Keogh Cox Secures Dismissal of Premises Liability Case

The Louisiana Supreme Court recently issued a ruling on the application of the "open and obvious" doctrine in slip and fall cases. The facts of Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), presented problems for both sides. A UPS driver tripped and fell over an offset between the floor and an elevator. The elevator in a State building had problems for years. One problem was that the elevator would not align properly between floors causing an offset between the floor and the elevator. However, the UPS driver delivered products to this particular State building daily and was well aware of the problem. At the time of the incident, he noticed that the elevator was not properly aligned but nevertheless attempted to pull a dolly with approximately 300 pounds of computer paper over the offset. The inertia created caused the plaintiff to lose control. Plaintiff sued the State, the owner of the building, for injury to his back.

To recover damages from an owner of a building for a slip and fall, a plaintiff must prove: 1) ownership of the building; 2) owner's knowledge of the defect; 3) that damage could have been prevented by reasonable care; 4) that the owner failed to exercise reasonable care; 5) causation of damages; and 6) that the defect in the building created an unreasonable risk of harm. La. C.C. art. 2322; Entrevia v. Hood, 427 So. 2d 1146 (La. 1983). It was the "unreasonable risk of harm" element that was at issue before the Broussard Court.

Louisiana jurisprudence has created a risk-utility balancing test to determine if a defect in a building poses an unreasonable risk of harm. The risk-utility balance test consists of four factors: 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 its social utility or whether it is dangerous by nature. Dauzet v. Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08), 995 So. 2d 1184.

In applying this balancing test, the jury found the State 62% liable and Plaintiff 38% liable for Plaintiff's damage. The court of appeal reversed that decision. It found that, where the Plaintiff knew of the defect, the defect was "open and obvious" such that the State had no duty to protect against the condition.

The Louisiana Supreme Court disagreed. Under the specific facts of the case, the Court found that Plaintiff's knowledge of the defect was insufficient to meet the open and obvious test. According to the Court, for a defect to be considered open and obvious it must be open and obvious to all. "Thus, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." Broussard, p. 17.

The Supreme Court reasoned that the open and obvious question is not based upon the plaintiff's particular state of mind. Such an analysis is akin to assumption of the risk - a theory of law that was omitted when Louisiana enacted its comparative fault regime. Instead, the open and obvious to all standard is, according to Broussard, "sensible . . . and does not undermine the comparative fault regime by allowing a plaintiff's negligence to operate as a bar to recovery in a case where the defendant's conduct poses a risk of harm to the hypothetical blameless plaintiff." Id. p. 18.

The true impact of the Broussard decision remains to be seen. Under one reading, the opinion's impact should be limited to its specific facts. Under any interpretation, Broussard preserves the rule that an allegedly defective condition which is obvious to all will bar recovery to the plaintiff.

The liability of a premises owner for third-party criminal acts has been the subject of many decisions issued by the Louisiana Supreme Court. But recently, the Court clarified how to analyze this issue in the context of summary judgment. In Campbell v. Orient-Express Hotels Louisiana, Inc. (Windsor Court), the Supreme Court reversed the court of appeal and held that Windsor Court was not liable for a robbery that occurred in its courtyard.

The factual background is simple: Campbell was a frequent guest at the Windsor Court. He decided to approach a vehicle near the entrance to the courtyard when he pulled a “substantial amount of cash” to show the female occupants in the vehicle. He placed the money back in his pocket and talked with them for one minute and forty-six seconds. When he pulled the cash from his pocket a second time, one of the occupants grabbed the cash and the vehicle sped away dragging him with it. Campbell then sued the Windsor Court alleging negligence, strict liability, failure to warn, failure to ensure the safety of its guests, etc.

The importance of this decision is found in how the Court analyzed the case to reach its conclusion that summary judgment was proper: The Court noted that it was not modifying prior duty/risk analysis but was clarifying how the analysis is to be conducted—The issues of “duty” and “scope of duty” are separate inquiries that require separate analysis.

In Campbell, the Court acknowledged that “duty” is a question of law for the court. It then concluded that “(w)hether a particular risk falls within the scope of that duty, by contrast, ‘is fact sensitive and ultimately turns on a question of policy as to whether the particular risk falls within the scope of that duty.’” However, the court continued, “‘(t)he determination of legal cause/scope of the duty involves a purely legal question.’” The Court conducted an historical analysis noting that prior decisions had “merged the concept of duty and scope of duty into a single consideration.”

