gets.primecure.net

Category: Product Defect

  • The Advocate Highlights Jeff Berniard’s Expertise in Smitty’s Supply Explosion Case

    Fire and smoke rise from a chemical plant following the Smitty’s Supply explosion in Tangipahoa Parish.
    The Advocate recognized attorney Jeff Berniard for representing families impacted by the Smitty’s Supply chemical plant explosion and fire.

    The Advocate recently recognized Attorney Jeff Berniard and the Berniard Law Firm for their role in representing families displaced by the Smitty’s Supply explosion and fire in Tangipahoa Parish. Read the full Advocate article here.

    The feature highlights Berniard’s track record of success in large-scale litigation. Over his career, he has served as class counsel and lead counsel in numerous high-profile cases, including lawsuits involving chemical leaks, defective products, insurance bad faith practices, and environmental disasters.

    His legal experience includes being appointed to plaintiff steering committees and class counsel roles in major cases such as:

    • Deepwater Horizon Oil Spill (MDL 2179) – Representing victims of one of the largest environmental disasters in U.S. history.

    • Chinese Drywall Litigation (MDL 2047) – Representing homeowners across Louisiana and beyond who faced toxic building materials.

    • Insurance Bad Faith Class Actions – Representing over 70,000 policyholders after Hurricanes Katrina and Rita.

    The Advocate’s recognition underscores the trust that courts, the media, and affected families place in Berniard’s ability to advocate for justice in the aftermath of industrial and environmental disasters.

    “Our mission has always been to stand up for people against powerful companies and insurers,” Berniard said. “Being recognized in The Advocate for our work on behalf of Tangipahoa Parish residents is a reminder of why we fight these battles every day.”

    You can contact the Berniard Law Firm’s office today to talk about your legal rights as a result of the Smitty’s Fire and lawsuits. Call our office today at 504-521-6000.

    See Also: Attorney Jeff Berniard Featured on WGNO for Leadership in Smitty’s Supply Class Action Lawsuit

    What You Need to Know About the Smitty’s Supply Explosion and Fire in Tangipahoa Parish

  • Stairway to Dismissal: Missed Deadline Leads to Summary Judgment in Injury Case

    This case focuses on the procedural aspects of a personal injury lawsuit, highlighting the importance of deadlines and the consequences of missing them.

    Case Background

    Charles and Jeri Kouba sued the City of Natchitoches after Mr. Kouba fell on a staircase owned by the city. They alleged a defect in the staircase caused his injuries. The City filed a motion for summary judgment, which the Koubas opposed. However, they missed the deadline to file their opposition and requested a continuance (postponement) of the hearing. The trial court denied their request and granted summary judgment in favor of the City.

    Motion to Continue

    The Koubas argued that they needed more time to gather evidence and expert opinions to oppose the summary judgment motion. However, the appeals court found no abuse of discretion in the trial court’s denial of their continuance request. Here’s why:

    • Missed Deadline: The Koubas missed the statutory deadline to file their opposition to the summary judgment motion.
    • Purpose of Continuance: The court explained that the purpose of allowing continuances in summary judgment proceedings is to give parties time to comply with deadlines, not to excuse missed deadlines.
    • Lack of Good Cause: The Koubas’ reason for missing the deadline was their attorney’s calendaring error, which the court did not consider a sufficient “good cause” for a continuance.

    Summary Judgment

    The court then reviewed the summary judgment ruling itself, applying the same standards as the trial court:

    • Burden of Proof: The City, as the moving party, had the burden to show that there was no genuine issue of material fact.
    • Premises Liability: In Louisiana, to hold a public entity liable for an injury on its property, a plaintiff must prove several elements, including that the property was defective, the defect posed an unreasonable risk of harm, and the entity had notice of the defect.
    • Lack of Evidence: The court found that the Koubas failed to present sufficient evidence to create a genuine issue of material fact regarding the City’s knowledge of any defect in the staircase.

    Exclusion of Evidence

    The Koubas also argued that the trial court erred in excluding photographs they attempted to introduce. However, the court found no error because the Koubas had missed the deadline to file these photographs with their opposition to the summary judgment.

