and/or a quantifiable nature of deterioration over the years.

In evaluating and rendering a professional opinion on the useful life of a structure such as Pier 4, the actual useful life, as opposed to the expected useful life, is a more accurate and a better measure of the useful life of the structure for purposes of depreciation in Dr. Prucz's professional opinion. Dr. Prucz estimated a 50 year expected useful life for the Sunshine Bridge. He stated that the fender was in good condition when it was removed, with some newer timbers showing ongoing maintenance.

Taira Lynn and D & S offered the testimony of Donald Barnes, P.E. who opined that the depreciation rate should be increased to 75% based on inadequate maintenance and condition of the pier. Although Mr. Barnes did find some newer timbers, he disagreed with Dr. Prucz's assessment on the condition and maintenance, finding it lacking.

Mr. Barnes focused on the conditions of the fender of the Sunshine Bridge and found that timbers were deteriorating, indicating the ongoing maintenance program was inadequate. Mr. Barnes found deteriorating timbers in the structural truss meant to protect the pier, causing it to weaken. However, during his testimony there was some confusion as to whether the photograph used to support this assertion was actually from Pier 4 or Pier 5.

Mr. Barnes cited a study from the American Wood Preservers Institute (AWPI) on the life expectancy of wooden timbers. That study indicates that the expected service life of timbers is 75 years in northern climates, but only 40 years in southern climates. Additionally the AWPI study shows that wood timbers last 5 or 10 years less in a marine environment. Ultimately, Mr. Barnes estimated that the timbers in Pier 4 were 15 years past their life expectancy.

Both experts discussed the Truman-Hobbs Bridge Act. In his testimony, Dr. Prucz explained that the act was passed in the 1940's, and covers policy rules and procedures for apportioning reconstruction costs when replacing highway and railroad bridges that are deemed to be a hazard to navigation. Dr. Prucz testified that Truman-Hobbs has application in the matter in so far as it provides uniformity in establishing the service life of a bridge. Dr. Prucz explained that Truman-Hobbs relied on data produced and accepted by different agencies, and establishes valuable guidelines that provide uniformity. This is particularly important in the evaluation of state structures like the Sunshine Bridge because they can be compared to similar structures around the country. Dr. Prucz testified that, although the guidelines in Truman-Hobbs offer valuable guidance, these guidelines are not simply mathematically applied. Ultimately, Dr. Prucz recommended a 50% depreciation rate based on all valuation factors.

ANALYSIS

On appeal, appellants assert the trial court erred in failing to apply "new for old" principles and straight-line depreciation under general maritime law and in "capping" depreciation at 50% pursuant to the Truman-Hobbs Bridge Act. The "new for old" rule seeks to avoid giving the injured person the windfall of providing him with a new replacement for that which was old and depreciated and would in normal course have to be replaced in any event.

Appellants reason that DOTD should not be allowed a betterment of its position. Rather, DOTD should only be allowed to recover the amount of compensatory damages that would return it to the position it was at the time of the allision. In support of that assertion, appellants argue that the fender, which was 45 years old at the time of the accident and had a 50 year expected life span, should be depreciated by 90% using the "new for old" and straight-line depreciation analysis of general maritime law.

Appellee counters that there is no fixed rule for the calculation of depreciation in general maritime law, and points out that neither expert testified that a straight-line calculation should be applied. Appellee further notes that even appellants' own expert testified that a 75% rate of depreciation was appropriate based on the condition of the pier at the time of the incident.

In the matter before us, it is only one fender that has been repaired, not the entire bridge. The concept that a pier of a bridge has an independent life expectancy of its own due to the hazards of river traffic has been rejected by the federal courts. A pier of a bridge has been compared to a wall of a building, in that the repair or replacement of the pier adds nothing of substance to the over-all value of the structure of which it is an integral part.

In Oregon v. Tug Go-Getter , the defendant's barge collided with and caused severe damage to the south pier of the plaintiff's bridge. The Ninth Circuit held that the cost of repairs should not be reduced by depreciation on the old pier. The court reasoned that the repairs did not add to the life expectancy because the pier was an integral part of the bridge structure, and regardless of the pier's condition it would have to be replaced when the bridge required replacement.

In City of New Orleans for Use & Benefit of Sewerage & Water Bd. of New Orleans v. Am. Commercial Lines, Inc., the court found the cost to repair a nine-year-old fender with no evidence of deterioration at the time of the accident was not subject to the "new for old" rule.

In Brunet v. United Gas Pipeline Co. , a pipeline crossing that was a small part of a much larger pipeline system was damaged. The crossing normally would not have been replaced until the entire pipeline was replaced. Under these facts the court found the defendant was not entitled to a deduction for depreciation.

When applying the facts of this case to the applicable law, we find the "new for old" rule has no application. Pier 4 is an integral part of the Sunshine Bridge, which if undamaged, would not have to be replaced until the entire bridge was scheduled for replacement. Accordingly, we find this argument to be without merit.

Appellants also argue the trial court should have applied the straight-line depreciation to this case. We disagree. While straight-line depreciation is used in maritime law, it is not the exclusive method for calculating depreciation. Straight-line depreciation is generally used when the expected useful life of the property after repairs is the same as it was at the time of its acquisition. In other cases in which the straight-line depreciation formula has been applied, the court either assumed or explicitly found that the repaired or replaced property had a useful life identical with the old property when it was purchased by the plaintiff.

In general maritime law, straight-line depreciation is a "handy tool" to establish an amount of damages appropriate to return an injured party to its economic position before the accident. However, the federal courts have recognized that straight-line depreciation does not apply in all cases. "[W]here the repairs do not extend the useful life of the property as it existed just before the collision, there should be no deduction for depreciation." Whether depreciation should be applied, depends on whether the repairs extended the useful life of the property and, if so, what portion of the repair costs is attributable to the useful life extension. "While a linear, or straight line, depreciation method is most commonly used for property with a fixed life span, this method is not to be applied where evidence establishes that the original property had been deteriorating at a nonlinear rate."

There is testimony from both experts relating to the expected life span and the rate of deterioration. While the experts disagreed on both of those issues, neither testified that a straight-line depreciation method is appropriate here. Given the testimony and documentary evidence contained in the record before us, we do not find a straight-line depreciation calculation is appropriate in this case.

Appellants also argue that the trial court's reliance on 33 C.F.R. § 277.8(g)(2) is legal error. We disagree. 33 C.F.R. § 277.8 is part of Chapter II, Corps of Engineers, Department of the Army, contained in Title 33 of the Code of Federal Regulations which governs navigation and navigable waters. 33 C.F.R. § 277.8 sets forth "the procedures for apportionment of costs of bridge alterations, as established by the U.S. Coast Guard (reference § 277.3(c) ) and adapted for use in Corps planning and construction programs." Clearly, this regulation was not intended to determine compensatory damages in a civil lawsuit and is not controlling. In that, we agree with appellants. However, this regulation can be useful as guidance in the difficult task of calculating the expected life span and rate of depreciation of an integral part of a bridge, especially considering the extensive amount of data collected by Congress before its enactment.

33 C.F.R. § 277.8(g) provides in pertinent part as follows:

(2) For timber structures which have been in existence for more than 50 percent of their estimated service life, the expired service life is held usually at 50 percent providing the structure has been adequately maintained and is in a good state of repair.

We recognize that 33 C.F.R. § 277.8(g)(2) refers specifically to railroad bridges. However, we do not find that the trial court erred as a matter of law in accepting an expert opinion that the factors in 33 C.F.R. § 277.8(g) give guidance in determining the expected life span of a bridge for the purpose of determining the rate of depreciation, especially in light of parts (3) and (4) of 33 C.F.R. § 277.8(g) . This position is further supported by the other factors considered by both experts and ultimately accepted by the trial court. It is clear from Dr. Prucz's testimony that these regulations were used only as guidelines in his estimate of the rate of depreciation, not as mandates. Therefore, we do not find a de novo review is required.

We are cognizant of appellant's concern that the trial court indicated in the reasons for judgment that Dr. Prucz opined that 33 C.F.R. § 277.8(g)(2) is "applicable." While the trial court used the word "applicable", neither the reasons for judgment nor the judgment itself shows that the trial court considered that section of the law to be binding or controlling. A reading of the reasons for judgment and the expert opinions on which it relies shows that the trial court merely considered 33 C.F.R. § 277.8(g)(2) to be illustrative and helpful in establishing a depreciation rate.

Furthermore, the reasons for judgment are not the judgment itself. Appeals are taken from the judgment, not the written reasons for judgment. Reasons for judgment set forth the basis for the court's holding and are not binding. Because we find no error of law in the trial court's ruling, a de novo review of the record in inappropriate.

The district court's determination on the amount of damages may not be overturned unless clearly erroneous. A reading of the reasons for judgment shows the trial court weighed the testimony of the two experts and found Dr. Prucz's to be more convincing. Thus, the trial court accepted Dr. Prucz's opinion that depreciation should be 50%. Although Dr. Prucz explained the Truman-Hobbs Bridge Act and its relevance, it is clear from the testimony that other factors, specific to the Sunshine Bridge, entered into Dr. Prucz's opinion. Specifically, Dr. Prucz considered the age and condition of the structure, the type of materials used, the function, the conditions to which the bridge is exposed, including the extent of use and the condition of the pier when it was removed. Dr. Prucz compared these factors to other similar bridges in the area that span the Mississippi River.

