Maria Mickens Green, Individually and as the Natural Tutrix of the Minors, Joshua Evans, Makiya Mickens, Vernon Evans, Jr., Makayla Evans, and Braxton Evans v. East Carroll Parish School District/Board

Judgment rendered March 1, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,910-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MARIA MICKENS GREEN, Plaintiffs-Appellants
INDIVIDUALLY AND AS THE
NATURAL TUTRIX OF THE
MINORS, JOSHUA EVANS,
MAKIYA MICKENS, VERNON
EVANS, JR., MAKAYLA EVANS,
AND BRAXTON EVANS

versus

EAST CARROLL PARISH Defendant-Appellee
SCHOOL DISTRICT/BOARD

*****

Appealed from the
Sixth Judicial District Court for the
Parish of East Carroll, Louisiana
Trial Court No. 22,766

Honorable Laurie R. Brister, Judge

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THE RAYMOND LEE CANNON Counsel for Appellants
LAW FIRM, LLC
By: Raymond Lee Cannon

HAMMONDS, SILLS, ADKINS, Counsel for Appellee
GUICE, NOAH & PERKINS, LLP
By: Linda Kay Ewbank

*****

Before STONE, STEPHENS, and THOMPSON, JJ.

THOMPSON, J.

A mother of a disabled child who uses a wheelchair was injured when

she fell while transitioning her child from her vehicle into his wheelchair in

the school parking lot. The special services school bus equipped with a

wheelchair lift was not functioning properly, and the mother elected to

transport this child and her other children to school herself that day. She

asserts that her injuries were caused by the school board’s failure to provide

her disabled son with the necessary transportation, as provided by state law

and his special education program. The injured mother filed suit against the

school board alleging that it was negligent for failing to provide the required

transportation and services to her son, which caused her to fall when she

elected to transport him herself. Asserting that its alleged negligence was

not the cause of her injuries, the school board filed a motion for summary

judgment, which was granted by the trial court. The mother appeals.

Finding no genuine issue of material fact regarding the school board’s

negligence and the cause of her injuries, we affirm the trial court’s grant of

the summary judgment.

FACTS AND PROCEDURAL HISTORY

Appellant, Maria Mickens Green (“Green”), initiated this lawsuit

following an incident that occurred while dropping her son, Joshua Evans

(“Joshua”), off at his school one morning. Joshua, an 11-year-old 6th grader

at the time of the incident, attended Griffin Middle Academy in Lake

Providence, East Carroll Parish, Louisiana. Joshua has cerebral palsy and

uses a wheelchair. Because of his disability, Joshua receives an

Individualized Education Program (“IEP”) plan through the Louisiana

Department of Education. Joshua’s IEP plan specifically provides that he

receives “Special Transportation,” and notes that “he rides special services

school bus” equipped with a wheelchair lift. The East Carroll Parish School

Board (“school board”) has a special services school bus with a wheelchair

lift to provide this service.

On September 6, 2016, Green arrived at Griffin Middle Academy in

her personal vehicle to drop her five children off at school, including Joshua.

The school board’s special services bus could not pick Joshua up for school

that day because the wheelchair lift was not functioning properly. Green

claims that she was not contacted by the bus aide or anyone from the school

to let her know ahead of time that Joshua could not be picked up. The

school board disputes that assertion and claims it did inform her of the

problems with the bus that morning. As discussed below, the issue of if or

when Green received notice of the malfunction of the wheelchair lift is not

material to the issues before this Court.

Green asserts she only transported Joshua and her other children to

school herself because the wheelchair lift was broken and Joshua could not

ride the special services bus. Upon arrival at the school, Green exited her

vehicle, removed Joshua’s wheelchair from the vehicle, and set it up for him.

While Green was lifting Joshua to transition him into his wheelchair, she

alleges she fell backwards onto the ground, with Joshua falling on top of her,

causing her injuries.

On August 28, 2017, Green filed a petition for damages against the

East Carroll Parish School Board, individually and on behalf of her five

children. Green alleges that her fall in the parking lot at Griffin Middle

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Academy was caused solely by the fault and negligence of the school board:

failing to provide the safe and required transportation for Joshua; failing to

provide appropriate services and education for Joshua; failing to provide the

appropriate assistance and planning for Joshua’s transportation to and from

school; and failing to abide by state law and regulations applicable to the

education and assistive services for Joshua. Green claims that as a result of

the school board’s negligence, she and Joshua sustained bodily injuries and

incurred medical expenses. Green also asserts loss of consortium claims on

behalf of her four other children.

