Litigation

October 7, 2013

City of Shreveport’s Actions Inspected by Judge in Fire Department Tragedy

On February 21, 2009, Shreveport Fire Department Chief Tommy Adams fell from the top of a ladder while preparing a fire truck for service for the Gemini Mardi Gras parade. As a result, Tommy Adams sustained severe trauma to his spinal column and died ten months after the date of the incident. Chief Adams’ wife, Traci Lee Adams, filed suit on behalf of herself and her two minor children seeking compensation for her husband’s accident-related damages and contending that the City’s response to her husband’s injuries fell below the reasonable standard of care that should have been provided.

In response to Mrs. Adams’ petition, the City of Shreveport filed an exception of no cause of action and argued that the Louisiana Worker’s Compensation Act provided the exclusive remedy. The trial court granted the City’s exception, but allowed Mrs. Adams thirty days to amend her original petition. As a result Mrs. Adams submitted an amended petition stating that the City knew or should have known that Chief Adams’ injuries were substantially certain to occur as a result of the City’s actions. Ultimately, the City filed a motion for summary judgment and the trial court judge granted the City’s motion finding that neither the pleadings, depositions, nor briefs supported an exception to the exclusive remedies provided by the Louisiana Worker’s Compensation Act.

The case went up on appeal.

October 6, 2013

Summary Judgment Obstacle for Delayed Suit in Medical Malpractice Case

by Berniard Law Firm

Put simply, summary judgment is a decision rendered by a court for one party and against another without the litigation of a full trial. According to the Louisiana Supreme Court, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. As you can probably understand, arguing for or against a party’s motion for summary judgment is not only a complex process, but also one that carries much risk.

On September 2, 2008, Daniel Milbert fell off of a roof and broke his ankle. Shortly thereafter, Mr. Milbert received surgery to repair his ankle at the Lafayette General Medical Center and was placed on a pain pump. After speaking to one of his doctors about an increase in pain following his discharge from the hospital, Mr. Milbert was instructed to call if the pain worsened. After attempting to contact doctors at the medical center, Mr. Milbert and his wife were required to leave messages with Dexcomm, an answering service in Lafayette. After Mr. Milbert was diagnosed with compartment syndrome and had to undergo surgery, he and his wife filed suit against Dexcomm on December 23, 2009. Accordingly, Dexcomm filed a motion for summary judgment alleging that the right of recovery had expired. At trial, the court agreed with Dexcomm and granted the motion for summary judgment.

Mr. Milbert and his wife appealed.

October 5, 2013

Jury Trials and Government Entities: How a Car Accident Tested the Concept

by Berniard Law Firm

In May 2004, an employee (Dauzat) of the City of Marksville backed an emergency fire department vehicle into another car containing Daisy Marcile and multiple passengers. Ms. Marcile and her passengers were injured and filed suit against the City of Marksville for damages.

Per La. R.S. 13:5105, a political subdivision of Louisiana cannot be tried by a jury unless it waives this prohibition and either the plaintiff or political subdivision requests a jury trial in the time provided by law. According to Arshad v. City of Kenner, any waiver must be a blanket waiver covering all cases, not a specific suit.

This statute has come under fire before. In Beauclaire v. Greenhouse, the Supreme Court of Louisiana ruled that the waiver provision (section D) of La. R.S. 13:5105 met the standards of the equal protection clause of the constitution, “as the statute allowed either party to demand a jury trial in accordance with the law once the political subdivision waives the the prohibition” and denied either party from seeking a jury trial when the prohibition had not been waived.

October 3, 2013

Lack of Evidence Leads to Failed Suit Against Employer for Workplace Incident

by Berniard Law Firm

On July 12, 2006, Raymond Alex, Sr., a structure carpenter for the BNSF Railway was driving a company boom to a work site in Mermentau. Around 3 p.m., Mr. Alex stopped at an intersection, was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. As a result of the accident, Mr. Alex alleged he suffered injuries to his neck with radiating pain down his right arm and hand. He was given injections in his neck at first, but ultimately required cervical spine surgery.

In July 2007, Mr. Alex sued Mr. Zenon, the lessor of the tractor/trailer, PACCAR Leasing Company, and his employer, Creole Fermentation. After some initial discovery, Mr. Alex settled with the defendants.

