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police-men-with-a-group-of-people-in-a-rally-2834169-684x1024Courts are often overflowing with frivolous lawsuits. In order to remedy this, defendants can file an exception for no right of action. If granted, the lawsuit is dismissed because the plaintiff cannot prove any facts that would support the claim. 

Emanuel Smith III worked as a police officer for a housing agency in New Orleans, before being terminated by his supervisor for sleeping while on duty. Prior to his termination, Mr. Smith alleges that Silas Phipps, Jr. received information about Mr. Smith illegally from a information center for crimes and that Mr. Phipps distributed the information to coworkers, causing Mr. Smith to suffer from various injuries, including shame and humiliation. Because of this, Mr. Smith filed a complaint before his termination. 

Because Mr. Smith filed a formal complaint, he brought a lawsuit against HANO (the housing agency), his supervisors, Messrs. Anderson and Fortner, and Mr. Phipps, asserting that his action constituted whistleblowing and thus that he was terminated wrongfully. The defendants filed peremptory exceptions of no right of action. The trial court then granted the exception for not having a right to action, dismissing Mr. Smith’s claims. Mr. Smith appealed to the Fourth Circuit Court of Appeals, arguing that the trial court granted the Defendants’ exceptions in error.

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assorted-cooked-foods-inside-food-warmers-2291367-1024x683How often do you go through the buffet line at your local supermarket? Next time, you might want to think twice before digging in to your lunch.

On June 14, 2014, Cynthia Small entered Rouse’s Market hoping to enjoy a meal there. After purchasing items of prepared food from Rouse’s buffet, Ms. Small tried to enjoy her meal, but instead found a human fingernail hidden within. Ms. Small then brought a lawsuit against Rouse, claiming that she suffered from nausea, vomiting, and mental anguish on account of Rouse’s negligence. The lower court held a bench trial, which determined that Rouse’s was at fault. The court also awarded damages to Ms. Small in the amount of $2,500.00. Rouse’s appealed that decision to the Fourth Circuit Court of Appeals, arguing that the trial court erred. 

The Supreme Court of Louisiana has held in cases similar to this that an analysis looking to risk and duty should be applied. The Court stated that a food provider owes a duty of care to behave like a reasonable person who is knowledgeable about cooking and preparing food. Porteous v. St. Ann’s Cafe & Deli, 713 So.2d 454, 457 (La. 1998). On appeal, the Court must determine if the lower court erred by finding that Rouse’s breached this duty of care.

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close-up-photo-of-black-car-2470657-683x1024Summary judgments are a common tool in litigation to not only expedite the drawn out trial process, but they can also be used to cut down on the cost of a lawsuit. Yet, there are different standards about what kinds of documents can and cannot be considered when a party makes a motion for summary judgment. For two Baton Rouge individuals, their claims against an insurance company survived because of this technicality.

In June 2015, Brenda Jones was driving with her step-son, Mario Jones, Jr., when she stopped at an intersection on Florida Boulevard. Her car was rear-ended by Mr. Jason Anderson, a driver in another vehicle.  After the accident, Mr. and Ms. Jones both sued Mr. Anderson for damages arising from the accident. GoAuto Insurance Company (GoAuto), Mr. Anderson’s car insurance provider, was also included in the lawsuit. In response to the lawsuit, GoAuto filed a motion for summary judgment and sought to have the claims against them dismissed. GoAuto claimed that Mr. Anderson’s car insurance had been cancelled in May 2015, a month prior to the accident, because Mr. Anderson had failed to  pay for his insurance. Because of this, GoAuto said that it should not be liable since it was not Mr. Anderson’s car insurer when the car accident occurred. 

Further, GoAuto claimed that Mr. Anderson’s insurance was financed through an insurance premium finance agreement between Mr. Anderson and Auto Premium Assistance Company (APAC).  To support their claim, GoAuto provided the court with several documents, including affidavits by the company’s operations manager, Mr. Anderson’s insurance finance agreement, and email notices that were sent to Mr. Anderson informing him his insurance would be cancelled.  In August 2016, the Nineteenth Judicial District Court granted GoAuto’s summary judgment, finding that GoAuto correctly cancelled Mr. Anderson’s insurance after he failed to pay and affirming that he did not have insurance when the accident occurred. Additionally, the trial court found that GoAuto did not have a legal duty to give Mr. Anderson a defense in the still-pending case against him. Mr. and Ms. Jones appealed.

