Not up to Code: Owner Liability for Unreasonably Dangerous Building Conditions under Louisiana’s Civil Code

Ever wonder about what legal standard governs liability for dilapidated buildings…or those just not quite up to code? This was the issue before the Louisiana Court of Appeal for the Second Circuit in the case Nugent v. Car Town of Monroe, Inc., 50,910 (La. App. 2 Cir. 9/28/16); 206 So. 3d 369.

The defendant, Car Town of Monroe, Inc. (“Car Town”), operates a used car business on a site originally built about 50 years ago and designed as a service station. At the front door of a building on the lot, a slab sits 7.5″ above the pavement. Since Car Town first took over the site in 1987, nobody had ever fallen or stumbled over the step at the front door.

On November 1, 2010, plaintiff Ms. Nugent came to Car Town in the (dark) early morning hours. She stepped over the slab on the way in but, forgetting the step, tripped over the 7.5″ gap on the way out and injured herself. She filed a personal injury lawsuit in November 2011. After trial in May 2014, a jury found that the drop-off at Car Town’s door did not constitute an “unreasonably dangerous condition.” The jury was polled; the vote was 9-3. The trial court granted Ms. Nugent’s request for a new trial, chiefly on the grounds that Car Town had actual notice of the longstanding, defective condition of the doorstep. The Louisiana Second Circuit exercised supervisory review over the trial court’s decision to grant a new trial.

The Second Circuit opened its analysis by discussing the Louisiana Civil Code articles governing liability of an owner for damages resulting from a defective building: Articles 2317.1 and 2322. Louisiana jurisprudence has consistently interpreted these articles to require that the ruinous building or its defective component part “create an unreasonable risk of harm.” See Broussard v. State, 2012-1238 (La. 4/5/13); 113 So. 3d 175; Entrevia v. Hood, 427 So. 2d 1146 (La.1983). The Second Circuit confirmed that “unreasonable harm” is determined by a risk-utility analysis, with consideration of (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 its social utility or whether it is dangerous by nature (internal citations omitted). The court opined that “[t]he mere fact that an accident occurred because of some vice or defect does not elevate the condition of the thing to that of an unreasonably dangerous defect.” (Internal citations omitted.) Thus, in Nugent, the Second Circuit found that the district court had abused its discretion in granting a new trial – – effectively second-guessing the jury’s verdict that the doorstep did not pose an unreasonable risk of harm.

Perhaps more interestingly, the Second Circuit opinion reminds that structures which “predate the promulgation of building codes are ‘grandfathered in,’ meaning that existing structures not in compliance with new codes are not required to comply with the new codes, unless there is a major renovation.” Many municipalities allow the continued use of nonconforming structures to avoid unfairness to present-day owners. Civil Code Article 2322 refers to a vice or defect in the building’s original condition, which, according to the Second Circuit, means that this Article does not apply to conditions resulting from “ruin” or “neglect of repair.” This Article “does not impose liability just because years after construction, a building code becomes more stringent.” So even though the Nugent defendant’s doorstep was not compliant with current safety codes, the defendant could not be liable absent a finding that the step posed an unreasonable risk of harm.