Louisiana Personal Injury Lawyer Blog

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It is not uncommon in casinos for patrons to become intoxicated to the point that they are unsuitable for public. For this reason, casinos implement security procedures to deal with intoxicated patrons. Most of these procedures involve cutting the patron off from alcohol and, in some cases, even removing the patron from the premises. Sometimes, however, intoxicated patrons who are confronted by casino security become unruly. In these situations, when patrons are forcibly removed from the establishment, the amount of force that can be justified in the removal becomes an issue.

In Miller v. L'Auberge Du Lac Casino, two intoxicated patrons were cut off from alcohol by casino security.Since the patrons were not allowed to gamble if they were unable to drink, the two patrons were asked to leave. When one of the patrons tried to take a picture with her cell phone in a photography prohibited area, a security guard took the phone away, resulting in a scuffle. Both patrons shouted profanities at the security guards and one patron grabbed a security guard by the neck, resulting in cuts and scrapes. In response, the security guard took the patron to the ground and handcuffed him.

The plaintiffs, the two patrons, took the confrontation to court, claiming that the security guards had used excessive force in the removal. The patron who was taken down claimed to have been punched in the face and that one of the security guards jumped up and down on his legs. Video shown at trial, however, showed no evidence of such conduct. Based on this video and expert testimony, the jury found for the defendants.

On appeal, the plaintiffs sought to have the jury's verdict set aside. However, when a case is being heard on appeal the court will not disturb the fact finder's ruling where there are conflicting testimonies. In these instances the court of appeals will only consider whether or not the fact finder's conclusion was reasonable, not whether that conclusion was right or wrong. The only way for an appellant to get around this manifest error standard is to seek de novo review. De novo review occurs when an appellate judge allows independent appellate determination of issues of fact or law, or both. Typically de novo review is only granted if the trial jury fails to follow the court's instructions or there is a clear error of fact or law. De novo review, therefore, is in essence a rehearing of the case before the appellate judge.

The plaintiffs in the Miller case sought de novo review on appeal. In deciding whether or not to grant such a review, the court of appeals looked to the evidence presented at trial. Review of the tape and testimony revealed that the jury's finding was reasonable, and was therefore not so erroneous to justify a de novo review.

The plaintiffs in Miller also sought judgment notwithstanding the verdict. A judgment notwithstanding the verdict occurs when a judge reverses a jury's verdict because there were insufficient facts to support the verdict or that the law was erroneously applied to the facts. Like a de novo review, the granting of a judgment notwithstanding the verdict is tied to the reasonableness of the jury's finding. However, in judgment notwithstanding the verdict, if no reasonable person could come to the conclusion of the jury, then the judgment is completely reversed without another hearing. The conflicting testimony in Miller's case allowed a reasonable person to come to the same conclusion as the jury. Therefore, the plaintiffs' movement for judgment notwithstanding the verdict was denied by the appellate court.

The decision to appeal a judgment is important and should not be taken lightly. Cases that are arbitrarily appealed create inefficiency within the court system and increase costs to both the state and plaintiffs. Therefore, if you are considering appealing a judgment it is important to consult an experienced attorney. If you find yourself in this situation please contact the Berniard Law Firm.

When an individual files a claim for negligence several factors must be proven to succeed against a defendant. These factors state that, in order for negligence to exist, a defendant must owe the plaintiff a duty, breach that duty, be the actual cause of that breach, be the proximate cause of that breach, and the breach must result in actual harm to the plaintiff. Often, however, questions arise in negligence disputes when the cause of a plaintiff's injury cannot be proven. One of the most controversial of these issues is presumption; whether or not the injury should be assumed to have occurred from the defendant's breached duty. This was the main issue contended in Jones v. Brookshire Grocery Co.

