Negligence

August 14, 2016

Jury Instructions held Proper in New Orleans Car Accident Involving Fatality

new-orleans-streetcar-1230694-1024x768 Car accidents can be an alarming ordeal. Especially, where there has been a fatality involved. Generally, when a vehicle has been physically involved in an accident, the driver can expect to have some liability. However, liability can also be involved where a driver requires a passenger to exit a vehicle, and the passenger is subsequently struck and killed by an unknown driver, hours later.

This horrific circumstance was an all too real reality for John Cefalu, when the trial court found Mr, Cefalu and his insurer USAA Casualty Insurance Company, (USAA), partially liable for the death of Piero Larrea. Mr. Cefalu was driving Mr. Larrera and some other friends back from a night of celebrating Mr. Cefalu’s birthday in New Orleans. Mr. Larrera allegedly became belligerent and Mr. Cefalu eventually pulled the car over on the side of the interstate and asked Mr. Larrera to exit the vehicle. Mr. Larrera was eventually hit and killed by an unknown phantom driver.

A lawsuit and subsequent trial followed that series of events. After three days of testimony a jury verdict was returned. The trial court accepted the jury’s verdict awarding damages to the plaintiff, the father of decedent, and the jury’s assignment of fault. The assignment of fault was as follows: Mr. Larrea, 54% at fault for his own death, Mr. Cefalu 28% at fault, and the hit and run driver 18% at fault. Mr. Cefalu and USAA appealed the trial court’s judgment to the Fourth Circuit Court of Appeal, arguing that improper jury instructions resulted in the adverse verdict. Mr. Larrea’s father answered the appeal seeking a modification or reversal of the judgment with respect to the allocation of fault to the unknown driver.

August 11, 2016

St. Tammany Parish Property Owner Gets His Day in Court on His Trespass Claim Against Renaissance Media

by Berniard Law Firm

electric-tower-on-corn-field-1373345-1024x768 In 1997, Brandon Hirstius purchased a tract of land in St Tammany Parish. Nearly 14 years later, in 2011, Mr. Hirstius complained of an unauthorized utility pole on his property belonging to BellSouth Telecommunications, Inc. and filed a trespass lawsuit against the telecommunications company. In the midst of the June 2012 trial, Mr. Hirstius discovered the Renaissance Media, LLC, owned aerial wires attached to the utility pole in question.

In May 2013, Mr. Hirstius filed a trespass lawsuit against Renaissance seeking damages and a mandatory injunction requiring Renaissance to remove all its equipment from his property. In response, Renaissance filed a single pleading arguing that there was a peremptory exception of no right of action, meaning that Renaissance believed that Mr. Hirstius did not have a legal right of action, and, alternatively, Renaissance also argued that Mr. Hirstius’ claims were prescribed, meaning that he did not file the trespass claim within a year of discovering Renaissance’s equipment on his property and therefore could not do so now. See La. C.C.P. arts. 3492 & 3493.

The trial court concluded that Mr. Hirstius’ claims were prescribed and granted Renaissance’s motion for summary judgment dismissing the lawsuit against Renaissance. The court determined that Mr. Hirstius knew or should have known about the existence of the equipment on his property when he filed the lawsuit against BellSouth in 2011, and therefore, his filing of the lawsuit against Renaissance in 2013 was more than a year after such knowledge and he was therefore barred from seeking damages. Mr. Hirstius argued that his claims were not prescribed because the trespass by Renaissance was continuous, and therefore the one year clock had not started. The court rejected this argument. The court also denied Renaissance’s exception of no right of action on the basis of mootness.

July 31, 2016

Playground Injury at Jefferson Parish Baptist Church Aftercare Program Leads to Lawsuit

by Berniard Law Firm

fireman-s-playground-1496789-1024x768 Playgrounds bring great joy to young children. Countless hours are spent sliding down slides, swinging on swings and traversing monkey bars throughout the state of Louisiana. While it might come as news to some, playground equipment has certain set standards for what age range is appropriate to play on the equipment. In a recent case involving a Baptist Church Aftercare program in Jefferson Parish these standards were discussed when unfortunately a young girl broke her arm while playing on their playground.

In September 2010, a 19-month old girl fell and broke her arm playing on a playset while in an aftercare program at Riverside Baptist Church. The playset was only meant for children 5 years old or older. The parents of that child felt that Riverside failed in providing age appropriate equipment and therefore sued Riverside for damages in a negligence claim.

Personal injury can arise in many different scenarios, ranging from automobile accidents to medical malpractice cases. A common occurrence in these claims include the theory of negligence. The legal foundation for a negligence (failure to use reasonable care) theory in Louisiana involves five elements: (1) the defendant (the party being sued) had a duty to exercise reasonable standard of care; (2) the defendant failed to exercise this duty; (3) because the defendant’s lack of exercising this duty properly caused the injury; (4) the defendant’s ‘substandard’ care was within the scope of liability (i.e. even if the cause, were they legally liable for the cause); (5) did actual damages (injury or economic loss) occur. La. C.C. art. 2315.

