Articles Posted in Negligence

old-meets-new-1222960-1024x685Owning a business can be a daunting task and often times requires the assistance of outside contractors to complete various maintenance items and to aid in the upkeep of the premises. However, many merchants and customers fail to realize that the merchant may be liable for the actions of a subcontractor.  Just how liable was the subject of a recent lawsuit out of New Iberia.  

In this case, Patricia Ann Thompson filed a lawsuit against a Winn-Dixie grocery store in New Iberia, Louisiana after slipping and falling on a puddle in the freezer section of the store. Winn-Dixie contracted with a cleaning service which in turn contracted with KAP Cleaning Services (“KAP”) to clean the store. KAPS’s employee rolled up a mat to clean the floor in front of the freezer where Ms. Thompson fell.  Moving this mat caused water to be exposed and ultimately led to Ms. Thompson slipping and falling on the grocer’s premise and sustaining injury. The Trial Court held that Winn-Dixie was 30 percent at fault and KAP was 70 percent at fault. Yet, the Louisiana Third Circuit Court of Appeal amended the distribution of fault and held that Winn-Dixie was 100 percent liable for Ms. Thompson’s injuries. The Court of Appeal supported its decision on two grounds.  First, the Court of Appeal found that Winn-Dixie as the merchant was statutorily not permitted to share liability with a subcontractor.  Second, the Court of Appeal found the contractual arrangement between the two parties allowed for operational control by Winn-Dixie over KAP’s employees which would not shield it from liability for a subcontractor’s actions.  Winn-Dixie appealed to the Louisiana Supreme Court.  

Generally, a merchant owes a duty to those on their premises to exercise reasonable care to keep its floors in a reasonably safe condition and to keep the store free of hazardous conditions under  La. R.S. 9: 2800.6. However, when a merchant hires a subcontractor it can be more difficult for a court to assign fault.  Generally, a principal is not liable for the actions of a subcontractor unless the principal retains the right to supervise or control the subcontractor’s work. See Sys. Contractors Corp. v. Williams & Associates Architects, 769 So. 2d 777 (La. Ct. App. 2000).    La. C.C. art. 2323 and La. C.C. art. 2324 do not eliminate or make any exceptions for a merchant’s liability under La. R.S. 9:2800.6 but rather provide for comparative fault.  Louisiana courts will apportion fault based on parties’ knowledge and control over the condition that created peril.  See Watson v. State Farm Fire and Casualty Insurance Co., 469 So. 2d 967 (La. 1985) Under the Watson factor test, courts assess: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the ability of the actor, whether superior or inferior, and (5) any circumstances which might require the actor to proceed in haste without proper thought.

sign-1230883-1024x768Drivers always have a duty to drive with a standard of care that can ensure the cars immediately around them are safe from a collision. But how far does that duty reach? That was the question when a Parish of Calcasieu man entered the highway from the shoulder which resulted in only the first and second cars behind him to slow down, while a third following car was forced off of the road.

The Defendant, David Majoria, was an employee of Groendyke Transport when he entered Interstate 210 from the shoulder of the road. When Mr. Majoria entered the highway it caused the vehicle behind him with an unknown driver to brake. A second vehicle behind Mr. Majoria was driven by the plaintiff’s brother, who also braked. The third vehicle in the lineup was an eighteen to twenty-foot camper, driven by Plaintiff Shane Maylen.   

Mr. Maylen was driving a truck towing an eighteen to a twenty-foot camper and a sixteen-foot boat when he attempted to brake after Mr. Majoria’s car entered the highway.  Mr. Maylen’s truck veered off of the highway and onto the shoulder of the road where his vehicle jack-knifed and caused a right-shoulder injury. No other vehicle was involved in the collision.

chemical-stuff-1-1489274-1024x768When multiple companies work together on a project that causes an injury how is liability decided between the companies? That was the case when two Parish of Jackson truck drivers and their trucks were sprayed with acid from a broken hose. The two companies in charge of the project pointed the finger at each other and tried to avoid liability. This case deals with issues of negligence in inspection and the importance of causation in a negligence claim.

Two independent contractor truck drivers, Gregory Robert and Earl Pania, were hired by Turner Specialty Services (Turner) to supply truckloads of hydrochloric acid to clean pulp mill tanks for RockTenn CP, L.L.C. (RockTenn).  Mr. Robert’s truck was the first to pump acid into the tank while Mr. Pania waited to go next. Turner employee William Thomas pumped nine gallons of acid when the measuring gauge stopped. Mr. Thomas stopped pumping, checked his equipment supplied by Turner, and found no problem. RockTenn was asked to check its equipment and RockTenn found no problem and instructed Mr. Thomas to resume pumping acid. The acid still did not pump.

Mr. Thomas increased the pressure on Turner’s pump on his next attempt. The Turner hose ruptured, sprayed Mr. Thomas with acid, as well as Mr. Robert and Mr. Pania’s trucks. Mr. Robert and Mr. Pania also claimed to have come into contact with the acid fumes and that their trucks were damaged from the acid.

prison-door-1515179-683x1024Law abiding citizen or not, people expect local governments to keep them safe, especially from dangerous conditions on public property.  But, just how much responsibility do local governments have in keeping public grounds safe?  This question was recently answered in a case coming out of Lafayette Parish.

