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News
Keogh Cox participates in Baton Rouge Bar Association's Holiday Star program
Keogh Cox was pleased to participate in Baton Rouge Bar Association's Holiday Star program. The attorneys and staff provided presents for 21 children in the Baton Rouge area.
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Resource
SUPREME COURT CLARIFIES LIABILITY OF LLC MEMBERS
In Nunez v. Pinnacle Homes, L.L.C., 2015 WL 5972529 (La. 10/14/15), a homeowner brought a New Home Warranty Act claim against the LLC that constructed her home and the sole member of the LLC. After construction, plaintiff was informed that her home did not meet the required elevation for permitting purposes and flood insurance. At trial, it was determined that Mr. Lenard, the sole member of the LLC, did not properly supervise the elevation of the property and Mr. Lenard was found personally liable under the "professional duty exception" to the general rule of limited liability for members, managers, employees and agents of a Limited Liability Company.The Third Circuit affirmed the trial court and held that a breach of Lenard's professional duty as a contractor under La. R.S. 12:1320(D) allowed for recovery against him as an individual, despite the lack of contractual privity between plaintiff and Lenard. Lenard sought writs to the Louisiana Supreme Court, which remanded to the Third Circuit to issue a ruling in light of Ogea v. Merritt, 13-1085 (La. 12/10/13), a 2013 Supreme Court decision that set forth the framework to assess the personal liability of an LLC member.On remand, the Third Circuit again imposed personal liability, finding that Lenard breached a professional duty because he "was acting as a professional with attainments in special knowledge, particularly as evidenced by his having attained licensure from the state, as distinguished from mere skill." Lenard again appealed to the Supreme Court.In Nunez, the Supreme Court observed that the legislature through the creation of the LLC as a business entity intended to promote commerce by limiting personal liability for debts incurred or acts performed on behalf of an LLC. Thus, the legislature largely intended to shield individual members, managers, and employees of an LLC from liability, and created only "narrowly defined circumstances" in which a member of the LLC may be subject to personal liability. According to the court, the facts of Nunez did not fall within the professional duty exception; therefore, the Third Circuit erred when it imposed personally liability upon Lenard.The Nunez court rejected the Third Circuit's conclusion that a contractor licensed by the state was a "professional" within the meaning of the LLC statute. According to the court, a "profession" is different from other occupations or trades. Unlike with professions such as accounting, architecture, law, medicine, etc. recognized by the legislature in Title 12 as professions, the court found no authority that the legislature intended "contracting" or "contractors" to be considered professionals in this context. Given that there are some fifty-seven other "professions and occupations" licensed by the state, the Supreme Court feared that a broad interpretation of the professional duty exception "would allow the general rule of limited liability to be swallowed up by the narrow professional duty exception.”
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The Supreme Court "Cleans Up" the Liability of Merchants for Slip-and-Falls Caused by Independent Contractors
In Thompson v. Winn-Dixie Montogomery, Inc., et al., 2015-C-0477, – So.3d —, the Louisiana Supreme Court recently held that a merchant is not solidarily liable for “slip and fall” damages caused by the actions of an independent contractor, a janitorial services company. Additionally, the Thompson Court addressed the best practices for an appeals court to raise an issue “sua sponte,” i.e, on its own.
The facts of the case are straightforward. The plaintiff slipped on a puddle of water in front of a meat case in a grocery store. The merchant, Winn-Dixie, kept a floor mat in front of the meat case to address any condensation. At the time of the fall, the mat was rolled up to permit the area to be mopped. Winn-Dixie had contracted with Southern Cleaning Services, Inc. (“SCSI”) to provide janitorial services. SCSI then subcontracted with KAP Cleaning Services, Inc. (“KAP”) to perform this work. KAP’s employee was the one who rolled up the mat and was preparing to mop the meat case area when plaintiff fell.
Plaintiff settled with SCI and KAP prior to trial. However, KAP’s “third party fault” was still an issue at trial. The trial court found KAP 70% at fault and Winn-Dixie 30% at fault.
