Jessica Mackey v. American Multi-Cinema, Incorporated

Except in very rare instances such as the complete lack of proof, black letter Louisiana tort law holds that determination of breach of duty is a question of fact to be decided by the factfinder at trial. In Broussard v. State of Louisiana, ex rel. Office of State Buildings, 113 So.3d 175 (La. 2013), the Supreme Court of Louisiana expressly established this rule when applying Louisiana’s four-factor risk-utility balancing test for determining whether an allegedly defective condition presents an unreasonable risk of harm. The question presented here is whether the Fifth Circuit violated the Erie requirement of vertical uniformity by adopting a legal rule on premises liability that directly conflicts with Broussard, failed to conduct Broussard’s risk-utility balancing test, ignored Broussard’s holding disapproving determination of unreasonable risk of harm on summary judgment, and disregarded multiple precedents of this Court applying Fed. R. Civ. P. 56 to deprive Petitioner of the right to trial by jury under the Seventh Amendment. (i)