Articles Posted in Pain And Suffering Claims

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Time is of the essence when it comes to filing a suit to address a grievance. If too much time passes, one may be barred from filing a lawsuit. The time period for filing a lawsuit is known as the “prescriptive time period.” For example, a lawsuit for personal injury is subject to a one-year period of liberative prescription, following the date of the accident. The issue may become whether or not the time period has passed or not, thus, keeping a close eye on the calendar is the best way to stay safe when filing a lawsuit.

In a recent Louisiana Supreme Court decision, the court explored the time period in which the plaintiff initially filed to determine whether or not he filed in the appropriate time period. The cases arose from a fire at an oil well site in which the plaintiff was severely burned. The oil well accident occurred on September 27, 2007, thus, according to the prescriptive time period, he had one year from this date to file suit against the defendant(s). The plaintiff was employed by a Well Service Company that had contracted with an additional Mineral Company that produced oil and gas. In turn, the Mineral Company contracted with the plaintiff’s direct employer to drill a well. The plaintiff filed a tort suit for his personal injuries against the Mineral Company and its insurer on September 4, 2008, falling within the one-year time period allowed for personal injury lawsuits. The plaintiff sustained injuries during the drilling operations, the well penetrated into formations that were pressurized with hydrocarbons. At the time of the incident, the plaintiff was in charge of circulating water through the well while awaiting heavier drilling mud to be pumped into the well to control the hydrocarbon pressure. His direct supervisor, a Well Service Employee, told the plaintiff to stand away from the well because the level the pressure was dangerous. However, the Mineral Supervisor contradicted the former supervisor’s orders and told the plaintiff to get on his station at the pump and to abandon it only after shutting the pump off should the gas escape the well.

To the plaintiff’s misfortune, he followed the Mineral Company’s supervisor, where shortly after a hydrocarbon gas from down-hole escaped from the water tank sufficientily so that it ignited as the plaintiff was attempting to shut off the pump. This caused the hydrocarbon cloud in which the plaintiff was surrounded by, to become ignited, severely burning his entire body. It was only after the plaintiff filed suit against the Mineral Company that he discovered that the alleged Mineral Company supervisor was actually an independent contractor employed by a separate Pipeline Company. Thus, after the one year period, the plaintiff named the Pipe Company as a defendant in an amended petition. The question became whether or not the amended petition was proper, since the prescriptive period of one year had since passed. Thus, the Supreme Court’s responsibility was to explore the lower court’s decision which sustained the Pipeline Company’s argument that too much time had passed and thus, the plaintiff should not be allowed to add them into the initial lawsuit.

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Under Louisiana jurisprudence, daycare workers and other temporary custodians of children are required to exercise the “highest degree of care” toward their charges. However, they are not “insurers of the children’s safety” with unlimited responsibility. Rather, the law requires custodians to follow a standard of care that is appropriate for the age of the children and the particular circumstances. This duty does not require “individual supervision of each child at all times and places,” when such level of attention is not warranted. If a child happens to sustain an injury while under the care of a daycare provider, courts apply the traditional “duty/risk” analysis to determine whether the provider met the applicable standard of care.

The recent case of Wade v. Miniworld Daycare turned on the court’s analysis of whether the defendant daycare facility “failed to conform to the appropriate standard” of care. The action arose after Ta’Marrion Wade, who was two years, nine months at the time, fell and broke a tooth while running around the Monroe Miniworld Daycare Center’s designated outdoor play area. The boy’s mother, Kassandra Wade, filed suit against the daycare alleging negligent supervision. The trial court entered a verdict for Wade and awarded her damages; Miniworld

