What s Obvious About Open and Obvious? Thomas C. Galligan, Jr. President and Professor of Humanities, Colby-Sawyer College. And. H. Alston Johnson III

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1 What s Obvious About Open and Obvious? Thomas C. Galligan, Jr. President and Professor of Humanities, Colby-Sawyer College And H. Alston Johnson III Senior Partner, Phelps Dunbar I. The adoption of pure comparative fault in Louisiana in 1979, 1979 La. Acts No. 431, effective Aug. 1, 1980 Art Comparative fault A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss. B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability. C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced. II. Louisiana s pure comparative fault regime in perspective: Contributory negligence any negligence of plaintiff bars recovery only about 5 states still follow (Alabama, North Carolina, Virginia, Maryland, and the District of Columbia). Donald G. Gifford, The Death of the Common Law: Judicial Abdication and Contributory Negligence in Maryland, 73 MD. L. REV. ENDNOTES 1 (2013). Comparative fault Page 1 of 16

2 --Pure (about 12 or 13 states) or --Modified (or hybrid): If plaintiff is more at fault or equal in fault to defendant, plaintiff is barred from recovery A recent survey of the states, describes the various approaches followed by states as follows: There appear to be six regimes used in the United States today. Starting with the most plaintiff-friendly and descending, they are: (1) Pure comparative negligence is used in twelve states: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington. In these jurisdictions, plaintiffs can recover a proportional amount of damages unless their share of the negligence is 100 percent (that is, a plaintiff found to be 90 percent negligent could still recover 10 percent of the damage award). (2) One state uses a unique hybrid of pure and modified comparative negligence. In Michigan, pure comparative negligence is applied to economic damages, but the 50 percent form of modified comparative negligence (described below) is applied to noneconomic damages. In other words, plaintiffs who are 50 percent negligent or less recover a proportion of all of their damages, but plaintiffs who are more than 50 percent negligent recover a proportion of their economic damages and none of their noneconomic damages. (3) Modified comparative negligence (50 percent form) is used in twenty-one states: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming. The 50 percent rule is the most plaintiff-friendly of the common modified comparative negligence systems in use. In these jurisdictions, plaintiffs can recover unless their negligence exceeds that of the defendant (that is, a plaintiff who is 50 percent negligent can recover 50 percent, but a plaintiff who is 51 percent negligent recovers nothing). (4) Modified comparative negligence (49 percent form) is used in eleven states: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Tennessee, Utah, and West Virginia. In jurisdictions following the 49 percent rule, plaintiffs can recover as long as their share of the negligence is smaller than that of the defendant (that is, a plaintiff who is 49 percent negligent recovers 51 percent, but one who is 50 percent negligent recovers nothing). (5) A slight-gross rule is used in one state. In South Dakota, a plaintiff's contributory negligence does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant. (6) Contributory negligence is still used in five jurisdictions: Alabama, Maryland, North Carolina, Virginia, and the District of Columbia. In these jurisdictions, any finding of comparative fault bars recovery for the plaintiff. Page 2 of 16

