Louisiana Personal Injury Lawyer Blog

December 19, 2019

Appellate Court Upholds Finding that Accident Did Not Cause Employee’s Injuries

clouds-crane-drill-414936-1024x384 Everyone gets injured, but what happens when you are injured on the job and had been in an accident in the past? Does the court take that into consideration if you file a lawsuit, or does the court presume an accident was work-related? In one local case, the workers’ compensation judge found that the injury at issue was not caused by the work accident. The injured party, Todd Porche (“Porche”), appealed this determination.

Generally, when reviewing workers’ compensation cases, the appellate court must determine whether the commission’s conclusions are reasonable using the clearly wrong standard. Richardson v. North Oaks, 91 So.3d 361, 365 (La. App. 2012). If there are two acceptable views of the evidence, the fact finder’s decision may not be found manifestly erroneous, or clearly wrong. Here, Porche alleged that the workers’ compensation judge erred in denying the reopening of the case, which is within the discretion of the court. Reopening the case would have allowed Porche to prove causation.

On September 11, 2013, Todd Porche (“Porche”) was working for Guichard Operating Co., LLC (“Guichard”) when he fell between eight to fourteen feet onto a steel rig floor, where he allegedly injured his back and head. As a result, Porche received workers’ compensation benefits from the date of the accident through March 13, 2014. When Guichard terminated Porche’s benefits, the company alleged that Porche violated La. R.S. 23:1208 and 23:1208.1. If true, it would mean Porche forfeited all benefits and would owe the company restitution, interest, and costs. After a four-day trial, the workers’ compensation judge denied Porche’s claims.

December 18, 2019

Blue Cliff College Overcomes Claim of Racial Discrimination

by Berniard Law Firm

auditorium-benches-chairs-207691-1024x731 Generally, terminating an employee on the basis of race is a violation of the Louisiana Employment Discrimination Law, which is similar to Title VII of the Civil Rights Act of 1964. La. R.S.23:301; 42 U.S.C.A. § 2000. Generally, to establish a case of racial discrimination under the Louisiana Employment Discrimination Law, the plaintiff must show that: (1) she belongs to a protected group; (2) she had appropriate qualification for the position; (3) she suffered an adverse employment action; and (4) she was replaced by someone not in her protected group. Mbarika v. Board of Sup’rs of Louisiana State University, 992 So.2d 551, 562 (La. Ct. App. 2008).

In this case, three employees of Education Management, Inc. d/b/a Blue Cliff College (“Blue Cliff”) filed a lawsuit alleging that they were fired due to being Caucasian. On November 7, 2008, a customer at Blue Cliff’s cosmetology school’s beauty salon made a comment regarding recently elected President Barack Obama, which caused a disruption in the salon. Two Blue Cliff employees, Nedina Chaisson (“Chaisson”) and Melissa Shapcotte (“Shapcotte”), were working with the students in the salon when the incident occurred. Joe Rogalski (“Rogalski”) subsequently expelled four African American students who were involved in the November 7th incident. Shortly after the four students were expelled, they were reinstated by Blue Cliff, and Chaisson, Shapcotte and Rogalski were discharged for “inappropriate professional behavior” and mishandling the November 7th incident.

In the lawsuit, the trial court granted summary judgment in favor of Blue Cliff, dismissing all of the plaintiffs’ claims with prejudice. The plaintiffs appealed, arguing that the trial court erred in admitting the affidavit of Reginald L. Moore, the president and CEO of Blue Cliff. The plaintiffs claimed that this affidavit was improper, as it contained 12 unverified, unsworn witness statements. Generally, an affidavit may be challenged via a motion to strike.

December 17, 2019

Medical Malpractice Alleged after East Baton Rouge Hospital Patient Dropped on Floor During CT Scan

by Berniard Law Firm

Medical malpractice lawsuits concern a wide range of different types of injuries and even death. This Louisiana case involved a claim brought by a woman who believed that the hospital and its staff acted negligently, causing her to suffer a compression fracture of the lumbar spine. Both the district court and the appellate court ruled in favor of the hospital, finding that no medical malpractice had occurred because the women failed to provide enough evidence to prove that the hospital or the hospital staff acted negligently and breached the standard of care.