appealed. The Second Circuit Court of Appeal noted that the daycare unquestionably met the state’s required standards for the ratio of caretakers to children at the facility. It also examined the record for evidence of the circumstances surrounding the incident: Ta’Marrion was engaged in a running game with his peers in the play area. The children were not “running crazy,” and they did not “fight,” “hit,” “push,” or engage in any other prohibited behavior that would have caused a worker to intervene. In fact, a teacher observed Ta’Marrion fall “face down” at one point, but he immediately “got up and started running … some more.” It wasn’t until Ta’Marrion and the other children lined up to go indoors that the teacher noticed the child’s missing tooth. Ta’Marrion appeared to be in no pain, so the teacher cleaned out his mouth, called Ms. Wade, and filled out an incident report. The court reasoned that “under [these] circumstances, defendant daycare was furnishing and maintaining adequate supervision.” Further, while “daycare professionals have a duty to attempt to prevent … injuries, sometimes it is impossible, as in the situation” described by Ta’Marrion’s teacher. “Just because a child is injured while in the custody of a daycare does not mean that the daycare was acting negligently.” Accordingly, the court concluded that the trial court “committed manifest error by finding the daycare liable,” and reversed the judgment.

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The story behind Davis v. Foremost Dairies is a tale of a woman who could be considered at least slightly accident prone. Three different doctors weighed in on the probable cause of her main injury, a bulge in the disc between two of the vertebrae in her neck. In addition to the car accident with one of the defendants, she suffered a fall down some stairs and an incident in which an eight-year-old child grabbed her neck. The issue at hand was whether or not the accident with the defendant was the proximate cause of her permanent pain.

Proximate cause is a legal concept that most students of law find confusing at first. Proving that a defendant was the proximate cause of a plaintiff’s injury is crucial to proving the overall claim. Palsgraf v. Long Island Railroad Co. is probably the most famous case laying out the legal definition of proximate cause. Chief Judge Benjamin Cardozo, later Justice Cardozo, wrote this often cited opinion. His decision, strongly dissented to by Judge William Andrews, deviates somewhat from what could be called the common sense definition of causation.

For those not familiar with the Palsgraf case, here is a brief explanation. This case dealt with a woman injured by a falling scale on a train platform that was knocked over by vibrations in that platform cause by fireworks. These fireworks exploded when two guards pushed and pulled a man carrying a non-descript package onto a departing train. The issue at hand was whether or not the men, who were in the employ of the train company at the time of the incident, were liable for Ms. Palsgraf’s injuries. A traditional “but-for” analysis of this event would say that Ms. Palsgraf would not have been injured but for the acts of the railroad company’s employees. The New York Court of Appeals reversed the New York Supreme Court and denied relief to the plaintiff. The court determined that the behavior of the train company employees was too remote from the resulting harm. The men were not considered the proximate cause of the plaintiff’s injuries. How do courts determine the issue of causation in a modern context? The answer is very commonly expert medical testimony. Ms. Davis’ case used the opinions of several of these medical experts.

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Roxane Montgomery was hired in October of 2001 as an assistant manager for a video store owned by C & C Self Enterprises, Inc. in Lake Charles. She was 41 years old. Five months later, on April 8, 2002, she was terminated.

Ms. Montgomery sued C & C Self Enterprises claiming that she was terminated because of her age. The Louisiana Age Discrimination Employment Act makes it unlawful for an employer to “fail or refuse to hire, or to discharge, any individual with respect to his compensation, or his terms, conditions, or privileges of employment because of the individual’s age.” Included in her claim that her employer violated LADEA, Ms. Montgomery alleged that she suffered “severe emotional distress resulting in physical complications due to her wrongful termination.” C & C Self Enterprises answered by denying that Ms Montgomery was fired because of her age, but was instead fired because of her “inadequate job performance.” They followed up their answer to the complaint by filing a motion for summary judgment. The trial court denied the motion for summary judgment and awarded the plaintiff $50,000.

Roxane Montgomery v. C & C Self Enterprises, Inc., was appealed to the Third Circuit Court of Appeals from the Fourteenth Judicial District Court of the Parish of Calcasieu. The purpose of this article is to identify and discuss the necessary elements of a successful age discrimination claim and to identify why the trial court erred when it denied C & C Self Enterprises’ motion for summary judgement. The Third Circuit court looked at Federal case law to assist in making their decision because LADEA is “nearly identical” to the Federal statute prohibiting age discrimination: the court looked at the U.S. Supreme Court decision McDonnell Douglas v. Green 411 U.S. 792 (1973) because this decision “set forth the basic allocation of burdens and order of presentation of proof in an unemployment discrimination case.”

