Articles Posted in Civil Matter

In the late evening of May 28, 2006, Grant Lee Williams and his girlfriend, Lisa Lobrano, visited the Saddle Ridge Bar at the Louisiana Boardwalk in Bossier Parish. Also at the establishment was Michael Moore, who at one point approached the bar where Lobrano was sitting and tried to pick her up. Williams observed that Moore inappropriately touched Lobrano and hurried over to fend him off. Williams told Moore that he was Lobrano’s boyfriend and warned him to leave her alone. After this exchange, Williams and Moore turned together toward the exit and within a moment, Moore struck Williams in the face. Williams, having sustained multiple fractures to his face and a broken nose, sued Moore for battery.

Much conflicting evidence was presented at the bench trial. Lobrano testified that she did not see either man hit the other, but that as she got up from the bar she turned to see Williams with blood on his face before he fell onto the floor. At that point, according to Lobrano, Moore kicked Williams several times in the ribs. Williams admitted in testimony that he may have pushed or bumped Moore as they walked away from the bar, but that he was blindsided by Moore’s punches. Williams also testified that Moore kicked him in the ribs after he fell to the floor. Moore denied ever touching Lobrano and testified that Williams approached him at the bar, pushed him, and then punched him in the eye. Moore explained that he swung at Williams and admitted he must have hit Williams since it was clear that Williams was injured. Several other bystanders offered testimony, but none saw exactly who threw the first punch.

The trial judge did not determine who hit first, but found that both Williams and Moore were equally at fault for the altercation. The judge awarded Williams general damages in the amount of $40,000 and $30,901 for medical costs, but reduced the total award by half in light of Williams’s own fault.

As most motorists are aware, Louisiana law requires that the driver of a vehicle involved in an accident must stop the vehicle at the scene, give his or her identity, and provide reasonable aid to anyone who may be injured as a result of the crash. La. R.S. 14:100. The failure to do so is often called a “hit and run” accident, and in many cases the accident victim has no way to track down the fleeing driver.

In Louisiana Farm Bureau Casualty Insurance Co. v. Hayden, No. 2010-CA-0015 (La. App. 4th Cir. 2010), the witness to a hit-and-run collision played a critical role in the resolution of the case. On February 18, 2007, William Dunham was driving his car in New Orleans near the intersection of Howard Avenue and Loyola Avenue. A silver Ford Taurus ran the red light at the intersection and hit Dunham’s car broadside. The driver of the Taurus continued on and fled the scene. Orelia Jones, who was riding in her sister’s car, happened to see the collision. Jones and her sister followed the Taurus until Jones was able to write down the car’s license plate number. She then returned to the scene of the accident and shared her information with the police.

The police traced the license plate number provided by Jones to a 2003 Ford Taurus owned by Amy Lips Hayden of Mandeville. Dunham’s insurance company, Louisiana Farm Bureau, sued Hayden for the damage to Dunham’s car in the accident.

Several prior posts have examined the critical role that expert witnesses can play in a personal injury lawsuit. The Peoples v. Fred’s Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010) case offers a similar example of how expert testimony can be invaluable to a plaintiff. (For a brief background on this case, please see Part 1 of this post series.)

In addition to the dispute over notice, Fred’s Store’s appeal also challenged the trial judge’s admission of testimony by Peoples’s expert witness, Michael Frenzel. Frenzel was a board-certified safety professional who owned a company that offered safety program mangement services. At the time of the trial, he had 35 years of experience in the safety field. Prior to the trial, Frenzel reviewed the accident report, photos of the accident scene, and a diagram of the store. He also personally visited the Fred’s Store in Tioga to view the premises. Frenzel testified that the two gazebo boxes that Peoples tripped over “amounted to a trip hazard that presented an unacceptable level of risk to Fred’s customers.” He explained that, regardless of their precise location, two boxes laying flat on the floor would pose a risk to a customer entering the store given that the customer’s attention would likely be drawn to the other merchandise. This was especially the case, according to Frenzel, because the boxes were white in color and had a low profile against the white background of the floor. Frenzel further referenced the “universal, industry-wide standard minimum height recommended for floor displays to prevent tripping hazards,” and even identified a section in the store’s own safety manual that addressed tripping hazards. Finally, Frenzel testified that in his opinion Peoples “did nothing wrong,” and that “only Fred’s could have taken corrective action in this situation.”

