Louisiana Case Law
DAVIS v. CHARLES, L.L.C., 06-1023 (La.App. 3 Cir. 12-13-06)
CAREY DAVIS v. HARRAH’S LAKE CHARLES, L.L.C., AKA PLAYERS
LAKE CHARLES, L.L.C., ET AL. 06-1023. Court of Appeal of Louisiana, Third Circuit. December 13, 2006.
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2002-2818 HONORABLE
DAVID RITCHIE, DISTRICT JUDGE, JAMES T. GENOVESE, JUDGE.
Robert J. Williams, Robert J. Williams, LLC, Lake Charles,
Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT: Carey Davis.
Michael J. McNulty, III, Lake Charles, Louisiana, COUNSEL
FOR DEFENDANT/APPELLEE: Harrah’s Lake Charles, L.L.C.
Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES
T. GENOVESE, Judges.
AFFIRMED.
GENOVESE, Judge.
Cooks, J., concurs in the result only.
In this slip and fall case on outside stairs of a casino
boat, Plaintiff, Carey Davis (Davis), appeals the jury
verdict in favor of Defendant boatowner, Harrah’s Lake
Charles, L.L.C. (Harrah’s), finding that the stairwell did
not present an unreasonable risk of harm. Davis also
appeals the denial of his motion for judgment
notwithstanding the verdict (JNOV) and/or motion for new
trial. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Davis testified that on the evening of Saturday, June 9,
2001, just before midnight, he received a telephone call
from his mother informing him that she, his sister, and his
aunts were going out to eat and wanted him to meet them at
the casino. It had rained that evening. Davis stated that
he assumed they were at Harrah’s, so he went there to meet
them. Davis further testified that when he arrived at
Harrah’s, he decided to call his friend, who worked at
Harrah’s, to ask whether she had seen his family members in
the casino’s buffet area. However, when he tried to make
the cellular telephone call, he could not receive a
cellular signal. He then decided to go onto the boat.
Instead of going into the casino, he stated that he walked
outside to the bow, or front of the boat, in an effort to
get a cellular signal. Davis testified that he then walked
up two flights of stairs and was finally able to call his
friend upon reaching the second level. After successfully
completing his cellular telephone call, Davis testified
that he attempted to enter the casino through the doors
located on the second floor, but that the doors would not
open. Davis stated that he then proceeded to descend the
same stairs that he had earlier ascended. Davis testified
that he slipped and fell down to the first landing, which
separated two fights of stairs, and that he did not hurt
himself as a result of this fall. Davis further testified
that he got up and looked to see if he slipped on
something; however, aside from the stairs being wet because
it had rained earlier that day, he saw nothing. With
cellular telephone in hand, Davis stated that he then
grabbed the handrail and proceeded to descend the final
level of stairs. Davis testified that he slipped and fell a
second time, this time losing his cellular telephone and
landing at the bottom of the stairs on the ground level at
the bow of the boat. Davis further testified that two
people, the captain and a deckhand, witnessed his second
fall. Davis stated that because he did not notice any
broken bones, he refused medical treatment and, after an
accident report was prepared, he went home without ever
finding his mother and other relatives. Davis also
testified that the following morning he began experiencing
pain in his neck and back which prompted him to seek
treatment at St. Patrick Hospital’s emergency room in Lake
Charles, Louisiana.
On June 7, 2002, Davis filed suit against Harrah’s,
alleging that he suffered injuries on June 9, 2001 while
descending stairs aboard Harrah’s river boat casino, Star,
in Lake Charles, Louisiana. In his petition, Davis alleges,
in pertinent part, that “[he] was a patron aboard the
vessel Star, owned and operated by [D]efendants herein,
when suddenly and without warning, he slipped and fell down
a flight(s) of stairs (due to the slippery condition of
said stairs) causing injuries and damages.” Davis further
alleges that he slipped and fell twice while descending the
stairs. Additionally, Davis alleges that the accident was
due to the negligence and/or strict liability of Harrah’s in
“leaving or allowing said stairs to remain in a slippery
condition and not taking precautions to safeguard patrons
in the area. . . .”
A jury trial was held from November 29 through December 2,
2005. At the conclusion of the trial, the jury returned a
verdict in favor of Harrah’s finding that the stairs in
question did not present an unreasonable risk of harm to
its patrons. A judgment pursuant to the jury verdict was
signed on January 5, 2006. On March 3, 2006, the trial
court denied Davis’s motion for JNOV and, in the
alternative, motion for new trial. Davis appeals.
