Louisiana Personal Injury Lawyer Blog

The Jones Act is officially titled the Merchant Marine Act of 1920 and was passed by Congress in response to concerns about the health of the Merchant Marine and to establish protections for sailors. Before the Jones Act, seamen who were injured had few options for recovering damages for their injuries, but now the Jones Act allows you, as an injured seaman, to obtain damages from your employer for the negligence of the ship owner, the captain, or fellow members of the crew.

A federal statute (46 U.S.C. § 688) extends the Federal Employer’s Liability Act (FELA), which originally only applied to railway workers to seamen and it reads, in part, "[a]ny sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply..."

According to the Fifth Circuit Court of Appeals for the State of Louisiana, “an employer is held to the standard of care of ‘ordinary prudence under the circumstances.’” Admiralty and maritime law can become increasingly complicated and it is important that you sufficiently prove to the court that your employer has breached the standard of care that is owed to you. In Lett v. Omega Protein, Inc., a recent case decided by the Fifth Circuit, the importance of having quality representation with experience in admiralty and maritime law is evident.

In this case, James Lett filed a lawsuit against his former employer, Omega Protein, Inc., and two of Omega’s fishing vessels. Mr. Lett asserted negligence claims, unseaworthiness claims, and claims for maintenance and cure. From 2007 to 2009, Mr. Lett worked for Omega Protein as a seaman and an engineer aboard several of Omega’s fishing vessels. Specifically, Mr. Lett was responsible for maintaining the engine room, which included chipping off rust from the floor for several hours using a needle gun. According to Mr. Lett, he sustained several injuries to his back and neck from this activity. The district court below dismissed all of Mr. Lett’s claims and granted summary judgment in favor of Omega Protein.

According to the Fifth Circuit, to establish a claim of unseaworthiness under general maritime law, an injured seaman must prove “that the owner has failed to provide a vessel, including her equipment and crew, which is reasonably fit and safe for the purposes for which it is to be used.” Lastly, to be successful on a claim of unseaworthiness, a seaman “must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonable probable consequence of the unseaworthiness.”

On appeal, the Fifth Circuit affirmed the judgment of the district court and dismissed Mr. Lett’s claims. The Court concluded that Mr. Lett failed to create a genuine issue of material fact regarding his unseaworthiness claim because Lett failed to provide any evidence that the use of the needle gun aboard the vessel was unsafe. Rather, Mr. Lett pointed to the availability of safer rust-removing equipment, but the Court said that this evidence alone – without evidence indicating that the needle gun is unsafe – was not enough to create a genuine factual dispute regarding unseaworthiness. According to the Court, “a plaintiff must present sufficient evidence to raise a jury question whether a method of operation is unsafe, before a fully equipped vessel, with all its gear in good working order, can be rendered unseaworthy.”

This case illustrates the critical elements that must be established sufficiently to successfully bring an unseaworthiness claim. Experienced attorneys can help determine what evidence to use and how to apply it to your situation in admiralty cases.

Continue reading "Jones Act Negligence and Unseaworthiness Explored in Louisiana Maritime Case" »

We hear about injuries to customers resulting in large settlements in the news frequently. In any industry, there is some risk that clients or customers will be injured during the time they are patronizing the establishment. When these injuries occur it often results in a lawsuit. Who is at fault (and as a result, liable for the damage) generally comes down to a determination of the "duty" that is owed by the establishment owner to his patrons.

So when can someone be injured and lose? One scenario presented itself in Darlene Johnson v. Super 8 Lodge-Shreveport in 2008. Mrs. Johnson and her father were guests staying in a Shreveport, Louisiana, Super 8 Lodge hotel "Jacuzzi Suite" after evacuating their home as a result of a hurricane. Like most hotel rooms, this one had a television for guest use. Unlike many, this suite's TV was positioned at a 90 degree angle to the bed, making it awkward to view while laying in bed but designed to be comfortably viewed from the provided couch. The hotel was aware that not all guests preferred to have the television facing the bed and offered a service moving the entire entertainment center around for them. While the majority of guests didn't request it, it wasn't an unusual request. In fact, Mrs. Johnson was aware of this service and had requested it multiple times during her stay. However, during this incident, Mrs. Johnson did not request the entertainment center be moved. Instead, she attempted to do it herself and was injured as a result of the television falling on her. She subsequently sued suggesting the television should have been secured to the entertainment center with a pivoting platform, as they should have anticipated a guest trying to move the TV themselves.

