gets.primecure.net

Category: Negligence Claims

  • Office of Workers’ Compensation Exceeded Authority By Shortening Prescription Period

    Navigating bureaucracy and red tape is a common experience when dealing with government agencies and trying to obtain workers’ compensation benefits. However, if you find yourself frustrated by what seems like an improper requirement, you might be able to challenge an administrative agency’s actions as exceeding its authority, as Calvin Arrant did here. 

    While working at Wayne Acree PLS, Arrant was involved in an accident where a truck that ran a red light hit his vehicle. Arrant consulted an attorney and then met with an orthopedic surgeon because he started having back pain that went down his legs. The doctor recommended an MRI. 

    His attorney contacted Acree’s workers’ compensation carrier to determine if it would agree to cover the MRI. Twice, Arrant requested approval for the MRI from the medical director under La. R.S. 23:1203.1. Both times, the medical director denied Arrant’s request via fax. 

    Arrant filed a Disputed Claim for Compensation with the Office of Workers’ Compensation (“OWC”) to review the medical director’s denial of his request for the MRI. Wayne Acree and its workers’ compensation carrier filed an exception of prescription, claiming Arrant failed to appeal the decision within 15 calendar days of receiving the denial from the medical director. The OWC ruled in favor of Wayne Acree, finding that Arrant had not timely filed his appeal within the required 15 calendar days (called the prescription period). The Louisiana Second Circuit Court of Appeal affirmed the decision in favor of the defendants. Still seeking to remedy the problem, Arrant appealed to the Louisiana Supreme Court.

    The Louisiana Supreme Court considered whether the medical director exceeded the authority the Louisiana Legislature delegated to it by creating a 15 calendar day period for an injured worker to appeal the denial of a request for medical treatment. The Court first considered whether the statute that created the OWC (La. R.S. 23:1291) provided the medical director with authority to implement a 15 calendar day period for an injured worker to appeal a medical director’s finding. The statute did not explicitly provide this authority. 

    The Court explained the Louisiana Legislature has the authority to establish time limits for someone to bring a legal claim. See La. C.C. art. 3457. Under La. R.S. 23:1203.1, the OWC has statutory authority to create rules to provide the standard medical treatment for injured workers and a process for an injured worker to request different treatment and appeal a denial of that request. However, the Legislature already created a prescriptive period for bringing claims like Arrant’s related to medical benefits in La. Rev. Stat 23:1209, the OWC did not have the authority to create and enforce a shorter prescriptive period. 

    Therefore, the Louisiana Supreme Court found that the hearing officer erred in sustaining the defendants’ peremptory exception of prescription and remanded for the Office of Workers’ Compensation to evaluate Arrant’s claim that the medical director did not appropriately apply medical treatment guidelines when he denied Arrant’s request for an MRI of his spine. 

    As demonstrated by Arrant’s case, it is possible to challenge administrative agencies that exceed their authority. The Louisiana Supreme Court’s ruling sheds light on the importance of understanding the boundaries of agencies such as the Office of Workers’ Compensation (OWC) and seeking legal counsel to navigate the workers’ compensation scheme effectively. If you are entangled in a similar situation, consulting with an experienced attorney becomes crucial to explore potential remedies and protect your rights.

    Additional Sources: Calvin Arrant v. Wayne Acree PLS, Inc. & Louisiana Workers’ Comp. Corp.

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

  • How Genuine Issues of Material Facts Can Impact a Personal Injury Case

    Personal injury cases are notorious for their intricate nature, often posing challenges in determining fault and establishing liability. Complications escalate further when discrepancies arise regarding the facts surrounding the incident. When blame is uncertain, and parties refuse to accept responsibility, the legal landscape becomes increasingly convoluted. 

    A recent Louisiana Court of Appeals case offered a detailed examination of an issue of material fact in determining fault in a personal injury lawsuit. By exploring the court’s decision and the supporting evidence, we gain insight into the complexities inherent in such cases and their implications on a motion for summary judgment.

    James Palmisano fell at work due to the water in the hallway. Palmisano alleged that the water leaked from the men’s and women’s toilets. He filed a lawsuit for his injuries, claiming two plumbing companies, Prejean and Colville Plumbing & Irrigation, Inc., were called to fix the problem but didn’t. 

    Prejean moved for summary judgment claiming Palmisano could not produce any factual support for his claims. According to Prejean, they owed no duty to Mr. Palmisano because they never worked on the allegedly leaky septic tank. The trial court denied the motion, and they appealed.

    A summary judgment is designed to ensure a quick and efficient adjudication of a case. Summary judgment will be granted if there is no genuine issue to the material fact. Here, Prejean only needed to point out the lack of factual support for one of the essential elements of Palmisano’s case. If Prejean could do that, the burden would shift to Palmisano to prove factual support for all of the elements of his case. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact occurs if a reasonable person could disagree or there could only be one possible conclusion. 