3 Eli K. Best & John J. Donohue III, Jury Nullification in Modified Comparative Negligence Regimes, 79 U. CHI. L. REV. 945, (2012). III. The demise of implied secondary assumption of the risk in Murray v. Ramada Inns, 521 So. 2d 1123 (La. 1988). Facts: The case involved a plaintiff who was doing shallow water dives into a swimming pool at a Ramada, hit his head, and suffered paralysis. Excerpts from the opinion: Most Louisiana decisions which involve the assertion of the assumption of risk defense, however, are cases in which the plaintiff was found to have disregarded a risk created by the defendant's fault (called implied secondary assumption of risk at common law). In these cases, it is not realistically possible to distinguish the plaintiff conduct at issue from contributory negligence. See, e.g., Richards v. Marlow, 347 So.2d 281 (La.App.2d Cir.), writ denied, 350 So.2d 676 (La.1977) (regardless of defendant's negligence, plaintiff could not recover because she assumed the risk of trying to walk on a wet pipe); Giovingo v. Cochiara, 449 So.2d 699 (La.App. 5th Cir.), writ denied 456 So.2d 165 (La.1984) (plaintiff who slipped on concrete boat ramp assumed the risk of injury because he knew that the ramp was slippery); Passman v. Allstate Ins. Co., 208 So.2d 386 (La.App. 1st Cir.), application denied 252 La. 265, 210 So.2d 507 (1968) (plaintiff who had been warned of tractor driver's inexperience assumed the risk of injury by riding on a wagon attached to the tractor). It is a fiction to say that plaintiffs in cases such as these actually consented to, or assumed, the risk of injury. It is much more accurate to conclude that such plaintiffs negligently disregarded a known risk, or, in other words, were contributorily negligent. Thus, by 1980, when the comparative fault system adopted by the Legislature became effective, the status of the law of assumption of risk could charitably be described as confusing. As discussed above, the defense seemed indistinguishable from contributory negligence in most cases, yet could be asserted in strict liability cases even when the defense of contributory negligence was legally unavailable. This case squarely presents the issue of whether the assumption of risk doctrine should have continuing viability now that Louisiana is a comparative fault jurisdiction.fn2 FN2. In cases arising prior to the adoption of comparative fault, this Court did not have occasion to decide whether assumption of risk should have continuing viability. Instead, we frequently and repeatedly found that the defense could not be successfully asserted based upon the facts of the case before us. See Rozell v. Louisiana Animal Breeders Co- Op, 496 So.2d at (plaintiff did not assume an unreasonable risk of injury by entering pen where bull was kept); Bass v. Aetna Ins. Co., 370 So.2d at (plaintiff did not subjectively comprehend any risk of injury associated with praying in church aisle); Dorry v. Lafleur, 399 So.2d at (plaintiff was not aware before the accident Page 3 of 16

4 of the puddle in which he slipped while skating); Dofflemyer v. Gilley, 384 So.2d 435, (La.1980) (no proof in record that plaintiff actually knew or understood the risk of being struck by a car); Prestenbach v. Sentry Ins. Co., 340 So.2d at (no proof that passenger actually knew driver was intoxicated); McInnis v. Fireman's Fund Ins. Co., 322 So.2d at 157 (no proof that plaintiff knew of risk associated with lifting certain equipment); Langlois v. Allied Chemical Corp., 258 La. at , 249 So.2d at 133 (plaintiff fireman may have assumed certain risks, but not the risk created by the defendant's conduct). Thus, in any case where the defendant would otherwise be liable to the plaintiff under a negligence or strict liability theory, the fact that the plaintiff may have been aware of the risk created by the defendant s conduct should not operate as a total bar to recovery. Instead, comparative fault principles should apply, and the victim s awareness of the danger is among the factors to be considered in assessing percentages of fault. Nor does our decision today mean that the result reached in the sports spectator or amusement park cases (common law's implied primary assumption of risk cases) was incorrect. However, rather than relying on the fiction that the plaintiffs in such cases implicitly consented to their injuries, the sounder reasoning is that the defendants were not liable because they did not breach any duty owed to the plaintiffs. For example, in the classical baseball spectator setting, the case for negligence may often fall short on the question of whether the defendant breached a duty owed to the plaintiff. While a stadium operator may owe a duty to spectators to provide them with a reasonably safe area from which they can watch the game, it is generally not considered reasonable to require the stadium operator to screen all spectator areas from flying baseballs. Even while applying assumption of risk terminology to these types of cases, courts have simultaneously recognized that the defendant was not negligent because his conduct vis-a-vis the plaintiff was not unreasonable. See Lorino v. New Orleans Baseball & Amusement Co., 16 La.App. at 96, 133 So. at 408 ( It is well known... that it is not possible... for the ball to be kept at all times within the confines of the playing field. ) On the other hand, the *1135 failure to protect spectator areas into which balls are frequently hit, such as the area behind home plate, might well constitute a breach of duty. These types of cases will turn on their particular facts and may be analyzed in terms of duty/risk. The same analysis applies in other cases where it may not be reasonable to require the defendant to protect the plaintiff from all of the risks associated with a particular activity. See, e.g., Bonanno v. Continental Casualty Co., 285 So.2d at 592 (operator of haunted house provided adequate supervision and space for patrons, and therefore was not negligent). Another argument raised by the defendants deserves attention here, because in light of our holding today, similar arguments might arise in future cases. Defendants suggest that, leaving aside the doctrine of assumption of risk, they should not be liable because they had no duty to protect the Page 4 of 16