Mr. Barnes testified that Truman-Hobbs relates to the allocation of funds to rebuild a bridge and stated that he does not use that act in his determination of depreciation in the context of bridge repairs. He further testified that, even assuming the act applies, the 50% depreciation rule is not applicable because of the inadequate maintenance on the bridge, and its condition at the time of the allision. While Mr. Barnes testified that he does not normally use the guidelines in the Truman-Hobbs Bridge Act, he did use similar guidelines in his determination that the rate of depreciation should be 75%.

The main difference between the expert opinions is the condition of the bridge at the time of the accident and the level of maintenance. It is clear from the reasons for judgment that the trial court credited Dr. Prucz's testimony more than that of Mr. Barnes. The court pointed out that Mr. Barnes does not have the expertise of bridge repair and design that Dr. Prucz has. Further, the trial court noted that Mr. Barnes did not inspect the site and "could not even verify the photographs used in his report." Thus, the trial court accepted Dr. Prucz's opinion on the expected life of the bridge in setting the depreciation rate, and used the 50% depreciation rate recommended by Dr. Prucz. We find no abuse of discretion in that determination.

For the foregoing reasons, we affirm the judgment on appeal.

AFFIRMED

      In maritime and admiralty law, an "allision" occurs when a moving object strikes a stationary object, while a "collision" occurs when two moving objects strike each other.

      La. R.S. 13:4203 provides that, "(l)egal interest shall attach from date of judicial demand, on all judgments, sounding in damages, "ex delicto", which may be rendered by any of the courts."

      At trial it was shown that the initial low bidder in the public bid process, Johnson Bros., later withdrew its bid and forfeited its bid bond of $128,151.00. That amount was split between Pier 4 and 5. Since Pier 5 was damaged in an unrelated allision, the trial court gave a credit of $64,075.00 to defendants herein for the damage to Pier 4.

      There is testimony that the repair was "in kind" by Coast Guard standards even though some of the wood timbers were replaced with steel.

      State of Or. By & Through State Highway Comm'n v. Tug Go-Getter, 468 F.2d 1270, 1273 (9th Cir. 1972).

      Id.

      Id. at 1274.

      Id. at 1270.

      662 F.2d 1121 (5th Cir. 1981).

      15 F.3d 500 (5th Cir. 1994).

      State of Or. By & Through State Highway Comm'n v. Tug Go-Getter, supra.

      Freeport Sulphur Co. v. S/S Hermosa , 526 F.2d 300, 305 (5th Cir. 1976).

      Id.

      Id.

      Brunet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994), citing Freeport Sulphur Co. v. S.S. Hermosa, 526 F.2d 300, 305-06 (5th Cir.1976).

      Freeport Sulphur Co. supra, 526 F.2d at 305.

      Pillsbury Co. v. Midland Enterprises, Inc., 715 F.Supp. 738, 765-766 (E.D. La. 1989), aff'd and remanded, 904 F.2d 317 (5th Cir. 1990) (citations omitted).

      33 C.F.R. § 277.8 (initial paragraph).

      In pertinent part, 33 C.F.R. § 277.8(g) reads:
      (3) The service life of highway bridges, except for certain long span bridges, is usually limited by obsolescence as well as structural deficiency and deterioration. Obsolescence may be due to insufficient capacity for heavier loads and greater volume of traffic than the bridge was originally designed for, safety requirements, and location. Superstructures and pile bents are considered to have a service life of 50 years. Masonry substructure which could be reused in the renovation of a bridge is considered to have a service life of 100 years.
      (4) The foregoing service life figures are not to be used arbitrarily, but as a basis for a fair judgment of the service life considering all other factors that pertain in any particular case.

      See La.C.C.P. art. 1918.

      Aderholt v. Metro Sec., Inc., 14-880 (La. App. 5 Cir. 3/25/15), 169 So.3d 635, 640.

      Todd Shipyards Corp. v. Turbine Serv., Inc., 674 F.2d 401, 405 (5th Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982).


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Jeffrey T. KRUEBBE
    NO. 17-KP-584
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2018
    COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand
    COUNSEL FOR DEFENDANT/RELATOR, JEFFREY T. KRUEBBE, In Proper Person
    COUNSEL FOR PLAINTIFF/RESPONDENT, LOUISIANA DEPARTMENT OF JUSTICE, David G. Sanders, Baton Rouge, Jeffrey M. Landry, Colin Clark
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   WICKER, J.

In this pro se writ application, relator, Jeffrey Kruebbe, seeks review of his conviction and sentence for misdemeanor theft in violation of La. R.S. 14:67. For the following reasons, relator's conviction and sentence are affirmed. However, we grant this writ for the limited purpose to remand this matter to the trial court for correction of the minute entry to comport with the plea as reflected in the transcript.

Procedural History

On March 12, 2015, the Jefferson Parish District Attorney's office filed a bill of information in Second Parish Court for the Parish of Jefferson, charging defendant with one count of theft under $500.00 in violation of La. R.S. 14:67. The State alleged that defendant committed theft of under $500.00 cash money from Genuine Parts Company d/b/a National Automotive Parts Association ("NAPA"), defendant's former employer, between January 21, 2015, and February 6, 2015.

Defendant filed numerous motions in both state and federal court. On December 11, 2015, in Second Parish Court, defendant filed a "Pro Se Motion to Dismiss Plaintiff's Complaint and/or Motion to Transfer Venue Under 28 U.S.C. § 1446(a)." In his motion, defendant alleged multiple due process violations, including a coerced confession, defective service of process, and a judge who could not be impartial. The trial court denied defendant's motion to dismiss on December 14, 2015.

On June 14, 2016, the Jefferson Parish District Attorney filed an Application for Sanity Commission in the trial court, based upon an email defendant wrote to an assistant district attorney, in which defendant claimed that his "friend [who] wrote the brief for me" was "targeted and harassed and basically killed/ murdered by Gail Benson, Angela Hill and Sean Payton." The trial court granted the motion, staying the trial until a hearing regarding defendant's mental competency could be held.

On October 19, 2016, defendant filed a motion to declare the Judicial Expense Fund unconstitutional, and a pro se motion to dismiss his criminal case. On November 2, 2016, the trial court denied defendant's motion to declare the fund unconstitutional. On November 3, 2016, the district attorney filed a motion to strike pro se pleadings filed by the defendant in the state court proceeding, arguing that the court previously appointed counsel, Jesse Beasley, to represent defendant. That motion was granted on November 3, 2016.

On February 8, 2017, following defendant's Sanity Commission hearing during which defendant was represented by counsel, the court determined defendant was competent to stand trial.

On August 14, 2017, defendant entered an unconditional guilty plea before an ad hoc judge, pursuant to La. C.Cr.P. art. 894. According to the Boykin v. Alabama form, defendant waived his right to a trial, the State's obligation to prove defendant's guilt beyond a reasonable doubt, the right to confront and cross-examine witnesses, the right against self-incrimination, and the right to appellate review. Defendant was represented by appointed counsel, and was sentenced to thirty days in parish prison, deferred, eleven months of probation, and thirty hours of community service. This timely writ, seeking review of defendant's conviction and sentence, follows.

Factual Background

Because defendant pleaded guilty, the underlying facts were not fully developed at a trial. During the guilty plea colloquy, defendant admitted to the factual basis for his theft charge-that he committed theft of less than $750.00 in cash money from NAPA on February 9, 2015, in violation of La. R.S. 14:67.

According to the NAPA internal investigation, on February 9, 2015, after noticing a $40.00 shortage in cash register deposits, Darrell Yates, the store manager of the Marrero NAPA location, contacted Greg Galle, NAPA's District Manager for Loss Prevention, regarding a suspected theft. According to NAPA's internal investigation, Yates, on a closed circuit television, observed defendant, a NAPA delivery driver, approach the store's cash register while the clerk was away from the register, put a key in the register, take money, look around to see if anyone noticed, and leave the store to make a delivery.

According to NAPA's report, defendant acknowledged in writing his responsibility for the missing funds from the cash register. Subsequently, Officer Adrian Brouillette of the Jefferson Parish Sheriff's Office issued a misdemeanor summons to defendant for theft in violation of La. R.S. 14:67.

Discussion

In this pro se writ application, defendant seeks review of thirteen assignments of error-ranging from violations of his constitutional rights to multiple claims that defendant was prejudiced throughout the proceedings-and seeks a withdrawal of his guilty plea. Defendant additionally asserts an ineffective assistance of trial counsel claim, contending that his trial counsel was ineffective and forced him to plead guilty without his consent.