    Under Louisiana Civil Code articles 2315 and 2316, the Palmisano sought damages for injuries he received due to the plumbers’ negligence. Palmisano needed to prove Prejean had to conform to a certain standard of care, they failed to conform to that standard of care, their conduct was a cause-in-fact of the plaintiff’s injury, and there was the legal cause of Palmisano’s injury, as well as actual damages. A repairman owes a duty to third persons if he undertakes a repair and tells the third person that the repair has been made (Pinsonneault v. Merchs. & Farmers Bank & Trust Co.).

    Walter Badeaux, Prejean’s plumber, testified that he did not have the equipment to unstop the main sewage line or pump the septic tank, which appeared to be the problem. He also testified he saw no water on the floor when he walked down the hall. In his affidavit, he claimed he never saw the overflowing toilets because all of his work was done on the septic tank in the back. 

    Palmisano testified that the puddle was clear and covered the width of the hall. He was told a plumber from Colville was working on the septic tank, and another employee told him there was water in the men’s restroom. 

    Ms. Brasseaux, the former administrator at Weatherford, testified that she called two plumbers on the day of the accident. She claimed the Prejean plumber showed up and, after ten minutes, told her there was nothing he could do. Prejean’s dispatch ticket indicated that the tank had been pumped, but Weatherford paid Colville $300 for it to unstop the septic tank and clean out the plug. The trial court stated there is evidence that there was a plumber working at Weatherford on the day of the accident, but there are factual issues that would preclude summary judgment.

    The appeals court decided there were genuine issues of material fact as to whether the Prejean plumber tried to unclog the sewer line on the accident date. The plumber claimed at one point he was at Weatherford for a few minutes, and in his deposition, he claimed he was there for 30-40 minutes. According to Colville’s dispatch tickets, the plumber was busy the day of the accident and did not arrive at Weatherford until the following day. The court found no error in the trial court’s denial decision and denied the supervisory writ application of Prejean and Sons Plumbing, LLC.

    Although a party may not be entirely at fault for an accident, there is not always enough evidence to remove the blame, especially when there are discrepancies. Here, the court decided there were issues of material fact as to whether Prejean was able to fix the plumbing issues Weatherford was dealing with on the day of Plamisano’s accident. Therefore, the motion for summary judgment was denied.

    Additional Sources: James Palmisano, ET AL. v. Colville Plumbing & Irrigation, Inc., ET AL.

    Written by Berniard Law Firm Writer: Alivia Rose

    Additional Berniard Law Firm Article on Personal Injury: A Warning Cone and a Wet Floor, Who Wins in a Slip and Fall Lawsuit?

  • Importance of Timely Filing: A Case Study on False Arrest and False Imprisonment Claims

    Filing a claim in court requires careful consideration of the appropriate time frame, as it can significantly impact the success of a lawsuit. This is particularly crucial when dealing with actions such as false arrest and false imprisonment, where prescription periods play a significant role. 

    In a noteworthy case involving Marlon Eaglin, Powell, Deontrey Moten, and David Little, who were charged with attempted murder, the defendants’ release led to the filing of a petition for false arrest and false imprisonment. However, the defendants raised an exception of prescription, arguing that the claims had exceeded the prescribed time limit. This case is a stark reminder of the importance of understanding and adhering to the applicable time frame when seeking justice in court.

    An attempted murder charge was brought against Marlon Eaglin, Powell, Deontrey Moten, and David Little by the Eunice Police Department. The defendants were arrested on May 4, 2015, and released on August 21, 2015. 

    In April 2016, Mr. Marlon Eaglin filed a petition for false arrest and imprisonment. In May 2016, Mr. Powell added to the lawsuit. The defendants opposed and filed an exception of prescription, which claimed Mr. Powell’s claims had been prescribed a year after his arrest date. The defendant’s exception of prescription was granted because (1) the addition did not relate back to the original petition because there was no legal or familial relationship between the parties and (2) the prescription time for false imprisonment allegedly began on the date of arrest and not on the date of release. 

    According to La. C. C. P. art. 927(B), an exception of prescription must be specifically stated and be proven at trial. If prescription is established, the burden shifts to the plaintiff to show otherwise. The duration of the prescription is dependent on the type of action. Personal actions have a ten-year timeframe. Delictual actions are subject to one year, which begins the day of injury or damage. La. C. C. art. 3492. Mr. Powell argued the trial court erred in finding the prescription on his claim began to accrue on the date of arrest. After thorough research, the court agreed. 

    In De Bouchel v. Koss Const. Co., case, the Louisiana Supreme Court held “a person who suffered false imprisonment was subject to a subject liberative prescription of one year. Employing the De Bouchel holding, the court in Murray v. Town of Mansura found the prescriptive period for a claim of false arrest and imprisonment accrued on the date of release. Thus the Louisiana Supreme Court recognized that the time frame for prescription to accrue for false arrest and false imprisonment is on the day of release. Wallace v. Kato. 

