Kids and Pets Left in Vehicles: Louisiana Legislature Makes Rescuers Immune, Maybe

In response to the COVID-19 pandemic, the Louisiana legislature enacted and modified several statutes to limit the liability of individuals, businesses, and government agencies for exposure claims. However, the immunity is not absolute. While the immunity applies to “ordinary” negligence claims, it does not apply where acts are grossly negligent, wanton, or involve reckless misconduct. Further, as a condition to the protection afforded, the entity must show substantial compliance with the applicable COVID-19 procedures established by government authorities.

La. R.S. 9:2800.25, entitled “Limitation of liability for COVID-19” (the general immunity statute) provides that no person, business, or government entity shall be liable for injury or death resulting from exposure to COVID-19 through the performance of its business operations unless the entity failed to substantially comply with at least one set of procedures established by the federal, state, or local agency that governs the business operations, or the injury was caused by gross negligence or wanton, reckless misconduct. With respect to employer immunity, the statute provides that, regardless of whether an employee’s COVID-19 illness is covered under workers’ compensation law, the employee shall have no tort-based remedy against his employer unless the exposure was caused by an intentional act.

The exception to immunity in the general immunity statute calls into question the type of conduct that would rise to a level of gross negligence. Gross negligence is defined in Louisiana case law as “willful, wanton, reckless conduct that falls between intent to do wrong and ordinary negligence,” “lack of even slight care and diligence,” and “utter, complete or extreme lack of care.” While the definition does not provide a bright line rule, it reflects that the conduct must move well beyond simple negligence to defeat immunity.

For a business seeking to manage the risks arising from COVID-19, some best practices emerge: (1) monitor the COVID-19 procedures of government authorities to keep informed of the latest recommended or mandated procedures, (2) institute compliance protocols, (3) document and administer those procedures to show compliance, and (4) most obviously, avoid actions or omissions that may be construed as grossly negligent, wanton, or reckless.

Mary Anne Wolf is an engineer/attorney with a construction background who represents design professionals, contractors and others in construction litigation. She also gives seminars on the subject. She enjoys travel, yoga and encouraging her husband in his gardening and cooking endeavors.

Keogh Cox attorneys Andrew Blanchfield, Chris Jones, and Chelsea Payne successfully defeated class certification in an action students brought to recover a partial refund of tuition and fees they claim they were owed after in-person classes were converted to remote learning because of the COVID-19 global pandemic. See Miazza v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.

In 2021, plaintiffs Taylor Gunter and Michael Miazza filed a lawsuit seeking a partial refund of the tuition they paid to LSU for Spring 2020 classes. They alleged that they were entitled to a partial refund of tuition and certain fees because in-person classes were cancelled in the wake of the COVID-19 pandemic. In lieu of in-person classes, remote learning went into effect after spring break, from March 30, 2020 through the end of the spring semester.

In addition to their own claims for partial refunds, the plaintiffs tried to bring the case as a class action and moved to certify a class defined as: “All students who, as of March 13, 2020, were enrolled at Louisiana State University's main campus in Baton Rouge who paid Tuition and/or Fees for the Spring 2020 semester, or on whose behalf such payment was made.”

After the completion of discovery for class certification, and after the dismissal of Plaintiff Michael Miazza’s claim, Plaintiff Taylor Gunter filed a Motion for Class Certification. After hearing, the Trial Court certified the class as alleged, finding all the requirements for class certification set forth in La. C.C.P. art. 591 were satisfied. LSU appealed the decision to the First Circuit Court of Appeals.

