Charlene Blalock v. Shelter General Insurance Company and Frank M. Flanagan ( 2023 )

 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
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