5 decedent from a danger of which he had knowledge. In essence, defendants contend here that they were not negligent because the plaintiff voluntarily encountered the risk. The Fifth Circuit wisely rejected this contention. 821 F.2d at 276. 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 plaintiff's 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 plaintiff's recovery. A defendant's duty should not turn on a particular plaintiff's state of mind, but instead should be determined by the standard of care which the defendant owes to all potential plaintiffs. See Robertson, supra, 44 La.L.Rev. at Here, for example, the defendants owed a duty to all potential users of the pool to operate that facility in a reasonably safe fashion. Further, the defendants faced strict liability under civil code article 2317 if the pool constituted an unreasonably dangerous thing over which they had custody and control. The jury found that the pool was operated in an unreasonably dangerous manner after hearing evidence on the absence of warning signs regarding diving, the removal of the diving board and the absence of a lifeguard. The jury further determined that the unreasonably dangerous manner in which the pool was operated was a cause of the decedent's injuries and subsequent death. Once these determinations were made, it was then proper for the jury to consider the decedent's alleged fault. It would not have been proper for the jury to turn this analytical process on its head by finding, as urged by the defendants, that this particular plaintiff's knowledge of the risk rendered the pool operator free from fault. If such a finding were allowed to stand, the decedent's negligent disregard for the risk, i.e., his contributory negligence, would bar recovery despite defendants' fault, and the comparative fault rules of article 2323 would be circumvented. Again, this is not to say that a duty is owed or breached in all situations that involve injury. We have held, for example, that the duty which a landowner owes to persons entering his property is governed by a standard of reasonableness, and that a potentially dangerous condition that should be obvious to all comers is not, in all instances, unreasonably dangerous. See, e.g., Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406, (La.1976). However, the key to a finding of no liability in such cases is not the plaintiff's subjective awareness of the risk, but the determination that the defendant did not act unreasonably vis-a-vis the plaintiff, or injure the plaintiff through the instrumentality of an unreasonably dangerous thing in his custody. The determination of what the plaintiff knew regarding the risk of injury is made after fault on the part of the defendant has been established, and is governed by the comparative fault principles enunciated in La.Civ.Code art Page 5 of 16

