Litigation

July 1, 2013

Tragic Incident Involving Infant Demonstrates Assignment of Liability

Any injury suffered by a child under medical care is especially tragic. However, litigation after such an injury is essential for families who often have to do so in order to afford future medical costs down the road. Recently, the parents of an infant sued a group of doctors and a medical equipment provider alleging that the defendants caused their daughter’s brain damage. The jury found another doctor, one who was not sued, to be one hundred percent responsible for the girl’s injuries. The parents appealed this decision but the decision was upheld by the appeals court.

After a stay in the neonatal ICU, the infant in question was sent home with her parents with a device which recorded her breathing and heart rate. This device alerted the parents when problems arose and every so often sent the recorded data to her doctors. After a while, the device began to reach capacity quickly and would delete some of the information as it was programmed to do. The infant’s doctors said they did not receive some of the information they should have received, which proved to be the cause of the tragedy. The infant was again hospitalized and found to have permanent brain damage due to lack of oxygen. The parents alleged that this brain damage caused when the infant was being monitored by the breathing device.

The parents argued that the failure of the device to properly send information to the doctors caused the doctors not to perform surgery which would have prevented the brain injuries their daughter sustained. The equipment provider argued that the infant’s original injuries occurred before she was born and progressed to her current injury.

June 30, 2013

Car Accident Caused by Slow Merge Raises Legal Issue of Sudden Emergency Doctrine

by Berniard Law Firm

Car accidents can be difficult to navigate because of conflicting evidence, opinions and the fact the circumstances often lead the people involve rattled and unable to recall facts clearly. In a recent case, Bethany Dixon appealed a trial court judgment against her involving a vehicular accident that occurred on I-20 near Acadia in Bienville Parish. In part because Ms. Dixon could not recall exactly how the accident occurred, the court relied on the evidence put forth by the defendant, Charles Tucker, who rear-ended her as she merged onto I-20 from an on ramp. Mr. Tucker believed Ms Dixon was travelling at around 30 mph while he was travelling at the speed limit, 70 mph.

The trial court relied on the sudden emergency doctrine, which states that when a driver merges onto a limited access highway, the driver it merges in front of will not be liable if the lead driver created a hazard that could not be avoided. Here, the court accepted the narrative that Mr. Tucker rear-ended Ms Dixon’s vehicle because Ms. Dixon failed to signal or yield to oncoming traffic, and Mr. Tucker did not have enough notice to avoid the hazard Ms Dixon created. In addition, an eighteen-wheeler in the lane next to him prevented him from switching lanes.

Appealing a ruling is a risk, and is often a question of strategy. In this case, Ms. Dixon was unable to win the appeal in part because the Appellate Court was deferential to the trial court. Ms. Dixon claimed that the trial court erred in its factual findings, rather than legal findings, so the Appellate Court could not simply consider the case anew from start to finish. Instead, the Appellate Court could only reverse the lower court’s finding if the lower court did not have a sufficient factual basis for its findings. Here, the Appellate Court found a reasonable factual basis for the trial court’s outcome, and upheld its decision.

June 29, 2013

Louisiana Court of Appeals Affirms Judgment in Favor of Defendant Companies in Property Damage Lawsuit

by Berniard Law Firm

On February 27, 2012, a district court for the Parish of Lafayette ruled in favor of two defendants being sued by plaintiffs C.F. Kimball II and Linda R. Kimball for property damage. The first defendant, Luhr Bros. Inc. d/b/a Construction Aggregate, owns a shell yard across from the Kimballs’ property on the Vermilion River. The second defendant, Omni Marine Transportation, Inc., owns a vessel that made deliveries to the Luhr Bros. The Kimballs had asserted that both defendants had engaged in business activities that resulted in the destruction of a bulkhead belonging to and located on the Kimballs’ property. The defendants responded by saying that an exception to res judicata prevented the Kimballs from filing a lawsuit against both parties for such damages.

An exception to res judicata signifies that proceedings related to the same occurrence had already taken place and been concluded. Specifically, the defendants claimed that the parties had previously executed a Receipt, Release and Indemnity Agreement in 2002. The Kimballs acknowledged that such an agreement had been executed but claimed that the Release did not pertain to the bulkhead, which the Kimballs had only acquired in 2008. The Kimballs asserted that a Release could not be agreed to for property that was not even in existence at the time of the agreement.

The trial court ruled in favor of the defendants and dismissed the Kimballs’ lawsuit with prejudice, meaning that the Kimballs could not bring a new case on the same basis as the dismissed case. When a trial court rules in favor of the defendants on an exception of res judicata, any issue whose determination was essential to the judgment and already litigated is extinguished. Thus, the trial court found that the issue of destruction of property such as the bulkhead was essential to the proceedings that had already been litigated between the parties, that is, the proceedings that led to the production of the Receipt, Release and Indemnity Agreement.

