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Category: Negligence Claims

  • Coroner Not Liable for Burial of Foster Child’s Remains

    A recent Louisiana Court of Appeal for the Fourth Circuit decision has highlighted the complex legal issues surrounding the handling of deceased individuals’ remains, particularly in the context of foster care. The case, involving the parents of a minor child who passed away while in foster care, underscores the challenges in establishing liability against a coroner for the disposition of remains.

    In this case, the parents of Eli Simmons, a minor child who died while in foster care, sued various parties, including the Orleans Parish Coroner, alleging negligence in the handling of their son’s remains. The Coroner filed a motion for summary judgment, which the trial court granted, dismissing the parents’ claims.

    The parents appealed, arguing that the trial court erred in its decision. However, the Court of Appeal upheld the summary judgment, finding that the parents failed to provide sufficient evidence to support their negligence claims against the Coroner.

    Key Points of the Ruling:

    • Burden of Proof: The Court emphasized that in a summary judgment motion, the burden of proof initially rests with the mover (the party requesting the summary judgment). However, once the mover establishes that there’s no genuine issue of material fact, the burden shifts to the opposing party to present evidence demonstrating a factual dispute that warrants a trial.
    • Negligent Infliction of Emotional Distress (NIED): The parents’ primary claim was for NIED, alleging that the Coroner’s actions caused them emotional distress. The court noted that to succeed in an NIED claim, the plaintiff must prove the defendant violated a legal duty and engaged in outrageous conduct.
    • Coroner’s Duties and Immunities: The court highlighted specific Louisiana laws outlining the Coroner’s duties and immunities. Louisiana law grants coroners immunity for discretionary acts within their lawful powers and duties. Additionally, no action can be taken against a cemetery authority (which includes the Coroner’s office in this context) for the remains left in its possession for over 60 days unless a written contract exists for their care.
    • Lack of Evidence: The court found that the parents failed to provide sufficient evidence to demonstrate a genuine issue of material fact regarding the Coroner’s alleged negligence or outrageous conduct.

    Coroners in Louisiana enjoy a degree of immunity that allows them to perform their duties without the constant threat of litigation. La. R.S. 13:5713. The immunity, however, isn’t absolute. It doesn’t protect them from claims arising from actions that are:

    • Outside the scope of their lawful powers and duties
    • Criminal, fraudulent, malicious, intentional, or grossly negligent

    In the Simmons case, the court found the Coroner’s actions fell within the scope of their lawful duties and were not unreasonable or outrageous, thus entitling them to immunity.

    This case highlights the complexities surrounding the handling of deceased individuals’ remains, particularly in cases involving foster children. While the parents’ grief is understandable, the court’s decision underscores the legal framework protecting coroners from liability in certain situations.

    The ruling also emphasizes the importance of understanding the burden of proof in summary judgment motions. If you are involved in a legal dispute, it’s crucial to consult with an experienced attorney to ensure your rights are protected and that you present sufficient evidence to support your claims.

    Additional Sources: PATRICK SIMMONS, SR., ET. AL VERSUS THE STATE OF LOUISIANA, ET AL

    Written by Berniard Law Firm

    Additional Berniard Law Firm Blog Articles on Coroners  and Statutory Immunity: Coroner’s Outrageous Actions Result In Loss of Statutory Immunity in Louisiana Lawsuit and Understanding Statutory Employer Immunity in Workers’ Compensation Cases in Louisiana

  • A Car Crash, a Faulty Repair, and a Battle Over Damages

    Patricia Spann’s life took a dramatic turn when she lost control of her Chevrolet Cobalt, resulting in a severe accident that left her with multiple fractures and a lengthy hospital stay. She believed the cause of the accident was a faulty power steering system, recently replaced by Gerry Lane Chevrolet as part of a recall. Spann sued Gerry Lane, alleging negligence in the repair and the hiring and training of their mechanics.

    The legal journey was not a smooth one. Initially, the trial court dismissed Spann’s case, granting Gerry Lane’s motion for summary judgment due to a perceived lack of evidence. However, Spann fought back, securing a new trial based on additional evidence from her expert witness.

    This expert, a mechanical engineer, had conducted multiple inspections of Spann’s car, ultimately concluding that the power steering system failed due to improper installation. Gerry Lane challenged the admissibility of this expert’s testimony, arguing it lacked scientific basis and that some inspections violated a court order. However, the court allowed the testimony, stating that challenges to the expert’s conclusions were about the weight of the evidence, not its admissibility. The court also determined that while the inspections without the defendants present were “troubling,” there was no evidence of intentional wrongdoing.

