Opinion
No. 2012 CA 1666.
2013-08-26
Patricia M. CURRIE v. SCOTTSDALE INDEMNITY COMPANY and Fairway Villas No. 1 Homeowners Association, Inc.
Jeff W. Watson, Baton Rouge, LA, for Plaintiff–Appellant, Patricia Currie. Maria B. De Gracia, Tara L. Mason, Metairie, LA, for Defendants–Appellees, Scottsdale Insurance Company and Fairway Villas No. 1 Homeowners Association, Inc.
Jeff W. Watson, Baton Rouge, LA, for Plaintiff–Appellant, Patricia Currie.Maria B. De Gracia, Tara L. Mason, Metairie, LA, for Defendants–Appellees, Scottsdale Insurance Company and Fairway Villas No. 1 Homeowners Association, Inc.
Before: KUHN, , and McDONALD, JJ.
, J.
In this action seeking damages for injuries sustained as the result of an alleged unreasonable risk of harm created by a large water-filled hole in a sidewalk, the trial court granted the defendants' motion for summary judgment, and denied the plaintiff's cross motion for summary judgment, finding no genuine issues of material fact remained and that the plaintiff was unable to overcome the evidence establishing that the allegedly defective condition and circumstances that led to plaintiff's injuries were “open and obvious” such that the injury could have been avoided by a person exercising reasonable care and prudence; thus, precluding liability. The final judgment reflecting these findings was signed on December 4, 2012. This appeal by the plaintiff followed.
On April 4, 2013, during the pendency of the appeal, the Supreme Court rendered the decision of Broussard v. State, Office of State Buildings, 2012–1238 (La.4/5/13), 113 So.3d 175, which after careful review, we conclude clarified the existing and controlling law applicable to the burden of proof in a cause of action under very similar facts and circumstances. The opinion now very clearly mandates that whether an open and obvious condition is an unreasonable risk of harm, such that liability may be imposed, is not a determination of whether a duty exists (a question of law), but rather, it is a determination of whether that duty was breached, a question of fact. Given that clarification of the law, summary judgment is not proper when a genuine issue of material fact exists as to whether a duty was breached, in cases where the alleged liability arises from an open and obvious condition. Accordingly, applying the now existing interpretation and analysis mandated by the supreme court's decision, the trial court's judgment, granting summary judgment, must be reversed.
FACTS AND PROCEDURAL BACKGROUND
At the time of the relevant facts giving rise to this litigation, the plaintiff, sixty-nine year old Patricia M. Currie, resided in a condominium at 630–6 N. Beau Chene Drive, in Mandeville, Louisiana. The condominium was owned by Fairway Villas No. 1 Homeowners Association and insured by Scottsdale Insurance Company (defendants). Since 2002, by her own admission, Ms. Currie was aware that the sidewalk in front of her condominium had an uneven depression that caused water to accumulate whenever it rains.
After complaints about the condition of the sidewalk were made in 2002 to the defendants by Ms. Currie, among others, repairs were made that were originally to include the 16–foot portion of the paved walkway, including the section in front of Ms. Currie's unit. However, in October 2004, Ms. Currie sent written notice to the manager of the condominiums, notifying him that notwithstanding the repairs, an 8–foot portion containing an uneven depression still remained, consisting of a dip the width of at least one yard in diameter directly in front of her unit and leading to her parking place, which had not been repaired properly, and continued to collect water following rain. Ms. Currie noted that the condition of the sidewalk after a rain made safe passage difficult for her to navigate from the only walkway available to get to her parking place. (The evidence established that Ms. Currie's unit also had a back door; however, she contended that after a rain, that alternative route was equally impassable, as it required her to walk through the “muddy slop” in her yard, which also accumulated water during rain, and still ultimately required her to encounter the risk of slipping and falling.)
