Afaf Rabee Versus Louisiana Department of Public Safety & Corrections and Saber Farhud C/W Jacqueline Eursin Versus Office of Risk Management; Louisiana Department of Public Safety & Corrections; Saber Farhud; Financial Indemnity Company and Afaf Rabee ( 2023 )

AFAF RABEE NO. 23-C-384
VERSUS FIFTH CIRCUIT
LOUISIANA DEPARTMENT OF PUBLIC COURT OF APPEAL
SAFETY & CORRECTIONS AND SABER
FARHUD STATE OF LOUISIANA
C/W
JACQUELINE EURSIN
VERSUS
OFFICE OF RISK MANAGEMENT;
LOUISIANA DEPARTMENT OF PUBLIC
SAFETY & CORRECTIONS; SABER
FARHUD; FINANCIAL INDEMNITY
COMPANY AND AFAF RABEE
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 820-921, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
November 02, 2023
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.
WRIT GRANTED, JUDGMENT REVERSED,
SUMMARY JUDGMENT GRANTED
SMC
CONCURS WITH REASONS
MEJ
JJM
COUNSEL FOR PLAINTIFF/RESPONDENT,
AFAF RABEE
Craig A. Gentry
COUNSEL FOR PLAINTIFF/RESPONDENT,
JACQUELINE EURSIN
Alberto E. Silva
Ron A. Austin
COUNSEL FOR DEFENDANT/RELATOR,
STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS, AND SABER FARHUD
Jeffrey M. Landry
Adrian K. Alpay
Phyllis E. Glazer
COUNSEL FOR DEFENDANT/RESPONDENT,
FINANCIAL INDEMNITY COMPANY
Aaron J. Lawler
CHEHARDY, C.J.
This case addresses the statutory immunity from liability provided to the
State of Louisiana and its agents and employees when engaged in emergency
preparedness activities. For the reasons that follow, we grant the writ application,
reverse the trial court’s judgment, grant defendants’ motion for summary
judgment, and dismiss with prejudice plaintiffs’ claims against defendants.
Facts and Procedural History
On October 10, 2020, the plaintiffs, Afaf Rabee and Jacqueline Eursin, were
allegedly injured in an auto accident caused by Saber Farhud, an employee of the
Louisiana Department of Public Safety and Corrections (DPSC or “the State”).
Agent Farhud was driving to the Hilton Riverside Hotel in New Orleans to assist
with securing Hurricane Laura evacuees from Lake Charles. While driving a
DPSC-owned vehicle on Manhattan Boulevard in Jefferson Parish, Farhud rear-
ended the vehicle driven by plaintiff Rabee. Ms. Rabee then rear-ended the vehicle
in front of her, in which plaintiff Jacqueline Eursin was a passenger. At the time of
the accident, Louisiana was operating in a state of emergency pursuant to Governor
Edwards’ proclamation entered after Hurricane Laura. Ms. Rabee and Ms. Eursin
filed separate lawsuits against Agent Farhud and the State through the DPSC.1
Their lawsuits were subsequently consolidated.
Defendants subsequently filed a motion for summary judgment arguing that
Farhud and DPSC cannot be held liable pursuant to the Louisiana Homeland
Security and Emergency Assistance and Disaster Act. More specifically, La. R.S.
29:735 A(1) provides:
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
1
Ms. Rabee’s lawsuit named as defendants “Louisiana Department of Public Safety &
Corrections and Saber Farhud.” Ms. Eursin’s lawsuit named as defendants “Office of Risk
Management; Louisiana Department of Public Safety & Corrections; Saber Farhud; Financial
Indemnity Company; and Afaf Rabee.”
1
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 death or injury to persons or
damage to property as a result of such activity.
“Emergency preparedness” is defined in La. R.S. 29:723 (6) of the Disaster Act as
“the mitigation of, preparation for, response to, and the recovery from emergencies
and disasters.”
