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Category: Negligence Claims

  • What Constitutes a Violation of a Prisoner’s Constitutional Rights?

    Prisoners, like all individuals, retain their constitutional rights even while incarcerated. However, proving a violation of these rights within the prison system can be challenging, as demonstrated in the following case. This case considers what a prisoner must show to succeed in a lawsuit against a prison supervisor alleging a constitutional violation.

    Kyle Smith Hauenstein was imprisoned at Rapides Parish Detention Center -1 (“RPDC-1”). He filed a lawsuit against the Rapides Parish Sheriff, William Hilton, and the Assistant Warden, Pat Ashley. He alleged Hilton and Ashley violated 42 U.S.C. § 1983 by delaying providing him adequate medical treatment after his right foot developed an infection. He claimed they were “deliberately indifferent” to his serious medical needs. 

    Sheriff Hilton filed a summary judgment motion, arguing qualified immunity prohibited the Section 1983 claims from being brought against him in his individual capacity. The trial court denied Sheriff Hilton’s summary judgment motion, finding qualified immunity did not prohibit Hauenstein from bringing the Section 1983 claims against Hilton in his individual capacity. Hilton appealed. 

    To overcome Sheriff Hilton’s claim of qualified immunity, Hauenstein had to show a clearly established constitutional right was violated and Hilton’s conduct was objectively unreasonable. See Hare v. City of Corinth. Here, Hauenstein claimed his Eighth Amendment right was violated because he did not receive adequate medical treatment while imprisoned at RPDC-1.

    The appellate court explained Sheriff Hilton could only be held liable for a Section 1983 violation if he knew RPDC-I’s medical system was so deficient that it put prisoners such as Hauenstein at a substantial risk that their serious medical needs would be unmet and he did not properly attempt to correct it. Additionally, because Sheriff Hilton was in a supervisory position, Hauenstein was required to show Hilton affirmatively participated in the at-issue acts that violated his constitutional rights or implemented policies that evidenced deliberate indifference to the prisoners’ medical needs. 

    The trial court denied Sheriff Hilton’s summary judgment motion claiming qualified immunity because of factual issues about whether Hilton had implemented policies. Such issues included that RPDC-I used paramedics from the Coroner’s office to treat prisoners. Because those paramedics were providing medical treatment to prisoners without a physician’s direct supervision, the trial court found there were factual issues about whether Sheriff Hilton could be held individually liable under Section 1983. 

    Sheriff Hilton countered there was no evidence other prisoners had suffered adverse health consequences because of the prison’s medical treatment system. Hilton also pointed to Hauenstein’s deposition testimony as evidence the medical system had worked effectively every time he sought care, besides for when he had an infection in his foot. This included treatments for depression, asthma, and kidney stones, among other issues. For each of those issues, Hauenstein had submitted a form and was treated, usually within 24 hours. Thus, Sheriff Hilton claimed he could not be held liable because there was only evidence of one time when the medical system failed at RPDC-I. Additionally, although the trial court held there were factual disputes about whether Sheriff Hilton failed to train guards at the prison, Hauenstein’s complaint did not include any related allegations. Further, there was no evidence any such failure resulted in Hauenstein’s alleged failure to receive adequate medical care. 

    Therefore, the appellate court found Hauenstein failed to show RPDC-I’s medical system was so deficient that it exposed prisoners to a substantial risk of unmet serious medical needs. Consequently, Hauenstein did not show a violation of a clearly established constitutional right. The appellate court found the Section 1983 claims against Sheriff Hilton in his individual capacity should be dismissed. 

    This case serves as a reminder that proving a constitutional violation within a prison setting is complex. While prisoners retain their rights, Section 1983 claims require a meticulous presentation of evidence to establish a clear and actionable violation. A qualified attorney can provide valuable guidance in evaluating the merits of such a lawsuit and ensuring the proper evidence is presented to support the claim.

    Additional Sources: Kyle Smith Hauenstein v. William Hilton

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Section 1983 Claims: Prisoner Sues Prison For Denial of an Extra Pillow And Mattress

  • Double Recovery in Helicopter Injury Case?

    If you do a favor for your boss outside of work and are injured, can you still sue for workers’ compensation benefits? This is a complex question dependent on the facts of a case. Workers’ compensation is only available for injuries suffered during employment. If the court finds that the favor was outside the scope of employment, an injured employee may only recover tort damages. In the following case, the appellate court reversed a finding of workers’ compensation in favor of tort liability. In this case, the injured worker fought against a reduction of award to offset the workers’ compensation benefits already paid to the plaintiff. 

