Opinion
NO. 23-C-236
12-27-2023
Claudette TULL v. PINNACLE ENTERTAINMENT, INC., et al.
COUNSEL FOR DEFENDANT/RELATOR, PINNACLE ENTERTAINMENT INC. AND LOUISIANA-I GAMING, A LOUISIANA PARTNERSHIP IN COMMENDAM, Kolby P. Marchand COUNSEL FOR PLAINTIFF/RESPONDENT, CLAUDETTE TULL, Mark Gerard Tauzier, Michael K. Melucci, Metairie, Jon Yeager, Hammond Anthony V. LaNasa, Jr.
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTYFOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 792-229, DIVISION "C", HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
COUNSEL FOR DEFENDANT/RELATOR, PINNACLE ENTERTAINMENT INC. AND LOUISIANA-I GAMING, A LOUISIANA PARTNERSHIP IN COMMENDAM, Kolby P. Marchand
COUNSEL FOR PLAINTIFF/RESPONDENT, CLAUDETTE TULL, Mark Gerard Tauzier, Michael K. Melucci, Metairie, Jon Yeager, Hammond Anthony V. LaNasa, Jr.
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Scott U. Schlegel
JOHNSON, J.
1Relators/Defendants, Pinnacle Entertainment, Inc. and Louisiana-I Gaming, A Louisiana Partnership in Commendam, seek review of the 24th Judicial District Court’s April 3, 2023 judgment denying Pinnacle’s motion for summary judgment. For the following reasons, we grant the writ application, reverse the district court’s judgment, render summary judgment in favor of Pinnacle Entertainment, Inc., and dismiss plaintiff Claudette Tull’s claims against Pinnacle with prejudice.
We note that Pinnacle, originally named as a defendant, filed a motion for summary judgment. The writ application, filed by Pinnacle and Louisiana-1 Gaming, does not contain the amended petition naming Louisiana-1 Gaming as a defendant, but Pinnacle and Louisiana-1 Gaming joined in filing an Objection and Reply Memorandum to Plaintiff’s Memorandum in Opposition To Motion for Summary Judgment. However, pursuant to La. C.C.P. art. 966(F), this Court can only render judgment as to the issues set forth in the motion; Louisiana-1 Gaming did not file a motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
On April 13, 2018, at approximately 10:45 p.m., Plaintiff, Claudette Tull, slipped and fell on the floor near the BMX eatery in the main hall of Boomtown Casino. Plaintiff filed a petition for damages against Pinnacle Entertainment, Inc. D/B/A Boomtown Belle Casino Westbank ("Pinnacle") on February 14, 2019, alleging her fall was caused by water or some other slippery substance on the floor. Plaintiff alleged in her petition that Pinnacle is liable for her damages under Louisiana’s Merchant Liability Law, La. R.S. 9:2800.6.
On February 24, 2021, Pinnacle filed a motion for summary judgment. Pinnacle alleged that Plaintiff could not prove that there was any substance on the floor, or, if there were a substance on the floor, how the spill occurred and how long the substance was on the floor. Pinnacle asserted that, based on the undisputed material facts, it cannot be held liable for Plaintiff’s alleged damages pursuant to La. R.S. 9:2800.6, and that Pinnacle was not a proper party in the case.
In her opposition to Pinnacle’s motion for summary judgment, filed on May 31, 2022, Plaintiff noted two genuine issues of material fact were in dispute. Plaintiff averred that she slipped in water and that the back of her legs and clothes 2were wet with water after she fell. The accident report documents Plaintiff’s statement that there was water on the floor, but Monique Jackson, the casino employee who drymopped the area after the fall, testified that the only substance she observed on the ground where Plaintiff fell was the grease from the bag of food Plaintiff was carrying. She also questioned whether Pinnacle Entertainment, Inc. adhered to the allegedly separate nature of the legal entities it now tries to shield itself with. Plaintiff attached five exhibits in support of her opposition.
