APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT NUMBER
103, 716, DIVISION C, PARISH OF ASCENSION STATE OF LOUISIANA
HONORABLE TESS PERCY STROMBERG, JUDGE
Maughan, Jr. Joshua D. Roy Namisha D. Patel Baton Rouge,
Louisiana Counsel for Plaintiff-Appellant Kira Thigpen
D. H. Olinde, Jr. Scott E. Mercer Baton Rouge, Louisiana
Counsel for Defendants-Appellees Christopher Lacombe,
Ascension Parish Fire District No. 3, and American
Alternative Insurance Corp.
BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Kira Thigpen, appeals the trial court's grant of summary
judgment in favor of defendants-appellees, Cpt. Christopher
Lacombe, Ascension Parish Fire Protection District No. 3
(District No. 3), and their liability insurer, American
Alternative Insurance Corporation, dismissing her claims for
damages as a result of a motor vehicle accident.
Additionally, defendants filed a writ application,
challenging an evidentiary ruling made by the trial court.
For the reasons that follow, we deny the writ and we affirm
FACTUAL AND PROCEDURAL BACKGROUND
19, 2011, at around 9:00 p.m., Cpt. Lacombe responded to an
emergency call dispatched to District No. 3 concerning a
motor vehicle accident. Driving a 2001 E-One Pumper fire
truck, Engine #30, with three other fire fighters aboard,
Cpt. Lacombe proceeded from the station house on Highway 73
in Prairieville onto westbound Interstate Highway 10 (I-10)
with the emergency lights and sirens activated. As he
approached the parish line between Ascension and East Baton
Rouge parishes where the accident was reported to have
occurred, he saw a Louisiana State Trooper's vehicle with
its blue lights flashing on the eastbound I-10 roadway,
across the median on the south side shoulder. In an effort to
ensure administration of emergency responder services as
quickly as possible, Cpt. Lacombe stopped Engine #30 in the
left lane of I-10 to allow the other fire fighters to exit
the vehicle and render aid. While the fire fighters were in
the process of exiting Engine #30, Thigpen's 2004 Honda
Civic, which was traveling approximately 60 mph, ran into the
back of the fire truck. Although a passenger in her car was
able to exit, Thigpen was not. After she was extricated from
her car, Thigpen was taken to an area hospital where she
received medical treatment.
subsequently filed this lawsuit, naming as defendants, Cpt.
Lacombe as the driver of Engine #30, his employer, District
No. 3, whom she averred was vicariously liable for
Lacombe's actions, and their liability
insurer.Defendants filed an answer and discovery
was conducted. Thigpen subsequently filed a motion for
partial summary judgment, asserting that defendants were not
entitled to the immunity afforded the driver of an emergency
vehicle under Louisiana's Highway Regulatory
Defendants responded with a cross motion for summary
judgment, contending they were entitled to immunity and,
further, to dismissal from the lawsuit because Thigpen was
unable to prove that Lacombe breached the applicable standard
of care. When, in opposition to defendants' motion for
summary judgment, Thigpen relied on the opinion of an
accident reconstruction expert, Michael Gillen, defendants
filed a motion to exclude his testimony.
trial court conducted a hearing on the motions. After
argument and the presentation of the parties' supporting
documents, the trial court denied Thigpen's motion for
partial summary judgment and granted summary judgment in
favor of defendants on the issue of the applicable standard
of care. The trial court also denied the motion to exclude
Gillen's report and testimony but concluded that
defendants were entitled to a dismissal of all of
Thigpen's claims against them. Thigpen appealed, and
defendants filed a writ application challenging the trial
court's admission of Gillen's report and testimony,
which was referred to the merits of this appeal. See
Thigpen v. Lacombe, 2016-1611 (La.App. 1st Cir.
3/16/17) (unpublished writ action).
de novo review of the trial court's ruling on
opposing motions for summary judgment, we use the same
criteria that govern the trial court's consideration of
whether summary judgment is appropriate. See
Bank of New York Mellon v. Smith, 2015-0530 (La.
