Colette Robertson and Carter Robertson, Individually and on Behalf of Their Minor Child, Carter Robertson, Jr. Versus Boomtown Belle Casino, J & J Exterminating of New Orleans, and Xyz Insurnce Company

• Court: Louisiana Court of Appeal
• Decided: February 1, 2023
• Docket: 22-CA-184
• Status: Unknown

Opinion

COLETTE ROBERTSON AND CARTER NO. 22-CA-184 ROBERTSON, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, CARTER FIFTH CIRCUIT ROBERTSON, JR. COURT OF APPEAL VERSUS STATE OF LOUISIANA BOOMTOWN BELLE CASINO, ET AL

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 771-479, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

February 01, 2023

HANS J. LILJEBERG JUDGE

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg

AFFIRMED HJL SMC

DISSENTS WITH REASONS MEJ COUNSEL FOR PLAINTIFF/APPELLANT, COLETTE ROBERTSON AND CARTER ROBERTSON, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, CARTER ROBERTSON, JR. Harold D. Register, III

COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA - 1 GAMING, A LOUISIANA PARTNERSHIP IN COMMENDAM D. Russell Holwadel Kyle M. Truxillo LILJEBERG, J.

Plaintiffs, Collette and Carter Robertson, individually and on behalf of their

minor child, Carter Robertson, Jr., seek review of the trial court’s January 4, 2022

judgment granting the motion for summary judgment filed by defendant,

Louisiana-1 Gaming, A Louisiana Partnership-in-Commendam (hereinafter

referred to as “Boomtown”), and dismissing plaintiffs’ claims against Boomtown

with prejudice.1 For reasons stated more fully below, we affirm the trial court’s

judgment.

FACTS AND PROCEDURAL BACKGROUND

On or about June 21, 2016, at approximately 3:00 p.m., plaintiffs checked

into a hotel room at the Boomtown New Orleans Casino Hotel with their infant

son, who was nine or ten months old at the time. Plaintiff, Collette Robertson,

testified at her deposition that she, her husband and their son then went to the

dinner buffet and returned to their room approximately two hours later.

Plaintiffs woke up at approximately 4:00 a.m. on June 22, 2016, and Ms.

Robertson felt something biting her on her chest. She initially thought it was a

mosquito, but after Mr. Robertson turned on the lights, Ms. Robertson discovered

ants crawling on herself, her husband and her son, who was sleeping between them

in the bed. Ms. Robertson testified that she abruptly jumped out of the bed and

picked up her son straining her back in the process. Ms. Robertson testified that

there were 10 to 20 ants on her. She did not know the number of ants on her son,

but she testified that they were all over him. She stated her son had ant bites all

over his body.

Shortly thereafter, Ms. Robertson went downstairs to the front desk to report

the incident. She testified that a clerk came upstairs and saw ants in the bed and on

1 Plaintiffs filed suit against “Boomtown Belle Casino” in its petition for damages. “Louisiana-I Gaming LP” filed an answer to the petition indicating that it was incorrectly referred to as “Boomtown Belle Casino.”

22-CA-184 1 the floor. During that time, they discovered red candy or juice on the carpet behind

the nightstand and saw a trail of ants coming from that area. The clerk then

relocated plaintiffs to another room and provided complimentary buffet tickets.

Ms. Robertson testified that they also received money to play the blackjack table.

She stated they declined an offer from the hotel to accommodate them with a suite.

Ms. Robertson testified that she did not see any ants in the room when they

first checked in or when they returned to the room after dinner. She also testified

that the room was clean when they arrived. Furthermore, during the two hours

before they discovered the ants, Ms. Robinson testified that their son was sleeping

in the bed with them, but he woke up crying and they were trying to soothe him.

She explained that they gave him a bottle, changed him, and walked around the

room with him. She testified that they did not notice any ants on him during this

time.

