     Case: 16-31039      Document: 00513913647         Page: 1    Date Filed: 03/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-31039                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          March 15, 2017
LESLIE MARTIN,                                                             Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

BOYD RACING, L.L.C., doing business as Delta Downs Racetrack Casino &
Hotel; BOYD GAMING CORPORATION,

              Defendants–Appellees.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:14-CV-3040


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       Leslie Martin filed a petition in the Fourteenth Judicial District Court
of Louisiana, alleging that Boyd Racing, L.L.C. and Boyd Gaming Corp. (Boyd)
were liable for injuries she suffered after she slipped and fell in the parking lot
of Delta Downs, a hotel, racetrack, and casino owned and operated by Boyd.
Boyd successfully removed to federal court on the basis of diversity jurisdiction


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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and then moved for summary judgment. The district court granted summary
judgment for Boyd. Martin appealed. We affirm.
                                        I
      After parking her vehicle in the Delta Downs parking lot, Martin began
to walk around the front of her vehicle to reach “a little walkway” that led to
the facilities’ main entrance. She alleges that as she was walking by the front
of her car, she slipped and fell on algae that had accumulated on the ground.
It was daylight when the incident occurred. Martin testified that she “was
looking straight up to see where to go” and “didn’t pay attention,” but admitted
she would have seen the algae had she looked down. A Delta Downs employee,
who arrived after Martin fell and immediately inspected the area, testified that
the algae were “very visible.”        Another Delta Downs employee took
photographs of the area where the accident occurred.        Those photographs
plainly depict algae on the ground.
      Martin’s petition for damages alleged that Boyd, as owner and operator
of the facilities, was liable for Martin’s fall because it failed to maintain its
premises free from an unreasonably dangerous condition and failed to warn
patrons of the dangerous condition.         Boyd filed its motion for summary
judgment, seeking dismissal on the grounds that Martin could not prove that
the open and obvious condition that caused her accident presented an
unreasonable risk of harm, an essential element of her negligence claim under
Louisiana law.
      The district court granted summary judgment for Boyd. It concluded
Martin had “failed to designate specific facts showing . . . a genuine issue of
material fact as to whether the algae on the curb were unreasonably
dangerous”: “[t]he record reflects that the algae were readily visible” and
Martin failed to provide any evidence to the contrary. Thus, the district court
found that Martin had not established an essential element of her claim and
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granted summary judgment for Boyd. Martin appealed, contending that the
district court made a factual determination properly left to the jury.
                                            II
       We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. 1 Summary judgment is
proper if there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law. 2 The court considers evidence in the
record in the light most favorable to the non-moving party, drawing all
reasonable inferences in favor of the non-movant. 3
                                            III
       This case is governed by substantive Louisiana law. 4 The Louisiana
Merchant Liability Act provides that “[a] merchant owes a duty to persons who
use his premises to exercise reasonable care to keep his aisles, passageways,
and floors in a reasonably safe condition.” 5 That duty “includes a reasonable
effort to keep the premises free of any hazardous conditions which reasonably
might give rise to damage.” 6 The act further provides:
       In a negligence claim brought against a merchant by a
       person . . . for damages . . . because of a fall due to a condition
       existing in or on a merchant’s premises, the claimant shall have
       the burden of proving . . . all of the following:

       (1) The condition presented an unreasonable risk of harm to the
       claimant and that risk of harm was reasonably foreseeable[;]



       1 Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 275 (5th
Cir. 2014).
       2 Id. at 275-76 (citing FED. R. CIV. P. 56(a)).
       3 Thorson v. Epps, 701 F.3d 444, 445 (5th Cir. 2012).
       4 See 28 U.S.C. § 1332; James v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 69 (5th

Cir. 2014) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).
       5 LA. STAT. ANN. § 9:2800.6(A).
       6 Id.



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       (2) The merchant either created or had actual or constructive
       notice of the condition which caused the damage, prior to the
       occurrence[;]

       (3) The merchant failed to exercise reasonable care. . . . 7

Failure to prove any one element negates a plaintiff’s negligence action. 8 To
determine the first element of the statute—whether a condition presented an
unreasonable risk of harm—the Louisiana Supreme Court has adopted a risk-
utility balancing test containing four factors: “(1) the utility of the complained-
of condition; (2) the likelihood and magnitude of harm, including the
obviousness and apparentness of the condition; (3) the cost of preventing the
harm; and (4) the nature of the plaintiff’s activities in terms of social utility or
whether the activities were dangerous by nature.” 9 The second factor “focuses
on whether the dangerous or defective condition is obvious and apparent.” 10 If
the defective condition is obvious and apparent, a defendant generally does not
have a duty to protect against it. 11 To be considered open and obvious, the
hazard must “be one that is open and obvious to all, i.e., everyone who may
potentially encounter it.” 12
       Martin relies on language in Broussard v. State ex rel. Office of State
Buildings 13 to argue that the district court invaded the fact-finding province of
the jury when it concluded that the algae were obvious and apparent. In that
case, the jury found the defective condition at issue presented an unreasonable


       7 § 9:2800.6(B).
       8 Melancon v. Popeye’s Famous Fried Chicken, 10-1109, p. 3 (La. App. 3 Cir. 3/16/11);
59 So. 3d 513, 515.
       9 Bufkin v. Felipe’s La., L.L.C., 14-0288, p. 6 (La. 10/15/14); 171 So. 3d 851, 856.
       10 Broussard v. State ex rel. Office of State Bldgs., 12-1238, p. 10 (La. 4/5/13); 113 So.

