Neal v. Players Lake Charles, LLC

• Decision Date: 06 June 2001
• Docket Number: No. 01-0244.,01-0244.
• Parties: Victoria and John NEAL v. PLAYERS LAKE CHARLES, LLC, et al.
• Court: Court of Appeal of Louisiana — District of US

787 So.2d 1213

Victoria and John NEAL v. PLAYERS LAKE CHARLES, LLC, et al.

No. 01-0244.

Court of Appeal of Louisiana, Third Circuit.

June 6, 2001.

Robert C. McCall, Baggett, McCall & Burgess, Lake Charles, LA, Counsel for Plaintiffs/Appellees Victoria Neal and John Neal.

Andrew Robinson Johnson, IV, Plauche, Smith & Nieset, Lake Charles, LA, Counsel for Defendants/Appellants Players Lake Charles, LLC, Zurich-American Ins. Co.

Court composed of OSWALD A. DECUIR, MARC T. AMY, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

In this case, the defendants, Players Lake Charles, LLC and Zurich American Insurance Group (collectively referred to as Players), appeal the judgment in favor of the plaintiffs, Victoria and John Neal, awarding them $22,987.49 for injuries sustained by Victoria in a fall. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 1997, Victoria, then eighty-four years old, fell and fractured her left wrist as she was walking through the casino owned by Players. She, thereafter, sued Players alleging that the floor was an unreasonably dangerous walking surface. The trial court concluded the floor surface was unreasonably dangerous after taking judicial notice of several facts and awarded the Neals $22,987.49. Players then filed this appeal, assigning as error:

1. The trial court's judicial notice of facts that were not properly subject to judicial notice, and

2. The trial court's failure to require the Neals to carry the burden of proving the liability of Players by a preponderance of the evidence.

JUDICIAL NOTICE

Players urges that it was an error of law for the trial court to take judicial notice of technical, disputed facts concerning the effects of a sealant applied by Players to its casino floor. The Neals argue that the trial court did not take improper judicial notice of any facts but, instead, made inferences based upon the testimony given at trial. The question before us is whether the trial court's findings concerning the alleged sealant build-up resulted from the improper use of judicial notice of facts knot susceptible to the doctrine. We agree with Players and find that the trial court's factual conclusions were an improper use of judicial notice and constituted an error of law.

La.Code Evid. art. 201(B) states:

Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

(1) Generally known within the territorial jurisdiction of the trial court; or

(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

The trial court determined that the Armorkote sealant used by the casino every two weeks must have necessarily built up over time. We can find no evidence to support that conclusion in our review of the record. The trial court opined that the floor should probably be stripped every so often and sealed again to prevent this "build-up" of sealant product. Again, this determination was based purely on conjecture as there is no witness testimony or documentary evidence to support this supposition. In the same vein, without any evidence before us, we could determine that no such build-up occurred because of the heavy traffic experienced by a casino open for business twenty-four hours a day. Thus, the bi-weekly application simply replenished the worn away sealer. However, without any evidence to this effect, neither we nor the trial court are qualified to make such findings regarding the chemical properties of floor sealant products. This simple example clearly displays that the qualities pertaining to the floor sealant are not facts "forming part of the common knowledge of every person of ordinary understanding and intelligence."..kWaiker v. Halliburton Servs., Inc., 93-722, p. 3 (La. App. 3 Cir. 3/1/95); 654 So.2d 365, 368, writ denied, 95-1507 (La.9/22/95); 660 So.2d 481. Whether the floor sealant "built-up" so as to cause the floor to become slick and cause Victoria's fall is a disputed fact, and not one subject to judicial notice. Accordingly, we conduct a de novo review of the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989).

BURDEN OF PROOF

In a slip and fall case, the plaintiff must prove, among other...