Articles Posted in Wrongful Death

new-orleans-park-2-1501957-1024x768Essential to winning any legal case is having a good lawyer. However, it is even more essential to have a good lawyer when dealing with tricky cases of negligence against the local government. An oversight caused Kenneth Rivarde’s lawyer to submit an incomplete affidavit from a key witness resulting in a lost lawsuit against the city of New Orleans. Mr. Rivarde’s wife, Channelda Rivarde, perished in a motor vehicle accident at the intersection of North Rocheblave Street and A.P. Tureaud Boulevard in New Orleans, Louisiana. Her husband, Kenneth Rivarde (“Mr. Rivarde”) sued the City of New Orleans (“City”) claiming that the accident was a result of a high-speed chase when the New Orleans Police Department (“NOPD”) was pursuing a fleeing felon. The accident occurred when the felon ran a stop sign and struck the car Channelda Rivarde was a passenger in. So, what happens if your lawyer submits an incomplete affidavit in a fatal car accident case?

The City filed a motion for summary judgment to dismiss the case on the basis that there was no genuine dispute of material fact three days before the discovery cutoff date. The District Court granted the City’s motion.

Mr. Rivarde appealed and argued that the granting of summary judgment and dismissing the case was improper because it was prior to the completion of adequate discovery pursuant to LA C.C.P. art. 966(A)(3), and there was a genuine dispute of material fact as to whether the NOPD breached its duty by engaging in the high-speed chase resulting in the accident that ended Mrs. Rivarde’s life.

akira-hojo-502567-unsplash-1024x683Most Louisiana residents understand the liability they may incur if they do not properly fence a backyard pool. But what about other, less obvious drowning hazards, such as a church’s baptismal pool? Who is held accountable for the failure to protect children from falling in? Typically, a church is part of a diocese and must meet the general guidelines established by the diocese in order to maintain its affiliation. For instance, the First Assembly Church of God (“First Assembly”) in Ruston, Louisiana is affiliated with the  Louisiana District Council of the Assemblies of God (the “DC”) and the General Council of the Assemblies of God (the “GC”). After a tragic accident involving the toddler of a First Assembly family, Louisiana’s Second Circuit Court of Appeal was called upon to determine whether the DC and the GC had sufficient control over First Assembly to be liable for the church’s negligence.

In 2013, Irene Che and her 22-month-old daughter attended services at First Assembly. At some point during the service, the child was found submerged in the church’s baptismal pool. Although she survived, Che’s daughter suffered brain damage that left her unable to walk, talk, or feed herself. In her lawsuit, Che alleged that First Assembly was negligent in leaving the baptismal pool unguarded, and named the church, the DC, and the GC as defendants. Che argued that the DC and the GC were liable under the theory of respondeat superior, which establishes that a person or business is responsible for the damages caused by the acts or omissions of persons over whom it exercises control. La. C.C. art. 2317. The rule has been extended by the Louisiana Civil Code to include employers, who are responsible for the damage caused by their employees in the exercise of the functions within the scope of their employment. La. C.C. art. 2320, The DC and the GC filed a motion for summary judgment contesting the application of respondeat superior to the relationship between themselves and First Assembly. The trial court granted the motion and dismissed the DC and the GC as defendants; Che appealed.

The Second Circuit analyzed the relationship created by First Assembly’s contracting with the DC and the GC to gain the right to affiliate with the Church of God.  The Court, noting that the single most important factor when determining whether an employer-employee relationship exists — a step necessary to invoke respondeat superior — is whether the “employer” has the right to control the work or actions of the “employee,” found that there was no evidence that the DC and GC maintained such right over First Assembly and its employees. The Court further analyzed the DC’s and the GC’s Constitutions and By-laws, concluding that those operating documents failed to establish a relationship between the two bodies and First Assembly that could support the invocation of respondeat superior. As a result, the Court affirmed the trial court’s dismissal of the DC and the GC as defendants in the case, leaving Che to pursue her negligence claim against First Assembly alone.

thinking-out-of-the-box-3-1237519-1024x1024Accidents involving children are difficult for everyone involved. When the accident results in extensive, life-changing injuries, the situation becomes even more tragic and often results in multiple lawsuits. A person cannot recover damages unless he or she has a recognized claim to do so under law. This concept is known as “standing.” Calvernia Reed, maternal aunt to an injured minor child, Geneva Marie Fils, got a glimpse into how strictly Louisiana courts construe that standing requirement.

