LARICHA ALFRED AND JOHN ALFRED v. WALGREEN LOUISIANA COMPANY INC ABC INSURANCE COMPANY AND JOHN DOE (2026)

In this survival and wrongful death action, plaintiffs, LaRicha Alfred and John Alfred (the “Alfreds”) appeal the trial court's February 11, 2025 judgment which granted summary judgment in favor of Single Source Security, LLC d/b/a Protos Security and their insurer, Acceptance Indemnity Insurance Company (collectively, “Protos”), and dismissed their claims against Protos with prejudice. For the reasons to follow, we reverse the judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 25, 2020, the Alfreds’ son, Ja'Mere Alfred, was tragically shot and killed in the parking lot of Walgreens store located at 11297 Lake Forest Boulevard in New Orleans. The Alfreds filed suit against Walgreen Louisiana Company, Inc. (“Walgreens”), alleging wrongful death and survival claims. Thereafter, on April 5, 2022, the Alfreds filed their first supplemental and amending petition, adding Protos as defendants. The Alfreds alleged that the defendants should have foreseen that the shooting would occur because the defendants had knowledge of the existence and frequency of similar instances of violent crimes on the property prior to the incident.

At the time of the incident, Protos had a service agreement (the “Agreement”) with Walgreens under which Protos arranged for security services through subcontractors. Protos, in turn, had an Independent Contractor Agreement (“Contractor Agreement”) with Elliott Security Solutions, LLC (“Elliott”), which provided a security guard at the Walgreens store. Protos filed a cross-claim against Elliott, alleging that pursuant to the Agreement, Elliott must also defend, hold harmless and indemnify Protos against any and all liability, claims, losses, damages, or arising from any breach of the Agreement.

Protos moved for summary judgment on March 27, 2023. Protos also filed a motion to file select exhibits under seal. Thereafter, the Alfreds filed a motion for leave to file its third supplemental and amended petition for damages to add claims against Protos for negligent hiring, negligent supervision and failure to provide adequate security. Additional discovery took place.

The hearing on Protos’ motion for summary judgment was held January 17, 2025. On February 11, 2025, the trial court signed a judgment granting the motion for summary judgment and dismissed plaintiffs’ claims against Protos with prejudice.

The Alfreds filed a motion for new trial, which was denied on June 2, 2025. The Alfreds subsequently moved for devolutive appeal on June 24, 2025. This appeal follows.

DISCUSSION

The Alfreds assign three errors on appeal, however, we narrow our discussion to whether the trial court erred in granting Protos’ motion for summary judgment.¹ The Alfreds argue that Protos owed a duty of care to protect Ja'Mere Alfred from foreseeable criminal activity and Protos breached its duty. The Alfreds further argue that Protos had shared custody or garde of the Walgreens store's premises and parking lot.

Standard of Review

An appellate court reviews the grant or denial of a motion for summary judgment de novo, using the same criteria as a trial court. Kazan v. Red Lion Hotels Corp., 2021-01820, p. 2 (La. 6/29/22), 346 So.3d 267, 269. La. C.C.P. art. 966(A)(3) provides that “[a]fter an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.”

The burden of proof rests with the mover to demonstrate entitlement to judgment as a matter of law, in accordance with La. C.C.P. art. 966(D)(1), which provides:

[i]f 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 granting of summary judgment is contingent upon the pleadings, depositions, answers to discovery, admissions on file and affidavits demonstrating that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law.” Majoue v. Fish, 2023-0549, p. 5 (La. App. 4 Cir. 3/8/24), 385 So.3d 321, 325. Genuine issues are ones in which reasonable factfinders could disagree. Id. “[I]f reasonable persons could only reach one conclusion, there is no need for trial on that issue, and summary judgment is appropriate.” Id. “A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute.” Id.

Applicable Negligence and Premises Liability Principles

The Alfreds alleged negligence and premises liability against Protos under La. C.C. arts. 2315, 2315.1, 2315.2, 2317, and 2317.1.² Whether a claim arises in negligence under La. C.C. art. 2315 or in premises liability under La. C.C. art. 2317.1, the traditional duty/risk analysis is the same. Farrell v. Circle K Stores, Inc., 2022-00849, p. 5 (La. 3/17/23), 359 So.3d 467, 471-72. Under the duty/risk analysis, a plaintiff must prove all of the following five elements:

1. The defendant had a duty to conform his conduct to a specific standard (the duty element);

2. The defendant's conduct failed to conform to the appropriate standard (the breach element);

3. The defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element);

4. The defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of duty element); and

5. Proof of actual damages (the damages element).

Id.3

Louisiana Civil Code Article 2317.1 establishes a duty on a “custodian of property to keep [that] property in a reasonably safe condition.” Ramirez v. Lighthouse Prop. Ins. Corp., 2021-0184, pp. 3-4 (La. App. 4 Cir. 12/15/21), 333 So.3d 1286, 1289-90. While interpreting La. C.C. art. 2317.1, this Court has expressed that to succeed under a custodial theory of recovery, the plaintiff must prove four elements by a preponderance of the evidence; specifically: 1. the thing was in the custodian's custody or control; 2. the thing had a vice or defect, which created an unreasonable risk of harm; 3. the defendant knew or should have known that the vice or defect presented an unreasonable risk of harm; and 4. the defect caused the plaintiff's damages. Haynes v. Sewerage & Water Bd. of New Orleans, 2023-0678, p. 17 (La. App. 4 Cir. 7/31/24), 399 So. 3d 626, 640 (citing Fisher v. Villere, 2020-0242, p. 9 (La. App. 4 Cir. 2/24/21), 313 So.3d 1282, 1289). A plaintiff's failure to prove even one of these factors will defeat his or her negligence claim. Ramirez, 2021-0184, p. 4, 333 So.3d at 1291.

