Keogh Cox Secures Dismissal of Premises Liability Case

The Fourth Circuit recently affirmed summary judgment Keogh Cox obtained in Clark v. Premier Automotive Management, LLC, finding the plaintiff’s circumstantial evidence failed to establish an unreasonable risk of harm caused her to fall.

In Clark, the plaintiff claimed she was injured after slipped and fell in a puddle of water in a service garage. Keogh Cox attorneys Chad A. Sullivan and Cole C. Frazier filed a motion for summary judgment on behalf of the defendants in response. The defendants asserted that the plaintiff failed to submit sufficient proof to establish that standing water or a hazardous condition caused her fall. Specifically, the defendants maintained that the plaintiff could not establish (1) an unreasonable risk of harm existed within the garage or (2) the puddle of water existed on the garage floor for an extended period of time.

The plaintiff’s deposition testimony established that it rained earlier in the day, that she was walking quickly before she fell, and that she was wearing flip flops. The plaintiff also testified she assumed she fell in a puddle of water because her back was damp after her fall. She described the amount of water under her shoes as the size of a “softball.”

The defendants also attached the affidavits of two employees who worked at the service garage on the day of the incident. The affidavits acknowledged wet conditions on the day of the incident but denied any prior complaints or accidents in the area. The affidavits also established that the plaintiff fell in an uncovered area of the garage that slopes downward. Thus, there was no possibility for standing water or puddles to collect.

Based upon this evidence, the appellate court found that the defendants satisfied their burden of proof to show there was no unreasonable risk of harm. The court stated the burden then shifted to the plaintiff to establish that there was an unreasonable risk of harm and thus establishing a genuine issue of material fact. However, the court found that the plaintiff failed to meet her burden because all her arguments were based upon conclusory allegations and unsupported speculation. To support her claims, the plaintiff could only cite to the “possibility” of the existence of standing water or puddles. As such, the plaintiff only speculated whether a hazardous substance or an unreasonable risk of harm caused her fall. Such speculation was insufficient to establish a genuine issue of material fact.

In so holding, the court affirmed the dismissal of the plaintiff’s claims that Keogh Cox obtained through summary judgment.

References:

Clark v. Premier Auto. Mgmt., LLC, 2024-0397 (La. App. 4 Cir. 2/10/25), --- So.3d ---, 2025 WL 451473.

The Louisiana Supreme Court recently ruled that a co-defendant who pleads comparative fault as an affirmative defense may appeal a summary judgment that dismisses a co-defendant, even when the plaintiff did not file an appeal. The Court’s decision in Amedee v. Aimbridge Hospitality resolved a circuit split among the Louisiana Courts of Appeal regarding this issue.

The Amedee plaintiff filed a personal injury suit against multiple defendants including the City of New Orleans and Premium Parking of South Texas, LLC. After discovery, the City of New Orleans filed a Motion for Summary Judgment seeking dismissal from the suit. The plaintiff did not oppose the city’s motion. Premium Parking was the only party to file an opposition. The trial court granted the city’s motion and dismissed it from the suit. Premium Parking appealed the court’s judgment.

The Fourth Circuit did not address the merits of Premium Parking’s appeal. Instead, the court dismissed the appeal because it found Premium Parking did not have a legal right to appeal the city’s dismissal when the plaintiff did not appeal the judgment.

The Supreme Court disagreed and reversed the appellate court’s ruling. The Court noted that “to prohibit appellate review of a summary judgment by a co-defendant, even where a plaintiff did not appeal, diminishes the search for truth—the object of a lawsuit—and denies a defendant the ability to fully defend itself.” To reach this conclusion, the Court first asked, who may appeal a judgment?

To answer this question, the Court looked to La. C.C.P. art. 2082 and observed the article makes no restriction regarding what party may appeal a final judgment. Further, the Court noted that the right to an appeal is even extended third parties, not involved in the suit, when that third party is allegedly aggrieved by the judgment. See La. C.C.P. art. 2086.

The Court also considered a defendant’s right to appeal in the context of Louisiana’s pure comparative fault system and summary judgments. Under La. C.C. art. 2323, Louisiana’s comparative fault statute, the fault of all parties is to be quantified. La. C.C.P. art. 966(G), provides that when summary judgment is granted in favor of a party or non-party to a suit, the fault of the dismissed party may not be considered in any subsequent allocation of fault in the matter.

The Court noted that while art. 966(G) precludes an allocation of the fault of a party dismissed under the statute, it does not limit the right of a defendant to appeal the dismissal of a co-defendant. No statute limited a defendant’s right to appeal a summary judgment only to those situations where a plaintiff also filed an appeal. Therefore, a defendant who hopes to keep a co-defendant in the case so that fault still may be allocated to the dismissed party at trial now may appeal the co-defendant’s dismissal, even when the plaintiff fails to do so.

Case Reference: Amedee v. Aimbridge Hosp. LLC, 2021-01906 (La. 10/1/22), --- So.3d ---, 2022 WL 12338929.

In South Alexander Development I, LLC v. Markel American Insurance Co., the U.S. District Court for the Middle District of Louisiana granted an insurer’s motion for summary judgment finding that the insured’s failure to cooperate violated the policy’s coverage terms and voided coverage.

The dispute arose from a commercial first-party property loss following Hurricane Ida. The insurer moved quickly to adjust the claim by retaining an independent adjuster and engineers to evaluate the damage to and value of the insured property. It also asked the insured to produce documentation needed to complete the adjustment, including records of installation costs, monthly revenues, and repair estimates. The insured did not respond.

Additionally, the insurer sent numerous emails over the course of the claim requesting information about (1) the costs the insured had incurred; (2) documentation supporting the income loss claim, along with quotes, estimates, and proposals for repairs; and (3) the scope of work for testing and repairs. However, most of these requests went unanswered.

Based on this evidence, the court determined that the insured violated the terms of the policy because it failed to cooperate with the insurer’s investigation. Most notably, the insured obtained repair estimates and proposals from its own contractor and withheld them from the insurer until after suit was filed. The insured also never submitted a completed proof of loss, even though the policy required submission of such a document that included estimates and “other reasonable information” the insurer needed to settle the loss. These acts showed the insured failed to “cooperate with [the insurer] in performing all acts required by this policy.”

The insurer showed that it pursued the information diligently and that the insured’s breach was both material and prejudicial. The court found (1) the insurer had documented repeated, specific requests for nearly a year, (2) the withheld documents went directly to quantifying the loss, and (3) the insured’s noncompliance deprived the insurer of its right to investigate the insured’s claim.

As a result, the court granted summary judgment finding no genuine issue of material fact relating to the insured’s breach of the policy’s cooperation clause. The insured was precluded from bringing a breach of insurance contract claim and therefore, without a valid contractual claim, the insured also could not pursue a bad faith claim against the insurer.

References:

South Alexander Development I, LLC v. Markel American Insurance Co., CV 23-1436-JWD-SDJ, 2026 WL 1819120 (M.D. La. June 24, 2026).