Personal Injury and the Louisiana Law of Lease

• Author: P. Ryan Plummer
• Position: J.D. candidate; Paul M. Hebert Law Center, Louisiana State University
• Pages: 177-195

Page177

J.D. candidate; Paul M. Hebert Law Center, Louisiana State University. The author would like to thank the venerable Dr. Saul Litvinoff for his invaluable guidance, spanning from the ideological formation of this paper to its conclusion. Special thanks also goes out to Mr. James Carter of the Louisiana Law Institute for generously providing materials and a non-judgmental ear. Finally, the author is forever indebted to his loving family, particularly his parents, for their unwavering support and determined leadership through all academic endeavors, without which no such accomplishment could have been possible.

Introduction: The Ballad Of Buddy Boudreaux

Meet Buddy Boudreaux. Buddy does not have an exciting job. He does not live in an eventful town. Buddy does, however, have a fishing camp. Like many other Louisianians, Buddy lives for the weekends. Every Friday, like clockwork, he makes an hour-long trip to Grand Isle to the modest quarters he rents along the Gulf shores. There, he fishes in the mornings, sleeps in the afternoons, and plays his mandolin at night. This routine has been the same for the past ten years, since Buddy started renting his cabin from his sister's on-again, off-again, boyfriend.

Buddy's routine was recently broken, however, by necessity, after a stair in front of his camp collapsed beneath him as he headed out for his morning excursion. A colony of Formosan termites moved in beneath Buddy's porch some months ago, and had slowly been feasting on the sweet, delicious pine of which the steps were constructed. The termites, having left only the shell of what had once been a well built stair case, were the only witnesses to Buddy's fateful fall, which sent him crashing through the stairs, flailing helplessly for something to grab a hold of, before he landed on the tree stumps below, nearly impaling himself with his Shakespeare TM fishing pole. Buddy has not been back to Grand Isle since. He has been laid up at home with a broken leg. The only thing uglier than his x-rays has been his disposition since the injury. Buddy's situation is entirely unenviable; he can not work, can not fish, and can not do half of the things he had for so long taken for granted as a fully mobile man. He is further agitated by an uneasy feeling that he may not gain any redress from his landlord, because a review of his lease agreement revealed that he had assumed liability from his lessor for the condition of the fishing camp. His situation is also frustrated by the fact that his sister is not talking to him anymore, since Buddy has found himself representation, and filed a hefty personal injury suit against her boyfriend.

Unfortunately, fact patterns like Buddy's illuminate inherent problems in Louisiana jurisprudence when personal injury collides with the law of lease. Causes of action for personal injury based in premises liability generally cause few problems to those adjudicating the issue. Once a contract of lease is introduced into the equation, however, some of Louisiana's legal warts are exposed.

Strict premises liability based in tort was eliminated eight years ago, yet, in certain circumstances, contractual strict liability remains.¹Page178 Public policy for the retention of one after the abrogation of the other is unclear. Clauses transferring premises liability from landlord to tenant are still common in lease agreements, yet the sporadic modification of tort and contract law in the Civil Code has nearly eliminated the utility of such clauses, and calls into question the contemporary efficacy of the Revised Statute allowing such transfers.²

The work that follows highlights those unsettled areas in the realm of personal injury and Louisiana law of lease, as well as the intrinsic tension between certain statutes governing causes of action that encompass both areas of law, and analyzes proposed legislation that could settle these problems. Part I specifically addresses the issues, and explains the historical course which has lead Louisiana law to its current state of consternation. Part II reviews the continued application of contractual strict liability since the abolition of its delictual brethren. Part III analyzes transfers of liability through lease agreements, and acknowledges their severely limited utility in light of the changing law around them. Finally, Part IV takes an abbreviated look at proposed revisions to the Civil Code Title on Lease written by the Louisiana Law Institute, and discusses the relative weight these revisions hold in settling this narrow, but disconcerted, area of our law.

