IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30711

Summary Calendar

ANTHONY R. LUNA, Individually and on behalf of Mikey Luna, on behalf of 

Ivory Luna, on behalf of Jordan Luna, on behalf of Grace Luna; DANA D. 

LUNA, Individually and on behalf of Mikey Luna, on behalf of Ivory Luna, on 

behalf of Jordan Luna, on behalf of Grace Luna,

Plaintiffs - Appellants

v.

P N K LAKE CHARLES, L.L.C., doing business as L’Auberge Lake Charles; 

ZURICH AMERICAN INSURANCE COMPANY,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:16-CV-1099

Before KING, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiffs–Appellants Anthony and Dana Luna—both individually and 

on behalf of their minor children—brought suit against Defendants–Appellees 

PNK Lake Charles, L.L.C., and Zurich American Insurance Company, alleging 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 6, 2018

Lyle W. Cayce

Clerk

 Case: 17-30711 Document: 00514418740 Page: 1 Date Filed: 04/06/2018
No. 17-30711

2

that PNK’s negligence led to a wheelchair defect that caused injuries to 

Anthony Luna. The defendants filed for summary judgment, which the district 

court granted. We AFFIRM.

I.

In July 2015, Anthony and Dana Luna, along with their minor children, 

were guests at a casino hotel of PNK Lake Charles, L.L.C. (“PNK”). As Anthony 

Luna’s mobility was limited by a recent knee surgery, a PNK employee 

provided him with a wheelchair, and one of his children began wheeling 

Anthony to their family’s hotel room. Anthony did not immediately notice 

anything wrong with the wheelchair when he sat down, but after his son 

started pushing, the wheelchair stopped and jammed Anthony’s heel into the 

ground. Anthony then stood up and looked at the wheelchair, finding nothing 

out of place. However, as Anthony again rode in the wheelchair, the wheelchair 

again abruptly stopped, jamming his foot into the ground. As a result of this 

second stop, the front left wheel broke in half and folded up beneath itself. 

In August 2015, Anthony and Dana Luna—both individually and on 

behalf of their minor children—filed a Petition for Damages against PNK, 

Keith Henson, and Zurich American Insurance Company (“Zurich”) in 

Louisiana state court. Henson was the PNK general manager of the premises 

where the incident occurred. Zurich is PNK’s liability insurer. The plaintiffs 

alleged that the defendants’ negligence contributed to the incident and that 

the incident further injured Anthony’s left knee and hindered his post-surgery 

recovery process. They sought damages pursuant to Louisiana Civil Code 

Articles 2315 and 2317. In July 2016, the defendants removed the suit to 

federal court based on diversity jurisdiction. The plaintiffs then filed a motion 

to remand. The district court denied their motion to remand and further 

dismissed their claims against Henson without prejudice, as Henson was a 

non-diverse party. In June 2017, the remaining defendants (i.e., PNK and 

 Case: 17-30711 Document: 00514418740 Page: 2 Date Filed: 04/06/2018
No. 17-30711

3

Zurich) filed a motion for summary judgment, which the district court granted.

The plaintiffs timely appealed. 

II.

We review a district court’s grant of summary judgment de novo. Delta 

& Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th 

Cir. 2008) (citing Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th Cir. 2002)). 

Summary judgment is appropriate if “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). Summary judgment is proper if “the nonmoving party has 

failed to make a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

“In a diversity case such as this one, we apply state substantive law.” 

Wiltz v. Bayer CropScience, Ltd. P’ship, 645 F.3d 690, 695 (5th Cir. 2011) 

(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The plaintiffs alleged 

that the defendants are liable based on a theory of custodial liability pursuant 

to Louisiana Civil Code Articles 2315, 2317, and 2317.1. To prevail on their 

custodial liability claim, the plaintiffs must prove that “(1) the object was in 

[PNK’s] custody; (2) the thing contained a vice or defect which presented an 

unreasonable risk of harm to others; (3) the defective condition caused the 

damage; and (4) [PNK] knew or should have known of the defect.” Cormier v. 

Dolgencorp, Inc., 136 F. App’x 627, 627–28 (5th Cir. 2005) (citing La. Civ. Code 

arts. 2317, 2317.1).

“[T]he question of whether a custodian or owner of a thing has 

constructive knowledge of a defect in that thing is inextricably linked with the 

exercise of reasonable care.” Dawson v. Rocktenn Servs., Inc., 674 F. App’x 335, 

340 (5th Cir. 2016) (citing Walters v. City of West Monroe, 162 So. 3d 419, 424 

(La. Ct. App. 2015)). “Louisiana courts have traditionally analyzed the exercise 

 Case: 17-30711 Document: 00514418740 Page: 3 Date Filed: 04/06/2018
No. 17-30711

4

of reasonable care as consisting of two separate components.” Id. (collecting 

cases). The owner or custodian of a thing must (1) “take reasonable steps to 

discover defects in the thing that create an unreasonable risk of harm” and 

(2) “take reasonable steps to protect against injurious consequences resulting 

from defects in the thing that create an unreasonable risk of harm.” Id.

