Articles Posted in Negligence

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architect-architecture-blueprint-build-271667-1024x678Sometimes, whether your case takes place in federal court or state court may be out of your hands entirely. Other times, it may be possible for the case to take place in either court. In such situations, it is important to understand possible differences and advantages between state and federal court. When one party wants the case in federal court and the other wants it in state court, things can get tricky, as a 2017 case from the United States Court of Appeals for the Fifth Circuit shows.

Plaintiff Howard Zeringue claimed he was exposed to asbestos in 1952 when he was deployed with the United States Navy. Though he did not provide a time period, he also alleged that he was exposed to asbestos when he worked a job selling insurance in Avondale Shipyard. He filed a lawsuit against Crane Company (“Crane”) and twenty others in state court in Louisiana. Zeringue alleged all were liable for asbestos-causing injuries based on claims of strict liability, negligence, and failure to warn; but specifically stated that Crane and twelve out of the twenty-one defendants were responsible for handling and sending the asbestos-containing products to the places he was exposed.

Crane removed the case to the Eastern District of Louisiana in accordance with the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). Crane claimed that the products it provided for or made for the Navy were subject to the Navy’s requirements and federal officers had discretion about whether the product had asbestos and if it needed a warning label. With its removal petition, Crane supplied affidavits and sample military specifications to show that all asbestos-containing products could not be used in Navy ships without the Navy Machinery Inspectors determining they met the specifications.

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close-up-photo-of-vehicle-engine-1409999-731x1024When a party to a lawsuit waits too long to respond to a lawsuit or flat out declines to respond, courts have the ability to resolve the case with a default judgment. This default judgment resolves the case and the non-responding party must live with the court’s decision. While not ideal, it is a needed mechanism for times when a party does not comply with the rules. With the help of an excellent attorney an injured driver won his lawsuit when a Leesville vehicle repair shop failed to properly respond to his lawsuit.

Dexton Bryant purchased the services of Xtreme Machines to install a lift kit on his pickup truck. Shortly after the lift kit was installed, Mr. Bryant was driving when the front left wheel of his truck completely came off. The lack of wheel caused Mr. Bryant’s truck to swerve off of the road and into a group of trees. Mr. Bryant blamed Xtreme for cutting off the lug bolts on the wheel and brought a negligence lawsuit to recover the damages he sustained to his body and vehicle.

Mr. Bryant won the lawsuit by a default judgment in the Trial Court. The default judgment win was because Xtreme did not respond to the lawsuit in time. In total, he was awarded $11,857.50 for his medical costs, $7,900 for the damage to his vehicle, and $50,000 for his injuries, pain, and suffering. Xtreme responded to the loss at trial with an appeal. In the appeal, Xtreme claimed the Trial Court made an error by determining that Xtreme was negligent. This claim was based on the argument that improper evidence of negligence as well as the costs was admitted by the Trial Court.

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53-819x1024When driving at night, it is always important to make sure your vehicle lights are working, not just so you can see, but also so others can see you. Not only can this simple task avoid an accident, but failure to do so can get you in trouble with the law.

One night in March 2014, Mr. Roland Lege was driving on Highway 91 near Garden City, Louisiana, when he got into an accident with a tractor-trailer driven by Mr. Milton Livas. Mr. Lege claimed that the trailer was swaying back and forth from the right lane to the left and that the brake lights were not working, preventing Mr. Lege from seeing it properly. The Sixteenth Judicial District Court in the Parish of St. Mary, Louisiana heard the case that followed from the accident.

According to Louisiana law, trailers like the one Mr. Livas was driving must have lighted tail lamps displayed when the natural light is insufficient for others to see the trailer from five hundred feet. La. R.S. 32:301(A)(1) & (2). Mr. Lege, on the other hand, had a duty to not follow another motor vehicle more closely than is reasonable. La. R.S. 32:81(A). In rear-ending the trailer, there is a presumption that Mr. Lege was negligently driving too closely to it; however, he may rebut this presumption by proving he was driving at a safe distance or by showing that Mr. Livas was driving negligently and created a hazard that could not be reasonably avoided.

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43-Email-1024x647When one is injured due to the negligence of another, it is reasonable to expect an award of damages. However, the plaintiff must first prove all the elements of negligence. Not only must a plaintiff prove the defendant had a duty of care which the defendant violated, but the plaintiff must also offer evidence that shows the defendant’s conduct was the factual and legal cause of the plaintiff’s injuries. For many cases, the causal connections can be difficult to prove and requires expert testimony. For these reasons, a good lawyer is essential for the successful outcome of a negligence suit.

Lloyd Richard was injured in Louisiana during an arrest for criminal charges when the police cruiser he was in backed into a ditch. Richard filed a lawsuit to seek recovery for his injuries. Richard testified that he was thrown forward into the bars of the vehicle, injuring his back and neck. Richard claims he told each officer he came in contact with that he was in need of medical attention. However, the officers that conducted Richards arrest testified otherwise.

