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Category: Property Rights

  • Legislation vs. Custom: Unpacking the Foundations of Louisiana Law

    Golden scales of justice balanced over a Louisiana state outline with law books and the State Capitol in the background, symbolizing the relationship between legislation and custom in Louisiana’s Civil Law systemThe Building Blocks of Justice: How Louisiana Laws Are Made

    Louisiana’s legal system is unique, drawing heavily from its Civil Code tradition. Unlike many other states that primarily rely on ‘common law’ (judge-made law), our system is rooted in comprehensive written statutes. But where do these rules come from, and how do we interpret them? Understanding the foundational principles of Louisiana law, as laid out in the Louisiana Civil Code, is key to knowing your rights and obligations.

    Legislation: The Primary Source of Our Laws (Louisiana Civil Code Article 2)

    When we talk about laws in Louisiana, we primarily refer to legislation. Civil Code Article 2 clearly defines legislation as “a solemn expression of legislative will.” In simple terms, this means the laws formally passed by our elected representatives in the Louisiana Legislature and signed by the Governor. These are the statutes, codes, and acts that govern everything from contracts and property to family matters and personal injury. They are written, publicly available, and intended to provide clear guidance for citizens and courts alike.

    The Role of Custom: An Important, But Secondary, Source (Louisiana Civil Code Article 1)

    While legislation is paramount, Civil Code Article 1 acknowledges another source of law: custom. But what exactly is a legal custom? It’s not just “how things have always been done.” Legally, a custom refers to practices that have been long-established, consistently observed, and widely accepted by the community as having the force of law. For a custom to be legally recognized, it usually needs to be reasonable, known, and consistent. Think of certain business practices or local traditions that, over time, become an unwritten rule that people generally follow and expect others to follow.

    When Legislation and Custom Meet: Legislation Always Prevails (Louisiana Civil Code Article 3)

    This brings us to a crucial point, brilliantly clarified by Louisiana Civil Code Article 3: “Customs may not abrogate legislation.” This short, powerful statement is incredibly important. It means that while customs can be a source of law, they can never override, repeal, or nullify a written law passed by the legislature. If there’s a specific statute on the books, no matter how widespread a custom might be, the legislation always takes precedence.

    For example, imagine a neighborhood where everyone has, for years, informally agreed to park their cars on the sidewalk on weekends. If a new city ordinance is passed explicitly prohibiting sidewalk parking, the long-standing custom of parking there would immediately be overridden by the new legislation. The custom, no matter how ingrained, cannot abrogate (cancel out) the written law.

    Why This Matters to You

    Understanding the hierarchy of legal sources in Louisiana is vital. It means that when you have a legal question or dispute, the first place to look is always to the written law – the legislation. Customs can offer context or fill in gaps where legislation is silent, but they can never contradict it. This principle ensures consistency, predictability, and fairness in our legal system, preventing uncertainty that could arise if unwritten traditions could simply undo formal laws.

    Need Legal Guidance? Contact Us Today.

    Navigating the intricacies of Louisiana law can be complex, even for seemingly straightforward situations. Whether you’re dealing with a contract dispute, property issue, or any other legal challenge, understanding how legislation and custom apply to your specific case is critical. Don’t rely on assumptions or “how things have always been done.” Our experienced legal team is here to provide clarity and protect your interests. Contact us today for a consultation to discuss your legal needs.

    Written by Berniard Law Firm

    Other Berniard Law Articles on the Louisiana Civil Code: The Two Pillars of Louisiana Law: Legislation & Custom Explained (CC Arts. 1-3)

    and The Foundations of Louisiana Law: Where Our Rules Come From

  • Stairway to Dismissal: Missed Deadline Leads to Summary Judgment in Injury Case

    This case focuses on the procedural aspects of a personal injury lawsuit, highlighting the importance of deadlines and the consequences of missing them.

