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Louise C. CARMAN, Individually, and on Behalf of Her Son, Nicholas Robert Carman (D) v. Dr. Mary LIVERS, in Her Official Capacity as Deputy Secretary of the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice, and State of Louisiana, Through the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice
In this action for wrongful death and survival damages, the plaintiff, Louise C. Carman, individually and on behalf of her son, Nicholas Robert Carman, appeals a summary judgment granted in favor of the defendant, AMIkids Acadiana, Inc. (“AMIkids”), which dismissed her claims against AMIkids.1 For reasons that follow, we affirm.
On September 17, 2013, C.M., who was then a juvenile, was adjudicated delinquent based on two counts of simple burglary, violations of La. R.S. 14:62, in the Juvenile Court for the City of Slidell, in St. Tammany Parish, Louisiana. The juvenile court placed C.M. into the custody of the State of Louisiana, through the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice (“OJJ”), for three years. C.M. was assigned to secure custody at Swanson Center for Youth (“Swanson”) for rehabilitation. See La. R.S. 15:906(B) (providing that “[it] is hereby declared to be the public policy of this state that commitment of a juvenile to the care of [OJJ] is not punitive nor is it in any way to be construed as a penal sentence, but as a step in the total treatment process toward rehabilitation of the juvenile ․”).
Prior to C.M.’s adjudication as a delinquent for the two counts of simple burglary and being placed into the custody of OJJ at Swanson, C.M. had a history of delinquency adjudications, including aggravated criminal damage to property, simple burglary of an inhabited dwelling, simple criminal damage to property, theft, and disturbing the peace. He also had a history of behavioral and conduct problems, substance abuse issues, and mental health issues that required prescription medication.
On August 27, 2014, OJJ filed a motion seeking to modify the juvenile court's September 17, 2013 disposition. Therein, OJJ noted that during C.M.’s commitment at Swanson, he participated in individual and group counseling for behavior management and substance abuse. Based on C.M.’s “needs and progress,” “the risk of danger to society, [and] the community resources needed to serve the best interest of the child and society,” OJJ recommended that C.M. be released to the custody of his aunt, A.M., on parole supervision.2 See La. R.S. 15:906 (A) and (B) (providing that OJJ “may recommend to the committing court the release of any juvenile committed to its care, who, in the opinion of [OJJ], is ready to be returned to his own home, or to a substitute home” and that “the recommendations of the [OJJ] should be given careful consideration by the court in determining what is to the best interest of the juvenile.”).
On October 22, 2014, the juvenile court modified its September 17, 2013 disposition by recommending that C.M. be placed in non-secure custody. In accordance therewith, on October 23, 2014, C.M. was admitted as a resident of AMIkids, a non-secure residential facility located in Branch, Louisiana. AMIkids had a contract with OJJ to provide a residential treatment program, which is a community-based structured behavioral treatment for youth between the ages of 12 and 18, who have been placed into the custody of OJJ after being adjudicated delinquent or in need of services.
At the time C.M. was placed at AMIkids, OJJ's Standard Operating Procedures For Non-Secure Care (“SOP”) provided for the granting of “home passes” to juveniles in non-secure custody. More specifically, section 3.4(A) of the SOP provided:
Home passes shall be granted to allow the youth to visit with the person(s) identified as the parent/guardian ․ Home passes for youth shall be considered an integral part of the youth's treatment plan. ․Prior to granting home passes, the potential risk to public safety, benefit to youth, and adequacy of home supervision shall be considered.
The SOP also provided:
Prior to granting an initial home pass to a youth, the provider shall contact the placing region to determine whether the court or [OJJ] has placed restrictions on the youth's pass privileges. Home passes shall be approved in writing by the placing region. Provider shall have a written plan to monitor youth during home passes[,] which can include regular phone contact, curfew checks, and/or random home visits.
Section 3.4(B)(2) of the SOP provided: “[t]o the extent possible, youth should be in compliance with the behavioral treatment program to be eligible for a home pass ․.”
On November 21, 2014, approximately one month after C.M. was placed in non-secure custody at AMIkids, in accordance with OJJ's SOP, AMIkids requested that C.M. be granted a home pass for the upcoming Thanksgiving holiday. The home pass request was sent to Mark Davis, who was C.M.’s OJJ probation and parole officer (“PPO”) both prior to and after his September 17, 2013 delinquency adjudication. PPO Davis approved C.M.’s home pass on November 24, 2014.