The arresting officer testified that while he did back into a ditch there was no “forward and backward” or violent motions. He testified that he was driving “very slow” as he backed up from the street and entered the ditch. Furthermore, he contradicted Richard’s testimony claiming Richard did not communicate he had sustained neck and back injuries. Though Richard had a scratch underneath his eye, he offered conflicting testimony as to how he received the scratch.

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image-for-post-70-from-email-5-14-19-1024x679The Louisiana Supreme Court has recognized that awarding damages for medical expenses without awarding pain and suffering damages, though seemingly inconsistent, is not invalid on its face. See Wainwright v. Fontenot, 774 So.2d 70 (La. 2000). Appellate courts afford juries great deference and disturb verdicts only when they are clearly and objectively unsupported by the evidence in the trial record. One such example of this can be seen in an auto accident case involving a “serial plaintiff.”

Joseph Wiltz was rear-ended in stop-and-go traffic by Maya Welch. Wiltz filed a petition in state court against Welch and her insurance company, State Farm, claiming he was injured in the accident. He sought damages for past and future medical expenses, lost wages, loss of enjoyment of life, and pain and suffering. The trial moved to the U.S. District Court for the Middle District of Louisiana by the defendants and the case proceeded to trial.

The defendants admitted Welch’s fault in the accident, leaving the main issue whether Welch’s negligence was the cause of Wiltz’s injuries. Discovery revealed that Wiltz was a “serial plaintiff” with pre-existing injuries that he failed to disclose to the doctors that treated him following the collision. Between 1991 and 2011, Wiltz had four different accidents and incidents that resulted in injuries to his neck, back, and shoulders. Furthermore, Wiltz told doctors that he’d never experienced back or neck pain previously and answered discovery in a similarly untruthful and incomplete manner. Even with the information concerning the pre-existing injuries, the jury still returned a verdict in favor of Wiltz; however, the jury awarded him compensation for past medical expenses only. Wiltz filed a motion for a new trial or an amendment to the judgment, contending the verdict amounted to an abuse of discretion by the jury. The district court denied the motion because Wiltz failed to prove he endured any compensable pain and suffering.

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image-for-post-68-from-email-5-14-19-1024x683What happens when a person is injured due to a company’s negligence and the company is based outside of the United States? The plaintiff generally must file a lawsuit in federal court, but there are certain jurisdictional requirements that have to be met. A plaintiff’s ability to file a lawsuit against an international company in a U.S. district court depends on how much “contact” the company has with the United States.

Danny Patterson, a U.S. citizen, was working aboard the Luxembourg-flagged vessel M/V Simon Steven off the coast of Russia when he was struck by a cable and sustained injuries. He sued his employer and the several other companies involved in the project, including Aker Subsea (“Aker”) and FMC Kongsberg (“FMC”), for damages in the U.S. District Court for the Eastern District of Louisiana. Both Aker and FMC moved to dismiss the petition for lack of personal jurisdiction, and after jurisdiction discovery, the district court found that jurisdiction over the defendants did not exist and granted the motions to dismiss. Patterson then sought to have the district court’s decision certified as final so he could appeal to the U.S. Court of Appeals for the Fifth Circuit. See Fed. R. Civ. P. 54(b). Meanwhile, FMC was dismissed from the case through a separate motion which went unopposed by Patterson.

Before the Fifth Circuit, Patterson argued that Aker had sufficient contacts with the United States to establish general personal jurisdiction. See Fed. R. Civ. P. 4(k)(2). He pointed to the fact that Aker had entered into multiple secondment agreements involving a U.S. location. Secondment agreements are used when an employee is temporarily assigned to work for another organization, or a different part of the organization, by their employer. In this case, Aker’s agreements spanned a three-year period of time, concerning employees working in Houston, Texas. Patterson argued that the employees assigned in Houston for a three year period established sufficient contacts for federal jurisdiction. 

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image-for-post-50-from-email-5-22-19We often hear that insurance companies are stingy and heartless. Though some descriptions of insurance companies are exaggerated, it is nevertheless true that insurance companies are judicious in paying out claims. In some cases, an insurance company will attempt to avoid payment at almost any cost.  

Shawn Verges, a special education teacher at Fannie C. Williams Charter School in New Orleans, Louisiana, suffered injuries when she was repeatedly slapped and pushed to the floor by one of her students during class. Following the incident, Verges sent a text message to the school principal’s administrative assistant describing the attack and requesting an accident report. Verges made several more requests for an accident report, but the school never created one. Within a week, Verges began to experience back, head, and neck pain, at which point she sought compensation from her employer’s workers’ compensation insurance carrier, AmTrust North America. AmTrust denied her claim on the basis that the school did not file an accident report or report the incident to AmTrust.

Verges then filed a disputed claim form against AmTrust. The trial court determined that Verges was entitled to workers’ compensation benefits because the evidence showed that she suffered an injury while in the course and scope of her employment. AmTrust appealed, arguing that Verges fabricated the incident, pointing to the fact that that Verges returned to work after the alleged injury to bolster their argument. 

