MERTENS v. CAMPO CREATIONS, 11-299 (La.App. 3 Cir. 12/14/11)

MARK MERTENS, ET AL. v. CAMPO CREATIONS, LLC.

No. 11-299.Court of Appeal of Louisiana, Third Circuit.
December 14, 2011.

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COOKS, J., dissenting.

I respectfully dissent from the majority’s decision to reverse the trial court and assess all fault in this matter to the parents of the injured child. I believe the record clearly supports the trial court’s assignment of fault to Jump-N-Jive for the child’s injuries.

I find no error in the trial court’s specific finding that there was a failure to properly train and supervise the teenage staff that worked at the facility. It was established by Ms. Campo’s testimony that her staff’s training consisted of her reading to them the warning labels on the inflatables setting forth the minimum height, weight, and age restrictions. Despite any further training, Ms. Campo’s testimony still shows the staff was made aware of the restrictions as to who could use the inflatables. However, Ms. Campo testified she did not expect her staff to enforce these restrictions, stating “it is the parent’s responsibility.”

As to the sheet that is signed by the parents of the children who come to Jump-N-Jive, and was signed by Ms. Mertens, it was argued by Defendants that this so-called “Jump Waiver” absolves Jump-N-Jive from any potential liability. The trial court found the record did not support this argument. I agree. Ms. Mertens testified she believed the “Jump Waiver’ was simply a sign-in sheet. The testimony of the staff members revealed they routinely referred to the “Jump Waiver” as a sign-in sheet, and further could not state that they informed Ms.

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Mertens that this sheet was intended as a waiver of liability. When this testimony is coupled with the fact that the “Jump Waiver” did not provide any indication that there were specific height, weight, and age restrictions on the inflatables, I find the trial court did not err in ruling the “Jump Waiver” did not shield Jump-N-Jive from potential liability.

It is clear that a twenty-three month old child does not come even close to meeting the height, weight, and age requirements to use this particular inflatable where the accident occurred. The majority relies on this fact and hammers it as the nail that places all fault on the parents. I agree the parents do share fault in the occurrence of this unfortunate accident. However, just because the parents are at fault does not preclude Jump-N-Jive from also being found liable for the accident. The staff members who were working and present should certainly have observed that the twenty-three month old child should not have been using the inflatable in question. Ms. Campo’s testimony indicates her staff was aware of the restrictions on the inflatables, but were advised not to enforce those restrictions. I find this admitted instruction by Ms. Campo to be a business decision that was made at her own peril.

An owner of a business who permits the public to enter his establishment has a duty to exercise reasonable care to protect those who enter. Gayden v. George, 513 So.2d 515 (La.App. 2 Cir. 1987) Rodriguez v.New Orleans Public Service, Inc., 400 So.2d 884 (La. 1981). The law is clear that a person who undertakes the control and supervision of a child has the duty to use reasonable care to protect the child from injury. Such a person is not the insurer of the safety of the child, but is required to use reasonable care commensurate with the reasonably foreseeable risk of harm Gayden, 513 So.2d 515.

The majority cites the above case of Gayden, as support for reversing the trial court’s assessment of liability against Jump-N-Jive. I disagree, and find this

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case, if anything, supports the trial court’s decision in the present case. In Gayden, a McDonald’s restaurant hosted a birthday party and provided an employee who supervised the children on the playground for a period of time. After a period of time playing, the children attending the birthday party went inside the restaurant for food and ice cream. The employee then announced to the childre andparents that playtime was over and she would not be supervising the children on the playground anymore. The court found the jury clearly accepted this testimony of the employee as credible, and that this “factual finding was inherent in the jury’s conclusion” that there was no negligence on the part of McDonald’s. Moreover, the employee testified she specifically informed the parents they would be responsible to provide supervision of the children on the playground after the party. It was also testified that the restaurant had a sign posted in the playground area which required all children under the age of twelve to be accompanied by their parents. The testimony by the staff members in the present case clearly sets forth that Ms. Mertens was not told that it was her duty alone to supervise her children. The staff members provided by Jump-N-Jive, by their presence, had a duty to use reasonable care commensurate with the reasonably foreseeable risk of harm. That was not done in the present case, and the trial court did not err in finding Jump-N-Jive liable. I find the majority opinion, unlike the opinion in Gayden, fails to afford the trial court’s findings of fact the deference it is entitled to, and instead reevaluates the evidence to reach a different conclusion. I disagree and would maintain the apportionment of fault on Jump-N-Jive.