The crux of the debate is a matter of what level of duty was owed to their guests by the hotel operators. Duty is a technical term in negligence law that sets the lowest obligation that someone owes to someone else in a situation. A hotel is required to exercise "reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition." While they are not required to absolutely guarantee the safety of guests, hotels must be careful to keep them from anticipated injury. To succeed in a suit such as this, a guest needs to demonstrate that the television was in the hotel's custody, that it created an unreasonable risk of harm to others, and that something about the defective condition caused the damage. The court ruled in favor of the hotel.

So how did Mrs. Johnson lose? She was injured by a device owned by the hotel, this should have been easy, right? The hotel even confirmed they recognized people would want the television moved. However, duty isn't that simple as it requires asking if the defending party should have been expected to protect the injured from the specific injury. The court recognizes that there is nothing inherently dangerous about a waist-high television. After all, people are seldom injured by hotel televisions. In fact, it was perfectly stable when used facing the couch, as intended. As a result, Mrs. Johnson's suggesting that the television should have been on a pivot to prevent her injury was found to be an unreasonable requirement to ask of a hotel operator.

Does this mean anytime you are injured in a hotel room you are out of luck? Not at all. The key issue here was Mrs. Johnson taking it upon herself to rearrange the room, especially while knowing someone could have done it more safely for her. Perhaps if the hotel had refused to move the entertainment center when asked, if the patron hadn't been aware of the option or if the television couldn't have been viewed from any commonly used point in the room, then this case could have ended differently for her. Every case is decided on subtleties and nuances just like this, providing even more rationale of why an attorney is important in the wake of an injury.

Continue reading "When is a Hotel Responsible for the Injury of a Guest?" »

On a June night in 2006, Jeryd Zito was driving on a highway going through Plaquemines Parish when an ambulance appeared seemingly out of nowhere. Zito swerved to avoid it, but was not fast enough, hitting the left back corner and the left side of the ambulance. After the accident, Zito sued the owner of the Ambulance, Advanced Emergency Medical Services, Inc., and its insurer, to recover for the damage caused by the accident. While this may seem backwards, the person causing an accident suing, but the issue is much more complicated.

Zito claimed the accident was Advanced’s fault because the drivers were negligent in not taking the proper precautions to warn oncoming traffic that the ambulance was broken down on the side of the road. During the trial, the big issues were how far into the right lane, if at all, the ambulance was, and if there were any warnings on it, such as reflective tape, to signal to oncoming drivers there was something in the way. The rationale is that, while the vehicle was off to the side of the road, people are not expected to see in the dark or sense a blockage up ahead versus a general expectation of reasonable efforts being made to avoid accidents.

The trooper who investigated the accident testified that based on skid marks, the ambulance was parked five feet from the right lane, it was covered in reflective tape when he got there, Zito told him that he (Zito) was on his cell phone at the time of the accident and that there was no evidence that Zito tried to break before he hit the ambulance. The trooper issued Zito a citation for careless operation of a vehicle, which Zito paid without dispute.

When it came to facts relating to Zito, many items were unclear. Between various prescription medicines and a lack of clarity on the part of Zito as to what he was doing, if anything, with his phone at the time the accident occurred, a significant amount of clarity existed. Zito’s friend Gauthier testified that he was driving along the same road a little before Zito and the ambulance was out of the right lane of traffic enough for Gauthier to be able to stay inside the right lane and had reflectors on so he was able to see it from about 200 to 300 feet away.

Despite these facts, the district court found for Zito, awarding him $50,000 plus costs and interest. The court “found” that Gauthier had to swerve to avoid the ambulance and that the ambulance was blocking traffic with nothing to signal it was blocking the lane, thus holding Advanced accountable for being negligently parked in the roadway while Zito was not considered even partially at fault for the accident.

Advanced appealed up to the Supreme Court of Louisiana, which reversed the ruling for Zito. The court can only reverse based on questions of fact, such as whether the ambulance had reflectors on, if they find the trial court was manifestly erroneous in its findings. Here, the district court was manifestly erroneous because its “findings” were contrary to the actual testimony. Gauthier did not say he had to swerve to avoid the ambulance, just that he moved over in his lane, but he did say that it had reflectors on and he could see it from at least 200 feet, which the trooper’s testimony backed. Even Zito’s testimony did not help his case, as he said he was on prescription drugs and he was inconsistent with his story about whether or not he was on the phone.

