Sherrell Johnson v. Evanston Insurance Company, Denyce Moss and John Moss

SHERRELL JOHNSON * NO. 2022-CA-0804

VERSUS *
COURT OF APPEAL
EVANSTON INSURANCE *
COMPANY, DENYCE MOSS FOURTH CIRCUIT
AND JOHN MOSS *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-02484, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge
Sandra Cabrina Jenkins)

Jeffrey T. Greenberg
JEFFREY T. GREENBERG, APLC
10001 Lake Forest Blvd., Suite 202
New Orleans, LA 70127

J. Michael Daly, Jr.
WALKER DALY, LLP
3939 North Causeway Boulevard, Suite 200
Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLANT

Phoebe A. Hathorn
Patrick J. McShane
Danica B. Denny
Kathleen P. Rice
FRILOT LLC
1100 Poydras Street
3700 Energy Centre
New Orleans, LA 70163-3600

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED
June 14, 2023

RML

RLB This is a premises liability suit arising out of an alleged fall down a

SCJ staircase in a residential building. Defendants—the building’s owners, Denyce

and John Moss (collectively “the Mosses”), and their insurer, Evanston Insurance

Company—filed a summary judgment motion. From the trial court’s September 1,

2022 judgment granting the summary judgment motion, plaintiff—Sherrell

Johnson—appeals. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, the Mosses purchased a four-unit, residential building located on

Banks Street in New Orleans, Louisiana. They occupied one of the units as their

residence and rented the other three units. In February 2019, Ms. Johnson’s son,

Terrance Johnson, inquired about renting one of the Mosses’ available rental

units—the unit with a municipal address of 4328 Banks Street (the “Rental Unit”).

The Rental Unit was located on the second floor of the building.

Inside the Rental Unit was a door that opened into a staircase. The staircase

led to a laundry room that was located on the first floor of the building. The

1

staircase door had a deadbolt lock, which opened with a key. A photograph, taken

by Ms. Johnson’s expert after the alleged accident, shows that there was no landing

at the top of the staircase:1

When Ms. Moss took Mr. Johnson on a tour of the Rental Unit, she showed him

the staircase leading to the first floor laundry room. Following the tour, Mr.

Johnson signed a Rental-Credit Application.

In March 2019, Ms. Moss signed a Residential Lease with Mr. Johnson for

the Rental Unit (the “Lease”). After signing the Lease, Ms. Moss scheduled a

meeting with Mr. Johnson for three reasons: (i) to perform a final walk through of

the Rental Unit; (ii) to receive payment from Mr. Johnson of the first month’s rent;

and (iii) to give Mr. Johnson all the keys to the Rental Unit.

On the morning of the scheduled meeting, Ms. Moss arrived at the Rental

Unit before Mr. Johnson. When she arrived, she unlocked the front door of the

Rental Unit and put the key into the deadbolt lock on the staircase door. According

to Ms. Moss, she put the key into the staircase door because she planned to show

1 The photograph is one of several taken by Ms. Johnson’s expert; these photographs were

submitted in opposition to the summary judgment motion.

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the staircase to Mr. Johnson again that morning.2 Because Mr. Johnson still had not

arrived, Ms. Moss returned to her unit, which was in the same building.

Meanwhile, Mr. Johnson and his mother, Ms. Johnson, arrived and let

themselves inside the Rental Unit. After entering the Rental Unit, they walked

through the first two rooms—the living room and the bedroom—and entered the

kitchen. At that point, Mr. Johnson turned around to meet with Ms. Moss, who had

returned. According to Ms. Moss, she and Mr. Johnson met on the porch of the

building.

While Mr. Johnson and Ms. Moss were meeting, Ms. Johnson took a self-

directed tour of the Rental Unit. Ms. Johnson described her actions as “checking it

out.” In so doing, Ms. Johnson encountered the staircase door with the key in the

deadbolt. She opened the door. When she did so, she saw darkness. Without asking

anyone where the light switch was or for permission to enter, Ms. Johnson took a

step into the darkness and allegedly fell down the staircase. Ms. Moss and Mr.

