Ronald Brooks v. Dr. John Scott Sibille

• Court: Louisiana Court of Appeal
• Decided: February 12, 2014
• Docket: CA-0013-1015
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-1015 consolidated with 13-1016

RONALD BROOKS, ET AL.

VERSUS

DR. JOHN SCOTT SIBILLE, ET AL.

**********

APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 092763 C/W 092764 HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Jimmie C. Peters, Judges.

AFFIRMED.

Terry L. Rowe Terry L. Rowe & Associates P. O. Box 3323 Lafayette, LA 70502 Telephone: (337) 232-4744 COUNSEL FOR: Defendants/Appellees - State Farm Fire & Casualty Company, Dr. John Scott Sibille, and Paulette Sibille

H. Edward Sherman H. Edward Sherman, APLC 819 Nunez Street New Orleans, LA 70114 Telephone: (504) 587-7100 COUNSEL FOR: Plaintiffs/Appellants - Ronald Brooks, Jennifer Chavis, Jonas Chavis, Jamesha Wilson, and Jaliyah Wilson THIBODEAUX, Chief Judge.

Ronald Brooks and Jennifer Chavis, the parents of two minors who

drowned in a residential pond, individually brought wrongful death and survival

actions against the property owners, John and Paulette Sibille, and their insurer.

After the cases were consolidated, the defendants filed a motion for summary

judgment, arguing that the plaintiffs failed to establish the element of duty or that

the pond constituted an attractive nuisance. Finding no genuine issue of material

fact, the trial court granted the defendants’ motion for summary judgment. For the

following reasons, we affirm the trial court’s judgment.

I.

ISSUE

We shall consider whether the trial court erred in granting defendants’

motion for summary judgment.

II.

FACTS AND PROCEDURAL HISTORY

This case arises out of an accident on May 24, 2008, which resulted in

the drowning deaths of two twelve-year-old boys, Justin Dean and Jerome Chavis.

On the morning of the incident, Jennifer Chavis left her two minor children,

Jerome Chavis and Jonas Chavis, in the care of her mother while she attended a

funeral. Jennifer instructed her children that they were under the care of their

grandmother and were not to go on other people’s land without permission.

Later that morning, Jerome and Jonas were given permission to walk

to the nearby convenience store. During the trip, they met two minor brothers, Trevor and Tanner Thompson, as well as Justin Dean. The five boys decided to go

meet another friend, twelve-year-old Blake Palmer. On the way, the boys met

Blake riding his go-cart. Blake had received permission from his mother,

Bridgette Foster, to travel to the property of Dr. John Scott Sibille and Paulette

Sibille, to see if their son, Ross Sibille, was available to play. If Ross was not

home, Blake was instructed to come back home. After encountering the five boys,

Blake invited them to ride in his go-cart around the neighborhood.

After go-carting, the boys entered the Sibilles’ property which fronted

a local pond. On this particular day, the Sibilles were not home and had no

knowledge that Blake or any other person would be on the property. In the process

of washing off mud from go-carting, Jerome Chavis and Justin Dean entered the

pond and accidentally drowned. There were no signs around the pond warning

against swimming or trespassing. In the past, however, Dr. Sibille had warned

Blake never to go fishing or swimming in the pond without adult supervision.

Plaintiffs Robert Brooks, the father of Justin Dean, and Jennifer

Chavis, the mother of Jerome Chavis, individually filed wrongful death and

survival actions against the Sibilles and their insurer, State Farm Fire & Casualty

Insurance Company, alleging that the pond constituted an attractive nuisance and

the Sibilles were negligent in failing to post visible warning signs regarding the

dangerous depth of the pond or notify the parents of Blake Palmer that Blake

should not to trespass on their property. After the cases were consolidated,

defendants filed a motion for summary judgment, contending that the plaintiffs

failed to establish that the Sibilles’ owed the minors a duty of care as property

owners as the pond did not constitute an attractive nuisance. In opposing the

motion, the plaintiffs argued that a jury could reasonably infer from the facts that

2 the pond constituted an unreasonable risk of harm giving rise to a duty to warn. In

support of their opposition, the plaintiffs submitted affidavits from two clinical

psychologists who attested that Justin Dean and Jerome Chavis may not have had

the requisite level of intelligence and judgment to appreciate the objective risk of

the pond. The trial court granted the defendants’ motion for summary judgment,

reasoning that the pond was an open and obvious danger that did not amount to an

attractive nuisance giving rise to a duty to warn.

III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate, i.e., whether a genuine issue of material fact exists and whether the

mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty

Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. In

our review, we shall consider the record and all reasonable inferences that may be

drawn from it in the light most favorable to the non-moving party. Hines v.

Garrett, 04-806 (La. 6/25/04), 876 So.2d 764. If the mover will not bear the

burden of proof at trial on the matter, then he must only present evidence showing

a lack of factual support for one or more essential elements to the non-mover’s

case. La.Code Civ.P. art. 966(C)(2); Simien v. Med. Protective Co., 08-1185

(La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La. 10/2/09), 18

So.3d 117. Once the mover has made a prima facie case that the motion should be

granted, the non-mover must then present evidence sufficient to show a genuine

3 issue of material fact. Id. If the non-mover fails to present some evidence that he

might be able to meet his burden of proof at trial, the motion should be granted.

