The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIRK CORMIER CIVIL ACTION
v. NO. 18-11701
MARRIOTT INTERNATIONAL, et al. SECTION “F”
ORDER AND REASONS
Before the Court is Marriott International and the Ritz-
Carlton Hotel Company’s motion for summary judgment. For the
reasons that follow, the motion is GRANTED, in part, as to all
claims against Marriott International, and DENIED, in part, as to
all claims against the Ritz-Carlton Hotel Company.
Background
A hotel guest slipped and fell in the bathroom of his hotel
room. This lawsuit followed.
Kirk Cormier’s first visit to New Orleans did not go as
planned. But it began well enough. Cormier arrived at the Ritz-
Carlton Hotel of New Orleans on the afternoon of October 4, 2017.
He checked in, took a walk, and bought dinner. He ate in his room,
brushed his teeth, and then went to bed. An unremarkable evening.
Other than some damp carpeting, he noticed nothing unusual——no
leaks or other issues warranting a call to maintenance.
The next morning, Cormier went into the bathroom to shower
and shave. He pulled the plunger on the sink (so water could
collect in the sink bowl), turned the water on, and began to shave.
Before he finished shaving, he turned on the shower. He resumed
shaving and, when he finished, depressed the plunger on the sink
so that the sink bowl could drain. He then stepped into the shower.
About fifteen minutes later, he finished showering, dried off, and
stepped out of the shower and onto a bath mat. He took one or two
steps off of the mat, slipped, and fell on his back. He lay there
for several minutes, allegedly in great pain.
Eventually, Cormier dragged himself into the bedroom. As he
did so, he noticed water “all around” him. He identified the source
as the “gooseneck” pipe beneath the bathroom sink. Now outside the
bathroom, Cormier crawled towards the room’s phone, hoping to
summon help. But the phone did not work. So, he tugged at his
bedsheets, causing his cellphone to fall to the floor, within his
reach. He called a colleague staying at the hotel, and the
colleague called the front desk and reported Cormier’s condition.
Emergency medical technicians arrived a few minutes later.
Cormier declined a trip to the hospital; he instead rested on the
bed in his hotel room, hoping the pain would subside. As he rested,
two hotel maintenance technicians arrived to inspect the bathroom.
Cormier told them to fill the sink bowl with water and then “see
if it leaks.” Although Cormier did not see the technicians test
the leak, he heard them say, “Oh, yeah. Big leak.”
The room’s maintenance history report reflects that this
incident generated the first and only complaint of a leak in the
bathroom’s under-sink pipes. Indeed, a member of the Ritz-
Carlton’s cleaning and repair crew inspected the room on September
7, 2017, about a month before Cormier’s alleged fall. She says she
noticed no leak after “inspect[ing] the faucet, wash basin[,] and
draining capability of the sink in the bathroom . . . including
fully filling the basin with water and unplugging the drain[.]”
She insists she would have notified the Ritz-Carlton’s engineering
department of any leak she discovered.
Cormier sued the Ritz-Carlton and Marriott International for
negligence under Civil Code Article 2315. He says they knew or
should reasonably have known about the leak in the pipes beneath
the sink, which created an unreasonably dangerous condition
causing his fall.
Now, the Ritz-Carlton and Marriott International move for
summary judgment. They contend that Cormier’s negligence claims
fail because he cannot prove that they knew or reasonably should
have known that the under-sink pipes leaked. Marriott
International contends, separately, that it cannot have liability
for Cormier’s alleged injuries because it did not own, operate, or
manage the Ritz-Carlton. Cormier opposes.
I.
Summary judgment is proper if the record discloses no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if it “might
affect the outcome of the suit.” Id. at 248.
If the non-movant will bear the burden of proof at trial,
“the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” In re La. Crawfish Producers, 852 F.3d 456, 462
(5th Cir. 2017) (citation omitted).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See Anderson, 477 U.S. at 248. Nor do “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation[.]”
Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003).
Ultimately, to avoid summary judgment, the non-movant “must go
beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial.” LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
In deciding whether a fact issue exists, the Court views the
facts and draws all reasonable inferences in the light most
favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of
Franklin, 886 F.3d 507, 513 (5th Cir. 2018). The Court “resolve[s]
factual controversies in favor of the nonmoving party,” but “only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts.” Antoine v. First
Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (citation
omitted).
II.
The Ritz-Carlton contends that Cormier’s negligence claims
fail because he cannot prove that the company knew or should
reasonably have known of the leak in the pipes beneath the bathroom
sink.
A.
The source of negligence liability in Louisiana is Civil Code
Article 2315, which instructs that “[e]very act whatever of man
that causes damage to another obliges him by whose fault it
happened to repair it.” LA. CIV. CODE art. 2315. Courts use a duty-
risk approach to decide whether to impose negligence liability.
Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7 (La.
3/10/06); 923 So. 2d 627, 632. To recover under that approach, the
plaintiff must prove five elements: (1) the defendants had a duty
to conform their conduct to a specific standard; (2) the
defendants’ conduct failed to conform to the appropriate standard;
(3) the defendants’ substandard conduct was cause in fact of the
plaintiff’s injuries; (4) the defendants’ substandard conduct was
a legal cause of the plaintiff’s injuries; and (5) actual damages.
