Civil Matter

April 4, 2019

Tangipahoa Winn-Dixie Employee’s Whistleblower Claims Dismissed

broom-1-1206422-1024x688 Employers have a duty to provide their workers with reasonably safe working conditions. Whistleblower statutes protect employees from retaliation when they report violations of this duty. However, not every imperfection constitutes an unreasonable danger.

Brenda Causey reported that she suffered pain and soreness at her job at Winn-Dixie in Tangipahoa after operating a floor-sweeper that rode roughly and bounced her around. She completed two inspection sheets detailing the unsafe conditions. She also contacted the company’s corporate headquarters to tell them about her injury and the floor-sweeper’s unsafe condition. Causey claimed Winn-Dixie’s management blamed the problem on a tire deformity. At first, management said it would not repair the tire, but after she complained to corporate headquarters, she was informed the wheel would be replaced. Causey was terminated less than a month after this event.

Causey filed suit in the 21st Judicial District Court in Tangipahoa, Louisiana, claiming she was terminated as a result of reporting Winn-Dixie’s violation of La. R.S.23:13, which requires employers to furnish employment that is reasonably safe for its employees and do everything reasonably necessary to protect the life, health, safety and welfare of its employees. Causey sought damages and attorney fees under the Louisiana Whistleblower Statute. Winn-Dixie countered that Causey did not engage in protected activity and could not establish a case. Further, they claimed Causey was terminated for failing to place a completed inspection sheet for the defective sweeper in the proper place in compliance with company procedures.

April 3, 2019

Southeastern Louisiana Employee Successfully Sues After Boss Rejects Rescission of Resignation

by Berniard Law Firm

exit-1444097-1920x1280-1024x683 Usually when you hear the phrase “adverse employment action,” it brings to mind actions such as being demoted or fired. However, under certain circumstances, it can extend to more unique actions. This includes refusing to accept an employee’s rescission of resignation.

Tyrikia Porter worked at the Houma Terrebonne Housing Authority (“HTHA”) in Louisiana since 2001. In 2006, HTHA hired a new executive director, who made regular comments about her appearance, as well as other sexual comments. In June 2012, Porter resigned, intending for her resignation to take effect in August 2012. The Executive Director approved her request to extend her resignation by a month. During the period between when Porter offered her resignation and when she stopped working, she testified against the Executive Director, alleging sexual harassment. Other superiors urged Porter to rescind her resignation. When Porter notified HTHA that she was rescinding her resignation, the Executive Director rejected the rescission. Although Porter intended to leave when she submitted her resignation, she knew other employees had been allowed to rescind their resignations. Porter believed that her rescission was not accepted because she had testified against the Executive Director at the hearing.

Porter filed claims in the United States District Court for the Eastern District of Louisiana under Title VII and state law for retaliatory discharge and sexual harassment/hostile work environment. In order to establish a prima facie retaliation case, Porter had to show the three relevant factors outlined in the following case: See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).Louisiana courts have generally not considered rescission as an adverse employment action in retaliation cases. However, in Burlington Northern, the U.S. Supreme Court clarified that “adverse employment actions” could extend beyond workplace or employment related retaliatory acts. In determining whether an action is an adverse employment action, courts look at the circumstances and whether the act was harmful to the point that it might “dissuade a reasonable worker from making or supporting a charge of discrimination.” See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

April 2, 2019

Baton Rouge Woman Files Lawsuit On Behalf Of Infant After Wreck

by Berniard Law Firm

a-child-1431845-1024x768 If you are at school or work and notice several people who are soaking wet and wearing rain jackets, you would not have to be a detective or even a good lawyer to confidently make the judgment that it’s raining outside. Similarly, the legal concept of summary judgment used by courts is when the undisputed facts surrounding a claim lead to a court concluding the lawsuit as a matter of law, not facts. When that concept is applied to only certain elements or portions of a case or claim, it is called partial summary judgment. Partial summary judgment and its effects were of primary importance for a Baton Rouge, Louisiana, woman’s case.

Jennifer R. Hayes was carefully driving westbound along Louisiana Highway 724 on a rainy day with her friend Mayola Casais (owner of the car) and Casais’ foster child Geneva Marie Fils in 2006. Out of nowhere an eastbound truck veered into her lane and hit head-on. As a result of the collision, Geneva sustained a fractured skull, an intracerebral hematoma, and a traumatic brain injury.

