Opinion
NO. 2022 CA 0944
04-14-2023
Kristen NUCCIO and William Borges v. CITY OF SLIDELL and Officer Nicky Mistretta
Rene Paul Frederick, Jeanne M. Mauldin, Covington, Louisiana, Attorneys for Plaintiffs/Appellants, Kristen Nuccio and William Borges Jack E. Truitt, Michelle Mayne Davis, Lauren A. Duncan, Kaylin K. Storey, Covington, Louisiana, Attorneys for Defendants/Appellees, City of Slidell and Officer Nicky Mistretta
Rene Paul Frederick, Jeanne M. Mauldin, Covington, Louisiana, Attorneys for Plaintiffs/Appellants, Kristen Nuccio and William Borges
Jack E. Truitt, Michelle Mayne Davis, Lauren A. Duncan, Kaylin K. Storey, Covington, Louisiana, Attorneys for Defendants/Appellees, City of Slidell and Officer Nicky Mistretta
BEFORE: GUIDRY, C.J., WOLFE AND MILLER, JJ.
WOLFE, J.
This is an appeal of a summary judgment dismissing the plaintiffs’ claims for damages on the basis that the defendants are immune from liability. We reverse and remand for further proceedings.
FACTS
The plaintiffs, Kristen Nuccio and William Borges, instituted this suit for damages sustained in an automobile accident on December 5, 2015. According to their original and amended petitions, Nuccio was driving her 2011 GMC Terrain westbound on I-10, near Slidell, Louisiana, at approximately 6:55 p.m., with Borges sitting in the front passenger seat. At that location, I-10 consists of three westbound lanes of travel. The plaintiffs alleged that Nuccio moved from the center to the right lane when she saw in her rearview mirror that numerous police vehicles were approaching in the left and center lanes. The plaintiffs also alleged that they witnessed a vehicle speed past them in the left lane, fleeing the following police vehicles. The plaintiffs then observed the suspect's vehicle ahead of them cross from the left lane to the right side of the interstate and surrender. As the plaintiffs continued traveling in the right lane at a reduced speed, they passed numerous police vehicles that had stopped on the right side of the interstate to apprehend the occupants in the fleeing vehicle. The plaintiffs averred that they were injured when an unmarked 2013 Dodge Ram pickup truck, driven by Captain Nicky Mistretta of the Slidell Police Department, suddenly crossed from the left lane, over the center lane, into the right lane, and collided with Nuccio's vehicle.
In their petition, the plaintiffs identified Captain Mistretta as "Officer Mistretta"; however, in his deposition, he clarified that he is a captain with the Slidell Police Department.
In their original petition, the plaintiffs alleged that Captain Mistretta was driving with his lights flashing and siren activated and may have been in pursuit of the fleeing vehicle when the accident occurred. However, in their amended petition, the plaintiffs averred that the accident occurred approximately one-half of a mile past the suspects’ stopped vehicle and that Captain Mistretta was neither involved in the police pursuit nor responding to an emergency when he crossed the two lanes of traffic and collided with them in the right lane. They claimed that immediately after the collision, Captain Mistretta told them that he had been on his way to work a security detail and was curious about what was happening alongside the interstate.
The plaintiffs named as defendants Captain Mistretta, claiming his negligence and reckless disregard for the safety of others caused the accident, and the City of Slidell, claiming it was responsible for Captain Mistretta's acts and omissions under the doctrine of respondeat superior. The defendants denied liability for the accident and asserted affirmative defenses, including immunity from liability under both La. R.S. 32:24, which applies to drivers of emergency vehicles, and La. R.S. 9:2798.1, which applies to discretionary acts of officers and employees of public entities that are performed within the course and scope of their official duties. The defendants filed two exceptions of no cause of action based on immunity, which the trial court denied. The defendants then filed a motion for summary judgment on the basis of immunity, arguing that the accident was caused solely by the plaintiff driver's failure to yield the right of way to an emergency vehicle as required by law. The trial court denied the motion for summary judgment, explaining in oral reasons that it found there were outstanding genuine issues of material fact, particularly with regard to the distance beyond the stopped police pursuit vehicles that the accident occurred.
