Freeman v. Tate6/4/2003
PUBLISHED
AFFIRMED.
Cooks, J., dissents and assigns written reasons. Woodard, J., dissents. As addressed by Judge Cooks, there are numerous material facts in dispute, anyone of which should preclude summary judgment.
This appeal involves a pedestrian who was struck by a drunk driver while detained by two Evangeline Parish Sheriffs' Deputies. The pedestrian, Nathan Freeman, sued the deputies and the sheriff. The trial court dismissed the suit on summary judgment. Freeman appeals. For the following reasons, we affirm the decision of the trial court.
On December 25, 2000, at about 4:00 a.m., Freeman and his cousin were walking along Louisiana Highway 29 in a northerly direction, toward Ville Platte. At that time, Sheriffs' Deputies Kevin Tate and Bill Ortego were driving on the same highway in a southern direction in an Evangeline Parish Sheriff's Department patrol car. Earlier in the evening, the deputies had been notified that a black male had escaped from the jail and that all units should be on the lookout for the escapee. Upon seeing Freeman and his cousin, both black males, walking alongside the road at such a late hour, the deputies turned their vehicle around to investigate. They did so in order to determine if either Freeman or his cousin was the escapee, or if they were stranded and in need of assistance.
The deputies pulled up behind the men, facing north in the southbound lane, partially on the road and partially on the shoulder. They then turned on their overhead rotator lights and alternating flashing headlights. Freeman and his cousin were asked to step toward the cruiser. They complied. As the deputies were questioning the two men, the cousin saw a vehicle approach at a high rate of speed. He shouted to warn everyone as the vehicle got closer. The approaching vehicle, driven by Daniel Thomas, veered to the right, narrowly avoided the patrol car, and struck Freeman, severely injuring his leg. After he got out of his vehicle, Thomas was immediately taken into custody and charged with driving while intoxicated. His blood alcohol level was later found to be .135 on the blood alcohol test.
Freeman sued the deputies and the sheriff, claiming the deputies were negligent in their parking of the police cruiser, and that this negligence caused the accident. Freeman settled with Thomas and his insurer out of court. The deputies filed a motion for summary judgment, claiming their actions were not negligent under La. R.S. 32:24, and that the accident was the sole fault of the drunk driver, Daniel Thomas. The trial court granted the summary judgment in favor of the deputies, dismissing the suit. From this decision, Freeman appeals.
On appeal, Freeman asserts two assignments of error, which are essentially one, that the trial court erred in granting the summary judgment, as he claims genuine issues of material fact exist, and the trial court misinterpreted the provisions of La. R.S. 32:24. We disagree.
An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991); Haley v. Calcasieu Parish Sch. Bd., 99-883 (La.App. 3 Cir. 12/8/99), 753 So.2d 882, writ denied, 00-54 (La. 2/24/00), 755 So.2d 242. Article 966(B) of the Louisiana Code of Civil Procedure provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Accordingly, this is the standa
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