Larry M. Cooper VS Casino Cruises, Inc. d/b/a Hollywood Casino
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 1116 LARRY M COOPER VERSUS CASINO CRUISES INC DBA HOLLYWOOD CASINO On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 565 Division D 489 Honorable Janice Clark Judge Presiding Johnnie A Jones Sr Baton Rouge LA Attorney for Plaintiff Appellant Larry M Cooper John S Campbell III John M Parker Jr Taylor Porter Brooks Phillips L P Baton Rouge LA Attorneys for Defendant Appellee Louisiana Casino Cruises Inc d b a Hollywood Casino BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered December 22 2010 PARRO 3 The plaintiff Larry M Cooper appeals the judgment of the trial court granting a motion for summary judgment in favor of the defendant Louisiana Casino Cruises Inc dba Hollywood Casino Hollywood Casino and dismissing Mr Cooper claim against s Hollywood Casino in its entirety For the reasons that follow we reverse the judgment and remand the matter to the trial court for further proceedings FACTUAL AND PROCEDURAL BACKGROUND On April 2 2007 at approximately 2 a Mr Cooper was leaving Hollywood 30 m Casino when he tripped and fell on an uneven portion of the casino exterior walkway s According to his petition Mr Cooper sustained injuries to his left knee right elbow and back as a result of the accident Mr Cooper sought to recover damages for these injuries as well as his lost wages loss of earning capacity and medical expenses Hollywood Casino answered the petition generally denying allegations and asserting certain affirmative defenses the s plaintiff Thereafter Hollywood Casino filed a motion for summary judgment in which it contended that there remained no genuine issues of material fact Specifically Hollywood Casino asserted that Mr Cooper could not meet a necessary component of his claim because he could not demonstrate that his trip and fall was caused by a condition in the walkway presenting an unreasonable risk of harm In support of its motion for summary judgment Hollywood Casino relied solely on Mr Cooper petition and excerpts from his deposition in which he testified that he s tripped on a raised area of the walkway where the concrete slab floor met the tile floor immediately outside the casino exit door s Mr Cooper further acknowledged in his deposition that this raised area in the tile floor was maybe a half not even half an inch high and that it was the only thing that caused or contributed to his fall After the hearing on the motion for summary judgment the trial judge held the matter open so that she could visit the scene of the accident After viewing the scene and after consideration of the evidence in the record which included a videotape of the 0 scene of the accident introduced by Mr Cooper the trial court found that the area was relatively free of any differentiation in height and as such did unreasonable risk of harm not create an Accordingly the trial court granted the motion for summary judgment in favor of Hollywood Casino Mr Cooper has appealed APPLICABLE LAW A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant Duncan v U Insurance Co 06363 La 11 950 So 544 546 see A S 06 29 2d LSAC art 966 P C A summary judgment is reviewed on appeal de novo with the appellate court using the same criteria that govern the trial court determination of s whether summary judgment is appropriate i whether there is any genuine issue of e material fact and whether the movant is entitled to judgment as a matter of law Samaha v Rau 071726 La 2 977 So 880 882 83 08 26 2d The summary judgment procedure is favored and is designed to secure the just speedy and inexpensive determination of every action LSAC art 966 P C 2 A A motion for summary judgment shall be granted if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law LSAC art 966 The burden of proof on summary judgment P C 8 remains with the movant However if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the s movant burden on the motion does not require him to negate all essential elements of the adverse party claim action or defense but rather to point out to the court that s there is an absence of factual support for one or more elements essential to the adverse party claim action or defense s Thereafter if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact 1 LSA Although the videotape shows the scene of the accident it does not show the accident itself because the camera does not continually record In addition the videotape appears to show a wideangle view of the area in which the accident occurred therefore it does not provide any closeup view of the raised area upon which Mr Cooper tripped and fell 3 P C art 966 2 C A genuine issue is a triable issue More precisely an issue is genuine if reasonable persons could disagree If on the state of the evidence reasonable persons could reach only one conclusion there is no need for a trial on that issue Summary judgment is the means for disposing of such specious disputes Smith v Our Lady of the Lake Hospital Inc 932512 La 7 639 So 730 751 94 5 2d In determining whether an issue is genuine courts cannot consider the merits make credibility determinations evaluate testimony or weigh evidence Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of material fact Id A fact is material when its existence or nonexistence