Fredericks v. DAIQUIRIS & CREAMS

906 So. 2d 636, 2005 WL 675524
CourtLouisiana Court of Appeal
DecidedMarch 24, 2005
Docket2004 CA 0567
StatusPublished
Cited by15 cases

This text of 906 So. 2d 636 (Fredericks v. DAIQUIRIS & CREAMS) 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
Fredericks v. DAIQUIRIS & CREAMS, 906 So. 2d 636, 2005 WL 675524 (La. Ct. App. 2005).

Opinion

906 So.2d 636 (2005)

Lashawn G. FREDERICKS
v.
DAIQUIRIS & CREAMS OF MANDEVILLE, L.L.C., et al.

No. 2004 CA 0567.

Court of Appeal of Louisiana, First Circuit.

March 24, 2005.
Writ Denied June 17, 2005.

*638 Rykert O. Toledano, Jr., Gordon T. Herrin, Hector R. Lopez, Toledano & Herrin, Covington, for Plaintiff-Appellant La-Shawn G. Fredericks.

Thomas G. Buck, Blue Williams, L.L.P., Metairie, for Defendant-Appellee Daiquiris & Creams of Mandeville, L.L.C.

Before: PARRO, KUHN, and WELCH, JJ.

PARRO, J.

In this personal injury suit, LaShawn G. Fredericks appeals a summary judgment in favor of Daiquiris and Creams of Mandeville, L.L.C., dismissing his claims against it. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

LaShawn G. Fredericks (Fredericks), his date, Laurie, another friend, and another couple went to Daiquiris and Creams of Mandeville, L.L.C. (DCM) about 8:30 p.m. on April 1, 2001. A live band was playing, and as the evening progressed, there were about fifty people socializing, drinking, and dancing. About 9:30 p.m., Christopher Gonzales, Patrick Caminita, and Phillip Caminita (the Gonzales defendants) arrived. Fredericks and his party did not know them, but the Gonzales defendants began interacting with them, paying particular attention to Laurie, including buying her drinks, sitting next to her at the bar, and watching her dance. They also stared at Fredericks in a way that made him uncomfortable. The two bartenders and a DCM employee working the door observed Fredericks, his date, and the Gonzales defendants, but did not perceive anything threatening going on. No one in the Fredericks party complained to the DCM employees or asked for any assistance. Sometime after midnight, although Laurie was still inside and was apparently reluctant to leave, Fredericks decided it was time to go and went to get the car. As he left the building, the Gonzales defendants followed him into the parking lot, where they beat him severely before running away. Fredericks was able to stumble back inside, where help was obtained. As a result of the quick, but brutal attack, several of Fredericks' facial bones were fractured, including his left cheekbone, jawbone, and orbital bones; he also suffered head trauma and possible neurological damage and had to undergo several reconstructive surgeries to his face and teeth.

Fredericks eventually sued DCM, its insurer, the Gonzales defendants, and their insurers, seeking damages for his injuries. DCM filed a motion for summary judgment on the issue of liability, claiming there was no history of fighting or altercations at DCM, its employees saw nothing threatening in the interactions between Fredericks and the Gonzales defendants, Fredericks did not report to DCM employees that he felt intimidated, and Fredericks admitted he had no warning and could not foresee that the Gonzales defendants intended to attack him. DCM contended it had no duty to prevent something that could not be foreseen or anticipated. After a hearing, the court agreed, dismissing *639 Fredericks' claims against DCM.[1] This appeal followed.

APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Johnson v. Evan Hall Sugar Co-op., Inc., 01-2956 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486.

On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. LSA-C.C.P. art. 966(C)(2); Washauer v. J.C. Penney, 03-0642 (La.App. 1st Cir.4/21/04), 879 So.2d 195, 197.

Negligence

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315. For liability to attach under a duty-risk 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 (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 275-76. The imposition of liability under general negligence principles requires proof that the defendant had actual or constructive knowledge of the risks and failed to take corrective action within a reasonable time. Hardenstein v. Cook Constr., Inc., 96-0829 (La.App. 1st Cir.2/14/97), 691 So.2d 177, 183, writ denied, 97-0686 (La.4/25/97), 692 So.2d 1093.

Duty is a question of law. Simply put, the inquiry is whether a plaintiff has any law—statutory, jurisprudential, or arising from general principles of fault—to support his or her claim. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La.App. 1st Cir.5/9/03), 849 So.2d 622, 627, writ denied, 03-1579 (La.10/3/03), 855 So.2d 315. When no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Boland v. West Feliciana Parish Police Jury, 03-1297 *640 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 815-16, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231.

Duty of business owners to patrons

A business proprietor owes his patrons the duty to provide a reasonably safe place. Taylor v. Stewart, 95-1743 (La.App. 1st Cir.4/4/96), 672 So.2d 302, 306. The proprietor's general duty toward his patrons has been construed to encompass a number of more specific obligations. Taylor, 672 So.2d at 306-07. First, the proprietor must himself refrain from any conduct likely to cause injury to a guest. He must maintain his premises free from unreasonable risks of harm or warn patrons of known dangers thereon. Beyond these measures, the proprietor must exercise reasonable care to protect his guests from harm at the hands of an employee, another guest, or a third party. Taylor, 672 So.2d at 307; see Rodriguez v. New Orleans Public Serv., Inc., 400 So.2d 884, 887 (La.1981).

Reasonable care in the context of the threat of harm presented by the enumerated parties has been interpreted, in turn, to embrace certain sub-duties.

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Cite This Page — Counsel Stack

Bluebook (online)
906 So. 2d 636, 2005 WL 675524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fredericks-v-daiquiris-creams-lactapp-2005.