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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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bed-empty-equipments-floor-236380-1024x678Medical Malpractice lawsuits can be extremely complicated and fact-specific. The general Louisiana law requires claims to be brought within one year of treatment. The Louisiana law also distinguishes liability based on intentional actions from negligent actions. The following case illustrates how in-depth a medical malpractice claim can become.

The Plaintiff, Mr. John Mack Evans, appealed the dismissal of his medical malpractice suit against Heritage Manor Stratmore Nursing & Rehabilitation Center (Heritage Manor). Mr. Evans was admitted to Heritage Manor by his treating physician, Dr. Robert Hernandez, after suffering a stroke and becoming paralyzed on one side. Dr. Hernandez was the facility’s medical director and determined that Mr. Evans required changing often to avoid developing sores. Dr. Hernandez also ordered speech, physical and occupational therapy. Ms. Samantha Edwards, a Certified Nursing Assistant, administered care to Mr. Evans and struck him in the eye when his resistance led to him hitting her. Ms. Edwards was terminated immediately. Mr. Evans suffered bruises and bleeding around his eye and nose. When Mr. Evans became abusive, he was transferred to Brentwood Hospital to see a psychiatrist.

The Department of Health and Human Resources (DHH) determined that Heritage Manor hired Ms. Edwards despite a conviction for battery and without checking her references. A medical review panel determined that Heritage Manor was partly responsible for placing Ms. Edwards in the role that injured Mr. Evans. Mr. Evans filed a lawsuit for medical malpractice against Heritage Manor for (1) physical injuries; (2) breach of fiduciary duty; (3) failure to provide adequate care; and (4) failure to supervise and train employees. Because Mr. Evans filed his complaint two years after he sustained injuries, Heritage Manor argued that his lawsuit was untimely. Heritage Manor further argued that injuries from battery do not fall under medical malpractice protections.

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alcohol-bar-black-background-close-up-602750-972x1024The majority of states have what are known as “dram shop laws”.  These laws address liability if someone is injured by a drunk person after consuming alcohol at an establishment.  Most of these laws allow for the bar or other entity that served alcoholic beverages to be sued. Louisiana’s version of the law is quite unique, actually doing the opposite.  The bar or other business must meet certain requirements to be afforded this essential immunity. The Fifth Circuit Court of Appeal in Louisiana recently considered such a situation.  

In 2013, Arthur Tregre, Jr., the plaintiff, was driving in Lake Charles Parrish.  The car ahead of him, driven by Dallas Veillon, was making a left turn when it was struck by a police car coming the opposite direction.  This caused the same police car to crash into Mr. Tregre, killing the officer and injuring Mr. Tregre. Mr. Veillon had been intoxicated at the time of the accident.  In fact, he had been just forcibly removed from the premises of a nearby bar, Boogie’s Lounge. Mr. Tregre sued the Sheriff, the bar and its bartender, and the bar’s insurance company.  The officer’s widow was also a plaintiff in the case. Both the insurance company and Boogie’s Lounge filed summary judgment motions to have the case dismissed. In 2016, the trial court granted these motions, dismissing the claims against the bar and its insurer.  Mr. Tregre, as well as the officer’s widow, appealed.

The law in Louisiana, fittingly called the “Anti-Dram Shop Act”, serves to remove the burden from establishments that serve alcohol.  The issue for the Fifth Circuit was whether or not there was any reason this law should not be applied. The law in question specifically provides that no person or employee of the person that holds a valid liquor permit and serves alcohol is liable for any injuries caused by a customer while off the premises.  La. R.S. 9.2800.1.  It also states that the proximate, or legal, cause of any such injury is the action of the intoxicated person.  The accident occurred on a nearby road, well outside the premises of Boogie’s. Still, Mr. Trevor argued that the employees of Boogie’s should have known better than to eject Mr. Veillon to the road where he would most likely drive and cause an accident.  Here, the Fifth Circuit applied the Anti-Dram Shop act, stating that it was Mr. Veillon’s actions of imbibing in large quantities of alcohol and then choosing to drive that caused the accident. Indeed, the law in Louisiana was enacted in order to put the blame on the intoxicated person.  Aucoin v. Rochel, 5 So.3d 197, (La. Ct. App. 2008).

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person-writing-on-notebook-669615-1024x678Non-competition, or non-compete, clauses are a common part of business and employment agreements.  They serve to prevent one party from taking knowledge or trade secrets to a competing business. Like any contract, these agreements are sometimes scrutinized to make sure they are actually fair to all parties.  Courts will not uphold such clauses that are so limiting as to be unjust. In 2017, the Fifth Circuit of Louisiana considered such an agreement.  

