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Insight
Court Finds Real Estate Agents Are Not Required to Research the Truthfulness of Their Client’s Representations
In Smith v. Grantham, homebuyers sued the sellers for alleged failure to disclose prior flooding of the home. The buyers also sued the sellers’ real estate agent for negligent misrepresentation, arguing the realtor knew or should have known of a prior history of flooding. The plaintiff referenced the previous sellers’ property disclosure documents located in the MLS listing database, which disclosed a prior flooding incident. However, the property disclosure document that the realtor received from her clients denied any prior flooding of the property or structure.
The Court of Appeal affirmed summary judgment in favor of the sellers’ agent, noting that her clients represented in their property disclosure document that the property had never flooded, and she had no actual knowledge contradicting their representation. The Court stated that under La. R.S. 9:3894(B), a real estate agent is relieved of liability for providing false information furnished by her client if she did not have actual knowledge that the information was incorrect. The court held that imposing a higher duty on a real estate agent would improperly “create a situation in which the agent had to independently verify information before conveying it to the buyer.”
Reference:
Smith v. Grantham, 93-0881 (La. App. 1 Cir. 9/4/24), 394 So.3d 316.
Property
Real Estate
Summary Judgment
Insight
Drug Use Limits Plaintiffs’ Recovery
In a case of first impression, the United States Court of Appeal for the 5th Circuit concludes that a maritime tort plaintiff’s overdose from illegal drugs was a superseding cause of his death that was not traceable to his maritime work injury. Therefore, damages stemming from his death could not be recovered.
In Bommarito v. Belle Chasse Marine Transportation, L.L.C., the plaintiff was injured on the job while constructing a launch site on the Mississippi River. The plaintiff’s injuries included a concussion, a fractured eye socket, and a displaced disc that required emergency surgery. He was advised additional surgeries were needed to address his complaints of pain. His prescription medication ran out, and the plaintiff tried to control his pain with over-the-counter medication while he waited for an appointment with his doctor.
One day, the plaintiff’s mother found him unconscious from what a pathologist determined was an overdose of street fentanyl mixed with Xylazine, a horse tranquilizer not available for human use. The autopsy revealed his blood contained more than six times what is considered a lethal dose of fentanyl.
The plaintiff’s estate brought claims against various defendants under the Jones Act and general Maritime Law and subsequently added a claim under the Longshore and Harbor Workers’ Compensation Act. Following a bench trial, the District Court Judge awarded damages, including damages for wrongful death.
The Court of Appeal reversed. The court applied the “superseding cause doctrine” to its proximate cause analysis. The court found that where the defendant’s negligence in fact substantially contributed to the plaintiff’s injury, but the death was actually brought about by a later cause of independent origin that was not foreseeable, the superseding cause doctrine applies.
While the court noted that few federal courts have addressed the issue of overdose from illegal drugs as a superseding cause, various state court cases had. The court found those cases that found ingesting illegal drugs to be a superseding cause to be persuasive. Citing its own precedent on the superseding cause doctrine, the court noted that it “is predicated on the notion that there must be some terminus somewhere, short of eternity, at which the second party becomes responsible in lieu of the first.” Noting that foreseeability is a continuum, the court added that “at some point, there is no causation as a matter of law.”
References:
Bommarito v. Belle Chasse Marine Transportation, L.L.C., 159 F.4th 297 (5th Cir. 2025)
Maritime Law
Wrongful Death
News
John P. Wolff, III, honored with the McMahon Inn of Court's Distinguished Member Award.
Keogh Cox attorneys celebrated John P. Wolff, III, who was honored for his dedication and leadership with the McMahon Inn of Court's Distinguished Member Award.
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Insight
Good Restrictions Can Make Good Neighbors
Picture it – you purchase a new home in a quiet, family-friendly neighborhood. On your first night, you notice that the neighbors are having a party – a big loud party. Your haven of peace and tranquility is interrupted by thumping bass and the shrieks of people jumping into a pool. The next day, the neighbors are gone, and the block is quiet again. However, the party returns the next weekend, bigger and louder than before. You do some research and find the house is listed on a popular website for short term rentals. What do you do?
This is the exact question that was posed to the Louisiana Court of Appeals for the Second Circuit in Marina Homeowners Association, Inc. v. Cahill. In that case, the Marina Homeowner’s Association filed a petition seeking declaratory judgment against the owner of the house on the basis that the use of the home as a short-term rental violated the covenants of the homeowner’s association. In response, the property owners argued that the covenants had expired and were no longer applicable. Therefore, they claimed they were free to use their property as they saw fit.
