by

clock-face-1631303-1024x683Summary judgment is a legal procedure courts may use to dispose of a case when there are not enough facts in dispute to proceed with a lawsuit. This is a good strategy to use when applicable because it purges certain claims that have no merit, saving time and money. The Fifth Circuit Court of Appeal demonstrated the principles of summary judgment within the context of an employment discrimination lawsuit when it comes to untimely filing.

The plaintiff in this case, DeBlanc, suffered from a condition called “chemo brain” after undergoing prior breast cancer treatments. When DeBlanc was fired, she sued her employer for failure to tell her why she was terminated. DeBlanc alleges that the St. Tammany Parish School Board violated the Americans with Disabilities Act (“ADA”) and discriminated against her when they fired her because of her medical condition. A Federal Court in Louisiana determined that summary judgment in favor of St. Tammany was appropriate because DeBlanc failed to file her discrimination claim within the required timeframe and failed to show that the time limit should be tolled. Thus, the claim was barred. DeBlanc appealed. The issue upon appeal was whether the trial court abused its discretion when refusing to apply equitable tolling to save DeBlanc’s claim. Equitable tolling is applied when the court decides there is a legal and justifiable basis to extend the time in which plaintiff can file her claim. The Fifth Circuit Court of Appeal agreed with the trial court and affirmed summary judgment in favor of St. Tammany School Board.

A former employee has three hundred days from the date of termination to file an Equal Employment Opportunity Commission (“EEOC”) complaint alleging that they were terminated based on discrimination. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). Filing a timely discrimination claim with the EEOC is a requirement that is subject to waiver, estoppel, and equitable tolling. Granger v. Aaron’s, Inc., 636 F.3d 708, 711 (5th Cir. 2011). However, equitable tolling is applied sparingly, and the burden is on the plaintiff to prove its application.

Continue reading

by

56-1024x678Having surgery is always a stressful situation. Nobody wants to leave the hospital only to return a short time later from complications due to the first surgery. This is unfortunately what happened to Mr. James Nelson, who sued his surgeon, Dr. F, in East Baton Rouge Parish. So, what happens when you develop a new medical condition after your surgery?

In November 2009, Dr. F performed gallbladder removal surgery on Mr. Nelson. Several hours after Nelson was discharged from the hospital, he experienced pain in his lower abdomen, stomach, and sternum. Nelson returned to the hospital, where he was informed that he was suffering from pancreatitis. Nelson was admitted for care in conjunction with the pancreatitis and was released four days later.  

One year later, Nelson requested the formation of a medical review panel, claiming that Dr. F committed medical malpractice by allowing contrast dye to enter Nelson’s pancreatic duct during his gallbladder removal surgery. Nelson claims that this was the cause of his pancreatitis. Nelson also claims that he was never informed that pancreatitis is a possible outcome from the type of surgery performed.

Continue reading

by

ladders-1173769-1024x683When you ask a friend for a favor, whether it is for a ride to the airport or for help cleaning up a room, you never expect that you will end up facing off against each other in a lawsuit. However, when you do end up in such an unfortunate situation, it is important to have a good lawyer on hand to ensure that the dispute is resolved in the quickest manner possible. Michael P. Cox found himself in just such a situation when his friend Laina Dutton offered to help him clean out the building of his recently closed business, Xtreme Nutrition, located in Baton Rouge, Louisiana. When Mr. Cox was out of the room, Ms. Dutton decided to climb a ladder and remove a banner that was hanging on the wall. The ladder was not in a secure location and Ms. Dutton fell backward off the ladder injuring her back and side. She sued Mr. Cox, Xtreme Nutrition, and Allstate Insurance, the insurer for Mr. Cox and Xtreme Nutrition. Ms. Dutton’s lawsuit for negligence was premised on the argument that Mr. Cox owed her a duty to erect the ladder safely, monitor and assist her in the use of the ladder, and warn her of any danger in using it. She argued that the ladder had been set up in a dangerous manner because it was not placed on a flat surface, that Mr. Cox did not warn her of this issue, and that he was at fault for her fall due to his inattentiveness. Ms. Dutton suffered injuries to her arm, back, and spine. For these injuries, she sought special and general damages.

