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Louisiana Supreme Court Now Allows Direct Negligence Claims Against Employer

Published on: July 1, 2022

In a previous blog, we outlined developing law in the Louisiana appeals courts, and federal district courts in Louisiana on the issue of whether a claimant may maintain a separate cause of action against an employer for independent negligence when it is stipulated that the employee was in the course and scope of employment.1 Most courts held a claimant could not maintain a separate action against the employer under these circumstances, reasoning that the employee’s fault would impute to the employer, and therefore, additional inquiry was not appropriate. However, the Louisiana Supreme Court recently addressed the issue and stated:

“(A) plaintiff may pursue both a negligence cause of action against an employee for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, when the employer stipulates that the employee was in the course and scope of employment at the time of the injury.” (Emphasis added) See Martin v. Thomas et al., 21-1490 (La. 12/21/21), 328 So. 3d 1164.

This holding notably overturned the 1st Circuit Court of Appeal ruling in Elee v. White, - - So.3d - - (La. App. 1 Cir 7/24/20), 2020 WL 4251974 and other Louisiana 5th Circuit Court of Appeals decisions. The Supreme Court in Martin reasoned that “the initial assessment of fault required by the law is not bypassed due to the employer-employee relationship” and “shielding a potential tortfeasor from liability is not compatible with a comparative negligence regime.” The Court further stated that the possibility that both the employee and employer may be at fault is not “subsumed” by the employer’s admission on course and scope. In fact, if the fault of the employee is shown, then the issue of whether there is also fault on the part of the employer remains and must be decided by the evidence on a case-by-case basis.

The consequences of this decision remain to be seen, but it is expected that claimants may also pursue employers separately on theories such as negligent hiring, supervision, and entrustment. The scope of such discovery will remain within the sound discretion of the trial judge.

By: John P. Wolff, III and Richard W. Wolff

1Louisiana Appeal Courts Prohibit Direct Negligence Claims Against Employer; US District Court Uses Rule to Limit Discovery - Keogh Cox

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Keogh Cox & Wilson, Ltd. provides this blog as a public service for general information only. The materials contained herein may not reflect the most current legal developments or even express the opinion of all or even most of Keogh Cox attorneys. Such material does not constitute legal advice or form any attorney-client relationship. Keogh Cox and all contributing author(s) expressly disclaim all liability to any person with respect to the contents of this Web site and Blog and expect that no reliance will be made upon the information provided.

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Trees and Neighbors: A Growing Problem

Louisiana is a river delta state filled with fertile land and the refusal of its local fauna to stay within boundaries is a problem. Trees create hazards. They also bring nuisance in all its forms––pine sap drizzled over a new car, an oak branch casting a sun-blocking shadow over the perfect tanning spot, and on and on. If you own the tree, the problem is easy enough to address; but what if the tree belongs to your neighbor? Can you cut your neighbor’s tree?

While the Louisiana Civil Code provides guidance, it does not answer every question. Under the Civil Code, “a landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.” La. Civil Code Art. 688. Nevertheless, the right to "demand" that the problem be addressed is not a “license to cut;” and does not permit a landowner to cut without permission. Kahl v. Luster, 110 So.3d 1101 (La. App. 1 Cir. 12/28/12).In the event a neighbor is less than neighborly and refuses to trim back a trespassing branch, a landowner may bring an "injunction" against his neighbor. Such an action was involved in Scott v. Ramos, 399 So.2d 1266 (La. App. 4 Cir. 1981) where the defendant/neighbor's large oak tree extended over the plaintiff's property and deposited leaves and branches onto his roof and into his yard. In defense of the action, the defendant presented evidence that cutting the tree back to the property line would essentially kill the tree. Over these objections, the Louisiana Fourth Circuit Court of Appeal granted plaintiff a permanent injunction which required the defendant neighbor to “keep the tree, its limbs and branches cut” back to the property line. Further, the court ordered that defendant reimburse the plaintiff for the cost of removing leaves and fallen debris once a year.So, should your neighbor’s tree ever present a hazard or impede on the enjoyment of your property, there are means of relief. However, gassing up your chainsaw, without your neighbor’s permission, is not one of them.

