Articles Posted in Negligence

tenis-1571373-1920x1440-1024x768When bringing a personal injury lawsuit a plaintiff must prove that the defendant in the lawsuit caused the injury. Often, when an injury involves two parties, the question of who caused the injury has a relatively straightforward answer. However, problems arise when the circumstances surrounding the injury involve multiple parties. A recent case out of the Louisiana First Circuit Court of Appeal illustrates the complexity of proving who caused an injury when multiple parties are involved.

Plaintiff William Bourg, an employee of Shamrock Management LLC (“Shamrock”), a Houma, Louisiana company, was injured while helping move an aluminum generator cover. The cover, which weighed 2800 pounds, was delivered to Shamrock’s shop by Cajun Cutters, Inc (“Cajun Cutters”). Mr. Bourg and a Cajun Cutter’s employee, Russell Felio, attempted to move the generator cover into Shamrock’s shop. To facilitate the delivery of the generator cover, Mr. Felio decided to use a large forklift that he was unauthorized to use. While using the forklift, Mr. Felio accidentally flipped the generator cover on its side, which fell on Mr. Bourg’s left foot, crushing it. The injury required Mr. Bourg to undergo two surgeries.

Mr. Bourg sued both Cajun Cutters and Mr. Felio for his foot injury. In a personal injury lawsuit, the jury is required to determine who is at fault for the plaintiff’s injury and allocate a percentage of fault onto each party member, including the plaintiff. In Mr. Bourg’s case, the jury decided that Mr. Bourg and Shamrock were 90% at fault for the accident and that Cajun Cutters and Mr. Felio were 10% at fault. Mr. Bourg filed a motion for a judgment notwithstanding the verdict (“JNOV”). A JNOV is a procedural device where the trial court may correct a jury verdict by modifying the jury’s findings of fault or damages, or both. La. C.C.P. art. 1811 (2016). The trial court granted the JNOV and reallocated fault 50% to Bourg and Shamrock and 50% to Cajun Cutters and Mr. Felio. Cajun Cutters and Mr. Felio appealed the trial court’s decision.

rifle-scope-1-1576601-1-1024x683What do injured parties do when products are defective and unreasonably damaged? In Louisiana, injured parties may file lawsuits against a manufacturer for damages caused by his products. The following case out of the Western District of Louisiana describes the Louisiana Products Liability Act (“LPLA”).

In mid-2011, Toby Arant purchased two 1” ratchet straps at a Wal-Mart store, manufactured by Tahsin Industrial, Corp., USA (“Tahsin”). On September 9, 2012, Mr. Arant used the straps to secure a tree for hunting. Mr. Arant was seriously injured after falling 20 feet to the ground because the tree straps failed when he climbed onto the tree stand.

Mr. Arant filed a lawsuit in Louisiana state court against Wal-Mart Stores, Inc. (“Wal-Mart”) and Tahsin under the LPLA, alleging that the straps were defective and unreasonably dangerous. More specifically, he claimed that the straps were defective in construction and had an inadequate warning. Wal-Mart and Tahsin removed the case to federal court and filed a motion for a summary judgment. A motion for summary judgment is properly granted if there is no genuine issue of material fact. The motion was granted and Mr. Arant appealed the district court’s dismissal of his products liability suit to the U.S. Fifth Circuit Court of Appeal.

oil-refinery-1239476-1024x683In the midst of a very active hurricane season, it is important to remember that Louisiana is no stranger to this type of inevitable damage. However, the dangers involved in disaster clean-up efforts are often forgotten, and far too often people who aid in these efforts aren’t compensated fairly when things turn awry. A recent lawsuit helped linemen who faced similar dangers recover for injuries they sustained during a disaster clean-up.  

Due to a severe storm in 2006, CITGO Petroleum Corporation’s Calcasieu Parish Refinery stormwater and storage system overflowed, resulting in a major oil spill. Experts described the spill as being “catastrophic.”  The storm caused 21 million gallons of wastewater to escape, including 17 million gallons of contaminated wastewater and 4.2 million gallons of slop oil. The escaping hazardous waste spilled into surrounding levees and dikes and contaminated over 100 miles of shoreline along the Calcasieu River and required several months of clean up. Employees of Ron Williams Construction that worked at CITGO’s refinery filed a lawsuit for chemical exposure.

Prior to this lawsuit, several other employees of Ron Williams Construction filed a lawsuit against CITGO (for ease of reference, this prior case will be referred to as Arabie 1) and received a favorable verdict. Arabie v. CITGO Petroleum Corp., 89 So.3d 307 (La. 2012). In Arabie 1, the Ron Williams Construction employees received damages, but after several appeals, the Louisiana Supreme Court reversed the district court’s award of $30,000 in punitive damages to each employee. This still resulted in a favorable verdict for the employees, but they were awarded less in damages.  

the-flooded-clay-quarry-1636282-1024x683Lawsuits often appear to be complicated and complex, but what many people don’t know is that the outcome of a lawsuit can often be determined by a simple matter of logistics. The who, what, when, where and why of a situation can make the difference between winning and losing a case. For instance, a simple matter of jurisdiction was the deciding factor in a case brought by a South Louisiana man and his wife.

Mr. Leger was injured on a job site at Peoples Moss Gin in Palmetto Louisiana when a conveyor belt ripped apart and struck him. Leger was employed by Rice Belt Distributors, Inc., a company that was hired to install an eighty-foot vertical conveyor belt in a grain elevator. The conveyor belt which was manufactured by International Conveyors Limited, (ICL) an Indian company, and sold to D.E. Shipp Belting Company (Shipp Belting) using ICL America, a wholesaler of conveyor belts, as an intermediary in the transaction. Mr. Leger and his wife, Gwen Leger, brought a personal injury suit against ICL America, Shipp Belting, International Conveyors, and Brown Cranes whose crane and crane operator were handling the conveyor belt at the time of the accident.

ICL raised a declinatory exception of personal jurisdiction, which allows a party to claim that they are not subject to the court’s power. La.C.C.P. art. 925(A)(5). The trial court granted this exception. The Legers, ICL America, and Burlington Insurance all appealed the decision.

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.