Darren Keith Shipp, individually & in his capacity as representative of the Estate of Darren Scott Shipp VS Wayne Joseph Landry and XYZ Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT C/ i( 1' NUMBER 2013 CA 1673 S' Li( if/ DARREN KEITH SHIPP, INDIVIDUALLY & IN HIS CAPACITY AS REPRESENTATIVE OF THE ESTATE OF DARREN SCOTT SHIPP C ` U 1M1 VERSUS WAYNE JOSEPH LANDRY & XYZ INSURANCE COMPANY MAY 0 2 2014 Judgment Rendered k k ` * X X k k : Fdt %' Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number C612849 The Honorable T mothy Itelley, Judge Presiding k ' iC ' X ' IC ' X ' A' ' A' ' if ' h ' iC Myron A. Walker, Jr. Counsel for Plaintiff/Appellant, Benjamin H. Bampf Darren Keith Shipp Baton Rouge, LA Darrell J. Loup Counsel for Defendant/Appellee, Baton Rouge, LA State Farm F Keith L. Richardson Counsel for Defendant/Appellee, Baton Rouge, LA Wayne Joseph Landry BEFORE; re & Casualty Company WHIPPLE, C. J., WELCH, AND CRAIN, JJ. WHIPPLE, C.J. This matter is before us on appeal by plaintiff, Darren Keith Shipp, individually, and in his capacity as representative of the Estate of Darren Scott Shipp, from a judgment of the trial court granting a motion for summary judgment filed by defendant, Wayne Joseph Landry, and dismissing plaintiff' s claims. For the reasons that follow, we reverse and remand. FACTUAL BACKGROUND On August 22, 2011, Darren Scott Shipp (" Shipp") was shot and fatally wounded by Wayne Joseph Landry while Shipp was attempting to enter Landry' s home on Blackwater Road in Baker, Louisiana. Shipp and Landry' s daughter, Alicia, had been dating for 2pproximately seven months and, for approximately four of those months, Shipp lived with Alicia and her daughter, A., in Alicia' s aparhnent. On August 22, 2011, Alicia and Shipp had an argument, and when Shipp went to sleep, Alicia went to her parent' s home " to get away" from Shipp. A. was at daycare during this time. Alicia arrived at her parents' home at approximately 330 or 4: 00 that afternoon and told Landry that her relationship with Shipp wasn' t working, that Shipp had threatened her, and that she needed Landry' s help to get her out of from daycare. there." A while later, Landry and Alicia went to pick up A. Alicia was driving her vehicle and, on the way to the daycare facility, the two stopped at a Cracker Barrel to put gas in her car. While Alicia was putting fuel in the vehicle and Landry was inside the gas station, Shipp pulled up in his truck and parked perpendicular in front of Alicia' s vehicle. As Landry exited the gas station and returned to the car, Shipp and Alicia were arguing, and Shipp was " corralling" her, with his back to Landry. Landry told Alicia to get in A. was approximately one year old at this time. 2 the car, and Shipp turned and came t ward Landry in what Landry claimed was a threatening manner, with his fist clinched. Shipp began threatening and " cussing" at Landry, jaw." calling him a" and threatened " Pll break your f------ M----- F-----" Landry, who holds a Louisiana concealed carry permit, drew his pistol. At that point, Shipp returned to his vehicle, which Alicia had gotten into, and he and Alicia left the scene? Landry then returned ?o Alicia' s vehicle, put the weapon down and attempted to call 911; however, he was unable to operate the cell phone, which his wife had just bought him a couple of days earlier. Landry, who was " a little bit shaken" then attempted to drive off not realizing that the fuel pump was still in the vehicle. After the hose popped off, he went inside the gas station and advised the clerk that he would pay for any damages and left his name and information with the clerk. When Landry got home, Alicia and Shipp arrived right behind him. Alicia asked Landry Landry, to " come here," and ran at and Shipp e ted his vehicle, began threatening ecording to Landry' s deposition testimony, Alicia Landry. handed Landry the baby, Landry brought the baby inside, and after Landry put A. down, Shipp " came at him again" with his fists clinched up from his side. Landry then pulled his weapon Landry, " shoot me on m----- Shipp. Shipp came to Landry, but stopped, telling f-----, that gun ain' t gonna do nothing but piss me off." Landry stepped inside the patio and told Shipp that he was not welcome at his home any more and that he was calling the sheriff's department to let them know what had happened. Shipp and Alicia then left together. Landry called 911 and a deputy was dispatched to his home. Landry reported the two incidents to the deputy and asked the deputy to advise Shipp not to return to his home. The deputy advised that he was going to try to speak to ZLandry claimed that at the time, he was unaware that Shipp had picked up A. from daycare and that A. was in Shipp' s truck. 