Peters v. Jazz Casino Company, LLC et al

Filing 33

ORDER & REASONS granting 25 Motion for Summary Judgment; the plaintiffs claims are hereby dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 6/28/2017. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JONATHAN PETERS

CIVIL ACTION

v.

NO. 16-3064

JAZZ CASINO COMPANY, LLC, ET AL.

SECTION "F"

ORDER AND REASONS
Before
judgment.

the

Court

is

the

defendants’

motion

for

summary

For the reasons that follow, the motion is GRANTED.
Background

This

personal

injury

lawsuit

arises

from

a

plaintiff’s

allegations that he deliberately stepped on a hose in a service
entry driveway outside Harrah’s Hotel in New Orleans, Louisiana,
which caused him to fall and break his wrist.
Jonathan Peters is a project line manager for Teledyne CETAC
Technologies.

He is also a musician.

When in New Orleans for a

business trip from March 8 and March 13, 2015, Peters stayed at
Harrah’s Hotel.

Peters went to dinner and had a couple of beers

with work colleagues on March 12.

After dinner, he returned to

Harrah’s and went to the casino, where he played poker for a couple
1

of hours and drank three more beers.
room at around 1:00 or 1:30 a.m.

Peters returned to his hotel
Hungry, he left the hotel to

find something to eat.
It was drizzling outside when Peters exited the main entrance
of the hotel.

He walked west on South Peters Street on a red brick

sidewalk adjacent to the hotel.

When he started walking across a

hotel driveway on the sidewalk, his feet allegedly started sliding.
Worried he might slip and fall, Peters noticed a hose located down
the slope of the driveway, running parallel to the street.

Rather

than continuing to walk along the sidewalk, Peters decided to step
on the hose to stabilize his footing. 1

During his deposition,

Peters explained, “I saw a hose on the ground and mistakenly
thought it would be less slippery of a surface than the red brick
and put my foot on it and slipped and broke my wrist.”

But when

Peters stepped on the hose, his right foot immediately slipped on
the surface of the hose, and he fell, landing on his right wrist,
which broke.

He had surgery and alleges that his right wrist is

now permanently damaged, his range of motion permanently impeded.
Jonathan Peters sued Jazz Casino Company, LLC (the hotel
operator) and JCC Fulton Development, LLC (the hotel owner) in

1

It is undisputed that the plaintiff could have reversed course
to avoid the driveway and the hose, or he could have walked across
the driveway on the sidewalk without stepping on the hose.
2

state court.

Peters alleges that the defendants’ negligence

created an unreasonable risk of harm, which caused him to fall and
break his wrist.

On April 13, 2016, the defendants removed the

cased to this Court, invoking the Court’s diversity jurisdiction.
The defendants now seek summary relief.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

A genuine

dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
3

an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat

summary

judgment

"[T]he nonmoving party cannot

with

conclusory

allegations,

unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).

In deciding whether a fact

issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).

Although the Court

must "resolve factual controversies in favor of the nonmoving
party," it must do so "only where there is an actual controversy,
that is, when both parties have submitted evidence of contradictory
facts."

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th

Cir. 2013)(internal quotation marks and citation omitted).
4

II.
A.

Louisiana law governs this diversity case.

Louisiana Revised

Statute § 9:2800.6 establishes the plaintiff’s burden of proof in
slip and fall claims against merchants like Harrah’s: 2
A. A merchant owes a duty to persons who use his
premises to exercise reasonable care to keep his aisles,
passageways, and floors in a reasonably safe condition.
This duty includes a reasonable effort to keep the
premises free of any hazardous conditions which
reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by
a person lawfully on the merchant’s premises for damages
as a result of an injury, death, or loss sustained
because of a fall due to a condition existing in or on
a merchant’s premises, the claimant shall have the
burden of proving, in addition to all other elements of
his cause of action, all of the following:
(1) The condition presented an unreasonable risk of
harm to the claimant and that risk of harm was reasonably
foreseeable.
(2) The merchant either created or had actual or
constructive notice of the condition which caused the
damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care.
In determining reasonable care, the absence of a written
or verbal uniform cleanup or safety procedure is

Pursuant to La. R.S. 9:2800.6 C(2), hotel owners and operators
are considered merchants in public areas of a hotel. Public areas
of a hotel include areas outside of a merchant’s business. Davis
v. Cheema, Inc., 2014-1316 (La. App. 4 Cir. 5/22/15), 171 So.3d
984.
It is undisputed that Peters’ claims against Jazz Casino
Company and JCC Fulton Development arise under this law.
5
2

insufficient, alone, to prove exercise of reasonable
care.
C.

