59-032619-photoEvery business which opens its doors to the public owes a duty of care to their patrons, a duty to make sure the patron is safe and free from harm. Often, this is as simple as keeping walkways clear and ensuring spills and other hazards are cleaned up in a timely fashion. But what most businesses have never contemplated is a possibility that the duty of care would be owed to something other than a real, live, breathing person. Could the persons to which a merchant owes a duty of care include “juridical” personhood, such as a corporation or a limited liability company (L.L.C.)? In this instance, the answer was, “no.”

In April of 2013, Deborah Norred slipped and fell in the bathroom of the New Orleans Hamburger and Seafood restaurant on South Clearview Parkway in Jefferson Parish. She filed a lawsuit against the restaurant for negligence. Mrs. Norred was also the only member of American Rebel Arms, an L.L.C. on the verge of opening a firearms store in Holden. American Rebel Arms also filed a lawsuit against New Orleans Hamburger and Seafood for Mrs. Norred’s injury, claiming the injuries postponed the opening of the store, causing economic losses.

The restaurant argued that it had no duty of care to American Rebel Arms. It moved for a peremptory exception for no cause of action. A “peremptory exception” is a court motion which requests the court dismiss the lawsuit. Filing a peremptory exception for no cause of action means that there is no valid claim for which the plaintiff can demand relief. In short, the Defendant did nothing wrong, or at least nothing actionable under law. The Trial Court granted the exception, and American Rebel Arms appealed.

33-032619-photoTrials are decided solely upon the evidence presented. A judge cannot read a book on the subject, or do extraneous research on the internet, to aid her decision-making process. In this case, the Defendant claimed that the judge did just that, by calling a city official to confirm some data. The appellate court thought otherwise. So, what do you do when you feel as if the Judge made a decision unfairly?

Plaintiff Vicke Mosley was driving down Mansfield Road in Shreveport when she was struck by Jacob Griffin’s vehicle at the intersection of Valley View. The crash rendered Mosley unconscious and he had to be hospitalized for three days. Mosley claimed Griffin ran the red light, while Griffin claims the light had turned green as he entered the intersection. Mosley filed a lawsuit against Griffin and his insurer.

Witness accounts depicted Mosley entering the intersection on a yellow light, and Griffin edging out into the intersection before his light turned green. Mosley’s attorney also entered a traffic signal inventory (“TSI”) into evidence, which logged the amount of time traffic signals stay certain colors. The only problem with the TSI was that it was from 2011, nearly 3 years before the accident. The Trial Court notified the attorneys for both parties that it would contact the city to confirm the TSI’s veracity. The plaintiff’s counsel was vocal in his support of this action, while defense counsel said nothing.

34-Email-3-13-19-1024x683In the Parish of Plaquemines in Louisiana, the oyster business can be quite profitable. Anywhere in the state, land can be a method of maintaining a person’s livelihood, whether it be through oil, tourism, or even an oyster lease. When a person with valuable land passes away, especially if that person is your relative, you may be curious as to how the death will affect claims to the land and its profits. One family found out when the courts were forced to interpret the law of community property as it relates to oyster leases.

Sometime in the 1960s, Antoinette Bernice Cognevich Barrois (“Bernice”) and her husband, Mancil Barrois (“Mancil”) executed oyster leases. Mancil died in 1975 and left Bernice all of his property in his will. Because Mancil had children outside of the marriage, some children could benefit from Mancil’s estate with no claim to Bernice’s estate. Bernice maintained the oyster leases, including renewing them, for six years after Mancil’s death. When Bernice died in 1981, the administrators of her estate continued to maintain and renew the oyster leases. Neither Mancil’s nor Bernice’s estates were ever closed after their deaths, and in 2014, the administrator of Bernice’s estate, Helen, received a damage award from the 2010 BP oil spill as it damaged the oyster lease property. Mancil’s estate then filed motions seeking to declare the oyster leases as community property and seeking some of the award money pursuant to this decision. Although there were multiple procedural complications with this case, the only issue the Appellate Court was concerned with was whether or not the oyster leases obtained during the marriage of Mancil and Bernice are community property under Louisiana law.

