The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-05
LAFAYETTE PARISH SCHOOL BOARD
VERSUS
DARLENE M. CORMIER, ON BEHALF OF HER MINOR CHILD, JADE
CORMIER
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20030733
HONORABLE J. BYRON HEBERT, DISTRICT JUDGE
**********
ELIZABETH A. PICKETT
JUDGE
**********
Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and James T. Genovese,
Judges.
AFFIRMED.
L. Lane Roy
Brian T. Roy
Preis, Kraft & Roy
P. O. Drawer 94-C
Lafayette, LA 70509
Counsel for Plaintiff/Appellant:
Lafayette Parish School Board
Marshall M. Redmon
Holly G. Hanson
Phelps, Dunbar, LLP
445 North Blvd., #701
Baton Rouge, LA 70821-4412
Counsel for Defendant/Appellee:
Darlene M. Cormier
PICKETT, Judge.
The plaintiff, the Lafayette Parish School Board, appeals a judgment of the trial
court granting the defendant’s, Darlene Cormier’s, motion for summary judgment and
dismissing the plaintiff’s suit with prejudice and at the plaintiff’s costs.
FACTS
The facts of the case were set out by the trial judge in his reasons for ruling; we
quote approvingly (footnotes omitted):
This lawsuit is a claim made by the Lafayette Parish School Board
against Darlene Cormier, the mother of Jade Cormier. Plaintiff alleges
that N.P. Moss Elementary School Annex student Jade Cormier
negligently injured their employee, Mary Living, on February 7, 2002.
Plaintiff paid Mary Living workers’ compensation for her injuries, and
Plaintiff seeks in this action to recover from Defendant what it paid and
what it will pay in the future to Mary Living.
Defendant moved for summary judgment. The motion was heard
on July 12, 2004, and the Court took the matter under advisement. The
matter was submitted on additional briefs which were filed on July 27,
2004. In Plaintiff’s supplemental memorandum, the Plaintiff requested
a hearing before the Court on issues raised in the supplemental briefing.
However, the Court finds that additional argument is unnecessary.
The undisputed facts in this matter are that Mary Living was an
employee of N.P. Moss Elementary School Annex (N.P. Moss) and was
acting in the course and scope of her employment as a teaching assistant
with the Lafayette Parish School Board. Jade Cormier was an eleven
(11) year old male student at N.P. Moss. Mary Living was the teaching
assistant assigned to Jade Cormier’s classroom. On the day in question,
Jade purchased a toy gun from another student for one dollar ($1.00).
After he purchased the gun, Jade entered Mary Living’s classroom and
pointed the gun at her. He then simulated firing the gun by shouting
“bang.” The toy gun in question was described as being very small,
measuring “approximately 2-3 inches long; silver in color. Thickness
was maybe the size of a dime—very small.” As a result of the incident,
Mary Living suffered mental and emotional trauma and was
compensated by Plaintiff’s workers’ compensation carrier.
Further undisputed facts are that Jade Cormier was enrolled in the
Special Education Alternative Site Program (“SEAS”) at N.P. Moss
when the incident sued upon occurred. Prior to be being enrolled in
N.P. Moss, Jade underwent a Pupil Appraisal Evaluation administered
1
by Pupil Appraisal Services in 1999, when Jade was 8 years old. The
Pupil Appraisal evaluation found that Jade qualified for special
education services in the SEAS program at N.P. Moss because Jade had
an emotional and behavioral disorder. Plaintiff then prepared an
individualized education plan (“IEP”) for Jade. The IEP prepared by
Plaintiff stated that Jade’s primary exceptionality was emotional
disturbance, and that he also had difficulty with impulsive and
aggressive behavior.
LAW AND DISCUSSION
In Hines v. Riceland Drilling Co., 04-503 (La.App. 3 Cir. 9/29/04), 882 So.2d
1287, writ denied, 04-2705 (La. 1/07/05), 891 So.2d. 681, this court recounted the
law applicable to the appellate review of summary judgments, stating as follows:
In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181,
99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31, the Louisiana
Supreme Court discussed the standard of review of a summary judgment
as follows:
Our review of a grant or denial of a motion for
summary judgment is de novo. Schroeder v. Board of
Sup'rs of Louisiana State University, 591 So.2d 342
(La.1991). A motion for summary judgment will be
granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
material fact, and that the mover is entitled to judgment as
a matter of law.” La. C.C.P. art. 966(B). This article was
amended in 1996 to provide that “summary judgment
procedure is designed to secure the just, speedy, and
inexpensive determination of every action.... The
procedure is favored and shall be construed to accomplish
these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article
was further amended to specifically alter the burden of
proof in summary judgment proceedings as follows:
The burden of proof remains with the movant.
