Criminal Matter

August 12, 2013

Shreveport Property Owner Found Liable for Kitchen Ceiling Collapse

Many people in New Orleans rent property. Whether a house, a duplex, or an apartment, these residents typically rely on property owners to make necessary repairs to the premises. Proper maintenance ensures that residents are safe and their well-being will be protected. Unfortunately, all too often property owners fail to remedy dangerous situations, which can lead to serious injuries. Wynn v. Luck, a recently decided lawsuit by the Court of Appeal for the Second Circuit, illustrates how a negligence claim can help victims of these situations obtain the compensation they deserve.

In that case, two women were injured when a large section of the kitchen ceiling in a rented house collapsed on them. Though the property owner claimed he did not know of the condition and therefore was not negligent for failing to repair it, the court found the record full of evidence to the contrary. First, an inspection of the property days after the incident found that almost all of the ceilings in the house were in dangerous disrepair and would have been noticeable during any visit by the property owner. Second, a maintenance man hired by the property owner provided services to the house on several occasions and, according to the court, he should have noticed the conditions and conveyed that information to the property owner. Finding the property owner constructively knew of the dangerous condition, the court held the property owner liable for negligence and the victims’ injuries.

According to Louisiana law, an owner or lessor of a property is responsible for the condition of his premises when leased to another. Therefore, the owner is liable for any damage or injuries caused by a defect in the property that he knew of or should have known of through the exercise of reasonable care, provided the dangerous condition could have been prevented through the exercise of reasonable care and the owner failed to exercise that care.

August 5, 2013

Excessive Force During a Traffic Stop Inspected in Louisiana and Qualified Immunity

by Berniard Law Firm

After a traffic stop in Shreveport, Louisiana, a man was arrested by two officers. The man had thrown liquid at the car behind him before he was pulled over. During the arrest, the two officers repeatedly grabbed and tasered the man. Eventually, they realized that the man’s elbow had been dislocated and called for medical assistance. Because of the injury, the man had to undergo multiple surgeries and was ultimately left with permanent disabilities in his left arm and hand. In light of this, the man claimed that the officers used excessive force during the arrest.

The injured man brought suit against the police officers as well as other defendants, and ultimately the trial court granted the motion of summary judgment filed by the defendants, ruling against the injured man. When appealing this decision, the injured man brought two main claims: 1) that the district court erred by granting the two police officers qualified immunity with regard to the excessive force claim; and 2) that the district court erred by dismissing the constitutional claim he brought against the head of the police department and the city for not implementing a proper policy for off-duty cops (one of the cops involved in the arrest was off-duty at the time).

With regard to the first claim, public officials (e.g. police officers) are allowed qualified immunity on summary judgment unless two requirements are met: 1) the plaintiff produces sufficient evidence to raise a genuine issue of material fact as to whether the conduct actually violated a constitutional right; and 2) the actions of the officers were objectively unreasonably in light of the relevant law at the time. In this case the Fourth Amendment provides that excessive force during an arrest is impermissible. However, according to the Supreme Court, every arrest requires the right to use some force, especially if the suspect is a threat to the officers or is resisting arrest. So, did the police officers use force that was clearly excessive and clearly unreasonable?

July 12, 2013

Demonstrating Permissive Use of Vehicles Key to Insurers’ Liability

by Berniard Law Firm

Motorist Jennifer Lopez was injured in a hit-and-run accident with a truck near Vinton. At the time of the accident, the truck was being driven by someone other than its owner, Teri Ardoin. The driver fled the scene but the truck was tracked down and Ardoin identified as the owner. Lopez filed suit against both Ardoin and her insurer, Safeway Insurance Company. At trial, the issue was Safeway’s liability as insurer of the truck. The trial judge awarded damages to Lopez, but because of Safeway’s policy limits, Lopez’s own insurer, State Farm, had to cover the balance.

On appeal, Safeway contended that its coverage of the vehicle could not be proven without first establishing that the insured gave permission to drive the truck to the unknown driver. The appeal raises questions of the omnibus insurance clause provided by Louisiana statute, La.R.S. 32:900(B)(2). Under this law, an automobile insurance policy shall cover any person who uses the insured’s vehicle with express or implied permission of the insured. It’s up to the plaintiff to establish use of the vehicle with express or implied permission of the insured.

