The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICKI LEVENDIS CIVIL ACTION
VERSUS No. 19-1557
HARRAH’S NEW ORLEANS SECTION I
MANAGEMENT COMPANY, LLC, ET AL.
ORDER & REASONS
This case arises from injuries that plaintiff Nicki Levendis (“Levendis”)
sustained from a fall at Harrah’s New Orleans Casino on January 21, 2018. Before
the Court is defendant Jazz Casino Co., LLC’s (“Jazz Casino”) motion1 for summary
judgment, which argues that Levendis will be unable to prove the essential elements
of her claim under the Louisiana Merchant Liability Act (“LMLA”), La. Stat. Ann. §
9:2800.6. For the following reasons, the motion is granted.
I.
Following a few hours of poker at Harrah’s New Orleans Casino on January
21, 2018, Levendis left the poker tables to go to dinner. As she walked past the
Masquerade Lounge, Levendis slipped and fell, injuring her arm and face.2 After
individuals came to her aid and helped her up into a chair, Levendis spotted a slice
of lemon and a small puddle of clear liquid3 on the floor in the area where she fell.4
1 R. Doc. No. 47.
2 R. Doc. No. 52, at 1–2.
3 The parties agree that there was liquid on the floor in the area where Levendis fell,
although they refer to the substance interchangeably as “clear liquid” and “water.”
For consistency, the Court will refer to the liquid as water.
4 See R. Doc. No. 52-4, at 8 ¶¶ 3–7; 9 ¶¶ 1–14.
She did not see them when she was walking.5 Although Levendis admits that she has
no personal knowledge as to how the lemon and water came to be on the floor or how
long they were there before she fell,6 Levendis claims that the lemon slice and water
were the cause of her fall and that Jazz Casino failed to exercise reasonable care to
keep its floors clear of these allegedly harmful substances.
II.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
that there is no genuine issue of material fact. See Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need
not produce evidence negating the existence of material fact, but need only point out
the absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co.,
780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by
5 R. Doc. No. 52-4, at 10 ¶¶ 10–15.
6 Id. at 10 ¶¶ 16–22.
creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a
genuine issue of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a
genuine issue. Id. The nonmoving party’s evidence, however, “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id. at 255;
see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
III.
Jazz Casino moves for summary judgment, asserting that Levendis will be
unable to meet her burden of proof under the LMLA. Specifically, Jazz Casino argues
that Levendis cannot identify the cause of her fall, demonstrate that Jazz Casino
either created the condition or had notice of the condition causing the fall, or prove
that Jazz Casino failed to exercise reasonable care. In response, Levendis claims that
she will be able to satisfy each element of the LMLA and establish that Jazz Casino
is liable for her injuries.
Louisiana law imposes a duty on merchants to “exercise reasonable care to
keep [their] 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.” La. R.S. 9:2800.6.
A plaintiff who seeks damages under the LMLA bears the burden of proving
that: (1) the condition on the merchant’s premises created an unreasonable risk of
harm and the risk 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; and (3) the merchant failed to exercise reasonable care. La. R.S.
9:2800.6(B). The law does not allow for burden-shifting; the defendant merchant does
not need to prove the absence of the condition prior to the incident at issue. White v.
Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97); 699 So. 2d 1081, 1084. The plaintiff’s
“failure to prove any [of the elements of the LMLA] is fatal to the [plaintiff]’s cause of
action.” Peterson v. Brookshire Grocery Company, 751 F. App’x 533, 535 (5th Cir.
2018) (per curiam) (quoting White, 699 So. 2d at 1086).
Under the second element of the LMLA, a merchant has constructive notice of
the condition if the plaintiff proves “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. 9:2800.6(C)(1). The presence of an employee of the merchant in the
area where the condition existed is insufficient to satisfy the constructive notice
requirement, “unless it is shown that the employee knew, or in the exercise of
reasonable care should have known, of the condition.” Id. Constructive notice includes
a “mandatory temporal element,” which requires “positive evidence that the damage-
causing condition existed for some period of time, and that such time was sufficient
to place the merchant defendant on notice of its existence.” White, 699 So. 2d at 1081.
Evidence of the temporal element may be both circumstantial and direct. Williams v.
