IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30674

Summary Calendar

ROGER D. BUTLER, 

 Plaintiff - Appellant

v.

INTERNATIONAL PAPER COMPANY, doing business as Temple-Inland; 

ALVEY J. WITMER, III, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana 

USDC No. 2:14-CV-476

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Appellant Roger D. Butler filed a negligence action against Appellees in 

Louisiana state court. After removing to federal court, Appellees moved for 

summary judgment. The district court granted this motion. Butler appeals 

the district court’s decision, and we AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 14, 2016

Lyle W. Cayce

Clerk

 Case: 15-30674 Document: 00513343056 Page: 1 Date Filed: 01/14/2016
No. 15-30674

2

I.

On February 27, 2013, Roger D. Butler was working at a mill in 

Dequincy, Louisiana. Around 9:30 PM, he received a message from his 

supervisor instructing him to clear a board jam from a chipping machine. 

While clearing this board jam, he allegedly slipped and fell down a set of stairs. 

Butler alleges that the fall was caused by the presence of wood chips and other 

debris produced by the chipping machine on the stairs. Butler suffered serious 

injuries as a result of the fall. He and his wife subsequently filed a negligence 

action against Appellees in state court. After removing to federal court, 

Appellees filed a motion for summary judgment. They argued that they owed 

no duty to Butler because the presence of wood chips on the stairs was an “open 

and obvious” hazard. The district court agreed and granted summary 

judgment in favor of Appellees. The court concluded that Butler had not a 

created a genuine dispute of fact as to the duty element of his claim because 

“[t]he presence of debris on the stairs was open and obvious to all who would 

have encountered it.” Butler timely appealed to this Court.

II.

“We review summary judgment de novo, using the same standards as 

the district court. Summary judgment is proper when ‘there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.’ We view the evidence and all justifiable inferences in the light 

most favorable of the nonmoving party.”1

III.

The parties agree that Louisiana law governs this diversity action.2 

Under Louisiana law, “[t]he owner of a building is not responsible for all 

 

1 Wiltz v. Bayer CropScience, Ltd. P’ship, 645 F.3d 690, 694-95 (5th Cir. 2011)

(citations omitted) (quoting Fed. R. Civ. P. 56(a)).

2 See id. at 695.

 Case: 15-30674 Document: 00513343056 Page: 2 Date Filed: 01/14/2016
No. 15-30674

3

injuries resulting from any risk posed by the building. Rather, the owner is 

only responsible for those injuries caused by a ruinous condition or defective 

component part that presents an unreasonable risk of harm to others.”3 The 

Louisiana Supreme Court has “recognized that defendants generally have no 

duty to protect against an open and obvious hazard. If the facts of a particular 

case show that the complained-of condition should be obvious to all, the 

condition may not be unreasonably dangerous, and the defendant may owe no 

duty to the plaintiff.”4 Butler alleges that the district court committed two 

errors in applying this doctrine: (1) the court improperly concluded that the 

wood chips were open and obvious to all on the basis of Butler’s knowledge

alone; and (2) the court failed to apply the risk-utility balancing test. We 

address each contention in turn.

A.

In order for a defect to be “open and obvious,” it “should be apparent to 

all who encounter the dangerous condition,” not just the plaintiff.5 The 

Louisiana Supreme Court has cautioned that this principle is “not a hollow 

maxim.” To the contrary, “it serves an invaluable function, preventing 

concepts such as assumption of the risk from infiltrating our jurisprudence.”6 

Butler argues that the district court contravened this rule by granting

summary judgment “despite there being no evidence whatsoever that the wood 

chips on the stairs were a condition that was open and obvious” to anyone save 

himself. He points to Pitre v. Louisiana Tech University—where several 

 

3 Broussard v. State ex rel. Office of State Bldgs., 113 So. 3d 175, 183 (La. 2013) 

(citation omitted).

4 Eisenhardt v. Snook, 8 So. 3d 541, 544 (La. 2009) (per curiam).

5 Broussard, 113 So. 3d at 188; see also Bufkin v. Felipe’s La., LLC, 171 So. 3d 851,

856 (La. 2014) (“In order for an alleged hazard to be considered obvious and apparent, this 

court has consistently stated the hazard should be one that is open and obvious to everyone 

who may potentially encounter it.”).

