James v. Hilton New Orleans Corporation

Filing 27

ORDER & REASONS: granting 17 Hilton Management, LLC's Motion for Summary Judgment; denying as moot 24 Motion for Leave to File Reply. Signed by Judge Carl Barbier on 7/30/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MATTHEW JAMES

CIVIL ACTION

VERSUS

NO: 14-2763

HILTON NEW ORLEANS
CORPORATION

SECTION: “J”(5)

ORDER & REASONS
Before the Court is a Rule 56 Motion for Summary Judgment
(Rec.

Doc.

(“Hilton”)

17)

filed

by

(erroneously

Defendant,

Hilton

identified

as

Management,

Hilton

New

LLC,

Orleans

Corporation) and an opposition thereto (Rec. Doc. 23) filed by
Plaintiff. Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion
should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation commenced when on August 8, 2014, Plaintiff
filed a Petition for Damages in state court alleging premises
liability

and

negligence

against

Hilton.

In

the

petition,

Plaintiff alleged that on August 10, 2013, he tripped and fell
over “metal piping which was positioned in between the incoming
and outgoing traffic” on the premises of a Hilton New Orleans
Riverside
averred
condition

Hotel
that
and

parking

garage.

(Rec.

1-2)

Plaintiff

above-described

hazardous

Hilton

“created

the

caused

the

where

area

Doc.

[Plaintiff]

fell

to

be

dangerous, unsafe and present an unreasonable risk of harm.”
Defendant removed the case based on diversity jurisdiction on
December 5, 2014, and this Court denied Plaintiff’s Motion to
Remand. (Rec. Doc. 16)
According to his deposition testimony, Plaintiff went to
the

concierge

desk

in

the

hotel

and

asked

for

help

in

the

parking garage because the exit gates were malfunctioning. (Rec.
Doc. 23-3, p. 9) Plaintiff then followed the concierge from the
hotel into the parking garage. Although Plaintiff did not see
the concierge cross the railing, he saw her standing on the
other side of it. (Rec. Doc. 23-3, p. 11) Plaintiff did not
notice a way around the railing, so he attempted to step over
it. Plaintiff successfully stepped over the railing with his
left foot and put that foot on the ground on the other side of
the railing. (Rec. Doc. 23-3, p. 12) In the process of stepping
over the railing with his right foot, Plaintiff fell. (Rec. Doc.
23-3, pp. 12-13)
At

the

time

of

the

incident,

the

railing

at

issue

was

painted a bright yellow. (Rec. Doc. 17-3) The railing stands
24.5 inches high, with a length of approximately 46 feet. The
piping that comprises the rail has a diameter of 6.5 inches.
On

June

30,

2015,

Defendant

filed

the

present

Rule

56

Motion for Summary Judgment (Rec. Doc. 17), seeking complete
dismissal

of

this

proceeding,

with

2

prejudice.

After

a

brief

continuance, Plaintiff opposed the motion for summary judgment
on July 22, 2015. (Rec. Doc. 23)
PARTIES’ ARGUMENTS
Defendant

argues

that

Plaintiff

cannot

prove

that

he

encountered, or that there even existed any defect presenting an
unreasonable risk of harm that caused him to fall. According to
Defendant, Plaintiff “saw the railing . . . , knew it was there,
purposefully

crossed

(Rec.

Doc.

seen,

anticipated

Defendant

17-1)

argues

over

Because
and

it
the

and

railing

purposefully

that

it

then

was

fell
was

while

“open

encountered
not

a

doing

and

so.”

obvious,

by

plaintiff,”

defect

presenting

unreasonable risk of harm.
In opposition to Defendant’s motion, Plaintiff argues, as
an initial matter, that the question of whether a hazard was
open and obvious is “clearly a question for the jury.” (Rec.
Doc. 23, p. 10) Moreover, Plaintiff argues that the railing was
not an open and obvious hazard because “[t]here was no way for
[Plaintiff] to ascertain by merely looking at the metal piping
the extent of the danger that it posed to him should he attempt
to step over it.” Lastly, Plaintiff argues that depositions of
those persons present in the parking garage on the day of the
incident must be taken “in order to determine if there existed
any defect in the metal piping that could have caught on the

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plaintiff’s clothing and/or leg which caused him to fall.” (Rec.
Doc. 23, p. 11)
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.
R. Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence
in

the

record

but

refrains

from

making

credibility

determinations or weighing the evidence.” Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.
2008).

All

reasonable

inferences

are

drawn

in

favor

of

the

nonmoving party, but a party cannot defeat summary judgment with
conclusory allegations or unsubstantiated assertions. Little, 37
F.3d

at

1075.

A

court

ultimately

must

be

satisfied

that

“a

reasonable jury could not return a verdict for the nonmoving
party.” Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l

4

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir.

1991)

(citation

omitted).

