Negligence

October 13, 2019

Hard Rock Hotel Partially Collapses in New Orleans

advertisement-architecture-big-2380891-683x1024 Around 9am on Saturday, October 12 the Hard Rock Hotel partially collapsed over Canal Street in New Orleans after the top six to eight floors buckled onto the structure. According to New Orleans Fire Department Superintendent Tim McConnel, the remaining structure of the building remains unstable and could possibly collapse entirely. In response, nearby buildings have been evacuated as the two construction cranes are also unstable. Currently, one person has been reported dead, eighteen have been taking to the hospital in unspecified conditions, and two workers are still reported missing. In terms of the next steps to be taken, it is unknown just how long it will take crews to clean up the piles of debris and get the project back on schedule. This is particularly stressful for the city of New Orleans considering the site of the collapse is a major transportation hub for the city – consisting of bus and streetcar lines in addition to the major traffic arteries of the city. An accident such as the Hard Rock Hotel accident will impact much more upon closer inspection spanning to issues such a personal injury, workers compensation, wrongful death, and much more. Considering the complex litigation that can arise out of an incident such as this one it is important to have a good attorney at the ready.

Personal injury lawsuits can arise out of many different circumstances – car accidents, slip and falls, and even injuries on the job. When filing a personal injury case it is incredibly important to have a knowledgeable attorney because filing a personal injury claim too late or even waiting too long to collect damages can result in having your personal injury claim denied. It is important to be persistent in personal injury cases and staying on top of filing deadlines and dates and having a diligent advocate can makes a difference in your case.

Workers compensation is intended to pay for the medical expenses of injured workers and provide a remedy for lost wages. However, workers compensation claims are often complex from start to finish. There are cases in which it can be difficult to determine if someone is considered an ‘employee’ despite being injured while working on a project. This is especially prevalent if a contractor hires subcontractors in order to complete a project. Moreover, it can also be difficult to receive your workers compensation payments with companies often being uncooperative in the workers compensation process.

October 3, 2019

Injured Taxi Driver Fails to Recover in Claim Based on Res Ipsa Loquitor

by Berniard Law Firm

14-Picture-05-22-2019-1024x683 When an unexpected accident occurs, it can be difficult to pinpoint exactly who is responsible for the injury. In the absence of direct evidence of a violation of a duty, the existence of multiple possible parties who might be responsible can preclude recovery.

Mr. Baraki Tsegaye (the Plaintiff) filed a lawsuit against the City of New Orleans and Royal Engineers & Consultants, LLC (the Defendants) for negligence because of an injury suffered by the Plaintiff. When Plaintiff was outside the W Hotel on Poydras Street, New Orleans, a light pole owned by the City of New Orleans fell on him, thereby resulting in grievous injuries to his arm and other limbs. In response, the defendant Royal Engineers & Consultants, LLC filed a motion for summary judgement to dismiss the case against him on the basis that the alleged negligence was not directly caused by the Defendant. The Plaintiff urged the Civil District Court, Orleans Parish (the trial court) to dismiss the motion for summary judgment filed by the Defendants to the original petition applying the principle of res ipsa loquitor.

What then is the doctrine of res ipsa loquitor? It simply is a Latin phrase referring to circumstantial evidence that the negligence of the Defendant is the probable cause of the injury suffered by the Plaintiff in the absence of other evidences to the contrary in the case. See Montgomery v. Opelousas Gen Hospital, 540 So. 2d 312, 319 (La. 1989). The trial court refused to consider the doctrine of res ipsa loquitor and granted a partial summary judgement in favor of Royal Engineers & Consultants, LLC.

October 1, 2019

Peremption Prevents Injured Longshoreman from Bringing Legal Malpractice Claim Despite Lack of Notice

by Berniard Law Firm

26-Picture-05-22-2019-1024x687 The doctrine of peremption can prevent someone from bringing legal action against someone should that action be brought after a certain amount of time. Peremption is a period of time fixed by law for the existence of a right. La.Civ.Code art. 3458. This period is defined by an applicable statute. Arthur Gibson’s case contains two instances of peremption extinguishing a party’s right to bring a claim.

