Recent Law Update - March 2017 - Degan, Blanchard & Nash, PLC
Defense Law Articles
During the course of our representation of 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.
I. NEGLIGENCE
A. Generally
Richardson v. ASI Lloyd’s, 50,976 (La. App. 2 Cir. 9/28/16), involved claims brought by the father of a child who drowned in a homeowner’s pool during a party. In his suit, the father alleged that the homeowner, who permitted his girlfriend, who could not swim herself, to host the pool party, was negligent in so entrusting the pool to his girlfriend for the use of her guests. The district court rendered summary judgment in favor of the homeowner and his insurer, and the Louisiana Second Circuit Court of Appeal affirmed, holding that the father had failed to satisfy his burden of proving that the homeowner’s conduct fell below the standard of care of a reasonable man under similar circumstances. The appellate court pointed out that the key dispute concerned the homeowner’s knowledge at the time he entrusted the pool to his girlfriend and her two adult children who both could swim. Specifically, the homeowner knew that both of his girlfriend’s adult children could swim, that they were present on the day of the party, and that there were adequate life vests available for all adults and children at the party. Thus, under the circumstances of the case, the girlfriend’s inability to swim, and the homeowner’s entrustment of the pool to her to host the pool party, were not the “but-for” causes of the drowning.
In Jolivette v. Hebert, 2016-246 (La. App. 3 Cir. 10/12/16), a pedestrian filed suit against a motorist for injuries to the pedestrian’s hand and ankle sustained after the pedestrian was struck by the motorist’s truck. After a jury trial, the 16th Judicial District Court for the Parish of Iberia entered judgment on a jury verdict allocating 70% fault to the pedestrian and 30% fault to the motorist, based on a finding that the pedestrian walked into the roadway without checking both lanes of traffic. The Louisiana Third Circuit of Appeal affirmed the jury’s allocation, noting that the pedestrian did not carefully negotiate the street because he was focused on whether his ride was approaching. The appellate court, however, also noted that the motorist should have proceeded more cautiously when he noticed a pedestrian stepping into the roadway.
Smith v. Landry, 2015-1742 (La. App. 1 Cir. 8/31/16), reh'g denied (Nov. 1, 2016), involved the claims of an automobile passenger who suffered a brain injury after a rear-end collision. In addition to suing the driver of the vehicle that rear-ended the passenger, the passenger’s Curatrix sued the Louisiana Department of Transportation and Development (DOTD), alleging that it negligently failed to provide an adequate left-turn lane and warning signs at the highway cross-over where the accident took place. Following a jury trial, the 16th Judicial District Court for the Parish of St. Mary found the DOTD 70% at fault for the passenger’s injuries. On appeal, the Louisiana First Circuit Court of Appeal held that the evidence adduced at trial was insufficient to demonstrate that the highway had a condition that posed an unreasonable risk of harm. The Court commented that, pursuant to La. R.S. § 48:35E(l)(b), there is a legal presumption that a public highway was constructed in a reasonably safe condition if it was constructed in accordance with the regulations or guidelines in effect on the date the chief engineer approved the design for the construction or major reconstruction of the highway. Given the foregoing presumption, the median cross-over at issue was presumed to be reasonably safe because its design adhered to the standards in place at the time it was constructed.
In Girtley v. ACE Am. Ins. Co., 15-397 (La. App. 5 Cir. 12/9/15), 2015 WL 8525363, a wheelchair user brought a negligence action against an electric utility provider to recover for personal injuries allegedly sustained when a vehicle struck him as he tried to cross a street with a non-functioning street light. Plaintiff asserted that the utility provider negligently failed to maintain the street lights at this location. The trial court held that a utility company is not liable in negligence for its failure to provide and maintain street lights, and, any benefit a plaintiff may derive from the parish’s utility contract with utility provider is merely incidental and does not constitute a stipulation pour autrui. On appeal, this ruling was affirmed.
