Suzanne Farrell And Joseph Farrell v. Circle K

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #015
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 17th day of March, 2023 are as follows:
BY Genovese, J.:
2022-CC-00849 SUZANNE FARRELL AND JOSEPH FARRELL VS. CIRCLE K
STORES, INC. AND THE CITY OF PINEVILLE (Parish of Rapides)
REVERSED AND RENDERED. SEE OPINION.
Weimer, C.J., concurs in the result and assigns reasons.
Hughes, J., dissents and assigns reasons.
Griffin, J., dissents and assigns reasons.

SUPREME COURT OF LOUISIANA
No
. 2022-CC-00849
S
UZANNE FARRELL AND JOSEPH FARRELL
VS.
CIRCLE K STORES, INC. AND THE CITY OF PINEVILLE
O
n Supervisory Writ to the 9th Judicial District Court, Parish of Rapides
GEN
OVESE, J.
T
his Court granted certiorari in this personal injury matter in order to consider
whether the lower courts erred in denying Defendants’ motion for summary
judgment. For the reasons that follow, we reverse and render.
FACTS AND PROCEDURAL HISTORY
On July 10, 2019, Plaintiffs, Suzanne Farrell and her husband, Joseph Farrell,
were traveling to Galveston, Texas, when they stopped to refuel at a Circle K Store
(“Circle K”) located in Pineville, Louisiana. While Mr. Farrell pumped gas, Mrs.
Farrell decided to take their dog for a walk. Mrs. Farrell exited the vehicle and
looked around for a suitable area to take the dog. She ultimately chose a grassy area
located at the edge of the Circle K parking lot. In order to reach this area of grass,
Mrs. Farrell had to traverse a pool of water. The water extended approximately the
length of a tractor-trailer and was draining to the low spot of the parking lot. Mrs.
Farrell walked to the narrowest part of the water—a pproximately one foot across—
and attempted to step over the water. She was unsuccessful , and she fell and
sustained personal injury.
Mr. and Mrs. Farrell subsequently filed this personal injury lawsuit against
Circle K and the City of Pineville (co llectively referred to as “Defendants”).

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Defendants jointly moved for summary judgment,1 arguing that they were not liable
on the ground that the alleged hazardous condition was open and obvious. Plaintiffs
opposed the motion, 2 arguing that the hazard was not the pool of water, but the
slippery substance hidden in the water. Therefore, they argued the hazard was not
open and obvious, and Defendants were not entitled to summary judgment.
The trial court denied D efendants’ motion for summary judgment, finding
“that there exist issues of material fact regarding whether a reasonable person should
have seen the mold/mildew/algae/slime present in the water puddle at issue.” The
trial court explained “that there are genuine issues of material fact, specifically that
relate to whether or not the condition was open and obvious.”
The court of appeal denied Defendants’ writ application, with one judge
dissenting.3 The majority denied the writ application stating: “We find no error in
the trial court’s ruling.” The dissenting judge did not assign reasons. Defendants
then sought writs in this Court, which were granted. Farrell v. Circle K Stores, Inc.,
22-849 (La. 11/8/22), 349 So.3d 570.
LAW AND ANALYSIS
This Court applies a de novo standard of review when considering lower court
rulings on summary judgment motions. Bolden v. Tisdale , 21 -224, p. 10 (La.
1/28/22), 347 So.3d 697, 706 (quoting Bufkin v. Felipe’s Louisiana, LLC, 14-288, p.
3 (La. 10/15/14), 171 So.3d 851, 854; Catahoula Par. Sch. Bd. v. Louisiana Mach.
Rentals, LLC, 12-2504, p. 8 (La. 10/15/13), 124 So.3d 1065, 1071). Thus, we use
the same criteria that govern the trial court’s c onsideration of whether summary

1 Attached to Defendants’ motion for summary judgment were the following exhibits: (1) Petition
for Damages; (2) Answer to Petition for Damages by the City of Pineville; (3) Answer and
Affirmative Defenses to Petition for Damages by Circle K; (4) the depos ition of Mrs. Farrell; (5)
the deposition of Mr. Farrell; and, (6) the deposition of Denise Hendrix, the manager of Circle K.

2 In addition to the exhibits attached by Defendants, Plaintiffs relied on the deposition of Kent
Magee, the maintenance manager of Circle K; however, Mr. Magee’s deposition was not attached
to their memorandum in opposition, and it is not in the record.

3 Farrell v. Circle K Stores, Inc., 22-45 (La.App. 3 Cir. 4/28/22) (unpublished).

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judgment is appropriate. Id. at 706-707. A trial court must grant a
motion for summary judgment if the pleadings, memoranda, affidavits, depositions,
answers to interrogatories, certified medical records, written stipulations, and
admissions show that there is no genuine issue as to material fact and that the mover
is entitled to judgment as a matte r of law. La.Code Civ.P. art. 966 (A)(3)(4). The
summary judgment procedure is designed to secure the just, speedy, and inexpensive
determination of every action, except those disallowed by La.Code Civ.P. art. 969.
La.Code Civ.P. art. 966(A)(2). The procedure is favored and shall be construed to
accomplish these ends. Id.
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. La.Code
Civ.P. art. 966(D)(1). 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. Id. When
a motion for summary judgment is made and supported as provided in La. Code
Civ.P. art. 967(A), an adverse party may not rest on the mere allegations or denials
of his pleading, but his response, by affidavits or as otherwise provided in La.Code
Civ.P. art. 967(A), must set forth specific facts showing that there is a genuine issue
for trial. La.Code Civ.P. art. 967(B). If he does not so respond, summary judgment,
if appropriate, shall be rendered against him. Id.
In this case, Defendants argue that the trial court erred in finding the allegedly
hazardous condition was not open and obvious, even though Mrs. Farrell admitted
that she fell when she misjudged her ability to step over a “murky,” “brownish gray”

