Kim Doucet, Et Ux. v. Keith Alleman

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-246

KIM DOUCET, ET UX.

VERSUS

KEITH ALLEMAN, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20111110
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Carol S. Hunter
Assistant Attorney General
556 Jefferson St., 4th Floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Department of Transportation & Development

Frank X. Neuner, Jr.
Jennie P. Pellegrin
NeunerPate
P.O. Box 52828
Lafayette, LA 70505-2828
(337) 237-7000
COUNSEL FOR DEFENDANTS/APPELLEES:
Louisiana Department of Public Safety & Corrections
(Probation & Parole)

Andrew Blanchfield
Keogh, Cox & Wilson, Ltd.
P. O. Box 1151
Baton Rouge, LA 70821
(225) 383-3796
COUNSEL FOR DEFENDANTS/APPELLEES:
Continental Casualty Company
Harley-Davidson Motor Company, Inc.

Ian A. Macdonald
Jones Walker
P. O. Box 3408
Lafayette, LA 70502-3408
(337) 593-7600
COUNSEL FOR DEFENDANTS/APPELLEES:
Progressive Security Insurance Company
Keith Alleman

Franklin J. Foil
Foil Law Firm
P. O. Box 4288
Baton Rouge, LA 70821-4288
(225) 382-3264
COUNSEL FOR DEFENDANT/APPELLEE:
Jerry Jones

Mark R. Pharr, III
Lindsay L. Meador
Galloway, Johnson, Tompkins, Burr & Smith, PLC
328 Settlers Trace Blvd.
Lafayette, LA 70508
(337) 735-1760
COUNSEL FOR DEFENDANT/APPELLEE:
Barrett Moving and Storage Company

Michael J. Remondet, Jr.
Juliette B. Wade
Jeansonne & Remondet
P.O. Box 91530
Lafayette, LA 70509
(337) 237-4370
COUNSEL FOR DEFENDANTS/APPELLEES:
National Casualty Company
Cajun Cycles, Inc. d/b/a Cajun Harley Davidson

Scott A. Dartez
Warren A. Perrin
Perrin, Landry, deLaunay, Dartez & Ouellet
251 La Rue France
Lafayette, LA 70508
(337) 237-8500
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Gaston Doucet
Kim Doucet

Samuel B. Gabb
Joseph R. Pousson, Jr.
Plauche, Smith & Nieset, LLC
P.O. Drawer 1705
Lake Charles, LA 70601
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
Secon, Inc.

Gerard J. Dragna
Eric Winder Sella
Perrier & Lacoste, LLC
365 Canal Street, Suite 2550
New Orleans, LA 70130
(504) 212-8820
COUNSEL FOR DEFENDANT/APPELLEE:
Suddath Relocation Systems of Minnestoa, LLC

Gregory A. Koury
Andrew P. Hill
Koury & Hill, LLC
P. O. Box 52025
Lafayette, LA 70505-2025
(337) 993-1842
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Kim Doucet
Gaston Doucet

Chaz H. Roberts
Bradley Aldrich
Attorney at Law
P. O. Box 53936
Lafayette, LA 70505
(337) 504-3202
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Kim Doucet
Gaston Doucet

GREMILLION, Judge.

The widow and son of Ralph John Doucet appeal the trial court’s grant of

summary judgment in favor of Cajun Cycles, Inc., d/b/a Cajun Harley Davidson

(Cajun Harley). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2010, Doucet was participating in a motorcycle demonstration ride

sponsored by the Harley-Davidson Motorcycle Company and hosted by a local

dealer, Cajun Harley. The test drive began at the Cajun Harley showroom in Scott,

Louisiana and proceeded for about eleven miles. The event involved ten to twelve

motorcycle riders who were allowed to ride motorcycles as a means of test-driving

them. Doucet was tragically killed when Keith Alleman (Alleman), who was

traveling southbound on Louisiana Highway 93 to visit his probation officer,

veered off the road, overcorrected, and crashed into Doucet as he traveled

northbound on Highway 93.1

Numerous parties were named as defendants; however, the defendant at

issue in this appeal is Cajun Harley. Plaintiffs argue that Cajun Harley did not take

the necessary safety precautions to ensure the safety of the riders on the

promotional ride.

