Category: Appeals court

The Runaway Railroad Jury Verdict: A Cautionary Tale for Attorneys and Jury Members

10.01.2024

A jury in the 16th Judicial District Court awarded a garbage truck driver $8,307,050.00 in damages related to a September 16, 2016 accident with a train.  The Louisiana Court of Appeal for the First Circuit reversed the decision in Theopholia Thomas v. BNSF Railway Company– because the answers to the questions on the jury verdict form were inherently inconsistent.

A garbage truck driver (Thomas) sued BNSF, the company that maintained a railroad track in the Town of Baldwin.  On September 16, 2016, Thomas turned too wide while crossing railroad tracks, and his left front tire dropped off wooden planks on the crossing. This caused his left front tire to become stuck between the tracks. Thomas immediately began reversing the truck, then pulled forward and began moving across the railroad tracks. At that time, a BNSF train was bearing down on the crossing, blaring its horn.  Thomas accelerated but train struck the rear of his truck.  Thomas was injured in the incident.

Thomas filed suit the merits in May of 2022, the jury was provided a verdict form with a series of questions to 1) assign fault between the BNSF and Thomas; 2) determine the proximate cause of the accident; and 3) state the amount of damages.  The jury completed the form, and a judgment was rendered by the Court in favor of Thomas.

The jury found: 1) that Thomas was negligent; 2) but that Thomas’ negligence was not a proximate cause of the accident; 3) however, the jury then assigned Thomas 15% of the fault. BSNF challenged the judgment, claiming that the answers on the jury verdict form were inconsistent. If Thomas was at fault, but that fault was not a proximate cause of the accident, then how was he assigned a portion of the fault?  Before a party can be assigned fault, the jury must find both that the party was negligent, and that party’s negligence is a proximate cause of the accident.

The court of appeal overturned the over $8 million verdict in favor of Thomas because it agreed that the jury verdict form answers were inconsistent. La. C.C.P. art. 1813(E) provides that when the answers on a jury verdict form are inconsistent with each other, then the court shall not direct the entry of judgment but may return the form to the jury for further consideration or may order a new trial.  The appellate court found that the jury could not both: 1) find that Thomas’ negligence was not the proximate cause of the accident; and 2) assign 15% fault to Thomas.  Therefore, the verdict was vacated, and the case remanded for a new trial.

The lawsuit will be tried again – to a different jury.  Certainly a cautionary tale.

References:

Theopholia Thomas v. BNSF Railway Company, 2023 CA 1209 (La. App. 1 Cir. 8/6/24).

Louisiana Supreme Court Sets New Standard for Review of General Damage Awards 

03.25.2024

In recent years, the dollar amount of general damage awards to personal injury plaintiffs has been on the rise. However, the Louisiana Supreme Court recently issued an opinion that may signal greater scrutiny for heightened general damage awards going forward. In Pete, v. Boland Marine and Manufacturing Co., the state’s highest court changed the standard of review in quantum disputes to require courts of appeal to consider general damage awards in similar cases when determining whether a trial court has abused its discretion in awarding a specific general damage award.

In Pete, a 74-year old mesothelioma patient was awarded $9.8 million in general damages after it was found he was exposed to asbestos. The jury awarded $2 million for past and future physical pain and suffering, $2.3 million for past and future mental pain and suffering, $3 million for past and future disability, and $2.5 million for past and future loss of enjoyment of life. The appellate court held the defendant failed to demonstrate the general damage award “shocks the conscience,” and found the jury did not abuse its discretion.

The Louisiana Supreme Court reversed the decision. In so holding, it also changed the standard by which appellate courts evaluate whether a trial court abused its discretion in awarding general damages. The Louisiana Supreme Court  now instructs appellate courts to compare general damage awards to those awarded in similar cases in their review of the reasonableness of the trial court’s award. Applying the new standard, the Louisiana Supreme Court found the trial court abused its discretion and reduced the Pete plaintiff’s general damage award from $9.8 million to $5 million.

