The opinion
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
DAVID BENTON AND ASHLIE DOWNEY NO. 2020 CW 1214
PAGE 1 OF 3
VERSUS
STATE OF LOUISIANA, THROUGH THE
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES AND THE
DEPARTMENT OF TRANSPORTATION AND
AUGUST 13, 2021
DEVELOPMENT, ASHLEY SHIELDS, AND
RONNIE R. ROUNDTREE
In Re: The State of Louisiana, through the Department of
Children and Family Services and Ashley Shields, applying
for supervisory writs, 21st Judicial District Court,
Parish of Tangipahoa, No. 2017- 807.
BEFORE: WHIPPLE, C. J., McDONALD, THERIOT, HOLDRIDGE, AND PENZATO, JJ.
WRIT GRANTED. The trial court' s September 8, 2020 judgment
denying thesummary judgment
motion filed by for State of the
Louisiana through the Department of Children and Family Services
and Ashley A. Shields on the issue of immunity pursuant to La.
R. S. 29: 735( A)( 1) is reversed and the motion for summary
judgment is granted. There is no dispute that, at the time of
the accident, the State of Louisiana was in a declared state of
emergency due to flooding. Further, the evidence submitted by
defendants in support of their motion for summary judgment
establishes that Ashley A. Shields, an employee of the Louisiana
Department of Children and Family Services (" DCFS"), was
traveling outside of her normal work hours to an alternate work
location at the direction of the DCFS to distribute Disaster
Supplemental Nutritional Assistance Program (" DSNAP") cards to
flood victims. This directive and the extraordinary travel
incident thereto caused her to be engaged in a homeland security
and emergency preparedness and recovery activity at the time of
the accident. See Lumpkin v. Lanfair, No. 2009- 6248, 2010 WL
3825427 ( E. D. La. 2010).
Jim+!
MRT
AHP
Whipple, C. J., dissents and would
deny the writ. While
Louisiana courts have given " emergency preparedness and recovery
activities" a liberal interpretation, the statute itself
provides that in order for immunity to apply the employee must
be engaged in that activity and the injury to a person must be
as a result of such activity. The circumstances of this case are
distinguishable from, for example, Koonce v. St. Paul Fire &
Marine Insurance Co., 2015- 31 ( La. App. 3d Cir. 8/ 5/ 15), 172 So.
3d 1101, writ denied, 2015- 1950 ( La. 11/ 30/ 15), 184 So. 3d 36,
where
immunity was extended to the Calcasieu Parish Sheriff' s
Office and its deputy who were evacuating prisoners by bus away
from a hurricane at the time a crash occurred. In this case,
Ms. Shields was merely driving from her home in her boyfriend' s
vehicle to an assigned work location, but had not begun of
any
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
2020 CW 1214
PAGE 2 of 3
her work duties at the workplace. In my view, relators have not
established that
she was engaged in an emergency preparedness or
recovery activity at the time of the accident.
Holdridge, J. dissents. La. Code Civ. P. art. 966( A)( 3)
states that " 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 the mover is
entitled to judgment as a matter of law." Article 966( F)
further provides that "[ a]
summary judgment may be rendered only
as to those issues set forth in the motion under consideration
by the court at that time." The sole issue in this motion for
summary judgment is whether the mover has come forth with
sufficient evidence to show that a person who is involved in a
vehicular accident
over forty miles away from a disaster relief
distribution site is engaged in emergency preparedness
activities such that she is entitled to immunity pursuant to La.
R. S. 29: 735 for any damages she have her
may caused by
negligence.
The immunity defense provided by La. R. S. 29: 735 is
an affirmative defense. Rogers v. State ex rel. Dep' t of Public
Safety & Corr., 2007- 1060 ( La. App. 3d Cir. 1/ 30/ 08), 974 So. 2d
919, writ denied, 2008- 504 ( La. 4/ 25/ 08), 978 So. 2d 37. The
burden is on the DCFS to prove through admissible and relevant
documents that the defendant, Ashley Shields, was engaged in an
emergency preparedness activity when she was
driving her
boyfriend' s personal vehicle on her way to a disaster relief
site and that she was
immunity for
entitled to any of her
negligent acts while driving in accordance with La. R. S. 29: 735.
Robertson v. St. John the Baptist Parish, 2015- 240 ( La. 5th
App.
Cir. 10/ 14/ 15), 177 So. 3d 785, 789.
De novo review of the evidence presented by the DCFS in the
form of documentation, affidavits, and depositions, all
demonstrate that Ms. Shields, having recently exited her
subdivision in her boyfriend' s vehicle, struck a pedestrian in a
lighted intersection. It further shows that she was in
Tangipahoa Parish, approximately forty miles from Franklinton,
Louisiana, where she was to distribute DSNAP cards to flood
victims. At oral argument, it was stated that Ms. Shields did
not have the DSNAP cards in her possession, but that the cards
were at the distribution relief site in Franklinton. The
threshold issue here
immunity. isWe do not have before us Ms.