Geneva’s biological parents, John and Demitria Fils, filed a lawsuit against multiple parties when they found out about the accident. One of those parties included the Louisiana Department of Children and Family Services, which the Fils claimed should be liable because Geneva was under the custody and control of a foster parent which the Department assigned. The Fils sought monetary damages for Geneva’s injuries as well as loss of consortium, which is compensation for their familial loss for what Geneva’s injuries did to their health or family relationships. In 2011, Demitria Fils passed away and Geneva’s biological maternal aunt, Calvemia Reed replaced her in the lawsuit.

March 30, 2019

Ouachita Parish Right of Passage Lawsuit Not Barred by Res Judicata

by Berniard Law Firm

16-email-03-03-2019 Double jeopardy is not a television marathon featuring Alex Trebek, but protection against it is fundamental to the United States legal system. In the criminal justice system, double jeopardy means being put on trial for the same charge twice; the Fifth Amendment to the United States Constitution bans it. Res judicata, Latin for “a matter already judged,” is the civil version of double jeopardy. It means that someone cannot be sued for the same reason under the same circumstances twice. In this case, the Louisiana Second Circuit of Appeal found that res judicata did not bar a landowner from suing his neighbors twice for the same cause of action, obtaining a right of passage from a public road to his property.

In 2006, Entrada Company filed suit against three neighboring landowners to obtain a right of passage, alleging that it had no access to a public road. This form of relief allows a landowner to pass over the land of another in order to access his own land. In March 2014, Entrada Company filed another lawsuit against the same defendants for the same cause of action. In April 2014, two of the defendants filed a motion to dismiss on the ground of abandonment, which the trial court granted. Because Entrada Company had not pursued the first lawsuit, the court dismissed it with prejudice, meaning that it could not be refiled.20

The issue in this appeal is whether this dismissal with prejudice of the first lawsuit precludes the second lawsuit on res judicata grounds. Res judicata precludes a second action when: the judgment is valid, the judgment is final, the parties are the same, the cause of action existed at the time of the first judgment, and the cause of action in the second action arose out of the same circumstances as the cause of action in the first action. See La. R.S. 13:4231 (2017).

March 28, 2019

Tangipahoa Parish Bar Fight Case Remanded Because of Inadmissible Evidence

by Berniard Law Firm

6-email-03-03-19-Picture One bad decision can lead to a huge legal headache. The combination of a chaotic atmosphere and alcohol makes bars the perfect storm for mistakes that can later lead to huge liability. In a recent case, a man who punched another patron at a Tangipahoa Parish bar appealed a default judgment that awarded the victim over $100,000 dollars for personal injury damages and medical expenses.

After Ryan Martinez walked onto the bar’s dance floor to break up a fight between his friend and Trevor Wilson, Wilson allegedly turned to Martinez and punched him in the face. Martinez alleged that this punch fractured his mandible; he had to have his mouth wired shut for eight weeks and he could not eat solid foods or work. This small scuffle on the dance floor led to life-changing consequences.

Martinez filed a lawsuit against Wilson, the bar, and their respective insurance companies. Summary judgment was filed by the bar and it’s insurance companies wherein they argued that there were no facts present that could show that they could be held liable in this lawsuit. Martinez was required to present proof to the contrary to defeat the summary judgment. The trial court dismissed the lawsuit against the bar because the court found that the bar was not liable under tort as a matter of law. Wilson never appeared to answer the lawsuit, so the trial court awarded a default judgment of over $100,000 dollars to Martinez after he filed a Motion for Default and went to a hearing on that Motion. See La. C.C. art. 1702 (2017). Even when there was no opponent because Wilson never appeared in court, Martinez still had to use admissible evidence to prove his injury.

March 27, 2019

The Wholly Obvious Hole: No Case for Injured Man in Metairie

by Berniard Law Firm

hole-1576687-1-658x1024 Determining liability when someone is injured on someone else’s property is a complex endeavor. One of the major factors is determining whether the injury resulted from an unreasonably dangerous condition.

