Civil Matter

November 19, 2016

Court of Appeal Describes How “Forced Heirs” Force Their Way into Inheritance

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In Louisiana, you cannot “disinherit” your children. What does this mean exactly? It means that upon death, Louisiana law will allow a decedent’s children to share in his or her estate, even if the decedent left those children out as beneficiaries. The left-out children are called “forced heirs,” and will take a portion of the decedent’s estate (called the “legitime” or “forced portion”) unless the decedent has a just cause for leaving them out. La. C.C. art. 1494. A recent case of the Louisiana First Circuit Court of Appeal describes the rights of forced heirs to take in a decedent’s estate.

This case arose out of the death of Geronimo Ji Jaga, and the division of his annuity account at Western National Insurance Company. Mr. Ji Jaga had five children from various marriages: Shona Pratt, Hiroji Pratt, Nikki Michaux, Kayode Ji Jaga, and Tkumsah Geronimo Jaga. He named his eldest two children, Shona and Hiroji (“the Pratts”), as the beneficiaries to the annuity. After Mr. Ji Jaga’s death, one of his surviving spouses – Jojuyounghi Cleaver – filed a lawsuit in the Parish of St. Mary against Wester National alleging that her son, Kayode, should be considered a forced heir and entitled to share in the annuity.

In response, Western National filed asserted that the Pratts, the named beneficiaries of the annuity, should be joined in the lawsuit. After Mrs. Cleaver amended her petition adding the Pratts as defendants, the Pratts filed, among other exceptions, a peremptory exception of no cause of action. Tkumsah’s mother, Laila Minja, later filed a petition to intervene. She claimed that Tkumsuh was also a forced heir. The Pratts filed the same exceptions against Mrs. Minja as they did against Mrs. Cleaver. The Trial Court sustained the Pratt’s exception of no cause of action and dismissed Mrs. Cleavers’ and Mrs. Minja’s claims. The Trial Court considered the Pratt’s other exceptions as moot. Mrs. Cleaver and Mrs. Minja appealed the Trial Court’s judgment.

November 16, 2016

Slidell Hospital Not at Fault in Lawsuit for Independent Contractor Worker’s Alleged Negligence

by Berniard Law Firm

hospital-s-corridor-1631146-1024x765 If your unlucky enough to slip and fall at a business the first person you would think about suing is the business itself. However, businesses today contract out many aspects of cleaning and other maintenance and in doing so also alleviate their responsibility for negligence on their property. The following case out of St. Tammany Parish discusses the concept of who might be at fault for a slip and fall when the cleaning of floors is contracted out to another party.

In 2005, Joy Smith was visiting a friend who was a patient at Northshore Regional Medical Center (Hospital) in Sidell, Louisiana. As Ms. Smith was walking down the hall, she slipped and fell in some water near where the floors had just been buffed. Ms. Smith filed a lawsuit against the Hospital alleging they were negligent in failing to properly warn her of the hazard that caused her fall. The Hospital answered the lawsuit and filed a third party demand, adding as third party defendants Hospital Housekeeping Systems (HHS), and the employee of HHS who had just buffed the floor. The Hospital had a contractual relationship with HHS to provide the Hospital with housekeeping services for the hospital.

The Hospital filed a motion for summary judgment in the lower court seeking to have Ms. Smith’s claim against the hospital dismissed. The Hospital alleged that it was merely the property owner, and it should not be held liable for conditions created by HHS as they contracted with them to clean the floors. See LSA-C.C.P. art. 969. Within the contractual obligations of the Hospital and HHS, HHS was responsible for maintaining the area where Ms. Smith had fell. The lower court agreed, and granted the summary judgment.

November 11, 2016

The Plight of the Luddite: Increasing Concerns for Plaintiffs of Age Discrimination Claims

by Berniard Law Firm

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A Luddite is a person who is opposed to technological innovation. A Luddite will refuse to learn about new technology and will not incorporate it into their skills, either at work or at home. Having this mindset has obvious drawbacks for workers in today’s world, but what happens to the individuals who do not necessarily avoid technology, but are slow to catch up?

In 2015, a 52-year old employee of Jefferson Parish fell into this unfortunate cohort. This employee had been working for Jefferson Parish for over twenty years of service. When it came time for Jefferson Parish to choose who to promote to the position of Executive Assistant, there were two options: Maria Cooper, a young 28-year old employee with technological know-how, or the 52-year old, an experienced and loyal employee.