Johnson heard Ms. Johnson’s call for help. They found her on the landing at the

bottom of the staircase.3 This suit followed.

In her petition, Ms. Johnson averred that she was lawfully on the premises of

the Rental Unit, that she opened an unmarked door, and that she fell down the

2 According to Ms. Johnson, she could not recall if the door was locked. In contrast, Ms. Moss

testified that she left the key in the door that morning, but she did not unlock it.
3 According to Ms. Johnson, Ms. Moss saw that she was present before she opened the staircase

door. In contrast, Ms. Moss testified that she first saw Ms. Johnson after the alleged accident
when she and Mr. Johnson found Ms. Johnson at the bottom of the staircase. Regardless, it is
undisputed that Ms. Moss and Ms. Johnson never engaged in a conversation before the alleged
accident.

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staircase that was directly behind the door. She further averred that the staircase

had no hand railings and was dark and that that there was no warning that a

staircase was behind the door. She averred that this condition constituted a defect

in the premises, which caused her damages, and that the Mosses were negligent in

connection with her fall down the staircase in multiple respects.

After answering the suit and engaging in discovery, Defendants filed a

summary judgment motion. In support, they asserted three separate grounds:

• Ms. Johnson was trespassing on the Mosses’ property at the time of the
alleged accident, and the Mosses only owed Ms. Johnson a duty to
refrain from willful or wanton injury—conduct which was not alleged
by Ms. Johnson;

• The Mosses owed no duty of care to protect Ms. Johnson from open
and obvious conditions like a dark stairway behind a closed, locked
door; and

• The Mosses could not be held liable for Ms. Johnson’s alleged fall,
because Mr. Johnson assumed responsibility for the apartment’s
condition pursuant to the terms of the Lease, as permitted by La. R.S.
9:3221.4

In support of its summary judgment motion, Defendants submitted the

following: (i) the petition; (ii) excerpts from the deposition testimony of Ms. Moss,

Mr. Moss, and Ms. Johnson; and (iii) Ms. Moss’s affidavit, which included as

exhibits copies of the Rental/Credit Application, the Lease, and a photograph of

the Staircase. In her affidavit, Ms. Moss attested to the following:

4 La. R.S. 9:3221 provides as follows:

Notwithstanding the provisions of Louisiana Civil Code Article 2699, the
owner of premises leased under a contract whereby the lessee assumes
responsibility for their condition is not liable for injury caused by any defect therein
to the lessee or anyone on the premises who derives his right to be thereon from the
lessee, unless the owner knew or should have known of the defect or had received
notice thereof and failed to remedy it within a reasonable time.

4

• According to Clause 5 of the Residential Lease, Terrance Johnson was
required to pay the prorated first month's rent prior to receiving the keys
for the [Rental Unit].

• Clause 11 of the Residential Lease states, in part, as follows: Tenant
will: . . . (2) immediately notify Landlord of any defects or dangerous
conditions in and about the premises of which Tenant becomes aware .
. . Tenant has examined the premises, including appliances, fixtures,
carpets, drapes, and paint, and has found them to be in good, safe, and
clean condition and repair, except as noted in the Landlord Tenant
Checklist.

• Inside the [Rental Unit], there is a door with a lock that opens to a
stairwell which leads to a laundry room on the first floor of the building.
The door to the stairwell opens to the right, and immediately to the left
is a light switch which turns on a light in the stairwell.

In opposition to the summary judgment, Ms. Johnson submitted excerpts

from her deposition testimony and the report of her expert—Kevin Vanderbrook, a

professional civil engineer who she retained to examine the staircase. Ms. Johnson

also attached photographs taken by her expert and her expert’s affidavit. In his

report, Mr. Vanderbrook opined that the staircase violated many building codes

and presented safety issues; he observed as follows:

The dimensions of the treads and risers, lack of handrails, lack of
a landing and lack of proper headroom clearance at the bottom of the
stairs are all provisions which would render these stairs non compliant
with many building codes. The original 1927 building code is violated
by the tread and riser heights and lack of handrails. Although . . . it
would be difficult to add a landing at the top of the stair, a warning to
indicate to users of the stairs that no landing was present or addition of
handrails would have been relatively simple additions to the stairwell
to improve the safety.

