RANDY J. TOUPS AND DEBORAH H. TOUPS
JAMES G. DANTIN, ADELE B. DANTIN, AND ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY Consolidated With THE HARTFORD
JAMES DANTIN, ALLSTATE INSURANCE COMPANY, AND ABC INSURANCE COMPANY
Appeal from the Seventeenth Judicial District Court. In and
for the Parish of Lafourche, State of Louisiana. Civil
Numbers 119331 and 119361. Honorable Jerome J. Barbera, III,
M. Hawkins, Baton Rouge, Louisiana, Counsel for
Plaintiffs/Appellants, Randy J. Toups and Deborah H. Toups.
L. Donovan, Jr., P.M. Donovan, Metairie, Louisiana, Counsel
for Defendants/Appellees, James G. Dantin and Allstate
Property and Casualty Insurance Company.
Shannon Hardy, John W. Penny, Jr., Lafayette, Louisiana,
Counsel for Defendant/Appellee, Adele Bourg.
WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. Whipple,
C.J., dissents for reasons assigned.
1754 La.App. 1 Cir. 2] McCLENDON, J.
case arises out of a tragic automobile accident that resulted
in the death of the plaintiffs' son, Dr. Kristofor
Toups. The plaintiffs, Randy J. Toups and
Deborah H. Toups, appeal a grant of summary judgment in favor
of Adele B. Dantin, the wife of James G.
Dantin, the driver of the
automobile that collided with the pickup truck driven by Dr.
Toups. For the reasons that follow, we affirm.
AND PROCEDURAL HISTORY
morning of January 20, 2011, while driving southbound on
Louisiana Highway 1, in Lafourche Parish, James Dantin was
operating a 2009 Nissan Maxima owned by his wife, Adele
Dantin. After passing a vehicle in a non-passing zone, at a
high rate of speed, Mr. Dantin rear-ended the 2007 Chevrolet
Silverado pickup truck being operated by Dr. Toups. As a
result of the impact, Dr. Toups' truck was forced into
the opposite lane of the two-lane highway, where it collided
head-on with a Peterbilt garbage truck, fatally injuring Dr.
Toups. Toxicology tests revealed that Mr. Dantin had alcohol,
alprazolam (a generic form of Xanax), and benzoylecgonine (a
metabolite of cocaine) in his bloodstream.
January 17, 2012, the Toupses filed a petition for damages
for the wrongful death of their son against Mr. Dantin, Ms.
Dantin, and their insurers. They alleged that Mr. Dantin had
a history of drug and alcohol related charges for more than
thirty years, including in excess of fifteen arrests for
driving under the influence of drugs and alcohol. The Toupses
further asserted that since his release from jail in August
2009, in connection with a previous driving while intoxicated
conviction, Mr. Dantin was prohibited from operating a
vehicle that was not equipped with an ignition interlock
device and that the Maxima that Mr. Dantin was operating at
the time of the accident did not have an ignition interlock
device. [2014 1754 La.App. 1 Cir. 3] In addition to asserting
a cause of action against Mr. Dantin, the Toupses asserted a
cause of action against Ms. Dantin. The Toupses alleged that
Ms. Dantin knew that Mr. Dantin was prohibited from driving a
vehicle without an ignition interlock device and that Ms.
Dantin knew or should have known that Mr. Dantin on occasion
operated one or more of their vehicles that was not equipped
with an ignition interlock device. They contended that Ms.
Dantin authorized Mr. Dantin to use the vehicles in which she
had an ownership interest and which were not equipped with an
ignition interlock device. The Toupses further asserted that
Ms. Dantin was negligent for her breach of a legally imposed
duty of reasonable care; negligent entrustment; failure to
secure property within her custody; failure to install
property safety equipment in vehicles available for the use
and operation by Mr. Dantin; reckless disregard for the
safety of the public; and other negligent acts and omissions.
30, 2014, Ms. Dantin filed a motion for summary judgment, in
which she asserted that, as a matter of law, she was not
legally responsible for the January 20, 2011 accident.
Specifically, she contended that there was no evidence
indicating that she gave Mr. Dantin permission to drive the
Maxima at the time of the accident. Following a hearing on
August 15, 2014, the trial court granted Ms. Dantin's
motion for summary judgment, dismissing the Toupses'
claims against her with prejudice. A judgment was signed on
August 28, 2014, and the Toupses appealed.
motion for summary judgment is a procedural device used to
avoid a full-scale trial when there is no genuine factual
dispute. Sanders v. Ashland Oil, Inc., 96-1751
(La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied,
97-1911 (La. 10/31/97), 703 So.2d 29. Summary judgment is
properly granted if the pleadings, depositions, answers to
interrogatories, and admissions, together with affidavits, if
any, admitted for purposes of the motion for summary
judgment, show that there is no genuine issue of material
fact, and that mover is entitled to judgment as a matter of
law. LSA-C.C.P. art. 966B(2).
1754 La.App. 1 Cir. 4] The burden of proof to show that no
material factual issue exists is on the mover. However, if
the party moving for summary judgment will not bear the
burden of proof at trial, the mover is not required to negate
all essential elements of the adverse party's claim.
Rather, the mover must point out to the trial court that
there is an absence of factual support for one or more
elements essential to the adverse party's claim.
Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial, there is no
genuine issue of material fact and the mover is entitled to
judgment as a matter of law. LSA-C.C.P. art. 966C(2).
appellate court's review of a summary judgment is a
de novo review based on the evidence presented to
the trial court, using the same criteria used by the trial
court in deciding whether a summary judgment should be
granted. Buck's Run Enterprises, Inc. v. Mapp Const.,
Inc., 99-3054 (La.App. 1 Cir. 2/16/01), 808 So.2d 428,
431. Because it is the applicable substantive law that
determines materiality, whether a particular fact in dispute
is material for summary judgment purposes can be seen only in