Property owners have a duty to keep their property safe against unreasonable risks of harm to those who are invited onto the premises. However, if a potential risk is “reasonable” is a matter of debate. If the hazard in question is obscured, the owner may be liable. But if the hazard is glaringly obvious, it may be the fault of the injured party. The discourse as to what constitutes “open and obvious” is at the heart of this case.
Virgil McCoy was a Cleco employee doing some routine maintenance on an electrical meter in Rosepine Apartments I when fate struck. In an effort to access the meter, McCoy had to walk a narrow path behind a row of overgrown bushes and stand precariously close to an uncovered water meter just to begin the repairs. As he worked, his left foot slid backward and he fell into the hole where the water meter sat. McCoy, and his employer Cleco, filed a lawsuit against Rosepine Seniors Apartments Partnership, their insurers, the property managers, and even the Town of Rosepine, for liability for McCoy’s injuries (collectively called “Defendants”).
The Defendants countered by claiming the hazard the meter presented was “open and obvious,” and McCoy should have been aware of the danger. They moved to have the case dismissed by filing a motion for summary judgment. Summary judgment is when the court decides for one party without a full trial. When the court examines all the information submitted for trial up to that point, e.g. the complaint, the defendant’s answer, items procured in discovery, affidavits, depositions, etc., and finds there is no genuine dispute of fact between the parties, summary judgment is entered. La. C.C.P. art. 966. The one who bears the burden of proving there is no dispute is not so clear-cut. One thing to note is that the party filing the summary judgment motion does not need to show all the elements of the other party’s case are insufficiently proven, but only that one or two elements cannot be met with the evidence presented. The burden then shifts to the other party to show those elements can be met. According to Defendants, McCoy’s complaint failed to meet one particular element of La. C.C. art. 2317.1: whether the hazard presented an unreasonable risk of harm. The Defendants succeeded in their motion, and the trial court dismissed the case via summary judgment.
On appeal, the Louisiana Third Circuit Court of Appeal reversed the summary judgment and remanded the case to the trial court. It based its reasoning on the holding in Broussard v. State ex rel. Office of State Buildings, 113 So. 3d 175 (La. 2013). The Court of Appeal observed that the plaintiff was aware of the hazard, but in order to be “open and obvious,” the hazard must be visible by all. Here, the hedgerow obscured the meter to most. The fact that it was not visible to all means that there is a genuine dispute of material fact which the court must hear to resolve, and therefore, the Defendants cannot win on summary judgment.
Doing your job shouldn’t have to hurt. And suffering an injury is, to say the least, unpleasant. Not only are you coping with pain, but you also have to cope with all the logistical problems that arise from your immobility. How to get to doctor’s appointments, how to get the lawn mowed, how to get your pants over your cast, the litany of injury management issues can be overwhelming. What you do not want to deal with are protracted legal battles. Moreover, you do not want the other side telling you it was your fault. Consulting with an excellent attorney will eliminate some of the anxiety caused by a personal injury lawsuit.
Additional Sources: Virgil McCoy v. Town of Rosepine, et al.
Written by Berniard Law Firm Blog Writer: Matt Keen
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