Litigation

September 27, 2012

Choice of Law: Wrongful Death Case in Amelia, LA Uses Louisiana Law

As you may know, different states have sometimes very different laws. Laws are overall somewhat similar, but small discrepancies between state laws will matter a great deal in a lawsuit. The most common example of this type of conflict occurs when an individual has been injured in one state, usually while traveling, and actually lives in another state. Whose law applies in that situation? Naturally, the states have come up with a generalized test for the court to consider.

The test is usually referred to as the “significant relationship” test. The court will determine which state has the strongest connection to the lawsuit. It will consider factors such as where the injured party lives, where the injury occurred, who caused the injury, and where the causing party lives. Where the injury actually occurred is important because witnesses and evidence will be gathered from the scene. If those witnesses and evidence have to be transferred to another state, then the trial may become a lot more time consuming and expensive for both parties. In order to maintain efficiency, the court will weigh the location of the incident heavily.

In February of this year, the Fifth Circuit Court of Appeals considered a case where choice of law was a major issue. In this case, an individual was killed as he was being transported in a helicopter to an oilrig in international waters off the coast of Louisiana for employment purposes. The helicopter hit a bird and went down, killing eight of the nine people that were in it. The crash was attributed to a product defect.

September 25, 2012

Taser Death Explored in St. Martin Parish Case

by Berniard Law Firm

In our prior post, we began our review of a wrongful death action that followed the tasering of Othello Pierre by two St. Martin Parish Sheriff’s deputies after he caused a disturbance at a Fourth of July party and attempted to flee the scene. We now examine the approach taken by the U.S. Court of Appeals for the Fifth Circuit in analyzing whether the deputies’ use of the taser amounted to unconstitutionally excessive force.

According to the court, an excessive force claim under the Fourth Amendment “must demonstrate (1) injury, (2) which resulted directly and only from a clearly excessive force, and (3) the excessiveness of which was clearly unreasonable.” In order for the Plaintiff to be successful in this wrongful death action, it is essential that all of these three requirements articulated by the court are met. If even one of the prongs to an excessive force claim are not met, then the Plaintiff will ultimately fail in his action.

In the case of Mr. Pierre, the court concluded that the Plaintiff’s claim “fail[ed] on the second prong” because they offered no evidence to show that Pierre’s injuries–and, by extension, his death–were the direct result of the tasing. Thus, in the court’s view, Pierre’s death did not result directly from the tasing; therefore, he did not meet all the explicit requirements for an excessive force claim. By not meeting the second requirement, the question of whether the tasering was reasonable in the first place was effectively moot.

September 23, 2012

St. Martin Parish Police Tasing Leads to Wrongful Death Suit

by Berniard Law Firm

On July 4, 2008, Othello Pierre attended a party at his uncle’s house in St. Martin Parish. Pierre’s uncle called 911 when Pierre got into a violent argument with a cousin. Two deputies with the St. Martin Parish Sheriff’s Department responded. A third deputy and distant relative of Pierre was also at the party; she informed the two deputies who responded to the 911 call that she suspected there may be warrant out for Pierre’s arrest. The deputies ran Pierre’s name and confirmed that he had an outstanding felony arrest warrant for burglary. When one of the deputies attempted to place Pierre under arrest, he broke away and fled the scene. The two responding deputies pursued Pierre on foot and soon found him hiding behind an old camper shell. Though ordered not to move, Pierre again attempted to run away, at which point one of the deputies fired his taser. The taser barbs hit Pierre in the arm and the head, shocking him with a single five-second cycle. An ambulance took Pierre to the Lafayette General Medical Center where he died approximately three hours later. The autopsy revealed that Pierre’s death was the result of “multidrug intoxication” from substances such as methamphetamine, THC, cocaine, alcohol, caffeine, and nicotine.

Narra Batiste and other members of Pierre’s family filed a civil action against the St. Martin Parish Sheriff and the deputies for the wrongful death of Pierre, alleging, among other things, that the deputies’ use of the taser was an unconstitutional use of deadly or excessive force. The district court heard motions for summary judgment on several issues, including the deputies’ motion to dismiss the claim of excessive force. The court denied the deputies’ motion, and appeal was taken in the U.S. Court of Appeals for the Fifth Circuit.

The Plaintiffs relied on two paths to argue that Pierre’s tasering amounted to an unconstitutional use of deadly force. First, the Plaintiffs cited a Supreme Court case that held it was unlawful to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to a police officer. Because that case concerned the use of a gun and not a taser, however, the court rejected its applicability. The court noted that no Fifth Circuit cases equated the use of a taser to the discharging of a firearm, and it declined to be the first. Second, the Plaintiffs argued that the deputy’s use of the taser while running violated the Sheriff Department’s policy and was contrary to the taser manufacturer’s guidelines for safe use. Yet, in the court’s view, the Plaintiffs failed to demonstrate that the use of the taser in the manner they described created an unreasonable risk of death. The court pointed to a dispute over whether Pierre was actually running when the taser was deployed, and concluded that “Plaintiffs’ assertions that the use of a taser on a fleeing suspect amounted to deadly force [were] unfounded.”

