Keogh Cox Secures Dismissal of Premises Liability Case

Louisiana premises liability law continues to evolve in the wake of the Louisiana Supreme Court's decision in Broussard v. State, 113 So.3d 175 (La. 2013). The Broussard decision was believed to limit the application of the open and obvious defense in the context of a Motion for Summary Judgment on liability.On February 18, 2014, the First Circuit Court of Appeals decided Gustafson v. Priority Electric, Inc., et al, 2013 CA 1096, 2014 WL 647704 (2/18/14) (not designated for publication), providing additional insight as to how Broussard will affect the applicability of the open and obvious defense. Based on Gustafson, the open and obvious defense may still be alive in the context of a Motion for Summary Judgment.While the Gustafson's home was under construction, Ms. Gustafson entered the home unescorted. She stood facing a newly repainted wall and took several steps backward to broaden her perspective of the wall. As she walked backwards, she tripped on one of two unfinished PVC conduit "stub-outs" containing electrical wire that would ultimately service floor-mounted outlets in an adjoining den. The lawsuit ensued.Priority Electric filed a Motion for Summary Judgment on the grounds that the stub-out presented an open and obvious condition that was readily discoverable had plaintiff exercised reasonable care. The company further argued that it had no duty to warn. The Trial Court agreed that the stub-out was an open and obvious condition and granted the motion.The Appellate Court conducted a de novo. The defendants argued, and the Trial Court agreed, that "if a defect is obvious and apparent, then there is no correlative duty to warn of its existence." Citing Broussard, the Appellate Court found that statement to be a misstatement of the law, noting that Broussard's analytic framework for evaluating an unreasonable risk of harm is classified as a determination of whether a defendant breached a duty owed, rather than a determination of whether a duty is owed ab initio.In light of Broussard, the Trial Court's reasoning underlying the grant of summary judgment was flawed. Nevertheless, the Appellate Court found a basis to support the Trial Court's dismissal of the claims utilizing a "risk-utility" analysis considering multiple factors.

1. Utility of the Stub-Outs

The necessity and utility of the stub-outs was not disputed.

2. Likelihood and Magnitude of Harm

The decision turned on this element. The utility of the stub-outs must be weighed against the likelihood and magnitude of harm presented by their defective condition, including whether the defect was open and obvious. The plaintiffs did not make a showing that any of the numerous contractors, subcontractors or visitors to the premises ever tripped. They also failed to offer expert testimony to show that the stub-outs presented an unreasonable risk of harm. Instead, they relied solely on the testimony of Ms. Gustafson, who admitted she was walking backwards and not paying attention. Unlike in Broussard, there was no evidence that the stub-outs were not "open and obvious to all who encountered them..."3. Cost of Preventing the HarmNo expert testimony was presented to show that the use of PVC stub-outs was unconventional in a new home or that there were reasonable alternatives to their use. No evidence was presented to show how the stub-outs could have been better placed or made more visible.　 Although plaintiffs argued that warning cones should have been in place, no evidence was presented to show that the contrast of the blue pipes on the gray cement was insufficient to alert an unsuspecting person.4. Nature of Plaintiff's ActivityPlaintiff was walking backwards when she fell. She acted unreasonably. The home was under construction and could have encountered a number of hazards. She failed to offer countervailing evidence on this issue.Upon balancing all of the factors above, all evidence showed that the accident would not have occurred "but for" Ms. Gustafson's own inattention and negligence.

In Cooper v. Albertsons Companies, LLC, 20-124 (La. App. 3 Cir. 10/21/20), 2020 WL 6163099, the Third Circuit Court of Appeals affirmed summary dismissal of plaintiff’s claims against a merchant and premises owner. The plaintiff, a vendor, made deliveries to a pharmacy on a regular basis. He slipped on a clear substance believed to be vinegar. The trial judge granted a defense summary judgment, and plaintiff appealed.

Because there was no evidence of Albertsons’ actual knowledge of the condition, the plaintiff had to demonstrate under Louisiana’s “slip and fall” statute, La. R.S. 9:2800.6, that it either created the condition or possessed “constructive knowledge” to defeat the motion for summary judgment.

