Matthew Grady and Melicia Grady, individually and as representatives of the minor, Eleanor Grady v. Mia Nicole Ahles, Little People's Play Station, LLC, and Markel Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2024 CA 0244

MATTHEW GRADY AND MELICIA GRADY, INDIVIDUALLY
AND AS REPRESENTATIVES OF THE MINOR,
ELEANOR GRADY

VERSUS

MIA NICOLE AHLES, LITTLE PEOPLE' S PLAY STATION, LLC,
AND MARKEL INSURANCE COMPANY

JUDGMENT RENDERED:
DEC 2 0 2024

Appealed from the Nineteenth Judicial District Court
Parish of East Baton Rouge - State of Louisiana
Docket Number 702, 107 - Section 23

The Honorable Kelly Balfour, Presiding Judge

Gary P. Koederitz COUNSEL FOR APPELLANTS
Baton Rouge, Louisiana PLAINTIFFS— Matthew Grady and
Melicia Grady, individually and as
representatives of the minor, Eleanor
Grady

Ernest P. Gieger, Jr. COUNSEL FOR APPELLEES
Emily E. Eagan DEFENDANTS— Little People' s Play
Morgan A. Druhan Station, LLC; Wilshire Insurance
New Orleans, Louisiana Company; and Joida, LLC

BEFORE: MCCLENDON, WELCH, AND LANIER, JJ.

LANIER, J.

Plaintiffs, Matthew and Melicia Grady, individually and on behalf of their

minor child, Eleanor Grady, appeal the trial court' s judgment that granted summary

judgment in favor of Defendants, Little People' s Play Station, LLC, Joida, LLC, and

Wilshire Insurance Company, and dismissed Plaintiffs' claims against Defendants

with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs' son, Oliver, and their daughter, Eleanor, were enrolled in daycare

at Little People' s Play Station, LLC. The accident at issue occurred on June 4, 2020,

as Mr. Grady picked up his children from daycare. While Mr. Grady was loading

Oliver' s car seat into his vehicle, two-year- old Eleanor walked near a white 4 -

Runner that was parked in front of Mr. Grady' s vehicle. As the 4 -Runner began to

accelerate forward, the vehicle struck Eleanor, who suffered injuries.

Plaintiffs filed a petition for damages, as well as a first amended and

supplemental petition for damages, against the driver of the 4 -Runner ( Mia Ahles)

and her insurer ( GoAuto Insurance Company); Little People' s Play Station, LLC

the daycare); Joida, LLC ( owner and operator of the daycare); Markel Insurance

Company ( the daycare' s insurer); and Wilshire Insurance Company ( the daycare' s

insurer). Pertinent herein, Plaintiffs alleged that Little People' s Play Station, LLC

and Joida, LLC breached a duty of reasonable care; failed to warn Plaintiffs of the

hazardous conditions presented in the pick-up and drop- off areas of the daycare;

failed to supervise children in the pick-up and drop- off areas; failed to perform its

duties in a safe manner; failed to train its employees; failed to supervise its

employees; and other acts and omissions of fault and negligence to be proved at trial.

Little People' s Play Station, LLC, Joida, LLC, and Wilshire Insurance

Company ( collectively, " Defendants") filed a motion for summary judgment,

arguing that Plaintiffs could not meet their burden of proving that the daycare owed

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a duty of supervision over Eleanor at the time of the accident. Defendants argued

that per the daycare' s pick-up procedure— a copy of which was provided to Plaintiffs

and acknowledged as received by them— Mr. Grady parked in the outdoor drive in

front of the daycare, entered the daycare, signed his children out for the day,

retrieved the children from their respective classrooms, and walked the children back

outside to his vehicle to leave the premises. Defendants contended that at the time

of the accident, Eleanor was in the sole custody and supervision of her father in

accordance with the daycare' s pick-up procedure; therefore, the daycare no longer

owed a duty to supervise the child. Because the daycare no longer owed a duty to

supervise the minor child, Defendants argued there was no breach of the duty of

supervision. Additionally, Defendants argued " there was no breach of any duty by

the daycare], as they acted as a reasonable daycare under the circumstances."

Plaintiffs opposed Defendants' motion for summary judgment, arguing that

the daycare' s pick-up procedure did not provide any support for Defendants' claim

that minor children exit the daycare solely under their parents' custody and control.