6 Broussard, 113 So. 3d at 188.

 Case: 15-30674 Document: 00513343056 Page: 3 Date Filed: 01/14/2016
No. 15-30674

4

witnesses testified that they were aware of the alleged defect7—as establishing 

the type of evidence that is needed to demonstrate that a defect is “open and 

obvious” to all.

We disagree with this interpretation of Pitre. Though the evidence in 

Pitre that others were aware of the alleged defect was sufficient to establish 

that it was “open and obvious,” this evidence was not necessary to establish 

that the alleged defect was “open and obvious.” As Appellees note, the 

Louisiana Supreme Court has relied upon the plaintiff’s testimony or 

photographs of the scene to establish that a condition is “open and obvious” in 

several different cases.8 In this case, Butler testified that he was aware of the 

wood chips and other debris on the stairs. Though this evidence of knowledge 

is not dispositive, it leads to the inference that the wood chips would have been 

“open and obvious” to others using the stairs. Appellees also offered a video of 

the incident that provides a clear view of the debris on the stairs. Butler 

contends that this video does not resolve whether the wood chips are “open and 

obvious”—and that we should allow a jury to decide this question. 

Nevertheless, we have reviewed the video and agree with Appellees that it 

establishes that the wood chips were so numerous and prominent that no 

reasonable juror could conclude that they were not “open and obvious.” With 

due regard for the role of the jury, we thus conclude that Appellees did not need 

to offer any additional evidence.

B.

Butler’s second argument relies on the Louisiana Supreme Court’s 

recent decision in Broussard v. State ex rel. Office of State Buildings.9 In 

 

7 See 673 So. 2d 585, 592 (La. 1996).

8 See Allen v. Lockwood, 156 So. 3d 650, 653 (La. 2015) (per curiam); Bufkin, 171 So. 

3d at 856; Dauzat v. Curnest Guillot Logging Inc., 995 So. 2d 1184, 1187 (La. 2008) (per 

curiam).

9 113 So. 3d 175.

 Case: 15-30674 Document: 00513343056 Page: 4 Date Filed: 01/14/2016
No. 15-30674

5

Broussard, the Louisiana Supreme Court observed that “whether a defect 

presents an unreasonable risk of harm is a matter wed to the facts and must 

be determined in light of facts and circumstances of each particular case.”10 As 

a result, the court explained it has adopted a four-factor “risk-utility balancing 

test” in order “[t]o aid the trier-of-fact in making this unscientific, factual 

determination.”11 The fact-finder should consider whether the alleged defect 

is “open and obvious” as part of this test, but only as it relates to one of these 

four factors.12 Butler urges that the district court ignored this legal framework 

and granted summary judgment solely on the basis that the alleged defect is 

“obvious and obvious.” He argues that we should, at the very least, remand 

and order the application of the risk-utility balancing test.

The Louisiana Supreme Court, however, recently clarified that the 

application of the risk-utility test is not necessary at the summary judgment 

stage. In Allen v. Lockwood, the Louisiana Supreme Court granted review in 

order “to provide much needed guidance to both the practitioners and the 

Judiciary of this State on the proper interpretation and application of our 

holding in Broussard.”13 Reviewing the proceedings below, the court explained

that the lower court had failed to appreciate that “Broussard was a three-day 

jury trial involving a fact-intensive determination as to whether the defect 

posed an unreasonable risk of harm or constituted an open and obvious defect.” 

The court clarified that—given this context—its “comments under [the] 

discussion” of the risk-utility balancing test in Broussard “clearly pertained to 

cases that were tried either by judge or jury.”14 Turning back to the case under 

review, the court then concluded that summary judgment should be granted 

 

10 Id. at 183 (internal quotation marks omitted).

11 Id. at 184.

12 See id. at 186-93.

13 156 So. 3d at 651. 

