International Society of Primerus Law Firms

Litigation Defense Law Update

Sidney W. Degan, III

During the course of representing our clients, we occasionally call to their attention, changes in the law that could potentially affect their interests.  Accordingly, we now set forth a synopsis of the following decisions that may be of some interest to you and your company.

INDEMNITY

In Johnson v. Hamp’s Construction, LLC, et al., 0033 (La. App. 4 Cir. 6/7/17), plaintiff was injured when a tire blew out on a construction site of the Orleans Parish School Board. The school board had a contract with a construction company which contained an indemnity and hold harmless provision. The Louisiana Fourth Circuit Court of Appeal held that an indemnification claim of a public body is not ripe until the conclusion of the lawsuit for which indemnification is based. The Court held this because under La. R.S. 38:2216(G)(1), a public body cannot recover under a contractual indemnity provision when damages sustained by third parties were caused by the negligence of the public body.

PREMISES LIABILITY

In Alvarado v. Lodge at the Bluffs, LLC, et al., 2016-CA-0624 (La. App. 1 Cir. 3/29/17), plaintiff sustained injuries when a stool collapsed beneath her from missing screws while she was a guest at a condominium resort. Plaintiff filed suit against the condominium owner and the resort lodge. The lodge was responsible for booking guests, collecting rent, and cleaning units. The furniture was owned by the respective unit owners. The Louisiana Fifth Circuit Court of Appeal affirmed summary judgment in favor of the unit owner and the lodge, holding that under La. Civ. Code Art. 2317, the duty of reasonable care imposed on an innkeeper requires reasonable inspections to determine if any piece of furniture is in disrepair or defective. Reasonable care does not require an intensive inspection in search of missing screws or parts.

In Wells v. The Town of Delhi, et al., 51, 222-CA (La. App. 2 Cir. 4/5/17), plaintiff was injured by a falling tree on the edge of property lines owned by a private person and a city. The Louisiana Second Circuit Court of Appeal reversed the trial court’s granting of defendants’ motion for summary judgment ruling that the “Act of God” defense was only available to a defendant who was free of negligence and showed the accident was the direct and exclusive result of natural causes that could not be prevented by the exercise of reasonable care.

In Reider v. Christus Health Southwestern La., et al., 16-959 (La. App. 3 Cir. 4/5/17), plaintiff sued a hospital and its maintenance company when she slipped and fell on the floor of the hospital. The Louisiana Third Circuit Court of Appeal held that in a case where a plaintiff is pursuing damages for a slip and fall accident that happened at a hospital, regardless of whether they are suing the hospital or not, the applicable burden is that which applies to hospitals, not the burden imposed by the standard duty/risk analysis or the burden imposed on non-merchant defendants.

In Morel v. Cheema Properties, LLC, et al., 16-CA-666 (La. App. 5 Cir. 4/12/17), the Louisiana Fifth Circuit Court of Appeal held that hoses on the ground in front of a store were an open and obvious condition where a defendant owes no duty of care. Here, plaintiff testified that she saw the hoses and was aware that the hoses were a “problem,” yet she chose to “go forward with her cane” and fell. Plaintiff could have avoided the risk of falling by asking that the hoses be moved and/or by asking for assistance in walking back to her car.

In Williams v. Liberty Mutual Fire Ins. Co., et al., 2016-CA-0996 (La. App. 1 Cir. 3/13/17), plaintiff tripped and fell over a curb when exiting a restaurant. The Louisiana First Circuit Court of Appeal held that a simple curb in a parking lot does not create an unreasonable risk of harm. Further, the court held that no legal duty is owed when the condition is obvious and apparent to all and not unreasonably dangerous.

In Alexander v. Hancock Bank d/b/a Whitney Bank, et al., 2016-CA-0662 (La. App. 4 Cir. 2/08/17), plaintiff tripped over the lip of the rubber edge of a floor mat in the lobby of a bank. The Louisiana Fourth Circuit Court of Appeal held that the bank was not a merchant for purposes of Louisiana’s Slip and Fall Statute, La. R.S. 9:2800.6C(2), and therefore, La. Civ. Code Art. 2317.1 applies. Under that article, plaintiff must prove liability under the general negligence standard.

