FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-00549,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
Howard Tobias LAW OFFICES OF JACK H. TOBIAS, P.L.C. COUNSEL
Hugh Murphy Jeffrey Allen Raines Emily Stevens Hardin MURPHY
ROGERS SLOSS & GAMBEL COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Roland L. Belsome, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins
matter arises from a slip and fall incident inside a casino
and is controlled by La. R.S. 9:2800.6, the Louisiana
Merchant Liability Statute. Appellee filed a motion for
summary judgment. In accordance with La. C.C.P. art. 966
(B)(2), Appellant failed to file his opposition to
Appellee's motion for summary judgment within fifteen
(15) days prior to the hearing on said motion. The trial
court, without considering Appellant's opposition,
granted summary judgment in favor of Appellee, and dismissed
Appellant's claims with prejudice. For the reasons that
follow, we affirm the trial court's grant of summary
January 20, 2014, Plaintiff-Appellant, Joseph Brown
("Appellant") visited Harrah's New Orleans
Casino ("Harrah's"). Before leaving
Harrah's, Appellant visited a men's restroom located
near the main floor of the casino. After exiting the
restroom, Appellant began descending a set of stairs, and
slipped and fell down multiple steps. This incident was
captured on surveillance video. When deposed, Appellant
explained that he observed the restroom floor was wet and
soapy; and that once he fell, he noticed the back of his
pants were wet. Appellant further explained that the janitor
had been called to clean up the restrooms. As Appellant
entered and exited the restroom, he recalled that the janitor
was standing outside the restroom talking with another
employee who had been standing at the top of the stairs
holding an electric drill. Appellant further asserts that
after he fell, the janitor, along with other casino
employees, came to help him up. Appellant asserts that a
problem with the water in the ladies' restroom
necessitated that the water be shut off completely just
before Appellant traversed the men's restroom then
slipped and fell.
January 20, 2015, Appellant filed a petition for damages
against Defendant-Appellee, Jazz Casino
("Appellee"). Approximately, three (3) years later,
on March 23, 2018, Appellee filed a motion for summary
judgment, which was set for hearing on April 27, 2018. On
April 20, 2018, a mere seven (7) days prior to the hearing,
Appellant filed an opposition to Appellee's motion for
summary judgment. On April 23, 2018, Appellee filed a
memorandum in reply. At the April 27th hearing,
the trial court issued a judgment granting summary judgment
in favor of Appellee, and dismissing, with prejudice, all of
Appellant's claims. On May 8, 2018, Appellant filed a
motion for rehearing, which the trial court denied on May 22,
2018. It is from both judgments that Appellant appeals.
LAW & DISCUSSION
appeal, Appellant raises two (2) assignments of error.
Appellant's first assignment of error addresses whether
the trial court erred in granting summary judgment in favor
of Appellees and dismissing, with prejudice, all of
Appellant's claims. Appellant's second assignment of
error addresses whether the trial court erred when it denied
his motion for rehearing.
determining whether the trial court erred in granting summary
judgment, this Court has reasoned:
An appellate court conducts a de novo review,
applying the same criteria that govern the trial court's
determination of whether summary judgment is appropriate.
Brown v. Amar Oil Co., 2011-1631, p. 2 (La.App. 1
Cir. 11/8/12), 110 So.3d 1089, 1090 (citing Sanders v.
Ashland Oil, Inc., 96-1751, p. 6 (La.App. 1 Cir.
6/20/97), 696 So.2d 1031, 1035). A motion for summary
judgment should only be granted if the pleadings,
depositions, answers to interrogatories, and admissions,
together with any affidavits show that there is no genuine
issue of material fact and that the mover is entitled to
judgment as a matter of law. Collins v. Randall,
2002-0209, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 352,
354. The summary judgment procedure is designed to secure the
just, speedy, and inexpensive determination of actions.
King v. Allen Court Apartments II, 2015-0858, p. 3
(La.App. 1 Cir. 12/23/15), 185 So.3d 835, 837, writ
denied, 2016-0148 (La. 3/14/16), 189 So.3d 1069. This
procedure is favored and shall be construed to accomplish
these ends. Id.; see also La. C.C.P. Art.
The initial burden of proof rests on the moving party. La.
C.C.P. [a]rt. 966 D(1). However, if the mover will not bear
the burden of proof at trial on the matter that is before the
court on the motion for summary judgment, the mover's
burden on the motion does not require him to negate all
essential elements of the adverse party's claim, action,
or defense, but rather, to point out to the court that there
is an absence of factual support for one or more elements
essential to the adverse party's claim, action or
defense. King, 2015-0858 at p. 3, 185 So.3d at 838.
Thereafter, if the adverse party fails to provide factual
evidence sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial, there is no
genuine issue of material fact. Id. It is only after
the motion has been made and ...