Louisiana Personal Injury Lawyer Blog

September 21, 2019

Police Know Their Rights, Do You?

auto-automobile-blur-532001-1024x683 When you think of an interrogation, you may think of a cold, plain room. You can imagine the two-way mirror and the rough metal chairs. You’re probably picturing some menacing looking criminal across from a police officer. It’s likely a high-pressure situation, and one party clearly holds most of the power. The police officer is calling the shots, asking all of the right questions, and knows all of the protocols. But what if it was another officer sitting across from them in the interrogation room?

On August 8th, 2013, Davin Miller was arrested by the Ascension Parish police for counts of simple battery and domestic violence. It was alleged that Miller, an officer for the City of Gonzales, had an altercation with his wife leaving her with injuries and had also threatened his father-in-law while in uniform. Following an investigation and citing ten possible violations of the Department’s standard operating procedures, the Chief of the Gonzales Police Department fired Miller. Miller appealed this decision, citing errors including not being able to record interrogations and not having assistance of counsel during interrogations.

Mr. Miller alleges that he requested that the questioning be recorded and to have counsel present but was denied twice. He was then made to sign two waivers or else be terminated. The first waiver, a “Warning of Rights and Consent to Speak,” stated that Mr. Miller could speak to counsel and have them present when being questioned. The second waiver was consent to a polygraph test. During the questioning, Mr. Miller was asked by the Chief of the Gonzales Police Department multiple times if he was lying.

September 20, 2019

Car Accident Victim Prevails after 18-Wheeler Truck Snaps Old Wire onto her Car

by Berniard Law Firm

45-Picutre-05-22-2019-1024x512 Most people are extra cautious when driving near an 18-wheeler truck, but accidents can happen in ways a person cannot always anticipate. That is what happened to Evelyn J. Menard in Baton Rouge in May of 2004, when an 18-wheeler in front of her snagged a wire above the road, which snapped and hit her car. Evelyn’s car went into a spin, and the truck did not stop. As a result, Evelyn had serious injuries to her lower back

Because neither the owner nor the operator of the truck were identified, Evelyn filed a lawsuit against several defendants associated with the wire, including the Parish of East Baton Rouge, communications companies, contracting companies, her insurance company, and the Louisiana Department of Transportation and Development. This is a strategy that is often used in personal injury cases, because in many cases, the fault for an accident cannot be attributed to a single party, and multiple parties can be liable for an injury. In these situations, plaintiffs join multiple defendants in a single suit, and the court will decide whether, based on the facts, the lawsuit should proceed or whether some of these defendants should be dismissed. In this case, the other defendants were dismissed, except for the Louisiana Department of Transportation and Development (“The Department”).

The case went to trial in 2015. The jury found the Louisiana Department of Transportation and Development 100% liable for Evelyn’s injuries. The jury awarded Evelyn a total of $1,642,000, including $500,000 for past and future physical pain and suffering, $150,000 for past and future mental pain and suffering, $327,000 for past medical expenses, $100,000 for future medical expenses, $165,000 for lost wages, $330,000 for future loss of wages, and $70,000 for loss of enjoyment of life. The court signed a final judgment on March 12, 2015 and awarded Evelyn a total of $1,322,000 in damages, including the full $500,000 for general damages. The defendant made a timely filing of judgement notwithstanding the verdict (“JNOV”), which allows a judge to overrule a jury’s decision. However, the court did not grant it.

September 19, 2019

Shreveport Dentist’s Oral Consent to Patient Determined to be Proper

by Berniard Law Firm

check-up-dentist-doctors-1170979-1024x683 Informed consent in medical situations ensures that a patient is aware of the risks associated with their upcoming medical procedure. This information is disclosed beforehand to serve two purposes: First, it gives the patient the information to make an educated decision on whether to go through with the procedure. Second, it gives the doctor legal protection against lawsuits from patients when those complications or issues the patient was warned could happen actually happen. This was the case for a Shreveport dentist who needed an excellent attorney after complications arose after a patient received a dental implant.

Wanda Magee sought treatment from dentist Dr. Charles Williams for a number of abscesses in 2008. In response, Dr. Williams removed two molars and advised Ms. Magee that in the future she may need up to three dental implants. In 2010, Ms. Magee returned with a request to receive the dental implants because she was having trouble eating. Dr. Williams discussed the implant procedure. Then, Ms. Magee underwent a CT scan to determine the proper place for implantation. Ms. Magee signed the treatment plan, which informed her she may need up to three implants and possibly a bone graft. The procedure was performed in February 2010, and only one implant was required.

