The Louisiana Products Liability Act (“LPLA”) contains the exclusive
theories of recovery against a manufacturer for damages caused by its product.
The term “manufacturer” within the LPLA includes “the seller of a product who
exercises control over or influences a characteristic of the design,
construction, or quality of the product that causes damage.” The rapid growth
of e-commerce raises a unique question – how do we classify internet retailers?
Internet retailers generally act as a middleman for third party
manufacturers and online consumers. In this respect, they are not technically
“sellers” as defined by the LPLA because they typically do not have control
over the design or construction of the products they sell. Nevertheless, the
proper categorization of internet retailers may become important when someone
is injured by a product, as was the case in State Farm Fire and Casualty
Company v. Amazon.com, Inc., 2019 WL 5616708 (Miss. N.D. 10/31/19) —
In State Farm Fire and Casualty Company v. Amazon.com, Inc., two hoverboards purchased through Amazon caught fire inside a Mississippi home and the home was destroyed. In considering Amazon’s possible liability, the Mississippi Court asked whether Amazon was a “service provider” or a “marketplace.” In Mississippi, a finding that Amazon was a “service provider” would insulate it from the claim. However, if Amazon acted as a “marketplace,” it could be exposed by the common law to a negligent failure-to-warn claim. The Mississippi Court held that, because Amazon operated as a marketplace, the claim against it could go forward.
If similar facts arose in Louisiana, could Amazon or similar retailers be exposed under the LPLA? If an internet retailer established policies that forced a “true” manufacturer to negatively alter product quality, would the LPLA provide a remedy? For example, if an internet retailer sets a price ceiling, this artificial figure, especially if unreasonably low, might pressure a manufacturer to lower product safety. Is setting a price range the exercise of enough control or influence over the “design, construction, or quality of a product” to render internet retailers subject to suit under the LPLA? That is a question likely to be answered in cases to come.
As an integral theme to his best-selling novel Nineteen Eighty-Four, George Orwell once used the slogan: “Big Brother is Watching You.” This slogan embodied the idea that a person’s actions and intentions are being monitored by the government as a means of controlling and suppressing the will of the populace.
Although not as extreme as Orwell’s dystopian novel, Louisiana families will now be able to install video monitoring systems in their loved ones’ nursing home rooms pursuant to Act 596 of the 2018 Regular Session of the Louisiana Legislature. According to the “Nursing Home Virtual Visitation Act,” nursing homes can not prohibit the cameras or retaliate against residents who want to install them. The video systems will monitor residents who often cannot speak for themselves.
However, several requirements must be met to abide by the Act:
- The resident, or family if the resident lacks capacity, must provide notice of installation to the facility;
- Visual recordings must include date and time;
- The device must be stationary and fixed, not oscillating;
- Residents must pay all costs for installation, upkeep, and removal;
- Written consent is required from all roommates;
- Room changes are required if a roommate does not consent;
- Residents and applicants cannot be retaliated against for authorizing devices; and
- Signage must be installed at the front door of the facility (at the facility’s cost) and at the resident’s room (at the resident’s cost) advising of surveillance in the rooms.
Furthermore, nursing homes must provide forms to nursing home residents, or their legal guardians, outlining the ways the cameras can be installed. Under the Act, surveillance should be addressed at admission as a resident right. To promote compliance, the Act prohibits the use of any recordings in litigation when the device was installed or used without the nursing home’s knowledge or used without adherence to the required forms. Additionally, compliance with the Act is a complete defense against lawsuits brought purely because monitoring devices are in use.
Nursing facilities and the families of residents and patients should take care to comply with all of the requirements in the act to ensure that the video footage is actually admissible and that the facilities are not opening themselves to privacy lawsuits from other residents. “Big Brother” might not be watching, but the increase in affordable, high quality, surveillance cameras, coupled with the Virtual Visitation Act, means nursing facilities should anticipate that someone could be watching very soon.