NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2023 CA 1053 IRMA TROSCLAIR VERSUS OSS MOTORS, INC., NEW YORK MARINE & GENERAL, DORIS S. MS.

PRUDHOMME, & SHELTER INSURANCE Judgment Rendered. 

### APR 17 2024

Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge

State of Louisiana Case No. 0693815 

### The Honorable William A.Morvant,Judge Presiding

Samantha M.B. Demuren Counsel for Plaintiff/ Appellant Jason A. Itkin 

### Caj Boatright Roland Christensen Noah M. Wexler 

### John Benjamin Bireley Houston, Texas

and A.M. "

### Tony" Clayton Michael Fruge' Richard J. Ward, III Brilliant P. Clayton 

### Michael C. Hendry Randall " Blue" 

### Gay,Jr. Port Allen, Louisiana Irma TroselairBrant J. Cacamo Counsel for Defendants/Appellees



### SidneyJ.Angelle Moss Motors, Inc. & New York Marine & New Orleans, Louisiana 

### General Insurance Company

BEFORE: GUIDRY, C.J., CHUTZ,AND LANIER,JJ.

2LANIER,J.



### The plaintiff,IrmaTrosclair, appeals asummaryjudgment ofthe Nineteenth Judicial District Court granted in favor of the defendants, Moss Motors, Inc. and New York Marine & 

### General Insurance Company ( collectively Moss). For the reasons that follow,we affirm. FACTS AND PROCEDURAL HISTORY On December 11, 

### 2019, Doris Prudhomme went to Moss's dealership in Lafayette, Louisiana to purchase a vehicle. Mrs. Prudhomme, who was eighty 

### years old atthe time and had been in a head-on collision on May 30, 2019, walked 

### with acane and was driven to the dealership by herniece, Lorita Menard. Prior to 

### arriving at the dealership, Mrs. Prudhomme had an appointment with her 

### orthopedic surgeon,who allegedly told Mrs. Prudhomme that she would be ableto drive.' 

### From there, Mrs. Prudhomme was driven to the dealership. Upon arriving 

### atthe dealership, Mrs. Prudhommewas greeted by salesperson Michelle Newland. Through the course ofher discussions with Ms. Newland, Mrs. Prudhomme 

### was neverasked why shewalked with acane, and Mrs. Prudhomme did not inform Ms. Newland about herprevious accident orthat she had not driven a vehicle in six 

### months. Ms.Newland made a copy ofMrs. Prudhomme's driver's license to verify that it had not expired, and then brought Mrs. Prudhomme to a vehicle for her to test drive. After Mrs. Prudhomme got into the driver's seat of the vehicle, she 

### requestedtotest drivethe vehicle inthe dealership's parking lotbeforetaking iton the public roads. However, Ms. Newland recommended that she instead test drive the vehicle on the public roads. 

### Following Ms. Newland's recommendation, Mrs.

This recommendation by the orthopedic surgeon comes from an excerpt from Mrs. Prudhomme's deposition and is arguably hearsay. We include it here simply forthe purpose of outlining the course ofevents on December 11, 2019, and place no evidentiary value upon the orthopedic surgeon' s statements. 3

### Prudhomme drovethe vehicle ontothepublic roadways. Following Ms.Newland's

directions, Mrs. Prudhomme drove the vehicle into the street and minutes later 

### rear-ended avehicle driven byMs.Trosclair. Ms. Trosclair filed a petition fordamages on February 10, 2020, naming as defendants Moss Motors, Inc., New York Marine & General Insurance Co. as its insurer, Mrs, Prudhomme, and Shelter Insurance as her insurer.2 Ms. Trosclair 

### claimed that the vehicle driven by Mrs. Prudhomme struck her vehicle while she was driving, resulting in injuries to her. Ms. Trosclair further claimed that Mrs. Prudhomme was drivingthe vehicle with Moss'spermission. On April 5, 2021, Moss filed a motion for summaryjudgment and attached as exhibits to the motion Ms. Trosclair's petition for damages, Moss' s answers to Ms. Troslcair' s interrogatories, Mrs. Prudhomme' s deposition, and Ms. Newland' s deposition. 

