Wiltz ex rel. Son v. Bros. Petroleum, L.L.C.
| Decision Date | 21 May 2014 |
| Docket Number | 13–CA–333,Nos. 13–CA–332,13–CA–334.,s. 13–CA–332 |
| Citation | 140 So.3d 758 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Gina WILTZ, Wife of, and Timothy Wiltz, Individually and on Behalf of their Minor Son, R.W. v. BROTHERS PETROLEUM, L.L.C., Meraux Food Store, Inc., Alex Chevron, Inc., Winn–Dixie Montgomery, Inc., Bogue Chitto Canoeing and Tubing Center, Inc., and Infinity Insurance Company. Tina Tommaseo v. Brothers Petroleum, L.L.C., Meraux Food Stores, Inc., Alex Chevron, Inc., Winn–Dixie Montgomery, Inc., Bogue Chitto Canoeing and Tubing Center, Inc. Glen Gabb and Cynthia Gabb, Individually and on Behalf of their Deceased Daughter, R.G. v. Brothers Petroleum, L.L.C., Meraux Food Store, Inc., Alex Chevron, Inc., Winn–Dixie Montgomery, Inc. and Bogue Chitto Canoeing and Tubing Center, Inc., Byron Lafontaine and Tina Tommaseo, Individually and on Behalf of their Deceased Son, B.L., Regal Insurance Company. |
OPINION TEXT STARTS HERE
Richard C. Trahant, Scott Labarre, Metairie, Michael C. Ginart, Jr., Kim C. Jones, Joyce D. Young, Chalmette, William W. Hall, William W. Hall, L.L.C., Metairie, Craig A. Gentry, New Orleans, for Plaintiff/Appellee.
Robert E. Kerrigan, Jr., Isaac H. Ryan, John Jerry Glas, New Orleans, for Defendant/Appellant.
Stephen N. Elliott, Howard B. Kaplan, Caroline D. Elliott, Metairie, for Defendant/Appellee–2nd Appellant.
Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
Plaintiffs, Gina Wiltz, wife of, and Timothy Wiltz, on behalf of their minor son, Ryan Wiltz, and defendants, Winn–Dixie Montgomery, Inc. and Meraux Food Store, Inc., appeal the judgment of the trial court. For the following reasons, we amend the judgment, affirm in part as amended, and reverse in part.
In this consolidated action, plaintiff parents, Gina and Tim Wiltz, Cynthia and Glen Gabb, and Tina Tommaseo,1 individually and on behalf of their minor teenagers, brought a negligence action against defendants, Winn–Dixie Montgomery, Inc. (“Winn–Dixie”), Meraux Food Store, Inc. (“Meraux”), Brothers Petroleum, LLC (“Brothers”), Alex Chevron, Inc. (“Alex Chevron”), Bogue Chitto Canoeing & Tubing Center, Inc. (“Bogue Chitto”), and their respective insurers. Plaintiffs sought damages for the wrongful deaths of their minor children, Rachel Gabb, Brian Lafontaine, and Charie Billiot and for injuries sustained by their minor son, Ryan Wiltz, in a single-vehicle crash, where the minor driver, Brian Lafontaine, was intoxicated. Plaintiffs contended that the defendant retailers illegally sold alcohol to minors that contributed to Brian Lafontaine's intoxication and subsequent crash following a day of tubing on the Bogue Chitto River. Plaintiffs further urged that Winn–Dixie negligently permitted the minors to possess and/or consume alcohol on its premises, and maintained that Bogue Chitto failed to supervise the minors' activities on the river and afterwards. Alex Chevron and Bogue Chitto settled, as did Byron Lafontaine, individually and on behalf of Brian Lafontaine, and Tommy Tommaseo.2 Brothers was dismissed from the suit on summary judgment.
Plaintiffs proceeded to a jury trial against Winn–Dixie and Meraux. The jury rendered a unanimous verdict in favor of plaintiffs, assigning 30% fault to the minor driver, Brian Lafontaine; 22.5% fault to Meraux; 22.5% fault to Alex Chevron; 15% fault to Bogue Chitto; and 10% fault to Winn–Dixie. Ultimately, the jury concluded that the alcohol consumed on the tubing trip came from only two sources: Meraux and Alex Chevron. While the jury did not find that Winn–Dixie sold alcohol to any minors, the jury did hold Winn–Dixie liable for negligently permitting the minors to possess and/or consume alcohol on its premises.
Post-trial, Gina and Timothy Wiltz, on behalf of Ryan Wiltz, (the “Wiltzes”) and Meraux moved for judgments notwithstanding the verdict, which the trial court denied. The trial court additionally denied Winn–Dixie's motion for new trial. Winn–Dixie and Meraux appeal the trial court's judgment of liability. On cross-appeal, the Wiltzes seek increased general damages on behalf of Ryan Wiltz.
