Louisiana Premises Liability Blog : Louisiana Premises Liability Lawyer & Attorney : Irwin Fritchie Urquhart & Moore Law Firm : LA Slip & Fall, Property Security : New Orleans, Baton Rouge

In Fluence v. Marshall Bros. Lincoln-Mercury Inc., Larry Fluence, a worker who was part of a paving crew that was pouring asphalt pavement at the Marshall Brothers car dealership’s lot, fell into an open manhole and severely injured his back. Mr. Fluence sued the property owner, Marshall Brothers, and the subcontractor that installed the underground drainage system and left the manhole cover off, Labiche Plumbing Inc. (Labiche). 

Both Marshall Brothers and Labiche moved for summary judgment on the grounds that (1) they did not breach a duty to Mr. Fluence and (2) the open manhole did not present an unreasonable risk of harm. It was undisputed that Mr. Fluence was part of a crew that was hired to pave around the new drainage system, including the manhole, and that he had inspected the property on the morning of the accident and was aware of the open manhole. Moreover, the manhole was clearly visible from 20 feet away. Given these facts, Marshall Brothers and Labiche argued that the manhole was open and obvious and did not present an unreasonably dangerous condition to Mr. Fluence. In response, Mr. Fluence contended that he forgot about the hole later in the day when he was walking backwards in the parking lot and “smoothing off” the asphalt. And, although he should bear some fault for his carelessness, fault should also be assigned to Marshall and Labiche. The trial court disagreed and granted summary judgment in favor of Marshal Brothers and Labiche.

On appeal, Mr. Fluence argued that Marshall Brothers breached a duty to protect him or to warn him of a known dangerous condition while he was on the property. He further argued that Labiche had a duty to warn him of the condition, replace the manhole cover, or place a barrier to prevent people from getting near the hole. The appellate court noted that although a landowner owes a duty to people entering its premises to discover unreasonably dangerous conditions and to either repair them or warn of their existence, there is no duty to warn of an open and obvious condition. Quoting Louisiana case law, the court stated that whether a condition is unreasonably dangerous is determined by considering: “(1) the utility of the complained-of condition; (2) the likelihood and magnitude of the harm (which includes the obviousness and apparentness of the harm); and (3) the nature of the plaintiff’s activities in terms of its social utility or whether it is dangerous in nature.” Finding that Mr. Fluence admitted knowing of the open manhole prior to the accident and that his job entailed patching the holes up to and around the open manhole, the court held that Marshall Brothers and Labiche owed no duty to repair the condition or warn Mr. Fluence  about the open and obvious condition. Accordingly, the appellate court affirmed the trial court’s ruling.

Take-Away: Property owners who hire workmen to perform work and repairs on their property may avoid liability for injuries suffered by the workmen if the injury results from an open and obvious condition, especially when the workmen acknowledge that they were aware of the condition before the accident occurred.

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The case Falcon v. Louisiana Dept. of Transportation arises out of a motor vehicle accident involving a mother and her three children. On the day of the accident the mother was driving her vehicle with her three minor children as passengers. When she approached a T-shaped intersection, she allegedly ran a stop sign and then after attempting to turn left her vehicle was broadsided by a truck traveling on the intersecting highway. Although her children only sustained minor injuries, she suffered a severe closed head injury, which ultimately required that she be legally interdicted under the curatorship of her father “Plaintiff”. 

Plaintiff filed a personal injury action on behalf of his daughter and her three children alleging that defendants’ placement of a large billboard at an intersection of two roads constituted an unreasonably dangerous condition to motorists. Named as defendants were the State of Louisiana, through the Department of Transportation and Development (“DOTD”), the owner of the land on which sign was erected and its insurer, as well as the owners of the sign and their insurers. The billboard in question measured sixteen (16) feet in width by approximately eight (8) feet in height and was alleged to have extended two feet into the State's right-of-way along La. Hwy. 1 in violation of La. R.S. 48:461.2. This statute provides, in part:

No outdoor advertising shall be erected or maintained within six hundred sixty feet of the nearest edge of the right of way and visible from the main traveled way of the interstate or primary highways in this state....

The defendants filed a motion for summary judgment asserting that the entire lawsuit should be dismissed because the placement of the billboard did not present an unreasonably dangerous condition to motorists and because the mother failed to act as a reasonable motorist. The trial court granted summary judgment as to the landowner, its insurer and the DOTD, but denied the motion as to owners of the sign and their insurers. With respect to those entities, the court found that there existed a genuine issue of material fact as to whether the billboard contributed to the accident. Plaintiff appealed the trial court’s dismissal of the landowner, its insurer and the DOTD on the basis that it was not appropriate to rule as a matter of law that an uncontested sight obstruction did not constitute an unreasonably dangerous condition. The only issues before the appellate court were whether there were genuine issues of material fact (1) as to whether the billboard presented an unreasonably dangerous condition and (2) as to whether the mother failed to act as a reasonably prudent motorist under the circumstances.

The appellate court first considered the issue of whether the billboard presented an unreasonably dangerous condition. The court noted that it was undisputed that at a certain point along the highway, the placement of the billboard obstructed the view of motorists. Thus, the only issue was whether the obstruction was sufficient to constitute an unreasonably dangerous condition. Finding that this inquiry was inherently a factual determination, the appellate court reversed the finding of the trial court and held that there were genuine issues of fact as to whether the billboard obscured the view of the mother thereby creating an unreasonable risk of harm.

The court next addressed the issue of whether the mother failed to act as a reasonably prudent motorist under the circumstances. Defendants argued that to defeat summary judgment Plaintiff had to overcome two separate presumptions: (1) that a left-turning motorist involved in a collision that occurs across the center line is at fault in causing the accident; and (2) that a motorist who runs a stop sign resulting in a collision is similarly at fault in causing the accident. Plaintiffs countered that there were factual disputes with respect to each contention put forth by defendants. First, the other driver in the accident testified that he did not know which direction the mother intended to travel and the investigating officer refused to state that she was definitively attempting to execute a left-hand turn. Second, one of the mother's daughters, who was a passenger in vehicle, testified that just prior to the accident her mother stopped at the stop sign. Lastly, Plaintiffs contended that it was the placement of the billboard that caused the accident – not the mother’s alleged failure to act in a reasonably prudent manner. The appellate court found that these issues of fact were sufficient to defeat defendants’ summary judgment motion and reversed the ruling of the trial court.

Take Away: Courts are reluctant to uphold the dismissal of a case via summary judgment when there are arguable issues of material fact as to the events and circumstances surrounding an accident, especially where a plaintiff has sustained catastrophic injuries.

This article was co-authored by John Garrett, an associate at Irwin Fritchie Urquhart & Moore LLC.

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