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The Results Are In

Keogh Cox's recent blog entry "Did I pass?" looked at recent changes to the Louisiana attorney's "bar" examination and discussed the negative impact these changes seem to be having on the bar passage rate. Since that post, the results from the July, 2013 exam were released, and they are not good. In fact, the overall passage rate (53.34%) was among the lowest ever for a July examination.

By way of recap, on October 19, 2011, the Louisiana Supreme Court ordered the implementation of the first changes to the grading standards of the Louisiana Bar exam since the exam was instituted. These changes: began "compensatory scoring;" eliminated essay portions of the test; included "multiple choice" format portions; doubled the score value of the "Code subjects;" ended the "conditional failure" status; and, placed a five-time limit on unsuccessful attempts to pass.

The following reflects how the graduates of various law schools fared in the recent exam:

SCHOOL # PASSED FAILED

LSU 171 120(70.18%) 51(29.82%)

LOYOLA 203 115(56.65%) 88(43.35%)

SOUTHERN 154 53(34.42%) 101(65.58%)

TULANE 88 56(63.64%) 32(36.36%)

OTHER 147 63(42.86%) 84(57.14%)

TOTAL 763 407(53.34%) 356(46.66%)

The consistent decline in the overall applicant passage rate since the recent changes suggests that these low numbers can no longer be regarded as a coincidence.

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Court Examines Requirements of Financing Provision in Purchase Agreement for  Residential Property

Purchase agreements for residential property routinely include financing provisions that require the buyer to show that he has applied for a loan. The Louisiana Fourth Circuit Court of Appeals recently analyzed such a provision in Abdelqader v. Ramos. The plaintiff in Abdelqader entered into a purchase agreement with the defendant for an unimproved lot on which the plaintiff planned to build his home.

The financing provision in the purchase agreement required the buyer to provide the seller with (1) written documentation; (2) from a lender; (3) that a loan application has been made; and (4) that Buyer authorized lender to proceed with the loan approval process. The provision also required that this documentation be provided to the seller “within 3 calendar days after” the date of Agreement.

After the parties executed the purchase agreement, various disputes led the seller to terminate the agreement and re-list the property for sale. The plaintiff sued for stipulated damages and attorney’s fees, which were allowed under the contract if either party breached the purchase agreement.

The buyer introduced evidence that his agent sent the seller’s broker a USDA pre-approval letter and certificate of eligibility for financing under a USDA Rural Development Program. These documents were sent to the seller’s agent before the parties executed the purchasing agreement. Generally, such pre-approval letters show the buyer appears qualified for a loan in the amount of the purchase. They do not confirm a loan was applied for or approved by the lender for the property to be purchased.

The seller argued that the pre-approval letter furnished by the buyer before the parties entered into the purchase agreement was not an actual loan application and did not verify that a loan application for the purchase had been made. The seller also argued that the buyer did not comply with the terms of the financing provision because he did not provide the subject documents within the three-day window after the purchase agreement was signed. The court rejected these arguments. The Court found the agreement did not require the buyer to produce his loan application to the seller or that the loan application be dated within three days of the Agreement. The buyer’s lender produced the pre-approval letter and the certificate of eligibility in response to the buyer’s application for financing and pursuant to the buyer’s instruction to proceed with the loan process. Though its ruling may be limited to the facts of this case, the Court found that the buyer complied with the terms of the financing agreement.

It appears the court viewed the seller’s claim that the seller did not comply with the financing provision of the purchasing agreement as after the fact justification for the seller unilaterally terminating the purchase agreement for some unrelated dispute. The Court found that the seller breached the purchase agreement and awarded the buyer stipulated damages of 10% of the contract price and attorney’s fees. This ruling also serves as a reminder that purchase agreements for residential properties are contracts, and breaches of these contracts can have consequences if terminated on a whim.

Reference:

Abdelqader v. Ramos, 2022-0305 (La. App. 4 Cir. 11/30/22), 353 So.3d 750.

John P. Wolff III

Senior Partner
Employer Liability
Louisiana
Louisiana Supreme Court
Injury
Liability