On December 30, 2009, the date of the incident giving rise to this litigation, it rained “profusely” all day, resulting in a large accumulation of water, approximately several inches deep in the yard-long sidewalk depression in front of Ms. Currie's unit. According to Ms. Currie, it was evening, she was wearing a floor-length dress and heeled shoes, as she was going to a New Year's party. Notwithstanding her knowledge of the condition of the sidewalk and the potential depth of the accumulated water, Ms. Currie acknowledged that she considered the alternate route of using her back door and navigating the muddy and wet yard untenable, as she was dressed up and did not want to soil her dress and shoes in the mud. By her own acknowledgment, Ms. Currie was walking quickly because it was raining, and she made the choice to attempt to “jump” the yard-long puddle to traverse the sidewalk. Unfortunately, Ms. Currie's attempt to traverse the sidewalk in this manner failed, she slipped and fell in the puddle, and sustained injuries, the recovery for which she instituted this action.
In a petition for damages filed November 16, 2010, Ms. Currie alleged she had no alternative walkway or path to her vehicle in the parking lot other than traversing the 8–foot portion of the sidewalk that she knew had accumulated several inches of water. She contended that she fell and injured herself attempting to traverse the puddle and further alleged these injuries were caused by the fault of the defendants by failing to maintain the premises in a safe condition, by failing to make repairs after several notices, by failing to inspect the area and remove any hazards, and by failing to provide her with a safe living environment and walkway.
Defendants answered the petition, denying any and all responsibility for the plaintiff's injuries, and affirmatively pleading victim fault, comparative fault, contributory negligence, and the fault of the plaintiff to mitigate damages, among other defenses. They alleged the plaintiff failed to use the requisite amount of care, that she failed to see what she should have seen under the circumstances, that she failed to observe an open and obvious condition, and that she committed other acts of personal negligence or fault in her choice to attempt to jump over what she knew to be a dangerous condition.
Motions for summary judgment were filed by both the defendants and the plaintiff. Both motions were heard on May 17, 2012, during which the evidence submitted consisted of the deposition of the plaintiff, copies of correspondence between Ms. Currie and the defendant association wherein she complained of the condition of the sidewalk, as well as responses to discovery requests. The only facts revealed by this evidence that differed from what had been represented in the parties' pleadings were: (1) that after falling, Ms. Currie was able to successfully walk back through the same puddle she had failed to successfully “jump” to get back to her condominium; and (2) that Ms. Currie did have a back door to her condominium leading to an alternate route to get to her vehicle in the parking lot, albeit, it too, required her to walk through muddy water.
ACTION BY THE TRIAL COURT
As noted earlier, the trial court granted the defendants' summary judgment, and denied the plaintiff's cross motion. In so doing, the trial court noted that the condition of the sidewalk had existed for many years, and also that Ms. Currie acknowledged (and the evidence supported) that she was very aware of the condition of the sidewalk, as well as the danger it posed by the accumulation of water after a rain. Based thereon, the trial court concluded it was “an open and obvious condition that the defendant in this case had no duty to warn of what was an apparent risk of trying to get over the condition.”
APPLICABLE LAW AND ANALYSIS
Summary Judgment
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Lewis v. Morgan, 2011–2182, p. 3 (La.App. 1 Cir. 6/8/12), 93 So.3d 741, 743. It should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004–0806, p. 7 (La.6/25/04), 876 So.2d 764, 769 (per curiam). Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Lewis, 2011–2182 at 4, 93 So.3d at 744.
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. 966(C)(2); In re Succession of Holbrook, 2012–1655 (La.App. 1 Cir. 4/26/13), 115 So.3d 1184;Janney v. Pearce, 2009–2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288–289,writ denied,2010–1356 (La.9/24/10), 45 So.3d 1078.
Open and Obvious Condition—Unreasonably Dangerous—Question of Law or Fact?
The trial court held that the depression in the sidewalk where water accumulated was an open and obvious condition, and granted summary judgment in favor of the defendants, apparently following a line of jurisprudence which precludes liability based on a finding that a landowner owes no duty when an allegedly defective condition exists. The plaintiff argues that the trial court erred in concluding that the sidewalk in this case was an open and obvious condition. For the following reasons, we disagree with both.
The evidence in this case, notably the plaintiff's own testimony abundantly established that Ms. Currie was not only aware of the depression in the sidewalk, she was also aware that it was several inches deep and at least one yard across, and that it accumulated with water when it rained. Moreover, the fact that it created a clearly visible puddle in contrast with the rest of the walkway rendered it open and obvious even without Ms. Currie's specific knowledge. Therefore, we do not disagree with the trial court that the sidewalk's defective condition was open and obvious.
