Plaintiff, Paul Broussard (“Broussard”), a UPS delivery driver, sustained a serious back injury while maneuvering a loaded dolly into one of the misaligned elevators in the Wooddale Tower, a twelve-story, State-owned office building located in Baton Rouge.
Broussard filed suit against the State alleging that the State was negligent in failing to properly maintain and adequately repair a defective thing within its custody and care, thereby creating an unreasonable risk of harm. The jury returned a verdict in favor of Broussard, specifically finding 1) the offset between the elevator and lobby floors created an unreasonable risk of harm, 2) the State had a reasonable opportunity to remedy the defect but failed to do so, and 3) the defect was the proximate cause of Broussard’s injuries. The jury apportioned 38% fault to Broussard and the remaining 62% to the State and awarded Broussard $1,589,890.23 in damages. Once Broussard’s damages were reduced in proportion to his assigned percentage of fault, the trial court rendered a judgment in the amount of $985,732.56.
The State appealed, Broussard v. State ex. rel. Office of State Bldgs. The Court of Appeal reversed, finding that the jury’s determination that the offset created an unreasonable risk of harm was manifestly erroneous. Applying the four-prong, risk-utility balancing test articulated by the Louisiana Supreme Court in Pryor v. Iberia Parish School Board, the Court of Appeal found that the elevator’s social utility outweighed the risk created by its defective, yet readily apparent condition. First, the towers elevators serve an extremely useful, maybe even indispensible, societal function. Second, the defect was open and obvious, thus not presenting a serious risk of harm; further Broussard admitted he was probably aware of the offset when he pulled the dolly into the elevator. Third, Broussard could have avoided injury by either dividing the boxes of paper into multiple, lighter loads or waiting for another elevator. Lastly, there was no record of the elevator’s defective condition causing any injuries in the past. The Court of Appeal found there was no reasonable basis to support the jury’s verdict, concluding the jury was manifestly erroneous in finding an unreasonable risk of harm.
In a per curiam opinion, the Louisiana Supreme Court reversed the Court of Appeal, finding the jury’s unreasonable risk of harm determination not manifestly erroneous, that the record contained a reasonable factual basis to support the jury’s finding that a one and a half to three inch offset between the floor of the elevator and the floor of the Tower’s lobby presented an unreasonable risk of harm. The Supreme Court further found a reasonable factual basis existed to support a finding that the elevator’s defective condition was not an open and obvious hazard, as the defect was not readily apparent to all who encountered it. The Supreme Court held that the State, therefore, breached its duty of care by failing to remedy the defect or warn of its existence until the defect could be remedied. Thus, the judgment of the trial court was reinstated rendered in conformity with the jury’s verdict.
Take-Away: 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. Thus, the fact finder determines whether a defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, prevent or warn of a defect that presents an unreasonable risk of harm.
This article was co-authored by Edie Cagnolatti, counsel with Irwin Fritchie Urquhart & Moore LLC.