June 28, 2013

Distinguishing Wrongful Death Claims from Exclusive Worker’s Compensation Issues

by Berniard Law Firm

Many experience the unfortunate circumstance of work related accidents, the most extreme of which may result in death. People often wrongly assume that sustaining an on-the-job injury guarantees a right to sue the employer, in addition to asserting workers’ compensation claims. However, the Louisiana Workers’ Compensation Act provides strict guidelines for remedying a work relating injury, even those that result in death.

A recent East Carroll Parish decision aims to clarify some of those common misconceptions. McNeil Harvey, an employee of MAPP, Inc. died when a piece of heavy farm equipment he was working under fell and crushed him. His daughter, Valerie Harvey, filed suit against both MAPP, Inc. and Joseph Brown, an officer of MAPP, Inc. Harvey alleged that MAPP, Inc.’s negligence in exposing McNeil to “ultra-hazardous” perils and assigning McNeil to work outside the course and scope of his employment was the cause of the accident and McNeil’s subsequent death. Ms. Harvey sought survivor’s damages and wrongful death damages.

The Louisiana Workers’ Compensation Act is the exclusive remedy for all work-related injuries and illnesses. If an employee suffers a personal injury as a result of fulfilling a job’s duties, the act provides the employee with compensation. The act also prevents an employee from filing a lawsuit for damages against his employer or any principal or any officer, director, stockholder, partner, etc. When such issues arise, the defendant employer bears the burden of proving that it is entitled to immunity under the statute. The employer must prove that (1) the victim was an employee within its company at the time of the accident and (2) the other named defendants are officers, directors, stockholders, etc. of the company. The only exception to the exclusive remedy rule is if a death or injury is the result of an intentional tort. Additionally, an employer must prove that the injury or death occurring during the course and scope of the victim’s employment.

June 27, 2013

Fall at Hospital Brings to Light Debate Over Liability for Public Entity

by Berniard Law Firm

Generally, if you are injured due to the fault of someone else, you are likely to have a legal claim. However, this is not always the case. You must prove additional elements if you are injured on the property of a public entity. A case involving the West Jefferson Medical Center helps explain these concepts.

A woman was on the way to visit a family member in the hospital when she tripped and injured herself on the sidewalk. One portion of the sidewalk near the parking garage was raised about two inches from the rest, and the woman caught her foot on the raised portion. She fell and suffered injuries to her foot, neck, and shoulder. Then, she filed a complaint against the hospital for damages related to her injuries. Her complaint included her medical records and photos of the raised portion of the sidewalk.

The West Jefferson Medical Center, in Marrero, Louisiana, is a public entity because it is state sponsored. As such, the woman needed to prove not only that she was injured, but also the additional elements that are required for a suit against a public entity. Requirements for suit against a public entity include: establishment that the thing that caused the damage was in the custody of the public entity, the thing was defective because it had a condition that caused an unreasonable risk of harm, that the public entity had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was in fact the cause of the plaintiff’s injuries.

June 26, 2013

Informed Consent Target of Lawsuit Involving Medical Malpractice Claim

by Berniard Law Firm

Medical malpractice occurs when a doctor or medical professional fails to competently perform a medical treatment and the patient is harmed as a result. One type of medical malpractice is lack of informed consent by the patient – doctors are required by law to inform their patients about the known risks involved for a proposed medical procedure or a course of treatment. When fulfilling this requirement is in question, litigation can become essential to analyze what happened.

While informed consent is not required in some situations, such as in an emergency, under most circumstances, doctors must give their patients detailed information about the particular procedure to be performed and explain the risks. Typically doctors ask the patients to sign an informed consent form to satisfy this requirement. After a patient gives his or her informed consent, the doctor cannot do what the patient has not consented to by doing a different surgery or performing additional medical treatment.

To better illustrate these points, a recent medical malpractice case examines the doctrine of informed consent: Ms. Boudreaux underwent a shoulder replacement surgery performed by Dr. Parnell to cure rheumatoid arthritis that severely affected her right shoulder joint. Following the surgery, however, Ms. Boudreaux developed radical nerve palsy that ultimately became permanent and disabling.

June 25, 2013

Tragic Workplace Accident Provides Insight Into Duty of Care

by Berniard Law Firm

A former employee of the Mansfield, LA, branch of the International Paper Company, met with a fatal accident while on the job. While repairing a valve on the platform surrounding the top of a whitewater tank, he fell through the access opening and into the tank.

Access opening covers are not rooted firmly to the tank and are known to become dislocated if the tank contains overpressurized liquid, or if the liquid and debris overflow. Evidence in the form of photographs show that debris had accumulated around the access opening that the deceased had fallen into, indicating that the opening may have been dislodged before he had fallen into the tank. As a result of the incident, the widow of the deceased filed suit against the manager of the Mansfield paper mill and the engineering company that designed and constructed parts of the whitewater tank that the employee fell into.

