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Category: Building Defects

  • Community Concerns After the Smitty’s Supply Explosion in Tangipahoa Parish

    Thick smoke and flames rising from the Smitty’s Supply lubricant plant in Roseland, Tangipahoa Parish, after the August 22, 2025 explosion and fire.The Smitty’s Supply plant explosion and fire in Roseland, Louisiana on August 22, 2025 has left the Tangipahoa Parish community shaken. Families were forced to evacuate, businesses were disrupted, and questions remain about the long-term impact of the disaster.

    While officials report that the fire is largely contained, many residents are still facing uncertainty—about their health, their homes, and their future.

    What Residents Experienced

    • Evacuations: Homes, schools, and businesses within a one-mile radius were evacuated immediately.

    • Environmental Fallout: Thick smoke and oily rainfall blanketed the area, leaving behind property damage and health concerns.

    • Lingering Worry: Even after the fire was 90% contained, many locals expressed concerns about possible chemical exposure and contamination of soil or water.

    Why This Matters

    Large-scale industrial accidents don’t just end when the flames go out. They can cause:

    • Respiratory or health issues from chemical exposure.

    • Property damage that requires costly repairs or cleanup.

    • Financial hardship due to missed work, medical bills, or temporary displacement.

    • Stress and uncertainty for families forced to leave their homes.

    These are not just inconveniences—they can have long-lasting effects.

    Do You Have Legal Options?

    If negligence played a role in the Smitty’s Supply fire, those responsible may be held accountable. Victims of this disaster may have legal claims for:

    • Medical expenses

    • Property cleanup or repair costs

    • Lost income

    • Emotional distress

    • Wrongful death claims (in the most tragic cases)

    Our Commitment to Tangipahoa Parish

    As a Louisiana-based law firm, we care deeply about protecting the rights of our neighbors. Our attorneys are already reviewing the situation at Smitty’s Supply and are prepared to investigate potential claims on behalf of affected families and workers.

    We will work tirelessly to:

    • Identify responsible parties

    • Secure fair compensation for victims

    • Provide compassionate support during this difficult time

    Contact Us for Help

    If you or someone you love was impacted by the Smitty’s Supply explosion in Tangipahoa Parish, don’t wait to get answers.

    📞 Call us today at 504-521-6000 or fill out our [contact form] for a free consultation.

    You don’t have to face this alone—we are here to stand by you.

  • Louisiana Court Says Trampoline Injury Not Caused by Defect in Shreveport Trampoline Park

    Sometimes, those delightful recreational activities we all enjoy carry an inherent risk. Often, we assume the risk of those injuries when we engage in that potentially reckless conduct. Knowing your legal options following these injuries is necessary, mainly because recovering for these somewhat ordinary injuries can be difficult. What does it look like when a party cannot recover for a recreational injury–here, an injury from a trampoline park visit?

    Kurt and Tabitha Perkins visited a Shreveport indoor trampoline park, Air U. Kurt was injured while at Air U, and he was relatively young, had no known or apparent medical issues before the injury, and had done some time with the U.S. Marine Corps. The Perkinses filed a lawsuit against Air U and other parties, namely insurance companies and Air U’s unidentified employees. 

    Kurt stated in a deposition that he did not know why his left knee gave out when jumping on the trampoline, as he had no other injuries or treatment to his left leg. The other patrons at the trampoline park, mostly young kids, had no trouble jumping on the trampoline. Kurt and Tabitha stated that they did not notice any defects on the trampoline and that Kurt jumped normally when he was hurt. Tabitha also said that an Air U employee did not call an ambulance because he was not a manager. 

    One of Air U’s owners, Mr. Murphy, stated that the other owners had vast experience with trampolines, but Air U did not have liability insurance when Kurt was injured. Murphy further said that patrons at Air U are repeatedly shown the park’s rules and must sign a waiver, which Kurt did. Additionally, Murphy stated that Air U trampolines are tested twice weekly for proper tension every day and for proper structure. 

    Dr. Gerald George, a Ph.D. in biomechanics, inspected Air U for the plaintiffs and stated in his affidavit that Kurt’s injuries were consistent with what one could expect from the unreasonably dangerous activity of jumping on trampolines. 

    Air U filed a motion for summary judgment. At the motion’s hearing, the Perkinses argued that the design of the trampoline park was inherently defective and dangerous, particularly the mounting of the wall trampolines at angles. Air U argued in response that the defects alleged by the Perkinses were irrelevant because Kurt was jumping up and down on a floor trampoline when he was injured. 

    The trial court, Parish of Caddo, partially granted Air U’s motion for summary judgment and dismissed part of Perkins’ claims. The Perkinses appealed that decision by the trial court and brought the case to the Second Circuit. 

