Litigation

January 11, 2012

Louisiana Slip and Fall (Part I) – Procedure and Attorney Sanctions

The Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages. A second point of the case, and the first to be discussed, is the sanctioning of the city’s attorney for ‘wasting’ time in attempting to get an unnecessary Independent Medical Examination (IME) from a physician who was highly unattainable, and using this as an improper means to delay the proceedings. Also, the trial judge in this case was placed on the witness list, and the attempt to have the judge recuse himself was also determined to be used as an inappropriate manner for the city’s attorney to delay the proceedings.

A trial court’s judgment must be found to be clearly wrong or that there was an error in the law. Great deference if provided the trial court and the finders of fact because they are the parties, be it judge or jury, that has the greatest and most humanlike exposure to the witnesses. An appellate court, however, merely has documents pertaining to the facts and witnesses, but cannot personally observe the witness’ demeanor, truthfulness, etc. An appellate court determines if the judgment of the trier of fact was a reasonable one, not whether it was the correct one.

When asking the court for an IME, a party must show: 1) that the physical or mental condition of the party sought to be examined is in controversy, and 2) that good cause exists for requiring the party to submit to the examination. In determining if an IME is proper, a court has wide discretion and should determine whether to allow for one on a case by case basis. Courts will consider whether the physical/medical information can be attained by other means, and that a treating physician should be given greater weight than a physician who only examines a patient a couple times or even just once. Continuances for IMEs are discretionary and may be granted if there is good ground for one. La. Code Civ. Proc. Ann. art. 1601.

January 9, 2012

Real Estate Agent Not Liable for Defect in Alexandria Case

by Berniard Law Firm

Paul and Anna Moreau thought they were buying a house with a 10-year-old roof. After they moved in, they learned that the roofing tiles were so old that they were no longer made. Their claim against the real estate agent, who represented both sides in the sale, failed at the trial court. In Moreau v. McKenzie, No. CA 11-197 (La. Ct. App. 3 Cir. 10/5/11), the court of appeal agreed with the trial court’s dismissal of claims against Kelly Ducote, stating the real estate agent was not liable for failure to disclose defect in sale of house in Alexandria because the agent did not know the seller’s statement was misleading.

The Moreaus purchased the home in Alexandria, La., from Mary McKenzie and Priscilla Goudeau. Ducote was agent for both buyer and seller. The property disclosure form that the Moreaus received said that the house’s roof had leaked in the past, but it was replaced in 1998-99 with “all new decking & felt replaced with 70 yr. clay tile.” A home inspection indicated that the roof was six to ten years old. The inspector found nothing serious. The sale closed. Sales documents warned that the sale was “as is” and without warranty, and Ducote made no warranty on the house or its condition.

When the Moreaus tried to repair a few broken roof tiles, “they learned that the tiles on the roof had not been manufactured for several decades, meaning the entire roof had not been ten years old as they had previously thought.” Only the underlying deck and felt had been completely replaced. The old tiles had been reinstalled over the new deck and felt.

January 7, 2012

Dishonest Attorney Helps Illustrate Need to Hire Representation Carefully

by Berniard Law Firm

Paul Breaux, an employee injured on the job, hired an attorney to represent him in a personal injury suit against his employer, Jade Marine. Unbeknownst to Breaux, the company settled the matter out of court. A check in the amount of $60,000 was sent to the attorney, which was immediately forged and deposited into the attorney’s IOLTA account at Gulf Coast Bank. After about fourteen months, Breaux finally learns of this despicable action by the attorney and files a claim against the bank for conversion. Specifically, the action was for check conversion or conversion of a negotiable instrument.

However, Breaux hit a wall when the defendant raised the exception that the statute of limitations for such a claim under La.R.S. 10:3-420 is strictly one year. Accordingly, Breaux appealed, arguing that the defendant’s exception was ineffective based on the doctrine of contra non valentem, specifically that “a prescription does not run against one who is unable to act.” Breaux emphasized that he was not equipped to discover what his attorney did, as he was under the impression that his case was ongoing. The court was not convinced.

