James A. Glenn O/B/O Cody M. Glenn v. Grant Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-0436

JAMES A. GLENN O/B/O CODY M. GLENN

VERSUS

GRANT PARISH SCHOOL BOARD, ET AL.

************

APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 19364
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

AFFIRMED.

Howard N. Nugent, Jr.
Attorney at Law
Post Office Box 1309
Alexandria, LA 71301-1309
COUNSEL FOR PLAINTIFF/APPELLANT:
James A. Glenn o/b/o Cody M. Glenn

Jon K. Guice
Linda K. Ewbank
Hammonds & Sills
1881 Hudson Circle
Monroe, LA 71201
(318) 324-0101
COUNSEL FOR DEFENDANT/APPELLEE:
Grant Parish School Board

PETERS, J.

The plaintiff in this matter, James A. Glenn, appeals the trial court’s grant of

summary judgment in favor of the Grant Parish School Board dismissing it from this

litigation. For the following reasons, we affirm the trial court judgment.

This litigation arises from an April 17, 2007 physical altercation on the Grant

High School campus involving two minors who were students at the

school—Shaquille Galberth and Mr. Glenn’s fifteen-year-old son, Cody M. Glenn.

The altercation resulted in significant injuries to Cody, and Mr. Glenn brought this

suit against the Grant Parish School Board (School Board) and others1 to recover the

damages his son sustained.2 After numerous other procedural filings, the School

Board filed the motion for summary judgment that is the subject of this appeal.

Following a September 15, 2009 hearing, the trial court granted the School Board’s

request for relief and dismissed it as a party defendant. This appeal followed that

judgment, and, in his single assignment of error, Mr. Glenn asserts that “[t]he trial

court erred in failing to find that the School Board was liable, because it had actual

notice of the harassment and did not document the wrongdoing or pass on the

complaint to higher authority.”

Appellate review of a summary judgment is de novo, applying the same

standard as the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.

7/5/94), 639 So.2d 730. Accordingly, we will review this matter de novo.

As a general principle, Louisiana law favors the summary judgment procedure

as a vehicle by which the “just, speedy, and inexpensive” determination of an action

1
Of the other defendants named in Mr. Glenn’s original suit, only Loletha Galberth,
Shaquille’s mother, remains as a party defendant.
2
Mr. Glenn brought this suit only on behalf of his minor son and asserted no claim for
damages he may have individually sustained.

may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render

summary judgment “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B). In a summary judgment proceeding, the burden of

persuasion remains always with the mover to show that no material issues of fact

exist. La.Code Civ.P. art. 966(C)(2). That is to say, the mover must present

supportive evidence that the motion for summary judgment should be granted. Hayes

v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.

3/14/97), 690 So.2d 41.

A fact is “material” when its existence or nonexistence may be
essential to plaintiff’s cause of action under the applicable theory of
recovery. “[F]acts are material if they potentially insure or preclude
recovery, affect a litigant’s ultimate success, or determine the outcome
of the legal dispute.” Simply put, a “material” fact is one that would
matter on the trial on the merits. Any doubt as to a dispute regarding a
material issue of fact must be resolved against granting the motion and
in favor of a trial on the merits.

Smith, 639 So.2d at 751 (citations omitted).

In determining whether a fact is material, we must consider the substantive law

governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir.

12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427.

This suit is based on negligence and questions of liability for negligent acts are

evaluated using a duty-risk analysis. Daye v. Gen. Motors Corp., 97-1653 (La.

9/9/98), 720 So.2d 654. Under this analysis, the “[p]laintiff must prove that the

conduct in question was a cause-in-fact of the resulting harm, the defendant owed a

duty of care to the plaintiff, the requisite duty was breached by the defendant and the

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

2

at 659. The plaintiff’s failure to prove any of the elements of the duty-risk analysis

must result in a determination of no liability. Lemann v. Essen Lane Daiquiris, Inc.,

05-1095 (La. 3/10/06), 923 So.2d 627. Cause-in-fact is a factual question to be

determined by the fact finder. Benjamin ex rel. Benjamin v. Hous. Auth. of New

Orleans, 04-1058 (La. 12/1/04), 893 So.2d 1. If a plaintiff is successful in

establishing the cause-in-fact element, he or she must next establish the existence and

nature of the duty owed by the defendant to the plaintiff. In the case of a school

board, the duty owed a student is that of “reasonable supervision.” Wallmuth v.

