Articles Posted in Slip and Fall Injuries

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It may be common sense that a person is responsible for consequences caused by their actions. One reflection of this common understanding in legal principles, referred to by lawyers as the “Egg-Shell Skull” Rule, may lead to financial burdens unexpected by people who can be deemed responsible for the events. To understand this Egg-Shell Skull Rule, it is first necessary to know the importance of “causation” in pining legal liabilities to a person.

In situations where a person’s behavior has caused someone else to suffer loss or harm, causation is a crucial element of liability because it connects an injury to a responsible party. This makes sense because if A hit B in the arm and B suffered a fracture, naturally A would be responsible for the injury. Yet if A threw a light kick at the shin of B, who, unknown to A, had a series condition that set of a chain of events that finally resulted in B unable to use his leg at all, A may find herself held responsible for this grievous injury.

The Egg-Shell Skull Rule literally means that if B had a skull as delicate as that of the shell of an egg, and A, unaware of this condition, injured B’s head, causing the skull unexpectedly to break, A would be held liable for all damages.

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The duty owed by hospitals to patients is a rather cut and dry area of law. However, a case arising out of West Monroe, Louisiana, illustrates how questions of liability become more difficult when the patients’ visitors are involved. Although a hospital does owe a duty of reasonable care to its visitors, the key is whether there is an “ease of association” between that duty and the risk of harm. Liability will therefore often turn, not on the factual issues of a case, but whether the risk of harm to the visitor is within the scope of that duty.

This was the matter before the Louisiana Second Circuit Court of Appeal in Vanderpool v. Louisiana Extended Care Hospital. The case involved a visitor who was injured after her mother fell off a commode chair. The patient’s daughter was helping her mother onto the chair when the arm gave way. Unable to support her mother’s weight, the daughter fell to the floor and sustained injury. The trial court granted summary judgment to the defendant hospital, meaning there was no issue of material fact and a decision could properly be made without the need for further deliberation.

Reviewing summary judgment for a hospital’s liability usually begins with consideration of the hospital’s legal duty. This was the primary determination in Vanderpool, where the appellate court first addressed the hospital’s duty to the plaintiff visitor. While the hospital had a duty to maintain the commode chair in safe working order and to take other steps to protect the patient, the patient’s visitor was not similarly protected. As the court reasoned, “The hospital’s duty to exercise reasonable care for the safety of visitors would not encompass the unlikely risk that a visitor would sustain an injury in connection with a patient using a commode chair.” The point of a duty of care is not to protect against all possible instances of harm that could arise.

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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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A summary judgment is strong medicine. When a trial court grants a motion for summary judgment, it precludes the non-moving party from having their case go to the jury and in some cases from presenting any evidence at all. Because this remedy is so potent, the granting of a motion for summary judgment is reviewed de novo on appeal. A summary judgment is a matter of law not a matter of fact so the trial court is not in any way in a better position to make this decision. The appellate court uses the same standard of review as the district court.

Wal-Mart Louisiana, L.L.C. was granted a summary judgment against Jean and Robert Gray. The trial court found that they had not presented any genuine disputes of material fact. The plaintiffs appeal was granted and a new trial ordered because the appellate court found that there were genuine issues of material fact. The appellate court reversed the trial court’s decision after commenting upon the meanings of the words “genuine” and “material.”

The appellate court found that a fact was “material” if when it is resolved in favor of one party or another it affects the outcome of the case under the governing law. A fact will only be found to be material if it could actually matter to the trial court’s decision. If a fact would not have any bearing on the case it cannot be deemed material. Facts that are presented that are immaterial do nothing to prevent a trial court from granting a motion for summary judgment.

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You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.

In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:

In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …

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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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In the summer of 2007, a woman was dining at a hotel restaurant in Alexandria, LA, when she was injured, allegedly by the restaurant’s negligence. Exactly one year later the aggrieved, Ms. Holmes, filed suit, naming Choice Hotels, Inc. as the defendant. Within weeks Choice Hotels responded, asserting it had no connection whatsoever with the hotel where the accident occurred. It seems that, through unfortunate circumstances, Ms. Holmes mistakenly named and served the wrong party.

