Tag: premises liability

Louisiana Second Circuit Applies Anti-Dram Shop Statute to Grant Summary Judgment

02.05.2024

Louisiana’s “anti-dram shop” statute, La. R.S. 9:2800.1, limits the ability of a claimant to hold a provider of alcohol liable for damages resulting from the acts of an intoxicated patron. Subsection A of the statute declares that the consumption of intoxicating beverages, rather than the sale, serving, or providing of those beverages, is the proximate cause of any injury or property damage that the consumer may cause. Under Subsection B, anyone who lawfully serves alcohol to a person of legal age is provided immunity for any injury caused by the consumer that occurs “off the premises.” This immunity extends to sellers of alcohol and social hosts.

The Louisiana Second Circuit recently examined these provisions of this statute in Rugg v. Horseshoe Entertainment, et. al. The plaintiff alleged she was injured when an intoxicated patron (John Doe) fell onto her at a hotel bar. She alleged that the defendant, which operated a casino bar, was liable because it ignored multiple complaints about John Doe’s drunken state prior to the incident and failed to escort him out.

The defendant moved for summary judgment, arguing that Louisiana’s anti-dram shop statute prevented any finding of liability on its part. In opposing the summary judgment, the plaintiff argued that the statute did not rule out liability because the injury occurred on the premises.

The Second Circuit determined that the immunity afforded in Subsection B of the statute was not available because, as the plaintiff argued, the injury occurred on the premises. However, Subsection A of the statute, which declares the consumption, not the serving, of alcohol is the proximate cause of injury inflicted by an intoxicated person, still applied.

Under these circumstances, the Court held it had to determine whether the bar owner violated general negligence principles. In conducting this analysis, the court was required to focus on two issues: 1) whether the alcohol provider acted reasonably under the circumstances, and 2) whether the alcohol provider took any “affirmative acts” that increased the chances of the incident.

The Court of Appeal granted summary judgment under the facts of the case. The court found no evidence in the record that Horseshoe acted unreasonably leading up to the incident. Testimony indicated that the complaints about John Doe’s behavior arose after the incident occurred, not before. Similarly, the court reasoned that the failure to escort John Doe out of the bar was not an “affirmative act” that increased the risk of the incident because the record did not indicate Horseshoe had any reason to do so prior to the injury.

In conclusion, the court noted “that in no case will the serving of alcohol be held as the proximate cause of a tort in which alcohol was involved.” Therefore, the plaintiff had to show Horseshoe did something more to cause her injury than just serve John Doe alcohol. Because the plaintiff failed to do so, summary judgment was granted. Under these facts, Louisiana’s dram shop statute still applied to protect the defendant provider of alcohol, even though the injury occurred on its premises and the statutory immunity was not available.

References:

La. R.S. 9:2800.1

Mechelle Rugg v. Horseshoe Entertainment, et al., 55,239 (La. App. 2 Cir. 1/10/24), 2024 WL 104143.

Summary Judgment Affirmed Because Alleged Defect was Open and Obvious

01.10.2024

The First Circuit Court of Appeals recently affirmed summary judgment in Rainey v. Knight, on grounds that the alleged defect was open and obvious. Its ruling shows that the open and obvious defense remains viable and supports summary judgment when reasonable minds can only agree that a condition is not unreasonably dangerous.

In Rainey, the plaintiff fell and was injured while leaving a veterinary hospital. Evidence showed the plaintiff frequented the premises for nearly twenty years before the incident. The plaintiff attempted to descend four steps from the hospital’s elevated porch but stepped off the porch and fell twenty-one inches to the ground. Rainey filed suit for his injuries, alleging the defendant failed to maintain its property. Specifically, he claimed that the elevated porch lacked a railing, which created a defect.

The defendant filed a motion for summary judgment and argued (1) the front porch ledge was an open and obvious defect and (2) the plaintiff could not show the defendant had knowledge of the allegedly dangerous condition of the porch. The defendant also produced evidence to show it had no prior problems with anyone falling from the porch.

The plaintiff opposed the defendant’s motion, but his opposition was filed one day late. Because the opposition was not filed timely, the appellate court noted it was unable to consider the plaintiff’s opposition and exhibits under the Louisiana Supreme Court’s ruling in Auricchio v. Harriston.

On appeal, the court focused its analysis on whether the defendant breached a duty owed to the plaintiff, applying Louisiana’s risk/utility balancing test to consider the utility of the condition, the likelihood and magnitude of harm, the cost of preventing the harm, and the nature of the plaintiff’s activities.

In examination of the likelihood and the magnitude of the harm, the appellate court noted that summary judgment may be granted if a condition is open and obvious. If reasonable minds could only agree that the condition was not unreasonably dangerous, that condition would be open and obvious, and the plaintiff would be unable to establish the defendant breached any duty owed to the plaintiff.

Considering the evidence before the court, the First Circuit found a reasonable person would have found the lack of a railing on the porch open and obvious and would have avoided the area where plaintiff fell when exiting the building. Importantly, the court found the lack of a railing was apparent to all who encountered it such that it was open and obvious.

