Kris Catania, individually and on behalf of her minor daughter, Halayna Catania, and Haley Catania VS Sheriff Jack Stephens and the St. Bernard Parish Sheriff's Office (2014CA1294 Consolidated With 2014CA1295)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014CA1294 KRIS CATANIA, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, HALAYNA CATANIA, AND HALEY CATANIA VERSUS SHERIFF JACK STEPHENS AND THE ST. BERNARD PARISH SHERIFF'S OFFICE CONSOLIDATED WITH NO. 2014 CA 1295 MICHAEL VINCENT CATANIA, JR. AND BRITTANY LYNN CATANIA VERSUS· SHERIFF JACK STEPHENS AND THE ST. BERNARD PARISH SHERIFF'S OFFICE 1 Judgment rendered March 17, 2015. ****** Appealed from the 18th Judicial District Court in and for the Parish of Iberville, Louisiana Trial Court Nos. 69630 and 70493 Honorable James J. Best, Judge ****** 1 The caption of this appeal reflects a consolidation of two separate suits at the trial court level. The suits remain consolidated on appeal. The only issues before this court arise out of the trial court's judgments granting summary judgment in favor of defendants and denying plaintiffs' cross motions for summary judgment. These two judgments were both appealed, and each judgment was assigned a separate appeal number by this court. See Kris Catania, Individually and on behalf of her minor daughter, Halayna ~ Catania, and Haley Catania v. Sheriff Jack Stephens and The St. Bernard Parish Sheriff's Office, 2014-1292 (La. App. 1 Cir. 3/17/15) (unpublished opinion) c/w Michael Vincent Catania, Jr. and Brittany Lynn Catania v. Sheriff Jack Stephens and The St, Bernard Parish Sheriff's Office, 20141293 (La. App. 1 Cir. 3/17/15) (unpublished opinion) (Catania I) (also decided this date), w..u9. ~..:.. ~ MARK L. ROSS LAFAYETTE, LA ATTORNEY FOR PLAINTIFFS-1ST APPELLANTS KRIS CATANIA, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, HALAYNA CATANIA, AND HALEY CATANIA A. SCOTT TILLERY METAIRIE, LA ATTORNEY FOR PLAINTIFFS-2ND APPELLANTS MICHAEL VINCENT CATANIA, JR. AND BRITTANY LYNN CATANIA MARY ANN HAND SALVADOR E. GUTIERREZ, JR. CHALMETTE, LA ATTORNEYS FOR DEFENDANTS-APPELLEES SHERIFF JACK STEPHENS, THE ST. BERNARD PARISH SHERIFF'S OFFICE, AND THE PRINCETON EXCESS & SURPLUS LINES INSURANCE COMPANY ****** BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. . .. 2 ' ~· ; ,' \ - ----------------- PETTIGREW, J. Plaintiffs appeal the trial court's judgment granting summary judgment in favor of defendants and dismissing, with prejudice, their claims against defendants. For the reasons that follow, we amend in part and affirm. FACTS AND PROCEDURAL HISTORY Michael Catania, the deceased husband of plaintiff, Kris Catania, had previously been married to Dorinda Catania, a St Bernard Parish resident. At all times pertinent hereto, Michael was a resident of Iberville Parish. Following his divorce from Dorinda, Michael's child support obligation was court ordered. When Michael fell into arrears on his child support payments, Dorinda initiated charges against him in St. Bernard Parish for criminal neglect of family. On September 2, 2009, Dorinda executed an affidavit for an arrest warrant for Michael. Both the affidavit and the subsequent arrest warrant were signed by Justice of the Peace Howard Luna. According to Dorinda, she faxed th~ affidavit to Deputy Maria Small of the Iberville Parish Sheriff's Office ("IPSO"), and Deputy Small advised her that the affidavit was not sufficient to arrest Michael. Rather, Deputy Small told her that the St. Bernard Parish Sheriff's Office ("SBPSO") would need to fax the warrant to her. Dorinda testified that SBPSO confirmed with her that they were sending a copy of the warrant to IPSO. On September 22, 2009, Michael surrendered himself in St. Bernard Parish, where he was arrested and incarcerated in the St. Bernard Parish jail. On September 23, 2009, SBPSO marked the warrant satisfied in its ARMMS system. Michael remained incarcerated until January 14, 2010, when he pied guilty to the charges and was sentenced to 6 months in parish prison, suspended, and placed on unsupervised probation, with certain conditions, including a sentence of 114 days in parish prison with credit for time served. On July 3, 2010, Michael committed suicide. Deputy Small, a 25-year employee of IPSO, testified that she is the Chief Criminal Deputy Secretary and has been in charge of the Warrants Division for approximately 17 years. According to Deputy Small, she received the warrant for Michael's arrest on September 21, 2009, and entered it into her computer as an active warrant on the same 3 day. Subsequently, when Deputy Small learned that Michael was deceased, she contacted SBPSO to advise them of Michael's death. Deputy Small spoke with Kathy Bayham and advised her that IPSO would be recalling the warrant from their system. Deputy Small recalled the warrant on July 61' 2010. Deputy Small indicated that the normal recall procedure for warrants was that the issuing sheriffs office would either call or fax with notice that the warrant was to be recalled. Deputy Small explained further: Q. So it's your testimony that the only time that you would recall a warrant is when some parish calls you to tell you that it's been satisfied? A. They can fax me something or they can call me. Q. Should, in your opinion, in your 25 years of experience, should the St. Bernard Parish Sheriffs Office, when a Wqrrant is satisfied, call every sheriff in the state of Louisiana and tell them that A. If they sent it -- Q. -- or fax it to them? A. If they sent it to every parish in the state of Louisiana, they should. That's how I do my warrants, I have something attached that wherever I sent it to and if it's recalled, I recall it from all of the parishes that I sent it to. Deputy Small testified that she had no knowledge of when or even if Michael was ever arrested in St. Bernard Parish. When shown a computer printout from SBPSO's ARMMS system reflecting Michael's warrant "SATISFIED BY ARREST" as of September 23, 2009, Deputy Small