Cajun Harley filed a motion for summary judgment on October 10, 2013,

which was granted in its favor on October 21, 2014. Due to some procedural

irregularities, the signed judgment was amended and reissued on March 31, 2015.

The plaintiffs timely appealed.

1
Alleman was serving two years’ probation following his guilty plea in 2008 to
possession of methamphetamine in violation of La.R.S. 40:967. Following this accident,
Alleman was cited for driving while intoxicated in violation of La.R.S. 14:98, vehicular
homicide in violation of La.R.S. 14:32.1, and careless operation in violation of La.R.S. 14:98.

ISSUES

The plaintiffs assign as error:

1. The Trial Court erred by granting summary judgment in favor
of Cajun Harley because Cajun did not negate any elements of
the Doucet Appellants’ claims and the record contains sufficient
evidence to establish a prima facie case of negligence against
Cajun Harley.

2. The Trial Court erred by granting summary judgment in favor
of the [sic] Cajun Harley because Cajun Harley owed a duty to
act as a reasonable Promotion host and take reasonable safety
measures to protect Promotion participants.

3. The Trial Court erred by granting summary judgment in favor
of Cajun Harley because Cajun Harley breached its duty by
failing to implement reasonable, necessary safety measures to
protect participants in the Promotion.

4. The Trial Court erred by granting summary judgment in favor
of Cajun Harley because the Doucet Appellants’ damages were
foreseeable.

5. The Trial Court erred by granting summary judgment in favor
of Cajun Harley because policy factors articulated by the
Louisiana Supreme Court favor the imposition of liability under
these facts.

DISCUSSION

Summary Judgment Law

We use the de novo standard when reviewing a trial court’s ruling on

summary judgment. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129.

Summary judgment is properly granted “if the pleadings, depositions, 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 mover is entitled to

judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment

procedure is favored under Louisiana law. La.Code Civ.P. art. 966(A)(2).

On motion for summary judgment, the burden of proof remains
with the movant. However, if the moving party will not bear the

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burden of proof on the issue at trial and points out that there is an
absence of factual support for one or more elements essential to the
adverse party’s claim, action, or defense, then the non-moving party
must produce factual support sufficient to establish that he will be
able to satisfy his evidentiary burden of proof at trial. If the opponent
of the motion fails to do so, there is no genuine issue of material fact
and summary judgment will be granted.

Bufkin v. Felipe’s Louisiana, LLC, 14-0288, p. __ (La. 10/15/14), __ So.3d __, __.

The duty-risk analysis applies to all negligence claims brought pursuant to

La.Civ.Code art. 2315 to determine if a party is liable to another under the

particular facts of the case.

[A] plaintiff must prove five separate elements: (1) the defendant had
a duty to conform his or her conduct to a specific standard of care; (2)
the defendant failed to conform his or her conduct to the appropriate
standard of care; (3) the defendant’s substandard conduct was a cause-
in-fact of the plaintiff’s injuries; (4) the defendant’s substandard
conduct was a legal cause of the plaintiff’s injuries; and (5) actual
damages.

Christy v. McCalla, 11-0366, pp. 8-9 (La.12/6/11), 79 So.3d 293, 299 (citations

omitted). The threshold question is “whether the defendant owed the plaintiff a

duty, and whether a duty is owed is a question of law.” Bufkin, __ So.3d at __.

In his deposition, Alleman stated that because he is a motorcycle enthusiast

he was distracted by the motorcycle procession, which caused him to leave the

road. He stated:

Q. In your opinion, if the motorcycles weren’t there would you have
gone off the road?

....

A. No, I wouldn’t have.

Q. Did the motorcycles distract you?

A. Yes. Just because I’m a motorcyclist and I’m always looking.

....

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Q. When you are riding around, do you typically notice other people
riding on motorcycles?

A. Yes.

Q. Is that because you are a motorcycle enthusiast?

A. Yes.

....

