Court Grants Summary Judgment and Takes Stock of Evidence Needed to Support Merchant Liability Claims

The First Circuit Court of Appeals affirmed the Trial Court’s ruling that granted summary judgment in a premises liability case filed following an accident that occurred at the LSU Hilltop Arboretum. The Louisiana Supreme Court recently denied writs seeking review of the lower courts’ rulings. Keogh Cox attorneys, Brian T. Butler and C. Reynolds LeBlanc, defended the case.

In Hebert v. Louisiana State Univ. Sys. Bd. of Supervisors Through Louisiana State Univ., the plaintiff went to the LSU Hilltop Arboretum to attend a wedding. Before the wedding, she went to the ladies’ room located in the outdoor pavilion area. The door to the restroom is controlled by an automatic door closer. The plaintiff alleged that the door began to close with “excessive force” when she exited the ladies’ room, and her finger was injured when it slid into the hinge-side of the door.

The plaintiff claimed the automatic door closer was defective because it was not properly adjusted at the time of the accident. The plaintiff retained an expert professional engineer to support her claims. The expert inspected the door and the door closer approximately 19 months after the incident. He testified that when he inspected the door, it was closing too fast, was out of adjustment, and had been improperly maintained. The plaintiff argued these findings showed the door was also defective at the time of the accident.

The expert also said the doors should have been inspected and adjusted every six months. The plaintiff argued the alleged problem with the door would have been discovered if it was inspected as her expert recommended.

Keogh Cox filed a Motion for Summary Judgment on behalf of the defendants. First, we argued the plaintiffs failed to produce evidence that the door was defective on the date of the accident. While the expert opined the door was defective when it was inspected nineteen months after the accident, the plaintiff had no evidence to show the alleged defect existed at the time of the accident. Keogh Cox asserted that the expert’s testimony claiming a defect was pure speculation. The court agreed and found the plaintiff failed to show the door presented an unreasonable risk of harm.

Second, we argued the plaintiff could not show LSU had prior notice that the door was defective at the time of the accident. As the door to the primary restroom on the premises, it was frequently used. There was no evidence of any prior complaints or reports of problems with the door before the accident. The plaintiff argued that notice could be found because LSU did not have a set inspection plan for the door as her expert recommended.

The court rejected this argument, stating “The opposite is true; in the absence of other facts such as recorded complaints about a defect or hazard, the lack of a plan of inspection implies that the public entity has no knowledge of dangerous defects or conditions.” Thus, the court found the plaintiff failed to show LSU had notice of the alleged problem with the door.

Reference:

Hebert v. Louisiana State Univ. Sys. Bd. of Supervisors Through Louisiana State Univ., 2025-0246 (La. App. 1 Cir. 11/7/25), 424 So. 3d 809, writ denied, 2025-01542 (La. 2/10/26), 425 So. 3d 1205.

Legal malpractice claims in Louisiana are governed by a peremption period that cannot be interrupted or suspended. La. R.S. 9:5605(A) provides that a legal malpractice claim must be brought one year from the date of the alleged malpractice, or within one year from the date the alleged malpractice should have been discovered. However, even when a claim is filed within one year of discovery, it must be filed within three years of the date of the alleged malpractice. If a party fails to assert a legal malpractice claim before the peremption period expires, the right to bring the claim is lost.

The Louisiana Supreme Court holds that “peremption commences to run in a legal malpractice case when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice.” In Crosby v. Waits, Emmett, Popp & Teich, LLC, the court recently examined the types of circumstances that should inform a plaintiff that an act of alleged malpractice occurred, which would trigger the peremptive period in which the plaintiff’s claim must be filed.

The plaintiff in Crosby owned 75% of a company and was in the process of buying out the minority stakeholder. The company was involved in litigation at the time. Initially, the minority stakeholder maintained all of the recovery and risk related to the suit. In April 2016, an attorney advised the plaintiff to accept an offer to split the recovery and risk in the suit 50/50 as part of the sale. The plaintiff then accepted the 50/50 offer. The litigation concluded after the sale, in February 2018, and resulted in an adverse judgment for which the plaintiff was responsible pursuant to the 50/50 agreement.

The plaintiff filed suit on February 12, 2019, within one year of the verdict in the underlying litigation, and claimed that its attorney committed malpractice when he advised that plaintiff accept the offer to split the recovery and risk in the suit. Specifically, it was alleged the attorney failed to examine the nature of the litigation or discover that the seller’s employees were aware the suit bore serious risk. The plaintiff’s representative testified that he did not keep track of the litigation and therefore could not have known the attorney engaged in the alleged malpractice until the jury rendered its verdict in the underlying suit.

However, the minority stakeholder testified that he knew the 50/50 offer was a bad deal for the plaintiff. Another employee testified he thought the risk of loss in the underlying suit was apparent to everyone involved. The court agreed. Based upon the evidence presented, “it should have been obvious to all concerned that the 50/50 option was favorable” to the minority stakeholder, who was adverse to the plaintiff’s interest.

The court held that the plaintiff should have known its attorney may have committed an act of malpractice when he advised it to accept the 50/50 split before the underlying litigation concluded. Accordingly, suit was not filed within one year of when the plaintiff should have known the alleged act of malpractice occurred. The plaintiff’s claims that it lacked such knowledge could not stand up to conflicting evidence. Thus, the claim was peremepted, and the plaintiff’s suit was dismissed.

Case References:

Crosby v. Waits, Emmett, Popp & Teich, LLC, 2022-0395 (La. App. 4 Cir. 11/21/22), 352 So. 3d 145.

Jenkins v. Starns, 2011-1170, p. 15 (La. 1/24/12), 85 So.3d 612, 621.

A Louisiana man logged onto eBay. To save some money, hebought a used racing bicycle. While riding this bike through his neighborhood,he noticed an unlevel section of the roadway and attempted a “bunny hop” overthe gap in the pavement. The front wheel disconnected when he landed. Thecyclist lost control and flipped over the handlebars, sustaining seriousinjuries. He later filed suit against Specialized, the manufacturer of thebicycle, under the Louisiana Products Liability Act (“LPLA”). See Delahoussaye v. Boelter, --- So.3d---,2019-0026 (La. App. 1 Cir. 11/15/19).

The evidence in Delahoussaye showed that the bike wasmissing its “secondary retention device,” which keeps the wheel fromdisengaging if the “quick release” on clamp on the front fork is not engagedproperly. Also, no warnings were found on the bike. Based upon this evidence,the cyclist claimed Specialized should be liable because the bike wasdefective; unreasonably dangerous in its design, construction, and manufacture;and inadequate in its instructions and warnings.

To recover from a manufacturer under the LPLA, a plaintiffmust show that the product (here, the bike) was unreasonably dangerous atthe time it left the manufacturer’s control. Photographs of the bike showeda light, silver spot on the bike where the secondary retention device had beenlocated. This confirmed that the secondary retention device was removed afterit originally was manufactured. Evidence also showed that warning stickersoriginally on the bike had been removed.

These changes were made after Specialized lost control of the bike. Because the bike was not defective when the product left Specialized’s control, Specialized, as the bike’s manufacturer, could not be liable under the LPLA for injuries the plaintiff sustained when he lost control of the bike. In short, this case came down to a matter of control.

Reynolds LeBlanc is a partner at Keogh Cox. His practice areas include commercial litigation, personal injury claims, appeals, and other matters. Reynolds is a former teacher, who in his free time plays music and perpetually talks himself into training for his next marathon.