97-1270 La.App. 1 Cir. 5/15/98, May v. Mitchell Bros., Inc.

• Decision Date: 15 May 1998
• Citation: 712 So.2d 622
• Parties: 97-1270 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 622

712 So.2d 622

97-1270 La.App. 1 Cir. 5/15/98

Eleanor L. MAY v. MITCHELL BROTHERS, INC. and Homestead Insurance Company.

No. 97 CA 1270.

Court of Appeal of Louisiana, First Circuit.

May 15, 1998.

Rodney N. Erdey, Livingston, for Plaintiff-Appellee.

Frederick H.N. Dwyer, Mandeville, for Defendants-Appellants.

Before LOTTINGER, C.J., and SHORTESS and FOGG, JJ.

[97-1270 La.App. 1 Cir. 2] SHORTESS, Judge.

Seventy-four-year-old Eleanor L. May (plaintiff) was injured by a ricocheting softball while watching a milk-bottle-toss game at the Livingston Parish Fair. She sued the fair operator, Mitchell Brothers, Inc. ¹ (Mitchell), and its insurer, Homestead Insurance Company (collectively, defendants). After a bench trial, the court found plaintiff's damages totaled $50,000.00. It found plaintiff and Mitchell were both negligent and apportioned the fault 20% to plaintiff and 80% to Mitchell. Defendants appeal, alleging that the trial court erred in finding Mitchell negligent and, alternatively, that the fault assessed Mitchell and the quantum awarded were both excessive. ²

The trial court, in brief reasons for judgment, stated:

Having carefully reviewed the facts and the evidence, this Court finds that the defendant Mitchell Brothers had a duty to operate its game booths in such a manner that they would not pose a danger of injury to [passersby]. This Court further finds that the defendant breached this duty by failing to provide protection from catapulted objects, whether from the erection of a protective device, or from the placement of the booth such that catapulted objects would not pose a danger to [passersby].

Defendants contend, however, that this incident was improbable, unusual, and unforeseen and that plaintiff failed to show how Mitchell acted unreasonably, what precautions could or should have been taken that would have prevented such an incident, or what actions by Mitchell were negligent.

Plaintiff was strolling the midway of the Livingston Parish Fair and had stopped at the milk-bottle-toss game because she wanted to talk to a friend who was working in the booth. The game involves throwing a softball at three metal milk bottles sitting on a stand eighteen to twenty inches high. The bottles are six to eight feet away from the thrower. The object of the game is to knock over the bottles and win a prize.

Deltus Mitchell, owner of Mitchell, testified the game is enclosed in a booth that has three walls and a top. He stated the milk-bottle-toss game had been at the Livingston Parish Fair for twelve to twenty years. To his knowledge, no one had ever been injured by a ricocheting ball from this game. Plaintiff presented no evidence [97-1270 La.App. 1 Cir. 3] showing a protective device would have been feasible or that some other placement of the booth would have prevented her injury.

Louisiana law is well settled that the owner or operator of an amusement facility is not the insurer of the safety of its patrons but is liable for injuries received by them only if guilty of negligence. ³ It is not required to protect its patrons against every possible danger or hazard. ⁴ The mere fact that an accident occurs, absent a res ipsa loquitur situation, does not give rise even to a presumption of negligence. ⁵ The plaintiff has a duty to 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. ⁶

Plaintiff's only evidence that balls were prone to ricochet from a milk-bottle-toss game was the testimony of her friend, Estelle Carpenter. Carpenter testified she was once chair of the games committee for an elementary-school field day. She stated the milk-bottle-toss game at the school carnival had a problem with balls ricocheting and hitting the students, and it was discontinued because of that danger. She also testified, however, that the booth was dissimilar to the one involved in this incident. The only thing she remembered about the booth involved herein was that there were milk bottles on a wooden platform.

Carpenter testified she was with plaintiff when the accident occurred. They stood in front of the booth about five minutes before plaintiff was struck. She stated she saw more than one ball ricochet out of the booth while they stood there, but she did not think it was dangerous at the time. Plaintiff testified, however, that she did not see any balls come out of the booth before the accident. The trial court found plaintiff had foreknowledge that balls were occasionally ejected from the booth.

Before the 1988 supreme court case of Murray v. Ramada Inns, ⁷ this case would have been decided under the legal fiction of assumption of the risk. Under that doctrine, plaintiffs were considered to have implicitly consented to injuries that [97-1270 La.App. 1 Cir. 4] occurred at amusement parks or while spectators at sporting events unless they could show the defendant was careless or negligent in failing to take reasonable precautions. ⁸ In Murray, the supreme court banished the term "assumption of the risk" but noted its decision did not mean the result reached in sports-spectator and amusement-park cases was incorrect. The court noted that in those cases, the courts applied assumption-of-the-risk terminology while simultaneously recognizing the defendant was not negligent because his conduct vis-a-vis the plaintiff was not unreasonable. ⁹ The court stated these types of cases turn on their particular facts and may be analyzed in terms of duty/risk.

The court noted the same analysis applies in other cases where it may not be reasonable to protect the plaintiff from all of the risks associated with a particular activity. As an example, the court cited Bonanno v. Continental Casualty Company, ¹⁰ in which an 84-year-old plaintiff was injured when she was jostled or fell when someone dressed as the devil appeared, scaring the haunted-house patrons. The court stated the plaintiff "had to realize that the very nature of the attraction was to cause patrons to react in bizarre, frightened and unpredictable ways." ¹¹

Duty is an obligation to conform to a standard of conduct associated with a reasonable person in like circumstances. Whether a duty is owed is a question of law. ¹² In determining whether Mitchell owed a duty to plaintiff in this case, the court had to determine whether a reasonably prudent carnival operator would have or could have erected some sort of protective device or placed the booth in such a manner that catapulted objects would not pose a danger to spectators. The court found Mitchell had such a duty, but defendants contend this finding was legal error.

Failure to take every precaution against all foreseeable injury to another does not necessarily constitute negligence. Negligence requires the risk be both foreseeable and unreasonable. Failure to take a particular precaution to guard against injury to another in connection with a risk constitutes negligence only when it [97-1270 La.App. 1 Cir. 5] appears such a precaution would have been undertaken under the circumstances by a reasonably prudent individual. Ordinary care does not require that one anticipate unusual and improbable, although entirely possible, happenings. ¹³ The operator is required only to exercise that degree of care commensurate with foreseeable dangers inherent under the circumstances. ¹⁴

In Pitre v. Employers Liability Assurance Company, a nine-year-old boy was killed when he was struck on the temple by a teenager who was winding up to pitch at a concession booth similar to the one involved herein. His parents sued the fair operator, alleging precautions should have been taken to separate the participants and the spectators. The court found the operator had no duty to do so, stating:

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