To the extent defendant argues that his guilty plea should be withdrawn, only pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. Eiermann , 17-44 (La. App. 5 Cir. 6/29/17), 224 So.3d 1220, 1224 (citing State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124 ) ); State v. Carroll , 17-17 (La. App. 5 Cir. 06/29/17), 224 So.3d 1179, 1185. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter a plea by a plea bargain or what he believes to be a plea bargain and the bargain is not kept. Id. At a minimum, under Boykin , the defendant must be notified of the waiver of three constitutional rights-the right to trial by jury, the defendant's privilege against self-incrimination and defendant's right to confront his accuser. State v. Robinson, 02-1253 (La. App. 5 Cir. 4/8/03), 846 So.2d 76, 85. If the defendant does not waive these rights, he has been denied due process of law as the plea was not given freely and knowingly. Eiermann , 224 So.3d at 1224 (citing State v. Goff , 13-866 (La. App. 5 Cir. 4/09/14), 140 So.3d 146, 150-51 ; State v. Dixon , 449 So.2d 463, 464 (La. 1984) ).

A review of the record reveals there are no constitutional infirmities or irregularities that would warrant a withdrawal of defendant's guilty plea. The guilty plea transcript reflects that defendant waived his right to trial, the State's requirement to prove his guilt beyond a reasonable doubt, his right to confront and cross-examine witnesses, his right against self-incrimination, and his right to appellate review. During his guilty plea colloquy with the Court, defendant acknowledged that he was in fact guilty of theft. Defendant stated that no threats or promises were made to him to encourage him to plead guilty and acknowledged that his guilty plea could be used to enhance any future conviction under the habitual offender law. Defendant stated that he understood the rights he was waiving, and he signed a waiver of rights form indicating that he understood the significance of his guilty plea. Defendant was further informed that he would be sentenced to thirty days deferred in parish prison, eleven months of probation, and thirty hours of community service.

We find that the plea colloquy along with the signed waiver of rights form constitute a sufficient affirmative showing on the record that defendant was advised of his rights, understood those rights, and that he made an intelligent and knowing waiver of his rights.

In this case, defendant entered an unconditional guilty plea which, by its nature, admits factual guilt and waives all non-jurisdictional defects in the proceedings prior to the entering of the plea. State v. Starks , 01-1078 (La. 3/28/02), 812 So.2d 638, 638-39 (citing Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ); State v. Crosby , 338 So.2d 584, 586 (La. 1976) (citing State v. Foster , 263 La. 956, 269 So.2d 827 (1972) ; State v. Smith , 09-168 (La. App. 5 Cir. 6/23/09), 19 So.3d 509, 510-11 (citing State v. Joseph , 03-315 (La. 5/16/03), 847 So.2d 1196 (per curiam); State v. King , 99-1348 (La. App. 5 Cir. 5/17/00), 761 So.2d 791, 793 ). An unconditional guilty plea waives all non-jurisdictional defects and bars a defendant from later asserting any defects on appellate review. Because defendant pleaded guilty in this case, we do not consider defendant's assignments of error arising out of the trial court proceedings that have been waived by his unconditional guilty plea.

However, defendant also raises an ineffective assistance of trial counsel claim. The Louisiana Supreme Court has generally found that an ineffective assistance of counsel claim is best addressed through an application for post-conviction relief, rather than on direct appeal, so a full evidentiary hearing may be held in the district court. Id. (citing State v. Truitt , 500 So.2d 355, 359 (La. 1987). However, if the record contains sufficient evidence to rule on the merits and the claim is properly raised in an assignment of error, an appellate court may address the claim in a measure of judicial economy. Id. (citing State v. Armstead , 07-741 (La. App. 5 Cir. 2/6/08), 980 So.2d 20, 24 ).

In his pro se writ application, defendant claims that his appointed trial counsel, Jesse Beasley, lied to him and pressured him into entering a guilty plea. Defendant claims that his appointed counsel told him the trial judge would "throw him in prison," if defendant did not plead guilty. He claims that his attorney entered his guilty plea for him. Upon our review of the documentation submitted in connection with this writ application, we find that the record contains sufficient evidence to rule on the merits of defendant's ineffective assistance of counsel claim, and we elect to address this claim in the interest of judicial economy.

A criminal defendant is entitled to effective counsel under the Sixth Amendment of the United States Constitution and Article I, § 13 of the Louisiana Constitution. State v. Jamison , 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 918 (citing State v. Allen , 06-778 (La. App. 5 Cir. 4/24/07), 955 So.2d 742 ). To prove ineffective assistance of counsel, a defendant must show his counsel's performance was deficient and caused the defendant prejudice. Id. (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). In order to prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that but for the attorney's deficient conduct, the outcome of the proceedings would have been different. Id.

Sixth Amendment jurisprudence does not guarantee a defendant the right to errorless counsel. Rather, there is a strong presumption that defense counsel's performance falls within the broad range of reasonable professional assistance. State v. Cambre , 05-888 (La. App. 5 Cir. 7/25/06), 939 So.2d 446, 460 (citing State v. LaCaze, 99-584 (La. 1/25/02), 824 So.2d 1063, 1078 ). Ineffective assistance of counsel claims are judged in hindsight, but evaluated in the context of the situation at the time counsel made the decision. Id.

A review of the documentation provided in connection with this writ application reflects that defendant's ineffective assistance of counsel claim surrounding his plea lacks merit. The guilty plea transcript reflects that the court notified defendant that he was pleading guilty to misdemeanor theft, waiving the right to a judge trial, the requirement of the State to prove his guilt beyond a reasonable doubt, his right to confront his accuser, and his right to self-incrimination. Defendant personally acknowledged that he understood the rights he was waiving. Further, the court asked defendant whether he "acknowledge[d] that no promises or threats have been made to encourage you to enter a plea of guilty," to which defendant responded, "Yes." The record reflects defendant was sentenced to thirty days deferred in parish prison, eleven months of probation, and thirty hours of community service, well below the maximum sentence provided for in La. R.S. 14:67. The record reflects that defendant's plea was knowing and voluntary. Therefore, defendant's ineffective assistance of counsel claim arising out of his guilty plea has no merit.

Errors Patent Review

In his writ application, defendant requests an errors patent review. Generally, an errors patent review is not conducted on misdemeanor appeals. However, on occasion, this court has conducted an error patent review on applications for supervisory review in misdemeanor cases. See State v. Morris , 16-712 (La. App. 5 Cir. 12/29/16), 209 So.3d 420 ; State v. Carruth , 94-147 (La. App. 5 Cir. 9/27/94), 643 So.2d 1319, 1322. The records reflects the following error patent:

The minute entry indicates that defendant's plea was "accepted as an Alfred [sic] plea." However, neither the Boykin form nor the transcript indicated that defendant's plea was made under Alford. Further, defendant did not protest his innocence during his plea hearing. The transcript contrarily indicates that defendant admitted his guilt. Louisiana law holds that when there is a discrepancy between the transcript and minute entry, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983) ; State v. Davis , 17-81 (La. App. 5 Cir. 6/29/17), 224 So.3d 1211, 1220 ). Accordingly, we grant this writ for the limited purpose of remanding this matter to the trial court for correction of the minute entry to delete reference to an Alford plea.

Decree

Accordingly, for the reasons provided herein, defendant's conviction and sentence are affirmed. This writ is granted for the limited purpose to remand this matter to the trial court for correction of the minute entry to comport with the plea as reflected in the transcript.

Conviction and Sentence Affirmed; Writ Granted for Limited Purpose And Remanded

      Defendant was seeking to transfer his case to the United States District Court of the Eastern District of Louisiana. 28 U.S.C. § 1446 (a) provides the procedural requirements to remove a civil action after the action is removable under 28 U.S.C. § 1332. Section 1332 allows for removal of an action where there is complete diversity among the parties, and the action exceeds the amount in controversy required by statute.

      The trial court did not rule on defendant's motion to transfer venue. Defendant also filed a separate federal suit. In his federal complaint, defendant again alleged due process violations under the Fifth Amendment due to (1) false and coerced statements, and (2) the lack of a fair and impartial judge based on the operation of the Second Parish Court of Jefferson Parish Judicial Expense Fund established pursuant to La. R.S. § 13:2562.22. Defendant sought a declaratory judgment declaring La. R.S. § 13:2562.22 unconstitutional and an injunction enjoining enforcement of the Second Parish Judicial Expense Fund.
      Defendant also filed a "Notice of Removal of Criminal Prosecution," alleging that he could not receive a fair trial at the Second Parish Court since the judges control the disposition of the fines and fees they extract from litigants. Defendant's theft charge was remanded to the Second Parish Court on January 22, 2016. The declaratory judgment and injunctive relief complaint was still pending in federal court when the theft charge was remanded. On April 7, 2016, defendant removed his theft claim to the federal court pursuant to 28 U.S.C. § 1443 for the second time. On April 25, 2016, the federal court remanded the case, finding no basis for removal even when construing the pro se pleading liberally. Defendant's civil rights claims in the federal suit were dismissed and the federal court remanded the case to the Second Parish Court on July 20, 2016. Defendant appealed the dismissal and remand to the United States Court of Appeals for the Fifth Circuit on January 27, 2016, and the dismissal and remand was affirmed on May 5, 2017.

