Miscellaneous

June 13, 2011

Louisiana Supreme Court Dismisses Plaintiffs’ Case Based on Failing To Show Good Cause For Untimely Service of Process

After filing a lawsuit, plaintiffs are required to notify defendants of the impending suit so that they may defend and respond to the claim. Without notice that a lawsuit has been filed against them, defendants’ due process rights may be violated if an unfavorable judgment is entered or rendered without their knowledge. The time frame for this requirement – commonly known as “service of process” – varies among state and federal jurisdictions. In Louisiana, plaintiffs have ninety days from filing a lawsuit to request service of process, which is known in Louisiana as “citation and service.” The lawsuit officially begins once a defendant receives citation and service because only then will a court have jurisdiction over all of the parties. If service is not completed within the statutory period, defendants may justifiably make a motion to dismiss the case. Plaintiffs, however, may be able to defeat a motion to dismiss if they can show good cause for being untimely with the requirement. This issue was recently before the Supreme Court of Louisiana in George Igbinoghene and Sebastian Busari v. St. Paul Travelers Ins. Co.

In the seminal case, Igbinoghene and Busari (hereinafter “plaintiffs”) filed their petition in the parish of Orleans on May 18, 2007, but failed to request service within ninety days of the filing date. St. Paul Travelers Insurance Company (hereinafter “St. Paul”) filed a motion to dismiss for insufficient service of process. The district court denied the motion and St. Paul appealed.

On appeal, the plaintiffs argued that denying the motion to dismiss was proper because good cause was shown for being untimely since they agreed to St. Paul’s request to extend the time to file responsive pleadings. The Supreme Court found this argument unpersuasive given that such events occurred in 2008 and 2009, which were outside of the relevant period. Moreover, the Supreme Court stated that requesting an extension to file pleadings did not act as an express, written waiver of citation and service. In addition, the Supreme Court declared that St. Paul’s knowledge of the suit did not make citation and service unnecessary. To support this assertion, the Supreme Court relied on Naquin v. Titan Indemnity Co., a Louisiana Fourth Circuit Court of Appeals case, which held that “defendant’s actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions.”

June 11, 2011

Appellate Court Denies Summary Judgment in Store’s Favor in Shoplifter Detention Case

by Berniard Law Firm

According to the Louisiana Code of Criminal Procedure, a merchant may use reasonable force to detain a suspected shoplifter for questioning or arrest for up to an hour. La. Code Crim. P. Art. 215(A)(1). A merchant who acts under this provision is entitled to immunity from any civil actions arising out of the detention, provided he can show that he had reasonable cause to believe that the detained person committed theft; he did not use unreasonable force; the detention occurred on the store premises; and the detention did not last longer than 60 minutes. Freeman v. Kar Way, Inc.

The issue of the merchant’s reasonableness was at the center of the recent case of Rhymes v. Winn-Dixie Louisiana, Inc. On the morning of December 24, 2007, Thomas Rhymes visited the Winn-Dixie grocery store in Abbeville to purchase some cough syrup. While shopping, Rhymes’s blood sugar began to drop and he felt dizzy and weak. He slipped the cough syrup into his jacket pocket, grabbed several bags of honey buns, and made his way toward the checkout. A store manager intercepted Rhymes and demanded the products from his jacket pockets. The manager then told Rhymes to leave the premises but a moment later told him to stay, though Rhymes ignored this request and continued toward the door. The manager grabbed Rhymes by the neck and twisted his left arm behind his back. The manager attempted to hit Rhymes as they made their way to the back office but was stopped, mid-swing, by another store employee. When the police arrived, a different manager advised the officer to release Rhymes as the store did not wish to press charges. Rhymes filed suit for physical and mental injuries resulting from the incident. Winn-Dixie answered, denying that Rhymes was injured and asserting the merchant’s detention privilege under the Louisiana Code. Winn-Dixie also filed a motion for summary judgment, which the trial court granted on May 20, 2010. Rhymes appealed.