    At trial, a jury found Gerry Lane partially at fault for the accident and awarded Spann damages for medical expenses and lost wages. However, they did not award any damages for pain and suffering, a decision that Spann challenged. The trial court agreed with Spann, finding the jury’s verdict inconsistent. It granted a Judgment Notwithstanding the Verdict (JNOV), significantly increasing the damages to include a substantial amount for pain and suffering. (see La. C.C.P. art. 1811).

    Gerry Lane appealed, arguing several points, including the admissibility of the expert’s testimony, the evidence from the inspections, the granting of a new trial, and the large increase in damages awarded by the JNOV.

    The appeals court carefully reviewed the evidence and legal arguments. It upheld the trial court’s decisions regarding the expert testimony, the evidence from the inspections, and the new trial. However, while it agreed that the jury’s verdict was inconsistent and a JNOV was warranted, it found the trial court’s increase in damages to be excessive. The appeals court reduced the additional award for pain and suffering, striking a balance between recognizing Spann’s injuries and respecting the jury’s initial findings.

    This case underscores several important legal concepts. It highlights the critical role of expert witnesses in complex cases, particularly when technical or scientific issues are involved. It also emphasizes the importance of adhering to court orders and the potential consequences of violating them, even if unintentional.

    Furthermore, the case demonstrates the power of a JNOV to correct an inconsistent or unjust jury verdict. However, it also shows that even when a JNOV is granted, the court’s discretion in awarding damages is not unlimited and must be based on a reasonable assessment of the evidence.

    Spann v. Gerry Lane serves as a reminder that the legal process can be long and complex, with multiple layers of review and potential for appeals. It underscores the importance of seeking experienced legal counsel to navigate these complexities and ensure that justice is served.

    Additional Sources:PATRICIA SPANN VERSUS GERRY LANE ENTERPRISES, INC. D/B/A GERRY LANE CHEVROLET, ABC AND XYZ

    Written by Berniard Law Firm 

    Other Berniard Law Firm Articles on Increase of Jury Awards: How can an Appeal Affect a Jury’s Award for Mental and Physical Pain and Suffering?  and Allocating Damages in Wrongful Death Cases: Navigating the High Standard of JNOV Motion

  • When a Slip and Fall Isn’t Just an Accident: Understanding Merchant Liability

    We’ve all heard the phrase “slip and fall,” often in a comedic context. However, slip-and-fall accidents can result in severe injuries and legal battles. The recent case of Foto v. Rouse’s Enterprises, LLC, highlights the complexities of such cases and what it takes to prove a merchant’s liability.

    In 2013, Daisy Foto was shopping at a Rouse’s store in Louisiana. She slipped on a clear liquid on the floor, fell, and sustained injuries. Foto sued Rouse’s, claiming they were responsible for her injuries because they either created the hazardous condition, knew about it, or should have known about it.

    Rouse’s argued they had no liability because Foto couldn’t prove they created the spill, knew about it beforehand, or that it had been there long enough for them to reasonably discover and clean it up. They presented evidence of a store inspection conducted earlier that morning, showing no hazards were noted.

    Foto countered, arguing that the inspection was inadequate and that the spill had likely been there for some time, given that she had been in the aisle for about ten minutes and didn’t see anyone else. She argued this was enough to establish that Rouse’s had “constructive notice” of the hazard—meaning they should have known about it.

    The trial court initially sided with Rouse’s, granting them summary judgment and dismissing Foto’s case. However, an appeals court reversed that decision. The appeals court determined that Foto had presented enough evidence to create a genuine question about how long the spill had been on the floor. The specific evidence the appeals court pointed to was the following;

    1. The liquid was present on Aisle 12 before Foto fell.
    2. Foto was on the aisle for about 10 minutes before falling, and no one else was there.
    3. The liquid wasn’t near similar products, suggesting it didn’t spill recently.

    Because Foto presented that evidence in her opposition to Rouses’ motion, the appeals court felt a jury should decide whether Rouse had constructive notice of the hazard and was liable for Foto’s injuries.

    In slip and fall cases, the burden is on the injured party to prove the merchant was negligent. This usually means showing the merchant created the hazard, knew about it, or should have known about it. Even if a merchant didn’t directly create a hazard or know about it, they can still be liable if it existed for a long enough time that they should have discovered and addressed it. The outcome of these cases often hinges on evidence about how long the hazard existed, any witnesses, and the store’s policies and procedures for inspections and maintenance.

