Judgment rendered March 1, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,910-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MARIA MICKENS GREEN, Plaintiffs-Appellants INDIVIDUALLY AND AS THE NATURAL TUTRIX OF THE MINORS, JOSHUA EVANS, MAKIYA MICKENS, VERNON EVANS, JR., MAKAYLA EVANS, AND BRAXTON EVANS
versus
EAST CARROLL PARISH Defendant-Appellee SCHOOL DISTRICT/BOARD
Appealed from the Sixth Judicial District Court for the Parish of East Carroll, Louisiana Trial Court No. 22,766
Honorable Laurie R. Brister, Judge
THE RAYMOND LEE CANNON Counsel for Appellants LAW FIRM, LLC By: Raymond Lee Cannon
HAMMONDS, SILLS, ADKINS, Counsel for Appellee GUICE, NOAH & PERKINS, LLP By: Linda Kay Ewbank
Before STONE, STEPHENS, and THOMPSON, JJ. THOMPSON, J.
A mother of a disabled child who uses a wheelchair was injured when
she fell while transitioning her child from her vehicle into his wheelchair in
the school parking lot. The special services school bus equipped with a
wheelchair lift was not functioning properly, and the mother elected to
transport this child and her other children to school herself that day. She
asserts that her injuries were caused by the school board’s failure to provide
her disabled son with the necessary transportation, as provided by state law
and his special education program. The injured mother filed suit against the
school board alleging that it was negligent for failing to provide the required
transportation and services to her son, which caused her to fall when she
elected to transport him herself. Asserting that its alleged negligence was
not the cause of her injuries, the school board filed a motion for summary
judgment, which was granted by the trial court. The mother appeals.
Finding no genuine issue of material fact regarding the school board’s
negligence and the cause of her injuries, we affirm the trial court’s grant of
the summary judgment.
FACTS AND PROCEDURAL HISTORY
Appellant, Maria Mickens Green (“Green”), initiated this lawsuit
following an incident that occurred while dropping her son, Joshua Evans
(“Joshua”), off at his school one morning. Joshua, an 11-year-old 6th grader
at the time of the incident, attended Griffin Middle Academy in Lake
Providence, East Carroll Parish, Louisiana. Joshua has cerebral palsy and
uses a wheelchair. Because of his disability, Joshua receives an
Individualized Education Program (“IEP”) plan through the Louisiana Department of Education. Joshua’s IEP plan specifically provides that he
receives “Special Transportation,” and notes that “he rides special services
school bus” equipped with a wheelchair lift. The East Carroll Parish School
Board (“school board”) has a special services school bus with a wheelchair
lift to provide this service.
On September 6, 2016, Green arrived at Griffin Middle Academy in
her personal vehicle to drop her five children off at school, including Joshua.
The school board’s special services bus could not pick Joshua up for school
that day because the wheelchair lift was not functioning properly. Green
claims that she was not contacted by the bus aide or anyone from the school
to let her know ahead of time that Joshua could not be picked up. The
school board disputes that assertion and claims it did inform her of the
problems with the bus that morning. As discussed below, the issue of if or
when Green received notice of the malfunction of the wheelchair lift is not
material to the issues before this Court.
Green asserts she only transported Joshua and her other children to
school herself because the wheelchair lift was broken and Joshua could not
ride the special services bus. Upon arrival at the school, Green exited her
vehicle, removed Joshua’s wheelchair from the vehicle, and set it up for him.
While Green was lifting Joshua to transition him into his wheelchair, she
alleges she fell backwards onto the ground, with Joshua falling on top of her,
causing her injuries.
On August 28, 2017, Green filed a petition for damages against the
East Carroll Parish School Board, individually and on behalf of her five
children. Green alleges that her fall in the parking lot at Griffin Middle
2 Academy was caused solely by the fault and negligence of the school board:
failing to provide the safe and required transportation for Joshua; failing to
provide appropriate services and education for Joshua; failing to provide the
appropriate assistance and planning for Joshua’s transportation to and from
school; and failing to abide by state law and regulations applicable to the
education and assistive services for Joshua. Green claims that as a result of
the school board’s negligence, she and Joshua sustained bodily injuries and
incurred medical expenses. Green also asserts loss of consortium claims on
behalf of her four other children.