Relators filed an Objection and Reply Memorandum to Plaintiff’s Memorandum in Opposition to Motion for Summary Judgment and objected to admission of Plaintiff’s Exhibits C and B. Plaintiff’s Exhibit C was an affidavit sworn to by Plaintiff’s counsel regarding documents obtained from the Jefferson Parish Clerk of Court’s Office. Relators argue that counsel’s affidavit was not based on his personal knowledge, and that he is not "competent to testify to such matters". Relators also objected to the admission of the portion of Monique Jackson’s deposition wherein she testified that she was employed by Penn National. Relators do not dispute that Penn National is "the ultimate corporate owner" of Boomtown. However, Relators contend that there was no foundation established through Ms. Jackson regarding the corporate structure of Boomtown or its accounting practices, "nor could she know, where the money from her salary actually came from," although Ms. Jackson testified that Penn National "signed her checks."
Relators also pointed out that they do not bear the burden of proof at trial, and argued that the record is devoid of proof that there was a substance on the floor and, if there was a substance on the floor, that Relators knew that the substance was present. Relators urged that Plaintiff lacks sufficient evidence to prove her case pursuant to La. R.S. 9:2800.6, there are no issues of material fact, and movers are entitled to summary judgment as a matter of law.
3A hearing on the motion for summary judgment took place on June 16, 2022, The court took the matter under advisement and rendered judgment in favor of Plaintiff on April 3, 2023. In its reasons for judgment, the district court denied Relator’s objection to Exhibit B and took judicial notice of Exhibit C - Plaintiff’s counsel’s affidavit - because the documents referred to therein were public record. The court also observed that evidence showed plaintiff may have encountered an unreasonable risk of harm and Boomtown’s knowledge of that unreasonable risk of harm are disputed and reasonable persons could view the evidence presented differently.
In their subsequent writ application, Relators aver that the district court erred when it denied the motion for summary judgment "as there were no genuine issues of material fact, the complained of events were captured on surveillance camera, and it is clear that [Plaintiff] cannot meet her burden of proof at trial."
LAW AND DISCUSSION
[1, 2] In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. A motion for summary judgment is properly granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent’s favor. Prince v. Rouse’s Enterprises, L.L.C., 20-150 (La. App. 5 Cir. 12/2/20), 305 So.3d 1078, 1081, citing Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam).
[3] 4In a motion for summary judgment, the burden of proof is on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the movers burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(D)(1). The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).
Under La. R.S. 9:2800.6, a plaintiff has the burden of proving the existence of a condition, that the condition presented an unreasonable risk of harm, that the risk of harm was reasonably foreseeable, and that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Because a plaintiff must prove each element under La. R.S. 9:2800.6, the failure to prove any element is fatal to the plaintiff’s cause of action.
Landry v. Leson Chevrolet Co., Inc., 17-665 (La. App. 5 Cir. 6/6/18), 250 So.3d 360, 366-67.
[4–6] Upon de novo review, we find that Plaintiff has failed to come forward with any competent evidence that creates a genuine issue of material fact as to whether Boomtown either created the condition Plaintiff claims caused her to fall, or had actual or constructive knowledge of that condition. When constructive notice is at issue, the claimant must come forward with positive evidence showing that the damage causing condition existed for some period of time, and that such time was sufficient to place the merchant on notice of its existence. Hazelett v. Louisiana-1 Gaming, 16-297 (La. App. 5 Cir. 12/21/16), 210 So.3d 447, 452. Although there is no bright-line time period that establishes the temporal element required under La. R.S. 9:2800, plaintiff failed to provide any positive evidence showing that the 5alleged pool of water existed for any period of time. See Williams v. Supervalu, Ina, 18-143 (La. App. 5 Cir. 11/7/18), 259 So.3d 547, 552. The surveillance video shows other patrons traversing the area in question for almost thirty minutes before Plaintiff fell, without incident. Further, from the video footage, the appearance of the floor where Plaintiff slipped and fell is indistinguishable from the rest of the walkway. Also, the condition of the floor where the accident occurred, or how the condition may have been created, is not apparent from the video footage. In opposing the motion for summary judgment, Plaintiff has not shown that she will be able to meet her burden of proof at trial. Because there are no genuine issues as to material fact, Relators are entitled to judgment as a matter of law, and summary judgment must be granted in this case.
DECREE
Based on the foregoing, the writ is granted, the judgment of the district court denying Pinnacle’s motion for summary judgment is reversed, and summary judgment is hereby rendered in favor of Pinnacle. Plaintiff’s claims against Pinnacle are hereby dismissed with prejudice.
WRIT GRANTED; JUDGMENT REVERSED; SUMMARY JUDGMENT RENDERED IN FAVOR OF PINNACLE ENTERTAINMENT, INC.