Emerson and Colette Coleman, Individually and on Behalf of the Minor, Nakhia Coleman v. Lowery Carnival Company, Crabtree Amusements, Inc., T.H.E. Insurance Company, and the State Fair of Louisiana

Judgment rendered April 22, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,467-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

EMERSON AND COLETTE Plaintiffs-Appellants
COLEMAN, INDIVIDUALLY
AND ON BEHALF OF THE
MINOR, NAKHIA COLEMAN

versus

LOWERY CARNIVAL Defendants-Appellees
COMPANY, CRABTREE
AMUSEMENTS, INC., T.H.E.
INSURANCE COMPANY, AND
THE STATE FAIR OF
LOUISIANA

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 535-190

Honorable Craig Owen Marcotte, Judge

*****

LAW OFFICES OF Counsel for Appellants,
JACK M. BAILEY, JR. Emerson and Colette
By: Jack M. Bailey, Jr. Coleman, Individually
Jack M. Bailey, III and on Behalf of the
Minor, Nakhia Coleman

THOMAS, SOILEAU, JACKSON, Counsel for Appellee,
BAKER & COLE, L.L.P. The State Fair of Louisiana
By: Steven E. Soileau
Thomas Soileau Jackson

LAW OFFICES OF Counsel for Appellees,
THOMAS R. HIGHTOWER, JR. Lowery Carnival Company,
By: Thomas R. Hightower, Jr. Crabtree Amusements, Inc.,
Patrick Wade Kee and T.H.E. Insurance Company
Thomas R. Hightower, III
Charles T. Texada, Jr.

*****

Before PITMAN, STEPHENS, and McCALLUM, JJ.

STEPHENS, J.

Plaintiffs, Emerson and Colette Coleman, individually and on behalf

of their minor child, Nakhia Coleman, appeal judgments by the First Judicial

District Court, Parish of Caddo, State of Louisiana. Those judgments

granted motions for summary judgment in favor of defendants, The State

Fair of Louisiana, Lowery Carnival Company, and T.H.E. Insurance

Company, and denied plaintiffs’ motion for leave to file an amended and

supplemental petition. For the following reasons, the judgments of the trial

court are reversed in part and affirmed in part.

FACTS AND PROCEDURAL HISTORY

This matter arises out of a personal injury suit filed by Emerson and

Colette Coleman, individually and on behalf of their minor child, Nakhia

(the “Colemans”), against The State Fair of Louisiana (“State Fair”), Lowery

Carnival Company (“Lowery”), Crabtree Amusement, Inc. (“Crabtree”), and

T.H.E. Insurance Company (“T.H.E.”), the liability insurer for Lowery and

Crabtree. In their petition for damages, the Colemans allege that on October

23, 2008, Nakhia, who was two years old at the time, fell approximately

eight feet from a carnival ride at the state fair in Shreveport, Louisiana.

According to the Colemans, upon falling, Nakhia struck her head on the

barricade surrounding the ride and sustained a traumatic brain injury, which

resulted in recurring epileptic seizures.

State Fair is a private corporation known to be the owner, host, and

promoter of the state fair, an annual event held in Shreveport, Louisiana,

which includes a carnival, livestock show, rodeo, and other exhibits and

concessions. State Fair entered into a contract with Lowery (the “contract”)

to install and operate carnival rides at the fair. Lowery, in turn, entered into

a verbal “handshake” agreement with Crabtree (the “agreement”) to assist

Lowery in fulfilling the contract. The Colemans’ petition contained general

allegations of negligence against the defendants collectively for: breach of

duty of care; failure to make sure Nakhia was the right age, height, size, and

weight to safely ride the specific carnival ride from which she fell; failure to

securely strap Nakhia into the ride cart; failure to stop the ride in time to

prevent injury to Nakhia; and, failure to properly inspect, repair, or maintain

rides to prevent such injuries to Nakhia. They also alleged the doctrine of

res ipsa loquitur.