The AMIkids home pass form specifically set forth that “[h]ome pass is a privilege and should never be abused” and that “[h]ome passes are rewarded to students who have met the appropriate rank of Seaman (60 days) before a home pass is granted.” Pursuant to the home pass granted to C.M., he was to be released to the physical custody of his aunt, A.M., for the time period of November 26, 2014 to December 1, 2014. Prior to being released on the home pass, a list of rules and regulations by which to abide while on the home pass was provided to and signed by C.M. and his aunt, A.M. C.M.’s aunt was also provided with C.M.’s prescription medication and agreed to take full responsibility for administering C.M. his prescription medication and ensure that he abided by all of the rules and regulations. The specific rules and regulations for the home pass included that A.M. would be responsible for adequate supervision and safety of the C.M. while at home, that she would know his whereabouts at all times, that she would administer to him his prescribed medication, that C.M. would meet the required curfew time, that he would be contacted for curfew check and must be home when contacted, that C.M. would be drug tested upon return to AMIkids, and that a positive drug screen would result in a loss of home pass privileges. In addition, C.M. was specifically counseled about the skill of asking permission; he also specifically agreed that his curfew would be 6:00 p.m., that he would ask for A.M.’s permission to go anywhere, that he would refrain from smoking, that he would “not hang out with negative peers,” and that he would be respectful.
Unrelated to C.M.’s home pass, on Tuesday, November 25, 2014 (the day prior to the start of C.M.’s home pass), the plaintiff herein, Louise Carman, was purportedly the victim of a burglary at her residence in Slidell, Louisiana. The alleged crime was reported to the St. Tammany Parish Sheriff's Office by Nicholas Carman, Louise Carman's son. Nicholas Carman claimed that an envelope of cash, which had been in a desk drawer inside of their home, had been taken. During the investigation, Nicholas Carman named, as a potential suspect, Marty Anderson, a person with whom he was acquainted and who, at the time, was dating C.M.’s mother. However, the investigating deputy suspected that Nicholas Carman had staged the scene to cover the fact that he had taken the money from his mother. Notably, several weeks prior to C.M.’s release on the home pass, Nicholas Carman had beaten and injured C.M.’s mother.
On the evening of Wednesday, November 26, 2014, C.M. began his home pass. The following day, Thursday, November 27, 2014 was Thanksgiving Day. According to C.M., his aunt gave him his prescription medication on Thanksgiving morning and the following morning, Friday, November 28, 2014. During C.M.’s home pass, C.M., his aunt A.M., and his cousin were spending the night in Mississippi and driving to Slidell each morning. A.M. gave C.M. her phone so that he could use it to talk to his friends during his home pass. Pictures of C.M.’s mother following her beating were on A.M.’s phone. While using A.M.’s phone, C.M. discovered the pictures of his mother with her “face bruised up,” “cheekbone broke[n],” and “stitches from one side of her face to her eyebrow by her mouth.” C.M. did not ask his aunt why his mother was beaten, and he believed the pictures were taken “because they ․ [were] trying to press charges on somebody for doing it.”
While on home pass, C.M. met Marty Anderson. C.M. had also heard that his cousin was dating someone named “Nick” and wanted to meet him. At a gathering on the evening of Saturday, November 29, 2014, C.M. met Nicholas Carman. Marty Anderson was also present. During this gathering, C.M. was using drugs, smoking synthetic marijuana and drinking beer, along with Nicholas Carman, Marty Anderson, and several other people.
Marty Anderson and Nicholas Carman began arguing about the robbery/break-in at the Carmans’ home. Marty Anderson then instigated an altercation between C.M. and Nicholas Carman by getting Nicholas Carman to admit to C.M. that he (Nicholas Carman) was the one who had beaten his mother. C.M. envisioned “the picture of [his] momma from the phone․blanked out ․ [and] clicked.” C.M. then punched Nicholas Carman, and a physical fight ensued. When C.M. saw Nicholas Carman “reaching for his box cutter knife,” C.M. pushed Nicholas Carman and grabbed the knife that he had with him, which he had taken from his aunt's home. C.M. then stabbed Nicholas Carman, who then ran into the woods; C.M. followed him and stabbed him again. Ultimately, C.M. stabbed Nicholas Carman approximately twenty-three times, resulting in his death. C.M. was subsequently arrested, pled guilty to manslaughter,3 and is currently serving a forty-year sentence.
On November 30, 2015, Louise Carman instituted these proceedings seeking damages for the wrongful death of her son, Nicholas Carman, as well as survival damages on his behalf. Dr. Mary Livers, in her official capacity as Deputy Secretary of the Department of Public Safety and Corrections, and OJJ were named as defendants (collectively “the State”). AMIkids was subsequently named as a defendant pursuant to a supplemental and amending petition. In the plaintiff's petitions, she claimed that the State and AMIkids were negligent in recommending and allowing C.M. to be released on a home pass and in failing to monitor him while on the home pass and that their negligence caused damages.
AMIkids filed an answer generally denying the allegations of the petitions and denying that it was at fault or that it had caused the alleged damages. AMIkids specifically asserted that the damages were caused as a result of the negligence, fault, acts, and attacks of Nicholas Carman and others and that C.M. had acted in self-defense, thus barring any recovery from AMIkids. The State also filed an answer generally denying the allegations of the petitions.4 The State asserted in its answer that the accident and injuries were not caused by its negligence or fault, but rather were caused by the fault or negligence of third parties for whom the State was not legally responsible, including the decedent, Nicholas Carman. The State also specifically pled the statutory limitations of liability contained in La. R.S. 13:5106, as well as discretionary immunity under La. R.S. 9:2798.1.
