Articles Posted in Negligence

by

employee-entrance-1-1189151If  you have been injured in an automobile accident, you deserve to be properly compensated for your injuries.  Sometimes, unfortunately, the person who caused the injury may not be able to adequately compensate you.  This does not mean you are out of luck. If the person responsible for your injury caused it while working as an employee, the employer may be liable as well.  That is why is its extremely important to hire a good lawyer who will apprise you of all avenues of recovery under the law.  In a recent case, the Louisiana Second Circuit Court of Appeal discusses an employer’s liability for an employee’s accident.

In 2011, Guindolyn Hooper was involved in a four car accident in Shreveport, Louisiana. The crash was caused by a driver who was texting at the time of the accident.  The driver of the car that caused the accident, Wayne Austin, just left the site of his employment and was allegedly texting his boss about job-related strategy when he crashed into Mrs. Hopper from behind.  For this reason, Mrs. Hooper and her husband added Venator, Austin’s employer as a defendant, seeking to hold them vicariously responsible for Mrs. Hooper’s injuries.

Vernator sought to have the case dismissed and moved for summary judgment. Summary judgment seeks to have the case dismissed when there is no issue of material fact. Here, the Trial Court granted summary judgment in favor of Venator, finding that even if Austin was an employee of Venator, he was not in the course and scope of his employment when he caused the accident.  Mrs. Hooper appealed. The Court of Appeal reversed the Trial Court, finding that there were genuine issues of material fact as to whether Austin was a Venator employee and whether he was acting in the course and scope of his employment at the time of the accident.

Continue reading

by

ambulance-1442004In Louisiana, the law presumes a driver negligent when he or she leaves a travel lane and strikes another vehicle. This presumption stems from the legal obligation all motorists have to maintain control of their vehicle. In personal injury cases, this presumption overrides the normal burden of proof which lies on the plaintiff. In order to defeat the presumption of negligence, the defendant must show that he or she was not guilty of any negligence, however slight. A recent case of the Louisiana First Circuit Court of Appeal considered the presumption of negligence in automobile accident cases.

On August 3, 2009, a multi-vehicle accident occurred on interstate 10 in East Baton Rouge Parish near the Mississippi River Bridge. Loren Arey was driving an eighteen wheeler in the middle lane of the intersection. Traffic in the two lanes beside him started to slow down. Another unknown driver of a white vehicle switched into the middle lane directly in front of Mr. Arey. In order to avoid hitting him, Mr. Arey swerved right, hitting a pickup truck. It caused the pickup to hit the rear of Leandro Carias’ vehicle. The white vehicle shifted back into the left lane and continued driving.

Mr. Carias filed a lawsuit against Mr. Loren and several co-defendants, including his trainer, Mr. Rickie Williams, the driver of the pickup truck, and the drivers’ respective insurance companies. Mr. Arey, Mr. Williams, and C.R. England, Inc. the owner of the eighteen wheeler (collectively referred to as “the defendants”) filed motion for summary judgment seeking to have the claim dismissed before trial. The defendants’ motion for summary judgment argued that the accident was caused by the white “phantom vehicle,” and that there was no evidence as to any of the defendants’ liability. The Trial Court granted the motion for summary judgment, dismissing all claims against all Defendants. Mr. Carias appealed.

Continue reading

by

just-a-forklift-1439915If your employer is knowingly putting you in harm’s way and you suffer an injury, you may have an intentional tort claim against your employer. In Louisiana, remedies against an employer for on-the-job injuries are limited to cases of intentional acts, rather than negligence. In a recent case the Louisiana First Circuit Court of Appeal discussed what is required to succeed on a tort claim against an employer.

On July 24, 2012, Adrian Cador was injured while on the job at KPAQ Industries. Mr. Cador’s foot was run over with a forklift operated by another employee. Mr. Cador and the other employee were unaware that the backup alarm on the forklift was not working. According to Mr. Cador, KPAQ knew about the malfunction.

Mr. Cador filed a lawsuit in February of 2013 alleging that the company that rented the trucks were negligent because they had knowledge, or should have had knowledge, that the alarm was not functioning. In July of 2013, Mr. Cador amended his petition naming KPAQ, his employer, as another party to the lawsuit. In this amendment Mr. Cador alleged that KPAQ knowingly and intentionally subjected him to danger with knowledge that injury was substantially certain or at least a possibility. KPAQ responded by filing a peremptory exception of no cause of action, arguing that Mr. Cador’s claims were barred by the Louisiana Workers’ Compensation Act.

