Articles Posted in Negligence

by

aussi-police-sign-1443987-1024x714Police officers are tasked with enforcing the law and upholding civic order, but what happens when a person feels that a police officer ignored his or her constitutional rights; will the officer be held accountable? A case arising out of Alexandria examines this question through the issue of excessive force and the qualified immunity defense involved in police officer shootings.

Darnell Willis called 911 on November 26, 2008, requesting assistance for her intoxicated boyfriend, Richard Goss. Officer Clinton Fairbanks and emergency medical technicians (EMTs), Russell Boney and Joshua Tam, responded. Upon arrival, Fairbanks spoke to Goss from the doorway and signaled the EMTs to enter. As the EMTs left to question Willis, Boney noticed Goss move from the center to the left side of his bed, so Boney returned and Fairbanks remained in the doorway. Boney could not hear or see inside, so Fairbank’s testimony is the only evidence about Goss’ behavior.

According to the testimony, Fairbanks asked Goss what the problem was and Goss answered that both he and [Fairbanks] had weapons. Goss continued to scoot towards the head of the bed and Fairbanks asked Willis whether Goss had weapons. Before Willis answered, Fairbanks, heard Goss say that he had his weapon too. Goss reached the side of the bed and moved his hand toward the bottom of the mattress. Boney heard Fairbanks yell several times at Goss to put his hands up. Fairbanks drew his weapon and told Goss to not ‘do it’, but Goss kept moving. Fairbanks then shot Goss three times, killing him.

Continue reading

by

pregnant-1-1431161-683x1024While having a child and starting a family is something that many couples look forward to in their lives, pregnancy can be very painful and burdensome on the mother. There are many drugs that can help prevent the negative side effects of pregnancy, like nausea and morning sickness, however, those drugs can sometimes do more harm than good. Nothing is worse than going through a difficult pregnancy, and then having a child born prematurely with birth defects because of drugs that were supposed to help.

One case on appeal from the Eastern District of Louisiana involves such a situation. Lindsey Whitener (“Ms. Whitener”) had a son who was born both prematurely and with birth defects after she was prescribed metoclopramide in order to treat her nausea and morning sickness that she frequently experienced during her nine months of pregnancy. Ms. Whitener and her husband filed a lawsuit against a number of different pharmaceutical companies, and their main argument was that these companies had promoted the use of the drug to treat morning sickness, which was an “off-label” use. An off-label use means that a drug is prescribed for uses that are not approved by the FDA. The District Court dismissed the claims brought forth by the Whiteners because they failed to show that the defendants promoted these off-label activities. The Whiteners appealed the decision of the District Court, and the case went before the United States Court of Appeals for the Fifth Circuit.

Ms. Whitener began experiencing morning sickness very early on in her pregnancy and was prescribed the metoclopramide shortly after she began to complain of the sickness to her doctor. Metoclopramide is a generic version of the drug Reglan, and Reglan does not list morning sickness as an FDA approved the use. In 2010, the Whiteners sued PLIVA, Inc., Barr Laboratories, Inc., Teva Pharmaceutical Industries, Ltd., Alaven Pharmaceutical L.L.C., Meda Pharmaceuticals, Inc., and Schwarz Pharma, Inc. PLIVA, Barr, and Teva manufactured metoclopramide; and Alaven, Meda, and Schwarz manufactured Reglan. The Whiteners first claimed that the defendants had failed to warn them about the dangers of using metoclopramide during a pregnancy. Some of the defendants however relied on the Supreme Court decision from PLIVA, Inc. v. Mensing which held that, “because federal law requires generic drug labels to be the same at all times as corresponding brand-name drug labels, state-law inadequate warning claims based on a generic drug manufacturer’s failure to provide a more adequate label are preempted.” HPLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577-78 (2011). Essentially, this means that when the state and federal drug laws conflict, the federal drug laws will preempt or replace the state law. Ms. Whitener’s state law claim that the defendants had failed to warn them about the dangers of the drug conflicted with the federal law and the District Court thus held that the state law claim was preempted.

Continue reading

by

bus-wreck-1390308-1024x768In Louisiana, a party is responsible for the full extent of injuries he or she causes to another. Lawsuits stemming from these incidents usually arise over which party is more at fault or if any of the injuries were actually caused by the event at issue. Whether the party at fault has to pay the undisputed medical expenses is rarely at the center of these disputes, however, the following case from St. Bernard Parish, details why an injured party had to bring that very issue to appeal.