Thereafter, AMIkids filed a motion for summary judgment seeking the dismissal of the plaintiff's claims against it. Therein, AMIkids asserted that it owed no duty to the plaintiff because the criminal act of C.M. that resulted in the death of Nicholas Carman was not foreseeable. Alternatively, AMIkids asserted that, to the extent there was a duty, AMIkids did not breach its duty and that its actions were neither the cause-in-fact nor the legal cause of Nicholas Carman's death. The State also filed a motion for summary judgment seeking the dismissal of the plaintiff's claims against it on the same basis as AMIkids. In addition and in the alternative, the State sought the dismissal of the plaintiff's claims on the basis of its affirmative defense of discretionary immunity, arguing that its actions with regard to recommending and/or granting C.M. a home pass were discretionary. Thus, the State claimed it was immune from liability for such discretionary acts under La. R.S. 9:2798.1. The plaintiff filed a combined opposition to both motions for summary judgment, essentially claiming that given C.M.’s history of legal, family, behavioral, mental, social, and medical problems, AMIkids should not have requested, and PPO Davis should not have approved, a home pass for C.M. and that AMIkids and the State failed to monitor C.M. while on the home pass.
After a hearing on January 25, 2021, the trial court ruled in favor of AMIkids and the State and granted their respective motions for summary judgment. The trial court specifically found that the plaintiff failed to offer sufficient evidence establishing that either AMIkids or the State breached any duty in recommending or granting C.M. a home pass. The trial court also found that “the events [that occurred on] November 29th, 2014 were about as non-foreseeable as you can get” and that “there's no way you could say that this was foreseeable that would constitute a causation between any potential breach and the damages.” Lastly, the trial court found that both AMIkids and the State were entitled to immunity for discretionary acts under La. R.S. 9:2798.1, in that they were making a discretionary decision as to whether to grant C.M. a home pass.
With respect to AMIkids, a judgment in accordance with the trial court's ruling, granting AMIkids’ motion for summary judgment, was signed on February 8, 2021, and it is from this judgment that the plaintiff has appealed.5 On appeal, the plaintiff contends the trial court erred in finding that there were no genuine issues of material fact as to whether there was a breach of the duty on the part of AMIkids and in its conclusion that the events of November 29, 2014, were not foreseeable.6
LAW AND DISCUSSION
Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. In re Succession of Beard, 2013-1717 (La. App. 1st Cir. 6/6/14), 147 So. 3d 753, 759-60. That is, after an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).
The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1). If the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Rather, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment will be granted. Murphy v. Savannah, 2018-0991 (La. 5/8/19), 282 So.3d 1034, 1038.
In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is one as to which reasonable persons could disagree. However, if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66; Marks v. Schultz, 2020-0197 (La. App. 1st Cir. 12/10/20), 316 So.3d 534, 538. Material facts are those that potentially insure or preclude recovery, affect the litigant's success, or determine the outcome of a legal dispute. Jenkins v. Hernandez, 2019-0874 (La. App. 1st Cir. 6/3/20), 305 So.3d 365, 371, writ denied, 2020-00835 (La. 10/20/20), 303 So.3d 315. In other words, a fact is “material” when its existence or nonexistence is essential to the plaintiff's cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. Any doubt as to a dispute regarding an issue of material fact must be resolved against granting the motion and in favor of a trial on the merits. Id. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Shoemake v. Scott, 2019-1261 (La. App. 1st Cir. 8/3/20), 310 So.3d 191, 193-194.
In this case, the plaintiff's action against AMIkids (and the State) is based on negligence, i.e. La. C.C. art. 2315, et seq. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Under this analysis, a determination of liability requires proof of five separate elements, all of which must be answered affirmatively for the plaintiff to recover: (1) proof that the defendant had a duty to conform his conduct to a specific standard of care (“the duty element”); (2) proof that the defendant failed to conform his conduct to the appropriate standard (“the breach of duty element”); (3) proof that the defendant's substandard conduct was a cause-in-fact of the injuries (“the cause-in-fact element”); (4) proof that the defendant's substandard conduct was a legal cause of the injuries (“the scope of the duty,” “the scope of liability,” or “the scope of protection element”); and (5) proof of actual damages (“the damages element”). See Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So.2d 318, 322. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id. at 326; Bridgefield Casualty Insurance Company v. J.E.S., Inc., 2009-0725 (La. App. 1st Cir. 10/23/09), 29 So.3d 570, 573.
In this case, the trial court granted summary judgment in favor of AMIkids based on the lack of sufficient evidence for the breach of duty element and the legal cause or scope of the duty element, i.e. lack of foreseeability. Based on our de novo review of the documents offered in support of and in opposition to AMIkids motion for summary judgment, we agree that sufficient evidence to establish both elements is missing in this case.
By statute, C.M's. commitment to Swanson was not penal in nature, but rather a step in his rehabilitation process. See La. R.S. 15:906. After a year in this secure facility, where he participated in individual and group counseling for behavior management and substance abuse, OJJ recommended that he be released to the custody of his aunt on parole supervision. Although the juvenile court did not release C.M. to the custody of his aunt on parole supervision, the juvenile court determined that a transfer from a secure facility to a non-secure facility was warranted. Once C.M. was transferred to a non-secure facility, i.e. AMIkids, and pursuant to OJJ's SOP, the granting of home passes was considered to be an integral part of his treatment plan.
With respect to granting a home pass, OJJ's SOP imposed the following duties: (1) “[p]rior to granting home passes, the potential risk to public safety, benefit to youth, and adequacy of home supervision shall be considered;” (2) “[h]ome passes shall be approved in writing by the placing region;” (3) “[p]rovider shall have a written plan to monitor youth during home passes[,] which can include regular phone contact, curfew checks, and/or random home visits;” and (5) “[t]o the extent possible, youth should be in compliance with the behavioral treatment program to be eligible for a home pass.”7 Furthermore, once C.M. was on a home pass, AMIkids had a duty to monitor C.M. in accordance with its written plan. The documents offered by AMIkids in support of its motion for summary judgment established that all of these duties were complied with prior to granting and releasing C.M. on a home pass and that it complied with its written plan to monitor C.M.
The documents offered by AMIkids establish that C.M. was transferred to non-secure custody by the Juvenile Court for the City of Slidell, Parish of St. Tammany. In accordance with the Juvenile Court's order, OJJ placed C.M. into AMIkids, a non-secure facility that provided a residential behavioral treatment program. Prior to C.M.’s placement at AMIkids (and prior to C.M.’s commitment to Swanson), Mark Davis was assigned as C.M.’s OJJ probation and parole officer. An affidavit of PPO Davis, as well as portions of his deposition testimony, were offered by AMIkids in support of its motion for summary judgment. PPO Davis explained that a youth, who is in non-secure custody and is in compliance with the rules of the non-secure placement, can earn home passes. On November 21, 2014, AMIkids contacted PPO Davis regarding a home pass for C.M., and several days later, on November 24, 2014, he approved the home pass. PPO Davis explained that C.M.’s request for a home pass was not required to be forwarded to the district attorney's office or the juvenile court because he was confined to a non-secure facility. PPO Davis was familiar with C.M.’s delinquent background and was not aware of any information indicating that C.M. had a propensity for violence while he was at Swanson or AMIkids. PPO Davis also stated that prior to the incident on Saturday, November 29, 2014, he believed that C.M. had made favorable progress while at Swanson and AMIkids.
AMIkids also offered the affidavit of Renatta Thomas, the director of treatment at AMIkids, in support of its motion for summary judgment. According to Ms. Thomas, during the time period that C.M. was at AMIkids, he was in good standing, was attending classes, and had not been on a home or weekend pass in over a year and a half since he was committed to Swanson. Therefore, pursuant to OJJ's SOP, AMIkids recommended that C.M. be allowed to go on a home pass for the time period November 26-30, 2014, and subsequently obtained written permission from C.M.’s OJJ probation and parole officer to release C.M. on a home pass. In preparation for his home pass, C.M. underwent counseling and a list of rules and regulations was prepared for C.M. C.M.’s medication was placed in a plastic bag to be given to his aunt, A.M., who was to care for C.M. during the home pass. When C.M. was released to his aunt, she was given the prescription medication and signed a form stating that she would give C.M. his medication and ensure that he abided by all of the rules and regulations of AMIkids during the weekend pass.
Both C.M. and his aunt signed the document entitled “Home Pass Rules Acknowledgment Form,” which set forth in detail the rules and regulations for AMIkids while on a home pass, which included among other things, responsibility for adequate supervision and safety of the youth, knowing the whereabouts of the youth at all times, meeting curfew, random curfew checks, and drug testing upon return to AMIkids.
C.M.’s deposition testimony was also offered by AMIkids in support of its motion for summary judgment. Therein, C.M. admitted that he was provided rules and regulations for his home pass, that while he was on the home pass, he violated some of the established rules, including consuming alcohol and drugs, and that he did not accept all of the curfew call checks. However, when he was asked whether anyone from AMIkids or the State monitored him or checked on him while he was on home pass, he specifically stated that “[t]hey had the people at AMI [kids] ․call my people's phone. It was like a check-in service to see if I was with my aunt.” We also note that the corporate deposition of AMIkids, offered by the plaintiff in opposition to the motion for summary judgment, confirmed C.M.’s testimony in this regard, as the corporate representative testified that AMIkids maintained regular phone contact while C.M. was on home pass.