In Luft v. Winn Dixie Montgomery, LLC, 16-CA-559 (La. App. 5 Cir. 2/08/17), plaintiff tripped and fell on a clear piece of plastic from shelving at a Winn Dixie store. Winn Dixie filed a motion for summary judgment. Plaintiff, in her opposition, only put forth evidence establishing that Winn Dixie did not follow its own internal inspection procedures by failing to walk the aisle for an hour prior to the accident. The Louisiana Fifth Circuit Court of Appeal affirmed the trial court’s ruling and held that under La. R.S. 9:2800, plaintiff did not establish that defendant caused the defect, nor did she establish that defendant had actual or constructive notice of the defect, which are required elements of her claim.

VICARIOUS LIABILITY

In Franklin v. Dick, Crawford, ACE Cab, L.L.C. d/b/a Yellow Checker Cab, et al., 51, 479-CA (La. App. 2 Cir. 6/21/17), plaintiff was involved in a car accident and sued the cab driver, lessor of the cab, the cab company, and its insurer. Defendant cab company and lessor filed a motion for summary judgment alleging that the cab driver was an independent contractor and not an employee for purposes of vicarious liability. The Louisiana Second Circuit Court of Appeal, in affirming the trial court’s granting of defendant’s motion, held that the most important factor in determining an employee-employer relationship is the right to control the work. Here, the cab driver leased the cab from the lessor and the cab company. There was a distinct lack of control over the driver’s work as he set his own hours, received no salary, and could not be fired.

In Lemmon v. De La Mora, et al., 2016-CA-1004 (La. App. 1 Cir. 2/17/17), plaintiff filed suit against the driver and his alleged employer as a result of an automobile accident, contending that the driver was in the course and scope of his employment. Defendant driver was bringing his co-workers home from work after his shift and was not being paid, and he was not required to bring his co-workers home. The Louisiana First Circuit Court of Appeal affirmed the trial court’s granting of defendant employer’s motion for summary judgment because there is a general rule that establishes that an employee coming home from work is outside the scope of his employment, and therefore, his employer is not vicariously liable for his conduct.

In Carr v. Sanderson Farms, Inc., et al., 2016-CA-1064 (La. App. 1 Cir. 2/17/17), plaintiff was injured in a workplace fight and alleged that his employer was negligent for hiring the co-worker, even after the employer was aware of the co-worker’s criminal history and propensity for violent behavior. The Louisiana First Circuit Court of Appeal reversed the trial court’s granting of an exception of no cause of action, holding that if an employer knows or should know of a dangerous condition or person on his premises, the employer is obligated to take reasonable steps to protect its employees. Here, the employer was aware that the defendant employee had a history of violent behavior in the workplace and had threatened the plaintiff employee.

NEGLIGENCE

In Blanchard v. Mitchell, 17-444 (La. App. 3 Cir. 7/12/17), the Louisiana Third Circuit Court of Appeal upheld the trial court’s denial of defendant’s motion for summary judgment. In Mitchell, an employee left keys inside a company vehicle. A thief stole the vehicle and got into an accident with plaintiff. The Third Circuit declined to extend the rulings made by the Louisiana Fourth Circuit Court of Appeal and other courts, which held that La. Rev. Stat. 32:145 does not go so far as to protect a plaintiff from being negligently injured by one who has stolen a car with the keys left in it. La. Rev. Stat. 32:145 provides, “No person driving or in charge of any motor vehicle shall permit it to stand unattended without first stopping the motor, locking the ignition, removing the key, and effectively setting the brake thereon.” While the employee violated the statute, civil liability can only extend to the employer if the statutory violation was the legal cause of plaintiff’s damages. Legal causation is a decision for the fact finder, not the court, and thus summary judgment was not appropriate.

