Articles Posted in Negligence

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green-car-2265634-1024x683Life can be upended in an instant. One person’s negligent act can change the trajectory of multiple people’s lives.  How much monetary compensation should this negligent, life-altering person be required to pay? Often after a trial court determines a damage award, the award stays the same. But what about when this award does not really compensate for the injuries?  Recently, the Louisiana Third Circuit Court of Appeal determined that an injured party was entitled to far more than the trial court awarded in a car accident lawsuit out of Iberia Parish.    

June Anupat was in a car accident along with her husband and four children.  Her vehicle was rear-ended by Gabriel Castillo after Castillo was rear-ended by Zachary Louviere.  At the scene, Ms. Anupat professed that she and her children seemed unharmed. While filling out paperwork for the police officer working the incident, however, Ms. Anupat started to experience dizziness and pain in her back, neck, and head, accompanied by vomiting.  She was taken to the hospital where she started to recover but remained in pain. For the six months following the accident, Ms. Anupat frequented the doctor’s office for medical treatment on her back, shoulders and arm.  

What Ms. Anupat could not receive treatment for was the complete disruption to her daily life as a result of the accident.  Prior to the accident, she was the primary caretaker for her four young children with her youngest child being just a year old.  Her husband was unable to work as a result of the accident, requiring Ms. Anupat to seek employment outside of the home. In turn, this required her grandmother to come to Louisiana all the way from Thailand.  Her grandmother could not indefinitely remain in the United States, so Ms. Anupat’s mother then also came from Thailand to care for the children. Once her family’s time in the United States was up, Ms. Anupat was still not able to quit her outside employment to return to caring for her children.  Sadly, Ms. Anupat was forced to send her youngest child to Thailand with Ms. Anupat’s family. Moreover, Ms. Anupat’s job as a restaurant cook aggravated the injury to her arm. One person’s negligence drastically altered several lives in this case.  

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orange-and-gray-painted-roof-under-cloudy-347152-1024x684There’s a general understanding between a buyer and a seller that the seller will provide the good in an acceptable condition for a buyer. If the product is faulty, then the general understanding is that the seller will take responsibility for making things right as soon as they can. This is even solidified by warranties. What happens, then, when a construction company sells a New Orleans resident a roof that leaks so much it leads to a man slipping and falling? Is the danger created by the leak so obvious that the construction company shouldn’t be held liable for the injury?

This problem arose when Magnolia Roofing and Exteriors (“Magnolia”) installed a new roof at the home of Tammy Stewart. Ms. Stewart was never completely happy with the quality of the roof when it was installed in September 2011, but significant leaks didn’t appear until January 2013, a few months after Hurricane Isaac wrecked New Orleans. The leaks were so bad that water came through her second-floor attic, through the ceiling, and trickled down the chandelier in her foyer. Magnolia’s parent company, Sears Home Improvement Products, sent repairmen to look at the damage a few days later. Ms. Stewart was at work so her friend, Glenn Jones, let them in to the attic to see where the leak was. The attic was consistently described as “unfinished, unlit, [and] wet.” Since the attic was unfinished and without light, Mr. Jones was standing on a crossbeam between the sheetrock and using his cell phone for light. When he turned around to show the worker where the leak was, he slipped and fell 16 feet through the sheetrock into the first-floor foyer. Mr. Jones sustained multiple serious injuries as a result and brought a case of negligence against Ms. Stewart and Magnolia.

The core issue of this case before the Louisiana Fourth Circuit Court of Appeals was the open and obvious doctrine. If it is plainly clear to everyone that a danger exists, then a defendant is not liable for an injury that occurs. The defendant must show that the danger is open and obvious to benefit from this legal doctrine. See Scarberry v. Entergy Corporation, et al., N.V., 136 So.3d 204 (La. Ct. App. 2014). Magnolia claimed the wet crossbeams were a clear and obvious danger; the trial court agreed with them on summary judgment and found them not liable. The trial court explicitly limited the entire review of Magnolia’s petition to this one issue, so the Fourth Circuit did the same. See La. C.C.P. art. 2164. Mr. Jones refuted this claim by saying that the darkness of the attic was the obvious danger, not the wetness of the beams, and the darkness did not cause the injury, so Magnolia could be liable.