indicated that she would have expected to be notified by either phone or fax that Michael's warrant was satisfied. Deputy Small did note, however, that while both IPSO and SBPSO each have an ARMMS system, the two were not connected, In a sworn affidavit, Colonel Peter Tufaro, the commander/supervisor of the Criminal Records Division of SBPSO, confirmed that there is no connection between the ARMMS system in St Bernard and the ARMMS system in Iberville. Colonel Tufaro further noted that the warrant issued by Justice of the Peace Luna on September 3, 2009, for Michael's arrest was not entered into the NCIC system by SBPSO. Finally, Colonel Tufaro explained that he conducted a search of the records maintained by SBPSO and was 4 unable to locate any record indicating. th.at any employee of SBPSO notified IPSO of the warrant issued by Justice of the Peace Luna for fvlichael's arrest on September 3, 2009. Deputy Kathy Bayham indicated that she started working tor SBPSO 5 years ago. She handles the daily operations of the Crimmal Records Division. With regard to warrants, Deputy Bayham testified that she was involved with every aspect, the warrants into ARMMS, issuing the le., entering warrantsr and recalling warrants. When asked about the communication. between SBPSO. and ·IPSO, concerning the status of the arrest warrant following Michael's incarceration, the following colloquy occurred: Q. I will follow up on what Mr.· Tillery' was doing. I. think we agree that when St Bernard Parish entered irito its [ARMMS] System the arrest warrant for Mr. Catania that in.· and of itself. entering into the [ARM MS] System would not have told any other sheriffs office that an arrest warrant existed. They have to. ask or find out some other way? A. Correct. Q. You are speculating a little bit and 1 understand .that. You were not there. One way or another the St. Bernard Parish Sheriffs Office faxed a physical copy of the arrest warrant atsomebody1s request? . A. Correct. Q. To Iberville Parish? A. Uh-huh (affirmative response.) Q. Now, what would prevent St Bernard, your criminal records section from noting in the [ARMMS] entry or any other records your department thinks would be reliable a note to the [effect] .... be sure to get back with them if or when it is satisfied? What would stop that from happening? That is just noting we faxed a physical copy of the arrest warrant to another parish; be sure to get back to. th~r,n whe.n it is. satisfied? A. We faxed _them a warrant to .be. honest with you. If you faxed them an open warrant and they offered information, why wouldn't they call months later to see if the warrant was still good? That is what I would do if the shoe was on the other foot. I would never arrest anybody ... without finding out if this warrant from a few months, next year, or last year, or 10 years from now -- we go through that a lot. You might have a warrant for 10 years. You have got ~- the only safe way ... to avoid human error is to check with [the other] agency to see if it is still good. Q. Is there anything that would keep the St Bernard Parish Sheriffs Office from making a note in the -- sounds iike relatively few instances -when an arrest warrant is ,.. actually sent to another sheriff's office to note that be sure to give Iberville a cali if this is deemed satisfied; let them know? 5 . ' A. There is nothing to prevent us from that says we should .do that Q. ' ·doi~g . that but there is nothing This is why I asked? A. Nobody does it for us e!ther You know, I can understand why. That is a lot of people you are dealmg with: . Tht.~re [are] a lot of people and parishes. We have not had a prob~em tnat I.know ot We will give you any information you want. All you have to' do is call 24/7, Not a traumatic event;.j~st 'sorty~ sir, turn around .. We will have to handcuff you and we will take you down. .tO .the stati6n~ · It' is found out that it is not valid, that would still seen:i- even. irtthose circumstances to be a real unpleasant event· if. it was· unnecess:arv and it. would seem that it is not a huge barrier .to make a. note ·in the .[ARMMS]"or some other St Bernard Parish Sheriffs record wtn be ·sllre to follow up with that other parish and let them know ff or when it is satisfied? ' '·· ' . ' A. It is the same thing .. It is not a very hard thing for that policeman or deputy to do -- to know what he should do and call to make sure this person should be arrested before he puts handcuffs on him at his home or on his job. Q. Is there a written protocol for your department .criminal records? A. I don't have one. Q. Who would have one? A. Protocol is the way things are done. That is the way they have been done. We have not had.a problem.with them. That.is how you are the deputy -- when any police trained to accept the phone cans officer calls, you find out anything. they n~ed to know and whether or not the warrant is good, you m·ake sure thaf YOu check your records even though your warrant might say. satisfi~qA You make sure he is arrested for it. 1t is all in the system right here, , pull . it all ··up before you answer that question, .you check the whole thing, Tha,t is to -~to me the best way. I have not had a problem with' it when or Vou .can Six months after Michael's release from the St Bernard Parish jail, Kris received a phone call from a friend, who advised Kris that she had been questioned at the local Wal- s Mart by an IPSO deputy concerning Michael 1 whereabouts, This prompted Kris to call Deputy Sheriff Stephen Engolio of the IPSO on July 3, 2010, to inquire about the alleged 6 warrant. Deputy Engolio confirmed that there was, in fact, a warrant in their system from SBPSO. Because it was a holiday weekendf Deputy Engolio was unable to verify the outstanding SBPSO warrant. However, he did instruct Kris for both of them to come to his office the following Tuesday so he c9uld "ymake some calls" about the warrant. Deputy Engolio never told Kris that he wouid arrest MichaeL Rather, he advised