NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

ZACHARY McCORMICK

VERSUS ABC INSURANCE COMPANY, TYLER M. SMITH, XYZ

INSURANCE COMPANY, ET AL,

DATE 4F JUDGMENT.• APR 17 2024

ON APPEAL FROM THE TWENTY- FIRST . JUDICIAL DISTRICT COURT PARISH OF LIVINGSTON, STATE OF LOUISIANA

NUMBER 1.74347, DIVISION A HONORABLE JEFFREY S. JOHNSON, JUDGE

Jon M. Yeager Counsel for Plaintiff - Appellant Anthony V. Lanasa, Jr. Zachary McCormick Mark G. Tauzier Metairie, Louisiana Michael K. Melucci Melissa M. Ha Hammond, Louisiana William H. Eckert Counsel for . Defendant -

Appellee Daniel G. Collarini Nicholas Wyatt Crawford Nora E. Chapkovich New Orleans, Louisiana Michael J. Tarleton Canton, Mississippi William R. Pipes Blaine T. Aydell Baton Rouge, LouisianaBEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.
Disposition:. AFFIRMED.Chutz, J. Appellant, Zachary McCormick ( plaintiff), 

### appeals a summary judgment dismissing his claims against defendant, Nicholas Wyatt Crawford (defendant), for 

### damages he sustained from a battery committed by a third person while he was on defendant's property. We affirm.

FACTUAL AND PROCEDURAL HISTORY 

### Plaintiff and defendant were friends as a result of plaintiffs long-term friendships with defendant' s son, Alex, and daughter, Ambria. Plaintiffand Ambria dated each other on and off. Ambria also was involved at one time in a romantic 

### relationship with Tyler Smith ( Smith), who was the father of her son. Although plaintiffand Smith previously were friends, their relationship became acrimonious after plaintiff began dating Ambria. On two occasions prior to the incident in question, defendant intervened to prevent a physical confrontation between plaintiff 

### and Smith when they encountered each othereitheron ordeparting from defendant's property. 

### On July3, 2021, plaintiffwas an invited guest at a seafood boil being held at a camp owned by defendant in Killian, Louisiana. Plaintiff was outside on a deck 

### assisting defendant when he suddenly heard Ambria, who apparently had just arrived, shout a warning to watch out. Plaintiff looked up and turned around to see 

### Smith about an arm's length coming toward him swinging. After a few blows were exchanged, Smith maneuvered plaintiff into a chokehold. They then both fell over backward from the decktothe ground, adistance ofapproximately nine inches, with Smith still holding plaintiff in a chokehold. The entire altercation occurred in a

matter of seconds. 

### Plaintiffsustained serious injuries from the attack, including a broken neck, which caused him to suffer temporary, partial paralysis. Smith subsequently pled no contest to a charge ofsecond-degree battery.

3On rune 9, 2022, plaintiff filed a petition for damages against defendant and

several other parties.' Plaintiffalleged defendantwas negligent in failing towarn of 

### and/or safeguard plaintiff against the foreseeable risk of harm from an attack by Smith and failing to discover and safeguard plaintiffby installing a rail on the deck to prevent the reasonably foreseeable risk of a fall therefrom. Defendant 

### subsequently filed a motion for summaryjudgment on the grounds he owed no duty to plaintiffto protect him against an unforeseeable intentional criminal actbyathird - party and ofwhich there was insufficient time to warn plaintiff. Defendant asserted 

### itwas not reasonablyforeseeablethatSmith would appearat his campwhile plaintiff

was there and assault him. 

### Additionally, defendant alleged the lack ofa railing did 

### not make the deckunreasonably dangerous and was not a cause - in - fact ofplaintiff's injuries. He pointed out the actual cause ofplaintiff's fall was Smith' s assault rather than the lack of a railing on the deck. 

### Defendant further noted a railing was not required by the International Residential Code (IRC), which is incorporated into the Louisiana Administrative Code, since the deck was less than 30 inches above ground. See 17 LAC § 107; IRC § 312. 1. 1.. 

### Following a hearing, the district court granted defendant' s motion for 

### summary judgment and dismissed plaintiffs claims against defendant with prejudice, reserving plaintiff's rights as to any other parties. The district court concluded there was no genuine issue of fact that defendant did not invite Smith to 

### his camp onthedate ofthe incidentand itwas not reasonably foreseeable that Smith would arrive at the camp on that particular date and attack plaintiff. Plaintiff now appeals.

1 Plaintiff also named Smith, ASC Insurance Company ( Smith' s alleged insurer), and XYZ Insurance Company ( Crawford's alleged insurer) as defendants in this matter. However, the summaryjudgment now before us was granted pursuantto a motion for summaryjudgment filed only on defendant' s behalf. The other named defendants are not referenced in the summary judgment and are not parties to this appeal. 4SUMMARY JUDGMENT STANDARD



### A motion for summary judgment shall be granted only if the motion, memorandum, and supporting documents admitted for purposes of the motion for summaryjudgment 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(A)(3). 

