Jason And Johnna Kunath, Individually And As Natural Tutor And Tutrix Of Grayson Kunath, Minor v. Samantha Faye Gafford, The State Of Louisiana, Department Of Children And Family Services, And Suzy Sonnier, Secretary, Louisiana Department Of Children

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #037
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of September, 2021 are as follows:
BY Hughes, J.:
2020-CC-01266 JASON AND JOHNNA KUNATH, INDIVIDUALLY AND AS
NATURAL TUTOR AND TUTRIX OF GRAYSON KUNATH, MINOR
VS. SAMANTHA FAYE GAFFORD, THE STATE OF LOUISIANA,
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND SUZY
SONNIER, SECRETARY, LOUISIANA DEPARTMENT OF CHILDREN
AND FAMILY SERVICES (Parish of Desoto)
AFFIRMED AND REMANDED. SEE OPINION.
Retired Judge Freddie Pitcher, Jr., appointed Justice ad hoc sitting for
McCallum, J., recused in case number 2020-CC-01266 only.
Weimer, C.J., concurs and assigns reasons.
Crichton, J., concurs and assigns reasons.
Griffin, J., concurs and assigns reasons.

*Retired Judge Freddie Pitcher , Jr., participated in this decision as Justice Ad Hoc , sitting for
McCallum, J., recused in this case.
09/30/21
S
UPREME COURT OF LOUISIANA
N
o. 2020-CC-01266
J
ASON AND JOHNNA KUNATH, INDIVIDUALLY AND AS NATURAL
TUTOR AND TUTRIX OF GRAYSON KUNATH, MINOR
VE
RSUS
S
AMANTHA FAYE GAFFORD, THE STATE OF LOUISIANA,
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND SUZY
SONNIER, SECRETARY, LOUISIANA DEPARTMENT OF CHILDREN
AND FAMILY SERVICES
ON
SUPERVISORY WRIT TO THE FORTY-SECOND JUDICIAL
DISTRICT COURT, PARISH OF DESOTO
HU
GHES, J.*
This suit was filed to recover damages for personal injuries suffered by an
infant while in the custody of the Louisiana Department of Children and Family
Services (“DCFS”) and in the physical care of foster parents. After all other claims
were dismissed except allegations that DCFS was vicariously liable for the actions
of the foster mother, based not only on an employer-employee relationship, but also
based on DCFS’s non-delegable duty as the legal custodian of the child, as set forth
in Miller v. Martin , 02 -0670 (La. 1/28/03), 838 So.2d 761, DCFS filed a
peremptory exception pleading the objection of no cause of action, claiming La. R.S.
42:1441.1 bars the application of La. C.C. art. 2320 to DCFS. The district court
denied the peremptory exception, and the appellate court denied the ensuing writ
application filed by DCFS; we affirm the district court and remand for further
proceedings.

2

FACTS AND PROCEDURAL HISTORY
The child at issue in this case, Gra yson, was born on February 14, 2013 to a
mother with a significant history of drug abuse, and Grayson allegedly had drugs in
his system at birth. Shortly thereafter, in March of 2013, Grayson was adjudicated
a “child in need of care, ”1 placed in the custody of DCFS, and entrusted to the
physical care of foster parent Samantha Gafford. While in the care of Samantha
Gafford, Grayson suffered severe personal injuries, which included brain damage,
blindness, and seizures; it was also alleged that the child had bite marks on his thigh
and abdomen. Gafford did not disclose these injuries until Grayson was taken to the
hospital on or about May 2, 2013.
The instant suit for Grayson’s personal injuries was initially instituted on May
1, 2014 by his birth mother, who asserted that Samantha Gafford intentionally and
negligently caused Grayson’s injuries; that DCFS was liable under 42 U.S.C. §§
1983 and 1988; that DCFS was negligent , inter alia, in its hiring, supervising, and
training of Gafford; and that DCFS was liable for Grayson’s damages vicariously,
pursuant to its employment of Gafford and its non-delegable duty as his legal
custodian.2
When Grayson was subsequently adopted by Jason and Johnna Kunath, they
were substituted as plaintiffs in this suit, in August of 2018. In 2019, the plaintiffs’
federal claims, under 42 U.S.C. §§ 1983 and 1988, and state claims, based on
DCFS’s alleged negligence related to Gafford’s hiring, training, and supervision, as
well as with respect to DCFS’s alleged deficient promulgation and implementation

