Heller v. Hillstone Restaurant Group, Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEBORAH HELLER 	CIVIL ACTION
VERSUS 	NO. 24-2295
HILLSTONE RESTAURANT GROUP, INC. 	SECTION: D(5)
ORDER AND REASONS
Before the Court are two Motions for Summary Judgment filed by Defendant
Hillstone Restaurant Group, Inc (“Hillstone”).1 Plaintiff Deborah Heller opposes the
Motions,2 and Hillstone has filed replies.3 After careful consideration of the parties’
memoranda, the record, and the applicable law, the Motions are DENIED.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
This case stems from a slip and fall at Houston’s Restaurant (“Houston’s”) on
St. Charles Avenue in New Orleans. On August 27, 2023, Plaintiff Deborah Heller
alleges that she slipped and fell in the women’s restroom at Houston’s.4 Plaintiff
advises that upon entering the restroom, the floor of the restroom was dry.5 However,
according 	to 	Heller, 	upon 	flushing 	the 	toilet 	in 	the 	handicapped 	stall 	and
subsequently exiting the stall, liquid began emerging from the restroom floor drain
while she was leaving the handicapped stall, which caused her to slip and fall on the
1 R. Docs. 31 and 37.
2 R. Docs. 33 and 39.
3 R. Docs. 34 and 40.
4 R. Doc. 33-1 at ⁋ 1.
5 R. Doc. 33-1 at ⁋ 4.
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floor in the women’s restroom.6 As a result of her fall, Plaintiff suffered injuries to
her spine that required medical treatment.7
Plaintiff originally filed this lawsuit in the Civil District Court for the Parish
of Orleans on August 16, 2024.8 In her petition, Plaintiff claimed that the liquid that
shot out of the restroom floor drain amounted to a defective, dangerous, and
hazardous condition which existed upon the premises owned and operated by
Hillstone (owner of Houston’s).9 Furthermore, she contended that Defendant’s failure
to properly maintain the safety of its premises constituted negligence which caused
plaintiff’s injuries to her back and spinal cord.10 The case was removed to this Court
on September 20, 2024 pursuant to 28 U.S.C. § 1332.11
A. The June 13, 2025 Motion for Summary Judgment12
Following removal, Defendant timely filed its first Motion for Summary
Judgment, which focuses on the second prong of the Louisiana slip-and-fall analysis,
regarding creation of the hazard or actual or constructive notice.13 In the motion,
Defendant contends that it is entitled to summary judgment on three grounds: (1)
that plaintiff has failed to produce any evidence that any alleged defect in the
sanitary/sewer line caused the alleged hazard, (2) that plaintiff relies too heavily on
6 R. Doc. 33-1 at ⁋ 2-3.
7 R. Doc. 1-2 at ⁋ 9.
8 R. Doc. 1-2.
9 R. Doc. 1-2, ⁋ 6
10 R. Doc. 1-2, ⁋ 6-7 (In his affidavit, expert witness Damien Serauskas noted two documented incidents
of backups in Houston’s sanitary sewer system in the year proceeding the Heller incident (R. Doc. 33-
2 ⁋ 5)).
11 R. Doc. 1.
12 R. Doc. 31.
13 R. Doc. 31-1.
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inadmissible 	evidence 	to 	defeat 	summary 	judgment, 	and 	(3) 	that 	plaintiff’s
arguments on actual and constructive knowledge are without merit. Defendant
argues that Plaintiff’s expert witness, engineer Damien Serauskas, merely opined on
potential causes of the sewage/sanitary line’s blockage, but at no point concluded as
to what the actual cause was in this instance.14 Since the sewage/sanitary line was
subsurface, Defendant claimed it lacked actual notice of the hazard prior to the
alleged 	accident.15 	Defendant 	also 	claims 	to 	have 	lacked 	constructive
notice/knowledge of the hazard since plaintiff has failed to meet the burden of proof
demanded by La. R.S. 9:2800(C)(1).16 Lastly, Defendant argues it did not create the
hazard because its conduct did not fall within the definition of “create” as defined by
the Fifth Circuit in Deshotel v. Wal-Mart Louisiana, LLC, in which the court held the
defendant must be “directly responsible” for the plaintiff’s injuries to be liable.17
Plaintiff responds that Fifth Circuit precedent does not require that the
defendant had actual or constructive notice of the hazard prior to plaintiff’s injuries.18
Rather, Plaintiff contends that Defendant’s failure in maintenance “created” the
injury as the Fifth Circuit defined in Deshotel.19 Plaintiff argues that a failure to
remedy an area the employees were responsible for maintaining, rather than a direct
14 R. Doc. 31-3 at p. 9-13 (In his deposition, Serauskas confirms that he has expressed no opinion on
what actually caused the clog in this case (R. Doc. 31-14 at p. 11)).
