Handy v. City of Kenner

97 So. 3d 539, 12 La.App. 5 Cir. 135, 2012 La. App. LEXIS 932, 2012 WL 2476685
CourtLouisiana Court of Appeal
DecidedJune 28, 2012
DocketNo. 12-CA-135
StatusPublished
Cited by6 cases

This text of 97 So. 3d 539 (Handy v. City of Kenner) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Handy v. City of Kenner, 97 So. 3d 539, 12 La.App. 5 Cir. 135, 2012 La. App. LEXIS 932, 2012 WL 2476685 (La. Ct. App. 2012).

Opinion

WALTER J. ROTHSCHILD, Judge.

| ¡.Plaintiff appeals from a judgment rendered against him in this personal injury action. For the reasons stated herein, we affirm.

On December 27, 2005, Gordon E. Handy filed this suit against the City of Kenner and Second Harvest Food Bank of Greater New Orleans and Acadiana and its insurer seeking damages for injuries he sustained on February 14, 2005 while on the food bank premises. Plaintiff alleges that the building which housed the food bank was owned by the City of Kenner, and he alleges he struck his head on the bottom portion of a stairwell while exiting the premises. He contends that defendants are liable for negligence and strict liability, and he prayed for trial by jury. The request for jury trial was subsequently struck, and plaintiffs claims proceeded to a bench trial on July 7, 2011. The matter was taken under advisement, and judgment with reasons was rendered on September 30, 2011 in favor of defendant, the City of Kenner, dismissing plaintiffs petition with prejudice. In its reasons for judgment, the trial court found that the stairwell was an open and obvious condition which did not present an unreasonable risk of harm and that plaintiff was therefore not entitled to relief.

| .¡Plaintiff now appeals from this judgment on the basis of two assignments of error. First, plaintiff contends the trial court was clearly wrong in finding that the defect in the stairwell did not present an unreasonable risk of harm. Secondly, he [542]*542argues that the trial court erred in refusing to let plaintiffs expert testify as to the building code violations which were relevant to plaintiffs case.

Unreasonable Risk of Harm

Generally, the owner or custodian of immovable property has a duty to keep his property in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence. Pryor v. Iberia Parish School Board, 101683, p. 3 (La.3/15/11), 60 So.3d 594, 596. In order to impose liability upon a public entity for damages caused by a building or thing, the existence of a defect or condition creating an unreasonable risk of harm must be established. See La. C.C. art. 2317; La. R.S. 9:2800; Chambers v. Village of Moreauville, 11898 (La.1/24/12), 85 So.3d 593. The absence of an unreasonably dangerous condition or defect implies the absence of a duty on the part of the defendant. Broussard v. State Office of State Buildings, 11-479 (La.App. 1 Cir. 3/30/12), 2012 WL 1079182, citing Oster v. Department of Transportation and Development, State of Louisiana, 582 So.2d 1285,1288 (La.1991).

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 individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Pryor, supra, 10-1683 at p. 3, 60 So.3d at 596 citing Reed, 97-1174 at p. 5, 708 So.2d at 365; Boyle v. Board of Supervisors, 96-1158 (La.1/14/97), 685 So.2d 1080, 1083; In making this determination, courts have adopted a risk-utility ^balancing test. This test encompasses four factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and appar-entness 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. Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541; Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). The ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard. Reed v. Wal-Mart, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner. Williams, supra, 98-1029 at 8, 744 So.2d at 211.

|fiIn the present case, the trial court made a finding of fact that the stair[543]*543well was open and obvious. Like all factual findings, we review a finding of “open and obvious” under the manifest error-clearly wrong standard. Nolan v. Mabray, 10-0373, p. 10 (La.11/30/10), 51 So.3d 665, 672; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). We must determine whether the fact-finder’s conclusion was reasonable. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Further, a trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176.

At trial, Gordon Handy testified that he worked as a diesel mechanic at various jobs for a period of 12-14 years. He stated he was laid off from his job at Avondale in early 2005, and, because he was unemployed, a friend recommended that he visit the food bank in Kenner to pick up supplies. He testified that he went to the food bank in January of 2005 without incident, but he used a separate entrance and exit from the one he used during the accident which is the basis of this lawsuit.

Mr. Handy stated he returned to the food bank on February 14, 2005 for the purpose of getting additional supplies. He stated he signed in at the desk and retrieved a shopping cart and was given several bags of goods which he placed in the shopping cart. As he left the premises through a passageway which he had not previously used, he hit his head on a stairwell, fell and became disoriented. He stated that the stairwell looked like an illusion and he thought he was able to pass through it, but instead he struck it with his head. A young woman helped him up Rand back into the food bank. He attempted to report the incident, but he decided to leave the premises and go home.

Once plaintiff arrived home, he stated he laid down because was feeling poorly and he later called the food bank to discuss the incident. He returned to the food bank the following day and completed an accident report.

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97 So. 3d 539, 12 La.App. 5 Cir. 135, 2012 La. App. LEXIS 932, 2012 WL 2476685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/handy-v-city-of-kenner-lactapp-2012.