PATRICIA RIVET MURRAY, Judge.

This is a personal injury suit by a tenant, Billie Warren, against her landlord, Dr. Robert Kenny, and his insurer.1 From the trial court's decision granting Dr. Kenny's motion for summary judgment, Ms. Warren appeals. Finding a genuine issue of material fact exists, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the accident in question, Ms. Warren was employed by Dr. Kenny as a medical assistant and living in an apartment owned and operated by him. Her apartment was located in the same two-story building as Dr. Kenny's medical office. His office was located on the first floor, and her apartment was located on the second floor. Another apartment that Dr. Kenny leased to Mark Shanks also was located on the second floor.2 Ms. Warren had no lease. She was allowed to live in the apartment as an employment incentive without paying rent or utilities.

According to Ms. Warren, Dr. Kenny provided his tenants with access to a community laundry facility—a washer and dryer that he owned and that were located on Mr. Shanks' open second floor balcony. She claimed that Dr. Kenny provided his tenants with access to the laundry facility not by stairs, but rather by a ladder. She explained that Dr. Kenny had his maintenance man, Keith Sparrow, attach an A-frame (carpenter) ladder with a cable lock to the iron work on the exterior wall under the balcony. She further claimed that Dr. Kenny instructed the tenants, including her, to use the attached, unopened, A-frame ladder to access to the community laundry facility.3

On the day of the accident, Ms. Warren woke up early to do her laundry. According to Ms. Warren, she successfully ascended the ladder and placed her laundry in the washer; as she was attempting to descend the ladder she fell. In her deposition, Ms. Warren testified as follows regarding how the accident occurred:

The photographs taken the date of the accident reflect that both Ms. Warren and the railing fell to the ground. As a result of the accident, Ms. Warren broke her femur. This suit followed.

After answering the suit and denying liability, Dr. Kenny filed a motion for summary judgment asserting that he owed no duty to warn Ms. Warren of the open and obvious danger of ascending and descending an A-frame tethered and locked ladder to access a neighboring tenant's second floor balcony to do her laundry. In connection with the motion, Dr. Kenny introduced the four depositions that were taken in this case—the depositions of the parties (Ms. Warren and Dr. Kenny), the other tenant (Mr. Shanks), and Dr. Kenny's maintenance man (Mr. Sparrow). He also introduced copies of photographs of the ladder taken by Ms. Warren's friend on the date of the accident.5

Although Dr. Kenny acknowledged the existence of a factual dispute between the parties regarding the purpose for the placement of the ladder,6 he contended that the factual dispute was not material. Rather, citing Ms. Warren's deposition testimony that she "didn't think the whole [ladder] setup was safe," he contended that she was aware before her fall that utilizing the ladder to enter her neighbor's porch was an unsafe activity. He further contended that despite her awareness of the inherent risks,7 Ms. Warren had made a conscious decision to climb the ladder. He thus argued that he owed no duty to warn her of such an open and obvious condition.

Opposing the motion, Ms. Warren alleged that there were genuine issues of material fact regarding what actually had led to the placement of the ladder, what the intended use of the ladder was, and whether Dr. Kenny owed a duty to her as a result of the conversations between them regarding the washer-dryer situation. She further alleged that the conditions in question were not so open and obvious as to preclude a finding of negligence on Dr. Kenny's part. Finally, she alleged that summary judgment was premature because discovery was ongoing and because she was in the process of retaining an expert.

Following the hearing on the motion, the trial court ruled from the bench in Dr. Kenny's favor. The trial court rejected the argument that the factual dispute regarding the purpose for the placement of the ladder created a genuine issue of material fact. Rather, the trial court determined that it was "an open and obvious danger to climb a ladder to the second floor to climb over three railings to go into a porch to wash clothes," and thus concluded that Dr. Kenny had no duty to Ms. Warren. This appeal followed.

DISCUSSION

The issue presented is whether the trial court correctly granted summary judgment dismissing this suit. The motion for summary judgment is a procedural device designed to avoid a full-scale trial when there is no genuine issue of material fact. Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 546-47. "When sufficient time has been allowed for discovery, the courts will assess the proof submitted by the parties, equally without the former presumption in favor of trial on the merits, in order to dismiss meritless litigation." Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 5 (La.2/20/04), 866 So.2d 228, 232, n. 2. "Favored in Louisiana, the summary judgment procedure `is designed to secure the just, speedy, and inexpensive determination of every action' and shall be construed to accomplish these ends." King v. Parish National Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)).

Appellate courts review summary judgment de novo, using identical criteria to that used by the trial court in considering whether summary judgment is appropriate. Id. The rules governing summary judgments are found in La. C.C.P. arts. 966 and 967.8 In determining whether summary judgment is appropriate the two issues a court must resolve are whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066, p. 5 (La.7/6/04), 880 So.2d 1, 5. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A "material" fact is "one that would matter on the trial on the merits." Id. The applicable substantive law determines materiality. Id.

Summarizing the applicable substantive law regarding the duty of a landowner, the Louisiana Supreme Court in Eisenhardt v. Snook, 08-1287, pp. 5-6 (La.3/17/09), 8 So.3d 541, 544-45, stated:

Simply stated, the duty a landowner owes to a person injured by a defect on his property hinges on how obvious the defect is to all comers. Pitre, supra.