Definitions

(1) “Constructive notice” means the claimant has proven
that the condition existed for such a period of time
that it would have been discovered if the merchant had
exercised reasonable care. The presence of an employee
of the merchant in the vicinity in which the condition
exists does not, alone, constitute constructive notice,
unless it is shown that the employee knew, or in the
exercise of reasonable care should have known, of the
condition.
...
(Emphasis added).
While a merchant owes a duty to its patrons to exercise
reasonable efforts to keep the premises free of any hazardous
conditions which might give rise to damage, merchants are not
required to insure against all accidents that could occur on the
premises. La. R.S. 9:2800.6 A; Retif v. Doe, 93-1104 (La. App. 4
Cir. 2/11/94), 632 So.2d 405, 408, writ denied, 1994-1000 (La.
6/17/94), 638 So.2d 1095.
Where, as here, the plaintiff alleges that a merchant is
liable for the injuries caused by his slip and fall, the plaintiff
has the burden to prove that:

6

1.

The condition presented an unreasonable risk of harm to
the plaintiff and that risk of harm was reasonably
foreseeable;

2.

The

merchant

either

created

or

had

actual

or

constructive notice of the condition which caused the
damage, prior to the occurrence; and
3.

The merchant failed to exercise reasonable care.

La. R.S. 9:2800.6B; White v. Wal-Mart Stores, Inc., 97-0393 (La.
9/9/97), 699 So.2d 1081, 1083.

Because the plaintiff has the

burden of proving all of the necessary elements of his claim for
negligence under the Merchant Statute, the failure to prove each
and every one “is fatal to [the plaintiff’s] cause of action.”
White, 699 So.2d at 1086.
B.
The defendants seek summary relief on the ground that Peters
cannot establish the first essential element of the merchant
liability statute: that is, that he slipped and fell due to a
condition

that

presented

an

unreasonable

risk

of

harm.

The

defendants submit that the hose was an open and obvious condition
that did not present an unreasonable risk of harm; and that because
the plaintiff cannot prove an essential element of his claim, the

7

defendants are therefore entitled to judgment as a matter of law.
On this record, the Court agrees.
The Louisiana Supreme Court uses a risk-utility balancing
test in assessing whether a condition presents an unreasonable
risk of harm.

Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La.

10/15/14), 171 So.3d 851, 856.

It consists of four 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 its social utility or
whether it is dangerous by nature.

Id.

Focusing on the second element, “a defendant generally does

not have a duty to protect against that which is obvious and
apparent.

In order for an alleged hazard to be considered obvious

and apparent, [Louisiana courts] consistently state[] the hazard
should be one that is open and obvious to everyone who may
potentially encounter it.”

Id. (citing Broussard v. State ex.

Rel. Office of State Buildings, 2012-1238 (La. 4/15/13); 113 So.
3d 175, 184).

“The open and obvious inquiry thus focuses on,” the

state high court has written, “the global knowledge of everyone
who encounters the defective thing or dangerous condition, not the
victim’s actual or ascertainable knowledge.”
at 188.

Broussard, 113 So.3d

To be sure, “a landowner is not liable for an injury which
8

results from a condition which should have been observed by the
individual in the exercise of reasonable care, or which was as
obvious to a visitor as it was to the landowner.”

Eisenhardt v.

Snook, 2008-1287, (La. 3/17/09), 8 So.3d 541, 544-45.
In

Eisenhardt,

the

Louisiana

Supreme

Court

upheld

the

district court’s ruling following a bench trial that the defendant
was not liable to the plaintiff who slipped and fell on wet steps
while leaving his residence.

Id.

The steps were wet because they

were hosed down by the plaintiff’s girlfriend.

The district court

determined and the state high court agreed, that “the condition of
the steps should have been open and obvious to [the plaintiff].
While the steps may have been slipper due to water, not every minor
imperfection or defect in a thing will give rise to delictual
responsibility.”

Id. at 545.

In Bufkin, a pedestrian sued a construction company after he
was struck by a bicycle when he attempted to cross a street in an
area where the sidewalk was blocked by construction activity and
his

vision

Bufkin,

171

was

obstructed

So.3d

at

by

a

853.

large

The

construction

district

court

dumpster.

denied

the

construction company’s motion for summary judgment, rejecting the
construction

company’s

argument

that

it

owed

no

duty

to

the

plaintiff because the dumpster was obvious and apparent, not
9

unreasonably dangerous, and it had no duty to warn of the clearly
visible obstruction.

Id. at 853-54.

The appellate court refused

to grant the defendant’s writ application.
Louisiana

Supreme

Court

reversed,

finding

Id. at 854.
that

the

The

plaintiff

failed to show that he would be able to carry his burden at trial
to show that a duty was owed by the defendant.

Id. at 854, 859

n.3 (“Broussard should not be construed as precluding summary
judgment

when

no

legal

duty

is

owed

because

the

condition

encountered is obvious and apparent to all and not unreasonably
dangerous.”).
In Morel v. Cheema Properties, LLC, 216. So.3d 383 (La.App.
5 Cir. 4/12/17), the plaintiff tripped over two hoses next to the
curb and in front of the entrance of a gas station as she exited
the store.

