Opinion
2023 CA 0675
12-29-2023
Cortney E. BRUNO v. BLUE BAYOU WATER PARK, LLC, Dixie Landin, LLC and XYZ Insurance Company
Wyman E. Bankston, Livingston, Louisiana, Counsel for Plaintiff/Appellant Cortney E. Bruno D. Scott Rainwater, Chris W. Caswell, Baton Rouge, Louisiana, Counsel for Defendants/Appellees Blue Bayou Water Park, LLC and Dixie Landin, LLC
On Appeal from the Nineteenth Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana, Docket No. 685334, Honorable Kelly Balfour, Judge Presiding
Wyman E. Bankston, Livingston, Louisiana, Counsel for Plaintiff/Appellant Cortney E. Bruno
D. Scott Rainwater, Chris W. Caswell, Baton Rouge, Louisiana, Counsel for Defendants/Appellees Blue Bayou Water Park, LLC and Dixie Landin, LLC
BEFORE: McCLENDON, HESTER, AND MILLER, JJ.
McClendon, J.
2The trial court granted summary judgment and dismissed plaintiff’s claims with prejudice, Plaintiff appealed. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Cortney E. Bruno, plaintiff-appellant herein, filed a petition on July 15, 2019 seeking damages for injuries allegedly sustained while riding the "Ragin Cajun" roller coaster as a patron of Blue Bayou Water Park, LLC (Blue Bayou) and Dixie Landin, LLC theme park (Dixie), defendants-appellees herein. According to the petition, on July 14, 2018, Ms. Bruno was preparing to ride the roller coaster for the second time when she became concerned that the safety restraint securing her in the roller coaster seemed loose. Ms. Bruno alleged she expressed her concern to the roller coaster operator, who shook the restraint slightly and advised Ms. Bruno it was appropriately secured. However, when the roller coaster approached the first inversion, the restraint allegedly dislodged and struck Ms. Bruno in the jaw. Ms. Bruno alleged she was rendered unconscious and limp for the remainder of the ride, and she did not begin to regain consciousness until the ride ended. At that point, her family realized her condition and sought medical treatment on her behalf. Defendants filed an answer on August 20, 2019, generally denying the allegations of the petition and asserting affirmative defenses.
We note that the petition also named as a defendant the alleged general liability insurer of Blue Bayou and Dixie, "XYZ Insurance Company[.]" However, defendants admitted in their answer and in their responses to Ms. Bruno’s interrogatories that they maintained a self-insured retention policy for an amount sufficient to cover Ms. Bruno’s claims.
On January 20, 2023, defendants filed a motion for summary judgment seeking the dismissal of Ms. Bruno’s claims. Defendants argued Ms. Bruno could not produce factual support establishing either that defendants breached the duty of ordinary care owed by operators of an amusement park to a patron, or that defendants’ actions or inactions resulted in her injuries. Defendants relied on Ms. Bruno’s deposition testimony, wherein she stated that the safety restraint remained locked during the ride and that it was possible her head moved forward and struck the restraint. Defendants also maintained the recorded statements of two roller coaster operators established that Ms. 3Bruno did not alert defendants’ employees to her concerns about the restraint. Ms. Bruno opposed defendants’ motion for summary judgment.
After a hearing on March 13, 2023, the trial court granted defendants’ summary judgment motion and dismissed Ms. Bruno’s claims against defendants. The trial court signed a judgment in conformity with its oral rulings on March 22, 2023. This appeal followed.
LAW AND DISCUSSION
[1] After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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(A)(3). In determining whether summary judgment is appropriate, this court reviews the evidence de novo using the same criteria governing the trial court’s determination of whether summary judgment is appropriate. Jeandron v. Cenac, 2022-1158 (La. App. 1 Cir. 4/14/23), 365 So.3d 851, 857.
The mover bears the initial burden of proof on the motion for summary judgment. LSA-C.C.P. art. 966(D)(1). However, 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 judg- ment, 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. Once this is done, the burden shifts to 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. LSA-C.C.P. art. 966(D)(1). If the non-moving party fails to produce factual support in opposition sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, LSA-C.C.P. art. 966(D)(1) mandates the motion for summary judgment be granted. Bertrand v. Jefferson Arms Apartments, LLC, 2022-1195 (LaApp. 1 Cir. 4/14/23), 366 So.3d 595, 600.
