Litigation

November 10, 2016

Louisiana Appeals Court Defines “Employee” in Sexual Harassment Lawsuit From Iberia Parish

Employees Only
In the law, it is common for a case to turn on the definition of one word. A word that ordinarily may conjure a single image can explode with possibilities, nuances, and sometimes disastrous consequences during a lawsuit. For Mr. D that word was “employee.” In a recent case, the Louisiana Third Circuit Court of Appeal helped define the term “employee” as regards workers’ compensation law and employment discrimination law.

In this case, Mr. D was hired by Lofton Industries, Inc., a staffing services company, that assigned Mr. D to work with National Oilwell Varco, L.P. (“NOV”). While at NOV, Mr. D alleged that he suffered both verbal and sexual harassment from coworkers. The harassment lasted until Mr. D was fired by NOV. Mr. D filed a lawsuit for sexual harassment against his harassers and NOV, as well as a separate negligence claim against NOV for the negligent hiring and supervision of its employees. This is where the definition of “employee” becomes important and interesting.

In order to maintain his claims against NOV, Mr. D had to meet the definition of employee under the Louisiana Employment Discrimination Law (“LEDL”) but avoid being considered an employee under the Louisiana Workers’ Compensation Act (“LWCA”). Confusingly, the District Court dismissed both Mr. D’s claims, finding that he was both an employee (for LWCA purposes) and not an employee (for LEDL purposes) at the same time.

November 6, 2016

Court of Appeal Discusses Louisiana’s “Lemon Law” Regarding Used Automobile Sales

by Berniard Law Firm

Buying an automobile can be an exciting experience regardless of whether one is trading in an old gas-guzzler for a newer, more efficient model or buying brand new. However, the process of buying an automobile can be a hassle if one happens to purchase a “lemon.” In Louisiana, a “lemon” is defined as a new automobile that has a defect that is significant enough to severely impair the automobile’s use and/or market value. With this being said, it is surprising that even with the abundance of information readily available via Internet, many individuals hastily purchase automobiles, rather than taking the time to gather information and make an informed decision. It is important to remember, as the buyer, that you should be in control throughout the entire process by (1) knowing the style of automobile you desire; (2) calculating the price you can afford; (3) researching the safety, quality, expert opinions, and owner opinions of the automobile you are planning to purchase; and (4) investigating the types of warranties readily available. In the event that one finds his/herself in the aforementioned situation, it is pertinent to retain an attorney, who specializes in Redhibition Law (i.e., Lemon Law) who will file a redhibition claim (i.e., lemon law claim) on your behalf.

The following redhibition action out of Houma, Louisiana discusses the conditions that must be proven by the buyer in order to obtain a favorable judgment. On September 3, 2013, Ms. Melissa Cadiere purchased a 2000 Lincoln LS with 199,684 miles from Wholesale Autoplex, L.L.C. Ms. Cadiere drove the Lincoln for thirty-seven days before her Lincoln failed to start, at which time she contacted Wholesale Autoplex. Wholesale Autoplex advised Ms. Cadiere that her Lincoln would need a new engine. After Wholesale Autoplex failed to repair or replace the engine, Ms. Cadiere filed a petition for redhibition.

Redhibition, in the context of automobiles, is the avoidance of a sale of some vice or defect in the automobile, which renders the automobile either absolutely useless, or severely compromises the function of the automobile in a matter that if known by the buyer at the time of purchase, the buyer would have chosen not to purchase the automobile. See La. C.C. art. 2520. In a redhibition claim, the buyer (i.e., plaintiff) must prove (1) that the seller (i.e., defendant) sold the good in a manner that renders the good absolutely useless for its intended purpose or its use is compromised in a manner that if known at the time of purchase, a reasonable person would have chosen not to purchase the good; (2) the good contained a hidden defect at the time of purchase; and (3) the seller was provided the opportunity to repair the defect. Crow v. Laurie, 729 So. 2d 703, 705-06 (La. Ct. App. 1999).

November 5, 2016

Father of Color Guard Member Unable to Prove Negligence after MLK Parade Injury

by Berniard Law Firm

When bringing a negligence lawsuit to recover damages for injuries sustained as a result of another person’s failure to act with due care, it is important to ensure that that sufficient evidence has been gathered in advance of the trial. A good lawyer knows that in order to properly safeguard against the tactic employed by the opposing party, one must be prepared to back up one’s claim. A case from the Louisiana First Circuit Court of Appeal highlights exactly this point.

