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Category: Negligence Claims

  • Contra Non Valentem Inapplicable To Lawsuit From Lung Cancer Death

    Even in cases involving tragic factual situations, strict procedural requirements must be followed to prevail on your claim. This case involves the time limits in which you must file a lawsuit and the principle of contra non valentem, which is a rule that the time limit in which someone has to file a lawsuit does not start if the other person was hiding information that would allow them to bring their claim.

    This case involves the tragic death of a husband and father, Julius Lennie. Tuboscope employed him for over thirty years. Various oil companies hired Tuboscope to clean and refurbish pipes and tubes used in the oilfield. The clean process involved the emission of a naturally occurring radioactive material. In 2010, after retiring, Lennie was diagnosed with lung cancer and died shortly thereafter. Almost four years later, his spouse and children filed a lawsuit against various companies that had hired Tuboscope.

    His surviving family claimed Lennie had been exposed to dangerous levels of radiation while working, which caused his cancer and death. They alleged the companies knew naturally occurring radioactive materials were dangerous but had not warned Lennie or taken appropriate corrective actions. The Lennies argued they had filed the lawsuit after reading an article about radiation exposure in pipe yards, so they were not on notice of their claims until September 2013.

    The companies argued the Lennies’ lawsuit should be dismissed because they had not filed it within the one-year period required in La. C.C. art. 2315.1. The Lennies argued they had no actual or constructive knowledge of their claims until they read the newspaper article in 2013. The Lennies argued their claims had not prescribed, under the theory of contra non valentem. The trial court found the Lennies had not established contra non valentem. The Lennies appealed.

    The Lennies did not dispute they had filed their lawsuit almost four years after Lennie’s death. However, they argued contra non valentem was an exception to La. C.C. art. 3467, which states legislation can create an exception to the time period in which to file a lawsuit. The appellate court explained for contra non valentem to apply, the companies would have had to done some act to prevent the Lennies from filing their lawsuit. This conduct must involve concealment, fraud, ill practices, or misrepresentations. The Lennies pointed to the companies’ lobbying efforts and publications involving naturally occurring radioactive materials as evidence they were trying to conceal the link between these materials and cancer.

    However, other evidence indicated the companies had been involved with screening methods for naturally occurring radioactive materials dating back over a decade. The State of Louisiana had also adopted applicable regulations. Therefore, the appellate court agreed with the trial court’s holding the Lennies had not provided sufficient evidence that the companies were trying to conceal the applicable causes of action from them, so contra non valentem did not apply. 

    This case illustrates one exception that can prolong how long you have to file a lawsuit. A good lawyer can advise you on the required time limits for filing different types of lawsuits and the exceptions that might apply to prolong this period. 

    Additional Sources: Patricia Lennie, Brett Lennie, and Marcella Fueslier v. Exxon Mobil Corp., et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Prescription: Time is of the Essence When Understanding Prescription and Timing of a Case

  • Mere Possibility is Not Fact: Baton Rouge Negligence Claim Falls to Summary Judgment

    Summary judgment is designed to enable judicial expediency and cost-effectiveness in the courts. It is an important and complicated procedure that can occur repeatedly during litigation. When summary judgment is asserted repeatedly in the same case, how do parties prevail in their attempts to get or defeat summary judgment motions? The following case helps answer that question. 

    Ozark Motor Lines transported a packed Ozark trailer from Restoration Hardware to Baton Rouge. In Baton Rouge, Exel Inc. received the trailer, and Exel employee, plaintiff, Alex Talbert, was injured by the boxes being unloaded from the trailer. Talbert then brought a personal injury suit against Restoration Hardware and Ozark for damages, arguing that the trailer was negligently packed and thus caused Talbert’s injuries. 

    Restoration Hardware was dismissed from the lawsuit, and later, Ozark moved for summary judgment twice. The trial court denied the first motion, but the second motion was granted after Ozark submitted additional documents to the court. Talbert appealed the trial court’s granting of summary judgment for Ozark, arguing that issues of material fact remained and that the court should not have heard Ozark’s second motion. 

