Litigation

July 10, 2013

Second Circuit Confirms that Employee Was At Fault in Personal Injury Lawsuit

Last August, the Second Circuit Court of Appeal upheld a ruling against plaintiff Dennis Quillian in a tort claim ensuing from a work-related injury in Pineville. At the time of the accident, Mr. Quillian was working as a truck driver for Swift Transportation Company, Inc., carrying paper manufactured by Georgia Pacific. Mr. Quillian’s job was to move the shipment of paper from Dixie in West Monroe to Plastipak, located in Pineville. Mr. Quillian was hurt when he went to unload the paper at Plastipak and was struck in the side by a bundle of paper. Mr. Quillian subsequently filed a lawsuit against Dixie.

In a personal injury lawsuit against an employer the main question is, who is responsible? If the employer failed to take a precaution or committed an act that was in breach of his “duty of care”, then the employer should be held accountable for damages caused to the employee. If the injury was the result of the employee’s own wrongdoing, and not the result of an unsafe work environment, then the employer will not have to compensate the employee for his injury. If the fault of the accident can be attributed in part to the employer and in part to the employee, then the employer can be held responsible for the employee’s injuries, but only up to the amount corresponding to his percentage of fault. So if an employer is found 60% responsible for a work accident, then he will have to pay for 60% of the employee’s damages.

In Mr. Quillian’s case, the issues that were in contention were whether any pertinent safety measures had been contravened and whether Mr. Quillian had assumed any risks associated with transporting the shipment. A contract regulation to ensure secure transportation stated that Dixie was to use Georgia Pacific air bags to secure the cargo being moved. Another safety measure was the use of load locks to secure the bundles of cargo, to ensure that the cargo would not fall out when the truck doors were opened; Georgia Pacific requires the use of two load locks. According to expert testimony, the air bags were meant to ensure the safety of the cargo, whereas the load locks are used to protect the driver from falling cargo. when opening the truck. Mr. Quillian agreed in his testimony that load locks are the main safety mechanism used to prevent cargo from falling out when the truck doors are opened.

July 5, 2013

No Contest Ruling Means Damages in Marrero Car Accident Case

by Berniard Law Firm

On May 8, 2007, in Marrero, Louisiana, two cars were sitting at the intersection of Ames and Lapalco Boulevards. One car carrying a couple sat ahead of a truck carrying one individual. The man driving the truck’s foot slipped off the clutch and the truck rolled into the back of the car. The couple said that the truck hit the car with such force that they jumped out of their seats. Their trunk and bumper had also been slightly pushed in, where there were no damages to the vehicle prior to the accident. The police arrived to document the accident and no injuries were reported on either side.

However, shortly after the accident, the couple experienced a variety of medical issues. While soreness and bruising is common after accidents, the couple experienced a much more serious version of injuries following the accident. The woman claimed roughly $13,000 in medical bills while the man claimed roughly $19,000 after the accident.

During trial, the man driving the truck admitted that this foot slipped off the clutch and he ran into the back of the car. Therefore, the court awarded a directed verdict that concluded that the man in the truck was 100% at fault, and therefore 100% liable, for the accident. The only issue that remained for the jury to decide was how much the couple should be awarded for damages. However, the jury came back with an award of $0.00 for the couple.

July 3, 2013

Car Accident Damage Award Increased in Monroe, Affirmed on Appeal

by Berniard Law Firm

The American justice system places juries in charge of some fairly weighty decisions. However, juries are not the final arbiter of a plaintiff’s rights. There are several post-verdict motions that can be made at the trial level as well as an entire system of appellate courts to which a plaintiff can turn if a jury verdict fails to satisfy.

Sheila Martin, an adult woman incapable of caring for herself, brought suit through her parents against the driver of the vehicle that struck Ms. Martin’s mother’s vehicle, thereby injuring Ms. Martin. The driver, Bruce Walker, conceded liability but no settlement could be reached as to the appropriate amount of damages. Trial proceeded on the issue of damages alone. The jury determined that Ms. Martin was entitled to $25,96.58 for medical expenses, $6,500 for past physical pain and $500 for past mental anguish. No damages were awarded for any future expenses or suffering, most likely because a doctor who had treated Ms. Martin signed a form indicating that she was back to pre-accident status and would not require any future care.

The plaintiffs, however, were not completely pleased with this verdict. They felt it was inadequate compensation for the totality of Ms. Martin’s injuries and as such filed a motion for what is called additur. Additur is an additional award of damages added to a jury verdict by the trial court judge. Judges are not permitted to engage in this type of change in the verdict in all states but Louisiana law allows for it. The judge in Ms. Martin’s case tacked an additional $17,000 on to her award citing Ms. Martin’s soft tissue injury as the reason for which she was entitled to recovery. The court broke down its additional $17,000 into $14,000 for past physical pain, $2,000 for past mental anguish and $1,000 for loss of enjoyment of life.

July 2, 2013

Summary Judgment and its Significant Impact in the Judicial System

by Berniard Law Firm

Is it possible for your case to be over even before it begins? Yes … well, sort of. Through what is known as summary judgment, it is possible for a court to render a decision in favor of one party and against another before there is a trial on the issue. You may be wondering, “What is the point of this?” and “Isn’t it only fair that I get my day in court?” Essentially, the purpose of summary judgment is to avoid unnecessary trials and litigation. It is important to note that although orders for summary judgment are common in civil cases, they do not apply in criminal cases because a criminal defendant has a constitutional right to jury trial.

According to a report researched by the Federal Judicial Center, 26% of all plaintiffs file motions for summary judgment, whereas defendants file 71% of all summary judgment motions. A judge may also on his or her own determine that summary judgment is appropriate. Nonetheless, orders granting summary judgment for defendants can have detrimental effects on plaintiffs who have sustained injuries, financial hardships, and who may have even lost a loved one. The adversity associated with orders of summary judgment can be shown in a recent case out of Jefferson Parish. Favre v. Boh Bros. Construction Co., L.L.C.

In Louisiana, summary judgment is appropriate if the declarations under oath, depositions, admissions of fact, and legal authorities show that there is no genuine issue as to a material fact and the party requesting the order is entitled to a judgment as a matter of law. A fact is considered to be a material fact if it is needed to prove one party’s case, or establishes a point that is crucial to a party’s position and success. Also, a genuine issue is an issue where two reasonable parties disagree. So, for example, if two parties could reach only one conclusion as to the dispute, then there is no need for a trial and summary judgment is appropriate.

July 1, 2013

Tragic Incident Involving Infant Demonstrates Assignment of Liability

by Berniard Law Firm

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.