Justia Injury Law Opinion Summaries

In September 2015, the Tampa Bay Buccaneers played the New Orleans Saints in the New Orleans Superdome. In preparation for the game, the Buccaneers’ Director of Football Security Operations contacted the New Orleans Police Department (“NOPD”) to request motorcycle escorts, by off-duty law enforcement for officers, for the team’s buses traveling in the New Orleans area, which were to include an escort after the game when the team buses would travel from the Superdome to the airport. NOPD agreed to provide the necessary off-duty officers, along with officers from the Jefferson Parish Sheriff’s Office (“JPSO”), for the Buccaneer team buses. At issue on the motion for summary judgment filed in this case was whether the Buccaneers football organization was vicariously liable, as an employer, for the alleged negligence of an off-duty Jefferson Parish sheriff’s deputy, who was part of the motorcycle escort for the team’s buses, when the motorcycle the deputy was riding collided with another deputy directing traffic on foot in an intersection. The Louisiana Supreme Court held that the unrebutted evidence presented by defendants moving for summary judgment showed there was no employee-employer relationship between the deputy sheriff and the Buccaneers under the facts and circumstances of this case; therefore, the Court reversed the denial of the Buccaneers’ motion for summary judgment and remanded to the district court for entry of a summary judgment in favor of defendants. View "Bolden v. Tisdale et al." on Justia Law

Plaintiff Cindy Planchard, filed suit against defendant, the New Hotel Monteleone, LLC. Plaintiff alleged that as she crossed the lobby of defendant’s hotel, she slipped on a foreign substance on the marble floor and fell, sustaining an injury. After discovery, defendant moved for summary judgment, relying on a surveillance video of the accident. The video showed a hotel employee dry mopping the lobby area at 8:36 p.m., approximately three minutes before plaintiff’s accident. Two “wet floor” signs are in place in the area. At 8:37 p.m., approximately one minute before plaintiff’s fall, two more “wet floor” signs were added to the area, and an employee continued to dry mop the area. Plaintiff was then seen to fall at 8:38 p.m. Defendant also submitted plaintiff’s deposition testimony. In her deposition, plaintiff acknowledged seeing the signs. Plaintiff also testified she “had to walk around” the signs because there “was no other path to the front door.” As a result, plaintiff stated she “walked to the side of the signs to get to the front door.” Plaintiff opposed defendant’s motion for summary judgment. Relying on her deposition testimony, plaintiff did not dispute that she saw the signs, but asserted that she thought they were “chalkboard” and did not read them. Plaintiff introduced pictures of the signs showing they did not have the traditional bright orange or yellow appearance, but were made of wood and brass. The district court denied the hotel's motion, concluding there were questions of fact concerning the “reasonableness on the part of the defendant” based on the visibility of the signs. The Louisiana Supreme Court reversed, finding that the undisputed evidence established plaintiff saw the warning signs in the area prior to her fall. "Any failure of plaintiff to read these signs was a product of her own inattentiveness and not a result of the defendant’s failure to take reasonable precautions." View "Blanchard v. New Hotel Monteleone, LLC." on Justia Law

