LOUISIANA JUDICIAL COLLEGE AND LADC 2016 TORTS SEMINAR

Roosevelt Hotel, New Orleans, Louisiana Friday, December 9, 2016

The Changing Landscape of Louisiana Tort Law

DEAN THOMAS C. GALLIGAN JR. LSU Paul M. Hebert Law Center

PROFESSOR JOHN CHURCH LSU Paul M. Hebert Law Center

H. ALSTON JOHNSON, IIIPhelps Dunbar LLP

TORTS RECENT DEVELOPMENTS

2016

LSU LAW CENTER

John M. Church Harry S. Redmon, Jr. Associate Professor of Law

LSU, Paul M. Hebert Law Center Baton Rouge, Louisiana

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TABLE OF CONTENTS I. COLLATERAL SOURCE RULE ...........................................................................1 II. MEDICAL MALPRACTICE: COLEMAN V. DENO ..............................................1 III. INTENTIONAL TORTS ........................................................................................2

IV. TOXIC TORTS ...................................................................................................2 V. BROUSSARD, BUFKIN, AND THE CURRENT STATUS OF THE “OPEN AND OBVIOUS” DOCTRINE ...................................................................4 VI. SPOLIATION ......................................................................................................5 VII. NEGLIGENCE ....................................................................................................6 A. Duty/Breach ................................................................................................6 B. Causation.....................................................................................................11 C. La. R.S. 32:81 and Other Statutory Presumptions ......................................13 D. Damages ......................................................................................................13 E. Negligent Misrepresentation .......................................................................16 F. Allocation of Fault ......................................................................................17 G. Negligent Entrustment ................................................................................18 H. Miscellaneous .............................................................................................18 VIII. INTENTIONAL TORTS ........................................................................................20 IX. WRONGFUL DEATH/SURVIVAL ........................................................................20

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X. PRESCRIPTION ..................................................................................................20 XI. VICARIOUS LIABILITY ......................................................................................22 XII. PUNITIVE DAMAGES .........................................................................................24 XIII. GOVERNMENT IMMUNITY AND LIABILITY ......................................................25 XIV. MEDICAL MALPRACTICE .................................................................................27 A. Role of Medical Review Panel ...................................................................27 B. Duty/Standard of Care ................................................................................27 C. Medical Experts ..........................................................................................29 D. Patient Compensation Fund ........................................................................30 E. Prescription/Peremption ..............................................................................30 F. Application of the Medical Malpractice Act ..............................................31 G. Informed Consent/Alternative Therapies ..................................................32 XV. LEGAL MALPRACTICE .....................................................................................33 XVI. SLIP AND FALL ..................................................................................................34 A. No Evidence of Condition ..........................................................................34 B. Unreasonable Risk of Harm ........................................................................35 C. Actual or Constructive Notice of Condition ...............................................36 D. Reasonableness of Safety Measures ............................................................38 E. Persons to Whom Duty is Owed .................................................................38 XVII. DEFAMATION ..............................................................................................38

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XVIII. PRODUCT LIABILITY ..................................................................................39 XIX. IMMUNITIESWORKERS’ COMPENSATION ....................................................40 XX. INSURANCE AND INDEMNITY ............................................................................45 XXI. ABANDONMENT ................................................................................................49

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I. COLLATERAL SOURCE RULE Hoffman v. 21st Century N. Am. Ins. Co., 2014-2279 (La. 10/2/15); ____ So. 3d

____, 2015 WL 5776131, reh'g denied (Dec. 7, 2015)—Leading motorist brought personal injury action against following motorist. Following bench trial, the district court found defendant to be 100% at fault and awarded total damages in amount of $6,978. Plaintiff appealed award of special damages, and the First Circuit affirmed. On appeal to the Louisiana Supreme Court, the Court considered the “collateral source rule,” where a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor's procuration or contribution. Any payments received by the plaintiff from an independent source are not deducted from the award the injured party would otherwise receive from the wrongdoer; in short, the tortfeasor is not allowed to benefit from the victim's foresight in purchasing insurance and other benefits. However, the collateral source rule does not apply to attorney-negotiated write-offs or discounts for medical expenses obtained as a product of the litigation process. Thus, the Court held that injured motorist was entitled to reimbursement of only the actual amount paid to and accepted by medical provider for magnetic resonance imaging (MRI) scans, rather than the initial charged amount, which was then discounted pursuant to an arrangement that motorist's attorney had with provider.

Lockett v. UV Ins. Risk Retention Group, Inc., 180 So. 3d 557 (La. App. 5 Cir.

2015) —The Fifth Circuit distinguished Hoffman and found the collateral source rule applicable to a reduction in medical expenses negotiated by plaintiff, rather than plaintiff’s attorneys.

II. MEDICAL MALPRACTICE: COLEMAN V. DENO

Billeaudeau v. Opelousas General Hospital Authority, 2016-C-0846, ____ So. 3d

____, 2016 WL 6123862 (La. Oct. 19, 2016) —Patient suffers severe brain damage after misdiagnosed stroke. Issue in case is whether “negligent credentialing” falls within purview of Louisiana Medical Malpractice Act. Majority concludes that negligent credentialing claim sounds in general negligence, relying on the Coleman factors (Coleman v. Deno, 813 So. 2d 303 (La. 1/25/02)), the court concludes that the alleged negligent credentialing was administrative, not medical, in nature. Three Justices dissented.

Dupuy v. NMC Operating Co., 2015-1754 (La. 3/15/16); 187 So. 3d 436, 2016 WL

1051523—Patient brought medical malpractice action against hospital based on hospital's alleged failure to properly maintain and service equipment utilized in sterilization of surgical instruments. The district court granted exception of prematurity in part and denied it in part. Hospital sought writ. The First Circuit denied writ. The Supreme Court granted writ and held that Plaintiffs’ claim that the hospital failed to properly maintain and service equipment used in sterilization of surgical instruments fell within the Medical Malpractice Act. Therefore, patient was first required to present his claims to medical review panel.

White v. The Glen Retirement System d/b/a Village Health Care at the Glen, 50,508-CA (La. App. 2 Cir. 4/27/16); 2016 WL 1664502—Plaintiff alleged that the nursing

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home committed intentional tortious acts outside the MMA. The nursing home’s documentation refuted the allegation. The primary claim regarding the failure to position the bed relates to the negligent rendering of care and assessment of the patient’s condition and was not merely a custodial act claim. The Court of Appeal affirmed the trial court’s grant of exception of prematurity. III. INTENTIONAL TORTS

Dileo v. Horn, 2015–CA–0684 (La. App. 5 Cir. 3/16/16), 189 So. 3d 1189—

Plaintiff alleged that his sister and his former girlfriend converted his rugs and furniture. In rendering judgment in favor of plaintiff, the trial court held that comparative fault could be applied to reduce his recovery for his negligence because conversion is not an intentional tort invoking CC Art. 2323(C).1 Thus, no fault was allocated to plaintiff. The Fifth Circuit reversed, holding that “[i]t is undisputed an act of conversion is an intentional tort in Louisiana.” The trial court also held that fault should not be allocated between the defendants because under CC Art. 2324(A)2 they conspired to commit an intentional tort. The Fifth Circuit disagreed, concluding that La. C.C. arts. 2323, 1917 and 1812 do not set forth an exception for solidary obligors with respect to the trial court's obligation to assign fault. Furthermore, while a solidary obligor is fully liable for the entire amount of damages awarded to the plaintiff, La. C.C. art. 1804 permits a solidary obligor who pays the entire award to seek contribution in the amount of the virile portion owed by each obligor. La. C.C. art. 1804 provides that the virile portion is determined from the fault assigned to each solidary obligor. Accordingly, the appellate court assigned 70% fault to one defendant and 30% to the other.

IV. TOXIC TORTS Boudreaux v. Bollinger Shipyard, 15-CA-1345 c/w 15-C-0958 (La. App. 4 Cir. 6/22/16), ____ So. 3d ____, 2016 WL 342153—Survivors of shipyard worker, who died of lung cancer, brought wrongful death action against purchaser of shipyard, alleging that worker suffered substantial exposure to asbestos while working. The Appellate Court upheld the trial court’s decision to exclude Plaintiff’s proposed expert testimony on causation because plaintiffs offered no other evidence or testimony to substantiate the reliability of the expert’s opinions. Summary judgment in favor of defendants was confirmed because the survivors failed to establish that the worker's alleged asbestos exposure was the cause-in-fact of his lung cancer.

Sutherland v. Alma Plantation, LLC, 15-CA-1136 (La. App. 4 Cir. 5/4/16), 193 So. 3d 1178—Employers may owe a duty to members of employees’ households “resulting from exposure to asbestos fibers carried home on its employee’s clothing, person, or personal effects.” “Although duty is a question of law, summary judgment on the issue of

1 “Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.” 2 “He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.”

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duty is proper ‘only where no duty exists as a matter of law and no factual or credibility disputes exist.’” quoting Teter v. Apollo Marine Specialities, Inc., 12–1525, pp. 14–15 (La. App. 4 Cir. 4/10/13), 115 So. 3d 590, 598, quoting Parish v. L.M. Daigle Oil Co., 98–1716, pp. 11–12 (La. App. 3 Cir. 6/23/99), 742 So. 2d 18, 25. The Fourth Circuit concluded that the case before it was not one of the exceptional cases in which there is no duty as a matter of law. The court then analyzed foreseeability as a measure of whether the harm that occurred was within the duty. Where the husband came home from work covered in asbestos dust during his employment and his wife washed his clothes, genuine issues of material fact remained that would assist in determining whether the company owed a duty to the wife. Plaintiffs presented evidence of industrial knowledge of the dangers of asbestos and take-home exposure. Summary judgment in favor of defendant reversed.

Bailey v. Exxon Mobil Corp., 15-CA-225 (La. App. 5 Cir. 12/23/15); 184 So. 3d

191—Seventy individuals brought wrongful death and survival actions against multiple oil companies arising out of their deceased relatives' exposure to naturally occurring radioactive material (NORM) and other hazardous, toxic, and carcinogenic radioactive materials, which accumulated on inside of pipes used in oil production. Defendants served discovery requests on plaintiffs, which included requests for admission asking plaintiffs to admit they had no evidence to prove a causal link between the decedents' alleged exposure to NORM and their deaths. Plaintiffs did not respond and never provided any evidence to prove causation. The Court of Appeals affirmed the trial court’s decision granting the defendants’ motion for summary judgment and dismissing the plaintiff’s claim with prejudice.

Konrick v. Exxon Mobil Corp. and Chalmette Refining, Corp., 14-524 (E.D. La. 2/14/16); ____ So. 3d ____, 2016 WL 430404: affirmed 2016 WL 6127557 (5th Cir. 10/20/2016)—Plaintiff, who was pregnant during her term of employment as a security guard at Exxon Chalmette Refinery, was charged with various tasks, including checking crew members' identification badges and bags as they entered the refinery. Plaintiff alleged that this work exposed her and her fetus to toxic substances, specifically benzene and hydrogen sulfide, which caused her to suffer fetal demise and a stillbirth delivery. Plaintiff further alleged that defendants negligently designed and maintained the refinery and that they negligently failed to warn refinery personnel of the reproductive hazards associated with exposure. The court excluded all three of plaintiff’s expert witnesses based primarily on the methodology used in their analysis and their reliance on studies with results that did not exhibit statistically significant results. As there was no other general causation evidence in this case, the Court did not address the experts' specific causation opinions or defendants' argument against the methodology underlying those opinions. Because plaintiff did not make the requisite showing on causation, the Court granted defendants' motion for summary judgment.

Hooks, et al. v. Nationwide Housing Systems, LLC, et al., 15-729 (E.D. La. 7/11/16); ____ So. 3d ____, 2016 WL 3667134—Litigation derives from injuries that Plaintiffs allegedly suffered when they were exposed to mold in their modular home, purchased from defendants. The Court points out that, in a toxic mold case, plaintiffs must establish causation on five different levels: (i) the presence of mold, (ii) the cause of the

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mold and the relationship of that cause to a specific defendant, (iii) actual exposure to the mold, (iv) the exposure was a dose sufficient to cause health effects (general causation), and (v) a sufficient causative link between the alleged health problems and the specific type of mold found (specific causation). Plaintiff provided opinions and/or testimony from six experts. The Court excluded the testimony of two experts for not submitting a report per the Code of Civil Procedure, three experts based on unreliable analysis and/or lack of qualifications, and two because their medical reports were insufficient to establish specific causation and their opinions failed to pass muster under the Daubert test. The Court granted summary judgment in favor of defendants, as plaintiffs failed to establish general and specific causation as to their toxic tort claims involving mold. V. BROUSSARD, BUFKIN AND THE CURRENT STATUS OF THE “OPEN AND OBVIOUS”

DOCTRINE

Moore v. Murphy Oil USA, Inc., 15-CA-0096 (La. App. 1 Cir. 12/23/15), 186 So. 3d 135, writ denied, 16–00444 (La. 5/20/16), 191 So. 3d 1066—Plaintiff drove to a gas station/convenience store, parked car at a pump, and entered the store. After making a purchase and while he was exiting, plaintiff turned back to speak to the store manager. Plaintiff’s foot made contact with a pallet containing a display of bottled water outside the door. If stacked full, the display would have been even with the door handle. Some gallon jugs on the bottom tier of the display were missing, exposing the black plastic corner of the pallet. The corner of the pallet protruded over a yellow line perpendicular to the door frame. Defendant moved for summary judgment on the ground that the risk of harm was open and obvious. The trial court denied the motion for summary judgment and held after trial that the pallet encroaching into the walkway created an unreasonably dangerous condition. The Third Circuit affirmed, finding that plaintiff raised several questions of fact regarding whether the display may have been unreasonably dangerous: 1) was the display unreasonably close to the door; 2) although the display was large and obvious, the protruding corner of the pallet may not have been; and 3) the exit was partially obscured from the inside of the store by merchandise and advertising information placed in front of the window.

McCoy v. Town of Rosepine, 2015-898 (La. App. 3 Cir. 3/9/16); ____ So. 3d ____,

2016 WL 889511, reh'g denied (Apr. 13, 2016)—Employee, who was injured when he stepped into an uncovered water meter, located in close proximity to the apartment building where he was working, and fell backwards into shrubs, brought action against town and owner of apartment building. Employer intervened to recover the workers' compensation benefits it had paid on employee's behalf as a result of the accident. The district court granted town's and owner's motions for summary judgment, and employee and employer appealed. The Court of Appeal reversed and held that there was a material issue of fact as to whether the uncovered water meter would have been open and obvious to all who might encounter it precluded grant of summary judgment to building owner and town. No evidence was presented on summary judgment that the uncovered water meter would have been open and obvious to all who might have encountered it.

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Temple v. Morgan, et al., 15-CA-1159 (La. App. 1 Cir. 6/3/16); 196 So. 3d 71; 2016 WL 3126117, writ denied —Pedestrian filed a complaint against property owner and city after she tripped and fell on broken section of sidewalk, fracturing her left wrist. The district court granted city summary judgment. Pedestrian appealed. The Court of Appeal affirmed and held that defect to sidewalk was open and obvious.

Rose, et ux. v. Liberty Mutual Fire Ins. Co., et al., 15-1184 (La. App. 3 Cir.

5/18/16); 192 So. 3d 881—Worker brought negligence action against warehouse owner and its insurer to recover damages for injuries allegedly sustained when he slipped and fell while attempting to pull a pallet over a bridge that had to be created from a warehouse to worker’s truck and that did not lie flat but, rather, had a large hump. The district court granted summary judgment to warehouse owner and its insurer. Worker appealed. The Court of Appeal reversed and remanded and held that genuine issue of material fact existed as to whether defect was open and obvious to all who encountered it. Although the defect may have become “open and obvious” to plaintiff at the time the pallet jack became stuck, considering the height differential over such a large area, it was not necessarily “apparent to all who encounter the dangerous condition.”

VI. SPOLIATION

Sayre v. PNK (Lake Charles), LLC, 2015-0859 (La. App. 3 Cir. 3/23/16), 188 So. 3d 428, writ denied 192 So.3d 780 (La. 2016)—Plaintiff tripped and fell at the defendant’s place of business. Plaintiff claimed that the defendant, in violation of its own policies, neither preserved videotape of its inspection of the area nor obtained witness statements from witnesses at the scene. As a result, the plaintiff claimed that the trial court should have given an adverse presumption charge to the jury requiring the defendant to rebut the presumption that the evidence would have been unfavorable to it. The trial court refused to give the requested instruction and the jury found for the defendant. The Third Circuit reversed.

The court noted that the Supreme Court in Reynolds v. Bordelon, 172 So. 3d 589 (La. 2015), rejected the tort of negligent spoliation but recognized that Louisiana recognizes the adverse presumption against litigants who had access to evidence and did not make it available or destroyed it. In this case, the defendant had a policy in place to gather and maintain control of the evidence and thus the defendant assumed the duty to gather and control evidence; the defendant had knowledge of the potential litigation, and managed to preserve four minutes of surveillance tape showing the fall and the immediate time thereafter, but deleted the thirty minutes before and most of the thirty minutes after the fall. Under the circumstances, the plaintiff was entitled to the adverse presumption that the missing evidence would have been unfavorable to the defendant.

Tomlinson v. Landmark American Ins. Co., 2015-CA-0276 (La. App. 4 Cir.

3/23/16), 192 So. 3d 153—Spoliation of evidence refers to the intentional destruction of evidence for the purpose of depriving the opposing party of its use at trial. An essential element of a spoliation claim is the intent of the party alleged to be a spoliator, which after Reynolds must be greater than the general negligence standard. Here, regardless of whether the defendant’s surveillance system preserved videos for three days or two weeks, the

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surveillance video was erased pursuant to a routine business practice. Summary judgment in favor of defendant on the spoliation claim affirmed. Summary judgment in favor of defendant on issue of liability reversed because the plaintiff submitted sufficient evidence from which a trier of fact may reasonably infer that the restaurant’s failure to routinely and properly maintain the floors in a safe condition caused her to slip and fall.