1 See La. Ch.C. art. 601 et seq.

2 The petition alleged that foster parent Samantha Gafford was “an agent and/or employee ” of
DCFS and that the injuries sustained by Grayson “ were sustained while in the custody of
Defendant Gafford, who was at all times acting in the course and scope of her employment as a
foster parent by the DCFS ”; “[a]ccordingly, DCFS is liable, vicariously and in solido, to the
Petitioner for all damages arising from the injuries received by [Grayson], while in the custody of
Defendant Samantha Gafford.” The petition also stated that the duty of DCFS was “ to care for
and protect [Grayson], by virtue of its custody of the child” which is “a non-delegable duty.”

3

of appropriate policies and procedures to prevent the abuse of foster children by
foster parents, were dismissed on the parties’ stipulated judgments, signed in May
of 2019 and December of 2019, respectively.
Thereafter, the only remaining bases of liability, as to DCFS, were pursuant
to allegations that DCFS was vicariously liable for the actions of Samantha Gafford
based on its employer -employee relationship and that DCFS was liable for
Grayson’s injuries under its non-delegable duty as his legal custodian, pursuant to
this court’s holding in Miller v. Martin , 02-0670 (La. 1/28/03), 838 So.2d 761.
Citing La. R.S. 42:1441.1 , DCFS filed a peremptory exception pleading the
objection of no right of action, on May 29, 2020, which was subsequently denied by
the district court in July of 2020 (on concluding that it was “bound to follow
Miller”). The appellate court denied the writ application of DCFS, citing Herlitz
Construction Company v. Hotel Investors of New Iberia, Inc. , 396 So.2d 878
(La. 1981) (“A court of appeal has plenary power to exercise supervisory jurisdiction
over district courts and may do so at any time, according to the discretion of the
court. In c ases in which peremptory exceptions are overruled, appellate courts
generally do not exercise supervisory jurisdiction, since the exceptor may win on the
merits or may reurge the exception on appeal. ”). This court granted the writ
application of DCFS.
DCFS asserts in this court that the district court erred: (1) in denying its
exception of no cause of action “ as there is a statutory bar to finding DCFS
vicariously liable for actions of a foster parent ” and “even assuming vicarious
liability could be appl ied under Civil Code article 2320, there are no allegations
supporting such a cause of action”; and (2) in denying its exception of no cause of
action as the plaintiffs’ claim for punitive damages “as there is no law providing for
the recovery of punitive damages from DCFS.”

4

LAW AND ANALYSIS
In arguing that it should not be held liable for the actions of foster parent
Samantha Gafford, DCFS asserts that that the holding of this court in Miller v.
Martin (relying on Vonner v. State of Louisiana, through the Department of
Public Welfare, 273 So.2d 252 (La. 1973)), runs afoul of La. R.S. 42:1441.1, which
provides:
Civil Code Article 2320 and other laws imposing liability on a
master for the offenses and quasi offenses of his servant shall not extend
or apply to and shall not impose liability on the state for the offenses
and quasi offenses of any person who is not expressly specified by R.S.
13:5108.2(A) to be an official, officer, or employee of the state entitled
to indemnification under R.S. 13:5108.2.

