110 So. 3d 1123
La. Ct. App.2013Background
- Plaintiff Babino tripped at a Jefferson Parish bus stop on Jan 16, 2010 over bolts protruding from the concrete; she sued Laurel Outdoor, L.L.C. as owner/custodian/contractor of the stop.
- Laurel moved for summary judgment arguing the defect was open/obvious and known for months, and thus not unreasonably dangerous.
- Laurel submitted petition, Pecoraro affidavit, and Babino deposition excerpt; Babino opposed with photos and affidavits.
- Babino testified she had used the stop for years; shelter was removed but bolts remained; she admitted not reporting the bolts as dangerous.
- Babino walked toward a car when her foot struck a bolt and she fell; she had not observed the bolts as dangerous previously.
- Trial court granted summary judgment on Dec 16, 2011, dismissing all Laurel claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Laurel owe a duty given an open/obvious defect? | Babino argues factual issues on duty and open/obvious nature. | Laurel argues no duty where defect is open/obvious and known. | No reversible error; no material fact showing unreasonably dangerous defect. |
| Are there genuine issues of material fact precluding summary judgment? | Facts show disputed visibility and foreseeability of danger. | Facts show Babino knew of bolts; no duty to warn. | De novo review finds no material fact that would defeat summary judgment. |
| Was the knowledge/constructive knowledge element satisfied to impose liability? | Laurel knew of bolts or should have known; defect persisted for months. | Knowledge not shown; Babino assumed risk and walked near bolts. | Plaintiff failed to prove knowledge/constructive knowledge; summary judgment affirmed. |
Key Cases Cited
- Jeansonne v. S. Cent. Bell Tel Co., 8 So.3d 613 (La.App. 5 Cir. 1/13/09) (establishes knowledge requirement under Art. 2317.1)
- Maiorana v. Melancon Metal Bldgs., Inc., 927 So.2d 700 (La.App. 5 Cir. 4/25/06) (knowledge/constructive knowledge required for liability)
- Monson v. Travelers Property, 955 So.2d 758 (La.App. 5 Cir. 4/24/07) (hazard must be of dangerous nature; multiple factors considered)
- Moore v. Oak Meadows Apartments, 997 So.2d 594 (La.App. 2 Cir. 10/22/08) (dangerous condition not automatic from pedestrian fall)
- Pitre v. Louisiana Tech University, 673 So.2d 585 (La.5/10/96) (duty depends on apparent/unapparent danger)
- Hutchinson v. Knights of Columbus, Council No. 5747, 866 So.2d 228 (La.2/20/04) (duty depends on observer’s ability to see condition)
- Tillman v. Johnson, 612 So.2d 70 (La.1993) (mixed fact/law in unreasonably dangerous analysis)
- Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La.7/5/94) (standard of material fact in summary judgment review)