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a-child-1431845-1024x768If you are at school or work and notice several people who are soaking wet and wearing rain jackets, you would not have to be a detective or even a good lawyer to confidently make the judgment that it’s raining outside. Similarly, the legal concept of summary judgment used by courts is when the undisputed facts surrounding a claim lead to a court concluding the lawsuit as a matter of law, not facts. When that concept is applied to only certain elements or portions of a case or claim, it is called partial summary judgment. Partial summary judgment and its effects were of primary importance for a Baton Rouge, Louisiana, woman’s case.

Jennifer R. Hayes was carefully driving westbound along Louisiana Highway 724 on a rainy day with her friend Mayola Casais (owner of the car) and Casais’ foster child Geneva Marie Fils in 2006. Out of nowhere an eastbound truck veered into her lane and hit head-on. As a result of the collision, Geneva sustained a fractured skull, an intracerebral hematoma, and a traumatic brain injury.

Geneva’s biological parents, John and Demitria Fils, filed a lawsuit against multiple parties when they found out about the accident. One of those parties included the Louisiana Department of Children and Family Services, which the Fils claimed should be liable because Geneva was under the custody and control of a foster parent which the Department assigned. The Fils sought monetary damages for Geneva’s injuries as well as loss of consortium, which is compensation for their familial loss for what Geneva’s injuries did to their health or family relationships. In 2011, Demitria Fils passed away and Geneva’s biological maternal aunt, Calvemia Reed replaced her in the lawsuit.

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moor-land-3-1500234-1024x683Having the town pave your road or conduct other maintenance may seem like a harmless occurrence. However, it can have a significant impact on determining whether your property can become public use.

One landowner, Thomas Bourque, Sr., needed access to the rest of his property, but two other landowners, Todd Gautreau and Gregory Scot Himel, resisted the idea that part of their lands would become public use in order for Bourque to access another part of his property.  Bourque needed to access the southern part of his property in Ascension Parish because a bridge he had previously used for access was no longer usable. Bourque wanted to use the Hanson Road servitude for access to that property. Gautreau and Himel, the landowners who had established the Hanson Road servitude in 1992, did not want any further construction of Hanson Road for that purpose.  The trial court declared the Hanson Road servitude to have been dedicated to public use with full access to Bourque. Himel and Gautreau appealed to the Louisiana First Circuit Court of Appeal. The First Circuit amended and affirmed the trial court’s judgment and concluded that the entirety of the 1992 servitude was tacitly declared as a public road.

Dedication of property for public use is done four ways:  statutory dedication, formal dedication, implied dedication and tacit dedication.  See  Melancon v. Giglio, 712 So. 2d 535 (La. Ct. App. 1998).   The formation of a public road may occur through a tacit order.  See La. R.S. 48:491 (2017).  

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oil-power-1182675-1-1024x768Waiting until the last minute to do almost anything is not recommended but it is especially true if you are seeking to bring a claim for damages. That is what some fishermen found out when they sought to bring claims under the Oil Pollution Act of 1990 (OPA) for damages that resulted from an oil spill.  The oil spill came from a barge owned by American Commercial Airlines, LLC (ACL) that had been involved in a collision on the Mississippi River in the Port of New Orleans on July 23, 2008.

On July 25, 2011, the fishermen claimants filed an action against ACL in the United States District Court for the Eastern District of Louisiana.  The district court denied ACL’s motion for summary judgment but certified to the United States Court of Appeals for the Fifth Circuit two issues of law regarding the requirements for proceeding under OPA.  One issue was whether the claimants met the requirements when they did not personally sign the claim forms and did not provide specific requested items in support of their claims. The other issue was whether the claimants had to make a proper presentment at least 90 days before the three year limitation period ran out.  The first issue pertained to all claimants but the second issue involved only those claimants who first presented their claims on or after July 22, 2011, because those claimants had not waited the 90 days after first presenting their claims to file an action in order to not be barred by the three year limitation period.

