Marco Buckley, as the Representative of the Minor J.B. v. Tangipahoa Parish School System

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0668
g

MARCO BUCKLEY, AS THE REPRESENTATIVE OF THE MINOR J. B.

VERSUS

TANGIPAHOA PARISH SCHOOL SYSTEM

Judgment rendered: FEB 01 2021

On Appeal from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
No. 2019- 0002546, Div. " F"

The Honorable Elizabeth P. Wolfe, Judge Presiding

Parker Hutchinson Attorneys for Plaintiff/Appellant
Ravi K. Sangisetty Marco Buckley
New Orleans, Louisiana

Christopher M. Moody Attorneys for Defendant/ Appellee
Albert D. Giraud Tangipahoa Parish School System
Hammond, Louisiana

BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.

HOLDRIDGE, J.

Plaintiff, Marco Buckley, appeals a judgment sustaining the peremptory

exception raising the objection of no cause of action and dismissing, with

prejudice, his claims against defendant, Tangipahoa Parish School System, for

injuries to his minor child from a teacher' s allegedly tortious actions. For the

reasons that follow, we reverse the judgment and remand this matter.

FACTUAL AND PROCEDURAL HISTORY

On August 20, 2019, Marco Buckley (" Buckley") filed suit on behalf of his

minor child, J. B., seeking to recover damages from Tangipahoa Parish School

System (" TPSS"). The facts, as alleged by Buckley' s petition, are as follows.

TPSS employed Jeremy Owens as a teacher at Loranger High School for the 2018-

2019 school year. On the morning of February 6, 2019,' J.B. was a student in

Owens' s class when another student threw a bottle or cup in the classroom. Owens

apparently believed that J.B. threw the bottle or cup and told J.B. to pick it up. J.B.

responded by telling Owens that he did not throw the object and identifying the

student who threw the object. Owens then disputed J. B.' s response and told J.B. to

go outside."

While walking to the classroom door, which was closed, Owens pushed J.B.

from behind into the classroom door, causing J.B. to hit his head on the door. J.B.

then opened the door and Owens pushed him through the doorway. Owens then

told J. B. that he would " mess him up." J. B. was not permitted to see a nurse or

other health care provider at the school, nor was he permitted to contact his parents

for hours. When J.B.' s parents were eventually notified of his injury, they brought

him to the emergency department at North Oaks Medical Center for treatment. He

was diagnosed with a concussion, which required treatment for several months.

1 The reference to February 6, 2016, in the petition appears to be a typographical error.

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Buckley alleged that Owens' s actions against J. B. constituted battery and

assault.
Regarding the battery claim, Buckley alleged that Owens intentionally

pushed J. B. into the door, causing his head to hit the door and J. B. to suffer a

concussion. Regarding the assault claim, Buckley alleged in the petition that

Owens told J.B. that he would " mess him up" after pushing him. Buckley further

alleged that this statement caused fear in the then -fifteen -year old J.B., who was a

first-year student at the school, for which he sought counseling and professional

treatment. Additionally, Buckley alleged that Owens' s intentional acts were rooted

in a disciplinary function and therefore were employment-related. As a result,

Buckley alleged that TPSS was vicariously liable for Owens' s intentional acts

causing J.B. injury.

Finally, Buckley alleged that TPSS acted negligently in hiring Owens. In

support of this allegation, Buckley alleged that TPSS owed a duty to its students to

protect them from adults with a propensity. for violence and violent threats toward

students, which it breached by employing and retaining Owens. Buckley claimed

that TPSS had actual or constructive knowledge of Owens' s propensity for

violence towards students based on multiple verbal altercations with and threats to

students at Loranger High School during the 2018- 2019 school year of which the

school principal and assistant principal were aware. Buckley also alleged that

Owens had a disciplinary history at Tangipahoa Alternative Solutions Program, a

school within TPSS where Owens had also worked.

TPSS responded to Buckley' s petition by filing a peremptory exception

raising the objection of no cause of action. Concerning the battery and assault

claims in the petition, TPSS contended that it should not be vicariously liable

because Owens' s actions were intentional and not employment- related. As to the

negligent hiring claim in the petition, TPSS contended that it was immune from

liability pursuant to La. R.S. 9: 2798. 1, which provides immunity to governmental
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agencies for discretionary acts within the course and scope of its lawful powers and

duties.