    Case Background

    Charles and Jeri Kouba sued the City of Natchitoches after Mr. Kouba fell on a staircase owned by the city. They alleged a defect in the staircase caused his injuries. The City filed a motion for summary judgment, which the Koubas opposed. However, they missed the deadline to file their opposition and requested a continuance (postponement) of the hearing. The trial court denied their request and granted summary judgment in favor of the City.

    Motion to Continue

    The Koubas argued that they needed more time to gather evidence and expert opinions to oppose the summary judgment motion. However, the appeals court found no abuse of discretion in the trial court’s denial of their continuance request. Here’s why:

    • Missed Deadline: The Koubas missed the statutory deadline to file their opposition to the summary judgment motion.
    • Purpose of Continuance: The court explained that the purpose of allowing continuances in summary judgment proceedings is to give parties time to comply with deadlines, not to excuse missed deadlines.
    • Lack of Good Cause: The Koubas’ reason for missing the deadline was their attorney’s calendaring error, which the court did not consider a sufficient “good cause” for a continuance.

    Summary Judgment

    The court then reviewed the summary judgment ruling itself, applying the same standards as the trial court:

    • Burden of Proof: The City, as the moving party, had the burden to show that there was no genuine issue of material fact.
    • Premises Liability: In Louisiana, to hold a public entity liable for an injury on its property, a plaintiff must prove several elements, including that the property was defective, the defect posed an unreasonable risk of harm, and the entity had notice of the defect.
    • Lack of Evidence: The court found that the Koubas failed to present sufficient evidence to create a genuine issue of material fact regarding the City’s knowledge of any defect in the staircase.

    Exclusion of Evidence

    The Koubas also argued that the trial court erred in excluding photographs they attempted to introduce. However, the court found no error because the Koubas had missed the deadline to file these photographs with their opposition to the summary judgment.

    Key Takeaways

    • Deadlines Matter: Meeting procedural deadlines is crucial in legal proceedings. Failure to do so can have serious consequences.
    • Summary Judgment Standards: Summary judgment can be a powerful tool to resolve cases efficiently when there are no genuine factual disputes.
    • Premises Liability: Proving a premises liability claim against a public entity requires evidence of a defect, an unreasonable risk of harm, and the entity’s knowledge of the defect.

    Outcome

    The appeals court affirmed the trial court’s decision, upholding the denial of the continuance and the grant of summary judgment in favor of the City. This case underscores the importance of diligence in meeting procedural deadlines and the necessity of presenting sufficient evidence to survive a summary judgment motion.

  • Power Lines and Damaged Crops: Who Pays When Farming Meets Infrastructure?

    The following case revolves around the intersection of farming and infrastructure development, and the legal implications when construction activities impact agricultural land.

    Case Background

    Lanie Farms, a sugarcane and soybean farming operation, sued CLECO Power and its contractor, Highlines, for damages caused during the construction of new power lines across the farmland. Lanie Farms claimed that the construction activities damaged their crops and required costly remediation efforts. The trial court ruled in favor of Lanie Farms, awarding them $38,000 in damages. However, Lanie Farms appealed, arguing the award was insufficient. CLECO and Highlines also appealed, claiming the court should have dismissed the case.

    Legal Issues

    The case raised several key legal issues:

    • Measure of Damages: How should the damages to the crops be calculated – based on the gross value of the lost crops or the net value after deducting expenses?
    • Involuntary Dismissal: Did Lanie Farms present sufficient evidence to support their claims and avoid dismissal of their case?
    • Contractual Obligations: Did the servitude agreement between CLECO and the landowners create an obligation for CLECO to pay for damages to Lanie Farms’ crops?