In 2010, Alfred Ronsonette, who was disabled and used a wheelchair, boarded a St. Bernard Urban Rapid Transit bus. Mr. Ronsonette placed himself in an open space on the bus, but the bus driver, Edith Cantrell, did not tie down his wheelchair, as is standard. The bus made a right turn, and the wheelchair fell over and took Mr. Ronsonette with it. He was immediately taken to the emergency room.

Mr. Ronsonette, and his wife, Darrall Ronsonette, filed a lawsuit against the St. Bernard Parish Government (St. Bernard). The trial court found St. Bernard 100 percent at fault for the accident, but only awarded Mr. Ronsonette $10,155.76 in general damages and medical expenses. The court did not award Mrs. Ronsonette anything in loss of consortium damages. The Ronsonettes appealed this decision based on all three of these awards.

Continue reading

by

abandoned-hospital-1-1227909-1024x683The average person experiences a great deal of emotion after a serious injury. The injured person is rushed to the hospital and places a great deal of faith in doctors to treat and diagnose injuries. Sometimes a medical professional fails to accurately diagnose a patient’s injuries, which can lead to a potential lawsuit against the doctor, hospital, or usually both.

In a civil trial against a medical professional, the party bringing the lawsuit must inform the court of their legal complaint within a specific period of time. For medical malpractice claims in Louisiana, that time period is one year. La. R.S. 9:5628. If the claim against the medical professional is not brought within one year, the injured party is foreclosed from recovering on that claim and ever bringing it in court again. In these situations, a related issue arises: when does that one year period begin? A recent Louisiana case answered this question.

Donna Hickman brought a lawsuit against Christus St. Frances Cabrini Hospital (Cabrini) and various doctors after she sustained injuries in a car accident. On the night of the car accident, January 21, 2012, Ms. Hickman was rushed to the hospital and given a CT scan. The doctors found the results of the scan concerning and recommended that Ms. Hickman visits her regular physician for additional attention.

Continue reading

by

rock-climbing-1-1357430-683x1024Lest anyone think college is all about classrooms and books, many universities today offer a panoply of extra curricular amenities for students to enjoy. One of the main attractions is student recreation centers. At Louisiana State University (LSU), the University Student Recreation Center (UREC) is a place where students can go with friends and guests to exercise and participate in recreational activities such as indoor rock wall climbing.

On the evening of December 3, 2008, LSU Senior Brandy Fecke and a fellow classmate visited the indoor rock climbing facility at the UREC to complete a required assignment for an Outdoor Living Skills Activity course. Ms. Fecke signed a Rock Climbing Wall Participation Agreement and stated that she had previous rock wall climbing experience. Ms. Fecke indicated that she wanted to climb the easiest wall, which was a wall that did not require her to wear a harness or ropes. Ms. Fecke’s classmate was required to stand behind her and act as a spotter in case Ms. Fecke needed assistance.

After Ms. Fecke and her classmate received instructions and a climbing demonstration, Ms. Fecke began climbing up the wall. Upon reaching the top of the wall, Ms. Fecke fell thirteen feet to the ground where she sustained multiple fractures to her left ankle. Ms. Fecke’s injury was so severe that she underwent three major surgeries and required additional surgeries at the time of the lawsuit, including either a permanent ankle fusion or an ankle replacement. Ms. Fecke and her parents, Stephen and Karen Fecke, sued the LSU Board of Supervisors (Board) for damages Ms. Fecke sustained as a result of the accident. A jury returned a verdict in favor of Ms. Fecke and her parents and the Trial Court adjusted the award amount to $1.4 million. The Board appealed the Trial Court’s judgment and award to the Fecke family.

Continue reading

by

graves-1-1504523-1024x686Facts are one of the foundations of a successful lawsuit. In an effort to thwart a plaintiff’s chance at relief, a defendant may file an exception of no cause of action in response to a plaintiff’s complaint. An exception of no cause of action alleges that the plaintiff’s lawsuit has no legal validity, and therefore, the plaintiff has no claim. The following case out of Orleans Parish illustrates such an objection and the importance of facts, especially when those facts validate a claim that could be barred by immunity.

In 2013, Patrick and Crystal Simmons’ children were placed in foster care. In April of that same year, the State of Louisiana notified Mr. and Mrs. Simmons (Plaintiffs) that their son Eli had been transported to a Hospital in New Orleans. Eli died shortly after being admitted, prompting Plaintiffs to file a lawsuit asserting gross and/or intentional negligence by the coroner’s office and intentional infliction of emotional distress. See Hanks v. Entergy Corp., 944 So.2d 564 (La. 2006). Plaintiffs alleged that the coroner’s office received Eli’s body, but failed to perform an autopsy to determine the child’s cause of death. Furthermore, in an amendment to their initial complaint, Plaintiffs averred that their son’s body was misplaced by the coroner’s office because the coroner’s office could not find the body of the child until many months after the child passed. When the child’s body was finally recovered, the coroner’s office, without notifying the family, disposed of the body by cremation and buried the remains in an undisclosed burial location.

