Williams v. Leonard ChabertMed. Ctr., 98-1029 (La.App. 1st Cir. 9/26/99), 744 So.2d 206, 209, writ denied, 00-0011 (La. 2/18/00), 754 So.2d 974. The fact that an accident occurred because of a vice or defect does not elevate the condition of the thing to that of an unreasonably dangerous defect.
Further, the lack of reported complaints regarding a complained-of condition indicates a low risk of harm. Chambers, 85 So.3d at 602; Davis, 2018 WL 1704095 at *4; also see Williams v. Leonard Chabert Medical Center, 98-1029 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 210, writ denied, 00-0011 (La. 2/18/00), 754 So.2d 974.
Another factor relevant to the risk of harm in a sidewalk case is the number of years the defect has existed relative to the pedestrian traffic and the number of incidents reported. See Chambers, 85 So.3d at 599 ; Williams v. Leonard Chabert Medical Center, 98–1029 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 210, writ denied, 00–0011 (La.2/18/00), 754 So.2d 974. The City/Parish's evidence established that the sidewalk damage originated approximately ten or more years prior to Temple's accident, and the severity of damage changed very little during the six years preceding the accident. These facts were unchallenged by Temple.
In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the utility of the thing (in this case, a sidewalk). Oster v. Department of Transportation and Development, State of Louisiana, 582 So.2d 1285 (La. 1991); Williams v. Leonard Chabert Medical Center, 98-1029 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, writ denied, 2000-0011 (La. 2/18/00), 754 So.2d 974. As part of this balance, the court should consider a broad range of social, economic and moral factors, including the cost to defendant to avoid the risk and the social utility of plaintiff's conduct at the time of the accident. Id.
"Where, as here, the alleged negligence concerns an alleged defect in a premises, the determination of whether the custodian owed a duty of care turns upon whether the condition was `unreasonably dangerous.'" Centanni v. U.S., No. 03-627, 2004 WL 385057, at *2 (E.D. La. Feb. 27, 2004) (Engelhardt, J.) (citing Williams v. Leonard Chabert Medical Center, 744 So. 2d 206, 209 (La.Ct.App. 1st Cir. 1999), writ denied, 754 So. 2d 974 (La. 2000)); see also Varnell v. Louisiana Tech University, 709 So. 2d 890, 893 (La.Ct.App. 2d Cir. 1998) ("In a slip and fall claim based on negligence, the defendant's awareness of the dangerous condition of the premises gives rise to a duty to act.") The absence of an unreasonably dangerous condition implies the absence of a duty on the part of the defendant. Williams, 744 So. 2d at 209 (citing Oster v. Department of Transportation and Development, State of Louisiana, 582 So. 2d 1285, 1288 (La. 1991).
Bufkin v. Felipe's Louisiana, LLC, 171 So. 3d 851, 856 (La. 2014). Williams v. Leonard Chabert Medical Center, 744 So. 2d 206, 211 (La. App. 1 Cir. 1999). Williams v. Liberty Mutual Fire Ins. Co., 217 So. 3d 421, 425 (La. App. 1 Cir. 2017).
Where, as here, the alleged negligence concerns an alleged defect in a premises, the determination of whether the custodian owed a duty of care turns upon whether the condition was "unreasonably dangerous." Williams v. Leonard Chabert Medical Center, 744 So.2d 206, 209 (La.App. 1st Cir. 1999), writ denied, 754 So.2d 974 (La. 2000). See also Rigdon v. United States, 2003 WL 1618569 (E.D. La.). The "absence of an unreasonably dangerous condition . . . implies the absence of a duty."
It is accurate to state that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Pitre v. Louisiana Tech University, 95-1466, 95-1487, p. 11 (La. 5/10/96) 673 So.2d 585, 591; see also, Williams v. Leonard Chabert Medical Center, 98-1029, p. 8 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 211, writ denied, 00-0011 (La. 2/18/00), 754 So.2d 974. Specifically, in a trip and fall case, the duty is not solely with the landowner. A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear.
An accident, alone, does not support the imposition of liability, particularly considering the normal hazards pedestrians face while traversing sidewalks and parking lots in this state. Williams v. Leonard Chabert Medical Center, 98-1029 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 211, writ denied, 2000-0011 (La. 2/18/00), 754 So.2d 974. A pedestrian has a duty to see what should be seen and is bound to observe his course to see if his pathway is clear.
This test encompasses four 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. Pitre v. Louisiana Tech University, 95–1466 (La.5/10/96), 673 So.2d 585,cert. denied,519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996). see also, Williams v. Leonard Chabert Medical Center, 98–1029, p. 8 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 211,writ denied,00–11 (La.2/18/00), 754 So.2d 974. It is also well-settled that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff.