Articles Posted in Negligence

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In a prior post, we explored the elements that a plaintiff must prove in order to recover against the owner of a business due to an unsafe condition on the property. There, the plaintiff, Lisa Beckham, tripped and fell over some loose asphalt in an unpaved parking lot of a children’s play facility in West Monroe. The case hinged on the analysis of whether the asphalt posed an “unreasonable risk of harm” to the customers who visited the property. The Second Circuit determined that under the facts of the case, the question was best left to a jury and was not appropriate for summary judgment. In the recent case of Bias v. Scottsdale Insurance Co. the Third Circuit also examined the requirement for the plaintiff to prove that there was a defect in the property that presented an unreasonable risk of harm, but reached a different result. Ray Bias injured his knees when he fell in the parking lot of David & Lori’s Kitchen Restaurant in Mamou. Bias’s fall was caused by several pieces of loose pea gravel on the concrete surface just outside the restaurant’s takeout window. Bias didn’t notice the gravel as he approached the window because he was looking up at the menu board posted above the window. In a complaint for damages against the establishment, Bias alleged that the gravel presented an unreasonably dangerous condition for restaurant patrons. The restaurant and its insurer, Scottsdale Insurance Company, filed a motion for summary judgment. At the hearing, Bias presented no expert testimony or other evidence to support his assertion that the gravel was unreasonably dangerous. Accordingly, the trial court granted the defendants’ motion and dismissed Bias’s action. Bias appealed, citing as error that there existed issues of fact as to the danger posed by the gravel.

The Third Circuit declared that “[t]he record contains no evidence to support [Bias’s] opinion that the presence of ten to twenty pieces of pea-sized gravel on [the restaurant’s] cement pad created an unreasonably dangerous condition.” The court further noted that Bias admitted he was “not exercising ordinary care” when he walked into the cement area while looking up at the menu board. After reviewing the state’s position that Louisiana property owners are not “insurers of the safety of visitors,” but instead simply “owe a duty to keep their premises in a safe condition for use,” the court concluded that the trial court’s dismissing Bias’s complaint at summary judgment was appropriate. Bias “did not present any evidence to support his allegation … [and] it was incumbent on [him] to do so in order to survive summary judgment.”

By contrast, the defective condition in the Beckham case required a more fact-intensive analysis. The plaintiff put forward evidence that painted a vivid picture of the overflow parking lot where she fell: the lot was unpaved and consisted of dirt, grass, rock, gravel, and chunks of crushed asphalt. Also, there was no evidence that she was not exercising ordinary care when she fell. Accordingly, the court concluded that based on the facts of the case, the determination of the lot’s level of dangerousness should left to a jury.

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The parties to a legal dispute, such as the payment of damages resulting from a car accident, can reach an agreement between themselves to resolve the matter and avoid litigation. This agreement, under which the parties “give and take” to arrive at a solution that is satisfactory to both, is called a compromise. Under Louisiana law, a compromise is considered a contract which must be made in writing, but there is no specific requirement as to the form. What is important is that a compromise resolves only those differences that the parties clearly intend to settle, which under general contract law requires a “meeting of the minds.”

Louisiana courts have recognized that a check can serve as a compromise if it recites that it is in full payment for all claims and the check is endorsed and deposited by the payee. But as the parties in the case American Century Casualty Company v. Sale, discovered, the courts will scrutinize a compromise based entirely on the endorsement and deposit of a check to ensure both parties’ objectives were in alignment.

On August 9, 2008, a car accident occurred between Dr. Charles F. Sale and Michelle Barett. Barrett, who was at fault, was driving a vehicle owned by her parents and insured by American Century Casualty Company (ACCC). A short time thereafter, an ACCC representative contacted Sale and discussed settlement. ACCC then mailed the following to Sale: a letter describing the steps that Sale would be required to take to resolve the claim; a settlement and release form; and a settlement check in the amount of $1,820. The enclosed letter directed Sale to sign the release and return it to ACCC, at which point ACCC would issue the settlement check. (Although the letter indicated that a settlement check would follow a “properly executed release,” ACCC erroneously mailed all three documents in the same envelope at the same time to Sale.) The front of the settlement check included the following text: “CHARLES SALE, ONLY: IN F/F SETTLMT/RELEASE OF ACCC/… BARRETT FROM ANY/ALL CLMS/LNS ON D/L 8/9/08, CLM 10995-9.” Sale, finding the amount of the settlement check insufficient, put the documents aside. Later, Sale’s wife discovered the check and deposited it without his knowledge. When Sale filed suit against Barrett and ACCC in August of 2009, ACCC filed a motion for summary judgment contending that Sale had previously compromised and released his claims against the company and Barrett by endorsing and depositing the settlement check issued to him. The trial judge granted summary judgment in ACCC’s favor and found that Sale had released all future personal injury claims. Sale appealed.

