Alton Oliver v. Belle of Orleans, LLC ( 2022 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0979
ALTON OLIVER
VERSUS
BELLE OF ORLEANS, LLC
Judgment Rendered: APR 0 8 2022
On Appeal from the Sixteenth Judicial District Court
In and for the Parish of St. Mary
State of Louisiana
Docket No. 131, 616
Honorable Vincent Borne, Judge Presiding
M. Paul Skrabanek Counsel for Plaintiff/ Appellant
Houston, TX Alton Oliver
John H. Musser, V Counsel for Defendant/ Appellee
Tarryn E. Walsh Belle of Orleans, LLC
Brittney I. Esie
New Orleans, LA
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
McClendon, J.
In this personal injury case, the plaintiff appeals the trial court's judgment
that granted the defendant's motion for summary judgment and dismissed his
claim with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 25, 2017, Alton Oliver filed a petition for damages against
Belle of Orleans! L. L. C. d/ b/ a Amelia Belle Casino ( the Belle), alleging that on
February 26, 2017, he fell as he was boarding an " up" escalator at the Belle in
Amelia, Louisiana. Mr. Oliver asserted that the Belle knew or should have known
of the defective condition of its premises and failed to warn him about it. Mr.
Oliver claimed that because of the Belle' s negligence, he suffered serious injuries
to his neck, back, and head and that the Belle was liable to him for his damages.
The Belle answered the petition, generally denying Mr. Oliver's allegations.
After discovery, the Belle filed a motion for summary judgment on February
22, 2021, arguing that Mr. Oliver would not be able to meet his burden of proving
the essential elements of his claim. Specifically, the Belle contended that Mr. Oliver
was unable to show that the escalator contained a defect and that said defect
presented him with an unreasonable risk of harm. Alternatively, the Belle asserted
that Mr. Oliver could not establish the elements of a premises liability claim under
LSA- C. C. arts. 2317 and 2322 or a merchant liability claim under LSA- R. S.
11 .
Mr. Oliver opposed the motion for summary judgment. In his opposition,
Mr. Oliver referred to his deposition, wherein he mentioned that water or some
other liquid was on the escalator that created an unreasonable risk of harm.
However, the record reflects that Mr. Oliver did not offer any evidence in opposition
to the motion for summary judgment.
At the hearing on the motion for summary judgment, counsel for Mr. Oliver
conceded that Mr. Oliver was no longer arguing that there was a defect in the
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escalator, but rather that there was a slippery liquid on the steps.' After argument
by the parties, the trial court found " issues of fact as to the presence or absence
of a substance." However, the trial court also determined that there was no issue
of material fact regarding notice to the Belle of an unreasonably unsafe condition.
The trial court found that there was no evidence to show that the Belle knew or
should have known of the presence of an alleged liquid that caused Mr. Oliver' s
fall. Accordingly, the trial court orally granted the Belle's motion for summary
judgment. On April 13, 2021, the trial court signed a judgment in accordance with
its ruling, dismissing Mr. Oliver's claims against it with prejudice. Mr. Oliver
appealed.
DISCUSSION
After an opportunity for adequate discovery, 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. LSA- C. C. P. art. 966A( 3). The summary
judgment procedure is favored and is designed to secure the just, speedy, and
inexpensive determination of every action. LSA- C. C. P. art. 966A( 2).
The burden of proof is on the mover. LSA- C. C. P. art. 966D( 1).
Nevertheless, if the mover will not bear the burden of proof at trial on the issue
that is before the court on the motion, the mover' s burden does not require that
all essential elements of the adverse party' s claim, action, or defense be negated.
Rather, the mover must point out to the court that there is an absence of factual
support for one or more elements essential to the adverse party's claim, action, or
defense. Thereafter, the adverse party must 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. LSA- C. C. P. art. 966D( 1). Further, the
plaintiffs may not rest on the mere allegations in their pleadings, but their
Counsel stated: " We said it's liquid, so it wasn' t a defect in the escalator steps or anything.
There was liquid on the steps. It could have been water. It could have been soda. It could
have been alcohol, but it was liquid. That doesn' t change the fact that it was slippery."
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responses must set forth specific facts showing that there is a genuine issue for
trial.
If the plaintiffs do not so respond, summary judgment, if appropriate, shall
be rendered against them. LSA- C. C. P. art. 967B.
