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Peters v. Jazz Casino Company, LLC

United States District Court, E.D. Louisiana

June 28, 2017

JONATHAN PETERS
v.
JAZZ CASINO COMPANY, LLC,

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. ELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is the defendants' motion for summary judgment. 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 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 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 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 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).

         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 ...

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