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An explosion at the Multi-Chem Corporation chemical plant, followed by a series of smaller ones, has led to an evacuation of the area’s residents. Preliminary reports indicate that no injuries have taken place but it will take some time before a full understanding of the incident is known. The company, which creates oilfield product chemicals, still does not know the full details of the incident. That another explosion has taken place, with the Dow Hahnville incident still in recent memory, leads to a lot of questions regarding the safety standards and practices being utilized at these facilities.

The Associated Press reports that the incident, which appears to have first begun at 4 pm today, featured a significant explosion that could be heard from more than a mile away. The incident led to a one mile radius surrounding the plant being evacuated as all plant employees are accounted for. While the State Police say no one was injured in the incident, previous chemical releases have proven that only after some time are the full effects of an explosion known.

A Multi-Chem Group in Houston spokesman says that the company is still in its exploratory phase and will provide details when they are available. Information is still scarce at this time but we will update this blog as it is available.

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Reports are coming in that an explosion has taken place at the New Iberia chemical plant, leading to an immediate evacuation of residents in the area and plant personnel.

More information will be provided as it becomes available.

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After filing a lawsuit, plaintiffs are required to notify defendants of the impending suit so that they may defend and respond to the claim. Without notice that a lawsuit has been filed against them, defendants’ due process rights may be violated if an unfavorable judgment is entered or rendered without their knowledge. The time frame for this requirement – commonly known as “service of process” – varies among state and federal jurisdictions. In Louisiana, plaintiffs have ninety days from filing a lawsuit to request service of process, which is known in Louisiana as “citation and service.” The lawsuit officially begins once a defendant receives citation and service because only then will a court have jurisdiction over all of the parties. If service is not completed within the statutory period, defendants may justifiably make a motion to dismiss the case. Plaintiffs, however, may be able to defeat a motion to dismiss if they can show good cause for being untimely with the requirement. This issue was recently before the Supreme Court of Louisiana in George Igbinoghene and Sebastian Busari v. St. Paul Travelers Ins. Co.

In the seminal case, Igbinoghene and Busari (hereinafter “plaintiffs”) filed their petition in the parish of Orleans on May 18, 2007, but failed to request service within ninety days of the filing date. St. Paul Travelers Insurance Company (hereinafter “St. Paul”) filed a motion to dismiss for insufficient service of process. The district court denied the motion and St. Paul appealed.

On appeal, the plaintiffs argued that denying the motion to dismiss was proper because good cause was shown for being untimely since they agreed to St. Paul’s request to extend the time to file responsive pleadings. The Supreme Court found this argument unpersuasive given that such events occurred in 2008 and 2009, which were outside of the relevant period. Moreover, the Supreme Court stated that requesting an extension to file pleadings did not act as an express, written waiver of citation and service. In addition, the Supreme Court declared that St. Paul’s knowledge of the suit did not make citation and service unnecessary. To support this assertion, the Supreme Court relied on Naquin v. Titan Indemnity Co., a Louisiana Fourth Circuit Court of Appeals case, which held that “defendant’s actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions.”

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According to the Louisiana Code of Criminal Procedure, a merchant may use reasonable force to detain a suspected shoplifter for questioning or arrest for up to an hour. La. Code Crim. P. Art. 215(A)(1). A merchant who acts under this provision is entitled to immunity from any civil actions arising out of the detention, provided he can show that he had reasonable cause to believe that the detained person committed theft; he did not use unreasonable force; the detention occurred on the store premises; and the detention did not last longer than 60 minutes. Freeman v. Kar Way, Inc.

