Jazzline Pickney Indv and Obo Her Minor Son Rotrevious Pickney v. Jamie L. Richard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-615

JAZZLINE PICKNEY, INDIVIDUALLY, AND ON BEHALF OF HER
MINOR SON, ROTREVIOUS PICKNEY

VERSUS

JAMIE L. RICHARD D/B/A DUVAL STREET APARTMENT; JLR, LLC;
ABC PROPERTY MANAGEMENT COMPANY; DEF SECURITY
COMPANY; JOHN/JANE DOE 1; ABC INSURANCE COMPANY; TYRONE
SENEGAL; KENDARIOUS BREAUX; AND JOHN DOE 2 ON BEHALF OF
HIS MINOR SON, KENDALL RAY LEOPUAL

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20186038
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

**********

LEDRICKA J. THIERRY
JUDGE

**********

Court composed of Van H. Kyzar, Ledricka J. Thierry, and Guy E. Bradberry,
Judges.

AFFIRMED.

Jason M. Baer
Nicholas M. Anthony
Baer Law, LLC
3000 Kingman Street, Suite 200
Metairie, LA 70006
(504) 372-0111
COUNSEL FOR PLAINTIFFS/APPELLANTS
Jazzline Pickney, individually, and on behalf of her minor son,
Rotrevious Pickney

Roderick “Rico” Alvendia
Alvendia, Kelly & Demarest, LLC
909 Poydras Street, Suite 1625
New Orleans, LA 70112
(504) 200-0000
COUNSEL FOR PLAINTIFFS/APPELLANTS
Jazzline Pickney, individually, and on behalf of her minor son,
Rotrevious Pickney

Gregory J. Chiartano
Law Office of Gregory Chiartano
3801 Canal Street, Suite 211
New Orleans, LA 70119
COUNSEL FOR PLAINTIFFS/APPELLANTS
Jazzline Pickney, individually, and on behalf of her minor son,
Rotrevious Pickney

Anne Derbes Wittman
Matthew A. Woolf
Erin Pelleteri Howser
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
201 St. Charles Avenue, Suite 3600
New Orleans, LA 70170
(504) 566-5200
COUNSEL FOR DEFENDANTS/APPELLEES
JLR, LLC, Richaud Real Estate, LLC, and Annette Henderson

THIERRY, Judge.

Plaintiffs-Appellants, Jazzline Pickney, individually, and on behalf of her

minor son, Rotrevious Pickney, appeal the trial court’s grant of Defendants’ Motion

for Summary Judgment, dismissing Plaintiffs’ personal injury lawsuit. For the

reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On Friday, May 4, 2018, Plaintiff, Rotrevious Pickney, skipped school and

went to the Duval Street Apartment Complex, located at 201 Duval Street, in

Lafayette, Louisiana. According to Plaintiff, he was carrying a gun for “protection,”

although he claimed the gun was not loaded. It was alleged by Plaintiff that he went

with a friend, Qualen (Plaintiff stated in his deposition that he did not know Qualen’s

last name), who allegedly knew people who lived at the complex. Although he

denied he went to the apartment complex to play dice, he participated in a dice game

for several hours. Plaintiff never went into any apartment while there that day.

There were approximately twelve to fifteen people participating in the game,

and Plaintiff acknowledged several were in possession of guns. At some point,

Plaintiff was accused of stealing money during the game and a fight broke out

between Plaintiff and Kendarius Breaux. Plaintiff maintained he was not the

aggressor in this fight but only sought to defend himself from Breaux. Plaintiff did

acknowledge that he “got into it” with Breaux, perhaps intimating that it was more

than simply self-defense on his part. They were eventually separated by Kendall

Ray Leopaul, who was also playing in the game.