Rapides Parish Sch. Bd., 01-1779, 01-1780, p. 8 (La. 4/3/02), 813 So.2d 341, 346.

The reasonable supervision duty is analyzed by application of one of two Civil

Code articles: La.Civ.Code art. 2315, which provides that “[e]very act whatever of

man that causes damage to another obliges him by whose fault it happened to repair

it,” and/or La.Civ.Code art. 2320, which provides that “[t]eachers and artisans are

answerable for the damage caused by their scholars or apprentices, while under their

superintendence” although only when the teacher “might have prevented the act

which caused the damage,” yet did not do so. Although it reversed the ultimate

decision reached by this court, our supreme court, in Wallmuth, 813 So.2d 341,

adopted this court’s enunciation of the standard of liability for school boards under

either La.Civ.Code art. 2315 or La.Civ.Code art. 2320 as being correct. This court

had stated:

A school board, through its agents and teachers, owes a duty of
reasonable supervision over students. La. Civ.Code art. 2320; Adams
v. Caddo Parish School Bd., 25,370 (La.App. 2 Cir. 1/19/94), 631 So.2d
70, writ denied, 94,684 (La.4/29/94), 637 So.2d 466. The supervision
required is reasonable, competent supervision appropriate to the age of
the children and the attendant circumstances. Jackson v. Colvin, 98-182
(La.App. 3 Cir. 12/23/98), 732 So.2d 530, writ denied, 99-228 (La.
3/19/99), 740 So.2d 117. This duty does not make the school board the

3

insurer of the safety of the children. Id. Constant supervision of all
students is not possible nor required for educators to discharge their duty
to provide adequate supervision. Adams, 631 So.2d 70

Before liability can be imposed upon a school board for failure to
adequately supervise the safety of students, there must be proof of
negligence in providing supervision and also proof of a causal
connection between the lack of supervision and the accident. Id.
“Injury from horseplay between discerning students which, at some
stage may pose an unreasonable risk of harm to the participants, does
not automatically and of itself render the supervising authority liable.”
Henix v. George, 465 So.2d 906, 910 (La.App. 2 Cir.1985).
Furthermore, before a school board can be found to have breached the
duty to adequately supervise the safety of students, the risk of
unreasonable injury must be foreseeable, constructively or actually
known, and preventable if a requisite degree of supervision had been
exercised. Id.

Wallmuth v. Rapides Parish Sch. Bd., 01-42, pp. 4-5 (La.App. 3 Cir. 5/16/01), 802
So.2d 28, 31-32, rev’d, Wallmuth, 813 So.2d 341.

The factual basis upon which the trial court determined that the School Board’s

motion for summary judgment had merit was supplied by Cody’s September 4, 2009

affidavit3 and his January 22, 2009 deposition testimony; by Swaka Coleman’s

September 4, 2009 affidavit; by the January 22, 2009 deposition testimony of Sharon

M. Shelton, a teacher at Grant High School; and by an April 24, 2009 affidavit of

Randy Crawford, the Grant High School principal. In evaluating the matter now

before us, we first note that, although the altercation giving rise to this litigation was

between Cody and Shaquille, it had its roots in previous problems that had arisen

between Shaquille and Swaka Coleman, who was another Grant High School student

and Cody’s sixteen-year-old cousin.

The affidavits and deposition testimony establish that, during the week leading

up to the altercation, Shaquille had teased Swaka unmercifully about facial hair on

3
The text of the affidavit suggests that it was signed on September 4, 2007. However, it was
sworn to and subscribed to by the notary on September 4, 2009.

4

her upper lip. According to Swaka’s affidavit, her complaints to her teachers went

unaddressed, and Shaquille’s humiliating actions only got worse. When it became

apparent that the school officials were not going to protect Swaka, Cody entered the

picture.4

Cody’s affidavit and deposition testimony establish without dispute that shortly

after lunch on April 17, 2007, he approached Shaquille as the students were milling

around the outside common area of the campus. When confronted by Cody, Shaquille

admitted his efforts to publicly humiliate Swaka and immediately began to threaten

Cody physically. Cody did not engage Shaquille, but retreated—initially to a brick

wall some fifteen to twenty feet away from Shaquille and then to stand behind one of

the teachers on duty in the common area. However, when the school bell rang for the

students to return to class, Shaquille struck Cody, and the altercation began in earnest.

