RHONDA JOHNSON MCALPINE v. LIVE NATION CONCERTS LTD AND BROADSPIRE SERVICES INC (2026)

In this negligence action, Plaintiff-Appellant, Rhonda Johnson-McAlpine (“Plaintiff”), seeks review of the district court's April 8, 2025 judgment granting summary judgment in favor of Defendant-Appellee, Live Nation Worldwide, Inc. (“Live Nation”), and the June 2, 2025 judgment denying her motion for new trial. For the reasons that follow, we affirm both judgments of the district court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This litigation arises from a personal injury incident at The Fillmore Theatre in New Orleans on September 1, 2019. Plaintiff was attending a George Clinton concert at the venue, which was operated by Live Nation. During the performance, Plaintiff stood up to applaud the artist and leaned against a portable partition used to separate VIP and general admissions areas. The partition allegedly gave way, causing her to slip and twist her body.

Following the fall, Plaintiff and her husband immediately departed the venue. She sought emergency medical treatment on September 13, 2019, and reported the incident to Live Nation on September 17, 2019, sixteen days after the occurrence. Live Nation maintains that the delayed report prevented a contemporaneous investigation. The record contains no accident reports, witness statements, photographs, or video footage generated at the time of the event. Plaintiff alleges that as a result of the incident she sustained orthopedic injuries to her right shoulder and knee. On December 10, 2019, she underwent shoulder surgery to repair a tear, followed by knee injections and a rehabilitative program initiated on December 24, 2019.

Plaintiff filed her petition for damages on August 30, 2020. The ensuing discovery process was protracted and marked by issues concerning the service of discovery requests, the adequacy of Plaintiff's discovery responses, and the Plaintiff's noncompliance with court orders. Live Nation propounded its first set of discovery requests on July 22, 2021. Over the next several years, Live Nation scheduled at least three Rule 10.1 discovery conferences to address outstanding responses, none of which Plaintiff's counsel attended. On May 18, 2022, Live Nation filed its first motion to compel, which was initially denied for failure to comply with the local rules, but was renewed on July 5, 2022.

Thereafter, Live Nation filed multiple motions to compel. By June 30, 2023, a hearing was held on Live Nation's fourth motion to compel. Plaintiff's counsel failed to attend the hearing. The district court granted Live Nation's motion to compel and ordered Plaintiff to produce responses and pay filing fees by July 26, 2023. When Plaintiff failed to comply, Live Nation filed a motion to dismiss in October 2023, based on Plaintiff's failure to participate in discovery. Plaintiff subsequently provided responses to Live Nation's discovery requests in November 2023, and the district court denied Live Nation's motion to dismiss.

Following a fifth motion to compel filed in January 2024, the district court ordered Plaintiff to pay $1,115.00 in costs and attorney fees and set a final, 15-day deadline to provide Live Nation with discovery responses. Discovery closed on August 31, 2024, after which Live Nation filed a motion for summary judgment on December 16, 2024.

In moving for summary judgment, Live Nation argued that Plaintiff had submitted no evidence to support the essential elements of her negligence claim and separately raised evidentiary objections to the exhibits submitted in Plaintiff's opposition. At the April 8, 2025 hearing, the district court addressed Live Nation's evidentiary objections and excluded Plaintiff's unnotarized affidavit and Plaintiff's email communications with Live Nation's third-party claims administrator as inadmissible under La. C.C.P. art. 966. In response to Live Nation's argument that no competent evidence remained to defeat summary judgment, Plaintiff argued, in the alternative, that summary judgment was premature because additional discovery was needed, contending that Live Nation's responses to interrogatories were inadequate. The district court rejected this argument, noting that Plaintiff had taken no procedural steps, such as filing a motion to compel, to remedy the discovery gap in the five years the action remained pending.¹

Finding that Plaintiff failed to produce competent summary judgment evidence sufficient to establish a genuine issue of material fact, the district court granted summary judgment in favor of Live Nation. Plaintiff subsequently filed a motion for new trial, arguing that the failure to notarize her affidavit was a “clerical error.” The district court denied the motion on June 2, 2025, stating that a filing mistake does not constitute “good grounds” for a new trial. Plaintiff filed this timely appeal seeking review of both judgments.

