Louisiana Injury Lawyers Blog

January 20, 2015

District Attorney, Sheriff Not Entitled to Collect Payments for Ordinary Expenses from DWI Drivers

One of the particularly noteworthy decisions from last year provides clarification and sets limitations regarding how district attorneys and sheriffs can collect payments for investigation and prosecution costs from persons convicted of DUI. The Louisiana Court of Appeal resolved the appeal of one man who had challenged the assessment of these costs, sending the man’s case back to the trial court and limiting valid fees to those expended on the man’s individual case.

The challenge was launched by Jesse Griffin II, who was stopped and arrested for first-offense DWI. In September 2012, the driver pled guilty, and the trial court sentenced him to a suspended sentence of 150 days, one year of probation, and a fine of $600 plus “all costs of these proceedings.” The costs assessed to Griffin included a $100 cost-of-prosecution amount payable to the District Attorney’s office and another $100 for cost of investigation, payable to the sheriff’s office.

January 9, 2015

The Theory of Respondeat Superior

by Cardone Law Firm

Louisiana Civil Code article 2320 is the foundation for the theory of respondeat superior, which in Latin means ‘Let the Master Answer.’ It states, “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Therefore, employers are only responsible for their employees’ actions if it occurs in the course and scope of their employment. Louisiana case law has created different factors and tests to apply this theory; however, there is no bright line rule in use.

Generally, an employee’s conduct is within the course and scope of his employment if the conduct is the kind that he is employed to perform (Orgeron v. McDonald). An employer will be responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest. In determining whether the employee’s conduct is employment related, the court assesses several factors, including the payment of wages by the employer; the employer’s power of control; the employee’s duty to perform the act in question; the time, place, and purpose of the act in relation to the employer’s service; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; the employer’s motivation for performing the act; and the employer’s reasonable expectation that the employee would perform the act (Woolard v. Atkinson).

January 5, 2015

Lack of Information in Jury Verdict Form’s Dooms Award of Court Costs and Attorneys’ Fees

by Cardone Law Firm

A nursing home’s negligent handling of a patient’s feeding needs contributed to the man’s death and also led a jury to issue a monetary award to the family of the deceased patient. The family’s recovery was not as large as it might have been, however. The Louisiana Court of Appeals determined that the jury in the case never made an express finding that the facility violated the Nursing Home Residents’ Bill of Rights, so the family was not entitled to recover their court costs and attorneys’ fees.

The appeal arose from a jury trial and verdict in the nursing home negligence death of Jesse Harvey, Sr. Harvey was a long-term resident at Acadian Rehabilitation and Nursing Center. During a brief hospital stay, doctors performed a test called a pharynogram, which showed the man had an inability to swallow. The doctors ordered that the man receive nutrition through a feeding tube and nothing by mouth.

January 5, 2015

Trial Court Shouldn’t Have Punished Medical Patient for Expert Witness’ Disappearance

by Cardone Law Firm

Personal injury cases involve lots of evidence and lots of witnesses. Managing all of this can be very challenging, but an injury victim is still responsible for meeting his or her deadlines. However, as a recent Louisiana Court of Appeal ruling highlights, the victim is not responsible for forces outside his or her control and, in a case where a medical patient’s expert witness suddenly disappeared, she should have received extra time to submit her evidence to the trial court.

The problems for Patricia Andre, a patient with cystic fibrosis, began when she was placed on the antibiotic drug Tobramycin in the hospital. After discharge, Andre continued receiving Tobramycin on an outpatient basis, administered by staff from HCS Infusion Network.

December 23, 2014

Emergency Vehicle Crashes

by Cardone Law Firm

Normally when a person thinks of an emergency vehicle, such as a fire truck, ambulance, or police car, he or she thinks of the different ways in which these emergency personal can help people in the time of a crises. However, these emergency vehicles do cause crashes and at a rate higher than a person would expect. These emergency vehicles are usually in a rush to another car crash, injury, or crime and forget that they have certain duties to other drivers on the road as well. From 1991 to 2000, the most recent years for which data is available, 300 fatal crashes occurred involving ambulances, resulting in the deaths of 82 ambulance occupants and 275 occupants of other vehicles and pedestrians. The 300 crashes involved a total of 816 ambulance occupants. Statistics also show that motor vehicle crashes are the second leading cause of death for on-duty firefighters. Fire truck crashes, occurring at a rate of approximately 30,000 per year, have potentially dire consequences for the vehicle occupants and for the community if the fire truck was traveling to provide emergency services. Due to the sheer size of the ambulance, fire truck, or other emergency vehicles, the injuries sustained from such a collision can be catastrophic. Louisiana law provides different duties for emergency vehicles if certain criteria have been met. Because of the complicated legal issues that arise when dealing with these types of crashes, it is important to have an experienced Louisiana personal injury lawyer on your side to know how to handle such a crash.

