Articles Posted in Negligence

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law-offices-1477311-1-1024x743When something goes wrong in a legal case, how long does a party have to make their claim? Louisiana has statutes concerning the time frame in which a party has to bring a claim against an attorney for malpractice and the courts will uphold the time limitation depending on the facts of the case.

In 2007, Ms. Coté, was living with her daughter in Shreveport. The circumstances leading to the original litigation were started when, Leon Bell, who was employed by City’s water department, was sent to a neighborhood to tell the certain residents about the water being shut off. He ended his shift and then hours later entered Ms. Coté’s residence and held her by force. Luckily Ms. Cote’s daughter escaped and alerted the police. Mr. Bell was arrested and charged with aggravated battery and second degree kidnapping; he pled guilty to certain charges and was given a sentence of many years in jail.

Ms. Cotè’s filed a lawsuit against the City of Shreveport (the City) the following year.  In that lawsuit she alleged great mental suffering due to the unlawful intrusion. Ms. Cotè alleged that city’s employee had actually been let into her home on a few instances prior because he requested the same as part of his job. On one visit she had would not let him in and notified the City at that time of the incident. The City could not locate any documents detailing Ms. Cote’s grievances. Ms. Cotè argued that the City should be held vicariously liable because the harm she incurred was a result of their employee performing his job duties. The City in return argued that the the criminal activities did not occur as part of their employees’ job duties, therefore they should not be held in concert with him for his negligent actions. Ms. Cotè’s attorneys advised her that the City’s motion on the vicarious liability issue was on solid ground, and she would have a tough time proving her case in court. Ms. Cotè was very hands on with her case, and when her attorneys provided her with an affidavit they intended to present in response to the City’s she indicated discouragement with their handling of her case.

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law-series-3-1467437-1024x769When attempting to bring a lawsuit in court, timing is everything. If a potential claim is brought too late your day in court may never come. However, Louisiana courts of law are generous in extending the deadline to file a lawsuit in instances of fraud.  In the following case out of Jefferson Parish Louisiana, a Plaintiff learned that the deadline to file a legal malpractice lawsuit can be relaxed when fraud is employed to hide negligent representation.

Ms. Michelle Myer-Bennett was primarily a divorce attorney, but represented clients in related matters: division of property, custody, and other family law matters. Ms. Myer- Bennett was hired by Tracy Lomont to represent her in her divorce. Ms. Lomont wished to receive her home in Jefferson Parish as a result of the divorce. Ms. Myer- Bennett followed standard protocol to draft this documentation, but failed to record this information in the mortgage or property records.

Sometime later in 2010, Ms. Lomont attempted to refinance her house, but was denied. After reviewing her application, Ms. Lomont discovered that her application was denied due to a lien on her property. Ms. Lomont found out that her attorney had not completed the proper paperwork. According to Ms. Lomont, she contacted her former attorney, Ms. Myer-Bennett who made no mention of her mistake in filing. In contrast, according to Ms. Myer-Bennett, she confessed her malpractice to her client and informed her of all possible proceedings including suing her for malpractice.

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tugboat-1239183-1024x683
Servicing drilling platforms is big business in the Gulf of Mexico.  To transport pipes and other supplies out to the oil platforms ships or large vessels are often used. Unfortunately not all vessels are in “shipshape” as a recent case out of the Eastern District of Louisiana shows.

On May 28, 2013, the RICKY B, a boat operated by D&B Boat Rentals (“D&B”), began taking on water in its engine room while servicing drilling platforms in the Gulf of Mexico. The following day, after several attempts to stop the flooding, the RICKY B contacted Crosby Tugs, L.L.C. (“Crosby”) for assistance. At this point, the RICKY B had lost power and its crew was abandoning ship. Crosby agreed to dispatch a tug to tow the RICKY B to shore. When the tug arrived several hours later, RICKY B was sitting low in the water. The tug, following the owner and operator of D&B’s instructions, attached a tow line and towed the vessel to shallower waters at speeds of no more than five knots without pumping the water in engine room. However, after about 13 minutes into the towing, the RICKY B completely submerged and sunk to a rest on the bed of the Gulf of Mexico.

