Vincent Caminita, Jr. and Misty Caminita, for and on Behalf of Their Minor Child, Gino Caminita Versus The Roman Catholic Church of the Archdiocese of New Orleans, and Our Lady of Divine Providence Roman Catholic Church, Metairie, Louisiana D/B/A Our Lady of Divine Providence School

VINCENT CAMINITA, JR. AND MISTY NO. 20-C-54
CAMINITA, FOR AND ON BEHALF OF
THEIR MINOR CHILD, GINO CAMINITA FIFTH CIRCUIT
VERSUS COURT OF APPEAL
THE ROMAN CATHOLIC CHURCH OF THE STATE OF LOUISIANA
ARCHDIOCESE OF NEW ORLEANS, AND
OUR LADY OF DIVINE PROVIDENCE
ROMAN CATHOLIC CHURCH, METAIRIE,
LOUISIANA D/B/A OUR LADY OF DIVINE
PROVIDENCE SCHOOL
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 786-180, DIVISION "M"
HONORABLE ROBERT J. BURNS, JUDGE PRO TEMPORE PRESIDING
July 08, 2020
MARC E. JOHNSON
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and John J. Molaison, Jr.
WRIT GRANTED; JUDGMENT REVERSED; SUMMARY JUDGMENT
GRANTED; CLAIMS DISMISSED
MEJ
FHW
JJM
COUNSEL FOR PLAINTIFF/RESPONDENT,
VINCENT CAMINITA, JR. AND MISTY CAMINITA, FOR AND ON BEHALF
OF THEIR MINOR CHILD, GINO CAMINITA
Preston L. Hayes
George B. Recile
COUNSEL FOR DEFENDANT/RELATOR,
THE ROMAN CATHOLIC CHURCH OF THE ARCHDIOCESE OF NEW
ORLEANS, AND OUR LADY OF DIVINE PROVIDENCE ROMAN
CATHOLIC CHURCH, METAIRIE, LOUISIANA D/B/A OUR LADY OF
DIVINE PROVIDENCE SCHOOL
Michael L. Deshazo
Christine W. Adams
JOHNSON, J.
Relators/Defendants, the Roman Catholic Church of the Archdiocese of
New Orleans and Our Lady of Divine Providence Roman Catholic Church,
Metairie, Louisiana d/b/a Our Lady of Divine Providence School, seek review of
the trial court’s January 6, 2020 judgment that denied their motion for summary
judgment. Relators argue that summary judgment should have been granted in
their favor because Respondents/Plaintiffs, Vincent Caminita, Jr. and Misty
Caminita, for and on behalf of their minor child, Gino Caminita, failed to present
sufficient summary judgment evidence in support of their action that Relators had
actual or constructive notice of any alleged water or unreasonably dangerous
condition in the stairwell where Gino allegedly fell on August 29, 2017. Relators
urge this Court to grant their motion for summary judgment and dismiss all of
Respondents’ claims against them. For the following reasons, we grant the writ
application, reverse the trial court’s January 6, 2020 judgment, render summary
judgment in favor of Relators, and dismiss Respondents’ claims.
The summary judgment procedure is designed to secure the just, speedy, and
inexpensive determination of every action and is favored. La. C.C.P. art.
966(A)(2). Appellate courts review summary judgments de novo under the same
criteria that govern the trial court’s consideration of whether summary judgment is
appropriate. Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5 Cir.
9/19/18); 254 So.3d 1254, 1257, citing Batiste v. United Fire & Casualty Co., 17-
485 (La. App. 5 Cir. 3/14/18); 241 So.3d 491, 496. Summary judgment shall be
granted “if the motion, memorandum, and supporting documents shows that there
is no genuine issue as to material fact and that the mover is entitled to judgment as
a matter of law.” Id., quoting La. C.C.P. art. 966(A)(3). A plaintiff may not
satisfy his/her burden on summary judgment by relying on allegations and
uncorroborated, self-serving testimony in response to the defendant’s properly
20-C-54 1
made and supported motion for summary judgment. Cavet v. Louisiana Extended
Care Hosp., 47,141 (La. App. 2 Cir. 5/16/12); 93 So.3d 1122, 1131.
