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Failure To Prove Contractor's Immunity Under La. R.S. 9:2771
When The Plaintiff's Burden Has Not Been Met Should Not Preclude Dismissal Of the Plaintiff's Claim: The First Circuit's Decision In Kennedy v. Louisiana Maintenance Specialties

By Teresa L. Fiore Hatfield, Esq.
Contractor's immunity is a defense.[1] If proven, contractor's immunity is sufficient to beat a claim for a plaintiff has sustained his or her burden of proof. But, doubt or a genuine issue as to whether a contractor is immune from liability should not serve to preclude judgment in favor of the contractor when plaintiff has not sustained his or her burden of proof.

A recent Louisiana decision has made clear that when plaintiff has not sustained her burden of proof, an issue as to contractor's immunity will not preclude judgment in favor of a defendant. In Kennedy v. Louisiana Maintenance Specialties,[2] plaintiff, Kennedy, hired a contractor to construct a metal building. Plaintiff had retained an architect to design plaintiff's home and contractor was intended to follow the architect's plans and specifications. The building flooded, and plaintiff sued the contractor claiming that the contractor was at fault. At the close of plaintiff's case, defendant moved for involuntary dismissal. The court granted involuntary dismissal based on the fact that plaintiff failed to meet its burden of proof. The Court stated, in pertinent part: "A contractor's liability is not strict or absolute, nor it is to be presumed from the mere fact that a building develops structural problems after construction is completed."[3] Plaintiff appealed the trial court's ruling, arguing, in pertinent part, that the Court erred in failing to place the burden of proof on the defendant to show it had complied with plans and specifications to be entitled to contractor's immunity under La. R.S. 9:2771. The Appellate Court upheld the involuntary dismissal, and clearly delineated the plaintiff's burden to prove his case was sufficient to relieve the defendant of liability, with or without contractor's immunity. The Court stated:

We find this argument unpersuasive. To reiterate, the standard governing a motion for involuntary dismissal entails determining whether the plaintiff has presented evidence to prove his claim by a preponderance of the evidence. Hence, plaintiff had the burden of proving by a preponderance of the evidence that the defendant breached its contract to perform in a workmanlike manner. The trial court concluded that he had not.

It is only when a plaintiff has satisfied this burden that a contractor need resort to the contractor's immunity defense under LSA- R.S. 9:2771 in an effort to escape liability that otherwise would be imposed.[4] (Emphasis is the Court's).

The Louisiana Supreme Court denied writs in the Kennedy v. Louisiana Maintenance Specialties, on May 30, 2008.[5]

The Kennedy case irrefutably holds that judgment should be granted in the contractor's favor when the only dispute is to whether contractor's immunity has been met.
[1] Kennedy v. Louisiana Maintenance Specialties, Inc., 2007 CA 0506, p.6 (La.App. 1 Cir. 12/28/07); Smith v. Xerox Corporation, 866 F.2d 135 (5th Cir. 1989).

[2] 2007 CA 0506 (La.App. 1 Cir. 12/28/07).

[3] 2007 CA 0506, p. 6 (La.App. 1 Cir. 12/28/07), citing, Harris v. Williams, 28512-CA (La.App. 2 Cir. 8/23/96), 679 So.2d 990.

[4] Kennedy v. Louisiana Maintenance Specialties, Inc., 2007 CA 0506, pp.6-7 (La.App. 1 Cir. 12/28/07).

[5] Kennedy v. Louisiana Maintenance Specialties, Inc., 2008-C-0656 (La. 5/30/08), 983 So.2d 897.