Pain And Suffering Claims

September 1, 2023

Apartment Fire Lawsuit Dismissed Due to Smoke Alarm Evidence

fire_firefighters_fire_truck-1024x683 If you and your family members are injured in an apartment fire, you might think you would be able to recover for your injuries from the apartment owners. However, the law may only allow you to recover for your damages with sufficient evidence to support your claim.

Afrah Qasem and her daughter, Asary Shotah, tried to escape from a fire in their apartment by jumping out of the window of their apartment on the second floor. They filed a lawsuit against Acadian Apartments for the injuries they suffered. Qasem and her daughter claimed they had been injured due to Acadian’s negligence. They claimed Acadian did not have sufficient policies and procedures in place, did not have working fire alarms or fire extinguishers, and had insufficiently marked emergency exits.

Acadian responded, claiming that Qasem and her daughter had caused the fire by using a candle or other similar device and did not extinguish the fire. Acadian wanted $50,000 in damages for the fire. Acadian filed a summary judgment motion under La. C.C.P. 966, claiming Qasem and her daughter could not prove Acadian had caused the fire and was liable for their damages. The trial court granted Acadian’s summary judgment motion. Qasem and her daughter appealed, claiming the trial court erred in granting Acadian’s summary judgment motion.

August 31, 2023

Judgment In Lawsuit From Garage Sale Injury Lacked Necessary Decretal Language

by Berniard Law Firm

2015_garage_sale_002-1024x683 Depending on the outcome of a trial, when the jury renders its verdict, you might be excited or sad. No matter how you feel, you must review the trial court’s judgment to ensure it is sufficiently precise and definite to meet the requirements for a final judgment.

Charmane Manchester was injured while attending a garage sale held on property owned by Michael and Heather Watson. She claimed a wood post supporting the carport fell and hit her. She filed a lawsuit against the Watsons and their homeowners’ insurer, ANPAC Louisiana.

In her lawsuit, Manchester claimed the Watsons maintained an unreasonably dangerous condition on their property, had not adequately warned people of the condition, did not properly inspect the wood posts, and held a garage sale in an unsafe area. The lawsuit proceeded to a jury trial. At trial, the jury found the Watsons owned and had custody of the wooden post that fell on Manchester at the garage sale. However, the jury did not find sufficient evidence that the wooden post was defective and an unreasonable risk of harm when the accident occurred.

August 30, 2023

Factual Disputes About Company’s Procedures Preclude Summary Judgment in Slip and Fall Lawsuit

by Berniard Law Firm

spur_gasoline_station-1024x681 If you slip and fall at a car dealership because of wet floors, you might think you have a slam dunk case. However, if the condition that caused your fall might be considered open and obvious, you could face an uphill battle.

Anna Landry took her vehicle to Leson Chevrolet in Harvey, Louisiana, to receive regular service. On her drive there, it started raining. An employee told her to park her car in one of the four service bays. When Landry got out of her car, she stepped onto the floor and immediately fell. She subsequently went to the emergency room, where she learned she had broken her tailbone. Landry filed a lawsuit against Leson, claiming she fell because of their slick and wet floors. She said the excess water and puddles were a hazardous condition, so she was entitled to damages for negligence and premises liability.

Leson filed a summary judgment motion, claiming they were not liable for Landry’s injuries under La. R.S. 9:2800.6 because any water was an open and obvious condition. Leson also argued Landry did not have any evidence that Leson had constructive or actual notice of the allegedly hazardous condition. Landry argued summary judgment was inappropriate because there were genuine issues of material fact. For example, testimony from Leson employees indicated Leson did not have any policies in place for maintaining the floor of their service bays and did not warn customers of potentially hazardous conditions. The trial court granted Leson’s summary judgment motion. Landry appealed.

August 29, 2023

The Consequences of Lying in A Louisiana Workers’ Compensation Claim

by Berniard Law Firm

lying_promises_deception_dishonesty-1024x768 What are the consequences of lying in a workers’ compensation claim? They can be harsh, as shown in the following lawsuit. Betty Reeder, a Certified Nursing Assistant (CNA) at Hardtner Medical Center, found herself embroiled in a legal battle after suffering an injury on the job. This article examines the details of the lawsuit, delves into the relevant Louisiana workers’ compensation law, and analyses the Appeals Court decision that shaped the outcome.

The chain of events leading to the lawsuit began in January 2013, when Betty Reeder tripped and fell on a wheelchair while performing her duties as a CNA. Following the accident, she received financial and medical support from the Louisiana Hospital Association Workers’ Compensation Interlocal Risk Management Agency through its agent, HSLI. She received weekly payments based on her average weekly wage for over a year, totaling approximately $23,000.

However, the situation took a contentious turn when HSLI accused Reeder of making false statements to obtain compensation. The case went to trial, with Reeder having to forfeit her right to workers’ compensation benefits by violating La.R.S. 23:1208. Faced with the Workers Compensation Judge’s (WCJ) initial ruling against her, Reeder appealed the decision and sought a reconsideration of her case.

