IRVIN MAGRI, JR.
JAZZ CASINO COMPANY, L.L.C., HARRAH'S NEW ORLEANS CASINO, THE RIVERGATE DEVELOPMENT CORPORATION, AND JANE DOE
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-00519,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE.
I. Courcelle Scott C. Stansbury LAW OFFICE OF DAVID I.
COURCELLE, LLC, COUNSEL FOR PLAINTIFF/APPELLEE .
H. Murphy Jeffrey A. Raines MURPHY ROGERS SLOSS GAMBEL &
TOMKINS COUNSEL FOR DEFENDANTS/APPELLANTS
composed of Judge Terri F. Love, Judge Sandra Cabrina
Jenkins, Judge Dale N. Atkins
CABRINA JENKINS JUDGE.
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.
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.
AND FACTUAL BACKGROUND
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.
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
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.
Magri's Trial Testimony
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
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. He stated that he felt a sharp pain in
his surgically repaired left knee and ankle.
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.