Category: Summary Judgment

Third-Party Criminal activity: Is Summary Judgment Available in a Premises Liability case?

07.28.2025

The liability of a premises owner for third-party criminal acts has been the subject of many decisions issued by the Louisiana Supreme Court. But recently, the Court clarified how to analyze this issue in the context of summary judgment. In Campbell v. Orient-Express Hotels Louisiana, Inc. (Windsor Court), the Supreme Court reversed the court of appeal and held that Windsor Court was not liable for a robbery that occurred in its courtyard.

The factual background is simple: Campbell was a frequent guest at the Windsor Court. He decided to approach a vehicle near the entrance to the courtyard when he pulled a “substantial amount of cash” to show the female occupants in the vehicle. He placed the money back in his pocket and talked with them for one minute and forty-six seconds. When he pulled the cash from his pocket a second time, one of the occupants grabbed the cash and the vehicle sped away dragging him with it. Campbell then sued the Windsor Court alleging negligence, strict liability, failure to warn, failure to ensure the safety of its guests, etc.

The importance of this decision is found in how the Court analyzed the case to reach its conclusion that summary judgment was proper: The Court noted that it was not modifying prior duty/risk analysis but was clarifying how the analysis is to be conducted—The issues of “duty” and “scope of duty” are separate inquiries that require separate analysis.

In Campbell, the Court acknowledged that “duty” is a question of law for the court. It then concluded that “(w)hether a particular risk falls within the scope of that duty, by contrast, ‘is fact sensitive and ultimately turns on a question of policy as to whether the particular risk falls within the scope of that duty.’” However, the court continued, “‘(t)he determination of legal cause/scope of the duty involves a purely legal question.’” The Court conducted an historical analysis noting that prior decisions had “merged the concept of duty and scope of duty into a single consideration.”

On the threshold question of duty, the Court acknowledged that in the context of third-party criminal activity, Windsor Court, as an innkeeper, owed a duty to take reasonable precautions to protect its patrons from criminal acts of third parties. Having found this duty, the Court then concluded that “Campbell cannot meet the ‘scope of the duty’ element of his claim.” In other words, “the scope of the duty owed by the Windsor Court did not encompass the risk of the particular harm and Injury Mr. Campbell suffered.”

Here the court asked whether this particular risk and injury were “foreseeable.” The Court examined multiple factors to find that the robbery was not foreseeable, but the Court further noted “perhaps even more important to our decision is the manner in which the robbery occurred.” Campbell was not unexpectedly accosted, but his own actions placed him in peril. As such, the Court found no “ease of association” between Windsor Court’s duty to take reasonable precautions to protect its guests and the risk that the guest would voluntarily approach an unknown vehicle and flash a sizable pile of cash.

Justice Crain concurred in the opinion and noted that “scope of duty can be resolved on summary judgment if reasonable persons could not disagree that the manner of the injury is either within or beyond the scope of the duty.” Justice Crain also noted that the manner of injury must be analyzed in the context of “foreseeability” from the perspective of the premises owner and have an “ease of association” between the duty and the manner of injury—this analysis is necessary to “avoid making a defendant the insurer of all persons against all harms.” Thus, he agreed with the majority that Campbell was unable to establish the scope of duty element.

Reference:

Campbell v. Orient-Express Hotels Louisiana, Inc., 2024-00840 (La. 3/21/25), 403 So. 3d 573.

Courts Address Circumstances that Support Summary Judgment Dismissing Claims of Bad Faith Against Insurers

07.08.2025

Courts around Louisiana continue to address factual scenarios for when summary judgment on an insured’s first party bad faith claim may be appropriate.

