Louisiana Personal Injury Lawyer Blog

January 22, 2020

Hazards Causing Elderly Woman’s Fall at Metairie Gas Station Ruled Open and Obvious

blur-dusk-evening-gas-station-399635-1024x681 It is commonly thought that when an injury occurs, a harmed individual can recover monetary damages for the injuries he or she sustained. However, if a risk is seen as “open and obvious,” there is a duty on individuals to exercise ordinary care. In some cases, individuals who fail to do this are prevented from recovery even if they are injured.

As she got older, Nancy Morel had difficulties walking and began using a cane after her 2001 knee replacements. When at a Shell gas station in Metairie, Louisiana, on October 25, 2014, Morel noticed some hoses next to the curb in the entrance of the gas station’s door entrance. Morel walked in the store to pay for her gas. Upon exiting the store, she attempted to move the hoses with her cane, but ended up catching her right foot in the hoses and falling. Morel brought a lawsuit against the Shell’s station owner, Cheema Properties LLC and Cheema Three LLC (“defendants”) for her injuries sustained in the fall.

The defendants filed a motion for summary judgment, putting forth an argument before the court that the hoses were “open, obvious, and plainly visible” and that they were not an unreasonable risk of harm to an individual exercising ordinary care. Morel countered by stating that a summary judgment motion should not be granted because there were facts about the situation which her and the defendants disagreed upon, the gas station video surveillance footage was not preserved even after a request by Morel’s attorney to do so, and there was a dispute about the supervision of the employee who left the hoses by the curb. The district court relied on Morel’s own deposition, and granted the summary judgment motion after finding that the hoses were open and obvious.

January 21, 2020

Does Scheduling A Court Status Conference Stop Case Abandonment?

by Berniard Law Firm

When a lawsuit is filed for an injury, most people assume that the claim will be sorted out in court in a timely manner. Sometimes, however, a case can get significantly delayed by years, even before a trial has occurred. In these instances, it is also possible that the case becomes “abandoned” if neither side takes any action towards furthering the course of the lawsuit. For one West Feliciana woman, the defense tried to do just that and claimed case abandonment.

In September 2005, Sheryl Cummings filed a lawsuit individually and on behalf of Shedrick Cummings, alleging that Shedrick became a quadriplegic after sustaining severe injuries from a football game at West Feliciana High School Stadium. Cummings named the West Feliciana Parish School Board (WFPSB), West Baton Rouge Parish School Board (WBRPSB), and several insurance companies, including AIG Insurance (National Union), claiming that there was insurance accident policy coverage of $1,000,000.

The district court judge dismissed claims against several insurance companies and severed the claim from WFPSB from the claims against National Union. In July 2009, all of Cummings’ claims against WFPSB were dismissed. In January 2016, National Union filed a motion to dismiss Cummings’ claims, alleging abandonment because of no steps taken on the case in over three years. The trial court granted the motion and dismissed the claims. Shedrick Cummings appealed the decision to the State of Louisiana First Circuit Court of Appeal.

January 20, 2020

Lake Charles Lawsuit Explains How A Hospital Could Be Liable for a Slip and Fall

by Berniard Law Firm

grocery-cart-with-item-1005638-768x1024 Slip and Fall lawsuits commonly arise in the grocery store or restaurant setting. And in such cases, Louisiana’s statute on merchant liability apprises merchants of how they could be found liable for any resulting injuries. What happens however when a person falls and injures themselves in a commercial but non-merchant location? Are these lawsuits analyzed under general negligence law? A recent case involving a hospital in Lake Charles provided an entirely separate standard.

Ronnaesa Reider was visiting Christus St. Patrick Hospital in Lake Charles, Louisiana when she slipped on an unknown substance and sustained a knee injury. Just prior to Ms. Reider’s fall, Jamon Thomas, an employee of Hospital Housekeeping Systems, LLC (“HHS”), used a scrubber machine on the floor where Ms. Reider fell. Ms. Reider alleged that the machine left water and cleaning fluid on the floor causing Ms. Reider’s fall. Mr. Thomas testified that he noticed a wet streak on the floor and concluded his machine must have failed to dry up the liquid. However, an unidentified person also stepped on the alleged wet spot just five seconds prior to Ms. Reider and he did not fall.