However, we nonetheless find that the trial court erred in rendering summary judgment based on that finding, given that the law now clearly mandates that the analysis of whether an open and obvious defect is an unreasonable risk of harm is properly a determination of fact, that takes into consideration the victim's own comparative fault, among other factors; and, accordingly, is not proper for summary judgment.
In Broussard v. State ex rel. Office of State Buildings, 2012–1238 (La.4/5/13), 113 So.3d 175, a UPS delivery driver sustained injuries when he admittedly and voluntarily chose to attempt to traverse a building's visibly misaligned elevators, while maneuvering a loaded dolly (weighing approximately three hundred pounds), by attempting to pull the dolly over a one-half to three-inch elevation caused by the elevator's misalignment. His attempt was unsuccessful, “the inertia created by the pull caused him to lose control of the load and forcefully pushed him into the back wall of the elevator” causing him to sustain a serious back injury. The victim sued, and after a jury trial, the jury awarded him approximately one and one-half million dollars, subject to reduction by the 38 percent fault the jury assigned to the victim. Broussard, 2012–1238, at p. 2, 113 So.3d at 179.
This court, on appeal, reversed, finding the jury's conclusion that the elevator offset created an unreasonable risk of harm because the defect was open and obvious and thus did not present a serious risk of harm, was erroneous. This court noted that the victim could have avoided his injuries by acting more reasonably under the circumstances. Broussard v. State ex rel. Office of State Buildings, 2011–0479 (La.App. 1 Or. 3/30/12), 2012 WL 1079182 (unpublished op.) That opinion based primarily on a line of jurisprudence (emerging from the circuit courts as well as the supreme court) focused on the degree to which a dangerous condition should be observed by a potential victim in determining whether a duty was owed. Id., at pp. 7–8. The supreme court granted certiorari ( Broussard v. State ex rel. Office of State Buildings, 2012–1238 (La.10/26/12), 99 So.3d 50), “to further examine, under the manifest error doctrine, whether a defective condition is more properly considered an open and obvious hazard where no duty is owed, rather than an unreasonably dangerous condition where comparative fault is applicable.” Broussard, 2012–1238, at p. 1, 99 So.3d at 50. (Emphasis added.)
The supreme court's grant of certiorari appears to have been inspired in part by its concern regarding the line of cases and the analyses employed therein that denied a victim's recovery based on whether a defective condition should be obvious to the victim, which runs perilously close to resurrecting the doctrine of assumption of risk. Broussard, 2011–0479 at p. 7.
Now, the following dictates from the supreme court in the Broussard opinion guide us in the analysis of the issue raised herein:
In order to avoid further overlap between the jury's role as fact-finder and the judge's role as lawgiver, we find the analytic framework for evaluating an unreasonablerisk of harm is properly classified as a determination of whether a defendant breached a duty owed, rather than a determination of whether a duty is owed ab initio. It is axiomatic that the issue of whether a duty is owed is a question of law, and the issue of whether a defendant has breached a duty owed is a question of fact. The judge decides the former, and the fact-finder—judge or jury—decides the latter.
Broussard, 2012–1238 at p. 12, 99 So.3d at 50 (citations omitted.)
Because the determination of whether a defect is unreasonably dangerous necessarily involves a myriad of factual considerations, varying from case to case, the cost-benefit analysis employed by the fact-finder in making this determination is more properly associated with the breach, rather than the duty, element of our duty-risk analysis.
Id. (citations omitted.)
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.
Broussard, 2012–1238 at p. 13, 99 So.3d at 50.
Because the determination of whether a defective thing presents an unreasonable risk of harm “encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court.”
Id. (citations omitted.)