After several years of litigation and discovery, Lowery and T.H.E. (in

its capacity as Lowery’s insurer) filed a motion for summary judgment,

followed shortly by State Fair’s motion for summary judgment. Both

Lowery and State Fair argued the Colemans could not establish one of the

necessary elements to support their claims. Specifically, both defendants

asserted they did not own, operate, or have custody or control of either the

ride at issue or its operator. Three days prior to the hearing on the motions

for summary judgment, the Colemans filed a motion for leave of court to file

a second amended, supplemental, and restated petition, which motion was

denied. Following arguments on the motions for summary judgment, but

prior to the trial court’s ruling, the Colemans filed a motion for leave to file

a third amended and supplemental petition. Thereafter, the trial court

granted both motions for summary judgment and dismissed State Fair,

Lowery, and T.H.E. (only in its capacity as Lowery’s insurer) from the

proceedings. A final judgment in accordance with the trial court’s ruling on

the motions for summary judgment was filed on August 21, 2019. Issued on

that same date was a separate judgment denying the Colemans’ motion for
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leave to file a third amended and supplemental petition. This appeal by the

Colemans ensued.1

DISCUSSION

Legal Principles

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate. Peironnet v. Matador Res. Co., 2012-

2292 (La. 6/28/13), 144 So. 3d 791; Bank of Am., N.A. v. Green, 52,044 (La.

App. 2 Cir. 5/23/18), 249 So. 3d 219. We view the record and all reasonable

inferences to be drawn from it in the light most favorable to the nonmoving

party. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So. 2d 764.

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So. 2d

880; Driver Pipeline Co. v. Cadeville Gas Storage, LLC, 49,375 (La. App. 2

Cir. 10/1/14), 150 So. 3d 492, writ denied, 2014-2304 (La. 1/23/15), 159 So.

3d 1058. A motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show there is no genuine issue as

to material fact and the mover is entitled to judgment as a matter of law. La.

C.C.P. art. 966(A)(3). A genuine issue is one about which reasonable

persons could disagree. Hines, supra; Franklin v. Dick, 51,479 (La. App. 2

Cir. 6/21/17), 224 So. 3d 1130. In determining whether an issue is genuine,

a court should not consider the merits, make credibility determinations,

evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co.,

1
Notably, Crabtree remains a defendant in the suit, and the claims against it are
pending in the trial court.
3

51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied, 2017-01251

(La. 10/27/17), 228 So. 3d 1230. A material fact is one that potentially

ensures or precludes recovery, affects the ultimate success of the litigant, or

determines the outcome of the dispute. Hines, supra; Franklin, supra.

The burden of proof rests with the mover. Nevertheless, if the mover

will not bear the burden of proof at trial on the issue that is before the court

on the motion for summary judgment, the mover’s burden on the motion

does not require him to negate all essential elements of the adverse party’s

claim, action, or defense, but rather to point out to the court the absence of

factual support for one or more elements essential to the adverse party’s

claim, action, or defense. The burden is on the adverse party to produce

factual support sufficient to establish the existence of a genuine issue of

material fact or that the mover is not entitled to judgment as a matter of law.

La. C.C.P. art. 966(D)(1). When the motion for summary judgment is made

and supported as provided in La. C.C.P. art. 966, the adverse party may not

rest on the mere allegations or denials of his pleading, but his response, by

affidavits or other proper summary judgment evidence, must set forth

specific facts showing that there is a genuine issue for trial. Weaver v. City

of Shreveport, 52,407 (La. App. 2 Cir. 12/19/18), 261 So. 3d 1079.

Louisiana courts have adopted a duty-risk analysis in determining

whether liability exists under the facts of a particular case. Under this

analysis, a plaintiff must prove five separate elements: (1) the defendant had

a duty to conform his or her conduct to a specific standard of care; (2) the

defendant failed to conform his or her conduct to the appropriate standard of

care; (3) the defendant’s substandard conduct was a cause-in-fact of the

plaintiff’s injuries; (4) the defendant’s substandard conduct was a legal
4

cause of the plaintiff’s injuries; and, (5) actual damages. Bufkin v. Felipe’s

La., LLC, 2014-0288 (La. 10/15/14), 171 So. 3d 851; Flipping v. JWH

Properties, LLC, 50,648 (La. App. 2 Cir. 6/8/16), 196 So. 3d 149.

