Zachary McCormick v. ABC Insurance Company, Tyler M. Smith, XYZ Insurance Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

ZACHARY McCORMICK

VERSUS

ABC INSURANCE COMPANY, TYLER M. SMITH, XYZ
INSURANCE COMPANY, ET AL,

DATE 4F JUDGMENT.• APR 17 2024

ON APPEAL FROM THE TWENTY- FIRST .JUDICIAL DISTRICT COURT
PARISH OF LIVINGSTON, STATE OF LOUISIANA
NUMBER 1. 74347, DIVISION A

HONORABLE JEFFREY S. JOHNSON, JUDGE

Jon M. Yeager Counsel for Plaintiff A
- ppellant
Anthony V. Lanasa, Jr. Zachary McCormick
Mark G. Tauzier
Metairie, Louisiana

Michael K. Melucci
Melissa M. Ha
Hammond, Louisiana

William H. Eckert Counsel for .Defendant -Appellee
Daniel G. Collarini Nicholas Wyatt Crawford
Nora E. Chapkovich
New Orleans, Louisiana

Michael J. Tarleton
Canton, Mississippi

William R. Pipes
Blaine T. Aydell
Baton Rouge, Louisiana

BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.

Disposition:. AFFIRMED.

Chutz, J.

Appellant, Zachary McCormick ( plaintiff), appeals a summary judgment

dismissing his claims against defendant, Nicholas Wyatt Crawford (defendant), for

damages he sustained from a battery committed by a third person while he was on

defendant' s property. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff and defendant were friends as a result of plaintiffs long-term

friendships with defendant' s son, Alex, and daughter, Ambria. Plaintiff and Ambria

dated each other on and off. Ambria also was involved at one time in a romantic

relationship with Tyler Smith ( Smith), who was the father of her son. Although

plaintiff and Smith previously were friends, their relationship became acrimonious

after plaintiff began dating Ambria. On two occasions prior to the incident in

question, defendant intervened to prevent a physical confrontation between plaintiff

and Smith when they encountered each other either on or departing from defendant' s

property.

On July 3, 2021, plaintiff was an invited guest at a seafood boil being held at

a camp owned by defendant in Killian, Louisiana. Plaintiff was outside on a deck

assisting defendant when he suddenly heard Ambria, who apparently had just

arrived, shout a warning to watch out. Plaintiff looked up and turned around to see

Smith about an arm' s length coming toward him swinging. After a few blows were

exchanged, Smith maneuvered plaintiff into a chokehold. They then both fell over

backward from the deck to the ground, a distance of approximately nine inches, with

Smith still holding plaintiff in a chokehold. The entire altercation occurred in a

matter of seconds. Plaintiff sustained serious injuries from the attack, including a

broken neck, which caused him to suffer temporary, partial paralysis. Smith

subsequently pled no contest to a charge of second-degree battery.

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On rune 9, 2022, plaintiff filed a petition for damages against defendant and

several other parties.' Plaintiff alleged defendant was negligent in failing to warn of

and/ or safeguard plaintiff against the foreseeable risk of harm from an attack by

Smith and failing to discover and safeguard plaintiff by installing a rail on the deck

to prevent the reasonably foreseeable risk of a fall therefrom. Defendant

subsequently filed a motion for summary judgment on the grounds he owed no duty

to plaintiffto protect him against an unforeseeable intentional criminal act by a third -

party and of which there was insufficient time to warn plaintiff. Defendant asserted

it was not reasonably foreseeable that Smith would appear at his camp while plaintiff

was there and assault him. Additionally, defendant alleged the lack of a railing did

not make the deck unreasonably dangerous and was not a cause -in -fact of plaintiff' s

injuries. He pointed out the actual cause ofplaintiff's fall was Smith' s assault rather

than the lack of a railing on the deck. Defendant further noted a railing was not

required by the International Residential Code (IRC), which is incorporated into the

Louisiana Administrative Code, since the deck was less than 30 inches above

ground. See 17 LAC § 107; IRC § 312. 1. 1..

Following a hearing, the district court granted defendant' s motion for

summary judgment and dismissed plaintiffs claims against defendant with

prejudice, reserving plaintiff' s rights as to any other parties. The district court

concluded there was no genuine issue of fact that defendant did not invite Smith to

his camp on the date of the incident and it was not reasonably foreseeable that Smith

would arrive at the camp on that particular date and attack plaintiff. Plaintiff now

appeals.

1 Plaintiff also named Smith, ASC Insurance Company ( Smith' s alleged insurer), and XYZ
Insurance Company ( Crawford' s alleged insurer) as defendants in this matter. However, the
summary judgment now before us was granted pursuant to a motion for summary judgment filed
only on defendant' s behalf. The other named defendants are not referenced in the summary
judgment and are not parties to this appeal.

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SUMMARY JUDGMENT STANDARD

A motion for summary judgment shall be granted only if the motion,

memorandum, and supporting documents admitted for purposes of the motion for

summary judgment 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).