    The Court’s Analysis

    The appeals court reviewed the evidence and addressed each of these issues:

    • Damages: The court acknowledged that while gross value is often used in pre-construction negotiations, this case was different. The court found that the net value, which accounts for expenses, was a more accurate reflection of the actual losses suffered by Lanie Farms.
    • Involuntary Dismissal: Although Lanie Farms primarily argued negligence, they also presented evidence of a contractual obligation by CLECO to pay for damages. The court found this sufficient to deny the motion for involuntary dismissal.
    • Contractual Obligations: The court confirmed that the servitude agreement created a “stipulation pour autrui” – a benefit for a third party (Lanie Farms). This meant CLECO was contractually obligated to compensate Lanie Farms for crop damage caused by their construction activities.

    Key Takeaways

    • Servitude Agreements: When granting servitudes for infrastructure development, landowners and lessees should carefully consider provisions for potential crop damage and ensure clear language regarding liability and compensation.
    • Expert Testimony: Expert witnesses play a crucial role in determining damages, especially in complex cases involving crop valuation and remediation costs.
    • Contractual vs. Negligence Claims: Even when negligence is alleged, the existence of a contractual obligation can significantly impact the outcome of a case.

    Outcome

    The appeals court affirmed the trial court’s decision, upholding the $38,000 damage award. This case demonstrates the importance of contractual agreements in determining liability for crop damage caused by infrastructure development. It also highlights the court’s discretion in assessing damages and the weight given to expert testimony.

  • Who’s Responsible When a Step Collapses?

    The following case deals with a common scenario: a guest gets injured at a business and sues, alleging negligence. But the legal outcome hinges on a crucial factor – whether the business owner knew or should have known about the dangerous condition that caused the injury.

    Case Summary

    Melanie Mark was injured when a wooden step on a cabin staircase collapsed at a KOA campground in Lafayette, Louisiana. She sued KOA, claiming they were negligent in maintaining the property. However, the trial court granted summary judgment in favor of KOA, finding that Ms. Mark failed to prove KOA had any knowledge of the defect in the stairs. Ms. Mark appealed this decision.

    Legal Principles

    The court’s decision revolved around Louisiana Civil Code Article 2317.1, which deals with premises liability. Here’s the key takeaway:

    Knowledge is Key: Property owners are only liable for injuries caused by defects if they knew, or should have known, about the defect and failed to exercise reasonable care to prevent the damage.
    The court also considered the duty of care owed by innkeepers to their guests:

    Innkeeper’s Duty: Innkeepers have a heightened duty to ensure their premises are safe and to warn guests of any hidden dangers. This includes conducting reasonable inspections.
    The Court’s Analysis

    The appeals court reviewed the evidence and found no indication that KOA knew or should have known about the rotten step. Here’s why:

    No Prior Complaints: KOA had no record of any prior complaints or issues with the stairs.
    Regular Maintenance and Inspections: KOA conducted regular maintenance and yearly inspections, and no defects were found.
    Hidden Defect: The rot was hidden on the underside of the step, making it difficult to detect even with a reasonable inspection.
    Plaintiff’s Own Testimony: Ms. Mark herself testified that the stairs appeared fine and safe when she used them before the accident.
    Based on this, the court concluded that KOA did not breach its duty of care and was not liable for Ms. Mark’s injuries.

    Important Considerations

    This case highlights some important aspects of premises liability law:

    Burden of Proof: The injured party bears the burden of proving the property owner’s knowledge of the defect.
    Constructive Knowledge: Even if the owner didn’t have actual knowledge, they can still be liable if they should have known about the defect through reasonable care.
    Hidden Defects: Liability is less likely when the defect is hidden and not readily discoverable.
    Outcome

    The appeals court affirmed the trial court’s decision, granting summary judgment in favor of KOA. This means Ms. Mark’s case was dismissed, and she was responsible for the costs of the appeal.

    This case serves as a reminder that proving negligence in premises liability cases requires demonstrating the property owner’s knowledge of the dangerous condition. When a defect is hidden and there’s no evidence the owner knew or should have known about it, it’s difficult to establish liability.

  • Can a Public Employee be Fired for Off-Duty Gambling?