Reversing this court, the supreme court in Broussard reinstated the jury's verdict, which awarded damages to the UPS driver plaintiff notwithstanding that it also assessed him with 38 percent fault. Pursuant to the foregoing dictates, it is inescapable that in this matter, summary judgment is no longer proper. The issue of whether the depression in the sidewalk in this case was an open and obvious condition, such that liability may attach to the landowner if the condition presented an unreasonable risk of harm, and whether, indeed, the condition presented an unreasonable risk of harm, under the particular facts and circumstances of this case, are all genuine issues of material fact remaining and properly determined by the trier of fact employing a duty risk analysis. And, again, guided by the supreme court's Broussard opinion, this determination will include inquiry regarding the social utility of the sidewalk at issue, the likelihood and magnitude of harm, including whether it was an open and obvious condition, the cost of preventing the harm, and the nature of the plaintiff's activity, including any comparative fault that may attach to the plaintiff's conduct.
CONCLUSION
Accordingly, the judgment of the trial court, granting summary judgment in favor of Scottsdale Indemnity Company and Fairway Villas No. 1 Homeowners Association, Inc. and dismissing the claims of Patricia M. Currie against them, is hereby reversed. The matter is further hereby remanded to the trial court for further proceedings consistent herewith. Costs of this appeal are assessed to the defendants.
REVERSED AND REMANDED.
McDONALD, J., concurs with reasons.
McDONALD, J., concurring.
For the following reasons I respectfully concur, agreeing only in the result reached. The majority relies on Broussard v. State, Office of State Buildings, 2012–1238 (La.4/5/13), 113 So.3d 175, in reversing the granting of summary judgment by the trial court. They conclude that Broussard “mandates that whether an open and obvious condition is an unreasonable risk of harm, such that liability may be imposed, is not a determination of whether a duty exists (a question of law), but rather, it is a determination of whether that duty was breached, a question of fact.” The majority concludes that summary judgment is not appropriate in determining whether an open and obvious defect is an unreasonable risk of harm because such a determination is a question of fact that must take into consideration the comparative fault of the victim.
There has been some disagreement in the prior case law concerning defects that are open and obvious. Some cases have held that there is no duty owed to an injured plaintiff who either knew or should have observed the defect. This is a legal issue that is decided by the court. Other cases have held that there is a duty to everyone whether careful or careless, but if the defect is open and obvious, there is no breach of the duty. This is a factual issue that is decided by the fact-finder, normally a jury. In Broussard, the supreme court appeared prepared to resolve these issues. In so doing, they stated that they granted writs to determine “under the manifest error doctrine, whether a defective condition is more properly considered an open and obvious hazard where no duty is owed, rather than an unreasonably dangerous condition where comparative fault is applicable.” Broussard, 2012–1238, 113 So.3d at 179. I note that a question of fact is subject to a manifest error review while a question of law is subject to a de novo review. By limiting the inquiry to an analysis under the manifest error doctrine, it would seem that the answer is implicit; since it concerns a determination of facts-it is the task of the jury or fact-finder. The high court goes on further, “... we find the analytic framework for evaluating an unreasonable risk of harm is properly classified as a determination of whether a defendant breached a duty owed, rather than a determination of whether a duty is owed ab initio ... the issue of whether a duty is owed is a question of law, and the issue of whether a defendant has breached a duty owed is a question of fact. The judge decides the former, and the fact-finder—judge or jury—decides the latter.” Broussard, 2012–1238, 113 So.3d at 185.
Pryor v. Iberia Parish School Board, 10–1683 (La.3/15/11), 60 So.3d 594 (per curiam), where the plaintiff injured herself while descending from some metal bleachers. The bleachers had wood planks for sears that doubled as steps. The alleged defective condition was an 18 inch gap between the first and second row. In ascending the bleachers, the plaintiff sat down and swung one leg at a time across the gap. So, she was well aware of the condition. Finding that the bleachers were not unreasonably dangerous, the supreme court affirmed the decision of the district court. It is not totally clear, but it seems the court that there was no duty owed rather than a breach of the duty.
Dauzat v. Curnest Guillot Logging Inc., 08–0528 (La.12/02/08), 995 So.2d 1184, in which an experienced logging truck driver injured himself when driving an 18–wheel logging truck into a pothole on a logging road. He claimed he did not see the hole, but was well aware of the general condition of logging roads and the propensity for such holes. The court found there was no breach of the duty. However, there are some interesting aspects of the court's decision, particularly whether the road condition was obvious to all or only to experienced logging truck drivers.