Tsegaye v. City of New Orleans, 2015-0676 (La. App. 4 Cir. 12/18/15); 183 So.3d

705, writ denied, 2016-0119 (La. 3/4/16); 188 So. 3d 1064—Taxi cab driver, who was injured when light pole fell on him while he was waiting for a fare outside hotel, filed suit against city, which owned pole, and against engineering company, which was contractually tasked by the city with inspecting its poles and issuing work orders for repairs to the poles, and against electric company, which was contractually tasked by the city with responding to engineering company's repair orders. The Fourth Circuit held that whatever duty engineering company might have had to preserve the light pole, the company's duty did not arise until after it was served with driver's petition for damages, which post-dated the removal of the evidence in question. Accordingly, driver did not establish spoliation of evidence claim.

Reynolds v. Bordelon, 2014-2362 (La. 6/30/15); 172 So. 3d 589—The Louisiana Supreme Court held that Louisiana does not recognize a cause of action for negligent spoliation of evidence. Here, a motorist brought an action against the manufacturer of the air bags in his vehicle because they failed to properly deploy. The motorist also asserted claims against his insurer and the custodian of his vehicle after the accident for negligent spoliation of evidence. The plaintiff motorist claimed that the custodian failed to preserve the vehicle after the accident until the allegedly defective equipment could be inspected. The Court reasoned that Louisiana’s public policy does not permit the recognition of a duty to preserve evidence. Further, the Court reasoned that if it recognized the tort of negligent spoliation, it would be going against public policy because the tort would not help deter undesirable conduct, would raise problems with compensation of victims, would place restrictions on property rights without allowing predictability regarding potential liability, and would strip the legislature of any deference. Finally, the Court stated that there were other means of redress—there are sanctions against first-party spoliators and contractual options with third-party spoliators.

VII. NEGLIGENCE

A. Duty/Breach Ray Ex Rel. Children v. Stadium Chevron, Inc., 2016-CW-0445 (La. Ct. App. 1

Cir. 6/27/16); ____ So. 3d ____; reh'g denied (8/3/16)—Plaintiff named Chevron USA, Inc. and gas distributor Lard Oil Co. in a suit filed against Stadium Chevron gas station after he and his family were attacked at the store. Plaintiff was beaten unconscious by a man at the store and his wife and daughter were also punched during the altercation. The trial court denied a motion for summary judgment filed by defendants Chevron USA and Lard Oil Co. The Court of Appeals reversed the trial court’s decision and dismissed Chevron and Lard Oil Co. from the suit. The court held that neither company owed a duty

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to protect Plaintiff and his family. It also stated that even though a business establishment is not the insurer of the safety of its patrons, a business proprietor (Stadium Chevron) owes his patrons the duty to provide a reasonably safe place

Pillow v. Roymar Limited Partnership, 15-CA-730 (La. Ct. App. 5 Cir. 6/30/16)

(not chosen for publication)—Under Louisiana law, the owner of a building is generally liable for the condition of the leased premises except according La. Rev. Stat. 9:3221 enables the lessee to assume responsibility for the condition of the premises in the lease contract, unless the owner knew or should have known of the defect or had received notice of the defect and failed to remedy it within a reasonable time. An owner does not have a duty to inspect the leased property and there was no evidence that the owner knew or should have known of the defective handrail.

Santos v. Dollar Mania, Inc., 50,481-CA (La. Ct. App. 2 Cir. 6/22/16); 197 So. 3d

701; 2016 WL 3414817—Parents brought negligence action against store operator after their four-year-old child was injured when a belt rack fell on her. The district court entered summary judgment in favor of operator. Parents appealed. The Court of Appeal reversed and remanded and held that triable issues of fact existed whether operator exercised reasonable care in failing to stabilize belt rack, and whether child, who lifted and released a number of belts, acted in a manner that was or should have been anticipated by store.

Searile v. Ville Platte Medical Center, LLC d/b/a Mercy Regional Medical Center,

et al., 15-1183 (La. App. 3 Cir. 6/1/16); 194 So. 3d 1205—Patient filed a premises liability and negligence complaint against hospital after she sustained ant bites while receiving treatment in the ICU at hospital. The district court granted hospital summary judgment. Patient appealed. The Court of Appeal affirmed and held that the patient failed to establish that hospital knew, or should have known of the presence of ants in hospital, as required to establish her premises liability claim, and there was no evidence of a duty or breach of any duty by hospital.

Hayes v. Sheraton Operation Corp., et al., 16-CA-0038 (La. App. 4 Cir. 5/25/16);

156 So. 3d 1193, writ denied ___ So.3d ___(La. Oct. 17, 2016)—Plaintiff’s minor daughter brought action against charter school board arising from the off-campus rape of a female student at a non-school function, alleging that the school board was negligent in preventing the bullying and harassment of its students, ensuring that a school crisis management plan was implemented, and properly supervising its students. Summary judgment in favor of charter school board affirmed because it had no duty to prevent injury to plaintiff’s daughter at a non-school function, off campus, after the end of the school year.

Nearhood v. Anytime Fitness, et al., 15-1142 (La. App. 3 Cir. 5/4/16); 191 So. 3d

707, writ denied191 So.3d 1031 (La. April 15, 2016)—Gym patron brought action against gym operator, franchisor, and machine manufacturer, seeking to recover from personal injuries he allegedly sustained while exercising on gym’s machine. Franchisor moved for summary judgment which district court granted and Court of Appeal affirmed. Where a franchisor does not exert day-to-day control over its franchisee’s management procedures,

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our courts have found that the franchisor does not have custody of the alleged defective premises.

Sutherland v. Alma Plantation, LLC, et al., 15-CA-1136 (La. App. 4 Cir. 5/4/16);

193 So. 3d 1178—Employers may owe a duty to members of employee’s households “resulting from exposure to asbestos fibers carried home on its employee’s clothing, person, or personal effects.” Plaintiff’s former husband came home from work covered in asbestos dust during his employment and his wife washed his clothes, genuine issues of material fact remained that would assist in determining whether the company owed a duty to the wife. Summary judgment in favor of defendant reversed.

Vail v. Schiro Brothers Shoe Store, Inc., et al., 16-CA-47 (La. App. 5/12/16); 193

So. 3d 342—Patron of shoe store brought action against shoe store and uniform store, which leased premises from principal owner of shoe store, alleging that, while leaving shoe store, she tripped over a step placed in parking lot and sustained serious damages and injuries. Summary judgment for uniform store affirmed. By obligating the lessor to repair and maintain the parking lot while simultaneously prohibiting the lessee from making any alterations, additions, or improvements to the leased premises or from making use of the sidewalks for any purpose other than access to and from the store, the leased agreement granted the lessor the exclusive right to repair and maintain the parking lot in which the step was located and imposed a reciprocal duty on the lessor to prevent any vice or defect in the parking lot from harming another therein.

Burch v. SMG, 14-CA-1356 c/w Keely v. The Louisiana Stadium and Exposition

District and/or Louisiana Superdome, 14-CA-1357 c/w Stamps v. State of Louisiana, 14-CA-1358 (La. App. 4 Cir. 4/7/16); 191 So. 3d 652, writ denied 192 So.3d 767 (La. June 17, 2016)—Patrons filed personal injury action against State and stadium management company for injuries allegedly sustained in elevator accident following professional football game. The district court found that SMG’s duty to Superdome patrons included the specific duty to properly control the operations of its elevators and control the number of persons accessing the elevators after events. Overcrowding of Superdome elevators after an event was a known problem. SMG is liable to plaintiffs, without comparative fault, for injuries suffered in the elevator accident

Mitchell v. State of Louisiana, DOTD, 50,432-CA (La. App. 2 Cir. 3/23/16); 193 So.3d 152; reh'g denied (5/12/16)—The state’s duty is to inspect for dead trees and remove them within a reasonable time. The state is not required to inspect for all trees and remove those with potential to fall on the road. The tree at issue was green and healthy from the ground up and not leaning. Jury verdict in favor of defendants affirmed.

Boyd v. Cebalo, 15-1085 (La. App. 4 Cir. 3/16/16) 191 So. 3d 59, 2016 WL 1061064—Female university student, who allegedly was inappropriately touched by male student while sleeping in her bed in dormitory, stated cause of action against university for negligence for failing to properly secure premises, provide safe housing environment, comply with industry standards regarding door locks and other security measures, provide safe campus, and implement measures to protect students in residence halls from

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foreseeable criminal events. Female student lived in a two-room suite. Male student, who was guest of female student's suitemate, entered female student's room through shared bathroom, which could only be locked from inside bathroom. The Fourth Circuit found that Male student's actions could have been prevented had university provided locking mechanism on interior of female student's room.

Ducote v. Boleware, 15-0764 (La. App. 4 Cir. 2/17/16); ____ So. 3d ____, 2016

WL 659022—Pedestrian plaintiff filed suit against neighbor and neighbor's homeowners' insurer to recover damages for injuries allegedly sustained when she was bitten by cat allegedly owned by neighbor. The plaintiff had to undergo anti-rabies vaccine injections because the defendant could not produce proof the cat had been vaccinated. The Fourth Circuit affirmed in the district court’s granting of summary judgment in favor of the defendant. The record was devoid of any evidence that defendant’s cat had exhibited dangerous propensities before the incident in question. Plaintiff’s allegations of negligence based on defendant’s violation of statutory ordinances regarding the care of his cat were insufficient to establish negligence under the duty-risk analysis. Even assuming the violation of the ordinance requiring an owner to provide proof of current rabies vaccination status supports a duty, the record did not support a finding that defendant’s violation of that ordinance was the legal cause of plaintiff undergoing the anti-rabies treatments.

Tsegaye v. City of New Orleans, 15-0676 (La. App. 4 Cir. 12/18/15); 183 So.3d

705, writ denied, 2016-0119 (La. 3/4/16); 183 So.3d 1064 (La. March 4, 2016)—Taxi cab driver, who was injured when light pole fell on him while he was waiting for a fare outside hotel, filed suit against city, which owned pole, and against engineering company, which was contractually tasked by the city with inspecting its poles and issuing work orders for repairs to the poles, and against electric company, which was contractually tasked by the city with responding to engineering company's repair orders. The Fourth Circuit held that engineering company did not have constructive knowledge of the light pole's defective nature so as to establish claim under statute, providing that individuals are responsible, not only for the damage occasioned by their own act, but for that which is caused by the act of persons for whom they are answerable, or of the things which they have in their custody. There was no indication that company failed to carry out either the yearly daytime inspections or the weekly nighttime inspections, and from record, it was impossible to tell whether pole's allegedly defective nature existed for such a period of time that company should have discovered it through the inspections.

Nearhood v. Anytime Fitness-Kingsville, 2015-308 (La. App. 3 Cir. 11/4/15); 178 So. 3d 623, reh'g denied (Dec. 30, 2015), writ denied, 2016-0211 (La. 4/15/16); ____ So. 3d ____, 2016 WL 1719354—Gym member brought action against owner of gym, seeking to recover for personal injuries he allegedly sustained while exercising on gym's squat machine. The Third Circuit held that gym member was a sophisticated user who knew the dangers presented by safety stops of squat machine on which he was exercising when he was injured, such that gym owner had no duty to warn member of such dangers. Gym member began weight-lifting twelve years before accident in question, used similar squat machines beginning three years before accident, began regularly using squat machine on which he was injured at least three to four times per week approximately nine months

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before accident, and had never requested additional services for fitness training or for a fitness coach after signing membership agreement containing assumption of risk provision.

Doucet v. Alleman, 2015-246 (La. App. 3 Cir. 10/7/15); 175 So. 3d 1094, writ

denied 179 So.3d 1107 (La. Oct. 23, 2016)—Motorcyclist's widow and son brought negligence action against dealership that had organized demonstration ride during which motorcyclist was struck and killed by motorist who had veered off road and overcorrected into the lane of the motorcyclist. The motorist had taken a Xanax at 7:00 am and drank a beer at 9:30 or 10:00 a.m. The Third Circuit held the legal cause of motorcyclist's death was motorist's negligence, rather than actions of motorcycle dealership that hosted demonstration ride involving ten to twelve motorcycle riders. Motorist testified that he was distracted upon seeing demonstration ride due to his interest in motorcycles as a motorcycle enthusiast. Increased conspicuousness would not have deterred motorist's distraction. Additionally, dealership had tested route prior to event and had inspected route for hazards, and all riders were required to show valid driver's license and to wear helmets. The dealership’s duty could not extend to the type of harm in the manner in which it arose.

Doucet v. Alleman, 2015-255 (La. App. 3 Cir. 10/7/15); 175 So. 3d 1112— In the

above case, (Doucet v. Alleman, 2015-246 (La. App. 3 Cir. 10/7/15); 175 So. 3d 1094) the Third Circuit affirmed the lower court’s granting summary judgment in favor of the coordinator of the event. No evidence was offered that a safer, more appropriate route was available, that the conditions of the roadway were unreasonable dangerous, or that any other safety measures would have prevented the accident.

Kenner Plumbing Supply, Inc. v. Rusich Detailing, Inc., 14-922 (La. App. 5 Cir. 9/23/15); 175 So. 3d 479, reh'g denied (Oct. 20, 2015), writ denied, 2015-2115 (La. 2/5/16); 186 So. 3d 1165—Building owner, tenant, and insurer filed petition for damages sustained as a result of fire against landlord of neighboring building, building's tenant, tenant's owners, and tenant's employees. Evidence supported finding that fire started in alley between buildings as a result of negligence of tenant’s employee who worked in automobile repair shop in one of the buildings, causing damage to neighboring building. Employee told witness that employee had been in alley sometime prior to fire using a heat source to work on automobile bumpers, expert witness concluded that fire had originated in alley due to employee heating bumpers in alley, and expert testified that there was no evidence of an electrical failure in neighboring building that could have started fire. The Fifth Circuit affirmed the trial court’s finding that landlord was liable under La. C.C. art. 667 because it knew or should have known of the tenant’s employee’s negligent activity taking place on the property and that it failed to exercise reasonable care to prevent the resulting damage.

Espinosa v. Accor N. Am., Inc., 2014-1276 (La. App. 4 Cir. 7/8/15); 174 So. 3d 123—Motel guest brought action against motel franchise, its insurer, and others, alleging that motel was liable for shooting by armed robber that rendered guest a paraplegic, as broken gate enabled robber to enter motel parking lot. The Fourth Circuit held that motel franchisor did not have a duty to protect the motel guest from the shooting where franchisor did not have authority to exercise control over day-to-day operations of motel and the

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franchise agreement between franchisor and local franchisee provided that safety and security of motel patrons was franchisee's sole responsibility. Additionally, franchisee was solely responsible for all employment decisions, and franchisor did not manage motel or own motel or land, such that motel guest did not rely on franchisor's alleged representation of safety when deciding to stay at motel. Motel guest stated that he stayed at franchise locations about 50 to 75 percent of time and that he looked for something that was close to his job.

Lawrence v. Sanders, 49,966 (La. App. 2 Cir. 6/24/15); 169 So. 3d 790, writ

denied, 2015-1450 (La. 10/23/15); 179 So. 3d 601—A granddaughter brought personal injury action against her grandmother for injuries allegedly sustained when she fell while attempting to climb down a ladder after cleaning off her grandmother’s roof. The granddaughter filed suit against her grandmother and her grandmother’s insurer, alleging that she was injured due to the dangerous and defective condition of the ladder, and that she suffered injuries to her wrist, neck, and back. Defendants argued that the plaintiff granddaughter was required to prove that her grandmother knew or should have known of a defect in the ladder, that the damage could have been prevented with the exercise of reasonable care, and that her grandmother failed to exercise reasonable care. Citing Bufkin, the appellate court affirmed the trial court’s granting of defendant’s motion for summary judgment because the grandmother did not have a duty to protect against that which is obvious and apparent to everyone. The court held that the granddaughter was in a better position to know of the state of the latter, so any hazards of the use of the ladder were open and obvious.

B. Causation

Massery v. Rouse’s Enterprises, LLC, 16-CA-121 (La. Ct. App. 4 Cir. 6/29/16)

(not chosen for publication)—Location of grocery cart in the refrigerated portion of the grocery store created an unreasonable risk of harm.

Williams-Ball v. Brookshire Grocery Co., 50,722-CA (La. Ct. App. 2 Cir.

6/29/16); 198 So.3d 195; 2016 WL 3541455—Patron sought damages for injuries sustained when she slipped and fell on a clear egg like substance on floor of grocery store. The district court found in favor of store, and patron appealed. The Court of Appeal affirmed. The patron failed to prove that the store employee created the damage-causing condition and failed to prove constructive notice of damage-causing condition, which requires that a plaintiff make a positive showing of the existence of the damage-causing condition for some time period prior to the fall although the time period need not be specific in minutes or hours.

Boudreaux v. Bollinger Shipyard, 15-CA-1345 c/w 15-C-0958 (La. Ct. App. 4 Cir.

6/22/16) (not chosen for publication)—Summary judgment in favor of asbestos defendants and their insurers granted after trial court excluded Dr. Liuzza’s proposed expert testimony on causation. Evidentiary ruling affirmed because plaintiffs offered no evidence or testimony, except for Dr. Liuzza’s own testimony, to substantiate the reliability of his opinions. The Court of Appeal affirmed summary judgment in favor of defendants.

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Searile v. Ville Platte Medical Center, LLC d/b/a Mercy Regional Medical Center,

et al., 15-1183 (La. App. 3 Cir. 6/1/16); 2016 WL 3077789—Patient filed a premises liability and negligence complaint against hospital after she sustained ant bites while receiving treatment in the ICU at hospital. The district court granted hospital summary judgment. Patient appealed. The Court of Appeal affirmed and held that the patient failed to establish that hospital knew, or should have known of the presence of ants in hospital, as required to establish her premises liability claim, and there was no evidence of a duty or breach of any duty by hospital.

Serou, et al. v. Touro Infirmary, et al., 15-CA-0747 (La. App. 4 Cir. 4/13/16) (not

chosen for publication)—Plaintiff alleged that generator at Touro failed and caused the death of a patient after Hurricane Katrina. The district court found that the damages sustained by the patients in the acute care unit were caused solely by the joint fault of Touro and the acute care unit, not the generator manufacturer.

Wiltz v. Floor & Decor Outlets of Am., 15-516 (La. App. 5 Cir. 2/24/16); 186 So.