July 28, 2016

Ochsner Clinic Foundation Louisiana Medical Malpractice Lawsuit Exhibits the Need for Effective Expert Testimony

by Berniard Law Firm

medical-1240480-718x1024 Medical malpractice lawsuits are known to be some of the most complicated, technical cases for injured parties. The average person does not have enough technical knowledge to infer negligence from a medical act or result. Because of this, many plaintiffs have to rely on expert testimony to explain nuanced details of the case and, ultimately, prove their case.

In Louisiana, for a plaintiff to recover damages in a medical malpractice lawsuit, they must prove that (1) there was a standard of care required for the practitioner, (2) the practitioner breached the standard of care, and (3) there was a causal connection between the breach and in the injury. Problems arise for injured parties when their expert testimony is unable to establish these elements and they are consequently subject to summary judgment; this is what happened to the Gonzaleses in their case against the Ochsner Clinic Foundation.

On November 7, 2006, Steven Gonzales saw his doctor for his diabetes at the Ochsner Clinic in Jefferson Parish Louisiana. In addition to the regular diabetes consultation, Mr. Gonzales brought a small bump on his elbow to the doctor’s attention and she diagnosed it as a cyst. The same events occurred again at his December 8, 2006 appointment with the doctor. After growing to the size of a quarter and interfering with his ability to use his arm, Mr. Gonzales requested that his doctor remove it; this occurred on 28 December 2006. After the growth was sent to a lab, Mr. Gonzales was informed that it was a stage II NO tumor of Merkel cell carcinoma, meaning that cancer was localized and had not spread to other areas of his body yet. Mr. Gonzales later had surgery to remove the tissue surrounding the tumor and radiation.

July 27, 2016

Speculation Not Enough to Find Electrical Shock from Taser as the Cause-In-Fact for a Subsequent Heart Attack In Shreveport Lawsuit

by Berniard Law Firm

electric-shock-hazard-1310056-1024x683 On the afternoon of April 13, 2011, Officer J.M. Bassett of the Shreveport Police Department heard loud music coming from a motorcycle parked at 251 E. 72nd in Shreveport Louisiana. When Officer Bassett attempted to make contact with the man, Jessie Scott, Scott became hostile. As the situation escalated, Officer Bassett employed his Taser stun gun and handcuffed Mr. Scott, placing him into custody and transporting Mr. Scott to the police station. At the station, Mr. Scott complained of chest pain and Mr. Scott was taken to the Louisiana State University Health Sciences Center, where it was determined that Mr. Scott was having a heart attack.

Mr. Scott and his wife later filed a lawsuit against the City of Shreveport for the tasing and subsequent heart attack which they alleged was directly caused by the tasing event. After receiving the lawsuit the City of Shreveport filed a motion for summary judgment in which they argued the Scotts failed to produce any medical evidence showing a causal link between Mr. Scott being tased and his heart attack later that day. The district court agreed with the City of Shreveport and dismissed the Scott’s case. They then appealed that ruling to the Second Circuit Appellate Court of Louisiana.

The Appellate Court agreed with the District Court of Caddo that summary judgment in favor of the City dismissing the allegations brought by the Scotts was correct. Summary judgment is proper when there is no genuine issue of material fact for all or part of the relief sought by a litigant. See Samaha v. Rau, 2007-1726 (La. 02/26/08), 977 So. 2d 880. Here, the Scotts are required to provide proof that there is a causal link between the tasing and Mr. Scott’s heart attack, but the Scotts failed to produce such evidence.

July 23, 2016

5 Things You Need to Know About Prilosec and Nexium Lawsuit Claims

by Berniard Law Firm

Prilosec and Nexium Lawsuit Claims
As medications known as PPIs become more and more common and readily available on the open market, the number of medication related injuries, complications and side effects also increase. Nexium and Prilosec have been known to cause serious medical conditions such as heart attack, kidney failure, and bone fractures, and prolonged use can increase the risk for these injuries dramatically. Currently, the number of law suits against the manufacturer of Prilosec and Nexium, AstraZeneca, continues to rise each day as more and more individuals are negatively affected by the drugs the company produces. Here are five things you need to know about these lawsuits against AstraZeneca and Prilosec/Nexium claims.

First, it is important to know that there are many different claims that an individual could have as a result of the use of Nexium or Prilosec. The claims against AstraZeneca have ranged from production of dangerous or defective medications, to insufficient labels warning of the dangers of the drugs, to even illegal marketing strategies which include hiding side effects and dangers from the public. If a loved one or family friend has died after complications arising from the use of Prilosec or Nexium, then a wrongful death claim could also be brought against the company.

Second, as Nexium is available over the counter and without a prescription now, the number of users, and therefore lawsuits, will continue to rise. This also means that a greater number of side effects and a greater variety of complications will also start to emerge. Thus, it is important to seek legal and medical advice if you are experiencing any sort of side effects from either Prilosec or Nexium, and not just the hallmark issues of kidney failure, heart attack and bone fractures. As more studies are being done, more and more side effects are being discovered and attributed to the medications. Be sure to consult a physician as well as a lawyer when preparing to file a lawsuit.