6 IV. The rise of the open-and-obvious doctrine in Pitre v. Louisiana Tech University, 673 So. 2d 585 (La. 1996). Facts: After snowstorm in north Louisiana, Tech students were playing in snow, sliding down hills. Plaintiff slid down hill on a garbage can lid, collided with concrete base of light pole, suffered head and back injuries and permanent paralysis. Excerpts from opinion written by Justice Victory: Thus, the obviousness and apparentness of a potentially dangerous condition are relevant factors to be considered under the duty-risk analysis. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Socorro, 579 So.2d at 942, citing Murray, 521 So.2d at When deciding whether a condition is unreasonably dangerous, the obviousness or apparentness of the complained of condition is a factor to be considered as part of the likelihood of the harm element. Under the facts of this case, we find that sledding is not inherently dangerous and that the light pole and the danger of sledding down the hill into the pole were obvious and apparent to all on the evening of the accident. Thus, the light pole did not present an unreasonably dangerous condition and Tech had no duty to warn of the apparent danger or take steps to protect against injury. Further, the Tech Police Department's unwritten policy of stopping dangerous sledding, the Housing Department's Winter Storms Bulletin, and the plaintiff's relationship with Tech do not change this conclusion. Since Tech had no duty to Pitre under these facts, the defendants can not be held liable. Excerpts from concurrence by Justice Lemmon: In my view, the pivotal issue in the duty-risk analysis in this case is not the existence of a duty, but the breach of duty. The duty-risk analysis usually focuses on the general duty imposed upon the defendant by statute or rule of law, according to the relationship between the parties and the circumstances of the particular case, and then determines whether there was a breach of that general duty. The statement that the defendant had no duty, as noted in Professor David W. Robertson et al, Cases and Materials on Torts 161 (1989), should be reserved for those situations controlled by a rule of law of enough breadth and clarity to permit the trial judge in most cases raising the problem to dismiss the complaint or award summary judgment for defendant on the basis of the rule. Thus, a no duty defense generally applies when there is a categorical rule excluding liability as to whole categories of claimants or of claims under any circumstances. In the usual case where the duty owed depends upon the circumstances of the particular case, analysis of the defendant's conduct should be done in terms of no liability or no breach of duty. Page 6 of 16

7 Here, the defendant had a duty to act reasonably in view of the foreseeable risks of danger to students resulting from the winter storm. As noted by the majority, the defendant did act reasonably under the circumstances. The defendant warned students by means of the Winter Storms Bulletin that sledding, while fun, can be dangerous unless limited to proper areas and accompanied by the use of good judgment. The bulletin provided several examples of bad judgment that had led to injuries in the past. Furthermore, the campus police halted any unsafe sledding and other dangerous activities that the officers observed. Because the particular risk in this case of colliding with the light poles was obvious and apparent to everyone, including the plaintiff and his companions, no warning was required, and the defendant did not breach its duty of reasonable care by failing to warn of that particular risk or by failing to erect protective barriers. V. Revision of the open-and-obvious doctrine in Broussard v. State, (La. 4/5/13), 113 So. 3d 175. Facts: UPS delivery person plaintiff tried to push loaded dolly onto elevator in state building. Elevator was not leveling, leaving 1.5 to 3 inch gap between elevator floor and building floor. Unsuccessful, he turned around and pulled dolly in with force, fell against back of elevator and injured himself. Excerpts from majority opinion by Justice Knoll: 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, at p. 1, 90 So.3d at 1043; Dauzat, at p. 4, 995 So.2d at 1186; Hutchinson, at p. 9, 866 So.2d at 234; Pitre, at p. 7, 673 So.2d at 589; Socorro v. City of New Orleans, 579 So.2d 931, 942 (La.1991). While this statement is consistent with our open and obvious to all doctrine, by tethering the existence of a duty to a determination of whether a risk is unreasonable, our prior decisions have admittedly conflated the duty and breach elements of our negligence analysis. See Maraist, et. al., Answering a Fool, 70 La. L.Rev. at , This conflation, in turn, has confused the role of judge and jury in the unreasonable risk of harm inquiry and arguably transferred the jury's power to determine breach to the court to determine duty or no duty. Id. at 1124, 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 owed 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., , p. 14 (La.3/16/10), 35 So.3d 230, 240 (citing Mundy v. Dep't of Health and Human Res., 620 So.2d 811, 813 (La.1993)). The judge decides the former, and the fact-finder judge or jury decides the latter. In the usual case where the duty owed depends upon the circumstances of the particular case, analysis of the defendant's conduct should be done in terms of no liability or no breach of duty. Pitre, at p. 22, 673 So.2d at 596 (Lemmon, J., Page 7 of 16