### In its supporting memorandum,Moss arguedthattherewas no genuine issue ofmaterial fact in that Moss did not negligently entrust one ofits vehicles to Mrs. Prudhomme when she collided with Ms. Trosclair. 

### On December 6, 2021, thetrial court signed asummaryjudgmentin favorof Moss and dismissed Ms. Trosclair' s claims against Moss with prejudice. Ms. Trosclair has appealed thisjudgment. ASSIGNMENT OF ERROR Ms. Trosclair' s sole assignment of error is that the trial court erred in 

### granting summaryjudgmentto Moss anddismissed herclaims against it. STANDARD OF REVIEW 

### The burden ofproofon a motion for summaryjudgment rests with the mover: here,the defendants. La. C.C.P. art. 966(D)(1). In this matter,the defendants will not bear the burden ofproof at trial; the burden of proof at trial rests with the plaintiff. 2Although Moss Motors, Inc. and Mrs. Prudhomme are residents ofLafayette,venue ofEast Baton Rouge Parish is proper due to the foreign insurers named as parties. See La. C.C.P. art. 42(7). 4Accordingly, once the defendants properly 

### support their motion for summary

judgment, then under La. C.C.P. art. 966(D)( 1), they need only point out to the trial court the absence of factual support for one or more elements essential to the plaintiff's negligence claim. See Pottinger v. Price, 2019-0183 ( 

### La. App. 1 Cir. 10123119), 289 So.3d 1047, 1054. Thereafter, the burden shifts to the plaintiff to produce factual support sufficient to establish the existence of a genuine issue of material fact, or that the defendants are not entitled tojudgment as a matter of law. La. C.C.P. art. 966(D)(1). 

### The plaintiffmay not rest on the mere allegations ordenials in herpleadings, but her responses must set forth specific facts showing thatthere is a genuine issue fortrial. If the plaintiff does not so respond, 

### summary judgment, if appropriate, shall be rendered against her. See La. C.C.P. art. 967(B); See Pottinger, 289 So. 3d at 1054. 

### In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court' s 

### determination ofwhether summaryjudgment is appropriate. Pottinger, 289 So.3d at 1054. DISCUSSION 

### Negligence claims under La. C.C. art. 2315 are examined using a Duty/Risk analysis. 

### The Duty/Risk analysis is a set of five separate elements that takes into account the conduct ofeach party and the peculiar circumstances ofeach case. The 

### plaintiffs bear the burden of proving each of the following elements: ( 1) the defendants' conduct was a cause -in - fact ofthe plaintiffs' injuries, (2) the defendants 

### had adutyto conformtheirconductto aspecific standard, (3) the defendants breached 

### that duty to conform their conduct to a specific standard, (4) the defendants' conduct

was the legal cause of the plaintiffs' injuries, and ( 5) actual damages. Joseph v. Dickerson, 1999- 1046, 1999- 1188 ( La. 1119/00), 754 So.2d 912, 916. A negative 

### answer to any of the elements of the Duty/Risk analysis prompts a no -liability determination. Id.

### One ofthe necessary considerations in the Duty/Risk analysis is to determine

what, ifany, duties were owed by the respective parties. Joseph, 754 So.2d at 916. 

### Generally, there is an almost universal legal duty on the part of a defendant in a negligence case to conform to the standard of conduct of a reasonable person in like

circumstances. Id. 

### Whether a legal duty exists, and the extent ofthat duty, depends on the facts and circumstances ofthe case and the relationship of the parties. Id. 

### Moss, as a lending car owner, has a duty to not entrust its car to another when it knows or has reason to know that the borrower is likely to use the car in a manner 

### involving an unreasonable risk of physical harm because of the borrower's age, inexperience, intoxication, incompetence, or otherwise. Restatement ( Second) of Torts § 390 ( 1965). 

### Having established that Moss owed a duty, the question then 

### becomes whether it breached that duty by failing to act in a reasonable and prudent

manner. See Joseph, 754 So.2d at 916. 

