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A 2004 Louisiana Supreme Court case provides a good explanation of the difference between Medical Malpractice and ordinary negligence. Not every negligent act of a qualified health care provider falls within the Medical Malpractice Act (MMA), La.Rev.Stat. 40:1299.41(1).

In Williams v. Hospital Service of Jefferson, the plaintiff was injured as she was pushed in a wheelchair by an employee of West Jefferson Medical Center in Marrero, Louisiana. A wheel on the chair came off, she fell, and she was injured. She sued the hospital for negligent failure to repair the wheelchair and failure to insure that the wheelchair was in proper working condition. The sole issue the Supreme Court considered was whether the alleged negligence fell under the MMA. The Supreme Court of Louisiana determined it did not and sent the case back to the district court for further proceedings.

The Louisiana State Legislature enacted the MMA in 1975. One reason for the law was to provide health care providers with some advantages in actions against them for malpractice by limiting the damages that can be collected and requiring that each claim first be reviewed by a medical panel. The MMA only applies to claims “arising from medical malpractice” under La.Rev.Stat. 40:1299.41(1). Negligent behavior of health care providers that does not fit in the medical malpractice definition are governed by traditional tort principles. Courts have construed the coverage of the MMA strictly.

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As reported on our sister blog, Dow Chemical has experienced another chemical leak in Southeast Louisiana. This time involving the very dangerous titanium tetrachloride. The incident has led to the evacuation of two schools and various roads while local emergency experts assess the situation.

WWL reports Scott Whelchel, emergency operation director for St. Charles Parish, as stating the situation is under control and actions being taken are out of concern and precaution.

He says out of an abundance of caution they are evacuating some homes just north of the Shell Norco facility east of Spruce Street and south of 5th Street. He says the winds are now blowing any chemical cloud over the spillway and away from homes.

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Slip and Fall claims are filed in courts everyday and most are dismissed because the injured party could not prove anything. Important in a slip and fall case is “timeliness”: how soon after the incident a party filed a claim, got pictures of the accident area, hired an expert, etc. As you will see, the difference between a few days and a few weeks could make all the difference in a successful cause of action for a plaintiff. While accidents can occur almost anywhere, residents of New Orleans and other Gulf Coast cities know how difficult to navigate certain sidewalks and areas can be – to fail to file in time on a just claim would be a disaster if true harm has befallen a victim of such a fall.

In 1987, Mrs. Sellers was exiting a doctor’s office when she slipped and fell on a sidewalk. It had been raining that morning and the sidewalk, although covered, was clearly wet. Mrs. Sellers claimed to have slipped in a puddle of standing water outside the office entrance. She argued that the sidewalk, because of a defect, collected excess water that contributed to her fall. In an effort to recover damages from minor injuries sustained in the fall, Mrs. Sellers hired a professional photographer to take pictures of the sidewalk.

Under LSA-C.C. arts. 2317 and 2322, to prove liability for a defective thing, you must show that the defect in the thing poses an unreasonable risk of harm to others, and that the defect indeed caused the harm. The plaintiff, in this case Mrs. Sellers, has the burden of proving that (a) the defective sidewalk created an unreasonable risk of harm to patrons leaving the office, and (b) that the defective sidewalk in fact caused

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If someone trespasses onto another’s land and is injured will the landowner be held liable for damages? It’s a difficult question that has a variety of rationales for both sides of the issue. The answer could be yes, but only in limited circumstances.

In October 1998, 15 year old Hunter Racine was tragically killed after he trespassed onto the industrial property of the Goldwasser Moving and Storage Company at River Road and St. George Avenue in Jefferson Parish. Hunter, his brother Logan, and two friends entered the unfenced property without permission. First, they climbed onto an elevated tank tower and dropped pumpkins and a bowling ball onto parked trucks below. Then Hunter left temporarily and the others found an unattended locked truck with the keys in the ignition. Logan climbed in the passenger window and started the engine. For some reason the engine wouldn’t turn off and the car remained running, not moving, for several minutes. When Hunter returned he jumped on the running board of the truck, reached through the driver window, and attempted to shut it off. Suddenly the truck jumped into gear and began moving forward. Hunter was killed when he was trapped between the fence and the moving truck.

Racine’s family brought a lawsuit against Goldwasser (and others) alleging three different liability theories: attractive nuisance, strict liability, and negligence. Goldwasser filed a motion for summary judgment which was originally denied but then granted in the Louisiana Supreme Court’s 2002 reconsideration. The decision provides a good explanation of these three legal theories as they relate to landowner liability.