Id.

Defendant’s Motion for Summary Judgment

The trial court granted the defendants’ motion for summary judgment

on the grounds that the plaintiffs failed to establish the essential element of duty to

support their negligence claims. The determination of whether a duty exists is a

question of law that may be properly decided by summary judgment. Seaman v.

Howard, 98-1492 (La.App. 3 Cir. 6/2/99), 743 So.2d 694, writ denied, 99-1901

(La. 10/29/99), 748 So.2d 1165. In negligence claims against landowners or

custodians, the duty of care is “to discover any unreasonably dangerous condition

or use of [the controlled] premises and either correct the condition or warn of its

existence.” Collins v. Whitaker, 29,324, p. 3 (La.App. 2 Cir. 4/2/97), 691 So.2d

820, 823. It follows that in order to impose a duty on landowners or custodians,

there must be a defect or unreasonable risk of harm on the premises. The second

circuit has provided guidance on determining what constitutes an unreasonable risk

of harm:

When determining whether a risk is unreasonable, a court is to balance the likelihood and magnitude of the harm and the utility of the thing, while also taking into account a broad range of social, moral, and economic factors including the cost to the defendant of avoiding the risk and the social utility of the plaintiff’s conduct when the accident occurred. Justice and social utility are guideposts, with consideration given to individual and societal rights and obligations.

Wiley v. Sanders, 37,077, p. 3 (La.App. 2 Cir. 6/13/03), 850 So.2d 771, 774, writ

denied, 03-1986 (La. 10/31/03), 857 So.2d 487 (citations omitted).

4 If no unreasonable risk of harm exists, then the landowner or custodian owes a

duty of care of a reasonable man, which amounts to “a duty to act as a reasonable

man and to guard against unreasonable risks of injury to guests.” Id. at 777; see

also St. Hill v. Tabor, 542 So.2d 499 (La.1989).

The Wiley court further held that in a drowning case involving a pond

on a property owner’s land, the pond did not constitute an unreasonable risk of

harm, and thus, the property owner did now owe a duty of care to the drowning

victim. The court reasoned that while the pond was murky and did not have any

markers or warnings regarding pond depths or any fencing, “[t]he only danger

presented by the pond was that it contained water” and “[s]uch a danger would

have been open and obvious.” Wiley, 850 So.2d at 776.

Here, while defendants had garde over the pond, the only potential

danger was the presence of murky water giving rise to undefined depths.

Following the reasoning of the Wiley court, these are open and obvious dangers

that do not constitute unreasonable risks of harm. As such, the defendants did not

owe a duty to warn against such hazards.

Since the pond did not constitute an unreasonable risk of harm, the

question now becomes whether the defendants breached a duty to act reasonably.

“The test to determine whether a breach of a landowner’s duty has occurred is

whether, in the management of his property, he has acted as a reasonable man in

view of the probability of injury to others.” Id. at 777; see also Shelton v. Aetna

Cas. and Sur. Co., 334 So.2d 406 (La.1976). Here, there is no evidence to support

the claim that the defendants breached a duty to act reasonably. While there is

evidence to suggest the drowning victims were below average intelligence to

potentially deduce the dangers of the pond, these facts are not material as the

5 defendants were not acquainted with these minors and would not reasonably expect

them to trespass and swim in the pond without supervision. The defendants were

not home during the incident and had no knowledge that Blake Palmer would visit

the property or bring other minors with him. To charge the defendants with the

burden of guarding against every potential individual of varying intelligence

trespassing and drowning goes beyond reasonable levels of justice and social

utility.

The plaintiffs further cannot recover under the theory that the

defendants failed to guard against an attractive nuisance in the pond. A body of

water does not constitute an attractive nuisance “where the danger is not hidden or

concealed and there are no unusual circumstances which render [the body of water]

peculiarly attractive to young children.” Slaughter v. Gravity Drainage Dist. No.

4, 145 So.2d 50, 55 (La.App. 3 Cir. 1962). Without such unusual circumstances, a

landowner has no duty to protect against the danger and “has the right to presume

that for every child under the age of discretion, there is someone of mature

judgment on whom rests the special duty and responsibility for the safety of the

child.” Id. As discussed above, the plaintiffs have presented no evidence

indicating that the pond possessed any unusual condition rendering it peculiarly

attractive to children. As such, the pond did not constitute an attractive nuisance.

Finally, plaintiffs assert that the defendants breached a duty to notify

the mother of Blake Palmer that Blake repeatedly trespassed on their property. We

are unable to identify any codal, statutory, or jurisprudential authority to support

such a duty or burden.

6 Given the evidence presented, the plaintiffs have failed to show that

there is a genuine issue of material fact upon which they could conceivably

succeed at trial. As such, we affirm the trial court’s granting of defendants’ motion

for summary judgment.

IV.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of the

defendants’ motion for summary judgment. Costs of the appeal are assessed to the

appellants, Robert Brooks and Jennifer Chavis.