Continue reading

by

syringes-and-vial-1307461
If you are affected by what you believe is medical malpractice, a clock starts ticking the minute you discover or are put on reasonable notice of your injury. You only have a very limited amount of time to actually file a medical malpractice lawsuit, so it is extremely important to consult an attorney as early as possible in the process so that you do not miss your available window for a malpractice claim. These deadlines are strict and missing yours will leave you with very few options for how to move forward, so if you suspect any medical malpractice, you should visit an attorney right away.

In Louisiana, the law regarding medical malpractice states that you have one year to file a claim from the date of discovery of the alleged act, omission, or neglect associated with your injury.  See LA Rev Stat 9:5628. If you do not file within that year, your opponent can seek an exception of prescription, meaning that the court will deny your case because you waited too long to file.

In this case, Mr. Hume was suffering from many independent health problems when he entered a nursing home for care. Prior to the nursing home, his wife had been his primary caretaker. Mrs. Hume found Mr. Hume just one month after his admittance lying on the floor of the facility after having been denied the diabetic treatment that he needed. The nurse refused to give Mr. Hume his prescribed medication, on the mistaken belief that it was not the correct prescription. That same day, Mrs. Hume removed Mr. Hume from the nursing facility and after a visit to the emergency room, a serious unrelated medical issue caused Mr. Hume to be placed in home hospice care. After Mr. Hume’s death, Mrs. Hume and her children requested a medical review of the doctor and facility Mr. Hume had stayed in; the medical review panel found that the nursing home didn’t meet the necessary standard of care, because they failed to inform a physician of a change in Mr. Hume’s urinary output.

Continue reading

by

arriving-with-the-refraction-4-1573537-1024x768In  certain kinds of car accidents there is a rebuttable presumption of negligence afforded to a party involved. In a collision that happened in Lafayette Parish, The Louisiana Third Circuit Court of Appeals decided that the presumption of negligence remained intact and the other involved parties could not be assigned fault.

The case arises out of a three-car collision which happened in Lafayette, Louisiana, on March 16, 2012. For this decision, the plaintiff Linda Leblanc was appealing a summary judgment ordered in favor of the defendants, Abbie Norris and Louisiana Farm Bureau Casualty Insurance Company. The Three drivers involved where plaintiff Leblanc, defendant Norris, and Brody Bouzon. Leblanc stopped at a red light with Norris stopping behind her. Bouzon who was behind Norris failed to stopped and rear-ended Norris’ car pushing her into the rear of Leblanc’s vehicle. Bouzon was given a ticket for careless operation of his vehicle at the scene of the accident. Leblanc claims that she sustained physical pain and mental anguish from the accident stemming from Norris and Bouzon’s negligence and she filed her lawsuit against the defendants along with Bouzon and his insurer seeking medical damages and lost wages. Norris and her insurer Farm Bureau filed a motion for summary judgment on her liability based on several allegations coming down to Bouzon having the presumption of negligence. The District Court granted the motion for summary judgment and the Court of Appeals affirms.

To successfully motion for summary judgment the party asking for the motion must show that there is no genuine issue of material fact and that the party is entitled to the judgment as a matter of law. The motion is granted if facts and records of the case show these two things. With a summary judgment a court can decide certain issues of a case in advance of the trial to efficiently dispense with those matters.

Continue reading

by

parking-space-1441053-1-1-1024x768Not all slip and fall cases are successful as the burden of proof on the victim can be high in Louisiana.  In a recent opinion out of the Louisiana Fifth Circuit Court of Appeals the trial court’s decision to award $20,000 to Carolyn Bennette, who slipped and fell at the Brother’s convenience store and gas station in Avondale, Louisiana was reversed.  As discussed below, the appellate court stated that the defendants were correct in arguing that the trial court held the defendants to an improper burden of proof. In order to prove a slip and fall claim, a victim (here, the Plaintiff Ms. Bennette) has the burden to produce direct evidence supporting her claim, and the Appellate Court found that Ms. Bennette failed to prove three aspects of the claim.

On October 7, 2010, Ms. Bennette, after buying lottery tickets, walked through the parking lot towards her car and slipped on a piece of wood that was protruding from an expansion joint in the concrete at the Brother’s Avondale convenience store. The piece of wood lodged into her shoe causing her to fall and break her elbow, among other injuries. Ms. Bennette alleged that Brother’s was negligent in failing to maintain its property in a reasonably safe condition, failing to warn customers about the allegedly dangerous condition, and allowed an unsafe and dangerous condition to exist after proper notice and/or constructive notice of same. The jury at the trial, where Ms. Bennette was the only witness, rendered judgment in Ms. Bennette’s favor to the tune of $20,000.

