Opinion

Fiveash v. Pat O'Brien's Bar, Inc.

  • 2015 La.App. 4 Cir. 1230
  • 201 So. 3d 912
  • 2016 La. App. LEXIS 1649
Court
Louisiana Court of Appeal
Filed
Sep 14, 2016
Status
Published
Author
Dysart
On the bench
Dysart, Landrieu, Ledet, Lobrano, Love
Cited by
19 cases
Authority
More cited than 17.5%

holding that “the weighing of evidence and the evaluation of sworn testimony for its truthfulness is outside the scope of a court's authority on summary judgment.”

How later courts described this case

  • holding that “the weighing of evidence and the evaluation of sworn testimony for its truthfulness is outside the scope of a court's authority on summary judgment.”

Written by the judges who cited it.

The opinion

DYSART, J.,

DISSENTS, WITH REASONS.

hi respectfully dissent. A party claiming spoliation of evidence must prove that the defendant intentionally destroyed the evidence for the purpose of depriving the opposing party of its use. Quinn v. RISO, 03-0903 (La.App. 4 Cir. 3/3/04) , 869 So.2d 922, 927 . In short, to find that spoliation of the evidence has occurred, our law requires a showing of bad faith or bad conduct. Guillory v. Pellerin, 2009 WL 690543 (W.D.La. Mar. 6, 2009); Yelton v. PHI, Inc,, 284 F.R.D. 374 (E.D.La.2012).

Here, the defective step in question was located in a highly trafficked area in Pat O’Brien’s Bar and required repair so as to avoid future accidents. Photos of the step both before and after the repair were available. The 'nature of the step (or threshold) was not changed, but only repaired to make it safe. There was open communication between counsel before and during the repair. Further, the obviously open nature of and public access to the area allowed béfore the repair precluded any bad faith effort to destroy evidence. I would deny the writ.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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