To Err is Human, To Rescind-Declined

The Louisiana Supreme Court recently held that the workers' compensation tort immunity provided by LSA-R.S. 23:1032 does not apply to suits by one volunteer fireman against another volunteer. See Champagne v. American Alternative Insurance Corp., 12-1697 (La. 3/19/13), -- So.3d ---. LSA-R.S. 23:1036 provides that workers' compensation is the sole and exclusive remedy provided to a volunteer fireman against a fire company. Champagne clarified that this immunity does not similarly apply to claims for personal injury brought by one volunteer fireman against another.

The last sentence of LSA- R.S. 23:1036(A) states as follows:

The remedies provided herein shall constitute the exclusive remedy of the volunteer member against the fire company as provided in R.S. 23:1032.

In Champagne, the attorney for the defendants argued that the legislature's incorporation of LSA-R.S. 23:1032 reflected the intent to extend immunity beyond the language provided by LSA-R.S. 23:1036(A). The defendants asserted that this last sentence has internal inconsistencies; the first portion of the sentence "standing in isolation, can be read to limit workers' compensation immunity solely to the fire company, whereas its last phrase specifically incorporates La. R.S. 23:1032, which applies workers' compensation tort immunity to officers and employees of the employer or principal." Defendants further argued that, "to not include co-volunteers as co-employees under La. R.S. 23:1032 is to render the phrase, 'as provided in La. R.S. 23:1032,' superfluous and meaningless."

The Supreme Court disagreed with the defendants' statutory interpretation arguments. The Court stated: "[t]he fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the legislature to enact the law." In assessing the legislative intent, the Court gave a "narrow construction" of the statute because the statute sought to provide immunity in derogation of "the delictual rights of injured workers existing in the Louisiana Civil Code." Under this narrow construction, "every presumption should be on the side of preserving the general tort or delictual rights of an injured worker..."

Utilizing a narrow (or "strict") construction of LSA-R.S. 23:1036, the Court found that the legislature did not expressly provide immunity to volunteer firemen. Further, the Court did not find intent to provide such immunity in the legislative history.

Champagne is not the first time a Louisiana court has commented on the application of Louisiana's Workers' Compensation Law to volunteer firemen. In 1994, the First Circuit held that a volunteer fireman was not an "employee" of the fire district and therefore was not eligible for workers' compensation benefits. See Genusa v. Pointe Coupee Volunteer Fire Dist. No. 4, 93-2214 (La. App. 1 Cir. 10/7/94); 644 So.2d 851. The Genusa Court reasoned that workers' compensation did not apply when there was no employer-employee relationship, and that an employer-employee relationship does not exist without compensation.

The Champagne Court expressed its belief that LSA-R.S. 23:1036 was likely enacted in response to Genusa. However, the statute only granted volunteer members of fire companies "some workers' compensation benefits" and did not change "the law to define a volunteer member... as an 'employee' of the fire company for the purposes of immunity under the workers' compensation law." Emphasis added.

Both the Supreme Court and the appellate court in Champagne observed that a denial of immunity to volunteer firemen "may make members of the community reluctant to act as volunteers at their local department." However, the legislature did not clearly provide for such immunity according to Champagne. It would not be surprising to see the Louisiana legislature address the issue of immunity for volunteer firemen moving forward.

In a case handled by our firm, a Lafayette-based global catering and life support client was sued by an employee based in Dubai for alleged violations of the Americans with Disabilities Act. The jury unanimously found that the employer (1) did not discriminate against the plaintiff because of a disability or (2) retaliate against him because he raised a complaint regarding the alleged discrimination.

The plaintiff had a written contract of employment with a one-year term that automatically renewed if he was not terminated. Upon the contract expiration date, the employer advised plaintiff that the contract would not be renewed for a successive term.

Plaintiff, an Army veteran, suffered from PTSD following his military service and deployment in Iraq. He claimed defendant discriminated against him on the basis of his PTSD, which he claimed as a mental health disability. Plaintiff further claimed that defendant retaliated against him after he complained to his direct supervisor and the head of human resources about the alleged discrimination. To support his case, plaintiff claimed he was not disciplined before his termination and did not receive negative performance reviews during employment. Significant pre-trial motion practice occurred and framed the issues for trial in two ways.

First, the defense learned of actions taken by plaintiff following the termination of his employment that would have provided a legitimate basis for termination had the actions been discovered before he was terminated. The defense argued that evidence of such “after-acquired” misconduct was relevant to credibility and independently relevant to calculate backpay that plaintiff sought, citing McKennon v. Nashville Banner Pub. Co. and McClung v. Hajek. Over defendant’s objection, the Trial Court excluded the evidence as highly prejudicial, instead finding that back pay was an equitable remedy to be decided by the Court in a subsequent evidentiary hearing related to the issue of back pay.

Second, the defense argued that non-certified medical record evidence submitted by plaintiff was hearsay and thus inadmissible to prove a disability. The Court agreed with the defendant and issued a limiting instruction that the jury was not to consider uncertified medical records for the truth of the matter asserted.

At trial, our client presented ample evidence of plaintiff’s performance deficiencies with respect to the vetting of vendors, which jeopardized the employer’s government contracts and the jobs of other employees. The majority of plaintiff’s performance issues arose in Dubai, plaintiff’s key area of oversight. Therefore, it was unbelievable that he would not know of, or take responsibility for, those performance deficiencies. In addition, the language of the written employment contract allowed for non-renewal of the contract. In a unanimous verdict as required by Fed. R. Civ. P. 48, the jury ultimately found that although the plaintiff proved he suffered a disability, he failed to prove discrimination or retaliation under the Act.

References:

Staples v. Taylor International Services, Inc., et al., 6:20-cv-00192-RRS-CBW.

McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 361–62, 115 S. Ct. 879, 886, 130 L. Ed. 2d 852 (1995).

McClung v. Hajek, 79 F.3d 1145 (5th Cir. 1996).

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.