3 Alicia at her apartment later that day. However, befare the deputy had a chance tQ do so, Shipp and Alicia retumed to Landry' s home, At the time, Landry, his wife, and their twenty-five year old niece were sitting in an enclosed patio on the side of Landry' s home that leads to the inner door of the home, playing with A. As soon as Shipp and Alicia arrived, Alicia exited the truck and, along with the others who had been sitting in the enclosed patio, immediately went inside the home, while Shipp remained in his tnzck. Landry asked the ladies to go lock themselves in the computer room, which was formerly a bed room, while he went into his bedroom to call 911. Landry advised the 911 operator that Shipp was on his property, and asked them to dispatch a depu cy to his residence. As Landry hung up the phone, he realized that Shipp had entered into the patio through the patio door and was in the enclosed patio, banging on the interior door of the home and yelling far Alicia. According to Landry, he stood in the hallway around the corner, out of 5hipp' s line of sight, and was waiting far the police to arrive. Landry testified he heard Shipp' s voice get louder and the door open. Landry stepped out from the hallway and saw Shipp standing in the doorway. Shipp began " cussing" him and rocking back and forth with his fists up in a threatening manner, while acting very agitated. Landry, who drew his pistol when he stEpped into plain view of Shipp, testified he told Shipp several times, " Do not come in my home. Do not come in my home. Whatever you do, do not come in my home." Landry claimed he was seven or eight feet from Shipp at the time, and that he told Shipp to Ieave and that the police were on the way. However, Shipp responded that he " could do whatever he wanted" and, according to Landry, then began to enter the Landry home. As Shipp stepped on the threshold to enter the home, Landry shot him once with his pistoL Landry waited inside the home, with 4 his pistol aimed at Shipp, until the police arrived3 Shipp died as a result of the gunshot wound. PROCEDURAL HISTORY On June 12, 2012, Shipp' s father, Darren Keith Shipp, individually, and in his capacity as representative of the Estate of Darren Scott Shipp (" plaintiff'), filed a petition for damages, including w rongful death and survivor' s damages, physical, einotional, and mental damages, and funeral expenses, against Landry and his homeowners' insurer, State Farm Fire Farm"). and Casualty Company (" State State Farm answered the petition, setting forth several affirmative defenses. Thereafter, Landry filed a motion for summary judgment. In his motion for summary judgment, Landry contended that he is immune from any civil liability arising from this incident pursuant to LSA-R.S. 9: 2800. 19, thereby entitling him to summary judgment and a dismissal of plaintiff's claims against him. In support of his motion for swmmary judgment, Landry attached the petition for damages ( E Exhibit B with ibit A); his affidavit and a photograph of compact discs Attachments 1 & 2); the affida it of fllicia Landry ( E and photographs of the scene of the shooting ( labeled as ibit C), Attachments 3 & 4). Plaintiff opposed the motion for summary judgment, contending that genuine issues of mat rial fact remain as to whether Landry acted reasonably in using deadly force. In support, plaintiff attached excerpts of the deposition testimony of Wayne Landry ( E Alicia Landry ( E ibit A); excerpts of the deposition testimony of ibit B); the affidavit of Dr. Alfredo Suarez ( E ibit C) and photographs of the crime scene. The trial court heard the matter on May 20, 2012.' After reviewing the evidence submitted in support of and in opposition to the motion for summary 3Landry acknowledged that he was subsequently arrested and charged with second degree murder. However, after submission to a grand jury, the jury declined to return an indictment against Landry. 