Legendre v. Harrah's New Orleans Management Company et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NELLIE LEGENDRE CIVIL ACTION

VERSUS NO. 23-3674

HARRAH’S NEW ORLEANS SECTION: “H”
MANAGEMENT CO., ET AL.

ORDER AND REASONS
Before the Court is Defendants’ Motion for Summary Judgment (Doc. 30)
and Plaintiff’s Motion for Partial Summary Judgment (Doc. 31). On October 3,
2024, Defendants’ Motion for Summary Judgment was GRANTED and
Plaintiff’s Motion for Partial Summary Judgment was DENIED. These
reasons follow.

BACKGROUND
This case arises out of alleged injuries Plaintiff Nellie Legendre
sustained on May 21, 2023 when she and a Harrah’s Casino New Orleans
Management Company (“Harrah’s”) employee walked into each other.
Plaintiff is a regular patron of the casino operated by Defendants, and after
betting alongside her sister and winning some money at a slot machine,
Plaintiff got up from her seat to cash out her ticket. While walking back to her
seat, the employee and Plaintiff collided. The impact from the collision caused
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 1 of 10

2

Plaintiff to fall on the ground. Plaintiff alleges that she suffered a fractured
right hip, a laceration to her scalp, and soft tissue injuries due to the fall.
Plaintiff filed the instant suit against Defendants alleging that the employee’s
negligence caused her injuries and that the Defendants are vicariously liable
for Plaintiff’s injuries under the doctrine of respondeat superior.
Plaintiff filed suit in Civil District Court for the Parish of Orleans on
June 26, 2023. Defendants removed the case to this Court on August 18, 2023.
Now before the Court are Defendants’ Motion for Summary Judgment and
Plaintiff’s Motion for Partial Summary Judgment. Both motions are opposed.
1

LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
2
“As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
3
Nevertheless, a dispute
about a material fact is “genuine” such that summary judgment is
inappropriate “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”
4

In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor.
5
“If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts

1
Docs. 35, 41.
2
FED. R. CIV. P. 56.
3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
4
Id. at 248.
5
Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 2 of 10

3

showing the existence of a genuine issue for trial.”
6
Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.”
7

“In response to a properly supported motion for summary judgment, the
nonmovant must identify specific evidence in the record and articulate the
manner in which that evidence supports that party’s claim, and such evidence
must be sufficient to sustain a finding in favor of the nonmovant on all issues
as to which the nonmovant would bear the burden of proof at trial.”
8
The Court
does “not . . . in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.”
9
Additionally, “[t]he mere argued
existence of a factual dispute will not defeat an otherwise properly supported
motion.”
10

LAW AND ANALYSIS
1. Defendant’s Motion for Summary Judgment (Doc. 30)
Defendants argue that they are entitled to summary judgment because
the employee involved in the incident that precipitated Plaintiff’s injuries did
not breach the duty owed under the circumstances, and Defendants did not
breach a duty in their hiring, training or supervision of the employee. Plaintiff
opposes, arguing that material issues of fact remain for trial as to breach. This
diversity action is governed by Louisiana tort law.
11

6
Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1462 (5th Cir. 1995).
7
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
8
Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
9
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
10
Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
11
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996).
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 3 of 10

4
“Louisiana courts have adopted a duty-risk analysis in determining
whether to impose liability under La. Civ. Code art. 2315.”
12
Under this
analysis,
a plaintiff must prove five separate elements: “(1) the defendant
had a duty to conform his or her conduct to a specific standard of
care; (2) the defendant failed to conform his or her conduct to the
appropriate standard of care; (3) the defendant’s substandard
conduct was a cause-in-fact of the plaintiff’s injuries; (4) the
defendant’s substandard conduct was a legal cause of the plaintiff’s
injurie; and (5) actual damages.
13

“A negative answer to any of the inquiries of the duty-risk analysis results in
a determination of no liability.”
14
The Court therefore considers whether
material issues of fact remain as to duty and breach.
“Whether a duty is owed is a question of law; whether defendant has
breached a duty owed is a question of fact.”
15
Plaintiff, relying exclusively on
the employee’s deposition and accompanying description of his role, seems to
argue that the employee as a customer safety officer had a heightened duty to
ensure the safety of the casino’s guests. Defendants assert that the employee
did not have some heightened duty of care rather that his duty was to act as
reasonable person under the circumstances.
“Whether a legal duty is owed by one party to another depends on the
facts and circumstances of the case and the relationship of the parties. In all
cases, duty can be stated generally as the obligation to conform to the standard
12
Prisonneault v. Merchants & Farmers Bank & Trust Co., 816 So. 2d 270, 275–76 (La. 2002).
13
Id. (citing Roberts v. Benoit, 605 So. 2d 1032 (La. 1991); Fowler v. Roberts, 556 So. 2d 1, 4
(La. 1989); Mundy v. Dep’t of Health & Human Res., 620 So. 2d 811 (La. 1993); Thomas C.
Galligan, Jr., A Primer on the Patterns of Negligence, 53 L
A. L. REV. 1509, 1510 (1993)).
14
Pottinger v. Price, 289 So. 3d 1047, 1055 (La. App. 1st Cir. 2019) (citing Lemann v. Essen
Lane Daiquiris, Inc., 923 So. 2d 627, 632–33 (La. 2006)).
15
Brewer v. J.B. Hunt Transp., Inc., 35 So. 3d 230, 241 (La. 2010) (citing Mundy, 620 So. 2d
at 813).
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 4 of 10