Thereafter, if the adverse party fails to
produce factual support sufficient to establish
that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine
issue of material fact. La. C.C.P. art.
966(C)(2).
2
Hines, 882 So.2d at 1289-90. Accordingly, we must undertake a de novo review of
the summary judgment.
On appeal, the plaintiff assigns the following as errors:
1. The trial court erred in granting the defendant's Motion for
Summary Judgment on issues raised sua sponte in not
allowing a contradictory hearing on this matter.
2. The trial court erred in applying an assumption of risk
defense, a defense which is no longer available under
Louisiana law.
3. The trial court erred in its application of the standard of
proof for summary judgment proceeding in requiring the
non-moving party to provide evidence of the ultimate issue
in order to defeat summary judgment.
4. The trial court erred in granting the defendant's Motion for
Summary Judgment in relieving Jade Cormier of liability
for the injuries caused Mary Living despite the complete
and total lack of evidence that Jade Cormier is not legally
subject to responsibility for his tortiuous [sic] conduct.
Appellant’s first assignment of error is completely without merit. Appellant
made no objection during the hearing on the defendant’s motion for summary
judgment to any issue raised by the defendant or the court during the hearing.
Further, the transcript of the hearing of the defendant’s motion shows that the
appellant neither requested a continuance nor that another hearing be scheduled, but
rather, requested that the plaintiff be given “an opportunity to brief this matter more
specifically.” The trial judge granted the plaintiff’s/appellant’s request. Thus, we
decline to consider this issue in light of plaintiff’s failure to contemporaneously
object or to “make[] known to the court the action which he desire[d]the court to
take.” La.Code Civ. P. art. 1635.
The appellant’s second assignment of error, that the trial court applied “an
assumption of risk defense,” is also without merit. In his reasons for judgment the
3
trial judge clearly stated the basis upon which he made his decision, i.e., “that the
undisputed facts support a finding that Jade Cormier has not breached the standard
of care applicable to him.” Nowhere does the trial court conclude that Mary Living
assumed the risk of any injury she claims she sustained.
In its third assignment of error the appellant/School Board argues that the trial
court misapplied “the standard of proof for summary judgment proceeding in
requiring the non-moving party to provide evidence of the ultimate issue in order to
defeat summary judgment.” Such is not the case. In the case at bar, the
movant/defendant would not bear the burden of proof at trial. In its reasons for
judgment the trial court correctly stated who would have the burden of proof at trial
and what that burden would be:
The Plaintiff has the burden of showing that Jade Cormier, as an 11-year-old
boy with his exceptionalities and under all the circumstances surrounding his conduct,
should have reasonably foreseen as a result of his conduct, some such psychological
injury as [was] suffered by Mary Living, and that Jade failed to exercise reasonable
care to avoid such injury.
Louisiana Code of Civil Procedure Article 966(C)(emphasis ours) provides:
(1) After adequate discovery or after a case is set for trial, a motion
which shows that there is no genuine issue as to material fact and that the
mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant'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 that there is an absence of factual support for one
or more elements essential to the adverse party's claim, action, or
defense. Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.
The facts in this case are not in dispute; the issue to be resolved is liability, a legal
determination. In support of her motion for summary judgment the defendant
4
submitted, among other things, her affidavit; the Lafayette Parish School Board
Individual Evaluation Integrated Report of her son, Jade; the Individualized Education
Program prepared for Jade by the Lafayette Parish School System; and excerpts from
the depositions of Mary Livings and Leah Arceneaux, a social worker employed by
the Board, meeting her initial burden of proof. Thus, it was incumbent upon the
plaintiff as the party who would bear the burden of proof at trial “to produce factual
support sufficient to establish that he will be able to satisfy his evidentiary burden of
proof at trial.” In response, the appellant filed no reports, no evaluations, no
depositions or parts thereof, and no affidavits. In short, appellants relied on the bare
allegations in its petition.