In this case, Jones suffered from gastrointestinal afflictions after eating chicken strips that contained metal flakes from the defendant's store. At trial, the court found that although Mr. Jones's condition did not appear until after his consumption of the contaminated food, it was just as likely that his condition, which usually takes several years to develop, was already present prior to the incident. Therefore, Jones was awarded damages for his anxiety, but nothing for damages related to the gastrointestinal condition. On appeal, Jones contended that Housley, a leading negligence case, should apply in support of his position. Housley states that:

A claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.(Housley, 579 So.2d 973 at 980)

The Court of Appeal, however, found that Housley actually provides support for the argument against Jones. In order for there to be a presumption in favor of the plaintiff, the Housley rule requires there to be a "reasonable possibility of causal connection between the accident and the disabling condition." Yet, Jones's condition could have been present for years without any symptoms, and according to one of Jones's doctors, the condition was unlikely to have developed in the three months between the metal flake consumption and the diagnosis of the condition. Therefore, since Jones failed to provide further evidence establishing that there was a reasonable possibility of causation, the Court of Appeal denied Jones's plea for damages related to his gastrointestinal affliction.

The second issue that Jones appealed was the denial of loss of consortium damages for his wife. In order to succeed on a loss of consortium claim the plaintiff must prove the spouse's damages, the defendant's liability, and the consequential loss of consortium. Loss of consortium is typically defined as a loss of benefits of a family relationship. In addition to overall happiness, loss of consortium may apply if other aspects of the relationship are damaged including love, affection, sexual relations, and the right to support, aid, and assistance. Therefore, if one's husband is injured or killed because of a defendant's liability, the wife may be entitled to the husband's lost future wages as a loss of consortium. In the Jones case, the plaintiff succeeded in showing loss of consortium because Mr. Jones suffered anxiety which was caused by the defendant, and Mrs. Jones had been put through hardship because of that anxiety.

If you have been the victim of an accident caused by another but it is unclear whether or not your injuries are a direct result of the accident, ask yourself whether or not the injury appeared after the accident. If it has, it may be best to consult with a doctor to determine if it is possible that the injury developed before the accident. If pre-accident development is unlikely or impossible, then a court will presume the injury to have resulted from the accident. Likewise, if a family member's injury has affected your relationship with that person, and another is responsible for that injury, you may be entitled to loss of consortium compensation. Consortium incorporates a broad spectrum and should not be forgotten when making a claim. Remember, avoidable injuries hurt not only the victim, but those closest to him or her.

Negligence claims are often complex, requiring deep legal analysis of the facts and the law. This analysis is best left to a licensed practicing attorney.

Continue reading " Alexandria Man's Gastrointestinal Injuries Not Presumed To Have Developed From Defendant's Negligence " »

Previously on this blog, we have discussed at length the importance of filing a lawsuit within the period of time required by law. For medical malpractice actions, Louisiana statute

“sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission or neglect to bring such claims.” Campo v. Correa.

Determining the date of discovery is based on a test of reasonableness: “[p]rescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Constructive knowledge is considered whatever notice is sufficient to "excite attention and put the injured party on guard and call for inquiry.” However, even when the victim is entirely reasonable, it cannot be later than three years from the date of the original incident that the suit is filed.

Another topic we have often explored on this blog is the need for expert counsel to navigate the myriad of strategic and procedural challenges in litigation. This theme was evident in the recent case of Patin v. State of Louisiana. In 2006, Rita Patin sought treatment from Dr. Charles Norwood at the LSU Family Practice Center in Alexandria. During one or more visits in 2006, she believed that Dr. Norwood "administered inappropriate treatment which resulted in a stroke, heart attack, and other serious injuries." Patin sent a letter requesting a medical review panel to the Commissioner of Administration on December 11, 2009. The letter contained no details beyond her cursory allegation of wrongdoing by Dr. Norwood. LSU Center filed an exception of prescription in the district court. Patin, who represented herself, filed an answer that explained Dr. Norwood had “consistently mislead” her during telephone calls in 2008 in which he claimed her symptoms were a normal part of the healing process. The answer also alleged that Dr. Norwood administered excessive electromagnetic shocks which caused a stroke and heart attack. However, the answer included "nothing about when Patin became aware that she may have been the victim of malpractice." She did not indicate when she experienced the stroke and heart attack, or when she discovered that these conditions were related to Dr. Norwood's treatment. As a result, the court concluded that "Patin submitted no sufficient evidence upon which the ... court could determine whether her actions/inactions were reasonable." Thus, the Third Circuit upheld the trial court's judgment granting an exception of prescription in favor of LSU Center.

