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05/14/02

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SUPREME COURT OF LOUISIANA NO. 01-CC-2837 LISA RACINE AND JAMES RAY RACINE, INDIVIDUALLY AND AS NATURAL TUTOR/TUTRIX OF THE MINOR CHILDREN, HUNTER RACINE AND LOGAN RACINE V. MOON'S TOWING, ET AL.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON

PER CURIAM
At issue in this case is whether defendants, Goldwasser Moving and Storage Company, Inc. d/b/a A-Arpin Moving & Storage and its general manager, Robert Goldwasser (collectively referred to hereinafter as "Goldwasser"), are entitled to summary judgment dismissing plaintiffs' claims against them. For the reasons that follow, we conclude there is no genuine issue as to material fact and find Goldwasser is entitled to judgment as a matter of law. Accordingly, we reverse the judgment of the district court and render summary judgment in favor of Goldwasser.

FACTS AND PROCEDURAL HISTORY This case arises out of the accidental death of fifteen-year old Hunter Racine. On the afternoon of Saturday, November 7, 1998, Hunter, his fourteen-year old brother Logan, and two friends decided to explore Goldwasser's property, which is located in an industrial area on River Road and St. George Avenue in Jefferson Parish, near the Huey P. Long Bridge. The teenagers entered the unfenced property without

permission, climbed onto an elevated tank tower, and dropped pumpkins and a bowling ball on the parked trucks below. The boys then climbed down from the tower, and Hunter and his friends went off to ride mini-bikes. Meanwhile, Logan and two other teenagers who had come onto the property discovered an unattended flatbed truck parked next to a wooden fence.1 Although both doors of the truck were locked, the windows were partially open, and the boys discovered that the keys were in the ignition. Logan climbed into the truck through the passenger side window and started the engine. After allowing the engine to idle for several moments, Logan attempted to turn it off, but he was unable to do so.2 As a result, the truck ran (without moving) for fifteen to twenty minutes. When Hunter returned from riding mini-bikes, he jumped on the running board of the truck, reached through the driver's side window, and attempted to shut off the engine. As Hunter leaned into the cab of the truck, the truck suddenly jumped into gear and began rolling forward.3 Hunter tried to jump from the truck to the ground, but he was pinned between the moving truck and the fence. He died before help arrived. In October 1999, Hunter's parents filed suit against several defendants, including Goldwasser, contending the truck was an attractive nuisance and that the truck was negligently and improperly stored on the unfenced property. In addition, plaintiffs sought recovery on the basis of strict liability. After discovery, Goldwasser filed a motion for summary judgment, asserting that under the undisputed facts of the case, it was not liable for Hunter's death as a matter
The truck had been towed to Goldwasser's premises several days earlier after experiencing repeated mechanical problems. The boys were unaware that the ignition system on the diesel truck could not be turned off simply by turning the key. According to the report of the investigation conducted by the Jefferson Parish Sheriff's Office, an inspection of the truck revealed no mechanical defects or other evidence that would explain why the truck moved forward. 2
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of law. In support, Goldwasser relied on Logan's deposition testimony, in which he admitted that both he and Hunter knew they were trespassing on private property and had no right to be in or near the truck. Goldwasser contended that Logan's deliberate acts set in motion the events giving rise to Hunter's death and were the sole cause of the accident. After a hearing, the district court denied Goldwasser's motion for summary judgment. The court found there were questions of fact to be resolved by the jury, making summary judgment inappropriate.4 From this ruling, Goldwasser applied for supervisory writs. In a 2-1 ruling, the court of appeal denied the writ on the showing made.5 Goldwasser then applied to this court, which granted the writ and remanded it to the court of appeal "for briefing, argument (if requested) and opinion."6 On remand, the court of appeal again denied Goldwasser's writ.7 Specifically, the appellate court found there were questions of fact as to whether Goldwasser created an unreasonable risk of harm by parking the truck on its property: In this case, plaintiffs have alleged that leaving the keys in a broken, unlocked flatbed truck in or in the immediate proximity of a residential neighborhood constitutes an unreasonable risk of harm. They also argue that the truck was negligently or improperly stored outside the fenced area "without being in gear and/or the parking brake in use and/or the wheels chocked." They further assert that the defendants were aware or should have been aware that the property was

In his reasons for judgment, the trial court conjectured that the rescue doctrine, which provides that one who places himself in danger as a result of an emergency is not held to the same degree of care normally required of an ordinarily prudent person, might be applicable under these facts and could absolve Hunter of any fault for his actions. See Fowler v. State Farm Fire & Cas. Ins. Co., 485 So. 2d 168, 170 (La. App. 2nd Cir.), writ denied, 487 So. 2d 441 (La. 1986). However, plaintiffs now concede that there is no basis for applying the rescue doctrine under these facts. Accordingly, we will not discuss it further.
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Racine v. Moon's Towing, 01-258 (La. App. 5th Cir. 3/21/01). Racine v. Moon's Towing, 01-1083 (La. 6/1/01), 793 So. 2d 174. Racine v. Moon's Towing, 01-258 (La. App. 5th Cir. 10/3/01) (not designated for publication). 3

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used as a "hang out" by neighborhood kids, and that there was no fence or other protective measure to prevent easy ingress and egress for any pedestrian. Whether these circumstances created an unreasonable risk of harm is a factual determination as yet unresolved in this case. Upon Goldwasser's application, we granted certiorari to review the correctness of that ruling.8

DISCUSSION A motion for summary judgment will be 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. 966B. This article was amended in 1996 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action . . . The procedure is favored and shall be construed to accomplish these ends." La. Code Civ. P. art. 966A(2). In 1997, the legislature enacted La. Code Civ. P. art. 966C(2), which further clarified the burden of proof in summary judgment proceedings, providing: The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. This amendment, which closely parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), first places the burden of producing evidence at the
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Racine v. Moon's Towing, 01-2837 (La. 1/11/02), 806 So. 2d 653. 4

hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. See MARAIST AND LEMMON, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE,

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