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47-Email-03-13-19-Image-1024x795When most people think of filing a lawsuit, they expect to attend a trial in a court where a judge and jury decide the outcome of the case. However, most of the time cases are decided long before a trial is reached. One of the legal mechanisms for ending a lawsuit before it reaches trial is called a Motion for Summary Judgment. A summary judgment motion allows a party to ask the court to rule in their favor on a particular issue as a matter of law. The court may grant the motion if the parties are in agreement as to the important facts of the case and if the party that is making the motion is legally entitled to prevail on the claim in question. As this case demonstrates, a summary judgment motion can be an effective tool for ending a lawsuit, so when should you ask for summary judgement in a personal injury case?

Javonna Rayfield was staying at the Millet Motel in LaPlace, Louisiana on August 29, 2012, when Hurricane Isaac made landfall and created wind speeds reaching 100 mph. At around 5:00 a.m. Ms. Rayfield was awakened when the ceiling and walls of her room fell on top of her. Ms. Rayfield was taken to a local hospital, where she was treated for her injuries. Later, Millet found that a fire door down the hallway was buckled and the hasp lock was dangling and that the high winds had caused a concrete block wall on the floor above to collapse. The concrete blocks fell above Ms. Rayfield’s room, causing the ceiling and wall to buckle and fall.

Ms. Rayfield brought a lawsuit against the Millet Motel and its insurer, United Fire & Insurance Company (“Millet”). She alleged that the premises in the motel were defective and that Millet knew or should have been aware of the defective conditions. Ms. Rayfield filed a summary judgment motion, asking the court to conclude that there was a defective condition on the premises and that this condition was what caused her injuries. Millet similarly filed a summary judgment motion, asking the court to find that Ms. Rayfield’s injuries resulted solely from Hurricane Isaac. The trial court decided in Millet’s favor by granting their summary judgment motion and denied Ms. Rayfield’s motion for partial summary judgment, a decision which Ms. Rayfield appealed.

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shopping-cart-1550709-1024x768Most people believe that if you suffer a slip and fall accident in a store, you will most likely be entitled to some level of compensation. Unfortunately, that is not always the case.

After a slip and fall accident occurring because of what Regina Williams described as a “puddle of water” at a Super 1 Foods located in New Iberia Parish, Williams filed a lawsuit for negligence against the grocery store. Williams’ lawsuit was filed in New Iberia and named the Brookshire Grocery Company (“Brookshire”), Super 1 Foods’ parent company, as the defendant.

In her lawsuit, Williams alleged that Brookshire had knowledge of the water on the floor and did not use reasonable care to prevent a risk of harm. The trial court ruled in favor of Brookshire by granting summary judgment on their behalf. A motion for summary judgment is a quick and timely judgment requested by a party when there is no genuine issue based on the facts of a case.

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mercantile-bank-building-dallas-1228577-771x1024There is no shortage of frivolous lawsuits. As a result, courts have developed many different ways to nip these sorts of lawsuits in the bud. One way is by allowing defendants to file an exception of no cause action, which is essentially a request that asks the court to drop the plaintiff’s lawsuit because there is no factual support to justify the lawsuit. In the case below, the plaintiff truly believed she was wronged by her employer, but because the facts she provided in her lawsuit did not support a valid claim, her lawsuit was ultimately denied. So, how can you avoid your lawsuit being dismissed by no cause of action in Louisiana? 

Gina K. Lusich worked as the branch manager at Capital One Bank in St. Bernard Parish, Louisiana. Lusich’s employment with Capital One was terminated in June 2013. She then filed a lawsuit against Capital One for wrongful termination. Lusich argued in her petition that she was terminated wrongfully because of a false accusation claiming that she instructed other employees to falsify time cards. She also claimed that her personal property was stolen by Capital One. Capital One responded by filing an exception of no cause action. The trial court granted this exception in favor of Capital One, and Lusich appealed to Louisiana’s Fourth Circuit Court of Appeal.