Home Depot USA, Inc., 341 F. App’x 976, 978 (5th Cir. 2009) (per curiam) (citing
Bagley v. Albertsons, Inc., 492 F.3d 328, 331 (5th Cir. 2007)). There is no “bright line
time period” to satisfy the temporal element; “whether the period of time is
sufficiently lengthy that a merchant should have discovered the condition is
necessarily a fact question.” White, 699 So. 2d at 1084. However, “there remains the
prerequisite showing of some time period” of the condition’s existence before the harm
occurred. Id.
IV.
Levendis has failed to provide evidence necessary to overcome summary
judgment in that she has not demonstrated that there is a genuine issue of material
fact with respect to whether Jazz Casino had actual or constructive notice of the
condition that caused her fall. The lack of actual notice is not in dispute; Levendis
does not allege that any employee of Jazz Casino had notice of the lemon and water
on the floor before she fell. With respect to constructive notice, Levendis
acknowledged in her deposition that she has “no idea” how the lemon slice and water
came to be on the floor or the length of time that either substance had been there.7
Merely showing “that the condition existed without an additional showing that the
condition existed for some time before the fall” does not satisfy the burden of proof for
constructive notice. White, 699 So. 2d at 1084.
Significantly, Levendis has not provided sufficient evidence as to the length of
time that the lemon and the water were on the floor before she fell or proof that they
7 Id. at 10 ¶¶ 16–23.
caused her to fall. Levendis “assumes” that the lemon and water were the culprit of
her slip on the floor because “it [sic] was no other reason to make me fall.”8 As
Levendis admitted in her deposition:9
Q: You remember something slippery causing you to fall?
A: I don’t remember anything. I remember myself on the floor.
…
Q: So you’re assuming you slipped to go down is that what you’re saying?
A: You might say that.
Q: Well, I’m asking you if that’s what you’re saying.
A: I’m – yes.
Q: Are you assuming that?
A: Yes.
Despite her causal assumption, Levendis has presented no evidence that she
actually stepped on the lemon or in the puddle of water.10 Moreover, other evidence
weighs against her claims. According to the deposition of Jazz Casino employee
Kirtrell Renfro (“Renfro”), who arrived at the scene a few minutes after Levendis fell,
8 Id. at 11 ¶¶ 17–25.
9 R. Doc. No. 47-4, at 14 ¶¶ 6–19.
10 The Court has reviewed the video footage of Levendis’s slip and fall, as well as
photos of the footwear that Levendis wore that day. The lemon slice and water are
not clearly visible in the video. See R. Doc. Nos. 47-7 & 65-2.
the lemon slice was “intact,” and it did not appear to be “crushed.”11 In addition, the
water on the floor did not appear to her to be “smeared.”12
“[C]ourts will not infer constructive notice for the purposes of summary
judgment where the plaintiff’s allegations are ‘no more likely than any other potential
scenario.’” Bagley, 492 F.3d at 328. Without evidentiary support for her claims,
Levendis’s speculative and conclusory allegations do not constitute a “positive
showing” under the LMLA.13 See Ammon v. Dillard’s Dept. Store No. 768, No. 13-CV-
764, 2015 WL 3860367, at *4 (M.D. La. June 22, 2015); White, 699 So. 2d at 1084.
11 R. Doc. No. 47-5, at 7 ¶¶ 7–12. Levendis argues that the “Executive Brief” in
Renfro’s Incident Report “confirms” that Levendis slipped and fell on the lemon and
water, see R. Doc. No. 52, at 3, but this section of the report begins with the
categorization of an “Alleged Patron Injury,” and the “Narrative” section of the report
simply relays Levendis’s description of the event as conveyed to Renfro. See R. Doc.
No. 52-8, at 8–9.
12 R. Doc. No. 47-5, at 8 ¶¶ 1–4.
13 Although Levendis assumed that she stepped on the lemon slice and water, a claim
that is relevant to the causation aspect of constructive notice, “‘mere speculation or
suggestion’ is not sufficient” to meet her burden of proof under the LMLA. Bagley,
492 F.3d at 328 (quoting Allen v. Wal–Mart Stores, Inc., 37,352 (La.App. 2 Cir.
6/25/03); 850 So. 2d 895, 898–99).
To prove constructive notice under the LMLA, courts have required specific evidence
of the existence of a hazard prior to a slip and fall. See Pollett v. Sears Roebuck, 46 F.
App’x 226, 226 (5th Cir. 2002) (affirming that plaintiff failed to prove constructive
notice in the absence of evidence that allegedly hazardous puddle and mat “existed
for some time prior to her fall”); Kennedy v. Wal-Mart Stores, Inc., 98-1939 (La.
