Louisiana Court Limits Use of Biomechanical Expert Testimony

Unfortunately, recent flooding and storm events have again affected our area in Louisiana. Many people experienced flooding and storm damage to their homes and businesses. If you experienced flood or storm damage, please consider following these steps to ensure your damage claim is properly documented and submitted:

• DOCUMENT, DOCUMENT, DOCUMENT - Once you are able, make sure to document the damages to your home and contents. Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos and video of the damage. Make a list of the items that were damaged or destroyed. One way to organize this list is to group items from each room together, approximate its age, where it was purchased, and its value when purchased. It will be more difficult to document your claim once the cleanup or rebuilding begins.

• OBTAIN MULTIPLE ESTIMATES -To the extent you are able, obtain multiple estimates for the work needed on your home. Pay for the estimate if necessary. If you have three estimates and the amounts are close, they are much more credible. Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.

• NOTIFY YOUR INSURER – Whether a homeowners or flood policy claim, or other insurance claim related to your business, promptly notify your insurer of your damage. Your insurer will send someone to inspect the damage and start your claim. Provide as much information as possible to make their job as easy as possible. That will likely quicken the pace of your claim.

• FLOOD CLAIMS – If you have flood insurance, it is likely provided by the federal government through the National Flood Insurance Program (NFIP). There are specific rules for submitting your claim through the NFIP. YOU MUST SUBMIT FEMA FORM 086-0-11 (NOTICE OF LOSS) WITHIN 120 DAYS OF YOUR DAMAGE. You can find this form here.

As the old adage goes, it’s always safest to get an agreement in writing. In Louisiana, when an agreement is about the sale of real estate, the adage is law. A contract for sale must be in writing as provided in Louisiana Civil Code articles 1839 and 2440.

This long-standing rule was at issue in the recent case of Holmes v. Paul, 19-130 (La. App. 5 Cir. 10/2/19), 279 So. 3d 1068. In Holmes, the plaintiff/seller and defendants/purchasers entered into a purchase agreement for a Metairie home which required a closing by no later than April 29, 2016. The contract was a standard form Louisiana purchase agreement which required that any change in the closing deadline be written and signed by both parties. The parties later entered a written extension of the closing deadline to May 6, 2016.

Three days before the closing, the home appraised for $14,000 below the purchase price, leading the seller’s agent to encourage the purchasers’ agent to pursue an appraisal review. However, the parties did not sign a written extension of the May 6, 2016 closing deadline. Thereafter, the seller agreed to decrease the purchase price to the appraised value, but on the same day the purchasers sent a signed cancellation. The seller sued the purchasers for breach of contract, arguing that the parties verbally agreed to extend the closing deadline and intended to execute a written extension as soon as they determined a feasible closing date.

The purchasers moved for summary judgment on the ground that the purchase agreement had expired and was unenforceable. The Court agreed. The purchase agreement expressly required that extensions be made in writing signed by both parties. Upon the expiration of the May 6, 2016 closing deadline, the contract was unenforceable.

The seller also asserted a detrimental reliance claim, arguing she was lulled into not insisting on a written extension because the purchasers’ agent agreed to it orally. However, the seller conceded her awareness that an extension had to be in writing. As such, her reliance was not reasonable. The court further noted the absence of evidence that the purchasers themselves agreed to orally extend the contract or to waive the writing requirement.

Unfortunately, business deals in the modern world cannot be finalized by a handshake. Remember that when you buy and sell property in Louisiana -- get it in writing.

Marty Golden has been practicing law based in Baton Rouge, Louisiana for over thirty years, concentrating in civil litigation primarily involving injuries, property damage, insurance coverage, and contract disputes. Much of his practice is defending and advising real estate agents in suits by property buyers and sellers, but Marty also defends other professionals, insurance companies, manufacturers, and business owners. Marty has a special interest in all things procedural, because they are the rules of the road for litigators and knowing them better than his opponent gives him a leg up in court.

A recent decision from the Louisiana Third Circuit Court of Appeal re-affirms the merchant liability rules. In Carolyn R. Miller and Steven Rathjen v. Willis Communications, et. al., 19-787 (La. App. 3 Cir. 6/24/20), the plaintiff was an elderly patron of an AT&T store. Plaintiff and her daughter were assisted at the customer service desk, and plaintiff took a seat in a rolling chair. When she attempted to stand up, the rolling chair moved, and she fell to the floor breaking a hip.

Plaintiff filed suit under the merchant’s liability statute, La. R.S. 9:2800.6. Per the statute, if a negligence claim is brought against a merchant by a person lawfully on the merchant’s premises for injuries sustained because of a fall, then plaintiff must prove: 1) that the condition of the merchant’s premises presented an unreasonable risk of harm that was reasonably foreseeable; 2) that the merchant created the risk or had actual or constructive knowledge of the condition; and 3) that the merchant failed to exercise reasonable care to address the unreasonable risk of harm. Plaintiff argued that an unreasonable risk of harm was created when she was given a chair on rollers on flooring allegedly unsafe for use with a rolling chair.

The defendants filed a motion for summary judgment, which was denied by the trial court. The appellate court reversed and entered summary judgment. The appellate court found that the critical element of plaintiff’s burden of proof was missing – any defect in the rolling chair. Plaintiff admitted that the chair was not defective. Instead, she argued that she should not have been given a rolling chair to sit in because of her age, obvious mobility issues, and because the rolling chair was unsafe on the flooring of the store.

Evidence was presented that: 1) plaintiff’s daughter was able to maneuver the rolling chair without incident; 2) the daughter did not believe that plaintiff would have trouble navigating the rolling chair; and 3) no other customer had ever fallen out of one of the rolling chairs. Simply, what occurred at the AT&T store was an accident, for which AT&T and its employees were not responsible. Plaintiff, well aware of her own physical limitations, chose to sit in a rolling chair that she physically was unable to get out of on her own. Based upon this evidence, the court reasoned that plaintiff did not prove that: 1) the rolling chair posed an unreasonable risk of harm; or 2) the merchant possessed actual or constructive knowledge of any defect.

Following decisions which imposed harsh standards upon retailers, the Louisiana Legislature adopted the merchant’s liability statute to limit recovery to cases involving true negligence. The Carolyn R. Miller decision demonstrates that the statute is properly used in motion practice to resolve cases where the merchant lacks advance knowledge of the claimed unreasonable risk. Sometimes, an accident is just an accident.

Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense and workers compensation defense. When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband Ryan; or shuffling her two kids to and from dance practice.