Badeaux v. Louisiana-I Gaming

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BARRY J. BADEAUX CIVIL ACTION

VERSUS NO. 20-2348

LOUISIANA-I GAMING, ET AL. SECTION “R” (3)

ORDER AND REASONS

Before the Court is defendant Louisiana–I Gaming’s motion for

summary judgment.1 Plaintiff Barry Badeaux opposes the motion.2 Because

there is no genuine dispute of material fact as to defendant’s liability, the

Court grants defendant’s motion.

I. BACKGROUND

This case arises from a fall in the parking lot of Boomtown Casino New

Orleans.3 Plaintiff Barry Badeaux alleges that, around 3:00 a.m. on

November 30, 2019, while exiting his vehicle and walking toward the casino,

he tripped on a sprinkler head, and fell to the ground, sustaining injuries.4

1 R. Doc. 32.

2 R. Doc. 42.

3 R. Doc. 1-2 at 1-2.

4 Id.

Plaintiff alleges that the location and design of the exposed sprinkler head

created an unreasonably dangerous condition.5

Plaintiff sued Louisiana-I Gaming,6 and its insurer, Pinnacle National

Insurance Company, for damages stemming from his injuries in the casino

parking lot.7 Louisiana-I Gaming now moves for summary judgment on the

basis that the sprinkler head was an “open and obvious” condition, and that

plaintiff cannot establish that the sprinkler head was the cause-in-fact of his

accident.8 Plaintiff opposes the motion.9 The Court considers the parties’

arguments below.

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there

is 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); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

5 Id. at 2-3.

6 In plaintiff’s petition for damages, he represents that Louisiana-I

Gaming “owns and/or operates the Boomtown Belle Casino

Westbank.” Id. at 1.

7 R. Doc. 1 ¶ 1.

8 R. Doc. 32-2.

9 Id.

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence

which would ‘entitle it to a directed verdict if the evidence went

uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,

951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a

genuine dispute of material fact,” or by “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to

return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION

Plaintiff sued Louisiana-I Gaming for negligence under both

Louisiana’s premises liability statute, La. Civ. Code art. 2317.1, and the

Louisiana Merchant Liability Act, La. Rev. Stat. Ann. § 9:2800.6.10

Louisiana’s premises liability statute states in pertinent part:

The owner or custodian of a thing is answerable for damage

occasioned by its ruin, vice, or defect, only upon a showing that

he knew or, in the exercise of reasonable care, should have known

of the ruin, vice, or defect which caused the damage, that the

damage could have been prevented by the exercise of reasonable

care, and that he failed to exercise such reasonable care.

La. Civ. Code art. 2317.1. Under this statute, plaintiff bears the burden of

proving: (1) that the defendant knew, or in the exercise of reasonable care,

should have known of the defect which caused the damage, (2) that the

damage could have been prevented by the exercise of reasonable care, and

(3) that defendant failed to exercise reasonable care. Id.

Louisiana Revised Statute § 9:2800.6 governs the “[b]urden of proof

in claims against merchants” when a plaintiff alleges that the merchant’s

negligence caused the plaintiff to be injured on the merchant’s premises. A

casino is considered a merchant for purposes of this statute. Richardson v.

La.-I Gaming, 55 So. 3d 893, 895 (La. Ct. App. 2010). To prove a negligence

claim under this statute, the plaintiff must show that (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

10 Id.

constructive notice of the condition which caused the damage, before the

occurrence, and (3) the merchant failed to exercise reasonable care. La. Rev.

Stat. Ann. § 9.2800.6.

Under either theory of liability, a plaintiff must prove that: “(1) the

defendant either owned or had care, custody, or control of the thing in

question; (2) the thing was a cause-in-fact of the plaintiff’s injuries; and (3)

the thing presented an unreasonable risk of harm.” Llorence v. Broadmoor

Shopping Ctr., Inc., 76 So. 3d 134, 137 (La. App. 3 Cir. 2001) (quoting Bethea

v. Great Atl. & Pac. Tea Co., 22 So. 3d 1114, 1115 (La. App. 4 Cir. 2009)).

