Opinion
CIVIL ACTION NO. 02-1287, SECTION "K"(4)
March 24, 2004
MINUTE ENTRY
On March 3, 2004, this Court heard a Motion for Summary Judgment filed by Steven Franck (Doc. 58) and granted that motion to the extent that the Court found that there was no liability flowing from Steven Franck's position as a deputy sheriff-on or off-duty; however, the Court deferred ruling on whether Steven Franck was personally liable in his capacity as a civilian arising under Louisiana state law. It ordered plaintiffs to file a supplemental brief on this issue since it had not been directly addressed in the previous briefing.
On March 9, 2004, the Court was informed that plaintiff Nell Fisher, as next friend of the minor, Anthony Wade Fisher, Jr. had nothing to add to her previously submitted Memorandum in Opposition to defendant Steven Franck's Motion for Summary Judgment. The Court has reviewed the pleadings in this matter and notes that while plaintiffs allege that Franck is being sued in his "individual and official capacity" as Deputy Sheriff of St. Tammany Parish, there are no specific allegations that are not couched in terms of some official duty arises out of his capacity as a "law enforcement officer."
As noted in its previous oral ruling, Franck was employed by the St. Tammany Parish Sheri ff as a jail transportation deputy and had no duties which could give rise to a duty that would create liability in Franck's official capacity. Likewise, the Court is unable to find a legal basis to hold Franck personally liable for this occurrence. No case has been cited to the Court that addresses the liability of a guest passenger for injuries to third-parties, either in the automobile or water craft context. The most closely analogous cases are where a guest passenger-plaintiff sues the driver for his own injuries caused by the negligence of the driver. Even in such instances, the Louisiana Supreme Court has noted that "A guest in an automobile has not duty to supervise the driver." Adams v. Security Ins. Co. of Hartford, 543 So.2d 480 (La. 1989) citing White v. State farm Mut. Auto Ins. Co., 222 La. 994, 64 So.2d 245 (1953). Only where there is proof of a knowing assumption of a great risk such that the court found passengers of being contributorily negligent for a failure to protest has there been a bar to recovery. The record in the instant case is devoid of such evidence. As the Louisiana Supreme Court stated:
Requiring a guest passenger to protest a driver's negligence to be free from comparative fault is unrealistic. Such a protest could serve as a goad instead of a deterrent. Unless there are special circumstances which indicate that a passenger's protests might have influenced a driver to operate more prudently, a passenger has no duty to comment on the operation of an automobile. Furthermore, failure of Adams to protest cannot fairly be described as a cause in fact of the accident. The conflicting statements of Adams are the typical result of hindsight moralizing about what a passenger should have said or done.Adams, 543 So.2d 485-86. Accordingly, IT IS ORDERED that the Motion for Summary Judgment filed by Steven Franck is GRANTED.