STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2018 CA 1739

WILLIE WALKER, JIMMIE L. SANDERS, SR., AND ROSALYN D. WALKER -SANDERS, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, ELIJAWON R. SANDERS

V (7-V VERSUS

CITY OF INDEPENDENCE POLICE DEPARTMENT, CITY OF INDEPENDENCE, JOHN DOE, JUSTIN THOMAS, ABC INSURANCE COMPANY, DEF INSURANCE COMPANY, AND GEICO CASUALTY COMPANY

consolidated with

NO. 2018 CA 1740

STEVEN WRIGHT

VERSUS

CITY OF INDEPENDENCE POLICE DEPARTMENT, CITY OF INDEPENDENCE, JOHN DOE, ABC INSURANCE COMPANY AND DEF INSURANCE COMPANY

On appeal from the st Judicial District Court FEB 0 7 2020 Parish of Tangipahoa, State of Louisiana No. 2015- 3356 c/ w 2015- 3482

Honorable Elizabeth P. Wolfe, Judge Presiding

J. Neale deGravelles Attorneys for Appellants, Benjamin B. Treuting Willie Walker, Jimmie L. Sanders Sr. Baton Rouge, Louisiana and Rosalyn D. Walkers -Sanders, Individually and on behalf of their minor child, Elijawon R. Sanders

Michael J. Remondet Jr. Attorneys for Appellant, Michael R. Guidry Steven Wright Lafayette, Louisiana and Erik M. Tadda Jeremy S. Hader Baton Rouge, Louisiana

Christopher M. Moody Attorneys for Appellee, Albert D. Giraud Town of Independence Hammond, Louisiana

BEFORE: WHIPPLE, C.J., GUIDRY AND CRAIN, 1 JJ.

Justice Will Crain is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

CRAIN,J.

The plaintiffs m these consolidated cases appeal a summary judgment

dismissing their claims against the Town of Independence. We affirm.

FACTS

In the early morning hours of November 22, 2014, Elijawon Sanders, Willie

Walker, and Steven Wright were guest passengers in a vehicle driven by Justin

Thomas. When an Independence Police Department Patrol Car activated its lights

behind Thomas' vehicle, he refused to stop and led the patrol car on a high-speed

chase. Thomas lost control of his vehicle while traveling westbound on Highway

40, approaching Interstate 55. The vehicle left the roadway and crashed into a tree,

causing serious injuries to the occupants.

The guest passengers instituted these suits for damages against Thomas, the

Town of Independence ( the Town), the Independence Police Department, and

various insurers. The plaintiffs generally allege Thomas began to stop his vehicle

after the patrol car activated its lights, when the patrol car "suddenly, violently, and

without warning" struck the rear of Thomas' s vehicle. They contend Thomas

attempted "to avoid further contact with" the patrol car, which began pursuing them.

The plaintiffs aver the patrol car struck Thomas's vehicle a second time, shortly after

the initial impact, which caused Thomas to lose control of the vehicle and crash.

The Town filed a motion for summary judgment, contending the plaintiffs

would be unable to prove the officer's actions were a proximate cause of the

accident. They alleged the officer in question, Eloise Jones, testified she attempted

to stop Thomas' s vehicle after it ran a stop sign. Jones stated Thomas did not stop

when she activated her patrol car's lights, and she followed, at one time traveling in

excess of sixty miles per hour. She explained she lost sight of the vehicle when it

turned around on the interstate entrance ramp and notified dispatch she had

discontinued her pursuit. She stated she later came upon the scene of the accident,

explaining Thomas had run offthe road for some distance before hitting a tree. The

Town submitted other evidence in support of its position that Officer Jones was not

in pursuit or even present when Thomas, who was driving at an excessive rate of

speed, left the roadway and struck the tree. The Town further contends the plaintiffs

have produced no admissible sworn testimony to support their allegation that Officer

Jones rammed Thomas's vehicle before the accident.

