For decades, the Louisiana Supreme Court has grappled with the “open and obvious” liability defense, making several attempts to determine its proper use within Louisiana’s duty-risk negligence analysis. The latest of these cases is Farrell v. Circle K Stores, Inc. and the City of Pineville, in which the Court changed course from multiple of its prior decisions and clarified that the open and obvious determination is not a matter of duty for the court to decide, but a matter of breach for the fact finder. This note explains the open and obvious defense, Louisiana Supreme Court precedent pre-Farrell, the Farrell case, and the implications of the Court’s recent decision.
The open and obvious defense often arises in premises liability cases, where individuals sustain injuries as a result of hazardous or dangerous conditions on the property of another. These individuals have a cause of action against the owner or legal custodian of the property under Louisiana Civil Code article 2317, which provides generally that “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” The following Code article, 2317.1, specifies the scope of premises liability for ruin, vices, or defects in property: “[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, 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 these Code articles, landowners have a legal duty to discover dangerous conditions on their property and to either correct the condition or warn patrons of its existence. There is no doubt that landowners who fail to mitigate or warn the public of unreasonably dangerous conditions are liable for resulting injuries to patrons on the property. But landowners asserting the open and obvious defense argue that hazardous conditions that are “open and obvious to all” are not unreasonably dangerous, so liability should not follow.
In several pre-Farrell decisions dating back to the 1990s, the Louisiana Supreme Court inconsistently applied the open and obvious analysis. The problematic question was whether the hazardous condition at issue was “unreasonably dangerous.” In Pitre v. Louisiana Tech University, 95-1466 (La. 5/10/96), 673 So.2d 585, the considered this inquiry as part of the “duty” analysis. By tethering the open and obvious determination to the duty element, the Court effectively rendered it a question of law to be decided by the court, not the fact finder. The Court granted summary judgment for the defendant, holding that the hazardous condition at issue was open and obvious, and thus that the defendant owed no duty to the plaintiff.
But in Broussard v. State, 2012-1238 (La. 4/15/13), 113 So.3d 175, the Court parted ways with its Pitre analysis. The Court criticized its prior open and obvious decisions for improperly classifying the open and obvious determination as a legal issue of duty—thus “confus[ing] the role of the judge and jury in the unreasonable risk of harm inquiry and arguably transferr[ing] the jury’s power to determine breach to the court to determine duty or no duty.” Instead, the Court suggested that the question of whether a hazard presents an unreasonable risk of harm is a pure question of fact reserved for the fact finder.
The following year, in the Court granted certiorari in the case of Bufkin v. Felipe’s Louisiana, LLC, 14-288 (La. 10/15/14), 171 So. 3d 851, and changed its open and obvious analysis yet again—seemingly abandoning the breach-based approach from Broussard and re-adopting the duty-based approach from Pitre. The Bufkin Court reversed the district court’s decision and granted summary judgment in favor of the defendant based on its determination that the hazardous condition at issue was not unreasonably dangerous, thus the defendant owed no duty to the plaintiff.
The Pitre, Broussard, and Bufkin line of cases blurred the line between the duty and breach elements of Louisiana’s negligence analysis, causing uncertainty among courts and litigants. Even more concerning was the effect: the Pitre/Bufkin duty-based approach and the Broussard breach-based approach could yield drastically different outcomes in otherwise similar cases, especially in the summary judgment context. Issues of fact as to the risks posed by the injury-causing condition that could preclude summary judgment under the breach-based approach were left up to the court under the duty-based approach, arguably making summary judgment more likely under the latter than the former. Pitre and Bufkin are perfect examples.
Farrell involved a plaintiff who decided to walk her dog in a grassy area near a gas station. In order to reach the grassy area, the plaintiff attempted to step over a pool of water and fell. The plaintiff filed suit against the owner of the gas station and the City of Pineville, Louisiana. The Defendants then filed a Motion for Summary Judgment arguing that the pool of water was open and obvious to the plaintiff.
The Farrell Court scrutinized its prior open-and-obvious decisions one-by-one and openly acknowledged the resulting confusion. Writing for the majority, Justice Genovese explained that the Court undertook review of Farrell to “rectify” the open and obvious defense. The remainder of the opinion clearly explains the role of the open and obvious inquiry within the broader negligence framework and explains its implications in the summary judgment context.
First, Justice Genovese explained that the open and obvious inquiry has no bearing on the question of duty. Instead, the question must be considered as part of the breach inquiry—specifically, the second factor of the risk/utility balancing test—which considers the likelihood and magnitude of the harm using a reasonable person standard. The court advised that the condition, size and location of the hazard are factors for consideration,
but the plaintiff’s subjective awareness of the condition has no bearing on the analysis.
Finally, Justice Genovese clarified that the breach-based approach is not an outright bar to summary judgment, which remains the appropriate remedy in open and obvious cases where the defendant makes a showing that reasonable minds could only agree that the injury-causing condition was not unreasonably dangerous. Proving this point, the Farrell court concluded that the gas station-defendant met this burden and granted its summary judgment motion, reversing the trial court’s decision.
Farrell seems to clarify years of inconsistent caselaw concerning the open and obvious defense. While renewed breach-based approach may yield fewer summary judgments for defendant-property owners, the Farrell decision exemplifies that it does not preclude summary judgment altogether.