Opinion
Civil Action No. 99-2619 Section "R"(4)
September 19, 2001
ORDER AND REASONS
Before the Court is defendant Pelican Gaming, Inc.'s motion for summary judgment, seeking to dismiss plaintiff Jayne Martha Moore's negligence claims. For the following reasons, the Court grants defendant's motion.
I. Background
On June 4, 1999, plaintiff Jayne Martha Moore alleges that she tripped and fell when her foot got caught on a piece of nylon twine partially hidden under a floor mat in the breezeway of Lucky Jacks Casino. Moore contends that as a result of the fall, she injured her shoulder. Plaintiff now brings a negligence action against Pelican Gaming, Inc., d/b/a Lucky Jacks Casino. Defendant moves to dismiss plaintiff's action on the grounds (1) that plaintiff's claim falls under the Louisiana merchant slip and fall statute, La. Rev. Stat. Ann. § 9:2800.6 (West 2001); and (2) that plaintiff fails to present any evidence showing that defendant either created or had actual or constructive notice of the condition that caused the damage.
II. Discussion
(1) Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party will bear the burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial. See Id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
(2) Negligence
The parties disagree over whether this negligence action should be governed by La. Civ. Code arts. 2315 and 2316 or La. Rev. Stat. Ann. 19:2800.6. Generally, to establish defendant's negligence under Louisiana law, plaintiff must show: "(1) the conduct in question was the cause-in-fact of the resulting harm; (2) defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by defendant; [and] (4) the risk of harm was within the scope of protection afforded by the duty breached. Peterson v. Gibraltar Savings and Loan, 733 So.2d 1198, 1203-04 (La. 1999) (citing numerous cases). if plaintiff is injured in a fall on a merchant's premises, however, she bears the additional burden of proving:
(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.
La. Rev. Stat. Ann. 5 9:2800.6(3). See White v. Wal-Mart Stores, Inc., 699 So.2d 1081, 1084 (La. 1997) ("This statute is clear and unambiguous. The statute uses the mandatory "shall. Thus, in addition to all other elements of his cause of action, a claimant must also prove each of the enumerated requirements of Section (B).").
The first question before this Court is whether Lucky Jacks Casino was a "merchant" as defined by La. Rev. Stat. Ann. S 9:2800.6. Plaintiff argues that La. Rev. Stat. Ann. § 9:2800.6 is inapplicable here because a casino's business is not to sell goods, foods, wares or merchandise. Instead, plaintiff contends that a casino provides "gambling services' and should therefore be held to negligence standards established by La. Civ. Code. arts. 2315 and 2316. In examining all the facts, the Court disagrees with plaintiff.
Lucky Jacks Casino closed in July of 1999 when video poker was banned in Tangipahoa Parish.
The statute in issue defines a "merchant" as "one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business." La. Rev. Stat. § 9:2800.6(2). Lucky Jacks Casino was part of a truck stop in Hammond, Louisiana, which also consisted of a separately owned restaurant. The facility had a video poker area that not only provided access to gambling devices, but also sold beer and provided food to its customers as a regular part of its business. Indeed, Lucky Jacks Casino did not segregate the beer and food from the video poker. That Lucky Jacks Casino sold beer in the course of its business renders the statute applicable. The statute does not state that the business' sole activity must be the sale of goods, wares or merchandise. Further, that Lucky Jacks also provided food to its customers as part of its commercial operation, although apparently without a separate charge, makes it functionally similar to a restaurant with entertainment, which would be covered by the merchant's statute. Moreover, Lucky Jacks ran a merchandise booth where customers could exchange credits earned from gambling for merchandise, such as televisions, VCR's, fishing poles, and t-shirts. (Def.'s Not. Suns. J., Ex. D, McDonald Aff., ¶ 8.) Although sales of merchandise did not take place, the distribution of this merchandise was also part and parcel of Lucky Jacks Casino's commercial operation.
Moreover, the Court notes that in Neal v. Players Lake Charles, LLC, the Louisiana Court of Appeal for the Third Circuit, without discussion, found that a casino was a merchant for the purposes of La. Rev. Stat. Ann § 9:2800.6. See 787 So.2d 1213, 1215 (La.App. 3 Cir. 2001). Further, in Nucalo v. Cookbook Lounge, 761 So.2d 84, 86 (La.App. 5 Cir. 2000), a Louisiana appellate court applied the merchant statute to a lounge that sold alcohol and provided entertainment, which are similar to the activities of the establishment involved here.
Finally, this case is different from those cases in which Louisiana courts have found La. Rev. Stat. 9:2800 to be inapplicable. See Green v. Orleans Parish School Board, 780 So.2d 1082 (La.App. 4 Cir. 2001) (refusing to apply merchant liability to a slip and fall that occurred at a middle school); Lachico v. First Nat'l Bank Shares, Inc., 673 So.2d 305 (La.App. 1 Cir. 1996) (refusing to apply merchant liability under Louisiana slip and fall statute to a bank); Reynolds v. St. Francis Medical Ctr., 597 So.2d 1121 (La.App. 2 Cir. 1992) (declining to extend merchant status to hospital and holding that the business of hospital is to render medical services and not to "sell goods, foods, wares, or merchandise," even though there was a gift shop and a cafeteria on the premises). Unlike those cases, Lucky Jacks Casino sold entertainment and goods in an integrated commercial setting. (Def.'s Hem. Supp. Not. Summ. J., Ex. 1, MacDonald Aff. ¶ 6.)
