Mercer v. Lowe

217 So. 3d 1235, 2017 La. App. LEXIS 553
CourtLouisiana Court of Appeal
DecidedApril 5, 2017
DocketNo. 51,333-CA
StatusPublished
Cited by2 cases

This text of 217 So. 3d 1235 (Mercer v. Lowe) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercer v. Lowe, 217 So. 3d 1235, 2017 La. App. LEXIS 553 (La. Ct. App. 2017).

Opinion

LOLLEY, J.

| ] This appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, which granted summary judgment in favor of the Bossier Parish Sherriffs Office and Detective Debra McKay, finding that discretionary immunity provided by La. R.S. 9:2798.1 applied under these circumstances. The State of Louisiana through the Department of Children and Family Services now appeals that judgment. For the following reasons, we affirm the judgment of the trial court.

FACTS

This matter stems from the tragic death of five-year-old Anna Celeste Lowe, born June 13, 2005, to biological father, Wesley Lowe, and biological mother, Jamie Mercer. At the end of 2010, Anna was living in Bossier Parish, Louisiana, with Wesley [1237]*1237and her stepmother, Catherine Lowe, due to a pending investigation in Ouachita Parish against Jamie for the alleged physical and sexual abuse of Anna.

Around September 24, 2010, Wesley took Anna to a doctor for a bruise on her forehead. Wesley informed the doctor that Jamie punched Anna in the head, and also reported suspected sexual abuse. Subsequently, Anna was evaluated at the Center for Children and Families in Monroe, Louisiana. On September 29, Wesley filed in Bossier Parish District Court for a protective order against Jamie on Anna’s behalf. According to the protective order, Jamie was allowed only supervised visits with Anna while the investigation was ongoing. The last visit Jamie had with Anna was on October 30, 2010, at the Louisiana State Fair in'Shreveport.

On December 9, 2010, a teacher at Elm Grove Elementary School in Bossier Parish reported suspected physical abuse of Anna to the Bossier 1 ¿Parish Sherriff s Office (“BPSO”). Specifically, the teacher reported a bruise on Anna’s neck, which Anna claimed had been caused by her mother. An investigation was opened and assigned to Bossier Parish Detective Debra McKay, who contacted Wesley to inquire about Anna’s bruise. Detective McKay had knowledge of the pending investigation in Ouachita Parish involving Jamie. After learning from Wesley that Anna had not returned to Jamie’s custody since October 2010, Det. McKay closed the investigation in Bossier Parish concerning the December 2010 bruise on Anna’s neck.

About a month later, on January 13, 2011, at around 9:30 in the morning, Anna was brought to the Willis-Knighton Pier-remont Emergency Room in Shreveport where she was pronounced dead. At the time, Wesley and Catherine claimed that Anna had a stomach virus, but the coroner’s report revealed Anna’s stomach was severed from her intestines—the recorded cause of death was internal injuries and bleeding due to blunt force trauma. Subsequently, it was learned that Catherine was physically abusing Anna. Catherine was indicted for first degree murder by a grand jury, but eventually accepted a plea deal, and pled guilty to manslaughter in connection with Anna’s death.

On January 11,2012, Jamie, individually, and on behalf of her deceased daughter, filed survival and wrongful death actions against defendants: Wesley; Catherine; the State of Louisiana, Department of Family and Child Services (“DCFS”); Ta-meika Monday, DCFS employee; BPSO; Det. McKay; the Attorney General for the State of Louisiana; and, the Louisiana Office of Risk Management. Jamie later voluntarily dismissed the Attorney General and Office of Risk Management. BPSO and Det. McKay filed a motion for summary judgment. DCFS filed an opposition | ¡¡arguing it was grossly negligent for Det. McKay to close her investigation when evidence of continued abuse existed. Jamie filed an opposition also, but only to the extent that if summary judgment were granted in favor of BPSO and Det. McKay, no evidence of allocation of fault as to BPSO or Det. McKay should be considered at a trial of the matter.

After a hearing on the joint motion, the trial court granted summary judgment in favor of BPSO and Det. McKay. DCFS alone now appeals that ruling. Jamie, Wesley, and Catherine have not filed briefs in this appeal.

DISCUSSION

In its only assignment of error, DCFS argues the trial court erred in granting summary judgment in favor of BPSO and Det. McKay. Specifically, it argues the trial court erred in finding Det. McKay’s actions during the investigation of Anna’s December 2010 braise were not grossly negligent and thus entitled to dis[1238]*1238cretionary immunity in accordance with La. R.S. 9:2798.1. We disagree with DCPS’s argument.

A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, and the appellate court uses the same criteria that governed the trial court’s determination of whether summary judgment was appropriate. Bank of N.Y. Mellon v. Smith, 2015-0530 (La. 10/14/15), 180 So.3d 1238, 1243. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for 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. C.C.P. art. |4966(A)(3). The burden of proof rests with the mover. Nevertheless, if the mover will not bear, the burden of proof at trial on the issue that is before the court on the motion for summary judg^ ment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(D)(1).

When the court grants a motion for summary judgment that a party or non-party is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault, and evidence shall not be admitted at trial to establish the fault of that party or non-party. La. C.C.P. art. 966(G).

Normally, liability is judged under the traditional duty-risk analysis; however, where statutory immunity from liability applies, the necessity of a duty-risk analysis of a public entity’s actions is not reached. See Fowler v. Roberts, 556 So.2d 1 (La. 1989); see also Brodnax v. Foster, 47,079 (La.App. 2 Cir. 04/11/12), 92 So.3d 427, 432, writ denied, 2012-1074 (La. 09/12/12), 98 So.3d 310. Where a public entity exercises its policymaking or discretionary duties, immunity applies in the absence of gross negligence. See Anderson v. Anderson, 2007-805 (La.App. 5 Cir. 02/06/08), 980 So.2d 15, writ denied, 2008-0558 (La. 05/02/08), 979 So.2d 1285. The Louisiana Supreme Court has adopted the .United States Supreme Court’s two-step inquiry set forth in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), to analyze the application of immunity under La. R.S. 9:2798.1. Simeon v. Doe, 618 So.2d 848, 852-3 (La. 1993); Peterson v. City of Tallulah, 43,197 (La.App. 2 Cir. 04/23/08), 981 So.2d 192, 195. First, a court must determine whether a statute, regulation or policy specifically prescribes the course of action for the employee or agency to follow. Id. If so, there is no discretion on the part of the employee or agency and therefore no,immunity.

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217 So. 3d 1235, 2017 La. App. LEXIS 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercer-v-lowe-lactapp-2017.