Khiry Cosey on Behalf of Her Minor Children, Corbin Hilliard and Alyssa Hilliard Individually and on Behalf of the Estate of Reginald Hilliard, Jr. v. Flight Academy of New Orleans, LLC; Jazz Aviation, LLC; Qbe Insurance Corporation; Christiansen Aviation, Inc.; Abc Insurance Company; Signature Flight Support Corporation; Allianz Global Corporate & Specialty Se; The Estate of James Biondo; And Def Insurance CompanyKhiry Cosey on Behalf of Her Minor Children, Corbin Hilliard and Alyssa Hilliard Individually and on Behalf of the Estate of Reginald Hilliard, Jr. v. Flight Academy of New Orleans, LLC; Jazz Aviation, LLC; Qbe Insurance Corporation; Christiansen Aviation, Inc.; Abc Insurance Company; Signature Flight Support Corporation; Allianz Global Corporate & Specialty Se; The Estate of James Biondo; And Def Insurance Company
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-09317 C\W 2016-11198, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge
Judge Nakisha Ervin-Knott
(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge Nakisha Ervin-Knott)
Roderick “Rico” Alvendia Jeanne K. Demarest Kurt A. Offner ALVENDIA, KELLY & DEMAREST, L.L.C. 909 Poydras Street, Suite 1625 New Orleans, LA 70112
Cleo Fields THE FIELDS LAW FIRM, LLC 2147 Govеrnment St. Baton Rouge, LA 70806
Ike Spears SPEARS & SPEARS 909 Poydras Street, Suite 1825 New Orleans, LA 70112
COUNSEL FOR PLAINTIFFS/APPELLANTS
Leo Raymond McAloon, III Nicholas Bergeron GIEGER, LABORDE & LAPEROUSE, L.L.C. 701 Poydras Street, Suite 4800 New Orleans, LA 70139
Darrell K. Cherry DEUTSCH KERRIGAN, LLP 755 Magazine Street New Orleans, LA 70130
COUNSEL FOR DEFENDANTS/APPELLEES
AFFIRMED
Tukeya Jarvis, Dorothy Jarvis, and Thomas Hilliard (hereinafter “Hilliard Family“) seek review of the trial court‘s February 25, 2022 and March 8, 2022 judgments granting The Estate of James Biondo (hеreinafter “Biondo Estate“) and Flight Academy of New Orleans, LLC, Jazz Aviation, LLC, and QBE Insurance Corporation‘s (hereinafter “FANO Defendants“) (hereinafter collectively “Defendants“) motions for summary judgment. After consideration of the record before this Court and the applicable law, we affirm the trial court‘s February 25, 2022 and March 8, 2022 judgments.
Facts and Procedural History
On August 27, 2016, Briana Davis (hereinafter “Ms. Davis“) made a reservation for herself and her boyfriend, Reginald Hilliard, Jr. (hereinafter “Mr. Hilliard“), with Flight Academy of New Orleans, LLC and/or Jazz Aviation, LLC for a “Big Easy Lights at Night” aerial tour of the City of New Orleans. Later that same evening, Ms. Davis and Mr. Hilliard departed the New Orleans Lakefront Airport for the aerial tour in a Cessna 172, piloted by James Biondo (hereinafter “Mr. Biondo“). At approximately 8:15 P.M., аs the plane approached the runway for the completion of the tour, the plane disappeared from the airport‘s radar and crashed into Lake Pontchartrain. Ultimately, the plane sank underwater. Ms. Davis escaped the plane and was rescued from the water; however, Mr. Hilliard and Mr. Biondo‘s conditions were not immediately known.