Plaintiffs averred that the daycare owed the highest degree of care toward children

under its supervision. Plaintiffs further argued that even if Defendants did not have

a duty to supervise the loading and unloading of children into their parents' vehicles

in the parking lot, Defendants assumed that duty by sometimes having employees

present in the pick-up and drop- off areas of the parking lot on dates prior to the

accident at issue.

Following a hearing, the trial court granted Defendants' motion for summary
judgment, finding " no duty on behalf of the daycare. The trial court signed a

judgment in conformity with its ruling on November 28, 2023, which granted the

motion for summary judgment filed by Defendants; dismissed the claims brought by
Plaintiffs against Defendants with prejudice; and reserved Plaintiffs' causes of

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actions against other defendants. Plaintiffs now appeal,' assigning three errors to the

trial court' s judgment.'

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used when there is no

genuine issue of material fact for all or part of the relief prayed for by a litigant.

Murphy v. Savannah, 2018- 0991 ( La. 5/ 8/ 19), 282 So. 3d 1034, 1038. 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. C. C. P. art. 966( A)(3); Campbell v. Dolgencorp, LLC, 2019- 0036 ( La. App. 1

Cir. 1/ 9/ 20), 294 So.3d 522, 526. A summary judgment may be rendered or affirmed

only as to those issues set forth in the motion under consideration by the court at that

time. La. C. C.P. art. 966( F); Anderson v. Laborde Construction Industries,

L.L.C., 2018- 1583, 2019- 0356 ( La. App. 1 Cir. 3/ 12/ 20), 311 So. 3d 1072, 1080,

writ denied, 2020- 00924 ( La. 10/ 20/ 20), 303 So. 3d 307.

The burden of proof on a motion for summary judgment rests with the mover.

La. C. C. P. art. 966( D)( 1); Lucas v. Maison Insurance Co., 2021- 1401 ( La. App. 1

Cir. 12/ 22/ 22), 358 So. 3d 76, 84. Nevertheless, if the mover will not bear the burden

of proof at trial on the issue that is before the court on the motion for summary

judgment, the mover' s burden on the motion does not require him to negate all

essential elements of the adverse party' s claim, action, or defense. Instead, after

Plaintiffs filed a motion for devolutive appeal on January 3, 2024. The trial court signed an order
of appeal on January 5, 2024, notice of which was transmitted by the clerk of court to the parties
on January 9, 2024. In accordance with La. C. C. P. arts. 2127 and 2128, Plaintiffs designated
portions of the record to constitute the record on appeal. See Uniform Rules, Courts of Appeal,
Rules 2- 1 through 2- 1. 17. See also Bezet v. Original Library Joe' s, Inc., 2001- 1586, 2001- 1587
La. App. 1 Cir. 6/ 21/ 02), 835 So. 2d 472, 475.

2 First, Plaintiffs argue the trial court erred by determining that Defendants owed no duty to
Plaintiffs. Second, Plaintiffs contend that the trial court erred by failing to find that Defendants
voluntarily assumed a legal duty to Plaintiffs. Lastly, Plaintiffs aver that the trial court erred by
granting Defendants' motion for summary judgment despite the existence of genuine issues of
material fact.

L!

meeting his 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 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. See La. C. C. P.

art. 966( D)( 1); Lucas, 358 So. 3d at 84.

Appellate courts review the grant or denial of a motion for summary judgment

de novo using the same criteria applied by the trial courts to determine whether

summary judgment is appropriate. See Leet v. Hospital Service District No. 1 of

East Baton Rouge Parish, 2018- 1148 ( La. App. 1 Cr. 2/ 28/ 19), 274 So. 3d 583,

587. Thus, appellate courts ask the same questions: whether there is any genuine

issue of material fact and whether the mover is entitled to judgment as a matter of

law. Madden v. Fairburn, 2022- 1055 ( La. App. 1 Cr. 4/ 14/ 23), 365 So. 3d 811,

815. A " genuine" issue is a triable issue, which means an issue on which reasonable

persons could disagree. If on the state of the evidence, reasonable persons could

reach only one conclusion, there is no need for a trial on that issue. Madden, 365

So. 3d at 815.

In ruling on a motion for summary judgment, the court' s role is not to evaluate

the weight of the evidence or to make a credibility determination, but instead to

determine whether or not there is a genuine issue of material fact. Collins v.

