Articles Posted in Negligence

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23-Email-04-02-19-pictureA wrongful death action lawsuit can be difficult for an individual to have to deal with. But what happens when a clerk that stamps the lawsuit stamps a date that does not exist? What do you do when the Clerk makes this error? The Third Circuit Court of Appeal for Louisiana recently addressed the issue.

Linda Roberts (“Linda”) was diagnosed with bronchiolitis obliterans organizing pneumonia and passed away on July 28th, 2009. Linda’s son, Jeffrey Buelow, (“Jeffrey”) filed a wrongful death lawsuit on August 2nd, 2010, against his stepfather, Donald Roberts (“Donald”). The stamp on the lawsuit showed “10 JUL 33 A:40” and the Clerk wrote “Aug 2” above the stamp. Jeffrey alleged in his lawsuit that Donald wrongfully signed a consent form to withdraw Linda’s life support while under the influence of alcohol because BOOP could have still been cured. In response to the wrongful death suit, Donald filed a peremptory exception of prescription and a document that provided when Linda passed away. A peremptory exception of prescription is a defense by the defendant that the plaintiff’s lawsuit is barred by not being filed within the prescribed period of time. The provided that Linda passed away on July 28th, 2009, and not July 28th, 2010, as Jeffrey stated in his lawsuit. Jeffrey confirmed in his testimony that Linda did in fact pass away on July 28th, 2009, and evidence in form of a certificate of death verified such. Jeffrey then opted to represent himself at trial and argued that the wrongful death lawsuit should have been carried out because tort lawsuits are subject to a prescription of one year from the day that injury or damage occurs. La. C.C. art. 3492. Jeffrey alleged that the wrongful death lawsuit was faxed by his former attorney before July 28th, 2010 but failed to provide any evidence that demonstrated such. The Ninth Judicial District Court granted Donald’s peremptory exception of prescription because Jeffrey failed to file his lawsuit within one year from when Linda passed away. Jeffrey appealed the decision of the District Court.

On appeal, Jeffrey argued that the District Court erred in dismissing his claim his claim based on the evidence that was presented. For prescriptive periods that are one year or more, expiration of the prescription accrues on the day of the last year in which the date of the alleged wrongful death occurred. La. C.C. art. 3456. The Court of Appeal determined that the prescriptive date was July 29th, 2010, pursuant to La. C.C. art. 3456. The Court of Appeal noted that an employee from the clerk’s office obviously had failed to change the date on the stamp, as the non-existing date of July 33rd would have correctly been August 2nd. The Court of Appeal affirmed the District Court’s decision to dismiss Jeffrey’s claim due to the basis of prescription. The Court of Appeal came to this decision because the record from the District Court showed that the date of the filing was August 2nd, 2010 and Jeffrey failed to produce any letter from his previous counsel or a check paid for the filing fee that would have shown that the wrongful death lawsuit was filed within one year from the date that Linda passed away. This case demonstrates the importance of filing lawsuits in a timely manner.

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12-Photo-4_2_19-1024x683Ms. Sayre was a guest at the L’Auberge Casino Resort in Lake Charles when she tripped and fell while walking in front of the hotel restaurant. Based on the video footage of the accident, there were witnesses to the slip and fall; however, the hotel failed to document anything or take statements from any of the witnesses. Ms. Sayre reported a sticky substance on the floor, and subsequently suffered injuries to her knee, hand, neck, and abdomen. Later, Ms. Sayre learned she also had three fractured ribs and a full rotator cuff tear that would require surgery. So, what happens if you slip and fall in a restaurant?

Ms. Sayre filed a suit for negligence against the resort asserting that the clear, sticky substance caused her fall. She also stated that a restaurant employee told her three other people had fallen in the same spot. When Ms. Sayre attempted to find evidence of the accident, she couldn’t find any and never received an accident report from the resort. She later amended the petition asserting claims that the resort purposely failed to properly secure and preserve evidence to prevent people from bringing suit.

During trial, Ms. Sayre’s counsel requested that the court instruct the jury that failure to preserve evidence raises a presumption that the evidence would’ve been detrimental to the case absent a reasonable explanation. So, if the jury  finds that the defendant could have reasonably preserved the evidence and failed to do so without explanation, the jury can presume that the evidence wouldn’t favor the party. Ms. Sayre was informed by the court that they wouldn’t give the jury those instructions. Sayre’s counsel objected, the trial proceeded, and the jury returned a verdict in favor of the defendant. Ms. Sayre appealed the decision, claiming that the trial court erred by not giving the jury the instructions she requested.

