Badeaux v. Louisiana-I Gaming et al
ORDER AND REASONS granting 32 Motion for Summary Judgment for the reasons set forth in document. Signed by Judge Sarah S. Vance on 11/18/2021. (mm)
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 1 of 17
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BARRY J. BADEAUX
LOUISIANA-I GAMING, ET AL.
SECTION “R” (3)
ORDER AND REASONS
Before the Court is defendant Louisiana–I Gaming’s motion for
summary judgment. 1 Plaintiff Barry Badeaux opposes the motion. 2 Because
there is no genuine dispute of material fact as to defendant’s liability, the
Court grants defendant’s motion.
This case arises from a fall in the parking lot of Boomtown Casino New
Plaintiff Barry Badeaux alleges that, around 3:00 a.m. on
November 30, 2019, while exiting his vehicle and walking toward the casino,
he tripped on a sprinkler head, and fell to the ground, sustaining injuries. 4
R. Doc. 32.
R. Doc. 42.
R. Doc. 1-2 at 1-2.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 2 of 17
Plaintiff alleges that the location and design of the exposed sprinkler head
created an unreasonably dangerous condition. 5
Plaintiff sued Louisiana-I Gaming, 6 and its insurer, Pinnacle National
Insurance Company, for damages stemming from his injuries in the casino
parking lot. 7 Louisiana-I Gaming now moves for summary judgment on the
basis that the sprinkler head was an “open and obvious” condition, and that
plaintiff cannot establish that the sprinkler head was the cause-in-fact of his
accident. 8 Plaintiff opposes the motion. 9 The Court considers the parties’
Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter 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 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
Id. at 2-3.
In plaintiff’s petition for damages, he represents that Louisiana-I
Gaming “owns and/or operates the Boomtown Belle Casino
Westbank.” Id. at 1.
R. Doc. 1 ¶ 1.
R. Doc. 32-2.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 3 of 17
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “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 nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
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 Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with evidence sufficient to demonstrate the “existence of a
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 4 of 17
genuine dispute of material fact,” or by “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
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
The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element 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)).
Plaintiff sued Louisiana-I Gaming for negligence under both
Louisiana’s premises liability statute, La. Civ. Code art. 2317.1, and the
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 5 of 17
Louisiana Merchant Liability Act, La. Rev. Stat. Ann. § 9:2800.6. 10
Louisiana’s premises liability statute states in pertinent part:
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that
he knew or, in the exercise of reasonable care, should have known
of the ruin, vice, or defect which caused the damage, that the
damage could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care.
La. Civ. Code art. 2317.1. Under this statute, plaintiff bears the burden of
proving: (1) that the defendant knew, or in the exercise of reasonable care,
should have known of the defect which caused the damage, (2) that the
damage could have been prevented by the exercise of reasonable care, and
(3) that defendant failed to exercise reasonable care. Id.
Louisiana Revised Statute § 9:2800.6 governs the “[b]urden of proof
in claims against merchants” when a plaintiff alleges that the merchant’s
negligence caused the plaintiff to be injured on the merchant’s premises. A
casino is considered a merchant for purposes of this statute. Richardson v.
La.-I Gaming, 55 So. 3d 893, 895 (La. Ct. App. 2010). To prove a negligence
claim under this statute, the plaintiff must show that (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
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 6 of 17
constructive notice of the condition which caused the damage, before the
occurrence, and (3) the merchant failed to exercise reasonable care. La. Rev.
Stat. Ann. § 9.2800.6.
Under either theory of liability, a plaintiff must prove that: “(1) the
defendant either owned or had care, custody, or control of the thing in
question; (2) the thing was a cause-in-fact of the plaintiff’s injuries; and (3)
the thing presented an unreasonable risk of harm.” Llorence v. Broadmoor
Shopping Ctr., Inc., 76 So. 3d 134, 137 (La. App. 3 Cir. 2001) (quoting Bethea
v. Great Atl. & Pac. Tea Co., 22 So. 3d 1114, 1115 (La. App. 4 Cir. 2009)).
