Pain And Suffering Claims

March 27, 2019

The Wholly Obvious Hole: No Case for Injured Man in Metairie

hole-1576687-1-658x1024 Determining liability when someone is injured on someone else’s property is a complex endeavor. One of the major factors is determining whether the injury resulted from an unreasonably dangerous condition.

While a new In & Out Express Car Wash was being built in Metairie, LA, local business owner Mr. Frederick Helwig fell into a hole, sustaining injuries. Mr. Helwig was well aware of the construction going on, as he owned the business next door and had watched the construction progress for 6 months. When Mr. Helwig was injured, he was crossing the construction site at 10:30PM and did not use a flashlight or any sort of illumination to light his way.

The injured Mr. Frederick Helwig had the burden of proof to establish liability, that In & Out Express Car Wash (1) had a duty to conform conduct to a specific standard, (2) that the defendant failed to conform to the standard, (3) that the defendant’s conduct in failing to live up to the standard caused plaintiff’s injuries, (4) that the defendant’s conduct was a legal cause of plaintiff’s injuries, and (5) that the plaintiff has proof of the actual damages done to them. See Detraz v. Lee, 950 So. 2d 557, 565 (La. 2007). Specific to the case of a dangerous condition on land, the injured Mr. Helwig had to prove that the hole was in In & Out Express Car Wash’s control, it presented an unreasonable risk of harm, that the defendant knew or should have known of the unreasonable risk, and that the damage was caused by In & Out Express Car Wash. See Babino v. Jefferson Transit, 110 So. 3d 1123, 1126 (La. Ct. App. 2013). At the crux of this case, the injured Mr. Helwig had to prove that the danger, the hole in the ground, was not open and obvious. Even if the hole was unreasonably dangerous, in that it would injury anyone who fell in it, there will be no liability if the dangerous or defective condition is obvious and apparent. See Bufkin v. Felipe’s La., LLC, 171 So. 3d 851, 856 (La. 2014).

March 20, 2019

East Baton Rouge Customer Hit By Plastic Bin Loses Case Against Home Depot

by Berniard Law Firm

39-post-photo-1024x683 Most customers do not expect to be hurt by store merchandise when they go shopping. Yet, each year dozens of individuals are injured due to “falling merchandise.” The following Louisiana First Circuit Court of Appeal (“the Court”) case is a perfect example of what happens when an individual seeks legal action for being injured by a store’s falling merchandise.

Darry Hughes and his co-worker sought to purchase a plastic storage bin from Home Depot for their East Baton Rouge office. Inside the store, Hughes was injured when he removed a plastic bin from a shelf using both hands and was unable to stop another bin behind it from falling onto his face. Hughes brought a lawsuit against Home Depot U.S.A. (“Home Depot”) for the injuries he sustained from the alleged incident on the grounds that the bin was unstably stored.

Home Depot motioned the trial court for summary judgment, claiming that Hughes could not prove he did not cause the bin to fall upon himself and that he lacked evidence to show Home Depot was negligent or caused the injury he received. To show their purported innocence, Home Depot called in a twelve-year employee of the company, who testified that in all of his time there he had never heard of or seen an incident report where a product had fallen from a shelf.

March 19, 2019

Man’s Lawsuit Fails After Slipping on Wet Rug in West Baton Rouge Apartments

by Berniard Law Firm

33-post-photo-1024x683 Rain and a slick, tiled entryway are typically a bad combination. A recent Louisiana slip and fall case involved this exact scenario.

It had been steadily raining all day, and Allen Court Apartments resident James King left the building at night to go get dinner. Approximately a half hour later, King slipped and fell on the entryway of his apartment building, breaking his leg. King subsequently filed a lawsuit against the apartment building, the building’s insurance company, and the property managers for damages due to his injury.

Denying liability for King’s injury, the defendants motioned for summary judgment on the grounds that there was no defect in the apartment building King could point to and that he lacked causal connection between the defect and his injuries. The trial court granted the summary judgment motion stating that there was no genuine issue of material fact. King’s lawsuit was dismissed with prejudice, meaning the case was permanently over and King couldn’t bring it back into court. King appealed the trial court’s decision.

April 5, 2018

Nose Biter Found Liable in Road Rage Personal Injury Case

by Berniard Law Firm

horse-nose-1575359-1024x681 Think before you act. We have all heard this advice. But, thinking before you act can be difficult. Sometimes, emotions and the heat of the moment prompt you to react before you think. A common example of this occurrence is in road rage altercations. It is easy to get upset when you get cut off or a person pulls out in front of you. But the legal ramifications of acting on those emotions can be dire. A recent case out of the First Circuit Court of Appeal for the State of Louisiana illustrates one type of legal consequence that could happen when emotion turns to violence.