August 26, 2023

Final Judgments: What’s Necessary When It Comes to Precise Language?

by Berniard Law Firm

mma_fight_maza_maza-1024x683 What happens when a final judgment from a court lacks precise language as to the damages you should be awarded? The First Circuit Court of Appeals answers this question and explains the importance of precision and certainty in all civil case language.

While attempting to break up a fight between his friend Christopher and Trevor Wilson in early October of 2007, Ryan Martinez, who was a patron at Chevy’s Inc. (“Chevy’s), was struck in the face. Around a year later on February 29, 2008, Martinez wanted Wilson, Chevy’s and their respective insurers (“defendants”) to pay for the injury her received from the fight. Martinez claimed that Wilson punched him in the left cheek, resulting in a fracture that required his jaw to be wired shut for around eight (8) weeks. Martinez lost 30 pounds due to a lack of solid food, which prevented him from working and forced him to drop two classes he was enrolled in. His main assertion was that Wilson was liable for battery, entitling him to damages from the incident.

At the trial court level, the court found in favor of Martinez and awarded him special and general damages that were to be paid by the defendants. The court found in favor of Martinez and against Wilson and awarded damages (special and general) to Martinez for $35,128.66.

August 24, 2023

Louisiana Court Reverses Summary Judgment, Permits Plaintiff to Continue Discovering Facts

by Berniard Law Firm

site_truck_vehicle_transport-1024x683 The discovery process of litigation is vital to a well-informed judgment rendered by the court. But discovery can be halted, disrupted, or dismantled by various motions. Finding and gathering all the necessary information in a lawsuit is incredibly important for all sides. Still, it requires showing a need for that information and the presence of facts in dispute. Identifying and presenting disputed facts of a case is necessary to help protect your case from a summary judgment dismissal.

Heniff Transportation, LLC (“Heniff”) was a licensed professional truck driver transporting dangerous chemicals. One of the plaintiffs, Carl Davis, was a self-employed independent contractor working for Heniff. During this work, Carl attempted delivery of a tank of hydrochloric acid to GEO Specialty Chemicals (“GEO”). GEO personnel found defects in the tank, which Heniff owned. To address the defect, Heniff directed Carl to have Bastrop Tank Wash (“Bastrop”) repair the tank. Bastrop allegedly repaired the tank, but when Carl and GEO later began transferring the hydrochloric acid from the tank, the allegedly repaired hose ruptured, hydrochloric acid escaped from the fittings, and Carl’s required protective gear was knocked off his body. As a result, Carl suffered injuries to his eyes, face, and body.

Carl and his wife, April, sued Heniff, Bastrop, GEO, Sparta Insurance (later replaced by Arch Insurance), ABC Insurance, and DEF Insurance, for damages and loss of consortium. In response, Bastrop filed for summary judgment, arguing that the part of the exploded hose was not a part that Bastrop repaired.

August 22, 2023

How Important is Expert Testimony in Medical Malpractice Cases?

by Berniard Law Firm

medical_appointment_doctor_563427-1024x683 In the face of the profound loss that accompanies the passing of a family member, the impact can be particularly agonizing when that loss follows the anticipation of medical intervention, such as a transplant. The immediate inclination might be to explore legal avenues through a medical malpractice claim, yet the determination of whether negligence played a role can be an intricate matter for the average individual. This Louisiana case shows how important it can be to obtain expert testimony to help show malpractice occurred.

The medical malpractice case brought by Jarrard Green and his sister Bernadine Green arose from complications after a donated kidney failed post-transplant. Jarrard donated his kidney to Bernadine, who suffered from end-stage renal disease. The transplant was performed by one of the defendants, Joseph Buell. Several days after the transplant, the kidney failed and needed removal. Jarrard initiated a Medical Review Panel process which rendered an opinion in favor of the defendants stating there was no breach in the standard of care.

A medical malpractice and lack of informed consent lawsuit followed. Defendants Dr. Joseph Buell, Dr. Douglas Slakey, and Tulane University Hospital filed a motion for summary judgment stating the Greens lacked the necessary expert testimony to support the allegations. The motion was granted by the trial court dismissing the claims. The Greens appealed.

August 20, 2023

Should an employer continue to pay Workers’ Compensation Benefits even after an employee has fully recovered?

by Berniard Law Firm

worker_shoes_shoes_work-1024x768 Should an employer continue to pay for work-related injuries even after an employee has “fully recovered”? At issue is a decision that terminated an employee’s entitlement to certain benefits. After the employee suffered a work-related injury and received temporary total disability benefits, her former employer, The Walgreen Company, filed a motion to modify the judgment. This led to litigation and a subsequent appeal.