Eisenhardt v. Snook, 08–1287 (La.3/17/09), 8 So.3d 541 (per curium), wherein the plaintiff slipped on some garbage residue that had been spilled on the steps of his girlfriend's apartment where he lived. After a trial, the court found in favor of the defendant, but it is unclear whether the finding was that no duty was owed or that there was a breach of the duty. The appellate court reversed in part and affirmed in part and allocated fault to each party. The supreme court reversed the court of appeal, but rather than straighten out: the matter, they seem to have denied recovery to the plaintiff because of what he should have known rather than what he actually knew or, more importantly, what would have been obvious to everyone.
Pitre v. Louisiana Tech Univ., 95–1466 (La.5/10/96), 673 So.2d 585. in which a college student used a garbage can lid as a sled to slide down a slope into a campus parking lot after an ice and snow storm. He and three other students laid on their backs facing downhill and were pushed to begin the descent. The lid impacted the concrete base of a light pole and the student was paralyzed. The court found there was no duty owed because of the obvious and apparent danger of sliding down the hill into a light pole.
Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), in which a young man dove into the marked shallow end of a motel swimming pool. He was aware of the dangers of diving into shallow water. He was paralyzed from hitting his head and eventually died from these injuries. The court found that a duty was owed, even though the risk was apparent and obvious to the plaintiff.
This should have ended the inquiry. And if so, the majority is correct, comparative fault is applicable in cases involving an open and obvious defect. The issue is resolved.
However, having started with this result directed theory, the supreme court then deviated into a discussion of open and obvious defects in relation to various prior decisions. But, the court failed to address the fact that some of the decisions were decided on a breach of duty and others that no duty was owed. The court begins by stating: “[W]e have consistently echoed one central theme throughout our open and obvious jurisprudence: If the complained-of condition should be obvious to all, then it may not be unreasonably dangerous.” Broussard, 2012–1238, 113 So.3d at 188. The court inexplicably cites Pitre and Murray in support of its thesis. However, both of these cases were decided on the question of duty, a legal question decided by the court, rather than a breach issue, to be decided by the fact-finder. Both are inapposite to the court's theory that the evaluation of an unreasonable risk is a question of a breach of the duty owed. The court then attempts to reconcile its current theory with the other prior decisions ( Pryor, Dauzat, and Eisenhardt ) under the idea that the defect must be apparent to all or everyone for it to be open and obvious. However, like Pitre and Murray, Pryor is also a no duty case rather than a breach of duty case. While Dauzat and Eisenhardt might involve a breach of the duty rather than no duty, they are really more distinguishable because of the special knowledge that the plaintiff had in each. While this might have created a reasonable exception to the general rule for those who have either special knowledge or professional knowledge, the supreme court specifically declined to adopt such an exception.
Broussard, 2012–1238, 113 So.3d at 190, n. 9.
Next, the court opines that there is no “bright-line” rule in these cases. The risk-utility analysis will lead to different results. However, the court emphasizes that “[I]n order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers.” Broussard, 2012–1238, 113 So.3d at 192. I believe the court has adopted a “bright-line” rule. While there may not be a “bright-line” rule on whether a condition is apparent to the world, the new rule seems to be that the fact-finder must now determine if the duty has been breached and assign fault accordingly using the risk-utility analysis.
The supreme court had the opportunity to directly address the question of whether a condition that is open and obvious to everyone absolves the defendant of any duty to the plaintiff or whether a duty is owed to both blameless and careless plaintiffs, alike, and the question is whether there was a breach of the duty. If a breach is found, then comparative fault would be assigned to the parties. The court failed to directly address this issue. Rather than face the prior jurisprudence directly and resolve the confusion, the court attempted to reconcile these conflicting decisions.
