Civil Matter

September 10, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages

The Court of Appeals for the Fifth Circuit addressed an injury case that involved a crane mechanic who was injured on an offshore drilling rig. The man was injured when he fell through an uncovered ladder hole on the top portion of the crane cab which was about fourteen feet above the deck of the rig. As a result of his injuries, he is now unable to work as a crane mechanic, but he has returned to work in a clerical capacity for the company in which he was working for previously. The two parties in this case are the employee and the owner of the rig on which he was injured; however, this case is complicated because the employer is also involved in the worker’s compensation claims.

This case involved a cross appeal where both parties appealed some part of the lower court’s decision. There were a few issues that arose in this case that that Court of Appeals addressed. This case touches on the Jones Act and considers the concept of contributory negligence. This case is also based on the Longshore and Harbor Worker’s Compensation Act so it affects the employer and their insurance company as well. This post will present the basic facts of this case and discuss the Jones Act. A follow up post will address the worker’s compensation aspects of the court’s decision.1

The employee appealed based on the claim that that he did not contribute to his own injury by being careless. This concept is generally known as contributory negligence. He also argued that even if he was partially responsible, the Jones Act protected him from being punished for his contribution to the injury. The owner of the rig appealed based on the claim that they were also not partially negligent. The Fifth Circuit Court of Appeals considered all of these issues in turn and affirmed the lower court’s judgment. The court states that both parties were partially negligent in this case; the owner of the rig left open the cover through which the employee fell and the employee was not watching where he was going, thus contributing to his injury.

September 7, 2012

Trip and Fall at Metarie Carwash Leaves Plaintiff All Wet

by Berniard Law Firm

On September 9, 2008, George Alonzo visited the Safari Car Wash on Veterans Memorial Boulevard in Metarie. While exiting the restroom in the car wash’s waiting area, Alonzo fell and sustained injuries. In a lawsuit against the carwash, he alleged that he slipped in a puddle that had been caused by employees’ tracking in water from the carwash facilities.

Under Louisiana law, Alonzo shouldered the burden of proving three key elements: 1) the condition that existed on the car wash’s premises presented an unreasonable risk of harm and that the risk was reasonably foreseeable; 2) the car wash either created or had actual or constructive notice of the condition which caused the risk; and (3) the car wash failed to exercise reasonable care in remediating the condition. Constructive notice means that the condition existed for such a period of time that it should have been discovered if the car wash’s employees had exercised reasonable care.

Alonzo’s complaint was dismissed by the trial court on the car wash’s motion for summary judgment. Alonzo appealed to the Fifth Circuit Court of Appeal for the State of Louisiana, which affirmed the dismissal. Upon review, the court noted that Alonzo failed to prove that an unreasonably dangerous condition caused his fall. During his deposition, when asked what caused his fall, Alonzo responded, “I guess the floor was damp. I didn’t really see it, because I–you know, I wasn’t looking down when I walk.” He stated further that he assumed the floor was wet, but that he did not look on the floor after the fall to see what he would have slipped on, even though his pants, socks, and shoes were wet. Alonzo also contended that the waiting area’s concrete floor was hazardous because there were no carpets or non-slip mats, and the car wash employees were permitted to enter the waiting area in wet clothes and shoes. The court concluded that “Alonzo… was unable to identify the condition of the floor in defendant’s premises on the date of the fall,” and the circumstantial evidence he offered was insufficient to meet his burden of proof.

September 5, 2012

Security Breach Case Fleshes Out Requirements for Successful Suit

by Berniard Law Firm

It seems that in such a technologically dependent society, where digital information is everywhere, unauthorized access to computer databases (commonly referred to as “hacking”) is an all too common occurrence. However, as the recent Third Circuit decision in Reilly v. Ceridian Corp. illustrates, a company’s security breach that results in the exposure of hundreds of individuals’ personal information does not necessarily result in an automatic “harm” worthy of compensation.

