Rodney J. Henry, Jr., Et Ux. v. Pnk (Lake Charles), LLC

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1381

RODNEY J. HENRY, JR., ET UX.

VERSUS

PNK (LAKE CHARLES), LLC

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-3559
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy,
Judges.

AFFIRMED.

Thomas Joseph Solari
Woodley, Williams, Boudreau
P. O. Box 3731
Lake Charles, LA 70602-3731
(337) 433-6328
COUNSEL FOR DEFENDANT APPELLANT:
PNK (Lake Charles), LLC

Blaine Andrew Doucet
Attorney at Law
4216 Lake Street
Lake Charles, LA 70605
(337) 433-0100
COUNSEL FOR DEFENDANT APPELLANT:
PNK (Lake Charles), LLC

Barry Alwin Roach
Larry A. Roach, Inc.
2917 Ryan St.
Lake Charles, LA 70601
(337) 433-8504
COUNSEL FOR PLAINTIFFS APPELLEES:
Rodney J. Henry, Jr.
Sandra Henry

SAUNDERS, J.

This matter arises from a slip and fall at a casino buffet restaurant. Plaintiff

sued for damages, receiving awards for physical pain and suffering, medical

expenses, lost wages, and loss of consortium. The trial court found plaintiff’s

comparative fault to be 20%, the award reduced accordingly. Defendant casino

appeals the judgment of the trial court, asserting error of fact as to the size of the

wet area on which plaintiff purports to have fallen. Plaintiff also appeals, asserting

error of fact as to alcohol impairment contributing to his fall. For the following

reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Rodney J. Henry (hereinafter “Mr. Henry”) and his wife Sandra

(hereinafter “Mrs. Henry”), brought suit against PNK (Lake Charles), L.L.C., d/b/a

L’Auberge du Lac Hotel and Casino (hereinafter “L’Auberge”) for injuries

sustained while in the casino’s buffet restaurant on June 23, 2006. On the night of

the accident, the casino’s sous chef, Jared Rising (hereinafter “Mr. Rising”)

noticed a slick spot on the floor. Having begun his employment in January of 2006,

Mr. Rising’s position as sous chef includes the duties of kitchen manager or

kitchen supervisor. Part of these duties encompassed walking the floors of the

dining area, handling problems as they arose. The slick spot, which turned out to

be liquid butter, was located near the seafood section of the buffet area.

Next, Mr. Rising placed a chair on top of the butter spill, which he estimated

to be approximately one foot in size. At various locations in the casino, L’Auberge

placed “cleaning stations,” where a mop, bucket of water, and “wet floor” sign are

stowed for use in an accident. After placing the chair on top of the butter spill, Mr.

Rising went to a storage area and retrieved a mop, bucket, and “wet floor” sign.

He then moved the chair, mopped up the spill, and placed the sign on top of the

area he cleaned.

In the meantime, Mr. and Mrs. Henry entertained themselves at the casino.

That day, they traveled from Lafayette, Louisiana to Lake Charles to visit Mr.

Henry’s mother in a nursing home. After the visit, the couple went to L’Auberge,

where they gambled before proceeding to eat dinner. While gambling, Mr. Henry

consumed two to three beers. After being seated at a table at the casino’s

restaurant, Mr. and Mrs. Henry waited in line at the buffet, got their meals, and

returned to their table. Subsequently, Mr. Henry saw that crabs were available on a

small salad bar buffet. He went to the buffet, served himself crabs, turned around,

took a few steps, and fell down. Mr. Rising was alerted of the fall on his way back

to return the bucket and mop to the cleaning station.

L’Auberge Security Officer Jeffrey Hillman (hereinafter “Mr. Hillman”)

filled out the incident report. According to the report, Mr. Hillman was notified of

the accident at around 11:00 p.m. When Mr. Hillman spoke to Mr. Henry, Mr.

Henry told him that he was near the salad bar when he slipped on the wet floor.