Kris that if the warrant was valid, Michael "could go 011 doyvn that way" and surrender to SBPSO. Deputy Engolio did confirm, however, that neither IPSO nor SBPSO ever tried to execute the warrant on Michael. Not long after the phone call to Deputy Engolio, Kris told Michael about their conversation. According to Kris, Michael was upset, angry, confused, and scared. When Kris attempted to contact the St. Bernard parish jail about the warrant, she was told that Michael would have to go there b.imself to find out if there was a warrant. Kris testified that they had gone to her parents'. house with the kids that day to . <. \ visit and eat watermelon. According to Kris/Michael had started drinking at about 10:00 that morning and had consumed about a six-pack of beer. She estimated that he drank his last beer around "2:00ish." Kris also indicated that Michael would normally take Xanax and hydrocodone, twice daily, and assumed that he had taken his morning medicine that " day as well. It was on the drive home from her parents' house when Kris made the phone call to the St. Bernard Parish jail. Michael was present during that call and was aware of what Kris had been told. Shortly thereafter, they arrived at home and Michael committed suicide in their backyard. When asked if Michael had ever talked about committing suicide before he was incarcerated in September· 2009~ Kris indicated that after he was released from prison, Michael had said "he woulo. die befbrcthe ever had. to ..g·O. back" .. She also Indicated that '· . ' . . ~.. Michael talked about cornmitting s1:1idd~. one~: 6~f~r~, . ' \- : •' 'some' time. pi-ior to 2009 . :•,,. . I when he had gotten "down and out" over something that happened with his older children. . . . However, Michael never sought any mental health treatment. .· Kris testified that on the day of Michael's suicide, they had discussed the warrant situation with her parents. Michael told them that he "wasn't going back." When asked if Michael threatened to kill himself that day, the following colloquy occurred: 7 Q. Was he threatening to kill himself at any point during that time? He had talked about it. Well, he had talked about when they picked A. him up showing the gun to the deputies when they pulled up to get him and make the deputies shoot him., I'm not quit [sic] sure what you are saying. Q. again. Explain that to me He told me that he was going to wait until the deputies pulled in to A. get him. Q. On the warrant? A. Yes, ma'am. On November 10, 2010, Kris, individually and on behalf of her minor daughter, Halayna Catania, and Haley Catania (hereinafter collectively referred to as "Kris"), filed a petition for damages against Sheriff Jack Stephens and SBPSO {hereinafter collectively referred to as "defendants"), in the 18th Jl.Jdic.ial Distri.ct Court ("18th JDC"), Division A, bearing docket number 69630. Alleging that defendants were negligent in failing to expunge the arrest warrant issued for Michael, Kris sought damages for Michael's wrongful death; past and future loss of support; loss of consortium; mental anguish; loss of love, guidance, affection, and companionship; and funeral expenses. On June 29, 2011, Michael Vincent Catania, Jr. and Brittany Lynn Catania (hereinafter sometimes referred to as the "Catania plaintiffs"), the adult children born of the marriage between Michael and Dorinda, filed a similar petition against defendants in the 18th JDC, Division D, bearing docket number 70493. Defendants ·filed general denials in response to both claims, along with exceptions raising the objections of improper venue, lack of procedural capacity, and no cause of action~ Oh October 31, 2011, the trial court signed an order transferring the Catania plaintiffs' case .lo Division· A of the i8th JDC. The trial court signed an order on November 30, 2011, consolidating the cases for trial. The Catania plaintiffs later amended their suit to add a claim for damages against The Princeton Excess and Surplus Lines Insurance Company ("Princeton"). Princeton was the liability insurer for defendants at all times pertinent hereto. Princeton answered the suit and filed exceptions raising the objections of improper venue, lack of procedural capacity, and no cause of action. 8. Thereafter, defendants filed a motion for summary judgment, seeking dismissal of all the claims against them. Defendants urged that they were entitled to judgment on liability as a matter of law, as plaintiffs could not prevail on any of the elements necessary for a negligence claim; namelyr duty; breach of duty., cause-in-fact, and legal cause. In support of their motion for summary Judgment, defendants submitted the following: 1) the affidavit executed by Dorinda on September 2, 2009, in support of the arrest warrant to be issued against Michael; 2) the arrest warrant issued by Justice of the Peace Luna on September 3, 2009; 3) excerpts from_ the deposition of Deputy Small; 4) the affidavit of Colonel Peter Tufaro, commander of the Criminal Records Division of the SBPSO; 5) certified records from IPSO regarding the warrant at issue; 6) excerpts from the deposition of Dorinda; 7J excerpts from the deposition of Deputy Engolio; 8) Michael's medical records from Dr. Gerard Falgm,1st date!=! May 11, 2009, indicating that Michael had a longstanding history of anxiety disorder qnd chronic pain syndrome; and 9) the autopsy report, which confirmed "[m]ultiple drug intoxication" and a blood alcohol level of .154. Kris and the Catania plaintiffs opposed defendants' motion for summary judgment and filed cross motions for summary judgment contending that .defendants were liable as a matter of law for the wrongful death .of Michael. Submitted in support of the cross motions for summary judgment were the following exhibits: 1) excerpts from the deposition of Dorinda; 2) excerpts from the deposition of Deputy Bayham; 3) the affidavit executed by Dorinda on September 2, 2009~ in support of the arrest warrant to be issued against Michael; 4) excerpts from the deposition of Deputy Small; 5) certified records from IPSO regarding the warrant at issue; 6) excerpts from the deposition of Kris; 7) a message sent by Kris to Dorinda on myspace:com the morning before Michael committed suicide, questioning why she was trying to have him arrested again; 8) a printout from the website thinkstream.com, describing the technology available to law enforcement in Louisiana for communications between databases; 9) a copy of a letter Michael wrote to Kris while he was incarcerated; 10) an unsigned affidavit of Kris' mother, Brenda Griffin; 11) an unsigned affidavit of Kris' father, William Griffin; 12) a note from Cpl. D. Culpepper 9. 