Articles Posted in Negligence

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64-Picutre-05-22-2019We have a reasonable expectation that public shopping areas will be free from dangerous hazards. Most stores even have policies regarding safety procedures. However, these safety procedures are not allows followed and injuries often result. Unfortunately, this is exactly what happened to Michelle Gauthier while shopping at a Dollar Tree Store.

Ms. Gauthier was shopping in a Dollar Tree Store located on Airline Drive in Bossier City, Louisiana. While walking through the store, she noticed boxes left on the floor throughout each aisle for restocking purposes. Ms. Gauthier walked down one of the isles, reached for a product on the shelf, and then took a step back. As she did so, her foot got caught on one of the box corners causing her to slip and hit her neck on the shelf in front of her. 

Ms. Gauthier filed for damages against Dollar Tree Store. Dollar Tree responded by filing a motion for summary judgment, a motion to dismiss the case, on the grounds that the box was plainly visible and did not create an unreasonably dangerous condition. The trial court ultimately found for Dollar Tree because Ms. Gauthier had seen the other boxes. Therefore, the trial court found it was reasonable to assume that Ms. Gauthier had seen the box which she tripped on. On appeal, the appellate court reversed the trial court’s finding and remanded the case for further proceedings.

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chairs-daylight-flowers-2101086-1024x683Accidents happen – both on the job and when going about regular life. When injuries do occur, we are more likely to go about getting treatment rather than gathering evidence. Nobody is falling down the stairs and then getting up to take pictures or get eyewitness reports. Unfortunately, failure to gather sufficient evidence can result in lasting pain and make you responsible for the bill for your injury. So what happens if you don’t gather evidence after an injury on the job?

In Houma, Louisiana, Keith Russell was delivering materials to build a patio on Timothy Walsh’s property. Russell walked toward a fence but there was no gate. Mr. Russell turned around to walk to the other side of the property and in doing so stepped into an uncovered water meter hole where he fell and hurt his knee. There were no witnesses. Mr. Russell finished the delivery and did not speak with Mr. Walsh. Mr. Russell then sued for damages of her injury. Claims for damages based on injuries caused by a “thing” are made pursuant to La. C.C. art 2317 and 2317.1. These statutes establish that an owner is responsible for things in their custody only (1) upon a showing that they knew, or exercising reasonable care, should have known of the defect that caused the damage (2) that damage would have been prevented if the owner exercised reasonable care (3) which he failed to do.

Mr. Walsh filed a motion for summary judgment seeking dismissal of the claims on the basis that Mr. Russell did not meet his burden of proof that Mr. Walsh had actual or constructive notice of a defect on his property. In support, Mr. and Mrs. Walsh pointed to plaintiff’s deposition testimony, as well as their own affidavits, to show the lack of evidence to support Mr. Russell’s claim. A motion for summary judgment is used when there is no dispute over important facts relating to the issue. An appellate court reviews a summary judgment as if it were a trial court asking whether there is any genuine issue of material fact, and then, whether the plaintiff is entitled to judgment as a matter of law. Summary judgment is granted if according to the evidence presented there is no dispute over the important facts and the party requesting summary judgment would win.The trial court found that Mr. Russell had the burden to produce evidence that defendant had actual or constructive notice of a lack of a cover on the water meter hole. During questioning the plaintiff said that neither Mr. Walsh nor Mrs. Walsh knew or would have known that the water meter cover was uncovered. This effectively nullified Mr. Russell’s case. Therefore, the trial court granted defendant’s motion for summary judgment ruling against the plaintiff and dismissed all claims against him. The appellate court agreed with the decision of the lower court.Whether Mr. Russell believes that the Walsh family is liable for not covering a hole on his property, his case against them lacked the evidence and material facts to get the case to trial. It is important to find good lawyers who can help prepare you for testimony, collect material facts, and evidence to support valid claims after your injury.

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59-032619-photoEvery business which opens its doors to the public owes a duty of care to their patrons, a duty to make sure the patron is safe and free from harm. Often, this is as simple as keeping walkways clear and ensuring spills and other hazards are cleaned up in a timely fashion. But what most businesses have never contemplated is a possibility that the duty of care would be owed to something other than a real, live, breathing person. Could the persons to which a merchant owes a duty of care include “juridical” personhood, such as a corporation or a limited liability company (L.L.C.)? In this instance, the answer was, “no.”

In April of 2013, Deborah Norred slipped and fell in the bathroom of the New Orleans Hamburger and Seafood restaurant on South Clearview Parkway in Jefferson Parish. She filed a lawsuit against the restaurant for negligence. Mrs. Norred was also the only member of American Rebel Arms, an L.L.C. on the verge of opening a firearms store in Holden. American Rebel Arms also filed a lawsuit against New Orleans Hamburger and Seafood for Mrs. Norred’s injury, claiming the injuries postponed the opening of the store, causing economic losses.

