Cherly Faye Jackson v. St Mary Parish Government

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT
All

2021 CA 1317

CHERYL FAYE JACKSON

VERSUS

ST. MARY PARISH GOVERNMENT

Judgment rendered: AUG 10 2022

On Appeal from the
Sixteenth Judicial District Court
In and for the Parish of St. Mary
State of Louisiana
No. 125, 250 —Division " C"

The Honorable Vincent J. Borne, Judge Presiding

Joslyn R. Alex Attorneys for Plaintiff/Appellant
Breaux Bridge, Louisiana Cheryl Faye Jackson
Alicia Johnson Butler
Jo Ann Nixon
New Iberia, Louisiana

David M. Thorguson Attorney for Defendant/Appellee
Morgan City, Louisiana St. Mary Parish Government

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

HOLDRIDGE, J.

The plaintiff appeals from the judgment granting the defendant' s motion for
summary judgment and dismissing her suit with prejudice.
Finding no error, we

affirm.

FACTS AND PROCEDURAL HISTORY

On October 5, 2012, Cheryl Faye Jackson, an employee ofthe St. Mary Parish
Sheriff (the Sheriff), filed suit against the St. Mary Parish Government ( the Parish)

seeking personal injury damages arising out of an incident on October 9, 2011, at

the St. Mary Parish Correctional Center ( the Jail).' According to Ms. Jackson' s

petition,
the incident injuring her occurred when she was trying to help other
deputies stop a fleeing inmate. She told the control booth operator for a gate at the

Jail to open the gate. As Ms. Jackson was going through the gate, it closed on her,

pinning her. Ms. Jackson was stuck in the gate for five to ten minutes before it was

opened.

In her petition, Ms. Jackson alleged that the Parish owned the building housing

the Jail and was therefore responsible for maintaining safe conditions on the

premises.
The Jail was on the seventh floor of the St. Mary Parish courthouse ( the

Courthouse). According to Ms. Jackson' s petition, the Parish was responsible for

the hazardous condition of the gate in negligence and/or strict liability. More

specifically, Ms. Jackson alleged that the accident resulted from the Parish' s fault

and/ or negligence in allowing a hazardous condition to exist, in failing to warn of

the hazardous condition, in failing to properly maintain the premises, and in failing

to provide the proper equipment to the tenants. She alleged that the Parish should

have had cameras, mirrors, monitoring devices, or a sensor that would open the gate

Although the petition spells Ms. Jackson' s first name as " Cherly," the correct spelling is " Cheryl" as shown by her
in forma pauperis affidavit. Additionally, Ms. Jackson alleged in her petition that she was employed by the " St. Mary
Parish Correctional Center" (" the Jail"), but she was actually employed by the St. Mary Parish Sheriff and working at
the Jail.

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if someone was caught in it. Ms. Jackson also alleged that the Parish should have

had actual or constructive notice of the defective condition of the gate.

The Parish answered the petition, denying all of the allegations, but admitting
that it owned the Courthouse. On March 22, 2021, the Parish filed a motion for

summary judgment supported by an affidavit. In its motion, the Parish contended

that, while it was responsible for the expenses of operating the Jail and maintaining
the prisoners, the Sheriff had the duty of actually operating the Jail and caring for
the prisoners, and therefore, it was not liable for Ms. Jackson' s injuries.

After a continuance of the hearing on the summary judgment motion at Ms.

Jackson' s request, she filed her opposition to the summary judgment motion on June

281 2021, with the Parish' s answers to her interrogatories attached to her

memorandum.
Prior to the summary judgment hearing, Ms. Jackson filed a motion

and order to amend her petition on June 28, 2021, and the court granted leave to

amend it on June 29, 2021. In her amending petition, Ms. Jackson alleged that the

Parish was responsible for the maintenance and repair of the condition of the Jail,

including the gates. She alleged that the Parish had knowledge that the cameras in

the jail were not working and that the mirrors were not in place to allow the operator

to monitor the gate. She alleged the Parish was aware of the need for the operator

to have a clear view of the gate and that it had a statutory responsibility to maintain

and make any repairs needed for the daily operation of the Jail. Ms. Jackson also

filed her affidavit in the record.