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pool of water at the edge of the parking lot. Defendants assert the trial court’s
analysis is flawed because it ignores the fact that the pool of water was itself an open
and obvious hazard. They contend that Mrs. Farrell had a duty to consider the strong
possibility of algae being present in a stagnant pool of water on a hot summer day in
Louisiana. It is their contention that the trial court erred in focusing on what Mrs.
Farrell said she saw and did not see, rather than whether the condition was open and
obvious to all and, thus, would not be dangerous to pedestrians exercising ordinary
care and prudence.
By contrast, Plaintiffs argue that a pool of water is not itself a dangerous
condition; however, algae, mold, and slime constitute hidden dangers. They assert
that a reasonable person, who had never been to the Circle K store before, would not
know that the water had pooled for 12 days and contained algae. Plaintiffs contend
that a reasonable person would not presume that a pool of water hides a layer of
algae. Thus, contrary to Defendants’ contention, Plaintiffs conclude that the defect
was not open and obvious and that the trial court did not err in denying Defendants’
motion for summary judgment.
Plaintiffs assert liability predicated on La.Civ. Code arts. 2315, 2316, 2317,
and 2317.1. Louisiana Civil Code A rticle 2315(A) provides: “Every act whatever
of man that causes damage to another obliges him by whose fault it happened to
repair it.” Louisiana Civil Code Article 2316 states: “Every person is responsible
for the damage he occasions not merely by his act, but by his negligence, his
imprudence, or his want of skill.” Louisiana Civil Code Article 2317 states: “We
are responsible, not only for the damage occasioned by our own act, but for that
which is caused by . . . things we have in our custody.” Finally, Louisiana Civil
Code 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

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defect which caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he failed t o
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.

Whether a claim arises in negligence under La.Civ.Code art. 2315 or in
premises liability under La.Civ.Code art. 2317.1, the traditional duty/risk analysis is
the same. And now, with La.Civ.Code art. 2317.1 ’s requirement of actual or
constructive knowledge of a defect, the result under either should be the same. In
any event, a claim under La.Civ.Code art. 2315 typically focuses on whether the
defendant’s conduct of allowing an unreasonably dangerous condition to exist on its
premises is negligent, while a La.Civ.Code art. 2317.1 claim focuses on whether the
thing itself is defective; i.e., unreasonably dangerous. But, when the legislature
eliminated strict liability for defective things in one’s custody by adding
La.Civ.Code art. 2317.1, a neglige nce standard replaced it. The requirements of
actual or constructive knowledge of the defect and proof that the defendant could
have prevented damage from the defect by exercising reasonable care evidences this
shift. We will utilize a duty/risk analysis to determine whether liability exists. Malta
v. Herbert S. Hiller Corp, 21 -209, p. 11 (La. 10/10/21) 333 So.3d 384, 395
(citing Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La. 11/30/99), 752 So.2d
762, 765).
Under the duty/risk analysis, the plaintiff must prove five separate 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. (citing Boykin v. Louisiana
Transit Co., Inc., 96-1932, pp. 8 -9 (La. 3/4/98), 707 So.2d 1225, 1230 ). If the

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plaintiff fails to prove any one element by a preponderance of the evidence, the
defendant is not liable. Id. (citing Mathieu v. Imperial Toy Corp., 94-952, p. 4 (La.
11/30/94), 646 So.2d 318, 322).
At trial, Plaintiffs would bear the burden of proving the elements of their
claims against Defendants. Thus, for Defendants to prevail on summary judgment,
they were required to show an absence of factual support for any of the elements of
Plaintiffs’ cause of action.
DUTY/RISK ANALYSIS
THE DUTY ELEMENT
The existence of a duty is a question of law. Id. ( citing Posecai, 752 So.2d at
766). The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or
arising from general principles of fault) to support the claim that the defendant owed
him a duty. Id. (citing Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 292
(La.1993)).
In this case, La.Civ. Code arts. 2315, 2316, 2317, and 2317.1, are the sources
of the duty owed. The general rule is that the owner or custodian of property has
a duty to keep the premises in a reasonably safe condition. The owner or custodian
must discover any unreasonably dangerous condition on the premises, and either
correct the condition or warn potential victims of its existence . Consequently, we
find Defendants owed such a duty to Plaintiffs.
THE BREACH OF DUTY ELEMENT
Whether there was a breach of the duty owed is a question of fact or a mixed
question of law and fact. Boykin , 707 So.2d at 1231. Louisiana courts apply the
risk/utility balancing test to make this determination. Bufkin, 171 So.3d at 856
(citing Chambers v. Village of Moreauville, 11-898, p. 5 (La. 1/24/12), 85 So.3d 593,
597-98). This Court has synthesized the risk/utility balancing test to a consideration
of four pertinent factors: (1) the utility of the complained- of condition; (2) the

