Negligence

September 23, 2012

St. Martin Parish Police Tasing Leads to Wrongful Death Suit

On July 4, 2008, Othello Pierre attended a party at his uncle’s house in St. Martin Parish. Pierre’s uncle called 911 when Pierre got into a violent argument with a cousin. Two deputies with the St. Martin Parish Sheriff’s Department responded. A third deputy and distant relative of Pierre was also at the party; she informed the two deputies who responded to the 911 call that she suspected there may be warrant out for Pierre’s arrest. The deputies ran Pierre’s name and confirmed that he had an outstanding felony arrest warrant for burglary. When one of the deputies attempted to place Pierre under arrest, he broke away and fled the scene. The two responding deputies pursued Pierre on foot and soon found him hiding behind an old camper shell. Though ordered not to move, Pierre again attempted to run away, at which point one of the deputies fired his taser. The taser barbs hit Pierre in the arm and the head, shocking him with a single five-second cycle. An ambulance took Pierre to the Lafayette General Medical Center where he died approximately three hours later. The autopsy revealed that Pierre’s death was the result of “multidrug intoxication” from substances such as methamphetamine, THC, cocaine, alcohol, caffeine, and nicotine.

Narra Batiste and other members of Pierre’s family filed a civil action against the St. Martin Parish Sheriff and the deputies for the wrongful death of Pierre, alleging, among other things, that the deputies’ use of the taser was an unconstitutional use of deadly or excessive force. The district court heard motions for summary judgment on several issues, including the deputies’ motion to dismiss the claim of excessive force. The court denied the deputies’ motion, and appeal was taken in the U.S. Court of Appeals for the Fifth Circuit.

The Plaintiffs relied on two paths to argue that Pierre’s tasering amounted to an unconstitutional use of deadly force. First, the Plaintiffs cited a Supreme Court case that held it was unlawful to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to a police officer. Because that case concerned the use of a gun and not a taser, however, the court rejected its applicability. The court noted that no Fifth Circuit cases equated the use of a taser to the discharging of a firearm, and it declined to be the first. Second, the Plaintiffs argued that the deputy’s use of the taser while running violated the Sheriff Department’s policy and was contrary to the taser manufacturer’s guidelines for safe use. Yet, in the court’s view, the Plaintiffs failed to demonstrate that the use of the taser in the manner they described created an unreasonable risk of death. The court pointed to a dispute over whether Pierre was actually running when the taser was deployed, and concluded that “Plaintiffs’ assertions that the use of a taser on a fleeing suspect amounted to deadly force [were] unfounded.”

September 19, 2012

How Louisiana Determines Damages for Personal Injury

by Berniard Law Firm

When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant’s actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim’s injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

September 17, 2012

Wife’s Interests Not Represented by Attorney in Pre-Divorce Collusion

by Berniard Law Firm

Officers of the Court are expected to follow a specific level of professionalism and truthfulness that trumps any personal feelings they have on a case. One unfortunate case highlighted today involves the dissolution of a 22-year marriage and the unfortunate deceitful behavior of the husband and his attorney. Unbeknownst to the wife, the husband filed a petition for divorce on August 9, 2006. On that same day, the husband convinced his wife to meet at his attorney’s office to discuss a settlement of the community property. The wife was under the impression that the attorney was a neutral party, helping the couple come to a fair division of their property. However, things were not as they appeared.

The husband and wife signed an agreement partitioning their community property at the meeting along with a quitclaim deed for their real estate. A few days later, the couple returned to the attorney’s office and re-executed the documents in the presence of two witnesses for formality purposes.

When the wife became aware of the scheming on the part of her husband and the attorney, she immediately filed a suit in the trial court to rescind the agreement based on error, fraud, duress and lesion. The trial court rendered a judgment in favor of the husband and the wife appealed, bringing us to the case-at-hand.