Franciscan Missionaries of Our Lady Health System, Inc., 2019- 0577 ( La. App.

1 Cir. 2/ 21/ 20), 298 So. 3d 191, 194, writ denied, 2020- 00480 ( La. 6/ 22/ 20), 297

So.3d 773. Because it is the applicable substantive law that determines materiality,

whether a particular fact in dispute is material can be seen only in light of the

substantive law applicable to the case. Chapman v. Haynes, 2022- 0288 ( La. App.
1 Cir. 9/ 16/ 22), 352 So. 3d 1023, 1027.

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LAW AND DISCUSSION

Ne2li2ence

In an action to recover damages for injuries allegedly caused by another' s

negligence, a plaintiff has the burden of proving negligence on the part of the

defendant by a preponderance of the evidence. Broussard v. Voorhies, 2006- 2306

La. App. 1 Cir. 9/ 19/ 07), 970 So. 2d 1038, 1042, writ denied, 2007- 2052 ( La.

12/ 14/ 07), 970 So. 2d 535. Louisiana courts have adopted a duty -risk analysis in

determining whether to impose liability under general negligence principles.

Guilbeau Marine, Inc. v. Ledet, 2023- 0065 ( La. App. 1 Cir. 9/ 15/ 23), 375 So. 3d

9771 985 n. 10, writ denied, 2023- 01369 ( La. 12/ 19/ 23), 375 So.3d 411. For liability

to attach under a duty -risk analysis, a plaintiff must prove five separate elements:

1) the defendant had a duty to conform his conduct to a specific standard of care ( or

the defendant owed a duty of care to the plaintiff) (the duty element); ( 2) the

defendant failed to conform his conduct to the appropriate standard ( or breached the

requisite duty) ( the breach element); ( 3) the defendant' s substandard conduct was a

cause -in -fact of the harm or the plaintiff' s injuries ( the cause -in -fact element); ( 4)

the risk of harm was within the scope of protection afforded by the duty breached

the scope of the duty, scope of protection, or legal cause element); and ( 5) actual

damages ( damages element). Guilbeau Marine, 375 So. 3d at 985 n. 10. A negative

answer to any of the inquiries of the duty -risk analysis results in a determination of

no liability. Hemphill v. Smith, 2020- 0795, 2020- 0796 ( La. App. 1 Cir. 7/ 22/ 21),
328 So. 3d 1224, 1230, writ denied, 2021- 01286 ( La. 11/ 17/ 21), 327 So. 3d 997.

Here, Defendants specifically sought summary judgment on two bases: that

there was an absence of factual support for the duty element of Plaintiffs' negligent

supervision claim and that there was no breach of any duty owed by the daycare.

Therefore, our discussion herein is limited to those elements. See La.. C. C. P. art.

966( F).

Cel

Duty of Supervision

Our inquiry begins with whether Defendants owed a duty to Plaintiffs.

Plaintiffs argue that defendants owed a legal duty to reasonably supervise traffic and

children in the daycare facility' s drop- off and pick-up areas for the protection of the

children attending the daycare. Additionally, Plaintiffs argue that, if there is no such

legal duty, Defendants voluntarily assumed that duty of supervision by sometimes

having daycare employees located outside in the parking lot and drive monitoring

drop- off and pick-up.

The existence of a duty is a question of law. Farrell v. Circle K Stores, Inc.,

2022- 00849 ( La. 3/ 17/ 23), 359 So. 3d 467, 473. Temporary custodians of children,

such as school personnel and daycare workers, are charged with the highest degree

of care toward the children left in their custody, but they are not insurers of the

children' s safety. Supervisors of children must follow a standard of care

commensurate with the age of the children under the attendant circumstances. Wade

v. Mini World Daycare, 46,238 ( La. App. 2 Cir. 3/ 13/ 11), 63 So. 3d 1045, 1047.

This duty, however, does not require individual supervision of each child at all times

and places and is not without limitations. See Wade, 63 So. 3d at 1047. The liability

of the school or daycare for injuries to children exists only when the school or

daycare has actual custody of the children entrusted to its care. See Jackson v.

Colvin, 98- 182 ( La. App. 3 Cir. 12/ 23/ 98), 732 So. 2d 530, 533, writ denied, 99-

0228 ( La. 3/ 19/ 99), 740 So. 2d 117.

