Mills v. Cyntreniks Plaza, L.L.C.

• Citation: 182 So.3d 80
• Decision Date: 19 August 2015
• Docket Number: No. 2014 CA 1115.,2014 CA 1115.
• Parties: D'ANDREA MILLS v. CYNTRENIKS PLAZA, L.L.C.
• Court: Court of Appeal of Louisiana (US)

182 So.3d 80

D'ANDREA MILLS
v.
CYNTRENIKS PLAZA, L.L.C.

No. 2014 CA 1115.

Court of Appeal of Louisiana, First Circuit.

Aug. 19, 2015.

182 So.3d 81

Timothy J. Martinez, Baton Rouge, LA, for Plaintiff/Appellant D'Andrea Mills.

George P. Hebbler, Jr., Frank A. Romeu, Jr., Metairie, LA, for Defendant/Appellee Cyntreniks Plaza, L.L.C.

Before McDONALD, CRAIN, and HOLDRIDGE, JJ.

McDONALD, J.

The plaintiff in a slip and fall suit appeals a summary judgment granted in favor of the operator of the establishment where the accident occurred. For reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On the night of October 1, 2010, D'Andrea Mills and three friends attended a birthday party at The Lyceum Dean Ballroom in Baton Rouge, Louisiana, an establishment operated by Cyntreniks Plaza, L.L.C. Although the three women were attending a private party for which a table had been reserved, The Lyceum was also open to general public admission that evening, a cash bar was open for the purchase of alcoholic beverages, and a disc jockey was playing music on a stage near the dance floor. Upon their arrival, Ms. Mills and two of her friends purchased drinks at The Lyceum's bar. Later on that night, Ms. Mills and her friends went on the dance floor to dance. Ms. Mills contends that while leaving the dance floor, she slipped and fell on clear liquid and broken glass located on the ballroom's dance floor. After her fall, Ms. Mills and her friends left The Lyceum without reporting the incident to anyone and drove to a local emergency room to obtain medical treatment for her. Ms. Mills sustained two broken bones in her left arm from the fall, which required surgery to repair.

Ms. Mills later filed a petition for damages against Cyntreniks. In response, Cyntreniks filed a motion for summary judgment contending that Ms. Mills could not meet her burden of proof as set forth in the Merchant Liability Statute, LSA–R.S. 9:2800.6(B). After a hearing, the trial court signed a judgment on September 25, 2013, granting summary judgment in Cyntreniks' favor, and dismissing Ms. Mills' claims with prejudice. From this judgment, Ms. Mills appeals.

DISCUSSION

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues. Clark v. J–H–J, Inc., 13–0432 (La.App. 1 Cir. 11/1/13), 136 So.3d 815, 816, writ denied, 13–2780 (La.2/14/14), 132 So.3d 964. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the movant is entitled to judgment as a matter of law. LSA–C.C.P. art. 966(B)(2) ; Tomaso v. Home Depot, U.S.A., Inc., 14–1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 681. The burden of proof remains with the movant. LSA–C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the

182 So.3d 82

motion for summary judgment, the movant's burden on the motion does not require that he negate all essential elements of the adverse party's claim, action, or defense. Instead, the movant must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. See LSA–C.C.P. art. 966(C)(2) ; Clark, 136 So.3d at 817.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Tomaso, 174 So.3d 679, 681. Linder the Merchant Liability Statute, a merchant owes a duty to persons who use his premises to exercise reasonable care to keep his floors in reasonably safe condition. LSA–R.S. 9:2800.6(A). A "merchant" is defined as one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. LSA–R.S. 9:2800.6(C)(2). Thus, as a threshold matter, to prove its entitlement to summary judgment, Cyntreniks was required to show that there was no disputed factual issue as to its status as a merchant. See LSA–C.C.P. art. 966(C)(1).¹

