Failure to Properly Serve a Personal Injury Lawsuit Does Not Require Dismissal, Louisiana First Circuit Court Rules

In a recent Louisiana First Circuit Court of Appeals ruling, a plaintiff successfully appealed an earlier dismissal of his case for failure to properly serve all of the correct parties.

After Hurricane Gustav, Mr, Preston was working on the Southern University campus removing debris, including trimming tree branches, when he slipped and fell into a hole in the ground. He sustained injuries and sued Southern University for negligence, claiming that the campus allowed an unreasonably dangerous condition to exist and it failed to warn him of the dangerous condition.

Under a Louisiana statute (La. R.S. 13:5107), when a plaintiff sues the State of Louisiana or a state agency, he must serve the Louisiana attorney general and the head of the agency. Furthermore, if the suit is a personal injury lawsuit (tort lawsuit), the Office of Risk Management must be notified and served as well, according to La. R.S. 39:1538.

Southern University asserted that although the lawsuit was properly served on the attorney general, it was not served on the head of the department and of the Office of Risk Management, as required by statute. It also asserted that the complaint was too vague because it failed to name the specific parish, state, or location of the Southern University campus where the incident took place. It asked that the plaintiff be required to properly serve all the parties and to amend his complaint to add more specificity.

Mr. Preston amended the complaint, which cured the vagueness defect, but he still failed to serve the head of the department and the Office of Risk Management. His case was then dismissed, but he appealed the dismissal. Southern University claimed that an earlier case, Burnett v. James Construction Group, rendered the appealed issue moot and asked that the case be remanded back down to the trial court. In Burnett, the Louisiana Supreme Court decided that under La. R.S. 39:1538, a dismissal of the case was not required even if the plaintiff had failed to properly serve all of the parties necessary. The First Circuit Court of Appeals ruled that because of the Burnett case, Mr. Preston was entitled to more time to serve the proper parties; Southern University was not entitled to dismissal of the case until Mr. Preston was given an appropriate amount of time in which to serve the lawsuit and failed to do so.

Even in a chaotic environment, this case demonstrates that proper action by an attorney in a filing, as well as careful detailing in a lawsuit, are inherently necessary. If you have suffered a personal injury and need to make sure the lawsuit is done correctly, contact a lawyer at our firm today.