Gerald O. BELL v. Patrick THIBODEAUX and Affiliated Blind of Louisiana, Inc., 51 So. 3d 188

DAVID E. CHATELAIN, Judge. h Plaintiff appeals a judgment of the trial court granting

summary judgment in favor of Defendants and dismissing his tort claims against them with prejudice. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY In December of 2006, Patricia A. Bell, who was legally blind, enrolled as a student at Affiliated Blind of Louisiana, Inc. (Affiliated Blind). Ms. Bell was twenty-nine years of age. Affiliated Blind is a training center that provides particularized instruction to hearing and seeing impaired individuals on how to function in society in light of their impairments. Ms.

Bell underwent a two-week initial assessment to determine her strengths and weaknesses. Patrick Thibodeaux (Mr. Thibodeaux), a long-time employee of Affiliated Blind, performed the assessment. Mr. Thibo-deaux is also legally blind. Following the assessment, Ms. Bell began her formal training with Affiliated Blind in January of 2007 and worked with Mr. Thibodeaux four days a week for approximately two hours each day. On May 6, 2007, Ms. Bell was instructed to independently traverse a stairwell. While attempting to climb the stairs, she fell and injured herself, requiring medical attention. Ms.

Bell filed suit on November 19, 2007, against Mr. Thibodeaux and Affiliated Blind (Defendants), alleging that: As a result of the accident, plaintiff, Patricia Bell sustained serious injuries to her body, necessitating immediate medical treatment. The plaintiff has also experienced multiple seizures and sustained severe headaches as a result of the fall. Unfortunately, Ms. Bell passed away on July 10, 2008. The death certificate listed “long-standing kidney disease” as the cause of death. As a result of Ms. Bell’s death, 12her former husband, Dr. Gerald O. Bell, on behalf of Ms.

Bell’s minor son, Hunter Bell, was substituted as Plaintiff. After answering Plaintiffs petition, Defendants filed a motion for

summary judgment, contending they did not breach any duty owed to Ms. Bell. After conducting a hearing on the motion, the trial court granted

summary judgment stating “since the original plaintiff is deceased, I don’t see how he could prevail anyway.” Plaintiff appeals, contending the trial court erred in granting

summary judgment. DISCUSSION In Dinger v. Shea, 96-448, pp. 4-5 (La.App. 3 Cir. 12/11/96), 685 So.2d 485, 488-89, we set forth the standard of appellate review of

summary judgments: Appellate courts review

summary judgments de novo under the same criteria that govern the district court’s consideration of whether

summary judgment is appropriate. Potter v. First Federal Sav. and Loan Ass’n, 615 So.2d 318 (La.1993). A motion for

summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A fact is “material” if its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute. Cormier v. Wise, 93-1434 (La.App. 3 Cir. 6/1/94); 638 So.2d 688.

A fact is “at issue” if there exists any reasonable doubt as to its existence. Durrosseau v. Century 21 Flavin Realty, Inc., 594 So.2d 1036 (La.App. 3 Cir.1992). In the past, any doubt regarding the existence of material facts was to be resolved against granting the

summary judgment, even if grave doubts existed as to a party’s ability to establish disputed facts at trial. Penton [v. Clarkson, 93-657 (La.App. 1 Cir. 3/11/94)], 633 So.2d 918 (citations omitted). The amendment does not change the law regarding burdens of proof, as the mover is still required to prove the absence of a genuine issue and his entitlement to judgment. Short v. [Giffin ], 96-0361 (La.App. 4 Cir. 8/21/96); 682 So.2d 249; Walker v. Kroop, 96-0618 (La.App. 4 Cir. 7/24/96); 678 So.2d 580. However, it now appears, based on the new language of

section (C), that in order to rebut a showing made by the mover of the non-existence of a genuine issue of material fact, the nonmoving party will be held to a higher standard of proof, i.e. a non-moving party must sufficiently establish the existence of proof of an essential element of his claim on which he is to bear the burden of proving at trial. See also Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323. In their motion for