Continue reading " Self-Represented Plaintiff Waits Too Long to File Medical Malpractice Action " »

Summary judgment can seem like a punishment to the defeated party. Because of the final nature of these judgments, appellate courts review them de novo. This standard of review grants the appellate court the ability to look at the entire record in the court below. The Bates family experienced an additional loss at the appellate level in Bates v. E. D. Bullard Company. They lost at the trial level as a result of a summary judgment and was later affirmed on appeal.

When a judge grants a party a summary judgment he or she is in effect saying that the opposing party has no case as a matter of law and that there will not be a trial. The party that has been defeated will, however, be able to appeal this decision to the higher court. De novo review is necessary when appealing a summary judgment so that the appellate court can make the most educated decision about whether the winning party deserved a summary judgment. This level of scrutiny is higher than most.

In the case in question, it was determined that the plaintiffs did not establish a case as a matter of law against the sand defendant for several reasons. Sand is not a dangerous instrumentality; there is nothing about sand's very nature that makes it explicitly dangerous or harmful. The defendant sold the sand to the ill plaintiff's employer, deemed by the court to be a sophisticated user. If a buyer is sophisticated, there is no duty on the part of the manufacturer to warn the buyer of possible ill effects of certain uses of a product. This is true even though the seller likely knew or should have known that the sand would be used for sandblasting. The sand defendant's knowledge, real or constructive, did not bear on its lack of a duty to warn the sophisticated user buyer because there was no real way of telling what the buyer would do with the sand.

It appears from the discussion in this case that the only duty to the plaintiff runs to the plaintiff's employer. Mr. Bates' employer likely had some duty to warn him about the danger of sandblasting with inadequate respiratory equipment. The court mentions O.S.H.A. requirements that apply to this situation. While the plaintiff may still have been able to file suit against his employer if he did not already do so in this case, the fact remains he did not have cause against the sand seller for any actions that were done improperly.

There are many reasons to apply strict liability to a class of cases. There are also many consequences of doing so. Strict liability makes a person or entity responsible for the consequences of his, her or its actions or inactions regardless of culpability. There are certain portions of human conduct and interaction to which this standard lends itself. Business dealings between sophisticated entities who likely have the assistance of counsel is not one such area.

The sand defendants were entitled to their summary judgment in the eyes of the trial court and the appellate court as there was no basis for the claim against them under Louisiana law under strict liability or negligence. The fact remains that all the sand seller did was sell a relatively innocent product to another company without warning. The court held the other company to a higher standard than if the buyer had been an individual. The duty, if any exists, falls on Mr. Bates' employer as the sophisticated buyer of an non-hazardous instrumentality to notify the users of any potential dangers which may exist. As a result, the plaintiffs failed to recover against the sand defendants.

Continue reading " Summary Judgment on Sand Built of Solid Foundation by Louisiana's Third Circuit " »

Under Louisiana law, a defendant has no specific duty to protect a person against the harmful acts of a third party unless the defendant has a “special relationship” with the victim or some independent accountability for the third party. The concept of respondeat superior refers to the legal construct that an employer is responsible for the actions of its employee, so long as the actions occur in the course and scope of employment. This legal principle can be extremely valuable to plaintiffs who are unable to recover much if anything from an individual employee who commits harm; the vicarious liability of the employer can allow a plaintiff to recover from a presumably deeper-pocketed employer, as well.

Establishing vicarious liability can prove tricky, however: liability does not attach when the "employees" is an independent contractor. Under Louisiana law, "determining whether [an employer-employee] relationship exists, the major consideration is the control or right of control which one party exercises over the other." See Savoie v. Fireman Fund Ins. Co. Thus, the court "may examine the economic relationship of the parties and the right of one party to control the time and physical activities of the other."

