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jury

Even a minor car accident can result in injuries causing pain and disability. Some injuries are more difficult to prove than others. When a personal injury lawsuit resulting from a car accident goes to trial, a jury often makes determinations as to the extent of the injuries and the credibility of witnesses. If the court does not believe the credibility of your witnesses sometimes that can lead to your case being dismissed. Such determinations were made by a jury in a personal injury lawsuit brought by Andre Stevenson against Sandra Serth and her insurer, Travelers Casualty Insurance Company of America.

In November 2011, Andre Stevenson was stopped at a gas station waiting to pull out onto Veterans Memorial Boulevard. From the eastbound direction, Sandra Serth, in her PT Cruiser, ran a red light and struck another driver in a Nissan Maxima. This collision produced a domino effect sending the Maxima into Mr. Stevenson’s stopped vehicle. Mr. Stevenson claimed that he suffered neck and back injuries as a result of the collision. At trial, he testified as to the resulting injuries. He asserted that he did not have any pain before the accident, but started having neck and back pain after the accident occurred. In addition, he testified that he began treating the pain with an orthopedist and was given epidural steroid injections twice in his back and once in his neck. After Mr. Stevenson completed his testimony, his attorneys did not call any further witnesses. His medical records and the orthopedist’s two depositions were admitted into evidence. However, the orthopedist’s depositions were not read to the jury and pursuant to La. C.C.P. art. 1794(B), the depositions were not allowed into the jury room. Thus, it is unclear what effect, if any, the orthopedist’s depositions had on the jury.

On the other side, the defense produced as one of their witnesses an expert in neurosurgery. The expert reviewed Mr. Stevenson’s cervical and lumbar MRIs in addition to the reports of the radiologists who previously reviewed those same MRIs. The defense’s expert noted that there were some abnormalities in Mr. Stevenson’s neck, but made no statements or indications as to the significance of those abnormalities.

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nurse

When you have developed a medical condition or are injured during the course of your employment, you could be entitled to relief under Louisiana’s worker’s compensation laws. However, you must be able to show that the injury was caused while you were performing your job. Louisiana law requires the injured party to show, more likely than not, that the injury was caused as a result of the employment. If you’re unable to satisfy this burden of proof, you will fail to qualify for benefits.  So how do you go about proving that your injury was work related and therefore qualifies you for workers compensation benefits? The following case out of Jefferson Parish Louisiana helps answer that question.

Take, for example, Virginia Mulder: Ms. Mulder was a registered nurse employed at East Jefferson Hospital’s rehabilitation wing in Metairie, Louisiana. Her daily duties included lifting patients to help them complete various tasks. In December of 2013, Ms. Mulder filed a claim for worker’s compensation claiming that she had developed chronic pain in her back and biceps as a result of repetitive lifting. She alleged that the injury began to develop on April 30, 2013. She sought to recover worker’s compensation benefits in the form of medical expenses, indemnity, penalties, and other costs.

At trial both parties stipulated that Ms. Mulder was an employee of the hospital at the time the injuries occurred. Ms. Mulder presented several witnesses who aided the Worker’s Compensation Judge (WCJ) to determine that Ms. Mulder’s injuries were caused by her work as a nurse. In particular, the testimony of Ms. Mulder’s doctor, Dr. John Nitche, carried great weight in the eyes of the WCJ. While Dr. Nitche admitted he had never seen any other nurse with the same or similar condition, he asserted that there was a causal connection between her work and the condition affecting her back.

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crowd shopping

Sometimes going shopping on Black Friday can be dangerous, as Sylvia Scott learned when she went shopping at the Dillard’s Department Store at Esplanade Mall in Kenner, Louisiana and slipped on a plastic sign that had fallen to the floor.  A business might be liable for such a misfortune if they are aware of a hazard and have not taken the proper steps to remedy the hazard before a customer gets injured.  However, sometimes an accident is just an unfortunate accident, and that is why it is important for all parties, whether they are an injured customer or a business worried about facing a lawsuit, to seek out excellent lawyers to represent their interests when someone gets hurt. The following case out of Jefferson Parish discusses the burdens Louisiana Courts place upon plaintiffs to show that their accident was no accident at all.