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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. (citing Broussard, 113 So.3d at 184; Dauzat v. Curnest Guillot Logging,
Inc., 08-528, p. 5 (La. 12/2/08), 995 So.2d 1184, 1186-87 (per curiam); Hutchinson
v. Knights of Columbus, Council No. 5747, 03-1533, pp. 9 -10 (La. 2/20/04), 866
So.2d 228, 235; Pitre v. Louisiana Tech Univ., 95-1466, pp. 11 -15 (La. 5/10/96),
673 So.2d 585, 591-93. We, therefore, consider these four factors herein.
Risk Utility Balancing Test
Utility of the complained of condition
The alleged defect was not intended nor present by design. If it 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. Here, there is no evidence the pool of water
was intended, nor do we otherwise find any utility to its presence in the parking lot
of a commercial store.
Likelihood and magnitude of the harm, including the obviousness and apparentness
of the condition

The likelihood of the harm factor asks the degree to which the condition will
likely cause harm. If it is likely to cause harm, that weighs in favor of finding it
unreasonably dangerous. If it is unlikely to cause harm, that weighs in favor of it
not being unreasonably dangerous. The magnitude of the harm factor asks whether
the condition presents a risk of great or small injury and the likelihood of each. The
likelihood and magnitude of the harm , includes a consideration of the open and
obviousness of the condition. Relative to the instant matter, undisputedly, there was
water flowing into part of the parking lot and standing water in the area where Mrs.
Farrell fell. The pool of water was located at the edge of the parking lot, and it was
of a significant size. Mrs. Farrell described it as bigger in length than a car and

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approximately a foot wide at its narrowest portion. According to Mrs. Farrell, it was
also dirty, “[b]rownish-gray” in color, and “the water was very noticeable because it
was flowing freely.” There was debris in the water. Ms. Hendrix, the manager of
Circle K, testified it was approximately the size of a fuel truck.
We note that the size of the allegedly unreasonably dangerous condition is
relevant. The more obvious the risk, the less likely it is to cause injury because it
will be avoided. Thus, it is conceivable that an allegedly hazardous condition, as
alleged in this case, located at the entrance to the store, may ultimately be determined
to be unreasonably dangerous; whereas, the same condition, located in the corner of
a parking lot, may not be unreasonably dangerous because the likelihood and
magnitude of harm is vastly different. It is also relevant that the pool of water was
not located in a customarily traversed area, such as the entrance to the store, where
patrons would likely encounter it or be forced to encounter it to go into the location.
It also was not located near the gas pumps, where, again, it would necessarily or
likely be encountered by customers.
We are cognizant that the analysis of whether a condition is open and obvious
has been applied differently and inconsistently in the jurisprudence. At this juncture,
we find it prudent to note that the phrase “open and obvious” is, frankly, a figment
of judicial imagination. “The phrase ‘open and obvious’ is also notably absent from
any of the premises liability statutes. These concepts—embodied in our risk- utility
analysis— are thus strictly jurisprudential doctrines[.]” Broussard, 113 So.3d at 189,
n.8. Moreover, in some instances, whether a condition is open and obvious has been
considered as part of the duty element of the duty/risk analysis. In others, it has
been incorporated in the breach of the duty element of the duty/risk analysis. As
has been noted in the jurisprudence discussed below, w hen analyzing the existence
of a duty by determining whether a condition is open and obvious and, thus, not an
unreasonable risk of harm, courts erroneously conflate the duty and breach elements.

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Considering their numerosity, a discussion of each decision making this error need
not be addressed. However, the pertinent decisions of this Court discussed below
demonstrate the conflation that occurs and the inaccuracy of prior statements by this
Court, which we now rectify.
In Broussard,4 this Court recognized the problematic analysis, stating:
We have stated that if the facts and circumstances of a particular
case show 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. E.g.,Caserta,12-0853 at
p. 1, 90 So.3d at 1043; Dauzat, 08-0528 at p. 4, 995 So.2d at 1186;
Hutchinson, 03-1533 at p. 9, 866 So.2d at 234; Pitre, 95-1466 at p. 7,
673 So.2d at 589; Socorro v. City of New Orleans, 579 So.2d 931, 942
(La.1991). While this statement is consistent with our “open and
obvious to all” doctrine, by tethering the existence of a duty to a
determination of whether a risk is unreasonable, our prior decisions
have admittedly conflated the duty and breach elements of our
negligence analysis. See Maraist, et. al., Answering a Fool, 70 LA.
L.REV. at 1121-22, 1124. This conflation, in turn, has confused the role
of judge and jury in the unreasonable risk of harm inquiry and arguably
transferred “the jury ’s power to determine breach to the court to
determine duty or no duty.” Id. at 1124, 1132-33.

