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Sudden Emergency Defense: Now More Dispositive

Published on: September 1, 2015

On August 28, 2015, the Louisiana Supreme Court denied a Writ Application in Leandro Carias v. Vernon A. Loren, et al. This denial signifies that the "sudden emergency" defense may be properly applied at the summary judgment level. The defense in the Carias litigation was handled by Keogh Cox attorneys Gracella Gail Simmons and Collin J. LeBlanc.

In Carias, the defendant operated his 18-wheeler traveling eastbound over the Mississippi River Bridge when, according to his testimony, a "phantom driver" abruptly entered into his lane of travel and forcefully applied their brakes. In the sliver of time allowed, the defendant sought to quickly determine if he could safely move from his lane of travel. Incorrectly, he believed that there was sufficient space in the lane to his right and impacted a truck in that lane. In turn, that vehicle rear-ended the plaintiff.

A Motion for Summary Judgment was filed and won based upon the sudden emergency defense, which provides that one is not negligent when they fail to take reasonable measures to avoid an accident when they were presented with: 1) a sudden emergency; 2) which was not of their making; and, 3) which did not allow sufficient time for deliberation. In opposition to the Motion, the plaintiff cited testimony that the defendant was "following too closely," and contended that the defendant was therefore at fault and unable to seek the protections of the defense. In response, it was argued that whether the defendant driver allowed sufficient space between his vehicle and the vehicle to the front was non-material when it was the actions of the phantom driver which exclusively created the sudden emergency.

Plaintiff appealed the grant of summary judgment to the Louisiana First Circuit. Prior to Carias, the Louisiana First Circuit had questioned whether the sudden emergency defense could ever be used at the dispositive motion stage. On this subject, the Louisiana First Circuit stated as follows in Manno v. Gutierrez, 05-0476 (La. App. 1st Cir. 3/29/06); 934 So. 2d 112, 117-118: "while we cannot say that it would never be possible to apply the doctrine on a motion for summary judgment, our research has disclosed no cases from this court that have so applied it, and by the nature of the sudden emergency doctrine, it would seem rarely appropriate on a motion for summary judgment." Nevertheless, the First Circuit upheld the Carias summary judgment finding that, unlike earlier cases, there was no conflicting testimony regarding the defendant's lack of opportunity to assess the situation or take other evasive actions.

In the Writ Application to the Supreme Court, the plaintiff cited to a "split in the Circuits" concerning whether the sudden emergency defense may be used at the summary judgment stage.　 In response, it was argued that the decades of jurisprudence following the Louisiana Supreme Court’s establishment of the sudden emergency defense in Hickman v. Southern Pacific Trans. Co., 262 La. 102, 113-114, 262 So.2d 385, 389 (1972) demonstrate that the lower courts have not struggled with this doctrine and that nothing in Hickman nor the Summary Judgment Article prevent a consideration of the sudden emergency defense through motion practice.

As a practical matter, summary judgment may still be difficult to obtain in the context of the sudden emergency defense because of the highly factual context into which the defense is often sought for application. Nevertheless, after Carias, it appears likely that there is no legal prohibition to the use of the doctrine in support of a dispositive Motion for Summary Judgment

Written by:

Gracella Gail Simmons and Collin J. LeBlanc

Posted by:

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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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The Louisiana Supreme Court rules that amount billed by healthcare providers beyond what has been paid by a Workers Compensation insurer is NOT a collateral source that is recoverable against tort defendants

In a very important ruling by the Louisiana Supreme Court, a tort defendant is no longer liable for any “actual charges” by medical providers above the amount paid by a Workers Compensation insurer pursuant to promulgated Workers Compensation fee schedule . In Simmons v. Cornerstone Investments, LLC, 2018-cc-0735 (La. 5/18/19), the court concluded:

“…the amount of medical expenses charged above the amount actually incurred is not a collateral source and its exclusion from the purview of the jury was proper.” See http://www.lasc.org/opinions/2019/18-0735.CC.OPN.pdf

The court conducted a detailed analysis of the development of the collateral source rule under applicable jurisprudence noting that the genesis of the collateral source rule:

“Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff’s tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. Under this well-established doctrine, the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer.” See Louisiana Dept. of Transp. & Dev. v. Kansas City Southern Railway Co., 02-2349, p. 6 (La. 5/20/03), 846 So.2d 734, 739.

