
    Cheniere THOMAS v. CAESARS ENTERTAINMENT OPERATING CO., INC., formerly known as Harrah’s Operating Co., Inc. d//b/a/ Harrah’s New Orleans Casino.
    No. 2012-CA-1202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2013.
    Rehearing Denied Feb. 6, 2013.
    
      William E. Mura, Jr., Warren A. For-stall, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Margaret A. LeBlanc, New Orleans, LA, for Defendant/Appellee, Jazz Casino Company, L.L.C.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Judge.

|Jn this personal injury trip and fall case, the plaintiff, Cheniere Thomas, appeals the trial court’s granting of summary judgment in favor of the defendant, Jazz Casino Company, L.L.C., d/b/a Harrah’s New Orleans Casino. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 9, 2010, Cheniere Thomas was a patron at Harrah’s New Orleans Casino. Ms. Thomas alleged that something on the floor of the casino caused her to fall and injure herself.

Thereafter, Ms. Thomas filed a lawsuit against Caesars Entertainment Operating Company, Inc. Ms. Thomas later amended her petition to name the correct defendant, Jazz Casino Company, L.L.C., d/b/a Har-rah’s New Orleans Casino. Harrah’s filed a motion for summary judgment contending that “based on the evidence plaintiff cannot carry her burden of proof required under La. R.S. 9:2800.6 nor under Civil Code Article 2817.1.” The trial court granted the defendant’s motion, holding “that La.9:2800.6 applies to the plaintiffs cause of faction, that Harrah’s Casino is a merchant under that statute and further finds that plaintiff cannot sustain her burden of proof as it relates to defendant, Jazz Casino Company, L.L.C.” It is from this judgment that Ms. Thomas now appeals.

DISCUSSION

On appeal, the plaintiff contends that the trial court should not have granted summary judgment because there are genuine issues of material fact concerning whether or not the defendant is a merchant pursuant to La. R.S. 9:2800.6 and whether or not the raveled/missing carpet and/or the “shaky, loose” floor plate constituted a ruin, vice or defect in the defendant’s premises pursuant to La. C.C. Art. 2317.1 or La. C.C. Art. 2822.

Appellate- courts review the grant or denial of summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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(B). Summary judgment may be rendered disposi-tive of a particular issue, theory of recovery, cause of action or defense in favor of one or more parties. La. C.C.P. art. 966(E); see also La. C.C.P. art. 1915(B)(1).

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A fact is material when its existence or nonexistence may be essential to the plaintiff’s cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606, 610. Simply put, a material fact “is one that would matter on the trial on the merits.” Id.

Regarding the plaintiff’s contention that the defendant does not qualify as a merchant under La. R.S. 9:2800.6, we disagree. This Court has stated that “jurisprudence has recognized that a casino is a merchant for purposes of this Act.” Smith v. The New Orleans Casino, 2012-0292, p. 11 (La.App. 4 Cir. 10/3/12), 101 So.3d 507, 514. The other Circuits have also recognized that casinos fall under the classification of merchants for the purposes of La. R.S. 9:2800.6. See Rowell v. Hollywood Casino Shreveport, 43,306 (La.App. 1 Cir. 9/24/08), 996 So.2d 476; Dubriel v. Horseshoe Entertainment, 34,885 (La.App. 2 Cir. 8/22/01), 793 So.2d 459; Neal v. Players Lake Charles, L.L.C., 2001-0244 (La.App. 3 Cir. 6/6/01), 787 So.2d 1213; Pellegrin v. Louisiana Gaming-1, 2011-1021 (La.App. 5 Cir. 4/24/12), 93 So.3d 645.

Although casinos qualify as merchants under this statute, this does not mean that the plaintiff cannot recover against the defendant. In addition to proving underlying negligence on the part of the defendant, La. R.S. 9:2800.6 places the burden of proof on the plaintiff to prove that a fall occurred on the defendant’s 14premises due to: 1) a condition which presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; 2) that defendant either created the condition or had actual or constructive notice of the condition prior to the occurrence; and 3) that the defendant failed to exercise reasonable care. However, in the instant case, the trial court opined that the plaintiff could not meet her burden of proof under La. R.S. 9:2800.6, but did not actually apply the statute to the facts of this case.

