Negligence

August 2, 2010

Tioga Slip and Fall Case Study Part 1: The Plaintiff’s Burden of Proving Notice

In a previous post, we explored the elements of a negligence action that arose after a customer slipped and fell on a pool of vomit left by another customer while visiting a store in Farmerville. One of those elements is “notice,” or whether the merchant created or was aware of the unsafe condition that caused the plaintiff’s injury. In the Farmerville case, the plaintiff was unable to show that the store owner had notice of the vomit on the floor that caused her fall, and so her suit was not successful.

The recent case of Peoples v. Fred’s Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010), illustrates how the plaintiff’s ability to prove notice can result in a different outcome. On August 10, 2004, Virginia Peoples and her husband, Wyndell, entered the Fred’s Store in Tioga. Upon passing through the entranceway, Peoples tripped over some boxes laying on the floor just inside the door which extended into the walkway. The boxes contained gazebos that were part of a clearance sale. Peoples fell forward into a display of stacked coolers, where she hit her chin before landing on the concrete floor. Pain in her neck and right wrist, shoulder, and arm prompted her to go to the emergency room at LaSalle General Hospital, where she was diagnosed with a pinched nerve and a radicular neck injury.

Peoples sued Fred’s Store for negligence, a bench trial was held, and Peoples was awarded nearly $200,000 in damages. Fred’s Store appealed, arguing, among other things, that the trial judge improperly concluded that Fred’s Store had notice of the improperly placed boxes that caused Peoples’s fall.

July 27, 2010

Louisiana Appeals Finds Unreasonably Dangerous Condition in Premises Liability Case

by Berniard Law Firm

Jeanine Pryor of Lake Charles was injured when she fell exiting bleachers at a football came and filed a claim for damages due to injuries she sustained. Her claim was denied at the trial court level and in a recent decision, the Louisiana Third Circuit Court of Appeals reversed the trial court and awarded Ms. Pryor a significant damage award (over $500,000), even after reducing her damages by 30% due to a finding that she was partially at fault for the accident.

Ms. Pryor, of Lake Charles, went to New Iberia to watch her grandson’s team play a playoff football game at Lloyd G. Porter Stadium. The facility is owned by the Iberia Parish School Board. Spectators at the field sit on either west or east side spectator seating. According to reports the west side, where home team fans sit, is a much nicer facility made of concrete that sits well off the ground and has ramps leading to the seats. The east side of the field, where visiting teams traditionally sit, contains metal frame bleachers with wood seat boards and foot boards and rails around the rear and upper portions. The bleachers have no aisles for walking up into the stands or rails to help someone walking up rows.

When she arrived at the stadium, the 69 year old Ms. Pryor walked to the visitor side of the stadium, balancing on the uneven ground with her daughter’s help. Because the players and cheerleaders standing on the sidelines blocked the view of the game from the bottom rows, Ms. Pryor needed to climb up into the stands. Because she could not step up the eighteen inches from the first board to the second she had to grab the second board and lay on her side to swing up her legs one at a time. During halftime, Ms. Pryor needed to use the restroom so, again, with her daughter’s help, she walked down the bleachers. When she came to the second seat board, she stepped down slowly the extended distance to reach the first board and fell back. She dropped her daughters hand and suffered a broken leg and other injuries.

July 25, 2010

Proving Causation Takes More than Just Possibilities

by Berniard Law Firm

Sometimes one plus one does not equal two. This was a lesson learned by the Living Epistle Church after a suit against the City of Shreveport. The church sued the city for damages to its sanctuary building, which was allegedly caused by a leaking sewer main. The trial judge heard testimony from the pastor and several experts and awarded $150,000 in damages to the church. However, the city appealed, arguing that the church had failed to prove that the sewer main leaked and was the cause of the damage to the sanctuary. The appellate court agreed with the city and reversed the decision and dismissed the claims.

In a civil suit like this one brought by the church, the plaintiff has the burden of proving the negligence of the defendant by a preponderance of the evidence. Most negligence cases require proving the following separate elements

whether the defendant had a duty to conform his or her conduct to a specific standard

July 17, 2010

The Need to Hire an Attorney For Car Accidents Illustrated in Recent Case

by Berniard Law Firm

Victim John Deshotels learned the hard way what happens when you donÕt have a an attorney represent you in an accident injury claim. He took his case to trial unrepresented and lost. Even after getting an attorney the damage was done and he lost again in a recent Court of Appeals decision. Plaintiff John Deshotels appealed the trial courtÕs granting of involuntary dismissal of his case against Nicholas J. Fontenot and his insurance company. Deshotels alleged he was rear ended by a car driven by Fontenot and injured. The case went to trial and following Deshotels’ presentation of his evidence, the insurance company moved for involuntary dismissal pursuant to La. Code Civ.P. art. 1672 (B).

