Scott Loupe and Natalie Loupe, on behalf of their minor child, G.L. v. The Roman Catholic Church of the Diocese of Baton Rouge, St. George School, Jason Warren Murray and Caroline Beck Murray, Individually and on behalf of their minor child J.M.

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

DOCKET NUMBER
2022 CA 1151

SCOTT LOUPE AND NATALIE LOUPE, ON
BEHALF OF THEIR MINOR CHILD, G. L. 1

VERSUS

THE ROMAN CATHOLIC CHURCH OF THE DIOCESE OF
BATON ROUGE, ST. GEORGE SCHOOL, JASON WARREN
MURRAY AND CAROLINE BECK MURRAY, INDIVIDUALLY
AND ON BEHALF OF THEIR MINOR CHILD, J. M.

Judgment Rendered: MAY 0 9 2023

ON APPEAL FROM THE
19TH JUDICIAL DISTRICT COURT, DIVISION 26
EAST BATON ROUGE PARISH, LOUISIANA
STATE OF LOUISIANA
DOCKET NUMBER 677, 192

HONORABLE RICHARD " CHIP" MOORE, JUDGE PRESIDING

Lewis O. Unglesby Attorneys for Plaintiffs -Appellants
Lance C. Unglesby Scott Loupe and Natalie Loupe, on
Adrian M. Simm, Jr. behalf of their minor child, G. L.
Jamie F. Gontarek
Baton Rouge, Louisiana

Shane P. Landry
Denham Springs, Louisiana

Charles L. Chassaignac, IV Attorneys for Defendants -Appellees
J. Murphy Delaune Jason Warren Murray and Caroline
Baton Rouge, Louisiana Beck Murray

BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, 33.

1 We note the trial courts issuance of a protective order in this case making certain documents in the
record confidential. In this opinion, we use the initials of the minor children involved to protect and maintain
their privacy. . See Penton v. Castellano, 48, 433 ( La. App. 2 Cir. 10/ 23/ 13), 127 So -3d 944, writs denied,
13- 2687, 2725 ( La. 2/ 7/ 14), 131 5o. 3d 867, 869.

N1,jez [oMwrs gtsk.Pt

GREENE, J.

The parents of a five-year-old boy injured on a school playground appeal a

summary judgment dismissing their claims against the parents of the classmate who

allegedly caused their son' s injuries. After review, we affirm in part, reverse in part, and

remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

G. L. and J. M. were kindergarten classmates at St. George School in Baton Rouge,

Louisiana, for the 2017- 2018 school year. On December 11, 2017, G. L. and J. M. were

involved in a playground incident that resulted in the dislocation of G. L.' s left hip and his

confinement to a wheelchair for approximately three months. Scott and Natalie Loupe,

G. L.' s parents, filed a suit for damages, individually and on G. L.' s behalf, against: Jason

and Caroline Murray, J. M. s' parents; St. George School; and, the Roman Catholic Church

of the Diocese of Baton Rouge.

After the parties conducted discovery and all defendants answered the suit, the

Murrays fled a motion for summary judgment seeking dismissal of the Loupes' claims

against them. The Murrays also filed a cross claim against St. George School and the

Roman Catholic Church of the Diocese of Baton Rouge ( the School Defendants). Later,

the School Defendants filed their own motion for summary judgment seeking dismissal

of the Loupes' claims against them. The Loupes opposed both motions. The Murrays

and the School Defendants filed separate responses objecting to some of the Loupes'

opposition evidence. After a hearing, the trial court signed two judgments: ( 1) one

judgment dated April 20, 2022, excluding Exhibits A through H of the Loupes' opposition

evidence to the Murrays' motion for summary judgment, granting the Murrays' motion,

and dismissing the Loupes' claims against them; and, ( 2) a second judgment also dated

April 20, 2022, excluding Exhibits A through D of the Loupes' opposition evidence to the

School Defendants' motion for summary judgment, granting the School Defendants'

motion, and dismissing the Loupes' claims against them.

The Loupes appealed both judgments. In this appeal, we review the summary

judgment rendered in the Murrays' favor. Another panel of this Court has recently

affirmed in part, reversed in part, and remanded the summary judgment rendered in the

School Defendants' favor. See Loupe v. Roman Catholic Church of the !Diocese of Baton

Rouge, 22- 1153 ( La. App. 1 Cir. 4/ 14/ 23), So. 3d , 2023 WL 2947499.

