text:
    Donna BRISTOL & Sylvester Bristol, Sr., individually and on behalf of their Deceased Minor Child, Sylvester Bristol, Jr. v. GONZALES POLICE DEPARTMENT, City of Gonzales, and the Department of Public Safety and Corrections/Louisiana State Police
    Barbara Dabney, Brett Dabney, Shannon Bowers, Kimberly McKnight and Lawrence W. McKnight, Jr., individually and on behalf of their Minor Child, Kayla McKnight v. Safeway Insurance Company, Donna Carter, individually and on behalf of the Estate of her Minor Child, Sylvester Bristol, City of Gonzales, Gonzales Police Department, Parish of Ascension, Louisiana State Police Department, and State of Louisiana through the Department of Transportation and Development
    Tyrone Johnson and Latoria Singleton on behalf of their minor child, Ta'Ryan Singleton v. Sylvester Bristol, Donna Carter Bristol, Safeway Insurance Company of Louisiana, Louisiana State Police, John Doe, and State of Louisiana
    NO. 2017 CA 0675 No. 2017 CA 0676 No. 2017 CA 0677
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 21, 2017
    Sean D. Fagan, Locke Meredith, Baton Rouge, LA, Attorneys for Plaintiffs-Appellants, Barbara Dabney, et al.
    Peter "Q" John, Baton Rouge, LA, Attorney for Plaintiffs-Appellees, Donna Bristol, et al.
    Lana D. Crump, Bradley C. Myers, Katie D. Bell, Baton Rouge, LA, Attorneys for Defendant-Appellee, City of Gonzales
    Jeff Landry, Attorney General, Stacey A. Moak, Special Assistant Attorney General, Christopher W. Stidham, Breann Crane, Assistant Attorneys General Baton Rouge, LA, Attorneys for Defendant-Appellee, the State of Louisiana, through the Department of Public Safety and Corrections, Louisiana State Police
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

These consolidated matters arose out of a high-speed police pursuit that resulted in a fatal crash. The plaintiffs appeal the dismissal of their personal injury claims following a seven-day jury trial that culminated in a jury verdict finding no liability on the part of the sole remaining defendant, the Louisiana State Police.

FACTS AND PROCEDURAL HISTORY

On March 7, 2004, a fourteen-year-old unlicensed young man, Sylvester Bristol, Jr. ("Sylvester"), was driving his mother's Oldsmobile in Gonzales, Louisiana. It was approximately 7:54 p.m., when Sylvester was stopped behind a few other vehicles in the left turn lane at an intersection on northbound Airline Highway. While stopped at the intersection, Officer Duane Carpenter of the City of Gonzales Police Department ("the City") observed that the Oldsmobile did not have its headlights activated. When the stoplight turned green and the Oldsmobile had cleared the intersection, Officer Carpenter moved in behind the Oldsmobile and turned on the blue overhead lights on his police car. Sylvester continued to drive without slowing, stopping, or pulling over.

While following the Oldsmobile around various streets throughout Gonzales, Officer Carpenter requested information about the vehicle's license plate from the City's dispatch. He was informed that the vehicle had not been reported stolen. He also learned that the Oldsmobile was registered to Donna Carter Bristol, but Officer Carpenter had no idea who was actually driving the vehicle. When it was apparent that Sylvester was not stopping, that he was driving in the center of the road at times, and that he was driving through several stop signs and red lights without stopping, all without headlights turned on, Officer Carpenter decided to activate his siren, and persist in his pursuit of the Oldsmobile. Additionally, Officer Carpenter notified the City's dispatch that the ongoing pursuit was headed toward Interstate 10 ("I-10"). At that point, Officer Carpenter requested the assistance of the Louisiana State Police ("LSP"). At approximately 7:59 p.m., Sylvester entered I-10 and began speeding westbound toward Baton Rouge without his headlights on, even though it was dark outside.

Once Sylvester was driving on I-10, the City's police officers slowed to allow the LSP to take over the pursuit around the Highland Road entrance to I-10. State Troopers attempted to put down a spike strip across the interstate ahead of the Highland Road interchange, but they failed to get set up before Sylvester passed by. At approximately 8:04 p.m., Trooper Matthew Sinanan pulled onto I-10 westbound at the Highland Road entrance ramp, with his blue overhead lights and siren activated. Trooper Sinanan was able to position himself in front of Sylvester's vehicle in an attempt to slow the Oldsmobile down. According to the trooper at that point in the pursuit on I-10, their speeds ranged anywhere from 80-100 miles per hour and all the while, Sylvester repeatedly attempted to pass Trooper Sinanan. The trooper maneuvered back and forth between lanes to prevent Sylvester's passage. Suddenly Sylvester drove onto the grassy median between the eastbound and westbound lanes, in an apparent move to pass Trooper Sinanan. While driving in the median at a slower speed, somewhere between 50-70 miles per hour, the trooper observed Sylvester moving his hands back and forth. He also made direct eye contact with Trooper Sinanan before grabbing the Oldsmobile's steering wheel and seemingly intentionally jerking the vehicle back to the right and onto the travel surface of I-10. In doing so, the Oldsmobile sideswiped the back driver's side of Trooper Sinanan's vehicle, causing the trooper to slow down long enough to allow Sylvester to pull ahead.

Meanwhile, Trooper Henry Reavis, entered I-10 eastbound at Highland Road and performed a U-turn on the east side of the interstate to join the pursuit of the Oldsmobile. Trooper Reavis also had his blue overhead lights and siren activated as he passed the City's officers, Trooper Sinanan, and Sylvester, to take the lead in an attempt to slow the Oldsmobile down. Trooper Sinanan followed 5-6 car lengths behind Sylvester. The Oldsmobile continued to erratically swerve from side to side in the travel lanes, until Trooper Reavis made the decision to allow Sylvester to pass him. Trooper Reavis persisted in the pursuit, however, he did so by following Sylvester closely rather than trying to regain the lead. At this point in the pursuit, the speeds ranged anywhere from 60-100 miles per hour, with Sylvester flashing his lights for other cars ahead of him to move out of his way. Just prior to the Siegen Lane exit on I-10, Sylvester slammed on his brakes, causing Trooper Reavis's vehicle to collide with the rear of the Oldsmobile. Sylvester then faked an exit at Siegen Lane, but he remained speeding on I-10 toward the city of Baton Rouge. Just after the Siegen Lane exit, Sylvester slammed on his brakes a second time, causing another impact with Trooper Reavis, who was following within 1-2 car lengths behind the Oldsmobile at that particular time.

A mere 13 minutes after the pursuit began in Gonzales, and 3-4 minutes after the LSP became involved in the pursuit, the Oldsmobile reached the Bluebonnet exit on I-10 westbound. Sylvester once again faked an exit at Bluebonnet, but then he made an abrupt left turn in front of Trooper Reavis and crossed into the median headed directly for the eastbound lane of I-10, as if he were attempting a U-turn to head back toward Gonzales on the interstate. At the exact same time that Sylvester was entering the median and then the eastbound lane of I-10, a Chevrolet Impala driven by Kimberly McKnight, was headed eastbound on I-10 toward New Orleans, approaching the Bluebonnet interchange at a speed of approximately 65-70 miles per hour. Kimberly's vehicle contained seven passengers, who were all headed home from a family wedding. At some point in the median, Sylvester lost control of the Oldsmobile, causing the Oldsmobile to rotate clockwise at a high rate of speed (approximately 60-70 miles per hour) into the oncoming path of Kimberly's vehicle. The Oldsmobile was broad-sided on the driver's side door and Sylvester died upon impact. All of the passengers in Kimberly's vehicle were severely injured.

Following the accident, three lawsuits were filed, all seeking damages for bodily injuries. Kimberly and her various passengers filed two of the lawsuits, and one of the lawsuits was filed by Sylvester's parents. All three lawsuits were consolidated for trial, but by the time the jury trial occurred ten years later, in September 2015, the only remaining defendants were the City and the LSP. After the fourth day of trial, the City reached a settlement agreement with the plaintiffs and the City was dismissed. At the conclusion of the trial, the jury returned a verdict in favor of the LSP, finding no liability because it determined that the LSP had not been grossly negligent during the pursuit of Sylvester. A judgment in favor of the LSP was signed by the trial court on October 6, 2015. The plaintiffs moved for a new trial, but it was denied. Not all of the plaintiffs filed a motion for appeal; however, the Dabney plaintiffs (Barbara Dabney, Shannon Bowers, Lawrence and Kimberly McKnight, individually and on behalf of their minor child, Kayla McKnight, and Ta'Ryan Singleton) appealed the judgment dismissing their personal injury claims that was rendered in accordance with the jury's verdict.

ASSIGNMENTS OF ERROR

The Dabney plaintiffs contend that the trial court erred by instructing the jury that the applicable standard of care from La. R.S. 32:24 was "gross negligence/reckless disregard" and, alternatively, that the jury erred by not finding that the LSP was grossly negligent in the pursuit of Sylvester. The Dabney plaintiffs also urge that the trial court erred in failing to grant a mistrial when one of the LSP's witnesses mentioned that a child was unrestrained in Kimberly's vehicle, apparently in violation of a prior motion in limine ruling. Finally, the Dabney plaintiffs assign error to the trial court's exclusion of testimony by Colonel Terry Landry, a witness who would have ostensibly opined about several procedural violations on the part of the LSP during the pursuit of Sylvester.

LAW AND ANALYSIS

Interpretation of La. R.S. 32:24

Louisiana Revised Statute 32:24 is known as the emergency vehicle exception to the Louisiana Highway Regulatory Act. The purpose of this statute is to provide a qualified statutory immunity from liability to drivers of emergency vehicles, under very specific circumstances. See Rabalais v. Nash, 2006-0999 (La. 3/9/07), 952 So.2d 653, 662. The statute, with emphasis added, provides as follows:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
(1) Park or stand, irrespective of the provisions of this Chapter.
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation.
(3) Exceed the maximum speed limits so long as he does not endanger life or property.
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible or visual signals, including the use of a peace officer cycle rider's whistle, sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others.

