Badeaux v. Louisiana-I Gaming ( 2023 )

Case: 22-30129 Document: 00516618250 Page: 1 Date Filed: 01/20/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 20, 2023
No. 22-30129 Lyle W. Cayce
Clerk
Barry J. Badeaux,
Plaintiff—Appellant,
versus
Louisiana-I Gaming, a Louisiana partnership in
Commendam, doing business as Boomtown Belle Casino
Westbank,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2348
Before Richman, Chief Judge, and Elrod and Oldham, Circuit
Judges.
Per Curiam:*
After tripping over a sprinkler head in a grassy area of a casino parking
lot, Barry Badeaux sued the casino, Louisiana-I Gaming, for negligence under
Louisiana state law. The district court first granted summary judgment in
favor of Louisana-I Gaming and soon after denied Badeaux’s motion for
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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reconsideration. Badeaux appeals both of these district court decisions.
Given that there was no genuine dispute of material fact, and Badeaux did
not produce new evidence or establish a manifest error of law in his motion
for reconsideration, we AFFIRM.
I
Plaintiff-Appellant Barry Badeaux was a patron of Defendant-
Appellee’s Boomtown Belle Casino in New Orleans during the early morning
hours of November 30th, 2019. Around 3:00 a.m., Badeaux alleges that he
went to his vehicle in the casino’s parking lot to retrieve some sodas. His
vehicle was parked in a spot directly adjacent to a curbed and landscaped area
of the lot. On his way back from his vehicle, Badeaux alleges he sustained
injuries after tripping and falling on a sprinkler head located in the curbed and
landscaped area.
Badeaux sued Louisiana-I Gaming in state court for negligence,
seeking damages under both Louisiana’s premises liability statute, La. Civ.
Code Ann. art. 2317.1 (1996), and the Louisiana Merchant Liability Act, La.
Rev. Stat. Ann. § 9:2800.6 (1996). Louisiana-I Gaming removed the action
to federal court asserting diversity jurisdiction.
The district court granted Louisiana-I Gaming’s motion for summary
judgment, holding that Louisiana-I Gaming did not owe Badeaux any legal
duty to protect him from the sprinkler because it was an “open and obvious”
hazard that was not “unreasonably dangerous.” The district court denied
Badeaux’s motion for reconsideration because Badeaux had not
demonstrated a manifest error of law in the court’s summary judgment and
did not present new evidence that undermined the court’s order. Badeaux
timely appealed.
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II
A.
We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Petro Harvester Operating
Co. v. Keith, 954 F.3d 686, 691 (5th Cir. 2020). Summary judgment is proper
when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “No genuine
dispute of fact exists if the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” EEOC v. Simbaki, Ltd., 767
F.3d 475, 481 (5th Cir. 2014). In reviewing the record, the court views “all
the facts and evidence in the light most favorable to the non-movant.” Ortega
Garcia v. United States, 986 F.3d 513, 524 (5th Cir. 2021). However,
“unsupported allegations or affidavits setting forth ‘ultimate or conclusory
facts and conclusions of law’ are insufficient to either support or defeat a
motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d
1212, 1216 (5th Cir. 1985) (citation omitted). Here, the substantive law of
Louisiana, the forum state, applies. Petrohawk Props., L.P. v. Chesapeake La.,
L.P., 689 F.3d 380, 387 (5th Cir. 2012).
The threshold question “in any negligence action is whether the
defendant owed the plaintiff a duty, and whether a duty is owed is a question
of law.” Thibodeaux v. Home Depot USA, Inc., 816 F. App’x 988, 990 (5th
Cir. 2020) (quoting Bufkin v. Felipe’s La., LLC, 171 So. 3d 851, 855 (La.
2014). Under Louisiana law, a defendant does not have a duty to protect
against that which is “obvious and apparent,” because an “open and
obvious” hazard does not pose an unreasonable risk of harm. Broussard v.
State ex rel. Off. of State Bldgs., 113 So. 3d 175, 184 (La. 2013); see also
Thibodeaux, 816 F. App’x at 990 (“[A hazard] does not present an
unreasonable risk of harm when it is an open and obvious risk.”).
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Accordingly, we have previously held that summary judgment is warranted
“when no legal duty is owed because the condition encountered is obvious
and apparent to all and not unreasonably dangerous.” Thibodeaux, 816 F.
App’x at 990 (citation omitted).