      On February 29, 2016, defendant also filed a "Notice of Constitutional Question" in federal court. Defendant served Louisiana Attorney General, Jeff Landry, with the notice via certified mail and on March 1, 2016, the federal court issued an order notifying the Attorney General that the constitutionality of a Louisiana statute had been called into question.

      Defendant has not assigned as error the trial court's grant of the motion to strike. Therefore, that judgment is not before this Court.

      395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      Because defendant was charged with a misdemeanor theft, his right of review is by a supervisory writ. See La. C.Cr.P. art. 912.1(C)(1).

      According to the Jefferson Parish Crime Report, the reporting officer was told the following amounts of money were stolen: $20.00 on January 21, 2015, $40.00 on January 27, 2015, $40.00 on February 4, 2015, $60.00 on February 5, 2015, and $40.00 on February 6, 2015.

      Since defendant was charged with a misdemeanor, he had a right to be tried by a judge. La. C.Cr.P. art. 779 (B)

      La. R.S. 14:67(B), in effect at the time of the defendant's crime, provided:
      (4) When the misappropriation or taking amounts to less than a value of seven hundred fifty dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than one thousand dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.

      North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


author: CONERY, Judge.

text:
    Christopher BLANCHARD v. Demetrius J. HICKS, et al.
    CA 17-1045
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Brian M. Caubarreaux, Emily G. Meche, Wesley K. Elmer, Amira M. Roy, Brian Caubarreaux and Associates, Post Office Box 129, Marksville, Louisiana 71351, (318) 253-0900, COUNSEL FOR PLAINTIFF/APPELLANT: Christopher Blanchard
    Bradley John Gadel, Bradley J. Gadel, APLC, 728 Jackson Street, Alexandria, Louisiana 71301, (318) 448-4406, COUNSEL FOR DEFENDANTS/APPELLEES: Demetrius J. Hicks, GoAuto Insurance Company
    Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.
   CONERY, Judge.

The trial court granted summary judgment in favor of the defendants, GoAuto Insurance Company (GoAuto), and its insured, Demetrius J. Hicks (Mr. Hicks), dismissing the plaintiff Christopher Blanchard's claim for damages allegedly sustained after the patrol car he was driving was struck by Mr. Hicks's vehicle. An unknown thief had stolen the Hicks's vehicle and had abandoned the vehicle just before the collision while the Hicks's vehicle was in gear and still running. Mr. Blanchard appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Blanchard filed suit against Mr. Hicks and his insurer, GoAuto, claiming that he was rear ended by a truck owned by Mr. Hicks and insured by GoAuto. Mr. Hicks and GoAuto denied liability and claimed in its motion for summary judgment that Mr. Hicks's truck had been stolen by an unknown thief. It claimed the unknown thief abandoned the truck while it was in gear and still moving, thus causing Mr. Hicks's truck to collide into the rear of Mr. Blanchard's vehicle, and causing the alleged damages to Mr. Blanchard.

The following facts are undisputed. On August 5, 2016, Mr. Hicks, who is a carpenter and subcontractor, parked his truck in front of a home he was inspecting. Mr. Hicks and his helper exited the truck, leaving the keys in his vehicle with the engine and air conditioning running and the door unlocked. Mr. Hicks testified in both his deposition and affidavit submitted in support of his motion for summary judgment that no longer than four or five minutes had elapsed when the helper noticed a man sitting in the driver's seat of Mr. Hicks's truck. He alerted Mr. Hicks, who quickly walked to the driver's side door. Before Mr. Hicks could grab the handle of the truck door, the unknown thief looked at Mr. Hicks and drove off. Mr. Hicks began chasing the truck. Mr. Blanchard stopped his police unit at a red light and was waiting for the light to change. He was not aware of the stolen truck behind his police vehicle.

Mr. Hicks saw his truck stop about six feet behind the police car. The passenger door opened, and the unknown thief jumped out and took off running. Mr. Hicks saw his truck begin to slowly roll forward and strike the back of the police car occupied by Mr. Blanchard. The unknown thief has never been apprehended.

After being hit by Mr. Hicks's truck, Mr. Blanchard called the police station, which can be seen from the intersection, and reported the traffic accident. At the same time, Mr. Hicks was knocking on the passenger window and waving his arms to alert Mr. Blanchard to the fact that his truck was stolen, and the thief was getting away. After learning that the truck had been stolen Mr. Blanchard then made a second radio call for backup. None of the officers pursued the unknown thief because he had already fled the scene. Mr. Hicks subsequently filed a formal report with the Alexandria City Police stating that his truck was stolen before the accident by an unknown thief.

Mr. Blanchard admitted in his deposition that he had no facts to contradict Mr. Hicks's claim that his truck was stolen. Both Mr. Hicks's statement of uncontested facts and the deposition filed in support of the motion of the summary judgment stated that the door to his truck was closed, the windows were up, and the air conditioner was on when he and his helper left the truck unattended for approximately four to five minutes. The trial court mentioned in its oral reasons for ruling that common sense would dictate that during daylight hours on August 5, 2016 in Alexandria, La., Mr. Hicks would have closed his truck door to allow his air conditioner to keep the truck cool while he made his inspection.

The only evidence submitted into the record filed in support of the motion for summary judgment was filed on behalf of Mr. Hicks and GoAuto. The supporting documentation included the March 17, 2017 affidavit of Mr. Hicks and transcripts of the May 23, 2017 deposition testimonies of Mr. Hicks and Mr. Blanchard. In his opposition to the motion for summary judgment, Mr. Blanchard did not submit any documentation to dispute the facts stated in Mr. Hicks's affidavit and deposition.

The trial court granted the motion for summary judgment for oral reasons assigned and dismissed Mr. Blanchard's claims with prejudice. A judgment was signed by the trial court on September 26, 2017, granting the motion for summary judgment on behalf of Mr. Hicks and GoAuto, dismissing Mr. Blanchard's claims with prejudice, and designating the judgment as final pursuant to La.Code Civ.P. art. 1915(B)(1). Mr. Blanchard now timely appeals the trial court's judgment.

ASSIGNMENT OF ERROR

Mr. Blanchard asserts one assignment of error on appeal:

The Trial Court erred in granting defendants Motion for Summary Judgment in light of the defendant-driver's testimony that he violated Louisiana Revised Statute 32:145 by leaving his vehicle unattended with the keys in the ignition.

Standard of Review

Appellate courts review motions for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. The reviewing court, therefore, is tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

Louisiana Code of Civil Procedure Article 966(D)(1) and (2) further provides:

(1) The burden of proof rests with the mover. 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, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support 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.
(2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum.

In Roy v. Kyrles, Inc. , 07-1605 (La.App. 3 Cir. 5/14/08), 983 So.2d 975, 978, a panel of our court held that the legislature further clarified the burden of proof by enacting La.Code Civ.P. art. 966(C)(2) (now 966(D)(1) and (2) ), stating:

This amendment parallels the language of Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The amended article places the initial burden of proof on the mover of the motion for summary judgment. If the mover meets this initial burden, the burden of proof then shifts to the nonmoving party that has the burden of proof on this particular issue at trial. This nonmoving party then must put forth evidence that shows he or she will be able to meet that burden at trial. If the nonmoving party cannot, then the motion for summary judgment should be granted. Marist & Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.8 (1999).

LAW AND DISCUSSION

In his sole assignment of error on appeal, Mr. Blanchard claims that the trial court erred in granting summary judgment to Mr. Hicks and GoAuto because Mr. Hicks violated La.R.S. 32:145"by leaving his vehicle unattended with the keys in the ignition." Mr. Blanchard claims there is no material issue of fact that Mr. Hicks "failed to uphold his statutory duty."

Louisiana Revised Statutes 32:145 provides:

No person driving or in charge of any motor vehicle shall permit it to stand unattended without first stopping the motor, locking the ignition, removing the key, and effectively setting the brake thereon, and, when standing upon any grade, turning the front wheels to the curb or side of the highway.

The trial court, in anticipation of either a writ or what turned out to be a final judgment, and thus an appeal of this issue, sought to clarify the application of La.R.S. 32:145 to the uncontested facts of this case and stated:

Because like you said, to do what Mr. Hicks did, so many of us do do [sic]. You leave your car running because it's hot as heck in August and you go walk someplace for five minutes and then a thief comes and it's clear, nobody is in dispute about it, it was a thief, an uninvited guest, he did not know them[.]
....
You know, that's what's unexpected for the owner of the car. I am going to go ahead and grant summary judgment because it just-it seems of some common sense, however, I understand the arguments you're giving, Ms. Meche, it [sic] that an open invitation, you have your car running with your keys in it-not a car open, keys are in it but now it's even running so did it jump yet another step. However, what Mr. Hicks did is what so many of us do, is like where is that line for us to-as car owners or anything else, where does it go. But I'm going to grant the summary judgment because it seems to me like Racine [v. Moon's Towing , 01-2837, (La. 5/14/02), 817 So.2d 21 ] however if they are changing it in the Third Circuit and moving on up to do something else, let them decide on this case to say, okay, what are these facts and where does it draw the line, is it because you left the car unlocked and the keys sitting on the dash, in the ignition, or because it's running, to know where it goes from there. Because it sounds like in this case Mr. Hicks even tried to run the man down, even waving to the police officer that the darn car ended up running into in order to try to do some steps. So seems to me as an owner of the vehicle Mr. Hicks actually did more things versus just watching the thief drive off, he chased him down to try to stop the vehicle and save it from doing the very thing it did which is cause an accident. So for that [sic] reasons I'm going to grant summary judgment because I think the owner in this part, yes, stepped out for five minutes but then he went chasing down the car to try to prevent an accident from happening. So let's see what the Third Circuit does with me.