Later that month, Ms. Magee returned with pain and nausea. Dr. Williams proposed “exposing” the implant to get a better sense of how the implant was doing. Prior to the procedure, Dr. Williams warned her of the risks with the procedure and Ms. Magee gave him oral consent to proceed but did not give her consent in writing. In regards to consent, Ms. Magee later testified that she wanted to keep the implant and wanted Dr. Williams to fix “whatever was wrong.” Dr. Williams cut the area and found that everything was holding up well. A CT scan confirmed that the implant was stable and Dr. Williams ordered Ms. Magee to take antibiotics and come back in one week. Ms. Magee did not return until June 2010, with complaints of an abscess in the affected area.

September 18, 2019

Louisiana Court Rules that Abandonment is Automatic After Three Years If No Action is Taken in a Lawsuit

by Berniard Law Firm

bill-oxford-r2ESY7RXB4M-unsplash-1024x517 Litigation must come to an end so that parties to a lawsuit can go on with their normal lives. The court system also needs to move on to assist others in settling their disputes. This is a fundamental concept of our justice system. This also encourages courts to deal with cases in an efficient manner so that cases should not drag on unnecessarily. There are several ways in which cases can come to an end. One way is through abandonment. If you file a lawsuit and do nothing about it until three years, that lawsuit will be considered abandoned. In this case, the Fifth Court of Appeal of Louisiana considered a situation where this rule applies.

On May 10, 2011, the plaintiff, Mr. Felo, filed a lawsuit in which he named Ochsner Medical Center as the defendant. In the lawsuit, he alleged that he was injured after falling following a right hip arthroplasty. Ochsner Medical Center answered the petition on July 22, 2011, and on July 28, 2011, filed a request for a jury trial. The July deposit order was signed by the trial court on July 29,2011 and mailed to both parties on August 10, 2011. From this date, the plaintiff took no further action until August 6, 2014, when the plaintiff made applications and requests for production of documents. The defendant filed a motion to dismiss the lawsuit for abandonment. The court granted this request. On appeal, the court considered whether the mailing of the jury deposit order by the clerk of the court was a step in the prosecution of the action to an extent that it had changed the running of abandonment to start from August 10, 2011, and not July 28, 2011.

According to La. C.C.P art. 561(A)(1), an action is deemed abandoned when the parties fail to take any steps in either prosecution or defense for a period of three years. Under this provision, the rule does apply even without a formal order as it is an automatic so long as the period is three years. See Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). Under this rule, if a party disputes abandonment, it must prove that (1) it took a formal action which was intended to continue with the case, (2) the steps must appear on the court record and (3) the steps must have been taken within the prescribed time period.

September 17, 2019

Entergy Louisiana LLC Not Liable for Accident Caused by Faulty Street Lights.

by Berniard Law Firm

israel-sundseth-vOX1_FoSPzQ-unsplash-1024x681 After a road accident, especially when someone is injured, there is an expectation that someone was at fault. We may even blame the weather, the car, or an innocent animal passing by. But in law, attaching fault is not always as straight forward as we may think. For example, what happens if you are crossing a street that has faulty lights at an intersection and you are hit by a car? Would it be too bad of an idea to blame the faulty lights? What if the streetlights are maintained by a company that has entered into a contract with a local authority promising to ensure that lights are properly taken care of all the time? Could you then sue the company for its failure to maintain the streetlights? These issues came for determination in the Fifth Circuit Court of Appeal in Louisiana.

In August of 2014, Eric Girtley filed a lawsuit for personal injuries he sustained when he was struck, in his wheelchair, by a vehicle while crossing an intersection on 31st Street, Loyola Boulevard in Kenner, Louisiana. In the lawsuit, he alleged that the streetlights, which were located near the scene of the accident, were not properly functioning as they failed to illuminate the area. In the lawsuit, he named Entergy Louisiana LLC as one of the defendants. He alleged that Entergy was negligent in that it failed to properly inspect the lights and failed to repair the lights even though they were aware that they were defective. In response, Entergy filed a peremptory exception of no cause of action alleging that it did not owe Eric Girtley a duty to maintain the lights and that he did not have any rights by which he could claim a benefit in the contract for the maintenance of the lights between Entergy and Jefferson Parish.

In Louisiana, if the law does not support the facts alleged by the plaintiff the defendant may dismiss the lawsuit by filing a peremptory exception of no cause of action. This rule questions the legal basis for the plaintiff’s claim. When determining this issue, the court tries to address such questions as does the plaintiff have an injury? Is there any legal relationship between the two parties? Is there a remedy available in law for the action? The function of a peremptory exception of no cause of action is to test the legal sufficiency of the lawsuit, which is done by determining if the law affords a remedy on the facts alleged. See Wright v. La. Power & Light, 951 So. 2d 1058 (La. 2007).

September 16, 2019

When is a Restaurant Liable for Slip and Fall Injuries?

by Berniard Law Firm

When in a restaurant, one expects the kitchen and the dining room to be clean, and it is the restaurant’s duty to uphold that expectation. However, in a busy restaurant someone could accidentally spill a drink, and it does not get cleaned up because the wait staff did not know about the spill. In an instance of a trip-and-fall on an unknown substance, is the restaurant liable for injuries? This is an issue the State of Louisiana First Circuit Court of Appeal recently decided.