    In common law, the classification of false arrest and false imprisonment intersect. Thus the court refers to the torts together as false imprisonment. The timeframe for false imprisonment is subject to a one-year limitation. Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends. This is likely the case because the tort victim may be unable to sue while still imprisoned. Thus, the prescription on Mr. Powell’s claim for false arrest and imprisonment did not begin until he was released on August 21, 2015. 

    The outcome of the case above underscores the criticality of filing claims within the prescribed time frame. While the defendants successfully utilized the exception of prescription to challenge the addition of Mr. Powell’s claims, the court ultimately recognized the error in determining the accrual date for the prescription period. 

    This ruling reaffirms the legal precedent that false arrest and false imprisonment claims commence upon release and highlights the significance of thorough research and competent legal representation. It serves as a compelling reminder that navigating the intricacies of the legal system requires diligent attention to detail and a comprehensive understanding of relevant laws and precedents. By recognizing the impact of timely filing, individuals can better position themselves for success in their legal endeavors.

    Additional Sources: Marlon Eaglin Versus Eunice Police Department, Et Al

    Written by Berniard Law Firm Blog Writer: Needum Lekia

    Other Berniard Law Firm Articles on Prescription: Prescription Limits Discussed in Case Coming from Baton Rouge Fall

  • Law Firm Not Liable in Legal Malpractice Lawsuit Despite Conflict of Interest

    In some cases, mistakes in following procedure can harm a plaintiff’s cause of action even if the case otherwise may be successful on the merits. For example, legal malpractice cases in Louisiana must be filed within one year from when the plaintiff knew or should have known that malpractice had occurred. A recent case out of the Parish of East Baton Rouge has outlined when a plaintiff is considered to have some notice of legal malpractice. 

    Satterfield & Pontikes (S&P) was a general contractor for the construction of the Lawrence D. Crocker Elementary School in New Orleans, known as the Croker project. The Recovery School District (RSD) owned the property, and Jacobs Project Management Company/CSRS Consortium (Jacobs) acted as the project manager. Norman Chenevert and Chenevert Architects, LLC (Chenevert) and Julien Engineering & Consulting, Inc. (Julien), the sub-consultant structural engineers, created the plans and specifications for the project. In addition, S&P met with Murphy J. Foster, III, a partner at the Breazeale Sachse & Wilson (BSW) law firm, to represent them regarding a previous project S&P worked as a general contractor for. One of the other BSW partners, Steven Loeb, has represented Chenevert previously and had been representing them in connection with the Crocker Project. 

    Professional ethics rules required BSW to advise S&P and Chenevert on the potential for conflict and to receive a written waiver from both clients. The Chief Financial Officer of S&P, Laura Pontikes, signed the waiver. In contrast, Chenevert terminated its client-lawyer relationship with Leob, and its file regarding the Crocker Project was returned to the company. 

    The following year, RSD’s attorney sent S&P a notice alleging that S&P failed to perform the necessary work on the Croker project, such as failing to meet deadlines and causing delays. After receiving the notice, General Counsel for S&P, Dennis Ducran, and Laura Pontikes, asked Foster for assistance with the Crocker project. Foster attended a settlement meeting on behalf of S&P, and the two companies reached a settlement agreement. Foster then advised Laura Pontikes that S&P could sue RSD, Julien, and Chenevert for damages caused by the delay. However, Foster did explain that he could not represent S&P if it decided to sue Chenevert. 

    BSW then represented S&P in a lawsuit against Julien, Julien’s insurer, and then later RSD. Months later, S&P also decided to file a lawsuit against Chenevert. Because of a conflict of interest, Foster recommended S&P retain Shields Mott Lund (SML) to represent them in connection with the Crocker Project. Ducran then notified Foster that S&P had retained SML and requested him to deliver S&P’s client file to Sonny Shields at SML. 

    The following year S&P filed a lawsuit against BSW for legal malpractice. The company alleged that when BSW sent the S&P client file to SML, they also received a copy of an email from the senior project manager at Jacobs, John Haarala, to Norman Chenevert, where Haarla said the associated pricing for the miscellaneous steel scope of work and that was what he had been worried about from the start. Haarala also told Chenevert that this information would be included in an Errors & Omissions claim. Haarala also said that he asked for an order of magnitude from Chenevert and had yet to receive it and reminded him the entire evaluation was Chenevert’s responsibility. 