3d 1204, writ denied 192 So.3d 1204 (La., May 27, 2016)—Customer who was injured when a bench on which she sat inside store suddenly collapsed, causing her to fall to ground, failed to establish what the alleged defect was or what caused the bench to fail, as required to recover on negligence and premises liability claims. There was no evidence to prove customer's weight contributed to the accident or that she weighed over bench's 300-pound weight capacity restriction, and there was no evidence to show whether, alternatively, the bench collapsed as result of a hidden defect caused by manufacturer's negligence or a loose screw resulting from improper assembly or maintenance.

Robertson v. St. John the Baptist Par., 15-240 (La. App. 5 Cir. 10/14/15); 177 So. 3d 785—Parish residents who experienced flood damages following hurricane brought class action, alleging claims for negligence against Parish, and against contractors performing pipeline construction work for allegedly exacerbating the flood damages. The Fifth Circuit held the allegations in parish residents' petition, and their contention that “water cannot pass through an earthen levee” in response to pipeline contractors' motion for summary judgment, were insufficient to establish how pipeline contractors caused or contributed to residents' flood damages following hurricane. Additionally, the Fifth Circuit held that Parish was absolutely immune from residents' suit pursuant to the immunity provision of the Louisiana Homeland Security and Emergency Assistance and Disaster Act.

Doucet v. Alleman, 2015-254 (La. App. 3 Cir. 10/7/15), 175 So. 3d 1107—In the

above case, (Doucet v. Alleman, 2015-246 (La. App. 3 Cir. 10/7/15); 175 So. 3d 1094) the Third Circuit held that motorist's Louisiana Department of Public Safety and Corrections probation officer was not legal cause of accident despite motorist's failure of numerous drug tests leading up to accident. Even if officer had been aware of positive drug tests, it was impossible to know whether motorist's probation would have been revoked or if he would have been incarcerated instead of driving on day of accident. Officer could not have foreseen that motorist would veer off road because of distraction by procession and would

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overcorrect. Moreover, motorist's probation officer was exempt from liability due to qualified immunity. Although officer should have inquired into drug testing results that testing company failed to send to her, the acts of probation officer pertaining to revocation of probation were discretionary. There is no statutorily mandated course of conduct officers were mandated to follow, and it was trial court's function to determine if it would have revoked probation. LSA–R.S. 9:2798.1; LSA–C.Cr.P. art. 899(F).

C. La. R.S. 32:81 and Other Statutory Presumptions

Bush v. Mid-South Baking Co. LLC, 15-CA-540 c/w 15-CA-732 (La. App. 5 Cir. 5/26/16); 194 So.3d 1170—Housley presumption is only appropriate when it has been established that plaintiff was healthy before the accident, was unhealthy afterwards, and there is a reasonable possibility of a causal connection between the accident and the injury. Here, plaintiff presented no evidence to show that he was healthy prior to the accident. To the contrary, plaintiff admitted that he was receiving worker’s compensation at the time of the automobile accident, which indicates that he had some kind of injury that made him unable to work. Therefore, Housley presumption was not applicable in this case.

Larson v. XYZ Ins. Co., et al., 15-CA-0704 (La. App. 4 Cir. 3/23/16); 192 So. 3d

181—Visitor of equestrian facility brought action against operator of facility for damages due to injuries she suffered when a horse bit off her thumb. The district court entered summary judgment in favor of operator. Visitor appealed. The Court of Appeal reversed because there were underlying genuine issues of material fact that were relevant to determining whether the exception in the Equine Immunity Statute, La. Rev. Stat. 9:2795.3, affording immunity protection against a spectator’s liability claims, applied.

Jewitt v. Alvarez, 50,083 (La. App. 2 Cir. 9/30/15); 179 So. 3d 645—Driver who

rear-ended another motorist's vehicle brought action against motorist, seeking damages for injuries sustained. After bench trial, the district court found motorist 100% at fault in causing the accident. Motorist appealed. The Second Circuit affirmed the lower court, holding that although a presumption of negligence generally arises when a following motorist is involved in a rear-end collision, the following motorist may escape liability for the collision by establishing that the unpredictable driving of the preceding motorist created a sudden emergency that the following motorist could not have reasonably anticipated. Here, witness testified the forward motorist was travelling at a low rate of speed and appeared to be stopped, and the following motorist testified she saw the forward vehicle had stopped and attempted to maneuver to the next lane but was prevented from doing so because of traffic in that lane.

D. Damages

Warren v. Shelter Mutual Ins. Co., 15-354 c/w 15-838 and 15-1113 (La. Ct. App.

3 Cir. 6/29/16); ____ So.3d ____; Defective steering system caused occupant of boat to be ejected and to suffer fatal injuries. Punitive damages of $23,000,000 under general maritime law against manufacturer of steering system affirmed.

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Renfro v. Burlington Northern Santa Fe Railway Co., et al., 15-372 (La. App. 3 Cir. 5/11/16); 193 So.3d 1192—Teenage girl was killed when the car she was driving was struck by a train as she was crossing a railroad track with allegedly defective signage. The district court awarded damages to the mother. The Court of Appeal reversed and found that the mere demonstration that federal funds were used at a particular railroad crossing was insufficient to establish federal preemption of state tort law. Rather, the railway company must present evidence that would lead to an unequivocal conclusion that the signage at a particular crossing was installed or replaced with federal moneys. Trial court’s allocation of 32% fault to plaintiff, 31% to railroad, and 29% to DOTD affirmed. Trial court’s reduction of the 29% of the total general damages awarded against DOTD in accordance with the statutory cap on damages provided by La. Rev. Stat. 13:5106 affirmed. General damage award in favor of mother was reduced.

Schexnayder v. Bridges, 15-786 c/w 15-787 (La. App. 1 Cir. 2/26/16); 190 So.3d

764—Motorist filed negligence action against truck driver, truck driver's employer, and their insurer in connection with a three-vehicle collision. The district court entered judgment on jury verdict that allocated 65% of fault to truck driver and 35% of fault to a second motorist and awarded a total of $1,481,939.92 in damages. Defendants appealed. The First Circuit affirmed a $1,481,939.92 verdict in favor of plaintiff for neck and back injuries finding that the jury was not manifestly erroneous or clearly wrong in allocating most of the fault to truck driver.

Joseph v. Netherlands Ins. Co., 15-549 (La. App. 5 Cir. 2/24/16); 187 So. 3d 517—60 year old woman motorist brought an action for damages against another motorist in connection with a rear-end collision. The district court entered into judgment on a jury verdict in favor of the plaintiff for $10,000. Plaintiff appealed. The Fifth Circuit found the general damages award of $10,000 was unconscionably low for 60-year-old woman where accident aggravated her pre-existing arthritic spine condition, caused her to seek 16 months of conservative care, and inhibited her ability to fully participate in outdoor activities she formerly enjoyed. The Fifth Circuit increased the damages award by $18,500.00.

Averette v. Phillips, 2015-0137 (La. App. 1 Cir. 11/10/15); 185 So. 3d 16—

Motorist brought action against driver and driver's employer to recover for injuries allegedly sustained when she was rear-ended by driver. The district court entered judgment for motorist, upon jury verdict, awarding future special damages but not future general damages. Defendants appealed. The First Circuit held that the verdict awarding motorist future special damages in form of medical expenses was not rendered inconsistent by fact that jury did not also award future general damages for pain and suffering. Motorist only asked for award of damages for future medical treatments to minimize and prevent pain, and did not ask for future general damages because she would have minimal pain and suffering between medical procedures. Motorist's attorney made a strategic decision to ask for 20 years of conservative medical treatment only.

Mitchell v. Access Med. Supplies, Inc., 2015-0305 (La. App. 1 Cir. 11/9/15); 184 So. 3d 118—Passenger on public bus brought personal injury action against bus driver and his insurer for injuries allegedly sustained when sudden stop of bus caused him to be thrown into large change box. The lower court entered judgment on jury verdict that

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awarded passenger general damages of $1,000 for past pain and suffering along with other damages. Passenger appealed. The First Circuit held that the jury did not abuse its discretion in awarding only $1,000 in general damages. Passenger gave inaccurate histories to his medical providers, as he did not disclose to his chiropractor that he suffered seizure that caused him to fall on his back and that he had previous head injury resulting from being struck with frying pain. Additionally, an expert in orthopedic medicine testified that he did not find any convincing evidence that passenger sustained injuries as result of bus incident, and passenger did not present evidence as to particular effects claimed injuries had on his daily life.

Guidry v. Lafayette Health Ventures, Inc., 2015-307 (La. App. 3 Cir. 11/4/15);

191 So.3d 1— After driver of mini-van ran a red light and collided with another vehicle, which then collided with passenger's vehicle, passenger brought suit against mini-van driver, his employer, and employer's liability insurer. The jury returned a verdict finding passenger was not entitled to any damages. Passenger filed a motion for a new trial, which was denied. Passenger then appealed. The Third Circuit reversed based on a finding that all the medical evidence supported a finding that plaintiff’s pre-existing conditions were aggravated as a result of the accident. The court awarded $9,574.50 for lost wages, $26,244.22 for past medical expenses, and $25,000 in general damages.

Arabie v. Citgo Petroleum Corp., 2015-324 (La. App. 3 Cir. 10/7/15); 175 So. 3d

1180, writ denied, 2015-2040 (La. 1/8/16); 184 So.3d 694—In an action against refinery, the Third Circuit held that general damages award of $30,000 per construction worker, for injuries caused from refinery's major oil and wastewater spill, which injuries included headaches, sinus problems and other flu-like symptoms, was not an abuse of discretion. Despite refinery's contention that the damages were, on average, three times more than same district court had awarded to a similar plaintiff group, workers at same location with same exposures, and same basic health complaints, those plaintiffs had sustained injuries that were significantly less in duration than the workers in current case.

Prejeant v. Gray Ins. Co., 15-87 (La. App. 5 Cir. 9/23/15); 176 So. 3d 704—Motorist brought action for damages against shipyard and its insurer for injuries she sustained when rear-ended by truck driven by shipyard's employee. The Fifth Circuit held that the trial court's use of unit-in-time method, which determined what pain and suffering was worth in monetary terms for given unit of time and multiplied that amount by number of units for expected duration of pain and suffering, for awarding $16,000 in general damages to motorist was not abuse of discretion. While the Louisiana Supreme Court generally disapproves of the use of formulas in calculating damage awards, the unit-of-time method is not unanimously rejected by Louisiana circuits, and the trial court was not manifestly erroneous in employing it here.

Reed v. LaCombe, 2015-120 (La. App. 3 Cir. 7/29/15); 172 So. 3d 679, writ not considered, 2015-1640 (La. 10/30/15); 179 So. 3d 612—Driver and passengers of vehicle brought action against merging motorist, who was a state employee, following vehicle collision. Driver developed seizures after the accident. The court of appeal held that evidence was insufficient to support finding that collision was the cause of driver's seizure

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condition, as would be required for award of special damages for non-diagnostic expenses related to condition, but that driver could recover damages for medical expenses he incurred in hospital visit four days after collision, wherein driver first complained of seizure-related activity. Additionally, the court of appeal held that general damages award of $10,000 to eight year old vehicle passenger was not excessive. Passenger subsequently complained of a headache daily with vomiting, and headaches were interfering with passenger's schooling.

Howard v. United Servs. Auto. Ass'n, 2014-1429 (La. App. 1 Cir. 7/22/15); 180 So. 3d 384, writ denied, 2015-1595 (La. 10/30/15); 179 So. 3d 615—Motorist and her husband filed action against driver of second vehicle and her insurer for injuries sustained when motorist's vehicle was rear-ended and pushed through a wooden fence. The district court entered judgment on jury verdict in favor of motorist, which awarded $30,000 for past medical expenses, $2,500 for lost wages, and $9,500 in general damages, for a total of $42,000 in damages, but declined to order husband damages for loss of consortium. Motorist and her husband appealed. The court of appeal held the damages awarded to the motorist were adequate but that husband of the motorist was also entitled to damages in the amount of $3,000 for loss of consortium. Husband testified, that, prior to accident, he and motorist had enjoyed weekend outings but were unable to do that for several months that motorist was suffering from injuries, that, after accident, their sexual relationship went downhill and that they sought help from a marriage counselor, and that his trying to step in for motorist in helping her sons with school work and disciplining them caused a lot of stress between himself and sons, as well as with motorist. Additionally, while the jury may not have believed that motorist was injured to extent she claimed, it compensated her for some injury, and, thus, a damages award was appropriate for husband's loss of consortium.

E. Negligent Misrepresentation Hopkins v. Coco, 2014-1191 (La. App. 4 Cir. 7/29/15); 174 So. 3d 201—Plaintiffs listed their residential property for sale and entered into an Agreement to Purchase with Defendant. The Act of Sale did not take place as Defendant was unable to secure financing. Plaintiffs filed a petition for damages against Defendant, Defendant’s real estate agent, and the real estate company as the agent’s employer. The petition alleged that Defendant failed to make a good faith effort to secure financing and that the real estate agent failed to timely notify Defendant’s lender that they had agreed to reduce the purchase price to the appraised value of the property. The Second Circuit held the real estate agent did not breach her duty to timely notify the lender about the reduction in sale price, and thus, Plaintiffs’ claim of negligent misrepresentation failed. To recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach. The agent did not receive Plaintiff’s amended agreement until the morning of the deadline for the act of sale. Additionally, Plaintiffs could have sought an extension of the sale date to give lender additional time to consider loan at the lower sale price, but they did not. Finally, the purchaser never asked agent to request an extension.

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F. Allocation of Fault

Chatman v. Southern University at New Orleans, 15-CA-1179 (La. Ct. App. 4 Cir. 7/6/16); 197 So. 3d 366, 2016 WL 3613265—Plaintiff sued SUNO for severe injuries sustained after being beaten in her dorm by her roommate and her roommate’s cousin in an altercation over food. The jury found SUNO 15% at fault in causing plaintiff’s injuries. The court concluded that the risk of a vicious physical attack on plaintiff by a nonstudent minor who was not authorized to be present in the apartment was easily associated with SUNO’s duty to ensure the safety of its students who live in SUNO’s on-campus housing.

Brown v. City of Shreveport, 50,402-CA (La. App. 2 Cir. 3/16/16); 188 So.3d 341

—Plaintiff slipped and fell due to 2-inch deviation in a sidewalk. Trial court’s apportionment of 50% fault to plaintiff because she should have been looking down while walking and would have noticed the defect was manifestly erroneous because it is unreasonable to expect a pedestrian walking on a sidewalk to constantly look down for danger. Plaintiff’s fault lessened to 25%. The general damage award was raised.

Prejean v. State Farm Mut. Auto. Ins. Co., 2015-499 (La. App. 3 Cir. 1/6/16); 183

So. 3d 823, writ denied, 2016-233 (La. 4/4/16); 190 So. 3d 1204 — Two horseback riders brought negligence action seeking damages after horse was struck by vehicle. The Third Circuit held horseback rider is not required to outfit her horse with lights if she rode dark-colored horse on roadway at dusk, even though vehicles were required by statute to use lighted lamps between sunrise and sunset; no law required a horse, traveling without an attached vehicle, to be illuminated. However, the court found that the trial court was manifestly erroneous when it found motor vehicle driver to be 100% at fault in causing collision. Rider was riding a dark horse, while wearing dark clothes, at dusk on a roadway, and numerous people called police to report that horses were traveling on the roadway, which they considered to be dangerous. Additionally, driver had his lights on before the accident. The court found horseback rider and motor vehicle driver were each 50% at fault in causing the collision. Solomon v. Am. Nat. Prop. & Cas. Co., 49,981 (La. App. 2 Cir. 9/4/15); 175 So. 3d 1024, reh'g denied (Oct. 5, 2015)—Motorist and passenger brought action against driver of second vehicle and her insurer, arising out of an automobile accident. The trial court assigned 20 percent fault to motorist and 80 percent fault to driver and rendered judgment in favor of motorist and passenger. Driver and insurer appealed. The Second Circuit reversed finding that the driver was not at fault for colliding with motorist’s vehicle. After stopping at a stop sign, a motorist may not proceed until the way is clear; the stopped motorist must look for and evaluate oncoming traffic and look a second time before proceeding. When an intersection is blind or partially obstructed, the duty to determine that the way is clear before proceeding is heavy and requires a great degree of care. In contrast to the relatively heavy duty on a motorist at a stop sign, the motorist with the right of way has a minimal duty; it is a duty of ordinary care toward drivers entering from side streets. Here, motorist stopped at stop sign, could not cross intersection because of traffic backed up in lane of road, and attempted to cross when unknown operator stopped in traffic waved

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her through even though she could not see oncoming traffic. Driver was traveling on road with right of way, was not speeding, and was not cited for any traffic violation.

Berthiaume v. Gros, 2015-116 (La. App. 3 Cir. 6/3/15); 165 So. 3d 1275—Driver and her passenger, who were injured when motorist's truck rear-ended their car, brought action against motorist and truck's insurer. The district court found that the motorist was solely liable for the accident, and his insurance policy covered his liability. On appeal, the Third Circuit held that a material issue of fact regarding liability an unknown vehicle that was a partial cause of the accident precluded summary judgment in favor of the plaintiff on the issue of the motorist’s sole liability for the accident. Comparative fault allows a percentage of fault to be allocated to each party that contributes to an injury or loss, and this allocation is made regardless of whether the person is a party to the action or a nonparty, or that the other person's identity is not known or reasonably ascertainable.

G. Negligent Entrustment Toups v. Dantin, 2015-1635 (La. 11/6/15); 182 So. 3d 36—Defendant was driving

a vehicle owned by his wife on Louisiana Highway 1 in Lafourche Parish on the morning of January 20, 2011. Defendant passed a vehicle at a high rate of speed in a non-passing zone and rear-ended a vehicle driven by Plaintiff. Plaintiff’s vehicle was forced into the opposite lane of the two-lane highway and collided head-on with a garbage truck. Plaintiff was killed as a result of the impact. Defendant had alcohol, alprazolam, and a metabolite of cocaine in his blood stream. Plaintiff’s parents brought a wrongful death action and alleged that Defendant’s wife negligently entrusted her vehicle to Defendant. The First Circuit found that Plaintiff’s parents could not establish a negligent entrustment claim and granted motion for summary judgment for the Defendant. The First Circuit explained that defendant’s wife noticed nothing unusual about Defendant’s behavior on night of accident. The wife only had one key for her car, which she kept in her purse when she was not operating the car. Finally, she specifically denied giving Defendant permission to drive her car (181 So. 3d 33.) The Supreme Court reversed the First Circuit’s decision and remanded, finding there was a genuine issue of material fact as to whether defendant, knew or should have known, that her husband was likely to drive her vehicle in an impaired, negligent, and/or intoxicated state.

