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Shoemaker v. City of Shreveport2/24/1999
itions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
Article 966 was amended in 1996 to remove the overriding presumption in favor of trial on the merits and to require equal scrutiny of the supporting documents submitted by the parties. Hayes v. Autin, 96-287 (La.App. 3d Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La. 3/14/97), 690 So.2d 41. In 1997, Article 966 was again amended for the purpose of clarifying the 1996 changes and legislatively overruling all cases inconsistent with Hayes v. Autin, supra. See 1997 La. Acts 483, § 4.
Article 966(C)(2) now reads:
"The burden of proof 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 essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual 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."
Rules governing summary judgments are also found in La. C.C.P. art. 967, which reads, in part:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits."
"When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. . . ."
Shreveport submitted the affidavit of Mike Cook in support of summary judgment. Cook, one of the paramedics who responded to the call at Shooter's on January 1, 1997, based his affidavit on the EMS report and his own recollection of events. Cook performed a paramedic assessment of Shoemaker, whose pulse and respiration were normal, but who had a slightly elevated blood pressure consistent with the trauma. The pupil in Shoemaker's right eye, his only eye with sight, was normal. Shoemaker appeared to Cook to have suffered a soft tissue injury with hematoma on the head and face in the area of his blind left eye. Shoemaker's reflexes, both motor and sensory, were normal in all four extremities. Gross examination did not reveal any depression or skull fracture that could be diagnosed with the naked eye. Shoemaker, who was very confused, scored a 14 out of a maximum 15 on the Glasgow Coma Scale. Based on these observations, Cook knew that Shoemaker did not meet the major trauma criteria identified in the Emergency Transport Policy requiring him to take Shoemaker to the trauma center at the LSU Medical Center.
Cook stated that when Shoemaker and his companion were asked which hospital they preferred Shoe
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