ZACHARY MARCADE VERSUS NEW YORK MARINE AND GENERAL INSURANCE COMPANY AND NOLA MOTOR CLUB, L.L.C.
NO. 23-CA-17
FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
October 04, 2023
MARC E. JOHNSON, JUDGE
REVERSED; REMANDED
MEJ
FHW
JJM
COUNSEL FOR PLAINTIFF/APPELLANT, ZACHARY MARCADE
Charles M. Thomas
Leandro R. Area
COUNSEL FOR DEFENDANT/APPELLEE, NEW YORK MARINE AND GENERAL INSURANCE COMPANY AND NOLA MOTOR CLUB, L.L.C.
Mark C. Dodart
Stuart G. Richeson
James H. Gilbert
Harrison M. Martin
JOHNSON, J.
Appellant, Zachary1 Marcade, seeks review of the 24th Judicial District Court‘s November 14, 2022 judgment granting the summary judgment filed by Defendants/Appellees‘, New York Marine and General Insurance Company and NOLA Motor Club, L.L.C.‘s (collectively referred to as “NOLA Motor Club“), . Mr. Marcade sustained serious injuries to his left leg after a collision with a go-kart operated by his son‘s minor friend at NOLA Motor Club‘s kart track in Jefferson Parish. For the following reasons, we reverse the district
FACTS AND PROCEDURAL HISTORY
Mr. Marcade and his wife celebrated the birthday of their 12 year old son, along with two of their son‘s minor friends, on August 9, 2019 at a party held at the NOLA Motorsports Park, operated by NOLA Motor Club, in Avondale, LA. The party of five participated in the first heat of a race without incident. During the second heat of the race, Kart #4, driven by one of their minor son‘s friends, who is referred to in the case record as “ST“, spun out in front of Kart #14, the kart Mr. Marcade was driving. Mr. Marcade‘s kart collided into ST‘s kart at full speed, and Mr. Marcade was ejected from Kart #14 upon impact. According to a medical report completed by the NOLA Motor Club personnel in response to the accident, a medic placed Mr. Marcade‘s deformed left leg in a splint and noted that there were no other visible injuries. Thereafter, Mr. Marcade was released to the care of West Jefferson EMS for further treatment.
Before the group began the karting activity, Mr. Marcade‘s wife signed a Parental Consent, Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement form, and their son signed a Minor‘s Assumption of Risk and Release and Waiver of Liabilty, before a witness who was an employee of the track. The group also provided NOLA Motor Sports with forms that had been signed by ST and his father the day before the party. On the parental consent form, ST‘s father acknowledged:
I know the nature of the EVENT(S) and the Minor‘s experience and capabilities, and believe the Minor to be qualified to participate in the Event(s). I will inspect the premises, facilities, and equipment to be used, or with which the Minor may come in contact. IF I OR THE MINOR BELIEVE ANTYTHING IS UNSAFE, I WILL INSTRUCT THE MINOR TO IMMEDIATELY LEAVE THE RESTRICTED AREA AND REFUSE TO PARTICIPATE FURTHER IN THE EVENT(S).
Through signing the forms, the adults also acknowledged the inherent danger and risk of harm karting poses, and NOLA Motorsports Park‘s immunity from liability pursuant to
On June 5, 2020, Mr. Marcade filed a Petition for Damages against NOLA Motor Club. Mr. Marcade alleged that he “has suffered physical pain and suffering, mental anguish, medical expenses, permanent disability, and disfigurement among other damages” as a result of the accident that “was caused solely and proximately by the negligence of NOLA Motor Club.” NOLA Motor Club filed a Motion for Summary Judgment on May 5, 2022. In its motion, Appellees alleged that karting was a “motorized off-road vehicle activity” as contemplated by
The district court held a hearing on the motion for summary judgment on October 25, 2022 and granted judgment in favor of NOLA Motor Club at the end of the hearing. The court found: 1) that NOLA Motor Club met the threshold of invoking the immunity statute‘s protection; 2) the waiver executed by ST‘s parent would satisfy the statute‘s requirements such that any exception under Subsection B would not apply; 3) the father‘s certification of ST‘s ability to participate in the activity was the “best discharge” of NOLA Motor Club‘s obligation to ensure that participants could safely engage in karting; 4) that, because ST‘s father acknowledged that he knew that the child was going karting, knew the nature of karting, and determined that his child could safely participate, it was not NOLA Motor Club‘s responsibility to second guess the parent‘s assessment, so (C)(2) did not apply; 5) the disclosure and waiver executed by ST‘s parent made resolution of the statutory construction question regarding who was a participant under
This timely appeal followed.