Breaux sought the support from the case of Marin v. Exxon Mobil Corp., 09-2368, 09-2371(La. 10/19/10), 48 So.3d 234, which outlined four situations when contra non valentem (doctrine outlining prescription and when an individual knows the clock of liability begins) applies to defeat prescription. The fourth and most difficult category, known as the “discovery rule,” is where Breaux saw an opportunity. Under this exception, a plaintiff’s claim is not barred when the statute of limitations has run if the defendant has acted in fraudulent concealment.

January 5, 2012

Family Business Suit in Beauregard Parish Illustrates Dismissal Principles

by Berniard Law Firm

Alan Kite had many disagreements with his father as the two separated from their business relationship. Alan said that his father had harmed his reputation, that his father had discharged Alan to retaliate against him, and that Alan had relied on his father’s promises to his detriment. Alan had other disputes, but the 36th Judicial District Court, Beauregard Parish, saw disputed facts that required more consideration than dismissal by a motion for summary judgment. The Louisiana Court of Appeal agreed with the district court’s decision to dismiss some of Alan’s claims in Kite v. Kite Bros., No. 11-334 c/w 11-335 (La. Ct. App. 3 Cir. 10/5/11).

Alan Kite had worked in the Kite Brothers recreational vehicle dealership since the 1980s. He did well, earning more than $200,000 a year, as set by his father, Robert Kite. Alan wanted more. He agreed with his brother, Jeff, to raise their salaries, as much as triple the salary for Alan, and to take 10% of the business revenues. The chaos from Hurricane Rita hid this action temporarily, but the father learned about it a few months later in January 2006. The sons quit, or were fired, from the dealership. Alan took business papers with him. The sons sued their father and the business and set up their own competing RV dealership. The brothers fought over control of their own dealership, and Jeff reconciled with his father. Jeff dismissed his claims against his father.

Robert Kite tried to have dismissed more of the claims against the business. The trial court agreed in part. The trial court’s decision does not affect other claims that Alan still has against his father’s business. Alan claimed that his father had damaged his reputation by calling him a “thief” and a “liar.” The district court dismissed the claim. It concluded that “the fact that Alan did what any reasonable person would see was stealing would be a complete defense to the action for defamation.”

January 3, 2012

Family Feud Demonstrates Appealable Judgements in Court Case

by Berniard Law Firm

As sons of an owner of a successful recreational vehicle business, Alan and Jeff Kite worked in the family business of Kite Brothers. The relationship went sour between father and son. The children gave themselves raises and later left — taking some business records with them. But, Alan Kite’s claims, such as defamation, retaliatory discharge, and detrimental reliance, against Kite Brothers didn’t hold up at trial court or the court of appeal. In Kite v. Kite Bros., No. 11-334 c/w 11-335 (La. Ct. App. 3 Cir. 10/5/11) the court of appeal affirmed the 36th Judicial District Court, Beauregard Parish after it determined that the trial court had rendered a final judgment on those claims.

Family businesses create unique disputes of a personal nature. Robert Kite co-founded the dealership with his brother in 1961. It began as a corporation but was changed to a limited liability company in 1998. During the 1980s, Robert Kite hired his sons Alan and Jeff. Although he never signed an employment contract, Alan had broad powers in the business to write checks on the company account. The father believed that he was being generous to son Alan, who earned more than $200,000 a year. But, the father set the salaries. Hurricane Rita in September 2005 provided a diversion for the sons to decide, on their own, to raise their salaries. Alan agreed with his brother to take more than triple his previous weekly salary, which had been set at $1,500 a week. They also agreed to take a 10% cut of all revenues. They agreed that this arrangement would end when “everything settled down after the storm.”

