Articles Posted in Negligence

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When an unexpected personal injury occurs, the injured party may find the situation requires legal action. An injured person deserves to know where the money to pay for medical expenses, lost wages, and incidental expenses stemming from an injury will come from, and in many cases a legal claim can serve as a means to provide that knowledge. What many people thinking about initiating a claim for personal injury overlook is that the standards of the court in allocating fault for an injury may dictate the amount of recovery possible for an injured claimant.

Fault allocation can alter the amount of a damage award an injured party receives. The Louisiana Second Circuit Court of Appeal re-allocated percentages of fault that had been awarded by the lower court in the case of Matlock v. City of Shreveport . Matlock, a teacher and assistant softball coach, sued the City of Shreveport after she tripped and fell in a hole in the side walk on her way to softball practice at Cargill Park. Matlock twisted her ankle and suffered an avulsion fracture. After being cared for at a local hospital, she was instructed to follow up with an orthopedic specialist and to receive physical therapy.

Matlock sued the City of Shreveport for negligence in maintaining the sidewalk on which she was injured. The trial court awarded her damages and allocated 100% of the fault for the accident to the City. The City appealed the judgment arguing that the lower court’s fault allocation was inappropriate and that it should not be held 100% responsible for the plaintiff’s injuries.

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Recently, Louisiana’s 2nd Circuit heard a civil suit in which the court examined the possible affirmative defenses for defendants of intentional tort cases when the actions of that defendant resulted from an aggressive plaintiff. In the case of Griffith v. Young, Mr. Young appealed the 26th district decision to grant Mr. Griffith a motion for partial summary judgment for his battery case against Mr. Young. After arriving at the plaintiff’s home, the defendant kicked down the plaintiff’s door and physically attacked him using a stun gun, which resulted in multiple injuries to the plaintiff. While these actions alone are shocking, the details are even more strange.

The defendant claimed that the attack stemmed from the plaintiff boasting about past sexual relations with the defendant’s wife and openly distributing provocative photos of her to others. The defendant claimed that the partial summary judgment was ruled in error because his behavior was the result of the plaintiff’s conduct. Further, he claimed that learning of the extramarital affair and the distribution of the pictures was enough provocation by the plaintiff to question the proportion of liability between the two parties, making summary judgment inappropriate. This appeal brings up questions about how liable an individual who is provoked to engage in a physical altercation is relative to the other participant, and how the law handles these “overly aggressive plaintiff” theories by defendants in intentional tort claims. We look at how the 2nd circuit views Louisiana’s current precedent on the issue.

One avenue found within the Louisiana courts, as discussed in Young, is the use of “provocation” as an affirmative defense. Louisiana jurisprudence follows a comparative fault principle for civil claims. Under such a principle, as enacted in La. C. C. art. 2323, the amount of damages recoverable by a plaintiff for any action resulting in injury or loss shall be made in proportion to the degree of fault attributable to that plaintiff. In an effort to promote such a doctrine, Louisiana no long utilizes the “aggressor doctrine.” Under such a doctrine, a plaintiff would be unable to file a claim if it was determined that the plaintiff’s immediate actions sufficiently provoked the defendants attacked. The Louisiana Supreme Court in Landry v. Bellanger eliminated the use of the traditional “aggressor doctrine” and now allows defendants to assert a defense of provocation, utilizing comparative fault principles to proportion liability, when the plaintiff’s actions toward the defendant or a third party immediately provoked the actions of the defendant. The more the plaintiff immediately provokes the defendant, the less liable the defendant would be for any attack that may follow. La. C. C. art. 2323(c) does create an exception to the provocation rule, where a defendant’s intentional tort that arose from a negligent plaintiff does not use the comparative proportionately reduction.

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Under the Americans with Disabilities Act (“ADA”), disabled employees are protected from discriminatory treatment by their employers. The Act protects disabled employees from discrimination with regard to hiring, promotions, termination, compensation, training, and various other conditions of employment. Unfortunately, the Act’s protection is limited – only “qualified employees” are protected from those employers covered under the Act.