Louisiana Revised Statute 32:24 holds the key to what duties emergency vehicles have and when they apply. It provides:

December 1, 2014

State Allowed to Suspend Driver’s CDL Despite Dropped DUI Charge

by Cardone Law Firm

DWI/DUI arrests can be damaging for anyone, but especially so for a commercial driver. One man, who was arrested on suspicion of DUI but was never convicted of any crime, nevertheless lost his commercial driving privileges for a year. The Louisiana Court of Appeal ruled that the statute that pertains to CDL suspensions allows the state to suspend a driver’s commercial privileges for a year based solely on that driver’s refusal to submit to a blood-alcohol test.

Robert Navarre was pulled over in April 2011 near Lake Charles and arrested for driving drunk. The officer asked the driver to submit to a blood test, but he declined. Based upon the driver’s refusal to complete the blood test, the state’s Office of Motor Vehicles suspended his personal driver’s license for one year, as permitted by statute. The state also barred the driver from driving a commercial vehicle for one year.

November 27, 2014

How to Proceed with Your Medical Device Injury Case

by Cardone Law Firm

Patsy Grabowski’s personal injury action is a clear illustration that, even when misconduct and injury clearly occur, proceeding through the legal process can be filled with complications, often related to selecting the proper person or entity to sue. The woman and her attorneys had to go all the way to the Louisiana Court of Appeal to revive her case relating to harm she suffered from a knee replacement gone wrong.

In 2007, Grabowski went to West Calcasieu Hospital outside Lake Charles for a total knee replacement. After later developing problems, Grabowski returned to the hospital. She underwent a second surgery, after which her surgeon informed her that the artificial knee had malfunctioned because the manufacturer’s sales representative, who was present in the operating room during the first surgery, had given him the wrong-sized part. As a result, Grabowski had suffered damage to a tendon in her knee.

November 20, 2014

Nursing Home Patient’s Choking Death Case Must Go to Medical Malpractice Panel Before Going to Trial

by Cardone Law Firm

In Louisiana, all medical malpractice cases must first go before a medical review panel before proceeding to court. Despite arguments to the contrary by a nursing home patient’s family, a case involving the choking death of a patient was one of medical malpractice and not just simple negligence. The Louisiana Court of Appeal ruled that the case would require medical expert evidence in order to resolve it, so the matter was not one of simple negligence and would need to go before the panel before proceeding to trial.

The case pertained to the choking death of Jerry Don Campbell, who was a patient at Claiborne Healthcare Center after having suffered a stroke. In addition to the stroke, the patient had dementia and difficulty swallowing. On one day in June last year, Campbell retrieved a peanut butter sandwich from a sandwich cart and sat down to eat it. Some time later, nurses found him unresponsive. The staff transferred him to a local hospital, but he did not survive.

November 17, 2014

Supreme Court Says that Breathalyzer Technician Not Required to Testify in DUI Case

by Cardone Law Firm

A recent Louisiana Supreme Court ruling dispelled the notion that, in order to offer into evidence documents certifying the accuracy of a breathalyzer machine, the state was required to make the certifying technician available to testify. The ruling explained that, since the documents were “not testimonial” in nature, their admission without the technician’s testimony did not violate the Constitution’s Confrontation Clause.

The case stems back to the 2012 traffic stop of Maurice Hawley. After a state trooper stopped the man’s vehicle for speeding and an improper lane change, he suspected the driver of being intoxicated. Hawley blew a .144 using an Intoxilyzer 5000 device, prompting the state to charge him with driving while under the influence.

October 15, 2014

What You Post Can Be Used Against You

by Cardone Law Firm

In this new age of technology the use of social media has taken over the daily lives of people. As a society, people crave for attention and are constantly posting pictures of their daily activities including where they are, who they are with, and what they are eating each and every day. This constant posting on social media websites has become another arrow in the quiver of legal defense firms. As Judge Richard Walsh stated, “Only the foolish or uninitiated could believe that Facebook is an online lockbox for your secrets.” These social media websites have become very important impeachment tools for the opposing party. The credibility of the plaintiff will be shattered if he or she is caught on the internet running, jogging, or any other physical activities if in the lawsuit they are claiming injuries that will affect this aspect of life.

A recent case shows the ability of the defense to use these websites as evidence to impeach the credibility of the plaintiff(s). In McMiller v. HummingBird Speedway, Inc. the victim filed suit against the defendant for rear ending him during a cool down lap following a July 7, 2007 stock car race. The plaintiff alleged substantial injuries including possible permanent impairment, loss and impairment of general health, strength, and inability to enjoy certain pleasures of life. As the discovery process progressed, the defendants of the law suit discovered pictures and comments from a fishing trip and attendance to the Daytona 500 race in Florida. The Court in the case held that this information was public information and could be used in trial against the victim. The Court also allowed the defendants to receive the login information for the plaintiff to search for any other post or tweets concerning the fishing trip and racing adventure in Florida. Smoking guns such as these pictures or comments will severely affect your case. This is why it is necessary to have an experienced New Orleans attorney on your side to navigate you through these issues that can affect your case.