### Ritchey v State Farm MutualAutomotive Insurance Company, 17-0233 ( La.App. 1st Cir. 9/ 15/ 17), 228 So.3d 272, 275. The burden of proof rests with the mover. La. C.C.P. art. 966(D)( 1). 

### But ifthe moving party will not bear the burden ofproof at trial on the issue before the court on the motion, the moving party' s burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party' s claim, action, or defense. Thereafter, ifthe adverse 

### party fails to produce factual evidence sufficient to establish the existence of a genuine issue ofmaterial fact,the mover is entitled to summaryjudgment as amatter of law. La. C.C.P. arts. 966(D)( 1); Yates v. Our Lady oftheAngels Hospital,Inc., 19-0661 ( La.App. 1st Cir. 2/20/20), 2020 WL 862167, at * 2 ( unpublished). 

### 1n ruling on a motion for summaryjudgment,the district court' s role is not to make credibility determinations, evaluate the weight ofthe evidence or determine the truth ofthe matter, but instead to determine whether there is a genuine issue of triable fact. 

### All doubts should be resolved in favor of the non-moving party. Lambert Gravel Company, Inc,v. Parish ofWest Feliciana, 15- 1225 (La.App. 1 st Cir. 9120116), 234 So.3d 889, 896. On appeal, appellate courts review the grant or 

### denial ofa motion for summaryjudgment de novo underthe same criteria governing the district court's consideration of whether summary judgment is appropriate. 

### Ritchey, 228 So.3d at 275. DISCUSSION 

### Plaintiff argues the district court legally erred in making factual findings despite conflicting evidence and in making assumptions and drawing inferences in 5favor of defendant. 

### Plaintiff further maintains it was legally inconsistent for the



### district courtto grant summaryjudgment in light ofdefendant' s failure to warn him ofthe danger on his property when the court found " operative facts present" that triggered a duty to warn. 

### A threshold issue in any negligence action is whetherthe defendant owed the plaintiffa duty, which is a question oflaw. Blackledge v. Font,06- 1092 (La.App. 1 st Cir. 3/23/07), 960 So.2d 99, 103. Absent aduty owed to the plaintiff,there is no liability. See Blackledge, 960 So.2d at 102. Under Louisianajurisprudence, a homeowner is not an insurer ofthe safety ofpersons lawfully on the premises. 

### In general, the duty owed by a homeowner to a social guest is to avoid reasonably foreseeable danger to the guest and to keep the premises safe from hidden dangers in the nature oftraps orpitfalls. Blackledge, 960 

### So.2d at 103. Further,a homeownergenerally has no dutyto protectothers from the unanticipated or unforeseeable criminal acts of third persons. Only when the homeowner has knowledge or can be imputed with knowledge of a third person' s intended criminal conduct, and which is within the power of the homeowner to protect against, does such a duty toward a guest arise. 

### Thus, before a duty can be imposed on the landowner, it must be determined whether the criminal act in question was reasonably foreseeable. Blackledge, 960 So.2d at 103. 

### In this case, plaintiffargues defendant had a dutyto warn him he had invited Smith to his camp because it was reasonably foreseeable Smith would attack him 

### given their acrimonious relationship and the prior confrontations occurring between them in defendant' s presence. While defendant admitted he did not warn plaintiff 

### Smith might be at the camp on July 3, he denied either inviting Smith to the camp or having any knowledge he would come to the camp on that date. In opposition, plaintiffpresented Smith's denial ofa discovery request for admission that he was

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### not invited to defendant' s camp, which was denied by Smith.2 

### Additionally, in his

deposition, Smith described a phone conversation he had with defendant a few days 

### before the incident during which he asked defendantwhen he wanted Smith to bring his flatboat to the camp. According to plaintiff,these exhibits created a genuine 

### issue ofmaterial fact regardingwhether Smith was invitedto the camp on the day of the incident since defendant denied both inviting Smith to the camp or discussing Smith bringing his boatthere during their phone conversation. Based on our de novo review, we find there is no genuine of fact that Smith was not invited by defendantto his camp forJuly3. As noted, defendant specifically 

### denied inviting Smith tothe camp. In his deposition, Smith testified that priortothe incident, he considered himself to have an " open invitation" to visit defendant' s camp, and defendant did nottell him hewas unwelcome there until afterthe incident. 

### Nevertheless, he admitted he was " not directly" invited to be at the camp forJuly 3, 

### defendant did not know he was coming that day, and hejust showed up atthe camp unannounced not knowing ifdefendantwas even there. As to his alleged discussion 

### with defendant about bringing his flatboat to the camp, which defendant denied, Smith testified no particular time was agreed upon for him to do so. Thus, even if a 

### discussion about Smith bringing the flatboat to the camp did occur, there was no reasonable basis for defendant to anticipate Smith would bring the flatboat to the 

