BLACKWELL v. BELLSOUTH TELECOMMUNICATIONS LLC LLC FCCI LLC PA ABC LLC XYZ (2026)

Plaintiff appeals a summary judgment rendered in favor of the defendants. Said judgment dismissed plaintiff's suit based on the court's conclusion that plaintiff could not meet her burden of proof at trial to show that a telecommunications wire caused the accident at issue and because the wire was open and obvious. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 3, 2023, Wayne Blackwell and his wife, Madeline Blackwell, filed the instant suit naming Bellsouth Telecommunications, LLC; AT&T Corporation; Old Republic Insurance Company; Stor-Time, LLC; and FCCI Insurance Company as defendants. Subsequently, Mr. Blackwell passed away, and Mrs. Blackwell was substituted as party plaintiff for Mr. Blackwell.¹ Plaintiff alleged that Mr. Blackwell was operating a motorized wheelchair on October 3, 2022, on a public sidewalk when a telecommunications wire attached to a utility pole “became wrapped up in the wheels of his wheelchair, causing his wheelchair to flip over, and for him to be thrown from the wheelchair onto the ground.” Plaintiff alleged the utility pole and wire were owned by and the responsibility of Bellsouth Telecommunications, LLC and AT&T Corporation, and the property upon which the pole and wire were located was owned by Stor-Time, LLC. Other parties were later named defendants via two amended petitions, namely, Cox Communications Louisiana, LLC; Cox Communications, Inc.; National Union Fire Insurance Company of Pittsburgh, PA; Entergy Louisiana LLC; Charter Communications, Inc.; and Charter Communications, Inc. of Louisiana.

In his deposition, Mr. Blackwell, who was 70 years old at the time of the accident and who had been paralyzed in a hunting incident over 30 years prior, indicated that on the day of the accident, he left his home in his motorized wheelchair at approximately 4:00 p.m. to visit a local auto parts store to buy a new battery for his four-wheeler. On his way to the auto parts store, he passed several businesses including Stor-Time, LLC, where Mr. Blackwell indicated there was a utility pole with a black wire hanging from the pole coiled partially onto the sidewalk. Mr. Blackwell testified he reached down and pushed the wire partially out of his path then crossed over it with his wheelchair and proceeded to the auto parts store without incident.

On his way back home from the auto parts store, Mr. Blackwell indicated he took the same path. When he approached the wire for a second time, he testified that it was in the same position. Mr. Blackwell testified he chose to go forward over the wire, and at some point thereafter, he fell out of his wheelchair. Unknown individuals assisted Mr. Blackwell back into his chair. Mr. Blackwell indicated he inspected his wheelchair thereafter and he did not see the wire entangled or connected to it. Mr. Blackwell declined emergency services at that time and proceeded on his way home.

Mr. Blackwell did not take any photographs on the day of this incident, but Mrs. Blackwell took photographs at a later date. The photographs, which were submitted to this court in black and white and attached as exhibits to Mr. Blackwell's deposition, show a utility pole and black wire on one side of the sidewalk. As depicted in the following photograph attached to Mr. Blackwell's deposition as Exhibit 9 and filed on summary judgment, the wire was not protruding onto the sidewalk when Mrs. Blackwell took the photograph.

Plaintiff also submitted a video of the wire blowing in the wind on a very windy day.² The wire never crossed the sidewalk in the video, but it appears it could have given its length.

Following discovery, all defendants collectively filed a motion for summary judgment.³ Defendants alleged that plaintiff could not prove the wire caused Mr. Blackwell's accident. Defendants also alleged the wire did not create an unreasonably dangerous condition.⁴ Plaintiff opposed the motion for summary judgment, urging that a genuine issue of material fact remained as to whether the wire caused Mr. Blackwell's accident and whether the condition and location of the wire created an unreasonably dangerous condition.⁵

After a hearing on defendants’ motion, the trial court took the matter under advisement. The trial court subsequently issued written reasons for judgment wherein it concluded that plaintiff failed to show that the wire was the cause of Mr. Blackwell's accident. The trial court also found “the wire constituted an open and obvious defect [and], [a]s such, there was no breach of duty owed by the Defendants to Mr. Blackwell.” Accordingly, the trial court concluded that summary judgment was appropriate, and subsequently signed a judgment on March 19, 2025, granting the defendants’ motion for summary judgment and dismissing plaintiff's claims against all defendants with prejudice. Plaintiff timely appealed the judgment.

