AMANDA SEYMOUR v. MURPHY OIL USA INC (2024)

I concur in the writ denial and write separately to reiterate the negligence analysis when the open and obvious doctrine is invoked. As we explained in Farrell v. Circle K Stores, Inc., 22-00849 (La. 3/17/23), 359 So. 3d 467, courts must analyze premise liability cases within the duty-risk framework. For the duty element, the general rule is that the owner or custodian of property has a duty to keep the premises in a reasonably safe condition. Id. at 473. The breach of the duty element utilizes the risk/utility balancing test that considers four factors: (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. at 474. Open and obviousness of the complained of condition falls within the scope of the second factor. “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.” Id. at 478.

We clarified that summary judgment in favor of a defendant is an appropriate remedy if reasonable jurors could only find that the condition was not unreasonably dangerous and, thus, no breach was established. Id.

Here, Plaintiff sustained injuries at a Murphy Oil gas station when she fell into a depression or hole in the concrete while walking to the gas pump. Murphy Oil filed a motion for summary judgment, arguing Plaintiff could not meet her burden of proving that the deviation in the concrete was unreasonably dangerous, claiming the expansion joint had social utility and was open and obvious. Plaintiff opposed the motion. She claimed the condition was not open and obvious, that the site of the accident was not at the expansion joint but was due to crackling, buckling concrete near the joint (which had no social utility), and that a repair request had previously been submitted for the same area where the accident occurred. The cost of the repair was estimated at $3,500 and was denied by Murphy Oil. The lower courts denied Murphy Oil's motion for summary judgment, finding genuine issues of material fact exist and credibility determinations remained.

I agree that summary judgment, while an available remedy, is not appropriate in this case. The duty to keep the premises reasonably safe was established. But, factual issues remain regarding the utility of the condition, the obviousness of the condition, and the cost of preventing the harm. Consequently, it cannot be said that reasonable minds could only conclude that the concrete deviation was not unreasonably dangerous. Thus, summary judgment was properly denied.

CRAIN, J. concurs and assigns reasons.