    The Louisiana Court of Appeal recently reversed a decision of the Civil Service Commission (CSC) that upheld the termination of a public employee for gambling while off-duty. The case involving Carnell Collier, a Quality Assurance and Safety Inspector for the Sewerage and Water Board of New Orleans (S&WB), highlights the complexities of disciplinary actions for off-duty conduct, particularly when the conduct occurs on company property.

    Mr. Collier was fired after being caught gambling at a retirement party held on S&WB property. While the CSC initially upheld his termination, the Court of Appeal disagreed, finding that the punishment was too severe for the offense.

    Key Points of the Ruling:

    • Off-Duty Conduct and Termination: The court acknowledged that even off-duty conduct can be grounds for termination if it impairs public service efficiency. However, it emphasized that the severity of the discipline should be commensurate with the infraction.
    • Factors to Consider: The court considered several factors, including the nature of the offense, the employee’s work record, and past disciplinary history. In Collier’s case, the court noted his long and generally positive service record, the lack of a specific rule against gambling, and that other employees involved in the same incident were not disciplined.
    • Proportionality of Punishment: The court ultimately determined that termination was too harsh a penalty for Collier’s off-duty gambling. It reasoned that while the S&WB had a legitimate interest in promoting ethical conduct, the evidence did not support the conclusion that Collier’s actions significantly impaired the agency’s operations.

    Implications for Public Employees

    This ruling reminds us that even off-duty conduct can have consequences for public employees. However, it also highlights the importance of considering the context and severity of the misconduct when determining appropriate disciplinary action. Termination should generally be reserved for the most serious offenses or when an employee’s conduct severely undermines the public’s trust or the agency’s efficiency.

    Employer Takeaways:

    • Clear Policies: Employers should have clear policies regarding employee conduct, both on and off duty, and communicate these policies effectively to all employees.
    • Proportionate Discipline: When considering disciplinary action, employers should carefully weigh the severity of the offense, the employee’s work history, and any mitigating factors. Termination should be a last resort, reserved for the most severe infractions.
    • Consistency is Key: To avoid claims of arbitrariness, employers should strive for consistency in their disciplinary practices.

    The Collier decision emphasizes the importance of proportionality in disciplinary actions and the need to consider all relevant factors before terminating an employee. If you’re an employee facing disciplinary action or an employer navigating the complexities of employee discipline, seeking legal advice is crucial. An experienced employment lawyer can help you understand your rights and obligations and ensure that any disciplinary action is fair and justified.

    If you have questions about employment law or disciplinary actions in Louisiana, don’t hesitate to contact a reputable law firm specializing in employment law. They can provide the guidance and support you need to navigate these complex issues and protect your rights. Remember, understanding the law and seeking timely legal advice can make all the difference in achieving a fair and just outcome.

    Additional Sources: CARNELL COLLIER VERSUS SEWERAGE & WATER BOARD

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Employment Issues: Permanently Disabled Individual Not Acting Under Scope of Employment In Workers’ Compensation Case and Pregnancy as a Disability and Employment Discrimination: A Case Analysis

  • Employee Termination Upheld for Unauthorized Vehicle Use and Dishonesty

    Leotis Johnson, an employee of the Sewerage and Water Board of New Orleans (S&WB), was assigned a company vehicle equipped with a GPS. S&WB policy prohibited personal use of company vehicles without supervisor authorization. Johnson was accused of using the vehicle for personal errands during work hours and lying about his whereabouts when questioned.

    The Sewerage and Water Board of New Orleans dismissed Johnson due to unauthorized use of a company vehicle and non-compliance with established policies and procedures. Johnson challenged this decision and the Civil Service Commission’s supporting findings.

    The Court of Appeal Fourth Circuit upheld Johnson’s termination, stating that his actions constituted “cause” for termination as they were detrimental to the efficient operation of the S&WB. The court found that Johnson’s unauthorized use of the company vehicle for personal purposes during work hours was a clear violation of company policy. Additionally, his dishonesty in initially denying the allegations and providing false explanations further supported the termination.

