Leon Boyd v. Rapides Parish Sheriff's Department

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

24-537

JOHN KITE, ET AL.

VERSUS

RAPIDES PARISH SHERIFF’S DEPARTMENT, ET AL.

CONSOLIDATED WITH

24-538

LEON BOYD, ET AL.

VERSUS

RAPIDES PARISH SHERIFF’S DEPARTMENT, ET AL.

**********

APPEAL FROM THE

NINTH JUDICIAL DISTRICT COURT

PARISH OF RAPIDES, DOCKET NOS. 252,993 AND 253,035

HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

**********

JONATHAN W. PERRY

JUDGE

**********

Court composed of Candyce G. Perret, Jonathan W. Perry, and Guy E. Bradberry,

Judges.

AFFIRMED.

Jared Dunahoe

DUNAHOE LAW FIRM

402 Second Street

Natchitoches, Louisiana 71457

(318) 352-1999

COUNSEL FOR PLAINTIFFS/APPELLANTS:

Ja’La Wanya Boyd, Ja’Marsha Deon Boyd, and Tauriez Kite

H. Bradford Calvit

Eli J. Meaux

PROVOSTY, SADLER, deLAUNAY, APC

4615 Parliament Dr., Suite 200

Alexandria, Louisiana 71315-3530

COUNSEL FOR DEFENDANTS/APPELLEES:

William Earl Hilton and The Princeton Excess and Surplus Lines Insurance

Company

Richard A. Rozanski

RICHARD A. ROZANSKI, APLC

2312 South MacArthur Drive

Alexandria, Louisiana 71301

(318) 445-5600

COUNSEL FOR DEFENDANTS/APPELLEES:

The City of Alexandria, Earl Williams, Sr. and Henry Jacobs

Misty Shannon Antoon

LAW OFFICE OF MISTY SHANNON ANTOON, LLC

2312 South MacArthur Drive

Alexandria, Louisiana 71301

(318) 792-3514

COUNSEL FOR DEFENDANTS/APPELLEES:

The City of Alexandria, Earl Williams, Sr., and Henry Jacobs

PERRY, Judge.

In this wrongful death and survival action involving a victim killed by an

escaped prisoner, Plaintiffs appeal the dismissal of their action against a former

sheriff and his insurer, on a motion for summary judgment. We affirm the trial

court’s judgment.

FACTS AND PROCEDURAL HISTORY

McKennedy Armstead (“Armstead”) was a Department of Correction

(“DOC”) inmate incarcerated in the Rapides Parish Detention Center III, serving a

two-and-one-half-year sentence for Possession of a Controlled Dangerous

Substance, Schedule II. On June 2, 2014, Armstead was acting as a trusty

performing labor for the City of Alexandria (“the City”) at the City’s Utility

Department (“the Utility Department”). On that day, Henry Jacobs (“Jacobs”) and

Earl Williams, Sr. (“Williams”), two Utility Department employees who had been

commissioned by the Rapides Parish Sheriff (“Sheriff”), were supervising

Armstead.

While working for the Utility Department, Armstead accessed the keys to a

City truck and escaped. He drove the City vehicle near his mother’s house in

Alexandria, walked to his mother’s home, retrieved a gun, and convinced his cousin,

Antonio Calhoun (“Calhoun”), to drive him to the home of his girlfriend, Johnnie

Kite (“Ms. Kite”), in Grant Parish. Calhoun drove Armstead to Ms. Kite’s house

and remained in the vehicle while Armstead entered Ms. Kite’s house. Once inside,

Ms. Kite’s three children exited the house and got into Calhoun’s vehicle. After

Calhoun drove away, Armstead shot and killed Ms. Kite and then committed suicide.

On May 28, 2015, John Kite (“Mr. Kite”), father of Ms. Kite, as Administrator

of the Succession of Ms. Kite and on behalf of her minor children, Ja’La Wanya

Boyd (“Ja’La”), Ja’Marsha Deon Boyd (“Ja’Marsha”), and Tauriez Kite (“Tauriez”),

filed suit against the Rapides Parish Sheriff’s Department (“Sheriff’s Department”),

former Sheriff William Earl Hilton (“Sheriff Hilton”), the Utility Department, and

Mayor Jacques Roy, alleging the wrongful death of Ms. Kite. Mr. Kite alleged that

Armstead was incarcerated in a work release program sponsored and supervised by

the Sheriff’s Department and additional supervision was provided by commissioned

deputies employed by the Utility Department and the City.

On June 3, 2015, another Petition for Damages was filed by Leon Boyd

(“Boyd”) also on behalf of the minor children of Ms. Kite, Ja’La and Ja’Marsha,

while Aline Craft (“Ms. Craft”) filed suit on behalf of the minor child, Tauriez. Boyd

alleged that he was the father, caretaker, and natural tutor of Ja’La and Ja’Marsha,

while Ms. Craft alleged that she was the aunt of Tauriez and had care, custody and

control of him. The petition filed by Boyd and Ms. Craft mirrored the claims raised

in Mr. Kite’s petition.

After the two lawsuits were consolidated, an amended and supplemental

petition was filed by Mr. Kite. It named and substituted Boyd as the natural tutor of

the minor children, Ja’La and Ja’Marsha. It also named and substituted Tauriez

Shaw as the natural tutor of the minor child, Tauriez. A second amending and

supplemental petition was later filed, adding the following as Defendants: Jacobs,

Williams, and Princeton Excess and Surplus Lines Insurance Company

(“Princeton”), the alleged insurer of the Sheriff, Jacobs, and Williams. Later, a third

amending and supplemental petition was filed, stating that Ja’La, Ja’Marsha, and

Tauriez (collectively “Plaintiffs”) were no longer minors and sought to be

substituted as proper party plaintiffs.