Thus, the documents offered by AMIkids in support of its motion for summary judgment established the absence of factual support for the breach element of the plaintiff's claim. The documents established that C.M. was in compliance with his behavioral treatment plan at AMIkids and that the risks of and benefits to granting C.M. a home pass were considered prior to granting C.M. a home pass. C.M.’s home pass was approved in writing by OJJ, through his OJJ probation and parole officer. Additionally, AMIkids had a written plan to monitor C.M. during his home pass, which included random curfew calls, and AMIkids complied with its written plan to monitor C.M. by calling C.M. and his aunt.
In opposition to AMIkids’ motion for summary judgment on this issue, the plaintiff relied on C.M.’s documented history of problems and on the fact that C.M. was only at AMIkids for approximately thirty-four days prior to being granted a home pass. The plaintiff argues that given C.M.’s history, AMIkids should not have granted C.M. a home pass. While C.M.’s history of behavioral and conduct problems, substance abuse issues, and mental health issues was certainly relevant to AMIkids's duty to consider the potential risk to public safety prior to granting a home pass, the mere existence of this history is insufficient to establish a genuine issue of material fact as to whether AMIkids breached that duty. Furthermore, the plaintiff's strict reliance on C.M.’s history of problems ignores the established policy of this State that the commitment of a juvenile is considered a step in the total treatment process toward rehabilitation of the juvenile and, that once a juvenile is placed in non-secure care, home passes are considered an integral part of the juvenile's rehabilitation treatment program. We recognize that C.M.’s history of problems occurred prior to C.M.’s commitment and rehabilitative treatment at Swanson and AMIkids. The documents establish that C.M. was initially placed in secure custody—presumably because of his history of problems—but due to his progress and behavioral improvements, the disposition was modified to non-secure custody. While in non-secure custody, C.M. was in compliance with his treatment program and had made progress such that AMIkids determined that a home pass for the Thanksgiving holiday should be granted. Thus, we find C.M.’s history of social issues, in and of itself, fails to establish that AMIkids breached any of its duties, as set forth above.
The plaintiff also relied on the fact that C.M. was granted a home pass approximately thirty four days after his placement at AMIkids, as well as the statement set forth on the AMIkids home pass form, suggesting that a student must be at AMIkids for sixty days prior to being granted a home pass. As set forth above, the AMIkids home pass form, provides: “Home pass is a privilege and should never be abused. Home passes are rewarded to students who have met the appropriate rank of Seaman (60 days) before a home pass is granted.” AMIkids does not dispute that C.M. had not been at AMIkids for sixty days and that he was a “recruit,” not a “seaman.”
First and foremost, we note that the statement set forth on the AMIkids home pass form is not provided for in either OJJ's SOP or in AMIkids’ contract with the State. Indeed, PPO Davis testified in his deposition that he was not familiar with the “seaman status” and stated that the only document he considered when evaluating home passes was OJJ's SOP. Furthermore, we note that this statement merely provides that home passes are “rewarded” to students who have met the rank of seaman (60 days) before a home pass is granted. It does not strictly limit home passes to such students, i.e. it does not state that home passes cannot be rewarded or granted to a student who has not met the rank of seaman or who has not been at AMIkids for sixty days.
During the corporate deposition of AMIkids, offered by the plaintiffs in opposition to the motions for summary judgment, the corporate representative testified that since C.M. was considered a “step down” kid, in that he came from a secure facility to a non-secure facility by demonstrating enough positive behavior, he was able to move through the process of receiving a home pass faster than kids who come to a non-secure facility “off the streets.” The corporate representative further explained that there had been numerous instances where students had gone on a home pass prior to being at AMIkids for sixty days. The corporate representative also stated that C.M. “had been great with [AMIkids and] ․ probably was one of [their] better students.” When the corporate representative was asked whether “AMIkids consider[ed] the potential risks to the public's safety when it was considering C.M.’s home pass, the corporate representative replied “[n]o.” However, he explained that AMIkids “didn't see any risk” to public safety. (Emphasis added) Thus, we cannot say that AMIkids’ actions in granting C.M. a home pass after being at AMIkids for approximately one month, rather than sixty days, in and of itself, establishes that AMIkids breached any of its duties relative to C.M.’s home pass.
Lastly, the plaintiff relies on the affidavit and expert report of John F. Fidanza, III, a Medical Psychologist Advanced Practice. Essentially, Dr. Fidanza opined that given C.M.’s history of problems, granting C.M. a home pass thirty-four days after being at AMIkids was premature and placed the public and C.M. at serious risk. However, we have already determined that neither C.M.’s history nor the time within which AMIkids granted the home pass established a genuine issue of material fact as to whether AMIkids breached any of its duties. Further, Dr. Fidanza's opinion that AMIkids placed the public at risk is insufficient to create a genuine issue of material fact as to whether AMIkids breached its actual duties. AMIkids’ duty was not to ensure that there was no risk to the public; rather, it had had a duty to consider the potential risk to public safety prior to granting a home pass, to ensure that C.M. was in compliance with his treatment program, to obtain approval of the home pass from OJJ, and to have and comply with a written plan to monitor C.M. while on home pass. The documents offered established that AMIkids did not consider C.M. to be a risk, C.M. was in compliance with his treatment program, the home pass was approved by OJJ, and AMIkids had and complied with its written plan to monitor C.M.
