96 2538 La.App. 1 Cir. 11/7/97, Rambo v. Walker

• Decision Date: 07 November 1997
• Citation: 704 So.2d 30
• Parties: 96 2538 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 30

704 So.2d 30

96 2538 La.App. 1 Cir. 11/7/97

Bonnie M. RAMBO v. Steve W. WALKER, Herman J. Walker, Sr., and Ruth Parks Individually and in their representative capacities as co-trustees of/and the Steve E. Walker Trustee; DEF Insurance Company; the State of Louisiana through the Department of Public Safety, Office of Motor Vehicles Driver Management Bureau; The Parish of Livingston; and International Indemnity Company.

No. 96 CA 2538.

Court of Appeal of Louisiana First Circuit.

Nov. 7, 1997.

Jerry F. Pepper, Baton Rouge, for Plaintiff/Appellant Bonnie Rambo.

Frank Touchet, Livingston, for Defendants/Appellees Steve Walker, Herman Walker, Ruth P. Walker, The Steve W. Walker Trust.

Pamela Lebato, Baton Rouge, for Defendant/Appellee State.

Rodney Erdey, Livingston, for Defendant/Appellee Parish of Livingston.

Richard Nevils, Baton Rouge, for Defendant/Appellee International Indemnity Co.

Shannon Howard-Duhon, New Orleans, for Defendant/Appellee Trinity Universal Insurance Company.

Before CARTER and FITZSIMMONS, JJ., and TYSON ¹, J. Pro Tem.

[96 2538 La.App. 1 Cir. 3] CARTER, Judge.

This is an appeal from a summary judgment rendered in favor of the Department of Public Safety and Corrections.

FACTS AND PROCEDURAL HISTORY

On August 27, 1994, Bonnie M. Rambo (Rambo), plaintiff herein, was severely injured in an automobile accident. The accident occurred when Steve W. Walker (Walker), the driver of the vehicle in which Rambo was a passenger, lost control of his car and crashed in an area some distance from the roadway. Rambo timely filed suit against Walker, Herman J. Walker, Sr., and Ruth Parks Walker, in their individual capacities and in their representative capacities of the Steve W. Walker Trust; the Steve W. Walker Trust; DEF Insurance Company; the State, through the Department of Public Safety, Office of Motor Vehicles, Driver Management Bureau (DPS); International Indemnity Company; and the Parish of Livingston.

Rambo alleged in her petition that at the time of the accident, Walker had been abusing drugs and alcohol. She claimed Walker had consistently abused drugs and alcohol for a substantial period of his adult life, but immediately prior to the accident, Walker convinced her he had been rehabilitated. Walker had been issued an unrestricted "Class E" driver's license, with an expiration date of July 31, 1995. Rambo contends that the Department of Public Safety knew or should have known of Walker's 1985 arrest in Livingston Parish for driving while intoxicated (DWI); Walker's unsuitability for driving privileges due to his extensive medical history of unsuccessful drug and alcohol rehabilitation treatments; and that DPS' failure to apply LSA-R.S. 32:403.2 to Walker would reasonably and foreseeably lead to his injuring another person in a drug/alcohol related accident. ²

[96 2538 La.App. 1 Cir. 4] Rambo alleged in the alternative that DPS had no meaningful system of detection and/or rules, regulations, medical screening or audits in place that would have prevented Steve Walker from obtaining or renewing his driver's license, given his extensive documented unsuccessful medical experience with drug and alcohol rehabilitation.

DPS answered Rambo's petition and filed a motion for summary judgment. The record reflects Rambo never filed an opposition to DPS' motion. The motion for summary judgment was granted in DPS' favor.

Rambo filed a devolutive appeal with the following specification of error:

La.R.S. 32:403.2 does in fact apply to any driver's physical or mental disability and should not be narrowly interpreted to exclude habitual drug and alcohol abusers who apply for driver's licenses.