DCFS st ates that “there are no allegations that DCFS could have prevented the
alleged actions of the foster parent and, in turn, failed to do so.”
3
DCFS asks this cour t: to overturn the Miller v. Martin decision, which it
claims is “ unconstitutional due to its encr oachment upon exclusive legislative
authority” as “R.S. 42:1441.1 statutorily bars Plaintiffs’ vicarious liability claim
against DCFS”; to reverse the district court denial of its exception of no cause of
action; and to dismiss DCFS from this suit.
We first note that neither Vonner nor Miller discussed La. R.S. 42:1441.1;
the former because the statute was not enacted until 1985, after the 1973 decision
was rendered, and the latter because it was not raised by the parties. Therefore, it is
necessary to first examine whether the Legislature intended La. R.S. 42:1441.1 to be

3 We note that this court has previously commented on the requirement that “ responsibility only
attaches ... when the masters or employers ... might have prevented the act which caused that
damages” in Blanchard v. Ogima, 253 La. 34, 43- 44, 215 So.2d 902, 905 (1968) (cited by the
Legislature in La. R.S. 42:1441.4, setting forth “[l]egislative findings and purposes” for 1985 La.
Acts, No. 451, discussed infra), stating: “ Louisiana jurisprudence has not interpreted this
restriction literally, and the demands of modern commerce and the needs of society would not
permit such a stringent and severe limitation of the liability of a master for his servant. However,
by inquiring into the overall relationship of the parties and the element of control, our jurisprudence
has established reasonable definitions and limitations of vicarious liability to replace the literal
codal restriction which has fallen into desuetude. ” Because of our disposition herei n we find it
unnecessary to reach this issue in this case.

5

applicable to a cases such as the one now before this court.
As this court stated in Milbert v. Answering Bureau, Inc., 13-0022, p. 8 (La.
6/28/13), 120 So.3d 678, 684, in order to determine legislative will, we must start
with the language of the statute itself, interpreting the words used as they are
generally understood; this court is bound to a strict interpretation of the plain
language of the statutory provisions when the words of a statute are clear and
unambiguous and the application of the law does not lead to absurd consequences.
The language of R.S. 42:1441.1 clearly limits the liability of the State for
offenses and quasi-offenses, under La. C.C. art. 23204 and other laws imposing such
liability for its “servants,” to only those officials, officers, or employees (referred to
in R.S. 13:5108. 1 as “covered individual[s] ”) expressly specified as entitled to
indemnification “under R.S. 13:5108.2.”
The former text of La. R.S. 13:5108.2 now appears in La. R.S. 13:5108.1, 5

4 Civil Code Article 2320 provides:

Masters and employers are answerable for the damage occasioned by their
servants and overseers, in the exercise of the functions in which they are employed.
Teachers and artisans are answerable for the damage caused by their
scholars or apprentices, while under their superintendence.
In the above cases, responsibility only attaches, when the masters or
employers, teachers and artisans, might have prevented the act which caused the
damage, and have not done it.
The master is answerable for the offenses and quasi-offenses committed by
his servants, according to the rules which are explained under the title: Of quasi -
contracts, and of offenses and quasi-offenses.

5 See Morgan v. Laurent , 06-0467, p. 6 (La. App. 5 Cir. 12/27/06), 948 So.2d 282, 285, writ
denied, 07-0178 (La. 3/16/07), 952 So.2d 701 ( “[T]he list of specified employees for which the
state may be held vicariously liable is now found in LSA -R.S. 13:5108.1 since LSA -R.S.
13:5108.2 has been repealed. ”). By means of 2000 La. Acts, 1st Ex. Sess., No. 65, La. R.S.
13:5108.2 was repealed by Section 2 of that Act. In addition, Act No. 65 revised and re -enacted
La. R.S. 13:5108.1, combining the subject matter and some text previously appearing in both La.
R.S. 13:5108.1 and La. R.S. 13:5108.2, along with new text. A fter Act No. 65 was passed,
pursuant to the authority granted to it by 2015 House Concurrent Resolution No. 84, the Louisiana
State Law Institute re-designated La. R.S. 40:1299.91 (originally enacted by 1978 Acts, No. 597,
§ 1) as La. R.S. 13:5108.2 to read: “ The Department of Justice shall provide any worker of the
child protection services division of the office of children and family services of the Department
of Children and Family Services with a legal defense in any civil action arising from any activity
within the course and scope of the worker ’s employment.” Revised Statute 13:5108.2, as it now
reads, obviously does not address who is considered a “ covered individual ” for purposes of
indemnification by the State. Notwithstanding, La. R.S. 42:1441.1 continues to inaccurately refer
to La. R.S. 13:5108.2 and should now reference La. R.S. 13:5108.1 instead.

