Articles Posted in Negligence

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akira-hojo-502567-unsplash-1024x683Most Louisiana residents understand the liability they may incur if they do not properly fence a backyard pool. But what about other, less obvious drowning hazards, such as a church’s baptismal pool? Who is held accountable for the failure to protect children from falling in? Typically, a church is part of a diocese and must meet the general guidelines established by the diocese in order to maintain its affiliation. For instance, the First Assembly Church of God (“First Assembly”) in Ruston, Louisiana is affiliated with the  Louisiana District Council of the Assemblies of God (the “DC”) and the General Council of the Assemblies of God (the “GC”). After a tragic accident involving the toddler of a First Assembly family, Louisiana’s Second Circuit Court of Appeal was called upon to determine whether the DC and the GC had sufficient control over First Assembly to be liable for the church’s negligence.

In 2013, Irene Che and her 22-month-old daughter attended services at First Assembly. At some point during the service, the child was found submerged in the church’s baptismal pool. Although she survived, Che’s daughter suffered brain damage that left her unable to walk, talk, or feed herself. In her lawsuit, Che alleged that First Assembly was negligent in leaving the baptismal pool unguarded, and named the church, the DC, and the GC as defendants. Che argued that the DC and the GC were liable under the theory of respondeat superior, which establishes that a person or business is responsible for the damages caused by the acts or omissions of persons over whom it exercises control. La. C.C. art. 2317. The rule has been extended by the Louisiana Civil Code to include employers, who are responsible for the damage caused by their employees in the exercise of the functions within the scope of their employment. La. C.C. art. 2320, The DC and the GC filed a motion for summary judgment contesting the application of respondeat superior to the relationship between themselves and First Assembly. The trial court granted the motion and dismissed the DC and the GC as defendants; Che appealed.

The Second Circuit analyzed the relationship created by First Assembly’s contracting with the DC and the GC to gain the right to affiliate with the Church of God.  The Court, noting that the single most important factor when determining whether an employer-employee relationship exists — a step necessary to invoke respondeat superior — is whether the “employer” has the right to control the work or actions of the “employee,” found that there was no evidence that the DC and GC maintained such right over First Assembly and its employees. The Court further analyzed the DC’s and the GC’s Constitutions and By-laws, concluding that those operating documents failed to establish a relationship between the two bodies and First Assembly that could support the invocation of respondeat superior. As a result, the Court affirmed the trial court’s dismissal of the DC and the GC as defendants in the case, leaving Che to pursue her negligence claim against First Assembly alone.

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metal-1314941-1-1024x680It is all too easy to forget just how dangerous driving can be. In addition to human factors such as sleepiness, being distracted, and stress, there is also the unpredictability of the road. Uncontrollable circumstances such as the weather or wild animals that dart into traffic can turn a regular commute into a devastating experience. But who is to blame when something unforeseeable, such as a force of nature, causes a highway catastrophe? This issue was addressed after a multi-vehicle accident on Interstate 10 near the Michael Boulevard exit in New Orleans on December 29, 2011.

Randall White’s car was the 25th of the 40 vehicles involved in the accident. White and his wife filed a lawsuit against the Louisiana Department of Transportation and Development (“DOTD”), the City of New Orleans, and the Little Pine Limited Partnership “Little Pine.” The Whites claimed that the pile-up was caused by thick fog combined with smoke from a marsh fire that had been burning since August 2011 on land owned by Little Pine. According to the Whites, the fog and smoke, in combination with faulty street lights, compromised visibility on the highway and caused the accident.

The DOTD filed a motion for summary judgment, a motion for judgment as a matter of law rather than on the merits of the case. La. C.C.P. art. 966. The DOTD argued that it had no notice of the fog in the area, had no responsibility for the street lighting issue, had no duty to protect the Whites from the fog or smoke, and it was shielded by governmental immunity. To support the motion, the DOTD relied on affidavits from DOTD engineers, the New Orleans Public Works Director, and the New Orleans City Council, as well documents such as the New Orleans Police Accident Report and the National Weather Service Report from the date of the accident. The trial court granted the motion and dismissed the Whites’ claims. In response, the Whites appealed to Louisiana’s Court of Appeal for the Fourth Circuit.

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modernist-hospital-facade-1223549-768x1024Generally, when an accident occurs on a property that is the result of the property owner’s negligence, it is presumed that the property owner is liable for the person’s injury. However, when liability does not exist, a motion for summary judgment is a procedural device that the defendant in a lawsuit can use to dismiss the plaintiff’s claim. Under Louisiana law, a motion for summary judgment will be granted if the pleadings and discovery show there is no genuine issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. See La. C.C.P. art. 966.

