Articles Posted in Negligence

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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pharmacy-1507606-1-1024x768Recently, the Louisiana Fifth Circuit Court of Appeals increased a trial court’s award of damages to a plaintiff in a negligence action against Walgreens. Negligence involves showing the court that one person (or company) failed to do their duty—and as a result, someone was hurt. In this case, Peggy Williams asked her son Derrick to pick up a medication for her from the Walgreens pharmacy in Gretna. Walgreens’ pharmacist handed Derrick another person’s medication, and Ms. Williams took the pills without noticing the mistake. As a result, she suffered several strokes and long-term loss of physical capacity. The jury found that Ms. Williams and her son were 40% at fault, and that Walgreens was 60% at fault for the harms Ms. Williams suffered.

Ms. Williams appealed the judgment on two grounds.

First, she argued that the trial judge made a mistake by entering a judgment different from the jury’s responses on the verdict form. The verdict form apportioned the fault to the parties in the following manner:

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lawyers-1491730-1024x768The last thing that you want to do after dealing with litigious matters is have to hire more lawyers.  However, if you believe your lawyer committed legal malpractice thats exactly what you will be forced to do.  Lawsuits containing claims of legal malpractice are taken very seriously by the courts presiding over them.  Very strict timelines dictate when you must file a lawsuit alleging legal malpractice and if your not careful your case could be dismissed before it gets started.  A recent case out of the Louisiana Fourth Circuit Court of Appeal discusses a lower courts ruling in a legal malpractice lawsuit in favor of Defendants, Romauldo Gonzalez, Sr., and the Law Offices of Romauldo Gonzalez, L.L.C. d/b/a Braden Gonzalez and Associates (collectively, “Mr. Gonzalez”) based on prescription arguments.

In July of 2013, Marco Tulio Miralda filed a legal malpractice lawsuit against Mr. Gonzalez. In his petition, Mr. Miralda alleged that he retained Mr. Gonzalez in early 2008 in regards to renegotiating a mortgage note held by Wells Fargo on his New Orleans home. Mr. Miralda was in default on his mortgage note and Wells Fargo had initiated foreclosure proceedings on the property. Mr. Miralda alleged that Wells Fargo was inclined to negotiate reinstatement of the loan.

Mr. Miralda was allegedly advised by Jose Chacon, a non-attorney employee of Mr. Gonzalez’s law firm, to deposit $30,000 into a trust account to serve as a down payment, for purposes of the renegotiation. Per the instructions, Mr. Miralda deposited $33,864.75 into the trust account.

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mailbox-1-1481771-1024x683In  order to file an insurance claim you first must have insurance coverage.  It’s important that you stay aware of the renewal dates for the continuation of coverage so that you do not end up losing out on critical insurance payments in times of crisis.  In certain situations it’s your insurance company or agent’s duty to notify you that your coverage has lapsed.  A recent case involving a homeowners insurance policy for a property located on Lafourche Street in New Orleans discusses the burden of proof necessary to justify a homeowner’s claims of improper notification of nonrenewal by his insurance agent.

In early 2000, after the roof of his property in New Orleans was damaged, Edward Collins filed a claim under his homeowner’s policy with State Farm Insurance Company. State Farm paid Mr. Collins for the damage per his homeowner’s policy for that claim. In 2004, Mr. Collins submitted a subsequent claim under his homeowner’s policy. State Farm performed an investigation and uncovered that Mr. Collins failed to repair his roof after his funds were disbursed for his 2000 claim. Upon this discovery, State Farm did not renew the homeowner’s policy when it expired in May of 2005.

Mr. Collins was sent a letter of nonrenewal on April 27, 2005. However, Mr. Collins asserts that he never received a notice of nonrenewal. In August of 2005, Mr. Collins filed a claim under the homeowner’s policy for damage to his property as a result of Hurricane Katrina. State Farm denied the claim, setting forth that there no longer was an existing policy for Mr. Collin’s property.

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