98-182 La.App. 3 Cir. 12/23/98, Jackson v. Colvin
| Decision Date | 23 December 1998 |
| Citation | 732 So.2d 530 |
| Parties | 98-182 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Mark Anthony Delphin, Lake Charles, Eulis Simien, Jr., Baton Rouge, for Marvin Jackson, Indiv., etc.
Gregory W. Belfour, Lake Charles, for Calcasieu Parish School Board.
Frederick Douglas Gatz, Jr., Timothy W. Basden, Lafayette, for National Union Fire Ins. Co.
Before DOUCET, Chief Judge, YELVERTON, THIBODEAUX, SAUNDERS and SULLIVAN, Judges.
[98-182 La.App. 3 Cir. 1] YELVERTON, J.
This case comes to us on appeal from the trial court's grant of summary judgment in favor of Calcasieu Parish School Board and its insurer, National Union Fire Insurance Company of Louisiana. The court decided that the school board did not have an off-campus duty to protect a nine-year-old child who was hit by a car while crossing an unguarded intersection on her way home from school following an after-school extracurricular activity. We affirm.
[98-182 La.App. 3 Cir. 2] On November 1, 1995, Santana Brown, a fourth-grade student at T.H. Watkins Elementary School in Lake Charles, was struck by a vehicle driven by Jack Colvin while she was attempting to cross Highway 14, a four-lane busy highway, in order to get to her home. Santana had stayed after school to practice with the Tigerette Drill Team, an after-school activity under the direction of Carmen Williams, a teacher. The regular school day ended at 2:40 p.m. The child left the school around 3:40 p.m., following the drill team's practice, to walk home, and the accident occurred an estimated ten minutes later. Santana sustained serious injuries as a result of this accident.
The suit was brought by Marvin Jackson, as Tutor, on behalf of Santana, against three defendants: Jack Colvin, the Calcasieu Parish School Board, and the school board's insurer, National Union Fire Insurance Company. Jack Colvin, the driver of the car that hit Santana, was dismissed. Jackson alleged that the school board was negligent in its supervision of students following after-school activities and in releasing students from these activities to walk home alone after the school crossing guards at Highway 14 had left their posts.
The following summary judgment evidence was presented. Barbara George, who handled the school crossing guard program for the Calcasieu Parish Sheriff's Department, testified that the sheriff provided guards but the school boards were in charge of choosing the locations where crossing guards would be stationed. The school crossing guard and the principal of each school then determined the regular hours that the guard would be on duty. This Highway 14 crossing was a place designated for guards. However, Ms. George testified that there were no guards on [98-182 La.App. 3 Cir. 3] duty beyond 3:30 p.m. No one had ever requested that the guards stay later than the prescribed times. There were no crossing guards present when this accident took place.
Loretta Brown, Santana's grandmother, with whom the child was living at the time of the accident, gave a deposition. Ms. Brown believed she was Santana's adoptive mother. She was surely her guardian. Ms. Brown could not drive, and she testified that she told Santana to walk home that day. The usual way Santana got to and from school was walking whether it was a practice day or not. Highway 14 was between her house and the school. Ms. Brown never met Santana at Highway 14 nor did she send anybody to meet her near this area. She never relied on the presence of a crossing guard as she admitted that she "didn't know" whether a crossing guard was present at the Highway 14 intersection after practice. Santana usually walked with a group which other evidence revealed consisted of five or six students.
Ms. Brown allowed Santana to participate in the Tigerette's drill practice which required the child to stay after school three days a week. Ms. Brown remembered that, on the day of the accident, it had rained, and Santana called her at home, following practice, and asked her if anyone was available to pick her up. Her testimony was as follows:
[98-182 La.App. 3 Cir. 4] A: I told her to come on and be careful.
There is no dispute that Ms. Brown told the child to walk home that day.
