Accidents

Underlying Medical Conditions, Can You Claim Res Ipsa Loquitur in a Lawsuit?

Published on: May 6, 2023 | By Berniard Law Firm

vcc_broadway_hi_res-scaled You think that when you’re being taken care of by hospital personnel, you are in safe hands and do not have to fear for your safety. However, if you are injured when being moved from a hospital cart to your bed, can you claim negligence based on res ipsa loquitur? The Fifth Circuit Court of Appeals addresses this question and the difficulties in recovering damages if you have an underlying preexisting condition.

Joshua Rice was a patient at Cornerstone Hospital for over a year before passing away in May 2012. Joshua’s father, Tommy Rice, brought a negligence suit against Cornerstone, claiming the staff entangled Joshua’s leg and arm when they moved him from a hospital cart to his bed. He suffered a fracture in his hip and shoulder as a result.

Believing they were not liable for Rice’s injuries, Cornerstone filed a motion 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. If a plaintiff such as Rice cannot prove his case at trial, then a court will dismiss it.

Can a Train be Held Liable for the Delay in Emergency Services?

Published on: May 3, 2023 | By Berniard Law Firm

new_train_station_at-scaled When tragedy strikes, seconds matter. Any delay to the emergency response network can cost lives and livelihoods. When a train runs through an intersection, all activity has to yield to that train. What follows is the calamitous story of how a train may have prevented EMS from responding to a fatal accident. It also helps answer the question; Can a train be held liable for the delay in emergency services?

Wilson Battley Jr. was driving down the road when he ran into a turning tractor-trailer. Fire and police crews swarmed the area to get Mr. Battley out from under the tractor-trailer. Unfortunately, while this accident unfolded, a KCS train entered and blocked the western side of the intersection where Mr. Battley was stuck. Wilson died under that truck before emergency services could get him out.

Wilson’s surviving family sued KCS, the train company, for knowingly blocking the intersection and delaying emergency services. Wilson claimed the train conductors knew about the accident and decided to block the intersection anyway, thus delaying emergency services which quickened Wilson’s death. In the 19th judicial district, the court awarded summary judgment to KCS because the court found Wilson had failed to present evidence that any emergency services were delayed due to the train. On appeal in the First Circuit Court of Louisiana, the court considered the testimony presented from both sides to determine if anyone was delayed by the train.

What Happens When There is More Than One Claim to a Deceased’s Property?

Published on: May 2, 2023 | By Berniard Law Firm

courthouse_court_law_justice_0-scaled Losing a loved one is hard enough. What happens, however, when multiple people claim they have a right to the same property the decedent owns at the time of their death? Cases involving multiple parties and claimants can get tricky, especially when one claimant was the decedent’s spouse and the other was their descendant, as was the case in the following lawsuit.

After being killed in an accident in New Orleans, Tommie Varnado’s widow, Patricia Varnado, filed a wrongful death and survival action lawsuit against the Louisiana Department of Transportation and Development (DOTD). Although Patricia agreed to settle with DOTD, she died before the trial court signed a consent judgment memorizing the settlement. The trial court then signed a consent judgment ten days after Patricia’s death. Months later, Kenneth John Gaunichaux filed a motion to substitute himself as the plaintiff in place of Patricia, alleging the two were married at the time of her death and that he was entitled to recover the settlement proceeds. The trial court permitted the substitution, although, before the settlement distribution, the DOTD questioned the validity of the consent judgment, as it was signed after Patricia’s death.

Melvin J. Owens Jr. then filed a motion to vacate and set aside Kenneth’s motion for party substitution, instead alleging he should be substituted as the plaintiff in place of Patricia. In his motion to substitute party plaintiff, Melvin argued he was the sole heir of Patricia and was the proper party to represent her and to receive the damage award.

St. John the Baptist Parish Car Accident Lawsuit Fails for Lack of Evidence

Published on: April 30, 2023 | By Berniard Law Firm

car_damage_auto_exterior-scaled Winning a lawsuit against an employer can be challenging. Employees are often transient, while the employer is an anchor in their community. Employer responsibility for an employee’s negligent action requires significant factual evidence. In a recent case out of St. John the Baptist Parish, a missing former employee and a lack of facts prevented the injured party from winning.