July 13, 2016

Second Circuit Affirms Economic Award after Water Supply Contaminated by Levee District

by Berniard Law Firm

Arguably the most important thing for human health besides air is available and clean water. When people behave carelessly, others can be harmed. A mistake with something as valuable as the water supply can cause any number of injuries to those who rely upon it. Negligence occurs in law where a person or company causes some sort of harm to another by failing to carry out some duty that person or company owes to the public. Louisiana is a comparative fault state, meaning that when multiple parties are found by a court to be responsible for some injury, the court will divide the total amount to be paid by the parties in proportion to how much each party’s actions make that party at fault for the incident. None of those held responsible can escape paying its share just because someone else is more to blame. The court will compare the actions of each person or company to determine who is more to blame when some harm occurs.

The Louisiana Second Circuit Court of Appeals ruled on a recent and complex case concerning multiple parties involved in such an accident. In 2006, the Walnut Bayou Water Association was repairing a water supply system that provided water to rural customers. These repairs involved temporarily emptying pipes. Nearby and unknown to Walnut Bayou, employees of the state Fifth Levee District were drawing water from one of these lines to dilute acid used to control weeds. The combination of this pressure on the water system caused the herbicides to be released directly into the water supply. Neither organization had installed devices that would have prevented such a flow into the water lines. Five days later, the poisoned water supply became evident to the several hundred customers of Walnut Bayou. In response to the contaminated water, the water supply was shut off in the area for eight days. Many of those in homes affected by the contamination and lack of water supply combined to sue both organizations as well as their insurers for the contamination and the failure to supply the usable water they were paying for.

Several years later, it was found that not all of the people on the water supply received the contaminated water. Those who had been proven to have gotten contaminated water were involved in a settlement, leaving only those who had been “upstream” of the released contaminants in the lawsuit. These affected customers brought claims for property damage caused by the lack of water, additional costs they suffered in obtaining water from other sources during the shortage and afterward, and for emotional trauma caused by the fear of knowing their water might have been poisoned. Many of these people refused to use the tap water to drink or cook for fear it might still carry traces of the toxic substances. The trial court found that these people would only be able to receive money for the economic losses they suffered. In order to determine how much each person would receive if the court found the organizations responsible, the court chose five of those plaintiffs at random to try their cases. At the end, the court determined that $600 should be awarded to each of the affected people remaining in the lawsuit, and that the Levee district was 75 percent to blame for what had happened, and so would pay most of the costs.

January 16, 2014

Prescription an Integral Element of Lawsuits After Wrongful Death

by Berniard Law Firm

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

January 12, 2014

Personal Jurisdiction Reviewed in Case With International Implications

by Berniard Law Firm

The U.S. Court of Appeals for the Fifth Circuit affirmed a judge’s dismissal of the People’s Republic of China and a Chinese company, Xiamen, from litigation in the U.S. District Court for the Eastern District of Louisiana. The appeals court agreed with the trial court that the federal judiciary lacked personal jurisdiction and subject matter jurisdiction over the Chinese company and the PRC, respectively. The result was that the district court could not enforce an arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.

The underlying issue is a contract dispute between Covington Marine Corporation and Xiamen Shipbuilding. Pursuant to their contract’s arbitration clause, the dispute went to arbitration under the rules of the London Maritime Arbitration Association. The tribunal found neither side liable, but issued a separate award requiring Covington to pay 40% of the costs and Xiamen 60%. Xiamen then filed a petition in a Chinese court to have the liability award recognized and enforced. Covington did the same with the costs award.

Meanwhile, Covington appealed to the English High Court. The High Court found Xiamen liable, ordered Xiamen to pay 100% of the costs to Covington, and sent back the case to the tribunal for modification of the award. The arbitral tribunal changed their ruling and Covington petitioned the Chinese court to recognize the new awards.

January 9, 2014

Rear-End Collision Case Examines Liability, Statutes in Louisiana

by Berniard Law Firm

A case arising out of a St. Martin Parish accident has shed light on the responsibility placed on drivers following behind another vehicle. According to Journet v. Mouton out of the Court of Appeal for the Third Circuit, a driver following another vehicle must exercise great care. The case arose out of an accident where a man and his family swerved to miss a slowing sheriff’s deputy, crossed the center line, and slammed into a ditch on the other side of the road. The driver of the vehicle was severely injured and was left quadriplegic.

Reports indicate the deputy was responding to an emergency call but had missed the driveway and was slowing to turn around in another drive. The driver of the following vehicle, who was driving without a license, knew the officer knew him and knew he did not have a license. Therefore, the following driver deliberately chose not to pass the deputy and claimed there were no brake lights and no turn signal used by the deputy. However, the plaintiff’s wife contradicted this testimony, stating that she did see brake lights and a turn signal. The defendants filed for summary judgment, which was granted by the trial court and affirmed by the Court of Appeal.

To reach its decision, the court looked to relevant Louisiana statutes. Most pertinent amongst these is La.R.S. 32:81(A), which states a driver shall not follow another vehicle more closely than is reasonable and shall have regard for the speed of the other vehicle. The court also looked to a Louisiana Supreme Court interpretation of the matter, which held that it is the duty of the following driver to exercise a great deal of care and to keep a safe distance behind the lead car.