Louisiana Personal Injury Lawyer Blog

In May 2005 the Third Circuit of the Louisiana Court of Appeals upheld a significant general damages award rendered in favor of Clyde Rayburn of Hineston. Mr. Rayburn, an 83 year old widower, was injured in 2003 when he was stopped in his pickup truck at an intersection and was struck from the rear by a school bus. He sustained injuries to his right shoulder, neck, and lower back and the defendants stipulated to liability at a 2004 trial. While Mr. Rayburn’s neck and lower back complaints were resolved, at the time of trial he continued to have difficulty with his right shoulder.

According to the testimony of his physician Dr. Drury, Mr. Rayburn has a chronic complete tear to his rotator cuff. A chronic tear means that the tear initially occurred six months or more before examination (and the accident) and completely tore during the accident. Mr. Rayburn had no complaints of pain before the accident and was quite active. After the accident, however, he had difficulty lifting his arm over his head or reaching out to pick up anything, even something as light as a gallon of milk from his refrigerator. Dr. Drury also testified regarding the prognosis of the injury and indicated that Mr. Rayburn was not a candidate for surgery and, although he would have good months and bad months, his condition was permanent.

The trial court believed Mr. Rayburn’s testimony that the preexisting rotator cuff tear did not hinder his lifestyle which was affected for the worse by the accident. As such, the court awarded Mr. Rayburn $85,000 in general damages and $3,450.15 in medical expenses. The general damage award was appealed as excessive to the court of appeals.

The court upheld the damages award and indicated that a "trial court’s factual findings will not be disturbed absent manifest error." Trial courts are typically granted vast discretion in their factual findings. Only if the award for injuries and their effects is a clear abuse of the discretion should they be disturbed. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied. Even a finding that lesser damages were awarded in prior cases with similar medical injuries should not be used to find an abuse of discretion. Prior awards may be looked at by a reviewing court, but only after a finding of abuse of discretion by the trial court has been made, and only to determine an appropriate damages range.

Abuse of discretion is a high legal standard. It entails a failure (by the trial court in this case) to take the facts and law related to the particular matter into proper consideration. An abuse of discretion amounts to an unreasonable departure from legal precedent and settled judicial custom. When a trial court decides a question it must not do so in a way that is clearly against logic and evidence. If that occurs, findings may be reversed on appeal.

The previously mentioned fire at a Coco Resources chemical factor in Denham Springs is now under control.

Information will be updated on this site as it is reported.

A fire has broken out at a chemical factory in Livingston Parish.

More information will be posted as it becomes available.

30 year old Shannon Sampson of Minden was on the job as a supervisor with GATX Rail Field when he fell into a rail car and later died from his injuries. According to Webster Parish's public information officer, Jenny Reynolds, Sampson fell after passing out due to a lack of oxygen.

As reported by the Shreveport Times on their website on March 12th:

Sampson was flown from the scene to a Shreveport hospital, where he later died. Bossier Parish Fire District No. 1 Assistant Chief Skip Pinkston told deputies the oxygen level in the rail car was 7.3 percent, 'which is about half of what we need to function,' Webster Parish Sheriff Gary Sexton said.

GATX Rail Field disassembles and refurbishes rail cars. According to another employee, workers often deal with rail cars that contain (or have held) hazardous materials. This incident is still under investigation to determine what caused Sampson’s fall.

In tragic situations like this one where someone has died in a workplace accident, their employer may be responsible for the damages. Surviving family members may pursue a wrongful death lawsuit and recover the cost of medical expenses, lost wages, or compensation for pain and suffering or loss of companionship.

Whether an employer will be held liable for a wrongful death depends on whether they acted negligently. A negligent action (or inaction) is one that falls below the appropriate standard of care for the situation. When someone works in an inherently dangerous environment the employer must take adequate precautions to ensure safety measures are in place and that employees are properly trained to deal with the dangers present. Cases often hinge on whether the given injury was forseeable. If the employer should have known that it was likely an employee could be injured or killed and did not take action to prevent the injury they will more likely be held liable.

However, what happens when an individual (or their survivors) sues the company they work for? Will the company be held liable even if the president of the company or some official company representative was not negligent? For example, what if someone is killed in a workplace accident due to the negligent actions of a co-worker? The answer to this question is most likely yes.

Under the legal doctrine of Respondeat superior, employers are responsible for the actions of their employees as long as the action in question occurred in the course of their employment. Respondeat superior is also referred to as the Master-Servant rule because it holds masters (employers) responsible for the negligent actions of their servants (employees). In order to prove the liability the employee/employer relationship must be established as well as the scope of the employment. Something occurs within the scope of one’s employment if it happens substantially within the time and geographical limits of the employment and, at least partially, was intended to further the employer’s business.

Proving Employer negligence in a wrongful death lawsuit can be a difficult task. Particularly in an inherently dangerous workplace where a judge or jury will probably believe the injured employee assumed a certain amount of risk in simply in taking their job. The attorney bringing the claim must understand all of the facts of the case to be able to pinpoint employer fault--whether in company policy, procedures, or in the actions of other employees. If someone you love was injured or killed at work it is vital that you have the best possible representation.

Continue reading " Minden Rail Worker Dies After Job Accident " »

Residents of Louisiana, Florida, Virginia and at least twenty-nine other states have reported problems associated with the use of imported Chinese drywall. Reported problems include the emission of foul odors and physical damage to property. In addition, some homeowners have complained of health problems such as headaches, coughing and general respiratory problems.

Although U.S. government investigations into the Chinese drywall issue are ongoing, a recent U.S. Consumer Product Safety Commission ('the Commission') study identified a link between Chinese drywall and the corrosion of metal components in homes. As part of its ongoing investigation, the Commission has issued a precautionary fire alert.

Many affected homeowners have taken a proactive approach. In one U.S. District Court case in New Orleans, plaintiffs' attorneys have requested that the court require Chinese drywall manufacturer Knauf Plasterboard Tianjin Co. ('Knauf') to pay to restore an affected house to the condition that it was in before corrosive gases allegedly damaged property. Although Knauf's attorney agreed that Knauf should remove the drywall from the affected home, the company's attorney argued that Knauf should not be held responsible for the restoration of the home, questioning the claim that Chinese drywall corroded fixtures. According to one source, at least 2,100 people in the U.S. have sued in federal courts, claiming damage from Chinese-made drywall.

Moody's Investors Service ('Moody's') estimates that insurers' claims and litigation costs associated with Chinese drywall will be significant. Nonetheless, the extent of these costs remains unclear. Liabilities will ultimately depend upon how courts rule in ongoing cases. Because reported Chinese drywall problems have been concentrated in Louisiana and Florida, concerned Louisiana homeowners should reference this blog in the future for updates. Alternatively, concerned homeowners may contact the Berniard Law Firm for immediate assistance.

Although Moody's predicts that Chinese drywall will not become a major insurance liability like asbestos claims, some commentators have already begun to draw analogies. Asbestos is a fibrous material that was once commonly used in construction. However, as awareness began to spread that exposure to asbestos can lead to potentially life-threatening illnesses, injured plaintiffs began to sue asbestos manufacturers and suppliers. Asbestos litigation soon became the most expensive mass tort in U.S. history, involving the filing of hundreds of thousands of cases in federal courts. Asbestos cases are complicated by the fact that for some people, asbestos-related symptoms do not manifest themselves until years after exposure. Nonetheless, courts have held manufacturers and suppliers liable for asbestos-related injuries under tort theories of negligence and products liability. While Moody's, again, notes that Chinese drywall will likely not reach the threshold and financial liability that asbestos has, the toxic wallboard is still a danger and a problem.

Prevailing plaintiffs have recovered compensatory damages, and in exceptional cases, punitive damages for asbestos related harms. The same will likely be true for those with Chinese drywall installed in their home. While the courts have still not ruled on cases involving the toxic import, it is important for those who believe they have the faulty wallboard in their home to have it checked out. By having a professional come and inspect the drywall used in your home, you can be best prepared for any future litigation that may come of it. Part of that preparation, though, involves getting the best legal representation you can.

For more information on our firm's involvement with Chinese drywall litigation please contact us or check out our blog section dedicated to news and updates on the matter located here.

According to a 2004 decision of the Louisiana Court of Appeals, the survivors of a New Orleans longshoreman will not be able to recover damages from corporate defendants Buck Kreihs and Dixie Machine. The Plaintiff, Mr. Vodanovich, worked as a longshoreman from 1948 to 1986. Part of his job was to load and unload asbestos cargo at several wharves along the Mississippi. It was at this job that he sometimes worked alongside the defendants employees who performed maintenance on the same ships.

Vodanovich was diagnosed with malignant mesothelioma in 2001. He died in 2002. Prior to his death he brought a lawsuit against Buck Kreihs and Dixie Machine. The defendants were granted summary judgment in 2003 when a trial court found that there was no issue of material fact as to whether or not the defendant’s actions led to the plaintiff's exposure to asbestos and caused his death. On appeal, the Fourth Circuit Court of Appeals agreed with the trial court and affirmed the defendants' summary judgment motion.

Summary judgment is proper when the pleadings, depositions, answers, admissions, and affidavits on file in a case show no issues of material fact to be decided by a jury. As such the moving party is entitled to judgment as a matter of law. Summary judgment effectively dismisses the case of a party that, according to the court, will not be able to prove their burden if the case to go to trial.

In an asbestos case it is the responsibility of the plaintiff to show that it is more likely than not that he was exposed to asbestos from the defendant’s products. If the injury resulted from multiple causes (the plaintiff was exposed to asbestos from many different sources) the defendant’s conduct must be a cause in fact of the injury. According to the Louisiana Court of Appeals in Quick v. Murphy Oil Co., this requires that the defendant’s conduct was a substantial factor in the harm.

In another case, the Louisiana Supreme Court clarified what cause in fact/substantial factor means when they found that negligent conduct would be a substantial factor if the harm would not have occurred without the defendant’s conduct.

If, as in this case, there are multiple defendants, and the plaintiff's injury did not manifest for a long time (e.g. the person is diagnosed years after asbestos exposure), that does not change the fact that the plaintiff must still prove that the defendant’s products contributed to their injury. The bottom line is that the plaintiff must prove he had significant exposure to asbestos that came from the defendant or he will not be successful.

Proving exposure can be very difficult. Here, the court found that the mere fact that the plaintiff loaded and unloaded ships at various wharves in New Orleans, and the defendants employees repaired vessels at various wharves in the same city, was insufficient because the plaintiff could not identify the specific details of the defendant’s activities that related to asbestos exposure. Even in the plaintiff’s testimony he was unable to point to any specific instances where the defendant’s activities caused him to be exposed to asbestos fibers.

If you or a loved one has been diagnosed with mesothelioma and you believe you may have contracted the disease while at work it is important that you and your attorney carefully consider the question of whether to bring a claim and who to bring the claim/s against. If you have been exposed to asbestos from multiple sources you must be able to pinpoint the instances of exposure and how they related to the defendant’s activity in order to satisfy the substantial factor standard outlined above. This may require your attorney to conduct an intense factual investigation, employing one or more expert witnesses as necessary. Representation by a top notch attorney with much mesothelioma/asbestos case experience can mean the difference between a win and a dismissal before the case goes to trial.