Herbert Collins was driving his car early one morning when Fredrick Davis struck him from behind. Kelly Construction employed Davis, and he was operating one of their vehicles at the time of the accident. Collins suffered many injuries, including spinal and muscle injuries. Collins filed a lawsuit against Davis and his employer Kelly Construction and Kelly’s insurance company Cincinnati Insurance. Collins alleged that Kelly Construction was vicariously liable for Davis’ actions because Kelly negligently allowed its vehicle to be operated by a careless, untrained driver. Davis was served with the lawsuit however was unable to be found and properly served. As a result, the lawsuit against Davis was dismissed. Even more detrimental was that without Davis, little evidence of his negligence and relationship with Kelly Construction could be gathered.

The Fortieth Judicial District Court for the Parish of St. John the Baptist dismissed the lawsuit after the trial finding there was a lack of evidence to prove vicarious liability against Kelly Construction. Even after a request for a new trial, the District Court denied the request. However, it upheld the dismissal citing a lack of evidence of an employer/employee relationship and a lack of evidence that the employee was acting in the scope of his employment. Collins appealed to the Louisiana Fifth Circuit Court of Appeal.

Louisiana Court excludes coverage for a woman severely injured by an elderly caregiver’s negligent loading of her wheelchair.

Published on: April 29, 2023 | By Berniard Law Firm

wheelchair_pattern_black_background_23-scaled Most adults fear the day that they will need to rely on the care of another to function. Unfortunately, the rampant negligence and mistreatment only exasperate this fear throughout the nursing home and hospice industry. Small mistakes by caregivers are normal and almost expected, yet, Shirley Marzell faced severe injuries after her caregivers improperly secured her to a wheelchair lift.

Marzell was a resident at Charlyn Rehabilitation Center in Tallulah, Louisiana, at the time of her accident. In 2010, Marzell was loaded onto a wheelchair lift for the lift van operated by Charlyn. During this process, Marzell and her wheelchair rolled off the platform. This mistake caused Marzell to strike her head on the pavement, causing severe injuries. This case reached the Second Circuit Court of Appeals after Marzell and her daughters appealed the summary judgment ruling of the trial court.

During the trial, the Marzells argued that Charlyn’s insurance carrier should pay for Shirley’s injuries. The insurance policy held by Charlyn, however, included an automobile exclusion. This provision shielded the insurance company from liability whenever Charlyn owned or operated an automobile. Operation was defined to include “loading and unloading”. The summary judgment ruling made by the trial court hinged on whether or not “loading or unloading” encompassed the loading of human cargo. The trial court held that it did, dismissing the case in favor of Charlyn and their insurance company.

Can a Litigant Exclude Evidence in a Car Accident Lawsuit?

Published on: April 26, 2023 | By Berniard Law Firm

law_justice_court_judge-scaled Imagine being on a jury – everything you hear has gone through a process of admittance to be used as evidence during the trial. What the jury is told often plays a role in what the jury thinks of the parties and how it assigns blame amongst them. The following lawsuit explores what happens when a defendant challenges the admittance of a piece of evidence it believes unfairly swayed the jury against it. It also helps answer the question; can a litigant exclude evidence in a car accident lawsuit?

Elsie Boudreaux and her mother, Thelma Bizette, passed away due to a car accident in Addis, Louisiana. The surviving family members brought a lawsuit against the Louisiana State Department of Transportation and Development (DOTD). A jury found the accident to be 60% the fault of Boudreaux and 40% the fault of the DOTD.

The DOTD appealed the trial court’s ruling, alleging it erred in denying their motion to exclude evidence of how the department collected crash reports at the accident site. They claimed evidence on crash report procedures was irrelevant to how the accident occurred. They also claimed they were unduly prejudiced because the evidence misled the jury.

A “Stay” of a Federal Suit May Have Far-Reaching Impacts for Prescription Purposes

Published on: April 24, 2023 | By Berniard Law Firm

clock_time_time_indicating_19-scaled Personal injury cases can often drag out for years in a confusing manner. This is especially true when there are disagreements about the proper venue and subject matter jurisdiction. A recent appeal discussed below tackles the challenges of dismissal of actions due to a lack of jurisdiction and the timing requirement of prescription.

