“OPEN AND OBVIOUS DEFENSE” – is water tracked into a building during a rainy day “open and obvious” so as to eliminate any potential duty owed by the building’s owner? The answer to that question is no, under the specific facts in Kadlec v. Louisiana Tech University, – – – So.3d- – – (2016), 50-841 (La. App. 2 Cir. 11/16/16).

In Kadlec, it was move in day at the dormitories of Louisiana Tech University.  The plaintiff, mother to an incoming student, was assisting in moving items into the dorm.  It began to rain, increasingly so as the mother made trips in and out of the building.

After it began to pour, the plaintiff carried a box and a garbage bag towards the building, over the outside door mat, and fell, approximately four steps into the building; she was wearing flip-flops at the time.  In her deposition, Kadlec stated that she was aware it was raining, but did not see any water on the floor.

Louisiana Tech filed a Motion for Summary Judgment, asserting that there was no duty to protect or warn because the hazard, if there was one, was open and obvious to all.  This motion was originally denied, but ultimately remanded after appeal by the Louisiana Supreme Court “in light of Bufkin.”  Bufkin was a Louisiana Supreme Court decision which concluded that the defendant had no duty to warn about the presence of a large, visible dumpster.

Following remand, the trial court ruled in favor of Louisiana Tech finding that the presence of the water at the entrance of a building during a significant rain fall presented an open and obvious hazard.  On appeal, the Louisiana Second Circuit found that the trial court’s determination went a step too far.

While acknowledging that the duty owed by a non-merchant defendant, such as a university, is lower than that owed by a store keeper, the court found that material issues of fact existed concerning whether, given the heavy rain and the high traffic volume, Louisiana Tech should have taken additional measures. Summary judgment was therefore reversed.