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Category: Negligence Claims

  • Are You Required to Plead the Word “Conspiracy” in Louisiana For Solidary Liability?

    In Louisiana, a conspiracy is a combination of two or more persons to do something unlawful, either as a means or as an ultimate end. Once a conspiracy has been established, an act done by one in the furtherance of the unlawful act is, by law, the act of all others involved in the conspiracy. 

    If proven, a conspiracy can allow for solidary liability among all of the co-conspirators for the damage caused. Solidary liability means that each responsible party is independently liable for the entire obligation, responsibility, or debt to the party who was harmed by any one of them. Everett Curole’ lawsuit after an assault and battery at his home, shows the power of the legal system to hold parties accountable for their nefarious acts.

    In the early morning of December 31, 2002, Bonnie Delcambre, Quinn Delcambre, Glenn Gadrow, Tricia Menard, Rory Delcambre, Lori Toups, and Rayford Champagne arrived at the at the home of Everett and Charlene Curole. Bonnie kicked in the front door and everyone else followed her into the home. Bonnie woke Mrs. Carole to confront her and Rory, Quinn, and Glenn severely beat Mr. Carole. During the beating, the others punched holes in the walls. The assailants then fled the scene,, and Mrs. Curole called 911. 

    Deputies from the Vermilion Parish Sherriff’s Office arrived at the Curole residence at 4:12 am. Mr. Curole went by ambulance to the Abbeville General Hospital. He sustained a broken nose, broken/cracked ribs, and lacerations to his face, head, and kidney. After leaving the Curole home, the assailants all (except Quinn) went to have breakfast together. Afterward, they were confronted by the police. 

    Criminal Charges were filed against Bonnie Delcambre, Quinn Delcambre, and Glenn Gadrow,, and civil lawsuits were brought against Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, and Glenn Gadrow. Mr. Curole, alleged that the fault, negligence, actions, and omissions of duty of the defendants, Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, Lori Toups, Rayford Champagne and Glenn Gadrow, produced, as a cause in fact, physical injuries he sustained. 

    During the civil process the question arose whether or not a conspiracy occurred between the defendants involved to harm Mr. Curole. The trial court found that no conspiracy had taken place and that since the Curoles did not initially plead conspiracy particularly, testimonies related to the conspiracy were suppressed.  However, the Curole’s appealed this. The Curoles claimed that the Trial Court committed an error by ruling that the plaintiffs were required to plead conspiracy and by disallowing testimony related to the conspiracy from the trial. 

    The Rule under the Louisiana Code of Civil Procedure is that pleadings are based solely on facts. The Appeals Court reasoned, Curoles’ pleadings sufficiently complied with the pleading requirements of the Louisiana Code of Civil Procedure as they do not require pleadings to point specifically at conspiracy. According to the Louisiana Supreme Court in Greemon v. City of Bossier City, Curoles were only required to put forth the material facts upon which the cause of action was based. Further, Ross v. Conoco, states a conspiracy does not need to be explicitly pled, a plaintiff must just allege it in some way within the pleadings.

    If a conspiracy had taken place, the facts would allude to it. For collusion to occur, Louisiana Civil Code Article 2324(A) has requirements that must be met. This includes a meeting of the minds or the collusion between persons for the purpose of committing a crime. Based on the facts, the group was together when Bonnie Delcambre became enraged with the Curoles and decided to go to their home to confront them. Knowing Bonnie’s anger towards the situation, they all followed her. Evidence of a conspiracy can be overt actions or implied from the knowledge of the alleged co-conspirator of the criminal actions taken by the other co-conspirator. If a conspiracy is conceived and executed and an injury results, the person injured has a cause of action against all of the conspirators. 

    The Court of Appeals found that a conspiracy may be proved through the evidence. The Trial Court also made an error in finding that defendants were not conspirators and that they did not all intend to cause harm to the Curoles. The Appeals Court held that common sense could establish that breaking into someone’s house in the middle of the night to confront them would not be a friendly conversation. 

    The evidence showed that the defendants left one bar and traveled together in vehicles in search of the Curoles; they went to several bars before proceeding to the Curole residence. Upon arrival, they all participated in furtherance of the conspiracy by breaking into the home and being present during the assault and battery of Mr. Curole. The Court of Appeals reasoned this evidence was sufficient. It was clear to the Court, each of the defendants participated in the furtherance of the conspiracy to find Charlene Curole and break into the Curoles’ home for the obvious purpose of confronting Charlene and causing havoc. Therefore regardless of whether not the word “conspiracy” was written in the Curole’s lawsuit one had occurred.

    A good lawyer helps the plaintiffs bring forward a pleading that follows the Louisiana code and protect their rights when pleading rules may impact their day in court. The Curoles ultimately got the ruling they needed to proceed with their conspiracy claims that could ultimately help their case. 

