Ella Rogers v. Louisiana Dept. of Public Safety & Corrections

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1060

ELLA ROGERS, ET AL.

VERSUS

STATE OF LOUISIANA, THROUGH THE
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, ET AL.

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 41,677
HONORABLE KATHY A. JOHNSON, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

Charles S. Norris, Jr.
Attorney at Law
Post Office Box 400
Vidalia, Louisiana 71373
(318) 336-1999
Counsel for Plaintiffs/Appellees:
Ella Rogers
Michael Jones

J. Albert Ellis
Assistant Attorneys General
Louisiana Department of Justice
Post Office Box 1710
Alexandria, Louisiana 71309
(318) 487-5944
Counsel for Defendants/Appellants:
State of Louisiana, through the Department of Public Safety and Corrections
Louisiana State Police
John C. Nelson

SULLIVAN, Judge.

Defendants, the State of Louisiana, through the Department of Public Safety

and Corrections (LDPSC), and Louisiana State Trooper John C. Nelson (Trooper

Nelson), appeal a judgment rendered in favor of Plaintiffs, Ella Rogers and Michael

Jones, following a trial on the merits. For the following reasons, we affirm.

ISSUE

The question that we must answer is whether the immunity provisions of the

Louisiana Homeland Security and Emergency Assistance and Disaster Act and/or the

statute granting immunity to the State and its employees for operational activities

conducted in the aftermath of Hurricane Katrina are properly classified as affirmative

defenses. If so, we must affirm the trial court’s refusal to allow Defendants to rely

on the immunities because they did not timely assert the affirmative defenses. If not,

we must consider Plaintiffs’ assertion that the conduct of Trooper Nelson rose to the

level of gross negligence or willful misconduct, thus triggering exceptions to the

claimed immunities.

FACTS AND PROCEDURAL HISTORY

Plaintiffs were injured on September 8, 2005, in Concordia Parish, Louisiana,

when the vehicle in which they were traveling was rear-ended by a vehicle being

driven by Trooper Nelson when he fell asleep at the wheel. Plaintiffs filed suit

against the LDPSC and Trooper Nelson on August 9, 2006. Defendants answered the

suit on September 14, 2006, denying liability.1 Upon motion of Plaintiffs in

1
In their answer, Defendants asserted the limitations of liability for suits against the State as
to damages and legal interest provided in La.R.S. 13:5106 and La.R.S. 13:5112, as well as the
affirmative defense of immunity from liability for employees of public entities performing
discretionary acts during the course and scope of their employment pursuant to La.R.S. 9:2798.1.

1

September of 2006, a scheduling conference was held at which time the matter was

set for bench trial on April 5, 2007, with a backup date of April 19, 2007.

On April 5, 2007, Defendants filed a “Motion for Summary Judgment Urging

Exception of No Cause of Action and Exception of No Right of Action.” Defendants

asserted that they were absolutely immune from liability, pursuant to La.R.S. 29:735

and La.R.S. 92800.17, because the accident which injured Plaintiffs took place while

Trooper Nelson was fulfilling emergency response activities pursuant to the State of

Emergency declared by Louisiana Governor Kathleen Blanco following Hurricane

Katrina. See Gubernatorial Proclamation No. 48 KBB 2005. Defendants’ motion was

set for contradictory hearing on April 16, 2007.

Plaintiffs responded with a motion to strike affirmative defenses, pursuant to

La.Code Civ.P. art. 964, on the grounds that Defendants should not be allowed to

disguise affirmative defenses as exceptions, so as to avoid La.Code Civ.P. art. 2005’s

requirement that affirmative defenses shall be set forth in the answer. To allow

Defendants to assert affirmative defenses at such a late date and on the eve of trial,

Plaintiffs argued, would amount to trial by ambush. The trial court set Plaintiffs’

motion for hearing on April 16, 2007 as well. In the meantime, Plaintiffs filed an

opposition to Defendants’ motion for summary judgment.