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In injury cases, general damages aim to compensate the victim for mental or physical pain and suffering, inconvenience, loss of quality of life, or other “intangibles.” Because these damages cannot easily be quantified in monetary terms, the jury (or judge in a bench trial) is tasked with assessing and awarding them. Louisiana courts have consistently held that “in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion.” Furthermore, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.”

Given this deferential standard, it is relatively rare for a jury’s award of damages to be modified on appeal. Nevertheless, the case of Case v. Shelter Insurance Company, No. 10-302 (La. App. 3d Cir. 2010) offers an example. On May 22, 2006, Patricia Case was driving her car on Oday Road in Loreauville. She came upon a tractor being driven slowly by Barry Frederick, an employee of Burt Oubre Farms. Just as Case pulled into the oncoming lane in an effort to pass the tractor, Frederick began to make a left-hand turn across her path without signaling. The vehicles collided approximately two feet across the center line of Oday Road. Following the accident, Case experienced severe back pain that ultimately required her to undergo a lumbar microdiskectomy and laminectomy in December of 2007. Case filed a lawsuit against Frederick, Oubre Farms, and the farm’s insurance carrier, Shelter Insurance Company. At trial, the jury found Case 25 percent and Frederick 75 percent comparatively negligent and awarded Case $49,999.98 in general damages. Case appealed this judgment, arguing that the jury improperly found her negligent and that the general damages award was insufficient.

On appeal, the Third Circuit quickly dispensed with Case’s argument concerning liability, holding that the jury did not commit “manifest error” in reaching its conclusion. Next, turning to the issue of the damages award, the court applied the abuse of discretion standard. The court examined the extent and severity of Case’s injuries and reviewed the various cases relied upon by Case to substantiate that the jury’s award was “abusively low.” Despite the good recovery Case had made by the time of the trial, the court nevertheless found that “when considering the record as a whole, we are required to find the award of $49,999.98 in general damages below the range of the jury’s discretion.” The court referred to its prior decision in Este v. State Farm Insurance Company, 676 So.2d 850 (La. App. 3d Cir. 1996), where it held that “an award of $75,000 was the lowest amount within the court’s discretion for the aggravation of a pre-existing, asymptomatic, spondylosis and bulging disk that did not warrant surgery.” Thus, the court reasoned, “[i]f a simple bulging disk and aggravation of an asymptomatic spondylosis can be awarded a minimum of $75,000 in general damages, an active herniation of a disk with surgical intervention warrants a general damage award of $100,000.00; any amount below that would be considered an abuse of the jury’s vast discretion.” Accordingly, the court amended the jury’s damages award to $100,000.

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Louisiana law requires owners of businesses to use reasonable care to ensure that their parking lots, sidewalks, entryways, and other areas are safe for the public. If a customer is injured by an unsafe or defective condition, he or she must prove the following four elements in order to recover in tort: 1) the location was within the defendant’s control, 2) there was a defect which presented an unreasonable risk of harm, 3) this defective condition caused the customer’s injury, and 4) the defendant knew or should have known of the defect.

Whether the condition of the premises posed an unreasonable risk is often the most disputed matter in a slip-and-fall case. Over the years, the Louisiana courts have determined that there is no “fixed rule” for determining whether a defect presents an unreasonable risk of harm. The trier of fact must “balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair.” The courts have generally concluded that the analysis of whether a defect presents an unreasonable risk of harm encompasses “an abundance of factual findings, which differ greatly from case to case,” such that the analysis “cannot be applied mechanically.” As the parties discovered in Beckham v. The Jungle Gym, L.L.C., No. 45,325-CA (La. Ct. App. 2d Cir. 2010.), this means that, practically speaking, slip-and-fall cases are not ideally suited for resolution by summary judgment.

On October 7, 2006, Lisa Beckham took her two children to play at the Jungle Gym indoor playground in West Monroe. Upon arriving, Beckham parked her car in the “overflow” parking lot because the main parking area was full. The overflow lot was unpaved; its surface consisted of dirt, grass, rock, gravel, and chunks of crushed asphalt. When Beckham later returned to her car, she tripped on one or more large chunks of asphalt, fell to the ground, and broke her right ankle. Beckham filed suit against Jungle Gym alleging that the parking lot where she fell was unreasonably dangerous. Jungle Gym filed a motion for summary judgment in which it denied custodial responsibility and asserted that the parking lot did not pose an unreasonable risk of harm. The trial court granted Jungle Gym’s motion and dismissed Beckham’s complaint.