ASSIGNMENTS OF ERROR
Appellant assigns the following as error:
- The district court committed reversible error in granting the Motion for Summary Judgment because there was contradictory evidence that established genuine issues of material fact listed as such by NOLA Motor Club.
- The district court was not allowed to judge the facts or weigh the evidence at the hearing of the Motion but did so when it disregarded key testimony and inserted language into the parental consent form.
- The district court similarly erred when it found that the parental consent form outweighed the evidence of NOLA Motor Club‘s willful and wanton disregard for its safety policy.
Plaintiff‘s opposition to summary judgment and appeal argue that two of the exceptions to the immunity provided by
Defendants/Appellees argue that the district court correctly found that NOLA Motor Club satisfied the requirements of
Alternatively, even if NOLA Motor Club‘s reliance on the Parental Consent Form signed by ST‘s father was not reasonable and prudent, Defendants argue that
NOLA Motor Club also contends that the district court correctly found that Plaintiff did not meet his burden to prove that an exception to immunity may apply, considering the facts of the case, and did not create a genuine issue of material fact as to whether NOLA Motor Club “[c]ommitted an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or commission caused the injury.”
LAW AND DISCUSSION
Appellate courts review summary judgments de novo under the same criteria that govern the trial court‘s consideration of whether summary judgment is appropriate. Caminita for & on Behalf of Caminita v. Roman Catholic Church of Archdiocese of New Orleans, 20-54 (La. App. 5 Cir. 7/8/20), 299 So.3d 1269, 1271, citing Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5 Cir. 9/19/18), 254 So.3d 1254, 1257. Summary judgment shall be granted “if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” Id.
In ruling on a motion for summary judgment, the judge‘s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party‘s favor. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures or precludes recovery, affects a litigant‘s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id. at 765–66.
On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the
issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party‘s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See La. C.C.P. art. 966(D)(1) ; see also Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006.When a motion for summary judgment is made and supported as provided in
La. C.C.P. art. 967 , an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided inLa. C.C.P. art. 967 , must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.La. C.C.P. art. 967(B) ; see also Dejoie v. Medley, 2008-2223 (La. 5/5/09), 9 So.3d 826, 832.
Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Larson v. XYZ Ins. Co., 16-0745 (La. 5/3/17), 226 So.3d 412, 417. The party seeking immunity pursuant to statute, here NOLA Motor Club, also bears the burden of proving that the statutory immunity in question applies to the particular set of facts currently at issue. Tebault v. E. Jefferson Gen. Hosp., 18-539 (La. App. 5 Cir. 3/25/19), 2019 WL 1339471 at *2, writ denied, 19-641 (La. 6/17/19), 273 So.3d 1211. As a general rule, statutes granting immunities or advantages to a special class in derogation of the general rights available to tort victims must be strictly construed against limiting the tort claimants’ rights against the wrongdoer. Id.
Recreational Use Statutes are in derogation of common or natural rights and, therefore, are to be strictly interpreted, and must not be extended beyond their obvious meaning. Richard v. Louisiana Newpack Shrimp Co., Inc., 11-309 (La. App. 5 Cir. 12/28/11), 82 So.3d 541, 546.
A. As used in this Section, the following terms shall have the following meanings, unless the context requires otherwise:
(1) “Engages in motorized off-road vehicle activity” means rides or drives, or is a passenger upon a motorized off-road vehicle, or is a person assisting a participant or management. The term “engages in a motorized off-road vehicle activity” does not include being a spectator at a motorized off-road vehicle activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to the motorized off-road vehicle activity.
(2) “Inherent risks of motorized off-road vehicle activities” means those dangers or conditions which are an integral part of a motorized off-road vehicle activity, including but not limited to:
[. . .]
