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Jones v. Cobb8/22/2001
In this case, the trial court granted summary judgment dismissing plaintiffs' personal injury suit arising from an accident which occurred in a "sand lot" baseball game. A twelve-year-old swung a bat and struck an eight-year-old in the head causing serious injury. Finding genuine issues of material fact, we reverse the ruling of the trial court and remand for further proceedings.
Facts
Brittany Jones ("Brittany") was injured on November 3, 1997, after being accidentally struck in the head with a baseball bat. She was participating in a neighborhood "sand lot" game on or near property owned by Doug and Janis Cobb. Their twelve-year-old son, Justin Cobb ("Justin"), was batting. Eight-year-old Brittany was standing next to her bicycle somewhere behind home plate, waiting for her turn at bat. Justin's nine-year-old sister, Ginny Cobb, was pitching. A fourth child from the neighborhood, Ryan Smith, age seven, was also present. After Justin swung at the ball, Brittany was struck on the back swing. As a result of getting hit with the bat, Brittany sustained a head injury with a minimal depressive skull fracture, concussion and contusion. She was hospitalized for about a week, half of the time in Intensive Care. Brittany's parents sued Justin's parents to recover that portion of Brittany's medical expenses (estimated to range between $6,000 and $7,000) not covered by their health insurance and damages for Brittany's mental and physical pain and suffering.
The Cobbs moved for summary judgment, alleging that Brittany moved directly behind Justin while he was waiting for the pitch, that she failed to tell Justin she was behind him and that he did not know she was there. Defendants' motion was supported by Justin's and Ginny's affidavits. Plaintiffs' counsel opposed the motion, arguing that defendants failed to prove that they were entitled to judgment as a matter of law, and that they were liable for their son's negligent conduct under La. Civ. Code arts. 2315 and 2318. Copies of Brittany's deposition and her parents' depositions were attached to their opposition. Brittany's testimony indicated that she was standing beside her bicycle in a position "angled behind" Justin when she was struck. After hearing arguments, the trial court ruled that there was no genuine issue of material fact, finding that Justin was not negligent and dismissed Brittany's suit with prejudice.
Summary Judgment
The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La. 6/30/00), 764 So.2d 37; Robinson v. Brookshires #26, 33,713 (La. App. 2d Cir. 8/25/00), 769 So.2d 639. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. La. C.C.P. art. 966(B); Babin, supra.
The burden of producing evidence at the hearing on the motion for summary judgment is on the mover, normally the defendant, 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. At that point, the party who bears the burden of persuasion at trial, usually the plaintiff, must come forth with evidence which demonstrates his or her ability to meet the burden at trial. Id.; Robinson, 769 So.2d at 640.
The trial court cannot make credibility det
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