Two years after his previous suit, Mr. Alex decided to sue his employer, BNSF, under the Federal Employer’s Liability Act (FELA). In his petition, Mr. Alex alleged that BNSF was negligent for failing to provide a reasonably safe place to work, failing to warn him of dangerous conditions and providing a poorly designed truck for him to work in.

October 2, 2013

Strict Rules of a Medical Malpractice Case Must be Followed by Attorney

by Berniard Law Firm

On August 14, 2008, James Turner was admitted to Willis Knighton Medical Center, located in Shreveport, Louisiana, for a kidney transplant. James Turner passed away six days later on August 20, 2008. James Turner’s wife then brought a medical malpractice lawsuit against the medical center and several doctors, alleging their negligence caused the death of her husband.

Section 40:1299.41-49 of the Louisiana Revised Statute set forth the requirements that Mrs. Turner must follow to successfully bring her medical malpractice suit before a Louisiana court. In Louisiana a medical malpractice complaint must be filed within one year from the day the alleged act of negligence occurred, or one year from the day the negligent act was discovered. Mrs. Turner did this, filing her medical malpractice claim exactly one year after her husband’s death.

However, as the Louisiana Supreme Court states in Turner v. Willis Knighton Medical Center, no lawsuit against certain health care providers may be commenced in any court before the claimant’s complaint has been presented to a medical review panel. The medical review panel is made up of an attorney chairman and three healthcare providers and acts as a source of inquiry for the parties, collects evidence, and comes to a decision regarding the merits of the claim. Mrs. Turner timely requested a medical review panel by filing her original complaint with the Commissioner of Administration.

October 1, 2013

Dispute Over Responsibility in Accident at Apartment Complex

by Berniard Law Firm

Every first year law student learns about negligence in their tort law class. Negligence claims are some of the most common claims brought in civil court. In order for a defendant to be found liable for negligence, it must be shown that the defendant owed the plaintiff a duty of care, which can also be refered to as a duty to protect. This means that the defendant has to have some level of responsibility for protecting the plaintiff from harm. If the defendant has no duty of care, then they cannot be held liable for negligence. The plaintiff has to prove that the defendant owed them that duty of care.

Sometimes it is easy to determine whether or not a defendant owed a plaintiff a duty of care. For instance, medical malpractice suits are often refered to as professional negligence since a doctor or nurse owes their patient a duty of care regarding their medical treatments. Likewise a lawyer owes his client a duty of care regarding their legal representation. But sometimes, a major point of contention in a lawsuit is whether such a duty of care exists at all. The case of Ponceti v. First Lake Properties shows what happens when a plaintiff cannot show that the defendant owed them a duty of care.

Ms. Ponceti and her daughter, Kaitlynn, lived in an apartment complex in Mandeville owned by First Lake Properties. One day Kaitlynn was riding her scooter in the courtyard of the complex. A teenager was riding his bike in the courtyard at the same time, and lost control of his bike while popping a wheelie. He hit Kaitlynn with his bike and injured her leg.

September 27, 2013

Fifth Circuit Sides with Plaintiff in Jones Act suit for Injuries Sustained on Sea Vessel

by Berniard Law Firm

The Jones Act deals with injuries suffered by employees working on American sea-going vessels and their rights to workers’ compensation for those injuries. The Act requires employers to “maintain a reasonably safe work environment.” Another important feature of the Jones Act is that not only is the employer liable for the negligence of their employees, but also any amount of negligence on the employer’s part will result in some level of liability. In other words, in a Jones Act case, if one employee negligently injures another, both the offendin employee and their employer are liable.

The case of Martinez v. Offshore Specialty Fabricators, Inc. deals with a Jones Act claim and really brings to light how important it is to obtain quality legal representation. Mr. Martinez was a seaman employed by Offshore Specialty Fabricators as a mechanic. On May 26, 2008, he and his supervisor, Mr. Smith, went aboard a ship owned by Offshore to repair a defective winch. Both Martinez and Smith testified that the work space was very cramped and required them to bend over while swinging a sledgehammer for almost an hour when suddenly Martinez felt a pop in his neck. Smith testified that he saw Martinez visibly twitch and asked what was wrong. Martinez informed him that something was wrong with his neck, and Smith immediately told him stop working.