In this case, Robert Lee Iles brought a lawsuit on behalf of his minor daughter, Jannah, who was a member of the color guard at Northshore High School (“NHS”) until she sustained an injury. As a member of the NHS color guard, Jannah attended a two-week band camp during the summer. At band camp, she practiced for two hours, two to three times a week after school, and worked alongside her color guard teammates in a daily one-hour class. She and her teammates received between nine to ten hours of instruction each week. Additionally, she received special training sessions to prepare for the Martin Luther King, Jr. (“MLK”) parade. According to Mr. Iles’ petition, Jannah sustained an injury while marching as a member of the NHS color guard while performing alongside the band at a MLK parade in Slidell, Louisiana.

Iles petition claimed that his daughter’s injury entitled the family to damages. The petition named a number of defendants, including: St. Tammany Parish School Board, NHS Band Boosters, Inc. and its insurer, the band director, the color guard director, the school principal, and the parents of her fellow NHS color guard member, Gabrielle Haley. Iles claimed the School Board was liable for the actions of its employees, thus justifying the inclusion of the band director, and that the Boosters paid the color guard director, so his inclusion was justified as well. Iles’ lawsuit further posited that the School Board and Boosters had failed to properly supervise or train the color guard students, giving rise to this action. Iles also sought additional damages from the defendants for failing to properly administer medical attention.

November 4, 2016

Court of Appeal Contemplates City of Baton Rouge’s Vicarious Liability for Police Misconduct

by Berniard Law Firm

on-patrol-1565455-1024x683 In Louisiana, employers are considered to be vicariously liable for the wrongdoings of their employees. La. C.C. art. 2320. This means that an employer is held liable for damages that their employee may cause while performing designated job duties. In a recent case, the Louisiana First Circuit Court of Appeal discussed whether vicarious liability could apply to hold the City of Baton Rouge responsible for injuries caused by the wrongful conduct of one of its police officers.

On March 4, 2007 Officers Nicholas Batiste and Nathan Davis were dispatched to the home of Brian Townsend in Baton Rouge, Louisiana due to a noise complaint. Mr. Townsend, who was hosting a house party at his Highland Road residence, was instructed by Officer Davis and Officer Batiste to shut the party down. Though the parties disputed what transpired after the officers asked that the party be shut down, it was undisputed that Officer Davis tackled Mr. Townsend from behind. Officer Davis landed on Mr. Townsend with such force that Mr. Townsend involuntarily defecated on himself.

Once Mr. Townsend was brought to the police station, he was made to sit on the floor due to his condition. As he was sitting on the floor, he continually asked to use the restroom. His requests were denied. He was then pepper sprayed multiple times and kicked in the groin by Officer Davis. Additionally, Mr. Townsend was dragged across concrete and gravel as he was being moved for processing. Mr. Townsend was brought to the hospital for his cuts from being dragged. There, it was discovered that Mr. Townsend’s bladder was ruptured. Mr. Townsend underwent surgery to repair his bladder. Following Mr. Townsend’s release from the hospital, he returned due to a urinary tract infection, deep vein thrombosis, a non-functioning bowel, and pneumonia.

November 3, 2016

Land Expropriation Damages in Baton Rouge: Different Approaches, Different Outcomes

by Berniard Law Firm

IMG_1055-e1477861245822-768x1024 When land is expropriated by the government, there are many questions concerning how much money the government will owe you. Courts consider factors such as the appraised value of the property, relocation costs, inconvenience, and other possible damages. See La. Const. art. I, §4(B)(5). The best lawyers are familiar with the different approaches the court could use to determine the amount of damages and are prepared to get the best results for their client. A recent case from the Louisiana First Circuit Court of Appeal highlights several different approaches than can be taken by a court in deciding land expropriation damages.

In 2008, the City of Baton Rouge and the Parish of East Baton Rouge expropriated a portion of land on which Baton Rouge Rentals & Sales was located. In this property taking, the city took 0.101 acre of land (4,380.9 square feet) and the business was forced to close their doors and vacate the building. Fifty-one percent of the property was owned by two sisters, Charlene McDonald Nelson and Kathleen McDonald, and forty-nine percent was owned by an employee of Baton Rouge Rentals & Sales, Connie Hyde. The original owner, Charles Hyde, transferred the forty-nine percent to Hyde shortly before he died. Hyde paid rent to the sisters and continued to operate the business until 2008.