The Rainey court also noted that the lack of reported complaints about the alleged condition indicated a low risk of harm. The height of the porch also showed the likelihood and magnitude of the plaintiff’s harm was minimal. In light of this evidence, the lack of railing around the entire porch was not an unreasonably dangerous condition. No reasonable factfinder could find that the defendant breached any duty owed to the plaintiff, and summary judgment was appropriately granted.

References:

Rainey v. Knight, 2023-0133 (La. App. 1 Cir. 11/3/23) (La. App. 1st Cir. Nov. 3, 2023)

Auricchio v. Harriston, 2020-01167 (La. 10/10/21), 332 So.3d 660

Court Addresses the Reach of the Louisiana Health Emergency Powers Act’s Immunity Provision for Claims Against Health Care Providers

07.13.2023

The Louisiana Health Emergency Powers Act (LHEPA), La. R.S. 29:760 et seq, was enacted in 2003 to allow the government to use extraordinary powers in order to respond to potential or actual public health emergencies. Historically, claims against medical providers have been governed by a negligence standard, which requires a plaintiff to prove the provider failed to act with reasonable care. However, La. R.S. 29:771(2)(c), which was enacted as part of the LHEPA, provides what has been described as a limited or quasi-immunity for health care providers:

During a state of public health emergency, any health care providers shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.

This provision imposes a heightened standard of gross negligence or willful misconduct for claims against health care providers and their employees. “Gross negligence” has been defined as “the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.”* Therefore, absent a showing of gross negligence or willful misconduct, the provision provides immunity from civil liability for all claims against all health care providers.

The reach and application of this heightened standard of gross negligence under the LHEPA has been the subject of recent rulings from Louisiana courts. In Lejeune v. Steck, which was decided before COVID-19 in connection with a public health emergency declared following Hurricane Katrina, the Louisiana Fifth Circuit Court of Appeals ruled that the LHEPA’s heightened standard applied to all medical providers in the state while the state was in a public health emergency.^

In Lejeune, a doctor left a sponge in a patient during a surgery. The plaintiff argued that a general negligence standard should apply because the surgery occurred outside the Hurricane Katrina emergency area. However, the Court found that the plaintiff must prove gross negligence or willful misconduct because the LHEPA “does not provide for a limited set of health care providers, nor does it limit its application to only those medical personnel rendering emergency assistance voluntarily due to the emergency in the area.” Thus, the Court ruled the LHEPA was broad reaching and covered all health care providers in all areas of Louisiana during the public health emergency.

More recently, Governor Edwards invoked the LHEPA on March 11, 2020 in response to COVID-19. In line with the all-inclusive application seen in Lejeune, the Louisiana Second Circuit Court of Appeals recently held that the LHEPA applied to all claims against health care providers that arose during the public health emergency declared for COVID-19.

In Lathon v. Leslie Lakes Ret. Ctr., the Second Circuit applied the LHEPA to a premises liability claim.^^ The plaintiff slipped and fell in a puddle at Leslie Lakes Retirement Center. The accident occurred during the declared public health emergency. The retirement center filed a motion for summary judgment and argued that because it qualified as a health care provider, the gross negligence standard set forth in the LHEPA should apply to the plaintiff’s claim.

The court agreed and found that the statute dictated that immunity applied in favor of any healthcare provider for any personal injury or property damage claim as long as it arose during a public health emergency. In so holding, the Court stated that the purpose of the LHEPA was to alleviate the liability burden on healthcare providers during public health emergencies. Therefore, the Court found its ruling aligned with the purpose of the act. The Lathon decision is significant because it applied the LHEPA’s statutory immunity to personal injury claims against healthcare providers outside of a medical malpractice setting.

At least one justice on the Louisiana Supreme Court voiced a desire to address the constitutionality of this statutory immunity provision. However, the Court ultimately declined to review the Second Circuit’s ruling. Therefore, under Lathon, it appears the statutory immunity granted under the LHEPA applies to any claim brought against any healthcare provider for acts that occur during a public health emergency. While it remains to be seen how courts will address this issue in the future, these decisions show the reach and application of the LHEPA continue to evolve.

References:
*Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La. 7/5/94), 639 So. 2d 216.

^Lejeune v. Steck, 13-1017 (La. App. 5 Cir. 5/21/14), 138 So. 3d 1280, writ denied sub nom. Daigle v. Steck, 2014-1408 (La. 10/3/14), 149 So. 3d 800.

^^Lathon v. Leslie Lakes Ret. Ctr., 54,479 (La.App. 2 Cir. 9/21/22); 348 So.3d 888, writ denied, 2022-01566 (La. 12/20/22); 352 So.3d 80.

Louisiana Supreme Court Clarifies Analysis for Open & Obvious Conditions

05.03.2023

It seems intuitive that people have an obligation to avoid potentially harmful conditions that are open and obvious. Nevertheless, treatment of open and obvious conditions in Louisiana law has proved tricky because many cases did not apply a uniform analytical framework. In Farrell v. Circle K Stores, Inc. and the City of Pineville, the Louisiana Supreme Court recently offered needed guidance on the appropriate analysis for open and obvious conditions.