5 judgment and hearing argument by the parties, the tria] court granted Landry' s motion for summary judgment. A judgnlent conforming to same and dismissing all of plaintiff' s claims against defendant Landry with prejudice was signed by the trial court on July 9, 2013. Plaintiff filed the instant appeal, contending that the trial c urt erred in ganting Landry' s motion for summary judgment wher: ( 1) genuine issues of material fact exist as to whether Landry' s decision to use deadly force on August 22, 2011 was justified; and ( 2) the swom e ert opinion of Dr. Alfredo Suarez conceming the physical evidence of the bullet wound on Shipp' s body contradicts Landry' s testimony concerning the distance between Landry and Shipp at the time the shot was fired, thereby presenting a genuine issue of material fact as to whether Landry was justified in using deadly force against Shipp. DISCUSSION Summary Judgment A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, adinitted far purposes of the motion for summary judgment, show that there is no genuin issue as to material fact, and that mover is entitled to judgment as a matter of law. LSA-GC.P. remains with the movant. art. 966(B)( 2). The burden of proof However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather tQ During the heazing, the trial court allowed counsel far Landry to supplement the exhibits admitted in support of the motion for summary judgment with the entire deposifion of Wayne Landry. SAlthough the judgment dismissing all of plaintifPs claims against Landry was certified as a final judgment for purposes of appeal, such certification was unnecessary where the judgment was appealable undex LSA-C.C. P. art. 1915( A)( 3). 6 point out to the court that there is an absence of faatual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)( 2). In ruling on a motion for summary judgment, the trial court' s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Baldwin v. Board of Supervisors for University of Louisiana Svstem, 2013- 0602 ( La. App. 1 S` So. 3d _ Cir. 2/ 7/ 14), In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Suire v. Lafavette Citv-Parish Consolidated Government, 2004- 1459 ( La. 4/ 12/ OS), 907 So. 2d 37, 48. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 2005- 1233 ( La. App. lst Cir. 6/ 9/ 06), 938 So. 2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in fa or of trial on the merits. Fernandez v. Hebert, 2006- 1558 ( La. App. lSt Cir. 5/ 4/ 07), 961 So. 2d 404, 408, writ denied, 2007- 1123 ( La. 9/ 21107), 964 So. 2d 333. Appellate courts review summary ludgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Honor v. Tan pahoa Parish School Board, 2013- 0298 ( La. App. 1` Cir. 11/ 1/ 13), _ So. 3d writ denied, 2014- 0008 ( La. 2/ 28/ 14), So. 2d Because it is the applicable substantive law that determines materialiry, whether a particular fact in dispute is " material" for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Guardia v. 7 Lakeview Regional Medical Center, 2008- 1369 ( La. f1pp. ls` Cir. 5/ 8/ 091, 13 So. 3d 625, 628. Applicable Law In 2006, LSA- R. S. 9: 2800. 19 vas enacted by- Acts 2006, No. 786, § 1 and LSA-R.S. 14: I9 and 14: 2U were su stanYially amended and reenacted by Acts 2006, No. 141, § 1. Section 2 of Act Nu. 786 provided that the provisions of that Act shall take effect and become effective " if and when" Act 141 was enacted into law and became effective. Both were enacted into law and became effective on August 15th, 2006, the general effective date of the 2006 Regular Session. Accordingly, we construe these statutes inpari materia. Louisiana Revised Statute 9: 2800. 19 provides immunity from civil action to those who use " reasonable and apparently necessary" or deadly force or violence in preventing a forcible offense against the person or his property in accordance with LSA-R.S. 14: 19 or LSA-R.S. 14: 20, as follows: A. A person who uses reasonable and apparently necessary or deadly force or violence for the purpose of preventing a forcible offense against the person or his property in accordance with R.S. 14: 19 or 20 is immune from civil action for the use of reasonable and apparently necessary ar deadly force or vialence. B. The court shall award reasonable attorney fees, court costs, compensation for loss of ineome, and all expenses to the defendant in any civil action if the court fmds that the defendant is immune from suit in accordance wit1 Subsection A of this Section. Louisiana Revised Statute 9: 2800. 19 refers to LSA-R.S. 14: i9, pertaining to the use of force or violence in defense where such use does not result in a homicide, and LSA-R.S. 14: 20, the justifiable homicide statute, to determine whether a defendant in a civil case used reasonable force in defense of a person or property. Louisiana Revised Statute 14: 20( A) sets forth situations in which a homicide may be justifiable, depending on the reasonable belief of the person using force or violence in defense, the danger presented to that person or others, 8 and the need for the use of deadly force. Loursiana Revised Statute 14 20(A), in pertinent part, provides as foll ws: A. A homicide is justifiable= When committed ir. self-defense by one who reasonably believes that he is in imminent danger ot losing his life or 1) receiving great bodily harrrz and that th killing is necessary te save himself from that danger. 