source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF E.M.J.
    No. 52,082-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    VARHONDA E. BURRELL, Counsel for Defendant-Appellant, Mother
    JOHNNY L. SANDERS, Counsel for Plaintiff-Appellee, State of Louisiana
    SCOTTY W. LOWERY, Bastrop, Counsel for Plaintiff-Appellee, E.M.J.
    LAYNE M. ADAMS, Monroe, Counsel for Defendant-Appellee, Father
    Before STONE, COX, and MCCALLUM, JJ.
   COX, J.

Appellant, Renatta Phillips Jones ("Jones"), appeals a judgment from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, wherein the trial court found she had not successfully completed her case plan and changed the goal from reunification to adoption, in accordance with the best interest of the child. Jones contends that the trial court erred in ruling that she had not completed her case plan and ignoring the plain language of La. Ch. C. art. 702(C). She requests that the goal be changed back to reunification. For the following reasons, we affirm the ruling of the trial court.

FACTS

On May 18, 2015, the Department of Children and Family Services ("DCFS") received a report of a drug-affected newborn; Jones and her newborn son had tested positive for cocaine. DCFS contacted Jones at St. Francis Medical Center in Monroe, where she admitted to using cocaine two weeks prior to giving birth and smoking marijuana 30 days prior to going into labor. The father of the child, Eduardo Montalvo ("Montalvo"), was incarcerated at the time of his son's birth due to the violation of a protective order on Jones.

DCFS requested an instanter order for the removal of the child from the parents'

custody. The order was granted, and the child entered the State's temporary custody on May 27, 2015. The following day, a Court Appointed Special Advocate ("CASA") was assigned to represent the best interest of the child.

A continued custody hearing was held on May 28, 2015, and the parents stipulated to DCFS maintaining custody of the child, without admitting to the allegations set forth in the instanter order. The trial court approved the stipulation, and a case plan was put into place for both parents. The case plan was approved by the trial court on August 10, 2015, along with increased supervised visitation.

Martha Tippett, the CASA Volunteer, submitted her first report to the trial court on November 5, 2015. She recommended that the child remain in the State's care until Jones had established a longer record of sobriety and Montalvo had completed the Batterer's Intervention Program with positive results. The recommendation was based on Jones' long history of neglect and drug abuse and Montalvo's history of alcohol and domestic violence. Tippett reported that Jones was working her case plan, attending visits with the child, and living with Montalvo in a small trailer. Tippett stated that although the couple had everything necessary to care for the child, she was concerned about the size of the home for two adults and a child. At this time, Jones' urine drug screens were negative.

A second continued custody hearing was held on November 9, 2015. Takesha DeBurr, an employee of DCFS, testified that both parents were doing well on their case plans; however, there was still concern about their extensive history with the agency. She stated that they requested a hair sample from Jones, but she declined due to religious reasons. The trial court requested a hair sample before a transition to unsupervised visitation would be approved.

A review hearing was held on January 11, 2016. CASA recommended that supervised visits in the home continue and the child remain in the State's care. Jones' results from hair follicle and urine drug screens were negative. The trial court suggested that both parents attend Celebrate Recovery at least once a week.

On May 23, 2016, an initial permanency hearing was held. CASA maintained their previous recommendation, noting that Montalvo had tested positive for cocaine. CASA additionally reported that Jones had begun working at Bancroft Corporation in March. The trial court stated that Jones appeared to be on the right path, but was concerned about Montalvo's substance abuse, as well as the size of their home. The goal of reunification was extended.

On November 4, 2016, CASA's report recommended the goal be changed from reunification to adoption due to Montalvo's continued use of alcohol. CASA was also concerned that Jones and Montalvo continued to live together. DCFS agreed with CASA's recommendation due to noncompliance with the case plan based on issues dealing with substance abuse and "not being forthcoming [about] life situations." DCFS noted that Jones was currently on medical leave due to a work-related injury; Jones tested positive for opiates; and, Montalvo received a DWI.

A review hearing was held on November 28, 2016, and Takesha DeBurr testified that the parties had not been honest about their current living situation. The couple had allegedly stated that they separated after Montalvo's DWI, but CASA reported seeing his vehicle at the home on several occasions. It was also reported that Jones was with Montalvo when he received his DWI, which raised concerns for the child's safety. DeBurr stated that Jones was not attending Celebrate Recovery or AA due to her work schedule. The child's attorney stated that he was concerned for the child's wellbeing, but could not concur with CASA or DCFS as the case was not in a procedural posture to change the goal at that time. The trial court agreed and a permanency hearing was set.

On May 22, 2017, DCFS sent a follow-up report to the trial court. The report stated that Jones was released from her job with Bancroft due to her injury; however, she was now working with Mike Glenn painting homes and businesses. Montalvo, who was employed with James Machine, had also suffered an injury and had been unable to work for the past three months. As of April 19, 2017, Jones tested positive for opiates and codeine. Again, DCFS recommended that the goal be changed to adoption. CASA agreed with the recommendation, noting that the child had been in foster care for two years, and the drinking and domestic problems were still existent in the home.

In a report dated July 21, 2017, DCFS recommended that the goal remain reunification, and the child begin transitioning into the parents' home. Jones had provided documentation of the prescribed medication for her back injury that contained opiates and codeine. DCFS reported that Jones and Montalvo had completed a significant portion of their case plan. CASA, on the other hand, still believed the goal should be changed to adoption. Although Jones and Montalvo had reportedly worked their case plans and completed the necessary programs, there was still continued drug and alcohol use in the home. The parents had attended AA, but the sign-in sheets were sporadic and neither parent had a sponsor until April or May of 2017.

A permanency hearing took place on July 24, 2017, before Judge Marchman. Takesha DeBurr was the first to testify. At the outset, DeBurr testified that the agency asked Jones to complete classes in parenting, mental health assessment, domestic violence, substance abuse assessment, and to maintain income and stable housing. DeBurr testified that Jones completed her classes and was still taking continuing classes, such as substance abuse after care and family and marriage counseling. DeBurr stated that Jones' last positive drug screen was in May, but she was able to provide medical documentation for her prescription; Montalvo's last positive drug screen was over a year ago. She recommended that the goal remain reunification.