2

In answer to the various petitions, the Sheriff denied fault, alleged the fault of

Armstead and the City, invoked the protections of La.R.S. 9:2798.1 and La.R.S.

15:708, and further contended that Armstead was not in the process of escaping

when Ms. Kite was killed. In their answers to the various petitions, the City,

Williams, and Jacobs alleged that Armstead was not in the process of escaping when

the shooting of Ms. Kite occurred, that Armstead was motivated by purely personal

reasons, and that there was no independent duty to Ms. Kite, a Grant Parish resident,

which encompassed the risk of harm.

After discovery was completed, the Sheriff and Princeton (collectively

“Defendants”) filed a Motion for Summary Judgment, asserting four arguments:

first, the Sheriff complied with the legal requirements outlined in La.R.S. 15:708 to

allow a trusty to work for the City; second, whether the Sheriff or a deputy should

have put in place more or different policies or should not have allowed Armstead to

be selected for the City work program were discretionary acts under the provisions

of La.R.S. 9:2798.1; third, there is no proof or evidence that the Sheriff committed

criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant

misconduct; and fourth, Plaintiffs have no proof that the unfortunate death of Ms.

Kite occurred while Armstead was in the process of escaping. Therefore, the Sheriff

and Princeton asked that they be granted summary judgment.

In a separate filing, the City, Jacobs, Williams, the Sheriff, and Princeton filed

a Joint Motion for Summary Judgment, asserting four arguments: first, Armstead

was no longer in the process of escaping when he was at Ms. Kite’s home in Grant

Parish when the offense occurred; second, Armstead was acting in furtherance of his

own pursuits when he committed the offense at Ms. Kite’s home; third, Ms. Kite

was not within the scope of duty of Defendants; and fourth, Defendants were not the

3

cause in fact of the offense. Therefore, they sought to have the lawsuits against them

dismissed with prejudice.

Plaintiffs opposed both Motions for Summary Judgment. They made three

basic arguments contending that the Sheriff was independently and grossly

negligent: (1) in allowing Armstead to participate in the trusty program considering

his extensive and violent criminal history; (2) in failing to properly train Jacobs and

Williams; and (3) in failing to follow his policies and procedures and have the City

execute a contract to use trusties. They further argued that the Sheriff was

vicariously liable for the gross negligence of Jacobs and Williams. Additionally,

they argued that the Sheriff and the City were not entitled to the limitation of liability

found in La.R.S. 15:708(H) because Armstead was not a prisoner sentenced to a

parish prison or a prisoner in a parish prison awaiting transfer to a state correctional

facility.

In support of Plaintiffs’ contentions, they further relied upon the affidavit of

W. Lloyd Grafton (“Grafton”), who they presented as an expert in the field of law

enforcement training, actions, policies and procedures; his accompanying

deposition; as well as other depositions in the record. Defendants objected to

Grafton’s affidavit and depositional testimony on various grounds, including, but

not limited to, the filing of a challenge under La.Code Civ.P. art. 1425(F) to whether

Grafton qualified as an expert witness. Before ruling on the motions for summary

judgment, the trial court heard argument on whether Grafton lacked the expertise to

offer expert opinions and whether his opinions touched on the ultimate issue for the

factfinder.

After considering the record filings and the oral arguments of the parties, the

trial court granted the Motion for Summary Judgment filed by the Sheriff and his

4

insurer, Princeton, finding no genuine issue of material fact concerning his lack of

liability based on the gross negligence standard enunciated in La. R.S. 15:708. It

also granted the Sheriff’s Motion in Limine, concluding that Grafton’s opinions were

inadmissible. On May 28, 2024, the trial court rendered judgment in favor of the

Sheriff and Princeton, as follows:

After considering the Motions, Memoranda, Exhibits and

applicable law and hearing argument, and for the reasons for Judgment

given in open court, the Motion for Summary Judgment filed on behalf

of Defendants, WILLIAM EARL HILTON, IN HIS FORMER

CAPACITY AS SHERIFF OF RAPIDES PARISH and THE

PRINCETON EXCESS AND SURPLUS LINES INSURANCE

COMPANY, was granted. However, the claim that THE PRINCETON

EXCESS AND SURPLUS LINES INSURANCE COMPANY

provided coverage for Earl L. Williams, Sr., and Henry Jacobs was not

before the Court; accordingly, the claims made against THE

PRINCETON EXCESS AND SURPLUS LINES INSURANCE

COMPANY for coverage for the claims made against Earl L. Williams,

Sr., and Henry Jacobs are not dismissed and remain.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED

that the Motion for Summary on the Motion for Summary Judgment

filed by Defendants, WILLIAM EARL HILTON, IN HIS FORMER

CAPACITY AS SHERIFF OF RAPIDES PARISH and THE

PRINCETON EXCESS AND SURPLUS LINES INSURANCE

COMPANY, is hereby granted, dismissing all claims made against

Defendants, WILLIAM EARL HILTON, IN HIS FORMER

CAPACITY AS SHERIFF OF RAPIDES PARISH and THE

PRINCETON EXCESS AND SURPLUS LINES INSURANCE

COMPANY, but only as the insurer for the claims against Defendant,

WILLIAM EARL HILTON, IN HIS FORMER CAPACITY AS

SHERIFF OF RAPIDES PARISH, with full prejudice, with Plaintiffs

to pay the costs of the defendants, WILLIAM EARL HILTON, IN HIS

FORMER CAPACITY AS SHERIFF OF RAPIDES PARISH and THE

PRINCETON EXCESS AND SURPLUS LINES INSURANCE

COMPANY.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED

that the Motion in Limine is hereby granted and that the Affidavit of

[W.] Lloyd Grafton be stricken and is not considered in opposition to

the Motion for Summary Judgment.