ASSIGNMENTS OF ERROR

On appeal, the Loupes contend the trial court erred in granting summary judgment

in favor of the Murrays. In five assignments of error, the Loupes essentially argue the

trial court erred: by excluding two of their summary judgment opposition exhibits; in

granting summary judgment on issues the Murrays did not raise in support of their

motion; in basing summary judgment on evidence that was irrelevant to finding the

Murrays liable under La. C. C. art. 2318; and, in granting summary judgment, because

there was competent evidence showing genuine issues of material fact regarding whether

I. M.' s conduct was intentional, or at least negligent; whether his conduct was

spontaneous; and, whether his parents had knowledge of his alleged behavioral problems

at school.

SUMMARY JUDGMENT

Appellate courts review the grant or denial of summary judgment de novo under

the same criteria governing the trial court's consideration of whether summary judgment

is appropriate. Jefferson v. Nichols State University, 19- 1137 ( La. App. 1 Cir. 5/ 11/ 20),

311 So. 3d 1083, 1085, writdenied, 20- 00779 ( La. 11/ 4/ 20), 303 So. 3d 623. A court shall

grant summary judgment if the pleadings, memorandum, and admissible supporting

documents show there is no genuine issue of material fact and that the mover is entitled

to judgment as a matter of law. See La. C. C. P. art. 966( A)( 3) and ( 4); Jefferson, 311

So. 3d at 1085.

The summary judgment movant maintains the burden of proof. La. C. C. P. art.

966( D)( 1). Nevertheless, if the movant will not bear the burden of proof at trial on the

issue before the court on the motion, his 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 he will be able to satisfy his evidentiary burden of proof at trial. If the adverse

party fails to meet this burden, there is no genuine issue of material fact, and, if

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appropriate, the court shall render summary judgment against him. La. C. C. P. arts.

966( D)( 1) and 967( 6).

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. 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 and shall specifically state on the

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

consider. La. C. C. P. art. 966( D)( 2) f May v. Carson, 21- 1156 ( La. App. 1 Cir. 8/ 2/ 22), 348

So. 3d 88, 91, writ denied, 22- 01394 ( La. 11/ 22/ 22), 350 So. 3d 497.

EXCLUSION OF EXHIBITS C AND D
OF THE LOUPES' SUMMARY IUDGMENT EVIDENCE

In their first assignment of error, the Loupes contend the trial court erred in

excluding their Exhibits C and D, which were filed with their memorandum in opposition

to the Murrays' motion for summary judgment. Exhibits C and D are email messages

sent by Lauren Keyser, a St. George School teacher, to Karla Prejean, the St. George

School disciplinarian. The trial court excluded these documents based on the Murrays"

timely filed objection, in which they argued the documents were not properly

authenticated. In this procedural posture, we review the trial court's ruling on the

objection under the abuse of discretion standard of review. See Pottinger v. Price, 19-

0183 ( La. App. 1 Cir. 10/ 23/ 19), 289 So. 3d 1047, 1053.

On appeal, the Loupes do not claim that they properly authenticated the

challenged documents. Rather, they argue that the trial court erred in excluding them,

because the School Defendants filed Ms. Keyser' s deposition with their memorandum in

opposition to the Murrays' motion for summary judgment and the two referenced

documents were attached to that deposition as exhibits. Our review of the record shows

that the School Defendants attached only an excerpt of Ms. Keyser's deposition to their

opposition memorandum; in that excerpt, there is no mention of the two referenced

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documents; and, the two documents are not attached to the deposition excerpt. Thus,

the Loupes have failed to show that their Exhibits C and D were properly filed into the

record, properly authenticated, or otherwise admissible for summary judgment purposes,

and the trial court did not abuse its discretion in excluding them. For purposes of our de

novo review, the Loupes' only admissible summary judgment evidence consists of the

depositions of G. L. and ]. M. This assignment of error has no merit.

PARENT LIABILITY FOR DAMAGE
CAUSED BY THEIR MINOR CHILD' S CONDUCT

In their remaining assignments of error, the Loupes essentially contend the trial

court erred in granting summary judgment against them, because the trial court relied

on irrelevant evidence, and because the evidence showed genuine issues of material fact

as to whether J. M.' s conduct resulting in G. L.' s injury was intentional, negligent,

spontaneous, and/ or known to his parents. Although we do not address each assignment

of error individually, this opinion disposes of all issues raised.

Because it is the applicable substantive law that determines materiality, whether

a particular fact in dispute is material for summary judgment purposes can be seen only

in light of the substantive law applicable to the case. Jefferson, 311 So. 3d at 1085.

Generally, a father and a mother are responsible for damage caused by their minor child

who lives with them. See La. C. C. arts. 225, 2317, and 2318. In Turner v. Bucher, 308

So. 2d 270, 277 ( La. 1975), the Supreme Court characterized a parent's liability under La.

