101 So. 3d 507
La. Ct. App.2012Background
- Barry Smith, a casino patron, fell when sitting in a swivel chair at Harrah’s New Orleans, injuring his leg.
- Smith filed a tort claim on September 14, 2010, alleging gross and wanton negligence by the casino.
- The casino moved for summary judgment, submitting only Smith’s discovery answer and later Smith’s affidavit.
- Interrogatory No. 13 purportedly admitted the chair was not defective or dangerous, challenging Smith’s claim.
- The trial court granted summary judgment, finding no duty where the chair was not dangerous, and the appellate court affirmed.
- This appeal centers on whether the swivel chair presented an unreasonable risk of harm or was defective, and the proper summary judgment standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the chair present an unreasonable risk or defect? | Smith claims the chair was dangerous/defective. | Casino contends no defect or unreasonable risk was shown. | No genuine issue; chair not shown to be dangerous or defective. |
| Can Smith create a material fact with a sole affidavit when interrogatory and evidence suggest otherwise? | Affidavit clarifies potential defect and design differences. | Affidavit inconsistent with interrogatory admission; insufficient to create fact dispute. | Affidavit fails to raise a genuine issue of material fact. |
| Was summary judgment proper under La. C.C.P. Art. 966(C)(2) burden-shift in a non-burden-at-trial context? | Movant must prove elements of claim; lack of facts shows liability. | Movant need only show absence of evidentiary support for an essential element. | Summary judgment appropriate; no evidentiary support for essential element. |
| Should the casino be treated as a merchant under La. R.S. 9:2800.6 in this context? | Casino qualifies as a merchant; plaintiff bears burden to prove unreasonable risk and foreseeability. | No additional liability beyond established elements; no unreasonable risk proven. | Court acknowledges casino as a merchant but finds no unreasonable risk proven. |
Key Cases Cited
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (summary judgment de novo review; no genuine issue of material fact)
- Duncan v. U.S.A.A. Ins. Co., 950 So.2d 544 (La. 2006) (summary judgment standards; burden on movant; role of evidence)
- King v. Parish Nat’l Bank, 885 So.2d 540 (La. 2004) (summary judgment favored to secure just, speedy determination)
- Bullock v. The Rapides Foundation, 941 So.2d 170 (La. App. 3 Cir. 2006) (Dissent cited on warning duties; no inherent dangerous condition found)
- Home Depot U.S.A., Inc. (Reed v. Home Depot USA, Inc.), 843 So.2d 588 (La. App. 2 Cir. 2003) (speculation insufficient to create genuine issue of material fact)