In order to avoid further overlap between the jury’s role as fact-
finder and the judge’s role as lawgiver, we find the analytic framework
for evaluating an unreasonable risk of harm is 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. It is axiomatic that
the issue of whether a duty is owed is a question of law, and the issue
of whether a defendant has breached a duty owed is a question of fact.
E.g., Brewer v. J.B. Hunt Transp., Inc., 09-1408, p. 14 (La.3/16/10), 35
So.3d 230, 240 (citing Mundy v. Dep’t of Health and Human Res., 620
So.2d 811, 813 (La.1993)). . . . Because the determination of whether a
defect is unreasonably dangerous necessarily involves a myriad of
factual considerations, varying from case to case, Reed, 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. See
Maraist, et. al., Answering a Fool, 70 LA. L.REV.at 1120.

4 In Broussard, the complained of condition was a malfunctioning elevator. The plaintiff was a
United Parcel Service delivery person who was injured while trying to maneuver a loaded dolly
into the elevator that had stopped a few inches above the floor. Following trial, a jury found the
elevator presented an unreasonable risk of harm. The appellate court found this determination to
be manifestly erroneous and reversed. This Court granted writs and reinstated the trial court’s
judgment, finding the appellate court erred in reversing the jury’s determination that the elevator
presented an unreasonable risk of harm because a reasonable jury could have determined that the
danger posed by the elevator was not open and obvious to all who encountered it. Broussard, 113
So.3d 175.

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Broussard, 113 So.3d at 184-85 (footnote omitted).

Broussard, therefore, acknowledged the differing analysis and reasoned that
the proper analysis for evaluating an unreasonable risk of harm was in the context
of whether there was a breach of a duty owed. However, Broussard’s language
that, “[a]s 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[,]” was later misinterpreted. Id. at 183. Some courts interpreted this
language as stan ding for the proposition that the question of whether a defect is
unreasonably dangerous must always be presented to the trier of fact and cannot be
resolved as a matter of law on summary judgment. Following Broussard, this Court
made it clear that, absent any material factual issue, the summary judgment
procedure can be used to determine whether a defect constitutes an unreasonably
dangerous condition, and thus, does not present an unreasonable risk of harm.
However, admittedly, the language o f these decisions failed to eliminate the
conflation of duty and breach as ha d been addressed in Brouss ard. Despite
Broussard, courts continued to speak in terms of no duty when there existed open
and obvious conditions on premises. See Bufkin, 171 So.3d 851; Allen v. Lockwood,
14-1724 (La. 2/13/15), 156 So.3d 650.
In Bufkin, 171 So.3d at 859 n.3,5 this Court clarified its holding in Broussard,
to make clear that Broussard “ should not be construed as precluding summary
judgment[.]” Regrettably , Bufkin also removed some of the analytical clarity
provided by Broussard . N otably, Bufkin begins with the statement that the writ
presented “the issue of whether a building contractor breached any legal duty owed

5 Bufkin involved a dumpster that had been placed on several parking spaces in the French Quarter
of New Orleans. The dumpster was being used in connection with renovations of a building. As
a pedestrian, plaintiff encountered the dumpster and a construction barrier blocking his path. The
barrier contained signage indicating that the sidewalk was closed, as well as a large arrow directing
pedestrians to the sidewalk on the opposite side of the street. As plaintiff attempted to cross the
street, a bicyclist, riding in the wrong direction, struck and injured him. Bufkin, 171 So.3d 851.

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to a pedestrian. . . .” Id. at 851. However, t hat statement was followed by “we
conclude that the dumpster was obvious and apparent, and not unreasonably
dangerous; thus, there was no duty to warn of the clearly visible obstruction[.]” Id.
In the context of summary judgment, the no duty holding was repeated, as we opined
that summary judgment is not precluded “ when no legal duty is owed because the
condition encountered is obvious and apparent to all and not unreasonably
dangerous.” Id. at 859 n.3 . Thus, following Bufkin, the language of Broussard
seemingly prohibiting summary judgment was clarified; however, Bufkin reverted
back to “no legal duty” language , thereby perpetuating the confusion in the
jurisprudence conflating the duty and breach elements of a negligence analysis.
Subsequently, in Allen, 156 So.3d 650,6 we were presented with the issue of
whether defendants were entitled to summary judgment whe re the plaintiff alleged
defendants’ parking lot was unreasonably dangerous. The Allen Court granted writs:
[T]o provide much needed guidance to both the practitioners and the
Judiciary of this State on the proper interpretation and application of
our holding in Broussard v. State Ex Rel. Office of State Buildings, 12-
1238 (La.4/5/13), 113 So.3d 175, when addressing motions for
summary judgment on the issue of whether an alleged defect presents
an unreasonable risk of harm.
Id. at 651.
This Court, in Allen, stated that the court of appeal “misinterpreted our holding
in Broussard by concluding ‘ [t]he supreme court has held that the question of
whether a [condition] presents an unreasonable risk of harm is a mixed question of
law and fact and, accordingly, should be determined by the fact-finder,’ which would
preclude summary judgment on these iss ues.” Id. at 652. This Court noted that,

6 In Allen, the complained- of condition was an unpaved, grassy parking area owned by the
defendants. A church member struck the plaintiff with her vehicle when the church member was
backing out of the parking area. The trial court denied the defendants ’ motion for summary
judgment. The court of appeal denied the defendants’ writ application, citing Broussard. Id. at
652.

