Articles Posted in Real Estate

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Many people in New Orleans rent property. Whether a house, a duplex, or an apartment, these residents typically rely on property owners to make necessary repairs to the premises. Proper maintenance ensures that residents are safe and their well-being will be protected. Unfortunately, all too often property owners fail to remedy dangerous situations, which can lead to serious injuries. Wynn v. Luck, a recently decided lawsuit by the Court of Appeal for the Second Circuit, illustrates how a negligence claim can help victims of these situations obtain the compensation they deserve.

In that case, two women were injured when a large section of the kitchen ceiling in a rented house collapsed on them. Though the property owner claimed he did not know of the condition and therefore was not negligent for failing to repair it, the court found the record full of evidence to the contrary. First, an inspection of the property days after the incident found that almost all of the ceilings in the house were in dangerous disrepair and would have been noticeable during any visit by the property owner. Second, a maintenance man hired by the property owner provided services to the house on several occasions and, according to the court, he should have noticed the conditions and conveyed that information to the property owner. Finding the property owner constructively knew of the dangerous condition, the court held the property owner liable for negligence and the victims’ injuries.

According to Louisiana law, an owner or lessor of a property is responsible for the condition of his premises when leased to another. Therefore, the owner is liable for any damage or injuries caused by a defect in the property that he knew of or should have known of through the exercise of reasonable care, provided the dangerous condition could have been prevented through the exercise of reasonable care and the owner failed to exercise that care.

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Plaintiff Judith Henry seeks to recover damages resulting from an accidental fall in the defendants’ restaurant in Houma, Louisiana, on March 13, 2008. The accident occurred when Ms. Henry placed her order and got her soft drink at the counter and began to walk back across the carpeted floor to the table. At that time, she was using a cane and one of her friends was walking ahead of her carrying her soft drink. According to Ms. Henry’s deposition, she was stepping with her right foot when her toe got caught in the carpet. Her foot went backwards and she fell, landing on the foot and breaking her right ankle. Although the carpet was not frayed or worn, she stated it was uneven because it had little squares that formed its weave.

On February 17, 2009, Mr. and Mrs. Henry filed suit for the damages they had incurred as a result of her fall naming NOHSC and its insurer Colony as defendants. On April 1, NOHSC and Colony filed a motion for summary judgment supported by excerpts from Ms. Henry’s deposition, an affidavit from Paul McGoey, NsOHSC managing partner, and an affidavit from Donald Maginnis, a registered architect. Included in this evidence were attachments consisting of photographs of the restaurant interior, a hand-drawn diagram of the restaurant interior and excerpts from the 2006 Life Safety Code Handbook.

After hearing arguments and considering the evidence presented by the parties, the court ruled in favor of the defendants, granting the motion for summary judgment and dismissing the Henrys claims with prejudice The judgment was signed on June 30, 2010. The Henrys then appealed this judgment.

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On February 27, 2012, a district court for the Parish of Lafayette ruled in favor of two defendants being sued by plaintiffs C.F. Kimball II and Linda R. Kimball for property damage. The first defendant, Luhr Bros. Inc. d/b/a Construction Aggregate, owns a shell yard across from the Kimballs’ property on the Vermilion River. The second defendant, Omni Marine Transportation, Inc., owns a vessel that made deliveries to the Luhr Bros. The Kimballs had asserted that both defendants had engaged in business activities that resulted in the destruction of a bulkhead belonging to and located on the Kimballs’ property. The defendants responded by saying that an exception to res judicata prevented the Kimballs from filing a lawsuit against both parties for such damages.

An exception to res judicata signifies that proceedings related to the same occurrence had already taken place and been concluded. Specifically, the defendants claimed that the parties had previously executed a Receipt, Release and Indemnity Agreement in 2002. The Kimballs acknowledged that such an agreement had been executed but claimed that the Release did not pertain to the bulkhead, which the Kimballs had only acquired in 2008. The Kimballs asserted that a Release could not be agreed to for property that was not even in existence at the time of the agreement.