STANDARD OF REVIEW

Appellate courts review a grant of summary judgment de novo, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Chalmette Dental Assocs., LLC v. Mzadehdds LLC, 20-0328, p. 3 (La. App. 4 Cir. 3/3/21), 314 So.3d 884, 886. The denial of a motion for a new trial is reviewed under the abuse of discretion standard. Lepree v. Dorsey, 22-0853, p. 22 (La. App. 4 Cir. 8/11/23), 370 So.3d 1191, 1205 (citation omitted).

ASSIGNMENTS OF ERROR

Plaintiff assigns the following errors: (1) the district court erred in granting summary judgment despite alleged factual disputes regarding the partition's unreasonably dangerous condition; (2) the district court abused its discretion in denying a new trial for a clerical filing mistake; and (3) the district court misapplied the standards of La. C.C.P. art. 966.

Plaintiff's first and third assignments of error both concern the district court's grant of summary judgment. In her first assignment of error, Plaintiff argues that genuine issues of material fact remained as to the stability of the partition, Live Nation's creation of the alleged condition, and Live Nation's notice. In her third assignment, Plaintiff argues that the district court misapplied La. C.C.P. art. 966 by excluding her opposition evidence and by concluding that she failed to carry her burden once Live Nation pointed out the absence of factual support for essential elements of her claim.

Because the Article 966 evidentiary ruling determines what evidence was properly before the district court, we address Plaintiff's first and third assigned errors together. We first set forth the applicable duty/risk analysis framework. We then consider whether the district court properly excluded Plaintiff's affidavit and email communications. We next consider whether Plaintiff produced factual support sufficient to create a genuine issue of material fact as to breach, which in this premises liability context is analyzed through the unreasonable-risk inquiry. Plaintiff's failure to produce factual support that the partition presented an unreasonable risk of harm is independently dispositive under La. R.S. 9:2800.6(B)(1), assuming La. R.S. 9:2800.6 applies. We therefore pretermit the remaining statutory issues of creation, actual notice, constructive notice, and reasonable care. We address Plaintiff's second assigned error separately in connection with Plaintiff's motion for new trial.

DISCUSSION

I. Assignments of Error Nos. 1 and 3: Summary Judgment and Article 966

A. Duty/Risk Framework, Merchant Liability, and the Campbell/Farrell Methodology

Louisiana Civil Code article 2315 provides that “[e]very act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.” La. C.C. art. 2315. Courts analyze claims arising under this article through the duty/risk analysis, which provides the framework for determining whether a defendant's conduct gives rise to liability in negligence. Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627, 632-33. Whether a claim is framed in ordinary negligence or premises liability, courts employ the duty/risk analysis. Farrell v. Circle K Stores, Inc., 22-00849, p. 5 (La. 3/17/23), 359 So.3d 467, 473.

Under the duty/risk analysis, a plaintiff must prove five separate elements to establish liability: (1) the defendant had a duty to conform its conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope-of-duty element); and (5) actual damages (the damages element). Malta v. Herbert S. Hiller Corp., 21-00209, p. 11 (La. 10/10/21), 333 So.3d 384, 395; Campbell v. Orient-Express Hotels La., Inc., 24-00840, p. 8 (La. 3/21/25), 403 So.3d 573, 580-81. The failure to prove any one element defeats the claim. Campbell, 24-00840, p. 8, 403 So.3d at 581.

In Campbell, the Louisiana Supreme Court emphasized that these elements must be analyzed separately. Id., 24-00840, p. 6, 403 So.3d at 580. The Court in Campbell granted certiorari specifically to correct the conflation of duty and scope of duty that had crept into negligence jurisprudence, observing that “the line between the distinct elements of duty and scope of duty is often blurred” in negligence cases. Id., 24-00840, p. 6, 403 So.3d at 579-80; see also Thomas C. Galligan, Jr., In Praise of the Louisiana Supreme Court: An Ode to Clarity and Consistency in Louisiana Negligence Cases, 72 Loyola L. Rev. 1 (2025) (discussing Campbell and the Louisiana Supreme Court's recent clarification of the duty/risk analysis and the importance of separately analyzing the elements of negligence). This Court is mindful of that instruction.