Following the fight, Plaintiff stepped away for a moment, but rather than

leaving, he came back to the game. A review of the video introduced at trial showed

that when Plaintiff returned towards the game, he and Breaux initially “squared off”

again but did not come to blows this time. According to Plaintiff, a man in a

wheelchair pointed a gun at him, and Plaintiff decided to leave at that point. The

video shows Plaintiff beginning to walk away from the game about twenty seconds

after “squaring off” with Breaux. As he is walking off, he turns several times to look

back towards the dice game. Breaux then fired a weapon at Plaintiff, who then began

running away. Several more shots were fired by Breaux, Leopaul, and Tyrone

Senegal. Plaintiff was struck several times. Tragically, he was rendered a paraplegic

as a result of his injuries. Police arrived on the scene approximately five minutes

after the shooting.

Breaux, Leopaul, and Senegal were all criminally charged as a result of the

shooting of Plaintiff. At the time of the shooting, only Senegal was a tenant in the

complex. In his deposition, Plaintiff stated he knew Breaux, who attended the same

high school as Plaintiff. Plaintiff also stated he “knew of” Senegal. It was unclear

from his deposition testimony if Plaintiff knew Leopaul.

Duval Street Apartment Complex was a sixteen-unit apartment complex

located at 201 Duval Street, Lafayette, LA. The complex was owned by JLR, LLC,

a Louisiana limited liability corporation. It was managed by Annette Henderson.

In 2015, a video surveillance system consisting of twelve cameras was

installed. The cameras were then replaced in 2017. When the cameras were

replaced, JLR gave the Lafayette Parish Police Department twenty-four-hour access

to monitor the surveillance system and executed a waiver that allowed the Lafayette

Parish Police Department to access the complex at any time. The surveillance

cameras were not monitored by Defendants in real time. Ms. Henderson testified in

her affidavit that although she advised of the presence of the surveillance system to

tenants or prospective tenants, she did not tell them that it was monitored twenty-

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four hours a day or monitored in real time. It was established on the date of the

shooting, the video surveillance system was operational (as there was a video of the

events leading to the incident).

It was established the following signs were posted on the Complex premises:

- Neighborhood Under 24-Hour Video Security With Local Law Enforcement.
We Report All Suspicious Persons and Activities;

- No Trespassing This Property Protected by Video Surveillance Trespassers
Will Be Prosecuted
On October 5, 2018, Jazzline Pickney, individually and on behalf of her minor

son, Rotrevious Pickney, filed suit against numerous defendants, including JLR,

LLC, a Louisiana limited liability corporation that owns/operates the Duval Street

Apartment Complex, Kendarius Breaux, Kendall Ray Leopaul, and Tyrone Senegal.

The petition for damages asserted general negligence and premises liability claims

against Defendants.

A First Amended Petition for Damages was filed on April 7, 2020, which

added Richaud Real Estate (operator of the complex), Annette Henderson (the

property manager), and Great Lakes Insurance SE (the insurer of JLR, LLC) as

additional Defendants. A Second Amended Petition was filed on July 15, 2020, to

assert additional allegations. A Third Amended Petition was filed on April 21, 2022,

to substitute Rotrevious Pickney for his mother as he had reached the age of majority.

Ms. Richaud filed an Exception of No Cause of Action, which was sustained

by the trial court. All remaining Defendants answered the petition. Plaintiffs

conceded they had no viable premises liability claim, and an order was issued

dismissing Plaintiffs’ claims pursuant to La.Civ.Code arts. 2317 and 2317.1.