    Slip and fall cases can be complex. If you’ve been injured in a slip and fall accident, it’s essential to consult with an experienced personal injury attorney to understand your rights and options.

    Additional Sources: Foto v. Rouse’s Enterprises, LLC

    Written by Berniard Law Firm

    Additional Berniard Law Firm Articles on Injury Premise Liablity: Construction Worker’s Electrocuted Injury Leads to Dispute Among Defendants Over Liability

  • Court of Appeal Increases Monetary Damages Award Following Workplace Injury in Monroe Beverage Facility

    Injuries that occur while an individual is working can devastate the injured party’s life in several ways. Not only does the injured party likely earn less money due to the injury, but other damages, such as medical expenses and loss of enjoyment of life, may also result.

    James Thomas was a forklift operator for Marsala Beverage Company (“Marsala”) in Monroe, Louisiana. In addition to operating forklifts, Thomas routinely moved cases of drinks by hand and performed janitorial duties around the facility. On one occasion, when Thomas was operating a forklift to unload pallets of drinks, the forklift fell out of the back of a delivery truck, landing several feet below onto concrete.

    After the fall, Thomas visited Marsala’s company doctor, Dr. George Woods, complaining of pain in his back. Dr. Woods examined Thomas and ordered x-rays, which showed no evidence of fractures in Thomas’s spine. During the visit, Thomas explained to Dr. Woods that he wanted to return to work as soon as possible to receive bonus compensation based on the number of hours he worked that week. Dr. Woods cleared Thomas to return to work, which he did even though he continued to experience back pain.

    After several months, Thomas stopped working and filed a lawsuit against Louisiana United Businesses Association Casualty Insurance Company (“LUBA”). Marsala’s insurance carrier. In the petition, Thomas sought damages for physical and mental suffering, medical expenses, inability to earn past and future wages, disability, and loss of consortium.

    At trial, the jury awarded Thomas $40,000 for general damages, $34,977 for inability to obtain past wages, and $40,000 for previous medical expenses. It also awarded Thomas’s wife $10,000 for loss of consortium. Subsequently, the trial judge decreased Thomas’s total award to approximately $50,000 based on Thomas’s failure to mitigate damages.

    Thomas appealed to Louisiana’s Second Circuit Court of Appeal. The first issue on appeal was whether the $40,000 award for general damages was, as Thomas argued, abusively low. The purpose of general damages is to compensate an injured party for pain and suffering that cannot be precisely calculated. Duncan v. Kansas City Southern Railway Company, 773 So.2d 670 (La. 2000). There is no definitive way to calculate general damages, Terry v. Simmons 215 So.3d 410 (La. Ct. App. 2017), but a jury should consider the severity and duration of pain and suffering that the injury caused. LeBlanc v. Stevenson, 770 So.2d 766 (La. 2000). The Court of Appeal affirmed the jury’s award of $40,000 in general damages based on the fact that the jury based the amount on evidence that the duration and the severity of Thomas’s injury were low.

    Additionally, much of the evidence revealed discrepancies in Thomas’s accident description. These discrepancies likely reduced Thomas’s credibility with the jury. The Court specifically noted that Thomas’s Facebook posts following the injury were inconsistent with the level of activity that he reported to doctors and that Thomas described the details of the accident differently to six different doctors he visited throughout treatment

    The second issue for the Court of Appeal was whether the jury’s decision to not award Thomas damages for future medical expenses was reasonable. Under Louisiana jurisprudence, a party must provide evidence of the need for future medical expenses through testimony from a medical expert. Terry v. Simmons 215 So.3d 410 (La. Ct. App. 2017). An appellate court must only determine if the jury’s award was reasonable. Menard v. Lafayette Ins. Co. 31 So.3d 996 (La. 2010).

    Here, the Court of Appeal noted that there was no objective medical evidence to show that Thomas continued to suffer pain from the accident. Additionally, several physicians opined that Thomas’s back pain was not caused by the injury but rather by aging. In light of this evidence and Thomas’s failure to show that he would incur expenses for medically necessary future treatment, the Court of Appeal held that the jury’s decision not to award damages for future medical expenses was reasonable.

    The third issue before the Court of Appeal was whether the jury’s award of $34,977 for lost wages was reasonable. A party looking to recover previously lost wages must prove the dollar amount lost and the duration of work missed due to the injury. Boyette v. USAA, 783 So.2d 1276 (La. 2001). The Court of Appeal noted that the jury miscalculated its award for lost wages because it based its figure on 12 months of missed work; Thomas, in fact, could not work for 16 months. Accordingly, given Thomas’s wages of $2,872.33 per month, the jury should have multiplied this figure by 16 months, resulting in a total award for lost wages of $45,957. 

