Negligence

August 5, 2019

When You Fall off a Ladder Whose Fault Is It?

ladders-1173769-1024x683 When 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.

August 3, 2019

Can You Sue For Injuries Received On Workout Equipment?

by Berniard Law Firm

fitness-series-2-1467446-1024x768 Summary judgment is a judgment entered by a court for one party and against another party without a full trial. More specifically, summary judgment may be granted where the legal claim or cause of action can be decided upon certain facts without a trial. Can you receive summary judgement in a negligence case against a squat machine manufacturer?

In order to succeed in a motion for summary judgment, a movant must show (1) that there is no genuine issue of material fact, and (2) that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966. A “material fact” is any fact that may be important, valuable, or critical in deciding a case, the suppression of which may reasonably result in a different decision. The movant, then, bears the burden of showing that there is no genuine issue of material fact, but the movant need only identify the absence of factual support for one or more elements essential to the opposing party’s claim. If the opposing party then fails to produce factual support for the challenged elements of his claim, summary judgment in favor of the movant is proper.

In the present case, Thomas Nearhood incurred injuries while exercising on a squat machine at an Anytime Fitness gym in Pineville, Louisiana. The accident happened as a result of Nearhood’s failure to properly secure the weighted bar with the latching mechanism provided for that purpose. One year after sustaining his injuries, Nearhood filed suit against a number of defendants, including Precor, the manufacturer of the squat machine. In his petition, Nearhood claimed that the squat machine did not provide sufficient warnings or instructions to prevent injuries such as his.

August 1, 2019

What Happens When a Tree Falls On My Car While I’m Driving?

by Berniard Law Firm

city-dark-dawn-248159-1024x683 The state is not a guarantor of the safety of motorists using their roads, meaning you must be vigilant and careful while driving. See Thompson v. State of Louisiana, 701 So.2d 952 (La. 1997). But what happens when something falls on your car while you are driving on a public street, are you out of luck? Or is the state or owner of the fallen property potentially liable? Typically, the owner of an item (i.e., a tree) is liable for the damages caused by its “ruin, vice, or defect,” if it’s shown that they knew or should have known of the “ruin, vice, or defect” that caused the damage, and that the damage could have been prevented if the owner exercised reasonable care. La. C.C. art. 2317.1. However, if the damage is caused by “an act of God,” also known as force majeure, defined as an unusual, sudden, and unexpected force of nature, then this results in no individual being held liable for the damage caused. Brown v. Williams, 850 So.2d 1116 (La. Ct. App. 2003).

In 2007, Larry Mitchell (“Mr. Mitchell”) and a passenger were driving on Highway 80 in Ruston, Louisiana, when a large tree, estimated to be 70 feet tall, fell across the highway onto the front of Mr. Mitchell’s vehicle. The tree was near the highway but on the property of Beverly Hill-Hercules (“Ms. Hercules”). As a result of the tree falling on Mr. Mitchell’s car, he suffered severe fractures in his spine and nose and was bruised and lacerated. In fact, at the time of the trial in 2014, Mr. Mitchell was still required to wear a cervical collar for stabilization. Mr. Mitchell sought damages from Ms. Hercules, the Department of Transportation and Development (DOTD), and their insurers, alleging that the tree was sick (i.e., defective), and should have been removed prior to the accident.

At trial, DOTD and Ms. Hercules argued that the accident was “an act of God,” meaning they were not liable for the damages caused. Through testimony presented it was clear that the DOTD did not require its employees to examine all trees along the highway looking for diseased trees, rather, Tommy Lane Boddie (“Mr. Boddie”), a DOTD employee, testified that he only looked for and reported trees that were leaning and were in danger of imminently falling. Further, Ms. Herculeses’ deposition, which was read into the record, provided that it was very windy on the night of the accident and the tree was completely uprooted.

July 17, 2019

Elayne Hunt Correctional Facility Negligence Leads to Payout for Inmate

by Berniard Law Firm

68-photo-3_26_19-819x1024 Can an inmate be awarded damages from an injury caused by the employees of the correctional facility? According to the 5th Circuit Court of Appeal, the answer is yes. Mr. Miller was an inmate at Elayne Hunt Correctional Facility when an employee of the facility pulled him out of his bunk and threw him on the ground. Miller sued Captain Credit and the State of Louisiana for negligence under state law as well as violations of the 8th amendment under 42 U.S.C. §§ 1331 and 1983. Miller claimed that Captain Credit, as an employee for the state of Louisiana violated his civil rights with his act of negligence and that the federal district court has jurisdiction in this case.

