Paul Broussard VS Anthony Gallo, The Cadillac Cafe', Inc., Lance Meaders, Forest Insurance Facilities and XYZ Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0239 PAUL BROUSSARD n ANTHONY GALLO THE CADILLAC CAFE INC LANCE MEADERS VERSUS FOREST INSiJRANCE FACILITIES XYZ INSURANCE COMPANY DATE OF JUDGMENT NOV 2 2012 ON APPEAL FROM TI NINETEENTH JUDICIAL DISTRICT COURT JMBER 971 NI 558 SECTION 8 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE WILSON FIELDS JUDGE Todd C Comeaux Baton Rouge Louisiana Clary Jr Rouge Louisiana Counsel for Plaintiff Appellee Paul Broussard James R Counsel far Defendant Appellant Baton The Cadillac Cafe Inc Nicholas J Chauvin Alan 3 Yacoubian George L Lamaraca Scott R Huete New Orleans Louisiana Counsel for Defendant Appellant Isaac H Ryan New Orleans Louisiana John N Samaha Baton Rouge Louisiana Alea London Ltd Counsel for Defendant Appellee Benjamin Meadors x BEFORE Ki PETTIGREW AND McDONALD JJ JHN Disposition REVERSED IN PART AFFIRMED IN PART AND RENDERED KUHN J appellants Defendants the Cadillac Cafe Inc Cadillac Cafe and Alea London Ltd Alea appeal a district court judgment finding the Cadillac Cafe sixty percent at fault for injuries sustained by plaintiff Paul Broussard Broussard in an altercation that occurred outside the Cadillac Cafe Finding that the Cadillac Cafe did not owe a duty to protect Broussard against the criminal acts of a third party we reverse that portion of the judgment allocating it with sixty percent fault and render judgment dismissing Broussard claim against the Cadillac Cafe and Alea The s judgment ofthe trial court is affirmed in all other respects FACTLTAL AND PROCEDURAL BACKGROUND At approximately 12 a on September 9 2006 Broussard Steven Akers 30 m and several other friends arrived at the Cadillac Cafe a bar located in Baton Rouge Louisiana Shortly before 2 a Akers interjected himself into a conversation 00 m that another patron Benjamin Mead Meadors was having with Melissa Ware rs Ware a bartender at the Cadillac Cafe As a result Meadors and Akers exchanged words including profanities Broussard was sitting several feet away He claims he walked over and stood between the two men telling Akers it was not worth it According to Broussard Meadors Meadors denied making such a called him a n r before walking away racial slur but admitted that he told Akers to f k off before he turned and walked away Ware who was a friend of Broussard denied seeing him speak to Meadors during the exchange ofwords The incident between Meadors and Akers lasted less than a minute Ware testified that the exchange of words was not loud disruptive or violent in nature and it did not cause her any concern Paul Gallo Jr the owner ofthe Cadillac Cafe was standing approximately four feet away at the time and did not notice any disturbance Broussard admitted that he could not tell if any voices were raised 2 during the exchange Moreover Ware Meadors and Broussard each testified that they considered the matter resolved or closed when Meadors walked away Subsequently Meadors left the bar either shortly before or as it was closing at 00 2 am No one could state definitively how much time had elapsed at that point since the exchange of words between Meadors and Akers Various estimates ranged from five to twenty minutes Regardless Ware Meadors and Anthony Gallo III who was working the exit door at the Cadillac Cafe each testified that Broussard and Akers quickly followed Meadors out of the bar Ware additionally testified that as Broussard and Akers hurried out behind Meadors she told them to settle it down now In contrast Broussard testified that Meadors left the bar immediately after the exchange of words with Akers and that he and Akers remained inside for another five to twenty minutes In any event when Broussard and Akers exited the bar Broussard saw Meadors in the parking lot approximately eight feet away from the door Although Broussard could have gone either right or left to reach his vehicle he admitted that he instead chose to approach Meadors despite his assumption that Meadors wanted to continue the earlier disagreement with Akers The situation escalated quickly as Meadors and Akers again exchanged words According to Meadors Broussard also repeatedly demanded an apology from him to which he responded that Broussard had the wrong person Broussard then placed his hand on Meadors chest asserting that he did so in arder to keep Meadors and Akers separated and because Meadors had gotten into Broussard space Regardless of Broussard motive Meadors s s instantly responded by hitting Broussard on the left side of his face with a beer bottle that Meadors had carried out ofthe Cadillac Cafe The bottle broke and badly cut s Broussard face Meadors