Videotape footage of a Mardi Gras Parade in New Orleans is not enough evidence to make the parade organizer liable for injuries to a spectator who was allegedly struck in the head by a coconut thrown from a float, a Louisiana appeals court has ruled.

Mardi Gras coconut throws are usually shielded from liability under Louisiana's Mardi Gras Immunity Statute but the law does not apply to an injury “caused by the deliberate and wanton act or gross negligence of the krewe or organization, or any member thereof.”

Daisy Palmer, a retired Orleans Parish teacher, and her husband alleged she was the victim of a grossly negligent coconut throw while watching a parade organized by the Zulu Social Aid and Pleasure Club, one of several Mardi Gras “krewes.” Float rider Namaan Stewart, the club's vice president, allegedly chucked five coconuts in quick succession, one of which hit Palmer.

Palmer's evidence included two videos, one shot by her husband and the other by a bystander, Bruce Welk. She noted that Zulu's own rules prohibit the throwing of coconuts.

But a 2-1 majority of the 4th Circuit Court of Appeal affirmed a trial judge who summarily dismissed the case, finding “no indication that the Palmers have met their burden in establishing that Mr. Stewart threw coconuts in a way that was negligent or foreseeably injurious to a spectator.”

“The videos do not show Mrs. Palmer being struck by a coconut, much less establish that a coconut thrown by Mr. Stewart struck Mrs. Palmer,” Judge Charles R. Jones wrote for the majority. Welk's video — which he called the “Coconut Artillery” — showed Stewart throwing five coconuts in quick succession.

In a brief dissent, Judge James F. McKay said both the trial court and the 4th Circuit majority “rely on their interpretations of certain evidence in the record. It is my belief that reasonable persons could view this evidence in different ways. Therefore, this creates a genuine issue of material fact.”

The Mardi Gras immunity law covers a variety of objects traditionally thrown from parade floats, including beads, cups, and doubloons. The Louisiana legislature added coconuts to the list in 1987 after the Zulu club was forced to suspend coconut-throwing because of the high cost of obtaining insurance.

Colorfully decorated Zulu coconuts are a coveted Mardi Gras souvenir. Despite the immunity, Zulu's rules now say, “The throwing of coconuts during the Zulu parade is positively forbidden. Coconuts will only be given out hand to hand.”

Palmer was injured Feb. 28, 2006 as the parade passed through New Orleans' French Quarter. "[H]ow can this not be gross negligence where Mr. Stewart throws five coconuts in quick succession into a crowd from the rear of the float, all in contravention of Zulu's own rules?” she asked in a brief.

Zulu began using lightweight, hollowed-out coconuts, each weighing four to five ounces, in 2005 to increase parade-goer safety. But the krewe's president said in a deposition that Zulu fans favor the heavy coconut, which is not hollowed out and can weigh up to 1-1/2 pounds.

In a similar case, the 4th Circuit ruled in 2006 that a woman could sue the Zulu Club for being hit in the face by a coconut thrown overhand.

“We believe that throwing a hard, heavy object, such as a coconut, at someone in a crowd of people equal to the length of one and one-half cars, in an overhead manner, demonstrates the want of even slight care and diligence,” the court said in Brown v. Lee, 929 So.2d 775.

Palmer argued that Stewart's actions were “more egregious than what the float rider did in the Brown case” but Jones said Brown was distinguishable in part because the plaintiff “had independent witnesses who both saw the distance from which the coconut was hurled, and the reckless and wanton manner it was hurled through the air.”

Palmer is appealing to the Louisiana Supreme Court. And she may have a point that the appeals court did not “draw any reasonable inferences raised by the evidence” in her favor, as required under the summary judgment standard.

After all, if Welk's video shows Stewart throwing coconuts and Palmer was hit at the same time by a coconut, it seems reasonable to infer it was a coconut thrown by Stewart that hit her.

A trial judge denied an earlier motion for summary judgment, concluding that "After reviewing the [video] footage, the court is of the opinion that a genuine issue of material fact exists as to whether the coconuts were thrown in a manner that would constitute gross negligence."

By Matthew Heller
5/2/10