glass-2-1543598-1-1024x683Often in a discussion of tort law, the determination of whether an environment is reasonably safe is left up to the trier of fact in a particular case.  Often, the trier of fact is a jury who listens to the evidence of the case and returns a verdict about the cause of the plaintiff’s injuries. But how much discretion does a trier of fact actually have to determine the standard of reasonableness and whether or not the defendant breached this standard? A case from the Louisiana Third Circuit Court of Appeal discusses the standards by which an appellate tribunal must review a jury’s finding when the factual basis for the jury’s finding is called into question.

On March 16, 2006, Chermaine Dibartolo, a cosmetology student, was cleaning the “glass room”; a roughly eight foot, nine inch by ten foot, seven-inch space at Stage One-The Hair School in Lake Charles, Louisiana. Ms. Dibartolo tripped over her own bag and was injured.  At trial, the Ms. Dibartolo asserted that Stage One owed her a duty of care against such injuries and that the Stage One breached this duty. Ms. Dibartolo argued that it was typical for multiple students to be working in the small space of the glass room with their belongings on the floor, thereby creating a dangerous environment that led to her injury. Unfortunately for Ms. Dibartolo, the jury disagreed and returned a verdict in favor of Stage One.

Ms. Dibartolo moved for a judgment notwithstanding the verdict (a motion seeking the trial judge to reverse the jury’s findings and reverse or amend the verdict) or a new trial. Her motion was denied. She then appealed on three grounds, arguing that: (1) the jury erroneously found no defect in the glass room itself; (2) the jury erroneously concluded that Stage One did not know that there was an unreasonable risk of harm; and (3) the jury erroneously concluded that the defect she alleged existed in the glass room did not cause her to fall.

supreme-court-new-york-1206406-1024x681What happens in Baton Rouge if your Lawyer does not file your lawsuit appeal on time?  You could lose that appeal.  The following case demonstrates that Louisiana Courts follow strict procedural rules when it comes to filing for request for new trial. The best lawyers in Baton Rouge know these rules, so choose your lawyer wisely.

According to the Louisiana Code of Civil Procedure article 1974, parties to a suit have seven days, exclusive of legal holidays, to apply for a new trial. The time starts to run the day after the clerk mails the judgment or the sheriff has serves the judgment. On October 10, 2012, a judgment was signed against defendant Clarence T. Nalls in the 19th Judicial District Court of East Baton Rough, Louisiana. Notice of the judgment was mailed to both Mr. Nalls and his attorney two days later, on October 12, 2012. Mr. Nalls then proceeded to file a motion for a new trial on November 15, 2012, which was subsequently denied because of its untimely nature.

On September 19, 2013, Mr. Nalls filed an order for suspensive appeal from the judgment denying his motion for a new trial. The Louisiana First Circuit Court of Appeal issued a rule on June 5, 2015, ordering the parties to show cause as to whether the appeal should be dismissed as untimely. Mr. Nalls filed yet another untimely response to the rule to show cause, claiming that his motion for a new trial was timely and had therefore, suspended the appeal delays.

contract-1426885-1024x768A case arising out of the State of Louisiana First Circuit Court of Appeal considers whether defendants should have been permitted to raise certain peremptory contractual exceptions in the trial court: namely, objections of prescription, peremption, no cause of action, no right of action, and a dilatory exception of vagueness. See LA. C.C.P. Art. 927.  Unfortunately for the Plaintiffs, the trial court sustained all of defendant’s exceptions, and dismissed their case.

The case involved two plaintiffs Ryan and Vicki Williams—who entered a contractual agreement with Genuine Parts Company to reopen and operate a previously closed NAPA Auto Parts store in Ponchatoula, Louisiana. The Plaintiffs invested approximately $60,000 to start up the store, and obtained a six-year loan guaranteed by the Genuine Parts Company for the remainder of the costs. Plaintiffs were later offered the chance to operate another NAPA Auto Parts store in Hammond, Louisiana, but when plaintiffs declined that opportunity, Genuine Parts Company contracted with Jeffrey Boone to operate that Hammond store instead. After that, plaintiffs were told their financing would not be renewed, because of their NAPA store’s declining performance. When plaintiff’s loan matured, Genuine Parts Company acquired it, and liquidated plaintiff’s store inventory. Plaintiffs then filed a lawsuit for damages, because of the alleged unfair and deceptive practices by Genuine Parts company and Jeffrey Boone. In its response, Genuine Parts Company filed the peremptory exceptions mentioned above. Mr. Boone also adopted the same exceptions in his response. The trial court granted all exceptions and dismissed plaintiff’s case, so plaintiffs appealed.

