In trip and fall litigation, the validity of a plaintiff’s claim often turns on whether the condition allegedly causing the fall is a so-called “open and obvious” risk of harm. That is, a risk of harm that is so obvious and discoverable that a reasonable person would have avoided the hazard, and ultimately, the injury.
Knowing what Louisiana courts traditionally deem “open and obvious” can inform a property owner on the likelihood of liability if an injury arises from a fall on their property. Practically, this can prepare property owners for what to watch out for and may lead to quicker resolution of pending litigation should it occur.
“Unreasonably Dangerous” Conditions
If a risk of harm is open and obvious to all who may encounter it, the likelihood that it will cause harm is decreased, and it will not be considered unreasonably dangerous under Louisiana law. This is critical because a defendant does not generally have a duty to protect against an open and obvious hazard. If a plaintiff cannot prove that the defendant owed a duty to protect against the risk of harm, the plaintiff’s claim will necessarily fail.
A Recent Case
Earlier this year, the Louisiana Fifth Circuit Court of Appeal affirmed the trial court’s determination that risk of harm presented by the concrete base of a 20-foot light pole 18 inches wide and 4 inches high was not open and obvious and thus, was unreasonably dangerous.
The trial court’s determination hinged on the fact that, because the base was covered with black mold and dirt and often partially obstructed by shadows, it blended in with the sidewalk and was not open and obvious. In shooting down the property owner’s open and obvious argument, the court emphasized that the mold and dirt on the base combined with shadows from a nearby ramp and the light pole rendered the base virtually indistinguishable from the walkway. Therefore, despite the considerable size of the base of the light pole, the court determined that the base was not open and obvious.
So, what could the property owner have done differently? In its decision the court did offer some guidance that may be instructive to concerned property owners.
The court indicated that its decision was partially based on the light pole base not being marked as a trip hazard when other trip hazards in the walkway were marked as such. Further, the court indicated that, had the base been painted a color that distinguished it from the walkway, it may have been more obvious to those traversing the area.
Visible Markings Help Prevent Injuries
The suggestion to use visible markings is in line with other Louisiana jurisprudence on the issue instructing that visibly marked warning signs and an unobstructed view of the risk of harm cut against a plaintiff’s showing of an unreasonably dangerous condition.
For instance, in another case, the Louisiana Second Circuit Court of Appeal determined that a product display that a plaintiff tripped over did not pose an unreasonably dangerous condition due to its open and obvious nature because the corners of the display were visibly marked with warning signs and the path alongside the display was not obstructed.
Similarly, the Louisiana First Circuit Court of Appeal held that any risk of harm created by a curb was open and obvious because the curb created no optical illusion, nothing prevented the plaintiff from seeing the curb, and the edge of the curb was painted yellow making it readily apparent to all who may encounter it. In that case, the plaintiff, who tripped over the curb outside of a hotel, could not recover because of the failure to show that the curb was an unreasonably dangerous condition.
In summary, the open and obviousness of an alleged risk of harm is an important factor that courts consider when determining whether the risk of harm constitutes an unreasonably dangerous condition.
If a court determines that a risk of harm is open and obvious to all who may encounter it, the plaintiff will likely be unable to carry the burden of proving that there was an unreasonably dangerous condition and the claim will fail.
 Pitre v. Louisiana Tech Univ., 95-1466 (La. 5/10/96), 673 So. 2d 585, 589.
 See Broussard v. State ex rel. Off. of State Bldgs., 2012-1238 (La. 4/5/13), 113 So. 3d 175, 184.
 Tromatore v. Jefferson Par. Hosp. Serv. Dist., 21-551 (La. App. 5th Cir. 5/26/22), 341 So.3d 1269.
 Id. at 1276.
 Id. at 1278.
 See, e.g., Upton v. Rouse’s Enter., LLC, 15-484 (La. App. 5th Cir. 2/24/16), 186 So. 3d 1195, writ denied, 2016-0580 (La. 5/13/16), 191 So. 3d 1057; Jones v. Mkt. Basket Stores, Inc., 2021-354 (La. App. 3d Cir. 3/30/22), reh’g denied (Apr. 27, 2022).
 Primrose v. Wal-Mart Stores, Inc., 48,370 (La. App. 2 Cir. 10/2/13), 127 So. 3d 13.
 Primeaux v. Best W. Plus Houma Inn, 2018-0841 (La. App. 1st Cir. 2/28/19), 274 So. 3d 20, 33.