Q. You stated earlier that this accident occurred because you saw the
motorcycles and they distracted you and you left the roadway; is that
correct?

A. That’s what I said.

Q. What was it about these motorcycles that distracted you such that
you would have left the roadway in that curve that you had negotiated
prior to this and were familiar with?

A. Nothing in particular. It’s just what distracted me that took my
eyes off the road for a little while.

Q. In the past before this accident when you had seen other groups of
motorcycles traveling on roadways, why didn’t they distract you like
this group did?

A. Oh, they distracted me. I just didn’t leave the roadway.

Q. Is it fair to say that whenever you’re driving and see a motorcycle
or group of motorcycles your eyes are drawn in that direction because
you are a motorcycle enthusiast?

A. Yes.

Q. So it was not necessarily this group of motorcycles in particular, it
was just motorcycles that distracted you?

A. Correct.

Plaintiffs argue that Cajun Harley had a duty to enact reasonable safety

measures during the promotion and that they failed to implement reasonable safety

requirements to protect its riders. Plaintiffs further claim that the alleged

intoxication of Alleman is sufficient to preclude summary judgment. They argue

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that Cajun Harley owed a duty to the riders to select a safe route and increase the

conspicuousness of the motorcycles in the Promotion.

Undoubtedly, Cajun Harley had a duty to the participant riders and the

general public to conduct the demonstration ride in a reasonably safe manner.

Plaintiffs argue Cajun Harley breached their duty to conduct themselves in a

reasonable manner by failing to choose a safer demo route. They claim that the

road chosen by Cajun Harley had steep slopes next to the roadway, multiple curves

in close proximity, and unimproved shoulders. Additionally, they argue that Cajun

Harley breached its duty by using untrained personnel to select the route and serve

as lead and trail riders on the demo rides; failing to use headlight modulators that

would have alerted Alleman sooner of the approach of a group of motorcycles,

failing to require that all riders wear safety vests, failing to obtain a police escort,

and failing to obtain a permit.2 In support of their allegations, plaintiffs submitted

the affidavit of Michael J. Matthews, a motorcycle safety consultant.

Next, plaintiffs argue that Cajun Harley was the legal cause of Doucet’s

injuries because it was foreseeable that a group of motorcycles traveling on curvy

roads with unimproved shoulders might be involved in an accident and that it was

foreseeable that a large group of people riding motorcycles would distract other

drivers on the road. Further, plaintiffs claim the accident was foreseeable because

previous demo riders have been injured in Harley-Davidson promo rides with two

people suffering “major” injuries in rides coordinated by Jerry Jones.3

2
Plaintiffs made similar claims against Harley-Davidson Motor Company, Inc. in Doucet
v. Alleman, 15-61 (La.App. 3 Cir. 08/25/15), __ So.3d __, in which we affirmed the grant of
summary judgment in Harley-Davidson’s favor.
3
Jerry Jones, the event coordinator, is a defendant in a separate lawsuit.

5

Finally, plaintiffs argue that the damages were foreseeable and easily

associated with the risks, stating that an “accident on a Harley-Davidson demo ride

is certainly foreseeable.” Plaintiffs argue that, as a policy matter, Cajun Harley

should be cast with liability stating:

Here, there is a clear need for the Doucet Appellants to be
compensated for both their emotional and psychological trauma, also
to be compensated for the actual financial support that they were
receiving from Mr. Doucet which has now been lost. Such a factor
favors imposing liability against Cajun Harley.

Additionally, citing Pitre v. Opelousas General Hospital, 530 So.2d 1151

(La.1988), plaintiffs claim that imposing liability upon Cajun Harley will deter

them from hosting future rides without implementing additional safeguards.

Alleman’s own testimony is the best evidence that nothing Cajun Harley

could have done would have prevented this accident. Regardless of whether the

riders wore safety vests, had special headlights, had special escorts, or had a permit,

Alleman would have been distracted merely by his interest in motorcycles as a

motorcycle enthusiast. We agree with Cajun Harley that plaintiffs have failed to

show that they will be able to meet their burden of proving that anything it could

have done would have prevented Alleman’s distraction.

