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Adams and Reese attorneys Taylor Brett and Evan Gaudet are published in Volume 84, Issue 3, the current edition of the Louisiana Law Review, the state’s flagship legal journal since 1938, and a forum for scholarship in comparative and civil law topics.

Brett wrote “Back to the Drawing Board: A Recap of the 2023 Legislative Amendments to Article 966 of the Louisiana Code of Civil Procedure.”

During the 2023 Regular Session, Governor John Bel Edwards signed into law Acts Nos. 3171 and 368. These acts, which became effective August 1, 2023, amended several provisions in article 966 of the Louisiana Code of Civil Procedure regarding motions for summary judgment in Louisiana’s state court system.

These were the Louisiana legislature’s first changes to the article in eight years, the last changes enacted through Act No. 422 of the 2015 Regular Session. These changes were principally designed to fix some of the practical issues and confusion that had developed in the courts after the 2015 amendments took effect.

Brett discusses how, overall, these were positive changes: in particular, how the new provisions:

  • allow parties to reference previously filed documents in lieu of re-filing everything;
  • allow courts to consider previously filed record evidence referenced by the parties;
  • require email service for motions, oppositions, and replies; and
  • provide guidance for resolving challenges to expert evidence attached to motions and oppositions.

Still, the 2023 amendments did not overhaul everything from the prior version of the article. Some of the key provisions that remain include the prohibition of additional evidence with reply memoranda, the procedure for lodging objections to another party’s summary judgment evidence, and all the court-specific deadlines.

Because these provisions did not change, particularly the requirements for serving “notice of the hearing date” in article 966(C)(1)(b), the debate over their proper interpretation and continued efficacy will certainly persist; that is, until the next time that the legislature considers amending the rules governing summary judgment procedure in our state court system.

Gaudet wrote “How a Correct Reading of Louisiana’s Comparative Fault Articles Will Spell Disaster for Louisiana Employers.”

In Martin v. Thomas, the Louisiana Supreme Court dramatically changed how employers will defend against vicarious liability and direct negligence claims. A plaintiff who is injured by a negligent employee will assert three claims. First, the plaintiff will sue the employee for his or her own negligence. Second, the plaintiff will sue the employer, who is vicariously liable for its employee’s negligence. Third, the plaintiff will sue the employer for negligently supervising, training, hiring, retaining, or entrusting its employee, which is sometimes referred to as a direct negligence claim.

Before the Louisiana Supreme Court decided Martin, employers avoided direct negligence claims under the stipulation rule, which provided that a plaintiff could not maintain a direct negligence claim against an employer who stipulated that its employee was acting within the course and scope of employment. However, in Martin, the Louisiana Supreme Court correctly held that the stipulation rule was incompatible with Louisiana’s comparative fault regime. Indeed, because it is possible that both the employer and the employee may have caused or contributed to the plaintiff’s injury, Louisiana’s comparative fault regime would be undermined if an employer could escape liability by stipulating to course and scope.

Although the Martin court reached the right conclusion, this decision will dramatically change how employers will defend against vicarious liability and direct negligence claims due to the increased risk of jury confusion and prejudice at trial. Indeed, when a plaintiff sues an employer for direct negligence and vicarious liability in the same lawsuit, evidence that is probative of the direct negligence claim will prejudice the employer’s defense of the vicarious liability claim by causing jury confusion.

Gaudet writes that Louisiana legislature must adopt a new law that:

  • allows plaintiffs to assert viable direct negligence claims;
  • protects employers from jury confusion and prejudice at trial; and
  • preserves Louisiana’s comparative fault regime.

Gaudet suggests that the Louisiana legislature could achieve each of these goals by simply adopting Federal Rule of Civil Procedure 42(b). Adoption of Rule 42(b) is necessary because, without it, employers will face considerable risk of jury confusion and prejudice at trial.