In re

• Decision Date: 05 April 2013
• Docket Number: No. 2012–C–1238.,2012–C–1238.
• Citation: 113 So.3d 175
• Parties: Paul F. BROUSSARD and Andrea V. Broussard, individually and on behalf of his Minor Child, Aryn Paige Broussard v. STATE of Louisiana, through the OFFICE OF STATE BUILDINGS, under the Division of Administration.
• Court: Louisiana Supreme Court

113 So.3d 175

Paul F. BROUSSARD and Andrea V. Broussard, individually and on behalf of his Minor Child, Aryn Paige Broussard

v.STATE of Louisiana, through the OFFICE OF STATE BUILDINGS, under the Division of Administration.

No. 2012–C–1238.

Supreme Court of Louisiana.

April 5, 2013.

Pennington & Martinez, Baton Rouge, LA, Dennis Alan Pennington, Esq., Timothy James Martinez, Esq., Michael John Harig, Esq., Perry, Atkinson, Balhoff, Mengis & Burns, LLC, John W. Perry, Jr., Esq., Daniel Joseph Balhoff, Esq., Randi Lauren Simoneaux Ellis, Esq., for Applicant.

James D. Caldwell, Attorney General, Van A. Heard, Assistant Attorney General, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, Andrew Blanchfield, Special Assistant Attorney General, for Respondent.

KNOLL, Justice.^*

[2012-1238 (La. 1]In this personal injury case, we must determine whether a one and one-half to three inch misalignment between the floors of an elevator and a building's lobby created an unreasonable risk of harm as found by the jury, or whether the elevator's defective condition presented an open and obvious hazard as determined by the Court of Appeal.

Plaintiff, Paul Broussard, filed this suit against the State of Louisiana (“the State”) for damages he sustained from an accident caused by the misaligned elevator. Upon conclusion of a three-day trial, a jury returneda verdict in Broussard's favor, finding the offset between the elevator and lobby floors presented an unreasonable risk of harm. After reducing Broussard's damages in proportion to his assigned percentage of fault, the District Court entered a judgment consistent with the jury verdict in the amount of $985,732.56. The First Circuit Court of Appeal held the jury's factual determination that the elevator's defective condition presented an unreasonable risk of harm was manifestly erroneous because the defect was open and obvious, and reversed. We granted Broussard's writ to further examine, under the manifest error doctrine, whether a [2012-1238 (La. 2]defective condition is more properly considered an open and obvious hazard where no duty is owed, rather than an unreasonably dangerous condition where comparative fault is applicable. Broussard v. State ex Rel. Office of State Bldgs., 12–1238 (La.10/26/12), 99 So.3d 50.

After reviewing the applicable law and the record in its entirety, we find the jury's unreasonable risk of harm determination was not manifestly erroneous. The record contains a reasonable factual basis to support the jury's finding the misaligned elevator created an unreasonable risk of harm to Broussard and the State breached its duty to maintain its property in a reasonably safe condition by failing to remedy this defect or warn of its existence. Accordingly, we reverse the Court of Appeal and reinstate in its entirety the judgment of the District Court rendered in conformity with the jury's verdict.

FACTS AND PROCEDURAL HISTORY

The Wooddale Tower (“the Tower”) is a twelve-story, State-owned office building located in Baton Rouge. There are two elevators in the Tower's lobby. Sometime in 1998, the State contracted to have the Tower's roof repaired. This roofing project generated a large amount of dust and debris, which eventually settled and accumulated on the elevators' relay contacts, causing the elevators to operate erratically for several years. Most significantly, the Tower's elevators would often stop in a position uneven with floors of the building. These misalignments would create an offset between the elevator floor and the building floor ranging anywhere from a few inches to several feet.

Between 1999 and 2000, the State received multiple complaints from the Tower's tenants expressing their concern the malfunctioning elevators would eventually cause a serious accident. For instance, several employees from the Department of Social Services, an agency housed on the Tower's first floor, sent a memorandum to their supervisor on July 10, 2000, in which they detailed the [2012-1238 (La. 3]elevators' myriad problems. In their memo, the concerned tenants noted the elevators' frequent failure to stop in a position flush with the building's floors, stating this problem would often cause employees to trip when entering or exiting the elevators. The Department of Social Services employees also recalled incidents in which the elevators dropped anywhere from a few inches to several feet while employees were attempting to enter or exit them.¹ Although the State planned to modernize the elevators and, in response to the reported problems, advanced the project's start date from 2001 to 1999, it was unable to successfully bid out the repair contract until June 20, 2001, almost five months after Broussard's accident.

