In Martin v. Boyd Racing, LLC, et al (Martin v. Boyd Racing, L.L.C., et al, U.S. Fifth Circuit Court of Appeals, March 15, 2017, 2017 WL 1031283), the U.S. Fifth Circuit recently reaffirmed that a district court can decide on Motion for Summary Judgment whether a condition presents an “unreasonable risk of harm,” as provided in Louisiana’s Merchant Liability Act. La. R.S. § 9:2800.6(A).
Plaintiff, Leslie Martin filed suit against Boyd Racing, LLC and Boyd Gaming Corp. (“Boyd”) after she allegedly slipped and fell on algae that accumulated on the ground of Boyd’s parking lot. Martin admitted she was not paying attention and would have seen the algae if she were. After removing the case from the 14th JDC to the Western District of Louisiana, Boyd sought summary judgment on the grounds that the algae was an “open and obvious condition.” Generally, a merchant does not have a duty to protect against conditions that are “open and obvious” (see Louisiana Merchant Liability Act). The district court (Judge Milandi of WDLA) found that uncontroverted evidence established that the algae was “readily visible” and granted Boyd’s summary judgment.
Martin appealed to the U.S. Fifth Circuit Court of Appeals, arguing the lower court usurped the role of the fact-finder when it found the algae that accumulated on the ground represented an open and obvious condition. Martin relied on language from the Louisiana Supreme Court’s decision in Broussard v. State ex. rel. Office of State Buildings. There, the Court noted that whether a condition presents an unreasonable risk of harm is a mixed question of law and fact properly reserved for the fact finder.
The Louisiana Supreme Court found Martin misunderstood Broussard. The Louisiana Supreme Court referenced language in Broussard wherein the Court recognized that a Judge can decide a condition does not present an unreasonable risk of harm as a matter of law. The Court also cited subsequent decisions reaffirming this principle/action. These decisions make it clear that a court can decide on summary judgment whether a condition created an unreasonable risk of harm.