3d 175, 184.
       11 Bufkin, 171 So. 3d at 856.
       12 Broussard, 113 So. 3d at 184.
       13 12-1238 (La. 4/5/13); 113 So. 3d 175.



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risk of harm and returned a verdict for the plaintiff. 14 The court of appeal
reversed, concluding that the jury’s factual determination that the condition or
defect presented an unreasonable risk of harm was manifestly erroneous
because the condition was open and obvious. 15 The Louisiana Supreme Court,
reversing the court of appeal, explained:
       We have described the question of whether a defect presents an
       unreasonable risk of harm as “a disputed issue of mixed fact and
       law or policy that is peculiarly a question for the jury or trier of the
       facts.” As a mixed question of law and fact, it is the fact-finder’s
       role—either the jury or the court in a bench trial—to determine
       whether a defect is unreasonably dangerous. 16
The court concluded that “[t]he record contain[ed] a reasonable factual basis to
support the jury’s finding the [defective condition] created an unreasonable
risk of harm” such that the jury’s determination was not manifestly
erroneous. 17        Martin     contends       that    Broussard       “‘unblurs’     the    line
between . . . determinations of fact and law” and “restores . . . the jury to the
role of fact finder.” In Martin’s view, the district court’s conclusion that the
algae were obvious and apparent “usurped the jury’s right to make that factual
finding” in contravention of Broussard.
       Martin misunderstands Broussard. In addition to the reasoning relied
on by Martin, the Broussard court acknowledged other decisions in which it
stated that “[i]t is the court’s obligation to decide which risks are unreasonable
based on the facts and circumstances of each case.” 18 It noted that in one of




       14  Id. at 178-79.
       15  Id. at 179.
        16 Id. at 183 (citation omitted) (quoting Reed v. Wal-Mart Stores, Inc., 97-1174, p.4 (La.

3/4/98); 708 So. 2d 362, 364).
        17 Id. at 179.
        18 Id. at 183 n.5 (quoting Pryor v. Iberia Parish Sch. Bd., 10-1683, p. 4 (La. 3/15/11);

60 So. 3d 594, 596.

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those cases, decided on a motion for summary judgment, “it was the court’s
obligation . . . to decide if there was a genuine issue of material fact as to
whether [the condition] created an unreasonable risk of harm.” 19 Thus, the
Broussard court recognized that on a motion for summary judgment, as here,
the court can decide that a condition does not present an unreasonable risk of
harm, as a matter of law.
      Martin also fails to acknowledge decisions after Broussard in which the
Louisiana Supreme Court clarified its holding in that case.                In Bufkin v.
Felipe’s Louisiana, L.L.C., the court explained that Broussard “should not be
construed as precluding summary judgment when no legal duty is owed
because the condition encountered is obvious and apparent to all and not
unreasonably dangerous.” 20 It also announced in Allen v. Lockwood that “[a]ny
reading of Broussard interpreting it as a limit on summary judgment practice
involving issues of unreasonable risk of harm is a misinterpretation of the
Broussard case.” 21 In both Bufkin and Allen, the court recognized that whether
a condition created an unreasonable risk of harm was an appropriate issue for
summary judgment. 22 In both cases, the court reversed the district court and
granted summary judgment for the defendants, concluding that the at-issue
conditions were “obvious and apparent to anyone who may potentially
encounter” them. 23
      In the instance case, Boyd produced evidence that the algae were obvious
and apparent, such that it owed no duty to Martin. Martin did not produce
any evidence to the contrary and has thus failed to make a showing sufficient




      19 Id.
      20 14-0288, p. 11 n.3 (La. 10/15/14); 171 So. 3d 851, 859 n.3.
      21 14-1724 (La. 2/13/15); 156 So. 3d 650, 652-53.
      22 Id.; Bufkin, 171 So. 3d at 859 n.3.
      23 Allen, 156 So. 3d at 653; accord Bufkin, 171 So. 3d at 858-59.

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to establish the existence of an essential element of her claim. Summary
judgment for Boyd was appropriate.


                              *        *         *
     For the foregoing reasons, we AFFIRM the decision of the district court.




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