D&B filed suit against Crosby to recover expenses incurred in the boat sinking, alleging that Crosby negligently towed the RICKY B without pumping the water first, and at too high speeds, causing the boat to sink. After conducting a bench trial, the district court ruled in favor of Crosby. The Court found that D&B presented insufficient evidence to establish that Crosby acted with either negligence or gross negligence. The district court held that the nature of the services provided by Crosby were salvage, not towing; and because the damage ultimately suffered by the D&B was indistinguishable from the purpose of the salvage operation (i.e., to prevent the sinking), a gross negligence standard applied in determining Crosby’s liability instead of ordinary negligence. The standard of ordinary negligence is conduct that deviates from the proverbial “reasonable person,” whereas grossly negligent conduct is that which has fallen so far below the ordinary standard of care that one can expect, to warrant the label of being “gross.” Moreover, in this case, the district court held that even if the court applied an ordinary negligence standard that D&B presented insufficient evidence to prove Crosby’s ordinary negligence. Furthermore, under the Pennsylvania Rule, D&B is required show that the statutory violations of the RICKY B were not the cause of the accident, which they did not. The Pennsylvania Rule creates a rebuttable presumption of causation against an entity involved in a maritime accident if that entity is in violation of a maritime rule or regulation intended to prevent that type of accident.  See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir. 1991).

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pharmacy-1507606-1-1024x768Recently, the Louisiana Fifth Circuit Court of Appeals increased a trial court’s award of damages to a plaintiff in a negligence action against Walgreens. Negligence involves showing the court that one person (or company) failed to do their duty—and as a result, someone was hurt. In this case, Peggy Williams asked her son Derrick to pick up a medication for her from the Walgreens pharmacy in Gretna. Walgreens’ pharmacist handed Derrick another person’s medication, and Ms. Williams took the pills without noticing the mistake. As a result, she suffered several strokes and long-term loss of physical capacity. The jury found that Ms. Williams and her son were 40% at fault, and that Walgreens was 60% at fault for the harms Ms. Williams suffered.

Ms. Williams appealed the judgment on two grounds.

First, she argued that the trial judge made a mistake by entering a judgment different from the jury’s responses on the verdict form. The verdict form apportioned the fault to the parties in the following manner:

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lawyers-1491730-1024x768The last thing that you want to do after dealing with litigious matters is have to hire more lawyers.  However, if you believe your lawyer committed legal malpractice thats exactly what you will be forced to do.  Lawsuits containing claims of legal malpractice are taken very seriously by the courts presiding over them.  Very strict timelines dictate when you must file a lawsuit alleging legal malpractice and if your not careful your case could be dismissed before it gets started.  A recent case out of the Louisiana Fourth Circuit Court of Appeal discusses a lower courts ruling in a legal malpractice lawsuit in favor of Defendants, Romauldo Gonzalez, Sr., and the Law Offices of Romauldo Gonzalez, L.L.C. d/b/a Braden Gonzalez and Associates (collectively, “Mr. Gonzalez”) based on prescription arguments.

In July of 2013, Marco Tulio Miralda filed a legal malpractice lawsuit against Mr. Gonzalez. In his petition, Mr. Miralda alleged that he retained Mr. Gonzalez in early 2008 in regards to renegotiating a mortgage note held by Wells Fargo on his New Orleans home. Mr. Miralda was in default on his mortgage note and Wells Fargo had initiated foreclosure proceedings on the property. Mr. Miralda alleged that Wells Fargo was inclined to negotiate reinstatement of the loan.