8 concurring). Because the determination of whether a defect is unreasonably dangerous necessarily involves a myriad of factual considerations, varying from case to case, Reed, at p. 4, 708 So.2d at 364, the cost-benefit analysis employed by the fact-finder in making this determination is more properly associated with the breach, rather than the duty, element of our duty-risk analysis. FN6 See Maraist, et. al., Answering a Fool, 70 La. L.Rev. at 1120 ( [O]ne might persuasively argue that the costbenefit analysis used to determine whether a risk is reasonable or unreasonable is the heart of the breach decision and is one that should be conducted by the fact-finder, rather than by the court... ). Thus, while a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact-finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. In other words, the fact-finder determines whether defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, obviate, or warn of a defect that presents an unreasonable risk of harm. To be sure, we have consistently echoed one central theme throughout our open and obvious jurisprudence: If the complained-of condition should be obvious to all, then it may not be unreasonably dangerous. E.g., Pitre, at p. 11, 673 So.2d at 591; Socorro, 579 So.2d at 942; Murray, 521 So.2d at Thus, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition. See, e.g., Pitre, at p. 11, 673 So.2d at (light poles in the area where college students were sledding were visible to everyone and thus open and obvious); Oster v. Dep't. of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La.1991) (ditch on shoulder of road readily discernable from a considerable distance and thus not unreasonably dangerous). Our open and obvious to all principle is not a hollow maxim. Rather, it serves an invaluable function, preventing concepts such as assumption of the risk from infiltrating our jurisprudence. Over 25 years ago in Murray, we recognized that defining a defendant's initial duty in terms of a plaintiff's, versus everyone's, knowledge of a dangerous condition would preserve assumption of the risk as a defense and undermine Louisiana's pure comparative fault regime: 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 plaintiff's 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 plaintiff's recovery. A defendant's duty should not turn on a particular plaintiff's state of mind, but instead should be determined by the standard of care which the defendant owes to all potential plaintiffs. 521 So.2d at In contrast, the open and obvious to all rule is sensible... and does not undermine the comparative fault regime by allowing a plaintiff's 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 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 Page 8 of 16

9 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 plaintiff's awareness of that risk. The plaintiff's knowledge or awareness of the risk created by the defendant's conduct should not operate as a total bar to recovery in a case where the defendant would otherwise be liable to the plaintiff. Murray, 521 So.2d at Instead, comparative fault principles should apply, and the plaintiff's awareness of the danger is but one factor to consider when assigning fault to all responsible parties under La. Civ.Code art Id. (citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985)).FN8 FN8. 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 [l]egislation is a solemn expression of legislative will. ). See also Soloco, Inc. v. Dupree, (La.1/21/98), 707 So.2d 12, 16 ( It is not the prerogative of the judiciary to disregard public policy decisions underlying legislation or to reweigh balances of interests and policy considerations already struck by the legislature. ). Thus, any rule or system of rules that tends to undermine comparative fault principles to either allow the... [negligent] plaintiff to recover 100%... or allow the faulty defendant to escape liability must be viewed with some skepticism and, if allowed to exist at all, must be kept in relative check. Maraist, et. al., Answering a Fool, 70 La. L.Rev. at Again, the open and obvious to all doctrine keeps principles such as assumption of the risk and contributory negligence in relative check. 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, , & 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, at p. 5, 765 So.2d at 1008; Jones v. Hawkins, (La.3/19/99), 731 So.2d 216, 218; Oster, 582 So.2d at 1288; Landry v. State, 495 So.2d 1284, 1287 (La.1986); Loescher v. Parr, 324 So.2d 441, 446 (La.1975). The phrase open and obvious is also notably absent from any of the premises liability statutes. These concepts embodied in our risk-utility analysis are thus strictly jurisprudential doctrines and cannot undermine or trump the Legislature's will in enacting a pure comparative fault regime. In 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 highlighting instances of State employees either tripping or falling on the elevators after failing to notice they were misaligned. Page 9 of 16

