Lead Opinion
Bln this рersonal injury case, we must determine whether a one and one-half to three inch misalignment between the floors of an elevator and a building’s lobby created an unreasonable risk of harm as found by the jury, or whether the elevator’s defective condition presented an open and obvious hazard as determined by the Court of Appeal.
Plaintiff, Paul Broussard, filed this suit against the State of Louisiana (“the State”) for damages he sustained from an accident caused by the misaligned elevator. Upon conclusion of a three-day trial, a jury re
After reviewing the applicable law and the record in its entirety, we find the jury’s unreasonable risk of harm determination was not manifestly erroneous. The record contains a reasonable factual basis to support the jury’s finding the misaligned elevator created an unreasonable risk of harm to Broussard and the State breached its duty to maintain its property in a reasonably safe condition by failing to remedy this defect or warn of its existence. Accordingly, we reverse the Court of Appeal and reinstate in its entirety the judgment of the District Court rendered in conformity with the jury’s verdict.
FACTS AND PROCEDURAL HISTORY
The Wooddale Tower (“the Tower”) is a twelve-story, State-owned office building located in Baton Rouge. There are two elevators in the Tower’s lobby. Sometime in 1998, the State contracted to have the Tower’s roof repaired. This roofing project generated a large amount of dust and debris, which eventually settled and accumulated on the elevators’ relay contacts, causing the elevators tо operate erratically for several years. Most significantly, the Tower’s elevators would often stop in a position uneven with floors of the building. These misalignments would create an offset between the elevator floor and the building floor ranging anywhere from a few inches to several feet.
Between 1999 and 2000, the State received multiple complaints from the Tower’s tenants expressing their concern the malfunctioning elevators would eventually cause a serious accident. For instance, several employees from the Department of Social Services, an agency housed on the Tower’s first floor, sent a memorandum to their supervisor on July 10, 2000, in which they detailed the | ¡¡elevators’ myriad problems. In their memo, the concerned tenants noted the elevators’ frequent failure to stop in a position flush with the building’s floors, stating this problem would often cause employees to trip when entering or exiting the elevators. The Department of Social Services employees also recalled incidents in which the elevators dropped anywhere from a few inches to several feet while employees were attempting to enter or exit them.
On January 23, 2001, Broussard, a United Parcel Service (“UPS”) delivery driver, sustained a serious back injury while maneuvering a loaded dolly into one of the Tower’s misaligned elevators. Before this incident, Broussard worked for UPS eleven years, seven of which were as a delivery driver. During his tenure as a UPS driver, Broussard delivered parcels to the Tower on a daily basis. He was, therefore, familiar with the building and knew its elevators intermittently stopped at a level uneven with the building’s floors.
On the morning of the accident, Brous-sard arrived at the Tower and delivered several overnight packages. After delivering these priority items, he returned to his truck and loaded a standard-issue UPS dolly with six boxes of computer paper weighing approximately three hundred pounds. Broussard’s objective was to deliver this paper to the Tower’s eighth floor. He then entered the lobby with his delivery, where one of the elevators stood open with its floor 14elevated one and one-half to three inches above the lobby floor. Two individuals had entered the elevator before Broussard. One of them, Tammy Loupe, testified Broussard initially held the dolly in front of his body and attempted to push it onto the elevator. The offset between the elevator and lobby floors, however, impeded Broussard’s momentum and prevented him from pushing the dolly forward. After his initial maneuver failed, Broussard turned around, stepped backwards into the elevator, and attempted to pull the dolly over the elevation. Brous-sard successfully pulled the dolly over the offset, but the inertia created by the pull caused him to lose control of the load and forcefully pushed him into the back wall of the elevator. The resulting impact caused Broussard to suffer a serious back injury, and he was eventually diagnosed with an L5-S1 centrally herniated, degenerative disc.
