Marmer v. Queen of New Orleans, 2000-CA-1598.

• Decision Date: 16 May 2001
• Docket Number: No. 2000-CA-1598.,2000-CA-1598.
• Citation: 787 So.2d 1115
• Parties: Melvin MARMER v. QUEEN OF NEW ORLEANS AT THE HILTON, Joint Venture, D/B/A Flamingo Casino, and Todd Lucas.
• Court: Court of Appeal of Louisiana — District of US

787 So.2d 1115

Melvin MARMER v. QUEEN OF NEW ORLEANS AT THE HILTON, Joint Venture, D/B/A Flamingo Casino, and Todd Lucas.

No. 2000-CA-1598.

Court of Appeal of Louisiana, Fourth Circuit.

May 16, 2001.

Darleen M. Jacobs, Paul D. Hesse, Al Ambrose Sarrat, Jacobs & Sarrat, New Orleans, Counsel for Plaintiff/Appellant.

Peter B. Sloss, Molly B. Halloran, Murphy, Rogers & Sloss, New Orleans, Counsel for Defendants/Appellees.

Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY.

MURRAY, J.

The plaintiff, Melvin Marmer, appeals a trial court judgment granting a motion for summary judgment brought by the defendant, Queen of New Orleans at the Hilton Joint Venture, d/b/a Flamingo Casino ("the casino"). For the reasons that follow, we affirm.

The facts of this case are not disputed. Around lunchtime on Easter Sunday, April 7, 1996, Melvin Marmer and his wife boarded the casino, a gambling vessel on the Mississippi River in New Orleans. They proceeded first to the "player's club desk" to obtain certain cards. Before they began gambling, Mr. Marmer went to the restroom. In the restroom, he allegedly was assaulted by Todd Lucas, another patron aboard the vessel. The two men struggled. The incident ended when Mr. Lucas pulled Mr. Marmer away from the door and ran out of the restroom. Mr. Marmer also ran out of the restroom, alerted security personnel, and identified Mr. Lucas who was apprehended and detained by the casino's security personnel and arrested by New Orleans Harbor Police.

Mr. Marmer sued the casino and Todd Lucas for damages stemming from this incident, including a torn rotator cuff necessitating surgery.¹ In his lawsuit, Mr. Marmer alleged that the casino failed to properly monitor the men's restroom, failed to institute proper security inspection procedures, failed to come to his aid despite his screams for help, and failed to have security which was attentive to the needs of the vessel's patrons.

On June 5, 1998, the casino filed a motion for summary judgment claiming it was entitled to dismissal of the claims against it. The casino asserted that it could not be held liable for the unforeseen and unanticipated criminal acts of a third party against Mr. Marmer because it did not have a legal duty to protect against such actions. The casino submitted Mr. Mariner's deposition and affidavits from two of its security supervisors stating, among other things, that no patron had ever been assaulted on the vessel, they had no reason to suspect that Mr. Lucas posed a threat to other patrons, and the casino had reasonable precautions in place to ensure the safety of its patrons. Mr. Marmer opposed this motion for summary judgment, submitting parts of his deposition and two cases from Nevada stating that gambling establishments in general may provide "a fertile environment" for criminal acts.

On July 14, 1998, after a hearing, the trial court denied the casino's motion for summary judgment without giving written reasons. Subsequently, in September 1999, the case was set for a non-jury trial on March 1, 2000.

On January 7, 2000, the casino again filed a motion for summary judgment asking the trial court to dismiss the claims against it. The casino relied upon a recent Louisiana Supreme Court decision, Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762, to support its claim that it owed no legal duty to protect against unforeseeable and unanticipated criminal acts of a third party. With this motion, the casino again submitted a portion of Mr. Manner's deposition and the two affidavits from security supervisors at the casino, as well as the Posecai decision.

The casino's second motion for summary judgment was set for hearing on February 11, 2000. Mr. Marmer submitted an opposition to this motion for summary judgment and resubmitted a portion of his deposition as well as the two Nevada cases.

