Keys v. Harrahs Casino, LLC New Orleans, No. 2:2018cv03734 - Document 25 (E.D. La. 2019)
Court Description: ORDER granting 23 Motion for Summary Judgment. For the foregoing reasons as set forth in the document, defendant's 23 motion for summary judgment is GRANTED. Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 5/17/2019. (mm)
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Keys v. Harrahs Casino, LLC New Orleans Doc. 25 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SHANNON KEYS CIVIL ACTION VERSUS NO. 18-3734 HARRAHS CASINO, LLC NEW ORLEANS SECTION “R” (5) ORD ER AN D REASON S Before the Court is defendant Harrah’s Casino’s m otion for sum m ary judgm ent.1 Because the barricade on which plaintiff tripped did not present an unreasonable risk of harm , the Court grants the m otion. I. BACKGROU N D This case arises from an incident in which plaintiff Shannon Keys tripped over a barricade at defendant’s casino.2 Plaintiff visited Harrah’s Casino on Septem ber 4, 20 14 to play the slot m achines.3 As she walked toward the slot m achines, she went by a line of m etal barricades used for 1 R. Doc. 23. See generally R. Doc. 1-2. 3 R. Doc. 23-2 at 1 ¶ 1. Plaintiff has not filed a response to defendant’s m otion for sum m ary judgm ent. The Court therefore deem s the facts provided in the defendant’s statem ent of undisputed facts adm itted. See E.D. La. Local Rule 56.2. 2 Dockets.Justia.com crowd control that had been erected to block an area in which tile work was taking place.4 Plaintiff tripped on the leg of a barricade and fell.5 Plaintiff testified that she did not notice the barricades before her accident, but that she saw them im m ediately afterward.6 She testified that the room was adequately lit and that nothing blocked her view of the barricade on which she tripped.7 No other casino patrons reported sim ilar accidents.8 On Septem ber 3, 20 15, plaintiff filed a petition for dam ages claim ing that defendant negligently failed to supervise its com m on areas, to m aintain a safe working area for the tile work, and to m aintain the prem ises in a safe condition.9 Defendant rem oved the case to this Court on April 10 , 20 18 , asserting diversity jurisdiction.10 Defendant now m oves for sum m ary judgm ent arguing that it was not negligent because the barricades did not present an unreasonable risk of harm under Louisiana Revised Statute 9:280 0 .6.11 Plaintiff has not responded to the m otion. 4 5 6 7 8 9 10 11 Id. at 1-2 ¶¶ 2, 7; R. Doc. 1-2 at 1 ¶ 3. Id. R. Doc. 23-2 at 2 ¶ 3. Id. ¶ 4. Id. ¶ 8. R. Doc. 1-2 at 2-3 ¶¶ 6-7. R. Doc. 1. R. Doc. 23. 2 II. LEGAL STAN D ARD Sum m ary judgm ent is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgm ent.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 198 5); see also Little, 37 F.3d at 10 75. A dispute about a m aterial fact is genuine “if the evidence is such that a reasonable [factfinder] could return a verdict for the nonm oving party.” Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (198 6). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust com e forward with evidence which would entitle it to a directed verdict if the evidence went 3 uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). 4 III. D ISCU SSION In Louisiana, a plaintiff seeking dam ages against a m erchant because of a fall on its prem ises has the burden of proving that: (1) a condition on the prem ises presented an unreasonable risk of harm , (2) this harm was reasonably foreseeable, (3) the m erchant either created or had actual or constructive notice of the condition, and (4) the m erchant failed to exercise reasonable care. La. R.S. 9:280 0 .6(B). Defendant argues that plaintiff’s claim fails on the first elem ent because she has failed to show that the barricade on which she tripped presented an unreasonable risk of harm .12 Louisiana courts have not hesitated to grant sum m ary judgm ent in favor of defendants in cases in which the nature of the condition is undisputed and plaintiff has provided no evidence of any unusual feature of the condition suggesting that it is unreasonably dangerous. See, e.g., Dow dy v. City of Monroe, 78 So. 3d 791, 798-799 (La. App. 2 Cir. 20 11) (“A review of the jurisprudence reveals that the appellate courts have resolved on m otions for sum m ary judgm ent the issue of whether a condition presented an unreasonable risk of danger.”); Leonard v. Parish of Jefferson, 90 2 So. 2d 50 2, 50 5 (La. App. 5 Cir. 20 0 5) (affirm ing trial court’s grant of sum m ary judgm ent where plaintiff slipped 12 R. Doc. 23-1 at 1. 