274 So. 3d 20
La. Ct. App.2019Background
- Plaintiff Earl Primeaux tripped on the elevated outer edge of the curb at the covered front entrance of a Best Western hotel and struck his head; suit filed for personal injuries under the Merchant Liability Statute (LSA‑R.S. 9:2800.6).
- Defendants (Best Western Plus Houma Inn and Cajun Lodging, LLC) moved for summary judgment arguing the curb was painted yellow, open and obvious, and not unreasonably dangerous.
- Plaintiff opposed with an architect’s affidavit (Mitchell Wood) alleging code violations and unsafe ramp/landing design; defendant objected that the expert lacked personal inspection in the original affidavit; plaintiff later filed a supplemental affidavit after inspection, which was excluded as untimely.
- Trial court granted summary judgment, finding the painted yellow curb was clearly visible and therefore not an unreasonable risk; appellate court reviews de novo and considers only exhibits admitted by the trial court.
- Appellate court held the plaintiff’s expert opinions did not create a genuine issue of material fact because the fall occurred before the ramp/landing, code applicability wasn’t shown, and the curb was visually distinct (yellow).
- Plaintiff’s discovery‑related argument failed: court found plaintiff had adequate discovery opportunity and did not show probable injustice from proceeding with summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the curb presented an unreasonable risk of harm | Primeaux: curb design and code violations (per expert) made it unreasonably dangerous and contributed to fall | Defendants: curb was painted yellow, open and obvious, not unreasonably dangerous | Held: No genuine issue — curb was open and obvious; not unreasonably dangerous |
| Whether expert affidavit created a material factual dispute | Primeaux: architect’s affidavit established unsafe design and code violations | Defendants: affidavit lacked personal inspection and was conclusory/untimely | Held: Expert opinions insufficient — failed to show codes applied or relevance to where plaintiff fell |
| Whether defendants had notice or failed to exercise reasonable care under Merchant Liability Statute | Primeaux: design defects put merchant on constructive notice | Defendants: no hazardous condition; nothing concealed; plaintiff admitted he could see curb | Held: No evidence of a concealed/unreasonable condition or lack of care; element not met |
| Whether summary judgment was premature because discovery was incomplete | Primeaux: discovery ongoing; motion premature | Defendants: plaintiff had fair opportunity for discovery and didn’t seek continuance or compel more | Held: Motion not premature; plaintiff failed to show probable injustice from ruling now |
Key Cases Cited
- Williams v. Liberty Mut. Fire Ins. Co., 217 So.3d 421 (La. App. 1 Cir.) (courts may find curbs open and obvious on summary judgment)
- Rodriguez v. Dolgencorp, LLC, 152 So.3d 871 (La.) (defect can be found open and obvious as matter of law)
- Allen v. Lockwood, 156 So.3d 650 (La.) (open and apparent dangerous condition supports summary judgment)
- Ludlow v. Crescent City Connection Marine Division, 184 So.3d 21 (La.) (obvious danger of concrete barrier justified summary judgment)
- Broussard v. State ex rel. Office of State Bldgs., 113 So.3d 175 (La.) (open‑and‑obvious doctrine explained)
- Calcagno v. Kuebel, 802 So.2d 746 (La. App. 5 Cir.) (faded paint/optical illusion can create a triable issue)
- Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.) (uniform color creating optical illusion can be unreasonable risk)