Civil Matter

November 10, 2019

Recovery Denied In Case Where Twisted Stop Sign Causes Car Accident

3-Email-05-14-1024x683 In the legal world, establishing fault and determining liability is not always easy. In some situations, it may seem clear who is responsible for recovery, but in other cases the situation can become much more difficult than it initially seemed. This issue was explored after an automobile accident in Acadia Parish.

In the morning of December 16, 2011, Ronnie Myers was driving through heavy fog and headed north on Charlene Road. He came to a “T” intersection where Charlene Road met Prudhomme Road (Louisiana Highway 95) but the intersection’s stop sign was twisted and down so that Myers could not see it. Myers was also unfamiliar with the road, and resultantly drove his car across Prudhomme Road and into a ditch, causing injuries to himself and damage to his vehicle. On December 11, 2012, Myers filed a lawsuit in Fifteenth Judicial District Court for the Parish of Acadia against the Acadia Parish Police Jury (APPJ) and the State of Louisiana through the Department of Transportation and Development (DOTD), wanting personal injury and property damages. He claimed that APPJ and DOTD were responsible for the improper state of the stop sign at the intersection.

Nearly three years after Myers’s accident, APPJ and DOTD filed motions for summary judgment, asking for judgment as a matter of law rather than on the merits. A hearing was held on January 12, 2015, and the District Court granted the motions, finding that APPJ did not have custody and control of the stop sign and was not notified of the sign’s defective state. While DOTD was responsible for the stop sign, the District Court held that it also did not have notice of the sign’s problem. Both DOTD and APPJ were dismissed from the lawsuit. Myers appealed.

October 31, 2019

Favorable Interpretation of Filing Deadline by Appellate Court Saves Monroe Medical Malpractice Petitioner from Summary Judgment

by Berniard Law Firm

adult-ambulance-care-263210-1024x802 Often, in litigation – as in life generally – timing is everything. Courts and legislatures set certain time periods for each step in a legal proceeding to establish fairness and to impose reasonable order on the disposition of the case. Occasionally, these deadlines can be ambiguous or open to various interpretations. Louisiana’s Second Circuit Court of Appeal considered such a situation in a medical malpractice case.

In 2011, Francis Grayson was admitted as a patient at Northeast Louisiana Kidney Specialists in Monroe, Louisiana. After contracting an infection from a catheter used for his treatment, he underwent surgery that left him a quadriplegic. A medical review panel requested by Grayson found that his doctors and the medical facility adequately met the standard of care in his kidney treatments and surgery. In February 2015, Grayson initiated a lawsuit for medical malpractice against his physicians and the facility. The following month, the defendants filed a motion for summary judgment on the basis of the medical board’s decision. A hearing was set for August 17. On August 7, ten days prior to the scheduled hearing, Grayson served the defendants with a memorandum opposing summary judgment. The memorandum was accompanied by an affidavit from a medical expert who would testify on Grayson’s behalf about the medical errors that led to his initial infection. Grayson filed the motion with the court on August 10, seven days prior to the scheduled hearing. The defendants then argued that Grayson’s opposition memorandum and affidavit were invalid because they were filed with the court less than eight days before the hearing, as required by the district court rules. The trial court eventually granted the summary judgment in favor of the defendants and dismissed Grayson’s claims.

In 2015, when Grayson’s original petition was filed, Louisiana district court rules required that memoranda opposing summary judgment must be served on the opposing parties at least eight days prior to the hearing. La. Dist. Ct. R 9.9. The defendants, citing a number of cases, argued that the courts had routinely interpreted that the memoranda must also be filed with the court within that same eight-day period. However the Second Circuit noted that in each of the cases relied on by the defendants, the documents in opposition to summary judgment was either filed within an extremely short time—one even being minutes before the hearing—or had some other defect. The Second Circuit focused on the fact that Grayson had properly served the defendants with the memorandum and affidavit within the required time; that the motion was not filed with the court until some days later was not controlling. Therefore, the Court reversed the trial court’s granting of summary judgment in favor of the defendants and remanded the case for further proceedings.

