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Tag: Louisiana Law

  • Sewage Spill Showdown: Cedar Lodge’s Fight for Justice Against Fairway View Apartments

    A picturesque pond, once teeming with life, transformed into a murky, foul-smelling mess. The culprit? Alleged sewage contamination from a neighboring apartment complex. This is the story of Cedar Lodge Plantation’s battle against Fairway View Apartments in Baton Rouge, Louisiana, a legal fight that highlights the complexities of environmental disputes and property damage claims.

    The Contamination Crisis:

    In 2012, Cedar Lodge discovered their pond had been contaminated with sewage, evidenced by high levels of fecal coliform bacteria. The source was traced back to the adjacent Fairway View Apartments. Cedar Lodge’s plans to develop their property into a residential and commercial community were shattered, leading them to sue the apartment owners and their sewage treatment contractor.

    Legal Twists and Turns:

    • Expert Witness Drama: The district court initially excluded Cedar Lodge’s environmental expert, Suresh Sharma, from testifying. This decision was later overturned on appeal, except for opinions related to specific federal standards.

    • Summary Judgment for the Defendants: The district court granted summary judgment to Fairway View Apartments, dismissing Cedar Lodge’s claims. The court reasoned that there was insufficient evidence of damage, even though contamination had occurred.

    • Appeal and Partial Reversal: The Court of Appeals partially reversed the district court’s decision, finding that there were genuine issues of material fact regarding Cedar Lodge’s negligence and nuisance claims. The case was remanded for further proceedings.

    Key Takeaways:

    • Environmental Disputes and Property Rights: This case underscores the importance of environmental responsibility and the rights of property owners to be free from contamination caused by neighboring entities.

    • The Role of Expert Witnesses: The admissibility of expert testimony can significantly impact the outcome of a case. The appeals court’s decision to allow Sharma’s testimony demonstrates the importance of carefully evaluating an expert’s qualifications and the relevance of their opinions.

    • Damages in Environmental Cases: Determining damages in environmental cases can be complex. While regulatory standards are important, they don’t necessarily dictate the extent of damages a property owner can recover.

    The Fight Continues: The legal battle between Cedar Lodge and Fairway View is far from over. The case has been remanded to the district court, where a jury will decide whether Fairway View is liable and what damages, if any, should be awarded to Cedar Lodge.

    Additional Sources: CEDAR LODGE PLANTATION, L.L.C., v. CSHV FAIRWAY VIEW I, L.L.C.; CSHV FAIRWAY VIEW II, L.L.C.; CAMPUS ADVANTAGE, INCORPORATED; SEWER TREATMENT SPECIALISTS, L.L.C.,

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Toxic Spills: Petroleum Corporation Releases Millions of Gallons of Toxins Harming Many in Calcasieu Parish and Appellate Court Affirms Trial Court’s Approval of Settlement Agreement in Property Contamination Lawsuit

  • A Car Crash, a Faulty Repair, and a Battle Over Damages

    Patricia Spann’s life took a dramatic turn when she lost control of her Chevrolet Cobalt, resulting in a severe accident that left her with multiple fractures and a lengthy hospital stay. She believed the cause of the accident was a faulty power steering system, recently replaced by Gerry Lane Chevrolet as part of a recall. Spann sued Gerry Lane, alleging negligence in the repair and the hiring and training of their mechanics.

    The legal journey was not a smooth one. Initially, the trial court dismissed Spann’s case, granting Gerry Lane’s motion for summary judgment due to a perceived lack of evidence. However, Spann fought back, securing a new trial based on additional evidence from her expert witness.

    This expert, a mechanical engineer, had conducted multiple inspections of Spann’s car, ultimately concluding that the power steering system failed due to improper installation. Gerry Lane challenged the admissibility of this expert’s testimony, arguing it lacked scientific basis and that some inspections violated a court order. However, the court allowed the testimony, stating that challenges to the expert’s conclusions were about the weight of the evidence, not its admissibility. The court also determined that while the inspections without the defendants present were “troubling,” there was no evidence of intentional wrongdoing.

