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Taylor v. Jean

Court of Appeals of Louisiana, Fifth Circuit

November 12, 2014

SHINEDA TAYLOR
v.
ROBERT JEAN DOING BUSINESS AS/AND AIRLINE SKATE CENTER INCORPORATED

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 700-955, DIVISION " O" . HONORABLE ROSS P. LADART, JUDGE PRESIDING.

THOMAS E. CAMPBELL, JACQUELINE R. CAMPBELL, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

LAMBERT J. HASSINGER, JR., JASON A. CAMELFORD, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Jude G. Gravois, Robert M. Murphy and Stephen J. Windhorst.

OPINION

STEPHEN J. WINDHORST, J.

[14-365 La.App. 5 Cir. 2] Plaintiff, Shineda Taylor, appeals from the granting of a summary judgment in favor of defendants, Airline Skate Center, Inc. and Robert Jean, dismissing her claims against defendants with prejudice. We affirm the decision of the trial court.

Ms. Taylor filed this suit for damages after she broke her ankle while skating at defendants' skating rink, Airline Skate Center. According to Ms. Taylor's deposition testimony, she, her three children, and her boyfriend went to Airline Skate Center on May 8, 2010. When she arrived, she obtained a pair of size 8 skates and wore them for a while, but then decided that those skates were too big. She returned them and obtained a pair of size 7 skates. She wore those skates for about 30 minutes, during which time she was walking

Page 99

on the skates in the " kiddie" area and in the carpeted area while holding the hand of her 5-year-old son. She took a step and the front wheels of her left skate locked up, causing her to fall. Paramedics arrived approximately 25 minutes later and transported her to the [14-365 La.App. 5 Cir. 3] hospital, where it was learned that she had broken her ankle. Approximately two weeks later, she underwent surgery.

In this appeal, Ms. Taylor assigns as error the trial court's ruling granting the motion for summary judgment. She contends that the trial court made a credibility judgment, which is not permitted on a motion for summary judgment. She argues that there are material issues of fact as to whether Airline Skate Center was negligent in maintaining its skates and the trial court erred in granting defendants' motion for summary judgment.

Summary judgment " shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966B(2). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim. La. C.C.P. art. 966C(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.

On appeal, our review of summary judgments is de novo using the identical criteria that govern the district court's consideration of whether summary judgment is appropriate. In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So.3d 845. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

[14-365 La.App. 5 Cir. 4] In her petition, Ms. Taylor alleges that her accident was " solely and proximately caused by defects in the skates owned by and/or under the supervision, management, care custody, and control of ...


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