Cheryl Tate, her husband, and two of their friends decided to dine out at an Outback Steakhouse in Baton Rouge, Louisiana on September 21, 2012. Upon their arrival, they were immediately greeted by the hostess and led to their seats. However, after taking two or three steps towards their table, Mrs. Tate claims she slipped and fell on an unknown clear liquid that she did not see before she fell. After her fall, Mrs. Tate brought a lawsuit against Outback Steakhouse in the 19th Central District Court of Louisiana for damages pertaining to injuries she allegedly sustained from her slip and fall at the restaurant. However, after the discovery was complete, the Court dismissed the case on the grounds that Mrs. Tate could not meet her burden of proof that Outback Steakhouse had actual or constructive knowledge of the clear liquid Mrs. Tate alleges that she slipped on. Following this decision, Mrs. Tate decided to appeal the decision to the State of Louisiana First Circuit Court of Appeal.

In this appeal, the Court of Appeal is charged with determining if the summary judgement of the lower court is appropriate. According to La. C.C.P. art. 966(B)(2), “summary judgement is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgement as a matter of law.” This means that Mrs. Tate has to prove that she could be able to fulfill her evidentiary burden of proof at trial. The lower court granted summary judgement in favor of Outback Steakhouse because the court believed Ms. Tate could not meet this burden and therefore there was no genuine issue to be tried. However, on appeal the court must determine if this decision aligns with the law outlined in LA. R.S. 9:2800.6.

September 15, 2019

When Is a Slip and Fall Injury the Supermarket’s Fault?

by Berniard Law Firm

aisle-buy-cart-811105-683x1024 When a customer is injured in a slip and fall on a wet supermarket floor there are some situations where the supermarket is held responsible. Other times, there are situations where the supermarket is not at fault and the accident is chalked up to bad luck. Where that line is drawn is determined by what the supermarket knew or should have known about the dangerous condition. When is a slip and fall the Supermarkets fault?

Patricia Guillaume was shopping in a Super One Foods in Shreveport. While in the produce aisle she slipped and fell on water that had pooled on the floor. She was injured and an EMS team took Ms. Guillaume to the hospital where she was treated. Ms. Guillaume then brought a lawsuit, alleging that Super One was negligent by allowing the water that caused her fall to pool on the floor. After a bench trial, the Trial Court ruled in favor of Super One Foods. The Trial Court determined that Ms. Guillaume did not prove that the water was on the floor for a period of time long enough to give Super One Foods constructive notice of the danger and was not negligent.

There are three elements an injured party needs to prove for a negligence claim to be successful against a merchant. La. R.S . 9:2800.6. First, that there was a risk of harm that was not reasonable and that it was foreseeable that harm could be caused. Second, the store either knew about the condition or created the condition. The knowledge of the condition can be actual or constructive knowledge. Third, the plaintiff needs to prove that the merchant did not exercise care that was reasonable. All three of these elements need to be proven for a successful case. White v. Wal-Mart Stores, Inc., 699 So. 2d 1081 (La. Ct. App. 1997). If a plaintiff fails to prove any of the three elements then the case fails. Rowell v. Hollywood Casino Shreveport, 996 So. 2d 476 (La. Ct. App. 2008).

September 14, 2019

When Are Supermarkets Liable for a Slip and Fall Injury?

by Berniard Law Firm

Supermarkets generally owe a duty to their customers to make sure the store is safe to walk around in. But this duty has certain rules built into it to make sure that this standard is fair to both the customers and the place of business. Where this line is drawn was found by a Shreveport area woman after she slipped and fell on what appeared to be cracked eggs. So, when are stores liable for a slip and fall?

Ava Williams-Ball was shopping at a Brookshire Grocery store when she slipped and fell on a clear “egg-like” substance in the diary aisle. The fall caused her to injure her back and shoulders and these injuries took months of pain relief medication and physical therapy to recover. She brought a lawsuit against Brookshire and her argument that the merchant was liable for her injuries was rejected by the Trial Court. The Trial Court determined that Ms. Ball failed to prove that Brookshire had actual or constructive notice of the dangerous condition. The Trial Court relied on surveillance video from the store to make its determination. Ms. Ball then appealed the decision on the grounds that the Trial Court committed an error when it decided that Brookshire did not have notice of the dangerous condition and that Brookshire employees did not create the dangerous condition.