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47-Email-03-13-19-Image-1024x795When most people think of filing a lawsuit, they expect to attend a trial in a court where a judge and jury decide the outcome of the case. However, most of the time cases are decided long before a trial is reached. One of the legal mechanisms for ending a lawsuit before it reaches trial is called a Motion for Summary Judgment. A summary judgment motion allows a party to ask the court to rule in their favor on a particular issue as a matter of law. The court may grant the motion if the parties are in agreement as to the important facts of the case and if the party that is making the motion is legally entitled to prevail on the claim in question. As this case demonstrates, a summary judgment motion can be an effective tool for ending a lawsuit, so when should you ask for summary judgement in a personal injury case?

Javonna Rayfield was staying at the Millet Motel in LaPlace, Louisiana on August 29, 2012, when Hurricane Isaac made landfall and created wind speeds reaching 100 mph. At around 5:00 a.m. Ms. Rayfield was awakened when the ceiling and walls of her room fell on top of her. Ms. Rayfield was taken to a local hospital, where she was treated for her injuries. Later, Millet found that a fire door down the hallway was buckled and the hasp lock was dangling and that the high winds had caused a concrete block wall on the floor above to collapse. The concrete blocks fell above Ms. Rayfield’s room, causing the ceiling and wall to buckle and fall.

Ms. Rayfield brought a lawsuit against the Millet Motel and its insurer, United Fire & Insurance Company (“Millet”). She alleged that the premises in the motel were defective and that Millet knew or should have been aware of the defective conditions. Ms. Rayfield filed a summary judgment motion, asking the court to conclude that there was a defective condition on the premises and that this condition was what caused her injuries. Millet similarly filed a summary judgment motion, asking the court to find that Ms. Rayfield’s injuries resulted solely from Hurricane Isaac. The trial court decided in Millet’s favor by granting their summary judgment motion and denied Ms. Rayfield’s motion for partial summary judgment, a decision which Ms. Rayfield appealed.

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shopping-cart-1550709-1024x768Most people believe that if you suffer a slip and fall accident in a store, you will most likely be entitled to some level of compensation. Unfortunately, that is not always the case.

After a slip and fall accident occurring because of what Regina Williams described as a “puddle of water” at a Super 1 Foods located in New Iberia Parish, Williams filed a lawsuit for negligence against the grocery store. Williams’ lawsuit was filed in New Iberia and named the Brookshire Grocery Company (“Brookshire”), Super 1 Foods’ parent company, as the defendant.

In her lawsuit, Williams alleged that Brookshire had knowledge of the water on the floor and did not use reasonable care to prevent a risk of harm. The trial court ruled in favor of Brookshire by granting summary judgment on their behalf. A motion for summary judgment is a quick and timely judgment requested by a party when there is no genuine issue based on the facts of a case.

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hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768
There is nothing more frightening than going to the emergency room with no sense of what is happening to your body. We believe that the hospital is our safe haven; that the physicians are sincere and will provide us with the care we need to get us back on our feet. However, if something goes wrong, people want someone to blame, and naturally, the hospital or the doctors are the easiest to blame. But sometimes things are misunderstood, and no one is to blame. So, what is the difference between a miscommunication and fraud when it comes to medical malpractice?

On March 16, 2011, Robert Royer received treatment for his heart at Our Lady of the Lake Hospital, Inc. (“OLOL”) at which Royer appeared to be experiencing symptoms of an apparent heart attack. Royer’s doctor encouraged him to drive to OLOL’s emergency room. Within three hours of arriving to OLOL, two EKG tests were performed on Royer to determine his condition, x-rays were taken, and he was admitted to the treatment area where he received medication. Shortly thereafter, OLOL admitted Royer to the critical care unit where he underwent surgery for his heart condition. Two days later, Royer was discharged from the hospital. Royer presented claims of fraud and medical malpractice against the hospital and the doctors.

Royer claimed that the hospital falsely advertised and misrepresented their medical services and stated that the defendant’s intentional misrepresentations convinced him that his complaints about his heart condition would be treated with urgently and seriously at OLOL. He believed that OLOL’s advertisements such as, “completely committed to medical excellence”, and OLOL had earned the “highest level recognition for performance excellence” misled him of the hospital’s service.

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elevator-symbol-1444871-691x1024When one is injured by an employee’s negligence, it is reasonable to expect an award of damages from the employer. When an injured party files a lawsuit, however, the plaintiff must prove that the one who caused his injuries was indeed an employee of the business. For most cases, this is very easy to prove. When there is a question of identity, though, the evidence available can make or break the lawsuit.

