Impact of Supreme Court's Recent "Open and Obvious" Ruling not Obvious

The liability of a premises owner for third-party criminal acts has been the subject of many decisions issued by the Louisiana Supreme Court. But recently, the Court clarified how to analyze this issue in the context of summary judgment. In Campbell v. Orient-Express Hotels Louisiana, Inc. (Windsor Court), the Supreme Court reversed the court of appeal and held that Windsor Court was not liable for a robbery that occurred in its courtyard.

The factual background is simple: Campbell was a frequent guest at the Windsor Court. He decided to approach a vehicle near the entrance to the courtyard when he pulled a “substantial amount of cash” to show the female occupants in the vehicle. He placed the money back in his pocket and talked with them for one minute and forty-six seconds. When he pulled the cash from his pocket a second time, one of the occupants grabbed the cash and the vehicle sped away dragging him with it. Campbell then sued the Windsor Court alleging negligence, strict liability, failure to warn, failure to ensure the safety of its guests, etc.

The importance of this decision is found in how the Court analyzed the case to reach its conclusion that summary judgment was proper: The Court noted that it was not modifying prior duty/risk analysis but was clarifying how the analysis is to be conducted—The issues of “duty” and “scope of duty” are separate inquiries that require separate analysis.

In Campbell, the Court acknowledged that “duty” is a question of law for the court. It then concluded that “(w)hether a particular risk falls within the scope of that duty, by contrast, ‘is fact sensitive and ultimately turns on a question of policy as to whether the particular risk falls within the scope of that duty.’” However, the court continued, “‘(t)he determination of legal cause/scope of the duty involves a purely legal question.’” The Court conducted an historical analysis noting that prior decisions had “merged the concept of duty and scope of duty into a single consideration.”

On the threshold question of duty, the Court acknowledged that in the context of third-party criminal activity, Windsor Court, as an innkeeper, owed a duty to take reasonable precautions to protect its patrons from criminal acts of third parties. Having found this duty, the Court then concluded that “Campbell cannot meet the ‘scope of the duty’ element of his claim.” In other words, “the scope of the duty owed by the Windsor Court did not encompass the risk of the particular harm and Injury Mr. Campbell suffered.”

Here the court asked whether this particular risk and injury were “foreseeable.” The Court examined multiple factors to find that the robbery was not foreseeable, but the Court further noted “perhaps even more important to our decision is the manner in which the robbery occurred.” Campbell was not unexpectedly accosted, but his own actions placed him in peril. As such, the Court found no “ease of association” between Windsor Court’s duty to take reasonable precautions to protect its guests and the risk that the guest would voluntarily approach an unknown vehicle and flash a sizable pile of cash.

Justice Crain concurred in the opinion and noted that “scope of duty can be resolved on summary judgment if reasonable persons could not disagree that the manner of the injury is either within or beyond the scope of the duty.” Justice Crain also noted that the manner of injury must be analyzed in the context of “foreseeability” from the perspective of the premises owner and have an “ease of association” between the duty and the manner of injury—this analysis is necessary to “avoid making a defendant the insurer of all persons against all harms.” Thus, he agreed with the majority that Campbell was unable to establish the scope of duty element.

Reference:

Campbell v. Orient-Express Hotels Louisiana, Inc., 2024-00840 (La. 3/21/25), 403 So. 3d 573.

Louisiana’s “slip and fall” statute La. R.S. 9:2800.6 was enacted in response to an elevated burden of proof imposed upon retailers. To recover, a patron must prove both the existence of an unreasonably dangerous condition and that the merchant created or possessed actual or constructive knowledge of the condition. Two recent Louisiana decisions demonstrate that the plaintiff’s burden to show knowledge is often difficult to meet.

In Fountain v. Wal-Mart Stores, Inc., 19-669 (La. App. 3 Cir. 3/18/20), 2020 WL 1307417, Fountain entered the store while it was raining. After shopping for 30 to 40 minutes, he visited the Garden Center and fell in a puddle of water he estimated as 8 inches by a foot and a half. There was no direct evidence Wal-Mart was aware of the alleged defect. Without actual knowledge, Fountain possessed the burden to demonstrate “constructive notice.” To prove constructive notice, the plaintiff must come forward with “positive evidence showing that the damage-causing condition existed for some period to time, and that such time was sufficient to place the merchant defendant on notice of its existence.” Under case facts, the trial court determined that Fountain had not demonstrated this “temporal” element and dismissed the case on motion practice. The dismissal was upheld by the Louisiana Third Circuit.

