HOW LONG DOES A PERSON HAVE TO BRING A PERSONAL INJURY LAWSUIT IN LOUISIANA?

HOW LONG DOES A PERIOD HAVE TO FILE A PERSONAL INJURY LAWSUIT IN LOUISIANA?

When a person is injured in an accident due to the fault of another, whether it be negligence, intentional or reckless conduct, that person is entitled to recover damages. Personal injury accidents arise from auto accidents, motorcycle accidents, truck accidents, slip & falls, construction site accidents, drownings, boat accidents, dog bites, head injuries, brain injuries, neck injuries, spine injuries, and loss of a limb.

There are two types of damages, general damages and special damages, that an injured person can recover. General damages are those damages like pain and suffering that you cannot calculate, the damages that have no specific dollar value. These damages are determined by the jury based on how seriously the jury thinks that the person is injured. General damages also include emotional distress, lessened quality of life, loss of consortium, and psychological damages.

Then there are special damages. These are the economic or “out-of-pocket” damages that the injured person sustained as a result of the accident. These damages include property damages, lost wages, loss of earning capacity, medical bills and prescription bills. Special damages can be assigned a specific dollar value. For example, if the damage to the injured person’s car is $10,000, that is one aspect of special damages. Furthermore, if the doctor’s bill for a back surgery or a knee surgery is $25,000, then these are special damages. Special damages or economic or out-of-pocket may also be recovered by the injured person (or plaintiff) in a personal injury action.

Lawsuits for personal injury must be brought within a specific time after the injury. If the plaintiff fails to bring the lawsuit within this specific time, he may be prevented from receiving any money damages for his injuries. In Louisiana, this period of time is called the prescriptive period. In other states, this period of time is called the “statute of limitations.” Although the terms are different, they both mean the specific time that an injured person has to bring a lawsuit against another person or company.
Louisiana is different from other states in the United States because it is the only civil law jurisdiction in the United States. Louisiana’s civil law legal system is based on two civil law countries, Spain and France.

Statute of Limitations for Louisiana Personal Injury Claims

Medical Malpractice Claims

Medical malpractice claims in Louisiana must be brought within one year of the injury. The rules governing the time within which a medical malpractice action can be brought are set forth in La. R.S. 9:5628(A), which provides in pertinent part:
No action for damages for injury or death against any physician …. whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect or within one year from the date of discovery of the alleged act, omission or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect. (Emphasis added)
La. R.S. 9:5628(A) means that in an action against a physician under the medical malpractice act, the plaintiff has one year from the alleged act, omission or neglect or one year from discovery of the alleged act, omission or neglect within which to bring an action.
But the second period of time that must be applied to all actions under the medical malpractice act is “peremptive” in nature and may not be interrupted or suspended. No action may be brought once three years have passed after the alleged act of malpractice under any circumstances…

Personal Injury Lawsuits

The prescriptive period applicable for personal injury lawsuits is one year. That means that a person has one year after an injury to bring a lawsuit. In other words, a party who has received a personal injury because of the fault of another can sue that person or company for up to one year later, or until the first anniversary of the date of the incident. If the lawsuit is not filed by that time, the plaintiff is forever barred from suing the part at fault. So it is important to consult a lawyer so that your rights are protected.

The time to bring a lawsuit in Louisiana is much shorter than some other states. For example, in the state of Mississippi, an injured party usually has three years to bring a personal injury lawsuit.

When you or a loved one have been injured in an accident, you may be wondering who you can turn to in your time of need. At the Law Office of Gaynell Williams, L.L.C., we have the experience you need to fight for the compensation you deserve for not only the costs you’ve incurred, but for the pain and suffering you and your family have been made to endure. We will search for every possible source of financial restitution, be it through insurance settlements, personal injury claims, arbitration, mediation or litigation. Our goal is to see to it that the financial costs you have been burdened with after a serious accident are covered completely, so you can focus on what is most important – healing. Call (504) 302-2462.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2019 Gaynell Williams LLC Attorney at Law.

By |2019-10-04T21:44:54-05:00October 4th, 2019|Uncategorized|Comments Off on HOW LONG DOES A PERSON HAVE TO BRING A PERSONAL INJURY LAWSUIT IN LOUISIANA?