ASSIGNMENTS OF ERROR
In his two assignments of error, Davis asserts that the
trial court erred in denying his motion for JNOV, or
alternatively, in denying his motion for a new trial.
LAW AND DISCUSSION
Louisiana Civil Code Article 2317 provides in part: “We
are responsible, not only for the damage occasioned by our
own act, but for that which is caused by . . . the things
which we have in our custody. This however, is to be
understood with the following modifications.” Louisiana
Civil Code Article 2317.1 provides:
The owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only upon
a showing that he knew or, in the exercise of reasonable
care, should have known of the ruin, 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. Nothing in this
Article shall preclude the court from the application of
the doctrine of res ipsa loquitur in an appropriate case.
To recover for damages under the provisions of La.Civ. Code
art. 2317.1, a plaintiff must prove “(1) the thing was in
the defendant’s custody and control; (2) the thing
contained a defect which presented an unreasonable risk of
harm to others; and (3) the defendant knew or should have
known of the defect.” Roberson v. Lafayette Oilman’s
Sporting Clays Shoot, Inc., 05-1285, p. 5 (La.App. 3 Cir.
4/12/06), 928 So.2d 703, 705-06, writ denied, 06-1120 (La.
9/1/06), 936 So.2d 206 (emphasis added).
Judgment Notwithstanding the Verdict (JNOV)
Louisiana Code of Civil Procedure Article 1811[fn1]
provides for the use of a motion for JNOV. The criteria
applicable to our review of the denial of Davis’s motion
for JNOV was set forth by the Louisiana Supreme Court in
Peterson v. Gibraltar Sav. and Loan, 98-1601, pp. 5-6 (La.
1999), 733 So.2d 1198, 1203:
JNOV is warranted only when the facts and inferences,
viewed in the light most favorable to the party opposing
the motion, is so strongly and overwhelmingly in favor of
the moving party that reasonable men could not arrive at a
contrary verdict; the motion should be granted only when
evidence points so strongly in favor of the moving party
that reasonable men could not reach different conclusions,
not merely when there is a preponderance of evidence for
the mover. Anderson v. New Orleans Public Service, Inc.,
583 So.2d. 829 (La. 1991); Scott v. Hospital Service
District No. 1, 496 So.2d 270 (La. 1986). Refusal to
render a judgment notwithstanding the verdict (JNOV) can
only be overturned if it is manifestly erroneous. Delaney
v. Whitney National Bank, 96-2144, 97-254 (La.App. 4 Cir.
11/12/97), 703 So.2d 709[,] writ denied, 98-213 (La.
3/20/98), 715 So.2d 1211.
Therefore, the standard governing our review of the trial
court’s denial of Davis’s motion for JNOV is that of
manifest error. Id.
Whether Harrah’s exposed its patrons to an unreasonable
risk of injury or harm is a question of law to which the
jury answered “no.” Davis filed a motion for JNOV claiming
that the jury’s decision was against the law and the
evidence. Davis contends that the jury erred by failing to
find that the stairs in question presented an unreasonable
risk of harm. Davis further contends that the trial court
erred in refusing to grant his motions for JNOV, or in the
alternative, a new trial.
After a thorough review of the record, we find that the
trial court did not err in denying the motion for JNOV. The
jury’s verdict was reasonable in light of the evidence
presented at trial. We find that the record contains
sufficient evidence to support the jury’s verdict and the
trial court’s denial of Davis’s motion for JNOV.
Davis contends that the testimony of his expert, Jason
English (English), was uncontradicted and, if accepted as
true, reasonable minds could not differ in reaching the
conclusion that Harrah’s was negligent. English was
accepted by the court as an expert in the area of safety
engineering. In summary, English opined that the stairs at
issue were unreasonably dangerous due to their short and
inconsistent tread depths. English testified that the
stairs at issue were not in compliance with standards for
vessels set forth by the United States Coast Guard (Coast
Guard) because the tread depths for the stairs in question
were shorter than those required; thus, a person traversing
those stairs would be exposed to an unreasonable risk of
harm. Davis also contends that English’s testimony was
uncontradicted since Harrah’s expert, Eric Houin (Houin),
simply offered his opinion that the stairs were not against
the Coast Guard’s accepted standards and Houin failed to
offer any supportive documentation.
