Nancy Miller, wife of and Zachary Miller VS Brent Michael Tauzen, Monica M. Tauzin, and Allstate Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2014 CA 1701 NANCY MILLER, WIFE OF AND ZACHARY MILLER VERSUS A\ a.RENT MICHAEL TAUZIN, MONICA M. TAUZIN, AND ALLSTATE \ INSURANCE COMPANY Judgment Rendered: rJUN o 5 2015 Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche, Louisiana Docket Number 123083 Honorable Walter I. Lanier, III, Judge Presiding Matthew W. Pryor Counsel for Plaintiffs/Appellants Katie E. Gravois Nancy Miller and Zachary Miller Gonzales, LA James L. Donovan, Jr. Counsel for Defendant/Appellee P. M. Donovan Monica M. Tauzin James F. Ryan Metairie, LA Brian L. Reboul Counsel for Defendant/Appellee Metairie, LA ASI Lloyds BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. WHIPPLE, C.J. This is an appeal by plaintiffs, Nancy Miller and Zachary Miller, from a judgment of the trial court, granting defendant, Monica Tauzin's, motion for summary judgment and dismissing plaintiffs' claims against her with prejudice. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY On July 8, 2012, at approximately 12:05 a.m., Ethan Miller was riding his bicycle along Louisiana Highway 308 in Lafourche Parish, on his way home from his job, when he was struck by an automobile driven by Brent Tauzin, resulting in Ethan's untimely death. Brent Tauzin' s actions leading up to this tragic accident are undisputed. On July 7, 2012, Brent Tauzin and his wife, Monica Tauzin, went boating on a friend's boat on Lake Verret. Brent was drinking throughout the day, until he and his wife returned to their home at approximately 11 :00 p.m. After his wife drove them home, Brent told her that he was going to get something to eat. Monica Tauzin asked Brent not to drive and told him that she would bring him to get something to eat after she took a bath. While she was bathing, Brent took the keys to their automobile from the kitchen counter and left the house to go to Burger King. On his way to Burger King, Brent was involved in the subject accident with Ethan Miller. 1 Following the accident and Ethan' s death, Ethan' s parents, Nancy and Zachary Miller (" the Millers"), filed a wrongful death lawsuit, nammg as defendants: ( 1) Brent Tauzin; ( 2) Brent Tauzin's wife, Monica Tauzin; ( 3) the Tauzins' automobile insurer, Allstate Insurance Company; and ( 3) the Tauzins' homeowner insurer, ASI Lloyds. 1Brent Tauzin was arrested on the night of the accident for driving while intoxicated. He subsequently pled guilty to negligent homicide. 2 In an amended petition, the Millers specifically alleged that by driving her intoxicated husband home, Monica Tauzin assumed the duty of preventing her intoxicated husband from operating a vehicle on the public roads and endangering others, and that she thereafter breached this duty when " she failed to secure the keys to the vehicle owned by the couple, thereby preventing her husband from leaving their residence and causing the [ subject] accident ... ". In response to the amended petition, Monica Tauzin filed a motion for summary judgment, contending that she did not breach any legal duty owed to the Millers that led or contributed to her husband's accident with the Millers' son. Following a hearing, the trial court rendered judgment, granting Monica Tauzin's motion for summary judgment and dismissing with prejudice the Millers' claims against her. 2 From this judgment, the Millers now appeal. SUMMARY JUDGMENT A motion for summary judgment is a procedural device used to avoid a fullscale trial when there is no genuine issue of material fact. McLin v. Hi Ho, Inc., 2012-1702 ( La. App. pt Cir. 6/7113), 118 So. 3d 462, 467. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes ofthe motion for summary judgment, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is now favored. LSA-C.C.P. art. 966(A)(2). On a motion for summary judgment, the initial burden of proof is on the mover. If the moving party will not bear the burden of proof at trial, the 2The Tauzins' homeowner's insurer, ASI Lloyds, also filed a motion for summary judgment. However, the parties decided to continue, without date, the hearing on the insurer's motion for summary judgment, as they acknowledged that the insurer's motion is directly related to whether the Millers have a claim against Monica Tauzin, and, therefore, the insurer's motion may be moot ifthe trial court judgment dismissing the claims against Monica Tauzin is affirmed. Thus, the Millers' claims against ASI Lloyds are not at issue or before us in this appeal. 3 movant' s burden on the motion does not reqmre him to negate all essential elements of the adverse party's claim, but rather to point out that there 1s an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Ifthe nonmoving party fails to do so, there is no. genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. art. 966(C)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de nova under the same criteria that govern the trial court's determination of whether summary judgment is 467. appropriate~ McLin, 118 So. 3d at 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. Cason v. Saniford, 2013-1825 ( La. App. 1st Cir. 6/6/14), 148 So. 3d 8, 11, writ denied, 2014-1431 ( La. 10/24/14), 151 So. 3d 602. DISCUSSION On appeal, the Millers aver that the trial court erred in granting the motion for summary judgment because assumption of a duty and breach of that duty are questions of fact to be decided by the trier of fact, not by summary judgment. In response, Monica Tauzin counters that summary judgment was proper because the undisputed facts of this case establish that she assumed no duty to any third party by driving her husband home from a social event earlier in the day. A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Ponceti v. First Lake Properties, Inc., 2011-2711 ( La. 7/2/12), 93 So. 3d 1251, 1252. In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow 4 of litigation; the ease of association between the society defendant's conduct; the economic impact on plaintiffs harm and the as well as the economic of the defendant's activity; moral impact on similarly situated parties; the nature as well as the direction in considerations, particularly victim fault; and precedent which society and its institutions are evolving. Sanders v. Posi- Seal Intern., 95- 2d 742, 746, writ denied, 96-0745 ( La. 