Here, defendant argues that plaintiff cannot establish a genuine issue
of material fact as to whether the sprinkler head created an unreasonable risk
of harm, because the sprinkler was “open and obvious.” 11 In determining
whether a defect presents an unreasonable risk of harm, courts should
inquire whether the defect is “open and obvious to all who encounter it.”
Broussard v. State ex rel. Off. of State Bldgs., 113 So. 3d 175, 183-85 (La.
And when determining whether a paving defect is “open and
obvious,” courts should specifically consider the size of the defect, its
location, and the accident history of the defect. Leonard v. Sam’s West, Inc.,
No. 11-846, 2013 WL 121761, at *3 (E.D. La. Jan. 9, 2013) (citing Reed v. Wal-
R. Doc. 32-2 at 8-14, 17-18.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 7 of 17
Mart Stores, Inc., 708 So. 2d 362, 363-64 (La. 1998)). If the defect is “open
and obvious,” it is likely not unreasonably dangerous, because “the
probability of injury is low and the thing’s utility may outweigh the risks
caused by its defective condition.” Broussard, 113 So. 3d at 184; see also
Thibodeaux v. Home Depot U.S.A., Inc., 816 F. App’x 988, 990 (5th Cir.
2020) (per curiam) (“[A] condition does not present an unreasonable risk of
harm when it is an open and obvious risk.”).
“If the facts of a particular case show that the complained-of condition
should be obvious to all, the condition may not be unreasonably dangerous,
and the defendant may owe no duty to the plaintiff.” Eisenhardt v. Snook, 8
So. 3d 544, 544 (La. 2009) (per curiam). This is because, under Louisiana
law, a defendant does not have a duty to protect against “that which is
obvious and apparent.” Broussard, 113 So. 3d at 184. This is true under both
premises and merchant liability. See, e.g., Schultz v. Rouse’s Enters., L.L.C.,
No. 20-2830, 2021 WL 2533025, at *3 n.27 (E.D. La. June 21, 2021) (noting
that the “open and obvious” doctrine “applies with equal force” under both
La. Civ. Code art. 2317.1 and La. Rev. Stat. § 9:2800.6). “[I]n a trip and fall
case, the duty is not solely with the landowner,” but is shared with the
pedestrian who “has a duty to see that which should be seen[,] and is bound
to observe whether the pathway is clear.” Babino v. Jefferson Transit, 110
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 8 of 17
So. 3d 1123, 1126 (La. App. 5 Cir. 2013); Hutchinson v. Knights of Columbus,
Council No. 5747, 866 So. 2d 228, 235 (La. 2004) (“A landowner is not liable
for any injury which 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.”).
As an initial matter, plaintiff argues that the question of whether the
sprinkler head was an open and obvious hazard is a question of fact to be
decided by a factfinder, not by the Court on summary judgment. 12 But
Louisiana case law makes clear that summary judgment may be appropriate
“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.” Allen v. Lockwood, 156 So. 3d 650, 653 (La. 2015) (per curiam);
see also Leonard, 2013 WL 121761, at *3 (“[I]n the summary judgment
context, Louisiana courts have not hesitated to grant summary judgment 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.”).
appropriateness of summary judgment in this case thus turns on whether
R. Doc. 42 at 4.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 9 of 17
plaintiff has created an issue of material fact as to whether the sprinkler was
In moving for summary judgment, defendant has produced evidence,
including plaintiff’s deposition, 13 affidavits, 14 photographs, 15 security
surveillance video footage, 16 and an incident report, 17 to support its
argument that no genuine issue of material fact exists as to whether the
sprinkler head was open and obvious. Defendant also points to the lack of
reported accidents related to the sprinkler. 18 In response, plaintiff relies on
his own deposition testimony, 19 additional photographs, 20 and the testimony
of Leonard Quick, a forensic engineer, to argue that the sprinkler was not
sufficiently open and obvious, and could therefore present an unreasonable
risk of harm.