### In support of the motion for summary judgment, Moss submitted the 

### deposition ofMrs. Prudhomme, who testified that she was walking with the aid of 

### a cane on the day ofthe accident. Upon entering the dealership, Mrs. Prudhomme was greeted by Ms. Newland, and Ms. 

### Newland obtained a copy of Mrs. Prudhomme' s driver's license prior to the test drive. Mrs. Prudhomme testified 

### that other than taking her driver's license, Ms. 

### Newland did not ask her any questions about whether she was fit to drive a vehicle. Neither Mrs. Prudhomme 

### nor Ms. Menard offered any information to Ms. Newland about Mrs. Prudhomme's 

### fitnessto drive oraboutherprioraccidenton May 30,2019. The test drive vehicle shifted from park to drive through use ofa dial. Mrs. Prudhomme was not familiar with how to use the dial, so Ms. Newland demonstrated it for her. Mrs. Prudhomme then told Ms. Newland she wanted to 

### testdrive thevehicle around the parking lot. Ms. Newland then said, according to Mrs. Prudhomme, " Oh, no no ... 

### I want to show you something." Mrs.

### Prudhomme testified she wanted to drive in the parking lot because she " hadn't



### driven in so long," but she did not voice this reason to Ms. Newland. Ms. Newland wanted to demonstrate the " auto - hold" feature ofthe vehicle, 

### which prevents the vehicle from moving forward or backward when the driver takes her foot offthe brake. To do so, Ms. Newland directed Mrs. Prudhomme to 

### drive to and stop atthe inclined exit from the parking lot to Surrey Street. Mrs. 

### Prudhomme stated she felt comfortable driving the vehicle atthat point and turned onto Pinhook Road. Pinhook Road has four lanes, and Mrs. Prudhomme got into the left lane to turn onto Carmel Drive. Ms. Trosclair' s vehicle was ahead of Mrs. Prudhomme in that lane. As Mrs. Prudhomme approached Ms. Trosclair' s vehicle, 

### she attempted to apply the brake but stated that the brake was not working. Ms. 

### Newland told Mrs. Prudhomme to apply the brake,and Ms. Menard stated to Ms. Newland that Mrs. Prudhomme' s foot was on the brake. It was at that point that 

### thevehicle driven by Mrs. Prudhomme collidedwith Ms.Trosclair'svehicle. 

### Mrs. Prudhomme testified that earlier in the day, she had an examination with her orthopedic surgeon, and she asked him ifshe was in a suitable condition to drive. After he watched her walkwith her cane, sit down, and move her legs, he told her that she could drive. Mrs. Prudhomme also stated she had not consumed 

### alcohol ortaken anydrugs priorto drivingthevehicle. Moss also submitted the deposition ofMs. Newland, who testified that when she greeted Ms. 

### Prudhomme at the dealership, she was not aware that Mrs. 

### Prudhomme had been driven there by Ms. Menard, Mrs. Prudhomme informed Ms. 

### Newland that she was interested in buying a car, and that she had been 

### researchingvehicles onthe market and was particularly interested in a BMW SUV thatwas sold by Moss. 

### Ms.Newland did not recall Mrs. Prudhomme walkingwith 

### a cane but stated she had many elderly clients who walk slowly and therefore did notnotice anythingout oftheordinarywith Mrs. Prudhomme.

7Ms. Newland stated Mrs. Prudhomme specified the model ofthe vehicle she

was interested in, 

### because she felt it most closely resembled the vehicle she previously drove. She said Mrs. 

### Prudhomme expressed interest in the safety 

### features ofthe vehicle she wantedtotestdrive,which iswhy Ms. Newland wanted to show her the auto - hold feature. She also showed Ms. Prudhomme how to shift the vehicle from park to drive. Before Mrs. 

### Prudhomme started driving, Ms. 

### Newland adjusted the seat, steering wheel, and mirrors for Mrs. Prudhomme and observed that she looked comfortable in the vehicle. Ms. Newland did recall Mrs. 

### Prudhomme saying initially that shewanted totest drive in the dealership parking lot but stated the parking lot was too small for a sufficient test drive. On two 

### occasions, Ms. Newland asked Mrs. Prudhomme ifshewanted to leavethe parking lot. Mrs. Prudhomme then drove through the parking lot to get to Surrey Street, where Ms. Newland demonstrated the auto - hold feature. 

### As they continued with the test drive, and when Ms. Newland saw Mrs. Prudhomme approach Ms. Trosclair's vehicle, she told Mrs. Prudhomme to apply the brake and " braced" for an imminent collision. She did not recall Mrs. 