However, the lawsuit never made it to trial. The Trial Court granted summary judgment in favor of the defendants and dismissed the case with prejudice. The Trial Court dismissed the case following pre-trial discovery based on its finding that there was a lack of evidence supporting a negligence claim and that Mr. Cox did not owe a duty to Ms. Dutton. Ms. Dutton appealed, arguing that the Trial Court erred in dismissing the case, but the Louisiana First Circuit Court of Appeal affirmed the dismissal. So, why was Mr. Cox not found negligent in Ms. Dutton’s fall? 

The Trial Court based its dismissal on its view that Ms. Dutton could not produce enough evidence to support the negligence claim. This was because Ms. Dutton was not an employee of Xtreme Nutrition, and Mr. Cox did not pay her to help him clear out the newly closed offices. Further, Ms. Dutton climbed up on the ladder while Mr. Cox was in another room. He had not asked her to climb the ladder and probably did not even know she had gone up. Ms. Dutton even admitted that she had used the ladder before the fall without any problems and did not think the ladder was defective in any way. Because Ms. Dutton had not been instructed by Mr. Cox to go up the ladder, and there was no evidence that he had set up the ladder in a negligent manner, the Trial Court determined that there was no evidence to support a negligence lawsuit following discovery. Thus, the Court dismissed the case before heading to trial. From this decision Ms. Dutton appealed, arguing that the Trial Court erred in two major ways. First, she argued that the only reasonable explanation for the ladder fall was that it had been improperly set up by Mr. Cox. Additionally, since Mr. Cox had set up the ladder, he owed her a duty to properly set it up and he had failed in that duty when he allowed her to climb the ladder in such an unsafe condition. Second, Ms. Dutton argued that in his deposition testimony, Mr. Cox had admitted that he set up the ladder in a dangerous manner by placing one leg on a part of an adjacent desk and the other on the ground, leading to an imbalance that caused the fall. Ms. Dutton argued that these two points were genuine issues of material fact that should preclude a summary judgment dismissal.

Continue reading

by

time-s-slipping-away-2-1419474-1-683x1024For any legal claim, there is a set period of time for which the claim must be brought. This set period of time is known as a statute of limitations, which can vary based on the type of claim. If a claim is not filed prior to the expiration of the statute of limitations, the right to bring the claim is extinguished. Furthermore, if an attorney was retained to bring the claim and failed to do so in a timely manner, the attorney may be sued for malpractice. So, in Louisiana can you sue your lawyer for not filing your claim on time?

There are four elements of a malpractice claim, these include (1) duty to act, (2) a breach of this duty, (3) and this breach of duty caused the (4) damages. The duty element requires the claimant to show that the attorney owed an obligation to act with reasonable care. The breach element requires the claimant to show that the attorney breached his or her duty to the claimant. The causation element requires the claimant to show that the attorney’s conduct caused some harm –– in this case, financial harm –– to the claimant. The damages element requires the claimant to show that he or she suffered actual financial loss as a result of the attorney’s conduct.

In the present case, Nathan Lewis allegedly injured his back, neck, and knees while employed with Archer Daniels Midland Company (ADM) as a longshoreman. Mr. Lewis reported his injuries to his employer, ADM, who denied Lewises compensation claim but informed him that he could file a Longshore and Harbor Workers’ Compensation Act (LHWCA) claim with the United States Department of Labor. Lewis then retained the services of Timothy Young and Timothy J. Young for purposes of filing such a claim, but then terminated their services on July 2, 2012.

Continue reading

by

fitness-series-2-1467446-1024x768Summary judgment is a judgment entered by a court for one party and against another party without a full trial. More specifically, summary judgment may be granted where the legal claim or cause of action can be decided upon certain facts without a trial. Can you receive summary judgement in a negligence case against a squat machine manufacturer?

In order to succeed in a motion for summary judgment, a movant must show (1) that there is no genuine issue of material fact, and (2) that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966. A “material fact” is any fact that may be important, valuable, or critical in deciding a case, the suppression of which may reasonably result in a different decision. The movant, then, bears the burden of showing that there is no genuine issue of material fact, but the movant need only identify the absence of factual support for one or more elements essential to the opposing party’s claim. If the opposing party then fails to produce factual support for the challenged elements of his claim, summary judgment in favor of the movant is proper.

In the present case, Thomas Nearhood incurred injuries while exercising on a squat machine at an Anytime Fitness gym in Pineville, Louisiana. The accident happened as a result of Nearhood’s failure to properly secure the weighted bar with the latching mechanism provided for that purpose. One year after sustaining his injuries, Nearhood filed suit against a number of defendants, including Precor, the manufacturer of the squat machine. In his petition, Nearhood claimed that the squat machine did not provide sufficient warnings or instructions to prevent injuries such as his.