    Other Sources:  EVERETT CUROLE, JR., ET AL. VERSUS RORY DELCAMBRE, ET AL.

    Written by: Margaret Cotter

    Other Berniard Law Firm Articles on Louisiana Civil Pleadings Requirements: Louisiana’s Fact-Pleading System Allows Woman to Recover for Battery When Only Suing for Negligence

  • Angola Prisoner Denied Requested Shoulder Surgery After Review of Medical Records

    Rick Sheppard, an inmate in the custody of the Louisiana Department of Public Safety and Corrections, injured his left shoulder two separate times while participating in the Angola Prison Rodeo. After seeing two specialists, Sheppard maintained that the medication and physical therapy regimen he had been following was ineffective. When Sheppard filed an administrative petition, he requested reparative surgery, treatment by a chiropractor, injections into the shoulder, blood testing to determine the effects of his medication, related medical records, and reimbursement of all costs. 

    In a two-step response, DPSC first stated that Sheppard’s request for proper medical attention had been granted since he had improved after receiving injections and physical therapy for his shoulder. In the second response, they asserted that Sheppard’s past treatment and ongoing care plan were adequate, and no further investigation into his claim would occur. 

    Under Louisiana law, all civil and criminal actions arising out of the incarceration of state prisoners are heard by a commissioner. This commissioner makes recommendations for the disposition of a case, which are submitted to a district judge. The district judge then accepts, modifies, or rejects the recommendation. La. R.S. l3:713(C)(l), (2), & (5)

    When the commissioner reviewed the claim, he found that DPSC had addressed Sheppard’s need to see a medical doctor but had not investigated his request for surgery. The commissioner remanded the matter back to DPSC to reconsider this claim. In their response, DPSC detailed Sheppard’s care thus far, including steroid injections, chiropractic care, oral medications, and physical therapy exercises. DPSC again asserted that this medical care was adequate. DPSC, Sheppard, and the commissioner had several more conferences regarding the claim over the next two years. Finally, Sheppard filed a motion requesting a ruling on the merits, asking that he receive surgery. 

    The commissioner subsequently issued a recommendation stating that DPSC’s decision was “arbitrary and capricious” and ordering that DPSC obtain treatment with an orthopedist who could perform surgery within 30 days if indicated. However, the commissioner amended the recommendation months later to include stronger language, stating that the surgery should be “performed as expeditiously as possible” if necessary.

    In response to this recommendation, DPSC presented the commissioner with several exhibits consisting of notes from physicians who saw Sheppard for his injury, all of which noted that surgery was not recommended in his case. Despite this, the district court adopted the commissioner’s recommendation and ruled that surgery should be performed within 15 days. 

    DPSC appealed the district court’s judgment, alleging they erred in ruling (1) That surgery was necessary, (2) That DPSC’s administrative decision was “arbitrary and capricious,” and (3) That DPSC should pay all costs of the surgery. The Court of Appeals is not required to defer to the district court’s ruling under La. R. S. 15: 1177. After reviewing the record, they disagreed with the district court’s ruling.

    The Court of Appeals held Physician’s notes from visits between 2011 and 2016 indicated that surgery was not required and Sheppard had improved enough with physical therapy to be discharged from the program. In addition, the Court reasoned notes on a 2014 MRI performed by a neurosurgeon also stated, “NOT SURGICAL CASE.” The Court of Appeals then reversed the previous ruling. Instead, it remanded the case to the district court, instructing them to have Sheppard seen by another orthopedist to determine his treatment plan. 

    In this case, the appeals court held the content of Sheppard’s medical records did not support his claim that surgery was necessary to treat his shoulder injuries. Although DPSC underwent many years of litigation in this matter, its efforts were vindicated by the legal process. 

    Other Sources: RICK SHEPPARD # 108703 VERSUS LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

    Article Written by a Berniard Law Firm Writer

    Other Berniard Law Firm Articles on Injured Prisoners Rights: Is a Sheriff Liable for a Prisoner Injured During a Work Release?

  • Medical Malpractice Lawsuit Tossed Due to Louisiana’s Prescriptive Period

    A man is in the hands of a facility tasked with providing sufficient medical care. Instead of meeting this standard of care and due diligence, the facility fails to adjust the man’s diet, and he chokes on solid food that he should not eat, leading to his death. When his parents and children bring multiple complaints of medical malpractice, his children’s claim gets dismissed despite the apparent negligence of the facility. Why did that happen?

    Joseph Triggs was this very man. While in the care of the Audubon Health and Rehabilitation Center (“Audubon”), Mr. Triggs choked on solid food and died in January 2013. A medical malpractice claim naming Mr. Triggs as the plaintiff was brought eight months after his death, alleging that the facility’s failure to adjust Mr. Triggs’s diet led to his death. Aubudon did not adjust his diet despite difficulty chewing and swallowing solid food. 