10/14/15), 180 So.3d 1238, 1243; Smith v. Our Lady of the
Lake Hosp., Inc., 93-2512 (La. 7/05/94), 639 So.2d 730,
750. Thus, we must determine whether a genuine issue of
material fact exists and whether the movant is entitled to
judgment as a matter of law. See La. C.C.P. art. 966A(3); see
Supreme Services & Specialty Co., Inc. v. Sonny
Greer, Inc., 2006-1827 (La. 5/22/07), 958 So.2d 634,
638. The only documents that may be filed in support of or in
opposition to the motion are pleadings, memoranda,
affidavits, depositions, answers to interrogatories,
certified medical records, written stipulations, and
admissions. La. C.C.P. art. 966A(4).
burden of proof rests with the movers. Nevertheless, if the
movers will not bear the burden of proof at trial on the
issue that is before the court, the movers' burden on the
motion does not require that they negate all essential
elements of the adverse party's claim, but rather to
point out the absence of factual support for one or more
elements essential to the adverse party's claim. The
burden is then on the adverse party to produce factual
support sufficient to establish the existence of a genuine
issue of material fact or that the movers are not entitled to
judgment as a matter of law. See La. C.C.P. art.
summary judgment is granted in the context of statutory
interpretation, there are no material issues of fact in
dispute and the sole issue before us is a question of law as
to the correct interpretation of the statute at issue.
GameStop, Inc. v. St. Mary Parish Sales and Use Tax
Dep't, 2014-0878 (La.App. 1st Cir. 3/19/15, 6), 166
So.3d 1090, 1094, writ denied, 2015-0783 (La.
6/1/15), 171 So.3d 929. But where the issue is whether a
particular fact in dispute is material, the substantive law
determines materiality. See Smith v.
Berteau, 98-1438 (La.App. 1st Cir. 6/25/99), 739 So.2d
motion for partial summary judgment, Thigpen suggested that
because defendants were not entitled to assert the privileges
and immunity afforded an emergency vehicle driver under
Louisiana's Highway Regulatory Act, her applicable burden
of proof at trial was ordinary negligence. In their summary
judgment motion, defendants asserted that, under
Louisiana's Highway Regulatory Act, Thigpen was required
to prove Cpt. Lacombe acted with reckless disregard for the
safety of others. They further maintained that in light of
the evidence produced at the hearing on the motion for
summary judgment, Thigpen's claims against them should be
rendering judgment, the trial court agreed with defendants,
concluding that at trial Thigpen had to prove a reckless
disregard for the safety of others by Cpt.
Lacombe. Additionally, in determining that
defendants were entitled to a dismissal of the claims against
them, the trial court concluded that Thigpen had failed to
produce factual support sufficient to establish that Cpt.
Lacombe acted with reckless disregard.
first called upon to interpret the provisions of La. R.S.
32:24, the statute setting forth the privileges and
immunities afforded to drivers of emergency vehicles under
Louisiana's Highway Regulatory Act. The starting point in
the interpretation of any statute is the language of the
statute itself. Fontenot v. Reddell Vidrine Water
Dist, 2002-0439 (La. 1/14/03), 836 So.2d 14, 20. When a
law is clear and unambiguous and its application does not
lead to absurd consequences, the law shall be applied as
written, and no further interpretation may be made in search
of legislative intent. Fontenot, 836 So.2d at 20. A
statute shall be construed to give meaning to the plain
language of the statute, and courts may not extend statutes
to situations that the legislature never intended to be
covered. Chamberlain ex rel. Wilmer J. v. Kennedy,
2003-0488 (La.App. 1st Cir. 12/31/03), 868 So.2d 753, 757.
When two or more interpretations may be given a law, the
interpretation which is reasonable and practical is preferred
to that which makes the law ridiculous or meaningless.
Rabalais v. Nash, 2006-0999 (La. 3/9/07), 952 So.2d
APPLICABILITY OF LA. R.S. 32:24, AFFORDING PRIVILEGES AND
IMMUNITY TO THE DRIVER OF AN EMERGENCY VEHICLE
Thigpen's motion for partial summary judgment and
defendants' cross motion for summary judgment, the
parties asserted that interpretation of La. R.S. 32:24
resulted in a ruling in their favor. Section 24 provides in
A. The driver ... of an authorized emergency vehicle, when
responding to an emergency call ... may exercise the
privileges set forth in this Section, but subject to the
conditions herein stated.
B. The driver ... of an authorized emergency vehicle may ...
[p]ark or stand, irrespective of the provisions of this
C. The exception herein granted to an authorized emergency
vehicle shall apply only when such vehicle ... is making use
of audible or visual signals ... sufficient to warn motorists
of their approach....
D. The foregoing provisions shall not relieve the driver ...
of an authorized vehicle from the duty to drive ... with due
regard for the safety of all persons, nor shall such
provisions protect the driver ... from the consequences of
his reckless disregard for the safety of others.
D sets out two standards of care for an emergency vehicle
driver depending on the circumstances of the case. If, and
only if, an emergency vehicle driver's actions fit into
subsections A, B and C of Section 24 will an emergency
vehicle driver be held liable only for actions which
constitute "reckless disregard for the safety of
others." On the other hand, if the emergency vehicle
driver's conduct does not fit subsections A, B and C of
Section 24, such driver's ...