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On September 16, 2022, Defendants, JLR, LLC; Richaud Real Estate, and

Annette Henderson filed a Motion for Summary Judgment to have Plaintiffs’ claims

against them dismissed. The trial court denied the motion finding a genuine issue of

material fact as to whether signage posted at the complex was sufficient to establish

the assumption of a duty of protection. The trial court, in oral reasons, stated as

follows:

First glance, to me, I’m like, well, this isn’t even close. How can
you hold – so first of all, Mr. Pickney doesn’t live at the complex. One
of the people in the dice game may have lived at the complex or was
there as an invitee. The other three people involved were not even
invitees, but showed up to play whatever you do with dice and money
in the parking lot. The case – so again, having said that, I read the briefs
and studied them and looked at them, and, to me, this is all about what
you put on your sign in the parking lot of the complex. So if you don’t
put anything in the parking lot, we’re probably not here today. Because
I don’t think that – well, I know the jurisprudence does not provide any
liability for an owner of a premise, for a third party action which takes
place in their premises short of knowledge of criminal activity in the
parking lot, prior – in this case, three years ago there was criminal
action, but there was no allegation that there was an ongoing incidences
of criminal activity which should have put this owner on notice of
having to put up fences, and police, or anything else. It’s about whether
or not what you put on that sign caused you to assume a greater
responsibility for, not only your invitees but the general public, who
came onto your property. Again, I’ve read the Pizza Hut case and the
other cases that passed down from those, and I think, for me, there
certainly are cases that talk about assuming responsibility by the actions
of an owner of a building and whether or not this is that type of case.
Gosh, its close.
....
The sign says exactly this: Neighborhood under 24-hour video security
with local law enforcement. We report all suspicious persons and
activities. . . . If you would have just put the no trespassing sign, we’re
not here today.
....
And for me, if – it is a factual question for me, and that’s where I think
the issue – if it were just a legal question, I would say I’m in your
corner. But I don’t think it is because somebody, the jury or somebody,

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is going to have to decide what you meant. So what if you were – you
were doing a 24-hour surveillance and had it – this card game was
ongoing, as I read it, for hours. And so ongoing with people who don’t
belong in your parking lot. And, again, are we supposed to protect
people against their own actions, I don’t know.
....
I don’t think the legal question that comes to me is the assumption and
I think your client has assumed that risk by posting the sign in the
manner in which it was. The jury is going to have to decide whether or
not there was a time lapse that could have prevented it, not prevented
it, and all those things. Is this a really really close case to being – yeah.
But its still something that I think the fact finder is going to have to
decide.
Defendants applied for writs with this court, which were denied on May 26,

2023, stating: “We find no error in the trial court’s ruling.”

On June 21, 2024, Defendants again filed a Motion for Summary Judgment,

noting the recently issued Louisiana Supreme Court opinion in Evans v. Abubaker,

23-955 (La. 5/10/24), 384 So.3d 853. Defendants also introduced the deposition

testimony of Rotrevious Pickney, wherein he stated he never saw any of the signs

posted at the apartment complex, and introduced screenshots from the surveillance

video. After a hearing on the motion on July 22, 2024, the trial court granted the

summary judgment in Defendants’ favor, finding the Evans case mandated the

granting of summary judgment. The trial court reasoned as follows:

I struggle now with the concept, particularly, with the new Supreme
Court case, in Evans, as to whether or not a business owner owes a
responsibility to someone who comes upon their premise and, as a
result of their conduct, is injured. And I think this clearly -- for me
Evans, clearly, sets forth a scenario where someone, who is not a renter,
who is not invited by the renter, who comes onto the premises and
engages in conduct that causes his injury, whether that’s criminal
conduct – I think criminal is only one of the adjectives used in the Evans
decision, its only one of those, and so, for me, I struggle now combining
that decision with what occurred in this case. And, secondarily, as I
thought early this morning, what if it was an obligation once you say
we have 24-hour surveillance, does that mean its real-time to the police
department? At what time was the assumption of the risk by the

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defendants to call law enforcement to send security over or whatever
else. Do you do that because 20 African-American – I think they were
all males but – were on a premise? Does that prototype a type of
individual who gets the police called on them? I mean, when does it
meet – when does it make that assumption happen? Does it happen
when the first fight happens that ends up dispersing and them
continuing to play? Do you lose that responsibility when Mr. Pickney
leaves the premise and then he returns? Do you call when they return?
Again I say all these things because it causes me a concern for
having said did they assume the risk by putting this out there. What
could they have done and what would the trier of fact be in a position
to decide in this case as to whether that assumed risk was one that could
have even prevented the injury in the first place?
....
Okay. So I find that this plaintiff was not owed the duty, as per
Evans, and if that duty had been present, I do not believe that – if he
was the party who should have been entitled to that duty, which I don’t
believe he is under Evans based on that scenario, I do not believe a trier
of fact could find that the time in which it could have been called in was
reasonable in order to prevent the injury which occurred. For these
reasons, I grant the motion for summary judgment.

