     Case: 17-30711      Document: 00514418740         Page: 1    Date Filed: 04/06/2018




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

                                                                                   FILED
                                    No. 17-30711                                April 6, 2018
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk

ANTHONY R. LUNA, Individually and on behalf of Mikey Luna, on behalf of
Ivory Luna, on behalf of Jordan Luna, on behalf of Grace Luna; DANA D.
LUNA, Individually and on behalf of Mikey Luna, on behalf of Ivory Luna, on
behalf of Jordan Luna, on behalf of Grace Luna,

                                                 Plaintiffs - Appellants

v.

P N K LAKE CHARLES, L.L.C., doing business as L’Auberge Lake Charles;
ZURICH AMERICAN INSURANCE COMPANY,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:16-CV-1099


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants Anthony and Dana Luna—both individually and
on behalf of their minor children—brought suit against Defendants–Appellees
PNK Lake Charles, L.L.C., and Zurich American Insurance Company, alleging


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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that PNK’s negligence led to a wheelchair defect that caused injuries to
Anthony Luna. The defendants filed for summary judgment, which the district
court granted. We AFFIRM.
                                       I.
      In July 2015, Anthony and Dana Luna, along with their minor children,
were guests at a casino hotel of PNK Lake Charles, L.L.C. (“PNK”). As Anthony
Luna’s mobility was limited by a recent knee surgery, a PNK employee
provided him with a wheelchair, and one of his children began wheeling
Anthony to their family’s hotel room. Anthony did not immediately notice
anything wrong with the wheelchair when he sat down, but after his son
started pushing, the wheelchair stopped and jammed Anthony’s heel into the
ground. Anthony then stood up and looked at the wheelchair, finding nothing
out of place. However, as Anthony again rode in the wheelchair, the wheelchair
again abruptly stopped, jamming his foot into the ground. As a result of this
second stop, the front left wheel broke in half and folded up beneath itself.
      In August 2015, Anthony and Dana Luna—both individually and on
behalf of their minor children—filed a Petition for Damages against PNK,
Keith Henson, and Zurich American Insurance Company (“Zurich”) in
Louisiana state court. Henson was the PNK general manager of the premises
where the incident occurred. Zurich is PNK’s liability insurer. The plaintiffs
alleged that the defendants’ negligence contributed to the incident and that
the incident further injured Anthony’s left knee and hindered his post-surgery
recovery process. They sought damages pursuant to Louisiana Civil Code
Articles 2315 and 2317. In July 2016, the defendants removed the suit to
federal court based on diversity jurisdiction. The plaintiffs then filed a motion
to remand. The district court denied their motion to remand and further
dismissed their claims against Henson without prejudice, as Henson was a
non-diverse party. In June 2017, the remaining defendants (i.e., PNK and
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Zurich) filed a motion for summary judgment, which the district court granted.
The plaintiffs timely appealed.
                                       II.
      We review a district court’s grant of summary judgment de novo. Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008) (citing Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th Cir. 2002)).
Summary judgment is appropriate if “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). Summary judgment is proper if “the nonmoving party has
failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
      “In a diversity case such as this one, we apply state substantive law.”
Wiltz v. Bayer CropScience, Ltd. P’ship, 645 F.3d 690, 695 (5th Cir. 2011)
(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The plaintiffs alleged
that the defendants are liable based on a theory of custodial liability pursuant
to Louisiana Civil Code Articles 2315, 2317, and 2317.1. To prevail on their
custodial liability claim, the plaintiffs must prove that “(1) the object was in
[PNK’s] custody; (2) the thing contained a vice or defect which presented an
unreasonable risk of harm to others; (3) the defective condition caused the
damage; and (4) [PNK] knew or should have known of the defect.” Cormier v.
Dolgencorp, Inc., 136 F. App’x 627, 627–28 (5th Cir. 2005) (citing La. Civ. Code
arts. 2317, 2317.1).
      “[T]he question of whether a custodian or owner of a thing has
constructive knowledge of a defect in that thing is inextricably linked with the
exercise of reasonable care.” Dawson v. Rocktenn Servs., Inc., 674 F. App’x 335,
340 (5th Cir. 2016) (citing Walters v. City of West Monroe, 162 So. 3d 419, 424
(La. Ct. App. 2015)). “Louisiana courts have traditionally analyzed the exercise
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of reasonable care as consisting of two separate components.” Id. (collecting
cases). The owner or custodian of a thing must (1) “take reasonable steps to
discover defects in the thing that create an unreasonable risk of harm” and
(2) “take reasonable steps to protect against injurious consequences resulting
from defects in the thing that create an unreasonable risk of harm.” Id.
(collecting cases). “When an owner or custodian of a thing fails to exercise
reasonable care to discover a defect in that thing, Louisiana law imputes the
owner or custodian with knowledge of the defect if the defect is of such a
character or has existed for such a period of time that a reasonable custodian
or owner would have discovered it.” Id. (citing Dufrene v. Gautreau Family,
LLC, 980 So. 2d 68, 80 (La. Ct. App. 2008)); see Wells v. Town of Delhi, 216 So.
3d 1095, 1099 (La. Ct. App. 2017).
      The district court concluded that there was no actual or constructive
knowledge of the wheelchair defect. On appeal, the plaintiffs argue that there
was constructive knowledge because PNK failed to take reasonable care to
inspect their wheelchairs and did not have any policies regarding inspections
and maintenance of their wheelchairs. Their argument fails. Even assuming
arguendo that the lack of inspection constituted a lack of reasonable care to
discover the defect, there is constructive knowledge only if PNK would have
discovered the defect. Here, there is no evidence that PNK would have
discovered the defect with an inspection. Anthony Luna inspected the
wheelchair himself after it jammed his foot the first time and did not discover
anything wrong with it. Cf. Dawson, 674 F. App’x at 340–41 (finding that the
plaintiffs failed to provide evidence that the alleged clog in the pressure-release
line that caused the accident would have been detected by a reasonable
inspection, and noting that the injured person had checked and did not see a
clog prior to the accident).