“Although there is no requirement that the[ ] elements [of the duty/risk analysis] be evaluated in any particular order, in any negligence action the threshold issue is whether the defendant owed the plaintiff a duty.” Campbell, 24-00840, p. 8, 403 So.3d at 581 (internal footnote omitted) (citing Pinsonneault v. Merchants & Farmers Bank & Tr. Co., 01-2217, p. 7 (La. 4/3/02), 816 So.2d 270, 276). Duty is a question of law. Id. “The inquiry is whether․any law (statutory, jurisprudential, or arising from general principles of fault) [supports] the claim that the defendant owed [the plaintiff] a duty” to conform its conduct to a particular standard. Farrell, 22-00849, p. 6, 359 So.3d at 473; Campbell, 24-00840, p. 9, 403 So.3d at 581. “[A]bsent a recognized duty, a defendant cannot be held liable and there is no need to inquire further.” Campbell, 24-00840, p. 8, 403 So.3d at 581 (citation omitted).

Scope of duty, also referred to as legal cause, is the fourth element of the duty/risk analysis. It asks whether the particular risk that materialized and the manner in which the plaintiff was harmed fall within the scope of protection the duty was designed to afford. Malta, 21-00209, pp. 17-18, 333 So.3d at 399. This “inquiry is fact sensitive and ultimately turns on a question of policy as to whether the particular risk falls within the scope of the duty.” Id. The scope of duty analysis considers foreseeability, ease of association, and “common sense, justice, and fairness.” Campbell, 24-00840, p. 28, 403 So.3d at 594 (Crain, J., concurring). There is no single rule governing the scope of duty determination. Id., 24-00840, p. 14, 403 So.3d at 584 (citing Roberts v. Benoit, 605 So.2d 1032, 1044 (La. 1991)). It is determined on a case-by-case basis. Id., 24-00840, p. 14, 403 So.3d at 585 (citation omitted). In that analysis, foreseeability and ease of association are relevant because the court considers whether the specific risk that arose is one readily associated with the defendant's obligation to exercise reasonable care. Id., 24-00840, p. 14, 403 So.3d at 584 (quoting Roberts, 605 So.2d at 1045). That is, whether the injury that actually occurred is a risk that one readily links to the conduct giving rise to the duty. Id. Although the scope inquiry is fact sensitive, the scope of duty question may be resolved on summary judgment where reasonable persons cannot disagree. Id., 24-00840, p. 28, 403 So.3d at 594-95 (Crain, J., concurring) (citing Farrell, 22-00849, p. 13, 359 So.3d at 478).

Breach is the second element of the duty/risk analysis and asks whether the defendant's conduct failed to conform to the appropriate standard. In the premises liability context, Farrell clarified that whether a condition presents an unreasonable risk of harm is analyzed under the breach element through the risk/utility balancing test. Farrell, 22-00849, p.6, 359 So.3d at 474. The question of unreasonable risk of harm is an issue of breach, not duty, and not scope of duty. Id., 22-00849, p. 9, 359 So.3d at 475-76. Although breach often presents a mixed question of law and fact, summary judgment may be proper where the nonmoving party lacks factual support for the breach element or where reasonable minds could only conclude that the complained of condition was not unreasonably dangerous. Id., 22-00849, p. 13, 359 So.3d at 478.

The risk/utility balancing test for breach considers four factors: “(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature.” Id., 22-00849, pp. 6-7, 359 So.3d at 474.

With this negligence framework in mind, we turn to its application.

As an initial matter, the parties have litigated Plaintiff's claim as a merchant liability action governed by La. R.S. 9:2800.6, and neither party disputes the statute's applicability. We therefore analyze the claim under that statutory framework. We note, however, that La. R.S. 9:2800.6(C)(2) defines a “merchant” as “one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business,” with a limited extension applicable to certain areas of an inn. Because the applicability of that definition to Live Nation as the operator of a concert venue has not been raised or briefed by the parties and is unnecessary to the disposition of this appeal, we do not address it.