    As is the process for medical malpractice in Louisiana, the complaint requested that a medical review panel assess the situation. Nearly twenty-two months after Mr. Triggs passed, a request was made to amend the complaint, adding Mr. Triggs’s children as claimants, along with the decedent’s Estate. Finally, over two-and-a-half years after Mr. Triggs died, the medical review panel unanimously decided that Audubon had been negligent in caring for Mr. Triggs, and Mr. Triggs’s children and Estate filed a lawsuit in the trial court on a claim of medical malpractice. 

    Audubon then raised an exception of prescription, claiming that the time to file a medical malpractice suit had expired. Ultimately, the trial court agreed and dismissed the claim. Mr. Trigg’s children appealed on the allegation that the trial court was wrong in finding that the prescriptive period had run.

    Various codes govern medical malpractice lawsuits in Louisiana. The prescriptive period for medical malpractice lawsuits is laid out in LSA-R.S. 9.5628(A), stating that these cases must be brought within one year of the alleged malpractice or discovery thereof. The Louisiana Medical Malpractice Act (“the MMA”) requires a proposed medical malpractice complaint to be brought before a medical review panel before bringing the claim to court. See LSA-RS 40:1231.8(A)(1)(a). The prescriptive one-year period should be suspended while such medical review is pending and for ninety days after the panel makes an assessment. See LSA-RS 40:1231.8(A)(2)(a). 

    In the present case, the complaint was brought to court more than one year after Mr. Triggs’s death. The complaint was, therefore, only timely if the original claim, in which Mr. Triggs was the only claimant named, permitted the suspension of the prescriptive period until the panel released its finding. The initial claim may have sufficiently suspended the prescription period if it suspended the prescription for all related claims or if the amended complaint is sufficiently related to the original complaint. 

    Mr. Triggs’s children argued that the original complaint, in which they were not named, served to suspend the prescription period for all claims of damage resulting from the alleged negligence. See Truxillo v. Thomas, 2016-2018 (La. App. 4th Cir. 8/31/16), 200 So. 3d 972. The Louisiana court of appeals previously held that the MMA requiring that claimants be named in the review panel request does not indicate that all potential claimants be named for the following claims to be covered by the suspension of the prescription. 

    However, courts have also held in a more recent case, Parks v. Louisiana Guest House, Inc., that a malpractice claim brought by a party, deceased before the medical review panel was convened, did not suspend the prescription period for the decedent’s children’s claim. See Park v. Louisiana Guest House, Inc., 2013-2121, 2013-2122 (La. App. 1st Cir. 9/30/14), 155 So. 3d 609, 613. In Parks, the court more narrowly interpreted the MMA to require that all claimants be named in the medical review request for the prescriptive suspension to apply. As that is the more recent case on point, the court in Trigg’s case relied on the reasoning in Parks to decide that Mr. Triggs’s children should have their claim dismissed, as the prescriptive period had run. 

    As is often the case, the biggest obstacle to getting your day in court can be operating by the book. The procedure of the court is strict and can be complicated. Even when the basis of your complaint is valid and supported by external fact-finders, as it was in this case, your case could be dismissed if there is an issue with procedure. You must retain counsel that understands both your case and the ins and outs of legal procedures. Losing your chance to bring a valid cause of action due to filing, documentation, or other procedural issues is something you want to avoid. 

    Additional Sources: Rickerson v. Audubon Health & Rehab. Ctr.

    Written by Berniard Law Firm Blog Writer: Callie Ericksen

    Additional Berniard Law Firm Article on Medical Malpractice and Prescriptive Periods: Late Filing Bars Medical Malpractice Claim Against Tulane-Lakeside Hospital

  • Louisiana Restaurant Evades Liability For Speculative Slip-and-Fall Claim

    Slip-and-fall cases are prevalent in the restaurant industry. In handling various kinds of food and drink, it makes sense that sometimes, things end up on the floor and can cause a slip hazard for customers. But when a customer falls without a clear cause, how can the court determine who is at fault?

    Laurita Guillory sued Barco Enterprises (“Barco”), owner of The Chimes Restaurant, after a fall at their restaurant. Guillory alleged that, when visiting the restaurant, she slipped and fell by the wait station. She claimed that a mysterious substance was spilled on the floor by the restaurant waitstaff, and it caused her fall. With these allegations, Guillory filed a lawsuit under the Merchant Liability Statute.

    Based on the assertion that Guillory failed to prove her allegation sufficiently, Barco filed a motion for summary judgment and supported it with several documents and affidavits. These documents included testimony from Guillory that she never saw anything spilled on the floor by the waitstaff and a manager’s affidavit stating that nothing on the floor could have caused a fall. The trial court granted the motion because Guillory failed to show that the restaurant had caused a dangerous condition or knew about a hazardous situation. Guillory appealed the trial court’s decision dismissing her lawsuit. 

