Miscellaneous

April 5, 2013

5th Circuit Affirms Dismissal of Suit Alleging Excessive Force by Jefferson Parish Deputies – Qualified Immunity

Precedent is an absolutely vital part of American jurisprudence. Judges look to previous court cases to help guide them through their decision making process. Judges attempt to distinguish cases that are different, and analogize similar cases. Precedent adds an amount of stability to our justice system. But what happens when the outcomes of seemingly similar cases appear contradictory? The case of Khan v. Normand, et al. helps illustrate the importance of precedent in the context of the tragic death of a man in police custody and illustrates how judges can look at the same precedents and reach very different conclusions.

On July 17, 2007, Nayeem Khan, a man with a history of mental illness, began to run around a grocery store yelling that people outside were going to kill him. While visibly upset and delusional, Mr. Khan was also suffering from a drug-induced psychosis at the time of this incident. After managing to handcuff him, store security guards, and an off-duty sheriff’s deputy that happened to be in the store at the time of the incident, contacted the Jefferson Parish Sheriff’s Office. When deputies began to remove Mr. Khan from the store, he physically resisted. Eventually deputies restrained Mr. Khan by handcuffing both his hands and legs behind his body and connecting his hand and leg restraints with another pair of handcuffs. This meant Mr. Khan was in a four-point restraint which effectively hog-tied him. Mr. Khan began to have great difficulty breathing almost immediately, and deputies removed the restraints and administered CPR until an ambulance arrived. Mr. Khan began to breathe again, but tragically died later that night.

Mr. Khan’s parents sued the Jefferson Parish Sheriff’s Office and the individual deputies involved in their son’s restraint alleging excessive force and violations of Nayeem’s constitutional rights. The Jefferson Parish Sheriff’s Office sought a summary judgment alleging that the deputies were protected from liability on the basis of qualified immunity. The district court agreed, and granted the motion for summary judgment on the grounds of qualified immunity which prevents government officials from being sued while in the course of performing their official duties.

April 3, 2013

5th Circuit Affirms Dismissal of Claims of Excessive Force and Unlawful Arrest

by Berniard Law Firm

42 U.S.C. Section 1983, better known simply as Sec. 1983, is an extremely important federal civil rights law that allows people to seek damages for violations of their civil rights by state actors (those who work for the government). Such claims frequently arise from alleged excessive force or unlawful arrest by police officers. The recent 5th Circuit case of Walter v. Horseshoe Entertainment provides an interesting example of how Sec. 1983 claims work in real life.

On March 12, 2004, Rose Walter and Sylvester Shelton were involved in an incident at the Horseshoe Casino and Hotel in Bossier City. After getting into two altercations with other casino patrons, Walter and Shelton were told to leave the casino for twenty-four hours. The casino’s assistant security supervisor, Mr. James, called for police assistance from the Bossier City Police Department and Officer Estess arrived on the scene. After yet another altercation with Officer Estess and Mr. James, Walter and Shelton were forcibly restrained, handcuffed, and arrested. The two were subsequently charged and convicted in a Bossier City court for remaining after being forbidden and resisting arrest.

After their convictions, Walter and Shelton filed a petition in state court against Bossier City, Officer Estess, the Casino and the Casino’s parent company, Horseshoe Entertainment. Walter and Shelton claimed that they were falsely arrested and that Officer Estess and Mr. James had used excessive force in restraining them. The state court granted Bossier City and Officer Estes their motions for summary judgment. Horseshoe Entertainment removed the Sec. 1983 claim against them from state court to federal district court, where their motion for summary judgment was also granted.

March 29, 2013

Second Circuit Appeals Affirms Department of Transportation Case Involving Multi-Car Accident

by Berniard Law Firm

In Louisiana, the Department of Transportation and Development (DOTD) is responsible for the maintenance of public roadways “in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and resonable prudence.” In order to accomplish this goal in a safe and legal manner, the DOTD follows guidance defined in the Manual for Uniform Traffic Control Devices (MUTCD). The issue in the case of Morales v. Davison Transportation Services arose out of a tragic multi-fatality multi-car accident in Madison Parish. The legal issue the Second Circuit Court of Appeal faced was whether or not to affirm a lower court’s granting of the DOTD’s Motion for Summary Judgment.

