United States District Court, E.D. Louisiana
ORDER & REASONS
E. FALLON, U.S. DISTRICT COURT JUDGE
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.
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.
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.
Trial and Jury Verdict
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.
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.
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
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
- $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.
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. 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.
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. ...