Negligence

April 10, 2023

Slip and Fall at Home Depot Lawsuit Dismissed on Lack of Proof of Unreasonable Risk of Harm

ford_e_series_wagon_10-1024x814 Customers have an expectation of safety while shopping in retail stores. When a customer is injured while on the premise, they are entitled to damages. However, a customer may only recover damages if adequate proof is shown. Proof of an unreasonable risk of harm is a critical element of Louisiana slip and fall cases. The following case out of Slidell, Louisiana, shows why facts are crucial when pursuing a slip and fall lawsuit.

Hope Held was injured while shopping at Home Depot with her child. She alleged her injuries were due to the misplacement of a wire hand truck(truck) in the electronic section of the store. After her fall, she was found by an employee, Jeffrey Crossland, and was escorted out of the aisle to receive help and complete an accident report.

Held filed a lawsuit for her injuries against Home Depot. The store responded by successfully filing a motion for summary judgment in the trial court. Held disagreed and appealed the judgment to the appellate court.

April 7, 2023

Toe Implant Patient Wins Summary Judgment Over Manufacturers’ Defective Product

by Berniard Law Firm

feet_toe_human_body-1024x683 No one wants to experience pain and suffering after spending money and time getting surgery. Nonetheless, some people fall victim to these complications. A person can be prone to injury when a defective product is inserted into their body. This was the case with Kale Flagg.

Kale Flagg underwent foot surgery to install toe implants made by Stryker Corporation (“Stryker”) and Memometal Incorporated (“Memometal”) (collectively, the “Manufacturers”). Unfortunately, several months after the surgery, Flagg’s implants broke and caused him extreme pain. This resulted in him undergoing multiple surgeries to try to fix the problem.

Flagg filed a lawsuit against the Manufacturers alleging implants were defective, which caused his ongoing suffering and deformity. The Manufacturers responded by seeking a motion to dismiss under the Federal Rule of Civil Procedure 12(b)(6), and the district court granted the motion. Flagg appealed.

April 6, 2023

How can an Appeal Affect a Jury’s Award for Mental and Physical Pain and Suffering?

by Berniard Law Firm

money_change_penny_quarter-1024x962 Calculating appropriate damages for a plaintiff who experiences ongoing injuries from a vehicle accident is complex. Jury awards generally are left undisturbed by appellate courts. The following lawsuit shows how the appeals process can alter a jury’s award for mental and physical pain and suffering.

On October 1, 2009, Patricia Aguillard was driving on the interstate when she slowed her vehicle due to traffic ahead. Jeremie Gregory was driving behind Aguillard and rear-ended her vehicle. As a result of the accident, Aguillard experienced extensive physical injuries and mental health issues. As a result, Aguillard filed a lawsuit for damages for her medical issues and vehicle damage against Mr. Gregory and the owner of his vehicle, the City of Baton Rouge.

The trial court found in favor of Aguillard after a jury trial, determining that Mr. Gregory was 100% at fault for the accident. The jury awarded her $122,751 for past medical expenses and $450,150 for future medical expenses, totaling $572,901. However, Aguillard filed a motion for a Judgment Not Withstanding the Verdict (JNOV) in response to this award, claiming that the jury erred when it failed to award her more money for future medical expenses and general damages. The court denied her claim for more in future medical expenses but granted the JNOV as to general damages. The court granted the following amounts: $350,000 for physical pain and suffering, $75,000 for mental pain and suffering, and $15,000 for loss of enjoyment of life. This brought Aguillard’s total award to $1,012,901.

April 3, 2023

What is the Deadline to File a Workers’ Compensation Claim in Louisiana?

by Berniard Law Firm

inside_ambulance_ambulance_lighting-1024x576 Physically demanding jobs can result in workplace injuries that prevent employees from working and earning a wage. However, it is essential when filing a worker’s compensation claim not only to prove your claim but to do so within the timelines required by the courts. A workplace accident claim filed in Metairie, Louisiana shows the importance of timeliness in workers’ compensation lawsuits and helps answer the question; What is the Deadline to File a Workers’ Compensation Claim in Louisiana?