Within a month of receiving notice of her mistake, Ms. Holmes amended her petition, correctly renaming the defendant. However, by the time they were served with notice, fourteen months had passed since the date of the injury. Granting the hotel owner’s motion for “exception of prescription,” the trial court dismissed the case.

Exception of prescription occurs when the prescribed amount of time to file a complaint expires. It is a procedural rule developed to protect a defendant from the burden of defending stale claims, but since it is developed purely for protecting the defendant against prejudice, where prejudice is absent, Louisiana law provides a doctrine that will allow the amended complaint to “relate back.” An amendment “relates back” to the date the original complaint was filed so long as the action asserted by the amended complaint “arises out of the conduct, transaction, or occurrence” of the action asserted in the original complaint. La.Code. Civ.P. art. 1153. The Supreme Court of Louisiana has set forth specific requirements prerequisite of an amended complaint that mistakenly named the wrong defendant in 1983.

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A high percentage of personal injury lawsuits are based upon claims of negligence. Negligence and intentional torts are both similar in that they result in harm to others. However, negligence actions differ from intentional torts because they are the result of a non-intentional action. There are essentially four elements of a negligence claim that must be met in order to prevail in a lawsuit. There must be a duty of cared owed to another, a breach of this duty of care, actual harm as a result of this breach, and causation. An individual will be on the hook for any harm that arises due to his or her’s negligence actions. If one’s standard of care deviates from that of a reasonably prudent person under same or similar circumstances, then the individual’s actions may be considered negligent.

The concept of the first element of a negligence claim of a duty of care is highlighted in this recent case. Ms. Ponceti and her daughter, Katilynn, lived in an apartment complex located in Louisiana owned by First Lake Properties (“First Lake”). While Katilynn was playing in the courtyard of the apartment complex, a teenager lost control of his bicycle and injured her. Ms. Ponceti sued First Lake, claiming that it was negligent in allowing the teenager to ride bicycles on the sidewalks of the apartment complex.

This is a personal injury lawsuit based upon the previously discussed negligence tort theory. In claiming First Lake was negligent in allowing bikes on the sidewalks, Ms. Ponceti needed to show that First Lake owed her daughter a duty to take reasonable care by preventing people from riding bicycles on its sidewalks that may potentially cause injury. Here a critical issue comes into play: does First Lake owe her such a duty?

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The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

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Injury can occur on the job even when you least expect it. Kenneth Dale Kelly, a forklift operator for Lena, Louisiana, shipping company Boise Cascade, was injured on the job in August 2007. Unlike most workplace injuries that occur due to accidents, Kelly was intentionally injured by a coworker. Kelly was sitting at his desk with his feet propped up when an altercation over a work assignment with Dwayne Myers began. Despite Kelly’s pleas to be left alone, Myers approached Kelly, picked him up out of the chair, and threw him to the ground. Kelly, whose history of back injuries was well-known by all coworkers, including Myers, landed on his back and immediately began experiencing severe pain and discomfort. Boise conducted an internal investigation, and Kelly’s story was corroborated by several coworkers.

Kelly then filed suit against Myers, Boise, and Boise’s liability insurer, and the 5 day trial began on December 13, 2010. During trial, Kelly argued that Myers’s conduct was intentional and that Boise was therefore liable under the doctrine of vicarious liability. Kelly moved for a directed verdict, stating that reasonable minds could reach no other conclusion than that Myers had committed battery (an intentional tort), that Myers had committed this tort within the course and scope of his employment, that Kelly was not at fault for any part of the injury, and that Kelly was injured due to Myers’s conduct. The trial court confirmed the first two issues, and the jury, finding that Kelly was indeed injured but was 30% responsible, assessed $994,940.00 in total damages to Kelly and his wife. The trial court then increased Kelly’s damages for past medical expenses and past lost wages and granted Boise credit for previously paid workers comp benefits.

The defendants appealed, arguing, among other things, that: 1.) Boise should not be liable under respondeat superior for an intentional tort committed by Myers, 2.) the trial court incorrectly applied the Lebrane test, and 3.) the trial court erred in directing a verdict for battery.

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