On December 2011, Jane H. Clattenberg was admitted into Our Lady of the Lake Regional Medical Center in Baton Rouge, Louisiana, because of her heart condition. During Clattenberg’s time at the hospital, she did not suffer a compression fracture of the lumbar spine. During an ordered CT scan, a hospital assistant dropped Clattenberg when they attempted to transport her from the stretcher to the CT scan table. Clattenberg alleged that the hospital assistant breached its standard of care when they were transporting her because the drop fractured her spine. The drop caused Clattenberg to extend her hospital stay along with pervasive mental and physical pain and suffering. After Clattenberg was discharged, she continued to suffer mental and physical pain and suffering. Clattenberg’s husband also claimed loss of consortium because of the hospital’s negligence.

Clattenberg brought a lawsuit against the hospital, alleging malpractice. The Medical Review Panel (“MRP”) did not find anything in the record that indicated that the hospital staff breached their standard of care when they transported Clattenberg to the CT scan table. Though MRP was doubtful of Clattenberg’s allegations, they concluded that even if Clattenberg’s statements were true, it is unlikely that the drop caused her spinal compression fracture.

December 16, 2019

Tulane University Student Lawsuit About Dorm Room Incident Remanded Back to Trial Court

by Berniard Law Firm

A 2016 case demonstrated the importance of making sure our universities remain safe and secure. While one would like to think our schools would be free from the dangers of larger society, Tulane learned the necessity of vigilance.

While a student at Tulane University, the Plaintiff, Stephanie Boyd, shared a dorm suite with shared bathroom. One of her suitemates guests, Defendant Andrew Cebalo, took advantage of the shared bathroom to sneak into Stephanie’s bedroom at night and molest her.

In the initial trial, Ms. Boyd alleged Tulane University was negligent for failing to properly secure the premises, provide safe housing, and comply with industry standards regarding door locks and security. In response, Tulane filed an exception of no cause of action. Boyd filed an opposition to the exception of no cause of action, and an amended and supplemental petition alleging a failure to implement measures protecting students from foreseeable criminal harm. The trial court sided with Tulane, and dismissed the case with prejudice (meaning the lawsuit could not be filed again in the future).

December 15, 2019

$13.4 Million Jefferson Davis Parish Oil Wells Lawsuit Reviewed by Louisiana Supreme Court

by Berniard Law Firm

14-1024x682 Often times during a lawsuit, cases involve a classic “battle of experts,” where each side presents an expert with an opinion which differs from their respective opponent’s side. The recent Jefferson Davis Parish case involved this exact situation.

Hayes Fund for the First United Methodist Church of Welsh, L.L.C. and other groups brought a lawsuit against a group of defendants including Kerr-McGee Rocky Mountain, LLC, alleging monetary losses which resulted from defendants’ mismanagement of two oil and gas wells in which the plaintiffs’ had royalty interests. Nevertheless, when it reached the Louisiana Supreme Court, it was mainly about the standards of appellate review.

The wells in question were both located in Jefferson Davis Parish. Plaintiffs alleged that defendants, when drilling the wells, did not follow the customary and industry-wide accepted protocols. For example, one of the well’s drill pipe was stuck, and later abandoned. Because of the remaining drill pipe, the hole could not properly be cemented, resulting in extraneous water to enter the reservoir and damage it, and causing loss of production and royalties for the plaintiffs. In another of the wells, the use of triple permanent packer caused the well to be “sanded up,” and resulted in the loss of lower zones. Overall, the alleged royalty loss of plaintiffs from both wells was $13.4 million.

December 14, 2019

Court Reinstates Public Works Director for the City of Opelousas

by Berniard Law Firm

28-Email-06_24_19-picture Can a court reinstate a former city employee’s job after being wrongly terminated? Well, fortunately for Mr. Turner, the answer is yes.

In 2003, Ron Turner began work as the Director of Public Works for the City of Opelousas. Eight years later, the Board of Alderman had a meeting, and Item 7 on the agenda was a “discussion regarding Turner’s employment.” During the meeting, Mr. Turner specified that they failed to notify him that his employment was up for discussion, and they removed the item from the agenda. Once they removed the item from the agenda, Mr. Turner left the meeting and did not stay for the rest of it.

