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prison-door-1515179-683x1024Law abiding citizen or not, people expect local governments to keep them safe, especially from dangerous conditions on public property.  But, just how much responsibility do local governments have in keeping public grounds safe?  This question was recently answered in a case coming out of Lafayette Parish.

On November 15, 2012, Summer Hunter, an inmate at Lafayette Parish Correctional Facility, was injured while being transported to the courthouse.  Prior to the transfer, Ms. Hunter was handcuffed and shackled at the legs.  Ms. Hunter was being escorted across the street by a deputy when her leg shackles became entangled on an expansion joint between slabs of the sidewalk.  This caused Ms. Hunter to fall, resulting in a fractured ankle.

On November 13, 2013, Ms. Hunter filed a lawsuit in the Fifteenth Judicial District Court against the Lafayette Consolidated Government (“The Parish”) for injuries sustained as a result of the fall.  In response, the Parish filed a motion to dismiss Ms. Hunter’s claim.  The Parish asserted that it could not liable for Ms. Hunter’s injuries because it was not aware of any problem with the sidewalk prior to the date of her accident.  The District Court granted the Parish’s motion to dismiss the lawsuit, finding that Ms. Hunter lacked the ability to present any evidence that the Parish had notice of the dangerous sidewalk.  The District Court acknowledged that cities have a responsibility to keep its sidewalk reasonably safe, however, reasonably safe and perfect condition are not synonymous.

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lab-work-1575843-683x1024Generally, claimants interested in bringing any cause of action are required to stick to certain procedures including filing the claim within a specified time period.  Medical malpractice claims are no different. Failure to file a claim within the statutorily imposed time frame will likely result in the dismissal of that claim.   Without even considering liability, a court will be forced to terminate a lawsuit merely because it was filed too late.   This, unfortunately, was the case for Linda Snavely in a recent case out of Lafayette.  

Linda Snavely brought a medical malpractice action on behalf of her deceased son, Brian Snavely, on June 24, 2014.   Brian was a patient of  Dr. Margaret Rice from November 2005 until his death on August 18, 2012.  Brian had been receiving treatment for injuries sustained in a series of serious accidents. Dr. Rice was familiar with Brian’s medical issues, which included chronic back pain, polycystic kidney disease, and a history of pulmonary emboli.  Brian sustained several injuries from a motorcycle accident and was expected to undergo surgery on August 1, 2012.  At the surgeon’s suggestion, Brian discontinued use of his chronic pain medication in anticipation of surgery.  Ms. Snavely noticed Brian was acting differently and potentially hallucinating and on July 30, 2012, took him to the emergency room.  Brian was diagnosed with drug withdrawal and admitted to Acadia Vermillion Hospital for controlled detoxification. On August 13, 2012, Brian met with Dr. Rice to discuss rescheduling his surgery.  During that visit, Dr. Rice prescribed Brian daily doses of Oxycodone, Soma, and Xanax.  Five days later Brian was dead. Brian’s cause of death was polydrug toxicity (an overdose).  

Dr. Rice filed an exception of prescription asking that the claim be dismissed because the claim was filed in an untimely matter. The Fifteenth Judicial Court for the Parish of Lafayette agreed with Dr. Rice that the claim was untimely filed.  Ms. Snavely appealed to the Louisiana Third Circuit Court of Appeal asserting that the claim was timely filed because it was filed within a year of her having discovered the alleged malpractice.  

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sickle-1383523-691x1024The workers’ compensation system exists to compensate employees when a work-related accident occurs.  Frequently, however, employers will attempt to deny or at least curtail benefits.  One common tactic is to blame an employee’s injuries on a pre existing medical condition rather than the work accident.  But does this excuse really work when a tree falls on an employee’s head?  As far fetched as it sounds, this was the scenario when an Ouachita Parish employer attempted to stop paying benefits after a tree accident.  

Bruce McCoy worked as a driver and groundsman for W.A. Kendall & Co., Inc. (“Kendall”). Mr. McCoy’s duties included cutting and dumping trees and tree limbs. While at work cutting trees,  a tree fell on Mr. McCoy causing a head injury. He needed treatment for headaches, neck pain, and a skull fracture. Doctors differed as to whether he could return to work and at what capacity. Once it was determined that Mr. McCoy could return to work with certain restrictions, Kendall offered him a job as a groundman.  Mr. McCoy did not respond however and Kendall terminated benefits.  A few months later, Mr. McCoy did request to return to his old position, however, he was denied.  Kendall’s vice-president opined that the denial was based upon Mr. McCoy’s possible inability to do the necessary work of a groundsman. Mr. McCoy then filed a claim for supplemental earning benefits (SEBs). The Workers’ Compensation Judge (WCJ) awarded $18,821.89 to Mr. McCoy in SEBs. Kendall appealed to the Louisiana Second Circuit Court of Appeal arguing that Mr. McCoy’s ongoing disabilities were actually the result of preexisting conditions because Mr. McCoy had diagnosed scoliosis.  