In 2015, Dr. Robert Easton performed a left total hip arthroplasty on Mrs. Cheryl Mitchell, who had dislocated her hip. Shortly thereafter, Mrs. Mitchell re-dislocated her hip and Dr. Easton performed a revision surgery. While Mrs. Mitchell was in the recovery room, Dr. Easton observed that she had "foot drop;" Dr. Easton performed a second surgery that same day. During the surgery, he discovered that Mrs. Mitchell’s sciatic nerve had been lacerated. Dr. Easton advised Mrs. Mitchell’s family of the situation and consulted with Dr. Rasheed Ahmad, a hand surgeon who handled nerve repairs for Dr. Easton’s medical group. Dr. Easton further advised Mrs. Mitchell that “time would tell how much, if any, function and sensory perception she would get back.” Unfortunately, Mrs. Mitchell’s foot drop never improved and she was left with sciatic nerve palsy. In 2017, Mrs. Mitchell and her husband Michael, filed a medical malpractice lawsuit against Dr. Easton, his employer, the Baton Rouge Orthopaedic Clinic, L.L.C., and their insurers, Physician Assurance SPC. Defendants filed a peremptory exception of prescription, which the trial court granted, dismissing the action. The court of appeal affirmed, reasoning that, although Mrs. Mitchell continued to treat with Dr. Easton for more than a year after the alleged act of malpractice, that treatment was unrelated to the alleged act of malpractice. The Louisiana Supreme Court found no question the Mitchells, knew of the alleged act of malpractice within a day of its occurrence. "It is equally certain that suit was not filed against the treating physician, Dr. Robert Easton, within a year of the alleged malpractice. ... The sole issue, therefore, is whether prescription was suspended during this time period pursuant to the continuing treatment rule." The Court determined the record supported the lower courts' determinations that Mrs. Mitchell did not receive any specific care from Dr. Easton designed to correct or otherwise treat the injury related to the alleged act of malpractice. Even had Mrs. Mitchell received continuing treatment of her injury, the Court did not find Dr. Easton’s statements regarding her questionable prognosis to fall within the scope of the continuing treatment rule. Accordingly, under the specific circumstances of this case, the Supreme Court found the continuing treatment exception of contra non valentem did not apply to suspend prescription in this case, and affirmed the judgments below. View "Mitchell v. Baton Rouge Orthopedic Clinic, LLC et al." on Justia Law

Plaintiffs Anne Marie Auricchio and Patrick Hogan, and defendant Lynleigh Harriston, owned neighboring properties. Harriston’s brother lived in a rental apartment on her property. Plaintiffs sued Harriston, contending she refused to stop her brother’s drug use on the property, which interfered with the peaceable use of Plaintiffs’ property. Ultimately, Plaintiffs claimed they moved due to the drug activities. Plaintiffs then moved for summary judgment, asserting no genuine issues of material fact existed with regard to the following: Harriston invited her brother to live in the apartment despite having full knowledge he was a drug addict who had been repeatedly incarcerated for heroin use, that the brother’s occupancy and drug activity was causing harm to Plaintiffs, and that Harriston did nothing to prevent or eliminate the harm. Harriston moved for a continuance and, alternatively, a motion to file opposition evidence after the Article 966(B)(2) fifteen-day deadline. Harriston’s motion explained her counsel had “some difficulties with COVID-19.” Ten days before the hearing, Harriston filed an opposition to the summary judgment motion. Plaintiffs opposed both the motion for continuance and the motion for leave to file the late opposition. The trial court denied the motion to continue, but allowed the late opposition. The motion for summary judgment was denied, with the trial court finding the late-filed opposition raised genuine issues of material fact. The Louisiana Supreme Court granted certiorari review to resolve a split between the courts of appeal relative to the interpretation of Louisiana Code of Civil Procedure article 966(B)(2). The Court held that, in the absence of consent by the parties, a trial court has no discretion to extend that article’s fifteen-day deadline for filing an opposition. This case was remanded for the trial court to rule on the motion for summary judgment without the late-filed opposition. View "Auricchio v. Harriston" on Justia Law

In late 2018, plaintiff Teresa Kelleher began to experience pain in her thoracic spine. Plaintiff was ultimately found to have an abscess in her thoracic spine with positive marrow infiltration around the T2 and T3 vertebrae. A 2019 bone biopsy confirmed acute and chronic osteomyelitis (bone infection). Plaintiff alleged she was neurologically intact and ambulatory at that time. Plaintiff’s treating orthopedic surgeon, Dr. Felipe Ramirez, referred her to an infectious disease specialist, Dr. Julio Figueroa, who was affiliated with the LSU-Health Sciences Center-New Orleans, who recommended "prompt" treatment with antibiotics. Plaintiff alleged, however, she was told that defendant University Medical Center Management Corporation d/b/a University Medical Center New Orleans (“UMC”) would contact her to schedule an appointment for treatment at its Infectious Disease (“ID”) Clinic. Having not heard from anyone for several days, she called UMC to inquire about her appointment status and was told to “be patient” because “it was Christmastime.” In January 2019, plaintiff was taken to Touro Infirmary with lower extremity paralysis. Her osteomyelitis had progressed to the point that she lost neurological function of her lower extremity. Despite treatment at Touro, plaintiff was rendered paraplegic due to the progressed osteomyelitis. In August 2019, plaintiff filed a medical malpractice complaint against UMC, Dr. Figueroa, and the State of Louisiana through the Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College and LSU Health Sciences Center-New Orleans (“LSU”). Two months later, plaintiff filed suit in district court against Dr. Figueroa and UMC for, inter alia, “failing to properly train administrative personnel to schedule appointments [and] failing to arrange for the promised prompt appointment for [plaintiff].” Defendants responded with dilatory exceptions of prematurity asserting the claims were not solely “administrative,” and were therefore covered by the Louisiana Medical Malpractice Act and had to be submitted to a medical review panel. The trial court, without giving reasons, granted Dr. Figueroa’s and LSU’s exception, but denied UMC’s exception. The Louisiana Supreme Court found plaintiff did not qualify as a “patient” of UMC under the definitions in the Act. The Court therefore affirmed the trial court’s denial of the dilatory exception of prematurity and remanded the matter for further proceedings. View "Kelleher v. University Medical Center Management Corp." on Justia Law