In determining whether summary judgment is appropriate, appellate courts
review evidence de novo under the same criteria that govern the trial court's
determination of whether summary judgment is appropriate. Jackson v. Board
of Supervisors of Louisiana State University and Agricultural and
Mechanical College, 19- 0457 ( La. App. 1 Cir. 5/ 26/ 20), 307 So. 3d 227, 230, writ
denied, 20- 00837 ( La. 10/ 14/ 20), 302 So. 3d 1117. Because it is the applicable
substantive law that determines materiality, whether a particular fact in dispute is
material can be seen only in light of the substantive law applicable to the
case. Primeaux v. Best Western Plus Houma Inn, 18- 0841 ( La. App. 1 Cir.
2/ 28/ 19), 274 So. 3d 20, 27.
In this case, Mr. Oliver originally asserted claims against the Belle under a
theory of premises liability and negligence as set forth in LSA- C. C. arts. 2317 and
2322. 2 However, Mr. Oliver now maintains that a slippery liquid on the escalator
caused him to slip and fall, rather than any defect in the escalator itself. Therefore,
LSA- R. S. 9: 2800. 6, which governs negligence claims brought against merchants
resulting from accidents caused by a condition existing on or in a merchant' s
premises, applies to Mr. Oliver' s claims.
Louisiana Revised Statutes 9: 2800. 6 provides, in relevant part:
A. A merchant owes a duty to persons who use his premises to
exercise reasonable care to keep his aisles, passageways, and floors
in a reasonably safe condition. This duty includes a reasonable effort
to keep the premises free of any hazardous conditions which
reasonably might give rise to damage.
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
2 Article 2317 provides that "[ w] e are responsible, not only for the damage occasioned by our own
act, but for that which is caused by the act of persons for whom we are answerable, or of the
things which we have in our custody." Additionally, LSA- C. C. art. 2322 provides that the owner of
a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to
repair it, or when it is the result of a vice or defect in its original construction. However, he is
answerable for damages only upon a showing that he knew or, in the exercise of reasonable care,
should have known of the vice or defect which caused the damage, that the damage could have
been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable
care.
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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.
Failure to prove any of the requirements enumerated in LSA- R. S. 9: 2800. 6
is fatal to a plaintiff's case. Willig v. Pinnacle Entertainment, Inc., 15- 1998
La. App. 1 Cir. 9/ 16/ 16), 202 So. 3d 1169, 1173. Additionally, a casino qualifies as
a merchant for purposes of this statute. 3 Id. at n. 3. See also Thomas v. Caesars
Entertainment Operating Company, Inc., 12- 1202 ( La. App. 4 Cir. 1/ 23/ 13),
106 So. 3d 1279, 1281- 82, writ denied, 13- 0546 ( La. 4/ 5/ 13), 110 So. 3d 590, and
writ denied, 13- 0462 ( La. 4/ 5/ 13), 110 So. 3d 593; Richardson v. Louisiana -1
Gaming, 10- 262 ( La. App. 5 Cir. 12/ 14/ 10), 55 So. 3d 893, 895.
In his appeal, Mr. Oliver assigns as error the trial court' s failure " to find a
fact question existed as to whether Belle knew or should have known about the
unreasonably dangerous condition - i. e. water on the escalator - on its premises."
The record shows that the Belle offered several exhibits in support of its motion
for summary judgment, including a copy of the incident report, the surveillance
video of the incident, certain discovery responses, the Belle' s maintenance contract
for the escalator, and Mr. Oliver' s medical records. Additionally, the Belle
submitted the depositions of Mr. Oliver, Mrs. Vera Oliver, and Deshanna Martin,
all taken on November 6, 2018.
3 Pursuant to LSA- R. S. 9: 2800. 6C( 2):
Merchant" means one whose business is to sell goods, foods, wares, or
merchandise at a fixed place of business. For purposes of this Section, a merchant
includes an innkeeper with respect to those areas or aspects of the premises which
are similar to those of a merchant, including but not limited to shops, restaurants,
and lobby areas of or within the hotel, motel, or inn.