Plaintiffs appealed the judgment of May 28, 2024.

5

At the same time that the trial court granted the Defendants’ Motion for

Summary Judgment, the trial court denied the City’s Motion for Summary

Judgment. In an unpublished writ ruling, this court denied the City’s application for

a supervisory writ. On February 28, 2025, the supreme court held that Armstead’s

escape was complete before he entered Ms. Kite’s house and murdered her.

Accordingly, in a per curiam opinion, it granted the City’s writ application, reversed

the trial court judgment, and dismissed the Plaintiffs’ claims against the City, the

Sheriff, Williams, and Jacobs. Kite v. Rapides Parish Sheriff’s Dep’t, 24-1351 (La.

2/28/25), 401So.3d 1262. Based upon that decision, we affirmed the trial court’s

judgment as it related to the Sheriff and Princeton. Kite v. Rapides Parish Sheriff’s

Dep’t, 24-537, 24-538 (La.App. 4/9/25), 408 So.3d 1237.

The Plaintiffs sought a rehearing of the supreme court’s decision dated

February 28, 2025. On June 3, 2025, the supreme court granted the Plaintiffs’

application for rehearing and vacated its prior per curiam opinion in Kite, 401So.3d

1262. See Kite v. Rapides Par. Sheriff’s Dep’t, 24-1351 (La. 6/3/25), 410 So.3d 768.

On the strength of the supreme court’s latest ruling, the Plaintiffs applied for

a writ of certiorari from our April 9, 2025 decision. On November 5, 2025, the

supreme court granted the Plaintiffs’ writ of certiorari and remanded the case to us

for reconsideration in light of its June 3, 2025 ruling on rehearing. Kite v. Rapides

P. Sheriff’s Dep’t, 25-589 (La. 11/5/25), 421 So.3d 967. Accordingly, we will

address the other assignments of error that we did not discuss in our earlier opinion.

6

ASSIGNMENTS OF ERROR

Plaintiffs suggest the Trial Court erred when it granted: (1) the Defendants’

Motion for Summary Judgment, and (2) Defendants’ Motion in Limine when it

struck the affidavit of Plaintiffs’ expert, Grafton.

APPELLANTS’ ARGUMENT

Plaintiffs argue that there is a genuine issue of material fact about whether the

Sheriff breached his duty to manage the affairs of the prison so as not to create an

unreasonable risk of harm to the public. Accordingly, they urge us to reverse the

trial court’s grant of summary judgment.

They contend that the Sheriff was independently grossly negligent when he

failed to properly train the deputies assigned to supervise Armstead while he worked

as a trusty for the City. According to them, it was reckless for the Sheriff to permit

a dangerous and convicted felon/inmate to work as a trusty without requiring the

supervisors of the inmate to have had basic training or experience in law

enforcement.

Additionally, they argue that there is a genuine issue of material fact about

whether the Sheriff is vicariously liable for the gross negligence of Williams and

Jacobs, both commissioned deputies, in failing to properly supervise Armstead. The

Plaintiffs point out that the sole task of Williams and Jacobs was to supervise trustees

such as Armstead. Despite this, they contend that these deputies allowed Armstead

to make telephone calls and gain access to a vehicle. They argue that had these

deputies followed the rules for supervising trustees, Armstead would never have

escaped. More generally, they suggest that it was grossly negligent for the Sheriff

to allow Armstead to participate in the trusty program considering his extensive and

violent criminal history.

7

In this regard, too, the Plaintiffs argue that the trial court erred when it granted

Defendants’ Motion in Limine, striking Grafton’s affidavit that purportedly

addressed the issue of gross negligence. Supporting their argument, the Plaintiffs

argue that: (1) Grafton’s affidavit complied with the requirements of La.Code Civ.P.

art. 967 as it set forth his opinions and described the factual basis for those opinions;

and (2) Grafton’s opinion that the Sheriff breached its duty was based on the

following facts: (a) the Sheriff placed Armstead into the custody of two individuals

who had no training or experience in law enforcement; and (b) Armstead was

permitted to gain access to a vehicle and to make a telephone call while working as

a trusty.

Additionally, the Plaintiffs contend that Grafton showed that he was

competent to testify because: (a) he had a doctorate and master’s degree in criminal

justice; (b) he served for decades as a professor of criminal justice and taught classes

specifically on corrections; (c) from 1972 to 1990, the U.S. Bureau of Alcohol,

Tobacco, Firearms and Explosives employed him as a special agent who, in part,

trained police officers; (d) he was an instructor at the Federal Law Enforcement

Center; and (e) the Federal Bureau of Prisons employed him as an instructor of

corrections officers.

In sum, the Plaintiffs contend that it was the Sheriff’s gross negligence in

failing to follow his policies and procedures that allowed Armstead to escape.1

1

The Plaintiffs further argue that Ms. Kite’s death occurred during or as an integral part

of the process of Armstead escaping. In that respect, they contend that, as shown by the record,

Ms. Kite was killed less than two hours after Armstead fled and her death occurred within thirty

miles of the Utility Department. Because of our resolution of this case on the Plaintiffs’ failure to

establish another essential element of their case, as outlined more fully below, and the supreme

court’s ruling dated June 23, 2025, we do not reach the question of whether Armstead killed Ms.

Kite while he was in the process of escaping.

8

APPELLEES’ POSITION

The Defendants assert that the trial court did not err when it granted their

Motion for Summary Judgment. As applied by the trial court, the correct standard

applicable to the Sheriff is the gross negligence standard enunciated in La.R.S.

15:708(H). Although Plaintiffs argue that the immunity recognized in La.R.S.