5 on a sidewalk with a height differential of over one inch); Reitzell v. Pecanland Mall Assocs., 852 So. 2d 1229, 1233-34 (La. App. 2 Cir. 20 0 3) (affirm ing sum m ary judgm ent when plaintiff slipped on an uneven transition between a walkway and a parking lot because som e unevenness is expected in such an area). Here, the nature of the condition—nam ely, the protruding leg of the barrier—is undisputed.13 Plaintiff has the burden of showing that the presence or location of the barrier presented an unreasonable risk of harm . Labit v. Palm s Casino & Truck Stop, Inc., 91 So. 3d 540 , 546 (La. App. 4 Cir. 20 12) (“[I]t is not the burden of the [defendant] to establish that the [condition] was safe; instead, it is the burden of the plaintiffs to show that the [condition] posed an unreasonable risk of harm .”). Plaintiff has failed to m eet this burden because she does not give any reason for her inability to see the barricade or to step around it.14 Objects that are large enough to see easily and are out in the open do not create an unreasonable risk of harm . See Bufkin v. Felipe’s La., LLC, 171 So. 3d 851, 858 (La. 20 14) (holding that an owner has no duty to warn others of “a large inanim ate object visible to all”); Depp v. La. Pow er & Light Co., 13 See R. Doc. 23-4 at 9 (plaintiff testifying that nothing obstructed her view of the barricades or m ade them unusual). 14 Id. 6 645 So. 2d 740 , 743 (La. App. 5 Cir. 1994) (holding that there was no unreasonable risk of harm when the object on which the plaintiff tripped was “clearly visible to all”). The barricades in question were three feet tall and were arranged in a line that extended for several m eters.15 Because the barricades were clearly visible, defendant had no duty to m ark the barricade or to keep plaintiff away from it. There would be no way for a reasonable person to not see the line of barricades when walking toward it. It was therefore an obvious and apparent condition that was safe for defendant’s patrons. Bufkin, 171 So. 3d at 859 (affirm ing sum m ary judgm ent “because the condition com plained of by the plaintiff was obvious and apparent and was reasonably safe for pedestrians exercising ordinary care and prudence”). Louisiana courts have considered sim ilar barricades so obvious that, not only do they assum e that the barricades do not constitute a hazard, they have held that sim ilar barricades m ay be used to direct a plaintiff’s attention toward an otherwise hazardous condition. Sullivan v. Gulf States Utilities Co., 382 So. 2d 18 4, 187 (La. App. 1 Cir. 198 0 ) (upholding determ ination that defendant was negligent for failing to barricade objects in a parking lot that were difficult to see that night). Indeed, it could have been negligent for plaintiffs not to barricade the area in which they were working on the tile. 15 R. Doc. 23-4 at 14. 7 See Depp, 645 So. 2d at 743 (“[I]t is the duty of one doing construction work to properly label, m ark or barricade places in the construction site that present an unreasonable risk of harm to persons using the area.” (em phasis in original)). Thus, the presence of a barricade clearly does not create an unreasonable risk of harm under Louisiana law. Accordingly, the Court finds that plaintiff’s evidence of the barricade erected in plain sight is not sufficient to create a genuine issue of fact as to whether it was unreasonably dangerous. IV. CON CLU SION For the foregoing reasons, defendant’s m otion for sum m ary judgm ent is GRANTED. Plaintiff’s claim s are DISMISSED WITH PREJ UDICE. New Orleans, Louisiana, this _ _17th _ _ _ day of May, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 8
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