October 28, 2019

Master-Servant Relationship Involving Multiple Employers Scrutinized After Laplace, Louisiana Accident

by Berniard Law Firm

action-business-cargo-2449454-1024x683 Christmas is usually a busy time for families, especially those traveling to visit loved ones. For many businesses it is also a time for increased sales and higher profits. For this reason, it is common for companies to set strict targets and deadlines for employees to meet in order to capitalize on the opportunity. Such deadlines, however, can be dangerous if they push employees beyond their capacities for safety.

On the night of December 25, 2008, Tammy Westbrook, an employee of Western Star Transportation, was driving a truck carrying plants belonging to Nurserymen, Inc. on Interstate 10 near Laplace, Louisiana. Westbrook collided with a GMC Yukon, the impact of which caused the GMC to strike the rear of a Lincoln sedan. The occupants of the vehicles suffered major injuries and a fatality. At the time of the accident, Westbrook had been driving for 33 the prior 36 hours.

The victims of the accident filed a lawsuit for personal injuries and wrongful death against Westbrook, Westerm Star, and Nurserymen. After the jury concluded that Westbrook was not within the scope of a master-servant relationship with Nurserymen at the time of the accident, the trial court entered judgment in favor of the plaintiffs and awarded damages against Westbrook and Western Star. The plaintiffs appealed the judgment to Louisiana’s Fourth Circuit Court of Appeals.

October 16, 2019

Appellate Court Affirms Second Motion for Summary Judgment After Rejecting the First

by Berniard Law Firm

hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768 Trial courts can make mistakes. Some mistakes are permanent, so a redo is impossible. In other cases, the mistakes can be reversed on appeal by an appellate court. When an appellate court reverses a trial court’s decision, the trial court could have to revisit the entire case and put things in correct legal standing between the parties.

Gordon Serou, Sr. resided at the Specialty Hospital of New Orleans, Inc. (“SHONO”), which is a long-term care facility located in the Touro Infirmary (“Touro”). He suffered from Parkinson’s disease and a number of other illnesses. Unfortunately, he was also a patient at SHONO when Hurricane Katrina struck New Orleans in 2005. Two days after Hurricane Katrina struck New Orleans, Mr. Serou passed away due to a generator failure. Upon his death, Mr. Serou’s family members sued Touro, SHONO, and the manufacturer of the faulty generator, Aggreko. Touro then sued Aggreko to recover any damages that the court found Touro liable for in relation to the faulty generator. Aggreko filed a motion for summary judgment, claiming the company was not at fault for the generator failure. Though the Trial Court granted this motion, the Appellate Court reversed and sent the case back to the Trial Court. Aggreko filed another motion for summary judgment, again claiming that the company was not at fault for the generator failure. The Trial Court again granted Aggreko’s motion. Touro argued that this was inappropriate because Aggreko had submitted the motion without any alterations and the Appellate Court had already overturned the granting of this same motion.

A party whose summary judgment motion gets denied at the appellate level may be able to file the motion again. Zeno v. Colonial Mortgage & Loan Corp., 4 So.3d 93, 100 (La. Ct. App. 2008). In fact, a trial court may grant the motion even if the party does not submit new evidence. Paragon Lofts Condo. Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 32 So.3d 303, 306 (La. Ct. App. 2010). This is because a party files an initial summary judgment motion before the actual trial. Therefore, if an appellate court decides to reject an initial summary judgment motion, it is not making a final judgment on the case. Because the appellate court does not make a final judgment, the party can file a second motion for summary judgment. Hargett v. Progressive Ins. Co., 996 So.2d 1199, 1202 (La. Ct. App. 2008).

October 15, 2019

Don’t Hesitate: Lawsuit Dismissed After Six Years For Failure to Prove Defendant Jointly Liable

by Berniard Law Firm

Navigating a lawsuit is a difficult task. Not only do you have to prove the merits of the case, but you also have to navigate the judicial system’s complex procedural requirements. Even if your case seems likely to succeed on the merits, failure to comply with procedural requirements can leave you without recourse.

On March 22, 2001, the Meladines’ boat struck an unknown object submerged at Lake Hermitage while they were fishing in the early morning. In 2002, the Meladines sued six companies in a lawsuit for personal injuries. In the lawsuit, the Meladines alleged that the companies were the owners and/or operators of oil and gas platforms and pipelines located in the Lake Hermitage area. The Meladines alleged that their boat collided with what seemed to be an unmarked, old gas pipeline. They alleged that the defendants had failed to adequately mark or maintain the pipeline or warn of its potential harm. All six of the defendants denied having any ownership interest or control of the object that struck the plaintiffs’ boat.