    Next, the Court of Appeal examined the jury’s decision not to award Thomas damages for loss of future earnings. In Louisiana, the loss of future earnings is determined by the decrease in the injured party’s ability to work based on his experience level, type of work, and training. Young v. Marsh, 153 So.3d 1245 (La. Ct. App. 2014). The Court of Appeal affirmed the jury’s decision not to award damages for loss of future earnings based on the fact that Thomas was able to return to performing janitorial duties after the injury as well as Thomas’s failure to provide evidence of the amount of earnings he would expect to lose if he found only a light duty job.  

    The fifth issue for the Court of Appeal was whether Thomas failed to mitigate his damages. In Louisiana, an injured party must reduce damages using reasonable discretion, good faith, and fair dealing. Young v. Marsh (supra). The injured party must comply with whatever treatment is recommended by a healthcare professional reasonably expected to heal the injury. Flemings v. State, 19 So.3d 1220 (La. Ct. App. 2009). An injured party who unreasonably delays medical treatment, where that delay aggravates the injury, is considered to have failed to mitigate damages.

    The trial record indicated that Thomas did not complete all the physical therapy that was recommended and that he did not take all the medication that was prescribed by his doctors. However, the Court of Appeal determined that these failures were the fault of LUBA, not Thomas himself. Since the evidence showed that Thomas reasonably attempted to comply with the recommended medical treatment, the Court of Appeal held that Thomas adequately mitigated damages.

    The sixth issue before the Court of Appeal concerned the jury’s award of $10,000 to Mrs. Thomas for loss of consortium, which Thomas argued was abusively low. A spouse may recover monetary damages for loss of consortium when an injury to a spouse results in loss of companionship, impairment to sexual relations, decreased ability to perform material services, decreased financial support, loss of aid and assistance, and loss of fidelity. La. C.C. art. 2315(B).

    Noting that Thomas was able to help around the house after the injury by performing light duties and that Thomas suffered from high blood pressure and erectile dysfunction for several years before the injury, the Court concluded that the injury did not result in a substantial decrease in the quality of the Thomas’ marriage. Therefore, the $10,000 award for loss of consortium was reasonable and not abusively low. 

    The seventh and final issue for the Court of Appeal concerned the trial court’s prohibition against introducing evidence about the worker’s compensation benefits that Thomas had already received before the trial. The Court determined that since the ban on introducing previously received worker’s compensation benefits is absolute under Louisiana law, the trial court did not err in excluding that evidence from the trial. See La. C.E. art. 414.

    This case demonstrates the importance of retaining an experienced attorney in a workplace injury case. To cite one example, had the attorney representing Thomas failed to notice that the jury incorrectly calculated Thomas’s lost wages award and enumerated that error on appeal, Thomas’s overall recovery would have been reduced by almost $11,000.  

    Additional Sources: THOMAS v.  BOYD ET AL.

    Written by Berniard Law Firm

    Additional Berniard Law Firm Articles on Workers Compensation: Injured Worker Denied Appeal in the City of New Orleans

     

  • Injured Shreveport Worker’s Claim Saved from Dismissal on Summary Judgment in Case Involving an Allegedly Open and Obvious Hazard

    David Cox delivered four pallets of shirk-wrapped material for his employer, Southwestern Motor Transport, in June 2012. The delivery location was the Baker Distributing Company warehouse in Shreveport, Louisiana. Baker’s delivery dock did not have a dock plate. A dock plate is a metal bridge connecting a truck’s back to the loading dock. There is an empty space between the back of the truck and the loading dock without a dock plate. In addition, Cox found that the loading dock was cluttered with several objects. Due to this clutter, Cox could not use a forklift to unload the truck.

    Working alone, Cox managed to get two pallets off the truck with a pallet jack but then used a dolly for the last two pallets. While attempting to get the previous pallet off the truck, Cox’s foot became wedged between the dock and the truck, causing him to fall on his back. Cox filed a lawsuit as a result of being injured.

    In the lawsuit Cox alleged that this fall caused him to have permanent injuries that made him disabled. The injury resulted in Cox receiving worker’s compensation benefits. Cox filed a lawsuit against Baker, arguing that the lack of a working dock plate made the dock unreasonably dangerous, that the lack of a dock plate was not easily visible to parties making deliveries to the warehouse, and that Baker had a duty to provide a safe entrance for parties unloading at the dock.