For purposes of this appeal, whether the claim is analyzed under the assumed merchant liability framework or under general negligence principles, we assume Live Nation owed Plaintiff a duty to exercise reasonable care with respect to the condition of the premises. See La. R.S. 9:2800.6(A); La. C.C. art. 2315; Farrell, 22-00849, p. 5, 359 So.3d at 473. We further assume, without deciding, that the risk alleged by Plaintiff (i.e., injury from an allegedly unstable portable partition used to separate patron areas) falls within the scope of that duty. Those assumptions do not end the duty/risk analysis. Under Campbell and Farrell, Plaintiff was still required to produce competent summary judgment evidence creating a genuine issue of material fact as to breach, which in this premises context is analyzed through the unreasonable risk inquiry. Campbell, 24-00840, p. 28, 403 So.3d at 593; Farrell, 22-00849, pp. 6-15, 359 So.3d at 474-79.

To the extent La. R.S. 9:2800.6 applies, subsection (B) imposes additional statutory proof requirements on the claimant, including proof that the complained of condition presented an unreasonable risk of harm. La. R.S. 9:2800.6(B)(1). “The jurisprudence has recognized the failure to prove any of the three required elements in La. R.S. 9:2800.6(B) is fatal to the plaintiff's case.” Planchard v. New Hotel Monteleone, LLC, 21-00347, p. 4 (La. 12/10/21), 332 So.3d 623, 626 (citation omitted). The statutory requirements in La. R.S. 9:2800.6(B) should not be recast as a no duty rule. If the statute applies, subsection (A) supplies the merchant's duty, while subsection (B) imposes the statutory foreseeability requirement. The statutory proof requirements imposed by La. R.S. 9:2800.6(B) are separate from, and should not be conflated with, the duty/risk elements discussed in Campbell. Although particular statutory requirements may implicate considerations also relevant to one or more duty/risk elements, the statutory requirements remain independently prescribed burdens of proof.

The dispositive question in the case sub judice is narrower and is whether Plaintiff produced competent summary judgment evidence from which a reasonable factfinder could conclude that the portable partition presented an unreasonable risk of harm. Under Farrell, that inquiry concerns breach. To the extent La. R.S. 9:2800.6 applies, the same evidentiary failure is relevant to the statutory requirement in subsection (B)(1). We therefore proceed to the summary judgment evidence.

B. Summary Judgment Evidence Under Articles 966 and 967

Summary judgment is favored in Louisiana and is appropriate if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). When, as in the case sub judice, “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.” La. C.C.P. art. 966(D)(1). Instead, the mover need only “point out to the court the absence of factual support for one or more elements essential to the adverse party's claim.” Id. Once that showing is made, the burden then shifts to 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.

The court may only consider competent summary judgment evidence, and it “shall not consider any document that is excluded pursuant to a timely filed objection.” La. C.C.P. art. 966 (D)(2). Article 966(A)(4)(a) sets forth the exclusive list of documents that may be considered on summary judgment, which consists of “pleadings, memoranda, affidavits, 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.” As it relates to affidavits, Article 967 further requires that affidavits be made on personal knowledge, set forth facts admissible in evidence, and affirmatively show that the affiant is competent to testify.

“In meeting the burden of proof, unsworn or unverified documents attached to a motion for summary judgment are not self-proving and will not be considered as competent summary judgment evidence.” Precept Credit Opportunities Fund, LP v. Dave, 23-0104, 23-0105, p. 17 (La. App. 4 Cir. 10/3/23), 376 So.3d 210, 221-22 (quoting State v. Poree, 22-0425, p. 5 (La. App. 4 Cir. 12/20/22), 355 So.3d 1105, 1109).

Plaintiff's opposition relied principally on an unnotarized affidavit and email communications with Live Nation's third-party administrator. Live Nation timely objected to both in its reply to Plaintiff's opposition and reasserted its objections at the summary judgment hearing. The district court sustained the objections.

