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Category: Negligence Claims

  • Who Is Responsible For Damages In Accident Involving Borrowed Car And Inadequate Maintenance?

    It is common to borrow a car from a family member or friend. If you are unfortunately involved in an accident while driving a borrowed car, who is liable for damages if the accident results from inadequate maintenance? 

    While Holly Fontenot was driving a car owned by Patricia Neil and her husband, the parents of Fontenot’s fiancé, she was involved in a single-car accident when she lost control and hit a utility pole. Fontenot had the Neils’ permission to drive their car. There were also two minors in the car with her. 

    Fontenot and the mother of the two minor children passengers filed a lawsuit against Safeway Insurance, who insured the Neils’ car. Fontenot claimed the accident occurred because of a lack of maintenance. She claimed the car went off the road because it had a broken tie road, which caused the car’s steering mechanism to fail. 

    Safeway moved for a directed verdict under La. C.C.P. art 1672(B), claiming Fontenot had not presented evidence sufficient to show she was entitled to any relief. The court granted Safeway’s motion and dismissed Fontenot’s claims. Fontenot appealed.

    The appellate court explained the trial court had granted Safeway’s motion for a directed verdict because Fontenot had not established what caused the car to go off the road and had not provided sufficient evidence there had been insufficient maintenance on the vehicle. Under King v. Louviere, the vehicle’s owner, not a driver who has been given permission to drive the car, is liable when an accident occurs because of a defect with the vehicle. 

    Fontenot testified she had been driving the Neils’ car with permission, within the speed limit, when she heard a pop and the car’s steering mechanism failed, which resulted in her losing control and hitting a utility pole. Fontenot could not provide specific details about the timeline of what happened after she heard the pop. One of the investigating police officers testified it appeared to him like the crash resulted from something in the front area of the car’s drive train. The police officer did not think the accident could have resulted from a tire blowout.

    Furthermore, there was no evidence Fontenot was speeding or otherwise driving erratically at the time of the accident. Based on this testimony and evidence, the appellate court held Fontenot had provided sufficient evidence to survive Safeway’s motion for a directed verdict. 

    Once Fontenot presented evidence that she had lost control of the car because of a broken tie rod, the burden shifted to the Neils to provide evidence the accident resulted from a defect it was not aware of and did not result from their improper maintenance of the vehicle. The only evidence they presented was speculated the tie rod might have broken when the car hit the utility pole or curb. The Neils also did not present evidence Fontenot had been given the right or obligation to maintain the vehicle. Therefore, the appellate court reversed the trial court’s dismissal of Fontenot’s claims. 

    If you have been involved in an accident while driving a borrowed car, a good attorney can advise you on who is liable and what evidence you need to present in support of your claim. 

    Additional Sources: Holly Fontenot et al. v. Safeway Ins. Co. of Louisiana

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Involuntary Dismissals: The Complexities of the Involuntary Dismissal of a Claim

  • Injured Worker Who Hid Injuries Still Entitled To Workers’ Compensation

    If you are injured on the job, it is best practice to inform your employer and supervisor about your injuries. They will likely inform you about possible workers’ compensation to which you might be entitled. Are you still eligible to receive workers’ compensation benefits if you tried to hide your injury from your employer?

    Gary Jeansonne worked as a maintenance worker at a youth center located in Bunkie, Louisiana. Over two months after Jeansonne stopped working at the center, he filed a claim for workers’ compensation, claiming he had hurt his back while working at the center. He claimed the accident had occurred while he was working in the kitchen. Jeansonne claimed to have called his supervisor the next morning to tell him he would not be able to come in to work due to his back, but he did not tell his supervisor his back issues were from an injury at work. 

    Jeansonne started receiving medical treatment for his back injuries. His medical records indicate he told his doctor the accident that hurt his back occurred at home. Jeansonne subsequently claimed the report was not accurate and he had just said the incident occurred at home because he wanted to be able to go back to work. 

    Ultimately, Jeansonne had to undergo back surgery. He used his personal medical insurance to pay for his medical expenses and took personal leave to recover. He and his wife testified the did not think he would be able to receive the back surgery if he filed a workers’ compensation claim. They thought it would be quicker to use their private insurance. 

