United States District Court, E.D. Louisiana
ORDER & REASONS
CARL J. BARBIER, District Judge.
Before the Court is a Rule 56 Motion for Summary Judgment (Rec. Doc. 17) filed by Defendant, Hilton Management, LLC, ("Hilton") (erroneously identified as Hilton New 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 Hotel parking garage. (Rec. Doc. 1-2) Plaintiff averred that Hilton "created the above-described hazardous condition and caused the area where [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 prejudice. After a brief continuance, Plaintiff opposed the motion for summary judgment on July 22, 2015. (Rec. Doc. 23)
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 over it and then fell while doing so." (Rec. Doc. 17-1) Because the railing was "open and obvious, seen, anticipated and purposefully encountered by plaintiff, " Defendant argues that it was not a 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 plaintiff's clothing and/or leg which caused him to fall." (Rec. Doc. 23, p. 11)
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 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 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 ...