The summary judgment evidence included the deposition and affidavit of Mr. Reginald Evans, the Cyntreniks employee who managed The Lyceum; Ms. Mills' deposition; and the depositions of Ms. Ronquencia Ellsworth and Ms. Jessica Randolph, two of the friends with whom Ms. Mills went to The Lyceum. According to Mr. Evans, in 2010, The Lyceum was an "events" venue, where wedding receptions, concerts, private parties, and business meetings were held. Additionally, on some evenings, The Lyceum held both private parties, where tables were reserved for such, and was also opened for general public admission, offering a cash bar for the purchase of alcoholic beverages, a dance floor, and music being played by a hired disc jockey. In October 2010, Cyntreniks had a staff of approximately eight persons, and depending on the event, these employees would bar tend, wait tables, and serve. If more staff was needed for a particular event, such was outsourced. Further, Cyntreniks also hired outside agencies to provide security personnel for events and its nighttime openings. The duties of the security personnel included securing the front door, checking IDs to ensure age limit restrictions were enforced, preventing fights, checking for and picking up foreign objects from the floor, and making sure patrons were safe. Mr. Evans' characterization of the nature of The Lyceum's business was corroborated by Ms. Mills, Ms. Ellsworth, and Ms. Randolph. The deposition testimony of each of these women demonstrated that, on the night of Ms. Mills' fall, they were attending a birthday party at The Lyceum, a table had been reserved for the party, they purchased multiple drinks and danced to music while there, they saw security guards walking around, and members of the general public were also present.

182 So.3d 83

After a de novo review of the above evidence, we conclude that, on the night of Ms. Mills' fall, The Lyceum was engaged in business comparable to that of a nightclub or cocktail lounge. Similar to a typical merchant, such as a store or restaurant, a nightclub is a commercial establishment that invites members of the public into its premises for their mutual advantage or benefit. See Labit v. Palms Casino & Truck Stop, Inc., 11–1552 (La.App. 4 Cir. 5/9/12), 91 So.3d 540, 555, writ denied, 12–1310 (La.9/28/12), 98 So.3d 843. As such, a commercial establishment is required to exercise reasonable care to protect those it anticipates will enter the premises, to keep the premises safe from unreasonable risks of harm, and to warn persons of known dangers.See Harrison v. Horseshoe Entertainment, 36,294 (La.App. 2 Cir. 8/14/02), 823 So.2d 1124, 1128. Because the purpose of the Merchant Liability Statute is to define the burden of proof in cases involving a slip and fall in such commercial establishments, we conclude The Lyceum qualifies as a merchant within the meaning of LSA–R.S. 9:2800.6(C)(2). Green v. Orleans Parish School Board, 00–0106 (La.App. 4 Cir. 2/7/01), 780 So.2d 1082, 1085 (noting purpose of statute). Accord Ballas v. Kenny's Key West, Inc., 02–684 (La.App. 5 Cir. 12/11/02), 836 So.2d 289, 292 (although the conditions inside a lounge are not similar to those of a typical retailer, the court held that LSA–R.S. 9:2800.6 applied, because under the broad definition of merchant, the defendant lounge sold "goods and food at a fixed place of business"). Also accord Nuccio v. Robert, 99–1327 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 88, writ denied, 00–1453 (La.6/30/00), 766 So.2d 544 (in a tort action by a lounge patron who slipped and fell on a substance while dancing on the lounge's dance floor, the court analyzed the plaintiff's burden of proof under the provisions of LSA–R.S. 9:2800.6 ).² Also see cases where a casino, similar to a nightclub, qualified as a "merchant" under the Merchant Liability Statute, De La Rosa v. St. Charles Gaming Company, Inc., 1:04 CV 540 (E.D.Tex.8/9/05), 2005 WL 2284205 *5 n. 9 (unpublished); Thomas v. Caesars Entertainment Operating Company, Inc., 12–1202 (La.App. 4 Cir. 1/23/13), 106 So.3d 1279, 1281–82, writs denied, 13–0462, 13–0546 (La.4/5/13), 110 So.3d 590, 593 ; Richardson v. Louisiana–1 Gaming, 10–262 (La.App. 5 Cir. 12/14/10), 55 So.3d 893, 895 ; Rowell v. Hollywood Casino Shreveport, 43,306 (La.App. 2 Cir. 9/24/08), 996 So.2d 476, 478 ; Neal v. Players Lake Charles, LLC, 01–0244 (La.App. 3 Cir. 6/6/01), 787 So.2d 1213, 1215, writ denied, 01–1983 (La.10/26/01), 799 So.2d 1147. Also see 27A Am.Jur.2d Entertainment and Sports Law § 84.

Having determined that Cyntreniks proved its status as a merchant, we now address whether Cyntreniks has pointed out the absence of factual support for one or more elements essential to Ms. Mills' claim. See...