The court held a hearing on the motion for summary judgment on July 9, 2021.

The court signed a judgment granting the motion for summary judgment and

dismissing Ms. Jackson' s petition with prejudice on July 19, 2021. Ms. Jackson

appeals from the judgment.

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DISCUSSION

Summary Judgment

Appellate courts review the granting of summary judgment de novo using the
same criteria governing the trial court' s consideration of whether summary judgment
is appropriate, i.e., whether there is any genuine issue of material fact and whether

the mover is entitled to judgment as a matter of law. See La. C. C. P. art. 966( A)(3);

Turner v. Rabalais, 2017- 0741 ( La. App. 1 Cir. 12/ 21/ 17), 240 So. 3d 251, 255,

writ denied, 2018- 0123 ( La. 3/ 9/ 18), 237 So. 3d 1193.

The summary judgment procedure is expressly favored in the law and is

designed to secure the just, speedy, and inexpensive determination of non- domestic

civil actions. La. C. C. P. art. 966( A)( 2). The purpose of a motion for summary
judgment is to pierce the pleadings and to assess the proof in order to see whether

there is a genuine need for trial. Hines v. Garrett, 2004- 0806 ( La. 6/ 25/ 04), 876

So. 2d 764, 769 (per curiam). After an adequate opportunity for discovery, 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). The only documents that

may be filed in support of or in opposition to the motion are pleadings, memoranda,

affidavits, depositions, answers to interrogatories, certified medical records, written

stipulations, and admissions. La. C. C. P. art. 966( A)(4).

On a motion for summary judgment, the burden of proof is on the mover. If,

however, the mover will not bear the burden of proof at trial on the matter that is

before the court on the motion, the mover' s burden on the motion does not require

that all essential elements of the adverse party' s claim, action, or defense be negated.

Instead, after meeting its initial burden of showing that there are no genuine issues

of material fact, the mover may point out to the court that there is an absence of

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factual support for one or more elements essential to the adverse party' s claim,
action, or defense. Thereafter, summary judgment shall be granted unless the

adverse party can produce factual evidence 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).

The court may consider only those documents filed in support of or in

opposition to the motion for summary judgment and shall consider any documents
to which no objection is made. Any objection to a document shall be raised in a

timely filed opposition or reply memorandum. The court shall consider all

objections prior to rendering judgment. The court shall specifically state on the

record or in writing which documents, if any, it held to be inadmissible or declined

to consider. See La. C. C. P. art. 966( D)( 2).

Negligence and Strict Liability

In her assignment of error, Ms. Jackson argues that the trial court erred in

granting the Parish' s motion for summary judgment. In its oral reasons for

judgment, the trial court stated that the Parish was the owner of the building, but its

obligation was to provide the facility to the Sheriff who operated it. The court then

concluded that there was no genuine issue of material fact and that Ms. Jackson did

not present any proof that the Parish failed to maintain the building under La. R.S.

15: 702, that it had any knowledge of a defect under La. R.S. 9: 2800, or that it failed

to provide a good and sufficient jail under La. R.S. 15: 304 and 33: 4715.

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In its motion for summary judgment, the Parish initially relied on La. R.S.
33: 47152 and La. R.S. 15: 3 043 to support its contention that it was not liable because

it only had the duty to pay the expenses of operating the Jail and maintaining the
prisoners, whereas the Sheriff had the duty of actually operating the Jail and caring
for the prisoners, citing Amiss v. Dumas, 411 So. 2d 1137, 1141 ( La. App. 1 Cir.

1982), writ denied, 415 So. 2d 940 ( La. 1982).

