Opinion
2022 CW 0826
12-29-2022
CHARLENE BLALOCK v. SHELTER GENERAL INSURANCE COMPANY AND FRANK M. FLANAGAN
In Re: Shelter General Insurance Company and Frank M. Flanagan, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 696079.
BEFORE: WHIPPLE, C.J., MCDONALD, McCLENDON, HOLDRIDGE AND PENZATO, JJ.
WRIT GRANTED. We grant this writ application and reverse the trial court's August 1, 2022 judgment denying the motion for summary judgment filed by defendants, Shelter General Insurance Company and Frank M. Flanagan. We find that the air purifier cord was an open and obvious condition such that defendant is entitled to summary judgment. Under Louisiana law, a defendant generally does not have a duty to protect against an open and obvious hazard. Broussard v. State ex rel. Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 184. Plaintiff Charlene Blalock, who was familiar with the home's layout because she was employed as a housekeeper, testified that she was not watching where she was going, that she did not look down when she tripped, did not look at the area first before she began cleaning, and that nothing obstructed her view at the time of her fall. Defendant, Frank M. Flanagan, testified he did not have any recollection of moving the air purifier or its cord in the time period leading up to this incident. A pedestrian is not required to look for hidden dangers, but is bound to observe his course to see if his pathway is clear. Millet v. Cormier, 95-953 (La.App. 3d Cir. 3/27/96), 671 So.2d 1101, 1106, writ denied, 96-1026 (La. 5/31/96), 673 So.2d 1036. We therefore reverse the trial court's August 1, 2022 judgment denying the motion for summary judgment, grant the motion for summary judgment filed by defendants, Shelter General Insurance Company and Frank M. Flanagan, and dismiss all claims of Charlene Blalock against Shelter General Insurance Company and Frank M. Flanagan with prejudice.
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Holdridge, J., dissents and would deny the writ. To determine that a condition is open and obvious presupposes that such condition is defective. See Broussard v. State ex rel. Off. of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 185, 192 ("In order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers. . . Thus, 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. In other words, the factfinder determines whether defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, obviate, or warn of a defect that presents an unreasonable risk of harm.") I find that genuine issues of fact preclude summary judgment herein, as a reasonable interpretation of the evidence is that the defendant homeowner created the defective condition and failed to warn plaintiff of such condition. Accordingly, I find summary judgment inappropriate.
APPLICATION FOR REHEARING GRANTED. The application for rehearing is granted for the purpose i of consideration of the writ by the newly constituted panel following the retirements of Chief Judge Whipple and Judge McDonald.
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Holdridge, J., concurs. To determine that a condition is open and obvious presupposes that such .condition is defective. See Broussard v. State ex rel. Off. of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 185, 192 ("In order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers. . . Thus, 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. In other words, the fact-finder determines whether defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, obviate, or warn of a defect that presents an unreasonable risk of harm.") Genuine issues of fact preclude summary judgment herein, as a reasonable interpretation of the evidence is that the defendant homeowner created the defective condition and failed to warn plaintiff of such condition. Accordingly, summary judgment is inappropriate.
McClendon and Penzato, JJ., dissent and would grant the writ and the motion for summary judgment, dismissing plaintiff's claims. We find that the air purifier1 cord was an open and obvious condition such that defendant is entitled to summary judgment. Under Louisiana law, a defendant generally does not have a duty to protect against an open and obvious hazard. Broussard v. State ex rel. Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 184. Plaintiff Charlene Blalock, who was familiar with the home's layout because she was employed as a housekeeper, testified that she was 'not watching where she was going, that she did not look down whgn she tripped, did not look at the area first before she began cleaning, and that nothing obstructed her view at the time of her fall. Defendant, Frank M. Flanagan, testified he did not have any recollection of moving the air purifier or its cord in the time period leading up to this incident. A pedestrian is not required to look for hidden dangers, but is bound to observe his course to see if his pathway is clear. Millet v. Cormier, 95-9$3 (La.App. 3d Cir. 3/27/96), 671 So.2d 1101, 1106, writ denied, 96-1026 (La. 5/31/96), 673 So.2d 1036.