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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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Insight
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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Insight
Claims for Negligent Spoliation of Evidence Not Supported by Louisiana Law, Reynolds v. Bordelon
In Reynolds v. Bordelon, 2014-2362 (La. 6/30/15), — So.3d—, 2015 WL 3972370, the Louisiana Supreme Court definitively ruled that Louisiana law does not recognize a cause of action for negligent spoliation of evidence. This resolved a disputed issue of Louisiana law.
The Reynolds plaintiff was involved in a multi-car accident in which his airbag failed to deploy. His insurance company paid what was owed for the totaled vehicle under its policy and, in the normal course of business, disposed of the vehicle by auctioning it to a salvage yard. Plaintiff’s petition included a claim against the auto manufacturer for the airbag failure. It also included a claim against his insurance company and the salvage yard for failure to preserve the vehicle as evidence likely to be used in litigation.
The Supreme Court classified the insurer and salvage yard as "third parties" to the lawsuit and categorized the plaintiff's claims against them as a negligent spoliation theory. In rejecting these third-party claims, the Court declared a claim for negligent spoliation to be against Louisiana public policy.
First, the tort would not deter future conduct, but would instead penalize a party unaware of potential wrongdoing. Second, liability for such a tort would be based upon great speculation regarding the value of the evidence at issue. Lastly, it would create unnecessary litigation and place a substantial burden upon society as a whole because third parties not even aware of litigation would be required to adopt cumbersome retention policies to reduce exposure to liability.
To prevent spoliation of evidence by third parties, a plaintiff who anticipates litigation should instead enter into an agreement with the third party or obtain a court order to preserve the evidence. By doing so, the plaintiff preserves a potential breach of contract claim regarding the evidence or can seek remedies for violation of the court order in the event the evidence is lost or destroyed.
Under Reynolds, the plaintiff cannot assert a claim for negligent spoliation of evidence. However, the Court confirmed that discovery sanctions and criminal sanctions remain viable against “first parties” who intentionally destroy evidence, Further, third parties may still be liable if a plaintiff can demonstrate a breach of a contract to preserve the evidence.
Insurance
Louisiana Supreme Court
Resource
CLAIMS FOR NEGLIGENT SPOLIATION OF EVIDENCE NOT SUPPORTED BY LOUISIANA LAW
In Reynolds v. Bordelon, 2014-2362 (La. 6/30/15), — So.3d—, 2015 WL 3972370, the Louisiana Supreme Court definitively ruled that Louisiana law does not recognize a cause of action for negligent spoliation of evidence. This resolved a disputed issue of Louisiana law.The Reynolds plaintiff was involved in a multi-car accident in which his airbag failed to deploy. His insurance company paid what was owed for the totaled vehicle under its policy and, in the normal course of business, disposed of the vehicle by auctioning it to a salvage yard. Plaintiff’s petition included a claim against the auto manufacturer for the airbag failure. It also included a claim against his insurance company and the salvage yard for failure to preserve the vehicle as evidence likely to be used in litigation.The Supreme Court classified the insurer and salvage yard as "third parties" to the lawsuit and categorized the plaintiff's claims against them as a negligent spoliation theory. In rejecting these third-party claims, the Court declared a claim for negligent spoliation to be against Louisiana public policy.First, the tort would not deter future conduct, but would instead penalize a party unaware of potential wrongdoing. Second, liability for such a tort would be based upon great speculation regarding the value of the evidence at issue. Lastly, it would create unnecessary litigation and place a substantial burden upon society as a whole because third parties not even aware of litigation would be required to adopt cumbersome retention policies to reduce exposure to liability.To prevent spoliation of evidence by third parties, a plaintiff who anticipates litigation should instead enter into an agreement with the third party or obtain a court order to preserve the evidence. By doing so, the plaintiff preserves a potential breach of contract claim regarding the evidence or can seek remedies for violation of the court order in the event the evidence is lost or destroyed.Under Reynolds, the plaintiff cannot assert a claim for negligent spoliation of evidence. However, the Court confirmed that discovery sanctions and criminal sanctions remain viable against “first parties” who intentionally destroy evidence, Further, third parties may still be liable if a plaintiff can demonstrate a breach of a contract to preserve the evidence.