We find no error in the exclusion of the unnotarized affidavit. A document that is not sworn before an officer authorized to administer oaths is not competent affidavit evidence under Article 967. Plaintiff's unnotarized statement therefore could not be considered as competent summary judgment evidence.

The email communications were likewise properly excluded. The emails document post-incident communications between Plaintiff and Live Nation's third-party administrator. Plaintiff relies on these communications as corroboration of her account. At the hearing, Plaintiff's counsel argued generally that the emails were admissible but did not advance a specific theory establishing that they qualified as competent summary judgment evidence under Article 966. The emails were not affidavits, depositions, answers to interrogatories, certified records, written stipulations, or competent admissions by Live Nation. Nor did Plaintiff establish through the competent summary judgment evidence that the emails constituted sworn testimony or authenticated business records. We find no error in the district court's exclusion of the email communications.

Upon exclusion of the affidavit and emails, Plaintiff identified no competent summary judgment evidence bearing on the dispositive breach inquiry. Although pleadings and memoranda may be filed or referenced under Article 966, allegations in unverified pleadings and argument of counsel do not constitute factual support sufficient to satisfy Article 967(B). The remaining question is whether the competent summary judgment record contains factual support from which a reasonable factfinder could conclude that the partition presented an unreasonable risk of harm. We find that it does not.

C. Breach of Duty: Failure of Proof of Unreasonable Risk

Plaintiff argues that the partition presented a foreseeable hazard in a concert venue setting and that Live Nation could have prevented the incident through simple precautions such as weighted bases, anchoring, or warning signage. We address that argument under the breach element of the duty/risk analysis.

Under Farrell, whether a condition presents an unreasonable risk of harm is not a separate inquiry from breach. It is the means by which courts determine whether the defendant failed to conform to the duty owed. Farrell, 22-00849, pp. 8-12, 359 So.3d at 475-78.

We do not decide, as a factfinder would, that the partition was safe. Nor do we weigh competing evidence regarding the partition's condition. Rather, applying La. C.C.P. art. 966, we ask whether Plaintiff produced competent factual support from which a reasonable factfinder could conclude that Live Nation failed to conform to the duty owed. In this premises context, that inquiry turns on whether the partition presented an unreasonable risk of harm.

On the competent summary judgment record, Plaintiff did not make that showing. The record contains no competent evidence concerning the partition's physical construction, dimensions, height, weight, base, anchoring, placement, intended resistance to patron contact, prior instability, prior complaints, inspection history, or condition at the time of the occurrence. The record also contains no competent evidence identifying who placed or secured the partition, how it was configured, whether it had moved before Plaintiff's contact, or whether it was positioned in a manner that made ordinary patron movement unsafe.

Without such evidence, a factfinder could not meaningfully apply the Farrell risk/utility factors in Plaintiff's favor. There is no competent evidence from which to evaluate the utility or risk of the particular placement of the partition; the likelihood or magnitude of harm posed by that partition before the occurrence; the feasibility or cost of the alternatives Plaintiff identifies; or whether the partition's condition, as opposed to the mere fact that it was portable, made Plaintiff's ordinary activity unsafe.

The fact that an object allegedly moved when weight was applied to it does not, without more, establish that it presented an unreasonable risk of harm. On this record, a factfinder would have to speculate that the partition's movement resulted from a defective or unsafe condition rather than ordinary portability, patron contact, or Plaintiff's own contact with the object. Speculation cannot create a genuine issue of material fact. Smith v. Casino New Orleans Casino, 12-0292, pp. 10-11 (La. App. 4 Cir. 10/3/12), 101 So.3d 507, 513-14.

Accordingly, Plaintiff failed to produce factual support sufficient to establish a genuine issue of material fact as to breach because she failed to produce competent evidence that the partition presented an unreasonable risk of harm. Under Farrell, absent competent evidence of an unreasonable risk of harm, no reasonable factfinder could conclude that Live Nation breached the duty owed. With respect to La. R.S. 9:2800.6, this same evidentiary failure is independently dispositive of Plaintiff's claim.

