Articles Posted in Pain And Suffering Claims

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tahoe-beetschen-1368685-unsplash-1024x683The 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.

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dog-1534524-1024x768Litigation between family members can be uncomfortable for everyone involved. But what happens when a plaintiff sues a relative, then passes away, and the relative then becomes the plaintiff? Louisiana’s Second Circuit Court of Appeal recently addressed this unusual situation in a case involving a vicious dog attack.

In May of 2011, Evelyn Goers, 89, was visiting her daughter Laureen Mayfield in Simsville, Louisiana. Goers was attacked and injured by four of Mayfield’s large Tibetan Mastiffs. In May 2012, Goers filed a lawsuit for damages against Mayfield and her homeowner’s insurance company, State Farm. Goers passed away in February 2015, after which Goers’s other daughter, Cheryl Goers, filed a petition to substitute herself as a plaintiff in the lawsuit against Mayfield. The next month, Mayfield made a motion to substitute herself as a plaintiff. The trial court granted both motions. State Farm then filed an exception based on the theory that there was no right of action because Mayfield was both plaintiff and a defendant, thus extinguishing the obligation by confusion. La. C.C. art. 1903. Cheryl Goers filed a response requesting that State Farm’s exception be sustained without a hearing but did not include a proposed judgment to that effect. State Farm then submitted a proposed order granting the exception. Cheryl Goers raised no objection to this action by State Farm. The trial court signed State Farm’s order, dismissing Goers from the lawsuit entirely as both defendant and plaintiff. Cheryl Goers then filed an appeal arguing that the trial court’s order was improper because it extinguished her right of action against Mayfield; an exception for no right of action, she argued, can dismiss a plaintiff, but not a defendant from an action.

Under Louisiana law, an appeal cannot be made by a party who voluntarily and unconditionally accepted without protest a judgment rendered against that party. La. C.C.P. art. 2085. State Farm conceded that under the Direct Action Statute, Cheryl Goers could still maintain a claim against State Farm. La. Rev. Stat. 22:1269 (2012), The Direct Action Statute requires that insurance policies issued in the state provide that the heirs or survivors of any claimant under the policy can maintain the claim. However, as for Cheryl Goers’s action against her sister, the Court of Appeal noted that she voluntarily and unconditionally accepted the trial court’s order without protest because she agreed with the exception and did not oppose the order when the trial court approved it. Therefore, reasoning that Cheryl Goers lacked a basis for the appeal, the Court of Appeal affirmed the trial court’s judgment.

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metal-1314941-1-1024x680It 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.

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massage-chair-1479054-769x1024A therapeutic massage can offer many medical benefits. But if the massage therapist uses too much force, or applies force in an inappropriate way, severe injury to the patient can result. In such cases, an experienced personal injury attorney may be needed in order for the patient to recover damages for medical bills, lost time from work, as well as pain and suffering.

Dr. Maureen Jones received a Swedish massage at the Paris Park Salon in Baton Rouge on October 11, 2007, from therapist Larry Ashton. Jones claimed that during the massage, Ashton was very rough and applied heavy pressure and force, which caused Jones to experience pain and discomfort. The next day, Jones suffered continued sharp and burning back pain. The pain radiated into her buttocks and right leg, where bruising was also present.

Jones sought medical treatment, during which an MRI revealed that she had sustained a rupture of her L4-L5 disc. Jones first attempted to treat the condition without surgery, but eventually, due to continued debilitating pain, she underwent a left L4-L5 discectomy operation. Jones then filed a lawsuit against Ashton, Paris Park Salon, and the salon’s insurance carrier, ABC Insurance Company (“defendants”). Jones alleged that the message was negligently performed by Ashton, whose negligence breached the reasonable standard of care causing serious, permanent, and disabling injuries.

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elevator-1234161-1024x768When accidents happen, especially at work, it is natural for us to want to be made whole again: put back together as much as possible so our lives can return to normal. Sometimes, recovery for these accidents only covers the harm we can see. A worker injured on the job may appear healed physically but have more internal healing that needs treatment. This issue was examined in a workers’ compensation case appealed to the Louisiana First Circuit Court of Appeal in 2016.

Gary Thompson worked as a program monitor for the Department of Health and Hospitals, Office of Public Health. On February 15, 2011, Thompson left work at the end of the day and took the elevator as his office was on the eighth floor. When the elevator descended past the third floor, it suddenly fell and hit the ground level with a strong impact. Thompson’s post-incident MRIs showed serious injuries to his knees, hip, and upper and lower lumbar spine. Thompson had to undergo bilateral knee arthroscopy and other procedures, but no procedures performed relieved him of his back pain and other symptoms. Thompson’s orthopedic surgeon, Dr. Jorge Isaza, recommended a discogram to determine whether Thompson was a surgical candidate and Dr. Allen Johnston, appointed by the Office of Workers’ Compensation (OWC), reported that he agreed with the recommendation.