As reported by the Ruston Daily Leader in January of this year, the family of Henry White has filed a lawsuit against Grambling State University, its supervisory panel, and the Louisiana Board of Trustees of State Colleges.

In August 2009, 21 year old Henry White was a criminal justice major and basketball player for GSU. He collapsed during what the school termed a "conditioning" drill that involved White and other students running without water in 100 degree heat. White was taken to the hospital after players tried to revive him by pouring water on him. No one called for assistance for 20 minutes. White died a little less than two weeks later.

According to the article, Natalie Wood, White’s mother filed the suit and alleges that

White and other players were forced by Portland [an assistant basketball coach] to run four miles for failing to timely register for school.

The lawsuit does not specify the damage amount. However, White’s mother has been left to pay $300,000 in medical expenses alone.

If a love one has died and the death may have resulted from the negligence of another person or entity, the individual’s survivors may be entitled to collect damages in a wrongful death lawsuit like this one. The damages that can be recovered vary according to the relationship between the deceased and the survivor(s) and can include cost of medical expenses, compensation for pain and suffering, payment for lost wages or benefits the person who has died would have received.

Not just anyone may file a wrongful death claim in the state of Louisiana. Only a surviving spouse, child, parent or guardian, siblings or grandparents may sue for wrongful death. Family members beyond siblings and grandparents may not sue and do not have the right to recover. Siblings may only recover if there is no surviving spouse, child, or grandparents, and they file a suit on behalf of the estate of deceased person and recover through that estate.

The loss of a child is an especially traumatic and tragic event for a parent. Loss of consortium describes another type of claim that typically applies to spouses who have lost their spouse and allows recovery for lost companionship. Loss of consortium can also sometimes extend to parents who have lost a child or children who have lost parents. This type of claim is called a “filial consortium” claim and pays damages for the lost love, companionship, or care of the child or parent. Loss of consortium claims can be difficult to prove because they deal with emotional damages that a court may regard as speculative. In addition, filial consortium claims are not allowed in all states.

This area of the law is obviously very complex. It is absolutely necessary that anyone bringing a wrongful claim know these types of cases inside and out to ensure a maximum recovery. Part of this requires hiring a knowledgeable attorney who can handle the variety of complex legal issues that arise from such tragedies.

A malfunctioning traffic signal located in Rosepine, Louisiana, caused much confusion for two drivers one October morning in 1978. Going about their day, both drivers were given the green signal from their respective sides of the signal. As both drivers moved forward expecting the other to stop they collided. One driver filed suit, and the case that arose from the collision provided an opportunity for Louisiana's Third Circuit Court of Appeal to clarify who is at fault in that type of situation. Through this ruling the court developed precedent for the responsibility in the event of malfunction. At fault was Louisiana's Department of Transportation and Development (Department).

The Court first verified that the traffic signal was malfunctioning at the time of the accident. Both drivers and many uninterested witnesses testified as to the condition of the light. It was described as appearing to have been struck, being twisted, and turning from green to yellow and back on all sides.

The Court then looked to Article 2317 of Louisiana's Civil Code to see who would be held liable for the plaintiff's damages. The Article provides in part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of things which we have in our custody.

The Court explained that under this article, the injured party bringing suit need not prove negligence. Instead, the party must only prove that the thing which caused his damage was in the care or custody of the defendant, that the thing had a vice or defect and that it presented an unreasonable risk of injury to another, and that his injury was caused by the defect.

In other words, when applying this article to the facts surrounding the accident, the article provides for strict liability of the owner of the malfunctioning traffic light. The Court found that the traffic signal was in the custody of the Department, it was defective, and the injuries sustained in this case were caused by the defect.

Additionally, the Court discussed the duties of a motorist on entering an intersection controlled by a traffic signal exhibiting a green light. The motorist is entitled to assume that traffic approaching the intersection from either side will comply with the red light and stop. In fact, several cases have provided that a motorist given the green light is not obligated to look to his left or right before entering the intersection. All that is required is that the favored motorist maintain a general observation of the controlled intersection.

The City of Rosepine was also listed as a defendant, but the Court found the City to not be liable. The only obligations of Rosepine concerning the traffic light were to furnish electricity for its operation, to replace bad bulbs, and to notify the Department of any malfunction. The Court found no showing that the City had notice of a malfunction that would require them to give notice to the Department.

Should you find yourself in a similar situation because of a malfunctioning traffic signal or perhaps an incorrect red-light camera, radar-determined speeding violation, etc., attaining proper legal counsel is paramount. Only after discussing with an attorney your legal rights can you feel truly confident that the law is being handled properly.

How does the law treat someone bringing a lawsuit who may be somewhat at fault for the incident? Let's assume an injured Louisiana resident wants to sue another driver for crashing into her vehicle. In his defense, the defendant driver argues that the plaintiff failed to properly yield, and is therefore at least partly to blame for the accident.

Depending on whether the jurisdiction follows the contributory, purely contributory, comparative, or purely comparative negligence regime, the defendant may be fully liable, partly liable, or not liable at all for the damages sustained by the plaintiff. These legal tests of contributory and comparative negligence are critical for injured plaintiffs to understand, as they may decide just how much or how little one can recover from a defendant if the accident was not fully the fault of just one party. Louisiana follows a pure comparative model. Whereas other negligence regimes might bar a plaintiff from recovering damages if they are more than 50% at fault for the injuries, the Louisiana model allows a jury to award damages as long as the defendant is simply a little bit at fault.

The defense of comparative negligence is critical in products liability litigation. Recent headlines regarding the Toyota recalls reveal that the car manufacturer may already be laying the groundwork for this type of defense in anticipation of future litigation.

In a recent New York Times article written by Nick Bunkly, Toyota claims that after a San Diego man's Prius failed to stop, an "examination showed that the car would have stopped when the driver firmly applied the brakes." Experts in products liability litigation are waiting to see just what methods Toyota is using to make such determinations. If a court buys such argument as plausible, it may be up to a jury decide how much of the incident was the fault of the driver and how much was the fault of the car itself. Just as much an example of how expert testimony can affect the outcome of a trial, this also serves to illustrate how culpability is determined for the accident.

Just like Louisiana, California is a purely comparative negligence jurisdiction. This means that a Toyota driver's ability to recover monetary damages for his injuries, is directly proportional to the percentage he was at fault. Even if Toyota prevails in convincing a jury that an individual driver was at least partly to blame for a particular accident, that driver may still be able to recover a percentage of damages from Toyota based on the pure comparative theory. If a jury were to find that the plaintiffís inability to press the breaks caused 75% of the damage, the driver could theoretically still recover 25% of the total cost of the damages.

All too often, would-be plaintiffs are left frustrated that their injuries are not fully compensated, even for what seems like a minor mistake on their own part. Other times they may be barred from recovery completely. The car-crash example from the beginning of this article was taken from a real story of a tragic car accident this past December in Metairie, Louisiana. According to the report, the deceased woman who sustained the injuries failed to yield as the other driver was following the speed limit. Therefore, even if her surviving family members were to bring a wrongful death lawsuit in a "plaintiff-friendly" pure comparative jurisdiction like Louisiana, a jury could reduce any recovery by the percent she was at fault, even to the point of zero.

With such a flexible system, plaintiffs must rely on the expertise of their legal counsel to analyze all the facts of the case. Minor details in any one accident could mean the difference between large and small percentages of recovery.

Continue reading " How Might Toyota Defend Itself?: A Lesson in Pure Comparative Negligence " »

When traffic accidents occur, courts must examine the basic "rules of the road" that govern drivers' conduct in determining fault. The violation of a traffic regulation is a frequently-used basis for finding that a driver was negligent when the violation results in a crash.

The case of Dyck v. Maddry, 81 So.2d 165, 167 (La. App. 2 Cir. 1955), was one such case where the court referred to basic traffic rules in determining fault. On the evening of June 2, 1954, Ms. Gladys Maddry was driving her Chevrolet coupe south on State Highway 90 just outside of Cotton Valley. Mr. Elmer Dyck approached Highway 90 from a street that intersected but did not cross it, thus forming a "T" intersection. The intersecting street was marked with a stop sign, while traffic on Highway 90 had the right-of-way. Mr. Dyck testified that he approached Highway 90, stopped at the intersection, and after confirming there were no oncoming vehicles, proceeded to make a left turn onto the highway. After he had traveled about 90 feet south of the intersection, Mr. Dyck's car was struck from the rear and overturned by Ms. Maddry's automobile. Ms. Maddry testified that Mr. Dyck drove suddenly into her path and that she immediately applied her brakes to try to avoid the collision.

At trial, the court found that both Mr. Dyck and Ms. Maddry were contributorily negligent and denied their claims against each other. The Court of Appeal upheld the findings of the trial court. Regarding Ms. Maddry's negligence, the court noted that Louisiana law

prohibits the operator of any vehicle upon the highways of this state from driving at other than reasonable and proper speed under the circumstances. A driver shall at all times be on the alert, steadily watch road conditions ahead as they are revealed, and keep his vehicle under such control and maintain such speed as is commensurate with circumstances, and the greater the known hazard the greater should be the degree of care exercised. (Dyck, 81 So.2d at 167)

Accordingly, the court determined that Ms. Maddry's speed was "excessive and unlawful and was a contributing and concurrent cause of the accident." It also concluded that Mr. Dyck's left turn onto Highway 90 "was accompanied with negligence which also was a concurrent and contributory factor to the mishap." This finding was based on further review of Louisiana law which states "a motorist intending to execute a left turn in an intersection must initially ascertain by careful observation that the maneuver can be executed safely." Further, the court determined that

the rule is well settled to the effect that a motorist who merely stops before attempting to enter a right-of-way thoroughfare has only performed one-half the duty resting upon him. To stop and then proceed without ascertaining if it is safe to do so is negligence of a gross character and renders the driver guilty of negligence. (81 So.2d at 167)

Courts continue to rely on a "back to basics" approach when assessing the liability of parties involved in automobile accidents, so drivers must remain keenly aware of their obligations to operate their cars safely under the law.

Continue reading " A "Rules of the Road" Analysis Determines Outcome in Cotton Valley Negligence Case " »

Louisiana law governing a victim’s recovery for on-the-job exposure to hazardous substances like asbestos has changed quite a bit in the last half-century. The amount a victim can recover – and the way in which they must do so – can be very different depending upon when the victim was exposed to asbestos. One particular case involving a West Monroe paper mill illustrates how critical the date of exposure to asbestos is to a victim’s ability to recover.

