Written by: Colin L. Casciato
Recently, the Louisiana Supreme Court clarified the “open and obvious” doctrine in Farell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/2023). The Court held that whether a condition is open and obvious is a factor to be considered under the breach of duty element and not the duty element.
In Farell, the Plaintiffs stopped at a Circle K to get gas. One of the Plaintiffs got out of the car to take their dog for a walk. As this Plaintiff was walking across the parking lot, she had to traverse a pool of water. She fell and sustained injury when she attempted to step over the water. Plaintiffs filed a lawsuit for personal injury. Defendants moved for summary judgment, arguing they were not liable because the alleged hazardous condition was “open and obvious.” The trial court denied the motion for summary judgment and the appellate court denied the writ application. Defendants filed a writ to the Supreme Court, which was granted.
The Supreme Court noted that whether the claim arises in negligence under La. C.C. art. 2315 or in premises liability under La. C.C. art. 2317.1, the duty/risk analysis is the same. Under the duty/risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of duty element); and, (5) proof of actual damages (the damages element).
The Court noted that whether a condition is open and obvious has been considered a part of the duty element in some cases and a part of the breach of duty element in other cases. The Court stated that even after prior attempts at clarification, lower courts still held there was no duty when the condition was open and obvious.
Under the breach of duty element, the Court noted a risk/utility balancing test is used. The following four factors are considered in the risk/utility balancing test: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of 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.
The Court stated that the likelihood and magnitude of the harm includes a consideration of the open and obviousness of the condition. The Court noted that the phrase “open and obvious” is a figment of judicial imagination and does not appear in any of the premises liability statutes. The Court noted that the analysis of whether a condition is open and obvious has been applied inconsistently in the jurisprudence.
The Court specifically stated in Farrell that “whether a condition is open and obvious is embraced within the breach of the duty element of the duty/risk analysis and is not a jurisprudential doctrine barring recovery, but only a factor of the risk/utility balancing test.” “Specifically, it falls within the ambit of the second factor of the risk/utility balancing test, which considers the likelihood and magnitude of the harm.”
“For a hazard to be considered open and obvious, it must be one that is open and obvious to all who may encounter it.” “The open and obvious concept asks whether the complained of condition would be apparent to any reasonable person who might encounter it.” “Whether the plaintiff has knowledge of the condition is irrelevant in determining whether the thing is defective.” However, “the plaintiff’s knowledge is appropriately considered in assessing fault but is not appropriate for summary judgment proceedings.” The Court concluded that the pool of water at issue in this case was not an unreasonably dangerous condition, no breach occurred, and the Court granted summary judgment for the defendants.
The Court made it clear that if you are arguing a condition is open and obvious, this argument should be made under the breach of duty element. While defendants may have preferred that open and obvious be considered under the duty element because the existence of a duty is a question of law, the Court made it clear that summary judgment can still be granted on the breach of duty element, a mixed question of law and fact. Practitioners should avoid arguing that a defendant does not have a duty because the condition is open and obvious. Instead, under the breach of duty element, they should argue that the condition would be apparent to any reasonable person and that a reasonable person would avoid encountering the condition. If the condition is apparent, that factor would be in favor of finding the condition was not unreasonably dangerous due to its open and obvious nature. If the condition is not unreasonably dangerous, there is no breach of duty, and summary judgment can be granted in favor of the defendants.