Negligence

December 7, 2010

Assessing Responsibility in Tragic Accident on Highway that Kills Two Passengers

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?

December 5, 2010

Sexual Assault Case Illustrates Exceptions to Lawsuits and Need for Qualified Attorney

by Berniard Law Firm

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.

December 3, 2010

Part 2: Case of Barge Accident Reveals Strategy to Prevent Plaintiff’s from Winning Case

by Berniard Law Firm

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.

December 2, 2010

Part 1: Louisiana Barge Case Showcases Divide and Conquer Strategy When Suing Multiple Defendants

by Berniard Law Firm

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.

November 24, 2010

Louisiana Products Liability Act Requires Swift Action by Plaintiffs

by Berniard Law Firm

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.

November 18, 2010

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

by Berniard Law Firm

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).

November 14, 2010

Case Demonstrates Slip/Trip and Fall Accidents Can Be Complicated, Require Skilled Attorney

by Berniard Law Firm

Louisiana Court Stresses Importance of Constructive Notice in Trip-And-Fall Cases

In Smithwick v. City of Farmerville, the Second Circuit Louisiana Court of Appeals affirmed a trial court’s dismissal of a plaintiff’s trip-and-fall case for failure to prove that the municipal defendant had actual or constructive notice of a shallow depression in the city-maintained right-of-way.

The plaintiff, Carol Smithwick, was waiting at a street corner in Farmerville, Louisiana for her child’s school bus to arrive. Smithwick was traversing a sidewalk, and as she stepped off the sidewalk and onto the street, she tripped on a depression in the street’s shoulder. The depression was shrouded by grasses growing around it, and the depression was not immediately visible to Ms. Smithwick at the time. Accordingly, she tripped, fell, and sustained immediate injuries that later caused reflex sympathetic dystrophy.

November 12, 2010

Failure to Submit Claims to Medical Review Panel Results in Lawsuit Dismissal

by Berniard Law Firm

When hurt, many people begin stressing over who to hire to represent their interests. There are thousands of lawyers offering their services and one case, in particular, is a helpful guide to understanding how important picking the right one is. In Horton v. Beck Partners, L.L.C., the claims of a psychiatric patient, Denise Horton, were dismissed because she did not first submit her claims to a medical review panel. In fact, Horton did not characterize her claims as medical malpractice and thereby appealed the decision. Rather, Horton sued for general negligence which is a cause of action under general tort law.

However, the court determined the case did fall under the scope of the Louisiana Medical Malpractice Act, hereinafter ‘Malpractice Act’, which allowed the defendant physician to invoke an ‘exception of prematurity.’ This exception is a procedural mechanism utilized by healthcare providers in the event medical malpractice claims are not first presented to a medical review panel. To elaborate, if a healthcare provider is sued and an action commenced in a court of law, this exception will be maintained and the lawsuit dismissed if the plaintiff fails to first present the claims to a medical review panel.

This outcome is dictated by the Malpractice Act which states that a medical review panel must first review any and all claims against healthcare providers before any action is taken through a court of law. Consequently, in Horton v. Beck Partners, L.L.C., both the trial court and the court of appeals maintained the physician’s exception of prematurity, since a medical review panel was not first consulted, and dismissed the plaintiff’s claims.

November 10, 2010

“Medical Malpractice” Case Dismissed for Failure to Follow Louisiana MMA Requirements

by Berniard Law Firm

A recent Louisiana Court of Appeals decision shows that the question of which type of claim to file after an injury, general tort or medical malpractice, can make or break a case against a health care provider.

In February 2008, Helen Williams was a patient receiving oxygen at Pointe Coupee General Hospital (“PCGH”) in New Roads, Louisiana. Early one morning nurses noticed smoke coming out of a piece of radiology equipment and the fire department was called. By the time the fire department got there, the hospital sprinkler system had already put out the fire which had been confined to the radiology department. However, the decision was made to move patients to the east side of the hospital, behind fire doors. Physicians discussed which patients could be discharged or moved to a local nursing home. They chose to move Ms. Williams to Lakeview Nursing Home in New Roads. She died later that day.

Ms. Williams children and grandchildren (“plaintiffs”) filed an action alleging that PCGH failed to properly provided oxygen for their mother as she waited in the hallway, was removed from the hospital, and was transported to the nursing home. They claim that Ms. William’s death resulted from negligence, not medical malpractice, and as such the case did not need to be submitted to a Review Panel, that specializes in the field of medicine, prior to going to court. PCGH disagreed and filed a prematurity exception claiming the allegations involved medical malpractice and must be submitted to a the review panel under the Louisiana Medical Malpractice Act (“MMA”) La. R.S. 40:1299.41et seq. After a hearing, the trial court maintained PCGH’s exception and dismissed the plaintiffs’ suit upon finding the review panel must first be consulted.

November 8, 2010

Negligence on the Rise in Louisiana in Spite of Texting Ban

by Berniard Law Firm

In Louisiana, a study shows that crash rates continue to rise for drivers under the age of 25 despite outlawing text messaging while driving. In three other states, crash rates were shown to have actually increased after the enactment of anti-texting laws, and, in all four states researched, there were no reductions in crashes after the enactment of these laws.

The study, conducted by the Highway Loss Data Institute (HLDI), was carried out in Louisiana, California, Minnesota, and Washington. Researchers compared statistics of crashes before and after the texting bans were enacted in these states. The four states’ data was then compared to the states that do not have texting bans. The results were obviously not the expectation of lawmakers and has left many troubled by what can be done to counter the dangers technology is creating.

HLDI says that one possible explanation for the increasing negligence and rise in crash levels could be that people are continuing to text in spite of these laws.