On January 2, 2006, Geneva Marie Fils (“Geneva”) was born to John and Demitria Fils. She was almost immediately taken out of the biological parents’ care by the Department of Children and Family Services and placed in the foster home of Mayola Calais. On March 22, 2006, Geneva was involved in an automobile accident and suffered multiple injuries, including a fractured skull, an intracerebral hematoma (brain bleeding), and other traumatic brain injuries. Geneva’s biological parents first filed suit against multiple parties involved in the incident, their insurance companies, and the Department of Children and Family Services itself. Calvernia Reed was not named in the petition, but she was included as a plaintiff in the body of the petition as Geneva’s then-current guardian. The biological parents of Geneva sought damages both on behalf of Geneva, and for their own loss of consortium. In early 2011, Demitria Fils passed away. In February of 2011, Ms. Reed was substituted as the proper plaintiff in the proceedings after being granted custody of Geneva, as well as judicially appointed as Geneva’s “tutor.” Tutorship is the legal status of guardianship under Louisiana law. In late 2013, Ms. Reed amended the petition to include her own claim for loss of consortium with Geneva as a result of her injuries. The trial court dismissed Ms. Reed’s claim for loss of consortium because Ms. Reed was not the parent or guardian of Geneva at the time of the accident. Ms. Reed appealed.

Under Louisiana law, a person may recover loss of consortium, service, and society if the person could recover under “a cause of action for the wrongful death of an injured person.” La. C.C. art. 2315(B). The wrongful death statute allows for a cause of action by “[t]he surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.” La. C.C. art. 2315.2. The statute also includes adoptive kin as named in the statute.  La. C.C. art. 2315.2. It does not, however, specifically include a maternal aunt. The list is considered exclusive under Louisiana law, meaning that if the kin is not mentioned in the statute, then the kin cannot recover damages for the claim. Leckelt v. Eunice Superette, 555 So.2d 11 (La. App. 1989). Outside of including adoptive kin under the statute, the terms “mother” and “father” are not defined in La. C.C. art. 2315.2. The Louisiana Children’s Code currently defines “parent” as “any living person who is presumed to be a parent under the Civil Code or a biological or adoptive mother or father of a child.” La. Ch. C. art. 116(17). Notably, the Children’s Code does not give tutorship, custody, or a guardian the legal status of a parent.

empty-hall-2-1545642-1-1024x607For a plaintiff to prove a negligence case, he or she must prove, among other things, that the defendant owed a legal duty to the plaintiff. See La. C.C. art. 2315 (2016). Often, this element of negligence is overlooked and taken for granted which can lead to dismissal of the plaintiff’s case. A recent Louisiana Court of Appeal case out of the Third Circuit illustrates the importance of proving duty in a negligence case.

The case centers around the suicide of Lelia Shelvin while in Lafayette Parish County Sheriff custody. Sheriff Mike Neustrom arrested Ms. Shelvin for aggravated battery with a dangerous weapon. Sheriff Neustrom then took Ms. Shelvin to Lafayette Parish Correctional Center. While at the center, Ms. Shelvin committed suicide. Ms. Shelvin’s estate filed a lawsuit against Sheriff Neustrom, alleging that Sheriff Neustrom was at fault for Ms. Shelvin’s suicide.

At trial, Sheriff Neustrom filed a motion for summary judgment, arguing that he had no duty to Ms. Shelvin because her suicide was a “sudden and completely unpredictable event.” A motion for summary judgment asks the court to decide a case before going to trial, so long as all material facts are agreed upon by the parties. The trial court granted Sheriff Neustrom’s motion for summary judgment, ruling in favor of Sheriff Neustrom. Ms. Shelvin’s estate, disagreeing with the trial court, appealed the decision.

healthcare-upclose-1322372-1024x768Because of the highly technical aspect of seeking relief from the court system, someone unfamiliar with the legal process can be confused and frustrated by the litigation process. This circumstance can be intensified by the harm done and the matter being litigated. Mr. William Matthews, the surviving husband of Mrs. Geranda Matthews, faced this exact problem when filing a medical malpractice claim against two of his wife’s physicians and Louisiana State University Health Systems.

