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Category: Negligence Claims

  • A Slippery Case: How a Lease Agreement Swayed a Personal Injury Lawsuit Against a Medical Facility

    Imagine attending a routine medical appointment at your local doctor’s office. You enter the premises expecting a standard check-up, but unexpectedly, you trip over a defective threshold and fall onto a hard terrazzo floor. This unsettling scenario is precisely what Lois J. Tate encountered in their accident, sparking a personal injury action against Touro Infirmary and Louisiana Children’s Medical Center. The Louisiana Fourth Circuit Court of Appeal affirmed the Trial Court’s decision to grant summary judgment in favor of the defendants, Touro Infirmary, and Louisiana Children’s Medical Center.

    In a life-altering event, Tate tripped over what she claimed to be a defective threshold at the office of Dr. Shelton Barnes. The office was located in a building leased from Touro Infirmary. This unexpected fall led to injuries, which prompted Tate to file a lawsuit for damages based on negligence and strict liability against the defendants, including Touro Infirmary, Louisiana Children’s Medical Center, and Dr. Shelton Barnes. Tate’s claim encountered a significant challenge when the Trial Court granted summary judgment favoring the defendants. Tate could not prove a crucial element of her claim—Touro’s knowledge of the alleged defect. Undeterred, Tate appealed the decision.

    Under Louisiana law, a summary judgment is applied when there’s no genuine dispute regarding a critical fact that could influence the relief a litigant seeks. To successfully contest a summary judgment, a plaintiff cannot only rely on allegations or speculation. They must present substantial proof of a genuine issue of material fact. For Tate, this involved demonstrating Touro’s awareness of the defect. Simon v. Hillensbeck.

    Touro Infirmary and Dr. Barnes, the tenant, had entered a lease agreement, which explicitly stated Barnes accepted the premises “as is” with any defects. Additionally, Barnes would bear all responsibility for incidents resulting from alleged defects. This is permitted under Louisiana law as it supports the contractual shift of responsibility from the owner to the lessee, as long as the owner didn’t know or hadn’t been notified of the defect. LA Rev Stat § 9:3221.

    Legally, Touro Infirmary transferred any maintenance duty for the premises to Barnes through the lease agreement. No evidence indicated Touro knew of the alleged defect before Tate’s unfortunate accident. Consequently, the Court of Appeals ruled Touro was entitled to judgment as a matter of law, and the Trial Court’s decision was upheld.

    This case highlights the importance of understanding the fine details of lease agreements. It emphasizes the plaintiff’s need to substantiate all components of a claim when alleging negligence and strict liability. Good lawyers and attorneys comprehend these intricacies, making them excellent counsel and representation for their clients in complex personal injury lawsuits. The Court of Appeal reinforced the legal principle that a plaintiff must substantiate all aspects of her claim to prevail. 

    Overall, the case underscores the complexities of determining fault in personal injury cases. It serves as a stark reminder for all parties to be acutely aware of the agreements they enter. Likewise, it stresses the importance of retaining advice from experienced legal attorneys when navigating such complex scenarios.

    Additional Sources: Tate v. Touro Infirmary, Et Al

    Written by Brian Nguyen

    Additional Berniard Law Firm Article on Lease Agreement Issues: The High Cost of Overlooking Fine Print: A Cautionary Tale of Settlements and Release Forms

  • Pre-Trial Notice Did Not Waive Party’s Right to Jury Trial

    If you are involved with a lawsuit, you probably imagine your day in court involving a jury listening to the evidence and rendering a decision. After all, the US Constitution protects our right to a trial by jury. But what happens if the court issues a notice scheduling your trial to be heard in front of a judge instead of a jury? 

    Leigh Ann Schell and McGready Richeson (“Plaintiffs”) filed a lawsuit against Kuchler Polk Weiner LLC (“Kuchler”). Kuchler filed an answer and included a jury demand. Kuchler also paid the applicable filing fee. The trial court then held a pre-trial conference where it selected a trial date. At the conference, both parties’ attorneys and the trial judge signed a pre-trial notice that included the trial date for a trial to be held in front of a judge. 