H. Miscellaneous Coburn v. Dixon, et al., 15-1095 (La. App. 3 Cir. 4/27/16); 190 So. 3d 816—To

successfully make a claim against a landlord for damages caused by a tenant’s dog, the plaintiff must show that the landlord had actual knowledge of the dog’s vicious propensities. Summary judgment in favor of landlord affirmed.

Simmons v. Brookshire Grocery Co., 50,521-CA (La. App. 2 Cir. 4/13/16); 194

So. 3d 653—Customer who allegedly contracted food poisoning after eating fruit cup sold by grocery store filed negligence action against store. The district court granted summary judgment to store. Customer appealed. The Court of Appeal affirmed because the plaintiff

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failed to produce evidence that the store took part in the preparation, processing, or manufacturing of the allegedly tainted fruit cup.

Myers v. Acadia Parish Police Jury, et al., 15-976 (La. App. 3 Cir. 4/6/16); 189

So.3d 571—Motorist filed suit against parish police jury and DOTD to recover both personal injury and property damages he allegedly sustained when his vehicle ran through the intersection and into the ditch, alleging that there was a heavy fog impairing visibility and that the stop sign was twisted or down, and thus, he had no warning of the intersection. The Court of Appeal affirmed summary judgment in favor of defendants because motorist did not establish damages claim against parish police jury since police jury did not have custody and control over stop sign and DOTD did not receive actual or constructive notice of the defect in the stop sign prior to the accident.

Rayfield v. Millet Motel, 15-496 (La. App. 5 Cir. 1/27/16); 185 So.3d 183—Motel

was not responsible for injuries that resident sustained when ceiling above her head and the wall to her side fell inwards and on top of her during hurricane. Hurricane was classified a force majeure or “Act of God,” there was no known defect in the fire door that caused resident's injuries, resident was not just an occasional nighttime guest, it was illogical to argue that resident would require motel's employees to force her onto the streets during an approaching hurricane, and, finally, resident knew of the approaching storm.

Tsegaye v. City of New Orleans, 2015-0676 (La. App. 4 Cir. 12/18/15); 183 So. 3d

705, writ denied, 2016-0119 (La. 3/4/16); ____ So. 3d ____, 2016 WL 1098493—Taxi cab driver, who was injured when light pole fell on him while he was waiting for a fare outside hotel, filed suit against city, which owned pole, and against engineering company, which was contractually tasked by the city with inspecting its poles and issuing work orders for repairs to the poles, and against electric company, which was contractually tasked by the city with responding to engineering company's repair orders. The Fourth Circuit held that the doctrine of res ipsa loquitur was not applicable to action. There was no indication that company had exclusive control or custody over the light pole, and driver offered nothing save possibilities and speculation in order to establish the cause of the light pole's failure.

Simmons v. State, Dep't of Children & Family Servs., 2015-0034 (La. App. 4 Cir. 6/24/15); 171 So. 3d 1147—Parents, individually and on behalf of their minor children and their deceased child, brought action against coroner for gross negligence and intentional infliction of emotional distress for allegedly misplacing deceased son's body and, nine months later, cremating and burying body without notifying family. The district court granted coroner's peremptory exception of no cause of action. Parents appealed, and the Fourth Circuit reversed. The Fourth Circuit found that Parents sufficiently alleged cause of action for negligence against coroner. Parents alleged that coroner failed to issue mandated certificate stating cause of death of child who died shortly after admission to hospital, and alleged that coroner misplaced body for a long period of time and then cremated and buried body without notifying family, thus preventing them from obtaining independent autopsy or providing burial.

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VIII. INTENTIONAL TORTS

Martinez v. Wilson, 2015-0384 (La. App. 1 Cir. 12/17/15); 185 So. 3d 65—Bar patron filed petition for damages against defendant based on alleged battery that occurred when defendant punched patron in face during patron's attempt to break up fight between defendant and patron's friend. The First Circuit held that patron did not present sufficient evidence of injuries sustained as result of being punched by defendant, as required to make prima facie case for battery on motion to confirm default judgment. Patron's testimony at hearing on motion to confirm that he suffered broken jaw from being punched in face was inadmissible hearsay, in that he was not qualified to render that opinion, and he introduced no competent medical evidence to prove existence of injuries and causal connection between battery and injuries.

IX. WRONGFUL DEATH/SURVIVAL

Roark v. Liberty Healthcare Systems, Inc. and Evanston Ins. Co., 50,632 (La. App.

2 Cir. 5/20/16); ____ So. 3d ____, 2016 WL 2961389—Two children of deceased father brought medical survival and wrongful death action against nursing home. District Court awarded $40,000 on the survival action and $30,000 in wrongful death damages to each child. Court of Appeal reversed finding the awards to be abusively low. The trial judge was clearly wrong in finding that the decedent suffered only during the last 15 minutes of life because the record demonstrated that he suffered increasing pain, difficulty breathing, and anxiety beginning in the early morning and escalating during the afternoon hours preceding his collapse and death from suffocation. Survival award raised to $75,000. Further, the record did not reasonably support the trial court’s finding that the decedent had an estranged relationship warranting minimal wrongful death damage awards. Wrongful death awards increased to $75,000 for each child.

Miller v. Thibeaux, 2014-1107 (La. 1/28/15); 159 So. 3d 426—The Louisiana

Supreme Court relied on its decision in Udomeh v. Joseph, 11-2839 (La. 10/26/12); 103 So. 3d 343, to hold that a putative father’s allegations of biological paternity of his decedent child, in a wrongful death action, provide notice to the defendant that paternity is an issue in the case and can be reasonably construed as stating an action for filiation. “Within the context of a wrongful death and survival action, the putative father’s allegations of biological paternity of the decedent child can be reasonably construed as stating an avowal action, as there was no other purpose an allegation of paternity could have served.”

X. PRESCRIPTION

Kennedy v. Washington/St. Tammany Regional Medical Center, 2015-1099 (La. App. 1 Cir. 4/7/16); 192 So. 3d 764, cert. denied (6/17/16)—Workers' compensation claimant filed a disputed claim for benefits. The Workers' Compensation Judge sustained employer's peremptory exception of prescription, and dismissed claimant's claim for medical benefits. Claimant appealed. The Court of Appeal held that an employer’s payment for a second medical opinion examination of a claimant by the employer’s physician, who

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is not the claimant’s treating physician, does not constitute the payment of a “medical benefit” for purposes of prescription under La. Rev. Stat. 23:1209(C).

Moody v. Murray, 50,398 (La. App. 2 Cir. 4/6/16); 189 So. 3d 508—Parents of

children injured in school bus accident brought tort action against city and bus driver. The district court granted the city’s and driver’s exception of prescription. The Court of Appeals reversed, holding that the original petition, filed in city court (which lacked jurisdiction over the city), interrupted prescription against both the driver and city.

When an action is commenced in an incompetent court or one of improper venue, prescription is interrupted only as to defendants served within the prescriptive period. Plaintiff filed suit against the City of Shreveport and its employee in a negligence action in city court. While the city court did not have jurisdiction over the suit against the city, it did have jurisdiction over the claim against the city’s employee. However, city court was not a court of proper venue and defendants were not served until after the prescriptive period had run. But, when the employee filed an answer to plaintiff’s petition, he waived any objection to improper venue. Therefore, the petition in city court interrupted prescription as to the employee, and it also interrupted prescription against the city because the city would be liable under the doctrine of respondeat superior, pursuant to which the city is the employee’s solidary obligor.

Lapuyade v. Rawbar, Inc. d/b/a Acme Oyster House, 2015-0705 (La. App. 5 Cir.

4/13/16); 190 So. 3d 1214—Plaintiff sued Acme Restaurant within one year of becoming sick with food poisoning. More than a year later, she added Little Tokyo and two others associated with Little Tokyo as defendants, alleging that Little Tokyo was the source of the food poisoning. The trial court granted defendants’ exceptions of prescription, and the court of appeal reversed. Plaintiff reasonably relied on her treating physician’s opinion that the cause of her salmonella poisoning was food from Acme and the ignorance of the involvement of the Little Tokyo defendants in the salmonella outbreak was not willful or inexcusably neglectful. The doctrine of contra non valentem applied in this case and suspended the running of prescription until October 2013, when plaintiff was made aware by another doctor that the CDC had identified the source of the salmonella outbreak as tuna scrape, which could be traced back to the new defendants. Further, a Google screenshot, introduced as evidence to show what information was readily available to plaintiff had she conducted an internet search of the specific illness she had contracted, was erroneously allowed into evidence by the trial court. While certain documents are self-authenticating, there is no statutory provision providing for the self-authentication of the results of a Google search.

Kelly v. Christus Schumpert, 50,577 (La. App. 2 Cir. 4/13/16); ____ So. 3d ____,

2016 WL 1448938—Mother of patient, who left the hospital unmonitored, fell outside, and died, brought medical malpractice action against hospital and doctor. The trial court granted the doctor’s exception of prescription. Plaintiff appealed, arguing that her claim against the doctor was timely because prescription was interrupted by the timely filing of the original malpractice complaint against the hospital and that she could not have filed suit earlier against the doctor because she did not discover the malpractice until June 2014, when her expert told her that the doctor had misdiagnosed the decedent. Also, she filed suit

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against the doctor within one year of discovery of malpractice and within three years of the death. While plaintiff’s filing against the hospital suspended the running of prescription against the doctor, it only suspended the time within which a similar claim for review could be filed against the doctor with the Commission. Her claim against the doctor in the district court was premature and thus did not interrupt or further suspend plaintiff’s malpractice claim against the doctor. Regarding the “date of discovery” argument, prescription began on the date of death, when all the information needed relative to a claim against the doctor was available to plaintiff.

Caballero v. Keystone Customs, L.L.C., 15-722 (La. App. 5 Cir. 3/16/16); ____

So. 3d ____, 2016 WL 1078170—Homeowners brought action against general contractor, subcontractor, and subcontractor's insurer, alleging damages to home following leveling and elevation work. The district court granted summary judgment in favor of subcontractor and insurer. The homeowners appealed. The Court of Appeal held that the homeowners' claims were subject to one-year prescriptive period applicable to tort claims and that prescriptive period began to run on date that the homeowners were aware of two-inch dip in slab upon which home was situated. XI. VICARIOUS LIABILITY

Knoten v. Westbrook, 14-CA-0892 c/w 14-CA-0893, 14-CA-0894, 14-CA-0895,

14-CA-0896 (La. App. 4 Cir. 5/18/16); 193 So. 3d 380, reh’g denied (May 31, 2016)—A well-established general rule under Louisiana law is that an employer is not liable for torts committed by an individual who is an independent contractor in the course of performing his contractual duties. Yet, there is an equally well-established exception to this rule in that an employer may be liable if it maintains operational control over the activity in question.

A commercial truck driver transporting a load of plants owned by Nurseryman’s Exchange, Inc. was involved in an accident causing numerous fatalities. Nurseryman’s contracted with a freight forwarder, who in turn contracted with the motor carrier who employed the truck driver. The jury that found Nurseryman’s was not vicariously liable, but the judgment was reversed because the trial court erred by failing to instruct the jury on the legal standard for dual employment (also known as the borrowed employment or the “two masters” rule).

On de novo review, the court found that the driver instruction sheet that Nurseryman’s made the driver sign before she departed with the load required her to agree to a list of instructions. This was enough to establish that Nurseryman’s maintained operational control over the driver’s activities and, therefore destroyed their independent contractor defense. Consequently, Nurseryman’s was found to be vicariously liable for the driver’s negligence.

Fonseca v. City Air of Louisiana, LLC, et al., 2015-1848 (La. App. 1 Cir. 6/3/16);

____ So. 3d ____, 2016 WL 3126125—Customer sued air conditioning company alleging he was injured by a repairman sent to his home by the company. Trial court granted summary judgment in favor of defendant/company. Appellate court reversed because the trial court improperly weighed the credibility of the witnesses in determining that the

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tortfeasor was an independent contractor and not an employee of the defendant/company at the time of the alleged attack.

Garcia, et al. v. Lewis, 50,744 (La. App. 2 Cir. 6/22/16); ____ So. 3d ____, 2016

WL 3417746—An employee reported to his employer that his co-employee had stolen something. The employer fired that employee, who then committed a battery against the employee who had reported him. The battered employee then brought a tort action against his employer and summary judgment was granted in favor of the employer. The Appellate court reversed and remanded, noting that triable issues of fact existed as to whether the battered employee’s act of reporting the fired employee’s job performance made the fired employee’s conduct employment rooted.

Ledet v. Robinson Helicopter Co., 2015-1218 (La. App. 1 Cir. 4/15/16); 195 So.

3d 89—An employee is acting within the “course and scope” of his employment when the employee’s action is (1) of the kind that he is employed to perform, (2) occurs substantially within the authorized limits of time and space, and (3) is activated at least in part by a purpose to serve his employer. The pilot involved in the accident was the chief pilot for the defendant/employer and received a salary regardless of how many hours he was required to fly for the employer, but the pilot was permitted to fly as a contract pilot for other companies, and was not scheduled to fly for the employer on the day of the accident. Here, the circumstantial evidence failed to support that the pilot was flying in furtherance of the defendant employer’s business.

Rhodus v. Lewis, 2015-CA-1454 (La. App. 1 Cir. 4/15/16), 193 So. 3d 215—Two

men, ages 22 and 23, were arrested and charged with burglary and criminal damage to property. Plaintiff sued the parents of the men, alleging that they failed to properly monitor their sons, both as minors and adults, and knew their sons conducted criminal activity from the parents’ home. “Generally, a father and a mother are responsible for damage caused by their minor child who lives with them. LSA–C.C. arts. 2317 and 2318.” The strict liability of parents for children ends when a minor child reaches 18 years old, the age of majority, because the parents then no longer have the legal right to control the child. To state a cause of action against the parents of an adult tortfeasor, a plaintiff must allege some act of negligence by the parents themselves, i.e., some breach of a duty the parents owe to the plaintiff. Plaintiff alleged the parents were the children’s custodians and knew they engaged in criminal activities while living in their home and thus had a duty to reasonably monitor them and their failure to do so resulted in plaintiff’s damages. However, even assuming such awareness, no controlling law imposes a duty on parents to monitor an adult child, control his actions, or exclude him from their home.

Carr v. Sanderson Farm, Inc., 2015-CA-0953 (La. App. 3 Cir. 2/17/16), 189 So. 3d 450—Plaintiff alleged that her co-worker threatened her with bodily harm outside the workplace. The plaintiff told her supervisors, who informed her that they could not do anything because the threats were made off work property. Subsequently, while at work, the co-worker deliberately struck the plaintiff twice with a piece of equipment (a pallet jack). The plaintiff sued, contending that her employer was vicariously liable (respondeat superior) for her co-worker’s intentional tort and negligent in failing to protect her. The district court dismissed plaintiff’s claims on peremptory exception of no cause of action.

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Plaintiff’s petition failed to state a claim against the employer for vicarious liability. The court applied the four factors from Baumeister v. Plunkett, 95–2270 (La.5/21/96), 673 So. 2d 994, 996. Because plaintiff did not allege facts supporting a finding that the intentional act was primarily rooted or reasonably incidental to the performance of the coworker’s duties notwithstanding that the alleged act occurred at the workplace during working hours. “An employer is not vicariously liable, however, merely because his employee commits an intentional tort on the business premises during working hours.” Carr, 189 So. 3d at 454.

Winzer v. Richards, 50,330 (La. App. 2 Cir. 1/13/16); 185 So. 3d 876—Former

employee's allegedly tortious actions in rear-ending vehicle, thereby injuring vehicle's passenger, after leaving his employer's work site after the termination of his employment was not a risk of harm fairly attributable to the employer's business. Thus, employer was not vicariously liable for passenger's injuries. At the time of the accident, former employee was driving home to Florida in his own vehicle, employee's former job duties did not require the use of a vehicle, he was more than 600 miles away from employer's job site, he was not on a mission for employer's benefit or performing any job duty for employer, and at the moment employee rear-ended the vehicle in which passenger was riding, employer was exercising absolutely no control over him, and it had no right to control him at that moment.

Thompson v. Winn-Dixie Montgomery, Inc., 2015-0477 (La. 10/14/15); 181 So. 3d 656, reh'g denied (Dec. 7, 2015)—Comparative fault statutes applied to customer's negligence claims arising out of slip-and-fall on wet floor in grocery store, and thus store could not be held liable for fault of subcontractor that provided floor cleaning services, even though store had statutory duty to exercise reasonable care to keep floors in reasonably safe condition. Statute governing store's duty did not preclude application of comparative fault laws to third parties that might have contributed to injuries. Comparative fault statutes did not make an exception for liability based on merchant fault. Additionally, contract with subcontractor did not eliminate store's statutory duty to its patrons. The existence of store's statutory duty did not abrogate duty of care owed by subcontractor in performing floor cleaning work. XII. PUNITIVE DAMAGES

Warren v. Shelter Mutual Ins. Co., 2015-0354 (La. Ct. App. 3 Cir. 6/29/16); ____ So. 3d____, 2016 WL 3609024—Defective boat steering system caused the occupant to be ejected and suffer fatal injuries. The case against the manufacturer was based in part on failure to warn of the severe consequences of loss of minimal hydraulic fluid. Although the owner added fluid and performed routine maintenance on the system prior to the accident, due to the lack of warnings, there was no evidence that they, or any prudent boat owner, would have consequently been alerted to the risk of a total system failure upon a loss of hydraulic fluid. Jury awarded punitive damages in the amount of $23,000,000. Punitive damages are rarely imposed but have long been recognized as an available remedy in general maritime actions where defendant’s intentional or wanton and reckless conduct amounts to a conscious disregard for the safety and rights of others. The jury was likely

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influenced by the magnitude of the risk in this case – that losing only a few percent of the system’s overall fluid content could result in ejection from the boat and death. The Court of Appeal affirmed the punitive damage award of $23,000,000 in favor of the deceased’s father, even though the compensatory damage award was only $125,000. XIII. GOVERNMENT IMMUNITY AND LIABILITY

Foret v. Caruso, et al., 15-CA-0682 (La. App. 5 Cir. 3/16/16); 194 So. 3d 643—

Plaintiff sued the State Fire Marshal and its inspector claiming that the inspector failed to inspect a building that later caught fire and caused the deaths of two people, and that the inspector subsequently falsified records related to his inspection of the building. Plaintiffs allege that the acts of omissions by the inspector, in fraudulently and criminally preparing reports for which he never did an investigation constituted criminal, fraudulent, malicious, intentional, willful, outrageous, or flagrant misconduct. The court held that the inspection of the buildings was discretionary act, and thus the Office and inspector were entitled to immunity. It also held that the inspector's preparation of the fraudulent report did not trigger an exception to that immunity.