In Robertson v. St. John the Baptist Parish, 15-240 (La. App. 5 Cir. 10/14/15), 177 So. 3d 785, St. John the Baptist Parish residents brought a class-action lawsuit against the parish in the wake of flooding after Hurricane Isaac. Plaintiffs alleged that the parish knew, or should have known, that flooding would occur due to available surge predictions, and was negligent for failing to warn residents of probable flooding, failing to declare a mandatory evacuation, and failing to take steps to mitigate foreseeable dangers and damages. The Louisiana Fifth Circuit Court of Appeal held that the parish was entitled to absolute immunity pursuant to La. R.S. § 29:735 for damages resulting from emergency preparedness activities, defined as the “mitigation of, preparation for, response to, and the recovery from emergencies or disasters,” as well as “emergency management” activities.
In Robert v. Turner Specialty Servs., L.L.C., 50,245 (La. App. 2 Cir. 11/18/15), 2015 WL 7280640, truck drivers who transported hydrochloric acid filed a complaint against the supplier of acid and the pulp mill where the acid was loaded into their trucks, after the drivers were injured and their trucks were damaged when a hose ruptured during the loading process. The drivers filed a motion for partial summary judgment against the pulp mill as to liability. The supplier filed a motion for summary judgment as to comparative fault. Both motions were granted and affirmed on appeal. In upholding the district court’s findings, the Louisiana Second Circuit Court of Appeal noted that, while ordinarily the determination of whether negligence or comparative fault exists in a particular case is a question of fact, and therefore cases involving questions of negligence and comparative fault are not appropriate for summary judgment, where reasonable minds cannot differ, these questions may be resolved by summary judgment as matters of law.
B. Premises Liability
In Gauthier v Dollar Tree Stores, Inc., 50,936 (La. App. 2 Cir. 10/21/16), the Louisiana Second Circuit Court of Appeal reversed and remanded a summary judgment granted in favor of a slip-and-fall defendant. In this case, plaintiff claimed that after she reached up to a shelf to pick up an item, she stepped backward and caught her foot on a box that had been placed to one side of an aisle while employees were stocking the shelves. Plaintiff claimed that she fell and hit her shoulder and neck on a shelf resulting in personal injuries. In reversing the district court’s grant of summary judgment, the appellate court noted that plaintiff produced sufficient evidence to create a genuine issue of material fact as to whether the defendant’s practice of placing boxes in the path of shoppers was reasonable, considering its statutory duty to keep aisles and floors used by its guests in a safe condition. Further, the Court opined that a genuine issue of material fact existed as to whether the box on the floor in a location where Plaintiff’s attention was drawn to the items on the shelves above it, created an unreasonable risk of harm.
Jones v. Stewart, 2016-0329 (La. App. 4 Cir. 10/5/16) arose from a slip-and-fall accident that occurred in an attic. Shortly after a roofing project was completed on her home, defendant homeowner noticed that water was leaking from the roof. Believing the leak was covered under the warranty issued by the contractor who had repaired the roof, the homeowner scheduled a roof inspection. On the day in question, the homeowner was unable to meet inspectors from the roofing contractor, and instead arranged to have her friend, plaintiff, meet them. Plaintiff apparently led the inspectors into the attic to ascertain where the leak was coming from. While in the attic, plaintiff slipped and fell through the ceiling sustaining personal injuries. After the initiation of this suit, defendants prevailed on a motion for summary judgment wherein they argued that the condition leading to plaintiff’s fall was “open and obvious.” The Louisiana Fourth Circuit Court of Appeal reversed the district court’s ruling and remanded for further proceedings. The appellate court found that the defendants had failed to show that the allegedly dangerous condition—an unlit, unfinished attic, wet from water leakage—was open and obvious.