### camp specifically on July 3. In fact, Smith admitted he did not even know if 

### defendant was at the camp on July 3, and he did not bring the flatboat with him to

2 Plaintiffalso attached to his opposition memorandum a police report in which it was noted Smith stated he was invited to defendant's camp. Defendant objected to the police report in his reply memorandum, arguing the unauthenticated police report was not competent summaryjudgment evidence, and the district court sustained the objection. A police report that is not accompanied by an affidavit ora deposition ofthe officer is not considered competent evidence in a summary judgment proceeding. La. C.C.P. art. 967; Carias v. Laren, 14-0655 ( La. App. 1 st Cir. 319115), 2015 WL 1019481, at *4 (unpublished), writ denied, 15-0879 (La. 8! 28/ 15), 176 So.3d 402; Lewis v. Jabbar, 08- 1051 ( La. App. 1st Cir. 1112109), 5 So.3d 250, 254-55. Because the police report was not authenticated or sworn to by affidavit ordeposition ofthe officerand wastimelyobjected to by defendant, it lacks any evidentiary value in creating a genuine issue ofmaterial fact herein. Lewis, 5 So.3d at 254-55. Vithe camp. This evidence contradicts plaintiffs claim that Smith was invited to the



### camp, as well as the suggestion that arrangements had been made for him to bring his flatboat to the camp at a specific time or date, particularly sometime over the 

### July 4weekend. Moreover, Smith'stestimony indicatingthatbeforethe incidenthe believed he had an "open invitation" to the camp explained and was consistent with 

### his denial ofthe discovery request that he admit he was not invited to the camp on July 3.

### Considering the evidence presented, we agree with the district court there is no genuine issue offactthat itwas not reasonably foreseeable Smith would arrive at the camp uninvited on July 3 while plaintiffwas there. A homeowner has no duty to protect a guest against unforeseeable criminal acts by a third party. Blackledge, 960 So.2d at 103. 

### Therefore, because defendant did not invite Smith to the camp 

### and it was not reasonably foreseeable he would arrive there unannounced on July 3, defendant had no dutyto warn plaintiffthere was a possibility Smith might come to the camp on July 3. In the absence of the breach of a duty owed to plaintiff, defendant cannot be held liable for plaintiffs injuries. See Blackledge, 960 So.2d at 102. Further, we find no merit in plaintiff's contention that genuine issues of fact 

### existastowhether defendant breached his duty ofcare by failingto warn him ofthe impeding attack once Smith arrived atthe camp and in failing to prevent the attack. The deposition testimony of plaintiff, defendant, and Smith are all consistent in indicating the attack occurred almost immediately upon Smith's arrival and so 

### quickly that defendant had no time to warn plaintiff once he became aware of Smith' s arrival. In his deposition, Smith testified defendant did not have time to tell him to 

### leave the camp before the "confirontation" with plaintiffbecause he was atthe camp 

### only seconds before it occurred. Defendant testified he first saw Smith when 8plaintiff "hollered," 

### afterwhich he saw Smith movingtoward plaintiff. He indicated

he had no time to warn plaintiff or to intervene because it was all over in three or four seconds. 

### Plaintiff offered no evidence refuting defendant' s testimony and admitted he had " no idea" 

### how much time elapsed between defendant first seeing Smith and the attack on plaintiff. According to plaintiff,however, Smith attacked 

### him onlya " splitsecond" after he looked up and first saw Smith. Therefore, at most, only seconds could have elapsed between when defendant heard plaintiffshout out and Smith' s attack on plaintiff. The evidence presented clearly established there 

### was insufficient time for defendant to have warned plaintiffofthe impeding attack orto have intervened or prevented the attack, even ifhe had aduty to do so. Based on our de nova review, we find defendant established a lack offactual support for an essential element of plaintiffs negligence claims, which is that defendant had a duty to warn of or protect plaintiff from the criminal attack 

### committed by Smith. Because plaintiffthereafterfailedto produce factual evidence sufficientto establish the existence ofa genuine issue ofmaterial fact regarding this 

### issue, the district court properly granted summaryjudgment in favor ofdefendant.3 See La. C.C.P. art. 966(D)( 1). CONCLUSION 

### Forthese reasons, the May 23, 2423judgment ofthe district court dismissing 

### the claims of plaintiff, Zachary McCormick, against defendant, Nicholas Wyatt

3 In his petition for damages, plaintiffalleged defendant was also at fault because the lack ofrails on the camp' s deck created an unreasonably dangerous condition. On appeal, however, plaintiff has raised no issue regarding the dismissal ofthis particular claim. Regardless, in support ofhis motion for summaryjudgment, defendant presented excerpts from plaintiffs deposition in which he acknowledged he was unaware ofanything wrong with the deckand aphotograph showingthe deckwas only nine inches above ground. Defendant maintained there was no requirementfor rails on a deck less than thirty inchesabove grounds and, moreover,the riskofaguest being injured by being dragged offa deck during a criminal battery while in a chokehold was not a riskwithin the scope ofany duty requiring rails on a deck. See 17 LAC § 107; IRC § 312. 1. 1. In opposition, plaintiff failed to present any evidence showing the lack of rails in this case constituted an unreasonably dangerous condition orwas a cause ofhis injuries.

KJCrawford, with prejudice, is affirmed. All costs of this appeal are assessed to plaintiff-

appellant. AFFIRMED.

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