On cross-examination, DeBurr testified that both parents had been attending AA/NA about three times per week. She stated that only Jones was working at the time because Montalvo was injured, but her income was sufficient to support the family. Although the interior of the home was safe for the child, DeBurr expressed that the front porch and yard were not safe. DeBurr communicated that both parties were taking prescription medications for their injuries. She also pointed out that Montalvo had a change of plea scheduled for his DWI in September, but she was unaware whether he was changing it from not guilty to guilty. She noted that Dr. Hanser, with whom Montalvo completed the Batterer's Intervention Program, reported that the couple had numerous challenges which could serve as triggers for potential abuse in the future. Finally, DeBurr affirmed that she had received reports that Jones had picked up the child for visits without the knowledge of the monitor and left the child with other people while she gambled.

Jones testified next. She stated she makes $12/hour painting houses for Mike Glenn; she works anywhere between 30 and 40 hours per week. She testified that James Machine was holding Montalvo's job for him while he was injured, and he made $20/hour when working. Jones said she was previously injured on November 1, 2016, while working at Bancroft Corporation. She testified that she began seeing Dr. Douglas Brown, who diagnosed her with spondylosis, spinal stenosis, degenerative disc disease, and bulging discs on sciatic nerves. She was prescribed Tylenol 3 with codeine. Jones stated she also goes to another doctor for a different type of medical condition.

On cross-examination, Jones testified that Montalvo had originally entered a not guilty plea to his DWI charge. She stated she continues to take pain medication for her back, but her injury is not so severe that it keeps her from working.

Upon examination by the trial court, Jones asserted that she only takes the Tylenol 3 as needed. She stated that the couple was not attending Celebrate Recovery because they did not have an elevator, and Montalvo was unable to climb the stairs due to his injury.

The trial court found that the parents' compliance with their case plan was unsatisfactory. It stated that Montalvo's pending DWI was a problem, as well as the fact that Jones was in the vehicle when it occurred. The trial court noted that there were still things that had not been completed, but the biggest problem was that the child had been in the State's custody for over two years. Although progress had been made, the trial court was still concerned about the couple's history of substance abuse and the lack of stability over the years. The trial court found that continuing the goal of reunification for another 90 days was in the best interest of the child. She informed both parties that this 90-day extension was all they would receive.

The final permanency hearing took place on October 30, 2017, before Judge Marchman. Takesha DeBurr testified that DCFS's recommendation remained reunification, with a slow transition into the family home. She stated that although Montalvo had previously tested positive for illegal drugs, he had a prescription for them. She also stated he was attending AA meetings at least once a week.

On cross-examination, DeBurr affirmed that Montalvo had tested positive for oxymorphone on October 13, 2017, but stated he was weaning off of the drug after surgery and was no longer taking the drug. It was also noted that Montalvo received a 7-day prescription for Percocet on February 28, 2017, but was still seeing the doctor to receive the medication.

Upon examination by the trial court, DeBurr stated that Montalvo does not have a current prescription for opiates, but had a positive hair test for the drug on October 13, 2017; he could not provide an explanation. She testified that Jones had only provided two AA meeting slips for the month of October, and Montalvo had not provided any slips for AA meetings.

Jones was the last to testify. She stated that she continued to suffer back and leg pain as a result of her work injury and a car accident, and was prescribed hydrocodone and Flexeril. Additionally, injections she received in her back caused nerve damage, and she takes gabapentin every day.

In August 2017, Jones began experiencing severe chest pains and passed out. She was rushed to the emergency room and admitted to the hospital for one week, where she received morphine for the pain. Jones described her heart condition as super ventricular tachycardia, where her "heart goes up over [165 beats per minute] and I pass out." Her other symptoms include nausea, heat flush, and weakness. Jones stated that she had a heart catheter, but something was wrong with the ablation machine so she had to reschedule the appointment for the palpitation treatment.

With regard to the gap in the AA/NA sheets, Jones testified that she had misplaced several of her sheets. She also noted that she was in the hospital for two weeks. She stated she and Montalvo attend Celebrate Recovery every Friday night.

On cross-examination, Jones discussed Montalvo's injury and medication. She stated he broke his heel in February or March 2017 and had surgery in April. He was prescribed hydrocodone, which was not strong enough, so he was switched to oxycodone. She believed he stopped taking the medication in July. At this time, he had returned to work.

Jones asserted that she continues to take 10 milligrams of hydrocodone once or twice a day, if needed. She additionally takes Prozac and Vistaril as needed. She stated she was not currently taking anything for her heart condition, although she experiences her symptoms around once a week. Jones clarified that her pain and symptoms do not affect her work, as she does not lift anything heavy; her doctor told her she is not supposed to lift more than 20 pounds.

The trial court noted that the evidence was contradictory as to what procedures and medication were prescribed. Although the court believed the parents had completed a great deal of their case plan, the judge ultimately found it had not been completed and changed the goal from reunification to adoption. The trial court pointed out there were still issues with Montalvo's pending DWI, Jones' health concerns, and both parent's use of narcotic pain medication. Due to the fact that the child had been in custody for nearly three years, the judge believed that a permanent plan of adoption was the most appropriate and least restrictive under the circumstances, and also in the child's best interest. Jones appealed.

DISCUSSION

In her first assignment of error, Jones argues that the trial court committed manifest error when it ruled that she had not completed her case plan.

In order to reverse a trial court's permanency plan determination, an appellate court must find from the record that the trial court's finding is clearly wrong or manifestly erroneous. State in Int. of N.B., 51,374 (La. App. 2 Cir. 2/15/17), 215 So.3d 398. To reverse a fact-finder's determination under the manifest error standard, an appellate court must engage in a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact, and (2) the court must further determine that the record establishes a finding that is clearly wrong. Middlebrooks v. City of Bastrop , 51,073 (La. App. 2 Cir. 1/11/17), 211 So.3d 1231, writ denied sub nom. Middlebrooks o/b/o Middlebrooks v. City of Bastrop , 2017-0268 (La. 5/1/17), 219 So.3d 331.

Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. If the court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. State in Int. of E.M. , 51,511 (La. App. 2 Cir. 6/2/17), 224 So.3d 1122.