A pretrial conference was held on December 10, 2020, and a
scheduling order was issued. The deadline to file dispositive motions was
set for August 23, 2021, with a trial date of October 27, 2021. On August
18, 2021, the school board filed its motion for summary judgment. The
school board mailed a courtesy copy of its motion for summary judgment to
counsel for Green the day before, August 17, 2021. Counsel for Green was
served by the Madison Parish Sheriff with the motion for summary judgment
on or about August 31, 2021.
In its motion for summary judgment, the school board argued that it
did not cause Green’s injuries that resulted from her fall. The school board
noted several material facts that were not in dispute. The school board
asserted that Green regularly transports her son and her other children to and
from school. The school board permits Green the added convenience and
courtesy to load Joshua and her other children in the front of the school, as
opposed to the side of the school where other students are typically dropped
off. On the day of her fall, by her own admission, Green was tired and in a
3 hurry, and she did not seek assistance from any school board employee to
help her with unloading Joshua from her vehicle. With regard to the special
services school bus, the school board admitted that the wheelchair lift was
not working that day, which was discovered during a daily safety check.
Therefore, rather than breach its duty to provide safe transportation for
Joshua, the bus did not pick him up. The school board also noted that the
bus was new, and the issues with the wheelchair lift were not anticipated.
The issues with the wheelchair lift arose at the beginning of the school year,
and there were numerous attempts to repair the problem. The school board
asserted that Green did not inform the Special Education Director, Pat
Roberson, or any other employee at the school that she was unable to
transport Joshua to school when the lift was not operational.
The school board argued that Green’s fall was not due to a premises
defect or any condition at Griffin Middle Academy. During her deposition,
Green testified she was tired and in a hurry on the morning of her fall, and
she did not identify a defect or dangerous condition on the property that
caused her fall. Further, the school board argued that Green’s fall was not
caused by its inability to provide transportation on the bus for Joshua that
morning. The school board contended that its duty to provide transportation
to Joshua does not include an obligation to protect against the risk that Green
– Joshua’s parent – might lose her balance and fall while she hurriedly
delivers her children to school. The school board argued the duty imposed
by the school board’s obligation to provide transportation to Joshua did not
extend to Green to protect her from a personal injury. The school board
4 argued that the risk of injury to Green was an attenuated risk that was not
foreseeable.
Green filed an opposition to the motion for summary judgment.
Green included an objection to the motion for summary judgment on the
basis of untimely service. Green argued that her attorney was not served
with the motion by the Madison Parish Sheriff’s Office until September 2,
2021. With her opposition memorandum, Green included Joshua’s IEP plan,
as well as deposition testimony from school board employees, including
Special Education Director, Pat Roberson, and acting Superintendent,
Megan Brown. Green argued the IEP plan provided that Joshua required
special transportation services, specifically a bus equipped with a wheelchair
lift. Further, Green argued that the lift was used to prevent falls and injuries
to Joshua and aides or helpers. Green argued that the IEP plan does not
specifically provide that Joshua is to be furnished a homebound teacher for a
non-medical reason when the special services bus does not transport him to
school, which is contradictory to the deposition testimony of the school
board employees. Green also argued that the IEP plan does not specify that
Joshua would receive an excused absence for the day in the event she could
not transport Joshua herself when the bus was not running. Green implies
those considerations were instrumental to her decision to transport Joshua to
school that day.
The motion for summary judgment was heard on September 28, 2021.
The trial court ruled in favor of the school board and dismissed Green’s suit.
In an oral ruling, the trial judge first found that the school board’s motion for
summary judgment was filed timely, in accordance with the court’s
5 scheduling order. The trial judge noted that the school board does not have
control of the service by the sheriff in Madison Parish, where Green’s
attorney is located.
The trial judge conducted a duty-risk analysis to determine whether
the school board owed a duty to Green. The trial judge acknowledged that
the school board did have a duty to provide transportation to Joshua to and
from school. The trial judge stated that school board employees, Pat
Roberson and Megan Brown, testified in their depositions that if Joshua had
not come to school that day, the school would have provided homebound
services and he would not have been marked absent. The trial judge noted
that the school board could not have foreseen that Green would have been
tired and in a hurry when she took Joshua to school, or that she would fall
when unloading him from her vehicle. The trial judge noted that Green
regularly unloaded Joshua at school, and she is permitted to park her vehicle
close to the front entrance of school.