    Jeansonne eventually received permission from his doctor to return to work. However, he subsequently claimed to have reinjured himself at work. The workers’ compensation judge found Jeansonne was entitled to workers’ compensation for his first incident at work, but noted Jeansonne was not a very credible witness. Jeansonne filed an appeal.

    An employee is entitled to receive workers’ compensation if he proves he was injured during the course of his employment. See La. R.S. 23:1031(A). The appellate court noted this case presented unusual circumstances because Jeansonne tried to conceal the fact he had been hurt at work from his supervisors, insurer, and healthcare provider.  Although Jeansonne had exhibited poor judgment in trying to hide his injuries, the appellate court found Jeansonne had provided sufficient evidence that the second injury had resulted from an on-the-job accident. 

    Additionally, testimony indicated Jeansonne wanted to return to work and had a genuine belief he could lose his job if it was known he had suffered an on-the-job injury. Based on the evidence presented, the appellate court found the Workers’ Compensation Judge had erred in finding there was insufficient proof Jeansonne had suffered a second compensable injury. The appellate court ruled Jeansonne was entitled to workers’ compensation benefits for both incidents. 

    Although Jeansonne ultimately was able to receive workers’ compensation benefits, the process was greatly complicated by the fact he was not transparent with his employer about his on-the-job injuries. If you have been injured on the job, being straightforward about your injuries can help expedite your receipt of workers’ compensation benefits. 

    Additional Sources: Gary Jeansonne v. Department of Public Safety and Corrections Youth Services et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Workers’ Compensation Claims: How To Determine If Someone Is Faking Symptoms In A Workers Compensation Case

  • Injured Work Release Inmate’s Sole Remedy Is Workers’ Compensation

    Even while an inmate, you are still entitled to damages if you are injured on the job. If you are injured while working in a release program, are you entitled to compensation through the workers’ compensation scheme? 

    Lindsey French was serving a sentence for drug and firearm charges at the detention center in Claiborne Parish, Louisiana. Inmates at the detention center could be released to work for the police as part of the highway maintenance crew. French volunteered to join the crew. While on the crew, French was responsible for operating a tractor.

    One day, the tractor French was using hit a tree stump. French was not wearing his seat belt. He fell through an opening in the tractor and fractured his pelvis.

    French filed a lawsuit against the police. He claimed the police were liable for not training inmates how to operate the tractors, not adequately supervising the inmates, not adequately inspecting the area where they were working, telling inmates it was more dangerous to wear a seatbelt, and not maintaining the tractor.

    The police filed a summary judgment motion claiming it was immune under La. R.S. 15:708, which governs prisoner workday release programs. The police alternatively argued French’s only remedy against them was workers’ compensation. French claimed he was not employed by the police and was more like a volunteer. The trial court granted the police’s summary judgment motion, explaining French’s sole remedy was workers’ compensation. French filed an appeal. 

    When courts determine if an employee-employer relationship exists, the main factors are the right of control and supervision. Prior cases have held work release inmates to be employees of the place where they work. See Reynolds v. Louisiana Plastic. 

    Here, the police could dismiss inmates such as French from working on the crew if they were unable to perform their job duties. For example, the police would sometimes dismiss workers who were found to not be able to operate the tractors. The police also had control over the inmates from the time they picked them up until the time they returned them to the detention center. They also supervised the inmates while they were working. The police provided the inmates with training on how to operate the tractors and provided the work location and equipment the inmates used. Therefore, the police controlled the inmate’s training and supervision and could dismiss inmates from working on the crew.

    The appellate court rejected French’s arguments he was a volunteer for the police because he was not expecting compensation. Here, French was being monetarily compensation for his service, even if the payment did not come directly from the police. Further, even if he had not been compensated for his services, that alone would not be determinative of whether he was an employee.

    Based on the evidence presented, there did not appear to be a disputed factual issue of whether French was employed by the police. Therefore, the appellate court held the trial court did not err in granting the police’s summary judgment motion because French’s sole remedy for his injuries was through the workers’ compensation system. 

    It can sometimes be complicated to determine if you are in an employee-employer relationship, such that you are entitled to workers’ compensation. A good attorney can advise you on relevant factors and how that affects your potential legal remedies. 