10 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 elevators, 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 while entering or exiting the misaligned elevators. As numerous individuals including those most familiar with the elevators, i.e., State employees working at the Tower failed to notice and tripped over the misaligned elevators, a fact-finder could reasonably infer the defect, while apparent to Broussard, was not open and obvious to all who encountered it. 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, at pp , 765 So.2d at 1012; Reed, 708 So.2d at There is no bright-line rule. The fact-intensive nature of our risk-utility analysis will inevitably lead to divergent results. Moreover, each defect is equally unique, requiring the fact-finder to place more or less weight on different considerations depending on the specific defect under consideration. What may compel a trier-of-fact to determine one defect does not present an unreasonable risk of harm may carry little weight in the trierof-fact's consideration of another defect. For instance, a fact-finder analyzing a defective sidewalk may find the cost and feasibility of repair to the city or municipality outweighs all other considerations. See, e.g., Chambers, at pp. 9 10, 85 So.3d at 600; Reed, 708 So.2d at 366. In contrast, the inherently dangerous nature of the plaintiff's activity may persuade the trier-of-fact to conclude a defective logging road, for example, is not unreasonably dangerous. And here, a defective component part may lead the fact-finder to employ a different *192 weighing and balancing of the unreasonable risk of harm criteria. In short, while the unreasonable risk of harm calculus will remain amorphous, one variable must remain constant: In order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers. Excerpts from dissenting opinion by Justice Victory:... 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., the 1 1/2 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 Page 10 of 16

11 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. VI. Broussard interpreted in Currie v. Scottsdale Indemnity Co., (La. App. 1st Cir. 8/26/13), 123 So. 3d 742. Facts: Plaintiff resident of condominium slipped and fell while trying to jump over water-filled depression in sidewalk. Excerpts from majority opinion by Judge Pettigrew: On April 4, 2013, during the pendency of the appeal, the Supreme Court rendered the decision of Broussard v. State, Office of State Buildings, (La.4/5/13), 113 So.3d 175, which after careful review, we conclude clarified the existing and controlling law applicable to the burden of proof in a cause of action under very similar facts and circumstances. The opinion now very clearly mandates that whether an open and obvious condition is an unreasonable risk of harm, such that liability may be imposed, is not a determination of whether a duty exists (a question of law), but rather, it is a determination of whether that duty was breached, a question of fact. Given that clarification of the law, summary judgment is not proper when a genuine issue of material fact exists as to whether a duty was breached, in cases where the alleged liability arises from an open and obvious condition. Accordingly, applying the now existing interpretation and analysis mandated by the supreme court's decision, the trial court's judgment, granting summary judgment, must be reversed. On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at **6 trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. 966(C)(2); In re Succession of Holbrook, (La.App. 1 Cir. 4/26/13), 115 So.3d 1184; Janney v. Pearce, , p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, , writ denied, (La.9/24/10), 45 So.3d Now, the following dictates from the supreme court in the Broussard opinion guide us in the analysis of the issue raised herein: Page 11 of 16

12 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 owed 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. The judge decides the former, and the fact-finder judge or jury decides the latter. Broussard, at p. 12, 99 So.3d at 50 (citations omitted.) Because the determination of whether a defect is unreasonably dangerous necessarily involves a myriad of factual considerations, varying from case to case, the cost-benefit analysis employed by the fact-finder in making this determination is more properly associated with the breach, rather than the duty, element of our duty-risk analysis. Id. (citations omitted.) Thus, while a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact-finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. In other words, the fact-finder determines whether defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, obviate, or warn of a defect that presents an unreasonable risk of harm. Broussard, at p. 13, 99 So.3d at 50. Because the determination of whether a defective thing presents an unreasonable risk of harm encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court. Id. (citations omitted.) Reversing this court, the supreme court in Broussard reinstated the jury's verdict, which awarded damages to the UPS driver plaintiff notwithstanding that it also assessed him with 38 percent fault. Pursuant to the foregoing dictates, it is inescapable that in this matter, summary judgment is no longer proper. The issue of whether the depression in the sidewalk in this case was an open and obvious condition, such that liability may attach to the landowner if the condition presented an unreasonable risk of harm, and whether, indeed, the condition presented an unreasonable risk of harm, under the particular facts and circumstances of this case, are all genuine issues of material fact remaining and properly determined by the trier of fact employing a duty risk analysis. And, again, guided by the supreme court's Broussard opinion, this determination will include inquiry regarding the social utility of the sidewalk at issue, the likelihood and magnitude of harm, including whether it was an open and obvious condition, the cost of preventing the harm, and the nature of the plaintiff's activity, including any comparative fault that may attach to the plaintiff's conduct. Page 12 of 16