Previously, Louisiana courts employed a two-step analysis in evaluating general damage awards. First, the court of appeal determined whether the trial court’s award constituted a clear abuse of discretion. Second, and only  if the court first determined that there was an abuse of discretion, the appellate court would consider prior damage awards in similar cases to determine what an appropriate award should have been. This test had proven problematic because there were no clear objective standards for determining whether the trial court’s award was an abuse of discretion.

The appellate court’s decision in Pete v. Boland Marine serves as an excellent example of the problems this test presented. While the majority found that the $9.8 million awarded to Pete did not “shock the conscience,” a dissenting judge believed the award did shock the conscience, because it far exceeded general damage awards in similar cases. The “shocking the conscience” test has been long criticized because of its lack of objectivity, as the result ultimately depended on the thoughts and feeling of the presiding judges. Critics argued this led to unpredictability within the law.

The Louisiana Supreme Court’s decision reforms the two part test in an attempt to resolve this issue. The new test mandates that appellate courts consider damage awards in similar cases in the initial inquiry, to objectively consider whether the trial court abused its discretion under the particular facts and circumstances of the case at hand. The second step of the test remains unchanged. If the court finds that the trial court abused its discretion, then the appellate court will look to recent cases to determine what is the highest or lowest award a reasonable trier of fact could have found and then reform the damage award accordingly.

This decision is a significant change in the law. It aims to increase predictability within the law and affords defendants objective standards by which to challenge damage awards. However, it remains to be seen how courts will implement this new test in practice. 

References:

Pete v. Boland Marine & Mfg. Co., LLC, 23-170 (La. 10/20/23), reh’g denied, 23-170 (La. 12/7/23), 374 So. 3d 135.

Louisiana First Circuit Finds for State Trooper in Fatal Shooting

08.01.2023

On July 27, 2023, the Louisiana First Circuit entered judgment in favor of Louisiana State Trooper Andre Bezou in the shooting death of Coltin LeBlanc. The case was defended by Keogh Cox attorneys Drew Blanchfield, Brian Butler, and Collin LeBlanc. In support of its ruling, the First Circuit cited La. R.S. 9:2798.1 which provides qualified immunity for an officer’s actions, unless their action constituted “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” The court found Trooper Bezou was entitled to qualified immunity under the facts of this case.

After midnight in an area of Hammond, La. dotted with bars and restaurants, Trooper Bezou spotted LeBlanc driving a large Ford truck. Trooper Bezou testified that he witnessed two traffic violations and initiated a stop. “Bodycam” footage captured the interaction. LeBlanc exited the vehicle, and when the trooper asked for identification, LeBlanc indicated it was in his truck. LeBlanc moved to the cab of the truck, and Trooper Bezou followed, stopping within the open driver’s side door. Based upon his observations during this interaction, Trooper Bezou suspected LeBlanc was intoxicated. Later testing confirmed that LeBlanc had a blood alcohol level more than two times the legal limit.

But LeBlanc was not attempting to retrieve his license. Instead, he revved the engine and attempted to flee with Trooper Bezou immediately next to the vehicle. Trooper Bezou later testified he feared that LeBlanc would steer the vehicle to run him over with the back left wheel. In reaction, Trooper Bezou latched onto the truck and LeBlanc sped around a corner and down the roadway. Trooper Bezou was able to draw his weapon and gave multiple orders to stop. Trooper Bezou testified that he feared he would be thrown from the vehicle or scraped against parked cars in the area. When the trooper received no indication LeBlanc would relent, he opened fire. Thereafter, the truck came to a rest.

In the subsequent litigation, plaintiffs argued that Trooper Bezou used “excessive force” and should have attempted to move away and allow LeBlanc to flee the scene. In response, Keogh Cox cited Harmon v. City of Arlington, 16 F.4th 1159 (5th Cir. 2021), where the federal Fifth Circuit held that no “clearly established precedent” would prohibit an officer from firing while perched on the running board of a fleeing vehicle. Finding no excessive force under the facts of the case, Harmon acknowledged the simple truth that “there is an obvious threat of harm to an officer” who is “on the side of a fleeing vehicle.” The facts presented to the First Circuit showed that Trooper Bezou gave more warning to relent than was given in Harmon.

