Litigation

Understanding Open and Obvious Defects: Implications for Personal Injury Claims

Published on: July 5, 2023 | By Berniard Law Firm

sidewalk_texture_background_1089989-scaled When it comes to personal injury claims resulting from slips, trips, or falls, the concept of open and obvious defects plays a significant role. Failing to act reasonably or being harmed by an apparent defect may hinder your ability to recover compensation for your injuries. This case exemplifies the importance of these factors in determining liability.

Ray Eskine was a permanently disabled individual who used a walker to move around. When trying to see how long the grass was on his lot across the street, he walked across an elevated walkway in front of his house. One of the wheels on his walker slipped, causing him to fall into a ditch and get injured.

Eskine and his wife filed a lawsuit against the City of Gretna and its insurer, claiming the walkway was defective and presented an unreasonably dangerous condition. They claimed the City of Gretna was responsible for the care of the walkway and had knowledge of the defective condition that resulted in his injury.

Supermarket Not Liable For Slip-and-Fall Because Of Lack Of Constructive Notice

Published on: July 4, 2023 | By Berniard Law Firm

accident_injury_risk_banana_0-scaled When you make a quick run to the store, the last thing you expect is to be injured while shopping. If you slip and fall at a store, you might expect the store to be responsible for any injuries you might have suffered. However, Louisiana law requires that a store have actual or constructive knowledge of the hazardous condition to be held liable. Therefore, if you are considering filing a lawsuit against a store for a slip-and-fall accident, it is essential to provide evidence of the store’s knowledge so your claim does not get dismissed.

Quentella Batiste was shopping with her granddaughter at Vernon’s Supermarket in Lutcher, Louisiana. Batiste slipped and fell in a puddle of water in the beer and beverage aisle as she was headed to check out at the front of the store. She injured her shoulder, which required surgery. Batiste and her husband filed a lawsuit against Vernon’s Supermarket and its insurer.

Vernon’s Supermarket filed a summary judgment motion, arguing the Batistes could not prove Vernon’s Supermarket created or actual or constructive knowledge of the hazardous condition of the purported water on the floor, as required under the Louisiana Merchant Liability Statute, La. R.S. 9:2800.6. Vernon’s Supermarket provided deposition testimony where Baptiste said she did not know where the substance she slipped on came from, how long it had been there, or whether anyone at the store knew the substance was present before she fell. They also provided surveillance footage and testimony from several employees to support Vernon Supermarket’s claim no one knew about the substance before Batiste’s fall.

Resolving Family Business Disputes: Navigating Complexities and Seeking Resolution

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

family_family_posing_psychotherapy-scaled Family businesses can present challenging legal issues. Although you might feel like you can trust your family members to do the right thing, this is not always true, especially when large sums of money are involved. This case illustrates the complexities that resulted from agreements related to ownership of a family business, which was only resolved following multiple appeals.

Sam Broussard Jr. (BR) and his three sisters each owned 25% of Sam Broussard Trucking (“SBT”). After their parents died, BR was the president of SBT. His sisters agreed to make him the majority owner of SBT. Each sister received a Stock Redemption Agreement (“SRA”). Under the SRA, each of the three sisters agreed to transfer 171.5 shares of SRT stock back to SRT for $200,000.

One of his sisters, Guillory, filed a lawsuit against BR, claiming he had not kept his promises related to the SRA. At trial, the jury found BR had not given Guillory sufficient profits, as promised. The jury also found BR had violated the Louisiana Unfair Trade Practices Act, La. R.S. 51:1401. The jury awarded Guillory $69,084 for this violation. The jury also found Guillory’s error concerning the SRA invalidated it.

No Legal Malpractice Where Underlying Medical Malpractice Claim Was Meritless

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

hammer_court_judge_justice_3-scaled When considering a legal malpractice claim, it is crucial to understand that proving your attorneys’ negligence alone is insufficient. To establish the merit of such a claim, you must demonstrate an underlying loss resulting from their negligence. This requires presenting compelling evidence that your original claim would have been successful had your attorneys not been negligent. The case of Shawn Cupit, who pursued a wrongful death lawsuit, highlights the significance of providing admissible evidence and the challenges involved in proving a legal malpractice case.