For an employee to be successful against their employer for a violation of the ADA, the employee must establish the following elements. First, the employee must have a disability. Second, the employee must establish that they are a “qualified individual” able to perform the essential functions of the job, with or without reasonable accommodation. Lastly, the employee must establish that the employer discriminated against him or her because of the disability. Each of these requirements sound simple enough to meet; however, the U.S. courts have defined and interpreted each of the requirements even further.

“Disability” is a specific term of art. Not every “disability” or impairment, in the ordinary sense of the term, will qualify under the ADA. A “disability” is defined as A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; B) a record of such impairment; or C) being regarded as having such an impairment. Importantly, it is the first type of disability, i.e. one that substantially limits a major life activity, that has been extensively litigated upon.

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Odd things happen in everyday life that, really, no preparation on the part of the victim could prevent. Often chalked up to coincidence or just ‘dumb luck,’ these events do, however, still have legal ramifications for the responsible party, regardless of how odd or unique the event. One case recently affirmed by the Third Court illustrates that no matter how unusual, a responsible party still is responsible for the damage caused.

The plaintiff, Randy Williams, filed suit against the Louisiana Corporation IESI after the company’s garbage truck caused neck and shoulder injury to Mr. Williams. On December 17 2003, Mr. Williams stopped the IESI owned garbage truck during its daily garbage pick-up to request the help of the garbage men. Mr. Williams was requesting the help of the men to get his garbage can to the curb. After the men provided him assistance, Mr. Williams went to the trunk of his car. Mr. Williams testified that he heard a snapping noise and was suddenly struck by the end of a cable wire. It was concluded that the top of the garbage truck had snagged on the end of the cable wire as the garbage men continued on their route after assisting Mr. Williams. After the IESI employee’s realized what had happened, they pulled the wire loose from the truck and informed Mr. Williams that they would send help to fix the cable wire. The trial court found the IESI to be 100% liable to Mr. Williams’ injuries, awarding him just over $50,000.00. The appellate court affirmed the trial court’s ruling, while bringing to light the standard needed by a plaintiff to succeed in the different factual and legal questions required to hold a person liable for negligence.

A prima facie case (or a case in which the evidence presented is sufficient for a judgment) of negligence rests on a plaintiff’s ability to show that a duty was owed to the plaintiff by the defendant, the defendant breached that duty, and actual damage resulted as a direct cause of that breach. IESI believed that the trial court incorrectly determined that Mr. Williams had successfully met this burden. IESI made three arguments to the 3rd Circuit, requesting a reversal of the trial court’s decision: (1) IESI claims the trial court erred in concluding that a flap on the top of the garbage truck was what snagged the cable box and caused the accident; (2) IESI claims the trial court erred in finding that Mr. Williams met his burden of proving that IESI breached its duty of care to Mr. Williams; and (3) IESI claims that the trial court erred in failing to consider the possibility that the injury was in part the fault of the cable company in failing to maintain the cable wire as required by Louisiana regulation.

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Trip and fall cases like that of Ms. Arlene Chambers represent a significant portion of civil cases in Louisiana and around the country. There are various issues of law to review when the defendant appeals a successful result. Ms. Chambers had won a judgment for her injuries against the small Louisiana Village of Moureauville. The Village appealed and was only slightly successful in getting the reduction in the award that they sought.

The events leading to this case occurred on a sidewalk controlled and maintained by the Village in April 2008. Ms. Chambers came upon a “ledge” in the sidewalk where two abutting pieces of the sidewalk were of differing altitudes. She tripped on this ledge and injured her right arm. Ms. Chambers sustained a “comminuted fracture of the radius.” This injury resulted in several rounds of physical therapy that, while appearing at the time to be successful, were not a permanent solution to Ms. Chambers’ nagging injuries. These injuries eventually spread to her shoulder due to the necessary immobilization of her arm caused by the initial injury.

Ms. Chambers was awarded $200,000.00 for past and future pain and suffering; $25,000.00 in hedonic damages; $54,148.00 in future wage loss; $46,616.17 in past medical expenses; $10,000.00 in future medical expenses; and $3,617.34 in past wage loss. The Village was found to be 100 percent at fault for the accident. Ms. Chambers was also awarded all costs and fees, including the fees necessary to pay experts to testify on her behalf.

