Opinion
No. 43, 128-CA.
May 14, 2008.
Appeal from the Twenty-Sixth Judicial District Court, Parish of Bossier, No. 119,730, Dewey E. Burchett, Jr., J.
Rice Kendig by J. Marshall Rice, Shreveport, for Appellant.
Hubley, Marcotte, Rhodes and Hussey by Michael S. Hubley, Shreveport, for Appellees.
Before BROWN, WILLIAMS, CARAWAY, PEATROSS and LOLLEY, JJ.
I dissent because the wet, and possibly slippery, steps do not create an unreasonable risk of harm. Daily life presents multiple situations that have potential to cause injury. The key is that the risk must be unreasonable. Ms. Snook testified that the garbage bag broke on the steps spilling the garbage. She then cleaned up the garbage with a broom and then further sprayed the steps with water from a hose. Even if there was some residue on the steps, I cannot agree that such residue, after a concerted effort to clean it, created an unreasonable risk of harm in this case. The mere fact that a surface was wet, whether made so by the homeowner or by rain, or had a minimum amount of slippery substance on it does not rise to the level of an unreasonable risk. To do so would be akin to holding a homeowner to the level of strict liability for any injury occurring on his property.
Further, I disagree with the majority that the trial court made a factual determination that there was an unreasonable risk of harm. At most, the trial court concluded that Plaintiff was "probably injured and probably fell," but specifically avoided making a credibility determination whether either was true. The trial court's statement that "he should have seen the water and known that there was a hazard" was in the context of its reasons that, essentially, even if there was a hazard, Plaintiff could not recover due to Plaintiffs fault. The trial court disposed of the case based solely on Plaintiffs own fault and made no factual determinations as to whether an unreasonable risk of harm existed that would be subject to our review based on manifest error.