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Echeverry v. Padgett

United States District Court, E.D. Louisiana

December 23, 2019

CARLA ECHEVERRY
v.
PHILLIP PADGETT, ET AL.

         SECTION “L” (3)

          ORDER & REASONS

          ELDON E. FALLON, U.S. DISTRICT COURT JUDGE

         Before the Court is Defendant Jazz Casino Company, LLC's Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(b) or, Alternatively, a New Trial under Federal Rule of Civil Procedure 59(a)(1)(A), or a Remittitur. R. Doc. 241. The motion is opposed. R. Doc. 249. Defendant filed a reply. R. Doc. 255. The Court now rules as follows.

         I. BACKGROUND

         A. Factual History

         This case arose out of a February 16, 2017 incident that occurred at the intersection of South Peters Street and Poydras Street in downtown New Orleans, Louisiana. R. Doc. 84 at 3. Defendant Jazz Casino Company, LLC d/b/a Harrah's New Orleans Casino (“JCC”) hired an independent contractor, Alabama Wildlife Removal, LLC (“AWR”) to remove birds from palm trees outside of its casino. R. Doc. 84 at 3. This job required the use of a manlift. As the manlift was moving from one group of palm trees on South Peters Street to another group of palm trees on Poydras Street, it struck Plaintiff Carla Echeverry, a pedestrian waiting at the crosswalk of the intersection. R. Doc. 49 at ¶ 9. As a result, Plaintiff sustained a comminuted fracture of her lower right leg and ankle. R. Doc. 84 at 3. Plaintiff sued JCC; AWR; Richard Padgett, the owner of AWR (“Padgett”); and Richard Tyler, the AWR employee who was operating the manlift (“Tyler”). R. Doc. 84 at 4. AWR, Padgett, and Tyler failed to appear in this lawsuit, and the Court entered a preliminary default against them. R. Doc. 42. Plaintiff alleged that JCC was negligent for the following reasons, among others: failing to properly supervise AWR or provide sufficient barricades and equipment; hiring a contractor which it knew or should have known was incompetent; failing to investigate and vet its contractors; and hiring a contractor which it knew or should have known was uninsured. R. Doc. 49 at ¶ 14.

         JCC denied liability in this case and argued video surveillance footage of the accident showed Chris Moore, an AWR employee, acting as a flagman for the manlift. R. Doc. 158 at 7. Moore allegedly walked past Plaintiff, who was standing on the sidewalk at the corner of Poydras and South Peters Streets, and into Poydras Street, “getting into position to stop traffic on Poydras Street so the manlift can move into the street and down the block towards additional palm trees.” R. Doc. 158 at 7-8. Moore allegedly did not warn either Plaintiff that the manlift was approaching or Tyler, the manlift operator, that Plaintiff was in its path. R. Doc. 158 at 8. Accordingly, JCC asserted the accident was caused by Moore's failure to warn; Tyler's failure to make sure the path was clear; and Plaintiff's own negligence in failing to abide by a sign requesting pedestrians to cross the street to avoid the area and in failing to hear an alarm that sounded when the manlift was in motion. R. Doc. 158 at 8. Finally, JCC averred there was no credible evidence to support Plaintiff's allegation that it negligently hired AWR. R. Doc. 158 at 9. JCC claimed its employee checked several references before hiring AWR, and that contractors must provide a valid certificate of insurance before they can be approved as vendors for JCC. R. Doc. 158 at 9.

         B. Trial and Jury Verdict

         A jury trial for this case commenced on August 5, 2019. As part of Plaintiff's case-in-chief, she called Kerry Hoppe, a former employee of JCC; Rudolph Leonard, who provided some treatment to Plaintiff on the day of the accident at the site of the accident; David Stuart, a former JCC employee who negotiated the contract with AWR in his capacity as the Director of Business Process Improvement, via video deposition; Garet Smitherman, Vice President of Operations of the Better Business Bureau of Central and South Alabama, via video deposition; Dr. Robert Zura, an expert in the field of orthopedic surgery and orthopedic trauma; Russell Deaver, a current employee of JCC; Jonathan Gardner, an employee of JCC who familiar with the company's sourcing operation, via video deposition; Pat Maher, a current employee of JCC and the corporate representative; Richard Tyler, a former employee of AWR and the manlift operator in this incident, via video deposition; Victoria Echeverry, Plaintiff's mother; Plaintiff herself; and Cara Hall, current employee of Caesars Entertainment, the parent company of JCC.

