271 So. 3d 231
La. Ct. App.2019Background
- On Dec. 9, 2014, 78‑year‑old Fred Russell tripped on an elevated/transitioning section of sidewalk outside the 19th Judicial District Court in Baton Rouge and was injured.
- Russell sued the City/Parish alleging the abrupt sidewalk elevation/broken curb created an unreasonably dangerous condition.
- City/Parish moved for summary judgment, arguing the condition was open and obvious and Russell failed to watch where he was walking.
- Evidence for Russell included eyewitness affidavit (crowded walkway, moved toward building, did not see broken curb), his deposition (crowd obstructed view), an engineer’s opinion that the transition was a trip hazard and violated local codes, and testimony that a curb segment had broken earlier and was not repaired.
- Trial court granted summary judgment for City/Parish; the appellate court reviewed de novo and reversed, finding genuine issues of material fact precluded summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sidewalk defect was "open and obvious" | Russell: crowding obstructed view; defect was not visible to him, so not open and obvious | City/Parish: defect was open and obvious and plaintiff failed to watch where he was walking | Reversed trial court: genuine issue of material fact exists whether defect was open and obvious due to crowding and visibility disputes |
| Whether the condition amounted to an "unreasonably dangerous" defect | Russell: engineer opined transition was a trip hazard and violated codes, showing unreasonable risk | City/Parish: contended no unreasonable danger if condition was open and obvious | Court: engineer testimony and code violations create a factual dispute on unreasonable risk |
| Whether City/Parish had constructive notice/failed to repair timely | Russell: curb piece had broken earlier and manager removed debris but did not repair until after fall | City/Parish: manager testified he did not know of an issue before the fall and no prior incidents | Court: testimony raises factual dispute about knowledge/repair timing, so summary judgment inappropriate |
| Appropriateness of summary judgment | Russell: evidence creates genuine issues of material fact on key elements | City/Parish: mover argued it was entitled to judgment as a matter of law | Court: under de novo review, genuine issues of material fact precluded summary judgment; remanded |
Key Cases Cited
- M/V Resources LLC v. Louisiana Hardwood Products LLC, 225 So.3d 1104 (La. App. 1st Cir. 2017) (summary judgment standard / de novo appellate review)
- Willis v. Medders, 775 So.2d 1049 (La. 2000) (factual inferences against movant on summary judgment)
- Clark v. J‑H‑J, Inc., 136 So.3d 815 (La. App. 1st Cir. 2013) (court's role on summary judgment is to identify triable issues, not weigh evidence)
- Nash v. Rouse's Enterprises, LLC, 191 So.3d 599 (La. App. 1st Cir. 2016) (materiality defined by substantive law)
- Temple v. Morgan, 196 So.3d 71 (La. App. 1st Cir. 2016) (elements to prove public entity liability for sidewalk defects)
- Broussard v. State ex rel. Office of State Buildings, 113 So.3d 175 (La. 2013) (risk‑utility test and open-and-obvious rule)
- Bastian v. Rosenthal, 234 So.3d 1022 (La. App. 4th Cir. 2017) (visibility requirement for open and obvious conditions)