Cote v. City of Shreveport

• Decision Date: 21 September 2011
• Docket Number: No. 46,571–CA.,46,571–CA.
• Citation: 73 So.3d 435
• Parties: Lisa COTE, individually and on behalf of Mallory Brooke Fuller, Plaintiffs–Appellants v. CITY OF SHREVEPORT and Leon Bell, Jr., Defendants–Appellees.
• Court: Court of Appeal of Louisiana — District of US

73 So.3d 435

Lisa COTE, individually and on behalf of Mallory Brooke Fuller, Plaintiffs–Appellants
v.
CITY OF SHREVEPORT and Leon Bell, Jr., Defendants–Appellees.

No. 46,571–CA.

Court of Appeal of Louisiana, Second Circuit.

Sept. 21, 2011.

[73 So.3d 437]

Shuey Smith, LLC, Shreveport, LA, by Richard E. Hiller, Julio E. Rios, for Appellants.

Ronald Forrest Lattier, Curtis Ray Joseph, Jr., Shreveport, LA, for Appellee, City of Shreveport.

Leon Bell, Jr., pro se.

Before GASKINS, MOORE and LOLLEY, JJ.

LOLLEY, J.

[2 Cir. 1] Lisa Cote, individually and on behalf of Mallory Brooke Fuller, appeals the judgment by the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of the City of Shreveport (the “City”), granting the City's Motion for Summary Judgment. For the following reasons, we affirm the trial court's judgment.

Facts

On April 2, 2007, at approximately 1:30 a.m., Leon Bell, Jr., entered Cote's home in the 200 block of Leo Avenue in the Broadmoor neighborhood of Shreveport. Cote was held at knife-point by Bell until Cote's daughter screamed and Bell fled the residence. After an investigation Bell was arrested and charged with aggravated burglary and second degree kidnaping. Ultimately, Bell pled guilty to second degree kidnaping and is presently serving a nine-year hard labor prison sentence in the Louisiana Department of Corrections.

When Bell committed this crime, he was employed by the City in the water department as an assistant trouble-shooter. On the date of the incident, Bell had been working overtime notifying customers of water being turned off in the Broadmoor area. According to the City's records, Bell clocked out of work at 8:30 p.m. As stated, the crime at Cote's home occurred at approximately 1:30 a.m.

As a result of the incident, Cote filed suit against the City. In that lawsuit, Cote maintains that on March 31, 2006 (before the subject incident), Bell came to her house to “check her water,” and she allowed him into her home. According to Cote, Bell repeatedly returned to her home, but [2 Cir. 2] she did not allow him in on those subsequent visits. She also alleges that another time, Bell attempted to enter her home through the back door, but eventually left her property. Cote claims that she informed the City on June 1, 2006, of these incidents with Bell; however, the City has no record of a complaint made against Bell.

In her petition, Cote contends that the City should be held vicariously liable to her, individually and on behalf of the minor child, because the damages she suffered were a result of Bell acting within the course and scope of his employment with the City. She further alleges that the City was negligent for: failing to report Bell as being dangerous; hiring someone with dangerous propensities; not suspending or discharging Bell after being advised of his previous behavior; and, failing to warn the public, particularly Cote, of Bell.

The City moved for summary judgment, asserting that if the facts as alleged in Cote's petition were taken as true, the City could not be held liable for Bell's intentional criminal actions, because at such time Bell was not acting in the course and scope of his employment. The trial court rendered judgment dismissing all of Cote's claims, and the instant appeal ensued.

[73 So.3d 438]

Discussion

On appeal, Cote argues that the trial court erred in granting summary judgment in favor of the City because there exist material issues of fact in dispute. Specifically, Cote maintains that material facts are in dispute on [2 Cir. 3] whether the City was vicariously liable for Bell's actions, and whether it was negligent in retaining Bell as an employee. We disagree.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007–1726 (La.02/26/08), 977 So.2d 880; Adams v. JPD Energy Inc., 45,420 (La.App.2d Cir.08/11/10), 46 So.3d 751, writ denied, 2010–2052 (La.11/12/10), 49 So.3d 892. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Sensebe v. Canal Indem. Co., 2010–0703 (La.01/28/11), 58 So.3d 441. A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment is usually not appropriate for claims based on subjective facts such as...