To Jefferson Parish, the choice was obvious. Since the essential job requirements of the position of Executive Assistant included working knowledge in the maintenance and updating of all computers, servers, and wiring of the computer network, as well as experience in setting up Excel spreadsheets, Ms. Cooper seemed like the best fit. But what about the 52-year old? She was left in the dust. After being passed up for the position, the 52-year old filed a lawsuit against Jefferson Parish, alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.

November 10, 2016

Louisiana Appeals Court Defines “Employee” in Sexual Harassment Lawsuit From Iberia Parish

by Berniard Law Firm

Employees Only
In the law, it is common for a case to turn on the definition of one word. A word that ordinarily may conjure a single image can explode with possibilities, nuances, and sometimes disastrous consequences during a lawsuit. For Mr. D that word was “employee.” In a recent case, the Louisiana Third Circuit Court of Appeal helped define the term “employee” as regards workers’ compensation law and employment discrimination law.

In this case, Mr. D was hired by Lofton Industries, Inc., a staffing services company, that assigned Mr. D to work with National Oilwell Varco, L.P. (“NOV”). While at NOV, Mr. D alleged that he suffered both verbal and sexual harassment from coworkers. The harassment lasted until Mr. D was fired by NOV. Mr. D filed a lawsuit for sexual harassment against his harassers and NOV, as well as a separate negligence claim against NOV for the negligent hiring and supervision of its employees. This is where the definition of “employee” becomes important and interesting.

In order to maintain his claims against NOV, Mr. D had to meet the definition of employee under the Louisiana Employment Discrimination Law (“LEDL”) but avoid being considered an employee under the Louisiana Workers’ Compensation Act (“LWCA”). Confusingly, the District Court dismissed both Mr. D’s claims, finding that he was both an employee (for LWCA purposes) and not an employee (for LEDL purposes) at the same time.

November 6, 2016

Court of Appeal Discusses Louisiana’s “Lemon Law” Regarding Used Automobile Sales

by Berniard Law Firm

Buying an automobile can be an exciting experience regardless of whether one is trading in an old gas-guzzler for a newer, more efficient model or buying brand new. However, the process of buying an automobile can be a hassle if one happens to purchase a “lemon.” In Louisiana, a “lemon” is defined as a new automobile that has a defect that is significant enough to severely impair the automobile’s use and/or market value. With this being said, it is surprising that even with the abundance of information readily available via Internet, many individuals hastily purchase automobiles, rather than taking the time to gather information and make an informed decision. It is important to remember, as the buyer, that you should be in control throughout the entire process by (1) knowing the style of automobile you desire; (2) calculating the price you can afford; (3) researching the safety, quality, expert opinions, and owner opinions of the automobile you are planning to purchase; and (4) investigating the types of warranties readily available. In the event that one finds his/herself in the aforementioned situation, it is pertinent to retain an attorney, who specializes in Redhibition Law (i.e., Lemon Law) who will file a redhibition claim (i.e., lemon law claim) on your behalf.

The following redhibition action out of Houma, Louisiana discusses the conditions that must be proven by the buyer in order to obtain a favorable judgment. On September 3, 2013, Ms. Melissa Cadiere purchased a 2000 Lincoln LS with 199,684 miles from Wholesale Autoplex, L.L.C. Ms. Cadiere drove the Lincoln for thirty-seven days before her Lincoln failed to start, at which time she contacted Wholesale Autoplex. Wholesale Autoplex advised Ms. Cadiere that her Lincoln would need a new engine. After Wholesale Autoplex failed to repair or replace the engine, Ms. Cadiere filed a petition for redhibition.

Redhibition, in the context of automobiles, is the avoidance of a sale of some vice or defect in the automobile, which renders the automobile either absolutely useless, or severely compromises the function of the automobile in a matter that if known by the buyer at the time of purchase, the buyer would have chosen not to purchase the automobile. See La. C.C. art. 2520. In a redhibition claim, the buyer (i.e., plaintiff) must prove (1) that the seller (i.e., defendant) sold the good in a manner that renders the good absolutely useless for its intended purpose or its use is compromised in a manner that if known at the time of purchase, a reasonable person would have chosen not to purchase the good; (2) the good contained a hidden defect at the time of purchase; and (3) the seller was provided the opportunity to repair the defect. Crow v. Laurie, 729 So. 2d 703, 705-06 (La. Ct. App. 1999).