It is undisputed that Defendants herein are the owner, operator, and insurer of

the daycare where the child was allegedly injured. As such, Defendants had a duty

to supervise Eleanor while she was in the custody and care of the daycare. In this

case, Defendants argued that there is no genuine issue as to material fact that Eleanor

was in the sole custody and care of her legal guardian, her father Mr. Grady, at the

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time of the incident; therefore, Defendants maintain the daycare no longer owed a

duty of supervision, and Defendants are entitled to judgment as a matter of law.

In support of their motion for summary judgment, Defendants submitted

Plaintiffs' petition for damages; Plaintiffs' first amended and supplemental petition

for damages; excerpts from Mr. Grady' s deposition; Defendants' answer,

affirmative defenses, and jury demand to Plaintiffs' first amended and supplemental

petition for damages; the affidavit of Penny Navarre, the director of the daycare,

with the following attachments: the Parent Handbook (effective September 3, 2014)

the daycare sign in/ sign out log for Thursday, June 4, 2020, surveillance video of the

accident, and daycare employee log; and Plaintiffs' response to Defendants' requests

for admission.

In her affidavit, Ms. Navarre stated that the daycare issues a Parent Handbook

the " handbook") to all parents prior to their children beginning early childhood care

at Little People' s Play Station, LLC. The handbook outlines the policies and

procedures that parents must follow for their children to attend the daycare,

including a " Safe Arrival and Departure Policy" that outlines the daycare' s drop- off

and pick-up procedures. Ms. Navarre stated that the daycare does not " provide a

carpool line for parents to stay in their car and drop their children off at school or to

pick them up from school." The handbook required parents to come into the daycare

to drop off their children and to come back inside the daycare at the end of the day

to pick up their children. The handbook also required parents to sign in their children

at the beginning of the day and sign them out at the end of the day. The handbook' s

Safe Arrival and Departure Policy" in effect at the time of the accident at issue

specifically provided:

All parents must sign children in upon arrival and out
upon departure. Each parent shall be assigned a code to
access your child' s account at the time of enrollment. This
code is used to sign in and sign out your child. Parents are
asked not to share codes with unauthorized users. Little

M.

People' s Play Station staff will not receive students before
6: 00 a.m. Pick up time is by 6: 00 p. m. [ L] ate fees will
apply after this time. No Exceptions. It is understood that
on occasion parents have urgent matters that cause them
to pick up their child after 6: 00 p.m. In this event[,] a late
charge of $10. 00 plus an additional fee of $1. 00 per minute
will be applied to every minute after 6: 00 p.m.

To prevent unnecessary accidents, parents are asked to
take your child/ children directly to their class upon
entering the building or to the designated class for students
arriving before 7: 30 a.m. Students leaving the building
must be accompanied by a parent or an adult from the class
to the vehicle. DO NOT ALLOW your child the freedom
to run or roam the building, classrooms[,] or hallway. We
will not release a child to anyone who is not listed on the
child' s registration release form and does not have a
proper picture ID ( i.e. driver' s license, state ID). Both
parents are allowed to sign a child out of the center, unless

otherwise stated by custody papers. You must inform us
of any restraining orders/ custody issues and provide a
certified copy of custody orders. Little People' s Play
Station will not serve as a place for custody visitation.

Safety Tips during Arrival and Departure

1. Please if you plan to stay more than two to three
minutes to drop off your child[,] pull your vehicle to
the side and park to allow cars to pass.
2. Please turn your car off and take the keys out of the

ignition before entering the center.
3. Please turn off or turn down loud music[.]
4. Please drive very slowly when
approaching the

building or driving under the shelter[.]
5. Please do not leave small children unattended in your
automobile. Any of the following can happen:
6. The child or another child can jump into the driver' s
seat and change gears[.]

7. The child or baby can choke[.]
8. Someone can abduct your child[.]
9. Children can climb out of the car and get hit by a
moving car or wander off[.]
10. Children can go into your purse and open medicine
bottles[.]
11. Heat exhaustion or hypothermia may occur since your
car should not be left running[.]
12. Head, neck, and arms can get caught in power
windows[.]

13. Children can sometimes lock parents out of the car or
parents may accidentally lock themselves out of the
car[.]

Emphasis in original).

