105 So. 3d 1068
La. Ct. App.2013Background
- Wrongful death and survival action arising from Gordon Serou, Sr.'s death at a New Orleans hospital after Hurricane Katrina; plaintiffs are his widow Judy Serou and three adult children.
- Defendants: SHONO (hospital unit), Touro Infirmary (landlord/owner), Aggreko (emergency generator services contractor).
- Claims are tort (premises liability) arising from two contracts: Lease and Services Agreement (Touro→SHONO) and Hurricane Contingency Plan Agreement (HCPA) with Aggreko.
- District court allocated 70% fault to SHONO, 30% to Touro, 0% to Aggreko; damages total $1,150,000 to four Serou plaintiffs; Touro’s indemnity cross-claim against Aggreko was dismissed.
- Aggreko cross-claims remained; trial proceeded on premises liability claims; district court later granted Aggreko’s summary judgment on indemnity cross-claim, which this court reversed and remanded; overall judgment affirmed in part, reversed in part, and remanded.
- Dissent (Ledet, J.) argues causation was not proven and would reverse damages.
- The appellate court ultimately affirms the principal demand against Touro, reverses the indemnity dismissal against Aggreko, and remands for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty owed by Touro to Serou/SHONO | Serou relied on contractual duties to provide safe environment and adequate climate control. | Touro's duty was only as lessee; no independent duty to Serou; JACH precedent applies. | Duty found; interlaced contractual obligations and independent duty to provide safe environment recognized. |
| Causation of Serou’s death | Evidence showed hyperthermia as cause; Dr. Tedesco’s hurricane note and deposition support causation. | Medical causation not established; three physicians testified against heat causation. | Causation supported; trial court not manifestly erroneous in finding heat-related death. |
| Allocation of fault | SHONO and hospital failures caused unsafe environment; fault should reflect contract duties. | Fault distribution supported by trial findings; not clearly wrong. | Appellate court affirmed fault allocation: SHONO 70%, Touro 30%, Aggreko 0%. |
| Damages | Wrongful death and survival damages were reasonable given relationships and care provided. | Awards excessive; not supported by evidence. | Damages not an abuse of discretion; affirmed in amount. |
| Aggreko indemnification cross-claim | Indemnity claim supported by HCPA; Aggreko caused damages via faulty generator fuel. | Ambiguities in causation; summary judgment appropriate. | Reverse summary judgment; indemnity issue remanded for trial; moot after reversal on principal demand. |
Key Cases Cited
- LaCoste v. Pendleton Methodist Hosp., L.L.C., 966 So.2d 519 (La. 2007) (failure to provide emergency power not per se medical malpractice; duty analysis central)
- Gibson v. Bossier City General Hospital, 594 So.2d 1382 (La.App. 2nd Cir. 1991) (hospital owes care to patients within facility; premises duty extended to patient safety)
- JCAHO standards discussion (not a case), (La. App. 4 Cir. discussion) () (emergency planning standards; hazard vulnerability analysis; HVAC/ventilation concepts discussed through expert testimony)
- Housley v. Cerise, 579 So.2d 973 (La. 1991) (Housley presumption for causation in medical-related injuries; rebuttable)
- Williams v. Stewart, 46 So.3d 266 (La. App. 4 Cir. 2010) (application of Housley presumption; causation burden; precedent relevance)