The case of Graves v. Riverwood International Corp., 949 So.2d 576 (La. Ct. App. 2007), starts with a fairly straightforward story. Walter Graves worked at a paper mill in West Monroe from 1943 until 1986. During the term of his employment there, he was frequently exposed to asbestos-containing insulation materials. His employer failed to warn him about asbestos, provide him with protective equipment, or educate him about techniques to minimize his personal danger. When Walter was later diagnosed with mesothelioma, he sued the owners of the mill because of the frequent and excessive exposure to asbestos on the job. Walter died shortly after being diagnosed. His family carried on the lawsuit.

The courts had little trouble determining that Mr. Graves’ employer was liable to Walter and his family for exposing Walter to asbestos. The courts found Walter’s employer was “strictly liable” because asbestos poses an unreasonable risk of harm to others. Furthermore, Walter’s employer had control and ownership of the dangerous materials. Finally, Walter endured “significant exposure” to that asbestos, which resulted in his injury – mesothelioma.

While this may seem to be an open-shut situation, another part of this story took place in the Louisiana legislature. During the time Walter worked at the paper mill, legislators changed the ways in which the law handled “occupational diseases." Before 1952, a person could sue their employer and receive compensation in the form of damages. In 1952, the Louisiana Workers’ Compensation Act required that injuries caused by exposure to hazardous materials on the job be addressed through workers’ compensation payment, becoming the only way for employees to get compensation in the event of a harm. Employers are now immune from tort suits for such injuries. Thus, the difference in receiving a potentially large damages award or merely workers’ comp payments depends very much on when the exposure to hazardous materials was deemed to occur.

In Walter’s case, the court found that because he dealt with asbestos materials so frequently in his job beginning in 1943, he endured “significant exposure” well before 1952. Walter’s family received a damages award of $3,000,000 in addition to almost $40,000 for medical expenses. While they could have received reimbursement for medical expenses under workers’ compensation, Walter’s family would not have been able to seek such a large judgment against the mill’s owner. The place where Walter’s story intersected the development of the law was incredibly crucial in determining how much and what type of compensation his family could receive.

Continue reading " Case of West Monroe Paper Mill Demonstrates Changes in Mesothelioma Law " »

In 1994, Conoco, Inc. initiated construction on a project that required the demolition of abandoned homes in Westlake, Louisiana. Along with demolition, the project required the evacuation and removal of soil. The soil, which contained asbestos, was distributed to homeowners that spread the soil on the lawns of their homes.

According to La. C.C. art. 2315.2:

“In addition to general and special damages, exemplary damages may be awarded, if it is proved that plaintiff’s injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances.”

Here, it was not proven that Conoco’s behavior was “wanton and reckless”, nor were their actions deemed highly unreasonable or involving an extreme departure from ordinary care. As an employer/employee involved in the removal or disposal of asbestos containing material, you have a duty to take reasonable steps to prevent public exposure. Steps include:

(1) visual surface test
(2) soil contamination test
(3) Option to replace contaminated soil, or sufficiently cover contaminated soil

In addition to punitive damages, the homeowners sought to recover (i) increased risk of developing asbestos related cancer, (ii) damages for mental anguish, and (iii) diminished property values. The requirements to recover under each claim are put forth below.

Increased Risk
In Conoco, homeowners sought damages for "slight" exposure to asbestos, which only "slightly" increased the risk of contracting related cancer. As such, Louisiana does not allow recovery for a "slightly" increased risk of developing cancer. You must show that you are likely to contract cancer from "significant" exposure, the mere possibility is not sufficient. Expert witnesses, i.e. doctors and asbestos specializes, may be necessary to prove exposure levels.

Mental Anguish
Louisiana courts have been more inclined to award damages for mental anguish when it is accompanied by a manifest physical injury. However, to receive damages for mental anguish and emotion distress related to asbestos exposure, you must show, absent any physical injury, that you have a "particular likelihood of genuine and serious mental distress arising from the circumstances." The strict language has been enforced to prevent frivolous suits from litigation.

Diminished Property Value
A property's exposure to asbestos can have a direct and significant impact on the value of the home. In the present case, homeowners introduce what is called the "stigma effect" to show that the value of their property experienced a 10% drop. In short, "when the owners attempt to sell their property, they will have to disclose the fact that the property had once been contaminated with asbestos-containing soil. "Asbestos" certainly carries a negative connotation and will raise a red flag to potential home-buyers. Home owners in Westlake with known asbestos exposure should consider these issues when selling and purchasing homes.

All in all, asbestos is obviously a messy issue that all parties involve was never a problem. In the instance mentioned above, there were a lot of complex legal assertions and claims that all derived from a simple error that was likely a common mistake. While manufacturers or companies may not have intentionally allowed the substance into the air or everyday lives of families across Louisiana, they owe an accountability for the error in their ways. Only through proper legal representation can someone exposed hope to get the settlement or ruling that truly meets their interests and not the company's bottom line.

Two daughters of a veteran who resided at the Northeast Louisiana War Veterans Home have sued the state's Department of Veterans Affairs and the administrator of the home after their father died as a result of wandering out from the home into freezing temperatures, according to the Monroe Newsstar.

The lawsuit alleges that staff failed to notice their 83-year-old father, Ernest Emmitt Moody, leaving the home in his wheelchair early in the morning on January 4. Although cameras recorded Moody leaving the home around 3:45 a.m. through a rear exit, the daughters claim in the lawsuit that the V.A. Home told them there were no cameras. The assistant administrator at the facility, Tommy Shoemaker, has stated that the staff did not begin searching the building until about 4:30 a.m. After failing to locate Moody, the staff called Shoemaker, who came to the home to search the grounds and the pecan orchard.

The Newsstar reports that

He had managed to get across U.S. 165 to Venable Lane where his wheelchair and shoes were found between Denmon Engineering and Copeland's Electric Co. A Copeland's employee tried calling the VA home to see if they were missing a patient after discovering Moody's wheelchair in a ditch, but could not get an answer.

He then drove to the facility and learned a patient was missing. Returning, he found Moody some 800 feet from his wheelchair in a pecan grove behind Denmon's, where he was carried to warmth while awaiting in the ambulance.

The temperature outside the morning of Moody's escape was about 25 degrees with a mixture of rain, sleet, and snow. When he left the home, Moody was wearing only a t-shirt and flannel shirt, pants, and shoes. The ambulance transported Moody to St. Francis Medical Center, but he was later transferred to LSU Health Sciences Center. Moody later died on January 6.

The daughters filed the lawsuit blaming the V.A. Home and its administrator for their father's death. According to the Newsstar, the lawsuit alleges Moody died as a result of

the negligence of the defendants, including failure to perform timely nightly room checks; falsifying medical records regarding a room check on the night Moody went missing; failure to secure the premises; and deviating from the appropriate standard of care.

Louisiana law requires nursing homes to provide a reasonable standard of care based on the mental and physical condition of the resident. In Hinson v. Glen Oak Retirement System, Louisiana's Second Circuit Court of Appeal found that

This standard of care must take into consideration the fact that nursing home residents have a need to live within the least restrictive environment possible in order to retain their individuality and some personal freedom and preserve their dignity and integrity.

In 1986, the Second Circuit decided a case involving the death of a nursing home patient in very similar circumstances. That case, McGillivray v. Rapides Iberia Management Enterprises, dealt with the death of a patient who wandered out of his nursing home in Shreveport around 4 a.m. into 42 degree January weather. The staff of that nursing home found the patient about 30 minutes after discovering him missing, but he died of heart failure as a result of the exposure. Because that patient was known to wander unexpectedly, the court found that the nursing home in that case had a duty to protect the patient from exposure should he leave the home unattended during the night.

Although a nursing home patient may be physically repsonsible for wandering out of the safety of the nursing home, Louisiana courts, in cases such as Sharbino v. State Farm Mutual Automobile Insurance Company, have found that disabilities resulting from age diminish one's duty of care.

Where a nursing home has breached a duty to a patient, the plaintiffs in a wrongful death action need prove only that the nursing home's breach of duty resulted in the patient's loss of chance of survival, according to a recent decision in Guilbeau v. Bayou Chateau Nursing Center.

Nursing home negligence is a serious concern for the aging population in Louisiana.

Continue reading " Death at Monroe V.A. Home Leads to Lawsuit " »

According to Louisiana state courts, jailers may be liable for negligence if an intoxicated prisoner is injured while in custody. In fact, these courts have repeatedly cited the principle that the police owe a higher degree of care to an intoxicated person than to an unimpaired person.

In the 1980 case of Burns v. Town of Leesville, the Third Circuit rejected Billy Burns' claim that the Leesville City Jail, as well as several other parties, were negligent in placing him in the top bunk of a prison bed after arresting him for disturbing the peace by being drunk. During the course of his time locked up, Burns rolled or fell off the top bunk and struck his back on a metal railing before landing on the floor of his cell. According to Burns and other prisoners, he called out for medical assistance several times but his jailers ignored his requests. Burns was released from jail the next morning. After his release, he sought medical treatment and was hospitalized for several days due to a contusion and abrasion of his back with an acute lumbar sprain.

The Court of Appeals, stating that voluntary intoxication does not absolve a person of his own negligent acts, found that Burns was responsible for his own injuries which were due to his attempt to get down from the top bunk in an unsafe manner. Because of this, the court of appeals found for the jailers.

Though the Burns case revolved around intoxication due to alcohol, Louisiana state law generally defines “intoxication” more broadly. For example, Louisiana DWI law states that operating a vehicle under the influence of a “controlled dangerous substance” such as heroin or marijuana amounts to “operating a vehicle while intoxicated.” As a result, police officers must take extra precautions when confronted with an intoxicated person, impaired by drugs, alcohol, or both, and must reasonably protect that prisoner from harm. Indeed, in Barlow v. City of New Orleans, the Louisiana Supreme Court likened an intoxicated person to a “child of tender years” in determining what level of care is appropriate.

In Barlow, police officers locked the drunk plaintiff in the back of a police car, at which point he lit a match that set the back compartment of the car on fire and caused him to be severely burned. In addition, although the court in Barlow emphasized that a person in custody is owed a duty of care to protect him "within reasonable limits from injury not attributable to his own willful act," it affirmed the lower court’s damages award of $9100. Despite the fact that the court assumed Barlow started the fire by his own act of lighting a match, it focused on the fact that the police officers had left him unattended in the locked patrol car for an excessive amount of time—at least long enough for Barlow to light the match, set the fire, and be burned so extensively that he was hospitalized for 42 days to treat his injuries.

To summarize, Louisiana state law requires police officers and jailers to exercise a higher degree of care to intoxicated people in custody. They can be held liable for negligence if they fail to provide this degree of care and the prisoner gets injured. This is true whether or not the injuries were caused solely by the acts of the prisoner, as Barlow shows. Additionally, the term "intoxicated" is not restricted to drunkenness or alcohol, but applies more broadly to a prisoner with a compromised physical or mental state due to alcohol, drugs, or both.

