Yvette David Pacaccio, Individually and as agent for Brendan Joseph David v. Steven P. Hoover, Melanie P. Hoover, Edwin Hoover, and Peggy Hoover

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2021 CA 1587

YVETTE DAVID PACACCIO, INDIVIDUALLY AND AS AGENT
FOR BRENDAN JOSEPH DAVID

VERSUS

STEVEN P. HOOVER, MELANIE P. HOOVER,
EDWIN HOOVER, AND PEGGY HOOVER

Judgment Rendered:
rAUG 0 2 2022

On Appeal from the
21 st Judicial District Court
Parish of Tangipahoa, State of Louisiana
Trial Court No. 2020- 0001195

The Honorable Brian K. Abels, Judge Presiding

Craig J. Robichaux Attorneys for Plaintiffs -Appellants,
Mandeville, Louisiana Yvette David Pacaccio, Individually
and and as Agent for Brendan Joseph David
Rachael P. Catalanotto
Covington, Louisiana
and

Ron S. Macaluso
Hammond, Louisiana

Lance B. Williams Attorneys for Defendants -Appellees,
Reed S. Minkin Edwin and Peggy Hoover
Covington, Louisiana

Nicole M. Boyer Attorney for Defendant -Appellee,
Metairie, Louisiana Republic Fire and Casualty
Insurance Company

BEFORE: McDONALD, LANIER, AND WOLFE, JJ.

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WOLFE, J.

This appeal arises out of a summary judgment granted in favor of

defendants/ appellees, Edwin and Peggy Hoover and their insurer, Republic Fire and

Casualty Insurance Company. For the following reasons, we affirm.

BACKGROUND

On May 22, 2019, Steven and Melanie Hoover hosted a high school

graduation party for their daughter, Anna Grace, around the pool area at their

residence in Hammond, Louisiana. Steven and Melanie' s home is located on a

portion of a gated 25 -acre family property where Steven' s parents, Edwin and Peggy,

also own a home. Steven and Melanie own two parcels on the property, one for their

house and one for Steven' s sister, Stacy' s house. Edwin and Peggy own the other

parcel where their house is located. There are no fences or visible property lines

between the parcels, and family members are free to go anywhere on the property,

which has a pond and lots of open space. Steven maintains the entire 25 -acres for

the family with equipment that he owns. Steven designed and built a concrete and

wooden crossover on his property, to ease crossing to and from grassy areas over a

driveway between his and his sister' s house. The crossover is near an area where

one of the guests attending the graduation party, Brendan Joseph David, had a tragic

accident while driving one of Steven and Melanie' s all -terrain vehicles ( ATVs)

during the party.

Edwin and Peggy attended their granddaughter' s graduation party, but they

did not help with organizing or supervising anything. Edwin and Peggy stayed at

the party for approximately one hour. Sometime after they left the party, another

guest who attended the party, Brennan Dornan, asked Steven if some of the guests

could ride the ATVs owned by Steven and Melanie. Steven gave them permission

and told them to be safe. Brennan and Brendan were some of the first ATV drivers;

both had previous experience with driving ATVs. Although helmets were available,

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neither of them wore one. All of the drivers/ riders scattered out over the property,

which did not have any designated trails for riding. The guests rode ATVs for about

one -and -a -half hours without incident. Brennan was on a separate ATV trailing

behind Brendan, who was driving fast, when he saw Brendan appear to lose control

of the ATV immediately after traversing the crossover. Brendan ran into a nearby

tree and was thrown off the ATV. Brendan suffered a serious head injury that left

him permanently disabled.

Brendan' s aunt and caregiver, Yvette David Pacaccio, individually and on

behalf of Brendan, filed a petition for damages against all of the property owners,

Steven and Melanie, Edwin and Peggy, and then later, added insurers. Early in the

litigation, Steven and Melanie, along with their insurers, Metropolitan Property and

Casualty Insurance Company and Scottsdale Insurance Company, settled with

Yvette and Brendan, and were dismissed from the lawsuit. However, Yvette and

Brendan reserved their claims against Edwin and Peggy and their insurer, Republic.

