Litigation

February 24, 2023

Injured Worker Failed to Establish Disability Resulted From Work-Related Injury

sparks_working_industry_metal-1024x711 What happens if you are hurt on the job? Not only do you have to deal with the physical effects of your injury, but you also have to navigate when it is safe to return to work. The workers’ compensation system is designed to aid injured workers. It can provide compensation for lost wages and medical treatment. However, it can often be complex to navigate.

This is the situation Eduardo Sanchez, an ironworker at MEMCO Inc., found himself in after he slipped from a metal beam while working. His safety harness caught him. Once safely on the ground, medical personnel at the worksite examined him, and he was sent home to rest. The next day, Sanchez reported to work and complained of a headache and pain in his back, neck, and testicle. He was sent home. Sanchez’s supervisor at MEMCO sent him to see a doctor. The doctor diagnosed Sanchez with a cervical and lumbar strain and released him to return to work “as tolerated.”

Two days later, Sanchez went to the emergency room complaining of chest, testicular, and lumbar pain. The emergency room doctor diagnosed him with lumbosacral strain, chest wall contusion, and a scrotal contusion. Sanchez returned to the doctor who first examined him. He released Sanchez to return to work on restricted duty “as tolerated.” About ten days later, Sanchez returned to the doctor, who discharged him to return to work “full duty.”

February 23, 2023

Drivers of Emergency Vehicles Held to Unique Standard of Care in Louisiana

by Berniard Law Firm

police_baltimore_police_officer-1024x648 Despite stringent rules and regulations designed to keep unlicensed drivers off the road, minors often find their way behind the wheel. Police in Gonzales, Louisiana, were forced to reckon with the seriousness of such a driver when a high-speed police chase on Interstate 10 turned deadly in May of 2004. The outcome of this chase became the subject of a lawsuit left unsettled until 2017—a case which pondered: to what standard should police be held when engaged in an active car chase?

Just before eight o’clock in the evening, a Gonzales city police officer noticed an Oldsmobile without its headlights activated. The car, failing to stop or slow down, was pursued onto Interstate 10 by Louisiana State Police. The chase continued for nearly twenty minutes despite attempts to stop the vehicle with a spike strip. Then, the Oldsmobile’s fourteen-year-old driver lost control of the car and spun into a vehicle traveling in the opposite direction, driven by the Bristols. The Oldsmobile driver died on impact, while all seven passengers in the other car were severely injured, prompting a lawsuit against the Louisiana State Police. At trial, a jury found no liability for the Bristols’ injuries on the part of the department, and an appeal followed.

The Louisiana Highway Regulatory Act is excepted by La R.S. 32:24—which provides, under certain circumstances, statutory immunity to drivers of emergency vehicles. As such, police officers are allowed to exceed maximum speed limits and disregard other road rules so long as they maintain regard for the safety of others and have their audible or visual signals activated. However, this exception is not absolute: juries are allowed to determine, based on the circumstances and after being instructed on the law, whether a standard of ordinary negligence or a heightened reckless disregard standard should gauge the standard of care for an emergency vehicle driver. Lenard v. Dilley, 784 So.2d 706 (La. Ct. App. 2001).

February 22, 2023

Lawyer’s Lack of Persistence Causes Baton Rouge Slip and Fall Lawsuit to Fail

by Berniard Law Firm

hospital_hospital_corridor_921034-682x1024 Personal injuries occur every day in society and should be taken seriously. Yet, courts must judge the importance of each accident. As a result, not all injuries are ruled in favor of the injured individual. A lawyer representing an injured person must investigate the circumstances and facts surrounding the injury with due diligence. The lawyer must show the court that his client’s case should be heard because the evidence says so. However, when video evidence of a slip and fall injury in a hospital is not obtained, should a court allow the lawyer to continue investigating his client’s accident? A case out of Baton Rouge explores this question and reminds lawyers of their responsibility to act diligently in attaining evidence for their clients.

Bobbie Davis Cole was visiting her sister, a Baton Rouge General Medical Center (BGR) patient. When Ms. Cole entered the hospital, she slipped and fell on a slippery substance on the floor and was then helped by the security guard. Ms. Cole filed a lawsuit against BGR, claiming the security guard told her that others had fallen in the same area she had.

BGR moved for summary judgment. A summary judgment would allow for the dismissal of the case. In filing this motion, BGR argued that Ms. Cole could not prove a foreign substance on the hospital floor injured her. Ms. Cole took the testimony of the security guard, who asserted he looked at the video camera footage and did not see anything on the floor. At the hearing for summary judgment, Ms. Cole filed a motion of continuance, which would allow her to continue the discovery process, contending that she was not ready to go forth with the hearing without having the surveillance video of her fall. The trial court denied her continuance motion and granted the hospital’s summary judgment dismissing Ms. Cole’s case. An appeal of the ruling followed.

