Building Code Violations not enough to Sink City in Premises Liability Suit

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

Forgetful Workman Loses Claims After Backing Up Into Open And Obvious Manhole

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.

Tree Cutter's Claims Against Homeowner Felled By Open And Obvious Condition.

Constantino Herrera was hired by Norma Montero to cut a tree branch on her property that was tangled in an overhead cable. When Mr. Herrera cut the branch, it fell in an unexpected manner and caused both Mr. Herrera and his ladder to fall to the ground. As a result of the fall, Mr. Herrera sustained injuries and sued Ms. Montero and her homeowner’s insurer the matter Herrera v. United Fire & Casualty Company

In his lawsuit, Mr. Herrera alleged that Ms. Montero failed to properly maintain the tree and failed to warn him of the dangerous condition; namely, the entanglement of the tree’s branches with the cable. Ms. Montero’s insurer filed a motion for summary judgment arguing that she could have no liability to Mr. Herrera given the fact that he was hired to rectify the same open and obvious condition (i.e. the tangled branches with the cable) that he alleged constituted the breach of the her duty to him. The trial court granted the motion for summary judgment and the Louisiana Fifth Circuit Court of Appeal affirmed. 

In affirming the grant of summary judgment, the appellate court recognized that Mr. Herrera was hired to remove a branch that was visibly tangled in an overhead cable; he determined the means and methods by which he would undertake the job; and, he used his own equipment and judgment in performing the work. Ms. Montero played no part in controlling or directing his efforts. Therefore, Ms. Montero owed no duty to the tree cutter and his claims arising from the tree trimming accident were properly dismissed.  

Take-Away: A person hired to correct or eliminate an open and obvious condition cannot recover from the property owner when his injury is the result of the same open and obvious condition that he was hired to fix, rather than any act or omission of the property owner.

Stairway to Court: What Would a Reasonable Person Do?

In Young v. Guide One Ins. Co., a woman slipped and fell while attending a funeral, failing to notice a semicircular step down from the sanctuary to the reception room. She sued the church and its insurer, and at trial, the jury returned a verdict in favor of the defendants, finding that the step down did not have a defect that created an unreasonable risk of harm (pdf). 

At trial, the plaintiff and fact witnesses presented conflicting evidence regarding the lighting in the area of the fall, with the plaintiff and her relatives testifying that the lighting was dark or dim and the disinterested witnesses testifying that the area was well lit. The plaintiff also admitted that she did not look where she was stepping when she opened the door to the recreation room. The only expert, called by the plaintiff, testified that the church did not meet the requirements of the Life Safety Code, although he admitted that he did not know if the church was old enough to fall within the grace period. He further testified that he was unsure whether the code even applied to religious facilities.

On appeal, the First Circuit held that in order to establish liability based on ownership or custody of a thing, a plaintiff must show the following:

  1. the defendant was the owner or custodian of a thing which caused the damage;
  2. the thing had a ruin, vice or defect that created an unreasonable risk of harm;
  3. the ruin, vice or defect of the thing caused the damage;
  4. the defendant knew or, in the exercise of reasonable care, should have known of the ruin, vice or defect;
  5. the damage could have been prevented by the exercise of reasonable care; and
  6. the defendant failed to exercise such reasonable care.

The determinative issue in this case was whether the step had a defect which presented an unreasonable risk of harm. The court held that the degree to which a potential victim may observe a danger is a factor in determining whether the condition is unreasonably dangerous, and a landowner is not liable for an injury which results from an open and obvious condition. Based on this analysis, the First Circuit held that it could not say that the jury was “clearly wrong” in finding that the step down was not a defect that presented an unreasonable risk of harm. The court affirmed the trial court judgment in favor of the church and its insurer.

Take-Away:  The plaintiff carries the burden of proving the existence of an unreasonably dangerous condition when claiming Landowner liability. When a condition is open and obvious, a jury’s determination of no liability will rarely be reversed.