Verna Jackson v. Louisiana Dept. of Transportation & Development

• Court: Louisiana Court of Appeal
• Decided: November 20, 2019
• Docket: CA-0019-0216
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

19-215 consolidated with 19-216, 19-217

SCOTT PRIVAT, TUTOR OBO AIDEN

B. COMEAUX

VERSUS

LOUISIANA DEPARTMENT OF TRANSPORTATION AND

DEVELOPMENT, ET AL.

consolidated with

VERNA JACKSON

BLAIR COMEAUX

DEVELOPMENT, ET AL. **********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 201411148, 201510048, 201510058 HONORABLE JOHN TRAHAN, DISTRICT JUDGE

**********

JOHN D. SAUNDERS JUDGE

Court composed of John D. Saunders, Phyllis M. Keaty, and Jonathan W. Perry, Judges.

AFFIRMED.

Perry, J. dissents.

Lawrence Blake Jones David C. Whitmore Blake Jones Law Firm, LLC 701 Poydras Street, Suite 4100 New Orleans, LA 70139 (504) 525-4361 COUNSEL FOR PLAINTIFF/APPELLANT: Verna Jackson

Kevin Paul Merchant NeunerPate 1001 W Pinhook Road, Suite 200 Lafayette, LA 70503 (318) 237-7000 COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Dept. of Transportation & Development Cedric Williams

Jeremy “Jay” Suire Glenn J. Armentor The Glenn Armentor Law Corporation 300 Stewart Street Lafayette, LA 70501 (337) 233-1471 COUNSEL FOR PLAINTIFF/APPELLANT: Blair Comeaux Jeff Landry Attorney General Hoai T. Hoang Lamont P. Domingue Special Assistants Attorney General 700 St. John Street, 5th Floor P. O. Box 3527 Lafayette, LA 70502-3527 (337) 232-9700 COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Dept. of Transportation & Development Cedric Williams

Bryan J. Haydel, Jr. Porteous, Hainkel & Johnson, LLP 301 St. Charles Street Baton Rouge, LA 70802 (225) 383-8900 COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Dept. of Transportation & Development Cedric Williams

Charles Brandt Kyle Sherman Kenneth M. Habetz, Jr. Brandt & Sherman, LLP 111 Mercury Street Lafayette, LA 70503 (337) 800-4000 COUNSEL FOR PLAINTIFF/APPELLANT: Scott Privat, Tutor obo Aiden B. Comeaux

Joseph E. Ritch Elliott & Ritch 321 Artesian Street Corpus Christi, TX 78401 (361) 883-3000 COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Dept. of Transportation & Development Cedric Williams SAUNDERS, Judge.

In this case we must decide whether the trial court’s grant of summary

judgment in favor of Defendants based on the emergency-preparedness immunity

afforded in La.R.S. 29:735 is proper.

FACTS AND PROCEDURAL HISTORY

Two vehicular accidents occurred in short succession in the early morning

hours of January 24, 2014, on a U.S. Highway 90 overpass between Crowley and

Rayne in Acadia Parish. Highway 90, including the subject overpass, was at all

times relevant within the State of Louisiana Highway System and was within the

responsibility of the Acadia Parish Department of Transportation and Development

(“DOTD”). Prior to the time of the accidents, on the night of January 23, 2014, and

extending into the early morning hours of January 24, 2014, temperatures dropped

below freezing, wintry precipitation began falling, and roads began icing over across

Louisiana, including Acadia Parish. In response to the winter weather that began on

January 23, 2014, all DOTD personnel in Acadia Parish were dispatched that

evening to engage in de-icing operations and constant roadway maintenance checks.

The wintry conditions which prompted DOTD’s roadway maintenance and de-icing

operations ultimately led then-Governor Jindal to declare a state of emergency for

the State of Louisiana by “Proclamation No. 9 BJ 2014.”

At all relevant times herein, Cedric Williams (“Williams”) was employed as

a Mobile Heavy Equipment Operator for DOTD. On January 23, 2014, Williams

worked his regular hours for DOTD until 4:30 p.m., helping load dump trucks. After

he worked that day, he was told to return to work that evening to work during the

winter weather event, operating a dump truck spreading an aggregate material onto

DOTD-maintained roadways to help create traction on potentially icy road surfaces.