    Key Takeaways

    1. Importance of Company Policies: Employers have the right to establish policies and procedures for using company property, including vehicles. Employees must adhere to these policies to avoid disciplinary action, including termination.

    2. Honesty is Crucial: When confronted with misconduct allegations, employees must be truthful. Dishonesty can be grounds for termination, especially when it obstructs an investigation or demonstrates a lack of trustworthiness.

    3. Burden of Proof: In cases of employee termination, the employer has the burden of proof to demonstrate that the employee’s actions were detrimental to the organization and justified the disciplinary action taken.

    4. Employee Rights: While employers have the right to discipline employees for cause, employees also have the right to appeal their termination through the Civil Service Commission. However, the Commission’s decision is given great deference and will only be overturned if it is arbitrary or capricious.

    This case reminds employees of the importance of adhering to company policies and being honest in the workplace. For employers, it highlights the need for clear policies and procedures and the importance of conducting thorough investigations when allegations of misconduct arise.

    Navigating the complexities of employment law and challenging a termination can be daunting. If you are in a similar situation where you believe your termination was unjust or the Civil Service Commission’s findings were erroneous, seeking legal advice is crucial. A knowledgeable employment lawyer can help you understand your rights, assess the strength of your case, and guide you through the appeals process. Don’t hesitate to contact a reputable law firm specializing in employment law to ensure your rights are protected and you receive the justice you deserve. Understanding your rights and taking timely action is essential to navigating employment disputes.

    Additional Sources: LEOTIS JOHNSON VERSUS SEWERAGE & WATER BOARD

    Written by Berniard Law Firm 

    Additional Berniard Law Firm Articles on Employment Issues: When one employee attacks a supervisor, can a supervisor proceed with a lawsuit against the employer?  and When Can an Employer be Held Responsible for Employee’s Wrongdoing?

  • The Road Less Licensed: Bosley’s Driving School Chronicles

    Buckle up your seatbelts and get ready for a wild ride through the twists and turns of Bosley’s Driving School saga! Meet Mr. Bosley, the daring entrepreneur behind this driving school extravaganza, with locations in the charming towns of Donaldsonville and Gonzales, Louisiana. Now, picture this: Mr. Bosley is on a mission to teach the art of driving, but not just any driving – he dreams of offering the elusive 38-hour driver’s education course. But, oh, the drama unfolds when his dreams clash with the stern rules and regulations of the Louisiana driver’s education system. Despite a denial that would make even the bravest soul reconsider, Mr. Bosley and his team continued their quest, issuing certificates left and right. Little did they know, the authorities were hot on their tail, leading to a showdown of epic proportions. Fast forward to courtroom battles, administrative hearings, and a rollercoaster of legal twists that could rival any Hollywood blockbuster. Will Mr. Bosley’s driving school dreams come crashing to a halt, or will he find a way to steer his way out of this legal maze? Strap in and find out!

    Mr. Bosley owns and runs Bosley’s Driving School for drivers’ education classes. The driving school has two locations—one in Donaldsonville and the other in Gonzales, Louisiana. The Donaldsonville location was licensed to teach 6 hours of classroom instruction, while the Gonzales location was licensed to teach the full 14-hour driver’s education course. Neither location was licensed to teach the 38-hour course. Louisiana offers two types of driver’s education courses: (1) A 14-hour course for individuals over eighteen, which requires 6 hours of classroom instruction and 8 hours of behind-the-wheel driving, and (2) a 38-hour course for individuals under eighteen, which requires 30 hours of classroom instruction and 8 hours of behind -the -wheel driving. La. R.S. 32:402. 1.