(collecting cases). “When an owner or custodian of a thing fails to exercise 

reasonable care to discover a defect in that thing, Louisiana law imputes the 

owner or custodian with knowledge of the defect if the defect is of such a 

character or has existed for such a period of time that a reasonable custodian 

or owner would have discovered it.” Id. (citing Dufrene v. Gautreau Family, 

LLC, 980 So. 2d 68, 80 (La. Ct. App. 2008)); see Wells v. Town of Delhi, 216 So. 

3d 1095, 1099 (La. Ct. App. 2017).

The district court concluded that there was no actual or constructive 

knowledge of the wheelchair defect. On appeal, the plaintiffs argue that there 

was constructive knowledge because PNK failed to take reasonable care to 

inspect their wheelchairs and did not have any policies regarding inspections 

and maintenance of their wheelchairs. Their argument fails. Even assuming 

arguendo that the lack of inspection constituted a lack of reasonable care to

discover the defect, there is constructive knowledge only if PNK would have 

discovered the defect. Here, there is no evidence that PNK would have 

discovered the defect with an inspection. Anthony Luna inspected the 

wheelchair himself after it jammed his foot the first time and did not discover 

anything wrong with it. Cf. Dawson, 674 F. App’x at 340–41 (finding that the 

plaintiffs failed to provide evidence that the alleged clog in the pressure-release 

line that caused the accident would have been detected by a reasonable 

inspection, and noting that the injured person had checked and did not see a 

clog prior to the accident).

 Case: 17-30711 Document: 00514418740 Page: 4 Date Filed: 04/06/2018
No. 17-30711

5

The plaintiffs cite two cases to support their contention that a failure to 

inspect is sufficient to overcome summary judgment with respect to 

constructive knowledge: Walters, 162 So. 3d 419, and Crooks v. Sw. La. Hosp. 

Assoc., 97 So. 3d 671 (La. Ct. App. 2012). These cases are distinguishable. First, 

the court in Walters expressly stated that “[l]ack of inspection is [] only one 

factor by which the factfinder might determine that the defect existed for such 

a length of time that the [defendant] should have discovered the defect with 

the exercise of reasonable care.” 162 So. 3d at 424 (citing Graham v. City of 

Shreveport, 31 So. 3d 526, 530–31 (La. Ct. App. 2010)). Second, both cases 

involve evidence that an inspection would have revealed the defect. See

Walters, 162 So. 3d at 425 (finding that in addition to the lack of inspection, 

“damage to the three footings” and “rusted bolts for the footings” provided 

evidence of constructive notice); Crooks, 97 So. 3d at 678–79 (finding that the 

defendant should have known of the defect in the sofa bed because the missing 

springs would have been visible in an inspection). Unlike the situation in 

Walters and Crooks, here, there were no obvious signs of a wheelchair defect. 

The district court also concluded that the plaintiffs’ claims do not 

survive under the doctrine of res ipsa loquitur. “Res ipsa loquitur is a rule of 

circumstantial evidence which allows [the] court to infer negligence on the part 

of [PNK] if the facts indicate [PNK’s] negligence, more probably than not, 

caused the injury.” Salvant v. State, 935 So. 2d 646, 659 (La. 2006) (collecting 

cases). “Application of the doctrine is defeated if an inference that the accident 

was due to a cause other than [PNK’s] negligence could be drawn as reasonably 

as one that it was due to [its] negligence.” Id. (quoting Montgomery v. 

Opelousas Gen. Hosp., 540 So. 2d 312, 320 (La. 1989)). This doctrine does not 

relieve the plaintiffs from proving all of the elements necessary for recovery

but simply allows them to meet the burden of proof by using circumstantial 

evidence. See Riggs v. Opelousas Gen. Hosp. Tr. Auth., 997 So. 2d 814, 818 (La. 

 Case: 17-30711 Document: 00514418740 Page: 5 Date Filed: 04/06/2018
No. 17-30711

6

Ct. App. 2008) (quoting Cangelosi v. Our Lady of the Lake Med. Ctr., 564 So.

2d 654, 665–66 (La. 1989)). The district court found that res ipsa loquitur could 

not be used to establish the element of actual or constructive knowledge

because the inference that the accident was caused by a hidden defect is just 

as likely as the inference that it was caused by a defect that could have been 

detected through inspection. See Salvant, 935 So. 2d at 659 (citing 

Montgomery, 540 So. 2d at 320).

On appeal, the plaintiffs contend that the district court erred with regard 

to its res ipsa loquitur ruling, and that the defect was not hidden and a lack of 

inspection triggers a presumption that PNK should have learned of the defect. 

These arguments are without merit. As explained above, Anthony Luna did 

not discover the defect after an inspection. This suggests that the defect was 

hidden, or that it is at least as likely that the defect was hidden as it was 

detectable through inspection. See Salvant, 935 So. 2d at 659 (citing 

Montgomery, 540 So. 2d at 320). Further, as explained above, the lack of 

inspection by itself is not sufficient to prove constructive notice. See Walters, 

162 So. 3d at 424.

III.

For the foregoing reasons, we AFFIRM the district court’s grant of the 

defendants’ motion for summary judgment. 

 Case: 17-30711 Document: 00514418740 Page: 6 Date Filed: 04/06/2018