September 14, 2012

Wrongful Prosecution Case Highlights Appeals Process

by Berniard Law Firm

In 2005, a New Orleans detective investigated a case regarding a robbery and shooting at a local meat market. An armed assailant was seen fleeing the scene of an attempted murder. After investigation and contact with the Federal Bureau of Investigation, a man was arrested who was known simply as “Mohammad.” This man was held for two years before the charges against him were dropped. As soon as he was released, the man filed charges against the detective and the City of New Orleans for violation to the right to due process and malicious prosecution for the attempted first degree murder that had taken place in 2005.

Mohammad alleged that his due process rights were not being respected because he believed that the detective used false evidence to hold him for trial. The right to due process comes from the Fifth and Fourteenth Amendments to the United States Constitution. Due process involves the rights to a fair and speedy trial as well as the right to be notified of the charges against you and the right to be heard in a court of law.1 Presumably Mohammad’s claims were based on the assumption that if the detective was attempting to convict him on false witness testimonies then the trial could not be fair by definition.

The United States District Court for the Eastern District of Louisiana heard the case and many witnesses were presented on either side. Witnesses who saw the attempted murder that day described someone who fit Mohammad’s description and one witness even identified him directly. Evidence was also submitted regarding the detective’s investigation of the case, including the fact that he interviewed a number of witnesses and worked with the FBI in this case. Mohammad presented a single witness who described a man who did not fit Mohammad’s description and another individual who stated that Mohammad was with him the entire day. Mohammad claimed that the statements and witnesses presented by defendants were created by the detective in order to get a conviction for this case. Nonetheless, the jury at the District Court level found for the City of New Orleans and the detective.

September 12, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages (Part 2)

by Berniard Law Firm

This post is a follow up regarding the worker’s compensation claims in a maritime case previously discussed in “Maritime Injury: The Jones Act.” The Fifth Circuit Court of Appeals also addressed the complicated worker’s compensation aspects of this case in addition to the rejection of the use of The Jones Act in the injured party’s attempt to avoid an employer’s contributory negligence claim. In order to fully understand the worker’s compensation aspects of this case, it is important to consider some additional facts of the District Court’s decision.

As a reminder, a crane mechanic employed by a third party was injured on an oil rig due to the partial negligence of himself and the owners of the rig. He fell through an uncovered ladder from the top portion of the crane cab and was seriously injured when he landed on the deck below. After his injury, the employee was no longer able to work as a crane mechanic but remained an employee for his previous company.

While the injured man was unable to work as a crane mechanic, his employer gave him a clerical position and paid him significantly more than someone in a clerical position would earn. His employer continued to pay him the wage he earned as a crane mechanic and although he only worked approximately twenty hours a week, his employer paid him for fifty-five hours per week. The lower court determined that this dramatic increase in wages for the work done could be considered an advance of worker’s compensation benefits. They based this determination on the original intention of the employer. The Court of Appeals affirmed this decision by stating that the lower court had ample evidence to make this conclusion.

September 10, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages

by Berniard Law Firm

The Court of Appeals for the Fifth Circuit addressed an injury case that involved a crane mechanic who was injured on an offshore drilling rig. The man was injured when he fell through an uncovered ladder hole on the top portion of the crane cab which was about fourteen feet above the deck of the rig. As a result of his injuries, he is now unable to work as a crane mechanic, but he has returned to work in a clerical capacity for the company in which he was working for previously. The two parties in this case are the employee and the owner of the rig on which he was injured; however, this case is complicated because the employer is also involved in the worker’s compensation claims.

