Janet Thymes v. Golden Nugget Lake Charles, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-100

JANET THYMES

VERSUS

GOLDEN NUGGET LAKE CHARLES, LLC

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2017-4773
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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WILBUR L. STILES
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Mark A. Delphin
Delphin Law Offices
626 Broad Street
Lake Charles, LA 70601
(337) 439-3939
COUNSEL FOR PLAINTIFF/APPELLANT:
Janet Thymes

Arthur J. O’Keefe
Of-Counsel for Delphin Law Offices
626 Broad Street
Lake Charles, LA 70601
(337) 309-6122
COUNSEL FOR PLAINTIFF/APPELLANT:
Janet Thymes

Christopher P. Ieyoub
Kyle M. Beasley
Plauche, Smith & Nieset, LLC
P.O. Drawer 1705
Lake Charles, LA 70601
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
Golden Nugget Lake Charles, LLC

STILES, Judge.

A jury returned a verdict on March 10, 2022, finding that the appellee,

Defendant Golden Nugget Lake Charles, LLC (“the Golden Nugget”), did not have

actual or constructive knowledge of the existence of an unsecured chair at the Golden

Nugget casino, nor did the appellant, Plaintiff Janet Thymes, suffer injuries as a

result of her fall from said unsecured chair. Ms. Thymes appeals the trial court’s

March 18, 2022 judgment making the jury verdict the judgment of the court and

dismissing Ms. Thymes’ claims against the Golden Nugget, with prejudice, at Ms.

Thymes’ cost. For the reasons set forth below, we affirm the judgment of the trial

court.

FACTS AND PROCEDURAL HISTORY

On March 4, 2017, Ms. Thymes and her friend Melissa Mills drove from

Houston, Texas to attend a concert at the L’Auberge Casino in Lake Charles,

Louisiana. After the concert, Ms. Thymes and Ms. Mills went over to the Golden

Nugget casino to play the slot machines. Once at the Golden Nugget, the women

separated and went to different areas of the casino. A little after 10:00 p.m., Ms.

Thymes sat in a chair directly facing a slot machine. As she leaned back in the chair,

the chair fell over backwards, causing Ms. Thymes to fall to the floor, landing on

her left side. Acadian Ambulance Service transported Ms. Thymes to the emergency

room at Christus St. Patrick Hospital in Lake Charles, where she was seen by Dr.

Kamran Chaudary.

Ms. Thymes filed a Petition for Damages on November 13, 2017, alleging that

as a result of her fall at the casino, she suffered “painful personal injuries to her neck,

back, shoulders, left wrist, knees and other parts of her mind and body, including her

muscles, ligaments, nerves and tissues.” The Golden Nugget and Gasser Chair

Company, Inc. were named as defendants in the petition with claims asserted against

them for negligence, fault, want of care, and/or strict liability.1

A jury trial commenced on March 7, 2022. After several days of testimony

and evidence, the jury returned a verdict on March 10, 2022, finding that the Golden

Nugget did not have actual or constructive knowledge of the existence of the

unsecured sled base chair and that Ms. Thymes did not suffer injuries as a result of

the March 4, 2017 incident. The trial court rendered judgment on March 18, 2022,

making the jury’s verdict a judgment of the court, denying and dismissing all of Ms.

Thymes’ claims against the Golden Nugget with prejudice and assessing Ms.

Thymes with all costs.

Ms. Thymes filed a Motion for a Judgment Notwithstanding the Verdict and,

in the Alternative, Motion for a New Trial, arguing that the evidence in the record,

as well as the facts and inferences, were so strongly and overwhelmingly in her favor

and against the Golden Nugget on the issues addressed by the jury that reasonable

persons could not have arrived at the jury verdict on which the March 18, 2022

judgment was based. Alternatively, Ms. Thymes argued that because the jury verdict

was so clearly contrary to the law and evidence, she was entitled to a new trial. A

hearing was held before the trial court on May 23, 2022, after which an order was

issued denying Ms. Thymes’ motion and finding that “reasonable minds could

conclude that the Golden Nugget casino did not have constructive knowledge of the

slot chair that was allegedly defective and caused the alleged injury to the Plaintiff.”