Agent Farhud, who normally works as a probation and parole officer, was
assigned to work a security shift protecting displaced citizens of Lake Charles. An
affidavit from Richard Berger, a DPSC District Manager who was Farhud’s
immediate supervisor at the time of the accident, indicated that DPSC paid any all
expenses associated with the State-owned vehicle that Farhud was driving, that
Farhud was compensated for his time traveling to and from the Hilton Riverside
Hotel in the DPSC vehicle during this emergency operation assignment, and that
his use of the vehicle at the time of the accident was related to the performance of
his duties as a DPSC employee. As such, defendants argue that Agent Farhud and
DPSC were engaged in the “response to, and the recovery from” the disaster.
In opposition, plaintiffs contend that although providing security at the hotel
may be construed as emergency recovery activities, Farhud was not engaged in
those activities at the time of the accident and was not delivering any crucial
disaster recovery supplies. Plaintiffs further argue that the emergency preparedness
cases to which defendants point all involved a state actor who was clearly engaged
in recovery activities at the time of the incident; here, Farhud was not engaged in
emergency or recovery activities when the accident occurred.
The trial court denied defendants’ motion for summary judgment, stating in
reasons for judgment that there was a genuine issue of material fact as to whether
Farhud’s conduct falls under the immunity statute, citing Robertson v. St. John the
2
Baptist Parish, 15-240 (La. App. 5 Cir. 10/14/15), 177 So.3d 785. The trial court
also stated that immunity statutes are to be strictly construed against the party
claiming the immunity pursuant to Banks v. Parish of Jefferson, 08-27 (La. App. 5
Cir. 6/19/08), 990 So.2d 26, 30, writ denied, 08-1625 (La. 10/24/08), 992 So.2d
1043.
Defendants now seek review of that ruling. Finding merit in defendants’
argument, we gave the parties an opportunity to provide additional briefing and to
request oral argument, if desired, pursuant to La. C.C.P. art. 966 H.
Law and Argument
A motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law. La.
C.C.P. art. 966 A(3). The burden of proof rests with the mover. La. C.C.P. art. 966
D(1). Nevertheless, if the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary judgment, the mover’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 the
absence of factual support for one or more elements essential to the adverse party’s
claim, action, or defense. Id. The burden is on the adverse party to produce factual
support sufficient to establish the existence of a genuine issue of material fact or
that the mover is not entitled to judgment as a matter of law. Id.; see also Robinson
v. Otis Condominium Assoc., Inc., 20-359 (La. App. 5 Cir. 2/3/21), 315 So.3d 356,
360-61, writ denied, 21-0343 (La. 4/27/21), 314 So.3d 837.
We review the denial of a motion for summary judgment de novo. Bourgeois
v. Allstate Ins. Co., 15-451 (La. App. 5 Cir. 12/23/15), 182 So.3d 1177, 1181.
Under this standard, we use the same criteria as the trial court in determining if
summary judgment is appropriate: whether there is a genuine issue as to material
3
fact and whether the mover is entitled to judgment as a matter of law. Richthofen v.
Medina, 14-294 (La. App. 5 Cir. 10/29/14), 164 So.3d 231, 234, writ denied, 14-
2514 (La. 3/13/15), 161 So.3d 639.
The statute is clear: the State and its employees shall not be held liable for
injury to the persons or damage to property when engaged in emergency
preparedness activities. La. R.S. 23:735 A(1). The central issue in this case is
whether driving in a State-owned car to a special assignment protecting hurricane
evacuees constitutes an “emergency preparedness activity” that entitles Agent
Farhud and the DPSC to immunity.
The current facts are essentially undisputed: Farhud was driving a State-
owned vehicle to perform a special assignment that was outside of his regular work
as a probation and parole officer. The DPSC made this assignment in conjunction
with the government’s declared emergency after Hurricane Laura. Where the facts
are undisputed, the interpretation and application of the immunity statute presents a
question of law that is appropriate for consideration on summary judgment and is
subject to de novo review. Newtek Small Business Finance, LLC v. Baker, 22-1088
(La. 6/27/23), 366 So.3d 1230, 1232; Fernandez v. City of Kenner, 21-550 (La.
App. 5 Cir. 12/8/21), 335 So.3d 951, 954.