The plaintiffs opposed the motion, arguing there are genuine issues ofmaterial

fact as to numerous issues, including the cause and reasonableness of the police

chase, whether Officer Jones' s vehicle rammed Thomas' s vehicle, whether Officer

Jones acted with reckless disregard, and whether the Town was negligent in hiring

and training Officer Jones. The plaintiffs submitted evidence, including the affidavit

and incorporated expert report of former California police officer, Jeffrey J. Noble,

identified by the plaintiffs as " an expert in various fields related to policing." They

contended Noble's affidavit and report show genuine issues ofmaterial fact as to " a

myriad of issues." They argued Noble's affidavit and report " clearly show that his

expert opinion is that the dangerous high-speed chase initiated and continued by

Officer Jones was the proximate cause, and/or a substantial contributing factor in

causing the ... accident." They further argued the affidavit and expert report

supported their claims based, not only on Officer Jones's negligence, but the Town's

independent negligence for the hiring, training, retaining, and supervising of Officer

Jones.

In its reply memorandum, the Town objected to Noble's affidavit and expert

report insofar as they set forth findings related to causation. The Town pointed out

Noble is not an expert in accident reconstruction, and argued his opinion on

causation exceeded his identified field of expertise. The Town argued any of

Noble's findings on the issue of causation should be excluded. The trial court

continued the initial hearing on the motion for summary judgment, later explaining

the continuance was " so all parties could briefthe issue regarding Mr. Noble and the

c ]ourt could ascertain his expertise as to the facts of this case under Daubert and

Louisiana Code ofEvidence article] 702."

The plaintiffs then filed a lengthy memorandum opposmg the Town's

challenge to Noble's expertise, stating they objected to the Town improperly raising

the challenge in an untimely reply memorandum. On the merits, the plaintiffs argued

Noble's methodology was reliable and the Town's challenge should be denied. The

plaintiffs further claimed Noble was " patently qualified as an accident reconstruction

expert," pointing to Noble's police experience. The plaintiffs argued Noble's

affidavit and report should be considered and the Town's motion for summary

judgment should be denied.

To the memorandum, the plaintiffs attached new evidentiary support,

including the affidavit and expert report of accident reconstructionist and

biomechanics consultant, Dr. Rajeev Kelkar. The plaintiffs argued that like Noble,

Dr. Kelkar concluded the police pursuit did not stop and was a substantial

contributing factor in causing the accident. The plaintiffs additionally argued the

two experts were able to rely on each other's conclusions. The plaintiffs stated the

Town's challenge caused them to convert Dr. Kelkar " from a non-discoverable

consulting expert to a now-discoverable testifying expert." The plaintiffs explained

they presented Dr. Kelkar's affidavit and expert report " as a belt-and-suspenders

cautionary measure" for the purpose of showing " the reliable nature ofMr. Noble's

opinions."

The Town responded with a supplemental memorandum, restating its

objections to Noble presenting an expert opinion on causation, and further objecting

to the newly-presented expert opinion ofDr. Kelkar. The Town argued the plaintiffs

were granted only limited leave of court to file a memorandum addressing the

objection to Noble's ability to give a causation opinion, and offering a wholly new

expert exceeded the scope allowed. The Town asked the trial court to strike Dr.

Kelkar' s opinions, but argued that if that request was denied, it was nonetheless

entitled to summary judgment because there was no actual evidence Officer Jones

acted with reckless disregard or was at fault for failing to follow department

procedure.

After a hearing, the trial court granted the Town's motion for summary

judgment. In written reasons for judgment, the trial court explained it did not accept

Noble as an expert on the causation ofthe accident. The trial court further explained

it did not consider Dr. Kelkar's affidavit because it was improperly offered beyond

the scope ofthe briefing allowed following the continuance. Based on the evidence

presented, the trial court found the plaintiffs could not prove Officer Jones's actions

were a proximate or legal cause of the accident. The trial court signed a judgment

granting the motion for summary judgment and dismissing the plaintiffs' claims

against the Town with prejudice. The plaintiffs now appeal.

DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment

shall be granted ifthe motion, memorandum, and supporting documents show there

is no genuine issue ofmaterial fact and the mover is entitled to judgment as a matter

of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is

favored and shall be construed to secure the just, speedy, and inexpensive

determination of every action. La. Code Civ. Pro. art. 966A(2). In determining

whether summary judgment is appropriate, appellate courts review evidence de novo

under the same criteria that governs the trial court's determination of whether summary judgment is appropriate. In re Succession ofBeard, 13-1717 (La. App. 1

Cir. 6/6/14), 147 So. 3d 753, 759-60.

Our de nova review renders moot the plaintiffs' arguments that the trial court improperly weighed the evidence and made credibility determinations.

The burden ofproofon the motion rests with the mover; however, ifthe mover

will not bear the burden of proofat trial on the issue raised in the motion, the mover

is not required to negate all essential elements of the adverse party's claim, action,

or defense. Rather, the mover's burden is to point out to the court the absence of

factual support for one or more elements essential to the adverse party's claim,

action, or defense. Upon doing so, the burden shifts to the adverse party to produce

factual support sufficient to establish the existence ofa genuine issue ofmaterial fact

or that the mover is not entitled to judgment as a matter of law. La. Code Civ. Pro.

art. 966D( 1 ).

A fact is material if it potentially insures or precludes recovery, affects a

litigant's ultimate success, or determines the outcome ofthe legal dispute. Hines v.

Garrett, 04-0806 (La. 6/25/04 ),876 So. 2d 764, 765 ( per curiam ); Smith v. Our Lady

ofthe Lake Hospital, Inc., 93-2512 ( La. 7/5/94), 639 So. 2d 730, 751. A genuine

issue is one as to which reasonable persons could disagree; if reasonable persons

could reach only one conclusion, there is no need for trial on that issue

and summary judgment is appropriate. Hines, 876 So. 2d at 765-66; Smith, 639 So.

2d at 751. Because the applicable substantive law determines materiality, whether

a particular fact in dispute is material must be viewed in light ofthe substantive law

applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App.

1 Cir. 4/26/17), 220 So. 3d 79, 82, writ denied, 17-0873 ( La. 9/29/17), 227 So. 3d

288.

In a personal injury suit, liability is determined under the duty-risk analysis,

which requires that the plaintiffs prove ( 1) the defendant had a duty to conform his

conduct to a specific standard ofcare, (2) the defendant failed to conform his conduct

to the appropriate standard of care, ( 3) the defendant's substandard conduct was a

cause-in-fact of the plaintiffs' injuries, (4) the defendant's substandard conduct was

a legal cause ofthe plaintiffs' injuries, and (5) actual damages. Brewer v. JB. Hunt

Transport, Inc., 09-1408 ( La. 3/16/10), 35 So. 3d 230, 240. Ifthe plaintiffs fail to

establish any one ofthese elements as to a particular defendant, their claims against

that defendant must fail and the plaintiffs cannot recover against them. Roberts v.

Rudzis, 13-0538 ( La. App. 1 Cir. 5/28/14), 146 So. 3d 602, 609, writ denied, 14-

1369 ( La. 10/3/14), 149 So. 3d 797.

The Town sought summary judgment, arguing the plaintiffs would be unable

to establish the causation element oftheir claims. The cause-in-fact element requires

a determination of whether the harm would have occurred but for the defendant's

alleged substandard conduct, or, when concurrent causes are involved, whether the

defendant's conduct was a substantial factor in bringing about the harm. Granger v.

Christus Health Central Louisiana, 12-1892 ( La. 6/28/13), 144 So. 3d 736, 766;

Blake v. City ofPort Allen, 14-0528 (La. App. 1Cir.11/20/14), 167 So. 3d 781, 789.

