Blog
Explore news, articles, outcomes, and legal resources by category or practice area.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
deselect
No items found...
Insight
Supreme Court Rules Against Broad Application of Indemnity Provision in Engineer’s Contract
The Supreme Court ruling in Couvillion Group, LLC v. Plaquemines Parish Government, 2020 -00074 (La. 4/27/20) is a reminder that an indemnity claim must be sufficiently related to the principal demand and that contract indemnity provisions are to be strictly construed.
In Couvillion, the general contractor sued the owner of a public works port project for contract delay damages resulting from a cease work order issued to allow redesign of a fuel tank platform. When the contractor submitted its delay claim, the owner requested that its project engineer review it and make recommendations. The engineer recommended payment of a little over $1 million dollars. When the owner refused to pay, the contractor sued. In response, the owner filed a third-party demand against the engineer alleging that its recommendation was erroneous and excessive and that, if it was bound by the engineer’s recommendation, then the engineer must indemnify the owner.
On behalf of the engineer, Keogh Cox attorneys argued that the engineer should not be required to reimburse the owner for any delay costs and asked for dismissal through an exception of no cause of action. Code of Procedure Article 1111 provides that a defendant in a principal action may bring in any person who may be liable to him for all or part of the principal demand. Here, that was not the situation. The engineer was not liable to the owner for any part of the contractor’s delay claim because the engineer did not cause the delay. The delay damages were incurred before the engineer made a recommendation for payment. The events giving rise to the two claims were separate and distinct: the main demand arose from the project delay and the third- party demand arose from the engineer’s recommendation of the claim amount. The Court commented that the principal claim against the owner for delay damages was too attenuated from the owner’s claim against the engineer, thus the third-party demand was improper.
The owner also relied on the indemnity provision in the engineer’s contract that required the engineer to indemnify the owner against any and all claims for personal injury or “damages to property” that may arise from its services. The Court held that the plain meaning of the term did not include the economic-only losses related to the subject delay claim. The Court further reasoned that indemnity agreements are to be strictly construed, rejecting the owner’s broader interpretation.
Contracts
Engineers
Supreme Court
Insight
Medical Malpractice: Can failure to communicate test results be medical malpractice?
The Louisiana Fourth Circuit Court of Appeal recently considered a medical malpractice case with an unusual set of facts. Rather than the standard medical malpractice case, where a patient argues that he was misdiagnosed and/or claims that the doctor made a mistake when administering medical treatment, in Dufreche v. Jeffery Wayne Coco, MD and Internal Medicine Specialists, Inc., 2020-CA-0030 (La. App. 4th Cir.), the patient alleged that his doctor committed malpractice by failing to communicate test results.
In Dufreche, the patient showed signs of an HIV infection. He was tested twice before being treated by the infectious disease specialist. Both tests were negative. During his examination, the infectious disease doctor thought it was unlikely that the patient had HIV, but tested him anyway at the patient’s insistence. According to the patient, he was notified by the doctor that he would be provided the results upon receipt.
Unfortunately, the test results showed that the patient was HIV positive; however, he was not contacted. Fifteen months passed, during which the patient was unaware that he was HIV positive. Because he was not contacted, he assumed he was negative. When testing by another physician showed he was positive, the patient/plaintiff filed suit to recover damages allegedly suffered through a delay in treatment and psychological shock, including a claim for “emotional distress.”
To recover, the patient was required to establish: 1) the standard of care; 2) breach of that standard of care; and 3) that the breach caused his emotional distress. At trial, the doctor testified that he required his patients to follow up in person to receive test results, and expected the patients to contact his office to schedule an appointment. The court found that expecting a patient to follow up in person to receive sensitive test results was not a breach of the standard of care. However, the evidence established that the patient was not instructed that he must schedule an in-person appointment to obtain his test results.