In response to Plaintiffs’ cause of action, the coroner filed motions with the court seeking to dismiss the case. The Trial Court granted Defendant’s motions, reasoning that statutory duties imposed on Defendant are for the benefit of the public, not for the private individual. As such, the Trial Court held that Plaintiffs did not have a private cause of action and that the coroner’s office was entitled to statutorily limited immunity from Plaintiffs’ claims.

Continue reading

by

chairs-2-1489343-1024x768In Louisiana, the law allows a person to seek financial compensation against another person who has caused his or her injuries or failed to prevent the injuries if such a duty existed. A person has a responsibility not to harm others by their actions or with things in their possession. A Louisiana landlord has a special duty to his or her tenants to provide a safe building and will be held responsible if a tenant is injured as a result of the Landlord’s failure to repair a defect in the building that he or she knew about or should have known about. The following case illustrates some of these issues.

Jennifer Hooper was injured on the porch of her rented apartment when her crutches got stuck in a small, preexisting hole. As it turns out, the floorboards were rotten and Ms. Hooper fell right through the porch, fracturing her right femoral neck. Ms. Hooper sued her landlords, Val and Mary Brown, and their insurance company, Encompass Property and Casualty Company. The Browns attempted to terminate the case before it started by filing what is called a Motion for Summary Judgment. By filing this motion, the Browns asked the Trial Court to decide the case in their favor, without going through the formal development of the case. This would have ended the case before a jury had the opportunity to hear it. The Trial Court denied the motion, however, because there was a dispute as to whether the hole that Ms. Hooper stepped in was “open and obvious to all.” The Browns appealed the denial of the motion to the Louisiana Fourth Circuit Court of Appeal.

Ms. Hooper signed an apartment lease with the Browns in January 2011 and renewed the lease in 2012. Upon moving into the apartment, the Browns alerted Ms. Hooper to the hole in one of the porch floor boards. Several times over the course of her tenancy, the Browns promised to fix the hole but never did. Ms. Hooper argued that the Browns were responsible for her injuries by failing to adequately inspect and maintain the premises and warn her of the unreasonably dangerous condition. The Browns averred that the hole in the porch floor was open and obvious to all and thus, they had no duty to warn Ms. Hooper of the hole. Effectively, the Browns argued that Ms. Hooper should have seen the hole and avoided it all on her own.

Continue reading

by

sidewalk-cross-1177206-1024x681Each year, thousands of people suffer from slip and fall accidents. From a legal perspective, it can be difficult to determine who, if anyone, is at fault. For example, in some slip and fall cases, a property owner can be held liable for the other party’s injuries. Property owners owe a duty of care to persons who use their premises. Owners are expected to keep the grounds in a reasonably safe condition.

The following case provides a good illustration of some of the issues that can arise when litigating a slip and fall accident. Reba Campbell suffered injuries after she slipped and fell on a mildewed area of sidewalk adjacent to the Evangeline Parish Medicaid Office. Mrs. Campbell and her husband (Plaintiffs) filed suit against the Evangeline Parish Police Jury, as owners of the Medicaid Office building, and the State of Louisiana, Department of Health and Hospitals, as lessee of the building. The State interjected a cross-claim against the Police Jury that called into question their liability as leaseholders. The State believed that the Police Jury should be held liable because it owned the property on which the hospital was located. The Police Jury countered that the State had the responsibility for maintaining the sidewalks in front of the building.

Plaintiffs sought a declaratory judgment from the Trial Court and the Trial Court held that the State was liable because it failed to put the Police Jury on notice of the problems with the sidewalk. The Trial Court granted the Police Jury’s oral motion for judgment and dismissed the Police Jury from the lawsuit.