On August 21, 2005, at approximately 8:00 a.m., a group of approximately 35–40 teenagers, in ten to 20 vehicles, met in the Winn–Dixie parking lot located in the Park Plaza Shopping Center on Paris Avenue in Chalmette, Louisiana, to pool their alcohol prior to a day of tubing on the Bogue Chitto River. Most of the teenagers resided and attended high school in New Orleans East and the tubing trip was planned in celebration of the start of their senior year.
One teenager testified that he was blown away by the amount of alcohol in the parking lot and another testified that there was too much beer available for the number of teenagers to consume on the trip. Testimony varied as to whether the teenagers consumed alcohol in the parking lot. Once the alcohol was pooled together, there was no way to tell which alcohol belonged to whom. The teenagers remained in the Winn–Dixie parking lot for approximately one hour.
Jamie Rutland, a Winn–Dixie employee and fellow student of the teenagers in the parking lot (and who was invited on the tubing trip), testified by deposition that when she arrived for work on the morning of August 21, 2005, she observed 45–50 people in the parking lot with cases of beer in the bed of a white truck along with ice chests. She testified that it appeared that Candace Pizzalato, a minor, exited Winn–Dixie with a case of beer. Jamie explained that upon entering the store, she immediately alerted her supervisor, Melanie, that an underage girl just exited the store with beer. She was unaware what action the supervisor took after apprising her of the situation outside, but expected that the supervisor would call the police.
After approximately one hour, a caravan of approximately ten vehicles traveled to the Bogue Chitto Canoeing & Tubing Center. Brian Lafontaine, 17, drove Chrissie Billiot, 15, Charie Billiot, 16, and Rachel Gabb, 16. Chris Acosta, 17, drove Jared Heninger, 17, Ryan Wiltz, 16, and two girls. Upon arrival at the tubing center, the teenagers admitted lying about their ages to check in at the tubing center.3 While waiting for the bus to take them to the river, the teenagers funneled and “shot-gunned” beer for approximately 20 minutes. Bogue Chitto employees partook in the drinking with the teenagers. The teenagers floated on the river for approximately five to six hours, drinking from whichever ice chest was closest. Testimony was given that Brian Lafontaine did not have his own ice chest, and was thrown cans of beer throughout the day from whichever ice chest he was nearest. At the conclusion of the trip, Bogue Chitto employees advised the teenagers of routes to take to avoid sobriety check points.
Chrissie Billiot testified at trial that she and Rachel Gabb finished tubing ahead of Brian Lafontaine and went to Lafontaine's vehicle to rest while waiting for the group to finish. Ryan Wiltz and Charie Billiot next came to the car together to wait for Lafontaine to leave.4 Brian Lafontaine was noticeably intoxicated and Chris Acosta attempted to prevent Lafontaine from driving. Before anyone could stop him, Lafontaine jumped into his vehicle and took off quickly with Chrissie, Rachel, Ryan, and Charie already in the car. Chrissie sat in the front, passenger seat with the others seated in the backseat. Brian Lafontaine sped away from his friends, driving intoxicated and traveling approximately ten miles per hour over the speed limit (66/55). At approximately 4:45 p.m., Brian Lafontaine crashed his vehicle only a few miles away from the Bogue Chitto Canoeing & Tubing Center on Louisiana Highway 16 in between St. Tammany and Washington Parishes.
Louisiana State Trooper Lorenzo Rayford testified that Lafontaine's vehicle traveled eastbound on LA 16. The vehicle swerved toward the center line, and swerved back to the right fog lines, staying within the lines, before leaving the road, crossing oncoming traffic, and striking a small tree to the left. Trooper Rayford testified that he attributed the accident “to alcohol and pretty much the condition of the driver” ... “carelessness and alcohol.” A toxicologist expert, William J. George, testified that, “in his opinion ... [alcohol] would have been a significant contributing factor.”
None of the vehicle's occupants were responsive at the scene. Rachel Gabb was pronounced dead at the scene. Charie Billiot was transported to LSU Medical Center, where she was pronounced dead at 6:34 p.m. Brian Lafontaine was transported to Lakeview Hospital, where he later died. Lafontaine's blood was drawn at the hospital revealing a blood alcohol content of .09%.5 Chrissie Billiot was also transported to Lakeview with moderate injuries and gave a statement to Louisiana State Police. Chrissie wore a seat belt and was left without permanent injury. Ryan Wiltz was initially transported to Charity Hospital before being transferred out of state due to Hurricane Katrina. He suffered a severe brain injury resulting in permanent brain damage and paralysis on his left side.
On appeal, Winn–Dixie and Meraux raise several assignments of error. Meraux additionally adopts Winn–Dixie's claims where applicable. Therefore, we will address defendants' assignments of error together.
In negligence cases, Louisiana employs a duty-risk analysis in determining whether to impose liability under La. C.C. art. 2315.6Rando v. Anco Insulations Inc., 08–1163 (La.5/22/09), 16 So.3d 1065, 1086; Roberts v. Benoit, 605 So.2d 1032, 1042 (La.1991). In order for liability to attach under a duty/risk 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...
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