The

nonmoving

party

can

then

defeat the motion by either countering with sufficient evidence
of its own, or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If

the

dispositive

issue

is

one

on

which

the

nonmoving

party will bear the burden of proof at trial, the moving party
may satisfy its burden by merely pointing out that the evidence
in

the

record

is

insufficient

with

respect

to

an

essential

element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325. The burden then shifts to the nonmoving party, who must, by
submitting
showing

or

that

referring
a

genuine

to

evidence,

issue

set

exists.

out

See

specific

id.

at

facts

324.

The

nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,
e.g., id. at 325; Little, 37 F.3d at 1075.
DISCUSSION
Under Louisiana law, it is well-settled that “a landowner
owes

a

duty

to

a

plaintiff

to

discover

any

unreasonably

dangerous conditions, and to either correct the condition or
warn of its existence.” Dauzat v. Curnest Guillot Logging Inc.,
995 So. 2d 1184, 1186 (La. 2008) (per curiam). Louisiana Civil
Code

articles

2317

and

2317.1

provide

5

that

an

individual

is

responsible for the damage caused by things in his custody and
answerable for damage caused by their defect upon a showing that
he knew or, in the exercise of reasonable care, should have
known of the defect that caused the damage, that the damage
could have been prevented by the use of reasonable care, and
that he failed to exercise such care. La. Civ. Code Ann. arts.
2317, 2317.1. Thus, to recover for damages caused by a defective
thing, the plaintiff must prove the following elements: (1) the
property that caused the damage was in the defendant’s custody;
(2)

the

property

contained

a

defect

that

presented

an

unreasonable risk of harm to others; (3) the defective condition
caused the damage; and (4) the defendant knew or should have
known of the defect. See, e.g., Ardoin v. Lewisburg Water Sys.,
963 So. 2d 1049, 1051 (La. App. 3 Cir. 2007).
The owner or custodian of a thing is not responsible for
all injuries resulting from any risk posed by the thing. Rather,
the owner is only responsible for those injuries caused by a
ruinous condition or defect that presents an unreasonable risk
of harm to others. See Broussard v. State ex rel. Office of
State Bldgs., 113 So. 3d 175, 183 (La. 2013). The question of
whether a defect presents an unreasonable risk of harm is “a
matter wed to the facts” and must be determined in light of the
facts and circumstances of each particular case. Id. Courts have
adopted a risk-utility balancing test to determine whether such

6

a condition is unreasonably dangerous, wherein the trier of fact
balances the gravity and the risk of harm against the individual
and societal utility and the cost and feasibility of repair.
Bufkin v. Felipe's La., LLC, No. 14-0288, 2014 WL 5394087, at *4
(La. Oct. 15, 2014).
The
utility

Louisiana
balancing

Supreme
test

to

Court
a

has

synthesized

consideration

of

four

the

risk-

pertinent

factors: “(1) the utility of the complained-of condition; (2)
the likelihood and magnitude of harm, including the obviousness
and apparentness of the condition; (3) the cost of preventing
the harm; and (4) the nature of the plaintiff's activities in
terms of social utility or whether the activities were dangerous
by nature.” Id. (citing Broussard, 113 So. 3d at 184).
The second prong of this risk-utility inquiry focuses on
whether

the

allegedly

dangerous

or

defective

condition

is

obvious and apparent. Under Louisiana law, a defendant generally
does not have a duty to protect against an obvious and apparent
hazard. Id.; Broussard, 113 So. 3d at 184. In order for an
alleged hazard to be obvious and apparent, the hazard should be
one that is “open and obvious to everyone who may potentially
encounter it.” Bufkin, 2014 WL 5394087, at *4 (citing Broussard,
113 So. 3d at 184).
In his opposition, Plaintiff cites to Fuqua v. Horseshoe
Entm't, No. 11-733, 2012 WL 2562862 (W.D. La. June 29, 2012). In

7

Fuqua, the plaintiffs were walking across a grassy median when
one of them tripped on a rebar stub protruding “about an inch to
an inch and a half above” the median surface. Id. at *1-2. The
court

denied

summary

judgment

because

a

genuine

issue

of

material fact existed regarding the defendant’s knowledge of the
exposed rebar stub. Id. at *5. Unlike the instant case, whether
the rebar stub was an obvious and apparent hazard was not at
issue in Fuqua, as the court noted that the surveillance video
“shows no obvious cause for her fall.” Id. at *1.
The instant case is more comparable to Bufkin v. Felipe’s
Louisiana, LLC. In Bufkin, the plaintiff was injured when he was
struck by a bicyclist while attempting to cross the street next
to the defendant's large dumpster. 2014 WL 5394087, at *1. The
plaintiff alleged that the dumpster contributed to his injury by
obstructing his view and preventing him from crossing the street
safely.

Id.