Nugent v. Car Town of Monroe, Inc., 50,910 (La. App. 2 Cir. 9/28/16) was a slip-and-fall case that involved a seven and one-half inch step at the entrance of a car dealership. At trial, experts for both plaintiff and defendant testified that the seven and one-half inch drop was within the acceptable building standards in place at the time of construction. At trial, in the jury found that plaintiff did not prove that step constituted an unreasonably dangerous condition. The 4th Judicial District Court for the Parish of Ouachita granted a new trial, however, ruling that although the step presented an open-and-obvious condition, defendant nonetheless had a duty to post warning signs about the step because it posed “some risk of harm.” The Louisiana Second Circuit Court of Appeal reversed the trial court, finding that the grant of a new trial was not supported given that the trial court did not find that the condition was “unreasonably dangerous” but instead only found that it presented “some risk of harm.”
In a per curium opinion, the Louisiana Supreme Court in Reagan v. Recreation & Park Comm'n for Par. of E. Baton Rouge, 2015-1662 (La. 12/4/15), 184 So. 3d 668, reversed a trial court’s denial of summary judgment in a trip-and-fall accident where the evidence presented showed that the fall was occasioned by a crack in the seam of a sidewalk measuring five-eighths of one inch. The Court explained that “[o]ur jurisprudence has consistently held that small cracks or minor deviations in a sidewalk do not present an unreasonable risk of harm.” Although plaintiff speculated that the crack may have been larger, she presented no evidence in support of this contention, and therefore, the Court held that summary judgment was warranted as plaintiff would be unable to meet her burden at trial to show a duty on the part of defendant.
Collins v. Home Depot, U.S.A., Inc., 15-199 (La. App. 5 Cir. 12/9/15), involved claims asserted by a store patron and his wife against a home improvement store after the patron slipped and fell on a wet floor. The trial court granted summary judgment in favor of the store, finding that the store had established a prima facie case that it did not have operational control over the contractor it engaged to clean its floors, as required to render it vicariously liable. Affirming the district court on appeal, the Louisiana Fifth Circuit Court of Appeal held that the store could not be held vicariously liable because: (1) the contractor was free to choose how it did its work; (2) the contractor’s employees were not subject to defendant’s control; (3) the contractor provided the materials it used; (4) defendant paid a fixed fee for the work performed; (5) the contractor’s employees were not on defendant’s payroll; and (6) defendant did not have the contractual right to control the work performed by the contractor’s employees.
In Smith v. S.W. La. Hosp. Ass'n, 2015-502 (La. App. 3 Cir. 11/4/15), 178 So. 3d 308, plaintiff, a patient who slipped and fell on a wet floor at a hospital, filed a personal injury action for back and neck injuries sustained as the result of her fall. After plaintiff was awarded damages at trial, the hospital appealed. In affirming the trial court’s damage award, the Louisiana Third Circuit Court of Appeal held that the failure of the hospital to place a warning cone, as was common practice when the floors were wet, created an unreasonable risk of harm.
C. Products Liability
In Marable v. Empire Truck Sales of La., LLC, 2012-10471 c/w 2012-10523, 2013-04560, Civil District Court for the Parish of Orleans, State of Louisiana, Division “I,” the jury awarded $51.5 million to the family of a woman who was severely injured when she was run over and dragged by her husband’s 2007 Freightliner truck. Plaintiff was injured after the truck rolled forward despite allegedly having its emergency brake engaged. She was pinned under the wheels of the truck and dragged for some distance resulting in multiple crushing injuries and a traumatic brain injury. Freightliner Trucks, a division of Daimler Trucks North America LLC, was found 90% liable for plaintiff’s injuries due to the truck’s lack of sufficient safety features and its deficient parking brake system. Given the size of this award, one of the largest ever granted to a single plaintiff in this jurisdiction, the verdict will most likely be appealed.
