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In McManus v. State of Louisiana Dept. of Wildlife and Fisheries, Mrs. McManus, individually and on behalf of her minor children, sued two State of Louisiana agencies for the drowning death of her husband. Mr. McManus drowned when he and a friend were attempting to catch baitfish with cast nets from a boat on a public lake near the base of a damn. The men were wearing life vests for the boat ride to the damn, but removed them after arriving at the damn.   Instead of floating down stream away from the damn, as the men had suspected, the boat was drawn towards the damn and was swamped by water falling over the damn. Mr. McManus drowned; whereas his friend swam to shore. After trial, a jury rendered a verdict in favor of Mrs. McManus and her children, but apportioned 25% of the fault for his drowning to Mr. McManus.

The State appealed on numerous grounds, but the primary arguments were that the state was entitled to “recreational immunity” and that it did not have actual or constructive knowledge of the dangerous condition that required it to correct the condition or warn of the danger. The state relied, in part, on the Louisiana Recreational Use Statutes, La. R.S. § 9:2791 (pdf) and La. R.S. §9:2795 (pdf) and argued that the jury improperly concluded that the State knew about the dangerous condition and failed to timely act to correct the condition or warn of its existence.

La. R.S. § 9:2791 provides, in relevant part, that “An owner . . . owes no duty of care to keep such premises safe for entry or use by others for . . . fishing . . . or boating or to give warning of any hazardous conditions, . . . . whether the hazardous condition . . . is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises.” La. R.S. §2791, on the other hand, makes clear that immunity will not apply when a landowner willfully or maliciously fails to warn of a dangerous condition of which it knows and that would not otherwise be open and obvious to the recreational user. The appellate court noted that the Louisiana Recreational Use Statutes do not provide absolute immunity for injuries sustained on recreational lands and facilities. Rather, the immunity is qualified and, whether immunity will attach, is dependent on a case-by-case factual analysis. 

Reviewing the facts in the record, the appellate court determined that the jury did not err in its conclusion that the State knew that there was a probability that a boat coming within a certain distance of the base of a damn could be drawn toward the damn and failed to warn of the danger. The court noted that the State included warnings regarding the dangers presented by damns on one of its websites and directed that, when the danger is known, the State is required to post warning signs or correct the dangerous condition. In addition, an employee of the Department of Wildlife and Fisheries had testified that he had a virtually identical experience at the same damn, but that he was able to don his life jacket to avoid drowning. Moreover, the plaintiffs’ expert provided unrefuted testimony that the danger of being pulled towards a damn was not obvious to the public and would not be obvious from looking at this particular damn. He testified, however, that such knowledge was common within the water resource management community and should have been within the knowledge of the people responsible for maintenance and operation of the damn. Finding actual or constructive knowledge of the danger and adequate time to caution users, the appeals court affirmed the State’s liability.

Take-Away: Whether a dangerous condition on recreational property is open and obvious may not always be clear, but a property owner cannot turn a blind eye to serious incidents on its property and hope to find shelter in the Recreational Immunity Statutes.

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The case of Cronin v Department of Public Safety reaffirms that whether a defect on a premises poses unreasonable risk of harm turns on the facts of the case.  Mr. Cronin was severely injured at a building owned by the St. Bernard Port, Harbor, and Terminal District (“Port”). The plaintiff attempted to exit a locked double door when his hand slipped off the metal bar that opened the door and his hand went through the door’s glass panel. The door did not have a sign advising that the door was locked. 

After a bench trial, the plaintiff was found to be 100% liable for his injuries. The trial court relied on testimony indicating that the plaintiff was agitated when he was leaving the building and that he forcefully attempted to push the door open. The plaintiff appealed to the Louisiana Fourth Circuit Court of Appeals. 

On appeal, the appellate court applied Louisiana Revised Statute 9:2800 (pdf) and Louisiana Civil Code Article 2317 (pdf), which limits public entity liability to damages caused by conditions of buildings within the entity’s care and custody. Those conditions have to be known to the entity and not timely corrected. According to the record on appeal, a security guard for the Port testified that he reported the door had a problem of “sticking” and that Port maintenance unsuccessfully attempted to fix the door. The Port locked the door after efforts to get it fixed failed. The Port argued that: locking the door did not create an unreasonably dangerous condition, by itself; a door that contains plate glass is not, in itself, unreasonably dangerous; and, a plate glass is not, in itself, unreasonably dangerous. The appellate court agreed. 