After the accident Broussard was unable to return to work for UPS. Because his doctors prohibited him from lifting over 70 pounds, Broussard was forced to obtain less strenuous, but lower-paying, employment. At the beginning of trial in August 2010, he was employed as a delivery driver for a dry cleaner.
Broussard subsequently sued the State of Louisiana through the Office of State Buildings for the damages he suffered as a result of the accident.
The Court of Appeal reversed, holding the jury’s determination the offset created an unreasonable risk of harm was manifestly erroneous. Broussard v. State ex. rel. Office of State Bldgs., 11-0479, p. 6 (La.App. 1 Cir. 3/30/12),
UWe note Judge Whipple concurred, writing separately to express her concern that denying a victim’s recovery based on whether a defective condition should be obvious to the victim runs “perilously сlose to resurrecting the doctrine of assumption of the risk.” Broussard, 11-0479 at p. 7 (Whipple, J., concurring). However, in lieu of this Court’s and the First Circuit’s recent jurisprudence focusing on the degree to which a dangerous condition should be observed by a potential victim, Judge Whipple felt compelled to concur in the result.
DISCUSSION
Broussard’s claims against the State are rooted in La. Civ.Code arts. 2317 and 2322. A public entity’s liability for a defective thing within its custody or care is ordinarily analyzed under La.Rev.Stat. § 9:2800(C). La.Rev.Stat. § 9:2800(A), however, exempts buildings from the scope of § 9:2800(C), stating “[a] public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody,” Therefore, § 9:2800(A) directs us to Article 2317 to determine a public entity’s liability for the damages caused by the condition of 'a building within its custody and care.
Because these elevators are component parts of the Tower, Broussard’s claims are properly analyzed under La. Civ.Code art. 2317, as directed by La.Rev. Stat. § 9:2800(A). Article 2317 states “[w]e are responsible, not only for the | ^damage occasioned by our own act, but for that which is caused by ... the things we have in our custody.” La. Civ.Code art. 2322 specifically modifies liability under Article 2317 with respect to the owner of a ruinous building or a defective component part of that building. Article 2322 provides, in pertinent part:
The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should hаve known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....
Under Article 2322, a plaintiff must prove the following elements to hold the owner of a building liable for the damages caused by the building’s ruin or a defective component: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the
lgThe owner of a building is not responsible for all injuries resulting from any risk posed by the building. Entrevia,
To aid the trier-of-fact in making this unscientific, factual determination, this Court has adopted a risk-utility balancing test, wherein the fact-finder must balance the gravity and risk of harm against individual societal rights and obligations, the hnsocial utility of the thing, and the cost and feasibility of repair. See, e.g., Reed, 97-1174 at p. 5,
The second prong of this risk-utility inquiry focuses on whether the dangerous or defective condition is obvious and apparent. Under Louisiana law, a defendant generally does not have a duty to protect against an open and obvious hazard. See, e.g., Hutchinson, 03-1533 at p. 9,
We have stated that if the facts and circumstances of a particular case show a dangerous condition should be open and obvious to all who encounter it, then the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. E.g., Caserta, 12-0853 at p. 1,
In order to avoid further overlap between the jury’s role as fact-finder and the judge’s role as lawgiver, we find the analytic framework for evaluating an unreasonable risk of harm is properly classified as a determination of whether a defendant breached a duty owed, rather than a determination of whether a duty is | iaowed ab initio. It is axiomatic that the issue of whether a duty is owed is a question of law, and the issue of whether a defendant has breached a duty owed is a question of fact. E.g., Brewer v. J.B. Hunt Transp., Inc., 09-1408, p. 14 (La.3/16/10),
Because the determination of whether a defective thing presents an un
Applying these precepts to the case sub judice, we conclude the record contains a reasonable factual basis to support the jury’s determination the offset presented an unreasonable risk of harm to Brous-sard. Moreover, the record supports a finding that the elevator’s defective condition was not an open and 114obvious hazard, as the defect was not readily apparent to all who encountered it. As can be seen from the following application of our risk-utility balancing test, the risk of harm created by the defect was significant when weighed against the elevators’ social utility and the cost of preventing the harm.