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Resource
WATSON FACTORS FACTOR INTO DECISION TO ALLOCATE FAULT IN HIGH SCHOOL PELLET GUN FIGHT
In Kinchen v. Miller, 2014-1207 (La. App. 1 Cir. 6/5/15), — So.3d —, 2015 WL 3545622, the plaintiff was injured while on a school-sponsored band trip to a music festival in Tennessee. While on the trip, a number of students purchased novelty pellet guns. Apparently, the school permitted students to purchase weapons, including knives, swords and the subject novelty guns, as long as those weapons were delivered to a chaperone.Many of the students failed to follow the school's rules, taking the novelty guns back to their motel rooms for a “pellet gun battle.” Unsurprisingly, a student was injured when a plastic pellet struck his eye. Under these circumstances, the trial court found that the school board breached its duty of reasonable supervision and ordered it to pay all damages awarded to plaintiff.Citing Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La. 1985), the Kinchen court found the trial court’s decision was improper in light of Louisiana law regarding comparative fault. Under Watson, “both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed should be considered” to allocate the degree of fault among all parties involved in an accident. Id. at 974. Although the school breached its duty of supervision, it was improper to allocate all fault to the school board- especially when the students’ decision to engage in a pellet gun battle was willful, deliberate and in violation of school rules.Under these facts, fault was re-allocated with 60% to the school board, 10% to the plaintiff and 30% to the student who shot him in the eye.
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Resource
THE FIRST CIRCUIT CLARIFIES THE “COURSE AND SCOPE” OF POLICE OFFICERS
During the early morning hours, the plaintiff in Townsend v. Nathan Davis, et al, 2015 WL 1799756 (La. App. 1 Cir. 4.15/15) hosted an after-work party. At the height of the party, approximately 20 to 25 people attended. Multiple Baton Rouge City Police officers were dispatched to the scene due to a noise complaint and the plaintiff was instructed to shut down the party. The plaintiff contended that he went back inside the house to tell everyone to go home. He then heard a pounding on the door and again went outside. According to the plaintiff, one of the officers became hostile and began reading the plaintiff his Miranda rights.The officers provided a different version of events and contended that the plaintiff, who appeared intoxicated, refused to shut down the party. They advised that they would issue him a summons and “shut the party down themselves” were he to refuse. It is undisputed that an officer tackled the plaintiff to the ground landing with enough force to cause him to involuntarily defecate. The plaintiff was also pepper sprayed and then handcuffed. It was alleged that the plaintiff was later kicked in the groin once at the police station with sufficient force to rupture his bladder.At trial, the jury rendered a verdict that the plaintiff's rights were violated through pepper spraying and battery. However, the jury did not find the officer to be in the course and scope of his employment at the time of the battery. The First Circuit upheld the finding that the plaintiff's rights were violated. The Court further concluded that the trial court was correct in granting a “JNOV” from the finding that there was no course or scope of employment.Courts generally considering four factors when assessing vicarious liability, including whether the tortuous act: 1) was primarily employment rooted; 2) was reasonably incidental to the performance of an employment duty; 3) occurred during working hours; and, 4) occurred on the employer's premises. Applying these factors, the Court concluded that the battery by the officer was a “reasonable incident” of his duties.The plaintiff also sought punitive damages under 42 USC § 1983. The Court upheld the refusal to award punitive damages based upon its conclusion that the evidence did not show an evil motive or intent.
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Resource
WITHOUT “966(G) LANGUAGE,” SUCCESSFUL MOTION FOR SUMMARY JUDGMENT DOES NOT PRECLUDE THE “EMPTY CHAIR” DEFENSE
In Barrilleaux v. Board of Supervisors of Louisiana State University, 2015 WL 18714813 (La App. 1 Cir. 4/24/15), the Court was asked to consider what impact a summary judgment in favor of one defendant would have upon a hypothetical allocation of fault to that same defendant at a later date.In Barrilleaux, Dr. Bass moved for summary judgment, arguing that the plaintiff lacked any expert evidence to demonstrate a deviation in the standard of care. While the plaintiff advised that they had no opposition to the motion, they requested that the trial court include a provision in its order affirmatively stating that the Motion for Summary Judgment was granted because the facts showed that Dr. Bass was not at fault. Under LSA-C.C.P. art. 966(G), when such a finding has been made, this finding will preclude a later offering of evidence as to that party’s fault. Stated differently, Art. 966(G) precludes the “empty chair defense” to the remaining defendants.The trial court struck out the “966(G) language” in the proposed judgment because its ruling was based upon the lack of any evidence offered to show a deviation in the standard of care by Dr. Bass. Therefore, the remaining defendants could, at a later date, argue that Dr. Bass was at fault. On this subject, the trial judge stated as follows:I am not declaring that [Dr. Bass] was not at fault, I am just declaring that there is no genuine issue of material fact, but that - you don't have an expert and can't prove the standard of care at this time. Maybe Chabert, and I am not sure that it would be appropriate, but maybe they can at trial produce evidence to show that the fault in this case lies with [Dr. Bass].The Barrilleaux Court affirmed the trial court's refusal to make a 966(G) designation that Dr. Bass was not at fault.