I believe it would have been a better course of action for the supreme court to have adopted the theory proposed by Professors Maraist, Johnson, Galligan, and Corbett in explaining Dauzat that a class of people is created who have specialized knowledge and experience such that the risk should be open and obvious to all members of this specialized class. In such a case the defendant would owe no duty to the members of this class because the defect is so open and obvious to them. Such an application could be applicable to the facts of our case since Ms. Currie had traversed the sidewalk on numerous occasions and had specialized knowledge of the condition that existed on the sidewalk. Because she had lived there for some time, she was well aware that water frequently pooled or stood at this location and created a risk or harm. However, the supreme court specifically rejected this analysis.
Frank L. Maraist, H. Alston Johnson III, Thomas C. Galligan, Jr., & William R. Corbett, Answering a Fool According to His Folly: Ruminations on Comparative Fault Thirty Years On, 70 La. L. Rev. 1105, 1127 (2011).
Broussard, 2012–1238, 113 So.3d at 190, n. 9.
In attempting to reconcile these various decisions, I believe the supreme court chose a case with poor facts. Broussard is about an elevator that failed to stop evenly with the adjacent floor. It is axiomatic that elevators make numerous trips back and forth among the various floors. Both the state and the employees in the building were aware that this elevator was prone to uneven stopping. There is a reference to one instance in which the elevator stopped more than 18 inches above the floor. Each time the elevator stops it creates a different scenario. Most often the elevator stops even with the floor; sometimes it stops lower than the floor and sometimes it stops above. The issue of open and obvious is different every time the elevator stops. I believe Justice Victory's analysis on this issue is more persuasive. He opines:
The majority finds that the condition was not open and obvious “as the defect was not readily apparent to all who encountered it,” evidently because the record reflected other “instances of State employees either tripping or falling on the elevators after failing to notice they were misaligned.” Op. at 19. However, not only is the test whether the defect should be obvious to all, but it is the complained-of condition, i.e., the offset in the elevator floor in this elevator, which should be obvious to all, not other conditions in which other elevators were misaligned with the floor. Here, this condition, i.e., the 1 1/2–3 inch offset where this elevator floor was elevated above the lobby floor, should have been obvious to all. Indeed, the woman who entered the elevator before the plaintiff testified that she noticed it and it was certainly obvious to this plaintiff. Whether other people failed to notice other conditions wherein elevators in the building failed to properly align with the floor is simply immaterial.
Broussard, 2012–1238, 113 So.3d at 195 (Victory, J., dissenting).
Justice Guidry also points out that the “reports of other [prior] elevator malfunctions ... goes to whether the State had knowledge of the elevator's improper working order, not whether this particular condition presented an unreasonable risk of harm.” Broussard, 2012–1238, 113 So.3d at 196 (Guidry, J. dissenting).
In choosing a malfunctioning elevator to attempt to reconcile the inconsistent jurisprudence, I believe the court has only increased the uncertainty in this area. A case involving a broken sidewalk, a drop off on the shoulder of a road, a broken stairway, or broken bleachers is the type of case that lends itself more to the result intended by the supreme court. Unlike an elevator, these cases involve a condition that does not change from minute to minute or even from day to day. They lend themselves readily to a query of whether the defect is “open and obvious” to all and whether a plaintiff should, therefore, have seen it. Since the supreme court has adopted the “breach of a duty” query for the fact-finder, it would seem that it would be more readily applied with these types of defective conditions that do not change from minute to minute.
Not all imperfections are defects and not all defects present an unreasonable risk of harm. The majority finds the puddle of standing water on the sidewalk to be a defect. I do not believe standing water on a sidewalk in south Louisiana constitutes a defective condition. And such a condition certainly does not present an unreasonable risk of harm. If so, then there are thousands of such risks after the many rains that occur regularly in Louisiana.
However, the particular facts of this case present a unique situation. The pooling water on this sidewalk might not present a defective condition to anyone or everyone who encounters it. But the condition had existed for some extended time and the defendant had even repaired an eight foot section of the sidewalk. This would indicate a recognition that the condition presented a defect and perhaps even a risk of harm. The defendant suggests that they repaired the defective condition and it no longer exists. However, the plaintiff suggests that the original defective condition involved a sixteen foot section of the sidewalk and the defendant only repaired an eight foot section. This is certainly a genuine issue of material fact which would make the case improper for summary judgment.
For these reasons, I concur only in the result reached by the majority and would also reverse the judgment of the trial court.