Opinion
NO. 2021 CA 0764
03-30-2022
Juan Bryston HERNANDEZ Individually, Juan Cruz Hernandez and Elena Nicole Hernandez as Natural Tutor and Tutrix v. LIVINGSTON PARISH SCHOOL BOARD, Frost Elementary School, Berkley Insurance Company, Tiffany Blount, Steven Spring, XYZ On-Duty Teachers and XYZ Insurance
Lee M. Schwalben, Lenzi C. Hebert, Lake Charles, LA, Attorneys for Plaintiffs-Appellants, Juan Bryston Hernandez Individually, Juan Cruz Hernandez and Elena, Nicole Hernandez as Natural Tutor and Tutrix, Mark D. Boyer, Blake F. Harris, Denham Springs, Attorneys for Defendants-Appellees, Livingston Parish School Board, Berkley Insurance Company, Tiffany Blount and Steven Spring
Lee M. Schwalben, Lenzi C. Hebert, Lake Charles, LA, Attorneys for Plaintiffs-Appellants, Juan Bryston Hernandez Individually, Juan Cruz Hernandez and Elena, Nicole Hernandez as Natural Tutor and Tutrix,
Mark D. Boyer, Blake F. Harris, Denham Springs, Attorneys for Defendants-Appellees, Livingston Parish School Board, Berkley Insurance Company, Tiffany Blount and Steven Spring
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
HESTER, J.
In this case arising out of a student's injury at school, plaintiffs appeal a summary judgment dismissing their negligence suit against defendants. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On May 10, 2017, six-year-old Juan Bryston Hernandez was playing on the playground during recess at Frost Elementary School. As Juan was attempting to climb a three step ladder attached to the slide, his left leg became stuck causing him to fall backwards onto the ground. After Juan fell, his schoolmates notified Tiffany Blount and Steven Spring, two of the teachers on recess duty. Both teachers quickly came to the area where Juan fell and observed him screaming and holding his leg. Mr. Spring picked Juan up and carried him to the school office where he applied an ice pack to Juan's leg. The office staff notified Juan's mom, Elena Hernandez, and she came to the school to pick him up. She immediately took him to Our Lady of the Lake Emergency Room in Livingston Parish where he was diagnosed with a fractured left femur. Juan was then transported by ambulance to Our Lady of the Lake Regional Medical Center, Baton Rouge where he was admitted and surgery was performed on his leg.
On April 16, 2018, Mrs. Hernandez and Juan Cruz Hernandez, as natural tutor and tutrix of Juan, filed a Petition for Damages against the Livingston Parish School Board, Frost Elementary School, Ms. Blount, Mr. Spring, and Berkley Insurance Company (collectively "the School Board") contending that the School Board was negligent in its supervision of Juan, in moving Juan after the injury, in failing to follow applicable school and state policies and procedures, and in not immediately calling an ambulance. The Hernandezes additionally asserted a claim of negligent infliction of emotional distress upon Mrs. Hernandez by Mr. Spring and Ms. Blount. The School Board answered the suit and filed a motion for summary judgment asserting that the Hernandezes cannot establish liability because they cannot prove either that the School Board was negligent in its supervision of Juan or a causal connection between the alleged lack of supervision and Juan's accident. Further, the School Board contends that there is no evidence to support the Hernandezes’ assertion that the School Board was negligent in responding to Juan's injury. The Hernandezes opposed the motion, asserting that they can meet their burden of proving all elements of their case against the School Board. Following a hearing on the School Board's motion, the trial court signed a judgment on April 16, 2021, granting the motion for summary judgment and dismissing the Hernandezes’ suit. The Hernandezes now appeal.
Although the caption and the petition refer to claims by plaintiff "Juan Bryston Hernandez individually," the trial court's judgment properly reflects that the claims being dismissed were the claims asserted by Mr. and Mrs. Hernandez, individually and as natural tutor and tutrix of the minor, Juan Bryston Hernandez.
LAW AND ANALYSIS
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. 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, 21 writ denied, 2018-1397 (La. 12/3/18), 257 So.3d 194. After 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. La. Code Civ. P. art. 966(A)(3).
The burden of proof 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. La. Code Civ. P. art. 966(D)(1).
Appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. 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, 255 So.3d at 22.
The courts have recognized that a school board owes a duty of supervision of the students in its care. In the case of Wallmuth v. Rapides Parish School Board, 2001-1779, 2001-1780 (La. 4/3/02), 813 So.2d 341, 346, the Louisiana Supreme Court held that:
[a] school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. [Citations omitted.]