    A court should grant a motion for summary judgment if the record shows no genuine issue of material fact. La. C.C.P. art. 966. The party moving for summary judgment is burdened with no factual support for at least one element of the other party’s claim. Upon that showing, the nonmoving party must produce factual support for that questionable element to prevent summary judgment. La. C.C.P. art. 966(D)(1). Appellate courts reviewing summary judgment rulings should use the same criteria used by the trial court and assess the record anew to determine if summary judgment was appropriate.

    In their appeal, the Perkinses argued that the possible defective design, installation, and inspection of the Air U trampolines were all still disputed and could have created an unreasonable risk of harm. The Perkinses further argue that they have sufficient evidence to support this claim and show a dispute of material fact, thus barring summary judgment. The Perkinses’ claim of the trampoline’s risky defects is outlined in La. C.C. arts. 2317 and 2317(1). Ultimately, a plaintiff seeking damages caused by a defect has to prove four things: (1) the defecting thing was in the defendant’s control, (2) the thing unreasonably risked harm to others due to a defect, (3) the defect caused the damage or injury, and (4) the defendant knew, or should have known, that the defect existed. Wells v. Town of Delhi. 

    Determining whether the defective thing is in the defendant’s custody is determined by considering if the defendant has the right of direction or control over the thing and if there is any benefit the defendant gets from that thing. Barnes v. Riverwood Apartments P’ship. The Second Circuit determined that Air U was in custody of the potentially defective trampoline because Air U owns and maintains the trampolines and gets revenues from controlling those trampolines. 

    A thing is defective if there is a condition that creates an unreasonable risk of harm to others using ordinary care and caution. Lawrence v. Sanders. To assess if something creates an unreasonable risk of harm, the social value and utility of the thing must be weighed against its possible danger to others. This balancing test can be done through several factors, such as whether the possible danger is obvious to potential victims of that danger, or perhaps whether there is a history of accidents related to the alleged defect. Moore v. Oak Meadows Apartments. The Perkinses argued that the entire Air U park was dangerous and defective, so the Second Circuit had to consider whether the social utility of the park outweighed its potential harm to patrons. Evidence indicated that Air U had a high social utility for its 90,000 patrons of all ages and that Air U had a history of 88 documented injuries in its first nine months of operation, a rate below the national average in the trampoline park industry. Accordingly, the court determined that the park’s utility outweighed its harm, and thus, the Perkinses did not show a defect in Air U. Because the Perkinses failed to prove this second element of La. C.C. art, 2317(1), their claim fell short. 

    The Perkinses also claimed that the trial court failed to apply res ipsa loquitur when it granted summary judgment. Res ipsa loquitur is a doctrine of negligence that applies when the plaintiff uses circumstantial evidence to show the defendant’s negligent conduct. Res ipsa applies when (1) the injury would not generally occur without negligence, (2) the evidence should sufficiently show that negligence was the cause of the injury, and (3) the defendant’s negligence must fall under the defendant’s duty owed to the plaintiff. Linnear v. Centerpoint Energy Entex/Reliant Energy. The court assessed the applicability of res ipsa to Kurt’s injury and found that an injury to the knee due to jumping on a trampoline is not such an extraordinary injury that it indicates the trampoline owner’s negligence. Accordingly, the Second Circuit determined that res ipsa did not apply to deem Air U negligent concerning their trampolines. 

    Everyday recreational activities often bear the risk of injury, but people still engage in those activities. When those people get injured during those activities, it is essential that they acquire counsel to help them navigate the problematic injury of recovery–both legal and monetary recovery, as well as physical. The areas of defective conditions and unreasonable risks are murky, and getting knowledgeable representation is vital to your best outcome in court. 

    Additional Sources: Perkins v. Air U Shreveport, LLC

    Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Defects: City’s Liability for a Child’s Fall on a Defective Sidewalk

  • Dealing with Flood Damaged Property? Be Prepared to Show Causation

    The story of an underdog seeking justice against a powerful corporation is a familiar legal narrative. And while we may be inclined to root for the little guy, that does not relieve him from proving he has a valid case.

    In Louisiana, a plaintiff will not see his case go to trial if it lacks support to overcome a motion for summary judgment. The opposing side will look for holes in the plaintiff’s claim, posing the question: if you have not produced facts suggesting I committed this offense, how will you obtain the requisite evidence to prove it at trial? Accordingly, every “essential element” of a claim requires factual support to serve as a basis for deliberation at trial. La. C.C.P. art 996(c)(2).

    The Mitchells, owners of a Shapes Gym in the Parish of Ascension, faced this “make it or break it” moment of summary judgment in their case against neighboring businesses, Wal-Mart, and Aaron’s. The Mitchells alleged that the neighbors’ improperly designed and maintained stormwater drainage systems were to blame for six inches of rainwater that flooded the gym in 2009 and again during litigation of the first flood claim in 2014. 

