Louisiana Personal Injury Lawyer Blog

May 2, 2019

Lafayette Area Family Who Purchased an Allegedly Defective Home Has Appeal Dismissed But Allowed to Apply for Supervisory Writ

home-sweet-home-1228389-1-1024x768 There are times when a Trial Court may issue partial judgments that are non-appealable. But this does not always mean the lawsuit is over. When this happens it is important to have an excellent attorney to navigate the complex procedural processes to allow a party to reach the stage where an Appellate Court may review the factual issues of their case. That was the case for a Lafayette area man who ran into problems with a home he recently purchased.

Adam Bordelon purchased a manufactured home from Evangeline Home Center which was manufactured by Cappaert Manufactured Housing. Shortly after the purchase Mr. Bordelon noticed problems with the house. Mr. Bordelon alleged that the problems with the home were due to defects from Cappaert’s construction of the home. He also alleged that he requested these defects to be repaired but the repairs were never done.

Mr. Bordelon filed a lawsuit against Cappaert, the manufacturer, and Evangeline Home Center, the retail seller, for these unsatisfactory conditions and sought rescission of the sale. Mr. Bordelon also sought damages and attorney’s fees. Cappaert filed a motion to compel arbitration and for stay in the proceedings. Cappaert and Evangeline also argued that the dilatory exception of prematurity should dismiss the lawsuit. The dilatory exception of prematurity is a defensed used by defendants essentially saying that the lawsuit is not ripe for a court to make a ruling on. La.C.C.P. art. 933.

May 1, 2019

Louisiana Court of Appeal Evaluates Who is at Fault when a Horse and Car Collide

by Berniard Law Firm

horse-1392212-1024x863 While there are many steps that can be taken to prevent road accidents, accidents still happen. When accidents occur, we are left to determine who is at fault. For many people, automobile insurance is the only lifeline to help them recover from the accident. However, to automobile insurers, the question of who is at fault is incredibly important. Is there ever truly one party who is 100% at fault for a crash? How is a crash handled if it involves unconventional modes of transportation? Can someone be at fault if they are not legally negligible? These issues were explored in a case brought to the State of Louisiana Third Circuit Court of Appeals.

In February 2012 on Dave Douglas Road in Calcasieu Parish, Louisiana, Cyril Prejean and Jessyca Steward were riding Prejean’s horse Mississippi. At approximately 6:25pm, Prejean and Steward were hit by a GMC Yukon driven by the defendant, Russell Horton. Cyril and Steward did not receive serious injuries, however, Mississippi died from a gunshot wound to ease his suffering from injuries sustained in the crash. Horton was insured by State Farm Mutual Automobile Insurance. Prejean and Steward filed a lawsuit against Horton in November 2012. Following a trial in September 2014, the trial court found Horton was 100% at fault for the accident and awarded Prejean $17,969.50 in total damages and Steward $6,962 in total damages.

Horton and Statement appealed this decision citing that Prejean should have outfitted Mississippi with lights as required by Louisiana law and therefore Prejean should be 100% at fault for the accident. See La.R.S. 32:53, La.R.S. 32:301, and La.R.S. 32:124.

April 30, 2019

Louisiana Appeals Court affirms no damages should be allocated to minors Because of Lack of Proof

by Berniard Law Firm

girls-playing-1564125-1024x768 What happens when a plaintiff is injured, and damages are denied? How can a plaintiff prove they suffered injuries from an accident? According to Louisiana law, a plaintiff must prove, by a preponderance of the evidence, that his or her damages were the result of an injury caused by the defendant. Wainwright v. Fontenot, 74 So.2d 70, 77 (La. 2000). The following Louisiana Fifth Circuit case demonstrates the plaintiff’s burden of proof needed for a Louisiana court to award damages.

On March 5, 2013, Regina, and her minor children, Darren and Darinesha were traveling northward in the center lane of Williams Boulevard when their car was sideswiped by a car driven by Mr. Hashim on Williams Boulevard in Jefferson Parish. The airbags in both cars failed to deploy, and the cars only sustained minor headlight and paint damage. The plaintiffs, Regina Tezeno, and her minor children, Darren and Darinesha Tezeno filed a lawsuit against Mr. Joel Hashim and his insurer.