Continue reading " Louisiana Jailers Owe a Higher Duty of Care to Intoxicated Prisoners " »

Ouachita Parish deputies arrested Brandon Martin, of West Monroe, for driving while intoxicated, “DWI,” on Sunday, February 21. While this incident might seem relatively commonplace, a few aspects of Martin’s arrest make it noteworthy. According to a report by the staff at The News Star:
“When [the deputies] found [Martin], they said he was lying in the rear of the vehicle on top of musical equipment. Two people in the front seat said Martin had been driving.

Deputies said Martin declined a field sobriety test, but submitted to a chemical test that showed his blood alcohol content at .184. A blood alcohol level of .08 is considered intoxicated in Louisiana. The arrest report showed Martin was charged with DWI in 2005, 2007 and 2009.” (emphasis added)

Those emphasized passages make this arrest extraordinary. Mr. Martin was behind the wheel with a blood alcohol content more than twice the legal limit in Louisiana. Even worse, Martin should have known better because he had previously been arrested on multiple occasions for the same conduct. But instead he chose to drive his car while severely intoxicated – again.

Fortunately for area drivers, authorities got Martin off the road this time before he caused an accident and serious injury to others. That may not be the case if Martin is allowed to drive drunk again or if other repeat DWI offenders like Brandon Martin get behind the wheel drunk. According to The Center for Disease Control's statistics, alcohol-impaired crashes accounted for almost one-third (32%) of all traffic-related deaths in the U.S. in 2008.

In addition to criminal punishment, these drivers should pay for the injuries they cause. A person who drives a car while intoxicated is presumed to be acting negligently. Therefore, a person injured as a result of a drunk driver’s conduct may be entitled to receive damages to pay for injuries caused by that driver. Drivers with particularly egregious conduct, like Brandon Martin, might also be liable for punitive damages. A court or jury can award that type of damages as a way of punishing a defendant for his extraordinarily bad conduct. Punitive damages are above and beyond any compensatory damages awarded - damages that reflect the actual cost of a plaintiff's injuries.

Most people probably consider themselves safe drivers, and feel comfortable with their skills behind the wheel. The unfortunate reality, though, is that even the safest drivers can be injured by the negligent conduct of another. Driving does not have to be dangerous. However, people who choose to get drunk then get on the road dramatically reduce the safety of roads and highways for all others who need to use them.

We count on local authorities to keep folks like that off the road. But if you have been injured by a drunk driver or if you would like to speak with someone about your legal rights, the attorneys at The Berniard Law Firm are available to answer any questions you might have.

Have a Great St. Patrick's Day but please do not Drink and Drive.

With municipal governments around the nation facing massive budget shortfalls, many have already taken unprecedented steps in cutting traditional services. In Tracy, California, residents now must pay $300 phone charge for any 911 call they make or pay a $48 dollar yearly fee for the “unlimited” 911 plan. The change has drawn the ire not only of local citizens, but people across the country, perhaps fearful of what their own local governments may do to cut costs.

On the surface, residents of St. Tammany parish who rely on a dependable 911 system, may not see things quite as badly. According to a recent Times-Picayune article by Jeff Adelson, the local government recently spent $85,000 for installation of a 911 photo system designed to aid first responders arriving at the scene of an emergency. If national trends are any indication, however, local city and county governments throughout Louisiana will eventually face difficult decisions when trying to decide which services to improve and which services to scale back.

While not explicitly contributing to budget shortfalls, a recent delay in services helped cause one Covington homeowner untold frustration and possible property damage after the leftover problems from broken sewer elements went unattended for nearly six months. As Benjamin Alexandar-Blotch reports in his article from March 5 of this year:

Leslie Watson, 31, first noticed the broken culvert in front of her property on West 9th Avenue in November 2008, and she gave the public works department a call. (I)n July (she) got back in touch with public works to remind them of the issue. In August, officials responded to her request and fixed the culvert under the street.

But, after digging up the road to fix it, public works never returned to repave it, leaving her a gravel section of roadway with large potholes. Watson called public works and was told they'd come to repave her street within two weeks. But, when nothing occurred, Watson says she called back again and again over the next several months, and was given several excuses, such as they were understaffed or the weather was not right.

"My front yard is a swamp pit," Watson said. "I spent a lot of money to build my house, and now I have to park down the street and walk home in pitch dark, and I can't do any landscaping, all because public works cannot repair one section of 9th Avenue."

According to the article, Mayor Candace Watkins and other city officials blame an outdated system that utilized a rotating schedule and have assured residents that future problems of this nature will not occur. While there is no direct information linking this particular issue with budget shortfalls in Covington, mounting budget pressures in all municipalities, tweaks and adjustments to new organizational systems, and even honest mistakes may eventually cause more problems for homeowners in the future. So what is a homeowner to do?

Many insurance plans cover various property damage like that caused by broken pipes. But if the City’s inability to address the problem directly or even indirectly causes the damage, the property owner may have more difficulty in immediate recovery. The insurance company may require proof from the proper authorities that the break was within the responsibility of the City and falls appropriately within coverage of the homeowner’s insurance policy. Any breakdown in communication between the homeowner, the insurance company, and the city may delay this process and jeopardize a homeowner’s claim.

Furthermore, not all sewer breaks occur at the point in the lines where the city must take responsibility. If a break or leak occurs along the line of pipe from the main line to the property, homeowners must take responsibility as mandated in Covington City Ordinance 98-72(a) which states in pertinent part:

All residential and commercial property owners shall be required to repair, within 60 days of notice by certified mail, any and all breakages in their sewer lines extending from the individual structure to the central sewer system for the city.

This process requires the city to notify the homeowner via certified mail of the particular break. But there is no time requirement for the city to notify the homeowner. Between the time a City assesses a sewer break and the time it gives proper notification, a homeowner may have already fixed the problem, only to learn it was the responsibility of the City. Other problems may arise when trying to determine just what type of problems a particular insurance policy will cover or when it is not clear exactly what caused the sewage issue.

If you are having issues regarding your local municipality taking the proper measures to address damage to your property or other issues relating to your homeowner’s insurance, contact the Berniard Law Firm Toll Free at 1-866-574-8005. Attorney’s specializing in insurance policies and property damage caused by a variety of factors are available to help you secure the financial support entitled to you.

To see the complete listing of City Ordinances for Covington, click here. Search the chapters in the menu on the left-hand side of the screen in order to view a particular ordinance.

For City Ordinances and Codes in other municipalities, visit your local city or county website. A partial list of city and parish websites can be found here.

28 year old Arlandus Albertlee Green, Jr. of Minden has been arrested and charged with running down two people with his car.

Green, also known as Lance, has been accused of aggravated battery and aggravated assault. As reported in the Bossier Press Tribune and Minden Press Herald’s nwlanews.com,

Minden Police Chief T.C. Bloxom said on February 7, Green and Lamario Elkins began arguing on Sheppard Street. During the argument, Green pulled a Jimenez 9 mm and pointed it at Elkins.

‘Green got into his Monte Carlo and put it in reverse,’ said Bloxom. “He then drove backwards and ran into two bystanders.”

The bystanders, Jane Sneed and Bobby Tobin were taken to Minden Medical Center with contusions and released later the same day. The argument apparently centered around a female.

Car accidents can take many different forms. Others beyond merely drivers and passengers are sometimes injured. Here, two innocent bystanders suffered injuries when Mr. Green backed into them. While Mr. Green has been arrested he may also face civil consequences for his actions.

Under Louisiana law someone injured in a car accident that was not their fault should not suffer financially at all because of the accident. The responsible party and their insurance company can be found liable damages, including: current and future medical expenses, lost wages for time spent in the hospital or recovery, and possibly even damages for pain and suffering. Civil liability may exist regardless of the outcome of criminal charges.

A finding of fault in an auto accident typically requires that the defendant driver acted negligently. This means that the driver must have had a duty of care to the injured party or parties, breached the duty, and the injuries were caused by the breach. Causation in itself requires both cause in fact, (the injury would not have occurred but for the breach) and proximate cause. Proximate cause entails that the negligent act was not too remote from the injuries. That is, it must have been reasonably forseeable that the injuries would result from the breach.

Each element of a liability claim has its own legal nuance. As such, proving fault through negligence in an auto accident case can be difficult and complex. If you have been injured in an auto accident that was not your fault you need an attorney with significant experience in this area of the law.

Continue reading " Minden Man Arrested for Running Down Two People With his Car " »

Asbestos. Mesothelioma. Two terms commonly thrown around in the media, on the news, and even on the internet. But what exactly do they mean, how much of a threat are they to your health, and what can you do about it?

Asbestos are naturally occurring minerals that when inhaled can be very dangerous. These miniscule minerals, commonly referred to as fibers, build up scar-like tissue in the lungs and impede them from healthy functioning. Common sources of asbestos include disturbed or damaged insulation, dry wall, cement, roof shingles, and even floor tiles.

Mesothelioma on the other hand is a form of cancer that affects the lining of the body's internal organs. This lining is referred to as mesothelium. Symptoms of mesothelioma include chest pains, shortness of breath, wheezing, and fatigue. Cancer.gob reports that although mesothelioma is rare, rates have been on the rise over the past few decades.

Just as recently as 2008, TransWorldNews reported that New Orleans parish was in the process of using a special technique to demolish asbestos-laden buildings still left over from Hurricane Katrina. Destruction was monitored by the EPA and is necessary to make sure that citizens of Orleans Parish are safe, especially given that local residents are still battling the disease.

For example, just several months ago, NOLA.com reported that William Simmons, founder of a local chrome-plating business, died of mesothelioma. The source of his exposure was not reported. Although Asbestos.net reports that it takes years for mesothelioma to manifest, safely getting rid of old New Orleans properties that have for example, asbestos laden pipe, is a step in the right direction to eradicating potential present and future exposure that could lead to problems down the road.

In addition,
Asbestos.net reported as of a few weeks ago that at least one mesothelioma case is ongoing in Orleans parish. The case, involving an allegation of second-hand exposure to asbestos at the Avondale Shipyard, was recently delayed due to (of all things!) the New Orleans Saints making the Super Bowl. Whether the judge made the correct decision in delaying an important personal injury case for a football game is a matter for a different blogging day.

Clearly, asbestos and mesothelioma are ongoing issues in New Orleans. Mesothelioma needs to be diagnosed quickly for treatment to be effective.

Continue reading " Recent Deaths in New Orleans Stem from Mesothelioma " »

In October 2009, as Congress was caught up in the health care reform debate that is still raging on Capitol Hill, Merlyna Adams of LaPlace took a trip to Washington, D.C. to show legislators that she is not frivolous. Worried about proposals to limit patients rights in health care, Merlyna and eight other families who have been victims of medical malpractice wanted to be sure their stories were told.

As reported by Public Citizen on their website,

Merlyna is a school principal whose medical treatment for a kidney stone in 2007 led to a lengthy stay in a hospital’s intensive care unit, congestive heart failure, renal failure, pulmonary failure and amputation of both her hands and her legs below the knee. All of this was preventable. She told her story frankly and eloquently to the news media, and again in meetings with her state’s members of Congress. The everyday tasks that so many people take for granted, like brushing their teeth or eating, she no longer can do on her own, she said.