Individuals and entities harmed by an oil spill may file claims for damages under OPA.  To promote settlement and avoid litigation, there are specific procedures under OPA that claimants must follow.  See  Johnson v. Colonial Pipeline Co. , 830 F. Supp. 309 (E.D. Va. 1993).  Under OPA’s presentment requirement, claimants must first present their claims to the responsible party and then wait until that party denies all liability or until 90 days from the time of presentment have passed before filing an action against that party.  See OPA, 33 U.S.C. § 2713 (2016).

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16-email-03-03-2019Double jeopardy is not a television marathon featuring Alex Trebek, but protection against it is fundamental to the United States legal system. In the criminal justice system, double jeopardy means being put on trial for the same charge twice; the Fifth Amendment to the United States Constitution bans it. Res judicata, Latin for “a matter already judged,” is the civil version of double jeopardy. It means that someone cannot be sued for the same reason under the same circumstances twice. In this case, the Louisiana Second Circuit of Appeal found that res judicata did not bar a landowner from suing his neighbors twice for the same cause of action, obtaining a right of passage from a public road to his property.

In 2006, Entrada Company filed suit against three neighboring landowners to obtain a right of passage, alleging that it had no access to a public road. This form of relief allows a landowner to pass over the land of another in order to access his own land. In March 2014, Entrada Company filed another lawsuit against the same defendants for the same cause of action. In April 2014, two of the defendants filed a motion to dismiss on the ground of abandonment, which the trial court granted. Because Entrada Company had not pursued the first lawsuit, the court dismissed it with prejudice, meaning that it could not be refiled.20

The issue in this appeal is whether this dismissal with prejudice of the first lawsuit precludes the second lawsuit on res judicata grounds. Res judicata precludes a second action when: the judgment is valid, the judgment is final, the parties are the same, the cause of action existed at the time of the first judgment, and the cause of action in the second action arose out of the same circumstances as the cause of action in the first action. See La. R.S. 13:4231 (2017).

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12-email-03-03-2019-pictureLife deals some people a tough hand. For Geneva Fils, a Louisiana infant in the foster care system, a car crash and severe injuries followed by a lengthy lawsuit added to her list of problems.

The Louisiana Department of Social Services (now known as the Department of Children and Family Services) took Geneva away from her biological parents following her birth. Several months later, on March 22, 2006, Geneva was in a car along with her foster parent, Mayola Calais and the driver Jennifer Hayes. Charles Guidry was driving in the opposite direction when he crossed the centerline, striking Geneva’s vehicle head-on. Geneva, who purportedly was improperly restrained in the vehicle, suffered a fractured skull among other serious injuries. Geneva’s biological parents filed a lawsuit on behalf of themselves and Geneva against the driver Guidry, her foster parent Calais, the driver Hayes, the State of Louisiana through the Department of Children and Family Services, and their insurance companies.

This particular decision came from an appeal of a motion for partial summary judgment involving a Louisiana statute which limited damages to $500,000 for any division or agency of the Louisiana government held liable for personal injury damages. See LSA-R.S. 13:5106(B)(3)(c) (2017). Plaintiffs argued that the individual defendants do not enjoy the protection of the damages cap, because unlike the Department of Children and Family Services, they are not a “state agency.” See LSA-R.S. 13:5102 (2017). The judge granted the Department’s motion as it concerned the Department’s liability for its negligent actions, but denied the motion regarding the Department’s vicarious liability for the actions of its agents. Both the Department and the plaintiffs appealed.

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6-email-03-03-19-PictureOne bad decision can lead to a huge legal headache. The combination of a chaotic atmosphere and alcohol makes bars the perfect storm for mistakes that can later lead to huge liability. In a recent case, a man who punched another patron at a Tangipahoa Parish bar appealed a default judgment that awarded the victim over $100,000 dollars for personal injury damages and medical expenses.