Mr. Blanchard failed to submit any affidavits, deposition testimony or interrogatory answers that create any genuine issue of material fact which would require a trial on the merits. La.Code Civ.P. art. 967(B).

As found by the trial court, the law is well settled that a violation of La.R.S. 32:145 by an individual is not negligence per se and does not extend to liability for an accident that occurs when an unknown thief steals an unlocked vehicle and causes injuries to a third party. In Racine v. Moon's Towing , 01-2837, p. 6 (La. 5/14/02), 817 So.2d at 25-26, the supreme court discussed the history of the cases involving La.R.S. 32:145 and stated:

However, it is well settled under Louisiana jurisprudence that the mere act of a motorist in leaving keys in a car does not create liability on the part of the motorist where a thief steals the car and injures a third party. For example, in Roach v. Liberty Mutual Insurance Co., 279 So.2d 775, 777 (La.App. 1st Cir.), writ denied , 281 So.2d 756 (La.1973), the court stated:
Obviously the motion for summary judgment was based on the well established rule in Louisiana that the leaving of ignition keys in an unattended automobile does not of itself constitute negligence on the part of the owner and he owes no duty to the public at large against the risk of a thief's negligent operation of the automobile. Midkiff v. Watkins , 52 So.2d 573 (1st La.App.1951) ; Town of Jackson v. Mounger Motors , 98 So.2d 697 (1st La.App.1957) ; 22 La.L.Rev. 886-889 (1962). Even if a motorist leaves his vehicle unattended in violation of the so-called "lock statute" ( L.R.S.32:145 ), it has been held that he is nevertheless not responsible for the carelessness of a thief who steals the vehicle and while operating it causes injury to another. Call v. Huffman , 163 So.2d 397, (2nd La.App. 1964), writ refused , 246 La. 376, 164 So.2d 361 (1964) ; Berluchaux v. Employers Mutual of Wausau , 194 So.2d 463 (4th La.App.1967), writ refused , 250 La. 533, 197 So.2d 79 (1967).

Counsel for Mr. Blanchard argued that Racine can be distinguished, as the vehicle in that case was parked on private property and therefore the provisions of La.R.S. 32:145, the "lock statute," did not apply. However, the supreme court further noted in Racine that although the facts in Roach were not the same as in Racine , "the same principle is applicable: the mere act of leaving keys in a vehicle does not make the owner of the vehicle liable for injuries caused by someone who uses that vehicle without authorization." Racine , 817 So.2d at 26.

Mr. Blanchard's counsel further cited this court's recent denial of a supervisory writ in Blanchard v. Mitchell , 17-444, (La.App. 3 Cir. 7/12/17), 233 So.3d 719, writ denied , 17-1372, (La. 11/6/17), 228 So.3d 738. In Blanchard , Troy Rogers was acting within the course and scope of his employment with Robin Ewing Pool Supplies, Inc., when he went to service a customer's pool. Mr. Rogers parked his company's vehicle on the street in front of the customer's home and left the keys in the vehicle for some twenty to twenty-five minutes while he was servicing the pool. While the vehicle was parked unattended on the street, Michael Mitchell entered the vehicle without permission or authority and drove away. Upon hearing the engine start up, Mr. Rogers gave chase and later reported the vehicle stolen. While Mr. Mitchell was driving the vehicle, he was involved in an accident with the plaintiff, Steve Blanchard, who allegedly was injured through the fault of Mr. Mitchell.

Mr. Blanchard sued Robin Ewing Pool Supplies, and its insurer, Valley Forge Insurance, who sought summary judgment. Unlike this case, the trial court in Blanchard denied the defendants' motion for summary judgment and the defendants then filed a supervisory writ to this court.

A panel of this court upheld the trial court's ruling and denied the writ on the basis that the fourth circuit case DeCastro v. Boylan , 367 So.2d 83, 84 (La.App. 4 Cir), writ denied , 369 So.2d 458 (La.1979), held that La.R.S. 32:145"does not go as far as to protect a plaintiff from being negligently injured by one who has stolen his car with the keys left in it[,]" was not "binding authority for this court." Blanchard , 223 So.3d at 719.

Respectfully, the panel's writ decision in Blanchard failed to discuss over fifty years of contrary jurisprudence holding that La.R.S. 32:145 does not impose liability on a vehicle owner when the vehicle is stolen and the thief causes injury to a third party by recklessly operating the vehicle. The jurisprudential history was extensively discussed in DeCastro . In DeCastro , the unlocked vehicle at issue was parked in front of a construction site with the keys in the ignition. The relators contended that the keys were left in the car "so that it could be moved from the front of the work site in case other materials or laborers arrived." DeCastro , 367 So.2d at 83. Shortly thereafter, the car was stolen by an unknown thief and the theft was immediately reported to the police. The police spotted the stolen vehicle, began a pursuit, and ordered a roadblock to intercept the stolen vehicle. The alleged thief attempted to run the roadblock and crashed into Deputy DeCastro's vehicle, injuring him.

In affirming the trial court's ruling granting summary judgment in favor of the defendants, a panel of the fourth circuit in DeCastro , as did the supreme court in Racine , quoted Roach , 279 So.2d 775, which traced the history of La.R.S. 32:145 back to the case of Call v. Huffman , 163 So.2d 397, (La.App 2 Cir. 1964), writ refused , 246 La. 376, 164 So.2d 361 (1964). Call originally discussed the application of La.R.S. 32:145. Relying on both Call and the subsequent 1967 case of Berluchaux , 194 So.2d 463, the court in Roach also found that La.R.S. 32:145 did not change the law and held an individual that is responsible for a "violation of the so-called 'lock statute', ... is nevertheless not responsible for the carelessness of a thief who steals the vehicle and while operating it causes injury to another." Roach , 279 So.2d at 777.

The Blanchard writ panel did not cite or discuss Racine . The supreme court denied writs in Blanchard . However, the denial of a writ by the supreme court does not create a binding precedent. See St. Tammany Manor, Inc. v. Spartan Bldg. Corp. , 509 So.2d 424, 428 (La.1987) ("[a] writ denial by this court has no precedential value"). See also Saucier v. Washington , 17-556, (La.App. 3 Cir. 9/20/17), 229 So.3d 19.

The supreme court decision in Racine is the latest pronouncement by the state's highest court on this issue. The Blanchard case is an anomaly. See Eaglin v. Eunice Police Dep't , 17-127 (La.App. 3 Cir. 10/04/17), 228 So.3d 280.

In Doerr v. Mobil Oil Corp. , 00-947, pp. 13-14 (La. 12/19/00), 774 So.2d 119, 128-29, reh'g granted on other grounds , 00-947, (La. 3/16/01), 782 So.2d 573, the supreme court discussed "the two sources of law in Louisiana: legislation and custom. See La.Civ.Code art. 1." The Louisiana Supreme Court in Doerr also affirmed "that our civilian tradition does not recognize the doctrine of stare decisis in our state," and then discussed the application of jurisprudence under the civilian tradition and stated:

Under the civilian tradition, while a single decision is not binding on our courts, when a series of decisions form a "constant stream of uniform and homogenous rulings having the same reasoning," jurisprudence constante applies and operates with "considerable persuasive authority." James L. Dennis, Interpretation and Applicationof the Civil Code and the Evaluation of Judicial Precedent , 54 La. L.Rev. 1, 15 (1993). Because of the fact that "one of the fundamental rules of [the civil law tradition] is that a tribunal is never bound by the decisions which it formerly rendered: it can always change its mind," 1 Marcel Planiol, Treatise on the Civil Law § 123, (La. State Law Inst. trans.1959) (12th ed.1939), prior holdings by this court are persuasive, not authoritative, expressions of the law. See Yiannopoulos, supra, at § 35, p. 54. Thus, it is only when courts consistently recognize a long-standing rule of law outside of legislative expression that the rule of law will become part of Louisiana's custom under Civil Code article 3 and be enforced as the law of the state. See La.Civ.Code art. 3.
Doerr , 774 So.2d at 128-29. See also Borel v. Young , 07-419 (La. 11/27/07), 989 So.2d 42, reh'g granted , 07-419, (La.7/1/08), 989 So.2d 53, 65.

We agree with the long line of Louisiana cases holding that "the mere act of leaving keys in a vehicle does not make the owner of the vehicle liable for injuries caused by someone who uses that vehicle without authorization." Racine , 817 So.2d at 26.

In this case, not only did the unknown thief steal Mr. Hicks's truck, but he then abandoned the truck after he stopped behind Blanchard's police unit, leaving the truck in drive such that it collided into the rear of the Blanchard vehicle. Mr. Hicks's, upon seeing that his truck had been stolen, did everything he could to apprehend the unknown thief, including personally chasing him down the street on foot.