The trial court heard the matter and granted TPSS' s peremptory exception

raising the objection of no cause of action. The trial court signed a judgment on

November 25, 2019, wherein it dismissed Buckley' s suit with prejudice based on

its grant of the peremptory exception raising the objection of no cause of action.

From this judgment, Buckley has appealed.

LAW AND DISCUSSION

The function of an exception of no cause of action is to test the legal

sufficiency of the petition by determining whether the law affords a remedy on the

facts alleged in the pleading. Reyer v. Milton Homes, LLC, 2018- 0580 ( La. App.

1 Cir. 2/ 25/ 19), 272 So. 3d 604, 607. The burden of demonstrating that the petition

states no cause of action is upon the mover. Id. Peremptory exceptions raising the

objection of no cause of action present legal questions, which are reviewed using

the de novo standard of review. Id. The court reviews the petition and accepts

well -pleaded allegations of fact as true. Id. Notably, however, conclusions of law

asserted as facts are not considered well -pled allegations of fact, and the

correctness of those conclusions is not conceded. Hooks v. Treasurer, 2006- 0541

La. App. 1 Cir. 5/ 4/ 07), 961 So.2d 425, 429, writ denied, 2007- 1788 ( La.

11/ 9/ 07), 967 So. 2d 507. No evidence may be introduced at any time to support or

controvert the objection that the petition fails to state a cause of action. La. C. C. P.

art. 931.

A petition should not be dismissed for failure to state a cause of action

unless it appears beyond doubt that the plaintiff cannot prove any set of facts in

support of any claim which would entitle him to relief, the question therefore is

whether, in the light most favorable to plaintiff, and with every doubt resolved in

his behalf, the petition states any valid cause of action for relief. Collins v. State

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ex rel. Department of Natural Resources, 2012- 1031 ( La. App. 1 Cir. 5/ 30/ 13),

118 So. 3d 43, 46.

On appeal, Buckley contends that the trial court erred in sustaining the

peremptory objection raising the exception of no cause of action as to his

intentional torts claims and his negligent hiring claim. As to Buckley' s intentional

torts claims, they are premised on his contention that TPSS is vicariously liable for

the intentionally tortious actions of its teacher -employee, Owens. Louisiana Civil

Code article 2320 provides that employers are answerable for the damage

occasioned by their servants and overseers, in the exercise of functions in which

they are employed. Concerning the battery and assault claims, TPSS contends that

it should not be vicariously liable because Owens' s actions were intentional and

not employment- related.

The Louisiana Supreme Court has adopted a four -factor standard in

determining an employer' s vicarious liability for an employee' s intentional torts.

See Baumeister v. Plunkett, 95- 2270 ( La. 5/ 21/ 96), 673 So. 2d 994, 996- 97

relying on Lebrane v. Lewis, 292 So.2d 216, 218 ( La. 1974)). The four factors

are as follows: ( 1) whether the tortious act was primarily employment -rooted; ( 2)

whether the violence was reasonably incidental to the performance of the

employee' s duties; ( 3) whether the act occurred on the employer' s premises; and

4) whether it occurred during the hours of employment. Baumeister, 673 So. 2d

at 996- 97. Although all four factors are not required for vicarious liability, an

employer is not vicariously liable merely because his employee commits an

intentional tort on the employer' s premises during working hours. Id. at 997. In

the present case, the third and fourth factors are satisfied because Owens

committed the acts against J. B. at the school, his place of employment, during

school hours. Therefore, in order to state a valid cause of action against TPSS for

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vicarious liability of Owens' s intentional torts, Buckley must be able to prove

either the first or second Lebrane factor.

Baumeister contains further language that is helpful in this analysis,

providing that employment -rooted conduct should be contrasted from conduct that

is motivated by purely personal considerations entirely extraneous to the

employer' s interest. Baumeister, 673 So. 2d at 997. Louisiana courts have held

disputes that turned violent to be employment -rooted when they involved: an

employee' s refusal to perform his duties, see Menson v. Taylor, 2002- 1457 ( La.

