STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2024 CA 0264
VERSUS
ENGLAND, L. P., TAMMY HOTARD, WINDSOR PLACE, ABC INSURANCE COMPANY AND EFG INSURANCE COMPANY
Judgment Rendered: SEP 2 6 2024
On Appeal from the Eighteenth Judicial District Court In and for the Parish of Iberville State of Louisiana Docket No. 81470
Honorable Alvin Batiste, Jr., Judge Presiding
Larry M. Aisola, Jr. Counsel for Plaintiff/Appellant Chalmette, Louisiana Brandon Brown
Brad J. Brumfield Counsel for Defendant/ Appellee Baton Rouge, Louisiana Tammy Hotard
BEFORE: McCLENDON, WELCH,, AND LANIER., 33. McCLENDON, J.
Plaintiff appeals the trial court's judgment denying plaintiff's motion to continue,
granting summary judgment in favor of defendant, and dismissing plaintiffs claims
against defendant. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The following facts are undisputed. On June 26, 2021, Brandon Brown, plaintiff-
appellant herein, was a guest in his mother' s apartment at the Windsor Place apartment
complex located in St. Gabriel, Louisiana. Mr. Brown' s stepson, 3yvariel Harvey, knocked
on the door. Mr. Brown greeted and hugged Mr. Harvey. When Mr. Brown turned,
anticipating that Mr. Harvey would follow him inside, Mr. Harvey unexpectedly shot Mr.
On April 1, 2022, Mr. Brown filed a petition seeking damages for the injuries he
sustained in the shooting. The petition named as defendants Windsor Place; England
Partner, L. P., in its capacity as the owner of Windsor Place; and Tammy Hotard,
defendant -appellee herein, in her capacity as the "On Site Property Manager" of Windsor
Place. Mr. Brown' s petition generally alleged fault on the part of the three defendants,
such as failing to provide a safe environment, failing to provide warnings about unsafe
conditions, and failing to have sufficient security measures. However, Mr. Brown' s
petition did not allege specific acts of negligence on the part of the three defendants.
Ms. Hotard answered the petition, generally denying Mr. Brown' s allegations, and
propounded interrogatories, requests for production of documents, and requests for
admissions to Mr. Brown. Relevant to the issues on appeal, in response to an
interrogatory requesting that Mr. Brown " list, with specificity, all the facts that [ he would]
rely upon to establish [ his] claims" that Ms. Hotard was at fault " in causing [ him] to be
shot[,]" Mr. Brown' s verified responses, dated September 16, 2022, provided: " Tammy
Hotard was the general manager of the apartment and was responsible for the gate
working properly. As such, Tammy Hotard is responsible for allowing Jyvariel Harvey to
walk into ( sic) without having to check in." After Mr. Brown responded to Ms. Hotard' s
I It appears that Ms. Hotard is the only defendant who answered the petition and is the only party defendant to the summary judgment before us on appeal.
0) discovery requests, additional discovery included the January 17, 2023 deposition of
plaintiff-appellant, Brandon Brown; the January 17, 2023 deposition of Sandra Brown,
Mr. Brown' s mother; and the February 2, 2023 deposition of David " 03" Johnson, a police
officer and resident of Windsor Place who served as the Windsor Place Courtesy Officer.
On July 19, 2023, Ms. Hotard filed a motion seeking summary judgment and the
dismissal of Mr. Brown' s claims against her, arguing that Mr. Brown would be unable to
prove she was at fault because she neither owed nor breached a duty to Mr. Brown under
the specific circumstances of his shooting. Ms. Hotard argued that, as the apartment
manager, she did not owe a special duty to control or warn Mr. Brown against the criminal
actions of a third person. Ms. Hotard further argued that, to the extent Mr. Brown may
argue Windsor Place was a business establishment that owed a duty to guard its patrons
against criminal acts, Windsor Place as a business establishment would not have owed a
duty to guard Mr. Brown against an unforeseeable shooting. In support of her summary
judgment motion, Ms. Hotard offered Mr. Brown' s discovery responses and the deposition
testimony given by Mr. Brown, Ms. Brown, and Officer Johnson.
