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refinery_petroleum_oil_industry-2-1024x683When another or a company’s actions harm a person, he is entitled to financial relief under Louisiana law. The law also requires proof of damages to prove entitlement to monetary compensation. Damages are proven by submitting facts to a trial court. Sometimes the parties agree upon the facts, and sometimes they are disputed. 

Another way of providing facts to the Court is through Judicial Notice. This legal concept allows a court to take notice of facts generally known within a community or otherwise cannot be reasonably questioned. What may be known in the community can still be a disputed issue at trial. The following case, which involved the Berniard Law Firm’s clients, raised the question concerning judicial notice of facts when it can and cannot be used in Louisiana trials.

An industrial accident occurred at Chalmette Refining’s St. Bernard facility on September 6, 2012, due to an emergency shutdown. The sudden shutdown caused a release of nineteen tons of regenerated catalyst over a large portion of St. Bernard Parish and Orleans Parish homes and property.

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thirty_30_shield_mark-683x1024Once a case has been fully litigated, it has been established that the plaintiff cannot bring additional lawsuits against the same parties for the same cause of action. This principle, res judicata, promotes stability, efficiency, and fairness within our court systems. The following Ascension Parish case is decided based on this concept.   

Arthur Deal was involved in a motor vehicle accident with Billie Fortenberry on April 27, 2012. Following this accident, Deal filed a lawsuit against Mr. Fortenberry, Mr. Fortenberry’s insurer, Farm Bureau, and his uninsured/underinsured motorist insurer, State Farm Mutual Automobile Insurance Company. Deal then settled his claims with Farm Bureau and State Farm and agreed to dismiss the lawsuit on October 14, 2015. 

For the claim against Farm Bureau, Deal settled for the insured policy limit of $25,000, which Farm Bureau issued to Deal and his attorney in the form of a check on October 24, 2013. This amount, however, was not negotiated by Deal or his attorney. Following this, Deal retained new legal counsel. On September 23, 2015, almost two years after Farm Bureau issued the settlement check, Deal’s new attorney wrote the company a letter stating, in part, that the old check was not cashed and asked how long it would take Farm Bureau to issue a new one. Farm Bureau responded that, upon receipt of the old check, it would issue a new check to Deal and his attorney. Deal forwarded the old check to Farm Bureau on October 15, 2015. The company received it on October 16, 2015, and issued a new check on October 26, 2015. Deal and his attorney negotiated this check. 

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bellingham_police-1024x683Claims involving both state and federal law can be extremely complicated; however, what happens when there are questions surrounding the state law itself? In this situation, the district court may actually abstain from exercising its jurisdiction until the state law concerns have been resolved—the following case involving law enforcement officers in New Orleans discusses these issues.

Fred Thompson was working for the Housing Authority of New Orleans (HANO) as a law enforcement officer when he went to assist another officer, Edgar Baron, after hearing that Baron had stopped a pedestrian. Once arriving at Baron’s location, Thompson recognized the handcuffed male in the back of Baron’s squad car as the same person he had seen a short time earlier. Two days later, Sergeant Harry Stanley approached Thompson and informed them that he was required to patrol with Baron. However, Thompson stated he did not want to ride with Baron, as he believed Baron had a history of violating the civil rights of HANO residents. 

Thompson was ordered to HANO’s main office and asked to provide a statement regarding his interaction with Stanley, which Thompson complied with. He received a reprimand and notice of Termination stating Thompson was on administrative leave and could be terminated at any time. A week later, Thompson attended a grievance hearing claiming he was refused whistleblower status. Thompson was fired a few days later. 

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toronto_skyline_early_morning-1024x577A dilatory exception for prematurity is defined in the Louisiana Code of Civil Procedure Article 926(A). There are many reasons why a lawsuit may be premature, or in other words, ripe for a dilatory exception of prematurity. A case may be premature when it is too early in a dispute for the court to have the authority to rule on it. A lawsuit may be premature if there is another administrative body that the case should go to beforehand. The legal issues of prematurity and dilatory exceptions are shown below in a lawsuit from St. Tammany parish.

A Nestle Holdings employee was injured during his employment, and Nestle received a large bill from Lakeview Regional Medical Center (LRMC) for surgery on the employee. Nestle responded by sending back about 10% of the original price, expecting LRMC to initiate an administrative action, which would give Nestle a chance to argue for a lesser price. However, when LRMC did nothing to protest the partial payment, Nestle filed a complaint with the Office of Worker’s Compensation (OWC), a judicial body. OWC rejected the complaint and granted LRMC’s claim of a dilatory exception of prematurity; Nestle appealed the OWC decision to the First Circuit Court of Appeals. 

