The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
MARK BROWN CASE NO. 2:20-CV-01347
VERSUS JUDGE JAMES D. CAIN, JR.
P N K (LAKE CHARLES) L L C MAGISTRATE JUDGE KAY
MEMORANDUM RULING
Before the court is a Motion for Summary Judgment [doc. 12] filed by defendant
PNK (Lake Charles) LLC, d/b/a L’Auberge Casino Resort. Plaintiff Mark Brown opposes
the motion. Doc. 18.
I.
BACKGROUND
This suit arises from an accident that occurred at the L’Auberge Hotel and Casino
Resort, an establishment owned by defendant in Lake Charles, Louisiana. Plaintiff alleges
that he exited the elevator on May 19, 2020, and was walking toward a restaurant when he
slipped on the floor and landed on his hip. Doc. 1, p. 2. Plaintiff sought treatment at a local
hospital, where he was diagnosed with a hip fracture. Doc. 18, att. 4. He later filed suit in
this court, on the basis of diversity jurisdiction, raising claims under Louisiana’s Merchant
Liability Act. Doc. 1.
Defendant now moves for summary judgment, asserting that plaintiff cannot show
that an unreasonably hazard existed on the floor or that defendant had any notice thereof.
Docs. 12, 13. Plaintiff opposes the motion and maintains that video evidence and his own
deposition testimony support his claim that he slipped in some sort of slippery substance
on the floor. Doc. 18.
II.
SUMMARY JUDGMENT STANDARD
Under Rule 56(a), “[t]he court shall grant summary judgment if 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.” The moving party is initially responsible for identifying
portions of pleadings and discovery that show the lack of a genuine issue of material fact.
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). He may meet his burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.” Malacara
v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). The non-moving party is then required to go
beyond the pleadings and show that there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To this end he must submit
“significant probative evidence” in support of his claim. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249 (citations omitted).
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material
fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
III.
LAW & APPLICATION
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), a federal court sitting in
diversity jurisdiction applies the substantive law of the forum state. E.g., Cates v. Sears,
Roebuck & Co., 928 F.2d 679, 687 (5th Cir. 1991). In Louisiana, claims against merchants
based on falls on the premises are governed by the Louisiana Merchant Liability Act
(“LMLA”), Louisiana Revised Statute § 9:2800.6. To prevail, a plaintiff must prove the
following (in addition to all other elements of his claim): (1) a condition on the premises
presented an unreasonable risk of harm; (2) this harm was reasonably foreseeable; (3) the
merchant either created or had actual or constructive notice of the condition; and (4) the
merchant failed to exercise reasonable care. La. Rev. Stat. § 9:2800.6(B); White v. Wal-
Mart Stores, Inc., 699 So.2d 1081, 1084 (La. 1997).
To survive a motion for summary judgment, a plaintiff must submit ‘positive
evidence’ that a merchant created or had actual or constructive notice of the conditions that
allegedly caused a plaintiff’s damages.” Perez v. Winn-Dixie Montgomery, LLC, 2019 WL
1367526, at *2 (E.D. La. Mar. 26, 2019) (quoting Duncan v. Wal-Mart La., LLC, 863 F.3d
406, 410 (5th Cir. 2017)). To show “constructive notice” under the LMLA, the plaintiff
must prove “that the condition existed for such a period of time that it would have been
discovered if the merchant had exercised reasonable care.” La. Rev. Stat. § 9:2800.6(C)(1).
An employee’s presence near the condition “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.” Id. Accordingly, plaintiff bears “an onerous burden” in
satisfying this element. Scott v. Dillard’s, Inc., 169 So.3d 468, 472 (La. Ct. App. 5th Cir.
2015).
The surveillance video shows that plaintiff emerged from the elevator, walked down
several feet of corridor, and then slipped on the wooden floor shortly after rounding a
corner past a caution sign. In his complaint plaintiff stated that there had been a slippery,
foreign substance on the floor. Doc. 1, ¶ 6. In his deposition, however, the plaintiff testified
that his foot slipped on the floor and then hit a riser in the carpet. Doc. 18, att. 3, p. 34. He
stated that he did not observe any liquids or other obstacles but that “[i]t was just a shiny,
slick floor. Like it had just been waxed, polished. It was really, really shiny.” Id. at 35.
Defendant shows, however, that the substances used by L’Auberge to clean and wax its
floors are rated as slip-resistant. Doc. 12, att. 3, pp. 21–22. It also points to the results of
its own investigation, including a floor inspection finding that no liquids, debris, or defects
existed at that time. Id. at 10. Finally, defendant notes that surveillance footage shows other
people traversing the same area shortly after plaintiff’s fall without incident.
As defendant notes, plaintiff can only speculate as to the exact cause of his fall. But
the nearby placement of a caution sign and the video footage showing that plaintiff’s feet
flew out from underneath him create fact issues as to whether there was a hazardous
condition in that area of which L’Auberge had actual notice. Furthermore, the presence of
the sign several feet away from where plaintiff fell creates an issue of fact as to whether
the sign provided adequate warning as to any hazard. Contrary to defendant’s assertion, the
video footage neither contradicts nor dispels plaintiff's speculation as to how the accident
occurred. It also does not show, as defendant suggests, that plaintiffs fall was caused by
stubbing his toe or tripping over his other foot. Likewise, the fact that other people were
able to walk across the same area after plaintiff had already slipped on it is not dispositive—
if there was a slick spot on the floor, plaintiff may have absorbed it on his fall. Accordingly,
there are sufficient gaps in the evidence for this case to go to a jury and summary judgment
must be denied.
IV.
CONCLUSION
For the reasons stated above, the Motion for Summary Judgment [doc. 12] will be
DENIED.
THUS DONE AND SIGNED in Chambers on this 23rd day of February, 2022.
UNITED STATES DISTRICT JUDGE