Less than one month later, the defendants filed a "Motion to Re-Urge Summary Judgment," with a supporting memorandum and attachments that included the affidavit of the investigating police officer for the accident. The defendants argued there was no evidence to support the plaintiffs’ claim that the accident happened a half mile beyond the end of the police chase. Instead, the defendants asserted that the evidence demonstrated the accident occurred in the exact area of the police chase, as established by the affidavit of the investigating officer. The plaintiffs opposed the motion, arguing that the defendants were merely making the same arguments previously rejected by the trial court and that the genuine issues of material fact noted by the trial court in denying the prior motion for summary judgment remained. The plaintiffs additionally filed a motion to strike the defendants’ motion, contending the motion was procedurally improper and violated the law of the case doctrine.
After a hearing, the trial court denied the plaintiffs’ motion to strike and granted the defendants’ re-urged motion for summary judgment. A judgment to that effect, dismissing the plaintiffs’ claims against the defendants, was signed on October 20, 2021. The plaintiffs filed a motion for new trial, which the trial court denied. The plaintiffs now appeal.
DISCUSSION
Appellate courts review summary judgments de novo , using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Larson v. XYZ Insurance Company, 2016-0745 (La. 5/3/17), 226 So.3d 412, 416. That is, after an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Any doubt is resolved in the non-moving party's favor. The court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but to determine if there is a genuine issue of material fact. Larson, 226 So.3d at 416.
A trial court may consider a motion for summary judgment after prior motions for summary judgment on the same issue have been denied, regardless of whether the re-urged motion is based on the same or additional evidence. Alvin Fairburn & Associates, LLC v. Harris, 2020-1292 (La. App. 1st Cir. 10/4/21), 2021 WL 4551123, *3 (unpublished). This is because the denial of a motion for summary judgment is an interlocutory judgment that is appealable only when expressly provided by law and is subject to revision at any time prior to final judgment on the matter. See La. Code Civ. P. arts. 968, 1841, and 2083(C) ; VaSalle v. Wal-Mart Stores, Inc., 2001-0462 (La. 11/28/01), 801 So.2d 331, 334-35. However, each motion for summary judgment must comply with the requirements of La. Code Civ. P. art. 966. Only documents actually filed in support of or in opposition to the particular motion for summary judgment before the court may be considered in deciding that motion for summary judgment, i.e ., documents filed in support of or in opposition to a different motion for summary judgment may not be adopted by reference and considered unless they are also attached in support of or in opposition to the motion before the court. See La. Code Civ. P. art. 966(D)(2) and Comments-2015, comment (k); Brilliant National Services, Inc. v. Travelers Indemnity Company, 2021-1472 (La. App. 1st Cir. 9/7/22), 349 So.3d 606, 611 n.7 ; Tillman v. Nationwide Mutual Ins. Co., 2020-0250 (La. App. 1st Cir. 2/22/21), 321 So.3d 1017, 1022 n.5, writ denied, 2021-00429 (La. 5/25/21), 316 So.3d 446.
Contrast Alexander v. Parish of St John the Baptist , 2012-173 (La. App. 5th Cir. 10/16/12), 102 So.3d 904, 908, writ denied, 2012-2448 (La. 1/11/13), 107 So.3d 617 (stating are-urged motion for summary judgment may be granted only if the movant has supplemented the record with meaningful additions that clearly establish there is no longer an issue of material fact to be determined).
In their motion for summary judgment, the defendants asserted that they were "shielded from tort liability ... by the immunity provided to them under ... Louisiana law." Tort immunity is an affirmative defense that must be proven by the party asserting it. Aucoin v. Larpenter, 2020-0792 (La. App. 1st Cir. 4/16/21), 324 So.3d 626, 633, writ denied, 2021-00688 (La. 9/27/21), 324 So.3d 87. A party moving for summary judgment on an issue he would bear the burden of proving at trial must support his motion for summary judgment with credible evidence that would entitle him to a directed verdict if not controverted at trial. If the moving party makes such an affirmative showing, the burden of proof shifts to the opposing party to produce evidence to demonstrate the existence of a genuine issue for trial. Aucoin, 324 So.3d at 632.
Specifically, the defendants argued that they are entitled to the immunity afforded to emergency vehicles by La. R.S. 32:24 of the Louisiana Highway Regulatory Act and that recovery is precluded because the plaintiffs cannot prove Captain Mistretta's conduct constituted gross negligence or a reckless disregard for the safety of others. La. R.S. 32:24 provides:
A. The driver ... of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, ... may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver ... of an authorized emergency vehicle may do any of the following:
(1) Park or stand, irrespective of the provisions of this Chapter.