In 2009, Mrs. Matthews went to the hospital complaining of pain. Unbeknownst to the Matthews at the time, the pain was caused by lung cancer. Allegedly, two physicians at Moss Regional Medical Center failed to properly diagnose and treat her cancer until April 2010. The plaintiff also alleged that, because of the physicians’ failure to properly diagnose and treat her, cancer attached to her spinal cord, which caused intense pain, eventually paralysis, and she later passed away.

A claim was submitted to a medical review board, which found that the physician breached the standard of care.  Subsequently, a medical malpractice lawsuit was filed with the Judicial District Court for the Parish of Calcasieu. Mr. Matthews also filed a motion for summary judgment on liability, causation, and damages. Louisiana State University Health Systems, the Defendant, opposed the motion asserting that there was a factual dispute over whether Ms. Matthews pre-existing condition contributed to her damages.  After a hearing, the District Court granted the motion for summary judgment on the issues of liability and causation, leaving calculating damages for another motion for summary judgment or trial. Louisiana State University Health Systems appealed the judgment to the Louisiana Third Circuit Court of Appeal.   

old-country-red-barn-1633768-1024x683When someone dies because of another person’s negligence certain individuals can bring a wrongful death lawsuit against the negligent party. Normally, those who may recover under a claim for wrongful death and survival are limited to a certain class of persons. In such cases, the plaintiff can be the surviving spouse, a surviving child, the decedent’s parents, the decedent’s siblings, or the decedent’s grandparents. La. C.C. arts. 2315.1 (2016); La. C.C. arts. 2315.2 (2016). But what happens when there are multiple people who are entitled to bring the wrongful death suit? Can a biological father recover in his son’s wrongful death and survival suit when the son is presumed to be the child of another man? Recently, the Fourth Circuit Court of Appeal for the State of Louisiana addressed these issues when it decided a case involving a fatal car crash.

On March 8, 2013, Juan Joseph Hughes (“Mr. Hughes”) hit a parked car which caused his car to burst into flames. As a result of this accident, Mr. Hughes lost his life. Mr. Hughes’s parents, Joseph and Cherryn Burkette, filed a wrongful death claim, naming General Motor, LLC. and Banner Chevrolet as defendants. The Burkettes claimed that their son died as a result of the defendants’ negligence.

In response, the defendants argued that Mr. Burkette could not be part of the wrongful death suit. The defendants noted that the Burkettes and decedent did not share a last name. Ms. Burkette asserted that Mr. Burkette was Mr. Hughes’ biological father and that she was his biological mother. Ms. Burkette explained that she was in a relationship with Mr. Burkette while she was married to Jerome Hughes and that her son’s last name only reflected Ms. Burkette’s marital status at the time of Mr. Hughes’s birth.

oil-refinery-1240489-1024x599Often, the facts of a lawsuit are unclear. One strategy that lawyers often use to prove their version of events is to use an expert witness to corroborate their side’s story. Expert witnesses are individuals who possess knowledge in a field or area that the average person knows little to nothing about. Frequently, both sides in a lawsuit end up utilizing experts who often times have differing opinions about the facts surrounding the lawsuit. But how does a judge or jury determine which expert is correct? Recently, the Fifth Circuit Court of Appeal for the State of Louisiana addressed these questions in a workers’ compensation case.

David Allensworth worked for two different companies, Gulf South Systems (“GSS”) and Grand Isle Shipyard (“GIS”) as a cleaner, cleaning storage tanks containing gasoline, crude oil, diesel fuel, and condensate. One day, Mr. Allensworth visited an urgent care center with complaints of abdominal pain and weight loss. A CT scan revealed a large abdominal mass which was later diagnosed as non-Hodgkin’s lymphoma. A cause of non-Hodgkin’s lymphoma is toxic exposure to benzene with is contained in crude oil and gasoline. Mr. Allensworth filed a lawsuit against GSS and GIS for workers’ compensation benefits claiming that his exposure to benzene while working for the companies caused his non-Hodgkin’s lymphoma. Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job.