Shortly after the injury he told an on-board medic about soreness in his arm due to using the sledgehammer. Two days later Martinez visited another medic and told him that he was unable to move his head or jaw without shooting pain in his neck and shoulder. He was also interviewed by a claims adjuster hired by Offshore and told the adjuster that his injury was due to the cramped working conditions and hammering.

September 21, 2013

Cause-in-Fact Requirements of a Negligence Lawsuit

by Berniard Law Firm

To bring a negligence lawsuit, the plaintiff must provide evidence to show, among other things, that the defendant’s actions caused the injury in question. Causation has two components, cause-in-fact and proximate cause. Cause-in-fact is the actual event that caused the harm. Proximate cause refers to the legal cause. The proximate cause element requires that the injury must have been a reasonably foreseeable result of the defendant’s conduct. That is, a reasonably prudent person would expect the outcome that has resulted in harm or injuries. Here we focus on the discussion of proximate cause, which is more difficult to establish than cause-in-fact in most cases.

Courts often use the well-established foreseeability test to determine proximate cause. The test looks at whether the harm resulting from an action could be predicted by a reasonable prudent person. If a reasonable person could have predicted harm or injuries, then the injuries are foreseeable and defendant’s actions is the proximate cause of the injuries and therefore should be liable. For example, it is foreseeable that throwing a baseball at someone could cause him head injuries; it is also foreseeable that having an open flame near gasoline could cause an explosion.

In a recent case from the Court of Appeals of the Fifth Circuit, the court applied the foreseeability test to determine proximate cause. The plaintiffs brought a negligence claim under Louisiana law, alleging that the defendants’ negligence in attempting to extinguish fire ultimately caused the oil spill and plaintiff’s resulting damages. The court affirmed the decision of the lower court and concluded that the damages are too attenuated and distant from the defendants’ actions. Essentially, the court was saying that the plaintiff failed to state a plausible cause of foreseeability as required for proximate cause. The court agreed with the analyses of the district court, which stated that “in order for the defendants to foresee such result, they would have had to have anticipated that spraying water on the mobile offshore unit would cause the vessel to capsize and the connecting pipe to collapse, and the blowout preventer would not control the flow of hydrocarbons, and the discharge would flow abated for three months, and that the oil would flow fifty miles inland.” Each one of those specific event or coincidence must occur for the defendant’s injuries to result from them and the whole situation could not be predicted by a reasonable person.

September 19, 2013

Spoliation of Evidence Key Concern in Personal Injury Cases

by Berniard Law Firm

After you have been in a terrible accident or lost a loved one, especially when the accident or death was caused by the negligence of someone else, you probably want justice. The outrage, the pain, and the sense of loss are too much to bear, and you want someone to pay for what was done. You want to be made as whole as possible. But what if the evidence that would allow that justice to come to pass has been ruined? And what if it was the allegedly guilty party who destroyed it? This intentional destruction of evidence primarily for the purpose of depriving the opposing party of its use is known as spoliation of evidence.

While a party might assume that spoliation of evidence has occurred, mere allegations will not get you far, and actually proving that spoliation of evidence has occurred can be much harder than you might think. In the state of Louisiana, there are several rules and standards with regard to how a party must prove that such spoliation of evidence actually occurred. First of all, merely accusing someone of negligently destroying evidence is not enough to prove spoliation of evidence. The standard is much higher than that. The plaintiff actually has to prove that the evidence was intentionally destroyed, and it can be quite difficult to prove the intentions of one’s actions.

If a party fails to produce evidence within his or her reach, there is a presumption that the evidence would have been detrimental to the case; however, it is still essential to prove that the evidence was intentionally destroyed. Furthermore, the defendant has a duty to preserve evidence. This duty arises because of the foreseeability of needing that evidence in the future. If there is no ability to foresee the need for that evidence in the future, though, the duty does not exist.

September 17, 2013

Proper Service Essential for Successful Legal Remedy

by Berniard Law Firm

Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, “perfecting” a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?