attempted to flee on foot but was quickly 3 apprehended Broussard sustainPd a facial laceration that required approximately four fifly stitches and left him with a scar On September 6 2007 Broussard filed a personal injury suit against Anthony Gallo 7r the Cadillac Cafe Cadillac Cafe insurer and Meadors As insurer Alea filed a motion for summary judgment seeking to be dismissed from the suit on the basis that the insurance policy it issued to the Cadillac Cafe excluded coverage for injuries resulting from assault and battery The trial court denied the motion for summary judgment Following a bench trial the trial court rendered judgment in favor of Broussard and against the Cadillac Cafe Alea and Meadors finding the Cadillac Cafe sixty percent at fault Meadors thirty percent at fault and Broussard ten percent at fault The court fixed Broussard general damages at 35 and his past s 00 000 medical expenses at 5 In view of its allocation of fault the trial court 91 108 rendered judgment in favor of Broussard and against the Cadillac Cafe and Alea in solido for 24 and in favor of Broussard and against Meadors for 35 065 67 032 12 Additionally the defendants were cast for all costs The Cadillac Cafe now appeals arguing the trial court erred 1 in finding it liable for Broussard sinjuries 2 alternatively in allocating it with too much fault and 3 in awarding excessive general damages Alea has also appealed contending the trial court erred 1 in finding the Cadillac Cafe breached a duty owed to Broussard 2 in failing to find coverage was excluded under its policy assault and s battery exclusion 3 in imposing greater fault to the Cadillac Cafa than to the actual participants in the altercation and 4 in awarding excessive damages Gallo was eventually dismissed from the suit in his individual capacity 2 Alea filed a writ application seeking review of the denial of its motion for summary judgment but this Court refused to consider the application because it was filed untimely See Broussard u Gallo 09 La App lst Cir 12 unpublished 1877 99 21 4 DUTY OF CADILLAC CAFE In imposing liability on the Cadillac Cafe the trial court stated in its oral reasons for judgment that it found the bar owed a duty to this plaintiff Broussard of allowing not Mr Meadors to leave the premises with an open container the beer bottle that was used to strike the plaintiff in his face The court indicated that it also considered the earlier incident inside the bar in allocating fault between the parties On appeal Cadillac Cafe and Alea argue that the trial court erred in concluding the Cadillac Cafe breached a duty it owed to Broussard under the City of Baton Rouge open container law which was not intended to protect against s assault and battery Mareover they note that the Cadillac Cafe took reasonable measures to enforce compliance with the open container law and that it was not cited for any violation thereof Additionally appellants contend that the Cadillac Cafe had no duty under Louisiana law to protect Broussard against the assault by Meadors that occurred outside in the parking lot because it was not reasonably foreseeable and in any event occurred too quickly for intervention Cadillac Cafe also asserts that Broussard was in fact the initial aggressor in the confrontation with Meadors In response Broussard argues that the Cadillac Cafe violated the open container law as well as its own policies by allowing Meadors to walk past the s bar doorman with a beer bottle which Meadors testified he made no effort to conceal Thus Broussard contends that the Cadillac Cafe by allowing Meadars to leave with the beer bottle negligently breached the duty of care it had assumed to protect his safety Broussard also maintains that the employees of the Cadillac Cafe breached its assumed duty to protect patrons exiting the bar because it was 5 reasonably foreseeable given the earlier incident between Akers and Meadors that an altercation might occur outside the bar between them In Louisiana a dury analysis is utilized to resolve the issue of a business risk sliability to a patron for injuries sustained in a criminal assault by a establishment third party The first prong of this analysis is whether there was a duty on the part of the defendant to protect against the risk involved Duty is a question of law Green v Inftnity International Inc 95 La App lst Cir 6 676 2356 96 28 2d So 234 236 In Fredericks v Daiquiris Geams of Mandeville L C 567 04 La App lst Cir 3 906 So 636 640 writ denied OS La OS 24 2d 1047 OS 17 6904 So 706 this Court suinmarized the duty a business proprietor owes 2d to his patrons as follows A business proprietor owes his patrons the duty to provide a reasonably safe place The proprietar general duty toward his