     Appellate courts conduct a new assessment of evidence to decide whether the trial court’s summary judgment is appropriate. Summary judgment is an appropriate ruling if all the evidence shows no genuine issue of material fact exists. La. Code Civ. P. art. 966(A)(3). The party moving for summary judgment has the responsibility to show the court that no issues of material fact exist on the record. This responsibility, however, only applies to the issues that the moving party must show at trial. After the moving party shows the court that one or more elements of the other party’s claims lack support, the other party must provide evidence that summary judgment is still inappropriate. La. Code Civ. P. art 966(D)(1). 

    Talbert had the burden of proving Ozark’s breach of duty and the standard of care to support his negligence claim. The five requirements of this showing include (1) the defendant had a duty to conduct a standard of care, (2) the defendant did not meet this standard, (3) the defendant’s conduct actually caused the plaintiff’s injuries, (4) the defendant’s conduct legally caused the plaintiff’s injuries, and (5) the existence of actual damages. Bufkin v. Felipe’s Louisiana. The existence of duty is a question of law, and in negligence cases, there is a largely universal duty for the defendant to use reasonable care to avoid injury to others. Rando v. Anco Insulations Inc.

    Talbert argued that the second motion brought by Ozark was barred by issue preclusion because the motion was the same as the first denied motion. La. R.S. 13:4231. However, under Louisiana law, denial of an initial summary judgment motion does not prohibit a second summary judgment motion. Bozarth v. State LSU Medical Center/Chabert Medical Center. The appellate court rejected this argument. 

    Talbert also appealed, arguing the trial court incorrectly determined that no issues of material fact remained. Specifically, Talbert argued that there was still a genuine dispute as to whether Ozark had a duty to inspect the trailer’s safety and whether Ozark breached such a duty and caused Talbert’s injury. Ozark, in response, argued that there was no evidence of any duty, breach, or causation, particularly because Ozark was not involved in or present at the unloading of the trailer at Exel in Baton Rouge. 49 C.F.R. 392.9 provides that inspection duties do not apply to sealed commercial motor vehicles, and Ozark posited that the trailer was sealed such that Ozark did not have a responsibility to inspect the sealed trailer. 

    Testimony from Exel confirmed that the trailer was still sealed upon its arrival and that Exel has a policy to inspect the trailer once it is opened. Testimony from Ozark employees stated that Ozark’s driver was not permitted to inspect the trailer after picking it up for transport. Testimony from Restoration Hardware stated that Ozark drivers could inspect the trailer if they asked for Restoration Hardware’s consent, but that is extremely rare. 

    Based on the evidence, the court found that Ozark had no duty to inspect the trailer or the security of the trailer’s contents. The trailer was sealed, Ozark was instructed not to open the trailer, and Ozark’s only role in these events was transporting a sealed trailer. Talbert presented evidence that the trailer may have been poorly loaded; however, it takes more than a mere possibility to prove facts and defeat summary judgment. Hawkins v. Fowler. Because Ozark presented evidence that it did not owe Talbert a duty to inspect the trailer, and Talbert failed to provide support for the duty and standard of care elements,  the court affirmed summary judgment for Ozark. 

    Additional Sources: Talbert v. Restoration Hardware, Inc. 

    Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Motions for Summary Judgment: Appellate Court Affirms Second Motion for Summary Judgment After Rejecting the First

  • When is a Parent Company Responsible for the Safety of its Subsidiaries?

    When an individual sustains an injury while on the job, the anticipation of receiving workers’ compensation to tide them over during their recovery is natural. Regrettably, situations arise where companies are unwilling to shoulder this responsibility. The scenario becomes more intricate when a parent company distances itself from its subsidiary’s actions, attempting to evade liability for workplace injuries. This particular Louisiana Court of Appeals case delves into corporate responsibility, illuminating the circumstances under which a parent company is held accountable for the safety measures enacted by its subsidiary entities.