The Dufreche court agreed with the lower court in finding that a failure to notify the patient of the doctor’s policy was a breach of the standard of care. Further, the court found that the infectious disease specialist, who admitted to a duty to the public to protect them from HIV, had also breached his duty for failing to notify an HIV positive patient of his diagnosis for over fifteen months. The doctor’s failure to communicate the results caused the patient’s emotional distress – resulting in an award of $45,000 in damages.
Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense and workers compensation defense. When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband Ryan; or shuffling her two kids to and from dance practice.
Legal Malpractice
Louisiana
Medical
Insight
“Constructive Knowledge” in Slip and Fall Suits: Time on Your Side
Louisiana’s “slip and fall” statute La. R.S. 9:2800.6 was enacted in response to an elevated burden of proof imposed upon retailers. To recover, a patron must prove both the existence of an unreasonably dangerous condition and that the merchant created or possessed actual or constructive knowledge of the condition. Two recent Louisiana decisions demonstrate that the plaintiff’s burden to show knowledge is often difficult to meet.
In Fountain v. Wal-Mart Stores, Inc., 19-669 (La. App. 3 Cir. 3/18/20), 2020 WL 1307417, Fountain entered the store while it was raining. After shopping for 30 to 40 minutes, he visited the Garden Center and fell in a puddle of water he estimated as 8 inches by a foot and a half. There was no direct evidence Wal-Mart was aware of the alleged defect. Without actual knowledge, Fountain possessed the burden to demonstrate “constructive notice.” To prove constructive notice, the plaintiff must come forward with “positive evidence showing that the damage-causing condition existed for some period to time, and that such time was sufficient to place the merchant defendant on notice of its existence.” Under case facts, the trial court determined that Fountain had not demonstrated this “temporal” element and dismissed the case on motion practice. The dismissal was upheld by the Louisiana Third Circuit.
In Opposition to the Motion for Summary Judgment, Fountain made a three-fold argument. First, he alleged that a Wal-Mart employee told him that the water on the floor came from a lady who shook a broken umbrella in the area. The court held that Fountain’s self-serving testimony and reliance upon a hearsay statement was insufficient to establish notice.
Next, Fountain alleged that a manager’s testimony that a large amount of water was found in the general area showed that Wal-Mart “knew or should have known.” Nevertheless, there was no evidence as to how long the water had existed on the floor.
Finally, Fountain cited to video surveillance showing that numerous persons could have tracked water into the area. Distinguishing cases where employees had worked in the precise area of the hazard, the Fountain court stated “our de novo review of the record reveals Mr. Fountain failed to present evidence as to length of time the puddle was on the floor prior to the accident. Therefore, he did not carry his burden of proving that Wal-Mart had constructive knowledge of the condition.”
Similarly, in Bryant v. Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir. 3/17/20), 2020 WL 1270963, summary judgment was upheld where the plaintiff lacked positive evidence of how long the condition (a few spots of water) existed prior to the accident. The plaintiff argued that an employee who used the restroom approximately five minutes before was the most likely cause of the alleged hazard. However, this argument was rejected as “mere speculation.”
In these cases, whether an unreasonably dangerous condition is present is a critical issue. However, as seen in Bryant and Fountain, how long the condition existed is sometimes just important. In many cases, time is not on the plaintiff’s side.
Tori works toward efficient, cost-effective resolution strategies, whether in or out of the courtroom. When she is not in the office or in a courtroom, she can be found with her husband and two kids at ballfields, ballet recitals or her local church.
Evidence
Injury
Constructive Notice
Slip and Fall
Insight
Novel Coronavirus Breeds Novel Litigation: Business Interruption Suits in the Age of COVID-19
The nation’s first suit seeking a declaration of coverage under a commercial property policy for business interruption and extra expenses incurred as a result of COVID-19 was filed in a Louisiana state court on March 20, 2020. Since then, similar suits have been filed across the nation by restaurants, casinos, dentists, dive shops, movie theatres, repertory theatre companies, etc. Clearly, the same coverage issues raised in the Louisiana case will be litigated throughout the nation.