Louisiana’s Supreme Court reviewed the trial record and concluded the district court’s factual finding that the ambulance was not completely out of the lane of travel was not reasonable. The Supreme Court found there was nothing on the record that could support the trial court’s finding that Advanced’s negligence was the cause of the accident, and that it was Zito’s fault. This case helps explain why people who lose lawsuits appeal, regardless of role in the proceedings, because there are always the possibility that the lower court’s finding will be reversed. By hiring a qualified attorney, the original trial is navigated easier, but also allows for the appeal process to be managed by an expert in the field.

Continue reading "Appeal Necessary in Car Accident Case Where District Court's Finding of Fact Strays" »

According to a provision of the Louisiana Medical Malpractice Act (LMMA), a medical malpractice claim against a private health care provider is subject to dismissal on an exception of prematurity if the claim is not first presented to a medical review board.

In the 2012 case Matherne v. Jefferson Parish Hosp. Distr. No. 1, the plaintiffs sought damages for an injury Mrs. Matherne received when she fell while being transported by an employee to her hospital bed. The hospital argued that the petition was premature because the claim was not first presented to the panel. The court sustained the exception.

When a dismissal for prematurity is without prejudice, it is as though the suit was never filed, and a plea of prescription may follow. Prematurity measures whether the cause of action is ripe for judicial determination.

According to La. Civ. L. Treatise, Tort Law § 15:5, the purpose of statutes requiring board review is to separate frivolous claims from those with merit, to alert attorneys and the claimant to the weaknesses of their position, to reduce the cost of litigation, to expedite the disposition of cases, and to encourage settlement with meritorious cases.

The panel is composed of four members: three licensed health care providers, and one attorney, whose role is purely advisory and who does not vote. The claimant chooses one health care provider panelist, the defendant chose another, and the remaining provider is chosen by the first two. If only the defendant is a specialist, then all must be from that specialty. The panelists sign an oath of impartiality, and deliberate in private. They are presented with evidence in written form only, and have a duty to request any information if necessary.

Within 30 days of reviewing or no more than 180 days of selection of the final panelist, a decision must be reached on whether the standard of care was met. If the panelists find negligence, they must then decide whether it caused the injuries. The panel must give written reasons for its decision. The opinion is admissible at trial, but is not conclusive. The parties may also call the panelists as witnesses.

The burden of proving prematurity is on the mover, and therefore, the hospital must show that it is entitled to a review panel. The court first contemplated wither the claim fell within Louisiana's statutory definition of malpractice: an unintentional tort or breach of contract based on services rendered by a health care provider, including failure to render services timely and the handling of a patient, including loading and unloading of a patient. The Louisiana Supreme Court notes that the LMMA applies only to claims "arising from medical malpractice," and that all other liability is governed by general tort law. A de novo review was appropriate as a question of law was underlying the issue of whether a claim pertains to medical malpractice.

By incorporating the case precedent of Coleman v. Deno, the court found a multi-factor test to determine whether an act is covered: 1) whether the wrong is "treatment related" or caused by a dereliction of skill; 2) whether the wrong requires expert medical evidence to determine whether a standard of care was breached; 3) whether the act or omission involved assessment of the patient's condition; 4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is license to perform; 5) whether the injury would have happened if the patient had not sought treatment, and 6) whether the tort was intentional.

By applying the factors to the present case, the court determined that the act was covered by the LMMA. First, the hospital's fall prevention program, which requires a risk assessment for all patients, should have been implemented in treating the plaintiff. Second, medical evidence was deemed necessary to determine whether the standard of care was breached. The third factor is met, as the hospital required an assessment of all patients to determine their fall risk factor. The fourth factor was met as the injury occurred during the scope of licensed activities. Fifth, if the plaintiff had not sought treatment, the fall would not have occurred. Finally, Mrs. Matherne does not claim that the actions were intentional.

Although all the factors are satisfied, the patient relied on a 2003 case, Jordan v. Stonebridge, to insist that her claim did not fit the definition of medical malpractice. But that case was not applicable, as the treatment was not received at the nursing home, and an assessment of the condition was not required. The exception of prematurity granted was affirmed based on the application of the six Coleman factors.

Continue reading "LMMA’s Medical Review Board and How “Medical Malpractice” is Defined" »

Many floors were damaged in Hurricane Katrina. A Louisiana, jury was asked the question: when a floor is rotten, who is at fault when a person visiting the home is harmed?

