93 0657 La.App. 1 Cir. 3/11/94, Penton v. Clarkson

• Decision Date: 11 March 1994
• Citation: 633 So.2d 918
• Parties: 93 0657 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 918

633 So.2d 918

93 0657 La.App. 1 Cir. 3/11/94

Roger PENTON and Patricia Penton v. Ashley CLARKSON.

No. 93 CA 0657.

Court of Appeal of Louisiana First Circuit.

March 11, 1994.

Ronald L. Causey, Baton Rouge, for plaintiff-appellant Roger Penton and Patricia Penton.

Daniel K. Rester, Baton Rouge, for defendant-appellee Ashley Clarkson.

Before CARTER, GONZALES and WHIPPLE, JJ.

[93 0657 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a trial court judgment granting the defendant's motion for summary judgment.

FACTS

On February 5, 1991, nineteen-year-old Jeffrey Paul Penton was sharing an apartment with Ashley Clarkson, whom he had been dating for approximately two years. On the evening of February 5, 1991, Jeffrey and Ashley got into an argument which lasted several hours. At approximately 11:30 p.m., Jeffrey was injured by a self-inflicted gunshot wound to the head. He died several hours later on February 6, 1991, as a result of that injury.

On January 29, 1992, Roger Penton and his former wife, Patricia Penton, filed this action for the wrongful death of their son Jeffrey. Ashley Clarkson was named as defendant in the action. The petition alleged that Clarkson had known Jeffrey for several years, knew and understood his emotional propensities, and recognized his state of mind on the evening of February 5, 1991, but that she failed to take any affirmative action to prevent Jeffrey's death. The petition alleged that Ashley was responsible for Jeffrey's death for the following reasons:

a. She engaged in loud, boisterous and provocative arguments with the deceased for several hours on the evening of February 5, 1991, causing him serious emotional conflict and turmoil;

b. She failed to call or summon help or assistance from family members, friends or professional personnel when the deceased threatened to kill himself;

c. She failed to remove or hide the deceased's hand gun after she realized that he was emotionally distraught and possibly a danger to himself, though she had sufficient opportunities to do so d. Other acts and omissions of negligence which will be shown at trial.

[93 0657 La.App. 1 Cir. 3] On April 29, 1992, Clarkson filed a motion for summary judgment, alleging that there was no genuine issue of material fact in dispute and that she was entitled to judgment as a matter of law. In support of the motion for summary judgment, Clarkson attached her affidavit along with the affidavits of Madelaine Monroe and Robert Messick (two of Jeffrey's personal friends) and Wayne Cupit, a captain in the Baton Rouge Police Department. In the motion for summary judgment, Clarkson requested penalties and attorney's fees under LSA-C.C.P. art. 863.

On June 30, 1992, Clarkson filed a motion for leave of court to file a supplemental memorandum in support of her motion for summary judgment. By order dated July 1, 1992, the trial court granted Clarkson leave to file the supplemental memorandum. Attached to the memorandum were the affidavits of Doug Moreau, District Attorney for the Parish of East Baton Rouge, and Greg Phares, Chief of Police for the City of Baton Rouge.

On July 22, 1992, plaintiffs amended their petition, alleging that, because of Clarkson's close personal relationship with Jeffrey, there was a legal duty imposed upon her to take action to prevent injury to Jeffrey or to prevent his self-inflicted death. The petition further alleged that Clarkson breached that duty and is, therefore, responsible for Jeffrey's death.

On July 30, 1992, plaintiffs filed an opposition to the motion for summary judgment. Attached to the opposing memorandum were affidavits of the following persons: Judith Jordan, Jeffrey's and Ashley's neighbor; Roger Penton, Jeffrey's father; Tammy Hooks, Jeffrey's step-sister; Heather Bourque, Jeffrey's personal friend; Patricia Penton, Jeffrey's mother; and Ronald Causey, attorney for plaintiffs.

On July 31, 1992, the trial court granted Clarkson's motion for summary judgment, but denied her claim for attorney's [93 0657 La.App. 1 Cir. 4] fees and costs under LSA-C.C.P. art. 863. The judgment was signed on September 2, 1992. Plaintiffs appealed from that adverse judgment, assigning the following issues for our review:

1. Considering the unique and special relationship between Ashley Clarkson and Jeffrey Paul Penton, and considering the events and conduct of Ashley Clarkson leading up to Jeffrey Paul Penton's injury, did she have a duty to do whatever she could and to take whatever action possible to prevent injury or self-inflicted death to Jeffrey Paul Penton?

2. By her acts and omissions, did Ashley Clarkson breach that duty?

3. Was the breach of that duty by Ashley Clarkson a contributing cause to the gunshot injury sustained by Jeffrey Paul Penton and his death shortly thereafter?

Clarkson answered the appeal, alleging that the trial court erred in denying her costs and attorney's fees. Clarkson also contends that she is entitled to damages for frivolous appeal.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Thompson v. South Central Bell Telephone Company, 411 So.2d 26, 27 (La.1982); Legros v. Norcen Exploration, Inc., 583 So.2d 859, 860 (La.App. 1st Cir.), writs denied, 588 So.2d 101, 109 (La.1991).

A fact is material if it is essential to the plaintiff's cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigant's [93 0657 La.App. 1 Cir. 5] ultimate success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989).

The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381, 384 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136-37 (La.1991). To satisfy this burden, the mover must meet a strict standard by showing that it is quite clear as to what the truth is and excludes any real doubt as to the existence of material fact. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d at 1120. The court must closely scrutinize the papers supporting the position of the mover, while the papers of the party opposing the motion are to be treated indulgently. Ortego v. Ortego, 425 So.2d 1292, 1297 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 147 (La.1983).

Summary judgments are not favored and should be used cautiously and sparingly, and any reasonable doubt should be resolved against the mover. Penalber v. Blount, 550 So.2d at 583; Hollis v. City of Baton Rouge/Parish of East Baton Rouge, 593 So.2d 388, 389 (La.App. 1st Cir.1991). In determining whether material facts have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). This is true even if grave doubt exists as to a party's ability to establish disputed facts at trial. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068, 1070-71 (La.App. 3rd Cir.1985). Where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to [93 0657 La.App. 1 Cir. 6] the party opposing the motion. Jones v. Briley, 593 So.2d 391, 393 (La.App. 1st Cir.1991).

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Sun Belt Constructors, Division of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5th Cir.1988).

DUTY

The standard of conduct required of persons in Louisiana in their relationships with one another as a basis of delictual liability is set forth in LSA-C.C. articles 2315 and 2316. LSA-C.C. art. 2315 provides, in pertinent part, that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." A person is also responsible for the damages he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill. LSA-C.C. art. 2316.

The elements of a cause of action under LSA-C.C. arts. 2315 and 2316 are fault, causation, and damage. Oswald v. Rapides Iberia Management Enterprises, Inc., 452 So.2d 1258, 1262 (La.App. 2nd Cir.), writ denied, 457 So.2d 14 (La.1984). Prerequisites to a determination of fault are the existence of a legal duty coupled with a breach of that duty. Seals v. Morris, 410 So.2d 715, 718 (La.1982) (on rehearing). The legal duty is the obligation to conform to the standard of conduct of a reasonable person under like circumstances. United States Fidelity & Guaranty Company v. Hi-Tower Concrete Pumping Service, Inc., 574 So.2d 424, 434 (La.App. [93 0657 La.App. 1...