STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-444
STEVE BLANCHARD
VERSUS
MICHAEL J. MITCHELL, ET AL.
**********
SUPERVISORY WRIT FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2015-1928 HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges.
WRIT DENIED.
Joseph B. Stamey Stamey & Miller, L.L.C. P. O. Drawer 1288 Natchitoches, LA 71458-1288 (318) 352-4559 COUNSEL FOR DEFENDANT/RESPONDENT: State Farm Mutual Automobile Insurance Company Cory P. Roy Brandon J. Scott Benjamin D. James Renee Y. Roy Roy & Scott, Attorneys at Law 107 North Washington Street Marksville, LA 71351 (318) 240-7800 COUNSEL FOR PLAINTIFF/RESPONDENT: Steve Blanchard
Wade A. Johnson Law Office of Sheryl Story One Galleria Blvd, Suite 1500 Metairie, LA 70001-7551 (504) 846-4110 COUNSEL FOR DEFENDANT/APPLICANT: Robin Ewing Pool Supplies, Inc.
Mary K. Cryar Coverage Litigation Group One Galleria Blvd, Suite 1502 Metairie, LA 70001 (504) 846-4103 COUNSEL FOR DEFENDANT/APPLICANT: Valley Forge Insurance Company
Jeffrey S. Ingram 2757 Highway 28 East Pineville, LA 71360 (318) 484-3911 COUNSEL FOR DEFENDANT/RESPONDENT: State Farm Mutual Automobile Insurance Company
Michael J. Mitchell In Proper Person 424 Faithway Alexandria, LA 71302 COUNSEL FOR DEFENDANT/ RESPONDENT: Michael J. Mitchell SAUNDERS, Judge.
On June 26, 2014, Troy Rogers was acting within the course and scope of
his employment with Relator, Robin Ewing Pool Supplies, Inc. (“Robin Ewing
Pool Supplies”) when he went to a customer’s house to clean a swimming pool.
Mr. Rogers drove a vehicle owned by Relator to get to the customer’s home in
Alexandria, Louisiana. When Mr. Rogers arrived at the customer’s residence, he
parked the vehicle on the street in front of the residence. Mr. Rogers left the keys
in the vehicle during the twenty to twenty-five minutes that he was working on the
customer’s pool. While the vehicle was parked on the street, Michael Mitchell
entered the vehicle and drove away in it. When Mr. Rogers heard the vehicle crank
up, he ran after the vehicle and later reported it stolen. While Mr. Mitchell was
driving the vehicle owed by Relator, he got into an accident with Plaintiff, Steve
Blanchard. As a result of the accident, Plaintiff filed a personal injury lawsuit
against his UM insurer, State Farm Mutual Automobile Insurance Company; Mr.
Mitchell; and Relators herein (Robin Ewing Pool Supplies, and its UM insurer,
Valley Forge Insurance). Relators filed a motion for summary judgment seeking
dismissal of Plaintiff’s claims against them. The trial court denied the motion for
summary judgment, and Relators now seek review of that ruling.
SUPERVISORY RELIEF
Since the denial of a motion for summary judgment is an interlocutory ruling
from which no appeal may be taken, the only practical remedy available to avoid a
possible useless trial on the merits is to request that the appellate court exercise its
supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers,
526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988). ON THE MERITS
Relators assert that the trial court erred when it denied their motion for
summary judgment. Relators contend that Plaintiff is attempting to have them held
liable for the automobile accident at issue based on their violation of La.R.S.
32:145, which provides as follows:
No person driving or in charge of any motor vehicle shall permit it to stand unattended without first stopping the motor, locking the ignition, removing the key, and effectively setting the brake thereon, and, when standing upon any grade, turning the front wheels to the curb or side of the highway.
Relators maintain that Plaintiff takes the position that a violation of La.R.S. 32:145
constitutes a breach of duty owed to Plaintiff by Mr. Rogers (the employee of
Relator, Robin Ewing Pool Supplies). However, Relators argue that Louisiana has
rejected the doctrine of negligence per se. In that regard, Relators note the
Louisiana Supreme Court has stated that “[t]he terminology ‘negligence per se’ has
been rejected in Louisiana. The violation of a statute or regulation does not
automatically, in and of itself, impose civil liability. Civil responsibility is
imposed only if the act in violation of the statute is the legal cause of damage to
another.” Faucheaux, 615 So.2d at 292-93 (citation omitted). In the instant case,
Relators assert that Mr. Rogers, who left the keys in the vehicle owned and insured
by Relators, did not owe a duty to Plaintiff, and, alternatively, Relators argue that
even if a duty was owed to Plaintiff, the duty did not encompass the risk that a
thief would steal a vehicle and later become involved in an accident. In support of
their position, Relators cite various cases, including DeCastro v. Boylan, 367 So.2d
83, 84 (La.App. 4 Cir.), writ denied, 369 So.2d 458 (La.1979) (citations omitted),
wherein the fourth circuit held as follows:
The courts in the majority of jurisdictions which have statutes prohibiting the leaving of keys in unattended automobiles have 2 construed the purpose of these laws to be the protection of automobile owners or as an aid to police officers. They have not held its purpose to be the protection of third parties from the negligent operations of thieves. The purpose of the subject Louisiana statute appears to have been intended to prevent the theft of vehicles from the public streets and roadways. We conclude that R.S. 32:145 does not go as far as to protect a plaintiff from being negligently injured by one who has stolen his car with the keys left in it.
