|2This mаtter is before us on appeal by plaintiffs, Altheia LeBlanc, individually and on behalf of the minor child, Tynari LeBlanc; Eula LeBlanc; Cheryl Miller, individually and on behalf of the minor children, Kim Nicolas and Shenita Nicolas; and Christine Robinson, individually and on behalf of the minor children, Eric Robinson and Dе’Eric Robinson (hereinafter referred to collectively as “plaintiffs”), from the trial court’s grant of summary judgment in favor of the defendant, Bouch-ereau Oil Company, Inc. (“Bouchereau Oil”). For the following reasons we affirm the judgment.
FACTUAL BACKGROUND 1
On July 23, 2006, at approximately 8:00 p.m., defendant, Edward LeBlаnc (“Le-Blanc”), who had been drinking alcohol and whiskey and smoking crack cocaine earlier in the day, returned to the home of his sister, Altheia LeBlanc (one of the plaintiffs herein) where he was “staying.” After an argument with Altheia about her refusal to allow him into the mobile home without first removing his muddy shoes, LeBlanc left the home, rode his bicycle to the defendant’s Chevron station approximately one block away, and purchased fifty cents’ worth of gasoline, which he placed in a two-liter coke bottle. He returned to his sister’s home approximately thirty minutes later and knocked on the door. After Altheia opened the door to her home, Le-Blanc threw gasoline on the floor, then onto her, and ignited a cigarette lighter, setting Altheia and the mobile home on fire. LeBlanc then ran away.
LeBlanc’s mоther, Altheia’s minor son, Altheia’s two minor cousins, and LeBlanc’s two minor nephews were also present in the home and were forced to flee the home to escape the flames. As a result of Le-Blanc’s actions, Altheia ^received third-degree burns on 55% of her body. Lе-Blanc’s mother, Eula LeBlanc, received second and third-degree burns to her legs and arm while trying to escape through the doorway. The five minor children escaped through a window, but did not suffer physical injuries. 2
In rеsponse, Bouchereau Oil filed a motion for summary judgment, essentially contending that a seller of gasoline does not have a duty to assess the competency of an adult customer before allowing him to purchase gasoline. The matter was set for hearing before the trial court on March 24, 2008. On March 81, 2008, the trial court issued reasons for judgment in support of its finding that the Chevron attendant did not have a duty to assess the competency of a gasoline purchaser prior to a sale and that Bouchereau Oil was accordingly entitlеd to summary judgment in its favor as a matter of law. A written judgment dismissing plaintiffs’ claims against Bouchereau Oil, with prejudice, was signed by the trial court on April 14,2008.
Plaintiffs appeal, contending that the trial court erred as a matter of law in: (1) finding that a vendor of gasoline is not obligated to discover the “obvious incompetence” as a result of intoxication of a gasoline purchaser; and (2) failing to find that Bouchereau Oil’s own safety policy established a duty to assess the competence of a purchaser of gasoline.
I ¿DISCUSSION
A motion for summary judgment is a рrocedural device used to avoid a full-scale trial when there is no genuine factual dispute. It should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, thе movant need only show that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be ablе to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2);
Asberry v. The American Citadel Guard, Inc.,
2004-0929 (La.App. 1st Cir.5/6/05),
Appellate courts review summary judgment
de novo
under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.
Granda v. State Farm, Mutual Insurance Company,
2004-2012 (La.App. 1st Cir.2/10/06),
Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of LSA-C.C. art. 2315. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) whether the defendant had а duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) whether the plaintiff was damaged (the damages element).
Cusimano v. Wal-Mart Stores, Inc.,
2004-0248 (La.App. 1st Cir.2/11/05),
The threshold question in a duty-risk analysis is whether the defendant owed a duty to the plaintiff. Whether a duty is owed is a question of law.
Bezel v. Original Library Joe’s, Inc.,
2001-1586 (La.App. 1st Cir.11/8/02),
The determination of whether a particular risk of harm is reasonable is alsо a matter wed to the facts of the case. In general, it is improper to characterize a risk as unreasonable without considering the surrounding circumstances.
Griffin v. Shelter Insurance Company,
In support of its claim that summary judgment was properly granted herein, Bouchereau Oil contends that there is no reported decision in the State of Louisiana that holds a gas station attendant liable for selling gasoline to a person who uses that gasoline in an intеntional assault. Bouch-ereau Oil further contends that the duty plaintiffs seek to impose herein would improperly require gas station attendants to assess the sobriety of each and every patron who came into the station to purchase gasoline.