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multi-drug-screen-test-and-kit-boxes-3474084-1024x696On TV, lawyers are often shown dramatically acting out speeches in courtrooms and confronting witnesses. Those litigators do often have to speak and cross examine individuals, but in reality, much of an attorney’s role is to make sure the procedural and pleading aspects of a lawsuit are done correctly. Some of this procedure is based on a strategy of knowing what court to file a claim in in order to gain the best opportunity for recovery for your client. A St. Mary Parish School crossing guard’s lawsuit was dismissed when the court found that he had already filed an identical claim which had been dismissed.

Belva Webb, a school crossing guard, was instructed by St. Mary Parish School District to complete a drug screening test.  This request came after parents complained to the school district that Webb seemed “unstable” when completing his crossing guard duties. The notice of this request came on February 17, 2012, and on February 23, Webb was told that the results of the test showed his prescription medication was “safety sensitive,” so he should not be working while on these medications. Due to the results of the test, the school district informed Webb that he should not come back to work unless he was contacted to do so.

Webb and his wife brought a lawsuit in federal court against several parties and alleging a violation of his constitutional rights, and that the various defendants had conspired to have Webb fired. All defendants filed a motion to dismiss Webb’s claims, which the federal court granted on the grounds that Webb failed to state a plausible claim for relief under 42 USC §§1983, 1985, and 1986.

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abundance-bank-banking-banknotes-259027-1024x683Perhaps one of the biggest myths about the law is that you can bring a lawsuit anywhere about anything. In reality, a court must have jurisdiction in order to hear a case. Jurisdiction is the power of a legal body to make binding decisions over the people involved.  In addition to having jurisdiction over the parties to the case, the court must also have subject matter jurisdiction. Subject matter jurisdiction is the ability for a court to hear the type of lawsuit brought to it. As one East Baton Rouge man found out, contesting a court’s subject matter jurisdiction can cause quite a headache. 

Carey Holliday brought a lawsuit against the Louisiana Workforce Commission (“LWC”) in December 2015 for wages allegedly unpaid. Specifically, Holliday claimed that he deserved $5,868.34 of “premium pay” for performing administrative work which he was not paid for.

LWC claimed in response that the Civil Service Commission never authorized the premium pay and, therefore, they are not required to pay Holliday.  LWC stated that premium pay approvals are under the Louisiana State Civil Service Commission’s exclusive jurisdiction and that there was no subject matter jurisdiction of the district court to hear the case. Further, LWC claimed that Louisiana Wage Payment Act, which Holliday had filed his claims under, did not apply.

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photo-of-broken-red-car-on-grass-3368844-1024x768Car accidents are often difficult to sort out. Blame is not always easy to establish, and conflicting evidence is often prevalent. Good lawyers and judges are then called in to try to accurately present the evidence to a jury so that the jury can apportion blame to the proper parties. Such a seemingly confusing situation occurred in Baton Rouge, Louisiana when a Swiss tourist, Patrick Gisler,  was driving a rental car and collided with a car driven by Lance Boudreaux. 

Brian Ross Richard, a passenger in Mr. Boudreaux’s car, was severely injured and subsequently brought a lawsuit for his injuries against both Mr. Gisler and Mr. Boudreaux and their insurers. The jury found that Mr. Boudreaux was 100% at fault and awarded damages based on that finding. Mr. Boudreaux’s insurer, USAA, appealed, arguing principally that the court erred in allowing a certain piece of evidence, and testimony about that evidence, into the trial. That piece of evidence challenged was a hand-drawn diagram by Mr. Boudreaux purporting to demonstrate his view of the accident. The Louisiana First Circuit Court of Appeal, however, did not find any error with regard to the admittance of that evidence and affirmed the trial court’s verdict.

This case centered around the two parties’ conflicting accounts of the accident. Mr. Boudreaux was exiting a parking lot and making a left turn onto Highland Road in Baton Rouge when he collided with Mr. Gisler who was already on that road and traveling in the opposite direction. Mr. Gisler had been merging into the left hand turning lane at the time of the accident. The vehicles collided head-on. Mr. Richard supported Mr. Boudreaux in arguing that Mr. Gisler was at fault for the accident. Both parties argued their case to the jury, who weighed the evidence and concluded that Mr. Boudreaux was 100% at fault for the collision. Part of the evidentiary display was a hand-drawn diagram created by Mr. Boudreaux during his deposition. The diagram was accompanied by a photograph of the location where the accident took place and was purported to show Mr. Boudreaux’s account of the collision. The diagram was admittedly not to scale, and Mr. Boudreaux testified as much at the trial. Nevertheless, following the verdict against Mr. Boudreaux and USAA, USAA appealed, with its principle argument centering around this diagram. USAA argued that the diagram was misleading and had no value. It argued that it should not have been admitted into evidence and only served to confuse the jury.  USAA argued that this confusing diagram was the only reason for the verdict, which it felt was inconsistent with the bulk of the evidence. Thus, USAA demanded a new trial or a judgment notwithstanding the verdict (JNOV).