The trial judge found that the risk of Green falling in the course of a
familiar and common task was not in the scope of the school board’s duty to
provide transportation to Joshua. With regard to Joshua’s IEP plan and the
school’s legal duties, the trial court found those duties did not extend to
Green’s fall, particularly where there were no allegations of a defect in the
parking lot, or any other factor that might have contributed to her fall. The
trial judge concluded the evidence showed the only reason for Green’s fall
was her own haste and negligence, and there were no genuine issues of
material fact. Green appeals.
6 DISCUSSION
Green asserts several assignments of error in her appeal of the trial
court’s ruling on the motion for summary judgment. First, we will consider
Green’s assignment of error which relates to service of the motion for
summary judgment after it was filed.
Service of Motion for Summary Judgment
• The school board’s motion for summary judgment was not served according to law. It is not a judgment according to law.
Green argues that the school board’s motion for summary judgment
was not timely served. However, the motion for summary judgment was
timely filed, in accordance with the scheduling order issued by the trial
court. The school board’s motion and memorandum in support were
received and filed by the clerk of court on August 18, 2021, 69 days prior to
the trial date, and five days in advance of the August 23, 2021 date included
in the trial court’s scheduling order. Green’s counsel was also mailed a copy
of the motion on August 17, 2021. The record indicates that Green’s
counsel was served by the sheriff in Madison Parish on September 3, 2021,
which provided additional notice before the scheduled hearing.
Green objected to the service date because it was past the deadline to
file dispositive motions included on the scheduling order. Green urged her
objection in both her opposition to the motion for summary judgment, as
well as during the hearing on the motion on September 28, 2021. Both
times, the trial court overruled the objection. Further, Green does not argue
that a “delay” in service resulted in any hardship or prejudice, and we do not
see that any hardship existed as a result of late service. Green had notice,
7 appeared at the hearing, and was not prejudiced in any manner. This
assignment of error is without merit.
Green alleges two assignments or error claiming certain facts are
material to her claims against the school board.
Material Facts
A fact is material if it potentially ensures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the legal
dispute. Jackson v. Minden Police Dep’t, 54,799 (La. App. 2 Cir. 11/16/22),
351 So. 3d 880; Green v. Brookshire Grocery Co., 53,066 (La. App. 2 Cir.
9/25/19), 280 So. 3d 1256. A genuine issue of material fact is one as to
which reasonable persons could disagree; if reasonable persons could reach
only one conclusion, there is no need for trial on that issue and summary
judgment is appropriate. Jackson v. City of New Orleans, 12-2742 (La.
1/28/14), 144 So. 3d 876, cert. denied, 574 U.S. 869, 135 S. Ct. 197, 190 L.
Ed. 2d 130 (2014); Jackson, supra. In determining whether an issue is
genuine, a court should not consider the merits, make credibility
determinations, evaluate testimony, or weigh evidence. Jackson, supra.
• The judgment granting the school board’s motion for summary judgment is error of law because there are genuine issues of material fact on the legal issue of the foreseeability of the mother of a disabled child falling with the disabled child as she is tired and hurries the child to school, where there is conflicting evidence on whether the mother was told not to bring the child to school because the lift on the special needs school bus did not work.
Green argues that there is conflicting evidence in the record related to
whether the school board contacted her to inform her that the special
services school bus was not operable on the morning on her accident. The
school board contends that it did contact Green. Regardless, we find that
8 whether Green was notified by the school board about the bus is not a
material fact. Whether the school board contacted Green does not affect her
ultimate success on her theory of recovery, which is that the school board’s
obligation to provide transportation to Joshua extends to her safety when she
transports the child herself. At some point that morning, Green elected to
transport Joshua and her other children to school, notice or not. This
• The trial court’s determination that the lawsuit is not about whether the school board violated the law regarding disabled children in providing access to transportation and aides is error of law.