November 5, 2016

Father of Color Guard Member Unable to Prove Negligence after MLK Parade Injury

by Berniard Law Firm

When bringing a negligence lawsuit to recover damages for injuries sustained as a result of another person’s failure to act with due care, it is important to ensure that that sufficient evidence has been gathered in advance of the trial. A good lawyer knows that in order to properly safeguard against the tactic employed by the opposing party, one must be prepared to back up one’s claim. A case from the Louisiana First Circuit Court of Appeal highlights exactly this point.

In this case, Robert Lee Iles brought a lawsuit on behalf of his minor daughter, Jannah, who was a member of the color guard at Northshore High School (“NHS”) until she sustained an injury. As a member of the NHS color guard, Jannah attended a two-week band camp during the summer. At band camp, she practiced for two hours, two to three times a week after school, and worked alongside her color guard teammates in a daily one-hour class. She and her teammates received between nine to ten hours of instruction each week. Additionally, she received special training sessions to prepare for the Martin Luther King, Jr. (“MLK”) parade. According to Mr. Iles’ petition, Jannah sustained an injury while marching as a member of the NHS color guard while performing alongside the band at a MLK parade in Slidell, Louisiana.

Iles petition claimed that his daughter’s injury entitled the family to damages. The petition named a number of defendants, including: St. Tammany Parish School Board, NHS Band Boosters, Inc. and its insurer, the band director, the color guard director, the school principal, and the parents of her fellow NHS color guard member, Gabrielle Haley. Iles claimed the School Board was liable for the actions of its employees, thus justifying the inclusion of the band director, and that the Boosters paid the color guard director, so his inclusion was justified as well. Iles’ lawsuit further posited that the School Board and Boosters had failed to properly supervise or train the color guard students, giving rise to this action. Iles also sought additional damages from the defendants for failing to properly administer medical attention.

November 4, 2016

Court of Appeal Contemplates City of Baton Rouge’s Vicarious Liability for Police Misconduct

by Berniard Law Firm

on-patrol-1565455-1024x683 In Louisiana, employers are considered to be vicariously liable for the wrongdoings of their employees. La. C.C. art. 2320. This means that an employer is held liable for damages that their employee may cause while performing designated job duties. In a recent case, the Louisiana First Circuit Court of Appeal discussed whether vicarious liability could apply to hold the City of Baton Rouge responsible for injuries caused by the wrongful conduct of one of its police officers.

On March 4, 2007 Officers Nicholas Batiste and Nathan Davis were dispatched to the home of Brian Townsend in Baton Rouge, Louisiana due to a noise complaint. Mr. Townsend, who was hosting a house party at his Highland Road residence, was instructed by Officer Davis and Officer Batiste to shut the party down. Though the parties disputed what transpired after the officers asked that the party be shut down, it was undisputed that Officer Davis tackled Mr. Townsend from behind. Officer Davis landed on Mr. Townsend with such force that Mr. Townsend involuntarily defecated on himself.

Once Mr. Townsend was brought to the police station, he was made to sit on the floor due to his condition. As he was sitting on the floor, he continually asked to use the restroom. His requests were denied. He was then pepper sprayed multiple times and kicked in the groin by Officer Davis. Additionally, Mr. Townsend was dragged across concrete and gravel as he was being moved for processing. Mr. Townsend was brought to the hospital for his cuts from being dragged. There, it was discovered that Mr. Townsend’s bladder was ruptured. Mr. Townsend underwent surgery to repair his bladder. Following Mr. Townsend’s release from the hospital, he returned due to a urinary tract infection, deep vein thrombosis, a non-functioning bowel, and pneumonia.

November 1, 2016

Louisiana Legal Malpractice Case Looks at Exception of Prescription

by Berniard Law Firm

law-offices-1477311-1-1024x743 When something goes wrong in a legal case, how long does a party have to make their claim? Louisiana has statutes concerning the time frame in which a party has to bring a claim against an attorney for malpractice and the courts will uphold the time limitation depending on the facts of the case.

In 2007, Ms. Coté, was living with her daughter in Shreveport. The circumstances leading to the original litigation were started when, Leon Bell, who was employed by City’s water department, was sent to a neighborhood to tell the certain residents about the water being shut off. He ended his shift and then hours later entered Ms. Coté’s residence and held her by force. Luckily Ms. Cote’s daughter escaped and alerted the police. Mr. Bell was arrested and charged with aggravated battery and second degree kidnapping; he pled guilty to certain charges and was given a sentence of many years in jail.