Essentially, the court asks two questions when assessing whether the collateral source rule should apply. First, does the claimed benefit arise from some payment, wage deduction or other contribution by the Plaintiff that would diminish the plaintiff’s patrimony? Second, will the goal of tort deterrence be promoted by allowing the windfall? In a series of cases culminating in the case at bar, the court has been limiting the application of the collateral source rule in a number of contexts.

The court in Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, found that the collateral source rule did not apply when Medicaid was the payor such that the defendant could not be responsible for any amounts above what Medicaid paid to the provider. The court reasoned that it would be “unconscionable” to require taxpayers to pay the bills and then let a plaintiff recover the full undiscounted medical expenses and “pocket the windfall.” The court continued by noting in “Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945, this court found the collateral source rule did not apply to prevent the plaintiff’s uninsured motorist carrier from receiving a credit for workers’ compensation benefits paid by her employer, even though the plaintiff paid for the UM coverage herself.” In Hoffman v. 21st Century North American Ins. Co., 14-2279 (La. 10/2/15), 209 So.3d 702, the court held that the collateral source rule does not apply to attorney-negotiated medical discounts. The court also looked at the US 5^th Circuit in Deperrodil v. Bozovic Marine, Inc., 842 F.3d 353 (5th Cir. 2016), that the collateral source rule does not apply above any amounts actually paid by the employer in the context of the LHWCA.

In each of the instances outlined, the court noted that the patrimony of the plaintiff was not impacted by limiting recovery to the amount of medical bills actually paid. Moreover, the court noted that the goal of tort deterrence is not negatively impacted, and that allowing a plaintiff to recover a windfall in this context is tantamount to an award of punitive damages that are not recoverable absent statutory authority which is not present in this context. The Simmons decision now extends that same logic to cases where a Workers Compensation insurer has paid the medical benefits pursuant to the Louisiana Workers Compensation Law.

This ruling will have significant impact on the evaluation, settlement and trial of tort cases that have corresponding Workers Compensation claims.

Submitted by John P. Wolff, III (Partner)

Insight

Parish Finds Debris Clean-Up Doesn't Come For Free

The Louisiana Supreme Court has ruled that St. Tammany Parish must pay for hurricane clean-up services even though it had no formal contract with the party that did the work. See USA Disaster Discovery, Inc. v. St. Tammany Parish Government, 2013-0656, -- So.3d ---.

Fallen trees and loose debris were familiar sights across Louisiana in the aftermath of Hurricane Katrina. Immediately after the storm, emergency protocols were followed to rescue those trapped in their homes or in other buildings. To perform search and rescue, trees and debris had to be cleared. This duty fell to the Sheriff's office under St. Tammany's emergency operation plan. However, neither the Parish nor the Sheriff's office had the necessary resources. Therefore, the Parish contracted with various entities to help clear the debris.

Two individuals, acting as a joint venture, approached a representative of the Sheriff's office and volunteered to assist in the removal of the debris. Although these individuals did not have a contract with the Parish, they were "confident" the Parish would pay them for their services. As such, they went to work with no assurance of payment. The confident volunteers later sent bills to the Parish and the Sheriff's office, but both refused to pay.

The joint venture incorporated itself as USA Disaster Recovery, Inc. ("USA") and sued the Parish and Sheriff to collect the unpaid bills. The trial court found that USA provided the Parish with valuable services following the storm. Under a theory of "unjust enrichment," it held that the Parish had to pay for the work.

The Supreme Court's recent ruling reaffirmed the five elements necessary to show that one party was "unjustly enriched" through the action of another, namely:

1) an "enrichment" of one party;

2) an "impoverishment" of the other;

3) a connection between the enrichment and the impoverishment;

4) no justification or cause for the enrichment and the impoverishment; and,

5) no other legal remedy available to the plaintiff.