The trial court ruled in favor of the defendants and dismissed the Kimballs’ lawsuit with prejudice, meaning that the Kimballs could not bring a new case on the same basis as the dismissed case. When a trial court rules in favor of the defendants on an exception of res judicata, any issue whose determination was essential to the judgment and already litigated is extinguished. Thus, the trial court found that the issue of destruction of property such as the bulkhead was essential to the proceedings that had already been litigated between the parties, that is, the proceedings that led to the production of the Receipt, Release and Indemnity Agreement.

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A former employee of the Mansfield, LA, branch of the International Paper Company, met with a fatal accident while on the job. While repairing a valve on the platform surrounding the top of a whitewater tank, he fell through the access opening and into the tank.

Access opening covers are not rooted firmly to the tank and are known to become dislocated if the tank contains overpressurized liquid, or if the liquid and debris overflow. Evidence in the form of photographs show that debris had accumulated around the access opening that the deceased had fallen into, indicating that the opening may have been dislodged before he had fallen into the tank. As a result of the incident, the widow of the deceased filed suit against the manager of the Mansfield paper mill and the engineering company that designed and constructed parts of the whitewater tank that the employee fell into.

The engineering company, Stebbins, had a contract with International Paper Company to inspect the durability of its whitewater tanks at many of its locations worldwide. The inspections conducted by Stebbins brought knowledge that some whitewater tanks were over-pressurized and were overflowing. The victims’ family contended that Stebbins’ knowledge of this hazard created a duty on the part of Stebbins to inform the International Paper company of the unsafe practice. The issue, however, was that Stebbins had no such inspection contract with the Mansfield paper mill where the deceased met with his accident.

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On October 3, 2010, Darnall and Michelle Carter suffered the loss of their son Kyris in a drowning incident at a party. On April 25, 2011, the Carters filed wrongful death and survival actions against Steak House Steaks, Inc., James Nations Jr., the alleged owner of the property where the party was held, and XYZ Insurance Co. Wrongful death and survival actions are civil lawsuits initiated by the family members of a deceased victim to obtain a monetary settlement from the person or people responsible for the death of their loved one. Under Louisiana law, there is an established order concerning who has first priority to take these civil actions, with the children of the victim having the first right to file against the wrongdoing party. If the victim had no children then his or her siblings may bring the matter to court, and if the victim had no siblings, then the right falls to the victim’s parents.

Since Kyris Carter did not have any children or siblings, his parents Darnall and Michelle were within their rights to bring wrongful death and survival actions on his behalf. However, the trial court in Lafayette ruled in favor of a motion filed by the defendants in June 2011 for an “exception of no right of action” and dismissed the defendant parties from the lawsuit. According to the defendants, the plaintiffs had no right of action, that is, they did not have a right to bring the wrongful death and survival action claims because the defendants were not the owners of the property where the accident occurred, nor were they the hosts of the party where Kyris Carter died.

The details of the party in question are not laid out by the Court of Appeal or the lower court, but the particular facts concerning who hosted the party or who may have been responsible for the drowning accident should not have been taken into account when the trial court was deciding the motion. In 2012, the Court of Appeal held that the trial court had erred in its assessment of the legal procedural issues involved in the defendant’s motion. The purpose of the “exception of no right of action”, it said, is “to challenge whether a plaintiff is the proper party to file an action, not whether a defendant is the proper party against whom an action can be filed.” In other words, even if Darnall and Michelle Carter had mistakenly initiated a lawsuit against the wrong defendants, the motion used by the defendants should not have been the one used to challenge such an error. The “exception of no right of action” can only be used to challenge whether a plaintiff is the right person to be filing the lawsuit in the first place. Since Darnall and Michelle were proper plaintiffs in this lawsuit, there was no ground for this exception.

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Many floors were damaged in Hurricane Katrina. A Louisiana, jury was asked the question: when a floor is rotten, who is at fault when a person visiting the home is harmed?

Juries are often asked to determine liability for an accident. When a person is injured, a jury determines who is liable by listening to both sides of the story and determining who was at fault. If the liable party is insured; insurance companies have to pay big dollars to the person injured. Determining who is at fault can be very difficult.