Continue reading

by

businessmen-shaking-hands-1240995-1024x643A non-compete agreement often takes the form of a clause in an employment contract whereby an employer seeks to restrict a former employee’s ability to compete with the employer after the employment relationship is terminated. These types of clauses are usually valid if they are reasonable in scope, time, and area and line of business. But, what happens happens when someone ignores a non-compete agreement in Louisiana?

In the present case, four investors formed a company in Shreveport, Louisiana, called Endurall, Inc. to manufacture and sell rod guides to local businesses in the oil and gas industry. The four investors signed a non-compete agreement, which stated that, if any of them were to be terminated as shareholders, they would not establish another business to compete against Endurall for at least two years after termination.

Billy Joe Edwards was terminated as a shareholder of Endurall on July 31, 2013. Less than a year after his termination from Endurall, in March 2014, Edwards and his son formed a new company, DHE, LLC in Benton, Louisiana, which posed competition for Endurall in the manufacture and sale of rod guides. As a result, several Endurall sales representatives left Endurall to work at DHE, and some of Endurall’s customers switched from Endurall products to DHE products, causing Endurall’s sales to decline.

Continue reading

by

city-dark-dawn-248159-1024x683The state is not a guarantor of the safety of motorists using their roads, meaning you must be vigilant and careful while driving. See Thompson v. State of Louisiana, 701 So.2d 952 (La. 1997). But what happens when something falls on your car while you are driving on a public street, are you out of luck? Or is the state or owner of the fallen property potentially liable? Typically, the owner of an item (i.e., a tree) is liable for the damages caused by its “ruin, vice, or defect,” if it’s shown that they knew or should have known of the “ruin, vice, or defect” that caused the damage, and that the damage could have been prevented if the owner exercised reasonable care. La. C.C. art. 2317.1. However, if the damage is caused by “an act of God,” also known as force majeure, defined as an unusual, sudden, and unexpected force of nature, then this results in no individual being held liable for the damage caused. Brown v. Williams, 850 So.2d 1116 (La. Ct. App. 2003).

In 2007, Larry Mitchell (“Mr. Mitchell”) and a passenger were driving on Highway 80 in Ruston, Louisiana, when a large tree, estimated to be 70 feet tall, fell across the highway onto the front of Mr. Mitchell’s vehicle. The tree was near the highway but on the property of Beverly Hill-Hercules (“Ms. Hercules”). As a result of the tree falling on Mr. Mitchell’s car, he suffered severe fractures in his spine and nose and was bruised and lacerated. In fact, at the time of the trial in 2014, Mr. Mitchell was still required to wear a cervical collar for stabilization. Mr. Mitchell sought damages from Ms. Hercules, the Department of Transportation and Development (DOTD), and their insurers, alleging that the tree was sick (i.e., defective), and should have been removed prior to the accident.

At trial, DOTD and Ms. Hercules argued that the accident was “an act of God,” meaning they were not liable for the damages caused. Through testimony presented it was clear that the DOTD did not require its employees to examine all trees along the highway looking for diseased trees, rather, Tommy Lane Boddie (“Mr. Boddie”), a DOTD employee, testified that he only looked for and reported trees that were leaning and were in danger of imminently falling. Further, Ms. Herculeses’ deposition, which was read into the record, provided that it was very windy on the night of the accident and the tree was completely uprooted.

Continue reading

by

bandage-close-up-hands-1571172-1-1024x683What happens when a verdict that the employee is entitled to Workers’ Compensation Benefits has been handed down by the Office of Workers’ Compensation, but the awarded medical benefits have not and are not being paid? Generally, an employee will move for penalties and attorney fees to be imposed on the employer or its insurer for failure to pay the benefits. Under Louisiana law, awarded medical benefits must be paid within sixty days of the employer or insurer receiving notice that the employee has been awarded medical benefits. La. R.S. 23:1201. Failure to pay the medical benefits within sixty days requires the imposition of penalties and attorney fees on the employer or insurer unless the employer or insurer reasonably controverts the employee’s claim. Id.

