247 So. 3d 205
La. Ct. App.2018Background
- In 2013 Acadian Plumbing dug an access hole under the Lincolns' house to replace drain lines; the hole was covered by a piece of plywood and partially surrounded by caution tape.
- About 1–2 weeks into the work, Marilyn Lincoln walked toward the front porch, the plywood allegedly shifted/broke, and she fell into the hole; she required surgery for a leg/hip injury and later died (death alleged to be stroke-related).
- Plaintiffs (Mrs. Lincoln’s estate, husband, and daughter) sued Acadian and its insurer for negligence, alleging the plywood was thin/rotten and the barricade did not fully surround the hole, creating a hidden/unreasonable danger.
- Defendants moved for summary judgment, arguing the hazard was open and obvious; depositions and a photo showed knowledge of the hole, plywood, and some caution tape.
- Plaintiffs submitted contrary evidence: family testimony that the plywood was rotten and tape did not fully encircle the hole, deposition testimony from Acadian personnel raising disputes about materials and practices, an architect’s affidavit opining the cover and barricade violated safety standards, and photos.
- Trial court granted summary judgment for defendants; the appellate court reversed and remanded, finding genuine factual disputes about whether the site’s security created an unreasonable risk of harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Acadian owed a duty to protect against the condition at the work site | The plywood was thin/rotten and tape did not fully barricade the hole, creating an unreasonable, non-obvious risk requiring protection | The hole and its cover/warnings were open and obvious, so no duty to protect existed | Reversed - genuine factual disputes exist whether the manner of securing the hole created an unreasonable risk of harm |
| Whether summary judgment was appropriate | Evidence (depositions, architect affidavit, photos) raises triable issues about defect and compliance with safety practices | Family admissions that they knew about the hole and saw plywood/tape; photo showing tape/plywood supports no duty | Reversed - material factual disputes preclude summary judgment |
| Whether Acadian followed its own safety practices and whether that matters | Testimony shows Acadian used thin/rotten plywood and incomplete tape; deviation from policies creates triable issues | Acadian witnesses asserted standard practices (4x8 plywood, full tape perimeter) | Reversed - disputes over adherence to company practices are material facts for trial |
| Whether the condition was distinguishable from precedent where courts found hazards open and obvious | Plaintiffs point to unique combination: plywood overlapping walkway, rotten cover, partial tape creating a ‘‘booby trap’’ | Relied on Allen and Helwig to argue summary judgment appropriate | Reversed - court found this case factually distinguishable and plaintiffs provided factual support to avoid those precedents |
Key Cases Cited
- Stone v. Lakes of Chateau North, LLC, 208 So.3d 1053 (La. App. 5 Cir.) (standard of appellate review for summary judgment)
- Upton v. Rouse's Enterprise, LLC, 186 So.3d 1195 (La. App. 5 Cir.) (summary judgment standards and genuine issue definition)
- Bufkin v. Felipe's La., LLC, 171 So.3d 851 (La.) (duty-risk analysis in negligence and duty as threshold issue)
- Broussard v. State, Office of State Bldgs., 113 So.3d 175 (La.) (risk-utility balancing test and obviousness factor)
- Dupree v. City of New Orleans, 765 So.2d 1002 (La.) (custodian’s duty to label/barricade unreasonable risks)
- Allen v. Lockwood, 156 So.3d 650 (La.) (example of case where hazard found open and obvious)
- Helwig v. H.P.B., Inc., 182 So.3d 1169 (La. App. 5 Cir.) (another case finding hazard open and obvious)