6

and R.S. 13:5108.1 states in pertinent part:
A. Indemnification.
(1) The state shall defend and indemnify a covered individual
against any claim, demand, suit, complaint, or petition seeking damages
filed in any court over alleged negligence or other act by the individual,
including any demand under any federal statute when the act that forms
the basis of the cause of action took place while the individual was
engaged in the performance of the duties of the individual ’s office,
employment with the state, or engaged in the provision of services on
behalf of the state or any of its departments pursuant to Paragraph
(E)(2) of this Section.
* * *
E. Definition.
As used in this Section “covered individual” includes:
(1) An official, officer, or employee holding office or
employment:
(a) In the executive branch of state government or in any
department, office, division, or agency thereof.
(2) A physician or dentist who either contracts with or provides
services on behalf of the state or any of its departments, whether
compensated or not, (a) in treating and performing evaluations of
persons when such persons cause harm to third parties, or (b) in
providing professional assistance to the contracting agency when such
professional assistance is alleged to have caused harm to third parties.
For the purposes of this Section, such physicians or dentists who
provide services under contract shall be deemed to be employees of the
contracting agency.
* * *
(Emphasis added.)
The plain language of R.S. 42 :1441.1 limits the liability of the State to only
“offenses and quasi offenses” committed by officials, officers, or employees
specified as entitled to indemnification in R.S. 13:5108.1. Further, R.S.
13:5108.1(A)(1) specifies that the right to indemnific ation is extended only to “a
covered individual” when “the act that forms the basis of the cause of action took
place while the individual was engaged in the performance of the duties of the
individual’s office, employment with the state , or engaged in the provision of
services on behalf of the state or any of its departments pursuant to Paragraph
(E)(2) of this Section.” (Emphasis added.)
DCFS contends that foster mother Samantha Gafford was not a “ covered
individual” under La. R.S. 13:5108.1, which encompasses an “employee holding

7

office or employment” (emphasis added), because it asserts Gafford was not a “state
office holder, employed by the state, nor [did] she provide the services set out in
Paragraph (E)(2).” While DCFS may ultimately be able t o prove these assertions,
no evidence has yet been submitted to the district court, as the district court was only
asked to rule on DCFS’s no cause of action exception, which is decided exclusively
on the allegations of a plaintiff’s petition. See United Teachers of New Orleans v.
State Board of Elementary & Secondary Education , 07-0031, p. 9 (La. App. 1
Cir. 3/26/08), 985 So.2d 184, 193 ( “In ruling on an exception raising the objection
of no cause of action, the court must determine whether the law affords any relief to
the claimant if he proves the factual allegations in the petition at trial. ... Any
reasonable doubt concerning the sufficiency of the petition must be resolved in favor
of finding that a cause of action has been stated.”).
6
The plaintiffs’ petition does allege, inter alia, that Gafford “ acted in her
capacity as a foster parent selected, trained, and employed by DCFS as its agent to
provide for the care, supervision, health, and welfare of the infant Grayson, ” that
“Gafford was an agent and/ or employee of DCFS ,” and that she was “at all times
pertinent hereto acting in the course and scope of her employment as a foster parent
by DCFS.” (Emphasis added.)
A “covered individual” under La. R.S. 13:5108.1(E)(1) includes “ [a]n ...