The district court attributed 100% fault to Mr. Hashim and awarded Regina Tezeno special damages of $1,035.00 and general damages of $4,500.00. Yet, the trial court dismissed the award claims to her minor children with prejudice. The plaintiffs appealed the trial court’s refusal to award damages to the children.

April 29, 2019

Monroe Tire Store Found Not Liable for Auto Accident Caused by Defective Tire

by Berniard Law Firm

Caveat Emptor. This is a common consumer warning, more easily recognized in English as “Buyer Beware.” But what if a defective product wasn’t actually bought, but given away for free? Monroe resident Jason Falcon faced this issue. In April 2012, Falcon called several local tire stores looking for a new tire for his pickup truck. He spoke to the manager of Ink’s Firestone (“Firestone”) of Monroe, Emmett “Ink” Cobb, who said he had a tire meeting Falcon’s specifications in stock. However, when Falcon arrived at Firestone to purchase the tire, Cobb said he did not have a new tire in the correct size available. Instead, Cobb invited Falcon to select a used tire from one of the piles outside the store for free. Falcon declined Cobb’s offer to mount the tire for $8.00 because Falcon, a mechanic at a local car dealership, planned to do it himself.

A few days after he installed the used tire, Falcon and his fiancee were returning from a trip to Baton Rouge when the tread came off the replacement tire. The tread separation caused Falcon to lose control of his truck, ultimately steering the vehicle into the median where it flipped over, landing upright. Falcon wasn’t injured, but his fiancee sustained minor injuries. The truck, damaged significantly, was a total loss

After the accident, Falcon filed a lawsuit against Firestone claiming that the defective tire caused the crash. The trial court rejected Falcon’s claim, reasoning that the tire could not have been defective because Falcon, as a professional mechanic, would have recognized the defective condition when installing the tire on his truck. Falcon appealed this judgment, claiming the trial court made three errors: first, in deciding that the tire was not defective; second, in holding that Firestone was not negligent; and third, in finding that there was no sale of the tire in question from Firestone to Falcon.

April 28, 2019

Partial Judgment Leads to Dismissal of Appeal in St. James Parish Car Accident Case

by Berniard Law Firm

crashed-car-1308788-1024x768 A party to a lawsuit may wish to appeal a court’s decision that they find unfavorable. But under Louisiana law, in most situations only final judgments can give the Court of Appeal jurisdiction to hear the case.

In November of 2012, Jonathan Vince was the driver of a car in St. James Parish. Vince’s car crashed into a car driven by another person, Dale Koontz. Vince filed a lawsuit alleging that Koontz’s negligent actions caused the accident, which resulted in significant personal injury. Koontz denied the allegations and asserted that the collision was the sole responsibility of Vince or, that Vince’s driving was the reason for the accident. Koontz then filed a counter lawsuit within the lawsuit, a reconventional demand under La. C.C.P. art. 1060 alleging that Vince’s negligence caused the wreck. A reconventional demand is a claim filed against the plaintiff by the defendant in the same action.

At the trial, the parties agreed that Koontz’s reconventional demand would be decided by a judge should the jury find that Vince was liable for the accident. The jury returned a verdict in Koontz’s favor, determining that although Koontz was negligent, his negligence wasn’t the proximate cause of the car accident. The trial judge dismissed Vince’s complaint and deferred the reconventional demand ruling. Vince filed a motion seeking to get a new trial. He argued that the form used by the jury to determined Koontz negligence was flawed as a matter of law. The trial judge agreed, finding the jury interrogatories were improperly written. Though he denied Vince’s motion for a JNOV, the judge granted a new trial.

April 27, 2019

Baton Rouge Doctor Accused of Medical Malpractice Wins Dismissal Due to Plaintiff’s Delay

by Berniard Law Firm

heart-1634235-671x1024 When you suspect a doctor has provided substandard care for a medical issue, it is important to immediately retain the services of a qualified medical malpractice attorney. Quick action is important because time is not on your side when considering a lawsuit. Here is but one example of how waiting can be detrimental to the plaintiff’s case.