    Later, Kuchler’s attorneys noticed the alleged error of setting the trial before a judge, not a jury. Kuchler filed a Motion to Continue, arguing it had not waived its right to a jury trial and had not authorized its attorneys to waive that right on its behalf. As evidence, Kuchler introduced an affidavit from its managing partner and authorized representative stating Kuchler had never authorized anyone to waive its right to a trial by jury. The trial court denied the motion, and Kuchler appealed.

    Under La. C.C.P. art. 1733(B), there are two steps for a party to obtain a trial by jury: (1) file a pleading demand a trial by jury, and (2) posting bond as required under La C.C.P. 1734. On appeal, the court considered whether the trial court erred in finding Kuchler waived its right to a trial by jury when its attorney signed the pre-trial notice. 

    The appellate court explained when a party proves his attorney acted without authority; they have not waived their right to a jury trial. See Revel v. Telecheck Louisiana. Here, Kuchler provided an uncontested affidavit from its managing partner and authorized representative and established it never consented to its attorney waiving its right to a jury trial. Kuchler had also previously requested a jury trial, so the pre-trial notice could not supersede that timely request where Kuchler had not authorized its lawyers to waive its right to a trial by jury. 

    The appellate court also rejected Plaintiff’s argument that it would be prejudiced by moving the trial to a jury trial. The appellate court explained its ruling did not change the trial date. Further, Plaintiff’s argument did not supersede Kuchler’s right to a trial by jury. Therefore, the appellate court reversed the trial court’s denial of Kuchler’s motion to have a jury trial.  

    This case illustrates the importance of clearly communicating with your legal counsel to ensure the course of action you want to pursue in your lawsuit is clear. If you think your right to a jury trial might have been improperly waived, a good lawyer can help advise you on potential remedial actions. 

    Additional Sources: Leigh Ann Schell and McGredy L.  Richeson v. Kuchler Polk Schell Weiner & Richeson, LLC

    Written By a Berniard Law Firm Writer

    Additional Berniard Law Firm Article on the Right to a Jury Trial: The Right to a Jury Trial in Louisiana is Very Hard to Deny

  • Legal Boundaries and the Scope of Employment: Vicarious Liability Challenges in Car Wreck Cases

     

    In the aftermath of a vehicle collision, the impact reverberates beyond the immediate parties involved, leaving a trail of injuries and legal complexities. Such was the case for Cody Johnson, a passenger on an RTA bus when it collided with another vehicle. Seeking full compensation for her damages, she pursued a vicarious liability claim against the driver’s employer. However, the court’s assessment of the driver’s scope of employment would determine the outcome of her pursuit of justice.

    At 6:00 am, one hour before he was scheduled to be on call, Mr. Molbert was summoned into work by his boss. Molbert worked for Anesthesia Consultants of the South, LLC, and that morning ACS needed Molbert to help perform an appendectomy. At 6:30 am, 15 minutes sooner than usual, Molbert collided with an RTA bus on the way to the hospital. Ms. Johnson, a passenger on the bus, sued Molbert, ACS, and RTA to recover damages for her injuries. 

    ACS filed for a directed verdict, arguing that Molbert was not within his scope of employment at the time of the accident. This kind of argument is typically referred to as a vicarious liability argument. The trial court granted the motion, finding that ACS was not liable as an employer because Molbert was commuting to work at the time of the accident. The trial court relied on the seven Mclin v. Industrial Specialty Contractors, Inc. factors to make this determination. 

    On appeal, the Fourth Circuit Court of Appeals looked to La. C.C. art. 2320 for guidance on the issue of vicarious liability. Employers are liable in Louisiana through vicarious liability “for a tort committed by his employee (servant) if, at the time, the servant is acting within the scope of his employment— acting, as our Civil Code Article 2320 phrases it, ‘in the exercise of the functions in which . . . employed.’” LeBrane v. Lewis. Furthermore, employers can be held accountable for the negligent acts of employees “when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer’s business.” Orgeron v. McDonald.  Ultimately, the course and scope of employment determination is extremely fact specific to every case.

    The Fourth Circuit Court of Appeals determined that the most relevant rule from Orgeron was the “coming and going” rule. This rule holds an employee commuting to and from work is generally outside the course and scope of employment. Johnson relied upon this exception to make her appeal. 