Plaintiffs appeal the trial court’s grant of summary judgment, asserting as its lone

assignment of error that the trial court “erred in granting the motion for summary

judgment.”

ANALYSIS

The supreme court in Evans, 384 So.3d at 856–57, 857–58 (alterations in

original) (footnote omitted), set out the applicable appellate standard of review on

motions for summary judgments:

This court applies a de novo standard of review in considering
lower court rulings on summary judgment motions. Bolden v. Tisdale,
21-00224, pp. 10-11 (La. 1/28/22), 347 So.3d 697, 706-07; Bufkin v.
Felipe’s Louisiana, LLC, 14-0288, p. 3 (La. 10/15/14), 171 So.3d 851,
854; Catahoula Parish School Board v. Louisiana Machinery
Rentals, LLC, 12-2504, p. 8 (La. 10/15/13), 124 So.3d 1065. 1071.
Thus, we use the same criteria that govern the district court's
consideration of whether summary judgment is appropriate. Id.
Pursuant to La.C.C.P. art. 966(A)(3)-(4), a court must grant a motion
for summary judgment if the pleadings, memoranda, affidavits,

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depositions, answers to interrogatories, certified medical records,
certified copies of public documents or public records, certified copies
of insurance policies, authentic acts, private acts duly acknowledged,
promissory notes and assignments thereof, written stipulations, and
admissions show that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law. Id. The
summary judgment procedure is designed to secure the just, speedy,
and inexpensive determination of every action, except those disallowed
by Article 969; the procedure is favored and shall be construed to
accomplish these ends. La. C.C.P. art. 966(A)(2).
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. La. C.C.P. art.
966(D)(1). 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. Id. “When a motion for summary judgment is made and
supported as provided [in La. C.C.P. art. 967(A) ], an adverse party may
not rest on the mere allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided [in La. C.C.P. art.
967(A)], must set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judgment, if
appropriate, shall be rendered against him.” La. C.C.P. art. 967(B). A
motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine
issue as to material fact and that the mover is entitled to judgment as a
matter of law. La. C.C.P. art. 966(A)(3).
Plaintiffs maintain Defendants, although perhaps not owing a general duty, in

this case “assumed a duty to provide security for their tenants and guests through its

own purposeful actions due to concern of known criminal activity.” Plaintiffs also

maintain Defendants “owed a duty because the violence endured by Plaintiff was

clearly imminent and foreseeable, serious, and more than a mere possibility.” Either

of these principals, Plaintiffs suggest, is sufficient to warrant reversal of the grant of

summary judgment.

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Plaintiffs argue Defendants undertook intentional, affirmative steps to provide

twenty-four-hour, real-time surveillance in 2015, arguably in response to a violent

crime that occurred onsite. Signage was then placed throughout the complex stating

that the premises were monitored and “protected” twenty-four hours per day through

that surveillance. Plaintiffs also assert Defendants executed a waiver that allowed

local law enforcement to access the complex at any time, presumably due to its

heightened concern over criminal activity.

Plaintiffs maintain whether Defendants had a legal duty to undertake these

security measures is not at issue; but once Defendants chose to undertake these

measures, they assumed a duty, a duty that they failed to uphold with reasonable

care as to Rotrevious Pickney. Plaintiffs believe whether there was an assumption

of a duty is a question of fact, and thus summary judgment was inappropriate, as

there were genuine issues as to whether Defendants assumed a duty to protect those

on their property.