Generally, property acquired during the existence of a legal marriage is considered community property, unless there are special circumstances that make the property separate property belonging to only one spouse. La. C.C. art 2338. This includes any “natural and civil fruits” of all community property. The spouse arguing against community property requirements does have the ability to rebut this presumption. La. C.C. art. 2340. Crucial here is also the Louisiana statute barring a renewal or extension of existing oyster leases to be considered “‘new” leases. La. R.S. 56:426.

close-up-doctor-health-42273-1024x683Perhaps one of the biggest fears when going under anesthesia for a surgery is not waking up when the procedure is over. For a Louisiana man, this fear was realized when a trip to the emergency room for stomach pain resulted in him being woken up from an opiate overdose. So what happens when your doctor gives you an overdose of a medicine?

Donald Ray Seaux, Sr. went to Our Lady of Lourdes Regional Medical Center in July 2002 when he began experiencing stomach pain and vomiting. The doctor diagnosed him with a dysfunctional gallbladder and scheduled surgery to remove his gallbladder. When it came time for him to have surgery, his surgeon, Dr. Juan Paredes, chose to perform an “open cholecystectomy,” which is an invasive surgery requiring a large incision across the abdomen. In choosing this option, Dr. Paredes determined that the less-invasive laparoscopic surgery was not appropriate for Mr. Seaux.

Because the surgery chosen was more serious and would likely be more painful to recover from, the hospital anesthesiologist utilized a patient-controlled analgesic morphine pump (PCA), which was a device that delivered pain medication in timed doses. Two days after he entered the hospital and had the surgery, Mr. Seaux was found unresponsive, and was given the drug Narcan, which reverses opiates in the body. Mr. Seaux and his wife state that he was injured as a result of the overdose of morphine from the PCA.

70-picture-1024x683When someone is injured on the job, sorting out liability can be complex. It can be doubly so when a prisoner is temporarily released so he or she can work and is subsequently injured on a job that was approved by the prison system and the sheriff managing that prison, but completely run by a private party. In such a situation, it will take an excellent lawyer to sort out the liability issues and advise whether a lawsuit is worth bringing. So, who is liable for injuries on a work release program?

Sheriff Mike Tubbs found himself named in a lawsuit by an inmate who was injured in just such a situation. Ronnie Thomas was a prisoner in a jail in Morehouse Parish, Louisiana when he was approved for work release. His work release was assigned to the waste management department, where he worked as a “hopper” on the back of a garbage truck. He would jump off the back at each stop and grab the trash and throw it into the truck. During one of his jumps he fell and was injured. He sued several defendants, including Sheriff Tubbs, for their failure to provide a safe work environment. The trial court dismissed the case after the Sheriff filed a motion for summary judgment, arguing that he owed Mr. Thomas no duty to provide a safe work environment. The trial court held that Mr. Thomas was an employee of the waste management company and thus his only remedy was workers’ compensation. Mr. Thomas appealed, but the Louisiana Second Circuit Court of Appeal affirmed the dismissal.

The work release program that is run by the Morehouse Parish jail requires that the prisoner fill out an application for a job that seems suitable. In this case, Mr. Thomas applied for a job with the Morehouse Parish Police Jury, who reviewed his application and determined that he could work for the waste management company, Morehouse Parish Solid Waste, which is a third-party company. He was then assigned duty as a “hopper” by the company. He was injured in the course of his employment. According to the Court of Appeal, an employee’s exclusive remedy when injured in the course of his employment is workers’ compensation. However, Mr. Thomas argued that his situation was unique because he was a prisoner and out only due to the work release program. In his view, the sheriff was also responsible because he had assigned him to work, arranged what hours he would work, and was the one who negotiated how much he would be paid. He also pointed out that he received his payment through the inmate banking system. Thus, he argued that this level of participation by the sheriff also bound the sheriff with a duty of care to provide a safe work environment. The trial court and the Court of Appeal did not agree. They pointed to substantial case precedent for the settled principle in Louisiana that when a prisoner is released through a work release program they are an employee of the private company that provides employment, and that private employer enjoys immunity provided by the workers’ compensation program. The factual situation, wherein the prisoner applies for a job and is solely supervised by the employer during the release period, also backed up this finding,

23-Email-04-02-19-pictureA wrongful death action lawsuit can be difficult for an individual to have to deal with. But what happens when a clerk that stamps the lawsuit stamps a date that does not exist? What do you do when the Clerk makes this error? The Third Circuit Court of Appeal for Louisiana recently addressed the issue.

