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.

farm-land-1558948-1024x768Imagine your property surrounded by land and water on all sides. Imagine that this land and water do not belong to you. To get to your own property, you use a wood trail, and you have used this trail regularly for four decades. But one day the surrounding land is sold, and the new owners want more privacy. They set up fences and “No Trespassing” signs to keep you off their property. Now your only access to your property is a public canal. Can the courts protect you? The Louisiana Third Circuit Court of Appeal (“Appellate Court”) intends to do so.

Nestled in St. Martin Parish near Herman Dupuis Road and buttressed by a public borrow canal is a piece of land known as the Ovide Daigle, Sr. Estate (“the DE Property”). This property has been co-owned by Harvey Altemus for over 55 years. Since that time, the land surrounding the DE Property has changed hands, and at the time of litigation, the surrounding land was owned by Helene Jeanne Boudreaux, Faye Guidry Hebert, Shelby Guilbeau, Michael Kidder (D/B/A Kidder Corporation), Michael and Phyllis Marks, and the State of Louisiana. Each of these individuals owned a separate piece of property surrounding Mr. A’ property. Except for Michael and Phyllis Marks (“the Markses”), the property belonging to the owners was previously owned by ALC Corp. The DE Property is almost completely landlocked by properties not belonging to its owner. In fact, the only pieces of the DE Property not surrounded by other people’s property is the area buttressed by the public borrow canal. Mr. A cannot access HD Road, the nearest roadway, without crossing another owner’s land or using the canal.

In 1974, the Markses allowed Mr. A to begin parking on their property, and ALC Corp allowed Mr. A to get into his land by way of  a 30 foot wide path that went over its land. This informal arrangement continued for 24 years until Mr. A learned in 1998 that ALC Corp planned to sell or donate its property surrounding the DE Property. On May 1, 2000, Mr. A and ALC Corp executed an “Access Permit” to give Mr. A official use of the path. ALC Corp then transferred all of its land abutting the DE Property to the State of Louisiana and sold several parcels of land bordering Herman Dupuis Road. The sale to Helene Jeanne Boudreaux (“Mr. B”) included reference to the Access Permit trail, even though this trail was not officially recorded at the time of execution. The rest of the property sold to Kidder Corporation, Shelby Guilbeau, and Faye Hebert were all made required to be subject to all previous servitudes and the like on the property. Mr. A continued using the trail until he met with Mr. B on this wood trail in 2010. After this meeting, Mr. B requested the State remove the Access Permit. The State agreed and sent a by sending Mr. A a letter to this effect. At this point, in 2011, Mr. A recorded the Access Permit, and Mr. B put up a fence blocking Mr. A’s access to his own property. Hebert and Guilbeau then put up signs on the property telling others entry was not allowed, blocking Mr. A’s opening to the trail. On September 4, 2013, Mr. A filed a Petition for Declaratory Judgment and for Damages against the State of Louisiana, Mr. B, Hebert, Guilbeau, and Kidder Corporation (the Markses were later joined in an amended petition) seeking a court recognition of the 30-foot trail as an apparent servitude giving Mr. A a right to cross the properties. Both the State and the Markses entered into Consent Judgments with Mr. A. The remaining property owners sought to strike these Consent Judgments. At trial, the court granted Mr. A his right-of-way and declined to award damages. Mr. B, Hebert, Guilbeau, and Kidder (collectively “Appellants”) appealed the decision of the Trial Court.

school-bus-1431472-1024x609Entrusting a child to the care of a school bus requires a certain amount of faith that they will arrive at the correct destination, safely.  For any parent or guardian this evokes a certain amount of anxiety. For a parent with a special needs child, this act of faith likely garners even greater angst. Unfortunately, one Lafourche Parish parent’s fears materialized when her special needs son was struck by a car at his bus stop one afternoon. Whether the Lafourche Parish School Board (“LPSB”) could be held responsible became an issue for a jury in this recent lawsuit.   

Thibodaux High School student Diamonte Bolden was hit by a car after exiting his school bus one afternoon in December of 2012.  Although only in ninth grade, Diamonte was seventeen years old at the time of the accident. He was in the special education program and contended with a variety of learning disabilities including language delays.  Diamonte’s bus stop was at an intersection located about half a mile from his home. The availability of sidewalks or other safe walking space along the walking route from bus stop to house was in dispute. Diamonte’s mother filed a lawsuit against LPSB, the driver of the car, and various others.  At issue in the lawsuit against LPSB specifically was whether LPSB could be held liable for failing to reasonably supervise a student in light of the bus stop location and whether the accident was foreseeable.

Louisiana law provides that a school board owes a duty of reasonable supervision over its students.  See Wallmuth v. Rapides Parish School Bd., 813 So.2d 341, 346 (La. 2002). Liability for inadequate supervision requires a finding of negligence plus a connection between the negligence of the school board and the damages suffered by the student. The Louisiana Board of Elementary and Secondary Education has the authority to promulgate regulations relating to the operation of school buses pursuant to La. R.S.17:164.

school-1231939-1-1024x691It’s the subject of Lifetime Channel movies but something that no parent ever wants to believe would ever really happen.  A teacher, a person in authority over minors, takes advantage of a student and engages in sexual misconduct. When this happens, is it ever appropriate to apportion some percentage of fault to the student?  In a recent lawsuit out of Calcasieu Parish, the school board attempted to answer that question in the affirmative, but was taught a different lesson by the Louisiana Third Circuit Court of Appeal.