[2–6] In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Further, simply showing the 4presence of disputed facts is insufficient if there is no legal issue presented by those contested facts. Trichell v. McClure, 2021-1240 (LaApp. 1 Cir. 4/8/22), 341 So.3d 856, 860. A "genuine" issue is a triable issue, which means that an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for trial on that issue. A fact is "material" when its existence or nonexistence may be essential to the cause of action under the applicable theory of recovery. Jeandron, 365 So.3d at 856. Because it is the applicable substantive law that determines materiality, whether a particular issue in dispute is material can be seen only in light of the substantive law applicable to the case. Id. at 857.
[7, 8] In this case, Ms. Bruno’s claim against defendants is based upon the legal theory of negligence. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Aucoin v. Larpenter, 2021-0064 (LaApp. 1 Cir. 9/20/21), 329 So.3d 363, 368, writ denied, 2021-01505 (La. 12/7/21), 328 So.3d 420. In order for liability to attach under the dutyrisk 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 the 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 the legal cause of the of the plaintiff’s injuries (the legal cause element); and (5) actual damages (the damages element). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. See Flynn v. Anytime Fitness, LLC, 2022-0742 (LaApp. 1 Cir. 12/29/22), 360 So.3d 860, 864, writ denied, 2023-00108 (La. 4/4/23), 358 So.3d 863.
[9–14] Relevant to the matter before us, the proprietor of an amusement park owes his patron the duty of ordinary care. Rivere v. Thunderbird, Inc., 353 So.2d 346, 347 (LaApp. 1 Cir. 1977), writ denied, 354 So.2d 1380 (La. 1978). The proprietor impliedly represents that he has used reasonable care in inspecting and maintaining the amusement devices, and that they are reasonably safe for the purposes intended. Id. 5 However, the proprietor is not an insurer of the safety of his patrons, and therefore, is not required to protect his patrons against every possible danger or hazard. Rivere, 353 So.2d at 348; May v. Mitchell Brothers, Inc., 1997-1270 (La. App. 1 Cir. 5/15/98), 712 So.2d 622, 623, writ denied, 1998-1953 (La. 10/30/98), 727 So.2d 1168. Rather, the proprietor is only liable for his patrons’ injuries when he is guilty of negligence. Further, the mere fact that an accident occurs, absent a res ipsa loquitur situation, does not give rise even to a presumption of negligence. The plaintiff must prove, by a preponderance of the evidence, that the defendant had a duty to protect plaintiff from injury and that the defendant breached that duty. May, 712 So.2d at 623-24.
[15, 16] Here, defendants specifically sought summary judgment on the basis that there was an absence of factual support for the breach of the duty element and the cause-in-fact element of Ms. Bruno’s negligence action. As the movers on the motion for summary judgment, defendants bore the burden of proof. See LSA-C.C.P. art. 966(D)(1). However, because defendants would not bear the burden of proof at trial, they were not required to negate all essential elements of Ms. Bruno’s claim. Rather, defendants were required to point out to the court that there was an absence of factual support for one or both of the elements they put at issue in their summary judgment motion. See LSA-C.C.P. art. 966(D)(1). Thus, the first issue we must consider is whether defendants successfully pointed out the absence of factual support for either the breach of the duty element or the cause-in-fact element of Ms. Bruno’s claim.
[17] In support of defendants’ motion for summary judgment, they attached Ms. Bruno’s petition and the transcript of Ms. Bruno’s deposition. During Ms. Bruno’s deposition, she testified that she rode the roller coaster twice on the day she was injured. Both times, Ms. Bruno pulled the safety restraint over her shoulders and attached it to the seatbelt connected to the floor of the roller coaster train. During the first ride, Ms. Bruno did not notice anything unusual about the restraint. When asked whether it moved 6"at all[,]" she responded, "no[.]" Afterwards, Ms. Bruno and her companions went to a different attraction before returning to the roller coaster.