Arthur Gibson was performing manual labor in the hold of a ship in 2004. While at work, he suffered injuries to his neck and blamed the company who made the materials he was moving. This company was Louisiana Rice Mill (“LRM”). For the next ten years, he attempted to bring two civil actions against LRM for negligence and product liability. Mr. Gibson received workers compensation during this time, pursuant to the Longshore and Harbor Workers Compensation Act. He was represented by Raleigh Newman, for his civil claims, and J. Lee Hoffoss, Jr., who handled his worker’s compensation claim.

However, after a visit to a neurosurgeon in 2010, Mr. Gibson’s workers’ compensation benefits were discontinued. Mr. Gibson was never informed of the suspension of his payments. He continued to receive regular payments from Mr. Newman, his attorney, during this time to help cover his living expenses. Therefore, Mr. Gibson was unaware that his workers’ compensation benefits had been suspended. He did not discover this until 2014, when his civil actions against LRM ran dry. Mr. Gibson filed a petition for damages against his attorneys. He claimed that they had performed legal malpractice by failing to appeal the suspension of his benefits. The trial court granted the defendant attorney’s exception of peremption, as the claim was brought more than three years after the alleged injury occurred. Mr. Gibson appealed the trial court’s decision.

September 28, 2019

Baton Rouge Casino Safely and Properly Seated Disabled Man Whose Walker Caused Fall

by Berniard Law Firm

addiction-betting-casino-5258-1024x684 Providing preferential seating to disabled customers is a great service most businesses provide. This also means that the wheelchairs, walkers, and other items the disabled customers must be stored in areas that provide a safe walking environment for other customers. The controversy surrounding where it is proper or improper to put these items was illustrated in a case where a Baton Rouge Casino was sued by a woman who tripped over the walker of a disabled customer. With the help of an excellent attorney, the Casino was able to prove it seated a disabled gentleman properly when the woman sued the casino after her fall.

73-year-old Elvera Willig was eating dinner a Baton Rouge Casino, the L’Auberge Casino & Hotel (“the Casino”) on New Year’s Day 2014. While making her 4th trip back from the buffet, she tripped and fell over an unidentified man’s walker that was slightly sticking into the pathway. As a result of the fall, Ms. Willig fractured her hip.

It was later determined that the unidentified man was directed to the seat by an employee of the Casino. Ms. Willig brought a lawsuit against the Casino. In the lawsuit, she claimed that the Casino was negligent and failed to protect guests; the Casino was negligent and sat the patron inappropriately close to the walkway; and the Casino negligently sat the unidentified man and his walker in a place where other customers could trip on the walker.

September 26, 2019

Trial Court Decision Overturned Due to Prescription Period Expiring

by Berniard Law Firm

adult-chores-flora-1453499-1024x683 If you get hurt due to someone else’s negligence and they agree to cover the costs, how much time do you have to sue for damages? According to Louisiana’s Second Circuit Court of Appeal, you have one year from when the injury occurred or when prescription is interrupted. Typically, prescription refers to land rights, but in Mr. Bethley’s case, it concerns the defendant’s agreement to pay his medical bills.

In July 2012, Mr. Bethley and his father were cutting tree limbs when Ms. Simmons came over and asked to use the saw. Bethley allowed Simmons to try the saw for about fifteen minutes, and then asked him to stop. With the saw in hand, Simmons turned towards Bethley and cut his ankle, which began to bleed to the point where Bethley needed medical attention. On the way to the hospital, Simmons said he would pay for the medical bills as long as Bethley did not tell his wife about it. Simmons paid $180 directly to the hospital, but then stopped making the payments about a year later

In April 2015, Bethley filed suit against Simmons requesting damages for medical bills, lost wages, court costs and pain and suffering. In court, Bethley’s father testified about incident and told the court that Simmons agreed to “take care of it” and asked that his wife not be told. Simmons testified that he didn’t intend to cut Bethley, but Bethley got in the way. He denied promising the pay the medical bills but said he would help if he could. He agreed that he was at fault for the incident, but also contended that the statute of limitation had run out. He also filed an answer stating that over a year had passed since the injury, so the Bethley lost the right to sue. The trial court ruled in favor of Bethley, awarding him damages for pain and suffering, medical bills plus interest, and lost wages. Thereafter, Simmons appealed.