In support of its motion, the Town submitted numerous exhibits, including

deposition testimony of Officer Jones; Deputy Tom Davidson, who was dispatched

to the accident scene; four individuals who lived near the accident scene; Thomas,

the driver ofthe car in which the plaintiffs were riding; and two ofthe plaintiffs.

Officer Jones testified Thomas's vehicle refused to stop after she activated her

patrol car's lights, though it pulled off the roadway three times. She followed, in

excess ofthe posted speed limit, westbound on Highway 40, intermittently sounding

her siren. As she proceeded across the interstate overpass, she saw the vehicle

heading back toward her, and surmised the vehicle ran into the ditch and turned

around. By the time she turned her patrol car around, she could no longer see the

vehicle. She patrolled the area, travelling approximately twenty-five to thirty miles

per hour, and to her right saw taillights disappearing over a distant bridge on

Crossover Road. Officer Jones backed up and turned in that direction. She crossed

the bridge, which she described as " a good little piece" down the road, and rounded

a curve when she heard someone shouting for help. She stopped, saw the vehicle

crashed into the tree, and called the sheriff's office for help. Officer Jones

maintained the pursuit had ended and she was traveling no more than thirty miles

per hour on Crossover Road.

Deputy Davidson testified he was on duty and responded to a radio

communication of an accident on Crossover Road. He arrived at the scene within

twenty to thirty minutes and observed tracks indicating the vehicle left the roadway,

crossed a driveway, went airborne partially across a ditch, struck a second driveway

that had been reinforced with concrete bags, rotated approximately 160 degrees,

struck a tree, then rebounded twelve to fifteen feet. According to his notes, the

vehicle traveled more than one hundred feet after leaving the roadway.

Larry Robertson, Terry Fleming, Renee Fleming, and Rachel Fleming each

testified they lived near the scene and were awakened by the sound of the crash.

Larry Robertson stated he dressed, then looked out his door and saw the vehicle

against the tree, but saw no other vehicles in the area besides his own. He went out

to the vehicle and " shortly after that" a police unit pulled up. He indicated it was

not traveling fast and did not have its flashing lights activated. He then went to the

vehicle to render assistance.

Terry Fleming testified she lived on Crossover Road since she was a child and

several accidents occurred in that curve in the road, so upon hearing the noise she

immediately knew there was an accident. She ran outside and saw what she

described as " a horrific scene." A man covered in blood was walking toward her

and a vehicle was against the tree with three passengers still inside. An

Independence Police unit arrived "[ n]ot very long" after.

Renee Fleming testified she woke to the sound ofthe crash, dressed, then ran

outside of her Crossover Road home. She saw a vehicle crashed into a pine tree in

her yard. She saw no other vehicles around. One passenger exited the vehicle and

was bleeding, so she returned inside for gloves and towels. She could not recall

whether the police unit was present before she returned inside, but felt certain it was

there when she came out with the gloves. She stated the vehicle against the tree did

not have its lights on and the police unit drove by the scene and had to be flagged

down by a neighbor. She recalled the officer referencing the possibility oflitigation

and that "they were claiming that [ the officer] hit them and rammed them into - and

caused the accident." However, she observed no damage to the front end of the

police unit.

Rachel Fleming testified she was awakened by a loud noise and assumed an

accident occurred based on her knowledge of prior accidents in the area. She ran

outside and saw a smoking vehicle against the tree, with wreckage scattered across

the yard and in the ditch. She ran to the vehicle and described it as " like somebody

put a bomb in it." A police vehicle without its siren or flashing lights activated

arrived, but she could not recall the timing.