Sharon Lewis was visiting her father, Clifton Lewis, when she sustained a fall in her father’s home in Marrero, Louisiana. Sharon was walking on the floor in the dining room when she stepped into a soft spot. The floor collapsed and her foot fell through the floor, causing substantial injuries.

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According to an American Law Report, it is generally the rule that the owner or occupant of a property touching a public sidewalk does not, solely by reason of being the owner, owe to the public a duty to keep the sidewalk in safe condition. This rule of nonliability is not affected by a statute or ordinance requiring an abutter to construct or maintain an adjoining sidewalk, unless there is an express, contrary provision.

However, the abutter will be liable for injuries resulting from a defective or dangerous condition that is created by his or her own acts, which constitutes negligence or a nuisance under the circumstances. For example, an abutter may be liable for injuries resulting from negligent construction, alteration, or repair of the sidewalk, even though these acts in and of themselves do not create liability.

The courts have usually considered compliance with the requirements of a statute regulating the construction of sidewalks. In a number of cases, knowledge or notice of the defect is a factor for liability, although the courts in many other cases have not treated this issue, given the fact that knowledge or notice of a defect on a sidewalk, as well as its direct cause, is difficult to ascertain.

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The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms

Assertive Conduct:

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Many laws or actions include a statute of limitation which provides for a certain length of time for claims to be brought. After that time runs out, the claim can no longer be brought in court. The case of Joseph v. Bach & Wasserman illustrates just how important the statute of limitations can be to a case.

The case arose out of an alleged insurance fraud regarding several retail food trailers in Jean Laffite. The Josephs alleged that Wasserman defrauded them by charging them rent from properties he had illegally possessed from them. They also allege that Wasserman was supposed to place them on the insurance policy for the properties in question, but never did despite charging them insurance premiums. Wasserman in turn claimed that the Josephs owed him $375,000 in back payments. In 2004, the Josephs state that they found out that they did not owe Wasserman any back payments and he had charged them exorbitant fees. They filed suit in Orleans Parish in December 2004. In January 2005, the state court found deficiencies in the Josephs’ claim and gave them fifteen days to correct the problems, but the Josephs failed to respond and their state claim was dismissed with prejudice.

In 2011, the Josephs filed a complaint in federal district court alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and various state law claims. On February 8, 2012, the federal district court granted Wasserman’s motion to dismiss and declined to exercise jurisdiction over the state law claims. This case deals with the Joseph’s appeal of the district court’s decision.

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A Saint Martinville, Louisiana, construction company, Cole’s Construction Crews, Inc., recently had a judgment against it reversed and remanded back to the trial court. Back in 2007, Cole’s had filed a lawsuit against J-O-B Operating Company. A few months after filing suit, Cole’s requested production of documents and sent interrogatories (or a list of probing questions) to JOB. Almost two years later, in July of 2009, JOB finally answered the requests. Then, in June of 2011, JOB filed a motion to dismiss the suit, claiming that Cole’s had abandoned the lawsuit. Ultimately, the motion to dismiss was signed, and Cole’s then attempted to get the motion set aside. The trial court denied this attempt, and Cole’s appealed the case to the appellate court to get it reviewed.

Cole’s claims that granting the motion to dismiss was an error that should be reversed. First, JOB had just answered the interrogatories less than two years earlier, and second, JOB did not file the requisite affidavit with its motion to dismiss. Ultimately, the appellate court disagreed with the trial court’s ruling and decided that granting the motion to dismiss had been done in error. They came to this conclusion by considering the various aspects of the complex Louisiana abandonment law, which is discussed below.

In Louisiana, Article 561 of the Louisiana Code of Civil Procedure imposes three requirements on plaintiffs in order for their lawsuit to not be considered abandoned. The first requirement is that the plaintiff has to take some sort of formal action before the court with regard to the lawsuit. Next, this action needs to take place during a court proceeding and must be in the suit’s record, unless it is part of formal discovery. Finally, this action has to take place in the requisite amount of time. If three years have passed without an appropriate action as described above taken by either party, then the suit is automatically abandoned. Even though abandonment is self-executing, defendants are encouraged to get an ex part order of dismissal, just like JOB did in this case, to make sure that their right to assert abandonment is not waived.

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