The First Circuit reversed the Trial Court’s judgment and found the Plaintiff failed to satisfy all of the requirements for class certification. After conducting a rigorous analysis of the class certification requirements, the Court concluded that “a multitude of individualized inquiries and proof make up the liability and damages issues essential to the putative plaintiffs’ implied contract claims.” The Court identified some of these “individualized inquiries” as follows:

• which representations in each school’s or college’s catalogs, bulletins, and website materials did the putative plaintiff rely upon in developing his or her expectation and what particular facilities and on-campus opportunities did a putative plaintiff expect to utilize;

• whether the putative plaintiff has historically utilized on-campus facilities and opportunities; which facilities and/or on-campus opportunities, if any, were necessary for a particular school's or college's course completion;

• whether a putative plaintiff was satisfied with the online instruction, course credits received, and grading options provided; and

• whether a putative plaintiff actually suffered any financial loss, mindful of each student’s particular situation.

Ultimately, the Court concluded that the record lacked sufficient evidence to support findings of offers and acceptances, where were necessary (1) to establish meetings of the mind and (2) conclude each putative plaintiff and LSU consented to an implied contract. Any determination of liability for an implied contract also is dependent upon proof of facts individual to each putative class member. Therefore, the class would degenerate into a series of individual trials.

The First Circuit concluded that certification of the case as a class action was an abuse of discretion. It reversed the Trial Court’s judgment and decertified the matter. Plaintiff filed a Writ Application with the Louisiana Supreme Court. On January 14, 2025, the Louisiana Supreme Court denied Plaintiff’s Writ Application, finally resolving the class certification issue. As a result, Plaintiff cannot pursue class certification, but rather may only pursue her own individual claim.

References:

Miazza v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 2023-1194 (La. App. 1 Cir. 8/9/24), 394 So.3d 874, writ denied, 2025 WL 87255 (La. 1/14/25).

The 1^st Circuit Court of Appeal recently ruled that a Plaintiff is prohibited from maintaining a direct negligence claim (negligent hire, negligent supervision, etc.) against an employer when the defendant/employer admits the employee was in the course and scope of the employment, stating:

“(A) plaintiff cannot maintain a direct negligence claim, such as negligent hiring, training, supervision, etc., against an employer, while simultaneously maintaining a claim against the negligent employee for which the plaintiff seeks to hold the employer vicariously liable, after the employer had admitted that the employee was in the course and scope of employment at the time of the alleged conduct.” See Elee v. White, - - So. 3d - - (La. App. 1 Cir 7/24/20) 2020 WL 4251974.

The ruling in Elee joins the Louisiana 5^th Circuit court of appeal which entered a similar ruling. See Landry v. National Union Fire Insurance Company of Pittsburg, 289 So.3d 177 (La. App. 5 Cir. 12/30/19).

Meanwhile, the federal courts in Louisiana, under the Erie doctrine, reached differing results. In Thomas v. Chambers, 2019 WL 1670745 (E.D. La. 2019)(Vance, J.) and Dennis v. Collins, 2016 WL 6637973 (W.D. La. 2016 (Hicks, J.), the District Courts acknowledged the holding outlined above. However, Judge Cain, sitting in the Lake Charles division of the Western District ruled to the contrary. See Roe v. Safety National, 18-cv-1353 (W.D. La. 2020).

But, what happens when the defendants further admit sole fault for the accident? The result was discussed in Ferguson v. Lenoir et al. Notably, Magistrate Judge Hornsby, ruling on defendants’ request for a protective order, found that defendants admission of fault eliminated the need to reconcile the different rulings when it found that “(no) evidence of (employer’s) negligent hiring, training, supervision or entrustment can raise (employer’s) percentage of fault above 100.” See Case 5:17-cv-01570-SMH-MLH Document 90 Filed 06/30/20 (p 2 of 6). As a natural consequence of this rule, the court recognized that a protective order limiting further discovery was appropriate. Plaintiff appealed the magistrate’s Order, but US District Judge Hicks denied Plaintiff’s appeal and affirmed Judge Hornsby’s ruling. Case 5:17-cv-01570-SMH-MLH Document 122 Filed 09/22/20.

John has been practicing over 30 years and is a Senior Partner with firm where he serves on the Management Committee. He has devoted attention to non-profit boards dedicated to assisting at risk children. He enjoys time with his three children and grandchildren. He also enjoys tennis and hiking.