    In October 2012, Bosley applied for permission to instruct the 38-hour driver’s ed course. On December 10, 2012, Bosley was notified via email that their application was denied because they needed to meet the curriculum requirements. Regardless of this denial, Bosley continued to issue certificates of completion of the 38-hour course to several students. When the State learned of this, they sent Bosley an order to cease further operations as a driving school and third-party tester in Louisiana. On March 27, 2014, the State notified Bosley that because he was providing students with the 38-hour driver’s education course despite needing to be licensed, his licenses to teach the 6-hour and the 14-hour courses were rescinded. Bosley filed an appeal and requested a hearing. 

    On February 20, 2015, an administrative hearing was held. The State’s revocations were affirmed. The court agreed that Bosley had conducted the 30-hour classroom portion of the 38-hour course despite not being licensed. Bosley pursued judicial review of the decision by the district court. The State filed a motion to dismiss for a no cause of action, which the district court granted.

    Bosley filed a devolutive appeal of the district court’s decision on July 29, 2015. On April 27, 2016, the case was reversed and remanded back to the district court, finding that the district court should have ordered a hearing on the merits and the administrative record needed to be incorporated into the court’s record. In April 2017, the district court affirmed the administrative court’s decision again and dismissed the matter with prejudice. 

    On September 19, 2017, the State filed a motion and order to dismiss the appeal and alleged that Bosley failed to appeal the district court’s decision. The State argued that the deadline to appeal was July 5, 2017, but Bosley did not appeal until July 11, 2017.

    According to the Louisiana Code of Civil Procedure, Article 1974 “the delay for applying for a new trial is seven days, exclusive of legal holidays. The delay for applying for a new trial starts the day after the clerk mails it in, or the sheriff has been served, the notice of judgment.” 

    In this case, the district court mailed its notice of judgment on April 28, 2017. The deadline to apply for a new trial was May 9, 2017. The time to file a devolutive appeal expired on July 10, 2017. Bosley filed a motion for devolutive appeal on July 11, 2017. Because Bosley did not appeal within the available time, the appeal must be dismissed as untimely.

    In the end, the legal gears ground to a halt, leaving Bosley and his driving school dreams in the dust. Despite their persistence and determination, the unforgiving hand of time caught up with them, leading to the untimely dismissal of their appeal. The tale of Bosley’s Driving School serves as a cautionary reminder that even the most spirited endeavors can be derailed by the unyielding hands of bureaucracy. And so, the wheels of justice keep turning, leaving behind a trail of lessons for all those who dare to dream beyond the boundaries of the law. And with that, our thrilling journey through Bosley’s Driving School comes to an end, leaving us with a tale of ambition, struggle, and the relentless pursuit of the road less traveled.

    Additional Sources: Bosley’s Driving School and O’Neal versus Louisiana Department of Public Safety and Corrections

    Written by Berniard Law Firm Blog Writer: Needum Lekia

    Other Berniard Law Firm Articles on: Untimely Filing and Failure to Appeal Ends Lawsuit Against Kindred Hospital New Orleans

  • Worker Entitled To Unpaid Compensation Owed Him Under Contract

    One frequent use of contracts is to establish how much someone will be paid for specified work. Clear contractual language can help prevent disputes down the road. What happens if you do not receive all the compensation to which you are entitled under your contract?

    Clifton Franklin and Fountain Group Adjusters signed a contract where Franklin would provide Fountain with insurance adjusting services related to claims from Superstorm Sandy. The contract outlined how Franklin would be compensated by Fountain. Franklin claimed Fountain wanted him to sign a second contract because it could not find the first contract. While the second contract set Franklin’s compensation at 75% rather than the 65% in the initial contract, Franklin only asserted claims for the original 65% commission. 

    Claims One employed Franklin during this time. Fountain also signed a contract with Claims One. Although Franklin received some compensation from Fountain, he filed a lawsuit against Fountain, claiming he had not been fully compensation. 

    Franklin filed a summary judgment motion, arguing the contract between him and Fountain clearly established the compensation he was owed, and Fountain had not paid him the full amount. In its opposition, Fountain argued it was not liable to Franklin in light of its separate contract with Claims One. Fountain claimed it had paid Claims One the full amount due to Franklin, except for a 10% holdback until all audits had been completed, as was standard in the industry. 