    LaFayette truck driver Tommie Hebert was employed by Industrial Helicopters, Inc. as a commercial fuel transporter for nearly 30 years. Industrial Helicopters primarily served as an aerial herbicide application company. The owner of Industrial Helicopters also owned Game Management, Inc. Game Management leased hunting land and operated deer tracking and capturing surveys. His boss’s son asked Herbert to work as a deer netter on a Game Management helicopter survey. During the survey, Herbert fell from the helicopter to the ground and was seriously injured. The status of workers’ compensation became muddled because of the dual businesses. 

    Hebert was originally granted workers’ compensation benefits because he was found to be within the scope of his job at Industrial Helicopters when he fell. On appeal, Hebert was conversely found to be outside the scope of employment during the deer netting. Industrial Helicopters was only liable for tort damages based on this finding. Hebert additionally motioned for his court costs to be paid by the defendant. 

    Employers that pay out workers’ compensation benefits and are also found liable for tort damages are entitled to an offset of costs. Gagnard v. Baldrige. A credit may be given towards tort damages to the extent that workers’ compensation has been paid. Louisiana legal principles bar double recovery on a single claim. Albert v. Farm Bureau Ins. Co. Court costs assessed by lower courts may only be overturned upon a finding of abuse of discretion. Trahan v. Plessala. 

    Industrial Helicopters had already paid the workers’ compensation damages while the appeal was being litigated. The Court, therefore, held that the defendant was entitled to a full credit to offset the assessed tort damages. Herbet had already recovered workers’ compensation damages equal to the tort damages found on appeal and was therefore barred from double recovery.  The Court also found that the lower court had abused its discretion in ruling Herbet responsible for his court costs. Therefore, Herbert had prevailed on the tort claim and should not have been required to pay his court fees.

    This case may initially read as an injustice to Hebert, a long-time employee severely injured while doing a favor for his boss’s son. However, in this case, the complicated legal proceedings obscure that Hebert was fully compensated for his injury through workers’ benefits. General notions of judicial fairness implore courts to balance the interests of all parties, even in favor of a corporation over an individual. Though Hebert did not receive his sought double recovery, he was successful on his court costs claims and likely received just compensation for his injuries. 

    Additional Sources: HEBERT V. RICHARD

    Written by Berniard Law Firm Blog Writer: Corrinne Yoder-Mulkey

    Additional Berniard Law Firm Articles on Workers’ Compensation: When Can I File a Tort Lawsuit against my Employer if I am Hurt at Work in Louisiana?

  • Patient’s Early Post-Operative Dismissal Causes Medical Expert Dilemma

    Medical malpractice claims are not always limited to instances during treatment or surgery and may, as one young patient argued, include failures that occur afterward or post-operatively. 

    Justin Thomas, an eighteen-year-old, aspiring armed serviceman, underwent a right shoulder arthroscopy at Lafayette Surgicare to repair his repeated rotator cuff dislocations. The surgery was considered an outpatient procedure that Thomas’s surgeon, Dr. Otis Drew (Dr. Drew), performed beginning just before 9:00 AM on July 1, 2013, and completed around 11:00 AM the same day. Before and after the surgery, Thomas was given significant anesthesia and medication. By 1:50 PM that afternoon, Thomas was discharged into the care of his parents. Less than six hours later, after Thomas’s mom gave him a prescribed dose of oxycodone, he fell unconscious and was unresponsive to Narcan, so an ambulance arrived at Thomas’ parents’ home taking him back to the hospital, where he lay in a coma for five days. As a result, Thomas experienced brain damage and lost the use of the left side of his body. 

    In May 2016, a medical review board determined that despite Thomas’s injury, the medical staff, including Dr. Drew, met the required standard of care. Nevertheless, three months later, Thomas filed a lawsuit against Dr. Drew, the anesthesiologist, Lafayette Surgicare, Lafayette Surgery Center, and The Regions Health System of Acadiana. His complaint alleged that he was released too early post-operatively and prescribed extensive anesthesia and heavy narcotic medication that induced him into a coma. In response, Dr. Drew filed a summary judgment motion that the trial court, Fifteenth Judicial District Court Parish of Lafayette, granted, dismissing Thomas’s claims. Thomas appealed to Louisiana’s Third Circuit Court of Appeals (Third Circuit), arguing that the trial court erred in finding that his expert affidavit was inadmissible and did not create a genuine issue of material fact.