Mr. Grady testified that on the day of the accident at issue, he arrived at the

daycare and parked along a horseshoe drive located in front of the daycare. He shut

off his engine and left the doors of his vehicle unlocked. He observed a white 4 -

Runner parked under a canopy that is located at the entrance of the daycare. The

daycare' s surveillance video shows that on the date ofthe incident, Mr. Grady parked

directly behind the white 4 -Runner that was parked partially under the canopy

located at the daycare entrance.

Mr. Grady entered the daycare and signed his children out for the day.

According to the daycare' s log in/log out sheet, Mr. Grady signed his children out

for the day at 5: 20 p.m. on the date of the incident. He then retrieved. his children

from their respective classrooms. Mr. Grady testified that Oliver was strapped into

a car seat, and he held Eleanor' s hand. Mr. Grady testified that a group of adults,

including daycare employees and parents, were standing inside the building near the
daycare' s entrance. As he exited the daycare, he observed the 4 -Runner was still

parked in front of his vehicle. When he reached the passenger side of his parked

vehicle— at some point between the front headlight and hinge of the front door —

Mr. Grady testified that Eleanor pulled away, and he let go of her hand. Thereafter,

Eleanor was struck by the 4 -Runner. Eleanor was not within Mr. Grady' s " line of
sight" at the time the contact occurred.

The daycare' s surveillance video shows that Mr. Grady exited the daycare

building holding Oliver' s car seat and his children' s bags. Eleanor exited in front of

Mr. Grady; the two were not holding hands. As Mr. Grady opened the rear passenger

door of his vehicle and placed the car seat inside, Eleanor roamed freely around the
concrete lot and the horseshoe drive. She walked back toward the daycare entrance

and passed the 4 -Runner on its passenger side. As Eleanor walked past the 4 -Runner,

it began to slowly accelerate forward. As it accelerated, Eleanor walked in front of

the 4 -Runner, when it eventually struck her. While Mr. Grady loaded the car seat

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into his vehicle and Eleanor roamed freely, the only other person observable in the

concrete lot and the horseshoe drive was a small child who entered the 4 -Runner on

the driver' s side.

Mr. Grady testified that the daycare provided him with a copy of the

handbook. He also stated that he was familiar with the daycare' s drop- off and pick-

up procedures and the flow of traffic during those times, which was essentially the

same since Eleanor' s enrollment at the daycare. Mr. Grady was not aware of any

prior incidents or " close calls" where either of his children came close to being struck

by another vehicle, nor had he or his wife ever complained to the daycare about any

issues with the drop-off and pick-up procedures.

The instant matter is analogous to cases where the transition of children out

of school custody has clearly occurred. In those instances, the courts found that the

schools were not liable for injuries suffered by students who were not in the school' s

custody and control at the time the accidents occurred. See, e. g., Jackson v. Colvin,

98- 182 ( La. App. 3 Cir. 12/ 23/ 98), 732 So. 2d 530, writ denied, 99- 0228 ( La.

3/ 19/ 99), 740 So.2d 117; Cavalier v. Ward, 97- 1927 ( La. App. 1 Cir. 9/ 25/ 98), 723

So. 2d 480, writ denied, 98- 2615 ( La. 12/ 11/ 98), 729 So. 2d 1047; Frederick v.

Vermilion Parish School Board, 2000- 382 ( La. App. 3 Cir. 10/ 18/ 00), 772 So. 2d

208, writ denied, 2000- 3171 ( La. 1/ 12/ 01), 781 So. 2d 561; BL v. Caddo Parish

School Board, 46, 557 ( La. App. 2 Cir. 9/ 21/ 11), 73 So. 3d 458; Hayes v. Sheraton

Operating Corp., 2014- 0675 ( La. App. 4 Cir. 12/ 10/ 14), 156 So. 3d 1193; and

Raymond v. Iberia Parish School Board, 2020- 596 ( La. App. 3 Cir. 6/ 9/ 21), 323

So. 3d 447, writ denied, 2021- 00986 ( La. 11/ 3/ 21), 326 So. 3d 892. Further, those

cases involving children who were injured while clearly in the custody and under

the supervision of a school or daycare are distinguishable. Cf. Higginbotham v.