At the time of the subject accidents, Williams was operating his DOTD truck eastbound on U.S. Highway 90 at an overpass near milepost 88 between Crowley

and Rayne. As he drove his DOTD truck up the bridge eastbound spreading MS-90

for ice, Williams’ truck hit a patch of ice, lost traction, began to slide into the

westbound lane, hit the west side of the bridge, and became immobilized near the

crest of the overpass blocking the westbound lane of travel.

At that time, Verna Jackson (“Jackson”) was driving a Chevrolet S-10 pickup

truck on Highway 90, and she crossed the subject overpass from the westbound

direction. As her truck neared the top of the overpass, Jackson’s vehicle collided

with Williams’ DOTD truck. Williams exited his vehicle to check on Jackson. A

Pontiac G6 being driven by Blair Comeaux (“Comeaux”), with Angelle Smith

(“Smith”) riding as the front passenger, then came up the subject overpass from the

same direction that Jackson had come, and the Comeaux/Smith vehicle collided with

Williams’ truck. Jackson, Comeaux, and Smith were allegedly injured in the

accident, and Smith later died from her injuries.

Jackson filed suit against Williams and his employer, DOTD, for injuries she

allegedly sustained in the accident of January 24, 2014, involving her pickup truck

and a dump truck owned by DOTD and driven by Williams.

Comeaux filed suit against Williams and DOTD for injuries he allegedly

sustained in a separate accident involving his vehicle and Williams’ DOTD-owned

dump truck, which also occurred on January 24, 2014, shortly after Jackson’s

accident. Comeaux had a passenger in his vehicle at the time of that second accident,

Smith, who died as a result of injuries she allegedly sustained in the accident. Scott

Privat, who is the tutor of Smith’s minor child, Aiden Comeaux, (“Privat”) thus filed

suit against Williams and DOTD on behalf of Aiden Comeaux. All three lawsuits

were consolidated before the trial court.

2 After the parties conducted discovery, Williams and DOTD filed a Motion for

Summary Judgment on August 3, 2018, contending that the statutory immunity

found in La.R.S. 29:735 for injury or death occurring as a result of “emergency

preparedness and recovery activities” provided them absolute immunity for the

claims brought against them by all three plaintiffs. The motion was heard on October

15, 2018, and the trial court signed a judgment on October 29, 2018, granting

summary judgment in favor of Cedric Williams and DOTD (collectively

“appellees”), and dismissing all claims against them. It is from this judgment that

Jackson, Comeaux, and Privat (collectively “appellants"), appeal, asserting multiple

assignments of error.

SCOTT PRIVAT, TUTOR O/B/O AIDEN B. COMEAUX, ASSIGNMENTS OF ERROR

1. The trial court erred in holding that Mr. Williams was conducting emergency preparedness activities at the time of the subject collision.

2. The trial court erred in failing to hold that Cedric Williams’ activities at the time of the subject collision constituted “willful misconduct” within the meaning of La.R.S. 29:735.

3. The trial court erred in granting the defendants’ motion for summary judgment and in holding that there were no genuine issues of material fact with regard to the activities of Cedric Williams at the time of the collision. DISCUSSION OF THE MERITS:

Appellants raise multiple assignments of error that each contend the trial court

erred in granting summary judgment in favor of Appellees. The individual

Appellants all adopt the arguments raised by all other Appellants. We will address

the three assignments of error listed above under one heading as each assigned error

is an argument for the alleged erroneous grant of summary judgment, which is

analyzed using the same standard of review.

3 In Dehart v. Jones, 18-764, p. 3 (La.App. Cir. 3/27/19), 269 So.3d 801, 804,

this court noted:

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

The immunity defense pursuant to La.R.S. 29:735 is an affirmative defense.

Rogers v. State ex rel. Dep’t of Public Safety & Corr., 07-1060 (La.App. 3 Cir.

1/30/08), 974 So.2d 919, writ denied, 08-504 (La. 4/25/08), 978 So.2d 37.

Accordingly, the burden of proof as to the application of an affirmative defense lies

with DOTD to prove that the immunity under The Louisiana Homeland Security and

Emergency Assistance and Disaster Act (“LHSEADA”) entitles it to summary

judgment. See La.Code Civ. P. art. 966(D).

DOTD argues that the LHSEADA, La.R.S. 29:735, and the definitions

provided in La.R.S. 29:723 entitle DOTD to immunity for the accidents involving

Verna Jackson, Blair Comeaux, and Angelle Smith. We agree.