Hoping to impact the fault allocation on appeal, the plaintiff argued that Winn-Dixie possessed an exclusive duty over floor safety and was liable under La. R.S. 9:2800.6 (the “Merchant Liability Statute”) because its manager did not conduct inspections every thirty minutes as required by Winn-Dixie policies, and because the floor mat was undersized. Additionally, plaintiff argued that Winn-Dixie should have been aware of the water in front of the meat case because of a history of alleged “leaks.”
In response to plaintiff’s arguments, Winn-Dixie offered the testimony of its refrigeration maintenance technician, who explained that the meat case does not circulate water and, therefore, cannot leak. However, the technician conceded that condensation could develop depending on the temperature and humidity levels in the store.
The appeals court accepted the plaintiff’s arguments and reversed. In assessing 100% fault to Winn-Dixie, the appellate court held that: (1) Winn-Dixie could not delegate the statutorily-imposed duties of the Merchant Liability Statute; and (2) Winn-Dixie possessed “operational control” of KAP’s employee. The appeals court decision suggested that the independent contractor could never be assessed fault in connection with floor safety because Winn-Dixie possessed the duty under the law.
The Louisiana Supreme Court in Thompson reversed the appeals court. While the act of contracting with an independent contractor does not eliminate the merchant’s statutory duties, the independent contractor may also be liable if there is evidence of negligence on its part. Accordingly, the Court held that all fault must be assessed because a merchant is not solidarily liable for the actions of an independent contractor.
The Thompson Court also addressed whether Winn-Dixie controlled and supervised KAP’s employee to the extent that it had “operational control.” On this subject, the Court noted that the issue of “operational control” was not pled, briefed or argued by any party and was instead raised sua sponte by the appeals court. In this context, the Court instructed that, if an issue is raised sua sponte, the best “practice [for the appeals court] is to invite additional briefing from the parties prior to rendering judgment.”
The Thompson Court felt that it was erroneous for the appellate court to raise an issue without briefing or input from the parties on that issue. Nevertheless, it also found that the evidence in the record was insufficient to establish that Winn-Dixie exercised operational control over KAP. After determining the Winn-Dixie was not responsible for the actions of KAP’s employee, the Court applied the “Watson factors” and determined that the trial court had reasonably apportioned fault based upon the record created at trial.
Slip and Fall
Resource
FIRST CIRCUIT CLARIFIES REQUIREMENTS FOR PUBLIC BID LAW
In Dynamic Constructors, L.LC. v. Plaquemines Parish Gov't, 15-0271 (La. App. 4 Cir. 8/26/15), 173 So. 3d 1239 (La. Ct. App. 2015), reh'g denied (Sept. 14, 2015), a contractor filed a preliminary injunction seeking to enjoin a parish government from awarding a public contract to another bidder. After awarding the contract to Dynamic, the lowest bidder, the parish rescinded the award. The parish contended that the bid was not responsive because it did not contain written evidence of the authority of the person signing the bid, as required by the Public Bid Law.Dynamic argues that the signature of the LLC member indicated that he was the "owner" of Dynamic and that the Public Bid Law does not require that the bidder provide the pertinent record of the Secretary of State, only that the person signing the bid be a member of the business entity submitting the bid. The Fourth Circuit disagreed and found that the Public Bid Law requires written evidence of authority to be submitted with the bid substantiating that the signatory is a member of the company or an authorized representative. As such, the Dynamic court found a failure to comply with the Public Bid Law; the parish correctly rescinded the bid.
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News
Keogh Cox branding is featured on the Law Firm 4.0 Blog
The Keogh Cox branding is featured on the Law Firm 4.0 Blog. It showcases where we were and where we are.
“Keogh Cox did it right. Leaders didn't put their toe in the water, they demonstrated courage and commitment from the first meeting that never wavered. It was an honor and pleasure for the entire Content Pilot team to work with them.”
