NORRIS "MICKEY" DEARMON, SHAWN RIVERS, JOHN ROPER, II, SHAWN WHITE, AND DAVID BEXLAY
ST. ANN LODGING, L.L.C., D/B/A BOURBON ORLEANS HOTEL AND QBE NORTH AMERICA INSURANCE GROUP
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-11164,
DIVISION "L-6" Honorable Kern A. Reese, Judge
Jacques F. Bezou, Jr. Jacques F. Bezou Erica A. Hyla The
Bezou Law Firm Rene Paul Frederick Jeanne M. Mauldin Rene
Frederick & Associates, LLC COUNSEL FOR
A. Prather Mark E. Seamster Galloway Johnson Tompkins Burr
& Smith COUNSEL FOR DEFENDANTS/APPELLEES
composed of Judge Roland L. Belsome, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins
L. Belsome Judge.
plaintiffs/appellants, Norris "Mickey" Dearmon,
Shawn Rivers, John Roper, II, Shawn White, and David Bexlay
(collectively the "plaintiffs"), appeal the trial
court's granting of summary judgment in favor of
appellees, St. Ann Lodging, LLC d/b/a Bourbon Orleans Hotel
and QBE North America Insurance Group (collectively the
"Hotel"). For the reasons that follow, we reverse
and remand the matter for further proceedings.
November 21, 2013, the plaintiffs were guests of the hotel
when they were beaten and robbed in their hotel room after
opening the door for unknown individuals that identified
themselves as the police. Subsequent to the incident, the
plaintiffs filed suit against the Hotel alleging that the
Hotel was negligent in failing to provide the plaintiffs with
October of 2016, the Hotel filed a motion for summary
judgment maintaining that the plaintiffs had no admissible
evidence to establish that the Hotel breached a duty of care
owed to them or that the incident of November 21, 2013 was
reasonably foreseeable. Following a hearing, the trial court
took the motion for summary judgment under advisement and
permitted the parties to submit post-hearing memoranda.
Later, the trial court rendered judgment granting the
Hotel's motion for summary judgment.
determining whether summary judgment was correctly granted,
the appellate courts conduct a de novo review using
the same criteria as the trial court. Fleming v. Hilton
Hotels Corp., 1999-1996, p. 2 (La.App. 4 Cir. 7/12/00),
774 So.2d 174, 176 (citing Reynolds v. Select Properties,
Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183). In
accordance with La. C.C.P. article 966, "a motion for
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." La. C.C.P. art. 966(A)(3).
Louisiana, a negligence action is analyzed under a duty-risk
analysis. Burch v. SMG, Schindler Elevator Corp.,
2014-1356, p. 5 (La.App. 4 Cir. 4/7/16), 191 So.3d 652, 658
(citing McCloud v. Housing Auth. of New Orleans,
2008-0094, p. 3 (La.App. 4 Cir. 6/11/08), 987 So.2d 360,
362). There are five elements to the duty-risk analysis that
the plaintiff must prove to be successful in a negligence
claim: (1) that the defendant had a duty to conform his
conduct to a specific standard; (2) that the defendant's
conduct failed to conform to the appropriate standard; (3)
that the defendant's substandard conduct was a cause in
fact of the plaintiff's injuries; (4) that the
defendant's substandard conduct was a legal cause of the
plaintiff's injuries; and (5) actual damages. Lemann
v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7 (La.
3/10/06), 923 So.2d 627, 633 (citation omitted).
the defendant owed the plaintiff a duty is the threshold
issue in a negligence action. Id. If it is
determined that the defendant did not have a duty to protect
the plaintiff from the harm suffered, then there cannot be a
finding of negligence. Duty is a question of law.
Id. The general rule is that businesses do not have
a duty to protect their customers from the criminal
activities of third parties. Posecai v. Wal-Mart Stores,
Inc., 1999-1222 (La. 11/30/99), 752 So.2d 762, 766.
However, in Louisiana, an "innkeeper has a duty to take
reasonable precautions against criminals." Salafian
v. Gabriel, 2013-1399, p. 6 (La.App. 4 Cir. 7/16/14),
146 So.3d 753, 757 (quoting Kraaz v. La Quinta Motor
Inns, Inc., 410 So.2d 1048, 1053 (La. 1982)).
courts have adopted a balancing test to determine if a
business owes a duty to protect its customers from the
criminal acts of third parties. Id. at 768. The
court must weigh "[t]he foreseeability of the crime risk
on the defendant's property and the gravity of the risk
to determine the existence and extent of the defendant's
duty." Id. This test is applied to the facts
and circumstances surrounding each case. Id.
factor in determining the foreseeability of the crime risk is
the past occurrence of similar incidents. However, the
inquiry does not end there. The court must also consider the
location, nature, and condition of the property.
Additionally, if management or employees of the business had
knowledge that a third party's intended injurious conduct
was about to occur, there is a duty to act. See Ballew v.
Southland, Corp., 482 So.2d 890 (La.App. 2 Cir.
case, the trial court found that the plaintiffs did not meet
their burden of establishing the Hotel owed a duty to protect
them under the circumstances presented. To prove that the
plaintiffs could not establish that a duty was owed, the
Hotel offered the affidavit of its General Manager, Mark
Wilson. Mr. Wilson attested to the fact that he had no
knowledge about incidents involving alleged criminal activity
at the Bourbon Orleans Hotel or in the area immediately
surrounding the hotel. Further, he stated that there had been
no reported assaults or robberies in the common areas of the
hotel or in ...