court-fez-morocco-1235115-1024x768In order to prevail in a lawsuit, the plaintiff must have a “cause of action,” which is a theory of law supported by facts that the court can recognize as a path to providing the plaintiff a remedy.  At trial, a defendant may raise a peremptory exception — essentially an argument that the court cannot help the plaintiff with his or her problem — if the plaintiff’s petition does not allege facts that support the cause of action.  

In March of 2005, John Rombach resigned from his position in Baton Rouge as fiscal officer for the State of Louisiana. Rombach’s job was to analyze the financial effects of proposed legislation on the government, including tax revenue. He claimed that he was so good at his work that he made enemies of some of the officials whose legislation he recommended be rejected due to their high cost. He further claimed that these opponents attempted to have him removed from office on the basis of supposed inappropriate payments he made to himself.

Rombach found himself before the Louisiana Board of Ethics in 2010. After the Board of Ethics ultimately dismissed all complaints against Rombach, he filed a lawsuit for defamation, malicious prosecution, and abuse of process against the “opponent” state officials who he believed filed the ethics complaints that led to the Board’s investigation. The defendants filed peremptory exceptions, claiming that the facts alleged by Rombach did not support a theory of law that would permit the court to award Rombach damages. Though the trial court denied these peremptory objections, it nevertheless dismissed the case. Rombach appealed to Louisiana’s First Circuit Court of Appeal.

modernist-hospital-facade-1223549-768x1024Generally, when an accident occurs on a property that is the result of the property owner’s negligence, it is presumed that the property owner is liable for the person’s injury. However, when liability does not exist, a motion for summary judgment is a procedural device that the defendant in a lawsuit can use to dismiss the plaintiff’s claim. Under Louisiana law, a motion for summary judgment will be granted if the pleadings and discovery show there is no genuine issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. See La. C.C.P. art. 966.

A trip-and-fall case offers an example of a defendant’s successful use of summary judgment. On October 11, 2007, James Dawson tripped and fell on the sidewalk near the entrance to Charity Hospital in New Orleans. He tripped on a crack in the sidewalk and suffered injuries as a result. Contending the State of Louisiana, as the owner of the hospital, was liable for failing to maintain the sidewalk, Dawson filed a lawsuit.

The State moved for a motion for summary judgment. In its motion, the State disputed Dawson’s allegation that it had authority over the sidewalk where his injuries occurred, arguing that without proof of authority, it could not be liable for Dawson’s injuries. See La. R.S. 9:2800. The State supported its motion with affidavits from Frederick L. Wetekamm, an engineer for the Louisiana Department of Transportation and Development and Robert J. Arnould, a maintenance supervisor for Charity Hospital. Wetekamm explained that the State was only responsible for maintaining its right-of-way on Tulane Avenue which began two blocks beyond the hospital. Arnold stated that Charity Hospital maintenance staff conducted no activities affecting the condition of the sidewalk in front of the hospital.

massage-chair-1479054-769x1024A therapeutic massage can offer many medical benefits. But if the massage therapist uses too much force, or applies force in an inappropriate way, severe injury to the patient can result. In such cases, an experienced personal injury attorney may be needed in order for the patient to recover damages for medical bills, lost time from work, as well as pain and suffering.

Dr. Maureen Jones received a Swedish massage at the Paris Park Salon in Baton Rouge on October 11, 2007, from therapist Larry Ashton. Jones claimed that during the massage, Ashton was very rough and applied heavy pressure and force, which caused Jones to experience pain and discomfort. The next day, Jones suffered continued sharp and burning back pain. The pain radiated into her buttocks and right leg, where bruising was also present.

Jones sought medical treatment, during which an MRI revealed that she had sustained a rupture of her L4-L5 disc. Jones first attempted to treat the condition without surgery, but eventually, due to continued debilitating pain, she underwent a left L4-L5 discectomy operation. Jones then filed a lawsuit against Ashton, Paris Park Salon, and the salon’s insurance carrier, ABC Insurance Company (“defendants”). Jones alleged that the message was negligently performed by Ashton, whose negligence breached the reasonable standard of care causing serious, permanent, and disabling injuries.

ortho-1024x683When a healthcare provider is dealing with workers’ compensation cases, the outcome can be a bureaucratic nightmare. When insurance companies also get involved, legal disputes are bound to arise. Courts have to navigate these cases, even when they seemingly end in a mutual settlement agreement by all parties.