Check it out and let us know what you think.
http://lawfirm4-0.typepad.com/law_firm_40_blog/
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Resource
SEPTEMBER 2015 LEGAL UPDATE
CONSTRUCTION LAW - In Lamar Contractors, Inc. v. Kacco, Inc., 14-1360 (La. App. 4 Cir. 7/1/15), 2015 WL 403181, Lamar, a general contractor, sued its subcontractor, Kacco, Inc., for an alleged breach of contract. In particular, Lamar asserted that the sub-contractor had failed to adequately and timely supply necessary building materials to perform framing and drywall work in connection with the YMCA facility in Plaquemines Parish.At trial, evidence showed that Kacco's material supplier had frozen its account over payment issues. Needing materials to complete the work, Kacco requested that Lamar issue a joint check to Kacco and the supplier. Lamar agreed to issue the joint check, but only if Kacco agreed to a corresponding 10% "back charge" for the cost of the materials purchased. Kacco refused. Therefore, despite competent work, the subcontractor's contract was terminated for a failure to obtain adequate supplies as required by contract.The trial court identified $72,350.00 in actual damages caused to the general contractor as the result of the subcontractor’s default. However, the award was reduced by 2/3rds due to Lamar’s “contributory negligence.”On appeal, Lamar asserted that the trial court erred in reducing the damages based upon contributory negligence, arguing that contributory negligence “consists of a civil wrong of negligence in tort or delictual law in Louisiana.” Lamar therefore contended that only the breach of a duty imposed by law, not by contract, would have supported an assessment of fault against it.Lamar’s argument was rejected by the Appellate Court which cited to La. C.C. art 2003, which provides in pertinent part:“If the obligee’s negligence contributes to the obligor’s failure to perform, the damages are reduced in proportion to that negligence.”Citing to Lamar’s refusal to assist in funding the necessary supplies and late payment of another invoice, the Appellate Court found that adequate evidence existed in support of the allocation of fault to Lamar. While the Appellate Court slightly increased the amount of damages awarded to Lamar, it upheld the 2/3rds assessment of fault.
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Now You See Us
Keogh Cox is proud to announce the placement of a new sign and logo on the exterior of our office building in Baton Rouge, Louisiana.
Keogh Cox’s offices have long been situated in the heart of downtown Baton Rouge in a convenient and historically significant location. Clients, drivers, and passers-by will now be better able to see us, day or night.
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Insight
Sudden Emergency Defense: Now More Dispositive
On August 28, 2015, the Louisiana Supreme Court denied a Writ Application in Leandro Carias v. Vernon A. Loren, et al. This denial signifies that the "sudden emergency" defense may be properly applied at the summary judgment level. The defense in the Carias litigation was handled by Keogh Cox attorneys Gracella Gail Simmons and Collin J. LeBlanc.
In Carias, the defendant operated his 18-wheeler traveling eastbound over the Mississippi River Bridge when, according to his testimony, a "phantom driver" abruptly entered into his lane of travel and forcefully applied their brakes. In the sliver of time allowed, the defendant sought to quickly determine if he could safely move from his lane of travel. Incorrectly, he believed that there was sufficient space in the lane to his right and impacted a truck in that lane. In turn, that vehicle rear-ended the plaintiff.
A Motion for Summary Judgment was filed and won based upon the sudden emergency defense, which provides that one is not negligent when they fail to take reasonable measures to avoid an accident when they were presented with: 1) a sudden emergency; 2) which was not of their making; and, 3) which did not allow sufficient time for deliberation. In opposition to the Motion, the plaintiff cited testimony that the defendant was "following too closely," and contended that the defendant was therefore at fault and unable to seek the protections of the defense. In response, it was argued that whether the defendant driver allowed sufficient space between his vehicle and the vehicle to the front was non-material when it was the actions of the phantom driver which exclusively created the sudden emergency.
Plaintiff appealed the grant of summary judgment to the Louisiana First Circuit. Prior to Carias, the Louisiana First Circuit had questioned whether the sudden emergency defense could ever be used at the dispositive motion stage. On this subject, the Louisiana First Circuit stated as follows in Manno v. Gutierrez, 05-0476 (La. App. 1st Cir. 3/29/06); 934 So. 2d 112, 117-118: "while we cannot say that it would never be possible to apply the doctrine on a motion for summary judgment, our research has disclosed no cases from this court that have so applied it, and by the nature of the sudden emergency doctrine, it would seem rarely appropriate on a motion for summary judgment." Nevertheless, the First Circuit upheld the Carias summary judgment finding that, unlike earlier cases, there was no conflicting testimony regarding the defendant's lack of opportunity to assess the situation or take other evasive actions.