Stories like Merlyna’s show how devastating medical malpractice can be. Most victims (who survive) suffer serious injuries and require lifelong care. And many victims don’t make it. According to the Institute of Medicine, as many as 98,000 Americans die each year from preventable errors. In considering healthcare reform proposals, Members of Congress should focus on patient safety and reject legislation that strips patients of their rights.

Medical malpractice occurs when a health care provider violates the appropriate standard of care when treating a patient, leading to the patient’s injury. Medical malpractice can result from either action or lack of action. Some examples include misdiagnosis, inappropriate treatment, or unreasonable delay in treating a condition. A medical malpractice claim can be brought by an injured patient against any responsible licensed health care provider but must be brought within one year of the when the act or omission occurred (or one year from the discovery of the problem, but no longer than three years from when the act or omission occurred).

In Louisiana medical malpractice damages are limited to $500,000, excluding future medical care. Liability is limited to $100,000 per health care provider and awards between $100,000 and $500,000 are paid out of the patient compensation fund. Before a medical malpractice suit may be filed, the party filing the claim must submit the case to a medical review panel. The findings of the panel are admissible as evidence if the case later goes to trial.

Medical malpractice cases often deal with technical subject matter and require the testimony of medical expert witnesses. Under Louisiana law a medical expert witness must be a licensed physical trained in the speciality at issue with knowledge of the applicable standard of care for treatment.

Sometimes medical malpractice claims involve multiple defendants because it is difficult to pinpoint which medical provider’s action caused an injury. When multiple parties are found to be at fault for injuries Louisiana follows a traditional rule of joint and several liability. This means that each defendant is individually liable for the entire amount of the judgment. As such if one defendant is unable to pay the plaintiff may go after other defendants until the entire amount is recovered.

Medical malpractice lawsuits are complicated and robustly defended. If you or a family member have been injured, and you think a health care provider may have been to blame, it is very important that you have dedicated experienced counsel on your side.

Continue reading " LaPlace Victim of Medical Malpractice Goes to Congress, Urges Protection of Patients’ Rights " »

Timothy J. Rogers filed a lawsuit in Jefferson County Texas District Court against Marquette Transportation Co. Gulf-Inland, which is part of Marquette Transportation Company and based in Harahan.

The suit was filed on February 19th and regards injuries Rogers sustained on January 3rd while working aboard the Mary Kay. Rogers did not specify in the court documents how he was injured but states that the injuries were to his back and body. Smith blames the injuries on negligence and unseaworthiness and claims that due to his injuries he has incurred medical costs, pain and suffering, mental anguish, physical impairment and disfigurement, and lost earnings.

Under the Jones Act, (46 U.S.C. § 30104) injured seaman or their survivors may obtain damages from their employers if their employers, shipowners, captains, or fellow crew members, are deemed to have been negligent or if vessels they are working on are not seaworthy. The rights afforded by the Jones Act go beyond those provided by common international maritime law because they allow injured parties to bring claims in state or federal court and entitle them to a jury trial.

Not just anyone who works on a boat is considered a seaman with the right to bring a Jones Act claim, however. The Supreme Court in the 1995 case of Chandris, Inc. v. Lastis ( 515 U.S. 347 (1995)) found that workers who spend less than 30 percent of their time in the service of a vessel on navigable waters are presumed not to be seaman with Jones Act protection.

Even if a seaman brings a claim in state or federal court under the Jones Act, compensation is not guaranteed. Negligence or unseaworthiness must be proven. Negligence entails action or lack of action that fell below the standard of what a reasonable person should have done in the particular circumstances. Specifically, a negligence claim has four major elements of proof: duty, breach, causation, and damages.

First, the Defendant must have owed a duty to the plaintiff. Duty can be created by the relationship between the parties or it may be imposed by law. Second, the duty must have been breached. Third, the breach must have caused the injury. This means that without the breach of duty the injury would not have happened. In addition, the injury must have resulted naturally from the breach. Finally, the injury must have created compensable damages.

An injured seaman may also recover additional damages if the vessel he was on is determined to be "unseaworthy." Recovery for unseaworthiness can include compensation for medical bills, pain and suffering or impairment of earning capacity that resulted from the injury and can be attributed to the unseaworthiness. it is the duty of a shipowner to maintain their vessel. In addition to the condition of the ship, equipment or crew members can render the vessel unseaworthy as well.

If a seaman's injury was not due to the negligence of their employer or a problem with the vessel itself they may still be entitled to compensation. Seaman can recover maintenance and cure even if the owner of the ship did nothing wrong. As long as the seaman was in the service of the ship (even if not on board) when the accident occurred, maintenance and cure must be paid. "Maintenance” in this sense is a maritime term meaning room and board and it is a daily payment to the seaman to cover the cost of room and board which would otherwise be provided on the vessel. Maintenance begins on the date the seaman leaves the vessel because he has been injured. Maintenance payments continue until the seaman reaches a maximum medical cure. A cure is defined as the medical expenses paid by a shipowner when a seaman has been injured and is the seaman's right to medical treatment.

As you can see, while Jones Act claims can be complex, seaman have significant legal protections under the law. As such it is vital that they have competent, diligent representation.

As reported in the Ruston Daily Leader, a tragic three car accident killed 19 year old Francisco Javier Hernandez of Dubach last October. According to State Police records, Hernandez was driving a 2004 Mustang on La.33, lost control of his car, and crossed the center line into the path of a tractor-trailer. The two then collided head on. The driver of the tractor-trailer, 47 year old Joseph Battaglia of Shreveport, escaped the cab of his truck just before it burst into flames. Battaglia was taken to North Central Louisiana Medical Center with minor injuries

A third driver, 24 year old Haley Snipe of Ruston was behind Hernandez at the time of the crash but was able to drive off the road and into a telephone box. Snipe walked away without injuries. Although impairment is not suspected to be a factor in the accident, routine toxicology tests are pending.

In Louisiana, the party at fault for an automobile accident, and their insurance company, is responsible for the damages of the accident and innocent parties should not suffer any financial loss. Louisiana is a direct action state which means that insurance companies can be named directly in the lawsuit. This can sometimes benefit victims because judges and juries may be more apt to award damages when they know they will be paid by an insurance company rather than an individual.

If, as in this case, someone is killed in an accident, their survivors may collect damages in a wrongful death lawsuit. Such damages can include the cost of medical care, lost future wages, compensation for pain and suffering or loss of companionship. Such cases may even include punitive damages meant to punish the party at fault. What damages may be collected depends on the relationship between the survivors and the individual who has died. For example, parents who have lost a child may be able to collect compensation for loss of companionship while a spouse could collect lost future wages.

Proving fault in an auto accident case typically requires proving negligence. This means that the injured party must prove that the defendant owed a duty to them, the duty was breached, and that their injuries naturally resulted from the breach.

Louisiana is different from some states in that in cases where fault for an accident lies with more than one party the damages are apportioned according to the level of fault for each party. For example, if someone is found to be 20% at fault for an accident, they may only collect 80% of the damages because their damages are reduced by the 20% they were responsible for. Louisiana is also unique in that the statute of limitations to bring a claim after an auto accident is only one year. After a year, injured parties are banned from bringing additional claims.

If you have been injured in an auto accident it is vital that you have an attorney who understands accident injury law as well as how Louisiana law may differ from other states.

Continue reading " October Tragedy Demonstrates Complexities of Auto Accidents " »

On the morning of February 2, 1961, Erwin Davis was driving his Chevrolet Impala southbound on Louisiana State Route 66 toward Bains. O.C. Roberts, who was driving a Pontiac with two other passengers, was headed north on the same road in the direction of Angola. When Roberts attempted to slow his car, the front left brake "grabbed," causing the vehicle to cross the center line and veer into the path of Davisís oncoming Chevy. Davis suffered contusions to the head, shoulder, and chest, as well as a neck strain which aggravated a pre-existing arthritic condition. He was hospitalized for six days, wore a collar brace for 10 months, and was placed in traction while recuperating in his home.

According to Louisiana law, a plaintiff has the burden of proof to establish the essential facts that support his theory of recovery. At trial, Davis put on evidence showing that the accident occurred because Roberts' car crossed the road's center line and invaded Davis' lane. This established a prima facie case of negligence against Roberts. A prima facie case means evidence which, unless countered by the defendant, would support the plaintiff's theory of recovery. Here, Roberts had a duty to operate his car in a safe manner, which would include maintaining control of his vehicle and keeping it within his lane of travel. The movement of Roberts' vehicle into the oncoming lane represented a breach of this duty, and pointed to negligence unless Roberts could rebut that presumption with his own evidence.

Roberts offered the testimony of Alvin Doyle, an automobile consultant who inspected Robertsís Pontiac after the crash. Doyle testified that the brake "grabbing" sensation Roberts felt just before the accident was due to excessive grease on the left front brake drum, which was the result of improper lubrication of the ball joint. In Doyle's opinion, the "accumulation of grease was so obvious as to merit the attention of any conscientious grease man and to call for replacement as well as removal of the grease deposits."

Roberts' car had recently been serviced by a shop owned by L. L. James, also named a defendant in the suit. To counter Doyle's testimony, James called two expert witnesses, Leo Bickford and George Wilson. Bickford was trained by General Motors and had previously been employed for Pontiac dealers for 16 years were he achieved the position of senior service craftsman. Wilson was an approved automotive appraiser who attended the General Motors Institute in Flint, Michigan and completed a course in collision damages. Each expert testified that, in his opinion, the excess grease that accumulated on a ball joint could not have made its way into the brake drum leading to its malfunction.

After hearing the testimony, the trial court dismissed Davis' claim against Roberts, the driver, but entered a judgment against James, the shop owner, and awarded Davis $4,014.49 in damages. Davis appealed the dismissal of his action against Roberts, and James appealed the judgment.

The Louisiana Court of Appeal found that the "evidence shows the accident occurred because the north bound Roberts automobile invaded the south bound lane, and there collided with the south bound Davis automobile, making out a prima facie case of negligence against Roberts." The court then carefully examined the trial court's analysis of the expert testimony, finding that there was no testimony other than Doyle's to corroborate the presence of grease in the left front brake. It determined that Doyle's testimony was contradicted by Bickford and Wilson and, therefore, since "Davis has proven the accident happened in his lane of traffic and he was in no way negligent, a prima facie case was made out against defendant Roberts." Accordingly, the court concluded that the trial court erred in dismissing Davis' suit against Roberts and in rendering a judgment against James. The court ordered that the judgment of the trial court be reversed and judgment entered in favor of Davis and against Roberts in the amount of $5,514.49; further, the court dismissed Davis' action against James.

The Davis case, though almost 50 years old, illustrates the important role of expert testimony in negligence actions. Although the plaintiff carries the initial burden of establishing his prima facie case where expert testimony is often useful, the defendant's rebuttal can also be enhanced by convincing expert testimony.

When choosing an attorney, it is increasingly important to choose one that has a variety of experts in various fields that it will use to argue your case. By selecting the lawyer with a proven track record and that has experience not only arguing cases but using quality experts, the victim of a car accident can help make sure they do not select for themselves deficient representation.

