315 So.3d 931
La. Ct. App.2021Background
- Sabrina Robertson visited her husband at The Kearney Companies' industrial yard to deliver his lunch and allegedly fell into a hole created by a container pad, sustaining injuries.
- The yard contained container pads, potholes, and open storage areas; parties conducted a site visit and photographs; Kearney’s corporate representative inspected the reported location.
- Kearney filed a motion for summary judgment arguing it owed no duty because the hole was open and obvious and Mrs. Robertson was an unauthorized entrant; it submitted an affidavit measuring the hole (18" x 38" x 3").
- The Robertsons moved to strike the affidavit (challenging personal knowledge/perjury) and to remove defense counsel; the trial court overruled the motion to strike and said the motion to remove counsel was not properly before it.
- The trial court granted summary judgment dismissing the Robertsons’ claims with prejudice; the Fourth Circuit affirmed, holding the hazard was open and obvious and no duty was owed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of corporate rep affidavit | Evans’ affidavit contains inconsistencies with his deposition and lacks personal knowledge; should be stricken | Affidavit was based on Evans’ inspection and tenure and is proper summary-judgment evidence | Court refused to strike the affidavit; appellate court found affidavit met La. C.C.P. art. 967 personal-knowledge requirement |
| Duty to protect from hazard / open-and-obvious defense | Robertson contends Kearney owed a duty and dispute exists about whether the hole was unreasonably dangerous | Kearney argues the hole (container-pad depression) was open and obvious so no duty was owed | Court held hazard was open and obvious; no legal duty owed, so summary judgment proper |
| Specificity/identity of the exact hole as a material fact | Plaintiffs argue failure to identify/measure the exact hole creates a genuine issue of material fact | Kearney produced measurements/photos of the pad-created hole and evidence the defect was obvious; exact pinpointing not material | Court held exact identification was not material given undisputed facts (pad hole, day time, plaintiff admitted not looking down); plaintiffs failed to create a triable issue |
| Motion to remove defense counsel | Plaintiffs sought removal because corporate rep allegedly relied on counsel-sourced information | Kearney opposed; trial court did not rule on the motion | Trial court stated motion to remove counsel was not before it; appellate court did not address merits |
Key Cases Cited
- Transworld Drilling Co. v. Texas Gen. Res., Inc., 604 So. 2d 586 (La. App. 4th Cir. 1992) (appellate de novo review of summary-judgment rulings)
- Smith v. Our Lady of the Lake Hosp., Inc., 639 So. 2d 730 (La. 1994) (standard for summary judgment: genuine issue of material fact inquiry)
- Jones v. Stewart, 203 So. 3d 384 (La. App. 4th Cir. 2016) (duty inquiry and application of open-and-obvious analysis on summary judgment)
- Broussard v. State ex rel. Office of State Bldgs., 113 So. 3d 175 (La. 2013) (a defendant generally owes no duty for open-and-obvious hazards)
- Bufkin v. Felipe's Louisiana, LLC, 171 So. 3d 851 (La. 2014) (summary judgment proper when condition is obvious and not unreasonably dangerous)
- Hutchinson v. Knights of Columbus, Council No. 5747, 866 So. 2d 228 (La. 2004) (pedestrian has duty to see what should be seen; landowner not liable for obviously observable conditions)