In Reilly v. Ceridian Corp., Ceridian Corporation was a payroll processing firm. In order to process its customers’ payrolls, Ceridian collected personal information of its customers’ employees, which in some instances included an employee’s name, address, social security number, date of birth, and bank account information. One of Ceridian’s customers was the Brach Eichler law firm, where the plaintiffs, Kathy Reilly and Patricia Pluemacher, were both employed. On December 22, 2009, disaster struck when an unknown hacker infiltrated Ceridian’s records systems. While it is unknown whether the hacker read, copied, or understood the data he or she had access to, it was clear that the hacker potentially gained access to the personal and financial information of approximately 27,000 employees, including Reilly and Pluemacher. Ceridian contacted the potential victims to inform them of the situation, but for Reilly and Pluemacher, contact from Ceridian was simply not enough. Reilly and Pluemacher filed a claim in the United States District Court for the District of New Jersey on behalf of all of Ceridian’s potential victims. Reilly and Pluemacher claimed that the security breach made them susceptible to an increased risk of identity theft, and required their additional time and money to monitor their credit activity. The District Court, however, granted Ceridian’s motion to dismiss, stating that Reilly, Pluemacher, and the other potential victims’ claims did not have standing for failing to address a “case of controversy.” The Court of Appeals for the Third Circuit affirmed.

The Third Circuit agreed that the potential victims failed to establish adequate standing under Article III of the Constitution to bring their claim to federal court. Article III limits federal courts to only hear actual “cases or controversies” that might arise. Part of that requirement is a showing of “injury-in-fact,” or what the Supreme Court described in Danvers Motor Co. v. Ford Motor Co. as an invasion of a legally protected interest that is (1) concrete and particularized, and (2) actual or imminent, not conjectural or hypothetical. The Third Circuit felt that the potential victims’ allegations were too speculative. In order for the potential victims’ claim to adequately have standing, the court would have to assume that the hacker had actually read, copied or understood the personal information, had intended to commit future criminal acts by misusing the information, and had the capabilities of making unauthorized transactions with that information. Without these facts, no harm was suffered and, thus, no claim existed.

September 3, 2012

Malicious Prosecution Another Form of Injury Suffered by Public

by Berniard Law Firm

A sheriff candidate for Concordia Parish, James Whittington, sued his opponent, Sheriff Randy Maxwell, for malicious prosecution and violating both his Fourth Amendment and First Amendment rights.

During the sheriff election campaign, Whittington ran several ads in the local newspaper including several that described misconduct that had allegedly taken place in the Sheriff’s Office during Maxwell’s term. Specifically, Whittington claimed that the deputy sheriff had been arrested on charges of marijuana possession. He even published an arrest ticket for the deputy sheriff’s arrest for marijuana. These ads caused Maxwell much embarrassment over his management of the Sheriff’s Office.

Maxwell arrested Whittington on the report of his ex-girlfriend who claimed that Whittington had harassed her by making multiple phone calls to her and taking two rings off her hand, refusing to return them. The judge, Boothe, set Whittington’s bail at $175,000, a high amount considering Whittington’s prior record of a single misdemeanor. Since Whittington could not post bond, he spent fifty days in jail.

August 31, 2012

Damages a Complicated Concern in Louisiana Asbestos Case

by Berniard Law Firm

Damages are awarded in successful civil instances in order to put the injured party back into a position that they would have been in had the events in the case unfolded as planned or if the transaction had not taken place at all. For example, in a contracts case, if one party ordered and paid for widgets, and does not receive those widgets, then he should be able to get his money back or the court could force the other party to provide the widgets as promised. Sometimes, however, the position that you were in before the deal is not easy to quantify into a dollar amount. In cases where the injury is either physical or emotional, damages are very difficult to estimate.

In cases where the injury is either physical, emotional, or both, the court uses a variety of methods to attempt to determine the appropriate amount of damages. For example, if someone has been harmed physically and needs to go to the hospital, then part of the compensation will often include money to cover the hospital bills. If an individual has been troubled emotionally and needs to see a therapist, then the bills for that service will often be considered to figure damages. In addition, the court will often look at past cases to determine what type of monetary award that juries have given to the victim under similar circumstances. If the award that the jury gives is significantly smaller or larger than past awards then the court may intervene to adjust the damages granted.

