Negligence

December 2, 2013

Court Throws Out Lafayette Parish Case As Plaintiff Fails To Deliver Service of Process Before Deadline

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

November 30, 2013

Appeals Court Upholds Summary Judgment Against Manufacturer in Evangeline Parish Products Liability Case

by Berniard Law Firm

Companies manufacturing items that are inherently dangerous in the course of its normal use have certain legal obligations under products liability law. This case illustrates the necessary components of a successful products liability claim in Louisiana.

The plaintiff was working on a backhoe to clean out a drainage culvert when the clamps holding the vehicle’s hydraulic lines broke free and caused the lines to spew out hydraulic fluid. While attempting to reconnect the clamps, the plaintiff fell off the vehicle and was injured. He brought suit against the backhoe’s manufacturer and claimed that the company knew of the existence of an alternative design of the clamps that would better protect the hydraulic lines from leaking.

The trial court denied two separate motions for summary judgment by the defendant finding there were issues of material fact that precluded the granting of a motion for summary judgment. Subsequently, the plaintiff filed his own motion for summary judgment against the manufacturer under the Louisiana Products Liability Act (LPLA) which the court granted. The manufacturer appealed the trial court’s decision, and this appeal followed.

November 28, 2013

Appeals Court Upholds Jones Act Claim for Seaman Injured Off Gulf Coast

by Berniard Law Firm

The Jones Act is a law that provides seamen the chance to bring personal injury suits against the owners and operators of vessels they are working on in cases where the owner or operator was negligent or in some other way at fault for the injury. One of the types of damage allowable under the Jones Act is that of maintenance and cure. In maritime law, maintenance is the employee’s daily living expenses and cure is the employee’s medical bills. If an employer has to pay maintenance and cure, they will only have to pay such costs until the seaman is either fit for duty, or at a point where added medical treatment will not improve his condition. This case goes into further detail about what is necessary for a plaintiff to receive an award for maintenance and cure in a Jones Act case, and the relationship between maintenance and cure and worker’s compensation in Louisiana.

In this case, the plaintiff was performing sandblasting and plating work on an offshore rig. While performing this work, the plaintiff slept and ate aboard the M/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform on several occasions. After the initial work on the rig was done, the plaintiff was brought back to the vessel to perform sandblasting work on the vessel itself. During this period of work, the plaintiff sustained injuries while exiting the ship’s wheelhouse. The plaintiff soon began receiving payments from the Louisiana Worker’s Compensation Commission who was the employer’s insurer.

Subsequently the plaintiff filed suit against both of the owners and the operator of the vessel under the Jones Act. The plaintiff made three basic claims: 1) the owners and operator of the vessel were negligent in maintaining the safety of the vessel, 2) the vessel was unseaworthy, and 3) the owners and operators owed him costs for maintenance and cure. During the jury trial, the negligence and unseaworthiness claims were dismissed, and the remaining claim of maintenance and cure was the only claim left. The jury found in the plaintiff’s favor and awarded him awards of maintenance and cure. The defendants appealed the jury’s award.

November 26, 2013

Parish Judge Affirms Denial of Class Certification in Oil Spill Suit

by Berniard Law Firm

A class action suit occurs when a group of people bring a case together as representatives of an entire class of people who are similarly situated. In order to bring a class action in Louisiana, a judge must certify the class. This means that the class of plaintiffs meets the requirements for their class action to go forward. One of the requirements a class must meet to be certified is that it must have what is known as numerosity. In Louisiana numerosity is defined as meaning that the class is too large for the individual plaintiffs to pursue their claims separately or it is too large for the individual plaintiffs to be joined to the case in a practical manner. The following case illustrates what happens when questions about numerosity arise in a class action.

On May 15, 2009 a vacuum truck owned and operated by Environmental Services, Inc. was driving on Louisiana Highway 27 between Singer and DeQuincy when a valve broke and 300-500 gallons of motor oil leaked out onto the highway. The leak was discovered when the truck arrived in DeQuincy, and the impacted portion of the highway was closed within approximately 15 minutes of the truck’s arrival.