2 regarding Michael's warrant and the fi3C;t that the. warrant had two CCN numbers that needed to be combined (CpL Culpepper also indicate~ that because of the two CCN 11 numbers, the warrant "did not Load proper!y and needed to be satisfied ~n ARMMS.); 13) report and affidavit of Dr. Marc L Zirnmerman,, a dinical, medical, and forensic psychologist who was asked to review ce1ta!n documents~ pertaining to Michael's arrest, incarceration, and suicide; and 14) arrestreiated death statistics developed. by the United States Department of Justice. Following a hearing on the motions, the trial .court rule~ from the bench, granting ' ' defendants' motion for summary judgment. The trial court fo.und that Michael's suicide was not foreseeable and did not fall within. the scope of the duty owed by. the defendants. The trial court also denied the cross motions for.$ummary judgment filed by Kris and the Catania plaintiffs, noting that there existed a genuine issue of material fact as to whether SBPSO had notified IPSO that there was a~ outst,andfng warrant.· . There are two separate judgments, poth· ~igned by ·the trial court on April 8, 2014r addressing the motions. 3' 4 The judgment· that. forms the basis of the. instant appeals provides, in pertinent part, as follows: IT IS ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed on behalf of the defendants, Sheriff Jack Stephens and the St. Bernard Parish Sheriff's Office is hereby granted in favor of the 2 3 According to Deputy Bayham, a CCN number is assigned to an inmate upon arrest. . ' The other judgment signed by the trial court on April 8, 2014, denied the plaintiffs' cross motions for summary judgment, and forms the basis of the appeal in Catania I. 4 Prior to rendering judgment, the trial court considered neither the answer nor the exception raising the objection of no cause of action filed by Princeton in response to the Catania plaintiffs' claims. However, that Trustees of East Baton Rouge would not affect our authoricy to notice the objection,· In Board Mortg. Finance Authority v. All Taxpayers,. 336 So.2d 303, 305 (La. App. 1 Cir. 1976), this court, citing Pogue v. Ray, 272. So.2d 454, 457 (La. App. 2 Cir, 1973), noted as follows: -- of Although the record does not show thatthe trial court considered or ruled on the exception of no cause of action filed by defendants· .. , under the provisions of la. CC.P. Article 927, this court has authority on. itb own motion to take notice that the petition and action .. attached documents do not disclose a cause of Thus, despite the trial.court's failure to consider or rule onthe no cause of action exception, we find that the Catania plaintiffs have failed to state a c:ause of action against Princeton and amend the judgment to reflect that the Catania plaintiffs' claims against Princeton are dismissed, with prejudice, for failure to state a cause of action. .10 i . \. . . . -.. ~ defendants, Sheriff Jack Stephens and U~e St.~.Bem~rd Parish ?heriffs Office against the plaintiffs, Kris Catania! fr1dividual!y and on behalf of her minor daughter, Halayna Catania, Haley Cataniaj IVii~h~'el ymcent Catania, Jr. and Brittany Lynn Catania, dismissing this action with prejudice . On appeal, Kris assigns the following specijf!cati6ns ·of error for our. review: ' ' of 1. The Trial Court erred as a matter law in falling to find the invalid arrest warrant issued against decedent Mi.chae~ Catania. entitled the Catania Appellants to damages for their injUnes pursuant to Article 1, Section 5 of · the Louisiana Constitution, 2. The Trial Court erred as a matter. of .law in fa~ling to find that Appellee SBPSO's failure to present decedent Mlchae·1 Catania before a judge to appoint defense counsel within 72 hours. of his surrender violated La. Code of Criminal Procedure Article 230,1 and entitled the Catania Appellants to civil damages. .! , •. \,: • 3. The Trial Court erred in failil)g. t9 find the uncont~adicted evidence showed that law enforcement agencies have long known about the risk of suicide by potential arrestees and that the- risk·of suicide,· is foreseeable. 4. The Trial Court erred in failing to find tha,t since the risk of suicide by potential arrestees is foreseeable to law enforcement agencies like Appellee SBPSO, such foreseeability imposes a duty on the part of law enforcement agencies like the SBPSO to use due care in the issuance and removal of arrest warrants from law enforcementrecords, · The Catania plaintiffs also appealed, assigning ·error to the trial court's judgment as 1 follows: ''The trial court erred in granting defendants Motion for Summary Judgment and dismissing plaintiffs' claims on the grounds that 'ML Catania's suicide as a matter of law was not within the scope of defendants' duty in this case." SUMMARY lUDGMENTs A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed ' for by a litigant. All Crane Rental App. 1 Cir. 9/10/10), So.3d 387. While sum ma~ should ~ '. . 