Articles Posted in Property

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The Jones Act is officially titled the Merchant Marine Act of 1920 and was passed by Congress in response to concerns about the health of the Merchant Marine and to establish protections for sailors. Before the Jones Act, seamen who were injured had few options for recovering damages for their injuries, but now the Jones Act allows you, as an injured seaman, to obtain damages from your employer for the negligence of the ship owner, the captain, or fellow members of the crew.

A federal statute (46 U.S.C. § 688) extends the Federal Employer’s Liability Act (FELA), which originally only applied to railway workers to seamen and it reads, in part, “[a]ny sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply…”

According to the Fifth Circuit Court of Appeals for the State of Louisiana, “an employer is held to the standard of care of ‘ordinary prudence under the circumstances.’” Admiralty and maritime law can become increasingly complicated and it is important that you sufficiently prove to the court that your employer has breached the standard of care that is owed to you. In Lett v. Omega Protein, Inc., a recent case decided by the Fifth Circuit, the importance of having quality representation with experience in admiralty and maritime law is evident.

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We hear about injuries to customers resulting in large settlements in the news frequently. In any industry, there is some risk that clients or customers will be injured during the time they are patronizing the establishment. When these injuries occur it often results in a lawsuit. Who is at fault (and as a result, liable for the damage) generally comes down to a determination of the “duty” that is owed by the establishment owner to his patrons.

So when can someone be injured and lose? One scenario presented itself in Darlene Johnson v. Super 8 Lodge-Shreveport in 2008. Mrs. Johnson and her father were guests staying in a Shreveport, Louisiana, Super 8 Lodge hotel “Jacuzzi Suite” after evacuating their home as a result of a hurricane. Like most hotel rooms, this one had a television for guest use. Unlike many, this suite’s TV was positioned at a 90 degree angle to the bed, making it awkward to view while laying in bed but designed to be comfortably viewed from the provided couch. The hotel was aware that not all guests preferred to have the television facing the bed and offered a service moving the entire entertainment center around for them. While the majority of guests didn’t request it, it wasn’t an unusual request. In fact, Mrs. Johnson was aware of this service and had requested it multiple times during her stay. However, during this incident, Mrs. Johnson did not request the entertainment center be moved. Instead, she attempted to do it herself and was injured as a result of the television falling on her. She subsequently sued suggesting the television should have been secured to the entertainment center with a pivoting platform, as they should have anticipated a guest trying to move the TV themselves.

The crux of the debate is a matter of what level of duty was owed to their guests by the hotel operators. Duty is a technical term in negligence law that sets the lowest obligation that someone owes to someone else in a situation. A hotel is required to exercise “reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition.” While they are not required to absolutely guarantee the safety of guests, hotels must be careful to keep them from anticipated injury. To succeed in a suit such as this, a guest needs to demonstrate that the television was in the hotel’s custody, that it created an unreasonable risk of harm to others, and that something about the defective condition caused the damage. The court ruled in favor of the hotel.

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On a June night in 2006, Jeryd Zito was driving on a highway going through Plaquemines Parish when an ambulance appeared seemingly out of nowhere. Zito swerved to avoid it, but was not fast enough, hitting the left back corner and the left side of the ambulance. After the accident, Zito sued the owner of the Ambulance, Advanced Emergency Medical Services, Inc., and its insurer, to recover for the damage caused by the accident. While this may seem backwards, the person causing an accident suing, but the issue is much more complicated.

Zito claimed the accident was Advanced’s fault because the drivers were negligent in not taking the proper precautions to warn oncoming traffic that the ambulance was broken down on the side of the road. During the trial, the big issues were how far into the right lane, if at all, the ambulance was, and if there were any warnings on it, such as reflective tape, to signal to oncoming drivers there was something in the way. The rationale is that, while the vehicle was off to the side of the road, people are not expected to see in the dark or sense a blockage up ahead versus a general expectation of reasonable efforts being made to avoid accidents.

The trooper who investigated the accident testified that based on skid marks, the ambulance was parked five feet from the right lane, it was covered in reflective tape when he got there, Zito told him that he (Zito) was on his cell phone at the time of the accident and that there was no evidence that Zito tried to break before he hit the ambulance. The trooper issued Zito a citation for careless operation of a vehicle, which Zito paid without dispute.

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Susan Michelle Canon brought suit in Calcasieu Parish, Louisiana, when her boat caught fire while en route from North Carolina back to Louisiana. The trial court ruled in favor of the sellers, who were from North Carolina, and dismissed them from the suit because of lack of personal jurisdiction. The appellate court upheld this decision. This case is an excellent example of why every lawsuit must be examined for proper jurisdiction to make sure that it is filed properly and that the expected outcome isn’t cut short from the very beginning.

To determine whether personal jurisdiction existed, the court considered a number of factors indicating whether it would be proper to draw the sellers into court in the state of Louisiana. These factors included where the sellers reside, where they do business, where they have registered offices, and whether their business targets a particular region. Their contact with Louisiana must also have been continuous and systematic, to support an assertion of general jurisdiction.

Sellers Raeford and Jennifer Millis here did not have sufficient contacts with Louisiana. They did not live there, do business there, or have a registered office in that state. The boat they sold Ms. Canon was simply listed on the internet, accessible and available to people all over the world. Ms. Canon made the initial contact, and mailed the sale proceeds to a bank in North Carolina, where the Millises live. Ms. Canon also went to North Carolina to execute the bill of sale, using a North Carolina notary, and took possession of the boat in that state. Based on these facts, she could not establish meaningful contacts, ties, or relations between the Millises and Louisiana.