Following a hearing, the trial court granted Defendants’ summary judgment

motion. Complying with La. C.C.P. art. 966(C)(4)’s requirement that “[i]n all

cases, the court shall state on the record or in writing the reasons for granting or

denying the motion,” the trial court stated in its oral reasons for judgment that it

was unreasonable for Ms. Johnson to go down the steps without attempting to find

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the light and that the darkness Ms. Johnson confronted when she opened the

staircase door was an open and obvious condition. This appeal followed.

DISCUSSION

Although Ms. Johnson assigns multiple errors, the dispositive issue in this

case is whether the trial court erred in granting Defendants’ summary judgment

motion.5

Summary Judgment Principles and Standard of Review

An appellate court reviews a trial court’s judgment on a summary judgment

motion de novo. See Planchard v. New Hotel Monteleone, LLC, 21-0347, p. 2 (La.

12/10/21), 332 So.3d 623, 625. In so doing, an appellate court applies the same

criteria that govern the trial court’s decision as to whether a summary judgment

motion should be granted—“whether there is any genuine issue of material fact,

and whether the movant is entitled to judgment as a matter of law.” Planchard, 21-

00347, pp. 2-3, 332 So.3d at 625.

The statutory provision that governs a summary judgment motion states that

such motion “shall be granted if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the

mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). The

5 Ms. Johnson assigns as error the following:

1. The Trial Court erred in granting defendant’s Summary Judgement [sic] dismissing
plaintiff’s claims.

2. The Trial Court erred in determining, without sufficient evidence, that the defective
stairs, located behind a closed door, in a dark stairwell, without any warning,
constituted an open and obvious condition.

3. The Trial Court erred in granting defendants’ Summary Judgment when the
plaintiff had retained an expert who issued a report, shared with the defendant,
which found a defective/unreasonably dangerous condition.

6

burden of proof on a summary judgment motion is governed by La. C.C.P.

art. 966(D)(1), which provides for a shifting burden of proof.6

The summary judgment procedure is favored and “designed to secure the

just, speedy, and inexpensive determination of every action.” La. C.C.P.

art. 966(A)(2). The summary judgment procedure is designed to pierce the

pleadings and to assess the evidence to determine if any genuine issue of material

fact exists warranting a trial. See Cutrone v. English Turn Prop. Owners Ass’n,

Inc., 19-0896, p. 7 (La. App. 4 Cir. 3/4/20), 293 So.3d 1209, 1214. A genuine issue

is one as to which reasonable persons could disagree; if reasonable persons could

reach only one conclusion, there is no need for trial on the issue, and the granting

of summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc.,

93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. “A fact is ‘material’ when its

existence or nonexistence may be essential to plaintiff's cause of action under the

applicable theory of recovery.” Id. As this court has observed, “[t]he determination

of whether a fact is material turns on the applicable substantive law.” Roadrunner

Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265,

1270.

6 La. C.C.P. art. 966(D)(1) provides as follows:

The burden of proof rests with the mover. Nevertheless, if the mover will
not bear the burden of proof at trial on the issue that is before the court on the
motion for summary judgment, the mover’s burden on the motion does not require
him to negate all essential elements of the adverse party’s claim, action, or defense,
but rather to point out to the court the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense. The burden is on
the adverse party to produce factual support sufficient to establish the existence of
a genuine issue of material fact or that the mover is not entitled to judgment as a
matter of law.

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Negligence and Premises Liability Principles

Ms. Johnson’s claims are tort claims—negligence under La. C.C. art. 2315,

and premises liability under La. C.C. art. 2317.1.7 Liability for both type of tort

claims is determined by applying the duty/risk analysis. Farrell v. Circle K Stores,

Inc., 22-00849, p. 5 (La. 3/17/23), ___ So.3d ___, ____, 2023 WL 2550503, *3.