1
Ms. Thymes’ claims against Gasser Chair Company, Inc. were dismissed with prejudice
pursuant to a February 4, 2021 judgment granting Gasser Chair Company’s motion for summary
judgment.

2

ASSIGNMENTS OF ERROR

Ms. Thymes has appealed the jury’s March 10, 2022 verdict, asserting that the

jury committed manifest error in reaching a decision which was clearly wrong and

contrary to the evidence and applicable law. She asserts four assignments of error:

1. The jury failed to conclude that the “sled chair” posed an
unreasonable risk of injury to Ms. Thymes and other patrons.

2. The jury refused to find that the “Golden Nugget”, through its
employees, had constructive knowledge/notice of the unsecured “sled
chair.”

3. The jury failed to find that the “Golden Nugget” did not use
reasonable care to remove the danger posed to Ms. Thymes by the “sled
chair.”

4. The jury refused to find that Ms. Thymes was injured in the
fall at the “Golden Nugget” and, failed to assess damages for past and
future medical expenses, past and future pain and suffering, permanent
disability, past and future mental anguish, and loss of the ability to
enjoy life.

Ms. Thymes thus presents two issues for review: (1) whether the jury

committed manifest error and/or issued a verdict which was clearly wrong in failing

to find the Golden Nugget at fault for her March 4, 2017 fall; and (2) the nature and

extent of Ms. Thymes’ injuries and damages.

DISCUSSION

Standard of Review

When reviewing a verdict in a civil case, the manifest error-clearly wrong

standard applies, and the appellate court should not disturb a finding of fact made in

the trial court unless it is clearly wrong. The Louisiana Supreme Court fashioned a

two-part test when applying this standard: (1) is there a reasonable factual basis for

the finding of the trial court; and (2) does a reading of the record establish that the

finding is not clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365

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So.2d 1330 (La.1978). In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), the court

discussed the manifest error-clearly wrong standard in detail, stating:

It is well settled that 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,” and where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the appellate court
may feel that its own evaluations and inferences are as reasonable.
Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v.
Koehring, 283 So.2d 716, 724 (La.1973). . . . [I]f the trial court or jury
findings are reasonable in light of the record reviewed in its entirety,
the court of appeal may not reverse even though convinced that had it
been sitting as the trier of fact, it would have weighed the evidence
differently. Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be manifestly erroneous or
clearly wrong. Arceneaux, supra at 1333, Watson v. State Farm Fire &
Casualty Ins. Co., 469 So.2d 967 (La.1985). . . .

When findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener’s understanding and belief in what
is said. Canter, supra at 724.

Thus, “[a] jury’s findings of fact should be affirmed unless characterized by manifest

error, and should not be upset except in the most compelling and clearest case of

error.” Arnold v. T.G. & Y. Stores Co., 466 So.2d 529, 532 (La.App. 3 Cir.), writ

denied, 470 So.2d 126 (La. 1985).

The Unsecured Sled Chair

Ms. Thymes claims she was injured when the chair she sat in at the Golden

Nugget casino suddenly fell backwards, causing her to fall onto the floor. The chair

at issue is a “sled-based chair.” The cushioned seat of this chair is attached to a single

post which is in turn welded to a metal plate resembling a sled. The sled part of the

chair is what rests on the floor. Gasser Chair Company, Inc. manufactured and sold

the chair to the Golden Nugget. Mark Gasser, the president of Gasser Chair

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Company, testified at trial via video deposition. He explained that there is an

upturned lip on the front of the sled-base that is designed to engage in the female

bracket attached to the base of the slot machine. The sled-based chair is intended to

be attached to the base of the slot machine cabinet so that it remains in a fixed

position and is not moved by patrons of the casino.

It is uncontested that the casino’s video surveillance the night of the incident

shows an unidentified patron of the casino dislodging the sled-based chair at issue

at approximately 7:06 p.m. While standing behind the chair, this patron leaned

against the back of it, tilting it forward so that he could reach the slot machine over

the chair. In doing so, he dislodged the sled-base of the chair, causing it to become

detached from the bracket at the base of the slot machine. The chair remained in its

original position before the slot machine; it was simply free-standing and no longer

attached to the slot machine. Video surveillance further shows multiple casino

employees walking past the unattached chair without seeming to notice it is no

longer attached, as well as multiple casino patrons sitting in the chair throughout the

evening without difficulty. Ms. Thymes then sat in the chair at approximately 10:05

p.m. and immediately fell backward.

