Watts v. Party Cent. Family Fun Ctr.
| Docket Number | 54,171-CA |
| Decision Date | 12 January 2022 |
| Parties | CARDENA WATTS, INDIVIDUALLY AND AS TUTOR OF THE MINOR CHILD, MARKAIA FOSTER Plaintiff-Appellant v. PARTY CENTRAL FAMILY FUN CENTER, T.H.E. INSURANCE COMPANY AND ABC MANUFACTURER Defendant-Appellees |
| Court | Court of Appeal of Louisiana — District of US |
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 162666 Honorable E. Charles Jacobs, Judge
ERNEST H. GILLIAM, III Counsel for Appellant
THOMAS, SOILEAU, JACKSON & COLE, LLP By: Steven E Soileau Counsel for Appellees
Before MOORE, COX, and ROBINSON, JJ.
Cardenna Watts appeals a summary judgment that dismissed her individual and her minor daughter's personal injury claims against Party Central Family Fun Center and its insurer, T.H.E. Insurance Co. For the reasons expressed, we affirm.
On the evening of August 17, 2019, Ms. Watts took her eight-year-old daughter, Markia Foster, [1] to Party Central, an amusement center in Bossier City, for a birthday party. Shortly before closing time, Markia got on a "Rookie Kart" at the go-kart track. She successfully navigated the track several times before ramming headfirst into a side rail. Her kart stopped jutting perpendicularly into the track. Almost immediately, two other go-karts struck Markia's kart; a few seconds later, a third struck it. An attendant promptly ran onto the track, pulled Markia out of the kart, and carried her to safety. The entire incident was captured on a black-and-white surveillance video.
Ms. Watts declined first aid at the scene and brought Markia home thinking she had a superficial bruise to her jaw. The next day, however, the child complained of abdominal pain so Ms. Watts took her to CHRISTUS Highland Hospital. There, doctors found a broken jaw, a concussion, and a Grade 3 tear of her pancreas. According to the petition, Markia spent 12 days in the hospital and ran up $80, 000 in medical expenses.
In July 2020, Ms. Watts filed this suit, individually and on behalf of Markia, against Party Central, its insurer, and the unknown manufacturer of the go-kart. She alleged basic tort liability, La. C.C. arts. 2315 and 2316; liability to an onlooker, C.C. art. 2315.6; strict liability, C.C. arts. 2317, 2317.1, and 2322; products liability, La. R.S. 9:2800.54 through 9:2800.60; penalties and attorney fees for bad faith refusal to settle, R.S. 22:1892 and 22:1973; and a request for jury trial. In subsequent filings, Ms. Watts withdrew her claims for penalties and attorney fees, and established her status as Markia's natural tutrix.
In November 2020, Party Central and its insurer moved for summary judgment.[2] They conceded that the accident occurred but argued that it was purely the result of the child driving headfirst into a barrier; Ms. Watts had no evidence of negligence or of any defective condition. In support, they offered the affidavit of Party Central's president, Bernadette Chandler, with 26 attached photos and stills from the surveillance video. These included a posting of Rookie Kart rules and a warning, They also filed portions of Ms. Watts's deposition, in which she admitted that, to her knowledge, the go-karts were not operating in violation of any safety rules or in any improper or wrong way.
Ms. Watts opposed the MSJ, arguing that the track had an "emergency cut-off switch," thus creating the legal issue whether Party Central had a duty to "shut off the ride" if a rider is placed in danger, and the factual issues whether it had enough time to do so and enough employees to keep adequate watch. In support, she filed a DVD of the surveillance video of the accident, a copy of Party Central's answers to interrogatories, Markia's certified hospital records, and Ms. Watts's own affidavit.
Party Central responded that Ms. Watts's opposition was mostly speculation. It also showed that what she called a "cut-off switch" was, according to discovery responses, a "kart commander," which would place all karts in idle but could not stop them. It argued that Ms. Watts had produced no evidence that had it done anything differently, Markia would not have been injured.
At the hearing, in February 2021, counsel for Ms. Watts argued that Party Central "could have stopped the go-karts once [Markia] hit the wall." The court started to ask, and then stated, Counsel still maintained, "All they had to do was press the button" and "the impact could have been avoided completely." He concluded, "If the cars had been slown [sic] down, there's a possibility that she would not've been injured."
The district court ruled that summary judgment was proper because there was no evidence that the track was improperly staffed or the staff was improperly trained, that Party Central was negligent, or that Markia's injuries arose from the third impact rather than the first. The court later rendered judgment dismissing Ms. Watts's claims against Party Central and its insurer.
