Pain And Suffering Claims

April 8, 2019

Collision with Officer on Scenic Highway Leads Court to Evaluate Victim’s Damages Claims

police-car-1414442-1-1024x683 Car accidents can have long-lasting effects that are not immediately apparent at the time of the accident. Victims may initially report that they do not suffer from pain, only to be struck with it days, weeks, or even months later. This pain can have debilitating effects on one’s current and future career, as well as on one’s mental well-being and relationships with others. If a victim is not careful with the doctor he or she chooses or the actions he or she takes, a jury may dispute the damages (money) a victim may be entitled to. If a personal injury case makes it to court, it is best to reach the ideal verdict at the trial court level, rather than at the appeals level. The following case illustrate this.

Sheila Tate and her friend Joyce Lee were driving down an intersection on Scenic Highway and 68th Avenue, when Baton Rouge Police Officer Kenney (operating a vehicle owned by the City of Baton Rouge) collided with Tate’s vehicle. Tate’s child, Jordan, and Lee’s child, Imiricle, were also in the car during the collision. The collision resulted in multiple injuries.

The initial emergency room assessments for the Tate and Lee each reported no (or minimal) pain. Yet, Tate’s treatment involved a variety of doctors, where she underwent a series of medications and physical therapies before ultimately being given a “pass” by one of her last doctors to resume work. The same was said of Lee, who went through a series of doctors before she eventually stopped complaining of pain. Tate and Lee filed a lawsuit, and on behalf of their respective children, seeking damages stemming from the car collision.

March 29, 2019

Foster Child’s Appeal Denied Following Highway 724 Crash

by Berniard Law Firm

12-email-03-03-2019-picture Life deals some people a tough hand. For Geneva Fils, a Louisiana infant in the foster care system, a car crash and severe injuries followed by a lengthy lawsuit added to her list of problems.

The Louisiana Department of Social Services (now known as the Department of Children and Family Services) took Geneva away from her biological parents following her birth. Several months later, on March 22, 2006, Geneva was in a car along with her foster parent, Mayola Calais and the driver Jennifer Hayes. Charles Guidry was driving in the opposite direction when he crossed the centerline, striking Geneva’s vehicle head-on. Geneva, who purportedly was improperly restrained in the vehicle, suffered a fractured skull among other serious injuries. Geneva’s biological parents filed a lawsuit on behalf of themselves and Geneva against the driver Guidry, her foster parent Calais, the driver Hayes, the State of Louisiana through the Department of Children and Family Services, and their insurance companies.

This particular decision came from an appeal of a motion for partial summary judgment involving a Louisiana statute which limited damages to $500,000 for any division or agency of the Louisiana government held liable for personal injury damages. See LSA-R.S. 13:5106(B)(3)(c) (2017). Plaintiffs argued that the individual defendants do not enjoy the protection of the damages cap, because unlike the Department of Children and Family Services, they are not a “state agency.” See LSA-R.S. 13:5102 (2017). The judge granted the Department’s motion as it concerned the Department’s liability for its negligent actions, but denied the motion regarding the Department’s vicarious liability for the actions of its agents. Both the Department and the plaintiffs appealed.

March 28, 2019

Tangipahoa Parish Bar Fight Case Remanded Because of Inadmissible Evidence

by Berniard Law Firm

6-email-03-03-19-Picture One bad decision can lead to a huge legal headache. The combination of a chaotic atmosphere and alcohol makes bars the perfect storm for mistakes that can later lead to huge liability. In a recent case, a man who punched another patron at a Tangipahoa Parish bar appealed a default judgment that awarded the victim over $100,000 dollars for personal injury damages and medical expenses.

After Ryan Martinez walked onto the bar’s dance floor to break up a fight between his friend and Trevor Wilson, Wilson allegedly turned to Martinez and punched him in the face. Martinez alleged that this punch fractured his mandible; he had to have his mouth wired shut for eight weeks and he could not eat solid foods or work. This small scuffle on the dance floor led to life-changing consequences.

Martinez filed a lawsuit against Wilson, the bar, and their respective insurance companies. Summary judgment was filed by the bar and it’s insurance companies wherein they argued that there were no facts present that could show that they could be held liable in this lawsuit. Martinez was required to present proof to the contrary to defeat the summary judgment. The trial court dismissed the lawsuit against the bar because the court found that the bar was not liable under tort as a matter of law. Wilson never appeared to answer the lawsuit, so the trial court awarded a default judgment of over $100,000 dollars to Martinez after he filed a Motion for Default and went to a hearing on that Motion. See La. C.C. art. 1702 (2017). Even when there was no opponent because Wilson never appeared in court, Martinez still had to use admissible evidence to prove his injury.

March 27, 2019

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

by Berniard Law Firm

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.