Articles Posted in Miscellaneous

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The essential elements necessary to form a binding contract are usually described as: (1) an offer, (2) an acceptance, (3) a legal purpose or objective, (4) a “meeting of the minds,” (5) consideration, and (6) competent parties. Ambiguities typically arise with offers and acceptances that often lead to litigation. An offer is generally defined as the manifestation of the willingness to enter into a deal so as to justify to another party the offeror’s assent to the deal. Although an acceptance of an offer can occur in several ways, it is most typically described as the assent to the terms made by the offeror. In a recent case in Lake Charles, Louisiana, a finding made by a trial court that an offer and acceptance were ambiguous is under appeal.

On December 13, 2006, a woman robbed Jalil Abushanab as he was about to enter the Isle of Capri Casino in Lake Charles. While attempting to chase the woman, Mr. Abushanab was struck by an SUV and suffered bruises, abrasions, and a broken hip. After Mr. Abushanab’s death in early 2008, his surviving spouse and ten children were substituted as party plaintiffs and asserted claims against the Isle of Capri Casino for wrongful death and survivor damages. In May of 2011, the Isle of Capri Casino filed a motion for summary judgment seeking to dismiss the plaintiff’s claims for lack of liability. But on August 6, 2011, before the hearing, the casino made a written offer to the plaintiffs seeking to settlement the matter for $250,000.00. Prior to the hearing, the plaintiffs accepted the casino’s offer with a signed acceptance letter.

On October 6, 2011, a trial court ruled in the plaintiffs favor and agreed with their motion that the offer made by the casino was exclusive of medical and statutory liens and court costs. At that time, Mr. Abushanab’s family was awarded a lump sum payment of $250,000.00, plus any Medicare/Medicaid liens, a lien on behalf of a drug company, and court costs. Accordingly, Isle of Capri Casino appealed, contending that the trial court was legally incorrect in its finding and that based on the law and on the totality of the circumstances, the offer and acceptance were ambiguous. The casino contends that not only did the trial court err in refusing to consider the casino’s intent when it made the offer, but that the court erred in concluding that there was a “meeting of the minds” and that the parties had reached a compromise agreement.

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General damages are defined as those that involve mental or physical pain, inconvenience, loss of intellectual gratification or physical enjoyment, or other losses that can not be measured in monetary terms. In determining an award of general damages, the Louisiana Supreme Court advocates deference to the lower court, and intervention by an appellate court only in the case of clear abuse of discretion. In a recent case, a plaintiff filed a personal injury claim when she was struck in her car by another driver (the issue of sole liability was not appealed by that driver or her insurance company).

The trial court awarded $25,000 in general damages for injuries sustained by the plaintiff to her knees as a result of the accident. Although she also suffered a back and shoulder injury, she only sought damages for her knee injury, and the court considered evidence accordingly. The plaintiff argued the court erred in awarding too small a sum for general damages for her knee injuries, and for not awarding general damages for her back injury. The trial court’s decision was subsequently affirmed.

The primary medical information in this case was found in the testimony of the plaintiff’s long-time physician. He noted that although she was referred to therapy and diagnosed with a back sprain, she had other problems that did not relate to the accident. She was discharged from therapy because she did not attend sessions with any regularity, and had inconsistently reported that her knee pain was “bearable.” He further testified that the accident had aggravated arthritis in her knee and back, but that this was a pre-existing condition. Additionally, she had been on prescription medication for back pain long before the accident, had filed for Social Security Disability 13 years prior, and had even been involved in other automobile accidents both before and after the accident in question.

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After a traffic stop in Shreveport, Louisiana, a man was arrested by two officers. The man had thrown liquid at the car behind him before he was pulled over. During the arrest, the two officers repeatedly grabbed and tasered the man. Eventually, they realized that the man’s elbow had been dislocated and called for medical assistance. Because of the injury, the man had to undergo multiple surgeries and was ultimately left with permanent disabilities in his left arm and hand. In light of this, the man claimed that the officers used excessive force during the arrest.

The injured man brought suit against the police officers as well as other defendants, and ultimately the trial court granted the motion of summary judgment filed by the defendants, ruling against the injured man. When appealing this decision, the injured man brought two main claims: 1) that the district court erred by granting the two police officers qualified immunity with regard to the excessive force claim; and 2) that the district court erred by dismissing the constitutional claim he brought against the head of the police department and the city for not implementing a proper policy for off-duty cops (one of the cops involved in the arrest was off-duty at the time).