13 Excerpts from concurring opinion by Judge McDonald:... [T]he court opines that there is no bright-line rule in these cases. The risk-utility analysis will lead to different results. However, the court emphasizes that [I]n order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers. Broussard, , 113 So.3d at 192. I believe the court has adopted a bright-line rule. While there may not be a bright-line rule on whether a condition is apparent to the world, the new rule seems to be that the fact-finder must now determine if the duty has been breached and assign fault accordingly using the risk-utility analysis. The supreme court had the opportunity to directly address the question of whether a condition that is open and obvious to everyone absolves the defendant of any duty to the plaintiff or whether a duty is owed to both blameless and careless plaintiffs, alike, and the question is whether there was a breach of the duty. If a breach is found, then comparative fault would be assigned to the parties. The court failed to directly address this issue. Rather than face the prior jurisprudence directly and resolve the confusion, the court attempted to reconcile these conflicting decisions. I believe it would have been a better course of action for the supreme court to have adopted the theory proposed by Professors Maraist, Johnson, Galligan, and Corbett in explaining Dauzat that a class of people is created who have specialized knowledge and experience such that the risk should be open and obvious to all members of this specialized class. In such a case the defendant would owe no duty to the members of this class because the defect is so open and obvious to them. Such an application could be applicable to the facts of our case since Ms. Currie had traversed the sidewalk on numerous occasions and had specialized knowledge of the condition that existed on the sidewalk. Because she had lived there for some time, she was well aware that water frequently pooled or stood at this location and created a risk or harm. However, the supreme court specifically rejected this analysis.4 In attempting to reconcile these various decisions, I believe the supreme court chose a case with poor facts. Broussard is about an elevator that failed to stop evenly with the adjacent floor. It is axiomatic that elevators make numerous trips back and forth among the various floors. Both the state and the employees in the building were aware that this elevator was prone to uneven stopping. There is a reference to one instance in which the elevator stopped more than 18 inches above the floor. Each time the elevator stops it creates a different scenario. Most often the elevator stops even with the floor; sometimes it stops lower than the floor and sometimes it stops above. The issue of open and obvious is different every time the elevator stops. I believe Justice Victory's analysis on this issue is more persuasive. Justice Guidry also points out that the reports of other [prior] elevator malfunctions... 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. Broussard, , 113 So.3d at 196 (Guidry, J. dissenting). Page 13 of 16

14 In choosing a malfunctioning elevator to attempt to reconcile the inconsistent jurisprudence, I believe the court has only increased the uncertainty in this area. A case involving a broken sidewalk, a drop off on the shoulder of a road, a broken stairway, or broken bleachers is the type of case that lends itself more to the result intended by the supreme court. Unlike an elevator, these cases involve a condition that does not change from minute to minute or even from day to day. They lend themselves readily to a query of whether the defect is open and obvious to all and whether a plaintiff should, therefore, have seen it. Since the supreme court has adopted the breach of a duty query for the factfinder, it would seem that it would be more readily applied with these types of defective conditions that do not change from minute to minute. Not all imperfections are defects and not all defects present an unreasonable risk of harm. The majority finds the puddle of standing water on the sidewalk to be a defect. I do not believe standing water on a sidewalk in south Louisiana constitutes a defective condition. And such a condition certainly does not present an unreasonable risk of harm. If so, then there are thousands of such risks after the many rains that occur regularly in Louisiana. However, the particular facts of this case present a unique situation. The pooling water on this sidewalk might not present a defective condition to anyone or everyone who encounters it. But the condition had existed for some extended time and the defendant had even repaired an eight foot section of the sidewalk. This would indicate a recognition that the condition presented a defect and perhaps even a risk of harm. The defendant suggests that they repaired the defective condition and it no longer exists. However, the plaintiff suggests that the original defective condition involved a sixteen foot section of the sidewalk and the defendant only repaired an eight foot section. This is certainly a genuine issue of material fact which would make the case improper for summary judgment. VII. Summary Judgment A. Standard from La. CCP Art. 966: B. (2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. If the motion for summary judgment is denied, the court should provide reasons for the denial on the record, either orally upon rendition or in writing sua sponte or upon request of a party within ten days of rendition. C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. (2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, Page 14 of 16

