Louisiana Personal Injury Lawyer Blog

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With respect to the issue of consent obtained by Dr. Humphries, the Court of Appeals finds that the first form signed by Mr. Price should be presumed valid under Louisiana law, and Mr. Price's statement that he did not read the form does not defeat the presumption. The only way Mr. Price could have overcome the presumption would be if he was able to establish several factors: 1) The existence of a material risk that the physician must disclose, 2) The failure of the physician to inform the patient of this risk, 3) The realization of the risk, and 4) A connection between the failure to inform and the realization of the risk.

With respect to the consent issue, previous courts have held that appellate courts should focus on the duty of a doctor to provide material information to a patient according to the circumstances of the particular case. As long as the trial court has acted reasonably, their findings should not be reversed even if the appellate court would have weighed the evidence differently. Even though there is conflicting testimony, the evidence establishes that Mr. Price did receive specific information about the possibility of removing polyps immediately after they were discovered during his procedure. In addition, three of the four expert witnesses found that Dr. Humphries met the applicable standard of care in obtaining consent. As such, the Court of Appeals finds no manifest error worthy of overturning the jury's findings.

With respect to Dr. Bride, even though he himself did not obtain consent from Mr. Price (aside from supposed verbal consent just prior to the procedure), under La.R.S. 40:1299.40(C) other forms of consent are allowed when the patient is provided with general information about a procedure and risks. Mr. Price received a handout indicating that if polyps were found they might be removed. In addition, Mr. Price was informed that if Dr. Humphries found polyps he would have Dr. Bride remove them. In addition, the wording of the second form signed by Mr. Price makes Dr. Bride an "authorized physician" to perform a polypectomy because Dr. Bride is an associate of Dr. Humphries who performed the additional procedure as necessary. As such, the jury did not manifestly err in concluding it was more likely than not that Mr. Price consented to the polypectomy being performed by Dr. Bride if polyps were found. As such, the Court of Appeals affirms the jury's findings in all respects.

For any medical procedure, a doctor or other practitioner is required to obtain "informed consent" from the patient. Essentially, this means that, except in certain emergency situations, a doctor is not permitted to perform any medical procedures that the patient has not authorized him to perform. Louisiana law outlines three ways for a doctor to get proper consent from a patient. First, the patient can acknowledge in a handwritten document that he or she had been informed of "The nature and purpose of the procedure" and of its "known risks," and that he or she had the opportunity to have any questions "answered in a satisfactory manner." La. R.S. 40:1299.40(A). Such consent is presumed under the law to be valid unless there is proof that the consent was given because the doctor misrepresented material facts.

The second option for obtaining consent requires the same elements as the first, with the exception that it does not have to be in writing. However, verbal consent is not given a presumption of valididty, but instead must be proved "according to the rules of evidence in ordinary cases." La. R.S. 40:1299.40(C). The third and final option requires a doctor to disclose to the patient the list of risks for the proposed treatment that is maintained by the Louisiana Medical Disclosure Panel (LMDP). "Consent to medical care that appears on the [LMDP's] list requiring disclosure shall be considered effective under [Louisiana law] if it is given in writing, [and] signed by the patient... and a competent witness. La. R.S. 40:1299.40(E). The LMDP offers a form for this purpose, the execution of which creates a "rebuttable presumption" that the consent is valid, provided that the doctor who will actually perform the treatment is the one who gives the required disclosure.

The issue of informed consent was at the center of the case Price v. ERBE USA, Inc., No. CA 09-1076 (La. Ct. App. 3d Cir, 2010). The plaintiff, James J. Price, visited the St. Patrick Hospital in Lake Charles on January 17, 2002, where he was scheduled for a colonoscopy procedure with Dr. Charles Humphries. During the procedure, Dr. Humphries found several polyps in Price's colon, at which point he brought in Dr. Francis Bride, a gastroenterologist, to remove them. Dr. Bride's surgical tool malfunctioned during the removal of one of the polyps, which resulted in an inadvertent burn to the wall of Price's colon. Dr. Bride conducted extensive tests to detect a colon perforation and concluded none had occurred. Still, Dr. Bride ordered Price to remain in the hospital for an extended period that day for more monitoring, after which he released Price to go home. The next day, Price began to experience symptoms of a perforation. He returned to the emergency room at St. Patrick's, and two days later underwent surgery to repair the perforation. Price later filed suit against Dr. Humphries and Dr. Bride, alleging a lack of consent for the polypectomy. At trial, a jury found for the doctors, and Price appealed.

The Court of Appeals reviewed the evidence presented at trial concerning Price's consent to the colonoscopy. It noted that on January 4, 2002, Price received a pamphlet from Dr. Humphries which included specific information that polyps could be removed if discovered during the colonoscopy procedure. The pamphlet further discussed that removal carried several risks, including perforation of the colon wall. Price also signed two forms, which were witnessed by a nurse, on the morning of the procedure certifying that he was aware of the risks. The court concluded based on this evidence that the jury did not err in determining that Dr. Humphries had obtained informed consent of the third type under Louisiana statute (per La. R.S. 40:1299.40(E)) from Price.

As for whether Dr. Bride obtained the necessary consent, the court acknowledged that Dr. Bride certainly did not personally obtain consent from Price to perform a polypectomy, as he was uninvolved in the procedure until Dr. Humphries found the polyps. However, the court again turned to the pamphlet provided by Dr. Humphries on January 4, 2002, noting that it indicated polyps might be removed upon discovery as part of the colonoscopy procedure. Furthermore, Dr. Humphries testified at trial that he verbally informed Price on two occasions that if he discovered polyps during the procedure, he would bring in Dr. Bride to remove them. Finally, the court found that the consent form signed by Price permitted Dr. Bride to remove the polyps by its language because Dr. Bride was a physician "authorized" to perform the necessary procedure by Dr. Humphries. Accordingly, the court found no error on the part of the jury in concluding that Dr. Humphries obtained consent from Price for the polypectomy.

Although Price was not successful in his suit against Drs. Humphries and Bride, the case illustrates the importance that Louisiana law places on the obligation of doctors to obtain informed consent from their patients. The law seeks to protect patients from unnecessary or unwanted medical procedures, while permitting doctors to take action when needed to save a life or ease suffering. Ultimately, doctors have a responsibility to ensure their patients are knowledegable about and comfortable with any procedure they propose, and the failure to meet this responsibility can give rise to a negligence claim.

This case will be followed up with another analysis to help illustrate the specific technicalities involved in the matter, as well as how patients can best prevent getting a procedure they do not wish or can pursue litigation if a problem occurs.

