Articles Posted in Negligence

beauty-salon-4-1570299-1024x1015When going to the nail salon, the last thing anyone thinks about is falling and getting seriously injured. Slip and fall accidents happen all the time, and it is important to gather as much evidence as possible and retain a good personal injury attorney in order to build the best possible case for yourself. The courts do not look favorably on those who make a claim and have very little evidence to back it up, as Pamela Burnett (“Ms. Burnett”) discovered when trying to win damages from the Lucky Nails salon.

On August 20, 2012, Ms. Burnett went to the Lucky Nails salon in Baton Rouge, Louisiana to get a standard nail polish change. All was going well at the salon, but as she was walking toward the pedicure chairs after choosing a polish color, she slipped and hit her head on the foot rest of one of the chairs. Ms. Burnett filed a lawsuit against the nail salon and its insurer, State Farm Insurance Company. Ms. Burnett alleged that the nail salon was negligent in maintaining the property and the floor of the salon. The defendants filed a motion for summary judgment because Ms. Burnett could not prove that there was a foreign substance or hazardous condition on the floor, that the nail salon created or had actual or constructive notice of the hazard, and that the salon failed to exercise reasonable care. The Trial Court found the evidence did not demonstrate that there was anything obvious on the floor. Ms. Burnett testified that the floor felt slippery, but was unable to identify what kind of substance was on the floor. The Trial Court granted the defendants’ motion for summary judgment on September 9, 2014, and dismissed the suit with prejudice. Ms. Burnett appealed this decision to the Louisiana First Circuit Court of Appeal.

On appeal, the First Circuit addressed Ms. Burnett’s argument that the Trial Court failed to look at the most critical evidence of the case. This evidence was a video recording of Ms. Burnett’s fall at the nail salon. The Trial Court stated that they were unable to see the video, however, they had plenty of still photographs taken directly from the video recording. The photographs clearly depicted the floor of the salon and they showed no substance or liquid on the floor. The First Circuit was able to view the video but found that it did not matter that the Trial Court was unable to view it because it did not present any new conclusions to reverse the summary judgment decision.

trailerpark-1-1559039-1024x820In any personal injury lawsuit, it is absolutely critical that the plaintiff documents his or her injuries and gather evidence in support of legal claims. In addition to establishing that the defendant breached a duty of care, personal injury plaintiffs must also prove – through medical testimony and documentation – that it was more probable than not that the accident at issue caused their injuries. See Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757 (La. 1995). This is particularly complicated when the plaintiff is already receiving care for preexisting injuries, as the law holds that defendants are not liable for damages caused by separate, independent, or intervening causes or injury. A recent case of the Louisiana First Circuit Court of Appeal is revealing.  In this case, the Court of Appeal upheld a jury’s finding of no causation despite unconverted testimony by two expert witnesses.

On July 18, 2011, Wendy Richardson was returning to her home in Powers Trailer Park in Ascension Parish, Louisiana when her vehicle’s right rear tire fell into a hole. The hole developed suddenly in the gravel lining the entrance to the trailer park from Airline Highway. Ms. Richardson filed a lawsuit against the owner of the trailer park, Homewood Holdings, L.L.C. and its insurer, Scottsdale Insurance Company. Ms. Richardson argued that the hole caused her vehicle to unexpectedly stop, causing her serious injuries that necessitated undergoing spinal surgery.

At trial, Ms. Richardson presented the testimony of two treating physicians in addition to her own testimony. Ms. Richardson testified that she did not immediately seek medical attention for her injuries because she was already being administered a narcotic for serious injuries suffered in a domestic violence incident, and her contract prohibited her from receiving medication from any other source. She waited until her next scheduled appointment with her pain management specialist, Dr. Thomas Cockerham.

abandoned-hospital-1-1227909-1-1024x683Families depend on nursing home staff to adequately care for loved ones. When loved ones suffer due to the negligence of nursing home staff, a medical malpractice suit can arise.

Recently, in Johnson v. CLVD, Inc D/B/A Green Meadow, the beginning injury arose on November 11, 2008, when Mr. Johnson’s catheter was removed, possibly by himself. The nursing staff left the catheter out due to a hospital policy that prohibited them from replacing it. On November 15, Mr. Johnson was unresponsive and taken to the hospital, where a catheter was reinserted. As a result, Mr. Johnson had more than three times the normal amount of urine in his system causing him to develop a urinary tract infection. This infection progressed into severe sepsis, septic shock, and several secondary infections. On December 15, he was admitted to Minden Medical Center with a fever, UTI, altered mental status, and worsening renal insufficiency. His condition worsened, and he died on December 25, 2008.