Lowery’s Motion for Summary Judgment

In their first assignment of error, the Colemans assert the trial court

erred by granting summary judgment in favor of Lowery. They argue

multiple genuine issues of material fact exist that render summary judgment

improper. Specifically, the Colemans claim material questions of fact

remain regarding whether: 1) Lowery actually employed the operator of the

Zamperla Mini-Jet (the name of the specific ride from which Nakhia fell); 2)

Lowery is liable under a theory of apparent authority; 3) Lowery entered a

joint venture with Crabtree and formed a partnership; and, 4) Lowery hired

Crabtree as a subcontractor but is still liable because it retained control over

Crabtree and knew or should have known about Crabtree’s unsafe policies.

Lowery asserted in its motion for summary judgment and maintains

on review that the Mini-Jet was at all times owned, operated, and controlled

by Crabtree and, furthermore, that the ride operator was an employee of

Crabtree. In support of its motion, Lowery submitted the affidavits of the

company’s owners, Willie and Tony Lowery. Both affiants testified Lowery

never owned, controlled, had custody of, or exercised any supervision or any

control, operational or otherwise, of the ride in question. They further stated

no employee of Lowery ever exercised any supervision or any control,

operational or otherwise, over the Mini-Jet.

The Colemans opposed Lowery’s motion and submitted the following

in support of their position: 1) the contract; 2) the transcript of La. C.C.P.

art. 1442 deposition testimony of Anthony Lowery, Lowery’s corporate
5

representative; 3) the transcript of La. C.C.P. art. 1442 deposition testimony

of Christopher Giordano, State Fair’s corporate representative; and, 4) the

transcript of La. C.C.P. art. 1442 deposition testimony of Patrick Crabtree,

Crabtree’s corporate representative. Notably, both Anthony and Patrick

testified regarding the agreement and relationship between Lowery and

Crabtree. They explained the contract belonged to Lowery and that Lowery

brought Crabtree in to help fulfill the contract. The two companies initially

reached an agreement regarding which company would provide which rides

(to avoid duplicates and share equally in rides generating more money).

This resulted in each company providing approximately half the rides at the

carnival. Accordingly, the two companies agreed to split equally the profits

from the carnival. The two companies frequently work events together, and

their standard arrangement is that each company set up, inspect, maintain,

supervise, and operate its own rides with total autonomy from the other

company. However, employees of both companies were outfitted in Lowery

uniforms. Patrick provided the following explanation when asked why his

employees were wearing Lowery T-shirts:

Because it’s not our contract. It’s the Lowery Carnival
contract. It’s the Lowery Carnival. And so to have a uniform
look in there, everybody wears Lowery shirts, and that’s typical
in the industry anywhere you go . . . . It is not our fair. It’s
Lowery’s fair. It’s Lowery’s contract. It’s his event. So he’s
branding his event with his stuff, but he’s not branding us.
They don’t want to brand Crabtree in there because then that
creates a different illusion.

Anthony and Patrick both testified the Mini-Jet was a Crabtree ride,

and its operator was a Crabtree employee.

On appeal, the Colemans argue the information obtained in the recent

depositions of Lowery and Crabtree regarding the legal relationship and

6

agreement between the two companies created a genuine issue of material

fact as to whether or not Lowery should be held liable for Nakhia’s injuries.

We agree. The affidavits and depositions confirm, unequivocally, that the

Mini-Jet was owned by Crabtree and at all times operated by a Crabtree

employee. However, it is clear that while Crabtree and Lowery were

responsible for setting up and operating their own rides, and Lowery was

responsible for setting up and operating its rides, Lowery had overall

responsibility for the carnival itself. Lowery’s ultimate responsibility for the

carnival arose out of the contract and also from the agreement, which

notably entailed all Crabtree employees wearing Lowery shirts, because “it’s

the Lowery carnival,” as characterized by Patrick. The Colemans assert

several theories under which Lowery could potentially be held liable for

Nakhia’s injuries. We decline to make determinations regarding those

specific theories but do find there is a genuine issue of material fact

regarding the nature of Lowery’s legal relationship with Crabtree and

whether or not Lowery owed a duty to the Colemans and could be held

liable, independently or vicariously through Crabtree, for its substandard

conduct that contributed to the cause of the accident. Particularly, we note

issues remain regarding the legal effect of the agreement which entailed

Lowery and Crabtree working together in some form and sharing in the

profits from that cooperation and also regarding the amount of control

Lowery ultimately exercised or could have exercised over Crabtree.

Accordingly, this assignment of error has merit, and summary judgment in

favor of Lowery was improper.