Ms. Watts appealed devolutively.
By her sole assignment of error, Ms. Watts urges that the court erred in finding no genuine issue of material fact as to whether Party Central's failure to use the emergency kill switch on its ride was reasonable and whether such failure could not support Ms. Watts's negligence claim as presented. She argues that summary judgment is "ordinarily not an appropriate procedural device when there are issues that require the determination of the reasonableness of acts and conduct of parties under all the facts and circumstances." Gauthier v. Foster Homes LLC, 53, 143 (La.App. 2 Cir. 11/20/19), 284 So.3d 1206; Mixon v. Davis, 31, 725 (La.App. 2 Cir. 3/31/99) 732 So.2d 628; Banks v. State Farm Ins. Co., 30, 868 (La.App. 2 Cir. 8/19/98), 717 So.2d 687; Stroder v. Horowitz, 34, 048 (La.App. 2 Cir. 12/20/00), 775 So.2d 1175. She particularly stresses one case for the proposition, "Although it generally is inappropriate to resolve negligence cases on summary judgment, an exception has been recognized when there is a categorical rule of no liability." Ducote v. Boleware, 15-0764 (La.App. 4 Cir. 2/17/16), 216 So.3d 934, writ denied, 16-0636 (La. 5/20/16), 191 So.3d 1071. She contends that unlike in Boleware, there is no such rule to insulate Party Central from liability for failing to shut off its go-kart track.
Factually, she urges that Markia's go-kart struck the wall "almost perfectly flush"; the kart behind her slowed but struck her on the driver's side almost immediately; and then, "almost ten (10) seconds later," two more karts traveling at a high rate of speed struck her kart. She argues that if an employee had been monitoring the track and pressed the emergency "kill switch," the secondary impacts, which appear most significant, "could have been avoided completely." She asserts that she has proved every essential element of a tort: Party Central owed a legal duty to "stop the cars when a child inevitably loses control of their karts in order to avoid injury to the child from collisions"; Party Central breached that duty, because "10 seconds is more than enough time to press a button"; the breach was a substantial factor in the plaintiffs' injuries; the injuries fell within the scope of the duty; and there is adequate proof of damages. Finally, she reiterates that, unlike in Boleware, where the owner of a cat that bit the plaintiff was insulated from liability under La. C.C. art. 2321, there is no rule limiting the liability of an amusement park operating go-karts. She asks that the summary judgment be reversed and the case remanded for trial.
Party Central responds, first stressing all the warnings posted around the go-kart track and Ms. Watts's own admission that she knew of no rules or regulations that were violated or anything improper about the ride. It disputes two of Ms. Watts's factual assertions: (1) the discovery responses clearly showed that the track did not have a "kill switch," that would stop all cars instantly, but had a "kart commander," that would place all karts in neutral and allow them to roll to a halt; (2) the video clearly shows that the third impact occurred not 10, but 7 seconds after Markia struck the wall, and that it was not a high-speed collision but a "glancing blow."
It argues that Ms. Watts presented no evidence that using the kart commander would have prevented the third impact. It characterizes her arguments as "mere speculation," and insufficient to defeat a properly supported summary judgment. Row v. Pierremont Plaza LLC, 35, 796 (La.App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied, 02-1262 (La. 8/30/02), 823 So.2d 952; Foster v. Patwardhan, 48, 575 (La.App. 2 Cir. 1/22/14), 132 So.3d 495, writ denied, 14-0614 (La. 4/25/14), 138 So.3d 1233.
Finally Party Central concedes that no go-kart cases appear in Louisiana jurisprudence, but roller rink cases hold that the activity poses such obvious risks that the amusement park operator is not the insurer of patrons' safety. Hills v. Skate Country East Inc., 430 So.2d 1035 (La.App. 4 Cir.), writ denied, 438 So.2d 568 (1983); Lambert v. Wheels "R" Rolling Skate Center Inc., 552 So.2d 732 (La.App. 1 Cir. 1989), writ denied, 556 So.2d 1265 (1990); Hyland v. Durr, 212 So.2d 158 (La.App. 4 Cir.), writ ref'd, 252 La. 886, 214 So.2d 715 (1968). It also shows that another jurisdiction has approved summary judgments in favor of go-kart operators in circumstances similar to this case. Loewenthal v. Catskill Funland Inc., ...
To continue reading
Request your trial