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Gomes v. Harrah, Inc.

United States District Court, E.D. Louisiana

December 15, 2017

SEDGIE GOMES
v.
HARRAH, INC., ET AL.

         SECTION: “J” (1)

          ORDER AND REASONS NATURE OF MOTION AND RELIEF REQUESTED

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Jazz Casino Company, LLC's Motion for Summary Judgment. (Rec. Doc. 15.) Plaintiff, Sedgie Gomes, filed an opposition to the motion (Rec. Doc. 17) and Defendant filed a reply (Rec. Doc. 19). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.

         FACTS AND PROCEDURAL BACKGROUND

         This is a premises liability action in which Plaintiff alleges that she fell and sustained injuries due to an alleged sidewalk defect on the property of Harrah's New Orleans Hotel on October 30, 2015. On the day of the incident, Plaintiff was celebrating her birthday in Harrah's Casino with her sister. After a couple hours at the casino, Plaintiff and her sister crossed Poydras Street to get to the parking garage. Plaintiff stepped up from the street and proceeded to walk along the brick sidewalk near Harrah's Hotel. As she was walking, Plaintiff stepped onto a slightly depressed area of the sidewalk and fell causing injuries to her knees and back. It is undisputed that the deviation at issue measured a depth of less than a one-half (½) inch. Plaintiff insists that she did not trip, rather, she stepped into the depressed spot, lost her balance, and fell.[1]

         On October 3, 2016, Plaintiff filed suit in the Civil District Court for the Parish of Orleans. Plaintiff named Harrah, Inc., Harrah's New Orleans Investment Company, Harrah's New Orleans Management Company, and Jazz Casino Company, LLC d/b/a Harrah's New Orleans Casino and Hotel as Defendants. Defendants removed the case to this Court on December 15, 2016. (Rec. Doc. 1.) On March 15, 2017, the Court dismissed Harrah, Inc. without prejudice after counsel failed to appear for the Court's call docket. (Rec. Doc. 7.) On September 22, 2017, the Court granted Plaintiff's Motion to Dismiss Without Prejudice relating to all claims against Harrah's New Orleans Investment Company and Harrah's New Orleans Management Company. (Rec. Doc. 14.) Thus, Jazz Casino Company, LLC, the operator of Harrah's Hotel, is the only remaining Defendant in this matter.

         On October 10, 2017, Jazz Casino Company, LLC filed the instant Motion for Summary Judgment on the grounds that Plaintiff could not meet her burden of proving that the sidewalk condition presented an unreasonable risk of harm. (Rec. Doc. 15.) Plaintiff filed an opposition to the motion (Rec. Doc. 17) and Defendant filed a reply (Rec. Doc. 19). The motion is now before the Court on the briefs and without oral argument.

         PARTIES' ARGUMENTS

         Defendant moves for summary judgment arguing that Plaintiff cannot prove that the sidewalk depression presented an unreasonable risk of harm under La. R.S. 9:2800.6, otherwise known as the Louisiana Merchant Liability Act. Defendant states that Louisiana courts have established that a sidewalk condition, like the one at issue, is not unreasonably dangerous. Specifically, Defendant submits the following: (1) the risk of injury was low because the depression was small (less than ½ inch), (2) Plaintiff is the only person to report an incident at that location, (3) the location is in a highly trafficked area, (4) the utility of sidewalks outweighs the minimal hazard posed by the alleged defect, and (5) the cost to repair and maintain all such variances is prohibitive. In addition, Defendant argues that the sidewalk depression was open and obvious and thus, could not have presented an unreasonable risk of harm. Defendant avers that because the condition was open and obvious, and therefore not unreasonably dangerous, it had no legal duty to Plaintiff to fix or warn of the condition.

         Plaintiff argues that there are genuine issues of material fact that preclude summary judgment. First, Plaintiff submits the opinion of a safety expert and civil engineer, Neil B. Hall, stating that “the walking surface shown in the photographs is not planar, flush or even . . . and constitutes a tripping hazard.” (Rec. Doc. 17-3.) Second, Plaintiff points to her deposition testimony where she stated that she did not see the sidewalk depression despite the fact that she observed her surroundings before she fell. Third, Plaintiff argues that because the sidewalk depression was large enough for her to fit her foot into and caused her to lose her balance and fall, the sidewalk was in an unreasonably dangerous condition. Plaintiff argues that a missing or misaligned brick could easily be replaced, therefore, the condition should have been corrected which would have prevented her injury. Alternatively, Plaintiff contends that the instant motion is premature because discovery is ongoing.

         LEGAL STANDARD

         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); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, a 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, 1264-65 (5th Cir. 1991). 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 ...


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