In Benton v. State, 20-1214 (La. App. 1 Cir. 8/13/21), 2021 WL 3578857(unpublished writ disposition), writ denied, 21-1815 (La. 1/26/22), 332 So.3d 82, a
state employee was traveling in her boyfriend’s vehicle to an alternative work
location outside of her normal work hours to distribute Disaster Supplemental
Nutritional Assistance Program (DSNAP) cards to flood victims during a declared
state of emergency. The employee did not have the DSNAP cards in the vehicle at
the time of the accident. In a 3-2 decision, the First Circuit overturned the trial
court’s denial of summary judgment, granted defendants’ motion for summary
4
judgment, and dismissed the plaintiff’s claims against the State.2 See also Lumpkin
v. Lanfair, 09-6248 (E.D. La. Sept. 23, 2010), 201 WL 38254287, Martin v. U.S.,
07-663 (M.D. La. Sept. 24, 2008), 2008 WL 11417740. As in Benton, the trial
court in this case erred in finding that a genuine issue of material fact remains.
Furthermore, “[r]epresentatives and employees of the State, its agencies, or
political subdivisions are also immune except if they engage in willful
misconduct.” McQuirter v. State Through La. Dep’t of Public Safety &
Corrections Elayn Hunt Corr. Ctr., 20-1192 (La. 1/12/21), 308 So.3d 285. There is
no evidence that Farhud engaged in willful misconduct when he rear-ended Ms.
Rabee. As such, Agent Farhud is entitled to immunity under La. R.S.
29:735(A)(1).
One of the enunciated purposes of the Disaster Act is “[t]o prepare for
prompt and efficient evacuation, rescue, care, and treatment of persons victimized
or threatened by disasters or emergency.” La. R.S. 29:722 A(5). The Act defines
“emergency preparedness” activities to include the “response to” and the “recovery
from” emergencies and disasters. La. R.S. 29:723 (6). Given DPSC’s engagement
in disaster relief and Agent Farhud’s special assignment to protect hurricane
evacuees, we find that driving to his special assignment is included within
“emergency preparedness” activities, and that defendants are entitled to statutory
immunity.
2
Chief Judge Whipple and Judge Holdridge dissented. C.J. Whipple stated that even though
Louisiana courts have given “emergency preparedness and recovery activities” a broad
interpretation, immunity should apply only when the employee is engaged in the activity, and the
injury to a person must be as a result of that activity. She believed that the State had not
established that the employee in Benton, who was driving from her home in her boyfriend’s
vehicle to an assigned work location, was engaged in an emergency preparedness or recovery
activity at the time of the accident. In a separate dissent, Judge Holdridge listed numerous
activities that had been found to constitute “emergency preparedness” activities, but stated that
he believed genuine issues of material fact remained as to whether a state employee driving a
friend’s car is entitled to immunity for an accident that occurred more than forty miles from the
disaster relief distribution area.
5
Finally, plaintiffs also suggest that summary judgment is inappropriate here
because a determination of the vicarious liability of DPSC must be made at trial.
We disagree. The “going-and-coming rule” to which plaintiffs refer does not
change our immunity analysis, which is governed by the Disaster Act.3
After de novo review, we grant the writ, reverse the trial court’s judgment,
grant the motion for summary judgment filed by defendants, Saber Farhud and the
State of Louisiana through the Department of Public Safety and Corrections, and
dismiss with prejudice Afaf Rabee’s and Jacqueline Eursin’s claims against them.
WRIT GRANTED, JUDGMENT REVERSED,
SUMMARY JUDGMENT GRANTED
3
The going-and-coming rule states that an employee traveling to or from work generally is not in
the course and scope of employment for purposes of an employer’s vicarious liability under La.
C.C. art. 2320, because an employee usually does not begin work until he reaches his employer’s
premises. See, e.g., White v.Canonge, 01-1227 (La. App. 5 Cir. 3/26/02), 811 So.2d 1286, 1289.
There are three exceptions to the general exclusion regarding commuting to and from work: an
employee may be found to be in the course and scope of employment when traveling to or from
work if (i) the employer provides the transportation, (ii) the employer provides wages or
expenses for the time the employee spends travelling, or (iii) the operation of the vehicle is
incidental to or in performance of the employee’s responsibility. Knowles v. State Farm Mut.
Auto. Ins. Co., 12-806 (La. App. 5 Cir. 3/27/13), 113 So.3d 417, 419.