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Resource
FOURTH CIRCUIT REAFFIRMS THE BREADTH OF THE “MARDI GRAS” IMMUNITY STATUTE
In Citron v. Gentilly Carnival Club, Inc. 2015 WL 1736937 (La. App. 4 Cir. 4/15/15), the Louisiana Fourth Circuit was asked to consider a summary judgment granted in favor of the Endymion Krewe in connection with its 2012 parade. Citing to the Mardi Gras immunity statute LSA-R.S. 9:2796, the Fourth Circuit affirmed the summary judgment.In Citron, the plaintiff was rendered unconscious when a full bag of beads was hurled onto her in connection with the “Extravaganza,” an invitation-only event held in connection with the Endymion Krewe’s parade. In her suit, the plaintiff contended that the Krewe was reckless and “grossly negligent” such that immunity should not apply. Further, the plaintiff argued that the Krewe’s practice of allowing masked riders increased the risk of harm.The Citron Court affirmed the principle that a Mardi Gras krewe is not vicariously liable for its member's conduct. To impose liability on a krewe, there must be evidence of the krewe’s - as opposed to its member’s - gross negligence.Through an extensive treatment of the concept of “gross negligence,” the Court distinguished it from ordinary negligence and defined it as an “extreme departure from ordinary care or the want of even scant care.” Citing to earlier decisions, the Court held that the intent of the Mardi Gras immunity statute is to eliminate liability for objects thrown to parade spectators “except in extreme and unusual circumstances.” Under the record made, the Court held that the alleged failure to prevent the throwing of a full bag of beads, even if heavy, did not rise to the high level of conduct necessary to show gross negligence.
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Resource
"LOW IMPACT" EXPERT TESTIMONY ALLOWED BY THE SECOND CIRCUIT
Attempts by defense counsel to use “low impact” expert testimony have been met by stiff resistance from the plaintiff's bar over the years. Pratt v. Culpepper, 2015 WL 848223 (La. App. 2 Cir. 2/27/15) is the latest example.In Pratt, the defense asserted that the impact between the two vehicles was slight and that the defendant merely “bumped” into the plaintiff’s vehicle. Defendant argued that the force of the impact was therefore insufficient to cause the damages alleged. The jury found for the defense.On appeal, the plaintiff alleged that the Trial Court erred in allowing expert testimony from defendant’s accident reconstruction, bio-mechanic and occupant kinematic expert. Although the defense expert was an engineer, and not a medical doctor, he was allowed to testify that, more likely than not, the plaintiff was uninjured as a result of the impact. He testified that the vehicle was designed to absorb the impact of the level experienced. There was no damage to the rear bumper absorber. The expert was careful to clarify that he was not definitively testifying that the plaintiff was uninjured.Plaintiff cited to a string of cases holding that force-of-impact testimony cannot be used to prove the extent of injuries. However, the Pratt Court reasoned that a Court is to evaluate all of the evidence and that the force-of-impact may prove relevant depending on the facts of a particular case. In its analysis, the Pratt Court cited to the First Circuit's decision of Fussell v. Roadrunner Towing and Recovery, Inc.,99-0194 (La. App. 1 Cir. 3/31/00), 765 So.2d 373, writ denied 00-1264 (La. 6/23/00), 765 So.2d 1042, which indicated that force-of-impact testimony may be relevant, especially where severe injuries are alleged in low-force accident. The Pratt Court declined to follow a recent Third Circuit opinion in Godchaux v. Peerless, Ins. Co., 13-1083 (La. App. 3 Cir. 6/4/14), 140 So.3d 187, which held that force-of-impact testimony cannot be used to prove a lack of causation.While the Pratt Court does indicate that force-of-impact expert testimony may be allowed, its decision was simplified under the facts of the case where the plaintiff's attorney, after challenging the defense expert, called the defense expert to the stand as a “hostile witness” during the plaintiff's case-in-chief.
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