shopping-cart-1550709-1024x768When you suffer a personal injury such as a slip and fall and pursue a remedy in court, you must be able to support your allegations with sufficient evidence. After conducting initial discovery, a party may move for summary judgment and seek to have the case dismissed before it is ever heard by a trier of fact. When a party moves for summary judgment, it argues that the initial discovery shows that there are no issues of material fact to be decided by the trier of fact and that it is entitled to judgment as a matter of law. The opposing party, the party seeking to avoid having their case dismissed, must then present evidence to show that there are issues of material fact that should be heard at trial. In a recent case from the Louisiana Second Circuit Court of Appeal, a plaintiff conveniently “corrected” her deposition testimony attempting to defeat a motion for summary judgment. While the suspect changes were ultimately admitted, this was not sufficient to allow the case to go forward at trial.

In this case, Ginger Crawford slipped and fell on a wet floor in the dairy section of a grocery store owned by Brookshire Grocery Company in Springhill, Webster Parish, Louisiana. In response to a request by Brookshire, Ms. Crawford gave a deposition in which she swore to the court her version of the incident that happened in Brookshire’s Grocery. The deposition was certified by the court reporter. Brookshire then filed a motion for summary judgment, relying heavily on Ms. Crawford’s deposition. Brookshire’s motion argued that the case should be dismissed before trial because based on the initial discovery, it was evident that Ms. Crawford could satisfy her evidentiary burden under Louisiana’s Merchant Liability Statute. More specifically, Brookshire asserted that Ms. Crawford could not satisfy the “temporal” element of her claim.

In order to succeed in a slip and fall claim, a plaintiff must satisfy each and every element of Louisiana’s Merchant Liability Statute. See L.A. R.S. 9:2800.6.  First, the condition that caused the fall must have presented an unreasonable risk of harm to the plaintiff and that risk of harm must have been reasonably foreseeable. Second, the merchant must have either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Third, the merchant must have failed to exercise reasonable care. In determining whether the merchant exercised reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient to prove failure to exercise reasonable care.

a-guys-dream-1546422-1024x768When multiple auto insurance policies are involved after an auto accident it may be difficult to tell which one is controlling. When a mother’s car broke down she borrowed a car from a friend to take her children to daycare. While on the way to drop her kids off she accidentally rear-ended the car of another driver on Highway 139 in Ouachita Parish, Louisiana. When the time came to determine whose car insurance was controlling a lawsuit was filed to resolve this question.

When Shannon Boyd’s Ford Taurus wouldn’t start, she borrowed Vicki Ellis’ Chrysler 300 to take her children to daycare and go to work. While one the way to daycare Boyd rear-ended Hugh and Janie Green’s Dodge Ram. While Boyd and her Taurus were insured by Safeway, Ellis and her Chrysler were insured by State Farm. After the accident State Farm paid $4,041.77 in property damages to the Greens and subsequently filed suit against Safeway for reimbursement.

The issue at trial was which insurance policy is primary. Both Safeway and State Farm filed motions for summary judgment alleging that the other was the primary policy. The Trial Court found that Safeway’s policy defined a “temporary substitute automobile” in a way that conflicted with the policy goals of La. R.S. 22:1296 which mandates that automobile insurance policies must extend to temporary substitute and rental vehicles. With this statutory context in mind, the Trial Court determined that Ellis’ Chrysler met the conditions of a “temporary substitute vehicle.” The Trial Court thus concluded that Safeway was the primary policy. Safeway appealed.

shopping-center-1507250-1024x768Even if a property is zoned for commercial purposes, a city may discretionarily deny a business from buying and developing that property if the city determines it is against the public interest. The city of Shreveport, Louisiana was challenged when they denied a Dollar General’s site plan to develop a commercially zoned, “use by right” 1.13-acre lot. While Dollar General’s developer, GBT Realty Corporation, petitioned the trial and appellate courts for damages resulting from loss of a business opportunity, the courts ruled that the city was immune from tort liability when a city exercises its discretion in the use of its commercially zoned properties.

