Articles Posted in Negligence

14-Picture-05-22-2019-1024x683When an unexpected accident occurs, it can be difficult to pinpoint exactly who is responsible for the injury. In the absence of direct evidence of a violation of a duty, the existence of multiple possible parties who might be responsible can preclude recovery. 

Mr. Baraki Tsegaye (the Plaintiff) filed a lawsuit against the City of New Orleans and Royal Engineers & Consultants, LLC (the Defendants) for negligence because of an injury suffered by the Plaintiff. When Plaintiff was outside the W Hotel on Poydras Street, New Orleans, a light pole owned by the City of New Orleans fell on him, thereby resulting in grievous injuries to his arm and other limbs. In response, the defendant Royal Engineers & Consultants, LLC filed a motion for summary judgement to dismiss the case against him on the basis that the alleged negligence was not directly caused by the Defendant. The Plaintiff urged the Civil District Court, Orleans Parish (the trial court) to dismiss the motion for summary judgment filed by the Defendants to the original petition applying the principle of res ipsa loquitor. 

What then is the doctrine of res ipsa loquitor? It simply is a Latin phrase referring to circumstantial evidence that the negligence of the Defendant is the probable cause of the injury suffered by the Plaintiff in the absence of other evidences to the contrary in the case. See Montgomery v. Opelousas Gen Hospital, 540 So. 2d 312, 319 (La. 1989). The trial court refused to consider the doctrine of res ipsa loquitor and granted a partial summary judgement in favor of Royal Engineers & Consultants, LLC.

26-Picture-05-22-2019-1024x687The doctrine of peremption can prevent someone from bringing legal action against someone should that action be brought after a certain amount of time. Peremption is a period of time fixed by law for the existence of a right. La.Civ.Code art. 3458. This period is defined by an applicable statute. Arthur Gibson’s case contains two instances of peremption extinguishing a party’s right to bring a claim.   

Arthur Gibson was performing manual labor in the hold of a ship in 2004. While at work, he suffered injuries to his neck and blamed the company who made the materials he was moving. This company was Louisiana Rice Mill (“LRM”). For the next ten years, he attempted to bring two civil actions against LRM for negligence and product liability. Mr. Gibson received workers compensation during this time, pursuant to the Longshore and Harbor Workers Compensation Act. He was represented by Raleigh Newman, for his civil claims, and J. Lee Hoffoss, Jr., who handled his worker’s compensation claim. 

However, after a visit to a neurosurgeon in 2010, Mr. Gibson’s workers’ compensation benefits were discontinued. Mr. Gibson was never informed of the suspension of his payments. He continued to receive regular payments from Mr. Newman, his attorney, during this time to help cover his living expenses. Therefore, Mr. Gibson was unaware that his workers’ compensation benefits had been suspended. He did not discover this until 2014, when his civil actions against LRM ran dry. Mr. Gibson filed a petition for damages against his attorneys. He claimed that they had performed legal malpractice by failing to appeal the suspension of his benefits. The trial court granted the defendant attorney’s exception of peremption, as the claim was brought more than three years after the alleged injury occurred. Mr. Gibson appealed the trial court’s decision.

addiction-betting-casino-5258-1024x684Providing preferential seating to disabled customers is a great service most businesses provide. This also means that the wheelchairs, walkers, and other items the disabled customers must be stored in areas that provide a safe walking environment for other customers. The controversy surrounding where it is proper or improper to put these items was illustrated in a case where a Baton Rouge Casino was sued by a woman who tripped over the walker of a disabled customer. With the help of an excellent attorney, the Casino was able to prove it seated a disabled gentleman properly when the woman sued the casino after her fall.

73-year-old Elvera Willig was eating dinner a Baton Rouge Casino, the L’Auberge Casino & Hotel (“the Casino”) on New Year’s Day 2014. While making her 4th trip back from the buffet, she tripped and fell over an unidentified man’s walker that was slightly sticking into the pathway. As a result of the fall, Ms. Willig fractured her hip.