Edwin and Peggy filed a motion for summary judgment seeking dismissal of

all claims against them. They argued that they did not host, organize, or supervise

the graduation party; they did not own, control, or have custody of the ATV that

Brendan was riding; nor did they own, design, or maintain the parcel of property and

crossover area where Brendan' s accident occurred. Republic joined Edwin and

Peggy' s motion. Evidence submitted in support of the motion included the petition,

Edwin and Steven' s affidavits, and the affidavit of a land surveyor, Kelly McHugh,

with attachments consisting of photographs, a survey of the Hoover property, and a

plat map all showing that Steven and Melanie owned the property where Brendan' s

ATV accident occurred.

Yvette and Brendan opposed the motion for summary judgment, initially

arguing that they did not have an opportunity for adequate discovery, objecting to

the affidavits for lack of personal knowledge and conclusory statements, and

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containing expert opinion that exceeded the stated expertise. They also insisted that

the existence of ATV trails or paths on the Hoover property was a genuine issue of

material fact. Another issue they asserted was that Edwin was involved in designing,

building, and maintaining the alleged unreasonably dangerous and defective

crossover that caused Brendan to lose control of the ATV he was riding. In support

of their opposition, Yvette and Brendan submitted the very same affidavits

referenced by Edwin and Peggy. They also submitted an affidavit by Bill Uhl and

his expert report regarding the alleged poorly designed crossover with photographs

showing a trail and Edwin' s name scrawled in the crossover concrete, which they

argued was proof that Edwin was involved with the creation of the crossover.

Additionally, Yvette and Brendan referenced factual inconsistencies revealed in the

deposition testimony of Edwin, Steven, and Steven' s daughters and wife, as well as

statements made by Brennan in an examination under oath.

Edwin and Peggy filed several supplemental memoranda in support of their

motion for summary judgment, with deposition and statement excerpts from

Brennan, Steven, and Edwin, and introducing a recreational use immunity defense.

Edwin and Peggy also filed a reply memorandum in support of their motion,

objecting to Bill Uhl' s affidavit and expert report as speculative and conclusory.

Yvette and Brendan filed objections to Edwin and Peggy' s supplemental memoranda

and evidence, moving to strike the attachments to those memoranda.

At the hearing on the motion for summary judgment, the trial court admitted

all of the evidence submitted —affidavits, depositions, Brennan' s examination under

oath, and discovery responses — but struck any reference to the recreational use

immunity defense. In oral reasons, the trial court explained that Bill Uhl' s affidavit

and attached report were admitted except for Uhl' s conclusion that Edwin' s name

scrawled in the concrete was an indication that Edwin had responsibility for the

crossover. The trial court granted summary judgment in favor of Edwin, Peggy, and

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Republic, dismissing all of Yvette and Brendan' s remaining claims. Yvette and

Brendan appeal, maintaining that this case requires detailed factual conclusions that

are not appropriate for summary judgment. They assign four errors: ( 1) the trial

court erred in granting the summary judgment; (2) the trial court abused its discretion

in failing to strike incompetent evidence and memoranda; ( 3) the trial court abused

its discretion in limiting discovery; and ( 4) the trial court erred in striking a portion

of Bill Uhl' s expert report.

STANDARD OF REVIEW

On appeal, appellate courts review the grant of a motion for summary

judgment de novo under the same criteria governing the trial court' s consideration

of whether summary judgment is appropriate. Jackson v. Wise, 2017- 1062 ( La.

App. 1st Cir. 4/ 13/ 18), 249 So. 3d 845, 850, writ denied, 2018- 0785 ( La. 9/ 21/ 18),

252 So. 3d 914. After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show there is no genuine issue as to material fact and that the mover is entitled to

judgment as a matter of law. La. Code Civ. P. art. 966( A)(3).

