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Douglas v. PNK (Lake Charles) LLC

United States District Court, W.D. Louisiana, Lake Charles Division

February 19, 2019




         Currently pending is the motion for summary judgment (Rec. Doc. 46), which was filed by the defendant, PNK (Lake Charles), L.L.C. d/b/a L'Auberge Lake Charles (“L'Auberge”). The motion is opposed. The motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, this Court recommends that the motion should be granted and that the plaintiff's claims should be dismissed with prejudice.


         Karen Douglas, the plaintiff in this lawsuit, alleged that she was injured in a slip-and-fall incident in a ladies' restroom at L'Auberge's casino in Lake Charles, Louisiana, at approximately 5:20 a.m. on March 8, 2015. Surveillance video supplied by L'Auberge showed that the entrance to the ladies' restroom where the incident occurred is configured so that an entryway or foyer leads from the casino's slot machine gaming area to a janitor's closet where the restroom attendant, L'Auberge employee Khalilah Calvin, kept the mop, mop bucket, and other cleaning supplies on the day of the incident. To enter the restroom, a person must walk from the gaming floor down the entryway almost all the way to the janitor's closet and then turn left at the end of the entryway into the restroom. The incident occurred as the plaintiff was exiting the ladies' restroom and walking back into the entryway.

         During her deposition, the plaintiff testified that she and two friends took a bus from Houston to the casino in Lake Charles on Saturday, and that she played slot machines and blackjack before going to the restroom Sunday morning. Following the incident, the plaintiff returned to the gaming area and continued playing blackjack[1] before taking a bus back to Houston later that morning.[2]

         During the deposition, the plaintiff stated that, after using the restroom, she washed and dried her hands then proceeded toward the restroom's exit.[3] She testified that she slipped and fell and was shocked to find herself on the floor, [4] having landed on her left side.[5] Her testimony regarding the presence of wet floor signs in the area where she fell is inconsistent. First, she testified that there were no wet floor signs present when she walked into the restroom.[6] Then she stated that she did not see a wet floor sign before she fell but she saw a wet floor sign after she fell because her legs kicked it over when she fell.[7] She claimed that the sign was not in the area where she began to slip.[8] Then she testified that she saw the wet floor sign against the wall and ignored it because she was not walking against the wall.[9] Although she said “it didn't pertain to me because I wasn't in that area, ”[10] and “I wasn't walking close against the wall, and so it didn't pertain to me, ”[11] the sign was near enough to the area where she was walking that her feet struck the sign and knocked it over when she fell.[12] The plaintiff further testified that there was no standing water on the floor but the floor was damp because her paints were damp after she fell.[13] The plaintiff claims that the restroom attendant came over to her after she fell and apologized for not having placed the wet floor sign in the right spot.[14]

         L'Auberge produced surveillance video that shows a casino employee mopping the entryway to the ladies' restroom six times in less than half an hour before the plaintiff entered the restroom and one time after the plaintiff entered the restroom. Although the plaintiff testified that she did not see a restroom attendant before the incident, [15] the video shows the plaintiff following Ms. Calvin into the restroom. The video also shows the plaintiff walking from the gaming area of the casino down the restroom's entryway toward the open door of the janitor's closet, where a bright yellow mop bucket is clearly visible. Approximately one minute before the plaintiff fell, the casino employee walked with the mop out of the restroom proper into the entryway and placed an A-frame-style wet floor sign near the spot where the actual entrance to the restroom meets the entryway. When the plaintiff fell, she kicked that sign over. The video also depicts a tall pedestal sign located where the entryway meets the gaming floor. Although that sign cannot be read in the surveillance video, L'Auberge submitted a photograph of that sign, clearly establishing that it reads, in all capital letters, “caution wet floor.”[16] The plaintiff walked past that sign when she walked from the gaming floor into the entryway to the restroom.

         The plaintiff claims that L'Auberge is liable for her fall and the resulting injuries, while L'Auberge argues that the plaintiff has not proven that it is liable.

         Analysis A.

         The Summary Judgment Standard

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable governing law.[17] A genuine issue of material fact exists if a reasonable jury could render a verdict for the nonmoving party.[18]

         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 demonstrate the absence of genuine issues of material fact.[19] If the moving party carries its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of a material fact.[20] All facts and inferences are construed in the light most favorable to the nonmoving party.[21]

         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 pointing out that there is insufficient proof concerning an essential element of the nonmoving party's claim.[22] The motion should be granted if the nonmoving party cannot produce evidence to support an essential element of its claim.[23]

         B. The Applicable Statute

         In a diversity case such as this one, we apply state substantive law, here Louisiana law.[24] Therefore, L'Auberge's liability for the plaintiff's accident and injury is governed by the Louisiana Merchant Liability Act, La. R.S. 9:2800.6, which reads as follows in its entirety:

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 hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, 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 uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

         The statute requires a plaintiff to prove three things: (1) there was a condition that presented an unreasonable risk of harm, (2) the merchant either created the condition or had actual or constructive notice of the condition, and (3) the merchant failed to exercise reasonable care. If the plaintiff fails to prove any one of those three elements, the merchant is not liable. The Louisiana Supreme Court has found this statute to be clear and unambiguous.[25]

         C. The Plaintiff Failed to Prove that ...

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