After Ryan Martinez walked onto the bar’s dance floor to break up a fight between his friend and Trevor Wilson, Wilson allegedly turned to Martinez and punched him in the face. Martinez alleged that this punch fractured his mandible; he had to have his mouth wired shut for eight weeks and he could not eat solid foods or work. This small scuffle on the dance floor led to life-changing consequences.

Martinez filed a lawsuit against Wilson, the bar, and their respective insurance companies. Summary judgment was filed by the bar and it’s insurance companies wherein they argued that there were no facts present that could show that they could be held liable in this lawsuit. Martinez was required to present proof to the contrary to defeat the summary judgment. The trial court dismissed the lawsuit against the bar because the court found that the bar was not liable under tort as a matter of law. Wilson never appeared to answer the lawsuit, so the trial court awarded a default judgment of over $100,000 dollars to Martinez after he filed a Motion for Default and went to a hearing on that Motion. See La. C.C. art. 1702 (2017). Even when there was no opponent because Wilson never appeared in court, Martinez still had to use admissible evidence to prove his injury.

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hole-1576687-1-658x1024Determining liability when someone is injured on someone else’s property is a complex endeavor. One of the major factors is determining whether the injury resulted from an unreasonably dangerous condition.

While a new In & Out Express Car Wash was being built in Metairie, LA, local business owner Mr. Frederick Helwig fell into a hole, sustaining injuries. Mr. Helwig was well aware of the construction going on, as he owned the business next door and had watched the construction progress for 6 months. When Mr. Helwig was injured, he was crossing the construction site at 10:30PM and did not use a flashlight or any sort of illumination to light his way.

The injured Mr. Frederick Helwig had the burden of proof to establish liability, that In & Out Express Car Wash (1) had a duty to conform conduct to a specific standard, (2) that the defendant failed to conform to the standard, (3) that the defendant’s conduct in failing to live up to the standard caused plaintiff’s injuries, (4) that the defendant’s conduct was a legal cause of plaintiff’s injuries, and (5) that the plaintiff has proof of the actual damages done to them. See Detraz v. Lee, 950 So. 2d 557, 565 (La. 2007).  Specific to the case of a dangerous condition on land, the injured Mr. Helwig had to prove that the hole was in In & Out Express Car Wash’s control, it presented an unreasonable risk of harm, that the defendant knew or should have known of the unreasonable risk, and that the damage was caused by In & Out Express Car Wash. See Babino v. Jefferson Transit, 110 So. 3d 1123, 1126 (La. Ct. App. 2013). At the crux of this case, the injured Mr. Helwig had to prove that the danger, the hole in the ground, was not open and obvious. Even if the hole was unreasonably dangerous, in that it would injury anyone who fell in it, there will be no liability if the dangerous or defective condition is obvious and apparent. See Bufkin v. Felipe’s La., LLC, 171 So. 3d 851, 856 (La. 2014).

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umbrella-1240650-1024x768When an employee is in an accident while driving the company’s car, is the company’s insurer liable? Generally, an employer is liable for employee accidents when driving a company car for employment duties. This can be difficult to determine in situations such as when an employee is on call and operating a company car, when the employee drives the company car at night, or when the employee drives the car on a personal errand with passengers. An accident involving St. Tammany Parish helped shed light on these issues.

On May 26, 2010, Gary Michael Brown, an employee of J&J Diving Corporation, was involved in a car accident with a St. Tammany Parish Sheriff’s department vehicle driven by Deputy Scott Jarred. Mr. Brown was driving a company car at the time of the accident with his girlfriend as a passenger. While Mr. Brown was not legally intoxicated, a field sobriety test indicated that he had been drinking before the accident. Before the accident, Mr. Brown had gone to retrieve his driver’s license from Gulfport, Mississippi after a company drag race event.

