JERRY MOORE, JR., INDIVIDUALLY AND ON BEHALF OF MINOR, JERRY MOORE, III, AND ANITRA MOORE
CHOICE FOUNDATION D/B/A LAFAYETTE ACADEMY CHARTER SCHOOL, KAREN LEWIS, AND XYZ INSURANCE COMPANY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-07717,
DIVISION "B-1" Honorable Rachael Johnson
Zeringue ZERINGUE & RICHARDSON COUNSEL FOR
G. Preis, Jr. Robert M. Kallam Charmaine B. Borne PREIS PLC
COUNSEL FOR DEFENDANTS/APPELLANTS
composed of Judge Terri F. Love, Judge Daniel L. Dysart,
Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Dale N. Atkins
COSSICH LOBRANO JUDGE
an appeal from a default judgment in a personal injury case.
Defendants/appellants, Choice Foundation d/b/a Lafayette
Academy Charter School (the "school") and Karen
Lewis ("Lewis"), appeal the October 19, 2017
default judgment in favor of plaintiffs/appellees, Jerry
Moore, Jr., individually and on behalf of the minor Jerry
Moore, III, and Anitra Moore (collectively, the
"Moores"), and the April 2, 2018 denial of a motion
for new trial. For the reasons that follow, we vacate the
default judgment, reverse the denial of the motion for new
trial, and remand this matter to the district court for
August 2, 2016, the Moores filed a petition for damages,
alleging that Jerry Moore, III ("Little Jerry") was
injured when he fell down the stairs at school on August 19,
2015. According to the petition, Little Jerry is the minor
son of Jerry Moore, Jr. and Anitra Moore ("Mr. and Mrs.
Moore"). Little Jerry is non-verbal, autistic, and
requires constant monitoring and assistance while at school.
The petition states that Lewis was a paraprofessional
employed by the school and assigned to Little Jerry. The
Moores allege Lewis was negligent in failing to properly
supervise Little Jerry, and the school was vicariously liable
for Lewis' negligence. Also, according to the petition,
the school was negligent for failing to remedy a hazardous
condition of the stairs.
none of the defendants filed an answer to the petition, the
Moores filed motions for preliminary default on October 26,
2016. On November 4, 2016, the district court entered a
preliminary default against Lewis and the school.
a year later, on October 19, 2017, the district court held a
hearing at which the Moores moved to confirm the default
judgment. On the same date, the district court confirmed the
default judgment against Lewis and the school "in solido
and under theory of respondeat superior" and awarded the
Moores damages in the amount of $417, 249.32, together with
interest from the date of judicial demand until paid and all
costs of the proceedings. On October 31, 2017, Lewis and the
school filed a motion for new trial. Following a hearing on
March 9, 2018, the district court denied a new trial in its
judgment dated April 2, 2018. This appeal followed.
primary issue before this Court is whether the Moores proved
a prima facie case of negligence with competent, admissible
district court has "broad discretion in  granting or
denying a motion for new trial, and we review a denial under
an abuse of discretion standard." Bonnette v.
Bonnette, 2015-0239, pp. 22-23 (La.App. 4 Cir. 2/17/16),
185 So.3d 321, 334. Article 1972(1) of the Louisiana Code of
Civil Procedure provides that "[a] new trial shall be
granted, upon contradictory motion of any party ... when the
verdict or judgment appears clearly contrary to the law and
reviewing default judgments, the appellate court is
restricted to determining the sufficiency of the evidence
offered in support of the judgment." Arias v.
Stolthaven New Orleans, L.L.C., 2008-1111, p. 5 (La.
5/5/09), 9 So.3d 815, 818. "This determination is a
factual one governed by the manifest error standard of
of a default judgment is similar to a trial and requires,
with admissible evidence, 'proof of the demand sufficient
to establish a prima facie case.'" Id.,
2008-1111, p. 7, 9 So.3d at 820 (quoting La. C.C.P. art.
1702(A))(other citations omitted). "The elements of a
prima facie case are established with competent evidence, as
fully as though each of the allegations in the petition were
denied by the defendant." Id. (citing
Sessions & Fishman v. Liquid Air Corp., 616
So.2d 1254, 1258 (La. 1993); Thibodeaux v. Burton,
538 So.2d 1001, 1004 (La. 1989)).
Louisiana Supreme Court has made clear that inadmissible
evidence "may not support a default judgment even though
it was not objected to because the defendant was not
present." Arias, 2008-1111, p. 7, 9 So.3d at
820 (citations omitted). Rather, the rules of evidence apply
at a hearing to confirm a default judgment, subject to
certain legislative exceptions. La. C.E. art. 1101(A);
see also La. C.C.P. art. 1702(B)(2).
Code of Evidence article 801(C) defines hearsay as a
"statement, other than one made by the declarant while
testifying at the present trial or hearing, offered in
evidence to prove the truth of the matter asserted."
Generally, hearsay evidence is not admissible evidence. La.