As such, the School Board owed a duty of reasonable supervision over Juan, but before liability can be imposed upon the School Board there must be proof of negligence in providing supervision and, also, proof of a causal connection between the lack of supervision and the accident. Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, 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 346.
In support of its motion for summary judgment, the School Board attached the affidavits of Mr. Spring, Ms. Blount, and Ms. Stacey Wise, the principal of Frost Elementary, as well as Juan's medical records from Our Lady of the Lake Regional Medical Center, Baton Rouge.
In their affidavits, Ms. Blount, Mr. Spring, and Ms. Wise stated that the slide/ladder Juan was using on the day of the accident was on a playground designated for prekindergarten and kindergarten students only, and that they were not aware of any prior accident involving the slide/ladder used by Juan or any prior accident or incidents involving Juan. Further, they each stated that at no time after the incident did they notice any swelling, redness, or deformity of Juan's leg.
Ms. Blount stated that on the day of the accident, she was in her assigned duty position before the students arrived on the playground and was standing approximately 10 to 15 feet away from the slide/ladder where Juan was injured. She stated she did not witness the accident, but she immediately went to Juan's aid when she was notified that he fell.
Mr. Spring stated that he immediately went to Juan's aid after being notified of the incident, picked him up off of the ground and supported both of his legs with his hands and his arms. He stated he then carried Juan to the school's office where he continued to support both of Juan's legs and applied an icepack to Juan's injured leg. Mr. Spring also stated that upon Mrs. Hernandez's arrival to the school, he carried Juan to her vehicle, placed him in the vehicle, and placed a rolled-up blanket underneath his injured leg for support.
Ms. Wise stated that prior to Mr. Spring bringing Juan to the office, his mother was notified of the incident via telephone and turned down an offer for the school to notify EMS. Ms. Wise also pointed out that the bell for recess rings at 9:25 a.m. and that the Frost Elementary School's student check in/out journal showed that Juan was checked out of the school at approximately 9:40 a.m. on May 10, 2017, only fifteen minutes after recess began.
In opposition to the School Board's motion, the Hernandezes attached the Livingston Parish Public Schools Accident Report filled out on the day of the accident; a letter from the Risk Management Coordinator for the School Board; the deposition of Ms. Blount; Juan's medical records; and the affidavits of Mrs. Hernandez; Elizabeth Dickerhoof, an educator; Dr. Ronald Paynter, M.D., F.A.C.E.P., C.P.E., who practices emergency medicine in New York, and David Black, an emergency medical technician. The School Board objected to the qualifications of the experts, Ms. Dickerhoof, Dr. Paynter, and Mr. David. The trial court overruled the School Board's objections and "recognize[d] all of them as experts."
The accident report and letter from risk management are not in the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment. See La. Code Civ. P. art. 966(A)(4). However, the documents were not objected to. Thus, under La. Code Civ. P. art. 966(D)(2), the court "shall consider any documents to which no objection is made" to determine if any evidentiary value should be given to the documents. Jones v. Louisiana Medical Center and Heart Hospital, LLC, 2020-0551 (La. App. 1st Cir. 12/30/20), 2020 WL 7770927 *1, n.1 (unpublished). Therefore, we must consider the non-objected to documents, and decide de novo, whether we should give them any evidentiary value. See Pottinger v. Price, 2019-0183 (La. App. 1st Cir. 10/23/19), 289 So.3d 1047, 1053.
The letter from risk management as well as the accident report contain inadmissible hearsay, are not attached to any affidavit or deposition, and the contents of the documents are disputed by the parties. In these circumstances, the letter and the accident report have no evidentiary value and do not create a genuine issue of material fact. See Pottinger , 289 So.3d at 1053-1054.
In support of their negligent supervision cause of action, the Hernandezes rely on the expert opinion of Ms. Dickerhoof, "an experienced child educator." Ms. Dickerhoof pertinently attests that "the teacher has to be within sight and/or sound of the children at all times" and concludes that the School Board negligently supervised Juan. She further states,
In my expert opinion it is foreseeable that a 6 year old would slip on a ladder. It is also foreseeable that if a six year old slipped, he/she would suffer an injury. In my expert opinion, if a teacher was close enough to the student slipping on the ladder, injury could be prevented.