    Plaintiff, Truman Stanley, III, had his arm tragically severed at work when a defective oxygen cylinder exploded, and steel fragments broke off. He filed a personal injury lawsuit against Airgas USA seeking tort recovery. He later amended his complaint to include Airgas Inc., the parent company of Airgas USA, claiming it developed safety procedures and protocols and instructional materials/safety training that was inadequate and flawed, creating an unsafe workplace. Therefore, Stanley believed Airgas, Inc. should be liable in tort. The parent company moved for summary judgment stating it was immune from tort liability under the Louisiana Workers’ Compensation exclusive-remedy provision. The trial court ruled in favor of the defendant and granted summary judgment. Stanley appealed, claiming the trial court erred in finding the parent company immune from tort liability.

    Louisiana Revised Statutes 23:1032 contains the exclusive-remedy provision under the Louisiana Workers’ Compensation Act, which states the employer and anyone who may act as the employer are immune parties. However, for the immunity to apply, it “must have been engaged at the time of the injury in the normal course and scope of the employer’s business.” Under Louisiana Revised Statutes 23:13, an employer’s legal duties that cannot be delegated include providing safe working conditions for employees. That being said, providing a safe work environment falls within the course and scope of every employer’s business. If the parent company took on Airgas USA’s role, Airgas Inc. would be immune from tort liability.

    However, a parent company has no duty or liability for the subsidiary’s actions and is not responsible for the working conditions. Airgas Inc. provided evidence that it had no involvement in the day-to-day management of Airgas USA. In addition, there was no evidence Airgas Inc. took over any obligation to ensure employee safety for Airgas USA. Finally, Stanley failed to prove an essential element of his claim, that Airgas Inc. assumed the duty for Airgas USA to ensure a safe work environment. The duty to show factual support to establish the existence of a genuine issue of material fact for summary judgment was shifted to Stanley, and his failure to do so led the court to uphold the trial court’s decision to grant the defendant summary judgment. 

    This case highlights the importance of when a parent company, like Airgas Inc., is responsible for the safety protocols and conditions in place at its subsidiaries. It also highlights the importance of genuine issues of material fact when it comes to summary judgment cases. Injured workers often expect workers’ compensation from their company, but it is important to understand who may be responsible for the injuries.

    Additional Source: Truman Stanley III v. Airgas, Inc. 

    Written by Berniard Law Firm Writer Alivia Rose

    Additional Berniard Law Firm Article: When Can I File a Tort Lawsuit against my Employer if I am Hurt at Work in Louisiana?

  • Lafourche Parish Court Demonstrates the Importance of Employee-Employer Relationship in Workers’ Compensation Cases

    Unfortunately, accidents in the workplace are not uncommon. What happens, however, if you unknowingly signed an agreement making your employer immune from a liability claim? The following Lafourche Parish case outlines this predicament. 

    In September 2013, Neville Patterson signed multiple documents with Raceland Raw Sugar, LLC (RRS) and Raceland Equipment Company, LLC (REC) to haul sugar cane for the former. Included in this paperwork was an indemnification agreement identifying Patterson as the contractor and RES and RRS as statutory employers. 

    Two months later, Patterson created N-A-N Trucking, LLC (N-A-N) and started to operate his truck. Following this development, RRS began making checks from hauls payable to N-A-N. These checks were endorsed by Patterson, who continued to receive driver wages from REC. 

    The following month, Patterson was unloading the trailer at the RRS mill when a cable broke, forcing the trailer to fall on the truck and injure his back and neck. Patterson then filed a claim for damages, naming REC and RRS as defendants, asserting he was an employee of N-A-N, and claiming the accident that caused his injuries resulted from RRS’ and REC’s negligence. RRS and REC responded by claiming that Patterson was REC’s direct employee and RRS’ statutory employee, barring his claims via the Louisiana Workers’ Compensation Act. 

    The 17th Judicial District Court for the Parish of Lafourche denied the motion submitted by RRS and REC, noting conflicting evidence on whether Patterson was a direct employee of REC and inconsistent evidence on whether the indemnification agreement showed that he was N-A-N’s employee or a contractor with REC and RRS. REC and RRS then renewed their motion for summary judgment. 