At trial, Mr. Allensworth submitted the sworn statement of Dr. Jack Saux as an expert oncologist. Dr. Saux concluded that Mr. Allensworth’s non-Hodgkin’s lymphoma was caused by toxic exposure to benzene, which most likely happened when Mr. Allensworth cleaned his employers’ storage tanks. GIS and GSS countered with its own medical expert, who testified that though there is some association between benzene and lymphoma, there is no evidence that benzene exposure caused Mr. Allensworth’s non-Hodgkin’s lymphoma. The Workers’ Compensation Judge (“WCJ”) concluded that Mr. Allensworth did not prove that his disease was a result of his employment. In doing so, the WCJ noted that Dr. Saux based his opinion on Mr. Allensworth’s statement in which Mr. Allensworth claimed he only wore a regular shirt and overalls while cleaning the tank. It was based only on this statement, and not on an examination, that Dr. Saux concluded that exposure to benzene from Mr. Allensworth’s job likely caused Mr. Allensworth’s disease. The WCJ also noted that the testimony of GIS and GSS’s expert stated that Mr. Allensworth did wear protective equipment when cleaning the tanks.

pollution-1-1235575-1024x851A common tactic of defendants is to attempt to remove a case from state court to Federal Court if there is the slightest indication that such removal might be proper.  Depending on the case, however, it may be more advantageous to a plaintiff to keep the case in state court.  Without even concerning the merits of the case, a battle ensues costing time and money.  In any case, where the Federal Government is even remotely involved, removal will likely be an issue.   How can a plaintiff successfully keep their lawsuit in state court when the Federal Government is involved?  Recent Louisiana asbestos litigation provides at least one way.   

Silas B. Bishop, Joseph L. Dennis, and Lawrence R. Craig worked for many years on different ships as merchant mariners. At least one of the ships that the Plaintiffs worked on was owned by the United States Navy.  United States Naval Ships are operated by civilian contractors who hire merchant mariners such as the Plaintiffs.  The Plaintiffs alleged that they were each exposed to asbestos while on board the various ships and suffered serious injuries and/or death as a result.   At the time of the lawsuit, Mr. Bishop and Mr. Dennis were deceased and their estates were represented by William E. Bartel, who is named as the Plaintiff-Appellee in the case before the United States Court of Appeals for the Fifth Circuit. Plaintiffs filed a lawsuit in Louisiana State Court under the Jones Act and general maritime law.  Plaintiffs sued multiple parties, including “Federal Officer Defendants” who were companies operating the Navy Vessels where Plaintiffs worked.  The Plaintiffs claimed that the injuries they suffered were due to their employers’ failure to warn them about the dangers of asbestos; failure to provide training about using products that contained asbestos; and the failure of their employers to adopt procedures to safely install and remove asbestos.  The Defendants moved to remove the case to Federal Court based on the Federal Officer Removal Statute.   

Pursuant to Federal Officer Removal Statute at  28 U.S.C. § 1442(a)(1), “a lawsuit against or directed to … any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office” may be removed to federal court.  Defendants must show that they are “persons” as defined in the statute; that they acted under the direction of a person working for the federal government; and that there is a relationship between the defendant’s actions and what the plaintiff claims. See Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th Cir. 1998). The issue, in this case, was whether there was a causal nexus, or connection, between the Plaintiff’s claims and the Defendant’s actions.   

swat-1-1314751-1024x768Cases with multiple defendants and multiple claims are typically complex and slow to resolve.  Not all claims apply to all defendants, not all defenses apply to all claims or parties, etc.  Furthermore, some defendants possess certain immunities which may allow for the dismissal of certain claims against that defendant before the remaining claims are even addressed. What happens if one claim is dismissed, the plaintiff wants to appeal that dismissal, yet the entire matter is still pending? This is the subject of a recent wrongful death case out of Metairie, Louisiana.  