summary judgment, Defendants acknowledged that Affiliated Blind, in its role as a school for the hearing and sight impaired, and Mr. Thi-bodeaux, as an instructor, were charged with a duty of exercising reasonable supervision over Ms. Bell, their student. Nevertheless, they maintain the duty to exercise reasonable supervision was not breached in this case. In support of their motion for

summary judgment, Defendants presented the affidavit of Mr. Thibo-deaux wherein he stated that: (

a) for the past eleven years he has served as a mobility instructor of the seeing impaired and hearing impaired; (

b) he performed a two-week assessment of Ms. Bell to determine her strengths and weaknesses; (

c) he instructed Ms. Bell between January 2007 and March 2007 approximately four days a week for about two hours each session; (

d) during those sessions he instructed Ms. Bell on the proper way to ascend and descend steps and stairwells using her cane and determined she was able to independently navigate the stairwell; and, (

e) by March 2007, Ms. Bell had received at least four or five lessons involving traversing steps and stairwells. Plaintiff maintains that Ms. Bell was only provided with one training session prior to the date of the accident and Ms. Bell told Mr. Thibodeaux on the date of that ^accident that she was afraid to traverse the stairwell on her own. Nevertheless, Mr. Thibodeaux left Ms. Bell unattended, and she fell while attempting to climb the stairs. Thus, Plaintiff maintains these genuine issues of material fact should have precluded

summary judgment in this case. Defendants assert these “attempts to create issues of fact” are “nothing more than fabrications which cannot be supported by any witness.” They point out that because Ms. Bell died before giving a deposition in this matter and because her accident was unwitnessed, Plaintiff will not be able to provide any testimony or evidence to prove the allegation that Affiliated Blind and/or Mr. Thibodeaux failed to adequately exercise reasonable supervision over Ms. Bell. When a motion for

summary judgment is made and supported, as required by La.Code Civ.P. art. 966, “an adverse party may not rest on the mere allegations or denials of his pleading.” La.Code Civ.P. art. 967(B); Douglass v. Easton, 06-1404 (La.App. 3 Cir. 3/7/07), 953 So.2d 157, writ denied, 07-650 (La.5/11/07), 955 So.2d 1282. Rather, “his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” La.Code Civ.P. art. 967(B). Otherwise, “summary judgment, if appropriate, shall be rendered against him.” Id.

We acknowledge the difficult position substituted Plaintiff has in the present case because his mother, Ms. Bell, died. Notwithstanding, once Defendants made a properly supported motion for

summary judgment, Plaintiff was required “to produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial.” La.Code Civ.P. art. 966(C)(2). Plaintiff presented no competent evidence to oppose Defendants’ motion for

summary judgment. To the | ¡^contrary, in contravention of La.Code Civ.P. art. 967(B), Plaintiff relied solely upon the fourth paragraph of the petition as evidence of the existence of a genuine issue of material fact. Accordingly, the trial court properly granted

summary judgment in favor of Defendants. DECREE For the foregoing reasons, we affirm the trial court’s grant of

summary judgment in favor of Defendants, Affiliated Blind of Louisiana, Inc. and Patrick Thibodeaux. All costs of this proceeding are assessed against Dr. Gerald O. Bell, on behalf of Patricia Bell’s minor son, Hunter Bell. AFFIRMED. COOKS, J., dissents and assigns written reasons. PAINTER, J., dissents for the reasons assigned by Judge COOKS. Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. . Although we affirm the trial court's grant of

summary judgment, we are mindful that "the likelihood of success at trial is irrelevant to the question of the propriety of a

summary judgment.” Montgomery v. Boh Bros. Const. Co., Inc., 572 So.2d 368, 370 (La.App. 4 Cir.1990). Nevertheless, for reasons more fully expressed below, our affirmation in the present case is not based on the likelihood of success at trial. Rather, our affirmation is premised upon the shifting burden of proof in a

summary judgment setting as enunciated in La.Code Civ.P. arts. 966(C)(2) and 967(B).