In this case, the trial court granted summary judgment in Dr. Kenny's favor based on its conclusion that "there's no basis in law for finding him liable because it was an open and obvious dangerous situation." On appeal, Ms. Warren contends that there are genuine issues of material fact, including the purpose for placement of the ladder and the integrity of the railing. She further contends that Dr. Kenny's actions—ordering the ladder be placed on the wall for the purpose of allowing tenants to access the community laundry facility and instructing tenants, including her, to use the ladder for that purpose—were sufficient to create a duty. See Posecai v. Wal-Mart Stores, 99-1222 (La.11/30/99), 752 So.2d 762. She further contends that the trial court erred in finding that the existence of an open and obvious dangerous condition precludes her recovery. In support, she cites DeStevens v. Harsco Corp., 94-1183 (La.App. 4 Cir. 3/16/95), 652 So.2d 1054, for the proposition that the open and obvious nature of the dangerous condition generally only determines the issue of the plaintiff's comparative fault, not the defendant's duty.10

In granting the motion for summary judgment, the trial court's finding that no duty existed was based on the jurisprudence holding that "the duty which a landowner owes to persons entering his property is governed by a standard of reasonableness, and that a potentially dangerous condition that should be obvious to all comers is not, in all instances, unreasonably dangerous." Socorro v. City of New Orleans, 579 So.2d 931, 941 (La. 1991).11 This is referred to as the "open and obvious" defense. As this court has recently noted, "the factfinder may conclude that an open and obvious defect does not present an unreasonable risk of harm." Burns v. CLK Investments V, L.L.C., 10-0277, p. 19 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1163-64 (emphasis in original).

We note that in the instant case, the alleged dangerous condition consisted of not only the attached ladder, but also the removable railing on Mr. Shanks' balcony. The photographs taken on the day of the accident reflect that both Ms. Warren and the railing fell to the ground. The railing was affixed only by "screen door" hooks so that it could be removed when necessary to allow large items (like furniture) to be moved in and out of the apartment, which had very narrow hallways. Ms. Warren argued that "[a]ny reasonable lay person could opine that a three foot piece of railing should not be secured, with any expectation of holding, with only a screen door hook on one side and eyelet on the other."

In her deposition, Ms. Warren testified that, before her accident, she was not aware of any problem with the railing:

In deciding the motion for summary judgment, the trial court reasoned as follows:

The trial court specifically rejected Ms. Warren's contention that the parties' dispute regarding the purpose for the placement of the ladder created a genuine issue of material fact. Instead, the court found that the photographs of the ladder setup taken the day of the accident reflect that climbing up and down this ladder was "a dangerous and difficult thing to do" and that it was "unreasonable to think that one would not get hurt climbing up that ladder and stepping on to that porch, especially as you're going up and down with a basket of clean or dirty clothes. The risk that comes with that is that you're going to fall."

We agree with the trial court that the risk of climbing a ladder up the side of a building to a second floor balcony while carrying a basket of laundry might reasonably be deemed an open and obvious danger. Nevertheless, we find that the impermanent manner in which the balcony railing was secured in this case was not an open and obvious danger. Moreover, the fact that the ladder was attached to the side of the building did not put Ms. Warren on notice that the balcony railing, which was secured only by "screen door" hooks, would likely come loose if she attempted to climb over or under it.13

Although good judgment may have dictated, as the trial court reasoned, that Ms. Warren do her laundry someplace else, that fact does not absolve Dr. Kenny from potential liability as a matter of law. Under these circumstances, a fact finder reasonably could determine that Dr. Kenny, assuming he told Ms. Warren she could use the washer and dryer on Mr. Shanks' balcony, also should have warned her that the railing was secured only by "screen door" hooks so that it could easily be removed. Whether or not he had a duty to do so under the particular circumstances presents a genuine issue of material fact that precludes summary judgment. Stated otherwise, even though Ms. Warren's decision to use the ladder and climb over (or under) the railing may have been unreasonable—as the trial court found— and may ultimately result in the fact finder allocating a substantial percentage of the fault to her, we cannot conclude on the basis of this record that it precludes her recovery as a matter of law. We therefore find the summary judgment was improperly granted.14

DECREE

For the foregoing reasons, the judgment of the trial court is reversed; and this matter is remanded for further proceedings.

REVERSED AND REMANDED

ARMSTRONG, C.J., dissents.

McKAY, J., dissents.

TOBIAS, J., concurs in the result.

ARMSTRONG, C.J., dissents.

I respectfully dissent for the reasons assigned by Judge McKay.

McKAY, J., dissents.

I respectfully dissent and would affirm the trial court's granting of summary judgment.

The Louisiana Supreme Court has specifically held that, 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 landowner may owe no duty to the plaintiff. Dauzat v. Curnest Guillot Logging, Inc., 2008-0528 (La.12/2/08), 995 So.2d 1184; Hutchinson v. Knights of Columbus, 2003-1533 (La.2/20/04), 866 So.2d 228. Furthermore, a landowner is not liable for any injury which results from a condition which should have been observed by the plaintiff in the exercise of reasonable care or which was obvious to the visitor as it was to the landowner. Hutchinson at 235.

In the instant case, the risk was obvious, yet the plaintiff decided to use the ladder to access the balcony anyway. Both the land owner and the tenant of the other apartment testified that they did not give the plaintiff permission to access balcony via the ladder. There is no dispute as to the facts of this case. The plaintiff clearly took it upon herself to act in an unreasonable manner and she suffered the consequences.

TOBIAS, J., concurs in the result.

Like the trial court, I focus on whether the ladder rather than the railings created an unreasonable risk of harm to Ms. Warren. I find the issue is one of comparative fault that cannot be resolved at the hearing of a motion for summary judgment, i.e., genuine issues of material fact exist in this case. Accordingly, I respectfully concur in the result reached by the majority that reverses the granting of the motion and remands this matter for further proceedings.