Negligence

May 25, 2023

From Business to Lawsuits: When a Trip Takes a Wrong Turn

casino_game_play_argentina-1024x683 Business trips can provide opportunities for networking and leisure, but unexpected injuries can turn the experience into a nightmare. One such example is the case of Jonathan Peters, who attended a business convention in New Orleans and stayed at Harrah’s Hotel.

Peters visited New Orleans for a business convention and stayed at Harrah’s Hotel. Around midnight, Peters exited the hotel to get something to eat. Peters walked on the hotel’s brick sidewalk as it was raining. When he began to slip, he moved to step on a hose to prevent himself from falling, yet he slipped and broke his wrist. After the fall, Peters underwent surgery at Tulane Medical Hospital, but this procedure did not rehabilitate him. Peters alleged he permanently lost the range of motion in his wrist.

Peters sued Jazz Casino and JCC Fulton Development, L.L.C. (“Jazz Casino”), the owners and operators of the hotel. Jazz Casino asked the lawsuit to be placed in the federal district court and filed a motion for summary judgment. The motion for summary judgment was granted. Unhappy with that decision, Peters appealed.

May 24, 2023

Can You Succeed in Appealing a Court Decision Made Against You?

by Berniard Law Firm

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Accidents happen daily, and when they do, they can be overwhelming and stressful. If you’ve been in an accident and filed a claim for damages, but it gets dismissed due to the granting of a motion for summary judgment in favor of the defendants, you may feel like there’s no hope. However, this is not the end of the matter. The trial court’s decision can be appealed, and the appellate court will review the decision to ensure whether the motion was properly granted. The following lawsuit shows how the appeals process can alter a trial court’s decision.

Stephen Ledet and his young son were sailing on a 16-foot recreational boat (“Ledet vessel”) being operated by Stephen’s brother, Kent Ledet. They were sailing on the Intracoastal Waterway near Berwick, Louisiana. The M/V Miss Cissy (“Miss Cissy”), a 46.5-foot commercial vessel owned by Parker Drilling Offshore USA, LLC (“PDO”), was sailing on the waterway at the same time ahead of them. Its employee, Captain Richard Rowe (“Rowe”), operated it.

Kent Ledet could see the ship approximately 200 yards away as the weather was sunny and clear. However, Miss Cissy was traveling much slower than the Ledet’s vessel. The Ledet’s vessel eventually caught up to Miss Cissy’s rear. Miss Cissy then suddenly accelerated its engine and created large swells and wakes. Kent Ledet was unable to avoid the large wakes. The boat tossed and slammed against the water, and the whole family sustained alleged physical and mental injuries.

May 19, 2023

The Importance of Accurate Service of Process Information in Lawsuits

by Berniard Law Firm

auto_wall_breakthrough_art-1024x683 If you need to file a lawsuit, obtaining the opposing party’s accurate service of process address is crucial. Otherwise, you may face challenges similar to those encountered by Veronica Gordon. Gordon was an independent contractor for A-1 St. Bernard Taxie & Delivery, LLC, when she was involved in a motor vehicle accident while driving one of their cabs. Three days after the accident, she went to the emergency room for treatment of pain in her arm, shoulder, neck, and back.

Three months after the accident, Gordon filed a claim against A-1, alleging that they had failed to pay her wage benefits and authorize necessary medical treatment. She also sought penalties and attorney’s fees. Initially, Gordon listed an incorrect address for service on A-1, and even after amending her claim with an updated address, service could not be perfected.

In December 2015, the Louisiana Office of Worker’s Compensation (OWC) ordered Gordon to explain why her complaint should not be dismissed for failure to prosecute. A week later, Gordon filed a motion to appoint a special process server, which was granted. However, after several failed attempts to serve process on A-1, Gordon filed a motion in February 2016 to appoint the Louisiana Secretary of State as the Agent for Service of Process for A-1, which was also granted. The Secretary of State sent the second amended claim to A-1’s last known address.

May 14, 2023

50-50 Fault Allocation: The Complexities of Determining Fault in Workplace Accidents

by Berniard Law Firm

tilt_trucks_truck_kieswerk-1024x768 Workplace accidents can be devastating, and determining fault can be complex and challenging. Clark Nixon, a dump truck driver, recently found himself in this situation after a workplace accident left him injured. While working at a job site for the Terrebonne Levee & Conservation District (“TLCD”), Nixon was involved in an accident with David Danos, an employee of TLCD, acting within the course and scope of his employment. The Louisiana First Circuit Court of Appeal affirmed the Trial Court’s holding of both parties at fault, and the defendants filed an appeal challenging the allocation of 50% fault to Danos and TLCD.

