Pain And Suffering Claims

July 1, 2010

Court of Appeals Examines the Scope of Employment Requirement for Vicarious Liability

In a recent Louisiana Court of Appeals decision, Janika Johnson appealed a verdict in favor of Gilley Enterprises, owner of a Monroe McDonalds. Johnson, as a customer at the McDonald’s in 2006, was involved in an altercation with an employee. There was a history of ill feeling between Johnson and the employee because Johnson was dating the father of the employee’s child. Johnson called the other woman over to the counter, and a conversation ensued which turned loud and heated. The employee reached over the counter and struck Johnson in the face. Other store employees intervened. Johnson was told to leave and started towards the door. The other woman picked up a cup, dipped it into an open vat of hot grease, and threw the hot grease on Johnson, who suffered serious burns on her face and body.

Johnson filed suit against Littleton (the employee) and Gilley Enterprises, contending that Gilley was liable because their managers were negligent in hiring, training, and supervising Littleton and that Littleton’s attack occurred in the course and scope of her employment, making Gilley vicariously liable. Gilley responded that all of Johnson’s causes of action had prescribed. The trial court granted Gilley’s exception for the negligence claim but denied it pertaining to vicarious liability. Gilley filed a motion for summary judgment to dismiss the remaining vicarious liability claims arguing that Littleton was acting outside the course and scope of employment, the trial court agreed and Johnson appealed. On appeal Johnson argued that the trial court erred in concluding La.C.C. art 3493.10 was inapplicable to her claims of negligent hiring, training and supervision.

Louisiana C.C. art 3493.10 states:

June 25, 2010

Legal Responsibility for Accidents/Harm in Orleans Parish Nursing Homes

by Berniard Law Firm

Admitting your elderly mother into a nursing home is supposed to relieve stress and lift a burden from your shoulders. You believe she is going to receive the proper care she needs that you are unable to provide.

Unfortunately, for Edward Lewis, tragedy happened after he made this tough decision. His 93-year old aunt, who Lewis considered a mother, drowned in a whirlpool at Easthaven Rehabilitation Care Center in 2002. The nursing home told Lewis that his aunt died peacefully in her sleep but it wasn’t until one month later he learned the truth — an employee had placed his wheelchair-bound aunt in a whirlpool unsupervised, even after Lewis told the staff he did not want her in the water. Sadly, actions that cause harm or even death to a nursing home resident can generate minimal response from the state.

In Louisiana, nursing homes are required to report all “suspicious deaths.” Per a NOLA.com article approximately 4,500 nursing home residents die every year in Louisiana and of 250 wrongful deaths reported from 1999-2005, only 15 of those deaths were labeled as “suspicious.” Steven Miles, a University of Minnesota professor who published a 2002 report called “Concealing Nursing Home Deaths,” said almost half of the reported cause of deaths in nursing homes across the nation is wrong. For example, back in 1998 in Arkansas one 78 year old nursing home resident

June 19, 2010

Intoxicated Tailsheek Man Gets Ten Years for Injuring Woman in Traffic Accident

by Berniard Law Firm

According to a recent article in New Orleans’ Times Picayune, Kenneth Allain of Tailsheek pled guilty last month to charges that he permanently injured a 75 year old woman by ramming his car into her while under the influence of prescription drugs. The accident occurred on Louisiana 41 about three miles south of Louisiana 21 in northeastern Tammany Parish. The injured woman, Edythe Proze, was driving in front of Allain and stopped to make a left turn when Allain continued driving, slamming into the back of her vehicle. Troopers at the scene determined that Allain was intoxicated and took a blood sample.

Allain pled guilty to first degree vehicular negligent injuring and was sentenced to ten years in prison: five years for the crash (the max allowed under state law), and five years because he was a repeat offender.

Proze was taken from the scene with moderate injuries. She is now faced with “life-changing” injuries and is living in an assisted-living facility.

June 9, 2010

Prescription Rules in an Asbestos Case

by Berniard Law Firm

As the last couple posts have described, some aspects of asbestos cases do not fit within the traditional mold of other personal injury cases. Because these cases continue to be treated as personal injury matters, some of the rules must be relaxed or modified. The Louisiana Supreme Court dealt with some of these modifications in the case of Cole v. Celotex, 599 So.2d 1058 (1992). We look now to explore what the Court had to say about prescription rules that place time limits on a plaintiff’s right to file suit for an injury.