4)( a) When committed by a person lawfully inside a dwelling ... against a person who is attempting to mak an anlawful entry into the dwelling ... or who has made an unlawf' l eritry into the u dwelling ... and the person committing the hamicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premAses. Louisiana Revised St tute 14: 20(B} provides for a presumption as to the existence of a reasonable belief that the use of deadly force was necessary in certain circumstances. The presumption set forth in LSA-R.S. 14: 2( B), as well as Sections C and D of LSA-R.S. 14: 20, were enacted in 2006 along with the enactment of LSA-R.S. 9: 2800. 19,6 and provide as follows: B. For the purposes of this Section, there shall be a presumption lawfully inside dwelling ... held a reasonable belief that the use of deadly force was necessary to prevent unlawful that a person entry thereto, or to compel an unlawful intruder to leave the premises ... if both of the following occur: 1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling ... 2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry ivas occurring or had occurred. C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force. 6See Acts 2006, No. 786, §§ 1 and 2 and 9 Acts 2006, No. 141, § I. D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining vvhether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or farcible felony involving life or great bo ily harm or to prevent the unlawful entry. With the enactment of Sections C and D, the legislature has curtailed the evidence that may be offered by the State in a criminal proceeding in proving the use of force unreasonable, rnd specifically has forbidden the consideration of the possibility of retreat vis- a-vis the use of force. This represents a change in the law, which formerly allowed the consideration of the possibility of escape.' State v. Ingram, 45, 546 ( La. App. 2` d Cir. 6/ 22/ llj, 71 So. 3d 437, 445, writ denied, 20ll- 1630 ( La. 1/ 11i12), 77 So. 3d 947. Moreover, although Section B states there " shall" be a presumption of reasonableness, the statute does not state that the presurription is irrebuttable 8 State v. In ram, 71 So. 3d at 444. The general construction of these overlaid criminal and civil statutes is such that if reasonable and apparently necessary ar deadly force or vYOlence is used for the purpose of preventing a forcible offense against a person or his property in accordance vith LSA-R.S. 14: 20, the immunity provisions of LSAR.S. 9: 2800. 19 are triggered, thereby relieving the person who used uch deadly Tl rough the presumption; the law recognizes thai forcible entry situations often develop quickly and may present a threat of harm that allows little time for a homaowner to carefully weigh his options in defending himsel£ As Justice Holmes famously stated in a related context, " Detached xeflection canziot be demanded in the presence of an uplifted knife." State v. In¢ram, 71 So. 3d at 444- 445 quoting Brown v. United States, 256 U. S. 335, 343, 41 S. Ct. 501, 502, 65 L.Fd 961 ( 1921). 8In State v. Ing am, 71 So. 3d at 444, the court held: Although the legislature has the power to expand the justifiable homicide defense to conclusively declare the use of deadly force reasonable in every case of unauthorized entry, it has not done so. Instead, the legislature clarified and expanded the " reasonable and necessary" requirement in La. R.S. 14; 20( A) with the use of the " presumprion" language in La. R.S. 14: 20( B). 10 farce from civil action for his use of such rEasonable and apparently necessary or deadly force or violence. In the instant matter, Landry c ntends that the elements of the immunity statute, LSA-R. S. 9: 2800. Z9, as incorporated by refer nce to I, SA- R. S. ? 4: 20, are met in this case under aither LSA-R.S. 14. 20(Aj(1) ( i.e., Lanc ry reasonably believed thai he was in irnminent danger ef lesing his life or rec2aving great bodily harm, and that he believed that the force he used was apparently necessary to save himself from that danger) or LSA-R,S. 14: 20( A)(4)( a) ( i.e., Landry was lawfully inside his dwelling, and Shipp was attempting to make an unlawful entry into the dwelling or had already made an unlawful entry into the dwelling, and Landry reasonably believed that the use of deadly force was necessary to prevent the entry or to compel Shipp tn leave the premises). Landry concedes that wh.ile the scenario presented under LSA-R.S. 14: 20 A)( 1) raises the issue of whether L.andry reasonably believed that he was in imminent danger" of death or " great bodily iarm," a nder the second scenario set forth in