The health, safety, and best interests of the child are the paramount concerns in all child in need of care proceedings. State in Int. of N.B. , supra . Mere cooperation by a parent is not the sole focus of a permanency plan. The court must assess whether the parent has exhibited significant improvement in the particulars that caused the State to remove the child from the parent's care. Stability in the home environment and relationships are considerations in the permanency plan determination. A parent who asserts an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated. State in Int. of P.B. , 49,668 (La. App. 2 Cir. 12/17/14), 154 So.3d 806.

Lack of parental compliance with a case plan may be evidenced by one or more of the following: (1) the parent's failure to attend court-approved scheduled visitations with the child; (2) the parent's failure to communicate with the child; (3) the parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services; (4) the parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan; (5) the parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan; (6) the parent's lack of substantial improvement in redressing the problems preventing reunification; and, (7) the persistence of conditions that led to removal or similar potentially harmful conditions. La. Ch. C. art. 1036(C).

It is clear from the record that the trial did not commit manifest error in ruling that Jones had not completed her case plan. Although both parents successfully completed a large portion of their case plans, there were still issues that remained unresolved. Montalvo's pending DWI is a large concern as it is his second DWI offense and leaves the Court unsure whether or not he will serve time in jail. With Jones' looming health issues, it would be worrisome if the child were left alone in her care and she were to experience a medical emergency. Additionally, Montalvo's continued use of alcohol and pain medication is unsettling.

With regards to Jones' own pain medication usage, this Court believes that the trial court correctly noted that there appears to be some drug-seeking behavior. While she did provide documentation for her medications, she continued to take these medications long after her injuries. She also went to different doctors, which indicates drug-seeking behavior. As Jones' substance abuse was the initial cause that led to the child being removed from her care, this is worrisome.

Furthermore, Jones' heart problems raise concern. If she is passing out and being rushed to the hospital once a week, this leaves the child to fend for himself, especially if the father receives jail time. Jones' back pain is also an issue since her doctor recommended she not lift more than 20 pounds. This recommendation will likely prevent her from being able to lift and carry the child.

Both parents also failed to comply with the required program of treatment and rehabilitation services provided in the case plan. The trial court recommended that they attend Celebrate Recovery, which they did for only a short time. Jones stated they stopped attending due to Montalvo's injury because he was unable to climb the stairs. However, the trial court informed Jones that Celebrate Recovery was provided at more than one location. Both Jones and Montalvo still failed to attend. Moreover, the attendance at AA/NA meetings was sparse. Neither parent received a sponsor until April or May 2017. Their sparse sign-in sheets indicate that they were not attending.

Based on these factors, it is clear Jones did not successfully complete her case plan. Many issues remained unresolved, which raised concerns for the child's safety and well-being. Accordingly, the trial court did not commit manifest error in finding that Jones had not completed her case plan.

In her second assignment of error, Jones argues that the trial court committed manifest error by ignoring the plain language of La. Ch. C. art. 702(C), which reads:

The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2) Adoption.

In order for reunification to remain the permanent plan, Jones was required to comply with the case plan and make measurable progress toward achieving its goals. As stated above, Jones had not successfully completed her case plan. Therefore, reunification did not need to remain the permanent plan for the child in accordance with the child's age and need for a safe and permanent home. The trial court noted that the child had been in the State's care for almost three years. Under La. Ch. C. art. 702(C), the next placement option was adoption. Thus, the trial court did not ignore the plain language of this article, and it was correct in placing the child for adoption.

CONCLUSION

Based on the foregoing reasons, we affirm the ruling of the trial court. Jones had not successfully completed her case plan in over two years, as many issues concerning substance abuse, her health, and her relationship with Montalvo remained unresolved. All costs of this proceeding are to be paid by Appellant, Renatta Phillips Jones.

AFFIRMED.

      Jones' parental rights have previously been terminated on three of her children, who were freed for adoption on October 27, 2014. Jones also has one child who is still in foster care with the goal of alternate permanent living arrangements.

      Jones testified that she does not cut her hair due to her Pentecostal religion.


author: STEPHENS, J.

text:
    Janella DAVIS, Respondent v. HIXSON AUTOPLEX OF MONROE, L.L.C., Applicant
    No. 51,991-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    VILAR & GREEN, L.L.C., By: Mark F. Vilar, Aaron L. Green, Alexandria, Counsel for Applicant
    VARHONDA E. BURRELL, Counsel for Respondent
    Before BROWN, GARRETT, and STEPHENS, JJ.
   STEPHENS, J.

Defendant, Hixson Autoplex of Monroe, LLC, filed a writ application in this court following the denial of its motion for summary judgment by the Monroe City Court, Parish of Ouachita, State of Louisiana, in a lawsuit for damages brought by Janella Davis. The writ was granted to docket. For the following reasons, we grant the writ, reverse the trial court and grant defendant's motion for summary judgment, dismissing Davis's suit with prejudice.

FACTS

Davis filed a petition for damages on July 21, 2016, alleging that Hixson Autoplex of Monroe, LLC ("Hixson"), failed to properly diagnose problems with her 2006 BMW 5 Series (the "vehicle") and its failure to do so resulted in further damage to the vehicle. In response, Hixson filed a dilatory exception of vagueness which resulted in the parties entering into a consent judgment to clarify that the sole act of negligence alleged by Davis is "failure to diagnose the problem of the vehicle." Hixson subsequently filed an answer denying the allegations and a motion for summary judgment asserting Davis would not be able to meet her burden at trial. That motion was denied and Hixson sought a supervisory writ, which this court granted to docket.

The vehicle was purchased by Davis in 2014 for $13,670.00 and had a history of repairs prior to Davis purchasing it. On June 21 or 22 of 2015, Davis noticed a temperature warning light appear while driving the vehicle, and she had it towed to Hixson. John Wheat, a certified master technician employed by Hixson, inspected the vehicle and found there was a leak at the coolant pump and the radiator cap was faulty. With Davis's approval, Wheat replaced the coolant pump, thermostat, radiator cap, vent pipe, and hose clamp for a total cost of $1,550.00 to Davis.