7

State Fair’s Motion for Summary Judgment

In their second assignment of error, the Colemans assert the trial court

erred by granting summary judgment in favor of State Fair. They argue

material questions of fact exist regarding State Fair’s: independent

negligence as the owner and promoter of the fair; voluntary assumption of a

duty to ensure safety; and, assumption of a duty to ensure safety by contract.

State Fair asserted in its motion for summary judgment and maintains

on appeal it did not own or operate any of the carnival rides and had no

custody or control over the ride involved in the accident or the operator of

the ride. In support of its motion, State Fair submitted the affidavit of

Christopher Giordano, president of State Fair, who averred State Fair did not

hire, fire, train, supervise, or have the right to control any carnival company

employees who operated rides at the fair.

In support of their opposition to State Fair’s motion for summary

judgment, the Colemans provided the contract and the same deposition

transcripts submitted in support of their opposition to Lowery’s motion. The

contract provided that State Fair agreed to the following three obligations:

1. Furnish sufficient locations upon its fairgrounds in
Shreveport, Louisiana, for [Lowery] to erect its entire show
consisting of riding devices, concessions, games and
equipment.

2. Order all ride coupons and armbands and distribute to
[Lowery] as needed but bill [Lowery] for costs of coupons and
armbands.

3. Advertise and promote [Lowery’s] show as [the] official
carnival operation of the State Fair of Louisiana.

It further provided that Lowery, in turn, agreed to an enumerated 24

obligations, including:

8

1. Present its entire combination of shows, riding devices,
concessions and games.

2. Submit an equipment list with contract[.]

3. Substitute rides on list only after approval of the manager of
the State Fair of Louisiana.
...

23. Give to [State Fair] full censorship over all shows, rides,
concessions and games; and should any of these be found
unsatisfactory to local laws or to [State Fair], the offending
show, ride, concession or game shall be closed by [Lowery]
upon request of [State Fair].
...

[Lowery] agrees that each day and subsequent to any repair or
maintenance shut down, before commencing operations of any
amusement ride or attraction, [Lowery] shall cause each ride
owner to conduct an inspection of, and submit to [State Fair] a
complete manufacturer’s operator/inspector manual check list
for such ride.

In his deposition, Christopher explained the carnival is just one

component of the state fair, in addition to a livestock show, rodeo,

concessions, and other exhibits. Christopher and Anthony both stated the

State Fire Marshal’s office is responsible for regulating and overseeing

carnival rides operating in Louisiana. Christopher further testified State Fair

does not possess the expertise to oversee the safety guidelines of the carnival

rides and instead relies on the carnival company with whom it contracts and

the State Fire Marshal’s office. State Fair likewise relies on the carnival

company to hire, fire, and properly train its employees. Anthony testified

State Fair did not operate any rides at the carnival but had control over the

property and the ability to exercise control over Lowery’s operation with

regard to granting Lowery access to the property and shutting down its

operation if State Fair deemed it to be operating in an unsafe manner. Both

Christopher and Anthony confirmed there was an area at the fair called the

9

“Kiddie Corral,” which was designated for the children’s rides and set apart

with fencing in order to keep young children away from the older crowd and

smoking and alcohol. It was State Fair’s request there be no smoking or

alcohol in this area, and State Fair stationed one of its employees at the

entrance to the Kiddie Corral area to monitor compliance. Furthermore,

Patrick confirmed State Fair was not involved in the set-up or operation of

the Mini-Jet or in the employment or supervision of the Mini-Jet operators.

He testified Stair Fair had no control over Crabtree rides or operators.

On appeal, the Colemans claim the testimony elicited during the

depositions establishes that genuine issues of material fact exist regarding

whether State Fair’s control and authority over all fair operations, including

Lowery and all carnival rides, created a duty for State Fair to ensure the

safety of fair patrons. We disagree.