Whether liability exists under a particular set of facts is determined by using

the duty-risk analysis. Posecai v. Wal-Mart Stores, Inc., 99-1222 (La. 11/30/99),

752 So.2d 762. Under a duty-risk analysis, a plaintiff must prove (1) he was owed

a duty; (2) that duty was breached; (3) the defendant’s conduct was a cause-in-fact

of the injuries; (4) the defendant’s conduct was a legal cause of the injuries; and (5)

the plaintiff suffered actual damages. Jones v. Centerpoint Energy Entex, 11-02

(La.App. 3 Cir. 5/25/11), 66 So.3d 539, writ denied, 11-1964 (La. 11/14/11), 75

So.3d 946. If the plaintiff fails to prove any one element, the defendant is not liable.

Id. Here, the trial court found Plaintiffs did not establish there was a duty under the

facts of this case.

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Plaintiffs argue the signs created an express or implied assumption of a duty

on Defendants’ part. A plain reading of the signs shows that the property is under

twenty-four-hour “video security” and that local law enforcement has access to the

video surveillance. A reading that the camera feeds were being monitored in real

time, twenty-four-hours a day is beyond the plain language of the signs. Defendants

note that Plaintiffs have provided no evidence, be it from a tenant, invitee or expert,

that the sign at issue represented that the video surveillance was being monitored in

real time. Moreover, Plaintiff specifically testified that he never saw, let alone read,

any of the signs posted at the complex. Thus, it is clear he did not rely upon any of

that language to assume there was a duty to protect him. We have found no cases

where it has been held a duty exists to protect against the criminal activity of third

persons where the person claiming to be owed a duty was unaware of any assumed

duty. For there to be an express or imposed assumption of a duty, it must be received

and relied upon by the person asserting the duty.

Plaintiffs cite Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364

(La.1984), and Posecai, 752 So.2d 762, as support that “landlords must protect

victims from third-party criminal actions (1) when the landlord voluntarily assumes

the duty to do so or (2) when the third-party criminal actions are foreseeable.”

Harris involved facts where three armed robbers entered Pizza Hut and injured two

patrons and killed another. The supreme court found Pizza Hut assumed a duty it

would not otherwise have had when it hired off-duty police officers to provide

security for the Pizza Hut premises. When the officer on duty on the evening in

question was negligent in the performance of his duties, resulting in the shooting of

several patrons by would-be robbers, the supreme court held that Pizza Hut assumed

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the duty to provide security for its customers and was liable for damages caused by

the breach of this assumed duty.

In Posecai, the plaintiff sued Wal-Mart Stores, Inc., after being robbed in the

parking lot of Sam’s Wholesale Club in Kenner, Louisiana. The supreme court in

Posecai found that, during the prior six years, the parking lot had been the scene of

three predatory offenses and that the area surrounding the store was considered “a

high crime area.” This, however, was not enough for the supreme court to find that

defendant had a duty to post security guards in the parking lot.

Initially, we note the principle enunciated in Harris, regarding a business

owner assuming a duty to provide security, was clarified by the Louisiana Supreme

Court in Posecai, 752 So.2d at FN7, where the supreme court reasoned:

We reject the court of appeals’ [sic] finding that Sam’s assumed
a duty to protect its patrons from crime when it hired a security officer
to guard its cash office. This finding relies on an erroneous
interpretation of our decision in Harris v. Pizza Hut of Louisiana, Inc.,
455 So.2d 1364 (La.1984). Pizza Hut does not stand for the proposition
that a business assumes the duty to protect its customers from the
criminal acts of third persons merely because it undertakes some
security measures. Rather, Pizza Hut was an ordinary negligence case,
holding that a security guard employed by a business must exercise
reasonable care for the safety of the business’ patrons and breaches that
duty when his actions cause an escalation in the risk of harm. In Pizza
Hut, the restaurant’s security guard was negligent because he
heightened the risk of harm to Pizza Hut’s customers by provoking
gunfire from armed robbers who had entered the restaurant.