A 2011 Delaware Supreme Court case illustrates this concept very well. In this case, a son and mother were exposed to asbestos while operating a car repair business for over forty years in Louisiana. They died after contracting mesothelioma; the mother died two years prior to her son’s death. Several issues came up in this case regarding the payment of damages. The lower court declared that two businesses were partially liable for the death of these individuals. Therefore, those businesses were ordered to pay $500,000 to the four remaining family members for the loss of their mother, $0 to the son for the loss of his mother, $80,000 to the mother’s estate for pain and suffering, and $1.6 million to the son’s estate for his pain and suffering. All of these funds were given to the four remaining family members.

August 29, 2012

Court Examines Misunderstanding that Allowed for Unemployment Benefits

by Berniard Law Firm

Unemployment benefits are granted in Louisiana with the assumption that the employee did not perform any misconduct within the course of employment. Misconduct is defined as either an intentional offense or an accidental offense that the employee should have been able to avoid if they had paid more attention or been more careful. Misconduct could also include an intentional and substantial disregard for the interests of the employer. For example, making extremely risky investments that are very likely to loose money would be considered disregard for the interests of the employer. If any of these types of misconduct are found, then the employee is disqualified from being able to receive unemployment.

Recently, the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana gave a good example of what the court would classify as misconduct. The District Court found for the employee in this case, so the employer appealed to the Court of Appeal for the Second Circuit in Louisiana.

The employee in this case was hired to be an assistant to the bookkeeper in an oil company. Her title was “office administrator.” Among other duties, she double checked the payroll figures for the bookkeeper and provided an orientation program for new hires. She had been working for the company for seven months when she requested an unpaid vacation.

August 27, 2012

Court Determines Louisiana Man’s $1.3 Million Award for Injury is Not Excessive

by Berniard Law Firm

In October of 2009 a man was injured on a tugboat near Amelia, Louisiana, while attempting to do his duty as a deckhand. Two major issues came up in this case when it went to the Court of Appeals for the Fifth Circuit. First, the deckhand had to prove that he did not cause or partially cause his own injury. Second, he also had to demonstrate that the damages he was awarded at the District Court level were not excessive. Both of these factors were proven and the injured man was awarded approximately $1.3 million in damages.

The deckhand in this case was on a small tugboat and attempted to transfer a big barge that they were hauling to another larger tugboat. The small tugboat crew made the transfer in the very early morning hours and while the sea was quite rough. The deckhand was injured when his tugboat dipped in a wave; a wire came untied, and struck him. He was thrown against a wall, which knocked him unconscious. As a result, he had fractures in two of his vertebrae and wore a back brace for a month before a serious surgery that fused his vertebrae together. He also has serious pain issues that will have to be controlled with a pain pump, which gives pain medication directly to the spinal cord, or the continued use of oral pain medication. His pain issues will likely continue for the rest of his life.

In order to collect damages, the deckhand needed to prove that his injury was not also partially his own fault because he was being careless. In legal terms, this is known as contributory negligence. This was a major issue because at the time that the deckhand was injured, he was in what was called a “pressure zone.” The pressure zone basically assumes that the portion of the deck in which he was standing was more dangerous at the time of the transfer than the other portions of the deck. This is because a wire that the boats used to transfer was tight at that portion of the deck, so if it came loose then the deckhands would lose control of it. The court determined that he did not contribute to his injury in this case because he was following the orders of his captain when he was injured. Previous case law has stated that individuals following orders cannot have contributory negligence because their superiors put them in that situation.

August 20, 2012

Medical Malpractice Claim Arises from Failure to Follow DNR

by Berniard Law Firm

A do-not-resuscitate order (“DNR”) is a formalized direction to medical personnel that they are forbidden from performing life-saving efforts on an individual who is in need of care. In Jones v. Ruston Louisiana Hospital Company, the decedent filed a DNR, which was kept on record, with the Northern Louisiana Medical Center (“NLMC”) in Ruston, Louisiana. In July of 2009, the decedent was admitted to the NLMC for medical treatment; and six days later, despite the very clear instructions of the DNR, NLMC employees resuscitated him when he went into cardiac arrest. Thereafter, the decedent suffered unnecessary and extensive physical disabilities, requiring rehabilitative treatment for two months until his death.