5
of conduct of a reasonable man under the circumstances.”
16
Here, the Court
sees no reason that the employee should be held to any higher duty than to act
reasonably under the circumstances, and no case law suggests otherwise.
17

Having determined that the Defendant had a duty to act reasonably
under the circumstances, the Court turns to the element of breach. Here, the
pertinent question is: “If the defendant owed such a duty, did his conduct fall
short of the standard and come within the scope set by law?”
18
Defendants
argue that the employee did not breach his duty to act reasonably under the
circumstances by glancing around the lobby while walking. Plaintiff argues
that the employee’s statements in his incident report and deposition evidence
his breach.
19

To support their motion, Defendants provided the Court with
surveillance video that shows the moments before, during, and after the
collision occurred.
20
In the relevant part of the surveillance video, the employee
is seen walking into the frame from what he later identified as the bravo
portion of the casino floor. Importantly, the employee’s job as a customer safety
officer required him to “observe everything” and “check for any suspicious
activity,” among other things.
21
The surveillance video shows that the
employee was acting in a way that comported with his role as a customer safety
officer prior to the incident: he was walking through the casino, observing the
16
Thielmier v. Louisiana Riverboat Gaming P'ship, 732 So. 2d 620, 623 (La. App. 2 Cir. 1999)
(citing Seals v. Morris, 410 So.2d 715 (La.1981).
17
See id. (finding that an employee’s duty of care was not heightened just by virtue of the
fact that he may have had greater knowledge of or more experience operating in his
workplace than the injured patron).
18
Pitre v. Opelousas Gen. Hosp., 530 So. 2d 1151, 1155 (La. 1988).
19
Doc. 31-1 at 4-5.
20
Plaintiff also supplied the Court with surveillance video footage of the incident, but only
referred to it directly as it relates to breach in their Opposition to Defendants’ motion, not
their own Motion for Summary Judgment. Doc. 35 at 3-4.
21
Doc. 30-4 at 25:21-24. Deposition of the employee involved in incident.
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 5 of 10

6
customers and casino floor generally as he did so. While on the floor, the
employee stops walking to look down at his phone in his pocket before
proceeding to pass under an archway into the alpha section of the casino. The
slot machine Plaintiff was using prior to getting up to cash her ticket was in
the alpha section. The video shows the employee continuously surveying the
casino floor by looking from left to right as he walked slowly. From the right
side of the screen, between a large column and several cash-handling
machines, Plaintiff appears and is seen walking towards her seat, in the
direction of the employee. The employee and Plaintiff collide, and Plaintiff
stumbles before falling to the ground.
The Court believes that the Louisiana Third Circuit Court of Appeal’s
articulation of a casino employee’s standard of duty in Manecke v. Golden
Nugget Lake Charles is helpful and finds that the employee in the instant
case had a “duty to . . . refrain from running, walking fast, or walking in a
distracted manner.”
22
In Manecke, however, when analyzing the element of
breach, the court concluded that “reasonable minds could differ on whether
[the employee] acted in a negligent manner.”
23
There, surveillance video
footage showed the series of events that occurred before a casino employee
“forcefully knocked” the plaintiffs to the floor.
24
According to the court, the
employee in that case was walking at a “hurried pace” before “apparently
speaking to another individual” and “unbuttoning her jacket” as she
approached a restroom doorway.
25
The employee proceeded to trip and “move
in large, uncontrolled steps with her shoulders lowered toward the plaintiffs,”
culminating in her “significant and brutal” collision with them.
26

22
So. 3d 39, 43 (La. App. 3 Cir. 2023), reh'g denied (Apr. 12, 2023).
23
Id. at 44.
24
Id. at 40.
25
Id. at 42.
26
Id.
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 6 of 10