They didn’t stop. The father noticed the increased unauthorized compensation to Jeff in January 2006. He demanded that Jeff return his salary to its authorized level. The father also revoked both sons’ authority to write checks and canceled their credit cards. Alan continued to give himself a weekly salary of $5,000 instead of $1,500. Later that month, the sons left the business. Father and sons disagree whether Alan and Jeff quit or were fired. Alan took with him, also without permission, business papers owned by the business. The father sought them back by filing a criminal complaint. Alan assured an investigating police officer that he would return the records, but he never did. Alan’s lawyer later returned some of them.

December 21, 2011

Lake Charles Casino Resort Security Guards Found Not To Have Used Excessive Force

by Berniard Law Firm

It is not uncommon in casinos for patrons to become intoxicated to the point that they are unsuitable for public. For this reason, casinos implement security procedures to deal with intoxicated patrons. Most of these procedures involve cutting the patron off from alcohol and, in some cases, even removing the patron from the premises. Sometimes, however, intoxicated patrons who are confronted by casino security become unruly. In these situations, when patrons are forcibly removed from the establishment, the amount of force that can be justified in the removal becomes an issue.

In Miller v. L’Auberge Du Lac Casino, two intoxicated patrons were cut off from alcohol by casino security.Since the patrons were not allowed to gamble if they were unable to drink, the two patrons were asked to leave. When one of the patrons tried to take a picture with her cell phone in a photography prohibited area, a security guard took the phone away, resulting in a scuffle. Both patrons shouted profanities at the security guards and one patron grabbed a security guard by the neck, resulting in cuts and scrapes. In response, the security guard took the patron to the ground and handcuffed him.

The plaintiffs, the two patrons, took the confrontation to court, claiming that the security guards had used excessive force in the removal. The patron who was taken down claimed to have been punched in the face and that one of the security guards jumped up and down on his legs. Video shown at trial, however, showed no evidence of such conduct. Based on this video and expert testimony, the jury found for the defendants.

December 19, 2011

Alexandria Man’s Gastrointestinal Injuries Not Presumed To Have Developed From Defendant’s Negligence

by Berniard Law Firm

When an individual files a claim for negligence several factors must be proven to succeed against a defendant. These factors state that, in order for negligence to exist, a defendant must owe the plaintiff a duty, breach that duty, be the actual cause of that breach, be the proximate cause of that breach, and the breach must result in actual harm to the plaintiff. Often, however, questions arise in negligence disputes when the cause of a plaintiff’s injury cannot be proven. One of the most controversial of these issues is presumption; whether or not the injury should be assumed to have occurred from the defendant’s breached duty. This was the main issue contended in Jones v. Brookshire Grocery Co.

In this case, Jones suffered from gastrointestinal afflictions after eating chicken strips that contained metal flakes from the defendant’s store. At trial, the court found that although Mr. Jones’s condition did not appear until after his consumption of the contaminated food, it was just as likely that his condition, which usually takes several years to develop, was already present prior to the incident. Therefore, Jones was awarded damages for his anxiety, but nothing for damages related to the gastrointestinal condition. On appeal, Jones contended that Housley, a leading negligence case, should apply in support of his position. Housley states that:

A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.(Housley, 579 So.2d 973 at 980)

December 15, 2011

Summary Judgment on Sand Built of Solid Foundation by Louisiana’s Third Circuit

by Berniard Law Firm

Summary judgment can seem like a punishment to the defeated party. Because of the final nature of these judgments, appellate courts review them de novo. This standard of review grants the appellate court the ability to look at the entire record in the court below. The Bates family experienced an additional loss at the appellate level in Bates v. E. D. Bullard Company. They lost at the trial level as a result of a summary judgment and was later affirmed on appeal.

When a judge grants a party a summary judgment he or she is in effect saying that the opposing party has no case as a matter of law and that there will not be a trial. The party that has been defeated will, however, be able to appeal this decision to the higher court. De novo review is necessary when appealing a summary judgment so that the appellate court can make the most educated decision about whether the winning party deserved a summary judgment. This level of scrutiny is higher than most.