Louisiana Code of Civil Procedure Article 1672 (B) states: that when there is no jury, a party When there is no jury, an action tried before the court may be over rather quickly. After a plaintiff has finished presenting their evidence, either party may then ask for a dismissal of the case based on the ground that the plaintiff has not shown any right to relief. The judge must rely on both law and the facts of the case that have been presented at that time. Then, the court is permitted to examine the facts currently presented and make a judgment against the plaintiff and in favor of the moving party. Or the court may decline to make any judgment on the matter until the close of all of the evidence.

Trial courts have discretion to grant an involuntary dismissal if, after weighing the evidence, they determine the plaintiff has not proved their claim by a preponderance of the evidence, or the more likely than not standard.

July 5, 2010

Tragedy Reminds Louisiana Residents of Dangers With Semi Trucks

by Berniard Law Firm

On May 7, 2010, the Donaldsonville community was saddened when 20 year-old Ryan Johnson was killed in a car accident when his car flipped after he collided with a semi-truck on LA 70. While this loss is tragic, it is also a reminder that accidents involving semi trucks should be treated differently that regular car accidents and usually require assistance from an attorney who has experience resolving these cases.

In a typical fender bender with another car, an attorney may not be required. After the collision, both drivers make sure they don’t have any injuries, call the paramedics if needed, exchange contact and insurance information, have the police make a report if necessary, and they settle the cost of damages through their insurance companies. Often in these situations, especially in small communities, the drivers know each other and can easily call the other if they need any additional information that they didn’t get immediately after the accident. It is a fairly straight-forward process.

Accidents between a car and a semi truck are different and require the driver of the car to be informed and consult an attorney soon after the accident. Truck drivers haul cargo across the country for a living. When they are involved in an accident, you are not just dealing with the other driver, but the company they work for. Trucking companies have similar liability insurance as the average driver; however, these companies are better equipped to handle accidents because they have already prepared for this situation. Trucking companies also have attorneys working to protect their assets that may only work on these types of cases. Trucking companies and their insurance providers are both business and have the goal of giving you the least amount of money for your settlement. It is important that you have someone fighting equally as hard on your side.

July 1, 2010

Court of Appeals Examines the Scope of Employment Requirement for Vicarious Liability

by Berniard Law Firm

In a recent Louisiana Court of Appeals decision, Janika Johnson appealed a verdict in favor of Gilley Enterprises, owner of a Monroe McDonalds. Johnson, as a customer at the McDonald’s in 2006, was involved in an altercation with an employee. There was a history of ill feeling between Johnson and the employee because Johnson was dating the father of the employee’s child. Johnson called the other woman over to the counter, and a conversation ensued which turned loud and heated. The employee reached over the counter and struck Johnson in the face. Other store employees intervened. Johnson was told to leave and started towards the door. The other woman picked up a cup, dipped it into an open vat of hot grease, and threw the hot grease on Johnson, who suffered serious burns on her face and body.

Johnson filed suit against Littleton (the employee) and Gilley Enterprises, contending that Gilley was liable because their managers were negligent in hiring, training, and supervising Littleton and that Littleton’s attack occurred in the course and scope of her employment, making Gilley vicariously liable. Gilley responded that all of Johnson’s causes of action had prescribed. The trial court granted Gilley’s exception for the negligence claim but denied it pertaining to vicarious liability. Gilley filed a motion for summary judgment to dismiss the remaining vicarious liability claims arguing that Littleton was acting outside the course and scope of employment, the trial court agreed and Johnson appealed. On appeal Johnson argued that the trial court erred in concluding La.C.C. art 3493.10 was inapplicable to her claims of negligent hiring, training and supervision.

