
    Pamela Russell HARRIS, Individually and on Behalf of Jamie Mascarella v. Jeremy STIMAC, The State of Louisiana, Through the Department of Public Safety and Corrections, and Ann Stimac.
    No. CA 93 2289.
    Court of Appeal of Louisiana, First Circuit.
    March 3, 1995.
    Rehearing Denied May 2, 1995.
    
      Victor L. Marcello, Gonzales, for plaintiffs/appellants, Pamela Harris and Jamie Mascarella.
    Stanford O. Bardwell, Jr., Baton Rouge, for defendant/appellee, State.
    Arthur H. Andrews, Baton Rouge, for defendant, Safeco Ins. Co.
    Before SHORTESS, FOIL, GONZALES, WHIPPLE and KUHN, JJ.
   IzWHIPPLE, Judge.

This is an appeal by plaintiffs, Pamela Russell Harris and Jamie Mascarella, from a judgment of the trial court granting summary judgment in favor of the State of Louisiana, through the Department of Public Safety and Corrections (the DPSC). For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This case involves an accidental shooting. At the time of the accident, Jeremy Wendt, then age fifteen, was in the legal custody of the DPSC. By judgment of the Family Court of the Parish of East Baton Rouge dated July 5,1989, Jeremy was found to be a child in need of supervision and was committed to the custody of the DPSC, Division of Youth Services, for care and treatment for a period not to exceed his eighteenth birthday. Upon being placed in the custody of the DPSC, Jeremy was admitted to the Joy Home for Boys in Shreveport, Louisiana.

However, on September 15, 1989, Jeremy was removed from the Joy Home at the request of the home director, because of disruptive behavior, drug and alcohol abuse and inability to conform to rules. At that point, Jeremy was returned to the home of his grandmother, Ann Stimac, by a Youth Services Division officer, because no other group facility was available to which Jeremy could be assigned.

On Wednesday, March 14, 1990, a day when Jeremy should have been in school, Jeremy, Jamie Mascarella and Jason Day were watching television at Ann Stimac’s home. Ann Stimac was not at home at the time, having left Jeremy earlier that morning when she went to work. While the boys were watching television, Jeremy retrieved a shotgun, which had been given to him by his brother, from his bedroom. He returned to the living room with the shotgun, and while he was holding the gun, it accidently discharged, striking Jamie Mascarella in the face.

As a result of the shooting, Pamela Harris filed suit 1 individually and on behalf of her minor son, Jamie Mascarella. Named as defendants were Jeremy Wendt; Ann Sti-mac; Cassandra Stimac, Jeremy’s mother; Safeco Insurance Company, Ann Stimac’s homeowner’s insurer; and the DPSC.

Thereafter, the DPSC filed a motion for summary judgment. The trial court granted the DPSC’s motion for summary judgment, stating in oral reasons that “the State is not the liability insurer for the safety of all of its citizens.” From this judgment, plaintiffs appeal.

The various theories for recovery set forth by plaintiffs herein against the DPSC are: (1) strict liability for the negligence of Jeremy; (2) independent negligence on the part of the DPSC; and (3) vicarious liability for the negligence of Ann Stimac, in whose care the DPSC placed Jeremy. Thus, in considering the propriety of the trial court’s grant of summary judgment herein, our initial inquiry must be whether, under any of these theories of liability, the DPSC owed a duty to plaintiffs for the breach of which the DPSC may be found legally responsible. Because we find that a genuine issue of material fact exists as to whether the State was independently negligent in failing to properly supervise and place Jeremy after adjudication as a child in need of supervision and commitment to the State’s custody, we must conclude that summary judgment is inappropriate herein. Accordingly, we reverse and remand.

DISCUSSION

Generally, a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits show there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Thompson v. \ ¿South Central Bell Telephone Company, 411 So.2d 26, 27 (La.1982). The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law is summary judgment warranted. Robertson v. Our Lady of Lake Regional Medical Center, 574 So.2d 381, 384 (La.App. 1st Cir.1990), unit denied, 573 So.2d 1136 (La.1991).