On appeal, plaintiff raises the following assignments of error:

1) The trial court erred when it found that plaintiff did not show that the wire caused Mr. Blackwell's fall.

2) The trial court erred in finding that there was no genuine issue of material fact relative to whether the wire and its condition and location were open and obvious.

LAW

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969. The procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, 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. LSA-C.C.P. art. 966(A)(3).

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. LSA-C.C.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. LSA-C.C.P. art. 966(D)(1).

When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. See LSA-C.C.P. art. 967(B).

An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Wiggins v. Schneider, 2023-1303 (La.App. 1 Cir. 9/19/24), 405 So.3d 622, 626. Since it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id.

Because plaintiff is asserting a state law negligence claim, the standard our courts employ in determining whether to impose liability under LSA-C.C. art. 2315 is the duty/risk analysis. Roberts v. Benoit, 605 So.2d 1032, 1041 (La. 1991). Under the duty/risk analysis, a 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 the duty element); and (5) proof of actual damages (the damages element). Farrell v. Circle K Stores, Inc., 2022-0849 (La. 3/17/23), 359 So.3d 467, 473. A negative answer to any of the inquiries of the duty/risk analysis results in a determination of no liability. Bruno v. Blue Bayou Water Park, LLC, 2023-0675 (La.App. 1 Cir. 12/29/23), 381 So.3d 802, 807.

When there is a claim against the owner or the custodian of a thing “for damage occasioned by its ruin, vice, or defect” under LSA-C.C. art. 2317.1, the plaintiff must show the owner or custodian “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.” Whether a claim is brought under LSA-C.C.P. art. 2315 or art. 2317.1, “the traditional duty/risk analysis is the same.” Farrell, 359 So.3d at 473.

Whether there was a breach of the duty owed is a question of fact or a mixed question of law and fact. Farrell, 359 So.3d at 474. Louisiana courts apply the risk/utility balancing test to make this determination. Id. The Louisiana Supreme Court has adopted the following four-factor test: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature. Id.

Whether a condition is open and obvious is embraced within the second factor of the foregoing test, and is not a jurisprudential doctrine barring recovery, but only a factor in the risk/utility balancing test. Id. at 478. It is inaccurate to profess that a defendant generally does not have a duty to protect against an open and obvious condition. Id. There is, with limited exception, the duty to exercise reasonable care and keep that which is within our custody free from an unreasonable risk of harm. Id. Although the breach of the duty element involves a mixed question of law and fact, summary judgment is not necessarily precluded. Id. 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. Id.

DISCUSSION

The trial court concluded “the wire constituted an open and obvious defect [and], [a]s such, there was no breach of duty owed by the Defendants to Mr. Blackwell.” However, on appeal, plaintiff contends that a genuine dispute exists as to whether the wire was open and obvious to all who encountered it given its condition and its location. Plaintiff avers that it was not solely the wire that created an unreasonably dangerous condition, but the “loosely hanging, movable coiled wire extending onto the public sidewalk[.]” Plaintiff urges given the size, condition, location, and transient nature of the wire, reasonable minds could disagree as to whether the condition was open and obvious. As such, the plaintiff maintains the trial court committed reversible error in concluding that the wire was open and obvious to all who encountered it such that the defendants breached no duty owed to Mr. Blackwell.

In opposition, defendants urge that they owed no duty to Mr. Blackwell given the “open and obviousness of the wire far outweighs the other three risk-utility factors[.]” Defendants also note that Mr. Blackwell testified that he saw the wire twice on the day of the accident and also testified that he had previously seen the wire when he was driving. Defendants aver that plaintiff makes no assertion of any optical illusion or any obstruction of his vision. Defendants assert that because Mr. Blackwell acknowledged seeing the wire on multiple occasions including immediately prior to the accident, then the wire should have been open and obvious to all who encountered it.