Louisiana C.C. art 3493.10 states:

June 29, 2010

Jones Act Case Dismissed in Federal Court: Norco Tankerman will not be Able to Collect From his Employer

by Berniard Law Firm

In October 2007, a Norco tankerman was injured aboard the M/V DUSTIN CENAC at dock #2 of the Valero Corporation’s facility in Norco. The tankerman was completing the loading procedure of the barge when the Valero dock man prematurely began lifting the loading arm and he was pinned between the arm and a winch on the barge. He brought suit against his employer and owner of the barge, Cenac towing, and Cenac filed a motion for summary judgment. The motion was granted on February 12 when a Federal judge ruled that no issue of material fact existed as to whether they were negligent.

The Jones Act provides seaman with a cause of action for injuries that result from an employer’s negligence. To prove negligence, the injured party must prove that the employer had a duty to them which was breached and that the breach was the cause and proximate cause of the accident. Proving proximate cause goes beyond merely proving that without the breach of duty the injury would not have occurred but also that the injury naturally and foreseeably resulted from the breach.

In this case the judge found that nothing in the complaint or depositions showed negligence on the part of Cenac. While the injured tankerman’s attorney suggested possible negligence by the Valero employee and suggested the vessel may have been unseaworthy due to a malfunctioning loading arm, the tankerman testified that nothing done by the Cenac’s crew did anything to contribute to his injury.

June 27, 2010

Four People Injured in One-Vehicle Natchitoches Crash: What Happens When Passengers Get Hurt?

by Berniard Law Firm

Early in the morning hours of Saturday, February 6th, 20 year old Jamane M. County of Montgomery was driving a 2002 Honda Civic South on U.S. Highway 71 when he lost control of the car. According to an article on thetowntalk.com,

The car ran off the right side of the road, vaulted across a creek, hit an embankment on the opposite side and overturned.

County and two of his passengers sustained moderate injuries and were taken to nearby hospitals; County to Nathitoches Regional, 18 year old Kayla Monroe to Louisiana State University (LSU) Medical Center, and a male juvenile to Rapides Regional Medical Center. A third passenger,19 year old Kimber Vanantwerpen, was injured seriously and also taken to LSU Medical Center.

June 25, 2010

Legal Responsibility for Accidents/Harm in Orleans Parish Nursing Homes

by Berniard Law Firm

Admitting your elderly mother into a nursing home is supposed to relieve stress and lift a burden from your shoulders. You believe she is going to receive the proper care she needs that you are unable to provide.

Unfortunately, for Edward Lewis, tragedy happened after he made this tough decision. His 93-year old aunt, who Lewis considered a mother, drowned in a whirlpool at Easthaven Rehabilitation Care Center in 2002. The nursing home told Lewis that his aunt died peacefully in her sleep but it wasn’t until one month later he learned the truth — an employee had placed his wheelchair-bound aunt in a whirlpool unsupervised, even after Lewis told the staff he did not want her in the water. Sadly, actions that cause harm or even death to a nursing home resident can generate minimal response from the state.

In Louisiana, nursing homes are required to report all “suspicious deaths.” Per a NOLA.com article approximately 4,500 nursing home residents die every year in Louisiana and of 250 wrongful deaths reported from 1999-2005, only 15 of those deaths were labeled as “suspicious.” Steven Miles, a University of Minnesota professor who published a 2002 report called “Concealing Nursing Home Deaths,” said almost half of the reported cause of deaths in nursing homes across the nation is wrong. For example, back in 1998 in Arkansas one 78 year old nursing home resident

June 23, 2010

A General Overview of Negligence and Wrongful Death Claims

by Berniard Law Firm

Wrongful death. Negligence. We hear these terms thrown out all the time when we read the newspaper or watch TV. Both terms have a similar connotation. We know something “bad” happened to someone, something that should never have happened. However, most people don’t really know what these terms mean.

The legal concept of negligence means that someone has suffered physical and/or mental injuries caused by someone else being careless. Negligence is not derivative of an accident – someone else was not diligent and that failure to act properly was the cause of the injury. An example is featured on <a href="http://realestate.nola.com/?classification=real+estate&temp_type=search&tp=RE_nola&tl=42&guid=114135"NOLA.com when a family suffered damage to their home because of an inspector’s negligence in failing to report defects in the house.

A wrongful death claim arises when the victim died as a result of someone’s negligence. This type of claim, the victim’s surviving family is eligible for the amount of damages. This differs from a typical negligence claim because there, the actual victim is alive and able to receive the damages. Originally, a wrongful death claim was nonexistent because presumably the claim for damages died with the victim. Today, luckily, that is not the case and the grieving family is eligible for compensation for their loss.