Criminal Acts of Third Parties – In the recent decision of Irwin v. Rubens, — So. 3d —-, 2011 WL 396451 (La. App. 4 Cir. 2011), summary judgment was upheld where an individual was shot and killed by a worker allegedly in the course and scope of employment. The defendant asserted that, as a matter of law, he owed no duty. Specifically, the defendant averred that plaintiffs could not prove that he was the employer of the shooter, who was alleged to be an independent contractor.

The court restated the law that there is no duty to protect against the acts of a third party unless the defendant has a “special relationship” with the victim. The court did not find the act of violence sufficiently connected to any employment. Further, the court held than an employer is not vicariously liable as a matter of course merely because his employee commits an intentional tort on the business premises during working hours. Instead, liability will attach only if the employee is acting within the ambit of his assigned duties and in furtherance of his employer’s objective.

Premises Liability – In the recent decision of Jancan v. East Baton Rouge Parish School Bd., — So. 3d —-, 2011 WL 3627707, the First Circuit upheld summary judgment where a contract worker entered the back of a school’s dark auditorium and, while looking for a light switch, proceeded across the stage and fell into an orchestra pit, which was approximately five to six feet deep. The plaintiff contended that the school possessed a duty to have a light switch at each door to the auditorium.

Through a de novo review of the evidence, the court found that the school possessed no duty to warn. The court reasoned that failure to take every precaution against all foreseeable injuries does not necessarily constitute negligence. According to the court, the School Board could not have anticipated that a reasonably prudent individual would proceed onward into a dark auditorium without lighting his path. In addition, the court confirmed the there is no duty to warn of an “open and obvious” risk.

This case could be analogized by defendants in other premises defect cases because the risk was considered “obvious” only after considering how the plaintiff should have acted. Therefore, the risk was obvious even though the plaintiff had no ability to actually see the hazard.

“Duty Risk” – The First Circuit decision in Rainey v. Steele, — So. 3d —-, 2011 WL 3629360 gives a clear recitation of Louisiana’s “duty-risk” form of negligence.

The proper methodology for analysis of a negligence claims begins with answering the following questions:

  1. Was the conduct in question a cause-in-fact of the resulting harm?
  2. What, if any, duties were owed by the respective parties?
  3. Were the requisite duties breached?
  4. Was the risk, and the harm caused, within the scope of protection afforded by the duty breached?

In Rainey, the plaintiff was a contract worker who alleged that loose carpeting in a doctor’s office caused her fall from a ladder while painting. Comparing the experience of a professional painter to that of a doctor, the court found that the plaintiff was in the better position to gauge whether the carpet was a safe platform for the work. Therefore, the doctor owed no duty to the plaintiff.