A store owner is not liable for every accident that occurs on the premises. See Harrison v. Horseshoe Entertainment, 36 (La. App. 2 Cir. 8/14/02); 823 So.2d 1124. Slip and fall claims are governed, in Louisiana, by La. R.S. 9:2800.6, the statute explaining liability of merchants for “slip and fall” claims by customers on store premises.  Importantly, while Louisiana law requires merchants to exercise reasonable care to protect persons who enter the establishment, to keep the premises safe from unreasonable risks of harm, and to warn of known dangers, the merchant need not prove anything to win the case. It is up to the injured person who is bringing the suit to produce evidence in support of the claim. The victim must prove the elements of their case, specifically: 1) that the merchant gave a reasonable effort to keep the premises free of any hazardous condition which may reasonably give rise to damage, 2) that there was an unreasonable risk of harm that was reasonably foreseeable, 3) that the merchant either created or had actual or constructive notice of the condition prior to the accident, and 4) that the merchant failed to exercise reasonable care. Proving all of these elements can be challenging for slip and fall victims, as we saw in this case.

Continue reading

by

revolving-glass-door-1213987
We have all had that moment in a revolving door when the door seems to be moving just a bit too fast. You do your best to keep up but the back of the door knocks into your foot.  No harm, no foul when you get a little bump on your foot. But what if an entire glass pane fell off the door and pinned you into the other side of the door. I would expect you would be pretty upset and you would want to figure out who is responsible for your injuries.  Is it the hotel, the door manufacturer, the installer of the door? The following case out of New Orleans sheds some light on who might be responsible when a revolving door almost turned into a death trap for one unfortunate man.

In 2004 while working as a courier Huey Madison had deliveries to make at the Inter-Continental hotel in New Orleans, Louisiana. Huey alleged while exiting the revolving door of the Hotel the door panels collapsed and pinned him between the glass causing him injuries. Huey filed a lawsuit claiming damages resulting from the hotel’s failure to properly install, monitor, and repair the revolving door. Intercontinental answered Huey’s lawsuit, denying all claims while also asserting a third-party demand against Carolina Door, claiming Carolina Door had total control over the inspection and repairing of the door in question. Huey subsequently filed an amended petition with Carolina Door listed as a direct defendant.

Both the Intercontinental Hotel and Carolina Doors sought to escape liability by filing motions stating each were solely responsible for Huey’s injuries. These motions are called summary judgments and are standardly filed in cases such as this.  If the party who files a summary judgment motion can demonstrate that there are no facts in dispute and according to the law they are not responsible they can evade responsibility. In response to those motions, Huey filed a memo in opposition and attached the affidavit of an expert witness in the field of construction. Huey argued the expert affidavit provided facts in dispute that would defeat defendants’ motion for summary judgment. Carolina Door subsequently filed a motion to strike Huey’s expert affidavit, arguing the introduction of an expert witness was too late and violated court orders. At the hearing on the motions for summary judgment and motion to strike, the trial court held Huey failed to produce factual support concerning negligence by Carolina Door, and thus granted Carolina Door’s motion for summary judgment. The trial court also denied Carolina Door’s motion to strike without much explanation.

Continue reading

by

law-offices-1477311-1-1024x743When something goes wrong in a legal case, how long does a party have to make their claim? Louisiana has statutes concerning the time frame in which a party has to bring a claim against an attorney for malpractice and the courts will uphold the time limitation depending on the facts of the case.

In 2007, Ms. Coté, was living with her daughter in Shreveport. The circumstances leading to the original litigation were started when, Leon Bell, who was employed by City’s water department, was sent to a neighborhood to tell the certain residents about the water being shut off. He ended his shift and then hours later entered Ms. Coté’s residence and held her by force. Luckily Ms. Cote’s daughter escaped and alerted the police. Mr. Bell was arrested and charged with aggravated battery and second degree kidnapping; he pled guilty to certain charges and was given a sentence of many years in jail.