The vehicle continued to give the same temperature warning, causing Davis to have it towed and inspected twice more, on July 6 and 9, 2015. On July 6, Davis was told the problem was resolved by adding another clamp on a hose, and on July 9, she was told the problem was an air pocket because they did not see where coolant was leaking. On July 10, 2015, the engine light came on. Hixson was unable to inspect the vehicle the following day because it was a Saturday. The engine light subsequently went off.

Then on July 16, 2015, the engine light came back on, and the vehicle began vibrating. Davis drove it to Hixson where an inspection revealed that on one occasion the vehicle exhibited a permanent fault caused by a misfire with cylinder cutout. Davis was told the problem was unrelated to the prior coolant problem and was probably caused by a faulty ignition coil. No work by Hixson was performed at this time.

The next day, the coolant light came on, and Davis's husband returned the vehicle to Hixson. Hixson was unable to detect a leak, so it placed dye in the car in an attempt to determine where the coolant was going. By the time Davis's husband got home, he observed no coolant remained in the vehicle.

On July 20, 2015, Davis's husband added coolant to the vehicle at which time white smoke appeared; they had the vehicle towed back to Hixson. Wheat inspected the vehicle and determined that due to the continued problems with the coolant system, the next step to address the issue was to completely disassemble and inspect the entire coolant system. Hixson estimated it would cost approximately $1,500.00 to have the entire coolant system disassembled for diagnosis. Davis claims Hixson informed her at this time that it believed the vehicle may have a cracked head from when it initially came to Hixson and it was the engine that needed to be broken down for diagnosis, not the coolant system. Either way, Davis did not authorize the work by Hixson and none was performed.

Davis subsequently took the vehicle to another repairmen, Sedric Bosley, who disassembled the engine and discovered the engine block was cracked which required the engine to be replaced. Davis purchased a used engine for $2,850.00 which Bosley installed. She paid an additional $2,300.00 in parts and labor in connection with replacing the engine.

Davis brought a suit for damages against Hixson, alleging that Hixson was negligent in failing to properly diagnose the problem with her vehicle and that its negligence caused her vehicle to continue to "run hot," which then caused her engine block to crack. In response, Hixson filed an answer and motion for summary judgment. In support of its motion, Hixson attached a memorandum, a certified copy of the consent judgment clarifying the sole allegation of failure to diagnose, and an affidavit executed by Wheat wherein he detailed the precise actions taken by Hixson on Davis's vehicle. Davis did not file an opposition or any documents in opposition to Hixson's motion for summary judgment and made no objections to the documents Hixson filed in support of its motion.

A hearing on the motion was subsequently held on September 19, 2017, and the motion was denied orally at the conclusion of the hearing on September 19, 2017. Hours after the hearing and the denial of Hixson's motion, Davis filed into the record two affidavits executed by herself and Sedric Bosley. Thereafter, Hixson filed an application for supervisory writ that this court granted on December 7, 2017. Subsequently, on December 22, the trial court signed a judgment reducing its previous oral denial of the motion to writing.

DISCUSSION

Hixson asserts in its first two assignments of error that the trial court erred by denying its motion for summary judgment despite the fact that Davis failed to file an opposition or introduce evidence, and that it erred by considering filings in the record that were not introduced by either party in either support or opposition to the motion. We agree.

The denial of a motion for summary judgment is an interlocutory judgment that is not appealable, but may be considered at the appellate court's discretion under its plenary powers to exercise supervisory jurisdiction over the trial courts. Louisiana Power & Light Co. v. Slaughter , 2004-2361 (La. App. 1 Cir. 11/4/05), 917 So.2d 532, writ denied , 2006-0217 (La. 4/24/06), 926 So.2d 550. When the overruling of an exception is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co. v. Hotel Investors of New Iberia , 396 So.2d 878 (La. 1981) ; Csaszar v. Nat'l Cas. Co., 2014-1273 (La. App. 3 Cir. 11/4/15), 177 So.3d 807, 809, writ denied , 2015-2221 (La. 1/25/16), 185 So.3d 752.

Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). It is appropriate when, upon consideration of the motion, memorandum, and supporting documents, there are no genuine issues as to material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A material fact is one whose existence or non-existence is essential to the cause of action because it determines the outcome. Jones v. Estate of Santiago , 2003-1424 (La. 4/14/04), 870 So.2d 1002 ; Garsee v. Bowie , 37,444 (La. App. 2 Cir. 8/20/03), 852 So.2d 1156. No genuine issue exists where, on the evidence presented, a reasonable person can reach only one conclusion; thus there is no need for trial. Jones, supra .

While the mover bears the burden of proof for the motion, if the mover will not bear the burden at trial, then not all elements of the action need be negated in order for the mover to prevail. La. C.C.P. art. 966(D)(1). Instead, the mover need only show that the claimant lacks factual support for one or more elements of the claim. Id. The mover can ordinarily meet this burden by submitting affidavits or pointing to the lack of factual support for its opponent's case. Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880 ; Sonnier v. Gordon , 50,513 (La. App. 2 Cir. 4/13/16), 194 So.3d 47. The burden then shifts to the nonmover who must produce factual evidence sufficient to show there is a genuine issue of material fact or that it will be able to meet its evidentiary burden at trial. La. C.C.P. art. 966(D)(1). An opposition to a motion for summary judgment and memorandums and documents filed in support must be filed and served on the parties no less than 15 days prior to trial. La. C.C.P. art. 966(B)(2). The failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion for summary judgment. Samaha, supra ; Sonnier , supra.

Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Samaha, supra .

As the mover, Hixson carried the initial burden of proof at the hearing on the motion for summary judgment. However, as the defendant not bearing the burden of proof at trial, Hixson was not required to negate all essential elements in Davis' claims; rather, it needed only to point out to the court the absence of factual support for one or more elements essential to Davis's claim before the burden of proof shifted to Davis. Hixson followed the proper procedure for providing factual support for its motion for summary judgment, as outlined in La. C.C.P. art. 966(D)(2).