2010-0116, p, 4 (La. 41 so.3d 1024, 1021; Wc!t:deni~df 2:010-2227 (La. only be 11/19/10), 49 Judg~ents·. ~·re· :~10~ 'fa·v~~ed~:. ·a : motion · for . summary .'I judgment • /,, I of Georgia:, Inc. v. Vincent, granted i( the ' piead1hgs, depositions, answers to 5 The summary judgment in this case was signed on April 8, 2014; thus, it is governed by the version of La. Code Civ. P. art. 966 in effect after its amendment by 2013 La. Acts, No. 391, § 1, effective August 1, 2013. See Ciolino v. First Guaranty Bank, 2012-2079, p. 6 n.3 (La. App. 1 Cir. 10/30/13), 133 So.3d 686, 690 n.3. Changes implemented by a later amendment to Article 966 are not implicated in this appeal. See 2014 La. Acts, No. 187, § 1, effective August 1, 2014. Smith v. Northshore Regional Medical Center, Inc., 2014-0628, p. __ n.3 (La. App. 1 Gr. 1/26/15), -~ So3d ~·' _ n.3. interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary Judgment,6 sh~w that there is no genuine issue as to material fact, and that the movant is entitled to summary judgment as a matter of I law. La. Code Civ. P. art. 966(8)(2). The burden of proof on a motion .for ~ummary judgment remains with the movant. 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 e~sential elements of the adverse party's claim, action, or defense, but rather to point ()Ut to .the covrt that there is an absence of factual support for one o.r more elements essenticil.to the adverse party's claim, action, or defense. Thereafter, if the adverse party fail$ to produ,ce 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. La. Code Civ. R art. 966(C)(2), Thus, once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material . ·. ' factual dispute mandates the granting of the. motion. La. Code Civ. P. art. 967(8); Pugh v. St. Tammany Parish School Btt, 2007-1856, p. 2 (La. App. 1 Cir, 8/21/08), 994 So.2d 95, 97 (on rehearing), writ _denied, 2008-2316 (La. 11/21/08), 996 So.2d 1113. Moreover, when a motion for summary judgment is made and supported as provided above, an adverse party niay not. rest. on the f'ne~e allegations or denials of his .. pleading, but his response, by affidavits pr as .otherwise.. provlded above, must set forth specific facts showing that there rem.aiqs a genuine is.sue for triaL If he does not so • .. • \'; ( : • .• '·- . ' • ! ' • ' :. . <' ·\ .. I, .. I .. ~ ., ' , 6 Louisiana Code of Civil Procedure article 966 was recently amended by Acts 2013, No. 391, § 1, to provide for submission of evidence and objections to ~Vidence for rD,Otions for summary judgment. Under the amended version of the article, evidence cited in and .attached to. the motion for summary judgment or memorandum filed by an adverse party is deemed· admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Article 966(F)(3). Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion. La. Code Civ. P" art 966(F)(2). 11'.'!oreover, a summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. P, art. 966(F)(1)" 'J2 ~'. : '' . .· .~' ·: .•:' ; ,_, 11"' '· < ~ • . respond, summary judgment, if appropriate, shal! be rendered against him. La. Code Civ. P. art. 967(8). In determining whether summary judgment is proper, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Sanders v. Ashland Oil Inc., 96-1751, p. 7 (La. App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La. 10/31/97), 703 So.2d 29. Material facts are those that potentially ensure or preclude recovery, affect the litigant's success, or determine the outcome of a legal dispute. Populis v. Home Depot, Inc., 2007-2449, p. 3 (La. App. 1 Cir. 5/2/08), 991 So.2d 23, 25, writ denied, 2008-1155 (La. 9/19/08), 992 So.2d 943. Because it is the applicable substantive law that determines· materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Christakis v. Clipper Const., LL.C~f .2012..;1638, pp.· 3-4 (La. App. 1 Cir. 4/26/13), 117 So.3d 168, 170, writ denied, 2013-1913 (La .. 11/8/13), 125 So.3d 454. VALIDITY OF ARREST. WARRANT (Kris's Assignment of Error No. 1) Alleging that the arrest warrant against Michael was issued without probable cause, Kris asserts a right of action for SBPSO's wrongful arrest, imprisonment, and wrongful death of Michael based on the issuance of an invalid arrest warrant that SBPSO failed to recall. In response, defendants as.sert that the arrest warrant was issued by Justice of the Peace Howard Luna based on information provided by Dorinda and that neither SBPSO nor Sheriff .Jack . Stephens were ,.involved in the issuance of the warrant. . . ·: ·.._ . . . ' ' , ' Defendants further argue that any ,action for false arrest arising from the alleged defective warrant prescribed prior to the time suit was . .' . ' . . ' fil~~ ~ ~. ·. ' . . . . . .in :.this .matter. . ' . ; ' ( ' With regard to the arrest warrant, Dorinda_testified as follows in her deposition: I Did you mention to the Justice of the Peace Luna that you Q. understood Michael Catania had fallen behind Jn child support because he lost his job for whatever reason? No. I don't think I went into details with Mr. Luna. I picked up the A. paperwork, filled it out, and dropped it back off. That was it. Q. When you say filled it, you are referring to. -- . .13 ... ' A. I filled out that paperwork -- Q. -- that papeiwork being the affidavit .... ? A. Correct. Q. Where did you pick it A. Out of his mailbox. Q. You picked up an empty version of -- A. That form. Q. . .. You filled out the substance of the complaint -- A. Correct. Q. ... Then you dropped it off back at his -- A. Drop off box that he has. up from? Q. Did Magistrate Luna fill out the part on the top after you had dropped it off? A. Yes. Q. Did Magistrate Luna fill -- did he fill in this bottom part here? I am referring to the left-hand corner sworn and described [sic] before me? A. I would imagine that is his signature. I don't know, I can't answer that one. Q. You didn't sign that in front of Magistrate -- A. No. Q. Did you and Magistrate Luna have any conversation about the issuance of th~ warrant? No. I couldn't even tell you wha.t h~ looked like, what he looks like. · A. Q. I have no clue That was my next question. A. I don't know what he looks like. I couldn't tell you. He has a drop off box and a pick up box. Q. Have you ever gotten a copy of the actual warrant that was issued for Michael? A. No. 14 Q. Have you ever seen a copy of the A. warrant? No. The