Hazelett v. Louisiana-1 GamingHazelett v. Louisiana-1 Gaming
11 Appellant, Mary Hazelett, appeals from the trial court’s judgment granting appellee’s, Louisiana-I Gaming, a Louisiana Partnership in Commendam, d/b/a Boomtown Casino New' Orleans’ (“Boomtown”), motion for summary judgment and dismissing Ms. Hazelett’s claims against Boomtown with prejudice.
Facts and Procedural History
On April 9, 2013, Ms. Hazelett and her sister, Sharon Lavigne, were patrons at Boomtown’s buffet restaurant.
Boomtown filed an answer and affirmative defenses. On November 4, 2015, Boomtown filed its motion for summary judgment contending that Ms. Hazelett could not prove that: (1) any alleged grease created an unreasonable risk of harm that was reasonably foreseeable to Boomtown; (2) Boomtown had actual or constructive notice of the alleged grease; and (3) Boomtown failed to exercise reasonable care in correcting or warning of said condition. Ms. Hazelett filed an opposition and amended opposition to the motion contending that there were numerous genuine issues of material fact that precluded granting Boomtown’s motion for summary judgment. On January 20, 2016, the trial court granted Boomtown’s motion for summary judgment and the judgment was signed on January 26, 2016. This appeal followed.
Discussion
In her sole assignment of error, Ms. Hazelett contends the trial court erred in granting Boomtown’s motion for summary judgment. Ms. Hazelett argues she established a prima fade cause of action under La. R.S. 9:2800.6 because she provided sufficient evidence through her own testimony, verified responses to interrogatories provided by Boomtown, and sworn affidavits
Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. C & C Energy, L.L.C. v. Cody Invs., L.L.C., 09-2160 (La. 7/6/10),
La. R.S. 9:2800.6 provides, in pertinent 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 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.
C. Definitions:
(1) “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. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
Therefore, in a slip and fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under La. R.S. 9:2800.6. Burns v. Sedgwick Claims Mgmt. Servs.,
|fiTo determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test: (1) the utility of the complained of condition, (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition, (3) the cost to prevent the harm, and (4) the nature of the plaintiffs activities in terms of social utility or whether the activities were dangerous by nature. Bufkin v.
In addition to proving that the condition presented an unreasonable risk of harm that was reasonably foreseeable, the plaintiff must also prove that the merchant either created or had actual or constructive notice of the condition which caused the damage prior to the occurrence. Upton,
Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Sears v. Home Depot, USA, Inc.,
Our de novo review of the record reveals that Ms. Hazelett offered no factual support for her contention that the alleged grease, from an unspecified location, created an unreasonable risk of harm, and that the condition was reasonably foreseeable to Boomtown. Additionally, she failed to provide any positive evidence showing Boomtown had actual notice of the alleged grease, or ^alternatively, constructive notice of the alleged grease. Nor did she offer any evidence that the condition existed for such a “period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6C(1).
Unreasonable risk of harm
In her affidavit, the buffet’s hostess, Antoinette Ellis, stated she saw Ms. Hazelett get up from the floor, leave Boomtown’s property, and return a few minutes later at which time she spoke to Boomtown’s staff about the incident and her complaints of pain. Ms. Ellis stated she could not see any substance on the floor in the area where Ms. Hazelett indicated, and she did not observe anyone else slip or make a complaint of a slippery condition on the day of Ms. Hazelett’s fall. Additionally, Boomtown’s security day supervisor, Lawrence Weatherstrand, stated in his affidavit that he arrived at the scene and saw Ms. Hazelett sitting with her sister at a table across from- the buffet. Ms. Hazel-ett said she fell in front of the entrance/exit to the buffet. He offered Ms. Hazelett medical assistance and she declined, stating her daughter made her an appointment with her own physician. Mr. Weatherstrand then walked over to the area near the entrance/exit of the buffet and did not see any foreign substance, such as water, grease, or food on the floor. Mr. Weatherstrand prepared the incident report, took photographs of the area, and gave both to Jeannine Richert, Boom-town’s Risk and Safety Manager. In her affidavit, Ms. Richeit stated that the incident report, witness statement, and other investigation related to Ms. Hazelett’s fall did not reveal the presence of food, grease, or other foreign substance on the floor of the buffet area.