As stated, Hixson's motion for summary judgment was supported by Wheat's affidavit. Wheat's affidavit sufficiently showed that Hixson followed the proper procedure for diagnosing the problems with the vehicle and Davis would be unable to prove at trial that Hixson's failure to diagnosis the problems with the vehicle was the result of negligence. In his affidavit, Wheat states he is a certified master technician with over 31 years of experience and a college degree in automotive science. He further states he is a certified technician of BMW vehicles and has received extensive training on how to diagnose and repair BMW vehicles, including the BMW 5 Series for the 2006 model year. Wheat provided a service and repair history of the vehicle and detailed descriptions of Hixson's contact with the vehicle on the following relevant dates: on or about June 22, 2015; July 16, 2015; and, on or about July 20, 2015. He described the "thorough multi-point inspection" process he used to diagnose the vehicle, including filling, bleeding, and pressure testing of the coolant system. He stated the vehicle was inspected again and test driven at the conclusion of all repairs, and if at any time during the post-repair inspection or test drive the need for additional repairs arose, he would have recommended those repairs to Davis. Wheat further averred, however, that Davis refused to authorize the repairs recommended by Hixson on July 16 and July 20 and had previously refused to authorize repairs recommended by Hixson on a prior occasion in 2014 following an inspection unrelated to this suit brought by Davis. Wheat averred all diagnostics and repairs performed by Hixson were properly performed in accordance with BMW's specifications. The detailed facts contained in Wheat's affidavit do not materially differ from those asserted by Davis in her petition or answers to interrogatories and clearly point out to the court that Davis cannot provide a factual support to prove that Hixson's failure to diagnose the problem with vehicle was negligent. Furthermore, given that Davis refused the repairs recommended by Hixson on multiple occasions, Davis cannot provide the factual support to prove that Hixson's alleged negligence was the proximate cause of the damages claims. Thus, Hixson successfully met its initial burden of proof, in accordance with La. C.C.P. art. 966(D)(1), and the burden, therefore, shifted to Davis.

In response to Hixson's motion, Davis did not file an opposition, a memorandum or any documents in support of an opposition; nor did she object to any of the documents filed in support of Hixson's motion. Louisiana C.C.P. art. 966 was amended and reenacted in 2015, effective January 1, 2016; these revisions did not change the legal standard for summary judgment or the technicalities of the burdens of proof. Forstall v. City of New Orleans , 2017-0414 (La. App. 4 Cir. 1/17/18), 238 So.3d 465. However, the revisions did change the rule regarding the evidence and supporting documents that can be introduced and considered by a court in deciding a motion for summary judgment. Id. This change in the law is reflected in La. C.C.P. art. 966(D)(2), which provides:

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. (Emphasis added).

This revision changes the law by no longer allowing a court to consider the record as a whole when deciding a motion for summary judgment. Forstall , supra. Louisiana C.C.P. art 966(A)(4) provides the exclusive list of documents that may be filed in support of or in opposition to the motion-pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. Reference to their existence elsewhere in the record is not sufficient. The documents must specifically be filed in support of or in opposition to the motion in order for the court to consider them. In Forstall , the appellate court held that the movant in a motion for summary judgment did not carry his initial burden when he failed to attach any documents in support of his motion and merely referenced in his memorandum in support of his motion evidence located elsewhere in the record-previously filed exhibits and testimony from a bifurcated trial. Forstall , supra at 472.

By failing to file an opposition, a memorandum or any documents in support of an opposition, Davis relied only on the allegations in her petition and answers to interrogatories that were filed elsewhere in the record as proof of the existence of a genuine issue of material fact. This is not sufficient and is inconsistent with the requirements of La. C.C.P art 996(B)(2) and (D)(2). Likewise, the trial court failed to follow the proper procedure for considering a motion for summary judgment as outlined in La. C.C.P art 996(D)(2). In ruling on the motion, the trial court was permitted to consider only those documents filed in support of opposition to the motion for summary judgment. Here, since no documents were filed by Davis, the only documents to be considered were those Hixson filed in support of its motion, i.e. , the certified copy of the consent judgment confirming Davis's sole allegation was failure to diagnose, and Wheat's affidavit. However, the trial court stated in its oral ruling at the hearing on the motion that its denial of Hixson's motion was based on its review of the record and the pleadings therein. This was procedurally incorrect and in error. Therefore, Davis did not meet the burden of proof required by La. C.C.P art 996(D)(1) because she introduced no documents or evidence in opposition to Hixson's motion that contained factual support sufficient to establish the existence of a genuine issue of material fact or that she would be able to prevail at trial.

Accordingly, we conclude Hixson met its initial burden and showed there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Davis failed to show any genuine issue of material fact; thus, we grant Hixson's motion for summary judgment.

CONCLUSION

Accordingly, for the foregoing reasons, we grant the writ application. In so doing, we reverse the trial court's denial of the motion for summary judgment filed by defendant, Hixson Autoplex of Monroe, LLC, and grant its motion for summary judgment, dismissing with prejudice the claims of plaintiff, Janella Davis. Costs are assessed to Janella Davis.

WRIT GRANTED. REVERSED AND RENDERED.

      In accordance with La. C.C.P. art. 966(H), the case was assigned to briefing and the parties were afforded opportunity of oral argument.

      In light of our above findings, we pretermit discussion of Hixson's third assignment of error.


text:
    Carl DAVIS and April Davis, Plaintiffs-Appellants v. HENIFF TRANSPORTATION, LLC, Bastrop Tank Wash, GEO Specialty Chemicals, Sparta Insurance Company, ABC Insurance Company, and DEF Insurance Company Defendants-Appellees
    No. 52,048-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018.
    G. FREDERICK KELLY, III, By: George F. Kelly, III, DARRYL M. BREAUX, Counsel for Appellants, Carl Davis and April Davis
    JEANSONNE & REMONDET, By: Ted P. Sorrells, Scott F. Higgins, Esq., Lafayette, Counsel for Appellees, Heniff Transportation, LLC and Arch Insurance Co.
    MUSGRAVE, MCLACHLAN & PENN, LLC, By: Richard T. Musgrave, Amanda H. Aucoin, New Orleans, Counsel for Appellees, Bastrop Tank Wash
    MCCRANIE, SISTRUNK, ET AL., By: Peter J. Wanek, New Orleans, THOMPSON HINE, LLP, By: William J. Hubbard, Counsel for Appellees, GEO Specialty Chemicals
    MATTHIESEN, WICKERT & LEHRER, By: James T. Busenlener, Carolan D. Luning, Counsel for Intervenor, Zurich American Insurance Co.
    Before BROWN, COX, and MCCALLUM, JJ.
   COX, J.