    Additional Sources: Lindsey French v Claiborne Parish Police Jury and Sheriff

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Inmate Release Programs: Inmate Injured on Work Release in Chopin Denied Damages from Sheriff and Department of Corrections

  • Presumption of Negligence in Rear-End Accidents Does Not Always Lead To Summary Judgment Victory

    Under Louisiana law, there is a presumption the driver of a car that rear-ends another car acted negligently. However, this presumption of negligence can be overcome in certain situations, such as if the driver of the vehicle that was rear-end shifted lanes soon before the accident.

    While Tammy Bloxham was stopped at a red light in her car, she was hit from behind by Andy Gibbs Jr. At the time of the accident, Gibbs was driving a tractor-trailer owned by 31 Energy. Bloxham filed a lawsuit against Gibs, 31 Energy, and 31 Energy’s insurer. Bloxham argued 31 Energy had been negligent in hiring Gibbs and not inspecting its vehicle’s brakes. The defendants filed a summary judgment motion, claiming Bloxham had not reported this claim in her pending bankruptcy. Bloxham also filed a summary judgment motion, claiming Gibbs was liable under La. R.S. 32:81 A and the presumed negligence of the driver of a following vehicle who hits the rear of another vehicle.

    The trial court granted Bloxham’s summary judgment motion given the presumption that a following driver who rear ends another vehicle is negligent. The court held this applied even if Bloxham had changed lanes immediately before the accident. The defendants filed an appeal.

    At the summary judgment stage, a court cannot make credibility determinations or decide between differing accounts of what transpired. Even if the rear-end presumption of negligence applies, a court must still determine if the driver in front contributed to the accident. See Matherne v. Lorraine.

    On appeal, the defendants argued the courts should have assessed comparative fault, even if there was a presumption of negligence because Gibbs had rear-ended Bloxham. Specifically, defendants argued Bloxham could have been partially at fault for having changed lanes just before the accident occurred. Defendants argued drivers who change lanes on a highway have a duty to determine whether they can do so without endangering oncoming traffic, so if Bloxham had changed lanes immediately before the accident, she could be partially at fault.

    The court agreed summary judgment is not appropriate in all cases involving a rear-end accident. Here, the deposition testimony from various witnesses presented conflicting accounts of what had transpired. For examples, Gibbs’ deposition indicated it had looked to him like Bloxham had tried to change lanes immediately prior to the incident. Bloxham argued Gibbs had admitted he was solely at fault for the accident as he testified he was not blaming anyone else for the accident. This led to a a factual issue about Bloxham’s conduct immediately before the accident and whether it made her partially at fault for the accident. Given the outstanding factual issues, the appellate court reversed the trial court’s grant of Bloxham’s summary judgment motion. 

    If you have been involved in a rear-end accident, a knowledgeable attorney can advise you on what evidence you should present given Louisiana’s presumption of negligence for the driver who rear-ended the other vehicle. As seen here, the mere fact one driver rear-ended another vehicle does not necessarily mean that driver is completely at-fault for the accident. 

    Additional Sources: Tammy Bloxham and Christophe Odgen v. HDI-Gerling America Ins. Co., et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Rear-End Accidents: If Your Car is Rear Ended in An Accident Who is Presumed to be at Fault in Louisiana?

  • Can an Independent Contractor collect Workers’ Compensation Benefits?

    The distinction between independent contractors and employees has always been something of a balancing test. This distinction becomes vital in workers’ compensation issues, where employees generally enjoy peace of mind with workers’ compensation in the event of an injury, whereas independent contractors usually do not. But are there some cases where an independent contractor can collect workers’ compensation benefits? The answer to this question is illustrated in the following appeal from the New Orleans Office of Workers’ Compensation.

    Federico Espinoza Martinez and four others were hired by Jaroslov Rames to lower a washer/dryer combination unit to the first floor of an apartment building. During the lowering of the unit, Mr. Martinez received a laceration on his hand when one of the ropes used snapped. Despite a broken rope and cut hand, Mr. Martinez and the others completed the job. Afterward, Mr. Rames drove Mr. Martinez to the emergency room, paying five hundred dollars to ensure proper treatment was administered. Mr. Martinez later attempted to collect his pay from Mr. Rames. Mr. Rames informed him that he had deducted the five-hundred-dollar emergency room fee from Mr. Martinez’s check and planned to deduct the remainder of the hospital fee from his future earnings.