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Due to the heavy demands on the court system, the Louisiana Code of Civil Procedure includes several provisions to ensure that litigants do not unduly delay the resolution of their disputes. One of these is the concept of abandonment, which refers to an excessive lapse of time without any forward progress in a case. Generally, the Code considers a case abandoned if “the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” Any party or interested person can file an affidavit stating that “no step has been timely taken” in the case, at which time the trial court will dismiss the action by order that is served on the parties by the sheriff. A motion to set aside the dismissal may be filed in the trial court within 30 days of service.

The Louisiana Department of Transportation and Development (DOTD) sued the owner, lessee, insurer, and driver of a truck that struck an overpass on I-10 in Acadia Parish. The truck’s owner, Oilfield Heavy Haulers, LLC (OHH), had leased the truck to Ace Transportation Co. Ace’s employee, David Vincent, was driving the truck at the time that its oversized load collided with and damaged the overpass. On May 21, 2010, Ace filed a motion for dismissal asserting that no step had been timely taken in the prosecution or defense of the action for a period of three years since March 15, 2007; therefore, the suit had been abandoned and should be dismissed. The trial court signed an order of dimissal on May 24, 2010. On June 18, 2010, DOTD filed a motion to set aside the dismissal, which resulted in a hearing on September 27, 2010. The trial court refused to overturn the dismissal, and DOTD appealed, arguing that two actions taken in 2007 demonstrated that the suit had not been abandoned. First, on April 24, 2007, counsel for OHH scheduled a discovery conference and notified all parties. Then, on May 10, 2007, DOTD sent discovery responses to OHH. DOTD relied on La. Code Civ. P. Art. 561(B), which provides that “[a]ny formal discovery … served on all parties … shall be deemed to be a step in the prosecution or defense of an action.” The court disagreed on both points. It reasoned that the scheduling of the discovery conference, which was necessary because of the DOTD’s delinquency in responding to OHH’s discovery requests and was accomplished via letter between the parties’ attorneys, was an “extrajudicial effort.” As such, it was not “formal discovery” sufficient to constitute a “step in the prosecution of the action” under the Code. With regard to the second point, DOTD admitted that it “inadvertently failed to send a copy of its formal responses to counsel for the remaining defendants [other than OHH].” Accordingly, the court held that “the discovery responses were not sufficient to interrupt abandonment given the lack of service on all parties.” It therefore affirmed the judgment of the trial court denying the DOTD’s motion to set aside the order of dismissal.

On appeal, the DOTD characterized the trial court’s ruling as an overly “strict and rigid interpretation” of the Code. Still, the court of appeal found that the “express requirements of the [Code] article itself and the jurisprudence interpreting” it mandated the trial court’s–and its own–conclusion. The complexity of the Code reveals the importance of a plaintiff’s retaining an experienced and skilled attorney who can confidently navigate the waters of litigation. Here, the DOTD lost the chance to recover for the damage to the I-10 overpass due to a procedural error–one that could have been avoided by closer attention to the Code and its requirements.

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Louisiana jurisprudence recognizes the concept of the interlocutory appeal, which is an appeal of a ruling by the trial court before the verdict is ultimately rendered. An interlocutory appeal is available only for issues that would directly affect the trial’s outcome or that would not be reviewable except by immediate appeal. Thus, not all interlocutory judgments made by a trial court are eligible for appeal. For instance, a trial court’s judgment granting a party’s motion for new trial is an interlocutory judgment that is ineligible for appeal because it does not decide the merits of the case. This very rule was at the center of the Third Circuit Court of Appeal’s recent unpublished opinion in the case of Dauzat v. State of Louisiana, Department of Transportation and Development.

