APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2012-08773, DIVISION " N-8" . Honorable Ethel Simms Julien, Judge.
John W. Redmann, Edward Moreno, Patrick B. Sanders, LAW OFFICE OF JOHN W. REDMANN, LLC, Gretna, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS.
Jerry W. Sullivan, LEEFE, GIBBS, SULLIVAN, DUPRE' & ALDOUS, Metairie, LA, COUNSEL FOR DEFENDANT/APPELLEE.
Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Rosemary Ledet.
Rosemary Ledet, J.
[2014-1096 La.App. 4 Cir. 1] This is a personal injury suit arising out of an injury that allegedly occurred as a result of the throwing of a bag of beads at the 2012 Endymion Extravaganza. Rose Ann Citron and her husband, Wayne Citron, filed this suit against Gentilly Carnival Club, Inc., d/b/a/ Krewe of Endymion (the " Endymion Krewe" ). After conducting discovery, the Endymion Krewe filed a motion for summary judgment asserting immunity under La. R.S. 9:2796, the Mardi Gras immunity statute. From [2014-1096 La.App. 4 Cir. 2] the trial
court's decision granting the Endymion Krewe's motion for summary judgment and dismissing the suit, the Citrons appeal. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts in this case are virtually undisputed. On February 18, 2012, the Saturday before Mardi Gras, the Endymion Krewe's parade rolled through the streets of the City of New Orleans. The parade ended by making a loop through the Superdome--the venue for the 2012 Extravaganza. Mr. Citron, then a long-term (over thirty year) Endymion member, rode on one of the floats in the parade; after riding in the parade, he attended the Extravaganza.
Mrs. Citron likewise attended the Extravaganza. This was not Mrs. Citron's first time attending the Extravaganza. During the thirty year period that her husband had been an Endymion Krewe member, Mrs. Citron attended the majority of the Extravaganzas. She thus knew that the Krewe members continued to throw beads when the parade made its loop through the Superdome.
When the parade was making its loop through the Superdome on February 18, 2012, Mrs. Citron allegedly was hit in the head by a bag of beads. [2014-1096 La.App. 4 Cir. 3] Seeking to recovery for the injuries they allegedly sustained as a result of the accident, the Citrons filed this suit against the Endymion Krewe. In their petition, the Citrons alleged the accident occurred as follows:
[Mrs.] Citron was sitting and listening to music at the Endymion Extravaganza when she was struck in the head by a large bag of Mardi Gras beads thrown overhand by one of the masked riders on float number 7. The beads in the bag (which contained twelve strands of beads) were oversized and unusually heavy. The bag of beads struck Mrs. Citron in the face, injuring her forehead, nose, cheeks, mouth and eyes. Mrs. Citron suffered a concussion and immediately lost consciousness. A doctor who was dining with Mrs. Citron assisted in taking her to the first aid station in the Superdome. The responders at the first aid station obtained an ambulance for her, and she was transported to Touro Hospital Emergency Room.
In their petition, the Citrons further alleged that the Endymion Krewe was liable--both in its capacity as a krewe or an organization and vicariously for its krewe
member's actions--for the following reasons:
[Mrs.] Citron avers that her " loss or damage was caused by the deliberate and wanton act or gross negligence of the krewe or organization[.]" La. Rev. Stat. 9:2796(A). Endymion willfully and knowingly permits its members to throw full bags of beads overhand in a space where people are seated, eating, and enjoying musical entertainment. Endymion's board is fully aware that this conduct could result in serious injury to attendees of the Extravaganza. Moreover, because Endymion requires its riders to be masked making identification of the individual tortfeasor impossible, Endymion must be liable for the conduct of its members. For both reasons, La. Rev. Stat. 9:2796(A) is not applicable to the facts of this claim. Accordingly, Endymion is liable under Louisiana tort law for the injuries caused to Ms. Citron by virtue of their negligence and gross negligence.
In its answer, the Endymion Krewe averred that " each Member of the Krewe of Endymion receives two tickets to the Extravaganza, which Extravaganza begins [2014-1096 La.App. 4 Cir. 4] prior to and continues throughout the parade and the limitation of liability and assumption of risk is printed on the back of the ticket used to gain entry to the event." The Endymion Krewe also asserted the affirmative defenses of comparative fault of Mrs. Citron or third parties and immunity from liability under the Mardi Gras immunity statute, La. R.S. 9:2796.
Following discovery, the Endymion Krewe filed a motion for summary judgment based on La. R.S. 9:2796. In its motion, the Endymion Krewe argued that, regardless of the alleged acts of an unidentified float rider, the Endymion Krewe itself committed no acts that reasonable minds could characterize as gross negligence so as to defeat the immunity provided to it by La. R.S. 9:2796.
In support of its motion, Endymion offered the affidavit of Charles Emile " Peppi" Bruneau, Jr., a member of the Endymion Krewe's executive committee, who attested as follows:
o Endymion is the sponsor of the annual Krewe of Endymion carnival parade on the Saturday preceding Mardi Gras Day, in New Orleans, Louisiana.
o Endymion was established to participate in pre-Lenten festivities by providing the residents and visitors to the City of New Orleans with a traditional Mardi Gras parade during the carnival season, including the parade presented on February 18, 2012.
o Prior to each year's parade, Endymion distributes to its members several pieces of literature explaining general member information, guidelines imposed by Endymion for safety during the parade, and City ordinances regarding the proper conduct of parade participants. This same information was distributed to the membership prior to the 2012 Endymion parade.
o On the reverse side of each ticket provided to every member and guest, the following language is set forth:
The holder hereof who is attending the function specified on this ticket hereby assumes all risk and danger incidental to Mardi Gras parades and festivities, including specifically but not limited to the risk of being struck by any missile whatsoever which has been [2014-1096 La.App. 4 Cir. 5] traditionally thrown, tossed, or hurled by members of the krewe in the parade at this function, including but not limited to beads, cups, frisbees, doubloons, trinkets and other favors, and agrees to hold the krewe and the members thereof harmless from any damage in connection therewith.
Said holder further acknowledges that the liability of this krewe and the members thereof in connection with any such loss or damage is limited by and in accordance with the provisions of Louisiana Revised Statutes 9:2796.
A copy of an Extravaganza ticket (dated 1996) was attached to Mr. Bruneau's affidavit.
A copy of the Endymion Krewe's 2012 " Krewe Conduct & Safety Policy" (the " Krewe Safety Policy" ) also was attached to Mr. Bruneau's affidavit. The Krewe Safety Policy stated that Endymion Krewe members are strictly prohibited from engaging in, among other things, the following activities:
o Hurling of objects at parade viewers. (The rider should throw things to parade viewers, not at them.).
o Utilization on, or throwing from, the float of projectiles such as silly string, confetti cannons, spears, swords and other sharp pointed objects, or any other object [or] item that may cause harm or injury to riders and/or parade viewers.
In its statement of undisputed material facts, the Endymion Krewe reiterated the attestations set forth in Mr. Bruneau's affidavit, set forth above, and ...