Bufkin v. Felipe’s – Pedestrian Injury, Premises Liability and Open-Obvious Doctrine

A pedestrian injured by a bicyclist while crossing a bustling street as he reached a private construction zone won’t be entitled to seek relief from the construction company, even though the company’s large trash bin obstructed the view of those traveling the road.

Bufkin v. Felipe’s et al., was a complex injury case that involved consideration not just of relevant traffic laws, but also duties owed under premises liability law.

Specifically, the issue was whether the trash bin should be considered an inherent hazard and if the hazard was open and obvious.

Generally, the mere fact that someone was injured doesn’t entitle that person to pursue or collect monetary damages.

Our Montgomery pedestrian injury lawyers know every case is going to present its own unique set of challenges. When we take a case, we conduct a thorough examination of every element to determine possible defendants and legal theories, and carefully weigh which are most likely to succeed.

This case started with a plaintiff who had just left a jewelry store and was on his way to a wine shop down the street. He came upon a portion of the sidewalk that was in front of a building under renovation. A construction barrier blocked the sidewalk, and directed pedestrians to use the sidewalk on the opposite side of the one-way street. At this same spot, there was also a large metal trash bin placed across several adjacent street parking spaces. The bin belonged to the construction company.

As the pedestrian prepared to cross the one-way street, he stood by the trash bin and allowed two vehicles to pass. However, he did not look right before crossing (this being a one-way street). Thus, he did not see the bicyclist who was traveling in the wrong direction directly into his path. The bicyclist, because of the trash bin, did not see the pedestrian until seconds before impact.

The bicyclist was a food delivery person who was acting within the scope and course of his employment.

The impact of the crash left plaintiff with serious injuries.

Plaintiff filed a lawsuit against the restaurant that employed the cyclist, the restaurant’s insurer, the construction company and the owner of the building under construction.

The construction company sought summary judgment, contending it was not negligent because plaintiff failed to assert it owed a duty to him. The district court denied this motion, reasoning it was a material question of fact whether the construction company’s sidewalk closure sign was sufficient notice of possible danger relating to the trash bin and its obstruction of view.

Plaintiff maintained the company was liable for injuries because it had negligently created an unreasonable risk of harm by creating a blind-spot that prevented people from fully seeing oncoming traffic as they crossed the street. He asserted the sign directing pedestrians to the other side of the street should have noted the blind spot created by the bin.

Defendant construction firm sought review from the state appellate court, which was denied, and then from the Louisiana Supreme Court. That request was granted. The earlier denial of summary judgment was overturned.

The high court reasoned the condition created by the presence of the clearly-visible and marked construction bin adjacent to a one-way street was obvious, apparent and didn’t create an reasonable risk of injury.

The construction firm did effectively assume custody of the sidewalk and nearby parking spaces by blocking them. However, a pedestrian has a duty to “see that which should be seen and bound to observe his course to see if the pathway is clear.”

Here, whatever hazard was presented by the trash bin was open and obvious to everyone who potentially encountered it, the court found. Therefore, defendant construction company won’t be held liable.

However, there is still a strong chance, based on the facts presented, that the restaurant company and its insurer will be found liable, if they don’t reach a settlement first.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:
BUFKIN, JR. v. FELIPE’S LOUISIANA, LLC, ET AL., Oct. 15, 2014, Louisiana Supreme Court
More Blog Entries:
Bruns v. City of Centralia – Distraction in Premises Liability, Oct. 10, 2014, Montgomery Premises Liability Lawyer Blog

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