Linda Roberts (“Linda”) was diagnosed with bronchiolitis obliterans organizing pneumonia and passed away on July 28th, 2009. Linda’s son, Jeffrey Buelow, (“Jeffrey”) filed a wrongful death lawsuit on August 2nd, 2010, against his stepfather, Donald Roberts (“Donald”). The stamp on the lawsuit showed “10 JUL 33 A:40” and the Clerk wrote “Aug 2” above the stamp. Jeffrey alleged in his lawsuit that Donald wrongfully signed a consent form to withdraw Linda’s life support while under the influence of alcohol because BOOP could have still been cured. In response to the wrongful death suit, Donald filed a peremptory exception of prescription and a document that provided when Linda passed away. A peremptory exception of prescription is a defense by the defendant that the plaintiff’s lawsuit is barred by not being filed within the prescribed period of time. The provided that Linda passed away on July 28th, 2009, and not July 28th, 2010, as Jeffrey stated in his lawsuit. Jeffrey confirmed in his testimony that Linda did in fact pass away on July 28th, 2009, and evidence in form of a certificate of death verified such. Jeffrey then opted to represent himself at trial and argued that the wrongful death lawsuit should have been carried out because tort lawsuits are subject to a prescription of one year from the day that injury or damage occurs. La. C.C. art. 3492. Jeffrey alleged that the wrongful death lawsuit was faxed by his former attorney before July 28th, 2010 but failed to provide any evidence that demonstrated such. The Ninth Judicial District Court granted Donald’s peremptory exception of prescription because Jeffrey failed to file his lawsuit within one year from when Linda passed away. Jeffrey appealed the decision of the District Court.

On appeal, Jeffrey argued that the District Court erred in dismissing his claim his claim based on the evidence that was presented. For prescriptive periods that are one year or more, expiration of the prescription accrues on the day of the last year in which the date of the alleged wrongful death occurred. La. C.C. art. 3456. The Court of Appeal determined that the prescriptive date was July 29th, 2010, pursuant to La. C.C. art. 3456. The Court of Appeal noted that an employee from the clerk’s office obviously had failed to change the date on the stamp, as the non-existing date of July 33rd would have correctly been August 2nd. The Court of Appeal affirmed the District Court’s decision to dismiss Jeffrey’s claim due to the basis of prescription. The Court of Appeal came to this decision because the record from the District Court showed that the date of the filing was August 2nd, 2010 and Jeffrey failed to produce any letter from his previous counsel or a check paid for the filing fee that would have shown that the wrongful death lawsuit was filed within one year from the date that Linda passed away. This case demonstrates the importance of filing lawsuits in a timely manner.

39-Email-04-02-19-picture-1024x683The death of a loved one is always a traumatic experience for family and friends, especially if the death could have been prevented or is at the fault of the hospital. When someone feels as if medical malpractice has occurred, Louisiana has strict guidelines regarding filing a medical malpractice lawsuit and someone unfamiliar with the legal process can easily be confused or frustrated by this complex process. For example, in Louisiana you have one year following a death to file a medical malpractice suit, however, is that filing due at by the close of business at the one year or is the filing due by midnight? The Louisiana Supreme Court recently consolidated two cases that answered such questions on when you have to file a medical malpractice lawsuit. 

The facts of these two cases are similar, which is exactly why the Louisiana Supreme Court decided to consolidate these cases. In the case of Rose Tillman, who sadly passed away on May 22, 2012, her surviving children’s request for a medical malpractice claim was sent to the Louisiana Division of Administration (DOA) on May 22, 2013 after 5 pm, after the DOA office had closed. As a result, the  DOA’s filing system received the request on the following business day, May 23. In the case of Peighton Miller she received a shoulder injury on April 4, 2012 while in the care of a hospital. Again, a malpractice claim was sent to the DOA on April 4, 2013 after the DOA’s 5pm closure. The facts in these cases are undisputed, and at trial, the 24th Judicial District Court for the Parish of Jefferson court ruled in favor of Tillman, and the Fifth Circuit Court of Appeals ruled in favor of Peighton Miller.

In response, Tulane Lakeside Hospital and Durga Ram Sure (the plaintiffs) appealed the decision. Per  La. C.C. art. 3492, defendants have one year to file a malpractice claim and that is one-year prescription begins the day the injury was received. In addition, La. R.S. 9:5628 describes how actions against healthcare providers must commence within 1 year of the sustainment or the discovery of the injury. Moreover, Section 1231.8(a)(2)(b) of the Medical Malpractice Act states how the request for a malpractice review “shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration.” On appeal, the plaintiffs insisted the statute was too vague because it was the DOA’s understanding that a malpractice claim has not been received until it had been “stamped and certified,” which happens during the business day meaning any documents received after 5pm have technically not been received by the DOA until the following business day. However, according to La. C.C. art. 12 when the words of a law are ambiguous or confusing, the words should be evaluated to fit the purpose of the law.