September 25, 2019

Second Circuit Louisiana Court of Appeals Affirms Summary Judgment for Lowe’s in Shreveport

by Berniard Law Firm

garden-gardening-grass-589-1024x680 Can a store, like Lowe’s or Home Depot, be held liable for injuries resulting from the sale of the wrong part or product? In Ms. Johnson’s case, the answer was no. Sharon Johnson’s lawn mower needed a new spark plug, so she went to the Lowe’s in Shreveport to find one. Because Ms. Johnson was unsure about the type of spark plug she needed, she asked a sales associate to help her. The sales associate researched the spark plug that she needed, she purchased it, and returned home to install the part.

When Ms. Johnson arrived home, she installed the part on the mower even though she thought the spark plug was ‘funny looking’. When she started the mower, the cable jerked violently, and she was struck by the crank handle. She claimed to experience pain that shot through her back and neck and spread down the right side of her body. Her hands eventually became numb. She went to a doctor for the numbness. The doctor stated that her injury made her preexisted carpal tunnel syndrome systematic.

She sued Lowe’s for negligence. Lowe’s answered the petition, denying all allegations. They moved for summary judgment, asserting that Johnson failed to produce any evidence to establish liability by failing to prove cause-in-fact. The trial court agreed with Lowe’s and granted summary judgement. Johnson appealed the grant of summary judgment. In Johnson’s appeal, she emphasized that a genuine issue of material fact existed as to whether she was sold the wrong spark plug that led to her injuries.

September 23, 2019

Meritless Claim for Legal Malpractice Highlights Plaintiff’s Own Negligence

by Berniard Law Firm

When representing clients, attorneys walk a fine line between providing adequate services for their clients and being potentially sued by their clients for legal malpractice. While there are legitimate cases of malpractice among attorneys, there are also allegations of malpractice that simply lack merit and are based upon anger from a dissatisfied client.

Such was the case for Carlos Hardison, who filed a legal malpractice lawsuit in the New Orleans Parish against George W. Byrne Jr., an attorney at Ungar & Byrne, A Professional Law Corporation (“Byrne”). Hardison, a seaman who sustained injuries to his foot while on the job and had to undergo a partial leg amputation, filed a maritime personal injury lawsuit against his employer, Abdon Callais Offshore (“ACO”) because of injuries sustained while at sea. After receiving a $90,000 settlement and what he felt to be an adverse judgment, Hardison filed his lawsuit against Byrne for malpractice.

Hardin alleged that as a result of Byrne’s malpractice, he was given a settlement option of $90,000 as opposed to an amount as high as $10 million. Hardin also alleged that he did not give valid consent to the proposed settlement by the court and that he was also under duress at the time of giving consent.

September 22, 2019

Woman Prevails Against Store in Slip and Fall Case

by Berniard Law Firm

64-Picutre-05-22-2019 We have a reasonable expectation that public shopping areas will be free from dangerous hazards. Most stores even have policies regarding safety procedures. However, these safety procedures are not allows followed and injuries often result. Unfortunately, this is exactly what happened to Michelle Gauthier while shopping at a Dollar Tree Store.

Ms. Gauthier was shopping in a Dollar Tree Store located on Airline Drive in Bossier City, Louisiana. While walking through the store, she noticed boxes left on the floor throughout each aisle for restocking purposes. Ms. Gauthier walked down one of the isles, reached for a product on the shelf, and then took a step back. As she did so, her foot got caught on one of the box corners causing her to slip and hit her neck on the shelf in front of her.

Ms. Gauthier filed for damages against Dollar Tree Store. Dollar Tree responded by filing a motion for summary judgment, a motion to dismiss the case, on the grounds that the box was plainly visible and did not create an unreasonably dangerous condition. The trial court ultimately found for Dollar Tree because Ms. Gauthier had seen the other boxes. Therefore, the trial court found it was reasonable to assume that Ms. Gauthier had seen the box which she tripped on. On appeal, the appellate court reversed the trial court’s finding and remanded the case for further proceedings.

