Louisiana Personal Injury Lawyer Blog

Maritime law has been around for a long time. Ever since boats have been used to move goods there has been a need for laws governing their transport. Because of its long history, maritime law is very complex and involves a lot of international, federal, and state laws. The first official U.S. maritime law was the Judiciary Act of 1789 that put jurisdiction over this area of law within federal courts.

The Jones Act, or Section 27 of the Merchant Marine Act, passed in 1920 is another very important piece of Maritime law. This law officially codifies the rights of seaman. The latest version of this law passed Congress in 2006. Under the Jones Act seaman can bring lawsuits against their employers in either state or federal court and are entitled to a jury trial. Many find protection in federal courts to be more advantageous, however. Unlike international maritime law, the Jones Act gives seaman the right to pursue legal claims against ship owners based on negligence or unseaworthiness. The Act applies to employees who spend at least 30% of their time on a navigable vessel (although this requirement has been interpreted very broadly by courts). There is a three year statute of limitations for claims filed under the Jones Act. This means that if a claim is not filed within three years of when the injury occurred, it will be time barred.

With Louisiana’s long coastline, multiple ports, channels, waterways, and rivers, the Jones Act becomes very important. Shipping is a big industry here and recreational boating activities play a major role in the economy. Anyone who spends more than 30% of their work time onboard a vessel may be entitled to compensation under this law. This goes beyond what one might traditionally think of as "seaman" and includes inland river workers or anyone who spends significant time on floating or moving structures. Even certain onshore oil industry employees can be covered if they spend significant time on the back deck of a boat loading and unloading supplies. If an employee is killed while working their survivors may be entitled to compensation under the Act as well.

Compensation under the Jones Act can be a complicated matter and may be very dependent on the facts of the case. First, a seaman may receive what is called maintenance and cure. Maintenance and cure can be recovered for an injury or illness that occurred while a seaman was under a service contract of a ship whether or not the injury was actually sustained on the ship. Maintenance is the cost of room and board the seaman would have gotten on the vessel if he was not injured and begins the day the injured person left the vessel. Cure refers to medical expenses incurred as a result of the injury or illness. Second, individuals may be able to recover lost wages, or money they would have earned if they had not been injured. Finally, damages to compensate the seaman for his pain and suffering can be collected.

If you or someone your love was injured while working on some type of vessel you may be entitled to recover under the Jones Act. Your success will require excellent legal representation and an attorney who understands the intricacies of the law and is willing to conduct an intense factual investigation.

Continue reading " An Overview of Louisiana Maritime Law " »

In the predawn hours of an October 21, 1995, election day, Elizabeth Cazes arrived at a polling place on Antonio Road in West Baton Rouge where she was scheduled to work as election commissioner. She entered the building using a set of concrete steps at the front entrance of the building that were dimly lit by a single light bulb at approximately 5:20 a.m.

About a half hour later, Ms. Cazes came back outside to post an election sign. As she descended down the stairs, Cazes slipped and fell when she placed her foot on a cracked off portion of the bottom step. Cazes broke her fall with her right hand causing a severe fracture to her right wrist which required multiple surgeries and an external fixation device to be applied to her arm. Ms. Cazes filed suit against the Parish of West Baton Rouge (the "Parish) and the West Baton Rouge Parish Council (the "Council"), who were identified as the owners of the polling place. Cazes alleged that the stairs were defective and that the Parish and Council were strictly liable for her injuries. The trial court found for Cazes, and the Parish and Council appealed.

In an effort to make the voting process as pleasant as possible for all Louisiana citizens, state law requires that the owner of a polling place provide a "reasonably safe place for all voters and election commissioners expected to frequent the premises." Burgess v. City of Shreveport, 471 So.2d 690, 693 (La. 1985). A polling place owner who allows his facility to fall into disrepair risks a legal claim from in injured voter under a theory of strict liability. Under this theory, an injured plaintiff is required to show: (1) the property which caused the injury was under the control of the defendant; (2) the property's condition created an unreasonable risk of harm to persons on the premises; and (3) the defect in the property was a cause of the injury. See Oster v. Dept. of Transp. & Development, 582 So. 2d 1285 (La. 1991). When the polling place owner is the government, Louisiana law further requires the plaintiff to prove that the owner knew or should have known of the defect, and that it had a reasonable amount of time to repair the problem but did not do so. La. R.S. 9:2800.

Under the theory of premises liability, codified in Louisiana civil code articles 2317 and 2322, a person in possession of land or premises can be found responsible for certain injuries suffered by a person on their land or premises. In general, a land or premises owner has a duty to provide a reasonably safe place for its occupants. If an owner, with knowledge of a dangerous condition, does not take reasonable steps to repair the condition, the owner will be found liable if the dangerous condition causes injury to a person lawfully on the premises.

In this case, a Louisiana statute provides immunity from liability for the owners of a premise while it is being used as a polling place on an election day. However, the statute did not apply in this case because Cazes’ situation fell under the statute’s exception for strict liability cases, such as premises liability. Strict liability allows liability without proving fault or intent.

Based on Cazes’ doctor’s testimony, the trial court held and the appellate court agreed that Cazes’ fall on her right hand was caused by an “unreasonably dangerous condition created by the defendants” and that her fractured wrist was a result of the fall. In these sort of matters, a plaintiff must also prove that the defendant knew or should have known of the defect that caused the injury and had a reasonable amount of time to remedy the defect but did not do so. An owner should have known of the condition if the owner had constructive notice. Constructive notice exists if the defective condition had existed for such a period of time that it should have been discovered and repaired if the public body had exercised reasonable care.

The trial court reasoned, and the appellate court agreed, that since an employee had broken the step while mowing the lawn, the defendant had “constructive knowledge” of the broken step. Additionally, since the step had been broken for several months, the court also found the defendant “failed to take reasonable steps to correct the condition.” Therefore, because the steps in question were in the land owner’s control, the broken steps, coupled with the absence of handrails, presented an unreasonable risk of harm to Cazes. Further, the defective condition of the step caused her injuries, and the land owner had constructive notice of the defective condition. As a result, the Parish of West Baton Rouge and the West Baton Rouge Parish Council are liable for Cazes’ injuries.

Still, under Louisiana law, when a party’s injury is partly the result of his or her own negligence and partly the fault of another person or persons’ negligence, the amount of recoverable damages shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury. According to Louisiana case law the court takes a number of factors into account when apportioning liability: (1) whether conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Based on the previous factors, the trial court concluded and the appellate court agreed that Cazes was five percent at fault for her injury because of her inadvertent behavior of failing to look down as she descended down the steps. The court also reasoned that the land owner had the superior capacity to avoid the danger created by the steps. The land owners could have repaired them or closed off the entrance. Therefore, Cazes recovered 95 percent of the damages calculated by the trial court.

In examining the elements of Cazes's strict liability claim, the Louisiana Supreme Court found that there was no dispute at trial over the ownership and control of the polling place. On the question of whether the condition of the step created an unreasonable risk of harm, the Court noted that it is required to give deference to the trial court's finding. Furthermore, the Court noted that

The evidence is uncontradicted that on election day, the bottom step at the main entrance of the polling place was broken with part of the concrete step missing. The steps were unquestionably expected to be used by the general public on that day. ... We find no manifest error in the trial court's conclusion that the missing part of the step ... along with the absence of handrails, presented an unreasonable risk of harm to Mrs. Cazes."

On the fourth element, the Court reviewed that under Louisiana law a public entity must have notice of a defect in order to be responsible for damage resulting from it. The Court explained that notice can be "drawn from facts demonstrating that the defective condition had existed for such a period of time that it should have been discovered and repaired if the public body had exercised reasonable care." At trial, Cazes's husband testified that the step had been broken for several months prior to the accident. Mr. Cazes was aware of the problem with the step because he regularly walked on the road in front of the building. His testimony affirmed several facts that were essential to the case, especially that he had been informed by a Parish employee that the step had been broken by a lawnmower that the Parish used to cut the grass. Based on Mr. Cazes' testimony and the fact that the condition of the step had been caused by the Parish's own employee, the Court upheld the trial court's finding that "the defendants, by the exercise of ordinary care and diligence, must have known of its existence in general and could have guarded the plaintiff from injury."