    On appeal, the Third Circuit first considered Thomas’s argument that Dr. Drew did not follow the necessary procedures to object to the admissibility of his expert’s opinion at the trial court. In his motion for summary judgment, Dr. Drew argued that Thomas did not offer expert testimony that Dr. Drew’s alleged breach caused Thomas’s injuries. Previously, however, Thomas had presented an affidavit by Dr. Albert Gros (Dr. Gros), an anesthesiologist and pain management physician, to oppose Dr. Drew’s motion for summary judgment. Dr. Gros’s affidavit stated in part that Thomas “was not monitored long enough before discharge from the Recovery Room at Lafayette Surgery Center.” 

    At the Third Circuit, Thomas also argued that to challenge the admissibility of Dr. Gros’s affidavit properly, Dr. Drew had to follow the rules outlined in La. Code. Civ.P. art. 1425. Additionally, Thomas maintained that Dr. Drew did not make a “Daubert challenge,” which is a specific motion made to the trial court to exclude testimony from an unqualified expert. This challenge comes from a United States Supreme Court opinion, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) that identified several factors in determining the legitimacy of the challenge, including: (1) whether the asserted theory or technique at issue has been tested; (2) whether the theory or technique has underwent peer review and publication; (3) whether the theory or technique is known or has a potential error rate; (4) whether there was in existence and practice certain standards controlling operation of the theory or technique; and (5) whether the theory or technique has widespread acceptance within its relevant scientific community. 

    Thomas argued on appeal that the trial court did not consider the Daubert factors or conduct a hearing before it excluded his expert’s testimony. The Third Circuit disagreed with Thomas’s argument, given that the trial court considered Dr. Gros’s qualifications after a lengthy discussion of Daubert’s applicability by Dr. Drew’s attorney. Accordingly, the Third Circuit concluded that contrary to Thomas’s assertion, the trial court did conduct a Daubert analysis, and Dr. Drew did follow all the proper procedures for challenging the admissibility of Dr. Gros’s affidavit.

    Lastly, Thomas attempted to convince the Third Circuit that the fact that his expert, Dr. Gros, was not an orthopedic surgeon does not preclude him from testifying to the issue of whether Thomas was released too soon post-operatively. The Third Circuit agreed with Thomas that an expert in orthopedic surgery was not necessary but nevertheless found that the affidavit provided by Dr. Gros did not establish that Dr. Drew breached the standard of care by releasing Thomas too early following his surgery. Strikingly for the Third Court, Dr. Gros’s affidavit never mentioned Dr. Drew, never stated what standard of care Dr. Drew owed Thomas post-operatively, and never included any indication that Dr. Drew breached any standard of care owed to Thomas. Instead, Dr. Gros’s affidavit makes conclusory statements, which the Third Circuit ruled that conclusory affidavits without supporting underlying facts are legally insufficient to defeat a motion for summary judgment.

    As a result, the Third Circuit affirmed the trial court’s decision to grant Dr. Drew’s motion for summary judgment and to dismiss all of Thomas’s claims. The medical review board’s determination that Dr. Drew did not breach the standard of care owed to Thomas carried more weight before a court than Dr. Gros’s conclusory affidavit about Thomas’s post-operative care. One of the larger takeaways from this case is that future medical malpractice litigants will be best served if their expert affidavits are not conclusory. Moreover, litigants in these cases are always better equipped with good attorneys who know and follow the proper procedures.

    Additional Sources: JUSTIN THOMAS VERSUS OTIS RASHAD DREW, M.D., ET AL. 

    Written by Berniard Law Firm Blog Writer: Gina McKlveen

    Other Berniard Law Firm Articles on Medical Experts: Unreliable Medical Expert Methodology Equals No Case Under Daubert in Chalmette Refinery Case,  Court Fails to Use Proper Procedure to Disqualify Medical Expert Witness, Case Proceeds for Widow in Jefferson Parish

  • What amount of force is allowed when restraining an inmate?