When the case went to trial, a jury found that the employee acted with negligence and therefore awarded Mr. Miller damages. Captain Credit moved to alter the judgment under Fed. R. Civ. P. 56(e), arguing that Miller failed to prove a causal relationship between his shoulder injury and the negligent act. The district court denied their motion and they appealed the Fifth Circuit.

Federal Rule 59(e) gives the district court the authority to alter or amend a judgment when they have committed a “manifest error of law or fact”, and the appellate court reviews for an abuse of discretion. See Schiller v. Physicians Res. Grp., 342 F.3d 563,567 (5th Cir. 2003). For this type of appeal, the district court’s decision and the decision-making process need only be reasonable for the decision to be affirmed.

July 8, 2019

Question of Airborne Grease Particles is Enough for Trial in Slip and Fall Case

by Berniard Law Firm

heavy-duty-1192390-1024x681 Grease is often used to make foods easy to remove from pans and baking sheets. It creates a slippery, smooth surface that allows most foods to slide right out of the pan. Unfortunately, when grease meets a wood floor, humans walking over can slide around as well. Sharon Tomlinson found this out the hard way as a waitress led her to a table in a Daisy Dukes restaurant in May of 2011. It is believed that airborne grease particles settled on the floor, causing Mrs. Tomlinson to fall and injure her knee when she stepped off of a commercial rug and onto the allegedly greasy floor.

Mrs. Tomlinson filed a lawsuit in 2012 against Daisy Dukes and their insurer, Landmark (“Defendants”), for the slip and fall accident. She also filed a spoliation claim alleging the restaurant failed to preserve relevant evidence, such as security camera footage. Denying liability, Daisy Dukes and Landmark moved for summary judgment on both claims, arguing that Mrs. Tomlinson could not produce evidence showing anything was on the floor that contributed to her accident. Louisiana state law puts the burden of proving three different factors, including this one, on the plaintiff (Mrs. Tomlinson). La. R.S. 9:2800.6. Thus, Defendants argued, there were no genuine issues of material fact, and they were entitled to summary judgment as a matter of law. The trial court agreed and found Mrs. Tomlinson did not meet her burden of proof. The trial court also granted summary judgment against Mrs. Tomlinson on her spoliation claim for the same reasons.

Summary judgment is appropriate when there is no issue of material fact from which a jury could find for the non-moving party. See Bilbe v. Foster, 176 So.3d 542 (La. Ct. App. 2015). Here, that means Defendants had to show there were no issues of material fact that could lead a jury to conclude Defendants were liable for the slip and fall injuries. Even without direct evidence, a plaintiff may satisfy their burden of proof with circumstantial evidence as long as it excludes every reasonable alternative cause for the accident, but the trial court found Mrs. Tomlinson could show neither direct or circumstantial evidence. The appellate court did not agree and reversed that decision.

July 4, 2019

Unwelcome Bite at Kiwanis Club Pancake Festival Leads to Litigation

by Berniard Law Firm

tahoe-beetschen-1368685-unsplash-1024x683 The bond between people and their dogs can be one as close as family. Whether they serve as pets, guides, or even co-workers, dogs can provide a type of comfort and comradeship that is completely unique. It is sometimes easy to forget that dogs are animals that can chase, scratch, and even bite on a moment’s notice. While most people don’t like to believe that their canine companions would hurt others, many dogs—even the most docile or trained—are capable of causing harm quickly, and it is important to know how to handle these situations. This issue was explored in a case appealed to the Louisiana First Circuit Court of Appeal after an incident at Louisiana State University.

On October 20, 2012, the Kiwanis Club Pancake Festival (“Pancake Festival”) was in full swing at the Louisiana State University Pete Maravich Assembly Center. Officers Matthew Hall and Johnny Sparks attended the event. Officer Hall brought and was in charge of his K-9, Sita, a Belgian Malinois. Officer Sparks brought a robot that the state police use for detecting explosives. The officers stayed outside of the Pancake Festival to educate the public about Sita and the purpose of the robot. During the event, patrons had permission to approach and pet Sita.

