Litigation

If You Approach a Barking Dog and It Bites You, is the Owner Liable for your Injuries?

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

dog_animal_greyhound_983014-scaled While holding the owner responsible for a dog’s behavior is typically the norm, most reasonable people would know not to approach a barking dog in a gated residence. However, Demetrious Frazier found himself at odds with Luke Difulco after being bitten by one of his dogs while performing his work duties at their home. The following lawsuit answers the question; if you approach a barking dog and it bites you, is the owner liable for your injuries?

Frazier was an employee of the City of Alexandria and worked as a meter reader. He visited the Difulco’s home one afternoon to read their residential meter. As he approached the gate, two dogs began barking, followed by Luke Difulcot’s son, Daniel, who came outside to greet Frazier. Although Daniel offered to kennel the dogs for Frazier’s comfort, he entered through the gate without responding, and the ten-year-old black Labrador bit him on the hand.

In contrast to Daniel’s testimony, Frazier claimed that he saw no evidence of a dog when he approached the Difulco’s residence and entered through the gate to check the meter. After entering the gate, he was attacked by a dog, and then a second one approached him. Frazier received workers’ compensation and medical payments from his employer, and he sought additional damages against Luke Difulco through the lawsuit subject of this appeal.

Carefully Review Lawsuit Releases Before Signing, or Suffer the Consequences

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

louisiana_state_coat_arms-scaled While a settlement can be a beneficial way to end a legal dispute, it can have long-lasting implications. If you are considering signing a settlement agreement and release, you must understand the possible effects of entering into such an agreement. A prior settlement agreement and release could result in a dismissal of a future lawsuit you bring against a party on the other side of the settlement agreement. The following lawsuit shows why one should carefully review any settlement agreement before signing. Otherwise, you may suffer harsh consequences.

Steven Richard was involved in a car accident in Concordia Parish, Louisiana. Richard claimed that while driving westbound on U.S. Highway 425, his vehicle was hit by a car Fred Taylor was driving. Richard later sued Taylor, Fred’s Automotive (the shop where Taylor’s vehicle was repaired), and Caitlin Insurance, the insurance company that covered Fred’s Automotive. This article will focus on the claims Richard brought against Taylor, and the next post will focus on the claims Richard brought against Fred’s Automotive and its insurance company.

Taylor filed an exception of res judicata. Under La. R.S. 13:4231, a claim can be dismissed when there was a final and valid prior judgment involving the same parties and the cause(s) of action in the second suit existed at the time of the first judgment and arose out of the same occurrence as the first action. Taylor argued that the lawsuit against him should be dismissed under the doctrine of res judicata because Richard had previously signed a release with him. Taylor introduced into evidence a document titled “Release of All Claims” that Richard had previously signed. The trial court dismissed the claim against Taylor, holding the res judicata applied. Richard appealed, arguing that the trial court erred in finding that res judicata applied.

Evidence of Knowledge Required to Prevail in Louisiana Slip-and-Fall Lawsuits

Published on: March 31, 2023 | By Berniard Law Firm

dollar_general_store_in-scaled If you slip and fall over an item that has fallen at a store, you might think that you will be able to recover for your injuries in a lawsuit against the store. However, it is not enough to simply show that you slipped and fell. Instead, you must show that the store knew about or created the condition that caused you to slip and fall. Because Lilly Edwards could not show this, the court dismissed her lawsuit against a Baton Rouge, Louisiana, Dollar General store.

While shopping at a Dollar General store in Baton Rouge, Louisiana, Edwards tripped on a box that she later described as a poster board. She claimed this poster board fell into the aisle where she was shopping. Edwards claimed she tripped on it as she went around the corner, which caused her to fall and injure her knee. After this fall, Edwards sued the Dollar General store. Dollar General filed a motion for summary judgment, which the trial court granted. The trial court held that Edwards could not prove that Dollar General had known about the hazardous condition that resulted in her fall. Without this knowledge, Dollar General could not be found liable. Edwards then appealed the trial court’s grant of summary judgment to the Louisiana First Circuit Court of Appeal.

Summary judgment is appropriate when the evidence shows no genuine issues of material fact. See La. C.C.P. art 966(B)(2). Under Louisiana law, a store owner such as Dollar General owes a duty to people who come to shop there to exercise reasonable care to ensure its floors are kept in a reasonably safe condition and that the store has no hazardous conditions. See La. R.S. 9:2800.6. Here, Edwards had the burden of proving: (1) the poster board that she tripped over was an unreasonable risk of harm; (2) Dollar General had either created or had knowledge of the poster board on the floor; and (3) Dollar General did not exercise a reasonable standard of care.