While a new In & Out Express Car Wash was being built in Metairie, LA, local business owner Mr. Frederick Helwig fell into a hole, sustaining injuries. Mr. Helwig was well aware of the construction going on, as he owned the business next door and had watched the construction progress for 6 months. When Mr. Helwig was injured, he was crossing the construction site at 10:30PM and did not use a flashlight or any sort of illumination to light his way.

The injured Mr. Frederick Helwig had the burden of proof to establish liability, that In & Out Express Car Wash (1) had a duty to conform conduct to a specific standard, (2) that the defendant failed to conform to the standard, (3) that the defendant’s conduct in failing to live up to the standard caused plaintiff’s injuries, (4) that the defendant’s conduct was a legal cause of plaintiff’s injuries, and (5) that the plaintiff has proof of the actual damages done to them. See Detraz v. Lee, 950 So. 2d 557, 565 (La. 2007). Specific to the case of a dangerous condition on land, the injured Mr. Helwig had to prove that the hole was in In & Out Express Car Wash’s control, it presented an unreasonable risk of harm, that the defendant knew or should have known of the unreasonable risk, and that the damage was caused by In & Out Express Car Wash. See Babino v. Jefferson Transit, 110 So. 3d 1123, 1126 (La. Ct. App. 2013). At the crux of this case, the injured Mr. Helwig had to prove that the danger, the hole in the ground, was not open and obvious. Even if the hole was unreasonably dangerous, in that it would injury anyone who fell in it, there will be no liability if the dangerous or defective condition is obvious and apparent. See Bufkin v. Felipe’s La., LLC, 171 So. 3d 851, 856 (La. 2014).

March 23, 2019

Court Affirms Rezoning of Terrytown Property

by Berniard Law Firm

69-Email-03-03-19-1024x512 Zoning issues can seemingly arise out of nowhere and affect the way you choose to use your property. It is important to stay up to date with local zoning ordinances and have a good lawyer to guide you with upcoming projects or changes that may be affected. It is equally important to also be aware of what happens when zoning changes do affect, and even cancel, these projects. The Fifth Circuit Court of Appeal for the State of Louisiana addressed this issue when a Terrytown, Louisiana property was rezoned by the Jefferson Parish Council on December 12, 2007.

The Berrys purchased two adjoining parcels of property in 1998 and 2000, consisting of over four acres of land located in the Elmwood Subdivision and on Behrman Highway along the west bank of Jefferson Parish. This property was zoned as a Multiple Use Corridor District (“MUCD”), allowing for diverse commercial use of the land. On October 13, 2006, the Berrys and Volunteers of America, Inc. (the “VOA”) entered a purchase agreement to develop the property into a high-density, multi-level housing facility for the elderly. While the VOA made preparations for the project, the Jefferson Parish Council executed a zoning and land use area study that covered 23.67 acres, including the property owned by the Berrys.

The VOA project came to a halt due to a moratorium, an order of postponement, on the issuance of building permits for the area within the study, as required by the Parish Code. When the study came to an end, the VOA project ended as well; the study concluded with the Parish Council changing the zoning of the front portion of the Berry property from MUCD to C-1 (Neighborhood Commercial District), and the rest of the property zoned as R-1A (Single-Family Residential). Though the zoning changes were consistent with the Parish’s 2003 Comprehensive Land Use Plan, they were inconsistent with the VOA project.

March 22, 2019

Summary Judgement Reversed for Insurance Company in Wrongful Death Case

by Berniard Law Firm

61-Email-03-03-19-1024x680 The loss of loved ones is never easy, especially when they are taken away in sudden, unexpected ways. Though there is no dollar value that can replace human beings, monetary damages are a form of recovery in cases of wrongful death. Sometimes the steps to that recovery can be difficult, especially when insurance is involved. This issue was explored in a wrongful death action brought to the Twenty-Ninth Judicial District Court in St. Charles Parish.

On May 26, 2013, a head-on collision with another vehicle killed Esther Centeno and her unborn fetus. On behalf of Esther’s minor daughter, Laylonie Polanco, Carlos Polanco—Laylonie’s father—filed a wrongful action against the driver of the other vehicle in the collision: Jennifer Englade. The action was also brought against Ms. Englade’s insurer, National Automotive Insurance Company (“National”).