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation.
(3) Exceed the maximum speed limits so long as he does not endanger life or property.
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle ... is making use of audible or visual signals ... sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver ... of an authorized vehicle from the duty to drive ... with due regard for the safety of all persons, nor shall such provisions protect the driver ... from the consequences of his reckless disregard for the safety of others.
Under La. R.S. 32:24, if the driver of an emergency vehicle meets the requirements of Sections A, B, and C, then the driver can be held liable only if his actions rise to the level of "reckless disregard" for the safety of others, i.e., gross negligence. See Rabalais v. Nash, 2006-0999 (La. 3/9/07), 952 So.2d 653, 658. Thus, La. R.S. 32:24 does not immunize a driver of an emergency vehicle from liability if gross negligence is alleged and proven. On this issue, the plaintiffs would bear the burden of proof at trial. See Thigpen v. Lacombe, 2016-1612 (La. App. 1st Cir. 8/29/17), 226 So.3d 1138, 1148 ; Dixon v. Louisiana State Police, 2022-0013 (La. App. 4th Cir. 3/2/22), 336 So.3d 631, 638.
The difference between ordinary negligence and gross negligence is the level or degree of lack of care shown by the offending party. To amount to gross negligence, the conduct of the offender must not only show a lack of care, it must show an utter, complete, or extreme lack of care. Binkley v. Landry, 2000-1710 (La. App. 1st Cir. 9/28/01), 811 So.2d 18, 25, writ denied, 2001-2934 (La. 3/8/02), 811 So.2d 887. Gross negligence is the want of that diligence that even careless persons are accustomed to exercise, amounting to a complete neglect of the rights of others. See Lenard v. Dilley, 2001-1522 (La. 1/15/02), 805 So.2d 175, 180 ; Thigpen, 226 So.3d at 1148.
In support of their motion for summary judgment, the defendants offered pleadings previously filed by the parties, the evidence filed in support of and in opposition to the first motion for summary judgment, the transcript of the hearing on the first motion for summary judgment, and the affidavit of the investigating officer who prepared the accident report. In their own depositions, Nuccio, Borges, and Captain Mistretta each described how the accident happened.
In their opposition to the motion for summary judgment, the plaintiffs objected to the investigating officer's affidavit. The record before us on appeal does not contain the transcript of the hearing on the motion for summary judgment sub judice or a specific ruling on the objection as required by La. Code Civ. P. art, 966(D)(2). When parties have raised the trial court's failure to rule on objections to summary judgment evidence in writ applications, this court has remanded for compliance with La. Code Civ. P. art. 966(D)(2). See Reney v. Shelton Restaurant Group , LLC, 2021-1148 (La. App. 1st Cir. 12/20/21), 2021 WL 6010835 (unpublished writ action). However, in this case, the plaintiffs neither filed a writ application nor raised the issue on appeal. Therefore, we consider the objection abandoned for purposes of this appeal. Accord Lester v. BREC Foundation , 2022-0514 (La. App. 1st Cir. 11/4/22), 356 So.3d 18, 25 n.4, writ denied, 2023-00019 (La. 3/7/23), 357 So.3d 351.
By the time of their depositions, Nuccio and Borges were married. We will continue to refer to Nuccio by her maiden name to avoid confusion.
Nuccio testified that as she was driving in the center lane of the interstate, she and Borges noticed "a lot" of police vehicles and lights adjacent to the interstate on Fremaux Road. Then, as they continued driving, they noticed the police cars and lights behind them on the interstate chasing a fleeing vehicle. She explained that they saw a black Chevrolet Tahoe in the left lane approaching "really, really fast," so she moved to the right lane and slowed her speed. When the Tahoe pulled over into the far-right emergency lane to surrender, she saw the police vehicles "flying across ... diagonally to get to the Tahoe." Nuccio continued driving in the right lane, "trying to stay out of the way," and passed the Tahoe and police, who at that time had their weapons drawn. Nuccio stated that the accident with Captain Mistretta occurred after they had completely passed the vehicles stopped alongside the interstate, while Borges, who was sitting in the front passenger seat, was looking back over his left shoulder at what was happening.