Probationary Employees Beware: Employer Takes Issue with Louisiana Workers’ Compensation Judge Decision on Appeal

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

workers_road_workers_site-scaled Employment law disputes are very fact-specific inquiries. Judges, especially workers’ compensation judges, are typically well-equipped to handle these cases. But when a judge mishandles the facts or misinterprets the law having an excellent attorney in your corner helps in the appeal process. For the Sewerage & Water Board of New Orleans (“SWBNO”), the appeal detailed below involves several issues that SWBNO argues were in error based on the workers’ compensation judge’s decision.

To provide important background information, this case involved a former employee, Catherine Johnson (“Johnson”), who was hired by SWBNO in April 2013 as a probationary employee, meaning she was not considered a full-time employee during the six months after she started the job. However, while Johnson was still in this designated probationary period, she was injured on the job during her employment with SWBNO. About a month before Johnson’s probationary period was set to end, SWBNO held a pre-termination hearing that determined Johnson displayed a poor work performance unrelated to her injury, which caused her employment to be terminated.

Johnson subsequently filed a disputed claim for compensation against SWBNO with the Office of Workers’ Compensation that included a request regarding penalties for failure to timely reimburse mileage expenses, among other payments for wages and benefits. SWBNO denied the claims, and a hearing ensued before the workers’ compensation judge.

Injured by Stocking Cart in Grocery Aisle, Whose Fault is it?

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

shopping_cart_shopping_supermarket_1-scaled Everyone can picture a grocery store on a busy day. The aisles are congested, and workers are hurrying to replace products on the sales floor. There may be stocking carts blocking walkways. Who is responsible if a shopper trips over a worker’s cart and injures herself? What about if the worker and the shopper knew the cart was there?

This scenario is exactly what happened to Donna Massery, a shopper when she tripped over a vegetable cart at a Rouses Market in New Orleans. She had arrived at Rouses and was searching for ginger when she approached Produce Manager, Jose Villa, to ask for directions. Villa was restocking produce that was on a cart. The cart was approximately 5 to 6 feet wide and 3 feet tall, with a long bed spanning the length. The middle section of Villa’s cart was empty, though boxes were stacked on both the left and right sides.

Ms. Massery reached for the ginger upon Mr. Villa’s direction, turned to walk away, and fell over the cart. She sustained soft tissue damage from catching herself with her hands and hitting her shin and knee on the cart. There was a factual dispute over the length and substance of Ms. Massery and Mr. Villa’s conversation. Mr. Villa contends that he alerted her to the hazard and directed her to move away. Ms. Massery claims it was a shorter conversation limited to the subject of her ginger inquiry.

Can a Louisiana Court Impose a Default Judgment for Failure to Obey Pretrial Orders?

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

stations_cross_jesus_pilate In a bizarre turn of events, an attempt to get unpaid wages from a Terrebonne Parish video store owner turned violent and led to the appeal discussed below. The appeal delved into the standards that Louisiana courts consider when it comes to repeated violations of their pretrial orders. The case below answers the question; Can a Louisiana court impose a default judgment for failure to obey pretrial orders?

Ronald Guste, the grandfather of a Tiger Audio employee, confronted Earl Lirette, the owner of Tiger Audio, about wages owed to Mr. Guste’s grandson. Mr. Lirette lept around the counter and knocked Mr. Guste to the ground, causing injuries to his back and hip that would require treatment and surgery.

Mr. and Mrs. Guste brought a lawsuit against both Tiger Audio and Mr. Lirette for damages from the injury, including loss of consortium for Mrs. Guste. At trial, the Gustes moved for penalties against the defendants, noting that neither Tiger Audio nor Mr. Lirette had complied with mandatory pretrial deadlines. The trial court denied the defendants’ counterargument of lack of notice and found in favor of penalizing the defendants. These penalties included the refusal to allow them to call any witnesses or present any defenses, thereby executing a default trial in which the defendants were to lose automatically. The court found in favor of the plaintiffs and awarded them upwards of $350,000. The defendants’ motion for a new trial was denied, and this appeal followed.

Your Short Term Wheelchair May Be Subject To a Hidden Defect Warranty

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

wheelchair_pattern_black_background_4 Recovering from an automobile collision is already a difficult journey. Sometimes physical recovery does not occur in a straight line, and intermediate accidents can complicate the process. This was especially true for Alexandria resident Mr. Maricle.

During his recovery from injuries due to a car crash, Mr. Maricle sustained further injuries due to a defective wheelchair supplied by Axis. Maricle filed a lawsuit in 2013 against Axis. In 2014, a trial court denied Axis’s motion for summary judgment; Axis appealed this denial and the Court of Appeals affirmed the trial court’s order. Significantly, the Court of Appeals held that the only issue left was determining whether Axis failed to inspect the wheelchair. Based on that holding, the trial court denied the Plaintiffs’ summary judgment motion and granted Axis’ summary judgment because there were no visible defects prior to the wheelchair’s delivery to Maricle.

