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  • Can a business be liable if a patron slips and falls on a wet walkway?

    Lawsuits involving slip and fall accidents are widespread. However, specific requirements must be satisfied to prevail in a slip-and-fall case. The following lawsuit helps answer the question: Can a business be held liable if a patron slips and falls on a wet walkway? 

    While walking with her son in the Treasure Chest Casino parking lot, Linda Cangelosi slipped and fell under the outdoor tent that covered part of the walkway entrance into the casino. Cangelosi slipped while stepping from the roadway to the walkway. At the time of her fall, the ground was wet, with puddles. After he fell, employees of Treasure Chest Casino assisted Cangelosi and called an emergency team. Cangelosi declined their offer to transport her to the hospital and continued to the casino. However, about 45 minutes later, she left because her hip hurt. She consulted with a doctor, who provided her with pain medication. Since the accident, Cangelosi had to use a walker and has been in pain. Cangelosi filed a lawsuit against Treasure Chest Casino. Both Cangelosi and Treasure Chest Casino filed motions for summary judgment. The trial court granted Treasure Chest Casino’s summary judgment motion. Cangelosi appealed. 

    Under La. C.C. art. 2317, the owner of a thing is liable for damage if they knew or should have known about the defect that causes damage, which could have been prevented if the owner had exercised reasonable care. Further, under La. C.C. art. 2322, this also applies to building owners. Therefore, if Cangelosi provided sufficient evidence that Treasure Chest Casino knew or should have known about the wet walkway that caused her slip and did not act reasonably, she could prevail in her lawsuit.

    On appeal, Cangelosi argued the casino’s walkway was unreasonably dangerous and defective, which resulted in her fall. She claimed there was a hazardous condition from the passing vehicles and improper drainage. She claimed her allegation there were all kinds of debris and liquids was sufficient to establish there was a hazardous condition. Treasure Chest Casino countered Cangelosi did not provide sufficient evidence to prove there was an unreasonable dangerous condition they failed to warn patrons about. Treasure Chest Casino specifically pointed to a non-skid product it used on its walkways.

    Additionally, Cangelosi and her son testified they knew the ground was wet because it had rained most of the day. A video of Cangelosi’s fall showed she stepped directly into a puddle, which the appellate court explained was an obvious hazard. Thus, Treasure Chest Casino had adequately supported its summary judgment motion with evidence its walk was not defective. In contrast, Cangelosi had not provided evidence of an unreasonably dangerous condition that caused her fall. Therefore, the appellate court agreed with the trial court’s grant of Treasure Chest Casino’s summary judgment motion because there were no disputes of material facts. 

    This case at the Treasure Chest Casino highlights the importance of establishing liability in such incidents. While Cangelosi argued that the casino’s walkway was unreasonably dangerous and defective, the appellate court ultimately found that she had not provided sufficient evidence to support her claim. The court’s decision underscored the importance of addressing the presence of clear hazards and the responsibility of business owners to ensure a safe environment for patrons. If you find yourself in a similar situation, seeking legal counsel is crucial to understanding your potential for success in a lawsuit against the establishment.

    Additional Sources: Linda Cangelosi v. Treasure Chest Casino, LLC

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Slip and Fall Accidents: Slip and Fall in Louisiana Convenience Store Lawsuit Discusses Open and Obvious Risk

  • Management Company Not Qualified As Additional Insured In Cleaning Company’s Insurance Policy

    It can be challenging to interpret insurance policies, especially when they involve complex provisions such as coverage for an additional insured. Before signing an insurance policy, it is imperative to understand its language and what it does and does not cover. Here, the plain language of the insurance policy proved instrumental in the appellate court’s ruling.

    Pamela Sloane was injured while working for Integrity Cleaning Services (“Integrity”) at Forestwood Apartments. She was cleaning a ceiling fan while standing on a ladder. She inadvertently touched an exposed wire, which electrocuted her, and she fell from the ladder. Sloane filed a lawsuit against CLK Multifamily Management (“CLK”) and others. Sloane claimed CLK had not adequately maintained the premises or warned of the dangerous condition of the exposed wire. CLK filed its answer to the lawsuit, denying the allegations, and added Travelers Indemnity (“Travelers”) to the lawsuit.  CLK claimed Integrity was contractually required to have a general liability insurance policy that covered CLK as additional insureds. 

    Travelers filed a summary judgment motion, claiming CLK was not an additional insured under the policy. Travelers attached a copy of the relevant insurance policy to its summary judgment motion. CLK disagreed and claimed it was indeed an additional insured.  The trial court concluded CLK was not qualified as an additional insured and granted Travelers’ summary judgment motion. 

