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Dearmon v. St. Ann Lodging, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

March 27, 2019

NORRIS "MICKEY" DEARMON, SHAWN RIVERS, JOHN ROPER, II, SHAWN WHITE, AND DAVID BEXLAY
v.
ST. ANN LODGING, L.L.C., D/B/A BOURBON ORLEANS HOTEL AND QBE NORTH AMERICA INSURANCE GROUP

          APPEAL 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 PLAINTIFFS/APPELLANTS

          James A. Prather Mark E. Seamster Galloway Johnson Tompkins Burr & Smith COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins

          Roland L. Belsome Judge.

         The 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.

         On 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.[1] Subsequent to the incident, the plaintiffs filed suit against the Hotel alleging that the Hotel was negligent in failing to provide the plaintiffs with adequate security.

         In 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.[2]

         When 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).

         In 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).

         Whether 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)).

         Louisiana 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.

         A key 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. 1/22/86).

         In this 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 ...


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