ROSE GEORGE AND MELVIN * NO. 2022-CA-0148 GEORGE * VERSUS COURT OF APPEAL * ABC INSURANCE COMPANY FOURTH CIRCUIT AND SOUTHERN * UNIVERSITY OF NEW STATE OF LOUISIANA ORLEANS *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-04164, DIVISION “A” Honorable Ellen M Hazeur, Judge ****** JAMES F. MCKAY III JUDGE PRO TEMPORE ****** (Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro Tempore James F. McKay III)
SALVADOR MICHAEL BROCATO III BROCATO LAW FIRM, PLC 3333 West Napoleon Avenue, Suite 101 Metairie, Louisiana 70001 Counsel for Plaintiffs/Appellants
WM. DAVID COFFEY ASSISTANT ATTORNEY GENERAL REUBEN M. THOMAS ASSISTANT ATTORNEY GENERAL LOUISIANA DEPARTMENT OF JUSTICE 1450 Poydras Street, Suite 900 New Orleans, Louisiana 70112 Counsel for Defendant/Appellee, Southern University at New Orleans
REVERSED AND REMANDED
OCTOBER 26, 2022 JFM Appellants-Plaintiffs, Rose and Melvin George, appeal the trial court TFL DNA judgment, dated January 20, 2022, which granted the exception of no cause of
action filed by Appellee-Defendant, State of Louisiana, through the Board of
Supervisors of Southern University and Agricultural and Mechanical College, on
behalf of Southern University at New Orleans, and dismissed Plaintiffs’ claims
with prejudice. For the following reasons, we reverse and remand for further
proceedings.
FACTS AND PROCEDURAL HISTORY
This lawsuit stems from an incident that occurred on or about June 25, 2016,
while Plaintiffs, Rose and Melvin George (“Plaintiffs”), were attending a funeral
repast inside a facility located on the campus of Southern University at New
Orleans (“SUNO”). According to the petition, the building at the time did not have
an operable AC/HVAC system. Plaintiffs claim that the guests were advised by
SUNO representatives that the air conditioning issue would be remedied and that
they were safe to enter. Plaintiffs further allege that after entering the facility, they
decided to exit, and that Rose George was overcome by dizziness as a result of the
excessive heat, fell, and broke her ankle.
1 As result of the incident, on May 2, 2017, Plaintiffs filed a negligence and
premises liability suit against SUNO and ABC Insurance. Plaintiffs allege that the
inoperable AC/HVAC system created an unreasonably dangerous temperature in
the building, which caused Rose George to injure her ankle.1
On January 24, 2018, Plaintiffs requested leave to amend their petition,
which the trial court granted. Plaintiffs’ supplemental and amended petition added
the Board of Supervisors of Southern University and Agricultural and Mechanical
College; Southern University System; and the State of Louisiana as defendants and
supplemented their allegations.
In response, the State of Louisiana, through the Board of Supervisors of
Southern University and Agricultural and Mechanical College, on behalf of
Southern University at New Orleans (“Defendant”), filed an exception of no cause
of action.2 In the exception, Defendant claimed Plaintiffs failed to state a cause of
action because Plaintiffs admitted the allegedly defective condition at issue was
1 The petition and supplemental and amending petition were not in the record but are attached to
the briefs.
2 This is the second time Defendant filed the exception of no cause of action. Previously, on
December 14, 2017, Defendant filed exceptions of insufficient service of process, lack of procedural capacity, vagueness and ambiguity, nonconformity to La. C.C.P. art. 891, and no cause of action. A hearing on the exception of insufficient service of process was held, and by judgment dated October 1, 2018, the trial court granted the exception, dismissing Plaintiffs’ suit with prejudice. The trial court deemed the remaining exceptions moot in light of the granting of the exception of insufficient of service of process. Plaintiffs appealed and this Court reversed and remanded the case. See George v. ABC Ins. Co., 2019-0124 (La. App. 4 Cir. 5/8/19), 271 So.3d 1289, writ denied, 2019-944 (La. 9/24/19), 279 So.3d 886. Defendants re-urged the exception of no cause of action on October 27, 2021.
2 open and obvious and thus Defendant owed no duty and cannot be liable to
Plaintiffs.
