202 So. 3d 1169
La. Ct. App.2016Background
- On Jan. 1, 2014, 73-year-old Elvera Willig tripped over the rear wheel of another patron’s four-wheeled walker in the carpeted dining area of L’Auberge Casino’s self-service restaurant and allegedly fractured her hip.
- A casino employee escorted the man with the walker to a table adjacent to a designated walkway; the man then sat on the side closest to the walkway so two rear wheels slightly protruded into the aisle.
- Surveillance video showed Willig passed the walker three times without incident and fell on her fourth pass; the walkway width was 62 inches (admitted to allow two people side-by-side).
- Willig sued the casino under the Merchant Liability Statute, La. R.S. 9:2800.6, alleging the casino negligently seated the walker user and failed to protect guests from hazards created by other patrons.
- The casino moved for summary judgment, producing deposition excerpts and the surveillance video; the trial court granted summary judgment, finding no unreasonable risk of harm.
- Willig appealed; the appellate court reviewed de novo and affirmed, holding the protruding walker wheels did not present an unreasonable risk of harm as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the walker’s protruding wheel presented an "unreasonable risk of harm" under La. R.S. 9:2800.6(1) | Willig: the walker obstruction created a dangerous condition that foreseeably caused her fall | Casino: video and measurements show ample room (62") and multiple patrons passed safely; the condition was not unreasonably dangerous | Held: No unreasonable risk. Reasonable minds must conclude the slight protrusion did not create an unreasonably dangerous condition |
| Whether genuine issues of material fact exist regarding casino notice/creation of condition | Willig: casino employee guided the man to that table and employees repeatedly passed the area, suggesting notice/creation | Casino: video shows employee left before man chose seat; no evidence casino created or had notice of dangerous condition | Held: No genuine issue of material fact; plaintiff failed to produce evidence to satisfy notice/creation element after burden shifted |
Key Cases Cited
- Lasyone v. Kansas City Southern Railroad, 786 So.2d 682 (La. 2001) (defines "unreasonable risk of harm" and prudent-person standard)
- Temple v. Morgan, 196 So.3d 71 (La. App. 1 Cir. 2016) (summary judgment review and risk-utility balancing applied)
- Smith v. Our Lady of the Lake Hospital, Inc., 639 So.2d 730 (La. 1994) (summary judgment appropriate when only conclusion remains)
- Broussard v. State ex rel. Office of State Buildings, 113 So.3d 175 (La. 2013) (risk-utility factors for unreasonable risk analysis)
- Moore v. Murphy Oil USA, Inc., 186 So.3d 135 (La. App. 1 Cir. 2015) (failure to prove any statutory element is fatal under merchant liability statute)
- Allen v. Lockwood, 156 So.3d 650 (La. 2015) (summary judgment allowed when plaintiff lacks factual support that condition was unreasonably dangerous)
- Frank v. Boomtown L.L.C., 106 So.3d 227 (La. App. 5 Cir. 2012) (recognizing casinos as "merchants" under La. R.S. 9:2800.6)
- Smith v. Casino New Orleans, 101 So.3d 507 (La. App. 4 Cir. 2012) (same)