In the Writ Application to the Supreme Court, the plaintiff cited to a "split in the Circuits" concerning whether the sudden emergency defense may be used at the summary judgment stage. In response, it was argued that the decades of jurisprudence following the Louisiana Supreme Court’s establishment of the sudden emergency defense in Hickman v. Southern Pacific Trans. Co., 262 La. 102, 113-114, 262 So.2d 385, 389 (1972) demonstrate that the lower courts have not struggled with this doctrine and that nothing in Hickman nor the Summary Judgment Article prevent a consideration of the sudden emergency defense through motion practice.
As a practical matter, summary judgment may still be difficult to obtain in the context of the sudden emergency defense because of the highly factual context into which the defense is often sought for application. Nevertheless, after Carias, it appears likely that there is no legal prohibition to the use of the doctrine in support of a dispositive Motion for Summary Judgment
Written by:
Gracella Gail Simmons and Collin J. LeBlanc
Louisiana Supreme Court
Torts
Trucking
News
Mary Anne Wolf was selected to serve on the Board of the Louisiana Association of Defense Counsel Construction and Commercial Litigation practice group
Mary Anne Wolf was selected to serve on the first Board of the Louisiana Association of the Defense Counsel Construction and Commercial Litigation practice group. One of the group's first activities will be a presentation at the LADC 2015 Sizzlin' Summer Seminar on August 28th in New Orleans.
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Less Than Obvious State of “Open and Obvious” Defense
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
Negligence
Slip and Fall
Supreme Court
Resource
PLEADING ALL POTENTIAL CAUSES OF ACTION
The Louisiana First Circuit recently upheld a contractual prohibition against assignment of claims without consent. In Lili Collections, LLC v. Terrebonne Parish Consolidated Government, 2014 CA 1541, the plaintiff, in response to an exception of no right of action, argued that the contract’s prohibition against assignment was not enforceable under Article 9 of the U.C.C. because the transaction was a "secured transaction." However, in the petition, the Plaintiff had only sought damages for breach of contract, and not for nonpayment of a secured debt.The court held that the assignment to the plaintiff was impermissible because the defendant had not consented. Therefore, there was no privity of contract. Additionally, the court found that the U.C.C. provisions were not applicable because the petition did not raise a cause of action under the U.C.C.
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News
Keogh Cox Launches New Strategy and Brand
Keogh Cox & Wilson Ltd., a decades-old litigation firm in Louisiana, launched its new firm strategy and brand. Reflecting its consistent and modern approach to working with clients to solve problems, the brand promise – “the right ingredients for complex cases in Louisiana” – makes clear the firm’s power and strength.
Building on its strong reputation in key industries, such as healthcare, insurance, biotechnology, construction, energy and trucking, and important practices, including complex litigation, business law, professional liability, products liability and admiralty/maritime, Keogh Cox is reinforcing what clients can expect – a commitment to streamlined problem-solving that addresses the issues and reduces risk as quickly as possible as well as its commitment to the State of Louisiana.
Drew Blanchfield, Managing Partner of Keogh Cox, notes that the time was right for such a bold move. “We have always been on the leading edge of law firm efficiencies that benefit clients, such as going 'paperless' more than ten years ago, which eliminates waste, and saves clients time and money. Our new position and brand are more visible extensions of the work we do, and how clients rely on us for their most concerning issues and problems.”
The internal project lead at Keogh Cox was partner, Chris Jones. “This is an exciting time for our firm. All lawyers participated in certain pieces of this brand development and launch – it’s brought us closer together. It’s very clear to all of us what we stand for – and how that benefits our clients.”
Keogh Cox hired Dallas-headquartered company Content Pilot LLC to assist with all phases of the position and brand, including the website development. Content Pilot founder and CEO Deborah McMurray said, “I’ve worked with law firms for 30 years - it’s rare to find a firm with the all-in dedication to this process that Keogh Cox has demonstrated. They are fully committed in everything they do – to their clients, to the Baton Rouge and broader Louisiana community, and to each other.”
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