Summary judgments are not favored, and any reasonable doubt should be resolved against the mover. In determining whether all material issues have in fact been disposed of, any reasonable doubt is to be resolved against the granting of summary judgment and in favor of trial on the merits. Penalber v. Blount, 550 So.2d 577, 583 (La. 1989); Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Duncan v. Balcor Property Management, 615 So.2d 985, 988 (La.App. 1st Cir.), writ denied, 617 So.2d 936 (La. 1993).

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts in determining whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991).

Liability of DPSC under a negligence theory must be premised on DPSC owing a duty which extended protection to the plaintiffs herein. The existence of a duty is a question of law. Harris v. Pizza Hut of Louisiana, 455 So.2d 1364, 1371 (La.1984).

At the time that Jeremy was placed in the custody of DPSC, Louisiana Code of Juvenile Procedure article 84 provided as follows:

In a case in which a child has been adjudicated to be in need of supervision, the court may:
(1) Place the child in the custody of a parent or other suitable person on such terms and conditions as deemed in the best interest of the child and the public;
(2) Place the child on probation on such terms and |sconditions as deemed in the best interest of the child and the public;
(3) Assign the child to the custody of a private or public institution or agency;
(4) Commit a child found to be mentally defective to a public or private mental institution or an institution for the mentally defective;
(5) Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child; or
(6) Commit the child to the Department of Public Safety and Corrections for care and treatment... .

(Emphasis added.)

Former Code of Juvenile Procedure article 86(A) further ordered that “[t]he court should impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society” and “shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.” (Emphasis added.)

When a child adjudicated to be in need of supervision is committed to DPSC for care and treatment, “[t]he Department of Public Safety and Corrections [has] the sole custody of a child committed to the department under this Chapter” and is required to “determine the placement, care, and treatment of the child, and the expenditures to be made therefor.” LSA-C.J.P. art. 86(G) (repealed).

Once a child is placed in the legal custody of the Department, DPSC is statutorily responsible for the care, treatment, supervision and rehabilitation of the child. LSA-R.S. 15:901. Louisiana Revised Statute 46:1905 also addresses the powers and duties of DPSC with regard to children in need of supervision and provides that, in addition to other duties and functions, DPSC |6shall:

(1) Collect and evaluate data relating to the delinquency of children and the effectiveness of programs designed to prevent or reduce delinquency.
(2) To the extent that diversion from the juvenile justice system can be accomplished, with due regard to the safety of the community and the well-being of the children involved, encourage and assist in the development and conduct of innovative programs and provide needed care and services to such children outside such system to prevent children from becoming a part of or returning to such system by:
(a) Developing informational materials and standards relating to such programs, and
(b) Cooperating with and assisting other public and private agencies and organizations in the development and coordination of such programs, especially those which are community based.

LSA-R.S. 46:1905.

As set forth in LSA-R.S. 46:1903, the purpose of these provisions dealing with youth services to be provided by the State is: to preserve the unity of the family to the fullest extent possible; to prevent children from becoming delinquent; and to prevent children and the public from suffering the consequences of criminal behavior by substituting therefor programs for their supervision, care and rehabilitation, consistent with public interest and safety.

Clearly, these provisions were intended to provide the child with the guidance and supervision which he was otherwise not receiving. Considering all of these provisions, we find that a genuine issue of material fact exists as to whether the DPSC breached the statutory duty imposed upon the DPSC to care for, provide treatment for and supervise Jeremy Wendt, as a child in need of supervision placed in its custody for which liability can be imposed for the resulting injuries to Jamie Mascarella. See Opelousas Scrap Materials, Inc. v. State, Division of Evaluation & Services, Foster Homes Program, 525 So.2d 1144, 1147-1148 (La.App. 3rd Cir.1988).