Jeanine Pryor of Lake Charles was injured when she fell exiting bleachers at a football came and filed a claim for damages due to injuries she sustained. Her claim was denied at the trial court level and in < ahref="http://www.leagle.com/unsecure/page.htm?shortname=inlaco20100616295">a recent decision, the Louisiana Third Circuit Court of Appeals reversed the trial court and awarded Ms. Pryor a significant damage award (over $500,000), even after reducing her damages by 30% due to a finding that she was partially at fault for the accident.

Ms. Pryor, of Lake Charles, went to New Iberia to watch her grandson's team play a playoff football game at Lloyd G. Porter Stadium. The facility is owned by the Iberia Parish School Board. Spectators at the field sit on either west or east side spectator seating. According to reports the west side, where home team fans sit, is a much nicer facility made of concrete that sits well off the ground and has ramps leading to the seats. The east side of the field, where visiting teams traditionally sit, contains metal frame bleachers with wood seat boards and foot boards and rails around the rear and upper portions. The bleachers have no aisles for walking up into the stands or rails to help someone walking up rows.

When she arrived at the stadium, the 69 year old Ms. Pryor walked to the visitor side of the stadium, balancing on the uneven ground with her daughter's help. Because the players and cheerleaders standing on the sidelines blocked the view of the game from the bottom rows, Ms. Pryor needed to climb up into the stands. Because she could not step up the eighteen inches from the first board to the second she had to grab the second board and lay on her side to swing up her legs one at a time. During halftime, Ms. Pryor needed to use the restroom so, again, with her daughter's help, she walked down the bleachers. When she came to the second seat board, she stepped down slowly the extended distance to reach the first board and fell back. She dropped her daughters hand and suffered a broken leg and other injuries.

Ms. Pryor was transported to Dauterive Medical Center where she was told she would need surgery. She chose to return to Lake Charles where she could be cared for by her own orthopedic surgeon. Following the surgery, Ms. Pryor suffered many complications and sued the school board, alleging that the bleachers were defective. The trial court found that the school board was the custodian of the bleachers in question but that they did not present an unreasonably dangerous risk of injury to Ms. Pryor, noting that:

in premises liability actions, the absence of an unreasonably dangerous condition of the thing implies the absence of a duty on the part of the defendant.

From the trial court's perspective, the probability of injury because of the missing rung between the first and second bleacher did not greatly outweigh the social utility of the missing bleachers, especially considering that the school board made special provisions to reserve a safe and accessible location for persons with disabilities on the west side of the field. The trial court also found that Ms. Pryor chose to straddle the second seat board at her own risk because she could have sat on the bleachers on the west side and thus failed to use reasonable care.

Louisiana Civil Code article 2317.1 explains the obligations of those who own land and buildings and provides that an owner is "answerable for damage... only upon a showing that he knew, or in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care..." Under La.R.S. 9:2800 this principle is extended to public entities such as the school board.

Ms. Pryor's obligation under these statutes was to prove that the stadium and bleachers were in the control of the school board, that there was a defect that created an unreasonable risk of harm, that the injury was caused by the defect, and that the school board had actual or constructive knowledge of the condition.

The trial court's dismissal of the claim hinged on their belief that the defect in the bleachers did not make them unreasonably dangerous because the school board provided safe seating for handicapped persons on the home team side of the stadium and because there was not a history of past accidents on the bleachers.

According to the Court of Appeals, the role of the trier of fact in cases like this is to decide if the social value and utility of the hazardous justifies the potential harm to others. The Louisiana supreme court has provided several factors to be considered in this risk-utility analysis, such as:

1)The claims and interests of the parties
2) The probability of the injury occurring.
3) The gravity of the risk injury.
4) The burden of making adequate precautions.
5) Societal rights and obligations.
6) The social utility involved.

Here the Court of Appeals disagreed with the trial court with respect to unreasonable risk of harm and found that the fact that there was safe seating on the home team side did not outweigh the great risk of harm caused by the obvious defect where visitors were directed to find seating on the day of a sporting event. The court agreed with Ms. Pryor that there is no social value in exposing patrons to an 18 inch differential between seat boards, one that clearly violated general safety principles. The utility of the bleachers and the defect they pose when weighted against the cost of removing the danger does not favor the school board's decision to expose stadium visitors to the risk. In addition, the lack of accident history does not change the Court of Appeals' conclusion that there was an unreasonable risk of harm. As such, the Court of Appeals found that the trial court erred and the school board should be held liable for Ms. Pryor's injuries.

Because Louisiana is a pure contributory negligence state, damages are awarded to parties according to their percentage of fault. As such, under analysis, if Ms. Pryor is deemed to be at all at fault, her damage award would be reduced. Various factors can be considered in determining the degree of fault of parties, such as: whether the conduct of the plaintiff resulted from inadvertence or an awareness of danger, how great a risk was created by the conduct, the significance of what was sought by the conduct, the capacities of the plaintiff actor, and any extenuating circumstances. Here, the Court of Appeals found that although the majority of fault should be assessed to the school board, Ms. Pryor was aware of the drastic height differential and if she had shown the same care descending the bleachers as she had ascending them, the accident could have been avoided. Ms. Pryor was deemed 30% at fault for the accident, with the school board 70% at fault.

Despite a history of medical problems, due to the accident and her subsequent surgery, the Court of Appeals found Ms. Pryor is now significantly impaired and her quality of life has deteriorated. She is unable to work or travel long distances. She will likely require three additional surgeries. The Court of Appeals found that the appropriate general damage award here is $300,000, as well as $80,745.79 for past medical expenses and $150,000 for future medical expenses.

This case is a great example not only of how punitive damages can be greatly influenced by a court's belief on risk and danger but also how the appeals process can rectify an improper judgment. It is important when facing such a legal battle to select an attorney capable of illustrating the wide breadth of issues relating to the matter and can help you receive the compensation you deserve.

Sometimes one plus one does not equal two. This was a lesson learned by the Living Epistle Church after a suit against the City of Shreveport. The church sued the city for damages to its sanctuary building, which was allegedly caused by a leaking sewer main. The trial judge heard testimony from the pastor and several experts and awarded $150,000 in damages to the church. However, the city appealed, arguing that the church had failed to prove that the sewer main leaked and was the cause of the damage to the sanctuary. The appellate court agreed with the city and reversed the decision and dismissed the claims.

