Negligence

January 15, 2017

Multi-Million Dollar Judgment Affirmed On Appeal

Once a court rules on a motion or a jury verdict is delivered, the losing party faces an uphill battle in getting a reversal. If you are party to a lawsuit, be sure to consult with an attorney who will help you assess the risks of a lawsuit and the best way to move forward. A good attorney will make sure that your interests are accounted for and that if you go to trial, you get it right the first time. An attorney should work hard for you, be diligent and thorough, and get you the award you deserve. In the case of Barry and Lori Pennison, they got just that: a thorough and diligent attorney who helped them get a just award.

Recently, the First Circuit Court of Appeal upheld a decision of the Trial Court and jury verdict that awarded the Pennisons a total of $4,200,000. This judgment was against the defendants, James Carrol, Jr. of Frisco Construction Company, The Gray Insurance Company and GEICO General Insurance Company.

Barry Pennison was injured when the defendant, James Carroll, Jr., who was working on the job, turned left into his company’s industrial yard on La. Highway 57 in Terrebonne Parish. Due to the accident, Barry was severely injured and unable to work or enjoy the life he had become accustomed to. The facts of the case showed that Mr. Carroll did not signal when he turned and that he did not yield to Barry, who was on a motor cycle at the time and had the right of way. Barry was driving the speed limit and honked at Mr. Carroll in his pick-up truck to no avail. Mr. Carroll did not stop. Emile Hotard, Jr., a witness, noted that everything happened fast, but that neither he nor Carroll saw Pennison coming.

January 11, 2017

Louisiana Court of Appeal Finds In Favor of a Drug Company In Products Liability Lawsuit

by Berniard Law Firm

We live in an age in which modern medicine can do wonders for people suffering from various illnesses and conditions. These drugs are designed to provide patients with the ability to live healthy and fulfilling lives. However, there are always side effects to consider when taking any drug. Each patient should discuss these possibilities with their doctor and make an educated decision whether to take the drugs or not. Even after this “due diligence” there can still be unintended consequences from certain drugs. Through no fault of their own, after having weighed the decision and exploring all of their options, patients may find themselves in much worse condition than what they were in before taking the drug. In cases such as these, a good products liability attorney is essential to securing the relief you’re entitled to.

This particular case is set in Shreveport, Louisiana. GlaxoSmithKline (GSK), the defendant, is a drug company who manufactures and markets Paxil, a selective serotonin reuptake inhibitor, or SSRI, used to treat depression. The plaintiff, Cinda McLaughlin, began taking Paxil in 2003 for depression. In June of 2010, Cinda had two valves replaced in her heart. Her doctor alleged that her heart valves showed damage that was caused by exposure to increased levels of serotonin. Cinda took Paxil and its generic equivalent, Paroxetine, for years prior to her heart surgery. These were the only drugs that she took that could account for the higher serotonin levels.

Shortly after Cinda’s surgery, she met with an attorney to discuss her options. Her attorney then met with her doctor regarding product liability issues. The doctor said he had no knowledge that Paxil caused abnormalities of the valve, but he did not dismiss altogether that it was a possibility. Their meeting concluded with the doctor promising to document any evidence that could have shown Cinda’s drug induced valve failure.

December 24, 2016

What Happens When Nobody Witnesses Your On the Job Injury?

by Berniard Law Firm

worker-sculpture-1-1564773 In workers’ compensation cases, the employee has the burden of proving that an on-the-job accident occurred. He or she must do so by a preponderance of evidence. Generally, an employee can do this by presenting witness testimony and documentary evidence. But what happens when there is no witness to the alleged accident? A recent case from the Louisiana Third Circuit Court of Appeal discusses how an employee can establish his or her workers’ compensation claim when there is no witness to the alleged on-the-job injury.

Ronald Sorile worked for Lott Oil as a fuel truck operator. He alleged that on February 26, 2013, he injured his back while on the job. Nobody witnessed the accident. He filed a Disputed Claim for Compensation Form seeking indemnity benefits, medical expenses, penalties and attorney fees from Lott Oil. Lott Oil denied that any work accident occurred and that his claimed injury was related to his employment. It also asserted that Mr. Sorile forfeited any potential benefits because he made false statements for the purpose of obtaining a higher reimbursement. The Workers Compensation Judge (“WCJ”) found that Mr. Sorile sustained an injury in a work related accident and awarded him total temporary disability (“TTD”) benefits, supplemental earning benefits (“SEB”), and medical benefits. It also ruled that Mr. Sorile committed no fraud, finding that Lott Oil failed to prove that Mr. Sorile made false statements for the purpose of obtaining benefits. Lott Oil appealed.