The

Louisiana

Supreme

Court

held

that

summary

judgment in favor of the defendant was appropriate because the
evidence

presented

on

the

motion

for

summary

judgment

established that any vision obstruction caused by the dumpster
was

“obvious

exercising

and

apparent,

ordinary

care

and

and

reasonably

prudence.”

Id.

safe
at

for
*6;

persons
see

also

Rodriguez v. Dolgencorp, LLC, 152 So. 3d 871, 872 (La. 2014)
(per curiam) (granting summary judgment in favor of defendant
because the presence of a shopping cart in the parking lot was

8

open and obvious, and did not create an unreasonable risk of
harm where the customer who fell “was aware of the presence of
the

shopping

cart

and

could

have

avoided

harm

through

the

exercise of ordinary care”).
Louisiana courts have recently discussed whether courts may
grant summary judgment on the issue of whether an alleged defect
presents an unreasonable risk of harm.
rel.

Office

of

State

Buildings,

In Broussard v. State ex

which

involved

a

full

jury

trial, not a motion for summary judgment, the Louisiana Supreme
Court

held

that

the

determination

of

whether

a

defect

constituted an unreasonable risk of harm was a question for the
trier

of

fact.

Louisiana

113

Supreme

So.

Court

stating

“[Broussard]

summary

judgment

3d

at

clarified

should

when

185.

no

not
legal

However,

its
be

in

Bufkin,

the

holding

in

Broussard,

construed

as

precluding

duty

is

owed

because

the

condition encountered is obvious and apparent to all and not
unreasonably dangerous.” 2014 WL 5394087, at *7 n.3. Similarly,
in Allen v. Lockwood, the Louisiana Supreme Court held that the
issue of whether a defect created an unreasonable risk of harm
was an appropriate issue for summary judgment. 156 So. 3d 650,
653

(La.

2015)

interpreting
involving

it

issues

(per
as

a
of

curiam).
limit

on

“Any

reading

summary

unreasonable

risk

of

Broussard

judgment
of

harm

misinterpretation of the Broussard case.” Id. at 652-53.

9

practice
is

a

In

sum,

Louisiana

jurisprudence

does

not

preclude

the

granting of a motion for summary judgment in cases “where the
plaintiff is unable to produce factual support for his or her
claim that a complained-of condition or thing is unreasonably
dangerous.”

Bufkin,

2014

WL

5394087,

at

*7

(Guidry,

J.,

concurring). “Rather, in such a procedural posture, the court's
obligation
material

is

to

decide

fact

as

to

‘if

whether

there
the

[is]

a

genuine

[complained-of

issue

of

condition

or

thing] created an unreasonable risk of harm.’” Lockwood, 156 So.
3d at 653.
In the instant case, Defendant produced the affidavit of
Cedric Williams, deposition of Plaintiff, and photographs of the
railing at issue. In his affidavit, Cedric Williams states that
the

railing

has

existed

in

the

parking

garage

for

at

least

eighteen years and has not been the subject of any reported
complaint or accident in the ten years that he has been Director
of Parking Operations. (Rec. Doc. 17-3, pp. 1-2) In Plaintiff’s
deposition, he admits that he saw the railing at issue when he
approached it and made the decision to attempt to step over it.
(Rec. Doc. 17-5, pp. 5-6) The photographs of the railing at
issue

show

that

the

complained-of

condition—a

bright

yellow

railing, over two feet tall and forty-six feet long—was obvious
and apparent to anyone who may potentially encounter it. Thus,
the Court concludes that Defendant had no duty to warn of the

10

obstruction

presented

to

pedestrians

by

the

bright

yellow

railing.
Once Defendant demonstrated that Plaintiff would be unable
to

bear

his

burden

to

prove

an

essential

element

of

his

negligence action, that a duty was owed by Defendant to him,
then

the

burden

shifted

to

Plaintiff

to

demonstrate

that

he

would be able to meet the burden at trial. Plaintiff failed to
produce

any

evidence

to

rebut

Defendant’s

evidence

or

demonstrate how the alleged defects caused the accident. In his
opposition, the only evidence Plaintiff produced was his own
deposition, in which he admits that he was aware of the railing
and decided to attempt to step over it. (Rec. Doc. 23-3, pp. 1012) Moreover, in his deposition, Plaintiff could not remember
exactly what happened to his right foot to cause him to fall.
(Rec. Doc. 23-3, pp. 12-13) Therefore, as there is no genuine
issue

as

to

unreasonably

whether

the

dangerous,

railing

in

Defendant

the

is

parking

entitled

garage
to

was

summary

judgment in its favor as a matter of law.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Rule 56 Motion for
Summary Judgment (Rec. Doc. 17) is GRANTED.

11

IT IS FURTHER ORDERED that Defendant’s Motion for Leave to
File Reply Memorandum in Support of Motion for Summary Judgment
(Rec. Doc. 24) is DENIED as moot.
New Orleans, Louisiana this 30th day of July, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

12