Contrary to this opinion, the trial court concluded that the risk of injury was not foreseeable or preventable and that the teachers were "doing what they were supposed to do when they were supposed to be doing it." It is clear that, although the trial court concluded Ms. Dickerhoof was qualified to testify as an expert, it properly, and within its discretion, rejected Ms. Dickerhoof's legal conclusions regarding the duty owed by the School Board. See Juneau v. Louisiana Tennis Association, Inc., 2019-0964 (La. App. 1st Cir. 2/27/20), 300 So.3d 12, 17 (whether a duty is owed is a question of law). As noted, the Louisiana Supreme Court has held that a school board, through its agents and teachers, owes a duty of reasonable supervision over students. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Wallmuth, 813 So.2d at 346. Not only did Ms. Dickerhoof offer improper legal conclusions, but her opinion that "the teacher has to be within sight and/or sound of the children at all times" to discharge her duty is contrary to Louisiana law. Ms. Dickerhoof's conclusion that the injury was foreseeable and preventable had a teacher been standing "close enough" to Juan is likewise unsupported speculation, insufficient to create a genuine issue of material fact. As the School Board points out, there is no evidence to establish reaction times or calculations of speed and distance.
Additionally, Ms. Dickerhoof attested that the ratio of students to teachers on the day of the accident was in violation of Louisiana Administrative Code, Title 28, Education, Chapter 17 § 1711. The section of the Administrative Code Ms. Dickerhoof contends the School Board violated pertains to Louisiana Early Learning Centers rather than elementary schools.
Accordingly, we find no error in the trial court reaching conclusions contrary to Ms. Dickerhoof's legal opinions and unsupported factual conclusions, which are insufficient to create a genuine issue of material fact. To defeat a motion for summary judgment, an expert's opinion must be more than a conclusory assertion about ultimate legal issues. Mitchell v. Aaron's Rentals, 2016-0619 (La. App. 1st Cir. 4/12/17), 218 So.3d 167, 177. Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Bradley v. Wal-Mart Louisiana, LLC, 2021-0693 (La. App. 1st Cir. 12/22/21), ––– So.3d ––––, ––––, 2021 WL 6064829, *5 (unpublished); Mariakis v. North Oaks Health System, 2018-0165 (La. App. 1st Cir. 9/21/18), 258 So.3d 88, 95–96.
The summary judgment evidence regarding negligent supervision reveals that Juan's unfortunate accident was neither foreseeable nor preventable absent constant supervision, which the law does not require for educators to discharge their duty to provide adequate supervision. Ms. Blount attested in her affidavit that she was 10 to 15 feet from the slide when Juan fell, and in her deposition stated that when she ran to him he was "just a few little steps" from her. The teachers and principal attested that they were not aware of any prior incidents involving the slide/ladder where Juan fell or any prior incidents involving Juan. The Hernandezes failed to produce factual support for their claim of negligent supervision sufficient to establish the existence of a genuine issue of material fact.
Next, the Hernandezes rely on the affidavit of Dr. Paynter and Mr. Black, to support their assertion that the School Board's actions following Juan's fall exacerbated his injuries. On this issue, the trial court concluded that, by putting ice on Juan's leg, the teachers did what every responsible teacher would do stating, "So I think that the teachers acted appropriately." Again, it appears the trial court rejected the speculative and unsupported expert opinions offered by the Hernandezes to support this claim. Specifically, Dr. Paynter opines that the School Board's negligence in moving Juan, rather than leaving him on the ground until emergency medical technicians arrived, was
a substantial factor in worsening and further displacing a femoral fracture. This in turn required a more extensive repair, delayed healing, and caused great pain and suffering and required more therapy. It also led to residual pain and difficulty ambulating. There is also the probability of further surgery to remove the hardware.
Dr. Paynter's affidavit contains no factual support for this speculative conclusion. He does not point to any medical record that establishes this fact or supports his opinion nor does he explain how or why he reached this conclusion. There is no discussion of the condition of Juan's injury before he was moved. See Bradley, ––– So.3d at ––––, 2021 WL 6064829 at *1, wherein the plaintiff was injured after allegedly tripping on an unsecure floor mat. In opposition to the defendants’ motion for summary judgment, the plaintiff's expert opined, via affidavit, that the unsecure mat created a hazardous condition. However, the expert could not show the condition or placement of the mat prior to the plaintiff's fall. His conclusory opinions concerning the potential hazards an unsecure floor mat may pose, which were unsupported by any showing of the underlying facts, failed to create a genuine issue of material fact. Bradley, ––– So.3d at ––––, 2021 WL 6064829 at *5.