Although the Cazes case involves a polling place, the essential duty to maintain a safe premises applies to all property owners in Louisiana. The failure to make needed repairs--especially when a defect should be discovered by the owner--is a "lawsuit waiting to happen" if a visitor is injured by the defect. Premises liability is a complex issue. In summary, a land or premises owner has a duty to provide a reasonably safe place for its occupants. If the owner knows or should have known of a dangerous condition and failed to take reasonable steps to repair it and the dangerous condition causes an injury, the owner is strictly liable for the injury. Finally, if the injured party is partially at fault, his or her damages may be reduced by the percentage that the fact finder decides he is at fault.

The oil spill that occurred as a result of the explosion on the oil rig Deepwater Horizon is enormous. As oil continues to spew into the Gulf of Mexico and near the Louisiana coastline, estimates have begun that place the size of the spill at a stunning proportion.

According to the Associated Press,

A graphic posted by authorities fighting the slick shows it covering an area about 100 miles long and 45 miles across at its widest point.

And, thanks to NASA, the spill can be seen from space. As of the 27th, news reports had the spill at "48 miles long and 39 miles wide." Given that reports today have more than doubled that slick's length, it's appropriate for many to be concerned.

To put this slick's size into perspective (100 miles long and 45 miles across), consider the following:

Rhode Island is 37 miles wide and 48 miles long. This would mean the conservative numbers of 48x39 used yesterday to describe the slick would place the oil disaster as the size of the smallest state in America.

The state of Vermont is approximately 161 miles long and 80 miles wide.

Massachusetts is 183 miles wide and 113 miles long.

Connecticut has a length of 110 miles and a width of 70 miles. The oil spill, as reported today, would be roughly half the size of the state of Connecticut, a state that has a population of 3,501,252.

It's terrifying for many whose livelihood is based on industries that require a healthy Gulf Coast that a slick half the size of Connecticut could be nearing this country's biggest river mouth. Only time will tell what the ramifications will be of this disaster but information will be posted on this blog as it becomes available.

For those Louisiana residents, whether they live in Baton Rouge, Lafayette, New Orleans, Mandeville, Lake Charles, Shreveport or Alexandria, that have questions dealing with Chinese Drywall, feel free to look at our Chinese drywall information section. This blog section focuses on the timeline of this toxic wallboard in America. Whether featuring Chinese drywall symptoms or Chinese drywall lawsuits, our posts hopefully will help people both in Louisiana and a variety of Gulf Coast states like Texas, Mississippi and Florida better understand this complex issue.

If you have any questions on the complex legal issues that exist with this matter, including "How do I know if I have Chinese drywall?" or "How to Identify Chinese drywall in your home?" feel free to contact our firm. It is important to take action as soon as possible in order to secure your legal rights. Click here to contact us today.

In an effort to prevent the oil leaking from the Deepwater Horizon oil rig in the Gulf of Mexico from reaching the Louisiana shoreline, crews are discussing burning the slick. In a complicated process intended to keep the oil from reaching the sensitive marsh coastline, officials are discussing an idea that would shift the oil to a safer location where it would then be ignited in some way and allowed to burn.

The Associated Press reports

A 500-foot boom will be used to corral several thousand gallons of the thickest oil on the surface, which will then be towed to a more remote area, set on fire, and allowed to burn for about an hour, the Coast Guard said. Such burns will continue throughout the day if they are working.

It was unclear what would be used to set the oil on fire and how far from shore it would burn. The slick was about 20 miles east of the mouth of the Mississippi River.
About 42,000 gallons of oil a day are leaking into the Gulf from the blown-out well where the Deepwater Horizon exploded and sank last week. Eleven workers are missing and presumed dead. The cause of the explosion has not been determined.

Greg Pollock, head of the oil spill division of the Texas General Land Office, which is providing equipment for crews in the Gulf, said he is not aware of a similar burn ever being done off the U.S. coast. The last time crews with his agency used fire booms to burn oil was a 1995 spill on the San Jacinto River.

Preventing the oil from reaching the coast is inherently important because of the delicate ecosystem that exists along Louisiana's Gulf shore. As the article mentions, the oil is only twenty miles from the mouth of the Mississippi River and should that toxic material become integrated with the plant and wildlife that thrive in that area the results could be catastrophic.

The burn, on the other hand, appears to be a much safer option, according to Pollock

"I would say there is little threat to the environment because it won't coat an animal, and because all the volatiles have been consumed if it gets on a shore it can be simply picked up," he said.

Authorities also said they expect no impact on sea turtles and marine mammals in the burn area.

A graphic posted by authorities fighting the slick shows it covering an area about 100 miles long and 45 miles across at its widest point.

What happens if this burn does not work is unclear but the potential harm it could cause local fisherman and businesses that operate within a clean, healthy environment is serious. The relief well that is being worked on could take months to complete while oil continues to spew into the Gulf and increasingly endanger the Gulf Coast states.

We will continue to monitor this issue and post news as it becomes available.

As reported by WBRZ News 2 Louisiana, 17 year old Ramie Martinez of Greenwell Springs was killed in a recent two vehicle crash in Denham Springs. The tragic accident happened on Lockhart Road near Cockerham Road. According to state police, Cherish D. McConn, 26, was impaired and driving east when she crossed the center line and her 2000 Chevy Cavalier struck the side of a 1994 GMC truck. The two people in the truck had minor injuries but were not hospitalized.

Ramie and one other passenger was in the car with McConn. The other passenger received minor injuries and was transported to the hospital. Ramie was pronounced dead at the scene and later identified. McConn was also injured and hospitalized. She will be arrested for reckless operation, negligent injury, Driving While Intoxicated (DWI), and vehicular homicide once she is released.

McConn will likely have more to deal with than criminal charges in the aftermath of this terrible tragedy. The family of Ramie Martinez may be entitled to collect compensation against McConn in a civil action as well since she was at fault for the accident that killed their daughter. Through a wrongful death claim, survivors can recover the cost of medical expenses, funeral expenses, lost wages or benefits, or even compensation for pain and suffering. Because McConn has been charged with DWI, the family of the deceased may be able to collect additional damages as well.

In Louisiana Civil Code Article 2315.4 it states:

In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

The exemplary damages mentioned here are punitive damages or damages that are meant to punish the party at fault (in this case the intoxicated driver). Punitive damages are awarded in addition to actual damages or special damages. Punitive damages can be collected anytime there was impaired driving, not just when the impairment was due to alcohol, if the following three elements are proven:

-The driver was intoxicated and lost normal control of his mental and physical faculties
-The intoxication was a cause in fact of the injury in question. Cause in fact does not require that the intoxication was the only factor, but at least a substantial factor in the injury.
-The intoxicated driver had wanton or reckless disregard for the safety of others. This means that the driver was consciously indifferent to the consequences of his actions.

Whether or not these elements are present is a question of fact that is given to the jury to decide. This can make proving a punitive damages claim very difficult. A toxicology report showing the defendant had a high BAC level is helpful. Expert witness testimony is also often used.

Continue reading " 17 Year Old Killed in Denham Springs Car Accident: DWI to Blame " »

The St. Mary’s Parish Council has recently voted unanimously to ban pit bulls within unincorporated areas of the parish.

As reported in Franklin’s Daily Iberian, the ordinancemakes it illegal to: 


own, possess, keep, exercise control over, maintain, harbor, transport or sell any pit bull...in the designated areas of St. Mary Parish. It also provides restrictions and stipulations to any owner currently owning the breed as of the bill’s starting date of July 1.

According to District 6 Councilman Logan Fromenthal, the goal of the ban is to prevent dangerous pit bull accidents that can result in death or loss of limbs. The passage was not without controversy, however. Intense debate ensued prior to passage of the ordinance as well as at a public hearing on January 13th. Residents questioned the harsh restrictions of the ordinance in particular. The ordinance was amended to address some of the public’s concerns. For example, the annual requirement for people who own pit bulls to obtain a license was changed to a one time $50 licensing fee and the sign requirement for those with a pit bull was changed from “Beware Dangerous Dog” to “Beware of Dog.”

Restrictions in the ordinance apply to people who currently own pit bulls and are grandfathered in to the regulations. Additional restrictions for current owners include:

Pit bulls must be micro-chipped and have a license tag on their collar.

Pit bulls must be kept in a secure pen with a concrete floor at least 2 1/2 inches thick and a fence at least 6 feet high.

Any owner who violates the ordinance is fined no less than $500 for a first offense and $300-500 for a second offense. After a third offense a $500 fee is charged and the pit bull is impounded.

St. Mary’s parish is not the only part of Louisiana that is serious about the dangers of dog bites. Controversial ordinances aside, someone injured by an animal anywhere in the state can bring an action against the owner of the animal that has hurt them under Art. 2321 of Louisiana’s Civil Code.