A " genuine issue" 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. Campbell v. Dolgencorp, LLC, 2019-

0036 ( La. App. 1 st Cir. 1/ 9/ 20), 294 So. 3d 522, 526. A fact is " material" when its

existence may be essential to the plaintiff' s cause of action under the applicable

theory of recovery and it potentially insures or precludes recovery, affects a litigant' s

ultimate success, or determines the outcome of the legal dispute. Primeaux v. Best

Western Plus Houma Inn, 2018- 0841 ( La. App. 1st Cir. 2/ 28/ 19), 274 So. 3d 20,

27. Because the applicable substantive law determines materiality, whether a

particular fact in dispute is material must be viewed in light of the substantive law

applicable to the case. Id.

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The burden of proof for summary judgment rests with the mover. La. Code

Civ. P. art. 966( D)( 1). But if the moving party will not bear the burden of proof at

trial on the issue before the court on the motion, the moving party' s burden is

satisfied by pointing out an absence of factual support for one or more elements

essential to the adverse party' s claim, action, or defense. Thereafter, the adverse

party must 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.

See Id.

LAW AND ANALYSIS

Initially, we address Yvette and Brendan' s argument that the trial court erred

in considering Edwin and Peggy' s improper affidavits and inadmissible evidence.

Yet Yvette and Brendan offer the exact same evidence in opposition to summary

judgment. They claimed that none of the sworn affidavits were based on personal

knowledge and are therefore inaccurate and unreliable. Louisiana Code of Civil

Procedure article 967( A) requires that supporting and opposing affidavits be made

on personal knowledge, setting forth facts that would be admissible in evidence, and

showing affirmatively that the affiant is competent to testify to the matters stated

therein.

A review of the affidavits reveal that each affiant stated observations made

from personal knowledge of the Hoover family property, the ATVs owned by Steven

and Melanie, the location of Brendan' s accident on a parcel of property owned by

Steven and Melanie, and the crossover built and maintained by Steven. Whether the

statements are accurate is not to be decided on a motion for summary judgment. The

trial court must assume that all of the affiants are credible. West v. Hornsby, 2020-

0871 ( La. App. 1st Cir. 2/ 25/ 21), 2021 WL 734027, * 4 ( unpublished). As to

relevancy, the affidavits focus on the ownership of the parcels of property and

location of Brendan' s accident, which is at the center of the litigation. Questions of

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relevancy and admissibility are discretionary rulings for the trial court. Id. We do

not find the trial court abused its discretion in admitting the evidence.

As for Yvette and Brendan' s assertion that the trial court improperly limited

discovery, we find no abuse of discretion. A motion for summary judgment may be

granted after an opportunity for " adequate" discovery, which has been construed to

mean that there is no absolute right to delay action on a motion for summary

judgment until discovery is complete. Rather, the requirement is only that the parties

have a fair opportunity to carry out discovery and to present their claim. See La.

Code Civ. P. art. 966( A)(3); Campbell, 294 So. 3d at 527. Yvette and Brendan' s

opposition to the motion for summary judgment was supported by affidavits,

discovery responses, depositions, an examination under oath, and an expert' s report

attached to an affidavit. We will not disturb the trial court' s broad discretion in

hearing the motion for summary judgment before further discovery was completed.

Primeaux, 274 So. 3d at 32.

Yvette and Brendan' s claims against Edwin and Peggy are based on premises

liability and the issue of whether Edwin and Peggy had custody or " garde" of the

allegedly defective crossover that precipitated Brendan' s loss of control while

driving the ATV. Louisiana Civil Code article 2317 provides that we are responsible

for damage caused by the things in our custody. This concept is understood with a

modification found in La. Civ. Code art. 2317. 1, concerning the condition of the

premises. The following elements must be proven by the plaintiff in a premises

liability case, that: ( 1) the defendant either owned or had care, custody, or control

of the thing in question; ( 2) the thing was a cause -in -fact of the plaintiffs injuries;

3) the thing presented an unreasonable risk of harm; and (4) the defendant had actual

or constructive knowledge of the risk. See Ordeneaux v. Arkel Food Servs.,

L.L.C., 2020- 1312 ( La. App. 1stCir. 6/4/ 21), 327 So. 3d 521, 527, writ denied, 2021-

00967 ( La. 10/ 19/ 21), 326 So. 3d 264. See also Baker v. Murphy Oil USA, Inc.,

VA

2001- 1299 ( La. App. 4th Cir. 4/ 10/ 02), 816 So. 2d 329, 332. Therefore, in order to

establish premise liability, Yvette and Brendan must first establish who had custody

or garde over the premises and the crossover located on the premises.