    Key Takeaways

    • Deadlines Matter: Meeting procedural deadlines is crucial in legal proceedings. Failure to do so can have serious consequences.
    • Summary Judgment Standards: Summary judgment can be a powerful tool to resolve cases efficiently when there are no genuine factual disputes.
    • Premises Liability: Proving a premises liability claim against a public entity requires evidence of a defect, an unreasonable risk of harm, and the entity’s knowledge of the defect.

    Outcome

    The appeals court affirmed the trial court’s decision, upholding the denial of the continuance and the grant of summary judgment in favor of the City. This case underscores the importance of diligence in meeting procedural deadlines and the necessity of presenting sufficient evidence to survive a summary judgment motion.

  • Safety Recall Doesn’t Negate Redhibition: Louisiana Court Rules in Favor of Car Buyer

    In a victory for consumer rights, the Louisiana Fifth Circuit Court of Appeal recently overturned a trial court’s decision to dismiss a redhibition claim against Mercedes-Benz USA (MBUSA). The case, Philip A. Franco v. Mercedes-Benz USA, LLC, involved a defective airbag and highlights the interplay between safety recalls and Louisiana’s redhibition laws.

    Case Background

    Philip Franco purchased a used 2010 Mercedes-Benz GL450 SUV in 2013. In 2016, he received a safety recall notice from MBUSA regarding a potentially dangerous defect in the driver-side airbag. The defect could cause metal fragments to be propelled toward the driver or passengers in the event of an accident, potentially resulting in severe injury or death. MBUSA’s notice stated that a suitable replacement was not yet available but would be provided free of charge when it was.

    Unhappy with the situation, Mr. Franco demanded either a loaner vehicle until the defect was fixed or a full repurchase of the car. MBUSA refused, prompting Mr. Franco to file a redhibition lawsuit. Redhibition is a legal remedy in Louisiana that allows buyers to rescind a sale or obtain a reduction in price if the purchased item has a hidden defect that significantly impairs its use or value.

    MBUSA responded with an exception of no cause of action, essentially arguing that Mr. Franco had no legal basis to sue because the company was already obligated to replace the defective airbag under the federal recall. The trial court agreed and dismissed Mr. Franco’s case.

    Court of Appeal’s Reversal

    The Court of Appeal disagreed with the trial court’s decision and reversed the dismissal. It held that Mr. Franco’s redhibition claim was valid and not preempted by the National Highway Transportation Safety Act (NHTSA), which governs vehicle safety recalls.

    The court emphasized that a manufacturer’s obligation to repair or replace a defective product under a recall does not eliminate a buyer’s right to pursue a redhibition claim under Louisiana law. The court also noted that Mr. Franco’s petition adequately alleged the existence of a redhibitory defect, even though the defect had not yet caused an injury.

    Key Takeaways

    This ruling is a win for consumers in Louisiana. It clarifies that even if a manufacturer issues a recall for a defective product, buyers still have the right to pursue a redhibition claim if the defect significantly impairs the use or value of the product.

    The case also highlights the importance of understanding your rights as a consumer. If you purchase a product with a hidden defect, you may be entitled to a refund or a price reduction, even if the manufacturer offers to repair the defect.

    If you’re facing a similar situation, it’s crucial to consult with an experienced attorney who can advise you on your legal options and help you navigate the complexities of redhibition law.

    Remember: A safety recall doesn’t necessarily mean the end of the road for your legal rights. You may still have a valid claim for redhibition under Louisiana law.

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Redhibition: Vehicle Defect Leads to Redhibition Claim in Louisiana and Redhibition Lawsuit Against Monroe Automobile Dealer Dismissed Due to Prescription

  • Too Late to Sue: Court Upholds Prescription in Construction Site Injury Case

    In a ruling emphasizing the critical importance of adhering to legal deadlines, the Louisiana Court of Appeal, Fifth Circuit, affirmed the dismissal of a personal injury lawsuit due to prescription, leaving the injured plaintiff without recourse. In the case, the court affirmed a trial court judgment that dismissed Tammy Blanchard’s personal injury claims due to prescription or the expiration of the time limit for filing a lawsuit.