The suit in Cajun Conti, LLC, et al v. Certain Underwriters at Lloyd’s, London, et al, Suit No. 2020-02558, was filed on March 16, 2020, in the Civil District Court for the Parish of Orleans, State of Louisiana. Plaintiffs, doing business as Oceana Grill, a restaurant in the French Quarter, allege coverage should be declared to exist because: 1) the property policy is an “all risks” policy such that all risks are covered unless the insurer can clearly and specifically establish an exclusion from coverage; 2) the policy does not contain any exclusion “for losses from a virus or global pandemic;” 3) the virus has “physically impact[ed] public and private property” as it “physically infects and stays on the surface of objects or materials, ‘fomites,’ for up to twenty-eight days;” 4) such “contamination … [is] a direct physical loss needing remediation;” and, alternatively and in addition, 5) the current and future state orders limiting its operations serve to trigger the civil authority provisions of its policy.
A key issue in Cajun Conti as well as in the other COVID-19 business interruption coverage litigation will be whether the existence of the novel coronavirus constitutes a “direct physical loss or damage” under the intendment of an all risks property policy. The Cajun Conti plaintiffs cite to Widder v. Louisiana Citizens Prop. Ins. Corp., 2011-0196 (La. App. 4 Cir. 8/10/11), 82 So.3d 294, writ denied, 2011-2336 (La. 12/2/11) for the premise that the existence of a hazardous condition that renders the insured property unusable or uninhabitable is sufficient to constitute a “physical loss or damage” sufficient to trigger coverage. Notably, in Widder, the actual presence of inorganic lead in the insured property was confirmed to exist and coverage was therefore available. Because policyholders have the burden to establish the existence of “physical loss or damage,” reliance on Widder may require the Cajun Conti plaintiffs to establish coronavirus was actually present in their property or that its presence otherwise caused their property to be unusable or uninhabitable. Presence in the community may not be sufficient to prove the coronavirus made the insured property uninhabitable or unusable.
One of the items of proof required for the triggering of coverage under the civil authority provisions of a commercial property policy is that the alleged business loss was caused by an action by the civil authority that prohibited access to the insured premises. Relying on out-of-state jurisprudence, one Louisiana federal court has determined this factor requires proof that access to the insured premises be “actually and completely prohibited,” which is not satisfied if the access is merely “limited or hampered.” Kean, Miller v. National Fire Ins. Co. of Hartford, C.A. No. 06-770 (M.D. La. Aug. 29, 2007), 2007 WL 2489711, *4-*6. The state orders expressly referenced in the Cajun Conti suit would appear not to satisfy this standard as they served only to limit occupancy and required earlier closures. Even the subsequent stay-at-home orders [Proclamation Number 33 JBE 2020 and 41 JBE 2020, issued respectively on March 22, 2020 and April 2, 2020], may likely be insufficient to satisfy this requirement as they do not expressly mandate closure of restaurants, but simply require restaurants to “reduce operations to continue minimum contact with members of the public,” expressly allow for curbside delivery, drive-thru, and delivery services, and only prohibit the consumption of food and beverages on site.
The specific facts of each business interruption claim and the terms of the relevant policy should be considered in every occasion. Yet, these suits may face problems of proof generally. For now, we expect the novel suits to continue.
John has been practicing over 30 years and is a Senior Partner with firm where he serves on the Management Committee. He has devoted attention to non-profit boards dedicated to assisting at risk children. He enjoys time with his three children and grandchildren. He also enjoys tennis and hiking.
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.
Litigation
Louisiana
Insight
No Pay, No Play: What is it and why does it matter?
Louisiana’s automobile insurance premiums are some of the highest in the United States. With so many other demands on driver’s wallets, it may seem tempting to simply not purchase a liability automobile policy, even if it is required by Louisiana law. Louisiana’s “No Pay, No Play” statute, LA-R.S. 32:866, is intended to fight that temptation. See Progressive Sec. Ins. Co. v. Foster, 1997-2985 (La. 4/23/98), 711 So.2d 675. Below are some key considerations for drivers and insurers on either side of a potential “No Pay, No Play” dispute.
