Opinion
CIVIL ACTION NO. 10-4381
05-11-2012
APRIL DAWN KELLEY, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, B.H., J.A., and W.A.; and JACKLYN ALYSE HICKMAN v. CIRCLE K STORES, INC. and WELLS FARGO INSURANCE SERVICES, USA, INC.
ORDER AND REASONS
Before the Court is the "Motion for Partial Summary Judgment" (Rec. Doc. 26), filed by Plaintiffs April Dawn Kelley and Jacklyn Alyse Hickman ("Plaintiffs"). This motion is opposed by Defendants Circle K Stores, Inc. and ACE American Insurance Company ("Defendants"). (See Rec. Doc. 32). After considering the memoranda filed by the parties, the Court rules that Plaintiffs' motion is DENIED, for the reasons set forth herein.
I. BACKGROUND
Plaintiff April Dawn Kelley ("Ms. Kelley") was shot by an unidentified assailant while shopping in a Circle K convenience store in Bogalusa, Louisiana. Plaintiffs have brought suit against Circle K Stores, Inc. ("Circle K") and its Insurer, ACE American Insurance Company , alleging that Circle K negligently failed to protect Ms. Kelley, a customer in one of its stores, from the crimes of third parties.
II. ARGUMENTS OF THE PARTIES
Plaintiffs seek summary judgment on Defendants' second affirmative defense, which pleads the fault of the unidentified assailant, for whom Defendants are not responsible. Plaintiffs argue that the Court need not apportion fault between Circle K and the non-party assailant, but rather may impose liability on Defendants for all of Plaintiffs' damages because Circle K's negligent failure to ensure the safety of Ms. Kelley is the legal cause of her injuries.
In response, Defendants state that, under Louisiana law, the Court is bound to allocate fault between all parties responsible for Plaintiffs' injuries, including the non-party assailant. Defendants assert that 1996 amendments to Louisiana Civil Code Articles 2323 and 2324 abolished joint and several liability in favor of a pure comparative fault system. As such, Defendants argue that Plaintiffs' motion must be denied as it relies on overturned principles of law.
III. DISCUSSION
A. Legal Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith 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 any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The materiality of facts is determined by the substantive law's identification of which facts are critical and which facts are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id.
B. Analysis
Louisiana Civil Code Article 2323 mandates that "[i]n any action for damages where a person suffers injury . . . the degree or percentage of fault of all persons causing or contributing to injury . . . shall be determined, regardless of whether the person is a party to the action or a nonparty." La. Civ. Code Ann. art. 2323 (2012). Closely related, Louisiana Civil Code Article 2324 states that unless two or more individuals conspired to commit an intentional act, "liability for damages caused by two or more persons shall be a joint and divisible obligation." La. Civ. Code. Ann. art. 2324(B) (2012). Article 2324(B) goes on to state that a joint tortfeasor shall only be responsible for his own portion of fault and "shall not be solidarily liable with any other person for damages attributable to the fault of such other person." Id. In Keith v. U.S. Fid. & Guar. Co., 96-CC-2075 (La. 5/9/97); 694 So.2d 180, 182, the Louisiana Supreme Court stated that Article 2323 mandates that a court allocate fault among all persons contributing to an injury regardless of the person's party status or immunity. Regarding Article 2324(B), the Louisiana Supreme Court held in Dumas v. State Dep't of Culture, Recreation, and Tourism, 2002-CC-0563, p. 12 (La. 10/15/02); 828 So.2d 530, 537, that "the provision abolishes solidarity among non-intentional tortfeasors, and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to Article 2323."
Following these pronouncements by the Louisiana Supreme Court, the Louisiana Courts of Appeal, First, Second and Third Circuits, have held that a trial court must allocate fault between an intentional tortfeasor and a negligent tortfeasor in an action for damages. See McIntosh v. McElveen, 2004-1041 (La. App. 3 Cir. 2/2/05); 893 So.2d 986, writ denied 2005-0528 (La. 4/29/05); 901 So.2d 1069; Morrison v. Kappa Alpha Psi Fraternity, 31805-CA (La. App. 2 Cir. 5/7/99); 738 So.2d 1105; Bell v. Ayio, 97-0534 (La. App. 1 Cir. 11/13/98); 731 So.2d 893. In Morrison v. Kappa Alpha Psi, 31805-CA (La. App. 2 Cir. 5/7/99), the Louisiana Court of Appeal, Second Circuit, found that the Louisiana Legislature's 1996 revisions to Articles 2323 and 2324 and the Louisiana Supreme Court's interpretation thereof overruled Veazey v. Elmwood Plantation Associates Ltd. 93-2818 (La. 11/30/94); 650 So.2d 712.
In Veazey, decided before the Legislature's 1996 amendments to Articles 2323 and 2324, the Louisiana Supreme Court held that a court could, but was not required to, compare the fault of negligent and intentional tortfeasors. 93-2818 (La. 11/30/94); 650 So.2d 712, 719. The Court found that a property management company negligently contributed to the circumstances which led to a tenant being raped in her apartment. Id. at 715. The trial court refused to instruct the jury on the allocation of fault of the nonparty rapist, and the management company appealed, alleging that the trial court committed legal error. Id. at 714. The Court said that "case-by-case analysis" should be used to determine whether the fault of negligent and intentional tortfeasors would be compared and that "public policy considerations inherent in the question of whether such a comparison should be made compel us to find . . . that such a comparison should not be made in this particular case." Id. at 719 (emphasis in original).
Plaintiffs argue that Veazey is still good law under the current versions of Louisiana Civil Code Articles 2323 and 2324, relying on the Louisiana Court of Appeal's, Fifth Circuit, decision in Posecai v. Wal-Mart Stores, Inc., 98-1013, p. 14 (La. App. 5 Cir. 3/30/99); 731 So.2d 438, 446, rev'd on other grounds 99-C-1222 (La. 11/30/99); 752 So.2d 762, which held that the 1996 amendments to Articles 2323 and 2324 did not overrule Veazey. However, the Fifth Circuit's endorsement of Veazey is of little precedential value as the Louisiana Supreme Court later reversed Posecai on other grounds. See Posecai v. Wal-Mart Stores, Inc., 99-C-1222 (La. 11/30/99); 752 So.2d 762. Plaintiffs have not provided this Court with any other precedent supporting Veazey's continued validity under the current versions of Louisiana Civil Code Articles 2323 and 2324.
This Court, like the Louisiana Courts of Appeal, First, Second, and Third Circuits, holds that under Louisiana Civil Code Articles 2323 and 2324, a court must allocate fault between all negligent and intentional tortfeasors in an action for damages. La. Civ. Code Ann. art. 2323 and 2324 (2012). As such, Plaintiffs' motion for partial summary judgment is denied.
IV. CONCLUSION
Considering the foregoing, IT IS ORDERED that the "Motion for Partial Summary Judgment" (Rec. Doc. 26) is DENIED.
New Orleans, Louisiana, this 11th day of May 2011.
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KURT D. ENGELHARDT
United States District Judge