Defendants assert that if anything created an unreasonably dangerous condition, it was Mr. Blackwell's actions. Defendants submitted the affidavit of Franki Cali, the owner of Stor-Time, LLC, who attested that Stor-Time had a U-shaped driveway that could allow pedestrians to bypass the sidewalk. Defendants maintain that rather than utilizing the U-shaped entrance to Stor-Time which would have allowed him to avoid the wire entirely, Mr. Blackwell came to a complete stop and then chose to proceed forward over the wire. Defendants assert that no genuine issues of material fact remain given that the wire was open and obvious and could not be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.

In support, the defendants cite Eskine v. City of Gretna, 17-542 (La.App. 5 Cir. 3/14/18), 240 So.3d 338, 339, wherein a permanently disabled plaintiff used a walker to ambulate. While on an elevated walkway over a drainage ditch, the wheel of his walker slipped or rolled off the left side of the walkway causing him to fall into the ditch. Id. The court noted that plaintiff was aware of the “deteriorated condition” of the walkway prior to his fall. Id. at 340. Plaintiff admitted that he would typically avoid using the walkway due to its defective condition, and he could have chosen a different route, but noted that it was a “long walk to go all the way around there[.]” Id. Considering the foregoing, the Fifth Circuit, reasoning that “[a] prudent person would have exercised whatever caution was necessary under the circumstances to avoid the risk created by the alleged hazard[,]” affirmed the district court's ruling granting summary judgment in favor of the defendant. Id. at 344.

Defendants also cite Morel v. Cheema Properties, LLC, 16-666 (La.App. 5 Cir. 4/12/17), 216 So.3d 383, 384, writ denied, 2017-0787 (La. 9/22/17), 228 So.3d 742, wherein an elderly plaintiff was exiting a gas station when she saw two hoses on the ground. Rather than take a different path or ask the cashier to assist her, she attempted to cross the hoses with her cane and ultimately fell. Id. at 387. The court, finding that the hoses were open and obvious, affirmed the district court's grant of summary judgment in favor of the defendant. See Id. at 388.⁶

We note that the foregoing cases cited by defendants were decided prior to Farrell. Further, whether a risk is unreasonable is a factual matter that must be determined in light of each particular case's facts and circumstances and resolved on a case-by-case basis, not a simple rule of law which can be applied mechanically to the facts of the case. See Robinson v. Pointe Coupee Parish School Board, 2023-0215 (La.App. 1 Cir. 2/21/24), 2024 WL 702600, *5 (unpublished). Accordingly, we will address the particular facts and circumstances herein under the four-factor risk/utility test as confirmed by the Louisiana Supreme Court in Farrell.

1) Utility of the complained of condition

There is no direct evidence as to the purpose of the wire and why it could or could not be removed. Even so, plaintiff avers that the wire appears to have no utility as it is coiled on the ground. On the other hand, defendants contend that the wire had social utility by providing services to nearby businesses.

2) Likelihood and magnitude of harm, including the obviousness and apparentness of the condition

The likelihood of the harm factor asks the degree to which the condition is likely to cause harm. Farrell, 359 So.3d at 474. If it is likely to cause harm, such weighs in favor of finding it unreasonably dangerous. Id. If it is unlikely to cause harm, such weighs in favor of it not being unreasonably dangerous. Id. The magnitude of the harm factor asks whether the condition presents a risk of great or small injury and the likelihood of each. Id. The likelihood and magnitude of the harm, includes a consideration of the open and obviousness of the condition. Id. A hazardous condition in a customarily traversed area (such as the entrance to a store or near gas pumps) poses a vastly different likelihood and magnitude of harm than a hazardous condition in a less traversed area (corner of a parking lot). Id. The size of the allegedly dangerous condition is also relevant, and the more obvious the risk the less likely it is to cause injury because it is to be avoided. Id.

