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Populis v. State

Court of Appeals of Louisiana, Fifth Circuit

May 31, 2017

FREDDIE POPULIS
v.
THE STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, LESTER C. LEDET, III AND ALLSTATE INSURANCE COMPANY SANDRA BOVIE, BYRON THOMAS, MARY LOU BOUDOIN, AND MARY MITCHELL
v.
STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF HIGHWAYS PAMELA LEWIS
v.
STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF HIGHWAYS, UNKNOWN CAPTAIN AND UNKNOWN DECKHAND(S) ROBIN WILSON AND JAHMAL A. WILSON
v.
THE STATE OF LOUISIANA, THROUGH THE LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, FARA INSURANCE SERVICES, AND LESTER C. LEDET, III

         ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 65, 830 C/W 66, 201 C/W 66, 275 C/W 67, 262, DIVISION "B" HONORABLE MARY H. BECNEL AND HONORABLE E. JEFFREY PERILLOUX, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, FREDDIE POPULIS T. Daniel Pick

          COUNSEL FOR PLAINTIFF/APPELLEE, SANDRA BOVIE, BYRON THOMAS, MARY LOU BOUDOIN, AND MARY MITCHELL Gary N. Boutwell, II J. Thomas Anderson Ashley Anderson Traylor

          COUNSEL FOR DEFENDANT/APPELLANT, STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Jeffrey M. Landry William S. Culver, Jr.

          Panel composed of Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

         AFFIRMED

         MEJ

         JGG

         RAC

          MARC E. JOHNSON JUDGE.

         Defendants/Appellants, the State of Louisiana through the Department of Transportation and Development (hereinafter referred to as "DOTD") and Lester C. Ledet, III, appeal the determination of liability from the 40th Judicial District Court, Division "B, " concerning an allision between a ferryboat and a moored barge whereby Plaintiffs/Appellees, Freddie Populis, Sandra Thomas Bovie, Byron Thomas, Mary Lou Boudoin, and Mary Mitchell, were passengers of the ferryboat. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         The pertinent facts of this appeal are as follows.

         This matter arises from an allision[1] that occurred on March 20, 2013 at approximately 5:45 a.m. While departing from the west bank landing in Edgard, Louisiana, with passengers and cars on board and traveling eastbound across the Mississippi River to the landing in Reserve, Louisiana, the ferryboat M/V NEW ROADS allided with a moored barge attached to a fleet. The starboard stern of the ferry made contact with the starboard bow of the barge. The M/V NEW ROADS was owned by DOTD and operated by Captain Lester C. Ledet, III. Plaintiffs, Freddie Populis, Sandra Thomas Bovie, Byron Thomas, Mary Lou Boudoin, and Mary Mitchell, were among the passengers being transported on the ferry to the opposite bank and sustained injuries as a result of the allision.[2] At the time of the incident, it was dark, cool and windy, and the river stage was at 10.3.

         On November 25, 2013, Mr. Populis filed an action against DOTD, Captain Ledet and Allstate Insurance Company[3], alleging fault/negligence for failure to keep a proper lookout, failure to train and supervise employees, failure to properly identify the proper clearance of the M/V NEW ROADS ferry, failure to exercise reasonable vigilance, failure to maintain reasonable and proper control of the M/V NEW ROADS ferry, and any and all other acts of negligence and/or fault. In a separate action, Mrs. Bovie, Mr. Thomas, Ms. Boudoin and Ms. Mitchell filed suit on February 24, 2014, against the State of Louisiana, alleging fault/negligence for unseaworthiness due to the incompetence of the vessel's crew to safely operate the vessel on its voyage; the vessel failed to have competent crew keeping lookout and properly stationed and attentive to their duties; the vessel lacked the navigational capacity to avoid the allision; the vessel failed to have competent crew available to render aid and assistance; and other such unseaworthiness to be revealed through discovery. The petition also alleged fault for negligent failure to alter the vessel's course to navigate clear of moored barges, failure to keep crew properly stationed to keep proper lookout, and failure to return to shore after the allision and render aid and assistance to passengers. The actions were consolidated by the trial court on April 20, 2015, upon the motion of Defendants.

