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Insight
Louisiana Courts Continue Re-Establishment of the Open and Obvious Defense
Under traditional Louisiana law, if somebody tripped and fell, the property owner would not be liable for an injury (1) if the person reasonably should have seen the thing that caused them to fall or (2) if it was as obvious to the person as it was to the property owner. Stated another way, if the alleged condition was “open” and “obvious,” then that condition could not be “unreasonably dangerous,” and the property owner would not be liable. This thinking formed the basis of the “open and obvious defense” in Louisiana law.
A few years ago, the Louisiana Supreme Court issued a ruling in Broussard v. State, 2012-1238 (La. 2013), 113 So.3d 175 that raised doubts about the usefulness of the open and obvious defense. However, recent decisions by the Louisiana Supreme Court and various courts of appeal have clarified that the open and obvious defense is not dead.
A recent example of this trend is seen in Morel v. Cheema Properties, LLC, 16-666 (La. App. 5 Cir. 4/12/17), — So.3d —. This case involved a trip-and-fall accident at a gas station. On her way inside to pay for her gas, an elderly plaintiff saw two hoses next to a curb where she stepped up to enter the store. When she exited the store, she saw that the two hoses had separated and now blocked her path. She fell and was injured when she tried to navigate through these hoses. The property owner asserted the open and obvious defense and plaintiff’s suit was dismissed.
The court found that the plaintiff “was aware of the open and obvious risk” and that she fell while attempting to step over the hoses. The court observed that the plaintiff could have avoided the risk by asking for assistance or for the hoses to be moved. To the court, it was significant “that the plaintiff saw the hoses and was aware that the hoses could cause her to fall.” Therefore, because the alleged condition was open and obvious, it did not present an unreasonable risk.
This recent Fifth Circuit decision is consistent with recent trends in Louisiana law and shows that the open and obvious defense remains alive and well.
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Insight
Too Much Money and No One to Give it to- The Cy Pres Doctrine
What happens when someone leaves money in a will to a charity that has closed its doors by the time the will is probated? In this strange circumstance, a court may apply the “cy pres doctrine” to answer this question. Cy pres is a French term which loosely translates to mean “as near as possible.” In modern litigation, cy pres is not only used to distribute charitable donations, but also to distribute millions of dollars left over in class action settlements.
In the example above, a court may use cy pres to transfer the donated money to a charity similar to the one that had shut down. In class actions, there are often funds left over when not enough people register to receive money under a settlement. In this situation, the court will use cy pres to decide where this money goes; but that decision is a tricky one. Courts will sometimes direct these funds to a governmental entity loosely related to what the lawsuit was about. Other times these funds will go to a charity. Whatever the choice, there are usually complaints.
In one case, a nationwide class of AOL customers agreed to a settlement in a class action filed in California. Even though class members lived all over the country, the cy pres funds went to a legal aid office in Los Angeles, where the judge’s husband served as a director. This raised some eyebrows.
In another case, Kellogg’s settled a class action filed because its advertisements claimed that frosted mini-wheats improved kids’ brain power, which -sadly- turned out not to be true. Those cy pres funds initially went to a charity designed to feed the poor. However, the court later ruled that the funds should have gone to a group that protected the public from false advertising.
As more and more cases like these garnered attention, rules were passed as to how to distribute these funds. Generally, these rules require some connection between the issues in the lawsuit and the mission of the group that gets the funds. While the United States Supreme Court has yet to address these issues, Chief Justice Roberts recently indicated that the Court may be ready to put its stamp on cy pres.
We may be “as near as possible” to some clarity in the murky law of cy pres.
Class Actions
Litigation
Resource
FRAUD / WORKERS’ COMPENSATION: Johnson v. A.W. Chesterton
In Johnson v. A.W. Chesterton, 16-807 (La. App. 3d Cir. 2/1/17), the Louisiana Third Circuit was faced with the issue of whether a workers’ compensation claimant committed fraud under La. R.S. 23:1208 when he sold a horse but failed to report the earnings. No fraud was identified because horses were a hobby for claimant and the sale of the horse was the sale of a personal asset immaterial to the workers’ compensation claim.