LSA-R.S. 14: 20( A)(4)( a) invol- ing Landry being lawfally in his dwelling, no inquiry is needed concemirig Landry' s apprehenaion because of the presumption set forth in Section B. Instead, Landry contends, under Section B, a presumption will apply that Landry, who was lawfully in his home, held a reasonable belief that the use of deadly force was necessary to prevent Shipp' s unlawful entry or to compel Shipp to leave the premises if: 1) Shipp was in the process of nnlawfully and forcibly entering the dwelling, or had already done so; and 2) Landry knew or had a reason to believe that Shipp was unlawfully and forcibly entering the dwelling, or such that an entry had occurred. Landry contends that he met his burden of showing on summary judgment that these elements are " easily" met, giving rise to the presumption, thus meeting 11 the elements of LSA-R. S. 14: 20. Accordingly, he contends, the civil iinmunity pursuant to LSA-R.S. 9: 2800. 19 applies herein t defeat plaintif£s claims. In support of his motion for summary judgment, Landry offered his affida it and that of his daughter, Alicia Landry, as well as Landry' s deposition testimony. Landry testified that Shipp was banging on the door of his home after Landry had wamed Shipp to get off of his property several times. Landry testified that Shipp then opened the door to his home, whereupoxi Landry again told Shipp to leave and that the police were on the way. Landry stated that he was 5' 9" tall and weigl ed 145 pounds, while Shipp was twenty-three years old, was approximately 6 feet tall, and weighed approximately 190 pounds. Landry stated that he feared Shipp, and believed that if Shipp entered the home, he would act violently toward Landry and his family and that he and his family were in danger. Landry conceded that prior to this day, there were no hostile exchanges and that he and Shipp had been cordial toward each other. However, Landry stated that on the day of the incidents herein, he felt he and his family were in danger where Shipp stood rocking back and forth with his fist clinched, and where, prior to that, Shipp was beating on Landry' s door " like crazy' 9 and yelling. Landry stated that Shipp' s veins were " popping out in his neck," his eyes were " bulging out," that he was threatening Landry and " cussing" at him, and that he was " pretty scared." Landry claimed that Shipp " stepped forvs ard" with his fists clenched and started to come in after Landry warned him several times. Hoivever, Landry conceded that while curse words were spoken by Shipp, he saw Shipp was only holding a cell phone and did not see a weapon prior to Landry shooting him. Landry claimed that the difference between this encounter and the two encounters earlier that day was that instead of backing up, Shipp told him that he would do what he wanted and " stepped forward and continued" toward Landry. Landry claimed that he was at the end where he could not back up any mare, that Shipp was 12 approximately seven to eight feet from him, and he " was afraid Shipp was going to attack [them], so he stopped him." Alicia stated that while in the computer room, none of them knew what was going to happen or what Sh:pp was going to do. She described Shipp as " wishy washy" that day, going " up and down, up and down,'' and that he " went crazy." Alicia stated that while in the computer room, she h ard Shipp yelling for her and her dad telling Shipp to get off of his property. Plaintiff opposed tYae motion for summary judgment, contending that summary judgment was impropex because genuine issues of fact exist as to whether Landry' s decision to use deadly force on August 22, 2011 was reasonable and justified. Plaintiff contends that even if the presumption applies, the ultimate question that must be resolved by a factfinder is whether the force was reasonable 9 and apparently necessary. Nonetheless, in opposiYion to Landry' s motion for summary judgment, plaintiff offered excerpts of the deposition testimony of Wayne Landry, excerpts of the deposition tesYimony of Alicia Landry; the affidavit of Dr. Al£redo Suarez, and photographs of the crime scen. e. In particular, plaintiff points to Alicia' s deposition testimany that she asked Shipp to bring her to her parents' home. Alicia stated, " At first he said he wasn' t going a take me, so I said I wauld walk, and he didn' t want me to walk so he took me." Piaintiff argues that this testimony alone raises an issue of the applicabzlity of the immunity statute, where questions of fact remain as to whether Shipp was invited by Alicia to the Landry home prior to the shooting. Plaintiff further contends that even if Shipp was yelling far Alicia while banging on the door and trying to get into the house, it was unreasonable for 9In support, however, plaintiff relies on State in Yhe ?nterest of D,P.B., 2002- 1742 ( La. 5%20/ 03), 846 So. 2d 753, a criminal case rendered prior to the substantial amendments and reenachnent of LSA-R.S. 14: 20 and the enactment of LSA-R.S. 9: 280019 in 2006. Thus, we find the case unperswasive herein. 