    At trial, a jury found Gerry Lane partially at fault for the accident and awarded Spann damages for medical expenses and lost wages. However, they did not award any damages for pain and suffering, a decision that Spann challenged. The trial court agreed with Spann, finding the jury’s verdict inconsistent. It granted a Judgment Notwithstanding the Verdict (JNOV), significantly increasing the damages to include a substantial amount for pain and suffering. (see La. C.C.P. art. 1811).

    Gerry Lane appealed, arguing several points, including the admissibility of the expert’s testimony, the evidence from the inspections, the granting of a new trial, and the large increase in damages awarded by the JNOV.

    The appeals court carefully reviewed the evidence and legal arguments. It upheld the trial court’s decisions regarding the expert testimony, the evidence from the inspections, and the new trial. However, while it agreed that the jury’s verdict was inconsistent and a JNOV was warranted, it found the trial court’s increase in damages to be excessive. The appeals court reduced the additional award for pain and suffering, striking a balance between recognizing Spann’s injuries and respecting the jury’s initial findings.

    This case underscores several important legal concepts. It highlights the critical role of expert witnesses in complex cases, particularly when technical or scientific issues are involved. It also emphasizes the importance of adhering to court orders and the potential consequences of violating them, even if unintentional.

    Furthermore, the case demonstrates the power of a JNOV to correct an inconsistent or unjust jury verdict. However, it also shows that even when a JNOV is granted, the court’s discretion in awarding damages is not unlimited and must be based on a reasonable assessment of the evidence.

    Spann v. Gerry Lane serves as a reminder that the legal process can be long and complex, with multiple layers of review and potential for appeals. It underscores the importance of seeking experienced legal counsel to navigate these complexities and ensure that justice is served.

    Additional Sources:PATRICIA SPANN VERSUS GERRY LANE ENTERPRISES, INC. D/B/A GERRY LANE CHEVROLET, ABC AND XYZ

    Written by Berniard Law Firm 

    Other Berniard Law Firm Articles on Increase of Jury Awards: How can an Appeal Affect a Jury’s Award for Mental and Physical Pain and Suffering?  and Allocating Damages in Wrongful Death Cases: Navigating the High Standard of JNOV Motion

  • Court of Appeal Increases Monetary Damages Award Following Workplace Injury in Monroe Beverage Facility

    Injuries that occur while an individual is working can devastate the injured party’s life in several ways. Not only does the injured party likely earn less money due to the injury, but other damages, such as medical expenses and loss of enjoyment of life, may also result.

    James Thomas was a forklift operator for Marsala Beverage Company (“Marsala”) in Monroe, Louisiana. In addition to operating forklifts, Thomas routinely moved cases of drinks by hand and performed janitorial duties around the facility. On one occasion, when Thomas was operating a forklift to unload pallets of drinks, the forklift fell out of the back of a delivery truck, landing several feet below onto concrete.

    After the fall, Thomas visited Marsala’s company doctor, Dr. George Woods, complaining of pain in his back. Dr. Woods examined Thomas and ordered x-rays, which showed no evidence of fractures in Thomas’s spine. During the visit, Thomas explained to Dr. Woods that he wanted to return to work as soon as possible to receive bonus compensation based on the number of hours he worked that week. Dr. Woods cleared Thomas to return to work, which he did even though he continued to experience back pain.

    After several months, Thomas stopped working and filed a lawsuit against Louisiana United Businesses Association Casualty Insurance Company (“LUBA”). Marsala’s insurance carrier. In the petition, Thomas sought damages for physical and mental suffering, medical expenses, inability to earn past and future wages, disability, and loss of consortium.

    At trial, the jury awarded Thomas $40,000 for general damages, $34,977 for inability to obtain past wages, and $40,000 for previous medical expenses. It also awarded Thomas’s wife $10,000 for loss of consortium. Subsequently, the trial judge decreased Thomas’s total award to approximately $50,000 based on Thomas’s failure to mitigate damages.

    Thomas appealed to Louisiana’s Second Circuit Court of Appeal. The first issue on appeal was whether the $40,000 award for general damages was, as Thomas argued, abusively low. The purpose of general damages is to compensate an injured party for pain and suffering that cannot be precisely calculated. Duncan v. Kansas City Southern Railway Company, 773 So.2d 670 (La. 2000). There is no definitive way to calculate general damages, Terry v. Simmons 215 So.3d 410 (La. Ct. App. 2017), but a jury should consider the severity and duration of pain and suffering that the injury caused. LeBlanc v. Stevenson, 770 So.2d 766 (La. 2000). The Court of Appeal affirmed the jury’s award of $40,000 in general damages based on the fact that the jury based the amount on evidence that the duration and the severity of Thomas’s injury were low.

