Legal Definitions

Utility Ground Hole Fall Lawsuit Fails on Lack of “Constructive Notice”

Published on: April 18, 2023 | By Berniard Law Firm

manhole_manhole_cover_cable-scaled If you fall into a utility box with no cover, one would likely think they can recover for the damages they endured. However, in Louisiana, lawsuits aren’t as easy as you think. For example, is a company responsible for the utility box if it didn’t have “constructive notice” the ground hole cover was defective? The following lawsuit out of New Orleans shows the difficulties encountered when suing a utility company for a ground hole cover fall.

Antoine Perrier fell into a utility ground hole near the intersection of Press Drive and Haynes Boulevard. Perrier filed a lawsuit against Bellsouth Communications in which he alleged a failure to maintain the protective cover over the utility box. Perrier also noted that Bellsouth was liable due to the lack of adequate warnings of the dangerous condition of the utility hole near the busy Boulevard.

Believing they were not liable, Bellsouth filed a motion for summary judgment. Under La. C.C.P. art. 966(B)(2) a court should grant summary judgment when there is no genuine dispute of any material fact. If a plaintiff such as Perrier won’t be able to prove his case at trial then a court will dismiss it. This procedure allows for the efficient use of the court’s time. The summary judgment filed by Bellsouth, in this case, focused on constructive notice.

A Warning Cone and a Wet Floor, Who Wins in a Slip and Fall Lawsuit?

Published on: April 17, 2023 | By Berniard Law Firm

caution_cone_orange_traffic-scaled We have all seen warning cones and signs in front of a wet floor at a business. But what happens when you fall in front of the warning cone? Can the company still be held accountable for your injuries? The subsequent lawsuit, Kenner, Louisiana, shows how courts review slip and fall lawsuits on wet floors with warning signs in plain sight.

Marion Bertaut was a patron of the Golden Corral Restaurant, where she allegedly slipped in a puddle of water and sustained injuries. She filed a lawsuit against the restaurant, seeking damages for her fall and injuries.

Corral filed a motion for summary judgment, arguing Bertaut could not prove there was an unreasonable risk of harm at the restaurant. Under Louisiana law, wet or slick floors marked by warning signage are not unreasonably dangerous. La. R.S. 9:2800.6. Corral provided a surveillance video showing a yellow warning cone placed in the area, and Bertaut passed it multiple times.

Can a School be Held Liable for a Visitor’s Injuries on its Campus?

Published on: April 16, 2023 | By Berniard Law Firm

school_primary_school_east-scaled Schools are institutions for learning and public meeting spots for numerous events. People come and go daily and the safety of all visitors is paramount. But what happens when a visitor to a school is injured on the premise? Can a school be held liable for a visitor’s injuries on its campus? The following case out of Kentwood, Louisiana, shows the need for adequate proof when pursuing a trip and fall lawsuit against a school.

John Williams went to pick up his grandson at Kentwood High School when he fell on what he described as a hole in front of the gym’s entrance. He filed a lawsuit seeking damages from the Tangipahoa Parish School Board (TPSB). TPSB filed for summary judgment, arguing the case should be dismissed because Williams could not show proof of unreasonable risk of harm at the school. The trial court granted the motion. The judgment was then appealed to the Louisiana Court of Appeal First Circuit.

In reviewing the matter, the appeals court noted TPSB is a public entity and, under the Louisiana Civil Code, a public entity is responsible for damages caused by the condition of buildings within its care and custody. La.R.S. 9:2800A. This legal concept is vicarious liability, in which a person or company is held liable for acts committed by a third party.

Baton Rouge Recreation and Park Commission Found Not at Fault for Child’s Injuries

Published on: April 15, 2023 | By Berniard Law Firm

louisiana_baton_rouge_state-scaled When someone is injured in an accident, the question often arises, who is at fault? Certain factors must be met to find fault in an injury case. The following case outlines the elements which must be proven to file a personal injury lawsuit against a public park in East Baton Rouge.

While climbing spectator bleachers at a park, two-year-old Derrick Albert Jr. (DJ) fell and landed on a concrete surface. DJ’s parents, Brittany Hasbert and Derrick Albert, Sr., brought a claim against the Baton Rouge Recreation and Park Commission (BREC) for the Parish of East Baton Rouge, pursuing damages for the injuries DJ sustained from his fall.

