     Case: 17-30625      Document: 00514316438         Page: 1    Date Filed: 01/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-30625
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 22, 2018
JONATHAN PETERS,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff – Appellant

v.

JAZZ CASINO COMPANY, L.L.C.; JCC FULTON DEVELOPMENT, L.L.C.,

                                                 Defendants - Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CV-3064


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Jonathan Peters (“Peters”) appeals from a summary
judgment granted in favor of the defendants in a slip-and-fall case brought
pursuant to diversity jurisdiction. Because the evidence does not raise a
genuine issue of material fact on an essential element of his negligence claim,
we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-30625     Document: 00514316438      Page: 2    Date Filed: 01/22/2018


                                  No. 17-30625

      I.     BACKGROUND
      At the time of the incident, Peters was attending a business convention
and staying at Harrah’s New Orleans Hotel.           Defendants-Appellees, Jazz
Casino Company, L.L.C. and JCC Fulton Development, L.L.C. (“Jazz Casino”),
own and operate the hotel. After midnight on March 13, 2015, Peters left his
hotel room to go out to eat. It was “drizzling a little bit” when he walked outside
the hotel. Peters testified that he was walking on a red brick sidewalk on the
hotel property, and his feet began to slide. Peters further testified that he
“became very frightened that [he] would fall, so [he] tried to navigate toward a
surface that was less slippery, and [he] saw a hose on the ground and
mistakenly thought it would be less slippery of a surface.” Peters stepped on
the hose and slipped and fell, breaking his wrist.          After the fall, Peters
immediately sought medical treatment for his injury at Tulane Medical
Center. Peters underwent surgery on his wrist and alleges permanent loss of
range of motion in his wrist.
      On March 11, 2016, Peters filed suit against Jazz Casino in Louisiana
state court, alleging a claim of negligence. Based on diversity of citizenship,
Jazz Casino removed the suit to federal district court in New Orleans. On May
30, Jazz Casino filed a motion for summary judgment. In response, Peters filed
a memorandum in opposition to the motion for summary judgment. On June
28, the district court granted the motion for summary judgment. Peters timely
filed a notice of appeal.
      II.    ANALYSIS
      Peters contends that the district court erred in holding that he failed to
raise a genuine issue of material fact with respect to whether the hose
presented an unreasonable risk of harm. This Court reviews a district court’s
ruling on a motion for summary judgment de novo, “viewing all evidence in the


                                        2
    Case: 17-30625         Document: 00514316438        Page: 3    Date Filed: 01/22/2018


                                       No. 17-30625

light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” In re Katrina Canal Breaches Litig., 495 F.3d
191, 205–06 (5th Cir. 2007). The moving party is entitled to summary judgment
if it “shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
      The Louisiana Merchant Liability Statute provides that a merchant has
a duty to persons who use his premises to exercise reasonable care to keep the
grounds in a reasonably safe condition. LSA–R.S. 9:2800.6A. 1 For a plaintiff
to prevail under this statute, he must show that: (1) the condition that created
an unreasonable risk of harm that was reasonably foreseeable; (2) the
merchant created or had constructive notice of the condition; and (3) the
merchant failed to exercise reasonable care. Id. at 9:2800.6B.
      Here, the district court ruled that Peters could not establish the first
element of the negligence claim because the hose was an open and obvious
hazard. Under Louisiana law, “defendants have no duty to protect against an
open and obvious hazard. If the facts of a particular case show that the
complained-of condition should be obvious to all, the condition may not be
unreasonably dangerous, and the defendant may owe no duty to the plaintiff.”
Eisenhardt v. Snook, 8 So.3d 541, 544 (La. 2009). In other words, a “landowner
is not liable for an injury which results from a condition which should have
been observed by the individual in the exercise of reasonable care, or which
was as obvious to a visitor as it was to the landowner.” Id. at 544–55.
      Peter asserts that his awareness of the hose was insufficient to show that
the defect was open and obvious to all. Even though the ultimate inquiry is
whether the defect was open and obvious to all, this Court has rejected the
contention that Louisiana law requires evidence of others’ awareness of the


      1   The Merchant Statute applies to hotel owners and operators. La. R.S. 9:2800.6C(2).
                                              3
    Case: 17-30625    Document: 00514316438      Page: 4   Date Filed: 01/22/2018


                                No. 17-30625

defect to make this showing. Butler v. Int’l Paper Co., 636 F. App’x 216, 218–
19 (5th Cir. 2016). Here, based on Peters’s testimony regarding his observation
of the hose and his sketched drawing of the hose and the surrounding area, we
are persuaded that there was no fact issue with respect to whether the hose
was open and obvious.
      Noting that the accident occurred at night, Peters suggests that the hose
was not visible to all. However, as the district court stated, Peter offered no
evidence to show that the lighting was insufficient. Moreover, photos in the
record show that there were gas lamps, street lights, and lights under the
awning at the scene of the accident.
      Peters also asserts that the hose was obstructing the walkway, which
constituted an unreasonable defect. However, his testimony at the deposition
does not support the assertion that the hose obstructed the walkway. In fact,
when asked if he had any recollection of the red hose obstructing someone
walking on the sidewalk, he responded: “I don’t recall that.” Thus, there is
insufficient evidence to create a fact issue as to whether the hose obstructed
the walkway.
      Finally, Peters contends that the combination of the slippery walkway
and the hose’s obstruction of the walkway created a dangerous and defective
condition that caused him to fall.         To support his argument that the
combination of these conditions created an unreasonable risk of harm, Peters
relies on the opinion in Jones v. Stewart, 203 So.3d 384 (La. App. 4 2016). In
that case, the unreasonable risk of harm was an unlit, unfinished, wet attic in
a residence. Id. at 395–96. The Louisiana court explained that although the
darkness in the attic was obvious, the wetness of the joists in the attic was
concealed by the darkness. Id. at 400. Thus, it held that the trial court erred
in holding the condition open and obvious. Id.


                                       4
    Case: 17-30625     Document: 00514316438      Page: 5   Date Filed: 01/22/2018


                                   No. 17-30625

      In contrast, here, as previously set forth, the evidence does not show that
the hose obstructed the walkway. Thus, there is no combination of conditions
under these circumstances. With respect to the slippery sidewalk, Peters
testified that it had been raining “on and off” during his stay that week, and it
was drizzling when he exited the hotel.           As such, the record evidence
demonstrates that the condition of the sidewalk was open and obvious. Cf.
Eisenhardt, 8 So.3d at 545 (explaining that “[w]hile the steps may have been
slippery due to water, not every minor imperfection or defect in a thing will
give rise to delictual responsibility”).
      III.   CONCLUSION
      For the above reasons, the district court’s judgment is AFFIRMED.




                                           5