When an appellate court reviews an appeal of an exception of no cause of action, it must examine the sufficiency of the claims within the lawsuit. In other words, the court must seek to determine whether the law can sufficiently provide a remedy for the plaintiff. Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211, 1217 (La. 2006). In doing so, the court must accept the facts as stated by the plaintiff’s petition to be true, asking whether the plaintiff would be entitled to a remedy based on those facts. Jackson v. State, 785 So.2d 803 (La. 2001). However, the lawsuit should be dismissed if the plaintiff cannot show some theory under which he can prove the facts that would support his claim. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 753 So.2d 861 (La. Ct. App. 1999).

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hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768
There is nothing more frightening than going to the emergency room with no sense of what is happening to your body. We believe that the hospital is our safe haven; that the physicians are sincere and will provide us with the care we need to get us back on our feet. However, if something goes wrong, people want someone to blame, and naturally, the hospital or the doctors are the easiest to blame. But sometimes things are misunderstood, and no one is to blame. So, what is the difference between a miscommunication and fraud when it comes to medical malpractice?

On March 16, 2011, Robert Royer received treatment for his heart at Our Lady of the Lake Hospital, Inc. (“OLOL”) at which Royer appeared to be experiencing symptoms of an apparent heart attack. Royer’s doctor encouraged him to drive to OLOL’s emergency room. Within three hours of arriving to OLOL, two EKG tests were performed on Royer to determine his condition, x-rays were taken, and he was admitted to the treatment area where he received medication. Shortly thereafter, OLOL admitted Royer to the critical care unit where he underwent surgery for his heart condition. Two days later, Royer was discharged from the hospital. Royer presented claims of fraud and medical malpractice against the hospital and the doctors.

Royer claimed that the hospital falsely advertised and misrepresented their medical services and stated that the defendant’s intentional misrepresentations convinced him that his complaints about his heart condition would be treated with urgently and seriously at OLOL. He believed that OLOL’s advertisements such as, “completely committed to medical excellence”, and OLOL had earned the “highest level recognition for performance excellence” misled him of the hospital’s service.

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ice-calves-1543085-1024x770Ice storms can create hazards for the general public as well as employees. A Mansfield nurse found out that parking lot falls do not qualify for workers’ compensation benefits. A Shreveport Hospital was able to avoid paying workers’ compensation benefits with the help of an excellent attorney after the employee’s fall.

Joyce Lafitte-Nesom is a nurse manager at Christus Schumpert Highland Hospital (the Hospital) in Shreveport. She typically worked an eight-hour shift from 4:00 pm until midnight. She commuted to the Hospital from her home in Mansfield, Louisiana. On February 11, 2014, the area had an ice storm and many nurses were unable to make their shifts due to the storm. The Hospital was put on diversion and stopped accepting patients due to the shortage of employees.

Ms. Nesom worked until 1:40 am instead of midnight because she was told by Hospital security that the Hospital parking lots were icy and the Hospital was low on materials to apply to the parking lot to help alleviate the slippery conditions. The roads to her home in Mansfield were also closed by the police due to the hazardous conditions. After her shift ended, Ms. Nesom made a decision to wait until the roads were better. She tried to rest in an empty room, but at 5:00 am she gave up and started performing her normal duties. She did not count this toward her working hours for the day. Another nursing house supervisor who lived closer, Ahleeka Cummings, allowed Ms. Nesom to stay at her place until conditions improved.

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rusty-car-1207835-1024x680Witnesses can be critical to winning a personal injury lawsuit after an auto accident. Without an impartial third party to attest to what happened, the case can devolve into he said/she said situation. Even worse, when one party is mentally unable to recall the events of the incident, the outcome becomes even more uncertain. Some may be tempted to think their case becomes a slam dunk after that. With one party not even sure of the facts, the other side has to prevail, right?