A number of the other students in the area joined sides, and the situation

quickly became less of a fight and more of a riot. Once the melee was brought under

control by the school personnel, Cody first went to the bathroom to tend to his

bleeding nose and then was taken to the emergency room of an Alexandria, Louisiana

hospital.

Affidavits and deposition testimony supporting the motion for summary

judgment establish that, at the time of the April 17, 2007 altercation, at least four

teachers were assigned to, and present at, specific locations in the common areas of

the campus, with two teachers “roving” around the common areas in support of the

4
According to Swaka, she asked Cody to intervene on her behalf and confront Shaquille.
Cody’s affidavit acknowledges her direct request, but in his deposition he testified that he was
approached, not by Swaka, but by two of his friends who told him of Shaquille’s harassment of
Swaka.

5

stationary teachers.5 Additionally, nothing in the evidence before the trial court

suggests that Shaquille had any disciplinary history or that any teacher or

administrator had any knowledge of the possibility that Cody might act as Swaka’s

protector with regard to Shaquille.6

In its motion for summary judgment, the School Board argued both that the risk

of injury was not foreseeable and that there was no evidence of negligent supervision

on the part of the School Board. Mr. Glenn argued that Cody’s injury was

foreseeable because the School Board, through its teachers, had actual knowledge of

Shaquille’s ongoing harassment of Swaka. Mr. Glenn also argued that the School

Board’s failure to take any actions to stop or mitigate Shaquille’s harassment of

Swaka was a cause-in-fact of Cody’s injuries.

In its oral reasons for judgment, the trial court stated that it had reviewed the

record and concluded:

I understand that [Cody] was acting in defense of his cousin, however,
the injuries that are at issue here are the injuries that he sustained as a
result of the altercation with [Shaquille]. And the school board’s
handling of any harassment or teasing of [Swaka], while that may have
precipitated the incident, I think we have to look at the school board’s
responsibilities toward [Cody], with respect to: Were they negligent in
their handling of that situation? And I think that situation being
something that transpired on a Tuesday, not what happened on Friday
or the days leading up to that date. I find it interesting that in [Cody’s]
deposition he indicated that he was not expecting a fight with
[Shaquille]. That was not what he was expecting to transpire when he
confronted him about the teasing. Did [Cody], who was the one that
initiated the contact, or the conversation with [Shaquille] - - if he were
not expecting the fight, how could the school expect such an incident to
occur? While I understand your underlying ideas of that the school has
responsibility [sic] to ensure that it is a safe and non-hostile environment
that’s conducive to learning, I don’t find any evidence of any disputed

5
Other evidence suggests that the stationary teachers could have numbered as many as seven,
with three additional “rovers.”
6
In fact, Cody testified specifically that he did not speak to any administrator or teacher
concerning Shaquille’s harassment of Swaka or his intent to confront Shaquille.

6

fact as to whether or not, as to [Cody], that the school met its
responsibility of trying to provide a safe environment for him. They had
no - - there was nothing to indicate to them that this altercation was
going to occur. And given the depositions that were filed, indicating
that the fight was broken up within 30 to 40 seconds; given the number
of students who became involved in the altercation, I believe that their
actions were reasonable under the circumstances and, therefore, I am
going to grant the defendant’s Motion for Summary Judgment.

Thus, without stating as much, the trial court followed the guidance provided by the

supreme court in Wallmuth, 813 So.2d 341, concluding that, regardless of the

knowledge the school personnel may have had concerning the problems between

Shaquille and Swaka, there exists no evidence to suggest that the School Board could

have foreseen even the possibility of an encounter between Shaquille and Cody over

Swaka’s complaints. That is to say, while the School Board was not able to ensure

Cody’s safety, no evidence exists to suggest that it failed in its duty of reasonable

supervision.

We find no error in the trial court’s judgment. Therefore, we find no merit in

the single assignment of error asserted by Mr. Glenn.

Motion to Strike

The School Board filed a motion with this court, asking us to strike the copy

of Swaka’s affidavit attached to Mr. Glenn’s brief on appeal. In its motion, the

7

School Board asserted that the attached copy contained pages not found in the

affidavit filed at the trial court level in opposition to its motion for summary

judgment. Our decision to affirm the trial court’s grant of summary judgment renders

this motion moot.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting summary

judgment in favor of the Grant Parish School Board dismissing it as a party defendant

in this litigation. We assess all costs of this appeal to James A. Glenn.

AFFIRMED.

8