LANDOWNER LIABILITY – The Louisiana Supreme Court recently considered the extent of any duty owed by a landowner to protect others from the negligence of third parties. In Ponceti v. First Lake Properties, Inc., 2011-C-2711 (7/2/12), a young child suffered a leg injury after a teenager lost control of his bicycle while performing a “stunt.” The plaintiff alleged that the landowner should have prevented the riding of bicycles on the sidewalk in violation of a City Ordinance.
Under these facts, the Louisiana Supreme Court upheld summary judgment in favor of the apartment complex and utilized the “balancing test” from Posecai v. Wal-Mart Stores, Inc. to determine the threshold issue of duty. The Court found that no duty existed under the facts of the case because: 1) the general presumption is that no duty exists; and 2) the plaintiff could not show that the apartment owner possessed knowledge of similar occurrences in the past.
UNINSURED MOTORIST – The Louisiana Fourth Circuit Court of Appeal in Terrell v. Fontenot, 2011-CA-1472 (6/27/12) held that verbal instructions given to a legal representative to reject Uninsured Motorist coverage by a corporate officer were sufficient to grant this authority.
The Terrell court held that the term “legal representative” for purposes of the rejection of UM means any individual authorized on behalf of an entity to advise that UM coverage has been rejected. As a result, verbal instructions to reject UM given by the president of the company to a long-time employee were sufficient to demonstrate a proper rejection of UM.
WORKER’S COMPENSATION – The Louisiana Fifth Circuit Court of Appeal ruled in Flach v Diebold, Inc.,12-CA-1 (7/31/12) that the doctrine of “estoppel” did not benefit an employee who alleged that the continued payment of wages after an accident “lulled” him into not filing a timely workers compensation claim.
The jurisprudence has recognized the impact of “estoppel” when an employee is lulled into a false sense of security by the employer and is induced to forgo the filing of the claim until the prescriptive period has expired. To utilize this estoppel defense, the claimant must show that the employer’s words, actions or inactions induced the claimant to withhold suit. While the employer in Flach paid the plaintiff for missed work, it also clarified that the payments were not compensation benefits and even discussed with the worker that the worker’s compensation carrier was refusing to pay. Therefore, the payments did not support the estoppel defense.