Green argues that Joshua’s IEP plan includes a requirement that aides
assist Joshua, even when he is transported to school in her personal vehicle.
However, the record shows that bus aides are required to assist Joshua when
he actually rides the special services bus. The record does not show that
aides assist students or their parents when they travel in their own personal
vehicles. With regard to Green’s fall and her injuries, whether an aide was
present to assist Joshua is not a material fact. Access to an aide who
normally assists Joshua on the bus does not potentially ensure Green’s
recovery, because an aide’s role does not include preventing falls by his
mother in the school parking lot. Green did not request assistance that
morning, and no aide was involved in the fall in any manner. This
Green next asserts three assignments of error related to the substance
of the trial court’s ruling granting the school board’s motion for summary
judgment and the determination that the school board’s negligence did not
cause her injuries.
9 Motion for Summary Judgment and Negligence
Appellate courts review motions for summary judgment de novo,
using the same criteria that govern the district court’s consideration of
whether summary judgment is appropriate. Peironnet v. Matador Res. Co.,
12-2292 (La. 6/28/13), 144 So. 3d 791; Bess v. Graphic Packaging Int’l,
Inc., 54,111 (La. App. 2 Cir. 11/17/21), 331 So. 3d 490. A motion for
summary judgment is a procedural device used when there is no genuine
issue of material fact for all or part of the relief prayed for by a litigant.
Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So. 3d 1002. The procedure is
favored and shall be construed to secure the just, speedy, and inexpensive
determination of actions. La. C.C.P. art. 966(A)(2).
A motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue
as to material fact and that the mover is entitled to judgment as a matter of
law. La. C.C.P. art. 966(A)(3). In determining whether an issue is genuine,
a court should not consider the merits, make credibility determinations,
evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co.,
51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied, 17-01251 (La.
10/27/17), 228 So. 3d 1230; Bess, supra.
The burden of proof rests with the mover. Nevertheless, if the mover
will 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 party’s
10 claim, action, or defense. 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.
La. C.C.P. art. 966(D)(1). 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. La. C.C.P. art. 967(A). 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.
La. C.C.P. art. 967(B).
Liability for negligence is determined by applying the duty/risk
analysis. Bufkin v. Felipe’s La., LLC, 14-0288 (La. 10/15/14), 171 So. 3d
851; Chreene v. Prince, 52,351 (La. App. 2 Cir. 9/26/18), 256 So. 3d 501.
The plaintiff must prove the defendant’s conduct was the cause-in-fact of his
harm, the defendant owed a duty of care, the defendant breached the duty,
and the risk of harm was within the scope of protection afforded by the duty
breached. Id.
Whether a legal duty is owed by one party to another depends upon
the facts and circumstances of the case and the relationship between the
parties. Carroll v. Allstate Ins., 51,591 (La. App. 2 Cir. 9/27/17), 244 So. 3d
772; Gullette v. Caldwell Par. Police Jury, 33,440 (La. App. 2 Cir. 6/21/00),
765 So. 2d 464. The question of whether a duty exists is a question of law
11 which may be appropriate for resolution by summary judgment when it is
clear that no duty exists as a matter of law and the facts of credibility of the
witnesses are not in dispute. Gullette, supra.
The scope of duty inquiry involves the question of how easily the risk
of injury can be associated with the duty sought to be enforced. Roberts v.
Benoit, 605 So. 2d 1032 (La. 1991); Richardson v. Lloyds, 48,715 (La. App.
2 Cir. 3/26/14), 136 So. 3d 953. It is not necessary for the defendant to have
foreseen the particular injury that occurred. A risk may be included in the
scope of the duty if the injury is easily associated with other risks that are
foreseeable. Forest v. State, Through La. Dep’t of Transp. & Dev., 493 So.
2d 563 (La. 1986). While the existence of duty is a legal question, “[t]here
is no ‘rule’ for determining the scope of the duty.” Roberts, supra; Pillow v.
Entergy Corp., 36,384 (La. App. 2 Cir. 9/18/02), 828 So. 2d 83, writ denied,
02-2575 (La. 12/13/02), 831 So. 2d 987. The scope-of-duty inquiry is fact
sensitive and ultimately turns on “a question of policy as to whether the
particular risk falls within the scope of the duty.” Id.