February 21, 2023

Can I sue my Employer if I was robbed while at Work in Louisiana?

by Berniard Law Firm

bandit_playmobil_shield_western-683x1024 It’s reasonable to want to feel safe at work, no matter your job. Employers must keep their employees free from unnecessary danger and generally provide a safe working environment. Even given this duty, the law doesn’t always hold them responsible for the actions of criminals. A recent lawsuit out of Lafayette discusses the principles court asses to determine what remedies are available to employees when crime happens.

Melody Smith (Smith), an employee of Circle K, was robbed at gunpoint by Marcus Sam while making a bank deposit for the store. After the incident, Smith filed a lawsuit and was eligible for workers’ compensation benefits. Workers’ Compensation is an exclusive remedy for accidents in the workplace. R.S. 23:1032(A)(1)(a).

Smith later filed an amended and supplemental lawsuit that claimed Circle K committed intentional torts of assault and battery on her because they created an environment for her to be robbed. Smith argued that because Sam overheard her manager telling her to make a bank deposit the robbery was inevitable. Circle K disputed Smith’s claims and filed a motion for summary judgment.

February 20, 2023

Can the Time to File a Lawsuit in Louisiana Be Extended Due to Discovery Issues?

by Berniard Law Firm

cable_electricity_cables_electric-575x1024 Have you ever noticed that running alongside power lines are other types of cables? They are not easily distinguishable from one another, but communication lines and support lines also run along our electricity source. Looking so similar, it would be hard for an ordinary person to tell to whom each line belonged. One New Orleans man’s inability to determine the owner of such a wire almost prohibited him from filing a lawsuit against a well-known communications company.

Donald Morgan was at Canal Street and South Jefferson Davis Parkway intersection in New Orleans when he tripped over a guy wire (anchoring wires) and was injured. Mr. Morgan’s attorney personally inspected the utility pole attached to the guy wire before filing a lawsuit. The pole was marked with the name of a company that was no longer in business. Mr. Morgan’s attorney traced the pole to Entergy New Orleans, Inc. (“Entergy”).

After filing a lawsuit naming Entergy as the defendant, Mr. Morgan sent discovery requests to Entergy requesting the name of the guy wire owner. The requests specifically asked for the names of any person/company with any interest in the guy wire and the names of any person/company responsible for maintaining the wire. In response, Entergy merely attached a joint use agreement for the pole between Entergy and Bellsouth.

February 18, 2023

Injured Employee Argues New Orleans Trial Court Judgment was Premature due to Inadequate Discovery

by Berniard Law Firm

lever_metal_handle_door-1024x685 Imagine getting hurt on the job, seeking help from a good attorney, following all the court’s requirements, and still having all your claims denied because your opponent did not appear for a deposition. For Raymond Schultz (“Schultz”), an employee of Blanchard Contractors, this scenario became his reality after the District Court in Orleans Parish dismissed all his claims and denied his motion for a new trial.

Back in 2012, Schultz was injured in a work-related accident after he inadvertently touched an unmarked pressurized lever that spewed rust and slag, striking him in the stomach and knocking him into some nearby water from which he was later rescued. As a result, Schultz filed a negligence lawsuit against Cox Operating, L.L.C. (“Cox”) and Terry Vincent (“Vincent”) (collectively “Defendants”), alleging that each of the Defendants mentioned above fault caused his injuries.

Defendants countered Schultz’s claims using a legal argument. They argued that since Schultz was Cox’s statutory employee, this made him Vincent’s statutory co-employee, and Schultz’s sole remedy falls under the Louisiana Workers’ Compensation Act. Defendants argued this legal argument would cause his negligence claims to be effectively barred from the lawsuit. After the District Court heard motions on each side of these arguments, it allowed Schultz six months to conduct discovery to build his case for trial.

February 17, 2023

A Doctor’s Indiscretion or Abuse of Discretion? Louisiana Supreme Court Weighs In

by Berniard Law Firm

hospital_ward_hospital_medical_0-1024x683 Sickness often begets a doctor’s visit, and sometimes severe illness calls for a trip to the emergency room. So when parents, David Pitts, Jr. and Kenyetta Gurley, arrived at Hood Memorial Hospital in Amite City, Louisiana, with their daughter, Lyric, it’s likely neither expected to leave there without their daughter’s health restored.

Upon arrival at the emergency room, Lyric’s mother described her daughter’s symptoms as breathing “funny” and faster than usual and disclosed that she had thrown up twice earlier in the day. The hospital recorded that “Lyric had not had any liquid intake since 4:00 PM, and no output (i.e., dirty diaper) since 2:00 PM.” Around 7:30 PM, after Dr. Rhoda Jones (“Dr. Jones”) examined Lyric, she noted Lyric’s “shortness of breath” and “wheezing” in her lungs. Dr. Jones’s initial diagnosis was “asthma, possible pneumonia, and RSV,” so she ordered a chest x-ray, CBC (complete blood count), CMP (comprehensive metabolic panel), and a test for RSV (respiratory syncytial virus). The results of the chest x-ray came back normal, and the RSV test came back negative. Nevertheless, one of the nurses tending to Lyric had asked Dr. Jones at least three times if Lyric could be taken to another facility. Still, Dr. Jones insisted that no one would admit Lyric with negative or normal lab results and no fever.