Defining the Exceptions

wall-bank-1482317-1024x768Summary judgments are procedural devices used when no genuine issue of material fact exist that should be litigated in a full trial. The burden of proving that there is no issue as to material facts is on the party who is seeking the summary judgment. Once the moving party establishes that no genuine issue of material fact exists, the burden then shifts to the opposing party to present evidence that indicates that there is in fact a dispute as to material facts.  A recent lawsuit arising from Ascension Parish Louisiana discusses the standards used by courts to evaluate summary judgment motions.

In 2006, First American Bank and Trust (“the Bank”) issued a loan to Commerce Centre, LLC, (“Commerce Centre”), with an interest rate of 7.75%. The loan was secured by the guarantees of ten individuals and companies. Soon after the original 2006 loan, the Bank and Commerce Centre negotiated a subsequent 2007 loan, which included a lower interest rate, and was secured by only six of the ten original guarantors.

The 2007 loan ultimately defaulted, and the Bank filed a lawsuit seeking repayment. The lower court granted the Bank’s motion for summary judgment. The remaining six individuals and companies that were secured guarantors on the loan, appealed the summary judgment asserting that material issues of fact as to the Bank engaging in fraud existed. The main contention of the opposing parties was that the Bank did not disclose that some of the original individuals and companies that were guarantors on the 2006 loan, were no longer guarantors on the 2007 loan.

medical-school-frontispice-1214368-663x1024Pursue your claim in time or forfeit your right to recovery. That is what the Louisiana doctrine of prescription generally holds. This doctrine bars a claimant’s right of recovery when he or she fails to exercise it within a certain time period. In Louisiana, the Medical Malpractice Act governs the prescriptive period for medical malpractice actions. This statute provides two options as to the starting point of the prescriptive period: the date of the alleged tortious act or the date of the discovery of the tortious act. This second option is known as the discovery rule, and was recently discussed by the Louisiana Third Circuit Court of Appeals.

In November of 2010, Don Wright underwent hospitalization due to endocarditis. After being released from the hospital in December 2010, Mr. Wright continued to suffer from medical complications. Just a few days after his release, he was admitted to the emergency room of Christus St. Francis Cabrini Hospital in Alexandria, Louisiana with symptoms of stroke. According to Mr. Wright, his condition continuously deteriorated, resulting in a seizure and the discovery of a major left-side bleed due to the hospital’s negligent use of the blood thinner, Heparin. Mr. Wright became paralyzed on his left side and is unable to verbally communicate.

On December 15, 2011, Mr. and Mrs. Wright filed sent a letter to the Commissioner of Administration, requesting the formation of a Medical Review Panel to consider malpractice actions against his healthcare providers. On July 26, 2013 the Wrights drafted another letter titled “First Supplemental and Amending Complaint Letter,” which they intended to replace the complaint letter filed in December 2011. Two of the defendants named in the Wrights’ complaint, Nurse Practitioner Craig Manzer and Dr. Gary P. Jones filed an exception of prescription, arguing that the time period for the allegations in the Wrights’ complaint had elapsed. The Trial Court granted these defendants’ exceptions of prescription and dismissed the plaintiffs’ claims against them. The Wrights appealed, arguing in part that the Trial Court erroneously found that the prescriptive period applicable to Mr. Manzer and Dr. Jones started on November 30, 2010 and December 4, 2010, respectively.

golden-money-1-1237210-1024x974If a person defaults on student loan payments, the loan issuer can obtain a order from the court, directing an employer to withhold money from the person’s earnings until the defaulted loan has been paid in full. A Bossier Parish School Board (“BPSB”) employee stopped paying her student loans. In order to recover the default amount, the student loan company hired a collection agency, Pioneer Credit Recovery Inc. (“Pioneer”) top. Pioneer sent BPSB an order from a court (making them a garnishee) requiring it to deduct the employee’s earnings to a sufficient amount to make payments on the loan. BPSP complied, taking money out of the employee’s paycheck monthly, until the default amount was completely satisfied.

