Articles Posted in Pain And Suffering Claims

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carpentry-1-1241107-768x1024Accidents frequently occur in construction zones and they may be the fault of the injured party or someone else involved in the renovation site. Courts are often tasked with deciding whether the injured person is responsible for his or her own injury or if a different party is at fault. A recent case in Metairie highlights the complexities of identifying the responsible party.

Peter Dimitri and his company, Beck Housing, LLC, hired Patrick Chaplain to perform carpentry work during a home renovation. Mr. Chaplain used a table saw, owned by Mr. Dimitri, during the process of his work, but Mr. Chaplain did not use the saw’s safety guard. The saw went rogue and struck Mr. Chaplain’s hand. As a result, he lost several fingers.

Mr. Chaplain filed a lawsuit against Mr. Dimitri to recover for his injuries. He believed Mr. Dimitri was responsible because he owned the saw. The Trial Court disagreed. The Trial Court concluded, without citing many reasons, that Mr. Chaplain could not bring his claim and granted Mr. Dimitri summary judgment, which allows a court to enter a judgment in favor of one party over the other without entering into a full trial. Mr. Chaplain needed to present evidence that “showed a genuine issue of material facts” in order for the lawsuit to move on to a trial, which the Trial Court did not believe he did sufficiently. See La.C.C.P arts. 966 and 967.

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bus-wreck-1390308-1024x768In Louisiana, a party is responsible for the full extent of injuries he or she causes to another. Lawsuits stemming from these incidents usually arise over which party is more at fault or if any of the injuries were actually caused by the event at issue. Whether the party at fault has to pay the undisputed medical expenses is rarely at the center of these disputes, however, the following case from St. Bernard Parish, details why an injured party had to bring that very issue to appeal.

In 2010, Alfred Ronsonette, who was disabled and used a wheelchair, boarded a St. Bernard Urban Rapid Transit bus. Mr. Ronsonette placed himself in an open space on the bus, but the bus driver, Edith Cantrell, did not tie down his wheelchair, as is standard. The bus made a right turn, and the wheelchair fell over and took Mr. Ronsonette with it. He was immediately taken to the emergency room.

Mr. Ronsonette, and his wife, Darrall Ronsonette, filed a lawsuit against the St. Bernard Parish Government (St. Bernard). The trial court found St. Bernard 100 percent at fault for the accident, but only awarded Mr. Ronsonette $10,155.76 in general damages and medical expenses. The court did not award Mrs. Ronsonette anything in loss of consortium damages. The Ronsonettes appealed this decision based on all three of these awards.

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rock-climbing-1-1357430-683x1024Lest anyone think college is all about classrooms and books, many universities today offer a panoply of extra curricular amenities for students to enjoy. One of the main attractions is student recreation centers. At Louisiana State University (LSU), the University Student Recreation Center (UREC) is a place where students can go with friends and guests to exercise and participate in recreational activities such as indoor rock wall climbing.

On the evening of December 3, 2008, LSU Senior Brandy Fecke and a fellow classmate visited the indoor rock climbing facility at the UREC to complete a required assignment for an Outdoor Living Skills Activity course. Ms. Fecke signed a Rock Climbing Wall Participation Agreement and stated that she had previous rock wall climbing experience. Ms. Fecke indicated that she wanted to climb the easiest wall, which was a wall that did not require her to wear a harness or ropes. Ms. Fecke’s classmate was required to stand behind her and act as a spotter in case Ms. Fecke needed assistance.

After Ms. Fecke and her classmate received instructions and a climbing demonstration, Ms. Fecke began climbing up the wall. Upon reaching the top of the wall, Ms. Fecke fell thirteen feet to the ground where she sustained multiple fractures to her left ankle. Ms. Fecke’s injury was so severe that she underwent three major surgeries and required additional surgeries at the time of the lawsuit, including either a permanent ankle fusion or an ankle replacement. Ms. Fecke and her parents, Stephen and Karen Fecke, sued the LSU Board of Supervisors (Board) for damages Ms. Fecke sustained as a result of the accident. A jury returned a verdict in favor of Ms. Fecke and her parents and the Trial Court adjusted the award amount to $1.4 million. The Board appealed the Trial Court’s judgment and award to the Fecke family.