    Baker filed a motion for summary judgment, arguing that Cox was aware of the lack of a dock plate; this made the hazard open and evident to Cox, thereby insulating Baker from liability for his injuries. The trial court, concluding that the lack of a dock plate was open and obvious to individuals using the loading dock, granted Baker’s motion. 

    A hazard is considered open and obvious when the danger is clear to all who may encounter the hazard. Generally, a defendant is not obligated to protect against an open and obvious risk. Hutchinson v. Knights of Columbus, 866 So.2d 235 (La. 2004). On appeal by Cox, the Second Circuit Court of Appeal for Louisiana acknowledged that the lack of a dock plate was evident to anyone attempting to unload items on the warehouse dock. However, in its view, the overall condition of the dock should also have been assessed when the trial court considered Baker’s motion for summary judgment.

    The Court of Appeal specifically mentioned that other relevant factors — such as the gap between the truck and the dock, the cluttered loading dock area, the inability of a forklift to maneuver the area, and the lack of assistance available to Cox — could have influenced one’s perception of the hazard. Because the trial court did not consider these additional factors, the Court of Appeal held that the decision to grant Baker’s summary judgment motion was improper. Therefore, the Court of Appeal reversed the trial court and remanded the case for reconsideration. 

    Louisiana law insulates premises owners from liability for injuries resulting from open and obvious hazards, showing that the owner of a building is not responsible for every misfortune that a visitor may encounter. Anyone who has suffered an injury on someone else’s property should seek an attorney experienced in premises liability to determine if the facts of the situation establish responsibility on the property owner’s part.

    Additional Sources:  COX v. BAKER DIST. CO., L.L.C.

    Written by Berniard Law Firm  

    Additional Berniard Law Firm Articles on Workers Compensation:  Is Your Employer Liable If You Fall In The Parking Lot?

  • When one employee attacks a supervisor, can a supervisor proceed with a lawsuit against the employer?

    Nurses fighting one another may sound like a scene from daytime television, but unfortunately, this also occurs in real time.  When one employee attacks a supervisor, can a supervisor proceed with a lawsuit against the employer?  A nursing home in Laplace, Louisiana, recently tried to be dismissed from a personal injury lawsuit regarding two of its employees, stating it could not be vicariously liable.   The Louisiana Fifth Circuit Court of Appeal judged this was a question for trial.   

    Two employees of Twin Oaks Nursing Home, Inc. (“Twin Oaks”) in the parish of St. John the Baptist were involved in an altercation in April 2012. A supervisor, Ms. Haynie, approached her employee, Ms. Alford, requesting that Ms. Alford report to her office. When Ms. Haynie turned to walk away, Ms. Alford struck her supervisor repeatedly in the head and neck from behind. Ms. Haynie sustained bruises, scratches, a black eye, and soft tissue damage.  Ms. Alford had numerous prior work violations and justified the attack by stating she wanted Twin Oaks to give her a reason to fire her.  

    Ms. Haynie filed a lawsuit against Ms. Alford and Twin Oaks in the Fortieth Judicial District Court Parish of St. John the Baptist. The District Court dismissed the lawsuit against Twin Oaks, stating that the nursing home could not be vicariously liable because Ms. Alford’s actions were not employment-rooted or incidental to employee performance.  

    The Louisiana Fifth Circuit Court of Appeal disagreed.  An employer may be held liable for an employee’s tortious act if the tortious act was primarily employment-rooted and incidental to the performance of the employee’s duties while occurring on the employer’s premises and during the hours of employment.  See LaBrane v. Lewis, 292 So.2d.216 (La. 1974).  An employer is not liable merely because an act happened on the employer’s premises during working hours. 

    Vicarious liability will be found only when the employee is acting within the scope and in furtherance of their employment duties.  See Baumeister v. Plunkett, 673 So.2d 994 (La. 1996).  However, the Fifth Circuit did note that not every factor above must be met, and each case’s particular set of facts should be carefully analyzed for employer liability.   

    The Fifth Circuit determined that Ms. Haynie presented enough material facts regarding employer liability that should be presented at a trial.  Thus, it was inappropriate for the District Court to dismiss Twin Oaks.  On the date of the altercation, Ms. Haynie was at the nursing home performing her duties.  Ms. Alford stated the attack was partly provoked by her assumption that she would soon be fired, which suggests it was employment-rooted.  Other facts indicated that the conflict between the two women was purely personal.   Either way, enough facts required a trial to determine whether liability for the injuries could be passed to Twin Oaks.   