    In 2015, Ms. Blanchard filed a lawsuit alleging she was injured while walking on a grassy pathway to Gerry’s Place, a business in Jefferson Parish. She claimed she tripped over concrete debris left by contractors working on a nearby drainage canal project. The initial lawsuit named several defendants, including Gerry’s Place, Jefferson Parish entities, and an unnamed contractor referred to as “ABC Contractors.”

    Later, Ms. Blanchard amended her petition to add Fleming Construction Company, LLC, and Shavers-Whittle Construction, LLC, as defendants after discovering their involvement in the construction project. However, these amended petitions were filed more than a year after the injury occurred.

    The Issue of Prescription

    Fleming and Shavers-Whittle filed an exception to prescription, arguing that the claims against them were time-barred because the amended petitions were filed beyond the one-year prescriptive period for personal injury cases in Louisiana. Ms. Blanchard countered, invoking the doctrine of contra non valentine, which can suspend the running of prescriptions under certain circumstances.

    Trial Court’s Ruling

    The trial court granted the exception of prescription, dismissing the claims against Fleming and Shavers-Whittle. It reasoned that the amended petitions were filed too late and that Ms. Blanchard failed to demonstrate that she exercised reasonable diligence in identifying and naming the correct defendants within the prescriptive period.

    Court of Appeal’s Affirmation

    The Court of Appeal affirmed the trial court’s decision. It emphasized that once a petition is prescribed on its face, the burden shifts to the plaintiff to prove that prescription has been suspended or interrupted. In this case, Ms. Blanchard failed to provide sufficient evidence to support her claim of contra non valentem.  

    The court noted publicly available information about the construction project and the involved contractors. Ms. Blanchard could have exercised reasonable diligence to identify the correct parties within the one-year prescriptive period. Her failure to do so resulted in her claims being time-barred.

    Key Takeaways

    This case serves as a stark reminder of the importance of adhering to legal deadlines. In Louisiana, the prescriptive period for personal injury cases is one year. If you fail to file your lawsuit within this timeframe, you may lose your right to seek compensation for your injuries.

    The doctrine of contra non valentine can potentially suspend prescriptions under certain circumstances, such as when the plaintiff is prevented from filing suit due to factors beyond their control. However, the plaintiff must demonstrate that they exercised reasonable diligence in pursuing their claim.   

    If you have been injured, it is critical to consult with an attorney as soon as possible to ensure that your legal rights are protected and that you file your lawsuit within the applicable prescriptive period. Delaying legal action can have severe consequences, as illustrated in this case.

    Remember: Time is of the essence in personal injury cases. Don’t let the clock run out on your right to seek justice.

    Additional Sources: Tammy Blanchard v. Gerry’s Place, Inc., et al.,

    Written By Berniard Law Firm

    Other Berniard Law Firm Articles on Prescription: Louisiana Court Upholds Prescription in Wrongful Death Suit, Highlights Joint Tortfeasor Rule and The Clock is Ticking: Understanding Prescription in Louisiana Personal Injury Cases

  • Louisiana Court Upholds Medical Malpractice Review Requirement in Hospital Device Lawsuit

    In a recent Louisiana Court of Appeal decision, the court reinforced the importance of the Louisiana Medical Malpractice Act (LMMA) in determining the course of lawsuits against healthcare providers. The case involved a patient who allegedly suffered injuries due to a medical device used after surgery.

    Gregory Arrington, following surgery at St. Tammany Parish Hospital, was provided with an Alternating Leg Pressure (ALP) wrap to prevent blood clots. He claimed the device malfunctioned, causing him harm. The Arringtons sued the hospital, alleging negligence in the selection, purchase, and implementation of the ALP wrap.

    The hospital countered with a dilatory exception of prematurity, arguing that the claims fell under medical malpractice and required a medical review panel’s evaluation before proceeding to court. The trial court agreed and dismissed the Arringtons’ claims against the hospital without prejudice. The Arringtons appealed this decision.