In Creamer Brothers Inc. et al. v. General Casualty Co. of Wisconsin, the federal court for the Western District of Louisiana addressed an insured’s claim for bad faith penalties and attorney’s fees arising out of an insurance claim for damages sustained in a February 2021 ice storm. The pertinent timeline is as follows:

February 22, 2021: Date of Loss/Ice Storm
February 26, 2021: Adjuster inspects property
April 9, 2021: Adjuster completes estimate
April 15, 2021: Insurer issues payment
August 6, 2021: Insured submits damages estimate
August 26, 2021: Insurer reinspects property with engineer
September 24, 2021: Engineer submits report to Insurer
October 7, 2021: Insurer prepares new estimate
October 11, 2021: Insurer tenders supplemental payment
October 12, 2022: Suit filed

The insurer argued summary judgment was appropriate because its damage assessment created a reasonable, well-founded dispute regarding the extent of damage caused by the ice storm. Plaintiff disagreed, arguing bad faith attached because the insurer relied solely on its own expert reports which they argued amounted to an investigation that was so inadequate it could be deemed unreasonable.

The Court sided with the insurer, granting its summary judgment. In so holding, the Court relied on the portion of La. R.S. 22:1892 which provides an insurer’s conduct must be “arbitrary, capricious, or without probable cause” for bad faith to attach. Specifically, the Court stated, “the fact that the parties’ experts reached different conclusions in their respective assessments gives rise to a dispute in the extent of Plaintiffs’ coverage, but does not illustrate a genuine issue of fact as to General Casualty’s ‘bad faith.’”

The Court noted the insurer sufficiently communicated with the insured, provided the insured with multiple expert reports containing their data and conclusions, and “ultimately made payments to Plaintiffs in accordance with those conclusions.” Plaintiff failed to point to evidence General Casualty’s conduct was arbitrary, capricious, or without probable cause, “despite yielding unsatisfactory results.”

In a case out of the Eastern District, Gentilly, LLC v. State Farm Fire & Cas. Co., the Court similarly relied on plaintiff’s failure to establish a general issue of material fact to show the insurer’s conduct was “arbitrary, capricious, or without probable cause.” The Gentilly case arose out of the plaintiff’s insurance claim for damages sustained to its commercial shopping center during Hurricane Ida. The parties engaged in a series of inspections, estimates, expert reports, payments, and supplemental payments over the course of about thirteen months, followed by several months of inactivity, then another period of investigation and adjustment over the course of about nineteen months.

Plaintiff argued the insurer’s 43-day delay in its first payout, failure to have an engineer inspect the property for a year, and gross under-evaluation of the damages as evidenced by its supplemental tender supported its bad faith claim. The Court disagreed.

In support of its conclusion, the Court noted the insurer advised plaintiff the inspection would take multiple days, and the delay in issuing payment arose out of the inspectors’ availability. The Court noted the insurer’s actions were “consistently in line with its expert appraisals.” In conclusion, the Court stated, “[t]hough the payout process was protracted by the scope and complexity of the insured loss, plaintiff fails to raise a genuine issue of material facts indicating that State Farm’s actions were arbitrary, capricious, or without probable cause.”

Louisiana courts have not established a bright-line rule for determining when summary judgment is appropriate on an insured’s bad faith claim. However, these cases seem to suggest that continued adjustment over a period of time may not give rise to bad faith claims where an insured cannot cite to evidence an insurer’s conduct was “arbitrary, capricious, or without probable cause.”

References:

Creamer Brothers Inc. et al. v. General Casualty Co. of Wisconsin, No. 22-cv-6110, 2025 WL 818579 (W.D. La. Mar. 13, 2025).

Gentilly, LLC v. State Farm Fire & Cas. Co., No. 23-cv-262, 2024 WL 5246606 (E.D. La. Dec. 30, 2024).

Keogh Cox Secures Dismissal of Premises Liability Case

03.17.2025

The Fourth Circuit recently affirmed summary judgment Keogh Cox obtained in Clark v. Premier Automotive Management, LLC, finding the plaintiff’s circumstantial evidence failed to establish an unreasonable risk of harm caused her to fall.