Juries are often asked to determine liability for an accident. When a person is injured, a jury determines who is liable by listening to both sides of the story and determining who was at fault. If the liable party is insured; insurance companies have to pay big dollars to the person injured. Determining who is at fault can be very difficult.

Sharon Lewis was visiting her father, Clifton Lewis, when she sustained a fall in her father’s home in Marrero, Louisiana. Sharon was walking on the floor in the dining room when she stepped into a soft spot. The floor collapsed and her foot fell through the floor, causing substantial injuries.

Before the accident, Sharon was very active. She would spend her time visiting her children and grandchildren. Following the accident, Sharon Lewis was unable to complete daily activities, including cooking and cleaning, because of the pain from her injuries.

Sharon blamed her father for her physical pain and damage. Her father, Clifton Jones, is insured by Allstate Insurance Company. If Clifton is found to be at fault, his insurance company becomes liable for her damages. Clifton was living in the home for over fifty years, and therefore, Sharon believed her father should have known about the soft spots and should have warned her of the danger. Clifton Jones' other daughter, Lana Thompson, also testified that Clifton Jones was aware of the damage. Lana stated that Clifton had made a claim with Allstate for damage to his home following Hurricane Katrina, and that she was present when the insurance adjuster visited the home. There were holes in the floor. Lana stated that Clifton was aware of the soft spots and holes.

Clifton Jones passed away before jury trial. Despite objections by Sharon, the trial court allowed Clifton’s recorded statements be played for the jury as evidence. In the recording, Mr. Jones stated that the floor in his home was damaged by Hurricane Katrina but he did not know the floor was rotten and did not know he has a duty to warn his daughter of the condition. Lana Thompson also provided testimony in support of Clifton. Lana testified that Sharon fell through a different part of the floor in a nearby area of the same room and Clifton was not aware of holes in that particular area.

The jury determined that Clifton and Sharon needed to share responsibility for her damages. Following trial, the jury determined Mr. Jones was negligent and this was a contributing cause to her injuries. His fault was determined to be at 50%. The jury also found that Sharon’s own negligence contributed to her injuries; and her fault was determined to be 50%. Ultimately, Sharon Jones was awarded $40,000 in general damages and $7,500 in medical expenses.

If you have been injured call the Berniard Law Firm today to speak with an attorney immediately.

It may be common sense that a person is responsible for consequences caused by their actions. One reflection of this common understanding in legal principles, referred to by lawyers as the “Egg-Shell Skull” Rule, may lead to financial burdens unexpected by people who can be deemed responsible for the events. To understand this Egg-Shell Skull Rule, it is first necessary to know the importance of “causation” in pining legal liabilities to a person.

In situations where a person’s behavior has caused someone else to suffer loss or harm, causation is a crucial element of liability because it connects an injury to a responsible party. This makes sense because if A hit B in the arm and B suffered a fracture, naturally A would be responsible for the injury. Yet if A threw a light kick at the shin of B, who, unknown to A, had a series condition that set of a chain of events that finally resulted in B unable to use his leg at all, A may find herself held responsible for this grievous injury.

The Egg-Shell Skull Rule literally means that if B had a skull as delicate as that of the shell of an egg, and A, unaware of this condition, injured B’s head, causing the skull unexpectedly to break, A would be held liable for all damages.

The Third Circuit Court of Appeal in Louisiana recently illustrated this rule in Augustine v. State Farm Mutual Automobile Insurance Company, et al. In this case, the seventy-four year-old Mrs. Augustine was driving at about ten miles per hour in her 1995 Mercury Grand Marquis. Her vehicle was struck from the rear by a Mini Cooper driven by Ms. Coston. Although the accident caused no physical damage to either vehicle, Mrs. Augustine was awarded damages at $50,000 at trial.

The amount of damages awarded for this low-speed, possibly also minor, accident was the direct corollary of the application of the Egg-shell Skull Rule. Prior to the accident, Mrs. Augustine testified that she had arthritic pain three times a week or everyday if there was a flare-up of symptoms. After the accident, however, she said that she experienced pain on a more frequent basis and on a more severe scale.

Having heard conflicting expert testimonies on Mrs. Augustine’s medical conditions, the trial jury believed that she did suffer an aggravation of her pre-existing conditions and awarded her damages for both past and future pain and suffering. The Court of Appeals, operating under the high legal hurdle that it will not reverse trial court’s fact finding unless clearly erroneous, affirmed the $50,000 judgment.