Appellants, Carl and April Davis ("Carl" and "April," respectively), appeal a judgment from the Fourth Judicial District Court, Parish of Morehouse, State of Louisiana, wherein the trial court granted a motion for summary judgment on behalf of Appellee, Bastrop Tank Wash ("Bastrop"), and denied Appellants' motion for new trial. Carl contends that the trial court erred in finding there was no genuine issue of material fact, in ruling that Heniff Transportation, LLC ("Heniff") may continue to argue the fault of Bastrop at the jury trial, despite dismissing Bastrop from the suit, and in denying his motion for new trial. For the following reasons, we respectfully reverse the trial court's granting of Bastrop's motion for summary judgment.

FACTS

Carl was a self-employed independent contractor for Heniff, who worked as a licensed professional truck driver carrying dangerous chemicals. On or about December 29, 2014, Carl was attempting to deliver a tank trailer of hydrochloric acid to GEO Specialty Chemicals ("GEO"). At that time, GEO personnel noticed a defect in the hose and/or hose fittings on the tank trailer, which was owned by Heniff. As a result of the defect, Heniff instructed Carl to have the hose and fittings repaired by Bastrop. Bastrop personnel allegedly repaired the hose and fittings.

That evening, Carl and GEO personnel, wearing mandated safety equipment, began to transfer hydrochloric acid from the tank trailer to the GEO terminal. During the process, the hose fittings ruptured, causing hydrochloric acid to escape from the fittings, knocking off Carl's eye protection and injuring his eyes, face, and body.

On December 17, 2015, Carl filed a petition for damages against Heniff, Bastrop, GEO, Sparta Insurance Company, ABC Insurance Company, and DEF Insurance Company. His wife, April, joined the petition, claiming loss of consortium.

On March 7, 2017, Bastrop filed a motion for summary judgment. Bastrop asserted that there was no issue or failure with the portion of the hose they repaired, as the portion they repaired connected the hose to the storage tank, and the portion of the hose that malfunctioned was located at the opposite end connected to Carl's trailer.

A hearing took place on July 20, 2017, and the trial court granted Bastrop's motion. The trial court noted that Carl's opposition to Bastrop's motion for summary judgment was untimely filed 8 days prior to the hearing, rather than 15 days prior, in accordance with La. C. C. P. art. 966. Regardless, the trial court still believed there was no genuine issue of material fact because Bastrop was not responsible for fixing and/or replacing the end of the hose that ultimately malfunctioned.

Carl filed a motion for new trial, which was subsequently denied. He now appeals.

DISCUSSION

In his first assignment of error, Carl contends that the trial court erred in finding there was no genuine issue of material fact. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, pursuant to La. C.C.P. art. 966.

The burden of proof for a summary judgment motion remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(D)(1).

Opposing affidavits and any memorandum in support thereof shall be served pursuant to La. C.C.P. art. 1313 at least 15 days prior to the date of the hearing. This time limitation is mandatory, and affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court. Woodall v. Weaver , 43,050 (La. App. 2 Cir. 2/13/08), 975 So.2d 750.

It is within the trial court's discretion to render a summary judgment, if appropriate, or to allow further discovery. However, the parties must be given a fair opportunity to present their claims. Unless a party opposing summary judgment shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of material fact. Peterson v. City of Tallulah , 43,197 (La. App. 2 Cir. 4/23/08), 981 So.2d 192.

A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, and the appellate court must use the same criteria that governed the trial court's determination of whether summary judgment was appropriate. Bank of New York Mellon v. Smith , 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243.

On de novo review of this record, we find that there are genuine issues of material fact that render summary judgment under La. C.C.P. art. 966(A)(3) improper at this time.

The following facts appear to be undisputed: the hose was owned by Heniff; there was a camlock fitting at the end of the hose that connected the hose to Heniff's trailer; on the other end of the hose was a four-bolt flange connector, which connected the hose to GEO's facility; and, on the date of the incident, the camlock fitting broke and sprayed hydrochloric acid onto Carl's face and body. Carl, however, asserts that Heniff's communications with Bastrop regarding the repair of the hose create a genuine issue of material fact. He also states that the scope of Bastrop's agreement with Heniff pertaining to the service of the hose is unclear.

In her deposition, Tina Brown, Bastrop's manager, stated she did not recall whether she or her assistant, Trish Harper, spoke with Obie O'Brien of Heniff regarding the repair of the hose. Mrs. Brown stated that she had asked Trish about the incident, and Trish relayed that she vaguely remembered someone "calling about it," but she did not remember with whom she spoke. Additionally, Mrs. Brown mentioned a former Bastrop employee named Butch who obtained the replacement part from Bumper to Bumper and brought it to Bastrop Tank Wash. She could not recall his last name at the time, but stated she would locate the information and provide it to her attorney.

Michael Brown, who replaced the four-bolt flange on the hose, stated in his deposition that he had never worked on a hydrochloric acid transfer hose prior to the date of the incident. He also stated that he did not fully inspect the hose. Moreover, Mrs. Brown stated in her deposition that Bastrop does not inspect hoses, nor do they have any policies in place regarding the disposition of a hose showing signs of damage.

It is thus clear to this Court that genuine issues of material fact exist, particularly regarding communications about the hose and the scope of Bastrop's agreement with Heniff pertaining to repairs. It appears that both Trish Harper and Butch may have knowledge about communications received on the date of the incident concerning the defective hose. Further, because Bastrop admitted it had no prior experience or history of working on these types of hoses, their agreement with Heniff may reveal whether they were liable for such repairs. For these reasons, we find that not allowing additional discovery in this suit would lead to a probable injustice for Carl. We, therefore, reverse Bastrop's motion for summary judgment.

In his last two assignments of error, Carl argues that the trial court erred in ruling that Heniff may continue to argue the fault of Bastrop at the jury trial, despite the trial court's grant of summary judgment dismissing Bastrop, and that the trial court erred in denying his motion for new trial. Because this Court finds that genuine issues of material fact exist and thus reverses the trial court's granting of Bastrop's motion for summary judgment, these assignments will not be addressed.

