Coleman v. Lowery Carnival Co.

295 So.3d 427

Emerson and Colette COLEMAN, Individually and on Behalf of The Minor, Nakhia Coleman Plaintiffs-Appellants

v.LOWERY CARNIVAL COMPANY, Crabtree Amusements, Inc., T.H.E. Insurance Company, and The State Fair of Louisiana Defendants-Appellees

No. 53,467-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered April 22, 2020

LAW OFFICES OF JACK M. BAILEY, JR., By: Jack M. Bailey, Jr., Shreveport, Jack M. Bailey, III, Counsel for Appellants, Emerson and Colette Coleman, Individually and on Behalf of the Minor, Nakhia Coleman

THOMAS, SOILEAU, JACKSON, BAKER & COLE, L.L.P., Shreveport, By: Steven E. Soileau, Counsel for Appellee, The State Fair of Louisiana

LAW OFFICES OF THOMAS R. HIGHTOWER, JR., By: Thomas R. Hightower, Jr., Patrick Wade Kee, Thomas R. Hightower, III, Lafayette, Charles T. Texada, Jr., Counsel for Appellees, Lowery Carnival Company, Crabtree Amusements, Inc., and T.H.E. Insurance Company

Before PITMAN, STEPHENS, and McCALLUM, JJ.

STEPHENS, J.

Plaintiffs, Emerson and Colette Coleman, individually and on behalf of their minor child, Nakhia Coleman, appeal judgments by the First Judicial District Court, Parish of Caddo, State of Louisiana. Those judgments granted motions for summary judgment in favor of defendants, The State Fair of Louisiana, Lowery Carnival Company, and T.H.E. Insurance Company, and denied plaintiffs’ motion for leave to file an amended and supplemental petition. For the following reasons, the judgments of the trial court are reversed in part and affirmed in part.

FACTS AND PROCEDURAL HISTORY

This matter arises out of a personal injury suit filed by Emerson and Colette Coleman, individually and on behalf of their minor child, Nakhia (the "Colemans"), against The State Fair of Louisiana ("State Fair"), Lowery Carnival Company ("Lowery"), Crabtree Amusement, Inc. ("Crabtree"), and T.H.E. Insurance Company ("T.H.E."), the liability insurer for Lowery and Crabtree. In their petition for damages, the Colemans allege that on October 23, 2008, Nakhia, who was two years old at the time, fell approximately eight feet from a carnival ride at the state fair in Shreveport, Louisiana. According to the Colemans, upon falling, Nakhia struck her head on the barricade surrounding the ride and sustained a traumatic brain injury, which resulted in recurring epileptic seizures.

State Fair is a private corporation known to be the owner, host, and promoter of the state fair, an annual event held in Shreveport, Louisiana, which includes a carnival, livestock show, rodeo, and other exhibits and concessions. State Fair entered into a contract with Lowery (the "contract") to install and operate carnival rides at the fair. Lowery, in turn, entered into a verbal "handshake" agreement with Crabtree (the "agreement") to assist Lowery in fulfilling the contract. The Colemans’ petition contained general allegations of negligence against the defendants collectively for: breach of duty of care; failure to make sure Nakhia was the right age, height, size, and weight to safely ride the specific carnival ride from which she fell; failure to securely strap Nakhia into the ride cart; failure to stop the ride in time to prevent injury to Nakhia; and, failure to properly inspect, repair, or maintain rides to prevent such injuries to Nakhia. They also alleged the doctrine of res ipsa loquitur .

After several years of litigation and discovery, Lowery and T.H.E. (in its capacity as Lowery's insurer) filed a motion for summary judgment, followed shortly by State Fair's motion for summary judgment. Both Lowery and State Fair argued the Colemans could not establish one of the necessary elements to support their claims. Specifically, both defendants asserted they did not own, operate, or have custody or control of either the ride at issue or its operator. Three days prior to the hearing on the motions for summary judgment, the Colemans filed a motion for leave of court to file a second amended, supplemental, and restated petition, which motion was denied. Following arguments on the motions for summary judgment, but prior to the trial court's ruling, the Colemans filed a motion for leave to file a third amended and supplemental petition.

