Yokum v. Funky 544 Rhythm & Blues Cafe
248 So. 3d 723
La. Ct. App.2018Background
- Neighbors Peterson Yokum and Polly Anderson sued Funky 544 (a Bourbon Street nightclub) alleging long‑running excessive amplified noise, seeking injunctive relief and damages for nuisance and negligence under La. C.C. arts. 667 and 2315 and violations of the New Orleans Noise Ordinance (NONO).
- The district court issued an early preliminary injunction requiring Funky 544 to comply with the NONO and implement sound‑control procedures; plaintiffs later alleged contempt and spoliation after some nightclub sound records were not retained.
- After trial a jury found Funky 544 not liable and awarded no damages; the court denied plaintiffs’ motions for JNOV and new trial and also resolved evidentiary and spoliation sanctions prior to the verdict.
- Key disputed topics at trial: proper jury instructions (weight of uncontroverted evidence; spoliation/adverse inference), applicability of NONO §66‑203(3)(d) ("contiguous or adjacent" language), admissibility of various sound measurements and expert testimony, and causation of plaintiffs’ alleged psychological injuries.
- The court excluded certain evidence (band production sheets) as a sanction, admitted later 2014 measurements produced in discovery, limited some expert testimony and rebuttal evidence, and found no abuse of discretion in those rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction on uncontroverted evidence | Court should instruct that uncontradicted plaintiff testimony is to be accepted and given great weight | Instruction given tracked law; plaintiff waived contemporaneous objection | Waived on appeal; instruction not plainly and fundamentally erroneous |
| Jury instruction for spoliation/adverse inference | Jury should be instructed adverse inference allowed where defendant destroyed evidence in bad faith | Spoliation sanction already imposed; no jury instruction required; would confuse jury | Court properly declined special spoliation instruction; sanction and exclusions were within discretion |
| Applicability of NONO §66‑203(3)(d) ("contiguous or adjacent") | Ordinance should apply; sound plainly audible 200 ft from nightclub supports coverage | Text requires property be contiguous or adjacent; 200 ft is not contiguous/adjacent | Court applied the ordinance as written; prior appellate ruling stands under law‑of‑the‑case doctrine |
| Liability under La. C.C. arts. 667/2315 (nuisance/negligence) | Evidence (complaint log, expert readings, medical testimony) was uncontroverted and compels liability | Conflicting evidence and expert methodologies support jury verdict for defendant | Jury verdict not manifestly erroneous; JNOV and new trial properly denied |
Key Cases Cited
- Adams v. Rhodia, Inc., 983 So.2d 798 (La. 2008) (standards for adequate jury instructions and appellate review)
- Davis v. Wal‑Mart Stores, Inc., 774 So.2d 84 (La. 2000) (standard for granting JNOV)
- Stobart v. State through DOTD, 617 So.2d 880 (La. 1993) (manifest error / clearly wrong standard for reviewing factual findings)
- Yokum v. 615 Bourbon St., L.L.C., 977 So.2d 859 (La. 2008) (application of La. C.C. art. 667 negligence standard for proprietors)
- Everhardt v. Louisiana Dep't of Transp. & Dev., 978 So.2d 1036 (La. App. 4 Cir. 2008) (definition and sanctions for spoliation)
- Carter v. Hi Nabor Super Mkt., LLC, 168 So.3d 698 (La. App. 1 Cir. 2014) (trial court's broad discretion in discovery sanctions and range of remedial measures)