The plaintiffs seeking to certify this class action brought suit alleging that they suffered physical injury due to inhaling the fumes from the spilled motor oil and also alleged that they suffered damage to their vehicles and livestock in their vehicles from driving over the spilled oil. The plaintiffs sought to certify a class that included everyone who drove over the spilled oil before it was cleaned up.

November 22, 2013

Injured Ouachita Patient Fails to Meet Burden of Proof in Medical Malpractice Action

by Berniard Law Firm

When treatment provided by a health care professional falls below the accepted standard of practice in the medical community and causes injury or death to a patient, it is said that medical negligence or medical malpractice has occurred. To establish a claim for medical malpractice, a plaintiff must prove: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. These three elements must be proven by a preponderance of the evidence, which is the requirement that more than fifty percent of the evidence be in the plaintiff’s favor.

Nearly a month after surgery, it was discovered that John Roberts had been suffering from a staph infection after having a vasectomy performed by, urologist, Dr. Don Marx. On November 17, 2010, Mr. Roberts filed a lawsuit against Dr. Marx seeking damages for allegedly failing to provide appropriate medical care and treatment and diagnosis of the surgery’s complications. In addition to those allegations, Mr. Roberts’ complains that Dr. Marx failed to inform him that just days before performing Mr. Roberts’ vasectomy procedure, the doctor himself had undergone eye surgery after losing part of his vision in his right eye.

After the filing of the initial complaint, Dr. Marx moved for judgement as a matter of law and argued that Mr. Roberts would be unable to adequately prove his case at trial due to the lack of expert testimony to establish a breach of duty by the Dr. Marx. Accordingly, the trial court agreed with Dr. Marx determined that no genuine issue of material fact existed and granted summary judgment against Mr. Roberts.

November 21, 2013

New Orleans Land Developer Wins and Loses On Appeal

by Berniard Law Firm

A degree of legal closure has settled following a failed New Orleans housing project and years of litigation.

The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling in a dispute between the developer, Levy Gardens Partners, and its title insurance company, Commonwealth Land Title Insurance Company. The U.S. District Court for the Eastern District of Louisiana ordered Commonwealth to pay Levy Gardens $605,000 under their title insurance policy with Commonwealth. Levy Gardens sought a greater recovery and filed an appeal. Commonwealth sought to have the judgment nullified, claiming Levy Gardens was not entitled to any money under the title insurance policy.

Commonwealth agreed to cover a loss in value of the property’s title. The insurance policy contained a zoning endorsement which committed Commonwealth to insure against the risk that the land was misclassified as a multi-family housing zone. An insurance endorsement is an amendment to a policy that either adds or limits coverage. This endorsement expanded coverage to account for zoning errors. The policy in this case also required Levy Gardens to comply with any conditions, restrictions, or requirements in the zoning ordinances. The policy limit was more than $18 million.

November 18, 2013

Understanding Premises Liability in Louisiana Injury Cases

by Berniard Law Firm

Over the years, major advances in the field of transportation have made it relatively easy for people to move about the country. Many people find themselves in indefinite living situations, changing jobs, going to college or maybe just moving to a new area. In these types of circumstances, ownership may not be all that intriguing or feasible. Luckily, on the other end of the spectrum, there are usually handfuls of owners looking to rent or lease out their property. This perfect alignment of supply and demand leads to frequent property agreements. Although one hopes that everything runs smoothly throughout the occupation, inevitably sometimes accidents or problems may occur.

One specific type of problem that can be faced deals with the question of who is responsible for injuries or damages that result from a defect in the premises in which someone is not the owner. It is also important to note that agreements involving homeownership are not the only circumstances in which these particular problems may arise. Alternatively, one may find themselves injured somewhere they are visiting or momentarily staying at such as a hotel, museum, or baseball game.