Vanessa Weaver (“Ms. Weaver”) was awarded supplemental earning benefits (“SEB”) after proving that she was injured at work by falling and hitting her wrist on a pipe, and that she was not able to make 90 percent of her pre-injury wage regardless of whether she was in the same or similar occupation that she had prior to her on-the-job injury. See La. R.S. 23:1221. Her employer Louisiana Wholesale Drug Company, Inc. (“LWD”) contended that the Office of Workers’ Compensation erred in awarded Ms. Weaver SEB’s. As a result, LWD failed to pay Ms. Weaver her awarded medical benefits within sixty days of LWD and its insurers being put on notice of the award.

As mentioned above, LWD may get around the requirement to pay penalties and attorneys’ fees for their failure to pay Ms. Weaver her medical benefits within sixty days, if they reasonable controvert her claim. La. R.S. 23:1201. Meaning, LWD must present sufficient factual and medical information to reasonably counter the evidence provided by Ms. Weaver. Mouton v. Walgreen Co., (La. App. Cir. 2008). LWD was able to controvert Ms. Weaver’s claim with the theory that Ms. Weaver was able to continue working at her pre-injury job, making her pre-injury salary.

Continue reading

by

arm-bandage-hands-1409706-1024x709What happens with Workers’ Compensation Benefits when you are still able to work, but cannot make your pre-injury wage? Are you entitled to the difference in pre-injury and post-injury wages? Or are you out of luck? Supplemental earning benefits (“SEB”) are paid at two-thirds of the difference between what a person earned before their on-the-job injury and after their on the job injury, whether working or not. SEB’s are available to an individual who was injured at work and is unable to earn at least 90 percent of their pre-injury salary due to the injury. La. R.S. 23:1221.

It is uncommon for the employer, Louisiana Wholesale Drug Company, Inc. (“LWD”), in this case, to argue that the employee is not entitled to SEB’s for a multitude of reasons. Here, for example, LWD is arguing that Vanessa Weaver (“Ms. Weaver”), is not entitled to SEB’s because she voluntarily terminated her employment while LWD was accommodating Ms. Weaver’s work restrictions. Ms. Weaver, on the other hand, alleges that she terminated her employment because LWD was no longer accommodating her by requiring her to lift a box, which was against her work restrictions.

While working at LWD, a box of glass bottles began to fall, so Ms. Weaver dove to stop them from shattering, as she dove, she hit her wrist on a pipe. She went to the hospital, which noted swelling, bruising, and soreness. The doctor allowed her to return to work, but ordered restrictions, including that she was not able to use the injured part of her hand (i.e., her wrist). The injury occurred in March of 2013, and in July 2013 when she terminated her employment her wrist was still sore, and there was a palpable “click.” Further, in July 2013 her work restrictions had not been lifted. As a result, when Ms. Weaver terminated her employment, she alleged that she was entitled to SEB’s because she could not make her pre-injury salary, as LWD was no longer accommodating her injury.

Continue reading

by

farm-track-1375641-1024x683The transfer of property can create many legal pitfalls for clients. In this case, the plaintiff, Willow Chute Farms L.L.C, (“Willow”) based in Bossier Parish, alleged that the transfer of a right of way to the defendant, George McLemore (“McLemore”), was defective. The issue arose due to a 1984 agreement from prior owners of the properties that stipulated a set boundary between the two portions of land. In this agreement was a right of way, or servitude, which permitted the defendant, Mr. McLemore, to use the plaintiff’s gravel road to access his own land. So, how can you make sure your property line and your drive way are protected?

In November 2012, the McLemore’s acquired property adjacent to Willow Chute Farms by a cash sale deed. The deed stated that the property was conveyed “together with all and singular the rights of way, servitudes, easements, appurtenants, pertaining thereunto … unto Buyer and Buyer’s heirs, successors and assigns forever.” The servitudes and rights of way to the property were described in the original 1984 deed of transfer with the specific provision that the deed “reserves unto himself, his heirs and assigns, a right of way, and or servitude, for purposes of ingress or egress across the [.31 acre triangular tract of land].”

Later in 2012 and into 2013 Willow filed two lawsuits: (1) alleging that the servitude, or right of way, had not been in use by McLemore for more than 10 years; and (2) that the property line should be adjusted to reflect the old fence line. To justify the second suit, Willow alleged that the old fence had separated the two tracks of land for more than 30 years, and its “ancestors in title maintained continuous, uninterrupted, peaceful, and public possession up to the fence line for more than 30 years.” The trial court consolidated these two cases into one.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Berniard Law Firm
JUSTIA Law Firm Blog Design