In Mitchels d/b/a Shapes Gym v. Aaron’s Rentals, et al., 2016-CA-0619 (La. App. 1 Cir. 4/12/17), plaintiff filed suit against two neighboring businesses, alleging that flood damage to plaintiff’s business was the result of the adjacent property owners’ failure to maintain their respective drainage systems. The Louisiana First Circuit Court of Appeal affirmed summary judgment in favor of defendants, holding that plaintiff’s theory of res ipsa loquitor did not apply, because the flooding could have been due to a cause other than defendants’ negligence. Further, the court held that an expert opinion that is conclusory about ultimate legal issues is not sufficient to establish causation when there are no underlying facts to support that conclusion.

In Small v. Rouse’s Enterprises, LLC d/b/a Rouses Market, 2016-CA-0953 (La. App. 4 Cir. 6/7/17), plaintiff found a human fingernail in her prepared salad, which caused nausea and persistent vomiting, which required medical treatment. Defendant argued that plaintiff could not prove a breach of the duty of care because there was no proof of how the nail got into the food, and no evidence that defendant did anything inappropriate while preparing it. The Louisiana Fourth Circuit Court of Appeal, in upholding an award of $2,500.00, held that a food provider, in selecting, preparing, and cooking food, including the removal of injurious substances, has a duty to act as a reasonably prudent man skilled in the culinary art of selection and preparation of food. Further, the doctrine of res ipsa loquitor applied because there was a factual finding that plaintiff was one of the first customers to enter the buffet line of undisturbed food.

In Foster v. Kinchen, Wells, & Farm Bureau Ins. Co., 2016-CA-0544 (La. App. 1 Cir. 3/29/17), plaintiff was operating a bicycle when he was struck by defendant driver. Plaintiff was later determined to have a blood alcohol content of .084.  The Louisiana First Circuit Court of Appeal reversed the trial court’s granting of defendants’ motion for summary judgment and held that a “bicycle” does not constitute a “motor vehicle” or “vessel” under La. R.S. 9:2798.4, which provides immunity for damages suffered by persons operating a motor vehicle, vessel, aircraft, or watercraft while under the influence of alcohol or drugs.

In Lahare v. Valentine Mechanical Services, LLC, 17-C-289 (La. App. 5 Cir. 6/29/17), the Louisiana Fifth Circuit Court of Appeal reversed the trial court’s denial of defendant’s motion for partial summary judgment. In Lahare, plaintiff contracted with defendant Valentine for the installation of an air conditioner on the side of her house. Defendant obtained a permit to install it on the back of her house, which in turn required the plaintiff to obtain a variance and approval by her neighbors to move it. While going to speak with her neighbors, plaintiff tripped on a defective sidewalk. The Fifth Circuit held that only an active breach of contractual duties can support an action under tort law. An active breach of contract is where a party negligently performs a contractual duty. In this case, the negligent failure to obtain a proper permit was not the cause in fact of plaintiff’s injuries and the defective sidewalk was an intervening cause.

In Cheramie v. Port Fourchon Marina, Inc., 2016-CA-0895 (La. App. 1 Cir. 2/17/17), plaintiff was injured after she fell off of an extension ladder. Prior to the fall, plaintiff leaned the ladder against a rafter in a storage shed, and contended that because the roof of the shed leaked, it caused the wooden rafter to become wet, making the ladder unstable. The Louisiana First Circuit Court of Appeal affirmed the trial court’s granting of defendant’s summary judgment motion because defendants established that the leaky roof and wet rafter were high in utility and that the likelihood and magnitude of harm from the regular ordinary use of them were minimal. Thus, any defect in the leaky roof or wet rafter did not constitute an unreasonable risk of harm when used in an ordinary, non-dangerous manner.

In Chanler v. Jamestown Ins. Co., O’Nealgas, and Moore, 51,320-CA (La. App. 2 Cir. 5/17/17), the Louisiana Second Circuit Court of Appeal affirmed the trial court’s judgment granting plaintiff’s motion for partial summary judgment on the issue of liability. In Chanler, defendant was a professional truck driver who reversed his vehicle into the side of a postal worker’s truck. The court held that the truck driver was 100 percent at fault because a professional truck driver is held to a higher standard of care to the motoring public and the sudden emergency doctrine precluded plaintiff from being at fault as a matter of law.