C. C. art. 2318 as a legally -imposed strict liability, which is determined without regard to

whether the parent could or could not have prevented the child' s act, i.e., without regard

to the parent's negligence. In Loescher v. Parr, 324 So. 2d 441, 446- 47 ( La. 1975), the

Supreme Court further explained that La. C. C. art. 2318's strict liability is imposed on a

parent when his child' s conduct creates an unreasonable risk of injury to others, even

though the parent himself is not personally negligent, and the child is too young to be

personally negligent. Jones v. Cobb, 36, 724 ( La. App. 2 Cir. 12/ 30/ 02), 834 So. 2d 13,

15. A child may be of such tender age that he does not fully appreciate or discern the

dangerous consequences of his act. See Turner, 308 So. 2d at 277; Ryle v. Potter, 413

So. 2d 649, 651 ( La. App. 1 Cir. 1982). In Louisiana, courts generally consider the age of

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five years ( J. M.' s age on the day of the playground incident) below the age at which a

child is capable of such discernment. See Crawford, W., Vicariousresponsibility( including
animals), 12 La. Civ. L. Treatise, Tort Law, § 9: 2 ( 2d ed. August 22 Update); Marvin,

Charles A.,
Discerning the Parents Liability for the Harm Inflicted by a Nondiscerning
Child, 44 La. L. Rev. 1213, 1217 ( 1984). Thus, this strict liability is imposed on a parent

if his nondiscerning child's conduct was " sufficiently negligent, imprudent[,] and careless

to constitute civil negligence[,] if the child had been a person of discernment." Turner,

308 So. 2d at 277; Jones, 834 So. 2d at 15; Ryle, 413 So. 2d at 651. 2

There is no fixed rule for determining whether a child' s conduct creates an

unreasonable risk of harm. Relevant factors to be considered and weighed include: ( 1)

the claims and interests of the parties; ( 2) the probability of the risk occurring; ( 3) the

gravity of the consequences; ( 4) the burden of adequate precautions; ( 5) individual and

societal rights and obligations; and, ( 6) the social utility involved. Jones, 834 S0. 2d at

15, citing Dupree v. City of New Orleans, 99- 3651 ( La. 8/ 31/ 00), 765 So. 2d 1002, 1012.

The injured person must prove the non -discerning child' s conduct presented an

unreasonable risk of injury to another and that the damage resulted from the

unreasonable risk of injury. See Loescher, 324 So. 2d at 446- 47. Once this is proved, the

parent can escape liability only if he shows the injury was caused by the fault of the

2 In interpreting the strict liability standard imposed by La. C. C. art. 2318, the Louisiana Civil Law Treatise
contains the following jury instruction:

In this case, the activity in question is the fact that the defendant was the parent of the
minor child which allegedly caused harm to the plaintiff. The Civil Code, in Article 2318,
provides a standard applicable to this situation.

The father, and, the mother are responsible for the damage occasioned
by their minor child, who resides with them or who has been placed by
them under the care of other persons ... [.]

In interpreting this standard, our courts have considered first whether the child is under
the age of discernment, that is, whether the child is so young that he cannot understand
the reasonable consequences of his conduct. If you are convinced that this child was
under the age of discernment, but you believe that the child' s conduct was below the
standard of behavior that we would expect of an adult engaged in the same activity and
caused an undue risk of harm, you may nonetheless hold the parent of that child liable for
the damages which the child has caused.

If, on the other hand, you believe that the child' s conduct was not below the standard of
behavior that we would expect of an adult engaged in the same activity, then you must
return a verdict for the defendant parent.

18 La. Civ. L. Treatise, Civil 3ury Instructions § 7: 1 ( 3d ed.), Strict liability - Civil Code
Article 1318 - Children under age of discernment - Basic charge

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victim, by the fault of a third person, or by an irresistible force. Id. at 447. See also

Turner, 308 So. 2d at 277; Penton v. Castellano, 48, 433 ( La. App. 2 Cir. 10/ 23/ 13), 127

So. 3d 944, 947, writs denied, 13- 2687 ( La. 2/ 7/ 14), 131 So. 3d 867, 869; Ryle, 413 So. 2d

at 651. 3

After a de novo review of the admissible evidence, and based on the above

applicable law, we conclude the trial court erred in granting summary judgment to the
Murrays. Facts regarding whether J. M.' s conduct was intentional, negligent, and/ or

spontaneous, and his parents' knowledge of J. M.' s behavior, are relevant in determining

whether J. M.' s conduct on the day of the playground incident constituted an unreasonable

risk of injury to G. L. As explained below, we also conclude that the admissible summary

judgment evidence creates genuine issues of material fact as to these inquiries.

