Caldwell v. Grand Casinos of Lousiana, Inc., (2002)

• Court: Tunica-Biloxi Tribal Court
• Writing for the Court: BIENVENU, ASSOCIATE JUDGE
• Decision Date: 15 November 2002
• Docket Number: 2000-0102
• Citation: Caldwell v. Grand Casinos of Lousiana, Inc. (Tunica-Biloxi Tribal Ct. 2002)
• Parties: FRAN CALDWELL AND EDMOND CALDWELL PLAINTIFFS-APPELLANTS v. GRAND CASINOS OF LOUISIANA, INC. - TUNICA-BILOXI, D/B/A GRAND CASINO AVOYELLES AND TIG INSURANCE COMPANY DEFENDANTS-APPELLEES

FRAN CALDWELL AND EDMOND CALDWELL PLAINTIFFS-APPELLANTS v. GRAND CASINOS OF LOUISIANA, INC. - TUNICA-BILOXI, D/B/A GRAND CASINO AVOYELLES AND TIG INSURANCE COMPANY DEFENDANTS-APPELLEES

No. 2000-0102

Tunica-Biloxi Tribal Court Tunica-Biloxi Nation

November 15, 2002

DECISION

BIENVENU, ASSOCIATE JUDGE

FACTS:

Plaintiffs FRAN and EDMOND CALDWELL, brought this action for personal injuries as to her and loss of consortium as to him, as a result of a slip and fall by her on the floor of the defendant's casino restaurant on Thanksgiving morning November 26, 1998. The couple was celebrating their 56th wedding anniversary on the day the accident occurred. They had come from their home in Garland, Texas the previous day gambled at the casino, ate their evening meal at the restaurant, Marceline's, slept at the casino hotel, and had come to breakfast at the restaurant that morning. The Caldwells were both elderly and retired, he being 82 years old at the time and a former real estate agent and she being 77 years old at the time and a former schoolteacher.

The Caldwells had just entered the restaurant and were going to their table, when she slipped and fell. Plaintiffs claim that the cause of the fall was water on the floor, while defendants deny the existence of water or any other foreign substance on the floor at the time of the accident. After a trial on the merits, the trial judge, in written reasons for judgment, held that plaintiffs had not proven their case by a preponderance of the evidence, and accordingly entered judgment for the defendants, from which plaintiffs bring this appeal.

There were five eyewitnesses to the incident, including both plaintiffs who claim there was water on the floor. Amitria Barron and Stefanie Lacombe, both restaurant employees of defendant, saw Mrs. Caldwell slip and fall. Both immediately went to the scene and her aid, both looked closely for a cause of the fall and saw nothing, specifically testifying that they saw no water. Dorothy Jane Zullo, the only eyewitness who can be said to be disinterested, was a customer in the restaurant. She heard Mr. Caldwell say "There's water on the floor", she looked, saw no water, and specifically testified that Mrs. Caldwell did not slip on anything wet. It is significant that Mrs. Zullo testified that she had walked where Mrs. Caldwell walked and slipped, approximately two minutes before. Two other employees of defendant, Kenneth J. Mayeaux, a busser, and Paul Jarrell, the general manager of the restaurant, did not actually see the fall but saw Mrs. Caldwell on the floor immediately afterward and came directly to the scene, looking for and observing nothing on the floor which could have caused the fall. It was stipulated that if Melissa Cazelot, defendant's emergency medical technician, had testified, she would have testified that she did not observe any moisture on Mrs. Caldwell's clothing, despite Mrs. Caldwell's testimony to the contrary. Christopher Paul Miller, a security officer for defendant, was notified of the accident and arrived shortly afterward and found Mrs. Caldwell sitting in a chair at a table near where the fall had occurred. He testified that he saw mostly female employees wiping the floor, which is denied by all of defendant's employees who were asked. Mrs. Zullo testified that a "guy" from the restaurant was wiping the floor, but that he said he saw no water. Mr. Miller testified that he saw water on the floor, and specifically a trail of drops. Mr. Miller, pursuant to his duties, prepared an incident report to such effect.

Defendant's employees who testified gave consistent and extensive testimony of their safety training, their training to detect and handle spills, and of the procedure in place should there be any foreign substances on the floor of the restaurant. Basically, an employee discovering a spill or foreign substance, is instructed to stand at the location of the condition, summon another employee to bring a wet floor sign to the location, and immediately take steps to remove the hazardous condition. This testimony was not refuted. APPLICABLE LAW:

The Code of Justice, Tunica-Biloxi Indians of Louisiana (C.J.:TBIOL), does not provide for the law to be applied in the instant case. The TunicaBiloxi Code of Civil Procedure (TB-C.C.P.) does provide in art. 1, however, 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."

There is nothing in the Constitution of the United States, federal statutes and regulations, the Charter of 1974, resolutions and ordinances of the TunicaBiloxi Tribal Court, which applies to slip and fall cases such as this, and since it does not conflict with the same, this court has chosen to apply the laws of the State of Louisiana, and specifically LSA - R. S. 9:2800.6, which provides:

"Burden of proof in claims against merchants.

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in 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 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...