Lynn Robinson v. Bossier Casino Venture, LLC d/b/a Margaritaville Resort Casino

• Court: Louisiana Court of Appeal
• Decided: November 16, 2022
• Docket: 54,787-CA
• Status: Published

Opinion

Judgment rendered November 16, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,787-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

LYNN ROBINSON Plaintiff-Appellant

versus

BOSSIER CASINO VENTURE, Defendant-Appellee LLC D/B/A MARGARITAVILLE RESORT CASINO

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 161,690

Honorable Robert Lane Pittard, Judge

THE LAW OFFICE OF ALLEN COOPER, LLC Counsel for Appellant By: J. Allen Cooper, Jr. Pamela King Newlen

LUNN IRION LAW FIRM, LLC Counsel for Appellee BY: Alexander J. Mijalis Harold R. Bicknell, III

Before COX, STEPHENS, and MARCOTTE, JJ. MARCOTTE, J.

In this trip and fall case, plaintiff, Lynn Robinson, appeals the trial

court’s judgment granting the motion for summary judgment filed by

defendant, Bossier Casino Venture, LLC d/b/a Margaritaville Casino

(“Margaritaville”). For the following reasons, we affirm the trial court’s

judgment.

FACTS

On February 23, 2019, plaintiff tripped and fell on an entrance rug

near the front door of Margaritaville. On February 10, 2020, plaintiff filed a

petition for damages naming Margaritaville as a defendant. Plaintiff claimed

there was a raised edge, buckle, or another anomaly in the floor mat placed

at the entranceway of Margaritaville that caused her to fall and sustain

injuries to her head, back, hip, and knee. Plaintiff further asserted that prior

to her fall, defendant knew or should have known of the unreasonably

dangerous condition and that, despite this knowledge, defendant did not

timely act to remedy the dangerous condition or warn plaintiff of it.

On May 19, 2021, defendant filed a motion for summary judgment

claiming plaintiff could not carry her burden of proof under the Merchant

Liability Statute, La. R.S. 9:2800.6, that there was an unreasonably

dangerous condition that caused her fall. Defendant claimed that the

surveillance video of the incident shows that the entrance rug was lying flat

on the floor, free of any ripples, buckles, or other anomalies.

Plaintiff opposed the motion for summary judgment on the grounds

that there were genuine issues of material fact as to whether the placement

and condition of the entrance rug at issue created an unreasonably dangerous

condition. In support of her opposition, plaintiff offered her deposition testimony wherein she testified that she knew she tripped over the rug

because when she looked back after her fall, she saw that the rug was flipped

up. Plaintiff asserted that, contrary to defendant’s contentions, the

surveillance video shows a ripple in the rug causing the edge of the rug to

buckle and not sit flat against the floor.

Plaintiff also offered the deposition testimony of Harold Singley, the

Margaritaville security officer who investigated plaintiff’s fall. In particular,

plaintiff relied on Mr. Singley’s testimony that, based upon his viewing of

the surveillance video, something “look[ed] a little different” about an area

of the rug that was “somewhat” near the spot where plaintiff’s foot tripped

on the rug. Plaintiff argued that Mr. Singley’s testimony shows that the rug

was an unreasonably dangerous condition. In support of her claim that

Margaritaville had actual and/or constructive notice, plaintiff relied on the

surveillance video and Mr. Singley’s testimony that there were multiple

Margaritaville employees stationed at a location near the entrance rug.

Defendant asserted that plaintiff cannot establish an unreasonably

dangerous condition existed. Defendant stated that throughout the video, the

purported anomaly does not change as any person walks over that portion of

the entrance rug. Defendant argued that plaintiff’s claim of an anomaly in

the entrance rug relies on the two video angles farthest from the actual

entrance, and that in the videos taken from the side of the entrance rug that

would show the purported anomaly, there is no anomaly to be seen.

