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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
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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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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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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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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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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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"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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CONDUCT INVOLVED IN THE TRANSPORTATION OF PATIENT SUBJECT TO THE MEDICAL MALPRACTICE ACT
In Thomas v. Nexion Health at Lafayette, Inc., 14-609 (La. App. 3 Cir. 1/14/15), the Court was asked to decide whether an allegation that a healthcare employee negligently failed to use a motor vehicle restraint during patient transport constituted an act of alleged medical negligence subject to the Medical Review Panel process or a general tort. Citing to the Medical Malpractice Act, which specifically references the “handling of a patient,” the Court concluded that the claim sounded in medical malpractice. As such, the plaintiff was required to have submitted the matter to a Medical Review Panel prior to filing.
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WATSON FACTORS UTILIZED TO IMPOSE LIABILITY UPON A PLAINTIFF FOR FAILING TO READ PRESCRIPTION BOTTLE
In Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 972 (La. 1985), the Louisiana Supreme Court set forth numerous factors to assist the trier of fact in comparing fault between multiple parties. These factors include:
- Whether the conduct resulted from inadvertence or involved an awareness of danger;
- The risk created by the conduct;
- The significance of what was sought by the conduct
- The capacities of the actors, whether superior or inferior; and,
- Any extenuating circumstances which might require the actor to proceed in haste without proper thought.
The recent decision in Williams v. Walgreen Louisiana, Co. Inc., 14-716 (La. App. 5 Cir. 2/25/15) applies the Watson factors under interesting facts. In Williams, the plaintiff alleged a severe medical reaction, including multiple strokes, when the pharmacist gave the wrong prescription to her son who went to the pharmacy to purchase the prescription. Instead of her typical blood pressure medication, the plaintiff was given Zyprexa, a potent anti-psychotic medication. The bottle's label identified the medication and described the patient as someone other than the plaintiff. The Court held that the law required the plaintiff to review the bottle's label prior to ingestion.Under these facts, the Appellate Court upheld the following allocation of fault: Walgreen (60%), plaintiff (35%) and plaintiff's son (5%).
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News
February 2015 Firm News
A Court may rely on the contract terms between the parties to determine the existence and scope of duties owed. In Foster v. Sasol N. Am., Inc., No. 2:13 CV 2813, 2015 WL 338988 (W.D. La. Jan. 26, 2015), the Western District Court, citing Graham v. Amoco Oil co., F.3d 643 (5th Cir. 1994), granted the firm's Motion for Summary Judgment dismissing all claims against an on-site contractor for injuries to a sub-contractor's employee allegedly caused by the on-site contractor's negligence.
The United States District Court for the Western District of Louisiana, reasoned that the sub-contractor's contract with owner expressly assigned it the exclusive and sole responsibility to ensure its employees complied with the owner's safety requirements. Further, the client's contract with the owner did not include any supervisory oversight or safety obligations. Accordingly, the Court held that neither a duty nor an obligation to the Plaintiff existed because the terms of the contract determined the scope of the duties owed. All claims against the on-site contractor were dismissed. The case was handled by Keogh Cox attorneys John P. Wolff III, Chad A. Sullivan and Richard W. Wolff.
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SALES AND USE TAX ORDINANCE DECLARED AMBIGUOUS
In Pot-O-Gold Rentals, L.L.C. v. City of Baton Rouge, (La. 1/16/15), a taxpayer operating a waste removal business brought an action against the City of Baton Rouge seeking a refund of sales taxes. The taxpayer argued that EBR Sales & Use Tax Ordinance 10127 § 2 did not give Baton Rouge the authority to collect a tax on sanitation services because the services were provided independently of the actual leasing of property. On appeal, the Louisiana Supreme Court noted that an ambiguous tax ordinance must be interpreted in favor of the taxpayer. The Court found that the cleaning and sanitation services were routinely provided separate from the actual leasing of property. As such, the tax ordinance was ruled ambiguous as to services provided in connection with an otherwise taxable activity. The taxpayer was therefore not liable.
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