In May 2011, Baton Rouge physician Dr. T performed surgery to repair a ventral hernia David Verbois suffered following coronary artery bypass surgery. After the procedure, Mr. Verbois experienced nausea, vomiting, diarrhea, fever, chills, and abdominal pain. In June 2011, Mr. Verbois was readmitted to the hospital where a CT scan revealed an abnormal fluid collection. Dr. T dismissed this condition as benign and offered Mr. Verbois no treatment.

Mr. Verbois’s symptoms continued. In October, 2011, Dr. T performed surgery to remove Mr. Verbois’ gallbladder. The procedure was done even though there was no abnormal appearance of the gallbladder other than a single, small, calcified stone. Mr. Verbois’s condition did not improve and he underwent another CT scan in December, 2011. This CT scan revealed a perforation of the stomach at the site of an appliance placed during previous gastric bypass surgery performed by a different doctor.

April 26, 2019

Court Denies Recovery for Decedent’s Family in Grand Isle Apartment Fire

by Berniard Law Firm

building-on-fire-1211010-1024x680 When a loved one dies from an avoidable accident, a family’s options for recovery include a wrongful death lawsuit. For this claim to succeed, a family often needs to prove that someone had a duty to protect the decedent but acted negligently in causing this death. For wrongful death lawsuits related to building fires, potentially negligent parties include those involved in preventing these disasters: building inspectors and fire marshals.

A fire at the Willow Creek Apartments in Grand Isle, LA on September 26, 2012 resulted in the deaths of two residents, Belle Brandle and Timothy Foret. One year later, Mr. Foret’s sisters, Sandra Hanson, Yvonne Grizzaffi, and Patricia Foret, brought a wrongful death lawsuit against the Office of the State Fire Marshal (“SFM”) and the inspector who inspected the apartments prior to the fire, Nunzio Marchiafava. Mr. Foret’s sisters argued that SFM and the inspector were negligent in responding to a resident’s fire hazard complaint. The trial court granted SFM and the inspector’s motion to dismiss in 2015; one of Mr. Foret’s sisters, Sandra Hanson, appealed.

Her argument hinged on the following four purported claims regarding SFM and the inspector: (1) they failed to investigate the report of a fire hazard, (2) they failed to advise the apartment owner of this hazard, (3) they failed to bring action against the apartment owner for this hazard, and (4) the inspector falsified his inspection report.

April 25, 2019

Hammond Convenience Store Ordered to Pay for Customer’s Medical Treatment After Tripping Incident

by Berniard Law Firm

the-gas-station-1526346-768x1024 Under Louisiana law, store owners can be held liable for damages if a customer is injured by an unsafe condition while visiting the premises. In November, 2011, Henry Moore, Jr. visited the Murphy Oil gas station and convenience store in Hammond, Louisiana. After making his purchases at the store’s counter, Moore started back toward his car when his foot came in contact with a black plastic pallet supporting a display of bottled water. Moore tripped and stumbled, but didn’t fall to the ground. He then reported the incident to manager on duty. After the incident, when Moore began to suffer back pain, Murphy Oil agreed to pay for Moore’s medical treatment. When Murphy Oil stopped paying for Moore’s treatment after approximately four months, Moore filed a lawsuit for damages, alleging that the water display created an unreasonably dangerous condition.

In Louisiana, merchants are required to exercise reasonable care to protect those who enter the premises. This duty extends to keeping the premises safe from unreasonable risks of harm and warning customers of known dangers. See La. R.S. 9:2800.6. Courts have adopted a four-part balancing test to determine whether a condition is unreasonably dangerous. One part of the test involves determining whether the defective condition was “open and obvious.” In general, if a hazard in open and obvious, a defendant does not have a duty to protect against the hazard. See Hutchinson v. Knights of Columbus, 866 So. 2d 228, 235 (La. 2004).

The trial court, holding that the question of whether the bottled water display created an unreasonably dangerous condition was a factual dispute, denied Murphy Oil’s motion for summary judgment and set the matter for trial. Moore agreed to a $50,000 damages cap, and the court based its ruling on a contributory negligence spectrum. The court found that Moore was 25% at fault for his injuries and was awarded a judgment for $37,500 against Murphy Oil. Murphy Oil appealed, arguing both that the trial court erred when denying its motion for summary judgment, and that the trial court should have subtracted the medical expenses it had already paid when determining Moore’s award.