The workers' compensation judge found that the defendants failed to prove requirements of La. R.S. 23:1208, that claimant willfully made a misrepresentation for the purpose of obtaining workers’ compensation benefits. The trial court ordered the employer/carrier to reinstate weekly benefits at the full rate, and awarded Johnson $8,000 in penalties and $10,000 in attorney’s fees.
On appeal, the Third Circuit affirmed the ruling and awarded the claimant an additional $2,500 in attorney’s fees “for work performed on appeal.” The appellate court noted that Johnson “had owned horses as a hobby since he was 5 years old;” was 76 years old at the time of the trial; and, “had owned as many as 42 horses in the past but had decreased that number to 7 after the accident.” Further, claimant testified that the horse he sold for only $3,500 “was purchased for $20,000 nineteen years prior.”
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News
Dancing for Big Buddy
Chris Jones has practiced, taken off his court-ready tie, and is poised to take the stage this Saturday for his dancing debut in support of a good cause, the Big Buddy Program.
Modeled after the hit ABC television show, Dancing for Big Buddy is a charity event featuring community leaders and prominent citizens as they perform a choreographed ballroom dance. At the event, Chris, along with 15 other local community leaders, will put their dancing skills to the test as they perform at LSU’s Pete Maravich Assembly Center.
Collin LeBlanc, Chris’ partner at Keogh Cox, served on the Big Buddy board for many years. About Chris’ efforts, he said “I’m proud of him. I’ve spoken at the event. I’ve helped host the event, but it takes a different kind of courage to get in front of a thousand-plus people --with the cameras rolling-- and dance.”
All of the proceeds from the event will support the Big Buddy Program’s mission to provide positive role models and quality learning experiences for the under-served children and youth of Baton Rouge.
To learn more about the Big Buddy Program and the important work they do, visit their website at www.bigbuddyprogram.org
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Resource
IMMUNITY / NEGLIGENCE
Foster v Kinchen, Wells & Farm Bureau Insurance Company, 2016-0544 (La. App. 1 Cir. 3/29/17), - So.3d -, presents the narrow legal issue of whether a drunk bicyclist’s suit is barred by LSA-R.S. 9:2798.4 which provides immunity for damages suffered by persons operating a “motor vehicle, aircraft, watercraft or vessel” while under the influence of alcohol. According to the First Circuit in Foster, the immunity statute does not apply and the intoxicated cyclist can speed forward with his suit.
In Foster, the plaintiff / bicyclist filed suit after he was hit by a pickup truck. Post-accident blood work revealed that the plaintiff had a blood alcohol content of .084%. Defendants filed a motion for summary judgment contending that plaintiff was precluded from recovery as a result of the immunity provided by LSA-R.S. 9:2798.4. This motion was granted. Plaintiff appealed arguing that the statute was inapplicable because a bicycle is not a “motor vehicle” as referenced in the statute.
Defendants cited to statutory authority which provides that “every person riding a bicycle shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle” and argued that “there should be no difference between bicycles and motor vehicles under the law.” Defendants further pointed to the Title 32 definition of “vehicle” which includes bicycles and even “ridden animals” as “vehicles.”
The Foster court rejected the defense arguments and ruled for plaintiff as a matter of statutory construction. Because a motorized bicycle is excluded from the definition of "motor vehicle,” a fortiori, a non-motorized bicycle is also excluded.
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Insight
Do You Have the “Right to Remain Silent” in Business Dealings?
As a general rule in Louisiana, a party involved in business dealings may keep silent, but exceptions exist. Sure, where information is volunteered that may influence the other party’s conduct, that information must be truthful, but is there a duty to disclose information harmful to your position? According to one recent decision, the answer may be “yes.”
