Louisiana Courts Continue Re-Establishment of the Open and Obvious Defense

Under traditional Louisiana law, if somebody tripped and fell, the property owner would not be liable for an injury (1) if the person reasonably should have seen the thing that caused them to fall or (2) if it was as obvious to the person as it was to the property owner. Stated another way, if the alleged condition was “open” and “obvious,” then that condition could not be “unreasonably dangerous,” and the property owner would not be liable. This thinking formed the basis of the “open and obvious defense” in Louisiana law.

A few years ago, the Louisiana Supreme Court issued a ruling in Broussard v. State, 2012-1238 (La. 2013), 113 So.3d 175 that raised doubts about the usefulness of the open and obvious defense. However, recent decisions by the Louisiana Supreme Court and various courts of appeal have clarified that the open and obvious defense is not dead.

A recent example of this trend is seen in Morel v. Cheema Properties, LLC, 16-666 (La. App. 5 Cir. 4/12/17), — So.3d —. This case involved a trip-and-fall accident at a gas station. On her way inside to pay for her gas, an elderly plaintiff saw two hoses next to a curb where she stepped up to enter the store. When she exited the store, she saw that the two hoses had separated and now blocked her path. She fell and was injured when she tried to navigate through these hoses. The property owner asserted the open and obvious defense and plaintiff’s suit was dismissed.

The court found that the plaintiff “was aware of the open and obvious risk” and that she fell while attempting to step over the hoses. The court observed that the plaintiff could have avoided the risk by asking for assistance or for the hoses to be moved. To the court, it was significant “that the plaintiff saw the hoses and was aware that the hoses could cause her to fall.” Therefore, because the alleged condition was open and obvious, it did not present an unreasonable risk.

This recent Fifth Circuit decision is consistent with recent trends in Louisiana law and shows that the open and obvious defense remains alive and well.