Alton Jiles O/B/O Kayla Jiles v. Wilton Anthony

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1077

ALTON JILES O/B/O KAYLA JILES

VERSUS

WILTON ANTHONY, ET AL.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 62,507
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and
James T. Genovese, Judges.

AFFIRMED.

Harold Dean Lucius, Jr.
Law Office of Kirby D. Kelly
515 Spring Street
Shreveport, LA 71101
(318) 459-1885
COUNSEL FOR PLAINTIFF/APPELLANT:
Alton Jiles

Joseph P. Landreneau
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANTS/APPELLEES:
GuideOne Mutual Insurance Co.
Wilton Anthony
Siloam Baptist Church

EZELL, Judge

Alton Jiles, on behalf of his daughter, Kayla, appeals the granting of summary

judgment in favor of Wilton Anthony, Siloam Baptist Church, and its insurer,

GuideOne Mutual Insurance Company (hereinafter collectively referred to as the

Church). For the following reasons, we hereby affirm the decision of the trial court.

On February 4, 2009, Alton and Constance Jiles dropped Kayla off at Siloam

Baptist Church for Wednesday night youth services. While there, Kayla went to the

Church’s basketball court to play a game. During the course of the game, another

child pushed Kayla. After she pushed him back, the other child pushed her again and

Kayla fell to the concrete, severely injuring her hand. The Jileses filed suit against the

Church, alleging it was negligent in its supervision of the children. The Church filed

a motion for summary judgment which was granted by the trial court, dismissing the

Jileses claims. From that decision, the Jileses appeal.

The Jileses assert three assignments of error on appeal. They claim that the trial

court erred in granting the summary judgment; that the trial court granted the

summary judgment based on an incomplete record; and that the trial court erred in

ruling a claim for failure to pay med pay insurance benefits was not properly before it

at the hearing on the motion for summary judgment.

Appellate courts review summary judgments de novo, using the same
criteria that govern the trial court’s consideration of whether summary
judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136, p. 5
(La.11/28/01), 800 So.2d 783, 788. Summary judgment shall be rendered
if there is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. La.Code Civ. Pro. art. 966(B); Goins, at p. 6,
800 So.2d at 788. The movants . . . have the burden of proof. La.Code
Civ. Pro. art. 966(C)(2). However, if the movant will not bear the burden
of proof at trial, its burden on the motion does not require it to negate all
essential elements of the adverse party’s action, but rather to 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. La.Code Civ. Pro. art.
966(C)(2). Thereafter, if the adverse party fails to produce factual

support sufficient to establish they will be able to satisfy their evidentiary
burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ. Pro. art. 966(C)(2). Because it is the applicable substantive
law that determines materiality, whether a particular fact in dispute is
“material” for summary judgment purposes can be seen only in light of
the substantive law applicable to the case.

Richard v. Hall, 03-1488, pp. 4-5 (La. 4/23/04), 874 So.2d 131, 137.

We will first address the Jileses’ third assignment of error, as it concerns the

completeness of the record before this court. The Jileses assert that the record is

incomplete because the entire deposition of Alton Jiles was not entered into the record

in lieu of an excerpt. The trial transcript indicates that when counsel for the Church

attempted to introduce excerpts for all three Jileses family members testifying,

counsel for the Jileses asked that entire deposition transcripts be introduced instead.

The trial court accepted the full deposition transcripts of Kayla and Constance, which

were offered by the Jileses’ attorney. Apparently, no one had a full transcript for

Alton, and the trial court admitted the evidence presented it. It did not order counsel

for the Church to admit the full transcript for Alton as alleged by the Jileses.

Moreover, what is in the record indicates that Mr. Jiles was not at the Church at the

time of the push and could not have given any relevant evidence concerning the issue

in dispute. Moreover, the Jileses do not even assert any benefit that his additional

testimony would have provided. We find no merit in this assignment of error.

The Jileses next assert that the trial court erred in granting the Church’s motion

for summary judgment. We disagree. The Jileses make no allegations that there were

any deficiencies in the basketball court itself and admit there was no inherently

dangerous activity taking place on the court prior to the push. Instead, they assert that

discrepancies of fact concerning the time of Kayla’s arrival or whether or not she ate

gumbo at the church are material to this dispute. They are not. The sole issue before

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us is whether additional supervision could have prevented Kayla’s injuries. The

record before this court indicates it would not have.

The vast majority of Louisiana courts have found no liability on the part of

school boards, homeowners, and the like for fights occurring between children where

adults could not have prevented the incidents from transpiring. See Wallmuth v.

Rapides Parish Sch. Bd., 01-1779, 01-1780 (La. 4/3/02), 813 So.2d 341; Blacklege v.

Font, 06-1092 (La.App. 1 Cir. 3/23/07), 960 So.2d 99. The evidence in this case

shows that the push occurred quickly and spontaneously, such that Kayla’s friends in

the immediate vicinity were powerless to stop it. Furthermore, there had been no

history of prior problems between the children to indicate such an act of aggression

should be foreseen. The push, while unfortunate, was the impulsive act of a child and

could not have been prevented. The Jileses have offered no proof whatsoever that the

presence of adults on the basketball court could have prevented the actions of the boy

that injured Kayla. In fact, the Jileses themselves admit that it was unanticipated and

so sudden that bystanders were unable to prevent Kayla’s fall. Because they did not

establish any causal connection between the lack of supervision and the accident, they

cannot meet their burden of proof at trial, and the trial court made no error in granting

the Church’s summary judgment.

Finally, the Jileses’ claim that the trial court erred in ruling that a claim for med

pay insurance recovery was not plead, but raised collaterally. Again, we disagree.

The Jileses’ petition states that the Church “maintained a general liability and med

pay policy” with its insurer, GuideOne Mutual. Nowhere in that petition or in their

amended petition do the Jileses allege any failure to pay med pay benefits. Any claim

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for failure to pay such benefits was not properly before the trial court at the time of

the granting of the summary judgment. This assignment of error is also without merit.1

For the above reasons, we hereby affirm the decision of the trial court. Costs of

this appeal are hereby assessed against the Jileses.

AFFIRMED

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
RulesCCourts of Appeal. Rules 2n16.3.

1
Moreover, the trial transcript indicates that the maximum benefits allowed under the policy
had already been paid to one of the hospitals providing care to Kayla.

4