In a civil suit like this one brought by the church, the plaintiff has the burden of proving the negligence of the defendant by a preponderance of the evidence. Most negligence cases require proving the following separate elements

1. whether the defendant had a duty to conform his or her conduct to a specific standard


2. whether the defendant's conduct failed to conform to the appropriate standard


3. whether the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries


4. whether the defendant's substandard conduct was a legal cause of the plaintiff's injuries


5. whether the plaintiff was damaged

The questions above are answered at the trial court level. The court of appeals may not set aside a trial court's finding of fact unless there is manifest error or unless it is clearly wrong when the record as a whole is reviewed. The appellate court must find that a reasonable basis for the trial court's findings does not exist and the findings are clearly wrong in order to reverse the trial court decision.

In the appeal, both an indispensable fact (whether there was any leak in the sewer line at all) and the essential element of whether any such leak was the cause of the damage to the sanctuary (cause-in-fact) were questioned. The church argued that the sanctuary experienced liquid accumulation, that the city responded promptly each time to pump the basement, and that eventually the city capped off the line and rerouted it. While this suggests a possible linkage between the flooded basement and the sewer line, there was plenty of indication that this was not the most probable cause of the damage.

The record indicated that the sewer was capped off because it had clogged and cracked, not because it was leaking. Also, while the plaintiff's expert opined that the sewer main could have caused the damage, he was provided with inaccurate information as to the location of the sewer main. Both the city's experts and the assistant superintendent over water, sewer and maintenance said that there was no indication that the sewer was rerouted due to a leak and no reasonable possibility of the original sewer line causing the damage to the sanctuary.

The trial court indicated that it had made a credibility determination in favor of the church's experts. However, in the end the appellate court had to discount the plaintiff's expert testimony because of the misinformation provided by the plaintiff. To show causation requires a preponderance of the evidence. The church failed to convincingly show that there was even a leak in the sewer line; much less that it caused the damage to the sanctuary. The decision was reversed and the claims dismissed with prejudice.

Civil suit negligence claims can be an expensive undertaking, not only because of the court and attorney fees but also because they come in the wake of damages suffered by potential plaintiffs. A plausible story - for instance, the basement flooded and then the sewer was rerouted - is not enough. Contacting a qualified attorney that can analyze the situation and gather the evidence necessary to bring a successful negligence claim is an important step for potential plaintiffs.

In a recent Court of Appeals decision, plaintiff Ryan George appealed a jury verdict that rejected his damage claim following his 2007 car accident in Lafayette. The Court of Appeals affirmed the jury's decision and found that defendants did not improperly challenge jurors during the selection process while one of Mr. George's challenges was deemed to be discriminatory.

Trials can be made or broken if the jury is sympathetic to one side or the other. This case shows how important it is for plaintiffs to have an experienced attorney involved in jury selection process. A good attorney will not only make the right decision about who should be struck from a jury via peremptory challenges, but will also be prepared to object to the other sides' challenges if they are a pretext for discrimination while being able to provide a articulable non-race reason for excluding should one of their own challenges are questioned.

The accident occurred at the intersection of Simcoe Street and Evangeline Thurway in Lafaeyette when a vehicle driven by Horace McBride rear ended a vehicle driven by Richard Benoit, Jr. as Benoit was turning left. McBride was working for Helix Energy Solutions Group, Inc. and driving his employer's vehicle. George was a passenger in Benoit's vehicle and was injured, requiring extensive treatment.

Mr. George settled claims against Benoit. Then he sued McBride, his employer, and the employer's insurer. At trial, the jury found that the Benoit's negligence caused the accident and dismissed the claims against the remaining defendants. On appeal, George asserted that the trial court erred in allowing defendants to exercise a peremptory challenge on three African American jurors without a race neutral explanation, in granting a challenge to George's peremptory challenge of a white male juror after articulating a race neutral explanation, not ordering a new trial due to an inconsistent jury verdict, and in not granting a new trial due to inconsistencies in the first and second jury verdicts.


With regard to the first two assignments of error, George objected to several of the defendants' peremptory challenges and argued they were excluding blacks from the jury and his objections were denied. He also made peremptory challenges to white jurors and the plaintiffs successfully objected in one instance. In the end the jury included six white and six black people.

The Equal Protection clause of the Constitution prohibits discrimination based on race in the exercise of peremptory challenges during jury selection. The U.S. Supreme Court has set up a three step process for determining if peremptory challenges are constitutional:

First, has the party opposing the peremptory challenge must make a prima facie showing that the striking party was exercising the challenge base don race. Second, once the showing is made, the striking party must provide a race neutral explanation for the strike. The reason need not be persuasive, or even plausible, just not discriminatory. Third, considering all relevant circumstances, the opposing party must prove that there was discriminatory intent in the use of the peremptory challenge.

The trial court was satisfied with plaintiff's "racially neutral" explanation of why they chose to challenge four African American jurors. The reason given to exclude the first juror, Mr. Doucet, was that he's had neck surgery and was in pain for quite awhile after, and therefore would be sympathetic to plaintiffs. As for the second juror, Martinez Cole, defendants stated that he was inattentive in responding to his questionnaire and therefore would be a passive juror not be involved in negotiations with other jurors. According to defendants, the third juror, Maxine Thibodeaux, had a husband who had been disabled for many years and disabled members of her family, and as such would be sympathetic to plaintiffs. According to the Court of Appeals the trial courts finding that these reasons were not a pretext to discrimination was not clearly erroneous and should not be overturned as they were consistent with the facts provided during jury questioning. With respect to George's use of peremptory challenges he used five of his first six challenges to strike white males form the jury. The trial court did not accept his explanation for the sixth peremptory challenge of Michael Fontenot. Mr. George's purported reason to exclude Fontenot from the jury involved a belief that Mr. Fontenot had very strong feelings about things such as CDL drivers and owner-operators, which would cause him to unfairly favor the defendants and influence the jury. Mr. Fontenot indicated in questioning that his brother in law has a CDL license and he took defensive driving courses while in the military. Because George did not challenge other jurors with a CDL or who had taken defensive driving classes, and also due to inaccuracies in his explanation itself, the Court of Appeals agreed with the trial court and found there was discriminatory intent in his attempt to exclude Mr. Fontenot. The Court of Appeals similarly found that the trial court did not err in instructing the jury on the inconsistency in the jury's verdict or in denying George's motion for a new trial. As such the dismissal of the claims stands.

This case is a great demonstration of how selecting a proper attorney for the case is paramount. Be sure, should you find yourself needing legal advice, that you properly analyze and inspect the track record and success of your attorney. In doing so you can prevent any sort of procedural item that is overlooked by a less qualified lawyer.

According to a recent article in Baton Rouge's Times Picayune, drivers who fall asleep at the wheel and cause an accident could be in more trouble than ever before. Earlier this month a Committee of the Louisiana State Legislature approved a bill that would create the new crime of involuntary vehicular homicide.