Once the loan was paid off in full, Pioneer sent BPSB notice stating it could stop the deductions from the employees wages. BPSB complied with the release order and ceased deducting any further funds from the employee’s paycheck; however, BPSB continued sending Pioneer money as a result of a clerical error. The error went on for some time, so long that BPSB overpaid over five thousand dollars of its own funds. Upon discovering the error, BPSB demanded a refund from Pioneer in the amount it had overpaid. Pioneer replied that since they already sent the overpayments to the employee they had no further obligation to pay BPSB back. Based on a belief that Pioneer still had an obligation to refund the money, BPSB filed a lawsuit to recover the overpayment and the case proceeded to trial.

In support of its claim, BPSB presented an argument based on a theory of payment for a thing not owed. See La. C.C. arts. 2299  and 2300. Pioneer did not deny that it received the money; however, they argued BPSB was at fault for failing to comply with the rules for withholding and further they ignored the order stating they no longer had to make the payments. Furthermore, Pioneer argued that all overpayments had been refunded to the employee under the mistaken belief that it was hers. The trial court agreed with BPSB holding that Pioneer had received a payment it was not owed and was bound by law to refund BPSB. The trial court based its decision on a finding that BPSB had made the payments, not the employee, and restoring the overpayment to the employee did not amount to restoring it to BPSB.

While many of us think of pirates as something that only exist on television or in the movies they do still exist throughout the world.  While they no longer sack and plunder ships for gold they do cause great havoc by kidnapping ships and invading oil rigs off the coast of Africa.  But can a foreigner who was kidnapped while working on an oil rig off the coast of a foreign land sue his employer under the Jones act for failing to protect him while he was working on the sea?  The following case out of New Orleans Louisiana discusses these concepts and answers that question.

Robert Croke, a citizen of Canada, was working aboard an oil rig off the coast of Nigeria. He claims that gunmen boarded the rig, kidnapped him, and then held him hostage for ten days. After his hostage experience, Croke filed a lawsuit in New Orleans Louisiana against PPI Technology Services, L.P., and GlobalSantaFe Offshore Services, Inc. According to Croke, PPI was his employer while GlobalSantaFe was another employer of rig workers. In his lawsuit against both companies, Croke’s legal theory is negligence: he argues that both companies were negligent because they did not have measures in place that would have forestalled the incident. Since Croke is a Canadian citizen, and his alleged kidnapping occurred in Nigerian waters, the district court dismissed the case under the foreign seamen exclusion provisions of the Jones Act.

Not being happy with the dismissal Croke then appealed that decision to the United States Court of Appeals Fifth Circuit. The appeals court first looked to Croke’s assertion that the district court did not properly apply the foreign seaman exclusion provisions of the Jones Act. Specifically, the court looked at the following section. 46 U.S.C. § 30105(b) which states in summary that maintenance and cure (maintenance is payment for daily living expenses and cure is for medical cost) cannot be received under federal maritime law if the injured party is not a United States Citizen and further an exclusion applies if the accident occurs in non United States territorial zoned waters.

burn-baby-burn-1229975-1-1024x768A fire at a building you own cannot only damage your property but others as well.  So what happens when a fire starts at your property and then quickly spreads to others, are you liable for their losses as well? The following case demonstrates what happens in court when a piece of real estate catches fire, causing damage to a neighboring property.

The New Orleans Fire Department was called on January 7, 2011, to suppress a fire at property owned by the Fellowship Missionary Baptist Church (“the Church”). The property encompassed the church building located at 2101 Prytania Street and a residential house located at 2113 Prytania Street. The Church had not conducted worship services on the property since the church was damaged in 2005 by Hurricane Katrina. The fire was investigated by the New Orleans Fire Department, the State Fire Marshall’s Office, and the Bureau of Alcohol, Tobacco, and Firearms. All of the agencies agreed that the cause or the origin of the fire could not be determined conclusively.

