Articles Posted in Miscellaneous

close-up-photography-of-silver-sports-car-1236809-683x1024Exceptions exist everywhere in law. Although people in their normal and daily lives are expected to stop at a red light and follow the speed limit, police officers need not do so when responding to emergencies. Of course, this exception makes sense. Imagine what would happen if a police officer has to respond to a shooting but has to sit in traffic. But should police officers be free from any liability for the damages they may cause while responding to an emergency? 

Near a convenience store situated on the West Bank of Jefferson Parish, Kim White met a man she knew from the neighborhood. The man asked White whether she could help him purchase heroin. White agreed and got into the man’s car, and the two drove around in search for heroin. Little did White know, the man’s car was stolen. A short while later, White and the man noticed that a police car was tailing them. Rather than stopping, the man accelerated, and a high speed chase ensued. Eventually, the man stopped the car at a parking lot. Though the man ran away, White was struck by a police cruiser. White filed a lawsuit against the Jefferson Parish Sheriff’s Office. At trial, White testified that, upon exiting the vehicle, she had her hands up and surrendered to the police. On cross-examination, however, a prior deposition revealed that White had not raised her hands at the time of crash. 

Deputy Paul Gegenheimer was the officer whose vehicle crashed into White. He testified that White appeared to be running away and that he did not intentionally run his vehicle into White. He stated that he was going around five to ten miles per hour when he hit White. Deputy Johnnie Petit, Jr., another officer who was involved in the chase, testified that he did not see Deputy Gegenheimer’s vehicle strike White. Deputy Mike Tisdale arrived at the scene two minutes after the crash and noted that White was in considerable amounts of pain. However, he did not notice any error in Deputy Gegenheimer’s driving. Major Kerry Najolia, director of training for the Jefferson Parish Sheriff’s Office, testified that officers were immune under La. R.S. 32:24 from liability for any accidents they cause during pursuits of a stolen vehicle. The Trial Court denied relief for White. White appealed, arguing that La. R.S. 32:24 did not apply in her case. 

close-up-court-courthouse-hammer-534204-1024x569After a hard fought jury trial, an appeal can be expected. But, what cannot be anticipated is a transcribing error by the court that renders the judgment as invalid and makes any appeal impossible. Excellent attorneys can catch errors by other parties and avoid multiple extra steps before a lawsuit can be resolved. That was the case here as mismatching damage award classification labels extended a lawsuit well beyond its anticipated end.

Willie Brown, Jr., was a customer at the Silver’s Casino in Breaux Bridge. After a power outage at the casino and at the direction of an employee of the Casino, Mr. Brown tripped over a sidewalk while he was entering the premises. Mr. Brown suffered injuries to his right knee, left shoulder, and also his head.

Mr. Brown saw a doctor for his injuries and was diagnosed with a cervical disc issue. The doctor recommended surgery to repair the injuries and estimated that the surgery would cost $85,000. Mr. Brown also saw a doctor at the request of Silver’s Casino and received a much lower medical cost estimate. Silver’s doctor suggested that Mr. Brown did not need surgery and instead only needed an injection for pain that would cost $1,000.

gasoline-station-during-night-time-92077-1024x489The five factor Daubert test is used in federal courts to determine if the methodology used by medical and other experts is reliable. The five factors that may be considered under the Daubert standard to determine whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. See Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

In this case, Natalie Konrick (“Ms. Konrick”) worked as a security guard at a refinery in Louisiana that was owned by Chalmette Refinery, L.L.C. (“Chalmette”) and operated by Exxon Mobil Corporation (“Exxon”). She, unfortunately, had a stillborn baby, allegedly as a result of the toxins to which she was exposed to while working at Chalmette. Ms. Konrick obtained experts Dr. Robert Harrison, Dr. Cynthia Bearer, and Dr. Lauren Waters to testify regarding the general causation of her having a stillborn baby.