15:708(H) is inapplicable because of Armstead’s alleged status, the Defendants

contend that such an argument is not supported by Louisiana Supreme Court

jurisprudence that has applied the gross negligence standard in similar cases.

Moreover, whether under either gross negligence or typical negligence standards,

they argue that the Sheriff is not liable as his actions did not violate any duty owed

to Ms. Kite or anyone else. In this regard, they contend that the trial court did not

err when it granted the Defendants’ Motion for Summary Judgment.

Furthermore, in reaching that determination, the Defendants urge us to find

that the trial court did not err when it granted Defendants’ motion to exclude

Grafton’s opinions stated in his affidavit and deposition. Initially, they contend that

Grafton: (a) lacked any current training, education or experience in corrections,

including a lack of knowledge regarding the process of selecting trusties; (b) his

corrections experience occurred in the 1960s; and (c) his knowledge was general,

not expertise. Lastly, the Defendants argue that Grafton’s opinions were

impermissible because they touched upon ultimate issues of liability and were

beyond his area of expertise. Therefore, under applicable evidentiary law, the

Defendants contend that the trial court correctly found that Grafton’s opinions stated

in his affidavit and deposition were properly excluded or struck.

9

GRAFTON’S AFFIDAVIT

The Procedural History

On November 13, 2023, the Defendants filed their initial Motion for Summary

Judgment. Subsequently, on February 21, 2024, the Plaintiffs filed their Opposition

to Defendants’ Motions and Supplemental Motions for Summary Judgment. Among

the items attached and relied upon in support of their argument was Grafton’s

affidavit.

Thereafter, on March 6, 2024, the Defendants filed their Reply to the

Plaintiffs’ Opposition to Motion for Summary Judgment, seeking to exclude

Grafton’s opinions and affidavit from consideration in opposition to the Motions for

Summary Judgment, as well as his future testimony at trial; in support of their

argument in the reply memorandum, the Defendants attached Grafton’s deposition

taken on February 29, 2024. On March 20, 2024, the Defendants, out of an

abundance of caution, further filed a Motion In Limine (Daubert Motion), seeking

to exclude Grafton’s opinions and affidavit from consideration in opposition to the

Motions for Summary Judgment, as well as any testimony by him at trial.

In response, the Plaintiffs filed an objection to the attachment of Grafton’s

deposition to Defendants’ reply to the plaintiffs’ opposition to the Motion for

Summary Judgment and Defendants’ Motion in Limine. The Plaintiffs argued that

by virtue of La.Code Civ.P. art. 966(D)(2), the Defendants were prohibited from

offering any exhibit, specifically Grafton’s deposition, with their reply

memorandum. Furthermore, the Plaintiffs asserted that Defendants’ Motion In

Limine was untimely.

Assuming for purposes of argument that the Defendants improperly included

Grafton’s deposition in their reply memorandum, we find, as explained below, that

10

there is no merit to the Plaintiffs’ argument. It is well-accepted that “[w]e look

through a pleading’s caption, style, and form to determine its substance and to do

substantial justice to the parties.” Metro Riverboat Associates, Inc. v. La. Gaming

Control Bd., 01-185, p. 6 (La. 10/16/01), 797 So.2d 656, 660. Even though the

Defendants later filed an independent Daubert motion, we consider the Defendants’

opposition in their reply to constitute a motion under La.Code Civ.P. art. 1425(F)

and recognized in La.Code Civ.P. art. 966(D)(3).

Louisiana Code of Civil Procedure Article 966(D)(3) states:

If a timely objection is made to an expert's qualifications or

methodologies in support of or in opposition to a motion for summary

judgment, any motion in accordance with Article 1425(F) to determine

whether the expert is qualified or the expert's methodologies are reliable

shall be filed, heard, and decided prior to the hearing on the motion for

summary judgment.

From the outset, the Plaintiffs argue that the Defendants’ motion is untimely.

We disagree. A motion under La.Code Civ.P. art. 1425(F)(1) “shall be filed not later

than sixty days prior to trial . . . [.]” In the present case, no trial was currently

scheduled when the motion was heard. Whether we consider the filing date of

Defendants’ reply memorandum or their later filed Motion in Limine, we find their

opposition to Grafton’s affidavit and trial testimony was timely raised.

The Merits of the Motion in Limine

Louisiana Code of Civil Procedure Article 1425(F)(3) states that “[i]f the

ruling is made at the conclusion of the hearing, the court shall recite orally its

findings of fact, conclusions of law, and reasons for judgment.” Additionally,

La.Code Civ.P. art. 967 further states: “The supporting and opposing affidavits of

experts may set forth such experts’ opinions on the facts as would be admissible in

11

evidence under Louisiana Code of Evidence Article 702, and shall show

affirmatively that the affiant is competent to testify to the matters stated therein.”

“[T]he trial court’s discretion in controlling the admission of expert testimony

is well established in Louisiana jurisprudence.” S. Casing of La.,, Inc. v. Houma

Avionics, Inc., 00-1930, 00-1931, p. 24 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040,

1055. The trial court has great discretion in determining the sufficiency of the

qualifications for a witness to testify as an expert. State v. Mays, 612 So.2d 1040

(La.App. 2 Cir.), writ denied, 619 So.2d 576 (La.1993).

In the present case, the record contains Grafton’s deposition. In his testimony,

Grafton stated that he: (1) was not familiar with Louisiana law concerning what

prisoner could serve as a trusty; (2) was not familiar with any POST provisions

relative to that issue; (3) was not acquainted with the provisions of La.R.S. 15:708;

and (4) although he had actual corrections training from California in the 1960s, that

training would not have been relevant to a Louisiana jail setting in 2017. Against

that background, the trial court concluded that Grafton’s training and life experience

were too far removed and too generalized to provide expertise to the trier of fact.2

We find that the trial court’s conclusions in that regard are fully supported by

the decision in Carter as Next Friend for Carter v. City of Shreveport, (W.D. La.

