August 3, 2015
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
light of the substantive law applicable to the case.
Guardia v. Lakeview Regional Medical Center, 08-1369
(La.App. 1 Cir. 5/8/09), 13 So.3d 625, 628.
Louisiana courts have adopted a duty-risk analysis in
determining whether to impose liability under the general
negligence principles of LSA-C.C. art. 2315. For liability to
attach under a duty-risk analysis, a plaintiff must prove
five separate elements: (1) the defendant had a duty to
conform his or her conduct to a specific standard of care;
(2) the defendant's conduct failed to conform to the
appropriate standard of care; (3) the defendant's
substandard conduct was a cause-in-fact of the
plaintiff's injuries; (4) the defendant's substandard
conduct was a legal cause of the plaintiff's injuries;
and (5) the plaintiff was damaged. Brewer v. J.B. Hunt
Transport, Inc., 09-1408 (La. 3/16/10), 35 So.3d 230,
240. Whether a duty is owed is a question of law; whether a
defendant has breached a duty owed is a question of fact.
1754 La.App. 1 Cir. 5] The threshold question in a duty-risk
analysis is whether the defendant owed a duty to the
plaintiff. Ponceti v. First Lake Properties, Inc.,
11-2711 (La. 7/2/12), 93 So.3d 1251, 1252. In deciding
whether to impose a duty in a particular case, the court must
make a policy decision in light of the unique facts and
circumstances presented. The inquiry is whether the plaintiff
has any law (statutory, jurisprudential, or arising from
general principles of fault) to support the claim that the
defendant owed him a duty. Lemann v. Essen Lane
Daiquiris, Inc., 05-1095 (La. 3/10/06), 923 So.2d 627,
633. Thus, the duty-risk analysis requires the court to take
into account the conduct of each party as well as the
particular circumstances of the case. Meany v.
Meany, 94-0251 (La. 7/5/94), 639 So.2d 229, 233. In
determining whether to impose a duty in a particular
situation, the court may consider various moral, social, and
including whether the imposition of a duty would result in an
unmanageable flow of litigation; the ease of association
between the plaintiff's harm and the defendant's
conduct; the economic impact on society as well as the
economic impact on similarly situated parties; the nature of
the defendant's activity; moral considerations,
particularly victim fault; and precedent as well as the
direction in which society and its institutions are evolving.
Id.; see also Posecai v. Wal-Mart Stores,
Inc., 99-1222 (La. 11/30/99), 752 So.2d 762, 766.
Generally, there is an almost universal legal duty on the
part of a defendant in a negligence case to conform to the
standard of conduct of a reasonable person in like
circumstances. Joseph v. Dickerson, 99-1046 (La.
1/19/00), 754 So.2d 912, 916.
Ordinarily, an owner of a vehicle is not personally liable
for the damages that occur while another is operating the
vehicle. Stokes v. Stewart, 99-0878 (La.App. 1 Cir.
12/22/00), 774 So.2d 1215, 1218. Exceptions to this occur
only when the driver is on a mission for the owner of the
vehicle, when the driver is an agent or employee of the
owner, or when the owner is herself negligent in entrusting
the vehicle to an incompetent driver.
Id. Under the negligent entrustment
theory, the lender of a vehicle is not responsible for the
negligence [2014 1754 La.App. 1 Cir. 6] of the borrower,
unless he had or should have had knowledge that the borrower
was physically or mentally incompetent to drive.
Id., at 1219. However, one who
knowingly entrusts an automobile to an intoxicated, or
otherwise incompetent, driver is responsible for the harm
resulting from the incompetent operation of the vehicle.
Id. Stated another way, one who
loans a car to another when the lender knows or has reason to
know that the borrower is likely to use the car in a manner
involving an unreasonable risk of physical harm, because of
the borrower's youth, inexperience, intoxication,
incompetence, or otherwise, can be held liable to a third
party for damage caused by the borrower. Dickerson,
754 So.2d at 916; Thistlethwaite v. Gonzalez, 12-130
(La.App. 5 Cir. 12/18/12), 106 So.3d 238, 257.
support of her motion for summary judgment, Ms. Dantin
submitted excerpts from the deposition of Mr. Dantin, as well
as excerpts from her own deposition; a copy of the petition
and amended petition for damages; her affidavit; and the
affidavit of the state trooper who investigated the accident.