The Third Circuit began its review with the well-established principle that summary judgment is appropriate only when there is “no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” Rhymes’s argument on appeal was that a question of material fact “regarding whether the force used by the manager was reasonable” existed. Indeed, Rhymes argued that the store manager’s actions were “beyond unreasonable.” The court likened the analysis under the merchant statute to determining whether the force used by police officers in arresting criminal offenders is reasonable, for which the Louisiana Supreme Court has held:

June 9, 2011

Thirty Years of Asbestos Exposure Leads to Death

by Berniard Law Firm

Over the past two decades, America’s working class has suffered the impact of exposure to asbestos. Before it was known that asbestos could lead to serious illness and death, people worked around the material without hesitation. Problems with exposure arise due to the fact that the fibers of asbestos, once inhaled, can have a very negative impact on your lungs and body. Those who have been exposed to asbestos can contract mesothelioma, a rare kind of cancer that can develop from the protective lining that covers many of the body’s internal organs. It is an aggressive and deadly kind of cancer that has very little remedy; usually the best type of treatment is the keep the person as comfortable as possible.

Even worse, mesothelioma can have the same symptoms of other diseases, so it can be misdiagnosed very easily and lead to significant delays in treatment. Furthermore, the symptoms of the disease often do not appear right away. Because the impact of exposure may not become obvious for many years after exposure, people have the possibility of being diagnosed with something other than the disease and miss out on sorely needed medical attention. Because the disease manifests itself so late, it can easily go under the radar and get worse before anything can be done to resolve it.

In Louisiana, in the New Orleans Parish Civil District Courthouse, the family members of yet another victim of exposure to asbestos will have their day in court. The deceased, Phillip Graf, was exposed to asbestos for over 30 years and died a long, emotional and painful death. His family members are suing up to 29 different defendants in their lawsuits arising from his untimely and unfortunate death. Among the defendants are organizations that may have directly or indirectly played a critical role in the exposure of asbestos leading to Mr. Graf’s unfortunate passing.

June 7, 2011

Contractor Not Liable for Electrocution Death in St. Tammany Parish

by Berniard Law Firm

The U.S. Court of Appeals, Fifth Circuit upheld a District Court ruling in early 2011 allowing a contractor out of a negligence suit following a tragic incident in which a young man was electrocuted while trimming trees. The Court held Defendant Contractor Camp Dresser & McKee, Inc. (CDM) did not have a duty to protect a subcontractor from injury and therefore could not be held negligent. Because there was no contract between the contractor and the tree service subcontractor, the Court held there was no principal-independent contractor relationship that would have formed a duty.

Chad Groover, an employee of Groover Tree Service (GTS), was operating an aerial lift and cutting trees on the morning of December 7, 2006, north of Slidell when the basket he was riding in made contact with an energized line. Groover’s brother, Larry Groover, witnessed the electrocution. Chad Groover was severely injured at the scene and sadly died seven months later from complications. The family of the deceased brought a negligence action against several defendants, including the contractor CDM, a CDM worksite monitor, and CDM’s insurers, Zurich American Insurance Company and ACE American Insurance Company. The suit alleged CDM’s negligence caused Larry Groover to suffer mental anguish when he witnessed his brother’s death.

Proving negligence requires proof that the negligent party owed a duty to the injured party. Duty implies a special relationship or can be established by law. The Defendants filed motions for summary judgment arguing they did not have a legal duty to protect Chad Groover from injury. Plaintiffs averred in a cross motion for partial summary judgment Defendants had a statutorily provided duty to have the power company de-energize the lines.

June 5, 2011

Lafayette City-Parish Consolidated Government Ordered to Pay Damages, Costs to Injured Bus Passenger

by Berniard Law Firm

The plaintiff in this case, Eileen Laday, was a passenger on a bus owned by the Lafayette City-Parish Consolidated Government. The bus had been donated to the City-Parish in the aftermath of Hurricane Katrina. When the bus was donated, it was missing a plexiglass shield that was designed to keep the bus door from coming into contact with passengers. As Ms. Laday sat in the front seat, the door opened and trapped her arm. She was not consistent about how long her arm was trapped.

Ms. Laday went to a doctor the next day, complaining of neck and shoulder pain radiating into her right arm. The doctor ordered an MRI, which showed degenerative cervical disc conditions as well as a disc herniation. She later saw an orthopedic surgeon, who recommended that she undergo surgery. As of the date of trial, she had not yet had the surgery, which was estimated to cost between $60,492.60 and $61,492.60.

The judge conducted a bench trial (where there is no jury) and ruled in favor of Ms. Laday because of the high standard of care imposed on common carries like operators of public buses. He awarded her $60,000 in general damages, $24,084.56 in past medical expenses, and $60,492.60 for future surgery costs to be placed into a reversionary trust under La.R.S. 13:5106, with interest to go to Ms. Laday.