A material fact is one that potentially ensures or prevents recovery, affects a
litigant’s ultimate success, or determines the outcome of the lawsuit. Populis v.
State Department of Transportation and Development, 16-655 (La. App. 5 Cir.
5/31/17); 222 So.3d 975, 980, quoting Pouncy v. Winn-Dixie La., Inc., 15-189 (La.
App. 5 Cir. 10/28/15); 178 So.3d 603, 605. An issue is genuine if it is such that
reasonable persons could disagree. If only one conclusion could be reached by
reasonable persons, summary judgment is appropriate as there is no need for a trial
on that issue. Id. Whether a particular fact in dispute is material for purposes of
summary judgment can only be determined in light of the substantive law
applicable to the case. Stogner, 254 So.3d at 1257, citing Jackson v. City of New
Orleans, 12-2742 (La. 1/28/14); 144 So.3d 876, 882, cert. denied, --- U.S ----, 135
S.Ct. 197, 190 L.Ed.2d 130 (2014).
The party moving for summary judgment bears the burden of proof.
Stogner, supra, citing La. C.C.P. art. 966(D)(1). However, if the mover will not
bear the burden of proof at trial, the moving party must only point out that there is
an absence of factual support for one or more elements essential to the adverse
party’s claims. Id. Thereafter, the burden shifts to the adverse party to produce
factual support sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial. Id. If the adverse party fails to meet this burden, there is
no genuine issue of material fact, and the mover is entitled to summary judgment
as a matter of law. Id. Once the motion for summary judgment has been properly
supported by the moving party, the failure of the adverse party to produce evidence
of a material factual dispute mandates the granting of the motion. Id., citing Babin
v. Winn Dixie La., Inc., 00-78 (La. 6/30/00); 764 So.2d 37, 40.
20-C-54 2
In the case at bar, on July 31, 2018, Respondents filed a “Petition for
Damages.” In their petition, Respondents alleged that, on August 29, 2017,
Gino—a fifth grader at Our Lady of Divine Providence School for the 2017-2018
school year—slipped and fell on the stairs because water had accumulated due to a
leak in the roof of the building; and, as a result, Gino sustained serious injuries.
They averred that the leaky roof and accumulated water on the stairs created an
unreasonably dangerous condition, pursuant to La. C.C. art. 2317, that caused Gino
to slip and fall.
Relators filed a “Motion for Summary Judgment” in response to the petition.
In their motion, Relators argued that Respondents were unable to produce any
evidence to support their allegations. They contended that there were no witnesses
to the incident, and aside from Gino’s self-serving testimony, there was no
evidence demonstrating the existence of an unreasonably dangerous condition at
the school; and, in fact, Gino immediately reported to the school administration
that he tripped and fell over his own schoolbag, making no mention of slipping on
any water on the ground. Relators further contended that Respondents had no
evidence to prove that Relators had actual or constructive notice of any
unreasonably dangerous condition at the school. In support of their motion,
Relators submitted excerpts from depositions from Gino, Vincent, and Misty;
affidavits from school administrators, Debbie Lobell, Mary Lovecchio, and Elvina
DiBartolo, attesting that Gino did not report slipping and falling in water, but
instead reported he tripped over his backpack; an incident report created by Mary
Lovecchio and accompanying notes stating that Gino tripped over his backpack
and fell; and, the affidavit of Jim Young, the school’s Facilities Manager, stating
there was no issue with the roof or the ceiling above the stairwell where Gino fell.