After receiving the lawsuit, BREC filed a motion for summary judgment to dismiss their claims. BREC argued DJ would be unable to prove the bleachers were defective and the bleachers were the cause of his injuries. BREC also argued that it didn’t have actual or constructive notice of a defect in the bleachers.

Considering a Lawsuit? Don’t Discard Evidence Critical to Your Case

Published on: April 14, 2023 | By Berniard Law Firm

detective_crime_scene_dagger-scaled An important safeguard in the law is the requirement for an accusing party to support its allegations with facts and, ultimately, evidence. There are multiple reasons to have this protection in place. Proceeding with a claim that makes a wrong conclusion against another party would not be particularly fair or just, nor would it be an effective use of court resources.

Louisiana courts entitle a party to move for summary judgment to press the opposing side to demonstrate there is a genuine dispute to resolve. La. Code Civ. P art. 966. If, for example, a plaintiff makes a claim that requires the support of physical evidence that they cannot produce, summary judgment will be granted. The following case out of Washington Parish, Louisiana, shows why, if you are considering a lawsuit, you should never discard evidence critical to your case.

Robert D. Byrd used a home-based oxygen machine provided by Pulmonary Care Specialists, Inc. (PCS). He was hospitalized for respiratory failure after being found unconscious by his mother, who reported that the machine was running at the time. Byrd’s machine did not undergo maintenance or repair before the incident. However, his mother did request service one day earlier. Byrd’s mother subsequently set the oxygen machine out with the trash, preventing follow-up testing or inspection.

Louisiana Medical Malpractice Lawsuit by Dental Patient Fails at Appeals Court

Published on: April 13, 2023 | By Berniard Law Firm

dentist_dental_dentistry_teeth-scaled Appeals from trial court decisions can be costly, especially if the result is again not decided in your favor. Tara Lorraine (“Ms. Lorraine”), a dental patient at Bluebonnet Dental Care, L.L.C., learned this the hard way after appealing a jury verdict decided against her. The Louisiana Court of Appeals for the First Circuit (“First Circuit”) affirmed that jury verdict and assigned costs of the appeal to be paid by Ms. Lorraine. The following case shows the difficulty in proceeding with a medical malpractice lawsuit in Louisiana based on alleged substandard dental procedures.

Ms. Lorraine alleged that her injuries occurred during several dental treatments over several months. First, on January 21, 2010, Ms. Lorraine accused Dr. Ross Quartano (“Dr. Quartano”) of spilling etchant on her throat, which left her with a permanent scar. Then, on April 30, 2010, she accused Dr. Louis Lamendola (“Dr. Lamendola”) of extracting one of her teeth without her consent. Finally, Ms. Lorraine claimed that Dr. Andre Bruni (“Dr. Bruni”) and Dr. Quartano failed to remove substantial underlying decay before they filled some of her teeth, causing her such extreme pain that eventually, she had to seek additional help from a different dentist.

Subsequently, Ms. Lorraine filed a complaint with Louisiana’s Patient Compensation Fund, asking for a medical review panel of each of the three doctors. Upon reviewing Ms. Lorraine’s complaint, the medical review panel found that there was no evidence to support a breach of the standard of care as it related to Dr. Quartano and Dr. Bruni and that a material fact existed regarding Ms. Lorraine’s informed consent with Dr. Lamendola’s removal of her tooth. Thus it did not necessitate an opinion from the medical review panel. However, despite these findings, Ms. Lorraine filed a lawsuit against the same three doctors in the 19th Judicial District Court. Like the medical review panel, the jury found that Ms. Lorraine failed to prove the breach of standards of care. Therefore, the court entered a judgment in favor of the doctors, dismissing Ms. Lorraine’s claims and denying her request for a new trial.

How the Louisiana Code of Civil Procedure Article 971, The “anti-SLAPP” Statute Used in Court

Published on: April 12, 2023 | By Berniard Law Firm

bear_wildpark_poing_play Rights, even those granted under federal and state constitutions, are not without limitations. As Yaroslav Lozovyy (“Lozovyy”), a former research assistant at Louisiana State University (“LSU”), discovered in an appeal of his lawsuit against an interim director, Richard L. Kurtz (“Kurtz”), and a vice chancellor, Thomas R. Klei (“Klei”), courts take allegations of making false statements seriously. The following case shows how the Louisiana Code of Civil Procedure Article 971, The “anti-SLAPP” Statute is used in Court.