At the time of the accident, Nixon was hauling dirt to the job site, where dirt was being stockpiled to build a levee at a later date. The dump truck drivers backed their trucks to unload dirt, and a bulldozer operator would then push the dirt from the pile up a ramp, travel in reverse back down the ramp, and then repeat the process. TLCD also employs a spotter who verifies the dump truck’s load of dirt, documents it, and directs the dump truck drivers where to dump the load of dirt.

Under Louisiana law, courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles. La. C.C. art. 2315. Nixon alleged negligence on the count that he was injured because of the accident and that Danos and TLCD’s negligence was the cause of his injuries. The defendants had denied liability and claimed the accident occurred because of Nixon’s fault.

May 13, 2023

Challenging Damages Awards: Why Courts Tend to Defer to Juries in Personal Injury Lawsuits

by Berniard Law Firm

truck_yellow_toy_dump-768x1024 It may not be uncommon to recover less than you had hoped in a personal injury lawsuit. However, challenging the amount of money you are awarded to get more is a challenging feat. A recent case out of the East Baton Rouge Parish explains why courts tend to defer to the jury when awarding damages.

Stephen Gordon was driving his car on Interstate-10 with his wife, Melissa Gordon, in the passenger seat on the Mississippi River bridge in East Baton Rouge Parish, Louisiana. While Gordon was driving in the middle lane, a Mack dump truck was traveling eastbound in the left lane. The truck driver merged into the middle lane and hit Gordon’s car. The Gordons alleged that they were injured in the accident and filed suit. They sued Paul Wright, the driver of the dump truck; Vision Trucking, LLC, the owner of the dump truck; Joseph W. Wright, Jr, the driver’s employer; the owner of Vision Trucking, LLC; and the liability insurer of the driver and Vision Trucking, LLC. Ms. Gordon then settled all her claims against the defendants, and Mr. Gordon’s claims proceeded to trial.

At trial, the court determined that Mr. Gordon lacked credibility and appeared to exaggerate the extent of his injuries because much of his testimony about his injuries and treatment was contradicted by other evidence. However, the trial court still noted that Mr. Gordon had extensive treatment to his back, neck, and right leg before the accident, which intensified his pre-existing condition. The court awarded Mr. Gordon $15,000 in general damages and $5,092.07 in special damages, and Mr. Gordon appealed. Mr. Gordon argued the trial court failed to award him the full amount he claimed in special damages for his past medical expenses, failed to award future medical expenses for recommended surgeries, and abused its discretion in awarding general damages that were “unreasonably low.”

May 11, 2023

Casino Personal Injury Lawsuit Misses the Jackpot

by Berniard Law Firm

casino_note_roadway_mark-1024x683 Casinos can be a chaotic mix of adrenaline and alcohol. While a cultural staple of sportsmanship and skill, it is unsurprising that injuries often occur at casinos. The casino may be liable in some instances, but casino guests are also responsible for acting reasonably and taking precautions to ensure their safety, such as moderating alcohol consumption. When a guest under the influence is injured while on casino property, a required showing of causation may be absent due to the contributory factor of intoxication.

Lee Edminson suffered a traumatic brain injury after falling down an escalator at Harrah’s New Orleans Casino in the early hours of the morning. Edminson’s blood alcohol content at the time of the accident was over three times the legal limit in Louisiana. He brought suit against the casino, alleging negligence in the maintenance of the escalator. The cause of action of the premises liability claims was La. Civ. Code article 2322, damage caused by building ruin, and article 2317, acts of others and things in custody.

The trial court found in favor of the defendants on a motion for summary judgment. The court, therefore, held that there was no causation because of the intervening cause of Edminson’s extreme intoxication. The plaintiffs appealed that judgment because they felt there was a dispute of fact about whether the escalator created an unreasonably dangerous condition that was not open and obvious.

May 10, 2023

Tragic Loss: Lawsuit Highlights the Importance of Expert Testimony in Medical Malpractice Cases

by Berniard Law Firm

hospital_bedside_beds_ceiling-1024x768 Having a sick child can be a nerve-racking time. Having a sick infant is even scarier as you, as a parent, feel helpless. In these times, caregivers turn to the experts in medical centers to help. But, unfortunately, a hospital can’t always help before it is too late.