Under the statute, "the owner of an animal is answerable for the damage caused by the animal," if it is shown that he knew or should have known that the behavior of the animal would cause damage and failed to exercise reasonable care to prevent that damage. If the owner of a dog could have prevented injury to another person and the dog was not provoked, the owner will be held strictly liable for damages such as the cost of medical expenses or compensation for pain and suffering.

A finding of strict liability is very important because it allows an injured party to bypass the duty and breach elements of a traditional negligence claim. As an example, if the owner of a dog violates Art. 2321 and another person is injured, the owner is liable without the injured person having to separately prove that she was owed a duty by the owner and the duty was breached.

If you were injured by an animal bite there could be a variety of vehicles under which you may be able to recover damages. Whether it be through an action brought under a local ordinance like this pit bill restriction or under state law, an excellent attorney is key to a successful liability claim.

Medical malpractice claims and recovery based on those claims are regulated by Louisiana statute. As such, the law places limits on the time an injured party has to file a claim. Once a claim is filed, the review process is subject to intermediate deadlines. As the following case demonstrates, a misstep in either the overall time limit or one of these intermediate points can be hazardous to a malpractice claim.

The case of Carter v. Ochsner Clinic Foundation, 978 So.2d 562 (La. Ct. App. 2008), involved a plaintiff, Janet Carter, whose mother died because of an improperly placed catheter. Ms. Carter sued both the doctor and the clinic involved in her mother’s treatment. Unfortunately for Ms. Carter, her attorneys’ work also proved to be a little sloppy.

Ms. Carter’s mother passed away on July 14, 2005. Under Louisiana law, a claim for a wrongful death resulting from medical malpractice must be filed within one year of the death (La. Rev. Stat. Ann. § 9:5628). Technically, the law requires a plaintiff to file a claim within one year of the malpractice or one year of discovering malpractice. However, the Louisiana courts have reasoned that when a person dies, the potential malpractice is readily evident. Thus, the statute of limitations begins to run on the date of death.

Ms. Carter’s attorneys lodged a complaint with the appropriate authorities on April 17, 2006, well within a year from the alleged malpractice. However, they failed to pay fees that the panel (called the Patient’s Compensation Fund Oversight Board, or the PCF) requires plaintiffs to submit. Because those fees were not paid, the PCF ruled the April complaint was invalid.

Later, in September of 2006, Ms. Carter’s attorneys submitted the claim again, this time with the required fees. However, the defendants – the doctor and the clinic – argued that the one year time period to file the claim had elapsed. They cited the rule mentioned in the third paragraph above, that the time period begins when a patient dies. Thus, Ms. Carter’s claim was now barred by another missed deadline.

Carter’s attorneys attempted to recover, but the court remained unconvinced. The attorneys argued, among other things, that it was not until March of 2006 that they received a report indicating that medical malpractice led to Carter’s mother’s death. They contended that the statute allows them one year from that point to file a claim. However, the court reiterated the rule established in Louisiana case law - when a person dies as a result of malpractice, "the damage resulting from the alleged malpractice is readily apparent" upon the victim’s death. Because that time period had elapsed, the court dismissed Ms. Carter’s claim.

Unfortunately for Ms. Carter, these missed deadlines eliminated her malpractice claim. This case illustrates the importance of finding a qualified attorney whom you trust to help protect your rights. It also demonstrates that time is of the essence. If you believe you or a loved one has been the victim of medical malpractice, do not wait! Contact an attorney so they can help you proceed in a timely manner.

Continue reading " Port Allen Case Shows that Deadlines Can Invalidate a Medical Malpractice Claim " »

Schools Tackle Prom Drinking Risk
Schools around the country attempt to confront the issue of student drunk-driving, especially in the spring, around prom season. One way to try to prevent teen drinking and driving is to talk to kids about the dangers while they are still young. Many high schools bring in a speaker, often a family member of someone killed by a drunk driver, or even a sorrowful drunk driver himself.

But a Baldwin high school, West St. Mary, located in St. Mary Parish, chose an even more attention-grabbing method. Instead of an assembly, the school involved students, Baldwin fire rescue workers, St. Mary Parish Sheriff's deputies, Louisiana State Troopers and even a hearse from a local funeral home to put together a mock car accident.

Many students wiped away tears as they watched, and some walked away before the entire situation played out, unable to bear the emotion.

Legal Issues
According to The Daily Iberian

Assistant District Attorney Vincent Borne also spoke to the students, explaining in an accident such as the staged event, the driver of the vehicle at fault could potentially be sentenced to 30 years in prison, and faced a minimum prison term of two years if convicted for vehicular homicide while driving drunk.

Indeed, a drunk driving accident has many legal consequences, even beyond the criminal law penalties that people usually consider. A victim of the crash will most likely need legal representation in order to handle insurance claims and disputes and navigate the justice system if damages are to be sought.

Damages
Louisiana law permits a victim injured by an intoxicated driver to recover punitive damages. Punitive damages are damages that a jury or judge can award against a drunk driver or his or her insurer in addition to actual damages such as medical costs, lost earnings, pain and suffering, loss of enjoyment of life, disfigurement, etc.

In order to prove a claim for punitive damages for impaired driving, Louisiana Civil Code Article 2315.4 requires proof of three (3) elements:

1. That the driver was intoxicated or had consumed a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties;
2. That the intoxication was a cause-in-fact of the resulting injury; and
3. Wanton or reckless disregard for the safety of others.

These elements of proof are questions of fact to be determined by a judge or jury.

Our firm is happy to West St. Mary and other proactive high schools help educate teenagers to the horrors of drinking and driving in hopes of reducing these tragic accidents.

When a person is injured by the poor or defective condition of public property (such as a cracked sidewalk or a pothole in the roadway), he or she may be able to recover from the municipality responsible for maintaining the property. Under Louisiana law, actions in against city governments for require the plaintiff to show the following: (1) the thing that caused the injury to the victim was under the city's control; (2) the thing was defective due to a condition that created an unreasonable risk of harm to the victim; (3) the city had notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of the victim's injury. LSA-R.S. 9:2800.

Ordinarily, the notice requirement means that someone must have reported the problem to the city ("actual notice") or the defect must have existed long enough for it to have been discovered as part of the city's regular maintenance operations ("constructive notice"). This is often a significant hurdle for injured victims, as dangerous conditions are frequently overlooked by the public and the victim generally has no information about whether the condition existed long enough that the city should have discovered the problem.

However, the law provides an alternative:

"The requirement of notice to the municipality is inapplicable to a case where the dangerous condition is attributable to negligent acts of the city or its employees." Whatley v. City of Winnfield, 802 So. 2d 983 (La. Ct. App. 2d Cir. 2001).

The Whatley case gives an example of how a victim was able to avoid the requirement of showing notice. In that case, Janie Whatley was walking near the corner of Lafayette and Abel Streets in Winnfield. While walking she tripped and fell over the cover of a water meter that was built into the sidewalk. Because the cover had come ajar, the meter provided an obstacle that ultimately led to Whatley's injury. At trial, the City of Winnfield argued it was not responsible for Whatley's injuries because the city had no notice of the open meter cover. The court dismissed Whatley's case, and she appealed.

The Court of Appeals, in reviewing the evidence at trial, concluded that it was more likely than not that the city's negligence had caused the dangerous condition. The court specifically noted that the meter cover could only be opened with a special key that only city employees had. Because city employees were the only people capable of having opened the meter, the court found a likelihood that the fall occurred as a result of an employee's negligence in failing to properly secure the cover. In its holding, the court found that "when the municipality creates the defective condition by its own substandard conduct, it is presumed to have knowledge of the hazardous condition." As a result, the court deemed the issue of notice "inapplicable" to Whatley's case and ruled that her complaint should not have been dismissed by the trial court (Whatley, 802 So. 2d at 986).

As the Whatley case demonstrates, recovering from a municipality for injuries arising from improperly maintained public property can be a challenge. An injured person should take care to consult counsel who knows Louisiana law and can help obtain a fair recovery.

Continue reading " Winnfield Slip and Fall Case Demonstrate City's Duty to Remedy Defective Conditions " »

Car accident claims often hinge on whether or not the defendant owed a duty to the injured party. If a duty was owed, it was breached, and the breach caused an injury, liability for negligence exists. However, if there was no duty, the claim is cut off.