Ms. Reider filed a lawsuit against HHS and the Hospital alleging negligence in allowing the liquid to remain on the floor and for failing to warn about the liquid’s presence. Ms. Reider filed a motion for summary judgment against HHS asserting that HHS was completely at fault for the fall. In support, she included video surveillance showing the scrubber machine in the area just prior to her fall. She also included her own deposition testimony as well as Mr. Thomas’ deposition. In response, HHS asserted the video only showed a clean, clear hallway and that there were inconsistencies in all of the depositions. Specifically, portions of Mr. Thomas’ deposition asserted there was no liquid at all on the floor. Ms. Reider further provided conflicting accounts of the amount of water on the floor: ranging from a few droplets to a five foot streak.

January 19, 2020

Must a Self-Insurance Fund Cover Injuries from Workplace Fistfights?

by Berniard Law Firm

black-calculator-near-ballpoint-pen-on-white-printed-paper-53621-1024x603 Businesses face many liability risks or risks of being sued. These include injuries to their employees on the job. Workers’ compensation is designed to address such injuries. In Louisiana, businesses in specific industries may agree to pool together with one another in order to “self-insure” these claims. This means that the businesses pay the claims from a specific fund rather than handle them through outside insurance companies. The concept of indemnity is important in these sorts of arrangements. Indemnity involves the paying back of money or the defense in court of one party by the other. Of course, money is not unlimited, and organizations providing may exclude certain coverage in particular situations. The business affected may not agree with this. The Fourth Circuit Court of Appeal recently considered such a dispute.

Two employees of The Columns Hotel in New Orleans got into a physical altercation while at work. One of them was injured and sued the hotel and his coworker. As part of this same lawsuit, the Columns Hotel (“the hotel”) brought in the Louisiana Restaurant Association Self-Insurers Fund. The hotel claimed that the indemnity agreement between the parties should have applied in this situation. The fund disagreed, filing for summary judgment to have the court dismiss the claim on the basis that the agreement was not insurance. The trial court agreed and dismissed these particular claims. The hotel appealed.

The issue for the Fourth Circuit Court of Appeal ultimately dealt with how to interpret the indemnity agreement. Although the hotel argued that insurance law should apply to this contract, Louisiana law specifically excludes self-insurance organizations from the Louisiana Insurance Code. La. R.S. 23:1195(A)(1). Thus, the Fourth Circuit looked at the indemnity agreement between the hotel and the fund itself to determine how it should be applied. Contracts in Louisiana must be interpreted only to determine what the parties intended the terms to mean. La C.C. art 2045 Here, the parties disagreed as to what situations would be excluded from coverage by the fund. The exclusions the fund relied on were bodily injury, as well as assault and battery. The exception for bodily injury excluded from coverages situations where someone was injured by actions that should have been reasonably expected to cause such an injury. The court applied this to the fight between the employees. Their actions during the altercation would have been reasonably expected to cause injury. Thus, the Fourth Circuit found that the bodily injury exclusion would have applied. Therefore, the fund had been entitled to summary judgment on that point. The other exclusion was that of assault and battery. The exclusion includes reference to bodily injury caused by assault and battery. In Louisiana, battery is a “harmful or offensive contact” and assault is any action that would threaten such contact. Lawson v. Straus, 750 So. 2d 234 (La. Ct. App. 1999). Under these definitions, the fight between the employees would be considered assault and battery. Thus the agreement would not cover the se bodily injuries. Because these two exclusions applied to the situation, the Fourth Circuit found that summary judgment had been correctly granted.

January 18, 2020

What are Workers’ Rights When Taking a Leave of Absence?

by Berniard Law Firm

63-Email_8_1_2019-picture Learning of an illness is always terrifying. But what happens when it affects your everyday life and your ability to work? Hopefully, for most, the illness passes quickly. However, for people with chronic health issues, extended absences from work may cause issues at work, despite statutory protections. Experienced attorneys can help you navigate labor and employment law, but knowing your rights is the first step. The Fourth Circuit Court of Appeals ruled in favor of a New Orleans city employee in one such case of chronic illness.

Ms. Wilsons’ struggle began in February of 2015, when she stopped reporting to work as a Title Abstractor at the Department of Property Management for the City of New Orleans. She soon produced documentation from her doctor. This documentation indicated that she was undergoing treatments that would prevent her from working, but that she would be reassessed in late March. In March and April, Ms. Wilson provided further documentation regarding her inability to return to work at that time.