The decedent’s family members (the “Plaintiffs”) posthumously brought suit against NLMC for the following four claims: (1) reimbursement for medical expenses in connection with his rehabilitation care; (2) physical and mental pain and suffering; (3) loss of enjoyment of life and cognitive decline; and (4) bystander recovery. However, the NLMC fired back with a procedural defect argument that the Plaintiffs skipped a crucial step in bringing the lawsuit. An “exception of prematurity” was filed based on the Louisiana Medical Malpractice Act (“LMMA”), which requires that a case be brought before a medical review panel prior to claims being filed in court when the defendant is a qualified healthcare provider. This exception applies when the underlying alleged conduct of the defendant exists under the LMMA umbrella. Specifically, and most importantly in this case, the claim must be for medical malpractice claim and not general tort liability.

The issue at hand was whether the Plaintiffs’ claims were based on medical malpractice or general tort law. In order to resolve this issue, the court relied on Coleman v. Deno (2002), which established the following six factors: (1) whether the wrong is “treatment related” or caused by failure to exercise professional judgement; (2) whether the wrong requires expert medical evidence to determine whether a standard of care was breached; (3) whether the patient’s condition was assessed; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is licensed to perform; (5) whether the treatment caused the injury or would have happened without medical care; and (6) whether it was an intentional tort.

August 15, 2012

Injury Due to Workplace Discrimination Handled in Court of Appeals

by Berniard Law Firm

Discrimination in the workplace is unfortunately all too common. But, how do you determine if you might be able to file a claim for workplace discrimination that resulted in a loss of job? Although this is a challenging subject that should be decided for each individual situation, the Court of Appeals for the Fifth Circuit (which includes Louisiana) has come up with a general outline for discrimination cases. This outline might be helpful to determine whether you should bring a case if you feel your workplace has discriminated against you.

It is illegal for an employer to fire an employee because of the employee’s race. If race was a “contributing factor” in the loss of employment then it is illegal, even if there are other, lawful reasons for the termination of employment. There are three major steps to determine whether or not you might have a case for workplace discrimination.

First, the court will decide if the person who was allegedly discriminated against has a “prime facie” case for discrimination. That is, whether the case looks like discrimination on the surface without diving too deep into the facts. The court will base this decision on four qualifications. First, the person allegedly discriminated against must be a member of a protected class. A protected class has been defined by law as race or color, nationality, sex, or religion. However, an individual can be considered a protected class in relation to the particular situation in the workplace. Therefore, an individual can be a protected class even if that individual is not considered a minority in comparison to the general population. Second, he or she must be qualified for the position that they held. Third, he or she must have actually been terminated from employment. Lastly, he or she must have been replaced by someone from outside the protected class in which the person who allegedly discriminated against belongs. Assuming all of these qualifications are met, you can move on to step two.

August 13, 2012

Wrongful Death Claim Based on Fatal Crane Accident Dismissed

by Berniard Law Firm

Death on the job is a sad reality that all too many Louisiana families face. When a loved one dies on the job, the victim’s family is not only left with an emotional hole, but a financial gap as well. Children, siblings and spouses who may have relied on the deceased’s income can face economic hardship. Fortunately, a wrongful death lawsuit can help ease this financial burden.

A wrongful death lawsuit seeks to recover damages a surviving family member or estate has suffered by the negligent death of a family member at the hands of another. Since these suits are brought on behalf of surviving family members, compensation cannot be recovered for injuries that are personal to the deceased. This means that pain and suffering and mental distress damages cannot be recovered through a wrongful death lawsuit. However, lost wages and other financial losses faced by the surviving family can be recovered.

A wrongful death is a death that is caused by the negligent act or omission of another. In certain circumstances, if the death is proven to be caused intentionally, a jury may be more likely to award a larger recovery. However, proving an intentional act can be difficult. This was illustrated recently in a case where a man was fatally wounded aboard a ship when he was struck by a crane load.