In February 2010, the plaintiff, Beverly Zacher, was in attendance at a party at Harrah’s Casino in downtown New Orleans, which was being held to celebrate the New Orleans’ Saints Super Bowl victory that season. While in attendance, Ms. Zacher was standing near the back of the party venue, when she was allegedly run into by a man attempting to catch a white t-shirt that was thrown off of the party’s stage, causing her to fall and injure her shoulder, ankle, and thigh. Ms. Zacher filed suit against Harrah’s asserting claims of negligence, strict liability, and merchant liability for her injuries. After a one-day bench trial, the trial court found that Harrah’s was in part liable for Ms. Zacher’s injuries because Harrah’s breached its duty to provide adequate security to prevent such an accident from happening. Subsequently, Harrah’s filed an appeal, Zacher v. Harrah’s New Orleans Management Co.
On appeal, the court determined that the trial court erred in finding that Harrah’s breached its duty to Ms. Zacher to provide security to prevent “an accident.” Significant to the court’s finding, was the fact that the planned giveaway at the Super Bowl party was a black New Orleans Saints towel, which all witnesses said were handed out, rather than thrown, from the party’s stage. The white t-shirt throwing was not a planned event on the part of Harrah’s, and instead appeared to be based upon a spontaneous decision by the party’s M.C. Thus, the court found it unreasonable to find that Harrah’s had a duty to police against the M.C.’s unexpected act of throwing t-shirts into the crowd. Importantly, the court noted that, if Harrah’s had planned a promotional t-shirt throwing event that caused an injury, it could have been found liable.
Alternatively, Ms. Zacher argued that Harrah’s was liable for the M.C.’s actions because it had control over the premises at all times. The court rejected this argument, citing La. R.S. 9:2800.6, Louisiana’s statue governing merchant liability, reasoning that under the statute Harrah’s would only be liable for its own negligence and for defects or hazardous conditions on its property that it knew of or should have known about. Because there was no evidence that Harrah’s was aware that the M.C. would throw t-shirts into the crowd, the court rejected Ms. Zacher’s argument and reversed the judgment of the trial court, finding for Harrah’s.
Takeaway: A merchant does not have a duty to provide security to protect against an unforeseeable accident. If, however, a merchant is engaging in an activity in which an accident is reasonably foreseeable, then such a duty may arise.
This article was co-authored by Jon Phelps, an associate at Irwin Fritchie Urquhart & Moore LLC.