    In response, Walmart and Aaron’s filed motions for summary judgment, which the trial court ultimately granted. The defendants prevailed because the Mitchells did not adequately support the foundation of their claim, negligent stormwater management. The Mitchells had relied on testimony from a Professional Engineer regarding the substandard quality of the drainage system, but her findings failed to show causation: how did the performance of the drainage system cause Shapes Gym to flood?

    When the case came before Louisiana’s First Circuit Court of Appeal, the propriety of granting summary judgment was re-examined. This involved a two-part inquiry:

    1. Do the facts support an inference that poor stormwater management caused the flooding of Shapes Gym? (In legal parlance, does res ipsa loquitor apply?)
    2. Is the expert testimony sufficient to establish that some act or omission by Wal-Mart/Aaron’s created the conditions that resulted in flooding?

    First, for a res ipsa loquitor argument to hold, the proposed inference must be the most probable explanation for an injury, having no equally reasonable alternative. Boudreaux. The Court of Appeals found that the flooding of Shapes Gym could have been due to another cause, and it was Mitchell’s responsibility to provide evidence that it would not have occurred without Wal-Mart/Aaron’s negligence. 

    In response to the second question, the Court of Appeals found that Mitchell’s engineering reports were inadequate for showing causation between the performance and maintenance of Walmart/Aaron’s drainage systems and the gym flooding. The engineer concluded that the systems were undersized and improperly maintained, and the resulting sediment buildup was causing the overflow to discharge into Shapes Gym. However, this conclusory statement lacked supporting details: the specific amount of sedimentation in the drainage areas, the evaluation criteria for determining if that amount would cause overflow, or any additional documentation like photographs depicting site conditions around the time of flooding.

    Mitchell’s case against Wal-Mart et al. demonstrates the importance of performing due diligence during the pre-trial phases of litigation. A good claim relies on a thorough investigation to uncover the details courts demand, especially when a powerful adversary is prepared to challenge every issue. If you’re dealing with a “make it or break it moment” like this one, call the team at Berniard Law to get your case on the right track.

    Additional Sources: Mitchells vs. Aaron’s et al

    Written by Berniard Law Firm Blog Writer: Emily Toto

    Additional Berniard Law Firm Articles on Res ipsa loquitur: New Orleans Lawsuit Answers the Question of Who is Liable in Fire that Spreads Case

  • Grilling for a Cause: The Importance of Safety and Liability in Fundraising Events

    When preparing for a fundraiser, you understandably have lots on your mind. You have to coordinate food, RSVPs, and plan the event. However, if you are using something potentially dangerous, such as a propane barbecue, you also need to ensure you take reasonable steps to inspect it for any potential defects. Otherwise, you could be liable for injuries you or others suffer.

    John Palir III was a pastor at Topsy United Pentecostal Church. A week before the church’s barbecue fundraiser, he and a deacon at the church were trying to light the barbecue pit on a barbecue trailer the church owned. When the deacon pressed the pilot button, Palir lit it with a lighter wand. That resulted in a ball of fire that blew Palir out of the trailer, where he hit the deacon’s grandson, who was standing nearby at the time of the explosion. Palir filed a lawsuit against the church and its insurer, GuideOne Insurance Company. 

    At trial, Palir moved to exclude any instruction to the jury about him being liable for the explosion. The trial court allowed the church to present evidence of Palir’s negligence but not about whether Palir knew or should have known the barbecue trailer was defective or hazardous under La. C.C. art. 2317.1. At trial, the jury held Palir was 50% at fault, and the church was also 50% at fault. The jury also found the barbecue trailer was in the Church’s custody, it presented an unreasonable risk of harm to Palir, and the church knew or should have known about its defect. Palir appealed, arguing the jury erred in assigning him 50% of the fault. 

    The appellate court noted at trial witnesses had testified no one else had previously experienced any issues with the barbecue trailer. No church member was responsible for maintaining the barbecue trailer, although people would clean it and fill its propane tank as needed. 

    An expert in propane delivery systems testified the barbecue trailer did not comply with applicable codes and was deteriorating. There appeared to be a lack of maintenance. Palir testified if he had known or had an idea anything was wrong with the barbecue trailer, he would not have used it. He also admitted he did not have expertise in propane delivery systems. 

    The appellate court found the evidence supported the jury’s assignment of 50% of the fault to Palir because a jury could conclude Palir should have had the barbecue trailer regularly inspected and serviced. The appellate court noted Palir had been the assistant pastor at the church when the barbecue trailer was gifted to the church decades ago, so he was aware of the age. It was reasonable to find Palir negligent for having failed to have it inspected. His expert testified that even someone without propane system expertise could have noticed the barbecue trailer’s poor condition.  

