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
COUNSEL FOR PLAINTIFF/APPELLEE, FREDDIE POPULIS T. Daniel
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.
composed of Jude G. Gravois, Marc E. Johnson, and Robert A.
E. JOHNSON JUDGE.
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
AND PROCEDURAL HISTORY
pertinent facts of this appeal are as follows.
matter arises from an allision 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. At the time of the incident,
it was dark, cool and windy, and the river stage was at 10.3.
November 25, 2013, Mr. Populis filed an action against DOTD,
Captain Ledet and Allstate Insurance Company, 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.
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. 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.
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.
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.
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; and 3) the trial court abused its
discretion in apportioning liability to them.
of Motion for Summary Judgment
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.
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
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 ...