In opposition to the summary judgment motion, the Toupses
introduced a copy of the Dantins' renewal policy package
for their automobile insurance policy with Allstate Property
and Casualty Insurance Company for the period from August 28,
2010 to February 28, 2011; a copy of a bill of information
and speeding ticket regarding an incident on November 26,
2010, showing that Mr. Dantin was operating the Maxima;
excerpts from the deposition of Ms. Dantin; and excerpts from
the deposition of Mr. Dantin. At the hearing, the Toupses
introduced into evidence both depositions in their entirety,
record shows that Mr. Dantin and Mrs. Dantin were married in
1979. Mr. Dantin had a long history of driving while
intoxicated, and prior to this accident, he had six previous
convictions for driving while intoxicated. These
convictions [2014 1754 La.App. 1 Cir. 7] all
occurred during the Dantins' marriage, and Ms. Dantin was
aware of the convictions and sentences. In her deposition,
Ms. Dantin acknowledged that she knew that Mr. Dantin had a
problem with alcohol and drugs and stated that it was a
difficult issue for him. She also stated that she knew he
drank " occasionally." It is also undisputed that
after his release from prison in August 2009, Ms. Dantin knew
that as a condition of his probation, Mr. Dantin was
prohibited from operating a motor vehicle unless it was
equipped with a functioning ignition interlock device. See
LSA-R.S. 32:378.2, 32:667, and 14:334.
Dantin testified that when Mr. Dantin was released from
prison in 2009, the only automobile the Dantins owned was a
1998 Chevrolet pickup truck, and the interlock device was
installed thereon. She stated that the truck was purchased
from her mother-in-law around 2004 and that she was the
primary driver of the truck prior to the installation of the
ignition interlock device. Ms. Dantin further testified that
she subsequently purchased the Maxima to use as her personal
vehicle to get to and from her work as a nurse, as she had
difficulty using the ignition interlock device. When Ms.
Dantin was questioned about the Maxima, the following
discussion took place:
Q. The Maxima, was that a vehicle that you both drove?
A. That was me, and I am the one that picked out the Maxima.
My husband, he really didn't have any involvement with
that. I picked it out. My son came with me. He had some
experience with Maximas, so he came with me. James was
offshore. I picked out the Maxima.
Q. Did he ever drive the Maxima?
A. No. That was my car for work.
further stated that she only had one key for the Maxima that
she kept in her purse when she was not operating the car.
When specifically asked if she ever gave Mr. Dantin
permission to drive the Maxima, Ms. Dantin replied, "
[n]o" and also stated that she had no knowledge that he
ever used the Maxima. Conversely, [2014 1754 La.App. 1 Cir.
8] Mr. Dantin stated that he drove the Maxima " a couple
of times" but gave no testimony that his wife had any
knowledge of said use, and the record contains no evidence
whatsoever that Ms. Dantin had any previous knowledge of Mr.
Dantin's use of the vehicle.
Mr. Dantin testified that in January 2010, after his release
from prison and while on probation, he purchased a new
Corvette titled in his name alone and paid cash. Ms. Dantin
testified that she knew of the purchase beforehand, but
stated that Mr. Dantin was the one who picked it out. She
further testified that the Corvette was " always a dream
car" of hers. Ms. Dantin stated that on the day of the
accident, the Corvette was in the body shop for repairs due
to the fact that she
had " clipped the side of a curb" and damaged the
side of the car. Mr. Dantin testified, however, that on the
day of the accident, the Corvette was blocked by the Maxima
in the driveway, so, he took the Maxima.
regard to the accident, Ms. Dantin testified that on the
evening of January 19, 2011, when she got home from work, she
noticed nothing unusual about Mr. Dantin's behavior. She
stated that she took a shower, ate supper, and watched a
little television. Mr. Dantin went into a detached room at
the back of the house that was part of the garage. Ms. Dantin
went to bed at her usual time, approximately 9:00 p.m. When
she got up the next morning at 5:00 a.m. to get ready for
work, she noticed that her car, the Maxima, was not in the
driveway. Ms. Dantin stated that she went out to the back
room to see if Mr. Dantin was there, but he was not, and she
assumed he had left in the car. She indicated that she was
worried because her car would not be back in time for her to
go to work. She testified that she had to go to work and did
not like being late and had to call her son for a ride to
1754 La.App. 1 Cir. 9] Ms. Dantin avers that there is no
genuine issue of material fact regarding whether she
negligently entrusted the Maxima to Mr. Dantin on the day of
the accident and that the record establishes she did not. The
Toupses contend, however, that the essence of this case
involves Ms. Dantin's motive, intent and knowledge of Mr.