(c) Collisions with other motorized off-road vehicles or objects.
(d) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the motorized off-road vehicle or not acting within his ability.
[. . .] (4) “Motorized off-road vehicle activity” includes any or all of the following:
(a) A motorized off-road vehicle show, race, competition, or performance that involves any or all motorized off-road vehicles, including but not limited to any dirt track, paved or unpaved race course, or jump.
[. . .]
(c) Driving, inspecting, or evaluating a motorized off-road vehicle belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the motorized off-road vehicle at a motorized off-road vehicle facility.
[. . .]
(8) “Participant” means any person, whether amateur or professional, who engages in a motorized off-road vehicle activity, whether or not a fee is paid to participate in the motorized off-road vehicle activity.
B. Except as provided in Subsection C of this Section, a motorized off-road vehicle activity sponsor, a motorized off-road vehicle professional, or any other person, which shall include individuals and all forms of business entities, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of a motorized off-road vehicle activity and, except as provided in Subsection C of this Section, no participant or participant‘s representative shall make any claim against, maintain an action against, or recover from, a motorized off-road vehicle activity sponsor, a motorized off-road vehicle professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of motorized off-road vehicle activities.
C. Nothing in Subsection B of this Section shall prevent or limit the liability of a motorized off-road vehicle activity sponsor, a motorized off-road vehicle professional, or any other person if the motorized off-road vehicle activity sponsor, motorized off-road vehicle professional, or other person either:
[. . .]
(2) Failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the motorized off-road vehicle activity.
[. . .]
(4) Committed an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury.
[. . .]
In the past, we have endorsed the third circuit‘s explanation of “willful” and “wanton.”
The terms ‘willful‘, ‘wanton‘, and ‘reckless’ have been applied to that degree of fault which lies between intent to do wrong, and the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to do [sic] the terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See Prosser, Law of Torts,
Section 34, at pages 187-189 (od Ed.1964). Adams v. Marathon Oil Co., 96-693 (La. App. 5 Cir. 1/15/97), 688 So.2d 75 citing Cates v. Beauregard Elec. Coop., 316 So.2d 907, 916 (La. App. 3rd Cir. 1975), aff‘d 328 So.2d 367 (La. 1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). A plaintiff must prove the misconduct:
was committed with the state of mind that [defendant] knew the public safety was at risk or should have known that it was highly probable that harm to the public would follow as a consequence of its derelictions. In other words plaintiff must show that [defendant‘s] alleged acts and omissions of negligence were accompanied by a conscious indifference to consequences amounting almost to a willingness that harm to the public safety would follow.
Adams, supra, citing Griffin v. Tenneco Oil Company, 531 So.2d 498 (La. App. 4th Cir. 1988).
The limitation of liability of motorized off-road vehicle activities was constructed from the limitation of liability of equine activity, which was first enacted in 1999 under
La. Rev. Stat. § 9:2795.1 (1999) . The current limitation of liability of equine activity is found underLa. Rev. Stat. § 9:2795.3 . With almost identical language to limitation of liability of equine activity, limitation of liability of motorized off-road vehicle activities was first enacted in 2003 asLa. Rev. Stat. § 9:2795.3 (2003) , but moved toLa. Rev. Stat. § 9:2795.4 in 2004. Due to the similarity of the language, and because there seem to be no reported state or federal cases applyingLa. Rev. Stat. § 9:2795.4 , this Court looks to the limitation of liability of equine activity as stated inLa. Rev. Stat. § 9:2795.3 to interpret the terminology found inLa. Rev. Stat. § 9:2795.4 .
Upon review of the record, we find that there is a genuine issue of material fact regarding whether NOLA Motor Club‘s failure to enforce their safety policy regarding verification that prospective SR kart operators under the age of 15 have had previous karting experience was an act or omission that constitutes wanton or willful disregard for the safety of the participant, or whether NOLA Motor Club made reasonable and prudent efforts to ensure that participants could safely engage in the sponsored activity. Looking to the equine activity statute as the court in Tillman, supra did, there are at least two cases that suggest that the equine activity‘s sponsor‘s alleged failure to mitigate a horse‘s pattern of unsafe behavior could potentially be found to be an act or omission that constitutes wanton or willful disregard for the safety of the participant.