D. Res Ipsa Loquitur

Plaintiff alternatively invokes res ipsa loquitur, arguing that a partition does not ordinarily give way when a patron leans against it absent negligence. She maintains that the occurrence itself should permit an inference of fault sufficient to defeat summary judgment. We disagree.

“Res ipsa loquitur is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant's negligence, more probably than not, caused the injury.” Salvant v. State, 05-2126, p. 18 (La. 7/6/06), 935 So.2d 646, 659 (citations omitted). “The doctrine applies only when the facts of the controversy ‘suggest negligence of the defendant, rather than some other factor, as the most plausible explanation of the accident.’ ” Id. (quoting Montgomery v. Opelousas Gen. Hosp., 540 So.2d 312, 319 (La. 1989)).

Under the Louisiana Supreme Court's formulation, the evidence must reasonably permit a finding that: (1) the injury is of a kind that ordinarily does not occur in the absence of negligence; (2) the evidence sufficiently eliminates other more probable causes of the injury, including the conduct of the plaintiff or a third person; and (3) the alleged negligence of the defendant falls within the scope of the defendant's duty to the plaintiff. Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030, p. 10 (La. 9/5/07), 966 So.2d 36, 43-44; Cangelosi v. Our Lady of the Lake Reg'l Med. Ctr., 564 So.2d 654, 665-66 (La. 1989) (on rehearing). Exclusive control may support the inference, but it is not an inflexible prerequisite in every case. Linnear, 06-3030, p. 12, 966 So.2d at 45; Cangelosi, 564 So.2d at 666. Rather, the ultimate inquiry is whether the circumstances permit a reasonable inference that the defendant's negligence, more probably than not, caused the injury.

Res ipsa loquitur is not a separate cause of action and does not alter the elements of the duty/risk analysis. Escobar v. Cajun Operating Co., 16-0558, p. 6 (La. App. 1 Cir. 12/22/16), 209 So.3d 198, 201. It is a rule of circumstantial evidence that may assist a plaintiff in establishing breach, and related causation, when the foundational facts permit an inference that the defendant's negligence more probably than not caused the injury. Linnear, 06-3030, pp. 6-7, 966 So.2d at 41-42; Cangelosi, 564 So.2d at 665. It does not create a duty, define the scope of duty, or dispense with any statutory proof requirement imposed by La. R.S. 9:2800.6.²

Plaintiff cannot satisfy that standard on the competent summary judgment record. The record contains no competent evidence describing the partition's construction, base, anchoring, placement, intended use, prior instability, or condition at the time of the occurrence. Without such evidence, the Court cannot conclude that the movement of the portable partition was so unusual that negligence by Live Nation is the most plausible explanation.

Nor does the competent record sufficiently eliminate other more probable causes or establish circumstances from which Live Nation's responsibility for the condition of the partition may reasonably be inferred. The alleged instrumentality was a portable partition located in a public concert venue during a live performance. On this record, the partition was accessible to patrons, including Plaintiff, and could have been affected by patron movement or contact before the incident. Plaintiff also produced no competent evidence excluding other reasonable explanations for the partition's movement, including ordinary portability, prior patron interaction, or the manner in which Plaintiff herself leaned against it.

Plaintiff's res ipsa argument rests on the occurrence alone. That is insufficient. Because the competent record does not establish that the accident was of a kind that ordinarily would not occur absent negligence, sufficiently eliminate other more probable causes, or provide a factual basis from which Live Nation's negligence could reasonably be inferred, res ipsa loquitur does not create a genuine issue of material fact as to breach.

We emphasize that this conclusion is confined to the limited record developed in this case. We do not hold that a premises liability plaintiff must always produce expert testimony, engineering evidence, or proof of every physical characteristic of an allegedly dangerous object before invoking res ipsa loquitur. In another case, eyewitness testimony, photographs, inspection evidence, testimony concerning placement or control, prior incidents, or other circumstantial evidence may provide a sufficient basis for the inference. In the case sub judice, however, despite the opportunity for discovery discussed above, the evidentiary record remained insufficiently developed to permit a reasonable factfinder to infer negligence by Live Nation without speculation.