Defendants also offered Dixie’s responses to the interrogatories and requests for production of documents propounded by Ms. Bruno, together with select exhibits to same. However, Dixie’s discovery responses, and the exhibits attached thereto, were not verified by Dixie as required by LSA-C.C.P. art, 1458. Consequently, the discovery responses and exhibits do not appear to be proper summary judgment evidence. Regardless, because we fine herein that Ms. Bruno's deposition transcript is sufficient to establish the absence of factual support for the cause-in-fact element of Ms. Bruno’s claim, we need not consider the discovery responses and exhibits.
Regarding the second time Ms. Bruno rode the roller coaster, when asked whether the safety restraint moved, Ms. Bruno stated, "It wiggled just a little bit. It just felt a little bit loose." Ms. Bruno was then asked, "meaning like we’re talking about a half an inch?" She replied, "I guess so." Ms. Bruno further testified that she asked the operator to check the restraint, and the operator "pressed it, told me it was fine, and she had crossed my cart to go back to the control room…. She just kind of reached out and tapped it." When asked whether the operator "pushed [the restraint] down" or "[did] a push-and-pull maneuver[,]" Ms. Bruno responded, "No, sir. She just tapped it." The transcript of Ms. Bruno’s deposition reflects the following exchange:
Ms. Bruno: When it went to go into the first curve, the harness hit me in the face, and that’s the last thing I remember.
Counsel for defendants: Okay. The harness hit you in the face meaning the harness came up?
Ms. Bruno: It popped a little bit, yes, sir. I don’t know if my head moved at the same time or what
Counsel for defendants: Did the harness move more than it did whenever you said it just "wiggled a little bit" at the beginning of the ride?
Ms. Bruno: I’m not sure.
Counsel for defendants: Okay. Was the seatbelt still intact?
Ms. Bruno: Yes, sir.
Counsel for defendants: Was it still connected to the harness?
Ms. Bruno: Yes, sir.
(Emphasis added). Subsequently, Ms. Bruno was asked whether the harness "lock[ed,]" Ms. Bruno explained, "It locked down, but it still felt loose." When asked whether "the harness [became] unlocked in a fashion that was different than it was locked in the beginning of the ride[,]" Ms. Bruno replied negatively. She testified she did not recall getting off of the ride. The next thing she remembered was "coming out of a test in the hospital." The deposition continued:
Counsel for defendants: Do you have any indication or any information that would lead you to believe that the harness became unlocked?
7Ms. Bruno: Outside of the hitting me in the face, no, sir.
Counsel for defendants: Okay. But when you say it hit you in the face, it’s also your testimony that you may have moved your head into the harness as well; correct?
Ms. Bruno: Possibly, I guess.
Counsel for defendants: And you don’t have any idea as to whether the harness moved in addition to the small wiggling space that you testified that it was moving prior to the ride; correct?
Ms. Bruno: Yes, sir.
Ms. Bruno later clarified that the restraint hit her "under [her] chin." She did not remember how far the restraint sat under her chin when she was in the cart. Ms. Bruno testified she did not recall whether the Blue Bayou operator gave instructions regarding how to secure the safety restraint. She had not heard of anyone locating broken pieces of the restraint and had not asked anyone if they’d taken pictures of the restraint after the ride. As a result of the accident bn the roller coaster, Ms. Bruno alleged she suffered severe headaches, a concussion, a labral tear, neck stiffness, and numbness from the base of her skull down her arms and into her fingers. She stated the numbness was constant on her right side, and intermittent on her left side.
[18, 19] Having thoroughly reviewed Ms. Bruno’s deposition testimony in its entirety, we find that the contents thereof exposed , an absence of factual support for the cause-in-fact element of Ms. Bruno’s claim. As set forth above, the cause-in-fact element requires proof that defendants’ substandard conduct was a cause-in-fact of Ms. Bruno’s injuries. See Flynn, 360 So.3d at 864. Here, Ms. Bruno gave deposition testimony that she "[didn’t] know if [her] head moved at the same time or what" when the safety restraint struck her. This testimony illustrated that Ms. Bruno is unable to describe with any certainty the mechanism of the event that caused her injuries. Thus, Ms. Bruno cannot establish that defendants’ alleged substandard conduct resulted in her injuries, and defendants have successfully pointed out the absence of factual support for the cause-in- fact element of Ms. Bruno’s claim. Accordingly, the burden shifted to Ms. Bruno to establish the existence of a genuine issue of material fact or that defendants are not entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(D)(1).