E
In his deposition, Mr. Oliver testified that on the date of the incident, he
was at the Belle with his wife, Vera, and Ms. Martin, a family friend, when they
decided to eat at the buffet in the casino before leaving. The video surveillance
shows that shortly after boarding the escalator, Mr. Oliver fell backwards. The
security shift manager stated in his incident report that Mr. Oliver reported that
Mr. Oliver " lost his balance and fell on the escalator on his way up to the third
deck buffet." Mr. Oliver later gave a written statement, wherein he stated that his
f]oot got caught in the escalator and [ he] fell back" and again that he fell after
his " foot got caught in escalator." Mr. Oliver " complained of some pain in his back,
leg, neck and head," but refused medical treatment when it was offered, and he
refused any help from the casino staff. The security manager also reported that
t] here were no substances, debris or defects on the escalator that could have
caused or contributed to [ Mr.] Oliver's fall." The video indicates that the escalator
steps appear to be clean, dry, and free of any foreign substances. However, Mr.
Oliver, his wife, and Ms. Martin all testified in their depositions that a liquid was on
the escalator steps. 4
Mr. Oliver argues that his testimony, as well as the testimony of Mrs. Oliver
and Ms. Martin, that a liquid was on the escalator steps, was sufficient to establish
an unreasonably dangerous condition. To the contrary, the Belle argues that even
if, for the sake of argument, there was a liquid or some other substance on the
elevator steps, Mr. Oliver failed to show that the Belle either created or had actual
or constructive notice of the condition causing his damage as required under LSA-
R. S. 9: 2800. 6B( 2). We agree.
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. LSA- R. S. 9: 2800.6C( 1). In White v. Wal- Mart
Stores, Inc., 97- 0393 ( La. 9/ 9/ 97), 699 So. 2d 1081, 1084, the Louisiana Supreme
Court stated that although there is no bright line time period, the temporal element
4 There is no indication that this information was reported to the Belle personnel after Mr. Oliver' s
fall, and it is not in the incident report.
A
in a slip and fall claim requires a ' positive showing" by the plaintiff that the
hazardous condition existed for some time prior to the fall. A claimant who simply
shows that the condition existed without an additional showing that the condition
existed for some time before the fall has not carried the burden of proving
constructive notice as mandated by the statute. White, 699 So. 2d at 1084; Clark
v. J -H -J Inc., 13- 0432 ( La. App. 1 Cir. 11/ 1/ 13), 136 So. 3d 815, 817- 18, writ
denied, 13- 2780 ( La. 2/ 14/ 14), 132 So. 3d 964.
On our de novo review, we find that the Belle sufficiently pointed out the
absence of factual support for one or more elements essential to Mr. Oliver's claim.
See LSA- C. C. P. art. 966D( 1). The burden then shifted to Mr. Oliver to produce
factual support sufficient to establish the existence of a genuine issue of material
fact or that the Belle was not entitled to judgment as a matter of law.
Other than the deposition statements of Mr. Oliver, Mrs. Oliver, and Ms.
Martin taken more than a year and a half after Mr. Oliver's fall, the record contains
no evidence that a liquid substance was present on the escalator steps at the time
of Mr. Oliver' s fall. No liquid of any kind is visible on the escalator in the video
showing Mr. Oliver's fall, and there are no incident reports documenting any liquid
on the escalator steps. Additionally, even accepting the self-serving statements of
Mr. and Mrs. Oliver and the statement of Ms. Martin as true, Mr. Oliver failed to
present any evidence that the Belle had actual or constructive knowledge of the
alleged liquid on the escalator. Mr. Oliver, Mrs. Oliver, and Ms. Martin did not
know how the liquid came to be on the escalator, what the liquid was, or how long
the liquid was present on the escalator, before Mr. Oliver fell. Moreover, no
evidence was presented of any customer complaints regarding any liquid on the
escalator either before or after Mr. Oliver's fall, nor was any evidence presented
that the escalator required maintenance following Mr. Oliver's fall.
Accordingly, Mr. Oliver has not shown that the Belle created or had actual
or constructive notice of the allegedly hazardous condition caused by the liquid
prior to his fall. Because Mr. Oliver failed to establish factual support for all of the
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elements of his claim, there is no genuine issue of material fact, and the trial court
correctly granted summary judgment.5
CONCLUSION
For the reasons stated above, we affirm the April 13, 2021 judgment of the
trial court granting summary judgment in favor of Belle of Orleans, L. L. C. d/ b/ a
Amelia Belle Casino and dismissing Alton Oliver's claims against it with prejudice.
All costs of this appeal are assessed to Alton Oliver.
AFFIRMED.
5 Similarly, based on the Belle' s lack of actual or constructive knowledge of the allegedly hazardous
condition, we find that Mr. Oliver's claims, under any alternative theory of liability would also fail.