Does the grocery store have a duty to secure its buggies?

Early on law students are exposed to the concept of “reasonably foreseeable.” It will be interesting to see how this plays out in a case recently filed in Orleans Parish by a woman who was in an automobile accident she alleges was caused by a stray shopping cart. The plaintiff contends that the grocery store failed to make appropriate security measures which resulted in the basket rolling off the parking lot and onto the highway where she was driving. Doubtless, the issue will arise whether Winn-Dixie knew or should have known that its baskets were a substantial factor in causing an unreasonable risk of harm. In this case, whether it should have known the basket could ultimately end up in the highway, and whether it could have prevented the accident had it exercised reasonable care.

Whether or not Winn-Dixie has such a duty is not an ironclad rule. Although, theoretically our civil law system has a code which we rely upon in instances of tortious infractions, the outcome will be heavily fact intensive. What measures were taken to avoid the situation, by both the plaintiff and the defendant? Did Winn-Dixie have actual knowledge that its baskets were exiting the property (either intentionally or negligently)? The answer will have to be decided by a judge summarily, or perhaps even by twelve jurors. The result is guaranteed to be interesting.


Driver-less cars: not if but when.

In 2007 I first saw an article in Science Daily advocating the possibility of cars that drive themselves. Always cognizant of the inherent danger we face on a daily basis-through driving our vehicles-the prospect of safer smarter cars resonated within me. I carried this in the back of my memory, without circumstance, until the past couple years. Notably, with the relatively recent news headlines that Google has developed such a vehicle. According to what I’ve read, this cutting-edge vehicle (Too bad the name Google Drive is already taken) is no longer beyond the realm of possibilities, but that the question seems to be if rather than when. While we are closer than ever to creating the technology to make the “driver-less car” possible, the concept is still very foreign to many people. I still remember my 65 year-old neighbor gawking at the idea of a car that he couldn’t “hit the gas” in.

After thinking about this prospect for a few years, some ideas have come to my mind. First, relinquishing control of a particular mode of conveyance is not so alien. Every subway, bus, taxi, plane, or boat that I’ve ridden in has always been controlled by someone other than myself. Obviously, in a personal motor vehicle the “chauffeur” is not a human being but the computer or technology itself. Consequently, this raises even more complex issues regarding insurance, fault and liability.

A recent column in Bloomberg News juxtaposes the speed of growing technology with the lag of regulations. Technology is perceived to be growing at an exponential rate, while regulators and legislators are mere human beings. Laws are subject to the democratic process, requiring votes, committees, tabling, quorums, and convening on a quarterly basis. These technologically advanced vehicles are developing at a rate that is unmatched by which our government is capable of reacting. Bloomberg even suggests the federal government step in to regulate these innovations. This strikes directly into the heart of issues of federalism and state sovereignty. Traffic laws are traditionally considered “police power” which the United States Constitution vests in the authority of the states. The Bloomberg article hits on all these points and more, including the federal government’s role in overseeing vehicle safety, the states’ regulation of insurance and licensing of drivers, how to assign liability and responsibility to inanimate objects rather than a person driving.

The future of driver-less cars appears to be certain, even though the logistics haven’t been hammered out yet. Fortunately, regulators are embracing innovations which could revolutionize the safety of the automobile industry. I look forward to learning more on this polarizing and multifaceted subject as it develops.


Changes to how we do things around here: default judgments

As mentioned in a previous post, changes to the code of civil procedure have affected not only the summary judgment, but also how default judgments are procured. Louisiana Code of Civil Procedure now requires sufficient proof to establish a prima facie case to be admitted into the record, before a confirmation in granted. Although it sounds like a nuance, the previous language only required proof sufficient to establish a prima facie case, without requiring it to be put in the record. This was problematic on appeal, since the presumption exists that a prima facie case was made in the lower court upon granting a default. Logically, an appellant that was defaulted has an unfair burden if it must overcome prima facie proof that was not privy to the record. By legislating an amendment to the rules of procedure I think lawmakers took the correct course of action.

