Louisiana Defenses: Open and Obvious (Part I)
Litigation is tough and sometimes, no matter how well you do your job, you can still end up on the wrong side of summary judgment. That is the lesson from Gomes v. Harrah, Inc., Civil Action No. 16-17483 (US E.D. La. December 15, 2017). In Gomes, the plaintiff admitted in her deposition that the condition at issue was “open and obvious” and defense counsel provided plenty of photographic evidence showing the nature of the condition. But, summary judgment was still denied. Frankly, it appears the District Court ruled in error. In a companion article, we discuss a case in which it appears, by contrast, the Louisiana Court of Appeals got it right. See Granier v. Navigator Specialty Ins. Co., Case No. 2017 CA 1126 (La. App. 1st Cir. April 26, 2018) (unpublished).
At issue in the Gomes v. Harrah, Inc. case was a one-half inch depression in a sidewalk outside of the Harrah’s Hotel in New Orleans. The Plaintiff was celebrating her birthday at the end of October 2015 and, after dinner, in the early evening (about 5:30 pm) while it was still light out, she was walking along the sidewalk behind the hotel going to a nearby parking garage. As she was walking, Plaintiff stepped onto a slightly depressed area of the sidewalk and fell, causing injuries to her knees and back. The parties agreed that the deviation in the sidewalk measured a depth of less than a one-half (½) inch. Plaintiff claimed that she did not trip, but rather stepped into the depressed area, losing her balance, and then fell. The Plaintiff sued the company that managed the Harrah’s Hotel on theories of negligence, claiming that the sidewalk condition presented an unreasonable risk of harm.
The hotel defended on several legal grounds, including the defense of “open and obvious.” In New Orleans, a merchant or an operator of a hotel — such as Harrah’s — has a duty “to exercise reasonable care” to keep the premises free of any hazardous conditions. However, if the defective condition is obvious and apparent, a landowner does not have a duty to protect against it.
In the Gomes case, defense counsel did an admirable job of working up facts proving that the condition was open and obvious. First, counsel obtained numerous photos of the sidewalk area. Then, during her deposition, counsel showed these photos to the plaintiff. The plaintiff admitted that the condition was obvious and that, had she seen the deviation in the sidewalk, she could have easily avoided it. Counsel also obtained testimony from the relevant manager at the hotel to the effect that the sidewalk had constant and heavy traffic and that there had been no prior falls on the sidewalk. Further, counsel provided the district court with Louisiana legal citations holding that minor variations in concrete levels were not unreasonably dangerous. See e.g., Reed v. WalMart Stores, 708 So. 2d 362 (La. Supreme Court March 4, 1998) (reversing trial court verdict for plaintiff; holding that “… no reasonable finder of fact could conclude that the defect at issue presented an unreasonable risk of harm…”; alleged defect was ¼ to ½ inch height variance between concrete sections of parking lot). Based on the foregoing, defense counsel filed for summary judgment. In rendering its denial of the defendant’s summary judgment motion, the court noted that “[t]he size of the variation is minimal…”. The plaintiff argued that the depression in the sidewalk was “too small to be obvious” but still large enough for her to fall into. Furthermore, she claimed that she was walking “normally” and that to see the depression in the sidewalk, she would have had look down at the concrete constantly. As for the photos, the court stated that they were not sufficient for the granting of summary judgment. The court stated: “What may be obvious in a photograph, may not be obvious to those reasonable persons traversing the location with ordinary care. This is especially true given the small, sunken nature of this deviation and the limited perspective the photographs provide.”
It is a surprising result, particularly given Louisiana’s case law in this area. In our view, the District Court got it wrong. Sometimes, despite counsel’s best efforts, the case must go to trial.
Defending Louisiana Premises Liability: Contact New Orleans Attorney Kristin M. Lausten
If you have been sued for negligence, you are going to need an experienced Louisiana defense attorney. Ms. Lausten has experience in defending negligence lawsuits, from simple slip and fall cases to complex toxic tort litigation. Ms. Lausten can be contacted at 504.377.6585 or via email at firstname.lastname@example.org.
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