Here, there is ample evidence that the sprinkler head was an “open
and obvious” hazard. There are multiple photographs of the scene showing
that: (1) there were working lights in the parking lot on the night of Badeaux’s
fall; (2) the sprinkler head was located in a grassy, landscaped area that was
separated from the parking lot by a raised curb; and (3) the raised curb
surrounding the sprinkler head was painted bright yellow. In addition, there
is video footage displaying Badeaux walking onto the curbed area prior to his
fall. Finally, a facilities manager at the casino swore in an affidavit that the
design and construction of the parking lot complied with every ordinance,
law, and industry standard at the time of construction. This evidence
supports the district court’s conclusion that a sprinkler head raised seven
inches above the ground, located in a landscaped area surrounded by a bright
yellow curb within a well-lit parking lot is an “open and obvious” hazard.
While Badeaux suggests that a jury must always make the crucial
determinations on whether a hazard is “open and obvious,” and whether said
hazard is otherwise “unreasonably dangerous,” the district court correctly
dismissed this argument given the prevailing case law. See, e.g., Allen v.
Lockwood, 156 So. 3d 650, 653 (La. 2015) (holding summary judgment may be
appropriate “in cases where the plaintiff is unable to produce factual support
for his or her claim that a complained-of condition or thing[] is unreasonably
dangerous”); Martin v. Boyd Racing, L.L.C., 681 F. App’x 409, 412 (5th Cir.
2017) (affirming grant of summary judgment and holding that a “court can
decide that a condition does not present an unreasonable risk of harm, as a
matter of law”). Therefore, Louisiana-I Gaming did not owe a duty to
protect Badeaux from the open and obvious sprinkler head, and Badeaux’s
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evidence failed to demonstrate a genuine issue of material fact as to whether
the sprinkler was unreasonably dangerous.
B.
We review a district court’s denial of a motion for reconsideration
under an abuse of discretion standard, unless the district court considered
new evidence and still upheld summary judgment, in which case we review
the district court’s decision de novo. Templet v. HydroChem Inc., 367 F.3d 473,
477 (5th Cir. 2004). Here, the record shows the district court considered the
new evidence Badeaux put forth, so we review the decision de novo.
A motion for reconsideration under Federal Rule of Civil Procedure
59(e) must either clearly establish a manifest error of law or fact, or must
present newly discovered evidence. In re Life Partner Holdings, Inc., 926 F.3d
103, 128 (5th Cir. 2019). Badeaux puts forth arguments concerning both a
manifest error of law and new evidence.
Badeaux suggests that the district court committed a manifest error of
law because it failed to consider and apply the legal standard articulated in
Walker v. Union Oil Mill, Inc., 369 So. 2d 1043 (La. 1979), when determining
whether Louisiana-I Gaming owed Badeaux a duty to protect him from the
dangers of the sprinkler. However, we hold the district court correctly
considered four of the six Walker factors. 1 The two factors that the court did
not consider were not relevant to the court’s analysis. 2 Moreover, Badeaux
never presented these factors to the court prior to his motion for
1
The court: (1) noted that Badeaux was walking to and from his car at 3 a.m.; (2)
examined the photographs of the scene and lighting; (3) considered the location of the
sprinkler head; and (4) noticed the mulch surrounding the sprinkler.
2
The court did not consider that the drink machine on the premises was broken
and that Badeaux was carrying drinks when he walked away from his car.
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reconsideration. It was improper for Badeaux to raise them for the first time
in a Rule 59(e) motion. See Banister v. Davis, 140 S. Ct. 1698, 1703 (2020)
(“[C]ourts will not address new arguments or evidence that the moving party
could have raised before the decision issued.”).
Badeaux proposes that the deposition testimony of Kevin Murray,
Louisiana-I Gaming’s facility manager, was “new evidence.” Murray’s
testimony concerned whether the material surrounding the sprinkler was red
or black mulch. Ultimately, Badeaux is concerned with the visibility of the
black sprinkler. This testimony is not new evidence, as it was obtained at
least one week before the district court entered its order. Regardless, we hold
that this evidence does not undermine the reasons the district court relied on
to dismiss Badeaux’s claim. Therefore, the court did not err in denying the
motion for reconsideration on these grounds. 3
* * *
For the foregoing reasons, we AFFIRM the district court’s judgment.
3
Badeaux also argues that the district court failed to consider the risk-utility test
set forth in Bufkin v. Felipe’s La., LLC, 171 So. 3d 851 (2014). This argument is meritless
because Louisiana law does not require a risk-utility analysis when the hazard is “open and
obvious.” Broussard, 113 So. 3d at 184–85. A defendant “generally does not have a duty to
protect against [such hazards].” Id. at 184.
6