Byargeon v. Concordia Chamber of Commerce, Inc., 2015-900 (La. App. 3 Cir.

3/16/16); ____ So. 3d ____, 2016 WL 1039414—Members of unincorporated association that assisted in organizing charity run were not immune from liability for actions or omissions they individually performed which allegedly caused harm, in husband's negligence action arising out of wife's death in vehicle collision allegedly caused by inadequate warnings of traffic lane closures. Statute governing immunity of members of unincorporated associations did not provide every member immunity from any potential liability simply by virtue of their membership.

White v. State ex rel. Dep't of Transp. & Dev., 2015-0853 (La. App. 4 Cir.

1/20/16); 186 So. 3d 261, writ not considered, 2016-0329 (La. 4/8/16); 191 So. 3d 580—Summary judgment in favor of DOTD affirmed where plaintiff was involved in a 41 car accident on I-10. The plaintiff failed to introduce material facts proving that DOTD was negligent for failing to provide proper lighting on the bridge or that the DOTD had actual or constructive knowledge that there would be fog on the bridge. The DOTD cannot be held responsible for all injuries on the state’s highways that result from careless driving in the face of adverse weather conditions. Visual impairment caused by fog or heavy rain is a physical condition with which drivers must learn to contend in a safe and responsible manner.

Robertson v. St. John the Baptist Par., 15-240 (La. App. 5 Cir. 10/14/15); 177 So. 3d 785—Parish residents who experienced flood damages following hurricane brought class action, alleging claims for negligence against Parish, and against contractors performing pipeline construction work for allegedly exacerbating the flood damages. The Fifth Circuit held that Parish was absolutely immune from residents' suit pursuant to the immunity provision of the Louisiana Homeland Security and Emergency Assistance and Disaster Act.

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Doucet v. Alleman, 2015-254 (La. App. 3 Cir. 10/7/15), 175 So. 3d 1107—In the above case, (Doucet v. Alleman, 2015-246 (La. App. 3 Cir. 10/7/15); 175 So. 3d 1094) the Third Circuit held that motorist's Louisiana Department of Public Safety and Corrections probation officer was exempt from liability due to qualified immunity. Although officer should have inquired into drug testing results that testing company failed to send to her, the acts of probation officer pertaining to revocation of probation were discretionary. There is no statutorily mandated course of conduct officers were mandated to follow, and it was trial court's function to determine if it would have revoked probation. LSA–R.S. 9:2798.1; LSA–C.Cr.P. art. 899(F).

Fecke v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 2015-0017 (La. App. 1 Cir. 7/7/15); 180 So. 3d 326, reh’g denied (Sep 03, 2015)—Student and her parents brought action against board of state university for injuries she sustained when she fell from a bouldering wall located at the university recreation center indoor rock climbing wall facility. The district court entered judgment on jury verdict in favor of student and her parents, which allocated 75 percent of fault to board and 25 percent of fault to student, adjusted damages based on jury's fault allocation. On appeal, the First Circuit held that the board was a state agency. Thus, it was an error to apply the statute governing personal injury claims against political subdivisions as opposed to claims against state agencies. The First Circuit therefore rendered judgment on jury verdict in favor of student and her parents and ordered that student's damages award for her future medical care to have been placed in a reversionary trust, rather than Future Medical Care Fund (FMCF). Additionally, the court held the student was not entitled to costs and attorney fees to be deducted from her damages award for future medical care. Only monies to be paid to a provider from fund for future medical care were those things defined in statute pertaining to Future Medical Care Fund (FMCF). The statute did not provide for costs or attorney fees to be paid from FMCF, and costs and fees were not medical care and related benefits under statute. Koonce v. St. Paul Fire & Marine Ins. Co., 2015-31 (La. App. 3 Cir. 8/5/15); 172 So. 3d 1101, reh’g denied (Sep 23, 2015), writ denied 2015-1950 (La. 11/30/15); 184 So. 3d 36— Prisoner at parish correctional center brought action against sheriff to recover for injury in bus accident during evacuation from hurricane. The Third Circuit held that technical violations of state law and sheriff's policies by transporting prisoners away from hurricane in school buses driven by deputies without proper license were not “willful misconduct” within meaning of Homeland Security and Emergency Assistance and Disaster Act affording immunity to government agents, representatives, or employees engaged in emergency preparedness activities, except for willful misconduct. Thus, sheriff was immune from liability. Nothing about the conduct of the warden and deputy suggested any bad intent or reckless disregard for consequences of their actions. Additionally, the warden and deputy had to make immediate decisions to evacuate over 1,200 inmates. Gaffney v. Giles ex rel. Louisiana State Univ. Med. Ctr., 2014-0384 (La. App. 4 Cir. 4/29/15); 165 So. 3d 1100—The Fourth Circuit amended a trial court's ruling in favor of medical malpractice plaintiff against cardiologist for failing to return his phone calls to remove the cardiologist's name and to be entered against the State alone. The purpose of the Malpractice Liability for State Services Act is to ensure an adequate supply of

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healthcare professionals willing to provide medical care to patients on behalf of the state. This would be frustrated if healthcare providers were to be held personally liable for medical malpractice.

XIV. MEDICAL MALPRACTICE

A. Role of Medical Review Panel

Matranga v. Parish Anesthesia of Jefferson, LLC, 14-448 (La. App. 5 Cir. 5/14/15); 170 So. 3d 1077, writ denied, 2015-1143 (La. 9/18/15); 178 So. 3d 148—Plaintiff was admitted at East Jefferson General Hospital (EJGH) for an elective heart surgery to treat arterial stenosis. Prior to her surgery, Defendants, Dr. Cougle, a certified registered nurse anesthetist (CRNA), and an anesthesiology student resident, planned to administer anesthesia. The anesthesia required Plaintiff to be intubated. Defendants intubated Plaintiff using Eschmann stylet. After an endotracheal tube was inserted over the stylet, blood began leaking from Plaintiff’s mouth. Plaintiff suffered cardiac arrest and her brain was deprived of oxygen for a number of minutes. An anesthesiologist was able to successful ventilate plaintiff, however, she suffered fatal anoxic brain damage due to the deprivation of oxygen. The surgery was never performed. Plaintiff was moved to an intensive care unit, where she subsequently died after removing life support.

Plaintiff’s children brought a wrongful death action alleging medical malpractice. The Fifth Circuit concluded that the Medical Review Panel contained an impermissible finding regarding a disputed material fact, that Plaintiff was successfully re-intubated in four minutes after she suffered cardiac arrest. Thus, the impermissible finding should not have been admitted in the wrongful death action. The fact the impermissible finding was admitted in the action warranted a reversal of a jury verdict in Defendant’s favor. Additionally, the Fifth Circuit found it was in error in admitting the Medical Review Panel’s conclusion with regard to Plaintiff’s informed consent. The Fifth Circuit also found error in failing to inform the jury on patient’s loss chance of survival.

B. Duty/Standard of Care Pitts v. Louisiana Medical Mutual Ins. Co. and Jones, M.D., 15-CA-0848 (La.

App. 1 Cir. 6/3/16); 2016 WL 3127414—The district court entered judgment in favor of plaintiffs. The Court of Appeal reversed, finding that the evidence in the record supported the jury’s verdict that the plaintiffs had failed to prove that the doctor breached the emergency medicine standard

Davis v. Barre, DDS, 15-CA-706 (La. App. 5 Cir. 5/12/16); 192 S0.3d 280—

Patient brought malpractice claim against dentist and dental clinic, alleging that she suffered damages when dentist tried to extract broken tooth. The district court entered judgment on jury verdict for dentist and clinic, and patient appealed. The Court of Appeal affirmed and held that evidence supported jury’s finding that dentist did not fail to use reasonable care and diligence when trying to extract patient’s broken tooth. When the experts’ opinions are in conflict concerning compliance with the applicable standard of care, the trail court’s determinations on this issue are granted great deference.

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Benson v. Rapides Healthcare System, L.L.C., et al., 15-1083 (La. App. 3 Cir.

4/6/16); 188 So. 3d 1139—Patient brought medical malpractice action against hospital arising out of treatment of patient’s myocardial infarction. The district court entered judgment in favor of patient and awarded damages. Patient and hospital appealed. The Court of Appeal affirmed in part and held that it was reasonable for the jury to accept that the testimony of three cardiologists established the standard of care applicable to the emergency room physician because the diagnosis and emergency treatment of acute heart attacks is an area of practice in which the disciplines of cardiology and emergency room medicine overlap such that the emergency room physician would have known and understood the importance of following the cardiologist’s treatment instructions and the potential damage to the patient if he did not follow those instructions.

Montz v. Williams, 2016-145 (La. 4/8/16); 188 So. 3d 1050, 2016 WL 1440795—Patient brought medical malpractice action against doctor, who performed a total abdominal hysterectomy and bilateral salpingo-oophorectomy on patient, during which her bladder was injured. The district court entered judgment on jury verdict finding that patient did not prove applicable standard of care. On appeal, the Fifth Circuit reversed and held that sufficient evidence, particularly through the expert testimony of both sides and the medical panel opinion, was presented to the jury to establish that the standard of care owed by doctor to patient was informed consent. Thus, jury's finding that patient did not prove the applicable standard of care of informed consent by a preponderance of the evidence was clearly wrong. The Supreme Court reversed the decision of the Fifth Circuit and reinstated the judgment of the district court, finding that the jury’s decision to accept testimony of surgeon's experts on informed consent could not have been manifestly erroneous despite their agreement with patient's experts on need for informed consent for total abdominal hysterectomy and bilateral salpingo-oophorectomy resulting in bladder injury. The issue of what requirements constituted the standard of informed consent under the circumstances was reasonably contested.

Mathews v. Louisiana State Univ. Health Sys., 2015-1019 (La. App. 3 Cir. 3/2/16),

186 So. 3d 809—Patient's widower filed suit against university hospital for medical malpractice. The district court entered summary judgment for widower on issues of liability and causation, but reserved determination of damages for trial. Hospital appealed. The Third Circuit held that widower demonstrated that care provided by university hospital and patient's treating physicians in failing to diagnose lung cancer fell below standard of care, and that such failure caused patient to suffer paraplegia, pain, and reduced chance of successful treatment. Therefore, the Third Circuit found the district court properly granted summary judgment.

Wedgeworth v. Mixon, 15-686 (La. App. 3 Cir. 02/03/16); 184 So. 3d 876—Patient

brought a medical malpractice action against otolaryngologist, alleging that he breached the standard of care by failing to properly perform a revision functional endoscopic sinus surgery and by failing to properly monitor and treat her post-surgery. At trial, the jury found in favor of otolaryngologist. Patient appealed. The Third Circuit affirmed the jury verdict in favor of defendants. Sufficient evidence existed that otolaryngologist did not

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breach the standard of care by failing to properly perform a revision functional endoscopic sinus surgery and by failing to properly monitor and treat patient post-surgery, even though patient's expert testified that otolaryngologist should not have biopsied the brain during surgery and criticized his post-surgical care. Defense experts, who had performed approximately 3,200 sinus surgeries, testified that brain biopsy and infection were risks of surgery and that otolaryngologist exceeded the standard of care by recommending that patient be admitted to hospital and undergo a CT scan after surgery. Additionally, the treating neurosurgeon testified that his examination of patient following surgery was normal without any signs of infection.

Glasscock v. Bd. of Sup'rs of Louisiana State Univ., 49,855 (La. App. 2 Cir. 8/19/15); 174 So. 3d 757 writ denied, 2015-1628 (La. 10/30/15); 179 So. 3d 618—Widow of patient who died following motorcycle accident brought medical malpractice action against hospital. The trial court entered judgment on jury verdict for hospital. The Second Circuit affirmed, finding that the trial court acted within its discretion in declining to instruct jury to draw adverse inference from hospital's failure to call as witnesses the telemetry technician on duty when patient coded and the resident who filled out code note at patient's death. Technician and resident had left hospital's employment by time of trial and were thus not under hospital's control, and either party could have deposed the former employees. The Second Circuit also held that evidence supported jury's findings that telemetry leads were properly connected to patient until time technician indicated a problem with leads, that staff did not fail to recognize disturbances in patient's heart rhythms, and that staff timely responded to abnormal rhythms. Moreover, evidence supported the jury's finding that patient did not sustain a brain injury during his hospitalization that was a precipitating cause of his fatal cardiac arrest. Family members who were with patient saw nothing that would have caused the injury, and there was no expert testimony that a second injury or trauma occurred while patient was hospitalized following motorcycle accident.

C. Medical Experts

Montz v. Williams, 2016-145 (La. 4/8/16); 188 So. 3d 1050, 2016 WL 1440795—Patient brought medical malpractice action against surgeon, who performed a total abdominal hysterectomy and bilateral salpingo-oophorectomy injuring patient's bladder. The district court entered judgment on jury verdict finding that patient did not prove applicable standard of care. Patient appealed. The appellate court in part, reversed in part, and remanded. Petition was filed for writ of certiorari. The Supreme Court held that jury's decision to accept testimony of surgeon's experts on informed consent could not have been manifestly erroneous and reinstated the district court’s judgment. Jury's decision to accept testimony of surgeon's experts on informed consent could not have been manifestly erroneous despite their agreement with patient's experts on need for informed consent for total abdominal hysterectomy and bilateral salpingo-oophorectomy resulting in bladder injury. The issue of what requirements constituted the standard of informed consent under the circumstances was reasonably contested.

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Penn v. CarePoint Partners of Louisiana, L.L.C., 2014-1621 (La. App. 1 Cir. 7/30/15); 181 So. 3d 26—In a medical malpractice action brought by patient against hospital, the court of appeal held that the district court did not abuse its discretion in ruling that board-certified cardiologist's affidavit was inadmissible in summary judgment proceeding in patient's medical malpractice claim against hospital, where hospital's physician was a hospitalist, but cardiologist's report failed to offer an opinion as to the standard of care to be exercised by a hospitalist, or a general hospital.

D. Patient Compensation Fund

Toston v. St. Francis Med. Ctr., Inc., 49,963 (La. App. 2 Cir. 10/14/15); 178 So. 3d 1084—Patient's children brought wrongful death and medical malpractice action against two hospitals following patient's death from complications from an underlying kidney infection. The district court entered summary judgment in favor of hospitals. Children appealed. The Second Circuit, 108 So. 3d 197, affirmed in part and reversed in part. Following bench trial after remand, the district court entered judgment in favor of children, and assessed hospital with $100,000 in damages, and the Louisiana Patients' Compensation Fund (PCH) with $400,000 in damages. The PCH intervened and appealed along with hospital. The hospital then settled with the plaintiff, leaving the PCF as the only remaining defendant on appeal. The Second Circuit held the determination of liability in the trial between the malpractice victim and the healthcare provider precluded the PCF from challenging the liability of the healthcare provider.

E. Prescription/Peremption

McCann, et al. v. Christus St. Frances Cabrini Hospital, et al., 16-21 (La. App. 3 Cir. 5/11/16); 192 So. 3d 868—Parents of prematurely-born infant brought medical malpractice action against physician's estate arising out of infant's death. Estate filed peremptory exception of prescription. The district court granted exception. Parents appealed. The Court of Appeal reversed and remanded and held that statements in parents' opposition to exceptions filed by physician's estate did not constitute judicial confessions of any structural defects in parents' petition, and filing of parents' original petition was sufficient to interrupt prescription on claims against physician's succession representative.

In re Tillman, 2015-1114 (La. 3/15/16); 187 So.3d 445, 2016 WL 1051618—

Multiple plaintiffs brought separate medical malpractice claims against various defendants. The Division of Administration stamped the fax-filed requests for review of plaintiffs’ medical malpractice claims as filed on the business day following facsimile transmission of the requests. La. Rev. Stat. 40:1231.8(A)(2)(b) directs that a request for a review of a malpractice claim “shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration.” The Uniform Electronic Transmission Act (“UETA”), La. R.S. 9:2601 et seq., “applies to electronic records and electronic signatures relating to a transaction.” The electronic transmission, via facsimile machine, of a request for review of a medical malpractice claim is subject to the provisions of the UETA. Under the UETA, the electronic transmission of a record occurs when the electronic record “[e]nters an information processing system” that the recipient has “designated or uses for the purpose of receiving electronic records or information of the type sent and from which

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the recipient is able to retrieve the electronic record . . . even if no individual is aware of its receipt.” The Supreme Court held that facsimile-transmitted requests for review of medical malpractice claims were received by DOA when transmitted into DOA's facsimile transmission system and reinstated the trial court’s denial of defendants’ exception of prescription.

Correro v. Ferrer, 50,476 (La. App. 2 Cir. 3/2/16); 188 So.3d 316, 2016 WL

852422—Patient brought medical malpractice action against surgeon and hospital following hip surgery. The district court granted defendants exceptions of prescription. Patient appealed. The Second Circuit affirmed and held that under La. R.S 40:1231.8(A)(2)(a), the filing of a request for review of a claim shall suspend the time within which suit must be instituted until 90 days following notification of the issuance of the opinion by the medical review panel. Therefore, prescription against named defendants in the original medical malpractice complaint did not remain suspended past the 90 days after the medical review panel rendered a decision in that complaint while another panel against possible solidary obligors was still pending.

