Opinion
CIVIL ACTION NO. 95-1805, SECTION "T".
October 22, 1996
ORDER
Before this Court is a Motion for Summary Judgment by defendant, Grand Casinos of Mississippi, Inc. — Gulfport (Grand). Based upon the record, the memoranda and attachments thereto, the applicable law and for the reasons set forth below, the Motion for Summary Judgment is GRANTED.
I. Background
Plaintiff, Dorothy Greco, was a patron at the Grand on or about the 26th day of November 1995. Plaintiff fell and sustained injuries after attempting to sit on a stool in front of a slot machine. Specifically, plaintiff saw the stool to her immediate right and while attempting to put money in the machine she reached back to pull the stool to her. Simultaneously, plaintiff began to sit, but the stool was no longer there which resulted in the plaintiff losing her balance and falling to the floor.
Plaintiff argues that the Grand failed to assess the number of available stools in the nickel poker machine area at the time of the accident in comparison to the number of patrons, and the Grand should have reasonably anticipated that patrons would snatch the stools from beneath other patrons.
II. The Standard for Summary Judgement
Federal Rule of Civil Procedure 56(c) states that summary judgment shall be rendered when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." The Fifth Circuit has explained that "[t]he Supreme Court has defined material facts as those that will affect the outcome of the lawsuit under governing law." The Fifth Circuit further explained that "a genuine dispute requires more than a showing of some metaphysical doubt — there must be an issue for trial." Answering the question of burden of proof, the Fifth Circuit has held that:
Meyers v. M/V Eugenio C, 919 F.2d 1070, 1072 (5th Cir. 1990);citing Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2509-10 (1986).
Id.; citing Matsusita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1355-56 (1986).
Respecting evidentiary burdens, we note that once the moving party demonstrates the lack of genuine issue of a material fact, the burden shifts to the non-moving party to designate specific facts that establish an issue for trial.
Meyers, 919 F.2d at 1072, citing Celotex Corp. v. Cattrett, 106 S.Ct. 2548, 2552-53 (1986).
Further, conclusory allegations are insufficient to defeat a motion for summary judgment when the moving party has met its summary judgment burden.
See e.g. Campbell v. Sonat Offshore Drilling, Inc., reh'g denied, 986 F.2d 1420 (5th Cir. 1993); Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (1992).
III. Analysis
Because jurisdiction is based upon diversity of citizenship, the choice-of-law principles of Louisiana apply in this case. Under Louisiana's choice-of-law principles, Mississippi law controls in this case. Mississippi has the most significant contacts and the greater interest in the application of its laws. The alleged accident and the alleged negligence occurred in Mississippi. The only interest the State of Louisiana has in this action is that plaintiff is one of its citizens. The remaining contacts are entirely in Mississippi, therefore Mississippi law governs.
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021 (1941).
Louisiana Civil Code arts. 3542 and 3515.
Under Mississippi law, the Grand is not the insurer of the safety of its patrons. Rather, the owner or operator of a business premises owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition and is under a duty to warn the invitee of such dangerous condition. Further, the invitee is still required to use in the interest of his own safety that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstances.
Jerry Lee's Grocery, Inc. v. Thompson, 528 So.2d 293 (Miss. 1988).
Jerry Lee's, supra.; Waller v. Dixieland Food Stores, Inc., 492 So.2d 283 (Miss. 1986); Fulton v. Robinson Industries, Inc., 664 So.2d 170 (Miss. 1995).
Fulton, 664 So.2d at 170 (Miss. 1995).
In Fulton v. Robinson, plaintiff allegedly slipped and fell in a commercial parking lot covered by snow, slush, ice, and sleet. The Mississippi Supreme Court examined whether a customer can "normally encounter" or "expect" such conditions and whether those conditions are "unusual" or "usual," in an effort to determine if a jury question existed. The court found that because the accident occurred during wintertime, the conditions were normal and usual and the plaintiff could expect to encounter such conditions.
Id.
Fulton, 664 So.2d at 175.
Id.