patrons s has been construed to encompass a number of more specific obligations First the proprietor must himself refrain from any conduct likely to cause injury to a guest He must maintain his premises free from unreasonable risks of harm or warn patrons of known dangers thereon Beyond these measures the proprietor must exercise reasonable care to protect his guests from harm at the hands of an employee another guest or a third party Reasonable care in the context of the threat of harm presented by the enumerated parties has been interpreted in turn to embrace certain duties sub First should a disturbance or a likely disturbance manifest itself the proprietor if time allows must attempt to prevent injury to his patrons by calling the police Second should the business owner or manager become aware of impending or possibly impending danger he must warn his patrons of the potential danger As to criminal acts performed by third parties there is generally no duty to protect others from the criminal acts of those parties In other words the general duty of reasonable care does not extend to protecting patrons from the unanticipated criminal 3 In order for liability to attach under a duty analysis a plaintiff must prove 1 the defendant risk had a duty to conform his conduct to a specific standard of care the dury element 2 the defendant failed to conform his conduct to the appropriate standard the breach element 3 the s defendant substandard conduct was a cause of the plaintifPs injuries the cause fact in fact in element 4 the defendanYs substandard conduct was a legal cause of the plaintiff injuries the s scope of protection element and 5 actual damages the damage element MercLzants Farmers Bank Pinsonneaudt v Trust Company 01 La 4816 So 270 275 2217 02 3 2d 76 6 acts of third parties Only when the proprietor has knowledge of or can be imputed with knowledge of the third party intended s conduct is the daty to protect invoked triggering the sub duties discussed above This duty only arises under limited circumstances when the criminal act in question was reasonably foreseeable to the owner of the business I Emphasis added citations omitted Duty is a question of law the relevant inquiry is whether the plaintiff has any law statutory jurisprudential or arising from general principles of fault to support the claim that the defendant owed him a duty Moreover as a question of law duty is a legal question subject to de novo review on appeal Perkins u Entergy Corporation 98 La App lst Cir 12 756 So 388 404 affirmed 2081 99 28 2d 1372 1387 1440 00 00 00 La 3 782 So 606 In the present case we O1 23 2d conclude that the trial court legally erred in its conclusion that the Cadillac Cafe owed a duty to Broussard to prevent Meadors from leaving the premises with a beer bottle and to protect Broussard from the criminal assault by Meadors The Code of Ordinances of the City of Baton Rouge and the Parish of East Baton Rouge 13 provides in pertinent part that 1018 g For the purpose of discouragirtg public drinking it shall be unlawful for any person to remove an open container containing alcoholic beverages as defined herein from any business lounge restaurant or establishment which is licensed under the provisions of title 9 of this Code Emphasis added At trial Gallo testified that although it is not required to do so the Cadillac Cafe attempts to enforce compliance with the open container ordinance In addition to posting a doorman at the exit during peak hours to inform patrons that they cannot leave with open containers the Cadillac Cafe provides trash receptacles both inside and outside the exit doar far patrons to dispose of open containers 7 Nevertheless Gallo testified that the doorman would not physically restrain a patron from leaving with an open container if the patron chose not to comply In the instant case the doorman on duty at the Cadillac Cafe testified that he did not see Meadors holding a beer bottle as he exited Nevertheless the trial court committed legal error in concluding that the Cadillac Cafe owed a duty to Broussard to prevent Meadors from leaving with the bottle Ordinance 13 gimposes a 1018 duty on individuals not to remove open containers containing alcoholic beverages from a licensed business establishment Thus Meadors was the party that violated the open container ordinance not the Cadillac Cafe Even more significantly the ordinance expressly states that its purpose is to discourage public drinking as opposed to preventing individuals from assaulting one another with glass bottles Moreover even assuming arguendo that the Cadillac Cafe had or assumed a duty to prevent patrons from leaving the premises with an open container that duty was not one owed to Broussard individually