    To make her case, Johnson argued that (1) the coming and going rule was inapplicable because Molbert was responding to an emergency and (2) that the special mission exception applies in this case. Johnson primarily relied on Matlock v. Hankel, a case in which a firefighter was responding to an emergency. The Court in Matlock held that the firefighter’s actions fell within his course and scope of employment because he was responding to an emergency. The underlying rationale in Matlock held that firefighters are ‘at work’ when responding to emergencies, not commuting to work. 

    The Fourth Circuit Court of Appeals did not find Johnson’s analogy to Matlock convincing. This determination primarily stemmed from the lack of urgency in Molbert’s commute. While Molbert perceived heightened urgency, the Fourth Circuit held that this perception was unfounded because he was neither on call nor had any time constraints on his commute to work. Thus, the special mission exception did not apply to the facts of this case, and the Fourth Circuit affirmed the trial court’s directed verdict. 

    While vicarious liability claims can provide a promising avenue for seeking compensation in the aftermath of accidents, the legal boundaries of the scope of employment can present significant challenges. Ms. Johnson’s pursuit of vicarious liability against the driver’s employer highlights the nuanced nature of such claims. Seeking the guidance of skilled attorneys remains crucial in navigating the complexities of vicarious liability and securing just outcomes for the injured parties involved.

    Additional Sources: Johnson v. Molbert 

    Written by Berniard Law Firm Writer Riley Calouette

    Additional Berniard Law Firm Article on Vicarious Liability: Bienville Parish Auto Accident Raises Question of Vicarious Liability

  • Hurricane Katrina Victim Finds Favor in the Louisiana Courts

    Hurricanes do not discriminate. Regardless of age, wealth, gender, health, or race, hurricanes are merciless to all they come in contact with. Such was the case for Ms. Taylor, who experienced the wrath of Hurricane Katrina in 2005. 

    Ms. Taylor had been in the care of Touro Infirmary when Hurricane Katrina struck the state of Louisiana in 2005. Taylor was 82 and had undergone radiation therapy for her lung cancer three days before Hurricane Katrina’s landfall. After radiation, Taylor complained of nausea and vomiting. Staff diagnosed her with hematemesis, nausea, vomiting, dehydration, digoxin toxicity, COPD, and lung cancer.

    When Hurricane Katrina struck, the City of New Orleans experienced severe infrastructure damage, expansive power outages, and a lack of clean water. Touro also experienced generator failure, causing the building to become unbearably hot. After 72 hours, it evacuated its patients to UT Southwestern Hospital in Dallas, TX. When the patients arrived, medical staff struggled to care for them because pieces of their medical charts were missing. 

    The morning after arrival at UT Southwestern, Taylor went to a radiological consult, where the medical staff discovered that her lung cancer had metastasized to her brain. UT staff recommended she undergo palliative radiation therapy to the brain. Fifteen days later, Taylor was discharged from UT Southwestern in “guarded” condition and was placed in a hospice facility. Twenty-eight days later, Taylor died at the hospice facility. 

    Taylor was survived by her daughter, Ms. Ainsworth, who filed a timely lawsuit against Touro. Ainsworth alleged that the conditions at Touro during Hurricane Katrina caused or contributed to the injuries Taylor sustained while under its care. The trial court granted summary judgment in favor of Touro and their insurance provider, Healthcare Casualty Insurance Limited. Ainsworth appealed this summary judgment ruling to the Fourth Circuit Court of Appeals. The parties disputed whether expert testimony was required to establish whether the conditions created by Touro contributed to or caused the death of Taylor. 

    On appeal, the Fourth Circuit used the de novo standard of review. Klutz v. New  Orleans Pub. Facility Mgmt., Inc. The court also applied  La. C.C.P. art. 966(A)(3), which required the court to give“opportunity for adequate discovery.” Once this opportunity for adequate discovery is given, “a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). 

    The Fourth Circuit Court of Appeals reversed the trial court’s summary judgment ruling because it found that expert testimony was necessary to determine whether Touro contributed to or caused the death of Taylor. Since Ainsworth had not yet had an opportunity to obtain an expert, the case was remanded back to the trial court. The Fourth Circuit Court of Appeals also noted that the circumstances surrounding Hurricane Katrina and its aftermath should be considered when determining whether a party has been given an opportunity for adequate discovery. 

    Hurricane recovery is difficult enough without adding in the loss of a loved one. Attorneys can help pick up the pieces by holding others accountable for their actions and ensuring you get what you deserve. 

