Fredericks v. Daiquiris & Creams of Mandeville3/24/2005
In this personal injury suit, LaShawn G. Fredericks appeals a summary judgment in favor of Daiquiris and Creams of Mandeville, L.L.C., dismissing his claims against it. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
LaShawn G. Fredericks (Fredericks), his date, Laurie, another friend, and another couple went to Daiquiris and Creams of Mandeville, L.L.C. (DCM) about 8:30 p.m. on April 1, 2001. A live band was playing, and as the evening progressed, there were about fifty people socializing, drinking, and dancing. About 9:30 p.m., Christopher Gonzales, Patrick Caminita, and Phillip Caminita (the Gonzales defendants) arrived. Fredericks and his party did not know them, but the Gonzales defendants began interacting with them, paying particular attention to Laurie, including buying her drinks, sitting next to her at the bar, and watching her dance. They also stared at Fredericks in a way that made him uncomfortable. The two bartenders and a DCM employee working the door observed Fredericks, his date, and the Gonzales defendants, but did not perceive anything threatening going on. No one in the Fredericks party complained to the DCM employees or asked for any assistance. Sometime after midnight, although Laurie was still inside and was apparently reluctant to leave, Fredericks decided it was time to go and went to get the car. As he left the building, the Gonzales defendants followed him into the parking lot, where they beat him severely before running away. Fredericks was able to stumble back inside, where help was obtained. As a result of the quick, but brutal attack, several of Fredericks' facial bones were fractured, including his left cheekbone, jawbone, and orbital bones; he also suffered head trauma and possible neurological damage and had to undergo several reconstructive surgeries to his face and teeth.
Fredericks eventually sued DCM, its insurer, the Gonzales defendants, and their insurers, seeking damages for his injuries. DCM filed a motion for summary judgment on the issue of liability, claiming there was no history of fighting or altercations at DCM, its employees saw nothing threatening in the interactions between Fredericks and the Gonzales defendants, Fredericks did not report to DCM employees that he felt intimidated, and Fredericks admitted he had no warning and could not foresee that the Gonzales defendants intended to attack him. DCM contended it had no duty to prevent something that could not be foreseen or anticipated. After a hearing, the court agreed, dismissing Fredericks' claims against DCM. This appeal followed.
APPLICABLE LAW
Summary Judgment
An appellate court reviews a district court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Johnson v. Evan Hall Sugar Co-op., Inc., 01-2956 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486.
On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to
Page 1 2 3 4 5 6 7 8 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|