United States District Court, E.D. Louisiana
ORDER AND REASONS
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.
AND PROCEDURAL HISTORY
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.
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.
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. See Rec. Doc. 14. On
April 29, 2019, defendant replied. See Rec. Doc. 17.
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.
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.
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
Summary Judgment Standard
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).
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).
Plaintiff Fails ...