Articles Posted in Negligence

school-bus-1431472-1024x609Entrusting a child to the care of a school bus requires a certain amount of faith that they will arrive at the correct destination, safely.  For any parent or guardian this evokes a certain amount of anxiety. For a parent with a special needs child, this act of faith likely garners even greater angst. Unfortunately, one Lafourche Parish parent’s fears materialized when her special needs son was struck by a car at his bus stop one afternoon. Whether the Lafourche Parish School Board (“LPSB”) could be held responsible became an issue for a jury in this recent lawsuit.   

Thibodaux High School student Diamonte Bolden was hit by a car after exiting his school bus one afternoon in December of 2012.  Although only in ninth grade, Diamonte was seventeen years old at the time of the accident. He was in the special education program and contended with a variety of learning disabilities including language delays.  Diamonte’s bus stop was at an intersection located about half a mile from his home. The availability of sidewalks or other safe walking space along the walking route from bus stop to house was in dispute. Diamonte’s mother filed a lawsuit against LPSB, the driver of the car, and various others.  At issue in the lawsuit against LPSB specifically was whether LPSB could be held liable for failing to reasonably supervise a student in light of the bus stop location and whether the accident was foreseeable.

Louisiana law provides that a school board owes a duty of reasonable supervision over its students.  See Wallmuth v. Rapides Parish School Bd., 813 So.2d 341, 346 (La. 2002). Liability for inadequate supervision requires a finding of negligence plus a connection between the negligence of the school board and the damages suffered by the student. The Louisiana Board of Elementary and Secondary Education has the authority to promulgate regulations relating to the operation of school buses pursuant to La. R.S.17:164.

helicopter-1450413-2-683x1024For a negligence lawsuit to have any chance of survival, an essential element is to show the plaintiff had damages. Often these damages are obvious physical injuries.   Sometimes however, damages claimed are for emotional distress. Due to its intangible nature, emotional distress can be extremely difficult to prove and a lawsuit for such damages can be equally difficult to maintain.  In a recent case out of the Parish of Lafayette, a Louisiana man failed to prove all the necessary elements to sustain his emotional distress lawsuit despite the lawsuit centering on a helicopter crash.

Plaintiff Hayward Allen worked on an offshore rig owned by an oil company.  Mr. Allen took a helicopter to his job site. Defendant PHI, Inc. (“PHI”) owned and operated the helicopters delivering the employees to the rig. In December 2009, one of PHI’s helicopters rolled over while dropping off some passengers on the rig where Mr. Allen was working. No one was injured in the accident. Mr. Allen did not even see the incident because he was sixty feet below the helipad when it occurred. Because of this incident however Mr. Allen claimed he could no longer work because he was now too afraid of helicopters. Mr. Allen alleged to be suffering from chest pains, sleep problems, anxiety and elevated blood pressure from the emotional distress brought upon him from the helicopter incident. Mr. Allen filed a lawsuit in the Judicial District Court for the Parish of Lafayette. The District Court granted a directed verdict in favor of PHI because Mr. Allen failed to offer any evidence of PHI’s liability or negligence.   

A directed verdict is granted only when the evidence overwhelmingly points to one conclusion.  See Carter v. Western Kraft Paper Mill, 649 So.2d 541, 544 (La. Ct. App. 1994).  The facts must so strongly support judgment in favor of one party that the court must determine reasonable people could not reach a contrary verdict.  Directed verdicts do not require the assent of the jury. See La. C.C.P. art 1810.  To have any chance at success in a negligence claim, including an emotional distress claim, a plaintiff must show that the defendant was the cause of the plaintiff’s injuries.  See La. C.C. art 2315.6.  

police-car-1414442-1-1024x683Car accidents can have long-lasting effects that are not immediately apparent at the time of the accident. Victims may initially report that they do not suffer from pain, only to be struck with it days, weeks, or even months later. This pain can have debilitating effects on one’s current and future career, as well as on one’s mental well-being and relationships with others. If a victim is not careful with the doctor he or she chooses or the actions he or she takes, a jury may dispute the damages (money) a victim may be entitled to.  If a personal injury case makes it to court, it is best to reach the ideal verdict at the trial court level, rather than at the appeals level. The following case illustrate this.