This statute has been interpreted numerous times; however, the most definitive and most-cited interpretation, was made by the Louisiana Supreme Court in Lenard v. Dilley, 2001-1522 (La. 1/15/02), 805 So.2d 175, 178-79. In Lenard, 805 So.2d at 178, the supreme court reiterated the well-known concept that the starting point for the interpretation of any statute is the language of the statute itself. The supreme court went on to examine each section of the statute, and outlined the circumstances in which the driver of an emergency vehicle is granted particular driving privileges, also known as a qualified immunity. See Lenard, 805 So.2d at 179. In the case sub judice, the pertinent circumstances for the LSP's possible privilege/immunity involve their response to an emergency call (by the City) and the pursuit of an actual or suspected violator of the law (as indicated by the City and then observed by the LSP). See La. R.S. 32:24(A). In Lenard, the supreme court also described the privileges granted to an emergency vehicle driver, when the driver's actions fit the circumstances outlined in subsection (B) of the statute. Those privileges allow an emergency vehicle driver to park, proceed past red or stop signals (after slowing down or stopping as may be necessary for safe operations), exceed the maximum speed limits so long as the driver does not endanger life or property, and disregard regulations governing the direction or movement or turning in specified directions. Id. Additionally, the supreme court stated that the exceptions apply only when the authorized emergency vehicle's driver makes use of audible or visual signals sufficient to warn motorists of their approach. Id.See La. R.S. 32:24(C).

The question to focus on then, is what standard of care is to be applied to an emergency vehicle driver who qualifies under the provisions subsections (A) through (C) of La. R.S. 32:24. Lenard, 805 So.2d at 179. The standard of care is found in subsection (D) of the statute. The driver of an authorized emergency vehicle is not relieved from the duty to drive with due regard for the safety of all persons, nor is the driver protected from the consequences of his reckless disregard for the safety of others. The supreme court noted that it is the use of "due regard" and "reckless disregard" in the same sentence, which has caused confusion. Id. The supreme court then clarified that La. R.S. 32:24(D) sets out two standards of care for an emergency vehicle driver depending on the circumstances of the case. If, and only if, an emergency vehicle driver's actions fit into subsections (A), (B), and (C) of La. R.S. 32:24, will an emergency vehicle driver be held liable only for actions which constitute "reckless disregard" for the safety of others (also known as "gross negligence" or the want of even the slightest care and diligence). In contrast, if the driver's conduct does not fit into those subsections, then the emergency vehicle driver's actions will be determined by a standard of "due care," (which is synonymous with ordinary negligence). Lenard, 805 So.2d at 180.

The legislature has obviously recognized the high social value and premium placed on protection and rescue efforts by drivers of emergency vehicles, and has set forth those circumstances where the "reckless disregard" standard of care applies. Lenard, 805 So.2d at 180. Applying an ordinary negligence standard to emergency vehicle drivers in all cases would restrict the effectiveness of individuals responding to emergency situations and would unduly restrain emergency vehicle drivers from performing a vital role in society. Id. However, the supreme court correspondingly recognized that applying a reckless disregard standard in all situations would be problematic and could endanger public safety. Id. , 805 So.2d at 180-81. That is why there is a dual standard of care, depending upon the circumstances. Whether or not the conduct of an emergency vehicle driver should be gauged by a reckless disregard or ordinary negligence standard, is "a question to be determined by the jury after being instructed on the law. " Id. , 805 So.2d at 181 (Emphasis added).

In the instant case, the trial court, over the objection of the plaintiffs, gave a jury instruction consistent with the "reckless disregard for the safety of others" under the totality of the circumstances. Likewise, the jury's verdict form included the first question: "Do you find that [the LSP] were grossly negligent in that they acted with reckless disregard for the safety of others on March 7, 2004?" The jury answered "No" in a 10-2 vote. After that decision was made, no further determination was necessary by the jury, and the plaintiffs' claims were dismissed by the trial court in a judgment rendered in accordance with the jury verdict. The plaintiffs filed a motion for new trial arguing that the trial court gave an erroneous jury instruction on the standard of care, but the motion was denied.

Now on appeal, the Dabney plaintiffs argue again that the trial court gave an erroneous jury instruction concerning the applicable standard of care. The LSP, in contrast, contends that the undisputed evidence presented at trial supported the criteria for the reckless disregard standard. However, based on the directive from the Louisiana Supreme Court in Lenard, we must agree with the Dabney plaintiffs. We conclude that the jury instruction concerning the LSP's standard of care was inadequate in that it improperly removed the determination of the standard of care from the jury. See Lenard, 805 So.2d at 181. The standard of care in this case is a factual question that should have been determined by the jury based on the evidence.

Inasmuch as the application of the incorrect standard of care interdicts the jury's fact finding process as to liability, we conclude that we must perform a de novo review. See Lachico v. First Nat. Bank Shares, Inc. , 95-2124 (La. App. 1st Cir. 4/30/96), 673 So.2d 305, 308. When an appellate court has all of the facts before it from a complete trial court record, a trial court's erroneous jury instruction does not warrant a remand for a new trial. See Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163, 165 (1975). Further, it is only when a view of the witnesses is essential to a fair resolution of conflicting evidence should the case be remanded for a new trial. Jones v. Black , 95-2530 (La. 6/28/96), 676 So.2d 1067 (per curiam). In this case a complete trial court record exists, and physically observing the witnesses is not essential to a fair determination of the case. Thus, we will review the record de novo to determine whether the LSP is entitled to a qualified statutory immunity under the reckless disregard standard of care or whether a finding of liability is warranted due to a breach of ordinary negligence.

Our review of the evidence demonstrates a finding that the LSP troopers were engaged in the lawful pursuit of a driver who had violated multiple motor vehicle laws both before and after the LSP became involved in the pursuit. There is no conflicting evidence regarding Sylvester's erratic driving without headlights turned on, speeding, swerving into and out of the median, slamming on his brakes in front of the troopers, and refusing to stop, slow, or pull aside for the troopers who had their overhead lights and sirens engaged throughout the entire pursuit. The record further establishes that Sylvester had multiple opportunities to slow or stop the Oldsmobile throughout the entire 13 minutes that he was being pursued, but he inexplicably chose not to stop.

The testimony of each law enforcement officer involved in the pursuit was similar in that they all indicated that they would have conducted themselves in the same manner if faced with another situation analogous to the pursuit of Sylvester, because Sylvester intentionally placed the public, the police, and himself in danger by erratically fleeing from law enforcement officers. Trooper Craig Jewell, who was a sergeant with the LSP Troop A responding to the incident and was ultimately in charge of the pursuit that night, testified that the LSP did not initiate the pursuit of Sylvester. He explained that the LSP continued the pursuit after the City requested the LSP's assistance. Trooper Jewell emphasized that the continuance of the pursuit was justified since Sylvester would not stop, he was not using his headlights, he had collided with troopers' vehicles, and the situation was escalating as Sylvester erratically sped toward Baton Rouge.

The record reveals competing expert testimony. The plaintiffs offered an expert in traffic accident reconstruction and police emergency vehicle driving, John Painter, who testified that the LSP were negligent in their pursuit of Sylvester in that they followed him too closely for such high rates of speed and they were too aggressive when they pulled in front of Sylvester at various points in the pursuit. In other words, Mr. Painter explained that the LSP should have backed off and followed Sylvester instead of trying to force him to slow or stop. In Mr. Painter's opinion, there was no way of knowing what caused Sylvester to lose control, and it was possible that contact between Trooper Reavis and Sylvester caused the Oldsmobile to go off into the median and the oncoming lane of traffic. Mr. Painter stated that the troopers did not follow their own pursuit training by attempting to slow Sylvester with a moving roadblock maneuver without permission from a supervisor, and they never reported the collisions between Sylvester's vehicle and the troopers' vehicles. Contrary to the evidence in the record, Mr. Painter also testified that Sylvester only began to speed and make dangerous movements when the LSP became involved in the pursuit. However, the record reveals that the LSP troopers and the City police officers involved in the pursuit, unanimously indicated that Sylvester began to speed, without headlights on, once he entered I-10, while he was being pursued by law enforcement officers several miles before the LSP became involved at Highland Road. Prior to entering I-10, Sylvester was also driving dangerously by running stop signs, driving through red lights, driving in the center of the road, and he was doing all of those dangerous maneuvers without his headlights activated.

The LSP offered three expert witnesses. The first expert witness was Stephen Allen Irwin, who was accepted as an expert in accident reconstruction. Mr. Irwin was of the opinion that the most probable cause for Sylvester leaving the interstate and colliding with the other vehicle was due to his own steering maneuvers, and had nothing to do with any prior impact with the LSP vehicles.

The second expert witness for the LSP was Chris Sutterfield, who was accepted as an expert in the field of police pursuit policy. Mr. Sutterfield opined that the LSP troopers' actions in this pursuit were consistent with officers engaged in attempting to apprehend a violator of the law, and that their actions that night were reasonable under the circumstances. After the request for assistance came in from the City, Mr. Sutterfield testified that it was appropriate for the LSP to join the pursuit on the interstate, because the driver of the Oldsmobile was eluding police, which is a reasonable reason to continue the pursuit. Furthermore, because the Oldsmobile did not have headlights turned on, Mr. Sutterfield stated that it was appropriate for the LSP troopers to get in front of the Oldsmobile in order to warn other motorists and to attempt to slow the violator. Mr. Sutterfield continued by stating that fleeing police on an interstate at night, without headlights, is a danger to the public and constitutes reckless behavior. Mr. Sutterfield testified that Sylvester was in complete control of the pursuit and the ultimate decision of whether or not to pull over. Mr. Sutterfield concluded that given the totality of the circumstances during the quick 4 minutes that the LSP were involved in the pursuit, the troopers acted reasonably, with no time to reflect on a different plan.