Audler v. CBC Innovis, Inc., 519 F.3d 239, 249 (5th Cir. 2008)
(citing Lemann, 923 So. 2d at 633).
A more specific Civil Code provision applies in premises
liability cases. See LA. CIV. CODE art. 2317.1. Civil Code Article
2317.1 makes an “owner” or “custodian” of a “thing” liable for
damages caused by a “ruin, vice, or defect” in the “thing.” See
Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 616 (5th Cir.
2018) (citing Bufkin v. Felipe’s La., LLC, 2014-0288 (La.
10/15/14); 171 So. 3d 851, 855). To recover under Civil Code
Article 2317.1, the plaintiff must prove “(1) that the thing was
in the defendant’s custody, (2) that the thing contained a defect
[that] presented an unreasonable risk of harm to others, (3) that
this defective condition caused damage[,] and (4) that the
defendant knew or should have known of the defect.” Renwick, 901
F.3d at 616 (citation omitted).
The 1996 amendments to Civil Code Article 2317.1
“‘effectively eliminated strict liability . . . turning it into a
negligence claim.’” Id. (quoting Brumaster v. Plaquemines Parish
Gov’t, 2007-2432 (La. 5/21/08); 982 So. 2d 795, 799 n.1). So,
“there is [now] essentially no difference” between Civil Code
Article 2315 and 21317.1 claims. Bd. Of Comm’rs of Se. La. Flood
Pr. Auth.-E v. Tenn. Gas Pipeline Co., 850 F.3d 714, 729 (5th Cir.
2017).
B.
The Ritz-Carlton contends that Cormier cannot show that it
knew or should reasonably have known of the leak. It invokes two
affidavits——one by a repairperson, another by the Ritz-Carlton
Hotel of New Orleans’ Director of Engineering——establishing: that
no leak was discovered during a September 7, 2017 inspection of
the sink; and that until Cormier’s October 5, 2017 fall, no guest
or member of hotel staff had reported a leak in the sink.
Cormier counters that, as an “innkeeper,” the Ritz-Carlton
Hotel owed him a heightened duty of care. Whether it breached that
heightened duty, Cormier continues, is a jury question. The Court
agrees.
An “innkeeper” owes a hotel guest “a high degree of care and
protection.” Kraaz v. La Quinta Motor Inns, Inc., 410 So. 2d 1048,
1053 (La. 1982). This is a “greater than ordinary standard of
care[.]” Gregor v. Constitution State Ins. Co., 534 So. 2d 1340,
1343 (La. Ct. App. 1988). Because the Ritz-Carlton is an
“innkeeper,” it owed Cormier a “high degree of care and
protection.” Kraaz, 410 So. 2d at 1053; see also Phetteplace v.
415 Rue Dauphine, LLC, 383 F. Supp. 3d 629, 633 (E.D. La. 2019).
The Ritz-Carlton does not acknowledge the “heightened” duty
it owes its guests. It focuses on the ordinary care standard and
insists that it met it. As purported proof, it points to a
September 7, 2017 inspection——completed almost one full month
before Cormier’s alleged fall. It offers no support for the
proposition that a monthly maintenance inspection meets the “high
degree of care and protection” standard. Kraaz, 410 So. 2d at 1053.
And the Court has found none. Based on the parties’ submissions,
then, it is unclear whether the Ritz-Carlton, exercising a “high
degree of care and protection” for Cormier, should reasonably have
known of the leak in the pipes beneath the sink.1
The Ritz-Carlton has not met its burden of proving that there
is no genuine dispute of material fact and that it is entitled to
judgment as a matter of law. On this record, the Court cannot
determine whether the Ritz-Carlton breached its duty to provide
Cormier a “high degree of care and protection.” Kraaz, 410 So. 2d
at 1053. A jury will make the determination. See, e.g., Broussard
v. State ex rel. Office of State Bldgs., 2012-1238, p. 12 (La.
4/5/13); 113 So. 3d 175, 185.
1 Apparently there is no claim that Cormier’s injuries are
false or not related to his alleged slip and fall.
III.
Separately, Marriott International contends that it is not
liable for Cormier’s alleged injuries because it did not own,
operate, or manage the Ritz-Carlton. The Court agrees.
Marriott International’s contentions find support in the
affidavit of Abe Chaney, Director of Engineering for the Ritz-
Carlton Hotel of New Orleans. He attests that Marriott
International did not “operate” the Ritz-Carlton Hotel, “manage”
it, or otherwise “have any responsibility” for building
maintenance.
Cormier offers nothing to controvert any of these properly-
supported material facts. Besides, he has abandoned his claims
against Marriott International by failing to brief them in
opposition to summary judgment. See Blackwell v. Laque, 275 F.
App’x 363, 366 n.3 (5th Cir. 2008). The Court therefore finds that
Marriott International has met its burden of proving that there is
no genuine dispute of material fact and that it is entitled to
judgment as a matter of law.
IV.
Accordingly, IT IS ORDERED: that the motion for summary
judgment is GRANTED, in part, as to all claims against Marriott
International, and DENIED, in part, as to all claims against the
Ritz-Carlton Hotel Company.
New Orleans, Louisiana, November 6, 2019
. .
MARTIN . Cc. ELDMAN
UNITED STATES DISTRICT JUDGE
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