The Differences between Theft and Robbery

The Differences Between Theft and Robbery

Both theft and robbery are crimes in Louisiana that deal with the taking of something that belongs to someone else. Robbery is a crime against the person. A robbery occurs when a person takes something of value belonging to another from the person herself or that is in the immediate control of the person, by use of force or intimidation. In other words, for a person to commit a robbery against another, he must take something that the person is holding, has on her body, or that is in the immediate control of the person. For example, if a person takes a purse that is on the victim’s shoulder by threatening to shoot her if she does not give him the purse, he has committed a robbery.

On the other hand, a theft is the taking of something of value that simply belongs to another with the intention of not giving it back. For a theft to occur, the victim need not be present at the scene or in control of the item. Theft is also called larceny in some states. A theft can also occur by fraud such as by stealing services such as cable, telephone, or electricity, or by stealing things electronically on the Internet.

All Louisiana robberies and thefts are found in the Louisiana Criminal Code which begins in Section 14:01 of the Louisiana Revised Statues. The first section of the Louisiana Criminal Code is cited as La. R.S. 14:01 or La. Rev. Stat. 14:01. There are several types of robberies in Louisiana. They are armed robbery (La. R.S. 14:64), first degree robbery (La. R.S. 14:64.1), armed robbery with use of a firearm (La. R.S. 14:64.3), second degree robbery (La. R.S. 14:64), and simple robbery (La. R.S. 14:64.5). There are also two robbery type crimes with different names. With these crimes, the offender also takes something of value that belongs to someone else. These two crimes are carjacking (La. R.S. 14:64.2) and purse snatching (La. R.S. 14:65.1).

The armed robbery statute states that “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. …  Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.”

The first degree robbery statute states that “First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.  … Whoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence.”

The armed robbery with use of a firearm statute states, “When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence.  The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64. … When the dangerous weapon used in the commission of the crime of attempted armed robbery is a firearm, the offender shall be imprisoned  at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence.  The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:27 and 64.”

The simple robbery statute states, “Simple robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.  … Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.”

The carjacking statute states, “Carjacking is the intentional taking of a motor vehicle, as defined in R.S. 32:1(40), belonging to another person, in the presence of that person, or in the presence of a passenger, or any other person in lawful possession of the motor vehicle, by the use of force or intimidation.  … Whoever commits the crime of carjacking shall be imprisoned at hard labor for not less than two years and for not more than twenty years, without benefit of parole, probation, or suspension of sentence.”

The purse-snatching that, “Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.  …  Whoever commits the crime of purse snatching shall be imprisoned, with or without hard labor, for not less than two years and for not more than twenty years.”

There are also several forms of theft in Louisiana. They are theft (La. R.S. 14:67), theft of livestock (La. R.S. 14:67.1), theft of timber (La. R.S. 14:67.2), theft of a firearm (La. R.S. 14:15), identity theft (La. R.S. 14:16), theft of anhydrous ammonia (La. R.S. 14:67.19), organized retail theft (La. R.S. 14:67.25) and theft of a motor vehicle (La. R.S. 14:67.26.

The basic theft statute states that, “Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. … Whoever commits the crime of theft when the misappropriation or taking amounts to a value of twenty-five thousand dollars or more shall be imprisoned at hard labor for not more than twenty years, or may be fined not more than fifty thousand dollars, or both.”

The specific theft statutes all deal with stealing specific things like livestock, timber, firearms, someone’s identity, anhydrous ammonia, or a motor vehicle. Each of these statutes has the common element of taking or misappropriating something that belongs to another.

If you’ve been accused of a crime, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. Evenings and weekend sessions are available by appointment. We will work around your schedule. New Orleans criminal lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2019 Gaynell Williams LLC Attorney at Law.

 

 

By |2019-09-05T08:57:16-05:00August 11th, 2019|Uncategorized|Comments Off on The Differences between Theft and Robbery

Louisiana Hit and Run Driving Law

What is Hit and Run Driving In Louisiana?

Hit and run driving is an intentional crime where the driver of a vehicle, who is involved in or causes an accident, fails to stop the vehicle at the scene of the accident to give his identity and to render reasonable aid. The intent required for hit and run driving is general criminal intent. This means that the driver must have known that he was involved in or caused and accident and refused to render aid and to give his identity.