    The burden of proof lies heavily on claimants to establish the elements of the claim they bring forward. Failing to do so can result in the dismissal of the charge. In the case of George Preston, a prisoner in a Louisiana jail, his complaint against Lieutenant Hicks and four state correctional officers for excessive use of force highlights the importance of meeting the requirements to substantiate a claim. Analyzing the alleged violation of Preston’s Eighth Amendment rights, the court carefully considered the evidence and ultimately decided to dismiss some claims while allowing others to proceed.

    George Preston, a prisoner in a Louisiana jail, filed a complaint against Lieutenant Hicks and four state correctional officers for excessive use of force, violating his Eighth Amendment rights. The incident occurred when an officer opened an inmate’s cell. When the door opened, Preston rushed in and allegedly tried to hit the prisoner. The Sergeant on duty called for help from Lieutenant Bowie, Lieutenant Hicks, Sergeant Dauzat, and Sergeant Augustine. The officers then worked together to restrain Preston. 

    Preston claimed Lieutenant Hicks knocked him to the floor and elbowed him repeatedly in his face. While on the floor, Sergeant Augustine pinned his left arm behind him while Lieutenant Hicks pulled and twisted his right arm. Preston alleged Hick’s actions caused his shoulder to dislocate. Preston claimed he only entered the cell as a joke and that the officer retaliated excessively. 

    The case notes stated Preston entered the cell after Lieutenant Hicks instructed him not to and that he allegedly attempted to hit the inmate. Two inmates provided sworn statements which recalled Preston screaming as Hicks twisted his arm. 

    The court agreed the use of force was necessary to restrain Preston from taking further actions in the cell. In a disciplinary report, Preston admitted to his guilt and agreed Hick’s use of force was used in good faith. The district court dismissed Preston’s complaint under 28 U.S.C. § 1915(e)(2)(B) & 1915A. Under 28 U.S.C. § 1915(e)(2)(B) & 1915A and Federal Rule of Civil Procedure 12(b)(6A), a claimant must present an issue in which they will be able to receive relief.

    Preston then filed an administrative complaint; however, the court denied it. The denial was due to x-ray evidence which showed Preston’s shoulder was not dislocated. Preston appealed. When analyzing a claim for excessive force under the Eighth Amendment, the focus is whether the force applied was in good faith. (Hudson v. McMillian). The claim also must meet four requirements: (1) describe the degree of harm, (2) the reason for the force, (3) the correlation between the need and the force applied, (4) reasonableness of the expected danger, and (5) ‘any efforts made to reduce a forceful interaction. (Whitley v. Albers). 

    Preston agreed he ran into another inmate’s cell and ignored verbal commands to stop, which caused Sergeant Ford to call for help. Although Sergeant Augustine restrained Preston’s left arm, Preston’s screams and concerns were guided toward Lieutenant Hicks as he feared his right arm would break. While Sergeant Augustine held back Preston’s left arm, he only caused it to become strained, not injured. The Appeals Court reasoned Lieutenant Hicks’s action of pushing him to the floor, elbowing him repeatedly in his face, and twisting his arm was excessive. 

    The appeals court held Preston alleged sufficient facts against Lieutenant Hicks. The appeals court reversed the dismissal of the claim against Lieutenant Hicks and remanded the case. However, the appeals court dismissed the claims against Lieutenant Bowie, Sergeant Ford, Dauzat, and Augustine. 

    This case serves as a reminder of the rigorous standards required to prove excessive force and violation of constitutional rights. While the court dismissed claims against certain correctional officers, the reversal of the dismissal against Lieutenant Hicks demonstrates the court’s recognition of sufficient evidence supporting Preston’s allegations. As the legal process unfolds, it becomes evident that meeting the elements and requirements of a claim is essential for claimants to seek justice and hold responsible parties accountable.

    Additional Sources: George Andrew Preston v. Bobby Hicks; Lieutenant W. Bowie. Sergeant Augustine, Sergeant Dauzat; Sergeant Ford

    Written by Berniard Law Firm Blog Writer: Needum Lekia

    Other Berniard Law Firm Articles on frivolous claims: Can a Pro Se litigant Proceed In Forma Pauperis?

  • Louisiana Inmate Failed to Establish Deliberate Indifference to Serious Medical Needs

    When a prison official fails to provide necessary medical care to an inmate, legal action may be pursued against the individual. However, claiming deliberate indifference to an inmate’s serious medical needs requires meeting specific criteria. As exemplified by the case below, these factors are crucial in preventing individuals from bringing frivolous claims against government officials, ensuring that legitimate cases receive the attention they deserve.

