Louisiana Premises Liability Blog : Louisiana Premises Liability Lawyer & Attorney : Irwin Fritchie Urquhart & Moore Law Firm : LA Slip & Fall, Property Security : New Orleans, Baton Rouge

On July 7, 2010, the Louisiana Supreme Court reversed the Louisiana Third Circuit Court of Appeal’s decision in Ardoin v. CLECO Power, L.L.C. The Louisiana Supreme Court noted that an employee's exclusive remedy against his employer for injuries suffered in the course and scope of his employment is provided by the Workers' Compensation Act.  Louisiana worker’s compensation law provides that compensation coverage is not automatically and instantaneously terminated by the firing or quitting of an employee.  Instead, the employee is deemed to be within the course of employment for a reasonable period of time during the winding up his affairs and leaving the premises. The question before the Court was whether Mr. Ardoin’s injuries occurred within a reasonable time of his termination.

The Ardoin Court found that the Third Circuit correctly applied Louisiana jurisprudence that holds that an employee who is injured during a reasonable period of time needed for winding up his affairs is considered to be within the course and scope of employment. The Ardoin Court, however, disagreed with the Third Circuit that Mr. Ardoin’s accident occurred beyond a reasonable period of time. The Court held that the relevant factors to be considered in deciding whether Ardoin’s injury occurred within a “reasonable period of time to wind up his affairs” were: (1) the purpose that prompted him to return to work; and, (2) the relationship between that purpose and the conditions surrounding his work.  Because Mr. Ardoin was on Cleco’s premises to clean out his office with Cleco’s permission, after his termination, and at a time imposed by Cleco, the court concluded that this was a reasonable amount of time. Thus, he was deemed to be within the course and scope of his broadly defined “employment” with Cleco. Accordingly, he could recover for his injuries under the Louisiana Worker’s Compensation scheme.

Take-Away: Whether an employee is acting within the course and scope of employment is not always clear, especially in post-termination settings, and may turn on the employer’s control over the time and manner of the winding-up of post employment activities. 

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

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Over two years after Hibernia National Bank opened a branch in New Orleans East in 1996, Esther Lingoni tripped over a landscape sprinkler head located at the intersection of two sidewalks and was injured. Ms. Ligoni sued Hibernia and its insurer, St. Paul Fire and Marine Insurance Company, its architect for the project, Sizeler Architects, Inc. (Sizeler), the project landscape architect, Daly-Sublette Landscape Design & Development, Inc. (Daly-Sublette), the general contractor, Shamrock Construction Co., Inc. (Shamrock), and the landscape contractor, Paradise Gardens Landscaping, Inc. (Paradise). Ms. Ligoni argued that the defendants were liable to her because the sprinkler head was located too close to the sidewalk and posed an unreasonable risk of harm. Ms. Ligoni settled with Hibernia and its insurer. The other defendants moved for summary judgment under Louisiana Code of Civil Procedure article 966 (pdf). 

The design professionals, Sizeler and Daly-Sublette, argued that Ms. Ligoni did not have an expert who would testify regarding the professional standards of architects or landscape architects. Therefore, she did not have any evidence that they breached a duty owed to Ms. Ligoni. Additionally, they argued that her only expert was a safety expert whose only document was that her trip and fall was probably caused by a defective sprinkler “pop-up head” that was in the up position when the accident occurred. 

For their part, the contractors, Shamrock and Paradise, argued they were immune from liability under Louisiana Revised Statute 9§2771 (pdf) because they followed plans and specifications provided to them by a third-party. Under that statute, a contractor cannot be liable for damage or destruction caused by following plans and specifications provided to it by a third-party. A contractor, however, may not be shielded from liability if the plans and specifications are obviously defective and a reasonable contractor would know that following the plans and specifications would result in an unsafe or substandard condition. The trial court granted the motions and dismissed Ms. Ligoni’s claims.

On appeal, Ms. Ligoni argued that the trial court erred in granting summary judgment because a genuine issue of material fact existed regarding whether the plans and specifications were properly prepared and whether the installation of the sprinkler system was in compliance with the plans and specifications. Additionally, Ms. Ligoni argued that expert testimony was not required in a case where common sense would dictate whether the sprinkler head was too close to the sidewalk and presented a tripping hazard. 

In affirming the dismissal, the appellate court noted that both of the contractors presented evidence that neither of them played any part in the preparation of the plans and specifications for the project and that they each had complied with the plans and specifications provided to them.  Moreover, there was no evidence that the plans and specifications were defective or that compliance with them created a dangerous condition. In addition, because the accident occurred two years after installation, after project approval, after the expiration of project warranties, and while another company was maintaining the premises, there was no evidence that the condition that allegedly caused the accident was the same that existed when the project was completed. Therefore, the district court did not err in finding that the contractor defendants met their burden or persuasion and that the plaintiff did not present evidence to rebut the strong showing made by them. 

As to the design professionals, Sizeler and Daley-Sublette, the appellate court also affirmed the summary judgment as to them, because Ms. Ligoni had no evidence that either of them had breached a professional duty or that their services fell below the local standard of care for similar professionals. Critically, the appellate court agreed with the district court that she failed to present credible evidence in support of her case. In fact, her own expert was of the opinion that her accident was, more likely than not, caused by a defective or broken sprinkler head that was in the up position. Her expert, although not a design professional, did not suggest that the location of the sprinkler was improper or that the location was the cause the accident. Accordingly, the appellate court found no error in the district court’s ruling.

Take-Away: Contractors may be shielded from liability for slip and fall claims when they follow plans and specifications provided to them by a third party and the plans and specifications themselves are not obviously defective or a contractor should know that strict adherence would create an unreasonably dangerous condition.

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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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On June 17, 2009, the Louisiana Court of Appeal for the Fourth Circuit determined that employees could recover in tort against their employer for injuries alleged to have been caused by the workplace.   The case, Watters, vs. Department of Social Services, involved the now infamous Plaza Tower Office Building located at 1001 Howard Avenue in New Orleans, Louisiana that was leased almost entirely by the State of Louisiana. Following numerous media reports in the Fall of 2001 concerning the potential existence of “toxic mold” in the Plaza Tower, a class action was filed on behalf of all State employees who were assigned to work in the Plaza Tower from September 1996 to February 2002. The Plaintiffs alleged that they had complained of, among other things, water leaks, defective elevators, the presence of unknown toxic substances, and safety hazards. They further claimed that, during their occupancy of the building, they suffered excessive illnesses, including sinus and allergy problems, debilitating headaches, skin irritation, watery eyes, and fatigue. In addition to suing the building’s owner, the Plaintiffs also sued the State – their employer – on the grounds that the State had breached its duty to provide a safe work place. In response to the suit, the State sought the protections of the Louisiana Worker’s Compensation Act (pdf) and to have the matter dismissed on those grounds, arguing that the Statute shielded it from tort liability. Although the Court recognized that the duty to provide a safe workplace was a specific statutory provision contained within the Worker’s Compensation Act, it nonetheless concluded that the duty could also sound in tort.   Relying on its decision in Ruffin v. Poland Enterprises, L.L.C., the Court refused to apply the Worker’s Compensation bar and, instead, concluded that the clerical employees' claims against their state employer for exposure to mold in the workplace fell outside the scope of protections afforded by the Workers' Compensation Act.  The court reasoned that such exposures were not: a work related accident; an occupational disease; or, peculiar to or characteristic of clerical employment.

Take-Away: The existence of hazardous conditions in the workplace – unless the hazardous condition is associated with the general nature of the work performed– can form the basis of tort liability against employers for failing to provide a safe workplace.

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