    Mr. Martinez filed a claim for workers’ compensation benefits he believed Mr. Rames owed him. The issue was heard by the Office of Workers’ Compensation (henceforth “OWC”), and it was found that Mr. Martinez was not an employe of Mr. Rames, but rather an independent contractor. Benefits were denied based on this finding. Mr. Martinez appealed, maintaining that the OWC failed to apply the manual labor exception outlined in La. R.S. 23:1021(7). The OWC found the manual labor exception did not apply to the set of facts, denying benefits again for Mr. Martinez.

    La. R.S. 23:1021(7) states, “An independent contractor is covered by the provisions of workers’ compensation when a substantial part of their work time is spent performing manual labor.” In Lushute v. Diesi, the Louisiana Supreme Court held that “an independent contractor must show that a substantial part of their work was spent doing manual labor to carry out the terms of their contract and that the work was vital to the trade, business, or occupation of the principal to the contract.”In determining what constitutes manual labor, the courts have consistently held it to be work where the work’s physicality outweighs the work’s mental element. “Whether an activity is part of the principal’s trade, business, or occupation must be determined on the facts of each unique case.”

    Mr. Martinez’s work for Mr. Rames consisted of carpentry and maintenance. A reasonable person would find these types of labor to be more physical than mental. The court then turned to whether the work being performed at the time was part of Mr. Rames’ trade, business, or occupation. Mr. Rames owned and managed several apartments which he had available to rent through the popular lodging website Air BNB. Mr. Martinez had worked for Mr. Rames at his apartments several times. On the day of the incident, Mr. Martinez was moving a washer/dryer unit at one of Mr. Rames’ apartments with the purpose of making room to open up a wall to increase space for a bigger unit.

    The court reasoned that accommodation of renters’ needs via maintenance and improvements is a necessary task in owning and operating a rental business. From these findings, the court held that the OWC should have applied the manual labor exception to Mr. Martinez.

    When an employee or independent contractor sustains an injury while on the job, determining eligibility for compensation can be very confusing, factors like circumstances surrounding the incident, laws of the specific jurisdiction, nature of the employee’s work, and the type of business the employer runs can all play a part. Those navigating this complex process should seek the guidance and expertise of an experienced attorney.

    Additional Sources orkers’O ESPINOZA MARTINEZ v. JAROSLAV RAMES / WORLD OF TASTE, LLC

    Article WriWorkers’ T.J. Reinhardt

    Additional Berniard Law Firm Article on Workers’ CompensationWorkers’ An Employee Entitled To Select A Physician For A Workers’ Compensation Claim?

  • No Hostile Work Environment Where Employer Took Remedial Actions

    No one should have to deal with sexual harassment in the workplace. If you are dealing with sexual harassment at work and you report it to your employer, you hope they will act on your report. How do actions taken by your employer affect your ability to recover for sexual harassment in court?

    Shelita Tucker worked for UPS in Port Allen, Louisiana for three years. One of the subordinates she managed was Larry McCaleb. Tucker claimed McCaleb sexually harassed her for about two years. His alleged sexual harassment involved inappropriate touching. Soon after the incident with the inappropriate touching, Tucker reported what had happened to the business manager. McCaleb was taken out of service while the investigation was ongoing. The next day, Tucker filed a complaint with the UPS Compliance Line. She subsequently also filed a report with the local police department. 

    The next week, Tucker was on a scheduled vacation. While she as on vacation, UPS investigated the matter and suspended McCaleb. When McCaleb was allowed to return to work, UPS took corrective action including meeting with McCaleb, counseling him about proper behavior and relevant policies, and prohibiting him from going near Tucker. McCaleb was also convicted of battery and sentenced to 90-days in jail. Tucker reported McCaleb never talked to or touched her again. The one-time McCaleb entered her work area, she reported it and UPS addressed it. Tucker claimed she still felt unsafe at work because McCaleb also worked at the facility. However, she said she was still about to perform her job. She claimed McCaleb would stare at her as she walked in or out of work. 