If open and obvious to all such that reasonable persons would avoid it, that factor will weigh in favor of finding the condition not unreasonably dangerous. Id. at 478. Moreover, plaintiff's subjective awareness, although potentially relevant for purposes of comparative fault, is irrelevant to a defendant's entitlement to summary judgment. Id. Rather, the condition must be open and obvious to all who may encounter it. Id.

The photograph of the wire at issue depicts it near, but not on, a public sidewalk. However, based on the evidence presented, the wire could undoubtedly encroach upon the sidewalk. Nevertheless, defendants note the subject wire was black in color and was easily visible against the grey cement and grass such that it would be apparent to anyone who encountered it, whether approaching the utility pole on the sidewalk or from any other direction. Moreover, plaintiff does not allege that the wire was ever hidden from Mr. Blackwell's view. Although Mr. Blackwell's subjective knowledge is irrelevant for summary judgment purposes, Mr. Blackwell acknowledged he saw the wire before the day of the accident and two times on the day of the accident, including immediately preceding his accident. Cf. Dickson-Bruno v. Mandeville Marketplace Investors NO, LLC, 2023-1328 (La.App. 1 Cir. 12/27/24), 404 So.3d 50, 58-59, writ denied, 2025-0100 (La. 4/8/25), 405 So.3d 567 (While the sunken meter box would be apparent to anyone who might encounter it on the walkway, a brick pillar obstructed plaintiff's view and that of any reasonable person approaching from the parking lot such that the sunken meter box was not open and obvious to all who encountered it.) Therefore, we conclude the condition was open and obvious to all. Considering the foregoing, we find the likelihood and magnitude of harm to be minimal.

3) Cost of preventing the harm

Plaintiff contends that the cost to remove or repair the wire was likely minimal. However, neither plaintiff nor defendants presented any evidence in this regard.

4) Nature of plaintiff's activities in terms of social utility or whether the activities were dangerous by nature

Mr. Blackwell was utilizing the sidewalk as intended, and his actions were not dangerous by their very nature.

Considering all of the evidence, after applying the risk/utility balancing test, we find that the wire at issue did not present an unreasonably dangerous condition. As such, defendants met their initial burden of pointing out the absence of factual support for the breach element of plaintiff's claim. Farrell, 359 So.3d at 479. Thereafter, the burden shifted to plaintiff to produce factual support to establish the existence of a genuine issue of material fact or that defendants were not entitled to judgment as a matter of law. Id. Plaintiff failed to do so as no reasonable juror could find the wire presented an unreasonable risk of harm such that defendants breached a duty owed to Mr. Blackwell. Accordingly, based on our de novo review, we find summary judgment in defendants’ favor is mandated.⁷

CONCLUSION

For the foregoing reasons, the March 19, 2025 judgment granting summary judgment in favor of defendants, BellSouth Telecommunications, LLC d/b/a AT&T; Old Republic Insurance Company; Stor-Time, LLC; FCCI Insurance Company; Cox Communications Louisiana, LLC; Cox Communications, Inc.; National Union Fire Insurance Company of Pittsburgh, PA; Charter Communications, Inc. of Louisiana; Charter Communications, Inc.; and Entergy Corporation, and dismissing Madeline Blackwell's claims against them is affirmed. Costs of this appeal are assessed to plaintiff/appellant, Madeline Blackwell.

AFFIRMED.

I disagree with the majority opinion and think the summary judgment should be reversed. The plaintiff presented evidence creating genuine issues of material fact as to both the causation and breach of duty elements of her cause of action. Thus, I think the trial court erred in granting summary judgment on both elements.

Regarding causation, Mr. Blackwell's deposition testimony creates genuine issues of material fact as to whether the wire caused the accident. For example, Mr. Blackwell testified that: the wire “lassoed” his wheelchair; the wire “wrapped around a particular part of the wheelchair[,]” which could have been the wheel(s) or a bolt under the wheelchair; the wire “attached to something underneath my wheelchair․ like a steer, it was like a calf coming out of a chute. It only allowed me to go so far before the lasso tightened up and jerked the calf back”; and, he “wholeheartedly” believed it was the wire that caused his wheelchair to fall over. With this evidence, the plaintiff set forth specific facts showing there is a genuine issue as to causation that should go to trial. Thus, although the majority pretermits a discussion of causation, the defendants are not entitled to judgment as a matter of law on this element, and the trial court erred in concluding otherwise. La. C.C.P. art. 966(D)(1).