Recently, in Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533,
pp. 6-7 (La. 2/20/04), 866 So.2d 228, 233, the Louisiana Supreme Court reminded us
of the following:
[While] the initial burden of proof remains with the mover to show that
no genuine issue of material fact exists. . . . [Once] the mover has made
a prima facie showing that the motion should be granted, the burden
shifts to the non-moving party to present evidence demonstrating that
material factual issues remain. Once the motion for summary judgment
has been properly supported by the moving party, the failure of the
non-moving party to produce evidence of a material factual dispute
mandates the granting of the motion. Hardy v. Bowie, 98-2821, pp. 4-5
(La.9/8/99), 744 So.2d 606, 609-610.
In sum, the movant carried her initial burden of showing the absence of material facts,
and the School Board failed “to produce evidence of a material factual dispute”
leaving the trial court free to decide the issue of liability in light of the undisputed
facts before it.
In the final assignment of error the appellant argues that, in granting the
defendant’s motion for summary judgment, the trial court wrongly relieved the
5
defendant’s son “of liability for the injuries caused Mary Living despite the complete
and total lack of evidence that Jade Cormier is not legally subject to responsibility for
his tortiuous [sic] conduct.” On its face, this allegation is without merit. Plaintiff has
it wrong. It is not the defendant’s burden to bring forth evidence that Jade “is not
legally subject to responsibility for his tortiuous [sic] conduct.” Rather, it is the
plaintiff’s burden to bring forth evidence that Jade is responsible for his conduct and
that his conduct was, indeed, tortious.
Even though we find no merit to appellants allegations, we do review of the
granting of a motion for summary judgment de novo. Thus, we will proceed.
Louisiana Civil Code Article 2318 provides as follows:
The father and the mother and, after the decease of either, the
surviving parent, are responsible for the damage occasioned by their
minor or unemancipated children, residing with them, or placed by them
under the care of other persons, reserving to them recourse against those
persons.
The same responsibility attaches to the tutors of minors.
Our colleagues of the second circuit had two occasions to interpret Article 2318
in the same case, Jones v. Cobb. In Jones a child accidently struck another child in
the head with a bat at a baseball game and the parents of the child who was struck and
injured sued the parents of the child who swung the bat. In the first Jones v. Cobb,
34,926 (La.App. 2 Cir. 8/22/01), 793 So.2d 495 (Jones One), the case was before the
court following the trial court’s granting a motion for summary judgment filed by the
defendants in which the trial court found the batter was not negligent. Finding there
were genuine issues of material facts remaining, the second circuit reversed and
remanded for a full trial on the merits (in the case sub judice, there are no disputed
facts). Following the trial on the merits, in which the district court again found the
6
batter was not negligent, the plaintiffs appealed. Jones v. Cobb, 36,724 (La.App. 2
Cir. 12/30/02), 834 So.2d 13 (Jones Two). Both Jones cases addressed the parents
liability for acts of their child. Both opinions treated the issue identically. However,
Jones One went into greater detail:
By interpretation of La. C.C. art. 2318, our supreme court in Turner v.
Bucher, 308 So.2d 270 (La.1975), adopted a form of strict liability of the
parent for acts of the child. The court's ruling emphasized that the
activity causing the injury “would have been sufficiently negligent,
imprudent and careless to constitute civil negligence if the child had
been a person of discernment.” Id. at 271. The court held:
We conclude that although a child of tender years
may be incapable of committing a legal delict because of
his lack of capacity to discern the consequences of his act,
nevertheless, if the act of a child would be delictual except
for this disability, the parent with whom he resides is
legally at fault and, therefore, liable for the damage
occasioned by the child’s act. This legal fault is determined
without regard to whether the parent could or could not
have prevented the act of the child, i.e., without regard to
the parent’s negligence. It is legally imposed strict liability.
This liability may be escaped when a parent shows the harm
was caused by the fault of the victim, by the fault of a third
person, or by a fortuitous event.
Having made the threshold determination that a father is
responsible for the delicts of his minor child whether or not
the child is of sufficient age to be capable of discerning the
consequences of his acts, we need not determine whether
this particular child, Gregory Bucher, was possessed of the
requisite age and capacity to know the consequences of his
act. Such an inquiry would be irrelevant and immaterial in
answering the issue before us. The fact that the conduct
was tortious when measured by normal standards is enough
to render the father liable therefor.
Id. at 277.