Sheila Tate and her friend Joyce Lee were driving down an intersection on Scenic Highway and 68th Avenue, when Baton Rouge Police Officer Kenney (operating a vehicle owned by the City of Baton Rouge) collided with Tate’s vehicle. Tate’s child, Jordan, and Lee’s child, Imiricle, were also in the car during the collision. The collision resulted in multiple injuries.

The initial emergency room assessments for the Tate and Lee each reported no (or minimal) pain. Yet, Tate’s treatment involved a variety of doctors, where she underwent a series of medications and physical therapies before ultimately being given a “pass” by one of her last doctors to resume work.  The same was said of Lee, who went through a series of doctors before she eventually stopped complaining of pain. Tate and Lee filed a lawsuit, and on behalf of their respective children, seeking damages stemming from the car collision.

12-email-03-03-2019-pictureLife deals some people a tough hand. For Geneva Fils, a Louisiana infant in the foster care system, a car crash and severe injuries followed by a lengthy lawsuit added to her list of problems.

The Louisiana Department of Social Services (now known as the Department of Children and Family Services) took Geneva away from her biological parents following her birth. Several months later, on March 22, 2006, Geneva was in a car along with her foster parent, Mayola Calais and the driver Jennifer Hayes. Charles Guidry was driving in the opposite direction when he crossed the centerline, striking Geneva’s vehicle head-on. Geneva, who purportedly was improperly restrained in the vehicle, suffered a fractured skull among other serious injuries. Geneva’s biological parents filed a lawsuit on behalf of themselves and Geneva against the driver Guidry, her foster parent Calais, the driver Hayes, the State of Louisiana through the Department of Children and Family Services, and their insurance companies.

This particular decision came from an appeal of a motion for partial summary judgment involving a Louisiana statute which limited damages to $500,000 for any division or agency of the Louisiana government held liable for personal injury damages. See LSA-R.S. 13:5106(B)(3)(c) (2017). Plaintiffs argued that the individual defendants do not enjoy the protection of the damages cap, because unlike the Department of Children and Family Services, they are not a “state agency.” See LSA-R.S. 13:5102 (2017). The judge granted the Department’s motion as it concerned the Department’s liability for its negligent actions, but denied the motion regarding the Department’s vicarious liability for the actions of its agents. Both the Department and the plaintiffs appealed.

37-Email-03-03-19-1024x986Generally, individuals expect that when on the premises of a public entity, the land has been safely maintained and there is a low risk of becoming injured. If an individual did become injured, he or she would expect to be reasonably compensated for any injuries. However, in Louisiana, premises liability law differs from the law that is applied when suing a private landowner. As this case shows, establishing that a defect causes an unreasonable risk of harm is a difficult obstacle to overcome when suing a public entity and can leave injured parties with no compensation for their injuries.

A man who was seriously injured on the property Ville Platte Housing Authority (VPHA) was not allowed to recover damages for his injuries. Marcushawn Smith, the injured man, was walking on the grass when he fell and seriously injured his ankle in a six inch wide and more than four-inch deep hole on VPHA’s property. Mr. Smith filed a lawsuit against the VPHA, the Louisiana Housing Council, Inc., and FARA Insurance Services, Inc. to recover compensation for his injuries. The Louisiana Housing Council and FARA Insurance were later dismissed from the case. At the trial court in Lake Charles, Louisiana, the judge decided the hole that Mr. Smith fell in did not create an unreasonable risk of harm, dismissing Mr. Smith’s claim against VPHA. Mr. Smith appealed this judgment to the Third Circuit Court of Appeal, arguing that because he fell and was seriously injured, the trial court committed legal error by finding that the hole did not create an unreasonable risk of harm.