trial court heard argument ofrespective counsel and considered the evidence . . submitted by the parties in connection with defer;dai1tsi motion for· summary judgment. The trial court noted that the warrant might have been defective because Dorinda did not swear out the affidavit before Justice of the Peace Luna~ Nonetheless, the trial court concluded that SBPSO could not be faulted· for an allegedly defective warrant that it did not issue. The trial court noted 11 how is that the fault of the Sheriff's Department for .. - " defective~ putting in their system a warrant, though obviously buying your argument, signed ... . . from a Justice of the Peace, who a warrant without having the affiant swear before them." We find no error in the trial court's ruling on this issue. This assignment of error is without merit. ALLEGED VIOLATION OF LA. CODE CRIM. P. ART. 230.1 (Kris's Assignm.ent of E~ror No. 2) ... Kris argues that when Michael voluntarily surrendered himself to $BPSO on September 22, 2009, La. Code Crim, P. art. 230.1 required that he be brought before a judge within 72 hours of his surrender for the purpose of appointment of counsel. Noting 1 that Michael's first and only 'passing contact with defense counsel occurred on November 18, 2009, after two months of mcarceration,U Kris asserts that the trial court committed reversible error in failing to find SBPSO liable for violating Michael's right to counsel under Article 230.1. We believe.· that Kris' argument, that SBPSO is liable for a violation of Article 230.1, is not supported either by the. language of the article or by the jurisprudence applying it. Article 230.1 states: A. The sheriff or law enforcement officer having custody of an arrested person shall bring him promptly, and in any case within seventytwo hours from the time of the arrest, before a judge for the purpose of appointment of counseL Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two-hour period referred to herein, The defendant shall appear in person unless the court by local rule provides for such appearance by telephone or audio-video electronic equipment. However, upon a showing that the defendant is incapacitated, unconscious, or otherwise physically or mentally unable to appear in court 15 ''. within seventymtwo hours, then the defendant's presence is waived by law, and a judge shall appoint counsei. to n~:present the defendant within seventy-two hours from the time of arrest B. At this appearancec ifa defendant has the right to have the court appoint counsel to defend hirrt. the cuurr s~iaii assign counsel to the .discretionr qetermine or review a defendant. The court may ai'so 1 in . . prior determination of the amowntr Of pa;i: . C. If the arrested person · Is. accordance with the. provisions released forthwith . . not .brq!Jght b.eforn ~ judge in he shall be of Paragraph A of .this Article, . . ' .. .. ' ,. . D. The failure of .the sheriff or law. enfon:e.rnent officer to comply with the requirements. herein shall have no.. ~ffect whatsoever upon the validity of the proceedings thereaft:.er ()gainst the defendant . . ' . ' , any Of course, Article 230.1. itself does not provide for violation. civil liabilitY for its However, in St~te v. Wallace, 3,92 $o,2d .410 (La. 1980), the Supr~me Court held that a person, incarcerated, without. peing brought~ before a judge within 72 . . ' " ' ' hours, in violation of Article 230.1, does have ·a 9ivil cause ' ' of action for damages. The court stated: We note that a person who is not brought before Cl .judge within 72 hours of his arrest, as required by art 230, 1 Ar not only is statutorily entitled to obtain release, but also. has· a ciaim for civil damages resulting from violation of the article's mandate. When an arrested person is released within (or at the expiration of) 72 hours, thesanction of release does not come into play, and the arrested person has only a claim for civil damages and then only if his initiql arrest and the detention (of iess than 72 hours) were illegal. But when an arrested person is held in custody more than 72 hours without being brought before a judge, then any detention thereafter is illegal, whether or not the initial detention was proper, and that detention (in excess of Tl hours) gives rise to (1) the right to immediate release and (2) a claim for civil damages for that illegal · detention. Wallace, 392 So.2d at 413. But the ·wallace case does not state that the sheriff holding the incarcerated persoo is liable for is the fault of some other governnient damages Wheh the vioiatioti. of Article 230.1 ag~ncy a·nd not th'e fault of the' sheriff. in Wallace suggests that. the sheriff. is liable withol.it fault :for 230.1. a ~iolation Nothing of Article Moreover, an alleged violation of Article '230. l is moot after conviction and sentence. State v. Durio 1 371 So.2d 1158, 1163 (La. 1979). According to the record in the instant case; Michael voluntarily surrendered himself to SBPSO on September 22, 2009. He was brought to Magistrate Court to appear before 16 '. :1' Division "C" on September 23, 2009, at which time bond was .set at "$5,000 cash only." The two boxes for "Attorney" labeled 1"LD.''"and '"own" were left unchecked, indicating to represent Michael at that time. that the court may not have appointed an. attorney Nonetheless, when Michael appeared for his arraiqnment on November 18, 2009r he was represented by counsel. Thereafter, Michaei appeared on January 14., 2010, waived his right to an attorney, entered a guilty. piea to criminal negiec.t of farniiy, and was sentenced accordingly. Thus, not only would any alleged violation of Article 230.1 be moot at this point because of Michael's guilty plea and subsequent s~ntencing, but we also find that SBPSO fulfilled its duty under Article 230.1 by bringi~g Michael to Magistrate Court within 24 hours of his surrender. What happened· :at that court· appearance with regard to the • I . ' appointment of counsel cannot be .imputed .to S6PSO.