Mr. Johnson’s family filed a malpractice complaint against the hospital and a medical panel of three doctors reviewed it. Two of the doctors concluded that, by failing to reinsert the catheter or consult with Mr. Johnson’s treating physician, the nursing home staff failed to provide Mr. Johnson with appropriate care. This lack of care led to a chain of events resulting in Mr. Johnson’s death.  The third-panel member disagreed based on Mr. Johnson’s age and medical problems.

road-on-rear-view-mirror-1362231-1024x768When a driver is rear-ended, there is generally a presumption the rear driver is negligent. This is based on the principle that the following driver must maintain a prudent distance from the vehicle in front of them and concentrate on their speed as well as the traffic and general condition of the roadway. La. R.S. 32:81(A).This presumption of negligence when a driver rear-ends another can be overcome by showing that the driver in front was driving unpredictably and caused a sudden emergency which could not be anticipated by the rear driver. Cheairs v. State ex rel. Dept. of Transp. & Dev., 861 So.2d 536 (La. 2003).

In a recent case, the Louisiana Second Circuit Court of Appeals considered when the presumption could be overcome. This case involved a three-car accident in West Monroe, Louisiana. The accident occurred when Norma C. Alvarez merged onto the Interstate 20 after exiting the on-ramp. According to Officer Jacob May, who witnessed the accident, Alvarez wasn’t traveling as quickly as the other vehicles on the interstate and appeared “almost stopped” in the lane. Alvarez was rear-ended by a driver in the left lane of the interstate, Hazel Lee, and then Barbara Jewitt, the plaintiff, rear-ended Lee. Officer May believed that Alvarez’s slow speed caused the accident. Alvarez did not have a driver’s license and had been driving without a license for 15 years. At trial, Jewitt testified that at the time of the accident she was checking her mirrors as she was about to change lanes and when she looked ahead the car in front of her had stopped and she only had a few seconds to stop. Jewitt stated that it was impossible to avoid hitting the car in front of her.

The Trial Court found that Alvarez was 100% at fault for the damage to Jewitt’s car and Jewitt’s injuries, finding that there was nothing the plaintiff could do to avoid the accident. Alvarez appealed the finding and argued on appeal that the presumption of negligence against rear-ending drivers applies and that the accident only occurred because Lee and Jewitt were either not paying attention or were speeding.

greengrocer-1241104-1024x768Have you ever been involved in a slip and fall accident inside a store resulting from water being on the floor? Were you injured as a result? If so, who would you think was at fault? How would you receive just compensation? In a recent case, the Louisiana Second Circuit Court of Appeal discusses the necessary factors a plaintiff must prove in order to show that a merchant – such as a grocery store, clothing store, or even the owner of a food truck – was responsible for the injuries sustained resulting from a slip and fall accident.

This lawsuit originated from a slip and fall accident occurring on December 16, 2012, when Donna Ferlicca exited Brookshire Grocery Company’s store in Monroe, Louisiana. Upon entering the store, Ms. Ferlicca slipped and fell. There was allegedly water on the floor from the rainfall outside. Ms. Ferlicca suffered a fractured left arm resulting from her fall. On January 31, 2013, Ms. Ferlicca filed a lawsuit against Brookshire her damages. A bench trial proceeded.  A bench trial is a trial where the finder of fact is a judge or panel of judges rather than a jury.