Blanchard v. Ogima. In the recent case of Irving v. Rubens, for example, the plaintiffs attempted to establish an employer-employee relationship to reach an additional defendant. In 2008, Ray Manning engaged Richard Rubens to repair flood damage to his house on Prieur Street in New Orleans. Rubens was working on several other houses in the area at the time, and so he hired Robert Irwin as a foreman to oversee his several construction crews. Over the weekend of June 28, an altercation between Rubens and Irwin occurred at Manning's residence. Ultimately, Rubens shot and killed Irwin.

Irwin's family filed a wrongful death action against Manning alleging that he was Rubens's employer and therefore vicariously liable for the harmful acts of Rubens while in the course and scope of his employment. The Fourth Circuit, in reviewing the trial court's granting of Manning's motion for summary judgment, found "no evidence of any special relationship between Ray Manning and Robert Irving that would impose a duty upon Manning to protect Irving from being shot and killed by Rubens in Manning’s home." There was, in the court's view, "no evidence indicating that Manning could be found vicariously liable as Rubens’ employer for Rubens’ killing of Irving." The plaintiffs failed to offer sufficient evidence to show that Rubens was an employee, rather than an independent contractor. In fact, the evidence showed that Rubens "was overseeing construction jobs for other homeowners at the same time he was doing Manning’s house," and that "Rubens selected, hired and directed his own crew."

These facts did not support the conclusion that "Manning had the right to control the time or activities of Rubens." Moreover, the court noted, the plaintiffs certainly did not prove that "the shooting of Irving was within the course and scope of Rubens’s employment," which would have required a showing that Rubens was "acting within the ambit of his assigned duties and also in furtherance of [Manning's] objectives."

Continue reading " New Orleans Shooting Leads to Wrongful Death Action " »

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, unfortunately, times come when the expected level of care fails to come to fruition, and an action for medical malpractice arises. In March of 1993, a Tallulah, Louisiana, resident began a series of trips to doctors in hospitals in which his continued back, shoulder, and neck pain eventually led to lung cancer. The Tallulah, Louisiana resident, Mr. Kerry Scarborough, died 2 years later in March of 1995.

For a malpractice claim against a hospital, plaintiffs like Mr. Scarborough's mother, suing in her son's name, must prove by a preponderance of the evidence first, that the defendant owed the plaintiff a duty to protect against the risk involved, essentially providing a standard of care that the plaintiff was owed, second, that the defendant breached that duty or standard of care, and third, that the injury was caused by that breach. A hospital can be sued for its own negligence (such as failure to keep its facilities clean), or under a theory of vicarious liability, in which a plaintiff alleges that the hospital is liable for the negligence of one of its doctors. Of course, a medical malpractice action can be extended to any health care provider, including dentists, nurses, hospital workers, physical therapists, radiologists, and more.

Louisiana revised statute 9:2794 provides the statutory language laying out the plaintiff's burden for a general malpractice action:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., . . . the plaintiff shall have the burden of proving: (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, . . . licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians . . . within the involved medical specialty. (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill. (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Generally, expert testimony is required to establish the degree of care that the defendant must meet and whether that standard was breached, except where the negligence is so clear on its face that an expert is unnecessary. Whether an expert's particular testimony will be admissible depends on whether a trial judge finds them qualified to testify as an expert, analyzed under what is called a 'Daubert standard,' in which the court will look at a variety of factors regarding the expert's background.

In Mr. Scarborough's case, not all his expert's met this standard, and some testimony that could have potentially helped his case was barred and never heard. We understand these complex issues patients face in these types of lawsuits, and are here to help you get through those difficult times. If you feel you were the victim of inadequate medical care, picking experts that will be able to assist in winning your case is critical.

In Louisiana, medical malpractice suits like Mr. Scarbourough's can be brought against either qualified health care providers, or non qualified health care providers. There will be a cap on liability of $100,000 for what is referred to as a QHCP, but there will be no cap on a NQHCP. A QHCP has paid into a state insurance fund called the Patient Compensation Fund and, as such, limits their own liability. This difference is critical, as any medical malpractice actions brought against a qualified health care provider must first go to a panel consisting of three doctors and one non-voting attorney. This panel determines whether the evidence in a case like Mr. Scarborough's (assuming a qualified health care provider) demonstrate that a doctor or hospital failed to meet a given standard of care. The decision of the panel is treated like that of an expert's testimony and may be used during court proceedings.