In Horton, et al. v. Blackrock Aggregates, LLC, et al., 2015-CA-1096 (La. App. 4 Cir. 3/8/17), plaintiff was killed when a wall collapsed upon him while he was working as an independent contractor for defendant building owner in an alley between a building and a wall. The wall was owned by a third party. Defendants, owners of the adjacent building, warned the third party that the wall was dangerous and in need of repair. The trial court found the defendants 75% at fault because they owed decedent a safe work environment and failed to exercise reasonable care, and further, that defendants’ actions had contributed to the collapse of the wall. The trial court found the third party owner of the wall 25% at fault. The Louisiana Fourth Circuit Court of Appeal affirmed, finding that defendants owed a duty to protect decedent from the danger posed by the potential collapse of the wall into the alley, and breached the duty by taking no measure to prevent those working on its renovation project from going near the wall, and by excavating without considering the potential effect on the wall’s stability. As to the 75%-25% allocation of fault, although the third party owned the wall, defendants knew of the walls instability and exacerbated the instability by excavation. Further, the third party did not know anyone had access to the alley.

In Zeno v. Great Southern Coaches of Arkansas, Inc., New Hampshire Ins. Co., et al., 51,370-CA (La. App. 2 Cir. 5/17/17), the Louisiana Second Circuit Court of Appeal affirmed the trial court’s granting of summary judgment in favor of defendants. In Zeno, plaintiff was a passenger on a bus when a metal object flew through the window seriously injuring her. In affirming the trial court, the Second Circuit held that there was no evidence to suggest that the bus driver should have seen the metal before it hit the bus, nor was there any evidence that the driver could have taken any action to avoid the object before it hit the bus.

In Dixon v. The Gray Ins. Co., et al., 17-CA-29 (La. App. 5 Cir. 6/15/17), plaintiff sued several defendants as a result of an automobile accident. One of the defendants was dismissed on summary judgment and plaintiff did not appeal. Another defendant attempted to argue that the trier of fact should still determine and allocate fault between it and the dismissed defendant. The Louisiana Fifth Circuit Court of Appeal held that under La. C.C.P. Art. 966(G), the trial court shall not permit the introduction of evidence, nor any consideration of the fault or comparative fault of a party, or non-party, who has been adjudicated to be without fault or negligence, on summary judgment.

In White v. Normand, et a.l, 16-CA-738 (La. App. 5 Cir. 5/31/17), plaintiff was a passenger in a stolen vehicle involved in a police chase. As she exited the car, a police vehicle made contact with her. The Louisiana Fifth Circuit Court of Appeal upheld the trial court’s ruling, finding no liability against the Sheriff’s office because under La. R.S. 32:24, plaintiff had to prove that the officer was acting in “reckless disregard” for plaintiff’s safety. Here, the officers were engaged in the lawful pursuit of a subject while utilizing their overhead emergency lights and sirens, and thus, were immune under the statute.

In Kebodeaux v. Nabors Drilling, LP, et al., 16-851 (La. App. 3 Cir. 3/1/17), plaintiff was a student at a marine survival course at the University of Louisiana-Lafayette learning how to enter water from an offshore platform in case of emergency. During the training, plaintiff jumped into the water and another student jumped in immediately thereafter on top of plaintiff, causing injury. The Louisiana Third Circuit Court of Appeal, in affirming the trial court’s granting of the University’s motion for summary judgment held that the duty to use reasonable care did not dictate continuous supervision of the student at fault. The school provided unquestionably clear instructions that the student at fault, a fully grown and functional man, should have been able to follow, and he admitted he did not follow the simple instruction not to jump into the water until all others had cleared the area.