    Additional Sources: Ainsworth, on behalf of Taylor v. American Home Ins. Co., Healthcare Casualty Ins. Ltd., and Touro Infirmary 

    Written by Berniard Law Firm Writer Riley Calouette

    Additional Berniard Law Firm Article on Expert Testimony: Tragic Loss: Lawsuit Highlights the Importance of Expert Testimony in Medical Malpractice Cases

  • Can a Witness to an Accident Seek Damages in Court?

    Have you ever witnessed an accident? The experience can be overwhelming, leaving lasting, often overlooked emotional scars. Such consequences raise an essential question; can a witness to an accident seek damages in court? The subsequent lawsuit helps answer that question. The journey of the litigants through the intricate legal landscape reveals their unwavering determination to find solace for the emotional anguish they endured as witnesses to the tragic events.

    The story begins on a fateful day when Briana Davis and her boyfriend, Reginald Hilliard, Jr., embarked on an aerial tour of the City of New Orleans. Unfortunately, the flight ended tragically as the plane, piloted by James Biondo, crashed into Lake Pontchartrain, resulting in the death of Reginald Hilliard, Jr. In the aftermath, Dorothy Jarvis, Tukeya Jarvis, and Thomas Hilliard (Jarvis and Hillard), relatives of the deceased, arrived at the crash scene and witnessed the recovery operations.

    In their lawsuit, Jarvis and Hillard claimed that James Biondo’s negligence, specifically his failure to properly inspect, operate, pilot, navigate, and prevent the airplane crash, was the direct cause of the tragedy. Furthermore, they sought bystander damages under Louisiana C.C. art. 2315.6, asserting they suffered severe mental anguish and emotional distress due to witnessing the crash and its aftermath.

    Louisiana C.C. art. 2315.6 establishes the criteria for recovering bystander damages. To succeed, a plaintiff must demonstrate the following elements: (1) witnessing the event causing injury or arriving at the scene soon after, (2) the direct victim suffering harm that would reasonably cause serious mental anguish to the plaintiff, (3) the emotional distress being both serious and reasonably foreseeable, and (4) the existence of the requisite familial relationship between the plaintiff and the direct victim. Additionally, the plaintiff must have contemporaneously been aware the event caused harm to the victim. 

    Jarvis and Hillard’s lawsuit was met with an exception filing, in which the defendant argued that they had no cause of action. This means that the defendants argued their lawsuit was defective and, therefore, were not legally entitled to relief under the law. A hearing occurred, and the trial court agreed with the Defendant’s position. Unhappy with the ruling, Jarvis and Hillard appealed. 

    The appellate court reviewed Jarvis and Hillard’s claims. They considered only the facts presented in their petition, finding that it did not adequately establish a cause of action for bystander damages. The court emphasized the lack of information about Jarvis and Hillard’s awareness of the deceased’s condition during and after the crash, which is vital for determining the foreseeability of severe emotional distress.

    However, the court recognized that the deficiencies in the petition could be remedied through amendment. Louisiana C.C.P. art. 934, which allows for amendment when the grounds for an objection can be resolved, the court vacated the district court’s judgment and remanded the case. This decision permitted Jarvis and Hillard to amend their petition for damages within sixty days.

    The legal journey surrounding the tragic airplane crash took a hopeful turn as the Appellants were granted the opportunity to amend their petition for bystander damages. Though their initial attempt fell short, the court recognized the need for crucial factual details about their awareness of the crash’s aftermath. This decision opens a new chapter, illustrating the Appellants’ resilience and determination in their quest for justice and closure, and hope for other future Appellants who may want to amend their petition for bystander damages. With a chance to rewrite their story, they move forward, embodying the unwavering pursuit of accountability and solace in the face of immense loss.

    Additional Source: KHIRY COSEY ON BEHALF OF HER MINOR CHILDREN, ET. AL., FLIGHT ACADEMY OF NEW ORLEANS, ET. AL.

    Written by Berniard Law Firm Blog Writer: Juliana Greco

    Other Berniard Articles on Bystander Recovery: Understanding the Law: Bystander Recovery After Tragedy Strikes

  • Procedural Pitfalls: The Consequences of Neglecting Administrative Remedies in Personal Injury Claims

    A personal injury claim requires following specific rules and procedures to ensure a fair and just resolution. For Joseph Barlow, who slipped and fell while detained at the Lafayette Correctional Facility, his failure to adhere to the correction center’s administrative remedies became critical. This article examines the consequences Barlow faced when he disregarded the proper procedures and highlights the significance of following the established protocols.