Continue reading

by

power-2-1315569-683x1024When a person is injured, a countdown begins. If you think you have a lawsuit, you need to file that lawsuit within a certain amount of time or else you will lose the right to that claim. Similar to what some states would call a statute of limitations, Louisiana uses something called “liberative prescription” or just “prescription.”  Under this legal doctrine, after a certain amount of time has passed, a plaintiff can no longer bring their claim.  The claim is treated as if it never came into being. In some cases, this period is one year. See La. C.C. art. 3492.  A defendant can avoid a claim that has passed this period under the defense of peremptory exception, which dismisses a claim for being untimely filed. For some plaintiffs, there is relief in the form of the legal doctrine contra non valentum.  Under this idea, the time period to bring a claim does not begin on the day the injury occurred but rather when the person realizes what has happened with enough certainty to file a lawsuit. See Bailey v. Khoury, 891 So.2d 1268 (La. 2005). Prescription exists to keep parties from being surprised by claims from events that have happened years in the past.  Contra non valentum likely exists to help people who have been prevented in some way from discovering exactly who or what has caused their injury.

The Louisiana Fifth Circuit Court of Appeal recently applied these legal theories on a work-related illness. Natividad Tenorio worked from 1981 to 1988 in his employer’s (Alpha Technical Service) yard removing radioactive substances (oilfield-generated radiation or OGR) from oil and gas pipes.  In November  2009, Mr. Tenorio was diagnosed with throat cancer.  In 2013, a former co-worker informed Mr. Tenorio about the dangerous airborne radiation to which the workers had been exposed during that period of years. One year later, Mr. Tenorio brought a lawsuit against numerous gas and oil companies that had used the radiation-generating pipes. The Defendants asserted their affirmative defense of peremptory exception under the notion that the time period for prescription had passed.  The Trial Court sided with the Defendants and dismissed the lawsuit; Mr. Tenorio appealed.

On appeal, Mr. Tenorio argued that the Trial Court should not have deemed his lawsuit “prescribed” after only one year.  He claimed that the grace period should have been extended under the theory of contra non valentum since he did not discover that his work put him at risk of cancer until four years after his diagnosis.  Defendants argued that Mr. Tenorio should have known the cause within the year following his diagnosis and that he did not show any evidence of anything that may have prevented him from discovering that the radiation from his former job led to his cancer.  The Court of Appeal noted that under these circumstances, the burden of proving that his claim was not prescribed rested with Mr. Tenorio.  As such, he offered evidence that showed he only found out about the radiation in 2013.   However, the Court of Appeal found for the Defendants, reasoning that when a person fails to realize that he or she has a potential claim through only his or her own neglect or ignorance, that person should not be granted a grace period.  Moreover, a year-long prescription period in a personal injury case such as this one is deemed to begin when a plaintiff knows or should know the relevant facts.  The Court of Appeal believed that Mr. Tenorio should have researched possible causes of his cancer immediately after the diagnosis in order to be able to begin his lawsuit within that first year. But because he did not, the Court of Appeal found that Mr. Tenorio was unreasonably late in filing his lawsuit and the Trial Court’s dismissal of his claim was upheld.

Continue reading

by

nz-police-car-1313773-1024x450Driving is a dangerous and daily task for many people and becomes even riskier when roads aren’t conducive to safety. Adding modern distractions like cell phones and a splash of alcohol to the equation creates the perfect storm for a terrible collision. An incident in Lafayette, Louisiana demonstrates how the culmination of these factors can create difficulties when a court is trying to determine liability and damages.

Taylor Burtner (Mr. Burtner) sustained a complex tibia and fibula fracture of his right leg when he was injured in a car accident with Lafayette City Police Officer Michael Milazzo (Officer Milazzo). As a result of the accident, Mr. Burtner underwent three separate surgeries which cost over $67,000.

Mr. Burtner was turning onto West Pinhook Road at its intersection with Jomela Drive when a speeding Officer Milazzo struck his vehicle. At trial, it was determined that Mr. Burtner had been drinking earlier in the night, but, although his exact blood alcohol concentration was at dispute, it was not disputed that he was under the legal limit at the time of the crash. Mr. Burtner was turning left onto West Pinhook after stopping at the stop sign on Jomela Drive, but this intersection contains a curve right before Jomela Drive for drivers on West Pinhook. Officer Milazzo was driving on this curve, speeding at a contested level between 10 and 15 miles over the speed limit. In addition to this bad combination, additional factors impaired the motor skills of both drivers. The trial jury found that Mr. Burtner was distracted by a passenger texting at the time he was turning and Officer Milazzo’s vision was obstructed by trees along the curve of West Pinhook. With everything taken into account, the jury found Mr. Butner to be 90 percent at fault in the wreck and Officer Milazzo to be 10 percent at fault. In addition, the jury awarded Mr. Butner $67,072.12 in medical damages and $40,000 in general damages.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Berniard Law Firm
JUSTIA Law Firm Blog Design