In opposition to Ms. Hotard' s summary judgment motion, Mr. Brown filed a motion
to continue the summary judgment hearing. Mr. Brown argued that although he sent a
subpoena to the St. Gabriel Police Department on April 5, 2023, and the subpoena was
served on April 24, 2023, he had not received a response. Mr. Brown maintained that his
ability to oppose Ms. Hotard' s summary judgment motion was " hampered" without the
sought-after discovery. Thus, he requested that the trial court continue the hearing
without date, or until Mr. Brown could obtain written discovery responses and deposition
testimony from the St. Gabriel Police Department.
In response to Mr. Brown' s motion to continue, Ms. Hotard filed a reply
memorandum in support of her summary judgment motion. Ms. Hotard argued that
although Mr. Brown contended he sent a subpoena to the St. Gabriel Police Department,
Mr. Brown had not shown that he had taken action with the court to enforce the
subpoena. Further, Ms. Hotard maintained that even if Mr. Brown obtained the requested
records, and the records established a pattern of crime at Windsor Place, Ms. Hotard was
3 not liable to Mr. Brown in this matter, where Mr. Brown himself did not anticipate this
crime.
The trial court heard Ms. Hotard' s motion for summary judgment and Mr. Brown' s
motion to continue on September 28, 2023. The trial court denied Mr. Brown' s motion to
continue, stating, " I don't think any amount of additional discovery from the Saint Gabriel
Police Department would in any way help you to survive the motion for summary
judgment in this case." The trial court then granted Ms. Hotard' s summary judgment
motion! finding " that defendant, Tammy Hotard, owed no duty to plaintiff, Brandon
Brown." The trial court signed a written judgment in conformity with its rulings on October
12, 2023, and dismissed all of Mr. Brown' s claims against Ms. Hotard, with prejudice. Mr.
LAW AND DISCUSSION
A ruling on a motion for summary judgment is reviewed under a de novo standard,
with the appellate court using the same criteria that govern the trial court's determination
of whether summary judgment is appropriate, i.e., whether there is any genuine issue of
material fact, and whether the movant is entitled to judgment as a matter of law.
Corbajal v. Chris Owens French Quarter Parade, LLC, 2024- 00191 ( La. 5/ 21/ 24),
385 So. 3d 236, 237- 38. Pursuant to LSA- C. C. P. art. 966( D)( 1), the burden on the party
moving for summary judgment "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." Corbajal, 385 So. 3d at 238. When a motion for summary
judgment is made and supported, an adverse party may not rest on the mere allegations
or denials of his pleadings, but his response, by affidavits or otherwise, must set forth
specific facts showing that there is a genuine issue for trial. LSA- C. C. P. art. 967( B);
Corbajal, 385 So. 3d at 238. Once a motion for summary judgment has been properly
supported by the moving party, the failure of the non- moving party to produce evidence
of a material factual dispute mandates the granting of the motion. Id.
Because it is the applicable substantive law that determines materiality, whether
a particular fact in dispute is material can only be seen in light of the substantive law
ki applicable to the case. Pumphrey v. Harris, 2012- 0405 ( La. App. 1 Cir. 11/ 2/ 12), 111
So. 3d 86, 89. The threshold issue in any negligence action is whether the defendant owed
the plaintiff a duty. Evans v. Abubaker.. Inc., 2023- 00955 ( La. 5/ 10/ 24), 384 So. 3d
853, 858. Whether a duty is owed by one party to another is a question of law which
depends upon the facts and circumstances of the case and the relationship of the parties. 2
Terrell v. Wallace, 98- 2595 ( La. App. 1 Cir. 12/ 28/ 99), 747 So. 2d 748, 750, writ denied,
2000- 0297 ( La. 3/ 24/ 00), 758 So. 2d 158. The plaintiff bears the burden of establishing
the duty the defendant owed under the circumstances. When no factual dispute exists
and no credibility determinations are required, the legal question of the existence of a
duty is appropriately addressed by summary judgment. Fredericks v. Daiquiris &
Creams of Mandeville, L. L. C., 2004- 0567 ( La. App. 1 Cir. 3/ 24/ 05), 906 So. 2d 636,
639- 640, writ denied, 2005- 1047 ( La. 6/ 17/ 05), 904 So. 2d 706.