    Additionally, much of the evidence revealed discrepancies in Thomas’s accident description. These discrepancies likely reduced Thomas’s credibility with the jury. The Court specifically noted that Thomas’s Facebook posts following the injury were inconsistent with the level of activity that he reported to doctors and that Thomas described the details of the accident differently to six different doctors he visited throughout treatment

    The second issue for the Court of Appeal was whether the jury’s decision to not award Thomas damages for future medical expenses was reasonable. Under Louisiana jurisprudence, a party must provide evidence of the need for future medical expenses through testimony from a medical expert. Terry v. Simmons 215 So.3d 410 (La. Ct. App. 2017). An appellate court must only determine if the jury’s award was reasonable. Menard v. Lafayette Ins. Co. 31 So.3d 996 (La. 2010).

    Here, the Court of Appeal noted that there was no objective medical evidence to show that Thomas continued to suffer pain from the accident. Additionally, several physicians opined that Thomas’s back pain was not caused by the injury but rather by aging. In light of this evidence and Thomas’s failure to show that he would incur expenses for medically necessary future treatment, the Court of Appeal held that the jury’s decision not to award damages for future medical expenses was reasonable.

    The third issue before the Court of Appeal was whether the jury’s award of $34,977 for lost wages was reasonable. A party looking to recover previously lost wages must prove the dollar amount lost and the duration of work missed due to the injury. Boyette v. USAA, 783 So.2d 1276 (La. 2001). The Court of Appeal noted that the jury miscalculated its award for lost wages because it based its figure on 12 months of missed work; Thomas, in fact, could not work for 16 months. Accordingly, given Thomas’s wages of $2,872.33 per month, the jury should have multiplied this figure by 16 months, resulting in a total award for lost wages of $45,957. 

    Next, the Court of Appeal examined the jury’s decision not to award Thomas damages for loss of future earnings. In Louisiana, the loss of future earnings is determined by the decrease in the injured party’s ability to work based on his experience level, type of work, and training. Young v. Marsh, 153 So.3d 1245 (La. Ct. App. 2014). The Court of Appeal affirmed the jury’s decision not to award damages for loss of future earnings based on the fact that Thomas was able to return to performing janitorial duties after the injury as well as Thomas’s failure to provide evidence of the amount of earnings he would expect to lose if he found only a light duty job.  

    The fifth issue for the Court of Appeal was whether Thomas failed to mitigate his damages. In Louisiana, an injured party must reduce damages using reasonable discretion, good faith, and fair dealing. Young v. Marsh (supra). The injured party must comply with whatever treatment is recommended by a healthcare professional reasonably expected to heal the injury. Flemings v. State, 19 So.3d 1220 (La. Ct. App. 2009). An injured party who unreasonably delays medical treatment, where that delay aggravates the injury, is considered to have failed to mitigate damages.

    The trial record indicated that Thomas did not complete all the physical therapy that was recommended and that he did not take all the medication that was prescribed by his doctors. However, the Court of Appeal determined that these failures were the fault of LUBA, not Thomas himself. Since the evidence showed that Thomas reasonably attempted to comply with the recommended medical treatment, the Court of Appeal held that Thomas adequately mitigated damages.

    The sixth issue before the Court of Appeal concerned the jury’s award of $10,000 to Mrs. Thomas for loss of consortium, which Thomas argued was abusively low. A spouse may recover monetary damages for loss of consortium when an injury to a spouse results in loss of companionship, impairment to sexual relations, decreased ability to perform material services, decreased financial support, loss of aid and assistance, and loss of fidelity. La. C.C. art. 2315(B).

    Noting that Thomas was able to help around the house after the injury by performing light duties and that Thomas suffered from high blood pressure and erectile dysfunction for several years before the injury, the Court concluded that the injury did not result in a substantial decrease in the quality of the Thomas’ marriage. Therefore, the $10,000 award for loss of consortium was reasonable and not abusively low. 

