STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2021 CA 0979
ALTON OLIVER VERSUS BELLE OF ORLEANS, LLC

Judgment Rendered: 

### APR 0 8 2022

On Appeal from the Sixteenth Judicial District Court



### In and forthe Parish of St. Mary

State of Louisiana Docket No. 131, 616 

### Honorable Vincent Borne, Judge Presiding

M. Paul Skrabanek Houston, TX

John H. Musser, V Tarryn E. Walsh 

### Brittney I. Esie New Orleans, LA Counsel for Plaintiff/Appellant Alton Oliver
Counsel for Defendant/Appellee Belle of Orleans, LLC

BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.McClendon, J. 

### In this personal injury case, the plaintiff appeals the trial court'sjudgment 

### that granted the defendant's motion for summary judgment and dismissed his claim with prejudice. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY 

### On September 25, 2017, Alton Oliver filed a petition for damages against Belle of Orleans! L.L.C. d/ b/a Amelia Belle Casino ( the Belle), alleging that on 

### February 26, 2017, he fell as he was boarding an " up" escalator at the Belle in Amelia, Louisiana. Mr. Oliver asserted that the Belle knew or should have known of the defective condition of its premises and failed to warn him about it. Mr. Oliver claimed that because of the Belle's negligence, he suffered serious injuries to his neck, back, and head and that the Belle was liable to him for his damages. 

### The Belle answered the petition, generally denying Mr. Oliver's allegations. 

### Afterdiscovery, the Bellefiled a motion forsummaryjudgmenton February 22, 2021, arguing that Mr. Oliverwould not be able to meet his burden ofproving the essential elements of his claim. 

### Specifically,the Belle contended that Mr.Oliver was unable to show that the escalator contained a defect and that said defect presented him with an unreasonable risk of harm. 

### Alternatively, the Belle asserted 

### that Mr. Olivercould not establish the elements ofa premises liability claim under LSA-C.C. arts. 

### 2317 and 2322 or a merchant liability claim under LSA-R.S.
11 . 

### Mr. Oliver opposed the motion for summaryjudgment. In his opposition, Mr. Oliver referred to his deposition, wherein he mentioned that water or some other liquid was on the escalator that created an unreasonable risk of harm. 

### However,the record reflectsthat Mr. Oliverdid notofferany evidence in opposition to the motion for summaryjudgment. 

### Atthe hearing on the motion forsummaryjudgment, counsel for Mr. Oliver conceded that Mr. Oliver was no longer arguing that there was a defect in the

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### escalator, but ratherthattherewas a slippery liquid on the steps.' After argument



### by the parties, the trial court found "issues offact as to the presence or absence of a substance." 

### However, the trial court also determined thatthere was no issue 

## ofmaterial fact regarding notice tothe Belle ofan unreasonably unsafe condition. The trial court found that there was no evidence to show that the Belle knew or 

### should have known of the presence of an alleged liquid that caused Mr. Oliver's fall. 

### Accordingly, the trial court orally granted the Belle's motion for summary judgment. On April 13, 2021, the trial courtsigned ajudgment in accordance with 

### its ruling, 

### dismissing Mr. Oliver's claims against it with prejudice. Mr. Oliver appealed. DISCUSSION 

### After an opportunity for adequate discovery, 

### a motion for summary judgmentshall begranted ifthe motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C. P. art. 966A(3). 

### The summary 

### judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C. P. art. 966A(2). The burden of proof is on the mover. LSA-C.C.P. art. 966D( 1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require that 

### all essential elements ofthe adverse party's claim, action, ordefense be negated. Rather, the mover must point out to the court that there is an absence of factual 

### support forone or more elements essential to the adverse party's claim, action, or defense. 

### Thereafter,the adverse party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966D( 1). Further, the 

### plaintiffs may not rest on the mere allegations in their pleadings, but their

Counsel stated: "We said it's liquid, so it wasn't a defect in the escalator steps or anything. There was liquid on the steps. It could have been water. It could have been soda. It could have been alcohol, but it was liquid. That doesn't change the fact that itwas slippery."
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### responses must set forth specific facts showing that there is a genuine issue for trial. 

### Ifthe plaintiffs do not so respond, summaryjudgment, ifappropriate, shall be rendered against them. LSA-C.C.P. art. 967B. 

