Opinion
2021 CA 0702
04-06-2022
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 The State of Louisiana, Through the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice
Donald D. Reichert, Jr., Joseph M. Bruno, New Orleans, Louisiana, Counsel for Appellants Plaintiffs—Louise C. Carman, individually, and on behalf of her son, Nicholas Robert Carman (D) Robert T. Myers, Metairie, Louisiana, Counsel for Appellees Defendants—AMIkids Acadiana, Inc. Amy Lawler Gonzales, Ashley M. Caruso, James L. Hilbum, Baton Rouge, Louisiana and Jabrina Edwards, Shreveport, Louisiana, Counsel For Appellees Defendants—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 the State of Louisiana, through the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice
Donald D. Reichert, Jr., Joseph M. Bruno, New Orleans, Louisiana, Counsel for Appellants Plaintiffs—Louise C. Carman, individually, and on behalf of her son, Nicholas Robert Carman (D)
Robert T. Myers, Metairie, Louisiana, Counsel for Appellees Defendants—AMIkids Acadiana, Inc.
Amy Lawler Gonzales, Ashley M. Caruso, James L. Hilbum, Baton Rouge, Louisiana and Jabrina Edwards, Shreveport, Louisiana, Counsel For Appellees Defendants—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 the State of Louisiana, through the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
WELCH, J.
In this companion appeal to Louise C. Carman v. Dr. Mary Livers, et al., 2021-0701 (La. App. 1st Cir. 04/06/22) 341 So. 3d 749, the plaintiff, Louise C. Carman, individually and on behalf of her son, Nicholas Robert Carman, appeals a summary judgment granted in favor of the 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 ("OJJ" and collectively "the State"), which dismissed her action for wrongful death and survival damages. We affirm in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.2(A)(2), (5), and (6).
The factual and procedural history of this case is fully set forth in Louise C. Carman, 2021-0701, 341 So.3d at 753–57. Essentially, the plaintiffs son was killed by a juvenile, who had been adjudicated delinquent and placed into the custody of OJJ. The juvenile's initial commitment to secure custody had recently been modified to non-secure custody, and in accordance therewith, he was placed at AMIkids Acadiana, Inc. ("AMIkids"). Approximately one month after the juvenile was at AMIkids, the juvenile was temporarily released to the custody of his aunt on a home pass for the Thanksgiving 2014 holiday, which was done pursuant to OJJ's Standard Operating Procedures For Non-Secure Care ("SOP"). Through a series of unusual facts, circumstances, interactions, and events, which are set forth in detail in Louise C. Carman, 2021-0701, 341 So.3d at753–56, the juvenile met the plaintiff's son, and after a third person instigated a fight between the two, the juvenile killed the plaintiff's son.
The plaintiff then instituted an action for damages against the State and AMIkids. Both the State and AMIkids subsequently filed motions for summary judgment, and the trial court granted both motions on the basis that the plaintiff failed to offer sufficient evidence establishing that either AMIkids or the State breached any duty relative to the home pass. The trial court also found that the events that led to the death of the plaintiff's son were not foreseeable.
The trial court also 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 the juvenile a home pass. However, because the trial court had already granted summary judgment on liability, there was no need to address the State's affirmative defense of discretionary immunity, and for the same reason, we decline to address that issue herein. In the companion appeal, Louise C. Carman, 2021-0701, 341 So.3d at 757 n.6, we specifically declined to address the trial court's erroneous inclusion of AMIkids within that affirmative defense on the same basis.
The appeal in Louise C. Carman, 2021-0701, 341 So.3d at 757, involved the February 8, 2021 judgment of the trial court in favor of AMIkids, whereas the instant appeal involves the February 9, 2021 judgment of the trial court, which granted summary judgment in favor of the State and dismissed the plaintiff's claims against the State, with prejudice. In Louise C. Carman, 2021-0701, 341 So.3d at 765, we affirmed the trial court's judgment, after concluding that there were no genuine issues of material facts that AMIkids did not breach any duty to plaintiff and that any breach of the duty that might possibly be found was not the legal cause of the plaintiff's son's death or the plaintiff's injuries.
For the same reasons set forth in detail in Louise C. Carman , 2021-0701, 341 So.3d at 757–65, we likewise conclude in this case that the plaintiff failed to set forth factual support sufficient to establish a genuine issue of material fact as to whether the State 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 plaintiffs injuries. Accordingly, the trial court correctly granted summary judgment in favor of the State and dismissed the plaintiff's claims against the State.
Therefore, the February 9, 2021 judgment of the trial court granting the motion for summary judgment filed by the State and dismissing the claims of Louise C. Carman, individually and on behalf of her son, Nicholas Robert Carman, against 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, is affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Louise C. Carman, individually and on behalf of her son, Nicholas Carman.
AFFIRMED.
McCLENDON J., CONCURS WITH REASONS
McClendon, J., concurs.
Regardless of any act or failure to act on the part of the State, finding the events leading to the tragic death of Nicholas Robert Carman to be unforeseeable, I concur in the result reached by the majority.