    An insurance policy is a contract interpreted using general contractual interpretation rules.   Under La. C.C. art. 2045, the court’s role is to determine the parties’ common intent.  To do so, courts look first at the insurance policy’s language. See La. C.C. art. 2046. Here, CLK had the burden of proving the applicable insurance policy covered it because it was the party claiming to be covered by the insurance policy. 

    The court analyzed the additional insured provision of the insurance policy. While CLK and Travelers did not disagree that Integrity had agreed to have its insurance cover CLK as an additional insured, they disputed the scope of coverage and whether CLK qualified.  In interpreting the plain language of the insurance policy, the court concluded the policy only applied to CLK when Integrity would have been vicariously liable for something Integrity had done or had failed to do. 

    In this case, Sloane’s allegations would have involved something CLK had independently done or failed to do, not an act or omission of Integrity. Given the circumstances of Sloane’s injuries involving the exposed wire, Integrity could not be liable for her injuries, such as if Integrity had not properly trained Sloane how to clean a ceiling fan.  Therefore, the appellate court affirmed the trial court’s grant of Travelers’ summary judgment motion.

    As seen in this case, it was insufficient for CLK to confirm the insurance policy had an additional insured provision. Instead, CLK needed to read and understand the specific requirements for applying the provision. An experienced insurance claim attorney can help advise you on insurance policies so you know what the policy does and does not cover. 

    Additional Sources: Pamela Sloane v. Forestwoods Apartments/Baton Rouse, LTD., CLK Multifamily Management, LLC and Aspen American Ins. Co.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Insurance Coverage: Understanding Insurance Exclusions: A Case of Property Damage Coverage for Borrowed Cars

  • What Is An Occupational Disease Under The Louisiana Workers’ Compensation Act?

    If you have experienced symptoms from working in a moldy work environment, you might think you are entitled to recover from your employer. However, navigating the Workers’ Compensation system can be challenging partly because of the distinct and often complicated vocabulary in the statutes. This case involves defining an occupational disease under the Louisiana Workers’ Compensation Act.

    Angela Lyle worked in the payroll department at Brock Services. Her office was in a trailer in Norco, Louisiana, at the Valero plant. Lyle claimed she saw mold throughout the trailer that increased over the two years she worked at the site. She suffered from fatigue, burning eyes, sores, and other symptoms. After suffering a nosebleed, she underwent a medical evaluation. Testing confirmed mold was present in the office, so Lyle’s trailer was replaced. Once the trailer was replaced, some of Lyle’s symptoms went away, but others persisted, and new symptoms emerged. 

    She resigned and was diagnosed with sarcoidosis in her lungs and lymph nodes. She then filed a claim with the Workers’ Compensation, claiming she had suffered an occupational disease and was entitled to damages. The workers’ compensation judge denied her claim as neither her mold exposure nor the development of sarcoidosis qualified as an occupational disease or accident under the Louisiana Workers’ Compensation Act. Brock filed a summary judgment motion, arguing Lyle could not establish sarcoidosis was an occupational disease. The workers’ compensation judge granted Brock’s summary judgment motion, finding Lyle’s sarcoidosis was not an “occupational disease. Lyle appealed, arguing the workers’ compensation judge ignored the definition of an “occupational disease” under the Louisiana Workers’ Compensation Act.

    La. R.S. 23:1031.1(B) defines an occupational disease under the Louisiana Workers’ Compensation Act. The court considers an employee’s work-related duties to determine if an illness is an occupational disease. On appeal, Lyle argued in a recent court case, Arrant v. Graphic Packaging International, Inc., the Louisiana Supreme Court held causation was the primary determinant of whether a claim is compensable as an occupational disease. She argued that this connection between the employment environment and the claimant’s illness was different from the prior duties-based approach, which required a causal link between the claimant’s illness and the claimant’s work-related duties. 

    The appellate court disagreed with Lyle’s interpretation of Arrant and held there had to be a causal link between Lyle’s illness and her work-related duties. Therefore, the appellate court agreed with the workers’ compensation ruling that granted Brock’s summary judgment motion and dismissed Lyle’s claim. 

    If you or a loved one have experienced an illness you think resulted from your job, a good attorney can advise you on the requirements to prevail in a claim under the Louisiana Workers’ Compensation Act. This can include presenting evidence to support a causal connection between the illness and your job duties. Otherwise, even if you have been working in a potentially harmful environment, like Lyle’s moldy trailer office, you might be unable to recover.

