Louisiana Injury Lawyer Blog

In a case arising from a fire at an oil well site which left a worker severely burned, a deeply divided Louisiana Supreme Court held in a 4-3 decision that a timely filed lawsuit against a worker's statutory employer who is immune from tort liability and who had not paid any benefits (because benefits were paid by the direct employer) can interrupt prescription against an alleged third-party tortfeasor because of the solidary liability that exists between them for medical expenses and lost wages. Glasgow v. PAR Minerals Corporation, 2010-2011 (La. 5/10/11), rehearing denied, (La.7/14/11). The Supreme Court concluded:

The Civil Code provides a two-part formula for interrupting prescription in this situation: 1) a timely lawsuit (and service, if in an incompetent court; see LSA-C.C. art. 3462); and 2) a solidary relationship between a party sued within the prescriptive period and a party not sued within the prescriptive period (see LSA-C.C. art. 1799 or art. 3503). The procedural posture here is comparable to that in Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1183 (La. 1993), except that in Williams, the suit in district court was for workers' compensation and the suit was brought against a direct employer rather than a statutory employer. The procedural distinctions here are without a difference, because LSA-C.C. art. 1797 provides that the source of the solidary relationship is immaterial. For this reason, to the extent Keller v. McLeod, 2003-267 (La.App. 3 Cir. 2/11/04), 866 So.2d 388; Williams v. Holiday Inn Worldwide, 2002-0762 (La.App. 4 Cir. 5/15/02), 816 So.2d 998; and Layman v. City of New Orleans, 1998-0705 (La.App. 4 Cir. 12/9/98), 753 So.2d 254, are inconsistent with the conclusion that a timely lawsuit (and service, if in an incompetent court) against a principal or statutory employer interrupts prescription as to a third-party alleged tortfeasor, those cases are overruled. In the instant case, we find both parts of the formula provided by the Civil Code for interrupting prescription have been met; the lower courts erred in sustaining the alleged third party tortfeasor's exception of prescription. Accordingly, we reverse the decisions of both lower courts and remand this matter to the district court for further proceedings consistent with this opinion.

The Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews was selected for first tier (those firms that scored within a certain percentage of the highest scoring firms) inclusion in the 2010 inaugural rankings of U.S. News - Best Lawyers "Best Law Firms", in the practice areas of Personal Injury Plaintiffs and Product Liability Plaintiffs. "The selection involved surveying thousands of law firm clients; leading lawyers and law firm managers; partners and associates; and marketing officers and recruiting officers. Each were asked what factors they considered vital for clients hiring law firms, for lawyers choosing a firm to refer a legal matter to, and for lawyers seeking employment."

"Client and lawyer surveys collected mostly reputational data. Using a scale of 1 (weakest) to 5 (strongest), clients voted on expertise, responsiveness, understanding of a business and its needs, cost-effectiveness, civility, and whether they would refer another client to a firm. Lawyers voted on expertise, responsiveness, integrity, cost-effectiveness, and whether they would refer a matter to a firm and whether they consider a firm a worthy competitor."

In Batiste v. Bayou Steel Corp., 10-1561 (La.10/1/2010), the Louisiana Supreme Court revisited the standard for establishing intentional tort as an exception to Worker's Compensation exclusivity under Louisiana Revised Statute 23:1032(B). The plaintiff was tightening an electrode (in the course and scope of his employment) when his wrench slipped, causing him to lose his balance and fall 35 feet to the ground. The plaintiff filed a wrongful death suit alleging the accident was substantially certain to happen, and therefore fell outside the exclusivity of the worker's compensation scheme of recovery.

The Louisiana Supreme Court reaffirmed the test set forth in Bazley v. Tortorich, 397 So.2d 475 (La. 1981), for establishing an intentional act, which requires the actor to either 1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.

The Louisiana Supreme Court also reaffirmed the "substantial certainty" test as set forth in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So. 2d 208, 213:

Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation.

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" 'Substantially certain to follow' requires more than a reasonable probability that an injury will occur and 'certain' has been defined to mean 'inevitable' or 'incapable of failing.' " Jasmin v. HNV Cent. Riverfront Corp., at 312. "[A]n employer's mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the 'substantial certainty' requirement." Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La. App. 4 Cir. 1993), writ denied, 629 So.2d 347 (La. 1993). "Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing." Id. (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4 Cir. 1991).