The New York Times covered this incident in an article titled, “Before the Final Frame: When Police Missteps Create Danger.” 11/17/21. In its coverage, the New York Times reported that Trooper Bezou “appeared to be in grave danger.” It then suggested that the trooper could have just backed away. However, courts are instructed not a gauge questions of immunity from an out-of-context application of “20/20 hindsight.” Because the facts in this case showed Trooper Bezou was in grave danger “at the moment” force was used and was faced with a split-second decision, he was protected from liability.

Louisiana Appeal Court Finds Nonparty “Nonresident” Industrial Site Owner Is Subject to Louisiana’s Subpoena Power

09.28.2022

Can a nonresident corporation, who is not a party to a pending action, be compelled to respond to discovery in Louisiana? The Louisiana Fifth Circuit says YES. See Molaison v Cust-O-Fab Specialty Services, LLC, a case where Keogh Cox successfully handled the appeal.

The Molaison case involved an industrial accident claim where catastrophic injuries were alleged. In this context, the appellate court found that a non-resident company has sufficient presence in Louisiana to subject it to the court’s subpoena power. However, the trial court must first assess the scope of discovery to ensure it is calculated to lead to discoverable evidence and is not too onerous.

In Molaison, the owner of an industrial plant who employed the plaintiff claimed that its nonresident status prevented the parties from requiring it to respond to discovery by deposition or otherwise. The plant owner cited a Louisiana Supreme Court case that held personal jurisdiction, without more, did not subject a nonparty, out-of-state defendant to submit to discovery in this state.

But, in this case, the nonparty maintained a facility in Louisiana and employed the plaintiff. As a consequence, the Molaison court found that the Louisiana “discovery rules control” and “the trial court did not err in finding that (the company) was subject to the subpoena power of a Louisiana court.”

The contractor established it issued the subpoena to obtain evidence from the chemical plant owner that was relevant to the allocation of fault under Louisiana’s pure comparative fault tort system. Therefore, the appeal court reasoned that the nonresident plant owner was subject to the subpoena, “even if (the company) is not obligated to pay in tort by operation of workers compensation immunity.”

Of note, the court also held that the review of a discovery order that finds a nonresident company subject to the subpoena power is a final appealable judgment, as opposed to an interlocutory order subject the discretionary review on supervisory writ.

Case Reference: Molaison v Cust-O-Fab Specialty Services, LLC, 21-585 (La. App 5 Cir. 6/1/22); 343 So. 3d 866.

Technical Difficulties: Incomplete “Fax Filed” Petition Interrupts Prescription

11.12.2021

Tim Berners-Lee, computer scientist and founder of the World Wide Web Consortium, famously stated, “We can’t blame the technology when we make mistakes.”  One Louisiana appellate court disagrees.

In Worm v. The Berry Barn, LLC, 20-1086 (La. App. 1 Cir. 10/21/21), the Louisiana First Circuit utilized a broad interpretation of Louisiana’s fax-filing statute, La. R.S. 13:850. In Worm, the plaintiff was injured in an accident on October 7, 2018.  Plaintiff’s counsel fax-filed the Petition to the Tangipahoa Parish Clerk of Court’s office on Friday, October 4, 2019.  The next Monday, the Clerk sent a “Fax Filing Confirmation” to Plaintiff’s counsel.  Plaintiff’s counsel filed the original Petition with the Clerk of Court on October 11, 2019.

Defendants filed an exception of prescription, arguing that the faxed Petition did not interrupt prescription because Plaintiff’s original Petition was not “identical” to the faxed Petition, as required by La. R.S. 13:850.  Defendants correctly pointed out that portions of the first and second pages of the fax filed Petition were “cut off … thereby eliminating some of the substance of plaintiff’s allegations.” Plaintiff opposed the exception, arguing that any error in the receipt or printing of the fax filed petition was attributable to the Clerk of Court and/or its fax machine.