Utility of the Elevators
First, we address the utility of the Tower’s elevators. Broussard does not dispute the Tower’s elеvators serve a valuable, perhaps indispensable, societal function. The Tower is a multi-story office building, housing numerous State agencies and approximately 250 State employees. It is necessary for this building to have elevators so these employees can get to and from their offices in an efficient manner and carry on the important business of our State’s government. These elevators, therefore, serve a valuable societal function by quickly shuttling State employees to and from their offices in a large, multistory office tower.
Likelihood and Magnitude of Harm: Open and Obvious
The elevators’ utility, however, must be balanced against the likelihood and magnitude of the harm presented by their defective condition, including whether the defect was open and obvious.
In this case, the State is postured as the owner of a malfunctioning elevator. Because a malfunctioning elevator can quickly become a dangerous instrumentality, Louisiana law places “a high degree of care” upon elevator owners analogous to the degree of care imposed upon common carriers. Rosell,
In light of this heightened standard, an elevator owner, like any property owner, would invariably be required to maintain its elevator in a reasonably safe condition. Cf. Pitre, 95-1466 at p. 9,
The Tower’s malfunctioning elevators presented a significant and likely risk of harm. The State had a heightened degree of care precisely because these elevators were malfunctioning аnd had become dangerous instrumentalities. See Rosell,
The Court of Appeal also found the lack of prior reported injuries persuasive in holding the offset did not present a significant risk of harm. While the absence of prior reported injuries may be one of many factors for the trier-of-fact to consider, it is not an absolute bar to recovery. Numerous appellate decisions have found an unreasonable risk of harm even where the plaintiffs injury was the first reported at a certain place. E.g., Lawrence v. City of Shreveport, 41,825, pp. 89 (La.App. 2 Cir. 1/31/07),
An elevator owner, being akin to a common carrier, does not, however, insure the safety of every individual who may happen to ride its elevator. Cf. Rodriguez v. New Orleans Pub. Serv., Inc.,
To be sure, we have consistently echoed one central theme throughout our open and obvious jurisprudence: If the complained-of cоndition should be obvious to all, then it may not be unreasonably dangerous. E.g., Pitre, 95-1466 at p. 11,
If accepted, defendants’ argument would inject the assumption of risk doctrine into duty/risk analysis “through the back door.” By that, we mean that the argument attempts to define the defendant’s initial duty in terms of the plaintiffs actual knowledge, and thereby seeks to achieve the same result which would be reached if assumption of risk were retained as a defense, i.e., a total bar to the plaintiffs recovery. A defendant’s duty should not turn on a particular plaintiffs state of mind, but instead should be determined by the standard of care which the defendant owes to all potential plaintiffs.