In Parkcrest Builders, LLC v. Housing Authority of New Orleans, 2017 WL 193500 (E.D. La. 2017), the court highlighted a wrinkle in the general rule of silence. According to the Parkcrest court, a party to a proposed transaction may have a duty to disclose any information that an ethical person would disclose. This duty complicates matters for a party wishing to disclose as little as possible in order to protect its interests in an arms-length negotiation. It also raises a question: can a party be sued in fraud if they don’t divulge enough information to satisfy the other party?
“Fraud” is defined as a misrepresentation or suppression of a material fact, made with the intent to obtain an unjust advantage or to cause a loss or inconvenience to the other party. La. Civil Code article 1953. In order to prove fraud by silence, there must exist a duty to disclose.
Parkcrest involved a public project to construct new affordable housing units where the owner terminated its contract with the contractor and sued the contractor’s bond company. In the suit against the bond company, the owner alleged fraud and claimed that the bond company improperly concealed (1) its intent to rehire the defaulted contractor to complete the project, and (2) the nature of the bond company’s agreement with the contractor. According to Parkcrest, these allegations, if proven, were sufficient to prove fraud by silence.
Given that the law allows recovery of economic losses arising from a party’s reasonable reliance upon information provided by another, businesses need to be careful in what they say, and even in what they don’t say.
Contractors
Corporate Law
Fraud
Resource
DRAM SHOP / NEGLIGENCE
In Reed v. Cowboy's W. Store & Trailer Sales, Inc., 2016-462 (La. App. 3 Cir. 3/1/17), — So.3d —, the Third Circuit affirmed summary judgment and found that a night club was not be liable to the plaintiff after one of its patrons left the premises and rear-ended the plaintiff’s tractor. At issue in the case was whether the bar’s duty extended beyond a duty not to sell alcohol to an underage patron.
In Reed, the plaintiff alleged that the underage bar-patron was intoxicated after she left the bar and that her impairment contributed to the accident. The plaintiff argued that the bar breached its duty to prohibit underage consumption of alcohol on its premises and was therefore liable in the accident.
The Third Circuit disagreed. According to the Reed court, the only duty the bar possessed was a duty to refrain from selling alcohol to those below the legal age. It declined to impose a heightened duty to patrol the premises continuously to ensure that underage patrons did not consume alcohol unlawfully or secure alcohol from someone of legal drinking age. Because no evidence showed that the patron bought alcohol at the bar, the court was left with only speculation as to how she acquired the alcohol.
In dicta, the court commented that plaintiff also failed to establish that the patron was, in fact, intoxicated or that her intoxication caused the accident. The bar offered expert testimony that the patron was neither intoxicated nor impaired at the time of the accident based upon an examination of her body weight, the amount of alcohol she consumed, and the time that elapsed before the accident transpired. In response, the plaintiff offered testimony from three lay witnesses who essentially testified that the patron “could have been intoxicated.” This testimony was insufficient to dispute the expert’s conclusion.
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Insight
When "Drone" Used to be a Boring Word
Webster's top two definitions of the word "drone" are as follows:
1: A stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen.
2: one that lives on the labors of others: parasite
While bees and parasites have their allure, Webster's third definition of the word "drone" is the one with current intrigue.
According to Webster's, a drone is also "an unmanned aircraft or ship guided by remote control or onboard computers." Drones began as play things; but are now poised to revolutionize industry, retail, agriculture, journalism, art, and law at an ever-increasing pace.
Currently, drones are regulated by the Federal Aviation Administration which has for decades regulated flight by planes and helicopters; but not everyone can own an airplane or helicopter. Everyone can own a drone and many soon will.
The soon-to-be pervasive use of drones will stretch at the fabric of criminal and civil law and raises intriguing questions with hazy answers. For example,
1: Without probable case, can the government park a drone over a house or building, or even a crime-ridden city block, and monitor for criminal activity with sensors that easily peer through walls?