In May 2012, GBT appeared before the Shreveport Metropolitan Planning Commission (MPC) at a public hearing to develop a Dollar General store. The MPC expressed concerns relating to the proximity of a Family Dollar store across the street from the proposed Dollar General site as well as concerns about the appearance and landscaping of the proposed Dollar General store. A month later, GBT presented an updated plan with changes made to the store’s landscaping and facade at an MPC public hearing. Nonetheless, amid concerns by the public as well as the MPC, the board unanimously vetoed Dollar General’s plan citing that the plan did not comply with proposed zoning changes for the city’s “2020 Master Plan” and that the site in question was too small to accommodate Dollar General’s store plan. In response, GBT filed an action before the First Judicial District Court to approve the first site plan. The District Court approved the plan and reversed the MPC’S decision. In April 2013, GBT filed a lawsuit against the MPC and city of Shreveport alleging a tort claim for loss of business opportunity due to the delay in approval has caused the plan to fall apart.

The trial court concluded that the city was protected from liability from exercising its discretion in disapproving the site plan. Louisiana statute protects public bodies, including cities and its officers, when they perform discretionary acts that are within the scope of their governmental responsibilities.  La. R.S. 9:2798.1. The trial court recognized that the city exercised its discretion in denying the Dollar General site plan based on issues of impact to the nearby property, traffic, and other public safety concerns. The trial court also concluded that the plan fell apart because of disagreements between GBT and Dollar General rather than falling apart due to the delay caused by the MPC denial and the district court’s approval. Accordingly, the trial court ruled in favor of the city of Shreveport.

road-on-rear-view-mirror-1362231-1024x768When a driver is rear-ended, there is generally a presumption the rear driver is negligent. This is based on the principle that the following driver must maintain a prudent distance from the vehicle in front of them and concentrate on their speed as well as the traffic and general condition of the roadway. La. R.S. 32:81(A).This presumption of negligence when a driver rear-ends another can be overcome by showing that the driver in front was driving unpredictably and caused a sudden emergency which could not be anticipated by the rear driver. Cheairs v. State ex rel. Dept. of Transp. & Dev., 861 So.2d 536 (La. 2003).

In a recent case, the Louisiana Second Circuit Court of Appeals considered when the presumption could be overcome. This case involved a three-car accident in West Monroe, Louisiana. The accident occurred when Norma C. Alvarez merged onto the Interstate 20 after exiting the on-ramp. According to Officer Jacob May, who witnessed the accident, Alvarez wasn’t traveling as quickly as the other vehicles on the interstate and appeared “almost stopped” in the lane. Alvarez was rear-ended by a driver in the left lane of the interstate, Hazel Lee, and then Barbara Jewitt, the plaintiff, rear-ended Lee. Officer May believed that Alvarez’s slow speed caused the accident. Alvarez did not have a driver’s license and had been driving without a license for 15 years. At trial, Jewitt testified that at the time of the accident she was checking her mirrors as she was about to change lanes and when she looked ahead the car in front of her had stopped and she only had a few seconds to stop. Jewitt stated that it was impossible to avoid hitting the car in front of her.

The Trial Court found that Alvarez was 100% at fault for the damage to Jewitt’s car and Jewitt’s injuries, finding that there was nothing the plaintiff could do to avoid the accident. Alvarez appealed the finding and argued on appeal that the presumption of negligence against rear-ending drivers applies and that the accident only occurred because Lee and Jewitt were either not paying attention or were speeding.

industry-up-sign-1533438-768x1024Generally, a driver who is insured for a vehicle they own will remain insured if they use a vehicle they don’t normally use. To limit this, insurance policies commonly contain a regular use exclusion, which will exclude an insurance company from liability when the insured driver uses another vehicle they don’t own, but use regularly. In a recent case, the Louisiana Second Circuit Court of Appeal had to determine whether the exclusion in the defendant’s insurance policy applied to a truck the defendant drove as part of his work.

In this case, Star Youngblood was in a two-car crash with Natasha Jones, the plaintiff, in Mansfield, Louisiana. Youngblood worked for Mansfield Drug Company, Inc. (“MDCI”). At the time of the accident, Youngblood was driving a 2007 Chevrolet pickup owned by MDCI, in the course of his work. Jones filed a lawsuit against Youngblood, MDCI, MDCI’s auto liability insurer, Republic Fire and Mr. Youngblood’s personal auto insurer Farm Bureau.

