Binkley v. Landry

• Decision Date: 28 September 2001
• Docket Number: No. 2000 CA 1710.,2000 CA 1710.
• Citation: 811 So.2d 18
• Parties: Gay Shirlyn BINKLEY, Both Individually and on Behalf Of Her Minor Child, Tiffany Binkley, And Genie Massey v. John E. LANDRY, Robin Toler, State Farm Mutual Automobile Insurance Company, Mystic Krewe for the Preservation of Lagniappe in Louisiana, Inc., Essex Insurance Company, And the City of Baton Rouge
• Court: Court of Appeal of Louisiana — District of US

811 So.2d 18

Gay Shirlyn BINKLEY, Both Individually and on Behalf Of Her Minor Child, Tiffany Binkley, And Genie Massey v. John E. LANDRY, Robin Toler, State Farm Mutual Automobile Insurance Company, Mystic Krewe for the Preservation of Lagniappe in Louisiana, Inc., Essex Insurance Company, And the City of Baton Rouge

No. 2000 CA 1710.

Court of Appeal of Louisiana, First Circuit.

September 28, 2001.

Writ Denied March 8, 2002.

COPYRIGHT MATERIAL OMITTED

Martin S. Bohman, Marjorie A. McKeithen, Lisa M. Prater, Baton Rouge, for Plaintiffs-Appellants Gay Shirlyn Binkley, Individually and on Behalf of Tiffany Binkley, and Genie Massey.

Maxime G. LaBranche, Jr., Baton Rouge, for Defendant-Appellee Mystic Krewe for the Preservation of Lagniappe in Louisiana, Inc.

Al M. Thompson, Jr., New Orleans, for Defendant-Appellee Essex Insurance Company.

James H. Morgan, III, Baton Rouge, for Defendant-Appellee McInnis, Tyner & Daniel, Inc.

Michael E. Ponder, Mary E. Roper, Randy B. Ligh, Baton Rouge, for Defendant City of Baton Rouge.

Before: CARTER, C.J., PARRO, and CLAIBORNE,¹ JJ.

CLAIBORNE, Judge Pro Tem.

Plaintiffs seek review of three summary judgments and one judgment maintaining an exception of no right of action rendered by the trial court dismissing plaintiffs' claims.² We affirm.

FACTS AND PROCEDURAL HISTORY

This litigation arose out of an accident in Baton Rouge, Louisiana, on February 21, 1998, at the Spanish Town Mardi Gras Parade which was sponsored by a nonprofit organization, The Mystic Krewe for the Preservation of Lagniappe in Louisiana, Inc. (Mystic Krewe). According to plaintiffs' original petition, this was the first Mardi Gras parade ever attended by Tiffany Binkley. Tiffany's grandmother, Genie Massey, took seven-year-old Tiffany to the parade along with some other family members. They found a spot along the parade route near the intersection of North Third Street and North Boulevard. During the parade, a pickup truck (owned by Robin Toler and insured by State Farm Mutual Automobile Insurance Company) suddenly left the parade route after its driver, John E. Landry, momentarily lost consciousness. Mr. Landry drove into the crowd of spectators where plaintiffs were viewing the parade. Tiffany was seriously injured when she was run over by the pickup truck.

Plaintiffs filed suit³ for personal injury damages against Mr. Landry, Ms. Toler, State Farm, Mystic Krewe and its insurer, Essex Insurance Company (Essex), and the City of Baton Rouge (City). Plaintiffs later amended their petition to include an action against Mystic Krewe's insurance agent, McInnis, Tyner & Daniel, Inc. (McInnis Agency), for negligently failing to procure insurance covering injuries to spectators at the parade as requested by Mystic Krewe. The amended petition also included allegations of gross negligence on the part of Mr. Landry and Mystic Krewe. Plaintiffs alleged that Tiffany's injuries were caused by the gross negligence of Mystic Krewe in failing to supervise drivers and in allowing Mr. Landry to drive the pickup truck in the parade even though he had been drinking alcoholic beverages and suffered from an alleged medical condition which caused him to "black out." Essex was named as a defendant because it issued a "Spectator Liability" policy of insurance to Mystic Krewe. The City was named as a defendant for allegedly negligently issuing the parade permit to Mystic Krewe, negligently approving a dangerous parade route, and negligently failing to protect the public viewing the parade.