    Tucker eventually quit. She received a right-to-sue letter after filing an EEOC charge and filed a lawsuit against UPS, claiming a hostile work environment from the alleged sexual harassment. UPS filed a summary judgment motion, which the district court granted. Tucker appealed. 

    Tucker claimed McCaleb had harassed her for approximately two years. However, Tucker was only entitled to recover for acts that occurred within 300 days prior to when she filed her EEOC charge, unless there were continuing violations. However, the district court had held the incidents prior to UPS taking action were not actionable. Tucker agreed. Although Tucker claimed the court should consider the subsequent incidents as part of the full scope of McCaleb’s behavior, she did not provide any support for that claim. Thus, the appellate court considered only two incidents – the inappropriate touching incident and an incident where McCaleb was waiting in the dark for Tucker. 

    In order for there to be an abusive working environment, the harassment must be severe or pervasive. See Aryain v. Wal-Mart Stores Tex. LP. Here, after Tucker reported the sexual harassment, UPS immediately took steps to protect Tucker while the investigation was underway. After the investigation, UPS moved Tucker to a separate work area and forbade McCaleb from going in there. UPS also provided counseling to McCaleb about professionalism and sexual harassment, and provided Tucker with an escort to help her feel safer. Tucker also admitted the sexual harassment had stopped. The appellate court agreed UPS took sufficient remedial action to avoid liability under Title VII and affirmed the district court’s dismissal of Tucker’s claims. 

    If you are dealing with sexual harassment at work, the best case scenario is your employer takes appropriate steps to protect you and stop the harassment. However, if not, a good attorney can advise you on possible legal remedies. 

    Additional Sources: Shelita Tucker v. United Parcel Service, Inc.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Sexual Harassment Claims: Boutte IHOP Successfully Defeats Sexual Harassment and Constructive Discharge Claims

  • Failure To Investigate Does Not Suspend Time Requirement For Filing Wrongful Death Lawsuit

    We have all heard the saying “time is of the essence.” This is especially true when you are filing a lawsuit. If you do not comply with the statutory requirements for how long you have to file a lawsuit, a court will be unable to hear your claim. Although certain exceptions apply that extend your timeline for filing a lawsuit, there are strict evidentiary requirements for these exceptions to apply. 

    Julius Lennie worked for a Company that cleaned pipes in oilfields. The cleaning process allegedly involved the emission of naturally occurring radioactive material. About fifteen years after retiring, Lennie was diagnosed with lung cancer and died shortly thereafter. Four years later, his surviving spouse and children filed a lawsuit against various companies for whom Lennie had cleaned their oilfield pipes. They claimed Lennie had been exposed to harmful levels of radiation, causing his lung cancer and death. They claimed the companies had been aware of the dangers of the radioactive materials but did not warn Lennie about the dangerous or take adequate precautions. The Lennies claimed they were not aware about the radiation exposure until less than a year before they filed their lawsuit, when one of Lennie’s children read about it in the newspaper and they met with an attorney. The Lennies claimed the companies had actively concealed the existence of the naturally occurring radioactive materials. 

    Because the Lennies filed their lawsuit over a year after Lennie’s death, the defendants filed peremptory exceptions of prescription, claiming they were required to have filed their lawsuit within one year of his death, pursuant to La. C.C. art. 2315.1. The Lennies claimed they did not have any actual or constructive knowledge of their claims until less than a year before they filed the lawsuit, because the companies had concealed it. The trial court granted the defendants’ peremptory exceptions of prescription, finding there was not sufficient evidence the defendants had concealed the existence of the naturally occurring radioactive material such that the Lennies did not have knowledge of their possible claims. The Lennies appealed.

    On appeal, the court considered whether the Lennies’ claim they did not have knowledge about the potential cause of his death until three years after Lennie’s death – and within one year of when they filed the lawsuit – was reasonable. In analyzing whether exceptions to prescription apply, courts consider what a plaintiff knew or should have known about the potential causes of action. See Wells v. Zadeck. The appellate court rejected the argument that the existence of any suggestive information on the internet was sufficient to establish constructive knowledge. 

    However, the Lennies had not taken other reasonable steps such as talking with Lennie’s doctors about the potential causes of the cancer that resulted in his death. Therefore, the appellate court agreed the one-year period for filing the lawsuit began to run at the time of Lennie’s death because there was not sufficient proof the Lennie’s lack of knowledge was the result of anything besides their failure to investigate. 