15 R. Doc. 31-2, ⁋ 20.
16 R. Doc. 31-3 at p. 17.
17 R. Doc. 31-3 at p. 20 (quoting Deshotel v. Wal-Mart Louisiana, LLC, 850 F.3d 742 (5th Cir. 2017)).
18 R. Doc. 33 at p. 3-5.
19 Id. (The court in Deshotel: “When a defendant ‘maintains its own floors, the [plaintiffs] are not
required to prove that it had notice or constructive notice of the possible [hazard]. If there [is] a
[hazard], [defendant] created it, thus, the notice requirement of La. R.S. 9:2800.6 does not apply...’”
(Deshotel v. Wal-Mart Louisiana, L.L.C., 850 F.3d 742, 747 (5th Cir. 2017)).
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action, is sufficient to constitute the creation of the hazard that resulted in Plaintiff’s
injuries.20 Plaintiff maintains that Houston’s decision to avoid scoping the pipes
beneath the restroom in favor of temporary clog removals meets the standard of
hazard creation in the eyes of the Fifth Circuit.21
In its Reply, Hillstone asserts that the Plaintiff has failed to establish
Defendant’s alleged negligence as the sole potential cause of her injury.22 Defendant
also claims that the Plaintiff relied on hearsay evidence from a witness, Daniel
Morris, claiming that Hillstone allegedly had prior issues with flooding in its
restroom.23 Defendant further alleges that the Plaintiff’s argument regarding actual
and constructive notice is meritless; La. R.S. 9:2800.6(B)(2)’s notice prong requires a
plaintiff to prove that the substance remained on the floor for such a time that the
Defendant would have discovered its existence through ordinary care, a burden they
assert Plaintiff has failed to carry.24
B. The October 12, 2025 Motion for Summary Judgment25
Defendant filed a second Motion for Summary Judgment on October 12, 2025.26
While its first Motion focused on the notice prong of La. R.S. 9:2800.6(B), this Motion
concerns the unreasonable risk of harm prong, La. R.S. 9:2800.6(B)(1).27 Defendant
20 R. Doc. 33 at p. 4 (In his affidavit, Serauskas noted that the two previous backup incidents occurred
in the same section of sewer piping as in this incident (R. Doc. 33-2 ⁋7)).
21 R. Doc. 33 at p. 9.
22 R. Doc 34 at p. 3.
23 R. Doc. 34 at p. 6 (In his deposition, Morris states his belief that Heller had consumed multiple
alcoholic beverages the night of the incident (R. Doc. 34-1 at pp. 5-7)).
24 R Doc. 34 at p. 9.
25 R. Doc. 37.
26 Id.
27 R. Doc. 37-3 at p. 2.
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argues 	that 	Plaintiff 	cannot 	provide 	evidence 	that 	demonstrates 	that 	an
unreasonable risk of harm existed when Plaintiff slipped on the floor of the women’s
restroom.28 Relying on the Louisiana Supreme Court’s holding in Farrell v. Circle K
Stores, Inc, Defendant states that the factors put forward by the court regarding what
hazards constituted an “unreasonable risk of harm,” point to a finding that there was
no unreasonable risk of harm in the present case.29 Defendant also points to the
report of its expert, Engineer Kevin Vanderbrook, who opines that the coefficient of
friction of the floors, even when wet, does not present a hazard to a person exercising
reasonable care.30 As a result, Defendant contends that it is entitled to summary
judgment due to the alleged hazard not presenting an unreasonable risk of harm
under Louisiana law.