In the state of Louisiana, in order to recover under the theory of premises liability, the plaintiff has the burden of proof. The plaintiff would likely be the one who does not own the premises and has been injured in some way. The plaintiff’s burden under Louisiana law consists of proving four things: 1) that the injuries were caused by a defect in the defendant’s premises that created an unreasonable risk of harm to the plaintiff; 2) that the defendant knew or should have known of the defect; 3) that the damage could have been prevented by the use of reasonable care; and, 4) that the defendant failed to exercise such reasonable care.

November 17, 2013

Public Entities Afforded Special Treatment by the Law in Injury Cases

by Berniard Law Firm

Public entities, such as the food bank in the City of Kenner, get special treatment when it comes to personal injuries. A plaintiff must prove that a hazard was not open and obvious in order to collect damages for their injuries. The thing must also pose an unreasonable risk of harm. However, if there is an unreasonably dangerous condition, the owner of the premises is supposed to either correct the danger or post some kind of warning for people passing by or using the premises.

Louisiana courts use a four-part test to determine whether a risk is unreasonable. First, the court will consider the utility of the thing, or its overall usefulness. Then, the court considers the likelihood and degree of the harm. Part of that determination considers the openness and obviousness of the condition. That is, they will attempt to consider how likely it is that someone will not notice the condition, and if they did not notice the condition, how badly they will be injured. Third, the court considers the cost of preventing the harm, or how much it would cost to fix the condition. Finally, the court will address how dangerous the plaintiff’s actions were in the first place. For example, if Plaintiff trips on a crack in the sidewalk, but he was running with scissors on public property, then the court will take that into consideration when determining if the crack in the sidewalk is related to his stab wound.

If Plaintiff satisfies all of these prongs, then the public entity will likely be to blame for the plaintiff’s injuries. The public entity faces strict liability if Plaintiff passes all four prongs. Strict liability is a very difficult standard for the public entity to face because there are no degrees of fault. It is either the city’s (or other pubic entity’s fault) or it is not. If Plaintiff meets all four prongs, fault has pretty much already been determined.

November 15, 2013

Liability of Establishment for Attack Outside Examined in Louisiana Case

by Berniard Law Firm

There is no general duty for a business to protect customers from third party attackers. If someone attacks you outside of a store, for example, the store is usually not responsible for the injuries or damages that occur because of that attack. The Third Circuit Court of Appeal for the State of Louisiana explained this concept in a case that originated in Alexandria City Court.

In June 2009, a woman and her mother were attending a bingo fundraising event for the local school football team. They arrived a little late and were attacked outside of the building where the bingo was being held. The assailant took the women’s purses and attempted to get away in the women’s car. The car headed toward a group of pedestrians at high speed in its getaway attempt.

Fortunately, the security guard rushed outside when he heard what was going on. He shot at the wheels of the vehicle, forcing it to stop before it reached the group of pedestrians. He arrested the attacker and sent him to jail. One of the women, however, injured her leg when the attacker struck it with the car as he was trying to escape.

November 14, 2013

Louisiana Court Says Widow of Paper Mill Employee in Mansfield Unable to Recover Damages

by Berniard Law Firm

The appellate court has affirmed a summary judgment dismissing a widow’s case against Stebbins Engineering and Manufacturing Company. She filed suit after her husband died while he was working at International Paper Company in Mansfield, Louisiana.

An employee died when, while attempting to repair a valve on the platform surrounding a white water tank/tile chest, he fell into the tank. Pulp debris around the opening cover may have been dislodged due to overflow before his fall. Thus, the widow brought suit against the manager of the Mansfield paper mill, International Paper, and Stebbins, which designs and constructs the tanks. Over 20 years ago, it manufactured the tank that the deceased fell into, and Stebbins also inspects tile chests at some of its locations, though not at the Mansfield mill.

Whether the widow had a case or not turned on the legal duties of Stebbins. The widow argued that inspections at other plants provided notice to Stebbins that some of the tile chests were over-pressurized and overflowing, which caused the dislodging of the access opening covers, thereby endangering International Paper employees working around the tanks. She argued this created an obligation for Stebbins to inform International Paper employees about the safety issue.