David Benton and Ashlie Downey v. State of Louisiana, Through Department of Children and Family Services and the Department of Transportation and Development, Ashley A.Shields and Ronnie R. Roundtree

STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT

DAVID BENTON AND ASHLIE DOWNEY NO. 2020 CW 1214

PAGE 1 OF 3

VERSUS

STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND THE DEPARTMENT OF TRANSPORTATION AND AUGUST 13, 2021 DEVELOPMENT, ASHLEY SHIELDS, AND RONNIE R. ROUNDTREE

In Re: The State of Louisiana, through the Department of

Children and Family Services and Ashley Shields, applying for supervisory writs, 21st Judicial District Court, Parish of Tangipahoa, No. 2017- 807.

BEFORE: WHIPPLE, C. J., McDONALD, THERIOT, HOLDRIDGE, AND PENZATO, JJ.

WRIT GRANTED. The trial court' s September 8, 2020 judgment denying thesummary judgment motion filed by for State of the

Louisiana through the Department of Children and Family Services and Ashley A. Shields on the issue of immunity pursuant to La. R. S. 29: 735( A)( 1) is reversed and the motion for summary judgment is granted. There is no dispute that, at the time of

the accident, the State of Louisiana was in a declared state of emergency due to flooding. Further, the evidence submitted by defendants in support of their motion for summary judgment establishes that Ashley A. Shields, an employee of the Louisiana Department of Children and Family Services (" DCFS"), was

traveling outside of her normal work hours to an alternate work

location at the direction of the DCFS to distribute Disaster Supplemental Nutritional Assistance Program (" DSNAP") cards to flood victims. This directive and the extraordinary travel

incident thereto caused her to be engaged in a homeland security and emergency preparedness and recovery activity at the time of

the accident. See Lumpkin v. Lanfair, No. 2009- 6248, 2010 WL 3825427 ( E. D. La. 2010). Jim+!

MRT AHP

Whipple, C. J., dissents and would deny the writ. While Louisiana courts have given " emergency preparedness and recovery activities" a liberal interpretation, the statute itself provides that in order for immunity to apply the employee must be engaged in that activity and the injury to a person must be as a result of such activity. The circumstances of this case are distinguishable from, for example, Koonce v. St. Paul Fire & Marine Insurance Co., 2015- 31 ( La. App. 3d Cir. 8/ 5/ 15), 172 So. 3d 1101, writ denied, 2015- 1950 ( La. 11/ 30/ 15), 184 So. 3d 36, where immunity was extended to the Calcasieu Parish Sheriff' s Office and its deputy who were evacuating prisoners by bus away from a hurricane at the time a crash occurred. In this case,

Ms. Shields was merely driving from her home in her boyfriend' s vehicle to an assigned work location, but had not begun of any

STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT 2020 CW 1214 PAGE 2 of 3

her work duties at the workplace. In my view, relators have not established that she was engaged in an emergency preparedness or recovery activity at the time of the accident.

Holdridge, J. dissents. La. Code Civ. P. art. 966( A)( 3) states that " a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law." Article 966( F) further provides that "[ a] summary judgment may be rendered only as to those issues set forth in the motion under consideration

by the court at that time." The sole issue in this motion for summary judgment is whether the mover has come forth with

sufficient evidence to show that a person who is involved in a vehicular accident over forty miles away from a disaster relief

distribution site is engaged in emergency preparedness

activities such that she is entitled to immunity pursuant to La. R. S. 29: 735 for any damages she have her may caused by negligence. The immunity defense provided by La. R. S. 29: 735 is an affirmative defense. Rogers v. State ex rel. Dep' t of Public Safety & Corr., 2007- 1060 ( La. App. 3d Cir. 1/ 30/ 08), 974 So. 2d 919, writ denied, 2008- 504 ( La. 4/ 25/ 08), 978 So. 2d 37. The burden is on the DCFS to prove through admissible and relevant

documents that the defendant, Ashley Shields, was engaged in an emergency preparedness activity when she was driving her boyfriend' s personal vehicle on her way to a disaster relief

site and that she was immunity for entitled to any of her negligent acts while driving in accordance with La. R. S. 29: 735. Robertson v. St. John the Baptist Parish, 2015- 240 ( La. 5th App. Cir. 10/ 14/ 15), 177 So. 3d 785, 789.