Louisiana Revised Statutes 29:735(A)(1) provides:

Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents’ employees or representatives of any of them engaged in any homeland security and emergency preparedness and recovery activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.

In Fortner v. Lewis, 18-638, p. 4 (La.App. 3 Cir. 2/27/19), 266 So.3d

552, 555 (emphasis in original) this Court noted:

[Louisiana Revised Statutes 29:735] has no requirement that a State of Emergency must be declared by the Governor before immunity applies. Louisiana Revised Statutes 29:723(4) defines “emergency preparedness” 4 as “the mitigation of, preparation for, response to, and the recovery from emergencies or disasters.” Further, this portion of the statute indicates that “[t]he term ‘emergency preparedness’ shall be synonymous with ‘civil defense’, ‘emergency management,’ and other related programs of similar name.” Id.

Louisiana Revised Statutes 29:723(2) (emphasis ours) defines a “disaster” in pertinent part as “the result of a natural or man-made event which causes loss of life, injury, and property damage, including, but not limited to natural disasters such as hurricane, tornado, storm, flood, high winds, and other weather related events . . .” Louisiana Revised Statutes 29:723(3)(a) defines an “Emergency” as “[t]he actual or threatened condition which has been or may be created by a disaster[.]”

Application of La.R.S. 29:735 and La.R.S. 29:723

Louisiana Revised Statutes 1:3 provides, with respect to the interpretation of a

statute, as follows:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.

Louisiana Civil Code Article 9 provides, “When a law is clear and

unambiguous and its application does not lead to absurd consequences, the law shall

be applied as written and no further interpretation may be made in search of the intent

of the legislature.”

The evidence presented to the trial court by DOTD in the form of

documentation and affidavits, and the facts, when examined in the context of the

LHSEADA, La.R.S. 29:735, and the statutory definitions in La.R.S. 29:723, all

demonstrate that on the night of January 23, 2014, and extending into the early

morning hours of January 24, 2014, DOTD’s de-icing operations which consisted of

spreading an aggregate material onto the roadway to help create traction on

potentially icy roads were the result of “emergency preparedness” contemplated in

La. R.S. 29:735, and defined in La.R.S. 29:723(4) as “mitigation of, preparation for,

5 [and] response to . . . disasters.” “Emergency” as defined in La.R.S. 29:723(3)(a)

means: “[t]he actual or threatened condition which has been or may be created by a

disaster.” A “Disaster” is defined in La.R.S. 29:723(2) as a “natural or man-made

event which causes loss of life, injury, and property damage, . . . including other

weather-related events,” such as an ice storm in south Louisiana. Accordingly, we

agree with the trial court’s finding that Appellees were engaged in emergency

preparedness activities at the time of the subject accidents for which La.R.S. 29:735

provide immunity to state actors in the absence of “willful misconduct.”

Privat argues that La.R.S. 32:368 imposes a duty upon drivers of “disabled”

trucks and certain other vehicles to display warning devices during periods of law

visibility when the vehicle is disabled on the traveled or shoulder portion of the

highway. Louisiana Revised Statutes 32:368 provides, in pertinent part:

A. Whenever any freight carrying vehicle, passenger bus, truck tractor, trailer, semi-trailer, or any motor vehicle pulling a house trailer or other vehicle, is disabled upon the traveled portion of any highway of this state, or the shoulder thereof, at any time when lighted lamps are required on vehicles, the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway except as provided in Subsection B of this Section:

(1) A lighted fuse, a lighted red electric lantern or a portable red emergency reflector shall be immediately placed at the traffic side of the vehicle in the direction of the nearest approaching traffic. Privat asserts that after Williams’ truck struck the bridge wall, he did not do

anything to warn other motorists of the danger even though he knew it was important

to stop people from coming up the bridge after the crash. Privat contends that

Williams was aware of La.R.S. 32:368 which required him to put out “[a] lighted

fuse, a lighted red electric lantern or a portable red emergency reflector” to warn

other motorists of his disabled truck, however, Williams failed to take any action,

not even putting on his hazard lights, to warn other oncoming traffic of the dangerous

6 condition he had created. Nor did he put out the reflective triangles that he knew

were in his truck. Privat contends that Williams’ violation of this statute constitutes

negligence per se.