Carmen Williams was the sponsor and teacher in charge of the Tigerette's drill team. Her deposition confirmed that Santana called her grandmother after practice to see if a ride home was available and that Santana told Ms. Williams she was to walk home. The testimony of Ms. Williams and Ms. Brown differs only with respect to whether a second phone call was made. Ms. Williams testified that she had Santana call her grandmother again so Ms. Williams could speak personally with Ms. Brown and confirm that Ms. Brown wanted Santana to walk home. According to Ms. Williams, Ms. Brown assured Ms. Williams that she wanted Santana to walk home. Ms. Brown, on the other hand, could not recall a second conversation taking place. In reply to the question of whether she spoke with Ms. Williams on the phone that day, Ms. Brown stated, "I can't remember talking to her." Ms. Brown, however, stated that she authorized and directed Santana to walk home. Ms. Williams further testified that, during the phone conversation with Ms. Brown, she informed her that the other children who were walking home had already left. Those who crossed Highway 14 usually stayed together. In her conversation with Santana, Ms. Brown did not inquire whether Santana would be walking in a group or alone and did not make that factor a condition of her departure from the school. She did instruct Santana to be careful.
[98-182 La.App. 3 Cir. 5] Ms. Williams and the school had guidelines in effect for the children's safety. A permission slip, which Ms. Brown was "sure she signed," was sent home to the parents informing them of the practice times and the importance of picking up their children on time. There was an established rule that if a parent failed to pick up his or her child on time more than three times, the child would be dropped from the team. Ms. Brown signed the permission slip. In compliance with these practices, Ms. Williams was responsible for supervising the children after school until they left the school premises.
We are faced with the question of whether the school board had a duty of supervision over Santana Brown after she left the campus to walk home. Stated another way, does the school board owe a duty to insure the safety of a child who walks home from school?
LAW & DISCUSSION
We review summary judgments de novo. Jones v. Doe, 95-1298 (La.App. 3 Cir. 4/24/96); 673 So.2d 1163. Where there are no genuine issues of material fact in dispute, and the mover is entitled to judgment as a matter of law, a motion for summary judgment should be granted. La.Code Civ.P. art. 966(C). The summary judgment law has been amended to overrule cases inconsistent with Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96); 685 So.2d 691, writ denied, 97-0281 (La.3/14/97); 690 So.2d 41. Phillips Petroleum v. Liberty Services, 97-758 (La.App. 3 Cir. 12/10/97); 704 So.2d 890. In Hayes we stated that once the movant has presented a prima facie case for granting the motion for summary judgment, the burden shifts to the non-mover [98-182 La.App. 3 Cir. 6] to present evidence demonstrating that material fact issues remain. The new amendment to the summary judgment law increases the burden upon the non-moving party to establish an essential element of his claim for which he will bear the burden of proof at trial. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98-0050 (La.3/13/98); 712 So.2d 882. Summary judgment must be rendered forthwith if the summary judgment evidence shows that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Article 966(B).
In the present case there is but one disputed fact. It is whether Ms. Williams called Ms. Brown back to confirm that she had instructed her child to walk home. Whether this second phone call was made is not a material fact issue as Ms. Brown stated several times that she talked to her granddaughter and instructed her to walk home. Therefore, the material facts are not disputed. What is before us is a question of law.
Duty is an element of the duty-risk analysis. Whether a duty is owed is a question of law. Blackwell v. St. Romain Oil Co., 94-917 (La.App. 3 Cir. 3/1/95); 651 So.2d 441. The duty of a school board to supervise children during school hours has been articulated many times. In Gary v. Meche, 626 So.2d 901 (La.App. 3 Cir.1993), this circuit agreed with Comeaux v. Commercial Union Insurance Company, 269 So.2d 500, 502 (La.App. 4 Cir.1972) that the duty owed is "[r]easonable competent supervision commensurate with the age of the child and the attendant circumstances...." School boards are not the insurers of the lives or safety of children. Prier v. Horace Mann Ins. Co., 351 So.2d 265 (La.App. 3 Cir.), writs [98-182 La.App. 3 Cir. 7] denied, 352 So.2d 1042, 1045 (La.1977). The liability of the school board and its employees for injuries to students exists only when the school board has actual custody of the students entrusted to their care. Cavalier, et al. v. Gary Brent Ward, et al., 97-1927 (La.App. 1 Cir. 9/25/98); 723 So.2d 480. The duty of reasonable supervision is generally always present when a child is on campus during regular school hours, the standard being care commensurate with the age of the children...
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