In opposition to the motion, Respondents maintained that the leaky roof and
accumulated water on the stairs created an unreasonably dangerous condition,
20-C-54 3
causing Gino to slip and fall. They alleged that Relators’ narrative of the events
was different from Gino’s sworn testimony; however, those were credibility
determinations inappropriate for summary judgment. Respondents presented the
following evidence in support of the position that there was a remaining genuine
issue of material fact on whether Relators had actual or constructive notice of the
unreasonably dangerous condition: the deposition of Mary Lovecchio, stating that
she continued to take notes after August 29, 2017, and she had no knowledge of
any water stains in the stairwell; the affidavit and report of Thomas Kelting—a
certified American Society of Home Inspectors inspector with a Masters of
Meteorology—that stated there was a heavy rain on the date of the incident, and
there were water stains on ceiling of the stairwell, indicating leaks in the roof,
when he inspected the property on November 20, 2019; excerpts of Gino’s
deposition, attesting that there was a moisture spot on the ceiling of the stairwell
dripping water when he fell; and, excerpts from Jim Young’s November 15, 2019
deposition, stating there were never any water stains above the stairs in August
2017, and the stairwell was in the same condition as of the date of his deposition.
In this matter, it would be Respondents’ burden to prove at trial that Relators
had actual or constructive notice of the alleged unreasonably dangerous condition
in the stairwell that caused Gino’s fall and injuries. When considering owner or
custodian liability, La. C.C. art. 2317.1 provides, in pertinent part,
[t]he 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.
To prove liability for an unreasonably dangerous defect, a plaintiff has the burden
of showing that the thing was in the custodian’s custody or control; it had a vice or
defect that presented an unreasonable risk of harm; the defendant knew or should
20-C-54 4
have known of the unreasonable risk of harm; and, that the damage was caused by
the defect. Cangelosi v. Treasure Chest Casino, L.L.C., 18-72 (La. App. 5 Cir.
7/31/18); 252 So.3d 559, 564, writ denied, 18-1446 (La. 11/20/18); 256 So.3d 997.
Thus, for summary judgment purposes, Relators were only required to point out
that there is an absence of factual support for one or more elements essential to
Respondents’ claims; and, Relators argued there was an absence of factual support
that they knew or should have known of the unreasonable risk of harm.
After de novo review, we find that Respondents failed to present evidence
that Relators knew or should have known of the unreasonable risk of harm, i.e., the
alleged water leak in the stairwell. Gino testified that he saw a moisture spot on
the ceiling that dripped water after he fell on the stairs. He stated that a classmate
helped him get up from the ground; however, an affidavit or deposition from said
classmate was not presented to attest to Gino’s recollection of the condition of the
stairwell. Additionally, Mr. Kelting’s affidavit and report failed to indicate, or
even insinuate, that the water stains—which were inspected over two years after
the incident—were present at the time of the incident. Thus, we find that Gino’s
self-serving testimony was not corroborated by evidence that there was a water
leak from the ceiling on the day he slipped and fell in the stairwell, and the
testimony does not create a genuine issue of material fact. See, Brown v. The
Blood Center, 17-750 (La. App. 4 Cir. 3/15/18); 239 So.3d 988, 992. As a result,
Respondents failed to prove that Relators had actual or constructive notice of the
alleged water leak in the stairwell. Therefore, we find that Relators are entitled to
summary judgment as a matter of law.
Accordingly, we grant Relators’ writ application, reverse the trial court’s
January 6, 2020 judgment, render summary judgment in favor of
Relators/Defendants (the Roman Catholic Church of the Archdiocese of New
Orleans and Our Lady of Divine Providence Roman Catholic Church, Metarie,
20-C-54 5
Louisiana d/b/a Our Lady of Divine Providence School), and dismiss the claims of
Respondents/Plaintiffs (Vincent Caminita, Jr. and Misty Caminita, for and on
behalf of their minor child, Gino Caminita).
WRIT GRANTED; JUDGMENT REVERSED;
SUMMARY JUDGMENT GRANTED;
CLAIMS DISMISSED
20-C-54 6
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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20-C-54
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
GEORGE B. RECILE (RESPONDENT) PRESTON L. HAYES (RESPONDENT) CHRISTINE W. ADAMS (RELATOR)
MICHAEL L. DESHAZO (RELATOR)
MAILED
HONORABLE ROBERT J. BURNS,
JUDGE PRO TEMPORE (DISTRICT JUDGE)
DIVISION "M"
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