By Jeff Birren, Senior Writer
Helena Shear was a New Orleans Pelicans (nee Hornets) season ticket holder. While attending a game and sitting in her assigned seat, she was hit by a player chasing a loose ball. Shear was injured, and sued the visiting team, the player that collided with her, the State of Louisiana, through its Stadium and Exposition District, and the stadium management company SMG/Facility Management of Louisiana. The State moved for summary judgment. It was denied, as was the writ in the Court of Appeal. The State then went to the State Supreme Court. That Court ordered briefing, and without oral argument, reversed “the judgment of the district court” and granted “summary judgment in favor of the State” (Shear v. Trail Blazers, Inc. et al, Case No. 2021-CC-00873, Supreme Court ofLouisiana, at 5 (12-21-21)).
Facts
Shear became a season ticket holder in 2007. Her tickets were in the third row of the courtside seating. The back of the tickets stated, in relevant part, that “the holder of this ticket voluntarily assumes all risk and danger of personal injury (including death)” (Id. at 3). On February 13, 2013, she went to see the Pelicans and Portland Trailblazers play. During the game, Trail Blazer James Edward Hickson, Jr., “chased a loose ball into the seating area” and “collided with Ms. Shear.” Hickson was 6’9” and weighed 242 pounds, and Shear got the worst of it.
Shear sued in 2014, alleging that her seating was “in a dangerous and unsafe area” and that the State was negligent “in failing to erect ‘safety measures’ to prevent her injuries” (Id. at 3-4). After discovery, various defendants moved for summary judgment. Hickson’s motion was granted. The District Court found that Shear’s seating was “very close to the action of the game. Further the rules of the game permit the players to chase a loose basketball and injuries to a spectator may result but this does not create an unreasonable risk of harm. The record establishes that Ms. Shear was familiar with the rules of the game, as she was a season ticket holder for the then New Orleans Hornets since the 2007-2008 season. As such, it is reasonable to find that she was aware of the risk of a ball being chased into the spectator area thereby causing the exact injury she suffered” (Id., n. 2 at 3-4).
The State also moved for summary judgment, arguing that as a season ticket holder, Shear “was aware of the risk presented by her courtside seating and its proximity to the game” (Id. at 4). The State submitted an affidavit from a facilities management expert who stated: “the courtside seating was reasonable and commensurate with general industry standards.” Shear did not submit “any expert testimony in response to the State’s motion” but “relied on her own testimony for the proposition that she was unaware of the particular risk encountered.” Initially, at least, that worked.
The District Court determined that that it was “reasonable to infer” that Shear “was aware of the potential for players to come off the court in pursuit of a loose ball.” Moreover, “it is fair to deduce that any potential hazard of player collisions while sitting courtside is open and obvious.” Nevertheless, the court denied the motion “based on a finding that there were questions of fact concerning ‘whether the seating arrangement was safe to begin with.’”
The State sought “supervisory review of this judgment.” The Court of Appeal denied the writ and “the State then applied to this court.” The Supreme Court “ordered briefing from the parties.” The Court also “permitted the parties” “to request oral argument” and “entertained the State’s request.” However, after “careful consideration, we found oral argument was unnecessary under the facts of this case and therefore elected to exercise our discretion to consider the matter on written briefs only” (Id., n. 3).
The Court’s “Discussion”
The unanimous “PER CURIAM” discussion began with the summary judgment standard: “whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” The “burden of proof remains with the mover.” However, if “the moving party will not bear the burden of proof on the issue at trial and points out 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 that 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” (Id. at 5).
The Legal Test
A party suing a public entity (in Louisiana) “for damages caused by a thing” must “establish: (1) custody or ownership of the defective thing by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation.” Here, the “focus of the arguments is over the second element—namely, whether the seating configuration at the time of Ms. Shear’s injury created an unreasonable risk of harm.”
The State’s expert “opined” in his affidavit that the floor seating on the date of the accident was “reasonable and commensurate with general industry standards.” Furthermore, “no basketball courts of any type, at any level, employ physical barriers. He concluded that the lack of physical barriers between the court and spectators is normal and customary.” The Court found “this evidence is sufficient to satisfy the State’s burden … to establish an absence of factual support to satisfy” Shear’s claim. The burden therefore shifted to Shear “to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to summary judgment as a matter of law.”
Shear “presented no evidence which would support her theory that the seating configuration was unreasonably dangerous.” She submitted “certain photographs which purportedly showed physical barriers in the seating areas of college basket games” (Id. n. 4), but those photographs “were never authenticated and are inadmissible.” In the Supreme Court, Shear stated that the “photographs ‘were not exhibits per say’ (sic) but submitted to the trial court along with the website link to assist the Court in determining” if the statements submitted by the State and its expert were true or false. However, the photographs were not properly submitted as evidence and therefore the Court “cannot consider the photographs on appeal” (Id.). All that Shear had was her affidavit that stated she was unaware of the “particular risk she encountered” (Id. at 4).
There was thus no competent evidence “which would support her theory that the seating configuration was unreasonably dangerous” and therefore “summary judgment in favor of the State is mandated.” Consequently, the Court “must reverse the judgment of the district court and grant summary judgment in favor of the State” (Id. at 5), the Louisiana Stadium Exposition District and SMG. Those “defendants are dismissed with prejudice” (Id. at 6).
Conclusion
“[T]hose defendants” indicate that other defendants remain in the case. If so, then the Court’s opinion would also apply to them, and Shear may well be out of luck and out of court. It must have brought cheer to SMG, a company that operates stadiums and arenas cross the country.
Shear may believe that defendants were guilty of a loose ball foul, but to date the courts have ruled otherwise. The opinion raises the question of whether the result would be different if the plaintiff was a first-time spectator, not a season ticket holder. One of the inherent ironies is that seats closest to the basketball court are the most dangerous but also the most desired seats and command prices vastly higher than seats that are far safer, as Laker fans well know, and that is not going to change despite these types of cases. It is hard to imagine what steps could be taken to improve safety that did not interfere with fans’ ability to see the game, or what a plaintiff’s expert could say that might have changed the outcome of this motion.
Finally, young lawyers wishing to impress courts should ensure that when using legal terms, they get the spelling right, and submit competent evidence.