On November 7, 2007, a DOTD team was performing road grading on the inside shoulder of a flat and straight section of westbound I-20 in Madison Parish. A motor grader was scraping built up vegetation and dirt from the highway, and a shadow vehicle was following behind. The shadow vehicle was a truck that had an arrow board on top of it directing traffic into the next lane, a set of strobing lights and a sign cautioning drivers of the slow moving vehicle ahead. Records showed that the two DOTD vehicles were traveling approximately 3-5 miles per hour down the highway while performing their work.

The accident occurred when a semi-truck that was rapidly approaching the DOTD vehicles in the inside lane while trying to pass another semi swerved into the right lane but ended up clipping the back of the DOTD truck. The truck then hit the motor grader and ricocheted the first semi into opposing traffic were it collided head-on with an SUV. Both occupants of the SUV were killed, the semi driver suffered permanent brain damage and the DOTD truck driver was also injured. The children of the SUV occupants, the guardian of the semi driver, and the DOTD truck driver all brought suits for damages.

March 27, 2013

Apportioning Blame Important, Especially in Rear-End Car Accidents

by Berniard Law Firm

The rule of thumb to the average driver is that the driver of the car that rear-ends another is always at fault. Although that may be the case generally, there are exceptions.

While Louisiana law states that a driver is not allowed to follow more closely that is “reasonable and prudent,” considering the vehicle’s speed and traffic conditions. As such, a rear-end collision only creates a presumption of negligence. Thus, the driver is afforded the opportunity to rebut that presumption by showing the driver of the other vehicle was driving unpredictably and, thus, that the situation could not have reasonably anticipated.

A little over three years ago, in Hessmer, LA, there was a rear-end collision that the District Judge held was the fault of both drivers. What is more striking is that the Judge allocated 75% of the fault to the driver that was rear-ended.

March 26, 2013

Ripeness: Why Can Seemingly Good Cases Get Thrown Out?

by Berniard Law Firm

In a fairly publicized case, three people were killed in 2008 by a diving boat explosion off the coast of Louisiana. This case is still working its way through the courts and got a little further from resolution in Jillian Morrison, LLC v. Sonia because of an obscure legal concept: ripeness.

Lawsuits need several parts to get off the ground. There has to be a plaintiff with claim with a valid legal basis, you need to have defendant that is liable for the claim. There can’t be any successful defenses, there has to be a court with jurisdiction and finally, the claim must be “ripe.”

Ripeness is a technical concept. For a case to be ripe it means that the cause of action being alleged has to have moved beyond the “abstract or hypothetical.” If the only question remaining is whether the law applies, you have a case. If there are still facts that need to develop to decide the case, then it will be determined to lack “ripeness.”

March 22, 2013

Understanding Your Rights After a Car Accident Crucial to Damages Award

by Berniard Law Firm

You are sitting in your car, stopped at a stop sign, patiently waiting for the right moment to go. Suddenly, the distracted driver behind you rear-ends you. You go through the hassle of filing a report and you exchange information. Shortly thereafter, feeling some slight pain from the accident, you head over to a medical center just to make sure that everything is okay. To cover the costs of the medical bills, you file a lawsuit against the reckless driver.

While the lawsuit in this case seems pretty straight forward, you need to make sure that you hire a competent attorney that will claim the requisite damages on your behalf. This is especially important because if the damages are not requested at the appropriate times, these damages may be waived. Once a trial court has made its findings of fact, unless those findings are blatantly wrong or were made in manifest error, a reviewing court cannot reverse them.

Because the trial court has the duty to hear the findings of fact, the plaintiff’s attorney must submit any testimony or evidence of damages at this level and in a timely manner. At the trial court level, evidence needs to be submitted regarding not just medical bills, but also testimony and any evidence of lost wages, lost earning capacity, the full extent of any medical injuries, and any pain or suffering if these damages are to be awarded. A plaintiff can recover more than just the exact medical bills that have been paid to that point, but the proper evidence and/or testimony need to be presented. If any general damages are sought, they must be requested at the trial court level and entered into the record. If any on-going physical therapy will be required, records of this need to be presented so that it can be properly taken into account. If the plaintiff will not be able to work because of injuries incurred, evidence of this must also be presented so that the trial court can make a proper judgment.