The government contended that the total expropriation value of the property was $143,205, a value determined by a court-approved appraiser, Sharon Pruitt. There are three ways to determine the expropriation value of the property before the taking: cost approach, sales approach, and income approach. The cost approach values the taken property based off similar properties. The income approach determines the value by future potential income from the property. And the sales approach, the approach accepted by the trial and appellate courts, is the estimated cost of replacement after the improvements plus the value of the land. The sales approach generated a “before expropriation value” of $329,000 for the property, the income approach was $322,000, and the cost approach was $335,000. In Ms. Pruitt’s expert opinion, the sales approach was the best value determination for this property.

November 2, 2016

No Recovery for Death of Mother Related to Replacement of Feeding Tube

by Berniard Law Firm

surgeon-3-1562055-1024x768 Doctors – we literally put our lives, and the lives of our loved ones, in their hands. It is the most frightening feeling to know that your loved one is in surgery, the possibility of death or complications is always imminent, no matter how small or standard of a surgery. This feeling of fright often turns to anger and pain once someone has lost a loved one. Especially, where we believe the death is due to the negligence of the very doctor we put in control of the fate of our lives.

In this case out of LaSalle Parish, Edith Blackshear died a week after having a percutaneous endoscopic gastrostomy (PEG) tube replacement surgery performed by Dr. Eulogio Tan at Hardtner Medical Center. A PEG tube is commonly known as a feeding tube. Rodney Blackshear, the son of Ms. Blackshear, brought a medical malpractice lawsuit on behalf of his deceased mother and himself. A jury trial was conducted on the matter and the jury found that Dr. Tan had breached the standard of care while treating Ms. Blackshear, but that he did not cause harm to her. Mr. Blackshear appealed the verdict, but the Louisiana Third Circuit Court of Appeal affirmed the lower court’s decision.

Ms. Blackshear was eighty-four years old and a nursing home resident. When she had pulled out her PEG tube, she was treated by Dr. Tan, an emergency medical physician at Hardtner. Dr. Tan conducted a physical exam of Ms. Blackshear, where she had normal vital signs, was not in any distress, had a soft and tender abdomen, and had a normal heart rate and respirations. Dr. Tan did not confirm how long the PEG tube had been in place, or when Ms. Blackshear had pulled it out. Dr. Tan merely replaced the PEG tube, he set forth that he had used a clinical method to ensure the placement was proper, but this was not documented in medical records.

November 1, 2016

Louisiana Legal Malpractice Case Looks at Exception of Prescription

by Berniard Law Firm

law-offices-1477311-1-1024x743 When something goes wrong in a legal case, how long does a party have to make their claim? Louisiana has statutes concerning the time frame in which a party has to bring a claim against an attorney for malpractice and the courts will uphold the time limitation depending on the facts of the case.

In 2007, Ms. Coté, was living with her daughter in Shreveport. The circumstances leading to the original litigation were started when, Leon Bell, who was employed by City’s water department, was sent to a neighborhood to tell the certain residents about the water being shut off. He ended his shift and then hours later entered Ms. Coté’s residence and held her by force. Luckily Ms. Cote’s daughter escaped and alerted the police. Mr. Bell was arrested and charged with aggravated battery and second degree kidnapping; he pled guilty to certain charges and was given a sentence of many years in jail.

Ms. Cotè’s filed a lawsuit against the City of Shreveport (the City) the following year. In that lawsuit she alleged great mental suffering due to the unlawful intrusion. Ms. Cotè alleged that city’s employee had actually been let into her home on a few instances prior because he requested the same as part of his job. On one visit she had would not let him in and notified the City at that time of the incident. The City could not locate any documents detailing Ms. Cote’s grievances. Ms. Cotè argued that the City should be held vicariously liable because the harm she incurred was a result of their employee performing his job duties. The City in return argued that the the criminal activities did not occur as part of their employees’ job duties, therefore they should not be held in concert with him for his negligent actions. Ms. Cotè’s attorneys advised her that the City’s motion on the vicarious liability issue was on solid ground, and she would have a tough time proving her case in court. Ms. Cotè was very hands on with her case, and when her attorneys provided her with an affidavit they intended to present in response to the City’s she indicated discouragement with their handling of her case.

October 31, 2016

Louisiana Property Damage Case Examines Exception of Prescription

by Berniard Law Firm

alaskan-pipeline-4-1357691-1-1024x681
Some cases have a countdown clock attached to them. The question is, when does that clock start? Is it when the damage happens? Is it when the other party is certainly aware of the damage? The courts must consider the facts in each case to be sure that the prescriptive period, or time frame, has not passed.