In his opposition to the instant writ application, Plaintiff argues that the
DeCastro decision is dated and that it does not appear to be in accord with the
more modern trend of finding that it is foreseeable that a stolen vehicle may be
used in a reckless manner thus causing injury to a third person. Plaintiff asserts
that the court in DeCastro, 367 So.2d 83, incorrectly concluded that the duty owed
under La.R.S. 32:145 does not extend to the victim of an accident caused by the
driver of the stolen vehicle. According to Plaintiff, it is foreseeable that a person
who is willing to steal a vehicle is going to drive it in a negligent manner in order
to avoid being discovered or arrested. As such, Plaintiff maintains that the
likelihood of an accident occurring increases after a vehicle is stolen. Further,
Plaintiff maintains that it is contradictory to say that while the purpose of La.R.S.
32:145 is to prevent theft of a vehicle, the duty imposed by the statute does not
extend to protect the foreseeable victim of an accident caused by the automobile
thief.
We find that although the fourth circuit concluded in DeCastro, 367 So.2d
83, that La.R.S. 32:145 does not go as far as to protect a plaintiff from being
negligently injured by one who has stolen a car, the DeCastro decision is not
binding authority for this court. Rather, we find that Plaintiff has made compelling
arguments in favor of a finding that the duty imposed by La.R.S. 32:145 extends to
situations in which the keys are left in a vehicle and the vehicle is then stolen and
driven recklessly by the thief who foreseeably causes injury to a third person.
3 We find that because Mr. Rogers acknowledges leaving the keys in the
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-444
STEVE BLANCHARD
VERSUS
MICHAEL J. MITCHELL, ET AL.
**********
SUPERVISORY WRIT FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2015-1928 HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges.
WRIT DENIED.
Joseph B. Stamey Stamey & Miller, L.L.C. P. O. Drawer 1288 Natchitoches, LA 71458-1288 (318) 352-4559 COUNSEL FOR DEFENDANT/RESPONDENT: State Farm Mutual Automobile Insurance Company Cory P. Roy Brandon J. Scott Benjamin D. James Renee Y. Roy Roy & Scott, Attorneys at Law 107 North Washington Street Marksville, LA 71351 (318) 240-7800 COUNSEL FOR PLAINTIFF/RESPONDENT: Steve Blanchard
Wade A. Johnson Law Office of Sheryl Story One Galleria Blvd, Suite 1500 Metairie, LA 70001-7551 (504) 846-4110 COUNSEL FOR DEFENDANT/APPLICANT: Robin Ewing Pool Supplies, Inc.
Mary K. Cryar Coverage Litigation Group One Galleria Blvd, Suite 1502 Metairie, LA 70001 (504) 846-4103 COUNSEL FOR DEFENDANT/APPLICANT: Valley Forge Insurance Company
Jeffrey S. Ingram 2757 Highway 28 East Pineville, LA 71360 (318) 484-3911 COUNSEL FOR DEFENDANT/RESPONDENT: State Farm Mutual Automobile Insurance Company
Michael J. Mitchell In Proper Person 424 Faithway Alexandria, LA 71302 COUNSEL FOR DEFENDANT/ RESPONDENT: Michael J. Mitchell SAUNDERS, Judge.
On June 26, 2014, Troy Rogers was acting within the course and scope of
his employment with Relator, Robin Ewing Pool Supplies, Inc. (“Robin Ewing
Pool Supplies”) when he went to a customer’s house to clean a swimming pool.
Mr. Rogers drove a vehicle owned by Relator to get to the customer’s home in
Alexandria, Louisiana. When Mr. Rogers arrived at the customer’s residence, he
parked the vehicle on the street in front of the residence. Mr. Rogers left the keys
in the vehicle during the twenty to twenty-five minutes that he was working on the
customer’s pool. While the vehicle was parked on the street, Michael Mitchell
entered the vehicle and drove away in it. When Mr. Rogers heard the vehicle crank
up, he ran after the vehicle and later reported it stolen. While Mr. Mitchell was
driving the vehicle owed by Relator, he got into an accident with Plaintiff, Steve
Blanchard. As a result of the accident, Plaintiff filed a personal injury lawsuit
against his UM insurer, State Farm Mutual Automobile Insurance Company; Mr.
Mitchell; and Relators herein (Robin Ewing Pool Supplies, and its UM insurer,
Valley Forge Insurance). Relators filed a motion for summary judgment seeking
dismissal of Plaintiff’s claims against them. The trial court denied the motion for
summary judgment, and Relators now seek review of that ruling.