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      The plaintiffs cite two cases to support their contention that a failure to
inspect is sufficient to overcome summary judgment with respect to
constructive knowledge: Walters, 162 So. 3d 419, and Crooks v. Sw. La. Hosp.
Assoc., 97 So. 3d 671 (La. Ct. App. 2012). These cases are distinguishable. First,
the court in Walters expressly stated that “[l]ack of inspection is [] only one
factor by which the factfinder might determine that the defect existed for such
a length of time that the [defendant] should have discovered the defect with
the exercise of reasonable care.” 162 So. 3d at 424 (citing Graham v. City of
Shreveport, 31 So. 3d 526, 530–31 (La. Ct. App. 2010)). Second, both cases
involve evidence that an inspection would have revealed the defect. See
Walters, 162 So. 3d at 425 (finding that in addition to the lack of inspection,
“damage to the three footings” and “rusted bolts for the footings” provided
evidence of constructive notice); Crooks, 97 So. 3d at 678–79 (finding that the
defendant should have known of the defect in the sofa bed because the missing
springs would have been visible in an inspection). Unlike the situation in
Walters and Crooks, here, there were no obvious signs of a wheelchair defect.
      The district court also concluded that the plaintiffs’ claims do not
survive under the doctrine of res ipsa loquitur. “Res ipsa loquitur is a rule of
circumstantial evidence which allows [the] court to infer negligence on the part
of [PNK] if the facts indicate [PNK’s] negligence, more probably than not,
caused the injury.” Salvant v. State, 935 So. 2d 646, 659 (La. 2006) (collecting
cases). “Application of the doctrine is defeated if an inference that the accident
was due to a cause other than [PNK’s] negligence could be drawn as reasonably
as one that it was due to [its] negligence.” Id. (quoting Montgomery v.
Opelousas Gen. Hosp., 540 So. 2d 312, 320 (La. 1989)). This doctrine does not
relieve the plaintiffs from proving all of the elements necessary for recovery
but simply allows them to meet the burden of proof by using circumstantial
evidence. See Riggs v. Opelousas Gen. Hosp. Tr. Auth., 997 So. 2d 814, 818 (La.
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Ct. App. 2008) (quoting Cangelosi v. Our Lady of the Lake Med. Ctr., 564 So.
2d 654, 665–66 (La. 1989)). The district court found that res ipsa loquitur could
not be used to establish the element of actual or constructive knowledge
because the inference that the accident was caused by a hidden defect is just
as likely as the inference that it was caused by a defect that could have been
detected through inspection. See Salvant, 935 So. 2d at 659 (citing
Montgomery, 540 So. 2d at 320).
      On appeal, the plaintiffs contend that the district court erred with regard
to its res ipsa loquitur ruling, and that the defect was not hidden and a lack of
inspection triggers a presumption that PNK should have learned of the defect.
These arguments are without merit. As explained above, Anthony Luna did
not discover the defect after an inspection. This suggests that the defect was
hidden, or that it is at least as likely that the defect was hidden as it was
detectable through inspection. See Salvant, 935 So. 2d at 659 (citing
Montgomery, 540 So. 2d at 320). Further, as explained above, the lack of
inspection by itself is not sufficient to prove constructive notice. See Walters,
162 So. 3d at 424.
                                      III.
      For the foregoing reasons, we AFFIRM the district court’s grant of the
defendants’ motion for summary judgment.




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