### Prudhomme saying that the brake was not working but did remember Mrs. Prudhomme having both ofher hands on the steering wheel. It was not until after the accident that Ms. Newland was informed that Mrs. Prudhomme had not driven 

### since her accident on May 30, 2019. She stated that Mrs. Prudhomme had not given her that information. 

### In response to Moss's motion for summary judgment, Ms. Trosclair submitted as exhibits the depositions of Mrs. Prudhomme and Ms. Newland, as 

### well as depositions ofMs. Menard and Coury Moss of Moss Motors, Inc., Ms.



### 3 Mr. Moss's testimony is not relevant to the issue ofnegligent entrustment, since he was not 

### presentduring Ms.Newland'sdiscussions with Mrs.Prudhomme in choosing avehicle, norwas he present for the test drive. Furthermore, he did not give any relevanttestimony as to Moss's testdriving policies orprocedures. 8Menard stated that Mrs. Prudhomme' s orthopedic surgeon said she was " good to go" and released her. She thought, but was not entirely positive, that the 

### orthopedic surgeon stated specifically that Mrs. Prudhomme was cleared to drive but remembered thatthe surgeon "cleared herofeverything." She stated that Mrs. 

### Prudhomme waswalking with acane onthe dayofthe accident. Ms. Menard then 

### drove Mrs.Prudhomme tothe dealership. 

### At the dealership, Mrs. Prudhomme and Ms. 

### Menard were met by Ms. Newland, who began discussing with Mrs. Prudhomme what kind ofvehicle she was interested in. Ms. Newland showed Mrs. Prudhomme an SUV, but Mrs. Prudhomme said that the vehicle was too large for her. At that time, Ms. Newland showed Mrs. Prudhomme a smaller SUV, which Mrs. Prudhomme test drove. She 

### did not recall any discussion between Mrs. Prudhomme and Ms. Newland 

### concerning the previous doctor visit or the previous accident of May 30, 2019. Mrs. Prudhomme entered the vehicle without assistance. Ms. Menard did not remember Ms. 

### Newland explaining the vehicle's features, such as how to put the vehicle in park or drive. She did remember, 

### however, the seat and steering wheel being adjusted for Mrs. Prudhomme. { She stated that the test drive and the route to take was Ms. Newland' s suggestion. Ms. 

### Menard testified that ifshe had any concerns with Mrs. Prudhomme's driving the vehicle, she would have stated such, but she did not. However, she did recall Mrs. 

### Prudhomme requesting totest drive in the parking lot, but Ms. Newland stated the vehicle needed to be taken on the road. Ms. Menard stated she heard Mrs. 

### Prudhomme tell Ms. Newland shewas uncomfortable with leaving the parking lot. 

### In the moments leading up to the accident, Ms. Menard did remember Mrs. 

### Prudhomme'sfootbeing onthe brake. Under the negligent entrustment theory, the lender of a vehicle is not responsible for the negligence ofthe borrower, unless he had or should have had

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### knowledge that the borrower was physically or mentally incompetent to drive.

Stokes v. Stewart, 1999-0878 (

### La. App. 1 Cir. 12122100), 774 So.2d 1215, 1219. 

### However, an owner ofan automobile who knowingly entrusts it to an intoxicated, 

### or otherwise incompetent, driver is responsible for the harm resulting from the incompetent operation ofthe vehicle. Ick. 

### The concept ofnegligent entrustment focuses on the ability ofthe driverto operate the vehicle safely. See Cowan v. Jack, 2005-0175 ( La. 

### App. 4 Cir. 12121/ 05), 922 So.2d 559, 565, writ denied, 2006-0174 ( La. 4124106), 926 So.2d 544. In order to prove a claim of negligent entrustment, a plaintiff must show that a lender had actual or constructive knowledge that the borrower was incompetent 

### or had an apparent disability at the time ofthe entrustment. See Cosey On Behalf 

### ofHilliard v. FlightAcademy ofNew Orleans, LLC,2019-0756, 2019-0785 ( La. 

### App. 4 Cir. 11112120), 365 So.3d 76, 89, writ denied, 2021- 00083 ( La. 3123121), 312 So.3d 1097. 

### We can find no authority which places a duty on an owner or lender ofa 

### vehicle to make an inquiry into one's driving habits or record when no reason exists to place the lender on notice ofthe borrower's disability or incompetence. Stokes, 774 So.2d at 1219. 