National filed a motion for summary judgment, a motion for judgment as a matter of law when there is no genuine issue of material fact. La. C.C.P. art. 966 (2017). In the motion, National argued that Ms. Englade was not covered by National at the time of the accident because her automobile insurance policy was canceled on March 30, 2013, due to failure to pay for a premium. In support of the motion, National provided a declarations page of Ms. Englade’s policy, the notice of cancellation, and affidavits of “Preparation of Cancellation Notice” and “Mailing” dated March 18, 2013. The trial court granted the motion for summary judgment and Mr. Polanco appealed.

March 21, 2019

Prairieville Man Injured in Lunch Break in Company Vehicle Loses Summary Judgment Appeal

by Berniard Law Firm

40-post-photo-1024x683 Do you ever wonder what happens if you get into an accident in a company vehicle when on your lunch break? Whether it is using the company car to pick up food or a quick stop at the mall to grab a birthday gift, most of us have had the thought cross our minds. A recent State of Louisiana First Circuit Court of Appeal (“the Court”) case dealt with this very issue.

Melvin Sharp and his work supervisor drove to a bank to cash their paychecks on their lunch break in Prairieville, Louisiana. Sharp and his supervisor were both employees of Ellis Electric Company (“Ellis Electric”) and used a company-owned truck to run the errand. In the bank parking lot, another vehicle hit Sharp and his supervisor in the company-owned truck. Sharp was not driving the truck at the time, his manager was.

Sharp brought a lawsuit against his co-passenger and work supervisor, as well as Ellis Electric and their liability insurance provider, United Fire, seeking compensation for injuries from the car accident. Ellis Electric and United Fire’s attorneys motioned for summary judgment, stating Sharp was in the course and scope of his employment, and accordingly, he could only receive workers’ compensation. Ellis Electric further stated it was company policy to allow workers to use company vehicles on their breaks for personal errands. Sharp countered, stating he was not in the course and scope of his employment because he was not driving the company vehicle, his manager was, and that he was entitled to seek additional damages.

April 13, 2018

Company Unsuccessful in Abuse of Process Claim After Lengthy Legal Battle

by Berniard Law Firm

vacancy-1232656-1024x768 Ever feel like you have been wrongfully brought to court? If so, then what legal remedies do you have at your disposal? In Louisiana, the law provides a person who has wrongly been brought to court with a tort cause of action called abuse of process. A recent Fifth Circuit Louisiana Court of Appeal decision highlights some of the procedural and legal requirements for this lesser known tort.

The alleged “frivolous” lawsuit centers around an eviction lawsuit. Allicen and Kenneth Caluda filed an eviction lawsuit against Fifth Business, LLC (“Fifth Business”). In the lawsuit, the Caludas also added No Drama, LLC (“No Drama”) as a defendant. Nearly seven years after the eviction lawsuit, No Drama filed an abuse of process lawsuit. To prove an abuse of process claim, No Drama needed to prove 1) the Caludas sued No Drama for an improper purpose and 2) the Caludas engaged in improper conduct during the prosecution of the action. See Goldstein v. Serio, 496 So. 2d 412, 415 (La. Ct. App. 1986). No Drama alleged the Caludas improperly filed suit in order to hold the company financially liable for the couple’s lease dispute with Fifth Avenue. It also claimed that the cost of defending the lawsuit, after informing the couple of its independent status, forced it to halt operations. The Caludas’ countered, arguing that No Drama was prescribed from bringing the abuse of process claim because it failed to file the claim within the appropriate time period required by Louisiana law which, for an abuse of process claim, is one year. The trial court agreed with the Caludas, dismissing No Drama’s lawsuit. No Drama appealed the trial court’s ruling.

On appeal, No Drama argued that the prescription period never commenced because the underlying eviction case needed to be decided prior to it bringing the abuse of process lawsuit. No Drama also argued the prescription period was suspended because Caludas was committing a “continuous tort.” A continuous tort is an ongoing unlawful course of conduct that results in uninterrupted injury to the plaintiff. Crump v. Sabine River Auth., 737 So.2d 720, 728 (La. 1999). No Drama alleged the Caludas, by maintaining a wrongful lawsuit and causing ongoing financial injury, committed a continuous tort and therefore, the prescription period was suspended or tolled as a result.