· ·It was the cqurt's responsibility, w: not SBPSO's, to assign counsel to Michael. find no merit to .Kris' argum.ent tp the contrary. FORESEEABILITY OF SUICIDE AND DUTY/RISK ANALYSIS {Kris's Assignments of Error Nos. 3 and 4 and Catania Plaintiffs' Assignmentof Error} Kris and the Catania plaintiffs argue that the trial court erred in granting the defendants' motion for summary judgment and dismissing their claims, contending that because the risk of suicide by potential arrestees is foreseeable to law enforcement agencies, Michael's suicide, as a matter oflawr wa'$ vyithin the scope of the defendants' duty in this case. They further argue 'that summary judgment should be reversed based . on the unchallenged expert _report .,ot Dr~. Zim.rnermari . 7 .Iii. response, the defendants ' •. .... l . . .· ' ' ( ,, ; ".""" '. ;· .. '. • .. . . an ;; unsubstantiated rumor that 1he was goingJo be . .... the .~i,s.k that 'J'1fchfue1 '.would co~mit' suicide, based on . . ·.·. contend that as a matter of law, . '• ' '.J 7 wrestep on an outstand_ing warrant, ,\. ,! . .... . . • when . We are mindful of the well-settled principle of !aw thafthe triaicourt has great discretion in determining the qualifications of experts and the effect and weight to be given to expert testimony. Smith v. Smith, 2004-2168, p. 15 (La. App. 1 Cir. 9/28/2005), 923 So.2.d 732, 742. Absent a clear abuse of the trial court's discretion, this court will not disturb the trial court's determination. Washauer v. J,C. Penney Co., Inc., 2003-0642, p. 4 (La. App. 1 Cir, 4/21/2004), 879 So.2d 195, 198. '., 17 there was no attempt being made to actually arrest him, does not fall within the scope of any duty owed by the defendants. We agree with the defendants. The claims by Kris and the Catania plaintiffs in this case are based upon SBPSO's alleged negligence. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7 (La. 3/10/06),.92.3 So.2d 627, 632-633. For liability to attach under a duty-risk analysis, a plaintiff must prove: (1) the defendant had a duty to conform his conduct to a specific standard (th~. duty element); (2) the defendant failed to conform his conduct to the appropriate standard. (the breach of duty element); (3) the defendant's substandard conduct w.as a cause~ir-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defehdant'.S·$ubsta11dard conduct was a legal cause . ' of the plaintiffs injuries (the scope of liability. or scope of protection element); and (5) actual damages (the damagei» element}. :Roberts v. R.udzis, 2013-0538, p. 9 (La. App. 1 Cir. 5/28/14), 146 So.3d 602~ 608-609, writ denied, 2014-1369 (La. 10/3/14), 149 So.3d 797. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability.. ~ellanger v. Webre, 2010-0720, p. 8 (La. App. 1 Cir. 5/6/11), 65 So.3d 201, 207, writ denied, 2011-1171 (La. 9/16/11), 69 So.3d ' 1149. Therefore, to carry the burden on summary judgment, defendants were required to show an absence of factual support for any of the elements of the negligence cause of action. "A risk may be found not within the scope of a duty wher:e the circumstances of that injury to the plaintiff could not reasoriably' there was no ease of as~ociation Lazard v. Foti, 2002-2888, p. b~ foreseen or anticipated 1 because between .the· risk of that in}Lir-Y ·and the legal duty." 6 (La: ~ib/2ifoj)~· 859' Sb.2~{ 6S6, 661' (citing Hill v. Lundin & Assoc., 260 La. 542, 256 So.2d 6l0 1 622 (1972)) (emphasis in original). In Roberts v. Benoit, 605 So.2d 1032 (La. 1991), the Louisiana Supreme Court considered a case in which an off-duty police deputy shot the plaintiff accidentally when he was playing with his gun while intoxicated. The court addressed the ease of association between the risk posed by the deputy's conduct and the Sheriffs duty to 18 ... . [.• exercise reason when hiring and training .deputies. The court determined that the ease of association in that case was attenuated at best. Roberts, 605 So.2d at 1045. The court extensively discussed the scope of prptection element of the ducy.,risk analysis as follows: . . The most critical issue. in the iqstant case is Whether the injury plaintiff sustained was within .the ~onternplation .of the duty discussed 11 above. There is no rule" for' QetenTl1ning the scope of the duty. Regardless if stated in terms of proxi.mate causep !e.gal. cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty .... In short, the scope of protection inquiry asks "whether the en.unciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner.." Generally, the scope of protecti9n inquiry becomes significant in "fact-sensitive" cases in which a lirp,ite1tion of. the. "but for" consequences of the defendant's substandard conduQ: is warranted. These cases require logic, reasoning and policy decisions Qe employ~d to determine whether liability should be imposed unde.r the parb.cqlar' factu.al circumstances presented .... In determining the limitation to be placed· on liability for a defendant's substandard conduct..te., whether there is a duty-risk relationship-we have found the proper inquiry to be how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Restated, the ease of association inquiry is simply: "How easily does one associate the plaintiffs complainecJ:ofharm:with the defendant's conduct? .. . Although ease of association encomp(;lss~s the idea of foreseeability, it is not based on foreseeability alone," Absent an ease of association between the duty breached and the damages sustainedr we have found legal fault lacking. Roberts, 605 So.2d at 1044-1045 (citations omitted) (emphasis in original). rehearing, the Roberts court further noted: Because substandard conduct does not render the actor liable for all consequences [spiraling] outward. until the end of time, the concept of proximate cause, or one of its functional equivaients, such as scope of the duty in duty-risk analysis, is necessary. to truncate liability at some point. The primary inquiry, thenf in a proximate cause determination Is: "whether plaintiff