Unaware of this rule, one in Mrs. Augustine’s circumstances may not seek maximum damages to her injury while someone in a similar position as Ms. Coston’s position may be dumbfounded to find herself in unexpected financial burden. The most important fact, though, is that your legal representation clearly understand the injury suffered and make claims open to all suffering reached.

According to an American Law Report, it is generally the rule that the owner or occupant of a property touching a public sidewalk does not, solely by reason of being the owner, owe to the public a duty to keep the sidewalk in safe condition. This rule of nonliability is not affected by a statute or ordinance requiring an abutter to construct or maintain an adjoining sidewalk, unless there is an express, contrary provision.

However, the abutter will be liable for injuries resulting from a defective or dangerous condition that is created by his or her own acts, which constitutes negligence or a nuisance under the circumstances. For example, an abutter may be liable for injuries resulting from negligent construction, alteration, or repair of the sidewalk, even though these acts in and of themselves do not create liability.

The courts have usually considered compliance with the requirements of a statute regulating the construction of sidewalks. In a number of cases, knowledge or notice of the defect is a factor for liability, although the courts in many other cases have not treated this issue, given the fact that knowledge or notice of a defect on a sidewalk, as well as its direct cause, is difficult to ascertain.

Louisiana falls into this majority, with cases such as Legg v. Palozzola, in which one who knowingly constructed a dangerous sidewalk was liable, as well as Youngblood v. Newspaper Production Co. and Lee v. Baton Rouge, in which abutters were liable when they were the cause of a defect in or obstruction on the sidewalk.

Again, in a 2012 case, Benson v. Women's Aglow Fellowship, the Court of Appeals affirmed a summary judgment dismissing injury claims. After parking to attend a service at an adjacent church building, the plaintiff unloaded at a curb in from of the defendant's home. When the plaintiff later approached the car, she did not trip, but rather stepped into a depression in the cement curb and turned her ankle.

The City owned and was responsible for the curb. Photographs indicated that the curb is slanted and that a small pipe, which is recessed into an expansion joint, runs underground from the defendant's property to the curb. There was no presence of water, and the plaintiff testified that the depression was covered with direct and grass at the time.

The defendants argued that the pipe was there when they bought the property and that they had nothing to do with its installation, nor the maintenance of or defect in the curb. The court applied the common-law rule by citing Butkiewicz v. Evans, in which the burden for tort liability resulting from a defect in a public sidewalk is placed with the municipality, not the landowner. Louisiana case law held true to the majority rule, as Schully v. Hughes held that a property owner is generally not responsible for repair or maintenance, except where they cause the defect in the sidewalk.

Given the defendants' denial, the plaintiff was required to present evidence that they did in fact cause the defect in the curb. Although the injured woman's husband entered the scene immediately after she fell and took pictures the following day, there is nothing to suggest that an essential element of their claim could be established at trial. There is no issue of material fact and summary judgment was granted.

Summary judgment is appropriate when there is no dispute as to a material fact, and where there is no factual support for one or more of the essential elements of the claim. Therefore, because the claimant did not provide evidence to show she could meet the burden of proof at trial, specifically that the property owners caused the chip in the curb, there is no genuine issue of material fact and the claims are dismissed.

Continue reading "Property Owners Not Liable Unless They Caused Sidewalk Defect" »

Many people wonder what can be done from a legal standpoint to get a better verdict. In situations involving accidents where the damages awarded don't fully cover the perceived damage, it would be prudent to appeal your verdict. However, before any action be taken, it is crucial to note the role of the Appellate court and its scope of power in reviewing a damage award. This is important for two reasons: (1) to keep expectations realistic and (2) to highlight the pertinent actions to be taken after an injury.

Trying to get a damage award amended on appeal can be an uphill battle, but it is possible. To better understand this amendment process, a recent attempt to amend a general damage award provides a solid example.

In December of 2007, Shirley Langley was the victim of a bee sting, resulting in a severe allergic reaction. She was admitted to American Legion Hospital in Crowley, LA, where the hospital medical staff improperly administered epinephrine to Mrs. Langley, resulting in, amongst other ailments, permanent damage to her heart.

Mrs. Langley sued the hospital in the 15th Judicial District Court for her injuries and was awarded $25,000 in general damages. Mrs. Langley, unsatisfied with the amount, subsequently appealed the decision, stating that the awarded amount was excessively and abusively low considering the severity of the physical and emotional damages she sustained and because in other situations mirroring her own, higher general damages awards have been given.