The District Court granted Chalmette’s motion to exclude the three expert’s testimony because it found that their opinions were based on unreliable methodologies. As a result of the grant of the motion to exclude expert testimony, summary judgment was granted in favor of Chalmette because there was no evidence of general causation as to the stillborn baby.

photography-of-police-car-during-night-time-1098663-1024x683High speed police chases are sometimes dangerous, even for those not involved.  The Louisiana Emergency Vehicles Statute essentially excuses emergency vehicle drivers, such as police vehicles, from obeying certain traffic laws while responding to a call or pursuing a suspect.  This applies unless the emergency response driver endangers life or property with “reckless disregard”. La. R.S.32:24. Of course, the question remains of what  types of behavior would make the difference.  The Louisiana Third Circuit Court of Appeal recently answered this question in an unpublished opinion.

In April 2012, Gwendolyn Martin was a passenger in a car driven by her son at about 1:00 AM in the town of Eunice, Louisiana.  When their car proceeded under a green light into an intersection, a police car driven by Officer Jacob Hanks collided with them. The officer had been responding to an emergency call that then developed into a high speed chase. The suspect, with officers in pursuit, had been driving over 90 miles per hour.  As a result of the collision, Ms. Martin was injured. She thus sued the city and Officer Hanks. In 2016, the trial court found in favor of the defendants pursuant to the Louisiana Emergency Vehicles Statute. Ms. Martin appealed.

In order to determine whether or not the trial court had ruled correctly in this case, the Third Circuit considered the facts in accordance with the statute’s requirements.  The statute specifically allows for emergency vehicles to proceed through red lights or stop signs, to exceed speed limits, and to disregard regulations regarding proper movement direction.  These exceptions only apply when the emergency vehicle uses signals to warn others, such as lights or sirens. The statute also requires that the driver of the emergency vehicle drive in a relatively safe manner.  La. R.S.32:24.  The court considered testimony from other police officers that had responded to the emergency call.  These statements showed both that the call had been legitimate and that all the responding officers, including Officer Hanks, used sirens and lights during the high speed chase.  Officer Hanks also testified that he had attempted to stop at the red light in question, and he had ultimately slowed to about 10 miles per hour when the accident occurred. Officer Hanks stated that he had attempted an evasive maneuver when he saw the other vehicle driven by Ms. Martin’s son.   In its decision, the Third Circuit considered other cases with similar situations including Lemonia v. Lafayette Parish Consolidated Government, 893 So.2d 925 (La. Ct. App. 2005).  Based on facts similar to the ones in Ms. Martin’s case, the Third Circuit held that the exceptions in the statute had been satisfied.

blond-hair-desk-employee-1181534-1024x684Employment discrimination can take many forms. One common form is gender discrimination. However, an employer may be able to avoid liability if they can provide legitimate and nondiscriminatory reasons why they decided to hire someone else that are not based on the candidate’s gender.

Tensas Parish School Board (“TPSB”) needed a head football coach and athletic director for Tensas High School, so they posted a job advertisement in March 2011. Due to budgetary constraints, TPSB requires that all coaches also teach. Sue Ann Easterling, who had prior experience coaching high school basketball, softball, gymnastics, volleyball, and track and field, applied for the job. Including Easterling, a total of seven people applied for the job. Easterling called the superintendent, Carol Johnson, after submitting her application in order to express her interest in the job. During the call, Easterling and Johnson discussed how Easterling had no experience as a football coach or as an athletic director, although she was a certified teacher. Easterling was not one of the three applicants contacted for follow-up interviews. 