The LSP's third expert witness was a mechanical engineer, Larry Peterson, who was accepted as an expert in the field of automotive engineering. Mr. Peterson testified that Sylvester's vehicle was not knocked out of control by a trooper, so he disagreed with the plaintiffs' expert witness's assumptions and conclusions. Mr. Peterson concluded that all of the evidence pointed to no contact between Sylvester and Trooper Reavis near the Bluebonnet exit area where the collision with the other vehicle occurred.

Our exhaustive review of all the evidence reveals that the LSP was not responsible for this terrible and unfortunate accident. The LSP was entitled to have the higher standard of care applied in this case, because they were pursuing an actual violator of the law with the use of audible and visual signals that were sufficient to warn motorists of their approach. Furthermore, we find that the evidence viewed as a whole establishes that the LSP were not grossly negligent in that they did not show a "reckless disregard" for the safety of others in this pursuit that ended so tragically. Even taking the additional step of applying the ordinary negligence standard as the Dabney plaintiffs would have us do, we still conclude that the LSP and its troopers were not at fault for the accident. Instead, it was the decision of Sylvester to flee law enforcement officers in an erratic and dangerous fashion that was the sole cause of this accident. Sylvester placed himself, the public, and all involved law enforcement personnel in immediate danger by driving dangerously at high rates of speed without lights and without a license. We specifically find no evidence to support the Dabney plaintiffs' allegations that the troopers were negligent in following their own pursuit policies and procedures in this quick, high-speed pursuit. Simply put, the LSP troopers were not "grossly" or "ordinarily" negligent; they acted reasonably and did their job as they were trained to do in a highly dangerous situation. Therefore, we conclude that the immunity provided in the statute, La. R.S. 32:24, is applicable and relieves the troopers and the LSP of responsibility in this case.

Motion for Mistrial

In an alternative argument, the Dabney plaintiffs argue that the trial court erred in failing to grant the plaintiffs' motion for a mistrial after one of the law enforcement officers stated that upon arrival at the scene of the accident, he observed a trooper performing CPR on an unrestrained child. We note that the plaintiffs moved for a mistrial, which was denied by the trial court for lack of a showing of prejudice. The plaintiffs chose not to strike a juror, who during voir dire, indicated a potential bias concerning a person operating a vehicle carrying seven passengers, who obviously did not have seatbelt restraints for all of the passengers. However, the juror was questioned extensively about his potential bias and he indicated that he could follow the law and the trial court's instructions. The plaintiffs thought that the entire issue of seatbelt restraints would not be mentioned during the trial, after the trial court ruled on a motion in limine that such evidence would not be placed before the jury.

A trial court has great discretion in determining whether to grant a mistrial, since mistrials are not a matter of right. Estate of Cristadoro ex rel. Jones v. Gold-Kist, Inc. , 2001-0026 (La. App. 4th Cir. 1/23/02), 819 So.2d 1034, 1049, writ denied, 2002-1325 (La. 9/13/02), 824 So.2d 1171. Motions for mistrial should be granted upon proof of prejudicial misconduct occurring during a jury trial, which cannot be cured by admonition or instructions to the jury. Id. In the jury instructions offered in this case, the trial court specifically instructed the jurors to not consider evidence of the use or failure to use seatbelts or restraints, or any evidence concerning the number of occupants in any vehicle, in their determination of fault or damages. Because the jury was thoroughly instructed on the issue, we find no abuse of discretion in the trial court's denial of the plaintiffs' motion for mistrial.

Exclusion of Testimony by Witness

In their final assignment of error, the Dabney plaintiffs argue that the trial court erred when it excluded the testimony of a potential witness, Colonel Terry Landry, who was the Superintendent of the LSP from the years 2000 until 2004. The Dabney plaintiffs claim that Colonel Landry's testimony was relevant to the ultimate issue of whether the LSP caused or contributed to the cause of the accident, as well as the reasonableness of the troopers' actions in the pursuit of Sylvester in the context of trooper training and pursuit policy/procedure. The record reveals that the testimony of Colonel Landry was actually the subject of a pretrial Daubert/Foret Motion and Motion in Limine filed by the LSP to exclude the witness's expert opinions. The trial court granted the LSP's motion to exclude the testimony, because it found that Colonel Landry's report and deposition testimony did not reflect any opinion that the troopers had violated pursuit policies that caused the accident in question. Thus, the trial court determined that the testimony was irrelevant to the question of whether the troopers' conduct was reasonable in light of the totality of the circumstances, and would only serve to mislead and confuse the jury. Additionally, Colonel Landry acknowledged he lacked any specialized education in the area of police pursuits.

The standard of review for evidentiary rulings of a trial court is abuse of discretion, and a trial court's ruling will not be disturbed unless it is clearly erroneous. See Devall v. Baton Rouge Fire Department , 2007-0156 (La. App. 1st Cir. 11/2/07), 979 So.2d 500, 503. See also Brandt v. Engle , 2000-3416 (La. 6/29/01), 791 So.2d 614, 620-621. Further, the trial court's decision to admit or exclude potential expert testimony is within the sound discretion of the trial court, and its judgment will not be disturbed by an appellate court unless it is clearly erroneous. La. Code Evid. art. 702, comment (d); Devall , 979 So.2d at 503. Notably, the plaintiffs did not make a proffer of the disputed testimony at trial, which would have allowed this court additional information to review the trial court's ruling. Based on our review of the record, we do not find that the trial court clearly erred in excluding the testimony of Colonel Landry, who apparently would have provided the jury with his personal opinion about what he would have done in the same situation while employed with the LPS.

CONCLUSION

In finding no liability on the part of the LSP, we hereby affirm the trial court's judgment rendered in accordance with the jury's verdict that dismissed the Dabney plaintiffs' claims with prejudice. All costs of these consolidated appeals are assessed to the Dabney plaintiffs.

AFFIRMED.

      Sylvester's mother, Donna Carter Bristol, filed a motion for appeal, but no appeal was granted or docketed on her behalf, and she did not file any brief in this court.

      The trial court's instructions regarding the duty imposed on the LSP in this case was actually quite lengthy:
      When in pursuit of a suspected violator of the law, drivers of emergency vehicles or law enforcement officers may be held liable only if they exhibit reckless disregard for the safety of others. This statute does not relieve law enforcement officers from the duty to drive with due regard for the safety of all persons, nor shall this statute protect law enforcement officers from the consequences of his reckless disregard for the safety of others. Reckless disregard requires conduct that is more severe than ordinary negligent conduct. Conduct that amounts to a reckless disregard for the safety of others, in effect, is gross negligence, and gross negligence is defined as the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise. That is the standard of care applicable to this case, and in order for the plaintiffs to prevail on the element of fault, they must prove by a preponderance of the evidence that the defendant law enforcement officers were grossly negligent in the pursuit of [Sylvester's] vehicle or that their conduct amounted to a reckless disregard for the safety of others. When determining whether a police officer breached his duty to a particular plaintiff, the determining fact is not whether the officer complied with or violated departmental policy, but rather, this fact may be considered when determining whether the police officers' [actions] constituted a reckless disregard for the safety of others under the totality of circumstances.

      We acknowledge that in many cases, the determination of whether a duty exists under a particular set of circumstances is ordinarily a mixed issue of law and fact. The determination of the standard of care to which the defendant must be held is often a question of law, although its legal formulation is guided by proved facts. Once the applicable standard of care has been established, negligence is a question of fact, which must be determined on a case-by-case basis according to the particular facts and circumstances that are presented. See Deleo v. Bayou Lafourche Fresh Water Dist. , 2002-0513 (La. App. 1st Cir. 2/14/03), 846 So.2d 17, 21, writ denied, 2003-0695 (La. 5/16/03), 843 So.2d 1132. However, when it comes to the standard of care for emergency vehicle drivers, the supreme court has expressly stated that it is a question to be determined by the jury/factfinder. See Lenard , 805 So.2d at 181.

      Drivers are required to yield the right-of-way, immediately drive to the side of the road, and stop upon the immediate approach of authorized emergency vehicles making use of audible or visual signals. See La. R.S. 32:125(A). This duty arises when a motorist observes or hears, or under the circumstances should have observed or heard, the audible or visual warnings. Griffin v. City of Monroe , 46,229 (La. App. 2d Cir. 4/13/11), 61 So.3d 846, 850.

      See Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 2795-2799, 125 L.Ed.2d 469 (1993), and State v. Foret , 628 So.2d 1116, 1121-1123 (La. 1993), for the guidelines for admissibility of an expert's opinions.


source: Caselaw Access Project

author: WHIPPLE, C.J.

license: Public Domain

text:
    Tracy LEE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    2017 CA 0740
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    G. Ben Cohen, Nishi L. Kumar, New Orleans, Louisiana, Counsel for Plaintiff/Appellee Tracy Lee
    Terri L. Cannon, Angola, Louisiana, Heather Hood, Baton Rouge, LA, Counsel for Defendant/Appellant Louisiana Department of Public Safety and Corrections
    BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ.
   WHIPPLE, C.J.

Defendant, the Louisiana Department of Public Safety and Corrections ("the Department"), appeals a judgment of the district court, which reversed an earlier final decision of the Department in an administrative proceeding, wherein inmate Tracy Lee challenged the Department's rejection of four books received by Lee through the prison mailroom on the basis that the books contained sexually explicit material. For the following reasons, we reverse the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

Tracy Lee is an inmate in the custody of the Department who is housed on death row at the Louisiana State Penitentiary ("LSP") located in Angola, Louisiana. Lee filed a grievance in accordance with the Corrections Administrative Remedy Procedure Act, LSA-R.S. 15:1171, et seq. , contending that the LSP erroneously rejected four books mailed to him on the stated basis that the publications contain nudity or sexually explicit material. The Department rejected Lee's grievance, citing Department Regulation C-02-009 as prohibiting sexually explicit material in the interest of the safety of other inmates and staff.