For Drivers
The “No Pay, No Play” statute means just what it seems—if you do not pay for your own liability insurance, you cannot recover under someone else’s liability insurance even if the accident is not your fault … at least to a point.
Specifically, the “No Pay, No Play” statute precludes someone who does not have liability insurance from recovering from another driver’s policy (1) the first $15,000 of bodily injury damages and (2) the first $25,000 of property damage. Of course, if damages do not exceed these amounts, it means the uninsured driver cannot recover his or her damage at all.
Of course, some exceptions exist. For example, the statute does not apply (meaning, it does reduce the plaintiff driver’s recovery) if the other driver is cited for operating his or her vehicle while intoxicated and is convicted or pleads nolo contendere; if the other driver intentionally causes the accident; if the other driver flees the scene; or if the other driver is in furtherance of the commission of a felony. However, the off-chance that a driver falls into an exception should not outweigh the obligation to comply with Louisiana law.
For Insurers
Generally, liability insurers should assert the “No Pay, No Play” affirmative defense when it appears a plaintiff driver lacks liability insurance. However, insurers should also keep in mind that this defense also has limitations.
For instance, the “No Pay, No Play” statute is not necessarily a total bar to a plaintiff’s recovery. If damages exceed $15,000 for bodily injury and/or $25,000 for property damage, payment may still be owed for these excess damages.
Secondly, the party asserting the “No Pay, No Play” affirmative defense—usually a defendant insurer—bears the burden of establishing that the plaintiff driver lacked insurance coverage on the vehicle he or she was operating at the time of the incident.
This burden can sometimes present difficult issues. For instance, in Johnson v. Henderson, 2004-1723 (La.App. 4 Cir. 3/16/05), 899 So.2d 626, the plaintiff was operating a vehicle he did not own. The defendant failed to yield and struck the plaintiff’s car. The defendant and his insurer asserted the affirmative defense under “No Pay, No Play.”
The facts of the case suggest the vehicle that the plaintiff was operating was not insured, but plaintiff paid his “premiums” to the owners of the vehicle, had an ostensibly valid insurance card, and believed he was insured. The court found that the defendants failed to carry their burden of establishing a lack of coverage. As a result, the insurer owed the plaintiff the full amount of his damages—a total of $5,855.00 that would otherwise have been precluded under the statute.
The “No Pay, No Play” issue is easily avoided: Louisiana drivers should get the insurance required by the statute. Failure to do so runs the risk of discounting (and potentially barring) recovery for accidents that are not the driver’s fault.
Insurance
Liability
Louisiana
Insight
La. Supreme Court Rules 10-year Contract Prescription Applies to 1st Party Claims Against Insurer
In a first-party action obtained by assignment for excess liability against an insurer, the Louisiana Supreme Court in Smith v. Citadel Insurance,19-00052 (La. 10/22/19) ruled that the claim against the carrier is subject to the 10-year contract prescription period under La. law, stating:
“For the above reasons, we hold an insurer’s duty of good faith owed to its insured under La. R.S. 22:1973 does not exist separate and apart from an insurer’s contractual obligations. The duty of good faith is codified in La. R.S. 22:1973, but this duty is an outgrowth of the contractual and fiduciary relationship between the insured and the insurer, and the duty of good faith and fair dealing emanates from the contract between the parties. Thus, first-party bad faith claims against an insurer are governed by the ten-year prescriptive period set forth in La. C.C. art. 3499. Consequently, Ms. Smith’s first-party bad faith claim against GoAuto, brought pursuant to an assignment of rights from the insured, was subject to a 10-year prescriptive period and is not prescribed.”
The concurring justice noted that it was not necessary to engage in the protracted discussion concerning the duties of insurers relative to first-party claims. Nevertheless, the court offered an in-depth discussion of these duties.