In Posecai, the supreme court established a duty on business owners “to

implement reasonable measures to protect their patrons from criminal acts when

those acts are foreseeable.” Id. at 766. Clearly, the duty in Posecai is intended to

protect patrons conducting business on the premises. Pizza Hut and Posecai do not

stand for the proposition that a business assumes the duty to protect its customers

from the criminal acts of third persons merely because it undertakes some security

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measures. And again, the argument that Defendants here assumed a greater duty to

protect is even weaker than in Pizza Hut and Posecai, because the owner of an

apartment complex, unlike the owner of a business, does not invite the general public

onto its premises.

Plaintiffs also rely on Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville,

615 So.2d 318 (La.1993), which is a case that involves a lessor/landlord. In Potter,

the plaintiff, a tenant, was raped in the poorly lit parking lot of her apartment

complex. In that case, the supreme court discussed whether the defendant/landlord

assumed a duty of security to the plaintiff/tenant. The plaintiff therein testified,

without contradiction, that she had complained about the poor lighting in the parking

lot (knowing that others before her had also complained). She was assured that more

lights, and more powerful lights, would be placed in the parking lot. In reversing

the grant of summary judgment in favor of the lessor/landlord, the supreme court

reasoned:

Potter’s deposition indicates she spoke to Coussins [the landlord]
once or twice about the lighting being so inadequate that at night she
could not differentiate between her automobile and someone else’s
vehicle. Weeks prior to the attack, Coussins assured her the exterior
lights were, “being taken care of. And . . . Kim had arranged to have
more powerful lights and more number of lights put out.” Since
Potter’s alleged lease is an oral one, Coussins’ assurances could have
modified the terms of the contract of lease, creating an express or
implied contractual duty to maintain adequate lighting in the parking
area.

Id. at 326 (emphasis added).

In support of its finding that the lessor/landlord’s assurances in Potter

“create[ed] an express or implied contractual duty,” the supreme court cited to this

court’s opinion in Thompson v. Cane Garden Apts., 442 So.2d 1296 (La.App. 3

Cir.1983). In that case, this court held where the lessor expressly warranted that a

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security guard was on duty and the lease contract provided lessor would maintain

the premises in a decent and safe condition, yet as a result of the breach of the

obligation an intruder gained access to plaintiff lessees’ apartment, assaulting them,

the plaintiff stated causes of action in contract and tort.

Clearly, Potter is factually distinguishable from the present case. In Potter,

the plaintiff was a tenant, not a random visitor to the complex. Moreover, the

plaintiff was specifically provided assurances from the landlord about security

measures, which the court found was an implied assumption of a duty. However,

any duty assumed in Potter surely would not be extended to someone who was not

a tenant or even an invitee and did not rely on any assurances made. Thus, it does

not support Plaintiffs’ argument under the particular facts of this case.1

Plaintiffs also cite the appellate court opinion in Campbell v. Orient-Express

Hotels Louisiana, Inc., 23-731 (La.App. 4 Cir. 4/25/24), ___ So.3d ___. In that case,

a guest at the Windsor Court Hotel in New Orleans, was robbed in the hotel’s

courtyard entrance. Surveillance videos showed a car enter the courtyard. The guest

entered the courtyard and initially walked toward the hotel entrance but turned

around and walked to the car. A few seconds after he reached the car, the guest

pulled a “substantial amount of cash” from his pocket and appeared to show the cash

to the car’s occupants. He put the cash back into his pocket and leaned towards the

1
We also note the court in Salafian v. Gabriel, 13-1399, p. 3 (La.App. 4 Cir. 7/16/14),
146 So.3d 753, 756, addressed the duty of a landlord to a tenant, stating:

As to the duty owed by a landlord to a tenant, this court has previously held that
unless there is some special relationship between the landlord and tenant, or where
the landlord has assumed an implied or expressed obligation to the tenant and
breached that duty, the landlord/lessor has no duty to protect his tenant from harm
sustained as a result of acts of third persons. Cornelius v. Housing Authority of
New Orleans, 539 So.2d 1250 (La.App. 4 Cir.1989). See also, Terrell v. Wallace,
98-2595, (La.App. 1 Cir. 12/28/99), 747 So.2d 748.