On April 26, 2017, plaintiffs filed suit against Boomtown, as the owner of

the property, as well as other defendants, seeking to recover damages resulting

from the incident with the ants. After conducting extensive discovery over a four-

year period, Boomtown filed a motion for summary judgment on October 25,

2021, seeking the dismissal of plaintiffs’ claims. In its supporting memorandum,

Boomtown argued that plaintiffs could not establish a claim against it pursuant to

La. C.C. art. 2317.1, because they could not prove that Boomtown knew or should

have known of the presence of ants in the room prior to the incident, particularly

since plaintiffs did not report the presence of any ants until 12 hours after they

checked into the room.

Boomtown further argued that it exercised reasonable care in insuring the

safety of its patrons by contracting with co-defendant J&J Exterminating Company

of New Orleans, LLC (“J&J”) to regularly treat the rooms for pests. Boomtown

entered into a contract with J&J indicating that it agreed to inspect, treat and

22-CA-184 2 eliminate pests, including ants. The contract provided for hotel rooms to be treated

on a monthly basis, and further provided that treatments were designed to eliminate

ant activity before it begins. Boomtown argued that J&J never reported the

presence of ants to Boomtown prior to plaintiffs’ stay. Immediately following the

incident, Boomtown made an emergency call to J&J, which treated the room for

ants at 9:00 a.m., just hours after plaintiffs’ initial complaint.

Boomtown also presented evidence establishing that all housekeeping,

cleaning and inspections related to the hotel rooms were contractually delegated to

its housekeeping contractor, co-defendant Full Service Systems Corporation

(“FSS”). The contract required FSS to promptly notify Boomtown of any

conditions affecting guest safety. Boomtown argued that FSS did not report the

presence of ants or any other unsafe conditions in plaintiffs’ room prior to their

stay. Boomtown also argued that despite four years of discovery, plaintiffs could

not present any evidence to establish that Boomtown failed to conform to the

applicable standard of care or breached any duty to establish a general negligence

claim.

In opposition to the summary judgment motion, plaintiffs argued that

Boomtown cannot escape liability because its entire argument attempts to shift

blame to third parties who were allowed to operate with absolutely no guidance

from Boomtown. Plaintiffs argued that Boomtown should have known about the

ants located in the room because it failed to exercise reasonable care by not

establishing its own guidelines and procedures for the cleaning and inspection of

its hotel rooms. Plaintiffs also argued that Boomtown’s own safety and risk

managers did not inspect the rooms to insure that J&J and FSS fulfilled their

contractual obligations. Further, plaintiffs argued that Boomtown did not provide

any documentation to establish that J&J or FSS inspected the room prior to their

stay.

22-CA-184 3 On December 6, 2021, the trial court held a hearing on Boomtown’s motion

for summary judgment. At the hearing, plaintiffs argued that Boomtown did not

have guidelines in place to determine whether or not the rooms are cleaned

properly. However, Boomtown pointed to deposition testimony from its Director

of Hotel Operations, Quintina Tate, who stated that she did do inspections of

rooms after they were cleaned on occasion.2 Boomtown further argued that

plaintiffs did not produce any evidence to establish that it knew about the ants prior

to the incident and that the agreements in place with J&J and FSS established that

Boomtown exercised reasonable care.

Following oral argument, the trial court granted Boomtown’s motion for

summary judgment finding that Boomtown did not have knowledge of the ants,

and that it acted reasonably by contracting with FSS to clean the hotel rooms and

by inspecting the cleanliness of the rooms. The trial court signed a written

judgment on January 4, 2022. Plaintiffs filed a motion for suspensive appeal on

February 3, 2022, and the trial court granted the appeal on February 9, 2022.

LAW AND DISCUSSION

Appellate courts review a judgment granting a motion for summary

judgment de novo using the same criteria governing the trial court’s consideration

of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363

(La. 11/29/06), 950 So.2d 544, 547. After an opportunity for adequate discovery, a

motion for summary judgment shall be granted if the motion, memorandum, and

supporting documents show that there is no genuine issue as to material fact and

that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof rests with the mover, unless the mover will not bear the

burden of proof at trial on the issue before the court on summary judgment. La.