Houin, Harrah’s expert, was accepted by the court as an
expert in the field of ship design, ladder safety, and
naval engineering. Houin testified that prior to a vessel
being allowed to set sail, stairwell plans must be provided
to the Coast Guard for approval. Houin testified that the
stairs in question were accepted and/or approved by the
Coast Guard upon its inspection and approval of the initial
plans for the vessel. Hence, Houin contends that English’s
opinion that the stairs were not in compliance with coast
guard regulations was wrong. Houin testified that the
stairs incorporated non-skid Wooster steps which contain an
abrasive surface. Houin testified that the stairs contained
handrails which assist in balance, provide support, and
serve to prevent injury. Houin opined that the stairwells,
or the incline ladders when referring to vessels, meet
Coast Guard regulations because the Coast Guard approved
the stairs when the vessel’s plan were initially presented
to the Coast Guard prior to the vessel’s commencement of
operations. Houin opined that Davis’s fall occurred simply
because of Davis’s failure to use ordinary care while
descending the stairs. Thus, the experts have rendered
conflicting testimony and opinions.
Harrah’s presented the testimony of Captain Danny Jones
(Captain Jones). Captain Jones testified at trial that he
worked for Harrah’s for eight years during which time the
Coast Guard had never cited Harrah’s for a safety violation
with respect to the stairs in question. Further, Captain
Jones testified that there were no other accidents on the
stairs.
Harrah’s presented the testimony of Chief Engineer Roy
Ellison (Ellison). Ellison testified at trial that he
worked for Harrah’s for six years, and he was near the
stairs in question when Davis landed at the bottom of the
stairs on the ground level at the bow of the boat. He
stated that he first heard Davis’s cellular telephone hit
the deck, or ground, before he saw Davis laying on the
ground at the bottom of the stairs. Ellison further
testified that he personally traversed the stairs ten or
twelve times a week and never encountered a problem.
Finally, Harrah’s deckhand, Mac Lestrappes (Lestrappes),
testified at trial that he worked for Harrah’s for nine
years. Lestrappes testified that one of his
responsibilities as a deckhand was to paint the stairs
aboard the boat and cover the wet paint with sand to ensure
that the stairs were not slippery.
In ruling on Davis’s motion for JNOV, the trial court was
required to determine whether the evidence viewed in the
light most favorable to Harrah’s pointed so strongly and
overwhelmingly in favor of Davis that reasonable persons
could not arrive at a contrary verdict on the issue of
whether Harrah’s engaged in negligent conduct, and whether
the stairs at issue were an unreasonably dangerous
condition or created an unreasonable risk of harm. The
trial court, in its oral reasons for denying Davis’s motion
for JNOV, stated that “if there’s any evidence at all that
the jury could have used to make their decision, then I
can’t — you know, I can’t undo what they’ve done, or
I can’t substitute my judgment for theirs. And I think
that’s where I am at this point.” We agree. Given the
testimony and other evidence presented herein, there was a
reasonable basis for the jury’s finding, and we are not
convinced that reasonable persons could not arrive at any
verdict other than one in favor of Davis. We further
recognize that the trier of fact is in the best position to
assess the demeanor and judge the credibility of witnesses
when there is conflicting testimony. Robin v. Allstate Ins.
Co., 03-1009, 03-926 (La.App. 3 Cir. 3/24/04), 870 So.2d
402, writ denied, 04-1383 (La. 9/24/04), 882 So.2d 1143
(citing Rosell v. ESCO, 549 So.2d 840 (La. 1989)). Thus, we
find that the trial court’s denial of Davis’s motion for
JNOV was not manifestly erroneous.
Motion for New Trial
Louisiana Code of Civil Procedure Article 1972(1) provides,
in pertinent part, that “[a] new trial shall be granted,
upon contradictory motion of any party . . . [w]hen the
verdict or judgment appears clearly contrary to the law and
the evidence.” This court stated in Williams v. W.O. Moss
Regional Medical Center, 05-022, pp. 4-5 (La.App. 3 Cir.
6/1/05), 903 So.2d 1150, 1153-54:
The applicable standard of review in ruling on a motion
for new trial is whether the trial court abused its
discretion.” Martin [v. Heritage Manor South Nursing Home,
00-1023 (La. 4/3/01)], 784 So.2d 627. In order to apply
this standard, “[w]e are faced with the balancing of two
very important concepts: the great deference given to
the jury in its fact finding role and the great discretion
given to the trial court in deciding whether to grant a
new trial.” Davis v. Wal-Mart Stores, Inc., 00-445, pp.