Watson v. Glenwood Reg'l Med. Ctr., 49,661 (La. App. 2 Cir. 4/15/15); 163 So. 3d 817, writ denied, 2015-0945 (La. 8/28/15); 176 So. 3d 404—Plaintiff had a nodule in her right breast and visited the Woman’s Clinic of Monroe on May 22, 2009 to have it examined. The Clinic advised Plaintiff that the nodule was benign, and advised her to return if anything changed. Plaintiff returned for a yearly screening on April 27, 2010. A radiologist ordered an ultrasound at the screening. After a needle biopsy, Plaintiff was finally told she had cancer on May 13, 2010. Plaintiff underwent a double mastectomy on June 14, 2010 after she was told on June 1, 2010 that there was a high risk of cancer in her left breast as well as her right breast. Plaintiff filed a request for a Medical Review Panel on June 14, 2011. Plaintiff alleged that the delay in her breast cancer diagnosis allowed the cancer to spread and reduced her chances of survival, as well as caused her undergo treatment that otherwise would have been unnecessary. The District Court dismissed her claim based on prescription. The Second Circuit affirmed, finding that lost chance of survival was not a distinct cause of action that may have accrued later than act of malpractice and that Plaintiff had constructive notice of alleged delay in diagnosing cancer prior to date of double mastectomy, which thus triggered the one-year prescriptive period.

F. Application of the Medical Malpractice Act

Daniel v. Minnard, 16-C-260 (La. App. 1 Cir. 6/3/16); 2016 WL 3288401—Patient’s surviving family members brought medical malpractice action against hospital and two physicians following patient’s death during a surgical procedure. The district court subsequently denied hospital’s motion for summary judgment. Hospital sought supervisory writ. The Court of Appeal affirmed and held that claims against hospital for administrative negligence were claims of medical malpractice, and presentation of administrative negligence claims to medical review board was sufficient to preserve these claims for litigation. The MMA requires only “a brief description of the alleged malpractice as to each named defendant health care provider” and does not mandate the type of fact pleading required in a court petition.

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Billeaudeau v. Opelousas General Hospital Authority, 15-1034 (La. App. 3 Cir. 4/6/16); 189 So. 3d 561—Alleged “negligent credentialing” of a physician by a hospital does not constitute medical malpractice subject to the Medical Malpractice Act (MMA). Patient's mother, individually and as curatrix of patient, and patient's father brought negligence action against hospital, asserting that hospital negligently credentialed emergency room (ER) physician, who failed to provide a treatment for stroke victims to patient, who was subsequently diagnosed as having suffered stroke. The district court granted motion for partial summary judgment to patient’s mother and father. Hospital appealed. The Court of Appeal hled that the law-of-the-case doctrine applied, and that negligent-credentialing claim was not claim of malpractice under MMA.

G. Informed Consent/Alternative Therapies

Magee v. Williams, DDS, MDS, 50,726-CA (La. Ct. App. 2 Cir. 6/22/16); 2016 WL 3416930—Dental patient brought dental malpractice claim against dentist. The district court granted summary judgment in favor of dentist, and patient appealed. The Court of Appeal affirmed and held that dentist was not required to obtain written consent from patient before conducting two dental implant follow-up procedures, and dentist’s failure to obtain written consent did not cause patient to consent to follow-up procedures. In informed consent cases, causation is established only if adequate disclosure reasonably would be expected to have led a reasonable person to decline treatment because of the disclosure. Specifically, dentists must advise patients in general terms of the nature and purpose of the opportunity to ask questions, and answer them satisfactorily. The consent does not have to be in writing.

Fountain v. Oschner Clinic Foundation Westbank Campus and Washington Bryan, M.D., 15-CA-1048 (La. App. 4 Cir. 5/11/16); 194 So.3d 728—Patient brought action against doctor, alleging that he breached standard of care when he failed to obtain her informed consent for laparotomy for bilateral tubal ligation and ventral hernia repair that left with large, disfiguring abdominal scar. The district court entered judgment on jury verdict in favor of patient, $150,000 in damages. Doctor appealed. The Court of Appeal affirmed. The doctor is not entitled to a presumption that patient’s informed consent was properly obtained where the forms she executed identified the material risks promulgated by the Louisiana Medical Disclosure Panel for a laparotomy.

Perkins v. Guidry, 15-1177 (La. App. 3 Cir. 5/4/16); 191 So.3d 1182—Medical malpractice action was brought against obstetrician following the death of patient and her unborn child. The district court entered judgment for obstetrician. Plaintiff appealed. The Court of Appeal affirmed and held that trial court was not to grant directed verdict for plaintiff on the undisputed issue of the applicable standard of care, trial court did not commit prejudicial error in its instructions to jury regarding standard of care, obstetrician did not bear burden of obtaining patient’s informed consent with respect to aspects of patient’s care for which a hermatological specialist had been consulted, and evidence supported jury finding that obstetrician did not breach the applicable standard of care.

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XV. LEGAL MALPRACTICE Watson v. Franklin, 50,730-CA (La. Ct. App. 2 Cir. 6/22/16); 2016 WL

3417450—An attorney can terminate representation of a client by properly mailing a disengagement letter even if the letter is allegedly not received. In this case, a former client brought action against attorney for legal malpractice. The district court dismissed the action. The client appealed. The Court of Appeal affirmed and held that evidence that attorney termination attorney-client relationship, including a disengagement letter containing date that her claim would prescribe, was admissible in determining whether client had a right of action, and finding that attorney terminated representation of client by letter was not manifestly erroneous, and thus attorney-client relationship did not exist at time that client’s claim prescribed and client had no right of action.

Brennan’s Inc. v. Colbert, et. al., 15-CA-0325 (La. App. 4 Cir. 4/13/16); 191 So.3d

1101—Brennan’s could not establish the standard of care for attorneys in New Orleans without expert testimony and failed to present expert testimony. The Court of Appeal affirmed summary judgment in favor of attorney.

Gattuso v. Nicaud, 15-670 (La. App. 5 Cir. 2/24/16); 186 So. 3d 1238—Former

client brought legal malpractice action against attorney and law firm. The district court granted defendants' exceptions of prescription and peremption. Former client appealed. The Fifth Circuit affirmed held that the three-year peremptive period for former client to file legal malpractice action began to run on the date the attorney allowed the matter in which he represented former client to be dismissed as abandoned. There was no support for the allegation that the attorney attempted to hide the abandonment.

Lewis v. Young, 2015-0798 (La. App. 4 Cir. 2/24/16); 187 So. 3d 531, 2016 WL

756698—Plaintiff asserted that defendant/attorney committed legal malpractice by failing to file a timely claim under the Longshore and Harbor Workers' Compensation Act (LHWCA). The trial court granted summary judgment in favor of defendant/attorney. The Fourth Circuit affirmed. Plaintiff was not able to recover damages in his legal malpractice suit for the negligent infliction of emotional distress on account of the alleged malpractice because a plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim. Under the LHWCA, a claim for negligent infliction of emotional distress, unrelated to employment, is not cognizable.

Hardison v. Byrne, 2015-0111 (La. App. 4 Cir. 12/9/15); 182 So. 3d 1110—Former

client, who reached settlement in prior maritime personal injury case, brought legal malpractice action against law firm that had represented client. The Fourth Circuit held that failed to prove suffered loss as result of firm's alleged negligence through deprivation of chance to collect damages at jury trial for mental anguish, medical bills, or lost wages and through inadequate settlement amount. Client presented no evidence as to mental anguish, medical bills, or lost wages following his maritime injury, and instead claimed only that his employer delayed client's ability to obtain medical help. Additionally, client failed to offer evidence showing that the settlement was unfavorable outcome of the maritime litigation.

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Lomont v. Bennett, 2014-2483 (La. 6/30/15); 172 So. 3d 620—A former client

filed legal malpractice claim against her former attorney, alleging that the attorney had failed to record a community property settlement that gave client the family home, and as a result, a third-party creditor was able to file a lien against the home. The Louisiana Supreme Court held that an attorney’s post-malpractice actions consisting of fraudulent concealment can amount to “fraud,” thus barring application of the three-year peremptive period for a claim for legal malpractice. This overruled Carriere v. Bodenheimer, Jones, Szwak & Winchell, L.L.P., 120 So. 3d 281, Broadscape.com, Inc. v. Matthews, 980 So. 2d 140, Brumfield v. McElwee, 976 So. 2d 234, Smith v. Slattery, 877 So. 2d 244, and Atkinson v. LeBlanc, 860 So.2 d 60.

Further, the Court ruled that in cases where post-malpractice fraud is established, a legal malpractice claim is governed by the one-year prescriptive period for delictual actions. This abrogated Zeno v. Alex, 89 So. 3d 1223, Orea v. Bryant, 979 So. 2d 687, Granger v. Middleton, 948 So. 2d 1272, Dauterive Contractors, Inc. v. Landry and Watkins, 811 So. 2d 1242, and Broussard v. Toce, 746 So. 2d 659.

Finally, the Court held that the one-year prescriptive period began to run on the day that the client became aware that the attorney had fraudulently concealed her malpractice.

XVI. SLIP AND FALL

A. No Evidence of Condition Scott v. Dillard’s, Inc., 14-755 (La. App. 5 Cir. 3/11/15); 169 So. 3d 468—In slip-and-fall cases, the plaintiff bears the initial burden of proving each element of her cause of action under La. R.S. 9:2800.6(B): “B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving … (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.” Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. The evidence required to prove the temporal element may be either direct or circumstantial. Thus, a claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute.

Williams-Ball v. Brookshire Grocery Co., 50,722-CA (La. Ct. App. 2 Cir. 6/29/16); ____ So. 3d ____; 2016 WL 3541455—Patron sought damages for injuries sustained when she slipped and fell on a clear egg like substance on floor of grocery store. The district court found in favor of store, and patron appealed. The Court of Appeal affirmed. The patron failed to prove that the store employee created the damage-causing condition and failed to prove constructive notice of damage-causing condition, which requires that a plaintiff make a positive showing of the existence of the damage-causing condition for some time period prior to the fall although the time period need not be specific in minutes or hours.

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Foster v. Pinnacle Entertainment, Inc. d/b/a Boomtown Belle Casino, 16-C-8

(La. App. 5 Cir. 4/27/16); 193 So. 3d 288—Casino filed writ application, seeking supervisory review of the determination of denied summary judgment in patron’s slip-and-fall action. The Court of appeal reversed and held that patron failed to demonstrate that cracked tile on floor of casino presented unreasonable risk of harm that was reasonably foreseeable to casino.

Guillaume v. Brookshire Grocery Co., 50,722-CA (La. Ct. App. 2 Cir. 6/29/16);

____ So. 3d ____; 2016 WL 3541546—Patron sought damages for alleged slip and fall due to a stream of dirty water on the floor of grocery store. The district court entered judgment for store, and patron appealed. The Court of Appeal affirmed. The plaintiff failed to show that the water existed for “some time” prior to her fall.

B. Unreasonable Risk of Harm

Foster v. Pinnacle Entm't, Inc., 16-C-8 (La. App. 5 Cir. 4/27/16); 2016 WL

1720301—Patron, who slipped and fell in buffet line at casino, failed to demonstrate that condition of cracked-tile on casino floor presented unreasonable risk of harm that was reasonably foreseeable to casino, and thus patron failed to support negligence claim against casino. Though patron demonstrated that there were cracks in tile, patron retained no expert to examine cracks in floor tile. Additionally, patron merely speculated that tile could have been loose, causing tile to shift and throwing her off balance, without any factual support.

Upton v. Rouse's Enter., LLC, 15-484 (La. App. 5 Cir. 2/24/16); 186 So. 3d 1195—Patron of grocery store brought action against store-owner for negligence, alleging that she injured her foot near a watermelon display, which consisted of a large cardboard box situated on top of a wooden pallet. The district court entered summary judgment in favor of owner. Patron appealed. The Fifth Circuit held that the display was open and obvious and thus did not create an unreasonable risk of harm, and that owner did not have constructive knowledge of any watermelon juice on floor. Waddles v. Brookshire Grocery Co., 50,150 (La. App. 2 Cir. 9/30/15); 181 So. 3d 772—Patron brought action against grocery store for negligence in connection with allegations that he fell on an uneven section of concrete while walking in crosswalk of parking lot. The Second Circuit found patron did not meet his burden of proving the condition was unreasonably dangerous where he did not produce any evidence at trial of a measurement of the deviation. Further, prior accidents are properly considered when analyzing whether the condition presented an unreasonable risk of harm and whether defendant had knowledge of the condition. While the defect was on a crosswalk, there is no extra standard of care for the merchant. The so-called “heightened scrutiny” of strict liability encompasses the same considerations as La. Rev. Stat. § 9:2800(B)(1) when determining whether the condition presented an unreasonable risk of harm. Tomaso v. Home Depot, U.S.A., Inc., 2014-1467 (La. App. 1 Cir. 6/5/15); 174 So. 3d 679—Plaintiff fell and suffered injuries while getting off of a lawn tractor on display at

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a Home Depot. Plaintiff filed suit alleging that his “foot was snagged by a ... hazard ... that had negligently not been removed from the subject lawnmower,” which caused him extensive injuries. The First Circuit affirmed the district court’s granting of summary judgment in favor of Home Depot. The First Circuit found that the zip tie on the lawn tractor, which allegedly caused Plaintiff’s fall, was placed on the lawn tractor by the manufacturer, not the store, to secure the deck access panel during transit. The zip tie's loop was on the bottom and the only thing that protruded was the stem that was left over. Additionally, Plaintiff did not indicate how or why the zip tie itself would place store on notice that it was unreasonably dangerous. Home Depot’s manager had never heard of, witnessed, or taken an incident report where a customer had tripped on a zip tie connected to a lawn tractor on display. Finally, there was no indication that store had knowledge of a danger or risk of harm prior to Plaintiff’s accident.

C. Actual or Constructive Notice of Condition

Williams-Ball v. Brookshire Grocery Co., 50,722-CA (La. Ct. App. 2 Cir. 6/29/16); ____ So. 3d ____; 2016 WL 3541455—Patron sought damages for injuries sustained when she slipped and fell on a clear egg like substance on floor of grocery store. The district court found in favor of store, and patron appealed. The Court of Appeal affirmed. The patron failed to prove that the store employee created the damage-causing condition and failed to prove constructive notice of damage-causing condition, which requires that a plaintiff make a positive showing of the existence of the damage-causing condition for some time period prior to the fall although the time period need not be specific in minutes or hours.

Guillaume v. Brookshire Grocery Co., 50,722-CA (La. Ct. App. 2 Cir. 6/29/16);

____ So. 3d ____; 2016 WL 3541546—Patron sought damages for alleged slip and fall due to a stream of dirty water on the floor of grocery store. The district court entered judgment for store, and patron appealed. The Court of Appeal affirmed. The plaintiff failed to show that the water existed for “some time” prior to her fall.

Flipping v. JWH Properties, LLC, 50,648-CA (La. App. 2 Cir. 6/8/16); ____ So.

3d ____, 2016 WL 3450606—Plaintiff slipped as she entered a building where the entrance was wet. Fault was attributed 50% to the business because it was on notice of the dangerous water problems and should have taken greater measures on the outside of the building and the metal threshold, and should have had a larger mat on the inside of the door. Fault was attributed 50% to the plaintiff because of her familiarity with the business entry and the Croc-style shoes she wore.

Brown v. City of Shreveport, 50,402 (La. App. 2 Cir. 3/16/16); ____ So. 3d ____,

2016 WL 1039272—Trial court's finding, in pedestrian's action against city for injuries she sustained when she tripped and fell, that defect in sidewalk created an unreasonable risk of harm, was supported by sufficient evidence. Circumstantial evidence indicated that the sidewalk deviation was at least two inches, and city's superintendent of streets testified that a deviation of a couple of inches would warrant a repair. Additionally, the city had

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constructive knowledge of the defect in the sidewalk, was reasonable. City would have had notice of the sidewalk deviation due to its own work in proximity of the defect.

Williams v. Brookshire Grocery Co., 2015-394 (La. App. 3 Cir. 12/30/15); 182 So. 3d 1266—In patron’s action for damages as result of injuries due to a slip and fall, patron failed establish slip and fall claim against store. Store did not have actual or constructive knowledge of water, and record did not show how long water was on floor or whether it would have been discovered if store had exercised reasonable care. Additionally, there was no indication that store employee caused the defective condition.

Evans v. Winn-Dixie Montgomery, LLC, 15-191 (La. App. 5 Cir. 10/28/15); 177 So. 3d 386, reh'g denied (Nov. 19, 2015)—In an action for damages resulting from a slip and fall, the Fifth Circuit held grocery store patron failed to prove actual or constructive notice of alleged unreasonably dangerous condition arising from puddle near store's meat section. The source of water was undetermined and several employees were in area in hour leading up to patron's fall. However, there was nothing to suggest that condition was present at that time or that they should have noticed water. Additionally, no one else had reported puddle, and while store's manager later discovered cart that had leaking pack of water, cart had passed by area in question just one-and-a-half minutes before patron's fall.

Pouncy v. Winn-Dixie Louisiana, Inc., 15-189 (La. App. 5 Cir. 10/28/15); 178 So. 3d 603—Patron filed suit against store for injuries allegedly sustained in slip-and-fall. The Fifth Circuit upheld the lower court’s granting of summary judgment for defendant, finding the store lacked actual or constructive notice of any unreasonably dangerous condition in store, and thus was not liable for injuries. Patron did not see any substance on ground, patron saw wet-floor sign in same spot every time she entered store, and although patron’s clothes were damp after the fall, patron had walked through mist without umbrella immediately before.

Crawford v. Brookshire Grocery Co., 50,151 (La. App. 2 Cir. 9/30/15); 180 So. 3d 478—Patron brought action against grocery store for negligence alleging that she slipped and fell on a wet substance on floor. Store moved for summary judgment and moved to strike changes in patron's deposition testimony and statements in her affidavit in opposition to summary judgment. The district court granted motions. Patron appealed. The Second Circuit found the grocery store did not have constructive notice of wet substance on floor prior to patron's slip and fall, as required to hold store liable on patron's negligence claim for injuries sustained in the fall. Although patron had observed that the liquid was “dark and brownish and dirty looking” and had been walked through, there was no evidence that substance, which could have been dark and brown to begin with, had been on the floor for some period of time prior to the accident.