In Clark, the plaintiff claimed she was injured after slipped and fell in a puddle of water in a service garage. Keogh Cox attorneys Chad A. Sullivan and Cole C. Frazier filed a motion for summary judgment on behalf of the defendants in response. The defendants asserted that the plaintiff failed to submit sufficient proof to establish that standing water or a hazardous condition caused her fall. Specifically, the defendants maintained that the plaintiff could not establish (1) an unreasonable risk of harm existed within the garage or (2) the puddle of water existed on the garage floor for an extended period of time.

The plaintiff’s deposition testimony established that it rained earlier in the day, that she was walking quickly before she fell, and that she was wearing flip flops. The plaintiff also testified she assumed she fell in a puddle of water because her back was damp after her fall. She described the amount of water under her shoes as the size of a “softball.”

The defendants also attached the affidavits of two employees who worked at the service garage on the day of the incident. The affidavits acknowledged wet conditions on the day of the incident but denied any prior complaints or accidents in the area. The affidavits also established that the plaintiff fell in an uncovered area of the garage that slopes downward. Thus, there was no possibility for standing water or puddles to collect.

Based upon this evidence, the appellate court found that the defendants satisfied their burden of proof to show there was no unreasonable risk of harm. The court stated the burden then shifted to the plaintiff to establish that there was an unreasonable risk of harm and thus establishing a genuine issue of material fact. However, the court found that the plaintiff failed to meet her burden because all her arguments were based upon conclusory allegations and unsupported speculation. To support her claims, the plaintiff could only cite to the “possibility” of the existence of standing water or puddles. As such, the plaintiff only speculated whether a hazardous substance or an unreasonable risk of harm caused her fall. Such speculation was insufficient to establish a genuine issue of material fact.

In so holding, the court affirmed the dismissal of the plaintiff’s claims that Keogh Cox obtained through summary judgment.

References:

Clark v. Premier Auto. Mgmt., LLC, 2024-0397 (La. App. 4 Cir. 2/10/25), — So.3d —, 2025 WL 451473.

Court holds real estate agents representing sellers are not required to investigate the seller’s representations about the property.

08.26.2024

In Casbon v. K.W.E.J., LLC d/b/a Keller Williams Realty, et al, the buyer of a home sued her real estate agent for the seller’s alleged misrepresentation of the home’s living area square footage. The facts of this case are unusual because the seller’s representation was based on a prior appraisal report, and accurately reflected the home’s square footage as stated in that report. Also, the buyer financed the purchase, and her lending institution appraised the home again, which resulted in a nearly identical living area square footage calculation.

The plaintiff sought to refinance about a year after buying the home. She used a different lending institution, which retained a different appraiser. The house included a sunroom which had been converted from a porch. The appraiser chose to classify the sunroom as something other than standard living area. As a result, the appraisal report stated the home’s living area square footage was several hundred square feet smaller than the prior appraisal reports, and the plaintiff was not approved for the refinance. The plaintiff sued her real estate agent on the ground that the agent failed to verify the living area square footage before plaintiff purchased the home.

The defendant agent filed summary judgment, arguing she did not owe the plaintiff a duty to investigate or confirm the home’s square footage. The trial court denied the defendant’s motion, finding an issue of fact regarding the classification of the sunroom, specifically “whether it is living area or not living area.”

Reversing the Trial Court, the Court of Appeal granted summary judgment in favor of the real estate agent. The Court noted prior caselaw establishing that agents are not required to confirm square footage as represented by a property owner by measuring or otherwise researching the accuracy of the seller’s representation. The Court also rejected the plaintiff’s contention that the issue here was how the sunroom was classified rather than how the room was measured. To the Court, this was a “distinction without a difference.”

The Court applied the standard rule that real estate agents only are required to disclose defects which are known or should be known to them. Additionally, the purchase agreement expressly put the obligation to verify the seller’s representation of living area on the buyer. Thus, the plaintiff’s claims were dismissed.

Case reference: Casbon v. K.W.E.J, LLC, et al, 23-321 (La. App. 5 Cir. 10/4/23), 375 So.3d 524.