Lateresa Morgan, Individually and O/B/O Minor E.W. v. Kipp New Orleans, Inc. and Hanover Insurance Group

• Court: Louisiana Court of Appeal
• Decided: January 26, 2024
• Docket: 2023-CA-0326
• Status: Published

Opinion

LATERESA MORGAN, * NO. 2023-CA-0326 INDIVIDUALLY AND O/B/O MINOR E.W. * COURT OF APPEAL VERSUS * FOURTH CIRCUIT KIPP NEW ORLEANS, INC. * AND HANOVER INSURANCE STATE OF LOUISIANA GROUP *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-11956, DIVISION “J” Honorable D. Nicole Sheppard, ****** Judge Daniel L. Dysart ****** (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Karen K. Herman)

Danatus Norman King DANATUS KING & ASSOCIATES 2475 Canal Street, Suite 308 New Orleans, LA 70119

John W. Milton Ryan Elton King KING MILTON LAW GROUP, L.L.C. 213 East Willow Street P.O. Box 91362 Lafayette, LA 70509

COUNSEL FOR PLAINTIFF/APPELLANT

Melissa M. Lessell Casey B. Wendling Denia S. Aiyegbusi DEUTSCH KERRIGAN, L.L.P. 755 Magazine Street New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

JANUARY 26, 2024 DLD In this personal injury case, the plaintiff, Lateresa Morgan, individually and SCJ KKH on behalf of her minor child, E.W., appeals the district court’s granting of

summary judgment in favor of the defendants, KIPP New Orleans, Inc. and

Hanover Insurance Group (“Hanover”). For the reasons that follow, we affirm the

ruling of the district court.

FACTS AND PROCEDURAL HISTORY

Ms. Morgan alleges that her minor child, E.W., was sexually battered on

Friday, December 1, 2017, while a student at KIPP Morial School. At the time of

the alleged incident, E.W. was in the fourth grade. E.W. also had a “Medical Plan”

in his record implementing the Buddy System, which required E.W. to have a

“Buddy” (another student) with him when he left the classroom due to his type 1

diabetes. On the date of the incident, E.W. was in math class near the end of the

school day and asked to go to the restroom. He was allowed to go alone and told

to come right back to class. When E.W. returned to the classroom, he told his

1 teacher, Amanda Steptore, that another student touched him inappropriately in the

restroom.

Ms. Steptore asked E.W. for additional details about the incident, went to

speak to the other student involved, and reported the incident to KIPP

administrators. When E.W. arrived home, he told Ms. Morgan that he had been

inappropriately touched in the bathroom at school. Thereupon, Ms. Morgan

contacted Ms. Steptore via text message. Ms. Steptore called Ms. Morgan to

discuss the incident.

On Monday, December 4, 2017, KIPP administrators examined video

surveillance footage and determined that E.W. and the other student in question

were not in the bathroom at the same time and the only contact that occurred was a

brief open-handed touch of the lower back while the other student passed E.W.

while E.W. was looking out of a window in the hallway. Also on December 4,

2017, pursuant to Ms. Morgan’s request, the police arrived at KIPP Morial School

to conduct an investigation. The police interviewed several KIPP employees and

E.W.’s parents. The police also viewed the KIPP’s video surveillance footage of

the incident. Thereafter, the police closed their investigation. KIPP completed and

closed its investigation on the following day, Tuesday, December 5, 2017.

On November 29, 2018, Ms. Morgan filed a petition for damages, on behalf

of herself and E.W., against KIPP New Orleans and Hanover. She alleges that due

to KIPP’s failure to implement the Buddy System, E.W. was allowed to leave the

classroom without a Buddy and was sexually battered by an older student. Ms.

2 Morgan also alleges that KIPP failed to notify her about the incident or report it to

the proper authorities.

After time for adequate discovery to be conducted, KIPP filed a motion for

summary judgment and memorandum in support of summary judgment on August

11, 2022. KIPP argued that no sexual battery took place. KIPP also maintained

that it did not breach any duty of care as it exercised reasonable, competent

supervision appropriate for the circumstances. Additionally, KIPP alleged that Ms.