Community Christian Academy, Inc., 2003- 0462 ( La. App. 1 Cir. 12/ 31/ 03), 868

So. 2d 765; Yates Through Yates v. Children' s Workshop, 555 So. 2d 503 ( La.

11

App. 4 Cir. 1989); Gary on Behalf of Gary v. Meche, 626 So.2d 901 ( La. App. 3

Cir. 1993); and Sutton v. Duplessis, 584 So. 2d 362 ( La. App. 4 Cir. 1991).

Based on our de novo review of the evidence submitted by Defendants in

support of their motion, and the applicable jurisprudence, we find that. Defendants

met their initial burden of showing that there are no genuine issues of material fact

that the daycare did not have custody and control of Eleanor at the time of the

accident at issue, and therefore, did not owe a duty of supervision. See La. C. C. P.

art. 966( D)( 1); Lucas, 358 So. 3d at 84. The burden then shifted to Plaintiffs to

produce factual evidence sufficient to establish the existence of a genuine issue of

material fact or that Defendants are not entitled to judgment as a matter of law. See

La. C. C. P. art. 966( D)( 1); Lucas, 358 So. 3d at 84.

In opposition to Defendants' motion for summary judgment, Plaintiffs

submitted excerpts from Mr. Grady' s deposition; excerpts from Mia Ahles' s

deposition; Plaintiffs' petition for damages and first amended and supplemental

petition for damages; the affidavit of Penny Navarre ; two versions of the Parent

Handbook, one effective September 3, 2014 and one effective February 1, 2023;
excerpts from the La. C. C. P. art. 1442 deposition of Little People' s Play Station,

LLC, through Penny Navarre; Louisiana Department of Education Section 1103

Critical/Reportable Incident form documenting Eleanor' s accident; and the affidavit

of V.0. " Dean" Tekell, Jr., P. E., P. T.O.E., with the following attachments: Mr.

Tekell' s curriculum vitae, copies of literature on which Mr. Tekell relied to form his

expert opinion, and black and white photocopied photographs of the daycare parking
lot and a screenshot from a surveillance video. Also, in accordance with La. C. C. P.

art. 966( A)(4)( a) and ( b),
Plaintiffs specifically referenced documents previously

filed into the record in further support of their opposition: Penny Navarre' s affidavit

and the attached daycare sign in/sign out log for Thursday, June 4, 2020 and Mr.

Grady' s deposition

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Plaintiffs argued that the affidavit and testimony of Ms. Navarre and the

handbook showed that the daycare had no " supervisory" policy in place for the

departure of its students. Plaintiffs contended that the handbook in no way addressed

the daycare' s duty to supervise its students after parents signed out their children for

the day. Although the handbook set forth a " Safe Arrival and Departure Policy,"

Plaintiffs argued that the policy did not specifically address the daycare' s

supervision or control of children in the pick-up and drop- off areas outside the

building. Plaintiffs noted that the handbook' s policy in effect at the time of this

accident provided that students leaving the daycare must be accompanied by a parent

or an adult from their classroom to a vehicle, arguing that language made it clear

that a parent is not the only adult person who can drop-off or pick-up a student.

Plaintiffs also claimed that an updated version of the handbook became effective

after the date ofthe accident at issue and contains the following language: " DO NOT

ALLOW your child the freedom to run or roam the building, classrooms, hallway,

parking lot, and driveway,", whereas the policy in effect at the time of the accident

only prohibited children from running freely in the building, classrooms, and the

hallway. Accordingly, Plaintiffs argued that change in language indicates the

handbook' s prior policy did not require parents to be primarily responsible for

supervising their children after they were released from class and exited the building

into the parking area and drive.'

3 In their opposition memorandum, Plaintiffs also claimed that the updated handbook contains a
section that states: " Little [P] eople' s [ P] lay [ S] tation will not be held liable for accidents, incidents,

or injuries that may occur to children who are not under the care of [L] ittle [ P] eople' s [ P] lay
S] tation. When children are released from the class to parents/ guardians, they are no longer under
the care of [L] ittle [ P] eople' s [ P] lay [ S] tation." . Plaintiffs contended that the updated version of
the handbook belies Defendants' argument that the " Safe Arrival and Departure Policy" in the
handbook in effect at the time of the accident constituted a " supervisory" drop-off and pick-up
procedure that absolved the daycare of any duty of supervision once Mr. Grady signed Eleanor out
for the day.However, this portion of the updated handbook is not in the record and therefore may
not be considered. See Parent v. Louisiana Department of Public Safety and Corrections,
2021- 0897 ( La. App. 1 Cir. 3/ 3/ 22), 341 So. 3d 804, 806.

