### 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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: 01/14/2016No. 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 stair s wa s 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 d ebris 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 s tandards as the district court. S ummary judgment is proper when ‘ there is no g enuine dispute as to any material fact and the movant is entitled t o 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: 01/14/2016No. 15

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3 injuries resulting from any risk po sed by the building. Rather, the owner is only responsible for those injuries caused by a ruinous condition or defectiv e 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 agai nst an open and obvious hazard. If the facts of a particular case show that the com plained

- 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 impr operly 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 an d 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, preventi ng 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 po tentially encounter it. ”).
6 Broussard , 113 So. 3d at 188. Case: 15-30674 Document: 00513343056 Page: 3 Date Filed: 01/14/2016No. 15

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4 witnesses testified that they were aware of the alleged defect 7

— a s 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 necessa ry 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 us ing 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 decid e this question. Nevertheless, we have reviewed the video and agree with Appellees that it establishes that the w ood chips we re so numerous and prominent that no reasonable juror could conclude that they were not “open and obvious.” With due regard for t he 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 i n 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: 01/14/2016No. 15

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5 Broussard , the Louisiana Supreme Court observed that “ whether a defect presents a n 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, t he court explained it has a dopted 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 a s 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 Louisian a 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, t he court expla ined 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 clarif ied 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 s ummary 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: 01/14/2016No. 15

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6 for the defendants because the “complained

- of condition . . . was obviou s and apparent to anyone who ma y 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 utili ty

- 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

ou tweigh the risks caused by its defective condition. ” 19 The video submitted by Appellees establishes that the wood chi ps were “open and obvious” and

pose d a very low ri sk of injury. 20 Accordingly , the utility of the chi pping

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 a ny 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: 01/14/2016No. 15

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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 har m at a low cost, but a property

owner does not necessarily need to expend any money to preven t 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 o ften be determinative under the risk

utility balancing test. 23 Indeed, the Louisiana Supreme Court has concluded in several cases that the balancing “revolve[d] around the second factor, namely, the substa ntial 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 uti lity 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 D auzat 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