In her petition, Ms. Hazelett stated grease collected on the bottom of her shoe from underneath the booth. In her deposition, Ms. Hazelett testified she knew grease collected on her shoe because the entire buffet area was “slicky” which caused her feet to slide throughout the buffet. However, Ms. Hazelett testified that 17she did not make any complaints to
As to her contention that Boomtown’s evidence is unreliable, Ms. Hazelett argues that Ms. Ellis’s affidavit is insufficient because in an unsworn witness statement Ms. Ellis said she saw Ms. Hazelett fall and her affidavit does not state she saw Ms. Hazelett fall. However, it is not disputed by the parties that Ms. Hazelett fell. Thus, whether Ms. Ellis saw Ms. Hazelett fall or whether she only saw her on the floor is not material. Ms. Hazelett also contends that Mr. Weatherstrand’s affidavit contradicts the surveillance video of the incident. While it is not disputed that there was surveillance video and it was referred to by Ms. Hazelett’s counsel in his amended opposition and his brief to this Court, the surveillance video was never introduced into evidence in the trial court. This Court only reviews evidence that was admitted and before the trial court; thus, the |ssurveillance video, and any argument made by Ms. Hazelett regarding the video, are not considered for purposes of this appeal.
Based on the evidence, Ms. Hazelett failed to present evidence of the existence of a foreign substance, (ie., grease) on the floor underneath the booth, in the buffet area, or in front of the buffet entrance/exit area by the main hallway. Boomtown established an absence of an essential element, ie., that Ms. Hazelett cannot show the alleged grease presented an unreasonable risk of harm and that the condition was reasonably foreseeable by Boomtown.
Actual or constructive notice
Even assuming that there was grease on the floor or underneath the booth that created an unreasonable risk of harm, Boomtown established that Ms. Ha-zelett failed to offer any positive evidence showing that Boomtown had actual notice of the alleged grease, or alternatively, constructive notice of the alleged grease and that the condition existed for such a “period of time that it would have been discovered if the merchant had exercised reasonable care.”
Ms. Hazelett argues the condition in question is the combination of greasy, Slippery buffet floors coupled with a carpeted floor to a smooth polished floor transition where patrons are supposed to walk upon exiting the buffet. She contends that the tracking of slippery grease from a slippery floor area to the smooth polished floor area is reasonably foreseeable, especially considering that the floor around the buffet area was slippery. Furthermore, Boom-town placed caution cones around the buf
Boomtown presented evidence through Ms. Richert’s affidavit that a yellow warning sign was placed on the floor at the buffet line to provide notice to customers of the potential for spilled food and drink items. Boomtown pointed out that there was no evidence, aside from Ms. Hazelett’s self-serving testimony, that the entire buffet floor was “slicky,” and that the tiled floor around the buffet line was slippery. Ms. Hazelett could not identify any spills, food, drink, or foreign substance on any particular area of the floor nor could she state how long the foreign substance had been in any area, despite the placement of a caution cone in the buffet line.
The record is void of any evidence presented by Ms. Hazelett that Boomtown had actual or constructive notice of the alleged grease, other than conclusory allegations and unsupported opinion which are not sufficient to satisfy the burden of proof that Boomtown had actual or constructive notice of the grease. See Sears, supra.
Based on the foregoing, and after a review of the record and exhibits, it is clear Boomtown provided evidence to show the absence of factual support for Ms. Hazel-ett’s claim that it had actual or constructive notice of the alleged grease prior to the occurrence. Thereafter, Ms. Hazelett failed to produce evidentiary factual support to show that she will be able to satisfy her burden. Ms. Hazelett’s allegations in this ease are nothing more than mere speculation as to the cause of the fall and notice by Boomtown. Mere speculation is not sufficient to meet the burden imposed on Ms. Hazelett pursuant to La. R.S. 9:2800.6. Frank v. Boomtown L.L.C.,
hnConcIusion
Accordingly, for the reasons set forth herein, we affirm the trial court’s judgment granting Boomtown’s motion for summary judgment.
AFFIRMED
Notes
. A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. La. C.C.P. art. 1841. This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid, final judgment. Oregan v. Cashio, 15-612 (La. App. 5 Cir. 1/27/16),
A valid judgment must be precise, definite, and certain. Blanke v. Duffy,
A trial court may, at its discretion and on its own motion, change the result of any interlocutory rulings it finds to be erroneous, prior to a final judgment. Vasalle v. Wal-Mart Stores, Inc., 01-0462 (La. 11/28/01),
. According to the exhibits, the buffet restaurant is referred to as Bayou Market Express or Bayou Market Buffet.
. Only one sworn, signed affidavit by Ms. Lavigne was before the trial court. The other affidavit by Eather Reynolds was not signed nor admitted into evidence and is not considered by this Court.