11S521 So.2d at 1136. In contrast, the “open and obvious to all” rule is “sensible ... and does not undermine the comparative fault regime by allowing a plaintiffs negligence to operate as a bar to recovery in a case where the defendant’s conduct poses a risk of harm to the hypothetical blameless plaintiff.” Maraist, et. al., Answering a Fool, 70 La. L.Rev. at 1130. The open and obvious inquiry thus focuses on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim’s actual or potentially ascertainable knowledge. Simply put, we would undermine our comparative fault principles if we allowed the fact-finder to characterize a risk as open and obvious based solely on the plaintiffs awareness of that risk. The plaintiffs knowledge or awareness of the risk creat
Lain this case, there was a reasonable basis upon which the jury could conclude the defect in the Tower’s elevators, while apparent to Broussard, was not “open and obvious to all.” There is no dispute that Broussard was aware of the offset after it impeded his initial attempt to push the dolly onto the elevator. Moreover, Tammy Loupe, the woman who entered the elevator before Broussard, testified she too was aware of the offset. The record, however, contains numerous exhibits highlight-mg instances of State employees either tripping or falling on the elevators after failing to notice they were misaligned. For example, Steve Bowers, a state loss prevention officer, sent a memorandum to his supervisor on October 13, 1999, wherein he reported a dramatic increase in complaints about the Tower’s elevators. In the memo, Bowers recalled an incident where a handicapped employee almost fell while exiting one of the еlevators, which had stopped approximately a foot and a half above the building floor. The record also contains a letter dated February 2, 1999, from Richie Dorian, owner of the maintenance company serving the Tower’s elevators, to the State. In his letter, Dorian states his company received multiple reports of passengers tripping on the Tower’s misaligned elevators. Finally, the jury examined.the July 10, 2000 tenant memo, in which concerned employees from the Department of Social Services recalled numerous instances of employees tripping
The State relies heavily on several of this Court’s recent per curiam opinions. See Pryor, 10-138,
First, Pryor involved a set of metal-frame bleachers. 10-138 at p. 2,
Dauzat, like Pryor, can also be reconciled with our “open and obvious to all” doctrine. In Dauzat, the plaintiff injured his back when he drove an 18-wheel logging truck over a hole in a logging road. 08-0528 at p. 2,
Finally, in Eisenhardt, the plaintiffs live-in girlfriend spilled trash оn the steps of the couple’s apartment. 08-1287 at p. 1,
Admittedly, it appears our recent per curiam opinions have produced a patchwork of inconsistent jurisprudence. However, we emphasize again that each case involving an unreasonable risk of harm analysis must be judged under its own unique set of facts and circumstances. See, e.g., Dupree, 99-3651 at pp. 13-14,
Cost of Preventing Harm
The third prong of our risk-utility balancing test requires the fact-finder to balance the risk of harm against the cost and feasibility of repair. See Reed, 97-1174 at p. 5,
While the State’s hands were tied during the bidding process, there were other inexpensive, interim steps it could have taken to warn employees and visitors of the hazard posed by the Tower’s elevators. Again, the owner of an elevator, like any property owner, has a duty to discover if its elevator is in an unreasonably dangerous condition and, if so, to either correct such condition or warn of its existence. Cf Pitre, 95-1466 at p. 9,
Nature of Plaintiff’s Activity
Finally, the fact-finder must analyze the nature of the plaintiffs activity in terms of its social utility or whether it is dangerous by nature. Pitre, 95-1466 at p. 16,
The State argues Broussard’s act of pulling the dolly over the offset was inherently dangerous. We find there is a reasonable basis in the record upon which the jury could reach the opposite conclusion. First, Broussard testified he encountered and successfully maneuvered his dolly over offsets and curbs on a daily basis, suggesting it was not unreasonable for him to believe he could maneuver his dolly over the minor offset between the elevator and lobby floors. Second, the dolly was not overloaded, as it had a capacity of 500 lbs. and was loaded with only 300 lbs. Finally, the testimony of Pranhngar Draper, which the State relied upon during oral argument, was at best equivocal. Draper’s testimony does not, as the State suggests, lead to the necessary inference that pulling a loaded dolly into an elevator was contrary to Broussard’s training. Draper, a retired UPS risk management supervisor, stated on cross examination, “there’s no reason why it [the dolly] should be pulled into an elevator.” Draper, however, only made this statement after twice making the contradictory statement there were situations in which it would be acceptable for a UPS driver to pull a loаded dolly into an elevator.
