Personal Injury: Representative Works
Personal Injury - Dog Bite - Summary Judgment Granted
In 2013, Mr. Keller defended an individual in a dog bite lawsuit filed in St. Landry Parish. Plaintiffs alleged that Mr. Keller’s client was responsible for the dog attack because he allowed a dog to cross his property before the attack occurred. After some brief discovery, Mr. Keller filed a Motion for Summary Judgment arguing that Louisiana Law does not impose a duty on a non-owner to prevent a dog attack or warn a third party about a dog attack regardless of whether the dog crossed the non-owner’s land or not. The trial court granted the motion and dismissed all claims with prejudice.
Stanford v. Bourque, 27th JDC Suit No. 12-C-0902-D. Honorable Judge Donald Hebert
Personal Injury - Cervical Disc - Judge Trial
In 2012, Mr. Keller represented an individual and her auto insurance carrier in a personal injury lawsuit involving an auto accident in Lafayette, Louisiana. Plaintiff steadfastly refused to take any responsibility for the car accident, and originally sought more than $400,000 for his general damages, medical expenses, and lost earnings (claiming it forced him into early retirement as a college professor). After two years of discovery, plaintiff stipulated to $50,000 in total damages just to avoid a jury trial. Then, on the eve of the judge trial, plaintiff retained a local plaintiff attorney to try the case. Based solely on Mr. Keller's presentation of the evidence, Judge Broussard flatly rejected plaintiff's claims for lost earnings, rejected plaintiff's claims for loss of consortium, and allocated 50% of the fault to plaintiff. The final award was $25,000.
Fred Farshad v. Commerce and Industry, Suit No. 2010-1737, The Honorable Ed Broussard, 15th JDC.
Slip and Fall
Mr. Courtenay successfully defended a well-known wing and sports restaurant in a slip & fall case, resulting in dismissal by summary judgment. The plaintiff fell while exiting the premises on the "slippery floor." The fall was caught on film in an area highly traversed by patrons and employees alike. For the purposes of the summary judgment hearing, the defendant admitted that the plaintiff fell on an "invisible substance," then successfully argued that the plaintiff could not meet the "notice" requirement of Louisiana's merchant liability statute. Although the plaintiff argued that she was telling the employees about the slippery floor moments before she fell, Judge Janice Clark agreed with the defendant and granted summary judgment.
Laura Davis v. JK&T Wings, Inc., No. 602-581, Div. D, 19th JDC, East Baton Rouge Parish, Louisiana.
Transportation/Personal Injury Defense
Mr. Kerrigan and Mr. Walsh successfully defended and resolved a five-person burn/fatality case on behalf of an environmental services company. The driver of the environmental services vehicle was allegedly intoxicated at the time of the subject accident. Five individuals ages 2-65 died either shortly after the explosive impact or within a few days.
Personal Injury Defense
In less than three months of being served with a personal injury lawsuit, Ms. Theard was able to successfully file and have granted a Peremptory Exception of No Cause of Action, and Alternatively Motion for Summary Judgment on behalf of a contractor client based on peremption under La. R.S. 9:2772 in Orleans Parish Civil District Court. The Plaintiff claimed that she slipped and fell in 2007. She filed suit against the owner of the building timely in 2008 for her injuries and damages, which included pain and suffering, permanent disability, loss wages and loss earning capacity claim. During the course of discovery, it became known that there were repairs performed by our contractor client prior to the plaintiff's fall. The repairs were completed in September of 2006, and a certificate of substantial completion was filed in November of 2006. In March of 2012, the plaintiff filed an amended lawsuit naming the contractor client to the lawsuit. In April of 2012, Ms. Theard filed an Exception of No Cause of Action, and Alternatively Motion for Summary Judgment arguing that the claims against the contractor were perempted under La. R.S. 9:2772 because the lawsuit against the contractor was filed more than five years after the substantial completion of the project. The Court granted the exception dismissing all claims against the contractor with prejudice.
Personal Injury Defense
Mr. Kerrigan and Mr. Glas obtained precedent-setting summary judgments on behalf of U.S. Gypsum Corporation and its subsidiary, L&W Supply Corporation, in a multi-million dollar untarping case. The plaintiff was a Western Express truck driver who was paralyzed after falling from atop his load of stacked sheetrock while on L&W Supply property. The plaintiff claimed that the defendants knew that truck drivers were sometimes forced to climb their load during untarping, and did nothing to prevent the practice or protect the drivers. The plaintiff argued that the defendants owed a duty under OSHA's Multi-Employer Worksite Doctrine and Louisiana state law, and breached that duty by failing to provide fall protection, warnings, and assistance. The defendants argued that they owed no duty to tell a non-employee, professional truck driver how to do his job while on L&W Supply property. Judge Engelhardt of the United States District Court for the Eastern District of Louisiana wrote an eleven-page judgment agreeing that the defendants neither owed nor assumed a duty to the plaintiff; he further concluded that the plaintiff's "failure to take precautions when faced with obvious risk, combined with [Western Express’] seemingly lax driver/untarping policies and procedures, resulted in an unfortunate accident. [The plaintiff’s] remedy, albeit limited, is found in workers’ compensations benefits provided by his employer.” The ruling was issued one week before trial, and only days after opposing counsel demanded $8 million to settle the case.