Attorney
Contracts
Insurance
Insurer
Insight
Coronavirus and Workers Compensation in Louisiana
In Louisiana, workers compensation benefits can beowed if an employee sustains an accident or develops an occupational diseasearising out of and occurring during the course and scope of theiremployment. The definitions and burdens of proof differ for each.
An accident is defined by La. R.S. 23:1021 as:
(1) “Accident” means an unexpected or unforeseen actual, identifiable,precipitous event happening suddenly or violently, with or without human fault,and directly producing at the time objective findings of an injury which ismore than simply a gradual deterioration or progressive degeneration.
An occupational disease is defined by La. R.S.23:1031.1 as:
B. An occupational disease means only that disease or illnesswhich is due to causes and conditions characteristic of and peculiar to theparticular trade, occupation, process, or employment in which the employee isexposed to such disease. Occupational disease shall include injuries due towork-related carpal tunnel syndrome. Degenerative disc disease, spinalstenosis, arthritis of any type, mental illness, and heart-related or perivasculardisease are specifically excluded from the classification of an occupationaldisease for the purpose of this Section.
C. Notwithstanding the limitations of Subsection B hereof, everylaboratory technician who is disabled because of the contraction of anydisease, diseased condition, or poisoning which disease, diseased condition, orpoisoning is a result, whether directly or indirectly, of the nature of thework performed, or the dependent of a laboratory technician whose death is theresult of a disease, diseased condition, or poisoning, whether directly orindirectly, of the nature of the work performed shall be entitled to thecompensation provided in this Chapter the same as if said laboratory technicianreceived personal injury by accident arising out of and in the course of hisemployment.
As used herein, the phrase “laboratory technician” shall mean anyperson who, because of his skills in the technical details of his work, isemployed in a place devoted to experimental study in any branch of the naturalor applied sciences; to the application of scientific principles ofexamination, testing, or analysis by instruments, apparatus, chemical orbiological reactions or other scientific processes for the purposes of thenatural or applied sciences; to the preparation, usually on a small scale, ofdrugs, chemicals, explosives, or other products or substances for experimentalor analytical purposes; or in any other similar place of employment.
Except as otherwise provided in this Subsection, any disabilityor death claim arising under the provisions of this Subsection shall be handledin the same manner and considered the same as disability or death claimsarising due to occupational diseases.
In general, if an employee can prove that they were exposed toCoronavirus at work, and that the particular exposure caused them to contractCoronavirus disease, they may be able to prove a compensable accident. The burden of proof is a tough one, of course, because it would seem to benearly impossible for an employee who contracts the Coronavirus to prove thecontraction resulted from work as opposed to exposure in some otherenvironment. However, it is important to note that one Louisiana courtdid find that a claimant was able to meet that burden when he contracted theWest Nile Virus by proving to the satisfaction of the Workers CompensationJudge, rather incredibly, that a particular mosquito bite occurring at work wasthe cause. Allen v. Graphic Packaging, 51,080 (La.App. 2nd Cir. 1/11/17), 211 So.3d 1219. If a claimant isable to prove the occurrence of an accident, then the usual workerscompensation medical and indemnity benefits would be payable depending onmedical needs, disability status, or even death benefits if the employeeexpired as the result of such an accident.
For an employee to be able to prove that theircontraction of Coronavirus disease fits within the definition of anoccupational disease, they would have to prove that it was “due to causes andconditions characteristic of and peculiar to” their employment. Somehealthcare workers and others in related fields who become infected would seemto have an easier time proving their cases than others whose work would notcustomarily lead to such exposures. The definition above includeslaboratory technicians (which could be an expansive list as defined) whocontract a disease as the result exposure to something that they are workingon/with. The statute also provides some timing elements for claim filingand causation presumption, most of which would not seem to apply because ofnovel nature of the current Coronavirus outbreak. As with claims assertedas accidents, the usual medical and indemnity benefits would be payabledepending on the circumstances of the individual worker.
