DOMINIC VARRECCHIO NO. 23-C-603
VERSUS FIFTH CIRCUIT
THE LEMOINE COMPANY, L.L.C., ET. AL. COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 825-990, DIVISION "H" HONORABLE DONALD L. FORET, JUDGE PRESIDING
January 31, 2024
SUSAN M. CHEHARDY CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst
WRIT DENIED SMC JGG SJW
DISSENTS WITH REASONS MEJ DISSENTS WITH REASONS FHW COUNSEL FOR DEFENDANT/RELATOR, LOUISIANA-1 GAMING, A LOUISIANA PARTNERSHIP-IN-COMMENDAM D. Russell Holwadel Kyle M. Truxillo
COUNSEL FOR PLAINTIFF/RESPONDENT, DOMINIC VARRECCHIO Leo J. Palazzo Jason J. Markey Mario A. Arteaga, Jr. Davin R. Savoy CHEHARDY, C.J.
In this writ application, relator, Louisiana-1 Gaming, a Louisiana
Partnership-in-Commendam (“Boomtown”) seeks review of the trial court’s
December 29, 2023 written judgment denying its motion for summary judgment on
liability, its motion for partial summary judgment on plaintiff’s spoliation claim,
and its motion in limine to strike any testimony of plaintiff’s expert, Mitchell A.
Wood. Finding no error in the trial court’s judgment, we deny the writ.
On March 18, 2021, plaintiff, Dominic Varrecchio, tripped and fell in the
lobby of the Boomtown Casino and Hotel as he approached the front desk to check
into his room. According to Varrecchio, a “depression or ‘wearing’ of the carpet
underpadding” caused the sole of his shoe to become “lodged underneath the metal
transition strip.” He then fell forward onto the uncarpeted “hard lobby floor,”
sustaining various injuries, as well as aggravating previous injuries.
Varrecchio filed a petition for damages against Boomtown and others on
March 11, 2022, alleging that a dangerously defective “metal frame at the edge of
the carpeted portion of the hotel lobby” created a “tripping hazard” and presented
an unreasonable risk of harm to patrons, which was the direct cause of his fall and
resulting injuries. Varrecchio also alleged a spoliation of evidence claim.1
In November 2023, Boomtown filed a motion for summary judgment on the
issue of liability on the basis that Varrecchio cannot prove the existence of an
unreasonably dangerous condition. Specifically, Boomtown asserted that the
change in elevation at the site of Varrechhio’s trip and fall was negligible, and that
the “transition strip area was open and obvious to anyone approaching, due to
visibly apparent differentiation in color and composition.” Boomtown also noted
1 Varrecchio later filed a first amending and supplemental petition on July 13, 2022, wherein he added a defendant, and voluntarily dismissed another defendant.
23-C-603 1 that Varrecchio’s accident was the first and only reported incident which involved
walking across the front lobby floor from the time the hotel was built in 2015, until
the flooring was replaced as part of a hotel remodel in late 2022.
Boomtown also filed a motion for partial summary judgment seeking
dismissal of Varrecchio’s spoliation claim on the basis that Varrecchio cannot meet
his burden of proving an “intentional” spoliation claim. Boomtown asserted that
the subject surveillance footage was preserved per its usual operating procedures,
but was lost when Boomtown’s storage server crashed within days of Varrecchio’s
accident, through no fault of its own. Boomtown also asserted that Varrecchio
knew well in advance that it was removing the flooring where he fell as part of a
remodel, yet Varrecchio never requested that Boomtown preserve the flooring or
the metal transition strip between the carpet and tiled floor areas.
Additionally, Boomtown file a motion in limine to exclude Varrecchio’s
expert, Mitchell A. Wood, who is designated on Varrecchio’s supplemental
witness list as a “rebuttal expert.” Boomtown avers that, despite its interrogatories
propounded upon Varrecchio requesting disclosure of experts, the facts or
underlying reasoning upon which their expert opinions are based, and any reports
prepared by such experts, Varrecchio has failed to identify Wood in discovery
responses or disclose any expert report prepared by Wood.