14 Id. at 652.

 Case: 15-30674 Document: 00513343056 Page: 5 Date Filed: 01/14/2016
No. 15-30674

6

for the defendants because the “complained-of condition . . . was obvious and 

apparent to anyone who may potentially encounter it.”15 The district court did 

not err by following this guidance.16

But even assuming the district court should have applied the risk-utility 

balancing test, there was no reversible error.17 The risk utility-balancing test

requires “consideration 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 its social 

utility or whether it is dangerous by nature.”18 Butler argues that the utility 

of the complained-of condition, the cost of preventing the harm, and the nature 

of the plaintiff’s activities all weigh in his favor. Nevertheless, even if this is 

true, the second factor is dispositive in this case. “[W]hen the risk is open and 

obvious to everyone, the probability of injury is low and the thing’s utility may 

outweigh the risks caused by its defective condition.”19 The video submitted 

by Appellees establishes that the wood chips were “open and obvious” and 

posed a very low risk of injury.20 Accordingly, the utility of the chipping 

 

15 See id. at 653.

16 See Rodriquez v. Dolgencorp, LLC, 152 So. 3d 871, 872 (La. 2014) (per curiam) 

(concluding that summary judgment was appropriate solely because the “risk of harm” was 

“open and obvious”). 17 See Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014) (“Under our precedent, we 

may affirm on any ground supported by the record, including one not reached by the district 

court.” (internal quotation marks omitted)).

18 Broussard v. State ex rel. Office of State Bldgs., 113 So. 3d 175, 184 (La. 2013). 19 Id.; see also Caserta v. Wal-Mart Stores, Inc., 90 So. 3d 1042, 1043 (La. 2012) (per 

curiam) (“Based on these undisputed facts, we believe any risk from attempting to remove 

the frozen lug nut should have been obvious to plaintiff, and could have been avoided through 

the use of ordinary care.”). 20 See Eisenhardt v. Snook, 8 So. 3d 541, 545 (La. 2009) (per curiam) (concluding that 

summary judgment was appropriate in case where plaintiff slipped and fell down stairs 

because the slippery “condition of the steps should have been open and obvious”).

 Case: 15-30674 Document: 00513343056 Page: 6 Date Filed: 01/14/2016
No. 15-30674

7

machine and stairs outweighed any minimal risk posed by the wood chips.21 

The minimal risk of harm also limits the relevance of the other two factors. 

Appellees may have been able to prevent the harm at a low cost, but a property 

owner does not necessarily need to expend any money to prevent a negligible 

risk of injury that can easily be avoided.22 In the same vein, Butler’s activity 

may have great social value, but a minimal risk of harm does not appreciably 

interfere with this activity. Butler may complain that this analysis is little 

different from the district court’s approach, but the Louisiana Supreme Court 

has instructed that one factor may often be determinative under the riskutility balancing test.23 Indeed, the Louisiana Supreme Court has concluded 

in several cases that the balancing “revolve[d] around the second factor, 

namely, the substantial likelihood and magnitude of harm from the [defect], 

with consideration to whether the [defect] was apparent or obvious.”24 We 

conclude that this is true here as well.

IV.

Based on the reasons stated above, we AFFIRM.

 

21 Butler suggests that we should consider the utility of allowing “wood chips to spray 

onto [the] stairs,” not the utility of the chipping machine or stairs themselves. The Louisiana 

Supreme Court, however, has instructed that we should “focus[] on the social utility of the 

thing as a whole, notwithstanding the presence of the defect.” Pryor v. Iberia Par. Sch. Bd., 

60 So. 3d 594, 597 (La. 2011) (per curiam). 22 See Pitre v. La. Tech Univ., 673 So. 2d 585, 593 (La. 1996).

23 See Broussard, 113 So. 3d at 191-92.

24 Dauzat v. Curnest Guillot Logging Inc., 995 So. 2d 1184, 1187 (La. 2008) (per 

curiam); see also Bufkin v. Felipe’s La., LLC, 171 So. 3d 851, 856-59 (La. 2014) (resting 

decision to grant summary judgment on second factor); Pryor, 60 So. 3d at 598 (same).

 Case: 15-30674 Document: 00513343056 Page: 7 Date Filed: 01/14/2016