Plaintiff responds that the risk-utility factors explained by the Louisiana
Supreme Court in Farrell demonstrate that there is a genuine issue of material fact
as to whether the liquid on the floor of the women’s restroom created an unreasonable
risk of harm.31 Plaintiff argues that the hazard here and that the magnitude of the
harm was large because of the injuries that one could—and did—suffer from slipping
and falling.32
Defendant replies that its expert’s testimony regarding the coefficient of
friction is properly before the Court on summary judgment and has not been
28 Id. at p. 8.
29 359 So.3d 467; R. Doc. 37-3 at pp. 8-9.
30 R. Doc. 37-3 at p. 4.
31 R. Doc. 39 at pp. 2-3.
32 Id. at p. 4.
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challenged by Plaintiff. Furthermore, it argues that the occurrence of the accident, in
and of itself, is not sufficient proof that the puddle on the floor presented an
unreasonable risk of harm.33 Lastly, Defendant emphasizes that the Farrell factors,
when applied to the present case, support summary judgment because Plaintiff has
failed to present evidence that she can prove that the puddle constituted an
unreasonable risk of harm.34
II. 	LEGAL STANDARD
Summary judgment is appropriate under Federal Rule of Civil Procedure 56
“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.”35 A dispute is “genuine” if it is
“real and substantial, as opposed to merely formal, pretended, or a sham.”36 Further,
a fact is “material” if it “might affect the outcome of the suit under the governing
law.”37 	When assessing whether a genuine dispute regarding any material fact
exists, the Court considers “all of the evidence in the record but refrain[s] from
making credibility determinations or weighing the evidence.”38 While all reasonable
inferences must be drawn in favor of the nonmoving party, a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions, or “only
33 R. Doc. 40 at p. 3.
34 Id. at pp. 4-5.
35 FED. R. C IV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986).
36 Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell,
149 F.2d 335, 337 (5th Cir. 1945)).
37 Anderson, 477 U.S. at 248.
38 Delta & Pine Land Co. v. Nationwide Agribus. Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008)
(citations omitted).
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a scintilla of evidence.”39 Instead, summary judgment is appropriate if a reasonable
jury could not return a verdict for the nonmoving party.40
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.”41 	The
non-moving party can then defeat summary judgment by either submitting evidence
sufficient to demonstrate the existence of a genuine dispute of material fact or by
“showing that the moving party’s evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party.”42 If, however,
the nonmoving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the nonmoving
party’s claim.43 The burden then shifts to the nonmoving party who must go beyond
the pleadings and, “by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’”44
III. 	ANALYSIS45
Both parties agree that Louisiana law applies to this matter as the court sits
39 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
40 Id. at 399 (citing Anderson, 477 U.S. at 248).
41 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991).
42 Id. at 1265.
43 See Celotex, 477 U.S. at 322–23.
44 Id. at 324 (quoting FED. R. C IV. P. 56(e)).
45 This matter is before the Court on diversity jurisdiction, so the Court applies Louisiana law. See
Weatherly v. Pershing, LLC, 945 F.3d 915, 925 (5th Cir. 2019).
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in diversity. The parties further agree on the substantive law applicable to the
present case: Louisiana Revised Statute 9:2800.6. Louisiana’s slip-and-fall law, La.
R.S. 9:2800.6, creates a duty for merchants to persons on his premises, stating
merchants must exercise reasonable care in maintaining safe conditions in aisles,
passageways, and floors.46 La. R.S. 9:2800.6(B) establishes the burden of proof for a
negligence claim against merchants for persons lawfully on the premises and requires
that plaintiffs prove that
(1) the condition presented an unreasonable risk of harm to the claimant and
that risk was reasonably foreseeable,
(2) the merchant either created the hazard or had actual or constructive notice
of the condition which caused the injury, and,
(3) the merchant failed to exercise reasonable care.47
The first Motion for Summary Judgment addresses the second prong: whether
Hillstone created the hazard or had actual or constructive notice of the hazard.48
“Constructive notice” refers to a situation in which the claimant has proven that the
condition existed for a period of time sufficient for the merchant to have discovered it
with reasonable care.49 The second Motion for Summary Judgment addresses the
first prong: whether the liquid on the floor created an unreasonable risk of harm.50
Each of the Motions will be discussed in turn.