    In their renewal, RRS and REC claimed that Patterson was an independent contractor of both companies via a written agreement compliant with Louisiana law, conveying statutory employer status on RRS and REC and making them immune from civil tort liability. Patterson then argued that he was an employee of N-A-N and no contract existed between RRS and N-A-N. 

    The District Court then dismissed Patterson’s claims and granted summary judgment, finding the indemnification agreement signed by Patterson demonstrated a rebuttable presumption of a statutory employment relationship. The court also found Patterson, who had the burden of proving the relationship was severed when he formed N-A-N, failed to deliver any proof the contract was revoked under law. Patterson then filed an appeal with the Louisiana First Circuit Court of Appeal. 

    Under La. R.S.23:1061, a statutory employer relationship does not exist unless a written contract between the principal and a contractor recognizes the principal as the statutory employer. Additionally, the contractually recognized relationship can be overcome by showing the work performed was not an integral or essential part of the generation of the principal’s goods, products, or services. Further, the employer seeking to avail itself of tort immunity holds the burden of proving it. See Fleming v. JE Merit Constructors, Inc.

    The Court of Appeal found that Patterson entered into an indemnification agreement in his capacity, which listed him as a contractor. Additionally, because the agreement recognized RRS and REC as statutory employers and Patterson as an owner/operator, the Court of Appeal found it was unnecessary to enter into an additional contract following the formation of N-A-N. Next, as the court found the agreement between Patterson and RRS and REC conveyed a statutory employer status, there existed a rebuttable presumption of a statutory employer relationship. The Court of Appeal found Patterson failed to deliver proof to rebut this presumption by showing that hauling sugar cane to a sugar mill was not crucial to the ability of the principal to produce its products, goods, or services. As such, the District Court’s judgment was affirmed. 

    This case shows the importance of hiring an experienced attorney to review all employee-employer documents before signing them, as you may be entering into a relationship agreement that would bar you from receiving compensation in the case of an accident. The right attorney can also help you provide the evidence necessary to prove your lawsuit.  

    Additional Sources: NEVILLE PATTERSON VERSUS RACELAND EQUIPMENT COMPANY, LLC AND RACELAND RAW SUGAR LLC D/B/A RACELAND SUGAR MILL

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on the Importance of Evidence in Workers’ Compensation Lawsuit: Workers’ Compensation Lawsuits and the Battle for Evidence — Louisiana Personal Injury Lawyer Blog

  • Faulty Foundations: Battling the Dark Side of Medical Innovation – The Defective Medical Device Lawsuit Saga

    Medical professionals are expected to uphold a standard of care in their practice. Unfortunately, life can present us with unfortunate circumstances where this standard is not met. When we experience injuries or worse due to the actions of those responsible for our treatment, healing, or diagnosis, medical malpractice claims can serve as a means to seek compensation and justice.

    In a recent legal battle that captured attention, a lawsuit between Randy A. Roberts, Sr., Johnson & Johnson, Inc., and its subsidiary Ethicon, Inc., took an intriguing turn. Roberts alleges that he suffered injuries caused by a defective medical device manufactured by J&J, leading him to file a product liability lawsuit. However, a district court granted summary judgment in favor of the defendants, prompting an appeal. 

    Roberts claims that during a hernia repair surgery in 2006, a Prolene Hernia System (PHS) produced by J&J was implanted in his body. Subsequently, he experienced debilitating pain, requiring three surgeries in 2015 to remove the PHS due to an infection. Dissatisfied with the outcome, Roberts initiated legal action against J&J, seeking damages under Louisiana law.

    Roberts alleges the medical device implanted in his body was defective, leading to his suffering and subsequent surgeries. He contends that J&J should be held responsible for the injuries and damages he sustained due to the defective product. The trial court applied the standard of review for summary judgment, which involves determining whether there is a genuine dispute of material fact. Fed. R. Civ. P. 56(a). Under this standard, the court reviews all evidence and draws reasonable inferences in favor of the non-moving party. Hanks v. Rogers.

    The Fifth Circuit Court of Appeals carefully examined the evidence presented by both parties. Roberts provided medical records from his 2015 surgeries that confirmed the presence of a PHS, supporting his claim the device was implanted during the 2006 surgery. On the other hand, J&J relied on the 2006 records, which suggested that Roberts had a different product implanted.