Continue reading " A 'Battle of the Experts' and the Role of Expert Testimony in a Negligence Action " »

In navigating the complex waters of lawsuits, personal injury cases will often require the use of experts to make it through the waves of unclear facts. An expert is oftentimes a professional (although this is not a requirement) in a given field that can help lend credibility to a plaintiff's (or defendant's) theory in the eyes of a judge or jury. Experts do this by persuasively demonstrating knowledge of the facts and legal issues at hand that support a judgment in favor of one side or the other.

In Bozarth v. State of Louisiana LSU Medical Center, the plaintiff's case hinged partially on whether the trial judge correctly admitted the testimony of the defendant's expert, Dr. Mary Eschete. Bozarth was originally a medical malpractice case in which the plaintiffs sued Louisiana State University Regional Medical Center for

fail[ing] to properly diagnose and treat Mr. Bozarth and for negligently proscribing medications and discharging Mr. Bozarth under the circumstances.

After the trial court had dismissed the plaintiffís case, they appealed, citing that admitting the testimony of Dr. Eschete was in error, since she herself was a former defendant and was the trial judge's childhood friend.

The court cited a Louisiana case from 1999, Pelts & Skins Export v. Department of Wildlife and Fisheries, for the proposition that neither bias of an expert witness, nor

the fact that a witness is a party or an employee of a party precludes a witness from being qualified as an expert.

The court noted that no provision of the Louisiana Code of Evidence supported the disqualification of Dr. Eschete as an expert witness, and that consequently there was no error in allowing her to testify.

When a case reaches the appellate level, or second level, of the state court system in Louisiana, the appellate court reviews most decisions via an "abuse of discretion" standard. This means, for example, that instead of reviewing evidence de novo (meaning "anew" or "from the beginning"), the court will decide whether the trial judge exercised his discretion in an impartial and fair manner on specific elements of the case, such as testimony, evidence, etc.

Typically this standard of review is highly deferential to the trial judge's decision. After all, the trial court judge saw all the evidence firsthand and witnessed the facts and testimony with his or her own eyes. The appellate court in Bozarth, applying this abuse of discretion standard, found that since the decision to admit Dr. Eschete's testimony did not offend any Louisiana law, there could not have been an abuse of discretion.

The testimony of an expert in your case could mean the difference between a successful and failed lawsuit.

Continue reading " The Use of Expert Testimony in Personal Injury Lawsuits " »

On January 22nd a state court jury found in favor of 84 year old Berna Courville in her suit against Robinswood School (on the former Chennault Air Force Base). Ms. Courville's son, 39 year old Tony Courville, had been a resident of the facility that cares for people with severe mental retardation for the past 15 years.

According to the Courville family, they noticed their son coughing on June 5-6, 2005. They notified the facility who they allege did not treat the cough. Courville was taken to the hospital with pneumonia on June 14, 2005. His chest was so full of fluid that his heart and trachea had been shoved over. According to the testimony of pulmonologist Dr. Gary Kohler, 4.5 liters were drained from the right side of his chest. Per medical records, Robinswood allowed Courville to gain 41 pounds in 14 days. He did not recover from the pneumonia and eventually passed away.

Courville's untimely death led his surviving family members to file suit against the facility, alleging they acted improperly and negligently in their care for the man. While Courville's family believed the death was the result of what should have been an obvious illness that medical caregivers would detect under proper conditions, Robinswood alleged in court that this was not the case and that the care the facility provided was proper.

Robinswood houses 120 patients who cannot live on their own because of their disabilities. They are licensed through the state Department of Health and Hospitals. The facility claims no improper conduct on the part of their staff and plans to appeal the ruling.

If a loved one dies because of the negligence of another party or entity their survivors may be entitled to an award in a wrongful death lawsuit. When the elements of a wrongful death claim are proven a variety of damages can be collected. Survivors may be compensated to cover the costs of medical and funeral expenses of the deceased person. They may also be compensated for pain and suffering. In addition, punitive damages, or those intended to punish wrongdoers and prevent them from harming others, may be possible.

If you have lost someone close to you because of the negligent behavior of another party you may be entitled to compensation.

Continue reading " Jury Awards $7.5 Million to Mother of Disabled Lake Charles Man: Death Linked to Negligent Care " »

18-year old Benjamin Guidry of Church Point was killed in a two vehicle crash on February 23rd. The crash occurred on I-10 just west of Rayne. The vehicle Guidry was in crossed the eastbound lanes, went through the median, crossed the westbound lanes, and struck several trees. Guidry was not wearing a seatbelt and the coroner pronounced him dead at the scene. Guidry was a passenger in a 2000 Honda Accord driven by 17-year old Brennen Sonnier, also of Church Point.

According to an article on Southern Louisiana's CrowleyToday.com,

A 1998 Volkswagon driven by thirty-two year old Megan Collum of San Antonio, Texas was traveling in front of Sonnier. Sonnier approached Collum’s vehicle from the rear and struck the right rear corner of her car. After impact, Sonnier ran off of the road to the left and crossed the median, and westbound lanes of traffic. Sonnier’s vehicle struck several large trees on the north side of the interstate. Sonnier sustained moderate injures and was transported to a local area hospital. A second passenger in the vehicle, seventeen-year-old Aaron Richard of Branch, was critically injured in the crash. Collum was not injured in the crash.

This crash is currently under investigation. Toxicology samples were taken from both drivers and results are pending.

In Louisiana, the individual deemed to be at fault for an accident (and their insurance company) is responsible for all damages created by the accident. This includes property damage, the medical expenses of anyone who is injured, lost wages for time spent in recovery, and even compensation for pain and suffering. If someone has been killed in an accident their survivors may pursue a wrongful death claim against the at fault party.

Fault in an automobile accident can be difficult to determine and often requires extensive research and investigation. Typically, if a party acted negligently they will be found at fault. To prove negligence, you must prove that a duty was owed to the person injured, that duty was breached, and that injury was caused by the breach. Causation requires both cause in fact and proximate cause. Cause in fact means that the injury would not have occurred but for the breach of duty. Proximate cause goes even further and requires that the injury was forseeable, given the breach - that is, it naturally resulted from the breach.

Sometimes fault can be divided between multiple parties. For example, in this case the fault for the accident may have been in both drivers if Ms. Collum stopped abruptly and Mr. Sonnier was speeding. In addition, because Mr. Guidry was not wearing a seatbelt he may have shared some fault.

Louisiana is a pure comparative fault state. This means that courts take on the difficult and complicated task of apportioning fault, and then award damages accordingly. An injured parties' damages are reduced according to how much they are determined to have been at fault for the accident. For example, if in this situation Mr. Sonnier (driver#1) brought a claim for his injuries against Ms. Collum (driver #2) and it was found that Sonnier was 20% at fault for the accident he would only be able to collect 80% of the damages because his award would be reduced by 20%.

Even seemingly clear cut auto accident cases can become very complex very quickly. For that reason, if you are injured in an accident it is absolutely vital that you have a thorough, detail-oriented attorney who truly understands this area of the law.

Continue reading " Church Point Teen Killed in 1-10 Crash " »

A search was thrown into motion in mid February to find a missing tugboat, the Lil Au out of Houma. According to Petty Office Kevin Board of the U.S. Coast Guard, and as reported in an article on the Daily World's website,

the 52-foot tug was pushing a 140-foot crane barge south from Jonesville on the Atchafalaya River when it struck the railroad bridge at Krotz Springs about 8 p.m. Thursday night.

Jimmy Darbonne with the St. Landry Parish Sheriff’s Office, which assisted with rescue efforts, said the railroad bridge had opened to let the barge pass but the large crane on the barge struck the bridge anyway.

'That caused the rear of the tugboat to submerge,' Darbonne said. 'It was very cold, very rainy and very dark.'

Luckily, no one onboard was injured. The barge captain was able to swim ashore while the deck hand stayed on the barge and was later rescued by the Krotz Springs Fire Department. Both men were taken to a local hospital and released soon after. The boat is believed to have sunk or may have drifted further down the Atchafalaya River. According to Gary Solieau, director of the Port of Krotz Springs, the river is extremely high (unseasonably so for this time of year) and treacherous right now with very fast currents.

This potentially dangerous situation shows how seaman often put their lives on the line just by going to work. Luckily, they have legal protection. The Jones Act (46 U.S.C. § 30104) formalizes their rights by allowing injured seaman (or their survivors if a seaman has been killed) to obtain damages from their employers if their employers, shipowners, captains, or fellow crew members, are deemed to have been negligent The rights afforded by the Jones Act go beyond those provided by common international maritime law because they allow injured parties to bring claims in state or federal court and entitle them to a jury trial.

Not just anyone who works on a boat is considered a seaman with the right to bring a Jones Act claim, however. The Supreme Court in the 1995 case of Chandris, Inc. v. Lastis ( 515 U.S. 347 (1995)) found that workers who spend less than 30 percent of their time in the service of a vessel on navigable waters are presumed not to be seaman with Jones Act protection.

Continue reading " Tugboat Believed to Have Sunk Near Krotz Springs " »

U.S. District Judge Eldon Fallon will soon issue a decision in the first federal Chinese drywall case. His judgment will greatly impact the continuing recovery for homeowners across the nation. The case, brought by seven Virginia homeowners against Taishan Gypsum Co., alleges damages resultant from poorly manufactured and corrosive Chinese drywall. At stake is more than $2.5 million in damages. Hundreds of subsequent lawsuits concerning Chinese drywall hang in the balance.

Prior to 2005, very little drywall was imported from China. After the devastation to the southeastern United States by hurricanes in 2004 and 2005, massive reconstruction efforts depleted the supply of domestically produced drywall. In order to accomplish the rebuilding efforts, it became necessary to import Chinese drywall. Since 2006, more than 550 million pounds of Chinese manufactured drywall have been imported and installed in approximately 60,000 homes in a number of different states.

The U.S. Consumer Product Safety Commission (CPSC), as well as the U.S. Environmental Protection Agency (EPA), has received thousands of formal complaints from citizens alleging that Chinese drywall leeched noxious substances into homes and offices. The chemicals are linked by some to be causing health problems and corrosion to metals inside walls and appliances. These complaints prompted the EPA to launch an investigation. Last spring, EPA labrotory testing confirmed that sulfur, strontium, and iron were present in samples of Chinese manufactured drywall. The tests also revealed that drywall manufactured in the United States contained no sulfur, and significantly decreased levels of strontium and iron.

The most recent development in the federal case is the expert testimony of Ron E. Wright, P.E., the chief operating officer for Buric. Mr. Wright is an expert in building diagnostics, with over 30 years of experience. He specializes in analyzing why buildings fail to hold up, determining the construction or design deficiencies that contributed to the failure, assessing the damages that have occurred, and establishing the remedies necessary to correct and repair them. In his testimony, Mr. Wright summarized the problems caused by the defective Chinese drywall and what measures were required to address the problems. He also assessed the costs for the necessary reparations to the homeowners' residences. His testimony could prove crucial to whether the plaintiffs receive the money they are seeking in damages.