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procedurally, Broussard involved a jury trial, not a motion for summary judgment.7
We then made it clear that: “Any reading of Broussard interpreting it as a limit on
summary judgment practice involving issues of unreasonable risk of harm is a
misrepresentation of the Broussard case.” Id. at 652-53. Although we expressly
referred to “issues of unreasonable risk of harm[,]” i nconsistently, we quoted
Bufkin’s language that there is no duty owed when risk is open and obvious to all
who encounter it and not unreasonably dangerous. Thus, despite referring to the
absence of a duty, Allen compounded the conflation of the duty and breach elements
by opining that, when considering a motion for summary judgment, “the court’s
obligation is to decide ‘if there [is] a genuine issue of material fact as to whether the
[complained-of condition or thing] created an unreasonable risk of harm. . . .’” citing
Broussard, which would be a question of breach. Id. at 653.
Ultimately, the Allen Court found “as there is no genuine issue as to whether
the parking area was unreasonably dangerous, the church defendants are entitled [to]
summary judgment in their favor as a matter of law. ” Id. However, given the
language of Allen, arguably , it was unclear whether the Court determined that
defendants were entitled to judgment as a matter of law based upon the lack of a
duty or the lack of a breach. Therefore, Allen left the appropriate analysis unclear.
Acknowledging the confusion which has arisen and the legitimate criticism
thereof, we specifically clarify herein that whether a condition is open and obvious
is embraced within the breach of the duty element of the duty /risk analysis and is
not a jurisprudential doctrine barring recovery, but only a factor of the risk/utility
balancing test. Specifically, it falls within the ambit of the second factor of the

7 The Allen Court explained that, in Broussard : “ Our comments under this discussion clearly
pertained to cases that were tried either by judge or jury. Broussard did not involve summary
judgment practice nor did our discussion infer that issues of this nature must be determined by a
trial.” Id. Allen’s recognition of the procedural posture of the case is one that courts must remain
mindful of. A fact -intensive determination after a trial on the merits as to whether a defect is
unreasonably dangerous differs from such a determination at the summary judgment stage.

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risk/utility balancing test, which considers the likelihood and magnitude of the harm,
and it is not a consideration for determining the legal question of the existence of a
duty. Thus, although this Court has so stated before, it is inaccurate to profess that
a defendant generally does not have a duty to protect against an open an obvious
condition. There 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. If
the application of the risk/utility balancing test results in a determination that the
complained of hazard is not an unreasonably dangerous condition, a defendant is not
liable because there was no duty breached. Although the breach of the duty element
involves a mixed question of law and fact, summary judgment is not necessarily
precluded. Summary judgment, based on the absence of liability, may be granted
upon a finding that reasonable minds could only agree that the condition was not
unreasonably dangerous; therefore, the defendant did not breach the duty owed. In
such instance, the plaintiff would be unable to prove the breach element at trial.
Defendants point out certain facts relative to Mrs. Farrell’s subjective
awareness. While we provide instruction on the proper analysis, our conclusion
herein does not change the basic premise of open and obvious. 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. I f
so, that reasonable person would avoid it, and the factor will weigh in favor of
finding the condition not unreasonably dangerous. Whether the plaintiff has
knowledge of the condition is irrelevant in determining whether the thin g is
defective. Otherwi se, the analysis resurrects the long ago abolished doctrines of
assumption of the risk and contributory negligence, both of which focus on the
knowledge and acts of the plaintiff. The plaintiff’s knowledge is appropriately
considered in assessing fault, but is not appropriate for summary judgment

14

proceedings. T herefore, as applied to this case, Mrs. Farrell’s knowledge and
appreciation of the allegedly hazardous condition is not determinative.8 Although it
would be relevant in a trial on the merits, for purposes of potential comparative fault,
Mrs. Farrell’s awareness is irrelevant to Defendants’ entitlement to summary
judgment.
With regard to the magnitude of the harm, anyone who would encounte r the
pool of water would not look at it and conclude it presents a likelihood of great harm.
Considering the facts of this case, including the location of the pool of water , the
size and condition thereof, and the fact that the condition was apparent to all who
may encounter it, we find the likelihood and magnitude of the harm, to be minimal.
Cost of preventing the harm
Turning back t o the risk/utility balancing test’s third factor , the cost of
prevention, we find the record is void of any such evidence. Therefore, this Court
is unable to consider this factor in applying the risk/utility balancing test.
Nature of plaintiff’s activities in terms of social utility or whether the activities were
dangerous by nature

Finally, the fourth factor of the risk /utility balancing test involves a
consideration of the nature of the plaintiff’s activity in terms of social utility or
whether the activities were dangerous by nature. In this case, Mrs. Farrell was taking
their dog for a walk while Mr. Farrell pumped gas. While the social utility of
walking a dog may be important and it is not dangerous in nature, it does not weigh
heavily as a consideration in determining an unreasonably dangerous condition.

8 Defendants assert: there were other grassy areas around the parking lot Mrs. F arrell could have
utilized; she made a conscious assessment as to where she was going to walk the dog; she looked
a full 360 degrees; she assessed the area and chose this area; she saw the pool of water before
heading in that direction; she knew she would have to step over it; she found the narrowest point
of the water; she walked toward it; she decided to try and step over the water despite its appearance;
and, s he “made as wide of a step as [she] was capable,” but, in her words, she “may have
inadvertently stepped into it partially, because [she has] short legs.”

