Blog
Explore news, articles, outcomes, and legal resources by category or practice area.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
deselect
No items found...
Resource
HOSPITAL NOT LIABLE FOR ALLEGED FAULT OF INDEPENDENT JANITORIAL SERVICE
In Smith v. Northshore Reg’l Med. Ctr., Inc., (La. App. 1 Cir. 1/26/15), the plaintiff was visiting a hospital when she slipped and fell in a puddle of water. The location of the fall was in a hallway where a janitor had been using a buffer machine immediately prior to the accident. The plaintiff filed a complaint against the hospital, the janitor individually, and the company providing the janitorial services.The hospital moved for summary judgment arguing that the relationship between the hospital and the janitorial service was not an employee/employer relationship. The trial court ruled in favor of the hospital, in part, because the hospital did not possess the right to exercise control over work performed by the janitorial service. The First Circuit upheld the decision noting that the “lack of control” suggested there was no genuine issue of material fact as to the absence of an employer/employee relationship.
No items found.
Resource
WORKERS’ COMPENSATION CLAIMANT ALLOWED BENEFITS DESPITE UNTRUTHFUL PRE-EMPLOYMENT QUESTIONNAIRE RESPONSES
In Lavalais v. Gilchrist Const. Co., LLC, (La. App. 3 Cir. 2/4/15), the Third Circuit extended workers compensation benefits to an employee despite a finding that the employee provided false answers to a routine pre-employment health questionnaire. The Court determined that the employee’s untruthful answers did not directly relate to the injury and therefore did not trigger a forfeiture of workers compensation benefits under La. R.S. 23:1208.1.Lavalais sustained injuries to his neck, back, and right knee in a car accident while in the employ of Gilchrist. Prior to the accident, Lavalais had suffered college football and accident-related injuries. Despite its finding that the plaintiff has been untruthful, the Court narrowly construed La. R.S. 23:1208.1 and held that Lavalais’ untruthfulness did not trigger forfeiture of benefits because the defendant did not meet its burden to show the prior injuries made re-injury “inevitable” or “very likely to occur.”
No items found.
Resource
CLAIM REJECTED WHERE SLIP AND FALL PLAINTIFF COULD NOT DEMONSTRATE THE CAUSE OF HER FALL
In Trench v. Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), — So.3d —, the court considered whether summary judgment was appropriate in a “slip and fall” where the plaintiff claimed that a store manager conceded that too much wax had been used in cleaning the floors. Despite this assertion, and the manager’s denial, summary judgment was upheld because the plaintiff lacked evidence to show what caused her fall. As such, plaintiff’s evidence was considered “mere speculation” and insufficient to defeat a supported summary judgment motion.
No items found.
Resource
SOPHISTICATED CONSUMER PRESUMED TO KNOW INHERENT DANGERS ASSOCIATED WITH HOT COFFEE
In Triche v. McDonald’s Corp., 14-318 (La. App. 5 Cir. 10/29/14), — So. 3d —, the plaintiff alleged that he was burned after an unreasonably hot cup of coffee fell out of defendant’s cup holder and spilled onto his leg and foot. The plaintiff asserted that defendant’s employee had failed to properly secure the coffee cup in the cup holder.The court noted that defendant’s duty to protect its patrons includes use of “to go” paper products by employees at drive-thru windows. However, the court upheld the dismissal of the claim because the plaintiff failed to demonstrate that the coffee was excessively hot or that the restaurant failed to properly secure the cups in the tray holder. In discussing whether the coffee was so hot as to be considered an unreasonably dangerous product under the Louisiana Products Liability Act, the court also determined that the plaintiff was a sophisticated consumer of coffee and therefore presumed to know the inherent danger associated with hot liquids.
No items found.
Insight
When No Higher Court Remains
On April 20, 2010, BP's Deepwater Horizon rig exploded at a cost of eleven lives. What followed was the largest accidental marine oil spill in history. In the aftermath, BP looked for a solution, ostensibly to cap its exposure and address a swirling PR disaster. BP began to actively negotiate a settlement.
On March 2, 2012, BP agreed to a detailed settlement which set forth specific criteria for recovery under the Fund created by the Agreement. In August of that year, BP asked U.S. District Judge Carl Barbier to approve the settlement. The Agreement was approved.
Despite championing the settlement, BP later filed a lawsuit seeking to set aside the settlement, unless it was interpreted as suggested by BP. BP's challenges were rejected by the Federal District Court. Thereafter, the New Orleans-based Fifth Circuit Court of Appeals affirmed that ruling in a 2-to-1 decision. BP then applied for a Petition of Writ for Certiorari with the United States Supreme Court in a final challenge to the settlement.
About BP's legal maneuvers, Samuel Issacharoff, a New York University Law Professor, said the following: "This case is about a contract that BP signed that it now wishes it hadn't."