Thereafter, Lee filed a petition for judicial review in the district court pursuant to LSA-R.S. 15:1177, seeking: (1) immediate delivery of the disputed publications; (2) a cease and desist order ordering the Department to cease the taking of any publications from death row inmates on the sole basis that the materials contain sexually explicit material in written form only ; and (3) an order holding the Department and its respective employees in contempt of court for their blatant disregard of prior court rulings that "definitively" decided the disputed issue herein. Lee attached two former commissioner recommendations and the related district court judgments, wherein the district court ordered the Department to release allegedly explicit publications, containing written words only, to death row inmates. In response to Lee's petition, the Department filed a general denial and attached the administrative record and excerpts from the four disputed books that were withheld by the Department.

Upon finding that the issues could be determined by brief in lieu of oral arguments, the commissioner reviewing the matter submitted a screening report to the district court, recommending that the Department's confiscation of publications from Lee should be reversed as arbitrary and in apparent violation of Lee's first amendment rights.

Thereafter, the Department filed a traversal to the commissioner's recommendation, discussing at length how Regulation No. C-02-009, governing the prohibition of sexual explicit material in both pictorial and written form, is reasonably related to legitimate penological interests, including the security of the penitentiary, even when applied to a death row inmate, and arguing that accordingly, any first amendment right that Lee might have to sexually explicit material must fall in light of these legitimate penological objectives. In support thereof, the Department attached a copy of Irish v. Cain, 2009-1738 (La. App. 1st Cir. 3/26/10), 2010 WL 1170355, wherein this court found that Regulation C-02-009 was reasonably related to the Department's legitimate penological interest and thus, the Department's mailroom employees did not abuse their discretion in rejecting five books sent to a death row inmate that contained depictions of nudity and sexually explicit conduct.

However, the district court thereafter rendered judgment in conformity with the commissioner's recommendation, reversing the Department's administrative decision as arbitrary and in violation of Lee's first amendment rights. The Department then filed the instant appeal, assigning the following as error:

(1.) The trial court erred in determining that the Department had no legitimate penological justification to disallow publications containing sexually explicit written words to a death row inmate.
(2.) The trial court erred in finding that the Department's decision was arbitrary and in violation of Lee's first amendment rights.
(3.) The trial court erred in assessing all costs to the Department.

DISCUSSION

Pursuant to the Corrections Administrative Remedy Procedure Act, LSA-R.S. 15:1171, et seq. , review of a decision by the Department made in the course of the Corrections Administrative Remedy Procedure shall be conducted by the court without a jury and shall be confined to the record. The review shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. Thus, under the statutory framework of the Corrections Administrative Remedy Procedure Act, the opportunity for the parties to present evidence occurs at the administrative level, not at the trial court level, and review by the trial court is limited to the record established at the administrative level, absent alleged irregularities in the procedure. Lightfoot v. Stalder, 2000-1120 (La. App. 1st Cir. 6/22/01), 808 So.2d 710, 715, writ denied, 2001-2295 (La. 8/30/02), 823 So.2d 957 ; LSA-R.S. 15:1177(A)(5).

The standard for judicial review by the district court is set forth, in pertinent part, in LSA-R.S. 15:1177(A)(9), which provides:

The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) In violation of constitutional or statutory provisions.
(b) In excess of the statutory authority of the agency.
(c) Made upon unlawful procedure.
(d) Affected by other error of law.
(e) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(f) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.

On review of the district court's judgment rendered on judicial review under LSA-R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. McCoy v. Stalder, 99-1747 (La. App. 1st Cir. 9/22/00), 770 So.2d 447, 450-451.

Thus, the issue before us is whether, under the facts of this case, the Department's enforcement of Regulation C-02-009 infringes on Lee's first amendment rights. When a prison regulation allegedly impinges on an inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). "[S]uch a standard is necessary if 'prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations.' Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration." [Citation omitted.] Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62.

Regulation C-02-009, effective March 20, 2012, regarding inmate mail and publications, promulgated in the Louisiana Administrative Code Title 22, Part, I, Section 313, provides, in pertinent part:

E. Definitions
* * *
Sexually Explicit Material -any book, pamphlet, magazine, or printed matter however reproduced, which contains any picture, photograph, drawing or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, sadomasochistic abuse, bestiality and homosexuality. Explicit sexual material also includes that which contains detailed verbal descriptions or narrative accounts of sexually explicit conduct. (A publication will not be prohibited solely because it contains pictorial nudity that has a medical, educational or anthropological purpose.)
* * *
G. Procedures for Publications
* * *
3. Refusal of Publications. Printed material shall only be refused if it interferes with legitimate penological objectives (including but not limited to deterrence of crime, rehabilitation of offenders, maintenance of internal/external security of an institution or maintenance of an environment free of sexual harassment), or if the refusal is necessary to prevent the commission of a crime or to protect the interests of crime victims. This would include but not be limited to the following described categories:
* * *
b) sexually explicit material:
i. it is well established in corrections that sexually explicit material causes operational concerns. It poses a threat to the security, good order and discipline of the institution and can facilitate criminal activity. Examples of the types of behavior that result from sexually explicit material include nonconsensual sex, sexual molestation of other offenders or staff, masturbation or exposing themselves in front of staff and inappropriate touching or writing to staff or other forms of sexual harassment of staff and/or offenders;
ii. sexually explicit material can portray women (or men) in dehumanizing, demeaning and submissive roles, which, within an institutional setting, can lead to disrespect and the sexual harassment of female (or male) correctional staff. Lack of respect
and control in dealing with offenders can endanger the lives and safety of staff and offenders;
iii. the viewing of sexually explicit material undermines the rehabilitation of offenders as it can encourage deviant, criminal sexual behavior. Additionally, once sexually explicit material enters an institution, it is impossible to control who may view it. When viewed by an incarcerated sex offender, it can undermine or interrupt rehabilitation efforts;
iv. publications that depict nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one time issues will not be allowed.
[Emphasis added.]

The Supreme Court in Turner set forth four factors to consider in determining the reasonableness of a prison regulation. First, there must be a "valid, rational connection"

between the prison regulation and the legitimate governmental interest put forward to justify it. Turner, 482 U.S. at 89, 107 S.Ct. at 2262. As explained by the court in Turner, "a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner, 482 U.S. at 89-90, 107 S.Ct. at 2262. The second factor is whether there are alternative means of exercising the right that remain open to prison inmates. Turner, 482 U.S, at 90, 107 S.Ct. at 2262. The third factor is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and the allocation of prison resources generally in the prison environment. Turner, 482 U.S. at 90, 107 S.Ct. at 2262. Under the fourth Turner factor, if an inmate can point to an alternative that fully accommodates the inmate's rights at de minimus cost to valid penological interests, a court may consider this as evidence that the regulation does not satisfy the reasonable relationship standard. Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262.

Citing Irish v. Cain, 2010 WL 1170355, the Department contends herein that this court has previously addressed and upheld the Department's withholding of sexually explicit material from death row inmates pursuant to Regulation C-02-009. Lee counters that Irish v. Cain is distinguishable because it involved sexually explicit pictures, whereas the instant case involves written materials only. Nevertheless, while Irish v. Cain may be distinguishable, the recent case of Taylor v. LeBlanc, 2013-0979 (La. App. 1st Cir. 2/10/14), 2014 WL 539104, writ denied, 2014-0707 (La. 1/23/15), 159 So.3d 455, which neither party has cited, presents almost identical facts and arguments.

In Taylor, an argument similar to that advanced by Lee was made by another inmate housed on death row at the LSP after the Department withheld two books from the inmate pursuant to Department Regulation C-02-009 because the written material was deemed to be sexually explicit. Taylor, 2014 WL 539104 at *3. In support of the Regulation and the withholding of the books, the Department in Taylor raised identical arguments to those advanced by the Department in the instant case. This court agreed with the Department, concluding that the Department's decision to withhold the books from the inmate was neither arbitrary, capricious, nor manifestly erroneous, nor was it in violation of the inmate's constitutional rights. Taylor, 2014 WL 539104 at *5.

In regard to the Turner factors, in Taylor, and in the instant case, the Department contended that Regulation C-02-009 satisfies the first Turner factor because the Regulation has legitimate penological objectives, including maintaining order, deterrence of crime, maintaining internal/external security of an institution, maintaining an environment free of sexual harassment, and providing the opportunity for rehabilitation of inmates. This court agreed, stating that "given the deference afforded to the professional judgment of prison administrators, we find that the Department has put forth a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Taylor, 2014 WL 539104 at *4. In regard to the second Turner factor, this court found that despite the regulation, prison inmates have alternative means of exercising their First Amendment rights, as the regulation does not preclude the inmate from having access to all reading materials and moreover, the Regulation provides that inmates can receive sexually explicit material if it has a medical, education, or anthropological purpose. Taylor, 2014 WL 539104 at *4. In regard to the third Turner factor, this court agreed with the Department's argument that the introduction of sexually explicit material into the prison population would have a "ripple effect," as there would be an inability to control who viewed the material, and thus accommodation of the inmate's asserted constitutional right would have a significant impact on guards, other inmates, and prison resources. Taylor, 2014 WL 539104 at *4. Accordingly, inasmuch as the facts and arguments in the instant case are substantially similar to those in Taylor, we see no reason to deviate from this court's prior conclusion with regard to the first, second, and third Turner factors as applied to prison Regulation C-02-009 and the withholding of written sexually explicit material from death row inmates.