Morgan had no support for any claim that KIPP’s failure to notify her about the

touching and/or failure to implement the buddy system had any impact on the

situation and/or rendered KIPP negligent in anyway. KIPP attached the transcript

of the deposition of Ms. Morgan and the affidavit of James O’Donnell, KIPP’s

Manager of Student Support Services at the time of the incident in question, which

specifically references, authenticates and attaches surveillance video depicting the

December 1, 2017 incident in question.

Ms. Morgan filed her opposition to the motion for summary judgment on

September 27, 2022. She focused on the incident itself and argued that had KIPP

implemented and used the Buddy System, this would have prevented the incident

from occurring.

Hearings on the motion for summary judgment took place on October 12,

and November 4, 2022. Following these hearings, the trial court granted the

motion for summary judgment filed on behalf of KIPP and Hanover, thereby

dismissing with prejudice Ms. Morgan’s claims against them. On November 16,

3 2022, the trial court issued a signed final judgment granting the defendants’ motion

for summary judgment. It is from this judgment that Ms. Morgan now appeals.

DISCUSSION

On appeal, the plaintiff raises the following assignments of error: (1) the trial

court erred in finding KIPP did not breach its duty of reasonable supervision of

E.W. and M.B.1; (2) the trial court erred in finding that KIPP’s failure to

implement the Buddy System was not the legal or proximate cause of E.W.’s

injuries; and (3) the trial court erred in not finding that KIPP breached its duty to

timely notify E.W.’s parents of the improper touching of E.W.

To determine whether summary judgment is appropriate, appellate courts

review evidence de novo under the same criteria employed by the trial court.

Quantum Resources Mgmt., LLC v. Pirate Lake Oil Corp., 12-1472, p. 5 (La.

3/19/13), 112 So.3d 209, 214.

Summary judgment, which is favored in Louisiana, is required when the

“motion, memorandum, and supporting documents show that there is no genuine

issue as to material fact and the mover is entitled to judgment as a matter of law.”

La. C.C.P. art. 966(A)(3). “[I]f the mover does 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

1 M.B. is the other student involved in the incident.

4 party’s claim, action, or defense.” La. C.C.P. art. 966(D)(1). “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.” Id.

“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.” La. C.C.P. art.

967(B). “If he does not so respond, summary judgment, if appropriate, shall be

rendered against him.” Id.

In the instant case, the defendants supported their motion for summary

judgment with properly authenticated video surveillance footage, which shows the

incident giving rise to the plaintiff’s lawsuit. As shown by the surveillance video,

M.B. was walking down the hallway with his hand outstretched, brushing his

fingers against the wall as he walked. M.B. passes by E.W. as he proceeds down

the hallway. The video clearly depicts the point of contact, the duration of contact,

and the type of contact. It is less than one second in duration and consists of an

openhanded brush across E.W.’s lower back. There are no genuine issues of

material fact. The incident shown on the video was not a sexual battery.

Furthermore, constant supervision of all students is not possible nor required for

educators to discharge their duty to provide adequate supervision. See Wallmuth v.

Rapides Parish Sch. Bd., 01-1779 (La. 4/3/02), 813 So.2d 341. Generally, teachers

5 are obliged to use only that supervision and discipline required of a reasonably

prudent person under the circumstances at hand. Brammer v. Bossier Parish Sch.

Bd., 50,220, p. 5 (La. App. 2 Cir. 11/25/15), 183 So.3d 606, 612.

KIPP and Hanover have demonstrated that Ms. Morgan will not be able to

meet her evidentiary burden at trial as she cannot prove that KIPP and /or its

employee’s actions were in breach of the standard of care; the risk of injury was

foreseeable; and/or KIPP had a duty to report the incident to the plaintiff and the

authorities before completing their investigation. Accordingly, summary judgment

was appropriate in this case.

CONCLUSION

For the above and foregoing reasons, the judgment of the district court is

affirmed.