Mr. Miralda was allegedly advised by Jose Chacon, a non-attorney employee of Mr. Gonzalez’s law firm, to deposit $30,000 into a trust account to serve as a down payment, for purposes of the renegotiation. Per the instructions, Mr. Miralda deposited $33,864.75 into the trust account.

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mailbox-1-1481771-1024x683In  order to file an insurance claim you first must have insurance coverage.  It’s important that you stay aware of the renewal dates for the continuation of coverage so that you do not end up losing out on critical insurance payments in times of crisis.  In certain situations it’s your insurance company or agent’s duty to notify you that your coverage has lapsed.  A recent case involving a homeowners insurance policy for a property located on Lafourche Street in New Orleans discusses the burden of proof necessary to justify a homeowner’s claims of improper notification of nonrenewal by his insurance agent.

In early 2000, after the roof of his property in New Orleans was damaged, Edward Collins filed a claim under his homeowner’s policy with State Farm Insurance Company. State Farm paid Mr. Collins for the damage per his homeowner’s policy for that claim. In 2004, Mr. Collins submitted a subsequent claim under his homeowner’s policy. State Farm performed an investigation and uncovered that Mr. Collins failed to repair his roof after his funds were disbursed for his 2000 claim. Upon this discovery, State Farm did not renew the homeowner’s policy when it expired in May of 2005.

Mr. Collins was sent a letter of nonrenewal on April 27, 2005. However, Mr. Collins asserts that he never received a notice of nonrenewal. In August of 2005, Mr. Collins filed a claim under the homeowner’s policy for damage to his property as a result of Hurricane Katrina. State Farm denied the claim, setting forth that there no longer was an existing policy for Mr. Collin’s property.

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new-orleans-streetcar-1230694-1024x768Car accidents can be an alarming ordeal. Especially, where there has been a fatality involved. Generally, when a vehicle has been physically involved in an accident, the driver can expect to have some liability. However, liability can also be involved where a driver requires a passenger to exit a vehicle, and the passenger is subsequently struck and killed by an unknown driver, hours later.

This horrific circumstance was an all too real reality for John Cefalu, when the trial court found Mr, Cefalu and his insurer USAA Casualty Insurance Company, (USAA), partially liable for the death of Piero Larrea.   Mr. Cefalu was driving Mr. Larrera and some other friends back from a night of celebrating Mr. Cefalu’s birthday in New Orleans. Mr. Larrera allegedly became belligerent and Mr. Cefalu eventually pulled the car over on the side of the interstate and asked Mr. Larrera to exit the vehicle. Mr. Larrera was eventually hit and killed by an unknown phantom driver.

A lawsuit and subsequent trial followed that series of events.  After three days of testimony a jury verdict was returned.  The trial court accepted the jury’s verdict awarding damages to the plaintiff, the father of decedent, and the jury’s assignment of fault. The assignment of fault was as follows: Mr. Larrea, 54% at fault for his own death, Mr. Cefalu 28% at fault, and the hit and run driver 18% at fault.  Mr. Cefalu and USAA appealed the trial court’s judgment to the Fourth Circuit Court of Appeal, arguing that improper jury instructions resulted in the adverse verdict. Mr. Larrea’s father answered the appeal seeking a modification or reversal of the judgment with respect to the allocation of fault to the unknown driver.

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electric-tower-on-corn-field-1373345-1024x768In 1997, Brandon Hirstius purchased a tract of land in St Tammany Parish. Nearly 14 years later, in 2011, Mr. Hirstius complained of an unauthorized utility pole on his property belonging to BellSouth Telecommunications, Inc. and filed a trespass lawsuit against the telecommunications company. In the midst of the June 2012 trial, Mr. Hirstius discovered the Renaissance Media, LLC, owned aerial wires attached to the utility pole in question.

