217 So. 3d 421
La. Ct. App.2017Background
- On July 9, 2013, Debra Williams fell off a curb while exiting Walk-On’s restaurant in Baton Rouge; she sued Walk-On’s and its insurer, Liberty Mutual, for personal injuries and loss of consortium.
- Williams was walking and talking with others, left the restaurant without using the handicapped ramp, and claimed she did not see a step-down from the curb to the parking lot.
- Defendants moved for summary judgment arguing the curb/sidewalk/parking lot were not unreasonably dangerous and any condition was open and obvious.
- Plaintiffs opposed with an affidavit and preliminary report from a forensic architect (Ladd P. Ehlinger) asserting lack of warnings, color/texture changes, uneven landing, and code violations; the expert did not inspect the site and relied on photographs.
- Trial court granted summary judgment for defendants; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the curb/sidewalk/parking lot presented an unreasonable risk of harm | Williams: the step-down, lack of warning/contrasting color/texture, and uneven landing made the condition hazardous and violated safety codes | Defendants: the curb was a basic, ordinary curb; no evidence of a dangerous defect or optical illusion; condition was open and obvious | Court: No genuine issue of material fact; curb not unreasonably dangerous; summary judgment affirmed |
| Sufficiency of expert affidavit to create a material factual dispute | Williams: Ehlinger’s affidavit/prelim. report showed code violations and hazard sufficient to defeat summary judgment | Defendants: expert report was conclusory, based on photos only, irrelevant code citations, and lacked factual specifics | Court: Expert opinion was conclusory, not factually supported, and insufficient to meet plaintiffs’ burden |
| Whether open-and-obvious defect can be decided on summary judgment | Williams: implied that openness/apparency may be disputed | Defendants: condition was open and obvious so no duty/liability | Court: Where no material facts dispute openness, court may decide as a matter of law; here curb was open and obvious |
| Burden-shifting on summary judgment in premises liability against a merchant | Williams: plaintiffs must prove unreasonable risk, merchant notice, and failure to exercise care | Defendants: moved under summary judgment showing absence of proof; burden shifted to plaintiffs | Held: Defendants met initial showing; plaintiffs failed to produce sufficient factual support to establish they could meet their evidentiary burden at trial |
Key Cases Cited
- Oster v. Department of Transportation & Development, State of Louisiana, 582 So.2d 1285 (La. 1991) (absence of unreasonably dangerous condition implies no duty)
- Hutchinson v. Knights of Columbus, Council No. 5747, 866 So.2d 228 (La. 2004) (four‑part risk‑utility balancing test for dangerous conditions)
- Broussard v. State ex rel. Office of State Buildings, 113 So.3d 175 (La. 2013) (discussion of open-and-obvious concept)
- Bufkin v. Felipe’s Louisiana, LLC, 171 So.3d 851 (La. 2014) (summary judgment permissible when condition is obvious and not unreasonably dangerous)
- Rodriguez v. Dolgencorp, LLC, 152 So.3d 871 (La. 2014) (open-and-obvious defect supports summary judgment)
- Allen v. Lockwood, 156 So.3d 650 (La. 2015) (open and apparent condition justified summary judgment)
- Ludlow v. Crescent City Connection Marine Division, 184 So.3d 21 (La. 2015) (danger that is obvious and apparent to anyone may negate duty)
- Temple v. Morgan, 196 So.3d 71 (La. App. 2016) (court may decide open-and-obvious on summary judgment when no factual dispute)
- Dupas v. Travelers Property Casualty Insurance Co., 762 So.2d 127 (La. App. 2000) (elements plaintiff must prove in merchant slip-and-fall cases)
- Williams v. Leonard Chabert Medical Center, 744 So.2d 206 (La. App. 1999) (pedestrian duty to observe pathway; accident alone insufficient for liability)