No Duty to Protect Against Unforeseeable T-Shirt Throwing

In February 2010, the plaintiff, Beverly Zacher, was in attendance at a party at Harrah’s Casino in downtown New Orleans, which was being held to celebrate the New Orleans’ Saints Super Bowl victory that season. While in attendance, Ms. Zacher was standing near the back of the party venue, when she was allegedly run into by a man attempting to catch a white t-shirt that was thrown off of the party’s stage, causing her to fall and injure her shoulder, ankle, and thigh. Ms. Zacher filed suit against Harrah’s asserting claims of negligence, strict liability, and merchant liability for her injuries. After a one-day bench trial, the trial court found that Harrah’s was in part liable for Ms. Zacher’s injuries because Harrah’s breached its duty to provide adequate security to prevent such an accident from happening. Subsequently, Harrah’s filed an appeal, Zacher v. Harrah’s New Orleans Management Co.

On appeal, the court determined that the trial court erred in finding that Harrah’s breached its duty to Ms. Zacher to provide security to prevent “an accident.” Significant to the court’s finding, was the fact that the planned giveaway at the Super Bowl party was a black New Orleans Saints towel, which all witnesses said were handed out, rather than thrown, from the party’s stage. The white t-shirt throwing was not a planned event on the part of Harrah’s, and instead appeared to be based upon a spontaneous decision by the party’s M.C. Thus, the court found it unreasonable to find that Harrah’s had a duty to police against the M.C.’s unexpected act of throwing t-shirts into the crowd. Importantly, the court noted that, if Harrah’s had planned a promotional t-shirt throwing event that caused an injury, it could have been found liable.

Alternatively, Ms. Zacher argued that Harrah’s was liable for the M.C.’s actions because it had control over the premises at all times. The court rejected this argument, citing La. R.S. 9:2800.6, Louisiana’s statue governing merchant liability, reasoning that under the statute Harrah’s would only be liable for its own negligence and for defects or hazardous conditions on its property that it knew of or should have known about. Because there was no evidence that Harrah’s was aware that the M.C. would throw t-shirts into the crowd, the court rejected Ms. Zacher’s argument and reversed the judgment of the trial court, finding for Harrah’s.

Takeaway: A merchant does not have a duty to provide security to protect against an unforeseeable accident. If, however, a merchant is engaging in an activity in which an accident is reasonably foreseeable, then such a duty may arise.

This article was co-authored by Jon Phelps, an associate at Irwin Fritchie Urquhart & Moore LLC.

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Without Causation, Plaintiff's Claims are Cut Loose (on the Dance Floor)

On May 20, 2011, Lisa Carney and her friend Daven Hill decided to hit the dance floor at the Celebrity Lounge in the Eldorado Casino Resort in Shreveport. While dancing at the Lounge, Carney and Hill observed some pieces of glass on the left side of the dance floor and told a bartender about it. Carney and Hill then returned to another area of the dance floor and had only been dancing a short while, when suddenly the top of Carney’s right foot was severely cut. Neither Hill nor Carney observed how Carney’s foot was cut, and Hill said she had not seen any glass in the area where they were dancing at that time. 

An Eldorado employee placed Carney in a wheelchair and she was taken out of the Lounge. At the employee’s request, Carney wrote a statement about the incident, writing that she was “dancing on stage and glass hit my foot.” An Eldorado Security Manager also filled out an incident report and noted Carney stated that “she was dancing and an unknown guest dropped a drink glass on the dance floor causing a piece of glass to hit the top of her right foot.”

The day after the incident, Carney made a visit to the emergency room, where the physician told her she had sustained a laceration to the top of her right foot with “impaired tendons.” Carney then filed a petition for damages against Eldorado Resort Casino in the First Judicial District Court for the Parish of Caddo. The trial court issued judgment in favor of Eldorado, dismissing Carney’s claims, finding that the Merchant Liability Statute (pdf), was inapplicable because Carney’s injuries were not caused by a “fall.” The trial court further found that Carney failed to produce evidence sufficient to meet the burden of proving that her injury was caused by broken glass on the floor, rather than by another patron dropping a glass near her or stepping on her foot. 