In support of their argument, the Colemans rely on this court’s

previous opinion, Lewis v. Pine Belt Multipurpose Cmty. Action Acquisition

Agency, Inc., 48,880 (La. App. 2 Cir. 5/7/14), 139 So. 3d 562, writs

denied, 2014-0988, 2014-1190 (La. 8/25/14), 147 So. 3d 1120, 1121, a case

which involved both Lowery and State Fair as well. In Lewis, a young child

was catastrophically injured when he was exiting a Lowery carnival ride at

the state fair, another child gained access to the control panel and restarted

the ride. There, the trial court did not err in denying State Fair’s motion for

summary judgment as the Lewis court reasoned:

To say that State Fair had no responsibility for the operation of
the rides does not alleviate its responsibility to ensure that all of
the rides were safe from unauthorized tampering when the rides
were in the “off” position. Accordingly, we conclude that
genuine issues of material fact exist in this negligence case as to
whether there is a causal connection between State Fair’s duty

10

to provide a safe premises and safe rides, and the injuries
suffered by plaintiffs and their son.

Id. at 571.

Despite the Colemans’ allegations and arguments, this case is

distinguishable from Lewis, as those plaintiffs alleged State Fair failed to

exercise reasonable care by allowing the use of a carnival ride without a

safety switch to deenergize the control panels. Here, there was simply no

evidence presented to support the argument that State Fair failed to provide a

safe premises for the carnival or that its independent negligence was in any

way a contributing cause of the accident. The Colemans allege the accident

was caused by the ride operator’s failure to properly secure Nakhia or timely

stop the ride. That is simply not the case with State Fair, which was not

involved in the operation or regulation of the carnival rides or the

employment and training of the ride operators.

Instead, the case sub judice is more akin to St. Pierre v. Frey

Amusement, 1993-0653 (La. App. 4 Cir. 3/29/94), 635 So. 2d 358, which

held the owner of the property or event, who does not exercise control over a

ride or employee, is not liable for injuries sustained on a ride. See also,

Lambert v. Pepsico, 1996-0733 (La. App. 1 Cir. 8/6/97), 698 So. 2d 1031,

writ denied, 1997-2272 (La. 9/19/97), 701 So. 2d 178; Hauth v. Iacoponelli,

251 La. 410, 204 So. 2d 767 (1967). In St. Pierre, a child sustained injuries

on a ride at a church fair. Pursuant to the contract between the amusement

company and the church, the amusement company agreed to provide and

operate the carnival rides; the church agreed to furnish a suitable location,

water, and police protection. In affirming the trial court, the St. Pierre court

concluded:

11

Frey Amusement, not the church, had exclusive control over the
superslide and there is no rebuttal by [the plaintiff]. In view of
the fact that the church had no control at all over the superslide,
we believe that the church cannot be found liable for [the
plaintiff’s] injury.

Id., at 360.

Similarly, the evidence here clearly shows State Fair was not

exercising control over the carnival portion of the fair. There is no genuine

issue regarding State Fair’s independent negligence. The contract, affidavits

submitted, and transcripts of the depositions leave no question of fact

regarding State Fair’s position as the host and promoter of the carnival and

Lowery’s position as its operator. As observed, the state fair has numerous

attractions beyond the carnival—Lowery was unequivocally responsible for

the carnival component of the fair. State Fair’s only obligations to Lowery

under the contract were to provide a location for the fair, order ride coupons

and armbands, and promote advertising for the carnival. State Fair’s right to

exclude certain rides it deemed undesirable (whether due to safety features

or perhaps an unsavory theme), and its efforts to keep the Kiddie Corral area

free of alcohol and cigarette smoke simply do not rise to a level of control or

assumption of duty that would create a genuine issue regarding its liability,

whether independently or vicariously, for Nakhia’s injuries. Accordingly,

this assignment of error is without merit, and the trial court did not err in

granting State Fair’s motion for summary judgment.

The Colemans’ Motion to Amend and Supplement their Petition

In their third and final assignment of error, the Colemans assert the

trial court erred by denying their motion for leave to amend and supplement

their petition and by then issuing a ruling and judgment on matters not

properly before the court. The Colemans assert their new petition was to set
12

out fault and causes of action discovered during the recently held depositions

of the defendants. They claim that due to prolonged difficulty scheduling

the depositions, defendants’ motions for summary judgment were filed long

before the Colemans were able to take the depositions and file the amended

petition at issue. The Colemans claim that after denying their amendment,

the trial court, when ruling on defendants’ motions for summary judgment,

improperly ruled on the new allegations and theories contained in the

Colemans’ amended petition. Thus, defendants’ arguments were based

solely on previous allegations and theories of liability asserted by the

Colemans. The Colemans argue by denying their motion, then ruling on the

new allegations it contained, the trial court deprived them of their right to be

heard and due process. We disagree.

