NEW ORLEANS (Legal Newsline) - A Louisiana appeals court ruled in favor of a woman who tripped outside a bar during Mardi Gras, saying a jury must decide whether the yellow-painted curb she failed to negotiate was an “open and obvious” hazard.
Colleen H. Daigrepont and her boyfriend bought a couple of beers at the Southside Café in Slidell, La. in February 2017 planning to take them outside to watch a Mardi Gras parade, as locals are wont to do in Louisiana. The couple walked across a patio area and Daigrepont tripped on a curb separating the patio from the parking lot, which was several inches lower. The woman claimed physical injuries from the fall.
A lower court dismissed her lawsuit, citing Louisiana law that doesn’t require merchants to protect customers against hazards that are open and obvious for anyone to detect. The curb was painted yellow and Daigrepont had visited the bar at least 10 times before her fall, Southside Café argued.
Louisiana’s First Circuit Court of Appeal disagreed on Oct. 14. In a brief, unpublished opinion joined by three other judges, Judge Wayne Ray Chutz ruled that a reasonable person might disagree the curb was obvious, given the effects of sunlight that day. While the outer surface of the curb was painted yellow, the judge ruled, that may not have been obvious from Daigrepont’s point of view as she left the bar.
Bright sunlight had reduced the difference in shading between the patio and the parking lot, the plaintiff claimed, while an awning shadow left the curb “totally camouflaged.”
The bar argued the curb was a “completely normal, defect free patio curb” and the plaintiff should have noticed it even in the shade of the awning, especially since she had successfully navigated the barrier at least 10 times before. Judge Chutz ruled otherwise, however, writing that “while some may disagree, a reasonable trier of fact could conclude the colors of the patio and the parking lot blended together when in shade so that the change in elevation was not open and obvious to everyone.”
Judge Mitch Theriot, in a handwritten dissent, said he “finds the condition is open and obvious.”