2023) (2023 WL 2775662). In that opinion, the plaintiffs offered Grafton’s opinions

about medical treatment of a wheelchair-bound inmate in a correctional facility.

There, the court was asked not to qualify Grafton to testify concerning policies

relating to such medical treatment.

2

At this time, only the City of Alexandria has sought a trial by jury. Therefore, even if a

jury would have determined the liability of the City, the trial judge, as the trier of fact, would have

been tasked with separately determining the Sheriff’s liability.

12

It held:

Plaintiff asserts that, even if Grafton cannot testify as to the

proper treatment for wheelchair-bound individuals specifically,

Grafton can opine to general jail policies and procedures due to his

experience as a law enforcement officer. See Record Document 59 at

4. However, merely being able to read jail procedures and form a

general opinion about them does not make one an expert on those

procedures. See In re Air Crash Disaster at New Orleans, La., 795 F.2d

1230, 1233 (5th Cir. 1986) (“Stated more directly, the trial judge ought

to insist that a proffered expert bring to the jury more than the lawyers

can offer in argument.”). And as Defendants point out, “Grafton has

not worked as a correctional officer, has never been trained on the

policies and procedures of a municipal correctional facility (only

‘reviewed’ them), and has never worked as a consultant with a

correctional facility.” See Record Document 51-1 at 8. Thus, Grafton

lacks the training and specialized knowledge pertaining to jail policies

that would qualify him as an expert in his proposed field of tender.

Carter at 3.

Beyond that, the trial court was faced with Grafton’s varied pronouncements

about ultimate issues of the case. In that regard, Plaintiffs’ counsel conceded that

Grafton’s opinions on legal cause and gross negligence were not admissible.

“When an expert opinion constitutes the actual legal conclusion, it goes

beyond what is helpful to the [fact finder] and is not admissible.” Lafayette Steel

Erector, Inc. v. G. Kendrick, LLC, 22-0892, p. 14 (La.App. 1 Cir. 8/29/23), 375

So.3d 464, 475, writ denied, 23-01316 (La. 12/19/23), 375 So.3d 414 (citing Islam

v. Walmart, Inc., 21-629 (La.App. 5 Cir. 6/8/22), 343 So.3d 883, writ denied, 22-

01053 (La. 10/12/22), 348 So.3d 70; and Burk v. Ill. Cent. Gulf R.R. Co., 529 So.2d

515, (La.App. 1 Cir.), writ denied, 532 So.2d 179 (La.1988)).

For these reasons, we find the trial court did not abuse its discretion when it

excluded Grafton’s affidavit and his deposition testimony. Accordingly, we find no

merit to the Plaintiffs’ assertion that the trial court erred in excluding Grafton’s

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affidavit in support of their motion for summary judgment as well as his future

testimony at trial.

SUMMARY JUDGMENT

Appellate courts review motions for summary judgment using a de novo

standard. Planchard v. New Hotel Monteleone, LLC, 21-347 (La. 12/10/21), 332

So.3d 623. An appellate court assesses whether summary judgment is appropriate

utilizing the same standard as the trial court to determine “whether there is any

genuine issue of material fact, and whether the movant is entitled to judgment as a

matter of law.” Id. at 625. `

Initially, the burden of producing evidence at the motion hearing is on the

mover, “who can ordinarily meet that burden by submitting affidavits or by pointing

out the lack of factual support for an essential element in the opponent’s case.”

Schultz v. Guoth, 10-343, p. 6 (La. 1/19/11), 57 So.3d 1002, 1006. Procedurally,

therefore, the court’s first task is to determine whether the moving party’s motion,

memorandum, affidavits, and supporting documents are sufficient to resolve all

material factual issues. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.

7/5/94), 639 So.2d 730. “To satisfy this burden, the mover must meet a strict

standard of showing that it is quite clear as to what is the truth and that there has

been excluded any real doubt as to the existence of a genuine issue of material fact.”

Indus. Sand & Abrasives, Inc. v. Louisville & Nashville R.R. Co., 427 So.2d 1152,

1154 (La.1983).

In making this determination, the court must closely scrutinize the mover’s

supporting documents, while treating those submitted by the adverse party

indulgently. Smith, 639 So.2d 730. Moreover, because the moving party bears the

burden of proving the lack of a material issue of fact, we must view all inferences

14

drawn from the underlying facts in a light most favorable to the adverse party.

Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991).

If we determine that the moving party has met this onerous burden, the burden

then shifts to “the adverse party to produce factual support sufficient to establish the

existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law.” La.Code Civ.P. art. 966(D)(1). “At that point, the

party who bears the burden of persuasion at trial (usually the plaintiff) must come

forth with evidence (affidavits or discovery responses) which demonstrates he or she

will be able to meet the burden at trial.” Babin v. Winn-Dixie La., Inc., 00-78, p. 4

(La. 6/30/00), 764 So.2d 37, 39.

As our courts have long held, “summary judgment may be granted when

reasonable minds must inevitably conclude that the mover is entitled to judgment on

the facts before the court.” Smith, 639 So.2d at 752. However, “[o]nce the motion

for summary judgment has been properly supported by the moving party, the failure

of the non-moving party to produce evidence of a material factual dispute mandates

the granting of the motion.” Babin, 764 So.2d at 40.

We further note that the summary judgment procedure is favored and, by law,

shall be construed to accomplish the ends for which it was designed: “to secure the

just, speedy, and inexpensive determination of every action[.]” La.Code Civ.P. art.