Youngblood had his personal vehicle, a 2002 Ford pickup, insured with Farm Bureau for $25,000 per person. Youngblood’s policy with Farm Bureau contained a clause which stated that non-owned vehicles which are “furnished for regular use” to the insured are excluded from coverage. Prior to the trial on September 16, 2013, Jones settled with all defendants except Farm Bureau. The Trial Court found that because Youngblood needed specific permission each time he used MDCI’s pickup truck, the regular use exclusion in Youngblood’s policy with Farm Bureau did not operate. As such, Farm Bureau provided coverage for this accident and the court awarded Jones $25,000 which was the policy limit.

torn-ligament-and-fractured-bone-bandages-1631721-1024x727Workers’ compensation is a form of insurance run by the state government which pays wage replacement and medical benefits to employees injured on the job.  Temporary Total Disability Benefits or “TTD” require the employer or its workers’ compensation carrier to pay indemnity benefits roughly equal to two-thirds of the employee’s average weekly wages. But in order to benefit from TTD or other types of disability benefits, the employee must prove an inability to work and that the accident at issue arose out and in the course of his or her employment. A recent case out of the Louisiana Second Court of Appeal illustrates these requirements.

Ms. Maxwell was working as a caregiver for Care Solutions when she was attacked and severely beaten at Glenwood Regional Hospital in West Monroe.  Ms. Maxwell was attending to a client at his home. On Care Solutions’ instructions, she took him to the hospital when he complained of chest pain and breathing problems. She was assaulted by an unknown assailant in the parking lot and sustained severe injuries to her face.

Ms. Maxwell was not able to work since January 22, 2014.  She filed a disputed claim for workers’ compensation the following February because Care Solutions refused to provide her with workers’ compensation benefits.  Care Solutions admitted that she had been injured while employed with them but disputed that the injury arose out of and in course of her employment.

pharmacy-1-1509263-1024x485Companies that do business in multiple states must consider that individual states have their own laws, which must be followed if a company plans to do business in that state. It can never hurt to do your due diligence before you begin operations and a good attorney can be a vital resource. Recently, a Louisiana appellate court overturned the decision of a Worker’s Compensation Judge (WCJ) who ordered an out-of-state pharmacy to receive over $7,000 in reimbursement for providing prescription drugs to a worker’s compensation claimant over a seven-month period in 2010.

The Louisiana Second Circuit Court of Appeal held that Injured Workers Pharmacy (“IWP) was not entitled to reimbursement for fulfilled prescriptions for Oxycodone, Tizanidine, and other medications. Louisiana state law only allows an employee to seek out of state treatment and services when they are unavailable in Louisiana or are provided at similar prices to those found locally.

The case’s origins lie in a slip and fall accident at a Sonic hamburger restaurant. Clenon Naron was performing job duties in the restaurant’s freezer when he injured his back in July 1999. Naron was issued a prescription card for medications relating to the workplace injury. The claim was eventually assigned to the Louisiana Insurance Guarantor’s Association (LIGA). Naron used the prescription card to refill his prescribed medications without incident until February of the following year.

greengrocer-1241104-1024x768Have you ever been involved in a slip and fall accident inside a store resulting from water being on the floor? Were you injured as a result? If so, who would you think was at fault? How would you receive just compensation? In a recent case, the Louisiana Second Circuit Court of Appeal discusses the necessary factors a plaintiff must prove in order to show that a merchant – such as a grocery store, clothing store, or even the owner of a food truck – was responsible for the injuries sustained resulting from a slip and fall accident.

This lawsuit originated from a slip and fall accident occurring on December 16, 2012, when Donna Ferlicca exited Brookshire Grocery Company’s store in Monroe, Louisiana. Upon entering the store, Ms. Ferlicca slipped and fell. There was allegedly water on the floor from the rainfall outside. Ms. Ferlicca suffered a fractured left arm resulting from her fall. On January 31, 2013, Ms. Ferlicca filed a lawsuit against Brookshire her damages. A bench trial proceeded.  A bench trial is a trial where the finder of fact is a judge or panel of judges rather than a jury.