For lawyers confirming defaults, be aware that you should prosecute your case like you would any other judgment. That is, by creating a record and submitting documentary evidence and even testimony if possible. Also, it is uncertain whether this change will affect the ability to obtain a default judgment by mail. Despite the change in the rule, the policy at my firm forbids obtaining “mail-in” defaults. Our practice regarding default judgments is, and has always been, to conduct a trial (regardless of how small or short it may be) and produce witnesses and documentary evidence for the record.

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When worlds collide.

An interesting legal ethics case out of New Jersey has caused a former municipal judge to resign. According to the ABA Online Journal Vincent Sicari, in addition to his municipal judgeship, was working as a stand up comedian on the side. The State Supreme court unanimously ruled that Mr. Sicari could not continue to preside over municipal court so long as he was also performing stand up comedy routines. Given the ultimatum, Mr. Sicari chose to resign from his position as a judge.

In its reasoning, the Supreme Court of New Jersey considers some of the content from Mr. Sicari’s comedy routine. It is the court’s opinion that in the course of his show Mr. Sicari demeaned certain persons, ethnic groups, or people based on their national origin, in addition to revealing some of his political leanings. Based on the reasonable possibility some of those same same persons or ethnic groups he demeans may appear before his court, Mr. Sicari was forced to choose between comedy or his judgeship.

Admittedly, the action of the New Jersey Supreme Court does not strike me as unconscionable. While I adamantly oppose restraints or suppression of freedom of speech, at the same time the impartiality of the tribunal is sacrosanct. As an attorney it is uncomfortable to see limits placed on speech, even if it is offensive.  However, judges are public officials and may be subject to a heightened degree of scrutiny or criticism. The issues are complex, but on the information given here I think the court played it safe and made the right decision. Mr. Sicari, on the other hand, is now free to say whatever he wants.

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Customer slips on soda in the store, sues Pepsi and CVS.

According to the Louisiana Record a local resident is suing international beverage company Pepsi together with CVS pharmacy, after allegedly falling in a store as a result of spilled soda on the floor. At first impression it may seem strange to sue the store and the beverage company. But this is the typical “shotgun” approach that crafty lawyers have been taught since the first year of law school. As tenuous as it may appear, a lawyers’ standard approach is to sue every party that has any perceived connection to the complaint. The theory being that it is better to have them and not need them, then vice versa.

Thus, in an abundance of caution a Louisiana lawyer includes the pharmacy and the manufacturer (or distributor) of the soft drink on which the plaintiff allegedly fell. Of course, this will probably require the showing that Pepsi knew or should have known that its product would enter the stream of commerce in this state. Probably not too difficult, but that won’t keep Pepsi on the hook that easily. Federal Courts are notoriously conservative when it comes to personal injury cases. In a state where “slip and fall” cases have a pretty hefty burden of proof, to keep Pepsi in the game the plaintiff’s will likely have to show Pepsi knew or should have known that it was manufacturing or distributing a faulty product. And further, that if Pepsi had exercised reasonable care it could have prevented the product from creating an unreasonable risk of harm to the end consumer.

The focus of this post intentionally omits the mention of CVS but rather concentrates on Pepsi for illustrative purposes. This is purely because I find the issue of Pepsi’s product liability (or not) more interesting than the merits of a “slip and fall” case. As always, comments are welcome and appreciated.

Virginia jury awards over $3 million to injured hospital patient.

A jury in Newport News Virginia awarded $3.5 million to a woman who was injured while under the care of a hospital. The 87-year-old woman had a hip surgery but fell while still recovering in the care of Riverside Hospital. The case is an interesting juxtaposition between a negligence case and a medical malpractice case. Here, the plaintiff alleged her injuries were due to negligence on the part of the hospital staff and personnel, rather than the fault of a doctor in performance of medical care. The plaintiff was successful in persuading the jury the hospital could or should have been able to prevent the injury had it exercised reasonable care.

