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

> Louisiana Court of Appeal · September 14, 2016 · 2015 La.App. 4 Cir. 1230

URL: https://www.frixlaw.com/law-library/cases/4829495

## Case

- **Full name:** Mary FIVEASH v. PAT O'BRIEN'S BAR, INC. and ABC Insurance Company
- **Court:** Louisiana Court of Appeal
- **Decided:** September 14, 2016
- **Citations:** 2015 La.App. 4 Cir. 1230; 201 So. 3d 912; 2016 La. App. LEXIS 1649
- **Precedential status:** Published
- **Opinion:** Dissent by Dysart
- **Judges:** Dysart, Landrieu, Ledet, Lobrano, Love
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4829495

## How later opinions describe it (automated extraction)

- 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.”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4829495. Public record. Not legal advice.