Generally, there is no duty to protect others from the criminal activities of third
persons. Posecai v. Wal- Mart Stores, Inc., 99- 1222 ( La. 11/ 30/ 99), 752 So. 2d 762,
766. However, jurisprudence has recognized exceptions to this general rule where a
special relationship gives rise to such a duty. 3 Haynes Interests, LLC v. Garney
Companies, Inc., 2019-0723 ( La. App. 1 Cir. 2/ 26/ 21), 322 So. 3d 292, 303, writ denied,
2021- 00451 ( La. 5/ 25/ 21), 316 So. 3d 447. Pertinent to this appeal, the Louisiana
Supreme Court in Posecai, 752 So. 2d at 766, held that while business owners generally
have no duty to protect others from the criminal acts of a third person, " they do have a
2 Louisiana courts have adopted a duty -risk analysis in determining whether liability exists under the facts of a particular case. Under this analysis, the plaintiff must prove five separate 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). If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. Evans v. Abubaker, Inc., 2023- 00955 ( La. 5/ 10/ 24), 384 So. 3d 853, 858 n. 4.
3 For instance, a special relationship gives rise to such a duty in the case of the relationship between parent and child; employer and employee; carrier and passenger; innkeeper and guest; shopkeeper and business visitor; restaurateur and patron; jailer and prisoner; and teacher and pupil. See Paul v. LDG Port Royal Development, L. L. C., 2021- 0269 ( La. App. 1 Cir. 10/ 18/ 21), 2021 WL 4843937 at * 2, writ not considered, 2021- 01722 ( La. 1/ 12/ 22), 330 So. 3d 616, citing Terrell, 747 So. 2d at 750. In contrast, this court has found that landowners do not have a special relationship with those who live on their premises, and accordingly they have no corresponding special duty. Smith v. Howard, 489 So. 2d 1037- 1038 ( La. App. 1 Cir. 1986). The relationship between Mr. Brown, plaintiff herein, and Ms. Hotard, the manager of Mr. Brown's mother's apartment complex, is not one of the special relationships courts have found give rise to a duty to protect others from the criminal activities of third persons. See Paul, 2021 WL 4843937 at * 2, citing Terrell v. Wallace, 98- 2595 ( La. App. 1 Cir. 12/ 28/ 99), 747 So. 2d 748, 750, writ denied, 2000- 0297 La. 3/ 24/ 00), 758 So. 2d 158. Thus, we need not consider these exceptions further.
0 duty to implement reasonable measures to protect their patrons from criminal acts when
those acts are foreseeable[.]" Critically, however, the duty to protect patrons from criminal
acts only arises under limited circumstances, when the criminal act in question is
reasonably foreseeable to the owner of the business. Posecaii, 752 So. 2d at 766. In
short, it is only when the proprietor has knowledge of, or can be imputed with knowledge
of, the third party' s intended conduct that the duty to protect is invoked. 4 Fredericks,
906 So. 2d at 640.
In Posecaii, 752 So. 2d at 768, the Louisiana Supreme Court adopted the following
balancing test to determine whether a business owed a duty to protect its customers
from the acts of a third party:
With the foregoing considerations in mind, we adopt the following balancing test to be used in deciding whether a business owes a duty of care to protect its customers from the criminal acts of third parties. The foreseeability of the crime risk on the defendant' s property and the gravity of the risk determine the existence and the extent of the defendant' s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.
The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the
property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business' premises.
The Supreme Court applied the Posecaii balancing test in Ponceti v. First Lake
Properties., Inc., 2011- 2711 ( La. 7/ 2/ 12), 93 So. 3d 1251, 1251- 52, when considering
whether the owner of an apartment complex owed a duty to protect its residents from
injury caused by individuals riding bicycles on the complex sidewalks. As there was no
4 While business owners are in the best position to appreciate the crime risks that are posed on their premises and to take reasonable precautions to counteract those risks, to extend this limited duty to require business owners to protect the general public at large at all times, including the hours during which the business is closed to the public, would require businesses to assume responsibility " for the endemic crime that plagues our communities, a societal problem that even our law enforcement and other government agencies have been unable to solve." Posecai, 752 So. 2d at 768.
0 evidence of similar incidents, Ponceti concluded that the apartment complex did not owe
a legal duty to the plaintiff under the facts of the case. Ponceti, 93 So. 3d at 1253.