The first man to whom Johnson offered the position turned down the job at the last minute. The next man, Rex McCarthy, who was offered and accepted the job was already the interim head football coach at the high school. When Easterling learned she had not received the job, she requested that she be considered for any job openings the following year. McCarthy resigned from the position the following year. Easterling still was not hired for the position.

auditorium-benches-chairs-207691-1024x731Generally, terminating an employee on the basis of race is a violation of the Louisiana Employment Discrimination Law, which is similar to Title VII of the Civil Rights Act of 1964. La. R.S.23:301; 42 U.S.C.A. § 2000. Generally, to establish a case of racial discrimination under the Louisiana Employment Discrimination Law, the plaintiff must show that: (1) she belongs to a protected group; (2) she had appropriate qualification for the position; (3) she suffered an adverse employment action; and (4) she was replaced by someone not in her protected group. Mbarika v. Board of Sup’rs of Louisiana State University, 992 So.2d 551, 562 (La. Ct. App. 2008).

In this case, three employees of Education Management, Inc. d/b/a Blue Cliff College (“Blue Cliff”) filed a lawsuit alleging that they were fired due to being Caucasian. On November 7, 2008, a customer at Blue Cliff’s cosmetology school’s beauty salon made a comment regarding recently elected President Barack Obama, which caused a disruption in the salon. Two Blue Cliff employees, Nedina Chaisson (“Chaisson”) and Melissa Shapcotte (“Shapcotte”), were working with the students in the salon when the incident occurred. Joe Rogalski (“Rogalski”) subsequently expelled four African American students who were involved in the November 7th incident. Shortly after the four students were expelled, they were reinstated by Blue Cliff, and Chaisson, Shapcotte and Rogalski were discharged for “inappropriate professional behavior” and mishandling the November 7th incident.

In the lawsuit, the trial court granted summary judgment in favor of Blue Cliff, dismissing all of the plaintiffs’ claims with prejudice. The plaintiffs appealed, arguing that the trial court erred in admitting the affidavit of Reginald L. Moore, the president and CEO of Blue Cliff. The plaintiffs claimed that this affidavit was improper, as it contained 12 unverified, unsworn witness statements. Generally, an affidavit may be challenged via a motion to strike.

28-Email-06_24_19-pictureCan a court reinstate a former city employee’s job after being wrongly terminated? Well, fortunately for Mr. Turner, the answer is yes. 

In 2003, Ron Turner began work as the Director of Public Works for the City of Opelousas. Eight years later, the Board of Alderman had a meeting, and Item 7 on the agenda was a “discussion regarding Turner’s employment.” During the meeting, Mr. Turner specified that they failed to notify him that his employment was up for discussion, and they removed the item from the agenda. Once they removed the item from the agenda, Mr. Turner left the meeting and did not stay for the rest of it.

As the meeting progressed, the board got to Item 16 of the agenda, which discussed the mayor’s appointments for 2011. The mayor presented an organizational chart that included all the departments and their appointments, and the box for Public Works had a replacement for Mr. Turner. The board approved the new appointments, and the mayor presented a termination letter to Mr. Turner.

55What would it take for an appellate court to overturn an award of damages? According to the Louisiana 3rd Circuit Court of Appeal, the bar is set high and very rarely does an award for damages get overturned as long as it’s reasonable. Lafayette Motors employed Mr. Menard as a service advisor. In August 2003, Dr. Stroy came to Lafayette Motors to obtain a copy of the repair estimate for his wife’s car. While Menard made a copy of the estimate, the shop manager instructed Menard not to give the estimate to Dr. Stroy. Menard crumpled up the estimate to place it in the trash; however his right wrist was grabbed and twisted by Dr. Stroy. Dr. Story proceeded to take the estimate and leave the premises with it. Menard had injuries to his wrist and arm and was later diagnosed with tendinitis by an orthopedic surgeon. Almost ten years later, Menard testified he still had pain in his wrist.