The Trial Court ruled in favor of Ms. Ferlicca and awarded her general damages of $21,000.00 and special damages of $4,921.12. General damages are damages that do not have a fixed amount meaning the amount can vary based on any level of pain and suffering, mental anguish, or loss of enjoyment the plaintiff has suffered. Special damages are those damages that usually have a fixed market value such as lost wages, medical bills, or future medical expenses. These type of damages (general and special damages) are called Compensatory Damages. Compensatory damages are designed to place the plaintiff back into the position she would have been if she had not been injured.  The Trial Court ruled in favor of Ms. Ferlicca holding that 90% of fault belonged to Brookshire and 10% of fault belonged to Ms. Ferlicca herself. However, Brookshire filed an appeal to dispute the ruling of the Trial Court.  Brookshire argued that the Trial Court failed to properly apply slip and fall law in this case.

old-courthouse-1221033-1024x683Legal issues can be separated into procedural and substantive categories. Although some may view procedural requirements as mere technicalities, they are essential to the efficient and fair operation of the legal system. Parties to a lawsuit must ensure that they meet all procedural requirements of a lawsuit, or else risk the lawsuit being decided against them. In a recent case, the defendant attempted to have the case dismissed based on an alleged procedural failure by the plaintiff. It demonstrates the importance of procedural requirements, as well as the complexities of some procedural issues.

This case arises from a petition for damages made by Immaculeta Anyanwu against defendants, East Baton Rouge Parish Sheriff’s Office and Sheriff Sid J. Gautreaux III, for injuries Ms. Anyanwu allegedly sustained. Ms. Anyanwu attached an in forma pauperis (initiation of a legal action without having to pay for court fees or costs due to lack of financial resources) affidavit with her petition. On January 5, 2012, the Trial Court denied her in forma pauperis request as “incomplete.” Ms. Anyanwu was informed of the Trial Court’s denial and made a payment of $710.00 to Court on March 16, 2012, seventy-eight days after the filing of her petition. The Sheriff was served with Ms. Anyanwu’s citation on July 23, 2012.

The Sheriff alleged that Ms. Anyanwu’s service of citation was not timely under La. R.S. 13:5701(D)(1) because it was not within ninety days. The Sheriff requested that the proceedings against him be dismissed under La. C.C.P. art. 1201(C). The Sheriff also argued that service could not be considered made without the payment of filing fees. The Trial Court with the Sheriff that the service of process was insufficient and dismissed the suit. Ms. Anyanwu appealed the trial court’s decision.

pills-on-table-1512519-1024x683In cases involving negligence on behalf of medical personnel, expert testimony is often needed to establish the standard of care that was breached by the party being sued. An expert’s testimony will be admitted based on its relevance to the facts at hand as well as the experts level of knowledge regarding the specific topic. Recently, the First Circuit Court of Appeal had to determine whether or not expert testimony was properly admitted and whether or not from that testimony alone the court could find by a preponderance of the evidence for the Plaintiff. These issues arise in the context of a lawsuit brought by Robert and Ruth McGregor individually and on behalf of the deceased Donald McGregor against Hospice Care of Louisiana in Baton Rouge for negligence in their failure to fill a partial prescription for the deceased.

The deceased Donald McGregor had terminal metastatic prostate cancer and was being treated by a doctor from 1997 till his death July 21, 2002. In April of 2002, Mr. McGregor was enrolled as a patient of Hospice of Baton Rouge (Hospice) when he was no longer able to visit his previous doctor’s office. From that point on his previous doctor relied on reports from the Hospice Nurses to make determinations regarding the prescription of pain medication to Mr. McGregor. in July of 2002, his doctor prescribed various pain medications for long and short term pain. In July of 2002, Mr. McGregor’s doctor wrote a partial fill prescription for 40 morphine suppositories 20 of which were to be filled on Friday and the other 20 to be filled the following Monday. McGregor’s doctor, however, instructed that if the pain worsened the nurses were to contact him or his partner and the on-call physician for the weekend in order to have the other 20 suppositories filled early.

On Sunday of the same weekend Robert McGregor, Mr. McGregor’s son called the on-call Hospice nurse in hysterics requesting that the remaining suppositories be delivered immediately while threatening the nurse’s life if she showed up without them. The nurse then informed Robert that in order for that to happen she would need to visit the home and assess Mr. McGregor’s condition before contacting the on-call physician about releasing the remaining suppositories to which Robert responded with more threats and a refusal of the assessment. The Nurse then informed her supervisors of the situation and they advised her to let Robert know that Mr. McGregor from then on was released from Hospice care. Robert still in hysterics then called the on call doctor directly regarding the situation of his father’s discharge from Hospice care to which the on call doctor agreed with Hospice’s decision because it would be best for Mr. McGregor to be treated directly by her in the hospital. Later that day Mr. McGregor was brought to the hospital where he passed away that evening.