Louisiana Revised Statutes 32:368 applies to “any freight carrying vehicle,

passenger bus, tractor trailer, semi-trailer, or any motor vehicle pulling a house

trailer or other vehicle.” To accept this factual contention as a genuine issue of

material fact, we would have to find that Williams’ truck fits into one of these

categories, which it does not. Moreover, even if Williams violated DOTD policy by

failing to warn other motorists of the hazardous condition he had created while

engaged in “emergency preparedness activities,” Koonce makes it clear that

violations of internal policy in addition to technical violations of state law in the face

of an emergency does not necessarily constitute “willful misconduct,” such that the

immunity provided in La.R.S. 29:735 is voided. Koonce v. St. Paul Fire & Marine

Ins. Co., 15-31, p. 3 (La.App. 3 Cir. 8/5/15), 172 So.3d 1101, 1108, writ denied, 15-

50 (La. 11/30/15), 184 So.3d 36. Accordingly, we find that the statute does not

establish a duty that is applicable to the facts presented in this case.

Privat further argues that even if Williams’ activities are considered to fall

within the scope of emergency preparedness activities envisioned in La.R.S. 29:735,

his actions constitute “willful misconduct” thus precluding immunity under the

statute.

The only exception to the LHSEADA’s immunity provision with respect to

agents or employees of the state or its agencies is if an employee/agent is found to

have committed “willful misconduct” in the course of emergency preparedness

activities.

7 In Koonce, 172 So.3d at 1104-6 (quoting Haab v. E. Bank Consol. Special

Serv. Fire Prot. Dist. of Jefferson Parish, 13–954 p. 9 (La.App. 5 Cir. 5/28/14), 139

So.3d 1174, 1181, writ denied sub nom. Haab v. E. Bank Consol. Special Serv. Prot.

Dist. of Jefferson Parish, 14–1581 (La.10/24/14), 151 So.3d 609) this Court noted:

Whether a given set of conduct rises to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” is a standard created by law to determine whether liability will result from that conduct; as such, the question of whether a given set of conduct rises to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” is purely a question of law, and is within the province of the trial court to determine at the summary judgment stage.

“[To] constitute ‘willful misconduct’ [within the context of the LHSEADA]

requires some voluntary, intentional breach of duty, which may be unlawful,

dishonest, or improper, or perhaps all three, that is committed with bad intent or, at

best, with wanton disregard for the consequences.” Id. at 1105.

In Koonce, 172 So.3d at 1106 (quoting Cates v. Beauregard Elec. Coop, Inc.,

316 So.2d 907, 916 (La.App. 3 Cir. 1975), aff’d, 328 So.2d 367 (La.1976), cert.

denied, 429 U.S. 833 (1976), this Court explained:

The terms ‘willful’, ‘wanton’, and ‘reckless’ have been applied to that degree of fault which lies between intent to do wrong, and the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended . . . It is usually accompanied by a conscious indifference to consequences, amounting almost to willingness that harm should follow.

Moreover, in Haab, 13-954, p. 10 (La.App. 5 Cir. 5/28/14), 139 So.3d 1174,

1182, the fifth circuit concluded:

[O]nly the most egregious conduct by agents, employees, or representatives of public agencies that exhibits an active desire to cause harm, or a callous indifference to the risk of potential harm from flagrantly bad conduct, will rise to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” resulting in a forfeiture of all the immunity protections afforded by the

8 [Louisiana Homeland Security and Emergency Assistance] and the [Disaster Act and State Discretionary Immunity Statute].

Privat argues that Williams had a period of 10-15 minutes between the time

of the first and the second collision during which he took no action. He did not put

out a reflective triangle that he knew was in his truck, or turn on his hazard lights

“flashers,” or take any other action to warn oncoming traffic of the dangerous

condition he had created. Privat points out that the court found and stated in its

reasons for judgment that Williams was “negligent in several respects,” and argues

that the issue of whether this negligence rises to the level of “willful misconduct”

requires a “weighing of evidence” which is within the province of the trier of fact,

rather than that of the court of appeal. However, as this Court noted in Koonce, the

issue of whether a set of material facts rises to the level of “willful misconduct” is a

matter of law. Koonce, 172 So.3d at 1103-4. Our review of the record leads us to

conclude that the degree of negligence attributed to Williams in failing to warn

oncoming traffic of the dangerous condition he had created while engaged in

emergency preparedness, falls short of showing bad intent or wanton disregard.