The matter came for hearing before the trial court on December 28, 2021,
and the trial court granted the exception of no case of action from the bench. The
trial court rendered judgment on the exception on January 20, 2022, and dismissed
Plaintiffs’ claims with prejudice.
Plaintiffs’ appeal follows. DISCUSSION
Plaintiffs argue the trial court erred in granting the exception of no cause of
action and dismissing their claims with prejudice because the amended petition
sufficiently states a cause of action for negligence and premises liability against
Defendant and because the question of whether the hazardous condition was open
and obvious to all is a mixed question of law and fact for the fact-finder.
Law Governing Exceptions of No Cause of Action
The function of an exception of no cause of action is to determine “whether
the law extends a remedy against the defendant to anyone under the factual
allegations of the petition.” Parker v. Paladin Contractors, LLC, 2020-0492, p. 7
(La. App. 4 Cir. 3/3/21), 314 So.3d 1128, 1134 (quoting Badeaux v. Sw. Computer
Bureau, Inc., 2005-0612, p. 7 (La. 3/17/06), 929 So.2d 1211, 1217).
“No evidence may be introduced to support or controvert
an exception of no cause of action.” Daniels v. State, 2020-0175, p. 5, (La. App. 4
Cir. 10/21/20) --- So.3d ----, ----, 2020 WL 6156387 at * 2, writ denied sub
nom. Daniels v. Bd. of Elementary & Secondary Educ., 2021-00008 (La. 3/2/21),
311 So.3d 1055 (citing Moses v. Moses, 2015-0140, p. 3 (La. App. 4 Cir. 8/5/15),
3 174 So.3d 227, 229-30). Thus, the exception is triable on the face of the petition
and each well-pleaded fact must be accepted as true. Id. (citing Moses, 2015-0140,
p. 3, 174 So.3d at 230).
“All reasonable inferences are made in favor of the nonmoving party in
determining whether the law affords any remedy to the plaintiff.” Danna v. Ritz-
Carlton Hotel Co., L.L.C., 2020-0116, p. 5, (La. App. 4 Cir. 3/24/21) --- So.3d ----,
----, 2021 WL 1159726 at * 10, writ denied, 2021-00714 (La. 10/1/21), 324 So.3d
1053, and writ denied, 2021-00713 (La. 10/1/21), 324 So.3d 1059 (quoting City of
New Orleans v. Bd. of Directors of Louisiana State Museum, 98-1170, p. 9 (La.
3/2/99), 739 So.2d 748, 755). The burden of showing that the plaintiff has stated
no cause of action is upon the exceptor. Id.
“A court appropriately sustains the peremptory exception of no cause of
action only when, conceding the correctness of the facts, the plaintiff has not stated
a claim for which he or she can receive a legal remedy under the applicable
substantive law.” Daniels, 2020-0175, p. 5, 2020 WL 6156387 at * 2 (quoting
Deutsche Bank Nat’l Tr. Co. as Tr. for Morgan Stanley ABS Cap. I Inc., Tr. 2004-
WMC2 v. McNamara, 2017-0173, p. 4 (La. App. 4 Cir. 10/18/17), 316 So.3d 881,
883, writ denied sub nom. Deutsche Bank Nat’l Tr. Co. for Morgan Stanley ABS
Cap. I Inc. Tr. 2004-WMC2 v. McNamara, 2017-1918 (La. 2/2/18), 235 So.3d
1111. “Every reasonable interpretation must be accorded the language used in the
petition in favor of maintaining its sufficiency and affording the plaintiff the
opportunity of presenting evidence at trial.” Id.; see also An Erny Girl, L.L.C. v.
BCNO 4 L.L.C., 2018-0360, p. 6 (La. App. 4 Cir. 9/26/18), 257 So.3d 212, 218
(stating “[a]n exception of no cause of action should be granted only when it
4 appears beyond doubt that the plaintiff can prove no set of facts in support of any
claim which would entitle him to relief”).
“In reviewing a trial court’s ruling sustaining an exception of no cause of
action, the appellate court should subject the case to de novo review because the
exception raises a question of law and the trial court’s decision is based only on the
sufficiency of the petition.” Daniels, 2020-0175, pp. 5-6, 2020 WL 6156387 at *3
(quoting Deutsche Bank Nat’l Tr. Co., 2017-0173, pp. 4-5, 316 So.3d at 883; see
also Parker, 2020-0492, p. 7, 314 So.3d at 1134).
