United States District Court, E.D. Louisiana
ORDER AND REASONS NATURE OF MOTION AND RELIEF
J. BARBIER UNITED STATES DISTRICT JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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.
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.
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.
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