We agree with the able trial court's analysis that there was no independent fault by Mr. Hicks. We find that it was the fault of the unknown thief that caused Mr. Blanchard's alleged injuries and damages. We affirm the trial court's ruling granting summary judgment in favor of GoAuto and its insured, Mr. Hicks.

CONCLUSION

For the foregoing reasons, the September 26, 2017 judgment of the trial court dismissing all claims by plaintiff Christopher Blanchard against GoAuto Insurance Company, and its insured, Demetrius J. Hicks, is affirmed in its entirety. All costs of this appeal are assessed to Christopher Blanchard.

AFFIRMED.

Cooks, J. dissents and assigns reasons.

COOKS, J., Dissents.

This case is not ripe for summary disposition as a matter of law because the law is not clear. The lack of certainty in the law has been highlighted by our brethren on the supreme court and in our appellate courts as more fully discussed below.

The majority bases its affirmance on the supreme court's holding in Racine wherein the high court cites a long line of Louisiana jurisprudence for the proposition that: "the mere act of a motorist in leaving keys in a car does not create liability on the part of the motorist where a thief steals the car and injuries a third party." But, the holding in Racine does not dispose of the factual matter presented in this case. In Racine the vehicle was not parked on a public street or roadway and thus did not fall under the ambit of La.R.S. 32:145 , unlike the vehicle in this case, which was parked on the public roadway with the keys in the ignition, the motor running, and the doors unlocked. The owner of the vehicle did not remain near his truck but was busy inspecting his property. As might be expected in today's world, a thief stole the truck and during his attempted get-a-way, jumped out of the truck in the roadway behind a police car driven by Officer Blanchard. The abandoned stolen truck proceeded forward and struck the patrol car.

Racine relied in part on a 1973 appellate case, Roach v. Liberty Mutual Ins. Co. , 279 So.2d 775 (La.App. 1 Cir. 1973), which held the owner of a vehicle has no duty to the public at large against the risk of a thief's negligent operation of the automobile. Roach relied on language the court cited from a second circuit case, Call v. Huffman , 163 So.2d 397 (La.App. 2 Cir. 1964), writ refused , 246 La. 376, 164 So.2d 361 (La. 1964) and a fourth circuit case, Berluchaux v. Employers Mutual of Wausau , 194 So.2d 463 (La.App. 4 Cir. 1967), writ refused , 250 La. 533, 197 So.2d 79 (1967). In Roach , also a summary judgment case, the car was driven by an unauthorized person who it appears stole the car. Notably in Roach , the defendant renter of the stolen vehicle did not say she left the keys in the car, she said the car was parked on Avenue L and someone stole it and wrecked. There was no evidence that Mrs. McLaughlin, who was renting the car, left the keys in the car or otherwise violated La.R.S. 32:145. The evidence accepted on summary judgment was simply that the car was stolen while parked on the street. In Midkiff v. Watkins , 52 So.2d 573 (La.App. 1 Cir. 1951) cited in Roach and in Racine quoting Roach , the car was parked in a church parking lot. Likewise, in Town of Jackson v. Mounger Motors , 98 So.2d 697 (La.App. 1 Cir. 1957), also cited in Roach , the vehicle was parked on a used car lot. In Call the car was parked at the Southside Drive Inn, it was not left on the public street. Thus, these cases did not actually involve a violation of the statute .

When the fourth circuit first decided the facts alleged in Berluchaux the plaintiffs averred the vehicle was stolen while parked on private property. The court of appeal upheld dismissal of the suit. After that judgment became final plaintiffs filed a new suit alleging the vehicle was on the public street when it was stolen. In dismissing that suit the appellate court relied on previous appellate decisions that held "our jurisprudence has long been settled to the effect that merely leaving keys in a car is not a proximate cause of injuries received through the subsequent negligence of a thief." Berluchaux , 194 So.2d at 465. The appellate court in Berluchaux , back in 1967, pre-dating comparative fault, made short shrift of plaintiff's argument by simply stating that the "long-settled rule" was based on the "general principles of negligence and due care [ ] applied in [their] prior decision and any issue concerning its validity or application cannot be reconsidered now." Id.

The majority in this case takes issue with a recent panel of this court's decision in Blanchard v. Mitchell , 17-144 (La.App. 3 Cir. 7/12/17), 233 So.3d 719, writ denied , 17-1372, (La.11/6/17), 228 So.3d 738. The majority faults the panel for failing to follow Racine or at least mention it in their decision. In that case the panel denied a writ challenging the trial court's denial of a motion for summary judgment in a case involving a plaintiff injured when he was struck by a stolen car. The pool guy left his keys in his car, parked on the street , while servicing a customer's pool. The panel reasoned that summary judgment was rightly denied because the Plaintiff made compelling arguments in favor of finding that a duty to plaintiff is imposed by La.R.S. 32:145, Louisiana's unattended vehicle statute: "In the instant case, we find that the fact finder could reasonably conclude that Mr. Rogers' leaving the keys in the vehicle contributed to Plaintiff's accident to some extent " (emphasis added). The majority finds this holding is at odds with the "settled jurisprudence" of this state and is at odds with the last pronouncement from our State Supreme Court in 2002 in Racine.

First, the jurisprudence applicable in Blanchard v. Mitchell and in this case is far from "settled." Second, and importantly, the Supreme Court denied writs in Blanchard v. Mitchell. Two justices, Crichton and Clark, dissented, saying they would grant the writ to address the important question presented which "has not recently [been] addressed," adding that they "do not find the statute was intended to create a duty to protect third persons from the negligence of unauthorized users of a vehicle." But the supreme court majority's denial of the writ is indicative to me that the remainder of our supreme court justices do not agree with Justice Clark and Justice Crichton's "finding." Third, and of significance, I note the supreme court did not cite Racine as a reason to grant the writ and overrule the panel in Blanchard v. Mitchell. This indicates to me they do not think the panel was wrong. I do not agree with the majority's finding that the panel in Blanchard v. Mitchell ignored prior jurisprudence because I believe the existing jurisprudence does not answer the question raised in that case or in this one. I can find no decision by the state supreme court, post comparative fault, that sets the matter straight, ergo the two justices' motivation to grant the writ in Blanchard v. Mitchell. I reiterate, a majority of the supreme court denied writs in Blanchard v. Mitchell leaving in place the panel of this court's decision to deny writs based on the trial court's reasonable conclusion that there is the possibility of comparative negligence in the matter. Apparently, the panel in Blanchard v. Mitchell perceives the possibility of a duty under the statute, applying the duty-risk analysis under comparative fault, the possibility of a breach of that duty with resulting injury, and at least some percent of comparative fault for breach of that duty. I maintain this case too, cannot be disposed of on summary judgment for the simple reason that the law on the question at hand is completely unknown because the supreme court has not yet ruled on the matter. Racine does not resolve this case.

The supreme court has previously held that: "Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support his claim." Faucheaux v. Terrebonne Consol. Gov't. , 615 So.2d 289, 292 (La. 1993). In Meany v. Meany , 94-251 (La.7/5/94), 639 So.2d 229, the supreme court explained the principles involved in determining legal duty for Louisiana tort negligence determinations. "In deciding whether to impose a duty in a particular case , the court must make a policy decision in light of the unique facts and circumstances presented. See Socorro v. City of New Orleans , 579 So.2d 931 (La. 1991)." Lemann v. Essen Lane Daiquiris, Inc. 923 So.2d 627 (La. 2006) and cases cited therein (emphasis added).

When a plaintiff articulates a general rule or principle of law that protects his interests, it is necessary for the court to determine whether the rule is intended to protect him from the particular harm alleged, an inquiry which involves both the duty and causation elements of the negligence formulation. The court must make a policy determination in light of the unique facts of the case. Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case. Socorro v. City of New Orleans , 579 So.2d 931, 938 (La. 1991). In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiff's harm and the defendant's conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant's activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving. Pitre v. Opelousas General Hospital , 530 So.2d 1151, 1161 (La. 1988) ; William E. Crow, The Anatomy of a Tort , 22 Loy. L.Rev. 903 (1976).
Finding a duty is dependent upon the "facts and circumstances of the case and the relationship of the parties." Fox v. Bd. of Supervisors of La. State Univ. and Agric. and Mech. Coll . , 576 So.2d 978, 981 (La. 1991).

Meany , 639 So.2d at 233 (emphasis added).

The trial judge here was moved by the habit of our people to leave the AC running in their vehicles in August while making brief stops in their daily sojurns. Perhaps Hicks had nowhere but the street to park his vehicle (the duty analysis being much easier if he had parked his truck on his own property instead of the public roadway). But when weighing all of the factors articulated in Meany , it seems to me there is a strong argument in favor of assessing some degree of fault to Hicks as it was within his power and control to avoid harm to the Plaintiff by removing his keys from his vehicle parked on the public road as the statute requires him to do. While our courts have never extended liability for unauthorized use of a vehicle kept on private property there is no reason a jury could not find that under the present circumstances Hicks bears some measure of comparative fault for his negligent behavior. I believe this is true not only because he violated the statutory prohibition against leaving his keys in the ignition and his vehicle running while parked on the pubic roadway, thus enabling and even enticing a thief, but also because under a duty risk analysis he breached a duty owed to the public not to make it easy for a thief to steal his vehicle and cause damage to others. At the very least the application of the statute under the instant facts presents a policy question not yet directly answered by our supreme court and it begs to be addressed.