In this instance, a case was brought by an orthopedic surgery office (“Plaintiff”) against Bestcomp, Inc. (“Bestcomp”). The Plaintiff filed workers’ compensation medical bills and claimed that Bestcomp had improperly discounted these without providing notice. Other plaintiffs joined in on the lawsuit, and the lawsuit expanded to cover multiple defendant entities and insurance companies, as well. The Plaintiffs entered a Class Settlement Agreement and General Release with most of the defendants. The current appellees (“Appellees”) are two of those defendants, Stratacare, Inc. (“Stratacare”) and Rehab Review, Inc. (“Rehab”), and the appellants are the insurance companies connected with them (“Appellants”).

All parties agree that releasing roughly 45,000 claims in a settlement agreement was a mistake, so a motion to amend the agreement to remedy the error was filed. The Appellants, however, believe that Rehab was released in the next section of the document. They opposed the motion and filed exceptions such as res judicata (meaning an issue that has already been judged upon), lack of subject-matter jurisdiction, and no right of action. The trial court denied these exceptions and allowed the agreement to be amended. The court reasoned that the settling parties did not intend to release Rehab, and this clause was “an undisputed mistake” inconsistent with the rest of the record and thus likely a clerical error.

57-Email-3-26-19-1024x633Imagine shopping for flooring on a Saturday.  The store is crowded and the samples of luxury vinyl tile are starting to all look the same.  The flooring store has graciously placed a bench in the showroom. Much to everyone’s embarrassment, however, the bench collapses under the weight of a patron.  Who is responsible for the injuries both to pride and physical body in this situation? For one Gretna, Louisiana woman, a lack of evidence on the cause of the malfunction caused her lawsuit to collapse as well.  

Schirelle Wiltz was at the Gretna Floor & Decor when the bench she rested upon suddenly collapsed.  The bench had been in the store without incident for two years prior to Ms. Wiltz’s accident. The bench apparently had a hidden manufacturing defect in the metal frame unbeknownst to Floor & Decor.  Ms. Wiltz filed a lawsuit in the Twenty-Fourth Judicial District Court in the Parish of Jefferson alleging that Floor & Decor was negligent in failing to discover the bench’s defect and in failing to warn that the bench had a 300-pound weight limit.  The District Court dismissed the lawsuit, and Ms. Wiltz appealed to the Louisiana Fifth Circuit Court of Appeal.

In a negligence case involving a dangerous defect, the injured party must show the dangerous item was in the custodian’s control, had a defect possessing an unreasonable risk of harm which caused damage, and the custodian knew or should have known about the defect.  See La. C.C. art. 2317.1.  In a case involving a merchant, an injured party must prove the merchant’s premises contained a foreseeable, unreasonable risk of harm, merchant knew or should have known of the danger, and merchant failed to exercise reasonable care.  See Thomas v. Caesars Entm’t Operating Co., 106 So.3d 1279 (La. Ct. App. 2013).  An injured party must also prove the standard elements of a negligence case.  Collins v. Home Depot, U.S.A., Inc., 182 So.3d 324 (La. Ct. App. 2015).

link-30-email-3-26-19-1024x683Slip and fall cases seem to go with grocery stores like peanut butter goes with jelly.  With all that slick inventory, it is surprising there are not more accidents. Who is responsible for injuries from these accidents?  As with many legal issues, it is complicated. For one man out of Slidell, a lack of evidence caused his case to fall flat and release the grocery store from all liability.        