By judgment of February 29, 2000, the trial court granted the casino's second motion for summary judgment, assigning written reasons.² Mr. Marmer appeals the trial court's decision to grant the casino's motion for summary judgment.

In its Reasons for Judgment, the trial court stated:

The Plaintiff did not introduce any evidence establishing that this particular assault was reasonably foreseeable. Further, the Plaintiff has failed to meet his burden of proving that there was a legal duty to protect him against this specific criminal act. The Defendants, however, have provided evidence that this specific assault could not be foreseen or prevented. According to Posecai v. Wal-Mart, 99-1222 (La.11/30/99); , unless there have been previous instances of crime on the business' premises, then "it is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards."

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Taylor v. Rowell, 98-2865 (La.5/18/99), 736 So.2d 812, 814. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprises, Inc. v. First National Bank, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish these ends. La.Code Civ.P. art. 966(A)(2). La.Code Civ.P. art. 966 provides that summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law.

The party who files the motion for summary judgment has the burden of showing that no genuine issues of material fact exist. La.Code Civ.P. art. 966(C)(2). To satisfy this burden, the movant must present evidence to support his motion. However, if, as in the instant case, the movant will not bear the burden of proof at trial, his burden on the motion does not require him to negate all essential elements of the plaintiffs claim, but rather is to point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983, 985.

After the movant has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La.Code Civ.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. La.Code Civ.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ.P. art. 967.

In his first assignment of error, Mr. Marmer asserts that the casino did not bring its second motion for summary judgment in a timely manner, and therefore the trial court should not have heard the motion. He refers to the trial court's standard pre-trial order, which provides as a deadline, "Pending motions, rules or exceptions, not brought for hearing or disposed of thirty (30) days prior to trial will be considered as waived or abandoned." The casino filed its motion on January 7, 2000. On January 12, 2000, the trial court set the motion for hearing on February 11, 2000. The trial date was set for March 1, 2000.

Mr. Marmer claims he was prejudiced by the trial court's failure to follow its own order. Although not clear, the claim of prejudice appears to involve his purchase of an airline ticket to travel to New Orleans.

Even if the trial court's standard pre-trial order had the force of a local rule of court, it could not conflict with a legislative act such as La.Code Civ.P. art. 966(A)(1) which provides that a defendant's motion for summary judgment may be made at any time. See Rodrigue v. Rodrigue, 591 So.2d 1171 (La.1992). Moreover, Mr. Marmer has given no compelling reason for us to abrogate the trial court's discretion to deviate from its own pre-trial order to entertain motions in the time frame it deems appropriate, or, for that matter, to interpret its own orders. In this case, the trial court did not abuse its discretion in hearing a motion for summary judgment three weeks before the date set for trial.

In his second assignment of error, Mr. Marmer asserts that the trial court erred in applying the Posecai decision retroactively. In Louisiana, however, judicial decisions apply both prospectively and retroactively. Hulin v. Fibreboard, 178 F.3d 316, 327 (5th Cir.1999); Harlaux v. Harlaux, 426 So.2d 602, 604(La.), cert. denied, 464 U.S. 816, 104 S.Ct. 74, 78 L.Ed.2d 86 (1983); Succession of Clivens, (on rehearing) 426 So.2d 585 (La.1982). The trial court did not err in considering the Posecai decision in formulating its ruling on the summary judgment motion.

In his third assignment of error, Mr. Marmer claims that the trial court erred in granting summary judgment by incorrectly interpreting the Posecai decision. Citing several Nevada cases, Mr. Marmer contends that the casino owed a duty to him to protect him from the assault. Mr. Marmer further claims that the existence of a security force at the casino should be considered as part of the foreseeability aspect of the balancing test adopted in Posecai.

In Posecai, the court addressed the sole issue of whether Sam's Club, a discount store, owed a duty to protect the plaintiff from the criminal act of a third party under...