When Mr. Juan Alvarez was injured in an elevator at Touro Infirmary in the Orleans Parish of Louisiana, he filed a lawsuit against Touro Infirmary (“Touro”) alleging that two employees of Touro dropped a large piece of wood on him. Mr. Alvarez was visiting a doctor at Touro in Louisiana when the incident occurred. Under the legal theory of respondeat superior, Mr. Alvarez claims Touro is liable for the damage caused by their employees. Under respondeat superior, one can sue an employer for injuries caused by the negligence of their employees. Importantly, a plaintiff must establish that the one who caused the injury was an employee of the defendant.

Mr. Alvarez added JCT Construction (“JCT”) to the lawsuit based on his belief that JCT was supervising a construction project at Touro during the incident. JCT filed a motion for summary judgment to dismiss the complaint on the grounds that Mr. Alvarez failed to establish a connection between JCT and the individuals who allegedly injured in him in the elevator. The District Court granted the motion, and while the plaintiff appealed, the Louisiana Court of Appeal for the Fourth Circuit affirmed the decision.

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ladders-1173769-1024x683When you ask a friend for a favor, whether it is for a ride to the airport or for help cleaning up a room, you never expect that you will end up facing off against each other in a lawsuit. However, when you do end up in such an unfortunate situation, it is important to have a good lawyer on hand to ensure that the dispute is resolved in the quickest manner possible. Michael P. Cox found himself in just such a situation when his friend Laina Dutton offered to help him clean out the building of his recently closed business, Xtreme Nutrition, located in Baton Rouge, Louisiana. When Mr. Cox was out of the room, Ms. Dutton decided to climb a ladder and remove a banner that was hanging on the wall. The ladder was not in a secure location and Ms. Dutton fell backward off the ladder injuring her back and side. She sued Mr. Cox, Xtreme Nutrition, and Allstate Insurance, the insurer for Mr. Cox and Xtreme Nutrition. Ms. Dutton’s lawsuit for negligence was premised on the argument that Mr. Cox owed her a duty to erect the ladder safely, monitor and assist her in the use of the ladder, and warn her of any danger in using it. She argued that the ladder had been set up in a dangerous manner because it was not placed on a flat surface, that Mr. Cox did not warn her of this issue, and that he was at fault for her fall due to his inattentiveness. Ms. Dutton suffered injuries to her arm, back, and spine. For these injuries, she sought special and general damages.

However, the lawsuit never made it to trial. The Trial Court granted summary judgment in favor of the defendants and dismissed the case with prejudice. The Trial Court dismissed the case following pre-trial discovery based on its finding that there was a lack of evidence supporting a negligence claim and that Mr. Cox did not owe a duty to Ms. Dutton. Ms. Dutton appealed, arguing that the Trial Court erred in dismissing the case, but the Louisiana First Circuit Court of Appeal affirmed the dismissal. So, why was Mr. Cox not found negligent in Ms. Dutton’s fall? 

The Trial Court based its dismissal on its view that Ms. Dutton could not produce enough evidence to support the negligence claim. This was because Ms. Dutton was not an employee of Xtreme Nutrition, and Mr. Cox did not pay her to help him clear out the newly closed offices. Further, Ms. Dutton climbed up on the ladder while Mr. Cox was in another room. He had not asked her to climb the ladder and probably did not even know she had gone up. Ms. Dutton even admitted that she had used the ladder before the fall without any problems and did not think the ladder was defective in any way. Because Ms. Dutton had not been instructed by Mr. Cox to go up the ladder, and there was no evidence that he had set up the ladder in a negligent manner, the Trial Court determined that there was no evidence to support a negligence lawsuit following discovery. Thus, the Court dismissed the case before heading to trial. From this decision Ms. Dutton appealed, arguing that the Trial Court erred in two major ways. First, she argued that the only reasonable explanation for the ladder fall was that it had been improperly set up by Mr. Cox. Additionally, since Mr. Cox had set up the ladder, he owed her a duty to properly set it up and he had failed in that duty when he allowed her to climb the ladder in such an unsafe condition. Second, Ms. Dutton argued that in his deposition testimony, Mr. Cox had admitted that he set up the ladder in a dangerous manner by placing one leg on a part of an adjacent desk and the other on the ground, leading to an imbalance that caused the fall. Ms. Dutton argued that these two points were genuine issues of material fact that should preclude a summary judgment dismissal.

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fitness-series-2-1467446-1024x768Summary judgment is a judgment entered by a court for one party and against another party without a full trial. More specifically, summary judgment may be granted where the legal claim or cause of action can be decided upon certain facts without a trial. Can you receive summary judgement in a negligence case against a squat machine manufacturer?