Mills v. Cyntreniks Plaza, L.L.C., 2014-1115 (La. App. 1 Cir. 8/19/15); 182 So. 3d 80, writ denied, 2015-1714 (La. 11/6/15); 180 So. 3d 308—Patron, who slipped and fell on clear liquid and broken glass located on nightclub's dance floor, brought action against club. The First Circuit found that the nightclub qualified as a “merchant” within the meaning of merchant liability statute. The nightclub was a commercial establishment that invited members of the public into its premises for their mutual advantage or benefit, and

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purpose of the merchant liability statute was to define the burden of proof in cases involving a slip and fall in commercial establishments. However, the court ultimately held the nightclub did not have either actual or constructive notice of liquid and glass on dance floor, and absent such notice, it was not responsible for injuries that patron sustained. The nightclub's manager was not aware of the presence of the liquid and/or glass, the record did not indicate that any security guard was aware of the spill, and there was no indication as to length of time liquid and glass had been on dance floor.

D. Reasonableness of Safety Measures Ferlicca v. Brookshire Grocery Co., 50,000 (La. App. 2 Cir. 9/4/15); 175 So. 3d

469, reh'g denied (Oct. 5, 2015)—Customer brought action against grocery store for negligence after she slipped and fell near store's entrance on a rainy day. The Second Circuit held that held that the grocery store's safety measures were organized, prudent, and reasonable, and thus the store was not at fault. The liability of a grocery store under La. R.S. 9:2800.6 does not require the merchant to keep the entrance/exit areas completely dry during rainy weather, nor is the merchant responsible for every slick place due to tracked in water, because this would make him an insurer of his customer’s safety. The merchant’s duty in dealing with the water that is tracked in and possibly dripped throughout the premises on a rainy day is to exercise reasonable care to promptly alleviate the wet areas and to alert customers to the constant threat of water that might drip to the floor as the result of other customer’s activities. The appropriate measure is whether the trial court could reasonably conclude “that the defendant’s rainy day safety measures were organized, prudent, and reasonable.” The safety measures the defendant used, which included the placing of rubber-backed mats, the placing of a visible warning sign, and periodically inspecting and mopping the areas, were organized, prudent and reasonable.

E. Persons to Whom Duty is Owed Am. Rebel Arms, L.L.C. v. New Orleans Hamburger & Seafood Co., 15-599 (La.

App. 5 Cir. 2/24/16); 186 So. 3d 1220—Limited liability company (LLC) brought action against restaurant, seeking damages for economic losses that resulted from LLC member's personal injuries, which member allegedly suffered following a slip and fall in restaurant bathroom. The Fifth Circuit held that the legislature did not intend to include limited liability companies within the scope of a merchant’s duty owed to “persons” using the merchant’s premises under La. R.S. 9:2800.6.

XVII. DEFAMATION

Ahearn v. City of Alexandria, 15-1014 c/w 15-1189 (La. App. 3 Cir. 5/4/16); 191 So. 3d 689—Carpenter sued city and various individuals for damages following his arrest for an alleged theft from a job site. Defendant business owner filed a reconventional demand stemming from allegedly defamatory comments contained in carpenter’s pleadings. Carpenter moved to strike defamation claim. A special motion to strike under La. C.C.P. art. 971(A)(1) requires a two-part burden of proof. The moving party must first prove that the subject cause of action arises from an act in the exercise of his right of free

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speech regarding a public issue. If the moving party satisfies this initial burden of proof, then the burden shifts to the plaintiff to show a probability of success on his claim. The district court denied the motion to strike, and the Court of Appeal reversed and held that carpenter met the burden of proving that defamation claim arose from an act in the exercise of his right of petition or free speech in connection with a public issue. Danna v. The Ritz-Carlton Hotel Co., LLC, et al., 15-CA-0651 (La. App. 4 Cir. 5/11/16); ____ So. 3d ____; 2016 WL 2736162—Former director of engineering brought action against employer for breach of contract, wrongful termination, and defamation. Employer filed reconventional demand seeking attorney fees and costs. The district court granted summary judgment for employer. Director appealed. The Court of Appeal held that the director could not recover on his defamation cause of action.

Bohn v. Miller, 15-1089 (La. App. 3 Cir. 4/6/16); 189 So. 3d 592—Plaintiff alleged that the defendant maliciously filed a report with the Lafayette Police Department accusing the plaintiff of unauthorized use of an access card. The defendant moved to strike pursuant to La. C.C.P. art. 971, which provides relief from a cause of action arising from a person’s exercise of his or her constitutional rights of petition or free speech in connection with a public issue. The trial court granted the motion to strike and dismissed the plaintiff’s claims with prejudice. The Appellate Court affirmed and held that good-faith reporting of criminal activity to the police is protected speech. The plaintiff did not prove malice, which is required for both defamation and malicious prosecution.

XVIII. PRODUCT LIABILITY

Warren v. Shelter Mutual Ins. Co., 15-354 c/w/ 15-838 and 15-1113 (La. Ct. App. 3 Cir. 6/29/16); ____ So. 3d ____; 2016 WL 3595628 Defective steering system caused occupant of boat to be ejected and to suffer fatal injuries. Punitive damages of $23,000,000 under general maritime law against manufacturer of steering system affirmed.

Sudderth v. Mariner Electric Co., Inc., 16-CA-5 (La. App. 5 Cir. 5/26/16); 193

So. 3d 552; A product is unreasonably dangerous when it does not conform to an express warranty made by the manufacturer about the product if the express warranty has induced the claimant to use the product and the claimant’s damage was proximately caused because the express warranty was untrue. A claimant must demonstrate not only the manufacturer’s specifications or performance standards for the particular product, but also how the product materially deviated from those standards so as to render it “unreasonably dangerous.” The jury was presented with conflicting testimony, including the differing opinions of the experts, and had to make credibility determinations. Jury verdict in favor of defendant affirmed.

Maricle v. Axis Medical & Fitness Equipment, LLC, et al., 15-1063 (La. App. 3

Cir. 5/4/16), 191 So. 3d 697—Wheelchair user brought action against medical equipment company, alleging negligent failure to inspect after back of wheelchair ripped, causing user to fall backwards and hit his head. The district court denied summary judgment for user and granted summary judgment for company. User appealed. The Court of Appeal reversed

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and held that statute providing that owner of thing was answerable for damages occasioned by its ruin, vice, or defect did not apply, user provided sufficient proof that company leased defective wheelchair and that user was injured due to defect, and law of the case doctrine did not apply to issue of company’s liability pursuant to statutes governing lessor’s warranty. In evaluating a claim against a lessor of an allegedly defective wheelchair, La C. C. arts. 2696-7 apply. Under 2696, a lessor is liable for defects that are not known to the lessor. Under 2696-7, it is not necessary to prove the cause of the defect, only that the defect existed.

XIX. IMMUNITIESWORKERS’ COMPENSATION

Gaines v. Pinecrest Supports & Services Center, 16-105 (La. Ct. App. 3 Cir. 7/6/16) (not chosen for publication)—Witnesses testified that claimant fabricated two workplace accidents because she was angry over not being promoted and became more upset after being given two reprimand letters. The court found that the WCJ was presented with conflicting testimony regarding whether claimant committed fraud or actually suffered a work-related injury. The court affirmed the judgment of the WCJ denying the La. Rev. Stat. 23:1208 fraud defense.

City of Bastrop v. Harris, 50,727-WCA (La. Ct. App. 2 Cir. 6/22/16); ____ So. 3d

____; 2016 WL 3417054—City filed petition seeking recovery of an overpayment of workers’ compensation benefits paid to injured fireman, as determined in prior litigation. The Office of Workers’ Compensation granted fireman’s peremptory exception of res judicata and dismissed city’s suit. City appealed. The Court of Appeal affirmed and held that res judicata precluded city’s claim to recover overpaid benefits because the employer should have brought the claim for reimbursement in the first suit.

Jackson v. Royal T Energy, LLC, 50,645 (La. Ct. App. 2 Cir. 6/22/16); ____ So.

3d ____; 2016 WL 3414818—Claimant injured while working as a truck driver in Texas filed for workers’ compensation. The Office of Workers’ Compensation denied employer’s declinatory exceptions of lack of subject matter jurisdiction. Employer was granted writ application. The Court of Appeal granted writ, reversed, and held that extraterritorial workers’ compensation coverage did not apply.

Schouest v. Acadian Construction Services, 15-921 (La. App. 3 Cir. 6/8/16); 193

So. 3d 595—Although the employer proved the claimant was intoxicated at the time of the accident, the claimant was not obligated to reimburse the employer for payment of medical expenses on his behalf following his discharge from the hospital. His injury required immediate surgery and he was not fully stabilized until the surgery was performed.

O’Bannon v. Moriah Technologies, Inc. and Texas Mutual Ins. Co., 15-CA-1460

(La. App. 1 Cir. 6/3/16); ____ So. 3d ____; 2016 WL 3127354—Claimant’s claim was governed by La. R.S. 23:1021(1) because his injury was a direct result of the physical impact of sitting on a pipe for ten hours, which performing work arising out of and in the course of his employment. Regarding subject matter jurisdiction, if the issue to be considered arises out of the LWCA, jurisdiction is vested in the OWC; if the issue merely

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relates to a workers’ compensation claim, the OWC does not have subject matter jurisdiction. A cross-claim between employers for indemnification or contribution arises out of the LWCA and thus the OWC has subject matter jurisdiction over these claims, regardless of the fact that the insurance policy required the application of Texas law to determine coverage.

Brookshire Grocery Co. v. Musculoskeletal Institute of La., A.P.M.C., 50,208-

CW (La. App. 2 Cir. 5/18/16); ____ So. 3d ____; 2016 WL 2899030—The district court denied health care provider’s exception of lack of jurisdiction. It was the alleged behavior of the health care provider, not an injury to the employee, which gave rise to Brookshire’s claim in the district court. This claim did not request relief under the LWCA so it was not a “claim or dispute arising out of” the Act and the district court had jurisdiction over the claim.

Hill v. Iasis Glenwood Regional Medical and Corvel Corp., 50,531-WCA (La.

App. 2 Cir. 5/18/16); ____ So. 3d ____; 2016 WL 2899251—Claimant’s disabling condition could be caused by moving a patient and thus covered under the LWCA. The claim was not prescribed because the courts will not penalize an employee for attempting to remain in the workforce to support her family or in the hope that the condition will improve.

Dow v. Chalmette Restaurant, Ltd., et al., 15-CA-0336 (La. App. 4 Cir. 5/18/16);

193 So.3d 1222—Claimant had no claim for penalties and attorney’s fees arising from defendant’s refusal to approve the shoulder surgery as non-compensable. Under La .Rev. Stat. 23:1142(E), if an insurer/employer denies that an employee’s injury is compensable under the workers’ compensation statute, then no approval from the insurer/employer is required prior to the provision of any treatment for that injury.

Weems v. Electric Ins. Co., et al., 15-854 (La. App. 3 Cir. 5/11/16); 193 So. 3d

1214—Claimant sought judicial review of summary judgment decision of the Office of Workers’ Compensation denying benefits. The Court of Appeal affirmed and held that claimant, who failed to disclose her long struggle with neck and back pain after accident, made willful misrepresentation in order to obtain benefits.

Maldonado-Mejia v. Eversound Kitchen & Bath, LLC, 15-CA-0859 (La. App. 4

Cir. 4/20/16); 194 So.3d 1136—The independent contractor was not entitled to workers’ compensation benefits because moving or cleaning work is not essential or integral to the sales or installation of cabinets and countertops. In order for an independent contractor to be covered under the “manual labor exception,” he must show that a substantial part of his work time is spent in manual labor in carrying out the terms of his contract with the principal and the work performed by him is part of the principal’s trade business or occupation. The jurisprudence has uniformly defined manual labor as work where the physical element predominates over the mental element.

Tellis v. Ash Timber Co., 15-1052 (La. App. 3 Cir. 4/27/16); 190 So. 3d 821—

Attorney, who represented workers’ compensation claimant in settlement of indemnity

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portion of claim, appealed judgment of Office of Workers’ Compensation requiring attorney to return all attorney fees withheld from claimant’s settlement because attorney did not comply with La. Rev. Stat. 2#:1143(B)(2). The Court of Appeal affirmed and held that claimant was entitled to return of all attorney fees withheld by attorney because attorney’s application to determine fees was untimely under statute, and settlement triggered running of statutory timeframe for attorney to file application.

Ledet v. Robinson Helicopter Co., 15-CA-1286 (La. App. 1 Cir. 4/15/16); 195 So.

3d 95—LWCC filed a “Motion to Enforce Settlement,” seeking to enforce a settlement between plaintiff and third parties in response to survival and wrongful death action against company that owned helicopter. The Court of Appeal held settlement agreement’s indemnity provision did not create right of action in favor of insurance carrier to seek enforcement of settlement agreement, and statute governing suits against third parties causing injuries did not provide insurance carrier a right to seek reimbursement of previously paid benefits from mother.

Black v. Centurylink, 50,572-WCA (La. App. 2 Cir. 4/13/16); 195 So.3d 28—

Worker’s compensation claimant sought review of decision of the Office of Workers’ Compensation determining that decision of medical director that topical hand cream should not be available was in accordance with medical treatment guidelines (MTG). The Court of Appeal reversed and held that Workers’ Compensation Judge erred in not finding that the MTG pre-authorized prescription of topical hand cream to treat claimant’s pain caused by chronic regional pain syndrome (CRPS).

Gilley v. Gilley Enterprises, Inc., 50,562-WCA (La. App. 2 Cir. 4/13/16); 195 So.

3d 20—Workers’ compensation applicant filed a disputed claim for benefits, which was denied. The Court of Appeal reversed and held that rule of civil procedure governing motions for new trial in ordinary civil cases applied in workers’ compensation proceeding.

Gulley v. Hope Youth Ranch, et al., 15-1076 (La. 3 App. 4/6/16); 188 So. 3d

1134—No error in medical director’s decision denying approval for a trial of a spinal cord stimulator.

Blanks v. Entergy Gulf States Louisiana, LLC, 15-1094 (La. App. 3 Cir. 4/6/16);

189 So. 3d 599—Employee of company hired to perform repairs to boiler brought action against business that hired company, alleging that employee sustained injuries when he fell through an unprotected hole on business’s premises. The district court granted summary judgment in favor of business. Employee appealed. The Court of Appeal affirmed and held that violation of statute governing contracts containing indemnification clauses did not bar business from asserting statutory employer defense, and business was entitled to the defense.

Gaines v. Home Care Solutions, LLC, 15-CA-0895 (La. App. 4 Cir. 4/6/16); 192

So. 3d 794—Workers’ compensation claimant brought action seeking benefits, alleging that her back was injured when she jumped backwards in a twisting motion after she was bitten by a client’s dog when she was working as a caregiver. The Office of Workers’

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Compensation awarded benefits. Employer appealed. The Court of Appeal affirmed and held that claimant’s back injury was caused by a work-related accident, and that the claimant was medically incapable of performing any type of employment and entitled to temporary total disability (TTD) benefits.

Peters v. Ray-Bar Const., LLC, 15-CA00230 (La. App. 1 Cir. 3/31/16); 193 So. 3d

165—Worker’s compensation insurer appealed from a decision of the Office of Workers’ Compensation finding that the policy it issued to subcontractor was in full force and effect on the date one of subcontractor’s employees was injured. The Court of Appeal reversed and held that insurer properly applied subcontractor’s payment to past due obligations and, thus, could cancel policy for failure to make premium payment that became overdue shortly after payment was applied.

Johnson v. Great West Casualty Co., et al.,15-981 (La. App. 3 Cir. 3/16/16); 186

So. 3d 1276—Claimant sought workers’ compensation for back injury based on unwitnessed accident four months before filing report. The Office of Workers’ Compensation awarded benefits, but denied request for penalties and attorney fees. Parties appealed. The Court of Appeal held that evidence supported award of benefits, and claimant was not entitled to penalties and attorney fees. Not every delay in reporting an accident necessarily discredits or casts serious doubt on the employee’s account of the accident.

Leidelmeijen v. Ferncrest Manor Nursing Home LUBA Workers’ Comp., 15-CA-1216 (La. App. 4 Cir. 3/16/16); 191 So.3d 38—The WCJ was not manifestly erroneous in accepting the experts’ malingering diagnosis and thus concluding that claimant was not entitled to any of the medical expenses that he sought to recover.

Johnson v. Sewerage & Water Board New Orleans, 15-CA-0950 (La. App. 4 Cir. 3/-/16) (not chosen for publication)—Indemnity benefits require a specific showing as to the claimant’s entitlement to benefits and cannot be awarded as compensation for a fining that the plaintiff was terminated by the defendant to avoid its statutory workers’ compensation obligations. The WCJ committed clear error in imposing penalties and awarding attorney fees for the defendant’s purported refusal to “pay the claimant’s emergency room expenses and mileage in a timely manner.”

Carr v. Sanderson Farm, Inc., 2015-0953 (La. App. 1 Cir. 2/17/16); 189 So. 3d

450—A co-employee struck the plaintiff at work causing injury. Although an intentional tort may be excepted from the workers’ compensation act, here there was no proof as to why the co-employee struck the claimant nor the scope his employment duties and how his intentional tort was incidental to those duties. Therefore, the employer was not vicariously liable in tort for this act. However, a cause of action can be stated in negligence against an employer by an employee who was the subject of an intentional act committed by a co-employee, after the employee notified the employer of threats by the employee made away from the workplace. Here, the bare allegation in the petition that the plaintiff informed her supervisors of a threat made by the co-employee outside the workplace and directed at her

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is not sufficient to establish that the employer should have foreseen the alleged intentional act being committed at work and acted to prevent it.

Whotte v. Int'l Paper Co., 2015-362 (La. App. 3 Cir. 10/21/15); 177 So. 3d 149—Subcontractor's employee brought personal injury action against general contractor, claiming that he sustained chemical burns to his feet and ankles while constructing scaffolding inside a boiler at contractor's plant. The Third Circuit held the general contractor was injured employee's statutory employer for purposes of workers' compensation benefits, and thus contractor was immune from personal injury tort suit under workers' compensation exclusivity provision. Employee claimed he sustained injuries while he was working for subcontractor and constructing scaffolding inside a recovery boiler at contractor's plant, contractor was contractually obligated to pay the premiums for workers' compensation benefits that subcontractor paid employee, subcontractor agreed to indemnify contractor as the principal for any compensation paid to employee, and boiler fueled the plant and required cleaning for it to function properly, which required construction of scaffolding.