Fred’s Store sought to exclude Frenzel’s damning testimony on the basis that he was not an eyewitness to the fall and therefore could not contribute to the resolution of any issues of fact. Also, Fred’s Store argued that expert testimony is not necessary in a trip and fall case. The Court of Appeals cited Louisiana Code of Evidence Article 702, which provides:

In a previous post, we explored the elements of a negligence action that arose after a customer slipped and fell on a pool of vomit left by another customer while visiting a store in Farmerville. One of those elements is “notice,” or whether the merchant created or was aware of the unsafe condition that caused the plaintiff’s injury. In the Farmerville case, the plaintiff was unable to show that the store owner had notice of the vomit on the floor that caused her fall, and so her suit was not successful.

The recent case of Peoples v. Fred’s Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010), illustrates how the plaintiff’s ability to prove notice can result in a different outcome. On August 10, 2004, Virginia Peoples and her husband, Wyndell, entered the Fred’s Store in Tioga. Upon passing through the entranceway, Peoples tripped over some boxes laying on the floor just inside the door which extended into the walkway. The boxes contained gazebos that were part of a clearance sale. Peoples fell forward into a display of stacked coolers, where she hit her chin before landing on the concrete floor. Pain in her neck and right wrist, shoulder, and arm prompted her to go to the emergency room at LaSalle General Hospital, where she was diagnosed with a pinched nerve and a radicular neck injury.

Peoples sued Fred’s Store for negligence, a bench trial was held, and Peoples was awarded nearly $200,000 in damages. Fred’s Store appealed, arguing, among other things, that the trial judge improperly concluded that Fred’s Store had notice of the improperly placed boxes that caused Peoples’s fall.

A recent decision from the Louisiana Court of Appeals provides insight into precisely what a medical provider must get from a patient in order to create the presumption that they consented to medical treatment under Louisiana law.

This litigation arose from a procedure performed at St. Patrick Hospital in Lake Charles. Dr. Charles Humphries, a family practitioner, performed a colonoscopy on James J. Price, IV. Dr. Humphries detected several polyps in Mr. Price’s colon during the procedure and immediately aborted the procedure and had a gastroenterologist, Dr. Francis Bride, surgically excise the polyps–removing three of four of them without incident. During the removal of the fourth, the electrocautery snare being used malfunctioned causing a deeper burn of the colon that was desired. Dr. Bride visually inspected the area to rule out the possibility of an acute perforation of the colon. Dr. Bride did not see a perforation but ordered abdominal x-rays to confirm his lack of suspicion, with x-rays negative for any danger signs. Mr. Price’s stay was extended to rule out a perforation, and he was released to go home.

The next day, Mr. Price began to experience symptoms of a perforation and was directed by Dr. Humphries to go the ER at St. Patrick’s hospital. Mr. Price was prescribed antibiotics in hopes that the perforation would seal on its own. When this didn’t work, surgery was required.

For any medical procedure, a doctor or other practitioner is required to obtain “informed consent” from the patient. Essentially, this means that, except in certain emergency situations, a doctor is not permitted to perform any medical procedures that the patient has not authorized him to perform. Louisiana law outlines three ways for a doctor to get proper consent from a patient. First, the patient can acknowledge in a handwritten document that he or she had been informed of “The nature and purpose of the procedure” and of its “known risks,” and that he or she had the opportunity to have any questions “answered in a satisfactory manner.” La. R.S. 40:1299.40(A). Such consent is presumed under the law to be valid unless there is proof that the consent was given because the doctor misrepresented material facts.

The second option for obtaining consent requires the same elements as the first, with the exception that it does not have to be in writing. However, verbal consent is not given a presumption of valididty, but instead must be proved “according to the rules of evidence in ordinary cases.” La. R.S. 40:1299.40(C). The third and final option requires a doctor to disclose to the patient the list of risks for the proposed treatment that is maintained by the Louisiana Medical Disclosure Panel (LMDP). “Consent to medical care that appears on the [LMDP’s] list requiring disclosure shall be considered effective under [Louisiana law] if it is given in writing, [and] signed by the patient… and a competent witness. La. R.S. 40:1299.40(E). The LMDP offers a form for this purpose, the execution of which creates a “rebuttable presumption” that the consent is valid, provided that the doctor who will actually perform the treatment is the one who gives the required disclosure.

The issue of informed consent was at the center of the case Price v. ERBE USA, Inc., No. CA 09-1076 (La. Ct. App. 3d Cir, 2010). The plaintiff, James J. Price, visited the St. Patrick Hospital in Lake Charles on January 17, 2002, where he was scheduled for a colonoscopy procedure with Dr. Charles Humphries. During the procedure, Dr. Humphries found several polyps in Price’s colon, at which point he brought in Dr. Francis Bride, a gastroenterologist, to remove them. Dr. Bride’s surgical tool malfunctioned during the removal of one of the polyps, which resulted in an inadvertent burn to the wall of Price’s colon. Dr. Bride conducted extensive tests to detect a colon perforation and concluded none had occurred. Still, Dr. Bride ordered Price to remain in the hospital for an extended period that day for more monitoring, after which he released Price to go home. The next day, Price began to experience symptoms of a perforation. He returned to the emergency room at St. Patrick’s, and two days later underwent surgery to repair the perforation. Price later filed suit against Dr. Humphries and Dr. Bride, alleging a lack of consent for the polypectomy. At trial, a jury found for the doctors, and Price appealed.