At the time of the ruling in Turner v. Bucher, supra, Louisiana’s
strict liability law for damages caused by a person or thing in one’s
custody or garde was in its developmental stage with cases such as
Holland v. Buckley, 305 So.2d 113 (La.1974) and Loescher v. Parr, 324
So.2d 441 (La.1975), providing interpretation for La. C.C. arts. 2317, et
seq. Unlike the other settings where strict liability developed, no
7
subsequent ruling by the Louisiana Supreme Court has made express
application of the Turner decision in a case involving a child’s accident,
and the number of such cases has not been significant in rulings by the
courts of appeal. Despite the 1996 legislative changes for strict liability
regarding the custody of things and animals, La. C.C. art. 2318, as
applied in Turner, remains applicable.
Although the standard by which the actions of a child are
measured has not been applied in another supreme court case since
Turner, the court in its landmark ruling in Loescher v. Parr, supra,
elaborated on the standard as follows:
Recently, upon examination of the code scheme of fault
liability, we held that under Article 2318 the parent of a
minor child is liable for the damage caused by the child's
conduct which creates an unreasonable risk of injury to
others, even though the parent himself is not personally
negligent and the child is too young to be personally
negligent.
Id. at 446 (emphasis supplied).
The unreasonable risk of injury test was likewise discussed and
applied in Boyer v. Seal, 553 So.2d 827 (La.1989). There the plaintiff
asserted that strict liability for her injuries applied to the
defendant-owner of a cat which had merely brushed against plaintiff’s
leg, causing her to fall in the defendant’s home. Finding no liability, the
court held that the unreasonable risk of harm principle applied in
measuring the risk created by the actions of the defendant’s cat.
Discussing Louisiana’s strict liability law and citing Loescher, the court
stated that the “liability of the owner or guardian ‘arises from his legal
relationship to the person or thing whose conduct or defect creates an
unreasonable risk of injuries to others.’ ” Id. at 834.
The judicial process involved in deciding whether a person in
another’s custody, or a thing under garde poses an unreasonable risk of
harm is similar to that of taking into account all of the social, moral,
economic and other considerations as would a legislator regulating the
matter. Id. at 835; Entrevia v. Hood, 427 So.2d 1146 (La.1983). This
so-called risk-utility analysis has been more recently described by the
supreme court as follows:
There is no fixed rule for determining whether the thing
presents an unreasonable risk of harm. To assist the
trier-of-facts, we note that many factors are to be
considered and weighed, including: (1) the claims and
interests of the parties; (2) the probability of the risk
occurring; (3) the gravity of the consequences; (4) the
8
burden of adequate precautions; (5) individual and societal
rights and obligations; and (6) the social utility involved.
Dupree v. City of New Orleans, 99-3651 (La.9/1/00), 765 So.2d
1002, 1012.
Jones v. Cobb, 793 So.2d at 497-99 (footnotes omitted; emphasis in original).
In Gremillion v. State Farm Mut. Ins. Co., 331 So.2d 130 (La.App. 3rd Cir.
1976) a panel of this court stated:
It is well settled that in determining whether a child is negligent
due regard must be given to his age, maturity, intelligence and
knowledge, generally and as to the particular situation involved, as well
as all the facts and the circumstances of the case including the particular
risk that produced the injury. See Simmons v. Beauregard Parish School
Board, 315 So.2d 883, (La.App.3rd Cir. 1975) and authorities cited
therein.
Id. at 132-33.
The trial court noted:
Jade Cormier’s actions toward Mary Living must be compared to the
actions of a reasonably prudent 11-year-old boy who has the same
exceptionalities as does Jade. Additionally, Jade’s maturity level,
knowledge of the situation, and circumstances involved, as well as Jade’s
awareness of the risks involved must be gauged against the reasonably
prudent 11-year-old boy who has the same exceptionalities that Jade
possesses.
Based upon the current jurisprudence, we find the trial court applied the correct
standard of care in the case at bar. Applying that standard of care to the undisputed
facts in this case, the trial court concluded “that Jade Cormier has not breached the
standard of care applicable to him.” After examining the record, we agree with the
conclusion reached by the trial court. Inasmuch as we find Jade Cormier did not
breach the standard of care applicable to him, his mother cannot be held vicariously
liable for his actions.
9
Accordingly, for the reasons stated above, the judgment of the trial court is
affirmed. All costs of this appeal are assessed against the appellant, the Lafayette
Parish School Board.
AFFIRMED.
10