The situation in the Department of Property Management became tense during Ms. Wilson’s medical leave. Employees bore the weight of her absence, struggling to timely process work orders. This strain became the catalyst for her removal.

January 17, 2020

Personal Injury Lawsuit Brought Too Late For Court to Rule on

by Berniard Law Firm

person-grilling-sausage-and-meat-1857732-1-1024x683 The interests of justice are best served when the evidence in a lawsuit is new. This is because any potential witnesses can corroborate or deny evidence presented at trial with a fresh memory of the events or documents. Personal injury cases in Louisiana follow this principle with a one year deadline called the peremptory exception of prescription. A recent lawsuit between New Orleans family members demonstrated the value of having an excellent attorney who knows when these deadlines begin to run.

On April 20, 2014, Cynthia Dent attended an Easter party at Genevieve Willis Dent’s home in New Orleans. While walking in the backyard, Ms. Dent stepped into a hole. This hole was covered by outdoor carpet and was not visible. As a result of the accident, Cynthia Dent experienced pain and swelling in her left foot and ankle. Two days later, on April 22, 2014, Cynthia Dent went to the doctor for x-rays and eventually found out that she broke her left foot.

One year and three days after the original accident and one year and one day after her diagnosis, on April 23, 2015, Ms. Dent filed a lawsuit against Genevieve Dent and Genevieve’s home insurance company, State Farm Fire and Casualty Company. In response, Genevieve Dent and her insurance carrier filed a peremptory exception of prescription. This peremptory exception of prescription is used by defendants for a variety of reasons, which basically argues that there is no legal remedy for the plaintiff’s alleged injury because the lawsuit was brought too late. In Genevieve Dent’s case, she raised the peremptory exception of prescription because Cynthia Dent filed her lawsuit past the one year deadline. The Trial Court held a hearing on the peremptory exception of prescription and agreed with Genevieve’s argument. The lawsuit was dismissed. Cynthia Dent then appealed.

January 16, 2020

Time Limit on Medical Malpractice Claim Wins Lawsuit for New Orleans Doctor

by Berniard Law Firm

bed-empty-equipments-floor-236380-1024x678 Medical malpractice lawsuits have a one year deadline for a patient to bring a lawsuit. This is called the peremptory exception of prescription. This deadline attempts to provide the patient with enough time to figure out they have been wronged by a doctor, while also providing doctors with protection against claims several years old where the evidence can be less reliable. With the help of an excellent attorney, a New Orleans doctor was able to deal win a lawsuit that was brought over two years after a visit with a patient.

In May of 2013, Mario Hurst went to the emergency room at the University Medical Center in New Orleans. Mr. Hurst’s symptoms included a bad cough, bloody phlegm, loss of appetite, bloody stool, and pain in the left section of his chest. He was seen by two doctors, Dr. Heather Murphy Lavoie and Dr. Thomas Clay Crouch. Dr. Lavoie initially saw Mr. Hurst but sent him to Dr. Crouch, who performed several tests. Along with routine testing, Dr. Crouch ordered a chest x-ray, blood work, urine and stool samples, and an EKG. As a result of the testing, Mr. Hurst was diagnosed with an upper respiratory infection and instructed to see his regular physician for a follow up appointment.

After his symptoms continued for two years, on July 13, 2015, Mr. Hurst brought a lawsuit for medical malpractice against Dr. Lavoie. Dr. Lavoie responded by invoking an exception of prescription because there is a one year deadline on medical malpractice cases. Since the initial visit was May, 21, 2013 and the lawsuit was not filed until July, 13, 2015, the Trial Court agreed and ruled in favor of Dr. Lavoie. Mr. Hurst then appealed.

January 15, 2020

Bosley Driving School Issued Certificates While Its Licensure was Expired

by Berniard Law Firm

chairs-classroom-college-desks-289740-1024x683 Most American’s have experienced some type of driving school, either during school or after school at a private driving school. Regardless of whether you took driving classes during school or after school, the individuals teaching the classes and the organization sponsoring the classes had licenses. In Louisiana, the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (“OMV”) provides licenses for two types of courses – a fourteen-hour course for individuals over eighteen who have never had a license, and a thirty-eight-hour course, for individuals under eighteen.