Dantin's use of other vehicles owned by the Dantins. They
assert that genuine issues of material fact exist concerning
whether Ms. Dantin knew that Mr. Dantin used vehicles owned
by the Dantins to circumvent the ignition interlock device
and whether she was complicit in a scheme to help him do so
by purchasing a vehicle that would allow him to drive without
complying with his probationary conditions requiring the
Toupses refer to LSA-R.S 14:334(C), which provides:
No person shall intentionally attempt to tamper with, defeat,
or circumvent the operation of an ignition interlock device.
LSA-R.S. 32:378.2(E) provides:
No person shall tamper with or circumvent the operation of an
ignition interlock device.
trial court found that the Toupses failed to present
sufficient evidence to establish that they would be able to
satisfy their evidentiary burden of proof at trial regarding
their negligent entrustment claim. Upon our de novo
review of the entire record, we agree that the Toupses failed
to produce factual support sufficient to establish that Ms.
Dantin entrusted the Maxima to her husband or that she had
any knowledge of his impairment on the day of the accident.
Accordingly, their claim of negligent entrustment must fail.
The record simply does not establish any genuine issue of
material fact as to this theory of recovery as it pertains to
we are unable to find that Ms. Dantin owed a legal duty to
police or supervise the activities of Mr. Dantin or to
install an ignition interlock device on the vehicles. This
court has been reluctant to impose a duty on any third party,
whether spouse or otherwise, where the negligent acts of an
intoxicated individual cause injury to another. As we stated
in Miller v. Tauzin, 14-1701 (La.App. 1 Cir.
6/5/15), 174 So.3d 1175 (unpublished opinion), citing
West v. Hilton Hotels Corp., 97-2842 [2014 1754
La.App. 1 Cir. 10] (La.App. 4 Cir. 5/13/98), 714 So.2d 179,
183, " there is no legal basis or authority in Louisiana
which imposes a duty on a spouse to prevent the
intoxication of the other spouse or even to warn third
persons of the spouse's intoxicated condition."
See also Doyle v. Murphy, 13-1730 (La.App. 1 Cir.
5/2/14) (unpublished opinion) (The trial court did not err in
granting motion for summary judgment and sustaining objection
of no cause of action based on its conclusion that the mother
did not owe a duty to report to law enforcement that her son
was driving under the influence of alcohol, even despite
legitimate concerns that an accident might occur.); Butz
v. Lynch, 97-2166 (La.App. 1 Cir. 4/8/98), 710 So.2d
1171, 1175, writ denied, 98-1247 (La. 6/19/98), 721 So.2d 473
(The trial court did not err in granting summary judgment and
dismissing claims against automobile guest passenger where
plaintiffs alleged that the guest passenger's
unreasonable conduct in participating in the inhalation of a
dangerous propellant with the driver while driving rendered
the guest passenger liable for automobile accident with
plaintiffs.); and Danos v. St. Pierre, 383 So.2d
1019, 1022 (La.App. 1 Cir. 1980), affirmed in part, 402 So.2d
633 (La. 1981) (Mere knowledge or awareness of the
intoxicated condition of the driver did not impose a duty
upon a guest passenger to protect against the risk that the
intoxicated driver may injure a third party in an automobile
our inquiry does not end there. In their petition, the
Toupses also allege that Ms. Dantin breached her legally
imposed duty of reasonable care and that she had a reckless
disregard for the safety of the public. In addition to Ms.
Dantin's purchase of the Maxima, she knew beforehand of
Mr. Dantin's purchase of the Corvette, even though she
claimed the Corvette was purchased for her. The Corvette was
in Mr. Dantin's name, and he was an insured driver under
their automobile policy. Given the particular facts of this
case, Ms. Dantin clearly may have had a duty not to actively
participate in procuring a vehicle for Mr. Dantin's use
for the purpose of circumventing the ignition interlock
system. Nevertheless, even if there exists a material issue
of fact as to whether Ms. Dantin participated in a scheme to
obtain the Corvette for the purpose of Mr. Dantin [2014 1754
La.App. 1 Cir. 11] avoiding the ignition interlock device,
the tragic accident in this matter occurred while Mr. Dantin
was operating the Maxima, not the Corvette. The record is
simply insufficient to establish that Ms. Dantin either
procured or provided the Maxima for Mr. Dantin's use.
despite the unsettling facts of this case, we are constrained
to find that the Toupses failed to present sufficient
evidence to satisfy their evidentiary burden at trial, and
Ms. Dantin is entitled to summary judgment.
above and foregoing reasons, we affirm the trial court's
August 28, 2014 judgment, granting summary judgment in favor
of Ms. Dantin and dismissing the Toupses' claims against
her with prejudice. All costs associated with this appeal are
assessed against Randy J. Toups and Deborah H. Toups.