While most statements are protected under the United States Constitution’s First Amendment Freedom of Speech Clause, courts have since deemed certain limited categories of speech unprotectable such as (but not limited to) fighting words, incitement, and obscenity. In addition, defamation, which is the communication of a false statement that harms the reputation of another, is another category of speech that is not protected under the U.S. Constitution nor Louisiana state law.

After being employed for over ten years as a research assistant on an annual contract-term basis at LSU’s J. Bennett Johnston Sr. Center for Advanced Microstructures & Devices (“CAMD”) in 2012, Lozovyy’s contract was not renewed, and his employment ended. Lozovyy subsequently emailed a fellow research collaborator, Peter Dowben (“Dowben”), a physics and astronomy professor at the University of Nebraska-Lincoln, stating that he heard a rumor that he was fired because he stole research data and Kurtz was therefore forced to fire him.

New Orleans police officer’s disciplinary violation is reversed

Published on: April 11, 2023 | By Berniard Law Firm

fbi_police_ford_interceptor-scaled Police officers are trained to enforce the law and are obligated to follow the law. However, when a police officer violates the rules of policing, the officer has a right to written notice and then the right to an appeal if he feels the punishment is unfair. The following case out of New Orleans shows how a police officer’s appeal of disciplinary action can overturn the department’s actions.

Officer Jones (Jones) and Officer Smith were sent to Canal Street due to a disruption at a bar. The officers were notified that Ms. Dana Earles broke another patron’s sunglasses while under the influence. The officers arrested Ms. Earles. While in the police vehicle, Ms. Earles recounted an unidentified officer had raped her at an unspecified time. The officers informed their superior of the arrest and Ms. Earles’s allegation.

An investigation was launched against Jones by the New Orleans Police Department (NOPD) and the Public Integrity Bureau (PIB) for his failure to abide by Rule 4, Performance of Duty clause of the Civil Service Commission (CSC). Jones was later reprimanded. Jones petitioned the reprimand.

Louisiana Court holds that tutors are not considered a “parent” entitled to bring a claim for loss of consortium

Published on: April 10, 2023 | By Berniard Law Firm

child_musical_instruments_1065633-scaled Car accidents are extremely traumatic events that can impact the lives of anyone involved. The legal issues arising after a car accident can be complex and affect everyone involved. For example, what are the rights of a tutor when bringing claims on behalf of the children they are responsible for? Will they be considered “parents” under the law and be allowed to bring a claim for loss of consortium? The following case out of Baton Rouge discusses those issues in relation to a car accident.

Geneva Marie Fils, an infant at the time, suffered severe personal injuries after being in a car accident. After the accident, Geneva’s maternal aunt and tutor, Calverna Reed, filed a lawsuit related to the car accident. In it, she sought damages on behalf of herself and Geneva for their loss of consortium. A loss of consortium claim is brought when someone has been deprived of their family relationship benefits (ex: love and affection) due to injuries caused by the defendant.

The trial court dismissed Reed’s claim for loss of consortium. Afterward, the First Circuit Court of Appeals took the case to determine whether Reed’s loss of consortium claim could stand, considering that she was not a parent or guardian of Fils at the time of the accident.

What If You’re Unable to Pay a Bond Required by Law?

Published on: April 9, 2023 | By Berniard Law Firm

hospital_corridor_operating_room-scaled Filing a medical malpractice lawsuit in Louisiana requires the plaintiff to pay a bond before the medical review panel is conducted. But what do you do when you cannot pay the bond? Is there a way to still proceed with your case? The following medical malpractice lawsuit out of Jefferson Parish shows that if you are granted pauper status under La. C.C.P. art. 5181, you could be relieved of the bond requirement.

Delores and Elvorn Tate filed a medical malpractice lawsuit against Ochsner Clinic Foundation for personal injuries and other damages. The Tates alleged the negligent placement of an IV into Delores’s left hand during her hospitalization at Ochsner Hospital caused her injuries. Following the submission of Tate’s lawsuit, Ochsner filed a motion for the Tates to post a bond for all the costs of the medical review panel.

Louisiana law requires those filing a medical malpractice lawsuit to post a cash or surety bond. The amount of the bond must be approved by the court. After the lawsuit, the bond will be forfeited to the defendant’s healthcare provider for reimbursement of the costs of the medical review panel if the Defendant wins. However, if the defendant is found liable, they will be required to reimburse the claimant an amount equal to the bond. La. R.S. 40:1299.47(I)(2)(c).