2: Does one have a reasonable expectation of privacy within a fenced-in back yard?
3: Is following a personal injury plaintiff via drone considered stalking?
4: Can a business fly a drone over a competitor's work yard to observe it processes without recourse?
5: Is it legal to use technology (which is now available) to disrupt or even crash drones flying overhead? Would that be a tort?
In an upcoming Keogh Cox blog, we will advise of pending changes to the law that may begin to answer some of these questions. For now, we will observe that the word "drone" is no longer a boring word.
Attorney
Discovery
Property
Torts
Insight
One Particular Mosquito: West Nile Virus Found to be a Compensable Workers’ Compensation Claim
A Workers’ Compensation Judge in Monroe, Louisiana found that a claimant met his burden of proving that a specific mosquito bite at work caused him to contract the West Nile Virus, resulting in permanent total disability.
At trial, the claimant asserted that “he specifically remembers being bitten on his left leg by a mosquito” while working in the break room of his employer, Graphic Packaging. Claimant presented evidence that mosquitoes were present at the work site, although his purported eyewitness to the event (who also contracted the disease) was proven to have not been at work that day.
The director of the Ouachita Parish Mosquito Abatement District was offered by the claimant and testified that there was a prevalence of mosquitoes in Ouachita Parish during that summer which carried the West Nile Virus. Mosquitoes trapped near both the employer’s location and the claimant’s house tested positive. According to the director, the only way to determine if a mosquito is infected with West Nile is to have that particular mosquito tested. An expert epidemiologist for the employer added that the most commonly infected mosquitoes would not have been active during the middle of the day when the claimant alleges he was bitten.
Based upon the testimony of the claimant, his witness, and the experts, the Workers’ Compensation Judge ruled that the claimant had sufficiently proven that the specific mosquito infected with the West Nile Virus had bitten him at work. The court also stung the employer and its workers’ compensation insurer with penalties and attorneys' fees, finding that they had not contested the claim on a reasonable basis.
The Court of Appeal in Allen vs. Graphic Packaging, No. 51,080 (La. App. 2d Cir. 1/11/17), - - So 3d - -, upheld the Workers’ Compensation Judge. The court noted that all proof of the “accident” rested upon circumstantial evidence and that the claimant possessed no direct evidence that the break room mosquito carried the disease. In this setting, the claimant “faced a burden of proof to show circumstantially that the break room mosquito carried the disease.” Utilizing the “manifest error or clearly wrong standard,” the appellate court held that the claimant had met his burden despite his indirect proof.
The Allen court ultimately reversed the finding of permanent total disability, because the Workers’ Compensation Judge misapplied the statutory requirements. It also reversed the award of penalties and attorneys' fees noting that “there were numerous factors sufficient to validate Graphic’s reasonable controversion of Allen’s claim.”
Court of Appeals
Workers' Compensation
Resource
PROXIMATE CAUSE / NEGLIGENCE
The question of whether injuries were "proximately caused" by the negligence of another is a complicated question with a long, murky history in Louisiana. However, the analysis found in Vince v. Koontz, 16-521 (La. App. 5 Cir. 2/8/17), --- So.3d ---- helps to shed light on the issue.
In Vince, the plaintiff contended that the negligence of the defendant driver caused or contributed to the plaintiff's injury. At trial, the jury agreed that the defendant acted negligently. However, it also found that the defendant's conduct was not the "proximate cause" of the plaintiff's injuries. On appeal, the plaintiff argued that the jury erred because "a finding of negligence mandates a finding of causation." The court in Vince disagreed, stating that, as a matter of law, a finding of negligence does not necessitate a finding of causation. The Vince court upheld the jury verdict even though the jury received improper instruction on proximate causation.
The jury was informed that a "proximate cause" is "the primary act which produces the accident." According to Vince, this definition did not describe "proximate causation," but instead described "cause-in-fact," one of several elements needed to prove negligence. The question of whether an act of negligence was a cause-in-fact of an injury is a purely factual question. By contrast, proximate causation involves a "mixed question of law and fact" and seeks to determine whether the law was intended to protect this plaintiff from this particular harm under these particular facts.