7
The video surveillance footage before the Court in the instant case
reveals an entirely distinguishable, though equally unfortunate, series of
events. First, the employee here was not walking at a hurried or unreasonable
pace as he approached the area where Plaintiff was walking. Second, he was
not engaging in any activity that distracted him from the performance of his
duties as a customer safety officer.
27
Third, the employee was entering a much
wider space than a bathroom doorway like the one in Manecke, which means
there was no need for him to anticipate that “at any moment [the walkway]
would become temporarily congested so as to require [him] to change his route
or to slow his movement to the point of stopping altogether in order to take
precaution against unexpected collisions with . . . customers
.”
28
As such, here,
the Court does not see any breach of the employee’s duty to act reasonably and
does not believe reasonable minds could differ.
While “[o]rdinarily, [because] the determination of whether negligence
exists in a particular case is a question of fact . . . cases involving a question
of negligence ordinarily are not appropriate for summary judgment,”
29
this
Court does not believe that the evidence presented by the parties could allow
a factfinder to decide against Defendants. “Although factual inferences
reasonably drawn from the evidence must be construed in favor of the party
opposing a motion for summary judgment, mere conclusory allegations,
improbable inferences, and unsupported speculation will not support a finding
of a genuine issue of material fact as would defeat the motion.”
30
Plaintiff’s
reliance on the employee’s characterizations of the event to prove breach fail
27
Again, the Court notes that the employee came to a full and complete stop when he
checked the cell phone in his pocket seconds before moving through the narrow archway
separating the alpha and bravo sections of the casino, showing “heightened precaution” on
his part. See Manecke, 371 So. 3d 39, 43.
28
Manecke at 43.
29
Id. (quoting Freeman v. Teague, 862 So.2d 371, 373 (La. App. 2 Cir. 2003)).
30
Wilson v. Reed, 354 So. 3d 42, 45 (La. App. 1 Cir. 2022).
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 7 of 10

8
to overcome the reality of the incident as faithfully depicted in the surveillance
video footage before the Court which shows that the employee was simply
doing his job prior to the incident. Further, it would be unreasonable for this
Court to find that an employee whose job it is to survey his surrounding area
for suspicious activity breached a reasonable duty of care by doing just that.
As such, the Court finds that no reasonable jury could rule against the movant
based on the facts before it. Accordingly, Defendants’ motion for summary
judgment is granted.
2. Plaintiff’s Motion for Partial Summary Judgment (Doc. 31)
Plaintiff moves for partial summary judgment in her favor because the
employee was acting within the scope of his employment when his negligence
led to her injuries, making Defendants vicariously liable under a theory of
respondeat superior. Plaintiff also asserts that Defendants negligently hired,
trained, and supervised the employee because of his vision issues. Defendants
oppose, responding that the employee did not breach his duty to act reasonably
under the circumstances and that Plaintiff put forth no evidence to support
Plaintiff’s claims of negligent hiring, supervision, and training.
a.Vicarious Liabili
ty
“In Louisi
ana, as elsewhere, an employer is liable for a tort committ
ed
by
his employee if, at the time, the servant is acting within the scope of his
employment—acting, in the exercise of the functions in which ... employed. An
employer is answerable for its employee’s negligent acts when the conduct is
so closely connected in time, place, and causation to the employment duties of
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 8 of 10

9
the employee that it constitutes a risk of harm attributable to the employer's
business.”
31

Here, there is no disputed material issue of fact that the incident
occurred at a property owned and operated by the Defendants and that the
employee involved was acting within the course and scope of his employment
when it did. However, because, for reasons stated above, the Court does not
believe a reasonable juror could find that the employee acted negligently, the
Court must deny Plaintiff’s motion for partial summary judgment as to
Defendants’ liability.
b.Negligent Hiring, Supervision, and Training
Finally, Plaintiff argues that Defendants knew or should have known
about a physical impairment of the employee and the potential damage that
his disability could cause. To support their assertion regarding negligent hiring
specifically, Plaintiff provided the employee’s Louisiana state driver’s license
and refer to the employee’s deposition. The former shows only that the
employee is required to wear corrective lenses when he operates a vehicle.
32

The latter reveals that the employee suffered from a traumatic injury to his
right eye as a child and underwent surgery to recover what sight he could.
33

“[A]n employer can only be liable under theories of negligent hiring,
supervision, training and retention, and negligent entrustment if the
employee is at fault, and that the employer cannot be liable if the employee is
not at fault.”
34
For the reasons stated above regarding the employee’s lack of
31
Johnson v. Transit Mgmt. of Se. Louisiana, Inc., 239 So. 3d 973, 979-83 (La. App. 4 Cir.
2018) (internal quotations and citations omitted).
32
Doc. 31-2 at 39.
33
Doc. 30-4 at 12:2-8.
34
Martin v. Thomas, 2021-01490 (La. 6/29/22), 346 So. 3d 238, 247 (quoting Libersat v. J &
K Trucking, Inc., 772 So. 2d 173, 175 (La. App. 3 Cir. 2000), writ denied, 789 So. 2d 598 (La.
2001)).
Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 9 of 10

10

negligent conduct, and because Plaintiff failed to present this Court with any
evidence that would support a finding that Defendants negligently hired,
trained, or supervised the employee involved in the incident at issue, granting
partial summary judgment in the Plaintiff’s favor would not be proper.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment
was GRANTED, and Plaintiff’s Motion for Partial Summary Judgment was
DENIED. Plaintiff’s claims were DISMISSED with prejudice.

New Orleans, Louisiana this 7th day of November, 2024.

_________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

Case 2:23-cv-03674-JTM-MBN Document 53 Filed 11/07/24 Page 10 of 10