the-gas-station-1526346-768x1024Under Louisiana law, store owners can be held liable for damages if a customer is injured by an unsafe condition while visiting the premises. In November, 2011, Henry Moore, Jr. visited the Murphy Oil gas station and convenience store in Hammond, Louisiana. After making his purchases at the store’s counter, Moore started back toward his car when his foot came in contact with a black plastic pallet supporting a display of bottled water. Moore tripped and stumbled, but didn’t fall to the ground. He then reported the incident to manager on duty. After the incident, when Moore began to suffer back pain, Murphy Oil agreed to pay for Moore’s medical treatment. When Murphy Oil stopped paying for Moore’s treatment after approximately four months, Moore filed a lawsuit for damages, alleging that the water display created an unreasonably dangerous condition.

In Louisiana, merchants are required to exercise reasonable care to protect those who enter the premises.  This duty extends to keeping the premises safe from unreasonable risks of harm and warning customers of known dangers. See La. R.S. 9:2800.6. Courts have adopted a four-part balancing test to determine whether a condition is unreasonably dangerous. One part of the test involves determining whether the defective condition was “open and obvious.” In general, if a hazard in open and obvious, a defendant does not have a duty to protect against the hazard. See Hutchinson v. Knights of Columbus, 866 So. 2d 228, 235 (La. 2004).

The trial court, holding that the question of whether the bottled water display created an unreasonably dangerous condition was a factual dispute, denied Murphy Oil’s motion for summary judgment and set the matter for trial. Moore agreed to a $50,000 damages cap, and the court based its ruling on a contributory negligence spectrum. The court found that Moore was 25% at fault for his injuries and was awarded a judgment for $37,500 against Murphy Oil. Murphy Oil appealed, arguing both that the trial court erred when denying its motion for summary judgment, and that the trial court should have subtracted the medical expenses it had already paid when determining Moore’s award.

Qualified immunity is a concept that is designed to protect civil servants from lawsuits for their official actions. The “qualification” means that immunity does not operate for actions that are unlawful or that show extreme incompetence. Generally, under Louisiana law, law enforcement officers are entitled to immunity so long as their actions do not violate statutes or infringe on others’ constitutional rights. Negligence alone is not sufficient to limit immunity. An officer maintain qualified immunity up to the point of “going too far,” which is what happened during an incident at a Lafayette apartment in December, 2011. On that evening, Quamaine Mason stopped by his girlfriend’s apartment to pick up his dog when he saw the father of his girlfriend’s child and another man in the apartment with her. Mr. Mason proceeded to bang on the door until his girlfriend opened it. He threatened both men with his gun and they left the apartment. One of the men called the police, claiming Mr. Mason broke into the apartment with the intention of stealing the dog. Officer Martin Faul of the Lafayette Police Department arrived on the scene. When Officer Faul ordered Mr. Mason to put his hands up, the action revealed that Mr. Mason was carrying a firearm. Ultimately, Officer Faul fatally shot Mr. Mason seven times.  

Witness testimony at trial differed. Officer Faul testified that Mr. Mason was going to pull his gun, leading him to shoot Mr. Mason first. Mason’s girlfriend, however, testified that Mason was lying on the ground barely moving with his hands by his sides when at least two of Officer Faul’s shots were fired. Mr. Mason’s parents (the “Masons”), both individually and on behalf of their son, brought multiple claims against the officers involved and the police department.

The Masons’ claims were based on 42 U.S.C. § 1983, alleging that Officer Faul violated the US Constitution. First, his use of excessive force violated Mr. Mason’s Fourth Amendment rights; next, Officer Faul deprived Mason of substantive due process under the 14th Amendment by engaging in actions that “shock the conscience”; finally, Officer Faul violated Mason’s Eighth Amendment rights by acting with deliberate indifference to his medical needs after the shooting. The Masons also brought civil claims against the City of Lafayette. Officer Faul asserted the affirmative defense of qualified immunity, and the defendants’ motion for summary judgment was granted by the trial court. The Masons appealed to the U.S. Fifth Circuit Court of Appeals.

roof-1171576-1024x768The Louisiana Code of Civil Procedure provides that a court has wide discretion in granting a continuance (a postponement of the proceedings) in any case where appropriate. See La. C.C.P. art. 1601. But what constitutes appropriate grounds for a continuance? A court must take into account the specific facts of the situation in order to determine whether a continuance should be granted. A recent case in the Louisiana Court of Appeal explains this process.

The roof of Mr. and Mrs. Abington’s Baton Rouge home was damaged in Hurricane Isaac. The Abingtons contacted Mr. Spears of the Louisiana Roofing Company to replace the roof. The company not only failed to complete the roof repair, but subsequently caused more damage to the Abingtons’ home. After the Abingtons filed a lawsuit, the case was continued three times at the request of Mr. Spears. The first continuance was granted due to Spears’s failure to answer depositions and to answer discovery requests. The second continuance was granted so Spears could find a new attorney; Spears’s first attorney requested to withdraw from the case due to Spears’s volatile behavior, making her fear for her safety. The third continuance was granted to Spears’s new attorneys so they could get acquainted with the case.