The Vince court concluded that the jury reached its decision on the legitimate basis that Mr. Koontz's negligence was not the cause-in-fact of the injuries and, for this reason, affirmed under the manifest error standard of appellate review.
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Insight
New Orleans Ladies On Parade for Equal Pay
When President John F. Kennedy signed the Equal Pay Act, he called it a "first step" and one which "affirms our determination that when women enter the labor force they will find equality in their pay envelopes.” Despite the many federal statutes passed since the Equal Pay Act, "equal pay" remains a hot-button issue and the subject of protests aimed at correcting an actual and/or perceived disparity. Locally, the New Orleans Police Department estimates that between 10,000 and 15,000 protesters took part in the Women’s March in New Orleans on Saturday, January 21, 2017.
New Orleans Mayor Mitch Landrieu issued an executive order during the week following the protests wherein he requested that a pay disparity survey be conducted by the Civil Service Commission. He further announced a ban of questions about salary history during the hiring process for New Orleans city employees, noting, “It is unacceptable that, on average, women make just 79% of what men make. We need equal pay for equal work.”
Mayor Landrieu's order is limited to city jobs and follows a year when some state officials, including Gov. John Bel Edwards, were dealt a defeat in the Legislature on a separate equal pay measure. The state “equal pay” measure ultimately passed the Senate, but was defeated in a House committee.
The right of employees to be free from discrimination in their compensation is protected under many federal laws, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Specifically, the Equal Pay Act requires that men and women be given equal pay for equal work. Pay differentials are permitted only when they are based on seniority, merit, quantity or quality of production, or a factor other than sex. Of course, these bases provide affirmative defenses that can be raised by the employer in the event of a lawsuit.
Whether the recent protests will become a catalyst for further "equal pay" legislation is not known; what is known is that the issue has been around since before John F. Kennedy and does not appear to be going away anytime soon.
State Courts
Resource
FRAUD - WORKERS' COMPENSATION: Hypolite v. Louisiana Workers’ Compensation Corp.
The Louisiana Court of Appeal for the Third Circuit recently affirmed a workers' compensation judge’s decision to terminate workers' compensation benefits based upon fraud by the injured worker. In Hypolite v. Louisiana Workers’ Compensation Corp., 2016-387 (La. App. 3 Cir. 11/2/16), 2016 WL 6496578, the workers' compensation insurer terminated benefits based upon numerous false statements made by the claimant to his doctor during medical treatment for the injuries sustained in a work accident.
La. R.S. 23:1208 makes it “unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provision of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” Among the remedies available against an employee who violates the statute is forfeiture of workers' compensation benefits. To establish "§1208 fraud," the employer/insurer must prove that: 1) the claimant made a false statement or representation; 2) the statement or representation was willfully made; and, 3) the statement or representation was made for the purpose of obtaining workers’ compensation benefits. However, false statements “must be more than inadvertent or inconsequential statements.”
In Hypolite, the workers' compensation judge found, and the appellate court agreed, that sufficient evidence was presented during the five-day workers' compensation trial to establish that the claimant deliberately made false statements in order to receive workers' compensation benefits. Alleging an aggravation of a low back injury, the plaintiff told his physician that he felt increased pain when “sitting, standing, walking, driving or riding in a vehicle, flexion, and extension” and rated his pain as a 10/10. However, surveillance video presented by the insurer showed the claimant walking, driving, bending, crouching, dancing, and performing other physical activities without any signs of discomfort. Further, at trial, an expert physician viewed the video and testified that an injured person with the back complaints voiced by the claimant could not physically have been able to perform the walking, jumping, dancing, etc. depicted in the video.
Based upon the evidence presented at trial, the claimant was found to have committed §1208 fraud which forfeited his right to workers' compensation benefits.
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