Downs v. EOM ENTERTAINMENT, INC.

997 So. 2d 125, 2008 La. App. LEXIS 1341, 2008 WL 4647688
CourtLouisiana Court of Appeal
DecidedOctober 22, 2008
Docket43,654-CA
StatusPublished
Cited by2 cases

This text of 997 So. 2d 125 (Downs v. EOM ENTERTAINMENT, INC.) 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
Downs v. EOM ENTERTAINMENT, INC., 997 So. 2d 125, 2008 La. App. LEXIS 1341, 2008 WL 4647688 (La. Ct. App. 2008).

Opinion

997 So.2d 125 (2008)

Alexis DOWNS, et al., Plaintiffs-Appellees,
v.
E.O.M. ENTERTAINMENT, INC., Defendant-Appellant.

No. 43,654-CA.

Court of Appeal of Louisiana, Second Circuit.

October 22, 2008.

*127 Elizabeth C. Brown, West Monroe, for Appellant.

Jefferson B. Joyce, Crawford & Joyce, Monroe, for Appellees.

Before BROWN, PEATROSS & DREW, JJ.

PEATROSS, J.

The defendant amusement park appeals in this case involving an injury sustained at a haunted house it operated. The trial court found in favor of Alexis Downs, who was allegedly hurt on the "coffin chute slide," and awarded him less than $2,400 in total damages. We affirm the trial court judgment.

FACTS

On October 31, 2005, Mr. Downs and his wife, Shannon, went to the Edge of Madness (E.O.M.) amusement park in Calhoun, Louisiana. Mrs. Downs' brother, an E.O.M. employee, had given them free passes. During their visit, they rode the coffin chute slide in the Castle exhibit.[1] The ride consisted of two separate slides. A rider would recline on the slide at an angle; when the trapdoor at the rider's feet opened, the rider then slid down into a pit filled with balls. Each slide had two operators and its own controls. One E.O.M. employee at the top of the slide opened the trapdoor by pushing a button; the trapdoor, which was made of sheet metal, opened upward. According to the person who installed the ride's electronic components, there was a 15-second delay before the trapdoor could reset. A pressure pad in the ball pit reset the trapdoor. A second E.O.M. employee stood at the bottom of the slide and told the operator at the top when to send the next rider. If the rider missed the pressure pad when landing in the ball pit, the employee at the bottom of the slide would go in the pit and hit it.

Mrs. Downs encountered no problems when she rode the coffin chute slide. According to Mr. Downs, however, when he rode it, the trapdoor on the slide clamped down on both of his shins, injuring his legs, particularly the left one.

In March 2006, Mr. Downs and his wife filed suit against E.O.M. Entertainment, Inc., which owned the amusement park. They alleged that E.O.M. failed to properly *128 maintain its facility or train its employees.

A bench trial was held in January 2008. In addition to their own testimony, the plaintiffs presented that of Mrs. Downs' mother, with whom they were living in October 2005, and Mr. Downs' employer at the time he was allegedly injured. Mr. Downs' medical records and the deposition of one of his treating doctors, Dr. William Morrison, were admitted into evidence. Testifying for E.O.M. were Carolyn Hill, who founded the amusement park and served as a corporate officer for E.O.M.; her husband, Dr. Lawrence Hill, who served as an onsite medical doctor for the park; their son-in-law, Jackie Lowery, who installed the electronic part of the coffin chute slide; Brian Hopkins, the head of E.O.M. security; and Diane McCaskal, a house captain for the Castle.

On February 12, 2008, the trial court issued its written ruling and judgment. It held that the plaintiffs "barely" carried their burden of proof as to whether the accident happened. The court found that Mr. Downs' injuries were minimal at best. Further finding that Mr. Downs "chose" not to go to work, as opposed to being "caused" to miss work due to his "injuries," the court awarded only $250 in lost wages. Noting that it was hard pressed to even see a scar, it awarded $200 for pain and suffering. Finally, the court awarded medical expenses of $1,860.98, although it stated that it found them "rather high."

The defendant appeals.

LIABILITY

In two assignments of error, the defendant contends that the trial court erred in finding that an accident even occurred, much less that E.O.M. was at fault for failing to maintain its equipment or properly train its employees. It insists that its amusement park runs "like a well oiled machine." In addition to having deputies present while it is open, it has its own security team and an on-duty physician. There are two "house captains" for each house whose jobs are to go through the house and make sure that the "actors" for that house are in place. The defendant maintains that had an accident occurred, there would have been several witnesses. It emphasizes the fact that Mr. Downs declined all offers of medical attention, as well as Ms. McCaskal's testimony that he smelled strongly of alcohol when she encountered him after it was reported to her that he had been injured.

Law

The duty of the proprietor or operator of an amusement place to his patron is that of a business invitee. He impliedly represents that he has used reasonable care in inspecting and maintaining the premises and equipment furnished by him and that they are reasonably safe for the purposes intended. Rivere v. Thunderbird, Inc., 353 So.2d 346 (La.App. 1st Cir.1977), writ denied, 354 So.2d 1380 (La. 1978); Harvey ex rel. Bates v. T.H.E. Insurance Company, XXXX-XXXX (La.App. 3d Cir.6/28/00), 764 So.2d 354.

A proprietor of a place of public amusement is not an insurer of the safety of his patrons. Rivere v. Thunderbird, Inc., supra; Harvey ex rel. Bates v. T.H.E. Insurance Company, supra; Hutchinson v. Knights of Columbus, Council No. 5747, XXXX-XXXX (La.2/20/04), 866 So.2d 228. However, such a proprietor will be liable if he is guilty of negligence. Harvey ex rel. Bates v. T.H.E. Insurance Company, supra.

In general, the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing them to unreasonable risks of harm or *129 injury. Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La. 1993); Mosley v. Temple Baptist Church Of Ruston, Louisiana, Inc., 40,546 (La. App.2d Cir.1/25/06), 920 So.2d 355.

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong; and, where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a fact finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

Where the fact finder's conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, supra.

Discussion

Mr. Downs and his wife went down separate slides on the coffin chute ride. Mr.

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