Shields' liability under a
duty/ risk analysis. Whether Ms.
Shields was in in
negligent any way failing to see the
plaintiff, who was wearing dark clothing and standing in the
middle of a
highway, talking, with his back toward the traffic
in the darkness of the early morning is not before us. There is
also a substantial legal issue as to whether Ms. Shields owed
any duty to the defendant under the circumstances of this case.
However, these issues have not been raised in this motion for
summary judgment.
The sole issue at this time is whether Ms. Shields was
engaged
in emergency preparedness activities at the time of the
accident and is entitled to immunity under La. R. S. 29: 735.
Louisiana courts have found the following activities qualify as
emergency preparedness activities" under La. R. S. 29: 735:
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
2020 CW 1214
PAGE 3 of 3
engaging in sandbagging activities and getting into an accident
in a state owned vehicle,' removing debris, 2 inspecting culverts
and drainage structures, 3 making arrests and transporting
arrestees or prisoners, 4 removing an earthen berm obstructing
drainage, 5 responding to a house fire, 6 failing to provide proper
warnings in advance of a disaster,' driving a military truck to
haul materials,$ a spare tire corning off a national guard vehicle
and striking another vehicle while on a mission to pick up
automotive parts for hurricane relief operations. 9 In this case,
I believe genuine issues of material fact remain
concerning
whether a state employee driving a friend' s car is entitled to
immunity for an accident which occurs over forty miles from the
disaster relief distribution area. A genuine issue of material
fact is one as to which reasonable minds could disagree. Periso
v. Vu, 2013- 1601 ( La. App. 1st Cir. 7/ 17/ 14), 2014 WL 3535342;
Price v. Chain Electric Company, 2018- 162 ( La. App. 5th Cir.
11/ 28/ 18), 259 So. 3d 1249. Clearly, reasonable people could
disagree as to whether the travel in this case by the defendant
is an integral part of an emerQencv preparedness activitv.
since there is a question in Louisiai a law as to the scope of
immunity for state employees under ja. R. S. 29: 735, summary
judgment is not the proper procedur, 1 mechanism to determine
this issue. Without a trial wherein G Ll facts and circumstances
can be placed into evidence, it woul be legal error to grant
immunity from liability to all state mployees driving in their
personal vehicles to disaster loca ions for any of their
negligent actions no matter the d stance from the actual
disaster assistance activity. 10 The state has failed in its
burden of
proving that there are no genuine issues as to any
material facts and that Ms. Shields is entitled to immunity as a
matter of law. Accordingly, I dissent and would deny the writ.
COURT OF APPEAL, FIRST CIRCUIT
54. PuT,Y
FOR
CLERK
THE
OF
COURT
COURT
1 McQuirter v. State through Louisiana Dep' t of Pub. Safety & Corr. Elayn Hunt Corr.
Ctr., 2020- 1192 ( La. 1/ 12/ 21), 308 So. 3d 265.
2 Castillo v. Lafayette City -Pariah Consolidated Government, 2004- 1569 ( La. App. 3d
Cir. 3/ 2/ 05), 896 Sc. 2d 1261.
3 Fryoux v. Tensas Basin Levee Dist., 2012- 991 ( La. App. 3d Cir. 2/ 6/ 13), 2013 WL
440129.
Noyel v. City of St. Gabriel, 2015- 1890 ( La. App. 1st Cir. 9/ 1/ 16), 202 So. 3d 1139.
s Neil v. Lafourche Parish Council, 2013- 0587 ( La. App. 1st Cir. 2/ 7/ 14), 2014 WL
505479.
6 Haab v. E. Hank Consol. Special Serv. Fire Prot. Dist. of Jefferson Parish, 2013- 954
La. App. 5th Cir. 5/ 28/ 14), 139 So. 3d 1174.
Robertson v. St. John the Baptist Parish, 2015- 240 ( La. 5th Cir. 10/ 14/ 15), 1' 77
App.
So. 3d 785.
e Lemoine v. United States, No. CIV. A. 2007- 8478, 2009 WL 2496561 ( E. D. La. 8/ 13/ 09).
Martin v. United States, No. CIV A. 2007- 663- FJP- CN, 2008 WL 11417740 ( M. D. La.
9/ 24/ 06).
10 Under such a broad interpretation, a state employee leaving New Orleans to help
distribute aid in Lake Charles could stop for the night in Baton Rouge and
Lafayette, and maybe even Opelousas,
and have immunity from any negligent acts which
he may commit on his journey to provide disaster relief.