This court in Amiss was reviewing a declaratory judgment action filed by the
sheriff against the City -Parish Council for the City of Baton Rouge and the Mayor -

President for the Parish of East Baton Rouge for a definition of the duties and

obligations of his office and that of the city parish council as to the operation of the
parish prison. 411 So. 2d at 1139. In Amiss, after considering several statutes,

including La. R.S. 33: 4715, 15: 304, and 15: 702, this court determined that the

responsibility for providing a jail in each parish rests with the police jury of that

2 Louisiana Revised Statutes 33: 4715 states:

The police jury of each parish shall provide a good and sufficient court -house,
with rooms for jurors, and a good and sufficient jail, at such place as they may
deem most convenient for the parish at large, provided that when the seat ofjustice
is established by law, they shall not have power to remove it.

Emphasis added.)

3 Louisiana Revised Statutes 15: 304 states, in pertinent part:

All expenses incurred in the different parishes of the state or in the city of New
Orleans by the arrest, confinement, and prosecution of persons accused or
convicted of crimes, their removal to prison, the pay of witnesses specifically
provided for by law, jurors and all prosecutorial expenses whatever attending
criminal proceedings shall be paid by the respective parishes in which the
offense charged may have been committed or by the city of New Orleans, as the
case may be. The expenses shall be paid by the parish treasurer or by the city of
New Orleans after an account of the expenses shall be duly certified to be correct
by the presiding judge and the clerk of court. The fees, salaries, and expenses to be
paid shall be fixed and regulated by the parish or city authority unless otherwise
provided by law; ...

Emphasis added.)

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parish, or, as in the case of East Baton Rouge, the City -Parish Council. 411 So. 2d

at 1140- 41. This court explained the statutory responsibilities as follows:

The general scheme which we gather from a reading of all of the
statutes is that the City -Parish is responsible for the expenses of
establishing, maintaining and operating the jail and for all the expenses
of feeding, clothing, and providing medical treatment to the prisoners
while the sheriff has the duty of operating the jail and seeing to it that
the prisoners are properly cared for, fed and clothed.

La. R.S. 15: 7024 places the responsibility for the physical
maintenance of all parish jails and prisons upon the governing authority
of each parish. No distinction is made therein between major and minor
repairs, major and minor appliances, the general responsibility of the
parish governing authority to maintain the prison and the supplies
necessary for daily routine maintenance. This statute, along with
La.R.S. 33: 4715, which requires that the governing authority provide a
good and sufficient jail",
mandates that the parish governing authority
is responsible for establishing and maintaining the parish prison which
includes all equipment and supplies necessary for the establishment and
proper maintenance of the jail.

Amiss, 411 So. 2d at 1141. ( Footnote added.)

In addition to its reliance on the statutes and the Amiss case concerning its

statutory obligations, the Parish in support of its motion for summary judgment

contended that it was not negligent because it complied with its statutory obligation

to fund the Jail and it had no duty to operate or maintain it, even as the owner of the

building where the Jail was located, citing Griffin v. Foti, 523 So. 2d 935 ( La. App.

4 Louisiana Revised Statutes 15: 702 provides:

The governing authority of each parish shall be responsible for the
physical maintenance of all parish jails and prisons. In those parishes in which
the governing authority operates the parish jail the governing authority shall pass
all bylaws and regulations they may deem expedient for the police and good
government of the jails and prisons being operated by the parish governing
authority.

Emphasis added.)

We also note that the court in Amiss referred to La. R.S. 15: 704, which states, in pertinent part,
Each sheriff shall be the keeper of the public jail of his parish, ..." 411 So.2d at 1140.

h

4 Cir. 1988), writ denied, 531 So. 2d 272 (La. 1988). In Griffin, an inmate in Orleans

Parish Prison slipped and fell in water standing outside the shower wall due to a gap
in the shower wall. In affirming the district court' s dismissal of the inmate' s

negligence claims against the City of New Orleans after trial on the merits, the

Fourth Circuit stated that to establish the City' s negligence, the evidence must show

that it had a duty to maintain the living area inside the prison. After reviewing La.