In addition to a business' s duty to implement reasonable measures to protect
patrons from criminal acts when those acts are foreseeable, a business may also
voluntarily assume a duty to protect others against the risk of criminal activity, and when
it does so, it must perform that protection with reasonable care. Haynes, 322 So. 3d at
303, citing Harris v. Pizza Hut of Louisiana, Inc., 455 So. 2d 1364 ( La. 1984) (" Pizza
Hut"). This rule, which was set forth in Pizza Hut, 455 So. 2d 1364, pre -dated Posecai.
In Pizza Hut, without deciding whether the restaurant had a duty to hire a security
guard, the Louisiana Supreme Court found that the restaurant had assumed the duty to
protect its patrons against criminal misconduct by third parties, and therefore, was liable
for the guard' s negligent breach of that duty. See Pizza Hut, 455 So. 2d at 1369- 71. In
Posecai, the Louisiana Supreme Court rejected the court of appeal' s finding that a store
assumed a duty to protect its patrons from crime when it hired a security officer to guard
its cash office, because the court of appeal had relied on " an erroneous interpretation"
of Pizza Hut. Posecai explained:
Pizza Hut does not stand for the proposition that a business assumes the duty to protect its customers from the criminal acts of third persons merely because it undertakes some security measures. Rather, Pizza Hut was an ordinary negligence case, holding that a security guard employed by a business must exercise reasonable care for the safety of the business' patrons and breaches that duty when his actions cause an escalation in the risk of harm. In Pizza Hut, the restaurant's security guard was negligent because he heightened the risk of harm to Pizza Hut's customers by provoking gunfire from armed robbers who had entered the restaurant.
Posecai, 752 So. 2d at 769 n. 7. Subsequent jurisprudence has also distinguished between
cases such as Pizza Hut and Posecai, in which " some" security measures were taken
that were insufficient to establish that the business assumed the duty, and cases where
a business " adopted a comprehensive security plan," which was sufficient to establish the
existence of a duty. See Pinsonneault v. Merchants & Farmers Bank & Trust Co.,
2001- 2217 ( La. 4/ 3/ 02), 816 So. 2d 270, 278 nA
In this case, Ms. Hotard sought summary judgment on the basis that there was an
absence of factual support for the duty element and the breach of the duty element of
Mr. Brown' s negligence action. Thus, as the mover on the motion for summary judgment,
7 Ms. Hotard bore the burden of proof. See LSA- C. C. P. art. 966( D)( 1). However, as the
plaintiff, Mr. Brown would bear the burden at trial of establishing the duty Ms. Hotard
owed under the circumstances. Fredericks, 906 So. 2d at 40. Consequently, Ms. Hotard
was not required to negate all essential elements of Mr. Brown' s claim in order to prevail
on summary judgment, but could instead satisfy her initial burden of proof on the motion
for summary judgment by pointing out an absence of factual support that she owed a
duty to Mr. Brown because the shooting was not reasonably foreseeable. See LSA- C. C. P.
art. 966( D)( 1). See Strauss v. Ironshore Specialty Insurance Company, 2020- 0411
La. App. 1 Cir. 12/ 30/ 20) 2020 WL 7770879, * 3 ( unpublished). If Ms. Hotard did so, Mr.
Brown then had to produce factual support sufficient to establish that he would be able
to satisfy his evidentiary burden of proof at trial. If he failed to make such a showing,
there was no genuine issue of material fact, and summary judgment was appropriate.
See LSA- C. C. P. art. 966( C)( 2); Fredericks, 906 So. 2d at 640- 41. We now examine the
showings made by both parties to determine whether the trial court's conclusion in this
case was correct. See Fredericks, 906 So. 2d at 641.
As noted above, the following facts are undisputed. Brandon Brown, plaintiff -
appellee herein, was inside his mother's apartment, Windsor Place apartment number
1406, with her permission on June 26, 2021. Mr. Brown' s stepson, Jyvariel Harvey,
knocked on the door of the apartment. Mr. Brown and Mr. Harvey greeted each other,
and Mr. Brown " gave him a hug." When Mr. Brown turned around to go back inside, he
expected Mr. Harvey to follow him; instead, Mr. Harvey shot Mr. Brown and fled the
scene.
During Mr. Brown' s deposition, he testified that he had been married to Mr.
Harvey's mother, Falicia Harvey Brown. In Mr. Brown' s verified discovery responses, Mr.