Nuccio stated that she first saw Captain Mistretta's truck as it was hitting her. She estimated she was traveling at a speed of 35-40 miles per hour and denied that she was traveling 65 miles per hour as indicated on the police report. Nuccio did not recall if any other police vehicles were still traveling behind her at the time. Upon impact, the airbags deployed and Borges had to pull the steering wheel to the right to assist her in pulling over.
Nuccio could not recall lights or sirens on Captain Mistretta's truck but admitted "[t]here was a lot going on." She explained that Captain Mistretta came over to check on them, told them he was the driver of the truck, and apologized several times. Nuccio recalled that Captain Mistretta mentioned being on his way to a detail and pulling over because he was "curious."
In his deposition, Borges similarly recalled traveling westbound on I-10, headed toward Lake Pontchartrain from Slidell, and seeing a vehicle "flying past [them] on the left." He explained, "[t]hen I remember [the fleeing vehicle] swerving over to the right as [police] were kind of flying next to us. As [the fleeing vehicle] swerved over to the right, we were kind of stuck in the middle of a chase." He recalled passing the suspects’ stopped vehicle as police exited their vehicles and drew their weapons. The accident occurred as Borges was turned to look back at what was happening. Borges stated he originally thought they had been shot and it took him a moment to collect himself and assist Nuccio in pulling over. Borges denied seeing Captain Mistretta's truck while looking back at the police apprehending the suspects.
Captain Mistretta testified in his deposition that he was in the area on his way to a detail when he heard the radio broadcast about the pursuit initiated by one of his detectives. He stated that he joined the pursuit with the lights and sirens of his unmarked truck activated but allowed the marked police units to pass him and followed behind seven to eight police vehicles that were chasing the fleeing vehicle. Captain Mistretta explained that he was in the left lane "a little ways back" and saw the fleeing vehicle and police vehicles ahead of him pull over to the right side of the interstate. Intending to stop in front of and block the suspects’ vehicle in case it began moving again, Captain Mistretta began crossing to the right side of the interstate. In doing so, he went around a vehicle that was slowing and yielding to the police pursuit in the center lane. As he slowed his speed to approximately 55 miles per hour and continued crossing to the right, he made contact with Nuccio's vehicle.
Captain Mistretta testified that he looked to the right before the accident but did not see Nuccio's vehicle. He recalled that the accident happened just after he passed the vehicle that was slowing in the center lane, but was unsure of the lane in which Nuccio was traveling, explaining, "it happened really quick." Captain Mistretta speculated that Nuccio was traveling faster than him based on the way the vehicles made contact, which he described as "[a]lmost like a sideswipe," and the damage sustained to the front passenger side of his vehicle and the driver's side door of Nuccio's vehicle.
Captain Mistretta testified that the accident occurred right at the location of the pursuit, or feet beyond it. He explained that after the accident, he and Nuccio pulled their vehicles over to the side of the interstate, stopping approximately 300 feet from the police pursuit vehicles. Captain Mistretta stated that he checked on Nuccio and Borges then walked approximately 300 feet to the stopped police pursuit vehicles where the suspects from the fleeing vehicle were in custody. He confirmed that to his knowledge, no one had been placed under arrest at the time of the accident.
The defendants additionally offered the deposition testimony of Kerry Najolia, an expert in police policy, procedures, training, and emergency response pursuits. In preparation, Najolia reviewed the accident report, Slidell Police Department policies, and the depositions of the parties, and also visited the accident scene with Captain Mistretta and others. Najolia testified that under the Slidell Police Department policy guidelines, Captain Mistretta's position as a supervisor gave him the authority to pursue the fleeing suspects as he deemed appropriate to manage the situation. Najolia explained that since Captain Mistretta was driving an unmarked vehicle, it was also appropriate for Captain Mistretta to allow the marked police vehicles to proceed ahead of him. Najolia stated he reviewed recordings of the police department's radio dispatch relative to the pursuit and the "Code 4" signal, which indicated no additional units were needed for the pursuit, was broadcast before dispatch communicated that Captain Mistretta had been involved in the accident. However, Najolia explained that police policy prohibited officers from communicating their movements to the communication division until the emergency situation resolved. Najolia further testified that the timing of the "Code 4" broadcast is within the discretion of the officers involved, explaining that when the fleeing vehicle stopped, the risk to the officers and those nearby actually increased because of the potentially dangerous response of the suspects in the fleeing vehicle. Najolia stated that in general, the "Code 4" would not be broadcast until perpetrators were handcuffed and under police control.
