Public entities, such as the food bank in the City of Kenner, get special treatment when it comes to personal injuries. A plaintiff must prove that a hazard was not open and obvious in order to collect damages for their injuries. The thing must also pose an unreasonable risk of harm. However, if there is an unreasonably dangerous condition, the owner of the premises is supposed to either correct the danger or post some kind of warning for people passing by or using the premises.
Louisiana courts use a four-part test to determine whether a risk is unreasonable. First, the court will consider the utility of the thing, or its overall usefulness. Then, the court considers the likelihood and degree of the harm. Part of that determination considers the openness and obviousness of the condition. That is, they will attempt to consider how likely it is that someone will not notice the condition, and if they did not notice the condition, how badly they will be injured. Third, the court considers the cost of preventing the harm, or how much it would cost to fix the condition. Finally, the court will address how dangerous the plaintiff’s actions were in the first place. For example, if Plaintiff trips on a crack in the sidewalk, but he was running with scissors on public property, then the court will take that into consideration when determining if the crack in the sidewalk is related to his stab wound.
If Plaintiff satisfies all of these prongs, then the public entity will likely be to blame for the plaintiff’s injuries. The public entity faces strict liability if Plaintiff passes all four prongs. Strict liability is a very difficult standard for the public entity to face because there are no degrees of fault. It is either the city’s (or other pubic entity’s fault) or it is not. If Plaintiff meets all four prongs, fault has pretty much already been determined.
This balancing test may sound complicated, but when you consider the open and obvious question in the second prong, it makes it much simpler. The open and obvious prong allows the public entity to avoid liability where the reasonable person would have noticed the condition of the thing. For example, if there is a manhole cover uncovered in the middle of the sidewalk, surrounded by orange cones and signs, there is a good argument that the reasonable person would notice this condition and avoid it. If you are reading a book and not paying attention while you walk, then your injury is likely more your own fault than the city’s.
A case arising from the Parish of Jefferson, which the Plaintiff appealed to the Fifth Circuit Court of Appeals for the State of Louisiana explains this test and applies it to an individual who suffered a head injury. The man was at a food bank collecting food when the injury occurred. He was just on his way out, which required going down some stairs, when he bumped his head on the ceiling above the stairs, fell back, and was dazed for some time. Someone found him and helped him back inside. He went home to rest, but then called the food bank to discuss the incident the next day.
The ceiling above the stairs was about six feet tall. The court found that the condition of the ceiling the stairs was open and obvious, so the city, who owned and operated the food bank, was not liable. Perhaps the most telling evidence that the defense offered is that no one else had been injured from the low ceiling and that several people testified that they had never had problems with the stairs nor knew anyone that had been injured by the ceiling above the stairs.
The interesting portion, however, was that the ceiling above the stairs was actually lower than required by code. In fact, the building was built in 1952 and did not even meet the required code when it was built. Nonetheless, the court still determined that the fact that the ceiling above the stairs violated the code was of no consequence to the fact that the condition was open and obvious. This interesting development shows that the open and obvious condition trumps even a violation of the city code.
Bringing suit against public entities can be difficult, but it is not impossible.
If you have been injured while using a public entity, called the Berniard Law Firm today at 504-521-6000. We would be happy to discuss your legal needs.