In order to succeed in a motion for summary judgment, a movant must show (1) that there is no genuine issue of material fact, and (2) that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966. A “material fact” is any fact that may be important, valuable, or critical in deciding a case, the suppression of which may reasonably result in a different decision. The movant, then, bears the burden of showing that there is no genuine issue of material fact, but the movant need only identify the absence of factual support for one or more elements essential to the opposing party’s claim. If the opposing party then fails to produce factual support for the challenged elements of his claim, summary judgment in favor of the movant is proper.

In the present case, Thomas Nearhood incurred injuries while exercising on a squat machine at an Anytime Fitness gym in Pineville, Louisiana. The accident happened as a result of Nearhood’s failure to properly secure the weighted bar with the latching mechanism provided for that purpose. One year after sustaining his injuries, Nearhood filed suit against a number of defendants, including Precor, the manufacturer of the squat machine. In his petition, Nearhood claimed that the squat machine did not provide sufficient warnings or instructions to prevent injuries such as his.

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city-dark-dawn-248159-1024x683The state is not a guarantor of the safety of motorists using their roads, meaning you must be vigilant and careful while driving. See Thompson v. State of Louisiana, 701 So.2d 952 (La. 1997). But what happens when something falls on your car while you are driving on a public street, are you out of luck? Or is the state or owner of the fallen property potentially liable? Typically, the owner of an item (i.e., a tree) is liable for the damages caused by its “ruin, vice, or defect,” if it’s shown that they knew or should have known of the “ruin, vice, or defect” that caused the damage, and that the damage could have been prevented if the owner exercised reasonable care. La. C.C. art. 2317.1. However, if the damage is caused by “an act of God,” also known as force majeure, defined as an unusual, sudden, and unexpected force of nature, then this results in no individual being held liable for the damage caused. Brown v. Williams, 850 So.2d 1116 (La. Ct. App. 2003).

In 2007, Larry Mitchell (“Mr. Mitchell”) and a passenger were driving on Highway 80 in Ruston, Louisiana, when a large tree, estimated to be 70 feet tall, fell across the highway onto the front of Mr. Mitchell’s vehicle. The tree was near the highway but on the property of Beverly Hill-Hercules (“Ms. Hercules”). As a result of the tree falling on Mr. Mitchell’s car, he suffered severe fractures in his spine and nose and was bruised and lacerated. In fact, at the time of the trial in 2014, Mr. Mitchell was still required to wear a cervical collar for stabilization. Mr. Mitchell sought damages from Ms. Hercules, the Department of Transportation and Development (DOTD), and their insurers, alleging that the tree was sick (i.e., defective), and should have been removed prior to the accident.

At trial, DOTD and Ms. Hercules argued that the accident was “an act of God,” meaning they were not liable for the damages caused. Through testimony presented it was clear that the DOTD did not require its employees to examine all trees along the highway looking for diseased trees, rather, Tommy Lane Boddie (“Mr. Boddie”), a DOTD employee, testified that he only looked for and reported trees that were leaning and were in danger of imminently falling. Further, Ms. Herculeses’ deposition, which was read into the record, provided that it was very windy on the night of the accident and the tree was completely uprooted.

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68-photo-3_26_19-819x1024Can an inmate be awarded damages from an injury caused by the employees of the correctional facility? According to the 5th Circuit Court of Appeal, the answer is yes. Mr. Miller was an inmate at Elayne Hunt Correctional Facility when an employee of the facility pulled him out of his bunk and threw him on the ground. Miller sued Captain Credit and the State of Louisiana for negligence under state law as well as violations of the 8th amendment under 42 U.S.C. §§ 1331 and 1983. Miller claimed that Captain Credit, as an employee for the state of Louisiana violated his civil rights with his act of negligence and that the federal district court has jurisdiction in this case.

When the case went to trial, a jury found that the employee acted with negligence and therefore awarded Mr. Miller damages. Captain Credit moved to alter the judgment under Fed. R. Civ. P. 56(e), arguing that Miller failed to prove a causal relationship between his shoulder injury and the negligent act. The district court denied their motion and they appealed the Fifth Circuit.

Federal Rule 59(e) gives the district court the authority to alter or amend a judgment when they have committed a “manifest error of law or fact”, and the appellate court reviews for an abuse of discretion. See Schiller v. Physicians Res. Grp., 342 F.3d 563,567 (5th Cir. 2003). For this type of appeal, the district court’s decision and the decision-making process need only be reasonable for the decision to be affirmed.

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