On the morning of the incident, Ms. Scott went to Dillard’s to take advantage of the store’s Black Friday deals.  She entered the store at 8:30 a.m., just a half hour after the store had opened, and slipped and fell on a “cling sign” that had fallen off the door.  Ms. Scott did not accept medical attention on the scene, but eventually needed pain management, physical therapy, and surgery for the injuries she suffered due to the fall.  It was at that point that Ms. Scott sued Dillard’s for her injuries, alleging that Dillard’s did not exercise reasonable care in inspecting the premises and was therefore liable for her injuries.

In Louisiana, the plaintiff bears the initial burden of proving each element of a slip-and-fall claim. See La. R.S. 9:2800.6(B). A merchant owes a duty of care to keep the premises in a reasonably safe condition, including the aisles, passageways, and floors.  In order for the merchant to be liable for an injury caused by a slip-and-fall, several elements must be established.  First, the condition must have presented an unreasonable risk of harm and the risk must have been reasonably foreseeable.  Second, the merchant must have created the condition or had actual or constructive notice of it, prior to the accident occurring.  Finally, the merchant must have failed to take reasonable steps to remedy the condition.  Essentially, the plaintiff must show that the condition was dangerous and it was foreseeable that it could cause an injury.  The merchant must have either caused the condition, known of its existence, or should have been aware of its existence if properly monitoring the store.  Finally, the merchant must have neglected to take action to fix the condition or cordon off the area where it existed so that customers are reasonably protected from injury.  The plaintiff must establish all of these elements, and failing to establish a single element will be fatal to the claim.

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abandon house
In litigating or defending against claims, timing and rule compliance matters. A failure to timely bring a claim can forfeit your right of recovery. A failure to comply with the time limits and requirements of discovery rules can have a similar effect. When parties fail to take steps to prosecute or defend a claim in trial court in three years, the claim is considered abandoned. A recent case from the Louisiana Supreme Court discusses the “abandonment rule” and what sort of steps are required to avoid dismissal of a case.

In 2008, Bryon Guillory and Margo Guillory brought a lawsuit against Pelican Real Estate, Inc. and St. Paul Fire and Marine Insurance Company. In their, the Guillorys claimed that he purchased a home with a redhibitory defect (a defect so substantial that his home was virtually unusable) voiding or nullifying the sale. The issue in the case was not the underlying merits of Mr. Guillory’s claim, but a rule of discovery. Discovery is the process of obtaining evidence for use at trial.

On December 17, 2012 the Guillorys served written discovery on Pelican, but failed to serve it on the St. Paul. The Guillorys then scheduled a discovery conference and sent the notice of the conference to Pelican only. Counsel for the Guillorys and Pelican participated in the discovery conference on January 28, 2013. Perhaps feeling a bit left out, St. Paul filed an ex parte motion to dismiss the Guillorys’ lawsuit. St. Paul argued that under La. C.C.P. art. 561, the lawsuit was abandoned because no steps were taken in prosecution or defense of the matter in more than three years since the taking of depositions on March 4, 2010. The Trial Court granted St. Paul’s motion and signed an ex parte judgment of dismissal.

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baton rouge
Damages are the award of monetary compensation that the law imposes on a defendant for a violation of law or a breach of a legal duty. Generally, damages seek to remedy the harm done to the plaintiff by the defendant. The law recognizes several categories of damages including general damages, specific damages, punitive damages, and damages for loss of consortium. A recent case out of the Louisiana First Circuit Court of Appeal reviews the evidentiary requirements of damages claims.

On August 10, 2009, Ms. Tekisha Greenup’s vehicle rear-ended a Ms. Rachel Howard’s vehicle in Baton Rouge, Louisiana. There was no dispute that Ms. Greenup was 100% at fault in causing the accident. Ms. Greenup was insured by United Services Automobile Insurance Association (“USAA”) with policy limits of $25,000.00. Ms. Howard had uninsured motorist coverage through a State Farm policy with limits of $10,000.00. Ms. Howard received her policy limit of $10,000.00 and medical benefits of $5,000.00 from State Farm. She received no payment from USAA.

Ms. Howard and her husband then filed a petition for damages (i.e. lawsuit) in the 19th Judicial District Court of the Parish of East Baton Rouge. In her petition, Ms. Howard alleged that she sustained serious injuries to her neck, back, and head as a result of the injury that necessitated medical treatment. Before trial, the defendants filed a motion to adjudicate credit, arguing that any judgment against them in excess of its policy limits should be reduced by $15,000.00, the amount the Howards recovered from State Farm. The Trial Court agreed and granted the defendants’ motion. At the end of the trial, the jury awarded Ms. Howard a total of $42,000.00 in past medical expenses, lost wages, and general damages. The jury denied Ms. Howard’s claim for loss of consortium damages. The $42,000.00 was reduced by the credit of $15,000.00 resulting in a total award of $27,000.00. The Howards appealed, challenging primarily the award of damages.

