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

Louisiana summers are hot and humid. Suffocating. Temperatures in July and August regularly exceed 100 degrees, but the temperature inside a parked car is even higher. According to the Centers for Disease Control, the inside of a parked car can reach 130 to 172 degrees when the outdoor temperature is between 80 and 100 degrees. Cracking the windows or parking in the shade has little effect. Because it only takes 10 minutes for the interior temperature of a parked vehicle to rise 20 degrees, children and animals left alone for “just a few minutes” are at risk. On average, 37 children and hundreds of pets die of vehicular heat stroke each year. In an effort to address this problem, the Louisiana Legislature recently passed a law to encourage action.The Legislature enacted two statutes to provide immunity from claims of property damage or trespass for any person causing damage to a motor vehicle while rescuing a minor or animal in distress. La. R.S. 37:1738 et seq. provides immunity if the person:

1. Makes a good-faith attempt to locate the owner before entering the vehicle.
2. Contacts local law enforcement, the fire department, or calls 911 before entering the vehicle.
3. Determines that the vehicle is locked and has a good-faith belief that there are no other reasonable means for the minor or animal to be removed from the vehicle.
4. Believes that removal of the minor or animal from the vehicle is necessary because the minor or animal is in imminent danger of suffering harm.
5. Uses force that was reasonably necessary under the circumstances to enter the vehicle.
6. Places a notice on the windshield of the vehicle providing details of the person’s contact information, the reason entry was made, the location of the minor or animal, and notice that the proper authorities have been notified.
7. Remains with the minor or animal in a safe location reasonably close to the vehicle until emergency responders arrive. If the person cannot remain with the minor or animal, the person must do the following:
8. For a minor: notify local law enforcement, the fire department, or the 911 operator and take the minor to the closest police station or hospital.
9. For an animal: notify local law enforcement, the fire department, animal control, or the 911 operator and take the animal to the closest shelter.

One wonders if a person reacting in an emergency will remember to leave a detailed note or to make the call before they act. If they do not, the immunity may be lost because immunity statutes are strictly construed in Louisiana. Also, the immunity does not apply to bodily injuries suffered by a minor during the rescue activities.So, if you see a child or animal in danger in a hot car, the law now allows you to act with immunity, maybe.

Louisiana courts traditionally have ruled claims of administrative negligence fell outside of the purview of the Louisiana Medical Malpractice Act (LMMA). Courts found the LMMA applied strictly to cases “arising from medical malpractice.” In cases where Plaintiffs argued medical administrative failure, courts applied general tort law. This meant that the LMMA’s key protections— the statutory cap on damages and the requirement for a pre-suit medical review panel— did not apply to claims based on alleged administrative failures.

The following cases illustrate this point:

• In LaCoste v. Pendleton Methodist Hosp., Plaintiff alleged a hospital failed to maintain its life-support equipment and implement emergency evacuation plans.^
• In Blevins v. Hamilton Med. Ctr., Inc., Plaintiff alleged the hospital failed to provide him with equipment in proper working condition, to keep his bed in lowest position with wheels locked, and to properly instruct him on proper use and safety of his bed.*
• In Scio v. University Med. Mgmt. Corp., Plaintiff alleged the defendant failed to implement policies to ensure that follow up appointments were properly communicated.^^
• In Billeaudeau v. Opelousas Gen. Hosp. Auth., Plaintiff alleged the hospital was negligent in its credentialing of a doctor in the emergency department.**

The Louisiana Supreme Court used the “Coleman factors” established in Coleman v. Deno^^^ to determine whether the alleged conduct in these cases could constitute “malpractice.” These factors assess (1) whether the alleged conduct is treatment-related, (2) whether expert testimony is required to examine the claim, (3) whether assessment of the patient’s condition was involved, (4) whether it involves a physician-patient relationship, (5) whether the injury would have occurred absent treatment, and (6) whether the act was intentional. Considering these factors in each of the cases outlined above, the Court found the LMMA did not apply.