The OWC medical director approved the discogram and it revealed pain generators in Thompson’s back at Ll-2, L2-3, and L5-S1 levels. Dr. Isaza performed surgery on the L5-S1 level in April of 2013, but this did nothing to relieve Thompson of pain. Dr. Isaza recommended post-surgery diagnostic tests. At this point, OWC refused approval to conduct those tests. Dr. Isaza recommended another lumbar fusion on the L2-3 and Ll-2 levels, to treat the upper lumbar injury, which a May 14, 2012, MRI report confirmed the need for. The OWC also denied coverage of this procedure.

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wire-fence-1221022-1024x768When our loved one is under the care of others, we expect him or her to be free from pain and neglect. Unfortunately, the authorities in charge of our loved one can make mistakes, and sometimes, the mistakes can be fatal. In such cases, we would likely blame the authorities in charge and desire some sort of punishment upon them. However, just because the fault may lie with the authorities does not mean that punishment is inevitable. The case of Jamie Zaunbrecher is an example.

Zaunbrecher was an inmate at the Ascension Parish Jail. Two nurses, Robyn Richard and Michelle Gaudin, were in charge of his medical care. When Zaunbrecher arrived at the jail, he told the medical staff that he had pre-existing medical conditions, but did not tell them of his diverticulitis, which ultimately contributed to his death. On February 18th, six days before his death, Zaunbrecher submitted a “Medical Request Form” (“Form”) in which he sought “emergency” care. More specifically, he wrote that he had severe pain in the right side of his back and that his pain medication was not being replenished. The day after Zaunbrecher’s submission, Nurse Richard gave Zaunbrecher Ibuprofen. On February 20th, Zaunbrecher submitted another Form complaining of back pain and constipation. Nurse Richard provided Tylenol and a laxative. Zaunbrecher also asked for a blood test, but this request could not be granted as only the nurse practitioner, who was not available, could grant it. From February 21st, Nurse Gaudin took care of Zaunbrecher and provided laxatives in order to aid his constipation. Though Nurse Gaudin thought Zaunbrecher was getting better, on February 24th, Zaunbrecher grew extremely ill. He was brought to a hospital, but by the time he arrived, he had passed away. Zaunbrecher’s representative sued Richard and Gaudin for not providing proper medical treatment and violating Zaunbrecher’s Eighth Amendment Right.

Nurses Richard and Gaudin responded to the lawsuit by invoking qualified immunity. Qualified immunity is a legal doctrine that protects government workers from being sued for acts done under the scope of their employment. The Trial Court refused to grant qualified immunity, but the Appeals Court stated that qualified immunity was appropriate. When a defendant invokes qualified immunity, the plaintiff has to first show that the defendant violated a constitutional right. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005). Here, the plaintiff’s argument was that Richard and Gaudin violated Zaunbrecher’s Eight Amendment Right by acting indifferently to his medical needs. To show this indifference, the plaintiff had to prove that Richard and Gaudin knew that Zaunbrecher “face[d] a substantial risk of serious bodily harm.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). The plaintiff also had to prove that Richard and Gaudin knew this risk and failed to mitigate this risk.

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image-3-1024x683After deciding to follow through with filing a lawsuit, one of the first questions asked is where to file. Venue is the county or parish that is applicable for your case to proceed. Filing in the proper venue is a determinative factor in moving forward with your case. There may be more than one appropriate venue for your case, but failure to choose correctly can cause ripple effects to the rest of your lawsuit.

Damion Comeaux and Austin Romero collided at an intersection in Vermilion Parish on June 9, 2012. Comeaux filed a lawsuit on May 16, 2013, in the East Baton Rouge Parish, naming defendants Romero (who was driving a police department car), Abbeville Police Department, the City of Abbeville, the Louisiana Municipal Association, and Zurich American Insurance Company. Comeaux alleged that he was injured when Romero failed to stop at a stop sign, causing the collision with Comeaux’s vehicle, and sought money for his bodily injuries, as well as associated general and special damages.

At trial, the City of Abbeville cited improper venue and the case was ultimately transferred to Vermilion Parish on the condition that the defendants waive any defense of prescription (statute of limitations). Prior to the trial court transferring the case, Comeaux filed an identical lawsuit in Vermilion Parish on July 1, 2013. Both the East Baton Rouge and Vermillion Parish cases proceeded at the same time, which identical filings in each district. The defendants objected to the condition to waive prescription and challenge the cause of action. The trial court ruled in their favor, and Comeaux appealed on prescription of his second filed lawsuit (in Vermillion Parish) and cause of action.

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school-bus-2-1518496-651x1024Losing a child is always an extremely difficult experience for a parent to go through, and it is even more difficult when the death is a result of negligence. Normally when negligence occurs, the parents bring forth a wrongful death lawsuit against the negligent party.