Louisiana courts recognize that “[s]urfaces, such as curbs and
sidewalks, are often irregular.” Thibodeaux, 816 F. App’x at 991 (citing Reed,
708 So. 2d at 363). Applying this principle, courts have concluded that in
R. Doc. 32-4.
R. Doc. 32-5 (Affidavit of Harold McKenzie); R. Doc. 32-7 (Affidavit
for Jeannine Richert).
R. Doc. 32-8; R. Doc. 32-11.
R. Doc. 32-6.
R. Doc. 32-11.
R. Doc. 32-1 ¶ 20.
R. Doc. 42-3.
R. Doc. 42-2.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 10 of 17
certain circumstances, variances in the surfaces of parking lots, such as
curbs, ledges, or potholes, do not create an unreasonable risk of harm. See,
e.g., Llorence, 76 So. 3d at 138 (affirming the trial court’s finding that a
pothole in the grocery store parking lot was not an “unreasonably harmful
condition”); Cordell v. Tanaka, No. 17-285, 2018 WL 301331, at *5 (La. App.
1 Cir. Jan. 4, 2018) (granting summary judgment for defendants because a
change in color of the ledge made it sufficiently “open and obvious”); Nugent
v. Car Town of Monroe, Inc., 206 So. 3d 369, 376-77 (La. App. 2 Cor. 2016)
(finding that a 7.5-inch elevation change in the sidewalk did not create an
Louisiana courts also recognize that grounds adjacent to a sidewalk,
which are not intended to be used as a walkway, are not “expected to have a
completely ‘table-top’ smooth surface.” Wood v. Cambridge Mut. Fire Ins.
Co., 486 So. 2d 1129, 1133 (La. App. 2 Cir. 1986). “Yards can and usually do
have irregularities and minor obstacles such a depressions, drains, faucets,
trees, shrubs, and tree roots[,] and are not intended or designed for use as a
walkway without observation and care as are sidewalks and designated
walkways.” Id. Accordingly, courts have determined that alleged defects in
landscaped areas, not designated as walkways, are open and obvious, and
therefore do not present an unreasonable risk of harm to people exercising a
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 11 of 17
reasonable amount of care. See, e.g., Alexander v. City of Lafayette, 584 So.
2d 327, 328-29 (La. App. 3 Cir. 1991) (finding that an exposed tree root on
the ground adjacent to the sidewalk did not present an unreasonable risk of
harm); Grossie v. MGM Properties, Inc., 269 So. 3d 921, 926 (La. App. 3 Cir.
2019) (holding that wood landscaping and metal stripping adjacent to a
walkway were open and obvious); Watts v. Scottsdale Ins. Co., 43 So. 3d 266,
269-70 (La. App. 2 Cir. 2010) (affirming a trial court’s finding that a dark
brown/green metal strip that lined a shady flower bed was open and obvious
and thus not an unreasonably dangerous condition).
Here, the Court finds that plaintiff’s evidence is not sufficient to create
a genuine issue of fact as to whether the sprinkler head was unreasonably
dangerous. As shown by photographs taken the night of the accident, 21 the
sprinkler head was raised seven inches above the ground and was next to a
curb painted bright yellow, making it clearly visible. And despite plaintiff’s
assertions otherwise, 22 the contemporaneous photographs show that the
sprinkler head was unobstructed by any bushes in the area. 23 It is also
undisputed that the area was well lit by streetlights, and plaintiff testified
R. Doc. 32-11 at 10-13.
R. Doc. 32-4 at 46:5-22 (Badeaux’s Deposition) (noting that the
pictures from the night of the accident were “not accurate . . . because
there were bushes around the sprinkler head”).