Boomtown’s motions came for hearing on December 7, 2023. At the close
of the hearing, the trial court (1) denied Boomtown’s motion for summary
judgment on liability; (2) denied Boomtown’s motion for partial summary
judgment and deferred the issue of spoliation to the trial of the merits; and (3)
denied Boomtown’s motion in limine to exclude expert Mitchell A. Wood.2 A
2 Before the trial court at the hearing were also Varrecchio’s motion to strike Boomtown’s memorandum in support of summary judgment and attached exhibits, Varrecchio’s motion to strike Boomtown’s supplemental memorandum in support of its motion for summary judgment, and Varrecchio’s motion in limine. As to Varrecchio’s motions to strike, these were both denied as moot. The trial court deferred ruling on Varrecchio’s motion in limine. Boomtown’s writ application does not seek review of the trial court’s rulings on these motions.
23-C-603 2 written judgment to this effect was signed by the trial court on December 29, 2023.
Boomtown seeks this Court’s supervisory review of the trial court’s rulings.
Motion for Summary Judgment on Liability
In his first assignment of error, Boomtown avers the trial court erred in
finding that there are issues of fact precluding summary judgment on the issue of
liability because the uncontroverted evidence proved there was no unreasonable
risk of harm and/or actual or constructive notice, and that Varrecchio did not
submit any positive evidence to create a genuine issue of material fact. We
disagree.
Appellate courts review the granting of a summary judgment de novo using
the same criteria governing the trial court's consideration of whether summary
judgment is appropriate. Dragna v. Terrytown Cafe, Inc., 22-239 (La. App. 5 Cir.
10/5/22, 6–7); 353 So.3d 203, 208; Duncan v. U.S.A.A. Ins. Co., 06-363 (La.
11/29/06), 950 So.2d 544, 547. A motion for summary judgment should 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 summary judgment procedure is
favored and shall be construed to secure the just, speedy, and inexpensive
determination of most actions. La. C.C.P. art. 966(A)(2); Dragna, supra, citing
Trench v. Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), 150
So.3d 472, 475. However, factual inferences reasonably drawn from the evidence
must be construed in favor of the party opposing the motion and all doubts must be
resolved in the opponent's favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775
So.2d 1049, 1050 (per curiam).
Upon de novo review of Boomtown’s writ application, and after considering
the motion to strike evidence filed by Varrecchio in this Court, we find that
Varrecchio raises meritorious objections as to whether the “uncontroverted”
23-C-603 3 evidence upon which Boomtown relies to support its motion for summary
judgment was admissible and, thus, reviewable by this Court. It appears that some
of the exhibits that Boomtown attached to the copy of the motion for summary
judgment included in the writ application are not the same exhibits that were
actually attached to the motion for summary judgment filed by Boomtown in the
trial court. Although Boomtown filed a supplemental memorandum in the trial
court prior to the hearing on the motion for summary judgment with the “new
exhibits” attached, the supplemental memorandum was filed in response to
Varrecchio’s opposition and objections to Boomtown’s motion for summary
judgment and motion for partial summary judgment. The law is clear that the trial
court—and the appellate court on de novo review—can only consider exhibits
attached to the motion for summary judgment and the opposition to the motion for
summary judgment that were not previously filed into the record of the cause, and
not any additional exhibits attached to the reply to the opposition. La. C.C.P. art.
966(D)(2); La. C.C.P. art. 966(B)(3); La. C.C.P. art. 966(B)(3); La. C.C.P art. 966
(A)(4)(b). See also Jones v. Baton Rouge General Medical Center-Bluebonnet,
20-1250 (La. App. 1 Cir. 6/4/21), 327 So.3d 512, 516-17. Accordingly, upon our
de novo review, we are not allowed to consider the “new exhibits.”
Additionally, after reviewing Boomtown’s application in light of
Varrecchio’s motion to strike evidence, we find that Boomtown has not been as
forthcoming with this Court as it should have been regarding Varrecchio’s
objections to the “new exhibits” upon which it relies to support its motion for
summary judgment and, apparently, wants this Court to consider the “new
exhibits” in our de novo review. We also find that Boomtown failed to be
forthcoming with this Court regarding what actually happened in the trial court
with respect to the exhibits it attached to its motion for summary judgment.
23-C-603 4 In light of these considerations, and without these questionable exhibits, we
cannot say with certainty that Boomtown has shown that no outstanding issues of
material fact remain and that it is entitled to summary judgment as a matter of law.