September 13, 2019

What Could Happen If You Don’t Gather Evidence After On Duty Injury?

by Berniard Law Firm

chairs-daylight-flowers-2101086-1024x683 Accidents happen – both on the job and when going about regular life. When injuries do occur, we are more likely to go about getting treatment rather than gathering evidence. Nobody is falling down the stairs and then getting up to take pictures or get eyewitness reports. Unfortunately, failure to gather sufficient evidence can result in lasting pain and make you responsible for the bill for your injury. So what happens if you don’t gather evidence after an injury on the job?

In Houma, Louisiana, Keith Russell was delivering materials to build a patio on Timothy Walsh’s property. Russell walked toward a fence but there was no gate. Mr. Russell turned around to walk to the other side of the property and in doing so stepped into an uncovered water meter hole where he fell and hurt his knee. There were no witnesses. Mr. Russell finished the delivery and did not speak with Mr. Walsh. Mr. Russell then sued for damages of her injury. Claims for damages based on injuries caused by a “thing” are made pursuant to La. C.C. art 2317 and 2317.1. These statutes establish that an owner is responsible for things in their custody only (1) upon a showing that they knew, or exercising reasonable care, should have known of the defect that caused the damage (2) that damage would have been prevented if the owner exercised reasonable care (3) which he failed to do.

Mr. Walsh filed a motion for summary judgment seeking dismissal of the claims on the basis that Mr. Russell did not meet his burden of proof that Mr. Walsh had actual or constructive notice of a defect on his property. In support, Mr. and Mrs. Walsh pointed to plaintiff’s deposition testimony, as well as their own affidavits, to show the lack of evidence to support Mr. Russell’s claim. A motion for summary judgment is used when there is no dispute over important facts relating to the issue. An appellate court reviews a summary judgment as if it were a trial court asking whether there is any genuine issue of material fact, and then, whether the plaintiff is entitled to judgment as a matter of law. Summary judgment is granted if according to the evidence presented there is no dispute over the important facts and the party requesting summary judgment would win.The trial court found that Mr. Russell had the burden to produce evidence that defendant had actual or constructive notice of a lack of a cover on the water meter hole. During questioning the plaintiff said that neither Mr. Walsh nor Mrs. Walsh knew or would have known that the water meter cover was uncovered. This effectively nullified Mr. Russell’s case. Therefore, the trial court granted defendant’s motion for summary judgment ruling against the plaintiff and dismissed all claims against him. The appellate court agreed with the decision of the lower court.Whether Mr. Russell believes that the Walsh family is liable for not covering a hole on his property, his case against them lacked the evidence and material facts to get the case to trial. It is important to find good lawyers who can help prepare you for testimony, collect material facts, and evidence to support valid claims after your injury.

September 5, 2019

How Far Does Duty of Care Extend in Jefferson Parish Slip and Fall Case?

by Berniard Law Firm

59-032619-photo Every business which opens its doors to the public owes a duty of care to their patrons, a duty to make sure the patron is safe and free from harm. Often, this is as simple as keeping walkways clear and ensuring spills and other hazards are cleaned up in a timely fashion. But what most businesses have never contemplated is a possibility that the duty of care would be owed to something other than a real, live, breathing person. Could the persons to which a merchant owes a duty of care include “juridical” personhood, such as a corporation or a limited liability company (L.L.C.)? In this instance, the answer was, “no.”

In April of 2013, Deborah Norred slipped and fell in the bathroom of the New Orleans Hamburger and Seafood restaurant on South Clearview Parkway in Jefferson Parish. She filed a lawsuit against the restaurant for negligence. Mrs. Norred was also the only member of American Rebel Arms, an L.L.C. on the verge of opening a firearms store in Holden. American Rebel Arms also filed a lawsuit against New Orleans Hamburger and Seafood for Mrs. Norred’s injury, claiming the injuries postponed the opening of the store, causing economic losses.

The restaurant argued that it had no duty of care to American Rebel Arms. It moved for a peremptory exception for no cause of action. A “peremptory exception” is a court motion which requests the court dismiss the lawsuit. Filing a peremptory exception for no cause of action means that there is no valid claim for which the plaintiff can demand relief. In short, the Defendant did nothing wrong, or at least nothing actionable under law. The Trial Court granted the exception, and American Rebel Arms appealed.