Therefore, based on our de novo review of the record, we find that the plaintiff failed to establish a genuine issue of material fact as to whether AMIkids breached its duties regarding C.M.’s home pass. Furthermore, even if we assume that the plaintiff set forth factual support sufficient to establish the existence of a genuine issue of material fact as to whether AMIkids breached any of its duties regarding C.M.’s home pass, we also find that the plaintiff failed to establish that AMIkids’ alleged breach of its duty was the legal cause of the damages.
Legal cause presents a legal question and requires a proximate relation between the actions of a defendant and the harm which occurs, and such relation must be substantial in character. Rando v. Anco Insulations Inc., 2008-1163, 2008-1169 (La. 5/22/09), 16 So.3d 1065, 1088; Roberts v. Benoit, 605 So.2d 1032, 1056 (La. 1991) (on rehearing). Legal cause or the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty; the inquiry asks whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Roberts, 605 So.2d at 1052; Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 293-294 (La. 1993). Although the determination of legal cause involves a purely legal question, this legal determination depends on factual determinations of foreseeability and ease of association. See Todd v. State, Dept. of Social Services, 96-3090 (La. 9/9/97), 699 So.2d 35, 39; Perkins v. Entergy Corp., 98-2081 (La. App. 1st Cir. 12/28/99), 756 So.2d 388, 410. affirmed, 2000-1372 (La. 3/23/01), 782 So.2d 606. A risk may not be within the scope of a duty where the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. Todd, 699 So.2d at 39.
In Frank v. Pitre, 353 So.2d 1293, 1294 (La. 1977), an action for damages was brought by a policeman injured by gunshot wound in a barroom disturbance caused by a prisoner who had been released pursuant to the sheriff's policy of granting weekend passes. In holding that affording the prisoner a weekend pass was not the legal cause of the plaintiff's injuries, the supreme court stated, “[i]t is not enough to say that if [the prisoner] had not been released under the sheriff's policy of weekend passes, the tragedy would not have occurred. If [the prisoner's friend had not given him a ride to town[,] the shooting would not have happened. There must be something more; there must be a closer connection between the act of the defendant and the injury of the plaintiff.” Frank, 353 So.2d at 1296. The supreme court further stated, “[w]hatever the theoretical basis for liability is called, the claimed cause of the injury (the release of [the prisoner]) did not sufficiently contribute to the injury to create liability in the defendant.” Id.
Likewise, in LeBlanc v. State, Through Dept. of Corrections, 393 So.2d 125, 126 (La. App. 1st Cir.), writ denied, 394 So.2d 1235 (La. 1980), the plaintiff brought suit against the State of Louisiana, through the Department of Corrections (“DOC”), for damages she sustained after a juvenile robbed, brutally beat, and raped her at the laundry where the plaintiff worked. Id. The juvenile had previously been committed to a secure state facility but, after acquiring sufficient merit points, was released on extended leave and placed in an autonomous corrections and rehabilitation facility. In evaluating the plaintiff's claim under the duty-risk analysis, this Court determined that the plaintiff's claim failed the inquiry of whether the risk and the harm encountered by the plaintiff fell within the scope of the protection afforded by the duty that was breached. Id. This Court reasoned that the juvenile's attack on the plaintiff was a completely unforeseeable occurrence and not a result of any act by DOC. LeBlanc, 393 So.2d at 127. Further, on rehearing, this Court clarified its holding, noting that the violence perpetrated on the plaintiff was a spontaneous act of the juvenile, related in no way to his juvenile commitment status, and as such, his vicious attack on the plaintiff was solely his responsibility. LeBlanc, 393 So.2d at 128.
Further, in McIntyre v. St. Tammany Parish Sheriff, 2002-0700 (La. App. 1st Cir 3/28/03), 844 So.2d 304, the plaintiff brought an action for damages against a probation officer and the Louisiana Department of Public Safety and Corrections (“DPS”), claiming that the probation officer's failure to supervise her ex-husband, who was on probation, allowed him to murder their children. In affirming the trial court's grant of summary judgment and dismissal of the plaintiff's claims, this Court determined that the scope of liability or legal cause element of the duty risk analysis was missing. In making this determination, this Court stated:
We find that the senseless and tragic murder of plaintiff's children by her ex-husband/probationer was a completely unforeseeable occurrence and not the result of any act or failure to act on the part of [the probation officer] or the DPS. ․ We cannot say that any action on the part of [the probation officer] could have prevented [the ex-husband/probationer] from shooting and killing his children. The record does not reveal any reason for [the probation officer] to have foreseen the murders. Even if we assume that [the probation officer] breached his duty to supervise [the ex-husband/probationer] on probation, we do not believe that a sufficient connection has been established between [the probation officer]’s alleged breach of duty and the murder of the plaintiff's children. A plaintiff's case must fail if the evidence shows only a possibility of a causative connection or leaves it to speculation or conjecture.