CONCLUSION

Based on the foregoing, we respectfully reverse the trial court's granting of Bastrop's motion for summary judgment. There appear to be genuine issues of material fact regarding Heniff's communications with Bastrop about the problem with the hose, as well as the scope of Bastrop's agreement with Heniff to service the hose. This Court believes that the interests of substantial justice would best be served by allowing Carl to conduct additional discovery. Costs of this appeal are assessed to Appellees.

REVERSED.

      Sparta was later dismissed from the suit and replaced by Arch Insurance Company.

      Zurich American Insurance Company, which issued a policy of occupational accident insurance and paid medical and indemnity benefits to and on behalf of Carl, later intervened in order to assert its subrogation interest.


text:
    Kurt PERKINS and Tabitha Perkins, Plaintiffs-Appellants v. AIR U SHREVEPORT, LLC, ABC Insurance Company and John Doe(s), Defendants-Appellees
    No. 52,093-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    KEISER LAW FIRM, PLC By: Randall B. Keiser, Jeremy C. Cedars, Counsel for Appellants
    SEABAUGH, JOFFRION, SEPULVADO & VICTORY, LLC By: Alan T. Seabaugh, Michael C. Melerine, Counsel for Appellees
    Before GARRETT, COX, and STEPHENS, JJ.
   COX, J.

Appellants, Kurt and Tabitha Perkins (referred to individually as "Kurt" and "Tabitha," respectively, and collectively as the "Perkinses"), appeal a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of Appellees, Air U Shreveport, LLC ("Air U"), ABC Insurance, and John Doe(s). Air U filed a motion for summary judgment, which the trial court partially granted, dismissing part of the Perkins's claims. The Perkinses appeal the trial court's partial granting of the motion for summary judgment. For the following reasons, we affirm.

FACTS

Air U is an indoor trampoline park located in Shreveport, Louisiana. Kurt and his wife, Tabitha, were patrons at Air U on July 19, 2014, when Kurt was injured. Kurt was 24 years old at the time of the injury and had no known or apparent medical issues. He had recently completed a stint in the U.S. Marine Corps, and was working part-time while attending a technical college.

On July 2, 2015, the Perkinses filed suit against Air U, ABC Insurance Company, and John Doe(s).

In his deposition, Kurt stated, "I don't know why it happened. I thought I could do a jump on a trampoline like the other hundred kids jumping there." He stated he could not remember what kind of jump he was doing before the injury and recalled that he landed on both feet when his left knee gave out. When his knee gave out, he fell to the trampoline, holding his leg and hollering. He stated he lay on the trampoline until he left on a stretcher with the emergency medical technicians.

Kurt stated he had never had any other injury to his left leg or medical treatment of his left leg. He stated that by looking at the trampoline, it was set up and ready to use. He said he did not notice any holes or loose or broken springs. Kurt also stated he did not notice any difference between the trampoline he was injured on and the other trampolines.

Tabitha also stated in her deposition that she did not notice any defects or anything visually wrong with the trampolines. She recalled that before the accident, Kurt was bouncing off the wall, but at the time of the accident, was jumping straight up and down. She stated an employee of Air U told her he could not call an ambulance because only a manager could call an ambulance.

James Murphy, an owner of Air U, stated in his deposition that Mr. McNabb and Mr. Hutchinson are his business partners in Air U. He described Mr. McNabb as having extensive trampoline experience, which includes a background in gymnastics and serving on several national boards in the trampoline sport industry. Mr. Murphy stated Air U had no liability insurance in effect in July 2014 and is not a member of the International Association of Trampoline Parks.

Mr. Murphy said that at the time Kurt was jumping, the rules video was playing on a continuous loop in a public area and the written rules were posted on public walls. He described their inspection process as a daily tension test and twice-weekly structural check. Before a patron is able to jump at Air U, he or she is required to read and sign a waiver. Kurt signed this waiver before his injury.

According to his affidavit and CV, Dr. Gerald S. George has a background in biomechanics, trampolines, and institutional trampoline courts. He earned a Ph.D. in biomechanics with a minor in psychology. Dr. George inspected Air U on behalf of the plaintiffs and stated the following in his affidavit:

Allowing use of a trampoline device to propel oneself to other trampolines is an unreasonably dangerous practice. The unreasonably dangerous practice predisposes participants to a higher than ordinary risk of serious injury. From a biomechanical standpoint, the injuries sustained by Mr. Perkins are consistent with what would be expected from the activity.

On April 17, 2017, Air U filed a motion for summary judgment. At the hearing on the motion, the plaintiffs' attorney stated the defect was in the design of the trampoline park itself because it was not compliant with ASTM standards and it was inherently dangerous to have trampolines mounted at an angle on the walls. Air U's attorney argued the alleged ASTM violations and wall trampolines were irrelevant because Kurt was jumping straight up and down at the time of the incident. The trial judge granted the motion in favor of Air U stating, "there were no genuine issues of material fact regarding defects in Air U [.]" The Perkinses filed this appeal, arguing the trial judge erred in granting Air U's motion.

DISCUSSION

I. Unreasonable Risk of Harm

In their first assignment of error, the Perkinses argue the trial court erred by failing to find a genuine issue of material fact as to whether the trampolines, as designed, installed, and inspected by Air U, were the defect which created an unreasonable risk of harm. They assert that they have sufficient evidence to meet the elements for a claim set forth in La C.C. arts. 2317 and 2317.1 and that a genuine issue of material fact exists.

The law pertaining to motions for summary judgment is well settled. At the time the instant motion was filed, La. C.C.P. art. 966(A)(3) and (D)(1) provided, in pertinent part:

(A)(3) After an opportunity for adequate discovery, 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.
* * *
(D)(1) 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 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.

This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case. Gilley v. Gilley Enterprises, Inc ., 51,328 (La. App. 2 Cir. 5/2/17), 222 So.3d 885. At that point, the party who bears the burden of persuasion at trial must come forth with evidence which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

A fact is "material" when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Barfield v. Diamond Constr. Inc ., 51,291 (La. App. 2 Cir. 4/5/17), 217 So.3d 1211, writ denied , 2017-0751 (La. 9/15/17), 228 So.3d 1205.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Garrison v. State Farm Fire & Cas. Co ., 51,245 (La. App. 2 Cir. 4/5/17), 217 So.3d 586.