Workers’ compensation benefits are available to an employee for injuries sustained from an accident arising out of and in the course of employment pursuant to La. R.S. 23:1031(A).  A causal connection between accident and injury is established when an employee can demonstrate that before the accident they were in good health and post accident they have a disabling condition demonstrated by medical evidence supporting a reasonable possibility of a causal connection.  See Quinones v. USF & G, 630 So. 2d 1303 (La. 1994).  A pre-existing condition does not automatically bar benefits; the employee must show the accident aggravated the condition. See Peveto v. WHC Contractors, 630 So. 2d 1303 (La. 1994). Aggravation can be shown by a new disabling condition occurring at the time of the accident and supported by medical evidence.  

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field-1-1381631-1024x641Imagine you are in a car accident, one that is so severe it results in you being airlifted to a hospital.  Recovery time is extensive and your mental capacities are foggy at a minimum.  While hospital bound, someone other than yourself files a claim for your workers’ compensation benefits.  Due to the hospital stay, you receive no notice of the claim or court hearings yet a decision is made denying benefits.  The real kicker? All this occurs in a state where you do not live. Sound a tad unjust? Yet this recently happened to a Kaplan, Louisiana man.

Steve Richard, a Louisiana resident, was injured in an automobile accident while driving to a work location in Mountrail, North Dakota.  His injuries required him to be airlifted to a hospital in Minnesota where he spent about a month recovering.   While in the hospital, Mr. Richard’s employer brought a claim workers’ compensation benefits on behalf of Mr. Richard before the North Dakota Workforce Safety & Insurance (“N.D. Workforce”): the administrative body that regulates workers’ compensation claims in North Dakota.   Mr. Richard contended he did not bring the action, never had notice of the decision, and never submitted documents requested by the N.D. Workforce. Moreover, Mr. Richard never received any correspondence on the matter because it was all mailed to his Kaplan, Louisiana address while he was recovering in the Minnesota hospital.  The N.D. Workforce denied benefits finding that the accident was caused by Mr. Richard’s drug and alcohol use and therefore not within the scope of his employment.   Mr. Richard did not appeal this decision presumably because he never brought it in the first place.

A few months later, Mr. Richard did file a claim for workers’ compensation benefits in Louisiana.   His employer Quality Construction & Production, L.L.C, (“Quality Construction”) and their insurance company filed an exception to the claim arguing that the claim was barred by the doctrine of res judicata because the claim had already been decided by another court.  The Louisiana Office of Workers’ Compensation Judge (WCJ) denied Quality Construction’s exception and the case was appealed to the Louisiana Third Circuit Court of Appeal.    

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stripe-4-1189901-1024x768Automobile accidents are an unfortunately common occurrence; becoming increasingly more common with the temptations of texting and social media use while driving.   While not all accidents result in life-threatening injuries, they do most often come with at least the headache of assigning fault.  Figuring out who was at fault sometimes comes down to a game of “he said, she said” before a judge or jury.   And as the Louisiana Fifth Circuit Court of Appeal recently explained, the judge or jury’s interpretation of that game is difficult to reverse.   

On October 20, 2011, Rorilyn Prejeant was rear ended by Duane Smith on an expressway in Westwego, Louisiana.  Ms. Prejeant claimed that while she was sitting at a red light, Mr. Smith’s truck was sitting behind her.  When the light turned green, the car in front of Ms. Prejeant failed to proceed, blocking Ms. Prejeant’s car.  Ms. Prejeant claimed she saw Mr. Smith’s truck begin to move, honked her horn, yet Mr. Smith failed to stop thus hitting her.  Mr. Smith’s account was rather different.  He claimed that when the light turned green he suddenly felt his truck go out of gear.  When he attempted to put the truck in gear and proceed, he realized he hit another car but claimed the car was not present when the light turned green.  Mr. Smith contended that Ms. Prejeant told him she merged into Mr. Smith’s lane right as the light turned green.  The police report indicated both that Ms. Prejeant changed lanes before Mr. Smith saw her vehicle but also that Mr. Smith saw Ms. Prejeant’s vehicle come to an abrupt stop before he was able to refrain from hitting her.  