Typically, the rules of prescription give an injured party one year from the date they are injured to file a lawsuit seeking damages against the person(s) responsible for the injury. As we have already noted, the time when an asbestos-related injury actually “occurs” is difficult to determine. Thus, the Court in the Cole case ruled that, for legal purposes, the repeated exposure to hazardous substances give rise to a claim. That is true even if the asbestos-caused disease does not manifest itself until later.

Because the time of the injurious event is difficult to pinpoint, the prescription rules are also hard to apply. Indeed, the Court recognized that a brief one year prescriptive period is incompatible with long latency diseases. An injured party may not even realize that he has suffered any harm for years. Thus, Lousiana courts can apply the “discovery” rule to asbestos cases. Under the discovery rule, the prescriptive period does not begin until “the plaintiff knows or through the exercise of due diligence should have known of the injury.” Cole, 599 So.2d at 1084. Even then, the prescriptive period only runs on injuries the plainiff knows about or should know about. In other words, a plaintiff will not miss his chance to seek damages for disease he does not know about:

June 6, 2010

Previous Injury and the Eggshell Plaintiff Rule

by Berniard Law Firm

Accidents happen and when they do people wonder just how much can be considered when calculating damages. Many wonder “what happens when someone who is already injured is in an accident?” What’s more, if someone already had a bad knee, for example, can the defendant be held responsible for further damage to that knee. The Eggshell Plaintiff Rule helps explain the aggravation of existing injuries.

In a 2000 case, the Louisiana Supreme Court set out the Eggshell Plaintiff Rule but still reversed the Court of Appeal’ finding of damages because the trial court’s decision of no aggravation of injuries did not meet the high manifest error standard.

In April 1996 Mary Touchard drove a friend to Carnecro to pay her electric bill. While leaving the parking lot of the power company, Touchard’s car was hit from behind by a pickup truck driven by Ted Breaux. Ms. Touchard did not have the ambulance called and complained of a headache at the scene while Breaux claimed he was not entirely at fault for the accident and that vehicular impact was minimal. Ms. Touchard sued Breaux and his insurance company, however, claiming she suffered mental and physical injuries in the accident.

June 5, 2010

Contract Indemnity Provision Voided Under Louisiana Oilfield Anti-Indemnity Act: Legislative Intent Irrelevant When a Statute is Clear

by Berniard Law Firm

Samuel Silverman Jr. was injured while working for BJ Services Company, a contractor for Bass Enterprises Production Company, hired to provide services on an oil well in Cado Parish. The injury was to Silverman’s knee and occurred because a hoist operator employed by another contractor at the site, Mike Rogers’ Drilling Company, dropped a cement head and pinned his knee against a derrick.

Silverman sued Rogers’ Drilling, alleging that the negligence of their employee (the hoist operator), caused the accident. Rogers’ Drilling tried to get around liability by filing a third-party demand against Bass under a provision in the contract between Rogers’ and Bass wherein Bass, as operator, agreed to indemnify Rogers, as contractor.

According to the provision, indemnification included a release of any liability and agreement to protect, defend, and indemnify against all claims, demands, and causes of any kind without regard to negligence of any party. Can such a strong indemnity clause be upheld under Louisiana law and the Louisiana Oilfield Anti-indemnity Act (LOAIA)? The trial court found the provision to be against the LOAIA and thus null and void, and in a decision this summer, the Louisiana Court of Appeals agreed.

June 1, 2010

Medical Malpractice Claims Must Be Handled With Care

by Berniard Law Firm

Almost every person who is admitted at a hospital has had to deal with a nurse at some point. Nurses, like doctors, are responsible for providing medical care to patients and can be subject to liability if they deliver treatment that falls below the standard set forth by the law of proper care. A 2010 case centering around the Willis Knighton Medical Center in Bossier City, Louisiana, discusses the standards required of a nurse.

Mr. Reilly was admitted to the ER with multiple pelvic fractures after a horse had fallen on top of him at Louisiana Downs. After surgery, doctors inserted a catheter to alleviate bladder pressure. Reilly was cared for by several nurses in the following months who removed and reinserted additional catheters. Reilly alleged that on numerous occasions, the nurses were negligent in the removal and insertion process, leaving him impotent and in need of additional surgery to correct the damage that he had suffered from this process.

