Defending Negligence Claims: Open and Obvious in New Orleans
Written by Kristin Lausten
Louisiana property owners can be considered negligent if they allow or create hazards that cause injury related to their land or buildings. These rules are codified La. C.C. §§ 2315, 2317, 2317.1 and 2322. See also La. C.C. §§ 2315 and 2317 for general duty of care for individuals and La. R.S. § 9:2800.6 (heightened duty of merchants within stores). Each Article is different and under Louisiana case law, the courts have used different words and given different lists of elements. In the end, imposition of liability under each article requires proof of the standard elements of negligence: duty, breach, causation and damage.
Take Article 2322 for example. It states in pertinent part:
“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care …”
The Louisiana Supreme Court, in the case of Broussard v. State, 12-1238 (La. 2013), 113 So.3d 175, then listed these as the elements needed to be proven
- Ownership of the building
- Owner knew or, in the exercise of reasonable care, should have known of the ruin or defect
- Injury could have been prevented by exercise of reasonable care
- Owner failed to exercise such reasonable care; and
- Causation
The court added that “… our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm.”
Open and Obvious Defense in Louisiana
Under the case law, the defense of open and obvious comes into play with respect to the question of “unreasonable risk of harm.” To determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test:
- The utility of the complained-of condition,
- The likelihood and magnitude of harm, including the obviousness and apparentness of the condition,
- The cost to prevent the harm, and
- The nature of the plaintiff’s activities in terms of social utility or whether the activities were dangerous by nature.
Bufkin v. Felipe’s La., LLC, 14-288 (La. 2014), 171 So.3d 851.
If skilled and experienced defense counsel can show that the condition was open and obvious, counsel may be able to obtain dismissal of the case. A recent example is the case of Morel v. Cheema Properties, LLC, 16-666 (La. App. 5 Cir. 2017). An elderly woman, walking with a cane, went into a gas station to pay for her gas. When she exited the store, she saw that there were two hoses on the ground that were blocking her way. The hoses were separated and had a gap between them. She could not remember whether she saw the hoses when she entered the station. She tried to move the hoses with her cane, but was unsuccessful. As she tried to go over and navigate the hoses, she caught her foot and fell, injuring herself.
In defending the case, defense counsel claimed that the hoses were open and obvious. The court agreed and the plaintiff’s suit was dismissed. The Fifth Circuit Court of Appeals affirmed. The court pointed to these facts:
- Plaintiff said she saw the hoses and that they were separated
- Plaintiff was aware that the hoses were a “problem”
- Plaintiff chose to go forward with her cane and fell
- Plaintiff could have avoided the risk by, for example, by asking that the hoses be moved and/or by asking for assistance in walking back to her car
- Plaintiff had physical limitation which increased the need to avoid the risk
Since the hoses were open and obvious, they did not present an unreasonable risk. Dismissal was affirmed.
A Note on the Broussard Case
There is no question that the Broussard case is going to cause problems for defense counsel for years to come. Frankly, the best way of handling Broussard is to argue — in every case — that it was a bad decision, perhaps that all the discussion of open and obvious conditions was dicta. Most people would agree that it is open and obvious when an elevator stops above or below the floor creating an uneven “offset” between elevator and floor. In the Broussard case, the plaintiff was a UPS delivery driver who made daily deliveries to the Tower Building, admitted to knowledge of the 1.5’3” offset, and attempted to push and then pull his 300 pound dolly up and over the offset. Although Broussard was able to pull the 300 pound dolly over the offset, he lost control of the load, which resulted in his body being pushed forcefully into the back of the elevator, resulting in a serious back injury. How much more open and obvious could it be? Moreover, many witnesses testified to knowledge of the fact that the building’s elevators had not stopped level with the floors for years, sometimes suddenly “fell” several inches or feet when stopping, and posed a potential risk for injury. Justices Victory and Guidry, dissenting, had the better legal reasoning.
Contact an Experienced Louisiana Defense Lawyer
If you want further information about the open and obvious defense to negligence claims and other insurance defense doctrines, contact an experienced Louisiana insurance defense lawyer.
The author may be contacted at:
Kristin M. Lausten
New Orleans, Louisiana
Telephone: 504.377.6585
E-mail: kristin@kristinlausten.com
Web: www.kristinlausten.com
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.