46 La. R.S. 9:2800.6(A).
47 La. R.S. 9:2800.6(B)(1)-(3).
48 R. Doc. 31.
49 La. R.S. 9:2800.6(C)(1).
50 R. Doc. 37.
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A. There is a genuine issue of material fact regarding whether Hillstone
had actual or constructive notice of the condition that caused the
injury.
The second prong of Louisiana’s “slip-and-fall” statute, La. R.S. 9:2800.6,
requires a plaintiff to provide “proof that the merchant is directly responsible for the
spill or other hazardous condition,” which can be achieved by proving either that the
defendant created or had actual or constructive notice of the hazard.51 Both the act
of creating a hazard and the failure to act upon a known hazard each constitute
“created” for liability purposes under La. R.S. 9:28000.6(B).,
While Defendant argues that Hillstone had neither actual nor constructive
notice of the hazard and did not create the hazard, Plaintiff contends that the staff of
Houston’s was aware that the pipes beneath the women’s restroom were continually
getting backed up and opted to perform temporary solutions rather than hire a
plumbing company to conduct a thorough inspection.52 Defendant relies on the Fifth
Circuit’s reasoning in Deshotel. In that case, the trial court granted Wal-Mart’s
Motion for Summary Judgment; the Fifth Circuit reversed, explaining that the store
manager’s deposition testimony that the leaky roof was a ”known issue” and that
“anybody in the building . . .would be on the lookout for new leaks that had been
identified or marked”53 when it rained, as well as documentary evidence of a roofing
contractor, precluded summary judgment.54 Defendant argues that, unlike the leaky
51 Deshotel v. Wal-Mart Louisiana, LLC, 850 F.3d 742, 747 (5th Cir. 2017) (quoting Ross v.
Schwegmann Giant Super Markets, Inc., 734 So.2d 910, 913 (La. 1st Cir.), writ denied, 748 So.2d 444
(1999)).
52 R. Doc. 31-3 at p. 17; R. Doc. 1-2 at ⁋ 6-7.
53
54 See 850 F.3d at 746; R. Doc. 31-3 at p. 20.
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roof in Deshotel, the issue in the women’s restroom in Houston’s was not known by
the employees.55 Plaintiff, however, points to the fact that there were two instances
of piping problems within a year of the incident.56
Defendant, relying on Leger v. Wal-Mart Louisiana, LLC counters that the
Fifth Circuit has held that “conjecture about past leaks” cannot form the basis of
liability under the Louisiana’s slip-and-fall statute.57 Defendant’s reliance on Leger
for this argument is somewhat misplaced. The Court’s analysis in Leger focused on
the amount of time that the water was on the floor prior to the Plaintiff’s slipping, as
part of the analysis regarding constructive notice.58 Here, Plaintiff’s argument is not
that the water remained on the floor for a long period of time but that Defendant had
prior knowledge of plumbing issues with the women’s restroom and failed to take any
action to remedy the existing issues. Defendant also relies on the court’s ruling in
Bearb v. Wal-Mart Louisiana, LLC, in which the Fifth Circuit affirmed summary
judgment in the absence of “any facts in the record to support their claims.”59 Here,
unlike the plaintiff in Bearb, Plaintiff has provided record evidence, more than mere
speculation, regarding the source of hazard that Plaintiff claims caused her to slip
and fall.60 Lastly, Defendant relies on the Fifth Circuit’s holding in Fraise v. Wal-
Mart Louisiana, LLC, in which the court affirmed summary judgment when the sole
55 R. Doc. 31-3 at pp. 20-23.
56 R. Doc. 33 at pp. 4-5.
57 R. Doc. 31-3 at p. 21 (quoting Leger v. Wal-Mart Louisiana LLC, 343 F. App'x 953, 955 (5th Cir.
2009) (unpublished)).