Ms. Prejeant did not seek medical attention at the time of the accident, however later sought medical care when she experienced headaches, back, neck and shoulder pain.  In January 2012, Ms. Prejeant spoke with an attorney concerning the accident and subsequently started frequent visits to the chiropractor for her injuries.  Ms. Prejeant also had an MRI conducted of her spine for injuries related to the accident. Ms. Prejeant filed a lawsuit against Mr. Smith for damages to her vehicle and medical expenses. After a trial before the Judicial District Court for the Parish of Jefferson, the judge concluded that Mr. Smith was liable to the Plaintiff in the amount of $16,000.00 for general damages and $5,105.00 in special damages for the medical expenses. Mr. Smith appealed to the Fifth Circuit claiming the District Court erred in disregarding the physical evidence of vehicle damage and in relying on Ms. Prejeant’s testimony.  

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old-country-red-barn-1633768-1024x683When someone dies because of another person’s negligence certain individuals can bring a wrongful death lawsuit against the negligent party. Normally, those who may recover under a claim for wrongful death and survival are limited to a certain class of persons. In such cases, the plaintiff can be the surviving spouse, a surviving child, the decedent’s parents, the decedent’s siblings, or the decedent’s grandparents. La. C.C. arts. 2315.1 (2016); La. C.C. arts. 2315.2 (2016). But what happens when there are multiple people who are entitled to bring the wrongful death suit? Can a biological father recover in his son’s wrongful death and survival suit when the son is presumed to be the child of another man? Recently, the Fourth Circuit Court of Appeal for the State of Louisiana addressed these issues when it decided a case involving a fatal car crash.

On March 8, 2013, Juan Joseph Hughes (“Mr. Hughes”) hit a parked car which caused his car to burst into flames. As a result of this accident, Mr. Hughes lost his life. Mr. Hughes’s parents, Joseph and Cherryn Burkette, filed a wrongful death claim, naming General Motor, LLC. and Banner Chevrolet as defendants. The Burkettes claimed that their son died as a result of the defendants’ negligence.

In response, the defendants argued that Mr. Burkette could not be part of the wrongful death suit. The defendants noted that the Burkettes and decedent did not share a last name. Ms. Burkette asserted that Mr. Burkette was Mr. Hughes’ biological father and that she was his biological mother. Ms. Burkette explained that she was in a relationship with Mr. Burkette while she was married to Jerome Hughes and that her son’s last name only reflected Ms. Burkette’s marital status at the time of Mr. Hughes’s birth.

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stethoscope-2-1420449-1-1024x605Medical malpractice suits are notorious in the legal community as being difficult and expensive cases. One reason why these cases are so difficult is because lawyers must hire and rely on numerous experts to argue why a professional should, or should not be, liable. But what happens when a plaintiff in a medical malpractice suit cannot find an expert to support his or her claim? A recent medical malpractice case involving a gynecologist illustrates this exact problem.

In this case, Ms. Sabrina Lee filed a suit against Dr. George Bailey alleging that Dr. Bailey committed medical malpractice. In 2010, Dr. Bailey performed a hysterectomy on Ms. Lee. Shortly after the surgery, Ms. Lee began experiencing sporadic urine leakage. Ms. Lee, concerned about the leakage, scheduled multiple appointments with Dr. Bailey to address her concern. After multiple visits, and no improvement in her condition, Ms. Lee decided to visit another doctor, Dr. Charlie Bridges. Dr. Charlie Bridges, a urologist, determined that Ms. Lee had a ureterovaginal fistula. Following this determination, Dr. Bridges removed the ureterovaginal fistula. After the removal, Ms. Lee experienced no more leakage.

After the removal of the ureterovaginal fistula, Ms. Lee filed a lawsuit against Dr. Bailey. Dr. Bailey filed a motion for summary judgment. A motion for summary judgment is a procedural device used to “secure the just, speedy, and inexpensive determination of [] action[s].” La. C.C.P. art. 966 (2016). The party seeking summary judgment has the burden of proof and must show that there is no genuine issue as to material fact, and that the moving party is entitled to judgment as a matter of law. For Ms. Lee to successfully win her medical malpractice case, she must prove (1) the applicable standard of care; (2) a breach of the applicable standard of care; and (3) a causal connection between the breach and the resulting injury. La. R.S. 9:2794 (2016). Expert testimony is needed to prove the causal connection between the breach of the standard care and the injury.

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crash-car-1180834-1024x827Sometimes judges and juries make mistakes that prevent injured parties from obtaining the relief they deserve. Both judges and juries can be swayed by arguments and make rulings that seem contrary to the weight of the evidence presented at trial. In such a situation, it is important to have an excellent attorney on your side to assert your rights and present you with proper avenues of appeal. Kimberly Guidry found herself in just this position after the trial court awarded her no damages for injuries she sustained in a car accident in Erath, Louisiana.