C.C.P. art. 966(D)(1). In that instance, the mover need only show the court the

2 Ms. Tate testified pursuant to La. C.C.P. art. 1442 as a designated representative of Boomtown.

22-CA-184 4 absence of factual support for one or more essential elements of the adverse party's

claim. Id. The burden is then on the adverse party to establish factual support

sufficient to demonstrate the existence of a genuine issue of material fact or that

the mover is not entitled to judgment as a matter of law. Id.

A material fact is one that “potentially ensures or precludes recovery, affects

a litigant’s ultimate success, or determines the outcome of the legal dispute.”

Jackson v. City of New Orleans, 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876,

882, cert. denied, 574 U.S. 869, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014). A

genuine issue of material fact “is one as to which reasonable persons could

disagree; if reasonable persons could reach only one conclusion, there is no need

for trial on that issue and summary judgment is appropriate.” Id.

In this appeal, plaintiffs argue that the trial court erred by granting summary

judgment due to the existence of genuine issues of material fact. Plaintiffs contend

that they presented evidence of genuine issues of material fact to establish that

Boomtown failed to exercise reasonable care over the hotel room in violation of

La. C.C.P. art. 2317.1, and that Boomtown was negligent under the duty-risk

doctrine.

A hotel owes a duty to its patrons to exercise reasonable and ordinary care

including maintaining the premises in a reasonably safe and suitable condition.

Rayfield v. Millet Motel, 15-496 (La. App. 5 Cir. 1/27/16), 185 So.3d 183, 187.

The owner is not an insurer of the safety of a guest, but must only exercise

reasonable care to see that the premises are safe for the occupants of rooms in the

establishment. Id.

La. C.C. art. 2317.1 provides that the owner or custodian of a thing is

answerable for damage caused by its defect only upon a showing that they knew,

or in the exercise of reasonable care, should have known of the defect which

caused the damage, that the damage could have been prevented by the use of

22-CA-184 5 reasonable care, and that they failed to exercise such reasonable care. Bryant v.

Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir. 3/17/20), 292 So.3d 190, 197.

Thus, to recover for damages caused by a defective thing, the plaintiff must prove

the following: (1) the thing was in the defendant's custody or control; (2) the thing

contained a defect which presented an unreasonable risk of harm to others; (3) the

defendant knew or should have known of the defect; and (4) the defective

condition caused the damage. Id. If the plaintiff fails to provide any one of these

elements, the claim fails. Id.

Under the duty-risk analysis adopted by Louisiana courts, a plaintiff must

establish the following in order to prevail on a general negligence claim: (1) the

defendant owed a duty to conform its conduct to a specific standard of care; (2) the

defendant failed to conform its conduct to the appropriate standard of care; (3) the

defendant’s substandard conduct was a cause of the plaintiff’s injuries; and 4) the

plaintiff suffered damages. Kennedy v. Red River Entertainment of Shreveport,

LLC, 51,760 (La. App. 2 Cir. 12/13/17), 245 So. 3d 1098, 1104.

We agree with the trial court’s finding that plaintiffs did not present

evidence of genuine issues of material fact to establish that Boomtown failed to

exercise reasonable care with respect to the condition of the hotel room, and

therefore, should have known about the presence of ants. We first observe that Ms.

