When Buying a House with a Flooding History, Let the Buyer Beware

In Hawkins v. Hi Nabor Supermarket, LLC, the First Circuit recently affirmed summary judgment in favor of Hi Nabor finding that Hi Nabor could not be liable to the plaintiff for injuries she allegedly sustained when she tripped and fell over a stocking cart while she was shopping in its store.^

The plaintiff claimed the stocking cart created an unreasonably dangerous condition that was foreseeable to the defendant. Hi Nabor filed a motion for summary judgment in response and attached affidavits of its employees, the store’s surveillance video of the incident, and excerpts of the plaintiff’s deposition.

The plaintiff failed to timely oppose Hi Nabor’s motion and then filed a motion for leave to file a late opposition. However, she did not attach or file any documents or exhibits in support of her opposition. The trial court granted Hi Nabor’s motion, and the plaintiff appealed the decision. On appeal, the plaintiff argued (1) summary judgment was granted “solely because an opposition was filed late” and (2) there was in sufficient proof that movers were entitled to judgment.

In response to the plaintiff’s first argument, the Court addressed the plaintiff’s failure to file an opposition to the defendants’ motion. See our prior blog for analysis of the impact of a party’s failure to timely oppose a motion for summary judgment here. The Court noted that a failure to timely oppose a motion for summary judgment does not automatically require that the motion be granted. However, if the mover meets its burden in its motion, and the plaintiff fails to file an opposition, the motion should be granted.

The court examined whether the defendant met its burden to support its motion in response to the plaintiff’s second argument. The Court found the defendant produced evidence to show that the stocking cart did not present an unreasonably dangerous condition such that liability could not attach.

The Court found that “stocking carts are necessary and useful in grocery stores to restock shelves, and that their common use and obviousness to a shopper make any risk slight.”* Further, surveillance video showed the size of the stocking cart (its’ tall sides were approximately the height of the plaintiff), the placement of caution cones around the stocking cart and the Plaintiff's interactions with the cart prior to the accident.

In light of the evidence filed in support of its motion, the Court found Hi Nabor met its burden of proof to show that plaintiff could not establish the stocking cart presented an unreasonable risk of harm that was reasonably foreseeable. When the plaintiff failed to produce evidence to meet her burden of showing genuine issues of material fact regarding whether the cart presented an unreasonable risk of harm, summary judgment was properly granted. The Court's decision highlights the importance of procedural requirements and reaffirms the principle that mere allegations of danger are insufficient and cannot defeat summary judgment without substantive proof.

References:

^Hawkins v. Hi Nabor Supermarket, LLC, 2023-0978 (La. App. 1 Cir. 2/23/24), 2024 WL 743080.

*Citing Russell v. Morgan's Bestway of Louisiana, LLC, 47,914 (La. App. 2 Cir. 4/10/13), 113 So. 3d 448, 453.

Ina recent case involving Keogh Cox attorneys, the Eastern District of Louisiana in MichaelBrander, Jr. v. State Farm Mutual Auto. Ins. Co., Civ. A. No. 18-982(Feb. 14, 2019), 2019 WL 636423 barred testimony of substantial projectedmedical expenses because it was not based on a reliable methodology. Thisruling stands to impact many other cases where plaintiffs seek to usefar-reaching projections of a life-long need for radiofrequency ablations("RFAs") or other pain-management modalities to "board" sixand even seven-figure numbers for future medical expenses.

InDaubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), theUnited States Supreme Court recognized the trial judge as the “gatekeeper” of expertopinion testimony and held that only reliable and relevant expert opinions maybe admitted. The reliability requirement serves to keep expert opinions“outside the gate” when they constitute unsupported speculation or meresubjective belief; only scientifically valid expert opinions are allowedinside. To ascertain whether an expert opinion is scientifically valid, Daubertinstructs the trial court to consider:

∙ whether theexpert’s theory can or has been tested;

∙ whether it hasbeen subject to peer review and publication;

∙ the known orpotential rate of error when applying the theory;

∙ applicablestandards and controls; and,

∙ the degree towhich the theory has been generally accepted in the scientific community.

InBrander, the plaintiff advanced medical testimony that he would needRFAs every year of his expected lifetime, a period of 36 years. The courtdisallowed the testimony, noting that the plaintiff’s physicians had less thanten years personal experience in administering RFAs to patients, the medicalliterature only considered the effectiveness of RFAs over a span of seven toten years, and there was no showing that the 36-year treatment plan was ingeneral acceptance by the medical community. According to the court, theexpert opinions offered by plaintiff failed Daubert “on all points.” Asa result, the plaintiff was permitted to introduce testimony of future RFAs foronly a seven-year period.

The reasoning of Brander may be equally applicable to projections of lifetime treatment involving other medical procedures, such as medial branch blocks, Botox injections, or spinal cord stimulators, for which the long-term efficacy has not been firmly established in the medical literature. Opinions unsupported by personal treatment experience and peer-reviewed medical studies are not scientifically valid and are properly halted “at the gate.”

Nancy B. Gilbert is a partner with Keogh Cox in Baton Rouge, Louisiana. She is a puzzle-solver by nature, and specializes in providing clear and in-depth analysis of complex litigation issues.

The Louisiana Supreme Court recently held that an insurance agent's negligent handling of a claim did not justify an award for mental anguish in Prest v. Louisiana Citizens Property Corp., 2012-0513 (La. 12/4/12). In Prest, it was alleged that the agent negligently failed to process a request for increased insurance sent more than 10 days prior to Hurricane Katrina.

Based upon representations from their agent, plaintiffs believed their property was insured up to the requested amounts for Katrina-related damages. However, the insurance company denied the additional coverage because the request for additional coverage was not reviewed.

The plaintiffs filed suit and settled the claim for insurance benefits. They reserved in the settlement the right to pursue a negligence claim against their insurance agent and took that claim to trial.

At trial, the Trial Court found the agent negligent and awarded damages to include a $75,000 award for "frustration, inconvenience and mental anguish." The Fourth Circuit affirmed. The Supreme Court likewise upheld the finding of negligence. However, it reversed the award for mental damages.

Generally, if a defendant's conduct is merely negligent and only causes mental disturbance without physical injury, the defendant is not liable for damages. Moresi v. State, 567 So. 2d 1081, 1095 (La. 1990). An exception to this rule exists when there is a likelihood of genuine or serious mental distress arising from "special circumstances."

The Supreme Court did not feel that the facts involving the additional insurance created "special circumstances" sufficient to disregard the general rule that emotional damages are not recoverable in the absence of physical injury. In its ruling, the Court acknowledged that the plaintiffs were likely stressed and inconvenienced by the insurer's failure to pay. Nevertheless, the Court did not find that the plaintiffs' stress was any greater than that experienced by a host of Louisiana citizens affected by Hurricane Katrina.