    The seventh and final issue for the Court of Appeal concerned the trial court’s prohibition against introducing evidence about the worker’s compensation benefits that Thomas had already received before the trial. The Court determined that since the ban on introducing previously received worker’s compensation benefits is absolute under Louisiana law, the trial court did not err in excluding that evidence from the trial. See La. C.E. art. 414.

    This case demonstrates the importance of retaining an experienced attorney in a workplace injury case. To cite one example, had the attorney representing Thomas failed to notice that the jury incorrectly calculated Thomas’s lost wages award and enumerated that error on appeal, Thomas’s overall recovery would have been reduced by almost $11,000.  

    Additional Sources: THOMAS v.  BOYD ET AL.

    Written by Berniard Law Firm

    Additional Berniard Law Firm Articles on Workers Compensation: Injured Worker Denied Appeal in the City of New Orleans

     

  • Injured Shreveport Worker’s Claim Saved from Dismissal on Summary Judgment in Case Involving an Allegedly Open and Obvious Hazard

    David Cox delivered four pallets of shirk-wrapped material for his employer, Southwestern Motor Transport, in June 2012. The delivery location was the Baker Distributing Company warehouse in Shreveport, Louisiana. Baker’s delivery dock did not have a dock plate. A dock plate is a metal bridge connecting a truck’s back to the loading dock. There is an empty space between the back of the truck and the loading dock without a dock plate. In addition, Cox found that the loading dock was cluttered with several objects. Due to this clutter, Cox could not use a forklift to unload the truck.

    Working alone, Cox managed to get two pallets off the truck with a pallet jack but then used a dolly for the last two pallets. While attempting to get the previous pallet off the truck, Cox’s foot became wedged between the dock and the truck, causing him to fall on his back. Cox filed a lawsuit as a result of being injured.

    In the lawsuit Cox alleged that this fall caused him to have permanent injuries that made him disabled. The injury resulted in Cox receiving worker’s compensation benefits. Cox filed a lawsuit against Baker, arguing that the lack of a working dock plate made the dock unreasonably dangerous, that the lack of a dock plate was not easily visible to parties making deliveries to the warehouse, and that Baker had a duty to provide a safe entrance for parties unloading at the dock.

    Baker filed a motion for summary judgment, arguing that Cox was aware of the lack of a dock plate; this made the hazard open and evident to Cox, thereby insulating Baker from liability for his injuries. The trial court, concluding that the lack of a dock plate was open and obvious to individuals using the loading dock, granted Baker’s motion. 

    A hazard is considered open and obvious when the danger is clear to all who may encounter the hazard. Generally, a defendant is not obligated to protect against an open and obvious risk. Hutchinson v. Knights of Columbus, 866 So.2d 235 (La. 2004). On appeal by Cox, the Second Circuit Court of Appeal for Louisiana acknowledged that the lack of a dock plate was evident to anyone attempting to unload items on the warehouse dock. However, in its view, the overall condition of the dock should also have been assessed when the trial court considered Baker’s motion for summary judgment.

    The Court of Appeal specifically mentioned that other relevant factors — such as the gap between the truck and the dock, the cluttered loading dock area, the inability of a forklift to maneuver the area, and the lack of assistance available to Cox — could have influenced one’s perception of the hazard. Because the trial court did not consider these additional factors, the Court of Appeal held that the decision to grant Baker’s summary judgment motion was improper. Therefore, the Court of Appeal reversed the trial court and remanded the case for reconsideration. 

    Louisiana law insulates premises owners from liability for injuries resulting from open and obvious hazards, showing that the owner of a building is not responsible for every misfortune that a visitor may encounter. Anyone who has suffered an injury on someone else’s property should seek an attorney experienced in premises liability to determine if the facts of the situation establish responsibility on the property owner’s part.

    Additional Sources:  COX v. BAKER DIST. CO., L.L.C.

    Written by Berniard Law Firm  

    Additional Berniard Law Firm Articles on Workers Compensation:  Is Your Employer Liable If You Fall In The Parking Lot?

  • Driver Not Liable for Passenger’s Injury in Accident Beyond His Control

    Sometimes, being a passenger in a car can be a frustrating and disturbing experience. This is especially true when actions beyond the passenger’s control, such as being involved in a collision, put his or her life in danger. When such a situation arises, the injured passenger will, understandably, seek compensation from the responsible party. However, if the person who caused the accident leaves the scene and is never apprehended by law enforcement, an injured person may turn their attention elsewhere for financial compensation. Such a situation arose following a car accident on a stretch of highway between Jennings and Lafayette, Louisiana. 