 John Nash slipped on some rice and fell one August day while shopping at Rouse’s Market in Slidell.   Approximately five to ten minutes prior to the fall, a Rouse’s Market’s floor maintenance employee swept the aisle where Mr. Nash fell. A vendor stocking that same aisle verified the floor was swept at that time.  A floor manager’s inspection report confirms that the aisle was inspected minutes before the incident and no substances were discovered on the floor. Yet Mr. Nash filed a lawsuit against the supermarket. The lawsuit, however, was dismissed by the Judicial District Court for the Parish of St. Tammany.   The District Court agreed with Rouse’s Market’s defense that the store did not have actual or constructive notice of the condition causing the fall. Mr. Nash appealed to the Louisiana First Circuit Court of Appeal.

In Louisiana, a merchant owes a duty to persons using their premises to keep the aisles, floors, passages, in a reasonably safe condition.  La. R.S. 9:2800.6(A).  In addition, an injured party must prove that the condition causing the injury posed a foreseeable and unreasonable risk of harm, and the merchant had actual or constructive notice of the danger and failed to exercise care in removing the danger.  See Mills v. Cyntreniks Plaza LLC, 182 So.3d 80 (La. Ct. App. 2015).   In the absence of actual notice of an unreasonably dangerous condition, an injured party must show the dangerous condition existed for some period of time before the fall and that such time was sufficient to place the merchant on notice of its existence. See Clark v. J-H-J., Inc.,  136 So.3d 815 (La. Ct. App. 2013).   There is not an explicit rule on how much time is a sufficient amount of time to have put the merchant on notice; instead, the facts of each case are weighed.  

architecture-2-1446689-1024x681It really does go without saying, but lawsuits tend to progress slowly.  Delays abound and the realities of finite court resources mean that lawsuits can take years to complete.  As an alternative to using this system, some parties will agree to arbitrate disputes. Arbitration takes place outside the court system before a contractually agreed upon third party who hears evidence and renders a final decision (much like a judge). Although it is sometimes successful, arbitration can often result in court litigation anyway. After a dispute arose over the quality of some condo construction in Biloxi, Mississippi, the New Orleans Glass Company attempted to litigate rather than arbitrate.  

The New Orleans Glass Company (“NOG”) was a subcontractor for the Roy Anderson Corporation (“RAC”) on a project building condos in Mississippi.  The parties executed a subcontract which required any subcontractors to participate in arbitration proceedings between RAC and a third-party when the subcontractor had claims against RAC arising out of the same general subject matter as the already-pending proceeding. NOG interpreted the contractual provisions to mean that arbitration was only required in regards to that third-party and not for disputes between NOG and RAC.      

Predictably, a dispute did arise between RAC, the condo developer, and the condo owner’s association over the quality of the construction. Developer and owners initiated arbitration proceedings.  RAC determined that many of the claims for damages involved work performed by subcontractors and subsequently filed a demand requiring NOG to participate in the arbitration proceedings. NOG filed a complaint before the United States District Court for the Southern District of Mississippi requesting the District Court to issue a judgment stating that NOG and RAC did not agree to arbitrate but to litigate.  

elevator-1234161-1024x768When accidents happen, especially at work, it is natural for us to want to be made whole again: put back together as much as possible so our lives can return to normal. Sometimes, recovery for these accidents only covers the harm we can see. A worker injured on the job may appear healed physically but have more internal healing that needs treatment. This issue was examined in a workers’ compensation case appealed to the Louisiana First Circuit Court of Appeal in 2016.

Gary Thompson worked as a program monitor for the Department of Health and Hospitals, Office of Public Health. On February 15, 2011, Thompson left work at the end of the day and took the elevator as his office was on the eighth floor. When the elevator descended past the third floor, it suddenly fell and hit the ground level with a strong impact. Thompson’s post-incident MRIs showed serious injuries to his knees, hip, and upper and lower lumbar spine. Thompson had to undergo bilateral knee arthroscopy and other procedures, but no procedures performed relieved him of his back pain and other symptoms. Thompson’s orthopedic surgeon, Dr. Jorge Isaza, recommended a discogram to determine whether Thompson was a surgical candidate and Dr. Allen Johnston, appointed by the Office of Workers’ Compensation (OWC), reported that he agreed with the recommendation.