    Additional Sources: Angela Douglas Lyle v. Brock Services, LLC

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Causation in Workers’ Compensation Claims: The Challenge of Establishing Causal Links in Workers’ Compensation Claims

  • Contra Non Valentem Inapplicable To Lawsuit From Lung Cancer Death

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

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

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

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

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

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

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

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

    Article Written By Berniard Law Firm

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

  • Understanding Statutory Employer Immunity in Workers’ Compensation Cases in Louisiana

    Statutory employer immunity is critical in determining liability and compensation for workplace injuries in workers’ compensation. The following case is an example where the court had to decide whether the defendant was entitled to statutory employer immunity under the dual contract theory provided for in La.R.S. 23:1061(A)(2). We will examine the facts of the case, the arguments presented by both parties and the court’s decision. We will also examine the legal framework surrounding statutory employer immunity and its impact on workers’ compensation cases.

    The case involves Patrick Cummins, a worker hired by a subcontractor to perform its contract with R.A.H. Homes and Construction, LLC (“R.A.H.”), the defendant. The homeowners had contracted R.A.H. to construct a single-family home, including the installation of an attic HVAC system. Cummins became seriously injured when the attic access ladder malfunctioned, and he fell while performing the work required under R.A.H.’s contract with the homeowners.

    Cummins sued several defendants, including R.A.H., in tort, alleging that R.A.H. was directly responsible for the improper installation of the attic ladder that led to the accident. In response, R.A.H. asserted an affirmative defense of statutory employer immunity under La.R.S. 23:1061(A)(2), claiming that a statutory relationship existed through the two-contract theory.

    The two-contract theory allows a contractor (in this case, R.A.H.) to claim statutory employer immunity if it entered into two separate contracts: one with the homeowner and another with the subcontractor performing work on the project. For this defense to apply, the work or services provided by the subcontractor must be contemplated or included in the contract between the principal and the homeowner.

    Cummins argued that R.A.H. was not his statutory employer under La.R.S. 23:1061(A)(3) because no written contract expressly recognized R.A.H. as his statutory employer. However, the court disagreed, citing the dual-contract theory and the absence of a written contract requirement under La.R.S. 23:1061(A)(2). It emphasized that R.A.H. had two separate contracts – one with the homeowners and another with the subcontractor, United, for whom Cummins worked. Because the work performed by United was provided for in the contract between R.A.H. and the homeowners, the court found a statutory relationship between R.A.H. and Cummins.

    Statutory employer immunity is essential to workers’ compensation laws, ensuring that workers injured on the job receive compensation while limiting employers’ liability. By providing exclusive remedy protection, the law aims to avoid lengthy tort litigation and to facilitate a more efficient and streamlined resolution of workers’ compensation claims.

    The Louisiana Third Circuit Court of Appeal affirmed the trial court’s decision and upheld R.A.H.’s entitlement to statutory employer immunity under the two-contract theory. The case is a valuable example of how statutory employer immunity works in workers’ compensation cases, highlighting the importance of contracts and the interplay between the parties involved. As statutory employer immunity laws can vary from jurisdiction to jurisdiction, it is important to understand the specific provisions applicable in a given case to ensure a fair and equitable resolution for all parties involved.

    Additional Sources: APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2016-4264

    Written by Berniard Law Firm Blog Writer: Oprah Jerome

    Other Berniard Law Firm Articles on Workers Compensation: Should an employer continue to pay Workers’ Compensation Benefits even after an employee has fully recovered?

  • Who’s At Fault if your car is stolen then involved in a wreck? The Thief, Victim, or Third Party Owner? (One Judges Dissenting Opinion)

    In the legal system, dissenting opinions, i.e., opinions delivered by one or more judges who disagree with the decision, play a crucial role in shaping the interpretation and application of the law. They provide valuable insights into alternative viewpoints, often sparking discussion and debate and ultimately leading to the evolution of jurisprudence. One such notable dissenting opinion can be found in the case of Christopher Blanchard v. Demetrius J. Hicks et al., authored by Justice Cooks. In this blog post, we look at the case, the arguments made in the dissent, and the importance of dissent in the legal landscape.

    The case of Christopher Blanchard v. Demetrius J. Hicks et al. arose from an incident in which Officer Blanchard’s patrol car was struck by a stolen truck. The plaintiff, Officer Blanchard, alleged that the defendant, Demetrius J. Hicks, was negligent in leaving his vehicle unattended with the keys in the ignition and the engine running, thereby facilitating the theft that led to the accident.

