United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. ELDMAN, UNITED STATES DISTRICT JUDGE
the Court is the defendants' motion for summary judgment.
For the reasons that follow, the motion is GRANTED.
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
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 of hours and drank three
more beers. Peters returned to his hotel room at around 1:00
or 1:30 a.m. Hungry, he left the hotel to find something to
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. 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.
Peters sued Jazz Casino Company, LLC (the hotel operator) and
JCC Fulton Development, LLC (the hotel owner) in 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.
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).
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 an
essential element of his case. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). 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). "[T]he nonmoving party cannot defeat summary
judgment 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).
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
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 ...