Was the Golden Nugget at Fault for Ms. Thymes’ Fall

The verdict form filled out by the jurors at the trial of this matter included four

initial questions:2

1. Did the unsecured sled base chair pose an unreasonable risk of injury
to Janet Thymes?

2
We note that the first three questions of the verdict form follow La.R.S. 9:2800.6(B),
which requires a claimant alleging a negligence claim against a merchant to prove all of the
following elements of his cause of action: (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; and (3) the merchant failed to exercise reasonable care.

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2. Prior to Janet Thymes’ fall, did the Golden Nugget Casino have
actual or constructive knowledge of the existence of the unsecured
sled base chair?

3. Did Golden Nugget fail to exercise reasonable care to avoid the
danger posed to Janet Thymes?

4. Did Janet Thymes suffer injuries as a result of the March 4, 2017,
incident?

The jury checked off “No” for the second question (did the Golden Nugget Casino

have actual or constructive knowledge of the existence of the unsecured sled base

chair) and checked off “No” for the fourth question (did Janet Thymes suffer injuries

as a result of the March 4, 2017, incident). The jury did not record any responses to

questions one and three. However, we note that following question four, the verdict

form instructs, “If the answer is ‘No’ to any of the above, sign this verdict form and

return the form to the court representative.” (Emphasis added.) Thus, the jury

followed directions by returning the form once they had answered “No” for two of

the questions. While it was noted by the trial court and counsel at the time the verdict

was read in open court, neither party objected to the fact that two questions remained

unanswered and neither party asked that the verdict form be returned to the jury for

completion of questions one and three.

Ms. Thymes’ assignments of error follow questions one through four of the

verdict form. We note that assignments of error one through three all relate to

whether the Golden Nugget was at fault for Ms. Thymes’ fall.

Assignment of Error Number 1

Ms. Thymes’ first assignment of error is whether the jury was clearly wrong

by failing to conclude that the sled-based chair posed an unreasonable risk of injury

to Ms. Thymes and other patrons. Ms. Thymes argues in her brief that the sled-based

chair has an innate potential to fall over backwards because the post supporting the

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chair is positioned to the rear of the sled base such that the backrest extends beyond

the sled base. The chair is meant to be secured into the bracket attached to the slot

machine, preventing it from falling over. The parties stipulated at trial that there were

twelve instances of people falling over in unsecured sled-based chairs between 2014

(when the casino opened) and this incident in 2017. In addition, when the Golden

Nugget purchased the chairs from Gasser Chair Company, a brochure was included

with the chairs advising that they were meant to be secured into the base of the slot

machine cabinet. Yet the Golden Nugget continued to allow patrons to sit in

unsecured sled-based chairs.

The jury chose not to answer question one, whether the chair posed an

unreasonable risk of injury. We note that a sled-based chair was introduced into

evidence at trial and, when requested by the jury during deliberations, sent to the

jury for inspection. They, therefore, had access to and were able to sit in a chair

which was the same model as the chair at issue.

Jason English testified at trial as an expert in the field of safety engineering.

After examining and testing the sled-based chair, he opined at trial that this kind of

chair is not designed for stability when disconnected, as it does not have a wide

enough base of support towards the rear of the chair. It is, therefore, not safe for a

patron’s use when unsecured. However, when questioned in more detail about his

testing of the sled-based chair’s stability, Mr. English admitted that he did not

conduct any force testing on the chair while it was occupied, nor did he place weights

in the chair during his force testing to simulate the weight of a human occupant. In

addition, none of his computer modeling or other scientific methods attempted to

simulate a human occupant in the seat.

7

Velma Mock, the safety manager for the Golden Nugget, also testified at trial.