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Plaintiffs also submitted the affidavit of V.O. " Dean" Tekell, an engineer

qualified to render expert opinions as to the safe and proper design for parking and

picking up and dropping off children on the premises of daycare centers. After

reviewing the documents submitted in support of and in opposition to the motion for

summary judgment, Mr. Tekell attested that the daycare did not have in place— nor

communicate to parents— safe, supervised drop-off or pick-up points on the

premises; did not provide the daycare employees with any instructions or directions

with regard to safely having children picked up; and that there existed a complete

lack of supervision of the loading and unloading of children from vehicles by the

daycare staff. Mr. Tekell stated that the daycare had a duty and obligation to provide

a reasonably safe location and procedure by which children could be picked up by

parents and guardians driving and parking vehicles at the daycare. He attested that

the daycare' s failure to comply with that duty caused or substantially contributed to
the occurrence of the accident at issue.

Citing this evidence, Plaintiffs argued the daycare could be held liable for

Eleanor' s injuries because the daycare failed to provide a supervisory policy for

departure that applied to the parking lot and drive area outside the daycare. Plaintiffs

cited Gary, 626 So.2d 901, in support. In Gary, a six-year-old child, who lived

across the street from her elementary school, was struck by a moving vehicle at
dismissal. When school let out at 3: 00 p.m., the child ran out into the street right in

front of the school without waiting for her mother, who normally picked her up.
Gary, 626 So.2d at 902. In imposing liability on the school board, the Third Circuit

found that the school board failed to present any evidence of a supervision policy
once classes were dismissed. There was no one on duty in the school yard at

dismissal, which the court noted to be a critical time to ensure students safely reached
their buses or their parents' vehicles. Although the child was off c-ampus, the

accident occurred immediately following and as a result of the child' s unsupervised

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departure from the school grounds. Gary, 626 So. 2d at 904- 05. Like the plaintiffs

in Gary, Plaintiffs maintained Defendants did not have a supervisory policy, and as

a result, Defendants should be liable for Plaintiffs' injuries.

Unlike Gary, however, Defendants here presented evidence of the daycare' s

pick-up and drop- off policy in the form of the handbook and Mr. Grady' s own

testimony. Mr. Grady testified that he was aware of and familiar with the daycare' s

departure procedure, which is identical to the policy as outlined in the handbook that

was provided to him by the daycare. Mr. Grady confirmed that the daycare' s drop-

off and pick-up policy in the handbook made parents responsible for bringing their

children into the daycare in the morning, signing them in, and then returning to the

daycare and going back inside the building in the afternoon, signing out their

children, retrieving them from their classrooms, and then exiting the building. As

such, we find Gary distinguishable and find no merit to Plaintiffs' assertion that the

daycare failed to provide a supervisory policy for departure.

Alternatively, Plaintiffs argued that, if the daycare did not have a legal duty

to supervise its students once they exited the building after being signed out for the

day by their parent, the daycare voluntarily assumed that duty by sometimes having

daycare employees present in the pick-up and drop- off area. In Barnes v, Bott, 615

So. 2d 1337, 1341 ( La. App. 4 Cir.), writ denied, 619 So.2d 546 ( La. 1993), a six-

year- old child was hit by a car while crossing an unguarded intersection on his way

home from school. Guards were usually posted at the intersection, but the crossing

guard failed to show up on the day of the accident. The school board' s policy in such
cases was to either warn the students that no guard would be present or find a

substitute guard. In this case, the school did neither. Barnes, 615 So.2d at 1339,

1341. The court of appeal held that when a school board provided a crossing guard

at a particular crossing, it assumed the duty of verifying the presence of the guard

during her normal duty hours." Barnes, 615 So. 2d at 1341. The court of appeal

15

found a breach of the school board' s duty in not finding a substitute guard or warning

the students that no guard would be present. Barnes, 615 So. 2d at 1341.