15

For the reasons set forth above, after applying the risk/utility balancing test,
we find that the allegedly hazardous condition, be it the pool of water at the edge of
the parking lot or the slippery substance contained within the water, was not an
unreasonably dangerous condition. Therefore, Defendants met their initial burden
of pointing out the absence of factual support for the breach element of Plaintiffs’
claims. Thereafter, the burden shifted to Plaintiffs to produce factual support
sufficient to establish the existence of a genuine issue of material fact or that
Defendants are not entitled to judgment as a matter of law. Plaintiffs have failed to
do so as no reasonable juror could find that Defendants breached the duty owed to
Plaintiffs. Consequently, summary judgment in favor of Defendants is mandated.
Further, on the issue of breach, P laintiffs also advance the argument that the
water leak began on June 28, 2019, and Circle K discovered the leak and the resulting
standing water, but failed to timely call the City of Pineville to repair the leak or to
take any action to warn customers of the danger presented. This argument fails
because the standing water did not create an unreasonably dangerous condition.
Whether they failed to eliminate or warn against it is irrelevant since we find it is
not unsafe.
THE CAUSE -IN-FACT EL EMENT, THE SCOPE OF THE D UTY
ELEMENT, AND THE DAMAGES ELEMENT

Given our ruling that Defendants did not breach a duty, we pretermit any
further discussion of the cause-in-fact element, the scope of the duty element, and
damages elements herein.
CONCLUSION
Liability is determined utilizing a duty/risk analysis. Generally, there exists a
duty to maintain one ’s property in a reasonably safe condition and to correct an
unreasonably dangerous condition or to warn of its existence. The question of
whether a condition is open and obvious and, thus, not unreasonably dangerous, is

16

an issue of breach, not duty. To determine if there has been a breach of a duty owed,
courts are to apply the risk/utility balancing test. The second factor of the risk/utility
balancing test includes the likelihood and magnitude of harm, which includes the
open and obvious nature of the condition. 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.
For the reasons set forth above, this Court finds that the trial court erred in
denying Defendants’ joint motion for summary judgment, as did the court of appeal
in finding no error in the trial court’s ruling . Defendants met their burden of proving
their duty was not breached. Thereafter, Plaintiffs failed to come forward with
specific facts showing that there remains a genuine issue of material fact. Because
Plaintiffs failed to establish that they would be able to meet their burden of proof at
trial to show a breach of duty on the part of Defendants and/or demonstrate that
Defendants’ conduct was a cause -in-fact of their injuries, s ummary judgment in
favor of Defendants is mandated.
DECREE
The judgments of the lower courts are reversed, and summary judgment is
hereby entered in favor of Circle K Stores, Inc. and the City of Pineville, dismissing
the claims of Susan Farrell and Joseph Farrell.
REVERSED AND RENDERED.

SUPREME COURT OF LOUISIANA
No. 2022-CC-00849
SUZANNE FARRELL AND JOSEPH FARRELL
VS.
CIRCLE K STORES, INC. AND THE CITY OF PINEVILLE
On Supervisory Writ to the 9th Judicial District Court,
Parish of Rapides
WEIMER, C.J., concurring in the result.
This court granted writs in this matter to address, and 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.
With its analysis, the majority has outlined and appropriately corrected the
confusion that arose in the jurisprudence subsequent to our decision in Broussard v.
State ex rel. Office of State Buildings, 12-1238 (La. 4/5/13), 113 So.3d 175, which
itself corrected earlier jurisprudence that had tended to conflate the duty and breach
questions insofar as the “open and obvious” defense is concerned.1 Broussard
explained that the “open and obvious” defense is a question of breach, not duty, and
part of the risk/utility analysis. Id., 12-1238 at 11-12; 113 So.3d at 185.
With the majority decision, the statement that “no legal duty is owed because
the condition encountered is obvious and apparent to all and not unreasonably
dangerous,”2 should disappear from the jurisprudence, joining other discarded phrases
1 For a thorough and scholarly analysis of this court’s “open and obvious” jurisprudence, see
Professor Galligan’s timely article, Thomas C. Galligan, Jr., Continued Conflation Confusion in
Louisiana Negligence Cases: Duty and Breach, 97 Tul.L.Rev. (forthcoming March 2023). See also
Frank L. Maraist, H. Alston Johnson III, Thomas C. Galligan, Jr., & William R. Corbett, Answering
a Fool According to His Folly: Ruminations on Comparative Fault Thirty Years On, 70 La. L. Rev.,
1105 (2010).
2 Bufkin v. Felipe’s Louisiana, LLC, 14-288, p. 12 (La. 10/15/14), 171 So.3d 851, 859 n.3