The trial court recognized that the difference between the fax filed Petition and the original Petition was “ultimately the result of, we think a machine error.”  Nevertheless, the court sustained defendants’ exception and dismissed plaintiff’s claims as prescribed.  Plaintiff appealed.

The First Circuit Court of Appeals noted that Louisiana’s prescription statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished.  The court held, “There is no dispute that the physical copies contained in the record show that the fax filed petition and the original petition are different.  However, the differences are due to missing as opposed to substantively different or altered portions of the petition.  … As reasoned by the trial court, the apparent error in receipt and printing of plaintiff’s fax filed petition by the Clerk of Court was attributable to ‘machine error …’”  The First Circuit held that the fax filed Petition interrupted prescription and reversed the decision of the trial court.

While the explicit language of La. R.S. 13:850 requires that a fax filed pleading be “identical” to the original pleading, the First Circuit’s decision in Worm suggests that the statute has at least some flexibility.  Although the plaintiff in Worm was able to “blame the technology,” the impact of the decision may ultimately be limited to its specific facts where the “machine error” was caused by the Clerk’s system. 

Worker’s Comp Death Benefits Claim Survives Dismissal

04.23.2021

In Rowland v. BASF, 20- 278 (La. App. 1 Cir. 3/29/21), 2021 WL 1170326, the Louisiana First Circuit Court of Appeal ruled that a claim for death benefits filed by a widow whose husband died from an occupational disease was not prescribed, even though her deceased husband’s claim for workers’ compensation benefits would have been time-barred.

The claimant’s husband was exposed to asbestos from 1969 to 1989 while working for BASF. He was diagnosed with occupationally-related asbestos in 2001 and passed away on July 27, 2018. A claim for Workers’ compensation death benefits against BASF was filed on December 26, 2018.

BASF filed an “Exception of Prescription &/or Motion for Summary Judgment” and argued the widow’s claim was derivative of her husband’s cause of action. BASF contended that, because the employee’s claim would have been prescribed, her claim for death benefits also prescribed. In response, the claimant argued suit was timely because it was filed within one year of the employee’s death as required by La. R.S. 23:1031.1(F). The Worker’s compensation trial judge granted the exception of prescription.

The First Circuit reversed, accepting the claimant’s argument that the claim was timely because it was filed within one year of death. The court rejected BASF’s argument that the death benefit claim could be pursued only if the deceased husband had filed a Worker’s comp claim prior to his death.

In support of dismissal, BASF also cited La. R.S. 23:1231(A), which provides there is no right of action to pursue death benefits if the claim is not filed within two years of the employee’s last treatment. However, the Rowland court did not address this issue because BASF had not filed an Exception of No Right of Action and did not factually establish when the deceased employee last received treatment for asbestos. Moving forward, the viability of the claim will depend upon whether her husband died within two years of the last treatment related to the occupational disease.

Louisiana Appeal Courts Prohibit Direct Negligence Claims Against Employer; US District Court Uses Rule to Limit Discovery

09.25.2020

The 1st Circuit Court of Appeal recently ruled that a Plaintiff is prohibited from maintaining a direct negligence claim (negligent hire, negligent supervision, etc.) against an employer when the defendant/employer admits the employee was in the course and scope of the employment, stating:

“(A) plaintiff cannot maintain a direct negligence claim, such as negligent hiring, training, supervision, etc., against an employer, while simultaneously maintaining a claim against the negligent employee for which the plaintiff seeks to hold the employer vicariously liable, after the employer had admitted that the employee was in the course and scope of employment at the time of the alleged conduct.” See Elee v. White, – – So. 3d – – (La. App. 1 Cir 7/24/20) 2020 WL 4251974.

The ruling in Elee  joins the Louisiana 5th Circuit court of appeal which entered a similar ruling. See Landry v. National Union Fire Insurance Company of Pittsburg, 289 So.3d 177 (La. App. 5 Cir. 12/30/19).