We find the evidence presented in support of and in opposition to the motion

for summary judgment demonstrates that the daycare did not assume the duty of

supervision for Eleanor once she weal entrusted to the care of her father. As

established by Ms. Navarre' s affidavit, the daycare did not maintain a carpool line

because parents were responsible for physically dropping off and retrieving their

children from inside the daycare facility. The handbook also did not provide for

supervised loading and unloading of children into their parents' vehicles, nor did it

provide for daycare employees to be present outside the daycare supervising the

parking lot and drive. In fact, Mr. Grady himself acknowledged that daycare

employees did not help him bring his children out to his vehicle in the drop- off and

pick-up area.

Ms. Ahles, the driver who struck Eleanor with her 4 -Runner, testified that the

daycare " frequently"
had its employees present outside the daycare monitoring the
pick-up and drop- off area " to make sure that vehicles weren' t getting backed up,

make sure kids weren' t being left without, you know, parents saying, come on, let' s

get in the car, just kind of helping them hurry and get in the car and go." However,
Ms. Ahles was later asked whether "[ the daycare employees] would be in the area

where parents were loading their children into the cars?" to which she responded,

Not necessarily because that was the parents' job. [ The daycare employees] would

just be in front of the buildings making sure traffic was kind of directed in that
sense."
Ms. Ahles also confirmed that she did not observe daycare employees

outside the building every time she went to the daycare for drop-off and pick-up and
further explained that, if employees were outside,
sometimes they would be

depositing trash in the dumpster or simply asking the parents to pull their cars up to
make room for more parents arriving. On the date of the incident, it is undisputed

16

that there were no daycare employees outside in the drive or in the parking lot

assisting with pick-up and drop- off.

Considering the foregoing evidence, we find, under the specific facts of this

case, the daycare no longer owed a duty to supervise Eleanor at the time of the

accident because Mr. Grady had resumed custody and control of his child in

accordance with the daycare' s established policy. Additionally, we find the daycare

did not assume the duty of supervising the child during pick-up and drop-off. As
such, on our de novo review, we find no error by the trial court in granting

Defendants' motion for summary judgment.'

DECREE

We affirm the trial court' s November 28, 2023 judgment that granted

summary judgment in favor of Defendants, Little People' s Play Station, LLC, Joida,

LLC, and Wilshire Insurance Company, and against Plaintiffs, Matthew and Melicia

Grady, individually and as representatives of the minor, Eleanor Grady. All costs of
this appeal are assessed to appellants.

AFFIRMED.

4 Given our finding that Defendants did not have a duty to supervise, we pretermit any discussion
of the breach element. See Farrell, 359 So. 3d at 479. Further, to the extent Plaintiffs assert
Defendants breached some other duty owed to Plaintiffs, we reject this argument. Plaintiffs did
not introduce any evidence that would tend to establish the existence of a duty separate and apart
from the duty of supervision or breach thereof.

17

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2024 CA 0244

MATTHEW GRADY AND MELICIA GRADY, INDIVIDUALLY AND AS
REPRESENTATIVES OF THE MINOR, ELEANOR GRADY

VERSUS

MIA NICOLE ARLES, LITTLE PEOPLE' S PLAY STATION, LLC, AND MARKEL
INSURANCE COMPANY

91/
WELCH, J., dissenting in part.

I respectfully dissent in part. I find that the duty and breach elements of

Plaintiffs' premises liability claim were properly before the court on the motion for

summary judgment and should have been considered by the trial court. On my de

novo review of the record, I find that genuine issues of material fact exist as to

whether the daycare' s pick-up and drop- off areas presented an unreasonably

dangerous condition. Based on the affidavit of V.O. " Dean" Tekell-- an engineer

qualified to render expert opinions as to the safe and proper design for parking,

picking up, and dropping off children on the premises of daycare centers— coupled

with the surveillance video depicting the accident, it is clear that Mr. Grady was

distracted and overwhelmed while loading Oliver' s car seat into his vehicle and

attempting to make sure that Eleanor was safe. To say that the daycare had no

responsibility to assist with pick-up and drop-off fails to consider the duty of the

daycare to maintain its premises in a reasonably safe condition. Accordingly, I find

that the trial court erred to the extent that it dismissed all claims brought by Plaintiffs

against Defendants in rendering summary judgment in favor of Defendants on

Plaintiffs' negligent supervision claim. I would reverse that portion of the trial

court' s November 28, 2023 judgment that dismissed all claims brought by Plaintiffs

against Defendants.

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