risk-utility test in Louisiana

1994Under Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 115 (La.1986), a product can be found unreasonably dangerous in design if: (1) A reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product.... (2) Although balancing under the risk-utility test leads to the conclusion that the product is not unreasonably dangerous per se, alternative products were available to serve the same needs or desires with less risk of harm; or, (3) Although the utility of the product outweighs its danger-in-fact, there was a feasible way to desig

1993Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986); McCoy v. Otis Elevator Co., Inc., 546 So.2d 229 (La.App. 2d Cir.1989), writ denied, 551 So.2d 636 (La.1989). [1] A product may be unreasonably dangerous due to its design because: (1) a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the usefulness of the product; (2) although balancing under the risk-utility test leads to the conclusion that the product is not unreasonably dangerous per se, alternative products were available to serve the same needs and uses with less risk of harm t

2005In Boyer v. Seal, [ 553 So.2d 827 (La.1989)], the plaintiff was injured when a house cat brushed against her leg and caused her to fall.

1992In Crawford, Torts, Developments in the Law, 1989-1990, 51 La.L.Rev. 427 (1990), the author stated that in Boyer v. Seal, supra, the Louisiana Supreme Court "shed further welcome enlightenment on the criteria for unreasonableness." The author pointed out that Boyer specified that the determination of unreasonable risk should be governed by the risk-utility test set forth in Entrevia v. Hood, supra. *490 In discussing the unreasonable risk of harm criteria in Entrevia v. Hood, supra, the court stated that, in relation to strict liability under the Civil Code, the activities of man for which he

2021See, e.g., Hutchinson v. Knights of Columbus, Council No. 5747, 03–1533, p. 9 (La.2/20/04), 866 So.2d 228, 234 .

2016See, e.g., Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 9 (La.2/20/04), 866 So.2d 228, 234 .

2016Bufkin v. Felipe’s La., LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856 ; Dauzat v. Curnest Guillot Logging Inc., 08-0528 (La. 12/02/08), 995 So.2d 1184, 1186-87 (per curiam).

2015Dauzat v. Curnest Guillot Logging Inc., 08-0528 (La.12/02/08), 995 So.2d 1184, 1186 (per curiam).

2022Office of State Buildings, 12-1238 (La. 04/05/13), 113 So.3d 175, 184 . 1 Defendant’s custody or garde over the parking lot and curb is not contested. 21-CA-322 4 The second prong of the risk-utility inquiry focuses on whether the dangerous or defective condition is obvious and apparent.

2021There, we noted that the Supreme Court in Broussard v. State of Louisiana, Office of State Bldgs., 12–1238 (La. 4/5/13), 113 So.3d 175 ,9 indicated that “the issue of whether a condition constitutes an open and obvious hazard is properly raised in connection with the risk-utility analysis employed in deciding whether an owner of a thing is responsible for injuries caused by a hazardous condition or defective component.” Scarberry, 13–0214 at p. 8, 136 So.3d at 203.10 Continuing, we noted: Under Louisiana law, a defendant generally does not have a duty to protect against an open and obvious haz

1996See Smith v. American Indemnity Insurance Co., 598 So.2d 486 (La.App. 2d Cir.), writ denied, 600 So.2d 685 (La.1992).

1996See Boyer v. Seal, supra; Smith, supra. Figuratively speaking, the product of the likelihood (or risk) of injury from being thrown from a horse multiplied by the gravity of the harm suffered by the plaintiff is quite low when compared to the social and economic utility of horses in our society.

2016The Broussard case, however, left the jurisprudence with the following five “paradoxical principles”: lul) Determining whether a duty is owed is a question law to be decided by the Court; 2) No duty is owed if a defect is open and obvious; 3) To determine whether a defect is open and obvious, one must apply the second factor of the risk-utility test; 4) The risk-utility test is used to determine whether a defect is unreasonably dangerous; 5) Determining whether a defect is unreasonably, dangerous goes to the factual question of whether a duty was breached, Edmison v. Caesars Entm’t Co., Inc.,

2016The Broussard case, however, left the jurisprudence with the following five “paradoxical principles”: lul) Determining whether a duty is owed is a question law to be decided by the Court; 2) No duty is owed if a defect is open and obvious; 3) To determine whether a defect is open and obvious, one must apply the second factor of the risk-utility test; 4) The risk-utility test is used to determine whether a defect is unreasonably dangerous; 5) Determining whether a defect is unreasonably, dangerous goes to the factual question of whether a duty was breached, Edmison v. Caesars Entm’t Co., Inc.,

2016See also Ludlow v. Crescent City Connection Marine Div., 15-1808 (La. 11/16/15), 184 So.3d 21 , reh’g denied, 15-1808 (La. 1/15/16), 184 So.3d 702 (finding that ”[u]nder the facts of this case, relator owed no duty to plaintiff, as any danger was obvious and apparent to anyone who might potentially encounter it” and citing Allen, supra; and Bufkin, supra). .

2016See also Ludlow v. Crescent City Connection Marine Div., 15-1808 (La. 11/16/15), 184 So.3d 21 , reh’g denied, 15-1808 (La. 1/15/16), 184 So.3d 702 (finding that ”[u]nder the facts of this case, relator owed no duty to plaintiff, as any danger was obvious and apparent to anyone who might potentially encounter it” and citing Allen, supra; and Bufkin, supra). .

2001We have cited with agreement Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 184 (5th Cir.1990), cert. denied, 510 U.S. 859 , 114 S.Ct. 171 , 126 L.Ed.2d 131 (1993), wherein it was noted that "there may be cases in which the judge or the jury, by relying on background knowledge and `common sense,' can `fill in the gaps' in the plaintiffs case, estimating the extent of the risk avoided, the costs of implementing the proposed design change, or the adverse effects of the design modification on the utility of the machine." McKey v. General Motors Corporation, 96-0755, p. 8, n.2 (La.

1996See Smith v. American Indemnity Insurance Co., 598 So.2d 486 (La.App. 2d Cir.), writ denied, 600 So.2d 685 (La.1992).

1994Id. at 835 ; Smith v. Roan, 605 So.2d 10, 11 (La.App. 2d Cir.1992).

1994Co., 599 So.2d 791, 806 (La.App. 1st Cir.), writ denied, 604 So.2d 1313 (La.1992). [3] Halphen adopted the risk-utility test, instead of the consumer expectation test, to determine whether a product is unreasonably dangerous per se.