September 19, 2012

How Louisiana Determines Damages for Personal Injury

by Berniard Law Firm

When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant’s actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim’s injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

September 17, 2012

Wife’s Interests Not Represented by Attorney in Pre-Divorce Collusion

by Berniard Law Firm

Officers of the Court are expected to follow a specific level of professionalism and truthfulness that trumps any personal feelings they have on a case. One unfortunate case highlighted today involves the dissolution of a 22-year marriage and the unfortunate deceitful behavior of the husband and his attorney. Unbeknownst to the wife, the husband filed a petition for divorce on August 9, 2006. On that same day, the husband convinced his wife to meet at his attorney’s office to discuss a settlement of the community property. The wife was under the impression that the attorney was a neutral party, helping the couple come to a fair division of their property. However, things were not as they appeared.

The husband and wife signed an agreement partitioning their community property at the meeting along with a quitclaim deed for their real estate. A few days later, the couple returned to the attorney’s office and re-executed the documents in the presence of two witnesses for formality purposes.

When the wife became aware of the scheming on the part of her husband and the attorney, she immediately filed a suit in the trial court to rescind the agreement based on error, fraud, duress and lesion. The trial court rendered a judgment in favor of the husband and the wife appealed, bringing us to the case-at-hand.

September 14, 2012

Wrongful Prosecution Case Highlights Appeals Process

by Berniard Law Firm

In 2005, a New Orleans detective investigated a case regarding a robbery and shooting at a local meat market. An armed assailant was seen fleeing the scene of an attempted murder. After investigation and contact with the Federal Bureau of Investigation, a man was arrested who was known simply as “Mohammad.” This man was held for two years before the charges against him were dropped. As soon as he was released, the man filed charges against the detective and the City of New Orleans for violation to the right to due process and malicious prosecution for the attempted first degree murder that had taken place in 2005.

Mohammad alleged that his due process rights were not being respected because he believed that the detective used false evidence to hold him for trial. The right to due process comes from the Fifth and Fourteenth Amendments to the United States Constitution. Due process involves the rights to a fair and speedy trial as well as the right to be notified of the charges against you and the right to be heard in a court of law.1 Presumably Mohammad’s claims were based on the assumption that if the detective was attempting to convict him on false witness testimonies then the trial could not be fair by definition.

The United States District Court for the Eastern District of Louisiana heard the case and many witnesses were presented on either side. Witnesses who saw the attempted murder that day described someone who fit Mohammad’s description and one witness even identified him directly. Evidence was also submitted regarding the detective’s investigation of the case, including the fact that he interviewed a number of witnesses and worked with the FBI in this case. Mohammad presented a single witness who described a man who did not fit Mohammad’s description and another individual who stated that Mohammad was with him the entire day. Mohammad claimed that the statements and witnesses presented by defendants were created by the detective in order to get a conviction for this case. Nonetheless, the jury at the District Court level found for the City of New Orleans and the detective.

September 12, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages (Part 2)

by Berniard Law Firm

This post is a follow up regarding the worker’s compensation claims in a maritime case previously discussed in “Maritime Injury: The Jones Act.” The Fifth Circuit Court of Appeals also addressed the complicated worker’s compensation aspects of this case in addition to the rejection of the use of The Jones Act in the injured party’s attempt to avoid an employer’s contributory negligence claim. In order to fully understand the worker’s compensation aspects of this case, it is important to consider some additional facts of the District Court’s decision.

As a reminder, a crane mechanic employed by a third party was injured on an oil rig due to the partial negligence of himself and the owners of the rig. He fell through an uncovered ladder from the top portion of the crane cab and was seriously injured when he landed on the deck below. After his injury, the employee was no longer able to work as a crane mechanic but remained an employee for his previous company.

While the injured man was unable to work as a crane mechanic, his employer gave him a clerical position and paid him significantly more than someone in a clerical position would earn. His employer continued to pay him the wage he earned as a crane mechanic and although he only worked approximately twenty hours a week, his employer paid him for fifty-five hours per week. The lower court determined that this dramatic increase in wages for the work done could be considered an advance of worker’s compensation benefits. They based this determination on the original intention of the employer. The Court of Appeals affirmed this decision by stating that the lower court had ample evidence to make this conclusion.

September 10, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages

by Berniard Law Firm

The Court of Appeals for the Fifth Circuit addressed an injury case that involved a crane mechanic who was injured on an offshore drilling rig. The man was injured when he fell through an uncovered ladder hole on the top portion of the crane cab which was about fourteen feet above the deck of the rig. As a result of his injuries, he is now unable to work as a crane mechanic, but he has returned to work in a clerical capacity for the company in which he was working for previously. The two parties in this case are the employee and the owner of the rig on which he was injured; however, this case is complicated because the employer is also involved in the worker’s compensation claims.

