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Weaver v. Horseshoe Entertainment

United States District Court, W.D. Louisiana, Shreveport Division

January 18, 2018

KEVIN WEAVER
v.
HORSESHOE ENTERTAINMENT

          MEMORANDUM RULING

          Mark L. Hornsby, U.S. Magistrate Judge

          Introduction

         Kevin Weaver (“Plaintiff”) slipped and fell in a bathroom at the Horseshoe Hotel and Casino in Bossier City, Louisiana. Plaintiff managed to catch himself before he hit the floor, but he alleges that he injured his knee during the incident. Plaintiff filed suit against Horseshoe in state court, and Horseshoe removed the case based on diversity jurisdiction.

         The parties filed written consent to have the case decided by the undersigned Magistrate Judge, and the matter was referred pursuant to 28 U.S.C. § 636(c). Before the court is Horseshoe's Motion for Summary Judgment (Doc. 17) that challenges Plaintiff's ability to present evidence that Horseshoe either created or had actual or constructive notice of the condition that caused Plaintiff to slip. For the reasons that follow, the motion will be granted.

         Applicable Louisiana Law

         Under Louisiana law, a merchant owes a duty to all persons who use its premises “to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition.” La. R.S. 9:2800.6(A). Regardless of a merchant's affirmative duty to keep the premises in a reasonably safe condition, a merchant is not the insurer of the safety of his patrons. Noel v. Target Corp. of Minn., 2007 WL 2572308, *1 (W.D. La. 2007), citing Jones v. Brookshire Grocery Co., 847 So.2d 43, 49 (La.App. 2d Cir. 2003). To impose liability on a merchant under the statute, the claimant has the burden of proving all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

La. R.S. 9:2800.6(B). Horseshoe's motion challenges Plaintiff's ability to present evidence to support the emphasized elements of the statute.

         Summary Judgment

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). A fact is “material” if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). A dispute is “genuine” if there is sufficient evidence so that a reasonable jury could return a verdict for either party. Anderson, supra; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000).

         The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986). If the moving party carries his initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of a genuine dispute of a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1355-56 (1986).

         Relevant ...


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