    The court emphasized that all evidence and reasonable inferences should be viewed in favor of the non-moving party at the summary judgment stage. In this case, Roberts’ evidence created a genuine dispute of material fact, as it allowed for a reasonable inference the PHS was indeed implanted during the 2006 surgery. The court disagreed with J&J’s argument that the 2006 records should be favored, noting that computer and medical records are not infallible.

    As a result, the Fifth Circuit Court of Appeals vacated the district court’s grant of summary judgment, meaning the initial decision was overturned. The case was remanded to the district court for further proceedings, allowing both parties to present their arguments and evidence.

    In a significant development, the Fifth Circuit Court of Appeals overturned the grant of summary judgment in Roberts’ defective medical device lawsuit against J&J. The court found there was a genuine dispute of material fact, supporting Roberts’ claim that Prolene Hernia System (PHS) was implanted during his surgery. The case was remanded to the district court for further proceedings, allowing both parties to present additional evidence and arguments.

    Additional Source: RANDY A. ROBERTS, SR.; NATASHA ROBERTS v. JOHNSON & JOHNSON, INCORPORATED; ETHICON, INCORPORATED

    Written by Berniard Law Firm Blog Writer: Juliana Greco Additional Berniard Law Firm Article on Louisiana Pain and Suffering cases: Summary Judgment Granted in Medical Malpractice Lawsuit Against Louisiana State University Health Systems and Failure of Hospital Staff to Properly Notify Patient of Device Manufacturer Notice Leads to Medical Malpractice Liability

  • Sufficient Evidence Essential To Establish Damages From Car Accident Lawsuits

    In the aftermath of a car accident, the quest for justice often extends beyond determining fault, delving into the intricate realm of calculating damages. Even when the liability is undisputed, securing compensation can be laden with legal complexities. The following case unveils the story of Shelley Cooley, a collision victim navigating the labyrinth of litigation to ascertain the rightful compensation for her injuries. The journey sheds light on the indispensable role of compelling evidence, from medical testimony to personal accounts, in establishing the magnitude of damages in the aftermath of an accident.

    Shelley Cooley was involved in a car accident where her car was hit from behind by a car driven by Timothy Adgate, who worked for the City of Shreveport. Cooley had to obtain medical treatment after the accident for pain in her knee, back, and neck. Cooley filed a lawsuit against Adgate and the City of Shreveport. The parties agreed the City of Shreveport was liable because Adgate was completely responsible for the accident while working as a police officer. The only issue at trial was the amount of damages owed to Cooley.

    Cooley was the only witness to testify at trial. Medical evidence was presented through the deposition transcripts of various doctors. The trial court ruled the accident had exacerbated Cooley’s pre-existing medical issues but declined to award any damages for future medical expenses because the evidence about future medical expenses was speculative. The trial court awarded Cooley $50,000 in general damages and $79,508.66 for past medical expenses. Cooley filed an appeal.

    On appeal, Cooley argued she should have been awarded more than $50,000 in general damages because her injuries from the car accident required medical treatment for over four years. Someone who is injured because of another is entitled to full compensation for the resulting damages. See La. C.C. art. 2315. General damages are not required to be exactly established and include things like inconvenience, loss of physical enjoyment, and mental and physical pain. See Bellard v. American Cent. Ins. Co. 

    The appellate court reviewed the evidence presented at trial, including Cooley’s testimony about the pain and suffering that resulted from the injuries caused by the car accident. Based on the evidence, the appellate court found the trial court’s award of $50,000 in general damages was not an abuse of discretion. 

    Cooley also argued the trial court erred in not awarding her any damages for future medical expenses. She claimed the medical evidence and expert testimony supported an award of damages for future medical expenses. To recover for future medical expenses, the plaintiff must establish that such expenses are probable with supporting medical testimony. See Menard v. Lafayette Ins. Co. Because a tortfeasor (here, Adgate) takes the victim (here, Cooley) as they come, the fact Cooley had pre-existing medical issues at the time of the car accident did not preclude her from recovering for future medical expenses. 