The restaurant argued that it had no duty of care to American Rebel Arms. It moved for a peremptory exception for no cause of action. A “peremptory exception” is a court motion which requests the court dismiss the lawsuit. Filing a peremptory exception for no cause of action means that there is no valid claim for which the plaintiff can demand relief. In short, the Defendant did nothing wrong, or at least nothing actionable under law. The Trial Court granted the exception, and American Rebel Arms appealed.

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23-Email-04-02-19-pictureA wrongful death action lawsuit can be difficult for an individual to have to deal with. But what happens when a clerk that stamps the lawsuit stamps a date that does not exist? What do you do when the Clerk makes this error? The Third Circuit Court of Appeal for Louisiana recently addressed the issue.

Linda Roberts (“Linda”) was diagnosed with bronchiolitis obliterans organizing pneumonia and passed away on July 28th, 2009. Linda’s son, Jeffrey Buelow, (“Jeffrey”) filed a wrongful death lawsuit on August 2nd, 2010, against his stepfather, Donald Roberts (“Donald”). The stamp on the lawsuit showed “10 JUL 33 A:40” and the Clerk wrote “Aug 2” above the stamp. Jeffrey alleged in his lawsuit that Donald wrongfully signed a consent form to withdraw Linda’s life support while under the influence of alcohol because BOOP could have still been cured. In response to the wrongful death suit, Donald filed a peremptory exception of prescription and a document that provided when Linda passed away. A peremptory exception of prescription is a defense by the defendant that the plaintiff’s lawsuit is barred by not being filed within the prescribed period of time. The provided that Linda passed away on July 28th, 2009, and not July 28th, 2010, as Jeffrey stated in his lawsuit. Jeffrey confirmed in his testimony that Linda did in fact pass away on July 28th, 2009, and evidence in form of a certificate of death verified such. Jeffrey then opted to represent himself at trial and argued that the wrongful death lawsuit should have been carried out because tort lawsuits are subject to a prescription of one year from the day that injury or damage occurs. La. C.C. art. 3492. Jeffrey alleged that the wrongful death lawsuit was faxed by his former attorney before July 28th, 2010 but failed to provide any evidence that demonstrated such. The Ninth Judicial District Court granted Donald’s peremptory exception of prescription because Jeffrey failed to file his lawsuit within one year from when Linda passed away. Jeffrey appealed the decision of the District Court.

On appeal, Jeffrey argued that the District Court erred in dismissing his claim his claim based on the evidence that was presented. For prescriptive periods that are one year or more, expiration of the prescription accrues on the day of the last year in which the date of the alleged wrongful death occurred. La. C.C. art. 3456. The Court of Appeal determined that the prescriptive date was July 29th, 2010, pursuant to La. C.C. art. 3456. The Court of Appeal noted that an employee from the clerk’s office obviously had failed to change the date on the stamp, as the non-existing date of July 33rd would have correctly been August 2nd. The Court of Appeal affirmed the District Court’s decision to dismiss Jeffrey’s claim due to the basis of prescription. The Court of Appeal came to this decision because the record from the District Court showed that the date of the filing was August 2nd, 2010 and Jeffrey failed to produce any letter from his previous counsel or a check paid for the filing fee that would have shown that the wrongful death lawsuit was filed within one year from the date that Linda passed away. This case demonstrates the importance of filing lawsuits in a timely manner.

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12-Photo-4_2_19-1024x683Ms. Sayre was a guest at the L’Auberge Casino Resort in Lake Charles when she tripped and fell while walking in front of the hotel restaurant. Based on the video footage of the accident, there were witnesses to the slip and fall; however, the hotel failed to document anything or take statements from any of the witnesses. Ms. Sayre reported a sticky substance on the floor, and subsequently suffered injuries to her knee, hand, neck, and abdomen. Later, Ms. Sayre learned she also had three fractured ribs and a full rotator cuff tear that would require surgery. So, what happens if you slip and fall in a restaurant?

Ms. Sayre filed a suit for negligence against the resort asserting that the clear, sticky substance caused her fall. She also stated that a restaurant employee told her three other people had fallen in the same spot. When Ms. Sayre attempted to find evidence of the accident, she couldn’t find any and never received an accident report from the resort. She later amended the petition asserting claims that the resort purposely failed to properly secure and preserve evidence to prevent people from bringing suit.

