Toyonicka Cormier v. Boys Town Louisiana, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-664

TOYONICKA CORMIER

VERSUS

BOYS TOWN LOUISIANA, INC.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2021-10242
HONORABLE MICHELE BILLEAUD, DISTRICT JUDGE

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WILBUR L. STILES
JUDGE

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Court composed of D. Kent Savoie, Guy E. Bradberry, and Wilbur L. Stiles, Judges.

AFFIRMED.

James R. Morris
Sudduth & Associates, LLC
1109 Pithon Street
Lake Charles, LA 70601
(337) 480-0101
COUNSEL FOR PLAINTIFF/APPELLANT:
Toyonicka Cormier

Shelton Dennis Blunt
Brittany Alexander
Phelps Dunbar LLP
400 Convention Street, Suite 1100
Baton Rouge, LA 70802
(225) 346-0285
COUNSEL FOR DEFENDANT/APPELLEE:
Boys Town Louisiana, Inc.

STILES, Judge.

Plaintiff/Appellant Toyonicka Cormier’s minor son was shot to death after he

left a residential facility owned by Defendant Boys Town Louisiana, Inc. Plaintiff

maintained that Defendant was negligent in failing to restrain her son from leaving

the facility and pursued damages associated with his death. Defendant sought

summary judgment, alleging that Plaintiff would be unable to establish it owed a

duty to physically restrain Plaintiff’s son or that the risk he encountered after his

departure from the facility was within the scope of the duty owed. The trial court

entered summary judgment in favor of Defendant. Plaintiff appeals. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff explained in her Petition for Damages that her minor son Emori1 was

convicted of a criminal offense in February 2020. Although Emori was initially

incarcerated in the Lafayette Parish Correctional Center for Youth, he was later

transferred to Defendant’s facility in Gretna, Louisiana. Plaintiff alleged that

although Defendant had a duty to detain Emori at the facility, it “negligently allowed”

him “to leave the compound and return to Acadia Parish.” Plaintiff asserted that adult

gang members thereafter shot Emori to death when he refused to join their gang. In

addition to damages for Emori’s wrongful death, Plaintiff advanced a survival action.

Defendant explained in its answer that Emori left its facility “on his own

volition” but rejected Plaintiff’s allegations of negligence. Defendant instead filed a

motion for summary judgment, asking the trial court to dismiss Plaintiff’s claims,

with prejudice, and maintained that she would be unable to prove that Defendant

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Emori was seventeen years of age at the time of the pertinent events.

breached any duty owed or that Emori’s death, which occurred in a different parish

at the hands of a third party, was within the scope of any duty owed.

Defendant supported its motion with Plaintiff’s petition, Plaintiff’s Answers

to its First Set of Interrogatories and Responses to Requests for Production of

Documents, and affidavits from its Executive Director and its Supervisor of

Intervention and Assessment Program. Defendant maintained that its facility is

residential in nature and that it did not have a duty to physically restrain Emori from

leaving the facility. Moreover, Defendant noted that Emori left its Gretna facility on

April 5, 2020, and that he died in Acadia Parish from a gunshot wound more than a

month later, on May 15, 2020. Given those circumstances, Defendant asserted, any

duty owed to Emori would not include protection from the risk encountered.

In opposition, Plaintiff attempted to introduce an excerpt of a “Request for

Proposals for Non-Medical Group Home” issued by the State of Louisiana, Office

of Juvenile Justice and an excerpt from OJJ’s “Standard Operating Procedures for

Contract Providers.” Plaintiff maintained that the documents demonstrate that Boys

Town personnel were expressly permitted to use appropriate physical force to

prevent a youth resident from “absconding from custody.”

At the hearing on the April 17, 2023 motion for summary judgment,

Defendant objected to the form of Plaintiff’s evidentiary submission. The trial court

excluded Plaintiff’s exhibits, finding that the documents were not in proper form as

they were not certified, sworn, or verified. See La.Code Civ.P. art. 966(A)(4).