The appellate court, however, noted that the door was in an unquestionably high volume passageway for people entering and leaving the building. Furthermore, it was uncontroverted that the door was defective in that it was difficult to open, because it would stick. The court acknowledged that the plaintiff may have been agitated when he left, but that the plaintiff’s fault did not excuse the duty owed by the Port. The Port had a duty to keep visitors safe from a dangerous condition on the premises by either warning the public that the door was defective or repairing the door. The Court stated that “If the door had been locked, there was no sign to warn a person exiting the building. If the door had been left unlocked…, there is ample evidence that the door was heavy and would stick and not open entirely. Either scenario created an unreasonable risk of harm, especially in light of the fact that the door contained plate glass.”  

The appellate court reversed the trial court’s decision and, rather than remand, adjusted the allocation of fault and found the plaintiff ten percent at fault for his injuries. The plaintiff was awarded $523,951.35 plus judicial demand. 

Take-Away: An owner must warn of an unreasonably dangerous condition. Whether a condition creates an unreasonable risk, however, is not a simple task and includes a weighing of all of the facts.

This article was co-authored by Orian Williams, an associate at Irwin Fritchie Urquhart & Moore LLC

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Jerome C. Ardoin, Jr. was terminated from his employment with CLECO Power, LLC (“Cleco”) on a Friday morning. Mr. Ardoin was informed of his termination at Cleco’s Work Center in Opelousas but his office with Cleco was located in Eunice.  Cleco gave Mr. Ardoin permission to return to his Eunice office the following Monday morning to collect his personal effects and return any Cleco property in his possession. While clearing out his office on Monday morning, Mr. Ardoin slipped and fell and sustained serious physical injuries.

Mr. Ardoin filed a disputed claim for compensation against Cleco, under Louisiana’s Workers’ Compensation (pdf) scheme, seeking wage benefits, medical treatment, and penalties and attorney fees. Cleco denied liability. Both parties filed motions for partial summary judgment addressing Mr. Ardoin’s employment status at the time of the accident. The Workers’ Compensation Judge granted Cleco’s motion, denied Mr. Ardoin’s motion, and dismissed his claim. 

Mr. Ardoin appealed the administrative law judge’s rulings to the Louisiana Third Circuit Court of Appeal, arguing that the administrative law judge erred as a matter of law in determining that he was not covered by the Workers’ Compensation Act.  He pointed out that he was injured on his employer’s premises while wrapping up the affairs of his employment pursuant to an agreement with the employer.

The appellate court was tasked with determining whether Mr. Ardoin should be considered acting within the “course and scope” of his employment when he was clearing his desk. Reviewing Louisiana jurisprudence on the subject of employees seeking Workers’ Compensation benefits for injuries sustained before or after work hours, the court concluded that the time period between termination of employment and the injury was determinative. The Third Circuit held that a terminated employee could be considered acting within his course and scope of employment if he was injured on his employer’s premises within a “reasonable” amount of time of the termination. The court found that the delay between the Friday evening termination and the Monday morning injury was an unreasonable period of time. Thus, the court concluded that Mr. Ardoin was not acting within the course and scope of his employment and affirmed the Workers’ Compensation Judge’s determination that he was not entitled to Workers’ Compensation benefits. 

Notably, one judge dissented pointing to the fact that the delay resulted from Cleco’s insistence that Mr. Ardoin wait until Monday morning to clean out his office.  Accordingly, the dissent argued that Cleco granted Mr. Ardoin what it considered a reasonable time and that the injury occurred during this period. Therefore, Mr. Ardoin’s delay should not be considered unreasonable. 

Take Away: When terminating an employee, an employer should require the employee to immediately vacate the premises so that the employer may be afforded tort immunity for workplace injuries under the Workers’ Compensation scheme.

This article was co-authored by McDonald Provosty, an associate at Irwin Fritchie Urquhart & Moore LLC. 

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