Defendant further stated even if an anomaly existed, plaintiff does not walk

over the anomaly, but rather she clearly walks to the side of where the

anomaly is purported to be and drags her right toe under the rug causing her

fall. 2 Finally, defendant asserted that since plaintiff did not provide any

evidence which would demonstrate that the entrance rug was unreasonably

dangerous, there is no evidence that Margaritaville knew or should have

known the entrance rug presented any risk to patrons entering the casino.

On January 31, 2022, the trial court held a hearing on the motion for

summary judgment and ruled in favor of Margaritaville. The trial court

judge noted that he watched the surveillance video at issue and did not see

any anomaly in the entrance rug. Rather, the trial court found that upon

entering the casino, plaintiff tripped and fell on her own feet. As such, the

trial court ruled that there was no unreasonably dangerous condition with the

entrance rug and thus no issue of actual or constructive notice. On February

11, 2022, the trial court signed a judgment consistent with its ruling.

Plaintiff appeals the trial court’s ruling granting defendant’s motion for

summary judgment.

DISCUSSION

On appeal, plaintiff asserts that the trial court erred in finding there is

no genuine issue of material fact regarding whether Margaritaville’s

entrance rug posed an unreasonably dangerous condition before her fall.

Plaintiff also asserts that the trial court erred in finding no genuine issue of

material fact regarding whether Margaritaville knew or should have known

of the hazardous condition prior to plaintiff’s fall.

A summary judgment is reviewed on appeal de novo, with the

appellate court using the same criteria that govern the trial court’s

determination of whether summary judgment is appropriate, i.e., whether

there is any genuine issue of material fact, and whether the movant is

entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La. 3 2/26/08), 977 So. 2d 880. 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. Nevertheless, if the mover

will not bear the burden of proof at trial on the issue that is before the court

on the motion for summary judgment, the mover’s burden on the motion

does not require him to negate all essential elements of the adverse party’s

claim, action, or defense, but rather to point out to the court the absence of

factual support for one or more elements essential to the adverse party’s

claim, action, or defense. The burden is on the adverse party to produce

factual support sufficient to establish the existence of a genuine issue of

material fact or that the mover is not entitled to judgment as a matter of law.

La. C.C.P. art. 966(D)(1).

To reverse the trial court’s decision, this court would have to find on

de novo review that the record reveals a genuine issue of material fact which

precludes summary judgment as a matter of law. White v. Louisiana Dep’t

of Transp. & Dev., 18-741 (La. App. 3 Cir. 3/13/19), 269 So. 3d 1031, writ

denied, 19-0572 (La. 5/28/19), 273 So. 3d 311. A fact is material if it

potentially ensures or precludes recovery, affects a litigant’s ultimate

success, or determines the outcome of the legal dispute. A genuine issue is

one as to which reasonable persons could disagree; if reasonable persons

could reach only one conclusion, there is no need for a trial on that issue and

summary judgment is appropriate. Maggio v. Parker, 17-1112 (La.

6/27/18), 250 So. 3d 874.

4 The burden of proof for a claimant in a slip-and-fall lawsuit against a

merchant is set forth in La. R.S. 9:2800.6, which provides, in part:

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

C. Definitions:

(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

Plaintiffs who slip and fall in a merchant’s premises bear a heavy

burden of proof. Failure by a plaintiff to prove any of the three required

elements in La. R.S. 9:2800.6(B) is fatal to the plaintiff’s case. McDonald v.

PNK (Bossier City), LLC, 53,561 (La. App. 2 Cir. 9/23/20), 304 So. 3d 143,

writ denied, 20-01416 (La. 2/9/21), 310 So. 3d 179; Gregory v. Brookshire

Grocery Co., 45,070 (La. App. 2 Cir. 4/21/10), 35 So. 3d 458.

5 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. Ferlicca v. Brookshire Grocery Co., 50,000 (La. App.

2 Cir. 9/4/15), 175 So. 3d 469. A store owner is not liable every time an

accident happens. Hardman v. Kroger Co., 34,250 (La. App. 2 Cir.

12/6/00), 775 So. 2d 1093.

