Darnell Carter v. Steak House Steaks, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-799 consolidated with 13-918

DARNELL CARTER, ET AL.

VERSUS

STEAK HOUSE STEAKS, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20112374
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Stephen N. Elliott
Carl J. Giffin, Jr.
Howard B. Kaplan
Bernard, Cassisa, Elliot & Davis
3838 N. Causeway Blvd, Suite 3050
Metairie, LA 70002
(504) 834-2612
COUNSEL FOR DEFENDANTS/APPELLEES:
Steak House Steaks, Inc.

George B. Hall, Jr.
Katie Whitman Myers
Phelps Dunbar, L.L.P.
365 Canal St., Suite 2000
New Orleans, LA 70130-6534
(504) 566-1311
COUNSEL FOR DEFENDANT/APPELLEE:
Catlin Specialty Insurance Company

Richard E. King
Jennifer L. Simmons
Galloway, Johnson, Tompkins, Burr & Smith
701 Poydras St., Suite 4040
New Orleans, LA 70139
(504) 525-6802
COUNSEL FOR DEFENDANTS/APPELLEES:
Louisiana Capital Foods, LLC
CampNations
Steak House Steaks, Inc.
James Nations, Jr.

Lamarre T. Elder
Michael J. Harris
Law Offices of Pius A. Obioha & Associates
1550 N. Broad St.
New Orleans, LA 70119
(504) 265-0437
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Darnell Carter
Michelle Carter

GREMILLION, Judge.

In this consolidated matter, the plaintiffs, Darnell and Michelle Carter, the

natural parents of Kyris Carter, deceased, appeal the trial court’s grant of summary

judgment in favor of the defendants, CampNations, LLC and Louisiana Capital

Foods, LLC (the event organizer and landowner defendants), and James Nations,

Jr., Steak House Steaks, Inc., and Caitlin Specialty Insurance Company 1 (Steak

House defendants). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Kyris Carter was an employee of Steak House Steaks, Inc. Shortly after

leaving his employment with Steak House Steaks, Kyris, who was twenty-four

years old, attended a company gathering on October 3, 2010, with his best friend,

Wisdom Adikema. The party was located at the company’s vacation rental on

False River in Pointe Coupee Parish. Steak House Steaks decided to have the party

to reward its employees for meeting certain goals. The property was owned by

CampNations, LLC, and the event was organized by Louisiana Capital Foods,

LLC. James Nations, Jr. owns CampNations, LLC. Tragically, Kyris drowned in

False River after jumping off the second story of a pier. His parents thereafter

filed a lawsuit for damages.

All defendants filed motions for summary judgment, which the trial court

granted. The trial court found that there was no genuine issue of material fact that

Kyris jumped off of a pier located at a neighboring property rather than any

1
James Nations, Jr., is the owner of Steak House Steaks, Inc., which is insured by a policy
issued by Caitlin Specialty Insurance Inc. They are the defendants in the consolidated matter.
See 13-799 (La.App. 3 Cir. __), __ So.3d __.

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property owned by defendants.2 The Carters filed a motion for new trial which was

denied. The Carters now appeal.

ISSUES

In docket number 13-918, defendants assign as error:3

1. The Trial Court erred in granting Defendant’s Motion for Summary
Judgment despite the following documented material issues of fact
inherent in the Affidavits and other evidence presented by Plaintiffs
and Defendant:

a. Whether or not Kyris Carter entered False River and drowned
from the property located at 9353 Island Rd, Ventress, LA, as
referenced in the Pointe Coupee Sherriff’s Office’s
Investigative Report;

b. Whether there was an unreasonable risk of injury;

c. Whether or not Kyris Carter voluntarily jumped into False
River, leading to his drowning death;

d. Whether or not any witness, as referenced in Defendant’s
Memorandum in Support of Motion for Summary Judgment,
saw Kyris Carter “voluntarily jump into the subject water from
an adjacent, neighboring property”,

e. Whether or not Wisdom Adikema, as referenced as a witness in
Defendants’ Exhibit C, affidavit of Gerald Major, gave
conflicting statements to Mr. Major (Defendants’ insurance
claims adjuster), Officer Clyde McCoy (Plaintiffs’ independent
investigator), Darnell and Michelle Carter (parents of the
decedent), and Officer Torrick Friels (Point Coupee Sheriff’s
Officer who responded to the scene of the drowning incident);

f. Whether or not the nonexistence of lifeguards, lifejackets,
inadequacy of signage, and lack of other life saving,
preventative mechanisms, rendered defendants’ property
defective; and

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The CampNations address is 9353 Island Road; the neighboring property address is
9351 Island Road. The owners of the neighboring property, known only in the record as Mia and
Stuart, were not home at the time of this accident.
3
In 13-799, the assignments of error are identical except that number two is omitted.

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g. Whether or not adequate life saving, preventative measures
were taken by the organizers of this company gathering given
the fact that alcohol was to be served to attendees at a night-
time gathering adjacent to False River.