    When organizing a fundraiser or any event involving potentially dangerous elements, such as a propane barbecue, ensuring safety measures are in place is paramount. The case of John Palir III and the barbecue trailer explosion is a stark reminder of the importance of diligent inspection and maintenance. The appellate court’s ruling, affirming the jury’s allocation of fault, emphasizes the duty of event organizers to take reasonable steps in preventing potential hazards. Seeking legal counsel in such unfortunate incidents can provide valuable guidance and help navigate potential liability issues. Prioritizing safety and proactively identifying and addressing risks are crucial to protect yourself, your guests, and your organization from potential harm and legal consequences.

    Additional Sources: John Palir, III v. GuideOne Insur. Co., et al.

    Article Written By Berniard Law Firm 

    Additional Berniard Law Firm Article on Defective Products: Cleaning Grandma’s Roof Turns from Chore to Lawsuit as Ouachita Resident Falls from Ladder

  • How Genuine Issues of Material Facts Can Impact a Personal Injury Case

    Personal injury cases are notorious for their intricate nature, often posing challenges in determining fault and establishing liability. Complications escalate further when discrepancies arise regarding the facts surrounding the incident. When blame is uncertain, and parties refuse to accept responsibility, the legal landscape becomes increasingly convoluted. 

    A recent Louisiana Court of Appeals case offered a detailed examination of an issue of material fact in determining fault in a personal injury lawsuit. By exploring the court’s decision and the supporting evidence, we gain insight into the complexities inherent in such cases and their implications on a motion for summary judgment.

    James Palmisano fell at work due to the water in the hallway. Palmisano alleged that the water leaked from the men’s and women’s toilets. He filed a lawsuit for his injuries, claiming two plumbing companies, Prejean and Colville Plumbing & Irrigation, Inc., were called to fix the problem but didn’t. 

    Prejean moved for summary judgment claiming Palmisano could not produce any factual support for his claims. According to Prejean, they owed no duty to Mr. Palmisano because they never worked on the allegedly leaky septic tank. The trial court denied the motion, and they appealed.

    A summary judgment is designed to ensure a quick and efficient adjudication of a case. Summary judgment will be granted if there is no genuine issue to the material fact. Here, Prejean only needed to point out the lack of factual support for one of the essential elements of Palmisano’s case. If Prejean could do that, the burden would shift to Palmisano to prove factual support for all of the elements of his case. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact occurs if a reasonable person could disagree or there could only be one possible conclusion. 

    Under Louisiana Civil Code articles 2315 and 2316, the Palmisano sought damages for injuries he received due to the plumbers’ negligence. Palmisano needed to prove Prejean had to conform to a certain standard of care, they failed to conform to that standard of care, their conduct was a cause-in-fact of the plaintiff’s injury, and there was the legal cause of Palmisano’s injury, as well as actual damages. A repairman owes a duty to third persons if he undertakes a repair and tells the third person that the repair has been made (Pinsonneault v. Merchs. & Farmers Bank & Trust Co.).

    Walter Badeaux, Prejean’s plumber, testified that he did not have the equipment to unstop the main sewage line or pump the septic tank, which appeared to be the problem. He also testified he saw no water on the floor when he walked down the hall. In his affidavit, he claimed he never saw the overflowing toilets because all of his work was done on the septic tank in the back. 

    Palmisano testified that the puddle was clear and covered the width of the hall. He was told a plumber from Colville was working on the septic tank, and another employee told him there was water in the men’s restroom. 

    Ms. Brasseaux, the former administrator at Weatherford, testified that she called two plumbers on the day of the accident. She claimed the Prejean plumber showed up and, after ten minutes, told her there was nothing he could do. Prejean’s dispatch ticket indicated that the tank had been pumped, but Weatherford paid Colville $300 for it to unstop the septic tank and clean out the plug. The trial court stated there is evidence that there was a plumber working at Weatherford on the day of the accident, but there are factual issues that would preclude summary judgment.

    The appeals court decided there were genuine issues of material fact as to whether the Prejean plumber tried to unclog the sewer line on the accident date. The plumber claimed at one point he was at Weatherford for a few minutes, and in his deposition, he claimed he was there for 30-40 minutes. According to Colville’s dispatch tickets, the plumber was busy the day of the accident and did not arrive at Weatherford until the following day. The court found no error in the trial court’s denial decision and denied the supervisory writ application of Prejean and Sons Plumbing, LLC.

    Although a party may not be entirely at fault for an accident, there is not always enough evidence to remove the blame, especially when there are discrepancies. Here, the court decided there were issues of material fact as to whether Prejean was able to fix the plumbing issues Weatherford was dealing with on the day of Plamisano’s accident. Therefore, the motion for summary judgment was denied.