Thereafter, the trial court granted both motions for summary judgment and dismissed State Fair, Lowery, and T.H.E. (only in its capacity as Lowery's insurer) from the proceedings. A final judgment in accordance with the trial court's ruling on the motions for summary judgment was filed on August 21, 2019. Issued on that same date was a separate judgment denying the Colemans’ motion for leave to file a third amended and supplemental petition. This appeal by the Colemans ensued.¹

DISCUSSION

Legal Principles

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co. , 2012-2292 (La. 6/28/13), 144 So. 3d 791 ; Bank of Am., N.A. v. Green , 52,044 (La. App. 2 Cir. 5/23/18), 249 So. 3d 219. We view the record and all reasonable inferences to be drawn from it in the light most favorable to the nonmoving party. Hines v. Garrett , 2004-0806 (La. 6/25/04), 876 So. 2d 764.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So. 2d 880 ; Driver Pipeline Co. v. Cadeville Gas Storage, LLC , 49,375 (La. App. 2 Cir. 10/1/14), 150 So. 3d 492, writ denied , 2014-2304 (La. 1/23/15), 159 So. 3d 1058. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A genuine issue is one about which reasonable persons could disagree. Hines , supra ; Franklin v. Dick , 51,479 (La. App. 2 Cir. 6/21/17), 224 So. 3d 1130. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co. , 51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied , 2017-01251 (La. 10/27/17), 228 So. 3d 1230. A material fact is one that potentially ensures or precludes recovery, affects the ultimate success of the litigant, or determines the outcome of the dispute. Hines, supra ; Franklin, supra.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). When the motion for summary judgment is made and supported as provided in La. C.C.P. art. 966, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other proper summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial.

Weaver v. City of Shreveport , 52,407 (La. App. 2 Cir. 12/19/18), 261 So. 3d 1079.

Louisiana courts have adopted a duty-risk analysis in determining whether liability exists under the facts of a particular case. Under this 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; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and, (5) actual damages. Bufkin v. Felipe's La., LLC, 2014-0288 (La. 10/15/14), 171 So. 3d 851 ; Flipping v. JWH Properties, LLC , 50,648 (La. App. 2 Cir. 6/8/16), 196 So. 3d 149.

Lowery's Motion for Summary Judgment

In their first assignment of error, the Colemans assert the trial court erred by granting summary judgment in favor of Lowery. They argue multiple genuine issues of material fact exist that render summary judgment improper. Specifically, the Colemans claim material questions of fact remain regarding whether: 1) Lowery actually employed the operator of the Zamperla Mini-Jet (the name of the specific ride from which Nakhia fell); 2) Lowery is liable under a theory of apparent authority; 3) Lowery entered a joint venture with Crabtree and formed a partnership; and, 4) Lowery hired Crabtree as a subcontractor but is still liable because it retained control over Crabtree and knew or should have known about Crabtree's unsafe policies.

Lowery asserted in its motion for summary judgment and maintains on review that the Mini-Jet was at all times owned, operated, and controlled by Crabtree and, furthermore, that the ride operator was an employee of Crabtree. In support of its motion, Lowery submitted the affidavits of the company's owners, Willie and Tony Lowery. Both affiants testified Lowery never owned, controlled, had custody of, or exercised any supervision or any control, operational or otherwise, of the ride in question. They further stated no employee of Lowery ever exercised any supervision or any control, operational or otherwise, over the Mini-Jet.

The Colemans opposed Lowery's motion and submitted the following in support of their position: 1) the contract; 2) the transcript of La. C.C.P. art. 1442 deposition testimony of Anthony Lowery, Lowery's corporate representative; 3) the transcript of...