The Plaintiff here, and the plaintiff in Blanchard v. Mitchell , assert that violation of the statute imposes liability on the violator. I recognize that the Louisiana State Supreme Court has expressly rejected "negligence per se" see Faucheaux , 615 So.2d at 292, citing Weber v. Phoenix Assur. Co. of New York , 273 So.2d 30 (La. 1973). "The violation of a statute or regulation does not automatically, in and of itself, impose civil liability. Civil responsibility is imposed only if the act in violation of the statute is the legal cause of damage to another." Supra. 292-93. I believe in this case, and in Blanchard v. Mitchell , the violation of the statute may well be a legal cause of damage to Officer Blanchard, at least to some degree. The legal cause of damage to officer Blanchard may well be said to be due in part to Hicks' negligent and unlawful behavior in leaving his keys in the car and the motor running while parked on the public roadway. As our state supreme court has held, liability is imposed if the risk at issue falls within the scope of the duty. Faucheaux , 615 So.2d at 293.

The scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Rules of conduct are designed to protect some persons under some circumstances against some risks. Gresham v. Davenport , 537 So.2d 1144, 1147 (La. 1989) ; Malone, Ruminations on Cause-in-Fact, 9 Stan.L.Rev. 60, 73 (1956). The scope of protection inquiry asks whether the enunciated rule extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Crowe, The Anatomy of a Tort-Greenian, As Interpreted by Crowe Who Has Been Influenced by Malone-A Primer , 22 Loy.L.Rev. 903 (1976). In determining the limitation to be placed on liability for defendant's substandard conduct, the proper inquiry is often how easily the risk of injury to plaintiff can be associated with the duty to be enforced. Hill v. Lundin & Associates, Inc. , 260 La. 542, 256 So.2d 620, 622 (1972).

Faucheaux , 615 So.2d at 293-94 (emphasis added).

In another stolen vehicle case the second circuit in Knicely v. XYZ Ins. Co. , 43,250 p. 8 (La.App. 2 Cir. 9/17/08) 997 So.2d 8, 12, writ denied , 08-2729 (La.1/30/09), 999 So.2d 758, (Justices Kimball, Johnson, and Traylor would grant the writ) the court found that even if the car dealership, which had left keys in the vehicle "parked outside the vehicle line," had a duty to lock the vehicle, that duty "did not include within its scope of protection the risk resulting from Scott's theft and recklessness." Plaintiff argued the dealership was negligent in leaving the keys in the vehicle with the doors unlocked and such was the legal cause of the accident. In that case the plaintiff alleged the dealership had experienced prior thefts and was aware of the risk of a vehicle with the keys left in it being stolen. But in that case the court found La.R.S. 32:145did not apply. Even so, three justices would have granted the writ.

In Miller v. LAMMICO , 07-1352 p. 9 (La. 1/16/08), 973 So.2d 693, 700, the supreme court recognized: "The general rule of comparative fault requires courts to calculate damages in such a manner that each tortfeasor pays [ ] for that portion of the damage he has caused. La. Civ.Code art. 2323 ; Dumas v. State ex rel. Dep't of Culture, Recreation & Tourism, 02-0563, pp. 11-15 (La.10/15/02), 828 So.2d 530, 537-38." And in Touchard v. Williams , 617 So.2d 885, 889-90 (La. 1993) (emphasis added and in original) the supreme court in addressing solidary liability said:

("When the actionable negligence of two tortfeasors contributes in causing harm to a third party, each of them is responsible for the damage. They are solidarily liable." ); Narcise v. Illinois Cent. [Gulf ] R.R. Co., 427 So.2d 1192 (La.1983) ; Huguet v. Louisiana Power & Light Co., 196 La. 771, 200 So. 141 (1941).
....
Alternatively stated, the modern justification for the retention of solidary liability is founded on the notion that the innocent plaintiff should obtain full compensation from any person whose fault was an indispensable factor in producing the harm. Martha Chamallas, Comparative Fault and Multiple Party Litigation in Louisiana: A Sampling of the Problems, 40 La.L.R. 373 (1980). See also Thorton [Thornton ] v. Luce, 209 Cal.App.2d 542, 26 Cal.Rptr. 393 (1962) ; Robert A. Steinberg, The Doctrine of Joint and Several Liability is Properly Concerned with the Rights of Victims rather than the Economic Well-Being of Wrongdoers, 9:3 L.A.Lawyer 35 (1986).

In discussing the contemporary tort law in Louisiana concerning duty risk, the supreme court explained in Faucheaux , 615 So.2d at 293-94 (emphasis added):

The scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Rules of conduct are designed to protect some persons under some circumstances against some risks. Gresham v. Davenport, 537 So.2d 1144, 1147 (La.1989) ; Malone, Ruminations on Cause-in-Fact, 9 Stan.L.Rev. 60, 73 (1956). The scope of protection inquiry asks whether the enunciated rule extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Crowe, The Anatomy of a Tort-Greenian, As Interpreted by Crowe Who Has Been Influenced by Malone-A Primer, 22 Loy.L.Rev. 903 (1976). In determining the limitation to be placed on liability for defendant's substandard conduct, the proper inquiry is often how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Hill, supra.

The ease of association (at least to my mind and a previous panel of this court, as well as perhaps several supreme court justices noted herein) between leaving one's keys in the ignition with the motor running, the vehicle unlocked, parked on the public highway, all while the owner of the vehicle absents himself from the vehicle, and the actions of a thief leaving the scene of his thievery causing injury to another motorist, is not difficult to make. The purpose of the statute has long been recognized as preventing theft. See Call , 163 So.2d at 400. Thus, if the owner of the vehicle has a statutory duty under La.R.S. 32:145 to prevent the theft of his vehicle and he violates that duty, the risk of harm to a motoring plaintiff that occurred during the process of the thievery seems to me easy to associate. Hicks' actions in direct violation of his statutory duty seems to me to constitute some degree of fault that "was an indispensable [contributing] factor in producing the harm" to officer Blanchard. Touchard , 617 So.2d at 890. Thus, Hicks may be responsible for some percent of Blanchard's damages and that determination can only be made by the fact finder after a trial on the merits. As to apportioning fault this court has said:

In Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La.1985), the supreme court identified factors to be considered when apportioning fault, explaining:
[V]arious factors may influence the degree of fault assigned, including: (1)whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Thibodeaux v. Comeaux , 11-127 p. 10 (La.App. 3 Cir. 6/15/11), 69 So.3d 674, 681-82.

For these reasons I respectfully disagree with the majority's affirmance of dismissal on summary judgment. I believe we should not engage in making such a far-reaching public policy decision in a summary judgment matter especially where the supreme court has yet to speak and has made at least some indication that it would rule differently. And I believe our modern notions of negligence and comparative fault also point to a different result than was reached in cases dating back to 1967. Such significant public policy decisions should be made only after a full trial on the merits, especially in such cases as these where our modern negligence law directs that such determinations regarding duty risk and comparative fault depend upon each case's unique factual circumstances. Defendants are not entitled to summary judgment as a matter of law. How can any court grant summary judgment as a matter of law when the law on the subject is wholly unresolved? For these reasons I respectfully dissent.

      Louisiana Code of Civil Procedure Article 967(B) states:
      When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

      "No person driving or in charge of any motor vehicle shall permit it to stand unattended without first stopping the motor, locking the ignition, removing the key, and effectively setting the brake thereon, and, when standing upon any grade, turning the front wheels to the curb or side of the highway."


author: BARNES, J., FOR THE COURT:

text:
    Wayne BOOTH, Appellant v. SOUTHERN HENS, INC., Appellee
    NO. 2016-CA-01068-COA
    Court of Appeals of Mississippi.
    February 13, 2018 Rehearing Denied June 5, 2018
    ATTORNEY FOR APPELLANT: ORVIS A. SHIYOU JR.
    ATTORNEY FOR APPELLEE: MARK EDWARD NORTON
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Wayne Booth appeals the Circuit Court of Jones County's grant of summary judgment to Southern Hens Inc. Booth was a truck driver employed by Whitestone Trucking, which was an independent-contract hauler for products made by Southern Hens. Booth sued Southern Hens for negligence, gross negligence, and failure to supervise for injuries stemming from a horseplaying incident where an employee of Southern Hens "bear hugged" Booth and threw him into some pallets at work. Finding no error, we affirm the circuit court's judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On October 30, 2012, Booth, working as a truck driver for Whitestone, went to Southern Hens to pick up a trailer. After checking in and hooking up the trailer, Booth went to the shipping office. While waiting on paperwork, Jerome (A.J.) Caldwell, an employee of Southern Hens, grabbed Booth from behind his midsection in a "bear hug." Booth tried to get loose but could not. Booth claimed a supervisor, Rod, said something to the effect of "give it up" and "he got you dog" to Booth. Then Booth contended that Caldwell slung him against some boxes and pushed him through a doorway onto a stack of pallets. When Booth was able to get up and reenter the shipping area, Booth said Rod and other Southern Hens employees were laughing and joking about the incident. Booth was told that Caldwell was "just playing." However, Booth claimed that Caldwell's actions caused serious injuries to his back that required medical treatment. Further, Booth claimed he was unable to return to work due to the injuries. Caldwell was terminated as a result of the incident.