However, recent legislative amendments expanded the LMMA’s scope and raise questions about how these cases would be decided now. Effective August 1, 2025, new amendments broaden the definitions of “health care” and “malpractice” under La. R.S. 40:1231.1 to include administrative and managerial actions that are necessary for delivering medical care. While the full text of the new statute should be considered when evaluating any pending or potential claims, a summary is provided here.

Under the amended statute:

“Health care” now includes any act, treatment, “administration, service, or care related to policies and procedures and the administration thereof, staffing, custodial services by licensed or certified staff…” Further, the amendment expressly provides that the definition of health care “includes all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”

Additionally, under the amendment, the definition of “malpractice” now explicitly covers all acts tied to staffing and expressly includes “all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”

These amendments suggest the cases outlined above may have been decided differently if they were filed today. However, it remains to be seen how courts will apply these changes moving forward.

References:

^ LaCoste v. Pendleton Methodist Hosp., LLC, 07-0008 (La. 9/5/07), 966 So. 2d 519.

* Blevins v. Hamilton Med. Ctr., Inc., 2007-127 (La. 6/29/07), 959 So. 2d 440, 442, 443.

^^ Scio v. University Med. Mgmt. Corp., 19-1319 (La. 10/21/19), 280 So. 3d 1135.

** Billeaudeau v. Opelousas Gen. Hosp. Auth., 2016-0846 (La. 10/19/16), 218 So. 3d 513, 515.

^^^ Coleman v. Deno, 2001-1517 (La. 1/25/02), 813 So. 2d 303, 316.

The 1^st Circuit Court of Appeal recently ruled that a Plaintiff is prohibited from maintaining a direct negligence claim (negligent hire, negligent supervision, etc.) against an employer when the defendant/employer admits the employee was in the course and scope of the employment, stating:

“(A) plaintiff cannot maintain a direct negligence claim, such as negligent hiring, training, supervision, etc., against an employer, while simultaneously maintaining a claim against the negligent employee for which the plaintiff seeks to hold the employer vicariously liable, after the employer had admitted that the employee was in the course and scope of employment at the time of the alleged conduct.” See Elee v. White, - - So. 3d - - (La. App. 1 Cir 7/24/20) 2020 WL 4251974.

The ruling in Elee joins the Louisiana 5^th Circuit court of appeal which entered a similar ruling. See Landry v. National Union Fire Insurance Company of Pittsburg, 289 So.3d 177 (La. App. 5 Cir. 12/30/19).

Meanwhile, the federal courts in Louisiana, under the Erie doctrine, reached differing results. In Thomas v. Chambers, 2019 WL 1670745 (E.D. La. 2019)(Vance, J.) and Dennis v. Collins, 2016 WL 6637973 (W.D. La. 2016 (Hicks, J.), the District Courts acknowledged the holding outlined above. However, Judge Cain, sitting in the Lake Charles division of the Western District ruled to the contrary. See Roe v. Safety National, 18-cv-1353 (W.D. La. 2020).

But, what happens when the defendants further admit sole fault for the accident? The result was discussed in Ferguson v. Lenoir et al. Notably, Magistrate Judge Hornsby, ruling on defendants’ request for a protective order, found that defendants admission of fault eliminated the need to reconcile the different rulings when it found that “(no) evidence of (employer’s) negligent hiring, training, supervision or entrustment can raise (employer’s) percentage of fault above 100.” See Case 5:17-cv-01570-SMH-MLH Document 90 Filed 06/30/20 (p 2 of 6). As a natural consequence of this rule, the court recognized that a protective order limiting further discovery was appropriate. Plaintiff appealed the magistrate’s Order, but US District Judge Hicks denied Plaintiff’s appeal and affirmed Judge Hornsby’s ruling. Case 5:17-cv-01570-SMH-MLH Document 122 Filed 09/22/20.

John has been practicing over 30 years and is a Senior Partner with firm where he serves on the Management Committee. He has devoted attention to non-profit boards dedicated to assisting at risk children. He enjoys time with his three children and grandchildren. He also enjoys tennis and hiking.