As to the fourth Turner factor, the court in Taylor commented that the inmate did not identify any alternatives at a de minimis cost to the Department's penological interest that would accommodate his first amendment rights. Taylor, 2014 WL 539104 at *5. Here, Lee argues that a de minimis alternative does exist. Specifically, Lee contends that the Department could simply exclude death row inmates from the application of Regulation C-02-009 because there is no penological interest in rehabilitating death row inmates and moreover, the Department's alleged security concerns for death row inmates, if allowed access to sexually explicit written material, is "exaggerated." We disagree.

We find no basis or support for Lee's proposed alternative as, in sum, his proposed alternative would effectively allow those convicted of the most egregious crimes and sentenced to death to have access to sexually explicit material, while denying the rest of the prison population access to such materials, thereby favoring and rewarding the worst of the offenders amongst the prison population. Moreover, we find that the Department has a legitimate interest in rehabilitating prisoners not only for their potential return to society, but also as it pertains to their behavior while incarcerated. Thus, we are unable to say that there is no penological interest in rehabilitating death row inmates.

Additionally, the Department has discussed in detail the "ripple effect" on fellow inmates if death row inmates were permitted access to sexually explicit material without providing access to other inmates, including the likely transmission of such material beyond death row and the possibility that if lockdown inmates were permitted access to such material, such access could induce other inmates to engage in behaviors that may land them in extended lockdown areas. Accordingly, while Lee has proposed an alternative, it is not a rational alternative. Thus, we reject his claim that Regulation C-02-009 fails to satisfy "the reasonable relationship standard." See Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262.

Lee also cites LSA-R.S. 15:1177(A)(9)(e), which provides that the district court may reverse a decision of the Department that is "[a]rbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Lee contends that the Department has arbitrarily denied him access to the four disputed books at issue herein, when he has access to many other books that contain sexually written content, including the Bible. First, we note that Lee does not allege that other inmates have been allowed to receive the four books at issue herein that were withheld by the Department. See Taylor, 2014 WL 539104 at *5. While Lee has inserted in his brief excerpts from other books that are alleged to be sexually explicit, but still available to prisoners, these books and/or excerpts are not included in the record of this proceeding and present nothing for review. However, the record does contain twenty-plus pages from the four books at issue herein, which are replete with detailed verbal descriptions and narratives of nudity and sexual conduct. Based on the record before us, we are unable to conclude that the Department has acted arbitrarily in withholding these four books from Lee, while allowing him access to other books that purportedly contain equivalent sexually explicit material.

Lee further contends that the language of Regulation C-02-009 itself is so vague that it requires arbitrary enforcement, citing language from a district court commissioner's report. However, the regulation at issue herein does not simply state that "sexually explicit material" is prohibited; rather, the regulation attempts to define sexually explicit material. Thus, while defining what is, or is not, sexually explicit material may be difficult, it does not follow that any regulation of such material must be struck down as ambiguous and arbitrarily enforced.

Accordingly, considering our recent decision in Taylor, 2014 WL 539104, which upheld the regulation at issue herein against identical arguments of unconstitutionality, we perceive no reason to deviate from our prior ruling and likewise find that in applying the Turner factors to the facts of this case, Regulation C-02-009 is reasonably related to a legitimate penological interest. Likewise, from our review of the record, including excerpts from the disputed books, we are unable to say that the Department was arbitrary and capricious in finding that these books constitute "sexually explicit material" for purposes of Regulation C-02-009. Therefore, we find no error or abuse of discretion in the Department's determination that the four books at issue violate Regulation C-02-009. Thus, we agree with the Department that the books at issue were properly rejected by the LSP mailroom employees.

CONCLUSION

For the foregoing reasons, we reverse the April 17, 2017 judgment of the district court. We reinstate the Department's administrative decision, denying Mr. Lee's request for relief. All costs of this appeal are assessed against appellee, Tracy Lee.

REVERSED AND RENDERED.

      The four books at issue, namely Bared to You; Captivated by You; Entwined with You; and Reflected in You , were all authored by Sylvia Day.

      The judgments cited by Lee were rendered in George Brooks v. Cathy Roberts, et al, No. 510,030 (La. 19th Judicial District Court, 8/26/04), where the Commissioner therein relied on a similar lawsuit filed by the same inmate in federal court, Brooks v. Stalder, 98-396 (M.D. LA. 3/29/99), which found that there was no legitimate penological justification in disallowing the death row inmate access to the disputed publications because there was penological no interest in the rehabilitation of a death row inmate and security was not fostered by the restriction as death row inmates have no interaction with other inmates, and Hoffmann v. Stalder, et al, No. 555,610 (La. 19th Judicial District Court, 6/2/08).

      See George Brooks v. Cathy Roberts, et al, No. 510,030 (La. 19th Judicial District Court, 8/26/04).


author: THERIOT, J.

text:
    Flora and Richard TURNER v. Dr. Robert RABALAIS and ABC Insurance Company
    NO. 2017CA0741
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    John D. Sileo, Casey W. Moll, New Orleans, Louisiana, Counsel for Plaintiffs/Appellants, Flora and Richard Turner
    Lorraine P. McInnis, E. John Litchfield, New Orleans, Louisiana, Counsel for Defendant/Appellee, East Baton Rouge Medical Center, LLC d/b/a Ochsner Medical Center
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   THERIOT, J.

Flora and Richard Turner (collectively known as "Appellants") appeal the judgment of the Nineteenth Judicial District Court granting the motions for summary judgment filed by Robert David Rabalais, M.D. ("Dr. Rabalais") and East Baton Rouge Medical Center, L.L.C. d/b/a Ochsner Medical Center ("Ochsner"), and denying Appellants' motion for summary judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 28, 2013, Appellants filed a medical malpractice suit against Dr. Rabalais and ABC Insurance Company. Dr. Rabalais is a practicing physician in Baton Rouge, Louisiana; ABC Insurance Company is his insurer. In their petition, Appellants alleged that on July 24, 2012, Mr. Turner sought treatment from Dr. Rabalais because of pain in his left knee. According to Appellants, x-rays were ordered prior to Mr. Turner's visit with Dr. Rabalais. Appellants alleged that proper care was not used to transfer Mr. Turner from his mobile scooter to a walker when Mr. Turner was being x-rayed. Appellants further alleged that the walker given to Mr. Turner was too short, and that the combination of these actions resulted in Mr. Turner falling. According to Appellants, Dr. Rabalais reviewed the x-rays, which were taken after Mr. Turner's fall, found that there was nothing broken and/or that Mr. Turner was not severely injured, and released Mr. Turner.

Following his release, Mr. Turner returned home and stayed in his reclining chair for five days, but was in pain the entire time. Mr. Turner was brought to the emergency room at Ochsner, where additional x-rays confirmed that he had two broken bones in his leg. As a result of the broken bones, Mr. Turner was admitted to the hospital for a few days and then released. At some point prior to release, Mr. Turner's right leg was placed in either a cast or a splint. Appellants alleged that his right leg was placed in a hard cast, while Ochsner contended that Mr. Turner's right leg was actually placed in a removable long leg splint.

Appellants alleged that, after several days, Mr. Turner was brought to the Bone & Joint Clinic in Baton Rouge and that Mr. Turner vomited twice during the ride. Appellants further alleged that when Mr. Turner's cast (or splint) was removed, it was discovered that Mr. Turner had three sores on his right foot and left leg, his skin had turned black, and he experienced blood clots behind his knee.

Following this discovery, Appellants alleged that Mr. Turner was next seen by Dr. Lawrence Messina, who placed Mr. Turner in a soft cast and confirmed that his bones were broken. According to Appellants, Mr. Turner was subsequently seen by Dr. Cravens, a vascular surgeon, who opined that Mr. Turner was in danger of "losing his left foot, left leg, and possibly his life." A filter was placed to deal with the clot in Mr. Turner's leg and surgery was later performed to harvest his veins in an attempt to revascularize his foot.

After his surgery, Mr. Turner underwent hyperbaric treatment at the Advanced Wound Clinic at Baton Rouge General Hospital. Mr. Turner also sought treatment at Our Lady of the Lake Regional Medical Center Wound Care Center. Appellants alleged that Mr. Turner now suffers from osteomyelitis and peripheral neuropathy. Appellants further alleged that Mr. Turner subsequently had his right leg amputated above the knee.

As a result, Appellants submit that Dr. Rabalais breached his standard of care by failing to properly diagnose and treat Mr. Turner. According to Appellants, this alleged breach led to Mr. Turner suffering severe and debilitating damages, needing medical care and additional surgeries, and being permanently disabled and disfigured. Further, Appellants alleged that Mrs. Turner had suffered loss of consortium damages as a result of Mr. Turner's injuries.

Mr. Turner's case proceeded to a medical review panel. On September 2, 2015, the panel unanimously found that the evidence in this case did not support the conclusion that the defendants failed to meet the applicable standard of care as charged in the complaint. The panel specifically stated:

The patient was appropriately x-rayed, observed, treated, and the appropriate immobilizer was provided. He was appropriately discharged with proper followup instructions. He presented to the [emergency room] the next day following this discharge. He was admitted to the hospital and an orthopedic consult was provided. He was discharged and referred to see his orthopedist at the Bone and Joint Clinic of Baton Rouge for further care and treatment.
The panel is satisfied with the care provided by the hospital and its staff.

In November 2015, Appellants filed an amended petition, adding Ochsner as a defendant. In this amended petition, Appellants alleged that, since his amputation, Mr. Turner was now confined to a wheelchair, unable to perform daily activities he once could perform, and had to re-model his home and purchase new vehicles equipped to deal with someone in his debilitated state. Appellants also submitted that the casting on Mr. Turner's leg was placed negligently by Ochsner employees. Further, Appellants acknowledged that Mr. Turner's case had proceeded to a medical review panel and that the panel had found that there was no negligence, but argued that the panel was incorrect.