Fredericka Bradley, a 10-year-old child, attended the Pancake Festival with her mother, Hazel Bradley, her cousin, Preston Henderson, and two neighbor children, Bradisa White and Sade Townsend. After eating breakfast, Mrs. Bradley stayed inside while the children went outside. At this point, each party in the litigation has a different story as to how events unfolded. According to Officer Hall, Sita sat next to him—leashed—as patrons came up to them. Fredericka approached and asked pet Sita. She also tried to hug the dog, but Hall told her not to. Fredericka walked away, then returned to pet Sita again. Officer Hall was sitting with Sita, speaking to a man and two children when Fredericka came up a third time. Officer Hall claimed Fredericka tried to sit on Sita, so he pulled Fredericka away and reminded her only petting was allowed. While Officer Hall pet Sita’s neck, Fredericka came behind the dog and pet her head. Sita snapped at the child and bit her on the face, leaving a small puncture wound. Officer Hall stated Sita had not shown any aggression prior to the incident.

July 1, 2019

Injured Worker Fails to Recover in Slip-and-Fall Case Due to “Open and Obvious” Defect

by Berniard Law Firm

63-photo-3_13_19-1024x683 Under Louisiana law, an owner of a building is not necessarily responsible for all injuries resulting from any risk posed by the building. Owners are only responsible for those injuries caused by defective conditions, and courts have recognized that defendants have no general duty to protect against hazards that are “open and obvious.” The logic behind this approach is that when a risk is open and obvious to everyone, the probability of injury is low. As a result, the owner of the premises is not required to go to the trouble and expense of fixing the condition that could be easily avoided by prudent persons.

In 2013, Roger Butler was working at an International Paper mill in Dequincy, Louisiana. His supervisor instructed him to clear a board jam from a chipping machine. While clearing the board jam, Butler fell down a set of stairs and suffered serious injuries. Butler brought suit against the mill claiming that the mill’s negligence caused his injuries because the stairs he fell down was covered in wood chips and other debris. The mill filed a motion for summary judgment, asserting that the wood chips and debris on the stairs were an “open and obvious” hazard against which it had no duty to protect Butler. The district court granted the mill’s motion, finding that Butler did not show there was a genuine issue of material fact concerning the mill’s duty because the hazard that caused his injuries was open and obvious. Butler appealed to the U.S. Court of Appeals for the Fifth Circuit.

For a hazard to be considered “open and obvious,” it must be apparent to all who encounter the dangerous condition, and not just the plaintiff who is injured because of it. See Broussard v. State ex. Rel. Office of State Bldgs., 113 So. 3d 175, 183 (La. 2013). Butler argued that there was no evidence the chips on the stairs were an open and obvious hazard to anyone other than himself. However, based on the video evidence provided by International Paper, the wood chips and debris were so numerous and prominent that it would be considered open and obvious to a jury. The Fifth Circuit Court concluded that the video evidence was sufficient to establish an open and obvious hazard, and nothing further was required by International Paper to establish that fact.

June 28, 2019

Plaintiff-Mother Faces Dismissal of Multiple Defendants in Ruston Child Injury Case

by Berniard Law Firm

akira-hojo-502567-unsplash-1024x683 Most Louisiana residents understand the liability they may incur if they do not properly fence a backyard pool. But what about other, less obvious drowning hazards, such as a church’s baptismal pool? Who is held accountable for the failure to protect children from falling in? Typically, a church is part of a diocese and must meet the general guidelines established by the diocese in order to maintain its affiliation. For instance, the First Assembly Church of God (“First Assembly”) in Ruston, Louisiana is affiliated with the Louisiana District Council of the Assemblies of God (the “DC”) and the General Council of the Assemblies of God (the “GC”). After a tragic accident involving the toddler of a First Assembly family, Louisiana’s Second Circuit Court of Appeal was called upon to determine whether the DC and the GC had sufficient control over First Assembly to be liable for the church’s negligence.

In 2013, Irene Che and her 22-month-old daughter attended services at First Assembly. At some point during the service, the child was found submerged in the church’s baptismal pool. Although she survived, Che’s daughter suffered brain damage that left her unable to walk, talk, or feed herself. In her lawsuit, Che alleged that First Assembly was negligent in leaving the baptismal pool unguarded, and named the church, the DC, and the GC as defendants. Che argued that the DC and the GC were liable under the theory of respondeat superior, which establishes that a person or business is responsible for the damages caused by the acts or omissions of persons over whom it exercises control. La. C.C. art. 2317. The rule has been extended by the Louisiana Civil Code to include employers, who are responsible for the damage caused by their employees in the exercise of the functions within the scope of their employment. La. C.C. art. 2320, The DC and the GC filed a motion for summary judgment contesting the application of respondeat superior to the relationship between themselves and First Assembly. The trial court granted the motion and dismissed the DC and the GC as defendants; Che appealed.