Maxwell v. Care Sols., Inc., 50,088 (La. App. 2 Cir. 9/30/15); 179 So. 3d 650, writ denied, 2015-1954 (La. 11/30/15); 184 So. 3d 36—Claimant, a home health nurse, was injured when she was attacked by an assailant in the parking lot of a hospital where she had taken her home health client to the emergency room after he complained of chest pains. The home health care employer denied benefits claiming she was not in the course and scope of her employment at the time but instead had volunteered to go with her client to the hospital. The claimant was in the course and scope of her employment, because even if the employee has finished her day’s work and is in the act of leaving, she is entitled to a reasonable period while still on the employer’s premises, or at other places where employment activities have taken the employee, which is regarded within the course of employment. Here, the claimant accompanied her client to the hospital and remained until he was hospitalized or released at the direction of her employer. Under the “special mission” exception to the “going and coming” rule, if an employee is found to be on a special mission, she will be considered to be within the course of her employment from “portal to portal,” or in other words, from her home to the location of the mission, or alternatively, from the location of the mission to her home. The accident also arose out of her employment. The exception found in La. Rev. Stat. § 23:1031(E), that an accident will not be considered as having arisen out of the employment “if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee’s employment, does not include a one-sided violent attack by a third-party against the employee, but requires the active participation by both the employee and the third party.

Berard v. The Lemoine Co., LLC, 2015-152 (La. App. 3 Cir. 7/8/15); 169 So. 3d

839, writ denied, 2015-1516 (La. 10/23/15); 179 So. 3d 606—Employee of sub-subcontractor, who was injured when he fell through skylight while working on renovation of building, brought personal injury action against the owner of the building and the general contractor. General contractor filed motion for summary judgment, arguing that it was employee's statutory employer and that, therefore, its sole responsibility to employee was under the Workers' Compensation Act. The Third Circuit held that employee was a

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statutory employee of the general contractor, and thus general contractor was immune from tort liability under workers' compensation statutes. The fact that the contract between subcontractor and sub-subcontractor included clause recognizing sub-subcontractor as an independent contractor did nothing to change any statutory employer-employee relationship created by statute. Workers' compensation statutes revealed legislative intent that the provisions of the exclusive remedies statute apply to all principals, however far removed from the direct employer of the injured worker. XX. INSURANCE AND INDEMNITY

Morrow v. State Farm Mutual Automobile Ins. Co., 15-CA-578 (La. Ct. App. 4 Cir. 6/29/16) (not designated for publication)—Security guard was injured by a closing rear door of a delivery truck while he inspected it. American Empire filed a motion for summary judgment on the basis of an exclusion in its commercial general liability policy issued to Wayne’s Vending relating to the “use” of an automobile. Coverage was excluded for bodily injury “arising out of the ownership, maintenance, use or entrustment to others of any . . . ‘auto’ . . . owned or operated by . . . any insured. Use includes operation and ‘loading or unloading.’” The district court held the auto exclusion applied to bodily injuries caused while the delivery truck was stopped for inspection.

Harper and Pena v. State Farm Automobile Ins. Co., 50,728-CA (La. Ct. App. 2 Cir. 6/22/16); 2016 WL 3417307—The insured’s van was placed at a hit and run accident scene through its license plate. The policy provided coverage to a person using the van with the insured’s permission, and her testimony established that the insured’s son and girlfriend operated the van with permission. The district court held that the State Farm policy provided coverage for the accident because the son or girlfriend were more probably than not driving the van at the time of the accident. The district court rejected the girlfriend’s testimony that the van was inoperable at the time of the accident and the testimony denying that the son and girlfriend were the driver who fled the scene. The Court of Appeal affirmed.

Forgey v. Maynor, 50,719-CA (La. Ct. App. 2 Cir. 6/22/16); 2016 WL 3416532

(not released for publication)—Where a UM policy expressly excludes reimbursement or credit to a workers’ compensation insurer, the workers’ compensation insurer could not recover against the UM insurer for reimbursement of either past or future compensation payments to the insured. Motorist injured in automobile accident brought personal injury action against other driver, said driver's automobile liability insurer, plaintiff motorist's own auto insurer, and plaintiff motorist's employer's uninsured/underinsured motorist (UM) insurer. Employer's workers' compensation carrier sought to intervene, seeking reimbursement or credit for workers' compensation benefits paid to motorist. The district court entered summary judgment in favor of UM insurer with respect to workers' compensation carrier's claim of entitlement to reimbursement or future credit. Workers' compensation carrier appealed. The Court of Appeal affirmed and held that UM policy precluded reimbursement or credit to workers' compensation carrier. Vitelaro v. Zanca, 15-CA-1365 (La. Ct. App. 4 Cir. 6/22/16); 2016 WL 3421569—

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Fleet insurance policies do not require new UM selection forms be executed for each renewal policy.

Brazan v. Washington, Alexander, Scottsdale Ins. Co. and WHY, 16-CA-61 (La. App. 5 Cir. 6/14/16); 194 So.3d 1274—Plaintiffs brought wrongful death and survival actions against trucking company and its liability insurer. The district court granted partial summary judgment in favor of plaintiffs, finding non-owned auto provision of trucking company's liability policy provided coverage for trailer involved in fatal accident. Trucking company appealed. The Court of Appeal affirmed and held that trailer being used to transport sugarcane to sugar mill at time of fatal accident was a covered non-owned auto as described under trucking company's liability policy. Neither the language of the policy nor Louisiana jurisprudence imposes a requirement that the accident occur while the vehicle is being used in the course and scope of the named insured’s business and under the control of the named insured.

Hebert v. Boesch; GEICO Casualty Co.; and LM General Ins. Co., 15-CA-1791 (La. App. 1 Cir. 6/3/16); 194 So.3d 798—Motorist injured in car crash brought action against driver who rear-ended motorist's car, driver's liability insurer, and motorist's economic-loss only underinsured/uninsured motorist (EOUM) insurer. Motorist, driver, and driver's insurer settled. The district court awarded motorist $75,000 in general damages, $5,000 in future medical expenses, and stipulated amounts of $262.50 for lost wages and $15,290.98 for past medical expenses. Motorist's insurer appealed. The Court of Appeal affirmed as amended and held that motorist was properly permitted to recover full amount of economic losses from his insurer; award of general damages was warranted; but evidence was insufficient to support award of future medical expenses. Because the liability policy in this case clearly provided coverage that was less than the amount of damages suffered by plaintiff as determined at trial, the plaintiff could recover the full amount of his economic losses that were expressly included in the definition of economic losses in the EOUM endorsement. Power v. State Farm Fire and Casualty Co., 15-CA-796 (La. App. 5 Cir. 5/26/16); 193 So.3d 471—The policy provision excluding coverage was clear and unambiguous. Plaintiff argued that the provision did not define standard or guidelines to determine what constituted a “continuous or repeated seepage or leakage of water” over a period of time.

Weddborn and Martinez v. John Doe, Affirmative Ins. Co. and National

Automotive Ins. Co., 15-CA-1088 (La. App. 4 Cir. 5/4/16); 194 So.3d 80—Motorists involved in automobile accident brought action against insurers, seeking uninsured motorist (UM) coverage. The district court entered summary judgment in favor of insurers. Motorists appealed. The Court of Appeal reversed and held that fact questions regarding whether insured’s signature on UM rejection form was fraudulently executed or forged precluded summary judgment for insurer and automatic termination clause would not operate to terminate policy when insured obtained other insurance on the same vehicle. Although a properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected UM coverage, the insured denied she executed the form in a sworn statement.

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Safeway Ins. Co. of La. v. Gardner, et al., 15-CA-696 (La. App. 5 Cir. 4/27/16);

191 So. 3d 684—Automobile insured's liability insurer filed suit for declaratory judgment that it was not obligated under policy to provide coverage for losses to multiple vehicles that driver had caused while fleeing police driving insured's vehicle. Insurer of one of vehicles that was struck by driver filed reconventional demand for subrogation and reimbursement for amounts paid to its insured. The district court denied liability insurer's petition. Liability insurer petitioned for and was granted suspensive appeal. The Court of Appeal reversed and held that exclusion from coverage for losses arising out of insured’s own criminal or intentional acts did not violate public policy and driver was engaged in crime at time of losses, within meaning of exclusion from coverage for losses caused by criminal acts. Because the property and bodily injury were due to criminal flight from police and not traffic violations, coverage was excluded.

Thebault v. American Home Assurance Co., Healthcare Casualty Ins. Ltd.,

Aggreko, LLC and Touro Infirmary, 15-CA-0800 (La. App. 4 Cir. 4/20/16); 195 So.3d 113—Patient’s father, on behalf of patient, brought action against hospital, electrical generator supplier, and its insurer to recover for newborn patient's exposure to unreasonably dangerous heat and humidity due to loss of power in aftermath of hurricane. The district court granted insurer's motion for partial summary judgment. Supplier appealed. The Court of Appeal reversed and remanded and held that loss of power was single occurrence under self-insured retention (SIR) endorsement of $50,000 per occurrence. Based on language of the insurance policy, the retained limit of $50,000 must be applied per occurrence and the court determined this case involved a single occurrence.

Draayer v. Allen, 15-CA-1150 (La. App. 1 Cir. 4/15/16); 195 So.3d 78—Family of a motorist brought action for damages against oncoming motorist, insurer, and underinsured motorist (UM) insurer after motorist was killed in head-on collision. The district court granted summary judgment for UM insurer. Family appealed. The Court of Appeal reversed and remanded. On remand, the trial court granted summary judgment in favor of UM insurer again. Family appealed again. The Court of Appeal held that insurer could not rely on earlier of two UM selection forms as basis for motorist’s alleged rejection of UM coverage. The 2009 UM selection form rejecting coverage established that the 2009 form superseded the 2004 UM selection form rejecting coverage so State Farm cannot try to resurrect the earlier form when the subsequent form was executed during the policy period.

Zeigler, et al. v. The Housing Authority of New Orleans (HANO), et al., 15-CA-0626 (La. App. 4 Cir. 3/23/16); 118 So.3d 442—Housing inspection company and its principal brought action against city housing authority and provider of accounting and administrative services for displaced housing program, among other defendants, for defamation, conspiracy, and violations of the Unfair Trade Practices Act (UTPA), among other claims. The district court granted insurer’s peremptory exceptions of no right of action and cause of action by finding that Louisiana’s Direct Action Statute was preempted by federal law set forth in the Liability Risk Retention Act. The Court of Appeal reversed and found that the Direct Action Statute does not regulate the operations of CPA Mutual

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so it does not fall within the exemption provided by the federal law. Therefore, the Direct Action Statute is not preempted. CPA Mutual failed to demonstrate to the court that a risk retention group should be treated differently than other insurance companies operating in Louisiana to which the Direct Action Statute applies.

Kahl v. Chevalier, 15-1028 (La. App. 3/23/16); 188 So. 3d 449—Driver brought

action against hit-and-run motorist and motorist's insurer, after motorist rear-ended driver. The district court granted insurer's summary judgment motion, and denied driver's motion for partial summary judgment. Driver appealed. The Court of Appeal held that evidence was insufficient to conclude that motorist had motor vehicle liability policy, rather than automobile liability policy, and genuine issues of material fact precluded summary judgment for insurer pursuant to La. Rev. Stat. 32:900(A) and 32:898(A) detailing a motor vehicle liability policy. The insurance identification card presented by plaintiff did not comply with the evidence required by 32:898, and the insurer has the burden of proving whether an insured made material misrepresentations sufficient to rescind the insurance policy which requires intent to deceive under La. Rev. Stat. 22:680 and that had the false statement been true, the insurer would not have contracted or would have contracted at a higher premium rate.

Castille, et ux v. Blum, et al., 15-742 (La. App. 3 Cir. 3/16/16); 188 So. 3d 362—

Insured brought action against surplus lines insurer seeking uninsured/underinsured motorist (UM/UIM) coverage under “bobtail” liability policy, which pertained to operating tractor without trailer attached. The district court entered summary judgment in favor of insurer. Insured appealed. The Court of Appeal reversed and held that liability portion of policy did not limit UM/UIM coverage to tractors that were “bobtailing,” and UM/UIM endorsement did not limit UM/UIM coverage to tractors that were “bobtailing” because a covered auto was not defined to include only “bobtailing” tractors.

Ponce v. Welch, 15-CA-669 (La. App. 3/16/16); 191 So. 3d 73; writ denied, 2016-

00720 (La. 6/3/16); 192 So. 3d 751—Insured and her son brought action against insurer. The district court granted summary judgment for insurer. Insured and son appealed. The Court of Appeal held that insured’s waiver of UM coverage was valid, and that insured’s name was typed on UM selection form by someone else did not invalidate form. Waiver of UM coverage upheld in spite of plaintiff’s claim that her first language was Spanish and that she did not speak, write, or read English fluently.

State Farm Mutual Automobile Ins. Co. v. Safeway Ins. Co., 50, 098 c/w 50,099 (La. Ct. App. 2 Cir. 9/30/15); 180 So. 3d 450, writ denied, 2015-2005 (La. 1/15/16); 184 So. 3d 706—Car owner’s automobile insurer brought an action against the driver's insurer to recover reimbursement on the ground that the driver’s insurer provided primary liability coverage for the driver while using the owner’s car. The court held that Louisiana Revised Statutes section 22:1296(A) requires that coverage be extended to “temporary substitute motor vehicles.” Safeway’s insurance policy defined a “temporary substitute automobile” as “any private passenger . . . automobile, not owned by the named insured or any resident of the same household, while temporarily used as a substitute for the owned automobile when the owned automobile is being serviced or repaired by a person engaged in the

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business of selling, repairing, or servicing motor vehicles.” The vehicle in this case had not yet been taken to the repair shop, and the court held that it was unreasonable for Safeway to require that its insured immediately deposit a disabled vehicle at a repair shop before extending coverage to a temporary replacement.

Medine’s Collision Center, LLC v. Progressive Direct Insurance Copmany and

Progressive Security Insurance Company, 15-CW-1661 (La. Ct. App. 1 Cir. 7/12/15); 2016 WL 3688418—La. Rev. Stat. 22:1982(D)(1) does not provide a right of action for a body shop to seek a fine or injunctive relief from an insurer because the body shop was neither an insured nor a third-party claimant asserting a claim under an insurance policy. Rodgers v. State Farm Mut. Auto. Ins., 2015-0868 (La. 6/30/15); 168 So. 3d 375—Insured brought action against automobile insurer to recover uninsured/underinsured motorist (UM) benefits. The Louisiana Supreme Court held Presumption of waiver of rule that automobile insurance policy must provide underinsured/uninsured (UM) coverage did not arise from insurer's production of waiver form related to previous policy number, without further evidence from which it could be determined that one of the statutory exceptions to obtaining a new waiver applied. XXI. ABANDONMENT

Segerstrom v. Julian, 15-83 (La. App. 5 Cir. 10/28/15); 178 So. 3d 1116—Motorist brought personal injury action against city in connection with motor vehicle accident with police officer's vehicle. The Fifth Circuit held that no formal steps had been in prosecuting the action for three years, and thus, action was abandoned. The court found that a voicemail left by motorist's counsel with city's counsel asking about discovery was not a formal step in the prosecution of the personal injury action. The telephone call came three years after the request for a meet and confer discovery conference and without a letter to reschedule conference, and there was no discovery outstanding and no objection to the discovery city had provided.

Thomas C. Galligan, Jr. Bio

THOMAS C. GALLIGAN, JR., was named the Dean of the LSU Paul M. Hebert Law Center effective July 1, 2016. Prior to serving as the Dean of the LSU Law Center, Galligan served as the President and Professor of Humanities at Colby-Sawyer College. He was formerly the Dean and the Elvin E. Overton Distinguished Professor of Law at the University of Tennessee College of Law, where he also taught torts and admiralty. He also taught at the LSU Law Center from 1986-1998, where he was named the Dr. Dale E. Bennett Professor of Law and was honored by the students as the Outstanding LSU Professor six times. During his time at LSU, he taught Torts, Admiralty, UCC Sales, Remedies, Comparative Tort Law, and Advanced Tort Theory.

Galligan has served as a member and chair of the American Bar Association Accreditation Committee and is a frequent continuing legal education speaker on his areas of expertise. His scholarship has been cited by courts including the United States Supreme Court, the United States Court of Appeals for the Fifth Circuit, various United States District Courts, the Louisiana Supreme Court, and various State Appellate Courts. It also has been cited, discussed and relied upon by legal scholars in treatises, law review articles, and the proposed Restatement (Third) of Torts: Liability for Physical Harm. He holds an A.B. in Political Science from Stanford University, a J.D. from the University of Puget Sound (now Seattle University) School of Law where he graduated summa cum laude, and an LL.M. from the Columbia University Law School.

PROFESSOR JOHN M. CHURCH BIO

PROFESSOR JOHN M. CHURCH holds the Harry S. Redmon, Jr. Professorship & Allen L. Smith, Jr. Professorship at LSU Law Center, where he teaches Toxic Torts, Torts, Environmental Law, Antitrust Law, Copyright and Intellectual Property, Internet Law, Law & Medicine, Products Liability and Wine Law. He has a master's degree from the University of Illinois and a law degree from the University of Colorado, where he was a Harno Fellow, the Case Note Editor of the University of Colorado Law Review, and was inducted into the Order of the Coif. Prior to joining the Law Center faculty in 1991, Professor Church practiced law in Denver.

H. Alston Johnson III BioSenior Partner, Phelps Dunbar LLP

ALSTON JOHNSON practices in the area of litigation, particularly at the appellate level and with particular emphasis in the areas of tort litigation, insurance coverage and litigation and administrative law. He has extensive experience in legislative and regulatory and governmental matters and has represented numerous public entities in both counseling and litigation capacities.

Prior to joining Phelps Dunbar in 1984, Mr. Johnson was a member of the full-time law faculty at the Hebert Law Center of Louisiana State University for 12 years. He continued to serve as an adjunct member of that faculty from 1984-2011. When he took senior partner status with the firm in early 2012, he taught full-time again on that faculty until the end of the spring semester of 2013, when he reverted to his prior adjunct status. He currently teaches courses in Federal Courts and Conflict of Laws and has previously taught courses in Torts, Insurance, Louisiana Civil Procedure and Louisiana's civil law subjects.

Mr. Johnson maintains an active professional relationship with the firm, focusing on selected appellate work and supervisory writ practice.