A Galiano couple who lost their son in an accident caused by a driver who fell asleep at the wheel provided tearful testimony leading up to the unanimous vote in favor of House Bill 628 in the Committee on the Administration of Criminal Justice. The next step for the bill will be debate on the House floor.

Tina and Anthony "T-Boy" Charpentier lost their 33 year old son when a truck driver fell asleep at the wheel. Anthony doesn't think the bill is tough enough but hopes it will at least make guilty drivers think about what they have done.

Under the legislation, involuntary vehicular homicide is defined as:

The killing of a human being by someone who fails to maintain control of a boat, car, truck, or any aircraft, watercraft or motor vehicle by falling asleep whether or not the offender has the intent to cause death or great bodily harm.

The penalty for involuntary vehicular homicide includes up to 250 hours of community service, a lesser penalty than the up to five year jail sentence sought in an earlier proposed version of the legislation. According to Ellis "Pete" Adams of the Louisiana District Attorneys Association said that DAs may have trouble proving that a driver was asleep at the wheel if the bill is passed. Unlike proving violation of a law against intoxicated driving, proving sleepy driving does not happen via a blood or breathalyzer test. Most likely, prosecutors will need rely on witness testimony about how much a particular driver slept leading up to the accident and whether or not they have a propensity to drive while sleepy.

Every state and the federal government currently aim to cut down on these kinds of accidents by regulating commercial drivers' hours of services and restricting how long truck drivers can be on the road. If this law passes, however, it will be the first law that could affect how long private drivers can be on the road.

Currently, New Jersey is the only state with a "drowsy driver law." Many like the Charpentier's, would like Louisiana to be added to that list in hopes to cut down on the number of accidents attributed to drivers who fall asleep while driving. According to data from the Louisiana Highway Safety Commission, in the last three years there have been more than 4800 accidents attributed to drivers who were asleep or blacked out on Louisiana roads, 27 of which ended in fatalities. The problem stretches nationally as well. A 2002 survey of the National Sleep Foundation reported that nearly 2 in 10 drivers said they had actually fallen asleep at the wheel in the past year.

The civil implications are obvious with a new crime being introduced by the legislature. Families who lose a loved one due to someone falling asleep at the wheel may now have a stronger case given the new criminal penalty. A finding of guilt in criminal court can have strong implications on a civil suit that could follow. What's more, civil lawsuits can be difficult to navigate if an attorney does not have a lot of experience. Whether in employing technical experts who can carefully outline the complex events that took place on that tragic day or using various technologies to best represent your interest, our firm has the experience you need to prosecute any matter of case you might find yourself hampered by.

A two-car collision on Highway 117 in Natchitoches Parish led to a lawsuit and an appeal regarding the amount of damages awarded, among other things. On the morning of October 25, 2002, Edward Raymond was travelling north on Highway 117, returning from work. He was a firefighter at Fort Polk. That same morning Stephen Taylor was traveling south on the same highway. Taylor was on his way to New Orleans to get a sea card to work on tugboats. He was detouring to his girlfriend's mother's house in Leesville to pick up his birth certificate. It was raining that morning and during Taylor's maneuver to pass a loaded log truck, he saw the headlights of Raymond's vehicle. Taylor attempted to drive onto the shoulder to avoid a collision, but Raymond also tried to avoid a wreck by driving onto the shoulder; the cars crashed head-on and Raymond died as a result of the accident. The site of the crash was in a no-passing zone. The jury determined that Taylor was 75% at fault and the Louisiana Department of Transportation and Development (DOTD) was 25% at fault (mostly for failing to place a no-passing pennant sign at the start of the no-passing zone where the accident occurred).

The jury awarded the following damages

(1) $5,421.20 for funeral expenses; (2) $1,904.00 for medical expenses; (3) $1,514,747.79 for loss of past earnings, future earnings, and earning capacity; (4) $50,000.00 for the conscious pain and suffering and anguish of Mr. Raymond; (5) $1,500,000.00 for the damages suffered by Barbara Raymond for the loss of her husband; and (6) $750,000.00 to each of [Raymond's] four children for the loss of their father.

These include two types of damage awards: general and special damages. Special damages are those which have a "ready market value." They can usually be determined with relative certainty and include costs such as medical expenses and lost wages. These are "out of pocket" costs and usually have some concrete evidence to determine an appropriate amount. When there is an appeal regarding the amount of special damages the appellate court must review the record as a whole and satisfy a two-step process in order to disturb the findings at the trial level. First, there must be no reasonable factual basis for the trial court's conclusions. Second, the finding must be clearly wrong.

General damages refer to most other damages, typically subjective loss and suffering, that cannot be fixed to a monetary amount with certainty. There are no receipts or bills to indicate how much a person should be compensated with regard to general damages, though that does not mean damages for suffering are not justified. When an appellate court reviews general damages the charge of the appellate court is not to decide what it considers to be the appropriate reward. The appellate court should only review the exercise of discretion that is allowed to the trial court. Just because an appellate court would have set the damage award at a different amount does not mean the award should be disturbed. Even when review of the record supports that the lower court abused its discretion, the appellate court may only change the award to the extent of lowering it to the highest point which is reasonable or raising it to the lowest point which is reasonable within the discretion the lower court is allowed (basically, the appellate court may bring the award to just within a range reasonable to the record).

A judge or jury at the trial level is given a great deal of discretion to assess the amount of damages to be awarded. The trial level decision makers have the benefit of live witnesses and experiencing the trial. The appellate court sees only the "cold" record. Plus, the function of the trial level judge and jury is to determine questions of fact and the appellate court should be careful not to make its own fact findings. Thus it is important for potential plaintiffs not only to present a claim well at the trial level, but also to afford a convincing line of evidence so that any challenge to the amount of damages at the trial level will be well supported for review at the appellate level. Plaintiffs should seek a skilled attorney to ensure that the damages sought are supported with hard evidence (like receipts and bills when possible) and other convincing evidence when there are no market equivalents to determine losses or other costs.

Victim John Deshotels learned the hard way what happens when you don't have a an attorney represent you in an accident injury claim. He took his case to trial unrepresented and lost. Even after getting an attorney the damage was done and he lost again in a recent Court of Appeals decision.

Plaintiff John Deshotels appealed the trial court's granting of involuntary dismissal of his case against Nicholas J. Fontenot and his insurance company. Deshotels alleged he was rear ended by a car driven by Fontenot and injured.The case went to trial and following Deshotels' presentation of his evidence, the insurance company moved for involuntary dismissal pursuant to La. Code Civ.P. art. 1672 (B)

Louisiana Code of Civil Procedure Article 1672 (B) states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party... may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Trial courts have discretion to grant an involuntary dismissal if, after weighing the evidence, they determine the plaintiff has not proved their claim by a preponderance of the evidence, or the "more likely than not" standard.