    Vicarious liability can be tricky territory to tread without an excellent and skilled lawyer, no matter which side of the aisle you find yourself on. It is vital that anyone caught up in a dispute involving employer liability seek appropriate legal advice. 

    Additional Sources: Demetris Haynie and Curtis Young Sr. Versus Twin Oaks Nursing Home, Inc. and Annie Alford 

    Additional Berniard Law Firm Articles on Employer Vicarious Liability: Court of Appeals Examines the Scope of Employment Requirement for Vicarious Liability

  • New Orleans Police Officer’s Termination from Traffic Accident Confrontation Upheld

    To ensure public trust in law enforcement, local government officials have the power to regulate police officers’ conduct both on and off duty. There are certain lines that police officers should not cross, even in their private lives. The following case shows how the New Orleans Police Department (“NOPD”) can terminate the employment of a long-serving police officer for fighting after a traffic accident and reinforce the high standard they hold their employees to.

    Officer Tracy Fulton of the NOPD was waiting at a stop light in his personal vehicle when he was hit from behind by a driver under the alias in court as E.C.. Officer Fulton left his car and began yelling at E.C. and the occupants of his vehicle. When Officer Fulton attempted to open the door of E.C.’s vehicle, E.C. drove off and went to his home. Officer Fulton called the police to report a hit-and-run and followed E.C., who was returning home. Officer Fulton then confronted E.C. again, and the argument eventually became a fight between the two men. 

    After the two men exchanged blows, they retreated to their vehicles to grab weapons, and the fight ended. After the fight, E.C. had a broken nose, a dislocated jaw, a concussion, and concussion-related symptoms. After an NOPD investigation, Officer Fulton was charged with second-degree battery and was also investigated and eventually fired. Officer Fulton was found not guilty of the battery charge at trial, but the termination was never reversed. Officer Fulton then appealed his termination to the New Orleans Civil Service Commission (“the Commission”).

    According to the Louisiana Constitution, the NOPD can discipline an employee for sufficient cause. La. Const. art. X, § 8(A). This termination stipulates that it must have a cause or a legitimate reason for the termination. La. Const. Art. X, § 12.  The standard for legal cause is whenever the employee does something that hurts the ability of the employee to effectively engage in public service. See Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La. Ct. App. 1990). Finally, the law in Louisiana allows disciplinary action even if a criminal case based on the same events is not successful. See Bailey v. Dep’t of Pub. Safety & Corr., 951 So. 2d 234, 240 (La. Ct. App. 2006).

    On appeal, the Louisiana Fourth Circuit Court of Appeal upheld the Commission’s decision to terminate Officer Fulton’s employment. Officer Fulton attempted to explain his conduct as self-defense and argued that his actions were justified. This claim failed because the Commission determined that Officer Fulton was the aggressor. E.C. drove away after the initial confrontation, but the Fourth Circuit noted that E.C.’s behavior was not that of a driver committing a hit-and-run. E.C. stopped at a red light, which allowed Officer Fulton to gather E.C.’s vehicle information and license plate number.

    In fact, the Commission found that all of Officer Fulton’s actions after the accident were inappropriate, unnecessary, and threatening. Officer Fulton never withdrew and was continuously the threatening party; accordingly, he was not entitled to use self-defense. Instead, E.C.’s actions of engaging in a fight after being followed to his home were found to be justified. The Commission found that the evidence was overwhelming that Officer Fulton’s aggressive nature in this confrontation hurt his ability with the NOPD to conduct efficient and effective operations.

    The purpose of a police department is to protect and serve the members of a community. Officers getting aggressive with community members after a simple traffic accident can undermine all of the good work a police department provides. The NOPD and the Commission were correct in removing officers who could not handle themselves professionally, even if they were not on the clock. 

    Additional Sources: Tracy Fulton versus Department of Police

    Written by Berniard Law Firm 

    Additional Berniard Law Firm Articles on Police Conduct: Eunice Police Chief Comments about Business Owners Found Defamatory

  • Louisiana State Employees’ Retirement System Loses Battle Over Disability Insurance With East Baton Rouge Women

    On-the-job injuries can sometimes result in employment termination when the injury prohibits you from completing your work. When this happens, state-funded disability retirement benefits can keep former employees financially afloat; however, eligibility for such benefits depends on how long you have worked for the employer and when you file your claim.