Under the duty/risk analysis, a plaintiff must prove all of the following five

elements:

1. The defendant had a duty to conform his conduct to a specific standard
(the duty element);

2. The defendant’s conduct failed to conform to the appropriate standard
(the breach element);

3. The defendant’s substandard conduct was a cause-in-fact of the
plaintiff’s injuries (the cause-in-fact element);

4. The defendant’s substandard conduct was a legal cause of the plaintiff’s
injuries (the scope of duty element); and

5. Proof of actual damages (the damages element).

Id.8

The first element—the duty element—presents the legal question of whether

the plaintiff has any law—statutory, jurisprudential, or arising from general

7 La. C.C. article 2315 provides in pertinent part: “Every act whatever of man that causes

damage to another obliges him by whose fault it happened to repair it.” La. C.C. article 2317.1
provides, in part:

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. Nothing in this Article shall preclude the court from the application
of the doctrine of res ipsa loquitur in an appropriate case.
8 Additionally, a claim under La. C.C. art. 2317.1 requires proof that the defendant had actual or

constructive knowledge of the defect.

8

principles of fault—to support the claim that the defendant owed him a duty.

Farrell, 22-00849, p. 6, ___ So.3d at ____, 2023 WL 2550503, *4. The second

element—the breach element—presents either a factual question or a mixed

question of law and fact. Farrell, 22-00849, pp. 6-7, ___ So.3d at ___, 2023 WL

2550503, *4. To decide the breach element, Louisiana courts apply a risk/utility

balancing test, which has been synthesized to a consideration of four pertinent

factors:

i. The utility of the complained-of condition;

ii. The likelihood and magnitude of harm, including the obviousness and
apparentness of the condition;

iii. The cost of preventing the harm; and,

iv. The nature of the plaintiff's activities in terms of social utility or whether the
activities were dangerous by nature.

Id.

Here, the trial court, in granting Defendants’ summary judgment motion, did

so based on the pre-Farrell9 jurisprudence, which recognized that “no legal duty is

owed because the condition encountered is obvious and apparent to all and not

unreasonably dangerous.” Bufkin v. Felipe's Louisiana, LLC, 14-0288, p. 12, n. 3

(La. 10/15/14), 171 So.3d 851, 859. Stated otherwise, the trial court, agreeing with

Defendants, found that the Mosses had no duty to protect Ms. Johnson from an

open and obvious condition—defined by Defendants as a dark stairway behind a

9 In Farrell, the Supreme Court granted writs “to clarify once and for all, a confusion-laden area

of negligence law: the so-called ‘open and obvious’ defense in the context of a motion for
summary judgment.” Farrell, 22-00849, p. 10 (La. 3/17/23), ___So.3d. ___, ___, 2023 WL
2550503, *9 (Weimer, C.J., concurring).

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closed, locked door. The Louisiana Supreme Court, however, recently held in

Farrell that this analysis of the open and obvious defense is inaccurate.10

In Farrell, the Supreme Court clarified that, despite its prior statements to

the contrary, “it is inaccurate to profess that a defendant generally does not have a

duty to protect against an open an obvious condition” and that “[t]here is, with

limited exception, the duty to exercise reasonable care and to keep that which is

within our custody free from an unreasonable risk of harm.” Farrell, 22-00849,

p. 13, ___ So.3d at ___, 2023 WL 2550503, *8. Nonetheless, the Supreme Court,

in Farrell, observed that its clarification did not mean that summary judgment

would never have been been appropriate on the issue of an unreasonably dangerous

condition. Rather, “the relegation of the ‘open and obvious’ defense to its proper

role in assessing the likelihood of the harm element of the risk/utility analysis will

not preclude summary judgment in the appropriate case.” Farrell, 22-00849, p. 16,

___So.3d. at ___, 2023 WL 2550503, *10 (Weimer, C.J., concurring). An

appropriate case, according to the Supreme Court, is defined as follows:

Summary judgment on the issue of an unreasonably dangerous
condition is warranted upon a finding that no reasonable juror could have
found that the defendant was in breach of the duty. If the defendant meets that
burden of proof, and the plaintiff fails to establish that he or she will be able
to establish the breach element at trial, summary judgment in favor of the
defendant is mandated.