On appeal, Mrs. Langley provided evidence to the court chronicling her visits to four separate doctors assessing her damages stemming from the improperly administered epinephrine. She testified that some of her doctors recommended she receive additional treatment and testing but she did not follow these suggestions. These recommendations were made to Mrs. Langley over a year before the trial took place. Therefore, a substantial amount of time elapsed between her doctors visits and the court date, during which time Mrs. Langley sought no medical attention.

Judge Elizabeth A. Pickett, the presiding judge on the case, agreed with the trial court's determination that "the medical evidence... clearly shows [Mrs. Langley] experienced physical pain and psychological distress during the episode and continued to experience psychological distress after the episode... but concluded [that] Mrs. Langley
did not prove she continued to suffer such pain and/or distress at the time of trial."
Because Mrs. Langley's injuries could be seen as not being so extensive as to warrant any damages exceeding $25,000, the court determined that the trial court exercised proper discretion in its determination of the general damage award.

When appellate courts review a general damages award, their duty is not to consider whether or not the award is appropriate given the circumstances, but rather to review the exercise of the discretion of the trial court. Furthermore, trial courts are given wide latitude and discretion in when awarding general damages. It is important to, simply put, get it right the first time - meaning to do whatever it is you can to show the court that the injuries you sustained are not minor and require medical attention, and that you attempted to mitigate your damages. It is very possible that your damage award can be decreased for failure to mitigate damages.

So how do you make sure the court is aware that your injuries are serious? This can be done by simply adhering to the advice of your doctor or physician post injury. If your doctor recommends you take further tests, take further tests; if your doctor recommends a certain type of treatment, take the treatment. By adhering to the counsel of your doctor or physician, when a court is looking over your general damage award they are more likely to come to the conclusion that the injuries you sustained were serious enough to warrant reconsideration of your initial damage amount. In a situation where an individual does not seek out additional treatment or testing advised by a doctor, a court reviewing the damage award may conclude that the injury sustained by the individual is not extensive enough to warrant consideration, which is what happened with the case of Mrs. Langley.

If you have been injured, awarded general damages, and feel that you are entitled to a more favorable damage award, contact the Berniard Law Firm today.

The plaintiff in Susan Michelle Canon v. Harry B. Towns, et al. recently lost her appeal from a judgment from the Parish of Calcasieu, dismissing her claims against the defendant North Carolina boat sellers in the case for lack of personal jurisdiction. If a court does not have jurisdiction over a party in a case, it will dismiss the claims against that party. Failure to choose the proper court can prevent the success of a valid claim and lead to wasted time and money.

In need of a shrimping vessel to start a business in Louisiana, the plaintiff in the case, Ms. Canon, discovered a boat advertised for sale on the website NoBoatBrokers.com. The listing provided a North Carolina phone number for the sellers, Raeford and Jennifer Millis, which Ms. Canon used to initiate negotiations. These negotiations resulted in Ms. Canon transferring funds from her bank in Louisiana to the seller's bank in North Carolina to pay for the boat. After traveling to North Carolina to finalize her purchase, Ms. Canon released the uninsured boat to the custody of her Louisiana boat captain and one crew member, both of whom oversaw the boat run aground repeatedly after leaving Sneads Ferry, North Carolina until its ultimate destruction as a result of catching fire in Florida.

The North Carolina boat sellers, the Millises, objected to the Louisiana court's exercise of personal jurisdiction over them as defendants. In accordance with procedural rules that must be followed in civil law suits, a court must have jurisdiction over the “person” for the court to exert its authority over that defendant. Louisiana refers to its rules of civil procedure as the Code of Civil Procedure (CCP), and courts in the state may refer to prior state and/or federal case law to interpret specific provisions of the Code. Louisiana addresses issues of personal jurisdiction in CCP 6. The only limit on the state's exercise of personal jurisdiction are those imposed by the due process requirements of the constitution, and in the case of non-resident defendants, there must have been sufficient contact with the state to support that court's assertion of personal jurisdiction over that defendant. The trial court did not find the Millises' contacts with Louisiana sufficient to assert jurisdiction over them and dismissed the claims against them.