2. The trial court failed to apply any scrutiny to the affidavit and
summaries of recorded statements provide[d] by the Defendants in
support of their motions for summary judgment.

3. The trial court erred in relying on the affidavit of a third person who
had no direct knowledge of the drowning incident.

DISCUSSION

An appellate court reviews a grant of summary judgment de novo, applying

the same standards as would a trial court. Schroeder v. Bd. of Supervisors. of La.

State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by

La.Code Civ.P. arts. 966 and 967. Article 966(c)(2), as amended by Act 483 of

1997, provides that while the burden of proving entitlement to summary judgment

rests with the mover, if the mover will not bear the burden of proof at trial on the

matter 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 facts of the

adverse party's claim, action, or defense, but rather to point out to the court that

there is an absence of factual support for one or more elements essential to the

adverse party's claim, action, or defense. Thereafter, if the adverse party fails to

produce factual support sufficient to establish that he will be able to satisfy his

evidentiary burden of proof at trial, there is no genuine issue of material fact.

Hardy v. Bowie, 98–2821 (La. 9/8/99), 744 So.2d 606.

The Carters asserted a negligence theory under La.Civ.Code art. 2317.1,

which states:

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The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. Nothing in this Article shall
preclude the court from the application of the doctrine of res ipsa
loquitur in an appropriate case.

The determination of whether a person has custody or garde of a thing such

that he will be liable for any damages it may cause is a factual determination.

Rando v. Anco Insulations, Inc., 08-1163, 1169 (La. 5/22/09), 16 So.3d 1065.

Plaintiffs argue that there is a genuine issue of fact as to whether Kyris jumped off

a neighboring pier and that even if he did, defendants were still liable because there

was an “implied and explicit invitation from the enterprise’s employees to use the

[neighbor’s] pier for jumping into the river.”

Plaintiffs argue that the trial court failed to scrutinize the affidavits and

recorded testimony because the witnesses’ summarized statements only mentioned

the neighboring pier a month after the accident occurred.

Plaintiffs further argue that the trial court failed to question the veracity of

the statements made by the witnesses because the coroner’s report found no

alcohol in Kyris’s body, whereas the witnesses all testified that he had a small

amount of alcohol at the party. Further, plaintiffs argue that the insurance

adjustor’s affidavit should be afforded little weight because it was based on

second-hand knowledge. Finally, plaintiffs argue that the trial court failed to

consider the fact that there were competing affidavits.

Four eyewitnesses to the accident stated that Kyris jumped off the

neighboring second-story pier and accidentally drowned. The neighbor’s property

was separated from the CampNations address by a fence, but three party attendees,

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Adikema, Kyris, and Ronald Houston, walked around it at the end of the yard

where the fence meets the river. All of the witnesses said that Kyris was alone on

the second story of the pier immediately prior to jumping and that several rescue

attempts were made, but Kyris resisted assistance because he was panicked.

The evidence submitted in support of the motion for summary judgment

included:

The affidavit of Gerald Major, the insurance adjuster who investigated the

accident, who determined that Kyris voluntarily jumped from the neighboring pier

based on recorded statements he obtained from Adikema, Houston, Robert Wright,

and Nora Bridges, who were all witnesses to the accident. Major had been an

insurance adjuster for nearly twenty-five years at the time he questioned the

witnesses.

Major’s recorded statement summaries were attached as exhibits. They all

note the location of the accident as “9353 Island Road, Ventress, LA,” the location

of CampNations, LLC.

Bridges’ statement revealed that she witnessed the accident. She said that

she was standing at the end of the CampNations’ pier (that was a few feet off of

the water) and that Adikema jumped off the second story of the neighboring pier,

almost drowning, but was pulled out of the water by Houston who was waiting in a

jet ski with a life preserver. She said that before anyone could tell Kyris not to, he

jumped off of the second story of the pier. Houston attempted to rescue him but

Kyris was fighting him off because he was panicked.

Houston’s statement indicated that he had jumped off of the second story of

the neighbor’s pier. He was waiting in the water with a jet ski and life preserver

when Adikema jumped. He had to pull Adikema out of the water. Kyris then

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jumped, and Houston tried to rescue him, but Kyris was panicking and kept pulling

him under the water. Houston feared he would drown also because Kyris would

not let go of him, and he finally had to push him off so that he could get out of the

water.

Adikema’s recorded statement indicated that he and Kyris were best friends

and had known each other since they were twelve years old. Adikema stated that

he and Kyris jumped from the second story of the neighbor’s pier. He said that

although he was initially scared to jump off of the pier, five or six people had

already jumped, so he changed his mind. Adikema jumped off of the second story

of the neighbor’s pier immediately prior to Kyris’s jump off of the pier. Adikema

admittedly could not swim very well and was rescued by Houston, who also

attempted to rescue Kyris.