A pretrial conference was held on December 10, 2020, and a

scheduling order was issued. The deadline to file dispositive motions was

set for August 23, 2021, with a trial date of October 27, 2021. On August

18, 2021, the school board filed its motion for summary judgment. The

school board mailed a courtesy copy of its motion for summary judgment to

counsel for Green the day before, August 17, 2021. Counsel for Green was

served by the Madison Parish Sheriff with the motion for summary judgment

on or about August 31, 2021.

In its motion for summary judgment, the school board argued that it

did not cause Green’s injuries that resulted from her fall. The school board

noted several material facts that were not in dispute. The school board

asserted that Green regularly transports her son and her other children to and

from school. The school board permits Green the added convenience and

courtesy to load Joshua and her other children in the front of the school, as

opposed to the side of the school where other students are typically dropped

off. On the day of her fall, by her own admission, Green was tired and in a

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hurry, and she did not seek assistance from any school board employee to

help her with unloading Joshua from her vehicle. With regard to the special

services school bus, the school board admitted that the wheelchair lift was

not working that day, which was discovered during a daily safety check.

Therefore, rather than breach its duty to provide safe transportation for

Joshua, the bus did not pick him up. The school board also noted that the

bus was new, and the issues with the wheelchair lift were not anticipated.

The issues with the wheelchair lift arose at the beginning of the school year,

and there were numerous attempts to repair the problem. The school board

asserted that Green did not inform the Special Education Director, Pat

Roberson, or any other employee at the school that she was unable to

transport Joshua to school when the lift was not operational.

The school board argued that Green’s fall was not due to a premises

defect or any condition at Griffin Middle Academy. During her deposition,

Green testified she was tired and in a hurry on the morning of her fall, and

she did not identify a defect or dangerous condition on the property that

caused her fall. Further, the school board argued that Green’s fall was not

caused by its inability to provide transportation on the bus for Joshua that

morning. The school board contended that its duty to provide transportation

to Joshua does not include an obligation to protect against the risk that Green

– Joshua’s parent – might lose her balance and fall while she hurriedly

delivers her children to school. The school board argued the duty imposed

by the school board’s obligation to provide transportation to Joshua did not

extend to Green to protect her from a personal injury. The school board

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argued that the risk of injury to Green was an attenuated risk that was not

foreseeable.

Green filed an opposition to the motion for summary judgment.

Green included an objection to the motion for summary judgment on the

basis of untimely service. Green argued that her attorney was not served

with the motion by the Madison Parish Sheriff’s Office until September 2,

2021. With her opposition memorandum, Green included Joshua’s IEP plan,

as well as deposition testimony from school board employees, including

Special Education Director, Pat Roberson, and acting Superintendent,

Megan Brown. Green argued the IEP plan provided that Joshua required

special transportation services, specifically a bus equipped with a wheelchair

lift. Further, Green argued that the lift was used to prevent falls and injuries

to Joshua and aides or helpers. Green argued that the IEP plan does not

specifically provide that Joshua is to be furnished a homebound teacher for a

non-medical reason when the special services bus does not transport him to

school, which is contradictory to the deposition testimony of the school

board employees. Green also argued that the IEP plan does not specify that

Joshua would receive an excused absence for the day in the event she could

not transport Joshua herself when the bus was not running. Green implies

those considerations were instrumental to her decision to transport Joshua to

school that day.

The motion for summary judgment was heard on September 28, 2021.

The trial court ruled in favor of the school board and dismissed Green’s suit.

In an oral ruling, the trial judge first found that the school board’s motion for

summary judgment was filed timely, in accordance with the court’s

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scheduling order. The trial judge noted that the school board does not have

control of the service by the sheriff in Madison Parish, where Green’s

attorney is located.