Thomas testified he was driving the passengers home and remembers seeing

police lights and spinning in a circle, but could not remember much else. He could

not answer where he was driving when he saw the lights or where they were in

relation to his vehicle. He testified there was no reason he would not have pulled

over after seeing police lights. He could not remember any ofthe passengers telling

him to pull over or not to pull over. He remembered saying he was scared, but did

not know what he was scared of or whether any of the passengers responded. He

testified two passengers later told him the police car hit them. When asked to clarify

which passengers told him that, he said Willie Walker definitely did. Thomas

testified he pled guilty to negligent injury and reckless operation following the

accident, and was sentenced to one year of probation.

Elijawon Sanders, one of the plaintiffs and a guest passenger in Thomas's

vehicle, testified police lights appeared behind them just after they pulled out of a

friend's driveway onto Highway 40. He stated Thomas began to pull over and he

felt " a thud" that caused his body to shift. He could not remember ifhe felt the thud

when the car was still moving or how long after seeing the lights it occurred, and

admitted he had no personal knowledge of its cause. Sanders testified he blacked

out, explaining, " As I felt the thud, the dark screen was going over my eyes." He

later confirmed he had no personal knowledge of what caused the thud.

Steven Wright, another of the plaintiffs and also a guest passenger m

Thomas' s vehicle, testified he was in a coma for two months after the accident. He

stated he was asleep in the vehicle and had no personal knowledge of the accident.

He remembered only opening his eyes as the vehicle was " going down, like, a hill,"

then closing his eyes as hard as he could. The next thing he remembers is waking

up in the hospital.

Considering the evidence presented, the Town met its burden of pointing out

the absence of factual support for an essential element of the plaintiffs' claims.

Officer Jones' testimony that she discontinued her pursuit was uncontradicted; the

witnesses testified she arrived on the scene after the vehicle struck the tree and

neighbors had time to wake, dress, and run outside. Further, none of the vehicle

occupants had independent knowledge ofthe patrol car ramming Thomas's vehicle.

The burden ofproofthus shifted to the plaintiffs to produce factual support sufficient

to establish the existence ofa genuine issue of material fact. See La. Code Civ. Pro.

art. 966D( 1 ).

In opposition to the motion for summary judgment, the plaintiffs submitted

evidence, including Noble's affidavit and expert report. The Town challenged

Noble's ability to offer an expert opinion on causation and, after the trial court

continued the initial summary judgment hearing, the plaintiffs submitted the

affidavit and expert report ofDr. Kelkar. On appeal, the plaintiffs complain the trial

court erred in refusing to consider the evidence of their experts, which they argue

establish causation and preclude summary judgment.

The summary judgment procedure provides that objections to any documents

submitted in support of or in opposition to a motion for summary judgment "shall be raised in a timely filed opposition or reply memorandum." La. Code Civ. Pro.

art. 966D(2). When an objection is made in accordance with Article 966D(2), the

only issue to be determined is whether the affidavit complies with Louisiana Code

of Civil Procedure article 967. Mariakis v. North Oaks Health System, 18-0165 (La.

App. 1 Cir. 9/21/18), 258 So. 3d 88, 95. Article 967A provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code ofEvidence Article 702, l4l and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

The trial court is not required to hold a Daubert hearing pursuant to Louisiana Code

of Civil Procedure article 1425; rather, the trial court is required to make a threshold

determination ofwhether the expert's affidavit is admissible under Article 967A and

Article 702. See Thompson v. Center for Pediatric and Adolescent Medicine, L.L. C.,

The plaintiffs' argument that the Town's objection to Noble's affidavit constituted a new substantive argument improperly raised in the Town's reply memorandum is without merit. In fact, the objection was made through the only means a party may object to the consideration ofan expert's affidavit on a motion for summary judgment. See La. Code Civ. Pro. art. 966D(2).

However, the plaintiffs correctly point out the reply memorandum was not filed and served at least five days prior to the original hearing on the motion, as required by Article 966B(3). The trial court's written reasons for judgment acknowledge the plaintiffs' argument on this point and state the hearing was continued so all parties could brief the issue. Considering this, we find no error in the trial court's consideration ofthe objection at the rescheduled hearing.