    In reviewing the medical evidence presented, the appellate court found Cooley had provided sufficient evidence to establish she would likely have future medical expenses from her injuries in the car accident and the probable amount of those expenses. Therefore, the appellate court amended the judgment to award Cooley $269,129 for future medical expenses. 

    As seen here, sufficient evidence is essential to establish the damages to which you are entitled A good attorney can advise you on what evidence you should present to support your claim for damages. 

    Additional Sources: Shelley Cooley v. Timothy Adgate and City of Shreveport

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Evidence Required for Future Medical Expense Damages: Make No Mistake, Medical Testimony Is Required For Juries To Award Damages For Future Medical Expenses

  • Workers’ Compensation Settlements: Protecting Your Social Security Benefits and Rights

    Settling a lawsuit can have many far-reaching effects. Not only will it result in the dismissal of your lawsuit, but it could also affect things such as your social security benefits. Therefore, it is important that you consult with an attorney and carefully consider if a settlement is in your best interest. Additionally, as seen in this case, if you accept a settlement offer, you must ensure the related court order includes all required aspects so you do not have to deal with unintended consequences. 

    Kenneth Clark and his employer, Walgreens, reached a settlement related to Clark’s workers’ compensation claim. A workers’ compensation judge approved the settlement and entered a judgment dismissing the claim. Clark then petitioned the workers’ compensation judge to amend the judgment to include language to divide the indemnity part of his settlement across his lifetime. This proposed amendment would not change the total amount of the settlement. Clark wanted this amendment so the Social Security Administration could pro-rate the settlement so it could calculate the required disability offset. Walgreens objected to this amendment. After a hearing, a workers’ compensation judge entered an amended order reflecting Clark’s requested language. Walgreens appealed. 

    On appeal, Walgreen argued the trial court did not have jurisdiction to amend the initial order approving Clark’s settlement with Walgreens. La. R.S. 23:1272 governs the settlement of workers’ compensation claims. This statute has many safeguards for preventing an employee from being pressured to improperly settle his or her claim. Courts are to liberally construe workers’ compensation law in favor of workers to protect them from the burden of workplace injuries. 

    Clark subsequently requested the court amend the initial order of approval because his counsel had not advised him to request language related to the indemnity portion of the settlement, which the Social Security Administration requires. Under La. C.C.P art. 1951, a judgment can be amended to alter the phrasing if it does not alter the judgment’s substance. Here, the purpose of amending the judgment was to include the language the Social Security Administration required. The amendment did not affect Clark’s or Walgreens’ rights or obligations and did not add anything substantive to the order. The added language would assist the Social Security Administration in determining its offset from Clark’s settlement.  Because the amendment just changed the phraseology and not the substance of the order, the appellate court disagreed with Walgreens’ argument the court did not have jurisdiction to amend the initial order.

    As seen here, many unique requirements exist for settling a workers’ compensation claim. If you are involved in a workers’ compensation dispute, it is important to consult with a good attorney who can advise you on possible paths forward. It is especially important to consult with an attorney if you are considering a possible settlement of your workers’ compensation claim. A good attorney can help review the settlement and associated court order to ensure it is in your best interest and contains all required aspects. 

    Additional Sources: Kenneth Clark v. Sedgwick CMS, et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Amended Judgments: A Louisiana Court Signs Two Final Judgments, What Happens?

  • Harvey Man Denied Damages For Truck Falling On Foot, Importance of Proof in Lawsuits

    If part of a car falls on you at a vehicle yard, you should be able to recover damages for your injuries from the yard owner. However, if you do not provide sufficient evidence, you will likely be unable to recover for your injuries.

    While Rico Lee was a customer at a Pull-A-Part vehicle yard in Harvey, Louisiana, he was injured when the rear of a pickup propped up on rims fell on his foot. He filed a lawsuit against Pull-A-Part and their insurer, claiming he was injured when the pick-up truck in Pull-A-Part’s control and control fell on his foot, injuring him. At trial, the jury found Pull-A-Part was not negligent. Lee appealed.