In Opposition to the Motion for Summary Judgment, Fountain made a three-fold argument. First, he alleged that a Wal-Mart employee told him that the water on the floor came from a lady who shook a broken umbrella in the area. The court held that Fountain’s self-serving testimony and reliance upon a hearsay statement was insufficient to establish notice.

Next, Fountain alleged that a manager’s testimony that a large amount of water was found in the general area showed that Wal-Mart “knew or should have known.” Nevertheless, there was no evidence as to how long the water had existed on the floor.

Finally, Fountain cited to video surveillance showing that numerous persons could have tracked water into the area. Distinguishing cases where employees had worked in the precise area of the hazard, the Fountain court stated “our de novo review of the record reveals Mr. Fountain failed to present evidence as to length of time the puddle was on the floor prior to the accident. Therefore, he did not carry his burden of proving that Wal-Mart had constructive knowledge of the condition.”

Similarly, in Bryant v. Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir. 3/17/20), 2020 WL 1270963, summary judgment was upheld where the plaintiff lacked positive evidence of how long the condition (a few spots of water) existed prior to the accident. The plaintiff argued that an employee who used the restroom approximately five minutes before was the most likely cause of the alleged hazard. However, this argument was rejected as “mere speculation.”

In these cases, whether an unreasonably dangerous condition is present is a critical issue. However, as seen in Bryant and Fountain, how long the condition existed is sometimes just important. In many cases, time is not on the plaintiff’s side.

Tori works toward efficient, cost-effective resolution strategies, whether in or out of the courtroom. When she is not in the office or in a courtroom, she can be found with her husband and two kids at ballfields, ballet recitals or her local church.

Sometimes in law, the facts of a case may threaten to eclipse the legal issue. However, Louisiana law instructs the fact finder to see through the facts, and their sometimes tragic nature, and apply the law as written. As Aristotle once wisely said, “The Law is reason free from passion.”

In Kazan, et. al. v. Red Lion Hotels Corporation, et. al., 2021-CC-01820 (La. 6/29/22), the Louisiana Supreme Court recently ruled on a case with tragic facts, and its ruling provides an example of Aristotle’s description of law in action. In Kazan, a female patron was in the parking lot of a motel when a male patron approached her and used Kazan’s vehicle to abduct her from the premises. The car was later found submerged in a lake, and Kazan’s body was recovered from the water. The family filed a tort suit against several parties, including the motel’s owner and its insurer, the Great Lakes Insurance Company SE.

Great Lakes filed a motion for summary judgment and asked to be dismissed on grounds that coverage for the event was excluded from its policy. Specifically, the insurer argued that bodily injury caused by an “assault,” “battery,” or “physical altercation” was excluded under the policy’s terms. Great Lakes further argued that the kidnapping and ultimate death of the patron was excluded under the policy as bodily injury caused by an assault, battery, or physical altercation. The Louisiana Supreme Court agreed and reversed the decision of the trial and appellate courts.

Under Louisiana law, “[a]n insurance policy is a contract between the parties and should be construed using the general rules for the interpretation of contracts.” Id. at p. 3. “When the words of an insurance policy are clear and explicit and do not lead to absurd consequences, courts must enforce the language as written.” Id. at p. 3. “Courts lack authority to alter the terms of an insurance policy under the guise of interpretation and should not create an ambiguity where none exists.” Id. at p. 3.

With these basic rules in mind, the Court carefully reviewed the wording of the exclusion in the Great Lakes policy which stated as follows: “This insurance does not apply to ‘bodily injury,’ ‘property damage,’ or ‘personal advertising injury’ arising out of an ‘assault,’ ‘battery,’ or ‘physical altercation.’” “Physical altercation” was defined in the policy as “a dispute between individual [sic] in which one or more persons sustain bodily injury arising out of the dispute.” Citing Merriam-Webster’s dictionary, the Court defined the term “dispute” as “verbal controversy” or “quarrel.”

Based upon the evidence in the case, the Court found the female patron was involved in a “dispute” with her male attacker, and ultimately sustained bodily injury as a result of the dispute. Therefore, the patron was injured in a physical altercation, as defined under the specific terms of the Policy, and coverage for the event was excluded under the policy’s terms.

The Court noted as follows: “The facts of this case are undoubtedly tragic. Nonetheless, absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability by imposing reasonable conditions upon the policy obligations they contractually assume. That is what Great Lakes did in the insurance policy at issue here.” Despite the tragic facts presented in the case, in so holding, it appears the court agreed with Aristotle’s belief that the Law is Reason Free from Passion.