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2-man-on-construction-site-during-daytime-159306-1024x683Construction is a necessary inconvenience. No one enjoys having their travel rerouted due to road construction, but nonetheless, drivers must follow construction signs to safely avoid the temporary hazards road work creates. What happens when a driver doesn’t see the construction signs and drives her car into a large hole in the street? Even if the path down the street isn’t clear, what’s clear to the Louisiana Fourth Circuit Court of Appeals is that a trial judge isn’t allowed to determine which party is telling the truth.

A single car accident happened the night of December 6, 2012 around 10:30 p.m. when Eileen Maldonado, her daughter, Dana Williams, and their friend, Derrick Sykes, were heading to Harrah’s Casino in downtown New Orleans. With Ms. Maldonado behind the wheel, their vehicle went through the under-construction intersection of Elks Place and Cleveland Avenue. Since it was dark, Ms. Maldonado did not see the large hole in the road which had been dug by Archer Western Construction, and the passenger side of her car fell into the hole.

Ms. Williams and Mr. Sykes initially brought a lawsuit against Ms. Maldonado and her insurer along with Archer Western Construction and their insurer. They blamed the accident on the negligence of both Ms. Maldonado and Archer Western, claiming that there were no barriers around the hole or general signs saying to not go through that intersection. An amendment to their lawsuit added Ms. Maldonado’s negligent driving to the case.

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grocery-cart-with-item-1005638-768x1024Dollar stores carry a wide variety of merchandise, and stacking these items on shelves saves space. When stocking, employees should always take reasonable care to stack items in a safe manner so they do not fall off the shelf and potentially injure shoppers. For one Slidell man, however, an everyday grocery trip to Dollar General turned into a 4-year, $50,000 lawsuit.

Charles Frazier went to Dollar General one August day to buy a quart of oil; however, when he went to grab the bottle, plastic tote lids on the shelf above him slid off, bumped him in the neck, and caused him to fall onto one knee. After getting up, he reported the incident to a store manager. Then, nearly a year later, he sued Dollar General for $50,000 in injuries, claiming that he suffered physical pain, mental anguish, medical expenses, and lost wages. According to his lawsuit, Dollar General was negligent in allowing its merchandise to fall off the shelf and onto customers.

These types of lawsuits are appropriately known as falling merchandise cases, and the statute that governs ensuing negligence claims is La. R.S.9:2800.6(A). The Louisiana law provides that a merchant, like Dollar General, must use “a reasonable effort to keep the premises free of any hazardous conditions.” When brought to trial, the Twenty-Second Judicial District Court of Louisiana ruled in favor of Mr. Frazier, but applied Section B of this statute. This section, instead of requiring an injured party to show that a hazardous condition existed, only requires a showing that the “condition presented an unreasonable risk of harm.” La. R.S.9:2800.6(B). The defendant, Dollar General, appealed this decision to the Louisiana First Circuit Court of Appeal.

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man-standing-on-parking-lot-163772-1024x576If you are a homeowner, the number of security measures you take to protect your house is likely largely influenced by the safety of your area. For example, if there’s a lot of crime in the area or a lack of good lighting on your street at night, you will probably more carefully guard your home. Contrarily, if you trust your neighbors and have a vigilant neighborhood watch group, you might even feel comfortable leaving your doors unlocked. Businesses think about many of the same factors when deciding how much security their store needs. One major difference between a home and a business is that a business’s lack of security can potentially make it liable for negligence if a crime happens on their property. 

Such was the case before the United States Court of Appeals for the Fifth Circuit. Jerry and Susan Simpson sued Dollar Tree after Mrs. Simpson was robbed in the parking lot of their Monroe, Louisiana, location. They brought the lawsuit to the District Court for the Western District of Louisiana, arguing that Dollar Tree failed to properly meet their duty to protect her and other customers from harm while on their property. The District Court didn’t think that the Simpsons had shown that there was a real question of material fact as to if Dollar Tree was negligent. As a result, the District Court granted Dollar Tree summary judgment and dismissed the case.

The Fifth Circuit then had to consider the Simpson’s appeal of this summary judgment. Like all other summary judgment appeals, the Fifth Circuit just needed to determine to if reasonable people could come to different conclusions on the facts of the case. If so, then it was inappropriate to grant summary judgment. See Fed. R. Civ. P. 56(a).

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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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