Manders v. Singleton

• Decision Date: 14 March 1990
• Docket Number: No. 89-CA-662,89-CA-662
• Parties: 59 Ed. Law Rep. 574 Susan H. Neathamer, Wife of/and James D. MANDERS v. Nicole SINGLETON, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 772

558 So.2d 772

59 Ed. Law Rep. 574

Susan H. Neathamer, Wife of/and James D. MANDERS v. Nicole SINGLETON, et al.

No. 89-CA-662.

Court of Appeal of Louisiana Fifth Circuit.

March 14, 1990.

Douglas L. Uzee, Jr., Marrero, for Susan H. Neathamer, wife of/and James D. Manders, plaintiffs-appellants.

Margot A. Tillman-Fleet, Deputy Gen. Counsel, Louisiana Dept. of Educ., Baton Rouge, for Louisiana Dept. of Educ., defendant-appellee.

Before CHEHARDY, C.J., and BOWES and GAUDIN, JJ.

CHEHARDY, Chief Judge.

Plaintiffs appeal from the summary judgment dismissal of the Louisiana Department of Education as a tort defendant in this suit. We reverse.

Plaintiff, Susan H. Neathamer, was employed as a physical education teacher at Livaudais Junior High School in Jefferson Parish, Louisiana. On February 25, 1987 during her second period physical education class she injured her back while attempting to break up a fight between two female students.

Neathamer and her husband, James D. Manders, sued the students and their parents, claiming that during the fight, Nicole Singleton accidentally or intentionally fell against Neathamer and knocked her down.

Plaintiffs sued the Jefferson Parish School Board and the Louisiana Department of Education, "Department". They contended that when the fight broke out there were 63 students in Neathamer's class, despite the Louisiana Handbook for School Administrators dictate that the maximum size for health and physical education classes in grades K through 8 shall be 40 students. Plaintiffs claimed that the large size of the class directly contributed to the fight and Neathamer's injury.

At its motion for summary judgment, the Department argued that it had fulfilled the duty owed to Neathamer with respect to maximum class size. Mover introduced annual school reports to show that excess class size, identified in 1985, had been reduced as of September, 1986. In opposition to the motion plaintiffs argued that the Department had granted the School Board a waiver, which effectively permitted additional class enrollment.

The district judge found in favor of the Department, reasoning that plaintiffs had not produced evidence in the form of a counter-affidavit to verify their allegations of excess class size. On appeal, plaintiffs argue that where the record contains no affidavit by mover, they are not obliged to file a counter affidavit. They reurge the contention that certain material issues of fact preclude the grant of summary judgment. We agree.

The well-settled rule is that a motion for summary judgment is granted if, and only if, the pleadings, depositions, answers to interrogatories, 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. LSA-C.C.P. art. 966; Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981). Mover must show clearly that there are no disputed issues of fact; any reasonable doubt as to their existence is resolved against mover and in favor of trial on the merits. Indus. Sand and Abrasives v. L. & N.R. Co., 427 So.2d 1152 (La.1983). A fact is material if its existence or non-existence may be essential to a plaintiff's cause of action under the applicable theory of recovery. Material facts are those which potentially insure or preclude recovery, affect a litigant's ultimate success or determine the outcome of the legal dispute. Penalber v. Blount, 550 So.2d 577 (La.1989).

The court must test the efficacy of the motion for summary judgment by closely scrutinizing the mover's pleadings, while treating those of the opposing party indulgently. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). Summary procedure must be used cautiously and sparingly. Judgment can be granted only when reasonable minds must inevitably conclude that mover is legally entitled to judgment on the facts before the court. Lucey v. Harris, 490 So.2d 416 (La.App. 5 Cir.1986).

The district court's grant of summary judgment was based on plaintiffs' failure to adequately rebut the Department's proof. With all due respect, we believe that the district judge's decision was based on assumptions rather than uncontested facts and that he misapplied the statutorily imposed burden of proof on the motion.

LSA-C.C.P. art. 967 provides in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

The party opposing the motion for summary...