As the meeting progressed, the board got to Item 16 of the agenda, which discussed the mayor’s appointments for 2011. The mayor presented an organizational chart that included all the departments and their appointments, and the box for Public Works had a replacement for Mr. Turner. The board approved the new appointments, and the mayor presented a termination letter to Mr. Turner.

December 13, 2019

Court of Appeal Rules in Favor of Gretna Winn-Dixie in Slip-and-Fall Case

by Berniard Law Firm

branding-buy-city-264636-1024x683 Injuries arise in many unexpected ways and locations, even from a trip to the local grocery store. Sometimes this occurs due to a patron’s own clumsiness. Regardless, a grocery store may still be responsible for injuries if the store was negligent, or did not take reasonable actions to fix a known danger. For one Gretna woman, however, the Louisiana Fifth Circuit Court of Appeal affirmed a ruling by the 24th Judicial District Court Parish of Jefferson holding that the grocery store had no responsibility for her injuries.

Around 5:00 P.M. one evening in May, Tami Luft headed to the local Winn-Dixie on Belle Chasse Highway and Wall Boulevard to purchase chips and bread. After she picked up her chips, Ms. Luft made her way to the bread section when she suddenly tripped on a piece of plastic that supported a bottom shelf in the chip aisle. The store manager, Mr. Lollis, helped Ms. Luft up, she finished her shopping, and then she went home. Nearly a year later in April, Ms. Luft filed a lawsuit against Winn-Dixie, claiming negligence for creating the hazardous condition that caused her injuries. The district court ruled in favor of Winn-Dixie, so Ms. Luft appealed to the Court of Appeal which affirmed the ruling.

To sue for negligence resulting from injury on a merchant’s property, Ms. Luft had to prove three elements under Louisiana law. La. R.S.9:2800.6(B). First, there had to be “an unreasonable risk of harm” that was also “reasonably foreseeable.” Second, Winn-Dixie had to either have created or “had actual or constructive notice of the condition which caused the damage” before the accident occurred. Third, Winn-Dixie had to fail in exercising “reasonable care.” Here, Ms. Luft had the burden of proof, meaning that to win her case she needed to prove each element. For Winn-Dixie to win the case, it only needed to refute one element. The element Winn-Dixie focused on was the second, claiming that the store neither created nor had actual or constructive notice of the danger posed to Ms. Luft by the plastic support.

December 12, 2019

Exxon Immune from Baton Rouge Refinery Asbestos Exposure Lawsuit

by Berniard Law Firm

clinic-doctor-explaining-2182972-1024x683 When an employee is injured on the job, workers’ compensation insurance often delivers more expediently than going through the courts. Unfortunately for the employee, it is also often less money than an injured employee could be awarded by suing the employer. As a Baton Rouge man recently learned, your type of employer can determine whether or not you’re able to sue your employer for work-related injuries.

J.E. Merit, a contractor, employed Mr. James Fletcher at a Baton Rouge Exxon refinery from 1988 to 1999. Mr. Fletcher claimed that, during this time, Exxon exposed him to asbestos, and that this exposure was the direct cause of his pleural mesothelioma. To recover for this injury, Mr. Fletcher filed a lawsuit against Exxon in the Orleans Parish Civil District Court. The District Court found that, while Mr. Fletcher did work for J.E. Merit, he was also a statutory employee of Exxon. Therefore, the District Court ruled that workers’ compensation, rather than the court process, was the means of recovery for Mr. Fletcher.

The type of employee-employer relationship makes a difference on whom one can sue. Under La. R.S.23:1032, workers’ compensation is the “exclusive remedy” for injuries sustained by direct employees. This statute protects companies while ensuring an expedient, albeit less compensatory, path for employees. Sometimes, however, the line is not perfectly clear between a direct employee and someone unrelated to an employer. When an employee falls in this gray area, he or she may be classified as a “statutory employee.”

December 11, 2019

Escalator Injury Case Against Harrah’s New Orleans Casino Dismissed

by Berniard Law Firm

21-card-game-black-jack-blackjack-1871508-1024x644 In order to successfully handle a lawsuit addressing the duty a business has to its patrons, an injured party should know that under Louisiana’s duty-risk analysis the main questions are: (1) whether a duty was owed; (2) whether that duty was breached; and (3) whether the breach caused the patron’s harm. Additionally, for a lawsuit in which the premises of the building are alleged to be dangerous, the plaintiff must prove that the building defect in question was “unreasonably dangerous.” Broussard v. State ex. Rel Office of State Buildings, 113 So.3d 175 (La. 2013).

