Louisiana Defenses: Open and Obvious (Part II)
Written by Kristin Lausten
In this article, we continue our discussion of using photos to prove the defense of open and obvious. In the case under discussion, the Louisiana Court of Appeals affirmed summary judgment dismissal where defense counsel provided excellent and well-taken photos showing the openness of the alleged dangerous condition. See Granier v. Navigator Specialty Ins. Co., Case No. 2017 CA 1126 (La. App. 1st Cir. April 26, 2018) (unpublished). This is in contrast to the US District Court’s decision in Gomes v. Harrah, Inc., Civil Action No. 16-17483 (US E.D. La. December 15, 2017) which we discussed in a companion article. Our view is that the Louisiana Court of Appeals got it right in Granier.
Louisiana Premises Liability Defense: Legal Principles
The Louisiana Merchant Liability Act governs the duties of merchants with respect to defects in and on their property. See La. R.S. § 9:2800.6. Under the Act, a merchant has a duty “to exercise reasonable care to keep its aisles, passageways, and floors in a reasonably safe condition,” which “includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.” However, if the defective condition is obvious and apparent, a merchant or land owner does not have a duty to protect against it.
To be open and obvious, the alleged dangerous condition must be apparent to all who encounter the condition. Broussard v. State ex rel. Office of State Bldgs., 113 So.3d 175 (Louisiana Supreme Court 2013).
Louisiana Premises Liability Defense: Facts and Holding of Granier
In 2013, the Granier plaintiffs were walking together on the sidewalk of a housing subdivision in Baton Rouge. When they reached the end of the sidewalk, they began to cross the street and, as they walked, they both attempted to step over a storm drain attached to the curb of the street. Both allegedly stepped into a wire frame covering the storm drain called an “inlet protector.” Both plaintiffs tripped on the inlet protector causing them to fall and sustain injuries.
The plaintiffs eventually sued various parties including the developer of the subdivision and the insurance carrier. They claimed that the inlet protector was unreasonably dangerous.
Among other defenses, the defendants asserted that the inlet protector was open and obvious. As part of the discovery process, defense counsel obtained, and provided for the court, numerous photographs from all angles, including the perspective from which the two plaintiffs should have been able to see the inlet protector when they attempted to step over them. The defendants filed for summary judgment which was granted by the trial court.
The Court of Appeals affirmed. The court reviewed the summary judgment de novo and, based on its review of the photographs, it held that the inlet protector was open and obvious. The court stated:
“In all photographs, the wire framework of the inlet protector is clearly visible. As the appellants attest that the photographs admitted into evidence accurately depict the construction sites as they were on November 18, 2013, we find that the inlet protector was of an open and obvious nature, which would impose no duty upon Alvarez to protect the public against it. Therefore, there is no issue of material fact as to whether Alvarez owed a duty to protect the public from the inlet protector.”
In our view, this holding seems consistent with other Louisiana cases. However, it should be noted that there was a dissenting opinion on the Court of Appeals panel expressing the view that the evidence was not sufficient to show that the inlet protector was open and obvious as a matter of law.
Defending Louisiana Premises Liability
If you have been sued for negligence, you are going to need an experienced Louisiana defense attorney. Ms. Lausten has experience in defending negligence lawsuits, from simple slip and fall cases to complex toxic tort litigation. Ms. Lausten can be contacted at 504.377.6585 or via email at firstname.lastname@example.org.
The author may be contacted at:
Kristin M. Lausten
New Orleans, Louisiana
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.