Farrell, 22-00849, p. 16, ___So.3d. at ___, 2023 WL 2550503, *9. To determine

whether this is an appropriate case, the four-part risk/utility balancing test must be

applied.

Part One—Utility of the Complained of Condition

10 The Supreme Court’s decision in Farrell was issued in March 2023—after the trial court’s

judgment in this case was rendered and the parties’ briefs were filed in this case.

10

Ms. Johnson contends that there is no utility in having an inherently

dangerous staircase without a proper landing, handrails, or accessible light switch

and located behind a closed, unmarked door. But the jurisprudence has held that if

the complained-of-condition was “‘meant to be there,’ it often will have social

utility, and in the balancing test, weigh against a finding that the premises was

unsafe.” Farrell, 22-00849, p. 7, ___So.3d. at ___, 2023 WL 2550503, *4. Such is

the case here. The staircase was intentionally placed in the building to allow the

tenant to use the first floor laundry room. The complained-of-condition has some

social utility.

Part Two—Likelihood and Magnitude of the Harm, including the Obviousness and
Apparentness of the Condition

Ms. Johnson contends that the likelihood and magnitude of harm from the

condition is great, especially when, as here, the staircase is not readily obvious or

apparent to those who open the door inward toward the staircase. The trial court,

accepting Defendants’ position that there was an open and obvious condition,

focused on two factors—the darkness as the open and obvious condition; and Ms.

Johnson’s unreasonable conduct in stepping into the dark without looking for the

light switch. We separately address each.

The Darkness

Contrary to the trial court’s conclusion, we find the complained-of-condition

is not simply the darkness. Rather, it is the synergistic relationship of multiple

separate circumstances that Ms. Johnson confronted—an unmarked, unsecured

staircase door with no light switch on the exterior of the door; a staircase door that

swung inward; and a staircase with neither a top landing nor railings. There was no

notice on the door indicating a staircase was behind it. Although the Mosses felt

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they had secured the staircase by putting a deadbolt lock on the staircase door, it is

undisputed the key was on the door when Ms. Johnson encountered it. Whether the

door was locked at the time Ms. Johnson encountered it is unclear. Ms. Moss

testified that she did not unlock the door. Ms. Johnson testified that she could not

recall if she unlocked or simply opened the door. Regardless, the key was on the

door, resulting in the staircase door being unsecured.

This court has recognized that when, as here, the complained-of-condition

consists of a cluster of contemporaneously existing circumstances, the complained-

of-condition may neither be open and obvious nor unreasonably dangerous. A trio

of this court’s cases demonstrate this scenario: 11

• Warren v. Kenny, 10-1580, p. 10 (La. App. 4 Cir. 4/27/11), 64 So.3d 841,
849 (observing that granting defendant’s summary motion was error given
that “the risk of climbing a ladder up the side of a building to a second floor
balcony while carrying a basket of laundry might reasonably be deemed an
open and obvious danger. . . [but] the impermanent manner in which the
balcony railing was secured in this case was not an open and obvious
danger”);12

11 Prior jurisprudence remains relevant in analyzing this issue. The Supreme Court, in Farrell,

acknowledged that its decision was meant only to clarify the analytical structure for considering
the open and obvious defense and that it was not meant to change the basic premise of open and
obvious. Farrell, 22-00849, p. 13, ___So.3d. at ___, 2023 WL 2550503, *8. The Supreme Court
observed that the basic open and obvious premise has always been as follows:

For a hazard to be considered open and obvious, it must be one that is open
and obvious to all who may encounter it. The open and obvious concept asks
whether the complained of condition would be apparent to any reasonable person
who might encounter it. If so, that reasonable person would avoid it, and the factor
will weigh in favor of finding the condition not unreasonably dangerous.