Plaintiff asserts that she produced evidence identifying a hazard of a

buckle, ripple, or other anomaly in Margaritaville’s entrance rug. Plaintiff

relies on the surveillance video and the testimony of Margaritaville security

guard Harold Singley that, upon viewing the surveillance video, something

looked “a little different” to him about part of the entrance rug that was

“somewhat near” where plaintiff fell.

Upon de novo review, we find that plaintiff cannot satisfy her burden

of proving that a condition presenting an unreasonable risk of harm existed,

or that Margaritaville had actual or constructive notice of the condition

which allegedly caused damages resulting from plaintiff’s fall, prior to the

fall. Specifically, plaintiff cannot show that there was a buckle, ripple, or

other anomaly in the entrance rug prior to her fall. Although the video

shows several employees in the vicinity of plaintiff’s fall, plaintiff cannot

show that there was a hazardous condition in the entrance rug, much less

that any hazard existed for some period of time before her fall.

In fact, plaintiff admits in her deposition that she did not notice the

buckle or other anomaly in the floor mat until after she fell. Numerous other

patrons traversed the same mat upon entering the casino and none of them

had any issues with it. It was only after her fall that plaintiff noticed a

6 buckle or other anomaly and concluded that the buckle or other anomaly

must have been the cause of her fall.

Mere conclusory allegations, improbable inferences, and unsupported

speculation will not support a finding of a genuine issue of material fact.

Johnson v. Lowe's Home Centers, LLC, 52,602 (La. App. 2 Cir. 4/10/19),

267 So. 3d 1198. Even if contained in a deposition, such inferences,

allegations, and speculation are not sufficient to satisfy the opponent’s

burden of proof. Hazelett v. Louisiana-1 Gaming, 16-297 (La. App. 5 Cir.

12/21/16), 210 So. 3d 447.

Plaintiff is unable to produce any evidence other than conclusory

allegations in her pleadings and her own self-serving statements regarding

the entrance rug. Therefore, plaintiff is unable to meet her burden of

showing that a defect in the rug existed that created an unreasonably

dangerous condition. Because we find no unreasonably dangerous

condition, any discussion of actual or constructive notice or the exercise of

reasonable care is pretermitted.

The surveillance video demonstrates that prior to plaintiff’s fall the

rug was lying flat on the floor without any bumps, buckles, or other

anomalies and that numerous patrons of the casino entered through the same

door and traversed the same entrance rug without issue. In fact, the video

demonstrates that the only time the entrance rug becomes disturbed is after

plaintiff trips on it.

In light of the foregoing, we find that the surveillance video evidence

shifted the burden to plaintiff to produce factual evidence sufficient to

establish that she would be able to satisfy her evidentiary burden of proof at

trial with respect to the unreasonably dangerous element. However, to 7 attempt to satisfy her burden, plaintiff primarily relies upon the surveillance

video evidence reviewed above, in which we did not find any factual support

for her contention that a condition existed that presented an unreasonable

risk of harm to her.

The only other evidence plaintiff relies upon to attempt to establish

the existence of an unreasonably dangerous condition is the deposition

testimony of Margaritaville security guard Mr. Singley. However, Mr.

Singley’s testimony that something “look[ed] a little different” about an area

of the rug that was “somewhat” near where the accident occurred is not

sufficient to create a genuine issue of material fact. We find it significant

that Mr. Singley was speaking only as to his impressions after being shown

the surveillance video in his deposition, rather than as to anything he

actually observed about the rug prior to plaintiff’s fall.

Absence of corroborating evidence means that there is no genuine

issue of material fact. King v. Allen Court Apartments II, 15-0858 (La. App.

1 Cir. 12/23/15), 185 So. 3d 835, writ denied, 16-0148 (La. 3/4/16), So. 3d

1069. Thus, the trial court’s grant of defendant’s motion for summary

judgment was appropriate.

CONCLUSION

For the foregoing reasons, we affirm. The costs of the appeal are

assessed to the appellant.

AFFIRMED.

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