This case involved a cross appeal where both parties appealed some part of the lower court’s decision. There were a few issues that arose in this case that that Court of Appeals addressed. This case touches on the Jones Act and considers the concept of contributory negligence. This case is also based on the Longshore and Harbor Worker’s Compensation Act so it affects the employer and their insurance company as well. This post will present the basic facts of this case and discuss the Jones Act. A follow up post will address the worker’s compensation aspects of the court’s decision.1

The employee appealed based on the claim that that he did not contribute to his own injury by being careless. This concept is generally known as contributory negligence. He also argued that even if he was partially responsible, the Jones Act protected him from being punished for his contribution to the injury. The owner of the rig appealed based on the claim that they were also not partially negligent. The Fifth Circuit Court of Appeals considered all of these issues in turn and affirmed the lower court’s judgment. The court states that both parties were partially negligent in this case; the owner of the rig left open the cover through which the employee fell and the employee was not watching where he was going, thus contributing to his injury.

September 7, 2012

Trip and Fall at Metarie Carwash Leaves Plaintiff All Wet

by Berniard Law Firm

On September 9, 2008, George Alonzo visited the Safari Car Wash on Veterans Memorial Boulevard in Metarie. While exiting the restroom in the car wash’s waiting area, Alonzo fell and sustained injuries. In a lawsuit against the carwash, he alleged that he slipped in a puddle that had been caused by employees’ tracking in water from the carwash facilities.

Under Louisiana law, Alonzo shouldered the burden of proving three key elements: 1) the condition that existed on the car wash’s premises presented an unreasonable risk of harm and that the risk was reasonably foreseeable; 2) the car wash either created or had actual or constructive notice of the condition which caused the risk; and (3) the car wash failed to exercise reasonable care in remediating the condition. Constructive notice means that the condition existed for such a period of time that it should have been discovered if the car wash’s employees had exercised reasonable care.

Alonzo’s complaint was dismissed by the trial court on the car wash’s motion for summary judgment. Alonzo appealed to the Fifth Circuit Court of Appeal for the State of Louisiana, which affirmed the dismissal. Upon review, the court noted that Alonzo failed to prove that an unreasonably dangerous condition caused his fall. During his deposition, when asked what caused his fall, Alonzo responded, “I guess the floor was damp. I didn’t really see it, because I–you know, I wasn’t looking down when I walk.” He stated further that he assumed the floor was wet, but that he did not look on the floor after the fall to see what he would have slipped on, even though his pants, socks, and shoes were wet. Alonzo also contended that the waiting area’s concrete floor was hazardous because there were no carpets or non-slip mats, and the car wash employees were permitted to enter the waiting area in wet clothes and shoes. The court concluded that “Alonzo… was unable to identify the condition of the floor in defendant’s premises on the date of the fall,” and the circumstantial evidence he offered was insufficient to meet his burden of proof.

September 5, 2012

Security Breach Case Fleshes Out Requirements for Successful Suit

by Berniard Law Firm

It seems that in such a technologically dependent society, where digital information is everywhere, unauthorized access to computer databases (commonly referred to as “hacking”) is an all too common occurrence. However, as the recent Third Circuit decision in Reilly v. Ceridian Corp. illustrates, a company’s security breach that results in the exposure of hundreds of individuals’ personal information does not necessarily result in an automatic “harm” worthy of compensation.

In Reilly v. Ceridian Corp., Ceridian Corporation was a payroll processing firm. In order to process its customers’ payrolls, Ceridian collected personal information of its customers’ employees, which in some instances included an employee’s name, address, social security number, date of birth, and bank account information. One of Ceridian’s customers was the Brach Eichler law firm, where the plaintiffs, Kathy Reilly and Patricia Pluemacher, were both employed. On December 22, 2009, disaster struck when an unknown hacker infiltrated Ceridian’s records systems. While it is unknown whether the hacker read, copied, or understood the data he or she had access to, it was clear that the hacker potentially gained access to the personal and financial information of approximately 27,000 employees, including Reilly and Pluemacher. Ceridian contacted the potential victims to inform them of the situation, but for Reilly and Pluemacher, contact from Ceridian was simply not enough. Reilly and Pluemacher filed a claim in the United States District Court for the District of New Jersey on behalf of all of Ceridian’s potential victims. Reilly and Pluemacher claimed that the security breach made them susceptible to an increased risk of identity theft, and required their additional time and money to monitor their credit activity. The District Court, however, granted Ceridian’s motion to dismiss, stating that Reilly, Pluemacher, and the other potential victims’ claims did not have standing for failing to address a “case of controversy.” The Court of Appeals for the Third Circuit affirmed.

The Third Circuit agreed that the potential victims failed to establish adequate standing under Article III of the Constitution to bring their claim to federal court. Article III limits federal courts to only hear actual “cases or controversies” that might arise. Part of that requirement is a showing of “injury-in-fact,” or what the Supreme Court described in Danvers Motor Co. v. Ford Motor Co. as an invasion of a legally protected interest that is (1) concrete and particularized, and (2) actual or imminent, not conjectural or hypothetical. The Third Circuit felt that the potential victims’ allegations were too speculative. In order for the potential victims’ claim to adequately have standing, the court would have to assume that the hacker had actually read, copied or understood the personal information, had intended to commit future criminal acts by misusing the information, and had the capabilities of making unauthorized transactions with that information. Without these facts, no harm was suffered and, thus, no claim existed.