The Trial Court ruled in favor of Ms. Ferlicca and awarded her general damages of $21,000.00 and special damages of $4,921.12. General damages are damages that do not have a fixed amount meaning the amount can vary based on any level of pain and suffering, mental anguish, or loss of enjoyment the plaintiff has suffered. Special damages are those damages that usually have a fixed market value such as lost wages, medical bills, or future medical expenses. These type of damages (general and special damages) are called Compensatory Damages. Compensatory damages are designed to place the plaintiff back into the position she would have been if she had not been injured.  The Trial Court ruled in favor of Ms. Ferlicca holding that 90% of fault belonged to Brookshire and 10% of fault belonged to Ms. Ferlicca herself. However, Brookshire filed an appeal to dispute the ruling of the Trial Court.  Brookshire argued that the Trial Court failed to properly apply slip and fall law in this case.

pills-on-table-1512519-1024x683In cases involving negligence on behalf of medical personnel, expert testimony is often needed to establish the standard of care that was breached by the party being sued. An expert’s testimony will be admitted based on its relevance to the facts at hand as well as the experts level of knowledge regarding the specific topic. Recently, the First Circuit Court of Appeal had to determine whether or not expert testimony was properly admitted and whether or not from that testimony alone the court could find by a preponderance of the evidence for the Plaintiff. These issues arise in the context of a lawsuit brought by Robert and Ruth McGregor individually and on behalf of the deceased Donald McGregor against Hospice Care of Louisiana in Baton Rouge for negligence in their failure to fill a partial prescription for the deceased.

The deceased Donald McGregor had terminal metastatic prostate cancer and was being treated by a doctor from 1997 till his death July 21, 2002. In April of 2002, Mr. McGregor was enrolled as a patient of Hospice of Baton Rouge (Hospice) when he was no longer able to visit his previous doctor’s office. From that point on his previous doctor relied on reports from the Hospice Nurses to make determinations regarding the prescription of pain medication to Mr. McGregor. in July of 2002, his doctor prescribed various pain medications for long and short term pain. In July of 2002, Mr. McGregor’s doctor wrote a partial fill prescription for 40 morphine suppositories 20 of which were to be filled on Friday and the other 20 to be filled the following Monday. McGregor’s doctor, however, instructed that if the pain worsened the nurses were to contact him or his partner and the on-call physician for the weekend in order to have the other 20 suppositories filled early.

On Sunday of the same weekend Robert McGregor, Mr. McGregor’s son called the on-call Hospice nurse in hysterics requesting that the remaining suppositories be delivered immediately while threatening the nurse’s life if she showed up without them. The nurse then informed Robert that in order for that to happen she would need to visit the home and assess Mr. McGregor’s condition before contacting the on-call physician about releasing the remaining suppositories to which Robert responded with more threats and a refusal of the assessment. The Nurse then informed her supervisors of the situation and they advised her to let Robert know that Mr. McGregor from then on was released from Hospice care. Robert still in hysterics then called the on call doctor directly regarding the situation of his father’s discharge from Hospice care to which the on call doctor agreed with Hospice’s decision because it would be best for Mr. McGregor to be treated directly by her in the hospital. Later that day Mr. McGregor was brought to the hospital where he passed away that evening.

hospital-1236398-1024x915Imagine that your mother, a friend, or someone else you love dearly suffers from numerous health problems. In a terrible twist of fate, your loved one falls, worsening their current condition and making life more painful and difficult than it already is. To top it all off, what would already be considered a trying process is exacerbated because you feel like the doctors who are caring for your loved one aren’t listening to your input or concerns. After many visits to the emergency room and overnight hospital stays, your loved one passes away. Despite the health conditions before the fall, you feel like something wrong occurred during your loved one’s treatment and someone should be held responsible. This was exactly the scenario for the loved ones of Ms. Mary LeBoeuf. Five individuals, including her son and long-time partner, filed a lawsuit against her doctor, the hospital, and the orthopedic clinic on her behalf.

Ms. Mary LeBoeuf was a sixty-five-year-old woman who suffered from many health conditions including diabetes mellitus, peripheral vascular disease, cardiomyopathy, coronary artery disease, atrial fibrillation, end-stage renal failures, osteopenia, hypertension, and chronic obstructive pulmonary disease. Despite her poor health, Ms. LeBoeuf continued to smoke one to two packs of cigarettes a day.

On October 11, 2008, Ms. LeBoeuf fell and fractured her leg, but because of her preexisting health conditions, surgery was not an option. Dr. Casey, the orthopedic surgeon treating Ms. LeBoeuf, determined a cast would be the best treatment option for her. Nine days after she was released from the hospital, Ms. LeBoeuf returned with purple toes and a blister on her left foot. Her family was insistent on the cast being permanently removed. Dr. LaSalle, a fellow orthopedic surgeon, removed the cast to examine the area for more blisters, took more x-rays, and reapplied a new cast of which her family disapproved.

burning-ambulance-1398173-1024x681We’ve all been in the situation where we’re sitting at a red light or approaching an intersection and all of a sudden we hear sirens and see flashing lights. Everyone knows to stop and yield to the oncoming ambulance. Sometimes, however, a driver might not yield for whatever reason. This is exactly what happened in this case, which involves an EMT who was injured on the job while riding in an ambulance.