Nuances such as these are important to understand, especially in the technical field of medical malpractice. The term "medical malpractice" is so broad, and includes things such as a doctor's failure to take adequate medical history, failure to prescribe correct medications, and other negligent acts or omissions by a health care provider that leads to an injury.

Continue reading " Inadequate Medical Care and the Legal Ramifications Capable of Causing Life-Changing Problems " »

Early in the morning of August 25, 2006, Angela Brignac visited a McDonald's in Baton Rouge. While she was stopped at the drive-thru's menu board, her car was struck from the rear by a truck operated by Brian Mumphrey. The collision occurred because Mumphrey's foot slipped off the brake pedal when he bent down to retrieve his wallet from the truck's floor. Brignac did not call the police, but did exchange information with Mumphrey. She then ordered breakfast and went on her way. Later that evening, after Brignac went home and discussed the accident with her boyfriend, she called the police to report the accident and went to the hospital to be examined.

Approximately a year later, Brignac filed a lawsuit against Mumphrey and Farm Bureau, his insurance carrier. Brignac's complaint alleged injuries to her right shoulder, back, neck, head, mouth, and jaw as a result of the collision. The trial court awarded Brignac $3,587 in damages for past medical expenses she incurred treating her jaw injury. It also awarded her general damages in the amount of $6,000, but denied her claims for past and future medical expenses for her shoulder injury. Brignac appealed this judgment, arguing that the trial court erred in failing to award medical expenses related to her shoulder injury. Brignac alleged that she had consistently complained of right shoulder pain from the date of the accident. She testified at trial that she reported both shoulder and jaw pain in the emergency room on the evening of the accident, but the shoulder issue was not documented in the ER records which were completed by both the ER doctor and the triage nurse. The first documented complaint of shoulder pain did not come until six weeks after the accident when Brignac was seen by Dr. Johnston who diagnosed her with a strained rotator cuff. Johnston prescribed pain medications, physical therapy, and exercise, and also administered cortisone injections in Brignac's shoulder. He testified at trial that while he believed Brignac's shoulder injury was related to the car wreck, his opinion was "based on history and what she tells me solely." Brignac did not follow Dr. Johnson's physical therapy recommendations and was eventually discharged as a patient from the therapy center for failing to show up for appointments. The First Circuit observed that "the trial court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident." And, after reviewing the record, the court could not say that the trial court's factual determination on causation was "manifestly erroneous or clearly wrong." The court held,

"Noting other possible causes for Ms. Brignac's shoulder injury, including the repeated lifting of her child, and considering the lapse of time between the accident and Ms. Brignac first seeking treatment for the shoulder problem, the [trial] court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident. We find no manifest error in this conclusion."

The court's conclusion reveals an important fact that all accident victims should keep in mind: in order to recover fully for an injury, it should be well documented by a medical professional. Ideally, the initial report of injury would be made immediately following the accident. Also, the courts generally take a dim view of plaintiffs who do not follow medical advice related to the treatment of an injury, so careful adherence to a doctor's orders is essential to maximizing the financial recovery.

Continue reading " Plaintiff Learns Painful Lesson About Treating Injuries Without Delay " »

On August 7, 2002, James Wilson was driving his car southbound on Essen Lane in Baton Rouge. When he attempted to make a left turn onto the on-ramp for I-10, Wilson pulled into the path of an oncoming car driven by Barbara White northbound on Essen. The crash left Wilson with serious injuries. Following the incident, Wilson filed suit against the Louisiana Department of Transportation and Development ("DOTD"). His complaint alleged that the DOTD negligently installed lane delineators on Essen Lane at the intersection with I-10; Wilson's negligence theory was based on his assertion that the lane delineators blocked drivers' view of oncoming traffic. Wilson asserted that the DOTD's negligence caused his accident because he couldn't see White's car when he attempted to turn onto I-10. After a trial the jury returned a verdict in favor of the DOTD. It found that the DOTD was not negligent and that its installation of lane delineators did not cause the accident. Wilson filed a motion requesting a JNOV which was denied by the trial court. Wilson then appealed on the basis that the jury's verdict was not supported by the evidence.