This case involved a cross appeal where both parties appealed some part of the lower court’s decision. There were a few issues that arose in this case that that Court of Appeals addressed. This case touches on the Jones Act and considers the concept of contributory negligence. This case is also based on the Longshore and Harbor Worker’s Compensation Act so it affects the employer and their insurance company as well. This post will present the basic facts of this case and discuss the Jones Act. A follow up post will address the worker’s compensation aspects of the court’s decision.1

The employee appealed based on the claim that that he did not contribute to his own injury by being careless. This concept is generally known as contributory negligence. He also argued that even if he was partially responsible, the Jones Act protected him from being punished for his contribution to the injury. The owner of the rig appealed based on the claim that they were also not partially negligent. The Fifth Circuit Court of Appeals considered all of these issues in turn and affirmed the lower court’s judgment. The court states that both parties were partially negligent in this case; the owner of the rig left open the cover through which the employee fell and the employee was not watching where he was going, thus contributing to his injury.

September 7, 2012

Trip and Fall at Metarie Carwash Leaves Plaintiff All Wet

by Berniard Law Firm

On September 9, 2008, George Alonzo visited the Safari Car Wash on Veterans Memorial Boulevard in Metarie. While exiting the restroom in the car wash’s waiting area, Alonzo fell and sustained injuries. In a lawsuit against the carwash, he alleged that he slipped in a puddle that had been caused by employees’ tracking in water from the carwash facilities.

Under Louisiana law, Alonzo shouldered the burden of proving three key elements: 1) the condition that existed on the car wash’s premises presented an unreasonable risk of harm and that the risk was reasonably foreseeable; 2) the car wash either created or had actual or constructive notice of the condition which caused the risk; and (3) the car wash failed to exercise reasonable care in remediating the condition. Constructive notice means that the condition existed for such a period of time that it should have been discovered if the car wash’s employees had exercised reasonable care.

Alonzo’s complaint was dismissed by the trial court on the car wash’s motion for summary judgment. Alonzo appealed to the Fifth Circuit Court of Appeal for the State of Louisiana, which affirmed the dismissal. Upon review, the court noted that Alonzo failed to prove that an unreasonably dangerous condition caused his fall. During his deposition, when asked what caused his fall, Alonzo responded, “I guess the floor was damp. I didn’t really see it, because I–you know, I wasn’t looking down when I walk.” He stated further that he assumed the floor was wet, but that he did not look on the floor after the fall to see what he would have slipped on, even though his pants, socks, and shoes were wet. Alonzo also contended that the waiting area’s concrete floor was hazardous because there were no carpets or non-slip mats, and the car wash employees were permitted to enter the waiting area in wet clothes and shoes. The court concluded that “Alonzo… was unable to identify the condition of the floor in defendant’s premises on the date of the fall,” and the circumstantial evidence he offered was insufficient to meet his burden of proof.

September 5, 2012

Security Breach Case Fleshes Out Requirements for Successful Suit

by Berniard Law Firm

It seems that in such a technologically dependent society, where digital information is everywhere, unauthorized access to computer databases (commonly referred to as “hacking”) is an all too common occurrence. However, as the recent Third Circuit decision in Reilly v. Ceridian Corp. illustrates, a company’s security breach that results in the exposure of hundreds of individuals’ personal information does not necessarily result in an automatic “harm” worthy of compensation.

In Reilly v. Ceridian Corp., Ceridian Corporation was a payroll processing firm. In order to process its customers’ payrolls, Ceridian collected personal information of its customers’ employees, which in some instances included an employee’s name, address, social security number, date of birth, and bank account information. One of Ceridian’s customers was the Brach Eichler law firm, where the plaintiffs, Kathy Reilly and Patricia Pluemacher, were both employed. On December 22, 2009, disaster struck when an unknown hacker infiltrated Ceridian’s records systems. While it is unknown whether the hacker read, copied, or understood the data he or she had access to, it was clear that the hacker potentially gained access to the personal and financial information of approximately 27,000 employees, including Reilly and Pluemacher. Ceridian contacted the potential victims to inform them of the situation, but for Reilly and Pluemacher, contact from Ceridian was simply not enough. Reilly and Pluemacher filed a claim in the United States District Court for the District of New Jersey on behalf of all of Ceridian’s potential victims. Reilly and Pluemacher claimed that the security breach made them susceptible to an increased risk of identity theft, and required their additional time and money to monitor their credit activity. The District Court, however, granted Ceridian’s motion to dismiss, stating that Reilly, Pluemacher, and the other potential victims’ claims did not have standing for failing to address a “case of controversy.” The Court of Appeals for the Third Circuit affirmed.