13 Landry to expect that any harm would come his way or that tfie use of deadly force was proper. Plaintiff further contends that the Dr. Suarez' s affidavit creates a genuine issue of material fact, wfiere Landry testified that he only fired the gun. when he was approximately seven to eight feet from Shipp, while Dr. Suarez stated that after examining crime scene photographs prov'rded by the East Baton Rouge Sheriff' s Office, the shot was instead actually fired from a distance commonly known as the " contact range." I r. Suarez stated that " contact range" means that the barrel of the gun was touching Shipp' s skin when the shot was fired. Plaintiff contends that Dr. Suarez' s opinion iiicewise creates a genuine issue of material fact precluding summary jud ment because it raises the issue of whether Landry was justified or acted reasonably under th.e circumstances in using deadly force. We agree. 10 On review, we find that there is a enuine issue of material fact as to whether or not Landry' s use of deadly force was reasonable under all of the circumstances of this case which precludes the entry of summary judgment in Landry' s favor. Specifically, we find that the followiug facts raise a genuine issue as to whether Landry could have held a reas nable belief that the use of IoWe fizrther note that in order for the LSA-R.S. 1420(B) presumption to apply herein, Landry was required to show that Shipp was in the process of ` unlawfully and forcibly entering" and that Landry knew or had reason to believe that an " unlawful and forcible enhy" was occurring. LSA- R. S 14: 20( B)( 1) and ( 2)( emphasis added). forcible entry" is not defined ixi LSA- R. S. 14: 20, " forcibie" is gerrerally ffected by force or threat of force h Dictionary 657 ( 7` ed. 1999). Landry e] against opposition or resistance." Although defined as Black' s Law teatified that the door from the patio to the home interior was closed. He stated that if the door had even been slightly ajar, in his opinion, it would have flown open long before with the severiTy of Shipp' s beating on the door, while calling for Alicia. Landry testified, howevzr, that he did not know and was unable to say whether the door Shipp entered was locked or unlocked. While he thought that the deadbolt on the door was not locked, he did not know if the doarknob lock was engaged. Landry stated that he heard a door open and then stepped into the hall with his gun drawn. Thus, based on the evidence presented on summary udgment, while Landry may have established that Shipp' s entry was unlawful, a question of mate; ial fact also remains as to whether Landry established that Shipp' s entry was " forcible" under the facts developed thus faz. Louisiana Revised Statute 14: 20( B) requires that the entry be unlawful and forcible to apply the presumption of reasonableness giving rise to civil immunity. 14 deadly force was necessary, including: ( 1) the two had a cardial relationship priar to this day; ( 2) Landry knew that Shipp was unarmed before he shot him; 3) Landry had called police and was awaxe hat they were on the way; ( 4) in the two earlier encounters that dap, m rely brandishing the weapon was sufficient to cause Shipp to back away; and ( 5) there is expert opinion ev?dence that the barrel of the gun was touching Shipp' s skin when the shot was fired, calling into question the credibility of Landri' s verszon of the events, Pretermitting whether plaintiff can ultirr ately prevail on the merits, we are constrained to find that questions of fact remain, which preclude summary judgment, as these determinations inevi bly involve a weighing of evidence and testimony, which is reserved for a determination by the trier of fact. Accordingly, the summary judgment dismissing all claims against Landry, with prejudice, must be reversed. Bec use we find these urixesolved issues preclude summary judgment, we pretermit discussion of plaintiffs remaining assignments of error. C NCLUSION For the above and foregoing reasons, tlAe Jul.y 9, 2013 iudgment oi the trial court is hereby reversed and this matterr is remanded for further proceedings. Costs of this appeal are assessed to the defendanu' ppellee, VVayne Joseph Landry. REVERSED AND REN' VDED, 15
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