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graves-1-1504523-1024x686Facts are one of the foundations of a successful lawsuit. In an effort to thwart a plaintiff’s chance at relief, a defendant may file an exception of no cause of action in response to a plaintiff’s complaint. An exception of no cause of action alleges that the plaintiff’s lawsuit has no legal validity, and therefore, the plaintiff has no claim. The following case out of Orleans Parish illustrates such an objection and the importance of facts, especially when those facts validate a claim that could be barred by immunity.

In 2013, Patrick and Crystal Simmons’ children were placed in foster care. In April of that same year, the State of Louisiana notified Mr. and Mrs. Simmons (Plaintiffs) that their son Eli had been transported to a Hospital in New Orleans. Eli died shortly after being admitted, prompting Plaintiffs to file a lawsuit asserting gross and/or intentional negligence by the coroner’s office and intentional infliction of emotional distress. See Hanks v. Entergy Corp., 944 So.2d 564 (La. 2006). Plaintiffs alleged that the coroner’s office received Eli’s body, but failed to perform an autopsy to determine the child’s cause of death. Furthermore, in an amendment to their initial complaint, Plaintiffs averred that their son’s body was misplaced by the coroner’s office because the coroner’s office could not find the body of the child until many months after the child passed. When the child’s body was finally recovered, the coroner’s office, without notifying the family, disposed of the body by cremation and buried the remains in an undisclosed burial location.

In response to Plaintiffs’ cause of action, the coroner filed motions with the court seeking to dismiss the case. The Trial Court granted Defendant’s motions, reasoning that statutory duties imposed on Defendant are for the benefit of the public, not for the private individual. As such, the Trial Court held that Plaintiffs did not have a private cause of action and that the coroner’s office was entitled to statutorily limited immunity from Plaintiffs’ claims.

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chairs-2-1489343-1024x768In Louisiana, the law allows a person to seek financial compensation against another person who has caused his or her injuries or failed to prevent the injuries if such a duty existed. A person has a responsibility not to harm others by their actions or with things in their possession. A Louisiana landlord has a special duty to his or her tenants to provide a safe building and will be held responsible if a tenant is injured as a result of the Landlord’s failure to repair a defect in the building that he or she knew about or should have known about. The following case illustrates some of these issues.

Jennifer Hooper was injured on the porch of her rented apartment when her crutches got stuck in a small, preexisting hole. As it turns out, the floorboards were rotten and Ms. Hooper fell right through the porch, fracturing her right femoral neck. Ms. Hooper sued her landlords, Val and Mary Brown, and their insurance company, Encompass Property and Casualty Company. The Browns attempted to terminate the case before it started by filing what is called a Motion for Summary Judgment. By filing this motion, the Browns asked the Trial Court to decide the case in their favor, without going through the formal development of the case. This would have ended the case before a jury had the opportunity to hear it. The Trial Court denied the motion, however, because there was a dispute as to whether the hole that Ms. Hooper stepped in was “open and obvious to all.” The Browns appealed the denial of the motion to the Louisiana Fourth Circuit Court of Appeal.

Ms. Hooper signed an apartment lease with the Browns in January 2011 and renewed the lease in 2012. Upon moving into the apartment, the Browns alerted Ms. Hooper to the hole in one of the porch floor boards. Several times over the course of her tenancy, the Browns promised to fix the hole but never did. Ms. Hooper argued that the Browns were responsible for her injuries by failing to adequately inspect and maintain the premises and warn her of the unreasonably dangerous condition. The Browns averred that the hole in the porch floor was open and obvious to all and thus, they had no duty to warn Ms. Hooper of the hole. Effectively, the Browns argued that Ms. Hooper should have seen the hole and avoided it all on her own.

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sidewalk-cross-1177206-1024x681Each year, thousands of people suffer from slip and fall accidents. From a legal perspective, it can be difficult to determine who, if anyone, is at fault. For example, in some slip and fall cases, a property owner can be held liable for the other party’s injuries. Property owners owe a duty of care to persons who use their premises. Owners are expected to keep the grounds in a reasonably safe condition.

The following case provides a good illustration of some of the issues that can arise when litigating a slip and fall accident. Reba Campbell suffered injuries after she slipped and fell on a mildewed area of sidewalk adjacent to the Evangeline Parish Medicaid Office. Mrs. Campbell and her husband (Plaintiffs) filed suit against the Evangeline Parish Police Jury, as owners of the Medicaid Office building, and the State of Louisiana, Department of Health and Hospitals, as lessee of the building. The State interjected a cross-claim against the Police Jury that called into question their liability as leaseholders. The State believed that the Police Jury should be held liable because it owned the property on which the hospital was located. The Police Jury countered that the State had the responsibility for maintaining the sidewalks in front of the building.