Meanwhile, the federal courts in Louisiana, under the Erie doctrine, reached differing results. In Thomas v. Chambers, 2019 WL 1670745 (E.D. La. 2019)(Vance, J.) and Dennis v. Collins, 2016 WL 6637973 (W.D. La. 2016 (Hicks, J.), the District Courts acknowledged the holding outlined above. However, Judge Cain, sitting in the Lake Charles division of the Western District ruled to the contrary. See Roe v. Safety National, 18-cv-1353 (W.D. La. 2020).

But, what happens when the defendants further admit sole fault for the accident? The result was discussed in Ferguson v. Lenoir et al. Notably, Magistrate Judge Hornsby, ruling on defendants’ request for a protective order, found that defendants admission of fault eliminated the need to reconcile the different rulings when it found that “(no) evidence of (employer’s) negligent hiring, training, supervision or entrustment can raise (employer’s) percentage of fault above 100.” See Case 5:17-cv-01570-SMH-MLH Document 90 Filed 06/30/20 (p 2 of 6). As a natural consequence of this rule, the court recognized that a protective order limiting further discovery was appropriate. Plaintiff appealed the magistrate’s Order, but US District Judge Hicks denied Plaintiff’s appeal and affirmed Judge Hornsby’s ruling. Case 5:17-cv-01570-SMH-MLH Document 122 Filed 09/22/20.

John has been practicing over 30 years and is a Senior Partner with firm where he serves on the Management Committee. He has devoted attention to non-profit boards dedicated to assisting at risk children. He enjoys time with his three children and grandchildren. He also enjoys tennis and hiking.

Biomechanical Testimony: Reliability Sinks Expert Testimony

08.20.2020

Recently, the Louisiana Supreme Court rejected biomechanical testimony due to a lack of sufficient facts or data.  In Louisiana, as elsewhere, the trial court is to serve as the “gatekeeper” in deciding the admissibility of expert testimony.

In Blair v. Coney 20-00795 (La. 4/3/20),the plaintiff sought damages for injuries caused by a rear-end collision.  The defendant offered testimony from Dr. Charles E. Bain, partial owner of Biodynamics Research Corporation.  Dr. Bain testified that the plaintiff was not subjected to acceleration and forces sufficient to cause lasting injuries.  Dr. Bain’s testimony was based on previously conducted collision tests, photographs of the accident, and inspection of two vehicles of the same make and model.

The plaintiff moved to have Dr. Bain’s testimony excluded, claiming the testimony was irrelevant, unreliable, unduly prejudicial, and failed to satisfy the requirements of the “Daubert standard” as applied through Code of Evidence art. 702.  The district court granted the plaintiff’s motion and the defendant appealed.  After ordering reasons from the trial court, the appellate court reversed the trial court’s rejection of Dr. Bain. The Louisiana Supreme Court reversed. 

According to the Blair Court, Dr. Bain’s testimony was properly excluded where he did not review prior medicals, inspect the vehicles involved, and made assumptions regarding the plaintiff’s body position which contradicted sworn testimony. As such, the testimony did not satisfy the reliability required for expert testimony.

The Blair Court declined to address whether Dr. Bain’s testimony satisfied any of the other requirements of Code of Evidence art. 702. The Court expressed no opinion as to Dr. Bain’s qualifications or methodology. 

An Insurer’s Duty: To Defend or Not To Defend

01.08.2020

Primary insurance policies include the duty to defend an insured in connection with a covered loss. The insurer is sometimes presented with the question of whether a defense is owed when many of the allegations are not apparently covered by a particular policy. In this circumstance, how does an insurer determine its obligation? The law provides the answer: the “eight corners” rule—do the four corners of the policy unambiguously exclude coverage in all respects when viewed within the context of the four corners of the petition? If the answer is “no,” the duty to defend arises. Mossy Motors, Inc. v. Cameras America, 2004-0726 (La. App. 4 Cir. 3/2/05), 898 So.2d 602, 606.

Courts generally hold that the duty to defend the case extends to ALL claims, not just the covered claims. This duty can often prove quite costly, especially when non-covered claims are high-value or involve extensive factual development or testimony to defend. In some instances, the answer under the eight corners analysis is not so clear. The safe choice for the insurer is to provide a defense and hire separate counsel to handle the coverage side of the case.