One of BP's primary complaints was that, in effect, the settlement could be interpreted to provide recovery for individuals or businesses who could not show a direct link between a financial downturn and the spill. In response, it was stated that the settlement was crafted to use objective measures to gauge whether losses are recoverable.
On December 8, 2014, the U.S. Supreme Court rejected BP's Petition for Writ of Certiorari. As such, the settlement agreement first proposed by BP will remain in place. No higher court remains.
Under the Agreement, potential claimants have 6 months from the Supreme Court's Petition denial to file claims.
B.P.
Class Actions
Energy
Federal Courts
Gulf Oil Spill
Oil & Gas
Supreme Court
Resource
THE SCOPE OF IMMUNITY OFFERED TO AN LLC "MEMBER"
In Nunez v. Pinnacle Homes, LLC, 13-1320 (La. App. 3 Cir. 12/17/14), — So. 3d —, the Third Circuit upheld the imposition of personal liability upon a Member of the defendant LLC after the LLC failed to build plaintiff’s house at the proper elevation. The case was on remand from the Supreme Court with the instruction to consider the impact of the Supreme Court ruling in Ogea v. Merritt, 13-1085 (La. 12/10/13), 130 So. 3d 888, which had addressed the exceptions to the non-liability of LLC Members.Generally, a member of an LLC is protected from personal liability for damages allegedly caused by the LLC. However, La. R.S. 12:1320(D) outlines exceptions to the general rule. One such exception is a “breach of professional duty.” Adopting an expansive definition of “professional,” the Nunez court held that a licensed contractor qualified as a professional and was therefore personally liable 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.”The dissent in Nunez argued that the ruling improperly expanded what activities should be considered “professional” and potentially “open[s] any member or manager of an LLC to personal liability upon a finding of professional liability.” The dissent also questioned whether the majority faithfully interpreted Ogea. In this context, it would not be surprising to see the Supreme Court again take up the case.
No items found.
Resource
SLIP AND FALL CLAIM REVIVED BY LOUISIANA SUPREME COURT
In Becker v. Jefferson Parish Hospital District No. 2, 2014-1849 (La. 11/21/14), it was undisputed that the plaintiff slipped and fell on a foreign substance on the floor of the defendant hospital. The intermediate appellate court affirmed the trial court's decision to dismiss the lawsuit via summary judgment on the grounds that the plaintiff failed to demonstrate that he could meet his evidentiary burden to show that the hospital possessed actual or constructive knowledge of the foreign substance on the floor. The Louisiana Supreme Court reversed, concluding that there remained genuine issues of material fact left to be decided at trial. While not stated, the “material issue of fact” may have been created by the plaintiff's testimony that a hospital employee informed him that he had slipped on ultrasound gel (a condition most probably created by the hospital employees).
No items found.
Insight
Going Once, Going Twice ... A New Alternative to Design-Bid-Build Contracts
The 2014 Legislative Session brought new possibilities for large construction projects under the Public Contract Law. Generally, a public entity is required to separately hire a design professional to design the project, and let the project out for public bid for the construction work. "Design-build" contracts, in which the public owner contracts with one entity for the design and construction of the facility, are prohibited under Public Contract Law. However, the Legislature has now given public entities another option under the Public Bid Law: Construction Management at Risk Delivery Method (CMAR).
As a precursor to the new law, the Legislature granted special approval for use of the construction management at risk delivery method for several projects, to include the new airport terminal for the New Orleans Aviation Board at the Armstrong International Airport. This CMAR delivery method required two separate contracts for design and construction, but allowed selection of the construction contractor based on factors other than lowest construction cost. In other words, the design professional was selected in accordance with Public Contract Law, and the owner secured a lead construction firm during the design phase through an evaluation of the contender construction firms' qualifications, experience and history.
Under a construction management at risk delivery method, the selected lead contracting firm commits to deliver the final project for a maximum price. The owner has the option to award the construction contract to the firm after the design phase. Because the design professionals and the contractor are on the same team during the design phase, many industry leaders believe the construction management at risk method will help public entities control costs by allowing the contractor and designer to work together on scheduling, budgeting and constructability during the design phase. The goal also is to minimize the risk of construction and design disputes through the collaborative effort.
In 2014, via Act 782, the Legislature enacted La. R.S. 2225.2.4 which allows a public entity to use the CMAR method for projects estimated to cost 25 million dollars or more. The statute defines a CMAR contractor as one who is properly licensed, bonded and insured and can provide construction experience to the owner or its design professional and/or contracts with the owner to construct the project for a guaranteed maximum price, thus eliminating the need for a separate bid phase.
Under the statute, the public entity must advertise a request for qualifications to award a contract to a CMAR contractor for preconstruction and construction services in the official journal and website of the public entity. After the responses to the RFQ are received, a selection review committee makes a recommendation to the owner. This committee consists of one design professional not involved in the contract, one licensed contractor not involved in the contract, a representative of the owner and two members from the general public.