The important question is then, when does a duty exist? Generally speaking, people and entities have a duty to act reasonably in every particular circumstance. Reasonableness can be difficult to define and it often depends on the relationship between the parties. For example, a taxi cab driver may have a duty to exercise more care in driving their fares than someone dropping a friend off at work. Sometimes state or federal laws and regulations help to define when a duty exists. If a party has violated a legally defined duty, bringing a successful negligence claim against them may be easier.

One such instance of a legally defined duty applies to those that operate commercial vehicles. According to Regulations issued by the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration, “extreme caution” must be taken when commercial vehicle drivers find themselves in treacherous road conditions. To quote the rule:

§392.14 Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated

This rule is pretty specific. It requires that commercial drivers be very careful if their visibility or traction is affected negatively by weather or other adverse road conditions. Theymust slow down, and if the conditions are bad enough they must pull off the road and not drive until it is safe.

Because of this rule it would be easier to prove liability if a commercial driver does not use extreme condition as required. As an example, if the driver of a big rig were to decide not to pull over during a rain and hail storm and then started to hydroplane, causing an accident where another driver was killed, the survivors of the deceased driver would very likely be able to collect damages in a lawsuit against the big rig driver and/or his employer. The duty element of a negligence claim would already be established. As such, at the very least, the defendant driver would need to explain why he did not pull over and why his decision to not pull over qualified as "extreme caution" as required by the law.

If you have been injured or a loved one was killed in a car accident it is the job of your attorney to have enough experience and knowledge of the law to know when such regulations exist and will be helpful.

Continue reading " Pull Over!: Commercial Vehicles Required to Not Drive in Unsafe Conditions " »

Early yesterday morning relatives of the survivors of the Deepwater Horizon explosion anxiously awaited the return of their family members. About 100 workers escaped onto a supply boat following Tuesday nights tragic explosion. When the boat arrived ashore early this morning they were looked over by doctors and then taken to a New Orleans hotel for what must have been an emotional reunion. Some families couldn’t wait that long. The Associated Press reports:

Some relatives, including Dana Eugene of Slidell, instead chose to meet their loved ones sooner when they docked in Port Fourchon. She tearfully hugged her brother, Kevin Eugene, who she said was tired and didn't look good.

'He's kind of shook up,'Eugene said, adding he described the ordeal as 'very scary.'

'We just want to get home,' she said.

The explosion certainly was scary, and not only for the workers. The hours dragged on for family members who waited Wednesday night to hear word from their loved ones. 4:30 a.m. at the Crowne Plaza Hotel couldn’t come fast enough.

Survivors were shaken up on their return home. According to reports from the Houston Chronicle :

Stanley Murray was reunited at the hotel with his son, Chad Murray, 34, the rig’s chief electrician.

'The first thing he asked for was a tooth brush,' said family friend Jessica Sharp.

Stanley Murray said his son told him workers had less than five minutes to get off the rig.

'My son had just walked off the drill floor,' Murray said. 'He said if been there five minutes later he would’ve been dead.'

While families like the Murray’s enjoyed a tearful happy reunion they also provided comfort to family members of those still missing. According to survivors, there is not much hope that any of the missing will be found alive given the magnitude of the explosion and fire.

Rig workers and their families are aware of the potential risks that go along with the job. However, that didn’t stop the fear relatives felt when hearing about the crash early Wednesday morning. Debi Nunley of Tyler’s husband works offshore on a different rig and called his wife to let her know their 24 year old son Mark was among the missing. Thankfully, 7 1/2 hours later the family got word that Mark had been found and was on his way back.

Kristin Hall of Denham Springs hadn’t heard about the fire when her husband called late Tuesday night to tell her he was okay. Even receiving good news was emotional for the mother of 3 whose 36 year old husband has held oil field positions for the last 10 years.

'It's definitely a risk that he takes when he goes out there,' Hall said Wednesday afternoon while she waited for word that she could reunite with her husband. 'He's told me before that they could blow up. He really knows the dangers.'

Even with the risks involved, Hall doesn’t think her husband will make a career change. She is comforted with the knowledge that he is well trained and rig fires like this one are relatively rare.

Following the explosion on the oil rig Deepwater Horizon 50 miles southeast of Louisiana’s coast Tuesday night, officials, crewmembers, and their families most likely have had serious questions about what could have ignited such an intense fire. At this point the cause is unknown and formal investigation will not be underway until rescue and firefighting efforts are completed.

The Times-Picayune reports:

The Coast Guard's Command Center in New Orleans received a report Tuesday about 10 p.m. that the rig was on fire and the crew was evacuating.

Luckily crewmembers perform safety exercises on a regular basis and are familiar with evacuation procedures. There were also several offshore supply boats in the area that provided assistance.

Just prior to the fire, the crew was cementing a production casing atop an 18,000 foot deep well. The plan was for the well to be abandoned and later tied into production facilities. This was done according to plan with appropriate testing completed and most likely was not to blame.

The Deepwater Horizon is owned by Transocean, Ltd., the world’s largest offshore drilling contractor. Transocean is a Swiss Company with offices in Houston. The rig has has been leased to BP Exploration Production Inc. who pay about $500,000 a day to use the huge 400 by 250 foot rig (roughly the size of two football fields). Last summer the Deepwater Horizon drilled the world’s deepest oil well, nearly six miles into the Gulf of Mexico, and enabled BP to find the Tiber Prospect, one of the largest petroleum discoveries in the US. While BP picks drilling locations for the Deep Horizon and designs the well, Transocean devises the drilling plan and operates the rig. The rig is only used for drilling and does not actually produce any oil.

The Associated Press reports:

Adrian Rose, vice president of Transocean, said the explosion appeared to be a blowout, in which natural gas or oil forces its way up a well pipe and smashes the equipment. But precisely what went wrong was under investigation.

Because Tuesdays explosion occurred in international waters, the U.S. Occupational Safety and Health Administration (OSHA) will not be able to investigate. However, according to OSHA, Transocean has no safety violations for the past five years. BP on the other hand has two open and 27 closed cases. BP also operates the site of a 2005 refinery explosion in Texas City, Texas that killed 15 people and injured 170. That accident was investigated by the U.S. Chemical Safety and Hazard Investigation Board. According to Bloomberg News, the Board is considering investigating this rig incident as well.

After missing crewmembers are found and safely evacuated, the cause for the accident can be investigated thoroughly and the damage to the rig (whether it can be saved) properly assessed. The Deepwater Horizon was built in 2001 in South Korea. It cost about $350 million to build and has a replacement value between $500 and $600 million.

Most parents probably get a little nervous when their teens take to the road, and for good reason. Teenage drivers are often very dangerous behind the wheel. In addition to their inexperience, teen drivers are more likely to succumb to the supposed “thrill” of risky behaviors like drunk driving, driving at night, distracted driving due to cell phones or usage of MP3 players, etc.

Statistics confirm parental apprehension. According to one insurance provider, each year:

More than 400,000 teens between 16 and 20 are severely injured in car accidents, and more than 5,000 lose their lives. Despite the very small percentage (10%) of the population that teenagers account for, teenage car crashes actually account for 12 percent of fatal car accidents.

The statistics are alarming. A teen driver is four times more likely to get into an accident than any other driver. The risk is even greater during the first year the teen learns to drive.

Beyond the risk of a child being severely injured (or worse) in a tragic accident, parents could also be held financially liable for the damages caused by their teen driver. Whether or not parents are likely to be held financially responsible very much depends on the facts of the case.

Family Purpose Doctrine

Under the Family Purpose Doctrine, if a parent allows a child to drive a vehicle they own and maintain for themselves they are liable for their child’s negligence while driving. That means that if you allow your child to drive your car and they cause an accident, you may be forced to pay for the medical expenses, pain and suffering, or lost wages of the injured parties. In some circumstances you could even be forced to pay punitive damages.

The idea behind the family purpose doctrine is that the owner of a car can control the car’s use and as such allows family members to drive. The owner’s control of the car gives rise to liability. If both parents own a car they can both be held fully liable for their teens negligence. One way to get around the family purpose doctrine is for parents to give title of a vehicle to their child. If the child owns the car, and not the parent(s), the parent(s) cannot be held liable.


Because of the family purpose doctrine it is a good idea for parents to make sure they have adequate liability insurance to cover any possible accidents or incidences. If insurance is inadequate a judgment could be rendered against the parents personally, reaching other assets. The amount of damages may even be based on the parents ability to pay.