Article 702 codified the standards for admissibility of expert testimony established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Freeman v. Fon 's Pest Management, Inc., 17-1846 (La. 2/9/18), 235 So. 3d 1087, 1089; Cordell v. Tanaka, LLC, 17-0285, 2018WL301331, * 3 ( La. App. Cir. 1/4/18), writ denied, 18-0235 ( La. 4/6/18), 239 So. 3d 827. That is, an expert witness may testify in the form ofan opinion if 1) ( the witness's expertise will help the trier offact to understand the evidence or to determine a fact in issue, ( 2) the testimony is based on sufficient facts or data, 3) the testimony is the product ofreliable principles and methods, and (4) the expert has reliably applied the principles and methods to the facts ofthe case. See Daubert, 509 U.S. at 589-595, 113 S.Ct. at 2795-98; Freeman, 235 So. 3d at 1089-90.

17-1088 ( La. App. 1 Cir. 3/15/18), 244 So. 3d 441, 447, writ denied, 18-0583 ( La.

6/1/18), 243 So. 3d 1062. Here, the Town argued Noble was not competent to testify

on the issue of causation ofthe accident, which required the trial court to determine

whether a primafacie showing ofcompetency was made so as to allow consideration

ofthe affidavit. See La. Code Civ. Pro. art. 967A.

In his affidavit, Noble attests he is the former Deputy Chief of Police of the

Irvine, California Police Department and former Interim Deputy Chief for another

California police department, with twenty-five years of police service during which

he held a wide range of assignments. He explains he has extensive experience

conducting internal administrative investigations " on a wide range of issues,"

specifically including vehicle pursuits. Noble is also a law school graduate.

Attached to the affidavit is Noble's curriculum vitae, which delineates his police

experience, education, publications, selected professional activities, and

professional affiliations. It further sets forth his experience as a consultant and

expert witness from 2005 to the present, listing 86 cases in which he was involved,

and describing his role as:

Provide consulting and expert witness services on a wide range of law enforcement and personnel issues including misconduct, corruption, use of force, workplace harassment, pursuits, police administration, training, police operations, criminal and administrative investigations, interviews and interrogations, civil rights violations, police procedures, and investigations.

In his affidavit, Noble states he reviewed " various pleadings filed in this

matter, including the Plaintiffs' Petition for Damages, First Supplemental Amending

Petition for Damages, a Motion for Summary Judgment and supporting

memorandum of law," as well as " numerous discovery responses and documents

produced pursuant to the discovery process, the dispatch tape from the date and time

of the incident, and approximately nine ( 9) depositions." 5 Based on that review,

Noble identifies the particular documents in his expert report attached to the affidavit.

Noble formed an expert opinion that Officer Jones acted in reckless disregard ofthe

risk of serious injury or death by engaging in a high-speed chase after a minor traffic

infraction. Noble states that the evidence contradicts Officer Jones' version of

events; however, even ifher patrol car did not impact Thomas's vehicle, her actions

fell below acceptable police standards, as did her hiring and retention. Noble

concludes " Any one ofthe issues was more likely than not, a significant contributing

factor in bringing about the accident and/or more probably than not, causing the

accident that is the basis ofthe instant lawsuit."

The trial court found that Noble appeared imminently qualified to testify about

police work and procedures, but was not qualified to testify as an expert as to the

cause of the accident. The trial court reasoned Noble's expertise did not strictly

relate to accident reconstruction, and Noble did not reconstruct the accident based

on his expertise. We agree. Noble's affidavit does not sufficiently establish his

competency to render an opinion on what caused the accident. Consequently, the

affidavit is speculative as to his conclusion regarding causation and cannot be

considered on the motion for summary judgment. Cf Cupit o/b/o Cupit v. Twin City

Fire Ins. Co., 17-918 (La. App. 3 Cir. 3/14/18), 240 So. 3d 993, 1001-02.