James Offord and Patricia Offord v. United States Gypsum Corporation, Seacoast Supply, and L&W Supply Corporation, USDC EDLA, No. 07-8704, Section “N.”
Personal Injury Defense
Mr. Le Clercq and Mr. Hailey obtained a personal injury defense win in a lawsuit brought by a plaintiff who slipped and fell during the course of her job. The plaintiff, Amanda Sharpe, alleged she sustained several herniated discs and $35,000 in medical expenses when she slipped down the stairs of a house she was cleaning. The plaintiff alleged the homeowner told her to use Pledge on the stairs despite the plaintiff advising the homeowner it was unsafe, and that the plaintiff did as she was told for fear of the homeowner discontinuing her services. After several months of applying Pledge, the plaintiff slipped on the wooden stairs. DK&S argued that the hazard, if any, was caused by the plaintiff and created an open and obvious condition which the plaintiff knew about. The Court agreed and granted a summary judgment in favor of the defense.
Amanda Sharpe v. Occidental Fire & Casualty Company of North Carolina.
Personal Injury Defense
Mr. Hailey and Mr. Geerken defended American Family Mutual Insurance Company and its insured driver, Regina Vargas, at trial. As a result of the subject automobile accident, the plaintiff, Daniel Walley, required surgical insertion of plates, rods and screws in his right ankle. The plaintiffs argued that defendant Regina Vargas was liable for the accident in turning left while exiting a private drive when she struck the plaintiffs' motorcycle. After the plaintiffs rested their case in chief, the court granted the defendants’ Motion for Directed Verdict because the plaintiffs did not prove they possessed the requisite liability insurance pursuant to La. R.S. 32:866 (Louisiana's "No Pay, No Play" Statute). Following the close of the defendants' case, the Court reserved judgment pending submission of post-trial memorandums of fact and conclusions of law by the parties. The Court found Regina Vargas acted reasonably and found plaintiff Daniel Walley 100% at fault for the accident. The court adopted the defendants' Post-Trial Memorandum of Fact and Conclusions of Law as its Reasons for Judgment.
Daniel and Alisha Walley v. Regina Vargas and American Family Mutual Insurance Company, 21st Judicial District Court for the Parish of Livingston, No. 109-556 Division E.
Transportation/Personal Injury Defense
Mr. Kerrigan and Mr. Walsh successfully argued motions for summary judgment to eliminate the plaintiffs' claims for exemplary damages under Civil Code Article 2315.4 and their claims for impairment of a civil action in a personal injury case pending in the 40th Judicial District Court, Parish of St. John the Baptist. The plaintiffs based their argument for exemplary damages on a theory that the insured driver's history of alcoholism made it more likely than not that he was intoxicated at the time of the accident. They based their claims for impairment of a civil action on the unexplained loss of the driver's pre-employment physical and drug-screen. In briefs and at oral argument, Mr. Kerrigan and Mr. Walsh argued that the plaintiffs would not be able to meet their burden of proof on the exemplary damages claim because there was no evidence that the driver was intoxicated at the time of the subject accident and there was no showing that he acted recklessly or in wanton disregard for public safety. The court granted summary judgment on the impairment of a civil action claims because there was no showing that the employer or the driver deprived the plaintiffs of any evidence intentionally. Furthermore, the court noted that the evidence plaintiffs were seeking could not be used at trial to prove conduct in conformity therewith under the Code of Evidence.
Candace Dauphin, et al. v. Larry Bickford, et al., No. 55852, Division A, 14th JDC, Parish of St. John the Baptist.
Slip and Fall
Ms. Theard and Mr. Glas successfully defended a well-known restaurant in a slip & fall case which resulted in a defense verdict. The 80-year-old plaintiff fell while walking down a step from the gazebo area of the restaurant in Shreveport, Louisiana. The plaintiff claimed that as a result of the fall, she broke her nose, bruised her knees and aggravated a prior back problem. It was further alleged that the plaintiff’s “overall health and well-being deteriorated significantly in great part as a result of her injuries.” In a judge trial held on May 17, 2011, Ms. Theard and Mr. Glas were able to successfully argue that the one step down was not an unreasonably dangerous condition due to the fact that (1) the construction of the step satisfied the code requirements in effect at the time of construction, and (2) the step was sufficiently noticeable due to a handrail on the right side of the step, a contrasting floor pattern between the two levels, and adequate lighting augmented by natural light. Despite the sympathetic nature of the plaintiff, a turning point of the trial was during cross-examination of the plaintiff, when she finally admitted on the stand that she did not know what caused her to fall. The Court ultimately decided that the plaintiff failed to satisfy their burden to show that the restaurant was liable for the plaintiff’s fall, and as a result the Court dismissed the case at the plaintiff’s cost with prejudice.
Martha Ross and Andy Ross v. Copeland’s of New Orleans, Inc., et al., No. 526,060, Section C, 1st JDC, Caddo Parish, Louisiana.
