Bufkin v. Felipe's La., LLC - 2014-0288 ( La. 10/15/14), 171 So. 3d 851

Rule:

The burden for tort liability arising from a defect in a public sidewalk is generally with the municipality, not the adjoining landowner, unless the abutting property owner negligently caused a defect in the sidewalk. Notwithstanding, a pedestrian has a duty to see that which should be seen and is bound to observe his course to see if his pathway is clear. When evaluating the duty owed relative to a sidewalk condition, the facts and surrounding circumstances of each case control and the test applied requires the consideration of whether the sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Courts have adopted a risk-utility balancing test to determine whether such a condition is unreasonably dangerous, wherein the trier of fact balances the gravity and the risk of harm against the individual and societal utility and the cost and feasibility of repair. The risk-utility balancing test consists of four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature. 

Facts:

This personal injury action arose on December 2, 2011, at approximately 4:30 in the afternoon, when Royce Bufkin, Jr. was walking through the French Quarter from a jewelry store on Royal Street to a wine shop on Chartres Street, via Conti Street. Outside a building under renovation at 622 Conti Street, Mr. Bufkin encountered a construction barrier blocking the sidewalk, which directed pedestrians to use the sidewalk on the other side of the street. At this location, there was also a large construction dumpster placed on several adjacent on-street parking spaces by Shamrock Construction Co., Inc. ("Shamrock"), in connection with renovations it had contracted to make at 622 Conti Street. While attempting to cross the street by the dumpster, Mr. Bufkin was hit by a bicyclist and injured. At the time of the accident, Mr. Bufkin was walking toward the Mississippi River down Conti Street, which is a one-way street in the same direction. The bicyclist, who was working in the course and scope of his employment as a deliveryman for Felipe's Louisiana, LLC d/b/a Felipe's Taqueria Restaurant ("Felipe's"), was traveling in the wrong direction (away from the river) on Conti Street. Mr. Bufkin had stopped before crossing Conti, next to the dumpster, to allow two cars to pass (approaching from the direction of Lake Ponchartrain), but he failed to look to his right (in the direction of the river) before crossing the street, and he did not see the bicyclist approaching. Mr. Bufkin filed the instant suit on March 6, 2012, naming as defendants: Felipe's; Felipe's insurer, Maryland Casualty Company; Shamrock; Lewis C. Ramel, Jr., the alleged owner of 622 Conti Street; and "Any Unidentified Owners of 622 Conti Street." On November 20, 2013 Shamrock filed a motion for summary judgment, contending that it was not negligent and that the plaintiff would be unable to establish that it owed a duty, as alleged. Following a December 13, 2013 hearing on Shamrock's motion for summary judgment, the district court denied the motion for summary judgment, reasoning that whether Shamrock posted a warning on its sidewalk-closure sign sufficient to notify the plaintiff of the "existence of problems" was a question of fact that precluded summary judgment. The appellate court denied Shamrock's subsequent writ application.

Issue:

Did the building contractor breach any legal duty owed to a pedestrian crossing a street next to the contractor's dumpster, who was struck by an oncoming bicyclist?

Answer:

No

Conclusion:

The Court held that the district court erred in failing to grant summary judgment under La. Code Civ. Proc. Ann. art. 966 in favor of a building contractor because the condition complained of by the pedestrian was obvious and apparent and was reasonably safe for pedestrians exercising ordinary care and prudence; therefore, the contractor had no duty to extend additional warnings to pedestrians or to create a buffer zone around its dumpster.