For these reasons it is very important that parents educate their children about the risks of dangerous driving behaviors. While parents cannot control what their children do behind the wheel, they can ensure their teens are fully aware. Undoubtedly, informed teens will be more likely to make safe intelligent driving decisions than those who have not been fully informed of the consequences unsafe behavior can have.

A thunderous explosion rocked an oil rig named the Deepwater Horizon 50 miles off the Louisiana coast last night - potentially causing the nation’s deadliest offshore drilling accident in more than 50 years.

As noted in an article in the Times-Picayune, at least 15 of the 126 crewmembers onboard were injured and 11 were still missing as of Wednesday

The Coast Guard was prepared to search through the night Wednesday for 11 missing workers as firefighters battled a raging blaze fueled by crude oil gushing from the rig about 50 miles southeast of Venice.... Rear Adm. Mary Landry, commander of the Coast Guard's 8th District, said an intensive search for the 11 missing workers would continue into the night if necessary.

'We will continue searching as long as it is reasonable that we might stil find someone,' she said.

Seventeen workers total were taken by helicopter to hospitals across the region. According to Adrian Rose, Vice President of Transocean, Ltd. (the Swiss Company that owns the Deepwater Horizon), the injuries included burns, broken legs, smoke inhalation, and lots of scratches and bruises sustained while people tried to get away. Anxious family members waited at Port Fourchon last night to be reunited with 98 of the workers who were rescued.

In the deep waters of an area known as the Mississippi Canyon, the rig was estimated to be leaking 13,000 of sweet crude oil an hour with nearly all of it burning up in the fire. Although an oil spill is not expected, pollution response vessels were sent to the scene just in case. Even Louisiana governor Bobby Jindal has gotten involved. According to Jindal, “Officials at the Coastal Protection and Restoration Authority are also working with the state’s oil spill coordinator office to monitor any potential environmental impact.”

Pollution control efforts aside, the main focus right now is obviously search and rescue, which requires putting out the fire consuming the rig. Five private fireboats battled the blaze throughout the day yesterday, fighting flames that shot up to 200 feet in the air. A remotely operated vehicle will be sent to cut off the flow of petroleum at the base of the river in hopes of extinguishing the flames. This could prove difficult, however, due to the size of the fire and intensity of the heat. The fire was so intense that Marc Creswell, an Air Med helicopter pilot, could see it from 70 miles away as he flew in from Lafayette to pick up the injured. “It was so bright that we had to take off our night vision goggles about 40 miles out,” he said.

More information on this issue will be posted as it becomes available.

In 2005, Dale Spires of DeRidder was in a car accident that was caused by April Roberts. He sued Ms. Roberts and her insurance company paid out $10,000, which was the limit under her insurance policy. The suit was dismissed in 2006.

In 2007, Spires filed an additional lawsuit against his uninsured motorist carrier, State Farm, and alleged that Ms. Roberts was underinsured and as such he was entitled to additional recovery for the damages he sustained in the accident as well as for his emotional distress. State Farm argued that under Louisiana law, Spires had to assert all causes of action in the first suit against Ms. Roberts and was precluded from collection additional damages from state farm since the action arises from the same accident. As such, Stare Farm argued, because Spires did not bring the claim against State Farm when he sued Ms. Roberts he could no longer do so. The trial court agreed and dismissed the claim, leading to the Spires appeal.

In a 2008 decision, the Court of Appeals reversed the trial court judgment and found that the Spires were entitled to pursue a claim against State Farm for additional damages. The case hinged on the court’s interpretation of La.Code Civ.p. art 425 which states, "A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation." According to the Court, art. 425 is merely a reference to the broader principle of res judicata.

When the Court of Appeals applied the res judicata principles to the Spires case they found in favor of Spires because res judiciata only applies to actions between the same parties. The first case was between Mr. Spires and Ms. Roberts and the second case was between Mr. Spires and his insurance company. The court also made the practical observation that a plaintiff who files a lawsuit against the party at fault in an auto accident may not know at the time whether his underinsured motorist insurance carrier will be implicated because at the time the extent of the damages, the limits of the at-fault parties insurance, and how the court will determine fault is unknown.

Res judicata is a very important legal principle that is applied to ensure that parties cannot re-litigate issues that have already been fully and properly decided by a court.
Under res judicata a valid and final judgement is conclusive between the same parties (except on appeal) and:

when a judgment is in favor of the plaintiff, all causes of action arising out of the same occurrence are merged into the judgment.

when a judgment is in favor of the defendant all causes of action arising out of the occurrence are extinguished and no further action may be taken on them.

a judgment in favor of either party is conclusive in any subsequent action between them with respect to an issue that has been litigated and determined in the judgment.

Any party that brings a lawsuit should make sure they have the assistance of an attorney who fully understands legal rules and their implications so that their claim will not be barred by the court.

Continue reading " DeRidder Man Successful Against Insurance Company: Court Explains Principle of Res Judicata " »

An explosion has occurred in the Gulf of Mexico on an offshore oil rig.

While details are scarce at this time, updates will be posted as they become available.

The cruise ship Celebrity Mercury was forced to its home port of Charleston for a four day cleaning recently. After the third straight outbreak of Norovirus on the 1870 passenger ship, the U.S. Centers for Disease Control issued a rare “no sail” recommendation. The return home came after Celebrity took some action to stem the outbreak to no avail.

As noted in an article in USA Today,

The repeated outbreaks came despite an aggressive effort by the line to stop the chain of transmission of the illness. Celebrity conducted an unusual top-to-bottom cleaning of the Mercury Feb. 26-27 that delayed the ship's Feb. 26 departure by a day. The line also delayed the March 8 departure of the ship by several hours so it could undergo another round of extra cleaning and disinfecting

Norovirus is a stomach illness characterized by diarrhea and vomiting. 406 of the 1829 passengers on the last voyage of the Mercury, or nearly 22%, got sick. This is after 411 passengers on the February 15-26 sailing and 182 on the February 26-March 8 sailing. Outbreaks of this magnitude are extremely rare and its even rarer to have three outbreaks in a row.

Like Charleston, New Orleans is a major port for cruise ships. Many residents of this state leave from there. What happens if your much-needed vacation turns into a sickness disaster as it did for many Celebrity passengers? Are there legal ramifications?

Someone who is taken ill while on a cruise may very well have a negligence claim against the cruise line. In order to prove negligence the passenger must be able to prove that the cruise line owed a duty to him or her, the duty was breached, and the breach resulted in injury (sickness). If these elements are proven the cruise line will be responsible for paying medical expenses, lost wages, and may even be forced to pay compensation for pain and suffering.

Claims against cruise lines are unique, however, and may differ very much from a traditional negligence claim. There are several things to keep in mind if you are considering suing a cruise line.

First, did the cruise line violate a duty to you? Was there negligent action?

Cruise lines have a duty to provide a clean, safe place for people to vacation. As an example, if the ship was not clean enough to prevent the spread of illness, a duty was probably violated. Or, if you became sick because food was not refrigerated to the correct temperatures or was left out for too long, a duty was most likely violated.

Second, can you prove the negligent action?

Cruise ships are constantly traveling and they host passengers from all over the world. This may make it very difficult to track down information regarding the conditions on the ship that may have led to your injury or illness. If you are injured or become sick while on a cruise make sure you get the names and contact information of other passengers who can verify the conditions of the ship. If possible, take pictures of the hazardous or unsafe conditions.

Third, what are the terms of your passenger ticket?

As a cruise line passenger, your ticket is a contract between you and the cruise line. Tickets often provide legal guidelines for bringing claims against the cruise line such as a requirement to inform the cruise line of an intent to bring a claim or collect damages, a limitations period for bringing a claim, or a forum selection clause requiring that claims be brought in a certain court. While you may be able to overcome some terms in court, you will be better off if you know precisely what the passenger ticket says.

The prospect of taking on a cruise line may seem overwhelming. However, If you have a valid claim and a dedicated experienced attorney on your side, a successful claim may be within reach.

On Friday, March 19, a police checkpoint in north LeFourche surveyed over 200 cars on La. 20 in Chackbay between 10 p.m. and 4a.m. according to a Daily Comet article. The checkpoint caught three DWI offenders and cited nine open-container violations.

Sobriety checkpoints are legal in the state of Louisiana. Many residents see being stopped momentarily by the police as a small inconvenience to endure in order to deter alcohol impaired driving. The state of Louisiana employs many aggressive drunk-driving policies. Louisiana requires an ignition interlock for all first time DWI offenders and has strict policies for parents and other persons contributing to the intoxication of minors.