will be granted the legal. system's protection-that is, will the defendant be required to have met a spec!fied standard of conduct in the case at issue or be subject to liability." The cases on legal cause are many and diverse, Our modern jurisprudence begins with the seminal duty-risk casef Dixie Drive It Yourself System New Orleans Co. V; American Beverage Co.1 242 La. 471v 137 So.2d 298 (1962)r in which this Court heid: 19 On The essence of the [legal cause] mquiry is whether the risk and harm encountrered by the plaintiff fall within the scope of protection of the [duty],,;,, Specifically, it .involves. a determination of whether the ": . duty of displaying signal flags and responsibility fm ·protecting traffic were designed, at least in part, to afford protet;tlon rothe ciass of daimants of which plaintiff is a member ·from the h9zard of confused or inattentive drivers colliding· with s.tationary vehicles on the highway, Id. 137 So.2d at 304. Roberts, 605 So.2d at 1052, 1054.. · The primary issue before us iswheth~r, unqer the facts of this case, SBPSO had . . , , . . a duty to notify IPSO when Michael's arrestwarrant had been satisfied and/or whether the alleged injuries sustained fall within th~ scope ofthe duty. The trial court noted as follows: THE COURT: I find that the question of whether or .not St. Bernard notified Iberville that the warrant was outstanding.' I find that it is a genuine issue of material fact. ... I'm not going to grant a Motion for Summary Judgment on that issue, because the finde~ of fact:F wtiich l? going to be me or a jury, must determine that, after they hear· from all of the witnesses and let the finder of fact decide whether St Bernard contacted Iberville. But, in a iight most favorable to the plaintiffs, I wantto shift gears and move further down · the road. So, I'm going to couch it this wayf let's go ahead and concede for argument sake at this hearing, that St Bernard contacted Iberville and Iberville ,,. knew that there was a warrant out for Catania. It seems to me the ultimate fact to be decided,, is whether ... their breach of duty, St Bernard's breach of duty to not notify timely, and when I say timely, I'm talking about before the suicide. ·.,, But, the question is did they owe or did they -- is their breach of their duty to cont~ct Iber:ville, . Is 1t the [cause~in-f~ct] of the injuries ·· sustained by the plaintiffs·.~,? THE COURT: To me the more important issue, which we agree can be made by this Court, is the -- whether or not -- I also think that it is likely that there is a -- that there is a duty. Did y'all ask me to find whether ..,. there was a duty; Plaintiffs? [COUNSEL FOR KRIS]: Yesf Your Honore 20 THE COURT: That there was a duty"? [COUNSEL FORKRIS]: Under the Louisiana Constltu'don 1 th0: Lc~ulsiana Sheriff's Procedures and foreseeability, yes, Your Honor" ;t create[sJ the duty to recall. THE COURT: I find that there was a --·is a duty for the Sheriff's Department to notify a persons, for which they request somepne be arrested [sic], There certainly is a duty. The ultimate question· whether ... the breach of duty was a cause-in-fact. ... is I think the position as voicecl'by. the counsel -~· by the St. Bernard We Parish is ·absolutely right :have.the duty;riskanalysis. [Michael's suicide] was forseeable [sic},., , ,.I I do not think l [H]e served his time already and fQr r~asons I. may never unless I'm reversed and it comes back, this: committed suicide was obviously some conc~rn about being. re'.'.arrested, I make no about that This is a legal question and r do not think it fails in the of the duty. man know r and it bones scope We have thoroughly reviewed the evidence submitted by the parties in connection with defendants' motion for summary judgment, f:md agree with the trial court's conclusion that the risk of harm to Michael in this case did not fall within the scope of the duty owed by defendants. It is clear that. any duty cjefendants had to contact IPSO to advise them that the warrant for Michael had been . satisfied by his arrest and incarceration did not enc;ornpas~ the riskJ:hat Michael would 'then :co.mmit suicide, after .· . ' consuming dr~gs ' ., and alcphol 1 . based '. . outstanding warrant. - The record ' ', ; ' ' 611,· ;:;pec·ulatlon .that· he .. may: .be . ·'.' . " ·.. arrested on an . is devoid. bi :a.riy" evidence t~at eit-her SBPSO or IPSO ever took any action to arrest Michael on the warrant. Nor is there any evidence that affirmative steps would have been taken· to arrest Michaei without first verifying that the warrant was still active, In fact, Deputy Engoiio specifically told Kris when she contacted him that when they came into his officer he would :call SBPSO to verify that the warrant was still outstanding, Moreoverf Deputy Smail testified that the normal IPSO procedure 21. w,m for out of parish warrants is that the deputies call_ her or the jail so that they can verify that the warrant is still active befo'.e they make an. arrest Kris and the Catania plaintiffs failed to produce factual evidence sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial on the duty/risk analysis, The arguments made by Kris and the Catania plaintiffs on appeal concerning these issues are without merit. Accordingly, summary judgment in favor of defendants was appropriate. CONCLUSION For the above and foregoing reasons, we amend the trial court's April 8, 2014 judgment to provide that the Catania plaintiffs' claims against Princeton be dismissed, with prejudice, for failure to state a cause of action, In all other respects, we affirm the trial court's April 8, 2014 judgment. We assess all costs associated with this appeal against appellants, Kris Catania, individually and.on-behalf of her minor daughter, Halayna Catania, Haley Catania, Michael Vincent Catania, Jr., and Brittany Lynn Catania, AMENDED IN PART; AFFIRMED AS AMENDED. · ' . .. ·. .... { "\ . ,.. , 22 ' ' ,·.' . ,.. ,.·· • ';1
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