Brosset v. Grand Casinos of Louisiana, (1998)

• Court: Tunica-Biloxi Tribal Court
• Writing for the Court: JUDGE KATHRYN FOWLER VAN HOOF
• Decision Date: 27 May 1998
• Docket Number: 95-002
• Citation: Brosset v. Grand Casinos of Louisiana (Tunica-Biloxi Tribal Ct. 1998)
• Parties: DIANE BROSSET, INDIVIDUALLY AND ON BEHALF OF DEIDRA RACHAL v. GRAND CASINOS OF LOUISIANA

DIANE BROSSET, INDIVIDUALLY AND ON BEHALF OF DEIDRA RACHAL v. GRAND CASINOS OF LOUISIANA

No. 95-002

Tunica-Biloxi Tribal Court Tunica-Biloxi Nation

May 27, 1998

JUDGMENT

JUDGE KATHRYN FOWLER VAN HOOF

FOR ORAL REASONS ASSIGNED in Open Court on June 10, 1997, it is ORDERED, ADJUDGED AND DECREED that the claim of petitioner DIANE BROSSET, INDIVIDUALLY AND ON BEHALF OF DEIDRA RACHAL be and it is hereby dismissed, with prejudice, each party to pay its own costs.

JUDGMENT RENDERED AND SIGNED this 10th day of June, 1997 at Marksville, Louisiana.

KATHRYN FOWLER VAN HOOF Tribal Judge

TUNICA-BILOXI TRIBAL COURT OF APPEAL STATE OF LOUISIANA

DECISION

dela Houssaye, Chief Judge

This is a slip and fall case. Plaintiff-Appellant DIANE BROSSET individually and on behalf of DEIDRA RACHAL, brought this appeal from an adverse judgment of the Tribal Trial Court dated June 10, 1997. Defendants-Appellees are the TUNICA-BILOXI INDIANS OF LOUISIANA (The parties stipulated that the Tunica-Biloxi Indians of Louisiana own and operate the entity known as Grand Casino Avoyelles, and thus, the Tunica-Biloxi Indians of Louisiana were the proper party defendant in this action.)

For the following reasons, we affirm that judgment.

The facts of this case are not seriously disputed. As reflected in the Pre-trial order, the parties stipulated that:

(1) The Tunica-Biloxi Indians of Louisiana own and operate the enterprise known as Grand Casino Avoyelles (on the reservation in Marksville, Louisiana.)

(2) The plaintiff Diane Brosset, slipped and fell on the casino premises on or about August 30, 1994.

(3) On or approximately around the date of the plaintiff's alleged accident and injury the casino served approximately 6900 guests per day.

(4) The total square footage of Grand Casino Avoyelles comprises approximately 103,000 square feet.

(5) The issue of liability and damages will be bifurcated for trial.

The case arises out of a slip and fall occurring at the gaming facility commonly known as "Grand Casino Avoyelles" on August 30, 1994.

Plaintiff and a friend went to the Casino on the night in question. After gambling for awhile, the two ladies went into the eating/lounge area known as Roxie's where they sat down and ate and drank for approximately one hour. While the plaintiff was enjoying her meal, casino personnel began stripping, cleaning and waxing the tile floor surface near where the plaintiff was seated. While seated, several gentlemen joined the two ladies at an adjoining table.

(1)When plaintiff and her friend decided to leave Roxie's, they did not exit through the same way they had entered because plaintiff said it was blocked. They chose to exit through an area near where they had been seated. The exit path chosen by plaintiff was barricaded, to prevent patrons from encountering a freshly waxed/stripped tile floor. There is no dispute that casino employees had put up straps or ropes linked by poles to serve as a barricade keeping people out of the wet tile area. In her testimony, plaintiff admits that there was a barricade in her path, and she actually unhooked it and walked through it. Thereafter, she slipped and fell on the wet floor. Casino employees had also placed two (2) wet floor signs on the wet floor at each entrance to Roxie's.

At the conclusion of the trial, the Tribal Trial Judge, ruled from the bench in favor of the Tribe, for oral reasons assigned. The Judge carefully reviewed the testimony of all witnesses, and evaluated their credibility, and found that the most credible evidence supported a finding that the tribe used reasonable care in protecting the plaintiff from any risk of harm which the wet floor presented by placing warning signs at each entrance to the lounge and by erecting barricades to seal off the hazardous area. The judge found that the plaintiff ignored the barricade and unhooked and proceeded through it at her own risk, and was injured because of that when there was another safer way to proceed and exit out of the lounge area.

LAW and HOLDING

The threshold question presented to the Court in this case is "what is the applicable standard or scope of appellate review?"

The Code of Justice, Tunica-Biloxi Indians of Louisiana (C.J.:TBIOL), do not provide specifically for a standard or scope of appellate review.

However the Tunica-Biloxi Code of Civil Procedure (TB - C.C.P.) provides, in Article 1, that:

"In all civil cases, the Tunica-Biloxi Tribal Court shall apply the Constitution of the United States, federal statutes and regulations, the Charter of 1974, resolutions and ordinances of the Tunica-Biloxi Tribal Court, and to the extent where it does not conflict with the above, the laws and jurisprudence of the State of Louisiana. Art. 1, T.B.-C.C.P.

Thus, in the absence of a specific statute, ordinance or regulations, the Tunica-Biloxi Courts are directed to use the above laws, as surrogate tribal laws. In the Courts of the United State, the standard of review, or scope, is set forth in the Federal Rules of Civil Procedure as:

(a) "In all actions tried upon the fact without a jury or with an advisory jury, the Court shall find the fact specifically and state separately its conclusions of law thereon and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the Court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its actions. Requests for findings are not necessary for purposes of review. Findings of fact whether based on oral or documentary evidence shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Rule 5.2, Federal Rules of Civil Procedure (emphasis supplied)

Likewise in the State of Louisiana, although Louisiana Appellate Courts are constitutionally mandated to review facts, the applicable standard of review in the...