When questioned about other patrons sitting in the unattached chair at issue prior to

Ms. Thymes’ fall, she testified to the following:

Q. Are you aware of any other guests who sat in this chair in that
same manner on the night that Ms. Thymes had her incident?

A. That particular chair that’s –

Q. That particular chair.

A. Yes, sir. Oh, yeah.

Q. Are you aware –

A. There was several.

Q. You say “Several.” Are you aware of how many?

A. Nine, ten in that three-hour clip that we have coverage of.

Q. And how is it that you know that it’s nine or ten people?

A. Because I counted when I watched the surveillance.

Q. And when you say, “surveillance,” is that video?

A. The surveillance video, yes, sir.

Q. So you’ve seen video of nine other people sitting in that chair
before Ms. Thymes?

A. Yes, sir.

Q. Did any of them fall?

A. No, sir.

Q. Did any of them appear to have a problem?

A. No, sir.

Ms. Mock did acknowledge that there had been previous cases where a patron tilted

over and fell while sitting in an unattached sled-based chair at the casino. She

specified, however, that, in the three-year period that the casino had been open,

8

“there was just a couple of handfuls, and that’s out of the millions of people that visit

the casino floor every year. I mean, just in 2017, we had over 3 million people visit

the casino floor.”

Furthermore, while Mr. Gasser acknowledged in his video deposition

testimony that the sled-based chair is designed to be used for patron seating only

when attached to the bracket on the slot machine, he testified that he was not aware

of anyone in his company falling over while sitting in a free-standing sled-based

chair. In fact, he himself sat, and even stood, on an unattached sled-based chair and

did not fall.

While there is some testimony and evidence in the record to support Ms.

Thymes’ argument that the unsecured sled-based chair posed a risk of injury to her

and other patrons, we find that there is also adequate testimony and evidence in the

record to reasonably support the conclusion that an unattached sled-based chair does

not inherently present an unreasonable risk of injury. We, therefore, find no merit in

Ms. Thymes’ argument that the jury should have concluded the sled-based chair

posed an unreasonable risk of injury to patrons of the casino.

Assignment of Error Number 2

Ms. Thymes’ second assignment of error is whether the jury was clearly

wrong in finding that the Golden Nugget had no constructive knowledge/notice of

the unsecured sled-based chair. We note that the jury did check off “No” to this

question on the verdict form, finding that the Golden Nugget had no actual or

constructive knowledge of the existence of the unsecured sled-based chair.

As defined by La.R.S. 9:2800.6(C)(1):

“Constructive notice” means the claimant has proven that the
condition existed for such a period of time that it would have been
discovered if the merchant had exercised reasonable care. The presence

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of an employee of the merchant in the vicinity in which the condition
exists does not, alone, constitute constructive notice, unless it is shown
that the employee knew, or in the exercise of reasonable care should
have known, of the condition.

Ms. Thymes notes that the chair at issue remained unattached for

approximately three hours prior to her fall. The unidentified patron dislodged it at

approximately 7:06 p.m., and Ms. Thymes fell over in the chair at approximately

10:05 p.m. During that three-hour period, as shown in the Golden Nugget’s

surveillance video, over fifty casino employees walked past the unattached sled-

based chair and none of them stopped to reattach it. Ms. Thymes further suggests

that the casino employee monitoring the surveillance video should have noticed the

chair had become unattached.

The Golden Nugget addresses this assignment of error in its appellee brief. It

acknowledges that the video surveillance shows various casino employees walking

past the unattached chair; however, it simply does not show that any of them had

actual knowledge that the chair had become unattached. While casino employees are

in the vicinity of the chair, most do not even look in the direction of the chair. And

those that do look towards the chair only glance in its direction or have their view

obstructed by casino patrons. Thus, there is nothing to show that anyone employed

by the Golden Nugget had actual knowledge that the chair was unattached.

As for whether any casino employee had constructive knowledge of the

unattached chair, the Golden Nugget notes that the definition of “constructive notice”

included in La.R.S. 9:2800.6(C)(1) (emphasis added) requires the claimant to prove

“that the condition existed for such a period of time that it would have been

discovered if the merchant had exercised reasonable care.” It is specifically noted

that “[t]he presence of an employee of the merchant in the vicinity in which the

10

condition exists does not, alone, constitute constructive notice unless it is shown

that the employee knew, or in the exercise of reasonable care should have known,

of the condition.” Id. (Emphasis added.) The Golden Nugget argues that the question

then becomes whether any evidence was submitted at trial showing any Golden

Nugget employee failing to exercise reasonable care.