Show and Tell of New Orleans, L.L.C. sustained water and fire damages to their nearby properties, along with the owners of the Magnolia Mansion. Those parties filed lawsuits essentially claiming that the Church was negligent for its alleged inattentiveness in maintaining its property in a safe and secure manner.  Further, the Plaintiffs alleged negligence in the Church’s failure to adequately secure the church to prevent vagrants, who the Plaintiffs claimed caused the fire, from habitually entering and inhabiting the church. The Plaintiffs also contended that the building was in a state of disrepair, that the property was a public nuisance, and that it had been cited as blighted property by the City of New Orleans in September and November of 2009.  All of these problems in the Plaintiffs eyes lead to the Church being liable for the damages they sustained from the fire.

The loss of a loved one is a terrible experience that no one should have to go through.  When that loss is caused by a car accident lawsuits are sure to follow. But what if your loved one was on a demo ride sponsored by a motorcycle company when tragedy strikes, can the motorcycle company be held at fault for the accident as well?  The following lawsuit out of Lafayette Parish tries to answer that question.

In 2010 in Scott, Louisiana Ralph Doucet was participating in a “demo ride” sponsored by Harley-Davidson and Cajun Cycles when he was fatally struck by car driven by Keith Alleman. Mr. Alleman alleged that he was distracted by the demo ride and this caused his inattentiveness.  The family of the deceased filed a lawsuit naming various defendants  including the sponsors (Harley Davidson) of the event alleging claims of negligence. In response to the lawsuit Harley Davidson filed a motion for summary judgment stating that the plaintiffs could not carry their burden of proof at trial.  In the motion Harley Davidson was essentially saying that the Plaintiffs would not be able to prove they were negligent at trial and therefore they should be let out of the case now.  After a hearing on that motion the trial court agreed with Harley Davidson and the plaintiffs appealed that decision to the Louisiana Third Circuit Court of Appeals.

The appeals court task was to decide whether or not the Plaintiffs provided enough evidence to negate Harley Davidson’s arguments.  The court first looked to the standards of establishing negligence in Louisiana.  In order to establish a case for negligence the plaintiff has to prove five elements (1) that the party had a duty to the injured party (2) that the party breached the duty (3) the party’s breach was the cause-in-fact for the injury (4) the party’s scope of duty and the scope of risk (5) that there are actual damages or injuries. Pinsonneult v. Merch. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02),816 So. 2d 270.

monopoly-raceauto-1463337-1024x768Antitrust laws protect competition and prevent monopolies. Ultimately, they are meant to protect consumers by ensuring healthy competition. Yet it is a common misconception that antitrust laws protect individual competitors in the marketplace; that each unique competitor is itself the competition that antitrust laws seek to protect. False. Antitrust laws are designed to protect competition – the integrity of the marketplace in which competition occurs – not individual competitors. See Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962). This is a lesson that Felder’s Collision Parts, Inc., a Louisiana company learned the hard way.

Felder’s is a Baton Rouge based dealer of after-market auto body parts. It sells body parts that are congruent with a major auto makers (“GM”) vehicles, but are not manufactured by GM. Felder’s filed an antitrust lawsuit against All Star dealers and GM alleging that GM’s “Bump the Competition” program was an illegal predatory pricing program which violated Louisiana and federal antitrust law. This GM program allowed competitors who purchase genuine GM parts for resale to sell those parts at a price designed to be lower than the local competitor’s price for the after-market equivalent of the same part. This bottom-line price was often lower than what All Star paid GM. The program subsequently allowed All Star to not only recoup the loss, but also recover a 14% profit.

The District Court ruled against Felder in his antitrust claims, reasoning that he fell short in his attempts to sufficiently delineate the relevant geographic market and to allege below-cost pricing. Because the Louisiana law claims were dependent on the federal antitrust claims, these claims were also dismissed. Felder’s appealed, alleging that the District Court erred in adding the payback amount to the price at which All Star sold its parts to customers.