In May 2013, Mr. Hirstius filed a trespass lawsuit against Renaissance seeking damages and a mandatory injunction requiring Renaissance to remove all its equipment from his property. In response, Renaissance filed a single pleading arguing that there was a peremptory exception of no right of action, meaning that Renaissance believed that Mr. Hirstius did not have a legal right of action, and, alternatively, Renaissance also  argued that Mr. Hirstius’ claims were prescribed, meaning that he did not file the trespass claim within a year of discovering Renaissance’s equipment on his property and therefore could not do so now.  See La. C.C.P. arts. 3492 & 3493.

The trial court concluded that Mr. Hirstius’ claims were prescribed and granted Renaissance’s motion for summary judgment dismissing the lawsuit against Renaissance. The court determined that Mr. Hirstius knew or should have known about the existence of the equipment on his property when he filed the lawsuit against BellSouth in 2011, and therefore, his filing of the lawsuit against Renaissance in 2013 was more than a year after such knowledge and he was therefore barred from seeking damages. Mr. Hirstius argued that his claims were not prescribed because the trespass by Renaissance was continuous, and therefore the one year clock had not started. The court rejected this argument. The court also denied Renaissance’s exception of no right of action on the basis of mootness.

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fireman-s-playground-1496789-1024x768Playgrounds bring great joy to young children.  Countless hours are spent sliding down slides, swinging on swings and traversing monkey bars throughout the state of Louisiana.  While it might come as news to some, playground equipment has certain set standards for what age range is appropriate to play on the equipment.  In a recent case involving a Baptist Church Aftercare program in Jefferson Parish these standards were discussed when unfortunately a young girl broke her arm while playing on their playground.

In September 2010, a 19-month old girl fell and broke her arm playing on a playset while in an aftercare program at Riverside Baptist Church. The playset was only meant for children 5 years old or older.  The parents of that child felt that Riverside failed in providing age appropriate equipment and therefore sued Riverside for damages in a negligence claim.

Personal injury can arise in many different scenarios, ranging from automobile accidents to medical malpractice cases. A common occurrence in these claims include the theory of negligence. The legal foundation for a negligence (failure to use reasonable care) theory in Louisiana involves five elements: (1) the defendant (the party being sued) had a duty to exercise reasonable standard of care; (2) the defendant failed to exercise this duty; (3) because the defendant’s lack of exercising this duty properly caused the injury; (4) the defendant’s ‘substandard’ care was within the scope of liability (i.e. even if the cause, were they legally liable for the cause); (5) did actual damages (injury or economic loss) occur. La. C.C. art. 2315. 

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medical-1240480-718x1024Medical malpractice lawsuits are known to be some of the most complicated, technical cases for injured parties. The average person does not have enough technical knowledge to infer negligence from a medical act or result. Because of this, many plaintiffs have to rely on expert testimony to explain nuanced details of the case and, ultimately, prove their case.

In Louisiana, for a plaintiff to recover damages in a medical malpractice lawsuit, they must prove that (1) there was a standard of care required for the practitioner, (2) the practitioner breached the standard of care, and (3) there was a causal connection between the breach and in the injury. Problems arise for injured parties when their expert testimony is unable to establish these elements and they are consequently subject to summary judgment; this is what happened to the Gonzaleses in their case against the Ochsner Clinic Foundation.

On November 7, 2006, Steven Gonzales saw his doctor for his diabetes at the Ochsner Clinic in Jefferson Parish Louisiana. In addition to the regular diabetes consultation, Mr. Gonzales brought a small bump on his elbow to the doctor’s attention and she diagnosed it as a cyst. The same events occurred again at his December 8, 2006 appointment with the doctor. After growing to the size of a quarter and interfering with his ability to use his arm, Mr. Gonzales requested that his doctor remove it; this occurred on 28 December 2006. After the growth was sent to a lab, Mr. Gonzales was informed that it was a stage II NO tumor of Merkel cell carcinoma, meaning that cancer was localized and had not spread to other areas of his body yet. Mr. Gonzales later had surgery to remove the tissue surrounding the tumor and radiation.

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