For a negligence claim to be successful against a merchant there are three elements the plaintiff needs to prove. La. R.S . 9:2800.6. First, that there was a risk of harm that was not reasonable and that it was foreseeable that harm could be caused. Second, the store either knew about the condition or created the condition. The knowledge of the condition can be actual or constructive knowledge. Third, the plaintiff needs to prove that the merchant did not exercise care that was reasonable. All three of these elements need to be proven for a successful case. White v. Wal-Mart Stores, Inc., 699 So. 2d 1081 (La. Ct. App. 1997). If a plaintiff fails to prove any of the three elements then the case fails. Rowell v. Hollywood Casino Shreveport, 996 So. 2d 476 (La. Ct. App. 2008). Slip and fall lawsuits against a company will not be changed unless the decision was clearly wrong or there was manifest error. Jones v. Brookshire Grocery Co., 847 So. 2d 43 (La. Ct. App. 2003).

September 13, 2019

What Could Happen If You Don’t Gather Evidence After On Duty Injury?

by Berniard Law Firm

chairs-daylight-flowers-2101086-1024x683 Accidents happen – both on the job and when going about regular life. When injuries do occur, we are more likely to go about getting treatment rather than gathering evidence. Nobody is falling down the stairs and then getting up to take pictures or get eyewitness reports. Unfortunately, failure to gather sufficient evidence can result in lasting pain and make you responsible for the bill for your injury. So what happens if you don’t gather evidence after an injury on the job?

In Houma, Louisiana, Keith Russell was delivering materials to build a patio on Timothy Walsh’s property. Russell walked toward a fence but there was no gate. Mr. Russell turned around to walk to the other side of the property and in doing so stepped into an uncovered water meter hole where he fell and hurt his knee. There were no witnesses. Mr. Russell finished the delivery and did not speak with Mr. Walsh. Mr. Russell then sued for damages of her injury. Claims for damages based on injuries caused by a “thing” are made pursuant to La. C.C. art 2317 and 2317.1. These statutes establish that an owner is responsible for things in their custody only (1) upon a showing that they knew, or exercising reasonable care, should have known of the defect that caused the damage (2) that damage would have been prevented if the owner exercised reasonable care (3) which he failed to do.

Mr. Walsh filed a motion for summary judgment seeking dismissal of the claims on the basis that Mr. Russell did not meet his burden of proof that Mr. Walsh had actual or constructive notice of a defect on his property. In support, Mr. and Mrs. Walsh pointed to plaintiff’s deposition testimony, as well as their own affidavits, to show the lack of evidence to support Mr. Russell’s claim. A motion for summary judgment is used when there is no dispute over important facts relating to the issue. An appellate court reviews a summary judgment as if it were a trial court asking whether there is any genuine issue of material fact, and then, whether the plaintiff is entitled to judgment as a matter of law. Summary judgment is granted if according to the evidence presented there is no dispute over the important facts and the party requesting summary judgment would win.The trial court found that Mr. Russell had the burden to produce evidence that defendant had actual or constructive notice of a lack of a cover on the water meter hole. During questioning the plaintiff said that neither Mr. Walsh nor Mrs. Walsh knew or would have known that the water meter cover was uncovered. This effectively nullified Mr. Russell’s case. Therefore, the trial court granted defendant’s motion for summary judgment ruling against the plaintiff and dismissed all claims against him. The appellate court agreed with the decision of the lower court.Whether Mr. Russell believes that the Walsh family is liable for not covering a hole on his property, his case against them lacked the evidence and material facts to get the case to trial. It is important to find good lawyers who can help prepare you for testimony, collect material facts, and evidence to support valid claims after your injury.

September 12, 2019

What Happens If an Accident Could Have Been Prevented by Employee in Louisiana?

by Berniard Law Firm

arizona-asphalt-blur-2199293-1024x684 Sometimes accidents at work happen. But what happens when an accident could have been prevented by an employee? It is a common question to wonder whether an employer is still liable for the actions of an employee, especially in cases where a defect may be open and obvious. A Louisiana delivery driver confronted this very situation after he was injured on a loading dock.

Saia Motor Freight employee Ethan Rose was delivering to Doerle Food Services, LLC, in December 2010. Because the delivery was so large, a temporary bridge made of a metal docking plate, which extended from the truck and across the gap in the floor from the truck and the warehouse floor, was required to move it off of Rose’s truck and into Doerle Food Services’ warehouse. On December 22, the makeshift bridge did not lie flat, but instead had a bump where the flap hinged. The conditions on the bridge were also muddy and wet. As Rose tried to move a pallet of delivery goods over the bump and hinge, he fell onto the ground, injuring his neck and back.

Rose brought a lawsuit for damages from his injury against Doerle Food Services and its insurance company, Liberty Mutual Fire Insurance Company, eleven months later. In 2015, Doerle Food Services and Liberty Mutual Fire Insurance Company filed a motion for summary judgment on the grounds that Rose could not prove there was an “unreasonable risk of harm” on the loading dock bridge plate because the defect was open and obvious.