In Stafford v. Exxon Mobile Corp., et al., 2016-CA-1067 (La. App. 1 Cir. 2/17/17), plaintiff exited a Hotard bus following a line of movie extras led by a production crew and fell at a holding area. Plaintiff sued Hotard Coaches, Inc. The Louisiana First Circuit Court of Appeal held that a public common carrier, such as Hotard, is held to the highest degree of care, diligence, and skill in receiving passengers, conveying them to their destination, and setting them down safely, as the means and character of the conveyance and circumstances will permit. Once a passenger freely disembarks at his chosen destination free from harm, his status as a passenger, and the public carrier’s contract to transport for hire, ceases. At that point, the public carrier only owes such person the duty of ordinary care, and is under no duty to warn the former passenger of a danger which is apparent, obvious, and known to every person in good mind and sense. The court affirmed summary judgment in favor of Hotard.

In Reed v. Cowboy’s Western Store & Trailer Sales, Inc. et al., 16-462 c/w 16-640 c/w 16-722 (La. App. 3 Cir. 3/1/17), plaintiff was injured when he was rear-ended by a driver who was underage and had been drinking. Plaintiff filed suit against the bar, claiming they served alcohol to the minor involved in the accident, and that she was impaired. The Louisiana Third Circuit Court of Appeal found that an alcohol vendor does not have a heightened duty to patrol its establishment to prevent underage drinking. A bar must only refrain from serving or selling alcohol to minors. Here, defendants proved that the minor was neither impaired nor intoxicated. Therefore, the court affirmed summary judgment.

In Pitre v. Jefferson Parish Hospital, et al., 16-CA-361 (La. App. 5 Cir. 12/28/16), an elderly woman was exiting a hospital when automatic doors closed on her and knocked her to the floor. Plaintiff died in the hospital a few weeks later as a result of complications from her injuries. Plaintiff alleged that the automatic doors presented an unreasonable risk of harm and that the hospital knew or should have known of the risk because the door maintenance company informed the hospital that the doors were not in compliance with ANSI standards. At the conclusion of plaintiff’s case, the trial court granted an involuntary dismissal. The Louisiana Fifth Circuit Court of Appeal upheld the trial court’s ruling, holding that although the maintenance company advised the hospital that the doors were not in compliance, the company did not tell the hospital that the doors were defective or unsafe. Therefore, plaintiff could not carry her burden of proof against the hospital, as a public entity, that the hospital had actual or constructive notice of the defective door.

In Royer v. State of Louisiana, DOTD, 16-534 (La. App. 3 Cir. 1/11/17), plaintiff was seriously injured when he hydroplaned on a highway during the course and scope of his employment. Prior to the trial, the Louisiana Department of Transportation and Development filed a motion in limine seeking credits for payments made by the workers’ compensation insurer of plaintiff’s employer. The court of appeal affirmed the trial court’s denial of the motion, holding that the workers’ compensation insurer and the DOTD (tortfeasor) share coextensive obligations to reimburse the tort victim, the collateral source rule applies, and the tortfeasor is not entitled to a credit for workers’ compensation benefits paid to the victim.

PRESCRIPTION

In Moore and GM Enterprises, L.L.C. v. Chevron USA, et al., 2016-CA-0805 (La. App. 1 Cir. 5/25/17), plaintiff filed suit in 2009 for the contamination of his immovable property from underground storage tanks that began in 2003. Defendants filed for summary judgment based on prescription, and the allegation that plaintiff knew or should have known of the damage to his property in 2003 and thus, his claim was barred. The Louisiana First Circuit Court of Appeal held that although generally, the one year prescriptive period for delictual actions begins to run from the time the damage is sustained, when the damage is to immovable property, the one year prescriptive period begins to run from the time that the owner of the immovable acquired or should have acquired knowledge of the damage. The Court affirmed the ruling of the trial court, that plaintiff had knowledge of the damage in 2003.

WORKERS’ COMPENSATION

In Martinez v. Jaroslav Rames/World of Taste, LLC, 2016-CA-1312 (La. App. 4 Cir. 7/12/17), plaintiff was injured when moving a washer/dryer for defendant. The injured worker filed a workers’ compensation claim, contending that even as an independent contractor, the manual labor exception entitled him to benefits. The Louisiana Fourth Circuit Court of Appeal overturned the workers’ compensation court’s denial of benefits, holding that independent contractors may receive workers’ compensation benefits if they perform manual labor for a substantial amount of time, and the labor is part of the principal’s trade or business under La. R.S. 23:1021(7).