Ms. Guidry was injured in a three car accident while a passenger in her brother’s pickup truck. The accident occurred when Karl Creduer ran a red light, striking another person’s vehicle. This other vehicle then crashed into a Ms. Guidry’s brother’s pickup truck. Ms. Guidry and her brother were both injured in the accident. Ms. Guidry was taken to the hospital in an ambulance due to complaints of pain in her back and knee. At the hospital, doctors took X-rays of Ms. Guidry, placed her in a cervical collar, and gave her prescription medicine for her injuries.

After leaving the hospital, Ms. Guidry saw three separate doctors in hopes of alleviating the pain caused by the accident. Through these doctor visits, it was determined that Ms. Guidry had pre-existing arthritis and pre-existing degenerative conditions in her spine and knee. These ailments arose prior to the accident. According to the doctors, the accident aggravated these ailments.

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house-i-1491881-1-1024x768In law, deadlines and rules of procedure are very important. Good cases can be lost because someone missed a deadline or did not understand and follow a procedural rule. That is why it is so important to ensure you have a good attorney who understands the rules of procedure and who keeps close track of deadlines, especially those for appeals.

This importance is aptly illustrated by a recent decision from the Fifth Circuit Court of Appeal for the State of Louisiana. The case, Hawkins v. Willow Inc., involved 250 owners of homes located in the Village Green subdivision in Jefferson Parish. The homeowners sued several entities, including the developer of the subdivision and the insurer of their home warranties, alleging that the subdivision was built on land that was unsuitable for building and that the homeowners’ homes were damaged as a result.

Unfortunately for the homeowners, the warranty mandated arbitration of disputes, a step which the homeowners failed to take before filing suit. Because the homeowners failed to arbitrate their dispute, the trial court dismissed the home warranty company from the lawsuit and ordered arbitration of all claims. The homeowners did not seek review of the trial court’s ruling. Instead, the homeowners waited over two years to address the ruling. The homeowners then requested the trial court to grant them a new trial to pursue claims against the home warranty company and for the trial court to rescind its arbitration order because of newly discovered evidence. The home warranty company contested the homeowners’ requests. It asserted that the trial court did not have jurisdiction over the matter because the court previously dismissed the case. The trial court agreed with the home warranty company, ruling that it did not have jurisdiction and additionally denying the request for a new trial. The homeowners, displeased with the result, appealed the trial court’s decision.

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fiji-islands-1370935-1024x741Imagine buying land and then realizing that it was already occupied. What can the purchaser do when faced with this situation? What rights do the occupants of the purchased land have? Recently, the Third Circuit Court of Appeal for the State of Louisiana addressed these questions when deciding whether Saline Lakeshore, LLC (Saline Lakeshore) owned Horse Island after it purchased the property.

It all started in 2013 when Saline Lakeshore purchased Horse Island, which is land near the Saline Lake and Saline Bayou in Avoyelles Parish. At the time of the purchase, four individuals, Marlon Littleton, Buddy Cannon, Frank Morace, and Eric Morace, lived on the island in “camps.” These camps were housing structures which the four used to float to Horse Island. These houseboats were built in a way to float whenever Horse Island flooded, which was a frequent occurrence. When the island was not flooded, the four occupants would take care of the dry land by clearing and maintaining the camp yard. Additionally, the four occupants built docks, sheds, pavilions, roast pig cookers, fish skinning rocks, and water wells on the property. All of these improvements occurred prior to Saline Lakeshore purchasing Horse Island.

After buying the property, Saline Lakeshore sent Littleton, Cannon, and the Moraces a letter requesting that they remove themselves and their property from the island. Littleton and Cannon filed a possessory action against Saline Lakeshore, as did the Moraces. A possessory action is an action to stop the disturbance of property one possesses. To establish a possessory action, one must prove: 1) person had possession of the property, 2) the possession was uninterrupted for more than a year prior to disturbance, 3) the disturbance was a recognizable disturbance under Louisiana law, and 4) the action was instituted with a year of the disturbance. La. C.C.P art. 3658 (2016). The two separate actions were consolidated into one action for efficiency. Littleton, Cannon, and the Moraces then filed for summary judgment. The trial court granted the motion for summary judgment finding that the four occupants satisfied the requirements under Louisiana law. Summary judgment is when a trial court decides a case before it goes to trial. To obtain a summary judgment, both sides must agree on the material facts of the lawsuit. The trial court then makes the determination of the law, granting judgment to one side.

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