    Bessie Hall worked for the State of Louisiana in East Baton Rouge for over seventeen years.  On July 13, 2012,  Ms. Hall suffered an on-the-job injury at the Louisiana Department of Children and Family Services. Because her injury prevented her from working, her employer terminated her in September 2013. 

    Over two years later, Ms. Hall applied for disability retirement benefits through LASERS, the Louisiana State Employees’ Retirement System. LASERS, however, found Ms. Hall ineligible for these benefits.  Ms. Hall sued the Nineteenth Judicial District Court for the Parish of East Baton Rouge. The District Court held Ms. Hall was eligible for benefits, and LASERS appealed to the Louisiana First Circuit Court of Appeal.

    The crux of this case was whether the District Court applied proper statutory interpretation. According to La. C.C. Art 10, “[w]hen the language of the law is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” With this interpretive standard in mind, the Court of Appeal analyzed the construction and intent of the two statutes.

    This first statute, La. R.S.11:212, provides in section (A) that an employee injured in the workplace as “an active contributing member in active state service” and who “has at least ten years of creditable service” is entitled to disability benefits if he/she applies “while in service.” Section (C) provides for those who apply after termination, stating that such benefits are still available as long as “clear, competent, and convincing evidence [is shown] that the disability was incurred while the member was an active contributing member in active service.”

    The second statute, La. R.S.11:217 provides that an injured employer who has completed twenty years of service and is no longer in service is eligible for disability retirement benefits as long as his/her normal retirement benefits have not yet been vested. LASERS argued that these two statutes should be read together. In other words, an employer must first be eligible under La. R.S.11:217, and then La. R.S.11:212(C) provides an exception for applicants still in service. Because Ms. Hall had only worked 17, and not 20, years in state service, she should not have been eligible for disability retirement benefits.

    The Court of Appeal disagreed. It found that “laws should not be given an interpretation that makes any part superfluous or meaningless.” Accordingly, LASERS’ reading of La. R.S.11:217 would render La. R.S.11:212(A) is meaningless because this statute determines an employer’s baseline eligibility. Ms. Hall would thus not be eligible under La. R.S.11:212(A) because she did not apply while in service.

    However, La. R.S.11:212(C) provides an exception, stating that an employer may apply after receiving termination if he/she gives evidence of service during the injury. This applies to Ms. Hall, meaning that she is eligible for benefits, and no other statute needs analyzing. The Court of Appeal found La. R.S.11:217 is inapplicable to this case because it covered something completely different: retirement vesting for employees whose injuries may or may not have occurred on the job and who had achieved twenty years of service. Accordingly, the Court of Appeal dismissed LASERS’ claims.

    Workplace injuries can change lives; however, eligibility for retirement disability benefits can ease resulting financial difficulties. For Ms. Hall, standard statutory construction confirmed her benefit eligibility, while LASERS’ incorrect interpretation cost the state in appeal costs. A good lawyer can assist with accurate statutory interpretation and help secure essential disability benefits.   

    Additional Sources: HALL v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM

    Written by Berniard Law Firm Blog 

    Additional Berniard Law Firm Articles on Employment Benefits Disputes:  Lack of Substantial Evidence for Denial of Severance Pay Leads to Payment in Case Out of Baton Rouge

  • Are Mental Injuries Covered By Workers’ Compensation?

    Employees are often exposed to stressful situations while at work, whether from unhelpful coworkers or understaffing. Under what circumstances are resulting mental injuries entitled to workers’ compensation? 

    Diedre Emerson worked for Willis Knighton Medical Center as a certified nurse assistant on the cancer floor. One day, she arrived at work for her regular night shift. She found the prior shift had not completed a lot of their work, so she would have to do additional work. When she learned this, she became upset and mad. She said this was more of the same old behavior.

    While working that day, she indicated that she felt something pop in her head but admitted nothing physically happened to cause the pop. After completing her shift, she went to the emergency room. The medical records from the visit did not show she complained about weakness on one side of her body or other neurological symptoms. Her primary complaint was hyperventilation and nervousness. Emerson was subsequently late in calling Willis Knighton to tell them she would not be able to work her shift. She was fired. 

    About two months later, she went back to the emergency room, where she was found to have a blocked artery and stroke. Emerson filed a workers’ compensation claim for mental distress and stroke-like systems present at her first visit to the emergency room immediately after completing her shift. The workers’ compensation judge denied her claim, finding Emerson had not proven she had an injury under La. R.S. 23:1021(8) and had not connected any purported injuries to a work-related stress. 