A trip-and-fall case offers an example of a defendant’s successful use of summary judgment. On October 11, 2007, James Dawson tripped and fell on the sidewalk near the entrance to Charity Hospital in New Orleans. He tripped on a crack in the sidewalk and suffered injuries as a result. Contending the State of Louisiana, as the owner of the hospital, was liable for failing to maintain the sidewalk, Dawson filed a lawsuit.

The State moved for a motion for summary judgment. In its motion, the State disputed Dawson’s allegation that it had authority over the sidewalk where his injuries occurred, arguing that without proof of authority, it could not be liable for Dawson’s injuries. See La. R.S. 9:2800. The State supported its motion with affidavits from Frederick L. Wetekamm, an engineer for the Louisiana Department of Transportation and Development and Robert J. Arnould, a maintenance supervisor for Charity Hospital. Wetekamm explained that the State was only responsible for maintaining its right-of-way on Tulane Avenue which began two blocks beyond the hospital. Arnold stated that Charity Hospital maintenance staff conducted no activities affecting the condition of the sidewalk in front of the hospital.

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massage-chair-1479054-769x1024A therapeutic massage can offer many medical benefits. But if the massage therapist uses too much force, or applies force in an inappropriate way, severe injury to the patient can result. In such cases, an experienced personal injury attorney may be needed in order for the patient to recover damages for medical bills, lost time from work, as well as pain and suffering.

Dr. Maureen Jones received a Swedish massage at the Paris Park Salon in Baton Rouge on October 11, 2007, from therapist Larry Ashton. Jones claimed that during the massage, Ashton was very rough and applied heavy pressure and force, which caused Jones to experience pain and discomfort. The next day, Jones suffered continued sharp and burning back pain. The pain radiated into her buttocks and right leg, where bruising was also present.

Jones sought medical treatment, during which an MRI revealed that she had sustained a rupture of her L4-L5 disc. Jones first attempted to treat the condition without surgery, but eventually, due to continued debilitating pain, she underwent a left L4-L5 discectomy operation. Jones then filed a lawsuit against Ashton, Paris Park Salon, and the salon’s insurance carrier, ABC Insurance Company (“defendants”). Jones alleged that the message was negligently performed by Ashton, whose negligence breached the reasonable standard of care causing serious, permanent, and disabling injuries.

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57-Email-3-26-19-1024x633Imagine shopping for flooring on a Saturday.  The store is crowded and the samples of luxury vinyl tile are starting to all look the same.  The flooring store has graciously placed a bench in the showroom. Much to everyone’s embarrassment, however, the bench collapses under the weight of a patron.  Who is responsible for the injuries both to pride and physical body in this situation? For one Gretna, Louisiana woman, a lack of evidence on the cause of the malfunction caused her lawsuit to collapse as well.  

Schirelle Wiltz was at the Gretna Floor & Decor when the bench she rested upon suddenly collapsed.  The bench had been in the store without incident for two years prior to Ms. Wiltz’s accident. The bench apparently had a hidden manufacturing defect in the metal frame unbeknownst to Floor & Decor.  Ms. Wiltz filed a lawsuit in the Twenty-Fourth Judicial District Court in the Parish of Jefferson alleging that Floor & Decor was negligent in failing to discover the bench’s defect and in failing to warn that the bench had a 300-pound weight limit.  The District Court dismissed the lawsuit, and Ms. Wiltz appealed to the Louisiana Fifth Circuit Court of Appeal.

In a negligence case involving a dangerous defect, the injured party must show the dangerous item was in the custodian’s control, had a defect possessing an unreasonable risk of harm which caused damage, and the custodian knew or should have known about the defect.  See La. C.C. art. 2317.1.  In a case involving a merchant, an injured party must prove the merchant’s premises contained a foreseeable, unreasonable risk of harm, merchant knew or should have known of the danger, and merchant failed to exercise reasonable care.  See Thomas v. Caesars Entm’t Operating Co., 106 So.3d 1279 (La. Ct. App. 2013).  An injured party must also prove the standard elements of a negligence case.  Collins v. Home Depot, U.S.A., Inc., 182 So.3d 324 (La. Ct. App. 2015).

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link-30-email-3-26-19-1024x683Slip and fall cases seem to go with grocery stores like peanut butter goes with jelly.  With all that slick inventory, it is surprising there are not more accidents. Who is responsible for injuries from these accidents?  As with many legal issues, it is complicated. For one man out of Slidell, a lack of evidence caused his case to fall flat and release the grocery store from all liability.        