On November 15, 2012, Summer Hunter, an inmate at Lafayette Parish Correctional Facility, was injured while being transported to the courthouse.  Prior to the transfer, Ms. Hunter was handcuffed and shackled at the legs.  Ms. Hunter was being escorted across the street by a deputy when her leg shackles became entangled on an expansion joint between slabs of the sidewalk.  This caused Ms. Hunter to fall, resulting in a fractured ankle.

On November 13, 2013, Ms. Hunter filed a lawsuit in the Fifteenth Judicial District Court against the Lafayette Consolidated Government (“The Parish”) for injuries sustained as a result of the fall.  In response, the Parish filed a motion to dismiss Ms. Hunter’s claim.  The Parish asserted that it could not liable for Ms. Hunter’s injuries because it was not aware of any problem with the sidewalk prior to the date of her accident.  The District Court granted the Parish’s motion to dismiss the lawsuit, finding that Ms. Hunter lacked the ability to present any evidence that the Parish had notice of the dangerous sidewalk.  The District Court acknowledged that cities have a responsibility to keep its sidewalk reasonably safe, however, reasonably safe and perfect condition are not synonymous.

stripe-4-1189901-1024x768Automobile accidents are an unfortunately common occurrence; becoming increasingly more common with the temptations of texting and social media use while driving.   While not all accidents result in life-threatening injuries, they do most often come with at least the headache of assigning fault.  Figuring out who was at fault sometimes comes down to a game of “he said, she said” before a judge or jury.   And as the Louisiana Fifth Circuit Court of Appeal recently explained, the judge or jury’s interpretation of that game is difficult to reverse.   

On October 20, 2011, Rorilyn Prejeant was rear ended by Duane Smith on an expressway in Westwego, Louisiana.  Ms. Prejeant claimed that while she was sitting at a red light, Mr. Smith’s truck was sitting behind her.  When the light turned green, the car in front of Ms. Prejeant failed to proceed, blocking Ms. Prejeant’s car.  Ms. Prejeant claimed she saw Mr. Smith’s truck begin to move, honked her horn, yet Mr. Smith failed to stop thus hitting her.  Mr. Smith’s account was rather different.  He claimed that when the light turned green he suddenly felt his truck go out of gear.  When he attempted to put the truck in gear and proceed, he realized he hit another car but claimed the car was not present when the light turned green.  Mr. Smith contended that Ms. Prejeant told him she merged into Mr. Smith’s lane right as the light turned green.  The police report indicated both that Ms. Prejeant changed lanes before Mr. Smith saw her vehicle but also that Mr. Smith saw Ms. Prejeant’s vehicle come to an abrupt stop before he was able to refrain from hitting her.  

Ms. Prejeant did not seek medical attention at the time of the accident, however later sought medical care when she experienced headaches, back, neck and shoulder pain.  In January 2012, Ms. Prejeant spoke with an attorney concerning the accident and subsequently started frequent visits to the chiropractor for her injuries.  Ms. Prejeant also had an MRI conducted of her spine for injuries related to the accident. Ms. Prejeant filed a lawsuit against Mr. Smith for damages to her vehicle and medical expenses. After a trial before the Judicial District Court for the Parish of Jefferson, the judge concluded that Mr. Smith was liable to the Plaintiff in the amount of $16,000.00 for general damages and $5,105.00 in special damages for the medical expenses. Mr. Smith appealed to the Fifth Circuit claiming the District Court erred in disregarding the physical evidence of vehicle damage and in relying on Ms. Prejeant’s testimony.  

crash-car-1180834-1024x827Sometimes judges and juries make mistakes that prevent injured parties from obtaining the relief they deserve. Both judges and juries can be swayed by arguments and make rulings that seem contrary to the weight of the evidence presented at trial. In such a situation, it is important to have an excellent attorney on your side to assert your rights and present you with proper avenues of appeal. Kimberly Guidry found herself in just this position after the trial court awarded her no damages for injuries she sustained in a car accident in Erath, Louisiana.

Ms. Guidry was injured in a three car accident while a passenger in her brother’s pickup truck. The accident occurred when Karl Creduer ran a red light, striking another person’s vehicle. This other vehicle then crashed into a Ms. Guidry’s brother’s pickup truck. Ms. Guidry and her brother were both injured in the accident. Ms. Guidry was taken to the hospital in an ambulance due to complaints of pain in her back and knee. At the hospital, doctors took X-rays of Ms. Guidry, placed her in a cervical collar, and gave her prescription medicine for her injuries.

After leaving the hospital, Ms. Guidry saw three separate doctors in hopes of alleviating the pain caused by the accident. Through these doctor visits, it was determined that Ms. Guidry had pre-existing arthritis and pre-existing degenerative conditions in her spine and knee. These ailments arose prior to the accident. According to the doctors, the accident aggravated these ailments.

to-gym-1445095-1024x766Many people own a gym membership but upwards of 80% of those people fail to regularly go to the gym. If you find yourself infrequently inside of a gym, it can seem like a strange place. There are many different machines and sometimes it isn’t so clear how to properly use those machines. Indeed, misuse of gym equipment can result in serious injury. So what sort of duty does a gym owe to its members? The following case may help shed some light on this issue.

