Gray v. Louisiana Downs

• Decision Date: 21 August 1991
• Docket Number: No. 22638-CA,22638-CA
• Citation: 585 So.2d 1238
• Parties: Gertrude E. GRAY, et vir., Plaintiffs, v. LOUISIANA DOWNS, et al., Defendants. 585 So.2d 1238
• Court: Court of Appeal of Louisiana — District of US

Page 1238

585 So.2d 1238

Gertrude E. GRAY, et vir., Plaintiffs, v. LOUISIANA DOWNS, et al., Defendants.

No. 22638-CA.

585 So.2d 1238

Court of Appeal of Louisiana, Second Circuit.

Aug. 21, 1991.

Roland V. McKneely, Jr., Bossier City, for plaintiffs-appellants.

Lunn, Irion, Johnson, Salley & Carlisle by Charles W. Salley, Shreveport, for defendants-appellees.

Before HIGHTOWER, VICTORY and BROWN, JJ.

HIGHTOWER, Judge.

This is an appeal from a judgment rejecting demands arising from a slip and fall accident at a thoroughbred racing track. We reverse, apportion fault, and award damages.

FACTS

On Thursday afternoon, November 3, 1988, Gertrude E. Gray ("plaintiff") and her husband attended the horse races at Louisiana Downs. The track is owned by Louisiana Downs, Inc., which operates all concession stands located inside the facility and is responsible for the maintenance and cleanup of the buildings and grounds. Another entity, Red River Downs, Inc., conducted the actual racing events on the date involved. ¹

On previous visits to the track, the Grays had normally sat in the enclosed grandstand; however, on this occasion they elected to sit in the outdoor spectator area. This open section of stands accommodated bleacher-type seating, along with benches, extending more than fifteen step-like tiers or rows downward from the grandstand toward the track. At various locations, metal banisters cordoned off a portion of the seating so as to form, in effect, a stairway leading from ground level to the top of the seating.

Mr. and Mrs. Gray, sitting near the top of the outdoor stands, did not bet frequently that day. In fact, plaintiff only went down to purchase parimutuel tickets before the seventh and eighth races. Returning to her seat after her second trip, she found her route obstructed by several patrons sitting or leaning against the handrail on the right side of the stairway. The presence of these spectators, which precluded utilization of the banister, caused her to traverse up the center of the steps. After detouring past the group, and while again reaching for the railing to her right, plaintiff glanced up toward her husband seated a few rows above. Before grasping the handrail, however, she suddenly slipped on a partially-eaten hot dog, causing her to fall and sustain injuries.

The Grays thereafter filed this action against both Louisiana Downs, Inc. and Red River Downs, Inc., generally claiming that the defendants' failure to properly inspect and maintain the premises resulted in plaintiff's fall. Following trial on the merits, the court concluded that:

In the grandstand area where there is constant traffic, it is not reasonable to expect Louisiana Downs to constantly sweep the area, keeping it swept free from any and all debris. At all sporting events people are constantly discarding empty containers and unwanted refreshments. This is a hazard that spectators must expect and be alerted to avoid.... [W]here food and other debris is (sic) being constantly thrown on the ground, it is not an unreasonable risk of harm.

Thus, concluding that the defendants breached no legal duty owed to Mrs. Gray, the trial court rendered judgment in favor of defendants. This appeal ensued.

NEGLIGENCE OF DEFENDANTS

It is well settled that the owner-operator of a public entertainment facility must use ordinary or reasonable care to maintain his premises in a reasonably safe condition considering the nature of his particular business. Spiers v. Lake Shore Enterprises Inc., 210 So.2d 901 (La.App. 1st Cir.1968), and authorities there cited. See also Rosenberger v. Central La. Dist. Livestock Show, Inc., 312 So.2d 300 (La.1975); Richoux v. Hebert, 449 So.2d 491 (La.App. 3d Cir.1983), writ denied, 450 So.2d 368 (La.1984). The degree of care required has even been said to be similar to that imposed upon a storekeeper as to his customers. Boucher v. Paramount-Richards Theatres, 30 So.2d 211 (La.App.1947). See also Gums v. Delta Downs, Inc., 425 So.2d 303 (La.App. 3d Cir.1982). The owner-operator of such premises is not, however, the insurer of the safety of his invitees. Richoux, supra; Boucher, supra.

Concerning the propensity of spectators at amusement facilities to discard their concession refuse on the ground, rather than in trash receptacles, at least one other jurisdiction has mentioned the problem, as did the trial court. The Alabama Supreme Court, in Gray v. Mobile Greyhound Park, Ltd., 370 So.2d 1384 (Ala.1979), observed that:

At such places of public amusement as race tracks, dog tracks, ball parks, stadiums and the like, an accumulation of debris upon the walkways during the course of the event is not unlike the build-up of rain water on a storekeeper's floor during storms. In both cases, the accumulation may adversely affect foot traffic--a fact with which the invitee is or should be aware.