Draper further testified UPS encourages delivery drivers to overcome obstacles in field and to do whatever is necessary to get the job done. Thus, according to Draper, UPS tacitly promoted self-reliance and a “can do it” mentality among its drivers. In light of this testimony, the suggestion Broussard should have waited for another elevator or divided his load into multiple, lighter deliveries seems unreasonable and, to Broussard, counterin-tuitive. In any event, considerations such as “the extent of the risk created by the [actor’s] conduct” and |2r,“extenuating circumstances which might require the actor to proceed in haste” are more appropriate considerations for the fact-finder when apportioning fault among all responsible parties. See LeBlanc v. Stevenson, 00-0157, p. 5 (La.10/17/00),
In sum, we find the District Court properly instructed the jury to balance the gravity and risk of harm created by the offset against the elevators’ social utility, as well as the cost and feasibility of repair. Our review of the record in its entirety reveals this balancing weighs in favor of finding the offset presented an unreasonable risk of harm. Under this risk-utility balancing, the elevator’s defective condition was not open and obvious to аll, and thus the risk of harm created by this condition was significant in comparison to the elevators’ social utility and the relatively low cost to the State of preventing the harm. In light of these findings, we conclude the Court of Appeal fell into error by substituting its own judgment of whether the defect presented an unreasonable risk of harm for that of the jury. Under our manifest error review, we find the record clearly supports a reasonable basis for the jury’s findings.
CONCLUSION
After considering the record in its entirety under the manifest error doctrine, we hold a reasonable basis exists to support the jury’s factual determination that a one and one-half to three inch offset between the floor of the elevator and the floor of the Tower’s lobby presented an
DECREE
For the foregoing reasons, we hereby render judgment reversing the judgment of the Court of Appeal. The District Court’s judgment entered in conformity with the jury’s verdict is hereby reinstated in its entirety.
REVERSED AND RENDERED; DISTRICT COURT JUDGMENT REINSTATED IN ITS ENTIRETY.
Notes
Judge Jefferson D. Hughes III was assigned as Justice pro tempore sitting for Kimball, C.J. for oral argument. He now sits as an elected Associate Justice at the time this opinion is rendered.
. The elevators' failure to stop flush with the Tower’s floors was not their only malady. The Department of Social Services employees recounted other instances where the elevators stopped on the wrong floors or “locked up” with passengers still on board. The employees recalled two separate occasions where other employees were forced to manually open one of the elevator’s doors and then jump down four feet to exit the car after the elevator became stuck between floors. Finally, a woman was trapped on one of the elevators as it ascended and descended the Tоwer’s twelve stories several times without stopping.
. In his initial petition, Broussard named only the State as a defendant. After uncovering other potentially liable parties through discovery, Broussard amended his petition twice to name the State's elevator inspection contractor, Elevator Technical Services, Inc. (ETS), and the State’s elevator maintenance contractor, Stratos Elevator, Inc., as defendants. However, these defendants were dismissed from the litigation prior to trial. The District Court dismissed ETS after ETS filed and successfully argued a peremptory exception of prescription, and Stratos was dismissed pursuant to a joint motion to dismiss.
. While this opinion does not contain a bright-line rule because the issue has to be examined on a case-by-case, fact-driven inquiry, our treatment infra does offer some guidance to our lower courts in addressing this difficult area.