    A motion for summary judgment is appropriate if, after sufficient discovery, the motion and its supporting evidence show no dispute of material fact. See https://www.legis.la.gov/legis/Law.aspx?d=112309. Suppose the party requesting the motion doesn’t have the burden of proof at trial for that particular issue. In that case, their motion can be sufficient for summary judgment if they show that the other party lacks factual support for any element of their claim. See Id. at 966D(1). The party with the burden of proof at trial cannot rely on mere speculation or conclusory allegations to support the cause of action and show an actual dispute of fact. See Willis v. Medders, 00-2507 (La. 12/8/00), 775 So. 2d 1049, 1050. 

    Therefore, for a plaintiff to have a valid cause of action under the aforementioned Merchant Liability Statute, the plaintiff must bring sufficient evidence to show the elements of her cause of action and that the merchant created or knew of a condition that was dangerous to customers but failed to address the condition. See La. R.S. 9:2800.6B. 

    The appeals court predominantly engaged in an analysis of whether or not the restaurant knew about or caused a dangerous, slippery substance on the floor. Guillory failed to prove that the allegedly dangerous condition of the floor was directly the fault of the restaurant owners and workers. Instead, Guillory merely presented a conclusory allegation that she must have fallen due to something spilled by the waitstaff because she fell by the wait station. However, the court was unconvinced by this connection–Guillory could neither identify what substance caused her fall nor that only the waitstaff could have spilled something in a spot frequented by customers. Since it is not reasonable for the court to conclude that only the restaurant and its workers could have caused a hazardous condition, Guillory failed to prove this element of merchant liability.

    The appellate court affirmed the trial court’s dismissal of Guillory’s claim against Barco. Primarily, Guillory’s claim failed again because of insufficient proof to connect fault of her fall to the store owners. Guillory bore the burden of proving that the restaurant owners and employees created the condition that led to her fall; however, she relied on speculation and conclusory allegations rather than actual facts to support her claim. 

    In the end, mere speculation is insufficient to prove anything in a court of law. One must present evidence and facts for a lawsuit to succeed. Attorneys who are experts in trial procedure know how to procure and present facts so that your case will triumph. 

    Additional Sources: Guillory v. Chimes And/Or Barco Enters., Inc.

    Written by Berniard Law Firm Blog Writer: Callie Ericksen

    Additional Berniard Law Firm Article on Slip-and-Fall Liability for Merchants: Baton Rouge Restaurant Owner Not Responsible for Slip and Fall Accident

  • Where There’s Smoke, There’s a Lawsuit: Determining Liability for a Car Accident Resulting from a Marsh Fire

    The phrase, “where there’s smoke, there’s fire,” is often used to describe situations where one thing almost certainly indicates the presence of another. However, establishing a contributing factor to a car accident and liability for negligence does not always follow so direct a relationship.

    Shortly before Tropical Storm Lee reached the marshlands of Oak Island just outside of New Orleans in September 2011, an employee of the LPC (“Little Pine”), the entity that owns Oak Island, saw traces of smoke and reported it to the Fire Department (NOFD). NOFD investigated the scene and found a fire, but the area from which the smoke was coming was not accessible to fire crews. The onset of Tropical Storm Lee made it even more difficult for NOFD, which had called in the Louisiana Army National Guard — to reach the source of the smoke. Helicopter water drops were used to treat the fire, but access by boat or other means remained impossible. The fire continued to burn for months under the daily monitoring of NOFD.

    On the morning of December 29, 2011, drivers traveling on Interstate 10 past the Oak Island marshlands suddenly encountered thick, dense fog and smoke clouds, resulting in nearly zero visibility. Scott Lowe, a passenger in one of the vehicles traveling on I-10, was involved in a multi-car accident caused by poor visibility conditions. Lowe filed a lawsuit against Little Pine, arguing that it acted negligently by allowing the marsh fire to burn for months after it began, allowing smoke to obstruct visibility along a major roadway, and failing to exercise due care regarding the safety of others. Little Pine filed a motion for summary judgment, arguing that there was no genuine issue of material fact about whether Little Pine was liable for an “unavoidable Act of God/force majeure.” In addition, Little Pine asserted it owed no duty to Lowe to extinguish the marsh fire. The trial court granted Little Pine’s motion for summary judgment, and Lowe appealed.

    Louisiana’s Court of Appeal for the First Circuit began with a review of the duty-risk analysis under state law. The five elements under the analysis include: (1) whether there was a duty to conform to a specific standard, (2) whether the duty was breached by failure to conform to the standard, (3) whether the standard conducted was a cause-in-fact of the resulted injury, (4) whether the conduct was within the scope of protection for a legal cause of action for the injury, and (5) whether there was actual harm or damage. See La. C. C. art. 2315. On the application of the first element to the question of whether Little Pine had a legal duty to extinguish or otherwise control the marsh fire, the Court referenced Louisiana state law that vests in a fire protection officer the sole authority, command, and control over a situation that develops which the services of fire safety personnel are summoned. See La. R. S. art 22:1971.