McIntyre, 844 So.2d at 309-310.
Lastly, in Harper v. Layrisson, 99-0544 (La. App. 1st Cir. 4/10/00), 764 So.2d 1061, writ denied, 2000-1312 (La. 6/23/00), 765 So.2d 1044, and Hebert v. Layrisson, 2002-0361 (La. App. 1st Cir. 5/9/03), 849 So.2d 643, writ denied, 2003-1591 (La. 10/3/03), 855 So.2d 318, which involve the same operative facts, an arrestee was allowed to sign himself out of parish jail on his own recognizance, without posting the bail fixed by the judge and without approval of the judge. Harper, 764 So.2d at 1062; Hebert, 849 So.2d at 645. The arrestee was given a return date to appear in court for arraignment, and the day before his scheduled arraignment, he separately broke into the home of the plaintiffs’ mother in Harper and the plaintiff in Hebert, and he severely beat both women. Harper, 764 So.2d at 1062; Hebert, 849 So.2d at 645. Actions for damages were commenced against the sheriff and the warden of the parish jail, and in both cases, this Court, citing Frank, 353 So.2d at 1296, held that in order for the defendants’ actions to constitute the legal cause of the plaintiffs’ injuries, there must be some further causal connection or relationship—other than the release—between the alleged breach of duty and the injuries received. See Harper, 764 So.2d at 1065-1066; Hebert, 849 So.2d at 647-648.
In this case, in accordance with the jurisprudence, it is not enough to say that if C.M. had had not been released on a home pass, the tragic death of Nicholas Carman would not have occurred—there must be something more; there must be a sufficiently close causal connection between AMIkids’ actions in recommending, granting, and monitoring C.M.’s home pass and the subsequent killing of Nicholas Carman. We find this close causal connection is lacking. More specifically, the record before us does not contain a factual basis establishing that AMIkids could have foreseen that C.M. would kill Nicholas Carman, a person whom C.M. neither knew nor had a relationship with prior to the commencement of his home pass on November 26, 2014. The killing of Nicholas Carman on the evening of November 29, 2014, was an unforeseeable criminal act committed by C.M. in the heat of blood immediately after learning that Nicholas Carman has beaten his mother and was not the result of any act or failure to act on the part of AMIkids. It is important to note that, as pointed out by AMIkids expert psychiatrist, Harold M. Ginzburg, M.D., J.D., M.P.H., Dr. Fidenza's expert report and opinion failed to address these independent circumstances that led to the death of Nicholas Carman.
The documents in the record establish that while C.M. had a history of conduct and behavior problems, substance abuse issues, and mental health issues, he did not have a history of committing crimes of violence. C.M. had been making sufficient progress towards rehabilitation, as evidenced by the modification of his disposition commitment from secure to non-secure custody, and he was in compliance with his rehabilitative treatment plan at AMIkids. According to OJJ's SOP, home passes were considered to be an integral part of his treatment program, and in accordance therewith, a home pass was requested for C.M. for the 2014 Thanksgiving holiday. Prior to granting C.M. a home pass, AMIkids owed a duty to consider the potential risk to public safety, to obtain approval of the home pass in writing from OJJ, and to have a written plan to monitor C.M. while on his home pass. Once C.M. was on home pass, AMIkids had a duty to monitor C.M. in accordance with its written plan. While C.M. was subject to monitoring, within the specific rules and regulations set forth by AMIkids, C.M. was provided a certain amount of freedom while he was on home pass—a necessary element to his successful rehabilitation. With this limited freedom afforded to C.M., each person who, by chance, came into contact with C.M. while on home pass, bore the risk that prior rehabilitative efforts undertaken would fail. However, this does not make AMIkids responsible for the safety of each and every person whom C.M. may have come into contact with during his home pass.
In our opinion, any potential breach of AMIkids’ duties did not encompass the risk that, after the commencement of C.M.’s home pass, he would: (1) learn that his mother had been beaten a few weeks prior to the commencement of his home pass; (2) view pictures of his mother taken after her beating on a mobile phone that did not belong to him; (3) make acquaintances with Marty Anderson and Nicholas Carman, neither of whom C.M. knew nor had a prior relationship with; (4) drink alcohol and smoke synthetic marijuana with Marty Anderson and Nicholas Carman, in violation of the rules and regulations of his home pass; (5) be present during an argument between Marty Anderson and Nicholas Carman about a purported theft, of which C.M. had no prior knowledge; (6) have Nicholas Carman confess to him (C.M.) that he (Nicholas Carman) had beaten C.M.’s mother; (7) become upset about Nicholas Carman's beating of his mother and engage in a physical fight with him that utilized dangerous weapons; and (8) brutally kill Nicholas Carman by stabbing him approximately twenty-three times. In essence, “too much else has intervened - time, space, people, and bizarreness.” See Roberts, 605 So.2d at 1058, quoting David W. Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., 34 La. L. Rev. 1 (1973).