It was later determined that the unidentified man was directed to the seat by an employee of the Casino. Ms. Willig brought a lawsuit against the Casino. In the lawsuit, she claimed that the Casino was negligent and failed to protect guests; the Casino was negligent and sat the patron inappropriately close to the walkway; and the Casino negligently sat the unidentified man and his walker in a place where other customers could trip on the walker.

adult-chores-flora-1453499-1024x683If you get hurt due to someone else’s negligence and they agree to cover the costs, how much time do you have to sue for damages? According to Louisiana’s Second Circuit Court of Appeal, you have one year from when the injury occurred or when prescription is interrupted. Typically, prescription refers to land rights, but in Mr. Bethley’s case, it concerns the defendant’s agreement to pay his medical bills.

In July 2012, Mr. Bethley and his father were cutting tree limbs when Ms. Simmons came over and asked to use the saw. Bethley allowed Simmons to try the saw for about fifteen minutes, and then asked him to stop. With the saw in hand, Simmons turned towards Bethley and cut his ankle, which began to bleed to the point where Bethley needed medical attention. On the way to the hospital, Simmons said he would pay for the medical bills as long as Bethley did not tell his wife about it. Simmons paid $180 directly to the hospital, but then stopped making the payments about a year later

In April 2015, Bethley filed suit against Simmons requesting damages for medical bills, lost wages, court costs and pain and suffering. In court, Bethley’s father testified about incident and told the court that Simmons agreed to “take care of it” and asked that his wife not be told. Simmons testified that he didn’t intend to cut Bethley, but Bethley got in the way. He denied promising the pay the medical bills but said he would help if he could. He agreed that he was at fault for the incident, but also contended that the statute of limitation had run out. He also filed an answer stating that over a year had passed since the injury, so the Bethley lost the right to sue. The trial court ruled in favor of Bethley, awarding him damages for pain and suffering, medical bills plus interest, and lost wages. Thereafter, Simmons appealed.

garden-gardening-grass-589-1024x680Can a store, like Lowe’s or Home Depot, be held liable for injuries resulting from the sale of the wrong part or product? In Ms. Johnson’s case, the answer was no. Sharon Johnson’s lawn mower needed a new spark plug, so she went to the Lowe’s in Shreveport to find one. Because Ms. Johnson was unsure about the type of spark plug she needed, she asked a sales associate to help her. The sales associate researched the spark plug that she needed, she purchased it, and returned home to install the part.

When Ms. Johnson arrived home, she installed the part on the mower even though she thought the spark plug was ‘funny looking’. When she started the mower, the cable jerked violently, and she was struck by the crank handle. She claimed to experience pain that shot through her back and neck and spread down the right side of her body. Her hands eventually became numb. She went to a doctor for the numbness. The doctor stated that her injury made her preexisted carpal tunnel syndrome systematic.

She sued Lowe’s for negligence. Lowe’s answered the petition, denying all allegations. They moved for summary judgment, asserting that Johnson failed to produce any evidence to establish liability by failing to prove cause-in-fact. The trial court agreed with Lowe’s and granted summary judgement. Johnson appealed the grant of summary judgment. In Johnson’s appeal, she emphasized that a genuine issue of material fact existed as to whether she was sold the wrong spark plug that led to her injuries.

adults-businessman-close-up-1056553-1024x666When representing clients, attorneys walk a fine line between providing adequate services for their clients and being potentially sued by their clients for legal malpractice. While there are legitimate cases of malpractice among attorneys, there are also allegations of malpractice that simply lack merit and are based upon anger from a dissatisfied client.  

Such was the case for Carlos Hardison, who filed a legal malpractice lawsuit in the New Orleans Parish against George W. Byrne Jr., an attorney at Ungar & Byrne, A Professional Law Corporation (“Byrne”). Hardison, a seaman who sustained injuries to his foot while on the job and had to undergo a partial leg amputation, filed a maritime personal injury lawsuit against his employer, Abdon Callais Offshore (“ACO”) because of injuries sustained while at sea. After receiving a $90,000 settlement and what he felt to be an adverse judgment, Hardison filed his lawsuit against Byrne for malpractice. 

Hardin alleged that as a result of Byrne’s malpractice, he was given a settlement option of $90,000 as opposed to an amount as high as $10 million. Hardin also alleged that he did not give valid consent to the proposed settlement by the court and that he was also under duress at the time of giving consent.

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.

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.

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.

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.