In particular, we cannot say that no genuine issues of material fact remain as to
how Varrecchio’s trip and fall actually occurred. The jury may believe
Varrecchio’s version of the events of his trip and fall and the alleged unreasonably
dangerous condition of the flooring at issue at the time of his fall, as opposed to
Boomtown’s expert testimony as to the nature and extent of the condition of the
flooring in the area where the trip and fall occurred based on an examination of
that area conducted more than one year after the accident happened. If reasonable
persons could disagree after considering the evidence, a genuine issue exists. B &
P Restaurant Group, LLC v. Delta Administrative Services, LLC, 18-442 (La. App.
5 Cir. 9/4/19), 279 So.3d 492, 501, writ denied, 19-01755 (La. 1/14/20), 291 So.3d
685. In determining whether an issue of fact is genuine, as necessary for it to
preclude summary judgment, courts cannot consider the merits, make credibility
determinations, evaluate testimony or weigh evidence. Id. Accordingly, in light of
the foregoing, upon de novo review, we deny Boomtown’s writ application on the
issue of liability at this time on the showing made.
Motion for Partial Summary Judgment on Issue of Spoliation of Evidence
In its second assignment of error, Boomtown avers the trial court abused its
discretion in denying its motion for partial summary judgment and deferring the
issue of spoliation to the trial on the merits where the record lacks any evidence of
intent to deprive Varrecchio of the use of evidence. Specifically, Boomtown
asserts that the destroyed video-surveillance of Varrecchio’s accident was the
result of a server crash, which had never before occurred. Additionally,
Boomtown contends that Varrecchio knew that it was going to replace the flooring
for aesthetic reasons, and did not request that Boomtown preserve the flooring
23-C-603 5 where he fell. Although the judgment on Boomtown’s motion for partial summary
judgment was denied, it also stated that “the issue of spoliation is deferred to trial.”
Thus, it is clear the trial court intends to revisit this issue at trial. In the event
Boomtown should receive an adverse ruling on the issue of spoliation at trial, we
find that it has an adequate remedy on appeal.
Also, the theory of spoliation of evidence generally refers to an intentional
destruction of evidence for the purpose of depriving opposing parties of its use at
trial. Warren v. HAD Global Insurance Company, 21-570 (La. App. 5 Cir.
5/16/22), 341 So.3d 1249, 1254, writs denied, 22-01002 (La. 11/1/22), 349 So.3d 5
and 22-00938 (La. 11/1/22), 349 So.3d 10. The remedy for spoliation is that the
court may either exclude the spoiled evidence or allow the jury to infer that the
spoiled evidence was unfavorable to the spoliator’s case. Tomlinson v. Landmark
American Ins Co., 15-276 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 160. Before
either remedy may be applied, the party having control of the evidence must have
an obligation to preserve it at the time it was destroyed. The obligation or duty to
preserve evidence arises from the foreseeability of the need for the evidence in the
future. Warren, 341 So.3d at 1254. An essential element of a spoliation claim is
the intent of the party alleged to be a spoliator. Tomlinson, 192 So.3d at 160.
“A motion for summary judgment is not appropriate for disposition of cases
requiring a judicial determination of subjective facts, e.g., motive, intent, good
faith, and knowledge.” [Emphasis added.] Osborne v. Vulcan Foundry, Inc., 95-
2766 (La. App. 4 Cir. 5/29/96), 675 So.2d 837, 841. In this case, the spoliation
claims will likely turn on whether Boomtown’s actions were intentional. In other
words, the granting of Boomtown’s motion for partial summary judgment could
not occur but for a credibility determination to establish a finding that intent was
not present. Questions of intent are the type of determination that is not
appropriate on a motion for summary judgment. Id. Under the factual
23-C-603 6 circumstances presented by this case, on the showing made, we find no reason to
disturb the trial court’s ruling on the issue of spoliation at this time.
Motion In Limine to Exclude Expert Testimony of Mitchell A. Wood
Boomtown’s third and fourth assignments of error pertain to the trial court’s
denial of its motion in limine to exclude the expert testimony of Mitchell A. Wood,
on grounds that he has not disclosed any of his opinions or produced a report as
purportedly ordered by the trial court, and did not disclose his expert opinions in
response to expert interrogatories served by Boomtown upon Varrecchio.
Boomtown also avers the trial court erred by permitting Wood to testify after
Boomtown has rested when Wood has never disclosed his opinions, which
opinions relate to the issue of liability that Varrecchio should present in his case-
in-chief.
