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Szewczyk v. Party Planners West, Inc.

Court of Appeals of Louisiana, Fourth Circuit

May 29, 2019

CRAIG SZEWCZYK
v.
PARTY PLANNERS WEST, INC., AXIS INSURANCE COMPANY AND NEW ORLEANS PUBLIC FACILITY MANAGEMENT, INC. D/B/A NEW ORLEANS ERNEST N. MORIAL CONVENTION CENTER

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00998, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE

          Paul E. Mayeaux ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT

          Foster P. Nash, III Travis L. Bourgeois Matthew F. Morgan DEGAN BLANCHARD & NASH COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Paula A. Brown

          JOY COSSICH LOBRANO, JUDGE

         This is a tort suit. Plaintiff/appellant, Craig Szewczyk, appeals the summary judgment issued by the district court on July 24, 2018, in favor of the Defendants/appellees, Party Planners West, Inc., AXIS Insurance Company, and New Orleans Public Facility Management, Inc., D/B/A New Orleans Ernest N. Morial Convention Center ("Defendants"), that dismissed his suit in its entirety. For the reasons that follow, we affirm the summary judgment.

         Factual and Procedural Background

         On January 31, 2013, Szewczyk and his friend, David Marque, took their children to play at the "NFL Experience" at the Ernest N. Morial Convention Center during the festivities leading up to Superbowl XLVII held in New Orleans. While there, Szewczyk sat on the end of a bench that flew up, causing him to fall onto his tailbone. Szewczyk claims that after he fell, a woman, who had been handing out flags and wore a lanyard around her neck with picture identification ("the female eyewitness"), came over asking him if he was alright. Szewczyk stated that he was "more embarrassed than anything" and, according to Szewczyk, the female eyewitness replied, "Don't feel bad. This happened a few times today." Szewczyk did not get the name of the female eyewitness or for whom she may have been working.

         Szewczyk filed suit on January 27, 2014, against Defendants, alleging that Defendants were negligent and liable as owners and/or custodians of a defective bench under La. C.C. arts. 2317 and 2317.1.[1] His deposition was taken on October 1, 2014, during which Szewczyk presented a photograph of the bench he took two days after the alleged incident. Following his deposition, his counsel sent discovery requests to Defendants asking for the identity of all persons working at the NFL Experience. In response to the discovery requests, Defendants claimed that the NFL owned the bench in question and none of them had custody or control of the bench on the date in question. In addition, Defendants produced the name of the event coordinator, names of more than thirty (30) vendors, and others in charge of various aspects of the event. Szewczyk did not file a motion to compel additional information or conduct any further discovery.

         The parties engaged in mediation in March 2018, which failed to settle the litigation.

         On May 14, 2018, Defendants filed a motion for summary judgment on the basis that Szewczyk could not factually support any of the essential elements of his case. Specifically, Defendants argued Szewczyk had no evidence that: the bench was in the Defendants' custody or control; the bench provided an unreasonable risk of harm; the bench caused his fall; or Defendants knew or should have known of any unreasonable risk of harm created by the bench.

         Szewczyk opposed the motion arguing the existence of genuine issues of material fact and the motion should be denied. In support of his opposition, Szewczyk submitted his own affidavit and the affidavit of David Marque, witness to the accident and who heard what the female eyewitness said. In addition, Szewczyk produced the photo of the bench that was attached to his deposition. No motion to continue the hearing was filed. He conducted no discovery between the date the motion for summary judgment was filed and when it was argued. At no time did Szewczyk argue in his opposition brief that he needed additional time to conduct discovery.

         The motion was heard on July 13, 2018. For the first time, Szewczyk claimed that Defendants' 2014 responses to the discovery requests were inadequate. He argued that the female eyewitness was exclusively under the control of Defendants who knew she was a witness at least by the time his petition was filed in January 2014. Szewczyk maintained the female eyewitness was wearing a badge with a photo identifying her as an "official employee of Defendants." He further claimed Defendants had photographs of everyone working at the NFL Experience but had not produced them to Szewczyk so he could identify her. In addition, despite knowing the female eyewitness existed, Defendants had made no effort to identify her or produce her for a deposition. Finally, Szewczyk argued that the affidavits he produced were sufficient to create material issues of fact and that the statement by the female eyewitness contained therein was admissible as an exception to the hearsay rule. Szewczyk did not, however, argue that he needed additional time to conduct discovery to properly oppose the motion for summary judgment.

         Defendants responded that Szewczyk had no evidence to support any element of his claim. In particular, he could not demonstrate that the bench was unreasonably dangerous or that it caused the accident. In addition, the NFL Experience was a massive event involving more than thirty (30) separate vendors and numerous volunteers. While Szewczyk alleged that the female eyewitness was an employee of Defendants, she could have worked for any one of the vendors, been a volunteer, or even a fan wearing a VIP badge. Thus, Szewczyk failed to support his contention that the female eyewitness was an employee of Defendants.

         The district court granted the motion and entered judgment in Defendants' favor. In its oral reasons for ...


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