It all began in Ascension Parish when Clifford Barr, driving his pickup truck, attempted to make a left turn into a parking lot. Mr. Barr’s left turn was blocked by Ray Schexnayder, who was trying to make a left turn out of the parking lot’s entrance. As Mr. Barr attempt to make the left hand turn into the parking lot, Mr. Schexnayder simultaneously exited the parking lot, turning left as well. Both vehicles narrowly escaped hitting each other. After the near miss, both Mr. Barr and Mr. Schexnayder started exchanging words. This conversation quickly became heated. Mr. Barr, after exchanging words, continued into the parking lot. Mr. Schexnayder followed Mr. Barr into the parking lot. While in the parking lot, Mr. Schexnayder exited his pickup truck, proceeded to Mr. Barr’s vehicle, and then stuck his head through the open window of Mr. Barr’s vehicle. At this point, the facts are unclear. Both Mr. Barr and Mr. Schexnayder claim that the other person threw a punch. Regardless of who punched first, a fight ensued. In the fight, Mr. Barr sustained a nose injury when Mr. Schexnayder bit Mr. Barr on the nose.

Mr. Barr filed a lawsuit against Mr. Schexnayder for damages he sustained in the parking lot altercation. At trial, the trial court awarded damages in the amount of $25,005.00 to Mr. Barr. The trial court found Mr. Barr to be a more credible witness and believed Mr. Barr’s story that Mr. Schexnayder threw the first punch. Mr. Schexnayder, disagreeing with the trial courts determination, appealed its decision.

February 9, 2018

Louisiana Workers’ Compensation Benefits Not Extended to Resident Employed in Arkansas

by Berniard Law Firm

entering-arkansas-1215127-1024x671 Workers’ compensation provides an avenue for workers injured on the job to receive the compensation a worker deserves. But what happens when a resident of one state is injured while working for a company in another state? A recent case out of the Second Circuit Court of Appeal for Louisiana addressed this issue when a Monroe, Louisiana worker, working for an Arkansas company, was injured in Mississippi.

Levi Williams was injured in Mississippi while driving a truck for Morris Transportation, Inc. (“Morris Transportation”), an Arkansas company. After the accident, Mr. Williams applied for and was granted, workers’ compensation benefits in Arkansas. Those benefits went away after Morris Transportation released Mr. Williams from work. Subsequently, Mr. Williams sought workers’ compensation benefits in Louisiana. Morris Transportation contested Mr. Williams’s request and the matter went before a Workers’ Compensation Judge (“WCJ”). At a hearing, the WCJ ruled in favor of Mr. Williams, holding that Mr. Williams was entitled to Louisiana workers’ compensation benefits. Under Louisiana law, an injured employee is entitled to workers’ compensation when injured while working outside the state if the employment contract is made in Louisiana. La. R.S. 23:1035.1 (2016). The WCJ found that the contract, in this case, was made in Louisiana and therefore, Mr. Williams was entitled to Louisiana workers’ compensation benefits. Morris Transportation, disagreeing with the WCJ’s assessment, appealed the decision.

On appeal, the Second Circuit Court of Appeal examined whether the employment contract between Mr. Williams occurred in Louisiana. Both Mr. Williams and Morris Transportation dispute the facts surrounding the formation of the employment contract According to Mr. Williams, he previously worked for Morris Transportation, but left to work for another employer. A little while after Mr. Williams left Morris Transportation, he called Morris Transportation and was told by an employee that he could come back and work for his former employer. Mr. Williams claimed that during this call he was told by by Morris Transportation that he could “come back.” Mr. Williams testified that the day after the phone call he drove, signed a driver qualification form, and began to working. Morris Transportation, conversely, argued that the phone conversation between Mr. Williams and itself did not form a contract. It claimed that the phone conversation could not constitute an employment contract because Mr. Williams had not gone through the employment process required before Morris Transportation hires an employee.

February 5, 2018

Monroe City Trial Court’s Award for Damages in Car Accident Case Affirmed

by Berniard Law Firm

winter-road-1347950-1024x768 We all make mistakes, and, if lucky, are presented with the opportunity to fix them. The same principle can be said for an error in a money damage determination. When a party to a lawsuit believes that the jury or trial court erred in its damage award decision, the party has the ability to appeal. A recent court case out of the Second Circuit Court of Appeal for Louisiana discusses the requirements that are needed to overturn a money damage determination.

The case involves a car accident involving Holly Swayze. Ms. Swayze suffered multiple injuries from the accident and accumulated a sizable amount of medical bills. As a result of the injuries and medical bills, Ms. Swayze filed a lawsuit. At trial, Ms. Swayze testified that prior to the accident she lived without physical limitations. But after the accident, she started experiencing neck and back pain. To alleviate her pain, Ms. Swayze tried self-help and physical therapy, but those treatments only mitigated, not solved, her pain problem. This attempt to alleviate her pain cost Ms. Swayze $12,700.04 in medical bills.