The OWC medical director approved the discogram and it revealed pain generators in Thompson’s back at Ll-2, L2-3, and L5-S1 levels. Dr. Isaza performed surgery on the L5-S1 level in April of 2013, but this did nothing to relieve Thompson of pain. Dr. Isaza recommended post-surgery diagnostic tests. At this point, OWC refused approval to conduct those tests. Dr. Isaza recommended another lumbar fusion on the L2-3 and Ll-2 levels, to treat the upper lumbar injury, which a May 14, 2012, MRI report confirmed the need for. The OWC also denied coverage of this procedure.

ship-at-las-palmas-bay-1449622-1024x683Long considered “wards of admiralty,” courts carefully scrutinize the treatment of seamen, particularly in cases where substantial legal rights are involved. One such case involves the execution of a release with a seaman, particularly when the seaman is unrepresented and in claims of personal injury. Generally, in a personal injury case, a release is a legal agreement that serves to settle the claims between the parties and terminates the injured party’s right to seek damages in court.

So, what is required to uphold such a release? The Louisiana First Circuit Court of Appeal gave us an example in Buras v. Sea Supply. The plaintiff, Mr. Buras, was a seaman injured while working aboard the defendant’s vessel. A month later, Mr. Buras’ doctor cleared him to return to work where, without counsel present, he signed a release settling all claims against the defendants. In addition to the release itself, the evidence included a transcript of the conversation had between Mr. Buras and the defendant at the time of executing the release. This transcript showed that the defendant clearly advised Mr. Buras multiple times of both the consequences of signing the release and his right to have an attorney present. Nevertheless, Mr. Buras signed the release stating he understood he was giving up his legal rights in connection with this claim and declined to speak to an attorney. Nearly a year later, Mr. Buras filed a claim seeking to have the release declared unenforceable; however, the trial court found that because all of Mr. Buras’ claims against the defendants were covered by the release, there were no genuine issues of material fact and, therefore, granted the defendant’s motion for summary judgment, dismissing the case without trial.

The law is well-settled that there is a heavy burden upon one who sets up a seaman’s release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights and appreciation for the consequences. See, e.g., Garrett v. Moore-McCormack Co., 317 U.S. 239, 240 (1942); Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599 (5th Cir. 1986);

the-last-drop-1306724-1024x768Louisiana, like most states, requires drivers to maintain liability insurance (or less commonly, a liability bond or certificate of self-insurance) to legally operate a motor vehicle. In 1992, an amendment to this law explicitly allowing insurance companies to offer “named driver” exclusions in their policies, which allowed an insured the option of paying a lower premium in exchange for insurance that provides no coverage while the specifically named driver operates a covered vehicle. The law was upheld by Louisiana courts, though it did create some disagreements in its interpretation, both among the appellate courts and between the Louisiana Supreme Court and the legislature. One of these disagreements concerned whether the owner of a vehicle could purchase liability insurance and then, through the named driver exclusion, exclude himself from coverage under the policy. Although the Louisiana Supreme Court determined that to allow such a maneuver would be violative of public policy, their interpretation was overruled by subsequent legislation explicitly allowing it.

In Bourg v. Southall, a motor vehicle accident occurred in Marrero, Louisiana where there was no question of fault: Plaintiffs were stopped at the intersection of LA-45 and Lapalco when they were hit from behind by an intoxicated driver. Although Plaintiffs were able to recover damages at trial, that ruling was overturned by the Louisiana Fifth Circuit Court of Appeal on the basis that the driver of the vehicle was listed in a named driver exclusion of the policy, despite the fact that he was both the owner of the vehicle and the named insured (he purchased the policy).

La. R.S. 32:900(L) clearly allows the owner of a vehicle to purchase liability insurance on a vehicle and to exclude himself from coverage under the policy. Sensebe v. Canal Indemnity Co., 58 So.3d 441, 451 (La. 2011). Furthermore, this provision does not set forth any specific requirements with respect to the form to exclude a named person from coverage; the only requirement is a written agreement. See Gilbert v. Reynoso, 917 So.2d 503, 505–06 (La. Ct. App. 2005).