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. Kidd v. Logan M. Killen, Inc., 93-1322, p. 4 (La.App. 1st Cir. 5/20/94); 640 So.2d 616, 618; Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467; 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 any 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; Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318, 325 (La.1993); Kidd v. Logan M. Killen, Inc., 640 So.2d at 618-19.

A fact is material if its existence 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 ultimate success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989); Miramon v. Woods, 25,850, p. 10 (La.App. 2nd Cir. [96 2538 La.App. 1 Cir. 5] 6/22/94), 639 So.2d 353, 359; Kidd v. Logan M. Killen, Inc., 640 So.2d at 619; Jarrell v. Carter, 632 So.2d at 323.

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 the mover is entitled to judgment as a matter of law is summary judgment warranted. Kidd v. Logan M. Killen, Inc., 640 So.2d at 619; 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 (La.1991). To satisfy this burden, the mover must meet a strict standard by showing that it is quite clear what the truth is and excludes any real doubt as to the existence of material fact. Kidd v. Logan M. Killen, Inc., 640 So.2d at 619; Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d at 1120. It is only if the court determines that the moving party has met this onerous burden that the burden of proof shifts to the opposing party to present evidence that a material fact is still at issue; only at this point may the adverse party no longer rest on the allegations contained in his or her pleadings. Robertson v. Our Lady of the Lake Medical Center, 574 So.2d at 384.

By Louisiana Acts 1996, First Extraordinary Session, No. 9, the legislature amended LSA-C.C.P. art. 966, stating in LSA-C.C.P. 966 A(2) that:

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. (Emphasis added.)

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. Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d at 325; 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 MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5th Cir.1988).

[96 2538 La.App. 1 Cir. 6] DUTY OF DEPARTMENT OF PUBLIC SAFETY

Duty is a question of law. A duty may be imposed by legislation or by rule of law. The inquiry is whether the plaintiff has any law--statutory, jurisprudential, or arising from general principles of fault--to support [her] claim. Bozeman v. Reed, 92-0858, pp. 12-12 (La.App. 1st Cir. 3/11/94), 633 So.2d 944, 952, writ denied, 640 So.2d 1345 (La.1994).

Generally the statutory scheme for licensing drivers authorizes DPS to investigate drivers and refuse, suspend, or revoke licenses. Specifically, LSA-R.S. 32:414 provides in pertinent part:

E. The department may conduct an investigation to determine whether the license shall be suspended, cancelled, or revoked upon a showing by its records or other sufficient evidence that the licensee:

* * * * * *

* * *

(5) Is incompetent to drive a motor vehicle.

* * * * * *

* * *

(8) Is afflicted with such mental or physical infirmities or disabilities as would constitute grounds for refusal of a license. [Emphasis added.]

LSA-R.S. 32:424 provides:

The department having good cause to believe that a licensed driver or chauffeur is incompetent or otherwise not qualified to be licensed, may upon written notice of at least ten days to the licensee require him to submit to an examination. Upon conclusion of such examination the department shall take action as may be appropriate and may suspend or revoke the license of such person or permit him to retain such license, or may issue a license subject to restrictions as permitted under R.S. 32:423. Refusal or neglect of the licensee to submit to examination shall be ground for suspension or revocation of his license. [Emphasis added.]

The plain wording of these statutes indicates DPS must have some form of notice prior to investigating a licensee with regard to refusal, suspension, or revocation of his license.

A review of the jurisprudence regarding DPS' liability for licensing a handicapped driver, which results in an accident, reflects that notice of a handicap is the crucial factor. In Fowler v. Roberts, 556 So.2d 1, 8 (La.1989), the supreme court, found DPS had violated its duty to adopt reasonable procedures designed to ensure safety on the highways. DPS was aware the applicant had a seizure disorder, which could be dangerous either at the present or in the future. This duty was found to exist not only in the initial issuance of a license, but also in the continuation of the authority to drive.

[96 2538 La.App. 1 Cir. 7] Prior to the accident in Fowler when the driver,...