June 3, 2011

Appellate Court Affirms Small General Damages Award in Minor St. Landry Parish Accident

by Berniard Law Firm

In a prior post, we saw that the trial court is afforded considerable deference in the setting the amount of general damages in tort cases. More than 30 years ago, the Louisiana Supreme Court stated:

“[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.” Reck v. Stevens.

The Court went on to advise that an appellate court’s primary role is to determine whether a trial court’s general damages award amounted to an abuse of discretion. Only if such abuse is found is it appropriate for the appellate court to review prior judicial opinions to determine a range of amounts reasonably applicable in the case.

June 1, 2011

Court Rules High School Football Stadium Bleachers Are Not Unreasonably Dangerous

by Berniard Law Firm

On the evening of October 29, 2004, Jeanine Pryor, then 69, attended a football game between Barbe High School and New Iberia High School at Lloyd G. Porter Stadium in Iberia Parish. Pryor, who was there to see her grandson play, was recovering from hip surgery and required a cane to get around. She sat in the bleachers on the visitors’ side of the stadium to be with the other fans of the Barbe High Bucs. The seat boards on the visitors’ side bleachers were uniform and approximately eight inches apart in height, except that the space between the first and second seat boards had 18 inches between them. When Pryor first arrived, she realized she could not step up the distance between the first row and the second, so she “grabbed the second board and lay on her side so she could swing one leg up at a time.” Then she stood up and was assisted by her daughter the rest of the way up the rows to her seat. At halftime, when Pryor descended the bleachers in order to visit the restroom, she attempted to simply step down the distance between the first and second seats, rather than use the same maneuver she had executed on the way up. In the process, she fell and was severely injured. Pryor filed suit against the New Iberia school board alleging that the bleachers were defective. After a bench trial, the district court entered a judgment for the school board, having determined under a risk/utility analysis that the condition of the bleachers was not unreasonably dangerous. Pryor appealed and the court of appeal reversed. It rejected the district court’s analysis, finding there was “no utility or social value in exposing visiting patrons to an eighteen-inch vertical differential between the seat boards in question.” The court apportioning 70 percent fault to the school board and 30 percent fault to Pryor, awarding her damages of over half a million dollars. The school board appealed.

The Louisiana Supreme Court recited the general rule that “the owner or custodian of property has a duty to keep the property in a reasonably safe condition,” though the owner generally has “no duty to protect against an open and obvious hazard.” It is the trial court’s role to decide which risks are unreasonable based upon the facts and circumstances of each case, and review of its determination on appeal is subject to the manifest error standard. Louisiana courts have adopted a risk-utility balancing test for this analysis, which requires weighing four factors:

(1) the utility of the thing. Here, the court concluded, “it is undisputed that the bleachers serve a social utility purpose by providing seating for patrons of the stadium,” and further, that “the eighteen-inch gap between the first and second seat is not a defect in the bleachers per se, but simply part of their design.”

May 30, 2011

Appellate Court Reverses Factually Unsupported Judgment in Car Wreck Case

by Berniard Law Firm

In previous posts on this blog, we have discussed the elements that the victim of a car accident must prove in order to recover from an at-fault driver. Whether the defendant’s negligent conduct caused the accident and the victim’s injuries is a question to be resolved by the fact-finder. This role is usually assumed by the jury, but can also be left to the judge in the case of a bench trial. Much deference is given to a fact-finder’s decision on such issues: the appropriate standard for appellate review of factual determinations is the “manifest error/clearly wrong standard.” This high standard means that an appellate court can set aside the trial court’s factual determination only if it is “clearly wrong in light of the record reviewed in its entirety.” In order to overturn a factual finding, the appellate court must make a two-part inquiry: (1) the court must find from a review of the trial record that no reasonable factual basis exists for the finding; and (2) the record must establish that the trial court’s finding was clearly wrong. It is important to note that the appellate court is not merely asked to determine whether the trier of fact was objectively right or wrong; instead the court must decide if the factfinder’s conclusion was reasonable in light of the evidence. The Second Circuit Court of Appeal’s opinion in the recent case of Hopkins v. Nola provides an example of an appellate court’s application of this analysis to overturn a critical factual finding of the trial court.