Shawn Cupit hired Joseph Moffett, a lawyer in Mississippi, to represent him in a wrongful death lawsuit involving the death of his mother. His mother had been a patient at a rehabilitation hospital in Concordia Parish, Louisiana, because of injuries related to a burned foot. One night, she climbed out a window at the rehabilitation hospital and was hit and killed by a drunk driver. They filed a lawsuit against the drunk driver, his insurer, and the rehabilitation hospital. They claimed the rehabilitation hospital had been negligent in observing their patient and did not provide a safe prejudice.

Moffett retained Roger Burgess and Baggett McCall as local counsel in Louisiana. Burgess submitted a request for a Medical Review Panel under La. R.S. 40:1231.8. The Medical Review Panel found the rehabilitation hospital had not failed to comply with the required standard of care. Burgess and McCall also retained expert witnesses, but the expert’s medical opinion letter concluded there was no evidence of the rehabilitation hospital committing medical malpractice.

Lost in Translation: A Quarter-Million-Dollar Contract Mistake Exposes Shared Responsibility

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

binding_contract_contract_secure-scaled Imagine, for a moment, you’re organizing a large-scale event with a long checklist of details to manage. Now imagine missing one tiny detail and having it cost you a whopping quarter-million dollars! That’s precisely the scenario that unfolded for Star Financial Services, Inc., a prominent ATM operator, in their dealings with Cardtronics, USA, Inc. The United States Court of Appeals for the Fifth Circuit reversed the District Court’s grant of summary judgment in favor of Cardtronics.

Star Financial operates a vast network of ATMs across Maryland, the District of Columbia, and Virginia. They signed a contract with Cardtronics to handle the electronic transfer of funds associated with their ATMs to keep the wheels turning. The setup process for this arrangement required Star Financial to provide Cardtronics with specific account details. A system that worked smoothly until it didn’t.

In 2015, Star Financial submitted the setup forms for three new ATMs. However, they mistakenly provided an account number belonging to a third-party merchant instead of their Settlement Account. Realizing their mistake, they sent a correction the next day, but Cardtronics only corrected one of the three ATMs. This discrepancy led to $250,000 being directed to the wrong account.

A Slippery Case: How a Lease Agreement Swayed a Personal Injury Lawsuit Against a Medical Facility

Published on: June 28, 2023 | By Berniard Law Firm

slip_up_danger_careless-scaled Imagine attending a routine medical appointment at your local doctor’s office. You enter the premises expecting a standard check-up, but unexpectedly, you trip over a defective threshold and fall onto a hard terrazzo floor. This unsettling scenario is precisely what Lois J. Tate encountered in their accident, sparking a personal injury action against Touro Infirmary and Louisiana Children’s Medical Center. The Louisiana Fourth Circuit Court of Appeal affirmed the Trial Court’s decision to grant summary judgment in favor of the defendants, Touro Infirmary, and Louisiana Children’s Medical Center.

In a life-altering event, Tate tripped over what she claimed to be a defective threshold at the office of Dr. Shelton Barnes. The office was located in a building leased from Touro Infirmary. This unexpected fall led to injuries, which prompted Tate to file a lawsuit for damages based on negligence and strict liability against the defendants, including Touro Infirmary, Louisiana Children’s Medical Center, and Dr. Shelton Barnes. Tate’s claim encountered a significant challenge when the Trial Court granted summary judgment favoring the defendants. Tate could not prove a crucial element of her claim—Touro’s knowledge of the alleged defect. Undeterred, Tate appealed the decision.

Under Louisiana law, a summary judgment is applied when there’s no genuine dispute regarding a critical fact that could influence the relief a litigant seeks. To successfully contest a summary judgment, a plaintiff cannot only rely on allegations or speculation. They must present substantial proof of a genuine issue of material fact. For Tate, this involved demonstrating Touro’s awareness of the defect. Simon v. Hillensbeck.

City Cannot Claim Immunity For Hurricane Damage When Alleged Misconduct Predated Hurricane

Published on: June 27, 2023 | By Berniard Law Firm

storm_damage_oak_tree-scaled Hurricanes can result in significant property damage, including flooding with contaminated water. When faced with such a situation, homeowners may wonder if they have a viable lawsuit against the responsible parties, such as the company responsible for the contaminants or the city involved in managing the wastewater system. The following case sheds light on the legal considerations surrounding property damage caused by contaminated floodwater and the potential liability of the responsible entities.

