The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
03-1172
NICOLE WHITE, ET AL.
VERSUS
RAPIDES PARISH SCHOOL BOARD, ET AL.
**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 203,887
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE
**********
ARTHUR J. PLANCHARD
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Arthur J. Planchard*, Judges.
REVERSED AND REMANDED.
David D. Lind
Attorney at Law
1024 Eighth St.
Alexandria, LA 71301
Counsel for Plaintiff/Appellant:
Nicole White
*
Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.
Peggy Dean St.John
Attorney at Law
P. O. Box 6118
Alexandria, LA 71409
Counsel for Defendant/Appellee:
Phyllis Fulton
James M. Passman
Walker, Passman & Michiels
P. O. Box 13020
Alexandria, LA 71315
Counsel for Defendant/Appellee:
Rapides Parish School Board
H. Bradford Calvit
Attorney at Law
P. O. Drawer 1791
Alexandria, LA 71309-1791
Counsel for Defendant/Appellee:
City of Alexandria
William Francis Henderson
Attorney at Law
P. O. Box 12956
Alexandria, LA 71315-2956
Counsel for Defendant/Appellee:
Lynton O. Hester III
PLANCHARD, Judge**.
Plaintiff, Nicole White, individually and on behalf of her minor son, Plaintiff,
William R. Shepherd, appeals a judgment of the trial court granting a motion for
summary judgment filed by Defendant, the Rapides Parish School Board, dismissing
Plaintiffs’ claims at their cost. We reverse the judgment of the trial court and remand
the case for further proceedings.
FACTS
On April 12, 2000, William R. Shepherd rode his sister’s bicycle to school at the
South Alexandria Sixth Grade Center. He parked the bicycle and went to his classes.
Another student, Melissa Hester, had a similar bicycle stolen some time earlier. Upon
arriving at school, Melissa saw the bicycle William rode to school and believed it to
be hers. She reported her suspicion to the school authorities and received permission
to make a closer inspection of the bicycle to try to confirm her suspicion. After a close
inspection, she reported she found “scratch marks that looked like those” on her
bicycle, and believed the bicycle to be hers. The principal then had the guidance
counselor call the police.
Subsequently, William Shepherd, then 13 years old, was taken to the principal’s
office at school. It is alleged that he was neither advised of why he was being
questioned nor of any of his constitutional rights, nor was he allowed to contact his
mother. He was questioned by police, handcuffed, and taken away in a police car. He
was seen by other students being taken away in handcuffs. Following a subsequent
investigation, it was determined that the bike belonged to Shepherd, not the other
child.
**
Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.
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White, on her own behalf and on behalf of her son, Shepherd, sued the Rapides
Parish School Board, the Alexandria Police Department, the parents of the other child,
and their various insurers. The parents of the other child were dismissed from the suit.
Following dismissal of Melissa’s parents, the Rapides Parish School Board filed
its own motion for summary judgment asserting it was protected from suit by
discretionary immunity under La.R.S. 9:2798.1. The trial judge granted the School
Board’s motion and Plaintiffs appealed.
LAW AND DISCUSSION
Before us is the trial court’s grant of a motion for summary judgment filed by
the School Board asserting its discretionary immunity under La.R.S. 9:2798.1.
The Plaintiffs appeal asserting as error that the trial court erred in finding that
the school board was immune from liability arising from its discretionary acts,
because:
1) The school board is not a branch or department of the state as required
by the statute, and
2) Even if the statute is applicable to school boards, it is not applicable to
“acts or omissions which constitute criminal, fraudulent, malicious,
intentional, willful, outrageous, reckless or flagrant misconduct” such as
those by the school towards Shepherd.
Fist, the immunity afforded by La.R.S. 9:2798.1 applies to political subdivisions
and boards of the State. Louisiana Revised Statute 13:5102 (B) (emphasis ours) states:
“As the term is used in this Part, ‘political subdivision’ means any parish,
municipality, special district, school board, sheriff, public board, institution,
department, commission, district, corporation, agency, authority, or an agency or
subdivision of any of these, and other public or governmental body of any kind which
is not a state agency.” Clearly, the Rapides Parish School Board qualifies as a political
subdivision of the State.
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We now turn our attention to the more weighty question, whether under the facts
of this case, the trial judge was correct in finding that there were no issues of disputed
fact and that the School Board was entitled to summary judgment as a matter of law.
Recently, in Thiels v. American Int’l. S. Ins. Co., 03-774, 775, 776,777, p. _
(La.App. 3 Cir. 12/10/03), ___ So.2d ____, this court reviewed the standard of
appellate review of summary judgments stating as follows:
In Louisiana, summary judgment is now favored and it shall be
used to secure the just, speedy, and inexpensive determination of all
actions, except those specifically excluded in La.Code Civ.P. art. 969.
La.Code Civ.P. art. 966(A)(2). A summary judgment shall be rendered
if the pleadings, depositions, interrogatory responses, and admissions,
together with any affidavits, show that there is no genuine issue of
material fact and that the mover is entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(B). Material facts are those that have the
potential to insure or preclude recovery, affect a litigant's ultimate
success, or determine the outcome of a legal dispute. Rambo v. Walker,
96-2538 (La.App. 1 Cir. 11/7/97), 704 So.2d 30. Appellate courts review
summary judgments de novo applying the same criteria as the trial court
to determine whether summary judgment is appropriate. Schroeder v. Bd.
of Sup'rs, 591 So.2d 342 (La.1991). Accordingly, we undertake a de
novo review of the matter at bar.