    In this case, Gregory Bailey, a Louisiana prisoner, filed a lawsuit against several defendants, including East Baton Rouge Parish Prison, the prison warden, the 19th Judicial District Court for East Baton Rouge Parish, a judge, and Dr. Vincent Leggio, alleging acts of deliberate indifference to his serious medical needs. The U.S. District Court for the Middle District of Louisiana dismissed Bailey’s claims, stating a failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and summary judgment under Federal Rule of Civil Procedure 56(a). This appeal to the U.S. Fifth Circuit Court of Appeal follows. 

    In his appeal, Bailey moved to progress in forma pauperis, thereby challenging the District Court’s decision that his appeal was not accepted in good faith. The Court of Appeal then reviewed Bailey’s good faith claims regarding whether his legal points were substantiated on their merits and not frivolous. See Howard v. King. 

    On appeal, Bailey claimed the District Court erred in dismissing his claims that Dr. Leggio was purposefully indifferent to his medical needs. Bailey did not fight the dismissal of his assertions against the prison, the prison warden, the 19th Judicial District Court, or the judge by the District Court. 

    To win a claim for deliberate indifference, the claimant must show that a government official’s intentional indifference posed a significant risk of grave medical harm. See Wagner v. Bay City. It can be shown that an official acted intentionally indifferent to a prison inmate’s health if the official 1) knew the inmate was facing a significant risk of serious injury and 2) failed to take reasonable actions to decrease the risk of injury. See Farmer v. Brennan.

    The Court of Appeals found Bailey’s argument amounted to disagreement with treatment type or a claim of malpractice, not deliberate indifference. Additionally, the Court of Appeal found the evidence provided by Dr. Leggio established there was no real issue of material fact, Dr. Leggio did not disregard Bailey’s complaints or refuse to treat him, did not purposefully treat him wrongly, and did not show a wanton indifference for his serious health concerns. The Court of Appeal found that Dr. Leggio’s presented evidence contradicted Bailey’s claims that Dr. Leggio was intentionally indifferent, purposely failed to help Bailey, and allowed Bailey to suffer. As such, Bailey did not present viable evidence to show a real triable issue. 

    As Bailey failed to establish a genuine issue for trial regarding his deliberate indifference claim against Dr. Leggio, the Court of Appeal denied his motion in forma pauperis and dismissed his appeal as frivolous. 

    This case highlights the significance of presenting essential evidence when alleging deliberate indifference against prison officials. It underscores the importance of seeking the guidance of experienced attorneys knowledgeable in various claims to ensure the necessary evidence is provided to support arguments effectively. By understanding the requirements and adhering to the standards set by the court, inmates can pursue legitimate claims and hold responsible parties accountable for their actions or inactions.

    Additional Sources: GREGORY BAILEY v. EAST BATON ROUGE PARISH PRISON; DENNIS GRIMES; 19TH JUDICIAL DISTRICT COURT; TONY MARABELLA; DOCTOR VINCENT LEGGIO, East Baton Rouge Parish Prison Dentist

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on Frivolous Lawsuits: Medical Malpractice Claim Sent Back to the Trial Court due to Doctor’s Affidavit Sincerely or Not: Could You Be Liable for Bringing a Frivolous Appeal?

  • Injured Dump Truck Driver Deemed 50% At Fault For Collision On Job Site

    Workplace accidents can strike unexpectedly, leaving individuals injured and grappling with the complex question of who bears responsibility. However, when such accidents involve heavy machinery and contractual relationships, determining fault can become even more challenging. In the case of Clark Nixon, a dump truck driver at Terrebonne Levee & Conservation District (TLCD), the lines blurred further when an incident unfolded on the job site. As Nixon seeks justice for his injuries, the lawsuit shines a light on the intricate interplay of liability, contractual obligations, and the need for skilled legal representation to recover medical costs and hold those at fault accountable.

    Nixon worked a contract job as a dump truck driver at Terrebonne Levee & Conservation District (TLCD). Nixon’s duties as a dump truck driver included delivering dirt to TLCD, where the surplus would eventually be used to build a levee. Specifically, Nixon would back his truck up to the dirt mound and unload the dirt from his truck. Once finished, a bulldozer truck would follow by pushing the dirt mound up a ramp, then reversing down the ramp to make room for the next dump truck. On the TLCD job site, there was also an individual known as the “spotter,” who verified the dirt being dumped and directed the dump truck driver where to unload their pile of dirt. 