This case arose out of a car accident in 2010 in Tangipahoa Parish. Plaintiffs initially filed in federal district court to recover damages for personal injuries, claiming the federal court had jurisdiction due to the diversity of citizenship between plaintiffs and defendants. Ms. Crowe, the defendant, had moved to dismiss due to her claim that she was a Louisiana resident at the time and, thus, diversity of citizenship did not exist. In 2011, the federal court denied Crowe’s motion.

However, in 2012 a different federal district court dismissed the plaintiff’s complaint due to lack of jurisdiction. In the current lawsuit, heard in state court, the defendant argued the case was prescribed on its face because it was filed over two years after the accident, and no defendant was served with process within the applicable period. Eventually, this issue was decided in a pre-trial proceeding, and then evidence regarding prescription was excluded from the trial. The trial court found for the plaintiffs, and the defendants motioned for a new trial based on the claim the court erred in denying the exception of prescription.

When do you Need your Doctor’s Testimony to Win your Workplace Injury Lawsuit?

Published on: April 23, 2023 | By Berniard Law Firm

doctor_dentist_dental_clinic-scaled When injured on the job, your doctor knows best until you get a second opinion. While your primary care doctor may advise you to recover instead of resume working right away, if you get a second opinion that finds you capable of working, that second opinion can trump your primary care doctor’s opinion.

In the Louisiana civil service world, an employee cannot refuse to go to work if they have not presented a viable reason for their inability to work. If a civil servant refuses to work, they could be terminated. While our court system sympathizes with people injured on the job, if one doctor says you can work, you need to present testimony from a doctor that you cannot work at the pre-termination hearing or risk losing your job. The following lawsuit out of New Orleans helps answer this question; when do you need your doctor’s testimony to win your workplace injury lawsuit?

Kerry West was injured on the job while a classified employee with twenty-five years of experience working for the Sewerage and Water Board of New Orleans (S&WB). Although West’s primary care physician ordered him to recover and not return to work, S&WB sent West to get a second opinion. This second opinion found West was capable of “light duty.” Accordingly, s&WB assigned West to a light-duty position for the duration of his recovery, but West followed the advice of his primary care physician and did not return to work.

When Does the Date of Disability Start for a Workers’ Compensation Claim?

Published on: April 22, 2023 | By Berniard Law Firm

disabled_parking_space_parking-scaled When you are injured on the job, it’s not always your employer’s or fellow employee’s fault. If you are injured while working by a third party, there are rules to follow when settling your claims. Following those guidelines is important because if you don’t, you may alter the workers’ compensation benefits owed to you.

Below is a story of one worker’s workplace injury and his path to physical and financial recovery. This case shows the importance of getting authorization from your workers’ compensation carrier before settling with third parties. It also helps answers the question; When does the date of disability start for a workers’ compensation claim?

While driving at work in early August 2012, Clyde Tolley was injured in a car accident. He continued to work until he was fired. Tolley then moved to Florida, where his injuries worsened. Tolley consulted a Florida doctor who recommended seeing an orthopedic specialist. Unfortunately, Tolley waited a year before engaging with the specialist.

What do I need to Prove for A Slip and Fall Lawsuit in Louisiana?

Published on: April 19, 2023 | By Berniard Law Firm

ford_e_series_wagon_10-1-scaled If you are walking down the aisle of a store and fall and injure yourself, you may think you have a winning lawsuit. However, that is not always the case. A recent lawsuit out of Gretna, Louisiana, establishes what a plaintiff needs to prove when filing a slip-and-fall lawsuit in Louisiana.

Terry Collins was walking down one of the lumber aisles in a Home Depot in Gretna, Louisiana when he slipped and fell on a liquid substance spilled on the floor. Home Depot and ISS Facility Services, Inc. had a Maintenance Services Agreement and before Collins fell, ISS employees used a floor-cleaning machine around where Collins slipped. Following the accident, Collins and his wife filed a lawsuit against Home Depot and ISS.

Home Depot moved for summary judgment, asking the court to decide in its favor based on the current facts. Home Depot argued under La. R.S. 9:2800.6. Collins failed to prove Home Depot had actual or constructive notice, meaning Home Depot employees were actually aware of or should have been aware of the spilled liquid in the aisle.