6 The function of the peremptory exception of no cause of action is to test the legal sufficiency of
the petition, which is done by determining whether the law affords a remedy on the facts alleged
in the pleading. Ramey v. DeCaire, 03- 1299, pp. 7- 8 (La. 3/19/04), 869 So.2d 114, 118- 19.
Louisiana has chosen a system of fact pleading; therefore, it is not necessary for a plaintiff to plead
the theory of his case in the petition. Id. The burden of demonstrating that the petition states no
cause of action is upon the mover. Id. The pertinent question is whether, in t he light most
favorable to plaintiff and with every doubt resolved in plaintiff’s behalf, the petition states any
valid cause of action for relief. Id. The court reviews the petition and accepts well -pleaded
allegations of fact as true; no evidence may b e introduced to support or controvert the exception
(see id., 03-0129 at p. 7, 869 So.2d at 118, and La. C.C.P. art. 931), unless evidence is admitted
without objection to enlarge the pleadings ( see Woodland Ridge Association v. Cangelosi , 94-
2604, p. 3 (La. App. 1 Cir. 10/6/95), 671 So.2d 508, 510). The issue in ruling on the no cause of
action exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief
sought. Ramey v. DeCaire , 03-1299 at p. 7, 869 So.2d at 118. Every reasonable interpretation
must be accorded the language used in the petition in favor of maintaining its sufficiency and
affording the plaintiff the opportunity of presenting evidence at trial. Badeaux v. Southwest
Computer Bureau, Inc., 05-0612, p. 7 (La. 3/17/06), 929 So.2d 1211, 1217.

8

employee holding office or employment ... [i]n the executive branch of state
government or in any department, office, division, or agency thereof.” (Emphasis
added.) As stated in La. R.S. 36:4(10), DCFS is one of the twenty departments
allowed to this state ’s executive branch of government by La. Const. Art. IV, § 1,
and La. Const. Art. 14, § 6.
When ruling on an exception of no cause of action, a plaintiff ’s allegations
are accepted as true. See Scheffler v. Adams & Reese, LLP , 06-1774, p. 5 (La.
2/22/07), 950 So.2d 641, 646. The plaintiffs have alleged that Samantha Gafford
was employed as a foster parent by DCFS and that she caused injury to Grayson
while in the course and scope of her employment as a foster parent. Therefore, if
plaintiffs can prove these allegations, Gafford may be found to have been a “covered
individual” under La. R.S. 13:5108.1 and a person for whom R.S. 42:1441.1 would
extend liability to the State for her offenses and quasi-offences under C.C. art. 2320
(“Masters and employers are answerable for the damage occasioned by their servants
and overseers, in the exercise of the functions in which they are employed. ”). See
Garrett v. Fleetwood, 93-2382, p. 7 (La. App. 4 Cir. 9/29/94), 644 So.2d 664, 669,
writ denied, 94-3081 (La. 2/17/95), 650 So.2d 253 (“R.S. 42:1441.1 ... does not limit
the State’s liability for only negligent acts of its employees, but rather codal article
2320 imposes vicarious liability on the State for all actions of the individuals
specifically listed in 13:5108.[1].”). (Emphasis added.)
In denying DCFS ’s writ application, on the basis of Herlitz Construction
Company v. Hotel Investors of New Iberia, Inc., supra, the appellate court in this
case undoubtedly determined that, after some evidence on the nature of foster mother
Samantha Gafford’s employment with DCFS is introduced into the record (which
has not yet occurred), the trial court will be in a better procedural position to decide
the matter on either a subsequent re-urging of a no cause of action exception, on the
filing of a motion for summary judgment, or at a trial of this matter , rather than

9

merely on the basis of the allegations of the petition (to which a determination on
the no cause of action exception currently before this court is restricted).
Accordingly, we find no error in the district court’s denial of the exception of
no cause of action filed by DCFS. Accepting, for the purpose of the exception, the
truth of the allegations o f the plaintiffs’ petition, plaintiffs have stated a cause of
action.
7
DECREE
We affirm the district court ruling, denying the exception pleading the
objection of no cause of action, filed by the Louisiana Department of Children and
Family Services, and w e remand this matter to the district court for further
proceedings in accordance with the forgoing.
AFFIRMED AND REMANDED.