In Faul v. Trahan, 98-488 (La. App. 3 Cir. 10/7/98), 718 So.2d 1081, 1089, a farm employee sustained injuries when a horse “flipped” onto him as he began exercising it. At trial, several witnesses testified and there were conflicts in the evidence adduced at trial regarding whether the equine activity sponsors knew that the horse was a “flipper” or “had dangerous tendencies.” Id. The Third Circuit opined that, in order to prove the liability of the defendants under the Equine Immunity Statute, the plaintiff had to show that they “acted with a reckless disregard for the consequences of their actions in the face of a known or obvious risk.” Id. at 1088-1089. Further, because the trial court‘s findings in those regards were factual in nature and would not be disturbed in the absence of manifest error, the appellate court affirmed the district court‘s conclusion that neither the horse‘s trainer nor owner “acted
In Larson, 226 So.3d at 418, the plaintiff, Danielle Larson, filed suit after her thumb was bitten off by a pony she was feeding at a horse farm. Larson testified in her deposition that she asked for permission to visit with the horses at the farm office. The office employee told her she could return with certain treats, and feed and visit with the school horses. Id. at 414. On her way to feed the horses, two riders advised her to be careful because they heard one of the school ponies had bitten a child. Id. Afterwards, when she went to feed one of the ponies a carrot, the pony knocked the carrot from her hand onto the floor and bit her thumb when they both attempted to retrieve the carrot from the floor. Id. The farm moved for summary judgment and argued that Larson‘s suit should be dismissed because of the applicability of the Equine Immunity Statute. Id. at 415. The trial court granted summary judgment in favor of the defendants. The court of appeal reversed summary judgment, finding that “Larson was not a participant engaged in equine activity, and thus [the farm] was not afforded immunity under the statute.” Id. The court of appeal‘s majority opinion also opined that even if Larson was a spectator as defined by the statute, the statute may still “provide immunity for the farm if Larson placed herself in an unauthorized area,” but found that there were genuine issues of material fact on that issue that barred summary judgment. Id. The Supreme Court agreed with the court of appeal regarding the “contested issues of material fact that make summary judgment inappropriate.” Id. at 417. In his concurrence, Justice Weimer noted:
La. R.S. 9:2795.3(C)(2) provides an exemption from statutory immunity for the failure of an equine activity sponsor, equine professional, or any other person to “make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to safely manage the particular equine based on the participant‘s representations of his ability.”La. R.S. 9:2795.3(C)(2) (emphasis added).
By analogy, to determine whether NOLA Motor Club‘s conduct may have triggered exceptions to the immunity provided by
Factual findings are required to determine whether the general disclosure (given by the parental consent forms) of the inherent danger and risk karting posed was adequate; whether NOLA Motor Club “acted with a reckless disregard for the consequences of their actions in the face of a known or obvious risk” by failing to verify the SR kart operators under the age of 15 had prior karting experience (or
Last, we find that that the use of “participant” in
DECREE
Based on the foregoing, the district court ruling granting summary judgment to NOLA Motor Club and New York Marine and General Insurance Company is reversed. The matter is remanded for further proceedings.
REVERSED; REMANDED
SUSAN M. CHEHARDY
CHIEF JUDGE
FREDERICKA H. WICKER
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON
STEPHEN J. WINDHORST
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL
JUDGES
CURTIS B. PURSELL
CLERK OF COURT
SUSAN S. BUCHHOLZ
CHIEF DEPUTY CLERK
LINDA M. WISEMAN
FIRST DEPUTY CLERK
MELISSA C. LEDET
DIRECTOR OF CENTRAL STAFF
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
23-CA-17
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 4, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL CLERK OF COURT
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
CHARLES M. THOMAS (APPELLANT)
LEANDRO R. AREA (APPELLANT)
STEPHEN M. HUBER (APPELLANT)
JAMES H. GILBERT (APPELLEE)
MARK C. DODART (APPELLEE)
MAILED
HARRISON M. MARTIN (APPELLEE)
STUART G. RICHESON (APPELLEE)
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