Jarred settled his claims with Brown, J&J Diving and Progressive, the company’s primary insurer. However, Mr. Jarred later added XL Special Insurance Company and Valiant Insurance (“Underwriters”) who insured J&J Corporation with a Marines Excess Liability Policy (“excess commercial insurance policy”) as defendants. The trial court granted Mr. Jarred’s motion for summary judgment and found the Underwriters were liable for the accident under J&J Diving Corporation’s excess commercial insurance policy. The Underwriters appealed, arguing that their insurance policy did not cover Mr. Jarred’s accident.

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37-Email-03-03-19-1024x986Generally, individuals expect that when on the premises of a public entity, the land has been safely maintained and there is a low risk of becoming injured. If an individual did become injured, he or she would expect to be reasonably compensated for any injuries. However, in Louisiana, premises liability law differs from the law that is applied when suing a private landowner. As this case shows, establishing that a defect causes an unreasonable risk of harm is a difficult obstacle to overcome when suing a public entity and can leave injured parties with no compensation for their injuries.

A man who was seriously injured on the property Ville Platte Housing Authority (VPHA) was not allowed to recover damages for his injuries. Marcushawn Smith, the injured man, was walking on the grass when he fell and seriously injured his ankle in a six inch wide and more than four-inch deep hole on VPHA’s property. Mr. Smith filed a lawsuit against the VPHA, the Louisiana Housing Council, Inc., and FARA Insurance Services, Inc. to recover compensation for his injuries. The Louisiana Housing Council and FARA Insurance were later dismissed from the case. At the trial court in Lake Charles, Louisiana, the judge decided the hole that Mr. Smith fell in did not create an unreasonable risk of harm, dismissing Mr. Smith’s claim against VPHA. Mr. Smith appealed this judgment to the Third Circuit Court of Appeal, arguing that because he fell and was seriously injured, the trial court committed legal error by finding that the hole did not create an unreasonable risk of harm.

On appeal, the judge relied on a 2012 Louisiana Supreme Court case which stated that states that in order to recover for damages, the injured party must establish five facts: (1) the public entity had ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the public entity was or should have been aware of the defect; (4) the public entity failed to fix the defect in a reasonable time; and (5) the defect is the cause of the complainant’s injury. See Chambers v. Village of Moreauville, 85 So.3d 593, 597 (La. 2012). Usually, as was the case here, the second criteria is the hardest for an injured party to overcome.

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72-Email-03-03-19-1024x512While many steps may be taken to prevent accidents, most are, unfortunately, unpredictable. For many people, automobile insurance is the silver lining to unforeseeable car accidents. However, the type of insurance policy you have can determine how much of the accident is covered, if it is covered at all, so it is important to understand exactly what you sign up for and always double check for changes. This issue was explored in a case brought to the Twenty-Fourth Judicial District Court for the Parish of Jefferson.

Through an independent insurance agent, Agent C, Mr. B. had car insurance from Allstate Insurance Company. For this plan, Mr. B signed an underinsured/uninsured motorist (“UM”) waiver, which declined all UM coverage. Mr. B married Bridget B in January of 2007 and the following month, Mrs. B went to Agent C’s office to change the insurance policy. She did not meet with Agent C and instead requested the office staff add UM coverage to the policy. No documents were signed and when Mr. B called Agent C to confirm the policy’s changes, there was no mention of UM coverage. In July, the Bs received correspondence from Allstate with the alterations to their insurance and included a declarations page disclosing the coverage included in the plan. Both Mr. and Mrs. B retained their insurance documents and renewed it bi-annually, but did not review the declarations page in detail.

In March of 2012, the B family got into a car wreck. When they filed an insurance claim against Allstate, they were surprised to hear that UM coverage was not part of the policy. The Bs filed a lawsuit against Agent C and Allstate, for not adding UM coverage to the policy. Agent C filed a motion for summary judgment, stating that based on the facts of the case the Bs would not be able to prove their allegations. See La. C.C.P. art. 966 (2017). In his motion, Agent C argued that the Bs’ claim was barred by the peremptive period, which requires all causes of action against insurance agents to be brought within one to three years. See La. R.S.9:5606 (2011).

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