Demonstrating this permissive use requires fact-finding at the trial level. Without some proof of “manifest error,” such fact-finding will not be overturned on appeal. The trial judge in this case found that Ardoin’s truck was the truck involved in the accident. Further, he found Safeway liable for the accident. Several pieces of evidence were put forth to show this, including eyewitness reports identifying the truck and careful observation and recording of the license plate number.

June 4, 2013

Legal Concepts: Louisiana Code of Civil Procedure and Hearsay

by Berniard Law Firm

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms

Assertive Conduct:

May 30, 2013

Asbestos Case Involves Rules for Testimony and Exclusion

by Berniard Law Firm

Joseph Trascher of Slidell, LA, was born in April 15, 1940 and died April 11, 2007. Shortly before his death in March of 2007, he filed a petition in the district court seeking an ex parte order to perpetuate his testimony. He alleged that in August 2006, he was diagnosed with asbestosis, and that it was unlikely that he would survive longer than six more months. In the petition, Trascher also alleged that he sustained occupational exposures to asbestos while working as a tack welder at the Avondale Shipyard from 1960 to 1964, and at the Equitable Shipyard from 1965-1974. He requested service on these parties and a number of other parties he identified as expected defendants in his anticipated suit for damages. The district court granted the order.

The video deposition began on April 3, 2007, but was halted due to Trascher’s failing health and fatigue. He tragically died before his deposition could be continued and before he could be cross-examined by opposing counsel. The district court admitted the deposition as trial evidence, and the admissibility of the deposition reached the Supreme Court of Louisiana. The LA Supreme found that “while most of the video deposition is inadmissible, parts of the deposition are admissible under an exception to the hearsay rule.”

Typically, witnesses are to testify in court during a trial in order for the testimony to be admissible. However, there are exceptions to this general rule, and one such exception is to allow a party to perpetuate testimony. Perpetuating testimony is when testimony is prepared so that it can be used as evidence during a trial, even though the person who made the testimony will not be present at the trial. Article 1430 of the Louisiana Code of Civil Procedure grants perpetuation orders when

April 11, 2013

Nursing Home Attack Highlights Workplace Rights

by Berniard Law Firm

In order to hear a claim a court must have jurisdiction over the matter. Essentially, that means that the court must be legally able to hear the case. For example, some courts are only legally allowed to hear certain types of cases, like the Tax Court, which only hears tax cases. In addition, some courts may be precluded by administrative agencies. If an administrative agency is supposed to address the issue, then the court is generally not allowed to step in to fill the administrative agency’s role. The laws occasionally create small areas where the court can act, but in order to fit in those areas, your case has to have a certain type of very specific facts.

A case arising from the Parish of East Carroll explains these conflicts. In that case, a woman working at Shady Lake Nursing Home was attacked by a resident. The resident was outside of his room when he was not supposed to be, the women told him to go back to his room, and he attacked her in a fit of rage. In this instance, the woman was obese and had high blood pressure. She started having blood pressure issues shortly after the attack and was subsequently rushed to the hospital. She died approximately one hour after the attack.

Because the attack occurred at her workplace while she was working, workers’ compensation covered the attack. However, her family also attempted to sue Shady Lake Nursing Home for damages. They argued under two major exceptions to workers’ compenstation law: intentional tort law and heart conditions.

April 7, 2013

Excessive Force and Qualified Immunity of Police Officers Discussed in 5th Circuit Ruling

by Berniard Law Firm

In the previous post, we looked at the background and majority opinion in Khan v. Normand, et al, which involved the tragic death of Nayeem Khan after he was hog-tied by deputies of the Jefferson Parish Sheriff’s Office. This post will delve into the dissent written by Judge Garza.

Judge Garza wastes precious little time in strenuously objecting to the majority’s conclusion. He writes:

The district court in this case concluded that the facts surrounding Khan’s death fell somewhere in between Gutierrez and Hill, but that Hill ultimately controlled. The majority has taken a different route to the same conclusion, opining that Gutierrez was a narrow holding that cannot be extended to the facts of this case, and that our decision in Hill makes it difficult to say that the law was clearly established.

April 5, 2013

5th Circuit Affirms Dismissal of Suit Alleging Excessive Force by Jefferson Parish Deputies – Qualified Immunity

by Berniard Law Firm

Precedent is an absolutely vital part of American jurisprudence. Judges look to previous court cases to help guide them through their decision making process. Judges attempt to distinguish cases that are different, and analogize similar cases. Precedent adds an amount of stability to our justice system. But what happens when the outcomes of seemingly similar cases appear contradictory? The case of Khan v. Normand, et al. helps illustrate the importance of precedent in the context of the tragic death of a man in police custody and illustrates how judges can look at the same precedents and reach very different conclusions.