The First Circuit began it analysis with a recitation of the standard of review for a challenge based on the jury's alleged manifest error. Because the determination of negligence is a factual one, an appellate court must apply a two part test to reverse the jury's finding. Part one involves the appellate court's deciding that a "reasonable factual basis" does not exist in the record for the jury's finding; part two requires the appellate court to determine that the record establishes that the jury's finding is "clearly wrong." Additionally, when
factual findings are based upon the jury's weighing of witness credibility, "great deference" must be given its decision. The rule of thumb is that where there are two or more permissible views of the evidence, the jury's choice between them cannot be manifestly erroneous.

The court, in reviewing the record, discovered that conflicting witness testimony was presented at trial. The most significant point of divergence between the witnesses' testimony concerned the presence of traffic in the northbound left-turn lane of Essen Lane which would have blocked Wilson's view of oncoming northbound traffic regardless of the lane delineators. Wilson himself testified that there were no cars in the northbound turn lane. However, an eyewitness to the accident testified that there were several cars in the lane, a fact he was certain of because he had to navigate around them when he entered the intersection to assist Wilson and White following the crash. There was also some dispute among the witnesses' testimony about whether the lane delineators' location obstructed the view of traffic. White asserted that she had no trouble seeing southbound traffic over the delineators, but the police officer who responded to the scene testified that, based on his experience with other crashes at the same location, he considered the lane delineators a hazard and the intersection unreasonably dangerous.

The court, after a "careful review of the evidence contained in the record," found that a "reasonable factual basis for the jury finding that DOTD was not negligent" did in fact exist in the record. Further, the court could not conclude that the jury was clearly wrong: "The jury was faced with conflicting views of the evidence regarding whether a person sitting in a vehicle in the southbound left turn lane could see ... cars in the northbound lanes and clearly chose to believe the testimony that either [Wilson's] view was not obstructed or was obstructed by cars in the northbound left turn lane." Accordingly, the court affirmed the trial court's judgment and assessed costs to Wilson.

The particularly high obstacle to overturning a jury's fact-findings on appeal reflects the preference for factual disputes to be settled at the trial level rather than by an appellate court. Arguably, the jury has the best opportunity to consider all the evidence, including witness temperament and appearance, when resolving factual disputes. It is essential for a party who encounters an unfavorable jury verdict to retain experienced counsel before filing an appeal that is premised on a jury's commitment of manifest error, given the high level of deference afforded the jury.

Continue reading " Court Explores Standard of Review in Baton Rouge Car Wreck Case " »

The Bailey case, as discussed, was determined based upon the precedent set forth by the Louisiana Supreme Court in Bulot v. Intracoastal Tubular Services, Inc. The focus here is on two causes of action, Whether a plaintiff can file both, and receive punitive damages for, a wrongful death and survivorship cause of action.

The Plaintiffs in Bulot were two families who sued the defendant oil refinery for wrongful death and survival. The District Court granted summary judgment, meaning there were no genuine issues of material fact, in favor of the defendant as to one family's wrongful death action and its claim for punitive damages in its survival action. The Court also granted the defendant's exception of no right of action as to punitive damages for the second family's wrongful death action.

Each family had a family member that died after being exposed to radioactive waste. One family alleged that the deceased had worked for a company that engaged in the cleaning of oilfield tubing and pipes. He died of pancreatic cancer in 1999, allegedly as a result of exposure to radioactive waste while employed by the company. The second family's family member died while La. Civ. Code Ann. art. 2315.3 ('the statute') was in effect (between 1984 and 1996). The statute provided that punitive damages may be awarded, in addition to general and special damages, if it is proved by the plaintiff that the sustained injuries were caused by the defendant's "wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances."

