Richardson v. Lloyds

136 So. 3d 953, 2014 WL 1230300, 2014 La. App. LEXIS 809
CourtLouisiana Court of Appeal
DecidedMarch 26, 2014
DocketNo. 48,715-CA
StatusPublished
Cited by3 cases

This text of 136 So. 3d 953 (Richardson v. Lloyds) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richardson v. Lloyds, 136 So. 3d 953, 2014 WL 1230300, 2014 La. App. LEXIS 809 (La. Ct. App. 2014).

Opinions

WILLIAMS, J.

hThe plaintiff, James Richardson, appeals a summary judgment in favor of the defendants, ASI Lloyds and Cash Clay. The district court found there were no genuine issues of material fact concerning the question of whether Clay was negligent in allowing his girlfriend, who could not swim, to host a children’s pool party in his absence. For the following reasons, we reverse and remand for further proceedings.

FACTS

On June 27, 2011, 12-year-old Jamarcus Hilliard attended a birthday party at the Sterlington residence of Cash Clay. During the party, Jamarcus, who could not swim, and eleven other children were permitted to play in and around the swimming pool located on the property owned by Clay. In addition to Clay, the other residents of the household were his girlfriend, Kinsha Walton, and her three children, Kimberly Walton, Derek Walton and Alexis Walton. Kinsha and Alexis did not know how to swim, but Kimberly and Derek apparently could swim. Clay allowed Kinsha to host the children’s party in his absence. During the party, Jamarcus drowned in the pool.

In an affidavit, Michael Douglas, the father of three children who were at the party, stated that he had arrived at the house shortly before the accident and that Kinsha was the only adult that he saw in the pool area. Douglas further stated as follows: that while he was speaking with Kinsha, some of the children began yelling that Jamarcus was in the deep end of the pool and wasn’t coming up; Kinsha said she could not swim and asked Douglas to get the boy; although Douglas could not swim either, he jumped |ginto the pool in an attempt to assist Jamarcus, but Douglas was unable to reach the boy and returned to the surface; someone then ran into the house to get Derek, who jumped into the pool and pulled Jamarcus out of the water, but he was already dead.

In her deposition, Kinsha Walton testified that when Douglas arrived, Derek, who was 20 years old, had just left the pool area and that Kimberly, who was deaf and in her 20s, was still near the pool. Walton stated that she was in the pool and speaking to Douglas when the children began yelling that Jamarcus didn’t come up. Walton testified that after Douglas could not reach the boy, she asked Kimberly to get Jamarcus, but she indicated in sign language that she did not know what to do. Walton stated that Alexis called Derek, who removed Jamarcus from the pool and attempted CPR, but Jamarcus did not respond. Jamarcus was transported to St. Francis North Hospital, where he was pronounced dead.

Subsequently, the plaintiff, James Richardson, the father of Jamarcus, filed a petition for damages against the defendants, Cash Clay and his homeowner’s insurer, ASI Lloyds. The defendants filed a motion for summary judgment and an exception of no right of action. The district court subsequently denied the defendants’ exception of no right of action.

After a hearing on the summary judgment motion, the district court issued written reasons finding that Kinsha Walton was not an insured under the insurance policy. The court further found that plaintiff failed to present evidence that the pool was defective or that Clay was negligent in allowing Kinsha Walton to host the party in his absence. The court rendered judgment granting the defendants’ motion for summary judgment and | ¡¡dismissing plaintiffs claims. The plaintiff appeals the judgment.

[955]*955DISCUSSION

The plaintiff contends the trial court erred in granting the defendants’ motion for summary judgment. Plaintiff argues that there is a genuine issue of fact as to whether Clay was negligent in relying on a non-swimming adult to supervise a pool party with a group of young children who could not swim.

To determine liability in a negligence case, we apply the duty-risk analysis, which requires the plaintiff to prove that the defendant’s conduct was a cause-in-fact of the resulting harm, that defendant owed a duty of care to the plaintiff, that the duty was breached and that the risk of harm was within the scope of protection afforded by the duty breached. Roberts v. Benoit, 605 So.2d 1032 (La.1991); St. Hill v. Tabor, 542 So.2d 499 (La.1989). Cause-in-fact is generally a “but for” inquiry, which requires plaintiff to show he would not have sustained injury but for the defendant’s conduct. Roberts, supra.

Duty is defined as the obligation to conform to the standard of conduct associated with a reasonable person in like circumstances. Wiley v. Sanders, 34,923 (La.App.2d Cir.8/22/01), 796 So.2d 51. The test to determine if a breach of a landowner’s duty has occurred is whether, in the management of his property, he has acted as a reasonable person in view of the probability of injury to others. Wiley, supra; Collins v. Whitaker, 29,324 (La.App.2d Cir.4/2/97), 691 So.2d 820. In a negligence action, each inquiry must be affirmatively answered in order for plaintiff to recover. Roberts, supra.

14Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The burden of proof remains with the mover. However, if the mover will not bear the burden of proof at trial on the matter before the court, then the mover is not required to negate every essential element of the adverse party’s claim, action or defense; rather, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or defense. If the adverse party fails to produce factual support to show that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. LSA-C.C.P. art. 966(C).

Summary judgment is seldom appropriate when the particular circumstances of the case call for credibility evaluations and the weighing of testimony. Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir.4/7/04), 870 So.2d 1131, writ denied, 2004-1420 (La.9/24/04), 882 So.2d 1142. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La.10/2/09), 18 So.3d 122.

In the present case, the record contains the deposition of Cash Clay, who testified that he knew that Kinsha Walton was going to have a swimming party at his residence. Clay stated that Kinsha could not swim, but that her adult children, Derek and Kimberly, knew how to swim. Clay |stestified that Kinsha had not told him Derek and Kimberly would be at the swimming party, but he knew they were always there when Kinsha hosted a pool party. Clay stated that Derek and Kimberly were there “to swim with the kids.” Clay testified that he did not know how [956]*956many children had been invited or whether any could swim, but there were sufficient life vests in the pool area. Although he stated that Derek helped his mother supervise the other children, Clay acknowledged he was told that Derek had been in the house and not at the pool when Jamar-cus was seen underwater.

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136 So. 3d 953, 2014 WL 1230300, 2014 La. App. LEXIS 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-lloyds-lactapp-2014.