On the merits, the trial court found in favor of Defendant, explaining that:

I find that there is no genuine issue of material fact that Boys
Town had a duty to physically restrain plaintiff or that the risk that Mr.
Carter would be murdered 40 days later more than 100 miles from Boys
Town, a boy’s home, would fall within the scope of that duty. I find
that the plaintiff had not proven either a duty or proximate cause of any

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damages. I find that the plaintiff had not proven either a duty or
proximate cause of any damages. In evaluating the duty element, the
inquiry is whether the plaintiff had any loss, statutory or jurisprudential,
to support her claim that a duty exists. Plaintiff has shown no legal
authority to impose a duty on a non-secure, residential facility to
physically detain its residents to prevent them from leaving. In support
of their motion, Defendant has submitted two sworn affidavits for
consideration, as well as the petition and discovery, and according to
those affidavits, the boys’ home is a community-based program, a non-
secure facility, that provides services to youth aimed at promoting
social and emotional adjustment, independent living skills, and
eliminating negative behavior. Boys Town operates in part through
social services contracts with OJJ where they reserve six beds at the
boys’ home for male youths between the ages of 12 and 18 who are in
OJJ custody. It is not the policy of Boys Town to lock doors from the
inside. Boys Town is classified as a residential home, Type 4.

....

Further, even if there was a duty, the lack of any evidence
showing a bre[a]ch of duty which then shifts the burden to the plaintiff
to provide factual support sufficient to establish a genuine issue of
material fact, and that the mover is not entitled to judgment as a matter
of law, and that plaintiff has not done that in this case. Plaintiff has
submitted no evidence to establish that Boys Town, in any way,
violated any of their own policies or were in any way negligent. In
looking at proximate cause, Plaintiff must show that the risk of harm
was within the scope of the protection afforded by the duty bre[a]ched.
Plaintiff’s son was murdered by a third party 40 days after he
voluntarily walked out of the facility, and 100 miles away from the
facility. In this case, even if there was a duty, the reason for the duty
would not be to protect Carter from a murder 40 days later, 100 miles
away. For those reasons, the motion for summary judgment is granted.

The trial court subsequently entered a summary judgment in favor of Defendant and

dismissed Plaintiff’s claim against it.2

Plaintiff appeals, questioning: 1) whether the trial court erred in refusing to

accept the Request for Procedure and Standard Operating Procedure excerpts in

opposition to the motion for summary judgment; and (2) whether the trial court erred

in finding no genuine issues of material fact.

2
The trial court granted Plaintiff leave to file a Supplemental and Amending Petition
naming OJJ as a defendant. Those proceedings are not before this court.

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DISCUSSION

Summary Judgment

Louisiana Code of Civil Procedure Article 966(A)(2) provides that the

summary judgment procedure is favored and is designed to secure the just, speedy,

and inexpensive determination of every action other than those specifically

disallowed. Accordingly, the court shall grant a motion for summary judgment “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.Code Civ.P. art. 966(A)(3).

“The burden of proof rests with the mover.” La.Code Civ.P. art. 966(D)(1). If,

however, the mover will not bear the burden of proof at trial on the matter at issue,

the mover is not required 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 claim, action, or

defense.” Id. The adverse party is thereafter required 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.” Id.

On review of Plaintiff’s arguments, we consider the trial court’s ruling on the

motion for summary judgment under the de novo standard, using the same criteria

considered by the trial court, i.e., whether there is any genuine issue of material fact,

and whether the moving party is entitled to judgment as a matter of law. Guidry v.

Brookshire Grocery Co., 19-1999 (La. 2/26/20), 289 So.3d 1026.

Motion for Summary Judgment – Documents Filed in Opposition

Plaintiff first questions the trial court’s determination that her two evidentiary

offerings in opposition to Defendant’s motion were not in proper form as they were

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not certified, sworn or verified as required by La.Code Civ.P. art. 966(A)(4). 3

Plaintiff points out that both the Request for Proposal and the Standard Operating

Procedures were produced by Defendant during discovery. She maintains that since

Defendant’s attorney signed the responses but “conveniently failed to attach a

verification[,]” further verification should not be required.