The party moving for summary judgment has the burden of
affirmatively showing the absence of a genuine issue of material fact.
Any doubt as to whether the moving party has met that burden should be
resolved against granting the motion. Bradford v. Louisiana Downs, Inc.,
606 So.2d 1370 (La.App. 2 Cir.1992). The likelihood that a party will
prevail on the merits does not constitute a basis for granting a motion for
summary judgment. Claiborne v. Conagra, Inc., 96-482 (La.App. 3 Cir.
10/30/96), 682 So.2d 851.
In the case sub judice, the School Board claims immunity from suit under the
provisions of La.R.S. 9:2798.1; and alternatively, that “even without the immunity
provided by La.R.S. 9:2798.1," it is entitled to summary judgment.
Louisiana Revised Statute 9:2798.1, titled “Policymaking or discretionary acts
or omissions of public entities or their officers or employees,” states the following
(emphasis ours):
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A. As used in this Section, "public entity" means and includes the
state and any of its branches, departments, offices, agencies, boards,
commissions, instrumentalities, officers, officials, employees, and
political subdivisions and the departments, offices, agencies, boards,
commissions, instrumentalities, officers, officials, and employees of such
political subdivisions.
B. Liability shall not be imposed on public entities or their officers
or employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when such
acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not
applicable:
(1) To acts or omissions which are not reasonably related to the
legitimate governmental objective for which the policymaking or
discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct.
D. The legislature finds and states that the purpose of this Section
is not to reestablish any immunity based on the status of sovereignty but
rather to clarify the substantive content and parameters of application of
such legislatively created codal articles and laws and also to assist in the
implementation of Article II of the Constitution of Louisiana.
In Misuraca v. City of Kenner, 01-707, p.7 (La.App. 5 Cir. 11/14/01), 802 So.2d
784, 789, our brethren of the fifth circuit observed as follows:
In Cormier v. T.H.E. Ins. Co., 98-2208 (La. 09/08/99), 745 So.2d
1, the Louisiana Supreme Court explained the Discretionary Immunity
doctrine as follows:
Generally, 'Discretionary Immunity' under
La.Rev.Stat. 9:2798.1 applies to specific fact situations
which satisfy the rule enunciated in Berkovitz v. United
States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531
(1988). Under Berkovitz, the court must first consider
whether the government employee had an element of choice
and his course of action was not specifically prescribed by
the statute, regulation, or policy. Conduct cannot be
discretionary unless it involves an element of judgment or
choice. 108 S.Ct. at 1958. Thus, discretionary immunity
will not apply when a specific course of action is prescribed
as the employee has no rightful option but to adhere to the
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directive. Id. On the other hand, when discretion is
involved, the court must then determine whether that
discretion is the kind shielded by the exception: one
grounded in social, economic, or political activity. If it is,
then the doctrine applies and the employee or agency is
insulated from liability; if it is not, the employee or agency
is liable for any negligence.
Id. at 6-7.
In brief, the School Board argues that the actions of the Board’s employees at the
South Alexandria Sixth Grade Center clearly fall within the purview of Berkovitz.
The Supreme Court, in Berkovitz, explained:
The exception relevant to this case provides that no liability shall lie for
“[a]ny claim . . . based upon the exercise or performance or
the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a).
Berkovitz, 108 S.Ct. at 1958 (emphasis ours).
However, the immunity conferred by La.R.S. 9:2798.1 is not as broad as that
conferred by 28 U.S.C. § 2680(a). Section (C)(2) of La.R.S. 9:2798.1 specifically
exempts from immunity “acts or omissions which constitute criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.”
Therefore, there is a material issue of disputed fact to be resolved: Did the actions of
the Board’s employees constitute “malicious, intentional, willful, outrageous, reckless,
or flagrant misconduct?”
Alternatively, the Board argues that under the duty-risk analysis Plaintiffs
cannot prove it is liable.
Under the duty-risk analysis, plaintiff must prove that the conduct
in question was a cause-in-fact of the resulting harm, the defendant owed
a duty of care to plaintiff, the requisite duty was breached by the
defendant, and the risk of harm was within the scope of protection
afforded by the duty breached. Berry v. State, Through Department of
Health and Human Resources, 93-2748 (La.5/23/94), 637 So.2d 412,
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414. Whether a duty is owed is a question of law. Id. The inquiry is
whether the plaintiff has any law--statutory, jurisprudential, or arising
from general principles of fault--to support his claim. Id. Governmental
agencies in the performance of governmental functions may be subjected
to the imposition of certain duties, the breach of which may result in
liability for damages to those injured by a risk contemplated by that duty.
Id. The determination of whether a particular duty should be imposed on
a particular governmental agency is a policy question. Id. It is our role
to determine whether there is any jurisprudential or statutory rule or
policy reason why, under the facts and circumstances of this case, [the
Board] . . . would owe a duty to plaintiff to compensate her for her [her
son’s injuries] . . . . Id.
Misuraca, 802 So.2d at 789-90.
We find the School Board and its employees had the duty to act reasonably
under the circumstances. We make no determination as to how they acted or if they
breached the duty, that remains a factual issue to be determined by the trier of fact.
Accordingly, we find there remains disputed issues of material fact which
preclude the rendering of summary judgment. We reverse the judgment of the trial
court and remand the case for further proceedings. Costs of this appeal are assessed
against Appellant, the Rapides Parish School Board.
REVERSED AND REMANDED.
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