R.S. 33: 1435, 33: 4715, 15: 702, and Amiss, the court stated,

In this particular case, the only evidence suggesting a duty on the City' s
part is their stipulation that they own the building. There is no evidence
that they have ever inspected, maintained or provided personnel inside
the prison walls.
We therefore conclude that there is no duty on the
City to provide the actual daily maintenance of the interior of the prison.
Therefore, we find no negligence."

Griffin, 523 So. 2d at 938.

The Parish also contended in its motion that Ms. Jackson could not establish

factual support for the elements of her strict liability claim. Louisiana Revised

Statutes 9: 2800( A) provides, " A public entity is responsible under Civil Code Article

2317 for damages caused by the condition of buildings within its care and custody."
Louisiana Civil Code article 2317 provides:

We are responsible, not only for the damage occasioned by our
own act, but for that which is caused by the act of persons for whom we
are answerable, or of the things which we have in our custody. This,
however, is to be understood with the following modifications.

Louisiana Civil Code article 2322 provides:

The owner of a building is answerable for the damage occasioned
by its ruin, when this is caused by neglect to repair it, or when it is the
result of a vice or defect in its original construction. However, he is
answerable for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known of the vice or defect
which caused the damage, that the damage could have been prevented
by the exercise of reasonable care, and that he failed to exercise such
reasonable care. Nothing in this Article shall preclude the court from

the application of the doctrine of res ipsa loquitur in an appropriate case.

P

Louisiana Revised Statutes 9: 2800( C) states:

Except as provided for in Subsections A and B of this Section,
no person shall have a cause of action based solely upon liability
imposed under Civil Code Article 2317 against a public entity for
damages caused by the condition of things within its care and custody
unless the public entity had actual or constructive notice of the
particular vice or defect which caused the damage prior to the
occurrence, and the public entity has had a reasonable opportunity to
remedy the defect and has failed to do so.

Constructive notice shall mean the existence of facts which infer actual knowledge.

La. R. S. 9: 2800( D).

In this case, we must determine whether the Parish met its burden on its

motion for summary judgment of demonstrating that it complied with its statutory
obligations regarding the Jail. See La. C. C. P. art. 966( D)( 1). If there is a genuine

issue of material fact as to the Parish' s liability, then it is not entitled to summary
judgment dismissing Ms. Jackson' s suit.

Summary Judgment Evidence

In conducting our de novo review of the motion for summary judgment, we

will review the evidence submitted in support of and in opposition to the motion for

summary judgment.' In support of its motion for summary judgment, the Parish

attached the affidavit of Henry C. LaGrange, the Chief Administrative Officer of the

5 The Parish' s counsel at the summary judgment hearing " offer[ ed] and submit[ ed] everything
that' s been submitted on both sides in connection with the hearing...." After hearing argument,
the court stated, " I think the offerings —for purposes of the record, I think [ the Parish' s counsel]
offered the entire record and all [ Ms. Jackson' s] are in that offering." Ms. Jackson' s counsel noted
that Ms. Jackson' s affidavit was submitted in opposition to the summary judgment motion. No
objections were made to any of the documents submitted in support of or in opposition to the
summary judgment motion. We note that no documents or evidence in support of or in opposition
to a motion for summary judgment should be introduced at the hearing. See La. C. C. P. art. 966( B).
While we will consider all documents submitted by either party without objection in our
review of the motion for summary judgment, the unsworn or unverified documents submitted by
the parties in support of and in opposition to the motion for summary judgment have no evidentiary
value. See Cryer v. Tangi Pines Nursing Ctr., 2017- 0697 (La. App. 1 Cir. 12/ 21/ 17), 240 So. 3d
975, 979. A document that is not an affidavit or sworn to in any way, or is not certified or attached
to an affidavit, has no evidentiary value on a motion for summary judgment. Unifund CCR
Partners v. Perkins, 2012- 1851 ( La. App. 1 Cir. 9/ 25/ 13), 134 So. 3d 626, 632. Unsworn or
unverified documents, such as letters or reports, annexed to motions for summary judgment or to
the opposition to such motions are not self -proving and will not be considered, if objected to.
Attaching such documents to a motion for summary judgment or the opposition thereto does not
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Parish, Mr. LaGrange stated that as the Chief Administrative Officer, he had

personal knowledge of the expenses paid by the Parish for establishing and

maintaining the Parish jail facilities and of the expenses paid by the Parish for

feeding, clothing, transporting, and providing medical care to the prisoners housed

in the Parish jail facilities. Mr. LaGrange stated that in 2011, the Parish maintained

two jails, one of which was a 120 -bed facility located on the seventh floor of the