    Joseph Barlow was detained at the Lafayette Correctional Facility, where he slipped and fell in a puddle of water on two different occasions. Barlow claims an open pipe allowed water to overflow onto the floor. He filed a lawsuit against the Director of Corrections for Lafayette Parish, the Sheriff of Lafayette Parish, and the insurance company for injuries sustained to his neck and back. The defendants filed an exception of prematurity, claiming Barlow did not look at all of the remedies provided by the correction center’s handbook. The defendants also filed an exception of prescription and abandonment. A trial court sustained all of the defendants’ motions, and Barlow’s claims were dismissed. Barlow appealed.

    In the appeal, Barlow claimed the trial court erred in granting the exception of prematurity. He first argued the handbook did not mention the procedures for injury claims resulting from negligence. He then argued the defendants had notice of the danger from the pipe. Lastly, Barlow claimed he did not receive an up-to-date handbook and was not informed of its alterations.

    According to Louisiana law, a sheriff can enact administrative remedies which provide procedures for resolving complaints and grievances, including those relating to personal injuries. Barlow alleged he was given the handbook on March 23, 2015, and informed about the grievance process the next day. Barlow received the 2012 version of the handbook, as the next revision of the handbook was released in September 2015. The 2012 version was still in place when Barlow suffered his injuries. The court looked at the language in the handbook, which stated a grievance must concern some misconduct by a deputy. Those filing a grievance must attempt to resolve it with the deputy. If the attempt is rendered futile, the individual must submit a grievance form within thirty days of the incident. 

    Barlow argued the grievance procedure did not provide instructions for injury claims. The defendants argued the handbook’s language, which stated the grievance must concern the facility’s operational duties, was enough to cover Barlow’s personal injury claims. The court found the handbook’s procedures did apply to complaints about the operations at the correctional facility, including those asserted by Barlow. The court further stated the administrative remedy was sufficient to allow Barlow to state his claim. The court noted Barlow never took advantage of the administrative process, as he did not file a grievance form in the first place. He did follow the procedure for another incident, which was evidence he was aware of the existing procedures. 

    Barlow also argued there was notice of his claim because both of his falls were witnessed by deputies who then took him to the nurse. The defendants contended there was no showing of evidence to prove a deputy took Barlow to the nurse, where they took down his statement. The court agreed with the defendants. Lastly, the defendants claimed Barlow attempted to disrupt the administrative process by informing the warden instead of the Administrative Remedy Process Officer. Again, The court agreed Barlow should have followed the proper procedure to document his complaint. The court affirmed the trial court’s decision to grant the defendants’ prematurity exception and prescription and abandonment exception. 

    Joseph Barlow’s case is a cautionary tale, underscoring the importance of diligently adhering to administrative procedures before pursuing a personal injury claim. This case emphasizes the role of competent legal representation in guiding individuals through the intricacies of personal injury claims and ensuring that all necessary steps are taken before resorting to legal action. By understanding and adhering to the established procedures, individuals can strengthen their position and maximize their chances of obtaining a favorable outcome in their personal injury cases.

    Additional Sources: JOSEPH BARLOW versus MARK GARBER

    Written by Berniard Law Firm Blog Writer: Gabriela Chilingarova

    Other Berniard Law Firm Articles on Slip and Fall Lawsuits in Jail: Who Is Responsible If I Was Injured in Jail Due to Unsafe Conditions?

  • Can a parent recover when their child is injured on a school field trip?

    School field trips are supposed to be fun. However, after an unfortunate incident, Darius Baheth’s experience was less than idyllic. Can a parent recover when their child is injured on a school field trip? The following lawsuit, out of Lafayette, Louisiana, answers that question.

    When Darius was thirteen years old, he was allegedly injured while attending a school field trip to a movie theater in Lafayette, Louisiana. Darius had an Individualized Education Plan (“IEP”) because he had autism. While the teachers and students were leaving the bus to go across the street to the movie theater, Darius started running around. Some teachers placed restraints on him to prevent him from hurting himself or others. He then received medication and was able to participate in the field trip. 