15 action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. B. Questions --Can summary judgment be granted on the element of breach? Yes, if reasonable minds could not differ on the issue. See, e.g., Misuraca v. City of Kenner, 802 So. 2d 784 (La. App. 5 th Cir. 2001). --Could summary judgment ever be appropriate if a baseball fan is struck by a foul ball while sitting beyond the area which is screened from the field? Could an exception of no cause of action ever be appropriate in such a situation? VIII. Other jurisprudential and legislative bars to recovery in Louisiana tort law A. The professional rescuer s (fireman s) rule: From Gonzales v. Kissner, (La.App. 1 Cir. 9/11/09),24 So. 3d 214: The Professional Rescuer's Doctrine, sometimes referred to as the fireman's rule, is a jurisprudential rule that essentially states, a professional rescuer injured in the performance of his professional duties assumes the risk of such an injury and is not entitled to damages. See, Mullins v. State Farm Fire and Casualty Co., , p. 3 (La.App. 1 Cir. 6/27/97), 697 So.2d 750, 752. However, firemen, police officers, and others who, in their professions of protecting life and property, necessarily endanger their safety; however, do not assume the risk of all injury without recourse against others. Id. citing Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133, 141 (1971)(superseded by statute). Louisiana courts have recognized two exceptions. A professional rescuer may recover for an injury caused by a risk that is independent of the emergency or problem he has assumed the duty to remedy. Chinigo v. Geismar Marine, Inc., 512 So.2d 487, 490 (La.App. 1 Cir.), writs denied, **8 514 So.2d 457 (La.1987). A risk is independent of the task, if the risk-generating object could pose the risk to the rescuer in the absence of the emergency or specific problem undertaken. See, Worley v. Winston, 550 So.2d 694, 697 (La.App. 2 Cir.), writ denied, 551 So.2d 1342 (La.1989). On the other hand, a dependent risk arises from the very emergency that the rescuer was hired to remedy. Henry v. Barlow, , p. 8 (La.App. 3 Cir. 5/4/05), 901 So.2d 1207, The assumption rationale bars recovery from most dependent risks except when: (1) the dependent risks encountered by the professional rescuer are so extraordinary that *220 it cannot be said that the parties intended the rescuers to assume them; or (2) the conduct of the defendant may be so blameworthy that tort recovery should be imposed for the purposes of punishment or deterrence. Gann v. Matthews, , p. 6 (La.App. 1 Cir. 2/23/04), 873 So.2d 701, 705, citing Mullins, pp. 3 4, 697 So.2d at Page 15 of 16

16 B. La. R.S. 9: immunizes any person from damages suffered by a perpetrator of a felony while the perpetrator was committing the felony or fleeing the scene. C. La. R.S. 9: denies recovery to anyone injured while operating a motor vehicle, aircraft, watercraft, or vessel while BAL is 0.08 or more or under the influence of controlled substances and allocated over 25% of the fault due to the intoxication or drugs. D. La. R.S. 14:63 bars recovery from owners, lessees, and custodians by those injured while committing criminal trespass. E. La. R.S. 9: bars recovery by those against whom reasonable force is used in defense of person or property. Page 16 of 16