Manders v. SingletonManders v. Singleton
Margot A. Tillman-Fleet, Deputy Gen. Counsel, Louisiana Dept. of Educ., Baton Rouge, for Louisiana Dept. of Educ., defendant-appellee.
Plaintiffs appeal from the summary judgment dismissal of the Louisiana Department of Education as a tort defendant in this suit. We reverse.
Plaintiff, Susan H. Neathamer, was employed as a physical education teacher at Livaudais Junior High School in Jefferson Parish, Louisiana. On February 25, 1987 during her second period physical education class she injured her back while attempting
Neathamer and her husband, James D. Manders, sued the students and their parents, claiming that during the fight, Nicole Singleton accidentally or intentionally fell against Neathamer and knocked her down.
Plaintiffs sued the Jefferson Parish School Board and the Louisiana Department of Education, “Department“. They contended that when the fight broke out there were 63 students in Neathamer‘s class, despite the Louisiana Handbook for School Administrators dictate that the maximum size for health and physical education classes in grades K through 8 shall be 40 students. Plaintiffs claimed that the large size of the class directly contributed to the fight and Neathamer‘s injury.
At its motion for summary judgment, the Department argued that it had fulfilled the duty owed to Neathamer with respect to maximum class size. Mover introduced annual school reports to show that excess class size, identified in 1985, had been reduced as of September, 1986. In opposition to the motion plaintiffs argued that the Department had granted the School Board a waiver, which effectively permitted additional class enrollment.
The district judge found in favor of the Department, reasoning that plaintiffs had not produced evidence in the form of a counter-affidavit to verify their allegations of excess class size. On appeal, plaintiffs argue that where the record contains no affidavit by mover, they are not obliged to file a counter affidavit. They reurge the contention that certain material issues of fact preclude the grant of summary judgment. We agree.
The well-settled rule is that a motion for summary judgment is granted if, and only if, the pleadings, depositions, answers to interrogatories, 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.
The court must test the efficacy of the motion for summary judgment by closely scrutinizing the mover‘s pleadings, while treating those of the opposing party indulgently. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). Summary procedure must be used cautiously and sparingly. Judgment can be granted only when reasonable minds must inevitably conclude that mover is legally entitled to judgment on the facts before the court. Lucey v. Harris, 490 So.2d 416 (La.App. 5 Cir.1986).
The district court‘s grant of summary judgment was based on plaintiffs’ failure to adequately rebut the Department‘s proof. With all due respect, we believe that the district judge‘s decision was based on assumptions rather than uncontested facts and that he misapplied the statutorily imposed burden of proof on the motion.
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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided
The party opposing the motion for summary judgment is not in every instance required to file a counter-affidavit or other receivable evidence. The court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not the motion must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Parker v. Sears, Roebuck & Co., 418 So.2d 1361 (La.App. 2nd Cir.1982), on rehearing. Here the supporting documents in question were not sufficient to resolve all material fact issues and the trial judge erred in granting the motion for summary judgment.
Plaintiffs’ claim against the Department is grounded in negligence, and liability if any is founded on the duty-risk analysis.
In response to these allegations, the Department admitted its obligation to monitor the class size of public schools within its jurisdiction.
Moreover, these documents did not resolve the existing material issues of fact. The Department did not introduce a certified document or verified statement reflecting the number of students enrolled or present in Neathamer‘s second period physical education class on February 25, 1987. Nor did mover produce the Louisiana Handbook for School Administrators, on which it relied in memorandum to limit its obligation to monitor class enrollment, and its duty toward Neathamer. The record reflects that the following questions of fact remain unanswered: How many students were enrolled in the second period physical education class on February 25, 1987? If the number exceeded the maximum allowed, was the Department or should it have been aware of this non-compliance? What action should the Department have
The judgment of the district court in favor of the Louisiana Department of Education is reversed and the case is remanded for further proceedings. Costs of the appeal are referred to the merits.
REVERSED AND REMANDED.