April 24, 2019

Lafayette Police Shooting Shows the Limits of Officer’s Qualified Immunity

by Berniard Law Firm

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Qualified immunity is a concept that is designed to protect civil servants from lawsuits for their official actions. The “qualification” means that immunity does not operate for actions that are unlawful or that show extreme incompetence. Generally, under Louisiana law, law enforcement officers are entitled to immunity so long as their actions do not violate statutes or infringe on others’ constitutional rights. Negligence alone is not sufficient to limit immunity. An officer maintain qualified immunity up to the point of “going too far,” which is what happened during an incident at a Lafayette apartment in December, 2011. On that evening, Quamaine Mason stopped by his girlfriend’s apartment to pick up his dog when he saw the father of his girlfriend’s child and another man in the apartment with her. Mr. Mason proceeded to bang on the door until his girlfriend opened it. He threatened both men with his gun and they left the apartment. One of the men called the police, claiming Mr. Mason broke into the apartment with the intention of stealing the dog. Officer Martin Faul of the Lafayette Police Department arrived on the scene. When Officer Faul ordered Mr. Mason to put his hands up, the action revealed that Mr. Mason was carrying a firearm. Ultimately, Officer Faul fatally shot Mr. Mason seven times.

Witness testimony at trial differed. Officer Faul testified that Mr. Mason was going to pull his gun, leading him to shoot Mr. Mason first. Mason’s girlfriend, however, testified that Mason was lying on the ground barely moving with his hands by his sides when at least two of Officer Faul’s shots were fired. Mr. Mason’s parents (the “Masons”), both individually and on behalf of their son, brought multiple claims against the officers involved and the police department.

The Masons’ claims were based on 42 U.S.C. § 1983, alleging that Officer Faul violated the US Constitution. First, his use of excessive force violated Mr. Mason’s Fourth Amendment rights; next, Officer Faul deprived Mason of substantive due process under the 14th Amendment by engaging in actions that “shock the conscience”; finally, Officer Faul violated Mason’s Eighth Amendment rights by acting with deliberate indifference to his medical needs after the shooting. The Masons also brought civil claims against the City of Lafayette. Officer Faul asserted the affirmative defense of qualified immunity, and the defendants’ motion for summary judgment was granted by the trial court. The Masons appealed to the U.S. Fifth Circuit Court of Appeals.

April 23, 2019

Baton Rouge Man Accuses District Court of Abusing Its Discretion and Denying Him Due Process

by Berniard Law Firm

roof-1171576-1024x768 The Louisiana Code of Civil Procedure provides that a court has wide discretion in granting a continuance (a postponement of the proceedings) in any case where appropriate. See La. C.C.P. art. 1601. But what constitutes appropriate grounds for a continuance? A court must take into account the specific facts of the situation in order to determine whether a continuance should be granted. A recent case in the Louisiana Court of Appeal explains this process.

The roof of Mr. and Mrs. Abington’s Baton Rouge home was damaged in Hurricane Isaac. The Abingtons contacted Mr. Spears of the Louisiana Roofing Company to replace the roof. The company not only failed to complete the roof repair, but subsequently caused more damage to the Abingtons’ home. After the Abingtons filed a lawsuit, the case was continued three times at the request of Mr. Spears. The first continuance was granted due to Spears’s failure to answer depositions and to answer discovery requests. The second continuance was granted so Spears could find a new attorney; Spears’s first attorney requested to withdraw from the case due to Spears’s volatile behavior, making her fear for her safety. The third continuance was granted to Spears’s new attorneys so they could get acquainted with the case.

Several days before trial, Spears filed a pro se motion for a continuance. (A pro se motion is one filed by the litigant himself, without the aid of an attorney.) The request was denied by the trial court. Two days before trial, he fired his second set of attorneys, and hired a new attorney who requested another continuance for trial preparation and to avoid a scheduling conflict. This request was also denied. At trial, no counsel appeared to represent Spears, so he once again asked the court for a continuance. The request was denied and the trial proceeded, resulting in a judgment in favor of the Abingtons.