The trial judge conducted a duty-risk analysis to determine whether

the school board owed a duty to Green. The trial judge acknowledged that

the school board did have a duty to provide transportation to Joshua to and

from school. The trial judge stated that school board employees, Pat

Roberson and Megan Brown, testified in their depositions that if Joshua had

not come to school that day, the school would have provided homebound

services and he would not have been marked absent. The trial judge noted

that the school board could not have foreseen that Green would have been

tired and in a hurry when she took Joshua to school, or that she would fall

when unloading him from her vehicle. The trial judge noted that Green

regularly unloaded Joshua at school, and she is permitted to park her vehicle

close to the front entrance of school.

The trial judge found that the risk of Green falling in the course of a

familiar and common task was not in the scope of the school board’s duty to

provide transportation to Joshua. With regard to Joshua’s IEP plan and the

school’s legal duties, the trial court found those duties did not extend to

Green’s fall, particularly where there were no allegations of a defect in the

parking lot, or any other factor that might have contributed to her fall. The

trial judge concluded the evidence showed the only reason for Green’s fall

was her own haste and negligence, and there were no genuine issues of

material fact. Green appeals.

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DISCUSSION

Green asserts several assignments of error in her appeal of the trial

court’s ruling on the motion for summary judgment. First, we will consider

Green’s assignment of error which relates to service of the motion for

summary judgment after it was filed.

Service of Motion for Summary Judgment

• The school board’s motion for summary judgment was not served
according to law. It is not a judgment according to law.

Green argues that the school board’s motion for summary judgment

was not timely served. However, the motion for summary judgment was

timely filed, in accordance with the scheduling order issued by the trial

court. The school board’s motion and memorandum in support were

received and filed by the clerk of court on August 18, 2021, 69 days prior to

the trial date, and five days in advance of the August 23, 2021 date included

in the trial court’s scheduling order. Green’s counsel was also mailed a copy

of the motion on August 17, 2021. The record indicates that Green’s

counsel was served by the sheriff in Madison Parish on September 3, 2021,

which provided additional notice before the scheduled hearing.

Green objected to the service date because it was past the deadline to

file dispositive motions included on the scheduling order. Green urged her

objection in both her opposition to the motion for summary judgment, as

well as during the hearing on the motion on September 28, 2021. Both

times, the trial court overruled the objection. Further, Green does not argue

that a “delay” in service resulted in any hardship or prejudice, and we do not

see that any hardship existed as a result of late service. Green had notice,

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appeared at the hearing, and was not prejudiced in any manner. This

assignment of error is without merit.

Green alleges two assignments or error claiming certain facts are

material to her claims against the school board.

Material Facts

A fact is material if it potentially ensures or precludes recovery,

affects a litigant’s ultimate success, or determines the outcome of the legal

dispute. Jackson v. Minden Police Dep’t, 54,799 (La. App. 2 Cir. 11/16/22),

351 So. 3d 880; Green v. Brookshire Grocery Co., 53,066 (La. App. 2 Cir.

9/25/19), 280 So. 3d 1256. A genuine issue of material fact 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. Jackson v. City of New Orleans, 12-2742 (La.

1/28/14), 144 So. 3d 876, cert. denied, 574 U.S. 869, 135 S. Ct. 197, 190 L.

Ed. 2d 130 (2014); Jackson, supra. In determining whether an issue is

genuine, a court should not consider the merits, make credibility

determinations, evaluate testimony, or weigh evidence. Jackson, supra.

• The judgment granting the school board’s motion for summary
judgment is error of law because there are genuine issues of
material fact on the legal issue of the foreseeability of the mother
of a disabled child falling with the disabled child as she is tired
and hurries the child to school, where there is conflicting evidence
on whether the mother was told not to bring the child to school
because the lift on the special needs school bus did not work.

Green argues that there is conflicting evidence in the record related to

whether the school board contacted her to inform her that the special

services school bus was not operable on the morning on her accident. The

school board contends that it did contact Green. Regardless, we find that

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whether Green was notified by the school board about the bus is not a

material fact. Whether the school board contacted Green does not affect her

ultimate success on her theory of recovery, which is that the school board’s

obligation to provide transportation to Joshua extends to her safety when she

transports the child herself. At some point that morning, Green elected to

transport Joshua and her other children to school, notice or not. This

assignment of error is without merit.

• The trial court’s determination that the lawsuit is not about
whether the school board violated the law regarding disabled
children in providing access to transportation and aides is error of
law.

Green argues that Joshua’s IEP plan includes a requirement that aides

assist Joshua, even when he is transported to school in her personal vehicle.

