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Labarrera v. Boyd Gaming Corp.

Court of Appeal of Louisiana, Third Circuit

January 30, 2014

CLAUDINE LABARRERA, ET UX.
v.
BOYD GAMING CORPORATION, ET AL

Page 1019

[Copyrighted Material Omitted]

Page 1020

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2009-4096. HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE.

AFFIRMED, AS AMENDED.

David F. Bienvenu, Simon, Peragine, New Orleans, LA, COUNSEL FOR THIRD PARTY APPELLEE: Lagasse, Inc., AmRep, Inc.

Steven Broussard, Attorney at Law, Sulphur, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS: Claudine Labarrera, Alberto Labarrera.

Robert Hugh Murphy, John Herr Musser, V, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, COUNSEL FOR DEFENDANTS/APPELLEES: Boyd Gaming Corp. d/b/a Delta Downs, Willie Patin.

Aaron Broussard, Broussard & Hart, Lake Charles, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS: Claudine Labarrera, Alberto Labarrera, Delta Downs Racetrack & Casino, Boyd Gaming Corp.

Court composed of John D. Saunders, Shannon J. Gremillion, and Phyllis M. Keaty, Judges. Gremillion, J., concurs with written reasons.

OPINION

Page 1021

[13-629 La.App. 3 Cir. 1] SAUNDERS, Judge.

This case involves a patron who slipped and fell in the lobby of a racetrack, casino, and hotel. Video evidence shows a custodial employee spraying a cleaning substance on a dust mop prior to dust mopping the racetrack casino & hotel lobby. Thereafter, the patron is seen walking in the area where the spray was administered, slipping, and falling.

The patron's counsel discovered ex parte communication between the racetrack, casino, and hotel's counsel and a treating physician while that treating physician was being deposed. Thereafter, the trial court ordered that the physician's deposition could not be used at trial, that the physician's deposition be retaken, and that no mention of the first deposition be made at trial. Thereafter, the physician's second deposition is admitted into evidence at trial.

Following the trial on the merits, the jury found that the patron was 42% at fault for the accident and awarded her past medical expenses and general damages. The patron and her husband have appealed.

FACTS AND PROCEDURAL HISTORY:

On April 26, 2009, Claudine Labarrera and her husband, Alberto Labarrera, (Plaintiffs) were guests at Delta Downs Racetrack, Casino, and Hotel (Delta). Early that morning, video surveillance depicts Willie Patin, a custodial employee of Delta, spraying a cleaning substance on his dust mop prior to performing his task of dust mopping the lobby.

The substance that Patin was shown spraying onto his dust mop is designed to enhance the dust mop's performance. One of the ingredients in the substance is oil. When present on certain flooring, such as wood in this case, the substance can cause the floor to become slippery.

[13-629 La.App. 3 Cir. 2] Shortly after Patin is shown spraying the substance on his dust mop, video surveillance shows Claudine slipping and falling while walking with Alberto. The video shows that Claudine slipped and fell in the location where Patin sprayed the performance-enhancing substance onto his dust mop.

Page 1022

Plaintiffs brought a personal injury action against Patin and Boyd Racing, L.L.C., d/b/a Delta Downs Racetrack, Casino, and Hotel (collectively " Boyd" ) alleging that Claudine was injured in her slip and fall and that Alberto suffered a loss of consortium as a result of Claudine's injury. Boyd answered and alleged that Claudine was contributorily negligent in causing the accident.

Claudine was treated for pain in multiple areas of her body by numerous physicians. During the deposition of one of her treating physicians, Dr. Kim Gargas, Plaintiffs' counsel learned that an employee of Boyd's counsel sent Dr. Gargas a cover letter and a selection of Claudine's medical records for him to review in anticipation of his deposition. Plaintiffs filed a motion in limine to prevent Dr. Gargas' deposition from being admitted into evidence at trial. The trial court ordered that Dr. Gargas' first deposition could not be used at trial, that Dr. Gargas' deposition be retaken, and that no reference to Dr. Gargas' first deposition, nor the fact that it had to retaken, was to be made in front of the jury.

A jury trial commenced on December 3, 2012, and continued for two weeks. Prior to the case going to the jury for consideration, Plaintiffs filed a motion for directed verdict on the issue of comparative negligence. The trial court denied this motion. After deliberations, the jury returned a verdict allocating 58% fault for causing Claudine's accident to Boyd and 42% to Claudine. The judgment awarded Plaintiffs, inter alia, $39,851.80 for past medical expenses, $0.00 for future medical expenses, $10,000.00 for past and future loss of enjoyment of life, $30,000.00 for past and future physical pain and suffering, $15,000.00 for past and [13-629 La.App. 3 Cir. 3] future emotional distress, and $0.00 for permanent disability for Claudine's injuries she sustained in her slip and fall.

Plaintiffs appealed the judgment. They have alleged the following:

ASSIGNMENTS OF ERROR:

1. The [t]rial [c]ourt's denial of Plaintiffs' motion for directed verdict on contributory negligence regarding Claudine's shoes.
2. The [j]ury finding contributory negligence.
3. The [t]rial [c]ourt's failure to exclude a treating physician who changed his opinions after having ex parte communications with a defendant and reviewed medical records from other providers without authorization or notice.
4. The [j]ury's failure to award proven past and future medical expenses.
5. The [j]ury's failure to award fair and adequate general damages.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In their first assignment of error, Plaintiffs contend that the trial court's denial of their motion for directed verdict on comparative negligence regarding Claudine's shoes was in error. Plaintiffs assert in their second assignment of error that the jury erred in finding that Claudine was comparative negligent in causing her accident. As both assignments deal with potential comparative negligence by Claudine, we will address them under one heading.

" [T]he applicable standard of review on a motion for directed verdict is whether the evidence in the record is such that a reasonable person could not reach a verdict to the contrary." Richard v. Artigue, 11-1471, p. 4 (La.App. 3 Cir. 4/4/12), 87 So.3d 997, 1001 (citing Hebert v. BellSouth Telecomms., Inc., 01-223

Page 1023

(La.App. 3 Cir. 6/6/01), 787 So.2d 614). Similarly, the standard to review of an allocation of fault by a factfinder is that of the manifest error. Richard, 87 So.3d 997 (citing Duncan v. Kansas City S. Ry. Co., 00-66 (La. 10/30/00), 773 So.2d 670. [13-629 La.App. 3 Cir. 4] Prior to negating a finding of fact under the manifest error standard, " an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous." Bonin v. Ferrellgas, Inc., 03-3024, pp. 6-7 (La. 7/2/04), 877 So.2d 89, 94-95 (citing Stobart v. State through Dep't. of Transp. and Dev., 617 So.2d 880 (La.1993)).

In the case before us, Boyd asserted fault on the part of Claudine in each of the numerous answers it submitted to Plaintiffs' petition and subsequent amendments. A party asserting comparative negligence has the burden to prove that fact. McCarthy v. Entergy Gulf States, Inc., 11-600 (La.App. 3 Cir. 12/7/11), 82 So.3d 336, writ denied, 12-72 (La. 3/9/12), 84 So.3d 553. As such, when reviewing the trial court's denial of Plaintiffs' motion for directed verdict, we must look to the record to determine whether a reasonable person could reach a verdict contrary to finding that Boyd failed to carried its burden to prove that Claudine was contributorily negligent. Stated more clearly, we must ask whether a reasonable person could find that Boyd carried its burden to prove that Claudine had any comparative negligence. Similarly, under assignment of error number two, we must look to the record to determine whether a reasonable factual basis exists for the jury's finding that Boyd carried its burden to prove that Claudine was contributorily negligent, ...


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