Scherer v. PNK (Bossier City), Inc.
112 So. 3d 931
La. Ct. App.2013Background
- Plaintiffs Constantino and her elderly mother Scherer, overnight guests at Boomtown, cross an indoor walkway between the casino and hotel lobby where a transition between concrete and tile creates a slight bump (~½ inch).
- Scherer sat on a walker with a fold-down seat; Constantino pushed, neither having used the walker this way before; both were affected by the bump as they moved toward the hotel lobby.
- The walker’s wheels hit a metal transition strip at the floor change, causing both to jolted and fall; Scherer remained on the floor until paramedics arrived.
- Defendants moved for summary judgment; plaintiffs submitted depositions, expert opinions, accident-site photos, and two employee affidavits claiming the floor had remained unchanged since 2002 and no prior incidents.
- Expert Tumlin described an irregular concrete depression under the tile, transitioning across with the strip and asserting ADA-related concerns, but did not measure the bump precisely and could not say it caused a fall.
- The trial court granted summary judgment, focusing on lack of undisputed facts showing an unreasonable risk; the court noted no prior accidents at the location in ten years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the bump create an unreasonable risk of harm? | Constantino argues the bump and transition strip violated safety standards and ADA considerations. | Boomtown contends the bump is a minor, foreseeable transition with ordinary utility and no unreasonable danger. | No unreasonable risk; bump not inherently dangerous. |
| Under La. Rev. Stat. 9:2800.6, did plaintiffs prove all elements of negligence? | Plaintiffs contend the condition presented an unreasonable risk and was created or known to the merchant, with failure to exercise reasonable care. | Defendant argues no proven unreasonable risk, no notice, and proper maintenance; no liability shown. | Plaintiffs failed to prove elements; judgment affirmed. |
| Was summary judgment proper given the undisputed facts? | Undisputed facts show a hazardous transition requiring trial to resolve. | Record shows no genuine issue of material fact; law supports judgment as a matter of law. | Yes; summary judgment affirmed. |
Key Cases Cited
- Dowdy v. City of Monroe, 78 So.3d 791 (La.App.2d Cir.11/2/11) (summary judgment standard; undisputed facts govern legal significance)
- Reed v. Wal-Mart Stores, Inc., 708 So.2d 362 (La.1988) (risk/utility analysis in reasonable vs. unreasonable hazard)
- Entrevia v. Hood, 427 So.2d 1146 (La.1986) (social utility and risk consideration in fault analysis)
- Milton v. E & M Oil Co., 47 So.3d 1091 (La.App.2d Cir.9/22/10) (four-factor test for unreasonable risk of harm)