Despite Louisiana’s tough policies when it comes to drunk driving, according to the National Center for Statistical Analysis, 37% of traffic fatalities in Louisiana were alcohol related in 2007.

While police checkpoints are effective in pulling drunk drivers off the road, a minority of states determined they were illegal. According to the Governor's Highway Safety Association, eleven states do not conduct sobriety checkpoints because they are either considered illegal under state law or the state has ruled it does not have the authority to conduct them.

Texas is the only state that prohibits sobriety checkpoints because of a Constitutional issue. The Fourth Amendment guards against unreasonable search and seizures. A checkpoint where police can stop vehicles without probable cause is a violation of that right according to the Texas courts. While everyone feels it is important to stop drunk driving, some feel that other measures can be taken to stop drunk-driving that do not impede on their constitutional rights.

Some see police checkpoints as a way to not only combat drunk driving, but also bad driving in general. Aside from the DWI offenders and the open-container violations, the police checkpoint in LeFourche cited people for a number of other violations, such as improperly restraining a child and possession of marijuana. Others however fear that allowing police enforcement to have this type of authority will lead to possible abuse.

Although some states have deemed sobriety checkpoints illegal, law enforcement in Louisiana finds that they are a very effective tool in curbing drunk driving and will continue to use them. “There is no doubt there is a strong correlation between pulling drunk drivers off the road and saving lives," Sheriff Craig Webre said in a news release. "We will continue aggressive efforts like the one last night and this morning to do whatever we can to protect the citizens of this parish."

The one thing that people can do, whether checkpoints are legal in states or not, is remain responsible when drinking. Choosing to take a taxi or have a designated driver can not only prevent accidents but prevent serious legal issues from arising for those who chose to drive.

Reports of drivers arrested for DWI, or "driving while intoxicated," should serve as a reminder of the substantial duty imposed by the law on drivers to operate their vehicles in a safe manner. Motor vehicle operators owe a duty of care to all other drivers, passengers, and pedestrians to take reasonable care to avoid harm or injury. Some common breaches of this duty include driving too fast for conditions, failing to keep a proper lookout for other traffic, failing to observe traffic signals or markings, and driving while impaired by alcohol or drugs.

Two recent reports from Houma Today involve drivers who operated their vehicles while "under the influence" in Terrebonne Parish. The first involved Jeffrey Trahan of Gibson, Louisiana, who on March 22 received a five-year prison sentence for his role in a deadly car crash one year prior. According to police, on March 22, 2009, Trahan drove his 1996 Honda Accord on North Bayou Black Drive in Houma where he ran off the road into a ditch. Trahan's car flipped over, ejecting both Trahan and Donald McInnis, his passenger. McInnis, 17, who was also from Gibson, was pronounced dead at the scene of the accident. According to prosecutor Juan Pickett, Trahan tested positive for marijuana and Xanax, a prescription anti-anxiety medication that can adversely affect driving. Trahan pleaded guilty to vehicular homicide and will be required to serve at least three years in jail without parole.

In the second report, James McDowell III of Baton Rouge was arrested in Thibodaux on March 24 for a fifth-offense DWI. At approximately 1:30 AM, a Louisiana state trooper observed McDowell swerving across lanes on La. Hwy. 308 near Bubba's II Seafood Restaurant. The trooper charged McDowell with improper lane use, driving with a suspended license, and having an open container of alcohol in his car. McDowell had a blood-alcohol content of .052. While the state legal limit is .08, the trooper arrested McDowell because he had reason to believe that McDowell might have been under the influence of another substance. McDowell was taken to the Lafourche Parish jail.

In addition to the criminal penalties for DWI offenses (fines, license suspension, jail time), inebriated motorists can also face civil actions for the property damage and physical injury or death that result from their unsafe driving. For instance, the McInnis family may wish to pursue a cause of action against Jeffrey Trahan for the death of Donald. Other DWI accident victims can make claims for monetary compensation for medical care, lost wages, pain and suffering, and emotional trauma. A criminal conviction for DWI is as close to the law gets to a "slam dunk" for a plaintiff in a negligence suit against a drunk driver.

Continue reading " Deadly Crash and DWI Arrest Remind Drivers of Duty of Care " »

On December 15, 1955, James Edwin Watson, then 20 years old, was driving his Harley-Davidson motorcycle southbound on the two-lane State Highway 17 in West Carroll Parish, Louisiana. He was being followed at some distance by his friend, Douglas Simpson, in a Ford automobile. Both Watson and Simpson intended to make a left turn onto Airport Road on their way to Watson's house. As they approached the intersection, a vehicle driven by Stanley D. McEacharn, Jr. overtook Simpson's car on the left. Then, as McEacharn began to overtake Watson's motorcycle, Watson, unaware of the presence of McEacharn's car approaching in the left lane, proceeded at an angle into the left lane to make his left turn onto Airport Road. McEacharn's car struck Watson's Harley, sending the motorcycle further down the highway before it came to rest in the ditch on the side of the road. Watson's body was found on the shoulder of the road, approximately half-way between where McEacharn's car stopped and the motorcycle came to rest.

At trial, Simpson testified that as McEacharn's car overtook his own, Watson's Harley was out in front about 450 feet and was traveling, at an angle toward Airport Road, at about five MPH. Simpson said Watson gave a signal of his intention to make a left turn. McEacharn denied seeing any signal from Watson but admitted as he passed Simpson's car he saw a glimpse of a man on a motorcycle. Both McEacharn and Simpson testified that they did not observe Watson make any turn of the head to the rear to check for traffic overtaking him.

The trial court concluded from the evidence that McEacharn had the last clear chance to avoid the accident but failed to avoid it because of "excessive speed, failure to keep a proper lookout ahead to discover the presence of those who may be in danger, failure to sound his horn, and failure to apply his brakes in time." Watson v. McEacharn, 99 So. 2d 138, 139 (La. Ct. App. 2nd Cir. 1957). The court concluded that McEacharn's negligence constituted the "proximate and immediate cause" of the accident, with Watson's negligence in placing himself in a position of danger only a "remote" cause. Accordingly, the court entered judgment for Watson.

On appeal, McEacharn argued that the trial court misapplied the last clear chance doctrine and that neither party was legally responsible for the accident because both Watson and McEacharn were negligent. The Court of Appeal, in considering McEacharn's position, reviewed the Rottman v. Beverly case in which the Louisiana Supreme Court explained:

Where the danger is brought about by plaintiff's own negligence, but is not discovered by defendant, because of a failure to exercise due care, the parties are on equal footing. Their faults are mutual, their negligence is concurrent. It arises from the same cause, viz., failure to observe. The negligence of each party is a contributing cause of the accident. In such case it cannot be determined whether the negligence of the plaintiff or that of the defendant was the proximate and immediate cause of the injury, and neither party can recover. (Rottman v. Beverly, 183 La. 947 (1936))

Finding that analysis inapplicable to the facts of this accident, the court instead relied on a different passage from Rottman:

But if a plaintiff negligently puts himself in a place of danger and his negligence and danger are actually discovered by the defendant, then there devolves upon the defendant a duty which intervenes or arises subsequent to the negligent acts of the plaintiff, and that duty is to save the plaintiff from the consequences of his negligent acts if he can.

Taking this reasoning further, the court noted that the "first duty of those who operate ... motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger." If motorists

Perform that duty and discover that some one is in danger, then a second duty arises, and that is to use every possible available means to avert injury. If the defendant fails to perform that duty, his negligence in that respect is regarded as the proximate and immediate cause of the injury and the negligence of the plaintiff in putting himself in a place of danger, the remote cause. In such cases the last clear chance doctrine applies even though plaintiff's negligence continues up to the accident.

In other words, McEacharn had a duty to keep watch for other drivers like Watson who negligently put themselves in harm's way. Because McEacharn recklessly failed to discover the danger to Watson--and because Watson never became aware of his own peril --McEacharn failed to meet his duty to avoid the accident. This was the negligence which formed the basis of McEacharn's liability for the crash.

The Watson case illustrates that drivers accept substantial responsibilities every time they get behind the wheel. Also, the case demonstrates that in light of these many duties, fault-finding in accident cases can be a difficult challenge. Injured parties should be sure to consult knowledgeable counsel who can help them build a negligence case and obtain the recovery they deserve.