However, the record shows that bus aides are required to assist Joshua when

he actually rides the special services bus. The record does not show that

aides assist students or their parents when they travel in their own personal

vehicles. With regard to Green’s fall and her injuries, whether an aide was

present to assist Joshua is not a material fact. Access to an aide who

normally assists Joshua on the bus does not potentially ensure Green’s

recovery, because an aide’s role does not include preventing falls by his

mother in the school parking lot. Green did not request assistance that

morning, and no aide was involved in the fall in any manner. This

assignment of error is without merit.

Green next asserts three assignments of error related to the substance

of the trial court’s ruling granting the school board’s motion for summary

judgment and the determination that the school board’s negligence did not

cause her injuries.

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Motion for Summary Judgment and Negligence

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the district court’s consideration of

whether summary judgment is appropriate. Peironnet v. Matador Res. Co.,

12-2292 (La. 6/28/13), 144 So. 3d 791; Bess v. Graphic Packaging Int’l,

Inc., 54,111 (La. App. 2 Cir. 11/17/21), 331 So. 3d 490. 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.

Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So. 3d 1002. The procedure is

favored and shall be construed to secure the just, speedy, and inexpensive

determination of actions. La. C.C.P. art. 966(A)(2).

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

memorandum, and supporting documents show that there is no genuine issue

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

law. La. C.C.P. art. 966(A)(3). In determining whether an issue is genuine,

a court should not consider the merits, make credibility determinations,

evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co.,

51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied, 17-01251 (La.

10/27/17), 228 So. 3d 1230; Bess, supra.

The burden of proof rests with the mover. 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, but rather to point out to the court the absence of

factual support for one or more elements essential to the adverse party’s

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claim, action, or defense. The burden is on the adverse party to 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.

La. C.C.P. art. 966(D)(1). Supporting and opposing affidavits shall be made

on personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify

to the matters stated therein. La. C.C.P. art. 967(A). When a motion for

summary judgment is made and supported as provided above, an adverse

party may not rest on the mere allegations or denials of his pleading, but his

response, by affidavits or as otherwise provided above, must set forth

specific facts showing that there is a genuine issue for trial. If he does not so

respond, summary judgment, if appropriate, shall be rendered against him.

La. C.C.P. art. 967(B).

Liability for negligence is determined by applying the duty/risk

analysis. Bufkin v. Felipe’s La., LLC, 14-0288 (La. 10/15/14), 171 So. 3d

851; Chreene v. Prince, 52,351 (La. App. 2 Cir. 9/26/18), 256 So. 3d 501.

The plaintiff must prove the defendant’s conduct was the cause-in-fact of his

harm, the defendant owed a duty of care, the defendant breached the duty,

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

breached. Id.

Whether a legal duty is owed by one party to another depends upon

the facts and circumstances of the case and the relationship between the

parties. Carroll v. Allstate Ins., 51,591 (La. App. 2 Cir. 9/27/17), 244 So. 3d

772; Gullette v. Caldwell Par. Police Jury, 33,440 (La. App. 2 Cir. 6/21/00),

765 So. 2d 464. The question of whether a duty exists is a question of law

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which may be appropriate for resolution by summary judgment when it is

clear that no duty exists as a matter of law and the facts of credibility of the

witnesses are not in dispute. Gullette, supra.

The scope of duty inquiry involves the question of how easily the risk

of injury can be associated with the duty sought to be enforced. Roberts v.

Benoit, 605 So. 2d 1032 (La. 1991); Richardson v. Lloyds, 48,715 (La. App.

2 Cir. 3/26/14), 136 So. 3d 953. It is not necessary for the defendant to have

foreseen the particular injury that occurred. A risk may be included in the

scope of the duty if the injury is easily associated with other risks that are

foreseeable. Forest v. State, Through La. Dep’t of Transp. & Dev., 493 So.

2d 563 (La. 1986). While the existence of duty is a legal question, “[t]here

is no ‘rule’ for determining the scope of the duty.” Roberts, supra; Pillow v.

Entergy Corp., 36,384 (La. App. 2 Cir. 9/18/02), 828 So. 2d 83, writ denied,

02-2575 (La. 12/13/02), 831 So. 2d 987. The scope-of-duty inquiry is fact

sensitive and ultimately turns on “a question of policy as to whether the

particular risk falls within the scope of the duty.” Id.