    On appeal, Lee argued the jury erred in finding in favor of Pull-A-Part, and the trial court erred by not instructing the jury about res ispa loquitor. Res ispa loquitor is a legal doctrine that allows a court to find negligence by the mere fact that the accident occurred by using circumstantial (not direct) evidence. See Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr. Here, La. C.C. art. 2317.1 required Lee to show the truck was in Pull-A-Part’s custody or control; it had a defect that resulted in an unreasonable risk of harm, Pull-A-Part knew or should have known about this unreasonable risk, and the defect caused his injury. 

    The appellate court explained that Lee did not provide evidence about the truck’s alleged defect at trial. He did not present any photos of the truck or provide testimony about what defect might have caused it to fall on his foot and injure him. Only Lee himself testified about how the accident purportedly occurred. He did not call any of the purported witnesses to testify at trial. In contrast, Pull-A-Part provided testimony about the vehicle yard and the daily safety checks for each vehicle. Their medical expert also testified it was unusual Lee had not crushed a bone or fractured his foot given the type of accident Lee testified had occurred.

    Furthermore, Lee claimed the trial court should have instructed the jury about res ispa loquitor. However, Lee and his attorneys did not object to the jury charges at trial. Additionally, the appellate court reviewed the jury charges and found the trial court had instructed the jury on res ispa loquitor. Therefore, based on its review of the evidence presented at trial, the appellate court held the jury did not err in finding in favor of Pull-A-Part.

    Even with the unusual situation of part of a truck falling on Lee’s foot, he could still not recover from Pull-A-Part because he did not provide sufficient evidence. It would have helped his case if he had provided additional evidence, such as testimony from first-hand witnesses and photographs of the truck. A good lawyer can help you prepare and present evidence to support your claims and maximize your chances of succeeding in your lawsuit. 

    Additional Sources: Rico Lee v. Pull-A-Part of New Orleans West, LLC and XYZ Ins. Co.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Personal Injury Liability: Bench and Lawsuit Collapse for Gretna, Louisiana Woman Against Local Flooring Store

    What is Res Ipsa Loquitor?

  • How To Determine Personal and Subject Matter Jurisdiction in Car Accident Lawsuit

    If you’ve been involved in a car accident and are considering filing a lawsuit, it’s essential to be aware of one crucial aspect often overlooked – the appropriate court venue. Venue refers to the location where a lawsuit is filed, and getting it right is crucial for the court to have jurisdiction, granting it the legal authority to issue judgments in the case.

    Cea Tillis was involved in a car accident on Frenchmen Street. He filed a lawsuit against the driver of the other vehicle involved in the accident, Jamal McNeil, and his insurance company (the defendants) in the Second Parish Court for the Parish of Jefferson. Tillis asserted Jefferson Parish was the proper venue under La. C.C.P art. 74, which allows a lawsuit to be brought in the location where the accident occurred or where the damages were sustained. 

    McNeil countered Jefferson Parish was not the proper court because the accident occurred outside the court’s jurisdiction, and Tillis did not live in the applicable area. The defendants argued the court did not have personal or subject matter jurisdiction and could not enter a judgment in the case. The Second Parish Court eventually transferred the case to the First Parish Court. The First Parish Court ruled in favor of the defendants, finding there was no personal or subject matter jurisdiction. The court then dismissed Tillis’ lawsuit, and he appealed. 

    The appellate court noted the trial court transcript indicated the trial court granted the exceptions of lack of subject matter and personal jurisdiction because the accident occurred and Tillis lived in Orleans Parish, which was outside the court’s territorial bounds. However, the appellate court explained these arguments about where the accident occurred and where Tillis lived related to venue, not personal jurisdiction. 

    Here, First Parish Court had personal jurisdiction because a resident of Louisiana properly brought the lawsuit. Therefore, the First Parish Court had personal jurisdiction over the case. The appellate court then considered La C.C.P. art  4847 to determine whether the First Parish Court had subject matter jurisdiction.  La C.C.P. art 4847 establishes limits for the jurisdiction of parish courts. 