Tramaine Eugene-Robinson was working as an EMT for East Jefferson General Hospital in late 2014. While transporting a patient on a stretcher, a malfunction occurred, causing her to drop the patient and injure her back and knees. When EJGH did not pay her wage benefits, Ms. Eugene-Robinson sued in 2017, alleging that she had suffered an injury of a “developmental nature,” meaning that the injury developed sometime after the actual accident. Although EJGH acknowledged that the plaintiff had experienced an injury at work, they argued that her claim was untimely under La. R.S. 23:1209(A).

La. R.S. 23:1209(A) sets time limits on worker’s compensation claims. The courts have recognized two different situations that establish the date that an injury turns into a disability: 1) the date the employee must stop working due to the injury or 2) the date that an employee is diagnosed as disabled. Winford v. Conerly Corp.

April 2, 2023

Can I get Workers’ Compensation Benefits if I Don’t Immediately Report My Injury?

by Berniard Law Firm

washing_machine_dryer_laundry-1024x768 Many jobs require physical labor, which comes with some risks of injury on the clock, especially for those who install and move equipment. Sometimes you get injured while working, and you think, “maybe I can just work through this.” However, if you attempt to work through an injury and don’t report it immediately to your employer, they may try to avoid paying you workers’ compensation benefits. This happened to James Payton, a veteran and previous employee of NASA. Payton’s case helps answer the question; Can I get Workers’ Compensation Benefits if I Don’t Immediately Report My Injury?

James Payton began working for Sears in 2013. Before this position, Payton served in the military and worked for NASA for 31 years. He was hired at Sears as an appliance technician, which requires some physical labor. During a shift, Payton was installing a washer/dryer in a residence and injured his back. Payton had never been involved in another accident or had injured his back before his employment with Sears.

Payton continued working after his injury in the hope it would correct itself. Unfortunately, the injury worsened over the next few days, and Payton found it challenging to complete simple actions, such as getting out of bed or driving a car. After visiting a physician and receiving an MRI, it was confirmed that Payton had herniated discs in his lower back, and he was advised to avoid heavy lifting. He then reported his medical diagnosis to Sears approximately a month after the initial injury.

April 1, 2023

What is the Deadline to Answer and the Effect of Requests for Admissions in a Louisiana Lawsuit?

by Berniard Law Firm

request_hooks_chain_steel-1024x683 If you are involved in a lawsuit, you probably have a lot of things on your mind. However, you must pay attention to the required deadlines and time to respond to documents from the other side, including requests for admission. If you do not respond on time, you might be deemed to have admitted to facts that are helpful to the other side. That could cause significant implications for your lawsuit. The following Louisiana lawsuit shows the deadline to answer and the effect of admission requests.

Steven Richard was involved in a car accident in Concordia Parish, Louisiana, involving a vehicle driven by Fred Taylor. Richard later sued Taylor, Fred’s Automotive (the shop where Taylor’s vehicle was repaired), and Caitlin Insurance, the insurance company that covered Fred’s Automotive.

Fred’s Automotive and Caitlin Insurance brought a motion for summary judgment. They argued they could not be liable to Richard because their limited liability company had not existed when the accident occurred. As evidence, they introduced a printout with the relevant recording and other operating information for their limited liability company. The trial court granted their motion for summary judgment and dismissed the claims against Fred’s Automotive and Caitlin Insurance.

March 31, 2023

Slip and Fall in Louisiana Convenience Store Lawsuit Discusses Open and Obvious Risk

by Berniard Law Firm

wooden_pallets_pallets_stack-768x1024 If you have ever watched a legal television show, you have seen the wide variety of evidence presented. Even if your lawsuit is not as high-stakes as the latest murder mystery show, it is still important to present sufficient evidence to satisfy your burden of proof and prevail on your claim. Otherwise, your case could get dismissed on a motion for summary judgment. The following lawsuit involving a slip in fall in a Louisiana convenience store discusses the concept of open and obvious risks.

Moore drove his car to a Murphy Oil gas station in Hammond, Louisiana. After he had purchased some items in the convenience store, he walked towards the door. While he reached for the door, he turned back and talked to the store manager. As he left the store, his foot contacted a pallet display stand with water bottles that were located right outside the door. He tripped and stumbled but did not fall. Moore reported this to the store manager. Afterward, he received treatment for his back pain. Murphy Oil paid for this treatment for about four months.