966(A)(2).

With these principles in mind, we now turn to Defendants’ Motion for

Summary Judgment.

Analysis

In Roberts v. Benoit, 605 So.2d 1032, 1051 (footnotes omitted), the supreme

court stated:

15

To prevail on a negligence claim under La.Civ.Code arts. 2315

and 2316, a plaintiff must prove five separate elements: (1) the

defendant had a duty to conform his conduct to a specific standard (the

duty element); (2) the defendant failed to conform his conduct to the

appropriate standard (the breach of duty element); (3) the defendant’s

substandard conduct was a cause-in-fact of the plaintiff’s injuries (the

cause-in-fact element); (4) the defendant’s substandard conduct was a

legal cause of the plaintiff’s injuries (the scope of liability or scope of

protection element); and, (5) actual damages (the damages element).

In the present case, the applicability of La.R.S. 15:708, particularly the

limitation of the Sheriff’s liability, and the Sheriff’s entitlement to summary

judgment thereunder is at issue here. In that regard, La.R.S. 15:708 provides, in

pertinent part, as follows:

A. (1) Whenever a prisoner sentenced to a parish prison of any

parish of the state, by any court of competent jurisdiction, or a prisoner

in a parish prison awaiting transfer to a state correctional facility shall

be willing of his own free will to perform manual labor upon any of the

public roads, levees, streets, or public buildings, works, or

improvements inside or outside of the prison, or in or upon the

buildings, other improvements, or property of any organization which

has qualified for tax-exempt status under 26 USC 501(c)(3),

501(c)(19), or 501(c)(23), the sheriff may set the prisoner to work.

....

H. A prisoner participating in any of the inmate labor programs

authorized by this Section shall have no cause of action for damages

against the sheriff or any parish or municipal authority conducting the

program or supervising his participation therein, nor against any

deputy, employee, or agent of such sheriff or parish or municipal

authority, for any injury or loss suffered by him during or arising out of

his participation in the program, unless the injury or loss was caused by

the intentional or grossly negligent act or omission of the sheriff or the

parish or municipal authority or the deputy, employee, or agent of the

sheriff or parish or municipal authority. Nor shall liability be imposed

on the sheriff or the parish or municipal authority or the deputies,

employees, or agents of the sheriff or the parish or municipal authority

for any injury caused by a prisoner participating in any of the inmate

labor programs authorized by this Section unless the gross negligence

or intentional act of the sheriff or any parish or municipal authority or

the deputy, employee, or agent of the sheriff or the parish or municipal

authority was a substantial factor in causing the injury. No provision

hereof shall negate the requirement to provide a prisoner with necessary

medical treatment as statutorily required.

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The Plaintiffs argue that La.R.S. 15:708 is inapplicable because Armstead was

not sentenced to the parish prison, and he was not awaiting transfer to a state

correctional facility. Additionally, the Plaintiffs contend that beyond that, Armstead

was violent and was ineligible for the trusty program.

Lieutenant Jay Slayter (“Lieutenant Slayter”) was a commissioned deputy

under the former Sheriff Hilton and for succeeding sheriffs of Rapides Parish. At

the time of this litigation, he was Warden of Rapides Parish Detention Center II.

Commencing on July 1, 2012, he was assigned to Corrections Investigations. On

June 2, 2014, Lieutenant Slayter was assigned to investigate Armstead’s escape from

the care, custody, and control of the City. In his deposition and affidavit, he

confirmed that Armstead was an inmate serving time for the Louisiana Department

of Corrections (“DOC”) at the Rapides Parish Detention Center III. He also stated

that Armstead was first approved to be a trusty on June 3, 2013, and that he was

qualified to leave the facility and provide labor to the City. After reviewing

numerous computer entries, he confirmed that Armstead was serving time for a

narcotics conviction, that he was not considered dangerous, that he was not

considered an escape risk, and that at the time of his escape, he only had eighteen

days left to serve on his conviction before his release date of June 20, 2014.

After considering these facts de novo and that the Plaintiffs have not traversed

them, we find no merit to the Plaintiffs’ initial contention that La.R.S. 15:708 was

inapplicable to this litigation. Thus, we find that liability may only be imposed on

the Sheriff if the Plaintiffs can show that the gross negligence or intentional act “of

the sheriff or any parish or municipal authority or the deputy, employee, or agent of

the sheriff or the parish or municipal authority was a substantial factor in causing the

injury” to Ms. Kite. La.R.S. 15:708(H). Additionally, after conducting a de novo

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review of the facts presented in support of the Defendants’ Motion for Summary

Judgment, we find no merit to the Plaintiffs’ contention that Armstead was ineligible

for the trusty program.

Failure to Train

We now address the Plaintiffs’ contention that the Sheriff was grossly

negligent when he failed to train the two City employees who supervised Armstead

as he worked at the Utility Department.

In the present case, Lieutenant Slayter stated that he conducted the corrections

investigation of Armstead’s escape from the Utility Department. As the former

Warden of Rapides Parish Detention Center III and later as Warden of Rapides

Detention Center II, he said that he had personal knowledge of the trusty program

the City implemented to have Armstead work in the Utility Department, and he was

well familiar with the Trusty/Inmate Work Contract (the “Work Contract”) signed

by the individuals3 who supervised Armstead while he worked at the Utility

Department.

The Work Contract, in pertinent part, specified the following rules and

regulations:

1. A commissioned employee shall be assigned and shall be responsible

at all times for directly supervising the work performed by inmates.

This commissioned employee shall be at the expense of the agency

requesting the inmate(s). This employee may be required to produce

his/her commission card before he/she can pick up their inmate(s).