The issue of the merchant’s reasonableness was at the center of the recent case of Rhymes v. Winn-Dixie Louisiana, Inc. On the morning of December 24, 2007, Thomas Rhymes visited the Winn-Dixie grocery store in Abbeville to purchase some cough syrup. While shopping, Rhymes’s blood sugar began to drop and he felt dizzy and weak. He slipped the cough syrup into his jacket pocket, grabbed several bags of honey buns, and made his way toward the checkout. A store manager intercepted Rhymes and demanded the products from his jacket pockets. The manager then told Rhymes to leave the premises but a moment later told him to stay, though Rhymes ignored this request and continued toward the door. The manager grabbed Rhymes by the neck and twisted his left arm behind his back. The manager attempted to hit Rhymes as they made their way to the back office but was stopped, mid-swing, by another store employee. When the police arrived, a different manager advised the officer to release Rhymes as the store did not wish to press charges. Rhymes filed suit for physical and mental injuries resulting from the incident. Winn-Dixie answered, denying that Rhymes was injured and asserting the merchant’s detention privilege under the Louisiana Code. Winn-Dixie also filed a motion for summary judgment, which the trial court granted on May 20, 2010. Rhymes appealed.

The Third Circuit began its review with the well-established principle that summary judgment is appropriate only when there is “no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” Rhymes’s argument on appeal was that a question of material fact “regarding whether the force used by the manager was reasonable” existed. Indeed, Rhymes argued that the store manager’s actions were “beyond unreasonable.” The court likened the analysis under the merchant statute to determining whether the force used by police officers in arresting criminal offenders is reasonable, for which the Louisiana Supreme Court has held:

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Over the past two decades, America’s working class has suffered the impact of exposure to asbestos. Before it was known that asbestos could lead to serious illness and death, people worked around the material without hesitation. Problems with exposure arise due to the fact that the fibers of asbestos, once inhaled, can have a very negative impact on your lungs and body. Those who have been exposed to asbestos can contract mesothelioma, a rare kind of cancer that can develop from the protective lining that covers many of the body’s internal organs. It is an aggressive and deadly kind of cancer that has very little remedy; usually the best type of treatment is the keep the person as comfortable as possible.

Even worse, mesothelioma can have the same symptoms of other diseases, so it can be misdiagnosed very easily and lead to significant delays in treatment. Furthermore, the symptoms of the disease often do not appear right away. Because the impact of exposure may not become obvious for many years after exposure, people have the possibility of being diagnosed with something other than the disease and miss out on sorely needed medical attention. Because the disease manifests itself so late, it can easily go under the radar and get worse before anything can be done to resolve it.

In Louisiana, in the New Orleans Parish Civil District Courthouse, the family members of yet another victim of exposure to asbestos will have their day in court. The deceased, Phillip Graf, was exposed to asbestos for over 30 years and died a long, emotional and painful death. His family members are suing up to 29 different defendants in their lawsuits arising from his untimely and unfortunate death. Among the defendants are organizations that may have directly or indirectly played a critical role in the exposure of asbestos leading to Mr. Graf’s unfortunate passing.

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The U.S. Court of Appeals, Fifth Circuit upheld a District Court ruling in early 2011 allowing a contractor out of a negligence suit following a tragic incident in which a young man was electrocuted while trimming trees. The Court held Defendant Contractor Camp Dresser & McKee, Inc. (CDM) did not have a duty to protect a subcontractor from injury and therefore could not be held negligent. Because there was no contract between the contractor and the tree service subcontractor, the Court held there was no principal-independent contractor relationship that would have formed a duty.

Chad Groover, an employee of Groover Tree Service (GTS), was operating an aerial lift and cutting trees on the morning of December 7, 2006, north of Slidell when the basket he was riding in made contact with an energized line. Groover’s brother, Larry Groover, witnessed the electrocution. Chad Groover was severely injured at the scene and sadly died seven months later from complications. The family of the deceased brought a negligence action against several defendants, including the contractor CDM, a CDM worksite monitor, and CDM’s insurers, Zurich American Insurance Company and ACE American Insurance Company. The suit alleged CDM’s negligence caused Larry Groover to suffer mental anguish when he witnessed his brother’s death.

Proving negligence requires proof that the negligent party owed a duty to the injured party. Duty implies a special relationship or can be established by law. The Defendants filed motions for summary judgment arguing they did not have a legal duty to protect Chad Groover from injury. Plaintiffs averred in a cross motion for partial summary judgment Defendants had a statutorily provided duty to have the power company de-energize the lines.

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