The First Circuit Court of Appeals upheld the OWC decision to dismiss the complaint due to prematurity. The court first examined Louisiana Code of Civil Procedure Article 926(A)(1), reasoning that it allows for a dilatory exception objection of prematurity to be brought before the litigation commences. The court held that this objection may be used in lawsuits where the law or contract allows for a procedure for the party to seek out administrative relief before resorting to filing a lawsuit. If this exception is raised, the person who raises it bears the initial burden of showing that another remedy or procedure applies, and therefore the lawsuit is premature. For example, this can be done by filing a copy of the contract between the parties into the record, assuming the contract discusses a prelawsuit procedure. After the existence of the alternative remedy is established, the burden then shifts to the other party to show that the specific remedy or procedure has been exhausted.

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nyc_taxi_taxi_berlin-1024x768Often people are injured by a person who appears to be an employee of a company. However, just because someone seems to be working for a business doesn’t necessarily mean they are an employee. If you’re hurt by an employee of a company and want to seek damages, whether the person is an employee or an independent contractor could make a big difference in your case. The following case explains the difference between an employee and an independent contract for determining who will be liable for the injured party’s claims. 

In January 2013, a cab driver was involved in a crash in Shreveport, Louisiana, where the cab passenger, Ms. Franklin, was injured. The cab driver, Mr. Gary Dick, leased the taxicab from Crawford and Yellow Checker Cab Company each day for $85. However, Mr. Dick kept all proceeds from his driving, and the cab companies received the same $85 a day regardless of how much Mr. Dick made. As a result, Ms. Franklin filed a lawsuit against Dick, Crawford, and the Yellow Checker Cab. Filing a lawsuit against all the possible defendants who may be liable is customary after an auto accident, as before litigation Ms. Franklin would have no way of knowing whether or not Dick was an employee or an independent contractor.

The cab companies filed a partial summary judgment motion arguing that there was no employee/employer relationship between themselves and Mr. Dick. Therefore, if successful, the cab companies would not be liable to Franklin for any of her injuries caused by the car accident, only Dick would. The trial court granted the motion in favor of the cab companies, and Franklin appealed the ruling.

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hand_writing_pen_people-1024x683Removal of estate executors can be difficult and require many hours of work. Not only does a petition need to be filed with the court, but the executor being removed must be notified, which often results in a legal battle. Things can become even more complicated when long-lost relatives appear. The following case discusses how the heirs of an estate may seek to remove the executor.

George Fisher died in a car accident. He was not married and had no surviving parents at the time of his death. However, there was a man by the name of Shawn Poullard (Poullard) who claimed to be Mr. Fisher’s son. This posed an issue for Harry Fisher, Mr. Fisher’s uncle and the executor of his estate. 

In 2015, Poullard, and a few other relatives, reached an agreement that gave Pollard ownership of some property within Mr. Fisher’s estate and ordered Harry Fisher, as executor, to pay Poullard from a lawsuit from Mr. Fisher’s car accident. The judgment also dismissed any claims the parties had amongst themselves with prejudice. 

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walmart_carrefour_langelier_entrance-1-1024x723If you slip and fall at a store, you might think the store will be liable for your injuries. However, to succeed in a slip-and-fall claim in Louisiana, there are various elements you must show before you can recover. You might not recover for your injuries if you do not provide evidence to support your claims. 

Joycelyn Griffin claimed that she slipped and fell at a Walmart store in Houma, Louisiana, because Wal-Mart’s employees were negligent in causing or failing to remove a foreign substance on the floor. She fell as she headed toward the register to check out. Griffin testified that around the time of the accident, she observed a store employee operating a waxing machine. Wal-Mart testified that this machine was not dispensing any type of liquid. Notably, Griffin testified that she did not recall if the floor was slippery, did not look to see if anything caused her to fall, and did not recall what caused her to fall. Under Louisiana law, in a lawsuit involving slip and fall incidents on a merchant’s premises due to a condition in or on the premises, the plaintiff (here, Griffin) is required to show that: (1) the condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;  (2)  the merchant either created or had actual or constructive notice of the condition which caused the damage, before the occurrence; and (3) the merchant failed to exercise reasonable care. See La. R.S. 9:2800.6(A).