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car, where he appeared to engage in conversation with the occupants. He then

retrieved the cash from his pocket again. Within two seconds, the car began to drive

away, dragging the guest with it. He filed suit against the Windsor Court, asserting

claims of negligence and strict liability. In 2022, the defendants moved for summary

judgment, which the district court granted. The district court concluded plaintiff

“failed to meet his burden of proving that there was a legal duty to protect him

against this specific criminal act.” The fourth circuit reversed, finding “there were

genuine issues of material fact regarding whether this particular incident was

foreseeable, thus, imposing a duty of protection on Windsor Court.”

However, between the filing of briefs in this case and oral argument, the

Louisiana Supreme Court reversed the appellate court’s decision and reinstated the

trial court’s grant of summary judgment. Campbell v. Orient-Express Hotels

Louisiana, Inc., 24-840 (La. 3/21/25), ___ So.3d ___. The supreme court did hold

as a matter of law, the Windsor Court owed a duty to take reasonable precautions to

protect its guests from the criminal activity of third parties, i.e., to provide a

reasonably safe environment free of criminal activity. In so finding, the court noted

the Posecai court merged the concept of duty and scope of duty into a single

consideration in discussing foreseeability. It found the issue of foreseeability in this

case was a factor more properly considered in determining whether the risk was

within the scope of a duty owed. The court noted that the guest’s own actions placed

him in grave peril. It found there was no ease of association between the hotel’s

duty and the risk a guest would voluntarily approach an unknown vehicle and twice

display a sizeable amount of money to its occupants, who were unknown to the

guest. Plaintiff’s own actions, and not any inaction by the hotel, gave rise to the

incident. Because the scope-of-duty element was missing, the court did not need to

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consider the remaining duty-risk elements. Defendants were entitled to summary

judgment.

Thus, we find Campbell, as decided by the supreme court, is actually

supportive of the trial court’s grant of summary judgment in this case. Similarly, as

in Campbell, there is no question that Plaintiff’s own criminal actions placed him in

grave peril. Thus, it was Plaintiff’s actions, and not any inaction by Defendants

herein, that gave rise to the incident.

Lastly, as noted, the trial court found the recent supreme court case of Evans,

384 So.3d 853, mandated the granting of summary judgment under the facts of this

case. In Evans, a verbal altercation occurred in the parking lot of a convenience

store between two men. It was undisputed that the decedent, Wiley, first struck

Daniels in the face. Daniels then shot and killed Wiley. A wrongful death lawsuit

was filed, naming as one defendant, Abubaker, the store owner. Abubaker filed a

motion for summary judgment seeking dismissal of the action on the grounds it had

no duty to protect against the criminal actions of the decedent and other third parties

on its premises. The petition alleged a duty was imposed on the store owner to

provide heightened security measures on its premises to deter criminal activity. The

petition further alleged this duty was breached by the failure to implement

appropriate security measures, such as hiring a security guard to patrol its premises.

The trial court denied the motion for summary judgment, finding questions of fact

remained. The appellate court denied the writ application. The Louisiana Supreme

Court granted the writ of certioari and reversed, granting the motion for summary

judgment.