For additional details on the Allencase, please review Keogh Cox blog “One Particular Mosquito: West Nile Virus Foundto be a Compensable Workers’ Compensation Claim” by clicking here: https://keoghcox.com/one-particular-mosquito-west-nile-virus-found-compensable-workers-compensation-claim/.
Louisiana
Medical
Workers' Compensation
Insight
Google Earth Images Ruled Admissible
Recently, a Louisiana appellate court found that images fromGoogle Earth images were admissible. In Walker v. S.G.B.C., LLC,2019-506 (La.App. 3Cir. 2/5/20); --- So.3d ---, 2020 WL 563818, theLouisiana Third Circuit rejected a challenge to the use of the images on thebasis that they were not properly authenticated.
In this case, the plaintiff sought recognition of ahistorical servitude of passage from his landlocked property. During the trial,the plaintiff offered Google Earth images of the property to show a gravelpathway on the alleged right of way. The images were dated January 2004,November 2005, and December 2017. Multiple witnesses identified the pathon the images. Thereafter, the trial court admitted the images into evidenceover the defendant’s objections.
On appeal, the defendant argued that the images were notproperly authenticated under La. C.E. art. 901 because the plaintiff did not:(1) have the creator of the images testify to their authenticity; (2) get acertification from Google that the images were what they purported to be; and(3) have an expert testify that the images were accurate depictions of whatthey claimed to be.
The Walker court affirmed the trial court ruling thatthese images were admissible. Louisiana Code of Evidence Article 901(B)(1)provides the testimony of a witness with personal knowledge may supply theauthentication of evidence required for its admission. Because the plaintiffidentified various landmarks on each image, and each image was subsequentlyrecognized by multiple witnesses (including the defendant’s witnesses), theCourt concluded there was sufficient support for finding the images authentic.
In Walker, the precise dates the photographs were taken were not critical. Under different facts, courts may choose to apply the authentication rules of Article 901 more stringently.
Chris Jones is a partner with Keogh Cox in Baton Rouge, LA. He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country. He is a life-long resident of Baton Rouge, where he lives with his wife and four children.
Evidence
Louisiana
Trial Court
Property
Insight
Is Timing Everything Where Workers Compensation Benefits are Forfeited Based on Fraud? It Depends…
In Moran v. Rouse's Enterprises, LLC, 19-2392019(La. App.5Cir. 12/26/19)- - - So. 3d - - -, the Louisiana Fifth Circuit held that thereis a forfeiture of all benefits when a worker’s compensation claimant commitsfraud, regardless of when the fraudulent conduct occurs. The court declined tofollow opinions from the First and Third Circuits concluding otherwise.
In Moran, the claimant obtained treatment for injuries toher back, right knee, and right shoulder after a slip and fall at work forRouses supermarket. In her deposition, the claimant Moran testified that sheexperienced knee pain only once before her fall; it was “years ago” and not“serious.” Moran also claimed that she experienced no prior shoulder or backpain. However, medical records established:
• Complaintsof knee pain on at least 8 separate occasions between 2012 and the job injury;
• Complaintsof right knee, right wrist, and back pain after a slip and fall in 2013; and
• A rightshoulder impingement diagnosis 2 months before the on-the-job accident.
Rouses and its workers compensation carrier affirmativelyalleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraudstatute, following the claimant’s deposition. Paragraphs “A” and “E” of section1208 provide in pertinent part:
A. It shallbe unlawful for any person… to willfully make a false statement orrepresentation… for the purpose of obtaining or defeating any benefit orpayment under…this Chapter.
***
E. Anyemployee violating this Section shall… forfeit any right to compensationbenefits under this Chapter.
As part of their fraud defense, the defendants specificallydenied responsibility for all worker’s compensation benefits, i.e. benefitsthat that might have otherwise been due both before and after the fraudulentdeposition testimony.
