Mary Francis and Jasmyn Francis Versus Boomtown, LLC of Delaware and the Services Companies, Inc. of Florida D/B/A the Service Company

MARY FRANCIS AND JASMYN FRANCIS NO. 24-C-458

VERSUS FIFTH CIRCUIT

BOOMTOWN, LLC OF DELAWARE AND THE COURT OF APPEAL
SERVICES COMPANIES, INC. OF FLORIDA
D/B/A THE SERVICE COMPANY STATE OF LOUISIANA

December 11, 2024

Linda Wiseman
First Deputy Clerk

IN RE BOOMTOWN, LLC OF DELAWARE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S.
STEIB, JR., DIVISION "A", NUMBER 798-439

Panel composed of Judges Fredericka Homberg Wicker,
Scott U. Schlegel, and Timothy S. Marcel

WRIT DENIED

In this writ application, relator, Boomtown, L.L.C. of Delaware

(“Boomtown”), seeks review of the trial court’s September 27, 2024 judgment

denying its motion for summary judgment. For the following reasons, we deny

this writ application.

This case arises from an incident that occurred on September 2, 2018, at

Boomtown’s hotel in Harvey, Louisiana. Plaintiff, Mary Francis, was staying at

the hotel in a guest room reserved by one of her daughters, Brandi Malachar.

According to Ms. Francis, she is 5’10” and weighed 375 pounds at that time. Ms.

Francis asserts she had mobility issues and requested a handicap room, but at

check-in, the hotel informed her there were no handicap rooms available.

According to Ms. Francis, she agreed to stay and requested a shower chair, which

was brought to her room by a hotel employee, adjusted at her request, and placed

24-C-458

in the shower. Ms. Francis asserts that shortly after she sat on the shower chair, it

collapsed, causing her to fall and sustain serious injuries. Jasmyn Francis

(“Jasmyn”), who is also Ms. Francis’ daughter, contends she injured her arm when

she tried to help her mother while her mother was on the shower floor.

Ms. Francis and Jasmyn filed suit against Boomtown and The Service

Companies, Inc. of Florida (“Service Companies”), a housekeeping service,

asserting they were negligent and at fault for the incident and seeking to recover

damages sustained as a result. They later asserted that Boomtown and Service

Companies violated the Americans with Disabilities Act (“ADA”) by providing

Ms. Francis with a portable, unsecured, plastic, shower chair, which was

unreasonably dangerous.

On June 24, 2024, Boomtown filed a motion for summary judgment,

asserting there are no genuine issues of material fact and that plaintiffs cannot meet

their burden of proof at trial. Boomtown asserted that Ms. Malachar did not

request a handicap room when she made the reservation, which is supported by the

absence of any reference to a handicap room in the email confirmation for the

room. Boomtown also argued that Ms. Francis testified in her deposition that she

had a shower chair at home rated for 350 pounds, yet she did not inspect the chair

provided by Boomtown to make sure it would sustain her weight or request a chair

with such capacity. It indicated the shower chair used by Ms. Francis had a

warning on the back that the maximum weight was 250 pounds. Finally,

Boomtown argued there is no remedy for monetary damages under the ADA and

plaintiffs have no evidence that Boomtown failed to comply with the ADA. In

support of its motion, Boomtown submitted several exhibits, including depositions,

affidavits, and emails.

Plaintiffs filed an opposition memorandum arguing there are genuine issues

of material fact regarding whether Ms. Malachar requested a handicap room for

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Ms. Francis and whether Boomtown was negligent in providing Ms. Francis with a

shower chair with a weight capacity well below her “obvious” weight. They

further argued that discovery was not complete and that additional discovery was

necessary.

Plaintiffs attached several exhibits to their opposition memorandum,

including an affidavit from Nicholas Musso, an expert in architecture. In his

affidavit, Mr. Musso opined that Boomtown’s failure to provide Ms. Francis with a

room compliant with the ADA and its failure to provide her with a properly-rated

shower chair or to inform her of the weight capacity of the chair created a

dangerous hazard that caused the shower chair accident. Boomtown filed a reply

memorandum in which it objected to Mr. Musso’s affidavit on various grounds.

At a hearing on August 29, 2024, the trial court denied Boomtown’s motion

for summary judgment. Thereafter, on September 27, 2024, the trial court signed a

written judgment denying the motion for summary judgment and finding there

were genuine issues of material fact.

In this writ application, Boomtown argues that the trial court erred by

denying its motion for summary judgment, because there are no genuine issues of

material fact and it is clear that plaintiffs cannot meet their burden of proof at trial

pursuant to La. C.C. art. 2317, 2317.1, or the ADA. Additionally, Boomtown

contends the trial court erred by failing to sustain its objections to various portions

of Mr. Musso’s affidavit. They assert the trial court did not explicitly rule on the

objections and therefore, it is assumed that the objections were overruled.

Boomtown timely raised its objections to portions of Mr. Musso’s affidavit

in its reply memorandum, in accordance with La. C.C.P. art. 966(D)(2). La. C.C.P.

art. (D)(2) further provides that “[t]he court shall consider all objections prior to

rendering judgment” and “shall specifically state on the record or in writing

whether the court sustains or overrules the objections raise.”

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Boomtown has not included a transcript of the hearing on the motion for

summary judgment with its writ application, and neither the written judgment nor

the minute entry reflects the trial court’s ruling on any objections to Mr. Musso’s

affidavit. Likewise, there is no evidence showing Boomtown raised an objection

to the trial court’s alleged failure to rule on its objections to Mr. Musso’s affidavit.

Therefore, on the showing made, we cannot say the trial court erred.

A motion for summary judgment should be granted if there is no genuine

issue as to material fact and the mover is entitled to judgment as a matter of law.

La. C.C.P. art. 966(A)(3); Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.

App. 5 Cir. 11/29/11), 78 So.3d 849, 851. The initial burden of proof is with the

mover to show that no genuine issue of material fact exists. If the moving party

will not bear the burden of proof at trial, the moving party must only point out that

there is an absence of factual support for one or more elements essential to the

adverse party's claim, action, or defense. Id.; Romero v. Wal-Mart, Inc., 23-518

(La. App. 5 Cir. 5/29/24), 388 So.3d 1269, 1272, writ denied, 24-844 (La.

10/15/24), 394 So.3d 818.

Factual inferences reasonably drawn from the evidence must be construed in

favor of the party opposing the motion and all doubts must be resolved in the

opponent's favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050;

Varrecchio v. Lemoine Co., L.L.C., 23-603 (La. App. 5 Cir. 1/31/24), 381 So.3d

210, 214. In determining whether an issue of fact is genuine, as necessary for it to

preclude summary judgment, courts cannot consider the merits, make credibility

determinations, evaluate testimony or weigh evidence. Id. at 215; B & P

Restaurant Group, LLC v. Delta Administrative Services, LLC, 18-442 (La. App. 5

Cir. 9/4/19), 279 So.3d 492, 501, writ denied, 19-1755 (La. 1/14/20), 291 So.3d

685.

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After review, we agree with the trial court that there are genuine issues of

material fact that preclude summary judgment at this time. Accordingly, after de

novo review, we find no error in the trial court’s judgment denying Boomtown’s

motion for summary judgment, and we deny this writ application.

Gretna, Louisiana, this 11th day of December, 2024.

FHW
SUS
TSM

5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

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www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 12/11/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-458
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Raymond S. Steib, Jr. (DISTRICT JUDGE)
Kolby P. Marchand (Relator)
Peirce A. Hammond, II (Respondent)
John R. Peters, III (Respondent)
David M. Williams (Respondent)

MAILED