D. Damages
In Gillespie v. Calcasieu Par. Sch. Bd., 2015-647 (La. App. 3 Cir. 12/2/15), 179 So. 3d 966, the parents of a 16-year-old minor sued a teacher and the school board on behalf of their child, alleging that the teacher engaged in sexual misconduct with the child in the form of lewd sexual solicitations via text message. Plaintiffs further asserted that the school board had hired the teacher even though it was aware of a prior similar incident. After trial, the jury found in plaintiffs’ favor and awarded $250,000 in compensatory damages against both defendants and $300,000 in punitive damages against the teacher pursuant to Louisiana Civil Code art. 2315.3. The jury allocated fault at 50% to the teacher, 40% to the school board, and 10% to the child. On appeal, the Louisiana Third Circuit Court of Appeal held that: (1) the trial court did not err in concluding that the school board was not liable for punitive damages; (2) it was error to allocate any fault to the minor; and (3) the award of $250,000 was not manifestly erroneous.
In Hoffman v. 21st Century N. Am. Ins. Co., 2014-2279 (La. 10/2/15), 2015 WL 5776131, the Louisiana Supreme Court established, as a matter of first impression, that a write-off from a medical provider negotiated by a plaintiff’s attorney does not fall within the scope of the collateral source rule. In declining to extend the collateral source rule to attorney-negotiated medical discounts obtained through the litigation process, the Louisiana Supreme Court explained that allowing plaintiff to recover an amount for which he has not paid and for which he has no obligation to pay, is at cross purposes with the basic principles of tort recovery.
In Lockett v. UV Ins. Risk Retention Group, Inc., 180 So.3d 557 (La. App. 5 Cir. 11/19/2015), a plaintiff who was struck by a semi-truck and trailer driven by an independent contractor sought damages for personal injuries. Plaintiff had surgery performed on her lumbar discs, but required treatment throughout the rest of her life. Plaintiff argued that all of her medical expenses should be submitted to the jury, and that the amount which was “written-off” by her medical provider should be excluded from evidence under the collateral source rule. The Louisiana Fifth Circuit Court of Appeal affirmed the holding that the collateral source rule applies to these facts. Thus, when a victim negotiates a reduction of his or her medical expenses through individual efforts, the collateral source rule applies. The appellate court explained that it would be contrary to the collateral source rule if defendants were allowed to benefit from the bargain struck between a victim and her healthcare provider.
E. Damages; Medical Expenses
In Rabun v. St. Francis Med. Ctr., Inc., 50,849 (La. App. 2 Cir. 8/10/16), on reh'g in part, 50,849 (La. App. 2 Cir. 11/23/16), a plaintiff who was injured in a motor-vehicle accident brought a putative class action against the hospital where she was treated, alleging breach of contract and seeking declaratory and injunctive relief. In particular, plaintiff alleged that the hospital’s decision to attach a medical lien against her potential personal injury settlement proceeds, rather than submit claims to the patient’s health care insurer, violated the Health Care Consumer Billing Disclosure Protection Act. Importantly, the lien that the hospital sought to attach was for the full amount of medical charges rather than the discounted rate it contracted for with plaintiff’s health care insurer. As matter of first impression, the Louisiana Second Circuit of Appeal found that the amount of a medical lien imposed on a third-party tortfeasor is limited under the Health Care Consumer Billing Disclosure Protection Act to the healthcare provider’s contracted rate with the patient’s health insurance issuer.
F. Intentional Torts
In Allgood v. Bordelon, 2015-504 (La. App. 3 Cir. 12/9/15), 2015 WL 8329505, a school principal who was allegedly assaulted by a basketball coach filed suit against the coach and the school board. The trial court entered judgment on a jury verdict, finding that the coach had committed a battery upon the principal, that the principal was 60% comparatively at fault in the incident, and that the principal was not entitled to any recovery. The Louisiana Third Circuit Court of Appeal reversed the judgment, holding that the jury was manifestly erroneous in finding the principal 60% at fault. The appellate court explained that even if the principal did slap the coach after the coach spit in the principal’s face, the coach’s reaction was so unreasonably excessive that it would negate any fault associated with the slap.
