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Ayala v. Caesar's Entertainment

United States District Court, E.D. Louisiana

May 9, 2019

EVER ORLANDO AYALA
v.
CAESAR'S ENTERTAINMENT, ET. AL.

         SECTION: "B” (3)

          ORDER AND REASONS

         Before the Court are Defendant Jazz Casino Company, LLC's Motion for Summary Judgment (Rec. Doc. 11), Plaintiff Ever Orlando Ayala's Memorandum in Opposition (Rec. Doc. 14), and Defendant's Reply (Rec. Doc. 17). For the reasons discussed below, IT IS ORDERED that the motion for summary judgment is GRANTED.

         FACTS AND PROCEDURAL HISTORY

         On July 16, 2017, between 11:00 p.m. and 12:00 a.m., plaintiff arrived at Harrah's New Orleans Casino. See Rec. Doc. 11-1 at 2. Once at the casino, he played various casino games and drank approximately five alcoholic beverages. See id.; Rec. Doc. 14 at 1. Then, between 1:00 a.m. to 5:00 a.m., he went to the restroom. See Rec. Doc. 14 at 1. After leaving the restroom, plaintiff walked down two stairs, took a step or two, and slipped. See Rec. Doc. 11-1 at 2. He struck his body and head on the floor. See Rec. Doc. 14 at 2. According to defendant, plaintiff, who was “buzzing” due to alcohol, got up quickly and told someone he was alright. See Rec. Doc. 11-1 at 2. Plaintiff states that he did not feel intoxicated. See Rec. Doc. 11-4 at 14. He did not inspect the floor after he fell. See Rec. Doc. 11-1 at 3.

         Plaintiff recalls seeing a cleaning person about ten to fifteen feet to his right before he slipped; however, he does not recall reporting the accident to any casino employee that night. See id. at 2; Rec. Doc. 14 at 1-2. The next day, plaintiff called and made a report. See Rec. Doc. 11-4 at 12.

         On July 6, 2018, plaintiff filed suit in Civil District Court for the Parish of Orleans. See Rec. Doc. 1 at 2. On August 24, 2018, defendant removed the lawsuit to this Court on the basis of diversity jurisdiction. See id. On April 8, 2019, defendant filed a motion for summary judgment. See Rec. Doc. 11. On April 24, 2019, plaintiff filed a memorandum in opposition.[1] See Rec. Doc. 14. On April 29, 2019, defendant replied. See Rec. Doc. 17.

         Plaintiff opposes summary judgment arguing the facts and inferences drawn from the evidence show a genuine dispute as to material facts. See Rec. Doc. 14 at 4. Specifically, plaintiff contends there are genuine issues of material fact on whether plaintiff's accident was caused by a condition which presented an unreasonable risk or harm, and whether defendant created the condition which caused the accident. See id. at 4-6.

         Plaintiff does not recall inspecting the floor where the accident happened. He argues plaintiffs in most slip and fall accidents do not recall the cause of their fall. See id. After several drinks, Plaintiff fell backwards and hit his head on the floor. He argues, unsurprisingly, that his recollection of the accident was not very good for some time after the accident. See id. at 4-6. However, he does recall seeing a cleaning person about ten to fifteen feet away from him prior to the fall at issue. Plaintiff contends he was not in a mental condition to inspect or recall inspecting the floors immediately after the accident. See id. at 4-6. Plaintiff testified that the cause of his fall had to result from a wet floor. See id. at 5.

         Plaintiff concludes, “[g]iven that all factual inferences reasonably drawn from the evidence must be construed in favor of plaintiff, and all doubt must be resolved in his favor, plaintiff provides sufficient factual evidence to carry his burden.” Id.

         LAW AND ANALYSIS

         A. Summary Judgment Standard

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court should view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

         The movant must point to “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). “This court will not assume in the absence of any proof that the nonmoving party could or would prove the necessary facts, and will grant summary judgment in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the [non-movant].” McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

         B. Plaintiff Fails ...


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