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estatehouse-1218427
In Louisiana, you cannot “disinherit” your children. What does this mean exactly? It means that upon death, Louisiana law will allow a decedent’s children to share in his or her estate, even if the decedent left those children out as beneficiaries. The left-out children are called “forced heirs,” and will take a portion of the decedent’s estate (called the “legitime” or “forced portion”) unless the decedent has a just cause for leaving them out. La. C.C. art. 1494. A recent case of the Louisiana First Circuit Court of Appeal describes the rights of forced heirs to take in a decedent’s estate.

This case arose out of the death of Geronimo Ji Jaga, and the division of his annuity account at Western National Insurance Company. Mr. Ji Jaga had five children from various marriages: Shona Pratt, Hiroji Pratt, Nikki Michaux, Kayode Ji Jaga, and Tkumsah Geronimo Jaga. He named his eldest two children, Shona and Hiroji (“the Pratts”), as the beneficiaries to the annuity. After Mr. Ji Jaga’s death, one of his surviving spouses – Jojuyounghi Cleaver – filed a lawsuit in the Parish of St. Mary against Wester National alleging that her son, Kayode, should be considered a forced heir and entitled to share in the annuity.

In response, Western National filed asserted that the Pratts, the named beneficiaries of the annuity, should be joined in the lawsuit. After Mrs. Cleaver amended her petition adding the Pratts as defendants, the Pratts filed, among other exceptions, a peremptory exception of no cause of action. Tkumsah’s mother, Laila Minja, later filed a petition to intervene. She claimed that Tkumsuh was also a forced heir. The Pratts filed the same exceptions against Mrs. Minja as they did against Mrs. Cleaver. The Trial Court sustained the Pratt’s exception of no cause of action and dismissed Mrs. Cleavers’ and Mrs. Minja’s claims. The Trial Court considered the Pratt’s other exceptions as moot. Mrs. Cleaver and Mrs. Minja appealed the Trial Court’s judgment.

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helicopter-1450413
Under Louisiana workers’ compensation law, employees injured in on-the-job accidents may be entitled to workers’ compensation benefits. If awarded by a court, such benefits must be paid as soon as possible. When an employer fails to pay benefits in a timely manner, penalties and attorney fees may be assessed against the employer. Such penalties are governed by statute. A recent decision of the Louisiana Third Circuit Court of Appeal discusses the application of penalties in workers’ compensation cases.

In 1997, Homer Landry was injured while employed by Petroleum Helicopters, Inc. (“PHI”) a corporation headquartered in Lafayette, Louisiana. The injury aggravated a pre-existing seizure condition and damaged his brain’s frontal lobes. This caused him to experience serious behavior changes, such as impulse control issues. His treating physicians concluded that he needed to be institutionalized for his own well-being. Mr. Landry’s attorney and counsel for PHI hired Dr. Cornelius Gorman, a licensed vocational rehabilitation counselor and certified life-care planner. Dr. Gorman then sent Mr. Landry to be evaluated by the staff at NeuroRestorative Timber Ridge, a facility in Benton, Arkansas that houses and treats people with brain injuries. Mr. Landry was accepted at the facility and his treatment has included environmental engineering and medication. Dr. Gorman created a life care plan for Mr. Landry that estimated the cost of his future care would be approximately $14 million and that the care Mr. Landry’s wife gave him was $13.4 million.

At trial, the Workers’ Compensation Judge (“WCJ”) ordered that PHI’s insurer pay for Mr. Landry’s treatment at Timber Ridge. The WCJ also awarded Mr. Landry $2,000 in penalties for the underpayment of his indemnity benefits, $2,000 in penalties for delaying Mr. Landry’s admission to Timber Ridge, and $2,000 in penalties for each late payment of several medical bills. The penalties were subject to the $8,000 cap on pursuant to La. R.S. 23:1201(F). The WCJ denied Mr. Landry reimbursement for the care his wife gave him between his accident and the time he was admitted to Timber Ridge. Mr. Landry appealed the cap on penalties and the WCJ’s denial of his claim for reimbursement of his wife’s attendant care. More specifically, Mr. Landry argued that the Trial Court erroneously: (1) applied res judicata; (2) failed to apply the law in effect on the date of the accident; (3) failed to award multiple penalties; (4) failed to award Tena Landry damages for attendant care; and (5) failed to grant his Motion to Accelerate benefits.