Several days before trial, Spears filed a pro se motion for a continuance. (A pro se motion is one filed by the litigant himself, without the aid of an attorney.) The request was denied by the trial court. Two days before trial, he fired his second set of attorneys, and hired a new attorney who requested another continuance for trial preparation and to avoid a scheduling conflict. This request was also denied. At trial, no counsel appeared to represent Spears, so he once again asked the court for a continuance. The request was denied and the trial proceeded, resulting in a judgment in favor of the Abingtons.

dealer-1315871-1024x768People bring lawsuits in order to obtain compensation for wrongs they have endured. Even when there is no dispute about liability, determining the appropriate categories and amounts of damages can be complicated as it involves numerous legal and technical issues. Damages can encompass everything from past and future medical expenses to scarring to loss of enjoyment of life. However, there must be sufficient evidence from which a court can draw to support the award of damages. The following lawsuit that stemmed from a fight at a casino illustrates some of these principles.

Picou intentionally battered Daigle at a bar at L’Auberge du Lac Casino in Lake Charles, Louisiana. Daigle suffered a split lip, bruising, and has had headaches ever since. Picou admitted liability, leading to a bench trial on the issue of damages.  The trial court awarded $3,000.00 for past medical damages, $10,000.00 for past and future pain and suffering, $5,000.00 for scarring and disfigurement, $5,000.00 for past and future impairment, $2,000.00 for loss of enjoyment of life, $10,000.00 for past and future mental anguish, and $5,000.00 for past and future disability. Picou appealed the damage award, claiming that the trial court erred in awarding Daigle an excessive amount of damages.

La C.C. Art. 2315(A) (2017) states that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” When reviewing a trial court’s damage award, the appellate looks at the facts and circumstances of the case to determine if the trial court abused its discretion. Miller v. Lammico, 973 So. 2d 693, 711 (La. 2008). The appellate court will only overturn an award of damages if it finds that the trial court abused its discretion in awarding the damages.

the-old-school-1548001-1024x768In Louisiana, determining the allocation of fault is an important part of lawsuits because it directly impacts the damages you can be awarded. If you are found 40% at fault, then you will only be able to collect damages for 60% of total damages.

Bordelon was employed by Avoyelles Parish School Board as the girls’ basketball coach for Marksville High School. Bordelon held practice on Sunday, but showed up with allegedly an alcoholic beverage in his hand and allegedly appeared highly agitated. The next day, Bordelon did not arrive at school. The school principal, Allgood, and another coach went to Bordelon’s home to check on him. Bordelon told them he did not want them there. Later that day, Bordelon went to school and met with the principal. Bordelon was heard screaming and cursing. He then left the school and Allgood followed him. They got in a fight, the specifics of which are disputed. Allgood sought medical treatment for his injuries. Allgood then filed a lawsuit against Bordelon and the Avoyelles Parish School Board.

There was no dispute that Bordelon battered Allgood, so the case focused on whether Allgood contributed to the battery. The jury found that Allgood was 60% at fault, so he was awarded no money. Allgood appealed, arguing that the jury erred in assigning him 60% of the fault in causing the battery because he did not commit any intentional act that caused or contributed to the battery. Allgood also argued that the jury erred in failing to award him any general damages or damages for future medical expenses.  

body-massage-1428380-683x1024Imagine going to get a massage and leaving with an injury that forever altered your life. After such an injury, it is difficult to put a dollar value on these injuries. The following lawsuit discusses the types of damages that can be sought by a Plaintiff who believes that they have been injured by a massage gone wrong.

In October 2007, Maureen Jones received a Swedish massage from Larry Ashton, Jr., a massage therapist employed by Paris Parker Salon in Baton Rouge, Louisiana. Jones reports that the massage therapist was “rough and aggressive” during the massage, causing her pain and discomfort. By the next day, she experienced sharp and burning pain. She sought medical attention and discovered she had ruptured a disc.

In October 2008, Jones sued Neill Corporation, who was doing business as Paris Parker Salons, Ashton, and ABC Insurance Company. She alleged that Ashton negligently performed the massage and he breached the reasonable standard of care, causing serious, permanent, and disabling injuries. The trial court found in favor of Jones and founding that Ashton breached the applicable standard of care. The trial court awarded damages consisting of pain and suffering, mental anguish and distress, loss of enjoyment of life, permanent disability, past lost wages, and past medical expenses.  

ancient-ruins-flooded-by-water-1622023-1-1024x683There are multiple requirements and policies that claimants must follow in order to be eligible to recover on a claim under a National Flood Insurance Program (“NFIP”) Standard Flood Insurance Policy (“SFIP”). See 44 C.F.R. pt. 61, app. A(1) art. VII sec J (2009). Failure to comply precisely with these requirements will prevent claimants from recovering for their claims. The following lawsuit reviews the “proof of loss” requirement and what can occur if one is not submitted with your flood claim. 