    The Court’s Ruling and the Coleman Factors:

    The Court of Appeal affirmed the trial court’s ruling, focusing on the LMMA’s definition of “malpractice” and the six “Coleman factors” used to determine if a claim falls under medical malpractice.

    The court held that the hospital’s actions regarding the ALP device constituted “healthcare” under the LMMA. They reasoned that the selection and use of medical devices are intertwined with patient treatment and require medical expertise.

    The court also considered the Coleman factors, particularly:

    • Treatment-Related: The use of the ALP wrap was directly related to Mr. Arrington’s post-surgery treatment and involved professional medical judgment.
    • Expert Medical Evidence: Determining if the hospital was negligent in choosing and using the device would necessitate expert medical testimony.
    • Assessment of Patient’s Condition: The decision to use the ALP wrap involved assessing Mr. Arrington’s risk for DVT, a medical condition.
    • Physician-Patient Relationship: The incident occurred within the context of a physician-patient relationship and the scope of activities a hospital is licensed to perform.
    • Injury Related to Treatment: The injury allegedly wouldn’t have happened if Mr. Arrington hadn’t sought treatment at the hospital.

    Things to Know: 

    • Importance of the Medical Review Panel: The LMMA mandates that medical malpractice claims be reviewed by a medical review panel before litigation. This process aims to filter out meritless claims and encourage early resolution.
    • Broad Scope of the LMMA: The LMMA’s definition of “malpractice” is expansive, encompassing not just the direct treatment of patients but also decisions about medical devices and equipment used in their care.
    • Coleman Factors as a Guide: The six Coleman factors provide a framework for courts to determine whether a claim falls under medical malpractice, even in cases where the line between administrative and medical decisions may seem blurred.

    This case emphasizes the importance of understanding the LMMA and its procedural requirements when pursuing claims against healthcare providers in Louisiana. It reinforces the necessity of a medical review panel’s assessment in cases involving allegations of negligence related to medical devices and equipment. If you have suffered an injury due to a medical device, it is crucial to seek legal counsel to navigate the complexities of the LMMA and protect your rights.

    Additional Sources: GREGORY ARRINGTON HUSBAND OF/AND CLARNETTA ARRINGTON VERSUS ST. TAMMANY PARISH HOSPITAL SERVICE DISTRICT NO. 1 D/B/A ST. TANIMANY PARISH HOSPITAL AND CURRIE MEDICAL SPECIALTIES, INC. 

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Medical Malpractice: What Type of Expert Testimony Is Needed in a Louisiana Medical Malpractice Lawsuit? and Louisiana Court Reverses Summary Judgment in Medical Malpractice Case: The Importance of Expert Testimony

  • Louisiana Court Says Trampoline Injury Not Caused by Defect in Shreveport Trampoline Park

    Sometimes, those delightful recreational activities we all enjoy carry an inherent risk. Often, we assume the risk of those injuries when we engage in that potentially reckless conduct. Knowing your legal options following these injuries is necessary, mainly because recovering for these somewhat ordinary injuries can be difficult. What does it look like when a party cannot recover for a recreational injury–here, an injury from a trampoline park visit?

    Kurt and Tabitha Perkins visited a Shreveport indoor trampoline park, Air U. Kurt was injured while at Air U, and he was relatively young, had no known or apparent medical issues before the injury, and had done some time with the U.S. Marine Corps. The Perkinses filed a lawsuit against Air U and other parties, namely insurance companies and Air U’s unidentified employees. 

    Kurt stated in a deposition that he did not know why his left knee gave out when jumping on the trampoline, as he had no other injuries or treatment to his left leg. The other patrons at the trampoline park, mostly young kids, had no trouble jumping on the trampoline. Kurt and Tabitha stated that they did not notice any defects on the trampoline and that Kurt jumped normally when he was hurt. Tabitha also said that an Air U employee did not call an ambulance because he was not a manager. 

