274 So. 3d 57
La. Ct. App.2019Background
- Plaintiff Craig Szewczyk fell from the end of a bench at the NFL Experience held at the New Orleans Convention Center and alleged tailbone injuries.
- After the fall, an unidentified woman wearing a lanyard allegedly told him similar falls had occurred earlier that day; Szewczyk never identified her or obtained her employer.
- Szewczyk sued Party Planners West, AXIS Insurance, and New Orleans Public Facility Management under La. C.C. arts. 2317 and 2317.1 (custody/custodian liability for defective things).
- Defendants produced discovery indicating the NFL owned the bench and produced vendor lists; Szewczyk did little further discovery from 2014–2018 and did not move to compel.
- Defendants moved for summary judgment arguing Szewczyk had no evidence of custody/control, a defect/unreasonable risk, causation, or actual/constructive knowledge; Szewczyk opposed with his and a friend’s affidavits plus a post-incident photograph.
- The district court granted summary judgment; the appellate court affirmed, holding Szewczyk failed to show a defect or other essential elements and had not carried his burden to create a genuine issue of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Custody/control of the bench | Szewczyk argued the unidentified female eyewitness was a Defendants' employee, implying custody/control | Defendants said the NFL owned the bench and none of them had custody/control; many vendors and volunteers were present | Court held plaintiff did not establish custody/control and record lacked evidence tying bench to defendants |
| Defect / unreasonable risk | Szewczyk claimed bench was unsafe (unsecured) and eyewitness comment showed others fell | Defendants said accident alone doesn't prove defect; bench may have been owned/assembled by others | Court held no evidence of a defect or expert proof; accident alone is insufficient |
| Causation (bench caused fall) | Szewczyk claimed the bench flew up and caused his fall | Defendants argued lack of proof linking defect to plaintiff’s injury | Court held plaintiff failed to show causation supported by evidence |
| Actual/constructive knowledge | Szewczyk relied on unidentified witness’s remark that others fell earlier to show defendants knew/should have known | Defendants argued witness could have been vendor, volunteer, or fan; statements are hearsay and do not tie to defendants | Court held plaintiff did not prove knowledge; witness statement was inadmissible hearsay for this purpose and insufficient to create material issue |
Key Cases Cited
- Sislo v. New Orleans Ctr. for Creative Arts, 198 So.3d 1202 (La. App. 4 Cir. 2016) (standard of appellate review for summary judgment)
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (summary judgment de novo review principles)
- Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La. 1994) (definition of genuine issue and material fact)
- Alexander v. Hancock Bank, 212 So.3d 713 (La. App. 4 Cir. 2017) (elements for liability under La. C.C. art. 2317.1)
- Dupree v. City of New Orleans, 765 So.2d 1002 (La. 2000) (custody/control concept under art. 2317)
- King v. Allen Court Apartments II, 185 So.3d 835 (La. App. 1 Cir. 2015) (accident alone insufficient to prove defect)
- Wiltz v. Floor & Decor Outlets of Am., 186 So.3d 1204 (La. App. 5 Cir. 2016) (need for evidence/expert to prove cause of bench collapse)
- Lasyone v. Kansas City Southern R.R., 786 So.2d 682 (La. 2001) (accident alone does not establish unreasonably dangerous defect)
- Todd v. State Through Dept. of Social Services, 699 So.2d 35 (La. 1997) (possibility/speculation insufficient to establish claim)
- Simoneaux v. E.I. du Pont de Nemours and Co., 483 So.2d 908 (La. 1986) (summary judgment may be appropriate before discovery if no probable injustice)