Rose George and Melvin George v. Abc Insurance Company and Southern University of New Orleans

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.

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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

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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:

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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

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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.

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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

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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.

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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).

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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

proceedings.

REVERSED AND REMANDED

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