On October 17, 2016, Ochsner filed a motion for summary judgment. Ochsner argued that Appellants had failed to produce required expert opinion evidence supporting their claims. Additionally, Ochsner argued that Mr. Turner failed to produce sufficient evidence to support the conclusion that Ochsner had failed to meet the applicable standard of care. Specifically, Ochsner alleged that a removable splint, not a hard cast, had been placed on Mr. Turner's leg. On November 29, 2016, Dr. Rabalais also filed a motion for summary judgment, arguing that Appellants had failed to present expert testimony to support their medical malpractice claim.

On December 15, 2016, Appellants filed their own motion for summary judgment and argued the following: (1) Because Dr. Rabalais moved for summary judgment, Dr. Rabalais was required to produce expert testimony and had failed to do so; (2) their case fell within the exception set forth in Pfiffner v. Correa , 94-0924 (La. 10/17/94); 643 So.2d 1228, 1233, in which the Supreme Court of Louisiana stated that expert testimony is not required where the physician does an obviously careless act from which a lay person can infer negligence; (3) Dr. Rabalais had committed an obviously careless act and, as such, they were not required to submit expert testimony; (4) the theory of res ipsa loquitur applied; and (5) a material issue of fact existed as to whether a hard cast or a removable splint had been placed on Mr. Turner's leg. Appellants also submitted affidavit testimony by Mr. Turner's daughter, son, and friend attesting that Mr. Turner's leg had been placed in a hard cast. Accordingly, Appellants argued that summary judgment in favor of Ochsner and/or Dr. Rabalais was improper.

On February 9, 2017, the trial court granted the motions for summary judgment filed by Dr. Rabalais and Ochsner and dismissed with prejudice all of Appellants' claims against Dr. Rabalais. The judgment also denied the motion for summary judgment filed by Appellants. This appeal followed.

ASSIGNMENTS OF ERROR

Appellants assign the following as error:

(1) The District Court erred in granting Dr. Rabalais' motion for summary judgment as sufficient evidence exists in the record-including Dr. Rabalais' own testimony-to show Dr. Rabalais failed to order appropriate x-rays and/or diagnostic films, and/or failed to correctly read the x-ray films, and that such negligence caused Dr. Rabalais' failure to diagnose/treat Mr. Turner's broken leg. At the very least, the evidence contained in the appellate records-including medical records, Dr. Rabalais' testimony, and plaintiffs' answers to interrogatories-undoubtedly create a genuine issue of material fact precluding summary judgment in favor of Dr. Rabalais.
(2) The District Court erred in granting Ochsner's motion for summary judgment as the plaintiffs have named experts who will provide expert testimony at the trial of this matter regarding Ochsner's medical malpractice. Moreover, a significant issue of material fact exists regarding whether Ochsner placed Mr. Turner in a hard cast or soft cast. This genuine issue of fact alone precludes summary judgment in favor of Ochsner. At the very least, the fact that Mr. Turner's leg was placed in a cast at Ochsner, and thereafter had to be amputated, invokes the doctrine of res ipsa loquitur, which precludes summary judgment in favor of Ochsner.
(3) The District Court erred in denying the motion for summary judgment filed by Richard and Flora Turner as Dr. Rabalais' own admissions prove he breached the standard of care owed to Mr. Turner in failing to order a CT scan, causing Dr. Rabalais to improperly diagnose the breaks in Mr. Turner's leg following his fall, and the admissible medical records of Ochsner undisputedly document that Mr. Turner suffered a broken leg when he fell.

STANDARD OF REVIEW

A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Schultz v. Guoth , 2010-0343 (La. 1/19/11); 57 So.3d 1002, 1005-06.

DISCUSSION

Assignments of Error # 1 and # 2

In two related assignments of error, Appellants argue that summary judgment in favor of Dr. Rabalais and Ochsner was inappropriate on two grounds. First, Appellants aver that sufficient evidence exists to demonstrate that Mr. Rabalais committed medical malpractice, such as to create a genuine issue of material fact precluding summary judgment in favor of Dr. Rabalais. Second, Appellants maintain that a significant issue of material fact exists regarding whether Ochsner placed Mr. Turner in a hard cast or soft cast, thus precluding summary judgment in favor of Ochsner. Appellants conclude that because of these alleged genuine issues of material fact, the trial court should not have rendered summary judgment in favor of Dr. Rabalais or Ochsner.

To establish a claim for medical malpractice, a plaintiff must prove the following by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. Schultz v. Guoth , 2010-0343 (La. 1/19/11); 57 So.3d 1002, 1006 (citing La. R.S. 9:2794). In motions for summary judgment in the context of medical malpractice, the burden of proof does not require that the medical care provider disprove medical malpractice, but only that the medical care provider raise as the basis of its motion that the plaintiffs cannot support their burden of proof at trial to demonstrate medical malpractice. See Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880, 887. Once the medical care provider has made a prima facie showing that the motion should be granted, then the burden shifts to the plaintiffs to present evidence sufficient to establish that they will be able to meet their burden of proof at trial. See Samaha , 977 So.2d at 887-88.

It is well established that to meet the burden of proof in a medical malpractice action, the plaintiff is generally required to produce medical expert testimony as a matter of law. Fagan v. LeBlanc , 2004-2743 (La. App. 1 Cir. 2/10/06); 928 So.2d 571, 575. Notably, the jurisprudence recognizes limited exceptions to the requirement of expert testimony in those instances where the claim arises out of an "obviously careless act " from which a lay person can infer negligence. Pfiffner v. Correa , 94-0924 (La. 10/17/94); 643 So.2d 1228, 1233-34. (Emphasis added.)

Examples of obvious negligence that could be inferred by a lay person include "obviously careless act[s], such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body[.]" Pfiffner , 643 So.2d at 1233. Other examples of obvious negligence include the "[f]ailure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary[.]" Id. at 1234.

Accordingly, the primary question is whether the alleged negligence in this case constitutes obvious negligence, for which no expert testimony is required. The alleged negligence in this case is that Dr. Rabalais either failed to order appropriate x-rays or diagnostic films, or failed to correctly read the x-ray films, and that such negligence caused Dr. Rabalais' failure to properly diagnose and treat Mr. Turner's broken leg.

We find that Dr. Rabalais' acts do not constitute "obvious negligence" as discussed in Pfiffner v. Correa. First, Mr. Turner has a complicated medical history. His medical records from Ochsner indicate that Mr. Turner had a history of falling in the three months prior to his visit to Ochsner on July 29, 2012. These same records deem Mr. Turner to be a high fall risk. Additionally, Mr. Turner had previously undergone knee replacement surgeries in both of his legs. Prior to the amputation, Mr. Turner had a history of foot drops and neuropathy, and wore support braces on both of his legs. Further, the facts surrounding the fall itself are complicated. Although it has been established that Mr. Turner fell on July 24, 2012, the correlation between the fall and Mr. Turner's eventual amputation are unclear. Accordingly, we find that expert medical testimony is necessary to establish (1) the standard of care applicable to the defendants; (2) whether the defendants breached that standard of care; and (3) whether there was a causal connection between the breach and the resulting injury.

Appellants have not identified specific experts to support their claims. On August 15, 2014, in regard to expert testimony, Appellants stated the following in an answer to an interrogatory seeking information about retained experts:

Plaintiff has not yet obtained copies of all medical records, and therefore cannot opine as to what experts it will utilize at trial. However, plaintiff, anticipates calling all subsequent treating physicians to testify as to causation, standard of care, and damages.

Appellants then referred back to a list of physicians that had treated Mr. Turner during the five year period immediately preceding the date of the fall at issue. The case management schedule noted that Appellants were required to identify experts by November 21, 2016, and that Appellants would be required to depose those experts within thirty days of that date. Despite this deadline, Appellants never supplemented the record with information regarding expert testimony. Because Appellants provided no expert witnesses to support their claims, they cannot prove the necessary elements of their medical malpractice suit. Accordingly, the trial court properly granted Dr. Rabalais' and Ochsner's motions for summary judgment and these assignments of error lack merit.

Assignment of Error # 3

In their third assignment of error, Appellants argue that the trial court erred in denying their motion for summary judgment because Dr. Rabalais' own admissions prove he breached the standard of care owed to Mr. Turner in failing to order a CT scan, causing Dr. Rabalais to improperly diagnose the breaks in Mr. Turner's leg following his fall.

This assignment of error is a misrepresentation of Dr. Rabalais' testimony. Appellants argue that in his deposition, Dr. Rabalais "testified that, in hindsight, he would've ordered a CT scan for Mr. Turner's right leg." Dr. Rabalais' actual testimony was:

If the patient's clinical picture indicated getting further imaging, we would have gotten [a CT scan ] ... [T]he clinical picture is a couple of things. One, is the patient having pain or not? Is it big and swollen? Does it look like a fracture? ... I was able to move the patient through a full range of motion without him having any pain.

According to the deposition testimony in the record, Dr. Rabalais stated that he would have ordered a CT scan for Mr. Turner's leg if he had believed it was necessary. This differs from Appellant's allegations that Dr. Rabalais' own admissions prove that he breached the standard of care.

Further, Appellants alleged that Ochsner's medical records undisputedly document that Mr. Turner suffered a broken leg when he fell. However, as previously stated, although it is clear that Mr. Turner fell, expert medical testimony is necessary to determine the correlation between the fall and Mr. Turner's amputation. Because no expert medical testimony was provided, summary judgment in favor of Appellants would not have been proper. Therefore, this assignment of error is without merit.

DECREE

The judgment of the Nineteenth Judicial District Court granting the motions for summary judgment filed by Dr. Rabalais and Ochsner, denying the motion for summary judgment filed by Appellants, and dismissing, with prejudice, all claims against Robert David Rabalais, M.D. and Ochsner Medical Center is affirmed. All costs of this appeal are assessed to Appellants, Flora and Richard Turner.

AFFIRMED.

McClendon, J. concurs.

      In May 2013, Appellants' medical malpractice claim against Dr. Rabalais and Ochsner was filed with the Louisiana Patient's Compensation Fund.