The engineering company, Stebbins, had a contract with International Paper Company to inspect the durability of its whitewater tanks at many of its locations worldwide. The inspections conducted by Stebbins brought knowledge that some whitewater tanks were over-pressurized and were overflowing. The victims’ family contended that Stebbins’ knowledge of this hazard created a duty on the part of Stebbins to inform the International Paper company of the unsafe practice. The issue, however, was that Stebbins had no such inspection contract with the Mansfield paper mill where the deceased met with his accident.

June 24, 2013

Liability When an Escaped Prisoner Injures an Innocent Community Member

by Berniard Law Firm

What sort of liability arises when an escaped prisoner causes personal injury to someone? It’s certainly not a typical question with which tort law deals. The matter arose in Acadia Parish, where prisoner Jack Stansberry escaped from a hospital, stole a vehicle, and injured plaintiff Nelwin Rider in the process. The trial court granted partial summary judgment in favor of the plaintiff, but the Louisiana Third Circuit Court of Appeal reversed.

The trial court considered summary judgment motions by both the law enforcement defendants and the plaintiff. Summary judgment motions are designed to ensure more efficient use of court resources by granting judgments when there are no genuine issues of material fact. The trial court found the law enforcement defendants solely at fault for plaintiff’s injuries and granted plaintiff’s motion. In reversing this judgment, the appellate court held that there were genuine issues of material fact as to whether the prisoner was in the process of escape when the plaintiff was injured. For this reason, the court of appeals said, summary judgment was not proper.

The matter before the trial court was one of negligence. Generally, courts are careful in such cases to lay down specific tests that must be met before assigning liability for injury. While recognizing the duty of prison custodians to act with care in managing prisoners, the appellate court affirmed that this is not an absolute duty intended to forego all potential harm. This duty “is not intended to protect persons from harm inflicted by inmates who have already escaped and who subsequently commit tortious acts in the furtherance of their own pursuits.” This important line, dividing a prisoner’s escape from subsequent activity, was drawn by previous court decisions and was critical to assessing the propriety of the trial court’s summary judgment ruling.

June 22, 2013

Prescription Exceptions Exist for Multitude of Cases

by Berniard Law Firm

Diving into complex legal issues is difficult but necessary. One particular example is the idea of prescription, or timing involved in filing a case. The exception of prescription is a limit on actions that may be brought, and has proven to be a successful defense. Peremptory exceptions may be asserted when the time for filing the type of claim involved has expired prior to the filing of the petition. The rules of prescription and peremption are set forth in the Louisiana Civil Code. This defense may be pleaded at any stage in the trial court proceeding prior to a submission, the burden is generally on the asserting party, and fact findings are reviewed under the error-clearly wrong standard.

An application of this defense can be seen in a recent case. Five inmates at the Louisiana Department of Public Safety and Corrections (DPSC) filed suit against the DPSC following an automobile accident, claiming negligence and failure to ensure medical treatment for injuries sustained. The defendants filed exceptions of lack of subject matter jurisdiction, improper venue, and prescription. The plaintiffs subsequently filed an amended petition asserting that the Corrections Administrative Remedy Procedure was unconstitutional.

The trial court found that the plaintiff’s claims had prescribed, with the exception of one plaintiff (whose prescriptive period was suspended from the time he filed his grievance until an agency decision was delivered). “Delictual actions are subject to a liberative prescription of one year [which] . . . commences to run from the day injury . . . is sustained.” “Prescription is interrupted when . . . the obligee commences action against the obligor in a court of competent jurisdiction and venue. If the court or venue is improper, then prescription is interrupted only as to a defendant served within the prescriptive period.

June 21, 2013

Dog Injury in Lafayette Leads to Examination of Liability

by Berniard Law Firm

The Court of Appeal of Louisiana, Third Circuit, recently ruled in the summer of 2012 on an issue coming out of the Parish of Lafayette involving a variety of legal questions. In the case of Theresa St. Julien v. Julie Walters Landry, Julien was allegedly injured by her neighbor’s dog when it came free from her neighbor’s yard and knocked her down while on her own property. Immediately there are negligence and strict liability issues when it comes to this event: Who owned the animal? Who secured the animal? Who was in charge of the animal at the time of the accident?

The St. Julien case is a perfect example of how a mishap in filing documents, leading to admitted facts, can result in the downfall of a defendant who assumes responsibility by not denying it. After failing to answer the plaintiff’s complaint on time, Landry admitted to being the owner of the dog and that it was being kept on her property under her control. The court found that there were genuine issues on multiple material facts and for that reason reversed the decision of the lower court in favor of St. Julien, which will result in a trial. The larger issue for the public is whether it even mattered if Landry was determined to be the dog’s owner.

Dogs are one of the most commonly owned domestic animals and also result in a large number of injuries throughout the state of Louisiana but also across the country. Many times these injuries occur to complete strangers but, nevertheless, owners of inherently dangerous animals need to be responsible for injuries resulting from the actions of those animals. The harder question is what is to be done when the animal injures another while in the care of someone who is not the owner. This is why the courts of this nation have adopted the theory of strict liability.