Articles Posted in Negligence

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As we have discussed previously on this blog, summary judgment is a procedural device for expediently resolving a case without a full trial where there is “no genuine issue of material fact.” Johnson v. Evan Hall Sugar Co-op, Inc., 836 So.2d 484, 486. (La. App. 1st Cir. 2002). It is well settled in Louisiana that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact” and that party requesting judgment is entitled to it as a matter of law. See La. Code Civ. P. Art. 966(B). A trial court’s analysis of whether summary judgment is proper can involve the review of a considerable volume of documents which may contain conflicting information. The First Circuit Court of Appeals recently ruled on a summary judgment motion in a medical malpractice case that turned on the trial court’s treatment of the defendant doctor’s deposition and subsequent affidavit.

On June 9, 2007, Percy Bethley, 80, was admitted to Baton Rouge General Medical Center Mid-City (“BRGMC”) with breathing difficulties. He had a five-year history of serious heart and lung disease. Bethley underwent various treatments in the hospital and received a pulmonary consultation by Dr. Reza Sheybani. After examining Bethley, Dr. Sheybani decided to replace the Bethley’s tracheostomy tube. A respiratory therapist, Cecilia Eason, was brought in to perform the replacement. Eason had great difficulty with the procedure and, sadly, as a result of a series of further complications, Bethley expired.

Following Bethley’s death, his widow and children (the plaintiffs) filed a medical malpractice complaint with the Louisiana Patients’ Compensation Fund. The panel found that the evidence supported the possibility that Dr. Sheybani failed to meet the applicable standard of care and that his conduct had been a factor in Bethley’s death. The plaintiffs then filed suit against BRGMC and Dr. Sheybani, alleging that Dr. Sheybani and the hospital employees who treated Bethley negligently contributed to his death. BRGMC answered and filed a motion for summary judgment. Dr. Sheybani responded with a pleading that opposed summary judgment and which included a personal affidavit that contained his own expert medical testimony. This testimony was offered to prove that genuine issues of material fact existed in the case: Dr. Sheybani alleged that Eason, a BRGMC employee, had been negligent in her treatment of Bethley. BRGMC then filed a motion to strike the affidavit of Dr. Sheybani, which the trial court granted after a hearing. The trial court also granted BRGMC’s motion for summary judgment, and dismissed with prejudice the plaintiffs’ claims against BRGMC. Dr. Sheybani filed a motion for devolutive appeal.

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A Union Carbide Corporation plant facility in Taft, Louisiana, leaked a toxic chemical compound for at least seventeen hours on September 10th and 11th in 1998. Rainwater accumulation from Tropical Storm Frances caused partial collapse of the floating roof on a large tank storing liquid naphtha. Consequently, a tank seal broke allowing escape of liquid naphtha which volatilized and exposed workers and surrounding residential areas to naphtha fumes including the towns of Montz and Killona. An estimated 4.6 million pounds of naphtha vaporized before application of a chemical foam to the tank roof effectively stopped the volatilization hazard.

In the case of Howard v. Union Carbide Corporation, the Supreme Court of Louisiana reduced to negligible amounts the already decided damages awarded to plaintiffs exposed to the naphtha fumes. Specifically, original damages awarded were $3,500, $2,500, and $1,500. However, the Supreme Court reduced these damages to amounts of $500, $250, 150, and $100 based on proximity to the leak with higher awards to those within the plant and lower awards to those in the surrounding residential areas.

Exhibiting a controversial impression of the dangerous chemical involved, as well as defining exposure injuries, the Court concluded “simply no reasonable relationship” exists between the injuries and the original damages awarded. Assuming all fumes are equal regardless of the vastly different compounds which any given chemical leak may constitute, the Court cited other negligible awards in other cases despite the fact that the other cases involved unrelated chemicals.

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As we have examined in several prior blog posts, expert testimony plays a very important part in the resolution of many tort suits, especially those involving medical malpractice claims. Because the details of medical procedures can add considerable complexity to a case, expert witnesses are commonly relied on by both plaintiffs and defendants to help the jury better understand the facts. The input of experts is essential to the jury’s analysis of whether a doctor’s conduct which caused the plaintiff’s harm met the applicable standard of care; the recent case of Verdin v. Hospital Service District No. 1 of the Parish of Terrebonne, No. 2010 CA 0456 (La. Ct. App. 1st Cir. 2010), offers a look at the considerations a court may give when qualifying a witness as an expert.

On February 27, 2002, Don Verdin underwent back surgery at the Terrebonne General Medical Center to repair a herniated disc. Dr. Henry Haydel, an orthopedic surgeon, performed the procedure. During the surgery, Dr. Haydel’s tool punctured an artery, which required emergency surgery to repair. It was also discovered that Verdin’s bowel had been punctured, which necessitated yet another surgery to correct. Following these procedures, Verdin developed a severe infection that required an extended hospital stay, during which he experienced a number of other complications prior to his release from the hospital nearly a month later. Verdin filed a medical malpractice complaint with the Louisiana Patient’s Compensation Fund against Dr. Haydel, alleging that Dr. Haydel breached the standard of care in performing the back surgery and failed to properly treat the injuries that occurred during the surgery. Verdin also included similar claims against the surgeons who repaired the artery and bowel perforations. The Medical Review Panel found that none of the doctors who treated Verdin failed to meet the applicable standard of care as charged in the complaint. Nevertheless, Verdin filed a medical malpractice suit against Dr. Haydel in June of 2005, alleging the same claims as were denied by the Review Panel. Following a four-day trial, during which numerous expert witnesses testified, the jury returned a verdict in favor of Dr. Haydel, finding that he did not breach the standard of care in his treatment of Verdin. Verdin then filed an appeal in which he attacked the jury verdict as manifestly erroneous.

Verdin’s primary enumeration of error centered on the expert testimony of Dr. Chad Millet, who was called as a witness by Dr. Haydel during the trial. Verdin objected to Dr. Millet’s qualifications, arguing that he did not have the necessary knowledge to qualify as an expert witness because he had not performed spine surgery in the six years prior to Verdin’s procedure in 2002. Verdin further asserted that because Dr. Millet had not taken any continuing medical education courses in the area of spine surgery during that time, he was not qualified to testify regarding the surgical procedure employed by Dr. Haydel. In reviewing the trial court’s decision to nevertheless accept Dr. Millet as an expert in the field of orthopedic surgery, the court reviewed La. R.S. 9:2794(D)(l)(b) and (c). These provisions require that in order to qualify as an expert witness, a physician must have knowledge of accepted standards of medical care for the treatment involved in the claim, and that the physician must be qualified on the basis of training to offer an expert opinion regarding those accepted standards of medical care. The court also reaffirmed the long-standing view “trial courts have great discretion in determining the qualifications of experts and the effect and weight to be given to expert testimony. In the absence of a clear abuse of this discretion, [appellate courts] will not disturb a trial court’s ruling on the qualification of a witness.” See Bradbury v. Thomas, 757 So.2d 666, 673 (La. App. 1st Cir. 1999). “It is well settled,” noted the court, “that the law does not require an expert to be actively practicing in the particular specialty about which he or she will testify.” Instead, “the court need only be satisfied that the witness is qualified to give testimony regarding the applicable standard of care. Bradbury, 757 So.2d at 674.

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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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