Plaintiff recognizes the appropriate consideration of La.Code Civ.P. art.

966(A)(4) but maintains that La.Code Civ.P. art. 1458(A) and La.Code Civ.P. art.

863 must also bear on the question of whether the documents were in proper form.

Pertaining to the effect of signing pleadings, La.Code Civ.P. art. 863 provides:

B. Pleadings need not be verified or accompanied by affidavit
or certificate, except as otherwise provided by law, but the signature of
an attorney or party shall constitute a certification by him that he has
read the pleading, and that to the best of his knowledge, information,
and belief formed after reasonable inquiry, he certifies all of the
following:

3
The trial court sustained Defendant’s objection to the documents, stating:

In opposition to the motion, Plaintiff submitted parts of OJJ’s request for
proposals for non-medical group homes, otherwise known as RFP, and OJJ’s
standard operating procedures for contract providers, also known as SOP. Neither
of these are in proper form and Defense objects to both. Article 966(a)(4) does
specify that proper form for supporting or opposing summary judgment evidence,
and these documents are not in that form because they are not certified, sworn, or
verified. But even if they were, they do not create a genuine issue of material fact.
First, there is nothing establishing that this particular RFP was the basis for the
contract between Boys Town and OJJ. Even if it was, the RFP simply provides
that in part, youth shall have access to treatment interventions which shall address
runaway behavior. There is no evidence to suggest that that was not done in this
case. In fact, the supervisor at Boys Town states she did attempt to stop Mr. Carter
and convince him to stay and encouraged him to make better choices. The second
document, the SOP, which, again, is not in proper form and has been identified or
that it was a document in effect with the facility at the time of the incident. It
provides one, the definition of a runaway; two, statements regarding use of force,
the program will use the least amount of force necessary to prevent and/or deter
the undesired behavior; three, the definition of physical restraint; and four, the
requirement that if physical restraint is to be used, the program will use the least
amount of force necessary to prevent and/or deter the undesired behavior; three,
the definition of physical restraint; and four, the requirement that if physical
restraint is to be used, the program will get prior approval. There is no evidence
that the SOP imposed any duty upon the defendant to use force to restrain Carter;
in fact, the duty was to use the least amount necessary. And if physical restraint
was to be used, the program would need prior approval.

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....

(3) Each allegation or other actual assertion in the pleading
has evidentiary support or, for a specifically identified allegation or
factual assertion, is likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery.

Plaintiff further notes that La.Code Civ.P. art. 1458(A) requires that “[w]hen

interrogatories are served on a specific party, that party shall verify he has read and

confirmed the answers and objections.”

Plaintiff argues that examining the above-three articles together leads to

“logical conclusions” that: “a. If an interrogatory is served on a specific party, he/she

must attach a written verification[;] and “b. If an interrogatory is not served on a

specific party, but instead is served on a corporation which cannot sign a verification,

its attorney’s signature, by virtue of Article 863, attests to the accuracy sufficiently,

without a verification.” Plaintiff thus concludes that since Defendant’s discovery

responses were not accompanied by a signed verification, Defense counsel’s

signature attested to the accuracy of the response and was sufficient per La.Code

Civ.P. art. 863.

This argument lacks merit. Instead, the trial court correctly identified the clear

and specific language of La.Code Civ.P. art. 966(A)(4) as controlling. At the time

of the hearing, Article 966(A)(4) provided in pertinent part that “[t]he only

documents that may be filed in support of or in opposition to the motion [for

summary judgment] are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions.” 4

4
Following the signing of the May 4, 2023 judgment under review, the legislature amended
Article 966(A) to expand the exclusive list of documents that may be filed and offered in support
of or in opposition to a motion for summary judgment to include “certified copies of public
documents or public records, certified copies of insurance policies, authentic acts, private acts duly

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The 2015 Comments to La.Code Civ.P. art. 966 reiterate that Subparagraph(A)(4)

“contains the exclusive list of documents that may be filed in support of or in

opposition to a motion for summary judgment.” La.Code Civ.P. art. 966 cmt. (b).