E. Remaining Statutory Issues under La. R.S. 9:2800.6(B)(2) and (3): Creation, Notice, and Reasonable Care

Because Plaintiff failed to produce competent factual support that the partition presented an unreasonable risk of harm, summary judgment was proper on that basis alone. Assuming La. R.S. 9:2800.6 applies, Plaintiff was required under La. R.S. 9:2800.6(B)(1) to prove that the complained of condition presented an unreasonable risk of harm. The failure to prove any one of the required elements under La. R.S. 9:2800.6(B) is fatal to a merchant liability claim. Planchard, 21-00347, p. 4, 332 So.3d at 626.

Accordingly, we pretermit discussion of whether Plaintiff also failed to establish Live Nation's creation of the condition, actual notice, or constructive notice under La. R.S. 9:2800.6(B)(2), and whether Live Nation failed to exercise reasonable care under La. R.S. 9:2800.6(B)(3). Any alleged factual dispute regarding creation, notice, or the exercise of reasonable care is immaterial in the absence of competent evidence that the partition presented an unreasonable risk of harm.

After de novo review, we find that Plaintiff failed to produce factual support sufficient to establish a genuine issue of material fact as to breach because she failed to produce competent evidence that the partition presented an unreasonable risk of harm. Therefore, summary judgment was properly granted.

II. Assignment of Error No. 2: Motion for New Trial

In her second assignment of error, Plaintiff argues the district court abused its discretion in denying her motion for new trial. She contends the failure to notarize her affidavit was a “clerical error” and that, in the interest of fairness, the district court should have granted a new trial and considered the corrected, notarized affidavit attached to her motion. The corrected affidavit was substantively identical to the unnotarized affidavit filed with Plaintiff's opposition to summary judgment.

A motion for new trial may be granted when there is “good ground therefor.” La. C.C.P. art. 1973. Whether good grounds exist rests within the district court's discretion. Davis v. Wal-Mart Stores, Inc., 00-0445, p. 10 (La. 11/28/00), 774 So.2d 84, 93.

We recognize Plaintiff's argument that the defect in the affidavit was one of form rather than substance. The original affidavit was not excluded because Plaintiff failed to sign it, because the factual assertions were altered, or because the corrected affidavit differed in substance from the original. It was excluded because it was not notarized and therefore was not competent affidavit evidence under La. C.C.P. arts. 966 and 967. The question before us, however, is whether the district court abused its discretion in declining to grant a new trial where correction of that defect would not have changed the summary judgment result.

For purposes of reviewing that ruling, we consider the substance of the corrected affidavit and email communications. We do not thereby treat those materials as evidence that was properly before the district court when it decided the motion for summary judgment.

The corrected affidavit provides Plaintiff's account that she stood to applaud, leaned against the partition, and that the partition gave way, causing her to slip and twist her body. She further states that there were no signs cautioning patrons about the “unstable partition.” The emails add that the partitions were portable, were not fixed, and were used as dividers between seating areas.

Even considering those materials, the evidentiary deficiency identified in our summary judgment analysis remains. The corrected materials provide additional facts concerning the occurrence and the general nature of the partition, but they do not provide sufficient factual support from which a reasonable factfinder could determine, without speculation, that the partition presented an unreasonable risk of harm as required by La. R.S. 9:2800.6(B)(1).

The corrected materials likewise do not alter our res ipsa loquitur analysis. They do not sufficiently establish that the occurrence was of a kind that ordinarily would not happen absent negligence or sufficiently eliminate other plausible explanations for the partition's movement. Thus, even with the corrected affidavit and emails considered, the foundational circumstances necessary for the requested inference remain absent.

Our conclusion is limited to the evidentiary record developed in this case. We do not impose a categorical requirement that a premises-liability plaintiff produce expert testimony, engineering evidence, or any particular type of proof to survive summary judgment or to rely upon circumstantial evidence.

