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

• Court: Tunica-Biloxi Tribal Court
• Decision Date: 15 August 2002
• Docket Number: 2000-0102
• Citation: Caldwell v. Grand Casinos of Louisiana, Inc. (Tunica-Biloxi Tribal Ct. 2002)
• Parties: FRAN CALDWELL AND EDMOND CALDWELL v. GRAND CASINOS OF LOUISIANA, INC. TUNICA-BILOXI INDIANS OF LOUISIANA D/B/A GRAND CASINO AVOYELLES

FRAN CALDWELL AND EDMOND CALDWELL v. GRAND CASINOS OF LOUISIANA, INC. TUNICA-BILOXI INDIANS OF LOUISIANA D/B/A GRAND CASINO AVOYELLES

No. 2000-0102

Tribal Court Tunica-Biloxi Indians State of Louisiana

August 15, 2002

Appearing were:

Leonard Cardenas , counsel for the plaintiffs:

REASONS FOR JUDGMENT

Fran and Edmond Caldwell, husband and wife, bring this action for personal injuries, medical expenses, loss of consortium and other damages as a result of a fall sustained by Ms Caldwell in Marcelene's Restaurant, Grand Casino on November 26 1999. They allege specifically that the fall was caused by a foreign substance on the floor of the restaurant, and complain that defendant was negligent including but not limited to failure to maintain proper inspection procedures and to warn against the risk of a fall.

At the time of this incident they were retired, he from his occupation as a salesman and she after 31 years as a school teacher. She was 77 years old and her husband was 82. Since retirement they had spent time traveling within the limits of their budget. He received social security and she teachers retirement. It must be assumed that they also had some savings or investments but this was not disclosed.

They were at the Grand Casino for their second visit, on a trip celebrating their 56th anniversary. They had spent a night at the casinos in Shreveport and arrived at the Grand casino hotel on November 25th. They gambled that night and spent the night in the hotel. The next morning, November 26th, they went down to Marceline's restaurant for breakfast and on approaching their table, Fran Caldwell fell. She claims that the fall was caused by a wet floor and brings this action for damages. Edmund Caldwell, who died December 1, 2000, joined in a claim for loss of consortium.

The Caldwells testified that they were planning a more extended trip through Galveston and Houston and then back home. Following the incident they checked with the Casino Hotel to see if they could spend another night, but no rooms were available. They checked out and returned home with an overnight stop in Shreveport.

Plaintiffs must prove their case by a preponderance of evidence. Here follows a summary of the evidence.

Dorothy Zullo was an eyewitness to the fall. She did not know Ms Caldwell. She was sitting at a table across the aisle from the table Ms. Caldwell was approaching, facing Ms. Caldwell's table. She saw Ms Caldwell's feet come together and Ms Caldwell fall over "laterally" on her left side, bracing with her left arm. Her testimony by deposition is that there was no water on the floor. She was eating a food she had served herself from the food bar. Ms Zullo was facing the aisle. She testified by deposition that immediately after the fall restaurant employees began wiping the floor saying "where's the water" but she declared that there was actually no water. Ms Caldwell was helped up by restaurant employees and seated on a chair opposite Ms Zullo. Ms Zullo testified that she was in a party of four but none of her companions witnesses the incident because they were away from the table apparently serving themselves.

In the course of Ms Zullo's cross examination, plaintiffs's attorney stated that his investigator took a statement from one of her companions, Brenda Chiapetta. He stated that Mr. Chiapetta seemed to recall there being water on the floor. However plaintiffs failed to produce this witness or to give a reason for the failure to do so.

Ms Zullo said that restaurant personnel went to Ms. Caldwell immediately after the fall and helped her to a chair. Mr. Caldwell was following several feet behind. She testified that Mr. Caldwell did not kneel on the floor but went from table to table looking for witnesses. He did not ask Ms Zullo what she saw but she gave him her name.

Imitria Barron, a waitress at Marcelenes, witnessed the fall. She saw Ms Caldwell's feet come out from under her and immediately went to assist her. Ms. Barron insists that there was no water on the floor and denied wiping the floor.

Steffie Lacombe, another employee, said she saw the fall. She was about ten feet away at the time and went immediately to assist. Ms. Caldwell told her that she hurt her hip. Ms. Lacombe insists that she looked for any problem and there was no water on the floor. Kenny Mayeux, another employee, did not see her fall but saw her down. He said she complained of water on the floor but that he examined the floor and there was no water. (In Ms. Caldwell's testimony on trial she said she did not notice any liquid, that she doesn't remember much about the incident.)

Shortly after the fall on November 26, 1998, Christopher Miller, a security guard employed by the Casino, arrived to make an investigation. He saw a trail of drops of water on the floor and employees wiping the floor area. The water was in spots about the size of the head of a pencil and spaced in a line about three inches apart. He made a photograph of the area which disclosed nothing. It could be that the water was present but that the photograph was inadequate to disclose it. He concluded that there was water on the floor. At the time of his arrival there were a number of restaurant employees assisting the Caldwells and wiping the floor

Another eye witness to the fall was Ms. Caldwell's husband, Edmund, who is a party plaintiff to this case. He died in early December 2000, but his deposition had been taken and was introduced at the trial. He was following his wife a few feet behind and saw her fall. He said her feet slipped out from under her and she fell on her left side. He said there was water on the floor but was vague as to the nature and size of the collection. He, being a party, was not a disinterested witness.

The Court is further concerned that at page 24 of the deposition Mr. Caldwell was asked if his wife had trouble with her back or right leg prior to the accident and his answer was "none, none whatsoever" when he certainly should have know that she injured herself on November 7, 1999 less than three weeks before, while gardening and doing yard work. This brings his credibility into question. If she was wet or if there was water under her, the Court can only speculate as to the source. It may not have been there...