On March 10, 2008, Christine Dauzat boiled several batches of crawfish in a large, heavy pot on the patio of her home located in Avoyelles Parish. When she was finished cooking, Dauzat and her adult son carried the pot of still-boiling-hot water to the roadside ditch that ran the length of her property. While attempting to dump out the pot, Dauzat slipped on a ramp that crossed over the ditch. The hot water from the pot poured over her as she fell into the ditch, burning her severely. Dauzat sued the Department of Transportation and Development (DOTD) alleging that the ramp and ditch were located within the DOTD’s right-of-way and that the DOTD failed to properly maintain the ramp. At trial, a jury returned a verdict finding Dauzat to be 100 percent at fault for the accident. Dauzat filed a motion for a new trial, which the trial judge granted after a hearing. Then the DOTD filed a suspensive appeal in the Third Circuit Court of Appeal that sought to delay the commencement of the new trial. Dauzat countered that the DOTD’s appeal was improper “because a judgment granting a motion for new trial is an interlocutory judgment.” The Third Circuit agreed: “The judgment granting [Dauzat’s] motion for new trial does not decide the merits of this case and, thus, is interlocutory.” Louisiana jurisprudence has expressly held that “a judgment granting a motion for a new trial is a non-appealable interlocutory judgment.” Thus, the court found that the trial court’s ruling was a “non-appealable, interlocutory ruling,” and Dauzat was able to proceed with her new trial.

At the center of this judgment was the fact that the trial court’s granting of a new trial did not directly resolve the ultimate issues in the case – whether the DOTD had a duty to maintain the ramp and ditch in front of Dauzat’s property, and whether it failed to do so. The trial court’s judgment simply permitted the matter to be brought before a second jury for resolution, and that ruling was therefore not appealable. The policy of limiting appeals is based on the preference of handling matters at the trial court level whenever possible, as the trial court offers the most direct means by which to resolve factual disputes.

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Time is of the essence when it comes to filing a suit to address a grievance. If too much time passes, one may be barred from filing a lawsuit. The time period for filing a lawsuit is known as the “prescriptive time period.” For example, a lawsuit for personal injury is subject to a one-year period of liberative prescription, following the date of the accident. The issue may become whether or not the time period has passed or not, thus, keeping a close eye on the calendar is the best way to stay safe when filing a lawsuit.

In a recent Louisiana Supreme Court decision, the court explored the time period in which the plaintiff initially filed to determine whether or not he filed in the appropriate time period. The cases arose from a fire at an oil well site in which the plaintiff was severely burned. The oil well accident occurred on September 27, 2007, thus, according to the prescriptive time period, he had one year from this date to file suit against the defendant(s). The plaintiff was employed by a Well Service Company that had contracted with an additional Mineral Company that produced oil and gas. In turn, the Mineral Company contracted with the plaintiff’s direct employer to drill a well. The plaintiff filed a tort suit for his personal injuries against the Mineral Company and its insurer on September 4, 2008, falling within the one-year time period allowed for personal injury lawsuits. The plaintiff sustained injuries during the drilling operations, the well penetrated into formations that were pressurized with hydrocarbons. At the time of the incident, the plaintiff was in charge of circulating water through the well while awaiting heavier drilling mud to be pumped into the well to control the hydrocarbon pressure. His direct supervisor, a Well Service Employee, told the plaintiff to stand away from the well because the level the pressure was dangerous. However, the Mineral Supervisor contradicted the former supervisor’s orders and told the plaintiff to get on his station at the pump and to abandon it only after shutting the pump off should the gas escape the well.

To the plaintiff’s misfortune, he followed the Mineral Company’s supervisor, where shortly after a hydrocarbon gas from down-hole escaped from the water tank sufficientily so that it ignited as the plaintiff was attempting to shut off the pump. This caused the hydrocarbon cloud in which the plaintiff was surrounded by, to become ignited, severely burning his entire body. It was only after the plaintiff filed suit against the Mineral Company that he discovered that the alleged Mineral Company supervisor was actually an independent contractor employed by a separate Pipeline Company. Thus, after the one year period, the plaintiff named the Pipe Company as a defendant in an amended petition. The question became whether or not the amended petition was proper, since the prescriptive period of one year had since passed. Thus, the Supreme Court’s responsibility was to explore the lower court’s decision which sustained the Pipeline Company’s argument that too much time had passed and thus, the plaintiff should not be allowed to add them into the initial lawsuit.

