When No Higher Court Remains

In a decision released October 9, 2013, the U.S. Fifth Circuit upheld the grant of the defendants' Motion to Dismiss by concluding that the Federal Power Act ("FPA") preempts property damage claims based in Louisiana state tort law where the alleged damage is the result of operations that comply with the FERC-issued license. Simmons v. Sabine River Authority, No. 12-30494, - F.3d - , (5th Cir. 10/09/2013).

This issue, recognized as a question of first impression in the Fifth Circuit, arose in a case where the plaintiffs, all Louisiana owners and residents of property located downstream from the federally-licensed hydroelectric Toledo Bend Dam situated on the Sabine River, sued Sabine River Authority of Louisiana and various Entergy defendants to recover damages for flooding incidents and to enjoin the opening of the Dam's flood gates in such a way as to cause inundation of the downstream properties.

On behalf of defendants, Keogh Cox moved to dismiss the suit by claiming state tort law claims for damages and injunctive relief interferes with the exclusive authority of the Federal Energy Regulatory Commission ["FERC"] to regulate and control the operations of the federally-licensed Toledo Bend project such that the plaintiffs' claims were preempted under the FPA. The District Court granted the motion after extensive briefing and argument by Keogh Cox attorneys, John P. Wolff, III, Nancy B. Gilbert, Martin E. Golden, and Virginia J. McLin.

In affirming the district court's ruling, the Fifth Circuit recognized U.S. Supreme Court precedent that has interpreted the FPA as "occupying the field of public water use and power generation except for water use rights." As a result, in accord with Ninth Circuit law, it interpreted the general savings clause in the FPA [16 U.S.C. § 821] narrowly to exempt only "a state property law regime [that] enables users of streams and wells to obtain proprietary rights in a continuing quantity of water." The Court also recognized that state damage claims can have the same effect as a state regulation and may serve as a collateral attack on a federal license, such that it refused to interpret the limited savings clause [16 U.S.C. § 803(c)] to permit "state tort law to supplant FERC's exclusive control of dam operations." Because "applying state tort law to set the duty of care for the operation of the FERC-licensed project would 'stand as an obstacle to the accomplishment and execution of the full purposes and objectives' of the FPA," the Fifth Circuit held plaintiffs' state law property damages claims were conflict preempted under the FPA.

That a single federal agency should control public water use and dam operations was noted to be especially appropriate because the Toledo Bend Dam spans Texas and Louisiana state lines and, if not preempted, different causes of action and standards of conduct could have been imposed under the laws of the two states.

Louisiana summers are hot and humid. Suffocating. Temperatures in July and August regularly exceed 100 degrees, but the temperature inside a parked car is even higher. According to the Centers for Disease Control, the inside of a parked car can reach 130 to 172 degrees when the outdoor temperature is between 80 and 100 degrees. Cracking the windows or parking in the shade has little effect. Because it only takes 10 minutes for the interior temperature of a parked vehicle to rise 20 degrees, children and animals left alone for “just a few minutes” are at risk. On average, 37 children and hundreds of pets die of vehicular heat stroke each year. In an effort to address this problem, the Louisiana Legislature recently passed a law to encourage action.The Legislature enacted two statutes to provide immunity from claims of property damage or trespass for any person causing damage to a motor vehicle while rescuing a minor or animal in distress. La. R.S. 37:1738 et seq. provides immunity if the person:

1. Makes a good-faith attempt to locate the owner before entering the vehicle.
2. Contacts local law enforcement, the fire department, or calls 911 before entering the vehicle.
3. Determines that the vehicle is locked and has a good-faith belief that there are no other reasonable means for the minor or animal to be removed from the vehicle.
4. Believes that removal of the minor or animal from the vehicle is necessary because the minor or animal is in imminent danger of suffering harm.
5. Uses force that was reasonably necessary under the circumstances to enter the vehicle.
6. Places a notice on the windshield of the vehicle providing details of the person’s contact information, the reason entry was made, the location of the minor or animal, and notice that the proper authorities have been notified.
7. Remains with the minor or animal in a safe location reasonably close to the vehicle until emergency responders arrive. If the person cannot remain with the minor or animal, the person must do the following:
8. For a minor: notify local law enforcement, the fire department, or the 911 operator and take the minor to the closest police station or hospital.
9. For an animal: notify local law enforcement, the fire department, animal control, or the 911 operator and take the animal to the closest shelter.

One wonders if a person reacting in an emergency will remember to leave a detailed note or to make the call before they act. If they do not, the immunity may be lost because immunity statutes are strictly construed in Louisiana. Also, the immunity does not apply to bodily injuries suffered by a minor during the rescue activities.So, if you see a child or animal in danger in a hot car, the law now allows you to act with immunity, maybe.

The “open and obvious” defense remains alive and well in Louisiana according to an article penned recently by Professor John M. Church of the LSU Law Center for the Louisiana Association of Defense Counsel. In April 2013, the Louisiana Supreme Court announced Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), 113 So.3d 175, which muddied the waters regarding use of the “open and obvious” defense. Some read Broussard as a pronouncement that the “open and obvious” defense was essentially dead in Louisiana. However, as reflected in Professor Church’s article, subsequent Louisiana Supreme Court decisions have given new life to the defense.

The defense is based upon the premise that an “open and obvious” defect is non-hazardous, because a reasonably-attentive plaintiff could or should have avoided the harm in the exercise of due care. Before Broussard, courts routinely ruled that a defendant owed no duty to a plaintiff when the alleged defect was “open and obvious.” Following Broussard, courts began to shift the analysis from a question of duty (an issue of law) to a factor that should be considered when analyzing a potential breach of that duty (an issue of fact). As such, some courts concluded that the defense was not properly addressed at the summary judgment stage.

In October 2014, the Supreme Court appeared to alter course when it affirmed a summary judgment granted on grounds that the alleged defect presented an open and obvious condition. See Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), — So.3d — 2014 WL 5394087. In reaching this decision, the Bufkin Court focused on the duty element of plaintiff’s case, which seemingly contradicted prior interpretations of Broussard. Thereafter, the Court went even further, affirmatively stating that “[a]ny reading of Broussard interpreting it as a limit on summary judgment practice involving issues of unreasonable risk of harm is a misinterpretation of the Broussard case.” Allen v. Lockwood, 2014-1724 (La. 2/13/15), 156 So.3d 650.

According to Professor Church, Bufkin and Allen reflect a shift back to an analysis of the open and obvious defense on the duty level and remove any doubt regarding whether summary judgment is appropriate in this setting. Professor Church anticipates that the Supreme Court will continue to clarify this doctrine in future decisions. For now, Broussard remains an obstacle, albeit shrinking, in the defense of trip and fall claims.

Author: C. Reynolds LeBlanc