    Additional Sources: James Palmisano, ET AL. v. Colville Plumbing & Irrigation, Inc., ET AL.

    Written by Berniard Law Firm Writer: Alivia Rose

    Additional Berniard Law Firm Article on Personal Injury: A Warning Cone and a Wet Floor, Who Wins in a Slip and Fall Lawsuit?

  • Leaking Hole in Jail Cell, Can you File a Lawsuit for Cruel and Unusual Punishment?

    When prison officials do nothing to fix a large hole that leaks onto the floor in a jail cell, could the inmate have a claim for cruel and unusual punishment? The Fifth Circuit Court of Appeals case answers no. Many instances of inmates complaining about mistreatment are not uncommon to hear about, but when do we draw the line from complaints to unusual punishment? The subsequent lawsuit helps us answer this question of Eighth Amendment rights violations.

    Ceasar Shannon was a Dixon Correctional Institute prisoner for over three years. The cell he was in had a large hole in the ceiling that would leak water when it rained. Shannon, along with other inmates, had made many complaints to maintenance requesting it to be fixed. Many times the guards just put buckets to catch the water dripping. One of these times, Shannon woke up at night to use the bathroom and slipped and fell on the puddle from the leak. Shannon suffered injuries to his back, shoulder, and hip.

    Shannon filed a lawsuit against the Louisiana prison official under 42 U.S.C § 1983 action in federal district court. Under 42 U.S.C § 1983 a person can seek remedies against others who violated their constitutional rights. Shannon claimed the prison guards were aware of the hole in the wall and did nothing to fix the problem, thus showing deliberate indifference to Shannon’s health and safety, violating his Eight Amendment right to be free of cruel and unusual punishment. In response, the State filed a motion to dismiss. The State claimed slip-and-fall cases are negligence claims, not actionable under § 1983. The district court held in favor of the State. Unhappy with the district court’s ruling, Shannon appealed to the Fifth Circuit Court of Appeals.

    The court of appeals reviewed the district court’s grant of the motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6) in favor of the State. The Eighth Amendment is violated when an inmate is subjected to “extreme deprivation of any ‘minimal civilized measure of life’s necessities.’” Gates v. Cook. The court stated that Shannon did not show sufficient facts that would provide enough evidence to show the leak in the cell coming from the home constituted an unsafe environment. The prison guards and other officials did not act with ‘deliberate indifference’ to the inmates’ health or safety by not fixing the leaking hole in the wall. Farmer v. Brennan. 

    The appellate court, therefore, found that Shannon’s allegation that a hole allowing rainwater to enter his cell caused him to slip and fall on this one occasion is not sufficient enough to show cruel and unusual punishment on behalf of the prison officials. This lawsuit shows there must be significant evidence to support a claim of cruel and unusual punishment against state officials. A simple slip and fall from a leaky hole in a jail cell is insufficient to have an action claiming a violation of your Eight Amendment rights.

    Additional Sources: CEASAR SHANNON V. DARREL VANNOY

    Written by Berniard Law Firm Writer Brianna Saroli

    Other Berniard Articles on Cruel and Unusual Punishment Cases: Prisoner Sues Prison For Denial of an Extra Pillow And Mattress

  • Cancer Patient Prevails on Workers’ Compensation Claim Against Exxon

    We have all read headlines about lawsuits filed against gas and energy companies by workers who have developed health problems at their facilities. But what happens when a plaintiff files a lawsuit which could be barred by a workers’ compensation act? Will the claim be able to withstand a peremptory exception? How does the plaintiff fight against such a motion?

    Susan Mulkey appealed a trial court judgment sustaining a peremptory exception dismissing her claims against Exxon Mobil Corporation for damages. Her case arose from the death of her husband, Michael Mulkey Sr., who was exposed to toxic chemicals during his time at Exxon. Mulkey Sr. worked at Exxon for thirty-five years, during which he was exposed to benzene. He was subsequently diagnosed with acute myelogenous leukemia. 

    Mulkey Sr. claimed forty-one employees of Exxon were liable for his damages because of their negligence in properly safeguarding the work environment. When Mulkey Sr. died from leukemia, his wife and children filed a lawsuit for damages. Exxon filed a peremptory exception, claiming Mulkey failed to state a cause of action, which the trial court sustained. Exxon was eventually dismissed from the lawsuit, which Mulkey appealed. 

    Exxon contended Mulkey’s claims were barred by the Louisiana Workers’ Compensation Act (LWCA). Mulkey claims she successfully alleged an intentional tort, an exception to the LWCA. To establish this, an employee must show the employer “1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” See Cador v. Deep South Equipment Co., 166 So.3d 344, 347 (La. Ct. App. 2015). 