In this case Deshotels was able to establish at trial that he and Fontenot were in an accident and that Fontenot had $5300 worth of repairs done to his vehicle. The parties' stories conflict as to how the accident occurred. Deshotels testified that he suffered pain over his entire body after the accident and went to see Dr. Tommy Fontenot complaining of extreme redness on his left ankle and extreme pain in his neck. Deshotels also testified that he took hydrocodone for the pain. However, he was unable to produce bills for doctor visits or his medication. The evidence was insufficient to prove that Fontenot acted negligently, and the Court of Appeals found that the trial court did not err in that finding.

The Court of Appeals also disagreed with Deshotels argument that the trial court should have allowed him to introduce the traffic ticket Fontenot received after the accident. It is well established that a civil traffic citation is inadmissable to show a party was charged with a traffic violation.

Car accident victims may feel they have an open and shut negligence case against someone who has hit and injured them. However, proving the elements of negligence requires factual investigation, potential expert witnesses, and importantly, an attorney well versed in the law and pitfalls that could potentially arise. If a plaintiff does not prove that it is more likely than not a defendant acted below the appropriate standard of care and that action caused injury and damages, the case could be dismissed, as happened here. If you have been injured in a car accident, it is very important that you have an accomplished, experienced attorney to help you navigate the often messy legal waters.

According to a report from talkofthetown.com, a low-speed traffic circle, or "roundabout," is slated to be installed at the end of Jackson Street Extension in Alexandria. The intersection links Jackson Street Extension with Twin Bridges Road, Lodi Road, and Horseshoe Drive. The initial plan called for a four-way stop sign, but Nick Verret, District 8 engineer-administrator with the Louisiana Department of Transportation and Development (DOTD), said a roundabout would offer better safety and efficiency than a four-way stop or a traffic light signal.

The debate over the most effective traffic control devices for intersections has been ongoing throughout the last century. As far back as 1934, a study published in the Journal of Social Psychology reported that approximately 25 percent of drivers who approached an intersection with visible cross traffic failed to come to a full stop at the stop sign. Another study revealed that when there was no approaching traffic, only 14 percent of drivers fully stopped their cars. This frightening figure comes from reserach conducted in 1968 in Berkeley, California, which was published in the Law & Society Review. For a recent discussion of these studies and the efficacy of stop signs generally, see this article from Slate.

Roundabouts, on the other hand, enjoy a significantly better reputation for safety. A study published in the American Journal of Public Health in 2001 looked at crash statistics for 24 intersections across the U.S. that were converted from stop sign or traffic light signal controls to roundabouts. Traffic accident rates at the intersections dropped dramatically following the conversion, including a 90 percent reduction in the number of crashes involving fatal or incapacitating injuries. Roundabouts also offer improvements to traffic flow. The DOTD's Verret estimates that the Jackson Street Extension roundabout will result in a "50 percent increase in capacity" for the intersection," which will help to reduce the long queues that occur during peak times. The trade-off is that roundabouts are typically more expensive to install and maintain than signs or signals. The Jackson Street Extension roundabout will cost $2.34 million, with $1.6 million funded with federal dollars and $740,000 funded by the city of Alexandria.

According to the Federal Highway Administration, more than one-fifth of all traffic fatalities happen at intersections. For this reason, it is critical that drivers remain alert at all traffic crossings, regardless of the type of intersection or signal device. A driver's general duty of care extends to proceeding through intersections with caution while keeping a lookout for oncoming traffic. Failure to do so can easily give rise to a negligence claim.

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When Robert Williams, Jr. and Tyson Smith got into an altercation that resulted in a broken jaw for Williams, the Williams family brought a lawsuit against both Tyson Smith and the Northeast Louisiana Marine Institute, Inc. (NLMI). NLMI is an alternative school in Tallulah, LA. The event occurred one January morning in 2007 at NLMI with both teachers and other students present.

Even though both defendants were served with notice of the suit neither responded in a timely fashion. When a defendant does not respond to a claim against him or her, the court has the ability to enter a judgment despite a party's failure to show up and present a defense. If a party has made any appearance in the process, however, then the party's representative must be given notice of the default judgment before the judgment is confirmed.

The trial court in this case entered default judgment against the defendants. The court found NLMI liable for the incident and awarded just over $60,000 to the plaintiffs. NLMI appealed this decision, and, even though they did not present a defense at trial, were able to get the ruling overturned.

A plaintiff cannot win a claim merely because the defendant declined to show up to the proceedings. When a person has a grievance and brings it to a court, that party must provide evidence to support a prima facie case. According to Thibodeaux v. Burton, a 1989 Louisiana case, this means that the plaintiff must present evidence that convinces the court that the claim is likely to prevail in a trial on the merits. If, for instance, the plaintiff is bringing a negligence claim (as the Williams are against NLMI in this case) then the plaintiff must show evidence of any and all elements of that charge. If the plaintiff can show that the claim would likely win even if the defendant had showed up, then the plaintiff is entitled to a default judgment in his or her favor. This standard is established in Louisiana's Code of Civil Procedure.

An appeal from a default judgment normally requires overcoming the presumption that the judgment was rendered upon sufficient evidence and that it is legally correct. However, the appellate court in this case noted that this presumption does not apply where the testimony is transcribed and contained in the record. Therefore, in this case the appellate court was able to look at the evidence to decide whether it was sufficient and competent (a greater level of inquiry than the appellate court would otherwise engage in). The court found that while schools need to provide adequate supervision of students, they do not act as insurers of safety. The appellate court reversed the judgment, finding that the evidence presented was not sufficient for a prima facie case necessary in order to obtain confirmation of default.

While an absent defendant might seem to be a slam dunk case for a plaintiff with a non-frivolous claim, potential plaintiffs should seek the advice of a competent lawyer to be sure that their side of the case has sufficient evidence to win a default judgment should the defendants decline to show up.

When a lawsuit is brought the positions of the parties are frequently unequal. This is often the case for products liability suits, which involve an injured consumer or user of a product seeking to recover damages from the maker or seller of the product. Being a large and sometimes repeat player in the legal system can give businesses an advantage over an individual that is using the court system for the first time. Depending on the size, structure, nature of the business, as well as other factors, businesses may have an in-house legal department or regular representation from an outside firm. This kind of legal experience and expertise can sometimes result in the business defendant being able to delay, increase the cost of, or otherwise inhibit the discovery process. A potential plaintiff needs a competent, experienced, and dedicated lawyer to ensure that all the discovery evidence he or she is entitled to is provided by the defendant.