Brown described his relationship with Mr. Harvey as follows: " Plaintiff was Jyvariel
Harvey[' s] stepfather, good relationship, met him when he was 9. He wanted special
treatment for his mom' s funeral." Mr. Brown testified that when Falicia, his wife and Mr.
Harvey's mother, passed away in January 2021, Mr. Harvey was incarcerated and unable
to attend her funeral. When describing his interactions with Mr. Harvey before the
shooting, Mr. Brown testified that he had spoken to Mr. Harvey on the phone about
M Falicia' s deteriorating health and when Mr. Harvey expected to be released, but " there wasn' t no argument." Mr. Brown stated, " It was just a regular conversation." Mr. Brown
believed that Mr. Harvey was released a day or two before the shooting. Mr. Brown
testified that Mr. Harvey had never threatened him before the night of the shooting, and
Mr. Brown did not know why Mr. Harvey shot him until after the fact. Mr. Brown stated,
Well, as far as the whole upset with her dying [ sic]. He wanted certain things that just
didn' t happen." Mr. Brown spoke to Mr. Harvey when he was in jail after the shooting,
and Mr. Harvey apologized.
Ms. Brown testified that her son, plaintiff -appellee herein, visited her often at her
Windsor Place apartment because she lived by herself. Ms. Brown knew Mr. Harvey both
as Mr. Brown' s stepson and because he had been a student at the school where she
worked in the library. During Ms. Brown' s deposition, the following exchange occurred
between counsel for Ms. Hotard and Ms. Brown:
Q[.] On the date of the incident, would there have been any reason that you wouldn't have let Mr. Harvey come to that apartment complex?
A[ J No.
Q[.] ... On the date of the incident, were you aware of any type of disagreement between your son and Mr. Harvey?
Officer Johnson, a police officer with fourteen years of experience, testified he' d
been a resident of Windsor Place for about six years, "[ a] lmost as long as they've been
open," and served as the Courtesy Officer in exchange for free rent. At the time of the
shooting, Mr. Johnson was employed with the Brusly Police Department as a School
Resource Officer and a patrol officer; at the time his deposition was taken, Mr. Johnson
was employed with the White Castle Police Department as a patrol officer. As Courtesy
Officer at Windsor Place, Mr. Johnson testified he would walk around the complex at
random times of the day while wearing either a police shirt or a police uniform. Mr.
Johnson also brought his patrol car home to Windsor Place with him. Mr. Johnson agreed
that the presence of a police car, and an officer walking around an apartment complex,
was a " deterrent to crime." However, Mr. Johnson did not handle serious complaints, and
he or the tenants would call 911 when there was " a[ n] actual crime going on[.]" Thus,
9 Mr. Johnson testified that his role as Courtesy Officer involved handling such issues as
noise complaints, "[ l] ockouts[ j"when a tenant " has locked themselves out[,]" or " kids
playing on the stairwell or loitering."
Regarding the general safety of the Windsor Court premises, Mr. Johnson testified
the complex was located less than a mile from the St. Gabriel Police Department. Mr.
Johnson generally knew the residents of Windsor Place quite well. He alternately
described Windsor Place as " extremely" and " fairly" quiet. Mr. Johnson recalled the gates
to the apartment complex were generally open during the day and closed at night prior
to the Covid- 19 pandemic, while Ms. Brown testified that the gates were often open at
night prior to the Covid- 19 pandemic. Regardless, it is undisputed that the gates were
intentionally left open on the night of the shooting due to the Covid- 19 pandemic.
Mr. Johnson was not aware of gun violence on the property before the shooting
on June 26, 2021, and testified it was " absolutely not" something he expected to occur.
Ms. Brown testified she'd seen fights in the parking lot " maybe once or twice" at Windsor
Place, " all hours of the night[,]" but the involved parties would generally be inside before
police arrived. Ms. Brown had not heard of other incidents of gun violence and did not
make complaints to the complex about violence. Mr. Brown testified he had heard of
violence at Windsor Place prior to the shooting, and had heard of someone being
threatened with a gun in 2019 or 2020, but he had not heard of anyone being shot.
