Articles Posted in Litigation

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The Louisiana Court of Appeals’ 1979 ruling in Thompson v. Iberville Parish School Board provides insight into what factors should be considered when asking if a teacher has inappropriately punished a student. This decision reversed a previous ruling in favor of an Iberville Parish elementary school student and found in favor of the school and teacher.

12 year old Bryan Wilson was in a music class at St. Gabriel Elementary school when his teacher extended his leg and pushed him with his foot in the right buttock. The teacher claimed that it was the easiest way to get the unruly student’s attention and that he had been reprimanded previously to turn around and pay attention to no avail. Bryan on the other hand, claimed the kick was extremely hard, causing him to cry out in pain and even miss several days of school. The trial court found in Bryan’s favor and awarded his mother $500 on his behalf for pain and embarrassment suffered. They found that although corporal punishment was acceptable under Louisiana law (and teachers were provided with limited liability from civil suit), the choice of action went beyond what was considered reasonable. To the trial court, the use of a foot for corporal punishment was unreasonable no matter how much force was involved.

The Court of Appeals disagreed, however, and reversed the judgment, pointing to the lack of evidence of any serious injury. Bryan was examined by the school principal and a doctor that same day and there was no visible evidence of injury, nor did any abnormality appear on an x-ray. In addition, evidence had been presented at trial that Bryan was a normal, healthy child who did have a tendency to act up at school. The Court of Appeals found that although there were few situations where a kick, no matter how light, would be reasonable, this was one and that the teacher merely acted to get Bryan’s attention, not inflict pain.

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In the face of the looming oil slick many estuaries and fishing grounds are being closed, leaving hundreds of Louisiana fishermen out of work. As the oil pours into the Gulf, many fishermen are wondering what’s next. While many questions are still up in the air there are a number of issues that fishermen need to be aware of.

The Oil Pollution Act of 1990

The Oil Pollution Act is a federal law that, among other things, allows an affected fisherman to file a claim against BP for his lost profits caused by the oil spill in addition to any other claims he has (i.e. property damage).

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With so many fishermen left out of work, individuals throughout the Gulf Coast are beginning to worry about their future. The Oil Pollution Act provides a legal solution but the ensuing lawsuits will not be helpful in the present. There are two British Petroleum programs that affected fishermen need to be aware of: their claims program and the Vessel of Opportunity program (VOP). These programs can provide immediate assistance for unemployed fishermen.

On its website and in many press releases BP has promised to take full responsibility for the damages that the oil spill has caused. This has included paying out lost-wages claims to fishermen. Under this program fishermen can recover a month in lost wages. Be aware that this recovery is handled by BP, not the National Pollution Funds Center or a court. BP will make a three-year average of a claimant’s income between January and March and pay a one month settlement. This settlement can affect a fisherman’s recovery if he later decides to sue. Currently the pay outs are around $5,000. You can contact their claim center at 1-800-440-0858. If you are not satisfied with their resolution, then you can contact the National Pollution Funds Center at 1-800-280-7118.

BP is also taking on paid volunteers to help in the clean up effort under their “Vessel of Opportunity Program.” Through this program BP employs fishermen to deploy booms in order to stem the flood of oil. BP provides much of the equipment and training to those taking part. While BP will pay fishermen who take part, it is unclear how many boats BP will hire. The last count was around 700, far less than the number of fishermen who are now unemployed.

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In light of some of the more current events affecting citizens of Louisiana, it is important to know and understand property rights resulting from personal property damages from oil spills. Especially in the Gulf region where this event seems to be more common than it should be, you may be entilted to compensation for damaged property. Most personal propety damage as a result of an oil spill will be compensated, but it becomes complex when boats become damaged from an oil spill.


Recently, we discussed the availability of funds under the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) for compensating Louisiana residents who suffer property damage as the result of an oil spill. Claims for oil damage to boats are treated as a separate category from other types of personal property under the OPA.

According to the U.S. Coast Guard’s National Pollution Funds Center web site, the owner of a boat can submit a claim for the cost of removing oil stains from his vessel (including its interior furnishings like upholstery and carpeting) so that the boat is restored to its pre-fouled condition. Claims can also be filed for damage to mechanical parts of the boat, such as an outboard motor, rudder, anchor winch, etc. Oil spills can seriously impact the value of a boat and lead to substantial deterioration of the usability of a boat.

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In a previous post, we explored the role of the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) in compensating Louisiana residents who incur oil removal and clean-up costs. These funds are also available for coastal residents who suffer property damage as a result of an oil spill.

According to the U.S. Coast Guard’s National Pollution Funds Center web site, the OPA permits filings for oil-related losses to real and personal property. Real property damage is defined as “injury to or economic losses resulting from destruction of land or buildings.” For example, the owner of oil-fouled waterfront property can file for reimbursement of the costs to restore the property to its pre-spill condition. Or, if the owner decides to sell the property without restoring it, he can submit a claim for the difference between its pre-spill assessed value and the reduced price he receives for the fouled property after the spill.

Personal property damage is “injury to or economic losses resulting from damages to other types property you own or lease besides real property.” For instance, a fisherman can submit a claim for the cost of cleaning or replacing a shrimp net, fishing tackle, or clothing that is fouled by oil.

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In Mallett v. McNeal, 939 SO.2d 1254, 2005-2289 (La. 10/17/06), the Supreme Court of Louisiana held that an unconditional payment of a property damage claim constitutes an acknowledgement sufficient to interrupt prescription. Thus, for example, an insurance company’s tender of an unconditional payment to an injured third-party claimant is an acknowledgement, and this acknowledgment interrupts prescription. In appropriate cases, Mallett may be of assistance to plaintiffs’ attorneys, who file actions to help injury-victims recover against tortfeasors and insurance companies after the victim’s case has prescribed on its face.

