RESTAURANT LIABILITY– The recovery by plaintiff against the Department of Health and Hospitals (DHH) was upheld in the First Circuit’s recent Travis v. Spitale’s Bar, Inc., 2013 WL 4105400 (La. App. 1 Cir. 8/14/13) decision. In Travis, the plaintiff became ill due to vibrio vulnificus bacteria contained in raw oysters sold by Spitale’s Bar. Although Spitale’s posted the required safety warnings in its bar, the statutorily-mandated signs were not posted in the restaurant area nor on the menu. The jury allocated fault as follows: DHH (40%), Spitale’s (33%) and plaintiff (27%).
On appeal, DHH argued that the trial court failed to properly instruct the jury on the law of “superseding negligence.” DHH contended that the decision by the plaintiff to ignore his physician’s instruction to avoid raw seafood constituted superseding negligence. In rejecting this argument, the First Circuit held that the court’s charge to the jury was adequate because they “informed the jury that they were permitted to assign fault to Mr. Travis for his role in causing his own injuries.”
INSURANCE– In Lockwood v. Allstate Ins. Co., 109 So. 3d 931 (La. App. 2 Cir. 2013), the Louisiana Second Circuit held that an insurance policy that expired one hour before an accident did not provide coverage. The insurer offered to renew the policy, but the insured did not pay premium timely. The original policy contained an “Automatic Termination” clause, stating: “If we offer to renew or continue your policy and you or your representative do not accept by making timely payment of . . . premium due, this policy will automatically terminate at the end of the policy period.” The court held that the policy expired according to its terms.
The court found that the facts presented a “nonrenewal” as opposed to a “cancellation,” and, therefore, not subject to the statutory procedures for cancellation.
CONTRACT– The Louisiana Supreme Court recently issued a ruling upholding the long-standing contract law cannon that parties must read their contracts. In Cynthia Fry Perionnet and Elizabeth Fry Franklin v. Matador Resources Company, 2012-2292, 2012-2377, — So. 3d –, the Court held that a contract could not be rescinded for unilateral error when the party’s alleged error was inexcusable. Specifically, the Court found that the plaintiffs claiming error: 1) could show no excuse for failing to read and understand the contract; 2) plaintiffs were self-proclaimed experts in the contractual subject matter; and, 3) the original contract was on the plantiff’s own forms. Because the Court could find no plausible excuse for plaintiff’s error, the contract was not rescinded.