Cummings’s home in LaPlace, Louisiana was damaged by Hurricane Isaac in August 2012. Cummings submitted a flood loss claim to Fidelity. Fidelity assigned an independent adjuster to inspect the flood damages. Cummings worked with the independent adjuster to file a signed proof of loss for approximately $42,000, as required by his SFIP. Fidelity subsequently paid Cummings for the $42,000 in building damage, as requested in his proof of loss. Cummings also submitted a four-page list of the contents he claimed were damaged in the flood. He claimed these had a total replacement value of over $104,000. However, Cummings never submitted a proof of loss for the claimed damages to his home’s contents. Cummings also failed to include the amount on the front page of his proof of loss. Fidelity denied Cumming’s claim for content loss, providing a letter that stated that Fidelity required additional proof to assist in proof of damage and ownership of the claimed contents. The letter instructed Cummings to review his insurance policy agreements and forms, but did not tell him to submit an additional signed and sworn proof of loss.

Cummings filed a lawsuit for the contents of his house that he claimed were damaged in the flood. The district court awarded Cummings $25,000 plus interest, holding that Cummings’ photographs, testimony, and written statement were sufficient proof of loss. Fidelity appealed.

rain-rain-and-more-rain-1473187-1024x768The National Flood Insurance Program (“NFIP”) is intended to provide affordable flood insurance on fair terms. The Federal Emergency Management Agency (“FEMA”) is responsible for administering and regulating NFIP. There are multiple requirements and policies that claimants must follow in order to be eligible to recover on their claim. The following lawsuit looks at the requirements necessary to prove flood damages under the terms of a Standard Flood Insurance Policies (“SFIP”).

Construction Funding owned a piece of property located in Mandeville, Louisiana that was insured under a SFIP issued by Fidelity Insurance Company. Construction Funding claimed that this property suffered flood damage from Hurricane Isaac in August 2012. Construction Funding submitted a claim to Fidelity for a loss of approximately $76,000.

Fidelity is a participant in the NFIP and issues SFIP to NFIP participants. Although FEMA sets the terms of the SFIP, Fidelity is responsible for handling all claims arising under its SFIPs. Fidelity denied the claim, stating that the damages were unsubstantiated and there was insufficient proof that the damage was caused by Hurricane Isaac rather than a prior flood. Thereafter, Construction Funding filed a lawsuit against Fidelity. Fidelity claimed that Construction Funding was not eligible to bring the lawsuit because it had not complied with the SFIP’s terms.

its-a-bird-its-a-plane-1450973-1024x683You may think that your company would be pleased if you try to comply with company policies. However, this is not always the case, especially when following policies can lead to adverse outcomes for the company, such as delayed flights or lost profits.

Roger Luder worked as a pilot and captain for Continental Airlines (CA). He was scheduled to fly from Miami to Houston He received a report from a co-pilot on an earlier flight from McAllen, Texas to Houston that the plane had previously encountered significant turbulence. Luder confirmed the turbulence, but noted that it was not in the aircraft logbook as required by CA’s protocol. Luder then logged the severe turbulence himself and called Operations Control to order an inspection. Operations Control ordered Luder to board the passengers for the next flight as scheduled, by Luder refused. Luder then received phone calls from several other officials at CA. These officials argued that the plane did not need an inspection because the turbulence was only moderate, not severe. After repeated calls, Luder threatened to report CA to the Federal Aviation Administration (“FAA”).

CA then inspected the aircraft. It found no defects, but the take-off of the next flight was delayed over thirty minutes. CA subsequently held an investigatory meeting and notified Luder in writing that he was suspended without pay and subject to a termination level warning for future improper conduct. CA claimed Luder received these sanctions for calling for the inspection in an unprofessional manner without following company procedure.

les-landes-mauriac-france-1492015-1024x768This is a continuation of a previous post on the “DE Property,” an enclosed estate in St. Martin Parish.

Where there is an enclosed estate, which is a property that cannot get to a public road, Louisiana law allows the owner of the estate to force an adjoining property owner to allow them to cross their property. La. C.C. art. 689. That passage usually has to be taken in the shortest manner across the other person’s property. La. C.C. art. 692. Once a trial court determines the choice of route that should be granted, any review by an appellate court is a manifest error standard. May v. Miller, 941 So.2d 661 (La. Ct. App. 2006).

A consent judgment is a functional contract between two parties that puts an end to a lawsuit. Plaquemines Par. Gov’t v. Getty Oil Co., 673 So.2d 1002 (La. 1996). Because it is a contract, a consent judgment has no effect on a third party unless otherwise provided by law. La. C.C. art. 1985. Louisiana public policy encourages settlements, including by consent judgments. Domingue v. Luke Fruge, Inc., 379 So.2d 490 (La. Ct. App. 1979). Louisiana law also recognizes that a consent judgment may not be attacked through an appeal of a collateral judgment, as an appeal is inappropriate for relief from a consent judgment. Lee v. Marksville Ford L/M, Inc., 741 So.2d 122 (La. Ct. App. 1999). A consent judgment can only be attacked collaterally for the reasons listed in La. C.C.P. art. 2002.