When Murphy Oil stopped paying for his treatment, Moore filed a lawsuit alleging that the display with water bottles was an unreasonably dangerous condition. The defendants, Murphy Oil and Liberty Mutual Fire Insurance, filed a motion for summary judgment. The court denied this motion, and the case went to trial. Before trial, Moore agreed that his damages were not over $50,000. At the trial, the court ruled in favor of Moore and awarded damages of $37,500. After they lost, Murphy Oil and Liberty Mutual appealed, arguing that the trial court incorrectly denied their summary judgment motion.

March 30, 2023

When Is A Louisiana Jury Verdict Considered Excessive?

by Berniard Law Firm

money_finance_house_mortgage-1024x678 What happens if you win a lawsuit but the other side moves to reduce the amount of money you were awarded? This is the situation Marcus Berry found himself in after he was awarded over a million dollars in damages due to injuries he suffered in a car accident.

Following a car accident, Berry sued the driver of the car that hit him, Leon Berry, and his insurer, Auto-Owners Insurance Company. The other driver admitted liability but contested the nature and extent of the damage Berry suffered.

At trial, the jury agreed Berry was injured as a result of the accident. They awarded him a total of $1.29 million in damages. This consisted of $900,000 for pain and suffering and loss of enjoyment of life previously, presently, and in the future, as well as $390,000 for medical expenses. Following this award, the defendants moved for a new trial or remittitur (a procedure where the court can reduce an excessive verdict), arguing that the jury had awarded excessive damages.

March 26, 2023

Louisiana Court Holds Plaintiff’s Failure to Have Surgery Precludes Argument for Future Medical Expenses

by Berniard Law Firm

surgery_medicine_science_1501907-1024x683 Scheduling a post-accident surgery promptly may be essential to ensure complete physical recovery. Sometimes, the scheduling of post-accident surgery matters less. However, scheduling your surgery prudently may pay off when recovering damages in court, as one plaintiff found in a recent appeal discussed below.

In 2010, Karl Kimsey was involved in a car accident in DeRidder, Louisiana. Mr. Kimsey alleged a left knee injury and underwent an arthroscopic procedure in late 2010. Kimsey filed a lawsuit against his car insurance company. In 2013, an initial judgment awarded damages, lost wages of $300 a week limited to his period of recovery and required the scheduling of a recommended reconstructive surgery. The defendant’s insurance company would pay for the surgery, provided it happened within one year of the judgment. If the surgery did not happen within one year, any party could return to court. Both parties appealed that order, but their appeals were dismissed because the judgment was conditional and thus not final. Mr. Kimsey did not have the surgery within one year and appealed the final trial court order.

Mr. Kimsey’s main issues on appeal were that the court erred in not awarding future medical expenses, not awarding the argued lost earning capacity of Mr. Kimsey; and erred in the amount awarded of an expert fee for Mr. Kimsey’s expert. The relevant standard of review for these issues are“manifest error” or “clearly wrong”——a demanding standard to meet in Louisiana that requires the reviewing court to review the record in its entirety “to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.” Stobart v. State through Department of Transportation and Development,

March 23, 2023

Will an Appeals Court Consider Evidence that Attorneys forget to “Offer and Introduce?”

by Berniard Law Firm

law_justice_court_judge-1024x768 Most lawsuits begin with a petition that lays out the facts and basis for a claim. These facts are pertinent to the survival of each claim and defense. Many pretrial hearings and motions are based on what is pleaded in the petition. The face of each pleading can determine the case’s outcome from the beginning.

To attack the petition to have a lawsuit thrown out of court, attorneys will file motions alleging various exceptions. These exceptions can be based on different issues surrounding the case, such as a prescription or peremption exception. When arguing those exceptions, the attorney must be conscientious to “admit” all the evidence into the record that bolsters their position. The following lawsuit out of Ascension Parish, Louisiana, shows how important it is to properly admit evidence into the record when arguing in Court and what can happen when an attorney forgets to “offer and introduce” evidence filed with a motion.

William and Rosa Cambre owned a building they leased to Premier Performance Marine, L.L.C (Premier). Premier had the building insured by an Atain Specialty Insurance Company (Atain) policy. Therefore, when a storm severely damaged the building, Attain paid Premier under the insurance policy.