For All the World to See: Open and Obvious Conditions Preclude Liability

Posted on August 5, 2010 by Ed Trapolin

Eighty-two year old Mildred Watts was a regular patron at The Country Place Restaurant in Minden, Louisiana. She often entered the restaurant by walking on two circular stones in a flower bed positioned in between the parking lot and the restaurant entrance. On October 1, 2006, she became the first person to trip on a metal strip bordering the flower bed.  When she fell she sustained serious injuries to her mouth and teeth.

Ms. Watts filed suit against the restaurant and its insurer, Scottsdale Insurance Company, arguing that the metal strip posed an unreasonable risk of harm and that defendants were liable for her injuries. The trial and appellate courts disagreed and found that the condition was not unreasonably dangerous because it was open and obvious. The courts found that the restaurant did not owe a duty to Ms. Watts due to the open and obvious nature of the strip.

Both courts considered that the metal strip was about four inches tall and clearly visible to the naked eye. The restaurant manager testified that no one had tripped over or complained of the metal strip in the nine years that he worked there. The manager further stated that the stones in the flower bed were decorative, not stepping stones, and patrons were not encouraged to use it to enter the restaurant. Ms. Watts even admitted that she saw the strip on her previous visits to the restaurant, but never tripped over it. Importantly, on the day of her accident, nothing obstructed her vision of the strip.

Both courts disagreed with Ms. Watts’ argument that the sole purpose of the metal strip was to trip pedestrians and that it was difficult to see because it was a dark brown/green color among dirt and plants. Rather, the strip clearly bordered the flower bed, and the area was not a designated walkway for patrons.  The courts found that the metal strip was open and obvious and did not present an unreasonable risk of harm. Accordingly, the restaurant owed no legal duty to Ms. Watts and her claims were dismissed.

Nevertheless, Ms. Watts was not completely without a remedy. Ms. Watts recovered $5,000.00 policy limits, plus interest, from Scottsdale Insurance Company under a no-fault medical payments provision of its policy, for her medical expenses incurred as a result of her injuries.

Take-Away: A property owner does not have a duty to warn about or remove conditions that are open and obvious and, thus, do not pose an unreasonable risk of harm.

This article was co-authored by Laura Beth Graham, a 2010 summer associate at Irwin Fritchie Urquhart & Moore LLC.

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French Fry "Rim" Sinks Restaurant's Motion for Summary Judgment

Posted on July 27, 2009 by Douglas Moore

Although the Louisiana Slip and Fall Statute (pdf) provides a narrow avenue of potential liability, the Louisiana First Circuit’s May 8, 2009 decision in Guillory v. Outback Steakhouse of Florida, Inc. (pdf) demonstrates the relatively low evidentiary threshold that is needed to circumvent the defenses supplied under the statute. On January 28, 2006, Geraldine Guillory visited an Outback Steakhouse in East Baton Rouge Parish.  During her visit,  Ms. Guillory excused herself to visit the restroom and upon returning, Guillory allegedly slipped on a french fry and fell to the floor. A waitress who was standing at a nearby table picked up the remains of the potato while another customer helped Ms. Guillory to her feet. Guillory and her husband filed suit against Outback alleging various injuries associated with the fall. 

After the completion of discovery, Outback filed a Motion for Summary Judgment on the basis that the Plaintiffs could not offer sufficient evidence that it had knowledge of the alleged dangerous condition (the french fry) as required under Louisiana Revised Statute 9:2800.6 (pdf). The trial court agreed and granted the Motion for Summary Judgment.  On appeal, however, the First Circuit disagreed and reinstated the case against Outback. After reciting the Louisiana Slip and Fall Statute, the First Circuit recognized that a merchant cannot be liable for injuries associated with a slip-and-fall unless the plaintiff can demonstrate that the slip-and-fall was caused by a “dangerous condition” on the property, that the merchant had actual or “constructive” knowledge of the condition and, despite this knowledge, failed to exercise reasonable care. Because the plaintiffs could produce no evidence as to how the french fry ended up on the floor, the First Circuit correctly reasoned that the case would turn on whether the plaintiffs had provided sufficient evidence to demonstrate “constructive” knowledge.  Citing the Louisiana Supreme Court’s decision in White v. Wal-Mart, the First Circuit reasoned that in order to demonstrate “constructive” knowledge, the plaintiffs need only show that the condition existed for “some period of time.” 

Applying the “some period of time” standard, the First Circuit re-analyzed the testimony of the case and reversed Outback’s dismissal. The First Circuit relied principally upon the testimony of two Outback employees who testified that the french fry was “stuck to the floor” and that a “rim” had remained after it was picked up. This, together with hearsay statements of patrons that they had “seen” a piece of french fry on the floor, was sufficient for the First Circuit to conclude that there existed sufficient evidence to raise a genuine issue of material fact as to whether Outback had “constructive” knowledge of the dangerous condition. 

Take-Away:  This case demonstrates that even the slightest evidence can sometimes defeat a summary judgment motion. Although the plaintiffs could not demonstrate that any Outback employee was responsible for the fry falling to the floor, could not demonstrate that an Outback employee had seen the fry and failed to respond to it, could not demonstrate exactly when the fry fell to the floor, and offered no evidence of how it could have become stuck for a sufficient amount of time to form a “rim,” these deficiencies were not so great as to preclude the case from going to trial.

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