    A plaintiff is allowed to show malice, intent and knowledge as part of the claim. The record showed Exxon knew of the risks of benzene exposure. Specifically, its potential to cause cancer. Mulkey showed Exxon employees knew of these problems. Even before Mulkey Sr. began working at Exxon, Exxon knew of benzene’s effect on the blood. Exxon knew prolonged exposure to benzene was incredibly dangerous. Despite this, Exxon exposed Mulkey to the benzene without warning him of its potential impact on his body. Mulkey thus alleged the exposure was without Mulkey Sr.’s consent, and exposure was done with intent. 

    The Louisiana Court of Appeal for the First Circuit found Mulkey’s claim sufficient in proving the element of intent for a tort action. Mulkey provided enough facts to support these findings. Exxon’s immunity under the LWCA therefore did not apply. The trial court’s judgment was reversed and remanded for further proceedings. 

    This case is an important example of why it is imperative to have the necessary evidence required to state a claim. If a party does not have evidence to prove all elements of a claim, their lawsuit might be dismissed for lack of cause of action. Luckily, the plaintiff here was able to prove there was prior knowledge of the effects of benzene exposure. This evidence successfully proved the elements of the case. A lawyer who does his due diligence can successfully state a claim. 

    Additional Sources: MICHAEL MARTIN MULKEY, SR. versus CENTURY INDEMNITY COMPANY, et. al. 

    Written by Berniard Law Firm Blog Writer: Gabriela Chilingarova

    Other Berniard Law Firm Articles on Benzene and Workers’ Compensation: Workers’ Compensation Suit Claiming Benzene Exposure Caused Non-Hodgkin’s Lymphoma Fails

  • Can a School be Held Liable for a Visitor’s Injuries on its Campus?

    Schools are institutions for learning and public meeting spots for numerous events. People come and go daily and the safety of all visitors is paramount. But what happens when a visitor to a school is injured on the premise? Can a school be held liable for a visitor’s injuries on its campus?  The following case out of Kentwood, Louisiana, shows the need for adequate proof when pursuing a trip and fall lawsuit against a school.

    John Williams went to pick up his grandson at Kentwood High School when he fell on what he described as a hole in front of the gym’s entrance. He filed a lawsuit seeking damages from the Tangipahoa Parish School Board (TPSB). TPSB filed for summary judgment, arguing the case should be dismissed because Williams could not show proof of unreasonable risk of harm at the school. The trial court granted the motion. The judgment was then appealed to the Louisiana Court of Appeal First Circuit. 

    In reviewing the matter, the appeals court noted TPSB is a public entity and, under the Louisiana Civil Code, a public entity is responsible for damages caused by the condition of buildings within its care and custody. La.R.S. 9:2800A. This legal concept is vicarious liability, in which a person or company is held liable for acts committed by a third party. 

    To hold TPSB liable for damages, Williams had to show (1) ownership or custody of the building; (2) the owner/custodian knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation. See Broussard v. State ex rel. Office of State Bldgs 113 So.3d 175 (La. 2013). 

    The appeals court found the custodian of a building is only responsible for injuries caused “by a ruinous condition or defective component part that presents an unreasonable risk of harm to others.” Louisiana courts have created a risk-utility balancing test to determine whether there was indeed an unreasonable risk of harm. These four factors are (1) the utility of the complained-of condition, (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition, (3) the cost of preventing the harm, and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature. The appeals court considered these factors while making its decision.

    The appeals court reasoned that a defect that causes an accident does not automatically prove there was an unreasonably dangerous defect present. Old buildings built before the existence of new codes are not required to comply with said codes. 

    In this case, Williams alleged he fell in a hole at the school’s gym entrance. TPSB’s employees submitted affidavits that alleged they had never received reports of problems with Kentwood High’s gymnasium entrance. A coach at Kentwood High claimed the entrance was used daily and frequently, with no complaints of any dangerous conditions. A professional architect stated the building was built before any building codes were written, and there have been no renovations related to the entrance. He concluded the gym entrance had stayed virtually the same for eighty years – since the building was built. 

    Williams provided his professional architect, who noted defects with the building, and TPSB failed to maintain its property. The defects were not related to the hole in question, however. With no rebuttal to the fact that no one had ever reported a complaint at the school about the gym entrance, the appeals court was convinced – there was no unreasonable risk of harm. 

    William’s case demonstrates the principles one will encounter when pursuing an injury lawsuit against a school. It is essential to have enough factual evidence to prove an unreasonable risk of harm in a negligence case such as his. A good lawyer can ensure you meet all the elements necessary to avoid a summary judgment claim. 

