Friday, March 4, 2011

Mardi Gras Parades, Krewe Liability, and Assumption of Risk

Louisiana has a statute that may be unique in American law. Louisiana Revised Statutes § 9:2796, “Limitation of liability for loss connected with Mardi Gras parades and festivities; fair and festival parades,” does just that: it states that “no person shall have a cause of action against any krewe or organization” that participates in a Mardi Gras parade. It goes on to also state that anyone attending a parade “assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed, or hurled by members of the krewe” and that those “items shall include but are not limited to beads, cups, coconuts, and doubloons.” The only exception to both parts of this statute is if an injury is caused by “the deliberate and wanton act or gross negligence of the krewe or organization.”

Examples of types of injuries resulting from a Mardi Gras parade that were held not to be grossly negligent include getting hit by an entire bag of beads (Isidore v. Victory Club, Inc., 923 So.2d 747 (La. Ct. App. 2005)) and getting hit in the head by a coconut during the Zulu parade (Pierre v. Zulu Social Aid and Pleasure Club, Inc., 885 So.2d 1261 (La. Ct. App. 2004)).

How can you find out whether this statute is truly unique to Louisiana? The easiest way may be with Westlaw’s combined state statutes database, STAT-ALL. This is the combined, un-annotated text of the statutes from all 50 states, as well as the District of Columbia, Guam, Puerto Rico and the Virgin Islands. You can use the “caption” field restrictor on Westlaw to only seach the text of the heading - or “caption”, in Westlaw parlance - of all state statutes:
ca(parades  &  liability)
This turns up only three Louisiana statutes - the one about Mardi Gras parades, a related statute about St. Patrick’s day parades (R.S. § 9:2796.1), and one about parading without a permit (R.S. § 14:326). Casting a wider net and searching the full text of all state statutes for:
parades and liability
brings up sixty statutes throughout the country, most of which appear to be about horses and parades, such as Missouri Statutes § 537.325, “Definitions--liability for equine activities, limitations, exceptions--signs required, contents,” which defines “equine activities” to include “[e]quine shows, fairs, competitions, performances or parades that involve any or all breeds of equines." So it looks like Louisiana’s Mardi Gras parade limitation of liability statute is indeed unique.

Louisiana courts rarely delve into legislative intent because Article 9 of the Civil Code mandates that:
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
But when the insurance company for a Mardi Gras Krewe tried to stretch the limitation of liability found in section 2796, the Court of Appeals for the Fourth Circuit felt that an examination of the relevant legislative intent was appropriate. In Medine v. Geico General Ins. Co., 748 So.2d 532 (La. Ct. App. 4 Cir.,1999), an eager defense attorney argued that 2796 should apply when a truck, driven by Krewe members, had left a parade early because of mechanical problems and while en route back to the Krewe’s headquarters the truck’s brakes failed and an accident occurred.

The court looked at the committee minutes for the original bill and found that it was “intended to provide that no spectator would have a cause of action,” (emphasis added). They even mention that Mr. Mardi Gras himself, Blain Kern, testified before the committee on behalf of several krewes about how this bill was needed to help address the problems the krewes were having with the high cost of liability insurance. The court noted that the truck was no longer part of the parade and that the injured parties were not even spectators of the parade. The court held that extending section 2796 to acts such as this would be, quoting Article 9, "patently absurd" and thus it was wrong for the trial court to have granted summary judgment against the plaintiffs because of the limitation of liability in section 2796.

The court also made one minor point to keep in mind during Mardi Gras: it summarized the assumption of risk component of section 2796 in a footnote by saying “[i]n other words, one who invites a krewe member to ‘throw me something, mister,’ assumes the risk that mister’s aim will not be true.” Medine, at 536 (footnote 1).

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