Ms. Canon appealed the trial court’s dismissal of her claims against the Millises, and the appeals court began their de novo review of the legal question of whether personal jurisdiction over the Millises could be established by a Louisiana court with La R.S. 13:3201, the Louisiana long-arm statute. Louisiana’s long arm statue contains specific acts and conditions that allow the state to exercise of jurisdiction, as well as a provision that authorizes jurisdictional assertion to the full extent allowed by the U.S. Constitution through 13:3201(B) which provides in part “a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.”

The court of appeals proceeded to evaluate Louisiana’s authority to assert personal jurisdiction over the defendant boat sellers by considering the Millises' contacts with Louisiana, and found them insufficient to support the assertion of either specific or general jurisdiction. The court found that the Millises' acts of providing a North Carolina phone number as contact information in an Internet advertisement listing the boat for sale on a third-party website that was accessible by anyone anywhere with internet access was not directed at Louisiana and did not specifically target consumers in the state. Further, contact with the defendants was initiated by Ms. Canon, and "[e]verything connected to the sale occurred in North Carolina."

While upholding the trial court’s decision to dismiss Ms. Canon's claims against the Millises for lack of personal jurisdiction, Ms. Canon is still free to pursue her claims against the Millises in a court that can properly assert personal jurisdiction over the defendants, should she choose to do so.

There are many decisions that, once made can significantly affect the outcome of the case. If you are facing litigation, contact the Berniard Law Firm. Our firm provides expertise in situations where nuanced procedural rules are in play, and offers guidance to avoid procedural missteps.

Continue reading "Jurisdiction Crucial in Lawsuit Involving Boat Sale" »

The duty owed by hospitals to patients is a rather cut and dry area of law. However, a case arising out of West Monroe, Louisiana, illustrates how questions of liability become more difficult when the patients' visitors are involved. Although a hospital does owe a duty of reasonable care to its visitors, the key is whether there is an "ease of association" between that duty and the risk of harm. Liability will therefore often turn, not on the factual issues of a case, but whether the risk of harm to the visitor is within the scope of that duty.

This was the matter before the Louisiana Second Circuit Court of Appeal in Vanderpool v. Louisiana Extended Care Hospital. The case involved a visitor who was injured after her mother fell off a commode chair. The patient's daughter was helping her mother onto the chair when the arm gave way. Unable to support her mother's weight, the daughter fell to the floor and sustained injury. The trial court granted summary judgment to the defendant hospital, meaning there was no issue of material fact and a decision could properly be made without the need for further deliberation.

Reviewing summary judgment for a hospital's liability usually begins with consideration of the hospital's legal duty. This was the primary determination in Vanderpool, where the appellate court first addressed the hospital's duty to the plaintiff visitor. While the hospital had a duty to maintain the commode chair in safe working order and to take other steps to protect the patient, the patient's visitor was not similarly protected. As the court reasoned, "The hospital’s duty to exercise reasonable care for the safety of visitors would not encompass the unlikely risk that a visitor would sustain an injury in connection with a patient using a commode chair." The point of a duty of care is not to protect against all possible instances of harm that could arise.

Of particular note in this case was the fact that the plaintiff visitor's decision to help her mother was voluntary. Even assuming the validity of the facts alleged, the court found that the particular circumstances of the incident gave rise to no duty of care to the visitor plaintiff. For this reason, the appellate court held that the trial court's determination of summary judgment was appropriate.

The court turned next to the hospital's duty of care as the owner and custodian of the commode chair. Central to this analysis was whether there was a defect in the chair that posed an unreasonable risk of injury to the plaintiff visitor. The hospital was able to show that the plaintiff would be unable to demonstrate such a defect. In turn, plaintiff invoked the legal doctrine of res ipsa loquitur, which essentially alleges that the nature of an accident is such that it could only have occurred through negligence. But because res ipsa loquitur relies upon a circumstantial determination, the court noted, it does not apply where direct evidence is available - namely, Vanderpool's own account. The fact that the chair "gave way" under the plaintiff's mother's weight does not necessarily mean it happened because of a defect. Another explanation is plausible, so res ipsa loquitur was inapplicable.

Up to this point the appellate court was giving the plaintiff visitor the benefit of the doubt regarding her factual claims. Aside from the above considerations, the summary judgment hearing determined that plaintiff could not prove those claims anyway. She was the only eyewitness to the alleged injury; sought medical treatment more than a year after the incident; and her injuries were not documented in the medical charts concerning the mother's fall. The plaintiff's "allegations and uncorroborated, self-serving testimony" were simply not enough to rebut the motion for summary judgment.