Custodial Negligence / Premises Liability
La. C.C. art. 2317 provides that we are responsible for damage caused by the
things in our custody. This concept is understood with a modification found in La.
C.C. art. 2317.1, concerning the condition of the premises, which states:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
See Davis v. Riverside Ct. Condo. Ass’n Phase II, Inc., 2014-0023, p. 6 (La. App. 4
Cir. 11/12/14), 154 So.3d 643, 647-48; Reaux v. Deep S. Equip. Co., 2002-1571,
pp. 6-7 (La. App. 4 Cir. 2/5/03), 840 So.2d 20, 24.
La. C.C. art. 2322 also “modifies liability under La. C.C. art. 2317 with
respect to the owner of a ruinous building or a defective component part of that
building.” Bercy v. 337 Brooklyn, LLC, 2020-0583, p. 6 (La. App. 4 Cir. 3/24/21),
315 So.3d 342, 346, writ denied, 2021-00564 (La. 6/22/21), 318 So.3d 698 (citing
Hooper v. Brown, 2015-0339, p. 6 (La. App. 4 Cir. 5/22/15), 171 So.3d 995, 1000).
La. C.C. art. 2322 provides, in part:
5 The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
Moreover, La. R.S. 9:2800 addresses a public entity’s liability for the
condition of things within its care and custody and provides, in relevant part:
A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
....
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
Under any of these theories of recovery, the plaintiff has to prove by a
preponderance of the evidence that: (1) the defendant owned or had custody of the
thing which caused the damage; (2) the thing was defective due to a condition
creating an unreasonable risk of harm; (3) the defendant had actual or constructive
notice of the condition yet failed to take corrective action within a reasonable
period of time; and (4) the defect was a cause of the plaintiff’s harm. See Ramirez
v. Lighthouse Prop. Ins. Corp., 2021-0184, p. 4 (La. App. 4 Cir. 12/15/21), 333
So.3d 1286, 1290 (outlining the requisite elements for liability under La. C.C. arts.
2317, 2317.1, 2322, and 2315(A)); Sewell v. Sewerage & Water Bd. of New
6 Orleans, 2019-0268, p. 6 (La. App. 4 Cir. 1/20/21), 313 So.3d 333, 339–40
(discussing custodial liability under La. C.C. arts. 2317, 2317.1 and La. R.S.
9:2800); see also Lomax v. Transdev Servs., Inc., 2020-0620, p.7, n. 9 (La. App. 4
Cir. 10/20/21), 331 So.3d 368, 373, writ denied, 2021-01737 (La. 2/8/22), 332
So.3d 668 (noting that the elements of proof for public entity liability under La.
R.S. 9:2800 are essentially the same as under La. C.C. arts. 2317 and 2317.1).
Accepting the allegations as true, Plaintiffs’ petition, as amended,
sufficiently states a cause of action for negligence and/or premises liability. The
petition identifies Defendant as the “owner, operator, [] manager” and/or the
custodian of the SUNO facility, where the accident took place. It further provides
that air conditioning in the SUNO building was “not operating and created an
unreasonably dangerous temperature.” The petition also alleges that SUNO staff
was aware and assured Plaintiffs the “air conditioning issue would be remedied”
and that they “were safe to enter the premises.” The petition also alleges Mrs.
George slipped and fell as a result of the extreme heat conditions created by the
inoperable air conditioning. The petition further claims that Defendant are liable to
Plaintiffs for: creating/permitting the existence of an unreasonable dangerous
condition on the premises; failing to correct the unreasonable dangerous condition
on the premises that Defendant knew or should have known existed; failing to
prevent a risk of harm that was reasonably foreseeable; failing to keep patrons safe
from unreasonably dangerous conditions on the premises; failing to adequately
inspect the premises to ascertain the dangers associated with the air conditioning
system; and failing to act with the requisite standard of care. Plaintiffs thus alleged
all the essential elements of a negligence/premises liability claim.
