APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 759-246, DIVISION
"P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, LINDA CANGELOSI Linda
COUNSEL FOR DEFENDANT/APPELLEE, TREASURE CHEST CASINO, L.L.C.
Diane S. Mitnik
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and Marion F. Edwards, Judge Pro Tempore
F. EDWARDS, JUDGE PRO TEMPORE JUDGE.
a personal injury action for damages sustained in a slip and
fall near the entrance of the Treasure Chest Casino, L.L.C.
(Treasure Chest). The judgment on appeal is the grant of
summary judgment in favor of defendant/appellee, Treasure
Chest. For the reasons set forth herein, we affirm that
AND PROCEDURAL HISTORY
Linda Cangelosi, was walking with her son from the parking
lot to the entrance of the Treasure Chest Casino on December
16, 2015. The fall occurred under the porte cochere, an
outdoor open-ended tent that covers a portion of the roadway
leading to and from the walkway entrance of the casino. A
video of the fall shows that Ms. Cangelosi slipped and fell
as she stepped from the roadway onto the walkway. The video
also shows the ground was very wet, with puddles in both the
roadway and the walkway.
Cangelosi testified in her deposition that on the day of the
accident, she went to the casino at about 6:00 p.m. with her
son and a friend. Ms. Cangelosi explained that she and her
son went there about three times a month to listen to music.
This had been their custom for a "couple of years."
On the day of the accident, it had rained all day and the
ground was wet. Ms. Cangelosi arrived by vehicle under the
porte cochere. It appears that they took advantage of the
valet service provided by Treasure Chest. Ms. Cangelosi got
out of the vehicle and walked across two traffic lanes. Then,
as she stepped onto the adjacent walkway, she slipped in a
puddle. One foot went out in front and the other went back,
causing her to fall and injure her knee, hip, back and arm.
Treasure Chest employees came out to assist and an emergency
medical team was called. Ms. Cangelosi declined an offer to
be taken to a hospital and went into the casino. About 45
minutes later, when she began experiencing pain in her right
hip, she left the casino and went home.
Cangelosi stated that she consulted Dr. Van Wormer the next
day and treated with him for about a year. On Dr.
Wormer's advice, Ms. Cangelosi consulted a neurologist
who prescribed pain medication for her back pain. Since the
accident, Ms. Cangelosi has been in pain and now requires the
use of a walker.
Cangelosi filed this action for damages on March 24, 2016.
Upon completion of discovery, Ms. Cangelosi filed a motion
for summary judgment on July 3, 2017. On July 28, 2017,
Treasure Chest filed a motion for summary judgment and a
motion to strike the affidavit attached to Ms.
Cangelosi's summary judgment motion. The trial court
denied Ms. Cangelosi's motion for summary judgment and
granted Treasure Chest's motion for summary judgment on
November 16, 2017. Ms. Cangelosi timely appealed that
Cangelosi appears in proper person in this Court and has
filed three motions to allow her son, Clayton Cangelosi, to
orally argue for her before this Court. Considering that
Clayton Cangelosi is neither a party to this litigation nor a
duly licensed attorney, we denied the motions, finding that
he cannot act in a representative capacity in this appeal.
first issue before this Court is the argument by Treasure
Chest that the appeal should be dismissed and/or stricken
because Ms. Cangelosi's pro se brief is not in
conformance with Uniform Rules-Courts of Appeal, Rule 2-12.4.
We agree with appellee that Ms. Cangelosi's brief is not
in conformance with Rule 2-12.4 in that it does not contain
several required items, including a statement of the
jurisdiction of the court, a concise statement of the case,
specification of errors, or issues for review. However, it
does set forth the basic premise of her argument on appeal.
2-12.4 does not provide for the dismissal of the appeal as a
penalty for violating the rule. Uniform Rules-Courts of Appeal,
Rule 2-12.13, which addresses non-compliant briefs, provides
that "[b]riefs not in compliance with these Rules may be
stricken in whole or in part by the court, and the delinquent
party ... may be ordered to file a new or amended
brief." Thus, the sanction to be imposed for a
non-conforming brief is left to the discretion of the
court. In the matter before us, we find that
striking Ms. Cangelosi's brief would deprive her of her
right to appeal and would be an unreasonably. Accordingly, we
maintain Ms. Cangelosi's appeal and will consider the
arguments made in her brief.
first argument, Ms. Cangelosi asserts the trial court erred
in granting her "Motion and Order to Release
Evidence." The motion was filed on January 9, 2018 and
relates to a "flash drive" video of the fall. The
trial court denied that motion on January 10, 2018. Ms.
Cangelosi argues she was unable to properly present her claim
or prepare her brief without that flash drive. It is not
clear from the brief which flash drive Ms. Cangelosi is
referring to in this argument, or how the lack of access to
the drive hindered the presentation of her claim or the
preparation of her appeal brief. However, a video of the
fall, and a flash drive were admitted into evidence in the
trial court and have been made a part of the record in this
Court. Although a party unrepresented by counsel is not
permitted to withdraw a record from this Court, that party
can make arrangements to view the record. Therefore, Ms.
Cangelosi had access to the evidence and could have made
arraignments with this Court to view the video. She made no
such request. Accordingly, we find no merit in this argument.
remainder of Ms. Cangelosi's arguments relate to the
grant of the defense summary judgment. She asserts the
walkway was defective and unreasonably dangerous, causing her
to fall. Specifically, she argues the water on the walkway
was brought in by passing cars and shuttle busses, and that a
hazardous condition existed in the area of the fall due to
improper drainage. Ms. Cangelosi also makes the claim that
she has met her burden of proving a hazardous condition
exists by her allegation that "all kinds of debris and
liquids", including oils, dirt, and other dangerous
slippery substances were on the walkway.
Chest responds that summary judgment was properly granted
because Ms. Cangelosi cannot prove a defect that presented an
unreasonably dangerous condition about which Treasure Chest
failed to warn its patrons. Treasure Chest asserts it used a
non-skid product on the walkway that was specifically
identified in response to an interrogatory. Further, Treasure
Chest argues that any reference to the parish drainage code
cannot be considered since this is new evidence and this