According to the summary judgment evidence, the crossover was designed,

built, and maintained by Steven and was located on Steven and Melanie' s parcel

within the 25 -acre Hoover family property. Edwin and Peggy argue that they are

not liable to a person injured by an alleged defect on adjacent property. As a general

principle, a landowner is usually not responsible for injuries that occur from defects

on adjacent property. Hammond v. Plaquemines Parish, 2007- 0782 ( La. App. 4th

Cir. 3/ 19/ 08), 982 So. 2d 204, 207. Additionally, ownership alone establishes the

requisite benefit, control and authority to find garde under most circumstances.

Greer v. Sportsman' s Hairadise, LLC, 2017- 0965 ( La. App. 1 st Cir. 3/ 9/ 18), 2018

WL 1249410, * 2 ( unpublished). However, the presumption of garde that is created

by ownership is rebuttable. Id. The concept of garde is broader than ownership,

and more than one party may have garde of a thing. See Dupree v. City of New

Orleans, 99- 3651 ( La. 8/ 31/ 00), 765 So. 2d 1002, 1009. Whether the law imposes a

duty of garde upon a party is a factual inquiry based upon the determination of what

benefit the party received from the thing, and what kind of direction and control the

party had over it. Greer, 2018 WL 1249410 at * 2.

Edwin and Peggy pointed out an absence of factual support for the essential

element of garde in Yvette and Brendan' s claim. Yvette and Brendan heavily rely

on a photograph of the crossover, properly authenticated and attached to depositions

and affidavits, which depicts Edwin' s name scrawled in the concrete. They argue

that the photograph is evidence that Edwin was involved in the design and/ or

creation of the defective crossover. However, Edwin explained that he usually

writes his name in wet concrete when it is poured on " pretty much any project"

anywhere on the Hoover family property. Additionally, Steven took full

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Edwin
responsibility for the design, building, and maintenance of the crossover.

admitted to using the crossover when driving on the property, but that was the extent

of his involvement with the crossover. These facts are undisputed.

Thus, we find that Yvette and Brendan' s argument that Edwin shared garde

of the crossover is conclusory and devoid of specific underlying facts to support a

conclusion of ultimate fact. Furthermore, the trial court did not err in refusing to

consider the portion of Uhl' s expert opinion speculating that Edwin' s name scrawled

in the crossover concrete was proof that Edwin was responsible for the crossover' s

condition. Our de novo review reveals that the opposing evidence is not legally

sufficient to defeat summary judgment. Mere conclusory allegations, improbable

inferences, and unsupported speculation will not support a finding of a genuine issue

of material fact. Ritchey v. State Farm Mutual Automotive Insurance Company,

2017- 0233 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d 272, 279.

Furthermore, because we base our holding on an absence of evidence to meet

the element of custody or garde in Yvette and Brandan' s burden of proof, we need

not consider whether the evidence created an issue of fact as to the existence of an

alleged hazardous condition on the Hoover family property. See Marrero v. I.

Manheim Auctions, Inc., 2020- 0878 ( La. App. 1st Cir. 2/ 19/ 21), 321 So. 3d 406,

411. The lack of support for one essential element of Yvette and Brandan' s claim is

insufficient to overcome the grant of summary judgment in favor of Edwin, Peggy,

and Republic. See La. Code Civ. P. art. 966( D)( 1).

CONCLUSION

For the reasons assigned, we affirm the judgment of the trial court granting

summary judgment in favor of Edwin and Peggy Hoover and Republic Fire and

Casualty Insurance Company, and dismissing all claims of Yvette David Pacaccio,

individually and as agent for Brendan Joseph David, with prejudice. All costs of

this appeal are assessed to Yvette David Pacaccio, individually and as agent for

Brendan Joseph David.

AFFIRMED.

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