Similarly, Mr. Black attests that the School Board's negligent failure to call an ambulance "delayed [Juan's] treatment and kept him in pain for a longer period of time." This is entirely conjecture. There is no evidence to establish how quickly an ambulance would or could have arrived at the school to transport Juan or to demonstrate the likelihood that Juan would have arrived at the hospital any faster if taken by ambulance rather by his mother. The evidence establishes that Juan fell at approximately 9:25 am and was admitted to Our Lady of the Lake Regional Medical Center by 10:15 am. Affidavits that are conclusory with no supporting underlying facts are legally insufficient to defeat a motion for summary judgment. Bradley, ––– So.3d at ––––, 2021 WL 6064829 at *5. Expert opinion that an event "could have" occurred or caused damage does not create a genuine issue of material fact. An expert's speculation that a material fact possibly exists or may have occurred is not sufficient to create a genuine issue precluding summary judgment. Florida Gas Transmission Co., LLC v. Texas Brine Co., LLC, 2018-0218 (La. App. 1st Cir. 1/11/19), 272 So.3d 547, 550, writ denied, 2019-00510 (La. 9/24/19), 279 So.3d 385, and writ denied, 2021-00793 (La. 6/29/21), 319 So.3d 301.
Furthermore, in response to the School Board's showing, the Hernandezes’ experts offered no evidence or authority to establish that a teacher is held to the same standard of care in responding to a student's injuries as a health care provider or EMT. The Hernandezes’ experts failed to cite the source of the purported applicable standard of care, which Dr. Paynter maintains applies to "any adult or health care provider" and Mr. Black opines applies to "an EMT, teacher, or any responsible adult when encountering a physically traumatized child." An expert's affidavit that is speculative, conclusory, and devoid of any underlying and supporting facts regarding a standard of care that was allegedly breached, actions or inactions on the part of the defendants that were in breach of any such standard of care, or how any such breach caused any alleged injury to plaintiff is "woefully insufficient" to defeat summary judgment. Simon v. Allen Oaks, LLC , 2020-5 (La. App. 3rd Cir. 6/10/20), 298 So.3d 881, 887. Accordingly, we find the expert affidavits of Dr. Paynter and Mr. Black submitted herein by the Hernandezes fail to create a material issue of fact.
As noted, the evidence set forth by the School Board established that Mr. Spring, Ms. Blount, and Ms. Wise all stated that they did not observe any swelling, redness, or deformity of Juan's leg. Mr. Spring carefully carried Juan to the office and placed ice on his leg. The school immediately called his mother, and his mother checked him out of the school within fifteen minutes of the injury. The evidence revealed that the School Board's response to Juan's injury was prompt and entirely appropriate and certainly did not rise to the level of negligence. Since the Hernandezes did not produce factual support sufficient to establish the existence of a genuine issue of material fact regarding the School's response to Juan's injury, the School Board is entitled to summary judgment as a matter of law. CONCLUSION
Through its motion for summary judgment, the School Board sought dismissal of the Hernandezes’ claims either in whole or in part. The judgment on appeal dismissed all of the Hernandezes’ claims, with prejudice. In their petition, Ms. Hernandez asserted a claim for intentional infliction of emotional distress against Ms. Blount and Mr. Spring. While a claim for negligent infliction of emotional distress unaccompanied by physical injury is viable under La. C.C. art. 2315 requiring application of the duty-risk analysis, Barrino v. East Baton Rouge Parish School Board, 96-1824 (La. App. 1st Cir. 6/20/97), 697 So.2d 27, 33, the defendant's conduct must be outrageous or such that he knew or should have known his conduct would cause genuine and severe mental distress as judged in light of the effect such conduct would have on a person of ordinary sensibilities. Holmes v. Lea, 2017-1268 (La. App. 1 Cir. 5/18/18), 250 So.3d 1004, 1014-15. Moreover, this recovery has been limited to cases involving the "especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious." Barrino v. East Baton Rouge Parish School Board, 697 So.2d at 34. Considering our finding herein that the Hernandezes failed to sufficiently rebut the School Board's showing that the teachers acted reasonably in their supervision of the students and in assessing Juan after the accident, we likewise find that summary judgment was properly granted as to the Hernandezes’ claim of negligent infliction of emotional distress.
For the foregoing reasons, we affirm the April 16, 2021 judgment of the trial court granting summary judgment in favor of defendant-appellees, Livingston Parish School Board, Frost Elementary School, Tiffany Blount, Steven Spring, and Berkley Insurance Company. All costs of this proceeding are assessed to plaintiff-appellants, Elena Hernandez and Juan Cruz Hernandez individually and as natural tutor and tutrix of Juan Bryston Hernandez.