An example of this type of battle is the recent case called Soileau v. Smith's True Value and Rental, which named Deere & Company and John Deere Limited as defendants. Ms. Soileau was injured in an accident on November 1, 2007 when a John Deere Model 460 front end loader became detached from a John Deere Model 4510 tractor and struck her right leg. Her initial lawsuit was brought on April 21, 2008.

Ms. Soileau filed interrogatories and requests for production of documents at the time of initially filing her lawsuit. However, each round of requests seemed to lead to refusals, delay, and incomplete information. Ms. Soileau even received incomplete information from the Consumer Product Safety Commission. This battle eventually led Ms. Soileau to turn to the court to force cooperation from the defendants. In addition to a motion to compel the defendants to answer her interrogatories, she sought to have them sanctioned, barred from producing certain evidence at trial, and forced to pay penalties and attorney fees for the trouble caused by their lack of cooperation.

On March 12, 2009, approaching one year after the lawsuit was initiated, the defendants received a court order to comply with discovery procedures. When this still did not motivate the defendants to fully cooperate, Ms. Soileau again turned to the courts. On May 22, she filed a motion to compel, to have the defendants held in contempt, and to have sanctions imposed. The trial court granted all of Ms. Soileau's requests, finding that the defendants had no good explanation for their delay or the piecemeal method of providing information, and that they had not taken their obligations seriously. The trial court found as a matter of fact that the defendants had been hiding information. The defendants appealed.

Despite the legal system being adversarial (each side trying to advocate their point of view), there is also a higher goal of justice and fairness. The Louisiana Code of Civil Procedure provides that a party may turn to a court for an order compelling discovery if dissatisfied with another party's responses. The decision to grant such relief rests within the discretion of the trial court.

Parties are allowed to use a variety of methods, including written or oral questions and requests for production of documents, to obtain evidence. The evidence available for discovery includes any matter which is not privileged and which is relevant to the subject matter involved in the suit. Evidence or other information may even be subject to discovery if it would reasonably lead to the discovery of evidence that is permitted in trial.

Refusing to cooperate with discovery requests can lead to court-imposed consequences for the uncooperative party, including a court order to produce discovery materials. However, there is a distinction between failing to cooperate with a normal discovery request and failing to obey court-ordered discovery. The former is sometimes justified, but may lead to a court order if unjustified. The latter is a more serious offense.

The Louisiana Code of Civil Procedure art. 1471 includes the following consequences as available against a party that fails to comply with discovery orders: (1) an order that the matters are established as fact (basically assuming facts as true when a party denies discovery); (2) an order preventing the disobedient party from opposing claims or presenting defenses; (3) an order stopping the proceedings until the order is obeyed or rendering a default judgment against the disobedient party; (4) an order treating the failure to obey any orders as contempt of court. When a trial court determines that any of the above consequences are appropriate, a reviewing court will only overturn this decision if there is abuse of discretion. In the case of John Deere, the reviewing court found no such abuse by the trial court.

The case of Ms. Soileau and the John Deere loader shows how difficult, tiring, and time-consuming discovery procedures can be. All the effort, the added hearings, and the expenses incurred along the way are entirely in addition to the actual reason for seeking help -- Ms. Soileau's original personal injury suit. Having excellent legal help will allow a plaintiff to obtain the necessary evidence, and perhaps even compensation for any undue trouble, to successfully support a claim against a company with a lot of resources.

A recent Louisiana Court of Appeals < a href="http://www.leagle.com/unsecure/page.htm?shortname=inlaco20100519282" > decision provides a good discussion of the burden of proof required in Jones Act cases.

James Bancroft worked as a seaman on the M/V Captain Nick owned by Mitchell Offshore Marine when the ship collided with the Pan Am Caribe. Mr. Bancroft was thrown violently, and broke ribs and punctured a lung. The court ruled that the vessel was not seaworthy and therefore Mitchell owed Bancroft $65,000 in general damages as well as $8250 for wage loss. The trial court did not agree with Bancroft that the accident had aggravated a prior back injury. On appeal, Bancroft asserted that the trial court erred in applying the incorrect burden of proof to the causal element of his case, finding his spine injuries and spinal fusion were not caused by the accident, awarding unreasonably low damages for his injuries, and failing to award punitive damages against Mitchell, while Mitchell claimed the trial courts damage award was too high.

Under the Jones Act, seaman are provided with the same rights railway employees have under the Federal Employers' Liability Act which provides that "every common carrier by railroad . . shall be liable in damages for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. Under the Jones Act, seaman can recover when their employers' negligence causes their injury. The standard of causation in both FELA and Jones Act cases is very low. The Supreme Court has used the word "slightest" to describe the standard of causation between employer negligence and employee injury. This means that if employer negligence played any part in producing injury or death, the employer will be held liable

In this case, Mitchell argued that the "slight" standard of causation required proof of that negligence by preponderance of the evidence, the more likely than not standard. However, because the case that Mitchell relied on goes against years of precedent, the Court of Appeals disagreed. As such, Bancroft only needed to prove that the injury he sustained was linked to Mitchell's negligence by slight evidence. According to the Maritime Case of Stevens v. Omega Protein, Inc.:

Under the Jones Act and the general maritime law, when the defendants' act aggravates or accelerates a pre-existing condition and renders a plaintiff unable to continue his work or awakens a dormant conditions that causes a plaintiff to experience pain when he did not suffer from pain or disability prior to the aggravation, defendant can be liable in full for the disability caused."

As long as the plaintiff can prove a causal connection between the injury and the accident by the slight evidence standard the defendant will be held liable. The Court of Appeals found that the trial court here applied the correct burden of proof despite its use of the phrase "preponderance of the evidence."

Bancroft also contended that the trial court erred in not finding that his spine injuries and surgical collision and again the Court of Appeals disagreed. The trial court set forth detailed reasons for their judgment and accurately describe Bancroft's history of back problems, dating back to 1997 when he first visited a doctor for back pain. The history indicated that Bancroft had recurrent bouts of lower back pain, casting doubt on his claim that a latent problem was made symptomatic by the accident. Bancroft's doctor was even of the opinion that the surgery he performed was for the injury that had been diagnosed prior to the accident. The Court of Appeals agreed with the trial court's exhaustive reasoning that the back injury and surgery were not caused by the accident. Bancroft failed to prove that his injury resulted from the accident, even by the slight standard of causation.

Even though the injury and surgery were not caused by the accident, however, the Court of Appeals found that the trial court did err n finding that no back pain was caused by the accident. It is clear Bancroft did suffer some back pain as a result of the accident, and this affected the Court's determination regarding the trial court's general damage award.