Custody/Control

We must first consider whether Protos had custody or control of the Walgreens store premises. In determining whether custody or garde over a premise is shared, the courts look to the parties’ actions and relationships to the thing causing injury. The test for determining custody or garde is two-fold. First, we must determine whether the defendant bears such a relationship as to have the right of direction or control over the thing. Next inquiry is, what, if any, kind of benefit the defendant derives from the thing. Chesney v. Entergy La., L.L.C., 51,718, pp. 7-8 (La. App. 2 Cir. 11/15/17), 245 So.3d 281.

Because the Alfreds would bear the burden of proof at a trial on this matter, Protos, as the mover in the motion for summary judgment, had to point out the absence of factual support for one or more elements essential to the Alfreds’ claims. See La. C.C.P. art. 966(D)(1). Protos’ motion was premised on the assertion that it did not own or have custody or garde of the Walgreens store, thus it did not owe a duty to the plaintiffs.

In support of its motion for summary judgment, Protos attached its answers to interrogatories, Walgreens’ responses to interrogatories and requests for production of documents, Elliott's answers to plaintiffs’ written interrogatories, Elliott's responses to plaintiffs’ requests for production of documents, the Alfreds’ first supplemental and amended petition for damages. Protos also filed a motion to file exhibits under seal, namely, the Agreement and the Contractor Agreement, respectively identified as “Exhibit A” and “Exhibit B”.

In its answers to interrogatories, Protos provided that it does not interview or hire security guards and its clients were responsible for determining the nature and extent of security services required at each of their stores. Protos further provided that the Agreement outlines Walgreens’ requirements for parking lot security services at stores.

Walgreens provided in its answers to interrogatories that the owner of the building and parking lot was MWT New Orleans Property II, L.L.C. Walgreens also provided that individual security guards were hired by a vendor and were not employees of Walgreens. Elliott's responses to interrogatories elaborated that no contract existed between Elliott and Walgreens that addressed the parking lot security guidelines for the store.

As previously mentioned, Protos filed a motion to file exhibits under seal, noting that it planned to attach the documents as exhibits to its motion for summary judgment. However, the record reveals that “Exhibit A” and “Exhibit B” were not attached to the memorandum in support of the motion for summary judgment.

The Agreement and the Contractor Agreement were not sworn to in any manner or authenticated, therefore, they are not proper summary judgment evidence. See La. C.C.P. art. 966(A)(4). This Court has explained that introduction of document which are not included in the exclusive list in La. C.C.P. art. 966(A)(4) is not permitted unless they are properly authenticated by affidavit or the deposition to which they are attached. Haynes v. Sewerage & Water Bd. of New Orleans, 2023-0678, p. 20 (La. App. 4 Cir. 7/31/24), 399 So. 3d 626, 641 (quoting Jessie v. Wendy's Co., 2022-156, p. 7 (La. App. 5 Cir. 12/7/22), 356 So.3d 467, 472).

The parties reference the Agreement and the Contractor Agreement throughout their memorandums in support and opposition to summary judgment; however, these documents were not attached to an affidavit or deposition in the summary judgment record. Notably, the trial court's June 2, 2025 judgment and written reasons denying the Alfreds’ motion for new trial confirms that the Agreement “was not attached as an exhibit to the Defendants’ Motion for Summary Judgment or the Plaintiff's opposition”  ⁴

At this juncture, none of the supporting documents that were properly attached to Protos’ motion for summary judgment negate an essential element in the Alfreds’ claims. Further, Protos has not sufficiently pointed out the Alfreds’ absence of factual support for the custody/garde element of their claim. As a result, the burden has not shifted to the Alfreds to produce evidence of a material factual dispute.

In light of our de novo review, we find that Protos failed to satisfy its initial burden proof. Accordingly, the trial court erred in granting summary judgment in favor of Protos.

CONCLUSION

For the foregoing reasons, we reverse the trial court's February 11, 2025 judgment granting Protos’ motion for summary judgment and remand the matter for further proceedings.

REVERSED AND REMANDED

FOOTNOTES

1.   The Alfreds assignment of error are 1) the trial court erred in granting Protos’ motion for summary judgment as Protos owed a duty of care to Ja'Mere Alfred; 2) the trial court erred in granting Protos’ motion for summary judgment as Protos breached the duty of care it owed to Ja'Mere Alfred; and 3) the trial court erred in granting summary judgment despite evidence and legal precedent that Protos shared custody or garde of the Walgreens store.

2.   La. C.C. art. 2315 provides in pertinent part “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. C.C. art. 2315.1 governs survival actions.La. C.C. art. 2317 provides “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Further, La. C.C. art. 2317.1 governs negligence claims against the owner or custodian of property, and provides:The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

3.   A claim under La. C.C. art. 2317.1 requires proof that the defendant had actual or constructive notice of the defect.

4.   This Court reviews judgments, not reasons for judgment. But, an appellate court can use reasons for judgment to gain insight into the trial court's judgment. Bernstein v. Bernstein, 2019-1106, p. 13 (La. App. 4 Cir. 2/10/21), 313 So.3d 413, 423 (quoting Wooley v. Lucksinger, 2009-0571, p. 78 (La. 4/1/11), 61 So.3d 507, 572). “ ‘[R]easons for judgment are merely an explication of the trial court's determinations. They do not alter, amend, or affect the final judgment being appealed․’ ” Lombard v. Nobre, 2023-0746, p. 11 (La. App. 4 Cir. 6/18/24), 398 So.3d 1, n.5 (quoting Wooley, 2009-0571, pp. 77-78, 61 So.3d at 572).

JUDGE SANDRA CABRINA JENKINS