The plaintiff stopped at a gas station and decided to walk her dog in a nearby grassy area. To get to the grassy area, Farrell had to cross a pool of water that was “approximately the length of a tractor-trailer.” Farrell attempted to jump across the narrowest part of the pool, but slipped and fell. She sued for damages arising from her injuries. The defendants moved for summary judgment on the grounds that the condition was open and obvious. The trial court and court of appeal denied the defendants’ motion. However, the Louisiana Supreme Court reviewed the matter and reversed.

In finding that the condition was open and obvious, the court began its analysis by outlining the elements that a plaintiff must establish to recover for damage arising from a defect under Louisiana Civil Code articles 2315, 2316, 2317 and 2317.1:

That the defendant owed plaintiff a duty to conform its conduct to a specific standard;
That the defendant breached the duty owed;
That the defendant’s conduct was the cause-in-fact of the plaintiff’s injuries;
That the defendant’s conduct was the legal cause of the plaintiff’s injuries; and,
That the plaintiff suffered damages.

The court also highlighted the requirement under La. R.S. 2317.1 that plaintiff show the defendant knew or should have known of the condition before the injury occurred.

The court noted that some courts had assessed whether a condition was open and obvious in the context of whether the defendant owed the plaintiff a duty, while other courts had assessed whether a condition was open and obvious in the context of whether the defendant had breached the duty that was owed. In Farrell, the court found a duty was owed under the code articles referenced above. It clarified that whether a condition was open and obvious should be considered during analysis of whether the duty was breached, pursuant to Louisiana’s “risk/utility” test. This test requires consideration of whether the condition presented an unreasonable risk of harm, which considers whether the condition had any social utility; the likelihood and magnitude of harm the condition presented; the cost of preventing the harm; and the nature of the plaintiff’s conduct, including whether plaintiff’s conduct was socially useful or inherently dangerous.

Specifically, whether a condition is open and obvious should be considered in determining the likelihood of harm and magnitude of harm to an objectively reasonable person. The court further advised that the specific nature of the condition should be considered, such as its location and size. In contrast, a plaintiff’s particular and subjective knowledge of the condition is not relevant in determining whether defendant has breached a duty.

The Farrell court applied this analysis to the facts. It found that the pool served no useful purpose. No evidence existed regarding the cost to eliminate the risk. With respect to Farrell’s conduct, the court found that walking a dog was not dangerous by nature and may have an important social function, but this did not weigh heavily in the analysis. However, with respect to whether the condition as open and obvious, the court considered the location of the pool at the edge of the parking lot, the size of the pool, and the fact that it was apparent to all who encountered it. Thus, the condition was open and obvious, and the likelihood of and magnitude of the harm was minimal.

The court concluded that these factors collectively showed the condition was not unreasonably dangerous. The defendants did not breach their duty to plaintiff, and summary judgment should have issued for the defendants. In so holding, the Supreme Court provided clarifying guidance on analysis of open and obvious conditions under Louisiana law.

Case Reference:

Farrell v. Circle K Stores, Inc. and the City of Pineville, 2022-000849 (La. 3/17/23), — So.3d —-, 2023 WL 2550503.

Summary Judgment Affirmed in Premises Liability Case Upon Court’s De Novo Review

05.17.2021

In Marrero v. I. Manheim Auctions, Inc., the plaintiff fell after he exited a building during a rainstorm and stepped off a curb into a parking lot. He claimed he stepped into a divot where asphalt had washed away. The defendant moved for summary judgment.

In opposition, the plaintiff offered an expert affidavit that cited a lack of handrails, code violations, and loose pebbles as contributing to the plaintiff’s fall. To recover in the case, the plaintiff possessed the burden under La. R.S. 9:2800.6 to establish three elements: 1) the parking lot presented an unreasonable risk of harm, 2) this risk of harm was reasonably foreseeable, and 3) the defendant possessed actual or constructive notice of the alleged defect.

The defense argued the plaintiff could not show the parking lot presented an unreasonable risk of harm that was reasonably foreseeable and produced an expert affidavit to show the divot was only 3/16” deep. Evidence also showed the plaintiff was familiar with the area where he fell. The defendant also had received no prior complaints about the area. The trial court found that the parking lot did not present an unreasonable risk of harm because the divot was only 3/16” deep and granted summary judgment.

On appeal, the plaintiff argued that the trial court should not have granted summary judgment in light of the competing expert affidavits regarding whether the parking lot presented an unreasonable risk of harm. However, when a motion for summary judgment is appealed, the court uses a de novo standard of review. Under this standard, the appellate court reviews all issues and considers all evidence submitted to the trial court in its ruling.

The First Circuit affirmed summary judgment but did so for different reasons than the trial court. The Marrero court found the plaintiff failed to produce any evidence of the third element, i.e., whether the defendant knew or should have known of the defect. Because the plaintiff failed to establish a material issue of fact as to all three required elements, summary judgment was granted. Marrero reminds that appellate courts may consider facts and legal issues the trial court did not address in its ruling.