The plaintiffs further contend the trial court erred in refusing to consider the

affidavit and expert opinion of accident reconstructionist Dr. Kelkar, which they

submitted before the rescheduled hearing. We find no error in the trial court's ruling.

The trial court acted within its discretionary authority to continue the first hearing.

See La. Code Civ. Pro. art. 966C(2) (providing the court may order a continuance of

the hearing on the motion for summary judgment for good cause shown). Although

the trial court had the discretion to allow affidavits to be supplemented by

depositions, answers to interrogatories, or by further affidavits, it was not required

to do so. See La. Code Civ. Pro. art. 967A; La. Code Civ. Pro. art. 5053 ( providing

the word " may" is permissive). According to the trial court's written reasons for

judgment on the motion for summary judgment, the parties were authorized only to

file additional memoranda addressing Noble's expert qualifications before the

rescheduled hearing. The record provides no basis for finding the trial court's ruling was erroneous. Cf Reed v. Restorative Home Health Care, LLC, 52,645 ( La. App.

2 Cir. 6/5/19), 281So.3d 788, 798 ( on rehearing) ( discussing the trial court's ability

to close the record and disregard evidence submitted beyond the scope of a

continuance order).

The plaintiffs argue the remaining evidence, including Noble's expert opinion

on police policies and procedures that was not excluded, establishes genuine issues

of material fact that preclude summary judgment. In addition to the expert opinion

evidence, the Town submitted deposition testimony of Wright, Thomas, Officer

Jones, Deputy Davidson, Renee Fleming, Terry Fleming, and Sanders. The

plaintiffs also submitted medical records of Sanders and Walker; Walker's affidavit

and responses to interrogatories propounded by the Town; and correspondence

between counsel establishing Walker's current whereabouts are unknown. The

plaintiffs argue the evidence they presented reveals factual disputes about the

reasonableness ofOfficer Jones's decision to institute the police chase, the details of

the police chase, and whether there was impact between the vehicles. On the issue

of causation, the plaintiffs argue " copious evidence" establishes the police chase

occurred continuously and did not cease until the time ofthe accident. The plaintiffs

specifically point to Walker's affidavit that confirmed his response to an

interrogatory about the cause ofthe accident and Noble's expert report.

We do not reach the issue ofwhether supplementation with the affidavit ofa second expert is appropriate under Article 967A.

Walker attested to the accuracy of the following response he gave to the

interrogatory questioning how, when, and where the accident occurred, with the strikethrough appearing in his affidavit:

Subject to the [ stated] objections and without waiver [ofJ same, plaintiff answers: Elijawon Sanders, Justin Thomas, Stephen Wright and himself were leaving the house located off of Highway 40. As they entered onto Highway 40 and were heading toward the interstate, plaintiff saw the shadow of police lights. A couple of seconds after seeing the shadow ofpolice lights, the car plaintiffwas traveling in was rammed from the back. The force of this ramming sent the vehicle plaintiffwas riding in into the ditch. After exiting the ditch, the vehicle plaintiff was riding in turned onto Crossover Road. The vehicle plaintiff was traveling in was then rammed for a second time from the rear.- Plaintiff does not remember what happened during the wreck.

When plaintiff "came to" following the accident, he believed he heard someone saying the car was on fire. Plaintifftried to grab Elijawon but was unable to do so. Plaintiff also tried to grab Justin Thomas but was unable to do so. Plaintiff then remembers the ambulance arriving on the scene and instructing the ambulance to get the remaining passengers out of the vehicle.

In addition to his conclusions regarding causation, Noble attested that Officer

Jones acted with reckless disregard of the risk to the plaintiffs when she engaged in

the high speed chase and concluded her actions fell below acceptable standards for

police officers. In his expert report, Noble identified several bases for questioning

Officer Jones' credibility. Noble also indicated the crash occurred approximately

one mile down the road from Highway 40 and it is likely Thomas believed he was

still being pursued. Noble offers no factual support for this speculative statement

regarding what he thinks Thomas believed.