Wal-Mart moved for summary judgment. Under Rule 56(a) of the Federal Rules of Civil Procedure, a court should grant summary judgment when there is no genuine dispute of any material fact. Wal-Mart argued that Griffin had not made a positive showing of the condition’s existence before her fall. The district court granted summary judgment in Wal-Mart’s favor because Griffin failed to provide sufficient evidence to support the elements of her claim, as she could not recall what caused her to fall or provide other evidence supporting her claim. Griffin appealed.  

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gefahrguttransport-1024x768When a chemical leaks from a local business and spreads to a residential area, it is easy to assume that the company has exposed itself to liability for every person exposed to the leak. But what does someone have to prove to be compensated for their exposure? A case out of Avondale explores this question after twenty people were claimed to have been exposed to hydrochloric acid (HCl).

In 2001, a storage tank belonging to McGowan Working Partners, Inc., an oil and gas company, began to leak, causing a vapor solution of HCI and water to blow from the defendant’s property in Avondale to the northwest into the intersection of Jamie Blvd. and Highway 90. Before the leak, a McGowan employee replaced a clear plastic hose on the storage tank and used a nylon fitting to connect the hose to the tank’s valve. Unfortunately, the employee was unaware that HCI causes nylon to deteriorate. Several days later, 600 gallons of an HCl solution were unloaded into the storage tank, and about 470 gallons escaped onto the ground of the McGowan property. The HCI vapor began to spread off the property at 3:10 am, and the valve from the storage tank was shut off at 4:35 am. People exposed to HCI can experience eye and nose irritation which could develop into throat irritation and breathing difficulty. The HCI emissions were shown to stop affecting people at 5:30 am.

Twenty people who lived and worked in the surrounding area sued McGowan in a mass tort suit for exposure to the HCI vapor. A mass tort is when multiple people come together to file a lawsuit against a person or entity responsible for causing all their injuries. The trial court ultimately sided in favor of all twenty plaintiffs and awarded them damages ranging from $1,000 to $8,000. 

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When one enters the hospital in times of a medical emergency, they hope that they will receive the highest standard of care possible. Often there can be uncertainty, however, as to what the threshold is for the highest acceptable standard of care. In an emergency, it can also become unclear what treatment was received exactly.

 What does “not charted, not done” mean, and how does it apply to medical negligence cases in Louisiana? This very issue arose recently at the Louisiana Court of Appeals recently when the testimony of a doctor at Lakeland medical center conflicted with his documented treatment of a patient who subsequently died. 

Wonica Royal died on April 1, 2003, after she had been discharged from Lakeland hospital. When Ms. Royal presented to the emergency room there had been no nurse at the triage desk. Dr. Juan Blanch, an emergency room physician, was at the desk, however, and he performed the assessment of Ms. Royal. Ms. Royal was administered breathing treatment and antibiotics and discharged on the same day in “good condition.” The next day she died of a pulmonary embolism. 

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wreck_shattered_broken_accident-768x1024Injury and negligence alone cannot support a personal injury claim. There must be causation or a link connecting a negligent act and the related injury to succeed at trial. A consistent medical history and a plaintiff’s credibility can enormously impact whether a jury decides that a negligent act caused an alleged injury. This principle was affirmed by the Calcasieu District Court when plaintiff Treima Williams was unsuccessful in her claim for damages arising from a road traffic accident. The case below shows how contradictory medical history can affect the outcome of your injury lawsuit.

A truck driven by Marvin Gainous rear-ended Williams’ vehicle. Gainous had been stopped behind Williams. However, his truck moved forward and struck her vehicle when his foot slipped off the break. Williams claimed that her head, neck, and left shoulder started hurting immediately after the incident. Following the accident, she called an ambulance, which arrived shortly afterward. Williams complained of pain in her left shoulder and back at the hospital, and she was prescribed pain medication. X-rays of her back were interpreted as normal. 

Williams had prior back injuries from a motor vehicle incident in 2006, another motor vehicle injury in 2011, and an injury she sustained at work in 2011. Williams had also complained of back pain during her pregnancy in 2012. Williams received treatment for neck and back strain from 2013 to 2015. In 2016, an independent medical exam was conducted by an orthopedic surgeon who testified that while he believed Williams suffered neck and back strain based on a subjective assessment, there was no objective evidence. He deduced that the MRI could be that of a completely asymptomatic patient. 

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