Nor was the risk of the injuries that occurred to Broussard within the scope of any such duty Given its stated purpose the scope of any duty to enforce the open container ordinance did not encompass the risk that a patron leaving the bar with a glass bottle would criminally assault Broussard with the bottle The fact that the ordinance is not directed at preventing such assaults is demonstrated by its broad prohibition against the removal of all open containers from a bar not merely glass bottles Accordingly the Cadillac Cafe did not owe any duty to Broussard to prevent Meadors from leaving the premises 4 Rhett Whitty a legal investigator officer with the Alcohol Beverage Control Office compliance a division of the East Baton Rouge Pazish Attorney sOffice testified that it is not advisable for a s bar employees to pursue a patron who chooses to defy the open container ordinance Under Section 6 of the Baton Rouge Wine Beer and Liquor Ordinance No 12279 the 2 A holder of a license issued under that ordinance has a duty not to permit allow or encourage any person without a proper license to consu me any alcoholic beverage on any parking lot or open or closed pazking space within or contiguous to the licensed premises The record is devoid of any indication that the Cadillac Cafe permitted allowed or encouraged the consumption of alcoholic beverages in the pazking lot outside iYs premises 8 with an open beer bottle Additionally business owners are not the insurers of the safety of their patrons See Posecai v Wal 5tores Inc 99 La 11 752 So Mart 1222 99 30 2d 762 766 The duty of a business owner to take reasonable care for the safety of its patrons does not ea to unforeseeable or unanticipated criminal acts of third end parties Consequently a duty to protect a patron against criminal acts by a third party arises only in limited circumstances when the criminal act in question was reasonably foreseeable to the business owner Fredericks 906 So at 640 In the 2d present case the record does not support a conclusion that it was reasonably foreseeable that Meadors would criminally assault Broussard in the parking lot outside the Cadillac Cafe The earlier incident inside the bar occurred between Meadors and Akers rather than between Meadors and Broussard The incident was of extremely short duration less than a minute Additionally it was not disruptive or violent in nature The fact that the exchange of words was not particularly loud or disruptive is evidenced by the fact that Broussard could not tell if any voices were raised and the owner of the Cadillac Cafe was standing a few feet away and was unaware that it had occurred until after the attack on Broussard Even though Broussard testified that Meadors made a racial slur to him everyone considered the matter closed when Meadors walked away including Broussard Based on Broussard express s testimony that he did not feel threatened or in danger the incident evidently was not of a nature to cause him concem that he might be attacked by Meadors Consistent with this conclusion Broussard did not report the incident or request assistance from any employee of the Cadillac Cafe Under these circumstances the Cadillac Cafe had no basis for anticipating that the violent attack on Broussard would occur 9 Since the criminal assault by Meadors was not reasonably foreseeable no duty was imposed on the Cadillac Cafe to protect Broussard See Fredericks 906 So at 645 Taylor u Stewart 95 2d 1743 La App lst Cir 4 672 So 302 309 Therefore that portion of the trial 96 2d court judgment imposing liabiliry upon the Cadillac Cafe and its insurer Alea must be reversed CONCLUSION For the reasons assigned that portion of the trial court judgment finding defendants the Cadillac Cafe Inc and Alea London Ltd liable to plaintiff Paul Broussard for damages and costs is reversed and judgment is hereby rendered s dismissing Broussard claims against those defendants with prejudice The judgment of the trial court is affirmed in all other respects All costs of this appea are assessed to plaintiff Broussard REVERSED IN PART AM IN PART AND RENDERED NDED 6 In view of this result we pretermit the additional assignments of error raised by the Cadillac Cafe and Alea relating to the allegedly excessive percentage of fault allocated to the Cadillac Cafe the assault and battery exclusion in the Alea policy and quantum Moreover this Court cannot consider reallocation to Meadors of any portion of the sixty percent fault originally allocated to the Cadillac CafB since Broussard neither appealed nor answered the defendants appeals See La C art 2133 Matthews u Consolidated Companies Inc 95 La P 1925 95 8 12 664 So ll91 1191 2d 92 10 I

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