¶ 3. On April 8, 2013, Booth sued Southern Hens, claiming negligence and failure to supervise; Southern Hens failed to exercise reasonable care and control over its employees resulting in Booth's injuries. In May 2016, Southern Hens filed a motion for summary judgment, arguing that the horseplay incident was not "an authorized act within the scope of [Caldwell's] employment," Southern Hens specifically prohibited these acts, and it had no reason to believe Caldwell would engage in this conduct. Southern Hens concluded that it could not be held vicariously liable for Caldwell's actions.

¶ 4. The circuit court agreed, focusing on the claim of negligent failure to supervise. The court found that the on-duty supervisor, Rod, had no reason to anticipate that Caldwell would behave in such a sudden, violent manner. Further, the court found no evidence Southern Hens had actual or constructive knowledge that Caldwell had any dangerous or violent tendencies. Accordingly, there was no genuine issue of material fact for any negligence claim, and summary judgment was granted for Southern Hens. Booth appeals.

STANDARD OF REVIEW

¶ 5. The standard of review for a trial court's grant or denial of summary judgment is de novo, viewing the evidence in the light most favorable to the nonmoving party. Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013) (citation omitted). Summary judgment is proper "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 any material fact and that the moving party is entitled to a judgment as a matter of law." Id. at (¶ 10) (quoting M.R.C.P. 56(c) ). Once made, the party opposing summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." Id. (quoting M.R.C.P. 56(e) ).

ANALYSIS

¶ 6. Booth argues there were genuine issues of material fact about whether Caldwell was acting in the course and scope of his employment during the incident. Also, Booth argues Southern Hens failed to supervise its employees, thereby breaching a duty, which caused injury to Booth. We shall discuss each issue in turn.

I. Course and Scope of Employment

¶ 7. Booth argues there were genuine issues of material fact as to whether Caldwell was acting within the course and scope of his employment with Southern Hens when he bear-hugged Booth and shoved him into the pallets.

¶ 8. It is well established that under the doctrine of respondeat superior, an employer is liable for an employee's acts done in the course and scope of his employment and in furtherance of the employer's business. Children's Med. Grp. P.A. v. Phillips , 940 So.2d 931, 935 (¶ 13) (Miss. 2006) (citation omitted). Conduct of an employee falls within the scope of employment if:

(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

Id. (quoting Restatement (2d) of Agency § 228(1) (1958) ). Alternatively, an employee's conduct is not considered in the course and scope of employment "if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the [employer]." Id. (quoting Restatement (2d) of Agency § 228(2) ). Moreover, an employer is not liable for the "wrongful deed" of his employee if, "when the wrongful act was committed, [the employee] had abandoned his employment and gone about some purpose of his own not incident to his employment."

Partridge v. Harvey , 805 So.2d 668, 670 (¶ 5) (Miss. Ct. App. 2002) (quoting Horton v. Jones , 208 Miss. 257, 261, 44 So.2d 397, 399 (1950) ).

¶ 9. The trial court correctly found Caldwell's conduct in bear-hugging Booth and shoving him into a stack of pallets was outside the course and scope of Caldwell's employment at Southern Hens. Caldwell's actions were not performed as a means to accomplish the purposes of his employment-loading and unloading shipments; therefore, there was no genuine issue of material fact regarding any claim of negligence.

¶ 10. Initially, Booth argues that he, as an invitee, was properly present and performing his duties for Whitestone when the incident occurred; he was not separated from Southern Hens by the incident. However, Caldwell's conduct is at issue, not Booth's. Booth then claims that there is a question of fact as to whether Caldwell stepped outside the scope of his employment during the incident.

¶ 11. We are not persuaded by Booth's argument. At the time of the incident, Caldwell was a laborer in the shipping department for Southern Hens, loading and unloading shipments. Bear-hugging and shoving a truck driver is conduct outside of his job. Further, it was unauthorized horseplay or physical assault prohibited by Southern Hens' employment rules. Accordingly, the incident was not within the course and scope of Caldwell's employment; thus, Southern Hens cannot be liable for it.

II. Failure to Supervise

¶ 12. Booth next argues that Southern Hens had a duty to supervise Caldwell, and failed to do so, thereby causing injury to Booth.

¶ 13. "[A] premises owner must employ reasonable care to protect an invitee from 'reasonably foreseeable injuries at the hands of another.' " Stribling v. Rushing's Inc. , 115 So.3d 103, 105 (¶ 9) (Miss. Ct. App. 2013) (citations omitted). An assault on the premises of a business is reasonably foreseeable if the defendant had "(1) actual or constructive knowledge of the assailant's violent nature, or (2) actual or constructive knowledge an atmosphere of violence existed on the premises." Id. at (¶ 10)."[S]pecific evidence of an employer's actual or constructive knowledge of its employee's dangerous or violent tendencies is necessary in order to create a genuine issue of material fact on an improper training or supervision theory of liability." Holmes v. Campbell Props. Inc. , 47 So.3d 721, 729 (¶ 27) (Miss. Ct. App. 2010).

¶ 14. Here, the trial court found no genuine issue of material fact that Southern Hens had actual or constructive knowledge of any dangerous tendencies of Caldwell, or that it failed to supervise Caldwell. We agree and, like the trial court, find instructive this Court's decision in Holmes . There, a customer at a car wash was beaten in the head by an employee of the car wash after calling the employee a "weak bit-." The customer later died of his injuries. Id. at 723 (¶ 3). The customer's estate sued under various torts, including premises-liability and failure-to-train claims. Id. at (¶ 4). This Court affirmed summary judgment for the car-wash company. Id. at (¶ 2). For the premises-liability claim, the car-wash company had no reason to believe its employee would ever be dangerous, and no evidence was offered to the contrary. Id. at 725 (¶ 15). Additionally, under the failure-to-train claim, the assault was not reasonably foreseeable because it occurred within a matter of seconds. Evidence showed the incident happened without warning, and the car-wash management "had no reason to know or anticipate its employee would behave in such a violent manner." Nor was there any knowledge that an atmosphere of violence existed at the car wash. Id. at 729 (¶ 28).

¶ 15. Here, there is no evidence that either Southern Hens or Rod, the on-duty supervisor in the shipping department, had any reason to anticipate Caldwell's violent actions. The incident was without warning and occurred in a matter of seconds. Further, Caldwell had no history of dangerous or violent tendencies at work, nor was there any evidence presented that the atmosphere at Southern Hens was violent.

¶ 16. Booth claims that Rod had knowledge of what was happening but failed to take action against it; Rod had ample time to intervene, and instead of telling Caldwell to "give it up," he should have said "stop." However, in Booth's deposition, he stated at the time he thought Caldwell was just "teasing" and "playing," and nothing like this incident had occurred before with Caldwell. Further, the record shows the incident occurred rapidly. Moreover, Rod's statement to "give it up" could be interpreted as saying "stop." Caldwell was fully aware that the general safety rules of Southern Hens specifically prohibited fighting, physically threatening others, "horseplay," and practical joking. He also signed an orientation checklist stating he understood "horseplay" was "not tolerated." This evidence does not indicate a failure to train or supervise.

¶ 17. Accordingly, we affirm the trial court's grant of summary judgment in favor of Southern Hens.

¶ 18. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      The circuit court granted a motion to intervene, filed by Mississippi Trucking Food & Fuel, a self-insured workers' compensation fund authorized by legislation. Whitestone secured workers' compensation coverage through the fund, and as of March 2014 the fund had paid Booth $19,213.92 in indemnity benefits and $15,528.04 in medical expenses and benefits. The fund also continued paying medical benefits as they became due. In the motion, the fund requested reimbursement from any recovery proceeds from Booth's lawsuit.

      Failure-to-train and failure-to-supervise claims are both negligence based and analyzed in the same manner. Holmes , 47 So.3d at 726 n.7, 729 (¶ 27).

      This Court distinguished the Fifth's Circuit decision in Foradori v. Harris , 523 F.3d 477 (5th Cir. 2008), cited by the appellant in Holmes in support of her argument. In Foradori , the Court affirmed the district court submitting to the jury the negligence claim of failure to train, supervise, or regulate employees. Id. at 491, 494-97. A verbal argument occurred inside a restaurant between an off-duty employee and customer. The lengthy argument was witnessed by the restaurant manager; however, "[s]he did not investigate, intervene, or exercise her authority to control the off-duty workers and protect [the customer] from harm." Instead, she asked the employee and customer to go outside, where the customer was punched and fell, breaking his neck and severing his spine. Id. at 482.