    After a spotter verified the dirt in Nixon’s dump truck, Nixon began to back his truck towards a specific dirt pile to unload. David Danos was handling a bulldozer at the same time. As Nixon was reversing toward the dirt pile, his truck collided with Danos’ bulldozer, which was traveling down the ramp after moving the dirt. 

    Nixon filed a lawsuit, alleging he was injured from the collision and that the negligence of Danos and TLCD caused the collision. The defendants denied Nixon’s allegations, contending the collision was 100% Nixon’s fault. The trial court ultimately found a combination of fault from all parties, Nixon, TLCD, and Danos caused the incident. The lower court allocated 50% fault to Nixon and the other 50% to TLCD and Danos. After totaling Nixon’s damages to just under $345,000, the lower court reduced it by 50% based on the allocation. 

    Nixon then promptly appealed the judgment, contending TLCD and Danos were the only parties at fault for the collision. TLCD and Danos also appealed the judgment, arguing the opposite, that Nixon was solely responsible and that he should be allocated 100% fault. Upon review and based partly on the reasoning of TLCD and Danos’ companion appeal, the First Circuit Court of Appeal affirmed, finding “no manifest error” in the lower court’s factual determinations and allocation of 50% fault to Nixon. 

    Workplace accidents can happen at any time, whether or not it is due to any fault of your own. When there is a resulting injury from such an accident, an experienced attorney can help you get treatment expenses covered and on the road to recovery much more quickly. 

    Additional Sources: Clark Nixon vs. Terrebonne Levee & Conservation District, Arch Insurance Company and David Danos 

    Written by Berniard Law Firm Blog Writer: Kate Letkewicz

    Additional Berniard Law Firm Articles on Workplace Accidents: Louisiana Court Bars Recovery for NOPD Officer Who Tested Positive for Morphine on the Job; When Coworkers Attack: Negligence Claims for Intentional Workplace Injuries

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

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

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

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

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

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

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

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

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

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

    Additional Sources: Mitchells vs. Aaron’s et al

    Written by Berniard Law Firm Blog Writer: Emily Toto

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

  • Understanding Open and Obvious Defects: Implications for Personal Injury Claims

    When it comes to personal injury claims resulting from slips, trips, or falls, the concept of open and obvious defects plays a significant role. Failing to act reasonably or being harmed by an apparent defect may hinder your ability to recover compensation for your injuries. This case exemplifies the importance of these factors in determining liability.

    Ray Eskine was a permanently disabled individual who used a walker to move around.  When trying to see how long the grass was on his lot across the street, he walked across an elevated walkway in front of his house. One of the wheels on his walker slipped, causing him to fall into a ditch and get injured. 

    Eskine and his wife filed a lawsuit against the City of Gretna and its insurer, claiming the walkway was defective and presented an unreasonably dangerous condition. They claimed the City of Gretna was responsible for the care of the walkway and had knowledge of the defective condition that resulted in his injury. 

    The City of Gretna filed a summary judgment motion, arguing the Eskines could not show the walkway’s condition created an unreasonable risk of harm. Additionally, the City of Gretna argued the walkway’s condition was open and obvious, and Eskine did not exercise reasonable care in walking on it. Eskine claimed the walkway was defective because it was too narrow, had too much slope, was uneven, and the asphalt was breaking off. He said over the past twenty years, during which he had been using his walker, he had only walked over the at-issue walkway two or three times. He conceded nothing prevented him from seeing the walkway’s condition at the time of the incident. 

    A City of Gretna employee submitted an affidavit stating he was unaware of any prior complaints regarding the walkway-s condition. The trial court granted the City of Gretna’s summary judgment motion. The Eskines appealed.

    The Eskines argued the trial court erred in granting summary judgment in favor of the City of Gretna. They claimed there was a hidden defect in the walkway as it was not apparent it was too narrow. The City of Gretna claimed the walkway’s condition was open and obvious, and the appellate court agreed. Here, Eskine indicated he knew the location and condition of the at-issue walkway in front of his house. The evidence indicated that Eskine and anyone else could see the width of the walkway before deciding to walk there. The appellate court explained a reasonable person like Eskine, who used a walker, should not have tried to cross the walkway. Therefore, the appellate court agreed with the trial court’s grant of summary judgment in favor of the City of Gretna. 