See also Perry v. Macon County Greyhound Park, 514 So.2d 1280 (Ala.1987). The Gray court further observed that, since a storekeeper is under no duty to take extraordinary care to keep his floors and passageways completely dry of tracked-in water, see also Johnson v. Tayco Foods, 475 So.2d 65 (La.App. 2d Cir.1985), writ denied, 478 So.2d 149 (La.1985); Edwards v. Piggly Wiggly Operators, 401 So.2d 493 (La.App. 2d Cir.1981), so too would it be unreasonable to require the owner-operator of a public amusement facility to keep his walkways completely free of litter during the course of an amusement event. Of course, whether an owner-operator has discharged his duty of reasonable care is resolved on a case by case basis depending on the particular circumstances. Johnson, supra; Calhoun v. Royal Globe Ins. Co., 398 So.2d 1166 (La.App. 2d Cir.1981).

Mr. Nathan Pavy, director of building services for Louisiana Downs, Inc., advised that his employer sold concession food items, including hot dogs, which could be taken into the spectator area. Yet, at the time of plaintiff's fall, the track provided no trash receptacles for patrons seated outside, save one such device located a considerable distance away and down a tunnel at ground floor level. Acknowledging that patrons discarded food debris on the steps in the stands, Mr. Pavy further admitted having previously picked up observed refuse because it created "a hazard." Nonetheless, the facility assigned no employees to inspect and remove trash from this area during activities each day. Instead, the only cleanup occurred at the conclusion of the races after all spectators left.

Defendants' duty, to provide reasonably safe premises for the entertainment involved, encompasses the risk of a patron slipping and falling on concession litter when other persons or activity momentarily attracts his or her attention. Although the director of building services knew of only two other reported falls, he acknowledged that the litter in the spectator area constituted a hazard. Despite that knowledge, the track provided no additional trash disposal means or clean-up procedures, nor implemented measures designed to keep stairways and walkways clear for persons to access the banisters for their safety. The failure to exercise such reasonable care constituted a breach of the duty owed by defendants to plaintiff as an invitee of the racetrack. And, in arriving at a contrary conclusion, the district court clearly erred.

CONTRIBUTORY NEGLIGENCE OF PLAINTIFF

An objective, reasonable man standard controls in viewing plaintiff's conduct and assessing any contributory negligence; the query: what would a reasonable man do under like circumstances for his own safety and protection? Baugh v. Redmond, 565 So.2d 953 (La.App. 2d Cir.1990); Lee v. Great Southwest Fire Ins. Co., 493 So.2d 789 (La.App. 2d Cir.1986). Upon a finding of contributory negligence, LSA-C.C. Art. 2323 reduces the claim of a plaintiff in proportion to his degree of fault. The apportionment of fault, a factual matter, will not be disturbed on review unless clearly wrong. Soileau v. South Central Bell Telephone Co., 406 So.2d 182 (La.1981); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Of course, the trial court failed to reach any such determination in the present case.

During her trips to the parimutuel window, plaintiff claimed that she observed chicken bones, pieces of pizza, paper cups and other litter "all over" the facility, including the steps. In fact, she admitted walking in some of the food prior to her fall. As she approached the stairway, approximately fifteen minutes remained before the start of the next race. Although not rushed, she chose to walk up the center of the stairway rather than wait until several patrons, approaching on the left side, passed and afforded access to the left railing. Having placed herself where she could not reach a handrail, and knowing of the clutter present, she nonetheless averted her attention to her husband and thereby failed to see the hot dog in question.

A person, while not required to exercise the utmost caution at each moment to avoid every hazard, Soileau, supra, has a duty to see and avoid obvious hazards. See Weber v. Buccola-McKenzie, Inc., 541 So.2d 315 (La.App. 5th Cir.1989); Meshell v. Shamsie, 528 So.2d 1023 (La.App. 3d Cir.1988). Plaintiff's failure to exercise ordinary care for her own safety, under the instant facts, clearly constituted contributory negligence.

APPORTIONMENT OF NEGLIGENCE

In allocating comparative fault, consideration must be given to the nature of each party's conduct and the extent of the causal relationship between the conduct and the damages claimed. Some of the factors, which may influence the degree of fault assigned to parties, are: 1) whether the conduct resulted from inadvertence or involved an awareness of the danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the capacities of the actor, whether superior or inferior, and 5) any extenuating circumstances which might require the actor to...