Louisiana C.C.P. art. 1151 provides:

A plaintiff may amend his petition without leave of court at any
time before the answer thereto is served. He may be ordered to
amend his petition under Articles 932 through 934. A defendant
may amend his answer once without leave of court at any time
within ten days after it has been served. Otherwise, the petition
and answer may be amended only by leave of court or by written
consent of the adverse party.

The law takes a liberal approach to allowing amended pleadings to

promote the interests of justice. Walton v. Burns, 47,388 (La. App. 2 Cir.

1/16/13), 151 So. 3d 616. Amendment is generally allowed, provided the

mover is acting in good faith, the amendment is not sought as a delaying

tactic, the opponent will not be unduly prejudiced, and trial of the issues will

not be unduly delayed. Giron v. Housing Auth. of City of Opelousas, 393

So. 2d 1267 (La.1981); Bilyeu v. Nat’l Union Fire Ins. Co. of Pittsburgh,

PA, 50,049 (La. App. 2 Cir. 9/30/15), 184 So. 3d 69, writ denied, 2015-2277

(La. 2/19/16), 187 So. 3d 462. However, a trial court has broad discretion in
13

ruling on motions to amend pleadings, and a decision to accept or reject an

amendment should not be disturbed on appeal absent abuse of

that discretion. Aymond v. Citizens Progressive Bank, 52,623 (La. App. 2

Cir. 6/26/19), 277 So. 3d 477, writ denied, 2019-1200 (La. 10/15/19), 280

So. 3d 602.

Five years after their original petition was filed, the Colemans filed

their first motion for leave to amend their petition, which was granted by the

trial court. Their second motion for leave to amend was filed three days

prior to the hearing on defendants’ motions for summary judgment. At the

hearing, it was established the trial court had not yet reviewed the Colemans’

motion. Furthermore, the Colemans declared they had “left a couple of

things out of that petition” and needed to “redo it again.” Therefore, with

anticipation the Colemans would file a third motion for leave to amend after

making some corrections to their proposed amended petition, the trial court

denied the Colemans’ second motion for leave to amend. Though the

motion to amend was denied, during the hearing, the Colemans proceeded to

assert facts learned during the depositions and argued those facts required

the denial of defendants’ motions for summary judgment. The Colemans

subsequently filed their third motion for leave to amend their petition 11

days after the summary judgment hearing. Their motion was denied.

In considering the broad discretion the trial court possessed when

ruling on the Colemans’ motion for leave to amend, we note the trial court

had previously allowed the Colemans to amend their petition, which

occurred five years after their original petition was filed. Furthermore, their

second and third motions were sought ten years after their original petition

14

was filed—the third motion for leave to amend filed 11 days after the

hearing on defendants’ motions for summary judgment. Acknowledging the

prolonged length of litigation in the case, the trial court did not abuse its

discretion in denying the Colemans’ motion. See Aymond, supra, where the

trial court did not abuse its discretion by denying plaintiff’s third amended

and supplemental petition, noting the litigation had been ongoing for several

years before plaintiffs attempted the filing and the proposed petition was

extremely expansive. Additionally, despite the denial of the Colemans’

motion for leave to amend, the trial court did not err by considering the

depositions and the Colemans’ arguments based on that testimony when

ruling on defendants’ motions for summary judgment. The Colemans

submitted the deposition transcripts in support of their opposition to

defendants’ motions and asserted related arguments during the hearing; thus

the trial court was free to consider all evidence presented. Accordingly, this

assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we reverse the portion of the trial court’s

judgment granting summary judgment in favor of defendants, Lowery

Carnival Company and T.H.E. Insurance Company, and the matter is

remanded to the trial court for further proceedings. We affirm the portion of

the trial court’s judgment granting summary judgment in favor of defendant,

State Fair of Louisiana, and also affirm the trial court’s judgment denying

plaintiffs’ motion for leave to file an amended and supplemental petition.

Costs of appeal are assessed two-thirds to plaintiffs, Emerson and Colette

Coleman, individually and on behalf of their minor child, Nakhia Coleman,

15

and one-third to defendants, Lowery Carnival Company and T.H.E.

Insurance Company.

AFFIRMED IN PART; REVERSED IN PART AND

REMANDED FOR FURTHER PROCEEDINGS.

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