Ritchey v State Farm Mutual Automotive Insurance Company, 17- 0233 ( La. App.

1st Cir. 9/ 15/ 17), 228 So. 3d 272, 275. The burden of proof rests with the mover.

La. C. C.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, if the adverse

party fails to produce factual evidence sufficient to establish the existence of a

genuine issue of material fact, the mover is entitled to summary judgment as a matter

of law. La. C. C.P. arts. 966( D)( 1); Yates v. Our Lady ofthe Angels Hospital, Inc.,

19- 0661 ( La. App. 1st Cir. 2/ 20/ 20), 2020 WL 862167, at * 2 ( unpublished).

1n ruling on a motion for summary judgment, the district court' s role is not to

make credibility determinations, evaluate the weight of the evidence or determine

the truth of the matter, but instead to determine whether there is a genuine issue of

triable fact. All doubts should be resolved in favor of the non-moving party.

Lambert Gravel Company, Inc, v. Parish of West Feliciana, 15- 1225 ( La. App. 1 st

Cir. 9120116), 234 So. 3d 889, 896. On appeal, appellate courts review the grant or

denial of a motion for summary judgment de novo under the same criteria governing

the district court' s consideration of whether summary judgment is appropriate.

Ritchey, 228 So. 3d at 275.

DISCUSSION

Plaintiff argues the district court legally erred in making factual findings

despite conflicting evidence and in making assumptions and drawing inferences in

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favor of defendant. Plaintiff further maintains it was legally inconsistent for the

district court to grant summary judgment in light of defendant' s failure to warn him

of the danger on his property when the court found " operative facts present" that

triggered a duty to warn.

A threshold issue in any negligence action is whether the defendant owed the

plaintiff a duty, which is a question of law. Blackledge v. Font, 06- 1092 ( La. App.

1 st Cir. 3/ 23/ 07), 960 So. 2d 99, 103. Absent a duty owed to the plaintiff, there is no

liability. See Blackledge, 960 So.2d at 102.

Under Louisiana jurisprudence, a homeowner is not an insurer of the safety

of persons lawfully on the premises. In general, the duty owed by a homeowner to

a social guest is to avoid reasonably foreseeable danger to the guest and to keep the

premises safe from hidden dangers in the nature of traps or pitfalls. Blackledge, 960

So. 2d at 103. Further, a homeowner generally has no duty to protect others from the

unanticipated or unforeseeable criminal acts of third persons. Only when the

homeowner has knowledge or can be imputed with knowledge of a third person' s

intended criminal conduct, and which is within the power of the homeowner to

protect against, does such a duty toward a guest arise. Thus, before a duty can be

imposed on the landowner, it must be determined whether the criminal act in

question was reasonably foreseeable. Blackledge, 960 So. 2d at 103.

In this case, plaintiff argues defendant had a duty to warn him he had invited

Smith to his camp because it was reasonably foreseeable Smith would attack him

given their acrimonious relationship and the prior confrontations occurring between

them in defendant' s presence. While defendant admitted he did not warn plaintiff

Smith might be at the camp on July 3, he denied either inviting Smith to the camp

or having any knowledge he would come to the camp on that date. In opposition,

plaintiff presented Smith' s denial of a discovery request for admission that he was

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not invited to defendant' s camp, which was denied by Smith. Additionally, in his

deposition, Smith described a phone conversation he had with defendant a few days

before the incident during which he asked defendant when he wanted Smith to bring

his flatboat to the camp. According to plaintiff, these exhibits created a genuine

issue of material fact regarding whether Smith was invited to the camp on the day of

the incident since defendant denied both inviting Smith to the camp or discussing

Smith bringing his boat there during their phone conversation.

Based on our de novo review, we find there is no genuine of fact that Smith

was not invited by defendant to his camp for July 3. As noted, defendant specifically

denied inviting Smith to the camp. In his deposition, Smith testified that prior to the

incident, he considered himself to have an " open invitation" to visit defendant' s

camp, and defendant did not tell him he was unwelcome there until after the incident.

Nevertheless, he admitted he was " not directly" invited to be at the camp for July 3,

defendant did not know he was coming that day, and he just showed up at the camp

unannounced not knowing if defendant was even there. As to his alleged discussion

with defendant about bringing his flatboat to the camp, which defendant denied,

Smith testified no particular time was agreed upon for him to do so. Thus, even if a

discussion about Smith bringing the flatboat to the camp did occur, there was no

reasonable basis for defendant to anticipate Smith would bring the flatboat to the

camp specifically on July 3. In fact, Smith admitted he did not even know if

defendant was at the camp on July 3, and he did not bring the flatboat with him to