    S&P argued that while representing the company, BSW withheld evidence that Chenevert, RSD, and Jacobs knew the design plans were incomplete and the reason for the Crocker project delays. S&P also argued that had it had this evidence, it would not have accepted the settlement with RSD. BSW responded by raising a peremption objection, arguing that S&P filed the malpractice over a year after S&P found or should have found the email. The one-year peremptive period for legal malpractice claims is established by La. R.S. 9:5605. The trial court ruled in favor of BSW because it found that S&P should have known the facts leading to the malpractice claim on March 7, 2012, but did not file until July 31, 2014. S&P then appealed the decision.

    Upon review, the court explained that La. R.S.9:5605(A) prescribes a one-year timeline to bring a legal malpractice action. The statute provides a legal malpractice claim must be brought within one year of the date of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect from the lawyer.

    The peremption date runs from the “date of discovery,” which is considered to be when a reasonable person in the plaintiff’s position would have had actual or constructive knowledge of the damage. A plaintiff with information that would place a reasonable person on notice that malpractice had occurred shall be subject to the one-year peremption. Straub v. Richardson. 

    The court noted that when Foster represented S&P during negotiations with RSD, Foster acknowledged that S&P’s case against RSD arose from defective plans and that Chenevert admitted the steel design drawings were in error, and that everyone felt that way. However, Foster also told Laura Pontikes that S&P had a claim against RSD, Julien, and Chenevert but reminded her that his partner had represented Chenevert in connection with the Crocker Project and, therefore, would not be able to represent S&P if it decided to sue Chenevert. Therefore, Laura Pontikes was aware of a real conflict regarding the representation and had constructive knowledge that BSW was withholding evidence of Chenevert’s liability. 

    Overall, the court decided that S&P could not prevail on its legal malpractice action, despite the conflict that arose amid representation for the Crocker Project. S&P could not prevail because it let the one-year peremptive time period to file the action elapse when the company should have known that malpractice occurred. To prevent a legal malpractice claim from being dismissed, the plaintiff should first ensure they file their case within one year of becoming aware of legal malpractice.

    Additional Sources: SATTERFIELD & PONTIKES CONSTRUCTION, INC VERSUS BREAZEALE SACHSE & WILSON, LLP, MURPHY J. FOSTER III, INDIVIDUALLY AND STEVEN B. LOEB, INDIVIDUALLY

    Written by: Berniard Law Firm 

    Other Berniard Law Firm Articles on Peremption in Legal Malpractice Claims: Peremption Prevents Injured Longshoreman from Bringing Legal Malpractice Claim Despite Lack of Notice

  • Louisiana Court Affirms General Damages Awarded to Ascension Parish Woman Injured In Auto Accident

    Although you may be excited if you are awarded damages at trial, your award might still face a challenge on appeal. Therefore, when you are involved in a trial for an accident in which you were harmed, it is important to understand what evidence you need to present so that any money you are awarded can survive a challenge on appeal. 

    While driving a Honda Accord in Ascension Parish, Louisiana, Juliet All was hit by a Chevrolet Silverado Austin Tynes was driving after he did not stop at a stop sign. As a result, All’s vehicle was knocked into a ditch. All received medical treatment at St. Elizabeth Hospital and was diagnosed with chest pain and neck strain. When her pain did not go away, she went to an orthopedic surgeon for treatment, who diagnosed her with whiplash and cervical spine injury, including injury to her soft tissue. 

    All filed a lawsuit against Tynes and Safeco Insurance Company, who insured him. The parties agreed that Tynes was solely responsible for the accident and had insurance coverage from Safeco when the accident occurred. They also stipulated that All’s damages would not exceed $50,000. At trial, All was awarded $66,000 in damages. This was reduced to $50,000 because of the parties’ stipulation. Safeco and Tynes appealed, arguing that the trial court abused its discretion in awarding All $50,000 in general damages because her injuries were minimal and of short duration. 

    The appellate court explained the purpose of general damage is to restore an injured party (here, All) to as close as possible to a position as she was before the injury. On appeal, the appellate court reviews the trial court’s discretion and does not decide upon an appropriate award. See La. C.C. art. 2324.1. 

    On appeal, Tynes and Safeco argued that the trial court ignored the minimal nature of All’s injuries and defaulted to its typical award of $3,000 to $3,500 per month for soft tissue injuries. In addition, they argued that the trial court disregarded that All achieved her goals in physical therapy six weeks after the accident and did not receive any additional medical treatment for another five months, so she did not mitigate her damages.

     In response, All argued that the trial court did not abuse its discretion in awarding her $50,000 in general damages because the evidence showed that she has suffered, and continues to suffer, significant pain and suffering because of the accident caused by Tynes. She pointed to the multiple medications she now has to take as well as the sessions of physical therapy she had to attend. All’s doctor’s deposition also indicated that All continued to suffer from neck pain. All also explained that she stopped treatment for approximately five months because her husband was undergoing cancer treatment, and she did not want to lose her job because of the time required to attend therapy. 