7 As stated above, “every reasonable interpretation must be accorded the
language used in the petition in favor of maintaining its sufficiency and affording
the plaintiff the opportunity of presenting evidence at trial.” McNamara, 2017-
0173, p. 4, 316 So.3d at 883. We find the allegations contained in the petition
assert a valid cause of action against Defendant. As such, it was error for the trial
court to grant the exception of no cause of action and dismiss Plaintiffs’ claims.
Defendant, however, contends that the trial court correctly maintained the
exception because no legal duty exists to protect against an open and obvious
condition. Defendant argues that Plaintiffs’ allegations that they were informed
that the air conditioning system was not working prior to entry constitutes a
judicial confession that the condition was open and obvious and thus no viable
cause of action exists. See La. C.C.P. art. 1853 (stating a “judicial confession is a
declaration made by a party in a judicial proceeding” and constitutes “full proof
against the party who made it”).
The threshold issue in any negligence action is whether the defendant owed
a duty to the plaintiff. Jones v. Stewart, 2016-0329, p. 9 (La. App. 4 Cir. 10/5/16),
203 So.3d 384, 390 (citing Ponceti v. First Lake Props., Inc., 2011–2711, p. 2 (La.
7/2/12), 93 So.3d 1251, 1252; Meany v. Meany, 94–0251, p. 6 (La. 7/5/94), 639
So.2d 229, 233). “Whether the defendant owed the plaintiff a duty is a legal
question for the court to decide.” Id. Absent a duty to the plaintiff, there can be no
actionable negligence and, hence, no liability. Id. (citing Bridgewater v. New
Orleans Reg'l Transit Auth., 2015–0922, p. 10 (La. App. 4 Cir. 3/9/16), 190 So.3d
408, 415).
Defendant is correct in that under Louisiana law, a defendant generally does
not have a duty to protect against an open and obvious hazard. Scarberry v.
8 Entergy Corp., 2013-0214, p. 10 (La. App. 4 Cir. 2/19/14), 136 So.3d 194, 204
(citing Hutchinson v. Knights of Columbus, Council No. 5747, 2003–1533, p. 9
(La. 2/20/04), 866 So.2d 228, 234). “In order for a hazard to be considered open
and obvious, the Louisiana Supreme Court has consistently stated that the hazard
should be one that is open and obvious to all, i.e., everyone who may potentially
encounter it.” Id. (citing Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1136 (La.
1988). “If the facts and circumstances of a particular case show that a dangerous
condition should be open and obvious to all who encounter it, then the condition
may not be unreasonably dangerous and the defendant may owe no duty to the
plaintiff.” Hooper, 2015-0339, p. 9, 171 So.3d at 1001 (citing Broussard v. State of
Louisiana, through the Off. of State Bldgs., 2012-1238, p. 11 (La. 4/5/13), 113
So.3d 175, 184). The open and obvious to all inquiry therefore “focuses on the
global knowledge of everyone who encounters the defective thing or dangerous
condition, not the victim’s actual or potentially ascertainable knowledge.” Id.
(quoting Broussard, 2012–1238, p. 18, 113 So.3d at 188).
However, whether or not the defective condition is open and obvious such
that Defendant cannot ultimately be held liable is not an appropriate question on an
exception of no cause of action. “The purpose of the exception of no cause of
action is not to determine whether the plaintiff will prevail at trial, but is to
ascertain if a cause of action exists.” Bruzeau v. Wells Fargo Bank, N.A., 2012-
0075, p. 6 (La. App. 4 Cir. 8/22/12), 99 So.3d 1010, 1014 (citing Bogues v.