Furthermore, Section D of La. R.S. 9:2800.6 preserves a plaintiffs right to a claim pursuant to Civil Code Article 2317.1. For an article 2317.1 claim, the plaintiff need only prove that 1) there was a ruin, vice or defect in the defendant’s premises; 2) that defendant knew and/or should have known of the ruin, vice or defect and 3) plaintiffs fall could have been prevented with the reasonable care by the defendant. In the instant case, the trial court failed to address the plaintiffs claim under La. C.C. art. 2317.1. In the transcript of the hearing on the motion for summary judgment, the trial court stated: “I’m not going to address that at all.”

In the instant case, Ms. Thomas alleged that damaged carpet around an electrical outlet caused her to fall. Based on the photograph exhibits provided by the plaintiff, the damaged carpet did exist. The defendant also should have known of this condition considering that the area was regularly vacuumed and traversed by its employees. There is a question as to whether the defendant exercised reasonable care. This creates a genuine issue of material fact that should have precluded the granting of summary judgment,

| r,CONCLUSION

For the following reasons, the trial court’s granting of summary judgment is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

LOVE, J., concurs and assigns reasons.

LEDET, J., dissents with reasons.

LOVE, J.,

concurs and assigns reasons.

hi respectfully concur. I write separately to emphasize that credibility determinations are improper when ruling on a motion for summary judgment. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 16 (La.2/29/00), 755 So.2d 226, 236.

The appellee’s brief states that the trial court judge’s oral reasons make “it clear that the Judge didn’t accept the plaintiff’s speculation that somehow a minor carpet unraveling was a defect that created an unreasonable risk of harm to the plaintiff.” The plaintiff stated, in her deposition:

As I was walking, I slid to the right. When I landed on the ground, I looked to see what could I have fallen on, and I looked at the floor plate. The floor plate was off the ground. The carpet was raveled. The floor plate could have been—
The carpet could have prevented me from holding my foot in place because of the ravel. It could have prevented me from doing that, making me lose my balance.

Without making a credibility determination regarding the validity of the plaintiffs, a genuine issue of material fact exists as to the defendant’s alleged reasonable care.

LEDET, J.,

dissents with reasons.

_JjAlthough I agree with the majority’s holding that a casino qualifies as a merchant under La. R.S. 9:2800.6, I disagree with the majority’s holding that the trial court erred in granting the defendant’s (Harrah’s) motion for summary judgment. I would find that the plaintiff (Ms. Thomas) failed to establish an unreasonable risk of harm or a defect and thus affirm the trial court’s decision.

In her petition, Ms. Thomas averred that the she “tripped due to an electrical extension cord/vacuum cord,” which an employee of Harrah’s was using. In her deposition, however, Ms. Thomas testified that she did not trip on an extension or vacuum cord. Rather, she testified that she tripped on a gold floor plate, which covered an electrical outlet. She explained that the floor plate was embedded in the carpet and that it was raised off the ground. She estimated the floor plate was raised “[a] couple of millimeters” or “[mjaybe like a fingernail length” or “[mjaybe inches.”

In response to defense counsel’s question regarding how the floor plate caused or contributed to her fall, Ms. Thomas stated: “As I was walking, I slid to the right. When I landed on the ground, I looked to see what could I have fallen on, and I looked at the floor plate. The floor plate was off the ground. The carpet was raveled. The floor plate could have been — ” In response to defense counsel’s | ^questioning of whether she tripped over the carpet, Ms. Thomas testified: “[tjhe carpet could have prevented me from holding my foot in place because of the ravel. It could have prevented me from doing that, Tnaking me lose my balance.” Finally, she testified that what caused her to fall was that she “slipped off the plate” and that she noticed “the plate was a little shaky, loose, so.”

In support of its motion for summary judgment, Harrah’s presented affidavits of its Risk Manager, Michael Parr, and the casino’s Director of Facilities, Patrick Maher. They attested that the casino had no prior complaints about the elevated electrical outlet floor plates located throughout the casino. Mr. Maher attested that the practical purpose of the numerous brass floor plates located throughout the casino floor was to “cover in-floor electrical outlets or phone/data connections.” He further attested that “[tjhe brass plates are not polished; cleaning staff vacuums over them while vacuuming the floor.” He still further attested that he was “unaware of any complaints regarding the elevation of brass floor plates or claims that the plates or ‘slippery.’” Mr. Parr attested as follows:

“I’ve examined the slip/fall or trip/fall complaints in the casino since 2006 to determine if any other patron or employee complained of slippery and/or elevated electrical outlet floor plates located throughout the casino floor. I found no complaints or reports regarding the condition of the floor plates (gold in color).”