### In determining whethersummaryjudgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's 

### determination ofwhether summaryjudgment is appropriate. Jackson v. Board of Supervisors of Louisiana State 

### University and Agricultural and 

### Mechanical College, 19-0457 (La.App. 1 Cir. 5/26/20), 307 So.3d 227, 230, writ denied, 20-00837 ( La. 10/ 14/20), 302 So.3d 1117. Because it is the applicable 

### substantive lawthat determines materiality, whether a particular fact in dispute is 

### material can be seen only in light of the substantive law applicable to the

case. Primeaux v. Best Western Plus Houma Inn, 18-0841 ( 

### La.App. 1 Cir. 2/ 28/ 19), 274 So.3d 20, 27. 

### In this case, Mr. Oliver originally asserted claims against the Belle under a 

### theory of premises liability and negligence as set forth in LSA-C.C. arts. 2317 and 

### 2322.2 However, Mr. Oliver now maintains that a slippery liquid on the escalator caused him to slip and fall, ratherthan anydefectin the escalatoritself. Therefore, LSA-R.S. 9: 2800.6, which governs negligence claims brought against merchants 

### resulting from accidents caused by a condition existing on or in a merchant's premises, applies to Mr. Oliver's claims. Louisiana Revised Statutes 9: 2800.6 provides, in relevant part: 

### A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort 

### to keep the premises free of any hazardous conditions which reasonably might give rise to damage. B. In a negligence claim brought against a merchant by a person 

### lawfully on the merchant's premises for damages as a result of an 2 Article 2317 provides that "[w]e are responsible, not onlyfor the damage occasioned byour own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody." Additionally, LSA-C.C. art. 2322 provides that the owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglectto repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the 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. M

### injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the 

### burden of proving, in addition to all other elements of his cause of 

### action, all ofthe following: 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 constructive notice ofthe condition which caused the damage, prior to the occurrence. 

### 3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence ofa written orverbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care. 

### Failure to prove any ofthe requirements enumerated in LSA-R.S. 9:2800.6 is fatal to a plaintiff's case. 

### Willig v. Pinnacle Entertainment, Inc., 15- 1998 

### La.App. 1 Cir. 9/ 16/16), 202 So.3d 1169, 1173. 

### Additionally, a casino qualifies as a merchant for purposes ofthis statute.3 Id.at n.3. See also Thomasv. Caesars 

### Entertainment Operating Company, Inc., 12- 1202 ( 

### La.App. 4 Cir. 1/23/ 13), 106 So.3d 1279, 1281-82, writ denied, 13-0546 ( La. 4/5/ 13), 110 So.3d 590, and writ denied, 13-0462 ( La. 4/5/ 13), 110 So.3d 593; Richardson v. Louisiana -1 

### Gaming, 10-262 (La.App. 5 Cir. 12/ 14/10), 55 So.3d 893, 895. In his appeal, Mr. Oliver assigns as error the trial court's failure "to find a fact question existed as to whether Belle knew or should have known about the 

### unreasonably dangerous condition - i. e. water on the escalator - on its premises." The record shows that the Belle offered several exhibits in support of its motion 

### for summary judgment, including a copy of the incident report, the surveillance videoofthe incident,certain discovery responses, the Belle's maintenance contract for the escalator, and Mr. Oliver's medical records. Additionally, the Belle submitted the depositions of Mr. Oliver, Mrs. Vera Oliver, and Deshanna Martin, all taken on November 6, 2018.

3 Pursuant to LSA-R.S. 9: 2800.6C(2):

Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes ofthis Section, a merchant includes an innkeeperwith respect to those areas or aspects ofthe premises which are similar tothose of a merchant, including but not limited to shops, restaurants, and lobby areas oforwithin the hotel, motel, or inn. E

### In his deposition, Mr. Oliver testified that on the date of the incident, he



### was at the Belle with his wife, Vera, and Ms. Martin, a family friend, when they 

### decided to eat at the buffet in the casino before leaving. The video surveillance 

### shows that shortly after boarding the escalator, Mr. Oliver fell backwards. The 

### security shift manager stated in his incident report that Mr. Oliver reported that Mr. Oliver " 

### lost his balance and fell on the escalator on his way up to the third deck buffet." 

### Mr. Oliver later gave a written statement, wherein he stated that his f]oot got caught in the escalator and [ he] fell back" and again that he fell after his "foot got caught in escalator." Mr. Oliver "complained ofsome pain in his back, 