Also of interest is the fact that the defendant manufacturing company has refused to answer the lawsuit. Taishan Gypsum Co. has failed to respond to any of the allegations and did not show up to the trial in front of Judge Fallon last week. If a ruling is made against the company, the plaintiffs could be given the right to seize any assets of Taishan Gypsum that touch US soil, which may include ships as well as any cargo they may be carrying.

Continue reading " Louisiana Residents Anxiously Await Ruling in Federal Chinese Drywall Case " »

The Crowley Today reports that a man has filed suit against a Arcadia Parish Sheriff's Deputy, the Crowley Police Department, and the City after an incident that occurred less than one year ago on July 16, 2009.

The suit concerns Reginald Phillips, an Arcadia man who merely wanted to return to his estranged wife's residence to retrieve his belongings. Fearing his estranged wife might resort to violence during this visit, Mr. Phillips requested Crowley Police escort him on his trip. Mr. Phillips alleges that while inside her residence, the officers left him and his wife alone. It was at this point that Kimberly Phillips allegedly shot Mr. Phillips several times, resulting in severe injuries including permanent paralysis below the waist.

Mr. Phillips alleges in his claim general negligence against the officers and the Police Department. Case history in Louisiana has shown that prevailing on a statutory negligence claim under Louisiana Civil Code Articles 2315 and 2316, plaintiffs are required to allege five elements: (1) the defendant had a duty owed to the plaintiff to exhibit a specific minimum level of conduct; (2) the defendant breached his duty to live up to this standard; (3) the defendant's conduct actually caused the plaintiff's injuries; (4) the defendant's conduct could in some way serve as the legal basis
for the plaintiff's injuries; and (5) the plaintiff must provide evidence of actual damages suffered. For a recent case concerning these elements, please refer to Tyson v. King (a motor vehicle accident case) here.

The first element of a negligence claim requires a showing that the defendant actually owed a legal duty to the plaintiff. For example, in a given case a court may find that a police department has a duty to ensure that its deputies are adequately trained in the use of attack dogs. Whether a duty of care exists toward the plaintiff will typically be either a statutory or case-law based determination.

Once a duty is determined to exist, the court will resolve whether the defendant's conduct actually breached that duty. That is to say, the court looks into whether the defendant failed to live up to the standard of care required by law.

Assuming the facts as Mr. Phillips provides them (the defendant Police Department will surely have their own version) are accurate, a court will then determine whether the officer's absence was the cause of Mr. Phillips injuries. The go-to test for this is the "but for" or cause-in-fact test. For example, to meet this element a plaintiff will have to prove that "but for [the act of alleged negligence]" the accident would not have happened. Given Phillips would have been unlikely to go to the home without a police escort, his attorneys will claim that the police's failure to monitor the situation closely "caused" the unfortunate incident.

The cause-in-fact test is not to be confused with the fourth element necessitating proof of legal causation. This fourth element requires that the plaintiff be granted protection under the law from the defendant's breach of duty. That is to say, the defendant must be subject to legal liability under some law or statute for his or her substandard conduct.

Finally, the damages element is more straightforward, requiring the plaintiff to allege actual damages as opposed to speculative damages.

This step by step analysis in a general negligence case can become cumbersome. General negligence cases are typically fact intensive cases, with either the judge or jury ultimately deciding, based on all the facts and circumstances, whether each
of the required elements are met.

Continue reading " Arcadia Perish Man Shot by Estranged Wife Brings Suit Against Police Department " »

The family of 50 year old Adrian Flores, Sr. will collect $10 million in damages according to the recent ruling of a Texas District Court. A crane operator, Flores was crushed to death while working for Gulf Marine Fabricators. Gulf Marine Fabricators is a subsidiary of Houma based Gulf Island Fabrication, a company that builds structures in the oil and gas and marine industries.

As noted in an article on Homatoday.com,

On the day he died, Flores and three other crane operators were tasked with lifting a 1,200-ton piece of offshore platform, according to court papers. As they worked, a boom on Flores’ crane loosened, throwing the load off balance and onto the cab.

During the trial, evidence was presented that six to nine cranes should have been used for the project, that the company did not devise an adequate "lift plan," and that Flores was not made aware of the potential danger. According to trial testimony, Flores had worked for at the same job site for 10 years and was considered one of the most skilled crane operators.

Flores' wife and six children will receive the money, which was slightly less than the jury award of $11.1 million, as compensation for the death and for their pain and suffering. In a wrongful death lawsuit, the survivors of someone who has died may be awarded compensation to cover the costs of medical and funeral expenses, lost wages, and for their pain and suffering. However, an employer is not always presumed liable if one of their employees becomes injured or dies while at work.

In order to be liable in a wrongful death claim, the defendant must be found to have acted negligently. This means that the defendant owed a duty to the injured party, breached that duty, and that the death forseeably resulted from the breach. In an employer/employee relationship an employer has a duty to take reasonable measures to those in his employ safe. As in this case, if an employer does not take adequate safety precautions he may be liable for the wrongful death.

If you have been injured or someone you love was killed in a workplace accident you may be entitled to collect compensation for the tragedy that has befallen you.

Continue reading " Houma Company to Pay $10 Million in Wrongful Death Lawsuit " »

86 year old Margie Davis of Columbia was shopping in the West Monroe Wal-Mart store during Thanksgiving week when she was tragically killed. A shelf full of holiday towels fell on Ms. Davis and she died a day later from her injuries. In responding to the Davis family's lawsuit against Wal-Mart, the retail giant has indicated in court documents that they are not responsible.

As noted in an article on myarklamiss.com,

Wal-Mart attorney Michael Adams declines comment but in a response to the lawsuit he denies everything except that Davis entered the West Monroe store. One part even blames Davis saying quote'... allegations which defendants deny were proximately caused by negligence and fault of plaintiff or plaintiff’s mother, Margie Davis,' said Adams’ (Wal-Mart) plea filed in federal court.

He also blames customers for possibly causing the accidental death.

According to her family, Ms. Davis walked into Wal-mart happy and healthy. According to the coroner's office, she left the hospital the next day, having passed away from massive head and chest injuries.

While Wal-mart's liability will be decided in court, Ms. Davis' family deserves their right to pursue a legal remedy. If a loved dies and the death was the fault of another person or entity, the party responsible for the death may be liable for a variety of damages. Such damages can include medical expenses, lost wages, (necessary for example, if the deceased was the primary breadwinner for a family) and compensation for pain and suffering. Damages may even include punitive damages meant to punish the party at fault.

Wrongful death damages that are available can depend on the relationship of the survivors to the person who has died. Parents may get damages for lost companionship if a child has died, for example. Damages for a spouse may include financial contributions the deceased would have made.

Typically in a wrongful death lawsuit the plaintiff must prove that their loved one would not have died without the action or inaction (neglect) of the defendant. Here, even if Wal-mart is found not liable, another entity may be responsible for damages. If the shelf that fell on Ms. Davis was defective, the company that produced, distributed, or otherwise came into contact with the shelf may be liable. When someone has been injured or killed because of a dangerous or defective product the case becomes one of products liability.

There are typically three types of products liability cases: manufacturing defect, design defect, and failure to wan. Manufacturing defects occur during the manufacturing process and typically involve poor materials or workmanship. Design defects occur when the product design is inherently dangerous. Failure to warn problems involve products that have inherent, non-obvious dangers. Each different type of products liability requires different elements of proof.

If you suspect that you have been injured or the death of a loved one was the fault of another person-due to a defective product or otherwise, it is important that you have an attorney on your side willing to work through all of the issues and provide you with the greatest chances of success in your claim.

Continue reading " Wal-Mart Claims They Were No Responsibility for Columbia Woman's Death " »

According to an article on the townwalk.com, 28 year old Deborah Parker of Elizabeth was killed in a single vehicle accident on the morning of February 18th. According to state police, the crash occurred at the Rapides-Allen parish line at about 7:30 in the morning. Jason B. Mancil, driving a 2004 PT Cruiser, lost control of his vehicle and ran off the left side of the road, hitting a tree. Both Mancil and his passenger, Parker, were not wearing seatbelts. Mancil suffered only minor injuries while Parker was pronounced dead after being taken to Oakdale Hospital. The case is still under investigation, but Mancil has been cited for careless operation.

A situation like this one where a passenger has been killed in a one vehicle automobile accident can create difficult legal issues due to the relationship between the parties (and their survivors).

Under Louisiana law, the person at fault for an auto accident, and their insurance company, is responsible the damages caused by the accident. A party not responsible should not suffer at all financially because of the accident. In addition, if someone has been killed due to another party's negligent behavior, their survivors may pursue a wrongful death lawsuit. To prove negligence the defendant must have owed a duty to the plaintiff, breached the duty, and the damage (in this case, death) must have naturally and forseeably resulted from the breach.

The situation is complicated even more if the injured party is found to have contributed to their own injury, as may be a possibility here. Because Ms. Parker was not wearing her seatbelt, a court of law may hold that she carried out actions that sufficiently led to her own injury. Louisiana is a pure comparative negligence state. This means that the damages each party can collect are reduced by their contribution to fault. For example, if someone is deemed to be fifty percent at fault for an accident, they will only be able to recover a damage award covering fifty percent of the damages (100 percent minus a 50 percent reduction).

Issues created in both car accident and wrongful death cases can be complex and confusing. Having an experienced attorney to protect your interests is essential.

Continue reading " Elizabeth Woman Killed in Single Vehicle Accident, Creating Difficult Legal Issues " »

In the morning hours of February 10th, a big rig trying to make a U-turn outside of Emmerson's Food Mart on State Highway 57 caused a potentially dangerous oil spill. The 18-wheeler snagged the awning above the gas pumps, knocking one over. The overall damage caused by this mere snag is staggering. Approximately 150 gallons of diesel fuel spilled out onto the parking lot and ditch area of the gas station. Almost 30 gallons of super unleaded gasoline also spilled from the pumps.

Haz-mat crews spent the morning cleaning up the mess. Although no drinking water was contaminated and no roads were obstructed, the gasoline traveled downhill into a drainage ditch and small fish were killed.

Unfortunately the driver did not stop after the accident but continued onto the highway. As reported by the Shreveport Times on their website:

Surveillance video gave detectives a clear view of the truck involved. It had a red cab with a white box trailer with the words "MegaTrux" on the side. The rig sustained damage to its driver’s side, the video showed. based on that, deputies contacted the company that owns the rig to track it down. The truck was located just outside of Birmingham, Ala., and should be returned to the area later today for crime scene analysis and the arrest of the driver, whose name has not yet been released.

The Hazardous Material and Explosives Control Unit (Haz Mat) of Louisiana is required by law to respond to and investigate all chemical emergencies that occur in the state. Even though no one was injured in this spill, the fact that Haz Mat was involved shows that it could have been a very dangerous situation. Chemicals like diesel fuel and unleaded gasoline can harm land, animal life, and people. The effects of exposure to some chemicals may not surface for years.

