Charlene Blalock v. Shelter General Insurance Company and Frank M. Flanagan

STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT CHARLENE BLALOCK NO. 2022 CW 0826 VERSUS

SHELTER GENERAL INSURANCE MARCH 13, 2023 COMPANY AND FRANK M. FLANAGAN

In Re: On motion of Charlene Blalock, for rehearing, 19th Judicial District Court, Parish of East Baton Rouge, No. 696079.

BEFORE: McCLENDON, HOLDRIDGE, AND PEN~ATO, JJ. I

APPLICATION FOR REHEARING GRANTED. The application for rehearing is granted for the purpose i of consideration of the writ by the newly constituted panel following the retirements of Chief Judge Whipple and Judge McDonald.

PMc GH AHP

COURT OF APPEAL, FIRST CIRCUIT

DEPUTY CLERK OF COURT FOR THE COURT

STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT CHARLENE BLALOCK NO. 2022 CW 0826

VERSUS PAGE 1 OF 2

SHELTER GENERAL INSURANCE MARCH 13, 2023 COMPANY AND FRANK M. FLANAGAN

In Re: Shelter General Insurance , Company and Frank M. Flanagan, applying for supervisory writs, 19th Judicial District Court, Par~sh of East Baton Rouge, No. 696079.

BEFORE: McCLENDON, HOLDRIDGE, PENZATO, MILLER, AND GREENE, JJ.

WRIT DENIED. SMM HG

Hol.dridge, J. , concurs. To determine that a condition is open and obvious presupposes that such ',condition is defective. See Broussard v. State ex rel.. Off. of, State Bl.dgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 185, 192 ("In order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers. Thus, while a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact-finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pdse an open and obvious hazard. In other words, the fact-fin~er determines whether defendant has breached a duty to keep its property in a reasonably safe condition by failing tq discover, obviate, or warn of a defect that presents an unrea,sonable risk of harm.") Genuine issues of fact preclude summary judgment herein, as a reasonable interpretation of the evidence is that the defendant homeowner created the defective con di t1on and failed to warn ' plaintiff of such condition. Accordingly, summary judgment is inappropriate.

McCl.endon and Penza to, JJ., dissenit and would grant the writ and the motion for summary j udgment dismissing plaintiff's 1

claims. We find that the air purif ier cord was an open and 1

obvious condition such that defendant ts entitled to summary judgment. Under Louisiana law, a defendant generally does not have a duty to protect against an open and obvious hazard. Broussard v. State ex rel.. Office of State Bl.dgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 184. Plaintiff Charlene Blalock, who was familiar with the home's layout b~cause she was employed as a housekeeper, testified that she was 'not watching where she was going, that she did not look down wh~n she tripped, did not look at the area first before she began cleaning, and that nothing obstructed her view at the time of her fall. Defendant, Frank M. Flanagan, testified he did not have any recollection of moving the air purifier or its cord in the time period leading up to this incident. A pedestrian is not required to look for hidden dangers, but is bound to observe his course to see if his pathway is clear. Mil.l.et v. Cormier, 95-953 (La. App. 3d Cir.

STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT NO. 2022 CW 0826

PAGE 2 OF 2

3/27/96), 671 So.2d 1101, 1106, writ denied, 96-1026 (La. 5/31/96), 673 So.2d 1036.

COURT OF APPEAL, FIRST CIRCUIT

O,.~ DEPUTY CLERK OF COURT FOR THE COURT