58 See Leger, 343 F. App'x at 954-55.
59 Bearb v. Wal-Mart Louisiana Liab. Corp., 534 F. App'x 264, 265 (5th Cir. 2013) (unpublished).
60 See, e.g., R. Doc. 33-2, Report of Damien Serauskas, PE; R. Doc 33-3, Deposition of Daniel Morris, at
p. 4 (“I believe there was like an example shown of like the water coming out also with another flush.”).
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evidence produced by plaintiff in response to summary judgment was an affidavit of
a former Wal-Mart employee. Here, the record contains evidence of more than mere
speculation regarding the source of the hazard Plaintiff alleges caused her to fall.61
Defendant conceded that there were two prior incidents of sewage backing up
into the women’s restroom in the year prior to Plaintiff’s fall, with the most recent
one 	occurring 	approximately 	nine 	months 	prior 	to 	the 	incident 	in 	question.62
Although Defendant’s 30(b)(6) representative Kyle Frasure testified that each of
these times “a defined obstacle came out of the lines that should not have been there
in the first place,”63 Plaintiff’s expert Damien Serauskas stated that, in his opinion,
Hillstone’s level of operational sophistication in regards to their maintenance for its
grease waste lines suggested that “[D]efendant should have recognized the need for
similar diligence regarding its sanitary sewer piping after multiple sewage backup
incidents.”64 Additionally, Serauskas opined that the run of piping in which he found
bellies 	upon 	his 	inspection 	“is 	the 	same 	piping 	cleared 	in 	the 	two 	incidents
immediately preceding the Heller incident,” which “can lead to recurring blockages
and affect the integrity and performance of the overall plumbing sewer system.”65
The statements of Plaintiff’s expert provide evidence regarding an awareness of
plumbing issues creating sewage backup “in the area where Plaintiff fell.”66 This
61 Fraise v. Wal-Mart Louisiana LLC, 231 F. App'x 331, 333 (5th Cir. 2007) (unpublished).
62 R. Doc. 31-3 at p. 7.
63 R. Doc. 31-10, Deposition of Kyle Frasure, at p. 10.
64 R. Doc. 33 at pp. 2-3.
65 R. Doc. 33-2, Report of Damien Serauskas, PE, at p. 7.
66 Walker v. Wal-Mart Stores, Inc., No. CV 15-2169, 2016 WL 8716478, at *3 (W.D. La. Nov. 4, 2016).
Plaintiff further relies on the testimony of her companion Daniel Morris to demonstrate that
Defendant created the hazard. In his deposition, Morris testified that a Houston’s employee (whom he
believes was the manager) stated that the plumbing issue in the women’s restroom had been recurring,
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issue of Houston’s knowledge of sewer problems is a genuine dispute regarding a
matter that will likely affect the outcome of the trial under Louisiana law. Because
of 	this 	genuine 	issue 	of 	material 	fact, summary 	judgment 	regarding 	whether
Hillstone created the hazard at issue or had constructive notice of the hazard must
be denied.
B. There is a genuine dispute of material fact as to whether liquid on
the floor of the restroom constituted an unreasonable risk of harm.
Whether a hazard constitutes “an unreasonable risk of harm” under Louisiana
law requires courts to balance “the gravity and risk of harm against the individual
and societal rights and obligations, the social utility, and the cost and feasibility of
repair.” 	This risk-utility balancing test has been further distilled into four factors
that courts use to analyze whether the hazard presents an unreasonable risk of harm:
“(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.”67 The Court will address
each of these factors in turn.
Following its consideration of the four factors of the risk utility balancing test,
and that the staff were actively trying to address it. (R. Doc. 33 at pp. 2-3). Nick Seigel, whom
Defendant believes is the person to whom Morris is referring, testified that he was unaware of any
prior plumbing issues with the women’s restroom. See R. Doc. 31-8. “Hearsay is not competent
summary judgment evidence, unless its proponent can show that the statement can be presented in
an admissible form at trial.” Miller v. Michaels Stores, Inc., 98 F.4th 211, 218 (5th Cir. 2024) (internal
citations omitted). Because Plaintiff, as the proponent of the statement, has not demonstrated that
the statement can be presented in an admissible form at trial, the Court does not take the statement
into account in its analysis of the pending Motion.