    The appellate court found that the evidence and witness testimony showed that All continued to have pain and suffering as a result of the accident. Additionally, All’s decision to pause physical therapy was reasonable, given her husband’s health issues and concerns about losing her job. Therefore, the appellate court found that the trial court did not abuse its discretion in awarding All $50,000 in general damages. 

    Even if a trial court awards you damages for an accident in which you were harmed, the award may still be challenged on appeal. As shown in the case of Juliet All, it is essential to present strong evidence to support your damages claim and ensure that any award you receive can withstand appeal. This includes providing evidence of the nature and extent of your injuries and any ongoing pain and suffering. A competent attorney can guide you through the process of presenting your case effectively and help you achieve a successful outcome.

    Additional Sources: Juliet L. All v. Safeco Ins. Co and Austin T. Tynes

    Written by Berniard Law Firm Writer

    Additional Berniard Law Firm Article on General Damages: The Role of the Appellate Court and Specific Case Facts in Awarding General Damages

  • HOW DOES A COURT DECIDE HOW MUCH FAULT A DRIVER HAS WHEN BOTH SIDES CAUSED AN ACCIDENT

    Simple driving accidents happen every day due to lapses in inattention. The results of these lapses can have devastating consequences. Whose is at fault in an accident when both parties were less than perfect in assessments of dangers on the road? The subsequent lawsuit from Louisiana shows how a court will determine how much fault each party bears for an accident and adjust damages based on that outcome.

    In 2014, Stephan August was out making a delivery for Domino’s Pizza in his own 2010 Toyota Corolla. He was heading West on Louisiana Highway 1040 in Tangipahoa Parish when Lee Kebreanne drove behind him in her 2001 Toyota Camry. According to  Lee, August was varying his speed, giving her the impression that he did not know where he was going. As a result, Lee decided to pass him in the eastbound lane. Unfortunately, as she was in the eastbound lane, August also pulled into the eastbound, and the two drivers collided.  Lee’s car flipped three times and ultimately landed upside down, and August hit his head on the driver’s side door. 

    August filed a lawsuit against Lee and her insurance companies, GoAuto and Progressive. A trial occurred where the District Court determined that Lee was 100% at fault and awarded August a total of $14,389.05 in damages. Lee appealed the decision citing that the court was wrong about her fault being 100% and that $12,500 in general damages were excessive.  

    To evaluate this case, the appeals court must examine the duties of the two drivers. First, they must examine August’s duties as a left-turning vehicle and Lee’s as an overtaking vehicle. In Louisiana, a left turning has two requirements: the driver must signal their turn at least 100 feet from where they intend to turn and take precautions to ensure that the turn can be made without danger to oncoming traffic or passing traffic. Louisiana Revised Statutes 32:104. 

    For Lee, her duty as an overtaking vehicle in Louisiana law is to be aware of all the conditions that could affect the safety of her actions. She had the right under Louisiana law to assume that  August would exercise due common sense and not be negligent in his driving. Negligence can be assumed when the vehicle turning left crosses the center lane at the time of impact.

    In an assessment of the facts, the court determined that both parties were responsible for a degree of negligence. For August, the prudent driving maneuver would have been to wait to reach the junction of Highway 1040. Further, the reasonable driver should have waited to come to the junction of Highway 1040 and Lowes Lane before changing lanes. 

    As for Lee’s conduct, the court reasons that while August is not absolved of fault, she could have read the situation differently. By her admission, she could assess that  August’s driving was less than predictable. She noted that he was varying his speed, he did not appear to know where he was going, and she could see the illuminated Domino’s sign on the top of his vehicle which should have confirmed her suspicions. She should have reasoned that it was equally likely that the driver was searching for an address on the right or left side of the road. The appeals court found that she was in breach of the standard of ascertaining from all of the circumstances that it was safe to overtake.

    The Court ultimately determined that Lee was 60% at fault and August was 40% at fault. From August’s perspective, he was unaware of the danger he was creating as he turned into the eastbound lane. Lee, by contrast, was in a position to be more aware of the hazards she was creating as she attempted to overtake August and it appears that impatience was her prime motivation.

    For damages, the appeals Court agreed that $12,500 in general damages awarded to  August were excessive. Generally, the District Court enjoys the broad privilege of being able to assign whatever damages it seems necessary, and it would only be revised if a reasonable person found the damage award granted by the District Court to be far above or below what should be granted. Youn v. Maritime Overseas Corporation. 

    The medical consequence of August’s trauma from the crash included headaches and interference with his ability to sleep. The damages were initially assessed based on the assumption that  Lee was 100% at fault. However, due to the appeals court revising the damages to a reduction of 40% relative to the fault allocated to August, the damages were also adjusted to $8,633.43.

