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SCOTT LOUPE and NATALIE LOUPE, ON BEHALF OF THEIR MINOR CHILD, G.L.1 v. THE ROMAN CATHOLIC CHURCH OF THE DIOCESE OF BATON ROUGE, ST. GEORGE SCHOOL, JASON WARREN MURRAY and CAROLINE BECK MURRAY, INDIVIDUALLY and ON BEHALF OF THEIR MINOR CHILD J.M.
Scott Loupe and Natalie Loupe, the parents of a child injured on the playground at St. George School, appeal a summary judgment dismissing their claims against the Roman Catholic Church of the Diocese of Baton Rouge and St. George School. After review, we reverse the portion of the April 20, 2022 judgment excluding Exhibit A attached to the Loupes’ opposition to the motion for summary judgment, affirm the portion of the judgment that excluded Exhibit D attached to the Loupes’ opposition to the motion, and reverse the portion of the judgment granting summary judgment in favor of the Roman Catholic Church of the Diocese of Baton Rouge and St. George School and dismissing the Loupes’ claims asserted against these defendants. The case is remanded for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
G.L. and J.M. were classmates in Lauren Keyser's developmental kindergarten class at St. George School for the 2017-2018 school year. On December 11, 2017, when G.L. and J.M. were both five years old, they were involved in a playground incident in which G.L. sustained injuries. According to G.L., J.M. intentionally pushed him, then jumped on him. Conversely, J.M. described the incident as an accident that occurred while the boys were playing tag during recess.
G.L.’s parents, Scott and Natalie Loupe, filed a suit for damages against J.M.’s parents, Jason and Caroline Murray; St. George School; and the Roman Catholic Church of the Diocese of Baton Rouge. Thereafter, motions for summary judgment were filed by St. George School and the Roman Catholic Church of the Diocese of Baton Rouge (the School Defendants) and the Murrays. The Loupes opposed both motions. The Murrays and the School Defendants filed separate responses objecting to some of the Loupes’ opposition evidence.
After a hearing, the trial court signed two judgments in favor of all defendants. The first judgment, dated April 20, 2022, excluded Exhibits A through H of the Loupes’ opposition evidence to the Murrays’ motion for summary judgment, granted the Murrays’ motion, and dismissed the Loupes’ claims against them. The second judgment, also dated April 20, 2022, excluded Exhibits A through D of the Loupes’ opposition evidence to the School Defendants’ motion for summary judgment, granted the School Defendants’ motion, and dismissed the Loupes’ claims against them. The Loupes appealed both judgments.
In this appeal, we review the summary judgment rendered in favor of the School Defendants. In the appeal filed under this court's docket number 2022 CA 1151, another panel of this court reviews the summary judgment rendered in favor of the Murrays.
ASSIGNMENTS OF ERROR
On appeal, the Loupes first argue that the trial court erred by excluding Exhibits A and D attached to their opposition to the School Defendants’ motion. Next, the Loupes assert that summary judgment was improperly granted because the documents establish a genuine issue of material fact regarding the School Defendants’ knowledge of J.M.’s previous “violent behavior towards students” and his propensity for hitting and rough play. Given J.M.’s prior actions, the Loupes maintain that his conduct on the playground on the date G.L. was injured was foreseeable and preventable. The Loupes similarly assert that a genuine issue of material fact remains regarding the causal connection between G.L.’s injuries and the School Defendants’ actions and inactions concerning their supervision and discipline of J.M.
Summary Judgment Standard and Applicable Law
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. Appellate courts review the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Jefferson v. Nichols State University, 2019-1137 (La. App. 1st Cir. 5/11/20), 311 So.3d 1083, 1085, writ denied, 2020-00779 (La. 11/4/20), 303 So.3d 623. A court shall grant summary judgment if the pleadings, memorandum, and admissible supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3) and (4); Jefferson, 311 So.3d at 1085. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Jefferson, 311 So.3d at 1085.
The summary judgment movant maintains the burden of proof. La. C.C.P. art. 966(D)(1). Nevertheless, if the movant will not bear the burden of proof at trial on the issue before the court on the motion, his burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and, if appropriate, the court shall render summary judgment against him. La. C.C.P. arts. 966(D)(1) and 967(B).
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.2 La. C.C.P. art. 966(A)(4). Documents that are not included in the exclusive list set forth in Article 966(A)(4) are not allowed to be filed unless they are properly authenticated in a deposition or affidavit to which they are attached. See La. C.C.P. art. 966 -- Comments -2015 -- comment (c); Lucas v. Maison Ins. Co., 2021-1401 (La. App. 1st Cir. 12/22/22), ____ So.3d ____, 2022 WL 17843960, *7. See also Hooper v. Lopez, 2021-1442 (La. App. 1st Cir. 6/22/22), 344 So.3d 656, 663-64, as clarified on rehearing (9/1/22), writ denied, 2022-01421 (La. 11/22/22), 350 So.3d 501 (wherein this court found that a video attached to a motion for summary judgment was admissible pursuant to Article 966(A)(4), because it was authenticated by a witness and attached to his deposition, which was also attached to the motion.)