Former Walgreens employee Alyce Mouton, a resident of Metairie, Louisiana, was injured while performing her duties at Walgreen Drug Stores in that city. Initially, the Workers’ Compensation Judge (WCJ) of the Louisiana Fifth Circuit Court of Appeal ruled in her favor, awarding her temporary total disability benefits and ordering Walgreens to pay for all reasonable and necessary medical treatment resulting from her workplace injuries. However, Walgreens later filed a motion to modify the judgment, alleging a change in Mouton’s condition and seeking to convert her benefits from temporary total disability to supplemental earnings benefits (SEBs). This dispute eventually led to an appeal when Mouton challenged the decision. See Mouton v. Walgreen Co.

In Louisiana, the workers’ compensation system is governed by specific laws designed to protect the rights of both employees and employers. One such statute is Louisiana Revised Statutes 23:1310.8. This statute grants the WCJ continuing power and jurisdiction over each case. It allows for modifying or amendment of prior findings or orders when such changes are warranted in the judge’s opinion. In addition, the statute allows for review of any award upon motion of a party, particularly in cases where there has been a change in circumstances. The WCJ may then enter an award that terminates, reduces, or increases the compensation previously awarded.

August 18, 2023

Harrah’s Casino Slip & Fall Lawsuit Survives Summary Judgment

by Berniard Law Firm

casino_note_roadway_mark-1024x683 When you enter a store or place of public accommodation as a customer, there is a certain expectation of safety. Many customers expect stores to provide clean bathrooms and a slip-free environment. This, however, was not the case for Valencia Lewis when she was walking through a New Orleans casino.

Lewis was walking through Harrah’s Casino in New Orleans when she slipped and fell on the marble floor. After her fall, Lewis’s husband and son came to help her back to her feet. Lewis, her husband, and her son reported seeing “a little white stuff” on the floor. A Harrah’s employee identified this substance as a “smushed grape.” Ms. Mayshack, Harrah’s on-duty supervisor, noted that a substance “like melted cheese” was on the floor after Lewis’s fall. Another employee, however, reported that he did not see any smashed fruit on the ground after Lewis’s fall. During discovery, a video depicting Lewis’s fall was produced. This video, however, did not show any substance on the ground before Lewis’s fall.

In her complaint, Lewis alleged that Jazz Casino, owner, and operator of Harrah’s, failed to (1) properly maintain the premises, (2) provide a reasonably safe surface for customers to walk on, (3) provide any warning of the dangerous condition and (4) inspect the area where Lewis was injured. Jazz Casino filed for summary judgment, arguing that there was no factual support for several elements of Lewis’s claim under Lousianna’s Merchant Liability Statute La. R.S. 9:2800.6. For instance, Jazz Casino argued that Lewis could not show whether (1) the food on the floor presented an unreasonable risk of harm that was reasonably foreseeable; (2) Jazz Casino created the risk of harm or had actual or constructive notice of the condition before Ms. Lewis’s fall, and (3) Jazz Casino failed to exercise reasonable care to keep the aisles and walkways free of hazardous conditions.

August 17, 2023

Medical Malpractice Claim Dismissed For Plaintiff’s Failure To Show Sufficient Evidence

by Berniard Law Firm

paramedics_doll_hospital_medical-683x1024 The prospect of undergoing medical procedures carries inherent risks; sometimes, unfortunate incidents can lead to injuries. In such cases, individuals can pursue medical malpractice claims to seek compensation for damages. A crucial aspect of these claims is presenting the appropriate evidence and adhering to procedural requirements. A telling illustration of the importance of these procedures is found in a lawsuit involving Elliott R. James and Lakeview Medical Center, LLC. This case underscores the significance of following legal protocols and obtaining substantial evidence to bolster a medical malpractice claim.

Elliott R. James entered Lakeview Medical Center, LLC d/b/a Lakeview Regional Medical Center (“Lakeview”) for an exploratory laparotomy. A procedure where an endotracheal tube was inserted into him was completed with no complications. While he recovered for the next few days, James began experiencing nausea and vomiting. James returned to Lakeview, where Nurse Dinah Justilian attempted to place a nasogastric (NG) tube through James’s nose to reach his stomach. James alleges that Nurse Jusitilian did not contact his treating physician Dr. Darren Rowan before attempting to insert the tube. Nurse Justilian had difficulty inserting the tube. The tube encountered some resistance while being slid down Mr. James’ throat but was eventually able to be inserted successfully. Mr. James stated he felt severe pain in his throat during the process.

A few days later, when the NG tube was removed, James still experienced pain in his throat. On November 4, 2010, Lakeview discharged James despite him still complaining of throat pain. James decided to obtain a second opinion about the pain from a specialist. The specialist found that his right vocal cord appeared damaged and would either heal within a year or was permanently damaged. Since then, James alleges his throat injury never healed. However, on July 16, 2014, a Medical Review Panel (MRP) rendered its findings on the situation. They found that the NG tube was placed correctly despite the discomfort, and there was no evidence that the NG tube was the likely cause of James’s injury. The MRP concluded that the evidence did not support James’s claim that Lakeview failed to meet the applicable standard of care.