    This lawsuit shows the difficulty of presenting the factual story of a disputed car accident. However, the appeal helped sort out the claims of each side. If you find yourself in this situation, hire an experienced attorney to help present your case. 

    Additional Sources: STEPHAN AUGUST VERSUS GOAUTO INSURANCE COMPANY, LEE KEBREANNE AND PROGRESSIVE SECURITY INSURANCE COMPANY

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Fault Allocation in Car Accident Lawsuits: How Should Fault Be Apportioned in a Personal Injury Car Accident Lawsuit?

  • When Coworkers Attack: Negligence Claims for Intentional Workplace Injuries

    An employee injured at work while performing the functions of her job is generally entitled to worker’s compensation. But what about a worker injured on the job by the intentional act of a fellow employee? An action for recovery due to employer negligence could be a better option.

    Louisiana worker’s compensation law does not provide coverage for employees injured during an incident unrelated to their workplace activities, for example, an altercation between co-workers arising out of personal issues. R.S. 23:1031E. 

    Instead, an employer may be liable for negligence if it had reason to believe its employee(s) could be attacked at work but failed to intervene. Posecai v. Wal-Mart Stores, Inc.. Courts will consider whether the employer had information suggesting an incident might occur and, if so, when it was received and what level of detail was available to help determine the appropriate response. See Carr.

    Towana Carr was injured during her shift at Sanderson Farms when she was struck by a pallet jack carrying a ton of dry ice. She was hit once in the leg and again in the chest. This was not the result of Carr being in the wrong place at the wrong time. It was the intentional act of her co-worker, Kevin Michael Webb, a man with a track record for acting aggressively and making threats.

    Carr filed a petition against Sanderson Farms and Webb in the Parish of Tangipahoa. She accused Sanderson Farms of negligently failing to prevent Webb’s attack, a claim dismissed by the district court – twice – for failure to state a cause of action. When Carr appealed for a second time, however, the First Circuit Court of Appeal overturned the lower court’s judgment, finding the additional details Carr provided in her amended petition formed a sufficient basis for a negligence claim.

    According to Carr’s amended complaint, Sanderson Farms was aware of Webb’s history of fighting and domestic abuse. Carr had also reported a tense encounter she had with Webb outside of work and his threatening remarks that made her fear for her safety (“I’ll get at you. I work with you.”) In response, her superiors claimed there was nothing they could do, at least not until the behavior appeared at work. Less than three weeks later, Webb attacked Carr with the pallet jack.

    Assuming the facts of her petition to be true, Carr had a valid negligence claim against Sanderson Farms. An employer must exercise reasonable care for its employees’ safety, which means taking steps to protect workers from foreseeable harm. See Martin. Here, Sanderson Farms failed to protect Carr’s safety despite having three weeks to act on a credible report that a known perpetrator of violence threatened to attack her at work.

    The Court of Appeal found that Carr had a valid cause of action in negligence against Sanderson Farms because she corrected the deficiencies in her original pleading with pertinent details. Carr v. Sanderson Farms illustrates that a well-crafted complaint is essential for efficiently litigating a negligence claim. A good injury lawyer will work with a client to generate a complaint that withstands the court’s scrutiny and keeps the process moving toward a resolution. 

    Additional Sources: Carr v. Sanderson Farms

    Written by Berniard Law Firm Blog Writer: Emily Toto

    Additional Berniard Law Firm Article covering Carr’s original lawsuit: Coworkers Conflict In Tangipahoa Parish Turns Physical and Costly

  • Allocating Damages in Wrongful Death Cases: Navigating the High Standard of JNOV Motion

    Allocating damages in a wrongful death case is challenging because putting a price on a life is hard. Therefore, if a family in a wrongful death case feels the jury abused its discretion in calculating that monetary value, then the family can resort to a motion for JNOV to try and correct the decision. However, this is a rigorous standard, and a recent case out of Baton Rouge outlines how a court reviews these motions. 

    Noha Salama was visiting family in Louisiana from her home in Israel. Her nephew picked her up from the airport in New Orleans, and the two drove down Interstate 10 toward Baton Rouge. The nephew exited the highway at Louisiana Highway 44/Burnside Drive in Gonzales and stopped at the stop sign at the end of the exit ramp. In an attempt to re-enter the interstate, the nephew drove the vehicle across the four-lane highway and failed to stop at the median, which divided the north and southbound lanes. Once the vehicle crossed over the median, it was broadsided by two cars going south. Salama, who was in the front passenger seat, died at the accident scene. 

    Salama’s husband and five children filed a wrongful death action against her nephew, his insurer, the drivers of the two southbound vehicles, their insurers, and the DOTD. The family settled with all of the defendants except for the DOTD, and their case against the DOTD proceeded to a jury trial. The family alleged the DOTD, which had control over the intersection, was at fault for the accident for treating the Highway 44 exit and entrance ramps as a single intersection rather than two separate intersections. 