11-12 (La. 11/28/00), 774 So.2d 84, 93-94. Though the
“[trial] court has much discretion [in determining whether
to grant a new trial] . . . ., this court will not
hesitate to set aside the ruling of the trial judge in a
case of manifest abuse.” Lamb v. Lamb, 430 So.2d 51, 53
(La. 1983). Thus, although “[t]he scales are clearly
tilted in favor of the survival of the jury’s verdict, the
trial court is left with a breadth of discretion which
varies with the facts and events of each case.” Davis,
774 So.2d at 94.
The Louisiana Supreme Court stated in Martin, 784 So.2d
at 637, “[A] jury verdict cannot be set aside on that
[sic] the grounds that the verdict is contrary to the
evidence if it is supportable by any fair interpretation
of the evidence.” This is a case in which there was a
dispute among the experts as to whether the defendants
breached the applicable standard of care. “It is the duty
of the jury to evaluate the credibility of each witness,
and come to conclusions as to the facts based on these
evaluations.” Campbell v. Tork, Inc., 03-1341, p. 11 (La.
2/20/04), 870 So.2d 968, 975.
Our review of the record supports the jury’s determination
that the stairs did not present an unreasonable risk of
harm. While a trial court does have discretion in granting
a new trial, and is entitled to draw its own inferences and
conclusions from the evidence as well as evaluate the
credibility of the witnesses, the trial court may not
interfere with a jury verdict with which it simply
disagrees when that verdict is based on a fair
interpretation of the evidence. Williams, 903 So.2d 1150.
In this case, the jury heard substantial testimony to lead
it to conclude that the stairs in question did not present
an unreasonable risk of harm. We find the jury’s verdict is
clearly supportable by a fair interpretation of the
evidence; therefore, we find no abuse of discretion in the
trial court’s denial of Davis’s motion for a new trial.
DECREE
The judgment of the trial court denying Davis’s motion for
JNOV and/or motion for new trial is affirmed. Costs of this
appeal are assessed against Plaintiff/Appellant, Carey
Davis.
AFFIRMED.
[fn1] Louisiana Code of Civil Procedure Article 1811
provides:
A. (1) Not later than seven days, exclusive of legal
holidays, after the clerk has mailed or the sheriff has
served the notice of judgment under Article 1913, a party
may move for a judgment notwithstanding the verdict. If a
verdict was not returned, a party may move for a judgment
notwithstanding the verdict not later than seven days,
exclusive of legal holidays, after the jury was
discharged.
(2) A motion for a new trial may be joined with this
motion, or a new trial may be prayed for in the
alternative. B. If a verdict was returned the court may
allow the judgment to stand or may reopen the judgment and
either order a new trial or render a judgment
notwithstanding the verdict. If no verdict was returned,
the court may render a judgment or order a new trial.
C. (1) If the motion for a judgment notwithstanding the
verdict is granted, the court shall also rule on the
motion for a new trial, if any, by determining whether it
should be granted if the judgment is thereafter vacated or
reversed and shall specify the grounds for granting or
denying the motion for a new trial. If the motion for a
new trial is thus conditionally granted, the order thereon
does not affect the finality of the judgment.
(2) If the motion for a new trial has been conditionally
granted and the judgment is reversed on appeal, the new
trial shall proceed unless the appellate court orders
otherwise.
(3) If the motion for a new trial has been conditionally
denied and the judgment is reversed on appeal, subsequent
proceedings shall be in accordance with the order of the
appellate court.
D. The party whose verdict has been set aside on a motion
for a judgment notwithstanding the verdict may move for a
new trial pursuant to Articles 1972 and 1973. The motion
for a new trial shall be filed no later than seven days,
exclusive of legal holidays, after the clerk has mailed or
the sheriff has served the notice of the signing of the
judgment notwithstanding the verdict under Article 1913.
The motion shall be served pursuant to Articles 1976 and
1314.
E. If the motion for a judgment notwithstanding the
verdict is denied, the party who prevailed on that motion
may, as appellee, assert grounds entitling him to a new
trial in the event the appellate court concludes that the
trial court erred in denying the motion for a judgment
notwithstanding the verdict. If the appellate court
reverses the judgment, nothing in this Article precludes
the court from determining that the appellee is entitled
to a new trial or from directing the trial court to
determine whether a new trial shall be granted.
F. The motion for a judgment notwithstanding the verdict
may be granted on the issue of liability or on the issue
of damages or on both issues.