Mr. Hillman then asked Mr. Henry whether he had seen a “wet floor” sign placed

at the location of his slip and fall. Mr. Henry responded that he did see a sign,

although he later denied making this statement. Mr. Henry was eventually

diagnosed with a cracked patella and a tear in the meniscus.

The trial court issued a judgment awarding damages to Mr. Henry to the

following effect: $20,000.00 for physical pain and suffering, $3,972.30 for

medical expenses, and $4,505.00 for loss of earnings, totaling $28,477.30. The

court also awarded Mrs. Henry $3,500.00 in loss of consortium damages. The

court allocated 80% fault to L’Auberge and 20% fault to Mr. Henry, for the

impairment his alcohol consumption caused. L’Auberge now appeals the trial
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court’s finding of liability. Mr. Henry answered the appeal with his own

assignment of error, contesting the allocation of fault assigned to him by the trial

court. For the reasons discussed herein, we affirm.

ASSIGNMENTS OF ERROR

Appellant’s Assignment of Error

1. The Trial Court committed manifest error by assuming facts not in
evidence when it found that the range of mopping performed by
L’Auberge employee Jared Rising was an area of five to ten feet.

Appellees’ Assignment of Error

1. The Trial Court committed manifest error in holding that Mr.
Henry was 20% at fault for contributory negligence when it found
that Mr. Henry drank two or three beers and that might have
contributed to the accident, when there was nothing in evidence
that established that Mr. Henry was impaired, or that such
impairment contributed in any way to Mr. Henry’s fall.

LAW AND ANALYSIS

Since the appellant and appellee allege error as to findings of fact, we must

apply the manifest error standard:

A court of appeal may not set aside a trial court’s or a jury’s
finding of fact in the absence of “manifest error” or unless it is
“clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This
court has announced a two-part test for the reversal of a factfinder’s
determinations:

1) The appellate court must find from the record that a reasonable
factual basis does not exist for the finding of the trial court, and

2) the appellate court must further determine that the record
establishes that the finding is clearly wrong (manifestly erroneous).

Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La. 1993).

The liability of a merchant for an injury which a person sustains on the

merchant’s premises is governed by the Louisiana Merchant Liability Act, which

states, in pertinent 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
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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
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 of the 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 of
the condition which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining
reasonable care, the absence of a written or verbal uniform cleanup or
safety procedure is insufficient, alone, to prove failure to exercise
reasonable care.

La.R.S. 9:2800.6.

This court has applied the Louisiana Merchant Liability Act to accidents

occurring at casinos. See Neal v. Players Lake Charles, L.L.C., 01-0244 (La.App.

3 Cir. 6/6/01), 787 So.2d 1213; Patin v. Evangeline Downs of Louisiana, Inc., 08-

988 (La.App. 3 Cir. 2/4/09), 3 So.3d 638.

Appellant’s Assignment of Error

L’Auberge asserts that the trial court committed manifest error by assuming

facts not in evidence when it found that the range of mopping performed by

L’Auberge employee Jared Rising was an area of five to ten feet. We find no merit

in this contention.

The trial court orally explained its reasons for judgment from the bench:

[Mr. Rising] said the floor was mopped. He was going to bring the
mop back and before he got to the closet to bring the mop back,
someone informed him somebody slip[ped] and fell. That is a pretty
quick type [sic] situation… With that testimony and the testimony of
the plaintiffs that just testified, it appears that some food fell on the
floor, the casino staff was alerted, they attempted to clean it up which
they did clean it up, they put a sign which is all proper and good, but
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apparently the area was more than just a foot or two. It seems the
range of mopping was done within five to ten feet, from the
witnesses[’] testimony, and the sign was placed in a direction where
all the patrons could not see it. It was one sign. From where the
plaintiffs were sitting, they did not see the sign.

The trial judge goes on to state that the plaintiffs established that the

defendant was liable under La.R.S. 9:2800.6: the defendant “failed to use

reasonable care to keep the area free of hazardous condition despite prior

knowledge of the defective condition,” and “in allowing a dangerous condition to

exist in the buffet area of the hotel and casino thereby creating an unreasonable and

foreseeable risk of hazard and injury to the plaintiff.”

