Legal Definitions

Louisiana Court Finds Interdiction Inappropriate for Acadia Parish Mother, Despite Son’s Objections

Published on: May 1, 2023 | By Berniard Law Firm

louisiana_park_stream_pond If an individual is unable to care for themself or manage their financial or business affairs, legal intervention in the form of interdiction may be appropriate. If a court finds interdiction to be warranted, it may assign another person to make decisions for the disabled. The following case demonstrates when a court may deny an interdiction assertion.

John Dupuis filed a petition for interdiction in Acadia Parish, asserting that his mother, Linda Dupuis, was incapable of being employed, driving, balancing her checkbook, or paying her bills. In his petition, John also noted that his father, Kenneth Dupuis, had recently passed away, that Kenneth had always taken care of Linda, and that John should be appointed curator of Linda. Although Linda filed a motion denying John’s allegations, she also sought the appointment of her daughter, June Dupuis, as curator if the court found interdiction appropriate. John then responded with additional grounds for interdiction: that Linda had mental illness and epilepsy.

The 15th Judicial District Court for the Parish of Acadia then appointed Dr. Eddie Johnson as an examiner to provide his opinion on whether Linda suffered from the infirmities alleged by John, the appropriateness of the interdiction, and if a less restrictive means of intervention was available. Dr. Johnson indicated in his report that Linda showed no signs of cognitive impairment, could make competent major life decisions and that interdiction would not be necessary.

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.

What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

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

medical_instruments_examination_424729-scaled After a medical malpractice-induced injury, patients may need significant awards of damages to cover the expenses of a resulting disability. A case in Shreveport shows how to present substantial evidence of an ongoing need for care. It also helps answer the question; What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

In 2007, Dr. Anil Nanda operated on Barbara Wise to address weakness in her right shoulder. Unfortunately, during the surgery, Dr. Nanda accidentally made a small tear in the membrane covering the spinal cord. Although Dr. Nanda attempted to seal the tear, Barbara experienced ongoing post-surgical weakness in her upper and lower extremities. When Wise and her husband brought up her symptoms to Dr. Nanda at follow-up appointments, he told them that these complications were normal and would eventually go away. However, when the weakness persisted, Dr. Nanda ordered an MRI, which showed a spinal fluid leak putting pressure on Wise’s spinal cord. Although Dr. Nanda corrected the tear in a second surgery, Wise continued to suffer severe weakness in her extremities that required aggressive rehabilitation.

Wise filed a medical malpractice lawsuit against Dr. Nanda and Louisiana State University Health Sciences Center to recover the costs incurred due to her condition. She was awarded $1,355,740 for medical expenses and benefits between the injury and verdict, 2) $1,054,776 for future medical expenses 3) $517,000 for lost wages, and $250,000 for pain and suffering. LSU appealed the award of costs between the injury and verdict and lost wages.

When Can a Client Sue Their Former Lawyer?

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

statue_romagnosi_courthouse_rome-scaled
Negligent lawyers can get themselves into hot water by retaining confidential client documents. Often, this violation of professional responsibility will result in a malpractice suit.

The more egregious behavior, the more intensely the lawyer may find themselves being litigated against. For example, in the following appeal, a lawyer is sued from all angles as his former firm and his former client sue him to regain client files retained post-employment.

Thomas Glynn Blazier was fired from his job as an associate at a law firm in Lake Charles. The firm sued Blazier for damages, during which it became aware Blazier had kept confidential files, including those relating to client Elaine Marshall. When Marshall learned of Blazier’s actions, she intervened as both an individual and as the Estate to which the files related and fought to regain possession of the files. Blazier motioned against this intervention to no avail.

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.

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.

Can I Recover under the Jones Act if Rough Seas Cause a Back Injury

Published on: April 21, 2023 | By Berniard Law Firm

giant_wave_rough_sea-scaled Large waves and rough seas make boat travel a harrowing experience. But what happens if you are at work and fall out of bed during those stormy seas? Is the captain or company you work for liable under the Jones Act? The following case out of Louisiana helps answer the question; can I recover under the Jones Act if rough seas cause my back injury?

Richard Bosarge sued Cheramie Marine LLC (“Cheramie”) under the Jones Act after he allegedly suffered injuries aboard one of its utility vessels. See 46 U.S.C. § 30101. Before starting work, he had to complete a physical. During the physical, Bosarge responded he did not have any prior back pain or injuries, even though he had previously received medical care for his back pain. Nonetheless, Cheramie hired Bosarge to work as a relief captain.

Bosarge claimed he was injured due to the captain’s decision to travel through rough seas. He alleged the captain’s path caused him to come out of bed and get slammed down. Cheramie argued the waves were not that big, and Bosarge had not reported having an accident. The jury found Bosarge had not suffered an accident. Further, the jury also found Bosarge misrepresented or concealed facts during his pre-employment physical.

Can a State Fire Marshall be liable for Inspector Negligence in a Wrongful Death Lawsuit in Louisiana?

Published on: April 20, 2023 | By Berniard Law Firm

us_navy_040501_n_14 People rely on public services daily, from fire departments to police officers. But what happens if a public entity is responsible for an injury? Can they be held liable for negligence? A recent case out of Grand Isle, Louisiana, shows how public entities can be shielded from liability for negligent conduct in some circumstances. It also helps answer the question; Can a state fire marshall be liable for inspector negligence in a wrongful death lawsuit in Louisiana?

In 2012 a fire in the Willow Creek Apartments in Grand Isle, Louisiana, killed two occupants, Belle Christin Brandl, and Timothy Joseph Foret. Brandl’s three children filed a wrongful death lawsuit against the apartment’s owners, Steven Caruso and Willow Creek, L.L.C., their insurers, and the State of Louisiana through the Department of Public Safety and Corrections, Office of the State Fire Marshal (SFM) and its inspector. The plaintiffs argued Marchiafava as an inspector, failed to properly look into reports of fire hazards that caused the fire, failed to notify the building owners of any hazard and resolve the hazard, and falsified reports regarding his inspection of the Willow Creek building. SFM and the inspector denied the allegations arguing the inspector did investigate an unverified public complaint at the building, which revealed no serious life hazards. Further, the residents of the building did not have any further complaints of hazards.

SFM and the inspector filed an exception of no cause of action on the grounds SFM and the inspector did not owe a legal obligation, otherwise known as a duty, to the plaintiffs. The trial judge granted the exception. Then SFM and the inspector filed a motion to dismiss the complaint, which was granted, and the plaintiffs filed an appeal.

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.