On appeal, the judge relied on a 2012 Louisiana Supreme Court case which stated that states that in order to recover for damages, the injured party must establish five facts: (1) the public entity had ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the public entity was or should have been aware of the defect; (4) the public entity failed to fix the defect in a reasonable time; and (5) the defect is the cause of the complainant’s injury. See Chambers v. Village of Moreauville, 85 So.3d 593, 597 (La. 2012). Usually, as was the case here, the second criteria is the hardest for an injured party to overcome.

39-post-photo-1024x683Most customers do not expect to be hurt by store merchandise when they go shopping. Yet, each year dozens of individuals are injured due to “falling merchandise.” The following Louisiana First Circuit Court of Appeal (“the Court”) case is a perfect example of what happens when an individual seeks legal action for being injured by a store’s falling merchandise.

Darry Hughes and his co-worker sought to purchase a plastic storage bin from Home Depot for their East Baton Rouge office. Inside the store, Hughes was injured when he removed a plastic bin from a shelf using both hands and was unable to stop another bin behind it from falling onto his face. Hughes brought a lawsuit against Home Depot U.S.A. (“Home Depot”) for the injuries he sustained from the alleged incident on the grounds that the bin was unstably stored.

Home Depot motioned the trial court for summary judgment, claiming that Hughes could not prove he did not cause the bin to fall upon himself and that he lacked evidence to show Home Depot was negligent or caused the injury he received. To show their purported innocence, Home Depot called in a twelve-year employee of the company, who testified that in all of his time there he had never heard of or seen an incident report where a product had fallen from a shelf.

empty-hall-2-1545642-1-1024x607For a plaintiff to prove a negligence case, he or she must prove, among other things, that the defendant owed a legal duty to the plaintiff. See La. C.C. art. 2315 (2016). Often, this element of negligence is overlooked and taken for granted which can lead to dismissal of the plaintiff’s case. A recent Louisiana Court of Appeal case out of the Third Circuit illustrates the importance of proving duty in a negligence case.

The case centers around the suicide of Lelia Shelvin while in Lafayette Parish County Sheriff custody. Sheriff Mike Neustrom arrested Ms. Shelvin for aggravated battery with a dangerous weapon. Sheriff Neustrom then took Ms. Shelvin to Lafayette Parish Correctional Center. While at the center, Ms. Shelvin committed suicide. Ms. Shelvin’s estate filed a lawsuit against Sheriff Neustrom, alleging that Sheriff Neustrom was at fault for Ms. Shelvin’s suicide.

At trial, Sheriff Neustrom filed a motion for summary judgment, arguing that he had no duty to Ms. Shelvin because her suicide was a “sudden and completely unpredictable event.” A motion for summary judgment asks the court to decide a case before going to trial, so long as all material facts are agreed upon by the parties. The trial court granted Sheriff Neustrom’s motion for summary judgment, ruling in favor of Sheriff Neustrom. Ms. Shelvin’s estate, disagreeing with the trial court, appealed the decision.

horse-nose-1575359-1024x681Think before you act. We have all heard this advice. But, thinking before you act can be difficult. Sometimes, emotions and the heat of the moment prompt you to react before you think. A common example of this occurrence is in road rage altercations. It is easy to get upset when you get cut off or a person pulls out in front of you. But the legal ramifications of acting on those emotions can be dire. A recent case out of the First Circuit Court of Appeal for the State of Louisiana illustrates one type of legal consequence that could happen when emotion turns to violence.

It all began in Ascension Parish when Clifford Barr, driving his pickup truck, attempted to make a left turn into a parking lot. Mr. Barr’s left turn was blocked by Ray Schexnayder, who was trying to make a left turn out of the parking lot’s entrance. As Mr. Barr attempt to make the left hand turn into the parking lot, Mr. Schexnayder simultaneously exited the parking lot, turning left as well. Both vehicles narrowly escaped hitting each other. After the near miss, both Mr. Barr and Mr. Schexnayder started exchanging words. This conversation quickly became heated. Mr. Barr, after exchanging words, continued into the parking lot. Mr. Schexnayder followed Mr. Barr into the parking lot. While in the parking lot, Mr. Schexnayder exited his pickup truck, proceeded to Mr. Barr’s vehicle, and then stuck his head through the open window of Mr. Barr’s vehicle. At this point, the facts are unclear. Both Mr. Barr and Mr. Schexnayder claim that the other person threw a punch. Regardless of who punched first, a fight ensued. In the fight, Mr. Barr sustained a nose injury when Mr. Schexnayder bit Mr. Barr on the nose.