Specifically regarding the shooting at issue, Mr. Johnson testified he remembered
Ms. Brown, but he did not know Mr. Brown, his stepson Mr. Harvey, or the relationship
between Mr. Brown and Mr. Harvey. Mr. Johnson testified that observing a vehicle he did
not recognize, being told someone was going to see their stepfather, or seeing a tenant
allow someone to enter their unit would not have caused him any suspicion, stating,
fflenants can - - they have guests." Mr. Johnson testified that he was sleeping when the
shooting at issue occurred at about eleven o' clock at night. He received a phone call from
maintenance, looked out his window, and saw " all the police and EMS and everybody out
there." He did not work for the police department that was investigating the accident,
but was told by an officer that there had been a shooting. He called Ms. Hotard, conveyed
what he knew, and went home to begin his report.
10 Having conducted a thorough de novo review of the documents Ms. Hotard offered
in support of her summary judgment motion, we find that Ms. Hotard successfully pointed
out the absence of factual support for the duty element of Mr. Brown' s claim against her.
As set forth above, there is generally no duty to protect others from the criminal activities
of third persons. Posecaii, 752 So. 2d at 766. Rather, the duty of a business owner to
protect its patrons from the criminal acts of third persons only arises under limited
circumstances, when the criminal act in question was reasonably foreseeable to the owner
of the business. See Posecaii, 752 So. 2d at 766.
In this case, the evidence did not demonstrate that Ms. Hotard knew or should
have known that Mr. Harvey would shoot Mr. Brown. To the contrary, Mr. Brown, Ms.
Brown, and Officer Johnson all testified that they had no knowledge of previous shootings
at Windsor Place, and Mr. Brown and Ms. Brown testified that they had no advance
knowledge that Mr. Harvey presented a threat to Mr. Brown. Because the evidence
submitted by Mr. Brown does not establish that Mr. Harvey' s violence against Mr. Brown
was foreseeable, it was insufficient to establish that Ms. Hotard owed a duty to prevent
what occurred. Even Mr. Brown did not foresee being shot by Mr. Harvey. See Martinez
v. Wilson, 2009- 0442 ( La. App. 1 Cir. 10/ 23/ 09), 2009 WL 3454251, * 5 ( unpublished).
In short, the duty to protect that is owed by a business proprietor with knowledge or
imputed knowledge of the intended crime did not arise in this matter. See Fredericks,
906 So. 2d at 640. We further note that the limited security measures undertaken by
Windsor Place by engaging a single Courtesy Officer, who worked full- time off-site and
whose presence primarily served as a deterrent to crime, plainly did not constitute an
assumption of the duty on behalf of Ms. Hotard to protect Mr. Brown from the
unforeseeable threat posed by his stepson. See Pinsonneault, 816 So. 2d at 278 n. 4.
We note Mr. Brown' s argument that he should have had the opportunity to deny
Mr. Harvey access to Windsor Place. However, the deposition testimony of Mr. Brown and
Ms. Brown established that they were both unaware that Mr. Harvey wanted to shoot Mr.
Brown before the shooting occurred, and Mr. Brown' s deposition testimony further
established that he voluntarily welcomed Mr. Harvey into the apartment. Thus, as a
11 practical matter, we do not find that Mr. Brown' s opportunity to deny Mr. Harvey access
would have changed the outcome in this matter.
Because Ms. Hotard established the absence of factual support for the duty
element of Mr. Brown' s claim, the burden shifted to Mr. Brown to put forth proof that a
genuine issue of material fact existed such that Ms. Hotard was not entitled to judgment
as a matter of law. Mr. Brown did not present evidence in opposition to Ms. Hotard' s
motion, but instead, sought a continuance in order to obtain discovery responses from
the St. Gabriel Police Department. However, Mr. Brown did not explain what evidence the
St. Gabriel Police Department could possibly have in its possession that would establish
Ms. Hotard owed Mr. Brown a duty to protect him from being shot by his stepson under
these circumstances, where Mr. Brown' s stepson appeared at Mr. Brown' s mother' s door
and Mr. Brown welcomed his stepson into the apartment. Accordingly, the trial court
correctly denied Mr. Brown' s motion to continue, and summary judgment in favor of Ms.
Hotard was appropriate. See LSA- C. C. P. art. 966( C)( 2); Fredericks, 906 So. 2d at 640-
41.
CONCLUSION
For the foregoing reasons, the October 12, 2023 judgment of the trial court
granting summary judgment in favor of Tammy Hotard, and dismissing the claims
asserted by Brandon Brown against Tammy Hotard, is affirmed. Costs of appeal are
assessed to Brandon Brown.