VERNA JACKSON’S ASSIGNMENT OF ERROR

1. The trial court erred in finding that the immunity provided under La.R.S. 29:735 applies to appellees, State of Louisiana, through the Department of Transportation and Development, and Cedric Williams, as it pertains to Ms. Jackson’s failure to train allegations. In her sole assignment of error, Jackson contends that the trial court erred in

failing to find that the DOTD’s failure to properly train Williams over his seventeen-

year employment was the type of negligence for which Appellees may claim

immunity under La.R.S. 29:735. We disagree.

9 As previously stated, appellate courts review motions for summary judgment

de novo, “using the same criteria that govern the trial court’s determination of

whether summary judgment is appropriate.” Samaha, 977 So.2d at 882.

Jackson argues that the “failure to train” claim is separate and apart from any

“emergency preparedness activities” in which the State was involved in on January

24, 2014, in response to the discreet or specific condition or event to which Williams

and his crew were responding.

This argument artificially separates pieces of alleged negligent activity in a

temporal fashion that the statute’s causal requirement does not contemplate. As

discussed in the previous assignments, all that the statute requires for it to shield

Appellees from liability is that any death or injury occur “as a result of” emergency

preparedness activities. The only exception to the LHSEADA’s immunity provision

with respect to agents or employees of the state or its agencies is if an employee/agent

is found to have committed “willful misconduct” in the course of emergency

preparedness activities. At the time of the subject accidents, Williams was engaged

in emergency preparedness activities, which resulted in the death or injury of Jackson,

Comeaux, and Smith, for which Appellants have failed to show “willful misconduct.”

As such, Appellants have failed to demonstrate on appeal that Appellees did not meet

their burden of proof, or that the exception to the immunity statute applies.

Accordingly, we affirm the trial court’s ruling on this issue.

BLAIR COMEAUX’S ASSIGNMENTS OF ERROR

1. The trial court erred generally in finding that the immunity provided under La.R.S. 29:735 applies to appellees, the State of Louisiana and Cedric Williams, as it pertains to the crash involving Blair Comeaux.

2. The trial court erred in finding that no material issue of fact exists as to whether or not the injury and damages sustained by the Appellants were “as a result of” homeland security and emergency preparedness activity. 10 3. The trial court erred in finding that no material issue of fact exists as to when the “emergency situation,” for which immunity is sought, actually began, thereby further erring in failing to find that the statute is so vaguely broad that its application may lead to absurd results.

4. The trial court erred in finding that no material fact issue exists as to whether or not Appellees’ negligence prior to the arrival of winter weather actually led to and was a proximate cause of the Appellants injuries and damages.

5. The trial court erred in finding that no material issue exists as to whether Cedric Williams initially crashing his dump truck into the side of the bridge constituted a separate and severable incident – a newly created hazard separate and apart from the storm – such that the precise crash which injured Appellants did not occur “while [the defendants were] complying with or attempting to comply with [the LHSEADA].”

6. The trial court erred in finding that no material issue exists as to whether State/DOTD employees’ admissions under oath regarding lack of training and equipment and that Cedric Williams violated the safety rules prove per se negligence on the part of the Appellees prior to the storm activities, and whether said negligence was a proximate cause of Appellants’ injuries and damages. ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Comeaux contends that the trial court erred

generally in finding that the immunity provided under La.R.S. 29:735 applies to

appellees, the State of Louisiana and Cedric Williams, as it pertains to the crash

involving Blair Comeaux. We disagree.

As previously stated, appellate courts review motions for summary judgment

de novo, “using the same criteria that govern the trial court’s determination of

whether summary judgment is appropriate.” Samaha, 977 So.2d at 882.

Comeaux argues that there exists an issue of material fact as to whether the

initial crash of Williams’ truck against the rail of the bridge and the actions/inactions

of Williams and his co-workers in response to that particular incident created a

11 hazard wholly independent, separate and apart from any emergency preparedness

activities, and to which Appellees’ claim of immunity would not apply.