8In opposition to defendants’ summary judgment motion, Ms. Bruno argued that genuine issues of material fact precluded summary judgment regarding whether defendants breached the duty of ordinary care owed to her, whether defendants’ conduct was a cause-in-fact of her injuries, and whether defendants’ conduct was a legal cause of her injuries. In support of her opposition, Ms. Bruno submitted her petition for damages, her responses to interrogatories and requests for production of documents propounded by defendants, and excerpts of the transcript of her deposition testimony. However, none of the documents Ms. Bruno offered to controvert defendants’ motion for summary judgment contained evidence sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial. Her discovery responses merely referred to the description of the accident set forth in her petition, and she did not identify anyone, in either her discovery responses or her deposition, who she believed witnessed the accident and could provide further information regarding what happened.
[20–25] Though the question of causation is usually an issue for the factfinder’s determination, it is possible to determine this issue on summary judgment if reasonable minds could not differ. Elee v. White, 2021-0229 (LaApp. 1 Cir. 10/21/21), 332 So.3d 97, 101, writ denied, 2021-01732 (La. 1/19/22), 331 So.3d 329. In this matter, at the March 13, 2023 hearing of the summary judgment motion, the trial court noted, "I’ve got no evidence or no facts telling me that it was fault of the restraint" and "there’s no evidence one way to tell me what happened." Having conducted a thorough de novo review of the record before us, we agree with the trial court’s assessment. Ms. Bruno’s deposition testimony was the only evidence offered regarding the mechanism of the accident, and said testimony plainly confessed her lack of knowledge of the mechanism of the accident. Unsupported speculation and mere argument of a possibility do not warrant a finding of a genuine issue of material fact. Kinsley v. Baton Rouge Gen. Med. Ctr., 2022-1255 (La.App. 1 Cir. 6/2/23), 369 So.3d 881, 886. Accordingly, Ms. Bruno failed to establish that she would be able to satisfy her evidentiary burden of proof 9at trial. See LSA-C.C.P. art. 966(D)(1). The trial court properly granted summary judgment dismissing Ms. Bruno’s claims.
We further note that Ms. Bruno’s argument essentially invokes the doctrine of res ipsa loquitur—because she was injured on the roller coaster, there must have been a defect with the roller coaster. See Maddox v. Howard Hughes Corporation, 2019-0135 (La.App. 4 Cir. 4/17/19), 268 So.3d 333, 340. Res ipsa loquitur is "a rule of circumstantial evidence whereby negligence is inferred on the part of the defendant because the facts indicate that the defendant’s negligence is the most probable cause of the injury." Id. Res ipsa loquitur is a qualification to the general rule against presuming negligence based on the happening of an accident and, thus, must be "sparingly applied." To invoke the doctrine, a plaintiff must satisfy all of the following three requirements: the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; the defendant had exclusive control over the thing causing the injury; and the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on defendant’s part. Maddox, 268 So.3d at 340. Here, it is plain that the third requirement cannot be satisfied. Ms. Bruno’s own testimony theorizing that perhaps her head moved forward and struck the safety restraint establishes that the circumstances are not such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on defendant’s part. Maddox, 268 So.3d at 340. Thus, the doctrine of res ipsa loquitor would not succeed.
CONCLUSION
For the foregoing reasons, the March 22, 2023 judgment of the trial court granting summary judgment in favor of the defendants, Blue Bayou Water Park, LLC and Dixie Landin, LLC, and dismissing Ms. Bruno’s claims against the defendants with prejudice, is affirmed. Costs of this appeal are assessed against Ms. Bruno.
AFFIRMED.