Louisiana Court is Clear: Res Ipsa Loquitur of Little Use in Pool Defect Case

The Louisiana Supreme Court recently issued a ruling on the application of the "open and obvious" doctrine in slip and fall cases. The facts of Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), presented problems for both sides. A UPS driver tripped and fell over an offset between the floor and an elevator. The elevator in a State building had problems for years. One problem was that the elevator would not align properly between floors causing an offset between the floor and the elevator. However, the UPS driver delivered products to this particular State building daily and was well aware of the problem. At the time of the incident, he noticed that the elevator was not properly aligned but nevertheless attempted to pull a dolly with approximately 300 pounds of computer paper over the offset. The inertia created caused the plaintiff to lose control. Plaintiff sued the State, the owner of the building, for injury to his back.

To recover damages from an owner of a building for a slip and fall, a plaintiff must prove: 1) ownership of the building; 2) owner's knowledge of the defect; 3) that damage could have been prevented by reasonable care; 4) that the owner failed to exercise reasonable care; 5) causation of damages; and 6) that the defect in the building created an unreasonable risk of harm. La. C.C. art. 2322; Entrevia v. Hood, 427 So. 2d 1146 (La. 1983). It was the "unreasonable risk of harm" element that was at issue before the Broussard Court.

Louisiana jurisprudence has created a risk-utility balancing test to determine if a defect in a building poses an unreasonable risk of harm. The risk-utility balance test consists of four factors: 1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Dauzet v. Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08), 995 So. 2d 1184.

In applying this balancing test, the jury found the State 62% liable and Plaintiff 38% liable for Plaintiff's damage. The court of appeal reversed that decision. It found that, where the Plaintiff knew of the defect, the defect was "open and obvious" such that the State had no duty to protect against the condition.

The Louisiana Supreme Court disagreed. Under the specific facts of the case, the Court found that Plaintiff's knowledge of the defect was insufficient to meet the open and obvious test. According to the Court, for a defect to be considered open and obvious it must be open and obvious to all. "Thus, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." Broussard, p. 17.

The Supreme Court reasoned that the open and obvious question is not based upon the plaintiff's particular state of mind. Such an analysis is akin to assumption of the risk - a theory of law that was omitted when Louisiana enacted its comparative fault regime. Instead, the open and obvious to all standard is, according to Broussard, "sensible . . . and does not undermine the comparative fault regime by allowing a plaintiff's negligence to operate as a bar to recovery in a case where the defendant's conduct poses a risk of harm to the hypothetical blameless plaintiff." Id. p. 18.

The true impact of the Broussard decision remains to be seen. Under one reading, the opinion's impact should be limited to its specific facts. Under any interpretation, Broussard preserves the rule that an allegedly defective condition which is obvious to all will bar recovery to the plaintiff.

When Casey Krueger and his family went to the pool at the La Quinta Inn & Suites in Baton Rouge, they knew how they wanted to end their day. What the Kruegers (and La Quinta) did not know was that a piece of clear, broken glass was on the bottom of the pool. Mr. Krueger stepped on the glass and experienced a “large and deep cut” that caused permanent loss of some function of his toe. He filed suit alleging that La Quinta was negligent for the defective condition in its pool. Krueger v. La. Quinta Inn & Suites, 18-0052 (La. App. 1 Cir. 9/21/18). He also alleged the negligence of La Quinta was self- evident such that the doctrine of res ispa loquitur should apply to impose liability. His claims were rejected by the jury; the Louisiana First Circuit upheld the verdict.

“Res ipsa loquitur” is a Latin phrase that means “the thing speaks for itself.” The doctrine of res ipsa is used where a plaintiff relies solely upon circumstantial evidence to prove negligence. For res ipsa to apply, the plaintiff must: 1) prove that the injury is the kind which ordinarily does not occur in the absence of negligence; 2) eliminate other more probable causes of the injury (such as the conduct of the plaintiff or of third-persons); and 3) show that the negligence of the defendant fell within the scope of the duty owed to the plaintiff. Res ipsa is often cited where the defendant possessed exclusive control of the thing which caused the injury. Id.

In the Krueger case, La Quinta checked the pool twice a day and posted signs that banned glass from the pool area. There was also no evidence that it knew or should have known of the glass in the pool. After all, clear glass in a clear pool is hard to detect. Lacking direct evidence of negligence, the Kruegers hoped the res ipsa doctrine would make their case. With some justification, they contended that broken glass was not to be expected in a hotel pool. However, res ipsa was found not to apply. Because it was “possible that a third party caused broken glass to enter the pool,” the plaintiffs could not establish all three elements to the doctrine.

Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a league tennis player, a cook, and a hobbyist writer.

Under the Louisiana Health Emergency Powers Act (“LHEPA”), a plaintiff must establish a medical provider’s gross negligence in a medical malpractice case when the treatment at issue occurred during a declared state of public health emergency.^ However, the Louisiana Supreme Court recently ruled that a medical review panel shall not consider gross negligence when the medical treatment occurred during a declared state of public health emergency.

In Sebble v. St. Luke’s, the plaintiff instituted a medical review panel for a medical malpractice claim related to medical treatment provided from June 17, 2020 to June 24, 2020. This treatment was received during a declared state of public health emergency. Sebble asked the court for a declaratory judgment to state that the gross negligence standard, usually applied during a state of public health emergency, should not be considered or applied in medical review panel proceedings conducted pursuant to the Louisiana Medical Malpractice Act (“LMMA”).

In response, the health care provider also sought a declaratory judgment that LHEPA’s standard of gross negligence applied and that the medical review panel must consider and analyze the claim under the gross negligence standard. The trial court ruled in favor of Sebble declaring that the gross negligence standard shall not be considered or applied in the medical review panel proceeding. The Louisiana Fourth Circuit Court of Appeal affirmed.

The Louisiana Supreme Court examined provisions of the LMMA and the LHEPA and affirmed the trial court and court of appeal. The court agreed there is a distinction between a medical standard of care (considered by the medical review panel) and a legal standard of care (dictated by the LHEPA). The panel of medical experts is only qualified to render an opinion based on the medical standard of care. The panel’s opinion is then considered by the trier of fact in making a judicial determination.

Medical review panels include an attorney chairperson. However, the Supreme Court stated that the attorney chairperson is not authorized to instruct the panel on gross negligence. The Supreme Court also rejected a proposed two-step process where the panel would first determine whether the medical provider breached the standard of care; and only if the panel found a breach would it consider whether there was gross negligence. The Court rejected this proposal because the legislature did not provide for this process in the statute.

Although the Court agreed that the LHEPA is an immunity statute, it made clear that immunity is an affirmative defense that can only be plead in civil litigation. The statute provides for two defenses at the panel stage: right of action and prescription. Therefore, immunity provided under the LHEPA may not be invoked until a civil action is instituted district court.

However, Sebble was 4-3 decision, with a dissent by Justices Weimer, Cain, and McCallum, which may suggest this issue could resurface in the future. For now, under Sebble, gross negligence is not to be considered by the medical review panel.

References:

Sebble v. St. Luke’s, 2023-C-00483 (La. 10/20/23), 379 So.3d 615.

^ La. R.S. 29:766(A).