R. Doc. 32-11 at 10-13.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 12 of 17
that even at 3:00 a.m. the lights were shining close enough to his vehicle that
he could see where he was walking. 24 Moreover, when asked if he had seen
the sprinkler before his fall, plaintiff admitted that he had not, because he
did not “look down to see there wasn’t anything in the landscaping.” 25
The Court additionally considers whether the size, location, and
accident history of the sprinkler head create an issue of material fact as to
whether the sprinkler head was open and obvious. See Leonard, 2013 WL
121761, at *3. First, the sprinkler head is approximately seven inches above
the ground. 26 Plaintiff testified that the sprinkler head was that height the
night of his accident. 27 Courts applying Louisiana law have held that similar
height deviations are open and obvious, and are “easily observed and
appreciated in the exercise of reasonable care.” See, e.g., Brown v. United
States, 861 F. Supp. 539, 542 (W.D. La. 1994) (“An exposed tree root,
especially one that is raised three to four inches above the ground, is an
obvious . . . and [an] easily avoidable risk.”); Nugent, 206 So. 3d at 371-72
R. Doc. 32-4 at 62:16-24 (Badeaux’s Deposition).
Id. at 61:13-25.
R. Doc. 32-1 ¶ 13 (Statement of Uncontested Facts); R. Doc. 42-1 ¶ 13;
see also R. Doc. 32-4 at 48:2-6 (Badeaux’s Deposition) (agreeing that
the sprinkler head protruded that far above the ground when his fall
occurred, and describing the sprinkler head’s height as being “high”
and “way up”).
R. Doc. 32-4 at 48:2-5 (Badeaux’s Deposition).
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 13 of 17
(holding that a slab that was 7.5 inches above the pavement was “open and
Second, defendant represents that prior to plaintiff’s accident, there
had never been a reported fall concerning any of the sprinkler heads in its
parking lot. 28 This lack of reported accidents also supports a finding that the
sprinkler head was not unreasonably dangerous. See Williams v. Leonard
Chabert Med. Ctr., 744 So. 2d 206, 210 (La. App. 1 Cir. 1999) (“The lack of
prior accidents is an important factor to be considered in evaluating the risk
Finally, the location of the sprinkler head further indicates that it is not
an unreasonably dangerous condition. It is uncontested that the sprinkler
head is located “inside the landscaping area . . . next to the curb.” 29 Given
that the island-like area was made up of bushes, trees, and mulch,
surrounded by raised curbing, it was clearly not designed to be a walkway. 30
However, plaintiff contends that, because his “particular parking spot sits
directly adjacent to the garden area, a patron must walk through the garden
R. Doc. 32-1 ¶ 20; R. Doc. 32-9 ¶ 6 (Affidavit of Ross Jordan) (“[T]o his
knowledge, in the years that Boomtown Casino New Orleans had been
in operation, there has never been any reported problems with a
pedestrian and the inground sprinkling system in the landscaping that
borders the parking area . . . .”).
R. Doc. 32-1 ¶ 13 (Statement of Uncontested Facts); R. Doc. 42-1 ¶ 13.
See R. Doc. 32-2 at 12.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 14 of 17
area . . . with this exposed sprinkler head . . . to enter the Casino.” 31 Plaintiff
supports his assertion with the report of Leonard Quick, a forensic engineer,
who similarly contends that Mr. Badeaux “was forced to step upon the
immediately adjacent curb surrounding/bordering the landscaped area, and
into and through the landscaped area, due to defective design and/or
construction of the parking lot segment and associated dimensions of the
The Court finds that Mr. Quick’s report does not create a genuine issue
of material fact or otherwise demonstrate that the location of the sprinkler
made it an unreasonably dangerous condition. See Williams v. Lib. Mut.