The Second Circuit analyzed the relationship created by First Assembly’s contracting with the DC and the GC to gain the right to affiliate with the Church of God. The Court, noting that the single most important factor when determining whether an employer-employee relationship exists — a step necessary to invoke respondeat superior — is whether the “employer” has the right to control the work or actions of the “employee,” found that there was no evidence that the DC and GC maintained such right over First Assembly and its employees. The Court further analyzed the DC’s and the GC’s Constitutions and By-laws, concluding that those operating documents failed to establish a relationship between the two bodies and First Assembly that could support the invocation of respondeat superior. As a result, the Court affirmed the trial court’s dismissal of the DC and the GC as defendants in the case, leaving Che to pursue her negligence claim against First Assembly alone.

June 26, 2019

Louisiana Department of Transportation Avoids Liability in Multi-Car Pile-Up Case

by Berniard Law Firm

metal-1314941-1-1024x680 It is all too easy to forget just how dangerous driving can be. In addition to human factors such as sleepiness, being distracted, and stress, there is also the unpredictability of the road. Uncontrollable circumstances such as the weather or wild animals that dart into traffic can turn a regular commute into a devastating experience. But who is to blame when something unforeseeable, such as a force of nature, causes a highway catastrophe? This issue was addressed after a multi-vehicle accident on Interstate 10 near the Michael Boulevard exit in New Orleans on December 29, 2011.

Randall White’s car was the 25th of the 40 vehicles involved in the accident. White and his wife filed a lawsuit against the Louisiana Department of Transportation and Development (“DOTD”), the City of New Orleans, and the Little Pine Limited Partnership “Little Pine.” The Whites claimed that the pile-up was caused by thick fog combined with smoke from a marsh fire that had been burning since August 2011 on land owned by Little Pine. According to the Whites, the fog and smoke, in combination with faulty street lights, compromised visibility on the highway and caused the accident.

The DOTD filed a motion for summary judgment, a motion for judgment as a matter of law rather than on the merits of the case. La. C.C.P. art. 966. The DOTD argued that it had no notice of the fog in the area, had no responsibility for the street lighting issue, had no duty to protect the Whites from the fog or smoke, and it was shielded by governmental immunity. To support the motion, the DOTD relied on affidavits from DOTD engineers, the New Orleans Public Works Director, and the New Orleans City Council, as well documents such as the New Orleans Police Accident Report and the National Weather Service Report from the date of the accident. The trial court granted the motion and dismissed the Whites’ claims. In response, the Whites appealed to Louisiana’s Court of Appeal for the Fourth Circuit.

June 16, 2019

New Orleans Trip-and-Fall Case Highlights the Perils of Summary Judgment

by Berniard Law Firm

modernist-hospital-facade-1223549-768x1024 Generally, when an accident occurs on a property that is the result of the property owner’s negligence, it is presumed that the property owner is liable for the person’s injury. However, when liability does not exist, a motion for summary judgment is a procedural device that the defendant in a lawsuit can use to dismiss the plaintiff’s claim. Under Louisiana law, a motion for summary judgment will be granted if the pleadings and discovery show there is no genuine issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. See La. C.C.P. art. 966.

A trip-and-fall case offers an example of a defendant’s successful use of summary judgment. On October 11, 2007, James Dawson tripped and fell on the sidewalk near the entrance to Charity Hospital in New Orleans. He tripped on a crack in the sidewalk and suffered injuries as a result. Contending the State of Louisiana, as the owner of the hospital, was liable for failing to maintain the sidewalk, Dawson filed a lawsuit.

The State moved for a motion for summary judgment. In its motion, the State disputed Dawson’s allegation that it had authority over the sidewalk where his injuries occurred, arguing that without proof of authority, it could not be liable for Dawson’s injuries. See La. R.S. 9:2800. The State supported its motion with affidavits from Frederick L. Wetekamm, an engineer for the Louisiana Department of Transportation and Development and Robert J. Arnould, a maintenance supervisor for Charity Hospital. Wetekamm explained that the State was only responsible for maintaining its right-of-way on Tulane Avenue which began two blocks beyond the hospital. Arnold stated that Charity Hospital maintenance staff conducted no activities affecting the condition of the sidewalk in front of the hospital.