    La. R.S. 23:1021(8)(a) defines which injuries an employee is entitled to compensation for depending on the relevant circumstances. As defined, injuries only relate to the “physical structure” of the body. La. R.S. 23:1021(8)(b) defines mental injuries caused by stress. Such injuries are only compensable if the injury resulted from extraordinary sudden or unexpected stress related to employment.

    Emerson admitted nothing physical had happened to cause her supposed “pop” in her head while on shift. She explicitly denied having bit hit or fallen. Therefore, she did not appear to have suffered a physical injury. With respect to a potential mental injury, Emerson said the occurrences the day at-issue at work were more of the “same old.” She had been anxious and stressed about work before that day. 

    Emerson also did not establish a mental injury by providing a diagnosis from a licensed psychologist or psychiatrist. Emerson also did not provide sufficient evidence of a heart-related conditions. Her medical records from the at-issue emergency room visit did not indicate she had been diagnoses with any heart-related condition. Furthermore, even if Emerson had suffered a stroke on the day she went to the emergency room immediately after her shift, the evidence suggested it was more likely caused by a preexisting condition than work stress. Therefore, the workers’ compensation judge did not err in denying Emerson’s claims. 

    A knowledgeable attorney can help you navigate the workers’ compensation system, which has specific requirements to establish your mental injury is entitled to compensation. 

    Additional Sources: Diedra Emerson v. Willis Knighton Medical Center

    Article Written By Berniard Law Firm

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  • When Doctors Disagree: What Happens When There Is Conflicting Testimony In A Workers’ Compensation Case?

    Medical testimony is an essential part of determining whether an injured worker has a valid claim. What happens if the doctors’ diagnoses conflict and they reach different conclusions about whether an injured worker can return to work?

    Maxine Hall worked as a housekeeper for Global Solution Services. While working for Global at a hotel, a door closed on her foot. She went to the emergency room, where a doctor told her she did not have any broken bones. However, another doctor subsequently diagnosed her with a fractured toe. 

    Despite receiving medical treatment, Hall continue to suffer from pain in her foot. Hall received workers’ compensation benefits, but the benefits terminated approximately two years after the accident occurred. She then filed a Disputed Claim for Compensation against Global and Illinois National Insurance Company, its insurer. Hall sought to get her benefits reinstated. The Workers’ Compensation Judge dismissed Hall’s claims. Hall filed an appeal. 

    When appellate courts review workers’ compensation cases, if there are two reasonable views of the evidence, then the trial court’s choice between them is not clearly wrong or erroneous. See Chaisson v. Louisiana Rock Monsters, LLC. Here, the appellate court reviewed the various testimony and evidence presented at trial to see whether the trial court erred in dismissing Hall’s workers’ compensation claims.

    Hall saw various doctors, who diagnoses her with a variety of issues and had varying views on whether, and to what extent, she could return to work. One doctor who testified at trial, an orthopedic surgeon, initially said Bostick could return to work to do sedentary work, but later stated Hall was unable to return to work. A vascular surgeon diagnosed Hall with Complex Regional Pain Syndrome. A few other doctors agreed with this diagnosis. The vascular surgeon referred Hall to see another doctor in order to receive a nerve block, which helped Hall. 

    However, Hall did not receive any additional nerve blocks. A neurologist disagreed Hall had Complex Regional Pain Syndrome and believed Hall’s remaining complaints were subjective. The neurologist testified from his perspective, Hall could return to work fully, but deferred to others to whether there were an orthopedic issues. 

    The Office of Workers’ Compensation appointed a doctor to complete an independent medical exam of Hall. That doctor found Hall was exaggerated her pain as he could distract her and change her pain levels. He also did not think Hall had Complex Regional Pain Syndrome. He believed Hall could return to work without any restrictions. 

    Under La. R.S. 23:1123, courts should give the conclusions from the independent medical exam significant want because they are from an objective third-party. Here, the independent medical examiner concluded Hall could return to work fully. Therefore, the appellate court held the trial court did not err in dismissing Hall’s Disputed Claim for Compensation based on the independent medical examiner’s conclusion Hall could return to work and conflicting other medical testimony. 

    If your workers’ compensation case includes conflicting medical testimony, a good attorney can advise you on the best strategy to prove your claim.

    Additional Sources: Maxine Hall v. Global Solution LLC and Illinois National Ins. Co.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Workers’ Compensation Claims: Prevailing Against All Odds: Triumphing in a Workers’ Compensation Claim