6
AFAF RABEE NO. 23-C-384
VERSUS FIFTH CIRCUIT
LOUISIANA DEPARTMENT OF COURT OF APPEAL
PUBLIC SAFETY & CORRECTIONS
AND SABER FARHUD STATE OF LOUISIANA
C/W
JACQUELINE EURSIN
VERSUS
OFFICE OF RISK MANAGEMENT;
LOUISIANA DEPARTMENT OF
PUBLIC SAFETY & CORRECTIONS;
SABER FARHUD; FINANCIAL
INDEMNITY COMPANY AND AFAF
RABEE
JOHNSON, J., CONCURS WITH REASONS
I concur for the reasons assigned by Judge Molaison and echo his
sentiments that the outcome in this case may not be equitable. I write separately
to stress that broad interpretations of La. R.S. 29:735 that cover “emergency
preparedness” or “homeland security” response activities that have tenuous
temporal relationships or connexity to the events that necessitated the declaration
of the state of emergency in the first place may further threaten the safety of
Louisiana’s citizens. One purpose of the Louisiana Homeland Security and
Emergency Assistance and Disaster Act is “generally to preserve the lives and
property of the people of the State of Louisiana”. La. R.S. 29:722 (A). Hurricane
Ida made landfall on August 29, 2021 in Louisiana. In the instant case, Agent
Farhud was not being dispatched to respond to a specific incident at the hotel
that posed an imminent threat to the lives or property of Louisiana’s citizens.
Further, La. R.S. 32:24 places a duty on emergency vehicle operators to
“drive and ride with due regard for the safety of all persons”. By analogy, those
1
claiming immunity under La. R.S. 29:735 should be charged with a similar
standard of care, especially if they are not operating a clearly marked and
equipped emergency vehicle. In the instant case, Agent Farhud drove a 2008
Ford Crown Victoria that was only marked when it was parked with a placard
that was placed in the front of the vehicle according to his deposition testimony.
Agent Farhud’s vehicle markings were not sufficient to put the average motorist
on notice that (in case of emergency) his vehicle may not follow all traffic laws.
Granting immunity in cases such as these to otherwise negligent actors may
circumvent the legislators’ intent and may encourage emergency responders to
neglect their responsibility to generally protect lives and property.
2
AFAF RABEE NO. 23-C-384
VERSUS FIFTH CIRCUIT
LOUISIANA DEPARTMENT OF COURT OF APPEAL
PUBLIC SAFETY & CORRECTIONS
AND SABER FARHUD STATE OF LOUISIANA
C/W
JACQUELINE EURSIN
VERSUS
OFFICE OF RISK MANAGEMENT;
LOUISIANA DEPARTMENT OF
PUBLIC SAFETY & CORRECTIONS;
SABER FARHUD; FINANCIAL
INDEMNITY COMPANY AND AFAF
RABEE
MOLAISON J., CONCURS WITH REASONS
I agree with the majority that La. R.S. 29:735 A(1) provides immunity to
Agent Farhud and the DPSC under the facts of the case. I write separately to
underscore that the very broad language of La. R.S. 29:735 lends itself to far-
reaching interpretations where routine tasks, such as driving to work, become
protected activities, even when there is no imminent threat to the health and
safety of others. It is unclear whether such results are truly consistent with
legislative intent of covering “emergency preparedness activity,” or if the
statute’s applicability should be further clarified.
The law in this matter compels us to reach a certain result. While
cognizant of the deference owed the law as it has been written by our legislature
and interpreted by the Supreme Court, I do so here with trepidation upon
considering the resulting inequity our decision will have upon the plaintiffs’
1
causes of action. For the foregoing reasons, I reluctantly concur in the majority’s
disposition.
2
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 2, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-C-384
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
ALBERTO E. SILVA (RESPONDENT) RON A. AUSTIN (RESPONDENT) PHYLLIS E. GLAZER (RELATOR)
MAILED
AARON J. LAWLER (RESPONDENT) CRAIG A. GENTRY (RESPONDENT) ADRIAN K. ALPAY (RELATOR)
ATTORNEY AT LAW ATTORNEY AT LAW ASSISTANT ATTORNEY GENERAL
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(RELATOR)
ATTORNEY GENERAL
LOUISIANA DEPARTMENT OF JUSTICE
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