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Binkley v. Landry9/28/2001
Plaintiffs seek review of three summary judgments and one judgment maintaining an exception of no right of action rendered by the trial court dismissing plaintiffs' claims. We affirm.
FACTS AND PROCEDURAL HISTORY
This litigation arose out of an accident in Baton Rouge, Louisiana, on February 21, 1998, at the Spanish Town Mardi Gras Parade which was sponsored by a non-profit organization, The Mystic Krewe for the Preservation of Lagniappe in Louisiana, Inc. (Mystic Krewe). According to plaintiffs' original petition, this was the first Mardi Gras parade ever attended by Tiffany Binkley. Tiffany's grandmother, Genie Massey, took seven-year-old Tiffany to the parade along with some other family members. They found a spot along the parade route near the intersection of North Third Street and North Boulevard.
During the parade, a pickup truck (owned by Robin Toler and insured by State Farm Mutual Automobile Insurance Company) suddenly left the parade route after its driver, John E. Landry, momentarily lost consciousness. Mr. Landry drove into the crowd of spectators where plaintiffs were viewing the parade. Tiffany was seriously injured when she was run over by the pickup truck.
Plaintiffs filed suit for personal injury damages against Mr. Landry, Ms. Toler, State Farm, Mystic Krewe and its insurer, Essex Insurance Company (Essex), and the City of Baton Rouge (City). Plaintiffs later amended their petition to include an action against Mystic Krewe's insurance agent, McInnis, Tyner & Daniel, Inc. (McInnis Agency), for negligently failing to procure insurance covering injuries to spectators at the parade as requested by Mystic Krewe. The amended petition also included allegations of gross negligence on the part of Mr. Landry and Mystic Krewe. Plaintiffs alleged that Tiffany's injuries were caused by the gross negligence of Mystic Krewe in failing to supervise drivers and in allowing Mr. Landry to drive the pickup truck in the parade even though he had been drinking alcoholic beverages and suffered from an alleged medical condition which caused him to "black out." Essex was named as a defendant because it issued a "Spectator Liability" policy of insurance to Mystic Krewe. The City was named as a defendant for allegedly negligently issuing the parade permit to Mystic Krewe, negligently approving a dangerous parade route, and negligently failing to protect the public viewing the parade.
Essex and Mystic Krewe filed motions for summary judgment based upon statutory immunity provided to Mardi Gras krewes in Louisiana Revised Statute 9:2796. The City filed a motion for summary judgment based upon statutory immunity provided to public entities in Louisiana Revised Statute 9:2798.1. The McInnis Agency filed an exception of no right of action based upon the lack of a contractual relationship between it and plaintiffs. After separate hearings, the trial court granted all three motions for summary judgment and maintained the exception of no right of action, thereby dismissing all of plaintiffs' claims. Plaintiffs appeal.
DISCUSSION
Summary Judgment - Standard of Review
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Rambo v. Walker, 96-2538, p. 4 (La. App. 1st Cir. 11/7/97), 704 So.2d 30, 32.
The summary judgment procedure is favored and is designed to secure the just,
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