Should claimants come forward, a variety of defendants may be named as responsible for whatever harm was caused by this spill. These can include, but would not be limited to, the owner of the truck, the trucking line (should they be merely the licensed company hiring truckers), the driver himself and others. If the awning was sagging or was a known issue to the owner of the station, they may also be named though it is unclear if this is a factor in the case.

If a chemical substance has made you sick you may have a claim for damages.

Continue reading " Haz-Mat Spill in Bossier Parish Posed Dangerous Situation " »

As reported in the St. Charles Herald Guide in August 2009, two separate plane crashes occurred less than 24 hours apart. Both happened on private air strips, involved experienced pilots, and occurred while the planes were still on the ground.

The first crash was on August 23rd. James F. Miller was undergoing pilot re-certification at St. Charles Parish airport in Ama. Miller and Air Force Lieutenant Colonel Wendell Lee Collins were on board when the plane veered left in takeoff, struck a tree, and was engulfed in flames. Both men were killed.

The other accident was the following afternoon in Taft when the plane of Lucien Taft Triche flipped over as he taxied down a private runway. Triche had been working on his plane and was taking it out for a test run. When the plane flipped Triche rolled out and was trapped under the wing. He was taken to the hospital with broken bones.

Accidents such as these raise questions about what might have caused such disaster. Sometimes defective or improperly installed products can malfunction, and tragedy may result. When someone is injured or killed due to a defective product, the company that manufactured the product may be liable for damages such as medical expenses, lost wages, or pain and suffering.

There are three major types of products liability cases. The first, manufacturing defects, deals with the product imperfection that occur in the manufacturing process; typically due to poor quality materials or workmanship. The second, design defects, occur when a product’s design is inherently dangerous. The third, failure to warn, or marketing defects, occur when a company does not adequately warn users that its products may carry non-obvious dangers.

Others beyond the actual manufacturer of a product may also be liable in a products liability case. Distributors, repairers, assemblers, suppliers, and anyone else that may have come in contact with the product before it reached the injured party bringing may be found liable. While these cases can be based on a variety of legal theories, (negligence, strict liability, or breach of warranty) in every situation it must be proven that the product was actually defective in order for a claim to be successful. This can be very difficult.

The intricacies of products liability law are complex and nuanced.

Continue reading " Two St. Charles Parish Planes Crash in 24 Hours: Could Airplane Parts be to Blame? " »

The son of a woman who died in her Bastrop apartment last September has filed a civil lawsuit seeking "damages for the fear, pain and ultimate death of his mother and the grief and mental anguish he experienced from her death," according to reports from the Monroe News-Star.

The victim, Merrimac Ellis, died from injuries she suffered in the fire while she was trapped in her power wheelchair. The petition claims that the management of her apartment in the complex for seniors negligently failed to resolve "unreasonably dangerous conditions" that were the cause of Ellis' death. In addition to seeking damages from the Bond House apartment complex and its insurance underwriter, Ellis' son is also seeking to recover from the manufacturer of her power wheelchair and the companies maintaining the fire alarm and sprinkler systems at the complex.

The petition asserts that Delta Fire Protection Systems Inc. failed to "maintain sprinkler heads" and that Vantronics Security System of Monroe, Inc. failed to "maintain an audible alarm." Neither the sprinkler system nor the fire alarm properly responded to the fire that claimed the victim's life.

The investigation of the State Fire Marshall's office determined that the fire responsible for Ellis' death started under her power wheelchair's seat. Allegations in the petition also state that Invacare Corp., the manufacturer of Ellis' wheelchair, has previously issued recalls over wheelchairs that have caused fire related deaths.

State Fire Marshal investigators concluded that the sprinkler in Ellis' apartment did not have problems, but the office does "have concerns about the sprinkler system throughout the building." The office reported that the owners of the apartment complex will be installing a new system. The Fire Marshals also expect the owners to issue a warning to residents and evaluate the building's evacuation plan.

While a multitude of legal issues exist in this matter including product defect, negligence, duty of care and others, it is impossible to assert how the court will rule. Only through the careful analysis of an attorney can an everyday individual who has been hit by tragedy understand their legal rights and what compensation they may be owed due to the action, or lack thereof, of other people.

Continue reading " Bastrop Fire Death Leads to Lawsuit " »

As reported by the Advocate and WBRZ News Louisiana, police now have a suspect in the hit and run that killed 20 year old Mikel Carson on January 31st. According to an arrest warrant, Christian J. Cvitanovich of Melairie is wanted for striking down Carson with his 2005 Ford Expedition. At the time, Carson was walking down 1-10 to check on a woman involved in an unrelated vehicle crash.

According to the article,

Investigators with the Police Department’s Traffic Homicide Unit were told on Feb. 4 that the Expedition had been taken to a Metairie body shop... with the assistance of the Jefferson Parish Sheriff’s Office, the vehicle was impounded that afternoon and returned to Baton Rouge for further examination.

Mr. Cvitanovich may face more than just criminal charges as a result of the incident. Mr. Carson's family may also be able to collect damages in a wrongful death lawsuit. A wrongful death claim can be brought if a victim is killed as a result of the negligence or other improper conduct of another person or entity. Although the deceased person will not be able to benefit from the claim, their survivors can receive compensation.

Generally, for a successful wrongful death claim, three elements of proof for a successful claim must be proven: 1) the victim's death was caused by the a wrongful act of the defendant, 2) there is a surviving spouse, children, or beneficiaries to collect on the claim, and 3) the victim's death resulted in monetary damages.

Continue reading " Baton Rouge Hit and Run accident may lead to further court action " »

Recently, in Lafayette, Louisiana, The Advocate reports that “local bars . . . allegedly sold alcohol to [two] underage drinkers, both of whom later died in separate and unrelated incidents.” An obvious tragedy, the matter serves as a stunning reminder that liability for businesses goes beyond what happens on their property. When a bar serves alcohol to a minor, it can be held legally liable for the ensuing injuries and harm to the minor.

If a bar —or any other liquor retailer— serves alcohol to a minor, determining whether the bar is liable for the minor’s ensuing harm is a difficult and tricky process. This article is intended as an introductory guide to help you better understand your legal rights and whether you should seek legal representation.

A bar has a duty to not serve alcohol to minors. If the bar negligently breaches that duty, it will be held liable for the harm caused to the minor when it is both (1) a cause-in-fact and (2) a legal cause of the underage drinker’s resulting harm.

The Supreme Court of Louisiana case of Berg v. Zummo is the legal authority on a bar’s liability for serving alcohol to minors. According to Berg, a bar negligently breaches its duty to not serve minors alcohol when it “fails to exercise the care of a reasonable person under the circumstances.”

Determining what is and isn’t a reasonable effort of a bar's efforts in preventing minors from purchasing or consuming alcohol on the premises depends on the specific facts of the situation. As a general guide, if a bar doesn’t check the minor’s identification when he or she enters the bar or when he or she purchased the alcohol, the bar likely breached its duty.

The issue of the purchase or consumption leading to the event is called "cause-in-fact." Cause-in-fact basically means that if the bar had not served alcohol to the minor, the minor would not have been harmed. As recognized in Berg, a cause-in-fact need only be “a substantial factor in bringing about that harm.” Thus, the bar’s service of alcohol does not need to be the only cause-in-fact of the minor’s harm.

The following is an example illustrating cause-in-fact. For the following two situations, assume a bar breached its duty and served alcohol to a minor. If the minor then gets in a car accident solely because he is intoxicated, the bar’s conduct is a cause-in-fact. If the minor gets in a car accident solely because he is a horrible driver and the accident would have happened if he didn’t drink, the bar’s service of alcohol is not a cause-in-fact.

A bar’s service of alcohol to a minor is a legal cause of the minor’s harm when the risk of that harm occurring was within the bar’s scope of duty. Basically, legal cause means that the minor’s harm must be sufficiently connected to the bar’s service of alcohol to the minor.

For example, in Berg, the court stated that “the risk that a minor who is served alcohol might become intoxicated and get into a fight and injure someone with his car is clearly within [the bar’s] scope of duty” to not serve alcohol to a minor and, thus, is a legal cause of the minor’s harm. However, the risk that a minor who is served alcohol might be struck by lightning on the walk home from the bar is probably not within the bar’s scope of duty and is not a legal cause.

Continue reading " Understanding the law: A bar’s liability for serving minors alcohol " »

As reported in an article on nwlanews.com, Randy Campbell of Doyline is in stable condition at Louisiana State University Medical Center after surviving an automobile accident on I-20 near U.S. Hwy 532. The accident occurred early in the morning of February 9th. According to an eyewitness account, Campbell was headed eastbound when an 18-wheeler allegedly ran him off the road, causing him to come to a stop in a ditch facing the other direction.

Rescue teams were dispatched to the scene, and Campbell had to be cut out of his 2008 Ford Pickup. Police are on the lookout, but have not yet located the rig responsible for the accident.

In a situation like this one, who will pay for the damages created?

Under Louisiana law, the party found at fault for causing an accident is financially responsible for all of the damages. This can include medical expenses for anyone who has been injured, lost wages for time the injured person is not able to work, possible compensation for pain and suffering, and in some cases even punitive damages meant to punish the party at fault. If the injured party later dies their survivors may even pursue a wrongful death claim. However, the situation is slightly different when it is a hit and run.

First, police should do all they can to find the at fault driver. Here, the article indicates that there were witnesses to the accident. If an eyewitness or Mr. Campbell was able to get the license plate number on the truck, the driver may be able to be tracked down by law enforcement who can search police records or the Louisiana Office of Motor Vehicles.

If the party at fault cannot be located, however, the injured driver's insurance company would be the only party from which to collect damages. The amount of damages that can be collected in a hit and run situation depends on the type of insurance policy the driver has.

Louisiana law requires that individuals purchase uninsured/underinsured motorist coverage for these types of situations. A hit and run driver is considered "uninsured" as long as there was a disinterested witness to the accident (for example, someone who was not in the car at the time). A person buying insurance in Louisiana is presumed to have also bought this coverage because, under state law, individuals must sign a form indicating they have rejected uninsured/underinsured coverage in order to not buy it.

Uninsured/underinsured coverage should pay the medical expenses for any bodily injury you or an occupant of your vehicle suffers due to an accident caused by another driver who is deemed uninsured or underinsured. Uninsured/underinsured motorist coverage may also cover property damage to your vehicle depending on the policy type.

Even if you have uninsured/underinsured motorist coverage, insurance companies are often looking out for their own bottom line, and may be hesitant to pay you everything you are entitled to under your policy. If you have been the victim of a hit and run it is crucial that you have an attorney on your side to ensure your needs are met.

Hello and welcome to the Berniard Law Firm's Personal Injury blog. A project that looks to educate the public on their legal rights using both news analysis and law clarification, this blog is intended to be a helpful resource for both professionals and every day readers interested in learning about the law.

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