• The district court erred in finding that the school board owed no
legal duty to [Green] to assist her in getting her disabled child,
Joshua, out of her vehicle and into the school building when the
lift on the special needs school bus did not work.

• The district court exceeded its legal authority by granting
summary judgment contrary to La. C. C. P. art. 967(B) because
the deposition testimony shows specific facts that there is (sic) a
genuine issue for trial.

• The district court erred as a matter of law when it ruled on this
summary judgment record that [Green] is not within the class of
persons protected from the unreasonable risk of persons falling
with Joshua while getting him into school building for school.

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In this case, Green cannot prove the school board’s conduct was the

cause-in-fact of her harm. Green’s theory of the case is that the school

board’s duty to Joshua contained in his IEP plan extended to her because she

was required to transport him to school when the special services bus was

not working that particular day. Green argues that had the special services

school bus transported Joshua to school, she would not have driven him

herself. As such, she would not have been injured if the school board had

complied with its duties under the IEP plan. The trial court correctly found

that the school board did owe a duty of care to Joshua pursuant to the IEP

plan. Further, the school board acknowledges that it failed to provide the

required transportation to services to Joshua on the morning of Green’s fall.

The mechanical reliability of any vehicle cannot be guaranteed. When

vehicles fail to work, those affected must make reasonable decisions and act

with due care and safety.

When the required special services transportation is not available, the

record shows that a parent has options. A parent may request alternative

transportation. In this case, there was only one special services school bus

equipped with a wheelchair lift in the East Carroll Parish school board’s

fleet of vehicles. Unfortunately, the lift was not working that morning. The

record shows that attempts to resolve the issue were underway. The record

further shows that a parent could request a homebound instructor in the

event the child cannot make it to school for medical or other reasons. Here,

there is no evidence that Green sought to make such arrangements. Green

regularly transported all of her children to school, including Joshua, and the

record reveals that she was able to park her vehicle close to the front

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entrance of the school as a convenience on those occasions when she

dropped Joshua off herself. Once Green elected to transport her children to

school in her own vehicle, the school board’s duty contained in the IEP plan

regarding Joshua’s transportation no longer extended to his safety in his

mother’s vehicle. It follows that when Green elected to drive her children to

school, whether she would have preferred them to ride the bus or not, the

school board did not owe a duty to her to prevent her from sustaining an

injury while transporting her children. The school board cannot be

responsible for Joshua from the threshold of his home to the school property

when he is being voluntarily transported by his mother. Here, it is clear that

no duty exists as a matter of law, and summary judgment was appropriate.

Green argues that there is an ease of association between the injuries

from her fall and the school board’s failure to provide Joshua with his

required transportation. Determining the scope of the school board’s duty

involves the question of how easily the risk of Green’s injury can be

associated with the duty sought to be enforced – transporting Joshua to

school on the special services school bus. We find that her injury is too

attenuated from the school board’s duty to provide safe transportation for

Joshua, pursuant to his IEP plan. Green’s argument would extend liability to

the school board if the private vehicle Joshua was riding in was involved in

an accident on the way to school. The trial court correctly found that the

risk of Green falling was not in the scope of the school board’s duty to

provide transportation to Joshua. Accordingly, these assignments of error

are without merit.

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Green’s final assignment of error relates to the dismissal of her

lawsuit, including Joshua’s personal injury claim.

Joshua’s Claim

• The trial court committed legal error in granting the school
board’s motion for summary judgment dismissing Joshua’s
claims for personal injury.

After granting the school board’s motion for summary judgment, the

trial court dismissed Green’s lawsuit. On appeal, Green argues Joshua’s

cause of action should not have been dismissed. The trial court determined

that the school board was not at fault for Green’s fall. Therefore, the school

board cannot be held liable for Joshua’s injuries resulting from her fall,

which was caused by her own negligence. No party has alleged that Joshua

was at fault for his mother’s fall or for her conduct. As such, with the

granting of the motion for summary judgment there are no remaining claims

or theories of recovery, and the action was properly dismissed. This

assignment of error is without merit.

CONCLUSION

For the above reasons, we affirm the trial court’s judgment. Costs

of this appeal are assessed to appellant, Maria Mickens Green.

AFFIRM.

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