    In the Court’s view, once Little Pine reported the fire to NOFD and NOFD responded, there was no further legal duty owed to Lowe (or any other person) by Little Pine. Therefore, Little Pine had no duty to extinguish the marsh fire, and its failure did not constitute negligence under Louisiana law. As a result, the Court of Appeal affirmed the trial court’s grant of summary judgment in favor of Little Pine, and Lowe could not recover for his injuries in the accident.

    This case demonstrates the need to take care when driving through smoke-filled air. Unfortunately for Lowe, his lawsuit did not end as he would have liked. It is essential to retain a skilled attorney in cases such as this.

     Additional Sources: LOWE v. LITTLE PINE ISLAND CORP. 

     Written by Berniard Law Firm Blog Writer: Gina McKlveen

     Additional Berniard Law Firm Articles on Negligence: Man Injured in the Back of Police Cruiser Loses in Negligence Suit; Appellate Court Rejects Appeal from Transportation Company Regarding Comparative Fault and Award; Court Allows Lawsuit Against Casino Involving Fall on Escalator to Proceed

  • Houma Residents Injured by Termite Treatment Shut Out of Court for Failure to Offer Qualified Expert Witnesses

    Expert testimony is one tool litigants can use to prove their arguments in a court of law. Expert witnesses are highly credible individuals with advanced knowledge in a particular field in a lawsuit. The testimony of experts is meant to assist the court in understanding the evidence in matters of fact. But not just anyone claiming to be an expert can testify on behalf of a litigant. As homeowners Blake and Courtney Freeman learned in a painful way, the testimony of six expert witnesses they offered was denied admissibility because it failed to meet Louisiana’s standards for expert testimony evidence.

     The Freeman family purchased a home in Houma, Louisiana, which at the time contained prior termite damage previously treated by Fon’s Pest Management. In 2010, the Freemans began renovating their kitchen and discovered additional termite damage in the kitchen cabinets. As a result, Fon’s Pest Management again treated the Freemans’ home on two separate occasions by drilling holes in the floor, injecting termiticide into the soil beneath the floor, and using spot treatments of termiticide around the house. The spot treatment chemical contained fipronil, a colorless, odorless neurotoxin. Following Fon’s Pest Management’s treatments, the Freemans began to experience health problems that they believed were caused by the termiticide used in their home. As a result, the Freemans moved out of their house and filed an action against Fon’s Pest Management for damages due to injuries caused by the exposure to fipronil. 

     In support of their theory of recovery, the Freemans relied on the expert testimony of three toxicologists, an engineer, an industrial hygienist, and a professional counselor. Fon’s Pest Management filed motions in limine, arguing that none of the expert’s testimony should be admitted into evidence because they failed to meet the required legal standard for experts. A motion in limine is filed by a party who seeks to have the court limit or prevent certain evidence from being presented by the opposing party at trial. These motions, usually filed before the commencement of a trial, are handled outside of the jury’s hearing. The trial court granted Fon’s Pest Management’s motions to exclude the Freemans’ expert testimony and subsequently granted Fon’s Pest Management’s motion for summary judgment.

     On appeal, Louisiana’s First Circuit Court of Appeal reviewed the U.S. Supreme Court’s four-factor “Daubert Test” used to determine whether an expert’s testimony should be accepted into evidence. The factors include: (1) whether the theory or technique has been tested; (2) whether it has been subject to peer review; (3) whether there is a known or potential rate of error; and (4) whether the methodology has gained general acceptance. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 593-94 (1993). Additionally, the Court noted that expert testimony is subject to Louisiana’s rules of evidence. For expert testimony, the Louisiana Code of Evidence states that if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, then the testimony will be admissible to the court. See La. C.E. art. 702. In examining the record, the Court noted that none of the experts offered by the Freemans had the requisite knowledge of fipronil, none wrote any peer-reviewed articles on the effects of pesticides on humans, none had conducted studies reviewed by other experts, and none could point to any biological data supporting the Freemans’ claims. Accordingly, the Court affirmed the trial court’s exclusion of the Freemans’ expert testimony and granted summary judgment in favor of Fon’s Pest Management.

    The Freemans’ situation exemplifies the importance of retaining an expert attorney experienced in litigation involving expert witnesses. By failing to offer even one expert the court deemed qualified to present testimony in favor of their theory of recovery, the Freemans lost the opportunity to have their day in court. 

     Additional Sources: FREEMAN v. FON’S PEST MANAGEMENT, INC.