    His mother, Dorothy Baheth, filed a lawsuit against the Lafayette Parish School Board for the injuries Darius purportedly suffered on the field trip. She argued the injuries happened when the teachers placed restraining gear on Darius. She also claimed the teachers did not timely administer Darius’ medication. 

    The School Board filed a summary judgment motion, arguing it was immune from the lawsuit under the Education Opportunities for Students with Exceptionalities statute, La. R.S. 17:1941-1947. Under this law, schools and their employees are only liable for damage to individuals when they act intentionally or with gross negligence. The School Board also argued it had not breached its duty and Darius had not been injured on the field trip. The trial court granted the School Board’s summary judgment motion. Baheth appealed.

    On appeal, the court reviews the trial court’s ruling on a summary judgment motion de novo, which means it uses the same criteria as the trial court used. Summary judgment is appropriate if there are no genuine issues of material fact. See La. C.C.P. art. 966. Baheth claimed the trial court erred in granting the School Board’s summary judgment motion because of multiple material factual disputes. The School Board argued Baheth did not show or allege that it, or any of the employees or other representatives, acted with intent to harm Darius or with gross negligence.  

    The appellate court explained that even if the Board had breached a duty and was not immune under the Education Opportunities for Students with Exceptionalities, Baheth had not provided sufficient evidence to prove damage Darius had suffered any damage. Specifically, the medical records provided did not support a finding that the incident on the school field trip caused Darius’ injuries. Further, much of the medical history was only provided by his mother and was not objective. Objective evidence such as the CT scan and MRI did not establish a connection between the incident on the school field trip and Darius’ purported injuries. Therefore, the appellate court affirmed the trial court’s grant of the School Board’s summary judgment motion. 

    This case highlights the challenges parents face when seeking accountability for their child’s injuries on a school field trip. Despite the alleged negligence and breach of duty, the appellate court’s affirmation of the trial court’s grant of summary judgment to the Lafayette Parish School Board demonstrates the importance of presenting compelling and objective evidence to establish a connection between the incident and the injuries sustained. If your child has suffered harm at school, it is crucial to consult with a skilled attorney who can help you navigate the legal landscape and gather the necessary evidence to support your claim. While the path to justice may be complex, diligent legal representation can provide invaluable guidance and support in pursuing a fair resolution for your child’s well-being.

    Additional Sources: Dorothy Baheth, et al., v. Lafayette Parish School System, et al.

    Article Written By Berniard Law Firm 

    Additional Berniard Law Firm Article on School Accidents: Baton Rouge Parent Denied Compensation Resulting from Son Abandoned on School Bus

  • False Arrest, Wrongful Imprisonment, and the Deadline to Seek Legal Recourse

    In a society built upon the principles of justice and fairness, few experiences can be as devastating as being wrongfully accused of a crime, subsequently arrested, and imprisoned for a wrongdoing one did not commit. The ramifications of such a traumatic ordeal can be profound, leaving individuals grappling with profound emotional, psychological, and even physical consequences. In the face of such injustice, victims must be allowed to seek justice and hold accountable those responsible for their unwarranted suffering. 

    This article delves into the harrowing reality of false arrest and wrongful imprisonment, highlighting the importance of legal recourse and the pivotal role of experienced attorneys in navigating the complex legal landscape to secure redress and restore the shattered lives of the innocent.

    On May 4, 2015, Marlon Eaglin and Paul Powell were falsely accused of participating in an alleged shooting by two other suspects and were then arrested on attempted murder charges. The two were held in prison until August 21, 2015. On April 29, 2016, Eaglin filed a lawsuit seeking damages against the Eunice Police Department, the Chief of Police, Chief Randy Fontenot, and the City of Eunice, claiming he was falsely arrested and imprisoned by Eunice Police.

    Eaglin then tried to amend his original petition on May 9, 2016, to add Powell as another plaintiff, making the same claims. This led the defendants to file an exception of prescription, alleging Powell’s claims, based on when the amended petition was filed, had reached the limitation period just before, on May 4, 2016, one-year post-arrest. However, Powell disagreed, contending the period of prescription began once he was released from false imprisonment. The lower court ruled for the defendants and dismissed Powell’s claims, finding the prescription had started to run on the date of arrest. Powell appealed the decision.