After a motorist is involved in or causes an accident, he fulfills his obligation under the hit and run statute by stopping at the scene and giving his name, address, and license number of his vehicle to the victim or by reporting the accident to the police or a 911 operator while identifying himself to the person with whom he talks.  It is not sufficient after an accident for a driver involved in the accident to simply stop at the scene and later call for emergency help or notify the police of the accident. The hit and run statute requires the driver to also give his “name, address, and the license number of his vehicle” to those at the scene of the accident or to “report the accident to the police.”

To be guilty of hit and run driving, the driver must be aware that an accident occurred. If the driver is not aware that he caused an accident, he is not guilty of hit and run driving. The Louisiana Hit and Run Driving Statute can be found in Louisiana Revised Statute 14:100 and is detailed below:

 La. R.S. 14:100 – Hit and Run Driving

  1. Hit and run driving is the intentional failure of the driver of a vehicle involved in or causing any accident, to stop such vehicle at the scene of the accident, to give his identity, and to render reasonable aid.
  1. For the purpose of this Section:

(1) “To give his identity”, means that the driver of any vehicle involved in any accident shall give his name, address, and the license number of his vehicle, or shall report the accident to the police.

(2) “Serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

(3) “Vehicle” includes a watercraft.

(4) “Accident” means an incident or event resulting in damage to property or injury to person.

C.(1)(a) Whoever commits the crime of hit-and-run driving where there is no death or serious bodily injury shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

(b) Whoever commits the crime of hit-and-run driving where there is no death or serious bodily injury shall be fined not more than five hundred dollars, imprisoned for not less than ten days nor more than six months, or both when: (i) there is evidence that the vehicle operator consumed alcohol or used drugs or a controlled dangerous substance prior to the accident; (ii) the consumption of the alcohol, drugs, or a controlled dangerous substance contributed to the accident; and (iii) the driver failed to stop, give his identity, or render aid with the knowledge that his actions could affect an actual or potential present, past, or future criminal investigation or proceeding.

(2) Whoever commits the crime of hit-and-run driving, when death or serious bodily injury is a direct result of the accident and when the driver knew or should have known that death or serious bodily injury has occurred, shall be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than ten years, or both.

(3) Whoever commits the crime of hit-and-run driving where all of the following conditions are met shall be imprisoned, with or without hard labor, for not less than five years nor more than twenty years:

(a) Death or serious bodily injury is a direct result of the accident.

(b) The driver knew or must have known that the vehicle he was operating was involved in an accident or that his operation of the vehicle was the direct cause of an accident.

(c) The driver had been previously convicted of any of the following:

(i) A violation of R.S. 14:98, or a law or an ordinance of any state or political subdivision prohibiting operation of any vehicle or means of transportation or conveyance while intoxicated, impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance on two or more occasions within ten years of this offense.

(ii) A violation of R.S. 14:32.1-vehicular homicide.

(iii) A violation of R.S. 14:39.1-vehicular negligent injuring.

(iv) A violation of R.S. 14:39.2-first degree vehicular negligent injuring.

If you’ve been accused of a crime, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. Evenings and weekend sessions are available by appointment. We will work around your schedule.New Orleans criminal lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and thce applicable state or local laws that may impose additional obligations on you and/or your family member. © 2019 Gaynell Williams LLC Attorney at Law.

By |2019-08-09T03:38:47-05:00April 24th, 2019|Uncategorized|Comments Off on Louisiana Hit and Run Driving Law

Jussie Smollett – Was It Legal for Chicago Prosecutors to Drop All Charges Against Jussie Smollett?

Jussie Smollett – Was It Legal for Chicago Prosecutors to Drop All Charges Against Jussie Smollett?

On March 26, 2019, prosecutors in Chicago dropped all charges against the Empire actor Jesse Smollett. He was charged in January with staging a hate crime. In exchange for the charges being dropped, Smollett agreed to community service and to forfeit the $10,000 bond he paid for his release. Police Superintendent Eddie Johnson and Mayor Rahm Emanuel criticized the prosecutor’s decision to drop the charges against Mr. Smolett.