In Louque, et al. v. Scott Equipment Co., LLC, et al., 16-CA-507 (La. App. 5 Cir. 2/08/17), plaintiff was killed when equipment that was being loaded onto a flatbed truck from a forklift rolled onto him. The owner of the facility where the accident occurred filed an exception of no cause of action, alleging that it was the statutory employer of plaintiff, and as such, it was immune from tort liability pursuant to the Louisiana Workers’ Compensation Act, La. Rev. Stat. 23:1061(A)(3). The Louisiana Fifth Circuit Court of Appeal held that even though the defendant was not specifically named in the written contract between the principal and the immediate employer, as required by La. Rev. Stat. 23:1061(A)(3), a defendant can succeeded in establishing a statutory employer defense by submitting evidence that it falls under the same category as the principal in the written contract between the principal and the immediate employer. Here, Shell Oil and the decedent’s immediate employer had a contract which contained statutory employer language that stated the “buyer” or “any of its affiliates” shall be considered a statutory employer. Therefore, defendant was able to prove that it was an affiliate of Shell Oil under the contract and summary judgment was affirmed.

DAMAGES/QUANTUM

In Robinette v. Lafon Nursing Facility of the Holy Family, 2015-1363 (La. App. 4 Cir. 6/22/17), the Louisiana Fourth Circuit Court of Appeal affirmed a damages award of $1,000,000.00 for pre-death survival suffering to an 82-year old woman who died in a nursing home from stroke and dehydration after three days without air conditioning as a result of Katrina. The Court also upheld an award $125,000.00 in wrongful death damages to her three sons. The court, in upholding the damage award, opined that the role of the appellate court is not to decide what damage award is appropriate, but rather, review the exercise of discretion by the trial court. The court upheld the award because of the witness testimony as to the “gory” conditions of the facility of unbearable heat, no running water, and no power.

In Neal v. Wascom, Jr., et al., 2016-CA-1230 (La. App. 1 Cir. 4/12/17), plaintiff was rear-ended, causing her to hit a concrete wall, leave the roadway, flip over, hit a tree, and come to rest in a canal. The Louisiana First Circuit Court of Appeal affirmed the trial court’s general damage award of $700,000.00 for a partially dislocated sternoclavicular joint, a strained shoulder, a strained neck, and a strained back. Plaintiff’s physician testified that she would be receiving treatment for her shoulder injury for the rest of her life.

Federal district courts in Louisiana continue to hold that surgically repaired shoulders are worth $75,000.00. Saucier v. State Farm Mut. Auto. Ins. Co., 14-3157 (W.D. La. Apr. 6, 2017) and Lovell v. Master Braxton, LLC, 15-3978 (E.D. La. Nov. 17, 2016).

Louisiana courts consistently hold that general damages for aggravation of lumbar injuries and extended periods of treatment without surgical recommendations remain in the range of $40,000.00. See Luquette v. Great Lakes Reinsurance (Uk) PLC, 16-422 (La. App. 5 Cir. 12/21/16), Lewis v. Jones, 96 So. 3d 559 (La. App. 5 Cir. 5/22/12), Ford v. Bituminous Ins. Co., 12-1453, 115 So. 3d 1253, 1258 (La. App. 3 Cir. 06/19/13). Louisiana courts are also ruling that the minimum award for cervical and lumbar complaints consisting largely of aggravations of pre-existing degenerative changes treated with lumbar epidural steroid injections and recommendations for cervical epidural steroid injections is $40,000.00. See McLin v. McNabb, 2016-0449 (La. App. 1 Cir. 12/22/16), Tremblay v. Allstate Ins. Co., 955 So. 2d 700 (La. App. 4 Cir. 3/21/07).


The general information contained herein is intended for informational purposes only. It is not intended to be, and should not be construed as, legal advice or legal opinion on any specific facts or circumstances.

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