Plaintiff Lauren Condon (“Condon”) claimed she was rear-ended by Defendant Carol Logan (“Logan”) on the Pontchartrain Expressway in New Orleans on March 25, 2011. Logan denied fault, but Condon claimed a traffic ticket issued to Defendant for following too closely proves Logan was at fault. Condon filed a lawsuit against Logan and her insurer. After several unsuccessful attempts to depose Logan, Logan’s lawyer eventually divulged that Logan has been diagnosed with Alzheimer’s disease and would not be able to testify, either in deposition or in court. Condon then moved for partial summary judgment on the issue of liability. Summary judgment is a procedure where the court makes a ruling without a full trial, based on the information provided in the pleadings and the discovery process. If there is no “genuine issue of material fact,” then the court makes a ruling as a matter of law. La. C.C.P. art. 966. In the case of partial summary judgment, the court rules on one facet of the case, rather than the entire claim.

Logan’s defense team tried to combat the summary judgment motion with affidavits from Logan’s husband and a statement from Logan in the police report. Condon argued these are not admissible and moved to strike the documents. Logan’s attorneys argued that, since Logan has been stricken by mental impairment since the accident, her statement to the police should be admitted under La. C.E. art. 804.

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gavel-1238036-1-1024x685Listening is the most important skill for an attorney. This is of paramount importance when following court orders. A lawyer must be careful in how his actions appear and the actions he takes when attempting to enter in a case, but what happens when a lawyer violates court orders?

John Courtney Wilson (“Wilson”) attempted to enroll as co-counsel for a sexual harassment lawsuit involving Kendrica Sandifer and the Orleans Parish Sheriff’s office. After two attempts to enroll on Kendrica’s behalf, and two court orders barring Wilson from participating in the lawsuit, the district court sanctioned Wilson for his continued violation of court orders and violating his duty of candor to the court.

On September 16, 2012, Ms. Sandifer moved to enroll Wilson as attorney of record before Judge Barbier. This motion was denied since Wilson had a conflict with the scheduled court date for the lawsuit. On October 12, 2012, Ms. Sandifer filed a second motion to enroll Wilson. This motion to enroll was denied due to lack of experience on the part of Wilson. On December 17, 2012, Wilson and attorney of record, Jerry Settle, attempted to file a complaint before a second district court judge, a Judge Lemelle. The court asked Wilson to show cause as to why they shouldn’t be sanctioned for violating the first court order against his participation in the lawsuit. The court did not issue sanctions but struck Wilson from the record of the case. On February 11, 2013, Wilson filed a third complaint before the district court, again before Judge Lemelle. Before filing the lawsuit, Wilson filed a motion to enroll before a magistrate judge who granted Wilson’s motion. This was his third violation of a court order not to participate in the case, and Wilson failed to inform the magistrate judge of these prior court orders.

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black-hole-1181587-1024x768If injured on someone else’s property, it is important to know what has to be proven in order for a legal case to go forward. If the injury occurs from a defective structure, then the owner of the premise must have constructive knowledge of the defectiveness. The factors a court evaluates when the defective structure is on public property differ from those of a private owner. So, what happens if you are injured on someone else’s property?

A judgment by the 19th Judicial District Court granting the East Baton Rouge Parish Housing Authority (“the Authority”) a summary judgment motion and dismissing the claim by Andrew Blevins (“Blevins”) and his employer’s insurance company, Stonetrust, was affirmed by Louisiana First Circuit Court of Appeal. Summary judgment is granted when there is no real dispute as to the facts of the case, and the party who requested the summary judgment, known as the mover, is entitled to win the case as a matter of law La. C.C.P. art. 966.

Blevins was working at Electrical Building Service, LLC (“EBS”) and while on the Authority’s property, he stepped into a hole that was hidden by tall unkempt grass, causing him to fall and fracture his ankle. Blevins alleged that the Authority was aware or should have been aware of the giant hole that injured him. When a premise owner should have known about a defect, the knowledge is called “constructive notice.” If constructive notice is shown, the Authority is liable for damages. Here, those damages included medical fees and workers’ compensation benefits that Stonetrust wanted as a reimbursement payment.