    The majority of the court relied on the precedent set by the Supreme Court’s decision in Racine, which held that leaving keys in a vehicle does not create liability for the motorist if a thief steals the car and causes injury to a third party. However, Judge Cooks dissented from the majority’s opinion, arguing that Racine does not dispose of the factual matter at hand.

    Judge Cooks pointed out that Racine’s circumstances differed from the present case. The vehicle was not parked on a public street or roadway in Racine. Thus, it did not fall under the scope of the statute that prohibits leaving a motor vehicle unattended without stopping the motor, locking the ignition, and removing the key. Conversely, in the present case, the stolen vehicle was parked on a public roadway with the keys in the ignition and the engine running.

    Judge Cooks disagreed with the majority’s reliance on prior cases, such as Roach v. Liberty Mutual Ins. Co., Berlochaux v. Employers Mutual of Wausau, and Call v. Huffman. These cases, according to the dissent, did not involve a violation of the statute in question and were not directly applicable to the current matter.

    Judge Cooks also emphasized that the law on this issue was far from settled. He argued that a duty/risk analysis should be conducted to determine whether Hicks’ actions breached the duty imposed by the statute and contributed to Officer Blanchard’s injuries. This, he argued, should be decided by a fact finder after a full trial on the merits.

    Judge Cooks stressed modern principles of negligence and comparative fault, suggesting that Hicks may bear some degree of comparative fault for his negligent behavior in leaving his keys in the car on a public road, making it easy for a thief to steal the vehicle and cause harm to others. He argues that the statute has always emphasized its purpose of preventing theft. Therefore, the owner of the vehicle had a duty to prevent the theft of his vehicle and, in breach of that duty, owed some degree of comparative fault to the plaintiff.

    Dissenting opinions such as Judge Cooks’ play a crucial role in the legal system. They offer alternative interpretations and analyses of the law, providing a dissenting view that can shape future legal developments. Judge Cooks sheds light on the case’s complexity by raising important questions about the applicability of previous precedents and emphasizing the need for a duty-risk analysis.

    This case is a prime example of the importance of dissenting opinions in the legal system. Judge Cooks’ dissent challenges the majority’s reliance on prior cases and calls for a comprehensive analysis of the applicable law. The dissent encourages critical discussion that can influence future decisions and contribute to the ongoing development of the law. As the legal landscape evolves, dissents will remain essential to the judicial process, ensuring a robust and dynamic legal system.

    Additional Sources: APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 257,487

    Additional Berniard Law Firm Articles on Liability: Who’s At Fault if your car is stolen then involved in a wreck? The Thief, Victim, or Third Party Owner?

    Written by Berniard Law Firm Blog Writer: Oprah Jerome 

    Other Berniard Law Firm Articles on Car Accidents: A Life-Altering Car Accident Ignites a Legal Feud

  • Gender Discrimination and Online Fallout – A High School Legal Tale

    Gender Discrimination has unfortunately been around for as long as time, infiltrating many corners of people’s lives. But when you feel discriminated against at your high school, the lawsuit process can be much trickier than some might think. The Court of Appeals for the Fifth Circuit addresses whether a Title IX claim can be brought and successfully won when a picture is posted to the internet, violating a school’s policy. 

    Rebecca Arceneaux attended Assumption High School (“AHS”) and was on the varsity cheerleading team from her freshman to junior years. A photo of Arceneaux in her uniform skirt that was raised appeared on the popular social media app Snapchat. This publicly viewed picture was brought to the attention of the school, and Arceneaux was punished with in-school suspension and dismissed from the cheerleading team. Arceneaux’s parents appealed the suspension with no avail. On May 19, 2016, her parents filed suit on her behalf against the school, claiming the discipline constituted gender discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which is actionable under 42 U.S.C. § 1983.

    On appeal, the Court of Appeals for the Fifth Circuit considered words of Title IX and gender discrimination. AHS is under the jurisdiction that receives federal funding for operation and benefits. Arceneaux alleged that this jurisdiction subjected her to intentional discrimination by punishing female student-athletes more harshly than a male athlete would be punished for doing the same or similar behavior. 

    The Court considered that intentional discrimination may be proven through direct or circumstantial evidence. Circumstantial evidence may be brought in to prove intentional discrimination in Title VII claims as established by McDonnell Douglas Corp. v. Green. The Court noted the dispute in the case was whether Arceneaux could establish a prima facie claim of intentional discrimination. 