The Court’s holding in Mallett was based upon two consolidated cases. In the first case, plaintiff Jason Mallett (“Mallett”) suffered injuries on January 8, 2004, when his vehicle was struck from behind by defendant Paola McNeal (“McNeal”). McNeal carried an automobile liability policy issued by defendant United States Automobile Association (“USAA”). In November 2004, USAA issued two checks to Mallett: the first for payment of property damage, and the second for additional repairs. On February, 2005, more than a year after the accident, Mallett filed suit against McNeal and USAA, claiming damages for injuries. Because the one year prescription period had run on its face, Mallett’s claim would have been barred, unless USAA’s November 2004 payments interrupted the prescriptive period.

In the second case, plaintiff Charles Richey (“Richey”) was involved in an automobile collision with defendant Kameron Dixon, who was driving a car owned by Keith Dixon (“Dixon”). Dixon was insured by defendant Infinity Insurance Company (“Infinity”). Following the collision, Infinity issued a check to Richey and stated that the check represented payment for the total loss of Richey’s vehicle. Before the end of the prescriptive period, Richey filed suit in an improper venue. Under Louisiana law, if an action is commenced in an improper venue, prescription is interrupted only as to defendants served with process within the prescriptive period. Unfortunately for Richey, no defendants were served before the end of the prescriptive period. Therefore, Richey’s claim would have been barred, unless Infinity’s issuance of checks had interrupted the prescriptive period.

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A patient visiting Lake Charles Hospital, located in Calcasieu Parish, filed a lawsuit against his treating physician alleging the doctor was negligent while diagnosing his symptoms. After the patient was hospitalized, the doctor ordered a stress test. Just minutes after the start of the test, the patient began to suffer from an abnormally rapid heart rhythm. In the lawsuit, the patient argued the doctor should not have ordered the test in light of the patient’s medical history.

All doctors owe their patients a certain level of care. When a physician breaches that level of care, they can be sued for medical malpractice. The Louisiana Revised Statute 9:2794(A) requires patients who believe they are victims of medical malpractice to establish three main elements. First, a patient must establish the standard of care of the doctor. Second, he/she must show that the defendant breached this standard of care. Lastly, a patient must prove “causation.” Specifically, he/she must be able to show that there was a connection between the doctor’s breach of his duty and the patient’s resulting injury.

Establishing a Physician’s Duty to His Patient

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The Louisiana Third Circuit Court of Appeals recently ruled in favor of the owner of a Lafayette hardware store and affirmed the trial court’s granting of Summary Judgment against a customer who was bitten by a spider while shopping there.

While in the store, Lee Johnson picked a rosebush from an outdoor display at the Ace Hardware store owned by Defendant Stine LLC (Stine Lumber/Ace Hardware). An employee carried the bush inside so Johnson could buy it. When Johnson picked it up from the checkout counter several wolf spiders emerged, one of which bit Johnson’s finger. He suffered extreme swelling, slurred speech, and memory loss as a result of the bite and sued the owner of the store for damages.

Two significant issues came up in the Court of Appeals’ opinion that provide insight into what must be proven in a case like this one. First, the Court found that spoilation of evidence with respect to the spider did not apply.

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In the aftermath of the explosion of the Deepwater Horizon and the disastrous oil spill that now encroaches on Louisiana’s coastline, many individuals and business will be looking for a way to handle the massive financial burden associated with clean up and recovery. Luckily, the law provides a way for them to collect some damages.

The Oil Pollution Act

In 1989 the Exxon Valdez spilled over 11 million gallons of oil into Prince William Sound in Alaska. At the time, the U.S. did not have adequate funds to respond to the spill and only very narrow compensable damages could be recovered. The Oil Pollution Act (OPA) was passed by Congress in 1990 (33 U.S.C. 2701-2761) to address these shortcomings. The OPA created a comprehensive regime to prevent, respond to, and compensate for vessel and facility caused oil pollution. The law also provided for federal oversight of maritime oil transportation through increased environmental safeguards.

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The massive oil slick drifting ominously in the Gulf of Mexico has state officials worried for the health of Louisiana residents who live along the coast. Since April 20, when the oil rig Deepwater Horizon exploded and subsequently sank, oil has been flowing into the Gulf at a rate of up to 200,000 gallons per day. The fact that the oil has not yet reached land is largely the result of favorable winds and currents, both of which are subject to change at any moment. As of Friday afternoon, underwater robots had begun positioning a four-story tall, 100-ton box made of concrete and steel over the gushing well on the sea floor. The device will permit crews to recover most of the oil from the well, but it will not entirely stem the flow. It will also do nothing to address the oil that has already escaped and looms ever closer to the coast.

According to an AP story carried by Yahoo News on May 7, state and federal authorities are gearing up to deal with the many hazards to human health that will result if and when the oil reaches land. Officials are advising coastal residents to take precautions now. “We don’t know how long this spill will last or how much oil we’ll be dealing with, so there’s a lot of unknowns,” Dr. Jimmy Guidry, Louisiana’s state health director, said. “But we’re going to make things as safe as humanly possible.”

Last week, in what many saw as a preview of things to come, a foul stench drifted over parts of lower Louisiana. According to Alan Levine, secretary of the Louisiana Department of Health and Hospitals, the oil was likely to blame. Levine’s office received numerous complaints, some from state legislators in New Orleans, who were more than 130 miles from the epicenter of the disaster.

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