In this scenario, where an insurer has serious coverage defenses, but agrees to provide the defense, when does the duty to defend terminate? The Louisiana First Circuit Court of Appeal recently ruled on this issue again in Ponchartrain Natural Gas System, K/D/S Promix, L.L.C. and Acadian Gas Pipeline System v. Texas Brine Company, L.L.C., No. 2018 CA 0254 (La. App. 12/12/19), stating:

            “Our previous decisions in the related sinkhole appeals clearly set out the well-established rule of law that an insurer’ s duty to defend terminates once the undisputed facts establish, or a judicial determination is made, that the claims asserted are not covered under the policy. See Florida Gas, 272 So. 3d at 551; Pontchartrain, 264 So.3d at 553- 54; Crosstex, 240 So.3d at 1032.”

So, the duty to defend ends when undisputed facts establish OR a judicial determination is made that the asserted claims are not covered. Of course, who is to say that the facts are “undisputed” without a judicial determination that confirms this conclusion.  An insurer could unilaterally determine that facts are undisputed and terminate the defense before a judicial determination, but if the court does not agree, the insurer may have issues. Accordingly, the safe course is to await a judicial determination before an insurer terminates the defense.

It is important to distinguish the duty of an excess carrier because such policies generally do not provide an obligation to defend. Instead, the excess carrier may exercise its “right to defend.”

Who Gives a Fuss about an Oxford Comma?

05.26.2017

Who Gives a Fuss about an Oxford Comma?

Some judges do. And a missing comma might cost $10 million.

By: C. Reynolds LeBlanc

Let’s take a trip back to middle school for a quick grammar review. Before I was a lawyer, I taught English. Diligently, I taught my students the importance of proper comma usage but never imagined that the fate of a multi-million dollar lawsuit would rest on how this simple mark on the page can change the meaning of a sentence.

As I taught my students, the Oxford comma comes into play when you have a series of words, phrases, or clauses. Take a look at the previous sentence. I used an Oxford comma. It is the one between “phrases” and “or.” People who like the Oxford comma say that it makes it easier for the reader to understand what the author is trying to say.

Not everyone thinks the comma is necessary. Every now and then, a student, whose curiosity would override their fear of appearing “too interested” in grammar, would ask, “Why do you even need a comma if you can tell what the author is trying to say without it?” It is a good question, and grammar nerds have been arguing about its answer for more than a century.

But the Oxford comma can make a dramatic difference. Consider these two sentences:

Darren is excited about his vacation with his wife, his best friend, and his cousin.

vs.

Darren is excited about his vacation with his wife, his best friend and his cousin.

Here, the Oxford comma makes all the difference. It distinguishes between (1) a nice vacation Darren will have with three other people and (2) an awkward situation where Darren should be advised that he is living a weird, taboo lifestyle and that his marriage to his best friend and cousin is absolutely null under La. C.C. art. 94.  While we can safely assume that Darren was excited about a group trip, this example makes the point.

In O’Connor v. Oakhurst Dairy, 851 F. 3d 69 (1 Cir. 3/13/17), a federal court refused to make a similar assumption, and it might cost more than $10 million, all because a statute did not use an Oxford comma. In O’Connor, dairy truck drivers filed a lawsuit to recover overtime pay. In Maine, overtime pay law does not apply to “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” food.

The defendant (the Oakhurst dairy) argued that the case should be dismissed because the drivers were involved in the “distribution of” food and were not entitled to overtime pay. The district court agreed and dismissed the case.

On appeal, the drivers countered that because there was no Oxford comma after “shipment,” the statute only applied to the act of “packing” food (for shipment or distribution), which they did not do. An Oxford comma would have made the dairy’s argument correct and the case would have been dismissed. However, no comma was used and the federal court of appeals found that the statute was ambiguous. The case was sent back to district court, where the dairy may now get squeezed for someone else’s $10 million comma omission.

Maybe the Maine legislators should have paid a little more attention in class.