Based on these tests, the Supreme Court held that the plaintiff could not establish an intentional tort as a matter of law and affirmed the lower court's granting of summary judgment against the plaintiff. The Court reasoned that the plaintiff had performed this same task thousands of times over 14 years, and held that the employer's failure to provide safe working conditions and proper safety equipment could possibly rise to the level of gross negligence, but do not rise to the level of an intentional tort.

On February 16, 2010, a Southland Steel Fabricators construction worker suffered a fatal traumatic brain injury and another worker sustained minor injuries in Baton Rouge, Louisiana, after the construction workers fell 20 feet to the ground from a lift after it was struck by a beam.

According to the National Institute for Occupational Safety and Health (NIOSH) 1,178 fatal work injuries occurred in the construction industry in 2007, the most of any industry, with laborers accounting for the largest number of fatal work injuries among construction occupations.

According to Baton Rouge, Louisiana brain injury attorney, Scott Andrews, construction workers injured or killed on the job are usually barred from filing a personal injury or wrongful death lawsuit because of Louisiana's strict worker's compensation immunity for direct and statutory employers. However, if the construction worker's accident was caused in part by the fault of the employee of a different subcontractor or independent contractor, then the injured construction worker may be able to file a third-party tort action. Injured workers or their families should always consult with an experienced industrial accident or construction accident injury attorney before accepting the employer's representation that worker's compensation is the exclusive remedy for the injury or death.

Continue reading "Construction Accident in Baton Rouge, Louisiana Results in Fatal Brain Injury" »

The 200 foot boom of a crane collapsed onto a fabrication shop at Elevated Boats, Inc. in Houma, Louisiana, killing one man and injuring another on November 17, 2009. The collapse occurred when the steel base of the crane ripped and detached while the crane operator was moving a 30 ton weight from the flat bed of an 18 wheeler. The accident remains under investigation by OSHA.

A crane collapse is usually caused by operator error, defective design of the crane or a component part, or improper maintenance. When injured or killed on-the-job by a crane collapse in Louisiana, worker's compensation is often the exclusive remedy for the injured or killed worker. However, if the crane or a component part is defective, or if the crane was improperly maintained or negligently operated by a contractor or other third-person who is not considered an employer or co-employee, a claim may be made outside of the worker's compensation scheme. And, when an on-the-job crane collapse in Louisiana is covered by the Jones Act or General Maritime Law, a claim for injury or death can sometimes even be made against an employer or co-employee.

Continue reading "Man Killed in Houma, Louisiana by Collapsed Crane" »

The Baton Rouge, Louisiana injury lawyers at Due', Price, Guidry, Piedrahita & Andrews settled an industrial accident case caused by a defective horizontal boring machine. The plaintiff, a machine operator at Cooper Cameron Valves in Ville Platte, Louisiana, sustained severe orthopaedic injuries on March 9, 2004 while operating a 6" horizontal boring machine, model G-60T, which had been retro-fitted with a Numeripath 8000 CNC control, and which was manufactured by Giddings & Lewis. Plaintiff became entangled in the rotating spindle while reaching across the spindle to check the depth of a hole he had just tapped on a large valve body.

Louisiana product liability attorneys, Donald W. Price and B. Scott Andrews, brought a product liability action under the Louisiana Products Liability Act, La. La.R.S. 9:2800.51, et seq., against the manufacturer, alleging that it failed to design, construct and retrofit the machine in accordance with accepted hazard control, design and construction safeguarding and failed to equip the machine with a fixed or interlocked movable guard or with other available safeguarding or protective devices such as pull back (pull out) and restraint devices; electro-optical, RF, and area scanning presence-sensing safeguarding devices; safety mat devices; safety edge devices; and/or probe detection devices, all of which were allegedly available options on the retail market at the time of plaintiff's accident. Giddings & Lewis argued that the plaintiff was solely at fault for reaching across the rotating spindle, that the employer was at fault for failing to properly train plaintiff and/or that the employer was responsible for the selection and implementation of optional safety devices.

The case settled with Giddings & Lewis paying $250,000 and the employer waiving its $180,000 worker's compensation reimbursement claim and remaining responsible for plaintiff's accident related future medical expenses.

Continue reading "Louisiana Product Liability Attorneys Settle Case Involving Boring Machine Accident in Ville Platte" »