Ms. Swayze’s primary physician, Dr. Coleman, also testified at trial. Dr. Coleman testified that he had been treating Ms. Swayze for ten to twelve years and had no records of her complaining about neck and back pain. He also recalled that Ms. Swayze complained of numbness in her right arm after the accident. Dr. Coleman also testified that Ms. Swayze did suffer from a genetic bone disease and that Ms. Swayze took medication for this condition. Dr. Coleman further explained that those who suffer from this condition normally do not experience any symptoms until they endure an aggravating injury.

January 29, 2018

Court Affirms Decision for Employer to Pay Injured Employee’s Surgery under Longshore and Harbor Workers’ Compensation Act

by Berniard Law Firm

container-barge-1238820-1024x321 The fate of a claim brought under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) is often determined based upon the weight the Administrative Law Judge (“ALJ”) gives certain evidence. But how should the ALJ weigh conflicting evidence from different sources? This question was recently addressed by the United States Fifth Circuit Court of Appeals in Petron Industries Inc. v. Courville.

Ryan Courville suffered injuries to his thoracic spine while lifting equipment aboard a barge. Because of how Mr. Courville sustained his injury, he was eligible for compensation under the LHWCA. Soon after the injury, Mr. Courville sought medical treatment from multiple different doctors in an effort to alleviate the pain caused by his spinal injury. His initial treating physician recommended physical therapy but did not think surgery was necessary at the time. Mr. Courville, because of his continued pain, sought a second opinion. Mr. Courville’s second physician recommended more physical therapy and prescription medication. Still experiencing pain, Mr. Courville sought a third opinion. Mr. Courville’s third physician, a pain management specialist, tried additional physical therapy, which proved equally unsuccessful. Mr. Courville was then referred back to his second physician who ultimately recommended surgery.

Under the LHWCA, “[o]nce an employee establishes that his injury was work-related, he is entitled to all reasonable and necessary medical expenses related to that injury.” Amerada Hess Corp. v. Director, 543 F.3d 755, 761 (5th Cir. 2008) (citing 33 U.S.C.A. § 907 (2015)). Mr. Courville asked for Petron Industries and American Home Insurance’s (collectively, “the Petitioners”) to pay for the surgery pursuant to the LHWCA. Disagreeing that surgery was necessary, the Petitioners sought additional medical opinions. The Petitioners’ first physician opined that it was “more likely than not” that surgery would be needed. The Petitioners’ second physician stated that surgery would not be needed and that Mr. Courville could return to a “medium duty” job.

January 26, 2018

Can a Trial Court Disregard the Jury’s Determination of Fault in a Foot Injury Case?

by Berniard Law Firm

tenis-1571373-1920x1440-1024x768 When bringing a personal injury lawsuit a plaintiff must prove that the defendant in the lawsuit caused the injury. Often, when an injury involves two parties, the question of who caused the injury has a relatively straightforward answer. However, problems arise when the circumstances surrounding the injury involve multiple parties. A recent case out of the Louisiana First Circuit Court of Appeal illustrates the complexity of proving who caused an injury when multiple parties are involved.

Plaintiff William Bourg, an employee of Shamrock Management LLC (“Shamrock”), a Houma, Louisiana company, was injured while helping move an aluminum generator cover. The cover, which weighed 2800 pounds, was delivered to Shamrock’s shop by Cajun Cutters, Inc (“Cajun Cutters”). Mr. Bourg and a Cajun Cutter’s employee, Russell Felio, attempted to move the generator cover into Shamrock’s shop. To facilitate the delivery of the generator cover, Mr. Felio decided to use a large forklift that he was unauthorized to use. While using the forklift, Mr. Felio accidentally flipped the generator cover on its side, which fell on Mr. Bourg’s left foot, crushing it. The injury required Mr. Bourg to undergo two surgeries.

Mr. Bourg sued both Cajun Cutters and Mr. Felio for his foot injury. In a personal injury lawsuit, the jury is required to determine who is at fault for the plaintiff’s injury and allocate a percentage of fault onto each party member, including the plaintiff. In Mr. Bourg’s case, the jury decided that Mr. Bourg and Shamrock were 90% at fault for the accident and that Cajun Cutters and Mr. Felio were 10% at fault. Mr. Bourg filed a motion for a judgment notwithstanding the verdict (“JNOV”). A JNOV is a procedural device where the trial court may correct a jury verdict by modifying the jury’s findings of fault or damages, or both. La. C.C.P. art. 1811 (2016). The trial court granted the JNOV and reallocated fault 50% to Bourg and Shamrock and 50% to Cajun Cutters and Mr. Felio. Cajun Cutters and Mr. Felio appealed the trial court’s decision.