    This case illustrates the importance of being aware of, and complying with, applicable timelines for filing lawsuits. A good lawyer can advise you on the timing requirements and if any exceptions might apply. 

    Additional Sources: Patricia Lennie et al. v. Exxon Mobile Corp., et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Prescription: Trial Court Decision Overturned Due to Prescription Period Expiring

  • Louisiana Jury Did Not Err In Apportioning Fault For Car Crash

    In the heart of Lafayette Parish, Louisiana, tragedy struck on Interstate 10 as a routine drive turned fatal. Arthur Huguley, behind the wheel of a tractor-trailer for AAA Cooper Transportation, found himself in a situation that would forever alter the lives of those involved. A blown-out tire, a series of events, and a wrongful death lawsuit brought forth by Curley Mouton’s surviving family members set the stage for a courtroom drama that unfolded with unexpected twists. In the end, a jury assigned fault, but the defendants, Huguley, AAA Cooper, and their insurer, were not ready to accept the verdict without a fight. This article explores the intricacies of their appeal, shedding light on the compelling arguments presented and the complexities of apportioning fault in a tragic accident.

    Arthur Huguley was driving a tractor-trailer in Lafayette Parish, Louisiana, on Interstate 10 while working for AAA Cooper Transportation (“AAA Cooper”).  Huguley heard a bang and worried he might have blown out a tire. While performing a maneuver to see if he had blown out a tire, the tire that had blown out came apart and flew into the air. Curley Mouton was driving in a truck behind Huguley when debris from the tire started flying through the air. The debris hit Mouton’s truck, causing him to hit a guardrail, flip over, and crash. Mouton died in the crash. 

    Mouton’s surviving spouse and son filed a wrongful death lawsuit against Huguley, AAA Cooper, and their insurer. A jury found in favor of Mouton’s family and assigned 10% fault to Huguley and 90% to AAA Cooper for putting a defective tire on its truck. The defendants appealed, claiming the jury had erred in its ruling.

    On appeal, the defendants raised multiple issues about the trial court’s ruling. The defendants first argued that the jury erred in not assigning Mouton any fault and assigning 10% of fault to Huguley. An appellate court must defer to the jury’s division of fault. See Dupree v. City of New Orleans. If there are two reasonable ways to view the evidence, then the jury’s allocation cannot be manifestly erroneous, so the appellate court cannot overturn the division of fault. See Stobart v. State, Dep’t of Transp. and Dev.

    The appellate court reviewed the evidence related to the jury’s decision to allocate Mouton no fault for the accident. At trial, the driver who had been driving behind both Huguley and Mouton when the accident occurred testified about the events that gave rise to the car accident. The driver testified in his view, Mouton had not done anything wrong. Another witness to the accident also testified she did not think Mouton had done anything improper. The witnesses thought Mouton was safely and carefully operating his vehicle at the time of the accident. Therefore, the appellate court held the jury did not err in allocating no fault to Mouton.

    The appellate court next considered whether the jury had erred in assigning 10% fault to Huguley. At trial, Huguley had testified about why he had performed the maneuver to see if one of his tires had blown out instead of pulling over and inspecting the tires.  He also testified he had gone an additional two miles after hearing the loud bang before checking if one of the tires on the truck had blown out. The evidence also showed the at-issue tire was at least six years old and had been retreaded and plugged multiple times. AAA Cooper was aware of the tire’s history but decided to continue using it instead of replacing it. Therefore, the appellate court held that the jury did not err in assigning 10% of the fault to Huguley and the remaining 90% to AAA Cooper. 

    On appeal, the defendants also argued the trial court erred by allowing the Plaintiffs’ expert, Michael Gillen, to testify about accident reconstruction. An appellate court can only overturn a trial court’s decision on whether to qualify an expert witness if the trial court abused its discretion. See State v. Castleberry. 

    The appellate court reviewed the record about Gillen’s training and experience. The evidence showed Gillen had extensive training and experience. He had also been qualified as an expert in multiple prior lawsuits. A prior case before the Louisiana Supreme Court, Cheairs v. State ex rel. DOTD noted Gillen’s extensive experience. Based on the evidence of Gillen’s experience and training, the appellate court held the trial court had not erred in permitting Gillen to testify as an expert witness. 