Robertson reported that the hotel room was clean upon their arrival, and they did

not see any ants until 12 hours after they checked into the room. Furthermore,

Boomtown entered into contracts with housekeeping and exterminating companies

to regularly treat, inspect and clean the hotels rooms. Boomtown’s Director of

Hotel Operations, Quintana Tate, testified that FSS inspects and cleans the hotels

rooms on a daily basis. Plaintiffs attempt to create a genuine issue of material fact

by arguing that Boomtown did not check to insure inspections and cleaning were

properly done. However, plaintiffs fail to recognize that the trial court cited to

22-CA-184 6 testimony from Ms. Tate indicating that Boomtown also inspected the rooms

periodically. Contrary to plaintiffs’ arguments, we do not find that Boomtown was

required to inspect, treat or clean the hotels rooms itself on a daily basis in order to

meet its obligation to exercise reasonable care. Plaintiffs also contend that

Boomtown failed to act reasonably because it did not have a specific procedure in

place for FSS’s employees to inspect for ants. However, Boomtown’s contract

with FSS specifically provided for FSS’s employees to immediately report any

conditions in the rooms affecting guest safety.

Accordingly, because plaintiffs failed to present evidence to demonstrate the

existence of a genuine issue of material fact, the trial court did not err by

dismissing plaintiffs’ claims filed pursuant to La. C.C. art. 2317.1. For the same

reasons, we find that the trial court did not err by finding that plaintiffs failed to

present any evidence of sub-standard conduct or breach of a duty owed by

Boomtown to plaintiffs to establish a negligence claim. As stated above, while

Boomtown was required to exercise reasonable care to maintain the premises in a

safe condition, it is not the insurer of plaintiffs’ safety and is not liable every time

an accident occurs.

In a case also involving ants, Searile v. Ville Platte Med. Ctr., LLC, 15-1183

(La. App. 3 Cir. 6/1/16), 194 So.3d 1205, two days after the plaintiff was admitted

into the hospital’s intensive care unit, a nurse noticed ants crawling on the

plaintiff’s arm and in her bed. The nurse removed the ants and administered

medications to alleviate pain and itching from the ant bites. The plaintiff filed a

lawsuit alleging the hospital failed to maintain a clean and safe facility. In

response, the hospital moved for summary judgment alleging the plaintiff would be

unable to meet her burden of proof under La. C.C. art. 2317.1, and she would be

unable to prove that the hospital was negligent or breached any duty owed to the

plaintiff. The district court granted summary judgment and the Third Circuit

22-CA-184 7 affirmed, finding that the plaintiff had failed to present any evidence to show that

she could satisfy her burden of proof at trial of establishing that the hospital knew

or should have known of the presence of ants, or failed to exercise reasonable care:

[T]here was evidence that Mercy Regional regularly surveyed the hospital and had a pest control contract in place for the eradication of pests. . . [T]he Director of Plant Operations . . . testified that Mercy Regional maintained a pest control service contract which provided monthly services for the eradication of pests. Additionally, . . . [the director of plant operations] and [Quality Director and Assistant Director of Nurses] attested that notwithstanding [the plaintiff's] incident, there were no complaints of ants in and around the facility prior to [the date of the claimant's injury]. We, therefore, agree with the trial court's finding that [the plaintiff] failed to present evidence showing that she could satisfy her burden of proof at trial[.]

Id. at 1212.

Considering the foregoing, we affirm the trial court’s judgment granting

defendant Louisiana-1 Gaming, A Louisiana Partnership-in-Commendam’s motion

for summary judgment and dismissing plaintiffs’ claims with prejudice.

AFFIRMED

22-CA-184 8 COLETTE ROBERTSON AND CARTER NO. 22-CA-184 ROBERTSON, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, FIFTH CIRCUIT CARTER ROBERTSON, JR. COURT OF APPEAL VERSUS STATE OF LOUISIANA BOOMTOWN BELLE CASINO, ET AL

JOHNSON, J., DISSENTS WITH REASONS

I, respectfully, dissent from the majority opinion in this matter. Upon de

novo review, I find that there are genuine issues of material fact remaining for the

issue of whether Louisiana-1 Gaming, A Louisiana Partnership-in-Commendam

(hereinafter referred to as “Boomtown”) exercised reasonable care over the hotel

rooms on its premises in accordance with La. C.C. art. 2317.1.