4/13/99); 733 So. 2d 1188, 1191 (holding that plaintiff failed to demonstrate
constructive notice because plaintiff provided “absolutely no evidence as to the length
of time the puddle was on the floor before his accident”); Brown v. Jazz Casino Co.,
LLC, 2018-0913 (La. App. 4 Cir. 5/1/19), 2019 WL 1938775, at *8–9 (finding
appellant’s “self-serving testimony in his deposition and a hearsay statement of a
janitor,” without additional evidence as to the cause of fall and length of time that
the alleged condition existed, to be insufficient to prove constructive notice).
Levendis has also failed to demonstrate that the time period of the condition’s
existence was “sufficiently lengthy” for Jazz Casino to have constructive notice. See
White, 699 So. 2d at 1084. Levendis argues that a couple who walked in front of her
“may have spilled a drink shortly before” she slipped, and that “[t]his fact alone”
proves the temporal element.14 The video of the incident shows the couple walking
ahead of Levendis less than thirty seconds before she fell. Even if the couple spilled
liquid onto the floor that caused Levendis to slip, the Court finds that this fleeting
period is an insufficient length of time for Jazz Casino to have exercised reasonable
care to keep the area clear of hazards.
As an alternative explanation for the source of the water, Levendis alleges that
a man who walked in front of the couple, “a minute at most” before them, possibly
spilled his drink on the floor.15 This man was observed on video by Renfro on the day
14 R. Doc. No. 52, at 14. Levendis also argues that, according to Lewis v. Jazz Casino
Co., LLC, 2017-0935 (La.App. 4 Cir. 4/26/18); 245 So.3d 68, a plaintiff may satisfy the
temporal element of constructive notice by demonstrating that there was a period of
“seconds” between a plaintiff’s slip and fall and witness’ observations of a foreign
substance. However, the facts of Lewis are distinguishable from this matter. The
Lewis court found that the plaintiff satisfied the temporal element because the
plaintiff presented specific evidence that she slipped on a grape on the floor: multiple
witnesses testified that they saw a “foreign substance,” “little white stuff,” or a
substance resembling “melted cheese” on the floor and on the plaintiff’s shoe. Lewis,
245 So.3d at 75. Furthermore, a witness who saw the plaintiff slip and fall told the
plaintiff that she had slipped on a “smushed grape.” Id. By contrast, no eyewitness
observed Levendis slip and fall on a lemon slice and water. Furthermore, the lemon
that Renfro observed after Levendis’s fall appeared “intact” and did not appear that
someone had stepped on it. See R. Doc. No. 47-5, at 7 ¶¶ 3–12. Renfro also observed
that the water on the floor was not smeared. See id. at 8 ¶¶ 1–4.
15 R. Doc. No. 52, at 14–15. According to her deposition, Renfro reviewed the video
footage and observed this man walking “[m]aybe like a minute at most” ahead of the
couple. See R. Doc. No. 52-10, at 7 ¶¶ 10–21.
of the accident, but footage of him was not presented to Levendis, as Jazz Casino did
not preserve it. Notwithstanding the speculative nature of Levendis’s claim as to this
possible spill, the Court finds that a time period of approximately one and a half
minutes is still not sufficient to demonstrate constructive notice. See Courington v.
Wal-Mart Louisiana LLC, No. CV 2:17-00771, 2018 WL 707521, at *4 (W.D. La. Feb.
2, 2018) (concluding that “six minutes is not sufficient” to establish constructive
notice); Moses v. Wal-Mart Stores, Inc., 2017-566 (La. App. 3 Cir. 11/29/17), 258 So.
3d 184, 187 (finding that “one minute” between existence of spill and plaintiff’s fall
did not impose constructive notice); Robinson v. Wal-Mart Stores, Inc., No. CV 15-
1783, 2016 WL 5210711, at *6 (W.D. La. Sept. 15, 2016) (concluding that video
evidence of water on floor for up to sixteen minutes was not sufficient period to impose
constructive notice); Nash v. Rouse's Enterprises, LLC, 2015-1101 (La. App. 1 Cir.
2/26/16), 191 So. 3d 599, 602 (finding that ten minutes was not sufficient time period
to establish constructive notice).