Ronald and Virginia Colson owned property in Pineville, Louisiana, that was damaged by Hurricane Gustav. They claimed their property was flooded with water contaminated with contaminates from Colfax Treating Company’s wood-treating facility. As a result, they claimed they were evicted from their home.

Colfax had a permit to dispose of materials in Pineville’s wastewater system. The Colsons filed a lawsuit against Colfax and the City of Pineville. The Colsons claimed the City of Pineville did not timely activate pumps for evacuating waste and stormwater, failed to properly maintain or inspect these pumps, and improperly allowed Colfax to dispose of the contaminates at above-legal limits.

Unclaimed Vacation: Resigning from Your Job with Unused Day

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

vacation_beach_maldives_657311-scaled We all cherish the idea of collecting vacation days, envisioning the blissful trips we’ll take in the future. But what if you find yourself resigning from your job with a surplus of accrued vacation days that you haven’t had the chance to use?

David Bodenheimer had worked for Carrollton Pest Control and Termite Company (“Carrolton”) for twenty-three years when he signed to resign. He accrued 1.25 vacation days per month. When he resigned from Carrollton, Bodenheimer claimed he still had twelve accrued vacation days for that year and 6.25 days from the prior year, totaling 18.25 of accrued, unused vacation days. Upon his resignation, Carrollton only paid Bodenheimer for 3.25 of the 6.25 days he had accrued in the prior year. When his written demands for payment for his additional accrued vacation days proved futile, Bodenheimer filed a lawsuit against Carrollton for his unpaid vacation under La. R.S. 23:631 and 23:632.

At trial, the only witnesses were Bodenheimer and the owner of Carrollton. Other evidence included Carrollton’s policy manual and Bodenheimer’s payroll record. Carrollton and its owner claimed employees such as Bodenheimer had to use all of their fifteen vacation days in a given calendar year. If not, they would lose the vacation days in the next calendar year. The trial court ruled in favor of Carrollton, finding Bodenheimer had read and understood the applicable policy regarding using vacation days. Bodenheimer subsequently appealed.

Pre-Trial Notice Did Not Waive Party’s Right to Jury Trial

Published on: June 25, 2023 | By Berniard Law Firm

courthouse_court_law_justice_0-scaled If you are involved with a lawsuit, you probably imagine your day in court involving a jury listening to the evidence and rendering a decision. After all, the US Constitution protects our right to a trial by jury. But what happens if the court issues a notice scheduling your trial to be heard in front of a judge instead of a jury?

Leigh Ann Schell and McGready Richeson (“Plaintiffs”) filed a lawsuit against Kuchler Polk Weiner LLC (“Kuchler”). Kuchler filed an answer and included a jury demand. Kuchler also paid the applicable filing fee. The trial court then held a pre-trial conference where it selected a trial date. At the conference, both parties’ attorneys and the trial judge signed a pre-trial notice that included the trial date for a trial to be held in front of a judge.

Later, Kuchler’s attorneys noticed the alleged error of setting the trial before a judge, not a jury. Kuchler filed a Motion to Continue, arguing it had not waived its right to a jury trial and had not authorized its attorneys to waive that right on its behalf. As evidence, Kuchler introduced an affidavit from its managing partner and authorized representative stating Kuchler had never authorized anyone to waive its right to a trial by jury. The trial court denied the motion, and Kuchler appealed.

Discharged Firefighter Entitled to Penalties and Fees for Unpaid Wages

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

firefighter_extinguish_fire_484541-scaled If you’ve ever left a job in the middle of a pay period, you might have had to wait to receive your final check. But what if you were fired, reinstated, fired, reinstated, and fired again? Payment of wages gets a bit more confusing.

In Alexandria, a firefighter named Kendall Dixon was terminated after a breath alcohol test in 2014. He spent the next several years defending his allegedly wrongful dismissal. Through separate litigation, he was also fighting for unpaid wages and fees. Both issues went through multiple stages of review to determine what sort of relief Dixon was entitled to receive.

Complicating Issue #2 – the question of compensation – was determining how Dixon would be paid for the time periods he would have been working (but for the allegedly wrongful termination) and for those he did work while his employment status yo-yoed.