7 We find it unnecessary to express an opinion on any claim made by plaintiffs under La. C.C. art.
2315.8 (authorizing, in addition to general and special damages, the award of exemplary damages
upon proof that the injuries on which the action is based were caused by a wanton and reckless
disregard for the rights and safety of a family or household member, as defined in R.S. 46:2132,
through acts of domestic abuse resulting in serious bodily injury or severe emotiona l and mental
distress, regardless of whether the defendant was prosecuted for his or her acts), since such
damages would be contingent upon the plaintiffs first prevailing on establishing the liability of
DCFS at the trial of this matter.

09/30/21
SUPREME COURT OF LOUISIANA
NO. 2020-C-01266
JASON AND JOHNNA KUNATH, INDIVIDUALLY AND AS
NATURAL TUDOR AND TUTRIX OF GRAYSON KUNATH, MINOR
VS.
SAMANTHA FAYE GAFFORD, THE STATE OF LOUISIANA,
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND SUZY
SONNIER, SECRETARY, LOUISIANA DEPARTMENT OF
CHILDREN AND FAMILY SERVICES
On Supervisory Writ to the 42nd Judicial District Court, Parish of Desoto
WEIMER, C.J., concurring.
Based on the facts and procedural posture of the case, I agree with the majority
opinion affirming the district court’s denial of DCFS’s exception of no cause of
action as it relates to plaintiffs’ claims of vicarious liability arising under La. R.S.
42:1441.1.
The issue that must be currently resolved is whether La. R.S. 42:1441.1
prohibits the application of vicarious liability based on the facts of this case.
Louisiana R.S. 42:1441.1 provides that the state can only be vicariously liable for
those who are officials, officers or employees of the state.1 The majority correctly
1 La. R.S. 42:1441.1 provides:
Civil Code Article 2320 and other laws imposing liability on a master for the
offenses and quasi offenses of his servant shall not extend or apply to and shall not
impose liability on the state for the offenses and quasi offenses of any person who is
not expressly specified by R.S. 13:5108.2(A) to be an official, officer, or employee
of the state entitled to indemnification under R.S. 13:5108.2.
La. R.S. 13:5108.2 was repealed by 2000 La. 1st Ex. Session, Act 65, § 1. The substance of La.
R.S. 13:1508.2 was incorporated into La. R.S. 13:5108.1, which in relevant part provides:
(A)(1) The state shall defend and indemnify a covered individual against any
claim, demand, suit, complaint, or petition seeking damages filed in any court over
alleged negligence or other act by the individual, including any demand under any

points out that plaintiffs’ petition alleges the foster mother was employed by DCFS
and that she caused injury to the foster child while in the course and scope of that
employment. Because the issue of DCFS’s liability was raised in an exception of no
cause of action, the district court was required to accept the allegations of plaintiffs’
petition as true and, thus, correctly denied DCFS’s exception. To be clear, my
agreement with the majority on this issue does not mean that I find the foster mother
was an employee of DCFS. Should DCFS produce evidence that the foster mother
is not an employee, it will be able to raise this issue again in another exception or by
motion for summary judgment. Furthermore, assuming the foster mother is neither
an official, officer nor employee, DCFS would not be vicariously liable for her
actions based on the clear language of La. R.S. 42:1441.1.
My position in this case is not inconsistent with former Justice Victory’s
dissent in Miller v. Martin, 02-0670 (La. 1/28/03), 838 So.2d 761, with which I
agreed. In Miller, this court reaffirmed the holding of Vonner v. State, Dep’t. of
Pub. Welfare, 273 So.2d 252 (La. 1973), imposing a nondelegable duty of care on
DCFS as the legal custodian of the child. As evidenced by my dissent in Miller, I
believed–and continue to believe–that such holding was in error because there is no
legal justification to impose a nondelegable duty of care on DCFS. See Miller, 838
So.2d at 770-71 (Victory, J., dissenting) (Weimer, J., dissenting for the reasons
assigned by J. Victory). Although La. R.S. 42:1441.1 was not at issue in Vonner or
Miller, this statutory provision provides further support for not following those
decisions.
federal statute when the act that forms the basis of the cause of action took place
while the individual was engaged in the performance of the duties of the individual’s
office, employment with the state, or engaged in the provision of services on behalf
of the state or any of its departments pursuant to Paragraph (E)(2) of this Section.
2