In June of 2012, 13-month-old Landon Lee was transported via ambulance to Our Lady of the Lake Regional Medical Center (OLOL) due to vomiting and respiratory distress. Landon was treated in the emergency room by Dr. Boudreaux, where he was determined to have cardiac issues. He was admitted to the pediatric intensive care unit at OLOL. Later the same morning, Landon Lee was transferred via helicopter to Ochsner Medical Center in New Orleans to be placed in an Extracorporeal Membrane Oxygenation unit (ECMO). Within an hour of arriving at Ochsner, Landon died. The autopsy determined 13 month-old Landon passed from cardiomegaly or an enlarged heart.

Landon’s mother filed a lawsuit on her behalf and for her deceased son against both OLOL and Dr. Boudreaux, the pediatrician and emergency room physician who treated Landon at OLOL. Lee asserts in her claim that Boudreaux and OLOL failed to properly care for and treat her son while at OLOL. Along with the allegations in her lawsuit, Lee attached an affidavit from Dr. Meliones, a board-certified pediatric cardiologist specializing in pediatric critical care, to support Ms. Lee’s negligence claim.

May 9, 2023

Absent Vehicle, Absent Negligence: Louisiana Appellate Court Affirms Dismissal of Products Liability Lawsuit

by Berniard Law Firm

texture_airbag_car_vehicle-1024x683 Car manufacturers have a duty to provide safe vehicles for drivers and passengers. A safe car includes an airbag that can help lessen the effects of an auto accident. What happens when your airbag doesn’t expand during a wreck? Can you sue the manufacturer of that airbag? An Ascension Parish lawsuit shows why the absence of a car that has a defective airbag will cause major headaches for your product liability lawsuit.

While traveling through Ascension Parish in the summer of 2012, Joseph M. Dortch (“Dortch”) swerved off the road and into a ditch after trying to avoid another vehicle crossing over the centerline of the highway. Dortch was transported to the hospital by ambulance and sustained several injuries. His car was totaled and eventually sold by his insurance company, State Farm Mutual Automobile.

Following the accident, Dortch sued the other driver and FCA US LLC. Against FCA US LLC, Dortch claimed that the airbags in his vehicle were “unreasonably dangerous” because they failed to deploy during the accident and were, thus, the proximate and contributory cause of his injuries. FCA US LLC filed a motion for summary judgment in response to these claims, arguing three points to undermine Dortch’s allegations.

May 6, 2023

Are Third-Party Contractors Caught in a Workers’ Compensation Loophole?

by Berniard Law Firm

craftsmen_building_scaffold_19584-1024x679 The evolving nature of employment now means the relationship between employer and employee can be indirect and through different contracting methods. In addition, many people employed by one company are, in fact, on the job doing work for another. A recent case in Louisiana highlights these distinctions and the risks posed to workers and their families when seeking compensation.

While working in 2013, Michael J. Louque Jr. was crushed to death by a piece of heavy machinery that rolled off the truck it was being loaded onto. Mr. Louque was employed by River Parish Maintenance (RPM) but was working at the Motiva Enterprises, LLC (“Motiva”) manufacturing complex. Upon his death, the family of Mr. Louque filed a lawsuit against Motiva and others, seeking compensation for his wrongful death.

The contract that brought Mr. Louque to the Motiva manufacturing complex was actually between RPM and Shell Oil Products US (“Shell”). This point is crucial in understanding the state of the Louque’s litigation, as Louisiana law prohibits employees from directly suing their employers in a tort claim rather than pursuing worker’s compensation benefits. See Deshotel v. Guichard Operating Company, Inc.

May 4, 2023

Can a Judge increase a Jury’s Award of Damages?

by Berniard Law Firm

paragraph_attorney_judge_process-682x1024 The jury process is considered the great equalizer when it comes to the everyday man fighting large corporations. Juries in Louisiana are made up of twelve people tasked with evaluating the evidence and legal arguments of the parties. While juries do, their best mistakes can be made and corrected by the Judge overseeing the case. So what happens if a jury leaves out critical items of a damage award? Can a Judge increase a jury’s award of damages? The following lawsuit out of Lake Charles helps answer this question.

Dwight Minton was a passenger in a car when he was hit by another vehicle. As a result, he filed a lawsuit against Christopher Gutierrez, the driver of the other vehicle, and GEICO Casualty Company, among others. In addition, Minton sought damages for the injuries sustained in the accident.

The jury returned a verdict in favor of Minton, awarding damages of fifty-eight thousand five hundred dollars. Believing this award was too low, Minton filed a motion for judgment notwithstanding the verdict (JNOV), asking the trial Judge to increase the award. The Judge granted this motion and awarded damages over five hundred thousand dollars.