George Handy, a then out-of-work diesel mechanic, visited the Second Harvest Food Bank in Jefferson Parish on February 14, 2005 to get some provisions. While attempting to leave the building housing the food bank, he struck his head on the bottom portion of a stairwell, allegedly sustaining injuries to his head and neck. The clearance beneath the stairwell was only 6 feet, which was in violation of the applicable building codes. Mr. Handy sued the City of Kenner, the alleged owner of the building, and others for his personal injuries and claimed liability based on negligence and/or strict liability. Following a judge trial in the 24th Judicial District Court for the Parish of Jefferson, Judge Cornelius E. Regan rendered a judgment in favor of the City and found that the stairwell was an open and obvious condition that did not present an unreasonable risk of harm. Mr. Handy appealed, arguing that the trial court erred in failing to find that the stairwell posed an unreasonable risk of harm.
The Louisiana Fifth Circuit Court of Appeal affirmed the trial court’s decision in Handy v. City of Kenner. In reaching its decision, the court focused on whether the trial court erred in finding that the stairwell was not defective or an unreasonable risk of harm. It explained that resolution of the issue required a court to conduct a risk-utility balancing test and consider the following factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs’ activities in terms of its social utility, or whether it is dangerous by nature. In addition, the Court recognized that there can be no liability where the injury results from a condition that should have been observed by an individual in the exercise of reasonable care, or that was as obvious to a visitor as it was to the landowner.
The evidence supporting the plaintiff’s claims included a stipulation that the clearance of the stairwell was insufficient and in violation of the building codes in existence when the structure was built, and the plaintiff’s testimony that the stairwell “looked like an illusion” and that he thought he’d be able to pass underneath it without a problem. Conversely, several pieces of evidence supported the City’s position. First, a friend of the plaintiff testified that she had passed underneath the stairwell several times without problems and that nothing about the stairwell was hidden. The City’s assistant director of the public works department testified that he inspected the stairwell area following the accident and that there was nothing about it that was difficult to see. The supervisor for the food bank testified that the stairwell was not hidden or difficult to see, and she testified that she had not recorded any previous complaints about the stairwell. The record also contained several photographs of the exit area taken after the accident.
Based on the evidence, the Court of Appeals found that the trial court was not clearly wrong in finding that the stairwell was open and obvious and did not present an unreasonable risk of harm. The Court was particularly swayed by the photographs of the stairwell and the testimony of the people who were familiar with the accident scene.
Take-Away: Violation of building codes does not, in and of itself, create liability on the part of a property owner. Rather, where the allegedly defective condition is open and obvious and does not create an unreasonable risk of harm, a property owner may be entitled to judgment in his favor even where the condition was in violation of the applicable building code.
This article was co-authored by Chris Irwin, an associate at Irwin Fritchie Urquhart & Moore LLC