The majority finds that Boomtown was not required to inspect, treat, or

clean the hotels itself on a daily basis in order to meet its obligation to exercise

reasonable care. The majority references the deposition testimony of Boomtown’s

Director of Hotel Operations, Quintana Tate, to support the position that

Boomtown exercised reasonable care by inspecting its rooms periodically.

However, I find that Ms. Tate’s testimony does not support that position. When

questioned about Boomtown’s inspections of the hotel rooms, Ms. Tate provided

the following answers, in pertinent part:

Q. Okay, Are there any -- so whenever they do the inspections -- they meaning the staff at [Full Service Systems Corporation], do you walk in there with them, while they conduct inspections of the hotel rooms?

A. No, I do not.

Q. Okay. Do you go in there beforehand and say, “Hey, this needs to be cleaned, you need to go ahead and concentrate on this area at all”?

22-CA-184 1 A. No.

Q. After they leave out and say they [sic] they’re clean, do you go in there and inspect after that to see, make sure that they did everything correctly?

A. No.

Q. Okay. So it’s safe to say that, as the direct of hotel operations on Boomtown’s hotel, you do not conduct any inspections within the hotel rooms located on hotel -- Boomtown’s hotel. Correct?

A. I would do -- I would do inspections, but I don’t do daily inspections. So I can opt to go any day and say, yes, I want to inspect some rooms, but I’m not -- that’s not part of my daily duties, to inspect the turned rooms.

***

Q. But there’s no policy, by Boomtown or [Full Service Systems Corporation], to your knowledge, to inspect the -- the housekeeping to inspect for ants inside of a guest’s room. Correct? On Boomtown’s property?

A. Not at this time, no.

Q. Okay. And not at this time, either, at June 22nd, 2016. Correct?

A. Not to my knowledge.

Q. -- as they -- as they’re doing their housecleaning duties, how can you then ensure, as director of hotel operations, that the particular hotel rooms are free from ants?

A. So what you’re asking me is how do I know that a hotel room is free of ants? Is that your question?

Q. Right.

A. I do not know.

Additionally, Ms. Tate testified that she was not employed at that Boomtown

property on the date of the incident and had no knowledge of a prior inspection of

the room in question by a Boomtown employee.

22-CA-184 2 Ms. Tate’s testimony failed to provide any information regarding a

procedure of how Boomtown ensured that Full Service Systems Corporation and

J&J Exterminating Co. fulfilled the obligations of their contracts while servicing

its premises. Furthermore, her testimony concerning her sporadic inspections of

Boomtown’s hotel rooms is inconsequential because she was not employed at the

property on the date of the incident and had no knowledge of Boomtown’s policies

for room inspections at that time.3 Thus, in my opinion, the question still remains

as to whether Boomtown met its obligation to exercise reasonable care over the

hotel rooms on its premises in accordance with La. C.C. art. 2317.1. Additionally,

there is a remaining issue as to whether Boomtown is liable to the plaintiffs under

La. C.C. art. 2320. Therefore, at this juncture, I find that Boomtown is not entitled

to summary judgment as a matter of law.

Accordingly, I would reverse the summary judgment in favor of Boomtown

and remand the matter for further proceedings.

3 Boomtown’s lack of a procedure in place to ensure that Full Service Systems Corporation and J&J Exterminating Co. fulfilled their contractual obligations distinguishes this case from Searile v. Ville Platte Med. Ctr., LLC, 15-1183 (La. App. 3 Cir. 6/1/16), 194 So.3d 1205. In Searile, the record contained evidence that Mercy Regional regularly surveyed the property. The record in this matter does not contain such evidence.

22-CA-184 3 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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22-CA-184 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE) HAROLD D. REGISTER, III (APPELLANT) HEATHER E. REZNIK (APPELLEE) KYLE M. TRUXILLO (APPELLEE) JOHN M. HOLAHAN, JR. (APPELLEE)

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