Accordingly, although the corrected affidavit cured the defect that caused the original affidavit to be excluded, it did not cure the evidentiary deficiency dispositive of summary judgment. Because consideration of the corrected affidavit and email communications would not have changed the result, the district court did not abuse its discretion in denying Plaintiff's motion for new trial.

CONCLUSION

After de novo review, we find that Plaintiff failed to produce competent factual support sufficient to establish a genuine issue of material fact that the portable partition presented an unreasonable risk of harm, as required by La. R.S. 9:2800.6(B)(1). That failure is dispositive of her merchant-liability claim. We further find no error in the district court's exclusion of Plaintiff's unnotarized affidavit and email communications and no abuse of discretion in its denial of Plaintiff's motion for new trial, as consideration of the corrected affidavit and email communications would not have changed the summary judgment result. Accordingly, we affirm the district court's April 8, 2025 judgment granting summary judgment in favor of Live Nation and its June 2, 2025 judgment denying Plaintiff's motion for new trial.

AFFIRMED

FOOTNOTES

1.   La. C.C.P. art. 966(A)(3) contemplates summary judgment “[a]fter an opportunity for adequate discovery․ .” A party need not be permitted to complete all discovery before summary judgment may be considered; rather, the relevant inquiry is whether the party had a fair opportunity to conduct discovery and present her claim. Roadrunner Transp. Sys. v. Brown, 17-0040, pp. 11-12 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272-73. A district court's determination that the parties have had an adequate opportunity for discovery before consideration of a motion for summary judgment is reviewed for abuse of discretion. Id., 17-0040, p. 11, 219 So.3d at 1272-73. In the case sub judice, the action had been pending for more than four years. Although Plaintiff argued at the summary judgment hearing that Live Nation's interrogatory responses were inadequate and that additional discovery was necessary, she had not filed a motion to compel additional responses, sought to reopen discovery, or otherwise obtained a ruling compelling the discovery she claimed was necessary. Nor was any discovery motion pending when the district court considered summary judgment. Under these circumstances, we find Plaintiff had an adequate opportunity for discovery within the meaning of Article 966(A)(3), and the district court did not abuse its discretion in proceeding with Live Nation's motion for summary judgment.

2.   This Court has not addressed the relationship between res ipsa loquitur and La. R.S. 9:2800.6 as other appellate courts have. In Davis v. Cheema, Inc., 14-1316, p. 6 n.4 (La. App. 4 Cir. 5/22/15), 171 So.3d 984, 988, we declined to consider res ipsa loquitur because the plaintiff had not raised the doctrine in the district court. However, in Williamson v. Wal-Mart Stores, Inc., 48,576, pp. 4-5 (La. App. 2 Cir. 1/8/14), 130 So.3d 478, 481-82, the Second Circuit declined to apply res ipsa loquitur, reasoning that the Legislature prescribed the claimant's burden of proving under La. R.S. 9:2800.6(B) to include that the complained-of condition presented an unreasonable risk of harm, that the merchant created or had actual or constructive notice of the condition, and that the merchant failed to exercise reasonable care. Subsequently, in Woods v. Winn-Dixie Stores, Inc., 22-0191, p. 7 n.6 (La. App. 1 Cir. 9/16/22), 353 So.3d 182, 189, the First Circuit likewise declined to apply the doctrine where the plaintiff sought to rely upon res ipsa loquitur to establish the merchant's actual knowledge of the alleged hazardous condition. In the case sub judice, Plaintiff argues that the occurrence itself, that is, the portable partition allegedly giving way when she leaned against it, requires an inference of negligence. We recognize that an inference drawn from the occurrence itself may overlap with one or more of the statutory showings required by La. R.S. 9:2800.6(B). We need not decide whether this Court should adopt the approach taken in Williamson and Woods. Even assuming the doctrine may be considered, Plaintiff failed to establish the foundational circumstances required under Salvant, Cangelosi, and Linnear. Thus, the res ipsa loquitur doctrine does not affect the disposition of this appeal.

Judge Joy Cossich Lobrano