The decision to admit or exclude expert testimony is within the sound
discretion of the trial court, and its judgment will not be disturbed by an appellate
court unless it is clearly erroneous. Rhodes v. AMKO Fence & Steel Co., LLC, 21-
19 (La. App. 5 Cir. 10/28/21), 329 So.3d 1112, 1125. Here, Varrecchio has
indicated in his opposition to Boomtown’s motion in limine filed in the trial court
that he only intends to call Wood “strictly” as a rebuttal witness. [Emphasis in
original.] Additionally, at the hearing on Boomtown’s motions, counsel for
Varrecchio reiterated to the court that Wood “is being presented solely for rebuttal
purposes,” to “perhaps to talk about the methodology” used by Boomtown’s
expert, Patrick Fisher, in formulating his opinion. There is no requirement that
Varrecchio disclose the identity or intended testimony of rebuttal witnesses,
including Wood. See Abadie v. Metropolitan Life Ins. Co., 00-352 (La. App. 5 Cir.
4/11/01), 804 So.2d 11, 16-18. Additionally, a review of the hearing transcript
suggests that the issue of the nature and extent of Wood’s testimony will be
addressed during the trial should Varrecchio attempt to call Wood as a witness in
23-C-603 7 his case-in-chief, which appears to be what Boomtown’s motion in limine intended
to prohibit. Thus, we find that Boomtown has an adequate remedy on appeal in the
event of an adverse ruling on this issue at trial. Under the circumstances presented
in this matter, on the showing made, we find no error or abuse of the trial court’s
discretion in denying Boomtown’s motion in limine as to the witness, Mitchell A.
Wood.
For the foregoing reasons, Boomtown’s writ application is denied.
WRIT DENIED
23-C-603 8 DOMINIC VARRECCHIO NO. 23-C-603
THE LEMOINE COMPANY, L.L.C., ET. COURT OF APPEAL AL. STATE OF LOUISIANA
WICKER, J., DISSENTS WITH REASONS
I have considered the majority’s decision to deny the writ application, and
I respectfully disagree. After a de novo review of this matter, I believe this
Court should reverse the trial court’s judgment and grant Boomtown’s motions
for summary judgment on the issues of liability and spoliation of evidence,
thereby dismissing plaintiff’s case against defendant, Louisiana-1 Gaming, a
Louisiana Partnership-in-Commendam (“Boomtown”).
La. R.S. 9:2800.6 provides that a merchant owes a duty to persons who
use its premises to exercise reasonable care to keep the premises free of any
hazardous conditions. Burns v. Sedgwick Claims Management Services, Inc.,
14-421 (La. App. 5 Cir. 11/25/14), 165 So.3d 147, 153. Pursuant to La. R.S.
9:2800.6, in order to prove that a merchant is liable for damages sustained as a
result of a fall due to a condition that existed on its premises, a plaintiff must
prove by a preponderance of the evidence, through either direct or circumstantial
evidence: 1) the existence of a condition that presented an unreasonable risk of
harm which was reasonably foreseeable; 2) the merchant’s actual or constructive
notice of the condition; and 3) the merchant's failure to exercise reasonable care.
Williams v. Liberty Mutual Fire Ins. Co., 16-996 (La. App. 1 Cir. 3/13/17), 217
So.3d 421, 424, writ denied, 17-624 (La. 6/5/17), 219 So.3d 338.
23-C-603 1 The mover bears the burden of proof on a motion for summary judgment.
La. C.C.P. art. 966(D). However, when the mover will not bear the burden of
proof at trial on the issues raised in the motion, it is only required to point out an
absence of factual support for one or more elements essential to plaintiff’s claim.
Patrick v. Iberia Bank, 05-783 (La. App. 5 Cir. 3/14/06), 926 So.2d 632, 634.
Once the motion for summary judgment has been properly supported, the burden
shifts to the plaintiff to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the moving party is not
entitled to judgment as a matter of law. La. C.C.P. art. 966(D); Campbell v.
Dolgencorp, L.L.C., 19-36 (La. App. 1 Cir. 1/9/20), 294 So.3d 522, 529.
In its motion for summary judgment on liability, Boomtown argued there
is an absence of factual support for plaintiff’s claims, because he cannot prove
the existence of an unreasonable risk of harm in the area of the Boomtown hotel
lobby where he fell or that any such condition was reasonably foreseeable. It
asserted that there was only a negligible change in elevation, if any, between the
carpet and the metal transition strip where plaintiff fell, which did not constitute
an unreasonably dangerous condition. Boomtown further asserted that there was
a visible and apparent differentiation in color and composition between the
carpet, the metal transition strip, and the brown tile, which was noticeable and
obvious. It also contended that there have been no other falls at this location
since the hotel was built in 2015.