Plaintiffs sought a declaratory judgment from the Trial Court and the Trial Court held that the State was liable because it failed to put the Police Jury on notice of the problems with the sidewalk. The Trial Court granted the Police Jury’s oral motion for judgment and dismissed the Police Jury from the lawsuit.

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planning-for-construction-1234527-731x1024Have you ever suffered personal injury from an accident while traveling to or from work? Generally, pursuant to the Louisiana Workers’ Compensation Act employers are not responsible for injuries sustained by employees while traveling to or from work because these injuries are not considered to have occurred within the course of employment. This is known as the “going-and-coming” rule, under which the employment relationship is considered suspended from the time the employee leaves his or her workplace. However, there are certain exceptions to this rule that allow a claimant to recover even though the injury was sustained while traveling to or from work. The following case illustrates one such exception: if the accident occurred on the employer’s premises, the employee may be covered under workers’ compensation laws.

Arline Theriot was employed by Full Service Systems Corporation as a porter at a casino in Lake Charles, Louisiana. On December 25, 2012, Arline was on her way to work. Shortly before her shift was about to begin she was searching for a parking space in one of the casino parking lots when she was struck by a vehicle driven by another casino employee. Arline sustained an injury to her neck as a result of the accident and subsequently filed a Disputed Claim for Compensation with the Office of Workers’ Compensation.

Arline alleged that her employer had not authorized a neck surgery that was recommended by Dr. Gregory Rubino and sought penalties and attorney fees for her employer’s rejection of the neck surgery. The Workers’ Compensation Judge (WCJ) decided in favor of Arline, finding that her injury occurred in the course of her employment at the time of the accident, that the neck surgery recommended by Dr. Gregory Rubino was reasonable and necessary, and that the need for the neck surgery was causally related to the workplace accident. On appeal, the sole legal issue was whether Arline’s accident arose out of and occurred in the course of her employment. Full Service Systems disputed the WCJ’s findings and argued that her claims were not recoverable because she was on her way to work.

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electrical-towers-1230495-1024x683When an employee is injured on the job they often have extensive medical bills and less money to pay those bills because they may not be able to work. While workman’s compensation, insurance, and disability benefits are available to cover those costs, there is another form of compensation available to those who are injured as a result of negligence or other bad acts. The injured party can file a lawsuit against those responsible. Of course, there are often questions surrounding who is in fact legally responsible, e.g., for maintenance of a job site, and it takes an experienced lawyer to navigate such complicated legal questions.

Glenn Chesney pursued the latter route by filing a lawsuit after he was injured by coming into contact with an uninsulated, sagging power line at the Magnolia landfill in Ouachita Parish, Louisiana. Glenn was driving his truck through the landfill facility to weigh and unload the removable trash container on his flatbed truck. A power outage created a backlog of trucks waiting for the scale to come back online. Glenn, in the meantime, decided to take the tarp off of his load so that he could unload faster when he got to the front of the line. The truck Glenn was driving had mechanical arms that could raise to a maximum height of approximately 17 feet off the ground. Ordinarily, Glenn used the mechanical arms of the truck to take the tarp off of the trash container so it could be unloaded. However, this time when those arms raised they came into contact with the sagging and uninsulated power line. By this time, the power had been restored to the landfill facility and Glenn was injured as a result. The main issue that Glenn had to deal with on his latest appeal was whether the electrical contractor, Copeland Electric Company, could be held liable for failing to maintain the electrical line.

Copeland originally installed the electrical line in 1994 and the accident that injured Glenn Chesney occurred 16 years later on August 13th 2010. Because of the length of time between the installation and the incident, the lawyers for Copeland attempted to have the action dismissed under La. R.S. 9:2772. This Louisiana statute provides that deficiencies in immovables from construction, surveying, design, or supervision have a 10-year peremptive period for actions. That means that even if Copeland was negligent in constructing the electrical line, the Glenn had no cause of action because the time period for bringing such action lapsed. See Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009). These time limits on when you can file a lawsuit are an attempt by the legislators to strike a balance between vindicating victims of past injustices and flooding the courts with untimely lawsuits based on stale evidence, which makes a court’s job of assessing the facts of a case much more difficult.