Maricle presented numerous issues on appeal. The first issue was that La.Civ.Code art. 2317.1, used by the trial court to grant summary judgment, does not apply because that provision is only for owners or custodians of the defective item. Liability as an owner or custodian requires proof “that the thing was in the defendant’s custody and control.” Davis v. Am. Legion Hosp. Instead, Marcile argued that La.Civ.Code arts. 2696-97, which applies to lessors of an item and specifies a warranty that attaches to the lease, should apply because Axis was strictly liable as the lessor of the wheelchair.

The Cost of Litigation is in the Court’s Discretion in Louisiana

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

money_laundering_money_music_0-scaled The lawsuit process can be expensive between investigation, preparation for trial, and the trial itself. This is on top of the emotional rollercoaster of events that have given rise to a lawsuit in the first place. Unfortunately, sometimes a plaintiff may lose at trial and be hit with all the litigation costs for both parties. The following case shows how those costs are within the court’s discretion.

Sarah Reynolds was involved in a head-on collision with a passenger bus while driving her car in Slidell, Louisiana. Both vehicles were operating at the posted speed limit of 70 miles per hour. Reynolds was traveling the wrong way on a westbound overpass on Interstate 10. When authorities reached the scene, Reynolds was found unconscious and unrestrained. Reynolds blood tests revealed a blood alcohol content of .082gm% and a presence of Xanax and marijuana. Reynolds died a few hours after the accident due to the multiple traumatic injuries sustained.

Reynolds’ son, mother, son’s father, and estate filed a lawsuit against the Department of Transportation and Development (DOTD). They alleged Reynolds had been misdirected onto the wrong side of the roadway due to DOTD’s negligence. DOTD subsequently filed a motion for summary judgment, arguing the plaintiffs could neither establish negligence nor causation.

Louisiana Jury Awards No Damages Because of Preexisting Injuries, Can an Appeals Court Fix the Ruling?

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

courthouse_alabama_building_226689-scaled Everyone wants to emerge victorious after their day in court, but occasionally the jury will refuse to award the judgment you deserve. When a person loses their case at trial, they can appeal it to a higher court. The appeal process allows for a narrow reconsideration of a case to assure that the lower court got to the correct answer; if the appeals court finds that the lower court did not get the correct answer, they can amend the lower court’s judgment, including the calculation of damages.

Preexisting medical conditions aggravated by an accident do not preclude an injured party from recovering damages and medical expenses from the person who hit them. Ms. Kimberly Guidry has such preexisting medical conditions and was involved in an accident that aggravated those preexisting medical conditions. At trial in the 15th Juridical District, the jury found awarded no damages, no medical expenses, and no lost wages to Kimberly.

Kimberly had presented medical expert testimony that showed her injuries were aggravated by the accident, but the jury awarded her nothing. With this denial, Kimberly appealed to the Third Circuit Court of appeals. She claimed the jury committed “manifest error” in their findings and that the trial court had committed a “legal error” in failing to grant her a new trial due to this adverse ruling. Kimberly’s case helps answer the question; “If a Louisiana Jury awards no damages because of preexisting injuries, can an appeals court fix the ruling?”

Ville Platte Hospital Found Not Liable for Ant Bites on ICU Patient

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

ant_dod_pomonkey_2015-scaled Hospital admission can often be a terrifying experience, but even more so is an ICU admission. Your life is literally in the hands of hospital doctors and nurses. But what happens if you sustain injuries unrelated to your original illness or injury while in the ICU? A recent patient at Mercy Regional Medical Center in Ville Platte, Louisiana, was left with no legal recourse after sustaining multiple ant bites during her ICU stay.

Linda Searile was admitted to Mercy Regional Medical Center (Mercy Regional) in September 2011 after falling and hitting her head. After her condition deteriorated, she was moved to the ICU. Two days later, a nurse discovered ants on Ms. Searile’s arm and in her bed. The nurse removed the ants and gave Ms. Searile medication for pain and itching. Ms. Searile was discharged from Mercy Regional a few days later.

Ms. Searile filed a lawsuit against Mercy Regional, asserting the hospital knew or should have known of the ant infestation and should have taken reasonable steps to eliminate the bugs. Mercy Regional filed a motion for summary judgment stating that Ms. Searile could not show that the hospital was negligent in any manner and that the lawsuit should be dismissed entirely. The Thirteenth Judicial District Court for the Parish of Evangeline agreed with Mercy Regional and dismissed the case. Ms. Searile appealed to the Louisiana Third Circuit Court of Appeal.