In oppоsition to Bouchereau Oil’s arguments in favor of summary judgment on the issue of whether a duty exists, plaintiffs counter that
Jones v. Robbins, 289
So.2d 104 (La.1974), recognized and established a duty on behalf of a vendor to refuse to sell gasoline to an “incompetent
|7In
Jones,
where a station attendant allowed a six-year-old to purchase gasoline that was ultimately used to create а fire causing burns to her four-year-old sister, the Court found a duty was owed by the vendor of gasoline “not to place it in the hands of those who, by reason of age or other disabilities, are unaware of the special propensities of the material, and of precautionary measures which must be taken when using or storing it.”
Jones v. Robbins,
On review, we do not find that any duty recognized in
Jones
applies herein. As set forth in
Jones,
the duty of a vendor not to place gasoline in the hands of an incompetent or small child of tender age, as recognized under the particular cirсumstances therein, exists to protect small children, inasmuch as a six-year-old would have little reason to understand the dangerous propensities of gasoline and no recognition or ability to “treat gasoline differently than they would water, milk or other liquids[,] which have no dangerous propensities for exploding or becoming ignited.”
See Jones v. Robbins,
In the instant case, LeBlanc’s testimony clearly establishes that he acted intentionally when he purchased and later used the gasoline to set his sister and her home on fire, after dousing her with the gasoline. Notably, the duty discussed in
Jones
has not been extended to encompass the sale of gasoline to an adult, who is aware of its dangerous propensities, like LeBlanc. Importantly, the duty set forth in
Jones
was not extended to circumstances involving the sale of gasoline to a twelve-year-old сhild.
See Daniels v. Datiphine,
Thus, we find the trial court correctly determined that under the undisputed facts of this case, plaintiffs would be unable to satisfy their evidentiary burden of proof at trial, as there was no duty owed or imposed, as a matter of law — either statutory, jurisprudential, or arising from general princiрles of fault — upon Boucher-eau Oil to protect against these acts by LeBlanc.
Further, to the extent that plaintiffs argue that Bouchereau Oil had a duty not to allow LeBlanc to purchase gasoline because he was “visibly intoxicated” and thereby “incompetent,” we note that the Chevron attendant, Ursula Landry White, specifically testified that on the day in question, LeBlanc came into the station and bought between fifty and seventy cents’ worth of gas. She stated that he did not appear “drunk” or intoxicated and that she had never seеn him in a “drunk” or intoxicated state. Mrs. White testified that LeBlanc came in, laid his money on the counter, asked for gas, and “ran out.” She stated that from the counter where she works, she could not observe LeBlanc at the pump where he was pumping gas,
In addition, the videotape of Mr. Le-Blanc paying for the gasoline at the Chevron station shows no visible or discernible evidence of impairment. Thus, although Mrs. White admitted she was trained not to sell gasoline to someone who appeared to be drunk, the only showing on this issue is Mrs. White’s testimony that based on her observations, LeBlanc did not appear to be “drunk.” Thus, even if this court werе to determine that Bouehereau Oil had a duty to not 19sell gasoline to a person who was visibly intoxicated, plaintiffs have failed to come forward with any evidence to show that they could satisfy their evi-dentiary burden of proof on this issue at trial or that the defendant breаched any duty owed herein. Further, given the evidence of record and the undisputed facts herein, we find nothing in the record before us to show any duty owed on the part of Bouehereau Oil, under the undisputed facts, for this particular risk of harm.
3
Moreover, there is nothing on the reсord before us to show an unreasonable risk of harm to plaintiffs was created by the sale of gasoline to LeBlanc.
4
See Daniels v. Dauphine,
CONCLUSION
On the record before us, we find no error in the trial court’s conclusion that under the undisputed facts, Bouehereau Oil was entitled to judgment in its favor as a mаtter of law. Thus, we affirm the April 14, 2008, judgment of the trial court. Costs of this appeal are assessed to the plaintiffs/appellants.
AFFIRMED.
DOWNING, J. dissents.
Notes
. This section contains a recitation of the undisputed facts.
. Plaintiffs subsequently amended their petition to include as plaintiffs, two additional minors who аre second cousins of Altheia and
. Although Raymond Chapman, LeBlanc's uncle, testified that he spoke to LeBlanc shortly before he purchased the gasoline and that he appeared to bе “drunk,” as per the uncontradicted evidence, Mrs. White’s testimony is that LeBlanc did not speak to her.
. Given our determination that Bouehereau Oil had no legal duty herein, we further note that even if there was a legal duty that could be imposed we find that any such duty could not encompass the risks of LeBlanc’s actions herein.