Natalian Davis V.

03/16/2020 “See News Release 010 for any Concurrences and/or Dissents.”
SUPREME COURT OF LOUISIANA
No. 2019-OC-1928
NATALIAN DAVIS
V.
A BAR AND GRILL WITH A BITE, INC.
D/B/A THE CRAZY LOBSTER BAR & GRILL
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
PER CURIAM
Plaintiff, Natalian Davis, filed the instant suit against defendant. Plaintiff
alleged she consumed raw oysters at defendant’s restaurant and began feeling ill
shortly thereafter. Plaintiff alleged a test conducted several months later detected the
presence of E. coli bacteria in her urine, and she was ultimately diagnosed with
cystitis.
During discovery, defendant took the deposition of plaintiff’s treating
physician, Dr. Denise Harkins. Dr. Harkins testified she could not relate plaintiff’s
symptoms to the incident at defendant’s restaurant. Dr. Harkins further testified she
did not believe the E. coli she found in plaintiff’s test was from ingestion of oysters;
instead, she opined the E. coli more probably than not originated from plaintiff’s own
body.
Thereafter, defendant filed a motion for summary judgment relying in part on
the deposition testimony from Dr. Harkins. Plaintiff opposed the motion, citing her
own deposition in which she testified Dr. Harkins advised her the E. coli found in her
urine could have come from eating contaminated food.
After a hearing, the district court denied defendant’s motion for summary
judgment. Defendant applied for supervisory review. The court of appeal denied
defendant’s writ application, with one judge dissenting.

Defendant then applied to this court. Pursuant to the provisions of La. Code
Civ. P. art. 966(H), we issued a briefing order to the parties. Defendant filed a brief
pursuant to that order, but plaintiff did not.1
DISCUSSION
A ruling on a motion for summary judgment is reviewed on a de novo basis,
with the appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate -- i.e., whether there is
any genuine issue of material fact, and whether the movant is entitled to judgment as
a matter of law. Wright v. Louisiana Power & Light, 06-1181 (La. 3/9/07), 951 So.2d
1058, 1070. A court must grant a motion for summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to material fact, and that
mover is entitled to judgment as a matter of law.” La. Code Civ. P. art. 966(B).
On a motion for summary judgment, the burden of proof remains with the
movant. However, if the moving party will not bear the burden of proof on the issue
at trial and points out there is an absence of factual support for one or more elements
essential to the adverse party’s claim, action, or defense, then the non-moving party
must produce factual support sufficient to establish he will be able to satisfy his
evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there
is no genuine issue of material fact and summary judgment will be granted. La. Code
Civ. P. art. 966(D)(2); Murphy v. Savannah, 18-0991 (La. 5/8/19), 282 So. 3d 1034,
1038.
1 Defendant also filed a motion for oral argument. Considering the relatively simple facts
of this case, combined with plaintiff’s failure to file a brief, we determined oral argument would not
be necessary and therefore denied the motion.
2

In the instant case, defendant produced evidence, through the deposition of
plaintiff’s treating physician, Dr. Harkins, indicating the injuries of which plaintiff
complained were not related to her ingestion of oysters at defendant’s restaurant. At
that point, the burden shifted to plaintiff to produce factual support sufficient to
establish she will be able to satisfy her evidentiary burden of proof at trial. Plaintiff
produced no medical testimony or evidence in opposition to defendant’s motion for
summary judgment, but instead relied on her own testimony in which she claimed her
physicians advised her that her injuries resulted from ingestion of oysters. However,
this assertion is directly contradicted by the sworn testimony of Dr. Harkins.
Under these circumstances, we find the district court erred in denying
defendant’s motion for summary judgment. In the absence of any showing of genuine
issues of material fact, we must render summary judgment in favor of defendant.
DECREE
For the reasons assigned, the writ is granted. The judgment of the district court
is reversed. Summary judgment is granted in favor of defendant, A Bar and Grill with
a Bite, Inc. d/b/a the Crazy Lobster Bar & Grill, dismissing the suit against it with
prejudice.
3