    One of Air U’s owners, Mr. Murphy, stated that the other owners had vast experience with trampolines, but Air U did not have liability insurance when Kurt was injured. Murphy further said that patrons at Air U are repeatedly shown the park’s rules and must sign a waiver, which Kurt did. Additionally, Murphy stated that Air U trampolines are tested twice weekly for proper tension every day and for proper structure. 

    Dr. Gerald George, a Ph.D. in biomechanics, inspected Air U for the plaintiffs and stated in his affidavit that Kurt’s injuries were consistent with what one could expect from the unreasonably dangerous activity of jumping on trampolines. 

    Air U filed a motion for summary judgment. At the motion’s hearing, the Perkinses argued that the design of the trampoline park was inherently defective and dangerous, particularly the mounting of the wall trampolines at angles. Air U argued in response that the defects alleged by the Perkinses were irrelevant because Kurt was jumping up and down on a floor trampoline when he was injured. 

    The trial court, Parish of Caddo, partially granted Air U’s motion for summary judgment and dismissed part of Perkins’ claims. The Perkinses appealed that decision by the trial court and brought the case to the Second Circuit. 

    A court should grant a motion for summary judgment if the record shows no genuine issue of material fact. La. C.C.P. art. 966. The party moving for summary judgment is burdened with no factual support for at least one element of the other party’s claim. Upon that showing, the nonmoving party must produce factual support for that questionable element to prevent summary judgment. La. C.C.P. art. 966(D)(1). Appellate courts reviewing summary judgment rulings should use the same criteria used by the trial court and assess the record anew to determine if summary judgment was appropriate.

    In their appeal, the Perkinses argued that the possible defective design, installation, and inspection of the Air U trampolines were all still disputed and could have created an unreasonable risk of harm. The Perkinses further argue that they have sufficient evidence to support this claim and show a dispute of material fact, thus barring summary judgment. The Perkinses’ claim of the trampoline’s risky defects is outlined in La. C.C. arts. 2317 and 2317(1). Ultimately, a plaintiff seeking damages caused by a defect has to prove four things: (1) the defecting thing was in the defendant’s control, (2) the thing unreasonably risked harm to others due to a defect, (3) the defect caused the damage or injury, and (4) the defendant knew, or should have known, that the defect existed. Wells v. Town of Delhi. 

    Determining whether the defective thing is in the defendant’s custody is determined by considering if the defendant has the right of direction or control over the thing and if there is any benefit the defendant gets from that thing. Barnes v. Riverwood Apartments P’ship. The Second Circuit determined that Air U was in custody of the potentially defective trampoline because Air U owns and maintains the trampolines and gets revenues from controlling those trampolines. 

    A thing is defective if there is a condition that creates an unreasonable risk of harm to others using ordinary care and caution. Lawrence v. Sanders. To assess if something creates an unreasonable risk of harm, the social value and utility of the thing must be weighed against its possible danger to others. This balancing test can be done through several factors, such as whether the possible danger is obvious to potential victims of that danger, or perhaps whether there is a history of accidents related to the alleged defect. Moore v. Oak Meadows Apartments. The Perkinses argued that the entire Air U park was dangerous and defective, so the Second Circuit had to consider whether the social utility of the park outweighed its potential harm to patrons. Evidence indicated that Air U had a high social utility for its 90,000 patrons of all ages and that Air U had a history of 88 documented injuries in its first nine months of operation, a rate below the national average in the trampoline park industry. Accordingly, the court determined that the park’s utility outweighed its harm, and thus, the Perkinses did not show a defect in Air U. Because the Perkinses failed to prove this second element of La. C.C. art, 2317(1), their claim fell short. 

    The Perkinses also claimed that the trial court failed to apply res ipsa loquitur when it granted summary judgment. Res ipsa loquitur is a doctrine of negligence that applies when the plaintiff uses circumstantial evidence to show the defendant’s negligent conduct. Res ipsa applies when (1) the injury would not generally occur without negligence, (2) the evidence should sufficiently show that negligence was the cause of the injury, and (3) the defendant’s negligence must fall under the defendant’s duty owed to the plaintiff. Linnear v. Centerpoint Energy Entex/Reliant Energy. The court assessed the applicability of res ipsa to Kurt’s injury and found that an injury to the knee due to jumping on a trampoline is not such an extraordinary injury that it indicates the trampoline owner’s negligence. Accordingly, the Second Circuit determined that res ipsa did not apply to deem Air U negligent concerning their trampolines. 