Here, defendant argues that plaintiff cannot establish a genuine issue

of material fact as to whether the sprinkler head created an unreasonable risk

of harm, because the sprinkler was “open and obvious.”11 In determining

whether a defect presents an unreasonable risk of harm, courts should

inquire whether the defect is “open and obvious to all who encounter it.”

Broussard v. State ex rel. Off. of State Bldgs., 113 So. 3d 175, 183-85 (La.

2013). And when determining whether a paving defect is “open and

obvious,” courts should specifically consider the size of the defect, its

location, and the accident history of the defect. Leonard v. Sam’s West, Inc.,

No. 11-846, 2013 WL 121761, at *3 (E.D. La. Jan. 9, 2013) (citing Reed v. Wal-

11 R. Doc. 32-2 at 8-14, 17-18.

Mart Stores, Inc., 708 So. 2d 362, 363-64 (La. 1998)). If the defect is “open

and obvious,” it is likely not unreasonably dangerous, because “the

probability of injury is low and the thing’s utility may outweigh the risks

caused by its defective condition.” Broussard, 113 So. 3d at 184; see also

Thibodeaux v. Home Depot U.S.A., Inc., 816 F. App’x 988, 990 (5th Cir.

2020) (per curiam) (“[A] condition does not present an unreasonable risk of

harm when it is an open and obvious risk.”).

“If the facts of a particular case show that the complained-of condition

should be obvious to all, the condition may not be unreasonably dangerous,

and the defendant may owe no duty to the plaintiff.” Eisenhardt v. Snook, 8

So. 3d 544, 544 (La. 2009) (per curiam). This is because, under Louisiana

law, a defendant does not have a duty to protect against “that which is

obvious and apparent.” Broussard, 113 So. 3d at 184. This is true under both

premises and merchant liability. See, e.g., Schultz v. Rouse’s Enters., L.L.C.,

No. 20-2830, 2021 WL 2533025, at *3 n.27 (E.D. La. June 21, 2021) (noting

that the “open and obvious” doctrine “applies with equal force” under both

La. Civ. Code art. 2317.1 and La. Rev. Stat. § 9:2800.6). “[I]n a trip and fall

case, the duty is not solely with the landowner,” but is shared with the

pedestrian who “has a duty to see that which should be seen[,] and is bound

to observe whether the pathway is clear.” Babino v. Jefferson Transit, 110

So. 3d 1123, 1126 (La. App. 5 Cir. 2013); Hutchinson v. Knights of Columbus,

Council No. 5747, 866 So. 2d 228, 235 (La. 2004) (“A landowner is not liable

for any injury which results from a condition which should have been

observed by the individual in the exercise of reasonable care or which was as

obvious to a visitor as it was to the landowner.”).

As an initial matter, plaintiff argues that the question of whether the

sprinkler head was an open and obvious hazard is a question of fact to be

decided by a factfinder, not by the Court on summary judgment.12 But

Louisiana case law makes clear that summary judgment may be appropriate

“in cases where the plaintiff is unable to produce factual support for his or

her claim that a complained-of condition or thing is unreasonably

dangerous.” Allen v. Lockwood, 156 So. 3d 650, 653 (La. 2015) (per curiam);

see also Leonard, 2013 WL 121761, at *3 (“[I]n the summary judgment

context, Louisiana courts have not hesitated to grant summary judgment in

favor of defendants in cases in which the nature of the condition is

undisputed, and plaintiff has provided no evidence of any unusual feature of

the condition suggesting that it is unreasonably dangerous.”). The

appropriateness of summary judgment in this case thus turns on whether

12 R. Doc. 42 at 4.

plaintiff has created an issue of material fact as to whether the sprinkler was

unreasonably dangerous.