As discussed in the previous assignments, all that the immunity statute

requires for it to shield Appellees from liability is that any death or injury occur “as

a result of” emergency preparedness activities. The only exception to the

LHSEADA’s immunity provision with respect to agents or employees of the state

or its agencies is if an employee/agent is found to have committed “willful

misconduct” in the course of emergency preparedness activities. At the time of the

subject accidents, Appellees were engaged in emergency preparedness activities,

which resulted in the death or injury of Jackson, Comeaux, and Smith, for which

Appellants have failed to show “willful misconduct.” Appellees have established

that the two accidents in the instant suit occurred as a result of these emergency

preparedness activities: had Williams not been engaged in these emergency

preparedness activities, the accidents would not have occurred. As such, we find

that Appellees have met their burden of proof before the trial court that summary

judgment was warranted in their favor based on La.R.S. 29:735. Accordingly, we

affirm the trial court’s ruling on this issue.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, FOUR, AND FIVE:

We will address assignments of error two, three, four and five together as they

attempt to create additional requirements for the immunity to apply, none of which

are contained in the statute itself. Comeaux argues that there are genuine issues of

material fact as to whether the injury and damages sustained by Jackson, Comeaux,

and Smith were the “result of” Homeland Security and Emergency Preparedness

Activity. We disagree.

12 As previously stated, appellate courts review motions for summary judgment

de novo, “using the same criteria that govern the trial court’s determination of

whether summary judgment is appropriate.” Samaha, 977 So.2d at 882.

Comeaux contends that the trial court erred in failing to find: that DOTD’s

emergency preparedness activities ceased the moment that Williams’ truck lost

traction and struck the bridge; that striking the guardrail constituted a separate hazard

for which there is no immunity; that there are genuine issues of material fact as to

when the “emergency situation” actually began; and that Jackson’s, Comeaux’s, and

Smith’s injuries did not “result from” the emergency preparedness activities because

striking the guardrail was not “in furtherance of” emergency preparedness activities.

As discussed in the previous assignments, an “emergency” triggers the statute

that provides immunity to state agencies and their employees, provided that the state

agency and the employee(s) were responding to the “emergency.” The statute does

not contemplate an analysis of each individual action during that time frame, except

to determine whether the employee acted with “willful misconduct.” All that the

statute requires for the immunity to apply is that the injury or death result from the

state actor being engaged in emergency preparedness activity in compliance with

LHSEADA. The statute creates a causal, and not a temporal link between the alleged

injury and the emergency preparedness activity. At the time of the subject accidents

Appellees were engaged in emergency preparedness activities, which resulted in the

death or injury of Jackson, Comeaux, and Smith, for which Appellants have failed

to show “willful misconduct.” As such, we find that Appellees have met their burden

of proof before the trial court that summary judgment was warranted in their favor

based on La.R.S. 29:735. Accordingly, we affirm the trial court’s ruling on these

issues.

13 ASSIGNMENT OF ERROR NUMBER SIX:

In his sixth assignment of error Comeaux contends that an issue of material

fact exits as to whether State/DOTD employees’ admissions under oath regarding

lack of training and equipment, and that Williams violated the safety rules prove per

se negligence on the part of Appellees prior to the storm activities. Comeaux further

argues that an issue of material fact exists as to whether said negligence was a

proximate cause of Jackson’s, Comeaux’s, and Smith’s injuries and damages. We

disagree.

As previously stated, appellate courts review motions for summary judgment

de novo, “using the same criteria that govern the trial court’s determination of

whether summary judgment is appropriate.” Samaha, 977 So.2d at 882.

Comeaux argues that the dangers created by Williams’ initial crash with the

bridge and the additional dangers created by both DOTD and Williams’ negligence

in the months prior to the storm and in the minutes after the collision with the bridge

constituted negligence and/or willful misconduct which can be wholly severed from

emergency preparedness activities which were to take place on the evening in

question.

As discussed in the previous assignments, this argument artificially separates

pieces of alleged negligent activity in a temporal fashion that the statute’s causal

requirement does not contemplate. All that the statute requires for it to shield

Appellees from liability is that any death or injury occur “as a result of” emergency

preparedness activities. The only exception to the LHSEADA’s immunity provision

with respect to agents or employees of the state or its agencies is if an

employee/agent is found to have committed “willful misconduct” in the course of

emergency preparedness activities. At the time of the subject accidents, Appellees

were engaged in emergency preparedness activities, which resulted in the death or 14 injury of Jackson, Comeaux, and Smith for which Appellants have failed to show

“willful misconduct.” As such, we find that Appellants have failed to demonstrate

on appeal that Appellees did not meet their burden of proof, or that the exception to

the immunity statute applies. Accordingly, we affirm the trial court’s ruling on this

issue.