Continue reading "Injury at Hospital Examines Liability and Duty" »

To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker's compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker's compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker's compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker's compensation program should be handling your claim, not the court.

A situation exploring these circumstances happened in Pineville, Louisiana, in 2009. A worker was leaving her parking spot after completing her shift when she was hit by a van operated by another worker. The worker who was hit filed suit against the business and the worker operating the van. The business objected, stating that she should be filling out paperwork for the worker's compensation claim, not trying to bring the business into court. The trial court agreed and dismissed the case.

However, the appeals court disagreed and reversed the lower court. The time, place, and manner restrictions were important in this case. The worker who was hit was actually leaving her shift. She was not working for the business at the time and was not on the clock. Although she was in the parking lot, she was not acting within the scope of her employment and would therefore not be covered by the worker's compensation program. If the accident had occurred while she was still clocked in, then the result would be very different.

The difference of half an hour allowed that worker to have her day in court. Although litigation is time consuming for both parties, if a worker sues then she may get a jury and that jury may award damages that are significantly higher than what the employee would have gotten under the worker's compensation claim. Businesses are also more likely to settle because they want to avoid the “bad press” of going to trial. Both of these reasons make taking the claim to court much more appealing for the employee, but not the employer.

Whether you are dealing with a worker's compensation claim or want to take your claim to court, you need to be mindful of the time, place, and manner restrictions. They can make or break a case.

Continue reading "Understanding Duty Important in Worker's Compensation Claims, Civil Suits" »

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case's topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms
Assertive Conduct:
Words, either oral or written, can constitute hearsay if intended as an assertion or detail to be considered factually correct. Also, action or conduct could be considered as assertion even when technically, no words have been spoken. When wordless behavior has expressive and communicative intent or purpose, it too is subject to hearsay. One example of assertive action or conduct is nodding one’s head in answer to a question as it is a wordless statement that is offered to prove what it asserts.

Non Assertive Conduct:
Usually, conduct does not necessarily assert anything and where conduct is apparently non-assertive, it is likely to be treated as non-hearsay. Conduct is hearsay if the person engaging in the conduct probably intended it to assert a fact observed. For example, a woman testifies that her mother complained of a smell in her home and had health troubles, pointing at her throat like it was difficult to breathe. If the mother is unable to testify at trial, the pointing is (potentially) hearsay since it is meant to assert a fact observed - that the health problem was in the throat/upper head area. Such issues are easily applicable in Chinese drywall cases, mesothelioma, asbestos-concerns, etc.

While these items seem simple and obvious, the reality is there are very unique reasons for why hearsay can be excluded. The four important hearsay risks are misperception, faulty memory, misstatement/ambiguity/faulty narration and distortion. There are key reasons as to hearsay is excluded from evidence are as follows. Firstly, there is an absence of cross-examination. This one is the most important because credibility of the statement cannot be tested by cross-examination. In State v. Brown, the Louisiana Supreme Court stated that “the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” Absence of demeanor evidence- the meaning of a person’s assertion can change depending on the person’s demeanor while making the assertion. Thus, without being able to see a person’s demeanor when an assertion was made, the meaning may be lost or confused. Lastly, the fact that the absence of oath in hearsay statements is another reason for exclusion. Granted, there are exceptions to the rule against hearsay and cross-examination and oath are sometimes requirements for an assertion to fall within one of these exceptions. One can refer to the Louisiana Code of Civil Procedure to see the exceptions to the hearsay rule and assertions that are not considered hearsay.

When hearsay is ruled admissible or inadmissible in trial court, this is considered a ruling on the admissibility of evidence. Such a ruling is a question of law and is not subject to the manifest error standard of review. Parties to a suit cannot complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling “affected” a “substantial right” of the party. For example, in the Louisiana Supreme Court Case, Trascher v. Territo, the defendants argued that their substantial right was affected when in the district court, a video deposition was deemed admissible. In that case, the substantial right that was affected by the evidentiary ruling was the defendants' right to cross-examine the witness against them.

All of this is rather dense content for most people and is provided more as a way to navigate the content than anything else. Hearsay is a very important component to consider when any elements of the case involve testimony from a third-party regarding an experience of the defendant or plaintiff. Whether in a civil or criminal case, these statements need to be examined carefully by a qualified attorney who is sure to get information across in a manner that avoids hearsay exclusion.