In moving for summary judgment, defendant has produced evidence,

including plaintiff’s deposition,13 affidavits,14 photographs,15 security

surveillance video footage,16 and an incident report,17 to support its

argument that no genuine issue of material fact exists as to whether the

sprinkler head was open and obvious. Defendant also points to the lack of

reported accidents related to the sprinkler.18 In response, plaintiff relies on

his own deposition testimony,19 additional photographs,20 and the testimony

of Leonard Quick, a forensic engineer, to argue that the sprinkler was not

sufficiently open and obvious, and could therefore present an unreasonable

risk of harm.

Louisiana courts recognize that “[s]urfaces, such as curbs and

sidewalks, are often irregular.” Thibodeaux, 816 F. App’x at 991 (citing Reed,

708 So. 2d at 363). Applying this principle, courts have concluded that in

13 R. Doc. 32-4.

14 R. Doc. 32-5 (Affidavit of Harold McKenzie); R. Doc. 32-7 (Affidavit

for Jeannine Richert).

15 R. Doc. 32-8; R. Doc. 32-11.

16 R. Doc. 32-6.

17 R. Doc. 32-11.

18 R. Doc. 32-1 ¶ 20.

19 R. Doc. 42-3.

20 R. Doc. 42-2.

certain circumstances, variances in the surfaces of parking lots, such as

curbs, ledges, or potholes, do not create an unreasonable risk of harm. See,

e.g., Llorence, 76 So. 3d at 138 (affirming the trial court’s finding that a

pothole in the grocery store parking lot was not an “unreasonably harmful

condition”); Cordell v. Tanaka, No. 17-285, 2018 WL 301331, at *5 (La. App.

1 Cir. Jan. 4, 2018) (granting summary judgment for defendants because a

change in color of the ledge made it sufficiently “open and obvious”); Nugent

v. Car Town of Monroe, Inc., 206 So. 3d 369, 376-77 (La. App. 2 Cor. 2016)

(finding that a 7.5-inch elevation change in the sidewalk did not create an

unreasonable risk).

Louisiana courts also recognize that grounds adjacent to a sidewalk,

which are not intended to be used as a walkway, are not “expected to have a

completely ‘table-top’ smooth surface.” Wood v. Cambridge Mut. Fire Ins.

Co., 486 So. 2d 1129, 1133 (La. App. 2 Cir. 1986). “Yards can and usually do

have irregularities and minor obstacles such a depressions, drains, faucets,

trees, shrubs, and tree roots[,] and are not intended or designed for use as a

walkway without observation and care as are sidewalks and designated

walkways.” Id. Accordingly, courts have determined that alleged defects in

landscaped areas, not designated as walkways, are open and obvious, and

therefore do not present an unreasonable risk of harm to people exercising a

reasonable amount of care. See, e.g., Alexander v. City of Lafayette, 584 So.

2d 327, 328-29 (La. App. 3 Cir. 1991) (finding that an exposed tree root on

the ground adjacent to the sidewalk did not present an unreasonable risk of

harm); Grossie v. MGM Properties, Inc., 269 So. 3d 921, 926 (La. App. 3 Cir.

2019) (holding that wood landscaping and metal stripping adjacent to a

walkway were open and obvious); Watts v. Scottsdale Ins. Co., 43 So. 3d 266,

269-70 (La. App. 2 Cir. 2010) (affirming a trial court’s finding that a dark

brown/green metal strip that lined a shady flower bed was open and obvious

and thus not an unreasonably dangerous condition).

Here, the Court finds that plaintiff’s evidence is not sufficient to create

a genuine issue of fact as to whether the sprinkler head was unreasonably

dangerous. As shown by photographs taken the night of the accident,21 the

sprinkler head was raised seven inches above the ground and was next to a

curb painted bright yellow, making it clearly visible. And despite plaintiff’s

assertions otherwise,22 the contemporaneous photographs show that the

sprinkler head was unobstructed by any bushes in the area.23 It is also

undisputed that the area was well lit by streetlights, and plaintiff testified

21 R. Doc. 32-11 at 10-13.

22 R. Doc. 32-4 at 46:5-22 (Badeaux’s Deposition) (noting that the

pictures from the night of the accident were “not accurate . . . because

there were bushes around the sprinkler head”).