The issue presented for the Louisiana Supreme Court's review in this case arose after plaintiff sued for injuries sustained when a cylinder that formed part of a fire-suppressant system discharged while the plaintiff was moving the cylinder after it had been offloaded from a jack-up boat onto an oil production platform. Specifically, the issues in this case were: (1) whether the company hired to inspect the platform’s fire suppression systems owed a duty of care and, if so, whether it breached that duty; (2) whether the inspection company’s actions were the cause-in-fact and legal cause of the plaintiff’s injuries; (3) whether the inspection company was solely at fault; and (4) whether the general damage awards and the loss of consortium award are excessive. The Supreme Court found the trial court did not err in finding that the inspection company was liable for the plaintiff’s injuries; however, because there were multiple causes of the accident, the trial court manifestly erred in allocating all of the fault to the inspection company. Furthermore, based on the evidence of plaintiff’s injuries, the Supreme Court found the trial court abused its discretion in fixing plaintiff’s general damage awards for physical and psychological injuries and the loss of consortium award of plaintiff’s son. The trial court’s judgment was amended to allocate fault to the operator of the platform and plaintiff ,and to reduce the challenged damage awards. As amended, the trial court’s judgment was affirmed, and the matter was remanded for further proceedings. View "Malta v. Herbert S. Hiller Corp. et al." on Justia Law

The Louisiana Supreme Court granted review in this case to examine the interplay between two provisions of the Louisiana Code of Civil Procedure in the context of partial summary judgment. The specific issue presented was whether a trial court, having granted defendants’ motion for partial summary judgment based on plaintiffs’ failure to timely file an opposition, could later vacate that judgment when the plaintiffs produce an expert affidavit based on evidence that was previously available in advance of the original hearing. The underlying action arose out of a motor vehicle accident in which J. Benjamin Zapata was struck from behind by a vehicle operated by Stephen Seal and owned by Diversified Well Logging, Inc. (collectively “DWL”). Mr. Zapata and his wife filed suit against DWL and its insurer alleging both new injuries and aggravation of preexisting lower back injuries sustained in a prior motor vehicle accident. Dr. Olawale Sulaiman, who performed lower back surgery on Mr. Zapata after the accident, opined in his deposition that he did not causally relate that surgery to the subject accident. DWL moved for partial summary judgment seeking to dismiss the Zapatas’ claim that the lower back surgery was necessitated by the accident. Twelve days before the hearing, the Zapatas filed an opposition, attaching a July 2018 report by Dr. Mohammad Almubaslat to support the assertion that the accident aggravated Mr. Zapata’s preexisting lower back injuries and necessitated the surgery. DWL replied, arguing that because the opposition was untimely, the attachments should be stricken and the Zapatas’ counsel precluded from presenting oral argument. At the hearing the trial court agreed with DWL and granted partial summary judgment in its favor. The Zapatas moved to vacate the partial summary judgment, attaching the affidavit by Dr. Almubaslat, but executed on May 8, 2019. DWL opposed on the grounds that it would be improper for the trial court to disregard the time limitations set forth in La. C.C.P. art. 966(B) and consider evidence that was previously available to the Zapatas in July 2018, prior to the original hearing on the motion for partial summary judgment. The trial court vacated its prior ruling, concluding the Zapatas’ motion to vacate was authorized by La. C.C.P. art. 1915(B) and found a genuine issue of material fact existed with respect to the issue of medical causation based on the “newly submitted affidavit of Dr. Mohammad Almubaslat.” The Supreme Court found the trial court was within its discretion in vacating its prior ruling. View "Zapata v. Seal" on Justia Law

