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Harris v. Stimac9/22/2000
Whipple, J concurs in the result.
The issue raised on appeal in this personal injury action is whether the State of Louisiana, Department of Public Safety and Corrections/Division of Youth Services (DPSC) can be held liable for the unintentional, tortious actions of minors who are in its custody.
At age fourteen, Jeremy Wendt was charged with burglary of a delivery truck and with simple burglary of an inhabited dwelling. Pursuant to a plea bargain, the state reduced the charges to trespassing. Wendt was adjudicated a child in need of supervision and committed to the custody of the DPSC for care and treatment for a period not to exceed his eighteenth birthday. On June 6, 1989, Wendt was admitted to the Joy Home for Boys in Shreveport, Louisiana.
In September of 1989, the executive director of Joy Home for Boys wrote to Peter Bon Homme, supervisor for the placement unit in the district office of DPSC, stating that the home was having problems with Wendt such as "sniffing gasoline, refusing to follow instructions, refusing to go to bed at night, leaving the dorm without permission, making threats on counselors, and refusing to get up in the morning." Shortly thereafter, Wendt was removed from Joy Home for Boys and brought to the home of his grandmother, Ann Stimac. At the time of his transfer, no other residential facilities were available.
After Wendt's transfer to his grandmother's home, Mark Carter, a caseworker with DPSC, was assigned to handle Wendt's case. Carter maintained telephone contact with Wendt, his mother and his grandmother on a regular basis. He conducted home visits and arranged for Wendt to undergo a psychological evaluation by Dr. Frederick Lee Black, who opined that Wendt might be capable of affecting an adequate adjustment within the home community setting under certain circumstances. Based on the report by Dr. Black, Carter allowed Jeremy to remain in his grandmother's home. On several occasions, Carter contacted Wendt and the local middle school regarding Wendt's enrollment in school. On March 8, 1990, Wendt telephoned Carter to advise him that he had enrolled into the South Scotlandville Alternative Learning Center, but had not attended classes. Carter warned Wendt that the procrastination could result in reassignment to a group home.
On March 14, 1990, a day Wendt should have been in school, Wendt, 17-year-old Jamie Mascarella, and Jason Day, another friend, were watching television in the living room of Ann Stimac's home, while she was at work. Mascarella went to Wendt's room to get a guitar, returned to the living room, sat in a chair and began to strum the guitar. After seeing a gun on television, Wendt went to his room to get a 20-gauge shotgun that his brother had given him and that he used to hunt squirrels. He carried the gun under his arm with the stock pointed downward. Upon returning to the living room, he turned to the right and the gun fired striking Mascarella in the face. Wendt was fifteen years old at the time. It is undisputed that the shooting was accidental.
As a result of the shooting, Pamela Harris filed suit individually and on behalf of her minor son, Jamie Mascarella. Named as defendants were Jeremy Wendt, Ann Stimac, Cassandra Stimac (Wendt's mother), Safeco Insurance Company, and DPSC.
DPSC filed a motion for summary judgment, which was granted by the trial court. Plaintiffs appealed that judgment to this court. This court reversed the trial court in Harris v. Stimac, 93-2289 (La.App. 1 Cir. 3/3/95), 653 So.2d 15, writ denied, 95-1318 (La. 9/15/95), 660 So.2d 460. The case was remanded to the district court for trial on the merits.
On December 11, 1996, the t
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