961824 La.App. 1 Cir. 6/20/97, Barrino v. East Baton Rouge Parish School Bd.

• Decision Date: 20 June 1997
• Citation: 697 So.2d 27
• Parties: Cir
• Court: Court of Appeal of Louisiana — District of US

Page 27

697 So.2d 27

961824 La.App. 1 Cir. 6/20/97, 119 Ed. Law Rep. 1280

Amber BARRINO v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al.

No. 96 CA 1824.

Court of Appeal of Louisiana First Circuit.

June 20, 1997.

Sybil LeDuff Fullard, Paulette P. Labostrie, Baton Rouge, for plaintiff/appellant, Amber Barrino.

L. Lane Roy, Lafayette, for defendants/appellees, East Baton Rouge Parish School Board, et al.

Before WHIPPLE and FITZSIMMONS, JJ., and TYSON, J. Pro Tem. ¹

[961824 La.App. 1 Cir. 2] WHIPPLE, Judge.

This appeal arises out of the trial court's grant of summary judgment in favor of defendants, East Baton Rouge Parish School Board, Shelton Watts, Richard Morgan and Cindy Harmon, in a tort suit filed by Amber Barrino ("Barrino").

FACTUAL AND PROCEDURAL HISTORY

The following facts are undisputed. The school year at Belaire High School was divided into six six-week periods, with the fourth through sixth six-week periods comprising the spring semester. Students received progress reports at the end of each six-week period. Additionally, the grades a student received on assignments and tests given during the fourth through sixth six-week periods were cumulated into a final grade for the spring semester.

In the spring of 1993, Barrino was a senior at Belaire High School. As a result of personal medical problems, Barrino missed 38 classes in her American History course and 28 classes in her Algebra II course during the spring semester. ²

Prior to May 1993, Barrino received progress reports after both the fourth and fifth six-week periods, indicating she was failing both history and algebra. On May 6, 1993, Barrino and her mother met with Richard Morgan ("Morgan"), her history teacher, regarding the makeup of missed assignments and tests. However, Barrino had not missed any tests or assignments during the sixth six-week period. Thus, the meeting pertained [961824 La.App. 1 Cir. 3] to the makeup of tests and assignments administered during the fourth and fifth six-week periods. Because the makeup work was overdue and the final exam in history was scheduled for the next day, Morgan refused to allow Barrino to makeup the missed work. ³ After the final exam, Morgan gave Barrino a handwritten note setting forth how Barrino's final grade was calculated. It concluded with a statement of the number of points Barrino would have "needed" to earn a passing grade. Nothing in this note indicates that Barrino's grade was not final or that she could still turn in work in an effort to diminish the 191 point deficit. In a subsequent meeting with Barrino's mother and other school officials held on May 13, 1993, Morgan refused a tender by Barrino's mother of makeup work prepared by Barrino, allegedly in response to the note stating she "needed" 191 points to pass history.

Also, at some point during the semester, Barrino was told by Cindy Harmon ("Harmon"), her algebra teacher, that Harmon "had never failed a senior, and did not plan to do so now." Barrino believed that this statement was an assurance that she had passed algebra; and accordingly, Barrino contends she was shocked to learn from Shelton Watts ("Watts"), the principal of Belaire, on May 28, 1993, that she would not be graduating [961824 La.App. 1 Cir. 4] with her classmates because she had failed both history and algebra. However, in her deposition, Barrino admitted that Harmon had never expressly assured Barrino that she would pass algebra, and that she had an "F" in the class before she completed a substantial project in the sixth six-week period.