    Finally, the defendants argued plaintiffs did not plead a valid cause of action against AAA Cooper, who owned the tractor-trailer Huguley was driving at the time of the accident. The appellate court noted that the plaintiffs’ petition claimed that AAA Cooper did not properly maintain their tractor-trailer and did not adhere to reasonable safety standards. The appellate court found those allegations set forth the plaintiffs’ theory that AAA Cooper was responsible for the failed tire. Additionally, the plaintiffs noted the defendants did not object to including a blank for AAA’s fault at trial on the form provided to the jury. 

    Under La. C.C. art. 1793(c), if a party does not object to a jury instruction at trial, it waives its right to object to the charges at trial. Further, AAA Cooper had stipulated Huguley was in the course and scope of his employment with them when the accident occurred. As a result, because of vicarious liability, AAA Cooper would be responsible for the entire judgment amount the jury allocated to it and Huguley. Therefore, the appellate court found any error in how the jury allocated fault between AAA Cooper and Huguley would have been harmless because it would not have affected the amount AAA Cooper owed.

    The journey through the legal labyrinth, as seen in the appellate battle following Curley Mouton’s tragic accident, highlights the multifaceted nature of seeking justice. While the appellate court ultimately upheld the jury’s allocation of fault, the defendants’ efforts to challenge the judgment underscore the importance of legal expertise in navigating the intricate world of appeals. This case is a stark reminder that the pursuit of justice is not merely about the trial but extends to the post-trial battleground, where skilled attorneys play a pivotal role in defending or contesting verdicts. Mouton’s family prevailed in their pursuit of accountability, but their struggle on appeal illuminates the challenging terrain that litigants must traverse to secure justice in the face of adversity.

    Additional Sources: Linda and Cory Mouton v. AAA Cooper Transportation, et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Apportioning Fault: Iberville Parish Car Crash Shows Court’s Role in Apportioning Fault

  • Injured Employee Entitled To Select One Physician Of Choice in Workers’ Compensation Claims

    If you are injured on the job, one of your primary concerns is likely finding competent medical care. Under the Louisiana Workers’ Compensation Act, injured workers can select one physician of any specialty without their employer’s approval. What happens if your employer refuses to pay for your selected physician? 

    Marvin Ray Scott brought a workers’ compensation claim against his employer, Packaging Corporation of America (“PCA.”) Scott claimed he had lost his hearing because of his work at the Boise Paper Mill in DeRidder, Louisiana. Scott then filed a motion to have an expedited hearing under La. R.S. 23:1121. Scott claimed PCA had not authorized his initial visit to his selected physician. PCA responded, claiming Scott had improperly used summary proceedings because he was not just trying to get approval for his selected physician, but he was also seeking attorney’s fees and penalties. At the hearing, the workers’ compensation judge ruled in favor of Scott and ordered PCA to pay Scott’s relevant medical bills and pay separate penalties and attorney’s fees, totaling $7,000. PCA filed an appeal.

    Louisiana Workers’ Compensation Act sets forth rights and remedies for injured workers. Under La. R.S. 23:1121, an employee is permitted to select one physician of any specialty without their employer’s approval. If the employer denies that, the employee is entitled to an expedited proceeding. Under La. R.S. 23:1201(F), the employer can also be required to pay penalties and attorneys’ fees if it does not comply with its statutory obligations to an injured worker. 

    PCA raised numerous arguments on the appeal of why the workers’ compensation judge had erred in ruling in favor of Scott. Although PCA claimed Scott had waited too long to bring his workers’ compensation claim, the court found no evidence Scott’s hearing loss had prevented him from completing his work. Because the employee being disabled is one of the conditions in La. R.S. 23:1031.1(E) that starts the one-year clock running for bringing a workers’ compensation claim, Scott’s time for bringing his claim had not yet ended. Additionally, there had not yet been any discovery into this issue. 

    PCA also argued it was improper for the court to have awarded Scott attorneys’ fees and penalties. While PCA admitted there were other cases where the court had awarded the employee penalties and attorneys’ fees where the employer did not permit the injured employee to select one physician of any specialty without approval, it claimed those were inapplicable here because it had filed an exception claiming Scott had improperly used summary proceedings. 