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According to state police, and reports in LaPlace’s L’Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

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Falling victim to a sexual assault is a nightmare that too many people in the Gulf Coast, and across America, are forced to fear. While most people think of such an incident in the realm of criminal charges, there are very real civil elements to such an event that are important. When a variety of individuals, or in the rare case businesses, are involved, civil liability exists that allows the victim to receive compensation for the various damages they suffered. However, hiring the proper attorney can be very important in such complex cases.

In the case of Piligra v. America’s Best Value Inn, Susana Piligra attended a nightclub located inside of the America’s Best Value Inn. There, Ms. Piligra consumed an excessive amount of alcohol. She eventually lost consciousness and was escorted by a nightclub employee to a hotel room. On the way to the hotel room, an unknown male offered to assist the nightclub employee and Ms. Piligra to the hotel room. Unfortunately, the hotel employee left Ms. Piligra in the care of the unknown male and, when Ms. Piligra’s friend went to check on her, she found the hotel room locked and the curtains closed. Her friend opened the door but the security chain was latched. When the friend moved the curtain, she did, however, see an unknown male climbing off of Ms. Piligra with his pants down. After Ms. Piligra was transported to a local hospital, it was determined that she was allegedly raped by the unknown male while she was unconscious.

In response to this incident, Ms. Piligra filed suit alleging that the owner of America’s Best Value Inn, Dhan Laxmi and their insurance company Evanston. In her suit she claimed that both parties negligently took her to a hotel room without her consent, failed to attend to her responsibly as required by an innkeeper or as one who assumed a duty of care and that she was left alone with an unknown male subjecting her to rape and other injuries. Upholding the lower court’s decision, the Court of Appeals refused to hold the insurance company, Evanston, responsible for any of Ms. Piligra’s injuries. Interpreting the insurance policy as it would any other contract, the court held that the policy exclusions found in the policy were unambiguous and prevented Ms. Piligra from recovering from the insurance company.

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Resuming where we last left off in this important case…

The court then turned to the deposition of Rigoberto Garcia, an employee of Maxum. Garcia had testified that while he was at work the day before the accident, all safety barricades were set up. He said that Maxum employees never removed the safety barricades when they worked around or passed through the holes. Instead, they would climb over or through the cables. Garcia finally stated that he left work every day at 5 p.m. The depositions of two other Maxum employees supported Garcia’s testimony. The combined testimony of these Maxum employees tended to show that the removal of the cables occurred when Maxum workers were not on site.

Finally, the court examined the testimony of Glenn Russo, an employee of Corrosion. Russo testified that his foreman, also an employee of Corrosion, had confirmed he’d been the one to place the plastic sheeting over the manhole. This admission effectively eliminated Maxum as the culprit behind the plastic sheeting that obscured the hole from Cotone’s view.

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The Third Circuit Court of Appeals for Louisiana released their decision in Cotone v. Corrosion Control Systems, Inc. The case highlights the importance of the plaintiff’s “divide and conquer” strategy when litigating against multiple defendants. Additionally, it illuminates the challenges defendants and plaintiffs may both face in lawsuits involving injuries occuring in settings controlled and occupied by multiple parties.

In 2006, Timothy Cotone was employed by Superior Derrick Services as a shipyard supervisor on a Lousisiana river barge. Superior was tasked with converting the barge into a drilling rig. In order to accelerate the conversion, Superior subcontracted temporary workers supplied by Maxum Industries to perform welding and fitting services. Meanwhile, Corrosion Control Systems was hired separately by the barge owner to provide sandblasting and painting services. Superior and Corrosion were separate companies otherwise unaffiliated with one another.

On November 3, 2006, Cotone stepped into an open hole on the barge and suffered injuries. Typically, the hole was barricaded by safety cables. However, when Cotone stepped into the hole, no such safety cables were in place. Furthermore, plastic had been placed over the whole, preventing Cotone from noticing the opening. Naturally, Cotone concluded that one of the other barge workers must have negligently removed the safety cables and placed the plastic over the hole. Consequently, he sued to recover for his injuries.

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In Louisiana, a tort suit must be filed within a certain period of time after the incident occurs. This is called the “prescriptive period,” and serves several purposes. It puts the defendant on notice within a reasonable period of time that a plaintiff has a possible claim against him and thereby allows him to preserve evidence that may be required for trial. It also supports the state’s efforts to resolve legal disputes in a timely manner. The prescriptive period for a specific tort is set by statute. For product liability cases, the Louisiana Products Liability Act “establishes the exclusive theories of liability for manufacturers for damage caused by their products” and creates a one-year prescriptive period for claims that “commences to run from the day injury or damage is sustained.” See LA. CIV. CODE Art. 3492.