 John Nash slipped on some rice and fell one August day while shopping at Rouse’s Market in Slidell.   Approximately five to ten minutes prior to the fall, a Rouse’s Market’s floor maintenance employee swept the aisle where Mr. Nash fell. A vendor stocking that same aisle verified the floor was swept at that time.  A floor manager’s inspection report confirms that the aisle was inspected minutes before the incident and no substances were discovered on the floor. Yet Mr. Nash filed a lawsuit against the supermarket. The lawsuit, however, was dismissed by the Judicial District Court for the Parish of St. Tammany.   The District Court agreed with Rouse’s Market’s defense that the store did not have actual or constructive notice of the condition causing the fall. Mr. Nash appealed to the Louisiana First Circuit Court of Appeal.

In Louisiana, a merchant owes a duty to persons using their premises to keep the aisles, floors, passages, in a reasonably safe condition.  La. R.S. 9:2800.6(A).  In addition, an injured party must prove that the condition causing the injury posed a foreseeable and unreasonable risk of harm, and the merchant had actual or constructive notice of the danger and failed to exercise care in removing the danger.  See Mills v. Cyntreniks Plaza LLC, 182 So.3d 80 (La. Ct. App. 2015).   In the absence of actual notice of an unreasonably dangerous condition, an injured party must show the dangerous condition existed for some period of time before the fall and that such time was sufficient to place the merchant on notice of its existence. See Clark v. J-H-J., Inc.,  136 So.3d 815 (La. Ct. App. 2013).   There is not an explicit rule on how much time is a sufficient amount of time to have put the merchant on notice; instead, the facts of each case are weighed.  

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take-your-time-1316969-1024x681No one wants to think about how to find a good lawyer or whether they should file a lawsuit after they’ve been injured. Most likely, they are preoccupied with trying to heal. But it is critical to keep in mind that many claims may be time-barred, and a lawsuit cannot be filed after a certain amount of time has passed. An injured party must get one’s affairs in order quickly and decide whether they should sue a potentially negligent party, because there may be a narrow time window in which to file a lawsuit.  

Mary Beauchamp claims that she was injured by a piece of merchandise which fell from the shelf of a local Salvation Army thrift store on April 26, 2010. Unfortunately, she did not file her lawsuit for damages until November of 2013, over two and a half years after the incident. Louisiana acknowledges that some actions are subject to liberative prescription, which means a claim is barred because of the amount of time that has passed since the incident occurred. La. C.C. art. 3447. Other states refer to this as a statute of limitations. In actions such as Ms. Beauchamp’s, the liberative prescription period is one year. She clearly exceeded that by over a year and a half. However, there is case law which provides the plaintiff with an opportunity to show why a lawsuit wasn’t filed in time, and the prescriptive period will be interrupted or suspended. See LaForte v. Gulf Island Fabrication, Inc., 65 So. 3d 182, 185 (La. Ct. App. 2011). This is a means of stopping the clock, sometimes called “tolling.” The Louisiana First Circuit Court of Appeal heard Ms. Beauchamp’s appeal after the trial court found her complaint to be prescribed, or foreclosed from continuing.

The Court of Appeal mentioned that Ms. Beauchamp had filed a complaint on April 25, 2011, just under a year from the incident and an event which could potentially aid her in suspending the prescriptive period. But neither Ms. Beauchamp nor the Salvation Army requested the court to take judicial notice of the prior lawsuit so it could not consider this factor in its decision. Also, Ms. Beauchamp refers to exhibits in her appeal, but no exhibits were offered into evidence at the trial level. The Court of Appeal is unable to review any evidence, not in the record at the trial level. If Ms. Beauchamp had a case for interrupting the prescriptive period, she did not make it visible to the appellate court. This mistake turned out to be costly.

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handcuffs-1484704-1024x768A police pursuit of a suspect can be a dangerous scenario for all individuals in the vicinity of the pursuit. But what happens when the officer collides with a party while in pursuit, and your car is then struck due to the first accident? The First Circuit Court of Appeal for Louisiana recently addressed the issue.

On February 22nd, 2014, Slidell Police Officer Justin Lee Stokes (“Stokes”) was traveling at a high rate of speed, northbound on Highway 11. Lee’s patrol vehicle was in pursuit with both the emergency lights and siren activated. Lee approached the intersection of Highway 11 and Gause Boulevard, when a car traveling south on Highway 11 driven by Ian Jurkiewicz (“Jurkiewicz”), made a left hand turn directly in the path of Stokes’ pursuit. Stokes’ patrol vehicle collided with Jurkiewicz’s vehicle, which then struck a second vehicle, driven by Jennifer Bullock (“Bullock”).