Essex and Mystic Krewe filed motions for summary judgment based upon statutory immunity provided to Mardi Gras krewes in Louisiana Revised Statute 9:2796.⁴ The City filed a motion for summary judgment based upon statutory immunity provided to public entities in Louisiana Revised Statute 9:2798.1. The McInnis Agency filed an exception of no right of action based upon the lack of a contractual relationship between it and plaintiffs. After separate hearings, the trial court granted all three motions for summary judgment and maintained the exception of no right of action, thereby dismissing all of plaintiffs' claims.⁵ Plaintiffs appeal⁶

DISCUSSION

Summary Judgment—Standard of Review

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Rambo v. Walker, 96-2538, p. 4 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Rambo, 96-2538 at 5, 704 So.2d at 32.

The burden of proof is on the movant. If the moving party will not bear the burden of proof at trial on the matter before the court on the motion and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, then the non-moving party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La.Code Civ. P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. arts. 966 and 967; Williams v. Shoney's, Inc., 99-0607, pp. 3-4 (La.App. 1st Cir.3/31/00), 764 So.2d 1021, 1023.

Appellate courts review motions for summary judgment de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Williams, 99-0607 at 4, 764 So.2d at 1023; Rambo, 96-2538 at 5, 704 So.2d at 32-33.

Mardi Gras Krewe Immunity Statute—La. R.S. 9:2796

Both Mystic Krewe and Essex base their summary judgment motions on the statutory immunity provided to Mardi Gras krewes in La. R.S. 9:2796(A).⁷ The version of this statute in effect at the time of the accident on February 21, 1998, provided, in pertinent part:

A. Notwithstanding any other law to the contrary, no person shall have a cause of action against any krewe or organization which presents Mardi Gras parades ... or against any nonprofit organization chartered under the laws of this state, or any member thereof, which sponsors fairs or festivals that present parades, for any loss or damage caused by any member thereof or related to the parades presented by such krewe or organization, unless said loss or damage was caused by the deliberate and wanton act or gross negligence of the krewe or organization. The provisions of this Section shall not be intended to limit the liability of a compensated employee of such krewe or organization for his individual acts of negligence. (Emphasis added.)

The expansive language in La. R.S. 9:2796(A) was intended to cover a broad spectrum of risks and losses associated with parading. See Gardner v. Zulu Social Aid and Pleasure Club, Inc., 98-1040, p. 5 (La.App. 4th Cir.2/10/99), 729 So.2d 675, 678, writ denied, 99-0697 (La.5/7/99), 740 So.2d 1285. The only exception to the grant of immunity contained in the statute at the time of the accident was if the loss was caused by the deliberate and wanton act or gross negligence of the krewe or organization.

Act No. 1264 of 1999, effective August 15, 1999 (after the date of the instant accident), created an additional exception to the grant of immunity for loss or damage caused when members of the krewe or organization were operating a motor vehicle within the parade. The Act also made clear that the deliberate and wanton acts or gross negligence of any member (not just the krewe or organization) were actionable. Act No. 1264 of the 1999 Regular Session reads, in pertinent part, as follows:

Section 1. R.S. 9:2796(A) is hereby amended and reenacted to read as follows:

A. . . [N]o person shall have a cause of action against any krewe or organization, or any member thereof which presents Mardi Gras parades ...or against any nonprofit organization chartered under the laws of this state, or any member thereof, which sponsors fairs or festivals that present parades, for any loss or damage caused by any member thereof, during or in conjunction with or related to the parades presented by such krewe or organization, unless said loss or damages was caused by the deliberate and wanton act or gross negligence of the krewe or organization, or any member thereof as the case may be, or unless said member was operating a motor vehicle within the parade or festival. The provisions of this Section shall not be intended to limit the liability of a compensated employee of such krewe or organization for his individual acts of negligence. (Additions or changes indicated by underline.)

Unfortunately for plaintiffs, Act No. 1264 did not provide for the retroactive application of this pertinent change in the statute. Likewise, Act No. 1264 did not provide a specific effective date for the Act. As a result, pursuant to La. Const. art. 3, § 19, the general effective date of all laws enacted at the 1999 Regular Legislative Session was August 15, 1999.

The legislature, in enacting the change in the language of La. R.S. 9:2796(A), did not express any intention as to whether the new provision was to be limited to prospective application only or whether the courts were to afford retroactive application to that provision. We must therefore determine whether La. R.S. 9:2796(A) is substantive, procedural, or interpretive. See Genusa v. Dominique, 97-0047, p. 10 (La.App. 1st Cir.2/20/98), 708 So.2d 784, 790. La....