Louisiana Courts Continue Re-Establishment of the Open and Obvious Defense

05.12.2017

Under traditional Louisiana law, if somebody tripped and fell, the property owner would not be liable for an injury (1) if the person reasonably should have seen the thing that caused them to fall or (2) if it was as obvious to the person as it was to the property owner. Stated another way, if the alleged condition was “open” and “obvious,” then that condition could not be “unreasonably dangerous,” and the property owner would not be liable. This thinking formed the basis of the “open and obvious defense” in Louisiana law.

A few years ago, the Louisiana Supreme Court issued a ruling in Broussard v. State, 2012-1238 (La. 2013), 113 So.3d 175 that raised doubts about the usefulness of the open and obvious defense. However, recent decisions by the Louisiana Supreme Court and various courts of appeal have clarified that the open and obvious defense is not dead.

A recent example of this trend is seen in Morel v. Cheema Properties, LLC, 16-666 (La. App. 5 Cir. 4/12/17), — So.3d —. This case involved a trip-and-fall accident at a gas station. On her way inside to pay for her gas, an elderly plaintiff saw two hoses next to a curb where she stepped up to enter the store. When she exited the store, she saw that the two hoses had separated and now blocked her path. She fell and was injured when she tried to navigate through these hoses. The property owner asserted the open and obvious defense and plaintiff’s suit was dismissed.

The court found that the plaintiff “was aware of the open and obvious risk” and that she fell while attempting to step over the hoses. The court observed that the plaintiff could have avoided the risk by asking for assistance or for the hoses to be moved. To the court, it was significant “that the plaintiff saw the hoses and was aware that the hoses could cause her to fall.” Therefore, because the alleged condition was open and obvious, it did not present an unreasonable risk.

This recent Fifth Circuit decision is consistent with recent trends in Louisiana law and shows that the open and obvious defense remains alive and well.

One Particular Mosquito: West Nile Virus Found to be a Compensable Workers’ Compensation Claim

02.27.2017

A Workers’ Compensation Judge in Monroe, Louisiana found that a claimant met his burden of proving that a specific mosquito bite at work caused him to contract the West Nile Virus, resulting in permanent total disability.

At trial, the claimant asserted that “he specifically remembers being bitten on his left leg by a mosquito” while working in the break room of his employer, Graphic Packaging. Claimant presented evidence that mosquitoes were present at the work site, although his purported eyewitness to the event (who also contracted the disease) was proven to have not been at work that day.

The director of the Ouachita Parish Mosquito Abatement District was offered by the claimant and testified that there was a prevalence of mosquitoes in Ouachita Parish during that summer which carried the West Nile Virus. Mosquitoes trapped near both the employer’s location and the claimant’s house tested positive. According to the director, the only way to determine if a mosquito is infected with West Nile is to have that particular mosquito tested. An expert epidemiologist for the employer added that the most commonly infected mosquitoes would not have been active during the middle of the day when the claimant alleges he was bitten.

Based upon the testimony of the claimant, his witness, and the experts, the Workers’ Compensation Judge ruled that the claimant had sufficiently proven that the specific mosquito infected with the West Nile Virus had bitten him at work. The court also stung the employer and its workers’ compensation insurer with penalties and attorneys’ fees, finding that they had not contested the claim on a reasonable basis.

The Court of Appeal in Allen vs. Graphic Packaging, No. 51,080 (La. App. 2d Cir. 1/11/17), – – So 3d – -, upheld the Workers’ Compensation Judge. The court noted that all proof of the “accident” rested upon circumstantial evidence and that the claimant possessed no direct evidence that the break room mosquito carried the disease. In this setting, the claimant “faced a burden of proof to show circumstantially that the break room mosquito carried the disease.” Utilizing the “manifest error or clearly wrong standard,” the appellate court held that the claimant had met his burden despite his indirect proof.

The Allen court ultimately reversed the finding of permanent total disability, because the Workers’ Compensation Judge misapplied the statutory requirements. It also reversed the award of penalties and attorneys’ fees noting that “there were numerous factors sufficient to validate Graphic’s reasonable controversion of Allen’s claim.”