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.

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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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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.

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.

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.

Forming a corporation, LLC, and other business entities.

Forming a Louisiana business entity is pretty straightforward. The secretary of state website is very useful and contains all of the forms necessary to get your corporation, partnership, or LLC up to the proper legal status. Years ago these were things that only attorneys could do. Now, anyone with an internet connection can go to this link, fill out the proper forms, send the money, and you are now an official Louisiana business entity. All the forms you would every need for setting up your business can be found here.

Now you know where to go to create a business without consulting an attorney or an accountant. For most solo, or small family business entities without shareholders or stock value this remains a convenient and low cost way to do these things yourself . Obviously, I would encourage consulting a professional if you have any uncertainty or for more complex businesses. Much like a will, a lawyer can analyze your specific situation and do his or her best to avoid future complications.