    Additional Sources: JOHN WILLIAMS versus ABC INSURANCE COMPANY, KENTWOOD HIGH SCHOOL, THE LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION AND TANGIPAHOA PARISH SCHOOL BOARD

    Written by Berniard Law Firm Blog Writer: Gabriela Chilingarova 

    Other Berniard Law Firm Articles on a School’s Liability: Lafayette Parish School Board Found Liable for School Bus Wrongful Death Lawsuit

  • Baton Rouge Recreation and Park Commission Found Not at Fault for Child’s Injuries

    When someone is injured in an accident, the question often arises, who is at fault? Certain factors must be met to find fault in an injury case. The following case outlines the elements which must be proven to file a personal injury lawsuit against a public park in East Baton Rouge.  

     While climbing spectator bleachers at a park, two-year-old Derrick Albert Jr. (DJ) fell and landed on a concrete surface. DJ’s parents, Brittany Hasbert and Derrick Albert, Sr., brought a claim against the Baton Rouge Recreation and Park Commission (BREC) for the Parish of East Baton Rouge, pursuing damages for the injuries DJ sustained from his fall. 

    After receiving the lawsuit, BREC filed a motion for summary judgment to dismiss their claims. BREC argued DJ would be unable to prove the bleachers were defective and the bleachers were the cause of his injuries. BREC also argued that it didn’t have actual or constructive notice of a defect in the bleachers. 

    The Louisiana Nineteenth Judicial District Court granted BREC’s motion for summary judgment. DJ then appealed to the Louisiana Court of Appeal First Circuit. 

    Summary judgment applies only when there is no genuine issue of material fact after the evidence has been reviewed. La. C.C. P. art. 966(B)(2). A genuine issue consists of a triable issue. See Smith v. Our Lady of the Lake Hosp.  Additionally, a material fact exists when they potentially insure or preclude recovery. See King v. Illinois Nat. Ins. Co.

    In this case, the Court of Appeal investigated the limitation of liability for public bodies. La. R.S. 9:2800. This law states that to prove BREC was liable for DJ’s injuries, the parents must be able to establish five factors: 

    1. That  BREC had custody or ownership of the defective bleachers,
    2. The defect in the bleachers caused an unreasonable risk of harm,
    3. BREC had actual or constructive notice of the defect,
    4. BREC failed to correct the defect in a reasonable time, and 
    5. Causation existed. 

    In support of its motion for summary judgment, BREC presented the affidavit of a senior risk manager for the entity. This affidavit stated there were no reported complaints or other incidents to demonstrate the alleged bleacher defects before DJ’s fall. The affidavit also noted that BREC did monthly inspections on the bleachers, indicating they were defects-free. Further,  the parents’ lawsuit was the first and only complaint involving the bleachers. BREC also introduced testimony from the company’s representative stating the bleachers were routinely inspected for hazards. Finally, BREC introduced testimony from witnesses, including DJ’s grandmother, who said they saw the child walking up the bleachers but did not see how he fell. 

    On the other hand, the parents argued there was a wide gap between the top bleacher seat and the guardrail. This, as well as unstable wooden boards, equates to defects that caused DJ’s fall. Additionally, the parents introduced an affidavit from a certified playground safety expert. This affidavit stated the bleachers were not in compliance with the Consumer Products Safety Commission Bleacher Guidelines. In response, BREC argued the guidelines were not mandatory, and any gaps in the bleachers were open and obvious to any users.  

    The Court of Appeal found that BREC demonstrated an absence of factual support for essential elements of the parents’ claims. In addition, the Court of Appeals held that BREC had no actual or constructive notice of any defect in the bleachers, as there had been no prior complaints or incidents relating to the parents’ arguments. Accordingly, the Court of Appeal affirmed the District Court’s granting of summary judgment in favor of BREC. 

    This case demonstrates the need for understanding the elements that go into a personal injury lawsuit. The fact that someone, including a child, is injured in a public park does not necessarily mean the entity was at fault. An experienced attorney may be needed to explain the elements and determine a lawsuit’s viability. 

    Additional Sources: BRITTANY HASBERT INDIVIDUALLY AND ON BEHALF OF If HER MINOR SON, DERRICK ALBERT, JR., AND DERRICK ALBERT, SR. VERSUS THE RECREATION AND PARK COMMISSION FOR THE PARISH OF EAST BATON ROUGE

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on Summary Judgment: Plaintiff in Lawsuit Involving Injury at St. Francisville Resort Fails to Survive Summary Judgment — Louisiana Personal Injury Lawyer Blog

  • Who is Liable for Injuries for a Slip and Fall on a Public Sidewalk?