As a result of this conduct of defendants, Barrino contends that she suffered severe emotional distress. ⁴

Barrino filed suit against defendants on May 31, 1994, alleging that they intentionally, and in the alternative, negligently, inflicted emotional distress upon her. After conducting discovery, defendants moved for summary judgment relying upon the affidavits of both Harmon and Morgan, the Pupil Progression Plan for the East Baton Rouge Parish School System, the East Baton Rouge Parish School Board Policy Manual, the Student Rights and Responsibilities Handbook and the Discipline Policy for 1993-1995, correspondence between Shelton Watts and the supervisor of Child Welfare and Attendance and excerpts from Barrino's deposition. Barrino opposed the motion contending that defendants' attitude toward Barrino [961824 La.App. 1 Cir. 5] breached a duty owed to Barrino to teach her and accomplish the purpose of education. Particularly, she contended that whether the defendants' conduct constituted an intentional or negligent infliction of emotional distress upon Barrino was not properly resolved on summary judgment. Barrino did not submit any evidence with her opposition. After a hearing, the trial court granted summary judgment in favor of defendants and dismissed Barrino's suit with prejudice.

This appeal followed in which Barrino asserts two assignments of error. First, Barrino contends the trial court erred in granting the summary judgment because intent was at issue. Second, Barrino contends the trial court erred in failing to consider all the appropriate remedies applicable to this case, i.e., the trial court did not address Barrino's alternate claim of negligent infliction of emotional distress.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991); McKey v. General Motors Corporation, 96-0755, p. 3 (La.App. 1st Cir. 2/14/97); 691 So.2d 164, 167.

Louisiana Code of Civil Procedure article 966(B) provides that a motion for summary judgment "shall be rendered forthwith 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 mover is entitled to judgment as a matter of law."

[961824 La.App. 1 Cir. 6] Prior to 1996 La. Acts, First Extraordinary Session, No. 9, which amended LSA-C.C.P. art. 966, summary judgments were not favored, and all doubt concerning a dispute as to a material issue of fact was resolved against granting the motion for summary judgment and in favor of a trial on the merits. However, LSA-C.C.P. art. 966(A)(2), as amended, now provides in part, "[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends." As this legislation is procedural in nature, it must be applied retroactively, as well as prospectively. McKey, 96-0755 at p. 3; 691 So.2d at 167; NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555, p. 3 (La.App. 2nd Cir. 8/21/96); 679 So.2d 477, 479; Short v. Giffin, 96-0361, pp. 5-6 (La.App. 4th Cir. 8/21/96); 682 So.2d 249, 253, writ denied, 96-3063 (La.3/7/97); 689 So.2d 1372. See also LSA-C.C. art. 6. Nevertheless, the amendments to LSA-C.C.P. art. 966 do not effect a change in the burden of proof, as specified in Paragraph (G): "Notwithstanding any other provision of this Article to the contrary, the burden of proof shall remain with the mover." McKey, 96-0755 at pp. 3-4; 691 So.2d at 167. Therefore, prior jurisprudence on the issue of a mover's burden of proof on a motion for summary judgment is still controlling. McKey, 96-0755 at p. 4; 691 So.2d at 167. This burden, and the court's role in determining whether the burden has been met, have been expressed as follows:

The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. The initial determination, on motion for summary [961824 La.App. 1 Cir. 7] judgment, is whether the supporting documents presented by the moving party are sufficient to resolve all material issues of fact; if they are not sufficient, summary judgment shall be denied. To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact.... Since the moving party bears the burden of proving the lack of a material issue of fact, where the court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. It is only if the court determines that the moving party has met this onerous burden that the burden of proof shifts to the opposing party to present evidence that a material fact is still at issue; only at this point may the adverse party no longer rest on the allegations contained in his or her pleadings.

The court should not seek to determine whether it is likely that the mover will prevail on the merits, but rather whether there is an issue of material fact. A fact is material if essential to plaintiff's cause of action under the applicable theory of recovery and without which plaintiff could not recover. Consequently, we must look to the applicable substantive law to determine whether a particular fact in dispute is material.

McKey, 96-0755 at pp. 4-5; 691 So.2d at 167-168 (citations omitted).

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In her petition, Barrino asserts that through their actions, defendants intentionally inflicted emotional distress upon her. In Louisiana, a cause of action for intentional infliction of emotional distress is viable. White v. Monsanto, 585 So.2d 1205 (La.1991). To recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the...