A school board, through its agents and teachers, owes a duty of reasonable supervision over students. La. C.C. art. 2320. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Wallmuth v. Rapides Parish School Board, 2001-1779 (La. 4/3/02), 813 So.2d 341, 346. Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and proof of a causal connection between the lack of supervision and the accident. The risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Wallmuth, 813 So.2d at 349.
Exclusion of the Loupes’ Exhibits A and D
We first address whether the trial court erred in excluding Exhibits A and D filed with the Loupes’ memorandum in opposition to the School Defendants’ motion for summary judgment.3 Exhibit A is an email exchange, and Exhibit D is an excerpt from the St. George School's 2017-2018 Parent & Student Handbook. The trial court agreed with the School Defendants that Exhibits A and D were not competent summary judgment evidence pursuant to La. C.C.P. art. 966(A)(4) and excluded these documents. In this procedural posture, we review the trial court's evidentiary ruling on under the abuse of discretion standard. Pottinger v. Price, 19-0183 (La. App. 1st Cir. 10/23/19), 289 So.3d 1047, 1053.
The Loupes attached Ms. Keyser's full deposition transcript as an exhibit to their opposition to the School Defendants’ motion. They maintain that Exhibits A and D were attached to Ms. Keyser's deposition and are, therefore, proper summary judgment evidence.4
During her deposition, Ms. Keyser was presented with an email dated November 3, 2017. Reading the email, Ms. Keyser testified that the document “says he was hitting students, rough playing, those kinds of impulse control behaviors.” Ms. Keyser further confirmed that she referred disciplinary matters to Karla Prejean, the disciplinarian at St. George School and the recipient of the November 3, 2017 email. Exhibit 3 attached to Ms. Keyser's deposition was identified as “11-3-17 email.”
Exhibit A attached to the Loupes’ opposition to the School Defendants’ motion is a November 3, 2017 email exchange between Ms. Keyser and Ms. Prejean. In Ms. Keyser's email to Ms. Prejean, she discusses J.M.’s “behavior concerns,” including hitting students and “rough play on the playground.” Thus, the summary judgment evidence establishes that Exhibit A attached to the Loupes’ opposition to the School Defendants’ motion for summary judgment is the same document attached to Ms. Keyser's deposition as Exhibit 3, which was authenticated by Ms. Keyser. See La. C.E. art. 901. Therefore, this document is proper summary judgment evidence pursuant to La. C.C.P. art. 966(A)(4). The trial court abused its discretion by excluding this exhibit, which we now consider in our de novo review.
Ms. Keyser was also presented with handbook excerpts during her deposition, which were attached as Exhibit 1 and identified as “handbook excerpts in globo.” She did not identify the handbook excerpts, testify as to her familiarity with the document, or confirm the excerpts were what they purported to be. Consequently, these handbook excerpts, which were purportedly attached to the Loupes’ opposition to the School Defendants’ motion as Exhibit D, were not authenticated by Ms. Keyser. See La. C.E. art. 901. This exhibit does not satisfy the requirements of Article 966(A)(4), and the trial court properly excluded Exhibit D.
Genuine Issues of Material Fact
We next consider the Loupes’ remaining assignments of error, which focus on the School Defendants’ knowledge of J.M.’s disciplinary and behavioral issues before this incident and the foreseeability of J.M.’s conduct on the playground the day G.L. was injured. The Loupes also assert that, because the School Defendants knew that J.M. had prior behavior problems, they were required to exercise a “heightened amount of supervision over J.M., particularly on the playground.”
The record reflects that on November 3, 2017, a little over one month before this incident occurred, Ms. Keyser contacted Ms. Prejean, the school disciplinarian, via email with the caption “Student Behavior-[J.M.].” Ms. Keyser's email stated:
[J.M.] has had many documented behavioral concerns throughout the school year. Behaviors of concern include: kicking students while walking down the hall, punching students in the bathroom, constant rough play on the playground, misbehavior at special classes, hitting students in the back while sitting on the carpet and recently slapping another student in the face at carpool. [J.M.] has also colored on the classroom floor twice during nap time.
Because this email was sent on Friday morning, Ms. Prejean advised that she would speak to J.M. on Monday, apologizing for the delay. Ms. Keyser responded via email on Friday afternoon, thanking Ms. Prejean and further advising, “Today he was wrestling another student in music class, hit a student on the playground and took a block from the block center and hid it in his pocket.”