App. 1 Cir. 6/ 27/ 03), 849 So. 2d 836, 841; a manager' s discipline and termination

of her subordinate, see Cowart v. Lakewood Quarters Ltd. Partnership, 2006-

1530 ( La. App. 1 Cir. 5/ 4/ 07), 961 So. 2d 1212, 1215; an employee' s complaints

about the quality of a co -employee' s work, see Garcia v. Furnace and Tube

Service, Inc., 40,517 ( La. App. 2 Cir. 1/ 27/ 06), 921 So. 2d 205, 211; and whether

to close a workplace door to maintain a comfortable temperature, see Benoit v.

Capitol Manufacturing Co., 617 So. 2d 477, 477- 78 ( La. 1993). In each of these

cases, the court noted that the disputes were employment-related as opposed to

stemming from personal disputes outside the workplace that merely culminated in

the workplace.

Additionally, La. R.S. 17: 416( A) provides for the discipline of students as

follows, in pertinent part:

1)( a) Every teacher and other school employee shall endeavor
to hold every student to a strict accountability for any disorderly
conduct in school or on the playgrounds of the school, on the street or
road while going to or returning from school, on any school bus,
during intermission or recess, or at any school -sponsored activity or
function.

b)( i) Each teacher may take disciplinary action to correct a
student who disrupts normal classroom activities, who is disrespectful
to a teacher, who willfully disobeys a teacher, who uses abusive or
foul language directed at a teacher or another student, who engages in
bullying, who violates school rules, or who interferes with an orderly
education process.

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c)( i) When a student' s behavior prevents the orderly
instruction of other students or poses an immediate threat to the safety
or physical well being of any student or teacher, when a student
exhibits disrespectful behavior toward the teacher such as using foul
or abusive language or gestures directed at or threatening a student or
a teacher, when a student violates the school' s code of conduct, or
when a student exhibits other disruptive, dangerous, or unruly
behavior, including inappropriate physical contact, inappropriate
verbal conduct, sexual or other harassment,
bullying, throwing
objects, inciting other students to misbehave, or destroying property,
the teacher may have the student immediately removed from his
classroom and placed in the custody of the principal or his designee.

Further, La. R.S. 17: 416. 1 allows teachers to take further steps and use

physical force to discipline students in certain situations.' In the current case,

according to the petition, Owens took action to correct the perceived disruptive

behavior of J. B. As a teacher, Owens has statutory authorization to take

disciplinary action against disruptive students. TPSS in its brief focuses on

Owens' s alleged actions in pushing J.B., but it neglects to mention what allegedly

precipitated those actions, that is, J. B.' s denial that he had thrown a bottle or cup in

the classroom and his failure to obey Owens' s instruction that he pick up the bottle

or cup. Therefore, accepting the facts alleged in the petition as true, Buckley has

stated a cause of action against TPSS for vicarious liability of Owens' s intentional

2 Louisiana Revised Statutes 17: 416. 1 provides, in pertinent part:

A. In addition to the specific disciplinary measures authorized in R.S.
17: 416 teachers, principals, and administrators of the public schools may, subject
to any rules as may be adopted by the parish or city school board, employ other
reasonable disciplinary and corrective measures to maintain order in the schools;
provided, however, that nothing in this Section shall be construed as superseding
the provisions of R.S. 17: 416 relative to the disciplining of students, suspensions,
and expulsions.

B.] ( 2) The governing authority of a public elementary or secondary
school shall have discretion with respect to the use of corporal punishment;
however, no form of corporal punishment shall be administered to a student with
an exceptionality, excluding gifted and talented, as defined in R.S. 17: 1942 or to a
student who has been determined to be eligible for services under Section 504 of
the Rehabilitation Act of 1973 and has an Individual Accommodation Plan. Each
governing authority of a public elementary or secondary school shall adopt such
rules and regulations as it deems necessary to implement and control any form of
corporal punishment in the schools under its jurisdiction.

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torts because they were employment-related; the district court erred in sustaining

the peremptory exception raising the objection of no cause of action as to this

claim.

As to Buckley' s claim against TPSS for negligent hiring, he contends that

the district court erred in granting the peremptory exception raising the objection

of no cause of action regarding this claim. TPSS argues that there is no set of facts

under which Buckley can state a valid cause of action because of the discretionary

acts immunity set forth in La. R.S. 9: 2798. 1. Buckley contends that TPSS' s

knowledge of Owens' s violent history was enough to overcome the discretionary

acts immunity under La. R.S. 9: 2798. 1.