         Plaintiffs filed a Motion for Partial Summary Judgment on October 29, 2015, alleging they were entitled to judgment as a matter of law that Defendants were 100% liable for the damages in the litigation. The trial court denied the motion regarding liability on December 7, 2015.[4] Defendants subsequently filed their own Motion for Summary Judgment on January 15, 2016, seeking the dismissal of all of Plaintiffs' claims. In their motion, Defendants argued that the actions of Captain Ledet on the day of the allision were discretionary, and they were protected from liability pursuant to La. R.S. 9:2798.1. Defendants' motion was heard on February 26, 2016 and denied by the trial court on March 8, 2016.

         The matter proceeded to trial on August 9, 2016. At the conclusion of Plaintiffs' case-in-chief, Defendants orally moved for an involuntary dismissal of Plaintiffs' claims on the basis that Plaintiffs failed to prove fault or negligence on the part of Captain Ledet or DOTD. Defendants also orally re-urged their Motion for Summary Judgment, contending they were entitled to discretionary immunity. Both of Defendants' motions were denied, and the trial resumed with Defendants' presentation of evidence. After the evidence from both sides was presented, the trial court took the matter under advisement.

         On August 22, 2016, the trial court rendered its judgment that incorporated reasons. The trial court found that Captain Ledet was negligent and his negligence caused the allision between the ferry and the barge. The trial court awarded $23, 748.57 to Mr. Populis; $18, 525 to Mr. Thomas; $19, 363 to Mrs. Bovie; $19, 787.31 to Ms. Boudoin; and $18, 869.33 to Ms. Mitchell in damages. The trial court also ordered DOTD to pay legal interest and all court costs. Defendants filed the instant appeal from that judgment.

         ASSIGNMENTS OF ERROR

         On appeal, Defendants allege: 1) the trial court erred in denying DOTD's Motion for Summary Judgment on the issue of whether DOTD and Captain Ledet were protected from liability through operation of La. R.S. 9:2798.1; 2) the trial court abused its discretion in denying its Motion for Directed Verdict;[5] and 3) the trial court abused its discretion in apportioning liability to them.

         LAW AND ANALYSIS

         Denial of Motion for Summary Judgment

         Defendants allege the trial court erred in denying their Motion for Summary Judgment on the issue of whether they were protected from liability through discretionary immunity, pursuant to La. R.S. 9:2798.1. They state that Captain Ledet operated the M/V NEW ROADS ferryboat across the Mississippi River as a public endeavor of transportation on behalf of DOTD. Defendants argue there was uncontroverted testimony that Captain Ledet was not bound to conform to specific methods of operating the M/V NEW ROADS for public service to the general public; rather, Captain Ledet was required to use his discretion in interpreting and reacting to weather and sea conditions as he encountered them in the manner he deemed appropriate. As an employee of DOTD, Defendants contend that Captain Ledet is entitled to the immunity from liability provided in La. R.S. 9:2798.1 because he used his sole discretion at all times to navigate the ferryboat and complete his assignment.

         Plaintiffs argue the trial court correctly held that Defendants were not entitled to summary judgment on the issue of statutory immunity. Plaintiffs contend the statute at issue does not protect against legal fault or negligent conduct at the operational level but only confers immunity for policy decisions, and Captain Ledet made operational decisions that lead to acts of negligence on the morning of the allision. Plaintiffs maintain that La. R.S. 9:2798.1 was not drafted to shield Defendants from liability/negligent actions at the operational level; thus, Defendants were not entitled to summary judgment.

         In Pouncy v. Winn-Dixie La., Inc., 15-189 (La.App. 5 Cir. 10/28/15); 178 So.3d 603, 605, this Court explained the review of the denial ...


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