For the foregoing reasons, the Court finds that Lucky Jacks Casino is a merchant pursuant to Louisiana's slip and fall statute, and it will analyze plaintiff's claim under that statute.
C. Constructive Notice
Under La. Rev. Stat. Ann. § 9:2800.6, plaintiff must prove that the merchant "either created or had actual or constructive notice of the condition which created the damage prior to the occurrence." La. Rev. Stat. Ann. § 9:2800.6(9)(2). The statute defines "constructive notice' to mean that "the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La. Rev. Stat. Ann: § 9:2800.6(C).
In White v. Wal-Mart Stores, Inc., 699 So.2d 1081, 1085 (La. 1997), the Louisiana Supreme Court examined the statute's constructive notice requirement and held that plaintiff has the burden to show that the condition existed for some period of time. In White, the court held that plaintiff who failed to make a positive showing of the existence of the potentially harmful condition prior to the actual fall failed to carry the burden of proof mandated by the statute. See id. at 1084 ("Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some period of time prior to the fall.") The Louisiana Supreme Court further held that the temporal element in the definition of constructive notice must be proven by "positive evidence." Id. The requirement for "positive evidence" may be satisfied by presenting either direct or circumstantial evidence. See Crawford v. Ryan's Family Steak Houses, Inc., 741 So.2d 96, 101 (La.App. 2 Cir 1999).
The Louisiana Supreme Court further elaborated on plaintiff's burden to satisfy the "constructive notice" requirement of the statute in Babin v. Wirin — Dixie of Louisiana, Inc., 764 So.2d 37 (La. 2000). In Rabin, plaintiff allegedly fell on several boxes of toothpicks that had scattered onto an aisle of the grocery store. In his deposition, plaintiff testified that he had no knowledge of how the toothpicks got on the floor or how long they had been on the floor before he fell. See id. at 37. The Louisiana Supreme Court reasoned that plaintiff could not produce any factual evidence satisfying the temporal element of constructive notice and affirmed the trial court's order granting summary judgment. See id. at 39. The Louisiana Supreme Court noted that mere speculation by plaintiff that a grocery store employee may have been negligent in failing to notice and remove the boxes did not satisfy the constructive notice element of the claim. Id. at 40.
Here, plaintiff fails to present any evidence sufficient to raise a fact issue on the temporal element that the Louisiana Supreme Court has found to be a necessary part of establishing constructive notice. See Babin, 764 So.2d at 40 ("The statute does not allow for the inference of constructive notice absent some showing of this temporal element.") Plaintiff merely alleges that if the twine was not placed beneath the mat by a customer or employee, it was "most likely placed there either intentionally or unintentionally by the Cintas sales representative who delivers the mats every Friday.' (Pl.'s Hem. Opp'n Hot. Summ. J., at 8.) However, plaintiff fails to support, this allegation with any evidence. Indeed, John Siekkenan, a sales representative from Cintas, testified at his deposition that the mats in question were never delivered wrapped or tied in twine. (Def.'s Mem. Supp. Hot. Sum. J., Ex. 4, Siekkenan Dep. at 16.) This was confirmed by casino employees who testified that they never saw the Cintas mats delivered bound in any type of twine or string. (Def.'s Hem. Supp. Hot. Sum. J., Ex. D., MacDonald Aff. ¶ 2; ix. B, Elaine Landry Aff. ¶ 5; Ex. F, Kelly Landry Aff. ¶ 5.)
Further, like the plaintiff in Rabin, Moore in her Response to Requests for Admission, admitted that she had no knowledge of how the twine got on the floor or how long it had been on the floor before she fell. (Def.'s Hem. Supp. Hot. Summ. J., Ex. G, Moore Resp. at 1.) In addition, no casino employees reported seeing any twine or string in the vicinity of the breezeway prior to the time that plaintiff fell. (Elaine Landry Aff. ¶ 2; Kelly Landry Aff. ¶ 6.) All employees entered the casino through the front entrance and through the breezeway. (Def.'s Reply to Pl.'s Opp'n Hot. Summ. J., Ex. 3, Elaine Landry Dep. at 20.) In light of the record, the Court finds that plaintiff fails to present any evidence that the twine was on the floor for any period of time, and therefore cannot meet her burden of proving constructive notice.
Plaintiff additionally presents a theory that Lucky Jacks Casino had actual notice of the twine. She posits that a casino employee or customer swept the twine under the rug and created the dangerous condition. However, since plaintiff presents no evidence to support this speculation, her bare allegation of actual notice is insufficient to defeat summary judgment.
III. Conclusion
For the foregoing reasons, the Court grants Pelican Gaming, Inc.'s motion for summary judgment.