Zacher v. Harrah's New Orleans Management Co.
136 So. 3d 132
La. Ct. App.2014Background
- Plaintiffs Beverly and David Zacher (Ohio residents) sued Jazz Casino, L.L.C. (doing business as Harrah’s New Orleans) after Beverly alleged she was knocked to the ground during an open, public Black and Gold Super Bowl party held in Fulton Square and injured her shoulder, ankle, and thigh.
- The party was co-hosted by Crown Crescent Distributing (Crown); Harrah’s provided the venue and 1,000 souvenir black towels that Harrah’s employees testified they handed out by hand from the stage. Plaintiffs claimed an MC threw white rolled-up t-shirts into the crowd and an unidentified patron (John Doe) knocked Beverly down reaching for one.
- Harrah’s security testified it had roving security and supplemented officers for city-wide Super Bowl events; surveillance did not cover Fulton Square. Harrah’s witnesses denied towels or other souvenirs were thrown and denied knowledge of any t-shirt-throwing promotion.
- Trial court found Harrah’s owed a duty to protect patrons from fellow guests, concluded Harrah’s breached that duty by failing to provide adequate security for the event, and apportioned fault: John Doe 75%, Crown 15% (nonparty), Harrah’s 10%; judgment awarded plaintiffs damages.
- On appeal, the Fourth Circuit reversed, holding the trial court erred in imposing liability based on failure to provide security to prevent an accident (as opposed to criminal conduct) and concluding the record did not establish Harrah’s foreseeability or control over any planned t-shirt-throwing promotional activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Harrah’s owed and breached a duty to protect Beverly from harm by other patrons at the party | Zacher: Harrah’s co-hosted the event, knew of crowd risk, and failed to provide adequate security to stop t-shirt throwing, which foreseeably led to injury | Harrah’s: Party was spectator event; it provided roving/supplemental security; any t-shirt-throwing was unplanned by Harrah’s and unforeseeable | Court: No duty to provide security to prevent accidents; trial court erred to the extent liability rested on failure to prevent an unforeseeable accident |
| Whether the throwing of items (t-shirts) was a planned, foreseeable promotional activity attributable to Harrah’s | Zacher: MC threw t-shirts from stage; Harrah’s shared responsibility for event management with Crown | Harrah’s: Only Harrah’s towels (handed out) were planned; no evidence Harrah’s organized or knew of t-shirt-throwing; Crown managed stage activities | Held: Record shows only Harrah’s towels were planned/distributed by hand; plaintiffs’ t-shirt evidence was inconsistent and speculative |
| Whether Harrah’s is vicariously liable for Crown/MC’s conduct via joint venture or operational control | Zacher: Parties described the event as a joint venture; Harrah’s had operational control of Fulton Square | Harrah’s: Relationship was colloquial, not a legal joint venture; no shared pecuniary enterprise or control over show; venue owner status alone does not impute liability | Held: No joint venture or basis for vicarious liability; Harrah’s not vicariously liable for Crown/MC acts |
| Whether trial court’s allocation of fault and damages should stand | Zacher: Harrah’s fault should remain or be increased | Harrah’s: Insufficient evidence of foreseeability, inadequate security, or causation; liability rests solely on unknown patron’s unforeseeable act | Held: Reversed trial court judgment; Harrah’s not liable as a matter of law on the security/foreseeability theory presented |
Key Cases Cited
- Luckette v. Bart’s on the Lake, Ltd., 602 So.2d 108 (La. App. 4th Cir.) (business duty to protect patrons from assaults by fellow guests in limited circumstances)
- Stewart v. Gibson Prods. Co., 300 So.2d 870 (La. App. 3d Cir.) (liability for failure to provide crowd control at planned, participatory promotional events)
- Skipper v. New Orleans Pub. Serv., Inc., 338 So.2d 771 (La. App. 4th Cir.) (duty to take reasonable action to avoid foreseeable crowd risk)
- Fleming v. Hilton Hotels Corp., 774 So.2d 174 (La. App. 4th Cir.) (business owner’s security duty focuses on preventing criminal acts, not unpredictable accidents)
- Posecai v. Wal‑Mart Stores, Inc., 752 So.2d 762 (La.) (clarifies scope of merchant duty to provide security against foreseeable criminal conduct)