    Premises liability is an active area of personal injury law, and accidents occurring on public property are no exception. The question often arises, who is liable for a slip and fall on a public sidewalk? In this case, the Louisiana Third Circuit Court of Appeal was asked to determine the premises liability of the town of Lake Arthur for a fall occurring on a public sidewalk built and maintained by this public entity.

    On July 11, 2014, Robin Rogers Richard fell while walking along a sidewalk in Lake Arthur. The portion of the sidewalk where her fall occurred was a driveway that allowed maintenance vehicles to access a public park, with a sloping transition on either side running perpendicular to the street. This portion of the sidewalk was completed in September 2013 by John Anderson Concrete Finishes, Inc. (Anderson), under the direction of Robert Bertrand, the major of Lake Arthur. 

    Ms. Richard filed a motion for summary judgment on the liability issue, arguing the slope of the transition area did not meet certain state and national requirements and was, therefore, defective per se. However, at her deposition, she indicated that her last step before her fall was on a flat portion of the new sidewalk, not the sloped portion. In response, Lake Arthur, Anderson, and its insurer, Seneca Specialty Insurance Co, filed motions for summary judgment alleging statutory immunity from liability and they were not liable because the condition of the sidewalk was open and obvious.

    After a hearing, the trial court granted summary judgment in favor of the defendants, finding there was no evidence the sloped area caused Ms. Richard’s fall and the condition of the sidewalk was open and obvious.

    On appeal, Richards asserts three assignments of error: the trial judge erred by not granting plaintiffs’ summary judgment, the trial judge erred by granting defendants’ summary judgments, and alternatively, the trial judge erred by not finding that genuine material issues of facts in dispute preclude summary judgments if the appellate court does not grant plaintiffs’ motion for summary judgment.

    To prevail in a case against a public entity for a fall on a sidewalk, the plaintiff must prove the public entity’s custody or ownership of the defective thing, the defect of the thing created an unreasonable risk of harm, the public entity had actual of constructive notice of this defect, and the public entity failed to take corrective action within a reasonable time. Campbell v. Evangeline Parish Police Jury, 2014-1301, ppg. 7-8 (La. App. 3 Cir. 5/6/15), 164 So.3d 408, 415, writ denied, 15-1067 (La. 9/11/15), 176 So.3d 1043 (quoting Chamber v. Village of Moreauville, 11-898 (La. 1/24/12), 85 So.3d 593). See also La. R.S. 9:2800.

    Regarding the first element, Lake Arthur had custody of the sidewalk at the time of Ms. Richard’s fall. The substantive issue, in this case, concerns the remaining elements, namely whether the sidewalk, as constructed, created an unreasonable risk of harm. The Louisiana Supreme Court has adopted a four-factor risk-utility balancing test for determining whether a condition is unreasonably dangerous, in which the court weighs the utility of the thing, the likelihood and magnitude of harm (including the obviousness and apparentness of the condition), the cost of preventing the harm, and the nature of the plaintiffs’ activities in terms of its social activity of whether it is dangerous by nature. Pryor v. Iberia Parish Sch. Bd, 10-1683, p. 4 (La. 3/15/11), 60 So.3d 594, 597 

    The court held that evidence, in this case, established the utility of the sidewalk and driveway since it allowed vehicles to enter the park without damaging their undersides and without a ramp protruding into the road. Further, the court found the likelihood and magnitude of harm were low since no person had reported an injury because of the sidewalk condition before Ms. Richard, and the state of the sidewalk was obvious and apparent. For example, Ms. Richard’s testimony revealed that she knew there was a driveway at this point in the sidewalk before her fall. In addition, photographs of this area show the area was lighter in color than the older portions of the sidewalk, with signs indicating where the driveway was located. Crucially, the court held the condition of the sidewalk as Ms. Richard saw it, not as measured by a survey from an engineer pursuant to this litigation. 

    The appeals court also held there was no evidence of steps the town could have taken to make the area more noticeable. The sidewalk was being used for its intended purpose and this social utility was not dangerous by nature. 

    Taken together, the court found the obvious and apparent condition of the sidewalk was sufficient to show it was not unreasonably dangerous, and the Richards were thus unable to prove an essential element of their claim against the defendants. The court, therefore, affirmed that judgment of the trial court dismissing the Richards’ claims against the Town of Lake Arthur, Anderson, and Seneca Insurance, in addition to assessing costs to the Richards.

    This case demonstrates that premises liability of public entities often hinges on what efforts the public entity has made to ensure public safety, in addition to providing an example where such actions successfully avoided liability after an accident.

    Additional Sources: Richard v. Town of Lake Arthur, 16-113 (La. 3rd Cir. 06/01/16). 

    Written by: Hannah Keller

    Additional Berniard Law Firm Article on Premises Liability: When a Building’s Ledge is Open and Obvious, Building Owner Not Held Liable for Fall