59-Email-04-02-19-picture-1024x683When you go to work each morning, the last thing you want to think about is: “What happens if I get hurt?” Unfortunately for many, workplace accidents are a real concern. The following case shows just how real, and complicated, workplace injuries can be.     

Carlos Cordon sustained multiple injuries while working one day for Parish Glass of St. Tammany (“Parish Glass”). He was at a warehouse loading mirrors into a truck when the mirrors fell on him, resulting in a broken leg, lacerations to his right arm, and aggravation of a preexisting neck injury. These injuries required multiple surgeries and resulted in permanent scarring.  After the accident, Cordon was required to take a drug test, which revealed prescription drugs and marijuana in his bloodstream. The Office of Workers’ Compensation (“OWC”) found, under La. R.S. 23:1081(13), that Cordon was intoxicated at the time of the accident. Due to the intoxication, the OWC decided that Cordon forfeited his rights to all workers compensation and medical benefits. Cordon then brought this case to court. The following case is on appeal from the Office of Workers’ Compensation Administration, District 6.

At the first trial, Cordon was ordered to pay LUBA Insurance Company restitution of $140,491.71 for indemnity benefits and $145,536.99 for medical payments. After Cordon appealed, the court held that he still forfeited his rights to all workers compensation and medical benefits under La. R.S. 23:1081(1)(b); however, the court also found that Parish Glass was responsible for reasonable emergency medical care until his condition stabilized. After this finding, Parish Glass and LUBA agreed to pay $43,742.91 for Cordon’s emergency medical care. As Cordon’s total medical expenses were $145,536.99, he was required to reimburse LUBA the difference of $101,794.08. Cordon agreed to and signed this stipulation.

12-Photo-4_2_19-1024x683Ms. Sayre was a guest at the L’Auberge Casino Resort in Lake Charles when she tripped and fell while walking in front of the hotel restaurant. Based on the video footage of the accident, there were witnesses to the slip and fall; however, the hotel failed to document anything or take statements from any of the witnesses. Ms. Sayre reported a sticky substance on the floor, and subsequently suffered injuries to her knee, hand, neck, and abdomen. Later, Ms. Sayre learned she also had three fractured ribs and a full rotator cuff tear that would require surgery. So, what happens if you slip and fall in a restaurant?

Ms. Sayre filed a suit for negligence against the resort asserting that the clear, sticky substance caused her fall. She also stated that a restaurant employee told her three other people had fallen in the same spot. When Ms. Sayre attempted to find evidence of the accident, she couldn’t find any and never received an accident report from the resort. She later amended the petition asserting claims that the resort purposely failed to properly secure and preserve evidence to prevent people from bringing suit.

During trial, Ms. Sayre’s counsel requested that the court instruct the jury that failure to preserve evidence raises a presumption that the evidence would’ve been detrimental to the case absent a reasonable explanation. So, if the jury  finds that the defendant could have reasonably preserved the evidence and failed to do so without explanation, the jury can presume that the evidence wouldn’t favor the party. Ms. Sayre was informed by the court that they wouldn’t give the jury those instructions. Sayre’s counsel objected, the trial proceeded, and the jury returned a verdict in favor of the defendant. Ms. Sayre appealed the decision, claiming that the trial court erred by not giving the jury the instructions she requested.

45-Photo-4_2_19This case drives home the important reality that sometimes the justice system punishes innocent people, but also shows that in the end true justice can prevail.

Plaintiff-Appellee Darrin Hill was accused of being a rapist and kidnapper, but turned out to be a victim of the criminal justice system rather than a criminal needing justice, as DNA exonerated him nearly 20 years later. So, what can happen next after DNA exonerates you from a crime?

In the 1990s, a couple (names redacted for privacy) was assaulted. The boyfriend was forced off at gunpoint and the girlfriend brutally raped. With little evidence at the time, the police relied solely on an unknown notebook left in her car that included the name “Darrin Hill” and an address. While the address itself was unoccupied, police now know that the adjoining apartment was being rented out by the sister of who is now known to be the real rapist. The Detective had canvas the area around the apartment which included a car that matched the getaway car from the day of the crime, but did nothing with this information.