     Written by Berniard Law Firm Blog Writer: Gina McKlveen

     Additional Berniard Law Firm Articles on Expert Testimony: Baton Rouge Medical Malpractice Claim Dismissed Due to Lack of Expert Testimony; Medical Malpractice Case Dismissal Affirmed for Lack of Expert Testimony in Split Decision

  • Baton Rouge Car Dealer Escapes Vicarious Liability Claim in Accident Involving Motorcyclist

    It’s a common scenario:  a potential buyer visits a car lot, finds a vehicle he’d like to test drive, and heads out onto the road with the salesperson in the passenger seat. What happens, though, if an accident occurs during the test drive? Suppose the potential buyer loses control of the vehicle while driving — who is responsible for injuries and property damage that result?

    On October 27, 2007, Ronald Branstetter was riding his motorcycle on Airline Highway in Baton Rouge when he was allegedly forced off the highway. Branstetter states that defendants Beal and Rives were test-driving a 1988 Ford Bronco when Beal lost control of the truck. To avoid a collision, Branstetter swerved off of the highway, causing him to suffer injuries. Branstetter brought a lawsuit against Beal and Rives to recover damages from his injuries, alleging that the injuries were caused by Beal’s and Rives’s negligence. Branstetter also named Millenium Auto Sales (“Millenium”) as a defendant in the case, alleging that Millenium owned the Ford Bronco and that the company employed Rives, giving rise to a vicarious liability claim.

    Under Louisiana law, employers are generally responsible for the damage caused by their employees, but only if the employee is acting within the course and scope of his employment. La. C.C. art. 2320. A “servant,” or employee, is considered to be a person under the control of another employed to perform services. On the other hand, a non-servant agent may contribute to the employer’s business but is not under the employer’s control. In determining if there is a master-servant relationship, courts often look to factors including compensation, the status of the employee, performance of a specific mission, the intensity of the relationship, control, the role of the employer in exercising control, and the direct benefit to the company. See Cason v. Saniford, 148 So. 3d 8 (La. Ct. App. 2014). 

    Millenium filed a motion for summary judgment, arguing that there was no genuine issue of material fact and seeking dismissal of Branstetter’s claims. Millenium attached a deposition from Rives, who averred that he, and not Millennium, owned the Ford Bronco and that he was not an employee of the car dealer on the date of the accident. Rives also stated that there was no written agreement for a commission to be paid to him for the Bronco’s sale. In opposition to Millenium’s motion, Branstetter submitted evidence that Rives’s father, Eric Anders, owned Millenium and that Anders allowed Rives to display the Bronco on Millenium’s car lot to generate more sales interest.

    The trial court granted Millenium’s motion for summary judgment, which dismissed Branstetter’s claims, finding that there was no vicarious liability because Rives was not an employee of Millennium. The court also found that Millenium did not have ownership of the Ford Bronco because Rives’ deposition testimony showed that there was no specific compensation amount to be paid. Branstetter appealed to Louisiana’s First Circuit Court of Appeal.

    On review, the Court of Appeals found that the trial court correctly determined that the evidence did not establish a master-servant relationship; therefore, Rives was not an employee of Millenium at the time of the accident. Because Rives was not an employee, the company could not be vicariously liable for Branstetter’s claims. Additionally, the Court of Appeals affirmed the finding that Millenium was not the owner of the Bronco and affirmed the trial court’s grant of summary judgment. 

    Vicarious liability is a complex legal issue that balances different factors. On the one hand, Louisiana jurisprudence is well settled that employers are responsible for the actions of their employees; on the other, liability should not be assumed to attach to an “employer” without sufficient evidence to establish a legitimate employer-employee relationship. Due to the complexity of the issue, anyone injured by someone who appears to be operating within the scope of his employment at the time of the incident should obtain the services of an experienced attorney.

    Additional Sources:  BRANSTETTER v. RIVES.

    Berniard Law Firm Blog Writer:  Madyson Hopkins

    Additional Berniard Law Firm Articles on Vicarious Liability:  Bienville Parish Auto Accident Raises Questions of Vicarious Liability

  • Louisiana Court Holds that Bicycles are Not “Motorized Vehicles” Under Louisiana Law Following Ponchatoula Collision

    Sometimes words that we think have clear meanings become less than clear when used in the law. For instance, if a state statute prohibits cars from driving on park grounds, we would naturally conclude that a regular passenger vehicle is forbidden from entering the park. However, what about a toy car? Would a toy car be banned as well? It would be ridiculous to think that the legislature intended to forbid toy cars and passenger vehicles from park property. In some cases, courts are called upon to apply statutes to situations that, based on the plain language of the law, are not entirely clear. On the other hand, in cases where the rule is clearly written, Louisiana courts favor a direct application of the law. 

    William Foster, Jr. was riding his bicycle westbound on Pine Street in Ponchatoula, Louisiana, when he was struck by a Toyota Sequoia driven by Carol Kinchen. At the hospital, Foster was treated for the injuries he sustained in the collision. The hospital staff also did blood work and found that Foster had a blood alcohol content of 0.084% at the time of the accident. Foster filed a lawsuit seeking to recover for personal injuries against Kinchen, arguing that the accident was caused by Kinchen’s negligence.