Filing a lawsuit even one day past the expiration of the prescriptive period can prove fatal to a plaintiff’s effort. For example, Carter v. Matrixx Initiatives, Inc., No. 09-31134 (5th Cir. 2010) involved a plaintiff who filed her lawsuit just six days too late and was barred from recovering. On February 23, 2007, Ruth Carter of Livingston Parish used Zicam No Drip Liquid Nasal Gel Cold Remedy and immediately experienced excruciating burning pain in her nose. By the next day, she lost her sense of smell and sense of taste. The pain was so severe that Carter was unable to work and told her employer that she believed the Zicam had caused the burn when she called in sick. Carter sought medical treatment from her primary care physician who did not confirm the cause of her injury but referred her to a radiography center for further examination. During the imaging appointment on May 7, 2007, Carter told the technician about her suspicions about the Zicam. The technician responded that she had received an e-mail communication warning “to be on the lookout for [the same kind of] problem with Zicam.” Carter filed suit against Matrixx Initiatives, Inc, the maker of Zicam, on February 29, 2008 in Louisiana state court. The case was removed to federal court where the Louisiana Products Liability Act was to be applied by the court. Matrixx then filed a motion for summary judgment seeking a dismissal, arguing that because Carter’s suit was filed six days after the expiration of Louisiana’s one-year prescriptive period for product liability suits, Carter’s action should be barred. The district court granted Matrixx’s motion on this ground, and Carter appealed.

In her appeal, Carter argued that the doctrine of contra non valentem should apply. Under this doctrine, the running of the prescriptive period is suspended “until the facts necessary to state a cause of action are known or reasonably knowable to the plaintiff.” The idea is that the plaintiff is not penalized for failing to act until she has “actual or constructive notice of the [tort], the resulting injury, and the causal connection between the two or that the plaintiff’s lack of such knowledge was willful, negligent or unreasonable.” See Sharkey v. Sterling Drug, Inc., 600 So. 2d 7013 (La. App. 1st Cir. 1992). In effect, Carter’s position was that not until her conversation with the radiography technician on May 7, 2007 did she become aware that the Zicam caused her injury and, accordingly, the prescriptive period should not have begun running until that date. The Fifth Circuit rejected this argument. The court found that it was “apparent that Carter first sustained the injury that allegedly resulted from her use of Zicam on February 23, 2007 and that she had actual knowledge of pain and sensory loss on that same day.” The court noted that “from the very outset, Carter suspected and attributed her injury to Zicam, and she never wavered in that belief.” In the court’s view, Carter “indisputably” had both the belief that Zicam caused her injury and a reasonable basis for seeking to hold its manufacturer responsible “on February 24 at the latest.” Therefore, the prescriptive period “began running on February 23 (February 24 at the latest),” and so Carter’s filing of her lawsuit “was at least five days late.” The court affirmed the lower court’s dismissal of Carter’s claims.

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Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court

On the afternoon of June 20, 2005, Jesse Brooks, an operating engineer who worked for Industrial Plant Maintenance in St. Gabriel, was driving a backhoe along the shoulder of La. Highway 30. Brooks was followed by his coworker, Steve Harris, in another vehicle. As Brooks approached a driveway that connected with the highway, the backhoe hit a depression and rolled over on its right side. Harris immediately approached the backhoe, where he found Brooks unconscious in the cab. Brooks died shortly thereafter. Brooks’s widow, Lola, filed a wrongful death action against the State of Louisiana through the Department of Transportation and Development (DOTD). At trial, the jury found the DOTD negligent in maintaining the shoulder of the highway, returned a verdict for Mrs. Brooks, and awarded her approximately $812,000 in damages.

The DOTD appealed, alleging several errors on the trial court’s part. Among them was an improper jury instruction. Under Louisiana law, the trial judge is required to instruct jurors on the law applicable to the issues submitted to them to decide. La. C.C.P. Art. 1792(B). The jury charge “must correctly state the law and be based on evidence adduced at trial… Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues.” LeBlanc v. Landry, 21 So.3d 353, 358-359 (La. App. 1st Cir. 2009). If the trial judge “omits an applicable, essential legal principle, [the] instruction does not adequately set forth the law applicable to the issues to be decided by the jury and may constitute reversible error” which is remedied by a de novo review of the jury’s findings by the appellate court. Leblanc, 21 So.3d at 358-359; see also Picou v. Ferrara, 483 So.2d 915 (La. 1986).

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