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Robertson v. State12/10/1999
ourt granted.
The purpose of summary judgment procedure is to pierce the pleadings and assess the proof to determine whether a trial is necessary. If there is no evidence upon which reasonable minds could differ, then trial would be a bootless exercise, fated for an inevitable result but at a continuing expense for the parties. Fontenot v. Upjohn, 780 F.2d 1190 (5th Cir. 1986). If there is, however, a genuine question concerning a material fact or the inference to be afforded that fact, summary judgment is not proper. " he judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, ___ (1986).
Prior to Trey's tragic accident and death, seven Tech students attempted to climb the Natatorium roof. These previous incidents and Trey's fall all had certain things in common. All accidents occurred around midnight and involved campus sanctioned consumption of alcoholic beverages. In the first incident, the campus police report states that the two students who were found scaling the roof at 11:38 p.m. appeared to be intoxicated and had just left a DKE beer bust at the Student Center. Students leaving the Student Center would normally walk past the Natatorium on their way back to their dormitory. Alcohol was allowed at the Student Center which remained opened until midnight. This pattern was repeated in the next incident in which four students were observed on the Natatorium roof at approximately 12:47 a.m. One student fell and suffered a compound fracture of his vertebrae. At this point, Robert Dowling, the Director of the Natatorium, stated that "informal" discussions took place about the problem between Dowling, his boss, the Director of Recreation, and the campus engineer. They concluded "that there was nothing that could be done . . ."
Thereafter, the pattern was repeated when another student fell at 11:15 p.m. and sustained a broken wrist and compressed and fractured vertebrae. Following this incident, Dowling testified that renewed discussions concluded that because the students were intoxicated "it (preventative action) was not something that they deemed necessary" and that there was "really no answer" to the problem. Therefore, nothing was done by Tech to attempt to prevent further incidents or accidents.
Even after Trey's death, Tech officials continued to believe that nothing needed to be done; however, according to Robert Dowling, a few months after Trey's death, the Office of Risk Management in Baton Rouge ordered Tech to build a fence around the Natatorium. Dowling conceded that there have been no reports of students attempting to climb the Natatorium's roof since the erection of this fence. His deposition was taken in November 1997. At that time, the fence had been up for more than five years.
Traditionally there are five elements that a plaintiff must establish to prove his negligence claim: cause-in-fact; duty; breach of duty; legal or proximate cause; and, actual damages. Roberts v. Benoit, 605 So.2d 1032 (La. 1991). This concept of negligence provides a common language to be used in the analytical process.
Louisiana enacted a comparative negligence statute which reduces a plaintiff's recovery by the degree of his own fault. The victim's own recklessness is an affirmative defense that must be shown by the defendant. We should be careful not to merge victim's fault into the elements of plaintiff's prima facie case of negligence. The existence of a duty should not be confused with either a breach of that duty o
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