While the plaintiffs have shown factual issues regarding the origin of the

pursuit, the evidence submitted by the plaintiffs on the issue of causation is purely

speculative. Although factual inferences reasonably drawn from the evidence must

be construed in favor ofthe party opposing the motion, mere conclusory allegations,

improbable inferences, and unsupported speculation will not support a finding of a

In a memorandum filed with the trial court, the plaintiffs explained the two sentences with the strikethrough were removed from the discovery response prior to the execution of Walker's affidavit. genuine issue of material fact. See Willis v. l'vfedders, 00-2507 ( La. 12/8/00), 775 So. 2d 1049, 1050 ( per curiam); Guillory v. The Chimes, 17-0479 ( La. App. 1 Cir.

12/21117), 240 So. 3d 193, 195. The plaintiffs have not established they will be able

to prove Officer Jones's actions or the Town's alleged failure in employing Officer

Jones caused Thomas to crash his vehicle into a tree and injure the plaintiffs.8

Consequently, the Town is entitled to summary judgment dismissing the plaintiffs'

claims against it.

CONCLUSION

The judgment of the trial court is affirmed. Costs ofthis appeal are assessed

to Willie Walker; Jimmie L. Sanders Sr. and Rosalyn D. Walker-Sanders,

individually and on behalf of their minor c,hild, Elijawon R. Sanders; and Steven

Wright.

AFFIRMED.

The plaintiffs' argument that the trial court rendered judgment beyond the scope of the motion for summary judgment in dismissing the claims based on the Town's independent negligence is without merit. Both the claims based on Officer Jones's negligence and the independent negligence of the Town require proof of causation. The motion for summary judgment placed that element of all claims against the Town before the court; therefore, the trial court did not err in the scope ofits judgment.

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2018 CA 1739

WILLIE WALKER, JIMMIE L. SANDERS, SR., AND ROSALYND. WALKER-SANDERS, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, ELIJAWON R. SANDERS

VERSUS

CITY OF INDEPENDENCE POLICE DEPARTMENT, CITY OF INDEPENDENCE, JOHN DOE, JUSTIN THOMAS, ABC INSURANCE COMPANY, DEF INSURANCE COMPANY, AND GEICO CASUALTY COMPANY

consolidated with

NO. 2018 CA 1740

STEVEN WRIGHT

VERSUS

CITY OF INDEPENDENCE POLICE DEPARTMENT, CITY OF INDEPENDENCE, JOHN DOE, ABC INSURANCE COMPANY AND DEF INSURANCE COMPANY

GUIDRY, J., dissents and assigns reasons.

I respectfully disagree with the majority opinion. I find that based on the

entire record before us, there are genuine issues of material fact in regards to

whether or not the initial pursuit by Officer Jones was improper, whether it was

ongoing, whether there was physical contact between the Thompson vehicle and

Officer Jones' police unit, and the actions that caused and/or substantially

contributed to the crash. Further, even if her pursuit had ended, there is still a

question as to but for the initial pursuit, would the accident have occurred; a

question that should be considered by the trier of fact. See Blake v. City of Port

Allen, 14-0528 ( La. App. 1 Cir. 11120/14), 167 So. 3d 781, 789, noting that "[ t]he

determination to be made is whether the harm would have occurred but for the

defendant's alleged substandard conduct, or, when concurrent causes are involved,

whether the defendant's conduct was a substantial factor in bringing about the

harm".

Further, I would find that Mr. Noble's affidavit should have been considered

for summary judgment on the issue of causation. It should have also been

considered from a policy and procedure standpoint. It is improper to weigh

evidence and to make credibility determinations on summary judgment, and

construing the factual determinations reasonably drawn from the evidence in favor

of the party opposing the motion in this matter upon de novo review, I would

reverse the granting of summary judgment herein.