Regarding breach, under the applicable duty-risk analysis from the Farrell opinion, 359 So.3d 467, 473, four pertinent factors are analyzed: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activity was dangerous in nature.

I think the defendants failed to point to evidence showing that the balancing of the above factors results in a finding of no genuine issues of material fact as to breach. Although the wire may have been “open and obvious” to Mr. Blackwell on the day of his accident, such is not determinative of whether the condition was unreasonably dangerous. Rather, under Farrell, 359 So.3d at 478, “[f]or a hazard to be considered open and obvious, it must be one that is open and obvious to all who may encounter it.” I do not think the defendants have pointed to sufficient evidence to show the obviousness of the condition was apparent to anyone who encountered it.

Further, the obviousness of the condition is only a part of the second element of the duty-risk analysis required to find a breach of duty. See Farrell, 359 So.3d at 478. Thus, even if defendants had pointed to evidence showing that anyone who encountered the wire would obviously have known it was unreasonably dangerous, such does not prove there are no genuine issues as to the remaining duty-risk factors - i.e., the utility of the wire, the cost of preventing the harm, and the nature of the plaintiff's activities in terms of social utility. The majority's scant analysis of the breach element demonstrates the defendants failed to carry their summary judgment burden on the breach element.

FOOTNOTES

1.   Mr. Blackwell was a party to the petition, but died before the motion for summary judgment at issue in this appeal was heard. However, for clarity, we will refer to the “plaintiff” singularly throughout the opinion.

2.   Plaintiff's counsel, Megan C. Kiefer, submitted an affidavit indicating therein that “her firm obtained [the] video from an eyewitness, Daniel Tierney, taken on the date of the incident[.]”

3.   In support of their motion for summary judgment, defendants attached the petitions, Mr. Blackwell's deposition, Plaintiff's Response to Interrogatories and Request for Production of Documents, and the affidavit of Frankie Cali, the owner of Stor-Time, LLC.

4.   The issue of which party or parties had custody and garde over the wire was not raised in the underlying summary judgment motion.

5.   In opposition to defendants’ motion for summary judgment, plaintiff attached the initial petition, portions of Mr. Blackwell's deposition, Mrs. Blackwell's affidavit, Mrs. Kiefer's affidavit, the video of the pole and wire, and Stor-Time, LLC's and FCCI Insurance Company's Responses to Interrogatories.

6.   Additionally, defendants cite Pryor v. Iberia Parish School Bd., 2010-1863 (La. 3/15/11), 60 So.3d 594 (per curiam). However, Pryor involved a manifest error standard of review on appeal after a trial on the merits, rather than the de novo standard applicable to review of summary judgments. See 60 So.3d at 596. In Pryor, an elderly plaintiff attended a high school football game and noticed an unusually large gap between the first and second row of the bleachers. The plaintiff ascended the first two rows by laying down and swinging her legs over. Id. at 595-96. On the way down, plaintiff chose to step down and fell while doing so. Id. at 596. The court found any risk was open and obvious and plaintiff “could have easily avoided any risk by using additional care․or by choosing to sit on the west side of the stadium where suitable accommodations for persons with physical impairments were provided.” Id. at 598. Accordingly, the Louisiana Supreme Court, finding the trial court's determination that the bleachers were not unreasonably dangerous was not clearly wrong, ultimately affirmed the district court's ruling made after a bench trial in favor of the defendant. Id.

7.   Because we find no merit in assignment of error number 2 on the issue of breach of duty, we pretermit discussion on causation raised in assignment of error number 1.

MCCLENDON, C.J.

GREENE, J. dissents and assigns reasons.