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Magri v. Jazz Casino Company, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

June 26, 2019

IRVIN MAGRI, JR.
v.
JAZZ CASINO COMPANY, L.L.C., HARRAH'S NEW ORLEANS CASINO, THE RIVERGATE DEVELOPMENT CORPORATION, AND JANE DOE

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-00519, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE.

          David I. Courcelle Scott C. Stansbury LAW OFFICE OF DAVID I. COURCELLE, LLC, COUNSEL FOR PLAINTIFF/APPELLEE .

          Robert H. Murphy Jeffrey A. Raines MURPHY ROGERS SLOSS GAMBEL & TOMKINS COUNSEL FOR DEFENDANTS/APPELLANTS

          Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins

          SANDRA CABRINA JENKINS JUDGE.

         Defendant Jazz Casino Company, LLC, the owner of Harrah's New Orleans Casino ("Harrah's"), appeals the trial court's October 17, 2018 judgment awarding $601, 689.31 in damages to plaintiff Irvin Magri, Jr., following a two-day bench trial. The suit arises from personal injuries sustained by Mr. Magri when a Harrah's employee abruptly moved a stool on which Mr. Magri was resting his foot while sitting at a black jack table.

         Harrah's challenges the trial court's findings on three of the five legal elements of negligence. For the reasons that follow, we find that Harrah's owed a duty of reasonable care to Mr. Magri, Harrah's breached that duty, and the particular harm sustained by Mr. Magri fell within the scope of Harrah's duty to exercise reasonable care. We also find that the trial court was not clearly wrong in apportioning 70% of fault to Harrah's, and 30% to Mr. Magri. Accordingly, we affirm the trial court's judgment.

         PROCEDURAL AND FACTUAL BACKGROUND

         On the evening of January 18, 2012, Mr. Magri went to Harrah's to celebrate his birthday. Mr. Magri was seated on a high stool at the blackjack table to the left of the dealer, with an empty stool situated to Mr. Magri's immediate left. Because Mr. Magri recently had undergone a left knee replacement, he rested his left leg and ankle on the bottom of the empty stool, and faced the dealer. While Mr. Magri was playing blackjack, the pit boss called for an employee to empty a trash can in the area. When the employee, Nakeisha McCormick, attempted to empty the trash can, she moved the stool upon which Mr. Magri's left foot was resting. Mr. Magri claims that she yanked the stool, twisting his left foot and ankle. After the incident, Harrah's employees applied ice and wrapping to Mr. Magri's left foot.

         On January 15, 2013, Mr. Magri filed suit against Harrah's and others alleging various theories of negligence, including failure to exercise reasonable care, failure to warn of an unsafe condition, and failure to properly train employees. On September 17 and 18, 2018, a bench trial was held. On October 17, 2018, the trial court rendered a judgment in favor of Mr. Magri and against Harrah's in the amount of $601, 689.31, after reducing the amount of the original judgment by 30%, based on Mr. Magri's comparative fault. Harrah's timely appealed.

         Harrah's raises four assignments of error: (1) Harrah's owed no duty to protect or warn Mr. Magri because the risk that the empty stool could be moved was open and obvious to everyone who encountered it; (2) The trial court erred in finding that Harrah's breached its legal duty because a reasonably prudent person observing an empty stool would not have inspected underneath the stool before moving it; (3) The trial court erred in finding legal causation because the risk that a patron sitting on one stool would put his foot on an adjacent stool, and that his foot would be injured when the stool was moved, is not within the scope of a Harrah's duty to exercise reasonable care; and (4) The trial court erred in allocating only 30% of the fault to Mr. Magri since he placed his foot on an empty stool knowing that the stool could be moved at any time.

         Mr. Magri's Trial Testimony

         Mr. Magri testified that he had been to Harrah's four to ten times before the incident, and during these prior visits he saw "more people than he could count" sitting with their feet on adjacent stools. At the time of the accident, he was sitting at a blackjack table to the left of the dealer, with his left foot on the bottom rung of the empty stool next to him. Mr. Magri described his left foot as "intertwined" in the stool, with his foot inserted over the rung and then underneath it. He stated that he was facing the dealer with the majority of his body facing forward, while his left leg was on the rung of the adjacent stool. According to Mr. Magri, because he had a left knee replacement surgery on August 2, 2011, he was stretching his left leg out on the rung of the adjacent stool to relieve stiffness.

         Mr. Magri testified that while he was playing blackjack, the pit boss called for environmental services to empty a trash can. Mr. Magri said that when a female employee arrived, she and the pit boss got involved in a heated argument that lasted thirty seconds or less. Mr. Magri said that after the argument, the employee "yanked" the stool two or three times, and after each time she yanked the stool, he yelled for her to stop. He said that when the employee pulled the empty stool out, his foot and ankle were tangled in it. Mr. Magri stated that after the third pull, the employee stopped yanking the stool.[1] He stated that he felt a sharp pain in his surgically repaired left knee and ankle.

         Mr. Magri testified that before the accident, he did not ask any casino personnel if he could put his foot on the adjacent stool. He said that he was aware as a matter of "common sense" that another casino patron or employee could move the empty stool at any time, and he acknowledged that he did not need a sign to tell him that. He stated that he saw Ms. ...


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