    Everyday recreational activities often bear the risk of injury, but people still engage in those activities. When those people get injured during those activities, it is essential that they acquire counsel to help them navigate the problematic injury of recovery–both legal and monetary recovery, as well as physical. The areas of defective conditions and unreasonable risks are murky, and getting knowledgeable representation is vital to your best outcome in court. 

    Additional Sources: Perkins v. Air U Shreveport, LLC

    Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Defects: City’s Liability for a Child’s Fall on a Defective Sidewalk

  • Liability in Product-Related Injury Cases: Key Legal Questions and Liability Theories

    When an injury related to a product occurs, assigning fault can involve multiple parties. In personal injury litigation, crucial legal questions arise regarding whom the plaintiff can seek compensation from, if anyone, and the underlying theory of liability. The following case offers a valuable exploration of common liability theories often encountered in product-related injury cases.

    During their stay at a PNK Lake Charles, L.L.C. casino hotel (from now on “PNK”) in July 2015, Anthony Luna, who had limited mobility due to a recent knee surgery, was provided a wheelchair by a PNK employee. While being pushed to their hotel room by one of his children, the wheelchair suddenly stopped, jamming Luna’s foot. Luna inspected the wheelchair but found nothing amiss. However, during another ride, the wheelchair abruptly stopped again, breaking the front left wheel in half and collapsing.

    Anthony and Dana Luna and their minor children filed a lawsuit against PNK, alleging negligence and seeking damages under La. C.C.P. art 2315 and La. C.C.P. art 2317. They claimed that PNK’s negligence in providing a defective wheelchair caused injuries to Luna, hindering his recovery following knee surgery.

    To establish custodial liability in Louisiana, the plaintiffs needed to prove four elements: (1) PNK had custody of the wheelchair; (2) the wheelchair had a defect posing an unreasonable risk of harm; (3) the defect caused the damage; and (4) PNK knew or should have known about the defect. The plaintiffs also invoked the doctrine of res ipsa loquitur, which allows the court to infer negligence if the facts indicate that PNK’s negligence was more probable than not the cause of the injury. See Cormier v. Dolgencorp, Inc. 

    The Fifth Circuit reviewed the district court’s grant of summary judgment de novo, applying state substantive law. The court found the lack of inspection by PNK did not establish constructive knowledge of the defect since no evidence indicated that an inspection would have revealed it. Luna had inspected the wheelchair himself after the initial incident and found nothing wrong. Consequently, the lack of inspection did not prove constructive knowledge.

    The court also determined that res ipsa loquitur did not apply because the inference of a hidden defect was equally as likely as the inference that a detectable defect caused the accident. As a result, the court affirmed the district court’s decision to grant summary judgment in favor of PNK and Zurich.

    This case shows the complexities surrounding assigning liability in product-related injury cases. This case is a valuable reference in understanding the legal intricacies surrounding product-related injuries and the burden of proof required to seek compensation from the parties involved. It also helps show the need for experienced counsel when proceeding with a product liability lawsuit in court. 

    Additional Source: ANTHONY R. LUNA v. P N K LAKE CHARLES L.L.C.

    Written by Berniard Law Firm Blog Writer: Juliana Greco 

    Additional Berniard Law Firm Article on Product Liability Claims: Louisiana Court of Appeal Discusses Theories of Liability in Products-Related Injury Case

  • Tutrix Was Proper Party To Bring Legal Malpractice Claim On Behalf of Minor

    A minor is generally unable to bring a lawsuit on their behalf. As seen in the following case, this can lead to disputes about who the proper party is to bring a lawsuit for the minor. 

    Shannon Jones and Jennifer Brunelle filed a lawsuit against healthcare providers, the manufacturers of a device used in surgery, and loss of consortium claims for their daughter, Haley Jones. They retained an attorney, Gary Roth, to represent them. They settled the medical malpractice claim against one of the defendants. Brunelle received letters appointing her as natural tutrix for their minor daughter, Haley Jones. They then filed a petition in the medical malpractice lawsuit to approve the settlement, which the court granted. 