On January 23, 2001, Broussard, a United Parcel Service (“UPS”) delivery driver, sustained a serious back injury while maneuvering a loaded dolly into one of the Tower's misaligned elevators. Before this incident, Broussard worked for UPS eleven years, seven of which were as a delivery driver. During his tenure as a UPS driver, Broussard delivered parcels to the Tower on a daily basis. He was, therefore, familiar with the building and knew its elevators intermittently stopped at a level uneven with the building's floors.

On the morning of the accident, Broussard arrived at the Tower and delivered several overnight packages. After delivering these priority items, he returned to his truck and loaded a standard-issue UPS dolly with six boxes of computer paper weighing approximately three hundred pounds. Broussard's objective was to deliver this paper to the Tower's eighth floor. He then entered the lobby with his delivery, where one of the elevators stood open with its floor [2012-1238 (La. 4]elevated one and one-half to three inches above the lobby floor. Two individuals had entered the elevator before Broussard. One of them, Tammy Loupe, testified Broussard initially held the dolly in front of his body and attempted to push it onto the elevator. The offset between the elevator and lobby floors, however, impeded Broussard's momentum and prevented him from pushing the dolly forward. After his initial maneuver failed, Broussard turned around, stepped backwards into the elevator, and attempted to pull the dolly over the elevation. Broussard successfully pulled the dolly over the offset, but the inertia created by the pull caused him to lose control of the load and forcefully pushed him into the back wall of the elevator. The resulting impact caused Broussard to suffer a serious back injury, and he was eventually diagnosed with an L5–S1 centrally herniated, degenerative disc.

After the accident Broussard was unable to return to work for UPS. Because his doctors prohibited him from lifting over 70 pounds, Broussard was forced to obtain less strenuous, but lower-paying, employment. At the beginning of trial in August 2010, he was employed as a delivery driver for a dry cleaner.

Broussard subsequently sued the State of Louisiana through the Office of State Buildings for the damages he suffered as a result of the accident.² In his petition, Broussard alleged the State was negligent in failing to properly maintain and adequately repair a defective thing within its custody and care, thereby creating an unreasonable risk of harm. The case proceeded to trial and was tried to a jury on August 23–26, 2010. At the conclusion of trial, the jury returned a verdict in favor of Broussard, specifically finding (1) the offset between the [2012-1238 (La. 5]elevator and lobby floors created an unreasonable risk of harm, (2) the State had a reasonable opportunity to remedy the defect but failed to do so, and (3) the defect was the proximate cause of Broussard's injuries. The jury then found Broussard 38% at fault in causing the accident and apportioned the remaining 62% to the State. Ultimately, the jury awarded Broussard $1,589,890.23 in damages. After reducing these damages in proportion to Broussard's assigned percentage of fault, the District Court rendered a judgment consistent with the jury verdict in the amount of $985,732.56.

The Court of Appeal reversed, holding the jury's determination the offset created an unreasonable risk of harm was manifestly erroneous. Broussard v. State ex. rel. Office of State Bldgs., 11–0479, p. 6 (La.App. 1 Cir. 3/30/12), 2012 WL 1079182 (unpublished). The Court of Appeal, applying the four-prong, risk-utility balancing test articulated by this Court in Pryor v. Iberia Parish School Board, 10–1683, p. 4 (La.3/15/11), 60 So.3d 594, 597 (per curiam), concluded the elevator's social utility outweighed the risk created by its defective, yet readily apparent, condition. According to the Court of Appeal, a proper risk-utility balancing weighed against finding the offset created an unreasonable risk of harm. First, the Tower's elevators serve an extremely useful, perhaps indispensable, societal function. Second, the defect was open and obvious and thus did not present a serious risk of harm; further, Broussard admitted he was probably aware of the offset when he pulled the dolly into the elevator. Third, Broussard could have avoided injuring himself by either dividing the boxes of paper into multiple, lighter loads or waiting for another elevator. Finally, there was no record of the elevator's defective condition ever causing any injuries in the past. The Court of Appeal ultimately found no reasonable basis existed to support the jury's verdict, concluding the jury was manifestly erroneous in finding an unreasonable risk of harm.

[2012-1238 (La. 6]We note Judge Whipple concurred, writing separately to express her concern that denying a victim's recovery based on whether a defective condition should be obvious to the victim runs “perilously close to resurrecting the doctrine of assumption of the risk.” Broussard, 11–0479 at p. 7 (Whipple, J., concurring). However, in lieu of this Court's and the First Circuit's recent jurisprudence focusing...