While damage awards are entitled to great weight and should rarely be reversed, the Court of Appeals found that the trial court abused its discretion in awarding damages to Bancroft for rib and chest injuries only. Medical records clearly showed that some back pain came from the accident. As such, the Court of Appeals awarded Bancroft an additional $25,000 in general damages for suffering he suffered related to back pain from the crash.

As this case demonstrates, the evidential standard required in Jones Act cases is very low, but there still must be a causal link between the accident and an injury upon which the plaintiff seeks to recover damages. If you are a seaman injured while at work it is essential you have an attorney who is able to demonstrate to a court that your injuries did in fact result from the accident and not some pre-existing condition.

A fire broke out in 2008 within the Denham Springs, Louisiana, home of Thomas and Janice Campbell that laid devastation to the house and left the couple looking for answers. The fire investigator determined the fire's cause was a defective range in the Campbell's kitchen. The investigator determined the burners were off and the fire broke out when the control panel experienced a short. The Campbell's had an expert assess the damage as well and received the same conclusion. Because of this assessment, the Campbell's brought a lawsuit against manufacturer of the range, General Electric, alleging product defect had led to the destruction of their home. GE countered in court, moving for summary judgment against the use of the Campbell's expert witness as well as moving for summary judgment against the use of a construction/composition claim.

If you have been a victim of an injury from a defective product, you should know that there are three different ways that you can prove the product is defective. These ways of proving fault attempt to encompass the process that a product undergoes and includes a variety of manners in which faulty conduct on the part of the delivery chain led to the disaster. By expanding the manner in which fault may be determined, the law not only gives more option to those injured by a product but also keeps a victim from suing anyone who came into contact with the good in hopes of compensation.

First, a product may have a manufacturing defect. A manufacturing defect occurs when a product becomes unreasonably dangerous by an error in the manufacturing process or the materials used in its creation, assembly, or construction. Therefore, if your electric range caused a fire because the materials used to create the product were below standard, this would be a "manufacturing defect." In Louisiana, these defects are called "construction or composition" defects.

Second, a product may be defective due to poor design. This type of defect is known as a design defect. Unlike a manufacturing defect where a single product is defective, a design defect involves an error in a whole line of products. A product may found to have a design defect under the "Consumer Expectation Test." This test requires that the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

Lastly, a product may have a marketing or warning defect. A manufacturer may be liable for failing to provide adequate warnings of the dangers associated with the product or how to avoid injury.

Louisiana Products Liability Act Protects Victims
The Louisiana Products Liability Act, codified in the Louisiana Revised Statute Section 2800.51 et seq. Under the act, a victim may establish a case against a manufacturer of a defective product by showing that they suffered damage that was proximately caused by a characteristic of the manufacturer's unreasonably dangerous product during a reasonably anticipated use of the product.

In order to establish that the product was "unreasonably dangerous," a victim must show that the product was unreasonably dangerous in its construction, composition, design, or inadequate warning. A plaintiff may show that the product was "unreasonably dangerous" by showing that:

"at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from the otherwise identical products manufactured by the same manufacturer."

Therefore, if a plaintiff could show that their particular range was significantly different in design from what the manufacturer required in that particular range, this would likely establish that the product was "unreasonably dangerous." In addition, a victim would be able to establish that their range was "unreasonably dangerous" by showing their particular range differed significantly from other identical ranges by the same manufacturer.

The Campbell's were successful in their preliminary motion as the court failed to side with GE regarding their requests for summary judgment against the claims of product defect and the use of an expert witness. This case also demonstrates the importance of an expert witness in trial as, in this case, they can support the finding of a local fire marshall or other blame assessment and be important in winning a case in court.

If you have been injured because of a dangerous product, get help now. Contact the Berniard Law Firm by calling 1-866-574-8005.

On May 7, 2010, the Donaldsonville community was saddened when 20 year-old Ryan Johnson was killed in a car accident when his car flipped after he collided with a semi-truck on LA 70. While this loss is tragic, it is also a reminder that accidents involving semi trucks should be treated differently that regular car accidents and usually require assistance from an attorney who has experience resolving these cases.

In a typical fender bender with another car, an attorney may not be required. After the collision, both drivers make sure they don't have any injuries, call the paramedics if needed, exchange contact and insurance information, have the police make a report if necessary, and they settle the cost of damages through their insurance companies. Often in these situations, especially in small communities, the drivers know each other and can easily call the other if they need any additional information that they didn't get immediately after the accident. It is a fairly straight-forward process.

Accidents between a car and a semi truck are different and require the driver of the car to be informed and consult an attorney soon after the accident. Truck drivers haul cargo across the country for a living. When they are involved in an accident, you are not just dealing with the other driver, but the company they work for. Trucking companies have similar liability insurance as the average driver; however, these companies are better equipped to handle accidents because they have already prepared for this situation. Trucking companies also have attorneys working to protect their assets that may only work on these types of cases. Trucking companies and their insurance providers are both business and have the goal of giving you the least amount of money for your settlement. It is important that you have someone fighting equally as hard on your side.

Since truck driving is an occupation, truck driving companies are required to ensure that their drivers meet specific obligations. First, professional truck drivers are required to have a specialized truck driving license and have the training, knowledge, and experience to safely drive their massive vehicles. Second, there are laws that limit the number of hours a driver can be on the road each day. These laws attempt to prevent the number of accidents that are caused by fatigue. Your attorney will request a copy of the driver's log book to see if they were complying with this law. Third, trucking companies are required to properly maintain their vehicles and maintain a record of when their trucks are services. Your attorney will request a copy of the service records for the truck involved in the accident to see if the trucking company contributed to the accident by not performing the required maintenance. Semi trucks are also equipped with Electronic Control Module (ECM) devices similar to "black boxes" on airplanes. The ECM device can provide information like how fast the truck was traveling when the accident occurred. It is imperative to have this information preserved; therefore your attorney needs to request it soon after the accident. The sooner you hire an attorney, the sooner they can request these records, and the less likely it is that these records will be lost or misplaced.

Given that a semi truck is as much as 25 times bigger than the average car and can weigh over 80,000 pounds, it is imperative that your collision be closely inspected by a legal expert. In doing so, an individual can have claims of negligence, traffic violations, comparative fault and a wide variety of other avenues examined. By limiting the amount of time between the accident and an investigation, evidence is more readily available. What's more, an attorney will often employ an expert of these types of accidents who can help testify and explain what happened in the unfortunate event. In having a lawyer set to all of these various legal mechanisms, the victim of an accident can focus on other issues and allow their legal representative to do all the legwork for them. Whether by pursuing a more fair settlement than the extremely low one offered by the insurer or taking the trucking company to court, hiring an attorney is the best option when facing the daunting task of achieving justice for such an accident.