In support of its motion for summary judgment on liability, Boomtown
attached the following documents: 1) a New Orleans Flooring invoice; 2) Video
and Screen Captures, in globo; 3) Boomtown’s Daily Security Summary Report
from March 18, 2021; 4) Data Log Report from March 19, 2021; 5) Boomtown’s
Accident Report; 6) Affidavit of Harold McKenzie; 7) Photos; 8) Affidavit of
Patrick Fisher, P.E.; 9) Inspection Report of Fisher Engineering and Consulting;
23-C-603 2 10) Deposition of plaintiff, Dominic Varrecchio; 11) Deposition of Jeannine
Richert; and 12) Deposition of Harold McKenzie.
In his opposition memorandum, plaintiff objected to several of
Boomtown’s exhibits that were filed in support of its motion for summary
judgment. He argued that the affidavit of Jeannine Richert should be excluded,
because while Boomtown referred to it in its memorandum in support of
summary judgment, it was not attached to the motion. However, he did not
object to Ms. Richert’s deposition. Plaintiff also objected to Harold McKenzie’s
deposition, because Mr. McKenzie did not sign it and it did not include a court
reporter’s certificate. However, he did not object to Mr. McKenzie’s affidavit.
Additionally, plaintiff objected to the video and pertinent screen captures, the
New Orleans Flooring invoice, and the Boomtown Daily Security Summary
Report on the grounds that they were unsworn, unverified, and not authenticated.
The majority points out that some of the exhibits Boomtown attached to
its motion for summary judgment included in the writ application are not the
same exhibits that were attached to its motion in the trial court. These exhibits
are the affidavit of Ms. Richert and the reporter’s certification page for Mr.
McKenzie’s deposition. I agree that this Court can only consider exhibits that
were attached to the motion for summary judgment or opposition filed in the trial
court. Therefore, I have not considered Ms. Richert’s affidavit, the reporter’s
certification, or Mr. McKenzie’s deposition in my review of the motion for
summary judgment.3 For purposes of my review, I have considered only those
exhibits to which there was no objection made and therefore, I have also
3 In his memorandum in opposition to the motion for summary judgment, plaintiff indicated that if the exhibits to which he objected are excluded, the only evidence remaining is the affidavit of Mr. McKenzie and Ms. Richert’s deposition. However, there was no objection to the other exhibits listed above, including the affidavit and report of Boomtown’s expert, plaintiff’s deposition, photographs, a data log report, and Boomtown’s accident report.
23-C-603 3 excluded the video and pertinent screen captures, the New Orleans Flooring
invoice, and the Boomtown Daily Security Report from consideration.4
In its decision to deny this writ application, the majority provides that it
“cannot say with certainty that Boomtown has shown that no outstanding issues
of material fact remain.” However, in my view, it is not Boomtown’s burden to
do so. As the mover, Boomtown met its initial burden on a motion for summary
judgment of pointing out an absence of factual support for one or more elements
of plaintiff’s claims. The remaining exhibits submitted in support of
Boomtown’s motion for summary judgment, to which there was no objection,
show an absence of factual support for plaintiff’s claims that there was an
unreasonable risk of harm in the hotel lobby and, importantly, that any such risk
was reasonably foreseeable.
In his deposition, plaintiff agreed that he had visited the Boomtown hotel
approximately 18 times in 2020 and 2021, and he had walked in the lobby at
least that many times before the accident occurred. He testified that he never
saw any defect in the metal strips framing the carpeted areas.
Plaintiff testified that on the date of the incident, he was carrying his bags
in the lobby toward the front desk when he crossed a carpeted area, and the
carpet or padding underneath depressed just enough to create a height
differential that caught the tip of his shoe between the metal strip and the carpet,
causing him fall. The photos attached to plaintiff’s deposition show that any
differential between the metal strip and the carpet was negligible. This evidence
is insufficient to show there was a condition that presented an unreasonable risk
of harm.
