Jones v. Boot Bar & Grill

350 So.3d 968

Gregory JONES, Jr.

v.The BOOT BAR & GRILL, C. Napco, Inc., Craig Napoli, Nancy Napoli, Aline Napoli, Robert Harris, John Doe

NO. 2022-CA-0154

Court of Appeal of Louisiana, Fourth Circuit.

October 5, 2022

G. Karl Bernard, KARL BERNARD LAW, LLC, 1615 Poydras Street, Suite 101, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT

Joanne P. Rinardo, Denia S. Aiyegbusi, Melissa M. Lessell, DEUTSCH KERRIGAN, L.L.P., 755 Magazine Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Joy Cossich Lobrano, Judge Paula A. Brown, Judge Dale N. Atkins )

Judge Dale N. Atkins

Plaintiff/Appellant, Gregory Jones, Jr. ("Mr. Jones"), seeks review of the trial court's November 30, 2021 judgment, which granted the Motion for Summary Judgment filed by Defendant/Appellee, CJN Inc. d/b/a The Boot ("CJN"), and dismissed with prejudice all claims against CJN. The November 30, 2021 judgment also granted CJN's Motion to Strike portions of Mr. Jones’ affidavit and exhibits attached to his opposition to the Motion for Summary Judgment. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of a physical altercation between Mr. Jones and Robert Harris Elledge ("Mr. Elledge") that occurred late on November 22, 2013. On that evening, Mr. Jones, who was a student at Loyola University, went with his friend Jonathan Malbrue ("Mr. Malbrue") to the Boot, a bar near Loyola and Tulane Universities located at Zimple and Broadway Streets. After spending some time inside the Boot, Mr. Jones and Mr. Malbrue walked outside where they encountered Wynn O'Donnell ("Ms. O'Donnell"), a Tulane University student who was waiting for a pizza from a restaurant called the Dough Bowl. Although the Dough Bowl was located inside the Boot, it had an outdoor window for takeout service, and it was a separate entity from the Boot. All parties agree that Mr. Jones approached Ms. O'Donnell and engaged her in conversation. Ms. O'Donnell was accompanied that night by her boyfriend, Mr. Elledge. Mr. Jones and Mr. Elledge exchanged words regarding Mr. Jones’ interaction with Ms. O'Donnell, and following soon thereafter the two men engaged in a scuffle. During this altercation, Mr. Jones suffered injuries to his eye. The manager of the Dough Bowl separated the men, and Ms. O'Donnell and Mr. Elledge subsequently left the scene.

MR JONES’ PETITION FOR DAMAGES

On November 20, 2014, Mr. Jones filed a Petition for Damages ("Petition") naming the Boot, the purported corporation owning the Boot; the individual owners of the Boot; Mr. Elledge, alleging him to be an employee of the Boot;¹ and John Doe, a supposed employee of the Boot whom Mr. Jones contends held him from behind while Mr. Elledge punched him. A previous Motion for Summary Judgment dismissed the individual owners; and Mr. Jones subsequently amended his Petition several times to correct the names of the parties, including substituting an unknown legal successor for Mr. Elledge, who is deceased.²

CJN'S JULY 14, 2021 MOTION FOR SUMMARY JUDGMENT

On July 14, 2021, CJN filed a Motion for Summary Judgment, contending that it was entitled to summary judgment because Mr. Jones would be unable to show that Mr. Elledge was working for the Boot at the time of the altercation. Regarding John Doe, CJN noted that Mr. Jones had neither identified him nor demonstrated that he was an employee of the Boot. Alternatively, CJN argued that whether Mr. Elledge or John Doe were working the night of the subject incident was immaterial "because an alleged assault off CJN's premises would have been totally unrelated to [their] duties and, thus, outside the course and scope of [their] employment with CJN." In sum, CJN argued that "[a]ny claims of negligence against CJN must be dismissed because no on-duty Boot employee was involved in the altercation."

CJN also attached numerous exhibits to its Motion for Summary Judgment, including (1) Mr. Jones’ January 25, 2016 deposition; (2) Mr. Malbrue's September 28, 2015 and January 22, 2016 affidavits; (3) Mr. Elledge's August 13, 2015 affidavit; (4) Ms. O'Donnell’s August 30, 2015 affidavit; (5) Mr. Brinich's June 7, 2016 affidavit; (6) Chad Maiuri's ("Mr. Maiuri") September 3, 2015 affidavit; (7) Mr. Maiuri's January 18, 2017 deposition; and (8) Aline Napoli's ("Ms. Napoli") February 2, 2016 affidavit. Each of these exhibits is discussed in turn.

(1) Mr. Jones’ January 25, 2016 Deposition

CJN attached Mr. Jones’ January 25, 2016 deposition as an exhibit to its Motion for Summary Judgment. At the deposition, Mr. Jones testified that he encountered Ms. O'Donnell and Mr. Elledge at the Dough Bowl's outdoor tables. When asked whether Mr. Elledge had been inside the Boot prior to the altercation, Mr. Jones answered, "I [do not] know." Mr. Jones further explained that "[t]he first time that [he] saw [Mr. Elledge] was when [Mr. Elledge] approached [him] when [he] was having a conversation with [Ms. O'Donnell]."

