 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Oliveaux v. St. Francis Medical Center12/15/2004
person is a party to the action or a nonparty[.]
In short, the trier of fact shall determine the degree or percentage of fault of all persons found to have contributed to or caused the injury . SS v. State, 2001-943 (La. App. 3 Cir. 3/19/03), 846 So. 2d 871. This charge fairly and reasonably identified the issue of allocation of fault and provided correct principles of law for the jury's consideration. Smart v. Kansas City Southern, supra.
(B) Independent and intervening cause. Oliveaux contends the following instruction was "a flatly incorrect statement of law which is not counterbalanced by a clear statement of the correct principles":
When an accident results from two acts of negligence, one more remote and one occurring later, the presence of the latter cause prevents the finding of liability on one responsible for the more remote cause.
Oliveaux argues that this misled the jury into disregarding Dr. Perkins's negligent physical examination and CPS's inadequate investigation because they were followed by Duncan's murderous actions.
The court's charge tracks the model charge in Johnson, supra, ยง 3.25, and was explicitly approved in Arcadian Corp. v. Olin Corp., 2001-1060 (La. App. 3 Cir. 5/8/02), 824 So. 2d 396, writ denied, 2002-1930 (La. 10/25/02), 827 So. 2d 1174. This charge fairly and reasonably identified the issue of superseding cause and provided correct principles of law for the jury's consideration. Smart v. Kansas City Southern, supra.
(C) Independent contractor status. Oliveaux contends the court gave an incorrect and inaccurate instruction, designed to obtain a jury finding that St. Francis was not vicariously liable for the actions of Dr. Perkins:
Generally, employers are answerable for the damages occasioned by their servants and overseers in the exercise of the functions in which they are employed. La. C.C. art. 2320. The concept established by La. C.C. art. 2320 is called "vicarious liability." However, vicarious liability does not apply when an independent contractor relationship exists.
A principal generally is not liable for the negligence of an independent contractor while performing his contractual duties.
The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.
The existence of an independent contractor agreement is not necessarily dispositive of the issue of whether a doctor is an independent contractor, as opposed to an employee of a hospital, and courts will inquire as to the real nature of the relationship and the degree of control exercised or ability of control by the hospital over the doctor's activities.
The independent contractor relationship exists when the work is of an independent nature with the independent contractor using his/her own judgment as to the best way to perform the task.
A principal is entitled to maintain supervisory control over work performed by an independent contractor in order to insure compliance with the contract terms.
It is when the principal exercises operational control of the work that the status of independent contractor may be in doubt.
Mere inspection of the work done by an independent contractor and direction as to the final results of the project is insufficient to support a conclusion that the principal has retained enough control over the project to defeat the principal/ independent contractor immunity.
The charge tracks, almost verbatim, this court's summary of the law of the status of contract physicians in Campbell v. Hospital Service Dist. No. 1, 33,874 (La. App
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|