During trial, Ms. Sayre’s counsel requested that the court instruct the jury that failure to preserve evidence raises a presumption that the evidence would’ve been detrimental to the case absent a reasonable explanation. So, if the jury  finds that the defendant could have reasonably preserved the evidence and failed to do so without explanation, the jury can presume that the evidence wouldn’t favor the party. Ms. Sayre was informed by the court that they wouldn’t give the jury those instructions. Sayre’s counsel objected, the trial proceeded, and the jury returned a verdict in favor of the defendant. Ms. Sayre appealed the decision, claiming that the trial court erred by not giving the jury the instructions she requested.

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47-Email-03-13-19-Image-1024x795When most people think of filing a lawsuit, they expect to attend a trial in a court where a judge and jury decide the outcome of the case. However, most of the time cases are decided long before a trial is reached. One of the legal mechanisms for ending a lawsuit before it reaches trial is called a Motion for Summary Judgment. A summary judgment motion allows a party to ask the court to rule in their favor on a particular issue as a matter of law. The court may grant the motion if the parties are in agreement as to the important facts of the case and if the party that is making the motion is legally entitled to prevail on the claim in question. As this case demonstrates, a summary judgment motion can be an effective tool for ending a lawsuit, so when should you ask for summary judgement in a personal injury case?

Javonna Rayfield was staying at the Millet Motel in LaPlace, Louisiana on August 29, 2012, when Hurricane Isaac made landfall and created wind speeds reaching 100 mph. At around 5:00 a.m. Ms. Rayfield was awakened when the ceiling and walls of her room fell on top of her. Ms. Rayfield was taken to a local hospital, where she was treated for her injuries. Later, Millet found that a fire door down the hallway was buckled and the hasp lock was dangling and that the high winds had caused a concrete block wall on the floor above to collapse. The concrete blocks fell above Ms. Rayfield’s room, causing the ceiling and wall to buckle and fall.

Ms. Rayfield brought a lawsuit against the Millet Motel and its insurer, United Fire & Insurance Company (“Millet”). She alleged that the premises in the motel were defective and that Millet knew or should have been aware of the defective conditions. Ms. Rayfield filed a summary judgment motion, asking the court to conclude that there was a defective condition on the premises and that this condition was what caused her injuries. Millet similarly filed a summary judgment motion, asking the court to find that Ms. Rayfield’s injuries resulted solely from Hurricane Isaac. The trial court decided in Millet’s favor by granting their summary judgment motion and denied Ms. Rayfield’s motion for partial summary judgment, a decision which Ms. Rayfield appealed.

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shopping-cart-1550709-1024x768Most people believe that if you suffer a slip and fall accident in a store, you will most likely be entitled to some level of compensation. Unfortunately, that is not always the case.

After a slip and fall accident occurring because of what Regina Williams described as a “puddle of water” at a Super 1 Foods located in New Iberia Parish, Williams filed a lawsuit for negligence against the grocery store. Williams’ lawsuit was filed in New Iberia and named the Brookshire Grocery Company (“Brookshire”), Super 1 Foods’ parent company, as the defendant.

In her lawsuit, Williams alleged that Brookshire had knowledge of the water on the floor and did not use reasonable care to prevent a risk of harm. The trial court ruled in favor of Brookshire by granting summary judgment on their behalf. A motion for summary judgment is a quick and timely judgment requested by a party when there is no genuine issue based on the facts of a case.

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hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768
There is nothing more frightening than going to the emergency room with no sense of what is happening to your body. We believe that the hospital is our safe haven; that the physicians are sincere and will provide us with the care we need to get us back on our feet. However, if something goes wrong, people want someone to blame, and naturally, the hospital or the doctors are the easiest to blame. But sometimes things are misunderstood, and no one is to blame. So, what is the difference between a miscommunication and fraud when it comes to medical malpractice?

On March 16, 2011, Robert Royer received treatment for his heart at Our Lady of the Lake Hospital, Inc. (“OLOL”) at which Royer appeared to be experiencing symptoms of an apparent heart attack. Royer’s doctor encouraged him to drive to OLOL’s emergency room. Within three hours of arriving to OLOL, two EKG tests were performed on Royer to determine his condition, x-rays were taken, and he was admitted to the treatment area where he received medication. Shortly thereafter, OLOL admitted Royer to the critical care unit where he underwent surgery for his heart condition. Two days later, Royer was discharged from the hospital. Royer presented claims of fraud and medical malpractice against the hospital and the doctors.

Royer claimed that the hospital falsely advertised and misrepresented their medical services and stated that the defendant’s intentional misrepresentations convinced him that his complaints about his heart condition would be treated with urgently and seriously at OLOL. He believed that OLOL’s advertisements such as, “completely committed to medical excellence”, and OLOL had earned the “highest level recognition for performance excellence” misled him of the hospital’s service.