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A claim for loss of consortium is typically pursued following an injury where a husband or wife can no longer enjoy the companionship and services of his or her injured spouse to the same degree as before the accident. The loss can be permanent or only temporary, and it can result from the physical injury itself or the mental distress caused by the injury. The loss of sexual relations is frequently cited to support the claim, though it is not an essential element; the claim can also extend to other aspects of the spousal relationship such as caring for children, preparing meals, cleaning the house or performing other chores in the home, and sharing in social activities.

Louisiana law clearly defines the elements to be considered in a loss of consortium claim:

1. loss of love and affection;

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Five Dry Creek youth were injured recently when a roof fell on them. As reported by Southwest Louisiana’s americanpress.com, the five were working to tear down on old building at the Dry Creek Baptist camp when the accident occurred. According to the article:

Beauregard Parish Sheriff Ricky Moses said that at around 3:45 p.m., officers received a call that the building had collapsed and that the youths were trapped underneath.

Everyone was pulled from the building by the time authorities arrived and two of the young people were seriously injured. Dry Creek Baptist Camp is located on La. 113 and is a Christian camp that specializes in youth and adult retreats.

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In a 2000 case, the Court of Appeals made several rulings both reversing and affirming Judgments Notwithstanding the Verdict (JNOVs) that were granted after the trial of a very serious Jefferson Parish accident.

In October 1995 Michael Mashburn was driving east on 1-10 on the downslope of Bonnabel Boulevard, Jefferson Parish, when he lost control of his vehicle and struck the guardrail. He came to a stop blocking the left lane. Minutes later another car came over the overpass and struck Mashburn’s car. The second car was knocked across three lanes of traffic, struck the right guardrail, and came to rest blocking the right lane. The state police came to the scene. Within a couple of minutes of their arrival a motorcycle driven by Sean Schneider slid into another car stopped in the accident traffic. Schneider was thrown off and killed. About 100 feet back, another motorcyclist, Mendoza, was also involved in an accident and was seriously injured (requiring a partial leg amputation).

At trial, the jury granted judgment in favor of plaintiffs Mendoza and Schneider, (via his parents) and against Mashburn and his insurance company. Mashburn and the plaintiffs moved for JNOVs which were granted by the trial court. The JNOVs found the police officers liable for the motorcycle accidents for failing to properly secure the scene and warn drivers of potential danger and altered the damage awards to both Mendoza and Schneider. Upon appeal, the 5th Circuit Louisiana Court of Appeals reversed the JNOV with respect to police officer liability, affirmed with respect to damages awarded to Mendoza, and reduced damages awarded to Sean Schneider’s parents.

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In previous posts we have examined the important role of expert witnesses in litigation. As a general rule, the party who retains an expert witness is responsible for paying for the witness’s services.

The issue of expert witness fees was central to the case of case of Burns v. Apache Corp, 853 So. 2d 708 (La. Ct. of App., 2nd Cir. 2003), which was an appeal from a ruling by the Louisiana Office of Workers’ Compensation (OWC). Mr. Barry Burns was employed by Apache Corporation as an oil well pump technician in Shongaloo, Louisiana. On June 21, 2000, he was struck and killed by a moving part of the pump he was working on. His widow, Terry Burns, made a claim for workers’ compensation against Apache and also filed a tort action against Dodson Tye Machine Works, Inc., a third-party contractor who had also worked on the oil well.

After the accident, Apache began paying Ms. Burns $384 per week in workers’ compensation death benefits. Ms. Burns’s lawsuit proceeded to trial where a jury awarded her $45,324 in damages against Dodson.

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An “act of God” is an unusual, extraordinary, sudden, and unexpected manifestation of the forces of nature which man cannot resist, or prevent for that matter. Even something as commonplace as ice on a bridge can qualify. Three suits regarding a two-car accident on Natchitoches’ Ecore Bridge in 1990 gave Louisiana’s Third Circuit Court of Appeal an opportunity to discuss the doctrine of inevitable accident and the State’s duty to remedy the icy conditions.

The aforementioned early-morning ice on the Grand Ecore Bridge affected several motorists in January of 1990. Problems began between 5:30 and 6 a.m. when ice caused a woman to lose control of her car, hit a road sign, and come to rest facing the opposite direction that she was traveling. Shortly thereafter, a supervisor of the State’s Department of Transportation and Development (DOTD), Neil Bennett, came upon the accident while traveling on department business. Bennett stopped to see if the woman was injured, then proceeded down the highway to a roadside store where he called the Sheriff’s Office to report the accident. He then called the DOTD barn to request that a crew place sand on the bridge and returned to the bridge.

Minutes after Bennett returned, a Mack truck hit a patch of ice, jackknifed, and slid into an oncoming Pontiac. The driver of the car and his two passengers filed suit against the DOTD, the driver of the truck, his employer, his insurer, and the Louisiana Insurance Guaranty Association. The trial court dismissed all claims and the Third Circuit affirmed.

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