Id.
12 In Warren, supra, the plaintiff—a defendant’s tenant—fell while descending a ladder carrying

a laundry basket. The plaintiff had gone up the ladder to the second floor balcony, which was the
location of the community laundry facility for the defendant’s apartment. The sole access to the
laundry facility was by climbing a ladder. The plaintiff’s fall occurred when the balcony railing
came loose. The trial court granted the defendant’s summary judgment motion, which was based
on open and obvious defense—that dangers of using the ladder were open and obvious. This
court reversed.

12

• Jones v. Stewart, 16-0329 (La. App. 4 Cir. 10/05/16), 203 So.3d 384
(observing that granting defendant’s summary motion was error given that
condition in homeowner’s attic was not necessarily an open and obvious risk
considering other conditions existing contemporaneously—homeowner’s
attic was unfinished, unlit, and wet); and

• Lomax v. Transdev Servs., Inc., 20-0620 (La. App. 4 Cir. 10/20/21), 331
So.3d 368, writ denied, 21-01737 (La. 2/8/22), 332 So.3d 668 (observing
that granting summary judgment was error given the overall circumstances
regarding the mechanic’s pit—a three to four foot gap created by the
presence of the bus parked partially over the uncovered mechanic’s pit
coupled with the proximity of the mechanic’s pit to the walking area).

Here, Ms. Johnson was unaware of the existence of a staircase behind the

unmarked door until she opened the door away from her, took her first step, and

fell. A commentator has observed that “[a] doorway opening directly (without a

platform at the top) onto dark stairs” is an example of a “trap” situation. 11 Am.

Jur. Trials 265 (Originally published in 1966); see also Weiland v. King, 281 So.2d

688, 691 (La. 1973) (observing “the absence of stairway lighting and the absence

of handrails at the second-floor landing combined to create a dangerous trap for

one descending the stairs”). This situation presents a hidden and concealed danger.

“‘Hidden and concealed dangers are the antithesis of open and obvious dangers.’”

Stewart, 16-0329, p. 26, 203 So.3d at 399. (quoting Aaron v. Palatka Mall, L.L.C.,

908 So.2d 574, 579 (Fla. Dist. Ct. App. 2005)).

Again, the complained-of-condition Ms. Johnson confronted included a

cluster of contemporaneously existing circumstances; it was not limited to the

darkness. While the darkness in the staircase may have been obvious, because of

the darkness, the presence of the staircase and the lack of a landing or stair rails

was not obvious. See Stewart, 16-0329, p. 26, 203 So.3d at 400 (observing that

“[w]hile the darkness of the attic may have been obvious, because of the darkness,

the wetness of the joists was not obvious”). There is, at least, a genuine issue of

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material fact as to whether the complained-of-condition here was open and obvious

to all comers.

The Step-into-the-Dark

The second factor the trial court cited was Ms. Johnson’s unreasonable

conduct in stepping into the dark without looking for the light switch. The trial

court’s reliance on this factor is misplaced, factually and legally. Factually,

although the trial court suggested that Ms. Johnson did not attempt to look for the

light switch before stepping into the dark, her testimony was otherwise.13 Legally,

the trial court’s reliance on Ms. Johnson’s stepping in the dark invoked—albeit not

by name—a no-longer viable, step-in-the-dark rule. This rule is a product of the

former contributory negligence regime; under the current comparative fault

regime, this rule is inapposite.14 Moreover, Ms. Johnson’s comparative fault is not

13 In her deposition, Ms. Johnson testified that she looked for a light switch, but she failed to find

one:

Q. Okay. Okay. So where did you look for a light switch?

A. There was none on the outside of the door. When I opened the door, reached in
the inside of the wall to feel for a light switch. I didn’t feel for one, but upon
stepping and reaching, I went down.

Continuing, Ms. Johnson testified that her first step was her “fatal step.”
14 The step-in-the-dark rule was as follows:

A person who comes into an unfamiliar situation, where a condition of
darkness renders the use of his eye-sight ineffective to define his surroundings, is
not justified, in the absence of any special stress of circumstances, in proceeding
further, without first finding out where he is going and what may be the obstructions
to his safe progress. Violation of that rule is contributory negligence as matter of
law.