Negligence is a question of fact. Booty v. Kentwood Manor Nursing Home, Inc., 483 So.2d 634, 639 (La.App. 1st Cir.1985), writ denied, 486 So.2d 754 (La.1986). Because the record contains conflicting evidence regarding the supervision, or lack thereof, provided by the DPSC once Jeremy was placed in his grandmother’s home, the factual determination of whether the DPSC negligently breached its duty to exercise reasonable care in the supervision and placement of Jeremy Wendt, precludes summaiy judgment herein. Thus, we reverse, preter-mitting discussion of the remaining arguments raised by plaintiffs. By our decision this date, we express no opinion as to the merits of plaintiffs’ claim, under a duty-risk analysis and the principles of foreseeability and reasonableness encompassed therein. We merely hold that, on the record before us, defendants are not entitled to judgment in their favor as a matter of law.

CONCLUSION

For the foregoing reasons, the August 23, 1993 judgment of the trial court granting the motion for summary judgment of the State of Louisiana, through the Department of Public Safety and Corrections, and dismissing plaintiffs’ claims against this defendant, is reversed. We remand to the trial court for further proceedings consistent with the views expressed herein.

Costs of this appeal, in the amount of $348.19, are assessed against the State of Louisiana, through the Department of Public Safety and Corrections.

REVERSED AND REMANDED.

FOIL, J., dissents and assigns reasons.

GONZALES, J., dissents for the reasons assigned by FOIL, J., and assigns additional reasons.

| iFOIL, Judge,

dissenting.

I respectfully dissent.

The taxpayers should not be responsible for the injuries sustained in this case. The trial court’s summary judgment should be affirmed.

This case is penal in nature. The Family Court held that this child, 15 years old, was in need of supervision. He was committed to the DPSC, Division of Youth Services, for care and treatment for a period not to exceed his eighteenth birthday. At first, he was placed in the Joy Home for Boys. His conduct was not acceptable there, so he was placed in the home of his grandmother.

On the day in question, the subject child and two other boys had a gun and it acci-dently discharged, allegedly injuring one of the boys.

Plaintiffs theory is that the state should be held responsible for lack of proper supervision by the child’s grandmother, because she was an agent of the state, since the state placed the child in her home. Apparently, the opinion of this court is that such a duty is owed. I respectfully disagree.

The majority opinion has far reaching implications. Suppose a defendant is placed on probation. Is the state responsible when the probated defendant has an automobile accident? Injures someone in a domestic dispute? Operates a lawn mower improperly and causes a rock to go in a neighbor’s eye? Is the state responsible because the defendant was placed on probation, rather than incarcerated? If the defendant does serve time and is paroled, is the state responsible for all of the parolee’s actions because the state paroled the defendant?

In this case, the Family Court felt that the child was in need of supervision. However, under the law, the Court provided for the child in such a way that prison custody was not advisable. However, if the state is to be held liable in instances such as this case, the state will have no alternative but to lock all the juvenile offenders up until they are 18.

For the foregoing reasons, I respectfully dissent. I would affirm the trial judge.

| iGONZALES, Judge,

dissenting.

|2The majority opinion, I believe, correctly rejects a theory of vicarious liability under La.C.C. art. 2318, as was done in Opelousas Scrap Materials v. State, 525 So.2d 1144 (La.App. 3rd Cir.1988).

The majority opinion is based on a finding of a cause of action for independent negligence on the part of the State, in failing to properly supervise, and secondly, for failing to properly place Jeremy Stimac. In order to have negligently placed Jeremy Stimac, the State would have to have known that Ann Stimac would be a careless custodian, or have just placed Jeremy in her care without any regard as to whether she would be a good custodian or not. Nowhere is it alleged by the plaintiffs that the placing of Jeremy was negligent. The parties don’t genuinely contend that the placing of Jeremy was negligently done, so there should be no factual dispute on this issue.