Louisiana Energy Consultants, Inc., 46,434, p. 3 (La. App. 2 Cir. 8/10/11), 71
So.3d 1128, 1130). Thus, the likelihood of Plaintiffs’ success at a trial against
Defendant is not at issue on an exception of no cause of action. Rather, it is
whether on the face of the petition, in the light most favorable to plaintiff, the
9 petition states a valid claim. As stated earlier, Plaintiffs pled the requisite elements
to state a cause of action for negligence and premises liability and the trial court
erred in granting the exception of no cause of action.3
Moreover, with regard to Defendant’s argument that Plaintiffs admitted that
the dangerous condition was open and obvious, as noted above, Louisiana
jurisprudence holds that the open and obvious doctrine focuses on the “global
knowledge” of a defective or dangerous thing, not the victim’s actual or
constructive knowledge. Broussard, 2012–1238, p. 18, 113 So.3d at 188; Hooper,
2015-0339, p. 9, 171 So.3d at 1001. Thus, Plaintiffs’ alleged knowledge of the
inoperable air conditioning in the SUNO facility is not necessarily conclusive that
the defective condition was open and obvious to all who encountered it. See
Romain v. Brooks Restaurants, Inc., 2020-0243, p. 5 (La. App. 4 Cir. 11/18/20),
311 So.3d 428, 432 (acknowledging that the plaintiff’s awareness of an icy
sidewalk adjacent to the entrance of a restaurant was not dispositive of whether the
conditions were “open and obvious to everyone”).4
Furthermore, the Louisiana Supreme Court, in Broussard, suggests that open
and obvious is a component of the risk-utility analysis to determine whether a
defect is unreasonably dangerous and factual question for the trier of fact. As noted
by Plaintiffs, the Broussard Court stated that the question of whether a defect
3 See Doe v. Smith, 2005-0653, p. 5 (La. App. 4 Cir. 7/13/05), 913 So.2d 140, 143 (finding that
the plaintiffs’ petition was sufficient to state a cause of action for negligence against the medical center where the petition made allegations indicating that the medical center breached their duty to the plaintiffs, who were alleged to be their patients, by the negligent disposal of confidential medical records).
4 The Romain Court, however, ultimately affirmed the trial court’s ruling granting summary
judgment in favor of the defendants because there was no genuine issue of material fact as to whether the slippery, icy sidewalk was open and obvious to all who encountered it. Romain, 2020-0243, p. 7, 311 So.3d at 433.
10 presents an unreasonable risk of harm is a “mixed question of law and fact” to be
determined by the trier of fact. Broussard, 2012-1238, p. 9 (La. 4/5/13), 113 So.3d
at 183–84. The Court stated, in pertinent part:
We have described the question of whether a defect presents an unreasonable risk of harm as “a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts.” Reed v. Wal–Mart Stores, Inc., [19]97–1174, p. 4 (La.3/4/98), 708 So.2d 362, 364 (quoting Tillman v. Johnson, 612 So.2d 70 (La.1993) (per curiam)). As a mixed question of law and fact, it is the fact- finder's role—either the jury or the court in a bench trial—to determine whether a defect is unreasonably dangerous. Thus, whether a defect presents an unreasonable risk of harm is “a matter wed to the facts” and must be determined in light of facts and circumstances of each particular case. E.g., Dupree v. City of New Orleans, [19]99– 3651, pp. 13–14 (La.8/31/00), 765 So.2d 1002, 1012 (citation omitted); Reed, [19]97–1174 at p. 4, 708 So.2d at 364.
Broussard, 2012-1238, p. 9, 113 So. 3d at 183–84 (footnote omitted).
Louisiana courts have adopted a risk-utility balancing test to assist the trier
of fact to determine whether a condition may be considered unreasonably
dangerous. Broussard, 2012-1238, pp. 9-10, 113 So.3d at 184. This balancing test
examines: (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 or whether the activities were dangerous by
nature. Id. (emphasis added); see also Romain, 2020-0243, p. 4, 311 So.3d at 431–
32 (citing Bufkin v. Felipe’s Louisiana, LLC, 2014-0288, p. 6 (La. 10/15/14), 171
So.3d 851, 856). The open and obvious of a condition is therefore considered
under the second prong of the risk-utility inquiry. Broussard, 2012-1238, p. 10,
113 So.3d at 184.
In discussing the open and obvious doctrine, the Broussard Court further
found that the “analytic framework for evaluating an unreasonable risk of harm is
11 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.” Broussard,
2012–1238, pp. 11–12, 113 So.3d at 185 (emphasis added); see also Hooper, 2015-
0339, pp. 9-10, 171 So.3d at 1001. It is axiomatic that the issue of whether a duty
is owed is a question of law, and that the issue of whether a defendant has breached
a duty owed is a question of fact. Broussard, 2012–1238, p. 12, 113 So.3d at 185.
