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Keogh Cox is proud to announce the placement of a new sign and logo on the exterior of our office building in Baton Rouge, Louisiana.

Keogh Cox’s offices have long been situated in the heart of downtown Baton Rouge in a convenient and historically significant location. Clients, drivers, and passers-by will now be better able to see us, day or night.

In a 68 page decision, the Louisiana Supreme Court in Hayes Fund for the First United Methodist Church of Welsh, LLC, et al. v. Kerr-McGee Rocky Mountain LLC, et al. forcefully explained the role of an appellate court. It is axiomatic that Louisiana appellate courts are courts of review. Louisiana law specifically sets the standard of review an appellate court must apply when reviewing a trial court’s factual decisions (manifest error) or its legal decisions (de novo). According to Hayes Fund, a failure to faithfully apply the “manifest error” standard of review where applicable causes an appellate court to function as a “choice-making court” when its proper role is to serve as an “errors-correcting court.”

The plaintiffs in Hayes Fund alleged that negligence by Kerr-McGee caused two wells to stop producing, leaving valuable assets out of reach. After a lengthy bench trial which spanned a ten-month period and involved over twenty-five days of live testimony, the trial court found that the plaintiffs failed to meet their burden to prove that the defendants caused the loss. Thereafter, the Third Circuit reversed the finding of the trial court as an abuse of discretion.

The Supreme Court reversed and reinstated the ruling in favor of defendants. The Court found that the primary issues in the trial court were factual issues concerning whether the experts were credible or factually correct, thus the “manifest error” standard of review should have been applied.

According to Hayes Fund, the manifest error standard of review is accomplished by undertaking a two-step process which asks: 1) whether there was any factual basis for the trial court’s conclusions; and, 2) whether the findings of the trial court were “clearly wrong.” Applying this test requires the appellate court to do more than “simply review the records for some evidence, which supports or controverts the Trial Court’s finding.” Instead, the appellate court must review the “entire record.” The Court cautioned that an appellate court is not to “re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently.”

Through its conclusion, the Hayes Fund Court provided clear guidance moving forward, stating:

Rarely should a District Court’s choice of expert(s) be found clearly wrong because it is so difficult to find a reasonable basis does not exist for the expert’s opinion relied upon by the District Court. It is destructive to the manifest error analysis for a reviewing Court to make its choice of the evidence rather than look for clear error in the reasonable basis found by the trier of fact. We have tortuously studied this scientific and voluminous record to demonstrate a proper manifest error review.

By its own terms, the Court intends the Hayes Fund decision in to provide “guidance” as to the “proper analysis for the reviewing Court(s).” While the principles discussed in Hayes Fund are not new or novel, the emphasis given by the Court was uniquely passionate and likely to quickly become a focus of future appellate argument and briefing.

“Having a response plan in place before an accident is important. It can improve safety, save time, reduce distraction, and limit exposure.”

It will happen, maybe today, maybe tomorrow, maybe six years from now; but if you are an employer of any size, the call will come, and the co-worker, passerby, or caller- in a panicked voice- will inform you that there’s been an accident. You cannot control what has just happened. You can control what you do about it.While not easy, the first step is certain. Ensure that your worker receives immediate medical care. Shut down the whole plant, or office, or restaurant if you have to. Then, start the process of finding out what happened and why. The process will be much easier if you have a plan in place before the haziness that accompanies an injury. An attorney can help you put a plan in place before the phone rings. Here, we provide a few basic steps to consider. We also outline a few traps and pitfalls built into the dynamics.-Secure the accident site. This may involve barricades, warning tags, and tape.-Consider photographs or video of the scene, if indicated.-Call an attorney. Once the worker’s needs are fully addressed, consult with counsel who will often see things you might miss given their unique training. An attorney can counsel you on how steps taken now can impact later proceedings with an eye towards the proper preservation of evidence, prompt contact with insurance carriers, and a consideration of possible “indemnity” obligations owed to you or by you.-Consider prompt action to ensure there is no re-occurrence until the matter can be fully investigated. While an employer may fear that taking immediate corrective measures could be viewed as admission of fault, an attorney can explain the parameters of the subsequent remedial measure rule that may bar the use of this “evidence” against you.-Decide who will lead the investigation. Chose someone who, while mature and fair, also understands that the occurrence of an accident raises the specter of litigation. This will sometimes be the injured worker’s immediate supervisor.-Identify all witnesses.-Interview all witnesses including the injured worker if they are reasonably able. Ask the who, what, where, when, why questions. Questions may include but will not be limited to the following:-What was the worker doing at the time of the accident?-What were the witnesses doing?-What was the physical condition of the area at the time?-Was this a job the worker was trained to perform?-Was there a procedure being followed at the time? Not followed?-Was the worker wearing appropriate safety gear?-In a slip and fall, what was the condition of the footwear being used?-Was a proper tool or piece of equipment being used?-Was there a problem with the equipment?-Were the action of co-workers or third-parties involved?-Was an unsafe act involved?-Had there been prior warnings or instructions with respect to this act?-Prepare an incident report. This report should outline the basic facts that have been gathered. While the report must be honest and fact-based, an employer should know that this document may be scrutinized at a later date and any admission of fault on the part of the employer, even if premature and incorrect, will likely be cited as an “admission against interest” and self-proving evidence of your liability.-Preservation of evidence. Any destruction of evidence such as documents, photos or videos following an accident may be viewed as suspect and lead to a claim that you are guilty of “spoliation.” In extreme cases, a finding of spoliation can lead a court to enter an adverse presumption or even strip case defenses.-Root cause analysis. This analysis considers how best to prevent the particular brand of accident from ever happening again and sometimes identifies deeper issues that can be corrected to improve overall safety. To their detriment, employers sometimes merge the initial accident investigation and root cause analysis into one step and their desire for immediacy serves to unnecessarily costs them in the defense of an otherwise defensible claim.

“It may be time to consider whether your company is ready to respond when the call comes."