In order to establish when a tort cause of action accrued in an occupational disease case like this, the plaintiff must present evidence that the exposures were significant and that such exposures later resulted in the manifestation of damages, in this case disease. In short, the exposures must be "significant and continuous."

The Appeals Court reversed the grant of summary judgment as to the first family's claim for punitive damages in its survival action, as it found there existed genuine issues of material fact as to whether the family's deceased relative's exposures to radioactive material on the jobsite from 1984 to 1992 resulted in his developing cancer. The Court affirmed the grant of summary judgment as to the family's wrongful death claim, however, because the deceased did not die while the statute was in effect. In addition, the Court affirmed the exception of no right of action for the second family's claim for punitive damages in its wrongful death claim. The Court determined that damages pursuant to the statute could not exist as a component of a wrongful death action because the law in effect at the time of death is the law that applies in wrongful death actions.

Although both causes of action arise from a common tort, survival and wrongful death actions are separate and distinct. Each arises at a different time and provudes for damage awards for different injuries and losses. A survival action exists simultaneously with the tort and transmits to the beneficiaries (decendents) upon the victim's death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. A wrongful death action arises once the victim has died and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and after. The statute limits a survivor's recovery to damages actually suffered as a result of the deceased's death, and cannot recover punitive damages as a result.

A claim for damages pursuant to the statute cannot exist as a component of a wrongful death action, as a wrongful death action is limited to compensatory damages for the victim's own injuries. Punitive damages may be awarded, if it is proved that the plaintiff's injuries, were caused by the defendant's disregard for public safety, but the statute provides for the survivors of the original tort victim to recover all damages for injury to that person, his property or otherwise, caused by the offense.

Continue reading " Louisiana Wrongful Death and Punitive Damages Award in Oil Refinery Release (Part II) " »

The Bailey v. Exxon Mobil Corporation case finds its conclusion based on the precedent set forth in Bulot v. Intracoastal Tubular Services. The focus is on the application of a statute, and differentiating events that take place prior to the statute's enactment, and how the Court will analyze events that continuously occur which began before the enactment of the statute and continue after its enactment.

The issue before the Court in Bailey is whether the plaintiffs’ claims for punitive damages in a wrongful death action are precluded by Bulot. The plaintiffs in Bailey alleged that either they or their decedents were exposed to naturally occurring radioactive material at over 600 pipe yards throughout Louisiana, six other states, and overseas, through their work with, or with a subsidiary of, the Exxon Mobile Corporation. They also alleged they were entitled to punitive damages under former Louisiana Civil Code Article 2315.3.

Punitive damages are intended to reform or deter the defendant and others from engaging in similar conduct to that which formed the basis of the lawsuit. Punitive damages are not intended to compensate the plaintiff, however, the plaintiff often receives most if not all of the punitive damages award. The Court states that the statute in question, La. C.C. art. 2315.3, effective September 3, 1984 and repealed April 16, 1996, provided for punitive damages "if it [were] proved that plaintiff’s injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances." The court in Bulot states that "punitive damages cannot be recovered by way of a wrongful death action. The right to a punitive award is a different kind of right or legally enforceable claim than the right to compensatory damages. As such, a claim for damages pursuant to La. Civ. Code Ann. art. 2315.3 cannot exist as a component of a wrongful death action, as that is limited to compensatory damages for the survivor's (victim's) own injuries."

In Bailey, the defendants filed numerous exceptions, including peremptory exceptions of no cause of action for punitive damages for plaintiffs’ wrongful death claims based on the Court of Appeal of Louisiana, Fourth Circuit's holding in Bulot v. Intracoastal Tubular Services, Inc. The District Court sustained the defendants’ exceptions of no cause of action for punitive damages in a wrongful death case.

In Bulot, the widow and children of a deceased employee brought survival and wrongful death actions against his employer. They alleged that the deceased’s cancer was the result of occupational exposure to radioactive waste while cleaning oilfield pipes. The District Court granted the employer’s motion for summary judgment on the punitive damages claims. His widow and children then appealed to the Court of Appeal where it was held that there were genuine issues of material fact which precluded summary judgment on the punitive damages claim in the survival action. The Court of Appeal also held that punitive damages could not be recovered through a wrongful death action. Thus, according to Bulot, the plaintiffs in Bailey are precluded from recovering punitive damages in a wrongful death action.

