Dale Flynn, Jr. v. Tangipahoa Parish Recreation Dist. 39A, North Tangipahoa Soccer Association, Tangipahoa Parish Government, The Louisiana Soccer Association, Jody Johnson, Michael Larry Garafalo, ABC Insurance Company, DEF Insurance Company, GHI Insurance Company, JKL Ins

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

DALE FLYNN, JR. NO. 2021 CW 1603
VERSUS PAGE 1 OF 2

TANGIPAHOA PARISH RECREATION
DIST. 39A, NORTH TANGIPAHOA
SOCCER ASSOCIATION,
TANGIPAHOA PARISH
GOVERNMENT, THE LOUISIANA
SOCCER ASSOCIATION, JODY
JOHNSON, MICHAEL LARRY
GARAFALO, ABC INSURANCE
COMPANY, DEF INSURANCE
COMPANY, GHI INSURANCE
COMPANY, JKL INSURANCE
COMPANY, MNO INSURANCE
COMPANY, AND POR INSURANCE

JUNE 16, 2022

COMPANY

In Re: North Tangipahoa Soccer Association, The Louisiana
Soccer Association, and National Casualty Company,
applying for supervisory writs, 21st Judicial District
Court, Parish of Tangipahoa, No. 20150000445.

BEFORE : McDONALD, LANIER, AND WOLFE, JJ.

WRIT GRANTED. The portion of the district court’s ruling
which denied in part the motion for summary judgment filed by
the North Tangipahoa Soccer Association, the Louisiana Soccer
Association and National Casualty Company is reversed.
Plaintiff asserted claims of direct negligence and vicarious
liability against defendants, the North Tangipahoa Soccer
Association and the Louisiana Soccer Association (collectively
the “Associations”). With regard to the direct negligence
claims, a threshold issue in any negligence action is whether
the defendant owed the plaintiff a duty. Whether a duty is owed
is a question of law. No duty exists to protect against or
control the actions of a third party who causes physical injury
to another unless a special relationship exists to give rise to
such a duty. Blacklege v. Font, 2006-1092 (La. App. Ist Cir.
3/23/07), 960 So.2d 99, 103-4. While an argument could be made
as to a special relationship vis-a-vis coaches and their
players, in this case, we are faced with whether a special
relationship exists between an adult coach of one team
(plaintiff) and an adult assistant coach (defendant, Michael
Larry Garafalo) of the opposing team such that the Associations
owed a duty to the adult coach to protect against or control the
actions of the adult assistant coach of the other team. We have
found no statutory authority or jurisprudence finding that the
Associations have a duty to protect against or control the
unexpected alleged criminal actions of an assistant coach toward
another coach. Moreover, even when such a duty exists,
jurisprudence has found it is only when a party has knowledge
of, or can be imputed with knowledge of, the third party's
intended conduct is the duty to protect invoked. Fredericks v.
Daiquiris & Creams of Mandeville, L.L.C., 2004-0567 (La. App.
Ist Cir. 3/24/05), 906 So.2d 636, 640, writ denied, 2005-1047

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

NO. 2021 CW 1603

PAGE 2 OF 2

(La. 6/17/05), 904 So.2d 706. We find it was simply not
foreseeable that the Associations were required to protect two
adult father-coaches of soccer teams of five and six year old
girls from each other, and no evidence of such knowledge, actual
or imputed, by the Associations was presented.

With regard to the vicarious liability claims, while it is
doubtful that any of the individuals involved, particularly
Michael Larry Garafalo, who allegedly physically assaulted
plaintiff, were agents of the Associations, there is no dispute
that none of these individuals were servants or employees of the
Associations. Pursuant to La. Civ. Code art. 2320, masters and
employers are answerable for the damage occasioned by their
servants and overseers in the exercise of the function in which
they are employed. However, a principal is not liable for the
physical torts of a non-servant agent. The determination of
whether a party may be held vicariously liable for the torts of
another depends on whether the tortfeasor is characterized as a
servant. A servant is defined as one employed to perform
services in the affairs of another and who is subject to the
other's control or right to control with respect to the physical
conduct in the performance of the services. In contrast, a non-
servant agent, although a contributor to the business of his
master, is not such a part of his master's business that his
physical acts and the time to be devoted to the business are
subject to control. Price v. North, 2021-0236 (La. App. Ist
Cir. 10/18/21), 331 So.3d 959, 970-71.

For the foregoing reasons, we find that the Associations
have pointed out to the court the absence of factual support for
one or more elements essential to plaintiff’s claims, and
plaintiff has failed to establish the existence of a genuine
issue of material fact or that defendants are not entitled to
judgment as a matter of law. The motion for summary judgment
filed by defendants, North Tangipahoa Soccer Association, the
Louisiana Soccer Association and National Casualty Company, is
granted, and the remaining claims of plaintiff, Dale Flynn, Jr.,
against these defendants are dismissed.

JMM
WIL
EW

COURT OF APPEAL, FIRST CIRCUIT

aAcut

DEPUTY CLERK OF COURT
FOR THE COURT