    Brunelle then discharged Roth as her attorney and retained attorneys at the Gainsburgh firm. With the new representation, they settled with the medical device manufacturer. The settlement was not finalized until months later. Brunelle claimed her attorneys had committed legal malpractice while negotiating the settlement agreement and caused delays in finalizing it. After extensive disputes related to the underlying facts in the case, the trial court eventually granted the Roth defendants summary judgment motion. It dismissed Brunelle’s legal malpractice claims against the Roth attorneys. Brunelle appealed, claiming the trial court erred in dismissing her claims. 

    On appeal, the trial court considered whether there was an attorney-client relationship between the Roth defendants and Haley Jones. Brunelle argued the fact Haley lacked capacity was irrelevant to determining whether Haley and the Roth defendants had an attorney-client relationship. She claimed Haley’s father entered a contract with the Roth defendants for himself and on Haley’s behalf. Therefore, Brunelle argued the Roth defendants owed an independent duty to Haley. The Roth defendants countered any breach of their duty to Haley depended on their attorney-client relationship with her father. 

    To succeed in a legal malpractice claim, the plaintiff must establish that an attorney-client relationship was in effect when the alleged malpractice occurred. See Vagelos v. Abramson. There must be a clear and express agreement between an attorney and the client for an attorney-client relationship to exist. See Weinstein v. Weinstein. 

    Haley’s father had to enter an agreement with the Roth attorneys because Haley was a minor. There was no dispute Haley’s father had entered this agreement. However, Brunelle discharged the Roth attorneys two years before the alleged malpractice occurred and hired different attorneys. Nonetheless, because the contract was intended to benefit Haley’s interests, the Roth attorneys had a duty not only to Haley’s father but also to Haley herself. Therefore, Haley could bring a legal malpractice claim against the Roth attorneys. 

    While the Roth attorneys argued only her father was entitled to bring a legal malpractice claim against them on Haley’s behalf, the appellate court disagreed. The court explained this could make it so a minor who subsequently becomes an adult could not bring a legal malpractice claim if his or her parents refused. Under La. C.C.P. art. 683(C), Brunelle was the proper party to bring the legal malpractice lawsuit on Haley’s behalf because she was Haley’s co-tutrix. Next, the court had to consider whether the legal malpractice claim had merit. 

    Brunelle alleged the Roth defendants were negligent in failing to obtain informed consent from Haley to enter the $8.25 million settlement, failing to disclose before settlement how the settlement funds would be allocated, and failing to take action to enforce the settlement. 

    The appellate court explained because Haley was a minor at the time of the settlement, she lacked the capacity to consent to the settlement. See La. C.C. art. 1918. Therefore, the Roth attorneys did not have a duty to communicate with Haley directly. Instead, it was sufficient to only communicate with her parents. 

    Haley’s father provided an affidavit that stated at the time of the settlement, the Roth attorneys informed him about the potential settlement and how funds would be litigated. Brunelle did not provide any evidence that contradicted Haley’s father’s affidavit. The appellate court also explained the attorneys did not have a duty to inform their clients on the specifics of how the settlement funds would be allocated. 

    Concerning Brunelle’s claim that the Roth attorneys failed to enforce the settlement, which resulted in interest being lost on the settlement funds, the court focused on who caused the delay in finalizing the settlement. Written letters indicated Brunelle had rejected the settlement. Further, Haley’s father had to file a motion to enforce the settlement, requesting the court order Brunelle to sign the documentation required to finalize the settlement. Brunelle did not present any evidence that there were other reasons why it took so long to finalize the settlement besides her delay in refusing to sign the required documentation. 

    Therefore, because of the lack of evidence the attorneys had breached a duty to Haley or caused a delay in executing the settlement, the appellate court agreed with the trial court’s dismissal of Brunelle’s legal malpractice claims. Therefore, even though Brunelle was the proper party to bring Haley’s legal malpractice claim, she could still not prevail because the claim lacked merits.