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Many floors were damaged in Hurricane Katrina. A Louisiana, jury was asked the question: when a floor is rotten, who is at fault when a person visiting the home is harmed?

Juries are often asked to determine liability for an accident. When a person is injured, a jury determines who is liable by listening to both sides of the story and determining who was at fault. If the liable party is insured; insurance companies have to pay big dollars to the person injured. Determining who is at fault can be very difficult.

Sharon Lewis was visiting her father, Clifton Lewis, when she sustained a fall in her father’s home in Marrero, Louisiana. Sharon was walking on the floor in the dining room when she stepped into a soft spot. The floor collapsed and her foot fell through the floor, causing substantial injuries.

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According to an American Law Report, it is generally the rule that the owner or occupant of a property touching a public sidewalk does not, solely by reason of being the owner, owe to the public a duty to keep the sidewalk in safe condition. This rule of nonliability is not affected by a statute or ordinance requiring an abutter to construct or maintain an adjoining sidewalk, unless there is an express, contrary provision.

However, the abutter will be liable for injuries resulting from a defective or dangerous condition that is created by his or her own acts, which constitutes negligence or a nuisance under the circumstances. For example, an abutter may be liable for injuries resulting from negligent construction, alteration, or repair of the sidewalk, even though these acts in and of themselves do not create liability.

The courts have usually considered compliance with the requirements of a statute regulating the construction of sidewalks. In a number of cases, knowledge or notice of the defect is a factor for liability, although the courts in many other cases have not treated this issue, given the fact that knowledge or notice of a defect on a sidewalk, as well as its direct cause, is difficult to ascertain.

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The plaintiff in Susan Michelle Canon v. Harry B. Towns, et al. recently lost her appeal from a judgment from the Parish of Calcasieu, dismissing her claims against the defendant North Carolina boat sellers in the case for lack of personal jurisdiction. If a court does not have jurisdiction over a party in a case, it will dismiss the claims against that party. Failure to choose the proper court can prevent the success of a valid claim and lead to wasted time and money.

In need of a shrimping vessel to start a business in Louisiana, the plaintiff in the case, Ms. Canon, discovered a boat advertised for sale on the website NoBoatBrokers.com. The listing provided a North Carolina phone number for the sellers, Raeford and Jennifer Millis, which Ms. Canon used to initiate negotiations. These negotiations resulted in Ms. Canon transferring funds from her bank in Louisiana to the seller’s bank in North Carolina to pay for the boat. After traveling to North Carolina to finalize her purchase, Ms. Canon released the uninsured boat to the custody of her Louisiana boat captain and one crew member, both of whom oversaw the boat run aground repeatedly after leaving Sneads Ferry, North Carolina until its ultimate destruction as a result of catching fire in Florida.

The North Carolina boat sellers, the Millises, objected to the Louisiana court’s exercise of personal jurisdiction over them as defendants. In accordance with procedural rules that must be followed in civil law suits, a court must have jurisdiction over the “person” for the court to exert its authority over that defendant. Louisiana refers to its rules of civil procedure as the Code of Civil Procedure (CCP), and courts in the state may refer to prior state and/or federal case law to interpret specific provisions of the Code. Louisiana addresses issues of personal jurisdiction in CCP 6. The only limit on the state’s exercise of personal jurisdiction are those imposed by the due process requirements of the constitution, and in the case of non-resident defendants, there must have been sufficient contact with the state to support that court’s assertion of personal jurisdiction over that defendant. The trial court did not find the Millises’ contacts with Louisiana sufficient to assert jurisdiction over them and dismissed the claims against them.

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The duty owed by hospitals to patients is a rather cut and dry area of law. However, a case arising out of West Monroe, Louisiana, illustrates how questions of liability become more difficult when the patients’ visitors are involved. Although a hospital does owe a duty of reasonable care to its visitors, the key is whether there is an “ease of association” between that duty and the risk of harm. Liability will therefore often turn, not on the factual issues of a case, but whether the risk of harm to the visitor is within the scope of that duty.

This was the matter before the Louisiana Second Circuit Court of Appeal in Vanderpool v. Louisiana Extended Care Hospital. The case involved a visitor who was injured after her mother fell off a commode chair. The patient’s daughter was helping her mother onto the chair when the arm gave way. Unable to support her mother’s weight, the daughter fell to the floor and sustained injury. The trial court granted summary judgment to the defendant hospital, meaning there was no issue of material fact and a decision could properly be made without the need for further deliberation.

Reviewing summary judgment for a hospital’s liability usually begins with consideration of the hospital’s legal duty. This was the primary determination in Vanderpool, where the appellate court first addressed the hospital’s duty to the plaintiff visitor. While the hospital had a duty to maintain the commode chair in safe working order and to take other steps to protect the patient, the patient’s visitor was not similarly protected. As the court reasoned, “The hospital’s duty to exercise reasonable care for the safety of visitors would not encompass the unlikely risk that a visitor would sustain an injury in connection with a patient using a commode chair.” The point of a duty of care is not to protect against all possible instances of harm that could arise.

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To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker’s compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker’s compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker’s compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker’s compensation program should be handling your claim, not the court.

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The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms

Assertive Conduct:

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