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house-fire-1-1519590
You hear it all the time and a good lawyer will tell you: don’t sign anything before reading it. Most people know this, but few people actually practice it. However, following this old adage can save you from many headaches and in the case of Mrs. Theodora Lourie it could have saved her time and money.

Mrs. Lourie purchased a Chardonnay Village Condominium unit in Kenner, Louisiana in 1997. In late 2010 a kitchen fire damaged the interior of the unit and much of Mrs. Lourie’s personal belongings. Fortunately, Mrs. Lourie had homeowner’s insurance through State Farm, which paid her $79,175.95 for damages and living expenses. About one year after the fire, Mrs. Lourie filed a petition for damages against the Chardonnay Village Condominium Association (“Association”). She wanted the Association to reimburse the payments State Farm made to her and sought additional damages that were not covered under her State Farm policy. In total, Mrs. Lourie wanted a judgment in her favor of $113,000.

The Trial Court granted summary judgment in favor of the Association, i.e., there was no genuine issue of material fact and the Association was entitled to judgment as a matter of law. The Louisiana Fifth Circuit Court of Appeal agreed with the Trial Court’s determination. The issue here is whether Mrs. Lourie had actual notice that the Association would not provide insurance coverage for individual condo units. If she had actual notice, then the Association was off the hook, so to speak.

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hospital-s-corridor-1631146-1024x765If your unlucky enough to slip and fall at a business the first person you would think about suing is the business itself. However, businesses today contract out many aspects of cleaning and other maintenance and in doing so also alleviate their responsibility for negligence on their property.  The following case out of St. Tammany Parish discusses the concept of who might be at fault for a slip and fall when the cleaning of floors is contracted out to another party.

In 2005, Joy Smith was visiting a friend who was a patient at Northshore Regional Medical Center (Hospital) in Sidell, Louisiana. As Ms. Smith was walking down the hall, she slipped and fell in some water near where the floors had just been buffed. Ms. Smith filed a lawsuit against the Hospital alleging they were negligent in failing to properly warn her of the hazard that caused her fall. The Hospital answered the lawsuit and filed a third party demand, adding as third party defendants Hospital Housekeeping Systems (HHS), and the employee of HHS who had just buffed the floor. The Hospital had a contractual relationship with HHS to provide the Hospital with housekeeping services for the hospital.

The Hospital filed a motion for summary judgment in the lower court seeking to have Ms. Smith’s claim against the hospital dismissed. The Hospital alleged that it was merely the property owner, and it should not be held liable for conditions created by HHS as they contracted with them to clean the floors.  See LSA-C.C.P. art. 969. Within the contractual obligations of the Hospital and HHS, HHS was responsible for maintaining the area where Ms. Smith had fell. The lower court agreed, and granted the summary judgment.

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Pollution
Louisiana has a storied history with oil and gas drilling. Tracts of land have been drilled all over the state in search of black gold. Typically the oil and gas companies are liable to clean up any pollution and restore the land as it was pre-drill when they are finished extracting minerals from the earth. So what happens if you purchase property that was once mined for resources but was not properly restored.  Do you have a right to go after the driller to clean up the pollution?  The following case out of St. Martin Parish discusses that question in the context of the “subsequent purchaser” rule and a lack of assignment of rights when the property was transferred.

Vincent Bundrick owned land that was previously leased to oil companies that located in St. Martin Parish. Prior to Bundrick’s ownership of that land it was subject to oil and gas drilling. Bundrick alleged that the companies who drilled on the land contaminated the property and therefore he filed a lawsuit against those companies seeking restoration of the property to its original condition and further damages.

The Defendants disputed the allegations of Bundrick and subsequently filed a motion for summary judgment stating that Bundrick had no legal right to bring such claims.  Essentially a motion for summary judgment is a legal filing wherein one party seeks to avoid a trial by arguing that there are no facts in dispute as to the specific legal issue which that party believes should allow them to escape liability.  In this case the Defendants argued that the “subsequent purchaser” rule in Louisiana did not allow Bundrick any legal right to establish claims against them.  The trial court held a hearing on that motion and ruled in favor of the Defendants.  Bundrick believed the ruling was incorrect and appealed the decision to the Third Circuit Court of Appeal for the State of Louisiana.

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