Continue reading " "Last Clear Chance" Doctrine Applied in Tragic Motorcycle Accident in West Carroll Parish " »

On November 25, 1984, a natural gas pipeline running through a field in West Feliciana Parish, Louisiana exploded, causing the loss of lives and substantial property damage. The pipeline was owned by the Texas Eastern Company, but the land over which the pipeline ran was owned by Mary Lou Trawick Winters. Nearly thirty years prior to the incident, Mrs. Winters had agreed to provide Texas Eastern an easement to "construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace pipe lines" on the property. Dupree v. Texas Eastern Corp., 639 F. Supp. 463, 464 (M.D. La. 1986).

Relatives of the parties injured in the blast filed suit and named Ms. Winters as a defendant because of her ownership of the land over which Texas Eastern's pipeline was run. The U.S. District Court for the Middle District of Louisiana first examined the state laws related to the granting of easements, and noted that "there are literally thousands of miles of underground natural gas ... pipelines in Louisiana. It is a rare southwest Louisiana rice field that does not have at least one pipeline crossing it--many have multiple pipelines." The court also observed that under federal law, natural gas pipeline companies are permitted to expropriate property needed for running the lines. In other words, landowners can be required to grant easements on their property for the installation of pipelines so long as the gas company compensates them based on the fair market value of the easements.

Although the court noted that pipeline easements are typically established by "voluntary" agreements between the pipeline companies and the landowners, it concluded that as a practical matter landowners are in no position to decline the request to grant an easement when "asked." Revealing clear sympathy the position of such landowners, the court concluded, "the chances of the courts of Louisiana holding a landowner liable for activities of the [gas company] over which the landowner had no control, are akin to those of the proverbial snowball in the warm place."

Nevertheless, the court analyzed whether under the facts of this case Mrs. Winters could be found liable under a negligence theory. To do so under Louisiana law, it would be required to "determine whether the wrongful condition [the explosion] was a cause of the harm [personal injury and property damage] and whether the landowner breached a legal duty imposed to protect against the particular risk involved." Applying this logic, the court concluded that there was no doubt that the pipeline exploded, causing serious harm; however, the plaintiff would still have "the burden of proving that the property which caused the damage, in this case the pipeline, was in the custody of the defendant."

The court thus determined that "the pipeline was not in the custody of Mrs. Winters." Because Mrs. Winters had granted Texas Eastern the easement, she had no control or authority over the pipeline on her property:

She did not own the pipeline, and therefore had no duty (and no authority) to inspect, maintain, or perform any other acts with reference to the pipeline, the omission of which, or the substandard performance of which acts might subject her to liability, nor did she have any authority to interfere with Texas Eastern's use of the [easement].

While negligence claims do exist that punish a property owner for an injury that takes place on their land, it is important to distinguish simple accidents that occur on a location and accidents occur because of the condition of the location. As the case above illustrates, the law does protect people from being held culpable for all circumstances and limits it to the areas in which the owner should have known the injury could occur. This includes examples like overgrown trees, dangerous excavation/holes, pools, etc.

The idea of negligence for an injury is a complex one and requires careful legal analysis to determine culpability.

Continue reading " West Feliciana Parish Pipeline Explosion Illustrates the Required Elements of a Negligence Case " »

Greek Seaman Dimitrios Keramidas’s ship was docked in East Charles Parish in 1999 when he became sick. He was hospitalized and treated for sepsis at East Jefferson General Hospital in Metairie for two months before he was sent back to Greece with medical approval. Keramidas never recovered and passed away in May 1999. His surviving widow and son brought suit under the Jones Act against Shipping and Steamship Mutual Underwriting Association Limited. The defendant was granted a summary judgment motion because the trial court found that “under the forum selection clause of the seaman's employment agreement, the country of Cyprus, not the United States, is the proper forum to bring the suit.” The 5th Circuit Louisiana Court of Appeals reviewed and affirmed the trial court’s decision.

Forum Selection Clauses

Even though states usually can enforce their own procedural rules and forum selection clauses are basically procedural, in admiralty cases, they are controlled by federal law.

Under federal law, forum selection clauses are presumed to be valid and should be enforced unless it is clear that enforcement would be unreasonable, unjust, fraudulent, or against a strong public policy of the state.

Potential Exceptions to Forum Selection Clause in this Case

1. The plaintiffs contended that forum selection clauses are against the public policy of the State of Louisiana. After all, in R.S. 23:921 A(2), the enforcement of forum selection clauses is expressly prohibited. However, admiralty cases are unique. R.S. 23:921 A(2) is part of the Labor and Workers' Compensation Section of the Louisiana Revised Statutes and is designed to protect Louisiana employees and employers, not foreign maritime workers. Had the legislature intended to protect foreign maritime workers they would have included a statement to that effect in the law.

2. The plaintiffs also argued the enforcement of the clause would be unreasonable because Mr. Keramidas was not a member of the union that negotiated the contract. The court does not accept this argument and cites several Louisiana cases where clauses were enforced despite the injured employee not being a union member. In addition, if the employee is a veteran seaman they should understand the employment contracts they sign.

3. The plaintiffs claimed that the clause is unenforceable because it leads to an unjust result. Here, the plaintiffs contend that they cannot afford to pursue the case in Cyprus. Specifically, to travel between Greece and Cyprus would cost more than the compensation that can be collected under the contract. While the compensation amount may be low by U.S. standards, the mere fact that the forum required in contract would not provide maximum recovery does not add up to injustice.

4. Finally, the plaintiffs contended that because Keramida’s widow and son were not parties to the employment contract, it does not apply to their claims. However the contract is clear in its intent to apply to both Keramidas and his family/survivors. The contract even specifically references the "seaman’s property administrator and/or seaman’s family members."

Although tragic, this case is a good example of how the courts have applied the Jones Act. In noting the exceptions it has made in the past to apply the Act to a variety of individuals, this case also demonstrates the wide variety of application possible.

According to reports from the Associated Press and Louisiana’s WWLTV, at least four people were killed in a tragic accident near Grosse Tete last Friday (April 9, 2010). The accident was so bad that a portion of 1-10 westbound was closed and traffic was diverted at the La. Highway 415 to U.S. Highway 190.

As reported by state troopers, an eastbound 18-wheeler sideswiped another 18-wheeler stopped on the shoulder. The first truck lost control, crossed the median, and collided head on with yet a third 18-wheeler. The second collision caused a fire. After the fire was put out, a car was found in the wreckage. The crash is still under investigation and no names of those involved have been released. However, a 15 year old girl reportedly survived without serious injuries.

After a tragedy like this one, family members of those killed will surely be asking themselves who was to blame for the accident and who will be responsible for damages. Survivors can sue whomever is at fault in a wrongful death lawsuit and may be able to collect a variety of damages, including medical and funeral expenses or compensation for pain and suffering. However, with an accident involving an 18-wheeler or other large commercial truck (or many, as in this case), the legal issues are a bit unique. The differences mainly stem from the fact that in a traditional vehicle accident where another driver was at fault, he and his insurance company will typically be held fully responsible for damages if the driver is proven to have acted negligently.

When an accident is caused by a truck driver, the driver and his employer or supervisor/s may be held responsible for negligence in driving or in the hiring and training of drivers. Each entity may have separate insurance that can also be held responsible. In addition, there is an increased chance that faulty parts may be to blame with such a large dangerous vehicle, and thus the manufacturer may be responsible as well. Even if faulty parts aren’t to blame, insufficient maintenance of the vehicle may be. To say the least, this makes claims involving 18-wheelers much more complex because the sheer number of factors that may be taken into account in litigation.

Additionally, because of all the risks involved with 18-wheelers, state and federal laws regulate their operation. In fact, an entire federal agency, the Federal Highway Administration, was formed in the early 1980’s in an effort to decrease the number of fatal truck accidents on American highways. There are specific laws that regulate the licensing of truck drivers, including the fact they must be able to meet minimum standards to be issued a Commercial Driver’s License. For particular vehicles, special endorsements are even required.

The myriad of laws governing large commercial vehicles like 18-wheelers can be relevant in an injury or wrongful death lawsuit because under a negligence per se theory if a driver has violated the law, a claimant may be able to bypass the duty and breach elements of proving a negligence claim. This means that rather than having to prove they were owed a duty by a driver, and the duty was breached, they would only need to prove that the driver caused injury and the injury resulted in damages in order to recover.

If you have been injured or lost a loved one in a tragic 18-wheeler accident it is absolutely vital that you have an attorney who fully understands the layers of potential issues and claims that could pertain to your case.