Although I find plaintiffs’ petition sufficiently states a cause of action for
liability of DCFS under La. R.S. 42:1441.1, I also note that there is no remaining
cause of action for liability of DCFS arising out of breach of its statutory duties as the
legal custodian of the minor child. While there are certainly statutory duties imposed
on DCFS relative to care of foster children,2 all of the plaintiffs’ claims related to
such allegations of fault on the part of DCFS in this case have already been dismissed
with prejudice. In my opinion, the only potential remaining claim against DCFS is
not based on fault, but rather based on a theory of vicarious liability for the actions
of the foster parent under La. R.S. 42:1441.1, and only if it is determined that the
foster mother was an employee of DCFS.
2 See, e.g., La. R.S. 46:1401, et seq.; La. Ch.C. art. 116(12).
3

09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2020-CC-01266
J
ASON AND JOHNNA KUNATH, INDIVIDUALLY AND AS NATURAL
TUTOR AND TUTRIX OF GRAYSON KUNATH, MINOR
VS.
SAMANTHA FAYE GAFFORD, THE STATE OF LOUISIANA,
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND SUZY
SONNIER, SECRETARY, LOUISIANA DEPARTMENT OF CHILDREN
AND FAMILY SERVICES
O
N SUPERVISORY WRIT TO THE 42ND JUDICIAL DISTRICT COURT,
PARISH OF DESOTO
C
richton, J., concurs and assigns reasons:
I
agree with the majority’s conclusion that the district court did not abuse its
discretion in overruling the exception of no cause of action based on the procedural
posture of this case. I write separately to note that I believe the issue of whether the
plain language of La. R.S. 42:1441.1 prohibits the application of vicarious liability
in this case under Miller v. Martin , 2002 -0670 (La. 1/28/03), 838 So. 2d 761,
warrants further study. For the foregoing reasons, I concur.

SUPREME COURT OF LOUISIANA
No. 2020-CC-01266
JASON AND JOHNNA KUNATH, INDIVIDUALLY AND AS NATURAL
TUTOR AND TUTRIX OF GRAYSON KUNATH, MINOR
VS.
SAMANTHA FAYE GAFFORD, THE STATE OF LOUISIANA,
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND SUZY
SONNIER, SECRETARY, LOUISIANA DEPARTMENT OF CHILDREN
AND FAMILY SERVICES
On Supervisory Writ to the 42nd Judicial District Court,
Parish of Desoto
GRIFFIN, J., concurs and assigns reasons.
I pretermit the issue as to whether La. R.S. 42:1441.1 statutorily abrogates the
non-delegable duty articulated in Vonner v. State T hrough Dep’t. of Pub. Welfare ,
273 So.2d 252 (La.1973) and Miller v. Martin , 02-0670 (La. 1/28/03), 838 So.2d
761. I further note the absence of any specific legislative response in the eighteen
years since this Court’s opinion in Miller was handed down. See Borel v. Young ,
07-0419, pp. 21-22 (La. 11/27/07), 989 So.2d 42, 65. Should this prolonged silence
not indicate its will, it is the prerogative of the legislature to respond accordingly.
09/30/21