On appeal, the appellate court examined the facts and held that unjust enrichment was not available because USA did not factually demonstrate criteria #2, #4 and #5. In short, the appellate court found that USA did the work at its own risk, knowing that payment was not guaranteed. Therefore, its "impoverishment" was not established.

The Supreme Court disagreed and reinstated the trial verdict. An appellate court is to review a trial court's factual findings under a "manifest error" standard. In USA Disaster, the Supreme Court held that the appellate court incorrectly substituted its own factual findings for those of the trial court. As a result of the deference to be given to a trial court's findings of fact, the "volunteers" in USA Disaster were rescued by an uneasy application of the unjust enrichment doctrine.

Insight

Court Finds University Not Liable for Criminal Act of its Student

A Louisiana court recently granted a motion for summary judgment in a case involving third-party criminal activity on a university campus. The motion initially was denied, but the Louisiana Supreme Court remanded the motion for reconsideration in light of its ruling in Evans v. Abubaker, Inc. After considering Evans in the context of a claim brought against an institution of higher learning, the court found Grambling University had no duty to provide additional security measures and could not have done anything within its scope of duty to prevent the murder of one of its students. See Augman v. Grambling State University.

In Augman, the plaintiff’s son, a student at Grambling University, was fatally shot at a party on the Grambling campus by another Grambling University student. The established facts confirmed the social gathering was on campus, that alcohol was consumed at the party, and that guns were present. In applying Evans to a higher education context and granting Grambling University’s Motion for Summary Judgment, the Third Judicial District Court reasoned:

There are allegations of breached policies by Grambling, i.e., allowing alcohol consumption on campus, allowing a pop-up party, and not searching for weapons in all the dorm rooms. Despite those allegations, there is no evidence presented in this summary judgment that shows that by following any of those policies to the T, Grambling would have prevented this incident. Likewise, the evidence presented on summary judgment does not show that there are additional security measures that Grambling could have taken to prevent this tragedy.

There is no indication Grambling had any duty to provide any additional security measures in this case. Likewise, there is no evidence presented that Grambling could have done anything within its duty or scope of duty, analyzed with regard to Evans, to prevent this tragedy.

The Louisiana Supreme Court’s opinion in Evans explained that preventing third party criminal activity by someone who intentionally engages in criminal conduct is not within the scope of duty of a business owner. The Evans court held, “Some risks that arise because of a defendant’s conduct are not within the scope of the duty owed to a particular plaintiff because they are unforeseeable.” Augman applied Evans’ reasoning in a higher education/alleged negligence on campus context and dismissed the claims brought against Grambling University because preventing the shooting of one student by another student on its campus was not within Grambling’s scope of duty.

Just one month after the Augman ruling, the Louisiana Supreme Court issued the opinion of Campbell v. Orient-Express Hotels Louisiana, Inc. For more detailed analysis of this case, see a July 28, 2025, Keogh Cox blog by John P. Wolff III. In Campbell, the Supreme Court did not modify the duty/risk analysis but clarified the separate analyses of “duty” and “scope of duty”, concluding that the scope of the duty owed by the defendant hotel did not encompass the risk of the harm and injury suffered by the plaintiff. Again, the Campbell Court focused on “foreseeability” of the criminal activity and considered evidence that the plaintiff’s own actions placed him in the path of peril.

The Louisiana Supreme Court’s reasoning in Campbell echoes its decision in Evans, suggesting that the issue of “scope of duty” for third-party criminal activity on university campuses analyzed in Augman would apply in cases involving claims against other institutions of higher learning as well.

References:

Evans v. Abubaker, Inc., 2023-00955 (La. 5/10/24), 384 So.3d 853.

Augman v. Grambling State University, Third Judicial District Court, Parish of Lincoln, Supplemental Summary Judgment Ruling with Reasons for Ruling, Feb. 07, 2025.

Campbell v. Orient-Express Hotels Louisiana, Inc., 2024-00840 (La. 3/21/25), 403 So.3d 573.