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Oliveaux v. St. Francis Medical Center12/15/2004
s. Pace and Ms. Foster were clearly required to exercise professional judgment and discretion in assessing the claim of abuse and deciding whether to remove Haley from her mother and Duncan. For this reason, the district court did not err in holding that CPS was entitled to the qualified immunity of Ch. C. arts. 611, 612 and R.S. 9:2798.1.
The opinion of Hawkins v. State, supra, on which Oliveaux greatly relies in brief, does not alter this conclusion. Hawkins, which predated the Children's Code, was only a summary judgment in which the Fourth Circuit refused to apply R.S. 9:2798.1 because the state failed to make a "threshold showing that its actions were either 'discretionary' or 'policy-making' " and genuine issues remained whether its conduct was "willful, outrageous, reckless or flagrant" under the former La. R.S. 14:403 E. By contrast, the evidence introduced herein overwhelmingly meets the criteria of both Ch. C. arts. 611 and 612 and R.S. 9:2798.1.
Oliveaux does not urge that the verdict absolving CPS is plainly wrong, but he alleges six deficiencies in the investigation and failure to comply with the Program Policy Manual. Because neither Dr. Perkins nor Sr. June gave Ms. Pace any information "documenting the existence of any abuse and/or neglect," resort to a "second professional collateral" did not appear to be required. As in Todd, supra, an omniscient caseworker might have foreseen Duncan's abusive propensity and thus averted Haley's tragic death. However, this record establishes substantial compliance with the Program Policy Manual, and no evidence that would remove CPS from the qualified immunity of the statutes.
Because of this conclusion, there is no merit to the contention that the district court erred in instructing the jury that the plaintiff must show gross negligence. Moreover, the particular charge is not confusing. It closely tracks the standard jury instruction listed in Alston Johnson, Civil Jury Instructions, 18 La. Civ. L. Treatise, ยง 3.13 (West Group, (c)2001), and was followed by the supreme court in Lenard v. Dilley, supra.
Finally, Oliveaux suggests that the jury form was drafted in such a manner that it was impossible to separate the jury's findings on fault from the jury findings on causation. The cumulation of liability and legal causation issues into one verdict form is within the discretion of the district court. Johnson v. First Nat'l Bank of Shreveport, 2000-870 (La. App. 3 Cir. 6/20/01), 792 So. 2d 33, writs denied, 2001-2770, 2783 (La. 1/4/02), 805 So. 2d 212, 213; Young v. First Nat'l Bank of Shreveport, 34,214 (La. App. 2 Cir. 8/22/01), 794 So. 2d 128, writs denied, 2001-2642 (La. 1/4/02), 805 So. 2d 209, 2001-2672 (La. 3/22/02), 811 So. 2d 936. In light of the extensive evidence regarding the CPS agents' investigation, and the sufficiency of the jury charge, there is no showing of prejudice. Smith v. Lincoln Gen'l Hosp., 27,133 (La. App. 2 Cir. 6/21/95), 658 So. 2d 256, writ denied, 95-1808 (La. 10/27/95), 662 So. 2d 3. These assignments of error lack merit.
Jury Charge
By his third assignment, Oliveaux urges the district court's jury charge presented the issues in an incorrect and unbalanced manner. He cites four specific errors: (A) Failure to instruct the jury that it may apportion fault between negligent and intentional tortfeasors; (B) Erroneous instruction that a later act of fault is an independent, intervening cause which "prevents" the imposition of liability on a tortfeasor earlier in the time sequence; (C) Erroneous instruction on independent contractor status; and (D) Failure to instruct the jury on the elements of damage recoverable in a survivorship case. He also urges that, taken as a
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