Many people are wondering how is it possible for the Chicago state’s attorney to drop all charges against Mr. Smollett. Like most states, the state’s attorney in Illinois is vested with exclusive discretion to determine whether to bring criminal charges against a suspect, and to decide what charges to bring. Van Guilder v. Glasgow, 588 F. Supp. 2d 876 (N.D. Ill. 2008. In other words, it is up to the state’s attorney to decide whether or not to charge Mr. Smollett. Whether the decision to drop the charges against Mr. Smollett is the right thing to do is up to debate.

In Louisiana, district attorneys have the same prosecutorial discretion. Prosecutors in Louisiana have the power and discretion to choose which crime, if any, the defendant should be charged with. State v. Flores, 669 So. 2d 646 (La. App. 2 Cir. 2/28/96). It is not a violation of any law for the prosecutor to decide not to charge someone. Thus, while it appears that the decision to not prosecute Mr. small that is controversial, it is legal.

If you’ve been accused of a crime, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. Evenings and weekend sessions are available by appointment. We will work around your schedule.New Orleans criminal lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2019 Gaynell Williams LLC Attorney at Law.

By |2019-08-09T03:38:29-05:00March 27th, 2019|Uncategorized|Comments Off on Jussie Smollett – Was It Legal for Chicago Prosecutors to Drop All Charges Against Jussie Smollett?

Expungements in Louisiana – What Types of Crimes Cannot Be Expunged in Louisiana?

Expungements in Louisiana -What Types of Crimes Cannot Be Expunged in Louisiana?

by Attorney Gaynell Williams

Our previous blog on Expungement of DWI/DUI and Criminal Arrests and Convictions can be found at Louisiana expungements in general.  This blog discusses certain crimes that cannot be expunged. As you may know, to expunge a criminal record means to remove a record of arrest or conviction, photographs, fingerprints, disposition, or any other information of any kind from public access. However, an expunged record is not destroyed.

Generally, a conviction cannot expunged if it is for any crime or an attempted crime that is designated as a crime of violence by the prosecuting attorney or that  is defined as a sex offense as defined by R.S. 15:541, involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).

The following crimes of violence enumerated in R.S. 14:2(B) shall always be designated by the court in the minutes as a crime of violence and cannot ever be expunged: (1) Solicitation for murder; (2) First degree murder; (3) Second degree murder; (4) Manslaughter; (5) Aggravated or first degree rape; (6) Forcible or second degree rape; (7) Simple or third degree rape; (8) Sexual battery; (9) Second degree sexual battery; (10) Intentional exposure to AIDS virus; (11) Aggravated kidnapping; (12) Second degree kidnapping; (13) Aggravated arson; (14) Armed robbery; (15) Assault by drive-by shooting; (16) Carjacking; (17) Terrorism; (18) Aggravated second degree battery; (19) Aggravated assault with a firearm; (20) Armed robbery; use of firearm; additional penalty; (21) Second degree robbery;(22) Disarming of a peace officer; (23) Second degree cruelty to juveniles; (24) aggravated crime against nature; (25) Trafficking of children for sexual purposes; (26) Human trafficking; and (27) Home invasion.

Sex offenses that may not be expunged are: trafficking of children for sexual purposes, crime against nature, aggravated crime against nature, crime against nature by solicitation, felony carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, computer-aided solicitation of a minor, prohibited sexual conduct between an educator and student, prostitution; persons under eighteen, purchase of commercial sexual activity, contributing to the delinquency of juveniles, sexual battery of persons with infirmities, obscenity by solicitation of a person under the age of seventeen, video voyeurism), rape, aggravated or first degree rape, forcible or second degree rape, simple or third degree rape, sexual battery, second degree sexual battery, oral sexual battery, intentional exposure to HIV, a second or subsequent conviction of voyeurism, or a second or subsequent conviction of sexual abuse of an animal) committed on or after June 18, 1992, or committed prior to June 18, 1992, if the person, as a result of the offense, is under the custody of the Department of Public Safety and Corrections on or after June 18, 1992.

If you’ve been accused of a crime, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. Evenings and weekend sessions are available by appointment. We will work around your schedule.New Orleans criminal lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2019 Gaynell Williams LLC Attorney at Law.

By |2019-08-09T03:38:15-05:00March 20th, 2019|Uncategorized|Comments Off on Expungements in Louisiana – What Types of Crimes Cannot Be Expunged in Louisiana?
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