Toomer v. Wayne O. Mizell, Wayne's World Tubing & Canoeing, LLC

BRIAN R. TOOMER v. WAYNE O. MIZELL, WAYNE'S WORLD TUBING AND CANOEING, LLC,DEPUTY TIMMY STEWART, SHERIFF RANDY SEAL, IN HIS OFFICIAL CAPACITY,ABC INSURANCE CO., AND XYZ INSURANCE CO.

NUMBER 2016 CA 0333

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

February 21, 2017

NOT DESIGNATED FOR PUBLICATION

Appealed from the 22^nd Judicial District Court In and for the Parish of Washington, Louisiana

Trial Court Number 105748

Honorable Martin E. Coady, Judge

Rusty Savoie

Covington, LA

Attorney for Appellant

Plaintiff - Brian R. Toomer

Charles M. Hughes, Jr.

Gary L. Hanes

Mandeville, LA

Attorneys for Appellees

Defendants - Randy "Country" Seal,

in his capacity as Sheriff of

Washington Parish, and Deputy

Timmy Stewart

BEFORE: GUIDRY, WELCH, CRAIN, HOLDRIDGE, AND CHUTZ, JJ.

WELCH, J.

The plaintiff, Brian R. Toomer, appeals a judgment granting the motion for summary judgment filed by defendants, Randy "Country" Seal, in his capacity as Sheriff of Washington Parish, and Deputy Timmy Stewart, which dismissed the plaintiff's claim for damages against those defendants. For reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

According to the allegations of the plaintiff's petition, Wayne Mizell managed Wayne's World Tubing and Canoeing, LLC ("Wayne's World"), which was a business that provided tubes, canoes, transportation, and other services to persons wishing to tube or canoe along the Bogue Chitto River in Washington Parish, Louisiana, and the plaintiff lived in the vicinity of Wayne's World. The plaintiff alleged that he and Mr. Mizell had a tenuous history and that he had previously informed Mr. Mizell that Mr. Mizell was not welcome on or allowed on his property.

The plaintiff further alleged that on July 4, 2012, Deputy Timmy Stewart of the Washington Parish Sheriff's Department was performing paid detail security services at Wayne's World and was wearing his Washington Parish Sheriff's deputy uniform. Mr. Mizell, accompanied by Deputy Stewart and Charles Brumfield,¹ a Wayne's World employee, came to the plaintiff's home by boat and then proceeded onto the plaintiff's property where the plaintiff and his family were having a Fourth of July party. The plaintiff asked Mr. Mizell to leave his property; however, Mr. Mizell began to accuse the plaintiff of stealing or damaging a tube from Wayne's World. Mr. Mizell then punched the plaintiff in the face andphysically assaulted the plaintiff, causing him to fall to the ground and injure his knee and other parts of his body.

As a result of the events occurring on July 4, 2012, the plaintiff claimed that he underwent painful and debilitating surgery to his knee and suffered damages. Therefore, on June 26, 2013, the plaintiff filed a petition for damages² against Mr. Mizell; Wayne's World; Deputy Stewart; Sheriff Randy Seal, in his official capacity as the Sheriff of Washington Parish, Louisiana; and the unknown liability insurers of Wayne's World and Sheriff Seal, his department, and/or his deputies.

In the petition, the plaintiff claimed that Deputy Stewart was aware of the tenuous relationship between the plaintiff and Mr. Mizell, that Deputy Stewart brought together or knowingly allowed to come together a criminal complainant and the alleged target of that complaint, that he used his position with the Washington Parish Sheriff's Office to allow Mr. Mizell physical access to the plaintiff, and that Deputy Stewart's chosen course of action was reckless and the result was predictable. The plaintiff alleged that Deputy Stewart was liable for his actions and his failure to follow proper and recognized police procedures. The plaintiff further alleged that Sheriff Seal was vicariously liable for the actions and carelessness of his deputy, and for his (or his predecessor's) failure to properly instruct and/or supervise the deputy's off-duty work, failure to properly train departmental personnel, and/or failure to take other reasonable actions to prevent what occurred.

Sheriff Seal and Deputy Stewart filed an answer generally denying the allegations of the plaintiff's petition. Thereafter, Sheriff Seal and Deputy Stewart filed a motion for summary judgment, seeking the dismissal of the plaintiff's claims against them on the basis that there was no "identifiable and legally-enforceable duty" that they owed to the plaintiff. By judgment signed on December 15, 2014, the trial court granted the motion for summary judgment of Sheriff Seal and Deputy Stewart, and it is from this judgment that the plaintiff has appealed, asserting that the trial court erred in granting summary judgment on the basis that Deputy Stewart owed no duty to the plaintiff.³

II. LAW AND DISCUSSION

A. Summary Judgment Law⁴

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact, and the summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2); Power Marketing Direct, Inc. v. Foster, 2005-2023 (La. 9/6/06), 938 So.2d 662, 668. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2) and (C)(1).⁵

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, but ratherto point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2).⁶ However, a summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F)(1).

Summary judgments are 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: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Power Marketing Direct, Inc., 938 So.2d at 669.

B. Negligence/Duty Risk

In this case, the plaintiff's claims against Deputy Stewart and Sheriff Seal are based upon negligence. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La. 3/10/06), 923 So.2d 627, 632-633. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard of care (or the defendant owed a duty of care to the plaintiff) (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (or breached the requisite duty) (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the harm or the plaintiff's injuries (the cause-in-fact element); (4) the risk of harm was within the scope of protection afforded by the duty breached (the scope of the duty, scope of protection or legalcause element); and (5) actual damages (damages element). See Bellanger v. Webre, 2010-0720 (La. App. 1^st Cir. 5/6/11), 65 So.3d 201, 207, writ denied, 2011-1171 (La. 9/16/11), 69 So.3d 1149; Lazard v. Foti, 2002-2888 (La. 10/21/03), 859 So.2d 656, 659. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Bellanger, 65 So.3d at 207.

Therefore, to carry the burden on a motion for summary judgment, Sheriff Seal and Deputy Stewart were required to show an absence of factual support for any essential elements of the negligence cause of action. Sheriff Seal and Deputy Stewart specifically sought summary judgment on the basis that there was no "identifiable and legally-enforceable duty whatsoever" that was applicable to their conduct, i.e., there was an absence of factual support for the duty element of the plaintiff's negligence action. In addition, the trial court granted the motion for summary judgment on the basis that it found "[no] duty was created on the part of the defendants...." Therefore, our discussion herein is limited to the duty element of the plaintiff's claim. See La. C.C.P. art. 966(F)(1).⁷

C. Duty

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Ponceti v. First Lake Properties, Inc., 2011-2711 (La. 7/2/12), 93 So.3d 1251, 1252. A duty is defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. Perkins v. Entergy Corp., 98-2081 (La. App. 1^st Cir. 12/28/99), 756 So.2d 388, 403, affirmed, 2000-1372 (La. 3/23/01), 782 So.2d 606. Whether a duty is owed is a question of law. Ponceti, 93 So.3d at 1252; Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La. 1984). The inquiry is whether the plaintiff has any law—statutory, jurisprudential, or arising from general principles of fault—to support his claim. Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La. 1993). Although duty is a question of law, summary judgment on the issue of duty is proper only where no duty exists as a matter of law and no factual or credibility disputes exist. Sutherland v. Alma...