. In brief and oral argument, the State argues its potential liability should be analyzed under La.Rev.Stat. § 9:2800(C). We note the elements of a claim under § 9:2800(C) closely parallel the elements of a claim under Article 2322. In order to hold a public entity liable under § 9:2800(C), a plaintiff must prove the following: (1) custody or ownership of the defective thing by the public entity, i.e., garde; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation. Chambers v. Vill. of Moreauville, 11-898, p. 5 (La. 1/24/12),
. We have also made the seemingly contradictory statement that ”[i]t is the court’s obligation to decide which risks are unreasonable based on the facts and circumstances of each case.” Pryor, 10-1683 at p. 4,
Additionally, our courts of appeal have followed Reed and Tillman, characterizing the unreasonable risk harm inquiry as a mixed question of law and fact. See, e.g., Jeansonne v. South Cent. Bell Tel. Co., 08-568, p. 10 (La.App. 5 Cir. 1/13/09),
. In cases addressing the State’s liability for unreasonably dangerous conditions on public roadways, we have stated that the determination of whether a defect presents an unreasonable risk of harm is analogous to the breach element of our duty-risk analysis. E.g., Brooks v. State ex. rel. Dep't of Transp. and Dev., 10-1908, p. 4 (La.7/1/11),
. We have described a common carrier’s heightened standard of care as: "The duty owed by a common carrier in Louisiana to its passengers is stringent, whether it be termed 'the highest standard of care,’ 'highest degree of vigilance, care and precaution for the safety of those it undertakes to transport,’ or ‘the strictest diligence.’ ” Green v. TACA Intern. Airlines,
. Our "open and obvious to all” rule is also mandated by the policy of legislative supremacy. In 1979, the Legislature adopted a pure comparative fault regime, which became effective in 1980, and in 1996, it modified this regime by extending comparative fault principles to virtually all negligent parties. See La. Civ.Code. art. 2323; Acts 1996, 1st Ex.Sess., No. 3, § 1; Acts 1979, No. 431, § 1. As a civil law jurisdiction, we must give deference to the acts and policy choices of the Legislature. See La. Civ.Code arts. 1 and 2 ("The sources of law are legislation and custom," and "[(legislation is a solemn expression of legislative will.”). See also Soloco, Inc. v. Dupree, 97-1256 (La. 1/21/98),
Notably, the phrase "unreasonable risk of harm” is not used in any of the statutes governing premises liability or governmental entity liability. See La. Civ.Code arts. 2317, 2317.1, & 2322 and La.Rev.Stat. § 9:2800. However, Louisiana courts have consistently applied this test in premises liability cases for over 35 years, and the doctrine has attained the status of jurisprudence constante. See, e.g., Dupree, 99-3651 at p. 5,
. Professor Maraist opines that Dauzat potentially creates a professional exception to the "open and obvious to all” rule. Maraist, et. al., Answering a Fool, 70 La. L.Rev. at 1127, 1130. In his view, Dauzat arguably stands for the proposition that if the plaintiff is a member of a class of people who, because of their profession or experience, have knowledge of a risk that should be open and obvious to all members of the class, then the defendant may owe no duty to the members of that class "because of the obviousness of the risk vis-a-vis the group.” Id. Although Professor Maraist's exegesis is a cogent attempt to reconcile Dauzat in light of our sometimes divergent оpen and obvious case law, we decline to adopt this "open and obvious to all (members of a class)” principle. We find that doing so would implicitly sanction what we fervently cautioned against in Murray, i.e., reintroducing "through the back door” the subjective knowledge of the plaintiff and his or her assumption of the risk based on that knowledge.
Dissenting Opinion
dissents.
|U dissent from the majority opinion holding the defendant liable for what amounts to unreasonable conduct on the part of the plaintiff. It is undisputed that the plaintiff saw the 1 ½-8 inch offset between the elevator floor and the lobby floor, yet, instead of waiting for another elevator, the plaintiff attempted to put his 300-pound load onto the elevator, first by pushing it over the offset, then by stepping into the elevator and attempting to pull the load over it. In finding that the 1 ½-3 inch offset between the elevator floor and the lobby floor created an unreasonable risk of harm, the majority finds that the condition was not open and obvious. However, in my view, not only was the condition open and obvious, for the plaintiff admitted that he saw it, but the plaintiff created the unnecessary risk by attempting to pull his loaded dolly over the offset, when it was foreseeable that such an attempt could result in him losing control of his load and being slammed into the back of the elevator. Plaintiffs conduct is the type of voluntary conduct which commentators have characterized as a “situation in which conduct falls within traditional assumption of the risk principles but does not overlap with the conduct that customarily is considered contributory ^negligence ... [one of which is where] the victim voluntarily encounters a known risk that is ‘obvious to all comers,’ sometimes also referred to as an ‘open and obvious risk.’ ” Op. at 184 (citing Frank L. Maraist, H. Alston Johnson III, Thomas Galligan, Jr., William R. Corbett, Answering a Fool According to His Folly: Ruminations on Comparative Fault Thirty Years On, 70 La. L.Rev. 1105,1107 (2011)). These situations where a plaintiffs recovery should be denied because he voluntarily encounters a known risk are “sitting in seats at a hockey game higher than the protective barrier [with respect to] the risk of being struck by an errant puck,” or “sitting down the third-base line at a baseball game, beyond the protective fencing, with respect to the risk of being hit by a foul ball.” 70 La. L.Rev. at 1107. The same can be said of this plaintiff, who created the risk by subjecting himself to a known defect when there were other choices available him, such as
In my view, the facts of this case are analogous to the facts of Pryor v. Iberia Parish School Board, 10-1683 (La.3/15/11),
Further, I disagree with the majority’s analysis of the open and obvious test. The majority finds that the condition was not open and obvious “as the defect was not readily apparent to all who encountered it,” evidently because the record reflected other “instances of State employees either tripping or falling on the elevators after failing to notice they were misaligned.” Op. at 189. However, not only is the test whether the defect should be obvious to all, but it is the complained-of condition, i.e., the offset in the elevator floor in this elevator, which should be obvious to all, not other conditions in which other elevators were misaligned with the floor. Here, this condition, i.e., thе 1 ½-3 inch offset where this elevator floor was elevated above the lobby floor, should have been obvious to all. Indeed, the woman who entered the elevator before the plaintiff testified that she noticed it and it was certainly obvious to this plaintiff. Whether other people failed to notice other conditions wherein elevators in the building failed to properly align with the floor is simply immaterial. I would find that this is an open obvious condition for which the law does not impose liability because the condition should have been obvious to all. Further, if [ ¿comparative fault principles were applicable, I would find that the jury’s assessment of only 38% fault to the plaintiff was manifestly erroneous.
For the above reasons, I respectfully dissent.
Dissenting Opinion
dissents and assigns reasons.
hi respectfully dissent from the majority’s finding that the State owed a duty to the plaintiff under the circumstances of this case.
In Pitre v. Louisiana Tech Univ., 95-1466 (La.05/10/96),
The court of appeal, in my view, correctly held the jury manifestly erred in finding the elevator presented an unreasonable risk of harm. With regard to the 12likeIihood and magnitude of the harm, including the obviousness and apparentness of the condition, I find the lower court’s reasoning well supported by the evidence and jurisprudence. In this particular case, the defective condition, i.e., the 1 l/2-to-3 inch offset between the elevator and the lobby floor, was open and obvious both to the plaintiff and the other passenger in the elevator. Indeed, the passenger testified the plaintiff initially attempted to push the dolly into the elevator but was unsuccessful in doing so. The majority points to no evidence that this particular condition was not obvious to a reasonably aware person approaching the open elevator. The majority cites reports of other elevatоr malfunctions, but such evidence goes to whether the State had knowledge of the elevator’s improper working order, not whether this particular condition presented an unreasonable risk of harm. Otherwise, there is no factual dispute the offset in this particular case was both present and obvious to all comers when the plaintiff entered the elevator car.
However, instead of calling the other elevator, waiting until this car returned to his floor without an offset, or even reducing the weight on his dolly, the plaintiff chose to turn around and attempt to pull the dolly into the elevator over the reasonably discernible offset. Other than the plaintiffs desire to complete his delivery as quickly as possible, the majority cites no evidence the plaintiff was required to enter the elevator under these conditions. As we reasoned in Pryor, the plaintiff here also could have easily avoided the risk presented by the open and obvious offset between the elevator and the floor. Accordingly, I would affirm the court of appeal’s holding that the evidence did not support the jury’s finding that the defect presented an unreasonable risk of harm under the particular circumstances of this case.