    The family also argued that the DOTD failed to install a stop or yield sign in the highway median. The jury then found the DOTD 18% at fault for the accident and Mrs. Salama’s nephew 82% at fault. As a result, Mr. Salama was awarded $300,000, and each of the five children was awarded $150,000 in wrongful death damages. However, the jury awarded no survival damages, typically monetary damages for the deceased’s pain and suffering and lost wage earnings until their death. 

    The family filed a motion for a judgment notwithstanding the verdict (JNOV), which asks the judge to enter a verdict in favor of the losing party despite the jury’s ruling. The family filed the motion to argue the allocation of fault to the DOTD and the amount awarded to the family was insufficient. The trial court granted the motion with respect to Mr. Salama, increasing his damages to $400,000, and increased two of the children’s damages to $350,000 and $300,000. The DOTD appealed this new judgment.

    A motion for JNOV under  La. C.C.P. art. 1811 allows the trial court to correct a jury verdict by changing the jury’s fault findings and damages. Bourg v. Cajun Cutters, Inc. It is a very high standard because the jury is the trier of fact and will only be granted when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable people could not reach different conclusions. If there is evidence contrary to the evidence where a reasonable person could reach a different conclusion, then a JNOV is not warranted.

    Upon review, the court assessed whether the initial award to Mr. Salama and two of his children were “abusively low.” The court explained that while it is impossible to place a monetary amount on the loss of life, wrongful death damages are intended to compensate the families for their loss. The monetary award considers loss of love, affection, companionship, support, and funeral expenses. Maldonado v. Kiewit Louisiana Co. 

    Upon review of the testimony from the family, the court first found that although Mr. Salama loved his wife for 29 years, the court could not conclude that no reasonable person would find the award of $300,000 to be abusively low and reinstated the damages to him. 

    The court then reviewed the award for the two children, one of which was 16 when Ms. Salama died, and the other is a diabetic whom Ms. Salama cared for. Wrongful death damages for dependants consider nurture, training, education, and guidance the child would have received had the parent survived. Cavalier v. State, ex rel. Department of Transportation and Development. 

    The court found the JNOV was proper for the 16-year-old child, but the court awarded too much. Therefore, the court revised the award to $250,000. As for the other child, the court found that reasonable people could disagree on whether $150,000 was an abusively low award, and the trial court erred in granting the JNOV motion. 

    Overall, a motion for JNOV is a valuable tool for plaintiffs to try and correct a jury’s decision regarding the allocation of fault and damages. However, granting a motion for JNOV is a rigorous standard because juries are given discretion. Therefore, these motions typically are not granted unless no reasonable person could conclude otherwise. 

     Additional Sources: HANI SALAMA, RUAN SALAMA, REEM SALAMA, RAMI SALAMA, AND ABDUL HAMID SALAMA, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, NADIN SALAMA VERSUS STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, MOHAMED ABU-JABER, GEICO INDEMNITY INSURANCE COMPANY, CARL J. ROBERT, LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, AVIS BELL, AND SAFEWAY INSURANCE COMPANY OF LOUISIANA

    Written by: Berniard Law Firm 

    Other Berniard Law Firm Articles on Challenging Jury’s Allocations of Fault: Can a Trial Court Disregard the Jury’s Determination of Fault in a Foot Injury Case?

  • Underlying Medical Conditions, Can You Claim Res Ipsa Loquitur in a Lawsuit?

    You think that when you’re being taken care of by hospital personnel, you are in safe hands and do not have to fear for your safety. However, if you are injured when being moved from a hospital cart to your bed, can you claim negligence based on res ipsa loquitur? The Fifth Circuit Court of Appeals addresses this question and the difficulties in recovering damages if you have an underlying preexisting condition.

    Joshua Rice was a patient at Cornerstone Hospital for over a year before passing away in May 2012. Joshua’s father, Tommy Rice, brought a negligence suit against Cornerstone, claiming the staff entangled Joshua’s leg and arm when they moved him from a hospital cart to his bed. He suffered a fracture in his hip and shoulder as a result.

    Believing they were not liable for Rice’s injuries, Cornerstone filed a motion for summary judgment. Under Rule 56(a) of the Federal Rules of Civil Procedure, a court should grant summary judgment when there is no genuine dispute of any material fact. If a plaintiff such as Rice cannot prove his case at trial, then a court will dismiss it.

    Rice relied on res ipsa loquitur, an essential part of personal injury cases in Louisiana. It directly transfers to “the thing speaks for itself” meaning the harm caused is direct evidence of negligence caused by the defendant. Res ipsa loquitur is applied when: (1) the defendant has actual control of the agency that plaintiff’s injuries; (2) the evidence as to the true cause of plaintiff’s loss is more readily accessible to defendant than plaintiff, and (3) the accident is of a kind that does not occur in the absence of negligence. Shahine v. Louisiana State Univ. Med. Ctr. in Shreveport.