2. Inmate(s) shall never be left alone unsupervised.

3. Inmate(s) shall not be allowed to have visitors or telephone calls

while assigned to your agency. (Including use of computers)

3

Even though the record contains signed contracts by Jacob and another City

employee/trusty supervisor, Anthony Carmouche, we note that the contract attached to Williams’s

deposition is unsigned. Nonetheless, the signed contracts inform us about what expectations the

Sheriff had of the City and its commissioned inmate supervisors.

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....

7. Inmate(s) shall not be allowed to operate any type of motor vehicle,

farm or construction machinery at any time. (Ex.: Car, truck, van,

tractor, backhoe, etc.)

....

9. Instances of any inmate who refuses to work, has a bad attitude, acts

inappropriately, leaves his/her assigned duty area without

authorization, becomes ill or is injured or escapes from custody shall

be reported immediately to the Rapides Parish Sheriff’s Office.

....

15. If a commissioned employee of the assigned agency is either

terminated or resigns his/her position their commission card will be

returned immediately to the Sheriff’s Office before another employee

will be commissioned.

16. It is responsibility of the agency to make all employees supervising

inmate(s) aware of these rules and regulations.

Jacobs and Williams, long-time maintenance workers at the Utility

Department, having worked respectively, twenty-three and nineteen years, became

commissioned deputies with the Sheriff’s Department because they sometimes

transported inmates from the detention center to work at the Utility Department and

supervised them while they worked at the Utility Department. Although they were

given an identity card and a badge, they did not carry a firearm and did not receive

pay from the Sheriff; as part of the protocol, these supervisors were required to

present these when they picked up inmates from the detention center. Neither the

City nor the Sheriff’s Department trained them on how to supervise inmates.

When the inmates worked in the Utility Department, they cleaned the break

room, the bathrooms, and dumped the trash under the supervision of either Jacobs

or Williams or another commissioned deputy employed by the City. While the

commissioned deputies supervised the trusty, they would always keep the trusty

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within their line of sight, as required by the Work Contract, except when the trusty

went to the bathroom.

Both Jacobs and Williams knew Armstead. Jacobs said he never had any

problems with Armstead. He described him as happy and a hard worker who did

not cause problems, and who just did his work; he also said that he had never heard

that Armstead had any problems with any other City employee at any time. Williams

commented that Armstead was a good person, hard-working, and respectful; he also

recalled that Armstead told him that he was eighteen days away from being released

from prison.

Jacobs described the Light Department, a large building within the Utility

Department, as having a fenced yard. Entry to the complex was through a driveway

which has a gate that is operated by a remote control kept in the truck. There is no

guard shack at the gate. All City vehicles are parked inside the gate with public

parking outside the gate. The Light Department is wide open inside, except for four

offices. Both Jacobs and Williams explained that the keys to the City vehicles were

kept in an office in the Light Department on a board that is labeled with numbers

corresponding to the vehicles that the key operates; Williams did not know if the

vehicle keys were locked or not.

On the day of Armstead’s escape, Jacobs said that he never saw Armstead and

that Williams supervised Armstead in the Light Department. While under

Williams’s supervision, Armstead asked for cleaning materials. Even though these

materials were kept in a storage room, he stated that he could see in to the warehouse

where Armstead was working. In response to that request, Williams walked to

another part of the Light Department to get the supplies and gave them to Armstead.

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After handing Armstead the cleaning supplies, Armstead told Williams that

he was going to clean a fan as Jacobs instructed. Williams stated that he returned to

the storage room for more cleaning supplies; during that time, there was a period of

about two or three minutes when his back was turned, and Armstead was not in his

line of sight. While Williams was retrieving the cleaning supplies, another inmate

shouted that Armstead was gone. Before that time, no trusty had ever escaped from

the Light Department.

After being told that Armstead was gone, Williams notified Jacobs. Upon

receiving that information, Jacobs called the detention center and told the Sheriff’s

Department what happened. In light of these facts, we turn our attention to the

jurisprudence best addressing the Plaintiffs’ contentions.

Relying on Roberts, 605 So.2d at 1056, the Plaintiffs argue that the purpose

of the Sherrif’s duty to train his deputies “is to insure that deputies perform their law

enforcement duties competently.” Although we may agree with this holding in

Roberts, we find it inapposite to the facts of the present case that involve the use of

specially commissioned deputies whose only duty was to supervise a trusty who

worked offsite.

In that regard, we find that Skinner v. State, 14-193 (La.App. 3 Cir. 10/1/14),

149 So.3d 193, better informs our decision in the present matter. There, we stated:

Neither the Sheriff nor his employees were . . . on site and did not

supervise the daily activities of inmates at the worksite. The Sheriff

did not assign the manual labor tasks. Finally, the remaining

defendants allege the Sheriff did not properly train the RRWC

employees who had a special limited commission from the RPSO for

the purpose of supervising the inmates. We find the contract is clear

about the duties of the RRWC employees to supervise the inmates

under their charge at all times, and any further training would not have

prevented this particular accident.

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We further note that imposing any of these duties on the Sheriff

in this case would have a detrimental effect on the ability of any sheriff

to allow inmates to participate in work programs outside the jail for

other public entities. The cost of expanded training and inspections of

facilities would be prohibitive.

Id. at 347.

As stated in Ambrose v. New Orleans Police Department Ambulance Service,

93-3099, 93-3110, 93-3112, pp. 5–6 (La. 7/5/94), 639 So.2d 216, 219–20 (internal

citations omitted):

Gross negligence has been defined as the “want of even slight care and

diligence” and the “want of that diligence which even careless men are

accustomed to exercise.” Gross negligence has also been termed the

“entire absence of care” and the “utter disregard of the dictates of

prudence, amounting to complete neglect of the rights of others.”