4 Although the majority states that Boomtown was not forthcoming with this Court regarding plaintiff’s objections to several exhibits, including those not attached to its motion in the trial court, I strongly disagree. Boomtown’s writ application and exhibits consist of 483 pages, including plaintiff’s opposition memorandum in which he set forth his objections to the exhibits. Further, the transcript of the motion hearing on November 11, 2023, which was also included with the writ application, reflects plaintiff’s objection to the exhibits.
23-C-603 4 Plaintiff also failed to show that any such condition was reasonably
foreseeable. During his deposition, plaintiff was shown photographs of the
lobby and could not identify precisely where he fell, but he identified the area
within which he fell. He recalled inspecting the area months after the accident
and stated that some areas of the carpet depressed more than others, but he did
not indicate where those points were located. Plaintiff stated repeatedly in his
deposition that during his own inspection, he could find no specific spot at which
his foot caused a carpet depression and did not see any evidence of any such
depression. He stated that he had a “pretty certain range” of where he fell but
did not know the exact spot.
Plaintiff testified that the defect that caused him to fall was not
observable, and further provided:
It happened to be a unique circumstance where the depression in the carpet and where my foot was, met the height differential of the metal frame. It’s not something you could observe to the mind’s eye, looking across the floor, you can’t observe it.
Plaintiff admitted that he did not notice any wearing of the carpet, and the
photographs of the area do not show any type or wearing or damage to the
carpet. Plaintiff opined that it was more of a “weight pressure differential” that
was created by stepping on the carpet, but he did not think that anyone, including
a “trained eye,” could see the differential or any potential hazard. He stated that
it was obvious from the photographs that the hazard was not apparent or visible.
Jeannine Richert, the risk and safety manager at the Boomtown hotel,
testified in her deposition that she walked through the area where the accident
occurred many times each day and did not see any issues with the flooring,
tripping hazards, or any depression difference between the carpet and the metal
transition strip.
23-C-603 5 Boomtown also submitted the affidavit of its surveillance director, Harold
McKenzie, in which he stated that he has walked in the area where plaintiff fell
multiple times each week since the hotel opened in 2015 and has never
encountered any dangerous condition. He further stated that he was not aware of
any trip and fall incidents in this area prior to or subsequent to this incident.
In addition, Boomtown attached the affidavit and report of Patrick Fisher,
Boomtown’s engineering expert. In his report and affidavit, Mr. Fisher indicated
that he inspected the entirety of the lobby flooring and there was no condition
that would have caused a misstep to a person walking in a prudent manner. He
stated that the walking surface was properly constructed and presented no
tripping hazards.
Considering the exhibits attached to Boomtown’s motion to which there
was no objection, it is my opinion that Boomtown carried its initial burden of
pointing out an absence of factual support for plaintiff’s claims that there was an
unreasonable risk of harm or defective condition in the flooring of the hotel
lobby, that such a risk was reasonably foreseeable, and that Boomtown had
actual or constructive notice of any dangerous or defective condition. Therefore,
I believe the burden then shifted to plaintiff to present evidence of a genuine
issue of material fact as to either an unreasonable risk of harm or to the
foreseeable nature of any such risk.
In opposition to the motion for summary judgment on liability, plaintiff
submitted his deposition and that of Ms. Richert, but neither of these exhibits
shows that there was an unreasonably dangerous condition, that any such
condition was reasonably foreseeable, that Boomtown had actual or constructive
notice of such condition, or that there are genuine issues of material fact that
preclude summary judgment. To the contrary, I believe that these exhibits
23-C-603 6 support Boomtown’s position. Therefore, I find that plaintiff failed to meet his
burden.
Finding that plaintiff failed to meet his burden of showing a genuine issue
of material fact, I believe Boomtown is entitled to summary judgment on the
issue of liability and dismissal of plaintiff’s claims against it.
Because I would grant summary judgment in favor of Boomtown on
liability, the motion for partial summary judgment on spoliation need not be
addressed. However, I address this issue in an abundance of caution in the event
that spoliation of evidence would entitle plaintiff to any adverse presumption that
would preclude summary judgment.
Louisiana recognizes a cause of action for intentional spoliation of evidence.
Ritter v. Loraso, 17-517 (La. App. 4 Cir. 12/22/17), 234 So.3d 1096, 1100, writ
denied, 18-149 (La. 3/23/18), 239 So. 3d 294. A plaintiff asserting a state law tort
claim for spoliation of evidence must allege that the defendant intentionally
destroyed evidence for the purpose of depriving an opposing party of its use.