On January 17, 2008, Sharnetta Hopkins was involved in a car accident with Brian Nola near the intersection of Desoto Street and Cole Avenue in Monroe, Louisiana. In her complaint, Hopkins alleged that the accident occurred when Nola struck her car after executing an illegal pass. Nola countered that he did nothing wrong, but was actually struck by Hopkins’s car when she ran a stop sign. At the bench trial in March, 2010, the parties offered conflicting testimony on the incident. Also, Shawn Maynard, an officer with the Monroe Police Department who responded to the accident and issued Hopkins a citation for running the stop sign, offered testimony as to Hopkins’s fault. Nevertheless, the trial court entered a judgment against Nola, awarding Hopkins damages after apportioning 80 percent of the fault to Nola. In its decision, the trial court noted that it effectively ignored Officer Maynard’s testimony because he “did not take any photographs, diagram the location of any debris from the accident, and did not talk to all of the witnesses.”

On appeal taken by Nola, the Second Circuit reviewed the trial record according to the manifest error standard. The court found that “the trial court committed reversible error in its wholesale dismissal of Officer Maynard’s testimony due to deficiencies in his investigation of the accident.” The court reached this conclusion because “the trial court’s articulation in its written ruling of perceived deficiencies is unfounded.”

May 28, 2011

Disabled Man’s Death Demonstrates Slipper Slope of Malpractice Claims

by Berniard Law Firm

Gleason v. Louisiana Dept. of Health and Hospitals is a Medical Malpractice case arising out of the unfortunate death of a 47-year-old severely mentally challenged man, Donnie Gleason. Donnie had been a resident of Northwest since December of 1974 and was nonverbal and incapable of self-medicating, arranging or monitoring his own medical assistance. On December 23, 2002, after two earlier unsuccessful attempts, Donnie was transported to Willis Knighton Medical Center (“Willis Knighton”) in Bossier City, to undergo a routine CT scan and EEG after he suffered a seizure. When Donnie returned, he was lethargic and placed in the infirmary.

The documentation of his treatment there showed that Donnie had ingested a foreign object which caused a bowel impaction that precipitated Donnie’s fecal vomiting. Presumably due to his condition, Donnie was unable to expel the vomit and breathed some of the gastric content into his respiratory tract. At Willis Knighton, Donnie was placed on a ventilator in the intensive care unit and diagnosed with bowel obstruction, respiratory failure and aspiration pneumonia relating to the vomit aspiration. After a brief recovery, Donnie once again went into respiratory distressed, was placed on a ventilator, and passed. The staff were unable to revive him.

In Louisiana, medical malpractice complaints must first be filed with the Louisiana Patient’s Compensation Fund before a lawsuit may be commenced. That organization’s medical review panel ruled for the defendants in this action – Northwest (intermediate care facility) and Willis Knighton (hospital) and their doctors and physician’s assistants individually. The panel concluded that the evidence did not support the conclusion that Northwest failed to comply with the appropriate standard of care because they found no evidence that Donnie ingested a foreign object while there. After the panel ruling, Donnie’s family filed suit against Northwest and Willis Knighton. They alleged, among other things, that Northwest’s failure to properly supervise Donnie and his treatment and its failure to recognize the seriousness of his condition and the inadequacy of the monitoring of Donnie’s respiratory status.

May 24, 2011

The Impoverished Plaintiff and the Assessment of Court Costs

by Berniard Law Firm

The Louisiana Code of Civil Procedure generally affords the trial court wide discretion in assessing the costs of litigation to one or more of the parties. “Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against

any party, as it may consider equitable.” La. C.C.P. Art. 1920. The expenses that the court can tax as costs include the fees of the court clerk or sheriff, witness’ fees, costs of taking depositions, and the cost of photocopies of laws, regulations, medical reports, and hospital records used during the trial. So great is the trial court’s discretion, in fact, that the trial court’s assessment can be overturned only upon a showing of abuse of discretion.

As mentioned, though, there are limitations in the law to the trial court’s authority. For instance, special provisions exist for allocating costs in workers’ compensation cases as well as those involving a plaintiff who proceeds in forma pauperis (through a pauper’s action). The recent case of Curry v. HealthSouth Rehabilitation Hospital illustrates that one path to reversible error on the part of the trial judge is running afoul of the special rules for impoverished plaintiffs.