In its first ground of appeal, Lott Oil argued that the WCJ erroneously found that Mr. Sorile met his burden of proving the existence of an on-the-job accident.

December 22, 2016

In Louisiana Can A Company Be Held Responsible For Employee’s Car Accidents?

by Berniard Law Firm

employee-entrance-1-1189151 If you have been injured in an automobile accident, you deserve to be properly compensated for your injuries. Sometimes, unfortunately, the person who caused the injury may not be able to adequately compensate you. This does not mean you are out of luck. If the person responsible for your injury caused it while working as an employee, the employer may be liable as well. That is why is its extremely important to hire a good lawyer who will apprise you of all avenues of recovery under the law. In a recent case, the Louisiana Second Circuit Court of Appeal discusses an employer’s liability for an employee’s accident.

In 2011, Guindolyn Hooper was involved in a four car accident in Shreveport, Louisiana. The crash was caused by a driver who was texting at the time of the accident. The driver of the car that caused the accident, Wayne Austin, just left the site of his employment and was allegedly texting his boss about job-related strategy when he crashed into Mrs. Hopper from behind. For this reason, Mrs. Hooper and her husband added Venator, Austin’s employer as a defendant, seeking to hold them vicariously responsible for Mrs. Hooper’s injuries.

Vernator sought to have the case dismissed and moved for summary judgment. Summary judgment seeks to have the case dismissed when there is no issue of material fact. Here, the Trial Court granted summary judgment in favor of Venator, finding that even if Austin was an employee of Venator, he was not in the course and scope of his employment when he caused the accident. Mrs. Hooper appealed. The Court of Appeal reversed the Trial Court, finding that there were genuine issues of material fact as to whether Austin was a Venator employee and whether he was acting in the course and scope of his employment at the time of the accident.

December 17, 2016

Court of Appeal Discusses Louisiana’s Presumption of Negligence in Automobile Accident Cases

by Berniard Law Firm

ambulance-1442004 In Louisiana, the law presumes a driver negligent when he or she leaves a travel lane and strikes another vehicle. This presumption stems from the legal obligation all motorists have to maintain control of their vehicle. In personal injury cases, this presumption overrides the normal burden of proof which lies on the plaintiff. In order to defeat the presumption of negligence, the defendant must show that he or she was not guilty of any negligence, however slight. A recent case of the Louisiana First Circuit Court of Appeal considered the presumption of negligence in automobile accident cases.

On August 3, 2009, a multi-vehicle accident occurred on interstate 10 in East Baton Rouge Parish near the Mississippi River Bridge. Loren Arey was driving an eighteen wheeler in the middle lane of the intersection. Traffic in the two lanes beside him started to slow down. Another unknown driver of a white vehicle switched into the middle lane directly in front of Mr. Arey. In order to avoid hitting him, Mr. Arey swerved right, hitting a pickup truck. It caused the pickup to hit the rear of Leandro Carias’ vehicle. The white vehicle shifted back into the left lane and continued driving.

Mr. Carias filed a lawsuit against Mr. Loren and several co-defendants, including his trainer, Mr. Rickie Williams, the driver of the pickup truck, and the drivers’ respective insurance companies. Mr. Arey, Mr. Williams, and C.R. England, Inc. the owner of the eighteen wheeler (collectively referred to as “the defendants”) filed motion for summary judgment seeking to have the claim dismissed before trial. The defendants’ motion for summary judgment argued that the accident was caused by the white “phantom vehicle,” and that there was no evidence as to any of the defendants’ liability. The Trial Court granted the motion for summary judgment, dismissing all claims against all Defendants. Mr. Carias appealed.

December 16, 2016

Louisiana Man Suffering from Broken Foot on the Job Seeks Recovery Using Intentional Tort Claim

by Berniard Law Firm

just-a-forklift-1439915 If your employer is knowingly putting you in harm’s way and you suffer an injury, you may have an intentional tort claim against your employer. In Louisiana, remedies against an employer for on-the-job injuries are limited to cases of intentional acts, rather than negligence. In a recent case the Louisiana First Circuit Court of Appeal discussed what is required to succeed on a tort claim against an employer.

On July 24, 2012, Adrian Cador was injured while on the job at KPAQ Industries. Mr. Cador’s foot was run over with a forklift operated by another employee. Mr. Cador and the other employee were unaware that the backup alarm on the forklift was not working. According to Mr. Cador, KPAQ knew about the malfunction.