March 19, 2013

Lead Berniard Law Firm Attorney Demonstrates Expertise with CLE Instruction

by Berniard Law Firm

The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

March 19, 2013

No Cause of Action Against School Board Employees in Richland Parish

by Berniard Law Firm

A recent sad case from the Second Circuit Court of Appeal demonstrates how difficult statute interpretation can be. Adrienne Breana Howard was a high school student in Rayville, LA. Struck by an oncoming school bus when she was either pushed or fell off the sidewalk and into the street, Breana tragically died from her injuries.

Breana’s mother filed suit against a number of parties, including specific employees of the Richland Parish School Board. The rationale was that Breana and another student, Courtney McClain, were in the midst of a physical altercation on the sidewalk at the time of the accident. The suit argued this fight which would have been easily visible to any school staff supervising the area. Moreover, Breana had been expelled from Rayville High School precisely because of her ongoing dispute with Courtney. Thus, teachers had notice of the relationship between Breana and Courtney. The suit thus alleged instructors on duty should have been on the lookout, seen the altercation and stopped it in a timely fashion.

The allegations brought included failure to supervise, failure to stop the fight in a timely manner and instead allowing the students to continue fighting uninterrupted, failure to adequately staff the bus area, failure to provide a safe environment on campus and failure to have designated bus safety areas. These are largely negligent omissions.

March 15, 2013

Use of Arbitration an Inviting, Albeit Complex, Form of Civil Litigation Resolution

by Berniard Law Firm

Louisiana strongly favors arbitration between parties when they have a dispute. Generally, it is less expensive and less time consuming than taking the case to trial. The arbitrator will determine the outcome of the damages based on an assessment of all of the circumstances in the case. Each side presents their side of the story so that the arbitrator can make a fair determination of the damages.

In many cases, once the arbitrator makes a decision, neither side can contest the decision unless it violates the law in some way. The Supreme Court of Louisiana has stated, “Because of the strong public policy favoring arbitration, arbitration awards are presumed to be valid. Errors of fact or law do not invalidate a fair and honest arbitration award.” National Tea Co. v. Richmond, 548 So.2d 939, 932 (La. 1989). This type of thinking makes it very difficult to set aside a decision of an arbitrator once it is completed. A case from the parish of St. Landry illustrates this idea.

In that case, the plaintiffs, a family that included two small children, bought a mobile home that they later discovered had mold in the walls and the roof had rotted. The mold likely contributed to their children’s breathing problems, and the family sought damages from both the manufacturer and the seller of the mobile home. The parties were required to arbitrate because the family signed an Arbitration Agreement shortly after they bought the mobile home.

March 13, 2013

Forklift Operator from Lena, Louisiana, Wins Workplace Injury Appeal

by Berniard Law Firm

Injury can occur on the job even when you least expect it. Kenneth Dale Kelly, a forklift operator for Lena, Louisiana, shipping company Boise Cascade, was injured on the job in August 2007. Unlike most workplace injuries that occur due to accidents, Kelly was intentionally injured by a coworker. Kelly was sitting at his desk with his feet propped up when an altercation over a work assignment with Dwayne Myers began. Despite Kelly’s pleas to be left alone, Myers approached Kelly, picked him up out of the chair, and threw him to the ground. Kelly, whose history of back injuries was well-known by all coworkers, including Myers, landed on his back and immediately began experiencing severe pain and discomfort. Boise conducted an internal investigation, and Kelly’s story was corroborated by several coworkers.

Kelly then filed suit against Myers, Boise, and Boise’s liability insurer, and the 5 day trial began on December 13, 2010. During trial, Kelly argued that Myers’s conduct was intentional and that Boise was therefore liable under the doctrine of vicarious liability. Kelly moved for a directed verdict, stating that reasonable minds could reach no other conclusion than that Myers had committed battery (an intentional tort), that Myers had committed this tort within the course and scope of his employment, that Kelly was not at fault for any part of the injury, and that Kelly was injured due to Myers’s conduct. The trial court confirmed the first two issues, and the jury, finding that Kelly was indeed injured but was 30% responsible, assessed $994,940.00 in total damages to Kelly and his wife. The trial court then increased Kelly’s damages for past medical expenses and past lost wages and granted Boise credit for previously paid workers comp benefits.

The defendants appealed, arguing, among other things, that: 1.) Boise should not be liable under respondeat superior for an intentional tort committed by Myers, 2.) the trial court incorrectly applied the Lebrane test, and 3.) the trial court erred in directing a verdict for battery.