He knew he could not swim well and “almost drowned,” but he remembered

to remain calm while Houston rescued him. Adikema said that he got out of the

water and was going in to change his clothes when Kyris jumped. He said Kyris

panicked and was “fighting and kicking the whole way” while Houston attempted

to rescue him. Adikema said that Kyris could not swim at all but that he could

swim a little bit.

Wright’s recorded statement indicated that he did not see Kyris jump, but he

witnessed the struggle in the river when Houston attempted to rescue Kyris. He

said that prior to the accident they were talking about jumping off of the neighbor’s

two-story pier. Wright was nervous about the jump because Kyris did not seem

comfortable so he manned a jet ski in the river in case help was needed.

James Palmer, another party attendee, stated that he saw Kyris, Houston, and

Adikema walk onto the neighboring property and go up to the second story of the

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pier, although he was inside at the CampNation’s address when Kyris actually

jumped. He did see Houston jump. Palmer felt that Houston was pressuring

Adikema and Kyris to jump.

The Pointe Coupee Parish Coroner’s Office issued a certificate of death that

described how the accident occurred as an “accidental drowning.” The narrative of

events by the coroner’s office also corroborate the witnesses’ statements. The

Pointe Coupee Parish Sheriff’s Office report of witness statements taken the night

of the accident are the same as the witnesses’ statements to Major. The sheriff’s

office concluded that all the witnesses’ statements gave the same version of events

leading up to the drowning; that no foul play was indicated; and that the drowning

was ruled accidental. Also, the written statements made to the sheriff’s office by

the four eyewitnesses convey the same series of events.

In opposition to the motions for summary judgment, plaintiffs provided the

affidavit of Clyde McCoy, whom plaintiffs employed to investigate the accident.

McCoy concluded that it was unusual that Kyris would jump off the pier knowing

that he could not swim and that he was pressured to do so by his friends. He

determined that the event was the result of a dare and that it occurred at “9353

Island Road, Ventress, LA, at a property owned and operated by Mr. and Mrs.

James Nations[.]”

Affidavits of Michelle and Darnell Carter stated that authorities confirmed

that the drowning took place at “9353 Island Rd.” An affidavit of Darnell Carter

stated that Adikema told him, “He [Kyris] didn’t jump.” He said that he was never

informed that Kyris had jumped from the second story of the neighbor’s pier.

The various reports of the accident and ensuing investigation list the address

of the accident where the party was held, i.e., the CampNations property. This fact

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is insufficient to controvert that Kyris jumped from the second story of the

neighbor’s pier. The police and emergency responders arrived at the

CampNation’s address because that is where the 911 call was made and where all

of the witnesses were located. The listing of the CampNation’s address on the

various reports does not negate all of the evidence that Kyris jumped off of the

second-story of the neighbor’s pier. As a preliminary matter, the plaintiffs offered

no evidence to controvert the fact that Steak House Steaks and Nations did not own

the 9353 Island Road Property. Thus, regardless of the location of the pier from

which Kyris jumped, Steak House Steaks and Nations owned neither and

undoubtedly could not be attributed any premise liability fault.

Additionally, there is no genuine issue of fact that Kyris jumped off of the

neighboring two-story pier. Every witness stated that Kyris jumped off the second

story of the neighbor’s pier. Plaintiffs produced no evidence to the contrary.

Further, plaintiffs would be unable to prove that CampNations had custody or

garde of its neighbor’s pier. Even if we assumed that the accident occurred on the

property of one of the defendants, there simply was no duty by the defendants to

prevent a twenty-four year old man who knows that he cannot swim from

voluntarily jumping off a second-story pier. Further, plaintiffs could not suggest

that a duty arose due to the serving of alcohol at the party as they admit that no

alcohol was found in Kyris’ system.

Plaintiffs try desperately to point out inconsistencies in witness statements,

but there are none of significance. Whether Kyris had ingested a small amount of

alcohol is immaterial. The Coroner’s lab report found no alcohol in Kyris’ system.

Plaintiffs argue that the accident occurred at 9353 Island Road and claim that all of

the witnesses who testified that it occurred at the neighbor’s pier were incorrect.

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Plaintiffs further insinuate that a conspiracy amongst the witnesses occurred

because one of them purposely or accidentally pushed Kyris into the water. There

simply is no evidence to support these baseless accusations. Kyris accidentally

drowned after voluntarily jumping off the second story of the neighbor’s pier.

While extremely tragic, plaintiffs will be unable to prove that this unfortunate

accident was the fault of any of the defendants.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of the

defendants in 13-799, James Nations, Jr., Steak House Steaks, Inc., and Caitlin

Specialty Insurance Company, and 13-918, CampNations, LLC, and Louisiana

Capital Foods, LLC, is affirmed. All costs of this appeal are assessed against the

plaintiffs/appellants, Darnell and Michelle Carter.

AFFIRMED.

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