Transportation/Personal Injury Defense
Mr. Kerrigan and Mr. Walsh obtained a dismissal on summary judgment for a destination services company in a case where damages of $600,000 were being sought. The plaintiff in the case alleged that she fractured both her shoulder and left foot descending a shuttle bus owned by the client and operated in a reckless manner by an employee of the client. Mr. Kerrigan and Mr. Walsh filed and argued a motion for summary judgment proving that the bus was in fact not owned by the client, nor was the driver an employee of the client. The Honorable Mary Ann Vial Lemmon granted the motion.
The plaintiff appealed to the United States Fifth Circuit and argued a number of bases for reversal, including that removal to federal court had been improper and that she was the beneficiary of a stipulation pour autrui in our client's contract. She argued that USA Hosts breached its duty to provide her with "curbside" service. In addition to his appellee brief, Mr. Walsh filed a separate motion under FRAP 38 to recover attorney’s fees and double costs on the basis that the plaintiff’s appeal was frivolous. The Fifth Circuit agreed that Ms. Hernandez's appeal was frivolous, affirmed the district court's ruling and assessed double costs against Ms. Hernandez for her frivolous appeal.
Letty Hernandez v. Creative Group Inc., USA Hosts Inc., et al.
Personal Injury Defense
Mr. Groome represented a co-defendant roofing company alleged to have negligently repaired a roof, allowing water intrusion which in turn caused a nurse to fall and injure herself. Her injuries resulted in two shoulder surgeries for torn rotator cuffs and a neck surgery on a disc. The nurse plaintiff had a significant loss of wage claim as she now cannot extend her arms or carry any weight. Her settlement demand was $1.5 million. After two years of discovery, a roofing co-defendant filed a motion for summary judgment which was denied. Subsequently, Deutsch, Kerrigan & Stiles filed a motion for summary judgment, which was granted after oral argument in early December 2010.
Edward Cook and Karen Cook, et al. v. Wal-Mart Stores, Inc., USDC MDLA, No. 08-722.
Personal Injury
Mr. Murphy defended Stewart Development, L.L.C. and Stirling Properties, L.L.C., the owner and manager respectively of a high rise office building located in Metairie, Louisiana, against claims brought by the worker of a tenant, who fell and sustained a severe fracture of the left hip and other injuries when traversing an entranceway that connected a multi-level parking garage to the building's lobby. Plaintiff claimed the entranceway was defectively designed, constructed and maintained. The jury returned a verdict in favor of defendants that found the entranceway posed no risk of harm.
Fredrick Rohrbacker v. Stewart Development, L.L.C., No. 659-219, 24th Judicial District Court for the Parish of Jefferson, State of Louisiana
Personal Injury
Ms. Gilbert defended Stewart Development, L.L.C. and Stirling Properties, L.L.C., the owner and manager respectively of a high rise office building located in Metairie, Louisiana, against claims brought by the worker of a tenant, who fell and sustained a severe fracture of the left hip and other injuries when traversing an entrance way that connected a multi-level parking garage to the building's lobby. The plaintiff claimed the entrance way was defectively designed, constructed and maintained. The jury returned a verdict in favor of defendants that found the entrance way posed no risk of harm.
Fredrick Rohrbacker v. Stewart Development, L.L.C., No. 659-219, 24th Judicial District Court for the Parish of Jefferson, State of Louisiana.
Personal Injury
Mr. Murphy secured the dismissal of a multi-million dollar suit brought against a sugar mill and its insurers by several plaintiffs, including one plaintiff who was rendered a quadriplegic as a result of a vehicular collision that occurred in Baton Rouge, Louisiana in March 2008. The sugar mill had arranged for the driver of a tractor-trailer operated by another company to load raw sugar at the sugar mill, using equipment belonging to the sugar mill, and to transport the raw sugar to a refinery located approximately 60 miles away. The driver loaded more raw sugar on the trailer than the statute governing weight limits on roadways allowed. While in transit, the tractor-trailer rear-ended several vehicles. The sugar mill moved for summary judgment in the trial court, contending the tractor-trailer company was an independent contractor and therefore the sugar mill should have no liability for the actions of the tractor-trailer company or its driver. After the motion was filed, the trial court authorized plaintiffs to take the depositions of representatives of both the sugar mill and the tractor-trailer company. At the hearing on the motion, the trial court denied the motion. Following the denial, the sugar mill and its insurers applied for a supervisory writ of certiorari to the Louisiana First Circuit Court of Appeal. The First Circuit granted the writ, reversed the trial court and entered summary judgment in favor of the sugar mill and its insurers. The First Circuit held that plaintiffs had failed to establish that they will be able to carry their evidentiary burden to demonstrate the sugar mill's vicarious liability or that the sugar mill had a duty to prevent the overloading of the tractor-trailer. Plaintiffs thereafter applied for a supervisory writ of certiorari to the Louisiana Supreme Court, which the Supreme Court denied.
Manchester v. Conrad, No. 2009-CW-1074 (La. App. 1st Cir.)