Once the CMAR contractor is awarded the contract, the contractor and the design professional are required to furnish the owner with a probable cost of the project at the 60% and 90% design completion phases. The CMAR contractor must provide the public entity a guaranteed maximum price for construction of the project. If the owner agrees with the guaranteed maximum price and the construction phasing and sequencing, the owner can award the construction contract to the CMAR contractor. If the public entity and the CMAR contractor cannot agree, the construction phase of the project will be re-advertised and let out for public bid.
Construction
Contracts
Public Bid Law
Resource
MOTORCYCLE COVERED UNDER AFTER-ACQUIRED VEHICLE UM PROVISIONS
In Green v. Johnson, et al., 14-C-0292, (La. 10/15/14), the lower court awarded summary judgment in favor of Allstate in a claim seeking UM policy benefits. The Green Supreme Court reversed and held that the representative of a deceased motorcycle accident victim could be entitled to UM coverage even though there was no coverage under the liability provisions of the policy. Under the facts, neither the victim nor the involved motorcycle respectively met the liability policy definitions of “insured person” or “insured auto.” The Court found that, even though there was no liability coverage under the policy, the motorcycle could nevertheless meet the “insured auto” definition necessary for coverage in the after-acquired vehicle provisions of the UM section of the policy.
No items found.
Resource
RE-EMERGENCE OF OBVIOUSNESS DEFENSE POST-BROUSSARD
In Rodriguez v. Dolgencorp, LLC, 2014 -1725 (La. 11/14/14), the plaintiff alleged that a “maze of shopping carts” in the defendant’s parking lot created an unreasonable risk of harm such that defendants should be liable for the injuries sustained after the plaintiff’s left foot came in contact with one of the carts. The defendant filed a motion for summary judgment after the plaintiff admitted that she saw the offending shopping cart prior to her fall. In reversal of the lower courts, the Louisiana Supreme Court opinion stated: “Courts have recognized that the mere presence of obstacles in a store, such as shopping carts, does not create an unreasonable risk of harm when the condition is open and obvious.” The opinion cites the Court's recent decision in Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14) which appears to have softened the perceived impact of Broussard v. State of Louisiana, 2012- 1238 (La. 4/5/13).
No items found.
Insight
What's the Delay? Contractor Delay Damages Under the Public Bid Law
Generally, a provision in a construction contract for private work limiting the contractor's right to recover additional costs arising from delays outside of the contractor's control may be enforceable. However, under the Public Bid Law, such a provision has been found to be against public policy. La. R.S. 38:2216 prohibits any public contract provision that purports to waive, release or extinguish the rights of a contractor to recover delay damages if the delay was caused in whole or in part by the acts or omission of the public entity.
A recent First Circuit decision struck down a contract provision that purported to limit a contractor's right to damages in a public contract. In F.H. Myers Const. Corp. v. State, Div. of Admin. Office of Facility Planning & Control, 2013-2153 (La.App. 1 Cir. 6/18/14), reh'g denied (July 22, 2014), a general contractor brought an action against the State for breach of contract, seeking payments for extended-fixed job site overhead.
The State argued that the contract contemplated that the contractor could recover extended-fixed job site overhead only if there was a complete stoppage of work solely attributable to the State. The contractor argued that the contract provision was in violation of La. R.S. 38:2216.
The court found that La. R.S. 38:2216 contemplates that a contractor who is a party to a public contract shall be able to recover for any delay they may suffer from the fault of the State entity. Because the contract waived the contractor's rights to seek damages for extended-fixed job site overhead for any delay short of a complete stoppage of work, the contract imposed a stricter limit on damages than the statute allows. The court also noted that the contract only allowed for damages where the State was 100% at fault, whereas the statute allows recovery even if the State is only partially at fault. As such, the provisions at issue were held to be void and unenforceable.
Construction
Contracts
Public Bid Law
Resource
NO “EASE OF ASSOCIATION” IN PERMITTING CASE
In Maw Enterprises, L.L.C. v. City of Marksville, 2014-0090 (La. 9/3/14), a premise owner filed suit against the City of Marksville based on the City’s failure to grant an alcoholic beverage permit to the premise owner’s lessee. The owner alleged that the failure to properly issue a permit caused harm in lower payments under the lease. In response, the City alleged that the premise owner did not have a cause of action, and the Supreme Court of Louisiana agreed. The Supreme Court reasoned that the permit was issued to the lessee, not the property owner. Thus, the owner possessed no cause of action concerning the permit's non-issuance.The owner also alleged a negligent interference with contractual relations by the City. However, the Court reasoned that there was no ease of association between the moral, social, and economic values involved with the duty to issue a retail alcoholic beverage permit and the economic loss allegedly sustained by an entity whose only interest arose from a lease with the permit applicant. Therefore, the Court ruled that the premise owner failed to state a cause of action upon which relief could be granted.
No items found.