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StockSnap_D6BZSQ2NM2-1024x683Walmart is buzzing with pedestrian traffic on a daily basis. Where crowds of people are gathered, accidents are sure to follow. Sometimes Walmart’s products are knocked off of shelves, children spill juice in the aisles, and liquid products can slip from a person’s grasp and splatter across the floor leaving a hazardous environment for anyone to slip and fall. Despite Walmart’s best efforts to keep the stores clean, accidents still happen. As a result, legal services may be needed. If that is the case, information about the parties involved is exchanged between the opposing counsels for a period of time known as discovery. Information may be gathered through depositions or a series of questions under sworn testimony out of court. Once sufficient time has been provided for discovery, a party may determine that there is no factual basis for the case to move forward. Because of this lack of material fact, the party may then make a motion for summary judgment. This motion, if granted, can result in a dismissal of the entire lawsuit. Our justice system, however, provides an appeal process for situations where these judgments were granted in error! So, what do you do when you have been blindsided by summary judgement?

In January 2014, Mrs. Mirian Rivas took an ordinary trip to a Walmart in Harvey, Louisiana. While there, she unexpectedly slipped and fell, resulting in injuries. Mrs. Rivas filed for damages in September of 2014 and served Walmart with discovery requests. The following December, those discovery requests were answered and properly mailed by Walmart. Mrs. Rivas and her co-plaintiff, Mr. Cardona, were then deposed by Walmart on April 15, 2015.

Exactly one month later, Walmart filed a motion for summary judgment asserting that Mrs. Rivas lacked sufficient legal elements in her claim against Walmart for her injuries under La. R.S. 9:2800.6. Mrs. Rivas asserted that Walmart’s discovery answers were not completed and that she needed further opportunity to depose the Walmart employees named in Walmart’s answer. The Trial Court granted Walmart’s motion for summary judgment against Mrs. Rivas stating that the discovery time was sufficient. An appeal was instantly filed with the Louisiana Fifth Circuit Court of Appeal alleging the Trial Court erred in granting Walmart’s motion because Mrs. Rivas lacked sufficient time for the discovery process.

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lab-work-1575844-1024x683Have you ever been tempted to take a sick day, just because you need a break? Have you ever called in or left early because you are feeling under the weather and you would not be able to forgive yourself if you exposed the entire office to the bug you caught? Although many employees may stretch the truth on sick days sometimes, there are occasions where it becomes irresponsible and unprofessional. One Louisiana man attempted to test the boundaries of worker compensation when he requested medical payments for his sickness. So, how can you determine if someone is faking symptoms in a workers compensation case? 

This case involves a man filing a workers compensation claim against his former employer. The employee’s name is Remco Leidelmeijen, and he was working for the company, Ferncrest Manor Nursing Home, as a licensed practical nurse. One day, while performing his work duties, he entered a patient’s bathroom to empty out a catheter bag and slipped on water that was on the floor. As a result of the slip, Leidelmeijen first fell forward, hitting his face and jaw on the sink, and then he fell backward and hit the back of his head on the floor. Immediately after the accident occurred, he declined a request to call an ambulance and instead had a family member bring him home from work. He went to the emergency room later that day and received treatment for head trauma occurring at work, according to the emergency room records. He allegedly had injuries for his head, his mouth, and his teeth. Therefore, Leidelmeijen filed suit in hopes of paying the medical bills he accrued for treatment of injuries that he claims came from the accident. Ultimately, he ended up with partial relief.

Leidelmeijen’s only dispute was for his claim of medical benefits, which is what was tried in front of Judge Robert Varnado, Workers’ Compensation Judge of District Eight. This court ultimately found that Leidelmeijen failed to prove entitlement to medical benefits. The majority of the medical expert testimony introduced into evidence found that Leidelmeijen did not have the brain injuries he claimed from the accident but is instead malingering. A malingering diagnosis means that the person might be deliberately or consciously feigning symptoms for an ulterior purpose (e.g., avoiding work, receiving money, prolonging illness with the intent to avoid responsibility and so on, and/or obtaining medications). Leidelmeijen appealed the decision, and it went before Chief Judge James F. McKay, III, Judge Edwin A. Lombard, and Judge Rosemary Ledet. They affirmed the judgment against Leidelmeijen.

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