      According to Appellants, Mr. Turner had previously undergone two knee replacement surgeries. Specifically, Appellants alleged that Mr. Turner had his left knee replaced 15 years prior to the incident in question, and his right knee replaced 22 years prior to the incident.

      This was Appellant's fourth amended petition.

      The medical records support Ochsner's claims. The records indicate that a synthetic and posterior long leg splint had been placed on the right leg, not a hard cast. Further, the deposition testimony of Dr. Christopher Ferguson also indicates that Mr. Turner's leg was placed in a long-leg splint, which is removable and "held on by an Ace wrap".


author: PERRET, Judge.

text:
    Michael Neal ROLLINS v. STATE of Louisiana THROUGH the DEPT. OF PUBLIC SAFETY AND CORRECTIONS, et al.
    17-901
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Frank E. Barber, Attorney at Law, 116 Field St., New Iberia, LA 70560-4487, (337) 256-8370, COUNSEL FOR PLAINTIFF-APPELLANT: Michael Neal Rollins
    Julius W. Grubbs, Jr., Haik, Minvielle & Grubbs, 1017 E. Dale St., New Iberia, La 70562-1040, (337) 365-5486, COUNSEL FOR DEFENDANT-APPELLEE: State of Louisiana, Department of Public Safety and Corrections
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   PERRET, Judge.

The issue is this appeal is whether the trial court properly dismissed Michael Neal Rollins' ("Plaintiff") suit against the State of Louisiana, Through the Department of Public Safety and Corrections, ("State of Louisiana") based on abandonment. For the following reasons, we affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY:

In September 2008, Plaintiff was incarcerated at the Iberia Parish Jail in New Iberia. On September 4, 2008, Plaintiff, along with other Iberia Parish inmates, returned to the Iberia Parish Jail after being evacuated to a correctional facility in Winn Parish on the eve of Hurricane Gustav. The State of Louisiana assisted Iberia Parish Jail officers in the transport of the inmates to and from the Winn Correctional Center. On September 11, 2008, Plaintiff was released from the Iberia Parish Jail.

On September 3, 2009, Plaintiff filed a lawsuit against Louis Ackal, in his capacity as Sheriff of Iberia Parish, the State of Louisiana, and the Corrections Corporation of America, for alleged injuries he received between August 30, 2008 and September 4, 2008 while being transported from the Winn Correctional Center to the Iberia Parish Jail. Specifically, Plaintiff alleges that he sustained physical abuse by the officers while on the bus and in the parking lot of the Iberia Parish Jail.

On January 25, 2017, the State of Louisiana filed an Ex Parte Motion to Dismiss on Grounds of Abandonment, along with an affidavit signed by Julius Grubbs, Jr., alleging that there have been no filings or any steps in the prosecution or defense in this case since January 14, 2014. On that same date, the trial court granted the motion and dismissed the case with prejudice on grounds of abandonment.

On February 22, 2017, Plaintiff filed a Motion to Set Aside Dismissal and Motion for Sanctions alleging that "within the past three years, specifically, on October 19, 2015[,] certain discovery materials, including interrogatories and Request for Production of Documents were served on counsel for the State of Louisiana at the time, the Office of Attorney General." As evidence in support of the Motion to Set Aside Dismissal, Plaintiff attached a copy of the U.S. Postal Service certified mail return receipt, dated October 22, 2015, and signed by Mary C. Campbell, an agent of the State who worked for the office of the Attorney General.

On April 7, 2017, the State of Louisiana filed an opposition to Plaintiff's Motion to Set Aside Dismissal whereby it stipulated that discovery was sent and received in October 2015; however, it argued that Plaintiff failed to serve all parties with the discovery as required under La.Code Civ.P. art 561(B) and that the method of service was improper. Specifically, the State of Louisiana maintained that Plaintiff failed to serve the Iberia Parish Sheriff's Office with this discovery and attached, as evidence, an affidavit of Fred Schroeder, counsel for Iberia Parish Sheriff's Office, who testified that "[t]he written discovery/interrogatories that plaintiff claims were propounded on or about October 19, 2015, were never served on my client, defendant Sheriff Louis Ackal, nor were they ever received by me as counsel for defendant Sheriff Louis Ackal."

After a hearing on April 12, 2017, the trial court denied the Motion to Set Aside Dismissal and the Motion for Sanctions. In its reasons for judgment, the trial court found that "Louis Ackal, another defendant in the matter, was not served with the discovery of October 15, 2015" and that "[i]f service [had] been made by the plaintiff on all parties, the discovery would have been a step in the prosecution of the action and the case would not have been considered abandoned ...." Plaintiff filed a Motion for New Trial, which the trial court denied on June 30, 2017.

Plaintiff now appeals this final judgment alleging the following assignments of error: (1) the trial court erred in upholding the abandonment after the State of Louisiana withdrew the affidavit that was used to support the ex parte motion to dismiss; (2) the trial court erred in not considering the plethora of steps the parties took in progressing this case during the three-year period prior to the State of Louisiana filing its motion to dismiss; and (3) the trial court erred in focusing solely on the provisions of Paragraph B of La.Code Civ.P. art. 561.

STANDARD OF REVIEW:

This court set forth the standard of review for abandonment issues in Margaret Fisk Munro v. British Am. Oil Producing Co. , 16-1057, p.4 (La.App. 3 Cir. 11/8/17), 235 So.3d 1162, 1167 (citations omitted) when it held that:

[A]n appellate court considers a trial court's findings of fact as to whether a step in the prosecution or defense of a case has been taken pursuant to the manifest error standard. However, the question of whether a particular, proven fact precludes abandonment is a question of law that is reviewed by considering whether the trial court's decision was legally correct.

DISCUSSION:

The sole issue before this court is whether the trial court properly dismissed Plaintiff's suit against the State of Louisiana on the basis of abandonment. Louisiana Code of Civil Procedure Article 561 (emphasis added), governs abandonment and provides, in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the
trial court for a period of three years, unless it is a succession proceeding: ....
....
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record , including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

This court recently addressed the rules governing abandonment and formal discovery in Giglio v. State , 17-405, pp. 3-6 (La.App. 3 Cir. 9/20/17), 227 So.3d 851, 854-56, (emphasis added), and stated as follows:

Abandonment occurs automatically upon the passing of three years without a step being taken by either party and is effective without court order. La. Code Civ. P. art. 561(A)(3). In this context, a "step" has long been defined as taking formal action before the court, which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice.
....
Jurisprudentially, a step in the prosecution must appear in the record to ensure notice to the defendant of actions taken that interrupt abandonment. Clark [v. State Farm Mut. Auto. Ins. Co. , 00-3010, p. 6 (La. 5/15/01),] 785 So.2d 779. "When any party to a lawsuit takes formal action in the trial court, it is effective as to all parties." Delta Dev. Co., Inc. v. Jurgens , 456 So.2d 145, 146 (La.1984). Louisiana Code Civil Procedure Article 561(B) sets forth an exception to this formal action requirement for formal discovery that is "authorized by this Code and served on all parties, whether or not filed of record ." Codification of this exception was directly prompted by criticism from judges and commentators of the formal requirement in formal discovery, namely depositions taken with the consent of
both parties and in which both parties participated. Clark, 785 So.2d 779.

The issue before this court in Giglio was whether plaintiffs' request for the issuance of a subpoena duces tecum on a third party constituted a step in the prosecution to interrupt the running of abandonment when it was filed in the record but not served on opposing counsel. This court ruled that the matter was abandoned based on the fact that the letter requesting the issuance of a subpoena was properly classified as a discovery request and that " Article 561(B) requires that for a discovery request to interrupt prescription, it must be served on all parties." Giglio , 227 So.3d 856.

The Louisiana Supreme Court in Guillory v. Pelican Real Estate, Inc. , 14-1539, 14-1593, 14-1624 (La. 3/17/15), 165 So.3d 875, also cited to La.Code Civ.P. art. 561(B) for its holding that discovery not served on all parties failed to constitute a step sufficient to interrupt the abandonment period. Specifically, the supreme court stated: "[t]he record ... indicates that on December 17, 2012, plaintiffs sent discovery to Pelican only. It is undisputed this discovery was not served on all parties. Therefore, under the plain language of La.Code Civ. P. art. 561(B), this discovery does not constitute a step in the prosecution of the action." Id. at 877.

Similarly, in this case, we find that the record evidences the fact that the discovery requests in question were only served on the State of Louisiana and not on the Iberia Parish Sheriff's Office. Based on Giglio and Guillory , we find that the trial court properly found that the case was abandoned, as the discovery requests were not served on all parties to the suit and thus, failed to constitute a step in the prosecution or defense of the action under La.Code Civ.P. art. 561.

Although Plaintiff argues that the Motion to Set Aside the Dismissal should have been granted once the State of Louisiana withdrew the affidavit of Julius Grubbs, Jr., that supported its Motion to Dismiss on Grounds of Abandonment, we find no merit to this argument. The Louisiana Supreme Court in Clark v. State Farm Mut. Auto. Ins. Co. , 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784 specifically held that "[a]rticle 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without court order." Therefore, we find that abandonment occurred automatically in January 2017, when no steps had been taken in the prosecution of this matter in over three years.

Accordingly, we find that the trial court properly dismissed Plaintiff's action as abandoned and correctly denied Plaintiff's Motion to Set Aside Dismissal and Motion for Sanctions. All costs are assessed to Plaintiff, Michael Neal Rollins.

AFFIRMED.

