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The unfortunate truth is that children often put themselves in harms’ way due to their age. Any good parent has struggled with anxiety over this fact of life. When a minor child is involved in a personal injury case, they obviously lack the ability or authority to make decisions for themselves. As such, an adult will have to file suit on behalf the minor child in order hold the negligent party accountable. The adult who has authority to take action on the minor child’s behalf is considered the “tutor” in Louisiana.
TUTORSHIP BY NATURE
The most common scenario is when the mother or father are alive. This is typically referred to as “tutorship by nature”.
Louisiana Civil Code art. 250 lists the persons entitled to be deemed tutors “by nature”:
“Upon the death of either parent, the tutorship of minor children belongs of right to the other.”
“Upon divorce or judicial separation from bed and board of parents, the tutorship of each minor child belongs of right to the parent under whose care he or she has been placed or to whose care he or she has been entrusted; however, if the parents are awarded joint custody of a minor child, then the co-tutorship of the minor child shall belong to both parents, with equal authority, privileges, and responsibilities, unless modified by order of the court or by an agreement of the parents, approved by the court awarding joint custody.”
“In the event of the death of a parent to whom joint custody had been awarded, the tutorship of the minor children of the deceased belongs of right to the surviving parent.”
CHILDREN BORN OUTSIDE OF MARRIAGE
When a child is born outside of marriage, things can get trickier. Louisiana Civil Code art. 256 provides guidance:
Louisiana Civil Code art. 256 states that “the mother is of right the tutrix of her child born outside of marriage not acknowledged by the father, or acknowledged by him without her concurrence.“
SETTLING THE CASE
Even after the legal “tutor” has been determined, the parties involved will still have some hurdles to finalize a settlement. An enforceable settlement of a minor’s or incompetent’s claim requires court approval. La. Code. of Civil Pro. art. 4271. Specifically, a petition must be filed containing evidence of the settlement. La. Code. of Civil Pro. art. 4271 provides some guidance on how to accomplish and finalize the settlement. However, the average plaintiff in Louisiana should have competent legal counsel to assist in navigating through these requirements.
While there are certainly landlords in Louisiana who do not fulfill their obligations, tenants can also create great financial hardship and strain on landlords. Difficult tenants can cause damage to property, they can fail to pay rent, and they also can create dangers to the general public. If anybody gets injured as a result of a tenant’s actions, the landlord will surely have to raise legal defenses to protect themselves.
The good news for landlords is that Louisiana law makes it fairly easy to evict a tenant who is in violation of a lease agreement.
Louisiana Code of Civil Procedure art. 4701 relates to termination of a lease in the event of expiration or non-payment by the tenant. Specifically, Louisiana Code of Civil Procedure art. 4701 states that:
“When a lessee's right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, nonpayment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.
If the lease has no definite term, the notice required by law for its termination shall be considered as a notice to vacate under this Article. If the lease has a definite term, notice to vacate may be given not more than thirty days before the expiration of the term.”
Landlords should be very attentive to these “Notice to Vacate” requirements. Failure to follow these rules, may result in a delay, or even worse a wrongful eviction counter-suit. The lease may contain an express provision that waives the notice requirement which may make it easier for the landlord to move forward with an eviction. These notice requirements are also set forth in Louisiana Code of Civil Procedure art. 4702.
Many local Louisiana courthouses will have a handbook or information book for landlords seeking an eviction of a difficult tenant. The Clerk of Courts understand that many evictions are handled without the assistance of legal counsel. Considering this fact, landlords representing themselves should always call their local courthouse to see if there are any handbooks to assist in an eviction process.
If the tenant still does not vacate the premises after the Notice to Vacate is delivered, a “Rule for Possession” should be filed with the local Clerk of Court. Landlords should always notify the Clerk of Court of the amount of the rent to ensure they are in right court. For example, many city courts have jurisdictional limits of $3,000 on the monthly rent for commercial or residential properties. If the rent exceeds the jurisdictional limit, the landlord may need to file in their local District Court.
Finally, if the landlord is successful at the trial of the Rule for Possession, Louisiana Code of Civil Procedure art. 4732 states that:
“If the court finds the lessor or owner entitled to the relief sought, or if the lessee or occupant fails to answer or to appear at the trial, the court shall render immediately a judgment of eviction ordering the lessee or occupant to deliver possession of the premises to the lessor or owner.”
If the tenant has caused excessive damage to the property, the landlord may want to seek consultation with a local attorney to pursue all civil remedies, or even notify the local police department if the damage to the property was intentional.
Personal injury cases often involve an accident which occurred due to a dangerous condition in property (Ex: a collapsing ceiling in a rental property) which may be hidden. In the alternative, the dangerous condition may be open and obvious to all involved. In Louisiana, there has been an abundance of litigation involving accidents which occur on property owners’ premises.
Louisiana Civil Code art. 2322 provides guidance on this issue:
“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction.”
The article further indicates that such an owner “is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise reasonable care.” (Emphasis added).
Under this article the plaintiff may have to prove the following to build a successful case:
Ownership of the building;
The owner knew or, in the exercise of reasonable care, should of known of the ruin or defect;
The damage could have been prevented by the exercise of reasonable care;
A finding of negligence on the owner’s behalf is going to be an extremely fact -specific process that will rely on your specific circumstances. Did the owner know of the defect or hazardous condition? Should the owner have known about the hazardous condition? These are all questions which will need to be answered in order to establish a successful personal injury case against an owner of property based on premises liability.
If the property owner has insurance and a lawsuit is filed, the insurance company will have a wealth of defenses to utilize and explore in order to minimize or altogether dismiss the plaintiff’s claims. Premises liability cases can be particularly difficult from a plaintiff;s perspective. An immediate consultation with a local lawyer would be a wise decision for anyone injured by a “defect” in a property either hidden or open and obvious.
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