Mr. Barr filed a lawsuit against Mr. Schexnayder for damages he sustained in the parking lot altercation. At trial, the trial court awarded damages in the amount of $25,005.00 to Mr. Barr. The trial court found Mr. Barr to be a more credible witness and believed Mr. Barr’s story that Mr. Schexnayder threw the first punch. Mr. Schexnayder, disagreeing with the trial courts determination, appealed its decision.

tenis-1571373-1920x1440-1024x768When bringing a personal injury lawsuit a plaintiff must prove that the defendant in the lawsuit caused the injury. Often, when an injury involves two parties, the question of who caused the injury has a relatively straightforward answer. However, problems arise when the circumstances surrounding the injury involve multiple parties. A recent case out of the Louisiana First Circuit Court of Appeal illustrates the complexity of proving who caused an injury when multiple parties are involved.

Plaintiff William Bourg, an employee of Shamrock Management LLC (“Shamrock”), a Houma, Louisiana company, was injured while helping move an aluminum generator cover. The cover, which weighed 2800 pounds, was delivered to Shamrock’s shop by Cajun Cutters, Inc (“Cajun Cutters”). Mr. Bourg and a Cajun Cutter’s employee, Russell Felio, attempted to move the generator cover into Shamrock’s shop. To facilitate the delivery of the generator cover, Mr. Felio decided to use a large forklift that he was unauthorized to use. While using the forklift, Mr. Felio accidentally flipped the generator cover on its side, which fell on Mr. Bourg’s left foot, crushing it. The injury required Mr. Bourg to undergo two surgeries.

Mr. Bourg sued both Cajun Cutters and Mr. Felio for his foot injury. In a personal injury lawsuit, the jury is required to determine who is at fault for the plaintiff’s injury and allocate a percentage of fault onto each party member, including the plaintiff. In Mr. Bourg’s case, the jury decided that Mr. Bourg and Shamrock were 90% at fault for the accident and that Cajun Cutters and Mr. Felio were 10% at fault. Mr. Bourg filed a motion for a judgment notwithstanding the verdict (“JNOV”). A JNOV is a procedural device where the trial court may correct a jury verdict by modifying the jury’s findings of fault or damages, or both. La. C.C.P. art. 1811 (2016). The trial court granted the JNOV and reallocated fault 50% to Bourg and Shamrock and 50% to Cajun Cutters and Mr. Felio. Cajun Cutters and Mr. Felio appealed the trial court’s decision.

rifle-scope-1-1576601-1-1024x683What do injured parties do when products are defective and unreasonably damaged? In Louisiana, injured parties may file lawsuits against a manufacturer for damages caused by his products. The following case out of the Western District of Louisiana describes the Louisiana Products Liability Act (“LPLA”).

In mid-2011, Toby Arant purchased two 1” ratchet straps at a Wal-Mart store, manufactured by Tahsin Industrial, Corp., USA (“Tahsin”). On September 9, 2012, Mr. Arant used the straps to secure a tree for hunting. Mr. Arant was seriously injured after falling 20 feet to the ground because the tree straps failed when he climbed onto the tree stand.

Mr. Arant filed a lawsuit in Louisiana state court against Wal-Mart Stores, Inc. (“Wal-Mart”) and Tahsin under the LPLA, alleging that the straps were defective and unreasonably dangerous. More specifically, he claimed that the straps were defective in construction and had an inadequate warning. Wal-Mart and Tahsin removed the case to federal court and filed a motion for a summary judgment. A motion for summary judgment is properly granted if there is no genuine issue of material fact. The motion was granted and Mr. Arant appealed the district court’s dismissal of his products liability suit to the U.S. Fifth Circuit Court of Appeal.