Tregre v. Champagne, 16-681 (La. App. 5 Cir. 7/30/17), 224 So.3d 1234, 1241,
writs denied, 17-1463 (La. 11/13/17), 229 So.3d 927, and 17-1470, 17-1477 (La.
11/13/17), 230 So.3d 208. Allegations of negligent conduct are insufficient. Id.
The tort of spoliation of evidence has its roots in the evidentiary doctrine of
“adverse presumption,” which allows a jury instruction for the presumption that
the destroyed evidence contained information detrimental to the party who
destroyed the evidence unless such destruction is adequately explained. Pham v.
Contico Inter. Inc., 99-945 (La. App. 5 Cir. 3/22/00), 759 So.2d 880, 882.
In the present case, there is no evidence whatsoever of intentional
destruction of evidence. In Harold McKenzie’s affidavit, he stated that a “code
blue” is an incident with possible injury and that surveillance footage of such
incidents is always preserved. He stated that the data report log dated March 19,
23-C-603 7 2021, reflects that video surveillance of the incident in this case was preserved in
response to a code blue that was called in on March 18, 2021. Mr. McKenzie
further indicated that on March 23, 2021, Boomtown sustained a server crash due
to factors beyond its control, resulting in the loss of over five years of preserved
video surveillance, as well as unrelated data connected to Boomtown’s business,
including gaming compliance data. He stated that Boomtown hired a data recovery
firm, but it was unable to recover the lost data.
Likewise, in Ms. Richert’s deposition, she testified that plaintiff’s fall was
considered a “code blue,” and when such incidents occur, the responding officer
contacts the surveillance department to preserve the video footage. She stated that
the video surveillance of code blue incidents is preserved and retained in
accordance with Boomtown’s own policies and procedures, regardless of whether
anyone requests preservation of the video evidence. According to Ms. Richert,
video surveillance of this incident was initially preserved after the accident, but
was lost just days later due to a server crash. Ms. Richert testified that Boomtown
spent a great deal of time and “a fortune” in order to recover the data it lost in the
server crash, but recovery efforts were unsuccessful.
With regard to the removal of the carpet and padding, plaintiff argues that
Boomtown should have preserved the carpet, padding, and metal strip for further
inspection by plaintiff and his expert. However, there is no evidence that plaintiff
requested that the flooring materials be preserved for further inspection.
In its motion for partial summary judgment, Boomtown asserted that there is
no evidence that Boomtown intentionally failed to preserve the flooring materials
in order to deprive plaintiff of its use. It indicated that plaintiff personally
inspected the flooring in August of 2022, took photographs, and could have
engaged in further investigation in order to prove his claims.
23-C-603 8 In Ms. Richert’s deposition, she testified that Boomtown had wanted to
change the flooring in the lobby for quite a while, because they could not keep the
carpet clean. She stated that Boomtown gave notice of its intent to change the
flooring to “everyone,” but postponed the flooring replacement until the
inspections for this case were completed. The carpet was then replaced with wood
flooring. While plaintiff suggests that the flooring may have been replaced as a
result of this accident, the accident occurred on March 18, 2021, and the carpet was
not replaced until after the 2022 inspections.
In my opinion, Boomtown pointed out an absence of factual support for both
of plaintiff’s spoliation of evidence claims, because there is no evidence that
Boomtown intentionally destroyed any evidence in this matter in order to deprive
plaintiff of its use. The burden then shifted to plaintiff to show there are genuine
issues of fact precluding summary judgment. However, the evidence plaintiff
submitted with his opposition memorandum, including his deposition and Ms.
Richert’s deposition, do not show any genuine issue of material fact as to
plaintiff’s spoliation of evidence claims.
For these reasons, I would grant summary judgment on both the issues of
liability and intentional spoliation of evidence, and dismiss plaintiff’s case against
Boomtown.
23-C-603 9 DOMINIC VARRECCHIO NO. 23-C-603
THE LEMOINE COMPANY, L.L.C., ET. COURT OF APPEAL AL. STATE OF LOUISIANA
JOHNSON, J., DISSENTS WITH REASONS
I respectfully dissent from the majority disposition denying Relator’s writ.
Upon de novo review, I find that Mr. Varrecchio is unable to meet his burden of
proof on the issue of liability.