    In personal injury cases involving hazardous conditions, the presence of open and obvious defects can significantly impact the outcome. If a defect is apparent and a reasonable person should have been aware of it, it may hinder the injured party’s ability to recover damages. In this case, the appellate court agreed with the trial court’s decision, noting that the condition of the walkway was open and obvious. Since Eskine was aware of the walkway’s condition and chose to walk on it despite its apparent defects, the court concluded that he did not exercise reasonable care. Therefore, the summary judgment in favor of the City of Gretna was upheld.

    Consulting with a knowledgeable attorney is crucial if you have suffered harm due to a dangerous or defective condition. They can guide you on the necessary evidence to support your claim, assess the viability of your case, and help you navigate the complexities of personal injury law. By seeking legal advice, you can better understand your rights and options to pursue the compensation you deserve.

    Additional Sources: Ray Eskine and Sondra Eskine v. The City of Gretna

    Additional Berniard Law Firm Article on Open and Obvious Conditions: Popular Baton Rouge Shopping Center Avoids Liability for “Open and Obvious” Sidewalk Danger

  • Supermarket Not Liable For Slip-and-Fall Because Of Lack Of Constructive Notice

    When you make a quick run to the store, the last thing you expect is to be injured while shopping. If you slip and fall at a store, you might expect the store to be responsible for any injuries you might have suffered. However, Louisiana law requires that a store have actual or constructive knowledge of the hazardous condition to be held liable. Therefore, if you are considering filing a lawsuit against a store for a slip-and-fall accident, it is essential to provide evidence of the store’s knowledge so your claim does not get dismissed.  

    Quentella Batiste was shopping with her granddaughter at Vernon’s Supermarket in Lutcher, Louisiana. Batiste slipped and fell in a puddle of water in the beer and beverage aisle as she was headed to check out at the front of the store. She injured her shoulder, which required surgery. Batiste and her husband filed a lawsuit against Vernon’s Supermarket and its insurer.

    Vernon’s Supermarket filed a summary judgment motion, arguing the Batistes could not prove Vernon’s Supermarket created or actual or constructive knowledge of the hazardous condition of the purported water on the floor, as required under the Louisiana Merchant Liability Statute, La. R.S. 9:2800.6. Vernon’s Supermarket provided deposition testimony where Baptiste said she did not know where the substance she slipped on came from, how long it had been there, or whether anyone at the store knew the substance was present before she fell. They also provided surveillance footage and testimony from several employees to support Vernon Supermarket’s claim no one knew about the substance before Batiste’s fall. 

    The Batistes argued the store had constructive notice because they had not performed a floor check the hour before the accident, which violated the store’s policies and showed they had not exercised reasonable care. The trial court granted Vernon Supermarket’s summary judgment motion. The Batistes appealed. 

    An appellate court reviews a trial court’s ruling on summary judgment motions de novo, which means it uses the same criteria as a trial court. Summary judgment is appropriate when there are no genuine issues of material fact. See La. C.C.P. 966.

    Under La. R.S. 9:2800.6, the plaintiff (here the Batistes) has the burden to prove there was a condition with an unreasonable risk of harm that was reasonably foreseeable; the merchant created or had actual or constructive notice of the condition, and the merchant failed to exercise reasonable care. Here, the Batistes did not provide any positive evidence that Vernon’s Supermarket knew about the condition for a period of time before the accident.

    Further, store employees testified they had not seen a wet substance on the floor. In her deposition, Batiste did not provide evidence in support and testified she did not know specifics about the substance or how long it had been there. Although the Batistes claimed the store’s failure to complete a floor check put it on notice, the appellate court found this insufficient to satisfy the Batiste’s burden of proof. Therefore, the appellate court affirmed the trial court’s grant of Vernon’s Supermarket’s summary judgment motion.

    When pursuing a slip-and-fall claim against a store, it’s essential to understand the burden of proof imposed by Louisiana law. Demonstrating that the store had actual or constructive knowledge of the hazardous condition is crucial to a successful claim. Consulting with a knowledgeable lawyer can help you gather evidence to strengthen your case. 