Following the April 16, 2007 hearing, the trial court issued a written judgment

granting Plaintiffs’ motion to strike affirmative defenses and denying as moot

Defendants’ motion for summary judgment urging exceptions.2 Defendants filed a

2
It appears that the motions argued on April 16, 2007, were heard by Judge Brackin, who was
sitting Pro Tempore. The judgment disposing of the motions was signed by Judge Brackin and the
trial judge mentioned in the trial transcript that an Ad Hoc judge had ruled on the prior motions.

2

notice of intent to apply for writ of review of the April 16, 2007 judgment, but

according to the record, no writ was ever sought.

Trial on the merits took place on April 19, 2007. Prior to the start of the trial,

Defendants filed a motion for leave to file an amended answer setting forth their

claims of immunity pursuant to La.R.S. 29:735 and La.R.S. 9:2800.17, which the trial

court promptly denied. Nevertheless, Defendants were allowed to proffer their

motion and amended answer. After Plaintiffs had presented their evidence and rested

their case, Defendants filed an exception of no right of action, again claiming

immunity pursuant to the aforementioned statutes. The trial court denied the

exception of no right of action in open court. It then stated that it had found liability

on the part of the State, and the parties were given ten days to submit memoranda on

damages.

Written judgment was rendered on May 24, 2007.3 Ella Rogers was awarded

$9,016.86 in medical special damages and $25,000.00 in general damages. Michael

Jones was awarded $10,480.00 in medical special damages, $5,016.95 in lost wages,

and $25,000.00 in general damages. Defendants timely filed a motion for suspensive

appeal of the May 24, 2007 judgment.

In their sole assignment of error, Defendants assert that the trial court erred in

denying their peremptory exception of no right of action where there was no evidence

in the record establishing that plaintiffs possessed a right of action in light of a

specific statute denying plaintiffs such an action.

3
We note that this judgment did not reflect the court’s having denied Defendants’ exception
of no right of action on May 24, 2007, and apparently no other written judgment to that effect has
been rendered.

3

DISCUSSION

An appellate court may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d

840 (La.1989). “If the trial court’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 844.

“An affirmative defense raises new matter which, assuming the allegations in

the petition to be true, constitutes a defense to the action and will have the effect of

defeating plaintiff’s demand on its merits.” Webster v. Rushing, 316 So.2d 111, 114

(La.1975). The defendant’s answer shall set forth all affirmative defenses. La.Code

Civ.P. arts. 1003 and 1005. “In the absence of inclusion of an affirmative defense in

the answer, evidence can be adduced thereon only in the absence of an objection

thereto.” Red Barn Chems., Inc. v. Lassalle, 350 So.2d 1315, 1317 (La.App. 3 Cir.

1977).

As this court previously noted in Rider v. Fontenot, 463 So.2d 951, 956

(La.App. 3 Cir. 1985), cited with approval in Patterson v. State, 95-1668 (La.App.

3 Cir. 12/11/96), 685 So.2d 473, writs denied, 97-27, 97-108 (La. 2/21/97), 688 So.2d

513:

The policy behind the requirement that affirmative defenses be
raised in answer is sensible and laudable. Because affirmative defenses
raise matters for judicial resolution outside of issues raised by plaintiff’s
petition, plaintiff must be made aware of these matters at an early stage
so that plaintiff can prepare an opposition to the defense and adjust his
case, if necessary, in light of the new facts and issues raised by the
affirmative defense. If the affirmative defense is allowed despite the
defense not being raised in answer, the result is a surprise “trial by
ambush” that unfairly aids the defendant, who knew about the defense
even though plaintiff was kept in ignorance of the defense.

4

In Molina v. City of New Orleans, 01-1411 (La.App. 4 Cir. 10/2/02), 830 So.2d

994, writ denied, 03-156 (La. 3/28/03), 840 So.2d 573, the fourth circuit classified

immunity as an affirmative defense which must be specifically pleaded in the

defendant’s answer and thus concluded that the trial court was within its discretion

in refusing to allow the assertion of a new defense one day before trial, as the defense

clearly was not timely asserted.4 Similarly, this court concluded that the trial court

did not err in precluding a defendant from presenting evidence of affirmative defenses

where the defendant had failed to specifically plead these defenses, as required by

La.Code Civ.P. art. 1005, until after commencement of the trial and without first

obtaining leave of court. Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97),

696 So.2d 196.5

Defendants claim that the immunities granted in La.R.S. 29:735 and La.R.S.