Considering the scarcity of available evidence with respect to the source of the
lemon slice and water, Levendis futilely alleges that Jazz Casino intentionally
destroyed video evidence in order to frustrate her ability to demonstrate constructive
notice.16 Specifically, Levendis points to Jazz Casino’s failure to preserve footage of
the man who walked ahead of the couple in the video that Levendis received in
discovery.
16 See R. Doc. No. 52, at 16.
To support a claim of spoliation of evidence, Levendis must establish that Jazz
Casino acted in “bad faith,” which the Fifth Circuit defines as “destruction for the
purpose of hiding adverse evidence.” Guzman v. Jones, 804 F.3d 707, 713 (5th Cir.
2015). A party’s duty to preserve evidence arises when the party has notice that the
evidence is relevant to the litigation or should have known that the evidence may be
relevant. Id. If the court finds a showing of bad faith, it may allow an adverse
inference against the spoliator that the destroyed evidence supports the non-
spoliator’s claims. King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003); see
Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998). Absent this showing, the
plaintiff is “not entitled to rely on this inference to create an issue of fact on this
claim.” King, 337 F.3d at 556.
Levendis has not provided evidence that Jazz Casino acted in bad faith with
respect to the video footage it did and did not preserve. The deposition of Paulette
Wilson (“Wilson”), the Jazz Casino surveillance agent who reviewed the full video
footage after the incident occurred, presented her reasons for retaining surveillance
video that began only twenty seconds before Levendis’s fall. According to Wilson, Jazz
Casino determines the cut-off point for video retention based on the point at which
the video “shows something happened.”17 Wilson explained that she downloaded only
twenty seconds of the video prior to Levendis’s fall because she believed that the
woman in the couple who walked ahead of Levendis spilled her drink on the floor.18
17 R. Doc. No. 61-3, at 4 ¶ 19.
18 See id. at 30 ¶¶ 9–23.
Although she did not preserve “upwards” of fifteen minutes of video before Levendis’s
fall, as suggested by Jazz Casino policy, Wilson thought it was “responsible” to start
the video at that point because, as she stated, “when I watched the video, I assumed
the patrons that were walking ahead caused the accident.”19
Jazz Casino’s policy regarding day-to-day video recordings is to maintain
footage for seven days.20 Video that is not downloaded within that time period is taped
over.21 As part of her spoliation allegation, Levendis argues that Jazz Casino’s
decision to retain video footage starting only twenty seconds before her fall was made
in bad faith and violated its duty to preserve evidence. However, Levendis did not
send her letter to preserve evidence to Jazz Casino until over two months after the
incident occurred.22 Per Jazz Casino policy, day-to-day video recordings are taped
over after seven days; therefore, any footage of the man who walked in front of the
couple would have been taped over as part of Jazz Casino’s routine operations.
Levendis did receive the footage recording her fall that Wilson downloaded, per
Levendis’s request. Based on the record, Levendis has not demonstrated that Jazz
Casino acted in bad faith with respect to evidence preservation.
19 Id. at 30, ¶¶ 18–23. Jazz Casino did preserve nearly an hour of video surveillance
of Levendis after she fell, which includes footage of employees providing her with
medical care and Emergency Medical Services professionals transporting her into an
ambulance.
20 R. Doc. No. 61-4, at 3 ¶¶ 16–22.
21 Id.
22 See R. Doc. No. 52, at 5. Levendis’s letter, sent on March 23, 2018, requested that
Jazz Casino take “immediate action to preserve ALL evidence that is or could be
related to this matter.” R. Doc. No. 52-12, at 3. Levendis has not presented any
evidence that Jazz Casino did not comply with this request in providing her with the
surveillance footage that it had retained after it received Levendis’s letter.
Furthermore, even if the video had been preserved a minute or two longer to
include this individual, Levendis would still fail to meet her burden to prove
constructive notice. The spilling of his drink as the cause of Levendis’s slip and fall is
speculative, and the proximity of time between the alleged spill and her fall is
insufficient to satisfy the temporal element.
V.
Based on a review of the evidence presented, the Court finds that Levendis has
failed to come forward with specific facts relative to her claims against the defendant.
Even when viewed in the light most favorable to Levendis, she has failed to prove
essential elements of her claim.
Accordingly,
IT IS ORDERED that the motion is GRANTED and that Levendis’s claims
are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, August 6, 2019.
UNITED STATES DASTRICT JUDGE
12