Ms. Cotè’s filed a lawsuit against the City of Shreveport (the City) the following year.  In that lawsuit she alleged great mental suffering due to the unlawful intrusion. Ms. Cotè alleged that city’s employee had actually been let into her home on a few instances prior because he requested the same as part of his job. On one visit she had would not let him in and notified the City at that time of the incident. The City could not locate any documents detailing Ms. Cote’s grievances. Ms. Cotè argued that the City should be held vicariously liable because the harm she incurred was a result of their employee performing his job duties. The City in return argued that the the criminal activities did not occur as part of their employees’ job duties, therefore they should not be held in concert with him for his negligent actions. Ms. Cotè’s attorneys advised her that the City’s motion on the vicarious liability issue was on solid ground, and she would have a tough time proving her case in court. Ms. Cotè was very hands on with her case, and when her attorneys provided her with an affidavit they intended to present in response to the City’s she indicated discouragement with their handling of her case.

Continue reading

by

law-series-3-1467437-1024x769When attempting to bring a lawsuit in court, timing is everything. If a potential claim is brought too late your day in court may never come. However, Louisiana courts of law are generous in extending the deadline to file a lawsuit in instances of fraud.  In the following case out of Jefferson Parish Louisiana, a Plaintiff learned that the deadline to file a legal malpractice lawsuit can be relaxed when fraud is employed to hide negligent representation.

Ms. Michelle Myer-Bennett was primarily a divorce attorney, but represented clients in related matters: division of property, custody, and other family law matters. Ms. Myer- Bennett was hired by Tracy Lomont to represent her in her divorce. Ms. Lomont wished to receive her home in Jefferson Parish as a result of the divorce. Ms. Myer- Bennett followed standard protocol to draft this documentation, but failed to record this information in the mortgage or property records.

Sometime later in 2010, Ms. Lomont attempted to refinance her house, but was denied. After reviewing her application, Ms. Lomont discovered that her application was denied due to a lien on her property. Ms. Lomont found out that her attorney had not completed the proper paperwork. According to Ms. Lomont, she contacted her former attorney, Ms. Myer-Bennett who made no mention of her mistake in filing. In contrast, according to Ms. Myer-Bennett, she confessed her malpractice to her client and informed her of all possible proceedings including suing her for malpractice.

Continue reading

by

tugboat-1239183-1024x683
Servicing drilling platforms is big business in the Gulf of Mexico.  To transport pipes and other supplies out to the oil platforms ships or large vessels are often used. Unfortunately not all vessels are in “shipshape” as a recent case out of the Eastern District of Louisiana shows.

On May 28, 2013, the RICKY B, a boat operated by D&B Boat Rentals (“D&B”), began taking on water in its engine room while servicing drilling platforms in the Gulf of Mexico. The following day, after several attempts to stop the flooding, the RICKY B contacted Crosby Tugs, L.L.C. (“Crosby”) for assistance. At this point, the RICKY B had lost power and its crew was abandoning ship. Crosby agreed to dispatch a tug to tow the RICKY B to shore. When the tug arrived several hours later, RICKY B was sitting low in the water. The tug, following the owner and operator of D&B’s instructions, attached a tow line and towed the vessel to shallower waters at speeds of no more than five knots without pumping the water in engine room. However, after about 13 minutes into the towing, the RICKY B completely submerged and sunk to a rest on the bed of the Gulf of Mexico.

D&B filed suit against Crosby to recover expenses incurred in the boat sinking, alleging that Crosby negligently towed the RICKY B without pumping the water first, and at too high speeds, causing the boat to sink. After conducting a bench trial, the district court ruled in favor of Crosby. The Court found that D&B presented insufficient evidence to establish that Crosby acted with either negligence or gross negligence. The district court held that the nature of the services provided by Crosby were salvage, not towing; and because the damage ultimately suffered by the D&B was indistinguishable from the purpose of the salvage operation (i.e., to prevent the sinking), a gross negligence standard applied in determining Crosby’s liability instead of ordinary negligence. The standard of ordinary negligence is conduct that deviates from the proverbial “reasonable person,” whereas grossly negligent conduct is that which has fallen so far below the ordinary standard of care that one can expect, to warrant the label of being “gross.” Moreover, in this case, the district court held that even if the court applied an ordinary negligence standard that D&B presented insufficient evidence to prove Crosby’s ordinary negligence. Furthermore, under the Pennsylvania Rule, D&B is required show that the statutory violations of the RICKY B were not the cause of the accident, which they did not. The Pennsylvania Rule creates a rebuttable presumption of causation against an entity involved in a maritime accident if that entity is in violation of a maritime rule or regulation intended to prevent that type of accident.  See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir. 1991).

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