With regard to the first claim, public officials (e.g. police officers) are allowed qualified immunity on summary judgment unless two requirements are met: 1) the plaintiff produces sufficient evidence to raise a genuine issue of material fact as to whether the conduct actually violated a constitutional right; and 2) the actions of the officers were objectively unreasonably in light of the relevant law at the time. In this case the Fourth Amendment provides that excessive force during an arrest is impermissible. However, according to the Supreme Court, every arrest requires the right to use some force, especially if the suspect is a threat to the officers or is resisting arrest. So, did the police officers use force that was clearly excessive and clearly unreasonable?

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When an accident occurs at someone’s place of work, the injured party can hold the employer responsible in certain circumstances, under the legal concept of vicarious liability. This doctrine provided relief for Kenneth and Pamela Porter in a recent Fifth Circuit Court of Appeals case arising out of Avondale, Louisiana.

In Porter v. Fulkerson, the accident occurred at the office of a Navy project that was staffed by personnel from a variety of entities, including subcontractor John J. McMullen Associates (“JJM”). The workspace, with an open air layout with low cubicles, was designed to foster camaraderie and ease of communication, creating a very social environment.

One day, JJM employee Philip Fulkerson was on his way into the office, heading to his desk, when he saw an acquaintance sitting with Navy employee Kenneth Porter in Porter’s cubicle. Fulkerson stopped by to chat, perching on the edge of Porter’s desk. At one point while Porter was speaking, Fulkerson went to pat Porter in what the court described as the style of Tony Soprano. But Fulkerson slipped off the desk, causing him to accidentally slap Porter hard in the face.

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On January 25, 2010, while at work at The Oaks Nursing Home in West Monroe, Sheriff Royce Toney of Ouachita Parish wrongfully arrested Ms. Annette Brown for aggravated battery. Despite showing Dep. David Germany of the Ouachita Parish Sheriff’s Office (“OPSO”) her drivers license, which listed an address separate from the one on the arrest warrant, she was still taken into custody. Ms. Brown then had to gather $1,255 to pay a bail bondsmen.

Upon release, she brought hospital records showing where she was on the night of the alleged battery and her driver’s license. The charges were quickly dropped. Despite several requests for a return of her $1,255, city officials replied there was nothing they could do about it. Ms. Brown then filed suit demanding general damages for wrongful arrest, false imprisonment and malicious prosecution.

OPSO filed for, and was granted, summary judgment asserting that it was MPD that gave the wrong name to the issuing magistrate. OPSO argued that it acted pursuant to a facially valid warrant, while Ms. Brown argued that someone likely in the OPSO mistakenly grabbed her DMV record instead of the real culprit, Annette Bryant. While ruling in favor of OPSO, the court explained that a “suspicion of what might have happened” is not sufficient evidence to connect OPSO to the warrant. Upon appeal, the court used a duty-risk analysis to determine whether to impose liability under La. C.C. art. 2315 A, which holds “every act whatever of a man that causes damage to another obliges him by whose fault it happened to repair it.”

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The appellate court differed with the trial court on the validity of a compromise when Louisiana company D.R.D. Towing was sued by a crew member on D.R.D.’s ship.

Mr. Randy Rudolph was a crew member of the M/V RUBY E, which was struck by another ship while he was on board. The collision threw him from his bunk, causing injuries to his back. Additionally, Mr. Rudolph lost his personal computer, cell phone, car keys and other items when the ship sank. He filed suit against D.R.D. Towing, the operator of the M/V RUBY E.

The issue for the court was whether Mr. Rudolph’s signing a release settling all claims for $3,000 a few days after the incident precluded him from collecting further money for his injuries. He argued that he understood the $3,000 was offered to compensate him for what he lost on the boat, but not to cover his future claims, including medical expenses and loss of earning potential associated with his injuries.

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Two clocks fell from a wall display in the Lafayette Hobby Lobby and struck a customer in the head. Jo Anna Savant brought a negligence suit seeking compensation for her accident-related damages. The case went to trial and the jury found for the plaintiff. The trial judge, finding errors in the jury’s verdict, set it aside, and issued a judgment even more favorable to the plaintiff.

The case went up on appeal.

The Louisiana Third Circuit Court of Appeal addressed four legal issues in this case: the trial court (1) setting aside of the judgment; (2) not charging the jury to determine Ms. Savant’s fault in the accident; (3) approving the award to plaintiff for the cost of her second cervical fusion surgery; and (4) awarding the loss of consortium to plaintiff’s children.