    The appellate court disagreed because Scott was entitled to a visit with his choice of physician even before a formal investigation of the merits of the claim. Therefore, the appellate court found the workers’ compensation judge had not erred in denying PCA’s exception of unauthorized use of summary proceedings and awarding Scott attorneys’ fees and penalties. 

    Navigating the Louisiana workers’ compensation system can be complex, and it is essential to have the guidance of an experienced attorney who can not only help you understand your rights but also assist you in seeking compensation if your employer fails to adhere to the statutory requirements of the Workers’ Compensation Act. An attorney’s expertise can make a significant difference in ensuring you receive the necessary support and benefits following a workplace injury.

    Additional Sources: Marvin Ray Scott v. Packaging Corp. of Am.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Selection of Medical Professionals in Workers’ Compensation Claims: Workers’ Compensation Claimant Denied Choice of Physical Therapist to Conduct Functional Capacity Evaluation (“FCE”)

  • Can a business be liable if a patron slips and falls on a wet walkway?

    Lawsuits involving slip and fall accidents are widespread. However, specific requirements must be satisfied to prevail in a slip-and-fall case. The following lawsuit helps answer the question: Can a business be held liable if a patron slips and falls on a wet walkway? 

    While walking with her son in the Treasure Chest Casino parking lot, Linda Cangelosi slipped and fell under the outdoor tent that covered part of the walkway entrance into the casino. Cangelosi slipped while stepping from the roadway to the walkway. At the time of her fall, the ground was wet, with puddles. After he fell, employees of Treasure Chest Casino assisted Cangelosi and called an emergency team. Cangelosi declined their offer to transport her to the hospital and continued to the casino. However, about 45 minutes later, she left because her hip hurt. She consulted with a doctor, who provided her with pain medication. Since the accident, Cangelosi had to use a walker and has been in pain. Cangelosi filed a lawsuit against Treasure Chest Casino. Both Cangelosi and Treasure Chest Casino filed motions for summary judgment. The trial court granted Treasure Chest Casino’s summary judgment motion. Cangelosi appealed. 

    Under La. C.C. art. 2317, the owner of a thing is liable for damage if they knew or should have known about the defect that causes damage, which could have been prevented if the owner had exercised reasonable care. Further, under La. C.C. art. 2322, this also applies to building owners. Therefore, if Cangelosi provided sufficient evidence that Treasure Chest Casino knew or should have known about the wet walkway that caused her slip and did not act reasonably, she could prevail in her lawsuit.

    On appeal, Cangelosi argued the casino’s walkway was unreasonably dangerous and defective, which resulted in her fall. She claimed there was a hazardous condition from the passing vehicles and improper drainage. She claimed her allegation there were all kinds of debris and liquids was sufficient to establish there was a hazardous condition. Treasure Chest Casino countered Cangelosi did not provide sufficient evidence to prove there was an unreasonable dangerous condition they failed to warn patrons about. Treasure Chest Casino specifically pointed to a non-skid product it used on its walkways.

    Additionally, Cangelosi and her son testified they knew the ground was wet because it had rained most of the day. A video of Cangelosi’s fall showed she stepped directly into a puddle, which the appellate court explained was an obvious hazard. Thus, Treasure Chest Casino had adequately supported its summary judgment motion with evidence its walk was not defective. In contrast, Cangelosi had not provided evidence of an unreasonably dangerous condition that caused her fall. Therefore, the appellate court agreed with the trial court’s grant of Treasure Chest Casino’s summary judgment motion because there were no disputes of material facts. 

    This case at the Treasure Chest Casino highlights the importance of establishing liability in such incidents. While Cangelosi argued that the casino’s walkway was unreasonably dangerous and defective, the appellate court ultimately found that she had not provided sufficient evidence to support her claim. The court’s decision underscored the importance of addressing the presence of clear hazards and the responsibility of business owners to ensure a safe environment for patrons. If you find yourself in a similar situation, seeking legal counsel is crucial to understanding your potential for success in a lawsuit against the establishment.

    Additional Sources: Linda Cangelosi v. Treasure Chest Casino, LLC

    Article Written By Berniard Law Firm

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