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Thigpen v. Lacombe

Court of Appeals of Louisiana, First Circuit

August 29, 2017

KIRA THIGPEN
v.
CHRISTOPHER LACOMBE, PRAIRIEVILLE VOLUNTEER FIRE DEPARTMENT, INC., SPECIAL RISKS INSURANCE INC., ASCENSION PARISH FIRE DISTRICT, AND GLATFELTER INSURANCE GROUP

         ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT NUMBER 103, 716, DIVISION C, PARISH OF ASCENSION STATE OF LOUISIANA HONORABLE TESS PERCY STROMBERG, JUDGE

          Roy H. Maughan, Jr. Joshua D. Roy Namisha D. Patel Baton Rouge, Louisiana Counsel for Plaintiff-Appellant Kira Thigpen

          Henry 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.

          CHUTZ, J.

         Plaintiff-appellant, 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 the judgment.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On May 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.

         Thigpen 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.[1]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 Act.[2] 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.

         The 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).

         II. SUMMARY JUDGMENT

         In our 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).

         The 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. 966D(1).

         When 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 269, 272.

         In her 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 dismissed.

         In 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.[3] 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.

         III. STATUTORY INTERPRETATION

         We are 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 653, 662.

         IV. APPLICABILITY OF LA. R.S. 32:24, AFFORDING PRIVILEGES AND IMMUNITY TO THE DRIVER OF AN EMERGENCY VEHICLE

         In both 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 part:

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 Chapter. ...
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.

         Subsection 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 ...


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