Pursuant to La. R.S. 9:2800.6, generally, a defendant/storeowner owes a
duty to a plaintiff to exercise reasonable care to keep its premises in a reasonably
safe condition, free of hazardous conditions. Jones v. Mkt. Basket Stores, Inc.,
22-841 (La. 3/17/23), 359 So.3d 452, 462. In addition to proving that the
condition presented an unreasonable risk of harm that was reasonably
foreseeable, the plaintiff must also prove that the merchant either created or had
actual or constructive notice of the condition which caused the damage prior to
the occurrence. Thompson v. Dollar Up LA LLC, 22-397 (La. App. 5 Cir.
3/29/23), 365 So.3d 149, 153-54, reh’g denied (La. App. 5 Cir. 4/13/23), citing
Bryant v. Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir. 3/17/20), 292 So.3d
190, 196. The failure to prove any of the requirements enumerated in La. R.S.
9:2800.6 is fatal to a plaintiff's cause of action. Id.
In November 2023, Mr. Varrecchio filed an Opposition to Defendant’s
Motion for Summary Judgment, in which he objected to many of Boomtown’s
exhibits. However, he ceded that there were no issues with Jeannine Richert’s
deposition or Harold McKenzie’s affidavit. The testimony of Richert,
Boomtown’s safety and risk manager, and McKenzie, the company’s
23-C-603 1 surveillance director, as well as Mr. Varrechio’s deposition, supported
Boomtown’s claims that it had no knowledge of the area in question being
unreasonably dangerous, and that no other trip and fall accidents occurred at the
site of Mr. Varrechio’s accident from the time the hotel opened in 2015 until the
flooring was replaced in 2022. Mr. Varrecchio himself had travelled across the
lobby, at least sixteen times prior to his fall, without incident. He also
referenced, without an objection, the affidavit of Patrick W. Fisher, P.E.,
Boomtown’s expert. Mr. Fisher inspected the accident site more than a year
after the accident; he reported that there was no observed wear of the carpet or
the underlying padding at the location adjacent to a metal transition strip, or any
defect in the metal transition strips. He concluded that “the floor area in question
[did] not pose an unreasonable risk of harm because it was neither wide enough
or deep enough to create a risk for a person exercising reasonable care.”
Mr. Varrecchio has presented no evidence, besides his deposition1, in
support of his claims that the metal transition strip between the carpeted and tiled
areas of the hotel’s front lobby posed an unreasonably dangerous condition, or
that Boomtown had actual or constructive knowledge of, or created, the
condition. The opposition does not present genuine issues of material fact
regarding the elements Mr. Varrecchio has to prove. Boomtown is not disputing
that he tripped, fell, and injured himself. Additionally, Mr. Varrecchio chose not
to have his own expert examine the flooring, or to observe Boomtown’s expert’s
inspection. A plaintiff may not satisfy his/her burden on summary judgment by
relying on allegations and uncorroborated, self-serving testimony in response to
the defendant's properly made and supported motion for summary judgment.
Caminita for & on Behalf of Caminita v. Roman Catholic Church of Archdiocese
1 Mr. Varrecchio also attached the deposition of Ms. Richert as an exhibit in support of his opposition. However, her deposition does not support his claims regarding the condition of the metal transition strip and flooring.
23-C-603 2 of New Orleans, 20-54 (La. App. 5 Cir. 7/8/20), 299 So.3d 1269, 1272. Once the
motion for summary judgment has been properly supported by the moving party,
the failure of the adverse party to produce evidence of a material factual dispute
mandates the granting of the motion. Id., citing Babin v. Winn-Dixie La., Inc.,
00-78 (La. 6/30/00), 764 So.2d 37, 40. Although the owner of a commercial
establishment has an affirmative duty to keep the premises in a safe condition, he
is not the insurer of the safety of his patrons. Trench v. Winn-Dixie Montgomery
LLC, 14-152 (La. App. 5 Cir. 9/24/14), 150 So.3d 472, 476. A store owner is not
liable every time an accident happens. Id.
Accordingly, I would grant Boomtown summary judgment on the issue of
liability.
23-C-603 3 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JANUARY 31, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-C-603 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DONALD L. FORET (DISTRICT JUDGE) D. RUSSELL HOLWADEL (RELATOR) KYLE M. TRUXILLO (RELATOR) JASON J. MARKEY (RESPONDENT) LEO J. PALAZZO (RESPONDENT) MARIO A. ARTEAGA, JR. (RESPONDENT)
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