Sabrina Robertson and Walter Robertson v. the Kearney Companies, Inc.

SABRINA ROBERTSON AND * NO. 2020-CA-0605
WALTER ROBERTSON
* COURT OF APPEAL
VERSUS
* FOURTH CIRCUIT
THE KEARNEY COMPANIES,
INC. * STATE OF LOUISIANA

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JCL LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

I respectfully dissent. The record presented by the defendant, The Kearney

Companies, Inc. (“Defendant”), in support of its motion for summary judgment

presents a genuine issue of material fact. The hole depicted in the photographs

submitted by Defendant is in asphalt. However, in her deposition, Mrs. Robertson

testified repeatedly that she tripped in a hole on the pathway, and Mr. Robertson

testified that the pathway in which his wife tripped was made of concrete.

Therefore, a genuine issue of a material fact exists as to the hole in which Mrs.

Robertson tripped.

The majority finds that “identifying the exact hole is not material or essential

to the Robertsons’ case.”1 I disagree. The measurements made by Mr. Evans on

1
The majority makes the inference that all holes made by container pads throughout Defendant’s
premises are similar in dimension, such that, even if the hole depicted in the photographs
submitted by Defendant is not the “exact hole” in which Mrs. Robertson tripped, the “exact hole”
would have the same dimensions as the hole depicted in the photographs. Where the trial court is
presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained
in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in
the light most favorable to the party opposing the motion. Mashburn v. Collin, 355 So.2d 879,
890 (La. 1977); Hines v. Garrett, 04-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765. “[E]ven
where the facts are not disputed, ‘genuine issues’ in a La. C.C.P. art. 966 sense may exist as to
what inferences might be drawn from those facts in those instances where reasonable fact finders
might differ as to the meaning of such inferences. Where such inferences are ‘material’ in a La.
C.C.P. art. 966 sense, then summary judgment is not appropriate.” Bell v. Dunn, 04-2117, p. 3
(La. App. 4 Cir. 12/21/05), 924 So.2d 224, 228. I do not believe it is reasonable to infer that all
“pad holes” on Defendant’s property are the same nature, size and depth. The weight of a
container, including its contents, and the length of time the container is stationed in a particular
location would primarily govern the size and depth of the depression made by the container pad.
Depressions would vary based on the ground (concrete or asphalt), the weight of the container
and the length of time the container is stationary.

behalf of Defendant were of a hole in the asphalt Defendant claims is the situs of

the accident. There is no evidence in the record as to the dimensions of the hole in

the concrete pathway. This genuinely disputed fact is material as to whether the

condition posed by the property under Defendant’s control was “unreasonably

dangerous” but “open, obvious and apparent.”

For an alleged hazard to be obvious and apparent, our Supreme Court has

consistently stated that the hazard should be one that is open and obvious to

everyone who may potentially encounter it. See Bufkin v. Felipe’s Louisiana, LLC,

14-0288, p. 7 (La. 10/15/14), 171 So.3d 851, 856; Broussard v. State of Louisiana

ex rel. Office of State Buildings, 12-1238, p. 23 (La. 4/5/13), 113 So.3d 175, 192;

Pitre v. Louisiana Tech University, 95-1466, p. 11 (La. 5/10/96), 673 So.2d 585,

591. The open and obvious inquiry thus focuses on the global knowledge of

everyone who encounters the defective thing or dangerous condition, not the

victim’s actual or potentially ascertainable knowledge. Broussard, 12-1238, p. 18,

113 So.3d at 188.

I disagree with the majority and find that the situs of an accident and the

nature of the hazardous condition are material in all open and obvious cases,

especially the situs of tripping accidents on concrete pathways.2 An open and

obvious analysis is fact sensitive3 and requires a legal analysis as to whether the

situs of the accident is “unreasonably dangerous” but “open, obvious and

2
The present case is clearly distinguishable from cases where a condition was blatantly open and
obvious to all, such as a concrete barrier on a vehicle ramp in Ludlow v. Crescent City
Connection Marine Division, 15-1808 (La. 11/16/15), a large construction dumpster the size of a
pickup truck placed on a sidewalk in Bufkin, supra, or shopping carts in a parking lot in
Rodriguez v. Dolgencorp, L.L.C., 14-1725 (La. 11/14/14), 152 So.3d 871. A hole in a pathway
may or may not be open and obvious to all depending on the length, width, and depth of the hole
and its location, amongst other factors.
3
See e.g., McClelland v. City of Shreveport, 47,570 (La. App. 2 Cir. 1/16/13), 108 So.3d 810
(crack in sidewalk classified as a “3” on the severity/repair priority scale); Minix v. Pilot Travel
Centers, LLC, 2018-1197 (La. App. 1 Cir. 5/31/19), 277 So.3d 810, writ denied, 2019-1074 (La.
10/8/19), 280 So.3d 149 (pothole in area of a truck stop adjacent to the fueling island where
truck driver had parked his rig); Lewis v. B-3 Prop., 2020-0125 (La. App. 4 Cir. 8/7/20), 2020
WL 4561818 (tenant slipped and fell in a puddle of water and algae that had formed on the
sidewalk from a leaking air conditioning unit).

apparent.” Bufkin, 14-0288, p. 6, 171 So.3d at 856. The Bufkins Court analyzed the

following risk-utility balancing test to determine whether the premises created an

unreasonably dangerous condition: (1) the utility of the complained-of condition;

(2) the likelihood and magnitude of 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 (citations omitted).

In the case sub judice, various issues cannot be resolved without sufficient

evidence as to the situs of the accident and characteristics of the hazardous

condition, including the following: (a) whether a reasonable person exercising

ordinary care would recognize the hole in the concrete pathway as a tripping

hazard; (b) whether the condition of the premises where the accident occurred was

such that a reasonable person exercising ordinary care would not know there was a

hole or depression in the pathway; (c) whether the hazard is open and obvious to

all persons using the pathway such that there exists a duty to observe the hazard

and there is no excuse for not seeing the hazard; and (d) whether the nature of the

concrete pathway and its location to the other holes in the asphalt work yard

distorts the ability of a reasonable person exercising ordinary care to recognize the

dangerous condition as being a tripping hazard.

Courts’ open and obvious objective analysis in a summary judgment

proceeding requires that the condition of the premises of the situs of the accident

be properly identified and described, and undisputed. A defect on a concrete

pathway and a defect on the asphalt work yard have different characteristics and

risk-utility considerations. These material issues of fact need to be resolved. If the

situs of the accident and description of the defect are undisputed, then a court can

proceed with its open and obvious analysis in a summary judgment proceeding. If

these two factual issues are in dispute, then a trier of fact must resolve these factual

issues in a trial on the merits. The record is not developed as to precisely the situs

of Mrs. Robertson fall, the description of the hazardous condition, and the

characteristics of the premises. Without undisputed evidence, the Court is unable

to perform the risk-utility balancing test to determine whether the premises as a

whole created an unreasonably dangerous condition that was not open and obvious

to a reasonable person exercising ordinary care. The mover in a summary judgment

proceeding must provide sufficient evidence to identify the actual dangerous

condition that needs to be analyzed by the courts. Defendant failed to meet its

evidentiary burden, and the summary judgment should have been denied.

Accordingly, I would reverse the judgment of the district court granting

Defendant’s motion for summary judgment and remand this matter to the district

court for further proceedings.