of negligence law such as “assumption of the risk.”3 Also, it should be abundantly
clear going forward that 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.
I write separately primarily to elaborate more fully on what considerations will
be relevant in determining whether summary judgment, which “is designed to secure
the just, speedy, and inexpensive determination of every action” and is now
“favored,”4 is warranted in cases such as this one where issues (such as breach),
which are typically reserved for the trier of fact are presented.
Pursuant to La. C.C.P. art. 966(A)(3), “a motion for summary judgment 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.” This court has recognized that a “genuine issue” is a “triable issue.”
Jones v. Estate of Santiago, 03-1424, p. 6 (La. 4/14/04), 870 So.2d 1002, 1006. As
the court has explained, “[a]n issue is genuine if reasonable persons could disagree.
If on the state of the evidence, reasonable persons could reach only one conclusion,
there is no need for a trial on that issue.” Id., (quoting Smith v. Our Lady of the
Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750). A fact is “material,”
moreover, “when its existence or nonexistence may be essential to plaintiff’s cause
of action under the applicable theory of recovery.” Id.
Based on these definitions, the task of the court presented with a properly
supported motion for summary judgment on the issue of breach (such as presented in
this case) will be to assess whether or not there is a “genuine issue” for trial; i.e.,
3 Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La. 1988).
4 La. C.C.P. art. 966(A)(2).
2

whether, on the undisputed facts presented, no reasonable juror could have found that
the defendant failed to act reasonably. An affirmative answer to this inquiry should
result in the grant of summary judgment on grounds that the plaintiff will be unable
to prove the breach element of his or her claim at trial.5
Thus, as the majority notes, and as I write to emphasize, re-affirming
Broussard’s conclusion that the open and obvious defense is not a “doctrine” but
properly a part of the risk/utility analysis applied in fault-based cases to determine
whether the condition encountered created an unreasonable risk of harm does not
preclude summary judgment in the appropriate case.
Turning to the facts of the present case, I must respectfully disagree with one
aspect of the majority’s duty/risk analysis: its conclusion that no reasonable juror
could find that Circle K failed to act reasonably and that summary judgment is
appropriate on this basis. To be clear, I agree with the majority’s broad, Civil Code
based, articulation of the duty that is owed here: under La. C.C. arts. 2317 and
2317.1, the owner or custodian of property owes a duty to discover any unreasonably
dangerous condition on the premises, and either correct the condition or warn
potential victims of its existence. I also agree that in determining whether a condition
is unreasonably dangerous, the court has adopted a risk/utility balancing test “wherein
the fact-finder must balance the gravity and risk of harm against individual societal
rights and obligations, the social utility of the thing, and the cost and feasibility of
repair.” Broussard, 12-1238 at 9-10; 113 So.3d at 184. Where I depart from my
colleagues is in the determination that reasonable minds could not reach different
conclusions with respect to whether Circle K acted reasonably in failing to take
5 Likewise, a court could also grant summary judgment in a plaintiff’s favor on the issue of breach
upon a finding that no reasonable juror would fail to find a breach of the appropriate standard of care
under the uncontested facts.
3

measures to remediate the pooling water in its parking lot for a period of 12 days,
allowing algae, mold and slime to accumulate under and around its murky surface.
Obviously, my departure from the majority stems largely from the manner in which
the majority has characterized the condition that existed on Circle K’s premises.
The facts developed below disclose that the water that had accumulated on the
surface of Circle K’s parking was not simply a “pool of water,”6 such as that which
might accumulate after a heavy rainstorm and be expected to dissipate shortly.
Rather, the substantial pool of water (roughly the size of a fuel truck) was the result
of a leaking pipe, the existence of which Circle K employees had discovered 12 days
prior to Mrs. Farrell’s accident, but which they took no action to remedy or warn
about. At the time of the accident, in July in the south, Mrs. Farrell alleged that the
murky water disguised the presence of slime/mold/mildew that had been allowed to
grow on the parking lot surface, and that this was the unreasonably dangerous
condition – not the presence of the water in and of itself.
Using this appreciation of the condition Mrs. Farrell encountered, my
application of the factors involved in the risk/utility balancing test results in a
different conclusion from that reached by the majority as to whether the condition on
the Circle K premises created an unreasonable risk of harm. First, as to the utility of
the condition, I agree with the majority that there is no social utility to the existence
of a pool of water, resulting from a continuous leak that has existed for days, in the
parking lot of a commercial establishment.
The second factor in the risk/utility balancing test is the likelihood and
magnitude of the harm posed by the condition of the premises, including whether that
condition was open and obvious. The majority relies on the “location of the pool of
6 Farrell v. Circle K Stores, Inc. and the City of Pineville, 22-00849, slip op. at 8
4