II. MEDICAL MALPRACTICE
In the case of In re Prof'l Liab. Claim of Snavely (D), 2015-207 (La. App. 3 Cir. 11/4/15), 178 So.3d 614, the Louisiana Third Circuit Court of Appeal held that a medical malpractice action was prescribed on its face. The facts of this case are as follows. On August 18, 2012, a patient died as the result of poly-drug toxicity. Prior to his death, the patient was injured in a motorcycle accident and was prescribed pain medications. An injury sustained in this accident required surgery, and the patient was instructed to discontinue his use of pain medications prior to undergoing that surgery. Nonetheless, the patient’s treating surgeon prescribed pain medications during the relevant period. After the patient’s death, his mother consulted with a drug toxicity expert who provided a report of his findings to the mother in July or August 2013. The mother commenced a medical malpractice action on June 24, 2014—more than one year from the death of her son but less than one year from the date that she received the expert report. The mother contended that she was not aware of any purported malpractice until she received the expert’s report. The defendant surgeon contended that the malpractice action was prescribed on its face as it was filed more than one year after the patient’s death, and filed an exception of prescription, which was granted by the trial court. Affirming this ruling, the Louisiana Third Circuit Court of Appeal held that the claim was prescribed on its face because the mother: (1) knew the surgeon treated her son; (2) knew the surgeon suggested that the son discontinue his use of prescription pain medicine; and (3) knew the surgeon nevertheless prescribed pain medication during the relevant period. Therefore, the mother was on notice that her son may have been the victim of a tort at the time of his death.
III. CONTRACTS
In Schindler Elevator Corp. v. Long Prop. Holdings, L.L.C., 50,199 (La. App. 2 Cir. 11/18/15), 2015 WL 7280622, an elevator maintenance company brought an action against a building owner for breach of contract. In response, the building owner filed a reconventional demand seeking rescission of the contract, damages, and attorneys’ fees. The district court found that the contract was terminated and denied the reconventional demand but awarded attorneys’ fees for the owner. The Louisiana Second Circuit Court of Appeal affirmed the district court’s ruling, finding that the service contract was terminated by oral agreement and the maintenance company was not entitled to liquidated damages for early termination of the contract. The appellate court explained that a contract that is not required by law to be in writing may be modified by a subsequent oral agreement, and parol evidence in such a case is admissible to prove the modification.
IV. WORKERS’ COMPENSATION
A. Generally
In Verges v. AmTrust N. Am., 2016-0203 (La. App. 4 Cir. 8/31/16), 198 So. 3d 1267, reh'g denied (Sept. 12, 2016), a special education teacher was allegedly attacked and injured by a seven year old autistic boy while she was in the course and scope of her employment. A judge with the Louisiana Office of Workers’ Compensation ruled that as a result of this workplace incident, the teacher was entitled to indemnity benefits, attorneys’ fees, penalties, and assault pay. The Louisiana Fourth Circuit Court of Appeal ruled that while a compensable workplace incident occurred, resulting in disability to the teacher, which entitled her to indemnity benefits, penalties, and attorneys’ fees, the Louisiana Office of Workers’ Compensation court had no authority or jurisdiction to award assault pay.
In Sislo v. New Orleans Ctr. for Creative Arts, 2016-0178 (La. App. 4 Cir. 8/17/16), 198 So. 3d 1202, reh'g denied (Sept. 1, 2016), writ denied, 2016-1781 (La. 11/7/16), a school administrator sought workers’ compensation benefits, alleging that she was exposed to airborne construction debris at school, which exacerbated a pre-existing medical condition and eventually caused her to a undergo a lung transplant. After the school administrator filed for benefits, her employer moved for summary judgment, arguing that the alleged exposure occurred in a parking lot before or after her work day, and thus, was not encountered while the school administrator was in the course and scope of her employment. The employer further argued that the school administrator’s alleged exposure was no greater than the risk of exposure to any other member of the public would encounter. Reversing the Louisiana Office of Workers’ Compensation court, the Louisiana Fourth Circuit Court of Appeal held that summary judgment was inappropriate because the employer failed to prove that the general public was equally susceptible to the alleged exposure.