23 R. Doc. 32-11 at 10-13.

that even at 3:00 a.m. the lights were shining close enough to his vehicle that

he could see where he was walking.24 Moreover, when asked if he had seen

the sprinkler before his fall, plaintiff admitted that he had not, because he

did not “look down to see there wasn’t anything in the landscaping.”25

The Court additionally considers whether the size, location, and

accident history of the sprinkler head create an issue of material fact as to

whether the sprinkler head was open and obvious. See Leonard, 2013 WL

121761, at *3. First, the sprinkler head is approximately seven inches above

the ground.26 Plaintiff testified that the sprinkler head was that height the

night of his accident.27 Courts applying Louisiana law have held that similar

height deviations are open and obvious, and are “easily observed and

appreciated in the exercise of reasonable care.” See, e.g., Brown v. United

States, 861 F. Supp. 539, 542 (W.D. La. 1994) (“An exposed tree root,

especially one that is raised three to four inches above the ground, is an

obvious . . . and [an] easily avoidable risk.”); Nugent, 206 So. 3d at 371-72

24 R. Doc. 32-4 at 62:16-24 (Badeaux’s Deposition).

25 Id. at 61:13-25.

26 R. Doc. 32-1 ¶ 13 (Statement of Uncontested Facts); R. Doc. 42-1 ¶ 13;

see also R. Doc. 32-4 at 48:2-6 (Badeaux’s Deposition) (agreeing that

the sprinkler head protruded that far above the ground when his fall

occurred, and describing the sprinkler head’s height as being “high”

and “way up”).

27 R. Doc. 32-4 at 48:2-5 (Badeaux’s Deposition).

(holding that a slab that was 7.5 inches above the pavement was “open and

obvious”).

Second, defendant represents that prior to plaintiff’s accident, there

had never been a reported fall concerning any of the sprinkler heads in its

parking lot.28 This lack of reported accidents also supports a finding that the

sprinkler head was not unreasonably dangerous. See Williams v. Leonard

Chabert Med. Ctr., 744 So. 2d 206, 210 (La. App. 1 Cir. 1999) (“The lack of

prior accidents is an important factor to be considered in evaluating the risk

of harm.”).

Finally, the location of the sprinkler head further indicates that it is not

an unreasonably dangerous condition. It is uncontested that the sprinkler

head is located “inside the landscaping area . . . next to the curb.”29 Given

that the island-like area was made up of bushes, trees, and mulch,

surrounded by raised curbing, it was clearly not designed to be a walkway.30

However, plaintiff contends that, because his “particular parking spot sits

directly adjacent to the garden area, a patron must walk through the garden

28 R. Doc. 32-1 ¶ 20; R. Doc. 32-9 ¶ 6 (Affidavit of Ross Jordan) (“[T]o his

knowledge, in the years that Boomtown Casino New Orleans had been

in operation, there has never been any reported problems with a

pedestrian and the inground sprinkling system in the landscaping that

borders the parking area . . . .”).

29 R. Doc. 32-1 ¶ 13 (Statement of Uncontested Facts); R. Doc. 42-1 ¶ 13.

30 See R. Doc. 32-2 at 12.

area . . . with this exposed sprinkler head . . . to enter the Casino.”31 Plaintiff

supports his assertion with the report of Leonard Quick, a forensic engineer,

who similarly contends that Mr. Badeaux “was forced to step upon the

immediately adjacent curb surrounding/bordering the landscaped area, and

into and through the landscaped area, due to defective design and/or

construction of the parking lot segment and associated dimensions of the

stalls.”32

The Court finds that Mr. Quick’s report does not create a genuine issue

of material fact or otherwise demonstrate that the location of the sprinkler

made it an unreasonably dangerous condition. See Williams v. Lib. Mut.