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building-in-city-against-sky-256490-1-977x1024Domestic abuse is a global issue that requires the services of excellent lawyers and even better judges to sort out the myriad of problems that arise in each domestic violence case. The justice system must use all of the tools at its disposal to try to protect victims from their tormentors while also sorting through murky and disturbing factual scenarios. The facts of these cases often make assigning blame difficult. The case of Yulia Sirenko and Martin Munger demonstrates the convoluted issues that arise in such disputes. 

It is a tragic tale that begins in Moscow, moves through Dubai, and ultimately ends up in New Orleans in front of a trial judge tasked with determining who is at fault, who is in danger, and what remedies are necessary to stop the cycle of violence that has enveloped a family that includes young children. Mr. Munger and Ms. Sirenko, a married couple, got into a fight one night in their New Orleans home. The fight left Mr. Munger with a bleeding bite on his chest. He went to an urgent care facility, called a lawyer who advised him to obtain a protective order, and then called the police. Ms. Sirenko was subsequently arrested and spent 20 days in jail. At trial, both Mr. Munger and Ms. Sirenko sought protective orders against each other. They both also sought custody of their young son. The trial court found Ms. Sirenko’s account of a pattern of abuse by Mr. Munger to be credible and granted her a protective order against him. Mr. Munger was prohibited from contacting her except in very specific circumstances relating to their son. The trial court also awarded joint custody, but with Ms. Sirenko being designated as the primary custodian. Mr. Munger’s request for a protection order, on the other hand, was denied based on the trial court’s finding that he did not meet the necessary criteria due to its determination that he was the aggressor. Mr. Munger appealed this ruling, arguing that the trial court’s credibility finding was erroneous. He argued that Ms. Sirenko was not a credible witness and that a protective order in her favor was not warranted. He also argued that the trial court erred in dismissing his petition for a protective order. The Louisiana Fourth Circuit Court of Appeal, however, rejected his assertions of error and affirmed the trial court’s ruling. It based this finding on the great deference owed to a trial court in credibility determinations and evidence examination. It found that the trial court did not err in determining that Ms. Sirenko’s account of abuse was credible.

The Court of Appeal stressed that “[i]n matters of credibility, an appellate court gives great deference to the findings of the trier of fact.” Franz v. First Bank Sys., Inc., 868 So.2d 155 (La. Ct. App. 2004). This deference is owed due to the fact that the trial court gets to examine the witnesses as they are giving testimony. It gets to look at the evidence first hand. It has the best view of the evidence and “the demeanor and mannerisms of the witnesses.” The Court of Appeal simply has the record created at trial upon which it can base its rulings. Particularly in cases where conflicting testimony exists, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed…” Stobart v. State through Dept. of Transp. And Development, 617 So.2d 880 (La. 1993). Thus, the Court of Appeal will defer to these determinations unless the determination clearly goes against the evidence presented. There was no indication of such an erroneous ruling here. The Court of Appeal pointed out how thoroughly the trial court examined the evidence and compared it with the testimony of the witnesses. The evidence of bruises and other injuries, documented in photographs, lined up with Ms. Sirenko’s testimony. The trial judge clearly explained how the evidence was linked together with that testimony. Thus, the Court of Appeal found no error in the granting of a protective order to Ms. Sirenko under Louisiana’s Domestic Abuse Assistance Act. La. R.S. 46:2131. The Court of Appeal also upheld the trial court’s decision to dismiss Mr. Munger’s protective order. The trial judge determined that Mr. Munger was the aggressor and the evidence supported that determination. Once again, the Court of Appeal deferred to the trial court’s analysis of the evidence.

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photo-of-person-holding-black-pen-959816-1-1-1024x682Sometimes, the most complicated cases can have the most simple resolution. For West Baton Rouge plaintiffs who sued mining companies for extracting resources underneath their property without their knowledge, the ultimate outcome of the lawsuit rested on the plain meaning of statutory language.

TMR Exploration, Inc. was a mining company owned by Raymond Lasseigne. Since surface property (houses and land) are often legally separate from mining rights (the resources underneath the surface), the Louisiana Commissioner of Conservation granted TMR a permit in 2007 to extract minerals from A. Wilbert’s Sons, LLC’s property. The only trouble was that this property belonged to no A. Wilbert but rather the descendants of a Peter and Elnora Hill, specifically Calvert Hill. This oversight resulted in TMR slant drilling into Mr. Hill’s property without his knowledge. This type of drilling is set up on one property and then drilled through the ground at an angle to access resources on a different property. Accordingly, Mr. Hill had no knowledge that TMR (and successive mining companies) had extracted minerals two miles underneath his property for six years.