For a further discussion of Bulot v. Intracoastal Tubular Services, Inc. please continue reading Part II of this post. If, however, you feel as though you have read all you need and have questions or need expert advice in a potential wrongful death claim of your own, then please do not hesitate to contact the Berniard Law Firm.

Not all employees furthering a vessel's mission are seamen. They can provide short-term or even land-based support. If so, they aren't seamen under the federal Jones Act. Whether Kerry Becnel was a seaman when he was injured was the issue considered in Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11). The court of appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

In the U.S. Supreme Court case of Chandris, Inc. v. Latsis, the first question to determine whether an employee is a seaman is simple: did the employee "contribute[ ] to the function of the vessel or accomplishment of its mission." Becnel did contribute. He worked 17-hour days in preparing meals, cooking food, and cleaning. He sustained injuries when he fell off a barge at the end of one of those long working days. The parties did not dispute that Becnel met this test.

The second part of the Chandris test is harder: "whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature." Two questions arise. Did the employee have a connection to a vessel in navigation? Was that connection substantial in its duration and nature.

Did Becnel have a connection to a vessel? The barge owner, Chet Morrison Contractors, Inc. (CMC), argued that Becnel did. Becnel's employer, Coastal Catering, L.L.C. and its insurer State National Insurance Co. (SNIC) argued that Becnel did not because Coastal randomly assigned Becnel to its customers. Becnel's assignments, Coastal said, were more often fixed platforms than boats. But this means of employment does not prevent one from being a Jones Act seaman. Seaman status cannot be defeated merely because someone in the future could be assigned a non-seaman role or "could have been assigned to other work locations." What matters is that the person is "continuously subjected to the perils of the sea and engaged in classical seaman's work."

Becnel was "a day-cook/steward and a night cook" with his employer, Coastal, which served a number of customers. Becnel had worked for 153 days at seven different job sites, including five of Coastal's customers. These customers included dive boats, drilling ships, and fixed platforms. But, CMC said Becnel always worked on an identifiable fleet of vessels, and Becnel said all of his assignments were part of a CMC project. The court of appeal found these facts did not result in a clear answer to whether Becnel was connected with a vessel. It could not be resolved on summary judgment.

Did Becnel have a substantial connection in duration and nature with a vessel? The ordinary case in the U.S. Fifth Circuit requires at least 30% of one's time in service of a vessel in navigation to qualify as a Jones Act seaman. Circumstances may justify a lesser percentage of time. The parties disputed how to compute Becnel's percentage of service. Coastal and SNIC argued that Becnel was not a seaman because he worked less than 30% of his time on CMC vessels. But, CMC said that Becnel met the test when considering all his assignments with Coastal.

The court looked at the evidence on either side of the argument. By Coastal's tally, Becnel had worked for 153 days on seven jobs for periods ranging from seven days to 52 days. Within those 153 days, 64 were spent on fixed platforms and 35 were on CMC barges. Coastal and SNIC argued that 35 days was only 23% of Becnel's time in service, and that wasn't enough to qualify as a seaman. One witness also doubted that CMC owned the quarters barge where Becnel worked. Others had testified, instead, that Becnel had always worked on barges or vessels of some type.

The discrepancy could be resolved only by weighing of evidence and determining the credibility of witnesses. Those things are matters for a trial court, not an appellate court that does not see the witnesses. The court of appeal determined that Becnel's seaman status could be decided only by the district court.

The right to a jury trial for personal injuries may be the difference that allows recovery for a seaman's injury. In a specialized economy in which services are provided by third parties, it may be difficult to determine whether one is considered a seaman under the Jones Act. Becnel's circumstances provide a warning. A trained lawyer will be able to ask the right questions to find out the important facts and how they affect your case.

Continue reading " Trial Necessary to Determine Jones Act Applicability (Part 2) " »