A case arising out of the State of Louisiana Second Circuit Court of Appeal considers whether the defendants should be permitted to exercise the exception of prescription to bar the plaintiff’s claim against him. The trial court denied the exception, and this appeal followed.

The plaintiffs, Glen and Delia Blevins, owned a piece of property in Webster Parish, which was neighbored to the west by the defendants’—Patrick and Annette Matthews—land. A saltwater pipeline ran through the defendants’ property near the border it shared with the plaintiffs’ property. On June 10, 2011, Mr. Matthews was operating a bulldozer on his property when he damaged the pipeline, which later led to a saltwater spill. The defendants were not aware of the spill right away, partly because Mr. Blevins was recovering from knee surgery at the time. The pipeline was repaired, and the damage to the defendants’ property remediated immediately after.

October 30, 2016

Long-time New Orleans Parade-goer Sues After Being Hit in Head with Beads

by Berniard Law Firm

Anyone who has been to a Mardi Gras parade in New Orleans knows that the festivities are often marked by high-speed projectiles aimed at the crowds. Indeed, the chance to catch coveted “throws” is the very thing that draws many parade goers. The risk of being hit by beads or other throws is so well-known and accepted that there is even a state “Mardi Gras immunity statute” which grants immunity to Mardi Gras krewes who throw the beloved treasures at parades. La. R.S. 9:2796 grants immunity to krewes which sponsor parades for any loss or damaged caused by a krewe member, unless such loss or damage was caused by deliberate acts or gross negligence. Though the parades are a cornerstone of New Orleanian culture, we get to enjoy them only at our own risk, with the knowledge that we could be injured by the very beads and throws that draw us to attend. Recently, a long-time Endymion Ball attendee learned this lesson the hard way.

On the Saturday before Mardi Gras 2012, Rose Ann Citron was hit in the head by a bag of beads while the Krewe of Endymion was making its way through the Superdome in New Orleans, Louisiana on its way to the “Extravaganza;” an invitation-only continuation of celebrations held after the parade. Ms. Citron was not an Extravaganza novice. Her husband, Wayne Cintron was a long-time Endymion Krewe member and Mrs. Citron had attended the majority of Extravaganzas over the past thirty years. Nonetheless, the Citrons filed a lawsuit against the Endymion Krewe seeking damages for injuries allegedly sustained in the bead-throwing.

The Edymion Krewe answered, asserting that it benefitted from Louisiana’s Mardi Gras immunity statute. After discovery (the process of gathering evidence for the case), the Edymion Krewe filed a motion for summary judgment based on the immunity statute. It argued that regardless of what acts occurred that night, no reasonable mind could characterize those acts as gross negligence so as to defeat its immunity.

October 29, 2016

Medical Malpractice Lawsuit Discusses Exceptions of Prescription and Prematurity

by Berniard Law Firm

In filing any petition for damages before a court, timing is critical. And similarly critical is the clear articulation of one’s legal and factual complaints. Failure to timely and clearly raise a particular legal issue risks dismissal by the court. Defendants in litigation can and will use defensive pleadings known as “exceptions,” which seek to have a court dismiss a complaint or petition before the court considers it on the merits. The exception of prescription asserts that the plaintiff brought the claim after the period of time allowed by statute. The exception of prematurity asserts that a particular claim is not sufficiently mature or “ripe” for the court to hear it. A plaintiff in a recent case of the Louisiana Third Circuit Court of Appeal nearly risked the dismissal of his claims under these two exceptions.

Louis J. Arton, Sr., suffered from a heart condition that needed treatment. He scheduled the necessary surgery with Dr. Victor Tedesco, at Lafayette General Medical Center in Lafayette, Louisiana. Louis was taking Warfarin, a blood thinner. It is standard for a patient on a blood thinner to receive an infusion of fresh frozen plasma (“FFP”) to ensure that his or her blood isn’t too thin during an operation. Louis knew this, because he’d been given FFP in preparation for a kidney surgery a few years prior, with near-death results.

To prepare for the heart surgery at Lafayette General, the nurse asked Louis about his allergies, as is standard. Louis stated that he told the nurse about his allergic reaction to plasma infusions. Nonetheless, Louis was given four bags of FFP in preparation for this surgery. Again, he nearly died. His lungs filled with liquid and he went into respiratory arrest.