    In examining whether the period of prescription for a false imprisonment claim began to accrue on the date of the plaintiffs’ arrest or date of release, the Louisiana Court of Appeal Third Circuit first looked to the nature of the plaintiffs’ action, explaining that actions where damages have resulted, are subject to a prescription of one year. This period begins the day the damage or injury occurs. 

    Based on prior decisions regarding this issue of prescription periods, the Third Circuit states how claims of false arrest and false imprisonment are usually treated as a single claim. Therefore, prescription does not start until the imprisonment ends and the victim is released since the person is unlikely to sue while behind bars. Wallace v. Kato. The Third Circuit thus reversed the lower court’s ruling on this issue, finding that prescription starts on the date the individual is released from imprisonment for a false imprisonment claim. In this case, the prescription period did not end until August 21, 2016. 

    Being falsely arrested and imprisoned for a crime one did not commit is an immensely terrifying and traumatizing experience. In such circumstances, it is crucial to engage the services of a competent attorney who can help victims hold the responsible parties accountable and ensure they receive appropriate damages within the permissible timeframe. Moreover, by advocating for their rights through legal channels, individuals can seek justice and alleviate the adverse consequences of wrongful arrest and imprisonment.

    Additional Sources: Marlon Eaglin v. Eunice Police Department, et al.

    Written by Berniard Law Firm Blog Writer: Kate Letkewicz

    Additional Berniard Law Firm Articles Involving Law Enforcement: New Orleans police officer’s disciplinary violation is reversed; Leaking Hole in Jail Cell, Can you File a Lawsuit for Cruel and Unusual Punishment?

  • The Duty of a Seller to Deliver a Defect-Free Item: A Case of Negligence

    When an item is repaired, it is reasonable to expect it to be safe and free of defects upon its return. However, when an injury occurs after a product’s repair, the injured party is entitled to seek damages. For example, Joe McPherson suffered a knee injury after the battery compartment of a tractor, which Ronald Dauzat repaired, fell apart. The question of negligence and responsibility arose, leading to a legal dispute and subsequent appeal.

    Dauzat sold his old tractor to McPherson. However, it did not function properly, so Dauzat took it in for repairs. Dauzat notified McPherson the tractor was ready to be picked up. When McPherson arrived at the shop, Dauzat was not there. But two men he assumed were employees permitted him to mount and inspect the tractor. When McPherson tried to demount, the battery compartment fell apart, and he fell and wounded his knee

    McPherson filed a lawsuit against Dauzat for his injury. His complaint alleged the defective tractor caused his injuries. He stated that his injury would have been prevented if the battery box had been firmly latched. Dauzat filed an involuntary dismissal and claimed McPherson failed to present evidence that the unlatched box was the cause of his fall. 

    At trial, the court found McPherson failed to prove the two men in the store were Dauzat’s employees. Thus, McPherson was not vicariously liable. The trial court granted the involuntary dismissal in conformity with La. C.C.P. art. 1672 which states, “A voluntary dismissal can be obtained if the plaintiff shows no right to relief.”  McPherson appealed.

    On appeal, McPherson asserted several assignments of error relating to affirmative defenses, vicarious liability, res ipsa loquitor, involuntary dismissal, and the evidence given. First, McPherson claimed damages under La. C.C.P. art. 2317.1 states: the owner or caretaker of a thing is responsible for the damage caused by its ruin if he failed to use reasonable care. To succeed in a case under La. C.C.P. art. 2317.1, McPherson must show: (1) Dauzat was in the custody of the tractor; (2) the tractor was flawed; (3) Dauzat had knowledge of the defect; (4) the injury was avoidable; and (5) Dauzat failed to use reasonable care. 

    Dauzat replied and testified his shop was closed and empty on the day of the accident. Nonetheless, the trial court found this to be false. Since Dauzat did not challenge that McPherson failed to show the man who permitted him to get on the tractor was his employee for his involuntary dismissal, the court found that Dauzat’s employee gave  McPherson approval.

    Dauzat further argued that McPherson did not produce evidence of the relationship between the unlatched battery compartment to his injuries. McPherson explained he removed the battery compartment when the tractor was not functioning. Therefore, Dauzat would have had to put it back when making repairs. Consequently, he was the last person to be in contact with the compartment. The evidence proved there was a correlation between the latch being unhinged and the plausibility of an injury. Dauzat failed to exercise reasonable care when he returned the tractor to McPherson without ensuring it was safe.