Applying those guidelines, the conditions plaintiff encountered can not be considered unusual, as this was not plaintiff's first trip to the Grand, i.e., plaintiff testified that she had a preference to the type of slot machine she played. Because plaintiff was familiar with the surroundings, she had the opportunity to note that the stools were not stationary. Moreover, plaintiff had prior knowledge that the stools were not permanently positioned. She testified, "I was getting ready to pull it under me." Obviously, plaintiff was aware of the conditions and what could be expected. However, plaintiff failed to exercise the standard of care required to protect her own safety. Pointedly, she attempted to sit down before she made certain she had somewhere to sit. Plaintiff's inattentiveness resulted in her fall, not an unreasonably safe condition of the casino.
Plaintiff deposition p. 15.
Plaintiff deposition p. 16.
See, Fulton at 175.
Plaintiff's situation is not unlike that experienced by the appellee in Terrell Investment Co. v. Dunn. Dunn filed suit after suffering a fall while attempting to sit in a funeral home chair, claiming that the arrangement of the chairs proximately caused her injuries. However, the court found that appellee was aware of how the chairs were placed and consequently, the appellant could not have reasonably foreseen an injury as a result of the furniture arrangement. The court held that an owner is "not required to anticipate an unusual and improbable result, such as the injury sustained in this case. The owner is merely required to anticipate . . . such a result as is reasonably foreseeable."
253 Miss. 589 (1965).
Id. at 589. Mrs. Dunn charged that the chairs were placed too close to each other, resulting in her catching her foot in a rung of the chair in front of her, falling, and breaking her kneecap.
Id. The chairs were placed as they usually and customarily were placed during a funeral.
Id. citing Richards Theaters v. Price, 211 Miss. 879 (1951);Gulf Refining Company v. Williams, 183 Miss. 723 (1938);Louisiana Oil Corp. v. Davis, 172 Miss. 126 (1935).
Plaintiff asserts that an inappropriate number of available stools proximately caused her injuries. However, like appellee above, plaintiff was aware of the sitting arrangements. Also, the Grand is not required to anticipate an unusual and improbable result. The probability of a patron falling because the Grand provides one stool per slot machine is tenuous at best. The Grand could not have foreseen the alleged accident based upon the ratio of stools per patron. Plaintiff has failed to prove that the Grand unreasonably cared to keep the premises in a safe condition. Whether there was one stool available or a hundred, the safety of the casino does not come into question when a patron fails to pay attention to where she is sitting.
In the same vein, the Grand cannot be held liable simply because an accident occurred on its premises. The plaintiff must prove that a dangerous condition existed and either (1) that the Grand or its employees through negligence, created the condition or (2) a third person unconnected with the casino caused the condition and the Grand had either actual or constructive knowledge of the dangerous condition. Constructive knowledge is established by proof that the condition existed for such a length of time that in the exercise of reasonable care, the owner or occupier should have know of it.
Munford Inc. v. Fleming, 597 So.2d at 1282, 1284 (Miss. 1992);Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss. 1986).
Douglas v. Great Atlantic Pacific Tea Co., 405 So.2d 107, 120 (Miss. 1981); Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 584 (1963).
Plaintiff contends that the dangerous condition existed due to an insufficient number of stools. Yet, she testified that there was a stool in front of each slot machine. Most slot machines, if not all, are designed to be played by one patron at a time. Thus, because the Grand placed a stool in front of each machine, there was a sufficient number of stools for the patrons of the slot machines and no dangerous condition existed.
Plaintiff deposition pp. 43-45.
Plaintiff admits that there were no employees in the area in question at the time of her fall. Because no Grand employees were in the area at the time of her fall, defendant nor its employees could have created the condition nor did the Grand have constructive knowledge of any dangerous condition.
Plaintiff deposition pp. 16-17.
The plaintiff fails to establish that the premises was in an unreasonably safe condition or that a dangerous condition existed and the Grand had knowledge of it. Finding that the Grand has met its burden for summary judgment, and that no genuine issues of material fact exist, the Grand's motion for summary judgment is hereby GRANTED.