### leg, neck and head," but refused medical treatment when it was offered, and he 

### refused any help from the casino staff. 

### The security manager also reported that t]here were no substances, debris or defects on the escalator that could have caused or contributed to [ Mr.] Oliver's fall." The video indicates that the escalator 

### steps appear to be clean, dry, and free of any foreign substances. However, Mr. Oliver, his wife, and Ms. Martin all testified in their depositions that a liquid was on the escalator steps.4 

### Mr. Oliverargues that histestimony, aswell asthe testimony of Mrs. Oliver and Ms. Martin, that a liquid was on the escalator steps, was sufficient to establish 

### an unreasonably dangerous condition. Tothe contrary,the Belle argues thateven if, for the sake of argument, there was a liquid or some other substance on the elevator steps, Mr. Oliver failed to show that the Belle either created or had actual 

### or constructive notice ofthe condition causing his damage as required under LSAR.S. 9: 2800.6B(2). We agree. Constructive notice means the claimant has proven that the condition existed forsuch a period oftime that itwould have been discovered ifthe merchant had exercised reasonable care. LSA-R.S. 9: 2800.6C(1). In White v. Wal- Mart Stores, Inc., 97-0393 (La. 9/9/97), 699 So.2d 1081, 1084, the Louisiana Supreme Court stated that although there is no bright line time period, the temporal element

4 There is no indication that this information was reported to the Belle personnel after Mr. Oliver's fall, and it is not in the incident report. A

### in a slip and fall claim requires a ' positive showing" 

### by the plaintiff that the

hazardous condition existed for some time priorto the fall. 

### A claimant who simply 

### shows that the condition existed without an additional showing that the condition 

### existed for some time before the fall has not carried the burden of proving constructive notice as mandated bythe statute. White,699 So.2d at 1084; Clark

v. J -H -J Inc., 13-0432 ( 

### La.App. 1 Cir. 11/ 1/ 13), 136 So.3d 815, 817- 18, writ denied, 13-2780 ( La. 2/ 14/ 14), 132 So.3d 964. 

### On our de novo review, we find that the Belle sufficiently pointed out the absence offactual supportfor one or more elements essential to Mr. Oliver's claim. See LSA-C.C.P. art. 966D( 1). The burden then shifted to Mr. Oliver to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the Belle was not entitled to judgment as a matter of law. Other than the deposition statements of Mr. Oliver, Mrs. Oliver, and Ms. Martin taken more than a year and a half after Mr. Oliver's fall, the record contains no evidence that a liquid substance was present on the escalator steps at the time of Mr. Oliver's fall. 

### No liquid of any kind is visible on the escalator in the video showing Mr. Oliver'sfall, and there are no incident reports documenting any liquid
on the escalator steps. 

### Additionally, even accepting the self-serving statements of Mr. and Mrs. Oliver and the statement of Ms. Martin as true, Mr. Oliver failed to 

### present any evidence that the Belle had actual or constructive knowledge of the alleged liquid on the escalator. Mr. Oliver, Mrs. Oliver, and Ms. Martin did not 

### know howthe liquid came to be on the escalator,whatthe liquid was, or how long the liquid was present on the escalator, before Mr. Oliver fell. Moreover, no 

### evidence was presented of any customer complaints regarding any liquid on the escalator either before or after Mr. Oliver's fall, nor was any evidence presented that the escalator required maintenance following Mr. Oliver's fall. 

### Accordingly, Mr. Oliver has not shown that the Belle created or had actual or constructive notice of the allegedly hazardous condition caused by the liquid prior to his fall. Because Mr. Oliver failed to establish factual support for all of the

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### elements of his claim, there is no genuine issue of material fact, and the trial court



### correctly granted summaryjudgment.5 CONCLUSION For the reasons stated above, we affirm the April 13, 2021 judgment ofthe 

### trial court granting summary judgment in favor of Belle of Orleans, L.L.C. d/b/a 

### Amelia Belle Casino and dismissing Alton Oliver's claims against it with prejudice. All costs of this appeal are assessed to Alton Oliver. AFFIRMED.

5 Similarly, based on the Belle's lackofactual orconstructive knowledge ofthe allegedly hazardous condition, we find that Mr. Oliver's claims, under any alternative theory of liability would also fail.