Courthouse in Franklin, Louisiana. According to Mr. LaGrange, all of the

individuals who worked at the parish jails were employed by the St. Mary Parish
sheriff. Mr. LaGrange stated that the Parish adopted annual budgets for the expenses

required to operate and maintain the jails and to feed, clothe, transport, and provide

medical care to the prisoners housed in the jails. Mr. LaGrange concluded his

affidavit with the statement that from January 2011 through December 2011, the

Parish paid approximately $ 1, 402, 777 to fund the operations and maintenance of the

Parish jails and to feed, clothe, transport, and provide medical care to prisoners

housed in the Parish jails.

Ms. Jackson filed her opposition to the summary judgment motion with the

Parish' s answers to her interrogatories attached to her memorandum. Among its

responses, the Parish stated that no Parish employees were present or worked in the

Jail when the incident happened and that all gate operators were employees of the

Sheriff.
The Parish stated that the gate operators were hired and trained by the
Sheriff.
The Parish also stated that the gate was installed in the Jail during
renovations which occurred from 2000 to 2002. The Parish stated " Routine

transform them into competent summary judgment evidence. See Bunge North America, Inc. v.
Board of Commerce & Industry and Louisiana Dept. of Economic Development, 2007- 1746
La. App. 1 Cir. 5/ 2/ 08), 991 So. 2d 511, 527, writ denied, 2008- 1594 ( La. 11/ 21/ 08), 996 So. 2d
1106.

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maintenance of the gate is performed by Parish employees. Dennis Rivette is the

Building Maintenance Supervisor...." Additionally, the Parish stated that " There

are no scheduled inspections of the gate. Routine maintenance is performed by
Parish employees." Lastly, the Parish responded, " Scheduled inspections of the gate

are not performed.
Additionally, the Parish does not maintain any documents when

it performs routine maintenance." When asked if an injury involving the gate had

ever occurred before and whether there had been any reports made indicating that
the gate' s design might be defective, the Parish responded negatively. The Parish

also stated that the gate operator was located twenty feet from the gate and the

operator' s line of sight depended upon how and where he was physically situated.

The Parish stated that no inmate had been injured by any gate in the facility.

Also attached to the Parish' s answers to Ms. Jackson' s interrogatories were

two documents entitled, " ST MARY PARISH JAIL INCIDENT REPORT." One

report was written by Ms. Jackson on October 9, 2011, describing the incident. The

other report was written by Deputy Connie Green on October 9, 2011, wherein she

stated, " I [opened] the gate for [Ms. Jackson] to go [ assist two other employees with

an inmate].... I ... closed the gate and [ Ms. Jackson] hadn' t went through it and stated

her back was hurting [ due] to the gate closing on her." We note that these incident

reports were unsworn and unverified and therefore have no evidentiary value. See

footnote 5.

Ms. Jackson also filed her affidavit in the record on June 28, 2021. She

described the incident and stated that she observed after the accident that the gate

operator had no way to see her in the gate. Ms. Jackson said, "[ Ms. Green] told me

she was sorry and explained that she did not see me and she couldn' t see me, or hear

me trapped in the gate." She stated that:

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a few days after the incident the employees from [ the Parish] came to
the Jail] to observe the mechanism of the gate and placed a pillow in
the gate to see if the door would retract. ... [ E] ven though the pillow
was in the gate it still closed crushing the pillow in the same manner
that it crushed me.