Mr. Cador filed a lawsuit in February of 2013 alleging that the company that rented the trucks were negligent because they had knowledge, or should have had knowledge, that the alarm was not functioning. In July of 2013, Mr. Cador amended his petition naming KPAQ, his employer, as another party to the lawsuit. In this amendment Mr. Cador alleged that KPAQ knowingly and intentionally subjected him to danger with knowledge that injury was substantially certain or at least a possibility. KPAQ responded by filing a peremptory exception of no cause of action, arguing that Mr. Cador’s claims were barred by the Louisiana Workers’ Compensation Act.

December 8, 2016

Louisiana Medical Malpractice Lawsuit Brought by Deceased’s Family Shows Importance of Filing in a Timely Manner

by Berniard Law Firm

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If you are affected by what you believe is medical malpractice, a clock starts ticking the minute you discover or are put on reasonable notice of your injury. You only have a very limited amount of time to actually file a medical malpractice lawsuit, so it is extremely important to consult an attorney as early as possible in the process so that you do not miss your available window for a malpractice claim. These deadlines are strict and missing yours will leave you with very few options for how to move forward, so if you suspect any medical malpractice, you should visit an attorney right away.

In Louisiana, the law regarding medical malpractice states that you have one year to file a claim from the date of discovery of the alleged act, omission, or neglect associated with your injury. See LA Rev Stat 9:5628. If you do not file within that year, your opponent can seek an exception of prescription, meaning that the court will deny your case because you waited too long to file.

In this case, Mr. Hume was suffering from many independent health problems when he entered a nursing home for care. Prior to the nursing home, his wife had been his primary caretaker. Mrs. Hume found Mr. Hume just one month after his admittance lying on the floor of the facility after having been denied the diabetic treatment that he needed. The nurse refused to give Mr. Hume his prescribed medication, on the mistaken belief that it was not the correct prescription. That same day, Mrs. Hume removed Mr. Hume from the nursing facility and after a visit to the emergency room, a serious unrelated medical issue caused Mr. Hume to be placed in home hospice care. After Mr. Hume’s death, Mrs. Hume and her children requested a medical review of the doctor and facility Mr. Hume had stayed in; the medical review panel found that the nursing home didn’t meet the necessary standard of care, because they failed to inform a physician of a change in Mr. Hume’s urinary output.

December 5, 2016

Three-Car Collision in Lafayette Parish Results in Defendant That Can’t Shake the Presumption of Negligence

by Berniard Law Firm

$arriving-with-the-refraction-4-1573537-1024x768$ In certain kinds of car accidents there is a rebuttable presumption of negligence afforded to a party involved. In a collision that happened in Lafayette Parish, The Louisiana Third Circuit Court of Appeals decided that the presumption of negligence remained intact and the other involved parties could not be assigned fault.

The case arises out of a three-car collision which happened in Lafayette, Louisiana, on March 16, 2012. For this decision, the plaintiff Linda Leblanc was appealing a summary judgment ordered in favor of the defendants, Abbie Norris and Louisiana Farm Bureau Casualty Insurance Company. The Three drivers involved where plaintiff Leblanc, defendant Norris, and Brody Bouzon. Leblanc stopped at a red light with Norris stopping behind her. Bouzon who was behind Norris failed to stopped and rear-ended Norris’ car pushing her into the rear of Leblanc’s vehicle. Bouzon was given a ticket for careless operation of his vehicle at the scene of the accident. Leblanc claims that she sustained physical pain and mental anguish from the accident stemming from Norris and Bouzon’s negligence and she filed her lawsuit against the defendants along with Bouzon and his insurer seeking medical damages and lost wages. Norris and her insurer Farm Bureau filed a motion for summary judgment on her liability based on several allegations coming down to Bouzon having the presumption of negligence. The District Court granted the motion for summary judgment and the Court of Appeals affirms.

To successfully motion for summary judgment the party asking for the motion must show that there is no genuine issue of material fact and that the party is entitled to the judgment as a matter of law. The motion is granted if facts and records of the case show these two things. With a summary judgment a court can decide certain issues of a case in advance of the trial to efficiently dispense with those matters.