As a panel of this court found in the suit against Harley-Davidson, the

affidavit of Michael J. Matthews, the plaintiffs’ “expert,” is insufficient to

overcome the fact that they will be unable to meet their burden of proof. The trial

court limited Matthews’ testimony to lay opinion testimony. As a panel of this

court previously found, we accord it little weight. Simply, Matthews’ opinion that

had the motorcycles been more conspicuous, the accident could have been avoided,

is not supported by the facts.

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Short of a complete ban on promotional motorcycle rides, a social policy

that would certainly be detested by the riders themselves, Cajun Harley took every

reasonable precautionary measure to ensure the safety of its drivers, including:

 Testing the route six to seven times prior to the event and
inspecting it for hazards which were not found.

 Prior to the event, all participants were required to attend an
orientation which included safety procedures and a route
description.

 Participants were required to show a valid driver’s license with
a motorcycle endorsement and to have helmets, which were
provided to them if they did not have their own.

 Cajun Harley employees participated in the ride with one
person in the lead and one following the group. They also road
the demo route with Jones numerous times prior to the event.

 The owner of Cajun Harley spoke to the city attorney for the
City of Scott who advised that no permits were required for the
ride.

 Riders expressly indicated that they had the skill, knowledge,
and experience to operate the motorcycles in a safe manner.

We agree with the trial court that the legal cause of this accident was

Alleman’s actions. The ride was on a public road that is intended for use by all

motorists. Increased conspicuousness would not have deterred Alleman’s

distraction. Neither police patrols nor permits would have prevented Alleman

from being distracted by the motorcycles. There was no evidence that any further

precautionary measures taken by Cajun Harley would have prevented Alleman

from running off the road. Moreover, Alleman’s state of intoxication is irrelevant

to the analysis of the duty/risk formula as applied to Cajun Harley. 4 Simply, Cajun

Harley’s duty cannot extend to this type of harm in the manner in which it arose—

4
The accident occurred at approximately 10:40 a.m. Alleman admitted to taking a
prescribed Xanax at around 7:00 a.m. and drinking one eight-ounce bottle of Coors Light
sometime between 9:30 and 10:00 a.m. the morning of the accident.

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a motorcycle enthusiast who had taken a Xanax at 7:00 a.m. and drank a beer at

9:30 or 10:00 a.m. that morning would be so distracted by the motorcycles that he

ran off the road and overcorrected, veering into the lane killing a demo-ride

participant. Furthermore, it is not a reasonably foreseeable occurrence.

Plaintiffs argue that accidents of all kinds on the roadway are reasonably

foreseeable. While that is true, it cannot be the basis to impose liability on a

company for the negligent acts of an individual. The overriding social policy of

allowing people freedom to drive on the road, as motorcycle groups often do,

cannot be outweighed by the fact that one individual became so distracted that he

ran off the road and killed a motorcycle rider. There are numerous distractions on

the road that drivers must negotiate on a daily basis. It was Alleman’s ultimate

responsibility to not become so distracted that he ran off the road.

The plaintiffs’ “policy considerations” amount to nothing more than having

a “deep-pocket” defendant. Clearly, plaintiffs argue that Cajun Harley should be

found liable because they are the one party that can actually afford to pay. This

argument must fail. Every accident that occurs cannot be deemed to be the

financial responsibility of a corporation because it has a better insurance policy.

We find that imposing liability on Cajun Harley would deter them from ever

hosting promotional rides again for the fear that they will be financially

responsible for anything that might occur on the route.

Although we are extremely sympathetic to the plaintiffs for the tragic loss of

their husband and father, we find that they will be unable to meet their burden of

proving the essential factors of the duty/risk analysis. Accordingly, summary

judgment was properly granted in favor of Cajun Harley.

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CONCLUSION

The summary judgment granted in favor of the defendant, Cajun Cycles, Inc.

d/b/a Cajun Harley Davidson, is affirmed. All costs of this appeal are assessed

against the plaintiffs-appellants, Kim Doucet, et ux.

AFFIRMED.

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