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Under Louisiana jurisprudence, daycare workers and other temporary custodians of children are required to exercise the “highest degree of care” toward their charges. However, they are not “insurers of the children’s safety” with unlimited responsibility. Rather, the law requires custodians to follow a standard of care that is appropriate for the age of the children and the particular circumstances. This duty does not require “individual supervision of each child at all times and places,” when such level of attention is not warranted. If a child happens to sustain an injury while under the care of a daycare provider, courts apply the traditional “duty/risk” analysis to determine whether the provider met the applicable standard of care.

The recent case of Wade v. Miniworld Daycare turned on the court’s analysis of whether the defendant daycare facility “failed to conform to the appropriate standard” of care. The action arose after Ta’Marrion Wade, who was two years, nine months at the time, fell and broke a tooth while running around the Monroe Miniworld Daycare Center’s designated outdoor play area. The boy’s mother, Kassandra Wade, filed suit against the daycare alleging negligent supervision. The trial court entered a verdict for Wade and awarded her damages; Miniworld

appealed. The Second Circuit Court of Appeal noted that the daycare unquestionably met the state’s required standards for the ratio of caretakers to children at the facility. It also examined the record for evidence of the circumstances surrounding the incident: Ta’Marrion was engaged in a running game with his peers in the play area. The children were not “running crazy,” and they did not “fight,” “hit,” “push,” or engage in any other prohibited behavior that would have caused a worker to intervene. In fact, a teacher observed Ta’Marrion fall “face down” at one point, but he immediately “got up and started running … some more.” It wasn’t until Ta’Marrion and the other children lined up to go indoors that the teacher noticed the child’s missing tooth. Ta’Marrion appeared to be in no pain, so the teacher cleaned out his mouth, called Ms. Wade, and filled out an incident report. The court reasoned that “under [these] circumstances, defendant daycare was furnishing and maintaining adequate supervision.” Further, while “daycare professionals have a duty to attempt to prevent … injuries, sometimes it is impossible, as in the situation” described by Ta’Marrion’s teacher. “Just because a child is injured while in the custody of a daycare does not mean that the daycare was acting negligently.” Accordingly, the court concluded that the trial court “committed manifest error by finding the daycare liable,” and reversed the judgment.

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The story behind Davis v. Foremost Dairies is a tale of a woman who could be considered at least slightly accident prone. Three different doctors weighed in on the probable cause of her main injury, a bulge in the disc between two of the vertebrae in her neck. In addition to the car accident with one of the defendants, she suffered a fall down some stairs and an incident in which an eight-year-old child grabbed her neck. The issue at hand was whether or not the accident with the defendant was the proximate cause of her permanent pain.

Proximate cause is a legal concept that most students of law find confusing at first. Proving that a defendant was the proximate cause of a plaintiff’s injury is crucial to proving the overall claim. Palsgraf v. Long Island Railroad Co. is probably the most famous case laying out the legal definition of proximate cause. Chief Judge Benjamin Cardozo, later Justice Cardozo, wrote this often cited opinion. His decision, strongly dissented to by Judge William Andrews, deviates somewhat from what could be called the common sense definition of causation.

For those not familiar with the Palsgraf case, here is a brief explanation. This case dealt with a woman injured by a falling scale on a train platform that was knocked over by vibrations in that platform cause by fireworks. These fireworks exploded when two guards pushed and pulled a man carrying a non-descript package onto a departing train. The issue at hand was whether or not the men, who were in the employ of the train company at the time of the incident, were liable for Ms. Palsgraf’s injuries. A traditional “but-for” analysis of this event would say that Ms. Palsgraf would not have been injured but for the acts of the railroad company’s employees. The New York Court of Appeals reversed the New York Supreme Court and denied relief to the plaintiff. The court determined that the behavior of the train company employees was too remote from the resulting harm. The men were not considered the proximate cause of the plaintiff’s injuries. How do courts determine the issue of causation in a modern context? The answer is very commonly expert medical testimony. Ms. Davis’ case used the opinions of several of these medical experts.

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