IHow Did We Get Here?

Between 1975 and 1996, property owners within the state were held strictly liable for personal injuries caused by defects in their property, whether or not the owner knew or should have known of the damage-causing defect.³ In 1975, the landmark decision by the Louisiana Supreme Court in Loescher v. Parr⁴ "breathed the substantive life of strict liability into Article 2317,"⁵ and thereby imposed a hefty burden on landowners across the state to watch their collective backs. By virtue of Articles 670,⁶ 2317,⁷ and 2322⁸ of the Page179 Louisiana Civil Code of 1870, liability was strictly imposed upon the custodian of a thing when such thing caused damage to another, "despite the fact that no personal negligent act or inattention on the [custodian's] part [was] proved." Moreover, "[t]he liability [arose] from his legal relationship to the . . . thing whose . . . defect [created] an unreasonable risk of injuries to others."⁹

Strict liability was similarly imposed upon landowners who doubled as lessors, when defects in their property caused any of various injuries to tenants, by virtue of Article 2695 of the Civil Code.¹⁰ Like a plaintiff bringing a cause of action under Articles 670, 2317, and 2322, the injured tenant, suing under Article 2695, needed only to prove simple elements of causation to recover from his landlord, and could avoid completely the far more daunting task of proving negligence on the part of the lessor. With reference to Article 2695, it has been held that,

To recover under this article, the lessee must prove by a preponderance of the evidence that a defect existed on the premises, and that such defect was the cause of her damages or losses. The landlord's liability is not based upon his personal fault, but rather his status as a landlord; thus, liability attaches whether or not the landlord had knowledge of the defect.¹¹

Facing the prospect of potentially expensive liability, even without fault, savvy property owners and lessors frequently utilized a legislatively created shield for owner-lessor strict liability, in the Page180 form of "hold-harmless" clauses of lease contracts, allowed by Louisiana Revised Statutes 9:3221, through which the lessee absorbs the brunt of such liability.¹² Louisiana Revised Statutes 9:3221 was undoubtedly designed to relieve the owner-lessor of some of the burdens legally imposed on him in cases where he has turned all control throughout his property over to a tenant under a lease.¹³ By allowing owners to contractually defer a portion of their potential liability, Revised Statutes 9:3221 ostensibly promoted business within the state by encouraging property owners to enter into residential and commercial lease agreements, free of concern arising from the potential of liability for injuries they could not have prevented because of lack of knowledge of the defect causing such injuries. If a landowner was to worry constantly about the condition of all of his leased premises, despite having contractually assigned responsibility for their maintenance to his tenants, such vexation could very conceivably result in hesitancy on the part of that landowner to enter into certain lease agreements. Consequently, the owner would be forced to avoid leasing the property altogether, or drive up rental prices as a form of insurance meant to cover potential litigation and damages caused by defects in the property that he never knew of, nor had reason to know about. Such a result was clearly contrary to business interests of the state, and thus the Louisiana Legislature created Revised Statutes 9:3221 as a protection against strict liability in 1932.¹⁴

As a result, the owner-lessor of immovable property could rely on this exception to strict liability, provided the lessee: 1) assumed responsibility for the condition of the premises under contract of lease, 2) the injury occurred either to the lessee or anyone on the premises with the permission of the lessee, and 3) the owner did not know nor should have known of the defect.¹⁵

This final requirement signifies both the utility and the limitations of these agreements. While the lessee in such cases assumes liability for the condition of the premises, the owner-lessor's liability does not end there. The extent to which liability may be transferred is limited Page181 only to strict liability without fault. That is, the requirement that the owner neither knew nor should have known of the damage-causing defect of the premises (that he had neither actual nor constructive knowledge of its existence), practically means that the owner is still liable for negligent behavior. This type of negligence arises when the owner has been charged with knowledge of the defect and failed to rectify the situation in a reasonable time before the occurrence of the accident. Though limited in nature, hold-harmless clauses...