2 Plaintiff also attached to his opposition memorandum a police report in which it was noted Smith
stated he was invited to defendant' s camp. Defendant objected to the police report in his reply
memorandum, arguing the unauthenticated police report was not competent summary judgment
evidence, and the district court sustained the objection. A police report that is not accompanied
by an affidavit or a deposition of the officer is not considered competent evidence in a summary
judgment proceeding. La. C. C.P. art. 967; Carias v. Laren, 14- 0655 ( La. App. 1 st Cir. 319115),
2015 WL 1019481, at * 4 ( unpublished), writ denied, 15- 0879 (La. 8! 28/ 15), 176 So. 3d 402; Lewis
v. Jabbar, 08- 1051 ( La. App. 1st Cir. 1112109), 5 So. 3d 250, 254- 55. Because the police report
was not authenticated or sworn to by affidavit or deposition of the officer and was timely objected
to by defendant, it lacks any evidentiary value in creating a genuine issue of material fact herein.
Lewis, 5 So. 3d at 254- 55.

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the camp. This evidence contradicts plaintiffs claim that Smith was invited to the

camp, as well as the suggestion that arrangements had been made for him to bring
his flatboat to the camp at a specific time or date, particularly sometime over the

July 4 weekend. Moreover, Smith' s testimony indicating that before the incident he
believed he had an " open invitation" to the camp explained and was consistent with

his denial of the discovery request that he admit he was not invited to the camp on

July 3.

Considering the evidence presented, we agree with the district court there is

no genuine issue of fact that it was not reasonably foreseeable Smith would arrive at

the camp uninvited on July 3 while plaintiff was there. A homeowner has no duty

to protect a guest against unforeseeable criminal acts by a third party. Blackledge,

960 So.2d at 103. Therefore, because defendant did not invite Smith to the camp

and it was not reasonably foreseeable he would arrive there unannounced on July 3,

defendant had no duty to warn plaintiff there was a possibility Smith might come to

the camp on July 3. In the absence of the breach of a duty owed to plaintiff,

defendant cannot be held liable for plaintiffs injuries. See Blackledge, 960 So.2d

at 102.

Further, we find no merit in plaintiff' s contention that genuine issues of fact

exist as to whether defendant breached his duty of care by failing to warn him of the

impeding attack once Smith arrived at the camp and in failing to prevent the attack.

The deposition testimony of plaintiff, defendant, and Smith are all consistent in

indicating the attack occurred almost immediately upon Smith' s arrival and so

quickly that defendant had no time to warn plaintiff once he became aware of

Smith' s arrival.

In his deposition, Smith testified defendant did not have time to tell him to

leave the camp before the " confirontation" with plaintiff because he was at the camp

only seconds before it occurred. Defendant testified he first saw Smith when

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plaintiff "hollered," after which he saw Smith moving toward plaintiff. He indicated

he had no time to warn plaintiff or to intervene because it was all over in three or

four seconds. Plaintiff offered no evidence refuting defendant' s testimony and

admitted he had " no idea" how much time elapsed between defendant first seeing

Smith and the attack on plaintiff. According to plaintiff, however, Smith attacked

him only a " split second" after he looked up and first saw Smith. Therefore, at most,

only seconds could have elapsed between when defendant heard plaintiff shout out

and Smith' s attack on plaintiff. The evidence presented clearly established there

was insufficient time for defendant to have warned plaintiff of the impeding attack

or to have intervened or prevented the attack, even if he had a duty to do so.

Based on our de nova review, we find defendant established a lack of factual

support for an essential element of plaintiffs negligence claims, which is that

defendant had a duty to warn of or protect plaintiff from the criminal attack

committed by Smith. Because plaintiff thereafter failed to produce factual evidence

sufficient to establish the existence of a genuine issue ofmaterial fact regarding this

issue, the district court properly granted summary judgment in favor of defendant.3

See La. C. C.P. art. 966( D)( 1).

CONCLUSION

For these reasons, the May 23, 2423 judgment of the district court dismissing

the claims of plaintiff, Zachary McCormick, against defendant, Nicholas Wyatt

3 In his petition for damages, plaintiff alleged defendant was also at fault because the lack of rails
on the camp' s deck created an unreasonably dangerous condition. On appeal, however, plaintiff
has raised no issue regarding the dismissal of this particular claim. Regardless, in support of his
motion for summary judgment, defendant presented excerpts from plaintiffs deposition in which
he acknowledged he was unaware of anything wrong with the deck and a photograph showing the
deck was only nine inches above ground. Defendant maintained there was no requirement for rails
on a deck less than thirty inches above grounds and, moreover, the risk of a guest being injured by
being dragged off a deck during a criminal battery while in a chokehold was not a risk within the
scope of any duty requiring rails on a deck. See 17 LAC § 107; IRC § 312. 1. 1. In opposition,
plaintiff failed to present any evidence showing the lack of rails in this case constituted an
unreasonably dangerous condition or was a cause of his injuries.

KJ

Crawford, with prejudice, is affirmed. All costs of this appeal are assessed to

plaintiff-appellant.

AFFIRMED.

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