Creel v. St. Charles Gaming Co., Inc.

707 So. 2d 475, 1998 WL 40417
CourtLouisiana Court of Appeal
DecidedFebruary 4, 1998
Docket97-994
StatusPublished
Cited by4 cases

This text of 707 So. 2d 475 (Creel v. St. Charles Gaming Co., Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Creel v. St. Charles Gaming Co., Inc., 707 So. 2d 475, 1998 WL 40417 (La. Ct. App. 1998).

Opinion

707 So.2d 475 (1998)

Robert CREEL and Kaye Creel, Plaintiffs-Appellees,
v.
ST. CHARLES GAMING CO., INC., Defendant-Appellant.

No. 97-994.

Court of Appeal of Louisiana, Third Circuit.

February 4, 1998.

*477 Jere Jay Bice, Lake Charles, for Robert Creel and Kaye Creel.

A. J. Gray III, Lake Charles, for St. Charles Gaming Company, Inc.

Before DOUCET, C.J., and PETERS and SULLIVAN, JJ.

DOUCET, Chief Judge.

The Defendant, St. Charles Gaming Co., Inc. (St.Charles), appeals a judgment finding it 100% at fault in connection with injuries sustained by Kaye Creel in a slip and fall accident at the Isle of Capri Casino in November 1995.

St. Charles owns and operates the Isle of Capri Casino in Westlake, Louisiana. From the time it opened in July 1995 until her accident in November, Mrs. Creel and her husband visited the casino about twice a month. On November 18, 1995, the two arrived at the casino at about 8:30 p.m. According to their custom, they listened to a band in the pavilion area for a time. Mrs. Creel testified that during this period she drank her first drink of the evening, a beer. After a time, she and Mr. Creel boarded the boat to gamble. Mrs. Creel testified that while on the boat she drank one scotch and water. Later Mr. and Mrs. Creel returned to the pavilion area to listen to the band and dance. Mrs. Creel drank all or part of another beer. Although there was no dance floor, couples customarily danced in a clear area roped off from the seating area. Potted plants were arranged along the ropes, inside the dance area. Uncontradicted testimony indicates that there was no effort to discourage dancing in this area. While Mrs. Creel and her husband were "slow dancing," the movements of the dance took them close to the edge of the dance area. She stepped on the saucer under one of the potted plants, slipped and fell onto her left hand, which she put out to catch herself. She quickly got up and finished the dance with her husband. Her hand and wrist began hurting, and she noticed that her wrist was swollen. When she showed it to her husband, he took her to the emergency room. There the wrist was X-rayed. It was discovered that the wrist was broken. Mrs. Creel's wrist was put in a cast. A few days later, the break was found to be unstable. Surgery was done on November 27, 1995, to stabilize the break by inserting hardware in the bone. An external fixator was surgically placed on Mrs. Creel's wrist. In January 1996, the hardware and the external fixator were removed. Mrs. Creel completed her treatment course of physical therapy.

As a result of the injury, Mr. and Mrs. Creel filed this suit against St. Charles, alleging both strict liability and negligence. The matter was tried to a judge. After hearing the evidence, he found that the potted plants created an unreasonable risk of harm. He found St. Charles 100% at fault in the accident. He awarded $75,000.00 in general damages; $20,807.36 in medical expenses; $7,359.84 for past lost wages; $21,500.00 for lost earning capacity; $30,000.00 for loss of household services; and $10,000.00 for loss of consortium. St. Charles appeals. The Creels have answered the appeal.

UNREASONABLE RISK OF HARM

The Defendant first avers that the trial court erred in finding that the potted plants on the perimeter of the dance floor created an unreasonable risk of harm.

*478 This court recently outlined the duty of an owner or occupier of immovable property with regard to persons on the premises.

Regardless of the theory asserted, the duty of the owner or occupier of the immovable property is the same. Silliker v. St. Landry Parish Police Jury, 520 So.2d 880 (La.App. 3 Cir.1987). When an individual is injured as a result of a hazardous condition existing on the landowner's property, he can recover damages under either La.Civ.Code art. 2315 or under La.Civ. Code art. 2317. Owners and occupiers of land have a duty to discover any unreasonably dangerous conditions existing on his premises and to either correct those conditions or warn potential victims of their existence. Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976).

In Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141 (La.App. 1 Cir. 1983), writ denied, 435 So.2d 429 (La.1983), the First Circuit stated:

This duty is the same under the strict liability theory of La.C.C. art. 2317 as under the negligent liability theory of La.C.C. art. 2315. The difference in proof between these theories of liability is that, under Louisiana Civil Code Article 2315, it must be shown that the owner, or person in custody, either knew or should have known of the risk, whereas under La.C.C. art. 2317, a claimant is relieved of proving the defendants' scienter. Under either theory of liability, the plaintiff has the burden of proving that: (1). the property which caused the damage was in the custody of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises. (breach of duty); (3) the defect in the property was a cause in fact of the resulting injury. In both negligence and strict liability cases, the reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. Under either theory of liability, the court must decide if the risk which causes the injury is within the ambit of protection of the duty.
Farr, 430 So.2d at 1143. (Citations omitted).
Moreover, in Koppie v. Commercial Union Ins. Co., 478 So.2d 179 (La.App. 3 Cir.1985), writ denied, 479 So.2d 922 (La. 1985), we further defined what type of defect gives rise to strict liability and said that:
[Under a theory of strict liability] not every minor imperfection or irregularity will give rise to strict liability. The defect must be of such a nature as to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances.
Koppie, 478 So.2d at 181.

Millet v. Cormier, 95-953, pp. 7-8 (La.App. 3 Cir. 3/27/96); 671 So.2d 1101, 1105-06, writs denied, 96-1026 (La.5/31/96); 673 So.2d 1036; 96-1039 (La.5/31/96); 673 So.2d 1036 (alteration in original) (citations omitted in original).

The trial judge, in weighing the risk against the utility of the objects herein, found that the posts and ropes had a high utility but that the potted plants had no value beyond the decorative. He found that their encroachment on the dance floor served no useful purpose. He concluded that the potted plants constituted an unreasonably dangerous condition. This determination is a question of fact subject to the manifest error standard of review. Nichols v. Wal-Mart Stores, Inc., 97-265 (La.App. 3 Cir. 7/2/97); 698 So.2d 53, writ denied, 97-2067 (La.11/14/97); 703 So.2d 628.

The Defendant argues that the plants were not unreasonably dangerous because they were easily visible to the Creels. In support of this argument, the Defendant cites Haas v. Eddie Ray's Inc., 517 So.2d 882 (La.App. 3 Cir.1987). In that case, the plaintiff fell over a planter/partition while waiting to enter the dance floor.

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Cite This Page — Counsel Stack

Bluebook (online)
707 So. 2d 475, 1998 WL 40417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creel-v-st-charles-gaming-co-inc-lactapp-1998.