Recent Developments: Broussard v. State and the Not So Obvious Application of the Open and Obvious Doctrine

Author:John M. Church
Position::Harry S. Redmon, J.Y. Sanders, and Allen L. Smith, Jr. Associate Professor of Law, Louisiana State University, Paul M. Hebert Law Center
Pages:857-872
 
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Recent Developments: Broussard v. State and the Not
So Obvious Application of the Open and Obvious
Doctrine
John M. Church
INTRODUCTION
Every jurisdiction must determine the circumstances in which a
tort defendant may be relieved of liability because of the nature of
the fault or defect. In Broussard v. State,1 the Louisiana Supreme
Court restricted one of the defenses available to defendants when it
revisited the open and obvious doctrine announced in 1996 in Pitre
v. Louisiana Tech.2 While the Broussard Court purportedly
preserved the open and obvious doctrine, the case represents a
significant and important limitation on the availability of the
defense. Indeed, it could be argued that the limitation announced in
Broussard effectively eliminates the open and obvious nature of the
defect as an independent defense. Thus, Broussard could be one of
the most important Louisiana tort cases decided in more than a
decade.
I. BROUSSARD V. STATE: RESTRICTING THE SCOPE OF THE OPEN AND
OBVIOUS DOCTRINE
A. Factual Background
Paul Broussard, a United Parcel Service (UPS) deliveryman,
sued the State of Louisiana for damages he sustained in an accident
on January 23, 2001, while loading a dolly into a misaligned
elevator in Wooddale Tower in Baton Rouge.3 The Wooddale
Tower is a state-owned office building with 12 stories and two
elevators in the lobby.4 In 1998, Wooddale Tower’s roof was
repaired, and the repair efforts generated a large volume of dust and
debris.5 Over time, the construction dust and debris settled and
accrued in the elevator relay, triggering the elevators to “operate
Copyright 2014, by JOHN M. CHURCH.
Harry S. Redmon, J.Y. Sanders, and Allen L. Smith, Jr. Associate Professor
of Law, Louisiana State University, Paul M. Hebert Law Center.
1. See Broussard v. State ex rel. Office of State Bldgs., 113 So. 3d 175,
17879 (La. 2013).
2. Pitre v. La. Tech Univ., 673 So. 2d 585 (La. 1996).
3. Broussard, 113 So. 3d at 17880.
4. Id. at 179.
5. Id.
858 LOUISIANA LAW REVIEW [Vol. 74
erratically” for a period of several years.6 The built-up dust and
debris caused the elevators to stop in between floors, forming an
offset of space between the elevator floor and the building floors.7
The space would range from a few inches to a few feet.8 The
malfunctioning of the elevators and offset space did not go without
notice by the tenants of Wooddale Tower, and several tenants
expressed their concern of a future accident between 1999 and
2000.9 The State proposed plans to fix the elevators in response to
the complaints; however, the bidding was not completed until June
20, 2001.10
Prior to the accident, Broussard was an employee of UPS for 11
years, and he worked as a delivery-truck driver for 7 of those
years.11 Broussard made daily deliveries to Wooddale Tower and
was fully aware of the building’s elevator problems.12 On the day of
the accident, Broussard was attempting to deliver six boxes of
computer paper on a dolly, weighing 300 pounds, to the eighth
floor.13 One of the elevators was already open when Broussard
entered the lobby, and the elevator was elevated between one and a
half to three inches above the lobby floor.14 Two people had entered
the elevator prior to Broussard, and one of the occupants testified
that Broussard initially put the dolly in front of his body and tried to
push the dolly into the elevator.15 The misalignment of the elevator
and the ground floor prevented Broussard from being able to push
the dolly in, so he turned around, stepped backward into the
elevator, and attempted to pull the dolly into the elevator shaft.16 As
he was pulling the dolly backward, Broussard cleared the gap, but
he soon lost control of the dolly and was forcefully propelled back
into the elevator.17 As a result of the accident, Broussard suffered a
serious back injury, was diagnosed with a centrally-herniated,
6. Id.
7. Id.
8. Id.
9. Id. Employees of the Department of Social Services, one of the tenants of
Wooddale Tower, even sent a memorandum to their supervisor on July 10, 2000,
in which they expressed their concern that the elevators (1) would not stop in a
position level with the building floors, ca using employees to trip upon entering or
exiting the elevator shaft and (2) would drop between a few inches and feet when
people would enter or exit the elevator shaft. Id.
10. Id. at 179–80.
11. Id. at 180.
12. Id.
13. Id.
14. Id.
15. Id.
16. Id.
17. Id.

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