may be essential to s plaintiff cause of action under the applicable theory of recovery Facts are material if they potentially insure or preclude recovery affect a litigant ultimate success or s determine the outcome of the legal dispute Simply put a material fact is one that would matter on the trial of the merits Any doubt as to a dispute regarding a Id genuine issue of material fact must be resolved against granting the motion and in favor of trial on the merits Suire v Lafayette City Parish Consolidated Government 041459 La 4 907 So 37 48 05 12 2d Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this matter Davis v Specialty Diving Inc 98 0458 980459 La App 1st Cir 4 740 So 666 669 writ denied 991852 La 10 750 So 99 1 2d 99 8 2d 972 Accordingly we now address the relevant substantive law The general rule is that the owner or custodian of property has a duty to keep the property in a reasonably safe condition The owner or custodian must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence Smith v The Runnels Schools Inc 041329 La App 1st Cir 3 907 So 109 112 This duty is the same under theories 05 24 2d rd of negligence or strict liability Under either theory the plaintiff has the burden of proving that 1 the property that caused the damage was in the custody of the defendant 2 the property had a condition that created an unreasonable risk of harm to persons on the premises 3 the unreasonably dangerous condition was a cause in fact of the resulting injury and 4 defendant had actual or constructive knowledge of the risk Id see gIsq LSAC arts 2315 and 2317 C 1 Whether a condition of a thing is unreasonably dangerous requires consideration of 1 the utility of the thing 2 the likelihood and magnitude of harm which includes the obviousness and apparentness of the complained of condition 3 the cost of preventing the harm and 4 the nature of the plaintiff activity in terms of the s s activity social utility or whether the activity is dangerous by nature Smith v The Runnels Schools Inc 907 So at 112 2d DISCUSSION Prior to rendering judgment in this matter the trial judge held the matter open after the hearing on Hollywood Casino motion for summary judgment so that she s could visit the site of the accident herself In deciding to make such a visit the trial judge stated that she was going to visit the scene so I can see whether a half inch makes a difference or not After completing this visit the trial judge granted the motion for summary judgment providing the following oral reasons The court having inspected the premises which formed the subject of this lawsuit together with the court reporter Achee the parties hereto and all counsel of record The inspection preceded viewing of the video tape rereading of the deposition testimony together with the other exhibits and memorandum in support and in opposition The court finds that the subject area is relatively free of any differentiation in height and as such did not create an unreasonable risk of harm Therefore the court grants the motion for summary judgment there being no genuine issues of material fact Mover is entitled to judgment it a matter of law s Judgment to be signed accordingly Notify counsel On appeal Mr Cooper contends that the trial judge erred in continuing the hearing on the motion for summary judgment until she could view the accident site in person Mr Cooper further asserts that the trial judge erred in conducting a mini trial 5 at the site extracting unsworn testimony from him and making certain credibility determinations in granting Hollywood Casino motion for summary judgment s As noted above a motion for summary judgment shall be granted if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law LSAC art 966 P C 8 Nothing in this provision grants a trial court the authority to visit the scene of an accident and make determinations based on what it viewed at the scene rather than basing its ruling simply on the evidence presented by the parties in conjunction with the motion for summary judgment and in opposition thereto Indeed in determining whether an issue is genuine for purposes of a motion for summary judgment courts cannot consider the merits make credibility determinations evaluate testimony or weigh evidence Smith v Our Lady of the Lake Hospital Inc 639 So at 751 Accordingly we find that the 2d trial court lacked authority to hold this matter open in order to conduct a visit to the site of the accident with the Nevertheless appellate courts review summary judgments de novo appellate court using the same criteria that govern the trial s court determination of whether summary judgment is appropriate See Samaha 977 So 2d at 882 Therefore this court will conduct a de novo review of the evidence in the record At least for the purposes of the motion for summary judgment neither party has contested the basic facts underlying this matter It is undisputed that Mr Cooper tripped and fell on a raised portion of tile in Hollywood Casino exterior walkway The s sole issue is whether this raised portion of tile which Mr Cooper testified was not even half an inch presented an unreasonable risk of harm to Mr Cooper under the particular circumstances of this case In its brief to this court Hollywood Casino argument appears to be that a s difference in height of onehalf inch or less