    Kyle Jordan was driving a rental car with Riley Moulton as a passenger. The vehicle was sideswiped, causing Jordan’s car to flip over and injure Moulton. The hit-and-run driver was never identified, so Mouton sued both Jordan and the rental car company, EAN Holdings, for damages. The defendants moved for summary judgment, arguing that since Mouton admitted in his deposition that Jordan was driving safely at the time of the accident and did nothing to cause it, Moulton offered no evidence to support a theory of recovery against Jordan or EAN Holdings. The trial court granted the defendant’s motions for summary judgment. Mouton appealed to Louisiana’s Third Circuit Court of Appeal.

    The Appellate Court reviewed the facts of the case as laid out by Mouton himself in his deposition testimony. Mouton stated that Jordan had set the cruise control in the car to 70 MPH, consistent with the speed limit, and was “driving correct.” He further testified that the accident occurred when Jordan made a proper change into the left lane to pass a large truck.

    A driver in a Kia came up from behind and, in a dangerous and illegal move known as “shooting the gauntlet,” attempted to pass Jordan’s vehicle on the right-hand side between it and the truck Jordan was trying to pass. The Kia sideswipedan’s vehicle, sending it out of control. Jordan attempted to regain control but overcorrected and flipped the car. Mouton’s testimony made it evident that Jordan could not have done anything to avoid the accident.

    Summary judgment should be granted if “the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” Hardy v. Bowie, 744 So.2d 606 (La. 1999). In this instance, the Court noted, Mouton was unable to point to any evidence suggesting Jordan’s liability for the injuries he suffered in the crash.

    Mouton freely admitted in his deposition that Jordan was “driving as he was supposed to” by following the speed limit and remaining in his lane. Mouton also revealed that Jordan could not have taken any actions to avoid the accident. It was beyond his control, and the Kia driver was solely responsible for side-swiping Jordan. 

    Jordan also was not at fault for any action he may have taken after being sideswiped by the Kia under the sudden emergency doctrine. The doctrine provides that “one who finds himself in imminent danger, without sufficient time to weigh and consider all of the circumstances or means of avoiding danger, is not guilty of negligence if he fails to choose what subsequently appears to be the better method.” Bryn Lynn Corp. v. Valliere, 434 So.2d 600 (La. Ct. App. 1983).

    The Court determined that there was nothing Jordan could have done to avoid the accident, which occurred suddenly and unexpectedly; under the sudden emergency doctrine, he cannot be considered negligent for failing to regain control of the car. Instead, the driver of the Kia was solely at fault for the injuries Mouton suffered. Therefore, the Court affirmed the trial court’s grant of summary judgment in Jordan’s favor.

    Similarly, the Court held that Moulton offered no theory of recovery against EAN Holdings, which simply rented a car to Jordan. When a car renter is in “exclusive physical control of the lease object,” negligence “cannot be imputed to the lessor.” Dixie Drive It Yourself Sys. v. American Beverage Co., 137 So.2d 298 (La. 1962).  The Court noted that even if Jordan had been at fault for Mouton’s injuries, EAN Holdings would not have been liable under this “well settled” rule. Thus, the Court also affirmed the trial court’s grant of summary judgment in favor of EAN Holdings.

    This case demonstrates two important principles. First, it shows how courts attempt to resolve disputes quickly and efficiently through summary judgment when a plaintiff fails to provide factual support for his theory of recovery. Second, it demonstrates the operation of the sudden emergency doctrine that limits a person’s liability when unexpectedly thrust into a dangerous situation caused by another party’s negligent or reckless actions. In what should be a comfort to motorists across Louisiana, the doctrine affords them some leniency for not acting perfectly reasonably when they are put in a situation for which they are not trained and have little or no experience. In this case, Jordan was not a stunt driver or car racer; the Court determined he could not be expected to know how to react perfectly when his car was sideswiped at highway speeds.

    Additional Source:  RILEY MOUTON VERSUS EAN HOLDINGS, LLC, ET AL.

    Written by Berniard Law Firm