    In this case, the court examined the duty of a seller to deliver a defect-free item. McPherson claimed that the unlatched battery compartment caused his fall and subsequent injury, asserting negligence on the part of Dauzat. The trial court initially dismissed the case, but on appeal, the appeal court found that McPherson had proven negligence. The court emphasized the importance of sellers exercising reasonable care and delivering items that are safe for use. This case serves as a reminder of the sellers’ duty to provide defect-free products and the legal recourse available to injured parties when this duty is breached.

    Additional Sources: JOE MCPHERSON VERSUS RONALD DAUZAT, D/B/A DAUZAT’S USED EQUIPMENT, ET AL.

    Written by Berniard Law Firm Blog Writer: Needum Lekia

    Other Berniard Law Firm Articles on Defective Products: Absent Vehicle, Absent Negligence: Louisiana Appellate Court Affirms Dismissal of Products Liability Lawsuit

  • Employee-Injury Exclusion Precludes Insurance Coverage For Injured Stunt Performer

    Even if you have a unique job like a stunt performer, you can still get brought down to Earth by the complexities of determining what your insurance policies do and do not cover if you are involved in an insurance coverage dispute. In that case, it is important to understand the plain language of your insurance contract, how different provisions in the policy interact, and how courts interpret insurance policies. 

    Joshua Petrozziello worked as a professional stunt performer at Flypaper Productions. He was injured when a piece of equipment malfunctioned while performing a stunt as part of a movie product. As a result, he filed a lawsuit against Noway, Inc., who had manufactured and operated the equipment, and Employers Fire Insurance Company, who issued Flypaper’s primary and excess general liability policies. 

    The parties settled all claims except Petrozziellos’ lawsuit against the excess liability policy from Employers Fire Insurance Company. That insurance policy had an exclusion for injuries sustained by an “employee of any insured” during and during employment. The Petrozziellos argued that this employee-injury exclusion had to be interpreted harmoniously with the “Separation of Insureds” policy provision. They claimed because Petrozziollo was not an employee of Noway, the exclusion did not apply. The trial court agreed with this argument and granted summary judgment in their favor. 

    Insurance policies should be interpreted like other contracts and the parties’ intent, according to La. C.C. art. 2045. A court cannot interpret an insurance policy in an unreasonable or strained manner. 

    The Court of Appeal First Circuit pointed to the language in the excess liability policy, which stated it did not apply for bodily injuries to an “employee of any insured” occurring during their employment. The appellate court explained this was not ambiguous. The appellate court also rejected Petrozziellos’ argument the “Separation of Insureds” section altered the application of the employee-injury exclusion because their interpretation of that section would lead to unreasonable results. 

    The appellate court also held no explicit language suggesting that it was the only insured under the insurance policy once Noway was sued. This would contradict other provisions in the insurance policy, such as endorsements that addressed the possibility of multiple insureds. For example, the “Cross Suits” provision anticipated potential lawsuits by one insured against another insured, which necessarily requires there to be multiple insured. Therefore, because the phrase “any insured” was clear and explicit on its face, based on the insurance policy’s language, the excess liability policy did not cover the injuries Petrozziello suffered during his employment with Flypaper. As a result, the appellate court held the trial court erred in granting the Petrozziellos’ summary judgment motion. 

    Determining what insurance policies cover and don’t cover requires carefully examining the policy’s language, the interaction between different provisions, and how courts interpret insurance contracts. In Petrozziello’s case, the appellate court emphasized the importance of clear and explicit language in insurance policies, ultimately ruling in favor of the insurance company based on employee-injury exclusion. 

    This ruling by the court highlights the need for individuals involved in insurance disputes to thoroughly understand their policy’s terms and seek legal guidance to navigate the complexities of insurance coverage. If you find yourself in a similar situation, consulting with an experienced attorney can help ensure you fully comprehend your rights and the limitations of your insurance policy, enabling you to make informed decisions and protect your interests.

    Additional Sources: Joshua Petrozziello and Jennifer Petrozziello v. Thermadyne Holdings Co., Thermadyne Industries Inc., Victor Equipment Co, Noway, Inc., and Employers Fire Insur. Co.

    Additional Berniard Law Firm Article on Insurance Coverage: Accident While Driving Your Car On The Job: You may not be covered!