Additionally, gross negligence has been described as an “extreme

departure from ordinary care or the want of even scant care.” “There is

often no clear distinction between such [willful, wanton, or reckless]

conduct and ‘gross’ negligence, and the two have tended to merge and

take on the same meaning.” Gross negligence, therefore, has a well-

defined legal meaning distinctly separate, and different, from ordinary

negligence.

The facts show that in the Work Contract the Sheriff specified the supervision

duties that the specially commissioned deputies were to follow, namely, that the

inmate “shall never be left alone unsupervised.” This contractual charge is self-

explanatory, and we find that no further training of the inmate supervisors would

have prevented Armstead’s escape. After carefully considering the facts presented

in support of the Defendants’ Motion for Summary Judgment and cognizant of the

well-established definition of gross negligence, we find no merit to the Plaintiffs’

contention that the Sheriff was grossly negligent in this regard.

Vicarious Liability

Next, we turn to the Plaintiffs’ contention that the Sheriff was vicariously

liable for the actions/inactions of the two commissioned deputies in the City’s

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employ. Louisiana Civil Code Article 2320, the source for vicarious liability,

provides, in pertinent part, that “[m]asters and employers are answerable for the

damage occasioned by their servants and overseers, in the exercise of the functions

in which they are employed.”

The single most important factor to consider in deciding whether

the employer-employee relationship exists, for purposes of La. C.C. art.

2320, is the right of the employer to control the work of the employee.

Roberts v. State, Through the Louisiana Health and Human Resources

Administration, 404 So.2d 1221, 1225 (La. 1981) (citing Hickman v.

Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385

(1972), and Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968)).

In Blanchard, this court stated: “It is the right of control of the time and

physical activities in the other party and the existence of a close

relationship between the parties which determine that one is a servant.”

Id., 253 La. at 44, 215 So.2d at 905. This court further stated:

“‘Servant’ must be interpreted as that particular kind of agent who has

a very close economic relation to, and is subject to very close control

by, the principal. A servant is one who offers his personal services for

a price. He is an integral part of his employer’s business and must

submit to the control of his physical conduct as well as of his time.”

Id., 253 La. at 47, 215 So.2d at 906. The four primary evidentiary

factors considered in deciding whether such an employer-employee

relationship exists relate to whether the alleged employer has the right

or duty, relative to the employee, of: (1) selection and engagement; (2)

payment of wages; (3) power of dismissal; and (4) power of control.

Hillman v. Comm-Care, Inc., 01-1140, p. 8 (La. 1/15/02), 805 So.2d

1157, 1162. However, no one factor is controlling; rather, the totality

of the circumstances must be considered, and the burden of proof is on

the party seeking to establish an employer-employee relationship.

Hillman, 01-1140 at pp. 8-9, 805 So.2d at 1163.

Bolden v. Tisdale, 21-224, p. 13 (La. 1/28/22), 347 So.3d 697, 708.

Reviewing those factors and the facts presented in support of the Defendants’

Motion for Summary Judgment, we make the following observations: (1) Williams

and Jacobs were employed by the City and neither of them received day-to-day

instructions from the Sheriff; (2) although the Work Contract tasked them not to

leave the inmate unsupervised, that supervisory responsibility fell on the City and

its staff; (3) the Sheriff had no authority to direct the inmate’s labor; (4) the Sheriff

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had no authority to fire or discipline the City’s supervisory staff; (5) the Sheriff did

not control how the supervisory staff performed their supervisory duties; and (6) the

City was the sole beneficiary of Armstead’s labor and that of Williams and Jacobs.

Under these undisputed material facts, we find on de novo review that the trial

court did not err when it found that the Sheriff could not be held vicariously liable

for the actions of Williams and Jacobs. Skinner, 149 So.3d 342; Duplantis v.

Dillard’s Dep’t Store, 02-852 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, writ denied,

03-1620 (La. 10/10/03), 855 So.2d 350. See also, Robinson v. Allstate Ins. Co.,

53,940, p. 11 (La.App. 2 Cir. 5/26/21), 322 So.3d 381, 387, writ denied, 21-906 (La.

10/19/21), 326 So.3d 264 (stating that “[n]o such actions of gross negligence could

be asserted [against the Sheriff] in the petition because those defendants were not

present when the accident happened, and they had no duty to observe an employee

of the Village or the inmate’s work that he was performing for it.”).

CONCLUSION

The burden of proof in summary judgment proceedings is set forth in La.Code

Civ.P. art. 966(D)(1) that states:

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 judgment, the mover’s burden on

the motion does not require him to negate all essential elements of the

adverse part’'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. The burden is on the

adverse party to produce factual support sufficient to establish the

existence of a genuine issue of material fact or that the mover is not

entitled to judgment as a matter of law.

If the non-moving party fails to do so, as in this case, there is no genuine issue of

material fact, and summary judgment should be granted. La.Code Civ.P. arts. 966

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and 967; Williams v. Shoney’s, Inc., 99-0607 (La.App. 1 Cir. 3/31/00), 764 So.2d

1021.

Pursuant to our de novo review of the pleadings and depositions, together with

the affidavits submitted in support of the motion for summary judgment, we find

that the Defendants satisfied their initial burden of showing the absence of support

for one or more essential elements to the Plaintiffs’ claim, and the Plaintiffs have

failed to offer sufficient factual support to indicate that they would be able to meet

their evidentiary burden of proof at trial. Accordingly, we find no error in the trial

court’s grant of motion for summary judgment in favor of the Defendants and further

find it unnecessary to reach the Plaintiffs’ additional argument that Armstead was in

the process of escaping when he murdered Ms. Kite.

DISPOSITION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

of this appeal are assessed to the Plaintiffs.

AFFIRMED.

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