    Fountain claimed Claims One was supposed to pay Franklin the full amount. The trial court denied Franklin’s summary judgment motion because it found there were genuine issues of material fact. Franklin then filed an appeal.

    The appellate court explained the proper resolution of Franklin’s summary judgment motion depended on the interpretation of the parties’ contracts. When a contract’s words are clear, a court cannot make an additional search to determine the parties’ intent. See La. C.C. art. 2046. 

    Franklin claimed the contract was clear and unambiguous about the amount of money Fountain owed him. Fountain claimed the method of payment was understood to be routed through Franklin’s employer, Claims One, as was standard in the industry. 

    To support his claim, Franklin submitted Requests for Admissions that Fountain had not answered, along with the applicable signed contracts. Because Fountain had not responded to the Requests for Admission, the trial court should have deemed them admitted. See St. Julien v. Landry. The contract Franklin submitted with his summary judgment motion, along with the requests for admissions, established the amount Fountain owed Franklin for his work. 

    Nothing in the contract or other evidence supported Fountain’s claim of how Franklin was supposed to be compensated. Therefore, the appellate court reversed the trial court’s denial of Franklin’s summary judgment motion and ruled in favor of Franklin for the issue of whether Fountain owed him unpaid commissions. However, the case was sent back to the trial court to determine the specific amount Fountain owed Franklin, because there was insufficient evidence to establish the sum owed to Franklin.

    A knowledgeable attorney can review a contract before you sign it to ensure it is clear and unambiguous, which can help prevent disputes down the road like the one Franklin found himself in with Fountain.

    Additional Sources: Clifton Franklin v. Fountain Group Adjusters LLC

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Commissions: Seeking Unpaid Wages in Louisiana: Clarifying Petition Requirements for Employees

  • Property Owners Barred From Interfering With Servitude

    One of the joys of owning property is dealing with potential property disputes. Such disputes can get especially complicated when they involve old surveys and records and promises from prior owners. This case illustrates the importance of doing due diligence before purchasing property so you understand which of your neighbors might have the right to use part of your property.

    This lawsuit involved multiple parcels of land located in Tangiphoa Parish, Louisiana. The Arnolds had previously owned all of the property at-issue. There was a right of way and road constructed by the early 1960s, which was marked by signs. An apparent servitude is perceivable by signs or constructions such as a roadway. See La. C.C. art. 707. The Arnold family and their tenants had regularly used the route since then. 

    The Aikmans, who owned some of the at-issue land, filed a lawsuit against the Naramores, who owned another parcel of land. The Aikmans claimed there was no servitude, so the Naramores could not use the road to access their property. At trial, there were over twenty witnesses, including multiple experts. The parties also presented exhibits, surveys, and maps. The trial court held the Aikmans could not interfere with the use of the passage, relying on La. C.C. art. 741, which governs the creation of servitudes. The Aikmans filed an appeal. 

    On appeal, the Aikmans argued the public records did not sufficiently establish that a servitude existed before they had acquired the property. The appellate court explained that when the Arnold family owned all the land, there was no servitude, because you cannot have a servitude on your own property. When they split the estate, and the land became owned by different people, an apparent servitude would have been formed unless the Arnolds had explicitly disavowed it. 

    None of the multitude of evidence presented at trial suggested the Arnolds had explicitly disavowed the servitude when they conveyed the parcels to different owners. Rather, the acts of conveyance explicitly recognized and described the servitude, which was also displayed on old surveys. Although the servitude was not recorded, the appellate court rejected the argument that the mere fact the survey was not recorded meant the servitude had been disavowed. 

    Additionally, the Aikmans argued the court should not recognize the servitude because Naramores could access their property through another route that did not use the servitude and would therefore not burden their property. The appellate court rejected this argument, explaining La. C.C. art. 689, which governs enclosed estates, did not require that the Naramores’  was landlocked in order for there to be a servitude. Therefore, the appellate court agreed with the trial court’s ruling the Aikmans could not interfere with the servitude. 