The Supreme Court has found “that where a claimant is relying upon

constructive notice under La.R.S. 9:2800.6(B)(2) (1991), the claimant must come

forward with positive evidence showing that the damage-causing condition existed

for some period of time, and that such time was sufficient to place the merchant

defendant on notice of its existence.” White v. Wal-Mart Store, Inc., 97-393, p. 1 (La.

9/9/97), 699 So.2d 1081, 1082. “Whether the period of time is sufficiently lengthy

that a merchant should have discovered the condition is necessarily a fact question[.]”

Id. at 1084. Ms. Thymes has shown, through the Golden Nugget’s video surveillance,

that the chair at issue remained unattached for three hours. We must consider, under

the specific facts of this case, whether the employees of the Golden Nugget were

exercising reasonable care during that three-hour period when they failed to notice

and reattach the sled-based chair.

In viewing the video surveillance taken the night of Ms. Thymes’ fall, we note

that the sled-based chair at issue remained in its place in front of the slot machine

throughout the three hours that it remained unattached. The video surveillance

produced in evidence to this court is the same video surveillance shown to the jury

during Ms. Mock’s testimony and Mr. English’s testimony in an effort to show how

many casino employees walked past the unattached sled-chair without stopping to

reattach it.

11

During his testimony, Mr. English was shown a still shot from the video

surveillance as well as a clip of the surveillance video which appear to show the

patterned carpet of the casino visible between the black base of the slot machine

cabinet and the sled base of the front of the chair. According to Mr. English, the fact

that a slice of the carpet was able to be seen between the base of the slot machine

and the front of the sled base of the chair should have put a casino employee on

notice that the chair had become unattached.

Ms. Mock was asked during her testimony about casino employees identifying

unattached sled-based chairs:

Q. So one of the things that – that a casino worker can do to, for
example, identify whether sled-based chairs are attached or not is they
can – they can sort of stand at the end of a row and sort of look down
the row, and if the chairs – the chairs are all lined up, that’s a good
indication they’re all attached?

A. If there’s not a lot of guests or activity on that bank, yes, they
should be able to see them. But if it’s a busy bank and there’s a lot of
guests using the chairs or standing around, they won’t be able to see the
backs of the chairs that well.

When questioned whether an unattached sled-based chair could become a hazard,

she specified that it could become a tripping hazard if pushed out into the middle of

the aisle. However, the distance of the unattached chair from the slot machine and

the busy nature of the casino would affect whether the unattached nature of the chair

would be noticed by a casino employee.

Q. You were asked some questions by Mr. O’Keefe about people’s
ability to look at the backs of these chairs and tell if one of them is
detached.

[Ms. Mock]. Yes, sir.

Q. Is that the case when a chair is – is detached by maybe a foot or
more?

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A. If it’s detached and pulled a foot or more away from the machine
that’s pretty far away from the machine, yes, sir. Again, that would
depend on if the bank is busy and there’s a lot of – a lot of guests, a lot
of people down that bank. I mean, if – if it’s a congested area, you’re
not even going to see the chair, you know.

Q. A foot would be fairly obvious?

A. Uh-huh (yes).

Q. What about like if the – if the chair has been detached but a guest
has scooted it all the way back flush against the slot machine –

A. You’re not going to notice.

Q. -- do you think it would be obvious then?

A. No, sir.

Q. What if it’s detached by one centimeter, do you think it would be
obvious then?

A. No, sir.

We have viewed the video surveillance clips, as well as the still shots from

those video surveillance clips, shown to the jury during trial and introduced into

evidence. Mr. English is correct that if you look very closely, you can see, at times,

about half an inch to an inch of carpet between the base of the slot machine and the

front of the sled base of the chair. We note, however, that the video surveillance was

filmed from above looking down onto the chair and slot machine. We are unable to

speculate what the view would have been from someone simply walking by the chair.