9:2800.17 are “absolute and without exception,”6 unless Trooper Nelson’s having

fallen asleep at the wheel is found to constitute gross negligence or willful

misconduct, which would void the protection of immunity offered in those statutes.

They further submit that Trooper Nelson’s actions do not rise to such a level.

Plaintiffs counter that the trial court was correct in characterizing the

immunities provided in the statutes at issue as being affirmative defenses and in

granting their motion to strike affirmative defenses. Plaintiffs point out that the

4
The statute at issue in Molina was La.R.S. 9: 2798.1 which concerns the policymaking or
discretionary acts or omissions of public entities or their officers or employees. See also White v.
City of New Orleans, 00-2683, (La.App. 4 Cir. 1/9/01), 806 So.2d 675.
5
But see Zulli v. Coregis Ins. Co., 05-155 (La.App. 5 Cir. 7/26/05), 910 So.2d 437, writ
denied, 05-2226 (La. 2/17/06), 924 So.2d 1017 (where the fifth circuit held that the immunities
found in La.R.S. 9:2791 and La.R.S. 9:2795 were affirmative defenses which needed to be
specifically pled, but nonetheless concluded that the trial court did not abuse its discretion in
allowing the defendants to amend their answer to assert the affirmative defenses that had been raised
in a motion for summary judgment filed less than three weeks before the trial date).
6
Defendants do not cite any jurisprudence in support of this sweeping proposition.

5

Defendants failed to raise the defenses until two weeks prior to trial and, when they

finally did so, they attempted to disguise the defenses as exceptions and included

them in a motion for summary judgment. They submit that Defendants were simply

resubmitting the previously denied arguments when they reasserted the exception of

no right of action at trial after the close of Plaintiffs’ evidence and that the trial court

properly rejected the rehashed arguments.

We begin our analysis by examining the statutes at issue. Louisiana Revised

Statutes 29:735(A)(1), entitled “Immunity of personnel,” is part of the Louisiana

Homeland Security and Emergency Assistance and Disaster Act and provides as

follows:

Neither the state nor any political subdivision thereof, nor other
agencies, nor, except in case of willful misconduct, the agents’
employees or representatives of any of them engaged in any homeland
security and emergency preparedness activities, while complying with
or attempting to comply with this Chapter or any rule or regulation
promulgated pursuant to the provisions of this Chapter shall be liable for
the death of or any injury to persons or damage to property as a result of
such activity.

Louisiana Revised Statutes 9:2800.17(A)(1), entitled “Immunity of state and

political subdivisions; operational activities related to Hurricanes Katrina and Rita,”

provides as follows:

The state, or any political subdivision thereof, or any public
entity, meaning and including the state and any of its branches,
departments, offices, agencies, boards, commissions, instrumentalities,
officers, officials, employees, and their agents, employees, contractors,
volunteers, or representatives engaged in any operational decisions or
activities in the aftermath of Hurricanes Katrina and Rita shall not be
civilly liable for the death of, or any injury to, any person or damage to
property as a result of such activity, except in the event of gross
negligence or willful misconduct.

We are convinced that the trial court correctly characterized the immunity

defenses urged by Defendants as affirmative defenses because if the defenses were

6

to apply Plaintiffs’ claims would be defeated on the merits. Our finding is bolstered

by the fact that Defendants specifically pled the affirmative defense of immunity

pursuant to La.R.S. 9:2798.1 in their original answer to Plaintiffs’ petition. Given the

fact that Defendants urged the additional immunity defenses at such a late date,

coupled with Plaintiffs immediate objection, the trial court did not err in granting the

motion to strike and not allowing Defendants to rely on the immunity statutes to

defeat Plaintiffs’ claims. Likewise, the trial court did not err in denying Defendants’

exception of no right of action, which essentially amounted to a reassertion of the

affirmative defenses that the trial court had stricken just three days prior to trial.

Having so ruled, we need not determine whether Trooper Nelson’s having fallen

asleep at the wheel and striking the vehicle in which Plaintiffs were traveling

amounted to gross negligence or willful misconduct.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Defendants are cast with all costs of this appeal.

AFFIRMED.

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