PRESCRIPTION: The Court in Sims v. American Ins. Co., 2012-0204 (La. 10/16/12) held that a plaintiff’s voluntary dismissal with prejudice of a case in federal court equates to a “voluntary dismissal” under the Louisiana Code of Civil Procedure Article 3463.
In Sims, the plaintiff’s timely state court suit was removed to federal court. Thereafter, the plaintiff passed away. His survivors substituted as plaintiffs in the federal court suit. The survivors also filed a wrongful death and survival action in state court, one year and one day after the plaintiff’s death. Thereafter, the federal court suit was dismissed with prejudice.
Under these facts, the Louisiana Supreme Court held that the federal court suit did not interrupt prescription for the later-filed state court action and dismissed the state court suit under an exception of prescription. Because the appeal was taken on the prescription issues, the Court did not consider the res judicata effect of the dismissed federal court action.
ADMIRALTY: In Viator v. LeBeouf Bros. Towing, L.L.C., 2012-0314 (La. App. 4 Cir. 10/17/12), the Fourth Circuit reversed the trial court’s award of summary judgment because it found that an issue of material fact existed regarding whether the defendant vessel-owner breached an “active control” duty. This case offers greater definition of the “active control” duty. This duty recognizes that, while a vessel owner no longer retains the primary responsibility for safety in an area turned over to the stevedore, its maintains responsibility for the equipment and crew it still controls.
The Viator plaintiff was injured onboard a vessel docked at his station when he attempted to lift a crossover hose that had fallen onto the vessel’s deck. The Court found the vessel owner had a duty to avoid exposing longshoremen to potential hazards arguably within the control of the vessel owner. An issue of fact existed regarding whether the vessel’s crew had operational control, and thus “active control,” over the crossover hose.
PREMISES LIABILITY: In Dickson v. City of Shreveport, 47,268 (La. App. 2 Cir. 8/8/12), the plaintiff tripped and fell on a sidewalk that crossed a driveway into a parking lot. The plaintiff alleged the City owned and maintained the sidewalk and “knew or should have known” about the sidewalk’s allegedly defective condition.
The trial court denied the City’s motion for summary judgment, finding issues of fact regarding each of the plaintiff’s allegations. However, the Second Circuit reversed the trial court and granted the City’s motion. The Court commented that the social utility of the sidewalk outweighed the potential harm posed by its cracked condition. The plaintiff’s inability to point to any specific crack as the cause of her fall was cited in support for the Court’s decision. Further, the photographs showing a great number of cracks in the sidewalk signified to the Court that the hazard was “open and obvious,” and therefore not unreasonably dangerous to this plaintiff.
While cases such as Dickinson are helpful in the defense of trip and fall suits, the standard imposed upon private property owners is sometimes greater than the standard imposed upon cities or municipalities. With governmental entities, Courts often soften the standard because of the many miles of sidewalks these entities have to maintain.