Furthermore, the sliver of carpet between the slot machine and the base of the chair

is only seen when the chair is empty. During the three-hour period that the chair

remained unattached, multiple patrons sat in it to play the slot machine. Furthermore,

the chair is never pushed more than an inch away, at most, from the slot machine.

To a casino employee walking by, in an often-crowded aisle, the unattached chair

would not stand out as being out of line with the rest of the chairs along that aisle.

13

While Ms. Thymes has argued that the casino employee monitoring the video

surveillance that evening should have noticed the unattached nature of the chair, no

evidence or testimony was presented at trial to show (1) whether a casino employee

is actually engaged in monitoring all video surveillance in real time as it is being

filmed, and (2) even if an employee is monitoring the video surveillance in real time,

the amount of video cameras they are responsible for viewing.

Even though the chair remained unattached for approximately three hours

prior to Ms. Thymes’ fall, we cannot find that the jury was unreasonable or clearly

wrong in finding that the Golden Nugget did not have actual or constructive notice

of the unsecured sled-based chair. There is no evidence to suggest that any of the

casino employees failed to exercise reasonable care in their duties the night of the

incident. The jury’s finding is not manifestly erroneous or clearly wrong. Thus, we

find that this assignment of error lacks merit.

Assignment of Error Number 3

Ms. Thymes’ third assignment of error is whether the jury was clearly wrong

in failing to find that the Golden Nugget did not use reasonable care to remove the

danger posed to Ms. Thymes by the sled-based chair. The jury chose not to answer

this question on the verdict form.

In her appellant brief, Ms. Thymes asserts that the evidence is uncontradicted

that the Golden Nugget (1) failed to reasonably identify an unsecured sled-based

chair as an unreasonable safety hazard, (2) failed to train its employees to identify

and correct unsecured sled-based chairs, and (3) failed to develop and implement an

effective inspection program to reasonably discover and correct unsecured sled-

based chairs.

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Ms. Thymes contends that the Golden Nugget failed to assess or investigate

the risk posed to its patrons by unsecured sled-based chairs. Mr. English, Ms.

Thymes’ expert in safety engineering, testified at trial that after the first patron fell

over in an unsecured sled-based chair, the Golden Nugget should have conducted an

investigation to determine the cause of the incident and should have identified

unsecured sled-based chairs as a safety hazard. He further opined that the Golden

Nugget should have then implemented safety programs, training its employees to

conduct safety inspections and recognize when sled-based chairs are unattached.

Ms. Mock, the Golden Nugget’s safety manager, testified that whenever any

incident was reported, such as a patron falling from a chair, the incident was

investigated by the safety department during which they watched surveillance

footage and read through reports and statements. The safety department’s position

continued to be that unsecured sled-based chairs are safe for use by patrons.

According to Ms. Mock, the purpose of attaching sled-based chairs to the slot

machines was to maintain a clean line down the casino aisles, keeping it “nice, clean,

neat, aesthetically pleasing to the eye.” The fact that sled-based chairs could be

attached to the slot machines also meant they could not be moved out into the middle

of the aisle, creating a tripping hazard. The Golden Nugget considers any chairs

moved out of place and into the center of the aisle a safety hazard as patrons could

trip over the chairs. Thus, casino employees are instructed to reposition and reattach

chairs that have been moved away from the slot machines into the aisle.

The issue of whether unsecured sled-based chairs are unreasonably dangerous

to patrons was discussed above under assignment of error number one. For the

reasons previously discussed, we found that the jury could have reasonably

concluded, based on all of the evidence and testimony presented at trial, that an

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unsecured sled-based chair is not unreasonably dangerous. Furthermore, based on

Ms. Mock’s testimony, the jury could have reasonably concluded that the Golden

Nugget did have procedures in place for investigating an incident involving a patron

falling from a chair and identifying and reattaching unattached sled-based chairs.

We further addressed the issue of whether the Golden Nugget employees used

reasonable care to remove the danger posed to Ms. Thymes under assignment of

error number two. For the reasons previously discussed, we found that the jury could

have reasonably concluded, based on all of the evidence and testimony presented at

trial, the Golden Nugget employees used reasonable care when walking the aisles

looking for any potential safety hazards. The unattached nature of the chair at issue

was not obvious as it remained in place before the slot machine on an often-crowded

aisle.