The Broussard Court also stated:
The judge decides the former, and the fact-finder—judge or jury— decides the latter. “In the usual case where the duty owed depends upon the circumstances of the particular case, analysis of the defendant's conduct should be done in terms of ‘no liability’ or ‘no breach of duty.’” Pitre, [19]95–1466 at p. 22, 673 So.2d at 596 (Lemmon, J., concurring). Because the determination of whether a defect is unreasonably dangerous necessarily involves a myriad of factual considerations, varying from case to case, Reed, [19]97–1174 at p. 4, 708 So.2d at 364, 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.
Broussard, 2012-1238, p. 12, 113 So.3d at 185 (footnote omitted). The fact-finder,
employing the risk-utility balancing test, therefore determines “which risks are
unreasonable and whether those risks pose an open and obvious hazard.” Id.
Thus, while whether a duty is owed is question of law, because Broussard
provides that the open and obviousness of a condition is a factor in the risk-utility
inquiry, which is more appropriately classified as a determination of whether a
defendant has breached a duty, rather than a duty owed, whether or not the high
temperature in the SUNO building was open and obvious to everyone is arguably
an issue for the trier of fact to decide.5
5 Moreover, this Court has been unable to find cases that disposed of the open and obviousness
of a condition on an exception of no cause of action. The cases which address the open and obvious doctrine were either decided after a trial on the merits or on a motion for summary
12 In sum, the petition alleges facts sufficient to demonstrate that the law
affords Plaintiffs a remedy. As discussed above, an exception of no cause of action
should be granted only when it appears beyond doubt that the plaintiff can prove
no set of facts in support of any claim which would entitle him to relief. See An
Erny Girl, L.L.C., 2018-0360, p. 6, 257 So.3d at 21. In their petition, Plaintiffs
identify Defendant as the owner of the building; claims that SUNO staff advised
Plaintiff that the air conditioning issue would be resolved and that they were safe
to enter the facility; enumerates the ways Defendant failed to exercise reasonable
care; and claims that Defendant’s negligence was the cause of Mrs. George’s
accident and Plaintiffs’ injuries.
While generally no duty is owed if the defect is open and obvious, the
standard for granting an exception of no cause of action is not the likelihood that
the plaintiff will prevail at trial. Doe, 2005-0653, p. 2, 913 So.2d at 141. Rather, it
is whether, accepting as true all its allegations, and with every doubt resolved in
the plaintiff’s behalf, the petition states any valid cause of action for relief. Id. The
petition, as amended, is sufficient to allege a cause of action for negligence and/or
judgment. See Robertson v. Kearney Cos, Inc., 2020-0605, p. 9 (La. App. 4 Cir. 3/25/21), 315 So.3d 931, 938 (affirming judgment granting a motion for summary judgment and finding that the hole in asphalt was open and obvious); Bercy, 2020-0583, p. 8, 315 So.3d at 348 (reversing the trial court’s grant of summary judgment where a material issue of fact existed as to whether the defective condition of stairs was open and obvious); Jones, 2016-0329, p. 26, 203 So.3d at 400 (reversing the granting of the motion for summary judgment and finding that the defendants failed to establish that the unfinished, unlit, wet attic was open and obvious); Rodriguez, 2014- 1725, p. 1, 152 So.3d at 872 (reversing the trial court and granting a motion for summary judgment, finding the shopping cart that the patron tripped over was open and obvious); Broussard, 2012-1238, p. 26 (La. 4/5/13), 113 So.3d at 194 (reviewing judgment after jury trial and affirming the jury’s finding that an offset between the elevator and floor was not open and obvious to all); Jimenez v. Omni Royal Orleans Hotel, 2010-1647, p. 2 (La. App. 4 Cir. 5/18/11), 66 So.3d 528, 530 (finding the trial judge was not clearly wrong in concluding that a manhole was open and obvious to all and determining the hotel was not at a fault); Woods v. Winn-Dixie Montgomery, L.L.C., 2017-707, pp. 7-8 (La. App. 5 Cir. 6/27/18), 251 So.3d 675, 682 (addressing the open and obvious doctrine after trial on the merits in the context of jury instructions).
13 premises liability against Defendants. The trial court erred in granting the
exception of no cause of action and dismissing the claims against Defendant with
prejudice.
CONCLUSION
For the foregoing reasons, we reverse the trial court’s judgment granting
Defendant’s exception of no cause of action and dismissing Plaintiffs’ claims
against it with prejudice. We remand the matter to the trial court for further