Fire Ins. Co., 217 So. 3d 421, 426-27 (La. App. 1 Cir. 2017) (“An expert’s
opinion that is conclusory, . . . and which is based on little or no factual
support does not create a genuine issue of material fact.”). Mr. Quick
emphasizes that, based on his measurements, plaintiff had 16.45 inches to
walk between his vehicle and the curb, which he represents is “inadequate”
and “forced Mr. Badeaux to step up onto the curb and landscaped area.” 33 As
an initial matter, it is unclear why this distance is “inadequate.” Mr. Quick
attaches various ordinances, but does not allege that defendant’s parking
R. Doc. 42 at 4.
R. Doc. 32-8 at 2.
Id. at 4.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 15 of 17
space violated any specific ordinances, building codes, or industry standards.
See id. (finding that an expert’s report “was conclusory with little or no
factual report” where the expert “refer[ed] to many different safety codes”
but did “not say how the curb or parking lot at issue violated any of the codes”
or even if the codes were “applicable to [the] building”). Far from citing
specific violations, Mr. Quick’s report instead tries to argue that even if the
parking stall complied with industry standards and Jefferson Parish parkingspace requirements, it would still be unreasonably dangerous. 34 Further,
defendant has presented evidence that its parking lot was in compliance with
all codes and regulations. The “facilities and marine manager” at Boomtown
Casino stated in an affidavit that, to his knowledge, “the design and
construction of the hotel parking lot . . . complied with every ordinance, law
and industry standard at the time of construction.” 35
Additionally, Mr. Quick fails to explain why 16.45 inches between
plaintiff’s car and the curb did not provide adequate room for Mr. Badeaux
See id. at 2-3 (“Even if the parking lot stalls complied with industry
standards and Jefferson Parish parking space requirements
dimensionally and with required striping designations, it is not only
known but also expected that pedestrians will step up and walk
upon/across landscaped areas within and long perimeters of parking
R. Doc. 32-9 ¶ 5 (Affidavit of Ross Jordan).
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 16 of 17
to walk between his car and the curb. 36 The Court finds that the photographs
attached to his report support the opposite conclusion, and show that
plaintiff had room to walk on the concrete next to his car without having to
step onto the curb, much less the landscaping. 37 And even assuming that it
was too narrow for plaintiff to walk on the surface of the parking lot, the curb
on which plaintiff walked extends past the length of his car. 38 Accordingly,
plaintiff did not have to walk on the curb after he cleared the back end of his
car. Plaintiff could have stepped down once he passed the back of his car,
and been completely off the curb by the time he reached the sprinkler head,
which sits at the far end of the curb. In sum, even taking plaintiff and Mr.
Quick at their word as to the narrow gap between plaintiff’s car and the curb,
this was not a constraint near the location of the sprinkler head. Therefore,
the Court finds that the location of the sprinkler head was not unreasonably
dangerous, and that Mr. Quick’s conclusory statements to the contrary do
not create a dispute of material fact.
For these reasons, considering the factors outlined by Louisiana law,
the Court finds that record evidence establishes that the sprinkler head was
open and obvious. Therefore, defendant had no duty to protect plaintiff from
R. Doc. 32-8 at 2-3.
R. Doc. 32-8 at 20 (Photograph Nos. 23 & 24).
See R. Doc. 32-11 at 10-13.
Case 2:20-cv-02348-SSV-DMD Document 56 Filed 11/18/21 Page 17 of 17
the sprinkler head. Because plaintiff has not met his burden to prove that
the defect was unreasonably dangerous, the Court need not address the issue
of causation. See Lester v. Valero Refining-Meraux, LLC, No. 14-80, 2015
WL 729703, at *3 n.1 (E.D. La. Feb. 19, 2015) (refusing to address the
remaining elements of custody, knowledge, and causation because the court
granted defendant’s motion for summary judgment on plaintiff’s inability to
prove that the condition posed an unreasonable risk).
Accordingly, the Court GRANTS defendant’s motion for summary
judgment. Plaintiff’s complaint is DISMISSED.
New Orleans, Louisiana, this _____ day of November, 2021.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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