Continue reading " At Least Four Dead in Fiery Grosse Tete Crash: Unique Legal Issues Emerge in 18-wheeler Accident " »

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As reported on our sister blog, Dow Chemical has experienced another chemical leak in Southeast Louisiana. This time involving the very dangerous titanium tetrachloride. The incident has led to the evacuation of two schools and various roads while local emergency experts assess the situation.

WWL reports Scott Whelchel, emergency operation director for St. Charles Parish, as stating the situation is under control and actions being taken are out of concern and precaution.

He says out of an abundance of caution they are evacuating some homes just north of the Shell Norco facility east of Spruce Street and south of 5th Street. He says the winds are now blowing any chemical cloud over the spillway and away from homes.

Whelchel says if anyone smells a chemical odor the should call 911.

"What they would smell is a hydrochloric acid smell because that's what it actually mixes with the air, this chemical it turns into hydrochloric acid," he explained.

Two schools are in the evacuation zone. They are Norco Elementary School and Sacred Heart. Whelchel says they have relocated students who arrived early and advise parents to await further information on where to take their children, but do not bring them to the school.

This incident is sure to draw the ire of various environmental groups, including the Louisiana Bucket Brigade, at a time where claims filed against the chemical manufacturer are moving forward in response to their chemical leak in Hahnville. That incident, which the Berniard Law Firm is , dealt with the release of ethyl acrylate into the air, leading to residents ranging from Hahnville to Kenner to New Orleans experiencing a myriad of medical symptoms. For more information on that incident, feel free to check out our website Dowleak.com or read up on the circumstances surrounding the incident on our blog section dedicated to the incident, located here.

More information will be posted as it becomes available.

A 2004 Louisiana Supreme Court case provides a good explanation of the difference between Medical Malpractice and ordinary negligence. Not every negligent act of a qualified health care provider falls within the Medical Malpractice Act (MMA), La.Rev.Stat. 40:1299.41(1).

In Williams v. Hospital Service of Jefferson, the plaintiff was injured as she was pushed in a wheelchair by an employee of West Jefferson Medical Center in Marrero, Louisiana. A wheel on the chair came off, she fell, and she was injured. She sued the hospital for negligent failure to repair the wheelchair and failure to insure that the wheelchair was in proper working condition. The sole issue the Supreme Court considered was whether the alleged negligence fell under the MMA. The Supreme Court of Louisiana determined it did not and sent the case back to the district court for further proceedings.

The Louisiana State Legislature enacted the MMA in 1975. One reason for the law was to provide health care providers with some advantages in actions against them for malpractice by limiting the damages that can be collected and requiring that each claim first be reviewed by a medical panel. The MMA only applies to claims "arising from medical malpractice" under La.Rev.Stat. 40:1299.41(1). Negligent behavior of health care providers that does not fit in the medical malpractice definition are governed by traditional tort principles. Courts have construed the coverage of the MMA strictly. The law defines Malpractice as :

Any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

To further clarify the definition, in Coleman v. Deno the Supreme Court provided six factors to be considered in determining whether malpractice is present:

First, was the wrong treatment related? Was it caused by a failure in professional skill?

Second, is expert medical evidence needed to determine whether the appropriate standard of care was breached?

Third, did the wrong involve assessment of the patient's condition?

Fourth, did the wrong occur in the context of a physician-patient relationship? Was it within the scope of an activity the hospital is licensed to perform?

Fifth, would the injury have occurred if the patient did not seek treatment?

and Sixth, was the alleged wrong intentional?

The Supreme Court applied these tests to this case and found that the alleged wrong, the failure of the hospital to keep a wheelchair in proper working condition, was not sufficiently related to health care or professional services to fall within the MMA.

When an injured party seeks the help of an attorney in bringing a liability claim it is the attorney’s job to decide what type of claim should be brought. As here, just because the injury may have occurred to a patient in a hospital due to negligent behavior of a hospital employee does not necessarily make the case medical malpractice. Medical malpractice may not be the best legal theory to base a case on. A traditional negligence claim does not face the same damage limitations or medical review panel approval requirements as a medical malpractice claim.

Continue reading " The Difference between Medical Malpractice v. Ordinary Negligence " »

Slip and Fall claims are filed in courts everyday and most are dismissed because the injured party could not prove anything. Important in a slip and fall case is "timeliness": how soon after the incident a party filed a claim, got pictures of the accident area, hired an expert, etc. As you will see, the difference between a few days and a few weeks could make all the difference in a successful cause of action for a plaintiff. While accidents can occur almost anywhere, residents of New Orleans and other Gulf Coast cities know how difficult to navigate certain sidewalks and areas can be - to fail to file in time on a just claim would be a disaster if true harm has befallen a victim of such a fall.

In 1987, Mrs. Sellers was exiting a doctor's office when she slipped and fell on a sidewalk. It had been raining that morning and the sidewalk, although covered, was clearly wet. Mrs. Sellers claimed to have slipped in a puddle of standing water outside the office entrance. She argued that the sidewalk, because of a defect, collected excess water that contributed to her fall. In an effort to recover damages from minor injuries sustained in the fall, Mrs. Sellers hired a professional photographer to take pictures of the sidewalk.

Under LSA-C.C. arts. 2317 and 2322, to prove liability for a defective thing, you must show that the defect in the thing poses an unreasonable risk of harm to others, and that the defect indeed caused the harm. The plaintiff, in this case Mrs. Sellers, has the burden of proving that (a) the defective sidewalk created an unreasonable risk of harm to patrons leaving the office, and (b) that the defective sidewalk in fact caused
the harm in question.

There was no conclusive evidence to support a defective sidewalk theory, however, because two weeks after the accident, the Parish Commission had begun to break up the concrete sidewalk to install a handicap-access ramp. Here's where timeliness becomes a factor. Had Mrs. Sellers hired a photographer within a few days of her accident, the courts may have had some conclusive evidence to find that the sidewalk was indeed defective. In the photographs, the depressed area that allegedly collected excess rainwater looked like freshly chipped concrete surrounded by a pile of dust and debris. The pictures were useless because they failed to depict the sidewalk in the condition as it was the day of the accident.

The lesson learned from Mrs. Sellers' unfortunate set of circumstances is that potential plantiffs must move forward on their case as quickly as possible because the conditions surrounding the incident may change. Mrs. Sellers' case is an extreme example, but it illustrates the importance of moving on a claim before circumstances change. Had the pictures been taken a few days after the accident rather than a few weeks, Mrs. Sellers may have received compensation for the injuries sustained in the fall.

If someone trespasses onto another's land and is injured will the landowner be held liable for damages? It's a difficult question that has a variety of rationales for both sides of the issue. The answer could be yes, but only in limited circumstances.

In October 1998, 15 year old Hunter Racine was tragically killed after he trespassed onto the industrial property of the Goldwasser Moving and Storage Company at River Road and St. George Avenue in Jefferson Parish. Hunter, his brother Logan, and two friends entered the unfenced property without permission. First, they climbed onto an elevated tank tower and dropped pumpkins and a bowling ball onto parked trucks below. Then Hunter left temporarily and the others found an unattended locked truck with the keys in the ignition. Logan climbed in the passenger window and started the engine. For some reason the engine wouldn’t turn off and the car remained running, not moving, for several minutes. When Hunter returned he jumped on the running board of the truck, reached through the driver window, and attempted to shut it off. Suddenly the truck jumped into gear and began moving forward. Hunter was killed when he was trapped between the fence and the moving truck.

Racine’s family brought a lawsuit against Goldwasser (and others) alleging three different liability theories: attractive nuisance, strict liability, and negligence. Goldwasser filed a motion for summary judgment which was originally denied but then granted in the Louisiana Supreme Court’s 2002 reconsideration. The decision provides a good explanation of these three legal theories as they relate to landowner liability.

Attractive Nuisance

Under the Attractive Nuisance doctrine, a landowner may be held liable for injuries to children who trespass on their land when the injury is caused by a hazardous object or condition on the land likely to attract children. Some examples of an attractive nuisance include trampolines and swimming pools. The doctrine is in place to protect children who are unable to appreciate the risks they encounter.

While an unattended truck with keys in the ignition may seem to be an attractive nuisance, under Louisiana law the doctrine is typically only applied to children of a "tender age," not older children. The court found that Hunter, Logan, and the two other teenagers were old enough to know what they were doing was wrong and appreciate the dangers of their actions.

Strict Liability

Strict liability is liability that is imposed regardless of fault. No finding of negligence is required. Strict liability is reserved for situations that are so dangerous that the plaintiff need only prove they were injured and the defendant was responsible. Good faith and precautions taken are not a defense.