    The type of case (a car accident) and amount of damages at issue in the lawsuit were within the statutory limit, so the First Parish Court also had subject matter jurisdiction. Therefore, the appellate court reversed the First Parish Court’s grant of the exceptions for lack of personal and subject matter jurisdiction and reversed the dismissal of Tillis’ claims against McNeil and his insurer. 

    Filing a lawsuit in the proper court is crucial to ensure that the court has jurisdiction to hear and rule on your case. A skilled lawyer can help you navigate the complexities of court jurisdiction, venue selection, and other procedural requirements, ensuring your lawsuit is filed in the appropriate court and giving your case the best chance of success.

    Additional Sources: Cea Tillis v. Jamal McNeil & General Ins. Co. of Am.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Venue: Vermilion Parish Car Accident Case Hangs on Thread Over Improper Venue

  • Terminated Employee Not Entitled to Additional Unpaid Wages

    Getting terminated from a job is always a stressful situation. You are likely concerned about how you are going to make ends meet. This is even more true if you believe your former employer has not paid you all the wages you are entitled to. 

    Rick Calamia worked for Core Lab for under a year. He was terminated from his job. He claimed he was owed various unpaid wages, which Core Lab denied. Calamia filed a lawsuit against Core Lab under La. R.S. 23:631 for his purportedly unpaid wages and associated penalties, fees, and costs. Calamia claimed he was owed $1,808.16 for 73.8 hours of work, consisting of 7 hours of time entry pay, 16 hours of holiday pay, 49 hours of PTO, and 3.34 hours of Extended Illness Break hours, as well as 90 days of penalty wages. 

    Core Lab argued Calamia had been paid everything to which he was entitled. One of the witnesses at trial was Cerly Watson, Core Lab’s payroll manager. She testified about the payroll procedure at Core Lab, including the two-week lag between when an employee submits a timecard and when it is reconciled on a pay statement. She testified about Calamia’s pay statements that were at issue in the lawsuit and explained how the discrepancies were later reconciled. At trial, the court ruled in favor of Core Lab and found Calamia was not entitled to additional wages. Calamia appealed.

    Calamia had the burden of proof for his claim for unpaid wages and the associate penalties under La. R.S. 23:631 and La. R.S. 23:632. On appeal, Calamia claimed the trial court erred because his pay statement for pay period two improperly included a deduction of seven hours. The appellate court agreed with the trial court’s finding that Calamia did not provide sufficient proof to support this claim, given Watson’s testimony about Core Lab’s payroll procedure and the lag between submitted timecards and pay statements.

     Watson testified that the seven-hour deduction was because Calamia only had 41 hours of PTO and Extended Illness Break hours, but he had put 48 hours of it on his timesheet for Period 1. Therefore, the seven-hour deduction was to reconcile this issue. Although Calamia claimed he had over 48 hours available, the appellate court did not find the testimony or documentary evidence at trial supported this claim.

    Calamia also claimed the trial court erred in finding he was not owed any holiday pay when he was terminated. Core Lab claimed that Calamia had received the 16 hours of holiday pay to which he was entitled. Watson testified this was because he had not worked on the holidays, so the 80 hours of work on his final paycheck included the 16 hours of holiday pay. The appellate court found no error in the trial court’s agreement with Watson’s testimony and agreed Calamia had been paid for the 16 hours of holiday pay. 

    Calamia argued the trial court erred in holding he was not entitled to any wages for PTO or Extended Illness Break at the time of his termination. Here, the appellate court again agreed with the trial court’s finding Calamia had received all PTO and Extended Illness Break hours to which he was entitled because he was not entitled to accrue those hours while on a leave of absence. Therefore, the appellate court agreed with the trial court’s decision to dismiss Calamia’s claims against Core Lab.

    If you have been terminated from your job and think you have not received all the wages you are entitled to – including benefits such as PTO – a good lawyer can help advise you on possible legal action to receive those wages. 

    Additional Sources: Rick Calamia, JR. V. Core Laboratories LP

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Unpaid Wages: Seeking Unpaid Wages in Louisiana: Clarifying Petition Requirements for Employees