    If you are considering purchasing property, it is a good idea to consult with an attorney, who can help you review the applicable property records and advise you on possible property disputes that might arise. And if you are already involved in a property dispute, a good attorney can advise you on your rights. 

    Additional Sources: Jerelean Arnold Naramore et al. v. Baynum and Kayla Aikman

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Property Disputes: When Present Interests Conflict with Past Laws: Property Disputes Between the Usufruct and the Naked Owner

  • Can a business be liable if a patron slips and falls on a wet walkway?

    Lawsuits involving slip and fall accidents are widespread. However, specific requirements must be satisfied to prevail in a slip-and-fall case. The following lawsuit helps answer the question: Can a business be held liable if a patron slips and falls on a wet walkway? 

    While walking with her son in the Treasure Chest Casino parking lot, Linda Cangelosi slipped and fell under the outdoor tent that covered part of the walkway entrance into the casino. Cangelosi slipped while stepping from the roadway to the walkway. At the time of her fall, the ground was wet, with puddles. After he fell, employees of Treasure Chest Casino assisted Cangelosi and called an emergency team. Cangelosi declined their offer to transport her to the hospital and continued to the casino. However, about 45 minutes later, she left because her hip hurt. She consulted with a doctor, who provided her with pain medication. Since the accident, Cangelosi had to use a walker and has been in pain. Cangelosi filed a lawsuit against Treasure Chest Casino. Both Cangelosi and Treasure Chest Casino filed motions for summary judgment. The trial court granted Treasure Chest Casino’s summary judgment motion. Cangelosi appealed. 

    Under La. C.C. art. 2317, the owner of a thing is liable for damage if they knew or should have known about the defect that causes damage, which could have been prevented if the owner had exercised reasonable care. Further, under La. C.C. art. 2322, this also applies to building owners. Therefore, if Cangelosi provided sufficient evidence that Treasure Chest Casino knew or should have known about the wet walkway that caused her slip and did not act reasonably, she could prevail in her lawsuit.

    On appeal, Cangelosi argued the casino’s walkway was unreasonably dangerous and defective, which resulted in her fall. She claimed there was a hazardous condition from the passing vehicles and improper drainage. She claimed her allegation there were all kinds of debris and liquids was sufficient to establish there was a hazardous condition. Treasure Chest Casino countered Cangelosi did not provide sufficient evidence to prove there was an unreasonable dangerous condition they failed to warn patrons about. Treasure Chest Casino specifically pointed to a non-skid product it used on its walkways.

    Additionally, Cangelosi and her son testified they knew the ground was wet because it had rained most of the day. A video of Cangelosi’s fall showed she stepped directly into a puddle, which the appellate court explained was an obvious hazard. Thus, Treasure Chest Casino had adequately supported its summary judgment motion with evidence its walk was not defective. In contrast, Cangelosi had not provided evidence of an unreasonably dangerous condition that caused her fall. Therefore, the appellate court agreed with the trial court’s grant of Treasure Chest Casino’s summary judgment motion because there were no disputes of material facts. 

    This case at the Treasure Chest Casino highlights the importance of establishing liability in such incidents. While Cangelosi argued that the casino’s walkway was unreasonably dangerous and defective, the appellate court ultimately found that she had not provided sufficient evidence to support her claim. The court’s decision underscored the importance of addressing the presence of clear hazards and the responsibility of business owners to ensure a safe environment for patrons. If you find yourself in a similar situation, seeking legal counsel is crucial to understanding your potential for success in a lawsuit against the establishment.

    Additional Sources: Linda Cangelosi v. Treasure Chest Casino, LLC

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Slip and Fall Accidents: Slip and Fall in Louisiana Convenience Store Lawsuit Discusses Open and Obvious Risk