On the plaintiff side there is cause for guarded enthusiasm. The hurdle of trying the case successfully is over, but the post trial procedure now begins. Given the amount of the award it would be surprising if the defendant doesn’t request a new trial, reduction of the judgment, or a judgment not withstanding the verdict which could take weeks or months depending on the volume of cases on the court’s docket. In Louisiana, the time delay for filing an appeal begins after post trial relief has been adequately disposed of.

In Jefferson Parish suit resident alleges she was injured at Bed Bath & Beyond.

Recently reported by the Louisiana Record, Bed Bath & Beyond is being sued by a customer who was alleges she was injured while shopping at a store when boxes fell on her head. The article also gives details that the New Orleans based law firm is representing the plaintiff in the 24th Judicial District Court of Jefferson Parish before the Honorable Judge Ross LeDart. Given the conservative reputation of the venue I’d rather be on the defense side of this case. The articles also notes that the plaintiff is seeking an”unspecified” amount of damages, which is the standard form of a Louisiana pleading which doesn’t allow for a monetary amount to be included but rather a “prayer” for damages which are “reasonable under the circumstances.”  This leaves open the possibility for the defense to file a removal action to federal court, which is another standard practice, and what I would do if I were defending the case. In any event, this is just the inception of the case and anything could happen in time.

Changes to Louisiana Code of Civil Procedure: Summary Judgment

Some of you may already be aware of changes to Louisiana Code of Civil Procedure article 966 governing summary judgments. On its face, it appears that evidence is “deemed admitted” when it is submitted in support or in opposition to the summary judgment, and which is not addressed accordingly. The draft copy of the law states “objections to evidence in support of or in opposition to a motion for summary judgment must be raised in memorandum or written motion to strike stating the specific grounds therefor.” At this point, we can only guess as to what the practical and procedural implications will be.

The other notable change to article 966 is in subpart B(2), providing that in the event summary judgment is denied the court “should provide reasons for the denial on the record, either orally upon rendition or in writing sua sponte or upon request of a party within ten days of rendition.” Although the impact of this provision is also uncertain, it appears to aspire towards clarity. All of these changes became effective on August 1, 2013 and the Louisiana Legislature website already reflects these changes in the text. As always, your questions, comments, and observations in the comments are appreciated.

Leases in Louisiana

The civil code defines a “contract of lease” as a “synallagmatic contract by which one party, the lessor, bind himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay.

When you get swindled under Napoleonic code…

To outsiders our customs may be perceived as bizarre and our laws byzantine. Our state is divided by Parishes not Counties. We have neutral grounds not medians. And quite significantly, we govern by civil law not common law.

Intrinsic to a discussion of civil law is the topic of the Napoleonic Code. Its a dominating theme hammered into our collective consciousness. I still remember reading, and then watching A Streetcar Named Desire. The scene where Stanley Bekowski Kowalski (played by Marlon Brando) expresses what is his understanding of civil law:

“Now just let me enlighten you on a point or two… Now we got here in the state of Louisiana what’s known as the Napoleonic code. You see, now according to that, what belongs to the wife belongs to the husband also, and vice versa… It looks to me like you’ve been swindled baby. And when you get swindled under Napoleonic code, I get swindled too and I don’t like to get swindled…”

Except, this is not entirely the truth of the matter and legal theorist who read this discourse may be puzzled. Although seemingly innocuous, it is my opinion that statements such as the quote above, raise more questions than answers. Thereby, perpetuating the allure that surrounds our civil law system.

Does Louisiana have the Napoleonic code? No, but at one time it did. Does “what belongs to the wife belong to the husband, and vice versa”? Yes, Louisiana is among the 8+ community property states. However from a modern perspective Stanley has oversimplified the rule as it currently exists. And while the Napoleonic Code is a fun word to say, it is not the sole body of legal work that was the precursor to Louisiana law.

Much of Louisiana’s law is influenced by the Siete Partidas. Originally written between 1256-1265 the legal text is a compilation of laws, divided into seven parts.  Described as a “humanist encyclopedia” it addresses philosophical, theological, moral, and religious topics. Without expounding much further, there’s your history lesson for the day.