Kessler v. Southmark Corp., 25,941, p. 3 (La. App. 2 Cir. 9/21/94), 643 So.2d 345, 348 (internal
citation and quotation omitted). The step-in-the-dark rule was an affirmative defense under the
previous contributory negligence regime. But, it should not “increase the plaintiff’s burden under
the current comparative fault regime.” Kessler, 25,941, p. 5 (La. App. 2 Cir. 9/21/94), 643 So.2d
345, 349; see also Spahr v. Ferber Resorts, LLC, 419 Fed.Appx. 796, 803 (10th Cir.2011)
(observing that “[t]ellingly, there are no post-comparative fault cases applying the [step-in-the-
dark] rule—and indeed there are none, because the rule was abandoned in 1973 along with the
rest of the old contributory negligence regime”).

14

at issue here. See Farrell, 22-00849, p. 14, ___ So.3d ___, ____, 2023 WL

2550503, *8 (observing that “[a]lthough it would be relevant in a trial on the

merits, for purposes of potential comparative fault, [the plaintiff’s] awareness is

irrelevant to Defendants’ entitlement to summary judgment”).

Accordingly, we find the likelihood and magnitude of harm created by the

complained-of-condition was significant and, in the balancing test, weighs in favor

of a finding that the premises was unsafe.

Part Three—Cost of Preventing the Harm

Ms. Johnson contends that the cost to the Mosses of preventing the harm by

marking the staircase door, warning of the staircase behind the door, or changing

the direction that the door swings would be minimal. Ms. Johnson’s expert states in

his report, quoted elsewhere in this opinion, that “a warning to indicate to users of

the stairs that no landing was present or addition of handrails would have been

relatively simple additions to the stairwell to improve the safety.” The record,

however, lacks any evidence to establish the actual monetary cost of avoiding the

harm.

Nonetheless, Ms. Moss testified regarding the measure that she took to avoid

the risk of falling, which included keeping the staircase door closed and locked as

well as pointing out the staircase to prospective tenants. Indeed, Ms. Moss testified

that she instructed prospective tenants not to leave the key to the deadbolt lock on

the staircase door. Rather, she instructed them to put that key elsewhere—on their

key ring or in a drawer. Keeping the door locked and the key elsewhere would not

have cost anything and could have prevented the harm. This element, in the

balancing test, weighs in favor of a finding that the premises was unsafe.

15

Part Four—Nature of Plaintiff's Activities in Terms of Social Utility or Whether
the Activities were Dangerous by Nature

Ms. Johnson points out that she was simply walking around and observing

the Rental Unit that her son was about to rent. In so doing, she simply opened a

door. She further points out that she was not engaged in any dangerous or unusual

activities when she fell. While the social utility of a mother checking out the

apartment her son is getting ready to move into may be important and is not

dangerous in nature, it does not weigh heavily as a consideration in determining if

the premises was unsafe.

Summarizing, application of the risk/utility balancing test here demonstrates

that reasonable persons could disagree on whether the complained-of-condition

created an unsafe premises—an unreasonable risk of harm. Thus, Defendants

failed to demonstrate the absence of a genuine issue of material fact on this ground.

Since Defendants failed to meet their initial burden of proof, the burden never

shifted to Ms. Johnson to show support for her claim. See La. C.C.P.

art. 966(D)(1).

Nonetheless, Defendants assert two alternative grounds on which they

contend the trial court’s judgment should be affirmed: (i) Ms. Johnson’s status as a

trespasser; and (ii) Mr. Johnson’ assumption in the Lease of liability for defects

under La. R.S. 9:3221.15 We separately address each of these grounds.