To file a medical malpractice claim against a nurse or doctor, you must establish the:

May 24, 2010

Shreveport Slip and Fall Illustrates Law’s Approach to Liability

by Berniard Law Firm

If you have slipped and fallen in a Louisiana store, you may not realize you are not alone. What’s more, you might not understand that you may have the legal rights to make a claim against the store for the incident. Just recently a lawsuit was filed in western Louisiana by a customer of a store who injured herself on the premise. These types of cases are classically known as “slip and fall” case. The victim in this case, Leona Jordan, was shopping at Walmart when she slipped on water that had accumulated on the floor and fell. Jordan was injured and hurt her hip, back, knee, and leg.

These types of accidents are far from rare. In fact, earlier this month Ellen Hickman injured herself at a Louisiana Dollar General store. She slipped and fell on a small plastic toy. As a result of the accident, she hurt her lower back, back of her head, ankle, and right leg.

If you have had a similar experience, you should know that Louisiana has laws in place to protect you.

May 21, 2010

Pedestrian Killing near Highway Shows Need for Increased Awareness about Pedestrian-Automobile Safety Laws

by Berniard Law Firm

The roadways are a dangerous place for any individual, regardless if they are driving or merely a pedestrian. Because of environmental dangers as well as a wide variety of mechanical and human errors that can occur as cars drive across this country, it is important to understand the complexities of the law. Accidents involving pedestrians and cars happen all too often and the law does not entirely back the pedestrian in all incidences.

According to the St. Mary and Franklin Banner-Tribune, a pedestrian was struck and killed by an automobile on Saturday April 10th while walking along the U.S. 90 Service Road in western St. Mary Parish. The pedestrian was Danny Gautreaux, 52, of Patterson. Mr. Gautreaux was walking eastward on the westbound lanes of the U.S. 90 at Penn Road around 9 p.m. when he was struck by a 68 year-old woman driving a 2001 Ford Taurus. Louisiana State Police spokesperson Stephen Hammons took the occasion to remind pedestrians that Louisiana state law demands that they walk on sidewalks where sidewalks are provided. When there is no sidewalk, pedestrians are expected to walk on the shoulder of the road against the flow of traffic. Gautreaux was walking in the traffic lane when he was struck. He was pronounced dead at the scene by the St. Mary Parish Coroner. A press release reveals that Gautreaux was believed to be walking from his vehicle which had run out of gas near the site of the crash.

Pedestrians should note that they do not always have the right of way. Under Louisiana law (R.S. 32:211) pedestrians have the right of way in crosswalks whether traffic-control signals are in operation or in place or not. Vehicles are expected to slow down or stop to yield to a pedestrian within a crosswalk but the law also provides that it is unlawful for pedestrians to “walk along and upon an adjacent roadway” where sidewalks are available (R.S.32:215). Where there are no sidewalks, pedestrians walking along a highway are expected to walk only on the left side of the roadway or its shoulder facing approaching traffic. Even if a vehicle happens to break down or run out of gas, pedestrians should not engage in soliciting rides or help by standing in the roadway. (See R.S. 32:216).

May 19, 2010

Corporal Punishment: Louisiana Court of Appeals Case from 1979, Still Relevant Today

by Berniard Law Firm

The Louisiana Court of Appeals’ 1979 ruling in Thompson v. Iberville Parish School Board provides insight into what factors should be considered when asking if a teacher has inappropriately punished a student. This decision reversed a previous ruling in favor of an Iberville Parish elementary school student and found in favor of the school and teacher.

12 year old Bryan Wilson was in a music class at St. Gabriel Elementary school when his teacher extended his leg and pushed him with his foot in the right buttock. The teacher claimed that it was the easiest way to get the unruly student’s attention and that he had been reprimanded previously to turn around and pay attention to no avail. Bryan on the other hand, claimed the kick was extremely hard, causing him to cry out in pain and even miss several days of school. The trial court found in Bryan’s favor and awarded his mother $500 on his behalf for pain and embarrassment suffered. They found that although corporal punishment was acceptable under Louisiana law (and teachers were provided with limited liability from civil suit), the choice of action went beyond what was considered reasonable. To the trial court, the use of a foot for corporal punishment was unreasonable no matter how much force was involved.

The Court of Appeals disagreed, however, and reversed the judgment, pointing to the lack of evidence of any serious injury. Bryan was examined by the school principal and a doctor that same day and there was no visible evidence of injury, nor did any abnormality appear on an x-ray. In addition, evidence had been presented at trial that Bryan was a normal, healthy child who did have a tendency to act up at school. The Court of Appeals found that although there were few situations where a kick, no matter how light, would be reasonable, this was one and that the teacher merely acted to get Bryan’s attention, not inflict pain.