The Comments likewise indicate that the Subparagraph “intentionally does not allow

the filing of documents that are not included in the exclusive list, such as . . .

contracts, unless they are properly authenticated by an affidavit or deposition to

which they are attached.” Id. (Emphasis added).

Plaintiff’s exhibits were not authenticated by any of the designated methods.

While Plaintiff attempts to recruit La.Code arts. 863 and 1458 into the pertinent

analysis due to the documents having been produced during discovery, we point out

that La.Code Civ.P. art. 966(A)(4) allows for various avenues for their submission.

Plaintiff did not submit the exhibits within such a context, however, and submitted

only bare excerpts from two OJJ documents pertaining to residential facilities. The

trial court correctly identified the meager offering as being outside the parameters

of La.Code Civ.P. art. 966(A)(4). See also Nettle v. Nettle, 15-1875, p. 5 (La.App.1

Cir. 9/16/16), 212 So.3d 1180, 1183 (“Louisiana Code of Civil Procedure articles

966 and 967 do not permit a party to utilize unsworn and unverified documents as

summary judgment evidence. Thus, a document that is not an affidavit or sworn to

in any way, or is not certified or attached to an affidavit, has no evidentiary value on

a motion for summary judgment.”), writ denied sub nom., Nettle v. Succession of

Nettle, 16-1846 (La. 12/16/16), 212 So.3d 1170.

acknowledged, promissory notes and assignments thereof.” 2023 La. Acts No. 317, § 1. The
amendment became effective on August 1, 2023.

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Motion for Summary Judgment - Merits

As applicable to negligence suits, La.Civ.Code art. 2315 provides that

“[e]very act whatever of man that causes damage to another obliges him by whose

fault it happened to repair it.” The supreme court has further explained that tort

liability requires a plaintiff to establish that 1) the conduct in question was the cause-

in-fact of the resulting harm, 2) the defendant owed a duty of care to the plaintiff, 3)

the defendant breached the requisite duty, and 4) the risk of harm was within the

scope of protection afforded by the duty breached. Lazard v. Foti, 02-2888 (La.

10/21/03), 859 So.2d 656.

Plaintiff questions the trial court’s determination that she failed to establish

genuine issues of material fact as to the elements of either the duty owed or the scope

of the duty owed. Plaintiff’s failure to oppose the motion with exhibits suitable under

La.Code Civ.P. art. 966(A)(4) is fatal to her arguments as to both elements, however.

Namely, Plaintiff submits that had the trial court admitted, reviewed, and

properly interpreted the Request for Proposals and Standard Operating Procedures,

it would have seen that these documents demonstrate that Defendant had a duty to

know where Emori was at all times and had the authority to use appropriate physical

force to prevent him from leaving the facility.

Notwithstanding its objection to Plaintiff’s exhibits, Defendant maintained

that it had no duty to physically restrain Emori in order to prevent him from eloping

and attached the affidavit of its Executive Director, Rashain Carriere, who explained

that Boys Town’s facility is operated in part through a social services contract and

that the Gretna facility reserves numerous beds “for male youth between the ages of

12 and 18 who are in OJJ custody.” The Louisiana Department of Children and

Family Services classifies the Gretna facility as a Residential Home. It is not a

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juvenile detention facility but “is a non-secure residential facility that provides

services to youth aimed at promoting social and emotional adjustment, independent

living skills, and eliminating negative behavioral patterns.” Director Carriere

explained that it is “not policy” to lock the facility’s doors from the inside.

Defendant additionally introduced the affidavit of Kim Richard, its Supervisor

of the Intervention and Assessment Program at the Gretna facility. Supervisor

Richard stated that, on April 5, 2020, Emori expressed an intent to leave the facility

but that she attempted to convince him to stay at the facility “and encouraged him to

make better choices.” She explained that Emori refused and “ran out the back door”

of the facility. She immediately notified other Boys Town personnel, called the

Jefferson Parish Sheriff’s Office, and notified OJJ that Emori had left the facility.