Carney appealed the judgment to the Louisiana Second Circuit Court of Appeals, Carney v. Eldorado Resort Casino Shreveport, arguing that the trial court should have applied the Merchant Liability Statute to the lawsuit because it involved the safety of a merchant’s premises. On appeal, the Second Circuit agreed with Carney in part. The appellate court found that the Merchant Liability Statute was applicable because the lawsuit alleged liability against a merchant for a patron’s injuries resulting from an accident on the merchant’s premises. However, the appellate court also held that the trial court properly found Subsection (B) of the statute inapplicable, because it addressed damages “sustained because of a fall,” and Carney’s alleged injury did not involve a fall. Applying Subsection (A) of the statute instead, the appellate court noted that although the merchant is required to keep the premises safe from unreasonable risks, “[a] merchant is not liable every time an incident happens.” Therefore, the appellate court agreed with the trial court’s ruling that Carney had the burden of proving that: (1) Eldorado owed her a duty; (2) Eldorado breached that duty; and (3) the breach was a cause of her injury. 

The appellate court then applied La. Rev. Stat. Ann. § 9:2800.6(A) to conduct a duty-risk analysis of Carney’s claim, which first required Carney to prove that Eldorado’s conduct was a “cause-in-fact” of the cut on her foot. This placed the burden on Carney to show that she would not have cut her foot but for Eldorado’s conduct. First, the appellate court looked to Carney’s own testimony that she did not know how her foot was injured, as well as her admissions that the cut might have resulted from another dancer dropping a drink on the floor, and that she “just assumed” the cut was from the glass which she and Hill had seen on the floor earlier. The appellate court then noted Hill’s testimony that the glass she and Carney had seen on the floor earlier was in a different area than where they were dancing when Carney’s foot was cut. This testimony of Carney and Hill, combined with the Eldorado Manager’s incident report, suggested to the appellate court that “[Carney]’s injury was caused by another patron who was not in [Eldorado]’s control and [Eldorado] could not have prevented the injury in the exercise of reasonable care.” Accordingly, the appellate court found no manifest error in the trial court’s decision that Carney failed to prove causation, and affirmed judgment in favor of Eldorado. 

Take-Away: A merchant is not per se liable every time a patron is injured on its premises; the plaintiff still has the burden of proving that the merchant’s conduct somehow caused the injury. And when the injury is caused by the conduct of another patron who is not in the merchant’s control, the merchant cannot be held liable.   

This article was co-authored by Meera Sossamon, an associate at Irwin Fritchie Urquhart & Moore LLC. 

Swiveled Out Of Court--Just Because Chair Has Some Swivel to It, Doesn't Mean it's Defective

Barry Smith (“Smith”), a patron of Harrah’s casino in New Orleans, attempted to sit in a chair when it swiveled, which caused him to fall and injury his leg. Smith sued the casino on the grounds that it was grossly negligent in failing to warn patrons of the potential dangers presented by the swiveling chair. He further claimed that the casino was negligent for its failure to remove the chair prior to his accident.

After discovery was conducted, the casino moved for summary judgment on the ground that the swivel chair was not unreasonably dangerous. In support of its motion, the casino highlighted Smith’s admission that he was caught off guard when the chair swiveled and at the time he was operating under the assumption that all chairs in the casino’s slot machine area were in a fixed position. Under Louisiana law, a plaintiff, like Smith, has the burden of establishing that the chair presented an unreasonable risk of harm and that the risk of harm is reasonably foreseeable. See La.R.S. 9:2800.6(B)(1)(pdf). Because Smith failed to meet this burden, the trial court dismissed all of his claims. Smith subsequently appealed in Smith v. Casino New Orleans Casino .

On appeal, Smith asserted that the trial court made improper factual determinations that the chair was neither dangerous nor defective. He contended that the chair swiveled faster and further than other casino chairs he had sat on that night, which he claimed created a dangerous condition. He also argued that because the chair did not behave exactly like all of the other chairs in the casino, it was defective. The court dismissed these arguments as being conclusory, speculative, and insufficient to meet Smith’s burden of proof. And, the court found that Smith failed to offer any evidence that the swivel chair was defective or dangerous. Having failed to do so, Smith could not prove an essential element of his claim and on that basis the appellate court affirmed the trial court’s dismissal of Smith’s claims.

Take-Away: Mere conclusory or speculative allegations, without evidentiary support, are insufficient to meet a plaintiff’s burden of establishing that a condition at a property presents an unreasonable risk of harm.

Oh Craps: Casino Patron Who Slipped on Dice Is Out of Luck

Patricia Richardson was visiting Boomtown Casino when she slipped and fell on a die on the floor. The accident occurred while Richardson was walking by the craps table and talking to her brother. Richardson filed suit against the casino operators, alleging that she sustained injury as the result of the fall – Richardson v. Louisiana-1 Gaming, et al. The defendants moved for summary judgment, asserting that Richardson could not show that they had breached their duty of care. Defendants also argued that they did not have actual or constructive knowledge of the die on the floor before Richardson’s fall. The trial court granted defendants’ motion on the grounds that Richardson assumed the risk. The trial court reasoned that casino patrons have a heightened duty to look for dice on the floor near a dice table.