SUPERVISORY RELIEF
Since the denial of a motion for summary judgment is an interlocutory ruling
from which no appeal may be taken, the only practical remedy available to avoid a
possible useless trial on the merits is to request that the appellate court exercise its
supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers,
526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988). ON THE MERITS
Relators assert that the trial court erred when it denied their motion for
summary judgment. Relators contend that Plaintiff is attempting to have them held
liable for the automobile accident at issue based on their violation of La.R.S.
32:145, which provides as follows:
No person driving or in charge of any motor vehicle shall permit it to stand unattended without first stopping the motor, locking the ignition, removing the key, and effectively setting the brake thereon, and, when standing upon any grade, turning the front wheels to the curb or side of the highway.
Relators maintain that Plaintiff takes the position that a violation of La.R.S. 32:145
constitutes a breach of duty owed to Plaintiff by Mr. Rogers (the employee of
Relator, Robin Ewing Pool Supplies). However, Relators argue that Louisiana has
rejected the doctrine of negligence per se. In that regard, Relators note the
Louisiana Supreme Court has stated that “[t]he terminology ‘negligence per se’ has
been rejected in Louisiana. The violation of a statute or regulation does not
automatically, in and of itself, impose civil liability. Civil responsibility is
imposed only if the act in violation of the statute is the legal cause of damage to
another.” Faucheaux, 615 So.2d at 292-93 (citation omitted). In the instant case,
Relators assert that Mr. Rogers, who left the keys in the vehicle owned and insured
by Relators, did not owe a duty to Plaintiff, and, alternatively, Relators argue that
even if a duty was owed to Plaintiff, the duty did not encompass the risk that a
thief would steal a vehicle and later become involved in an accident. In support of
their position, Relators cite various cases, including DeCastro v. Boylan, 367 So.2d
83, 84 (La.App. 4 Cir.), writ denied, 369 So.2d 458 (La.1979) (citations omitted),
wherein the fourth circuit held as follows:
The courts in the majority of jurisdictions which have statutes prohibiting the leaving of keys in unattended automobiles have 2 construed the purpose of these laws to be the protection of automobile owners or as an aid to police officers. They have not held its purpose to be the protection of third parties from the negligent operations of thieves. The purpose of the subject Louisiana statute appears to have been intended to prevent the theft of vehicles from the public streets and roadways. We conclude that R.S. 32:145 does not go as far as to protect a plaintiff from being negligently injured by one who has stolen his car with the keys left in it.
In his opposition to the instant writ application, Plaintiff argues that the
DeCastro decision is dated and that it does not appear to be in accord with the
more modern trend of finding that it is foreseeable that a stolen vehicle may be
used in a reckless manner thus causing injury to a third person. Plaintiff asserts
that the court in DeCastro, 367 So.2d 83, incorrectly concluded that the duty owed
under La.R.S. 32:145 does not extend to the victim of an accident caused by the
driver of the stolen vehicle. According to Plaintiff, it is foreseeable that a person
who is willing to steal a vehicle is going to drive it in a negligent manner in order
to avoid being discovered or arrested. As such, Plaintiff maintains that the
likelihood of an accident occurring increases after a vehicle is stolen. Further,
Plaintiff maintains that it is contradictory to say that while the purpose of La.R.S.
32:145 is to prevent theft of a vehicle, the duty imposed by the statute does not
extend to protect the foreseeable victim of an accident caused by the automobile
thief.
We find that although the fourth circuit concluded in DeCastro, 367 So.2d
83, that La.R.S. 32:145 does not go as far as to protect a plaintiff from being
negligently injured by one who has stolen a car, the DeCastro decision is not
binding authority for this court. Rather, we find that Plaintiff has made compelling
arguments in favor of a finding that the duty imposed by La.R.S. 32:145 extends to
situations in which the keys are left in a vehicle and the vehicle is then stolen and
driven recklessly by the thief who foreseeably causes injury to a third person.
3 We find that because Mr. Rogers acknowledges leaving the keys in the
vehicle owned by Relator, Robin Ewing Pool Supplies, he did violate La.R.S.
32:145. We note that the Louisiana Supreme Court has held that “[c]ivil
responsibility is imposed only if the act in violation of the statute is the legal cause
of damage to another.” Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289,
292-93 (La. 1993). Accordingly, in the instant case, we find that Mr. Rogers’
violation of La.R.S. 32:145 results in Relators (Mr. Rogers’ employer and that
employer’s insurer) having civil liability for Plaintiff’s damages only if that
statutory violation can be deemed to be a legal cause of Plaintiff’s damages. As
noted by Plaintiff, the jurisprudence has held that “[c]ause-in-fact and legal cause
are generally questions for the jury. The exception is when, under the uncontested
facts, reasonable minds could not differ.” Nicholson v. Calcasieu Parish Police
Jury, 96-314, p. 6 (La.App. 3 Cir. 12/11/96), 685 So.2d 507, 511 (citation omitted).
In the instant case, we find that the fact finder could reasonably conclude that Mr.
Rogers’ leaving the keys in the vehicle contributed to Plaintiff’s accident to some
extent.
For the foregoing reasons, we find that the trial court did not err in denying
Relators’ motion for summary judgment. Therefore, the instant writ application is
denied.
WRIT DENIED. We find no error in the trial court’s ruling.