In opposition, Plaintiff relied only upon the two subsequently excluded

exhibits as she does again on appeal. Plaintiff suggests that examination of the

documents would have revealed genuine issues of material fact as, she argues, they

indicate that the use of physical force may be appropriate in order to prevent a youth

from leaving the facility’s custody. Those documents, however, are not within the

exclusive list designated by La.Code Civ.P. art. 966(A)(4)(a) as correctly identified

by the trial court.

Plaintiff was left with no factual support, let alone support indicating that

Defendant owed the purported duty to lock its doors from the inside or to physically

restrain seventeen-year-old Emori from leaving the facility. As the adverse party,

La.Code Civ.P. art. 966(D)(1) required Plaintiff “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.” (Emphasis added.)

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On appeal, Plaintiff again shapes her argument with reference to the excluded

exhibits. Nonetheless, La.Code Civ.P. art. 966(D)(2) provides that “[t]he court shall

consider only those documents filed or referenced in support of or in opposition to

the motion for summary judgment but shall not consider any document that is

excluded pursuant to a timely filed objection.” Plaintiff simply has presented no

permissible documents and must necessarily rely on pleadings.

However, when a moving party has supported its motion for summary

judgment by appropriate affidavits, as in this case, “an adverse party may not rest on

the mere allegations or denials of his pleading, but his response, by affidavits or as

otherwise provided [], must set forth specific facts showing that there is a genuine

issue for trial.” La.Code Civ.P. art. 967(B). If the adverse party fails to do so,

“summary judgment, if appropriate, shall be rendered against him.” Id.

Given the Plaintiff’s failure to present adequate factual support, we find that

the trial court correctly identified that Plaintiff did not establish the duty element.

For that same reason, the trial court further correctly recognized that, even if

Defendant had a duty to act, the Plaintiff has not established that such a duty

extended to protect Emori from the harm encountered under the circumstances

presented.

The supreme court has explained that the inquiry surrounding the scope of the

duty element is “fact sensitive and ultimately turns on a question of policy as to

whether the particular risk falls within the scope of the duty.” Malta v. Herbert S.

Hiller Corp., 21-209, pp. 17-18 (La. 12/10/21), 333 So.3d 384, 399 (citing Roberts

v. Benoit, 605 So.2d 1032 (La.1991)). In some instances, a risk of harm “may not be

found within the scope of a duty where the circumstances of that particular injury to

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that plaintiff could not be reasonably foreseen or anticipated because there was no

ease of association between that risk and the legal duty.” Id.

Supervisor Richard’s affidavit indicates that she attempted to convince Emori

to stay after he expressed an intent to leave the residential facility on April 5, 2020,

but that he refused and ran from the premises. She immediately notified Boys Town

personnel, the Jefferson Parish Sheriff’s Office, and OJJ of Emori’s departure.

Plaintiff’s Answers to Interrogatories, which Defendant also submitted as an exhibit,

indicate that Emori died of a gunshot wound more than a month later, on May 15,

2020, in Crowley, Louisiana located in Acadia Parish.

As with the duty element, Plaintiff offered no admissible factual support in

opposition that would indicate that the risk encountered by Emori could have been

reasonably foreseen by personnel at the Boys Town facility. Rather, Defendant’s

submission revealing the circumstances of time, physical distance, and third-party

criminal intervention undermine Plaintiff’s assertion that genuine issues of material

fact exist in that regard. See Lazard, 859 So.2d 656 (wherein the supreme court

determined that the scope of a sheriff’s duty to transfer a juvenile detained in an

adult facility to an appropriate juvenile detention center did not extend to the risk

that the juvenile would be killed almost twelve hours after his release from custody).

For these reasons, we maintain the trial court’s ruling.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this proceeding are assessed to Plaintiff/Appellant Toyonicka Cormier.

AFFIRMED.

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