In its analysis, the supreme court noted when Wiley entered into an argument

with Daniels, he was not acting as a store patron but acting on his own behalf on a

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personal matter. Furthermore, when Wiley struck Daniels in the face with his hand,

he was committing the crime of battery. The Evans court concluded as follows:

Our jurisprudence has exonerated business owners from
negligence liability in circumstances when a former business patron
intentionally chooses to engage another person in a verbal altercation,
which escalates to physical violence and results in personal injury,
outside of the business premises (in a parking lot or adjoining public
area), on the basis that a business is unable to prevent the voluntary
criminal actions of former patrons when they have no specific warning
of impending criminal behavior. See Albritton v. Woods, 34,073, pp.
9-10 (La.App. 2 Cir. 9/28/01), 795 So.2d 1239, 1244. Further, when a
former business patron chooses to escalate his or her verbal altercation
with another person outside of the business premises, by engaging in
non-consensual physical contact, he or she becomes an aggressor and
may be found completely responsible for any injuries incurred,
including when the other person responds in self-defense. See e.g.
Seymour v. House of Blues New Orleans Restaurant Corp., 20-
0297, pp. 10-11 (La.App. 4 Cir. 11/25/20), 309 So.3d 805, 813, writ
denied, 20-01441 (La. 2/9/21), 310 So.3d 181; Broussard v. Gallo, 12-
0239, p. 5 (La.App. 1 Cir. 11/2/12), 2012 WL 5385594 (unpublished);
Landry v. Bellanger, 02-1443, p. 16 (La. 5/20/03), 851 So.2d 943,
955.
In the instant case, Mr. Wiley intentionally engaged in non-
consensual physical contact against Mr. Daniels when he struck Mr.
Daniels in the face, committing the crime of battery, and no evidence
was submitted in opposition to Abubaker’s motion for summary
judgment to suggest that such behavior was imminent and/or
foreseeable. Therefore, under the particular facts and circumstances of
this case, Abubaker had no duty to protect Mr. Wiley against the
consequences of his own intentionally criminal actions.
Since Abubaker had no duty to this particular person under these
circumstances, an essential element (the duty element) of the plaintiff’s
negligence action was lacking; therefore, Abubaker’s motion for
summary judgment should have been granted without regard to whether
the defendant conformed its conduct to the applicable standard of care.
Id. at 859–60.

Plaintiffs attempt to distinguish Evans by arguing Plaintiff herein did not

initiate the fight, thus, was not involved in any criminal acts on his part as the victim

was in Evans. This argument ignores the clear evidence of Plaintiff’s active

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involvement in the altercations and the fact he was in possession of a firearm.

Plaintiffs also argue that the shooting was “imminent and foreseeable” due to the

fact that guns were clearly present as evidenced by the video. This argument fails

for two reasons. First, Evans noted foreseeability did not need to be addressed until

the presence of a duty was established. Second, if Plaintiffs are correct that it was

foreseeable that a shooting was imminent when the first gun appeared and/or the first

fight occurred, Plaintiff was clearly reckless in not removing himself from the

combustible situation.

In Albritton v. Woods, 34,073, p. 9 (La. App. 2 Cir. 9/28/01), 795 So.2d 1239,

1244, the court found the defendant/bar owner’s duty “did not extend to protecting

Albritton from the consequences of his own decision to continue the encounter with

Woods after the dispute appeared to be over.” Thus, even if a duty was assumed in

this case, under Albritton, that duty would not extend to Plaintiff here due to his

decision to remain in such an obviously dangerous scene.

In this case, the undisputed facts indicate the Defendants did not assume a

duty to protect this particular Plaintiff under the facts of this case. There was no

relationship between Defendants and Plaintiff (no store/patron relationship or

tenant/landlord relationship). Evans, 384 So.3d 853, makes it clear that even a

person who is normally entitled to protection (i.e., a patron or a tenant) can lose that

protection when he engages in reckless conduct. Therefore, as the court found in

Evans, under the particular facts and circumstances of this case, Defendants herein

had no duty to protect Plaintiff against the consequences of his own intentionally

criminal actions.

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DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed against Plaintiffs-Appellants.

AFFIRMED.

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