0701 ( La. App. pt Cir. 2/ 23/ 96), 668 So. 5110/96), 672 So. 2d 924. of a duty and breach of that In support of their argument that assumption decided on summary judgment, the duty are questions of fact that cannot be La. App. Millers cite Schulker v. Roberson, 91- 1228 ( 3rct Cir. 6/ 5/96), 676 So. 2d issue was whether the trial court erred in 684, a third circuit case. In Schulker, the liability to protect the public from finding, after a trial, that a tavern did not assume In finding that no duty was owed by intoxicated patrons by hiring security guards. of whether a person has voluntarily the tavern, the court stated, " The question the determinations of a trier of fact in assumed a duty is one of fact. Accordingly, this regard are entitled to great deference." Schulker, 676 So.2d at 688. The that assumption of a duty cannot Millers contend that this statement thus implies disagree. be determined on summary judgment. We address whether or not Notably, " in Schulker, the court did not directly summary judgment, as Schulker assumption of a duty can be determined on court after a trial on the merits. involved review of a decision of the trial as the Millers contend, i.e., as Moreover, even if we were to interpret Schulker be decided on summary judgment, establishing that assumption of a duty cannot to the well-established principle that such an interpretation would be contrary to be decided by the court, whereas, existence of a duty is a question of law by the trier of fact. breach of duty and causation are to be determined at 1252. 668 So. 2d at 746; Ponceti, 93 So. 3d 5 Sanders, This court has specifically whether or not a examined and determined, in a summary judgment proceeding, of whether or not an duty was owed, and we see no reason why the issue on summary assumption of a duty occurred cannot likewise be determined remain. See Garrett v. judgment, when, as here, no genuine issues of material fact 12/ 5/13) ( unpublished State Farm Fire and Cas. Co., 2013-0344 ( La. App. pt Cir. opinion). Schulker Accordingly, we find no support for the Millers' reliance on of a duty and breach of herein, and further, we reject the argument that assumption a motion for summary that duty are questions of fact that cannot be decided on judgment. Monica Tauzin in Here, the critical evidence offered by both the Millers and deposition testimony of relation to the motion for summary judgment was the Brent Tauzin. s actions Thus, the material facts, specifically, Monica Tauzin' leading up to the accident, are undisputed. Further, the Millers have cited no that by driving her jurisprudential or statutory authority to support the proposition her intoxicated intoxicated spouse home, Monica Tauzin assumed a duty to prevent spouse from taking their car keys. 3 basis or authority in As recognized in the jurisprudence, there is no legal intoxication of the Louisiana which imposes a duty on a spouse to prevent the intoxicated condition. other spouse or even to warn third persons of the spouse' s Cir. 5/ 13/ 98), 714 So. 2d See West v. Hilton Hotels Corp., 97- 2842 ( La. App. 4th a duty on any third party, 179, 183. Indeed, this court has been reluctant to impose intoxicated individual whether spouse or otherwise, where the negligent acts of an cause injury to another. See Doyle v. Murphy, 2013-1730 ( La. App. pt Cir. err in granting motion for 5/ 2/ 14) ( unpublished opinion) ( The trial court did not of action based on its summary judgment and sustaining objection of no cause of an obviously 3Plaintiffs describe the duty she purportedly assumed as " the prevention public roads," which they claim she intoxicated person from operating a motor vehicle on the possible injury to Brent Michael undertook ... because she saw this as necessary to prevent any Tauzin, her-self [sic] and the motoring public." 6 that her conclusion that the mother did not owe a duty to report to law enforcement legitimate concerns son was driving under the influence of alcohol, even despite pt Cir. 4/8/ 98), that an accident might occur.); Butz v. Lynch, 97- 2166 ( La. App. So. 2d 473 ( The 710 So. 2d 1171, 1175, writ denied, 98- 1247 ( La. 6/ 19/ 98), 721 claims against trial court did not err in granting summary judgment and dismissing passenger' s automobile guest passenger where plaintiffs alleged that the guest propellant unreasonable conduct in participating in the inhalation of a dangerous for automobile with the driver while driving rendered the guest passenger liable La. App. pt accident with plaintiffs.); Danos v. St. Pierre, 383 So. 2d 1019, 1022 ( Mere knowledge Cir. 1980), affirmed in part, 402 So. 2d 633, 636-637 ( La. 1981) ( a duty upon or awareness of the intoxicated condition of the driver did not impose driver may injure a a guest passenger to protect against the risk that the intoxicated third party in an automobile accident.). 4 facts, we Thus, while the facts of this case are tragic, under these undisputed her intoxicated are unable to find that Monica Tauzin assumed a duty, by driving or of preventing husband home, of protecting her husband from harming himself him from endangering others. Consequently, on the record before us, we agree of the Millers' that the trial court' s granting of summary judgment and dismissal claims against Monica Tauzin was proper herein. CONCLUSION of the For the above and foregoing reasons, the August 21, 2014 judgment judgment trial court, granting defendant, Monica· Tauzin' s, motion for summary or breach of duty We note that plaintiffs do not allege any theory of independent liability such herein. Instead, as noted based on negligent entrustment, and the record does not support a duty. Plaintiffs' specific above, their motion was premised on Monica Tauzin assuming Tauzin initially, she assertion was that even if there had not been a duty owed by Monica home and failed to secure assumed a duty to prevent the accident when she drove her husband these arguments as meritless, in her keys. Considering the jurisprudence cited above, we reject liability upon Monica that there is no issue of material fact that could serve as a basis to impose 4 Tauzin for these acts as alleged by plaintiffs. 7 her, with prejudice, is hereby affirmed. and dismissing plaintiffs' claims against Nancy Miller and Zachary Miller. Costs of this appeal are assessed to plaintiffs, AFFIRMED. 8
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