While we sympathize with the plaintiff over the tragic loss of her son, we find the particular facts, circumstances, interactions, and events leading up to the evening of Saturday, November 29, 2014 and the killing of Nicholas Carman, was a culmination of unexpected and random acts, and it is unrealistic to expect that AMIkids could have anticipated or foreseen this tragedy. Thus, we find, as a matter of law, these particularly unusual set of facts, circumstances, interactions, and events that ultimately led to the death of Nicholas Carman were neither probable nor foreseeable by AMIkids, and consequently, the plaintiff has failed to establish that any action or inaction by AMIkids was the legal cause of Nicholas Carman's death or the plaintiff's injuries.
In sum, we conclude that the plaintiff failed to set forth factual support sufficient to establish a genuine issue of material fact as to whether AMIkids breached any duty to plaintiff and, further, that any potential breach of a duty was not a legal cause of Nicholas Carman's death or the plaintiff's injuries. Accordingly, the trial court correctly granted summary judgment in favor of AMIkids and dismissed the plaintiff's claims against AMIkids, and the February 8, 2021 judgment of the trial court is affirmed.
For all of the above and foregoing reasons, the February 8, 2021 judgment of the trial court granting summary judgment in favor of and dismissing Louise C. Carman's claims against AMIkids Acadiana, Inc. is affirmed. All costs of this appeal are assessed to the plaintiff, Louise C. Carman, individually and on behalf of her son, Nicholas Robert Carman.
Regardless of any act or failure to act on the part of AMIKids, finding the events leading to the tragic death of Nicholas Robert Carman to be unforeseeable, I concur in the result reached by the majority.
1. In the companion case to this appeal, Louise C. Carman v. Dr. Mary Livers, et al., 2021-0702 (La. App. 1st Cir. 04/06/22), 341 So.3d 747, the plaintiff, Louise C. Carman, individually and on behalf of her son, Nicholas Robert Carman, appeals a summary judgment granted in favor of defendants, Dr. Mary Livers, in her official capacity as Deputy Secretary of the Department of Public Safety and Corrections, and the State of Louisiana, through the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice, and dismissing her claims against those defendants.
2. The record reflects that C.M.’s mother, R.M., was incarcerated for most of C.M.’s life and that she has a history of substance abuse and mental health issues.
3. Louisiana Revised Statutes 14:31(A) provides, in pertinent part, that “[m]anslaughter is: (1) [a] homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.”
4. The State also filed a cross-claim and a third party demand against AMIkids. However, there are no issues in this appeal, or in the companion appeal herein, Louise C. Carman v. Dr. Mary Livers, et al., 2021-0702 (La. App. 1st Cir. 04/06/22), 341 So.3d 747, with respect to this cross-claim and third party demand.
5. As to the State, a judgment in accordance with the trial court's ruling, granting the State's motion for summary judgment and dismissing plaintiff's claims against the State was signed by the trial court on February 9, 2021. The plaintiff has also appealed that judgment, which is the subject of the companion appeal, Louise C. Carman v. Dr. Mary Livers, et al., 2021-0702 (La. App. 1st Cir. 04/06/22), 341 So.3d 747.
6. On appeal, the plaintiff also contends that the trial court erred in finding that AMIkids was entitled to immunity for discretionary acts under La. R.S. 9:2798.1 because it was not a state entity. In its appellate brief, AMIkids does not dispute that it was not entitled to discretionary immunity because it was not a subdivision of the State of Louisiana, as set forth in La. R.S. 9:2798.1. Because we find, for the reasons detailed herein, that AMIkids was entitled to summary judgment dismissing Louise Carman's claims against it, we decline to address the propriety of the trial court's ruling on the issue of discretionary immunity.
7. We recognize that OJJ's SOP also imposes a duty on the provider, i.e. AMIkids, to contact the placing region to determine whether the court or OJJ has placed restrictions on the youth's pass privileges. Although the plaintiff contends that AMIkids failed to do this, and AMIkids contends that it did, as it contacted PPO Davis for approval of the home pass, we need not address this duty or any purported breach. The plaintiff does not contend, nor does the record reflect that C.M. had any restrictions on his home pass privileges. Thus, there is no genuine issue of material fact in this regard.
McClendon, J., concurs with reasons.
Response sent, thank you
Docket No: 2021 CA 0701
Decided: April 06, 2022
Court: Court of Appeal of Louisiana, First Circuit.
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