On March 14, 2011, six-year-old La’Derion Miller tragically passed away following a school bus accident when La’Derion attempted to board the school bus and the bus door closed on his arm. Unfortunately, La’Derion could not free himself and he tripped and fell on the road, where he was run over by the bus. As a result of the accident, La’Derion’s parents, Marcus Miller, and Heather Jagnauex, filed separate wrongful death lawsuits naming Harold Thibeaux (the bus driver), Lafayette Parish School Board, and American Alternative Insurance Corporation as defendants. Ms. Jagnaeux and Mr. Miller claimed their son died as a result of the defendants’ negligence.

Mr. Miller’s and Ms. Jagnauex’s separate lawsuits were consolidated for trial. Ms. Jagneaux ended up settling outside of court for $275,000 and subsequently dropped from the case. At trial, the trial court ruled in favor of Mr. Miller awarding him $50,000 in damages for his survival action, $250,000 in damages for his wrongful death claim, and court costs. The defendants disagreed with the trial court’s decision and appealed the decision to the Louisiana Supreme Court.

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construction-worker-safety-gear-1024x683Almost every adult American has thought about what would happen if they were injured at work. They ask would they receive enough to sustain their pre-injury lifestyle and if not, what remedies are available. Typically, employees are eligible for workers’ compensation, but the workers’ compensation system seems odd to some people. For example, if you lose a finger at work, you will get a set amount, but depending on what finger you may get more than someone else who also lost a finger. The question, in this case, is whether Terry Russell, who was injured on the job, is eligible for supplemental earning benefits (“SEBs”). A SEBs award is based on the difference between the claimant’s pre-injury average monthly wage, and the claimant’s proven post-injury monthly earning capacity. Seal v. Gaylord Container Corp., 704 So. 2d 1161 (La. 1997).

In 2009, Mr. Russell was employed by the Sewage & Water Board of New Orleans (“Sewage & Water Board”), when he was unfortunately injured while opening a manhole cover. The accident caused blood clotting in his upper arm and it was later found to have caused “thoracic outlet syndrome,” which injured a vein in his upper chest. To repair the damage, Mr. Russell underwent several surgeries and procedures, one of which was to remove one of his ribs to correct the thoracic outlet vein syndrome and repair the vein stint that was placed during an earlier surgery. By April of 2012, Dr. Torrence, Mr. Russell’s main doctor throughout the ordeal determined that Mr. Russell had reached maximum medical improvement, clearing him to return to work. However, he was only cleared for sedentary work, meaning he could not use his left arm, life more than five pounds, nor work more than four hours per day.

Due to Mr. Russell’s longtime employment and good work ethic, the Sewage & Water Board offered him part-time work as a mail courier, which he declined because he would not be making his pre-injury salary. After declining the position, the Sewage & Water Board stopped making disability payments to Mr. Russell, leading to the case in question. Mr. Russell asked the Louisiana Court of Appeals (the “Court”) to overturn the Office of Workers’ Compensation calculation of SEBs that Mr. Russell is entitled. To be entitled to SEBs one must not earn 90 percent of their pre-injury wages, which Mr. Russell would not had he accepted the part-time mail courier work. See La. R.S. § 23:1221. Thus, the Court correctly held that Mr. Russell was entitled to SEBs; however, they determined that the wages he would have earned as a mail courier must be imputed to him for the purposes of calculating his post-injury earnings. La. R.S. § 23:1221.

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image-1024x656Everyone has that one coworker that just gets under their skin. Some days even the sound of their voice feels like it will push you over the edge. However, when things turn physical in the workplace, not only is an employee at fault, but the company may be as well.

In the Parish of Tangipahoa, Towana Carr worked at Sanderson Farms along with her co-employee, Kevin Webb. According to Carr, while at work Webb deliberately struck her with a “pallet jack” that knocked her into a wall. She then claimed Webb struck her with the equipment for a second time and left her with severe injuries. Prior to the accident, Carr claimed that Webb had threatened her with bodily harm outside of work. However, when she informed her employer, Sanderson Farms, of the threat, they said they could not do anything as the threat was not made on their property. Carr sued with a claim that Sanderson Farm was vicariously liable for her injuries. Sanderson Farm filed a petition stating that Webb was not acting within the scope of his employment; thus, Sanderson Farm not liable. The trial court dismissed all claims against Sanderson Farm and Carr appealed.

An employer may be held liable for intentional acts of an employee under LA Rev Stat § 23:1032 (2014).  The courted followed Baumeister v. Plunkett, 673 So. 2d 994 (La. 1996) and used a set of  factors to determine whether an employee’s intentional conduct is closely enough connected to his employment duties to impose vicarious liability on his employer for the conduct: 1) whether the tortious act was rooted in his job duties, (2) whether the offense act was reasonably incidental to the performance of the employee’s duties, 3) whether the act at the place the place of work, and (4) whether it happened during normal business hours.

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