When asked why he presumed that Mr. Elledge worked for the Boot on the night of the subject incident, Mr. Jones responded that "one of the employees told [him] that [Mr. Elledge] was working at The Boot." He described the employee who provided the information as "[o]ne of the bouncers" and as "a large white male" whose height he estimated to be six feet, two inches. In particular, Mr. Jones testified that the employee "told [him] that [Mr. Elledge's] name was Harris and that he does work at The Boot." However, when asked whether the employee told him that Mr. Elledge had worked that evening, Mr. Jones answered, "[N]o."

Regarding John Doe, Mr. Jones testified that he turned and looked at a man who grabbed him from behind during the altercation and that the man was wearing a Boot t-shirt, so he assumed that the man was an employee. He admitted he had not seen the man inside the Boot earlier that evening, and he did not know if the man was on duty at the time of the altercation.

(2) Mr. Malbrue's September 28, 2015 and January 22, 2016 Affidavits

While in his initial, September 28, 2015 affidavit Mr. Malbrue stated that both Mr. Elledge and the unknown man who held Mr. Jones were wearing Boot employee t-shirts, he admitted in his subsequent, January 22, 2016 affidavit that he had no firsthand knowledge if the man who fought with Mr. Jones was working at the Boot that night or at the time of the fight. Further, he stated that he had no knowledge if the person who broke up the fight, whom he stated was wearing a Boot t-shirt, was an employee or was working there that night.

(3) Mr. Elledge's August 13, 2015 Affidavit

CJN attached Mr. Elledge's August 13, 2015 affidavit to its Motion for Summary Judgment. Therein, Mr. Elledge stated that while he was employed by the Boot on the date of the subject incident, he "was off that evening" and "spent the evening with [his] girlfriend and some other friends." Additionally, he attested that "[n]o [other] Boot employee was involved in the brief altercation" and that "[n]o one was holding [Mr.] Jones ...."

(4) Ms. O'Donnell’s August 30, 2015 Affidavit

In her affidavit, Ms. O'Donnell attested that on the night of the subject altercation, she "spent the entire evening with" her then-boyfriend, Mr. Elledge. Though she identified Mr. Elledge as an employee of the Boot, she stated that "[h]e had been off from work all that day and evening." Additionally, she provided that "[a]t no time during the brief altercation, did [she] see any other person grab or hold [Mr.] Jones."

(5) Mr. Brinich's June 7, 2016 Affidavit

In his affidavit, Mr. Brinich identified himself as the manager of the Dough Bowl. He attested that CJN did not own the Dough Bowl. He provided that he knew Mr. Elledge and Ms. O'Donnell from his job at the Dough Bowl.

Mr. Brinich stated that he was working on the night of the subject incident and that Mr. Elledge and Ms. O'Donnell were waiting for a pizza in front of the convenience store attached to the Boot prior to the altercation. Further, Mr. Brinich attested that Mr. Elledge "was not working that night and was on a date with" Ms. O'Donnell. He stated that he "observed no one holding [Mr. Jones] during the altercation" and "observed no on-duty Boot employee involved in the altercation." He declared that he broke up the altercation between Mr. Jones and Mr. Elledge and was wearing a Dough Bowl t-shirt at the time.

(6) Mr. Maiuri's September 3, 2015 Affidavit

CJN attached both the deposition and the affidavit of Mr. Maiuri as exhibits to its Motion for Summary Judgment. In his September 3, 2015 affidavit, Mr. Maiuri identified himself as the general manager of the Boot on the night of the altercation. He attested that as part of his general manager duties, he scheduled the work shifts of the employees and that Mr. Elledge did not work on the night of the subject altercation because he had not scheduled Mr. Elledge to work.

Mr. Maiuri stated that "[t]he Dough Bowl was not part of [t]he Boot." He further explained that he found out about the fight from Mr. Brinich after it occurred. He declared that "[n]o on-duty Boot employee was involved in the incident as they would have reported any altercation to" him.

(7) Mr. Mauri's January 18, 2017 Deposition

Likewise, in his deposition, Mr. Maiuri testified that while he was the general manager of the Boot and its attached convenience store, he had no authority over the Dough Bowl. He stated that the Dough Bowl had a table outside its walk-up window with benches.

Mr. Maiuri testified that the Boot "uniform" consisted of a navy blue t-shirt with "The Boot" and "Staff" written in white on the front and "Staff" written in white on the back. Further, he stated that he told his employees not to wear their shirts when not working, but the employee manual did not mention this. He also noted that the Boot sells t-shirts with its name on it, and some sold at that time were blue with white writing on them.

Regarding Mr. Elledge, Mr. Maiuri stated that he was...