     Case: 16-30484       Document: 00513821558        Page: 1    Date Filed: 01/04/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 16-30484                              FILED
                                                                          January 4, 2017
                                                                           Lyle W. Cayce
LEE E. EDMISON, JR.; ROSEMARY EDMISON,                                          Clerk

           Plaintiffs - Appellants

v.

CAESARS ENTERTAINMENT OPERATING COMPANY,
INCORPORATED, doing business as Harrah’s New Orleans Casino;
SCHINDLER ELEVATOR CORPORATION; JAZZ CASINO COMPANY,
L.L.C.,

           Defendants - Appellees




                     Appeal from the United States District Court
                        for the Eastern District of Louisiana
                               USDC No. 2:15-CV-1521


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Lee and Rosemary Edmison appeal the district
court’s final judgment dismissing with prejudice their personal injury suit
against Defendants-Appellees Caesars Entertainment Operating Company,
Incorporated and Jazz Casino Company, LLC (collectively, “Caesars”) and


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 16-30484
Schindler Elevator Corporation (“Schindler”), on Defendants-Appellees’
motions for summary judgment. We affirm.
      At approximately 3:15 a.m. on February 12, 2015, Lee Edmison fell down
an escalator at Harrah’s New Orleans Casino and sustained substantial
injuries, including traumatic brain injury. A blood test taken at the hospital
shortly after the accident showed his blood alcohol content to be 0.244 percent,
more than three times Louisiana’s legal limit for driving.
      The Edmisons brought suit against Caesars as owner of Harrah’s,
alleging it was negligent in failing to upgrade the escalator in question with
step-demarcation lines, among other things. They also sued Schindler as the
manufacturer and servicer of the escalator, claiming Schindler was negligent
for failing to recommend certain non-compulsory safety features that would
have prevented Lee’s injury.
      Ceasars sought summary judgment, arguing the Edmisons were unable
to prove two elements of their claim under Louisiana tort law’s duty-risk
analysis: (1) that the escalator contained a defect presenting an unreasonable
risk of harm and (2) causation. Schindler likewise sought summary judgment,
arguing that it did not breach its duty to Lee because it maintained a properly
functioning, code-compliant escalator and that the lack of optional safety
features did not cause Lee’s injuries. The Edmisons opposed the motions,
primarily arguing that whether the escalator created an unreasonable risk of
harm was a question of fact for the jury, and that summary judgment was
inappropriate because there was a dispute as to how Lee fell, why he fell, and
whose fault it was that he fell. The district court granted summary judgment
in favor of both Ceasars and Schindler, dismissing the Edmisons’ suit with
prejudice. 1


      1   Edmison v. Caesars Entm’t Co., Inc., 177 F. Supp. 3d 972, 976 (E.D. La. 2016).
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       The Edmisons’ premises liability claim against Caesars arises under La.
Civ. Code arts. 2317 and 2322, while their general tort claim against Schindler
arises under La. Civ. Code art. 2315. 2 As the district court explained, both
claims generally rely on Louisiana’s duty-risk analysis for torts, which
essentially asks: “Was a duty owed? Was the duty breached? Did the breach of
duty cause the plaintiff’s harm?” 3 For a premises liability claim, the plaintiff
must also prove that the alleged building defect was “unreasonably dangerous”
under Louisiana’s complex “risk-utility” analysis. 4 Notably, under risk-utility
analysis, a premises owner “owes no duty to protect against an open and
obvious hazard,” i.e., one which “is open and obvious to everyone who may
potentially encounter it.” 5
       Although this analysis can be fairly complicated, 6 we agree with the
district court that the outcome of this suit turns on either questions of law or
undisputed questions of fact. As to the Edmisons’ claim against Caesars, the
district court held that the risk of an escalator is “open and obvious”:
       It is no secret that the steps on an escalator move and eventually
       separate as they begin to go up or down. Anyone of ordinary
       prudence knows to pay attention when stepping on or off an
       escalator. It is obvious and apparent that if one fails to look down
       to see where the escalator steps are separating, one may fall. Even
       holding Caesars to a “high degree of care,” “[t]he owner of a
       building is not responsible for all injuries resulting from any risk
       posed by the building.” Using a normally-operating escalator, like
       using stairs or crossing the street, poses inherent, yet obvious
       risks. Even with its heightened standard of care, Caesars does not



       2 Id. at 976.
       3 Id. (citing Broussard v. State ex. Rel. Office of State Buildings, 12–1238 (La. 4/15/13);
113 So. 3d 175).
       4 Id. at 977 (citing Broussard).
       5 Id. at 978 (citing Bufkin v. Felipe’s Louisiana, 14–0288 (La. 10/15/14); 171 So. 3d

851, 856).
       6 See id. at 976-78 (discussing Broussard, Bufkin, and Allen v. Lockwood, 14-1724 (La.

2/13/15); 156 So. 3d 650).
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       have a duty to add any and all safety features that may or may not
       prevent injury. 7
Accordingly, the district court concluded that Caesars owed no duty to protect
against the risk by adding the safety features urged by the Edmisons. 8
       The district court also found that the escalator was not dangerous as a
matter of law based on the undisputed evidence:
       The escalator in compliance with the relevant safety codes. It was
       operating normally; it was not malfunctioning. It is clear from the
       video footage that many people used the escalator without hazard
       in the minutes immediately before the plaintiff’s fall. Both
       plaintiffs testified that they were frequent visitors of Harrah’s
       Casino and had used the tunnel escalators perhaps 100 times
       before without incident. Caesars estimates that 600,000 people
       used the escalator in the six month period before the plaintiff’s fall.
       There were three reported accidents during that time. 9
In sum, nothing in the record suggests that the escalator was unreasonably
dangerous; indeed, the court noted that “the most unreasonably dangerous
conduct on this record is the plaintiff’s own heavy alcohol consumption.” 10 We
find no error in the district court’s reasoning.
       As to the Edmisons’ general tort claim against Schindler, the parties
agreed “that Schindler owed a duty of reasonable care to maintain and service
the escalator under its contract with Caesars.” 11 The district court explained
that Schindler did not have a duty to ensure that the escalators were “as safe
as possible,” however, only “to exercise reasonable care in the maintenance and
service of the escalators.” 12 It concluded that Schindler had not breached that



       7  Id. at 979 (footnotes and citation omitted).
       8  Id.
        9 Id. (footnote omitted).
        10 Id. at 980.
        11 Id. (citing Rabito v. Otis Elevator Co., 93–1001 (La. App. 4 Cir. 12/15/94); 648 So.2d

18, 19).
        12 Id. at 981.

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duty as a matter of law because the undisputed record evidence showed that
the “escalator complied with the safety requirements and was not
malfunctioning at the time of the accident.” 13 Again, we find no error in the
district court’s reasoning.
      Because we conclude that the Edmisons’ claims against Caesars and
Schindler must fail as a matter of law, we affirm the district court’s final
judgment dismissing their suit with prejudice.
      AFFIRMED.




      13   Id.
                                      5
