Abandonment

In Louisiana Department of Transportation and Development v. Oilfield Heavy Hauler, LLC, theThird Circuit rules that (1) scheduling a discovery conference in accordance with Louisiana District Court Rule 10.1 is not a ”step” in the prosecution of an action sufficient to interrupt the abandonment period, and (2) a discovery response which is served on some but not all of the parties is not sufficient to avoid abandonment. 2011 WL 1272828 (La. App. 3 Cir.), 2010-139  (La. App. 3 Cir. 4/6/11)

Damages

Loss of consortium is a secondary layer of tort liability derived from injury to the primary victim.Loss of consortium, loss of services and society are elements of damages that occurs to the relation of a party who suffers an injury under La.C.C. art. 2315. C.C. art. 2315 states that these damages are "recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.” C.C. art. 2315.2 provides the cause of action for wrongful death to the spouse and/or children or father and/or mother or brother(s) and/or sister(s). It is due to family members of the injured party, not to the injured party, who has his/her own other elements of damages that are recoverable. Thus, the court should not award loss of consortium as a separate item of damages to the injured primary victim. Brock v. Singleton, 2011 WL 1135550 (La. App. 5 Cir.), 10-550 (La. App. 5 Cir. 3/29/11)

InCurry v. Healthsouth North Rehabilitation Hospital,  a patient brought medical malpractice action against hospital for damages sustained when she fell while being assisted by nurse, fracturing patient's right arm, and allegedly resulting in the loss of use of patient's right arm and hand. The plaintiff alleged that despite suffering from a stroke and having minimal paralysis, she was able to use her right arm on a limited basis until the accident, and that afterward she lost total use of her right arm.  The Second Circuit affirmed the trial court’s award of $30,000 in general damages to elderly stroke victim with preexisting paralysis and whose arm fractures resolved in approximately six months and did not cause any partial disability. 2011 WL 837037 (La. App. 2 Cir.), 46,015 (La. App. 2 Cir. 3/11/11)

Insurance; Proof; Default Judgments

In confirmation of default against an insurance company, plaintiff submitted only a declaration page from the policy and an attached policy coverage disclosure summary. Held, these documents were insufficient to impose liability upon the insurer, and other evidence did not support the default judgment against the insurer. Rock v. Allstate Life Ins. Co., 340 So 2d 1325 (La. 1976), distinguished. Clark v. Clark, 2011 WL 810755 (La. App. 3 Cir.), 2010-918 (La. App. 3 Cir. 3/9/11)

Comparative Fault

InMatlock v. City of Shreveport, an assistant softball coach brought action against city for injuries she sustained when she twisted her ankle in a hole or depression in the sidewalk as she was approaching gate to baseball field. The court held that the large pothole-type break in the sidewalk near gate to baseball field was a dangerous defect constituting an unreasonable risk of harm; the hole was located near the entrance via a gate to five ball fields at the park, and while it was visible to someone looking down while walking, it was foreseeable and reasonable that persons approaching the gate would be accompanied by groups of children requiring their attention and burdened with significant amounts of equipment for use in playing or practicing ballgames on the fields.  Fault was apportioned as follows:  75% (reduced from 100%) to city which had notice of the large hole for at least a year and failed to make simple and inexpensive repair, and 25% to victim, who could have seen the broken area had he been looking down at that particular time.2011 WL 837028 (La. App. 2 Cir.), 45,920 (La. App. 2 Cir. 3/11/11)  (Stewart, J, concurs)

Worker Compensation

The Second Circuit has upheld against constitutional attacks of due process and equal protection the statute (R.S. 23:1201.4) providing that benefits are forfeited during a period of incarceration if the WCJ finds that the employee has no dependents who rely on a compensation award for their support.  Blackledge v. Sol’s Pipe & Steel, Inc., 2011 WL 1005424 (La. App. 2 Cir.), 46,148 (La. App. 2 Cir. 3/23/11)