No Creation of the Condition- In response to the motion for summary judgment, Cooper argued that the size and dispersal of the liquid provided circumstantial evidence sufficient to create a genuine issue of material fact regarding whether the merchant created the condition. The court noted that circumstantial evidence “must exclude every other reasonable hypothesis with a fair amount of certainty.” The plaintiff did not possess evidence to show that Albertsons’ employees stocked shelves that morning or even that any employee worked in the area before the fall. Simply, no facts supported an inference that Albertsons caused the spill.

No Constructive Knowledge- Cooper also failed to show how long the liquid was on the floor before he slipped. The liquid was clear, and no evidence established the spill was visible to anyone. No footprints, tracks, grocery-cart wheels, or the like were identified to suggest the length of time the liquid had been on the floor either.

Under the evidence presented, the Third circuit affirmed and found for the merchant. Handled by Keogh Cox attorneys, the Cooper case is a recent example that summary relief should be considered when plaintiff’s proof of a mandatory prerequisite to recovery in a “slip and fall” claim is lacking.

A federal court for the Middle District of Louisiana recently ruled that a 1½ inch elevation change in a Walmart parking lot did not present an unreasonable risk of harm to the plaintiff patron in Lacaze v. Walmart Stores, Inc. The case involved a slip and fall/trip and fall accident in the parking lot of Walmart’s Burbank Drive store in Baton Rouge. The defendant moved to dismiss the suit where the plaintiff claimed she tripped and fell as she crossed the area where the black asphalt parking lot adjoined the concrete crosswalk as pictured below.

In the area where the asphalt meets the crosswalk, the surface presented a ¼ inch to 1½ inch change in elevation. Plaintiff admitted the black pavement was distinct in appearance and color from the concrete crosswalk. Surveillance showed that plaintiff looked down at her cell phone at the time she tripped and fell. Though in a high pedestrian traffic area, Wal-Mart maintained this was the first reported incident.

The Court found the condition was open and obvious and did not present an unreasonable risk of harm. To reach this decision, the Court made the following observations:

1. Parking lots have clear and apparent utility. Crosswalks do as well. Crosswalks give patrons a designated area to traverse the lot safely.
2. The likelihood and magnitude of the risk posed by the condition was low. The Court noted it is common for surfaces of parking lots and sidewalks to be irregular, and no other patrons reported problems or accidents.
3. The cost of preventing the harm was high. The Court would not consider only the cost of fixing the specific injury-causing defect. Rather, it considered the cost of eliminating all defects in the Walmart parking lot.
4. Plaintiff conducted an ordinary commercial activity that was not dangerous in nature.

The Court concluded that all but factor four pointed to a single conclusion: the 1½ inch elevation difference did not pose an unreasonable risk of harm. The Court reached this conclusion even though the plaintiff retained an expert who gave opinions regarding possible violations of the Americans with Disabilities Act (ADA) and OSHA regulations. The expert’s opinions were insufficient to defeat summary judgment when the condition was open and obvious. In reaching its ultimate conclusion, the Court joined with several other courts, including the following:

• Chambers v. Vill. of Moreauville, where a one-and-one half inch deviation did not present an unreasonable risk of harm;
• Reed v. Wal-Mart Stores, where a height variance of one-fourth to one-half inch between concrete blocks in parking lot did not present an unreasonable risk of harm; and
• Boyle v. Board of Sup'rs, Louisiana State University, where a depression of up to one inch in a sidewalk did not pose unreasonable risk of harm.

Case References: Lacaze v. Walmart Stores, Inc., No. CV 20-696-JWD-EWD, 2022 WL 4227240 (M.D. La. Sept. 13, 2022); Chambers v. Vill. of Moreauville, 2011-0898 (La. 01/24/12), 85 So.3d 593; Reed v. Wal-Mart Stores, 97-1174 (La. 03/04/98), 708 So.2d 362; and Boyle v. Board of Sup'rs, Louisiana State University, 96-1158 (La. 01/14/97), 685 So.2d 1080.