    This case highlights the complexities that arise when a minor is involved in a lawsuit. Due to Haley’s minority, she could not bring the legal malpractice claim on her own, leading to disputes about who the proper party should be. The appellate court clarified that Brunelle, as co-tutrix for Haley, had the authority to pursue the claim on her behalf. However, despite the proper representation, the court ultimately dismissed Brunelle’s legal malpractice claims against the Roth attorneys, finding a lack of evidence to support the alleged breaches of duty or delays in the settlement process. This case underscores the importance of establishing an attorney-client relationship and presenting substantial evidence when pursuing legal malpractice claims, especially when minors are involved.

    Additional Sources: Shannon Jones and Jennifer Jones, Individually and on Behalf of their Daughter, Haley Jones v. ABC Ins. Co. and Cobe Cardiovascular, Inc., et al

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Lawsuits Involving Minors: Parents File Suit When Minor Child Suffers as a Result of Physician’s Failure to Test Brother

  • 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

  • Considering a Lawsuit? Don’t Discard Evidence Critical to Your Case

    An important safeguard in the law is the requirement for an accusing party to support its allegations with facts and, ultimately, evidence. There are multiple reasons to have this protection in place. Proceeding with a claim that makes a wrong conclusion against another party would not be particularly fair or just, nor would it be an effective use of court resources.

    Louisiana courts entitle a party to move for summary judgment to press the opposing side to demonstrate there is a genuine dispute to resolve. La. Code Civ. P art. 966. If, for example, a plaintiff makes a claim that requires the support of physical evidence that they cannot produce, summary judgment will be granted. The following case out of Washington Parish, Louisiana, shows why, if you are considering a lawsuit, you should never discard evidence critical to your case. 

    Robert D. Byrd used a home-based oxygen machine provided by Pulmonary Care Specialists, Inc. (PCS). He was hospitalized for respiratory failure after being found unconscious by his mother, who reported that the machine was running at the time. Byrd’s machine did not undergo maintenance or repair before the incident. However, his mother did request service one day earlier. Byrd’s mother subsequently set the oxygen machine out with the trash, preventing follow-up testing or inspection. 

    Byrd filed a lawsuit against PCS for 1) negligence based on lack of service that resulted in the device’s malfunction and 2) breach of duty to provide safe equipment. PCS moved for summary judgment on both claims due to an absence of evidence linking Byrd’s respiratory failure to the usage of its product, which the trial court granted.

    In the appeal that followed, various issues arose due to late filings, problematic motions, and questions about the sufficiency of Byrd’s appellate brief. However, the First Circuit Court of Appeal was generous in sifting through the mistakes to identify actions that could be brought to a resolution.

    First, the First Circuit Court of Appeal affirmed the trial court’s finding of negligence due to insufficient product support because there was no evidence to indicate the oxygen machine had malfunctioned. Additionally, no evidence was put forward to argue a malfunction led to Byrd’s respiratory failure. The Court of Appeal noted in the record that the evidence revealed no witness who could testify to what occurred at the time of Byrd’s respiratory failure. 

    Further, considering the machine itself was missing, Byrd couldn’t produce an expert who tested it to opine whether or not the alleged malfunction occurred. It was up to Byrd to present evidence of this nature to defeat summary judgment. He didn’t, and the trial court’s decision was upheld, dismissing Byrd’s case.

    Byrd’s situation demonstrates how a plaintiff needs to connect all the dots to prove an injury was caused by negligence. Unfortunately, any chance of gleaning evidence to support his claim became unavailable when the device was discarded. If there is any possibility you will seek a legal remedy for a personal injury, proceed with caution: keep hold of vital information and let an experienced lawyer guide the way.

    Additional Sources: Robert D. Byrd vs. Pulmonary Care Specialists, Inc.

    Written by Berniard Law Firm Blog Writer: Emily Toto

    Additional Berniard Law Firm Article on Medical Device Failure and Negligence: Tragic Incident Involving Infant Demonstrates Assignment of Liability