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adult-bed-care-1498927-683x1024In personal injury cases, the plaintiff can only successfully prove the defendant’s negligence if a legal duty of care exists. Where there is no duty of care as a matter of law, a trial court can dismiss the lawsuit by summary judgment. So, when a defendant files a petition for summary judgment claiming that no duty exists, he is saying that even if all of the facts alleged by the plaintiff are true, there still is no duty of care owed by the defendant to the plaintiff. 

For several years in the late 1960s and early 1970s, Huey Chustz worked as an electrician’s helper at the Alma Plantation, a sugar mill in Point Coupee Parish, Louisiana. Chustz would routinely become covered in asbestos dust while working at the mill. He would return home in the evenings where his wife, Elizabeth Sutherland, would launder his clothing, a process which sent the dust into the air. In 2012, Sutherland was diagnosed with malignant pleural mesothelioma. 

Based on her diagnosis, Sutherland filed a claim for damages against Alma Plantation. She died in 2013, after which her children were substituted as Plaintiffs. Alma filed a motion for summary judgment, arguing that it did not owe Sutherland a duty because her injuries were not foreseeable. The trial court granted Alma’s motion for summary judgment, which the Plaintiffs appealed the Louisiana’s Fourth Circuit Court of Appeal.

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builders-building-construction-159306-1024x683The Louisiana statutory employer defense grants statutory employers the exclusive remedy protections of the Louisiana Workers’ Compensation Act. La. R.S. 23:1061. To become a statutory employer, a principal must enter into a written contract with a contractor for work to be performed in furtherance of the principal’s “trade, business, or occupation.” La. R.S. 23:1061 Moreover, where the principal pays compensation, it is entitled to indemnification from the contractor. La. R.S. 9:2780.1. Once an employer shows that they are a statutory employer under the law, they are entitled to immunity for tort liability that occurred in the course of the agreement with a contractor. The Louisiana Court of Appeal addressed the issue of whether a statute enacted in 2010 negates the statutory employer defense when a construction contract contains an indemnification clause or a hold harmless clause without paying for any of the cost of insurance. La. R.S. 9:2780.1.

In 2013, Christopher Michael Blanks (“Mr. Blanks”), was an employee of Wastewater Specialties, Inc. (“Wastewater”), the contractor, when he and some co-workers were assigned to perform repairs to a broiler at Entergy Gulf States Louisiana, LLC (“Entergy”), the statutory employer. Entergy issued a permit indicating the work area was safe for entry; however, they allegedly failed to inform Mr. Blanks and his co-workers of an unprotected open hole in a confined space where Mr. Blanks was working. Unfortunately, Mr. Blanks unknowingly stepped into the hole, causing him to fall approximately thirty (30) feet to the ground. He sustained serious injuries, and subsequently sued Entergy and its insurance.

Prior to the commencement of work at the Entergy facility, Wastewater and Entergy entered into an agreement that Entergy would be indemnified for personal injury claims brought by Wastewater employees. The trial court granted summary judgment on the grounds that the contract between Wastewater and Entergy was invalid and unenforceable because it provided an indemnity clause irrespective of fault. Additionally, the court noted Wastewater did not recover the cost of any insurance required under the contract.

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architecture-asian-bird-s-eye-view-186537-1024x768When you are injured in an accident, it may be tempting to file a lawsuit against anyone and everyone who might have been even slightly involved in the chain of events. The pain and frustration of an accident leads some injured parties to try and make as many people pay as possible. This instinct, while perhaps useful, needs to be tempered with some common sense and a firm understanding of the law. And, if multiple defendants are going to be sued, sufficient evidence has to be presented to show each party’s involvement and their negligence in the accident. 

After an accident on the I-20, Mrs. Passon filed a lawsuit against not only the negligent driver and their insurer, but also the City of Ruston (“City”), the Lincoln Parish Police Jury (“Parish”), and the Louisiana Department of Transportation and Development (“DOTD”). Clearly, she thought the intersection was inherently dangerous. After settling with the driver and insurance company, those two parties were dropped from the lawsuit. The City, the Parish and DOTD all filed motions for summary judgment to dismiss the case. The Parish asserted they had no custody or control of the area in which the accident occurred, while DOTD and the City stated the intersection posed no unreasonable risk of harm. DOTD and the City supported their motion with expert reviews of the intersection showing all traffic signals were in compliance with local regulations. They also presented the original construction plans for the intersection. Mrs. Passon countered the motion with a statement by an expert witness and newspaper articles about the intersection in question. 

Summary judgment is when the court decides for one party without a full trial. When the court examines all the information submitted for trial up to that point, such as the complaint, the defendant’s answer, evidence found during discovery, affidavits, depositions, etc., and finds there is no genuine dispute of fact between the parties, summary judgment is entered. La. C.C.P. art. 966. And though Louisiana state law allows a plaintiff to sue a public entity under La. R.S. 9:2800, the trial court granted the summary judgment motions. 

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