The child at issue in this case, Grayson, was born on February 14, 2013 to a mother with a significant history of drug abuse; Grayson allegedly had drugs in his system at birth. Shortly thereafter, in March 2013, Grayson was adjudicated a “child in need of care,” placed in the custody of the Louisiana Department of Children and Family Services (“DCFS”), and entrusted to the physical care of foster parent Samantha Gafford. While in Gafford's, Grayson suffered severe personal injuries, which included brain damage, blindness, and seizures; it was also alleged that the child had bite marks on his thigh and abdomen. Gafford did not disclose these injuries until Grayson was taken to the hospital in May 2013. This suit was filed to recover damages for personal injuries suffered by an infant while in the custody of DCFS and in the physical care of foster parents. After all other claims were dismissed except allegations that DCFS was vicariously liable for the actions of the foster mother, based not only on an employer-employee relationship, but also based on DCFS’s non-delegable duty as the legal custodian of the child, as set forth in Miller v. Martin, 838 So.2d 761 (2003), DCFS filed a peremptory exception pleading the objection of no cause of action, claiming La. R.S. 42:1441.1 barred the application of La. C.C. art. 2320 to DCFS. The district court denied the peremptory exception, and the appellate court denied the ensuing writ application filed by DCFS. The Louisiana Supreme Court affirmed the district court and remanded for further proceedings. View "Kunath v. Gafford" on Justia Law

This dispute over uninsured motorist ("UM") coverage arose from a motor vehicle accident on Louisiana Highway 6 near Natchitoches. Martin Baack, an employee of Pilgrim’s Pride Corporation, was driving his work vehicle when he was struck by a vehicle driven by Michael McIntosh. The vehicle Baack was driving belonged to PPC Transportation Company. Both Pilgrim’s Pride and PPC Transportation were subsidiaries of JBS USA Holdings, Inc. (“JBS”). McIntosh was determined to be solely at fault for the accident and pled guilty to improper lane usage. Baack and his wife filed suit individually and on behalf of their minor daughter naming as defendants McIntosh, his insurer, and Zurich American Insurance Company (“Zurich”) in its capacity as the UM provider for PPC Transportation’s vehicle. In JBS’s policy with Zurich, PPC Transportation was listed as a Broad Named Insured. The Baacks sought damages under Zurich’s UM coverage as well as penalties and attorney fees based on Zurich’s failure to timely settle the claim. The Louisiana Supreme Court granted consolidated writs to determine whether an insured’s initial UM coverage waiver remains valid where, upon consecutive renewals, the insured submitted new signed and dated UM forms without initialing the blanks provided to reject UM coverage. Based on the Court's interpretation of the UM statute, it found such a subsequently submitted form changes the prior rejection and operated to provide UM coverage. Additionally, finding no error in the quantum of damages and denial of penalties and attorney fees by the court of appeal, the Court affirmed. View "Baack v. McIntosh et al." on Justia Law

Bryant Walker was employed as an eighteen-wheeler tractor-trailer driver for BlueLinx Corporation (“BlueLinx”). Walker was attempting to make a left turn into the driveway of BlueLinx’s facility: he activated his left turn signal, and stopped his tractor-trailer in the left lane, approximately sixty feet from a break in the median, in order to wait for another vehicle to exit the driveway. Before Walker could make his turn, his tractor-trailer was struck from behind by a vehicle driven by Kunta Hester. Hester died as a result of the accident. Hester’s survivors filed the instant suit against Walker, BlueLinx, and its insurer, alleging defendants breached their duty to Hester because Walker negligently stopped his vehicle on a public roadway in violation of La. R.S. 32:141(A). At issue in this case was whether defendants violated any duty to plaintiffs under the provisions of La. R.S. 32:141(A), which prohibited the stopping or parking of a vehicle in the travelled portion of a roadway. The Louisiana Supreme Court concluded defendants were entitled to summary judgment: plaintiffs failed to rebut the presumption that Hester was at fault for the accident. View "Hester v. Walker et al." on Justia Law