Jan 12, 2023

Open and Obvious Doctrine

Written by Megan Champagne

Trip-and-fall or slip-and-fall accidents occur every day. In fact, such premises liability accidents are some of the most common personal injury claims. While some of those trip-and-falls or slip-and-falls may only cause a momentary instance of embarrassment, others can cause serious injuries. One defense that the Louisiana Supreme Court has recognized to premises liability accidents is that of the open and obvious doctrine.

In a premises liability claim against a property owner, the injured party must prove, among other things, that the thing had a defect and presented an unreasonable risk of harm.[1] Whether a defect presents an unreasonable risk of harm must be determined in light of the facts and circumstances of each particular case.[2] Courts have adopted a risk-utility balancing test to determine whether a condition is unreasonably dangerous.[3] Under this risk-utility balancing test, courts are required to consider these four pertinent factors: (1) the utility of the complained-of-condition; (2) the likelihood and magnitude of the harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff’s activities in terms of social utility or whether the activities were dangerous by nature.[4]

A defendant does not generally have a duty to protect against an open and obvious hazard.[5] In order for a hazard to be considered open and obvious, the hazard should be one that is open and obvious to everyone who may potentially encounter it.[6] If a risk of harm is open and obvious to all who may encounter it, the likelihood that it will cause harm is diminished, and it will not be considered unreasonably dangerous under Louisiana law.[7] Therefore, the defendant may owe no duty to the injured party.[8]

 One recent case involving the open and obvious doctrine stems from the Louisiana Fifth Circuit Court of Appeal. In Tromatore v. Jefferson Par. Hosp. Serv. Dist., the Court of Appeal affirmed the trial court’s determination that the risk of harm presented by the concrete base of a 20-foot light pole that is 18 inches wide and 4 inches high was not open and obvious and therefore, was unreasonably dangerous.[9] The trial court’s decision centered on the fact that the concrete base is virtually indistinguishable from the concrete walking surface surrounding it due to their dark color caused by an accumulation of mold and dirt.[10] The court also determined that the base is often partially obstructed by shadows from a nearby ramp and light post.[11] Further, the court’s decision also considered that fact that the base had not been painted bright yellow like the other trip hazards in and around the walkway; thereby, making it more open and obvious to pedestrians navigating the area.[12] Despite the size of the light pole and its base, the court concluded that the concrete base was not open and obvious.[13]

Again, the main thing to remember when considering the open and obvious doctrine is that “[t]he focus on whether an alleged defect is open and obvious is ‘on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the [injured person’s] actual or potentially ascertainable knowledge.’”[14]

[1] Louisiana Civil Code article 2317.

[2] Broussard v. State ex rel. Off. Of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 183-84.

[3] Id. at 184; Bufkin v. Felipe’s Louisiana, LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856.

[4] Id.

[5] Broussard, 113 So.3d at 184.

[6] Id.; Caserta v. Wal-Mart Stores, Inc., 12-0853, p. 1 (La. 6/22/12), 90 So. 3d 1042, 1043 (per curiam).

[7] Broussard, 113 So.3d at 184.

[8] Morange v. Troxler, 20-386 (La. App. 5 Cir. 10/27/21), 329 So.3d 1105, 1109.

[9] Tromatore v. Jefferson Par. Hosp. Serv. Dist., 21-551 (La. App. 5th Cir. 5/26/22), 341 So.3d 1269.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.; Christiano v. S. Scrap Recycling, 13-595 (La. App. 5 Cir. 12/27/13), 131 So.3d 1059, 1064 quoting Broussard, 113 So.3d at 188.