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

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 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.

Louisiana premises liability law continues to evolve in the wake of the Louisiana Supreme Court's decision in Broussard v. State, 113 So.3d 175 (La. 2013). The Broussard decision was believed to limit the application of the open and obvious defense in the context of a Motion for Summary Judgment on liability.On February 18, 2014, the First Circuit Court of Appeals decided Gustafson v. Priority Electric, Inc., et al, 2013 CA 1096, 2014 WL 647704 (2/18/14) (not designated for publication), providing additional insight as to how Broussard will affect the applicability of the open and obvious defense. Based on Gustafson, the open and obvious defense may still be alive in the context of a Motion for Summary Judgment.While the Gustafson's home was under construction, Ms. Gustafson entered the home unescorted. She stood facing a newly repainted wall and took several steps backward to broaden her perspective of the wall. As she walked backwards, she tripped on one of two unfinished PVC conduit "stub-outs" containing electrical wire that would ultimately service floor-mounted outlets in an adjoining den. The lawsuit ensued.Priority Electric filed a Motion for Summary Judgment on the grounds that the stub-out presented an open and obvious condition that was readily discoverable had plaintiff exercised reasonable care. The company further argued that it had no duty to warn. The Trial Court agreed that the stub-out was an open and obvious condition and granted the motion.The Appellate Court conducted a de novo. The defendants argued, and the Trial Court agreed, that "if a defect is obvious and apparent, then there is no correlative duty to warn of its existence." Citing Broussard, the Appellate Court found that statement to be a misstatement of the law, noting that Broussard's analytic framework for evaluating an unreasonable risk of harm is classified as a determination of whether a defendant breached a duty owed, rather than a determination of whether a duty is owed ab initio.In light of Broussard, the Trial Court's reasoning underlying the grant of summary judgment was flawed. Nevertheless, the Appellate Court found a basis to support the Trial Court's dismissal of the claims utilizing a "risk-utility" analysis considering multiple factors.

1. Utility of the Stub-Outs

The necessity and utility of the stub-outs was not disputed.

2. Likelihood and Magnitude of Harm

The decision turned on this element. The utility of the stub-outs must be weighed against the likelihood and magnitude of harm presented by their defective condition, including whether the defect was open and obvious. The plaintiffs did not make a showing that any of the numerous contractors, subcontractors or visitors to the premises ever tripped. They also failed to offer expert testimony to show that the stub-outs presented an unreasonable risk of harm. Instead, they relied solely on the testimony of Ms. Gustafson, who admitted she was walking backwards and not paying attention. Unlike in Broussard, there was no evidence that the stub-outs were not "open and obvious to all who encountered them..."3. Cost of Preventing the HarmNo expert testimony was presented to show that the use of PVC stub-outs was unconventional in a new home or that there were reasonable alternatives to their use. No evidence was presented to show how the stub-outs could have been better placed or made more visible.　 Although plaintiffs argued that warning cones should have been in place, no evidence was presented to show that the contrast of the blue pipes on the gray cement was insufficient to alert an unsuspecting person.4. Nature of Plaintiff's ActivityPlaintiff was walking backwards when she fell. She acted unreasonably. The home was under construction and could have encountered a number of hazards. She failed to offer countervailing evidence on this issue.Upon balancing all of the factors above, all evidence showed that the accident would not have occurred "but for" Ms. Gustafson's own inattention and negligence.