This case asks whether an appellate court may review a case that is not per se a final judgment. Typically, appellate courts only have jurisdiction to review a final judgment, which is a judgment that determines the merits of a case. La. C.C.P. art. 1841. While not all claims may be reviewed by an appellate court, a final judgment is appealable in all causes. Here, we deal with a case in which not all of the claims had been adjudicated in lower courts.

Bosley’s Driving was licensed to instruct the fourteen-hour courses. Additionally, it had applied and been denied the license to teach the thirty-eight-hour courses in both 2012 and 2013. While Bosley’s Driving never obtained a license to teach the thirty-eight-hour courses, it issued certificates of completion to nine students in 2013 and 2014. As a result, in March 2014, Bosley’s Driving was issued a cease and desist as a driving school and a third-party tester due to instructing the thirty-eight-hour driver course without approval. Bosley’s Driving appealed the revocations to the Division of Administrative Law, alleging that the OMV’s treatment of him violated the Louisiana Unfair Trade Practices Act because it was shutting down his business.

January 14, 2020

Injuries Sustained When Road Grader Got Stuck on Train Tracks in Grosse Tete, Louisiana

by Berniard Law Firm

black-train-on-rail-and-showing-smoke-72594-1024x727 Everyone has experienced or knows about a situation in which a governmental body was liable for damages or injuries caused. When suing a city in Louisiana, there must be some evidentiary support for the elements required under La. R.S. 9:2800. Otherwise, cities would be getting sued for every crack in the sidewalk that someone tripped over. While the situation in this case was more serious than a crack in the sidewalk, there are limits, all the same, to ensure that the city is not liable for another’s wrongdoing. The question in this case is who is responsible for the failure to maintain proper signage at railroad tracks? And if the signage is not enough who is held responsible?

In this case, TG was working as an engineer on a Union Pacific train that was traveling north on a path that would cross Cedar Street in Grosse Tete, Louisiana. DA was driving a road grader traveling west of Cedar Street when he attempted to cross the train tracks. Unfortunately, DA was not able to drive across the train tracks and was subsequently struck by the train, causing his death. TG was allegedly injured and filed suit for damages against the Department of Transportation and Development (“DOTD”), Mr. DA and the Union Pacific Railroad Company, alleging the defendants were at fault for the injuries sustained when the train struck the road grader. DOTD claimed that it was not at fault, but instead that the Village of Grosse Tete was at fault for a number of reasons, including failure to maintain the roadway surface and warning devices.

As a result of DOTD’s claims, Goodmond filed an amended petition adding the Village of Grosse Tete as a defendant, for which it denied liability. The Village of Grosse Tete claimed that the plaintiff lacked sufficient support to establish the required elements to find it liable for the injuries Goodmond sustained.

January 13, 2020

Insurance Policy Excluded Coverage for Assault-and-Battery that Occurred at Baton Rouge Bar

by Berniard Law Firm

alcohol-architecture-bar-beer-260922-1024x576 Almost all companies have insurance policies to protect them from liability that may arise during the course of business. In this case, the defendant, Reggie’s, had a commercial general liability (“CGL”) policy through Century Surety Company (“Century”). Generally, an insurance company may limit coverage, so long as the limits to not conflict with any laws or public policy, and when there is a limit, the insurance contract must be strictly construed against the insurer. La. C.C. art. 2056. This means that if there are any ambiguities in the exclusion or limitations, they are construed in favor of the insured. See Edward v. Daugherty, 833 So.2d 932, 940 (La. 2004). Here, the question that arose is whether the August 22 fight at Reggie’s bar was excluded under the policy provided by Century under the assault-and-battery endorsement exclusion.

On August 22, 2010, Juan Mendez (“Mendez”) was at Reggie’s bar when he allegedly threw a drink in another patron’s face. Mendez was then escorted out of the building by Evan Vincent (“Vincent”) a bouncer at Reggie’s, and a defendant in the case. After Mendez was removed from the building, he was injured when Vincent picked him up and forced him to the ground. The police and EMS were called, but Vincent was not charged.

Mendez subsequently filed a civil suit for damages against Vincent, Reggie’s, and Century. Following a hearing, the trial court granted summary judgment in favor, finding that the August 22, incident was not covered by Century. The plaintiff appealed, arguing that the incident was not precluded from coverage because the bodily injuries were intended and resulted from the use of reasonable force to protect persons or property.