On July 17, 2007, Nayeem Khan, a man with a history of mental illness, began to run around a grocery store yelling that people outside were going to kill him. While visibly upset and delusional, Mr. Khan was also suffering from a drug-induced psychosis at the time of this incident. After managing to handcuff him, store security guards, and an off-duty sheriff’s deputy that happened to be in the store at the time of the incident, contacted the Jefferson Parish Sheriff’s Office. When deputies began to remove Mr. Khan from the store, he physically resisted. Eventually deputies restrained Mr. Khan by handcuffing both his hands and legs behind his body and connecting his hand and leg restraints with another pair of handcuffs. This meant Mr. Khan was in a four-point restraint which effectively hog-tied him. Mr. Khan began to have great difficulty breathing almost immediately, and deputies removed the restraints and administered CPR until an ambulance arrived. Mr. Khan began to breathe again, but tragically died later that night.

Mr. Khan’s parents sued the Jefferson Parish Sheriff’s Office and the individual deputies involved in their son’s restraint alleging excessive force and violations of Nayeem’s constitutional rights. The Jefferson Parish Sheriff’s Office sought a summary judgment alleging that the deputies were protected from liability on the basis of qualified immunity. The district court agreed, and granted the motion for summary judgment on the grounds of qualified immunity which prevents government officials from being sued while in the course of performing their official duties.

April 3, 2013

5th Circuit Affirms Dismissal of Claims of Excessive Force and Unlawful Arrest

by Berniard Law Firm

42 U.S.C. Section 1983, better known simply as Sec. 1983, is an extremely important federal civil rights law that allows people to seek damages for violations of their civil rights by state actors (those who work for the government). Such claims frequently arise from alleged excessive force or unlawful arrest by police officers. The recent 5th Circuit case of Walter v. Horseshoe Entertainment provides an interesting example of how Sec. 1983 claims work in real life.

On March 12, 2004, Rose Walter and Sylvester Shelton were involved in an incident at the Horseshoe Casino and Hotel in Bossier City. After getting into two altercations with other casino patrons, Walter and Shelton were told to leave the casino for twenty-four hours. The casino’s assistant security supervisor, Mr. James, called for police assistance from the Bossier City Police Department and Officer Estess arrived on the scene. After yet another altercation with Officer Estess and Mr. James, Walter and Shelton were forcibly restrained, handcuffed, and arrested. The two were subsequently charged and convicted in a Bossier City court for remaining after being forbidden and resisting arrest.

After their convictions, Walter and Shelton filed a petition in state court against Bossier City, Officer Estess, the Casino and the Casino’s parent company, Horseshoe Entertainment. Walter and Shelton claimed that they were falsely arrested and that Officer Estess and Mr. James had used excessive force in restraining them. The state court granted Bossier City and Officer Estes their motions for summary judgment. Horseshoe Entertainment removed the Sec. 1983 claim against them from state court to federal district court, where their motion for summary judgment was also granted.

April 1, 2013

Understanding the Duty of Care and Liability in Contracted Work

by Berniard Law Firm

Duty, causation, breach, and damages…what do these four little words mean to you? They could mean everything if you are litigating a claim of negligence because these terms represent the elements that must be satisfied in order to successfully prove your case. Negligence suits have historically been analyzed using these four elements and it is important to note that if a plaintiff fails to prove even one element of his claim, he loses on the entire tort claim.

The duty of care refers to the circumstances and relationships which the law recognizes as giving rise to a legal duty to prevent foreseeable harm from occurring to others. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care. The idea of establishing a duty played a pivotal role in, Bloxom v. The City of Shreveport, a highly controversial case taking place in DeSoto Parish in 2010.

In Bloxom v. City of Shreveport, David McFarlin, the president of Blue Phoenix Trading Company interviewed Brian Horn for a cab driver position. Horn, who had previously served time on a conviction for a felony of sexual assault and was a registered sex offender, was hired by McFarlin and drove a cab marked “Action Taxi.” In March of 2010, Horn posed as a young female and lured a young boy into his cab; Horn later murdered the boy and dumped his body in a wooded area off Hwy. 171 in DeSoto Parish. Horn is currently awaiting trial for capital murder. Meanwhile, the boy’s mother filed a wrongful death suit against both David McFarlin, individually, and his Blue Phoenix Trading Company. More information as it relates to the facts of this case and on the capital murder charge can be found here.