in the exterior walkway cannot as a matter 2 There is no transcript of the trial judge visit to the scene of the accident and the plaintiff brief to this s s court does not provide any further details as to what is meant by the allegation that the trial judge conducted a minitrial and extracted unsworn testimony from the plaintiff 6 of law be unreasonably dangerous In support of this argument Hollywood Casino relies on Boyle v Board of Supervisors Louisiana State University 961158 La 97 14 1 685 So 1080 1082 in which the Louisiana Supreme Court found that a 2d defect in a sidewalk ranging anywhere from onehalf inch to two inches based on the estimates of the experts that testified at trial did not constitute an unreasonably dangerous condition However a review of Bile makes it clear that this finding is based on the facts and circumstances of that case rather than a fixed rule that any defect of that size is automatically too small to be considered an unreasonably dangerous condition In Boyle the supreme court quoted from White v City of Alexandria 216 La 308 43 So 618 1949 in which that court stated 2d there For determining what is a dangerous defect in a sidewalk is no fixed rule the facts and surrounding circumstances of each particular case control The test usually applied however requires an answer to the question of whether or not the walk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence Boyle 685 So at 1082 The court then performed the risk utility balancing test in 2d which it weighed factors such as the gravity and risk of harm individual and societal rights and the social utility involved before ultimately determining that under the facts of the case the defect did not constitute an unreasonable risk of harm M at 108384 Hollywood Casino also relies on Reed v WalMart Stores Inc 971174 La 98 4 3 708 So 362 in which the supreme court was presented with the question of 2d whether a height variance between one quarter and onehalf inch in a Wal Mart parking lot constituted an unreasonable risk of harm While the court ultimately found that this height variance did not constitute an unreasonable risk of harm the court specifically noted that the question of whether a defect presents an unreasonable risk of harm is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts The court further noted that the unreasonable risk of harm concept which requires a balancing of the risk and utility of the condition is not a simple rule of law that can be applied mechanically to the facts of the case Because of the plethora of factual questions and other 7 considerations involved the issue necessarily must be resolved on a casebycase basis Reed 708 So at 364 2d In this matter the only evidence before the court on the motion for summary judgment involved the height of the raised area in the tile floor Hollywood Casino relied only on the statements of Mr Cooper in his deposition that the raised area in the floor was not even half an inch and that nothing else caused him to trip however there is no evidence whatsoever concerning the remaining factors that are to be addressed by the court in considering the risk utility balancing test necessary to determine whether a condition in a thing constitutes an unreasonable risk of harm While Boyle and Reed did ultimately determine that height variances of onehalf inch or more were not unreasonably dangerous both cases applied the risk utility balancing test to the specific facts after a trial on the merits in coming to that conclusion Furthermore both cases acknowledge that the test is not a simple rule of law to be applied mechanically to the facts of the case In this case there is simply no evidence in the record that could be applied to any of the remaining factors in this balancing test Therefore genuine issues of material fact remain as to whether the raised area constituted an unreasonable risk of harm or an unreasonably dangerous condition DECREE Accordingly the judgment of the trial court granting summary judgment in favor of Louisiana Casino Cruises Inc dba Hollywood Casino is reversed and this matter is remanded to the trial court for further proceedings All costs of this appeal are assessed to Louisiana Casino Cruises Inc dba Hollywood Casino REVERSED AND REMANDED 3 Moreover we note that the movant Hollywood Casino had the initial burden of proof for purposes of seeking summary judgment pursuant to LSAC art 966 However as the defendant in this P C 2 C matter Hollywood Casino would not bear the burden of proof on the issue of whether the raised area constituted an unreasonable risk of harm or an unreasonably dangerous condition at trial therefore it was only required to point out to the court that there was an absence of factual support for one or more elements essential to Mr Cooper action Hollywood Casino attempted to point out to the court that s there was an absence of factual support for an essential element of the plaintiff cause of action by s providing evidence that the raised area was less than half an inch high Nevertheless that alone was not enough to defeat the plaintiff claim nor was it enough to shift the burden to the plaintiff to show s P C support for his claim in order to defeat the motion for summary judgment See LSAC art 2 C 966
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