    A prima facie case is a defense that is adequately established by a party’s evidence to justify a verdict in their favor. The bottom line is that Arceneaux must present enough evidence that, if believed, would provide enough to give an inference of unlawful discrimination. She must prove that she was excluded from the team and suspended based on her being a female student.

    The Court ruled against Arceneaux, holding that being a female student was not why she was excluded from participating in cheerleading. Instead, she was removed from the team because she posed for and uploaded a photo of her raising her uniform skirt to the internet. Overall, this penalty was under the AHS cheerleading disciplined policy, and the court dismissed the case, ruling in favor of the school.

    So, what can you do if you think you’ve been discriminated against based on gender? Well, the legal aspects can be complicated and sticky. When dealing with these issues, it is pertinent to make sure that you hire an expert attorney who understands the workings of Title IX and can help you with possible discriminatory behavior.

    Additional Sources: REBEKKA ARCENEAUX VS. ASSUMPTION PARISH SCHOOL BOARD; NILES RICHE

    Written by Berniard Law Firm Writer Brianna Saroli 

    Other Berniard Law Firm Articles on Discrimination: What are Legitimate, Nondiscriminatory Reasons for Hiring Decisions in a Gender Discrimination Lawsuit?

  • Louisiana Court Promotes Liberal Construing of Will Execution Requirements

    Wills and testaments often lead to family drama after a family member dies. Fights over control, money, and inheritance can lead to many legal and emotional battles. When those battles of power come to a legal setting, how do courts assess if a will has validly identified a new overseer of the estate?

    Strouder Pelfrey died in August 2015 with a last will and testament in place. His son, Steven Pelfrey, later filed a petition requesting the trial court appoint him as the administrator and declare his father’s will and testament invalid. Steven argued that the will violated La. C.C. art. 1577 by lacking a sufficient attestation clause. Following Steven’s petition, Theresa Pelfrey filed a petition to probate the will and be appointed executrix as Strouder designated in his will. The trial court appointed Theresa executrix of the decedent’s estate, pending the result of Steven’s petition to be appointed administrator. The trial court later determined that Strouder’s will did not violate La. C.C. art. 1577, and denied Steven’s petition. Steven appealed that decision, bringing the case to the Second Circuit. 

    Louisiana law states that the requirements for the execution of wills and testaments must be followed–otherwise, the testament is invalid. La. C.C. art. 1573. Strict adherence to these requirements ensures the will’s authenticity and protects wills from various issues, such as fraud or undue influence. Succession of Roussel, 373 So. 2d 155, 158 (La. 1979).

    La. C.C. art. 1577 states that valid testaments must include the following: (1) the testator’s witnessed declaration that the document is the testament, (2) the testator’s signed name on each page and at the end of the testament, and (3) the notary and two witnesses’ signed declaration and the testator’s attestation that La. C.C. art. 1577 was followed in the drafting of the testament. This is an attestation clause. 

    A valid will requires an attestation clause or clause of declaration in some form. These clauses exist to demonstrate that the will and testament were correctly executed under statutory requirements. However, the form of these clauses is not strictly outlined, and courts generally treat attestation clauses with some forgiveness, maintaining the validity of the will so long as the will substantially complies with the statutory requirements of La. C.C. art. 1577. In re Succession of Holbrook.

    Strouder’s will contained two attestation clauses at the end, one to be signed by Strouder and one to be signed by the notary and witnesses. Steven argued that the notary and witness statement fails to state that the will was signed in the presence of the notary and witnesses and that failure means that the will does not meet the statutory requirements. However, Louisiana law suggests a presumption in favor of the will’s validity, and certain issues with the formality of the will must be highly compelling to counteract that presumption. In re Succession of Holbrook. 

    Louisiana courts do not need attestation clauses to be strictly or formally written so long as the will substantially complies with the formal requirements of will execution, and because Strouder’s will still substantially complied with the statutory requirements, the Second Circuit determined that the will was still valid. Accordingly, the Second Circuit affirmed the trial court’s denial of Steven’s petition to be named administrator and invalidated the will. 

    Additional Sources: Succession of Strouder Calvin Pelfrey

    Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Last Wills and Testaments: Caddo Parish Trial Court Required to Consider Factual Evidence to Appoint Only One Estate Executor

  • 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

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

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

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

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

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

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

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

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

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

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

    Additional Sources: Talbert v. Restoration Hardware, Inc. 

    Written By Berniard Law Firm

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