Thomas Nearhood was injured while working out on a Precor Smith Squat Machine at Anytime Fitness in Pineville, Louisiana. Nearhood filed a lawsuit to recover damages for his injuries and one of the defendants was Fitness Partners, the owner of Anytime Fitness. At issue before the Trial Court was whether Nearhood was a “sophisticated user” of the squat machine. If Nearhood was a sophisticated user, the gym operators had no duty to inform or warn Nearhood about using the machine. But what exactly constitutes a sophisticated user?

Nearhood argued that Fitness Partners was negligent because it failed to properly instruct him on how to use the squat machine. Fitness Partners responded with a summary judgment motion arguing that it had breached no duty, there was no genuine issue of material fact, and judgment for Fitness Partners was proper as a matter of law. The Trial Court granted Fitness Partners’ motion and Nearhood appealed to the Louisiana Third Circuit Court of Appeal. The Court of Appeal affirmed the Trial Court’s decision.     

chest-xray-1526779-1-1024x1004Medical malpractice can be a nuanced area of the law and good lawyers rely on the facts of a case coupled with their knowledge of the law and expert opinions to adequately perform their jobs. The following case illustrates that a competent legal team can make the most out of a tragic situation by obtaining some measure of justice and relief for a victim via compensation from the responsible parties.

This case centers on Pete Bush, an elderly man with heart problems who had a pacemaker placed in his chest. The hospital staff in Richmond, Virginia explained to Pete’s wife, Dina, how to properly use and interpret the alerts from the device. One month after the device was installed inside Pete, the manufacturer of the device issued an “Urgent Correction Notice” (the “Notice”).

The Notice stated that a particular pump in the device could wear out and if not replaced could result in death. The Notice further stated that damage to the device would not be visible, but could be detected by “transient alarms.” Although a nurse initially instructed the Bushes about the various alarms and warnings and the proper response to each, the hospital never informed the Bushes about the Notice.

baseball-in-the-grass-1557579-1024x683Peanuts and cracker jacks are two cornerstones of the game of baseball.  However, surgery is not. Yet, when one little leaguer got struck by a baseball during practice, the league’s insurer tried to get out of picking up some of his medical bills. The Louisiana Third Circuit Court of Appeal, however, was not going to let the insurance company off so easily.  

On June 1, 2010, nine-year-old Michael Folley was hit in the mouth by an errant baseball during his baseball team’s practice. On May 20, 2011, Tonya Csaszar, on behalf of her son Michael, brought suit against Nationwide Insurance, alleging that Michael would require future medical treatments and surgeries as he got older. Nationwide, having paid some medical expenses, denied further coverage based on a provision of the policy limiting coverage to medical expenses incurred within three years of the accident.  Nationwide moved for summary judgment arguing coverage for Michael under the policy had terminated.  The Judicial District Court for the Parish of LaFayette denied the motion and Nationwide appealed.  

The parties disputed when the injuries were “incurred” and thus subject to coverage. Nationwide argued that there was no ambiguity in the meaning of “incurred” in the language of the policy and any medical treatment beyond the three-year cap was not subject to coverage. The Plaintiffs contested however that due to Michael’s young age, he would need additional medical treatment to accommodate physical changes as he grew.  Nationwide’s policy did not define the word “incur.”  

historical-medical-devices-3-1566087-1024x678Upon entering a facility for medical treatment, we all hope that we will be treated properly. However, what happens when a medical or health care professional deviates from the profession’s standards? What happens if there is a mistake in the diagnosis or treatment? Such victims certainly have an opportunity to seek redress however sometimes a jury verdict can prove disappointing.  This case out of Jefferson Parish demonstrates what happens when a trial court jury does not get the proper instructions necessary for deciding a complex medical malpractice claim in Louisiana.

Doris Greathouse was admitted to East Jefferson General Hospital on June 2, 2008 for elective heart surgery. Shortly after Dr. Cougle and CRNA Wilkinson intubated Mrs. Greathouse, she suffered cardiac arrest and her brain was deprived of oxygen. Mrs. Greathouse was transferred to the Intensive Care Unit with fatal brain damage until her family removed her life support. Mrs. Greathouse’s children then filed a wrongful death and survival action against Dr. Cougle and Ms. Wilkinson alleging that they committed medical malpractice resulting in their mother’s injuries and death.   

Pursuant to La. R.S. 40:1299.47(B)(1)(a)(i), health care providers in Louisiana cannot be sued for medical malpractice under the the Medical Malpractice Act (“MMA”) unless the plaintiff submits a complaint to a Medical Review Panel (“Panel”), composed of three healthcare providers and an attorney. The Panel’s sole duty is to express its expert opinion as to whether the evidence supports the conclusion that the defendants complied with the standards of care. See La. R.S. 40:1299.47(G). The Panel may not render an opinion on any disputed issue of material fact that does not require its medical expertise. See La. R.S. 40:1299.47(H).