The plaintiff, who was elderly and using a cane, saw

the hoses, but nevertheless chose to step over them rather than go
back into the store to request assistance.

Id. at 384.

The

district court found that the hoses were open and obvious and did
not present an unreasonable risk of harm, and granted summary
judgment in the defendant’s favor.

Id.

The appellate court

affirmed, concluding that the plaintiff could not bear her burden
of proving that the defendant owed a duty.

Id. at 388.

Notably,

the state appellate court observed, “[t]he most significant and

10

undisputed fact in this case is that plaintiff saw the hoses and
was aware that the hoses could cause her to fall.”

Id.

The summary judgment record in this case reveals that there
is no dispute concerning how or where the plaintiff fell. Although
the plaintiff appears to dispute whether the hose was obvious and
apparent to a reasonably prudent person, he offers no evidence in
support of his position that the hose was not obvious.

Indeed,

the plaintiff admits that the only evidence in the record regarding
the condition of the walkway and the presence of the hose is his
own testimony.

And it is the plaintiff’s testimony that the

defendants invoke in support for their request for summary relief:
Peters admits that he saw the hose and could have avoided it, but
he deliberately chose to step on the hose in the hopes that it
would have more traction than the walkway.

Peters admits that he

altered his course by turning to his right and walking down the
slope of the driveway towards the street with the intention of
stepping on the hose.

This uncontroverted evidence is sufficient

to establish that a reasonably prudent person could have avoided
stepping on the hose by exercising ordinary care.
Insofar as the plaintiff attempts to overcome the adverse
legal

implication

of

his

own

testimony

by

arguing

that

his

knowledge of the presence of the hose before his alleged accident
11

is insufficient to establish that the hose was open and obvious to
anyone encountering the condition, this argument has no merit.
Under the circumstances, it is permissible to rely solely on the
plaintiff’s testimony to determine the obviousness or apparentness
of the alleged hazard.

See Butler v. Int’l Paper Co., 636

Fed.Appx. 216, 219 (5th Cir. 2016)(per curiam)(noting that the
Louisiana Supreme Court has relied upon the plaintiff’s testimony
or photographs of the scene to establish that a condition is open
and obvious and further noting that the plaintiff testified that
he was aware of the wood chips and debris on the stairs, which
“leads to the inference that the wood chips would have been ‘open
and obvious’ to others using the stairs.”); see also Rodriquez v.
Dolgencorp, LLC, 2014-1725 (La. 11/14/14), 152 So.3d 871 (per
curiam)(reversing denial of summary judgment where defendant had
established that the plaintiff was aware of the shopping cart in
the grocery store parking lot, noting that the plaintiff admitted
in her deposition that she saw the shopping cart that caused her
fall; because the plaintiff failed to come forward with evidence
to show that she would be able to meet her burden at trial to show
a duty on the part of the defendant, summary judgment in favor of
the defendant was warranted).

Simply put, the only evidence in

the summary judgment record is that the alleged defect -- the hose
-- was obvious and apparent.

Peters could have avoided stepping
12

on it.

There is no evidence in the record that would support a

finding that the defendants owed a duty to warn the plaintiff about
the presence of the hose because the only evidence in the record
refutes the plaintiff’s theory that the presence of the hose was
an unreasonably dangerous hazard that was hidden and concealed.
The plaintiff’s own testimony establishes that the complained-of
condition was open and obvious to a reasonably prudent person
exercising reasonable care in the circumstances.
The plaintiff nevertheless seeks to manufacture fact issues
concerning the slippery condition of the walkway, or whether the
time of night and poor lighting in the area impeded visibility of
the hose.

Considering the condition of the walkway, the plaintiff

does not dispute that the hose, not the condition of the walkway,
caused his fall; the condition of the walkway is therefore not
material, nor is the dispute he seeks to create some fact issue.
And Peters’ argument regarding lighting fails as unsupported and
speculative: the plaintiff himself admits that he saw the hose,
walked over to it, and deliberately stepped on it; the plaintiff
submits no evidence that the lighting was poor such that it impeded
his, or would have impeded a reasonably prudent person’s, ability
to see the hose.

Indeed, the defendants point out that the

photographs attached to the plaintiff’s papers show that there are

13

gas lamps, ground lights, lights on the underside of the awning,
and street lights in the precise area of the plaintiff’s accident.
Because

the

plaintiff

has

failed

to

present

evidence

demonstrating that he would meet his burden of proof at trial on
an

essential

defendants,

element

the

of

defendants

his

negligence

are

entitled

claims
to

against

summary

the

judgment.

Accordingly, IT IS ORDERED that the defendants’ motion for summary
judgment is GRANTED; the plaintiff’s claims are hereby dismissed
with prejudice.
New Orleans, Louisiana, June 28, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

14