Slip and Fall Injuries

July 16, 2012

Deposition Two-Step: Conflicting Reasons for Quitting Job Early Leads to Perjury Charge

This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

April 8, 2012

Happy Holidays to all of our Friends

by Berniard Law Firm

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

January 13, 2012

Negligence Liability in Case Against City in Louisiana Slip and Fall (Part II)

by Berniard Law Firm

As previously discussed, the Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages.

When an individual is injured as a result of an unreasonably dangerous condition existing on a landowner’s property, he can recover damages relying on La. Civ. Code Ann. art. 2315, which is the basis of general negligence liability. The owner, or person, having custody of the property has a duty to keep the property in a reasonably safe condition, and must discover any unreasonably dangerous condition on the premises, and either correct that condition, or warn potential victims of its existence. Louisiana’s duty-risk analysis is made up of five elements: 1) duty – proof that the defendant has a duty to conform his conduct to a specific standard, 2) breach – proof that the defendant’s conduct failed to conform to the appropriate standard, 3) cause-in-fact – proof that the substandard conduct was a cause-in-fact of the plaintiff’s injuries, 4) scope of liability – proof that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries, and 5) damages – proof of actual damages.

Proof of liability on the part of a public entity, such as a city in this case, is governed by La. Civ. Code Ann. art. 2317, and provides in part that individuals are responsible, not only for the damage occasioned by their own acts, but for that which is caused by the act of persons for whom they are answerable, or of things which they have in their custody.

January 11, 2012

Louisiana Slip and Fall (Part I) – Procedure and Attorney Sanctions

by Berniard Law Firm

The Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages. A second point of the case, and the first to be discussed, is the sanctioning of the city’s attorney for ‘wasting’ time in attempting to get an unnecessary Independent Medical Examination (IME) from a physician who was highly unattainable, and using this as an improper means to delay the proceedings. Also, the trial judge in this case was placed on the witness list, and the attempt to have the judge recuse himself was also determined to be used as an inappropriate manner for the city’s attorney to delay the proceedings.

A trial court’s judgment must be found to be clearly wrong or that there was an error in the law. Great deference if provided the trial court and the finders of fact because they are the parties, be it judge or jury, that has the greatest and most humanlike exposure to the witnesses. An appellate court, however, merely has documents pertaining to the facts and witnesses, but cannot personally observe the witness’ demeanor, truthfulness, etc. An appellate court determines if the judgment of the trier of fact was a reasonable one, not whether it was the correct one.

When asking the court for an IME, a party must show: 1) that the physical or mental condition of the party sought to be examined is in controversy, and 2) that good cause exists for requiring the party to submit to the examination. In determining if an IME is proper, a court has wide discretion and should determine whether to allow for one on a case by case basis. Courts will consider whether the physical/medical information can be attained by other means, and that a treating physician should be given greater weight than a physician who only examines a patient a couple times or even just once. Continuances for IMEs are discretionary and may be granted if there is good ground for one. La. Code Civ. Proc. Ann. art. 1601.

December 19, 2011

Alexandria Man’s Gastrointestinal Injuries Not Presumed To Have Developed From Defendant’s Negligence

by Berniard Law Firm

When an individual files a claim for negligence several factors must be proven to succeed against a defendant. These factors state that, in order for negligence to exist, a defendant must owe the plaintiff a duty, breach that duty, be the actual cause of that breach, be the proximate cause of that breach, and the breach must result in actual harm to the plaintiff. Often, however, questions arise in negligence disputes when the cause of a plaintiff’s injury cannot be proven. One of the most controversial of these issues is presumption; whether or not the injury should be assumed to have occurred from the defendant’s breached duty. This was the main issue contended in Jones v. Brookshire Grocery Co.

In this case, Jones suffered from gastrointestinal afflictions after eating chicken strips that contained metal flakes from the defendant’s store. At trial, the court found that although Mr. Jones’s condition did not appear until after his consumption of the contaminated food, it was just as likely that his condition, which usually takes several years to develop, was already present prior to the incident. Therefore, Jones was awarded damages for his anxiety, but nothing for damages related to the gastrointestinal condition. On appeal, Jones contended that Housley, a leading negligence case, should apply in support of his position. Housley states that:

A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.(Housley, 579 So.2d 973 at 980)

December 9, 2011

Plaintiff Learns Painful Lesson About Treating Injuries Without Delay

by Berniard Law Firm

Early in the morning of August 25, 2006, Angela Brignac visited a McDonald’s in Baton Rouge. While she was stopped at the drive-thru’s menu board, her car was struck from the rear by a truck operated by Brian Mumphrey. The collision occurred because Mumphrey’s foot slipped off the brake pedal when he bent down to retrieve his wallet from the truck’s floor. Brignac did not call the police, but did exchange information with Mumphrey. She then ordered breakfast and went on her way. Later that evening, after Brignac went home and discussed the accident with her boyfriend, she called the police to report the accident and went to the hospital to be examined.