Further, I disagree with the majority opinion on the negligent supervision issue, in finding that the State retains a duty of hands-on care when the juvenile is placed under the supervision of a third party. The only way to impose such a duty to supervise the supervisor is to impose vicarious liability, which was rejected in Opelousas, Hartford v. State, 413 So.2d 1360 (La.App. 1st Cir.1982); and Graham v. State, 354 So.2d 602 (La.App. 1st Cir.1977).

I fail to see a distinction between the placing of a juvenile, under the juvenile code, into the custody of Ann Stimac and the act of paroling a parolee into the custody of the Palmers in the Hartford case. The placing in custody in each case establishes the exact same relationship. I find this case indistinguishable from Hartford. Since I believe that Hartford is the law of this circuit and is controlling and not distinguishable, it would require an en banc hearing in order to overrule Hartford.

The plaintiffs have alleged a custodial parent theory against Ann Stimac and have settled and collected $100,000 from Ann Stimac and her insurer stating in their petition “[a]s ... custodial parent of Jeremy Stimac, Ann Stimac is vicariously liable.” That relationship of custodial parent is actually the same as the Palmers’ with the |-¡parolee in Hartford. As stated in Hartford “the [incident] was so unforeseeable and unpredictable that to hold the [incident] within the risk of harm sought to be protected against would pose total, unqualified liability on the State, regardless of the circumstances.” 413 So.2d at 1361. I believe that this court should follow its previous ruling in Hartford and affirm the motion for summary judgment which was granted by the trial court.

Otherwise the plaintiff has won his case against Ann Stimac and her insurer on a custodial theory and is now proceeding on an inconsistent theory that the juvenile was in the legal custody of the State and not that of Ann Stimac. In Hartford, Judge Carter said “We cannot impose on a parole agent the responsibility for a parolee’s activities and whereabouts twenty-four hours a day. To do so would be tantamount to imposing strict liability on the State. We find as a matter of law that the duty of a parole agent to supervise the activities of a juvenile parolee who is under the legal custody of another does not include the duty to protect plaintiffs from the harm caused here (fire damage to a store), albeit an affirmative showing of negligence and proximate cause.” 413 So.2d at 1362. I believe the action of the State in placing Jeremy with Ann Stimac put him in the same legal custody position as the action of the State in putting the juvenile parolee under the legal custody of Mr. and Mrs. Palmer in Hartford under the above analysis by Judge Carter. 
      
      . Although the original petition listed his name as "Jeremy Stimac,” plaintiffs' amending petition properly lists Jeremy's name as "Jeremy Wendt.”
     
      
      . After the filing of the original petition, Jamie Mascarella reached the age of majority and was named as plaintiff herein.
     
      
      .This matter was subsequently consolidated with suit number 393,332, entitled "Safeco Insurance Company of America versus Pamela R. Harris, Individually and on Behalf of Jamie Mas-carella and the State of Louisiana through the Department of Public Safety and Corrections,” a concursus proceeding, also on the docket of the 19th Judicial District Court.
     
      
      . Louisiana Code of Juvenile Procedure article 84, which was repealed by Acts 1991, No. 235, § 17, effective January 1, 1992, was replaced by Children’s Code article 792.53.
     
      
      . Code of Juvenile Procedure article 86, also repealed by Acts 1991, No. 235, § 17, effective January 1, 1992, was replaced by Children's Code article 792.54.
     
      
      . In arguing that this court should find no liability on its part, the DPSC cites this court's opinion in Hartford Fire Insurance Co. v. State, Department of Health & Human Resources, 413 So.2d 1360 (La.App. 1st Cir.1982). In Hartford, this court specifically held:
      We find as a matter of law that the duty of a parole agent to supervise the activities of a juvenile parolee who is under the legal custody of another does not include the duty to protect plaintiffs from the harm caused here (fire damage to a store), albeit an affirmative showing of negligence and proximate cause.
      
        Hartford, 413 So.2d at 1362. (Emphasis added.) Because Jeremy was under the legal custody of the DPSC in the instant case, we find that the principles enunciated in Hartford are not applicable here.
     