Based on these affidavits, Harrah’s established its lack of notice that the floor plate presented an unreasonable risk of harm or a defect.

The only support Ms. Thomas offered in opposition to the Harrah’s motion was her own deposition testimony, summarized above, and color photographs of the floor plate and the raveled carpet. As Harrah’s emphasizes, Ms. Thomas failed to retain an expert to establish the plate, the carpet, or the combination of the two presented a defect.

Concluding that Ms. Thomas established the existence of a genuine issue of material fact, the majority reasons as follows:

|sMs. Thomas alleged that damaged carpet around an electrical outlet caused her to fall. Based on the photograph exhibits provided by the plaintiff, the damaged carpet did exist. The defendant also should have known of this condition considering that the area was regularly vacuumed and traversed by its employees. There is a question as to whether the defendant exercised reasonable care.

The majority’s statement that Ms. Thomas alleged the carpet caused her to fall is belied by her deposition testimony and by the allegations of the petition. In her petition, she averred that she fell on an electrical cord. As the trial court pointed out, despite her contrary deposition testimony, Ms. Thomas failed to amend her petition.

In her deposition, Ms. Thomas did not testify that the carpet caused her to fall; rather, she testified that she “slipped off the plate.” The photographs Ms. Thomas presented give rise, at best, to an inference that the carpet around the plate was damaged. Moreover, Ms. Thomas’s testimony that “[t]he carpet could have prevented [her] ... from holding [her] ... foot in place because of the ravel” is speculative. Her argument in her brief to this court that “[t]his ‘raveled’ or ‘missing1 carpet caused a gap to the side of the plate of about an ‘inch’ due to the missing carpet and padding” is simply an allegation. “Such allegations [that the raveled or missing carpet caused an inch gap], inferences [that the photographs establish “damaged carpet”], and speculations [that the raveled or missing carpet could have prevented her fall] are not sufficient to create a genuine issue of material fact even if contained in an affidavit.” Smith v. Casino New Orleans Casino, 2012-0292, p. 11 (La.App. 4 Cir. 10/3/12), 101 So.3d 507, 514 (citing Sears v. Home Depot, USA, Inc., 06-0201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228 (citing King v. Phelps Dunbar, L.L.P., 01-1735, p. 16 (La.App. 4 Cir. 4/2/03), 844 So.2d 1012, 1022); Adelmann-Chester. v. Kent, 08-0770 (La.App. 4 Cir. 6/5/09), 33 So.3d 187; see also Reed v. Home Depot USA Inc., 37,000 (La.App. 2 Cir. 4/9/03), 843 So.2d 588, 591 (noting that speculation as to|4the cause of an accident does not supply the factual support required to meet the plaintiffs evidentiary burden)).

Quoting the trial court’s statement at the close of the hearing that she was “not going to address that at all,” the majority states that the trial court failed to address Ms. Thomas’ claim under La. C.C. art. 2317.1. I disagree. The quoted statement was made by the trial court during the following colloquy that occurred at the close of the hearing:

MS. LEBLANC [DEFENDANT’S COUNSEL]: So what do you want the judgment to say, that you’re finding based on 9:2800.6?
THE COURT: That there is no question of material fact. The client using that statute as applicable under the facts of this case.
MS. LEBLANC [DEFENDANT’S COUNSEL]: Will you also render a judgment obviously in the same language that even under [La. C.C. art.] 2317[.l] she can’t meet her burden?
MR. MURA [PLAINTIFF’S COUNSEL]: Then you have to say it’s not a defect in the carpet.
THE COURT: No, she doesn’t have to say that because it’s not the carpet that made your lady fall.
MR. MURA [PLAINTIFF’S COUNSEL]: She says that the carpet caused her to lose her balance.
THE COURT: I’m not going to address that at all.

Taken in context, the trial court’s statement appears to be directed to the lack of any claim by Ms. Thomas that the carpet caused her to fall, not to the trial court’s refusal to consider her La. C.C. art. 2B17.1 claim.

Regardless of the legal theory on which Ms. Thomas relies — La. R.S. 9:2800.6 or La. C.C. art. 2317.1 — she was required to provide support for her claim that there was an unreasonable risk of harm or a defect that caused her to fall. Given her failure to provide any evidentiary support for her claim, I would affirm the trial court’s judgment granting Harrah’s motion for summary judgment.  