193 So. 3d 288
La. Ct. App.2016Background
- Plaintiff Tena Foster alleged she tripped on cracked ceramic tile in Boomtown Casino’s buffet on July 22, 2013 and sued for damages.
- Foster’s incident report stated her heel got caught in a crack; she offered no expert proof and gave only general descriptions at deposition.
- Boomtown moved to re-urge summary judgment after discovery, submitting an engineer’s affidavit and report (Vanderbrook) finding spider-web cracks but no vertical offset greater than 1/16" and no holes or loose pieces posing a tripping hazard.
- Boomtown also submitted an affidavit from its risk manager stating no prior complaints about that floor area and that the tile was not repaired before the engineer’s inspection.
- The trial court denied the re-urged motion; on writ review the appellate court conducted de novo review and found Boomtown met its initial burden and Foster failed to produce evidence to satisfy her shifted burden.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cracked tile presented an unreasonable risk of harm | Foster: cracks were severe/large and could create a tripping hazard; factual issues for jury | Boomtown: engineer shows <1/16" offset, no holes/looseness, so no unreasonable risk | Held for Boomtown — no genuine issue on unreasonable risk |
| Whether Foster raised a material factual dispute precluding summary judgment | Foster: credibility disputes and condition’s dangerousness require factfinder | Boomtown: Foster offered no expert or evidence to rebut engineer; speculation insufficient | Held for Boomtown — Foster failed to meet shifted burden |
| Whether constructive or actual notice existed | Foster: crack’s appearance and age create circumstantial evidence of notice | Boomtown: risk manager affidavit shows no prior complaints and no remedial action recorded | Held for Boomtown — no evidence of notice sufficient to defeat summary judgment |
| Whether summary judgment is appropriate on whether condition is unreasonably dangerous | Foster: that is a jury question; summary judgment improper | Boomtown: case law permits summary judgment on that legal determination when evidence is undisputed | Held for Boomtown — summary judgment appropriate as a matter of law |
Key Cases Cited
- Upton v. Rouse's Enterprises, LLC, 186 So.3d 1195 (La. App. 5 Cir. 2016) (summary of summary judgment law and merchant duty in trip-and-fall cases)
- Bell v. Parry, 61 So.3d 1 (La. App. 5 Cir. 2010) (summary judgment procedure overview)
- Bufkin v. Felipe’s La., LLC, 171 So.3d 851 (La. 2014) (risk-utility test and obviousness factor in dangerous condition analysis)
- Allen v. Lockwood, 156 So.3d 650 (La. 2015) (summary judgment may decide whether a condition is unreasonably dangerous)
- White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997) (constructive notice requires evidence condition existed long enough to put merchant on notice)
- Alonzo v. Safari Car Wash, Inc., 75 So.3d 509 (La. App. 5 Cir. 2011) (plaintiff must prove all elements of La. R.S. 9:2800.6 to recover)