Listach v. W. Baton Rouge Parish Sch. Bd.

328 So.3d 450

Virginia Banks LISTACH, as Tutor of, and on Behalf of, the Minor Child, F.A.B., and Timothy Matthew Banks, Jr.

v.WEST BATON ROUGE PARISH SCHOOL BOARD, Wes Watts, Superintendent and Agent of West Baton Rouge Parish School Board, Cohn Elementary School, Cassy Brou, as Agent of Cohn Elementary School, Raymond Douglas, Individually and as Agent and Employee of Cohn Elementary School, West Baton Rouge Parish School Board, and New Beginnings Community Development Corporation, New Beginnings Community Development Corporation, Isonel Brown, Individually and as Agent of New Beginnings Community Development Corporation, ABC Insurance Company, DEF Insurance Company, UVW Insurance Company and XYZ Insurance Company

NUMBER 2021 CA 0079

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JUNE 09, 2021

Etta Kay Hearn, Audrey M. Lamb, Baton Rouge, LA, Counsel for Plaintiffs/Appellants, Virginia Banks Listach, as tutor of, and on behalf of, the minor child, F.A.B., and Timothy Matthew Banks, Jr.

Kyle M. Beasley, Joseph R. Pousson, Jr., Lake Charles, LA, Mark D. Boyer, Denham Springs, LA, Counsel for Defendants/Appellees, West Baton Rouge Parish School Board, Wes Watts, Cohn Elementary School, and Cassy Brou

Brian L. Reboul, Metairie, LA, Counsel for Defendant/Intervenor/ Appellee, ASI Lloyds

Jason P. Foote, Devin Caboni-Quinn, Metairie, LA, Counsel for Defendant/Appellee, Isonel Brown

BEFORE: WHIPPLE, C.J., CHUTZ, AND HESTER, JJ.

WHIPPLE, C.J.

Plaintiffs, Virginia Banks Listach, as tutor and on behalf of the minor child, F.A.B. ("the child"), and Timothy Matthew Banks, Jr., appeal a judgment of the trial court granting summary judgment in favor of defendants, West Baton Rouge Parish School Board, Wes Watts, Cohn Elementary School, and Cassy Brou, and dismissing plaintiffs’ claims against them with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2013, New Beginnings Community Development Corporation ("New Beginnings") sponsored an after-school enrichment program for students, providing its own programs and staffing, and utilizing the campus and facilities of Cohn Elementary School with permission of the West Baton Rouge Parish School Board ("WBRPSB"). On October 9, 2013, F.A.B., a student enrolled in the after-school program, was injured while playing on the playground when Raynard Douglas, an employee of New Beginnings, kicked a football that hit the child in the eye.¹

As a result of injuries she sustained in this incident, F.A.B.’s paternal aunt and tutrix, Virginia Banks Listach, filed a petition for damages on behalf of F.A.B., along with her father, Timothy Matthew Banks, Jr., naming as defendants: WBRPSB; Wes Watts, superintendent of WBRPSB; Cohn Elementary School; Cassy Brou, principal of Cohn Elementary School; Raynard Douglas, individually, and through his employment with New Beginnings and WBRPSB; New Beginnings; Isonel Brown, individually,² and as owner and operator of New Beginnings and agent of WBRPSB; and the liability carriers of WBRPSB, Cohn Elementary, Mr. Douglas, and New Beginnings.

As to WBRPSB, Superintendent Watts, Cohn Elementary School, and Principal Brou (collectively referred to as "the defendants" herein), plaintiffs asserted claims of gross negligence in failing to ensure that New Beginnings maintain ongoing liability insurance and in subjecting the minor child to danger by failing to supervise and protect the child. Plaintiffs further sought punitive damages, damages for pain and suffering, mental anguish and distress, loss of enjoyment of life, and past, present, and future medical expenses for the injuries sustained by the child. Mr. Banks asserted claims for damages for loss of consortium, community, and enjoyment of his child, as well as related medical expenses, and Ms. Listach asserted claims for reimbursement of expenses and costs associated with the child's care.

Defendants filed a motion for summary judgment, seeking dismissal of plaintiffs’ claims against them on the basis that: (1) Mr. Douglas was not acting in the course and scope of his employment with WBRPSB at the time of the accident and thus, WBRPSB was not vicariously liable for his actions; (2) defendants are entitled to the Recreational Use Immunity provided by LSA-R.S. 9:2791 and 9:2795 ; (3) defendants had no duty to ensure that New Beginnings had valid liability insurance before allowing New Beginnings to use the premises; and (4) any failure to ensure that New Beginnings maintained liability insurance is not a legal cause for the subject accident herein. In support of their motion, defendants submitted the deposition testimony of Principal Brou and Mr. Douglas.

Plaintiffs opposed the motion, and although they conceded that Mr. Douglas was an employee of New Beginnings during the operation of the after-school program and not an employee of WBRPSB at the time, they maintained that WBRPSB nonetheless had a "duty and responsibility" to ensure that programs operating on its campus offering enrichment to its students have in place, before and during the operation of these programs, a valid liability policy to protect the safety of the children involved and that this alleged failure to require compliance with school policy, mandating that an insurance policy be in place prior to the operation of an enrichment program, exposed the children participating in the program to undue harm. In opposition to the motion for summary judgment, plaintiffs relied on the depositions presented by defendants and further offered: the deposition testimony of Timothy Banks, Jr., Virginia Banks Listach, F.A.B., and Wes Watts; "Memorandums of Understanding" executed by David Coroan, the WBRPSB Superintendent, and Principal Brou; and the affidavit of Virginia Banks Listach.

Following a hearing on August 31, 2020, the trial court issued written reasons granting defendants’ motion for summary judgment.³ On September 30, 2020, the trial court signed a judgment, granting the defendants’ motion and dismissing all of plaintiffs’ claims against these defendants with prejudice.⁴

Plaintiffs now appeal, contending that the trial court erred in: (1) finding that plaintiffs failed to produce a genuine issue of material fact; (2) finding that defendants’ failure to require, maintain, and ensure liability insurance coverage pursuant to LSA-R.S. 9:2800.22 did not constitute gross negligence; and (3) failing to find that defendants were responsible for their failure to protect the children from foreseeable harm by these acts, and that such failure, coupled with the collaborative nature of the relationship, resulted in gross negligence.⁵

LEGAL PRECEPTS

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. LSA-C.C.P. art. 966(A)(1) ; Murphy v. Savannah, 2018-0991 (La. 5/8/19), 282 So. 3d 1034, 1038. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966(A)(4). The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made. LSA-C.C.P. art. 966(D)(2).

The burden of proof on a motion for summary judgment rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1).

In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La. App. 1st Cir. 2/21/20), 298 So. 3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So. 3d 773.

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Leet v. Hospital Service District No. 1 of East Baton Rouge Parish, 2018-1148 (La. App. 1st Cir. 2/28/19), 274 So. 3d 583, 587. In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Janney v. Pearce, 2009-2103 (La. App. 1st Cir. 5/7/10), 40 So. 3d 285, 289, writ denied, 2010-1356 (La. 9/24/10), 45 So. 3d 1078. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 2017-1553, 2017-1554 (La. App. 1st Cir. 7/18/18), 255 So. 3d 16, 22, writ denied, 2018-1397 (La. 12/3/18), 257 So. 3d 194.

The Louisiana Supreme Court has defined "gross negligence" as the "want of even...