In Williams v. Morris Transp., 50,054 (La. App. 2 Cir. 11/18/15), 2015 WL 7279957, a claimant who was working out of state sought workers’ compensation benefits in Louisiana, and the employer filed an exception asserting lack of subject matter jurisdiction. The Louisiana Office of Workers’ Compensation denied the employer’s exception and the employer sought a supervisory writ from the Louisiana Second Circuit Court of Appeal. After granting the writ, the appellate court held that Louisiana courts lacked jurisdiction over the claimant’s request for benefits because, pursuant to La. R.S. § 1035.1, Louisiana workers’ compensation benefits can only be extended to an employee injured while working out of state where: (1) the employment is principally localized in Louisiana; or (2) the employee is working under a contract of hire made in Louisiana. The appellate court explained that the “making of the contract” test requires an examination of the contracting parties’ intent and an analysis of how and where the agreement was perfected through offer and acceptance.
B. Attorneys’ Fees
In Marshall v. Town of Winnsboro, 50,255 (La. App. 2 Cir. 11/25/15), a claimant sought workers’ compensation benefits from his former employer, the Town of Winnsboro. The Louisiana Office of Workers' Compensation awarded the claimant disability benefits, compensation for medical treatment, penalties, and attorneys’ fees. The Louisiana Second Circuit Court of Appeal held that: (1) the evidence was sufficient to support a finding that the claimant’s back pain was probably worsened by injuries suffered after a work-related accident; (2) reasonable evidence existed to support a finding that even though the claimant completed a retirement form scheduling his retirement from the town water department three years prior, he did not intend to retire from the workforce completely (as was required to the terminate the town’s obligation to pay benefits beyond the prescheduled retirement date); and (3) the claimant’s claim was not reasonably controverted, and thus, the claimant was entitled to an award of penalties and attorneys’ fees. The appellate court noted that an employer cannot ignore a medical finding by a treating physician and controvert benefits because it questions the doctor’s finding and need for more information. Furthermore, the worker’s compensation judge did not err in imposing penalties and attorneys’ fees where the employer: (1) denied the accident arose out of and in the course of his employment, even though there were three eyewitnesses to corroborate the claim; and (2) denied the claim before conducting a reasonable investigation into the facts underlying the claim.
C. Prescription
In Safford v. Hammerman & Gainer Int'l, Inc., 2016-0209 (La. App. 4 Cir. 7/20/16), 198 So. 3d 227, a retired firefighter sought judicial review of a decision rendered by the Louisiana Office of Workers’ Compensation, in which the workers’ compensation judge granted the employer’s exception of prescription and dismissed the firefighter’s claim for indemnity benefits associated with a cardiac condition. Reversing the workers’ compensation judge, the Louisiana Fourth Circuit Court of Appeal held that a claimant may avoid prescription by proving that his case falls under one of the jurisprudential “refinements” or exceptions. As was the case here, one such refinement, the estoppel exception, applies when an employer lulls an employee into a false sense of security or prevents an employee from timely filing suit. To prevail under this exception, a claimant must show that the employer’s words, action, or inaction induced him to withhold suit until the prescriptive period had elapsed. Here, the retired firefighter alleged that he was lulled into a false sense of security by his employer when the employer: (1) accepted his cardiac condition claim in writing; (2) informed him by letter that his “claim has been accepted under the Heart and Lung act effective 6/11/10”; (3) continued paying him indemnity benefits on another claim after accepting his cardiac claim; and (4) never informed him that his claim for indemnity benefits arising from the cardiac condition was denied until after his cause of action had prescribed. Given the foregoing, the appellate court ruled that the workers’ compensation judge was manifestly erroneous in finding that the evidence was insufficient to support estoppel.
In closing, we trust that these recent updates in the law may be of some interest to your company. Should you require additional information on any of these cases or legislation, or the areas covered, please contact us, and we will endeavor to provide the requested information.