The parties to this case, Frederick Yorsch and Stephen Morel, were business partners in Metairie, Louisiana.  They ran NOLA Title Company, L.L.C., which provided services related to the selling of real estate, such as title insurance.  They also began a separate company, My Tax Sale Resources, L.L.C., which provided tax services related to real property sales.  Both parties signed an agreement that included a non-circumvention and non-competition clause. At some point, Mr. Morel began working for CivicSource, a competing company.  Mr. Yorsch, the plaintiff, sought to have the court enforce the clauses within their agreement with an injunction . The trial court ruled that the clauses were too restrictive on employment opportunities and were unenforceable.  Mr. Yorsch appealed.

The issue for the Fifth Circuit was whether such broadly written clauses are impermissible.  Louisiana law, as a policy, seeks to prevent people from losing their ability to work. Restored Surfaces, Inc. v. Sanchez, 82 So.3d 524 (La. Ct. App. 2011).  Thus, courts will not enforce any contract or agreement that would restrain anyone from “exercising a lawful profession, trade, or business of any kind” except in very specific circumstances.  La. R.S. 23:921.  One exception is that members of limited liability companies may agree not to be involved in similar business as the company of which they are members within a certain parish or municipality.  La. R.S. 23:921(L).

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man-standing-on-parking-lot-163772-1024x576If you are a homeowner, the number of security measures you take to protect your house is likely largely influenced by the safety of your area. For example, if there’s a lot of crime in the area or a lack of good lighting on your street at night, you will probably more carefully guard your home. Contrarily, if you trust your neighbors and have a vigilant neighborhood watch group, you might even feel comfortable leaving your doors unlocked. Businesses think about many of the same factors when deciding how much security their store needs. One major difference between a home and a business is that a business’s lack of security can potentially make it liable for negligence if a crime happens on their property. 

Such was the case before the United States Court of Appeals for the Fifth Circuit. Jerry and Susan Simpson sued Dollar Tree after Mrs. Simpson was robbed in the parking lot of their Monroe, Louisiana, location. They brought the lawsuit to the District Court for the Western District of Louisiana, arguing that Dollar Tree failed to properly meet their duty to protect her and other customers from harm while on their property. The District Court didn’t think that the Simpsons had shown that there was a real question of material fact as to if Dollar Tree was negligent. As a result, the District Court granted Dollar Tree summary judgment and dismissed the case.

The Fifth Circuit then had to consider the Simpson’s appeal of this summary judgment. Like all other summary judgment appeals, the Fifth Circuit just needed to determine to if reasonable people could come to different conclusions on the facts of the case. If so, then it was inappropriate to grant summary judgment. See Fed. R. Civ. P. 56(a).

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man-wearing-black-officer-uniform-1464230-1024x683It’s almost impossible to watch a movie or TV show about the police or crime without hearing the phrase “Miranda Rights.” Even if most viewers don’t know the U.S. Supreme Court case Miranda v. Arizona, which outlined those rights, viewers are aware that upon arrest, a person has multiple rights which they are entitled to have read to them. This same concept is present in Louisiana law as well. If an arrestee isn’t read his rights in full, the arrest could be invalid. 

Brian Litton alleged that he was not read his rights in full when he was arrested under suspicion of drunk driving on July 13, 2015, in Bossier Parish by Deputy Tim Wooten. In Louisiana, there are multiple things a police officer must do after he arrests a person under suspicion of DUI. See La. R.S. 32:661(C). After officers determine there are reasonable grounds to arrest someone for drunk driving, they can subject the arrestee to a test to determine what their blood alcohol percentage is. However, they must first read to the arrestee a form stating both the rights he has, but also that if he refuses the chemical test his driver’s license can be suspended for a year just for refusing the test. See La. R.S. 32:667. Once those rights and consequences are read to the arrestee, he must sign the form as well. Mr. Litton signed the form but refused to take the test. Although Mr. Litton signed the form, he claims he was unaware that his license would be suspended for refusing the test because the officer did not read to him that part of the form.

When this case came before the Second Circuit Court of Appeal of Louisiana, a trial court had agreed with Mr. Litton and reinstated his license. The Louisiana Department of Public Safety and Correction, Office of Motor Vehicles, appealed to the Second Circuit. The decision was a fairly black and white affair. Deputy Wooten himself testified at the initial trial that he gave Mr. Litton the form but was unsure if prior to that he had read the entirety of the form to Mr. Litton. Mr. Litton took it a step further by saying he was sure that Deputy Wooten had not read to him the portion of the form relating to the potential loss of his license. There was no paper trail or any other proof that Deputy Wooten read the form to Mr. Litton in full. Because of that, the Second Circuit affirmed the trial court’s decision that the suspension of the driver’s license was invalid since Deputy Wooten did not fully follow the legal procedure for such an arrest. 

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