In support of their motion, the Murrays filed the depositions of G. L. and his mother,

Natalie Loupe. They argued that summary judgment was appropriate, because the

Loupes could not prove that J. M. committed a tort. They also argued that they were not

liable, because it was instead the School Defendants who were liable. In opposition, the

Loupes' admissible summary judgment evidence consisted of the depositions of G. L. and

In his deposition, G. L. testified that he was playing a game of tag with friends,

Caleb and Grayson, at recess, when J. M. joined the game. G. L. did not want to play with

J. M., because, earlier in the school year, J. M. had twisted his fingers more than once

when they were standing in line at school. Without telling the other students, G. L. quit

the game of tag and walked away. G. L. explained that, when he had reached a play set

and was about to climb a ladder, J. M. appeared, pushed G. L. from the side, G. L. fell to

the ground with one leg raised in the air, and then J. M. jumped on him. G. L. testified

that J. M. thought he was still playing the game and that J. M. jumped on him " on purpose."

3 On appeal, the Murrays also contend the trial court properly granted summary judgment in their favor,
because it is the School Defendants who are liable for G. L.' s injuries. As we earlier noted, the trial court
also granted summary judgment in the School Defendants' favor, and this Court recently affirmed in part,
reversed in part, and remanded that judgment. See Loupe v. Roman Catholic Church of the Diocese of
Baton Rouge, 22- 1153 ( La. App. 1 Cir. 4/ 14/ 23), So. 3d _,, 2023 WL 2947499.

IJ

Mrs. Loupe's deposition testimony corroborates G. L.' s testimony. She testified

that, before the playground incident, G. L. had repeatedly come home from school telling
her that J. M. was " being mean" to him by twisting his fingers. Mrs. Loupe instructed G. L.

not to play with J. M. Although she conceded that G. L. told her J. M. " came out of

nowhere" immediately before, she confirmed that G. L.' s version of the incident was that

J. M. intentionally pushed him down and jumped on him. Mrs. Loupe also testified that,

on a field trip in October 2017, she had personally seen J. M. being disruptive, not

following orders, and grabbing another child in an attempt to " bear hug" the child. She

further stated that, at a school function in early December 2017, J. M.' s mother told her

that she had met with J. M.' s teacher regarding J. M. frequently having to move his clip
down on a classroom behavior chart.

In contrast to the deposition testimony of G. L. and Mrs. Loupe, J. M. testified in his

deposition that he was playing with Caleb on the playground, Caleb asked G. L. if he

wanted to pay tag, G. L. said " yes," and then they all began the game, with J. M. being

designated as " it." J. M. indicated that he was certain that G. L. wanted to play tag.

According to J. M., he was chasing G. L. to tag him as " it," J. M. was running really fast,

G. L. stopped, and then J. M. ran into him, G. L. fell, and J. M. fell on top of him and hurt

him. J. M. indicated that the incident was an accident, and when asked if he fell on G. L.

on purpose," J. M. answered " no." J. M. admitted that when he was in kindergarten at

St. George School, he sometimes had to move his clip down on the classroom behavior

chart and had also gone to detention for not following directions. He denied ever

squeezing anyone's fingers.

A proper analysis of the Loupes' claims against the Murrays under La. C. C. art.

2318 requires consideration of the unreasonable risk of harm factors set forth above,

including a balancing of the risks involved in school playground games with the social

utility of such conduct. See Jones v. Cobb, 34, 926 ( La. App. 2 Cir. 8/ 22/ 01), 793 So. 2d

495, 499- 500. This inquiry requires weighing conflicting facts and inferences regarding

G. L. and J. M.' s relationship before the playground incident as well as the circumstances

of the game of tag in which they both participated. Id. At first glance, an injury resulting

from a game of tag on a school playground involving five-year- old boys may appear to

be a remote risk when balanced against the social utility of play. But, there is conflicting
testimony regarding whether J. M. had previously injured G. L. by twisting his fingers,

whether both boys were voluntarily participating in the game of tag, and whether J. M.' s

act of falling on G. L. was " on purpose" or accidental. Under Turner, these disputed facts

leave it unclear whether the activity causing the injury was an intentional tort, or,

alternatively, "' sufficiently negligent, imprudent, and careless to constitute civil

negligence[,]" if J. M. had been a person of discernment. See Turner, 308 So. 2d at 217;

Jones, 793 So. 2d at 500; Ryle, 413 So. 2d at 651. A fact finders' positive answer to either

inquiry could possibly result in the Murrays' liability under La. C. C. art. 2318. Accordingly,

summary judgment is not proper at this time.

CONCLUSION

For the foregoing reasons, based on our de novo review, we conclude the trial

court erred in granting summary judgment to the Murrays and dismissing the Loupes'

claims against them. We affirm the April 20, 2022 judgment insofar as it excluded the

Loupes' summary judgment opposition evidence, Exhibits A through H, from

consideration. We reverse the April 20, 2022 judgment on the merits and remand this

case to the trial court for further proceedings. We assess costs of this appeal to Jason

and Caroline Murray.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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