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injury-1432459-1024x683One of the biggest fears of any parent is the sudden and unexpected death of your spouse, leaving only you to raise and provide for your children. The thought alone can be crippling. When tragedy strikes, one of the only comforts a surviving spouse can find is believing that they will receive financial compensation to relieve the monetary burden left behind by the loss of a spouse who provided a steady source of income. At the center of every wrongful death claim is the issue of getting the surviving family member relief to overcome the hardship of carrying on without their spouse or parent who helped support them. For individuals killed on the job, the Louisiana Workers’ Compensation Act (the “Act”) provides an avenue for compensation for surviving family members. Under the Act, an employee injured in an accident during the course and scope of the employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer and may not sue his employer in tort. See La. R.S. 23:1032.

Likewise, when an employee is killed during the course and scope of their employment, surviving family members expect compensation from their loved one’s employer. Unfortunately, many companies elect to deny responsibility or claim to be free from fault rather than help the family. Moreover, oftentimes workers’ compensation benefits do not adequately compensate for the loss of a loved one. While these workers’ compensation benefits may be subpar, they are at least guaranteed to the surviving family members.

Other companies that may be responsible for a workplace injury may attempt to label itself as an employer of the injured person in order to protect itself from a tort lawsuit by using the Workers’ Compensation Act as a shield. Whenever this happens, it is imperative that surviving family members have adequate counsel to identify the scheme these companies are attempting to carry out. A recent case out of New Orleans, Louisiana highlights the struggle that grieving family members face when attempting to receive compensation from the companies responsible for a workplace fatality.

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power-2-1315569-683x1024When a person is injured, a countdown begins. If you think you have a lawsuit, you need to file that lawsuit within a certain amount of time or else you will lose the right to that claim. Similar to what some states would call a statute of limitations, Louisiana uses something called “liberative prescription” or just “prescription.”  Under this legal doctrine, after a certain amount of time has passed, a plaintiff can no longer bring their claim.  The claim is treated as if it never came into being. In some cases, this period is one year. See La. C.C. art. 3492.  A defendant can avoid a claim that has passed this period under the defense of peremptory exception, which dismisses a claim for being untimely filed. For some plaintiffs, there is relief in the form of the legal doctrine contra non valentum.  Under this idea, the time period to bring a claim does not begin on the day the injury occurred but rather when the person realizes what has happened with enough certainty to file a lawsuit. See Bailey v. Khoury, 891 So.2d 1268 (La. 2005). Prescription exists to keep parties from being surprised by claims from events that have happened years in the past.  Contra non valentum likely exists to help people who have been prevented in some way from discovering exactly who or what has caused their injury.

The Louisiana Fifth Circuit Court of Appeal recently applied these legal theories on a work-related illness. Natividad Tenorio worked from 1981 to 1988 in his employer’s (Alpha Technical Service) yard removing radioactive substances (oilfield-generated radiation or OGR) from oil and gas pipes.  In November  2009, Mr. Tenorio was diagnosed with throat cancer.  In 2013, a former co-worker informed Mr. Tenorio about the dangerous airborne radiation to which the workers had been exposed during that period of years. One year later, Mr. Tenorio brought a lawsuit against numerous gas and oil companies that had used the radiation-generating pipes. The Defendants asserted their affirmative defense of peremptory exception under the notion that the time period for prescription had passed.  The Trial Court sided with the Defendants and dismissed the lawsuit; Mr. Tenorio appealed.

On appeal, Mr. Tenorio argued that the Trial Court should not have deemed his lawsuit “prescribed” after only one year.  He claimed that the grace period should have been extended under the theory of contra non valentum since he did not discover that his work put him at risk of cancer until four years after his diagnosis.  Defendants argued that Mr. Tenorio should have known the cause within the year following his diagnosis and that he did not show any evidence of anything that may have prevented him from discovering that the radiation from his former job led to his cancer.  The Court of Appeal noted that under these circumstances, the burden of proving that his claim was not prescribed rested with Mr. Tenorio.  As such, he offered evidence that showed he only found out about the radiation in 2013.   However, the Court of Appeal found for the Defendants, reasoning that when a person fails to realize that he or she has a potential claim through only his or her own neglect or ignorance, that person should not be granted a grace period.  Moreover, a year-long prescription period in a personal injury case such as this one is deemed to begin when a plaintiff knows or should know the relevant facts.  The Court of Appeal believed that Mr. Tenorio should have researched possible causes of his cancer immediately after the diagnosis in order to be able to begin his lawsuit within that first year. But because he did not, the Court of Appeal found that Mr. Tenorio was unreasonably late in filing his lawsuit and the Trial Court’s dismissal of his claim was upheld.

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