Jeanine Pryor of Lake Charles was injured when she fell exiting bleachers at a football came and filed a claim for damages due to injuries she sustained. Her claim was denied at the trial court level and in a recent decision, the Louisiana Third Circuit Court of Appeals reversed the trial court and awarded Ms. Pryor a significant damage award (over $500,000), even after reducing her damages by 30% due to a finding that she was partially at fault for the accident.

Ms. Pryor, of Lake Charles, went to New Iberia to watch her grandson’s team play a playoff football game at Lloyd G. Porter Stadium. The facility is owned by the Iberia Parish School Board. Spectators at the field sit on either west or east side spectator seating. According to reports the west side, where home team fans sit, is a much nicer facility made of concrete that sits well off the ground and has ramps leading to the seats. The east side of the field, where visiting teams traditionally sit, contains metal frame bleachers with wood seat boards and foot boards and rails around the rear and upper portions. The bleachers have no aisles for walking up into the stands or rails to help someone walking up rows.

When she arrived at the stadium, the 69 year old Ms. Pryor walked to the visitor side of the stadium, balancing on the uneven ground with her daughter’s help. Because the players and cheerleaders standing on the sidelines blocked the view of the game from the bottom rows, Ms. Pryor needed to climb up into the stands. Because she could not step up the eighteen inches from the first board to the second she had to grab the second board and lay on her side to swing up her legs one at a time. During halftime, Ms. Pryor needed to use the restroom so, again, with her daughter’s help, she walked down the bleachers. When she came to the second seat board, she stepped down slowly the extended distance to reach the first board and fell back. She dropped her daughters hand and suffered a broken leg and other injuries.

Sometimes one plus one does not equal two. This was a lesson learned by the Living Epistle Church after a suit against the City of Shreveport. The church sued the city for damages to its sanctuary building, which was allegedly caused by a leaking sewer main. The trial judge heard testimony from the pastor and several experts and awarded $150,000 in damages to the church. However, the city appealed, arguing that the church had failed to prove that the sewer main leaked and was the cause of the damage to the sanctuary. The appellate court agreed with the city and reversed the decision and dismissed the claims.

In a civil suit like this one brought by the church, the plaintiff has the burden of proving the negligence of the defendant by a preponderance of the evidence. Most negligence cases require proving the following separate elements

  1. whether the defendant had a duty to conform his or her conduct to a specific standard

In a recent Court of Appeals decision, plaintiff Ryan George appealed a jury verdict that rejected his damage claim following his 2007 car accident in Lafayette. The Court of Appeals affirmed the jury’s decision and found that defendants did not improperly challenge jurors during the selection process while one of Mr. George’s challenges was deemed to be discriminatory.

Trials can be made or broken if the jury is sympathetic to one side or the other. This case shows how important it is for plaintiffs to have an experienced attorney involved in jury selection process. A good attorney will not only make the right decision about who should be struck from a jury via peremptory challenges, but will also be prepared to object to the other sides’ challenges if they are a pretext for discrimination while being able to provide a articulable non-race reason for excluding should one of their own challenges are questioned.

The accident occurred at the intersection of Simcoe Street and Evangeline Thurway in Lafaeyette when a vehicle driven by Horace McBride rear ended a vehicle driven by Richard Benoit, Jr. as Benoit was turning left. McBride was working for Helix Energy Solutions Group, Inc. and driving his employer’s vehicle. George was a passenger in Benoit’s vehicle and was injured, requiring extensive treatment.

According to a recent article in Baton Rouge’s Times Picayune, drivers who fall asleep at the wheel and cause an accident could be in more trouble than ever before. Earlier this month a Committee of the Louisiana State Legislature approved a bill that would create the new crime of involuntary vehicular homicide.

A Galiano couple who lost their son in an accident caused by a driver who fell asleep at the wheel provided tearful testimony leading up to the unanimous vote in favor of House Bill 628 in the Committee on the Administration of Criminal Justice. The next step for the bill will be debate on the House floor.

Tina and Anthony “T-Boy” Charpentier lost their 33 year old son when a truck driver fell asleep at the wheel. Anthony doesn’t think the bill is tough enough but hopes it will at least make guilty drivers think about what they have done.

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