Trespasser

15 Contrary to Ms. Johnson’s contention, Defendants’ failure to appeal or answer her appeal does

not preclude this court’s consideration of these arguments. These other grounds for affirming the
trial court’s judgment may properly be considered on appeal because Defendants do not “seek to
have the judgment modified, revised or reversed, but merely affirmed for alternate reasons.”
Barr v. Smith, 598 So.2d 438, 440, n. 2 (La. App. 2d Cir. 1992) (citing La. C.C.P. Art. 2133 and
Clark v. McDonald’s System, Inc., 383 So.2d 61 (La. App. 2d Cir. 1980); Pernia v. Trail, 519
So.2d 231 (La. App. 5th Cir. 1988)).

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Defendants contend that Ms. Johnson was unlawfully on the Mosses’

property on the day of the accident. For that reason, they contend that she was a

trespasser and that they owed her no duty other than to refrain from willful or

wanton injury. We find this argument unpersuasive. The jurisprudence is well

established that “[t]he duties of the landowner for the purpose of determining

liability in negligence actions . . . are no longer defined in terms of the status of the

person entering the land.” Barcia v. Keil's Estate, 413 So.2d 241, 243 (La. App.

4th Cir. 1982) (citing Cates v. Beauregard, 328 So.2d 367 (La.1976)). The proper

test is “whether in the management of his property [the landowner] has acted as a

reasonable man in view of the probability of injury to others, and, although the

plaintiff’s status as a trespasser, licensee, or invitee may in the light of the facts

giving rise to such status have some bearing on the question of liability, the status

is not determinative.” Cates, 328 So.2d at 371 (internal citation and quotation

omitted). It is no longer necessary to determine the plaintiff’s status for purposes of

defining the landowner’s duty. Defendants’ argument that a more stringent—

willful and wanton injury—duty applies here, thus, is unpersuasive.

Assumption of Liability in the Lease

Defendants’ final argument is that in Clause 11 of the Lease, Mr. Johnson

assumed responsibility for the Rental Unit’s condition under La. R.S. 9:3221.16

16 As noted elsewhere in this opinion, the Lease, in Clause 11, states that “Tenant has examined

the premises, including appliances, fixtures, carpets, drapes, and paint, and has found them to be
in good, safe, and clean condition and repair, except as noted in the Landlord-Tenant Checklist.”
The Lease in Clause 11 also states that Johnson should “(1) keep the premises clean, sanitary,
and in good condition… [and] (2) immediately notify Landlord of any defects or dangerous
conditions in and about the premises of which Tenant becomes aware…”

Assuming that an assumption of liability occurred, Defendants contend that the issue
becomes whether the Mosses knew or should have known of any alleged defect or were notified
of any alleged defect. Both Mr. and Ms. Moss testified in their depositions that no one had ever
fallen or tripped down the stairway. The unit inhabited by the Mosses, 4330 Banks Street, was a

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Defendants reliance on La. R.S. 9:3221 is misplaced. The language of the Lease

was insufficient to fall within the parameters of the statute. Mr. Johnson’s

agreement to “keep the premises clean, sanitary, and in good condition” was

insufficient to equate to an assumption of responsibility for the condition of the

Rental Unit under La. R.S. 9:3221. See Wells v. Norris, 46,458, p. 7 (La. App. 2

Cir. 8/10/11), 71 So.3d 1165, 1170 (observing that “[lessee’s] agreement to

‘maintain the house in good repair’ does not equate to his assumption of

responsibility for the condition of the premises leased as contemplated by La. R.S.

9:3221”). Thus, Defendants’ contention that Mr. Johnson assumed responsibility

under La. R.S. 9:3221 is unpersuasive.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed; and

this matter is remanded to the trial court.

REVERSED AND REMANDED

mirror image of the apartment where the incident occurred. Since purchasing the building in
2006, the Mosses were never told that the stairway was potentially dangerous, nor had any
incident occurred during the fourteen years that they owned the building, which would place
them on notice of any alleged defect in the stairway. Thus, Defendants contend that the Mosses
had no reason to believe that the stairway could result in injury. Given the Mosses had no reason
to believe the stairway was allegedly unsafe, and as liability for any accidents on the premises
were transferred to Johnson, Defendants contend that dismissal of Plaintiff's claims against the
Mosses would have also been proper on this basis.

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