Many homeowners in Louisiana are familiar with building restrictions. Authority for the issuance of building restrictions is found in Louisiana Civil Code article 775. A building restriction is a real right under Louisiana Civil Code article 777. However, Louisiana Civil Code article 778 provides that if there is doubt as to the existence, validity, or extent of building restrictions, the issue should be resolved in favor of the unrestricted use of the immovable. These articles also provide a subsequent purchaser of the immovable property is also bound by the building restrictions if they are recorded in the public records.
The building restrictions for the subdivision at issue provided that the restrictions had a term of twenty years and then would renew automatically in ten-year periods. These restrictions bound the original property owners and all subsequent property owners. The court found that even though the original twenty-year term for the building restrictions had expired, the restrictions would automatically renew unless amended by the Association. Therefore, the property owner’s house was subject to the building restrictions.
Importantly for this case, the building restrictions specifically prohibited the use of the property for any reasons other than residential purposes. Therefore, the operation of a short-term rental was a violation of the building restrictions.
The Homeowners Association prevailed in this case – the property owners were no longer able to use their property for short term rentals. As the moral of the story – to be a good neighbor – it helps to follow the rules. And it is always important to check the fine print to know what those rules are!
References:
Marina Homeowners Ass'n, Inc. v. Cahill, 56,423 (La. App. 2 Cir. 8/27/25), 420 So. 3d 782.
Contracts
Louisiana
Property
Insight
Louisiana Changes Prescriptive Periods for Survival and Wrongful Death Actions
Pursuant to House Bill 291, Louisiana modified the prescriptive dates for wrongful death and survival actions. Survival actions are brought to recover damages a deceased person suffered before his or her death. For survival actions, La. Civil Code Article 2315.1 (A) now provides as follows:
If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased or two years from the day that injury or damage is sustained, whichever is longer.
A wrongful death claim can compensate the surviving family members for their own suffering following someone’s death. Similar amendments were made for the wrongful death statute. La. Civil Code Article 2315.2(B) now provides that the right of action for wrongful death prescribes one year from the death of the deceased or two years from the day that injury or damage is sustained, whichever is longer.
The changes to these articles went into effect August 1, 2025.
Louisiana
Prescription
Wrongful Death
Insight
Louisiana Supreme Court Clarifies “Reasonably Anticipated Use” in Product Liability Claim
Plaintiff Brady Hardisty and a coworker attempted to use chains attached to a tractor to pull a Caterpillar bulldozer from the mud. A chain snapped and struck plaintiff in the head and face. Hardisty sued Caterpillar under allegations that its product was unreasonably dangerous. Caterpillar filed a Motion for Summary Judgment arguing Hardisty was not engaged in a “reasonably anticipated use” of its product. Both the trial court and the appellate court identified “material issues of fact” in denying Caterpillar’s motion. The Supreme Court reversed, and entered summary judgment for Caterpillar.^
Caterpillar cited its Operation Manual that warned against the use of chains and gave a safer alternative. Hardisty asserted that material issues of fact existed as to whether Caterpillar “knew or should have known” that users were not following product warnings. Hardisty offered opinions from its expert witness that: (1) Caterpillar knew of the danger because it warned against the use of chains and (2) experience showed that the use of chains was a common practice in the industry.
The Hardisty court reasoned that the expert’s own “experience” was insufficient to refute Caterpillar’s evidence that it received no report of prior similar accidents. However, the Court cited to earlier case law for the proposition that even actual knowledge would not defeat the motion, stating:
The jurisprudence has recognized that knowledge of the potential and actual intentional abuse of a product does not create a question of fact on the question of reasonably anticipated use when the manufacturer expressly warned against the danger of such misuse.
In a recent case handled by Keogh Cox, the federal Fifth Circuit affirmed summary judgment for defendants, citing Hardisty for the proposition that a manufacturer may reasonably expect that its users will follow “clear and direct” product warnings. See Friels v. Louisiana State Administrative Office of Rick Management, et al.
References:
^Hardisty v. Walker, 25-00239 (La. 6/3/25), 410 So,3d 774.
Louisiana State Administrative Office of Rick Management, et al., No. 24-30688, 8/15/25. Opinion not designated for publication. 5th Cir. R. 47.5.