67 Farrell v. Circle K Stores, Inc., 359 So. 3d 467, 474 (La. 3/17/23).
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the Court then turns its attention to the Fed. R. Civ. P. 56 standard for summary
judgment.
1. 	Utility of the Complained-of Condition
For the utility of the complained-of condition, the first prong, a court will look
to see whether the condition was intended or present by design. 	If a court were to
find that the condition was intended or present by design, it would likely have some
kind of utility, which weighs against a finding of an unreasonable risk of harm. Both
parties acknowledge that a puddle of water in the women’s restroom at Houston’s is
neither intended nor present by design.68 As a result, this factor weighs in favor of a
finding that the hazard here constituted an unreasonable risk of harm.
2. 	The Likelihood and Magnitude of Harm
As to the second prong, courts look to both the likelihood and magnitude of the
harm and how obvious and apparent a hazard was because “a defendant generally
does not have a duty to protect against that which is obvious and apparent.”69 If the
condition is “likely to cause harm, that weighs in favor of finding it unreasonably
dangerous.”70 Courts typically consider the size, context, and location of the condition,
as well as the accident history” when evaluating this prong of the analysis.71
The parties spend most of their briefing arguing this factor. Here, Defendant relies
on the Louisiana Supreme Court’s finding in Farrell that a person who encounters a
68 R. Doc. 37-3 at pp. 9-10; R. Doc. 39 at p. 3.
69 Bufkin v. Felipe's Louisiana, LLC, 171 So. 3d 851, 856 (La. 10/15/14).
70 Farrell, 359 So. 3d at 474.
71 Latour v. Steamboats, LLC, 371 So. 3d 1026, 1036 (La. 10/20/23).
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pool of water would not conclude that it presents a likelihood of great harm.72 Plaintiff
maintains that sewage water unexpectedly pouring from a bathroom drain is a
hazard that is likely and which could cause great harm.73
Defendant further relies upon the Louisiana Second Circuit’s holding in
Bearden v. K&A that there must be evidence that a puddle was slippery in order for
the puddle to be found to create an unreasonable risk of harm.74 Defendant points to
the report of Engineer Kevin Vanderbrook, who opined that, even when wet, the floor
of the Houston’s restroom had a dynamic coefficient of friction of 0.61, which exceeds
minimum 	engineering 	standards.75 	Furthermore, 	Defendant 	emphasizes 	that
Vanderbrook opined that “[e]ven when wet, these floors would not represent a hazard
to persons exercising reasonable care.”76 Plaintiff responds that this expert analysis
“ignores the element of surprise” in the case and Plaintiff’s reflex to avoid the sewage
present on the floor.77 The Court agrees with Plaintiff that the expert’s opinion
regarding the coefficient of friction does not foreclose the fact that Plaintiff, in her
surprise, 	may 	have 	slipped 	even 	while 	exercising 	“reasonable 	care.” 	Such 	a
determination as to whether reasonable care was exercised is a factual dispute firmly
in the province of the jury and is inappropriate for disposition on summary judgment.
Plaintiff also relies on the evidence of two prior incidents where Houston’s
contract plumber was summoned to address backups in the sewer lines to further
72 R. Doc. 37-3 at p. 10 (citing Farrell, 359 So. 3d at 478-79).
73 R. Doc. 39 at pp. 2, 4.
74 R. Doc. 37-3 at p. 10 (citing Bearden v. K & A of Monroe, LLC, 399 So.3d 515 (La.App. 2nd Cir.
7/17/24)).
75 R. Do. 37-9, Report of Kevin Vanderbrook, at p. 8.
76 Id.
77 R. Doc. 39 at p. 4.
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suggest that this factor weighs in favor of a strong likelihood of magnitude of harm.