Fire Ins. Co., 217 So. 3d 421, 426-27 (La. App. 1 Cir. 2017) (“An expert’s

opinion that is conclusory, . . . and which is based on little or no factual

support does not create a genuine issue of material fact.”). Mr. Quick

emphasizes that, based on his measurements, plaintiff had 16.45 inches to

walk between his vehicle and the curb, which he represents is “inadequate”

and “forced Mr. Badeaux to step up onto the curb and landscaped area.”33 As

an initial matter, it is unclear why this distance is “inadequate.” Mr. Quick

attaches various ordinances, but does not allege that defendant’s parking

31 R. Doc. 42 at 4.

32 R. Doc. 32-8 at 2.

33 Id. at 4.

space violated any specific ordinances, building codes, or industry standards.

See id. (finding that an expert’s report “was conclusory with little or no

factual report” where the expert “refer[ed] to many different safety codes”

but did “not say how the curb or parking lot at issue violated any of the codes”

or even if the codes were “applicable to [the] building”). Far from citing

specific violations, Mr. Quick’s report instead tries to argue that even if the

parking stall complied with industry standards and Jefferson Parish parking-

space requirements, it would still be unreasonably dangerous.34 Further,

defendant has presented evidence that its parking lot was in compliance with

all codes and regulations. The “facilities and marine manager” at Boomtown

Casino stated in an affidavit that, to his knowledge, “the design and

construction of the hotel parking lot . . . complied with every ordinance, law

and industry standard at the time of construction.”35

Additionally, Mr. Quick fails to explain why 16.45 inches between

plaintiff’s car and the curb did not provide adequate room for Mr. Badeaux

34 See id. at 2-3 (“Even if the parking lot stalls complied with industry

standards and Jefferson Parish parking space requirements

dimensionally and with required striping designations, it is not only

known but also expected that pedestrians will step up and walk

upon/across landscaped areas within and long perimeters of parking

lots.”).

35 R. Doc. 32-9 ¶ 5 (Affidavit of Ross Jordan).

to walk between his car and the curb.36 The Court finds that the photographs

attached to his report support the opposite conclusion, and show that

plaintiff had room to walk on the concrete next to his car without having to

step onto the curb, much less the landscaping.37 And even assuming that it

was too narrow for plaintiff to walk on the surface of the parking lot, the curb

on which plaintiff walked extends past the length of his car.38 Accordingly,

plaintiff did not have to walk on the curb after he cleared the back end of his

car. Plaintiff could have stepped down once he passed the back of his car,

and been completely off the curb by the time he reached the sprinkler head,

which sits at the far end of the curb. In sum, even taking plaintiff and Mr.

Quick at their word as to the narrow gap between plaintiff’s car and the curb,

this was not a constraint near the location of the sprinkler head. Therefore,

the Court finds that the location of the sprinkler head was not unreasonably

dangerous, and that Mr. Quick’s conclusory statements to the contrary do

not create a dispute of material fact.

For these reasons, considering the factors outlined by Louisiana law,

the Court finds that record evidence establishes that the sprinkler head was

open and obvious. Therefore, defendant had no duty to protect plaintiff from

36 R. Doc. 32-8 at 2-3.

37 R. Doc. 32-8 at 20 (Photograph Nos. 23 & 24).

38 See R. Doc. 32-11 at 10-13.

the sprinkler head. Because plaintiff has not met his burden to prove that

the defect was unreasonably dangerous, the Court need not address the issue

of causation. See Lester v. Valero Refining-Meraux, LLC, No. 14-80, 2015

WL 729703, at *3 n.1 (E.D. La. Feb. 19, 2015) (refusing to address the

remaining elements of custody, knowledge, and causation because the court

granted defendant’s motion for summary judgment on plaintiffs inability to

prove that the condition posed an unreasonable risk).

IV. CONCLUSION

Accordingly, the Court GRANTS defendant’s motion for summary

judgment. Plaintiff's complaint is DISMISSED.

New Orleans, Louisiana, this _18th day of November, 2021.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

17