For these reasons, we find no merit in Ms. Thymes’ argument that the jury

should have found the Golden Nugget failed to use reasonable care to remove the

danger posed to casino patrons by the sled-based chair.

The Nature and Extent of Ms. Thymes’ Injuries and Damages

Assignment of Error Number 4

Ms. Thymes’ fourth assignment of error focuses on the injuries she allegedly

sustained as the result of her fall at the Golden Nugget. She asserts in her assignment

of error that the jury was clearly wrong in refusing to find that she was injured in the

fall at the Golden Nugget and in failing to assess damages for past and future medical

expenses, past and future pain and suffering, permanent disability, past and future

mental anguish, and loss of the ability to enjoy life. We note that the jury did check

16

off “No” to this question on the verdict form, finding that Ms. Thymes did not suffer

injuries as a result of the March 4, 2017 incident.

Ms. Thymes claims that prior to the March 4, 2017 fall at the Golden Nugget,

she was in good health with no neck or back pain. As a result of the fall, however,

she claims to have injured her neck and back, consisting of herniated discs at the C4-

5 and C5-6 levels and multiple herniated discs in the lumbar area. Ms. Thymes’

medical treatment for these alleged injuries includes conservative care, physical

therapy, medications, cervical and lumbar epidural steroid injections, two low back

radio infrequency ablations, and a neck surgery consisting of a cervical discectomy

and fusion at the C4-5 and C5-6 levels. Medical testimony and records were

introduced at trial to show that Ms. Thymes went to the emergency room the night

of the incident with complaints of pain in her left leg and lower back. Additional

medical testimony and records were introduced by Ms. Thymes’ physical therapist,

Dr. Gabor Farkas, and orthopedic surgeon, Dr. Kenneth Berliner, detailing her

treatments in the months following the incident.

In their appellee brief, the Golden Nugget addresses multiple inconsistencies

with Ms. Thymes’ testimony and evidence. Ms. Thymes told her medical providers

that she hit her head on the floor when she fell, which contributed to the injuries to

her neck. She repeated this claim when she testified at her deposition prior to trial,

stating that she had viewed the video prior to the deposition and it showed her head

hitting the floor. However, while testifying at trial, Ms. Thymes stated that she had

since watched the video and admitted that it did not show her head hitting the floor.

She believed instead that her head must have hit the rim on the bottom of the chair

behind her. Yet, during cross-examination, Ms. Thymes returned to her claim that

her head hit the floor very hard. The jury was shown several clips from the

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surveillance video, from two different angles, showing Ms. Thymes falling over in

the chair. We note that it is difficult to tell from the video clips what, if anything,

Ms. Thymes’ head hit as she fell. The jury could have reasonably concluded, based

on the way she fell and her changing stories about what she hit while falling, that

Ms. Thymes was not seriously injured.

Additionally, in her petition, filed November 13, 2017, Ms. Thymes alleged

that she sustained injuries to her left wrist and knees. However, when testifying

before the jury in March 2022, Ms. Thymes stated, for the first time, that she was

withdrawing her claims for compensation for any injuries to her knees or to her wrist.

Q. Now, why are you not seeking compensation for your knee or –
your knees or your wrist?

A. Well, previously, I’ve had – I had problems with my knees, and
I had a knee surgery, so to be honestly – to be honest about the situation
with my knees, that’s the reason why I don’t feel that honestly speaking
that – that I should get compensated from when I’ve already had –
honestly had injury and an operation to my knee – surgery to my knee.

This withdrawal of Ms. Thymes’ claim that she injured her knees and wrist in the

fall at the casino, after almost five years of litigation, is another example of an

inconsistency which the jury could have reasonably felt reflected upon Ms. Thymes’

credibility.