• The district court erred in finding that the school board owed no legal duty to [Green] to assist her in getting her disabled child, Joshua, out of her vehicle and into the school building when the lift on the special needs school bus did not work.
• The district court exceeded its legal authority by granting summary judgment contrary to La. C. C. P. art. 967(B) because the deposition testimony shows specific facts that there is (sic) a genuine issue for trial.
• The district court erred as a matter of law when it ruled on this summary judgment record that [Green] is not within the class of persons protected from the unreasonable risk of persons falling with Joshua while getting him into school building for school.
12 In this case, Green cannot prove the school board’s conduct was the
cause-in-fact of her harm. Green’s theory of the case is that the school
board’s duty to Joshua contained in his IEP plan extended to her because she
was required to transport him to school when the special services bus was
not working that particular day. Green argues that had the special services
school bus transported Joshua to school, she would not have driven him
herself. As such, she would not have been injured if the school board had
complied with its duties under the IEP plan. The trial court correctly found
that the school board did owe a duty of care to Joshua pursuant to the IEP
plan. Further, the school board acknowledges that it failed to provide the
required transportation to services to Joshua on the morning of Green’s fall.
The mechanical reliability of any vehicle cannot be guaranteed. When
vehicles fail to work, those affected must make reasonable decisions and act
with due care and safety.
When the required special services transportation is not available, the
record shows that a parent has options. A parent may request alternative
transportation. In this case, there was only one special services school bus
equipped with a wheelchair lift in the East Carroll Parish school board’s
fleet of vehicles. Unfortunately, the lift was not working that morning. The
record shows that attempts to resolve the issue were underway. The record
further shows that a parent could request a homebound instructor in the
event the child cannot make it to school for medical or other reasons. Here,
there is no evidence that Green sought to make such arrangements. Green
regularly transported all of her children to school, including Joshua, and the
record reveals that she was able to park her vehicle close to the front
13 entrance of the school as a convenience on those occasions when she
dropped Joshua off herself. Once Green elected to transport her children to
school in her own vehicle, the school board’s duty contained in the IEP plan
regarding Joshua’s transportation no longer extended to his safety in his
mother’s vehicle. It follows that when Green elected to drive her children to
school, whether she would have preferred them to ride the bus or not, the
school board did not owe a duty to her to prevent her from sustaining an
injury while transporting her children. The school board cannot be
responsible for Joshua from the threshold of his home to the school property
when he is being voluntarily transported by his mother. Here, it is clear that
no duty exists as a matter of law, and summary judgment was appropriate.
Green argues that there is an ease of association between the injuries
from her fall and the school board’s failure to provide Joshua with his
required transportation. Determining the scope of the school board’s duty
involves the question of how easily the risk of Green’s injury can be
associated with the duty sought to be enforced – transporting Joshua to
school on the special services school bus. We find that her injury is too
attenuated from the school board’s duty to provide safe transportation for
Joshua, pursuant to his IEP plan. Green’s argument would extend liability to
the school board if the private vehicle Joshua was riding in was involved in
an accident on the way to school. The trial court correctly found that the
risk of Green falling was not in the scope of the school board’s duty to
provide transportation to Joshua. Accordingly, these assignments of error
are without merit.
14 Green’s final assignment of error relates to the dismissal of her
lawsuit, including Joshua’s personal injury claim.
Joshua’s Claim
• The trial court committed legal error in granting the school board’s motion for summary judgment dismissing Joshua’s claims for personal injury.
After granting the school board’s motion for summary judgment, the
trial court dismissed Green’s lawsuit. On appeal, Green argues Joshua’s
cause of action should not have been dismissed. The trial court determined
that the school board was not at fault for Green’s fall. Therefore, the school
board cannot be held liable for Joshua’s injuries resulting from her fall,
which was caused by her own negligence. No party has alleged that Joshua
was at fault for his mother’s fall or for her conduct. As such, with the
granting of the motion for summary judgment there are no remaining claims
or theories of recovery, and the action was properly dismissed. This
CONCLUSION
For the above reasons, we affirm the trial court’s judgment. Costs
of this appeal are assessed to appellant, Maria Mickens Green.
AFFIRM.