A skilled attorney, and a successful injured party, will also be aware of how to win a motion for summary judgment (or survive the other party’s request for summary judgment). A motion for summary judgment is granted when there is no genuine issue as to material fact and a judgment as a matter of law is appropriate. La. C.C.P. art. 966. This essentially means that the dispute does not hinge on determining whether facts are true or false, but instead hinges on whether elements of the law have been met using the facts that both parties agree to be true.

On February 12, 2015, Lee Edmison fell down an escalator at Harrah’s New Orleans Casino and sustained severe injuries. Mr. Edmison’s blood alcohol content was 0.244 at the time of injury, three times Louisiana’s legal limit for driving. Mr. Edmison brought a lawsuit against Caesars Entertainment, the owner of Harrah’s, and Schindler, the manufacturer and servicer of the escalator.

December 10, 2019

Marksville Fender Bender Case Shows What Happens When One Party Denies Accident Occurred

by Berniard Law Firm

asphalt-automobile-automotive-125514-1024x576 The “burden of proof” may be a familiar concept to everyone, even those inexperienced with the courts. The idea is that the party in a lawsuit holding the “burden of proof” is tasked with providing evidence that reaches the level of proof required to meet the burden. In car accidents, where amount of fault decides how damages may be determined, this burden is especially important. The evidence in some car accidents makes the division extremely obvious, both as to fault and to extent of damage. Other cases, however, especially when the accident is relatively minor, may not be so clear cut. In an unpublished opinion, the Louisiana Third Circuit Court of Appeal considered such a case where the burden of proof was the main issue.

In 2014, Meagan Lemoine was driving a truck owned by the father of her children near Marksville, LA. With her were her young children and her sister. She had stopped at a traffic light when she was rear-ended by a white Jeep. No one in the car was able to identify the driver of the Jeep. After stopping to assess the damage to her vehicle, Ms. Lemoine followed the Jeep to a nearby AutoZone where the driver, a woman, exited the vehicle and entered the store. Ms. Lemoine took pictures of the Jeep. Later that afternoon, she reported the accident to the local police. A few months later, the owner of the Jeep, Lionel Augustine, and his wife received a letter from tMs. Lemoine’s attorney regarding the accident. Both Mr. and Mrs. Augustine denied they had been involved in an accident on that date. Mrs. Augustine claimed she had driven that day and visited AutoZone, but denied being in an accident. They both pointed out that there had been no damage visible on the Jeep. The insurance agent for the Augustines spoke about damage in the form of a “black smudge” on the front of the vehicle, but it did not match the position of the trailer hitch on the truck Ms. Lemoine was driving. The trial court eventually ruled in favor of Ms. Lemoine and her sister. Both parties appealed.

In Louisiana, the burden of proof is upon the person seeking damages in a lawsuit. Big D Dirt Servs., Inc. v. Westwood, Inc, 653 So.2d 604, 609 (La. Ct. App. 1995) This means the party must show enough evidence to convince the finder of fact in a case, whether it be jury or the judge, that the allegations of damage are factual. While both sides seemed to be telling what they believed to be the truth, their stories were completely contradictory. The Third Circuit considered the facts and how the trial court had handled them. The fact that there was white paint on the truck’s trailer hitch after the accident seemed to indicate that an accident had occurred. Also, the court considered that the heavy traffic in the area at the time made it very likely that such an accident could easily occur, and that a driver might not actually be aware they have hit another vehicle. The Third Circuit considered that the plaintiffs had observed the accident and were able to track the same Jeep. There was also uncontroverted evidence that Mrs. Augustine was in the area that day. With this evidence, Ms. Lemoine and her sister met the burden of proof that both the accident occurred and Mrs. Augustine was the responsible party. Although Mrs. Augustine disputed the evidence, the Third Circuit held that the trial court’s ruling was reasonable. The Third Circuit does not have to determine that the trial court was right or wrong, just whether or not the decision was a reasonable one given the evidence. Rosell v. Esco, 549 So. 2d 840 (La. 1989).