Bullock filed a lawsuit for damages against the City of Slidell, Stokes, Jurkiewicz, and United Services Automobile Association (“USAA”) for damages stemming from the accident. The lawsuit was filed in the Twenty-Second Judicial District Court for the Parish of St. Tammany, Louisiana. Bullock made a motion for the partial dismissal of Jurkiewicz and USAA, which was granted by the District Court. Stokes and the City of Slidell made a motion for summary judgment because police officers are immune from liability when the acts of the officer are within the scope of the power and duties vested in a police officer. La. R.S.9:2798.1 (2014). When an officer is in pursuit of an actual or suspected violator of the law, the officer may exceed maximum speeds limits so long as the officer does not put life or property in danger. La. R.S.32:24 (2014). The district court granted the motion for summary judgment. Bullock then filed an instant appeal in regard to the decision of the district to grant the summary judgement motion, arguing that it was incorrect to determine that there was not a genuine issue of material fact and that La. R.S.9:2798.1 and La. R.S.32:24 were not applicable to the facts in this case, because she Bullock believed that speed was not the cause of the accident.

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wire-fence-1221022-1024x768When our loved one is under the care of others, we expect him or her to be free from pain and neglect. Unfortunately, the authorities in charge of our loved one can make mistakes, and sometimes, the mistakes can be fatal. In such cases, we would likely blame the authorities in charge and desire some sort of punishment upon them. However, just because the fault may lie with the authorities does not mean that punishment is inevitable. The case of Jamie Zaunbrecher is an example.

Zaunbrecher was an inmate at the Ascension Parish Jail. Two nurses, Robyn Richard and Michelle Gaudin, were in charge of his medical care. When Zaunbrecher arrived at the jail, he told the medical staff that he had pre-existing medical conditions, but did not tell them of his diverticulitis, which ultimately contributed to his death. On February 18th, six days before his death, Zaunbrecher submitted a “Medical Request Form” (“Form”) in which he sought “emergency” care. More specifically, he wrote that he had severe pain in the right side of his back and that his pain medication was not being replenished. The day after Zaunbrecher’s submission, Nurse Richard gave Zaunbrecher Ibuprofen. On February 20th, Zaunbrecher submitted another Form complaining of back pain and constipation. Nurse Richard provided Tylenol and a laxative. Zaunbrecher also asked for a blood test, but this request could not be granted as only the nurse practitioner, who was not available, could grant it. From February 21st, Nurse Gaudin took care of Zaunbrecher and provided laxatives in order to aid his constipation. Though Nurse Gaudin thought Zaunbrecher was getting better, on February 24th, Zaunbrecher grew extremely ill. He was brought to a hospital, but by the time he arrived, he had passed away. Zaunbrecher’s representative sued Richard and Gaudin for not providing proper medical treatment and violating Zaunbrecher’s Eighth Amendment Right.

Nurses Richard and Gaudin responded to the lawsuit by invoking qualified immunity. Qualified immunity is a legal doctrine that protects government workers from being sued for acts done under the scope of their employment. The Trial Court refused to grant qualified immunity, but the Appeals Court stated that qualified immunity was appropriate. When a defendant invokes qualified immunity, the plaintiff has to first show that the defendant violated a constitutional right. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005). Here, the plaintiff’s argument was that Richard and Gaudin violated Zaunbrecher’s Eight Amendment Right by acting indifferently to his medical needs. To show this indifference, the plaintiff had to prove that Richard and Gaudin knew that Zaunbrecher “face[d] a substantial risk of serious bodily harm.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). The plaintiff also had to prove that Richard and Gaudin knew this risk and failed to mitigate this risk.

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school-bus-2-1518496-651x1024Losing a child is always an extremely difficult experience for a parent to go through, and it is even more difficult when the death is a result of negligence. Normally when negligence occurs, the parents bring forth a wrongful death lawsuit against the negligent party.

On March 14, 2011, six-year-old La’Derion Miller tragically passed away following a school bus accident when La’Derion attempted to board the school bus and the bus door closed on his arm. Unfortunately, La’Derion could not free himself and he tripped and fell on the road, where he was run over by the bus. As a result of the accident, La’Derion’s parents, Marcus Miller, and Heather Jagnauex, filed separate wrongful death lawsuits naming Harold Thibeaux (the bus driver), Lafayette Parish School Board, and American Alternative Insurance Corporation as defendants. Ms. Jagnaeux and Mr. Miller claimed their son died as a result of the defendants’ negligence.

Mr. Miller’s and Ms. Jagnauex’s separate lawsuits were consolidated for trial. Ms. Jagneaux ended up settling outside of court for $275,000 and subsequently dropped from the case. At trial, the trial court ruled in favor of Mr. Miller awarding him $50,000 in damages for his survival action, $250,000 in damages for his wrongful death claim, and court costs. The defendants disagreed with the trial court’s decision and appealed the decision to the Louisiana Supreme Court.

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