Ms. Jackson stated in her affidavit that during the entire time she worked at the jail,

which was four years, no maintenance of the gate was done or scheduled. She also

stated that the cameras in the area near the gate were not operating.

Upon examining all of the evidence on the motion for summary judgment, we

conclude that, while the Parish owns the Jail, and the gate as a part of the Jail, the

Parish met its burden ofproving that it paid the expenses of operating the Jail. While

the Parish' s answers to Ms. Jackson' s interrogatories indicate that it did perform

routine maintenance of the gate, Ms. Jackson did not establish a ruinous condition

of the Jail or gate in question. According to the discovery responses Ms. Jackson

submitted, at the time of the incident, there were no parish employees working at the

Jail as it was operated exclusively by the Sheriff. Because operating the jails was

exclusively the province of the Sheriff, there was no evidence submitted by Ms.

Jackson that the Sheriff requested and that the Parish failed to install cameras,

sensors, or mirrors if they were needed. Moreover, Ms. Jackson put forth no

evidence to show that the Parish had knowledge about any defects or unreasonably

dangerous conditions in the gate ( if any existed) before the incident. Therefore, Ms.

Jackson did not satisfy her burden and the trial court did not err in granting the
Parish' s motion for summary judgment.

Additional Discovery

On appeal, Ms. Jackson contends that the court should not have granted the

motion for summary judgment because she needed more time to complete discovery.

Louisiana Code of Civil Procedure article 966 requires that parties have " an

opportunity for adequate discovery" before summary judgment is granted. The

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requirement is that adequate discovery be conducted, not that discovery be

completed. Law Offices of Lehman v. Rogers, 2021- 0682 ( La. App. 1 Cir.

12/ 22/ 21), So. 3d ( 2021 WL 6071600, * 3). There is no absolute right

to delay a motion for summary judgment until discovery is complete. Preston v.

Southern University Through Board of Supervisors of Southern University

Agricultural and Mechanical College, 2020- 0035 ( La. App. 1 Cir. 7/ 13/ 21), 328

So. 3d 1194, 1203.
The trial court has broad discretion when regulating pre-trial

discovery, which will not be disturbed on appeal absent a clear showing of abuse. It
is within the trial court' s discretion to render a summary judgment or require further

discovery. Campbell v. Dolgencorp, LLC, 2019- 0036 ( La. App. 1 Cir. 1/ 9/ 20),

294 So. 3d 522, 527.

In this case, the incident occurred on October 9, 2011; suit was filed on

October 5, 2012; the motion for summary judgment was filed on March 22, 2021

and initially set for hearing on May 11, 2021; and pursuant to Ms. Jackson' s motion

for continuance filed on April 26, 2021, the hearing was continued until July 9, 2021.

While Ms. Jackson asserted that outstanding discovery existed in her opposition

memorandum, she did not request a continuance at the hearing on the summary

judgment motion.b Given that the incident occurred nine years before the summary
judgment motion was filed, Ms. Jackson clearly had an opportunity for adequate

discovery before the motion for summary judgment was granted, and the trial court

did not abuse its discretion in rendering summary judgment rather than requiring
further discovery.

6 Also attached to Ms. Jackson' s opposition memorandum was a letter dated May 31, 2019, from
the Parish' s counsel to her counsel stating that he would like to schedule Ms. Jackson' s deposition
over the next several weeks. The Parish' s counsel also stated that he understood Ms. Jackson' s
counsel would like to take at least one deposition of a Parish employee. He added that he was
available for depositions during the weeks of July 15 and July 22, and asked for her to let him
know her availability. We note that the record does not contain any depositions and further note
that this unsworn and unverified letter has no evidentiary value. See footnote 5.

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CONCLUSION

For the foregoing reasons, the July 19, 2021 judgment of the trial court

granting the motion for summary judgment filed by St. Mary Parish Government

and dismissing the suit filed by Cheryl Faye Jackson with prejudice is affirmed. All

costs are assessed to Cheryl Jackson.

AFFIRMED.

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