La. C.C. arts. 2317 and 2317.1 state, respectively:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
* * *
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

To recover for damages caused by a defective thing, the plaintiff must prove the following: (1) the thing was in the defendant's custody; (2) the thing contained a defect which presented an unreasonable risk of harm to others; (3) the defective condition caused the damage; and (4) the defendant knew or should have known of the defect. Wells v. Town of Delhi , 51,222 (La. App. 2 Cir. 4/5/17), 216 So.3d 1095, writ denied , 2017-0753 (La. 9/22/17), 227 So.3d 821.

a. Thing is in defendant's custody

The test for determining custody is twofold: (1) whether the person bears such a relationship as to have the right of direction or control over the thing, and (2) what, if any, kind of benefit the person derives from the thing. Barnes v. Riverwood Apartments P'ship , 43,798 (La. App. 2 Cir. 2/4/09), 16 So.3d 361.

Air U owns the trampolines and equipment located in their trampoline park. Air U also derives revenues from allowing patrons to use their trampolines. It is clear, element one is met. Air U had custody of the trampolines and trampoline park at the time of the incident.

b. Defect

A defect is a condition creating an "unreasonable risk of harm." The imperfection must pose an unreasonable risk of injury to persons exercising ordinary care and prudence. Lawrence v. Sanders , 49,966 (La. App. 2 Cir. 6/24/15), 169 So.3d 790, writ denied , 2015-1450 (La. 10/23/15), 179 So.3d 601. There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. The concept of whether a defect presents an unreasonable risk of harm, which requires a balancing of the risk and utility of the condition, is not a simple rule of law which can be applied mechanically to the facts of the case. Johnson v. City of Monroe , 38,388 (La. App. 2 Cir. 4/7/04), 870 So.2d 1105, writ denied , 2004-1130 (La. 6/25/04), 876 So.2d 843.

There are several factors that may be considered in determining whether a hazard presents an unreasonable risk of harm. The degree to which a danger is evident to a potential victim is one factor in determining whether the condition is unreasonably dangerous. The accident history of the defect is also a relevant consideration in the unreasonable risk evaluation. Moore v. Oak Meadows Apartments , 43,620 (La. App. 2 Cir. 10/22/08), 997 So.2d 594.

The determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case. The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically. Id.

As the trial judge noted, the Perkinses failed to point to a defect or condition creating an unreasonable risk of harm. They argue the park as a whole creates an unreasonable risk of harm.

In determining if the park as a whole poses an unreasonable risk of harm, we must balance the societal value and utility against the potential for harm. In his deposition, Mr. Murphy estimated that in the nine months Air U was open in 2014, it had roughly 90,000 patrons visit. As evidenced from the depositions, the patrons range from children to adults. Patrons may visit the trampoline park individually or for parties, which is why the Perkinses were present that day. It is clear from the number of patrons, as well as the use for parties, that Air U has a high societal utility for all ages.

Mr. Murphy indicated Air U had 88 documented injuries (including Kurt) in the first 9 months they were open, with only a handful needing to leave by ambulance. He also stated Air U is below the national average in trampoline park injuries. He stated the industry standard for accidents is triple what Air U experiences. Mr. Murphy said the national average injury rate is .3 to .35 percent.

According to this information, we find the societal value of Air U outweighs the potential for harm. We agree with the trial court that the Perkinses have not proven a defect in Air U.

The plaintiff is required to prove all four elements for a claim under 2317.1. Because the Perkinses have failed to prove the existence of a defect, we will not discuss the remaining two elements.

II. Res Ipsa Loquitur

In their second assignment of error, the Perkinses argue the trial court erred by failing to apply the doctrine of res ipsa loquitur in the granting of the motion for summary judgment. In Linnear v. CenterPoint Energy Entex/Reliant Energy , 2006-3030 (La.9/5/07), 966 So.2d 36, the Louisiana Supreme Court explained the proper application of the doctrine of res ipsa loquitur :

The doctrine of res ipsa loquitur applies in cases where the plaintiff uses circumstantial evidence alone to prove negligence by the defendant[.] The doctrine, meaning "the thing speaks for itself," permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury[.] [T]he doctrine applies when three criteria are met. First, the injury is the kind which ordinarily does not occur in the absence of negligence. While the plaintiff does not have to eliminate all other possible causes, he must present evidence indicating at least a probability that the accident would not have occurred absent negligence. Second, the evidence must sufficiently eliminate other more probable causes of the injury, such as the conduct of the plaintiff or a third person. The circumstances must warrant an inference of negligence. Third, the negligence of the defendant must fall within the scope of his duty to plaintiff. This may, but not necessarily, be proved in instances where the defendant had exclusive control of the thing that caused the injury.

The trial judge determines whether reasonable minds could differ on the presence of all three criteria. If reasonable minds could not conclude that all three criteria are satisfied, then the legal requirements for the use of res ipsa loquitur are not met. Milke v. Ratcliff Animal Hosp., Inc. ex rel. Ratcliff , 48,130 (La. App. 2 Cir. 7/10/13), 120 So.3d 343.

As explained in Linnear , "the event must be such that in light of ordinary experience, it gives rise to an inference that someone must have been negligent." In light of ordinary experience, trampoline injuries of this kind do not lead to an inference that the trampoline owner was negligent. Jumping straight up and down on a single trampoline before one's knee gives out does not warrant an inference of negligence. Therefore, we find the doctrine of res ipsa loquitur is not applicable in this matter.

CONCLUSION

For the reasons stated above, we affirm the trial court's granting of Air U's motion for summary judgment. Costs associated with this appeal are assessed to the Appellants.

AFFIRMED.

      Although it is referenced as a granting of the motion for summary judgment, it is actually a partial granting of the motion. There is still a genuine issue of material fact as to whether the employees took appropriate action in informing Kurt of the risk of possible injury and whether appropriate medical attention was timely provided.

      The names of Air U's insurance company and employees were unknown at the time the suit was filed.

      ASTM stands for the "American Standard for Testing Materials."