Two volunteer firefighters with the Washington Parish Fire Department (WPFD) responded to a call in Varnado, Louisiana. When they arrived at the scene, they found a man lying on the ground and proceeded to provide CPR until an ambulance arrived. Once the ambulance arrived, the two firefighters loaded the man into the back of the ambulance and continued to tend to him, as is customary. The Defendant in the case agreed to drive the truck.

While en route to the hospital, the ambulance was struck in the right rear by a blue Honda at the intersection of Highway 21 and La. Highway 10. The ambulance slid and collided into another vehicle. The Plaintiff, who had been sitting in the back of the ambulance without a seatbelt, sustained injuries from being thrown around due to the force of the crash.

parking-lot-d-1234500-1024x587Parents love their children very much. It is always a difficult experience to involve a child in a lawsuit. Such an emotionally difficult experience can be soothed by having the best attorney possible. Losing a lawsuit on behalf of one’s child is a traumatic experience, especially after an accident. This is exactly what happened in a recent case of the Louisiana First Circuit Court of Appeal.

In January 2011, the Gaspards were leaving a Winn-Dixie store in Covington, Louisiana walking with their son in a baby carrier through a marked pedestrian zone. Suddenly, they were struck by a vehicle. In May 2011, they filed a lawsuit on behalf of their son against the driver of the vehicle, Anna Lewis; Safeway Insurance Company, the liability company that insured Lewis’ vehicle; and Geico General Insurance Company, the Gaspards’ uninsured or underinsured motorist carrier. Later, the Gaspards added Winn-Dixie Louisiana, Inc., Winn-Dixie Montgomery Leasing, LLC, and Gordon Konrad, the owner of the parking lot, and his insurers as additional defendants. The Gaspards alleged that these additional defendants had been negligent in the parking lot’s maintenance and design. The Gaspards further alleged that the Winn-Dixie and Konrad knew or should have known of the danger to pedestrians in the parking lot and had failed to take the appropriate measures to protect pedestrians.

In 2014, Winn-Dixie and Konrad filed a motion for summary judgment, arguing that the case should be thrown out because the Gaspards were unable to show a connection between the parking lot and their injury. Later, the Trial Court dismissed Gaspards’ claims were dismissed. The Gaspards appealed.

faculty-of-law-1492587-1024x768Are you being or have you been sued and simply can’t afford court costs and litigation due to financial instability? If this is your case, you can file an affidavit of poverty also known as obtaining pauper status pursuant to La. C.C.P. art. 5183. By applying and obtaining this status, the court will permit you to continue litigation without requiring any payments before or throughout the litigation process. If in the course of litigation, the opposing side suspects that you are not actually eligible to obtain pauper status, they may request a hearing and provide evidence to show that you lack the required eligibility criteria (1/125 of the poverty level). At issue in an appeal from the Thirtieth Judicial District Court, the Third Circuit Court of Appeal entertained the discussion of whether or not an unconditional tender of a judgment can be used to revoke a pauper status.

The issue itself arose out of a claim made by plaintiffs Tammy and Tommy Dubois regarding medical expenses for an injury that was caused due to the defendants’ (Scottsdale Insurance Company and SMI Group) negligence. The plaintiffs prior to the court proceedings had gone through the correct procedure as outlined by La. C.C.P. art. 5183 and were granted pauper status.

The District Court ruled in favor of the plaintiffs on their negligence claims and the plaintiffs were awarded $211K. Unhappy with the amount awarded to them, the plaintiffs filed an appeal of the judgment. In response to the appeal, the defendants filed a motion to have the plaintiffs’ pauper status revoked claiming they had been “unconditionally tendered” payment of both the judgment and of the interest on the judgment in two separate checks. The plaintiff’s counsel refused to cash the checks, but the defendant argued that the money was readily available to them, therefore, their pauper status should be revoked because they did, in fact, have access to a sufficient amount of money.