C.E. art. 802. Moreover, "[h]earsay evidence does not
sustain the burden of proving the prima facie case
necessary for confirmation of default." Cameron v.
Roberts, 47, 789, p. 7 (La.App. 2 Cir. 2/27/13), 111
So.3d 438, 443; see Cunningham v. M & S Marine,
Inc., 2005-0805, p. 4 (La.App. 4 Cir. 1/11/06), 923
So.2d 770, 773. "Hearsay is treated as unreliable
because it is based on statements by individuals who are not
before the court, have not been sworn and are not available
for cross examination." Ross v. City of New
Orleans, 2000-1879, p. 14 (La.App. 4 Cir. 11/21/01), 808
So.2d 751, 761; Crescent City Const., Inc. v.
Camper, 2003-1727, p. 6 (La.App. 1 Cir. 12/30/04), 898
So.2d 408, 413.
Moores' claims against Lewis and the school sound in
negligence. The duty/risk analysis is the standard negligence
analysis our Court employs in determining whether to impose
liability under La. C.C. art. 2315. Lemann v. Essen
Lane Daiquiris, Inc., 2005-1095, p. 7 (La. 3/10/06),
923 So.2d 627, 632-33. As stated by the Supreme Court:
in order for liability to attach under a duty/risk analysis,
a plaintiff must prove five separate elements: (1) the
defendant had a duty to conform his or her conduct to a
specific standard of care (the duty element); (2) the
defendant failed to conform his or her conduct to the
appropriate standard (the breach of duty element); (3) the
defendant's substandard conduct was a cause-in-fact of
the plaintiff's injuries (the cause-in-fact element); (4)
the defendant's substandard conduct was a legal cause of
the plaintiff's injuries (the scope of liability or scope
of protection element); and, (5) actual damages (the damages
Mathieu v. Imperial Toy Corp., 94-0952, pp. 4-5 (La.
11/30/94), 646 So.2d 318, 322. "A negative answer to any
of the inquiries of the duty/risk analysis results in a
determination of no liability." Id., 94-0952,
p. 11, 646 So.2d at 326.
the record before us, we find that the default judgment was
contrary to the law and the evidence because the Moores
failed to prove a prima facie case of negligence.
Specifically, no competent, admissible evidence of breach of
duty or causation was presented.
eyewitness to Little Jerry's accident testified. No one
testified who had any personal knowledge of how Little
Jerry's accident occurred. The only evidence in the
record of how the accident occurred is hearsay, which is
inadmissible. To establish how the accident happened, the
Moores rely on an accident report purportedly signed by
Lewis, which is hearsay. Likewise, Mr. and Mrs. Moore
testified, both in court and via affidavit, to what other
people (Lewis and unidentified individuals associated with
the school) told them happened to Little Jerry on the day of
his injury at school. This is also hearsay and further
demonstrates a lack of personal knowledge of the facts of the
Moores fail to identify any exception to the hearsay rules,
and we find none, that applies here. Louisiana courts have
found witness statements that are not in affidavit form and
unauthenticated accident reports insufficient to establish a
prima facie case on a default judgment. Triple S Marine,
L.L.C., v. Daigle Towing Serv., L.L.C., unpub.,
2009-1506, p. 3 (La.App. 1 Cir. 7/29/10), 2010 WL 2964267.
Martin v. Sanders, 35, 575, p. 4 (La.App. 2 Cir.
1/23/02), 805 So.2d 1209, 1212. Similarly, courts of this
state have found that affidavits or testimony, not based on
firsthand knowledge of an accident, likewise fail to
establish a prima facie case. See, e.g., Jackson
v. Reed, 47, 293, pp. 5-6 (La.App. 2 Cir. 5/29/13), 116
So.3d 977, 981; Triple S Marine, L.L.C., 2009-1506,
p. 3, 2010 WL 2964267; Crescent City Const., Inc.,
2003-1727, p. 9, 898 So.2d at 415. See also Parker v.
Schneider, 2014-0232, p. 4 (La.App. 4 Cir. 10/1/14), 151
So.3d 679, 682 (citing La. C.E. art. 602 and stating
"[a]ffidavits must be based upon the personal knowledge
of the affiant").
of hearsay, the record evidences that (1) Little Jerry's
special needs warrant a high level of supervision at school;
and (2) Little Jerry sustained a serious injury while at
school. This evidence does not prove negligence. If a
plaintiff fails to prove any element of the duty/risk
analysis, a defendant can have no liability for negligence.
Lemann, 2005-1095, p. 7, 923 So.2d at 633. Even if
the record evidence supports that a duty existed and the
Moores sustained damages, the Moores have failed to show that
Lewis or the school breached any duty owed them or that such
a breach of duty caused their damages. They have not shown
that Lewis did anything wrong with respect to Little
Jerry's descent on the stairs or even that the accident
occurred on the stairs in question. In the absence of
competent evidence, they also have not shown that either
Lewis' actions or any condition of the stairs caused
Little Jerry's injuries. We find no law permitting an
inference that, because a duty may exist for a special needs
child and because the child ...