 Parents Steven and Leslie Gillespie filed a lawsuit on behalf of their sixteen year old daughter against the Calcasieu Parish School Board (“Board”) and its employee Lance Duhon for sexual misconduct.  The Gillespie’s daughter was a student at Sam Houston High School in Moss Bluff, Louisiana when she was solicited by Mr. Duhon to perform sexual acts in the classroom. These acts of sexual contact occurred daily for months until Mr. Duhon was arrested. This was not, unfortunately, Mr. Duhon’s first sexual misconduct accusation.  Five years prior to his abuse of the Gillespie’s daughter, Mr. Duhon engaged in similar conduct with another student at a different high school which resulted in Mr. Duhon not being rehired. Somehow he was hired at Sam Houston even though the Board had knowledge of his behavior at the other school.

Following a jury trial before the Judicial District Court for the Parish of Calcasieu, the Board was found to be 40% at fault, Mr. Duhon 50% and the Gillespie’s daughter 10% at fault. Punitive damages in the amount of $300,000.00 was assessed against Mr. Duhon.  The Gillespie’s appealed asserting it was erroneous to apportion fault to their daughter and asserted that punitive damages should also be imposed against the Board.

guernsey-cattle-1360068-1024x768Families. While often a source of love and comfort, families can at times be the source of much conflict. Sometimes the death of a parent turns siblings against one another rather than binding them together.  Greed can cause people to fight over insignificant or even imaginary problems. Such was the case for a large Allen Parish sibling group when they engaged in a legal battle over cows following the death of their mother.  A battle that the Louisiana Third Circuit Court of Appeal refused to engage in.

The Martin family of Allen Parish, composed of six siblings, owned a plot of land indivision with one another (basically, each person owns the property equally). Sister Sheila grazed cattle on the land. The cows might have belonged to the siblings’ mother before she passed however Sheila claimed the cows were solely her property. There was no proof of ownership either way.  The family troubles began when sister Linda and her husband Carlos moved onto the property. Sisters Sheila and Amy alleged Linda and Carlos would purposefully leave gates open so the cattle could escape. In one unfortunate instance, a cow and the three baby calves she was pregnant died after allegedly escaping the pen due to Carlos’ activities. Sheila and Amy also claimed that Carlos stole several gates, purposefully left harmful food out for the cows, and blocked with his car portions of the property.    

Sheila and Amy filed a lawsuit in the Judicial District Court for the Parish of Allen claiming damages for the lost cow and eventually sought to hold defendants in contempt of court for failure to move his car from the land.  The District Court denied the claim for damages and contempt but ordered the return of the stolen gates. An appeal was filed to the Louisiana Third Circuit Court of Appeal.

helicopter-1450413-2-683x1024For a negligence lawsuit to have any chance of survival, an essential element is to show the plaintiff had damages. Often these damages are obvious physical injuries.   Sometimes however, damages claimed are for emotional distress. Due to its intangible nature, emotional distress can be extremely difficult to prove and a lawsuit for such damages can be equally difficult to maintain.  In a recent case out of the Parish of Lafayette, a Louisiana man failed to prove all the necessary elements to sustain his emotional distress lawsuit despite the lawsuit centering on a helicopter crash.

Plaintiff Hayward Allen worked on an offshore rig owned by an oil company.  Mr. Allen took a helicopter to his job site. Defendant PHI, Inc. (“PHI”) owned and operated the helicopters delivering the employees to the rig. In December 2009, one of PHI’s helicopters rolled over while dropping off some passengers on the rig where Mr. Allen was working. No one was injured in the accident. Mr. Allen did not even see the incident because he was sixty feet below the helipad when it occurred. Because of this incident however Mr. Allen claimed he could no longer work because he was now too afraid of helicopters. Mr. Allen alleged to be suffering from chest pains, sleep problems, anxiety and elevated blood pressure from the emotional distress brought upon him from the helicopter incident. Mr. Allen filed a lawsuit in the Judicial District Court for the Parish of Lafayette. The District Court granted a directed verdict in favor of PHI because Mr. Allen failed to offer any evidence of PHI’s liability or negligence.   

A directed verdict is granted only when the evidence overwhelmingly points to one conclusion.  See Carter v. Western Kraft Paper Mill, 649 So.2d 541, 544 (La. Ct. App. 1994).  The facts must so strongly support judgment in favor of one party that the court must determine reasonable people could not reach a contrary verdict.  Directed verdicts do not require the assent of the jury. See La. C.C.P. art 1810.  To have any chance at success in a negligence claim, including an emotional distress claim, a plaintiff must show that the defendant was the cause of the plaintiff’s injuries.  See La. C.C. art 2315.6.