Over the next three years, the plaintiffs dismissed the claims they had brought against all the defendants except Stone Energy and Chevron USA. In 2007, the plaintiffs added Jefferson Lake and Plaquemines Parish Government (“PPG”) as defendants. A year later, Jefferson Lake filed an exception of prescription because it had not been renamed as a defendant until over six years since the accident. Jefferson Lake also argued that prescription was inappropriate because there was no solidary liability between Jefferson Lake and any original defendants. The case then proceeded to trial.

October 13, 2019

Hard Rock Hotel Partially Collapses in New Orleans

by Berniard Law Firm

advertisement-architecture-big-2380891-683x1024 Around 9am on Saturday, October 12 the Hard Rock Hotel partially collapsed over Canal Street in New Orleans after the top six to eight floors buckled onto the structure. According to New Orleans Fire Department Superintendent Tim McConnel, the remaining structure of the building remains unstable and could possibly collapse entirely. In response, nearby buildings have been evacuated as the two construction cranes are also unstable. Currently, one person has been reported dead, eighteen have been taking to the hospital in unspecified conditions, and two workers are still reported missing. In terms of the next steps to be taken, it is unknown just how long it will take crews to clean up the piles of debris and get the project back on schedule. This is particularly stressful for the city of New Orleans considering the site of the collapse is a major transportation hub for the city – consisting of bus and streetcar lines in addition to the major traffic arteries of the city. An accident such as the Hard Rock Hotel accident will impact much more upon closer inspection spanning to issues such a personal injury, workers compensation, wrongful death, and much more. Considering the complex litigation that can arise out of an incident such as this one it is important to have a good attorney at the ready.

Personal injury lawsuits can arise out of many different circumstances – car accidents, slip and falls, and even injuries on the job. When filing a personal injury case it is incredibly important to have a knowledgeable attorney because filing a personal injury claim too late or even waiting too long to collect damages can result in having your personal injury claim denied. It is important to be persistent in personal injury cases and staying on top of filing deadlines and dates and having a diligent advocate can makes a difference in your case.

Workers compensation is intended to pay for the medical expenses of injured workers and provide a remedy for lost wages. However, workers compensation claims are often complex from start to finish. There are cases in which it can be difficult to determine if someone is considered an ‘employee’ despite being injured while working on a project. This is especially prevalent if a contractor hires subcontractors in order to complete a project. Moreover, it can also be difficult to receive your workers compensation payments with companies often being uncooperative in the workers compensation process.

October 12, 2019

Costing Tenure: How the 2008 Recession Impacted a Northwestern State University Economics Professor

by Berniard Law Firm

class-classroom-conference-716276-1024x683 Opinions vary on the principles of trickle-down economics, but on December 15, 2015 the United States Court of Appeals for the Fifth Circuit issued an opinion which affirmed a lower court summary judgement decision for Northwestern State University to take down economics, along with one of its tenured professors.

In 1994, Robert C. Jones III (“Mr. Jones”) was hired as an economics instructor at Northwestern State University (“NSU”) and later gained tenure as an associate professor. Neither his education nor his instruction could have prepared him for the state enacted public university budget cuts that cost Mr. Jones his job as a result of the Great Recession of 2008. On July 22, 2010, the administrative representatives for NSU sent Mr. Jones a letter to notify him of the end of the economics concentration and his tenure. Following the notice, Mr. Jones presented a seven-page document to a committee of NSU faculty members outlining his arguments against the notice to end his tenure. The committee subsequently rejected Mr. Jones arguments unanimously. A year later, Mr. Jones filed a lawsuit seeking reinstatement and damages against NSU and argued that the university denied his procedural and substantive due process rights. The university raised a defense of sovereign immunity, while the administrative official claimed qualified immunity. The United States District Court for the Western District of Louisiana granted these immunities along with NSU’s motion for summary judgment. Mr. Jones appealed the decision to the Fifth Circuit, which ultimately affirmed the lower court’s judgment.

The Fourteenth Amendment of the United States Constitution states that no state shall “deprive any person of life, liberty, or property without due process of law.” Procedurally, due process includes adequate notice as well as the opportunity to be heard. Due process becomes less clear to define, so courts often rely on case law, which is comparable to the present situation.