      The Corrections Corporation of America was dismissed from the lawsuit on June 13, 2011.


author: EZELL, Judge.

text:
    Sarah BARBER, et al. v. LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY
    CA 17-800
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Robert L. Bussey, Lewis O. Lauve, Jr., Special Assistant Attorneys General, P.O. Drawer 8778, Alexandria, LA 71306-1778, (318) 449-1937, COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana
    Jeremy C. Cedars, Keiser Law Firm, P. O. Box 12358, Alexandria, LA 71315, (318) 443-6168, COUNSEL FOR DEFENDANT/APPELLEE: Estate of Larry Jeane, Sr.
    Derrick G. Earles, David C. Laborde, Jeff D. Easley, Laborde Earles Law Firm, 100 Versailles Blvd, Ste A, Alexandria, LA 71303, (318) 625-6397, COUNSEL FOR PLAINTIFFS/APPELLANTS: Sarah Barber, Jamie Turner, Racheal Spivey, Sarah Barber, o/b/o Abbigail Turner, Wallace Spivey, Jamie Turner, o/b/o Abbigail Turner, Elizabeth Spivey, Dana Spivey
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie, Judges.
   EZELL, Judge.

The Plaintiffs in this case appeal the grant of summary judgment by the trial court in favor of the State, finding that it is not vicariously liable for the acts of the Pineville City Marshal. The Plaintiffs were injured in a car accident involving the City Marshal. On appeal, the Plaintiffs argue that the trial court should have granted their cross motion for summary judgment and held the State vicariously liable for the action of the City Marshal.

FACTS

The accident occurred on July 18, 2014. Sarah Barber was driving her car southbound on Louisiana Highway 107 in Pineville, Louisiana. Abbigail Turner, Racheal Spivey, and Dana Spivey were guest passengers in the vehicle. At the same time, Larry Jeane, who was in the course and scope of his employment as Marshal with the City of Pineville, was traveling northbound on Highway 107. Mr. Jeane crossed the centerline and hit the Barber vehicle. Mr. Jeane died because of the accident, and the occupants of the other vehicle sustained serious injuries.

Suit was filed by and on behalf of the occupants of the Barber vehicle against the City of Pineville and its insurer, Louisiana Municipal Risk Management Agency Group Self-Insured Fund. Also named as defendants were the Estate of Larry Jeane and the uninsured/underinsured carrier for the Spiveys, Shelter Mutual Insurance Company. A supplemental and amending petition was filed adding additional defendants: The State of Louisiana; Republic Fire and Casualty Insurance Company, the insurer of Mr. Jeane; the Rapides Parish Police Jury; the City of Pineville City Marshal's Office and its unknown insurer.

The State filed an exception of no cause of action seeking dismissal of the Plaintiffs' claims against it. The Rapides Parish Police Jury and the Pineville City Marshal also filed exceptions of no cause of action. The trial court denied the exception filed by the State but granted the exceptions filed by the Police Jury and the City Marshal. The State sought review of the trial court's ruling in this court. This court found no error in the trial court's ruling. The supreme court also denied the State's application for supervisory writs. Barber v. La. Mun. Risk Mgmt. Agency Group Self-Insured Fund , 16-291 (La. 4/8/16), 191 So.3d 586.

The State and the Plaintiffs filed cross motions for summary judgment regarding the vicarious liability of the State for the actions of Mr. Jeane as City Marshal. At the time of the hearing on the cross motions for summary judgment, the State was the only remaining defendant concerning Mr. Jeane's employer. The hearing was held on June 12, 2017. The trial court denied the Plaintiffs' motion for summary judgment and granted the State's motion for summary judgment finding that the State was not the employer of Mr. Jeane as City Marshal and not liable for his actions in causing the accident. The State was dismissed from the case by judgment signed on June 12, 2017. The Plaintiffs then filed the present appeal.

STANDARD OF REVIEW

"Appellate courts review summary judgments de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate." Greemon v. City of Bossier City , 10-2828, 11-39, p. 6 (La. 7/1/11), p. 6 La. 7/1/11, 65 So.3d 1263, 1267. A summary judgment "shall be granted if 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). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La.Code Civ.P. art. 966(A)(4). "The burden of proof rests with the mover." La.Code Civ.P. art. 966(D)(1). If the mover will not bear the burden of proof at trial on the matter at issue, however, his burden on the motion for summary judgment "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." Id. Specifically, "[t]he 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." Id.

DISCUSSION

All parties agree that the facts are not in dispute and that only a question of law is at issue: Is the State vicariously liable for the accident caused by Mr. Jeane when he was in the course and scope of his employment as the Pineville City Marshal? The Plaintiffs claim that the Marshal is commanded by the State Legislature to enforce the mandates of the Pineville City Court, which is a part of the judiciary branch of state government. Therefore, the Plaintiffs claim that the State is vicariously liable for the acts of the Marshal. The State argues that the Plaintiffs must establish a master/servant relationship between it and the Marshal under the traditional criteria of control, compensation, and course and scope as required by La.Civ.Code art. 2320 and La.R.S. 42:1441.4.

Pursuant to La.Civ.Code art. 2320, "[m]asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." Louisiana Revised Statutes 42:1441 providing for the limitation of the vicarious liability of the State of Louisiana stated at the time of this accident :

A. The state of Louisiana shall not be liable for any damage caused by a district attorney, a coroner, assessor, sheriff, clerk of court, or public officer of a political subdivision within the course and scope of his official duties, or damage caused by an employee of a district attorney, a coroner, assessor, sheriff, clerk of court, or public officer of a political subdivision.
B. The provisions of Subsection A of this Section are not intended to and shall not be construed to affect any personal liability which may arise from damage caused by any public officer of a political subdivision, or by a district attorney, coroner, assessor, sheriff, clerk of court, or the employee of any such public officer, nor shall the provisions of said Subsection A be construed to amend or repeal R.S. 13:5108.1.
C. For the purposes of this Section, "political subdivision" means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.

In La.R.S. 42:1441.4, the legislature set forth the following findings and purposes regarding governmental liability for employee offenses and quasi offenses:

With respect to the nonliability situations set forth in this Chapter as well as the master-servant tort liability provisions contained in this Chapter, the legislature finds and states that:
(1) The intent of the Civil Code Article 2320 and other laws imposing liability on a master for the offenses and quasi offenses of his servant can be found implied in the traditional interpretation and application thereof, in much the same manner as explained in Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), the same with respect to the relationships between governmental bodies politic and their respective officers and employees as it is with respect to relationships among private individuals.
(2) Such cases as Foster v. Hampton, 352 So.2d 197 (La.1977) and 381 So.2d 789 (La.1980) ; Mullins v. State, 387 So.2d 1151 (La.1980), and Hryhorchuk v. Smith, 390 So.2d 497 (La.1980), represent misinterpretations and misapplications of Civil Code Article 2320 and other laws imposing liability on a master for the offenses and quasi offenses of his servant.
(3) The intent and purpose of the provisions contained in this Chapter relative thereto are to restore to the legislatively created Civil Code Article 2320 and other laws imposing such master-servant liability the true legislatively intended meaning, interpretation, and application deviated from in such relationships, circumstances, and
cases as reported in Foster v. Hampton, Mullins v. State, and Hryhorchuk v. Smith, supra.
(4) The intent, purpose, and effect of such provisions in this Chapter are not to attempt a reestablishment of any governmental immunity based on the status of sovereignty of any government, but rather to correct the legislatively created substantive law, in much the same manner as such provisions were correctly interpreted and upheld in Martinez v. Reynolds, 398 So.2d 156 (La.App. 3rd Cir.1981), and Sullivan v. Quick, 406 So.2d 284 (La.App. 3rd Cir.1981).
(5) The liability of government should be no greater than that of private individuals.
(6) That those legislatively created substantive laws which are misinterpreted and misapplied to result in such greater governmental liability can and should be corrected to the same extent and for the same relationships wherein they were erroneously interpreted and applied.

In Martinez v. Reynolds , 398 So.2d 156 (La.App. 3 Cir. 1981), this court concluded that La.R.S. 42:1441 destroys any cause of action against the State for the vicarious liability of certain governmental employees. Later, applying these statutes, this court held that the State could not be held vicariously liable for a tort committed by a parish constable during the course and scope of his employment as a local official. Hebert v. Angelle , 600 So.2d 832 (La.App. 3 Cir.), writ denied , 604 So.2d 997 (La.1992).

In Morgan v. Laurent , 06-467 (La.App. 5 Cir. 12/27/06), 948 So.2d 282, writ denied , 07-178 (La. 3/16/07), 952 So.2d 701, the fifth circuit found that the State could not be held liable for an accident involving a law clerk of a parish district court. This is because La.R.S. 42:1441.1 provides that the State is not liable for the offenses and quasi offenses of any person who is not an employee of the State entitled to indemnification under La.R.S. 13:5108.2. The court held that the law clerk was not one of the covered individuals of the judicial branch for whom vicarious liability extends under La.R.S. 13:5108.1(E). As noted by the court in Morgan , 948 So.2d 282, La.R.S. 13:5108.2 was repealed by Acts 2000, 1st Ex.Sess., No. 65, § 2, and the substance is now found in La.R.S. 13:5108.1.

While La.R.S. 42:1441(A) does not specifically list a marshal as one of the governmental employees that the State is not liable for, it does list a "public officer of a political subdivision." A political subdivision is defined as a "municipality ... authorized by law to perform governmental functions." La.R.S. 1441(C). Furthermore, La.R.S. 13:5108.1(E)(3)(b) specifically provides that a "covered individual" for indemnification purposes does not include marshals, so that La.R.S. 42:1441.1 destroys any cause of action against the State for the offenses of a city marshal. Therefore, the State is not liable for the accident caused by Mr. Jeane as Pineville City Marshal as the legislature has deemed it immune for the actions of a city marshal.

For the reasons set forth in this opinion, the judgment of the trial court granting summary judgment in favor of the State of Louisiana is affirmed. Costs of this appeal are assessed against the Plaintiffs/Appellants.

AFFIRMED.

      Louisiana Revised Statutes 42:1441 was amended by Acts 2017, No. 414, § 1, regarding the liability and indemnification of a district attorney.