A year after the incident occurred, Menard filed a petition for damages. His petition alleged that Dr. Stroy’s actions were the proximate cause of his injuries, and he wanted damages for the medical bills he incurred at the time of the incident. Dr. Story filed an answer to the petition, as well as petitioning for reconventional demand alleging Menard made public statements that were slanderous and defamatory. He further alleged that these statements caused him to suffer embarrassment, humiliation, and mental anguish. Menard filed a motion to strike or dismiss the reconventional demand, and the court granted the motion. Menard then added Dr. Stroy’s insurance company as a defendant, and they responded by saying that the police did not provide coverage for that particular incident. The insurance company filed a motion for summary judgment, and the trial court denied it. A bench trial was held, and the court ruled in favor of Menard and awarded him $3,000 in general damages and $3,048 in special damages for the medical expenses from August 2003 to November 2003.

The standard of review, in this case, is really what this case turns on and, in this case, there is broad discretion owed to the trier of fact when it comes to fixing awards for general damages. See Hollenbeck v. Oceaneering Int., Inc., 685 So.2d 163 (La. 1997). Unless the record shows that a factual and reasonable basis does not exist and the finding is wrong or erroneous, an appellate court should not disturb a finding of fact. See Thibodeaux v. Comeaux, 69 So.3d 674, 679 (La. App. Ct. 2011).

36-Email-06-24-19-PHOTO-1024x569Terms of Sale commonly include an “escape clause,” which gives the buyer a way out of a contract if unplanned circumstances arise. It is often a lawyer’s obligation to ensure that this clause is present in a contract, because if the lawyer fails to include one, this could result in malpractice.  However, in order to receive recovery from the malpractice, the aggrieved party must promptly bring a lawsuit. The Longs family of Long’s Preferred Products, Inc. in Alexandria, LA, learned this the hard way when they sued their lawyer in the Ninth Judicial District Court Parish of Rapides for not including an escape clause in a stock purchase.

 Charles Elliot represented the Longs in a stock purchase of $500,000 worth of shares from Linda Minton. On March 28, 2011, both parties agreed to the Terms of Sale and on April 29, 2011, the Longs signed the $500,000 promissory note that promised payment to Linda Minton. The Longs relied on receiving loan approval in order to pay on this note, but on August 11, 2011, the Longs’ loan was denied. Twelve days later, they discovered that they were sued to enforce the promissory note. The Longs hoped that an escape clause in the Terms of Sale would relieve them from the duty to pay; however, their lawyer, Elliot, failed to include one.

 In May 2013, the Longs spoke with a different lawyer, and on April 28th, 2014, the Longs sued Elliot for malpractice in the Ninth Judicial District Court. The District Court ruled that this lawsuit was perempted, which means that the Longs lost their right to bring a lawsuit.

55For some people, getting fired from work is like receiving the death sentence.  In the following case, an employee was fired without any reason by his employer. The employer also tried to shortchange him by not giving him his earned wages. However, the employer fought back and, more or less, was vindicated under Louisiana law.

Ralph J. Hanks worked at Louisiana Companies as an insurance producer for more than two decades. However, on November 10, 2009, his employer terminated him without any explanation. As part of his termination, he was given a Separation Agreement (“Agreement”) to sign, which stated that Louisiana Companies would pay the wages he had thus far earned. The Agreement also stated that Hanks would sell his Louisiana Companies stocks to Louisiana Companies. Furthermore, Hanks would agree not to sue Louisiana Companies or solicit current Louisiana Companies employees. If Hanks were to sue or solicit customers, then Louisiana Companies stated that it would not pay the wages he had earned.

Hanks signed the Agreement on December 1, 2009. In February 2010, Hanks began working for another employer, First Federal. First Federal shared that it had hired Hanks through a local billboard and newspapers. As a result, some of Louisiana Companies’ customers moved to First Federal for their business. Soon after, Louisiana Companies notified Hanks that he had violated the Agreement and stated that it would not pay his earned wages. Hanks sued Louisiana Companies. The district court found that Louisiana Companies’ Separation Agreement was null and void because Louisiana Companies, by making Hanks sign the Agreement, violated Louisiana’s wage payment statute. Louisiana Companies appealed. 

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