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In 2011, a Louisiana woman appealed a decision issued by the state’s highest court in a case she filed after suffered damages from the drug metoclopramine. Julie Demahy filed a lawsuit in 2008, alleging that she had suffered damages from the generic version of metoclopramide, which she took between 2002 and 2007. The state court had dismissed Ms. Demahy’s claims against Actavis, the manufacturer of the generic version of the drug, and against prescription drug makers Wyeth, Inc. and Schwarz Pharma, Inc. Schwarz had acquired the name-brand rights to the drug in 2001.

As of 1985, the FDA required that generic manufacturers of the drug metoclopramide include a warning with the medication about the risk of tardive dyskinesia, an often irreversible neurological disorder. In 2004, Schwarz voluntarily requested a change to the name-brand label, adding a warning that the drug should not be used for more than 12 weeks. It was not until 2009 that the FDA issued a black-box warning that informed consumers about the risk of tardive dyskinesia and that warned customers that the drug should not be used for longer than 12 weeks except in rare cases.

Under federal law, generic drug labels are required to be the same as name-brand labels. This means that state law cannot require generic manufacturers to include more information than that which would be available on the name-brand product of a prescription drug, as this would be contrary to the federal law. On these grounds, the state court had found that Actavis was not responsible under a failure-to-warn claim brought by Ms. Demahy. On appeal, Ms. Demahy claims that the state court’s mandate to change the district court ruling in favor of the defendant was improperly interpreted as calling for the dismissal of all claims against Actavis; Ms. Demahy argued that Actavis could still be found liable outside of the failure-to-warn claim.

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Plaintiff Judith Henry seeks to recover damages resulting from an accidental fall in the defendants’ restaurant in Houma, Louisiana, on March 13, 2008. The accident occurred when Ms. Henry placed her order and got her soft drink at the counter and began to walk back across the carpeted floor to the table. At that time, she was using a cane and one of her friends was walking ahead of her carrying her soft drink. According to Ms. Henry’s deposition, she was stepping with her right foot when her toe got caught in the carpet. Her foot went backwards and she fell, landing on the foot and breaking her right ankle. Although the carpet was not frayed or worn, she stated it was uneven because it had little squares that formed its weave.

On February 17, 2009, Mr. and Mrs. Henry filed suit for the damages they had incurred as a result of her fall naming NOHSC and its insurer Colony as defendants. On April 1, NOHSC and Colony filed a motion for summary judgment supported by excerpts from Ms. Henry’s deposition, an affidavit from Paul McGoey, NsOHSC managing partner, and an affidavit from Donald Maginnis, a registered architect. Included in this evidence were attachments consisting of photographs of the restaurant interior, a hand-drawn diagram of the restaurant interior and excerpts from the 2006 Life Safety Code Handbook.

After hearing arguments and considering the evidence presented by the parties, the court ruled in favor of the defendants, granting the motion for summary judgment and dismissing the Henrys claims with prejudice The judgment was signed on June 30, 2010. The Henrys then appealed this judgment.

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The district court dismissed the claims of Entergy, an electrical utility company, for indemnity from contractors involved with repairs to a building to which the utility company provided electrical service on the ground that the Louisiana Overhead

Power Line Safety Act (“OPLSA”) does not allow indemnification remedy. On appeal, having decided favorably for the plaintiff in the legal issue of whether OPLSA might require indemnity, the appellate court vacated the district court’s grant of summary judgment in favor of the contractors.

Shortly after Hurricane Katrina, a general contractor, Carl E. Woodward, LLC, (“Woodward”), entered into a contract with Eagle Enterprises of Jefferson, Inc., the owner of the Walgreens Shopping Center. Woodward subcontracted with Stewart Interior Contractors, LLC (“Stewart”) to install framing and exterior wall material at the shopping center. In turn, Stewart subcontracted with Landaverde Construction, LLC (“Landaverde”) to assist with providing labor. On January 5, 2006, Landaverde laborers, including plaintiff, Daniel Moreno, arrived at the shopping center work site. As Mr. Moreno was standing near the scaffold and evaluating how to best disassemble it, another worker at the top of the scaffold moved a piece of metal that came in contact with both the overhead power line and the scaffolding frame. A resulting arc of electricity flashed from the scaffolding to Mr. Moreno’s body, inflicting serious burns.

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