### In Stokes, a dumptruckdriven by Stokeswas hithead

### on byavehicle driven by Stewart,which left its lane oftravel. The vehicle driven 

### by Stewart was owned by a Mr. Perkins. Stewart was killed by the collision, and urine samples taken from Stewart tested positive for cocaine. A blood sample taken from Stewart revealed that his blood alcohol level was . 1 percent. Stokes, 774 So.2d at 1217. Stokes filed suit against the estate of Stewart, Perkins, and others. 

### Following a bench trial, ajudgment was rendered in favor ofStokes and against the estate of Stewart and.Perkins. Perkins appealed. Stokes, 774 So.2d at 1217. 

### Although the trial court had found Perkins vicariously liable for the damages

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### caused by Stewart, it rejected thetheory ofnegligent entrustment. This court both



### reversed the trial court's finding ofvicarious liability on the part of Perkins and affirmed the rejection of negligent entrustment. 

### As to the theory of negligent entrustment, this court acknowledged there was credible evidence that Perkins 

### knew Stewartwas adrug user, butthe record did notdemonstratethat Perkins had reason to know on the day ofthe accident that Stewart was incompetentto drive. Stokes, 774 So.2d at 1220. In the instant case, the evidence presented to the trial court indicates that Ms. 

### Newland would have observed that Mrs. Prudhomme was elderly but may not have noticed that Mrs. Prudhomme walked with the aid of a cane. Regardless, Ms. 

### Newland testified that she had numerous elderly clients who walked slowly, so even if she had noticed Mrs. Prudhomme walking with a cane, it would not be 

### enoughto putMs.Newland on noticethatMrs.Prudhommewas unfitfordriving.

Further, although it appears Mrs. Prudhomme voiced that she was 

### uncomfortable with test driving the vehicle outside the dealership parking lot, she did not tell Ms. Newland why she felt that way. She never explained to Ms. 

### Newland that she was in a prior accident on May 30, 2019, and she did not state that she had not driven since that time. Ms. Menard, who also would have known these facts, did not tell them to Ms. Newland. In fact, Ms. Menard testified she 

### would have stated ifshe had concerns with Mrs. Prudhomme driving, but she did

not. The record even indicates that no one, not even Mrs. Prudhomme, thought she was unfit to drive. 

### Priorto going to the dealership, her orthopedic surgeon's examination led her to the conclusion that she was fit to drive, and Ms. Menard 

### then drove her to the dealership. Upon entering the dealership, Mrs. Prudhomme discussed her interest in test 

### driving certain BMW SUVs that she had 

### independently researched. Although elderly, Mrs. Prudhomme' s actions do not

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### present anything out ofthe ordinary that Ms. Newland should have noticed that

would have indicated to her that Mrs. 

### Prudhomme was either physically or 

### mentally incapable ofdriving. Based on the aforementioned jurisprudence, it was not incumbent upon Ms. Newland to inquire further into Mrs. Prudhomme' s 

### condition and could rely upon her own observations of Mrs. Prudhomme and the information that was presented to her. 

### Moss successfully presented evidence to show that they did not negligently entrust one oftheir vehicles to Mrs. Prudhomme. The burden then shifted to Ms. Trosclair to show that a material issue of fact still existed. Mrs. Trosclair presented much ofthe same evidence that Moss presented, and the inclusion ofMs. Menard' s deposition corroborated much ofMrs. Prudhomme' s and Ms. Newland's testimony. 

### Any remaining disputed facts are not material to the issue ofnegligent

entrustment. 

### Ms. Trosclair has failed in her burden of proving that an issue of material fact remained as to whether Moss breached its duty to not knowingly entrust its vehicle to a person who was incompetent to drive. DECREE 

### The summaryjudgment ofthe Nineteenth Judicial District Court in favor of the appellees Moss Motors, Inc. and New York Marine & General Insurance 

### Company, and against the appellant, Irma Trosclair, is affirmed. All costs of this appeal are assessed to Ms. Trosclair. AFFIRMED.

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