Mr. Hill brought this lawsuit against TMR and Mr. Lasseigne in December of 2013, claiming that Mr. Lasseigne knew it wasn’t A. Wilbert’s Sons, LLC’s property but rather knew it was Mr. Hill’s. Mr. Lasseigne countered this, arguing that TMR’s involvement in mining underneath Mr. Hill’s property ended in June 2010 and was passed on to a different mining company. According to Louisiana statutes, one cannot sue the head of a business directly for negligence that his or her business caused “more than three years from the date of the alleged act.” La. R.S.12:1502. Mr. Lasseigne’s involvement in the mining ended June of 2013, six months before Mr. Hill brought this lawsuit. Accordingly, the Eighteenth Judicial District Court ruled in favor of Mr. Lasseigne, and Mr. Hill appealed to the Louisiana First Circuit Court of Appeal.

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74-Email-06_24_19-picture-1024x639The statute of limitations, by definition, is the timeframe set by a state or federal legislative body in the creation of a law which governs when a party must file a claim to enforce his or her right or seek redress after injury or damage. The statute of limitations on personal injury claims varies from state to state. The standard statute of limitations for personal injury cases is three years from the day the injury or damage, in which the claim arises, took place. Mr. Landis J. Camp’s appeal from the Twenty-Fourth Judicial District Court to the Fifth Circuit Court of Appeals for the State of Louisiana against Dr. Chris J. DiGrado and Lammico Insurance Company exemplifies the vital importance of filing a personal injury claim within the statutory period of a given state.

In 2002, Mr. Camp injured his shoulder while working on a job in Maryland. Although Mr. Camp immediately began compensation proceedings with the Maryland Workers’ Compensation Commission, he did not seek treatment from Dr. DiGrado until 2005. Dr. DiGrado performed two shoulder surgeries on Mr. Camp. The first surgery took place in January 2010, followed by a second surgery in March 2011. At this point, Mr. Camp had little improvement of his injuries and was aware that Dr. DiGrado performed his surgeries negligently. However, Mr. Camp did not file a lawsuit against Dr. DiGrado and the insurance company until 2015, after the statute of limitations had expired for his personal injury medical malpractice claim. Therefore, the district court dismissed Mr. Camp’s claims against Dr. DiGrado and the insurance company for failure to state a claim within the statutory period. Mr. Camp subsequently appealed to the Fifth Circuit Court of Louisiana, which ultimately affirmed the district court ruling and dismissed Mr. Camp’s claim because he did not file his claim more than three years after he ceased treatment with Dr. DiGrado. See Camp v. Digrado, 216 So. 3d 1055 (La. Ct. App. 2016).

 In Louisiana, La. R.S. 9:5628(A) sets the statute of limitations, or “prescriptive period,” for personal injury resulting from patient care, including medical malpractice claims. According to this Louisiana law, a personal injury claim arising from patient care must be filed “within one year from the date of the alleged act omission, or neglect; however…claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.”

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grocery-cart-with-item-1005638-768x1024Dollar stores carry a wide variety of merchandise, and stacking these items on shelves saves space. When stocking, employees should always take reasonable care to stack items in a safe manner so they do not fall off the shelf and potentially injure shoppers. For one Slidell man, however, an everyday grocery trip to Dollar General turned into a 4-year, $50,000 lawsuit.

Charles Frazier went to Dollar General one August day to buy a quart of oil; however, when he went to grab the bottle, plastic tote lids on the shelf above him slid off, bumped him in the neck, and caused him to fall onto one knee. After getting up, he reported the incident to a store manager. Then, nearly a year later, he sued Dollar General for $50,000 in injuries, claiming that he suffered physical pain, mental anguish, medical expenses, and lost wages. According to his lawsuit, Dollar General was negligent in allowing its merchandise to fall off the shelf and onto customers.

These types of lawsuits are appropriately known as falling merchandise cases, and the statute that governs ensuing negligence claims is La. R.S.9:2800.6(A). The Louisiana law provides that a merchant, like Dollar General, must use “a reasonable effort to keep the premises free of any hazardous conditions.” When brought to trial, the Twenty-Second Judicial District Court of Louisiana ruled in favor of Mr. Frazier, but applied Section B of this statute. This section, instead of requiring an injured party to show that a hazardous condition existed, only requires a showing that the “condition presented an unreasonable risk of harm.” La. R.S.9:2800.6(B). The defendant, Dollar General, appealed this decision to the Louisiana First Circuit Court of Appeal.

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