On August 28, 2016, the plane was located underwater, and the Coast Guard divers inspected the plane and informed the Hilliard Family that only one body was inside the plane. However, the divers could not determinе the identity of the body. Eventually, the plane was lifted out of water on August 30, 2016, and the Hilliard Family was notified that there were two bodies in the plane, one of which was identified as Mr. Hilliard. The Hilliard Family observed as the coroner removed two body bags, оne of which contained Mr. Hilliard‘s body, from the barge carrying the plane. Certain members of Mr. Hilliard‘s family filed suit against various defendants, including the Biondo Estate and FANO Defendants on September 15, 2016. In particular, the Hilliard Family filed claims based on
On November 22, 2021, the Biondo Estate filed a motion for summary judgment against the Hilliard Family to dismiss with prejudice all their respective bystander claims under
The hearing on Defendants’ motions for summary judgment was held on February 25, 2022. Ruling from the bench, the trial court found that Defendаnts did not meet the criteria under
Standard of Review
An appellate cоurt reviews a trial court‘s decision to grant or deny a motion for summary judgment de novo. In Chatelain, this Court set forth the applicable standard of review as follows:
Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria аpplied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff[‘]s cause of action under the applicable theory of recovery; a fact is
material if it potentially insures or precludes recovery, affects a litigant‘s ultimate success, or determines the outcome of the legal disрute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.
Chatelain v. Fluor Daniel Const. Co., 2014-1312, p.3 (La.App. 4 Cir. 11/10/15), 179 So.3d 791, 793 (citation omitted).1
Motion for Summary Judgment
It is well settled that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action....”
On a motion for summary judgment the mover bears the burden of proof but is not required to negate all elements of the adverse рarty‘s claim if the mover will not bear the burden of proof at trial.
first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent‘s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovеry responses) which demonstrates he or she will be able to meet the burden at trial.
Babin v. Winn-Dixie Louisiana, Inc., 2000-0078, p.4 (La. 6/30/00), 764 So.2d 37, 39. If the adverse party fails to set forth specific facts demonstrating a genuine issue of material fact, summary judgment shall be rendered against the adverse party if appropriate.
In their sole assignment of error, the Hilliard Family asserts that the trial court erred in granting Defendants’ motions for summary judgment and dismissing with prejudice the Hilliard Family‘s bystander claims under
In Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990), the Louisiana Supreme Court outlined four circumstances under which mental anguish damages may be recovered, the one pertinent to the prеsent case being:
A claimant need not be physically injured, nor suffer physical impact in the same accident in order to be awarded mental pain and anguish damages arising out of injury to another. Nor need he be in the zone of dangеr to which the directly injured party is exposed. He must, however, either view the accident or injury-causing event or come upon the accident scene soon thereafter and before substantial change has occurred in the victim‘s condition. Id. at 570 (emphasis added).
The Legislature codified the Lejeune decision by enacting
The Legislature apparently intended to allow recovery of bystander damages to compensate for the immediate shock of witnessing a traumatic event which caused the direct victim immediate harm that is severe and aрparent, but not to compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances.
This code article “suggests a need for temporal proximity between the tortious event, thе victim‘s observable harm, and the plaintiff‘s mental distress arising from an awareness of the harm caused by the event.” Id., 97-1224, p.11, 728 So.2d at 1279.
The Hilliard Family does not claim that they witnessed the plane crash. Rather, utilizing Louviere v. Louviere, 2001-0089 (La. App. 1 Cir. 6/5/02); 839 So.2d 57, the Hilliard Family seek to satisfy the temporal proximity requirement based on the mental anguish and uncertainty they experienced for three days between the time of the crash and confirmation of Mr. Hilliard‘s death. In Louviere, the First Circuit affirmed the jury‘s award of
Conversely, in this case, the Hilliard Family‘s mental and emotional anguish caused by uncertainty over Mr. Hilliard‘s condition does not establish their physical, temporal proximity to his plane crash. The event which caused Mr. Hilliard‘s injury and death was the plane crashing into Lake Pontchartrain, not the search and rescue process. It is undisputed that the Hilliаrd Family were first notified of the plane crash almost three hours after the crash occurred. Further, it is undisputed that the Hilliard Family did not arrive at the Lakefront Airport until eight hours after the plane crash, after the plane sank into the water. The search and rescue situation, while emotional, was not an injury-causing event that caused harm to the direct victim, Mr. Hilliard, as required for recovery of
While no one disputes that the Hilliard Family suffered emotional grief due to Mr. Hilliard‘s death, it is undisputed that the Hilliard Family does not meet the temporal proximity requirement as they were notified and arrived at the Lakefront Airport hours after the crash. Accordingly, the trial court did not err in granting Defendants’ motions for summary judgment.
Decree
For the forgoing reasons, the trial court‘s February 25, 2022, and March 8, 2022 judgments granting summary judgment in favor of the Defendants are affirmed.
AFFIRMED