Ms. Thymes’ medical records, of which multiple volumes were filed into the

record, are also inconsistent with her claims. According to Ms. Thymes, she was

feeling fine and was healthy prior to her fall at the casino. However, records from

her primary caregiver, Harris Health System-Martin Luther King, Jr. Health Services,

as well as records from her physical therapist, Dr. Farkas, and orthopedic surgeon,

Dr. Berliner, indicate that Ms. Thymes suffered from continuing neck pain, back

pain, and headaches as the result of a 2015 motor vehicle accident. There are also

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references to injuries sustained in a 2013 motor vehicle accident, but those records

no longer exist.

When Ms. Thymes was questioned at trial about notes in her medical records

attributing her neck and back pain to motor vehicle accidents, she insisted that those

notations were errors. The following discussion is one such example.

Q. Okay. Let’s talk about some more of these records that I’m going
to label as erroneous medical records. And let’s go to this one. This is
the Harris Health Systems – oops – February 8th of 2019. Now, of
course this is after you have seen Ariel Lee and she wrote that what she
wrote –

A. Yes, sir.

Q. -- you know on March the 8th. And, of course, this note says here,
“An established patient,” and it says you sustained a posterior neck
injury in an MVA ago.

A. Uh-huh (yes).

Q. “MVA ago.” It does not say how long ago. But did you sustain a
posterior neck injury in the MVA, or were you trying to convey this
was another fall issue?

A. No. I never state – once again, I never said anything about a
motor vehicle accident.

Q. Okay.

A. I don’t – I don’t know how that kept coming up in the record.

Another example of alleged “errors” in Ms. Thymes’ medical records was discussed

during her cross-examination, in reference to Dr. Berliner’s records, her orthopedic

surgeon.

Q. Back when I took your deposition in 2019, you were asked
directly if you had had a motor vehicle accident in 2013. And during
that deposition, you denied recollection of a 2013 motor vehicle
accident.

A. Uh-huh (yes).

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Q. As we stand here today at trial, do you recall being involved in a
2013 motor vehicle accident?

A. No, sir. I do not recall being in a 2013 accident at all.

Q. Okay.

A. I don’t recall that at all.

Mr. Beasley:

Deven, can we see D-19, page 4?

By Mr. Beasley:

Q. Do you see towards the bottom of the screen, Ms. Thymes, it says,
“PMH, she states she had a previous MVA from 2013 which resulted
in neck pain but states her pain had subsided prior to March 4, 2017.”

A. Mr. Beasley, to be honest with you, I don’t recall that at all. I – I
have not had – had an accident in 2013 that I can actually be honest to
you about at this time. I – I know I didn’t – I don’t recall being in an
accident. 2015, yes, sir, Mr. Beasley, I was in a motor vehicle – motor
vehicle accident but not 2013. I don’t even know – I can’t attest to any
of that.

Q. So we’ve discovered yet another mistake in your certified
medical records?

A. It had to be, because I have – I have no recollection of being in a
motor vehicle accident in the – in the year of 2013.

Despite Ms. Thymes not remembering being in a motor vehicle accident in 2013, Dr.

Farkas, Ms. Thymes’ chiropractor, testified that he did treat Ms. Thymes in 2013 for

low back pain. Again, these inconsistencies reflect upon Ms. Thymes’ credibility.

Based on the inconsistencies in the testimony and medical records, added to

Ms. Thymes’ decision to suddenly withdraw certain claims at trial, we cannot find

that the jury was unreasonable in concluding that Ms. Thymes was not injured in her

fall at the Golden Nugget. The jury’s finding is not manifestly erroneous or clearly

wrong. We note that even if the jury had found that some or all of Ms. Thymes’

injuries resulted from her March 2017 fall at the casino, which we are not suggesting,

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the jury concluded that the Golden Nugget did not have actual or constructive

knowledge of the unsecured sled-based chair; thus, the Golden Nugget would not be

liable for any injuries Ms. Thymes may have sustained. For these reasons, we find

this assignment of error lacks merit.

DECREE

For the foregoing reasons, the March 18, 2022 judgment of the trial court

making the March 10, 2022 jury verdict a judgment of the court and dismissing Janet

Thymes’ claims against the Golden Nugget Lake Charles, LLC is affirmed. All costs

of this appeal are assessed to appellant, Janet Thymes.

AFFIRMED.

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