Louisiana
Louisiana Supreme Court
Product Liability
News
Keogh Cox is proud to have been named in the 2026 edition of Best Law Firms® as a Tier 1 firm in Baton Rouge in four practice areas.
Keogh Cox is proud to have been named in the 2026 edition of Best Law Firms® as a Tier 1 firm in Baton Rouge in four practice areas: Mass Tort Litigation/Class Actions – Defendants, Personal Injury Litigation – Defendants, Professional Malpractice Law-Defendants, and Workers’ Compensation Law-Employers.
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News
Keogh Cox Announces New Associate Attorneys
Keogh Cox is pleased to announce Asia Jackson and Connor Brady have joined the firm as new Associate Attorneys.
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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.
Louisiana Supreme Court
Summary Judgment
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News
Mary Anne Wolf will present topics on design professional liability and risk management at the 2025 Louisiana Civil Engineering Conference.
Mary Anne Wolf will present topics on design professional liability and risk management at the 2025 Louisiana Civil Engineering Conference on September 25th at the Convention Center in Kenner, LA.
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Insight
Louisiana Expands Definition of Medical Malpractice Under the LMMA
Louisiana courts traditionally have ruled claims of administrative negligence fell outside of the purview of the Louisiana Medical Malpractice Act (LMMA). Courts found the LMMA applied strictly to cases “arising from medical malpractice.” In cases where Plaintiffs argued medical administrative failure, courts applied general tort law. This meant that the LMMA’s key protections— the statutory cap on damages and the requirement for a pre-suit medical review panel— did not apply to claims based on alleged administrative failures.
The following cases illustrate this point:
- In LaCoste v. Pendleton Methodist Hosp., Plaintiff alleged a hospital failed to maintain its life-support equipment and implement emergency evacuation plans.^
- In Blevins v. Hamilton Med. Ctr., Inc., Plaintiff alleged the hospital failed to provide him with equipment in proper working condition, to keep his bed in lowest position with wheels locked, and to properly instruct him on proper use and safety of his bed.*
- In Scio v. University Med. Mgmt. Corp., Plaintiff alleged the defendant failed to implement policies to ensure that follow up appointments were properly communicated.^^
- In Billeaudeau v. Opelousas Gen. Hosp. Auth., Plaintiff alleged the hospital was negligent in its credentialing of a doctor in the emergency department.**
The Louisiana Supreme Court used the “Coleman factors” established in Coleman v. Deno^^^ to determine whether the alleged conduct in these cases could constitute “malpractice.” These factors assess (1) whether the alleged conduct is treatment-related, (2) whether expert testimony is required to examine the claim, (3) whether assessment of the patient’s condition was involved, (4) whether it involves a physician-patient relationship, (5) whether the injury would have occurred absent treatment, and (6) whether the act was intentional. Considering these factors in each of the cases outlined above, the Court found the LMMA did not apply.
However, recent legislative amendments expanded the LMMA’s scope and raise questions about how these cases would be decided now. Effective August 1, 2025, new amendments broaden the definitions of “health care” and “malpractice” under La. R.S. 40:1231.1 to include administrative and managerial actions that are necessary for delivering medical care. While the full text of the new statute should be considered when evaluating any pending or potential claims, a summary is provided here.
Under the amended statute:
“Health care” now includes any act, treatment, “administration, service, or care related to policies and procedures and the administration thereof, staffing, custodial services by licensed or certified staff…” Further, the amendment expressly provides that the definition of health care “includes all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”
Additionally, under the amendment, the definition of “malpractice” now explicitly covers all acts tied to staffing and expressly includes “all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”
These amendments suggest the cases outlined above may have been decided differently if they were filed today. However, it remains to be seen how courts will apply these changes moving forward.
References:
^ LaCoste v. Pendleton Methodist Hosp., LLC, 07-0008 (La. 9/5/07), 966 So. 2d 519.
* Blevins v. Hamilton Med. Ctr., Inc., 2007-127 (La. 6/29/07), 959 So. 2d 440, 442, 443.
^^ Scio v. University Med. Mgmt. Corp., 19-1319 (La. 10/21/19), 280 So. 3d 1135.
** Billeaudeau v. Opelousas Gen. Hosp. Auth., 2016-0846 (La. 10/19/16), 218 So. 3d 513, 515.
^^^ Coleman v. Deno, 2001-1517 (La. 1/25/02), 813 So. 2d 303, 316.
Medical Malpractice
Negligence
Professional Liability
Medical Review Panel