September 27, 2019

Award for Cost Denied After Counsel Fails to Properly Introduce Costs into Evidence

by Berniard Law Firm

When a lawsuit fails, there are certain situations where the party who brought the failed lawsuit is responsible for the costs to the other party. Where that line is drawn is generally based on a judge’s discretion and views on the reasonability of those costs. Without excellent attorney work, procedural and legal roadblocks may make it impossible for a court to award the fees that a party should be entitled to. That was the case for three dentists after winning a lawsuit against a Baton Rouge plaintiff.

Tara Lorraine lost a lawsuit against three dentists she accused of malpractice. The jury found that she did not prove that her treatment breached dental treatment standards and her claim was dismissed with prejudice. When a claim is dismissed with prejudice, the dismissal was based on the merits and the facts of the case and it cannot be brought again by that plaintiff.

In response to their favorable verdict, the three dentists then asked the court to award them with the costs of the defense, totaling $9,555.14. This was asked to cover the costs of various things to prepare for trial, such as jury panels and expert witnesses. The Trial Court held a hearing and determined that Ms. Lorraine was liable to the dentists for the full amount requested. Ms. Lorraine then appealed.

September 26, 2019

Trial Court Decision Overturned Due to Prescription Period Expiring

by Berniard Law Firm

adult-chores-flora-1453499-1024x683 If you get hurt due to someone else’s negligence and they agree to cover the costs, how much time do you have to sue for damages? According to Louisiana’s Second Circuit Court of Appeal, you have one year from when the injury occurred or when prescription is interrupted. Typically, prescription refers to land rights, but in Mr. Bethley’s case, it concerns the defendant’s agreement to pay his medical bills.

In July 2012, Mr. Bethley and his father were cutting tree limbs when Ms. Simmons came over and asked to use the saw. Bethley allowed Simmons to try the saw for about fifteen minutes, and then asked him to stop. With the saw in hand, Simmons turned towards Bethley and cut his ankle, which began to bleed to the point where Bethley needed medical attention. On the way to the hospital, Simmons said he would pay for the medical bills as long as Bethley did not tell his wife about it. Simmons paid $180 directly to the hospital, but then stopped making the payments about a year later

In April 2015, Bethley filed suit against Simmons requesting damages for medical bills, lost wages, court costs and pain and suffering. In court, Bethley’s father testified about incident and told the court that Simmons agreed to “take care of it” and asked that his wife not be told. Simmons testified that he didn’t intend to cut Bethley, but Bethley got in the way. He denied promising the pay the medical bills but said he would help if he could. He agreed that he was at fault for the incident, but also contended that the statute of limitation had run out. He also filed an answer stating that over a year had passed since the injury, so the Bethley lost the right to sue. The trial court ruled in favor of Bethley, awarding him damages for pain and suffering, medical bills plus interest, and lost wages. Thereafter, Simmons appealed.

September 24, 2019

Falling Tree Victim Entitled to Increase of General Damages

by Berniard Law Firm

clearing-desolation-destruction-4451-1024x683 Accidents can come from the most unexpected of circumstances and result in life altering consequences. Here, a man suffered severe injuries while driving to the local convenience store to purchase a cup of coffee, when a rotten tree from a resident’s yard fell and struck his vehicle.

The victim, 52-year-old Rodney Caldwell, filed a lawsuit against property owner Michael Jones and ANPAC Insurance Company, Jones’ insurance provider. The lawsuit was filed in Lincoln Parish. Caldwell was awarded special and general damages totaling $12,186. However, after being awarded damages for his claim, Caldwell appealed the amount he received in general damages, which totaled $4,000, claiming that the amount was not sufficient compensation for his injuries. On appeal, the Second Circuit Court of Appeals agreed to increase Caldwell’s amount in general damages to $15,000.

Ordinarily, when assessing damages, the judge or jury have discretion to determine what is a sufficient amount to award the victim. La C.C. art. 2324.1. When determining general damages, the court takes into account the victim’s pain and suffering, loss of physical enjoyment, and other losses of life or lifestyle which cannot be definitively measured in monetary value. McGee v. A C and S, Inc., 933 So. 2d 770 (La. 2006).