Perkins v. Air U Shreveport, LLC

249 So. 3d 187
CourtLouisiana Court of Appeal
DecidedMay 23, 2018
DocketNo. 52,093–CA
StatusPublished
Cited by4 cases

This text of 249 So. 3d 187 (Perkins v. Air U Shreveport, LLC) 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
Perkins v. Air U Shreveport, LLC, 249 So. 3d 187 (La. Ct. App. 2018).

Opinion

COX, J.

Appellants, Kurt and Tabitha Perkins (referred to individually as "Kurt" and "Tabitha," respectively, and collectively as the "Perkinses"), appeal a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of Appellees, Air U Shreveport, LLC ("Air U"), ABC Insurance, and John Doe(s). Air U filed a motion for summary judgment, which the trial court partially granted, dismissing part of the Perkins's claims.1 The Perkinses appeal the trial court's partial granting of the motion for summary judgment. For the following reasons, we affirm.

FACTS

Air U is an indoor trampoline park located in Shreveport, Louisiana. Kurt and his wife, Tabitha, were patrons at Air U on July 19, 2014, when Kurt was injured. Kurt was 24 years old at the time of the injury and had no known or apparent medical issues. He had recently completed a stint in the U.S. Marine Corps, and was working part-time while attending a technical college.

On July 2, 2015, the Perkinses filed suit against Air U, ABC Insurance Company, and John Doe(s).2

In his deposition, Kurt stated, "I don't know why it happened. I thought I could do a jump on a trampoline like the other hundred kids jumping there." He stated he could not remember what kind of jump he was doing before the injury and recalled *190that he landed on both feet when his left knee gave out. When his knee gave out, he fell to the trampoline, holding his leg and hollering. He stated he lay on the trampoline until he left on a stretcher with the emergency medical technicians.

Kurt stated he had never had any other injury to his left leg or medical treatment of his left leg. He stated that by looking at the trampoline, it was set up and ready to use. He said he did not notice any holes or loose or broken springs. Kurt also stated he did not notice any difference between the trampoline he was injured on and the other trampolines.

Tabitha also stated in her deposition that she did not notice any defects or anything visually wrong with the trampolines. She recalled that before the accident, Kurt was bouncing off the wall, but at the time of the accident, was jumping straight up and down. She stated an employee of Air U told her he could not call an ambulance because only a manager could call an ambulance.

James Murphy, an owner of Air U, stated in his deposition that Mr. McNabb and Mr. Hutchinson are his business partners in Air U. He described Mr. McNabb as having extensive trampoline experience, which includes a background in gymnastics and serving on several national boards in the trampoline sport industry. Mr. Murphy stated Air U had no liability insurance in effect in July 2014 and is not a member of the International Association of Trampoline Parks.

Mr. Murphy said that at the time Kurt was jumping, the rules video was playing on a continuous loop in a public area and the written rules were posted on public walls. He described their inspection process as a daily tension test and twice-weekly structural check. Before a patron is able to jump at Air U, he or she is required to read and sign a waiver. Kurt signed this waiver before his injury.

According to his affidavit and CV, Dr. Gerald S. George has a background in biomechanics, trampolines, and institutional trampoline courts. He earned a Ph.D. in biomechanics with a minor in psychology. Dr. George inspected Air U on behalf of the plaintiffs and stated the following in his affidavit:

Allowing use of a trampoline device to propel oneself to other trampolines is an unreasonably dangerous practice. The unreasonably dangerous practice predisposes participants to a higher than ordinary risk of serious injury. From a biomechanical standpoint, the injuries sustained by Mr. Perkins are consistent with what would be expected from the activity.

On April 17, 2017, Air U filed a motion for summary judgment. At the hearing on the motion, the plaintiffs' attorney stated the defect was in the design of the trampoline park itself because it was not compliant with ASTM3 standards and it was inherently dangerous to have trampolines mounted at an angle on the walls. Air U's attorney argued the alleged ASTM violations and wall trampolines were irrelevant because Kurt was jumping straight up and down at the time of the incident. The trial judge granted the motion in favor of Air U stating, "there were no genuine issues of material fact regarding defects in Air U [.]" The Perkinses filed this appeal, arguing the trial judge erred in granting Air U's motion.

DISCUSSION

I. Unreasonable Risk of Harm

In their first assignment of error, the Perkinses argue the trial court erred by *191failing to find a genuine issue of material fact as to whether the trampolines, as designed, installed, and inspected by Air U, were the defect which created an unreasonable risk of harm. They assert that they have sufficient evidence to meet the elements for a claim set forth in La C.C. arts. 2317 and 2317.1 and that a genuine issue of material fact exists.

The law pertaining to motions for summary judgment is well settled. At the time the instant motion was filed, La. C.C.P. art. 966(A)(3) and (D)(1) provided, in pertinent part:

(A)(3) After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.
* * *
(D)(1) 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.

This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case. Gilley v. Gilley Enterprises, Inc ., 51,328 (La. App. 2 Cir. 5/2/17), 222 So.3d 885. At that point, the party who bears the burden of persuasion at trial must come forth with evidence which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

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249 So. 3d 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-air-u-shreveport-llc-lactapp-2018.