    The District Court agreed with Cornerstone that there was no genuine issue of material fact pertaining to Rice’s res ipsa loquitur claim. Specifically, the court asserted that even if Rice had created a material fact issue on the first and second elements, the third element weighs in favor of Cornerstone.

    Rice agreed that Joshua had a medical condition of osteomalacia before the claim. Cornerstone’s expert witness testified that this disease weakens bones, making the possibility of fractures during a normal treatment or normal transfer highly possible. Rice replied that the expert did not treat Joshua and that his opinion should carry less weight. 

    The Fifth Circuit Court of Appeals agreed that Cornerstone made a case for summary judgment because Rice did not rebut the expert’s testimony on the osteomalacia, and given Joshua’s fragile bone condition, res ipsa loquitur does not apply. As a result, Joshua’s accident could still have occurred without negligence. Therefore, Rice’s lawsuit was dismissed, and summary judgment on behalf of Cornerstone was granted. 

    While every case is looked at separately with specific facts, this ruling helped answer the question, “if you have an underlying medical condition, can you claim res ipsa loquitur in a lawsuit?” Unfortunately, the answer here was no.

    Additional Sources: TOMMIE RICE V. CORNERSTONE HOSPITAL OF WEST MONROE, L.L.CC.

    Written by Berniard Law Firm Writer Brianna Saroli

    Other Berniard Law Firm Articles on Res Ipsa Loquitor: Injured Taxi Driver Fails to Recover in Claim Based on Res Ipsa Loquitor

  • What Happens When There is More Than One Claim to a Deceased’s Property?

    Losing a loved one is hard enough. What happens, however, when multiple people claim they have a right to the same property the decedent owns at the time of their death? Cases involving multiple parties and claimants can get tricky, especially when one claimant was the decedent’s spouse and the other was their descendant, as was the case in the following lawsuit. 

    After being killed in an accident in New Orleans, Tommie Varnado’s widow, Patricia Varnado, filed a wrongful death and survival action lawsuit against the Louisiana Department of Transportation and Development (DOTD). Although Patricia agreed to settle with DOTD, she died before the trial court signed a consent judgment memorizing the settlement. The trial court then signed a consent judgment ten days after Patricia’s death. Months later, Kenneth John Gaunichaux filed a motion to substitute himself as the plaintiff in place of Patricia, alleging the two were married at the time of her death and that he was entitled to recover the settlement proceeds. The trial court permitted the substitution, although, before the settlement distribution, the DOTD questioned the validity of the consent judgment, as it was signed after Patricia’s death. 

    Melvin J. Owens Jr. then filed a motion to vacate and set aside Kenneth’s motion for party substitution, instead alleging he should be substituted as the plaintiff in place of Patricia. In his motion to substitute party plaintiff, Melvin argued he was the sole heir of Patricia and was the proper party to represent her and to receive the damage award.

    The Civil District Court of Orleans Parish found Melvin to be the proper party to receive the settlement proceeds. Before the signing of the judgment, however, Kenneth filed a motion for reconsideration. The Trial Court noted that applicable Louisiana law did not recognize Kenneth’s motion and subsequently denied it. Kenneth then filed an appeal to the Louisiana Fourth Circuit Court of Appeal. 

    Under Louisiana law, the separate property of a spouse is theirs exclusively. See La. C.C. art. 2341. The Court of Appeal found that Patricia’s right to recover accrued when Tommie died. This right also accrued before her marriage to Kenneth and, as such, was considered Patricia’s separate property. Therefore, when Patricia died, the damage award became part of her estate. 

    La. C.C. art. 880 states, in part, that when a person dies intestate, as Patricia did, their property devolves in favor of their descendants and spouse. La. C. C. art. 888 states, in part, that descendants succeed to the property of their ascendants. 

    The Court of Appeal applied these articles and found that Patricia’s property was devolved by law to her only descendant, Melvin. Based on this finding, the Trial Court’s ruling that Melvin was the proper party to be substituted as plaintiff and receive the settlement proceeds was affirmed.   

    As can be seen, in this case, lawsuits involving multiple claimants and relatives can become complicated, especially when several people claim they are entitled to the same property and the individual dies without a will. That is why it is crucial to hire an attorney with knowledge of the laws surrounding succession rights. 

    Additional Sources: PATRICIA VARNADO, INDIVIDUALLY AND ON BEHALF TOMMIE R. VARNADO, SR. VERSUS CITY OF NEW ORLEANS AND LEONARD D’ARENSBOURG

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on Succession Rights: Fifth Circuit Court Finds Succession Administrator Can Bring Civil Rights Action — Louisiana Personal Injury Lawyer Blog — February 10, 2023