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elevator-symbol-1444871-691x1024When one is injured by an employee’s negligence, it is reasonable to expect an award of damages from the employer. When an injured party files a lawsuit, however, the plaintiff must prove that the one who caused his injuries was indeed an employee of the business. For most cases, this is very easy to prove. When there is a question of identity, though, the evidence available can make or break the lawsuit.

When Mr. Juan Alvarez was injured in an elevator at Touro Infirmary in the Orleans Parish of Louisiana, he filed a lawsuit against Touro Infirmary (“Touro”) alleging that two employees of Touro dropped a large piece of wood on him. Mr. Alvarez was visiting a doctor at Touro in Louisiana when the incident occurred. Under the legal theory of respondeat superior, Mr. Alvarez claims Touro is liable for the damage caused by their employees. Under respondeat superior, one can sue an employer for injuries caused by the negligence of their employees. Importantly, a plaintiff must establish that the one who caused the injury was an employee of the defendant.

Mr. Alvarez added JCT Construction (“JCT”) to the lawsuit based on his belief that JCT was supervising a construction project at Touro during the incident. JCT filed a motion for summary judgment to dismiss the complaint on the grounds that Mr. Alvarez failed to establish a connection between JCT and the individuals who allegedly injured in him in the elevator. The District Court granted the motion, and while the plaintiff appealed, the Louisiana Court of Appeal for the Fourth Circuit affirmed the decision.

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ladders-1173769-1024x683When you ask a friend for a favor, whether it is for a ride to the airport or for help cleaning up a room, you never expect that you will end up facing off against each other in a lawsuit. However, when you do end up in such an unfortunate situation, it is important to have a good lawyer on hand to ensure that the dispute is resolved in the quickest manner possible. Michael P. Cox found himself in just such a situation when his friend Laina Dutton offered to help him clean out the building of his recently closed business, Xtreme Nutrition, located in Baton Rouge, Louisiana. When Mr. Cox was out of the room, Ms. Dutton decided to climb a ladder and remove a banner that was hanging on the wall. The ladder was not in a secure location and Ms. Dutton fell backward off the ladder injuring her back and side. She sued Mr. Cox, Xtreme Nutrition, and Allstate Insurance, the insurer for Mr. Cox and Xtreme Nutrition. Ms. Dutton’s lawsuit for negligence was premised on the argument that Mr. Cox owed her a duty to erect the ladder safely, monitor and assist her in the use of the ladder, and warn her of any danger in using it. She argued that the ladder had been set up in a dangerous manner because it was not placed on a flat surface, that Mr. Cox did not warn her of this issue, and that he was at fault for her fall due to his inattentiveness. Ms. Dutton suffered injuries to her arm, back, and spine. For these injuries, she sought special and general damages.

However, the lawsuit never made it to trial. The Trial Court granted summary judgment in favor of the defendants and dismissed the case with prejudice. The Trial Court dismissed the case following pre-trial discovery based on its finding that there was a lack of evidence supporting a negligence claim and that Mr. Cox did not owe a duty to Ms. Dutton. Ms. Dutton appealed, arguing that the Trial Court erred in dismissing the case, but the Louisiana First Circuit Court of Appeal affirmed the dismissal. So, why was Mr. Cox not found negligent in Ms. Dutton’s fall? 

The Trial Court based its dismissal on its view that Ms. Dutton could not produce enough evidence to support the negligence claim. This was because Ms. Dutton was not an employee of Xtreme Nutrition, and Mr. Cox did not pay her to help him clear out the newly closed offices. Further, Ms. Dutton climbed up on the ladder while Mr. Cox was in another room. He had not asked her to climb the ladder and probably did not even know she had gone up. Ms. Dutton even admitted that she had used the ladder before the fall without any problems and did not think the ladder was defective in any way. Because Ms. Dutton had not been instructed by Mr. Cox to go up the ladder, and there was no evidence that he had set up the ladder in a negligent manner, the Trial Court determined that there was no evidence to support a negligence lawsuit following discovery. Thus, the Court dismissed the case before heading to trial. From this decision Ms. Dutton appealed, arguing that the Trial Court erred in two major ways. First, she argued that the only reasonable explanation for the ladder fall was that it had been improperly set up by Mr. Cox. Additionally, since Mr. Cox had set up the ladder, he owed her a duty to properly set it up and he had failed in that duty when he allowed her to climb the ladder in such an unsafe condition. Second, Ms. Dutton argued that in his deposition testimony, Mr. Cox had admitted that he set up the ladder in a dangerous manner by placing one leg on a part of an adjacent desk and the other on the ground, leading to an imbalance that caused the fall. Ms. Dutton argued that these two points were genuine issues of material fact that should preclude a summary judgment dismissal.

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