The summary judgment record also reflects that G.L. and J.M. were deposed two years after the incident, when they were seven years old, and gave conflicting accounts of what transpired on the playground. G.L. recalled that he was playing tag but left the game when J.M. joined in. G.L. did not want to play with J.M., because earlier in the school year J.M. had twisted his fingers more than once when they were standing in line at school. Without telling the other students, G.L. quit playing tag and walked away. G.L. explained that he was about to climb a playset ladder when J.M. pushed him from the side. G.L. fell to the ground, and J.M. jumped on him. G.L. acknowledged that J.M. likely thought he was still playing tag, but he also believed that J.M. jumped on him “on purpose.”
J.M. recalled a different scenario. If his testimony is accepted as true, this incident was an accident that occurred when five-year-old boys were playing a game of tag. J.M. testified that he, another boy, and G.L. were playing tag, and J.M. was “it.” According to J.M., he was running really fast, chasing G.L. to tag him as “it,” when G.L. stopped. Unable to stop himself, J.M. ran into G.L., who fell to the ground. J.M. fell on top of G.L. J.M. testified that the incident was an accident and denied that he fell onto G.L. “on purpose.”
The boys’ contradictory testimony creates a genuine issue of material fact as to what occurred when G.L. was injured and, importantly, whether and to what extent J.M. acted in conformity with the problematic behaviors previously observed by Ms. Keyser.5 The resolution of this threshold issue requires a credibility determination, which may not be made on a motion for summary judgment. See Ladner v. REM Management, LLC, 2020-0601 (La. App. 1st Cir. 12/30/20), 318 So.3d 897, 901, writ denied, 2021-00151 (La. 3/23/21), 313 So.3d 271. If the trier of fact concludes that J.M.’s actions on the playground mirrored those noted in Ms. Keyser's email, it must next consider the reasonableness of the School Defendants’ response to J.M.’s behavior issues prior to this incident, including the reasonableness of the supervision provided, and the School Defendants’ ability to foresee that J.M. would continue to demonstrate the complained-of behaviors on the date G.L. was injured. CamSoft Data Systems, Inc. v. Southern Electronics Supply, Inc., 2018-1609 (La. App. 1st Cir. 12/3/18), 276 So.3d 1053, 1063, writs denied, 2018-02088, 2018-02018 (La. 2/11/19), 263 So.3d 1151, 1153 (A motion for summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts or the reasonableness of acts and conduct of parties.)
After our de novo review of the admissible, proper summary judgment evidence, we conclude that genuine issues of material fact remain and preclude summary judgment in favor of the School Defendants.
For the foregoing reasons, we conclude the trial court erred in excluding Exhibit A attached to Scott and Natalie Loupes’ opposition to the motion for summary judgment filed by the Roman Catholic Church of the Diocese of Baton Rouge and St. George School, and we reverse that portion of the April 20, 2022 judgment.
We find the trial court properly excluded Exhibit D attached to the Loupes’ opposition to the motion for summary judgment filed by the Roman Catholic Church of the Diocese of Baton Rouge and St. George School, and we affirm that portion of the judgment.
We also find the trial court erred in granting summary judgment in favor of the Roman Catholic Church of the Diocese of Baton Rouge and St. George School and dismissing the claims asserted against them by Scott and Natalie Loupe. Therefore, we reverse that portion of the April 20, 2022 judgment and remand this case to the trial court for further proceedings.
We assess costs of this appeal to the Roman Catholic Church of the Diocese of Baton Rouge and St. George School.
REVERSED IN PART, AFFIRMED IN PART; AND REMANDED.
2. 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 to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment and shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. La. C.C.P. art. 966(D)(2); May v. Carson, 2021-1156 (La. App. 1st Cir. 8/2/22), 348 So.3d 88, 90-91, writ denied, 22-01394 (La. 11/22/22), 350 So.3d 497.
3. The Loupes do not assign as error the trial court's exclusion of Exhibits B and C attached to their opposition to the School Defendants’ motion for summary judgment. Therefore, we do not address this issue.
4. The School Defendants assert that the Loupes argue, for the first time on appeal, that Exhibits A and D were attached to and authenticated by Ms. Keyser's deposition. We disagree and find the Loupes sufficiently raised the issue before the trial court in response to the School Defendants’ evidentiary objection. Additionally, pursuant to La. C.C.P. art. 2164, this court may render any judgment that is just, legal, and proper on the record on appeal. For reasons discussed in this opinion, the record reflects that Exhibit A is proper summary judgment evidence.
5. Additionally, J.M. denied hitting or tripping other children and squeezing their fingers. J.M.’s testimony, which contradicts the other summary judgment evidence, also creates a genuine issue of material fact, rendering summary judgment improper.
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Docket No: 2022 CA 1153
Decided: April 14, 2023
Court: Court of Appeal of Louisiana, First Circuit.
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