In defending their claims against summary judgment, Appellants’ burden was

only to present factual support sufficient to establish the existence of a genuine issue

of material fact or that Appellees were not entitled to summary judgment.

La.CodeCiv.P. art. 966(D)(1). Having found that at the time of subject accidents

Williams was engaged in emergency preparedness activities pursuant to a plan

implemented by DOTD, in accordance with the LHSEADA, for the public’s benefit,

we conclude that Appellants have failed to raise any genuine issues of material fact

with respect to whether Appellees are entitled to immunity. Accordingly, we affirm

the trial court’s grant of summary judgment in favor of Appellees, the Department of

Transportation and Development and Cedric Williams.

CONCLUSION:

After having performed a de novo review, we conclude that Appellees,

Department of Transportation and Development and Cedric Williams, proved that

no genuine issues of material fact remained and that they were entitled to judgment

as a matter of law. An “emergency” triggers the statute that provides immunity to

state agencies and their employees, provided that the state agency and the

employee(s) were responding to the “emergency.” The statute does not contemplate

an analysis of each individual action during that time frame, except to determine

whether the employee acted with “willful misconduct.” Appellants, Verna Jackson,

Blair Comeaux, and Scott Privat, tutor o/b/o Aiden B. Comeaux, have put forth no

sworn testimony, or no other form of competent summary-judgment evidence, 15 showing that Cedric Williams committed any voluntary, intentional breach of duty

with bad intent. Accordingly, we find no merit to the assertion that the summary

judgment granted in favor of Appellees, The Department of Transportation and

Development and Cedric Williams, was improper given the record before us.

All costs of this appeal are assessed against Verna Jackson, Blair Comeaux,

and Scott Privat, tutor o/b/o Aiden B. Comeaux.

16 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

LOUISIANA DEPT. OF TRANSPORTATION &

PERRY, Judge, dissenting.

Louisiana Revised Statutes 29:735 grants state personnel engaged in

emergency preparedness activities immunity from liability for death or injury,

except in cases of willful misconduct. See Fortner v. Lewis, 18-638 (La.App. 3 Cir.

2/27/19), 266 So.3d 552. “Immunity statutes are strictly construed against the party

claiming the immunity.” Id. at 555. If the defendants establish entitlement to

immunity, the burden shifts to the plaintiffs to show that there is conduct that would exempt the defendants from the immunity. Doyle v. Lonesome Dev., LLC, 17-787

(La.App. 1 Cir. 7/18/18), 254 So.3d 714, writ denied, 18-1369 (La. 11/14/18), 256

So.3d 291.

In support of their motions for summary judgment, the defendants offered the

affidavit of defendant, Cedric Williams, which declared, in relevant part, “After the

vehicle being driven by Verna Jackson collided with his immobilized dump truck,

he exited his vehicle to check on Verna Jackson[,]” and “After he had exited his

dump truck to check on Verna Jackson, the vehicle driven by Blair Comeaux

collided with his immobilized dump truck.”

The plaintiffs’ argue Mr. Williams’ failure to warn oncoming traffic of the

dangerous condition he had created while engaged in emergency preparedness

exempts the defendants from immunity. In their opposition to the defendants’

motions, the plaintiffs submitted Mr. Williams’ deposition testimony in which he

acknowledged safety equipment, such as a road reflector triangle, was aboard his

DOTD-owned dump truck. Yet, he admitted that for ten to fifteen minutes after his

truck became immobilized near the crest of the overpass, he did nothing to warn

others that his vehicle was blocking the westbound lane of travel—even neglecting

to turn on his hazard lights.

I find valid questions exist, particularly pertaining to whether Mr. Williams’

acts or omissions constitute “willful misconduct,” i.e., whether there was “some

voluntary, intentional breach of duty, which may be unlawful, dishonest, or

improper, or perhaps all three, that is committed with bad intent or, at best, with

wanton disregard for the consequences.” Koonce v. St. Paul Fire & Marine Ins.

Co., 15-31, p. 5 (La.App. 3 Cir. 8/5/15), 172 So.3d 1101, 1105, writ denied, 184

So.3d 36 (La. 11/30/15) (emphasis added). Therefore, I respectfully dissent from

2 the majority opinion and would reverse the trial court’s grant of the summary

judgments in favor of the defendants.