    Additional Sources: Quentella Batiste and Hayward Batiste v. United Fire and Casualty Company, Veron’s Supermarket LLC and Greg Vernon

    Additional Berniard Law Firm Article on Constructive Notice: Slip-and-fall Lawsuit Dismissed for Lack of Actual or Constructive Notice

  • No Legal Malpractice Where Underlying Medical Malpractice Claim Was Meritless

    When considering a legal malpractice claim, it is crucial to understand that proving your attorneys’ negligence alone is insufficient. To establish the merit of such a claim, you must demonstrate an underlying loss resulting from their negligence. This requires presenting compelling evidence that your original claim would have been successful had your attorneys not been negligent. The case of Shawn Cupit, who pursued a wrongful death lawsuit, highlights the significance of providing admissible evidence and the challenges involved in proving a legal malpractice case.

    Shawn Cupit hired Joseph Moffett, a lawyer in Mississippi, to represent him in a wrongful death lawsuit involving the death of his mother. His mother had been a patient at a rehabilitation hospital in Concordia Parish, Louisiana, because of injuries related to a burned foot. One night, she climbed out a window at the rehabilitation hospital and was hit and killed by a drunk driver. They filed a lawsuit against the drunk driver, his insurer, and the rehabilitation hospital. They claimed the rehabilitation hospital had been negligent in observing their patient and did not provide a safe prejudice.  

    Moffett retained Roger Burgess and Baggett McCall as local counsel in Louisiana. Burgess submitted a request for a Medical Review Panel under La. R.S. 40:1231.8. The Medical Review Panel found the rehabilitation hospital had not failed to comply with the required standard of care. Burgess and McCall also retained expert witnesses, but the expert’s medical opinion letter concluded there was no evidence of the rehabilitation hospital committing medical malpractice. 

    Cupit filed a legal malpractice lawsuit against Burgess and McCall (the “Defendants”). The Defendants filed a summary judgment motion, which Moffett and his insurer joined, claiming Cupit could not prove he would have succeeded in his underlying medical malpractice claim. In support of their summary judgment motion, Defendants attached Cupit’s discovery responses, which indicated he had not retained a medical expert in his medical malpractice case to establish the required standard of care. 

    Cupit countered the negligence was so obvious that no expert testimony was needed to establish the required standard of care. He also included an affidavit from a nurse who said the rehabilitation hospital should have installed a bed or chair alarm in Cupit’s mother’s room. The trial court held that this affidavit was deficient because the nurse was not qualified as an expert and did not address causation. Therefore, the trial court granted the Defendants’ summary judgment motion. Cupit appealed.

    On appeal, Cupit argued the medical opinion letter Defendants provided in support of their summary judgment motion was impermissible under La. C.C.P. 966(A)(4) because it was unsworn and hearsay. The appellate court disagreed, explaining that Burgess had attached the opinion letter to an affidavit, where he stated the affidavit’s contents were within his personal knowledge. Further, the expert was unavailable for testimony as he had passed away. 

    Cupit also argued the trial court erred in not holding a hearing related to the nurse’s affidavit and finding she was not qualified to provide expert opinion and not finding the affidavit created genuine issues of material fact. Again, the appellate court disagreed. The appellate court explained a trial court is not required to determine whether an expert’s testimony is permissible before ruling on a summary judgment motion. The evidence did not indicate the nurse had applicable training, experience, or education to render opinions in this case. 

    In his medical malpractice case, Cupit was required to prove the hospital had a duty to protect the patient from the at-issue risk. Here, Cupit was injured by a drunk driver. Nothing in the affidavit addressed the required causation element linking the hospital’s duty to Cupit’s mother’s injury. The appellate court also disagreed this was a case where there was obvious negligence and causation. Because of the shortcomings in Cupit’s underlying medical malpractice case, Cupit could not prove he had suffered a loss due to his attorneys’ actions. Therefore, the appellate court agreed summary judgment was appropriate because there were no genuine issues of material fact.

    This case illustrates the importance of understanding what evidence is permissible, especially concerning expert witnesses. A good attorney can help you prepare the required evidence and advise on what evidence is admissible to support your claim. This is especially true in cases involving legal malpractice claims, where you also have to show you suffered a loss from having a viable underlying claim that your attorneys adversely affected. 

    Additional Sources: Shawn M. Cupit, Individually and o/b/o James D. Cupit (Deceased) v. Twin City Fire Ins. Co., et al.

    Additional Berniard Law Firm Article on Legal Malpractice: Meritless Claim for Legal Malpractice Highlights Plaintiff’s Own Negligence