In support of their motion for summary judgment, the defendants additionally submitted the deposition testimony of the plaintiffs’ accident reconstructionist and consultant on police procedures, Raymond Burkart, Jr., which the plaintiffs submitted in opposition to the first motion for summary judgment. Burkart testified that based on his review of the relevant documents and evidence, the police pursuit had obviously concluded before Captain Mistretta changed lanes and collided with the plaintiffs. According to Burkart, the pursuit was over once the fleeing vehicle and pursing police vehicles pulled to the side of the interstate. Burkart further stated that Captain Mistretta was not actually involved in the police chase.
Burkart opined that the cause of the accident was Captain Mistretta's improper lane usage, reasoning that Captain Mistretta should have looked in his side-view mirror before changing lanes and had he done so, he would have seen the plaintiffs’ vehicle. Burkart stated that under Louisiana law, which requires a motorist to pull to the right to yield the right-of-way to emergency vehicles, the plaintiffs were occupying the proper lane since the shoulder was being occupied by the police pursuit vehicles and the left or middle lane was occupied by Captain Mistretta's vehicle. Burkart opined that Captain Mistretta "had no reason to go into the right lane under emergency police procedures," noting "it was already dispatched prior to him reporting the accident that [the suspects] were apprehended." Burkart further opined that Captain Mistretta was not supervising the pursuit, pointing out that although he was a captain, other supervisors were there handling the situation. Burkart stated that if Captain Mistretta wanted to stop at the scene, he did not have to cut in front of traffic to cross two lanes of traffic; rather, Burkart believed Captain Mistretta should have turned off his lights and siren, slowed his speed, and changed lanes.
After de novo review of all of the summary judgment evidence, we find that even if the requirements of Sections A, B, and C of La. R.S. 32:24 are satisfied, there remain genuine issues of material fact as to whether Captain Mistretta's actions in crossing two lanes of traffic at 55 miles per hour, without ensuring that he could do so safely, constituted gross negligence. As established by Captain Mistretta's own testimony, other vehicles not involved in the police chase were traveling on the interstate amongst the police vehicles and the police pursuit quickly moved to the right side of the interstate, keeping the other vehicles from pulling over to yield the right of way. After passing one such vehicle, Captain Mistretta continued crossing the lanes of traffic at a speed of approximately 55 miles per hour and collided with the plaintiffs as he attempted to pull over ahead of the stopped police pursuit vehicles.
Immunity statutes must be strictly construed against the party claiming immunity and factual inferences must be construed in favor of the party opposing the motion. See Macro Companies, Inc. v. Dearybury Oil & Gas, Inc., 2021-00483 (La. 6/29/21), 319 So.3d 286, 287 ( per curiam ); Aucoin, 324 So.3d at 634. Furthermore, summary judgment is rarely appropriate for the disposition of issues requiring a determination of the reasonableness of acts and conduct of parties under all of the circumstances of a particular case. Jones v. Louisiana Medical Center & Heart Hospital, LLC, 2020-0551 (La. App. 1st Cir. 12/30/20), 2020 WL 7770927, *3 (unpublished). This is particularly so here, as the resolution of this case will require the weighing of evidence and evaluation of the credibility of witnesses, which are not appropriate for summary judgment. Compare Lucas v. Maison Ins. Co., 2021-1401 (La. App. 1st Cir. 12/22/22), 358 So.3d 76, 84-86.
Considering the foregoing, we find that the defendants failed to prove their entitlement to summary judgment dismissing the plaintiffs’ claims against them. For the same reasons, we find that genuine issues of material fact preclude summary judgment dismissing the plaintiffs’ claims on the alternate basis of discretionary immunity under La. R.S. 9:2798.1.
The immunity provided by La. R.S. 9:2798.1 is not applicable to defendants whose actions constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. La. R.S. 9:2798.1(C)(2) ; Simmons v. Hughes , 2019-1389 (La. App. 1st Cir 11/25/20), 316 So.3d 488, 497.
CONCLUSION
The October 20, 2021 judgment of the trial court that granted summary judgment and dismissed the plaintiffs’ claims against the defendants is reversed and this matter is remanded for further proceedings. Costs of this appeal in the amount of $7,118.20 are assessed against Captain Nicky Mistretta and the City of Slidell.