November 29, 2016

Court Sets High Bar for Burden Of Proof For Slip and Fall Victim In Avondale

by Berniard Law Firm

parking-space-1441053-1-1-1024x768 Not all slip and fall cases are successful as the burden of proof on the victim can be high in Louisiana. In a recent opinion out of the Louisiana Fifth Circuit Court of Appeals the trial court’s decision to award $20,000 to Carolyn Bennette, who slipped and fell at the Brother’s convenience store and gas station in Avondale, Louisiana was reversed. As discussed below, the appellate court stated that the defendants were correct in arguing that the trial court held the defendants to an improper burden of proof. In order to prove a slip and fall claim, a victim (here, the Plaintiff Ms. Bennette) has the burden to produce direct evidence supporting her claim, and the Appellate Court found that Ms. Bennette failed to prove three aspects of the claim.

On October 7, 2010, Ms. Bennette, after buying lottery tickets, walked through the parking lot towards her car and slipped on a piece of wood that was protruding from an expansion joint in the concrete at the Brother’s Avondale convenience store. The piece of wood lodged into her shoe causing her to fall and break her elbow, among other injuries. Ms. Bennette alleged that Brother’s was negligent in failing to maintain its property in a reasonably safe condition, failing to warn customers about the allegedly dangerous condition, and allowed an unsafe and dangerous condition to exist after proper notice and/or constructive notice of same. The jury at the trial, where Ms. Bennette was the only witness, rendered judgment in Ms. Bennette’s favor to the tune of $20,000.

A store owner is not liable for every accident that occurs on the premises. See Harrison v. Horseshoe Entertainment, 36 (La. App. 2 Cir. 8/14/02); 823 So.2d 1124. Slip and fall claims are governed, in Louisiana, by La. R.S. 9:2800.6, the statute explaining liability of merchants for “slip and fall” claims by customers on store premises. Importantly, while Louisiana law requires merchants to exercise reasonable care to protect persons who enter the establishment, to keep the premises safe from unreasonable risks of harm, and to warn of known dangers, the merchant need not prove anything to win the case. It is up to the injured person who is bringing the suit to produce evidence in support of the claim. The victim must prove the elements of their case, specifically: 1) that the merchant gave a reasonable effort to keep the premises free of any hazardous condition which may reasonably give rise to damage, 2) that there was an unreasonable risk of harm that was reasonably foreseeable, 3) that the merchant either created or had actual or constructive notice of the condition prior to the accident, and 4) that the merchant failed to exercise reasonable care. Proving all of these elements can be challenging for slip and fall victims, as we saw in this case.

November 14, 2016

Injured by Revolving Door at a New Orleans Hotel, Who is At Fault?

by Berniard Law Firm

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We have all had that moment in a revolving door when the door seems to be moving just a bit too fast. You do your best to keep up but the back of the door knocks into your foot. No harm, no foul when you get a little bump on your foot. But what if an entire glass pane fell off the door and pinned you into the other side of the door. I would expect you would be pretty upset and you would want to figure out who is responsible for your injuries. Is it the hotel, the door manufacturer, the installer of the door? The following case out of New Orleans sheds some light on who might be responsible when a revolving door almost turned into a death trap for one unfortunate man.

In 2004 while working as a courier Huey Madison had deliveries to make at the Inter-Continental hotel in New Orleans, Louisiana. Huey alleged while exiting the revolving door of the Hotel the door panels collapsed and pinned him between the glass causing him injuries. Huey filed a lawsuit claiming damages resulting from the hotel’s failure to properly install, monitor, and repair the revolving door. Intercontinental answered Huey’s lawsuit, denying all claims while also asserting a third-party demand against Carolina Door, claiming Carolina Door had total control over the inspection and repairing of the door in question. Huey subsequently filed an amended petition with Carolina Door listed as a direct defendant.

Both the Intercontinental Hotel and Carolina Doors sought to escape liability by filing motions stating each were solely responsible for Huey’s injuries. These motions are called summary judgments and are standardly filed in cases such as this. If the party who files a summary judgment motion can demonstrate that there are no facts in dispute and according to the law they are not responsible they can evade responsibility. In response to those motions, Huey filed a memo in opposition and attached the affidavit of an expert witness in the field of construction. Huey argued the expert affidavit provided facts in dispute that would defeat defendants’ motion for summary judgment. Carolina Door subsequently filed a motion to strike Huey’s expert affidavit, arguing the introduction of an expert witness was too late and violated court orders. At the hearing on the motions for summary judgment and motion to strike, the trial court held Huey failed to produce factual support concerning negligence by Carolina Door, and thus granted Carolina Door’s motion for summary judgment. The trial court also denied Carolina Door’s motion to strike without much explanation.