Ms. Cotè’s filed a lawsuit against the City of Shreveport (the City) the following year. In that lawsuit she alleged great mental suffering due to the unlawful intrusion. Ms. Cotè alleged that city’s employee had actually been let into her home on a few instances prior because he requested the same as part of his job. On one visit she had would not let him in and notified the City at that time of the incident. The City could not locate any documents detailing Ms. Cote’s grievances. Ms. Cotè argued that the City should be held vicariously liable because the harm she incurred was a result of their employee performing his job duties. The City in return argued that the the criminal activities did not occur as part of their employees’ job duties, therefore they should not be held in concert with him for his negligent actions. Ms. Cotè’s attorneys advised her that the City’s motion on the vicarious liability issue was on solid ground, and she would have a tough time proving her case in court. Ms. Cotè was very hands on with her case, and when her attorneys provided her with an affidavit they intended to present in response to the City’s she indicated discouragement with their handling of her case.

October 30, 2016

Long-time New Orleans Parade-goer Sues After Being Hit in Head with Beads

by Berniard Law Firm

Anyone who has been to a Mardi Gras parade in New Orleans knows that the festivities are often marked by high-speed projectiles aimed at the crowds. Indeed, the chance to catch coveted “throws” is the very thing that draws many parade goers. The risk of being hit by beads or other throws is so well-known and accepted that there is even a state “Mardi Gras immunity statute” which grants immunity to Mardi Gras krewes who throw the beloved treasures at parades. La. R.S. 9:2796 grants immunity to krewes which sponsor parades for any loss or damaged caused by a krewe member, unless such loss or damage was caused by deliberate acts or gross negligence. Though the parades are a cornerstone of New Orleanian culture, we get to enjoy them only at our own risk, with the knowledge that we could be injured by the very beads and throws that draw us to attend. Recently, a long-time Endymion Ball attendee learned this lesson the hard way.

On the Saturday before Mardi Gras 2012, Rose Ann Citron was hit in the head by a bag of beads while the Krewe of Endymion was making its way through the Superdome in New Orleans, Louisiana on its way to the “Extravaganza;” an invitation-only continuation of celebrations held after the parade. Ms. Citron was not an Extravaganza novice. Her husband, Wayne Cintron was a long-time Endymion Krewe member and Mrs. Citron had attended the majority of Extravaganzas over the past thirty years. Nonetheless, the Citrons filed a lawsuit against the Endymion Krewe seeking damages for injuries allegedly sustained in the bead-throwing.

The Edymion Krewe answered, asserting that it benefitted from Louisiana’s Mardi Gras immunity statute. After discovery (the process of gathering evidence for the case), the Edymion Krewe filed a motion for summary judgment based on the immunity statute. It argued that regardless of what acts occurred that night, no reasonable mind could characterize those acts as gross negligence so as to defeat its immunity.

October 25, 2016

Ponchatoula Louisiana Contract Lawsuit Examines Peremptory and Dilatory Exceptions

by Berniard Law Firm

contract-1426885-1024x768 A case arising out of the State of Louisiana First Circuit Court of Appeal considers whether defendants should have been permitted to raise certain peremptory contractual exceptions in the trial court: namely, objections of prescription, peremption, no cause of action, no right of action, and a dilatory exception of vagueness. See LA. C.C.P. Art. 927. Unfortunately for the Plaintiffs, the trial court sustained all of defendant’s exceptions, and dismissed their case.

The case involved two plaintiffs Ryan and Vicki Williams—who entered a contractual agreement with Genuine Parts Company to reopen and operate a previously closed NAPA Auto Parts store in Ponchatoula, Louisiana. The Plaintiffs invested approximately $60,000 to start up the store, and obtained a six-year loan guaranteed by the Genuine Parts Company for the remainder of the costs. Plaintiffs were later offered the chance to operate another NAPA Auto Parts store in Hammond, Louisiana, but when plaintiffs declined that opportunity, Genuine Parts Company contracted with Jeffrey Boone to operate that Hammond store instead. After that, plaintiffs were told their financing would not be renewed, because of their NAPA store’s declining performance. When plaintiff’s loan matured, Genuine Parts Company acquired it, and liquidated plaintiff’s store inventory. Plaintiffs then filed a lawsuit for damages, because of the alleged unfair and deceptive practices by Genuine Parts company and Jeffrey Boone. In its response, Genuine Parts Company filed the peremptory exceptions mentioned above. Mr. Boone also adopted the same exceptions in his response. The trial court granted all exceptions and dismissed plaintiff’s case, so plaintiffs appealed.

Defining the Exceptions