The Third Circuit agreed that the potential victims failed to establish adequate standing under Article III of the Constitution to bring their claim to federal court. Article III limits federal courts to only hear actual “cases or controversies” that might arise. Part of that requirement is a showing of “injury-in-fact,” or what the Supreme Court described in Danvers Motor Co. v. Ford Motor Co. as an invasion of a legally protected interest that is (1) concrete and particularized, and (2) actual or imminent, not conjectural or hypothetical. The Third Circuit felt that the potential victims’ allegations were too speculative. In order for the potential victims’ claim to adequately have standing, the court would have to assume that the hacker had actually read, copied or understood the personal information, had intended to commit future criminal acts by misusing the information, and had the capabilities of making unauthorized transactions with that information. Without these facts, no harm was suffered and, thus, no claim existed.

September 3, 2012

Malicious Prosecution Another Form of Injury Suffered by Public

by Berniard Law Firm

A sheriff candidate for Concordia Parish, James Whittington, sued his opponent, Sheriff Randy Maxwell, for malicious prosecution and violating both his Fourth Amendment and First Amendment rights.

During the sheriff election campaign, Whittington ran several ads in the local newspaper including several that described misconduct that had allegedly taken place in the Sheriff’s Office during Maxwell’s term. Specifically, Whittington claimed that the deputy sheriff had been arrested on charges of marijuana possession. He even published an arrest ticket for the deputy sheriff’s arrest for marijuana. These ads caused Maxwell much embarrassment over his management of the Sheriff’s Office.

Maxwell arrested Whittington on the report of his ex-girlfriend who claimed that Whittington had harassed her by making multiple phone calls to her and taking two rings off her hand, refusing to return them. The judge, Boothe, set Whittington’s bail at $175,000, a high amount considering Whittington’s prior record of a single misdemeanor. Since Whittington could not post bond, he spent fifty days in jail.

August 31, 2012

Damages a Complicated Concern in Louisiana Asbestos Case

by Berniard Law Firm

Damages are awarded in successful civil instances in order to put the injured party back into a position that they would have been in had the events in the case unfolded as planned or if the transaction had not taken place at all. For example, in a contracts case, if one party ordered and paid for widgets, and does not receive those widgets, then he should be able to get his money back or the court could force the other party to provide the widgets as promised. Sometimes, however, the position that you were in before the deal is not easy to quantify into a dollar amount. In cases where the injury is either physical or emotional, damages are very difficult to estimate.

In cases where the injury is either physical, emotional, or both, the court uses a variety of methods to attempt to determine the appropriate amount of damages. For example, if someone has been harmed physically and needs to go to the hospital, then part of the compensation will often include money to cover the hospital bills. If an individual has been troubled emotionally and needs to see a therapist, then the bills for that service will often be considered to figure damages. In addition, the court will often look at past cases to determine what type of monetary award that juries have given to the victim under similar circumstances. If the award that the jury gives is significantly smaller or larger than past awards then the court may intervene to adjust the damages granted.

A 2011 Delaware Supreme Court case illustrates this concept very well. In this case, a son and mother were exposed to asbestos while operating a car repair business for over forty years in Louisiana. They died after contracting mesothelioma; the mother died two years prior to her son’s death. Several issues came up in this case regarding the payment of damages. The lower court declared that two businesses were partially liable for the death of these individuals. Therefore, those businesses were ordered to pay $500,000 to the four remaining family members for the loss of their mother, $0 to the son for the loss of his mother, $80,000 to the mother’s estate for pain and suffering, and $1.6 million to the son’s estate for his pain and suffering. All of these funds were given to the four remaining family members.