         After Plaintiff rested, JCC presented its case, calling Eric Miller, an employee of JCC who interacted with Phillip Padgett and AWR concerning the certificate of insurance, via video deposition; and Edward Carrick, an expert in the field of accident investigation and workplace safety. After JCC rested, the jury was excused. Out of the presence of the jury, JCC's Motion for Directed Verdict on Negligent Hiring and JCC's Rule 50 Motion for Judgment as a Matter of Law regarding negligent supervision were heard and denied by the Court.

         Both sides gave closing arguments in the morning of August 8, 2019, and the jury began deliberation at 11:10 a.m. The jury reached a verdict and returned from deliberations at 1:34 p.m. The Court took the jury's verdict at 1:44 p.m., which was as follows:

1. JCC was negligent, and JCC negligence was a legal cause of Plaintiff's injuries.
2. AWR was negligent, and AWR's negligence was a legal cause of Plaintiff's injuries.
3. Plaintiff was 1 percent negligent, but this negligence was not a legal cause of her injuries.
4. JCC was 49 percent at fault for Plaintiff's injuries.
5. AWR was 50 percent at fault for Plaintiff's injuries.
6. Plaintiff is entitled to recover a total sum of $1, 262, 000.00, with the breakdown as follows:
- $150, 000 for past pain, suffering, and mental anguish;
- $1, 000, 000 for future pain, suffering, mental anguish, disability, scarring, and disfigurement;
- $30, 000 for past, present, and future loss of enjoyment of life;
- $51, 000 for past medical expenses;
- $26, 000 for past lost wages; and
- $5, 000 for loss of college tuition.

See R. Doc. 207-1. Accordingly, Plaintiff is entitled to recover 49 percent of $1, 262, 000.00 from JCC, plus judicial interest and a percentage of court costs.

         At JCC's request, the jury was polled, and each answered in the affirmative that this was indeed the respective juror's findings. The Court accepted the jury's verdict in whole. On August 21, 2019, the Court entered judgment in favor of Plaintiff against JCC for $618, 380.00, for the 49 percent fault assigned to JCC, plus pre-judgment interest on this amount from judicial demand up to the date of judgment, post-judgment interest until paid, and costs allocated proportionate to the percent fault assigned.[1] Following JCC's Motion to Alter Judgment regarding two stipulations to past medical expenses and lost tuition expenses and calculation of post-judgment interest, R. Doc. 243, which was unopposed by Plaintiff, R. Doc. 250, the Court issued a Second Amended Judgment in favor of Plaintiff and against JCC for a total of $ $618, 196.04, plus interest and the proportion of costs. R. Doc. 256.

         II. PRESENT MOTION

         On September 18, 2019, JCC filed the instant Motion for a Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(b) or, Alternatively, a New Trial under Federal Rule of Civil Procedure 59(a)(1)(A), or a Remittitur, R. Doc. 241. JCC argues for a judgment as a matter of law, or alternatively, a new trial, or a remittitur on three grounds. First, JCC challenges the jury's verdict finding JCC negligent, arguing that (1) JCC cannot be found negligent for the negligent acts of its independent contractor, AWR, under Louisiana law and (2) there was insufficient evidence to support Plaintiff's negligent hiring claim against JCC. R. Doc. 241-1 at 7, 11. Second, JCC challenges the jury's allocation of 49 percent of the fault to JCC, stating that even if there were a basis for the jury to find JCC negligent in causing Plaintiff's accident, the allocation of fault is “unsupportable by any rational consideration of the evidence” and does not comport with the factors established in Watson v. State Farm & Casualty Insurance Co., 469 So.2d 967, 974 (La. 1985). R. Doc. 241-1 at 13. Finally, JCC challenges the jury awarding an “inordinately excessive $1, 000, 000 in future pain and suffering damages” to Plaintiff and contends that the Court should intervene and either grant a new trial or a remittitur. R. Doc. ...


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