Regarding the accident history, there is a history of prior plumbing incidents in the
Houston’s restroom, including two accidents that occurred in the year prior to
Plaintiff’s fall.78 Plaintiff further argues that the magnitude of potential harm to be
suffered as a result of the hazard is large. Plaintiff points out that she required spinal
surgery after her fall in the restroom.79 Because the issues with sewage back-up were
relatively infrequent and temporally distant from this incident, this factor tilts in
favor of finding that the sewage did not present an unreasonable risk of harm.
3. 	The Cost of Preventing the Harm
Regarding the third prong, the fact-finder must “balance the risk of harm
against the cost and feasibility of repair.”80 	In the present case, there has been no
summary judgment evidence addressing the exact cost and feasibility of repair.
However, Plaintiff, in response to Defendant’s motion, points to the affidavit of
Engineer Damien Serauskas, who explains that, in his opinion, “the appropriate
engineering 	response 	following 	repeated 	backups 	is 	to 	conduct 	a 	full 	camera
inspection of the line to identify any underlying structural defects.”81 While there is
no evidence of the exact dollar figure required to repair the alleged issue with the
plumbing, Plaintiff has pointed to record evidence that demonstrates that there was
a feasible repair for the alleged issue. In the absence of evidence regarding the exact
78 R. Doc. 37-2, 39-1 at ¶ 8. (“In the year prior to the subject accident, there were two (2) incidents
where Houston’s contract plumber was summoned to address backups in the sewer/sanitary lines, with
the most recent one occurring nearly nine (9) months prior to the subject incident.”).
79 R. Doc. 39 at p. 4.
80 Broussard v. State ex rel. Off. of State Bldgs., 113 So. 3d 175, 192 (La. 4/5/13).
81 R. Doc. 39-2, Affidavit of Damien Serauskas, P.E., at ¶ 9.
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dollar figure of preventing the harm, however, the “Court is unable to consider this
factor in applying the risk/utility balancing test.”82
4. 	The Nature of Plaintiff’s Activities
Lastly, examining the fourth prong requires a “consideration of the nature of
the plaintiff's activity in terms of social utility or whether the activities were
dangerous by nature.”83 Plaintiff was injured after using the restroom, an important
activity that is not dangerous in nature. While Defendant argues that even an
important activity that is not dangerous in nature “does not weigh heavily as a
consideration in determining an unreasonably dangerous condition,” the social utility
is nonetheless a factor that this Court must examine.84 The fourth factor points
toward a finding that the sewage puddle presented an unreasonable risk of harm.
After considering the factors of the risk-utility balancing test and considering
the Fed R. Civ. P. 56 standard for summary judgment,85 the Court finds that there
are 	genuine 	issues 	of 	material 	fact 	that 	preclude 	a 	determination 	that 	the
complained-of hazard did not constitute an unreasonable risk of harm. Indeed,
especially as to the likelihood of harm, there are genuine disputes of material fact as
to whether the “[D]efendant breached a duty owed” to Plaintiff in this case, and the
Court concludes that the Plaintiff may be able to prove that Defendant breached the
duty owed to her at trial.86 Under Louisiana law, whether the Defendant breached a
82 Farrell v. Circle K Stores, Inc., 359 So. 3d 467, 479 (La. 3/17/23).
83 Id.
84 Id.
85 “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.”
86Broussard, 113 So. 3d at 185; see also Farrell, 359 So. 3d at 478 (“Summary judgment, based on the
absence of liability, may be granted upon a finding that reasonable minds could only agree that the
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duty owed to Plaintiff will likely affect the outcome of the suit; thus, it is material.
For the foregoing reasons, the Court denies summary judgment as to whether the
sewage created an unreasonable risk of harm.
IV. 	CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the Defendant’s Motions for Summary
Judgment87 are DENIED.
New Orleans, Louisiana, January 8, 2026.
_____________________________
WENDY B. VITTER
United States District Judge
condition was not unreasonably dangerous; therefore, the defendant did not breach the duty owed. In
such instance, the plaintiff would be unable to prove the breach element at trial.”).
87 R. Docs. 31 and 37.
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