Following trial, the workers compensation judge determinedthat Moran carried her burden of proving the occurrence of on-the-job injuryand disability. Nevertheless, the trial court also ruled that the claimant madefalse statements for the purpose of obtaining workers compensation benefits inviolation of section 1208, thereby forfeiting the right to both the pre andpost-deposition benefits that she was claiming.
On appeal, Moran argued that the forfeiture requirement ofsection 1208 applies prospectively only. Moran cited opinions from theLouisiana First and Third Circuits. After addressing the statute and the caselaw, the Moran court affirmed the decision of the workers compensation judgefinding that the forfeiture of benefits provided for in of Section 1208 isclear and unambiguous. The opinion states that “…if the legislature hadintended to limit the application … it would have clearly expressed that in thestatute.”
There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.
Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.
Fraud
Injury
Liability
Workers' Compensation
Insight
Limitation of Liability under the LPLA: Can Internet Retailers be Manufacturers?
The Louisiana Products Liability Act (“LPLA”) contains the exclusivetheories of recovery against a manufacturer for damages caused by its product.The term “manufacturer” within the LPLA includes “the seller of a product whoexercises control over or influences a characteristic of the design,construction, or quality of the product that causes damage.” The rapid growthof e-commerce raises a unique question – how do we classify internet retailers?
Internet retailers generally act as a middleman for third partymanufacturers and online consumers. In this respect, they are not technically“sellers” as defined by the LPLA because they typically do not have controlover the design or construction of the products they sell. Nevertheless, theproper categorization of internet retailers may become important when someoneis injured by a product, as was the case in State Farm Fire and CasualtyCompany v. Amazon.com, Inc., 2019 WL 5616708 (Miss. N.D. 10/31/19) ---F.Supp.3d ---.
In State Farm Fire and Casualty Company v. Amazon.com, Inc., two hoverboards purchased through Amazon caught fire inside a Mississippi home and the home was destroyed. In considering Amazon’s possible liability, the Mississippi Court asked whether Amazon was a “service provider” or a “marketplace.” In Mississippi, a finding that Amazon was a “service provider” would insulate it from the claim. However, if Amazon acted as a “marketplace,” it could be exposed by the common law to a negligent failure-to-warn claim. The Mississippi Court held that, because Amazon operated as a marketplace, the claim against it could go forward.
If similar facts arose in Louisiana, could Amazon or similar retailers be exposed under the LPLA? If an internet retailer established policies that forced a “true” manufacturer to negatively alter product quality, would the LPLA provide a remedy? For example, if an internet retailer sets a price ceiling, this artificial figure, especially if unreasonably low, might pressure a manufacturer to lower product safety. Is setting a price range the exercise of enough control or influence over the “design, construction, or quality of a product” to render internet retailers subject to suit under the LPLA? That is a question likely to be answered in cases to come.
Louisiana
Injury
Insight
A Matter of Control of a Bike Results in No Liability under the LPLA
A Louisiana man logged onto eBay. To save some money, hebought a used racing bicycle. While riding this bike through his neighborhood,he noticed an unlevel section of the roadway and attempted a “bunny hop” overthe gap in the pavement. The front wheel disconnected when he landed. Thecyclist lost control and flipped over the handlebars, sustaining seriousinjuries. He later filed suit against Specialized, the manufacturer of thebicycle, under the Louisiana Products Liability Act (“LPLA”). See Delahoussaye v. Boelter, --- So.3d---,2019-0026 (La. App. 1 Cir. 11/15/19).
The evidence in Delahoussaye showed that the bike wasmissing its “secondary retention device,” which keeps the wheel fromdisengaging if the “quick release” on clamp on the front fork is not engagedproperly. Also, no warnings were found on the bike. Based upon this evidence,the cyclist claimed Specialized should be liable because the bike wasdefective; unreasonably dangerous in its design, construction, and manufacture;and inadequate in its instructions and warnings.
To recover from a manufacturer under the LPLA, a plaintiffmust show that the product (here, the bike) was unreasonably dangerous atthe time it left the manufacturer’s control. Photographs of the bike showeda light, silver spot on the bike where the secondary retention device had beenlocated. This confirmed that the secondary retention device was removed afterit originally was manufactured. Evidence also showed that warning stickersoriginally on the bike had been removed.