water, the size and condition thereof, and the fact that the condition was apparent to
all who may encounter it” to conclude that likelihood and magnitude of harm in this
case was “minimal.” Farrell v. Circle K Stores, Inc. and the City of Pineville, 22-
00849, slip op. at 14. While I agree that the size and location of the condition may
be factors in determining the likelihood and magnitude of the harm, here, while the
standing water was significant in size, it had accumulated on the paved parking
surface of a commercial establishment, in an area where customers were invited to
park their vehicles. Moreover, as to the openness and obviousness of the condition,
the undisputed evidence establishes that the surface of the water was murky,
disguising the slime/mold/mildew that had proliferated below it over time. The
condition complained of – the slime/mold/mildew – was not open and obvious to all.
Indeed, as the majority finds, “anyone who would encounter the pool of water would
not look at it and conclude it presents a likelihood of great harm.” Id. At any rate,
at a minimum, there exists a factual issue as to whether the presence of
slime/mold/mildew under standing water should be obvious to all who might
encounter it. Thus, I find that the likelihood and magnitude of harm created by the
condition of the premises was not insignificant.
With respect to the third and fourth factors of the risk/utility balancing test, I
agree with the majority that nature of Mrs. Farrell’s activities – walking her dog while
stopping to refill her vehicle’s gas tank – was, while arguably socially useful, not an
activity that is dangerous by its nature. As to the cost of preventing/repairing the
leak, I also agree that there is no direct evidence in the record on this point; however,
as the leak was the responsibility of the City, one can assume there is minimal cost
to Circle K in assuming the responsibility to report the continuing existence of the
leak, or warning customers of the dangerous condition.
5

Considering the foregoing factors, therefore, I find that reasonable persons
could conclude that Circle K failed to act reasonably, and that the condition of its
premises created an unreasonable risk of harm. Thus, I do not find summary
judgment appropriate on this basis. However, I do find that summary judgment is
appropriate on other grounds; specifically, the Farrells’ failure to produce factual
support sufficient to establish the existence of a genuine issue of material fact as to
a different, but equally essential, element of their claim: cause-in-fact.
The cause-in-fact element of the duty/risk analysis is usually a “but for”
inquiry, which tests whether the accident would have happened but for the
defendant’s substandard conduct. Malta v. Herbert S. Hiller Corporation, 21-
00209, p. 16 (La. 12/10/21), 333 So.3d 384, 398. While the cause-in-fact question
is a factual one, Id., here the facts are not in dispute. As the facts recited by the
majority reveal, although there were other grassy areas in which Mrs. Farrell could
have chosen to walk her dog, she purposefully chose the location that required her to
traverse the murky water, water she stated she would not have allowed her dog to
drink. She approached the water, evaluated the situation and, because she did not
want to get her feet wet, chose to cross at a point (approximately a foot in width) that
she believed she was capable of stepping over without incident. She misjudged her
ability, mis-stepped, and fell. On these facts, no reasonable juror could find that Mrs.
Farrell’s fall would not have occurred “but for” defendants’ conduct. The accident
did not occur because of the presence of the water or the hidden danger thereunder,
but because Mrs. Farrell misjudged her ability to step over the water. In deposition,
Mrs. Farrell acknowledged that her accident probably would not have happened had
she chosen a different area to walk and/or had she not decided to step over the water.
Thus, defendants met their burden of proving an absence of factual support for the
6

cause-in-fact element of the duty/risk analysis, and plaintiffs failed to produce factual
support sufficient to establish the existence of a genuine issue of material fact or that
defendants are not entitled to judgment as a matter of law on this element of
plaintiffs’ claim. Therefore, I respectfully concur in the ultimate conclusion of the
majority that summary judgment in favor of the defendants is correct.
7

S
UPREME COURT OF LOUISIANA
No
. 2022-CC-00849
S
UZANNE FARRELL AND JOSEPH FARRELL
VS.
CIRCLE K STORES, INC. AND THE CITY OF PINEVILLE
O
n Supervisory Writ to the 9th Judicial District Court, Parish of Rapides
H
ughes, J., dissenting.
I respectfully dissent. The water pool at issue had been standing for 12 days
and contained debris (obvious) and slime (not so much). These facts should be
presented to a trier of fact for comparison of fault.

SUPREME COURT OF LOUISIANA
No. 2022-CC-00849
SUZANNE FARRELL AND JOSEPH FARRELL
VS.
CIRCLE K STORES, INC. AND THE CITY OF PINEVILLE
On Supervisory Writ to the 9th Judicial District Court, Parish of Rapides
GRIFFIN, J., dissents and assigns reasons.
Finding genuine issues of material fact exist to preclude summary judgment,
I respectfully dissent. I further question the continued application of the open and
obvious doctrine in the risk/utility balancing test regardless of whether it is posed as
a question of duty or breach. Aptly described by the majority as a “figment of the
judicial imagination,” scholars have observed that courts merely created a
replacement for the recovery -barring defenses of contributory negligence and
assumption of risk. See Frank L. Maraist, H. Alston Johnson III, Thomas C.
Galligan, Jr., and William R. Corbett, Answering a Fool According to His Folly:
Ruminations on Comparative Fault Thirty Years On , 70 La. L. Rev. 1105, 1134
(2010).
The distinction between the hypothetical reasonable person and the individual
plaintiff is little more than sophistry. Instead, consideration of whether a hazard is
open and obvious appears premised on the “notion that there are plaintiffs who do
such foolish things or create such risks that it is not fair for them to recover.” Id.
This effectively creates a modified comparative fault system in derogation of
Louisiana’s statutorily established pure comparative fault system. “Under the pure
comparative fault system … [a] plaintiff’s negligence will only diminish, not defeat,
recovery as long as plaintiff’s negligence is less than 100%.” Watson v. State Farm

Fire and Cas. Ins. Co. , 469 So.2d 967, 971 n. 9 (citing R. Pearson, Apportionment
of Losses, 40 La. L. Rev.343, 344 (1980)).