Louisiana Slip and Fall (Part I) – Procedure and Attorney Sanctions

The Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages. A second point of the case, and the first to be discussed, is the sanctioning of the city’s attorney for ‘wasting’ time in attempting to get an unnecessary Independent Medical Examination (IME) from a physician who was highly unattainable, and using this as an improper means to delay the proceedings. Also, the trial judge in this case was placed on the witness list, and the attempt to have the judge recuse himself was also determined to be used as an inappropriate manner for the city’s attorney to delay the proceedings.

A trial court’s judgment must be found to be clearly wrong or that there was an error in the law. Great deference if provided the trial court and the finders of fact because they are the parties, be it judge or jury, that has the greatest and most humanlike exposure to the witnesses. An appellate court, however, merely has documents pertaining to the facts and witnesses, but cannot personally observe the witness’ demeanor, truthfulness, etc. An appellate court determines if the judgment of the trier of fact was a reasonable one, not whether it was the correct one.

When asking the court for an IME, a party must show: 1) that the physical or mental condition of the party sought to be examined is in controversy, and 2) that good cause exists for requiring the party to submit to the examination. In determining if an IME is proper, a court has wide discretion and should determine whether to allow for one on a case by case basis. Courts will consider whether the physical/medical information can be attained by other means, and that a treating physician should be given greater weight than a physician who only examines a patient a couple times or even just once. Continuances for IMEs are discretionary and may be granted if there is good ground for one. La. Code Civ. Proc. Ann. art. 1601.

The duty of a judge is to conduct fair and impartial proceeding, and is presumed to be impartial. A judge shall be recused, for instance, if he or she is a witness in the case that he or she is supposed to preside over. La. Code Civ. Proc. Ann. art. 151(A)(1). A witness is determined to be a material witness to the case according to La. Code Civ. Proc. Ann. art. 1602, if the witness is essential to a party’s presentation of its case.

A court cannot impose sanctions on a lawyer simply because a particular argument or ground for relief contained in a non-frivolous pleading was found to be unjustified. La. Code Civ. Proc. Ann. art. 863. An appellate court reviewing a trial court’s sanctioning of a lawyer will look at whether the district court abused its discretion in assessing sanctions. But in determining whether a litigant and his counsel made the required, reasonable, factual inquiry as is required by art. 863, a court will look at: 1) time available to the signor or investigator; 2) extent of the attorney’s reliance on the client for factual support for pleadings; 3) feasibility of prefiling investigation; 4) whether the signing attorney accepted the case from another attorney; 5) complexity of factual and legal issues; and 6) the extent to which development of factual circumstances underlying the claim required discovery.

An appellate court will determine whether a trial court abused its discretion in administering a sanction on an attorney, but the trial court has considerable discretion in its determination. Four factors that assist in determining a sanction award are: 1) the conduct being punished or sought to be deterred by this sanction; 2) the expenses or costs caused by the violation of the rule; 3) whether the costs or expenses are reasonable as opposed to self-imposed, mitigatable, or the result of delay in seeking court intervention; and 4) whether the sanction is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed.

Each individual attorney must sign a document in his or her own name. La. Code Civ. Proc. Ann. art. 863. Sanctions may be imposed on the person who made the certification, but only on the attorney, and not an entire law firm. As an officer of the court, an attorney has a duty to conduct a reasonable inquiry into the issue of his pleadings before filing them.

For a further discussion of Daigle v. City of Shreveport, and the city’s liability 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 negligence claim of your own against a town, city, or the state, then please do not hesitate to contact the Berniard Law Firm.