Gross Negligence Standard Reinforced in Context of Mardi Gras Immunity Statute
Case: Citron v. Gentilly Carnival Club
Louisiana Fourth Circuit Court of Appeal
2014-1096 ( La. App. 4 Cir 04/15/15)
This case first requires a review of Louisiana’s Mardi Gras Immunity Statue, first enacted in 1979, Louisiana Revised Statute 9:2796. The statute was passed to control rising insurance costs for parading organizations. Over its life, the law has been expanded to include events other than Mardi Gras, and redrafted several times, and now has two parts: (1) broad immunity for krewes which sponsor parades, unless said loss or damage was caused by the deliberate and wanton act or gross negligence of the krewe or organization; and (2) codification of assumption of the risk, specifically that anyone who attends such a parade “[a]ssumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed or hurled by members...”
This litigation arose out of an accident in Baton Rouge, Louisiana, on February 21, 1998, at the Spanish Town Mardi Gras Parade which was sponsored by a non-profit organization, The Mystic Krewe for the Preservation of Lagniappe in Louisiana, Inc. (Mystic Krewe). According to plaintiffs' original petition, this was the first Mardi Gras parade ever attended by Tiffany Binkley. Tiffany's grandmother, Genie Massey, took seven-year-old Tiffany to the parade along with some other family members. They found a spot along the parade route near the intersection of North Third Street and North Boulevard. During the parade, a pickup truck (owned by Robin Toler and insured by State Farm Mutual Automobile Insurance Company) suddenly left the parade route after its driver, John E. Landry, momentarily lost consciousness. Mr. Landry drove into the crowd of spectators where plaintiffs were viewing the parade. Tiffany was seriously injured when she was run over by the pickup truck.
Plaintiffs filed suit for personal injury damages against Mr. Landry, Ms. Toler, State Farm, Mystic Krewe and its insurer, Essex Insurance Company (Essex), and the City of Baton Rouge (City). Plaintiffs later amended their petition to include an action against Mystic Krewe's insurance agent, McInnis, Tyner & Daniel, Inc. (McInnis Agency), for negligently failing to procure insurance covering injuries to spectators at the parade as requested by Mystic Krewe. The amended petition also included allegations of gross negligence on the part of Mr. Landry and Mystic Krewe. Plaintiffs alleged that Tiffany's injuries were caused by the gross negligence of Mystic Krewe in failing to supervise drivers and in allowing Mr. Landry to drive the pickup truck in the parade even though he had been drinking alcoholic beverages and suffered from an alleged medical condition which caused him to "black out." Essex was named as a defendant because it issued a "Spectator Liability" policy of insurance to Mystic Krewe. The City was named as a defendant for allegedly negligently issuing the parade permit to Mystic Krewe, negligently approving a dangerous parade route, and negligently failing to protect the public viewing the parade.
Essex and Mystic Krewe filed motions for summary judgment based upon the statutory immunity provided to Mardi Gras krewes in Louisiana Revised Statute 9:2796. Importantly, after the date of the accident, the Mardi Gras immunity statute was amended to create an additional exception to the grant of immunity for loss or damage caused when members of the krewe or organization were operating a motor vehicle within the parade. The Act also made clear that the deliberate and wanton acts or gross negligence of any member (not just the krewe or organization) were actionable.
The Court first determined the amended statute did not apply retroactively, such that the wording in effect at the time of the accident controlled. Thus, the only issue before the court was whether there existed any genuine issue of material fact regarding the gross negligence of Mystic Krewe.
The court then looked to how gross negligence has been defined under Louisiana law, noting gross negligence has been described as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” The court acknowledged there is often no clear distinction between such “conduct and “gross
negligence, and the two have tended to merge and take on the same meaning.” Gross negligence, therefore, has a well-defined legal meaning distinctly separate, and different, from ordinary negligence.
Using this standard, the court easily concluded Plaintiffs had failed to establish any facts supporting the allegations of gross negligence on the part of Mystic Krewe. The court reasoned, although Mr. Landry did apparently have some alcohol to drink before and during the parade, plaintiffs had made no showing that the Mystic Krewe organization displayed an “utter disregard” or an “entire absence of care” with respect to the spectators at the parade. The record showed that plaintiffs' damages were caused by the actions of Mr. Landry when he lost consciousness while driving in the parade. The record does not reveal any facts evidencing gross negligence on the part of Mr. Landry or the Mystic Krewe organization. According to the court, operating a vehicle after consuming an alcoholic beverage, as Mr. Landry did in the instant case, may constitute a negligent act. Likewise, the lack of closer supervision of drivers in the parade could be construed as negligence on the part of Mystic Krewe. However, the court found such actions taken, without more, would only amount to ordinary negligence rather than gross negligence.