These changes were made after Specialized lost control of the bike. Because the bike was not defective when the product left Specialized’s control, Specialized, as the bike’s manufacturer, could not be liable under the LPLA for injuries the plaintiff sustained when he lost control of the bike. In short, this case came down to a matter of control.
Reynolds LeBlanc is a partner at Keogh Cox. His practice areas include commercial litigation, personal injury claims, appeals, and other matters. Reynolds is a former teacher, who in his free time plays music and perpetually talks himself into training for his next marathon.
Injury
Liability
Insight
Throw Me Something Mister? Liability for Mardi Gras Krewes
As part of the unique aura that surrounds Mardi Gras inSouth Louisiana, the expression “Laissez les bons temps rouler” is foreverlinked to the spirit of the season. The Cajun French phrase meaning “Let thegood times roll” captures the eccentric soul of Carnival. However, it might bedifficult to let the good times roll after being struck by a bag of beadshurled from the second deck of float. If the spectator suffers a severe injuryas a result, who is liable? Does the injured party have any recourse againstthe person who threw the beads? Against the Mardi Gras krewe organizers?
The Fourth Circuit Court of Appeal held that spectatorsassume the risk of injury when attending a parade. Citron v. Gentilly CarnivalClub, Inc., 14-1096 (La. App. 4 Cir. 4/15/15), 165 So.3d 304. The foundation ofthe decision was based on the Mardi Gras Immunity Statute, La. R.S. 9:2796,which has two parts: (1) creates broad immunity for krewes which sponsorparades; and (2) states that anyone who attends such a parade “assumes the riskof being struck by any missile whatsoever which has been traditionally thrown,tosses or hurled by members,” which include, but are not limited to: beads,cups, doubloons, and many other things.
To impose liability on a krewe, there must be evidence ofthe krewe’s—as opposed to its member’s—gross negligence. Palmer v. Zulu Soc.Aid & Pleasure Club, Inc., 09–0751 (La. App. 4 Cir. 3/1/10), 63 So.3d 131(emphasis added). Furthermore, a carnival krewe or organization may not bevicariously liable for its members' acts. To the contrary, Louisianajurisprudence has rejected the argument that a krewe is vicariously liable forits members' acts. Kibble v. B.P.O. Elks Lodge No. 30, 640 So.2d 267, 269 (La.App. 4th Cir. 1993).
The Mardi Gras Immunity Statute imposes an extremely high burden of proving the “loss or damage was caused by the deliberate and wanton act or gross negligence” of the krewe or organization. Gross negligence has been defined as the “entire absence of care” and an “extreme departure from ordinary care or the want of even scant care.” Ambrose v. New Orleans Police Department Ambulance Service, 93–3099 (La. 7/5/94), 639 So.2d 216. In calculating whether an act was grossly negligent in the context of Mardi Gras Immunity Statute, the Citron court considered several factors: (1) the weight of the object thrown, (2) the distance the object was throw, and (3) the manner in which the object was thrown. Citron, 165 So.3d at 317.
Ultimately, the statute absolves krewes from liability for injuries caused by objects thrown to parade spectators, except in extreme and unusual circumstances. Therefore, be alert during parades this Mardi Gras season and Laissez les bons temps rouler.
Cole Frazier joined Keogh Cox as an associate in 2019 after working at the firm as a law clerk during law school. He earned his J.D. and Diploma in Comparative Law from Louisiana State University, Paul M. Hebert Law Center. During his time at LSU Law, he also studied comparative law at Jean Moulin Lyon 3 University in Lyon, France. Cole received his Bachelor’s degree in Business Administration with a concentration in Pre-law from Nicholls State University in 2015. He was elected to the Southland Conference all-academic team twice as a member of the Nicholls State football program.
Injury
Liability
Louisiana