Louisiana Revised Statutes 9: 2798. 1 states, in pertinent part:

B. Liability shall not be imposed on public entities or their officers or
employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when
such acts are within the course and scope of their lawful powers and
duties.

C. The provisions of Subsection B of this Section are not applicable:

1) To acts or omissions which are not reasonably related to the
legitimate governmental objective for which the policymaking or
discretionary power exists; or
2) To acts or omissions which constitute criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct.

Discretionary immunity of a governmental agency will not apply when a specific

course of action is prescribed because the employee has no rightful option but to

adhere to the directive, but when discretion is involved, the court must then

determine whether that discretion is the kind shielded by the exception: one

grounded in social, economic, or political activity. Gleason v. Nuco, Inc., 99-

2954 ( La. App. 1 Cir. 12/ 22/ 00), 774 So. 2d 1240, 1242.

Louisiana Revised Statutes 17: 81( A)(3) provides that "[ e] ach local public

school board shall delegate authority for the hiring and placement of all school

personnel ... to the local school superintendent." Thus, school superintendents are

given discretionary power regarding the hiring and retention of school employees.

In Smith v. Lafayette Parish Sheriffs Department, the Lafayette Parish

Sheriff' s Department ( LPSD) contended it was protected under the discretionary

acts immunity of La. R.S. 9: 2798. 1 from a plaintiff' s negligent hiring claims.

Smith v. Lafayette Parish Sheriffs Department, 2003- 517 ( La. App. 3 Cir.

4/ 21/ 04), 874 So. 2d 863, 865, writ denied, 2004- 1886 ( La. 10/ 29/ 04), 885 So.2d

595. The plaintiff filed suit against LPSD and a former deputy and sheriff of

LPSD seeking damages arising from a rape committed by the former deputy. Id.

at 864. The sheriff had adopted a hiring and retention policy requiring criminal

background checks, previous employment checks, review of employee records for

then -current LPSD employees, and interviews of LPSD personnel. Id. at 867.

Smith argued that the hiring policy should have also included polygraph and

psychological examinations, which she asserted were standard practice for law

enforcement agencies. Id.

In affirming the trial court' s grant of LPSD' s motion for summary judgment,

the Smith court held:

The Sheriff) established a hiring/retention policy when he took
office which was within the course and scope of his lawful powers
and duties. LPSD followed the policy when [ the former deputy]
applied to retain his position with LPSD. No statutes, regulations, or
other legal requirements directed the hiring of law enforcement
employees. Therefore, [ the Sheriff' s] hiring/retention policy was a

discretionary act, and liability cannot be imposed on LPSD for its
application of the policy.

Id. at 868 ( emphasis added).

Similarly, in this case, TPSS' s decision to hire and retain Owens was a

discretionary act.

In order to overcome the discretionary acts immunity, the plaintiff must

prove the acts or omissions of TPSS were criminal, fraudulent, malicious,

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intentional, willful, outrageous, reckless, or flagrant misconduct. See La. R.S.

9: 2798. 1( C)( 2). Only the most egregious conduct by agents, employees, or

representatives of public agencies that exhibits an active desire to cause harm, or a

callous indifference to the risk of potential harm from flagrantly bad conduct, will

rise to the level of "willful misconduct" or " criminal, willful, outrageous, reckless,

or flagrant misconduct" resulting in a forfeiture of all the immunity protections

afforded by the discretionary acts immunity statute. Haab v. East Bank Consol.

Special Service Fire Protection Dist. of Jefferson Parish, 2013- 954 ( La. App. 5

Cir. 5/ 28/ 14), 139 So. 3d 1174, 1182, writ denied, 2014- 1581 ( La. 10/ 24/ 14), 151

So. 3d 609.

According to the petition, TPSS had actual or constructive knowledge of

Owens' s disciplinary history at one school and multiple verbal altercations and

threats to students at the school where the incident occurred. Buckley' s petition

did not allege any factual, non -conclusory statements indicating TPSS' s conduct

was " criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or

flagrant." See La. R.S. 9: 2798. 1( C)( 2). As such, Buckley failed to state a cause of

action against TPSS for negligent hiring and the trial court did not err in sustaining

the exception of no cause of action as to this claim.

