The open and obvious defense is a common defense in any slip and fall case in Louisiana. Despite its frequent use, courts have been inconsistent in how it should be applied. Some courts have held a defendant owes no duty to a plaintiff if the alleged hazard is open and obvious. Other courts have held the open and obvious defense is just another factor when considering whether a defendant breached their duty to plaintiff.

In Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), the Louisiana Supreme Court recently clarified its prior decisions on the open and obvious defense.

Farrell v. Circle K Stores, Inc. – Background

In Farrell v. Circle K Stores, Inc., plaintiff slipped and fell as she attempted to traverse a pool of water that had collected over twelve days in a Circle K parking lot. Plaintiff filed suit against Circle K and the city. Defendants moved for summary judgment arguing they were not liable because the alleged hazard was open and obvious. Plaintiff opposed the motion stating the hazard was not the pool of water but actually a slippery substance hidden in the water and therefore the hazard was not open and obvious.

The trial court denied Defendants’ motion for summary judgment. Defendants filed a writ application to the Third Circuit, which was denied. Defendants then filed writs with the Louisiana Supreme Court.

Louisiana Supreme Court Ruling

In Farrell, the Louisiana Supreme Court clarified its prior decisions and held the open and obvious defense is just another factor when considering whether defendant breached their duty to plaintiff. The open and obvious defense does not have anything to do with determining the existence of a duty. The Court stated:

Liability is determined utilizing a duty/risk analysis. Generally, there exists a duty to maintain one’s property in a reasonably safe condition and to correct an unreasonably dangerous condition or to warn of its existence. The question of whether a condition is open and obvious and, thus, not unreasonably dangerous, is an issue of breach, not duty. To determine if there has been a breach of a duty owed, courts are to apply the risk/utility balancing test. The second factor of the risk/utility balancing test includes the likelihood and magnitude of harm, which includes the open and obvious nature of the condition. (emphasis added).

Applying a de novo standard of review, the Court went through each element of the duty/risk analysis: 1) duty, 2) breach, 3) cause-in-fact, 4) scope of the duty, and 5) damages. In determining whether defendant breached their duty to Plaintiff, the Court used the risk/utility balancing test which is made up of four parts: 1) the utility of the complained-of condition; 2) the likelihood and magnitude of the harm,including the obviousness and apparentness of the condition; 3) the cost of preventing the harm; and 4) the nature of the plaintiff’s activities in terms of social utility and whether the activities were dangerous by nature.

The Court stated that when determining the likelihood and magnitude of the harm the open and obviousness of the hazard should be considered. The more obvious the risk, the more likely people will avoid the risk, and the less likely it would cause injury.

However, the Court noted that facts such as the size and location of the hazard should be considered because an allegedly hazardous condition “located at the entrance to the store, may ultimately be determined to be unreasonably dangerous; whereas, the same condition, located in the corner of a parking lot, may not be unreasonably dangerous because the likelihood and magnitude of harm is vastly different.” For a condition to be considered open and obvious it must be open and obvious to any reasonable person who may encounter it. Plaintiff’s knowledge of the condition is only appropriate when assessing fault.

Conclusion

Farrell makes clear that the open and obvious defense properly belongs in determining likelihood and magnitude of the harm. As Justice Weimer stated in his concurring opinion, “the statement that ‘no legal duty is owed because the condition encountered is obvious and apparent to all and not unreasonably dangerous,’ should disappear from the jurisprudence… It should be abundantly clear going forward that the relegation of the ‘open and obvious’ defense to its proper role in assessing the likelihood of the harm element of the risk/utility analysis will not preclude summary judgment in the appropriate case.”