January 17, 2018

Workers’ Compensation is a Statutory Employee’s Exclusive Remedy for Injuries

by Berniard Law Firm

loadin-the-lumber-1250972-1024x736 Direct employment is the traditional and most common employer-employee relationship. But what happens when a statutory employee is injured on a work site? A statutory employee is an employee as defined by a state’s statute. While the employer is not the direct employer, the employer becomes the employer of record by force of law. Any worker injured while in the course and scope of employment for a statutory employer must be extended the same protection and benefits as those owed to the employees of the direct employer. This slip-and-fall accident case out of Tangipahoa Parish further describes the rights of Louisiana’s statutory employees in workers’ compensation cases.

Devon Energy Production Company, L.P. (“Devon”) was involved in the drilling of a well in Kentwood, Louisiana. Devon entered into an agreement with Asset Security for it to provide security services for Devon at the drilling site. The agreement provided that Devon was to be considered the statutory employer of Asset Security’s employees for purposes of La. R.S. 23:1061(A)(3) and Devon was entitled to the Louisiana protections that are afforded a statutory employer. On July 16, 2012, Ms. Shannon Robinson Kazerooni slipped and fell from the stairs when exiting the mobile trailer at the drilling site. Ms. Kazerooni was a reserve deputy with the Tangipahoa Parish Sheriff’s Office, which had an agreement with Asset Security to provide police officers for security assignments.

Ms. Kazerooni filed a lawsuit against Devon, alleging that the accident and her resulting injuries were caused by Devon’s negligence, and Monster Rentals, LLC, (“Monster”), alleging that Monster provided a defective trailer. Devon asserted the affirmative defense that Devon was the statutory employer of Ms. Kazerooni and that Ms. Kazerooni’s exclusive remedy was workers’ compensation benefits pursuant to LSA-R.S. 23:1061. Devon filed a motion for summary judgment, arguing that Ms. Kazerooni was a statutory employee pursuant to the agreement between Devon and Asset Security and that Devon was immune from suit for tort damages because Ms. Kazerooni’s exclusive remedy was workers’ compensation benefits from Devon. On October 14, 2015, the trial court granted Devon’s motion for summary judgment. Ms. Kazerooni appealed the trial court’s decision to the Louisiana First Circuit Court of Appeal, arguing that there was an unresolved genuine issue of material fact as to whether she was a statutory employee because she was merely a volunteer.

January 14, 2018

Defendant Bites Plaintiff’s Nose in Fit of Road Rage on Louisiana Highway

by Berniard Law Firm

nose-1552298-1024x893 What happens when a person injures another person? A tort is a civil wrong that causes another person to suffer loss or harm that results in legal liability for the person who commits the tortious act. The person who commits the act is called a tortfeasor. An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. This case out of Ascension Parish illustrates the plaintiff’s burden of proof in a tort action.

On August 13, 2012, Mr. Clifford Barr was on his way to Rossi’s Auto Service (“Rossi’s”), driving southbound on La. Hwy 431. When Mr. Barr was about to turn into Rossi’s parking lot, he noticed another vehicle blocking the entrance. Mr. Barr waited to see if the driver was going to exit. When the vehicle did not move, Mr. Barr proceeded to drive into the parking lot. At the same time, the driver of the other vehicle, Mr. Joseph Schexnayder, pulled out of the parking lot. The two vehicles almost collided. Mr. Schexnayder opened his door and attempted to exit his vehicle, but the vehicles were too close to one another. Mr. Schexnayder reversed his vehicle into Rossi’s parking lot and Mr. Barr proceeded forward into the parking lot. Mr. Schexnayder got out of his vehicle, walked toward Mr. Barr’s vehicle, and stuck his head through Mr. Barr’s rolled-down window. While there is disagreement over which party through the first punch, it was uncontested that Mr. Barr grabbed Mr. Schexnayder and that Mr. Schexnadyer bit Mr. Barr’s nose, requiring medical treatment.

On July 15, 2013, Mr. Barr filed a lawsuit against Mr. Schexnadyer for damages. The case proceeded to trial. On October 30, 2014, the trial court issued a judgment finding that Mr. Schexnayder was the aggressor and that Mr. Barr was not at fault. More specifically the court found that Mr. Barr was very credible and that Mr. Schexnayder was the sole cause of the incident. Mr. Barr was awarded $25,005 in damages: $12,750 for physical and mental pain and suffering; $255 for past medical expenses; and $12,000 for future medical expenses.