    Kinchen filed a motion for summary judgment, arguing that, according to Louisiana Revised Statutes 9:2798.4, she was free from liability because Foster was intoxicated when the accident occurred. The trial court dismissed the lawsuit, and Foster appealed to Louisiana’s First Circuit Court of Appeal. He argued that the trial court’s decision was improper because the statute relied upon by Kinchen concerned the operation of “motor vehicles” while under the influence of alcohol, yet, Foster was riding a bicycle at the time of the accident.  

    According to Louisiana law, a “motor vehicle” is a self-propelled vehicle or a vehicle that runs on electric power from overhead trolley wires. Louisiana law does not include motorized bicycles under this definition. La. R.S. 32:1. When a statute’s language is clear and unambiguous, a court will apply the language as written without any further interpretation or search of the legislature’s intent. La. R.S 1:4.

    On appeal, Kinchen argued that a bicycle was a motor vehicle because specific statutes in Louisiana require that bicyclists be given all the rights that a motor vehicle driver enjoys. Kinchen also cited a law designating a bicycle or a ridden animal as a “vehicle.” However, the Appellate Court was not convinced by Kinchen’s arguments and noted a difference between a “motor vehicle” and a “vehicle.” And that the statute that Foster cited specifically referred to motor vehicles, not vehicles. Because Louisiana Revised Statutes 32:1 defines “motor vehicles” to exclude motorized bicycles, the Court concluded that non-motorized, pedaled bicycles were also excluded. The Appellate Court reversed the trial court’s grant of summary judgment in Kinchen’s favor and remanded the case for further proceedings.

    In general, judges will not go out of their way to interpret a clear and unambiguous statute. Otherwise, judges will essentially become legislators themselves, disrupting the separation of powers between the legislative and judicial branches of the Louisiana government. Still, legislative interpretation is far from an exact science, so anyone involved in a personal injury lawsuit that turns on the specific wording of a statute to establish liability would be well advised to retain an experienced attorney.

    Additional Source:  FOSTER v. KINCHEN 

    Written by Berniard Law Firm Blog Writer:  Peter Lee

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  • Court Clarifies Use of Differential Diagnosis in Louisiana Medical Malpractice Case

    Does a physician’s use of differential diagnosis raise a medical malpractice issue in Louisiana? That question is at the center of a recent medical malpractice case out of Lake Charles. The Louisiana Third Circuit Court of Appeal addresses liability attached to a method of clinical diagnosis known as a differential diagnosis.  

    On February 23, 2011, after experiencing two seizure-like episodes, Ms. Judith LeBlanc was seen in the emergency room of CHRISTUS Health Southwestern Louisiana (St. Patrick’s Hospital)  by her primary care physician Dr. Lewis. Ms. LeBlanc was being treated for a jaw infection and scheduled for a tooth extraction the next day. Dr. Lewis ordered several tests over the next few days to rule out multiple potential underlying conditions. Although Dr. Lewis made a differential diagnosis that included sepsis as a possibility, Ms. LeBlanc was not treated for sepsis because she displayed no signs of it. Two days after her discharge, Ms. LeBlanc developed seizure activity and cardiopulmonary arrest and eventually passed.  

    A medical malpractice lawsuit was filed by Leblanc’s family. As part of the lawsuit, a Medical Review Panel met and found that neither St. Patrick’s nor Dr. Lewis breached the standard of care. St. Patrick’s and Dr. Lewis relied upon the Medical Review Panel’s findings in filing motions for summary judgment to dismiss the lawsuit.   The Fourteenth Judicial District Court for the Parish of Calcasieu granted those summary judgment motions and Leblanc appealed.  

    In medical malpractice, a defendant must show that there is an absence of factual support for one or more elements essential to a plaintiff’s claim to show that there is no genuine issue of material fact. There are three elements the plaintiff must show, by a preponderance of the evidence: (1) the standard of care applicable; (2) that the defendant breached the standard of care; and (3) that there was a causal connection between the breach and resulting injury. See Djorghi v. Glass, 23 So.3d 996 (La. Ct. App. 2009).    

    Leblanc’s family argued the District Court erred in finding that Dr. Lewis did not diagnose Ms. LeBlanc with sepsis upon hospital admission, even though his treatment plan was to treat sepsis with antibiotics and monitor.  The Third Circuit rejected the plaintiffs’ position that Dr. Lewis diagnosed Ms. LeBlanc with sepsis because of the nature of the differential diagnosis that Dr. Lewis conducted. 

    A differential diagnosis is only a list of potential disorders that could be the cause of presenting symptoms and considers medical and family history. A differential diagnosis is used to help diagnose physical or mental health disorders that cause similar symptoms. Thus, a differential diagnosis (such as sepsis in this case) that has been ruled out does not establish a medical diagnosis for which a standard of care follows. Accordingly, the Third Circuit agreed with the District Court that Dr. Lewis did not breach the standard of care by failing to treat a condition that was merely one of several possible diagnoses.   