De novo review of the evidence presented by the DCFS in the form of documentation, affidavits, and depositions, all

demonstrate that Ms. Shields, having recently exited her subdivision in her boyfriend' s vehicle, struck a pedestrian in a lighted intersection. It further shows that she was in Tangipahoa Parish, approximately forty miles from Franklinton, Louisiana, where she was to distribute DSNAP cards to flood victims. At oral argument, it was stated that Ms. Shields did not have the DSNAP cards in her possession, but that the cards

were at the distribution relief site in Franklinton. The threshold issue here immunity. isWe do not have before us Ms. Shields' liability under a duty/ risk analysis. Whether Ms. Shields was in in negligent any way failing to see the plaintiff, who was wearing dark clothing and standing in the middle of a highway, talking, with his back toward the traffic

in the darkness of the early morning is not before us. There is also a substantial legal issue as to whether Ms. Shields owed

any duty to the defendant under the circumstances of this case. However, these issues have not been raised in this motion for summary judgment.

The sole issue at this time is whether Ms. Shields was

engaged in emergency preparedness activities at the time of the accident and is entitled to immunity under La. R. S. 29: 735. Louisiana courts have found the following activities qualify as emergency preparedness activities" under La. R. S. 29: 735:

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT 2020 CW 1214 PAGE 3 of 3

engaging in sandbagging activities and getting into an accident

in a state owned vehicle,' removing debris, 2 inspecting culverts and drainage structures, 3 making arrests and transporting arrestees or prisoners, 4 removing an earthen berm obstructing drainage, 5 responding to a house fire, 6 failing to provide proper warnings in advance of a disaster,' driving a military truck to haul materials,$ a spare tire corning off a national guard vehicle and striking another vehicle while on a mission to pick up automotive parts for hurricane relief operations. 9 In this case, I believe genuine issues of material fact remain concerning whether a state employee driving a friend' s car is entitled to

immunity for an accident which occurs over forty miles from the disaster relief distribution area. A genuine issue of material fact is one as to which reasonable minds could disagree. Periso v. Vu, 2013- 1601 ( La. App. 1st Cir. 7/ 17/ 14), 2014 WL 3535342; Price v. Chain Electric Company, 2018- 162 ( La. App. 5th Cir. 11/ 28/ 18), 259 So. 3d 1249. Clearly, reasonable people could

disagree as to whether the travel in this case by the defendant is an integral part of an emerQencv preparedness activitv.

since there is a question in Louisiai a law as to the scope of

immunity for state employees under ja. R. S. 29: 735, summary judgment is not the proper procedur, 1 mechanism to determine this issue. Without a trial wherein G Ll facts and circumstances can be placed into evidence, it woul be legal error to grant

immunity from liability to all state mployees driving in their personal vehicles to disaster loca ions for any of their negligent actions no matter the d stance from the actual

disaster assistance activity. 10 The state has failed in its burden of proving that there are no genuine issues as to any material facts and that Ms. Shields is entitled to immunity as a matter of law. Accordingly, I dissent and would deny the writ.

COURT OF APPEAL, FIRST CIRCUIT

54. PuT,Y FOR CLERK THE OF COURT COURT

1 McQuirter v. State through Louisiana Dep' t of Pub. Safety & Corr. Elayn Hunt Corr. Ctr., 2020- 1192 ( La. 1/ 12/ 21), 308 So. 3d 265. 2 Castillo v. Lafayette City -Pariah Consolidated Government, 2004- 1569 ( La. App. 3d Cir. 3/ 2/ 05), 896 Sc. 2d 1261. 3 Fryoux v. Tensas Basin Levee Dist., 2012- 991 ( La. App. 3d Cir. 2/ 6/ 13), 2013 WL 440129.

Noyel v. City of St. Gabriel, 2015- 1890 ( La. App. 1st Cir. 9/ 1/ 16), 202 So. 3d 1139. s Neil v. Lafourche Parish Council, 2013- 0587 ( La. App. 1st Cir. 2/ 7/ 14), 2014 WL 505479. 6 Haab v. E. Hank Consol. Special Serv. Fire Prot. Dist. of Jefferson Parish, 2013- 954 La. App. 5th Cir. 5/ 28/ 14), 139 So. 3d 1174. Robertson v. St. John the Baptist Parish, 2015- 240 ( La. 5th Cir. 10/ 14/ 15), 1' 77 App. So. 3d 785. e Lemoine v. United States, No. CIV. A. 2007- 8478, 2009 WL 2496561 ( E. D. La. 8/ 13/ 09). Martin v. United States, No. CIV A. 2007- 663- FJP- CN, 2008 WL 11417740 ( M. D. La.

9/ 24/ 06). 10 Under such a broad interpretation, a state employee leaving New Orleans to help distribute aid in Lake Charles could stop for the night in Baton Rouge and

Lafayette, and maybe even Opelousas, and have immunity from any negligent acts which he may commit on his journey to provide disaster relief.