In the case in question, it was determined that the plaintiffs did not establish a case as a matter of law against the sand defendant for several reasons. Sand is not a dangerous instrumentality; there is nothing about sand’s very nature that makes it explicitly dangerous or harmful. The defendant sold the sand to the ill plaintiff’s employer, deemed by the court to be a sophisticated user. If a buyer is sophisticated, there is no duty on the part of the manufacturer to warn the buyer of possible ill effects of certain uses of a product. This is true even though the seller likely knew or should have known that the sand would be used for sandblasting. The sand defendant’s knowledge, real or constructive, did not bear on its lack of a duty to warn the sophisticated user buyer because there was no real way of telling what the buyer would do with the sand.

December 13, 2011

New Orleans Shooting Leads to Wrongful Death Action

by Berniard Law Firm

Under Louisiana law, a defendant has no specific duty to protect a person against the harmful acts of a third party unless the defendant has a “special relationship” with the victim or some independent accountability for the third party. The concept of respondeat superior refers to the legal construct that an employer is responsible for the actions of its employee, so long as the actions occur in the course and scope of employment. This legal principle can be extremely valuable to plaintiffs who are unable to recover much if anything from an individual employee who commits harm; the vicarious liability of the employer can allow a plaintiff to recover from a presumably deeper-pocketed employer, as well.

Establishing vicarious liability can prove tricky, however: liability does not attach when the “employees” is an independent contractor. Under Louisiana law, “determining whether [an employer-employee] relationship exists, the major consideration is the control or right of control which one party exercises over the other.” See Savoie v. Fireman Fund Ins. Co. Thus, the court “may examine the economic relationship of the parties and the right of one party to control the time and physical activities of the other.”

Blanchard v. Ogima. In the recent case of Irving v. Rubens, for example, the plaintiffs attempted to establish an employer-employee relationship to reach an additional defendant. In 2008, Ray Manning engaged Richard Rubens to repair flood damage to his house on Prieur Street in New Orleans. Rubens was working on several other houses in the area at the time, and so he hired Robert Irwin as a foreman to oversee his several construction crews. Over the weekend of June 28, an altercation between Rubens and Irwin occurred at Manning’s residence. Ultimately, Rubens shot and killed Irwin.

December 11, 2011

Inadequate Medical Care and the Legal Ramifications Capable of Causing Life-Changing Problems

by Berniard Law Firm

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, unfortunately, times come when the expected level of care fails to come to fruition, and an action for medical malpractice arises. In March of 1993, a Tallulah, Louisiana, resident began a series of trips to doctors in hospitals in which his continued back, shoulder, and neck pain eventually led to lung cancer. The Tallulah, Louisiana resident, Mr. Kerry Scarborough, died 2 years later in March of 1995.

For a malpractice claim against a hospital, plaintiffs like Mr. Scarborough’s mother, suing in her son’s name, must prove by a preponderance of the evidence first, that the defendant owed the plaintiff a duty to protect against the risk involved, essentially providing a standard of care that the plaintiff was owed, second, that the defendant breached that duty or standard of care, and third, that the injury was caused by that breach. A hospital can be sued for its own negligence (such as failure to keep its facilities clean), or under a theory of vicarious liability, in which a plaintiff alleges that the hospital is liable for the negligence of one of its doctors. Of course, a medical malpractice action can be extended to any health care provider, including dentists, nurses, hospital workers, physical therapists, radiologists, and more.

Louisiana revised statute 9:2794 provides the statutory language laying out the plaintiff’s burden for a general malpractice action. The plaintiff must prove how much knowledge or skill or how much care that physicians licensed in Louisiana normally exercise in similar locations and situations. Furthermore, the plaintiff must prove that if the defendant physician specializes in a particular field, and if the allegedly negligent acts within that specialty raise unique issues, then the plaintiff must prove how much care that physicians in that specialty normally exercise. Additionally, the plaintiff must prove that the defendant did not have the knowledge or skill, or did not exercise reasonable care, diligence and best judgment in using his or her skill. Moreover, the plaintiff must prove that the plaintiff suffered injuries that were the proximate result of the defendant’s absence of the knowledge and skill, or the absence of reasonable care.