At issue here is whether there is evidentiary support in the record that would

support the trial court’s finding that the range of mopping was five to ten feet.

Testimony by two witnesses offer disparate approximations of the size of the wet

spot on the floor. Mr. Rising on direct examination stated that he mopped an area

of two to three feet. On cross examination, he testified that the area was three to

four feet. On the other hand, Mrs. Henry testified that she noticed a fold out sign

ten to twelve feet from the spot where Henry had fallen, although she did not

witness the actual mopping itself. These estimations range from two feet to twelve

feet. The trial court’s finding of five to ten feet, then, is a reasonable estimation

based on each party’s claim. We reject L’Auberge’s argument that the trial court

took notice of facts not in evidence. Therefore, we find that the trial court did not

commit manifest error and affirm the underlying judgment finding L’Auberge

liable.

Appellees’ Assignment of Error

Mr. and Mrs. Henry contend that the Trial Court committed manifest error in

holding that Mr. Henry was 20% at fault when it found that Mr. Henry drank two

or three beers and that alcohol might have contributed to the accident, when there
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was nothing in evidence that established that Mr. Henry was impaired; or that such

impairment contributed in any way to Mr. Henry’s fall. Mr. and Mrs. Henry

maintain that the trial court took notice of facts not in evidence in finding fault on

Mr. Henry’s part. We reject this argument and affirm the judgment of the trial

court.

Louisiana Civil Code Article 2323 governs when a court should allocate

fault in a suit for damages:

A. In any action for damages where a person suffers injury,
death, or loss, the degree or percentage of fault of all persons causing
or contributing to the injury, death, or loss shall be determined,
regardless of whether the person is a party to the action or a nonparty,
and regardless of the person's insolvency, ability to pay, immunity by
statute, including but not limited to the provisions of R.S. 23:1032, or
that the other person's identity is not known or reasonably
ascertainable. If a person suffers injury, death, or loss as the result
partly of his own negligence and partly as a result of the fault of
another person or persons, the amount of damages recoverable shall
be reduced in proportion to the degree or percentage of negligence
attributable to the person suffering the injury, death, or loss.

B. The provisions of Paragraph A shall apply to any claim for
recovery of damages for injury, death, or loss asserted under any law
or legal doctrine or theory of liability, regardless of the basis of
liability.

La.Civ. Code art. 2323.

The allocation of comparative fault is a factual determination and is subject

to the manifest error or clearly wrong standard of review. Watson v. State Farm

Fire and Casualty Insurance Company, 469 So.2d 967 (La.1985). Here, the trial

court in its oral reasons for judgment stated:

[I] find that Mr. Henry was drinking and that might have
contributed. So, out of an abundance of fairness, I am going to
[assign] a 20% contributory negligence. You are at the casino. You
are drinking beer. You are probably not as alert as you should be[,] so
I am going to make a 20% [allocation].

The issue, as in the previous assignment of error, is whether there is evidentiary

support in the record that would make the trial court’s finding reasonable. Mr.
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Henry estimated that he had two or three beers. The accident occurred around

11:00 p.m., after three hours of gambling and drinking, and before Mr. Henry was

able to eat. The record also shows that a warning sign was placed in the general

vicinity to warn patrons of the wet area. These facts in the record support a finding

that Mr. Henry was 20% at fault, insofar as his alcohol consumption impaired him

and contributed to his fall, and/or he failed to see and/or heed the warning sign.

The trial court was reasonable in making this finding in light of all the evidence. It

appears, then, that the trial court was not clearly wrong. We affirm the judgment

of the trial court.

CONCLUSION

The trial court did not commit manifest error in finding that the wet area was

five to ten feet in size, nor did the trial court commit manifest error in finding that

Mr. Henry’s alcohol consumption impaired him and contributed to the fall. We

affirm the judgment of the trial court. All costs are assessed to the appellant, PNK,

(Lake Charles), L.L.C. d/b/a L’Auberge du Lac Hotel and Casino.

AFFIRMED.

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