    Justice Cook dissented, stating that the majority mischaracterized the issue. Instead, Justice Cook argued that there were genuine issues of material fact left unresolved. Justice Cook pointed to the nature of sepsis and that Ms. LeBlanc showed all but one criterion that is present when classifying someone with sepsis. Justice Cook looked at the evidence to point out that even though Dr. Lewis said he saw no symptoms that Ms. LeBlanc had sepsis, his testimony is fundamentally at odds with Ms. LeBlanc’s own medical record and the Leblancs’ expert testimony.  

    The dissent also stressed that Dr. Lewis knew that Ms. LeBlanc had an infection, had written a treatment plan that included administering antibiotics, and then did everything in that treatment plan except for prescribing antibiotics. It was the inclusion of administering antibiotics as part of the treatment plan and that Ms. LeBlanc demonstrated most signs of sepsis that—with plaintiffs’ expert testimony—the dissent believed raised a genuine issue of material fact as to the proper standard of care.  

    While the dissent brought up significant facts for discussion, the Third Circuit opinion came to a different conclusion. Medical malpractice claims can be challenging and require an excellent attorney to clarify the applicable standard of care required for a claim to proceed.    

    Additional Sources: JACQUELINE BRENNER, ET AL. VS. DR. RONALD M. LEWIS, ET AL.  

    Written by Berniard Law Firm Blog Writer: Elisabeth Tidwell 

    Additional Berniard Law Firm Articles on Medical Malpractice: Louisiana Court Finds Medical Malpractice Allegations Broad Enough to Proceed

  • Understanding the Direct Action Statute and Insurance Disputes

    Louisiana has a Direct Action Statute that allows injured third parties to sue an insurance company directly when the insurance company’s insured causes an injury. For example, if you are involved an automobile accident where you are not at fault, you can sue the at-fault driver’s insurance company directly instead of suing the at-fault driver themselves. The Direct Action Statute is beneficial because it gives injured third parties access to the entity that will actually pay compensation for the injuries. It can be especially helpful where the insured fails to file a claim with their insurance company themselves. However, the injured third-party’s ability to sue the insurance company directly is limited by the insurance contract between the insurance company and the insured.

    Despite the fact that the insurance contract is between the insurance company and the insured, an injured third party must still comply with most of the terms of the contract. This overarching rule applies specifically to whether the policy covers the insured and whether the policy covers a particular event. The insurance company will ask: Did this person have coverage when this accident happened? and Does this policy cover this type of event? For example, in insurance contracts limited to specific times, the insurance company will not cover a claim that occurred outside the time frame of the contract, regardless of who brings the claim. In a related example, automobile coverage that is limited to only certain vehicles will cover only those vehicles, regardless of who brings the claim. That is, the injured third party can have no greater rights than the insured would have had if he or she brought the complain themselves.

    In a United States Fifth Circuit Court of Appeals case, the court determined that specific requirements of the contract also extend to injured third parties. That case involved a “claims-made-and-reported” policy. That type of policy not only requires that a claim arise within the policy period, but also that the insured (or another party under the Direct Action Statute) had to have reported the claim within the policy period. This type of notice requirement helps insurance companies avoid claims that are reported years after they happen; instead, this policy requires notice within a certain amount of time.

    The case in the Fifth Circuit involved a Lawyers Professional Liability Policy that covered Titan, L.L.C. (“Titan”) for a period of one year. The policy stated that it would cover damages and expenses resulting from “a claim that is both first made against [Titan] and reported in writing to [CNA] during the policy period.” The policy requires that Titan must “immediately give written notice to [CNA] during the policy period . . . of any claim made against [Titan].”

    A lawsuit was filed against Titan while Titan was issuing title insurance policies on behalf of First American. The claim was filed within the policy period, but it was not reported within the policy period. Since Titan was acting on behalf of First American, First American was also injured by Titan’s actions. In order to avoid some liability, First American notified the insurance company (CNA) of the suit, but it was about six months after Titan’s policy had expired.

    The court determined that since neither Titan nor First American gave “written notice . . . within the policy period” as the policy required, then First American did not have a claim, regardless of the Direct Action Statute in Louisiana. Essentially, the court determined that the reporting requirement that Titan was subjected to also applied to First American, who was not a party to the insurance contract. Although First American may have been unaware of the terms of the contract, the court determined that to rule otherwise would give First American broader powers against the insurance company than Titan would have had.

    As someone that might be injured by an insured, it is important to make yourself aware of potential pitfalls like these in the insurance policy. Reporting claims right away can help avoid this type of situation. Navigating insurance contracts and insurance claims can be tricky. Contact The Berniard Law Firm at 1-855-550-5000, and we would be happy to help you with your legal questions and concerns.