Musacchia v. Hilton New Orleans Corp.

876 So. 2d 901, 2003 La.App. 4 Cir. 1100, 2004 La. App. LEXIS 1524, 2004 WL 1345283
CourtLouisiana Court of Appeal
DecidedJune 2, 2004
DocketNo. 2003-CA-1100
StatusPublished

This text of 876 So. 2d 901 (Musacchia v. Hilton New Orleans Corp.) 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
Musacchia v. Hilton New Orleans Corp., 876 So. 2d 901, 2003 La.App. 4 Cir. 1100, 2004 La. App. LEXIS 1524, 2004 WL 1345283 (La. Ct. App. 2004).

Opinion

TERRI F. LOVE, Judge.

Defendants, the Queen of New Orleans and Russell Ribando, appeal the trial court’s judgment awarding damages of $308,549.92, with interest, to plaintiff, Mu-sacchia for injuries he sustained while attempting to leave the Queen of New Orleans. It is from this judgment that both defendants, the Queen of New Orleans and Russell Ribando appeal. For the following reasons, we affirm the trial court’s finding.

FACTS AND PROCEDURAL HISTORY

In the case at bar it is uncontroverted that on February 17, 1994, plaintiff Nicholas J. Musacchia, Jr. (“Musacchia”) and his cousin and third party defendant, Russell Ribando (“Ribando”) frequented defendants/appellants, the Queen of New Orleans at the Hilton Joint Venture, Hilton Hotels Corporation, Hilton New Orleans Corporation, and New Orleans Paddle-wheels, Inc. (collectively “Queen of New Orleans”). The Queen of New Orleans was a casino gaming vessel, operating | ¡.from the Poydras Street Wharf adjacent to the Riverwalk shopping mall in New Orleans. Although the Queen of New Orleans was built with elevator access, the elevator was not yet operational during its first weeks of business. The vessel could only be accessed by a boarding ramp between the vessel and a shore side boarding structure, which required patrons to either climb a stairway up the boarding structure from the wharf, or come down that stairway from the top of the boarding structure, which was reached from the Mezzanine level of the Hilton Hotel. Musacchia, who was wheelchair bound, received assistance from the employees of the Queen of New Orleans in boarding and leaving the vessel. It was upon leaving the vessel that Musacchia incurred injuries as a result of an accident on the stairway at the Queen of New Orleans.

The plaintiff and defendants all provide differing accounts as it pertains to the occurrence and causation of accident that occurred on February 17, 1994. Musacc-hia avers that on February 17, 1994, he and his cousin Ribando decided to visit the Queen of New Orleans, which had only been open for a couple of weeks. Upon their arrival, they were informed that the elevator, which would deliver them from the Mezzanine level of the Hilton Hotel to the boarding ramp level of the Queen of New Orleans, was not yet completed. Mu-sacchia agreed to allow three casino employees to roll him, in his wheelchair, down the flight of stairs from the hotel to the boarding ramp level. Musacchia avers that several steps down, one of the men holding him lost grip and his chair fell backwards onto the stairs; however, Mu-sacchia was able to support himself with [904]*904the railing so that he did not fall. Musacc-hia further testified that Ribando had attempted to assist the casino employees with bringing Musacchia down the steps, but was prevented from assisting by the casino employees. Musacchia contends that he was carried down lathe remainder of the stairs without incident and both he and Ribando boarded the vessel and gambled for approximately three hours. The two men decided to leave around 11:00 p.m., at which time they met a couple of employees on the boarding ramp who told Musacchia that they planned to bring him down two flights of stairs to the parking lot rather than up one flight to the Hilton Mezzanine level. Musacchia insisted they carry him up the same flight of stairs they used before because it was a shorter distance and he felt it was safer. Musacchia turned his wheelchair around and backed up to the bottom step. Two vessel employees positioned themselves in front of him, and he was waiting for a third to come around from behind when the employee on his right side bent down and picked up on the front, right corner of his chair, causing the chair to roll forward and Musacchia to fall backwards, striking his neck and back on the cement steps.

The Queen of New Orleans alleges that Musacchia and Ribando approached the vessel boarding area; they were advised that the boarding structure elevator was not yet operational. Musacchia chose to be carried down the boarding structure from the Hilton Mezzanine level by three male casino employees. Shortly after 11:00 p.m., Musacchia and Ribando decided to leave and approached the boarding ramp. Jacques Legrand, (“Legrand”) a Queen of New Orleans deckhand, was stationed on the vessel at the boarding ramp and told Musacchia to hold up a moment because he needed help leaving the vessel. Legrand testified the casino employees had been trained in the assistance of wheelchair bound patrons, specifically including the carrying of such patrons. Both Michael Petit (“Petit”) and Ernest Bandy (“Bandy”), also Queen of New Orleans employees, were in the vicinity and offered to assist. An employee was positioned on both sides of Musacchia’s wheelchair, while Ribando positioned himself behind the chair. Defendants aver that before Petit and Bandy were ready, Riban-do pulled the chair from under Musacchia, causing Musacchia to fall forward. Bandy caught Musacchia before he could fall all the way to the deck and placed him back in his wheelchair. Petit testified that, before they attempted to carry Musacchia, he radioed for two other casino employees to assist, so there would be five casino employees to carry Musacchia up the stairs. However, before they were in place, Ri-bando lifted up Musacchia’s chair, causing him to fall from his chair. Petit prepared an accident report that evening, which was consistent with this version of the event.

Third party defendant, Ribando testified to a different version of events, claiming that he was not involved in the allegedly injurious lift, but was merely standing several steps behind Musacchia, watching the Queen of New Orleans’ employees.

The trial court held that the Queen of New Orleans’ conduct constituted breach of its duty to provide a safe manner of ingress and egress from its vessel, and that his negligent conduct caused injury to plaintiff.

LEGAL ANALYSIS

Both defendants, the Queen of New Orleans and Russell Ribando appeal the judgment of the trial court. On appeal, the Queen of New Orleans at the Hilton Joint Venture, Hilton New Orleans Corporation, Hilton Hotels Corporation and New Orleans Paddlewheels, Inc., (the Queen of [905]*905New Orleans) allege four assignments of error:

1.The trial court erred in holding that the Queen of New Orleans was negligent, and that any such negligence was a legal cause of this accident;
2. The trial court erred in failing to asses any comparative fault to the Musacchia;
3. The trial court erred in assessing only 10% fault to Ribando; and
4. The trial court erred in awarding excessive damages;

Defendant Russell Ribando also alleges four assignments of error:

1. The trial court erred in assessing any fault to Ribando;
2. The trial court erred in awarding Musacchia damages;
3. The trial court erred in applying maritime law to the Third Party Demand asserted by defendants, the Queen of New Orleans, against Ri-bando; and
4. The trial court erred in awarding prejudgment interest against Riban-do from the date Musacchia filed suit and not when Ribando was made a party.

The issues presented in this appeal consist primarily of questions of fact. The Louisiana Supreme Court announced a two-part test for the reversal of a fact finder’s determinations:

1.

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876 So. 2d 901, 2003 La.App. 4 Cir. 1100, 2004 La. App. LEXIS 1524, 2004 WL 1345283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musacchia-v-hilton-new-orleans-corp-lactapp-2004.