Lyric stayed at the hospital overnight. However, by 2:30 AM, Dr. Jones was called in to check on Lyric, and at approximately 3:00 PM, while she was holding Lyric, the 7-month-old baby had a seizure and stopped breathing. About an hour later, Lyric was declared dead, and the cause of death was listed as myocarditis (inflammation of the heart muscle).

February 16, 2023

Discrimination Lawsuit Against Florida Parishes Juvenile Justice Commission Dismissed Due to Prescription

by Berniard Law Firm

clock_time_time_indicating_6-1024x768 Timing is always important; however, in legal matters, it determines whether you can even bring a lawsuit to the courts. In most states, the time frame to bring lawsuits is called the statute of limitations, and in Louisiana, it is called prescription. Generally, you have one year to file a lawsuit. However, that time period can change depending on several factors. The intricacies of prescription recently resulted in dismissing a case out of the Florida Parishes.

In 2006, Tammy L. Briggs was hired as a cook by the Florida Parishes Juvenile Detention Center. She was fired on August 19, 2014, for violating the Detention Center’s rules and procedures. Ms. Briggs filed an Equal Employment Opportunity Commission (EEOC) complaint with the Louisiana Commission on Human Rights, stating that her termination was based on racial and gender discrimination.

A year later, the EEOC sent Ms. Briggs a “Dismissal and Notice of Rights” letter, stating that, after its investigation, it could not conclude that any violation had occurred. The “Dismissal and Notice of Rights” included information saying that Ms. Briggs only had 90 days to file a lawsuit against the defendants, Florida Parishes Juvenile Justice Commission, and the Detention Center. However, she filed her lawsuit on December 8, 2015, and the defendants raised the objection of prescription by filing a peremptory exception or in the alternative, motion for summary judgment. This means that the defendants argued that the lawsuit was filed too late. Because the case was filed too late, they argued that the Twenty-First Judicial District Court for the Parish of Tangipahoa should dismiss it.

February 15, 2023

Who should be held liable for a pileup on the highway shoulder?

by Berniard Law Firm

highway_jam_baustelle_jam-1024x769 Imagine you were just in an accident, and you pulled over on the shoulder of the interstate highway. Traffic is roaring in your ears, the wind is whipping past your face, and you can feel the congested car flows as your tires buzz. Luckily, you are not injured. As you are waiting for the police to arrive, another collision happens right beside you two. Brakes are being slammed, and horns are being blown, but the chain reaction is just unstoppable. A third car darts into the road shoulder, toppling the vehicle behind you and slamming it in your direction. You are hit again.

According to the National Highway and Traffic Safety Administration, rear-end collisions are the most common type of car accident in the United States. A pileup accident multiplies the danger of a single rear-end accident. It often causes severe body injuries, expensive medical bills, and piles of insurance paperwork. Who should be held liable for your pain and suffering when pileups occur? A recent case on Interstate 10 explored this question and provided answers for the poor victims.

Mr. Chanthasalo found himself in such a position where he just had a narrow escape from one life-threatening accident but got involved in another. In the first accident, Mr. Chanthasalo was rear-ended by Ms. Deshotel. In the second accident, Ms. Schum was rear-ended by Mr. Mitchell and hit Ms. Deshotel. Mr. Chanthasalo filed a lawsuit in Louisiana trial court against all three cars behind him and their respective insurers, State Farm, USAA Casualty Insurance Company, and Progressive. He later settled with Mr. Mitchell, the last driver, and his insurer. The controversy in the appeal focused mainly on Ms. Deshotel’s (the lady that first hit Chanthasalo) liability.

February 14, 2023

Decretal Language: Last Words in a Final Judgment

by Berniard Law Firm

town_sign_place_name_1-1024x678 Decretal language, what on earth is it, and why is it so important? The Louisiana Third Circuit Court of Appeal recently dismissed an appeal because the trial court’s judgment lacked proper decretal language. So what are these “magic words”? Why are they indispensable for a final judgment to be given legal effect?

Vera Bernard injured herself when exiting the Lafayette Regional Airport through a turnstile allegedly malfunctioning. Later she filed a lawsuit against various parties. Ms. Bernard settled with several defendants, leaving the turnstile company (Stanley) as the only Defendant. Stanley argued that they provided no service before Ms. Bernard’s misfortune that could cause the malfunction of the turnstile.

After a hearing on a motion filed by Stanley, the District Court dismissed all of Ms. Bernard’s claims, but the final judgment did not include the all-important “decretal language.” An appeal followed, and the appellate court spelled out precisely what was required for the Appellate Court to proceed with their review.