On behalf of the Berniard Law Firm we would like to wish everyone a happy Fourth of July Weekend. Please be sure to have a fun, and safe, holiday.

This blog will resume posting on Monday.

Amber Bridges was driving her parents' 2002 Hyundai Sonata without their permission when she was involved in an accident with a 1992 GMC pickup truck owned by Tommy McClain at the intersection of Millhaven Road and Highway 594. She was attempting to turn left onto Millhaven road and was issued a citation and later found by the trial court to be solely responsible for the accident. Amber had received her offical driver's license just two weeks before. The car she was driving was owned by her father, Terry, and insured by American through Advanced Planning Insurance Company.

Although both cars were insured, American denied coverage for the liability of Amber. When Terry obtained the automobile insurance in 2006, Amber was 16 years old and had a driver's permit. However, Terry failed to disclose that Amber was a resident of the household over the age of 14. State Farm, the insurer of McClain's car, paid the fair market value of the totaled pickup truck. State Farm and McClain then brought a civil suit for damages against Terry, Amber, and American.

La. R.S. 22:860 states:

A. Except as provided in Subsection B of this Section and R.S. 22:1314, and R.S. 22:1315, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it from attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless either one of the following is true as to the applicant's statement:
(1) The false statement was made with actual intent to deceive.
(2) The false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer under the policy.

When seeking insurance, the purchaser has a duty to inform the insurer of all the facts relevant to a decision about writing a policy. An insurance policy may be voided if (1) the insured made a false statement in the insurance application, (2) the false statement was material, and (3) it was made with the intent to deceive. The insurer carries the burden of proving that the insured misrepresented a material fact with the intent to deceive.

Despite the omission, the trial court found and the appellate court affirmed that the policy could not be voided. Bernice, the representative of Advanced who completed the application for insurance, knew Terry, his background, his children and their ages, and was informed by Terry that the vehicle in question would eventually be driven by Amber when she was a senior in high school. Terry mistakenly believed that Amber would not have to be on the policy until she was allowed to drive the vehicle. Bernice had Terry sign the insurance application using an electronic signature pad without presenting the application to Terry for review. If an agent by mistake, fraud or negligence inserts erroneous or untrue answers to the questions contained in the application, those representations are not binding on the insured. The courts determined that Terry could not have intentionally withheld the information with the intent to deceive because he trusted the representative to prepare the application, had no intention of hiding the fact that Amber would eventually drive the car, and was not shown the application to review its accuracy.

Disputes like this arise quite often with insurance companies. By carefully analyzing the situation and consulting with a legal expert, you can make sure your rights aren't violated by a company looking out for their bottom line.

In a recent Louisiana Court of Appeals decision, Janika Johnson appealed a verdict in favor of Gilley Enterprises, owner of a Monroe McDonalds. Johnson, as a customer at the McDonald’s in 2006, was involved in an altercation with an employee. There was a history of ill feeling between Johnson and the employee because Johnson was dating the father of the employee’s child. Johnson called the other woman over to the counter, and a conversation ensued which turned loud and heated. The employee reached over the counter and struck Johnson in the face. Other store employees intervened. Johnson was told to leave and started towards the door. The other woman picked up a cup, dipped it into an open vat of hot grease, and threw the hot grease on Johnson, who suffered serious burns on her face and body.

Johnson filed suit against Littleton (the employee) and Gilley Enterprises, contending that Gilley was liable because their managers were negligent in hiring, training, and supervising Littleton and that Littleton’s attack occurred in the course and scope of her employment, making Gilley vicariously liable. Gilley responded that all of Johnson’s causes of action had prescribed. The trial court granted Gilley’s exception for the negligence claim but denied it pertaining to vicarious liability. Gilley filed a motion for summary judgment to dismiss the remaining vicarious liability claims arguing that Littleton was acting outside the course and scope of employment, the trial court agreed and Johnson appealed. On appeal Johnson argued that the trial court erred in concluding La.C.C. art 3493.10 was inapplicable to her claims of negligent hiring, training and supervision.

Louisiana C.C. art 3493.10 states:

...Actions which arise due to damages sustained as a result of an act defined as a crime of violence under Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950 are subject to a liberative prescription of two y ears...from the day injury or damage is sustained.

The Court of Appeals disagreed with Johnson that 3493.10 applied here. There are two different tortious acts that are at issue. First, the assault and battery and Gilley’s vicarious liability for its employees actions. Second, Gilley’s negligent hiring, training, and supervision of Littleton. The second claims are separate and stand on their own. The Supreme Court has found that individual actions of joint tortfeasors should be considered for the application of the two year prescriptive period and not the entire action. The trial court correctly sustained Gilley’s exception of prescription with respect to the claims of negligent hiring, training, and supervision.

As for the vicarious liability claim, the Court of Appeals agreed with the trial court that Littleton was not within the scope of her employment at the time of the attack.

Vicarious Liability
An employer can be liable for their acts and the acts of their employees as long as the employee’s action are within the course and scope of the injuring employee’s employment. Course means time and place. To determine scope is more complex. The employment-related risk of injury should be examined and if the tortious conducts is “so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business..” the employer is vicariously liable. More specifically, the Louisiana Supreme Court has provided four things to consider in finding vicarious liability (not all must be found):

1. The tortious act was primarily employment rooted.
2. The violence was reasonably incidental to the performance
of the employee’s duties.
3. The act occurred on the employer’s premises.
4. The act occurred during the hours of employment.

Finding that the scope of employment aspect of vicarious liability has been satisfied depends on the motive of the employee and whether their purpose served the employer’s business.

In this case the question was whether Littleton’s motive was to serve Gilley’s business in any way. Littleton and Johnson had a violent history and Littleton appeared to be the aggressor. In the attack, appeared to be motivated by her anger towards Johnson and not by service to Gilley. The Court of Appeals agreed with the trial court that Littleton’s attack was motivated by purely personal considerations. The conversation leading up to the attack was purely personal. Littleton did not wait on Johnson that night. Johnson had to request that Littleton come to the front counter. Littleton’s personal attack in no way furthered the business at the restaurant. Johnson failed to show that any genuine issue of material fact existed as to whether Littleton’s act was primarily employment rooted or incidental to her job duties. As such, even though the attack occurred on work premises during work hours, it was not in the scope of employment and thus there was no vicarious liability.

If you have been injured as a result of an employee's actions or as a result of unsafe conditions in a business, consult with an attorney today. Doing so can help get the process started on a claim against the business for any harms caused.