On the threshold question of duty, the Court acknowledged that in the context of third-party criminal activity, Windsor Court, as an innkeeper, owed a duty to take reasonable precautions to protect its patrons from criminal acts of third parties. Having found this duty, the Court then concluded that “Campbell cannot meet the ‘scope of the duty’ element of his claim.” In other words, “the scope of the duty owed by the Windsor Court did not encompass the risk of the particular harm and Injury Mr. Campbell suffered.”

Here the court asked whether this particular risk and injury were “foreseeable.” The Court examined multiple factors to find that the robbery was not foreseeable, but the Court further noted “perhaps even more important to our decision is the manner in which the robbery occurred.” Campbell was not unexpectedly accosted, but his own actions placed him in peril. As such, the Court found no “ease of association” between Windsor Court’s duty to take reasonable precautions to protect its guests and the risk that the guest would voluntarily approach an unknown vehicle and flash a sizable pile of cash.

Justice Crain concurred in the opinion and noted that “scope of duty can be resolved on summary judgment if reasonable persons could not disagree that the manner of the injury is either within or beyond the scope of the duty.” Justice Crain also noted that the manner of injury must be analyzed in the context of “foreseeability” from the perspective of the premises owner and have an “ease of association” between the duty and the manner of injury—this analysis is necessary to “avoid making a defendant the insurer of all persons against all harms.” Thus, he agreed with the majority that Campbell was unable to establish the scope of duty element.

Reference:

Campbell v. Orient-Express Hotels Louisiana, Inc., 2024-00840 (La. 3/21/25), 403 So. 3d 573.

The Louisiana Supreme Court recently ruled that a co-defendant who pleads comparative fault as an affirmative defense may appeal a summary judgment that dismisses a co-defendant, even when the plaintiff did not file an appeal. The Court’s decision in Amedee v. Aimbridge Hospitality resolved a circuit split among the Louisiana Courts of Appeal regarding this issue.

The Amedee plaintiff filed a personal injury suit against multiple defendants including the City of New Orleans and Premium Parking of South Texas, LLC. After discovery, the City of New Orleans filed a Motion for Summary Judgment seeking dismissal from the suit. The plaintiff did not oppose the city’s motion. Premium Parking was the only party to file an opposition. The trial court granted the city’s motion and dismissed it from the suit. Premium Parking appealed the court’s judgment.

The Fourth Circuit did not address the merits of Premium Parking’s appeal. Instead, the court dismissed the appeal because it found Premium Parking did not have a legal right to appeal the city’s dismissal when the plaintiff did not appeal the judgment.

The Supreme Court disagreed and reversed the appellate court’s ruling. The Court noted that “to prohibit appellate review of a summary judgment by a co-defendant, even where a plaintiff did not appeal, diminishes the search for truth—the object of a lawsuit—and denies a defendant the ability to fully defend itself.” To reach this conclusion, the Court first asked, who may appeal a judgment?

To answer this question, the Court looked to La. C.C.P. art. 2082 and observed the article makes no restriction regarding what party may appeal a final judgment. Further, the Court noted that the right to an appeal is even extended third parties, not involved in the suit, when that third party is allegedly aggrieved by the judgment. See La. C.C.P. art. 2086.

The Court also considered a defendant’s right to appeal in the context of Louisiana’s pure comparative fault system and summary judgments. Under La. C.C. art. 2323, Louisiana’s comparative fault statute, the fault of all parties is to be quantified. La. C.C.P. art. 966(G), provides that when summary judgment is granted in favor of a party or non-party to a suit, the fault of the dismissed party may not be considered in any subsequent allocation of fault in the matter.

The Court noted that while art. 966(G) precludes an allocation of the fault of a party dismissed under the statute, it does not limit the right of a defendant to appeal the dismissal of a co-defendant. No statute limited a defendant’s right to appeal a summary judgment only to those situations where a plaintiff also filed an appeal. Therefore, a defendant who hopes to keep a co-defendant in the case so that fault still may be allocated to the dismissed party at trial now may appeal the co-defendant’s dismissal, even when the plaintiff fails to do so.

Case Reference: Amedee v. Aimbridge Hosp. LLC, 2021-01906 (La. 10/1/22), --- So.3d ---, 2022 WL 12338929.