Approximately a year later, Brignac filed a lawsuit against Mumphrey and Farm Bureau, his insurance carrier. Brignac’s complaint alleged injuries to her right shoulder, back, neck, head, mouth, and jaw as a result of the collision. The trial court awarded Brignac $3,587 in damages for past medical expenses she incurred treating her jaw injury. It also awarded her general damages in the amount of $6,000, but denied her claims for past and future medical expenses for her shoulder injury. Brignac appealed this judgment, arguing that the trial court erred in failing to award medical expenses related to her shoulder injury. Brignac alleged that she had consistently complained of right shoulder pain from the date of the accident. She testified at trial that she reported both shoulder and jaw pain in the emergency room on the evening of the accident, but the shoulder issue was not documented in the ER records which were completed by both the ER doctor and the triage nurse. The first documented complaint of shoulder pain did not come until six weeks after the accident when Brignac was seen by Dr. Johnston who diagnosed her with a strained rotator cuff. Johnston prescribed pain medications, physical therapy, and exercise, and also administered cortisone injections in Brignac’s shoulder. He testified at trial that while he believed Brignac’s shoulder injury was related to the car wreck, his opinion was “based on history and what she tells me solely.” Brignac did not follow Dr. Johnson’s physical therapy recommendations and was eventually discharged as a patient from the therapy center for failing to show up for appointments. The First Circuit observed that “the trial court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident.” And, after reviewing the record, the court could not say that the trial court’s factual determination on causation was “manifestly erroneous or clearly wrong.” The court held,

“Noting other possible causes for Ms. Brignac’s shoulder injury, including the repeated lifting of her child, and considering the lapse of time between the accident and Ms. Brignac first seeking treatment for the shoulder problem, the [trial] court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident. We find no manifest error in this conclusion.”

December 1, 2011

Trial Necessary to Determine Jones Act Applicability (Part 2)

by Berniard Law Firm

Not all employees furthering a vessel’s mission are seamen. They can provide short-term or even land-based support. If so, they aren’t seamen under the federal Jones Act. Whether Kerry Becnel was a seaman when he was injured was the issue considered in Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11). The court of appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

In the U.S. Supreme Court case of Chandris, Inc. v. Latsis, the first question to determine whether an employee is a seaman is simple: did the employee “contribute[ ] to the function of the vessel or accomplishment of its mission.” Becnel did contribute. He worked 17-hour days in preparing meals, cooking food, and cleaning. He sustained injuries when he fell off a barge at the end of one of those long working days. The parties did not dispute that Becnel met this test.

The second part of the Chandris test is harder: “whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature.” Two questions arise. Did the employee have a connection to a vessel in navigation? Was that connection substantial in its duration and nature.

November 29, 2011

Court Determines if Injured Temp Qualifies Under Jones Act

by Berniard Law Firm

Kerry Becnel was injured while working on a barge, but his relationship with the vessel is not clear cut, making it difficult to determine whether he was a seaman under the federal Jones Act. In Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11), the Louisiana Fourth Circuit Court of Appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

Becnel was a cook on a quarters barge owned by Chet Morrison Contractors, Inc. (CMC). One night in 2005, he was walking from one barge to another to reach a water taxi used to get to his living quarters. Before he reached the water taxi, he fell several feet into the water. Becnel claimed that “there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel,” and the owner knew this. To add to the danger, the only light near where he fell was not working. He said he could not avoid the danger because he could not see it.

Becnel sued his employer, Coastal Catering, L.L.C., which had contracted Becnel’s services to CMC. He also sued CMC and the companies’ insurers. The battle became one between the companies and their insurers. Coastal’s insurer, State National Insurance Co. (SNIC), claimed that Coastal’s maritime general liability insurance policy did not cover CMC’s potential liability for Becnel’s injuries, but the district court decided it did.

November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

by Berniard Law Firm

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca’s list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca’s nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca’s long line of cases to rest.

The first of these restrictions was the court’s upholding of the defendent’s plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant’s plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca’s case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca’s nu

November 15, 2011

Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription

by Berniard Law Firm

The following case highlights the importance of waiting no time in bringing a cause of action that is available. In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas’s manager, accused her of stealing over $500 from the company during February and April that year. This serious accusation resulted in Goulas being tried for felony theft. The crime of theft is committed when one is involved in a trespassory taking and carrying away of the property of another with the intent to permanently deprive the true owner of that property. Goulas was subsequently acquitted of this particular theft.

Following the criminal trial and Goulas’s ultimate accquital, she filed a lawsuit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones “intentionally and negligently inflicted emotional distress” upon her, and that their accusations were “founded in malice to damage her person and reputation.” The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas’s claims were based on the defendants’ actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants’ exception of prescription and dismissed Goulas’s claims with prejudice.

Goulas appealed, alleging error on the trial court’s ruling that her defamation claim was prescribed. Goula’s reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. “It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended.” However, the court explained, the suspension of prescription applies “only to allegedly defamatory statements made by parties to a lawsuit.” In this situation, Frederick and Jones were not parties to Goulas’s criminal prosecution, so the prescription suspension did not apply. The court concluded that “since there has been no suspension of the 2008 alleged defamatory statements,” the trial court properly granted the defendants’ exception of prescription.