Maria Ibanez Sarasino, was shot and killed by a convicted felon, Miguel Rojas, while he was out on parole. Mr. Rojas was convicted of attempted second-degree murder, and his brother arranged for him to stay with Mrs. Sarasino and her husband. During the months after Mr. Rojas’ release, conflicts between him and Mrs. Sarasino’s family arose, resulting in Rojas punching Mrs. Sarasino’s daughter, Maria, in the face and giving her a black eye. Mr. Rojos’ brother Alphonso, reported to the Kenner Police Department that Mr. Rojas had stolen a handgun from his apartment.  Alphonso and Maria lodged a complaint with the Jefferson Parish Sheriff’s Office about Mr. Rojas’ threats against the Sarasino family. Maria claimed that Mr. Rojas stole her husband’s gun and was threatening to shoot her and her family. The investigating officer was unable to locate Mr. Rojas so he relayed the details of the investigation to the First District and took no further action.  Approximately two weeks later, Mr. Rojas’ parole officer was notified by the sheriff’s office of the complaints regarding Mr. Rojas, and attempted to locate Mr. Rojas with no luck.  A week following, the Kenner Police Department issued a warrant for Mr. Rojas for theft of a firearm. Four days after the warrant was issued, Mr. Rojas went to the Sarasino residence and shot and killed Mrs. Sarasino.

The surviving family members filed a wrongful death suit against the State of Louisiana, through the Department of Corrections, the Sheriff of Jefferson Parish, the Parish of Jefferson, the Chief of the Kenner Police Department, and the City of Kenner.  Against the Sheriff of Jefferson Parish, Newell Normand, the Sarasino family specifically claimed Sheriff Normand breached his duty to expeditiously execute the warrant on Mr. Rojas.  They further alleged that Sheriff Normand failed to protect the public from a known danger by failing to timely arrest Mr. Rojas and by failing to properly protect the victim. Sheriff Normand filed a motion for summary judgment arguing that the Plaintiffs could not prove that he was negligent for failing to adequately protect Mrs. Sarasino, and that he was entitled to summary judgment on this issue because he was immune from liability pursuant to the discretionary immunity rule. The Judicial District Court for the Parish of Jefferson granted the motion for summary judgment on the claim for failing to protect Mrs. Sarasino reasoning that Sheriff Normand and the Jefferson Parish Sheriff’s Department were shielded by immunity. The Plaintiffs appealed to the Louisiana Fifth Circuit Court of Appeal.  

hard-hat-area-1455626-1-1024x732Getting seriously injured on the job is always a terrible experience, but what if it is unclear for purposes of a lawsuit who you even work for? You know that someone owes you compensation for your injuries, but in this recent case out of Natchitoches Parish that “someone” may not be where your employment application was filed.  

International Paper Company (“IPCO”) hired Turner Industries Group, LLC (“Turner”) to perform maintenance work on IPCO’s recovery boiler.  Garred Whotte, an employee of Turner, was sent to IPCO to construct scaffolding necessary to the maintenance work. While on the job, his feet started burning, resulting in chemical burns to his feet and ankles. Mr. Whotte brought a personal injury lawsuit against IPCO. IPCO filed a successful motion for summary judgment arguing that it was immune from a personal injury lawsuit under the Louisiana Workers’ Compensation Act (“Act”) which limits recovery to the provisions of the Act. The Tenth Judicial District Court for the Parish of Natchitoches specifically found that Mr. Whotte was a “statutory employee” of IPCO at the time of the injury limiting Mr. Whotte to workers’ compensation benefits. Mr. Whotte appealed to the Louisiana Third Circuit Court of Appeal.

The remedies provided to a worker under the Act are the exclusive remedy an employee can seek against his employer or principal pursuant to La. R.S. 23:1032(A)(1)(a).  A “principal” is a person who has contracted with another to perform work as part of the business at the time of worker’s injury.  The principal, as the statutory employer, is protected from tort lawsuits and given the protections of the Act as the exclusive remedy for those injured on the job.  La. R.S. 23:1061.  In the event of a contract between the principal and employer, the contract must contain language recognizing the principal as the statutory employer.  Language to this effect creates the presumption of a statutory employer, however, this presumption can be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate their goods, products, or services.