C. J., dissenting.
recognized by the majority, although the owner of a vehicle
ordinarily is not personally liable for the damages that
occur while another is operating the vehicle, there are
exceptions to this, such as when the driver is on a mission
for the owner, when the driver is an agent or employee of the
owner, or when the owner is herself negligent in entrusting
the vehicle to an incompetent driver. Stokes v.
99-0878 (La.App. 1st Cir. 12/22/00), 774 So.2d 1215, 1218.
One who loans a car to another when the lender knows or has
reason to know that the borrower is likely to use the car in
a manner involving an unreasonable risk of physical harm,
because of the borrower's intoxication, incompetence, or
otherwise, can be held liable to a third party for damage
caused by the borrower. Joseph v. Dickerson, 99-1046
(La. 1/19/00), 754 So.2d 912, 916; Thistlethwaite v.
Gonzalez, 12-130 (La.App. 5th Cir. 12/18/12), 106 So.3d
the evidence presented by the Toupses in opposition to Ms.
Dantin's motion for summary judgment, I must conclude
that material issues of fact remain that make this case
inappropriate for summary judgment. As noted by the majority,
the record evidence establishes that Mr. Dantin had a long
history of driving while intoxicated, involving multiple DWI
arrests and six prior DWI convictions, with all of the DWI
convictions occurring during the Dantins' marriage and
with Ms. Dantin aware of the convictions and resulting
sentences. Moreover, although Ms. Dantin claimed in her
deposition that he did not ever drive the Maxima, as it was
" [her] car for work," in his deposition testimony,
Mr. Dantin acknowledged that he, in fact, had previously
driven the Maxima and had done so on more than one occasion.
Indeed, Mr. Dantin was arrested and ticketed approximately
two months before the tragic accident at issue in this case
for driving Ms. Dantin's Maxima at a rate of speed of 94
miles per hour in a 55 mile-per-hour speed zone.
evidence of record casts doubt on Ms. Dantin's testimony,
raising factual issues as to her knowledge of Mr.
Dantin's use of the vehicle, the scope of her
participation in a scheme involving his use of the vehicle to
avoid the interlock device, and her entrustment of the use of
the Maxima to Mr. Dantin in the circumstances giving rise to
this accident. These factual issues cannot be resolved
without making a credibility determination as to her
knowledge, i.e., only by accepting as true Ms. Dantin's
testimony in its entirety, even despite the other evidence
casting doubt on that testimony. Such credibility
determinations are not appropriate for summary judgment. See
Janney v. Pearce, 2009-2103 (La.App. 1st Cir.
5/7/10), 40 So.3d 285, 293, writ denied, 2010-1356 (La.
9/24/10), 45 So.3d 1078. These material issues should be
addressed at a trial.
these reasons, I respectfully dissent.
The record indicates that Dr. Toups was a
veterinarian working for Lafourche Animal Hospital.
The Dantins apparently divorced sometime
after the filing of this lawsuit, and Ms. Dantin now goes by
Adele Bourg. Because the lawsuit was filed against Adele B.
Dantin, we will continue to refer to her by that
Mr. Dantin was subsequently charged with
" vehicular homicide & operating a vehicle while
intoxicated 4th." He pled guilty to vehicular homicide
and was sentenced to thirty years imprisonment.
The dates of the previous arrests and
convictions for operating a vehicle while intoxicated were:
arrested on September 30, 1992, and convicted on January 21,
1993; arrested on March 11, 1996, and convicted on September
25, 1996; arrested on December 4, 1996, and convicted on
April 5, 2001; arrested on September 28, 1997, and convicted
on April 11, 2001; arrested on June 23, 2000, and convicted
on April 11, 2001; and arrested on June 17, 2004, and
convicted on September 8, 2004. Mr. Dantin's arrest
history also includes a number of other violations.
Although the record shows that on November
26, 2010, Mr. Dantin was arrested for traveling 94 mph in a
55 mph speed zone while driving the Maxima, Ms. Dantin denied
that she had any knowledge of Mr. Dantin's use of her
vehicle. When presented with a copy of the ticket at her
deposition, Ms. Dantin stated, " I am
The Dantins also owned a Harley Davidson
motorcycle that was purchased new in 2004. No ignition
interlock device was installed on the motorcycle after Mr.
Dantin's release from prison. Mr. and Ms. Dantin gave
conflicting testimony as to Mr. Dantin's use of the
motorcycle after his release. Ms. Dantin said he did not
drive it, but Mr. Dantin testified that he may have driven it
" a couple of times" after his release.