On appeal, Richardson argued that the assumption of risk doctrine had been abolished in Louisiana. She also asserted that there was an issue of fact as to whether the accident was foreseeable. The appellate court agreed with Richardson that the assumption of risk doctrine had been abolished in Louisiana. But the court upheld the ruling of the trial court on the ground that the damage-causing condition had not existed for a period of time before Richardson fell. In doing so, the appellate court relied on the undisputed testimony of the games supervisor at Boomtown, Jada Muhammad. Muhammad testified that the die was thrown by another player, bounced off the table, and landed on the floor. Richardson stepped on the die immediately after it hit the floor. Because Richardson stepped on the die just after it landed, the court reasoned that the defendants did not have constructive notice of the condition as required under La. Rev. Stat. § 9:2800.6 (pdf). Thus, Richardson could not prevail on her negligence claim.

Take-Away: A premises owner is not liable where the condition that causes the plaintiff’s injury does not exist for some period of time before the occurrence.

This article was co-authored by Camala Capodice, a member of Irwin Fritchie Urquhart & Moore LLC.

Casino Fight Does Not Result in Jackpot in Court

On July 8, 2005, Deidre Morales and her husband, Brian Morales, visited the Boomtown Casino in Harvey, Louisiana. While playing a nickel slot machine, Ms. Morales won the jackpot. Either Ronette Thompson or her boyfriend, who were at the casino with Ms. Thompson’s mother and father, had played the same nickel slot machine before Ms. Morales hit the jackpot. As she was waiting for the attendant to arrive to pay her, Ms. Morales was confronted by Ms. Thompson and an argument began. 

After the slot machine attendant, Aja Washington, arrived to make payment, Ms. Morales reportedly asked Ms. Washington to call security or to tell Ms. Thompson to “shut up.” Ms. Washington told Ms. Morales to ignore Ms. Thompson and moved Ms. Morales into the aisle. At this point, a fight began between Ms. Morales, Ms. Thompson, and Ms. Thompson’s father – Stewart Thompson. Security immediately reported to the scene of the fight, broke it up, and called the police.      

The Morales' filed suit against Boomtown, Ms. Thompson, and Mr. Thompson. They claimed, in relevant part, that Boomtown was responsible for Ms. Morales’ damages because: (1) the slot machine attendant, Ms. Washington, did not prevent the fight from occurring; (2) Ms. Washington did not evaluate the risk to Ms. Morales; and, (3) Boomtown’s surveillance and security teams did not prevent the fight. Boomtown responded by filing a Motion for Summary Judgment. Boomtown argued that it did not have a legal duty to prevent the “unexpected and spontaneous criminal acts” of the Thompson’s and that it acted reasonably by providing security to protect Ms. Morales. The Morales countered that the fight was reasonably foreseeable and that Ms. Washington should have called security when asked by Ms. Morales.   

After the judge heard the arguments of each side and reviewed the videotape of the incident at Boomtown, he ruled in favor of Boomtown and dismissed the Morales’ suit. The Morales appealed, arguing that there were genuine issues of material fact that prevented summary judgment, including whether the fight was reasonably foreseeable, whether the attendant should have recognized the danger and called security, and whether the Boomtown employees were properly trained to prevent the attack. 

On review, the Louisiana Court of Appeal for the Fifth Circuit upheld the trial court’s dismissal of the Morales’ suit. The Court reasoned that, generally, businesses do not have a duty to protect patrons from criminal activity of others, but are under an obligation to protect patrons when the criminal acts are reasonably foreseeable. The predictability and severity of the risk determines the duty owed by the business owner. The appellate court agreed that Boomtown did not have a duty to protect Ms. Morales, because the Morales’ failed to produce evidence to prove that the fight was reasonably foreseeable   

In fact, there was a two to three minute span of time between the slot machine attendant’s arrival and the fight. Even Ms. Morales testified that she did not know that Ms. Thomson was going to touch her until she approached her and pushed her. She also testified that she asked the attendant to call security or to tell Ms. Thompson to “shut up.” In response, the attendant moved Ms. Morales into the aisle and told her to ignore Ms. Thompson. The attendant confirmed that she also had no reason to expect that a physical fight would occur and security arrived on the scene within seconds.      

Take-Away: Business owners must take reasonable steps to protect their patrons from reasonably foreseeable injuries or physical altercations, but are not guarantors of safety in unpredictable situations.

This article was co-authored by Kerri Kane, an associate at Irwin Fritchie Urquhart & Moore LLC.