Buckley contends that the trial court acted improperly in sustaining the

exception before sufficient discovery could be conducted. However, courts have

upheld the dismissal of a petition based on the peremptory exception raising the

objection of no cause of action pursuant to the discretionary acts immunity statute.

See Hanson v. Steven Caruso, Willow Creek, L.L.C., 2015- 449 ( La. App. 5 Cir.

12/ 23/ 15), 182 So. 3d 1187, 1191, writ denied sub. nom Hanson v. Caruso, 2016-

0134 ( La. 3/ 24/ 16), 190 So. 3d 1196; Anderson v. Bossier Parish Police Jury,

49,471 ( La. App. 2 Cir. 11/ 19/ 14), 153 So. 3d 550, 557, writ denied, 2014- 2664

La. 3/ 13/ 15), 161 So. 3d 640. Therefore, Buckley' s contention that the

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discretionary acts immunity statute was improperly considered on a peremptory

exception raising the objection of no cause of action is without merit.

Pursuant to La. C. C.P. art. 934, if a petition fails to state a cognizable cause

of action and the grounds for the objection can be removed by amendment, the

plaintiff should be allowed to amend his demand. On the other hand, where the

grounds for the objection cannot be removed by amendment, the trial court is not

required to allow amendment. La. C. C.P. art. 934. The decision to allow

amendment is within the sound discretion of the trial court. Didier v. Simmons,

2019- 1100 ( La. App. 1 Cir. 5/ 11/ 20), So -3d , writ denied, 2020-

00700 ( La. 9/ 29/ 20), 301 So. 3d 1162. In this case, the trial court did not provide

Buckley an opportunity to amend his petition. In Garza v. Delta Tau Delta

Fraternity National, 2006- 0698 ( La. App. 1 Cir. 3/ 28/ 07), 2007 WL 914875 * 1,

3, this court reversed the trial court' s judgment dismissing a petition pursuant to a

peremptory exception raising the objection of no cause of action based on the

discretionary acts immunity under La. R.S. 9: 2798. 1 when it determined that the

allegations in the plaintiff' s petition could constitute malicious, intentional, or

willful misconduct pursuant to La. R. S. 9: 2798. 1( C)( 2). In light of this court' s

decision in Garza, we are unable to say whether the objection pleaded by TPSS' s

peremptory exception raising the objection of no cause of action may be removed

by an amendment relative to Buckley' s negligent hiring claim. More information

and factual allegations about TPSS' s alleged knowledge of Owens' s alleged

altercations with and threats towards students is needed to make that

determination. Therefore, the portion of the judgment dismissing Buckley' s suit

with prejudice as to the negligent hiring claim is reversed and this matter is

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remanded to allow Buckley the opportunity to amend his petition in accordance

with La. C. C. P. art. 934. 3

CONCLUSION

For all of the above and foregoing reasons, the November 25, 2019

judgment dismissing Marco Buckley' s suit against Tangipahoa Parish School

System is reversed insofar as Buckley' s vicarious liability cause of action. The

judgment is affirmed insofar as its grant of the peremptory exception raising the

objection of no cause of action as to negligent hiring. We reverse that portion of

the judgment dismissing Buckley' s suit with prejudice and remand this matter to

the trial court to allow Buckley an opportunity to amend his petition, if possible, to

state a cause of action for negligent hiring against Tangipahoa Parish School

System and for further proceedings consistent with this opinion. All costs of this

appeal in the amount of $ 661. 00 are to be paid by the defendant/appellee,

Tangipahoa Parish School System.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

3 Because we are reversing the trial court' s judgment as to the vicarious liability claim and
allowing Buckley an opportunity to amend his petition as to the negligent hiring claim, we do not
reach the issue of whether a court has the authority to grant a partial exception of no cause of
action. We note that, in 1997, the legislature authorized a partial judgment that " sustains an
exception in part, as to one or more but less than all of the claims, demands, issues, or theories
against a party." La. C. C. P. art. 1915( B)( 1). ( Emphasis added.) " This amendment ... authorizes
a partial exception of no cause of action; importantly, the amendment provides certainty as to the
immediate appealability of such a judgment." Frank L. Maraist, Louisiana Civil Law Treatise;
Civil Procedure, Vol. I, § 6.7, p. 173 ( 2d ed. 2008).

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