Brady v. Washington

804 So. 2d 797, 1 La.App. 4 Cir. 0983, 2001 La. App. LEXIS 3015, 2001 WL 1616406
CourtLouisiana Court of Appeal
DecidedDecember 12, 2001
DocketNo. 2001-CA-0983
StatusPublished

This text of 804 So. 2d 797 (Brady v. Washington) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brady v. Washington, 804 So. 2d 797, 1 La.App. 4 Cir. 0983, 2001 La. App. LEXIS 3015, 2001 WL 1616406 (La. Ct. App. 2001).

Opinion

| .PLOTKIN, Judge.

At issue in this appeal is whether the trial court properly granted summary judgment to the owner of a French Quarter bar in New Orleans against the plaintiff, a victim of a brutal attack by a man she alleges was employed at this bar. Finding that the plaintiff did not sustain her burden of proof in the summary judgment proceeding, we affirm.

The plaintiff, Kathryn Brady, first visited New Orleans from Texas for Mardi Gras 1998 at which time she met George Bell, Herbie Johnson, and Bobby Washington at a French Quarter bar called Bourbon Street Blues Club. She returned to New Orleans a few weeks later on March 18, 1998 and contacted Mr. Bell. That evening, Ms. Brady and Mr. Bell went to several bars in the French Quarter and eventually encountered Mr. Johnson. Ms. Brady continued to accompany Mr. Johnson once Mr. Bell got separated from the group. Ms. Brady and Mr. Johnson went to Monaghan’s Erin Rose, a bar in the French Quarter, and saw Mr. Washington, who then joined them as they went to another bar and then took a taxi to Johnson’s apartment at approximately 11:00 p.m. Later, Ms. Brady and Mr. Washington left the apartment in another taxi, stopped at Ms. Brady’s hotel room to get money, and returned to Monaghan’s Erin Rose after 3:00 a.m. | aDetermining that Ms. Brady was intoxicated and unruly, the bartender, Marcy McGill, eventually called a taxi to take Ms. Brady home. Mr. Washington walked Ms. Brady outside to meet the taxi, but once she got in the taxi at around 4:00 a.m., she insisted that the driver bring her back to the bar instead of her hotel. After allegedly returning to the bar and drinking more, Ms. Brady claims that Mr. Washington walked her down the street to the river and then attacked her.

Ms. Brady was found near the river with multiple stab wounds at approximately 6:00 a.m. She spent nine days in the hospital and underwent several surgeries. She changed her initial description of her attacker to the police several times. Eventually, Ms. Brady identified Mr. Washington as her attacker. Criminal charges were brought against Mr. Washington, he was tried by a jury, and the jury acquitted him.

On March 19, 1999, Ms. Brady filed a civil lawsuit for damages against Bobby Washington, and his alleged employer, James Monaghan and Monaghan Properties, Inc. Defendants, Mr. Monaghan and Monaghan Properties, Inc., filed a motion for summary judgment on June 19, 2000, claiming that Ms. Brady failed to offer any evidence to prove that Mr. Washington worked at Monaghan’s bar, or that, if he did work there, Ms. Brady failed to show that the alleged attack was related to his supposed employment there. With their motion, the defendants submitted the affidavits of James Monaghan, the owner of the bar and Marcy McGill, the former bar manager, both stating that Mr. Washington was never employed in the bar and had never work there.

Ms. Brady opposed the motion, submitting her own affidavit stating that on the night of the attack, she saw Mr. Washington behind the bar performing typical bar-tending functions. Ms. Brady also submitted the affidavit of George Bell who stated that Mr. Washington said that he worked at the bar.

[799]*799IsAfter a hearing, the trial court granted the defendants’ motion on December 19, 2000. Ms. Brady appeals this ruling.

In granting summary judgment in favor of the defendants, the trial court found that Ms. Brady had “completely failed to satisfy her burden of proof under Article 966 of the Louisiana Code of Civil Procedure to defeat summary judgment.” The court found that, based on the defendants’ documents, there was no genuine issue of material fact as to the defendants’ status as employer. The court also reviewed the standard for determining whether an employer could be held vicariously liable for the acts of its employees, and determined that even if Mr. Washington worked at the bar in question, the defendants’ evidence showed that the defendants would not be vicariously responsible under the applicable standard.

In her only assignment of error, Ms. Brady asserts that the trial court erred in granting the defendants’ summary judgment motion. Specifically, she argues that the court failed to consider the negligent hiring claim she set out in her petition. She also argues there exists a genuine issue of material fact as to Mr. Washington’s employment status at Monaghan’s Erin Rose bar. Finally, she claims that the trial court improperly analyzed vicarious liability in the case having found that Mr. Washington was not employed at Monaghan’s Erin Rose.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La.Code Civ. P. art. 966. Pursuant to 14the 1966 amendments to article 966, summary judgments are now favored, and the rules regarding summary judgments are to be liberally applied. La.Code Civ. P. art. 966(A)(2). The amendments leveled the playing field for the litigants, required equal scrutiny of documentation submitted by the parties, and removed the earlier overriding presumption in favor of trial on the merits. Marrogi v. Gerber, 2000-1091 (La.App. 4 Cir. 5/16/01), 787 So.2d 1098.

Article 966 was also amended to alter the burden of proof in summary judgment proceedings. The initial burden of proof remains on the movant to show that no genuine issue of material fact exists. However, if the movant will not bear the burden of proof at trial, his burden on the motion requires him not to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ. P. art. 966(C)(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983, 985.

After the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La.Code Civ. P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. La.Code Civ. P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations of his pleading, but his response, by affidavits or as [800]*800otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. Code Civ. P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

|fiThe existence of a genuine issue of material fact as to Mr. Washington’s employment status at Monaghan’s Erin Rose is the crucial determination in this case, so we will address that issue first. To support the motion for summary judgment, the defendants submitted the affidavit of James Monaghan, stating that he is the sole stockholder and president of Mon-aghan Properties, Inc., the owner of Mona-ghan’s Erin Rose.

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Related

Townley v. City of Iowa
702 So. 2d 323 (Louisiana Court of Appeal, 1997)
Shelton v. Standard/700 Associates
798 So. 2d 60 (Supreme Court of Louisiana, 2001)
Schwarz v. ADMINISTRATORS TUL. EDUC. FUND
699 So. 2d 895 (Louisiana Court of Appeal, 1997)
Independent Fire Ins. Co. v. Sunbeam Corp.
755 So. 2d 226 (Supreme Court of Louisiana, 2000)
Fairbanks v. Tulane University
731 So. 2d 983 (Louisiana Court of Appeal, 1999)
Dixon v. Evans Cooperage, Inc.
697 So. 2d 359 (Louisiana Court of Appeal, 1997)
Marrogi v. Gerber
787 So. 2d 1098 (Louisiana Court of Appeal, 2001)

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Bluebook (online)
804 So. 2d 797, 1 La.App. 4 Cir. 0983, 2001 La. App. LEXIS 3015, 2001 WL 1616406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-washington-lactapp-2001.