Louisiana Personal Injury Lawyer Blog

According to a recent study published by the Road Information Program (a nonprofit group that evaluates highway data), Louisiana has the second highest auto fatality rate in the nation. In 2008, Louisiana had 2.02 deaths for every 100 million miles traveled. Montana was the one state with more deaths, at 2.12 per 100 million miles. As noted in a recent editorial in the Louisiana Times-Picayune, “That translates into 4,782 people who lost their lives on Louisiana’s roadways from 2005 to 2008.”

Researchers found that many factors lead to the higher percentage of deaths, including poor road conditions. In fact, according to the study, 44 percent of major state and local roads are in “poor or mediocre” condition. Additionally, 13 percent of Louisiana’s bridges are structurally deficient and 16 percent don’t meet current design standards. Poor roads are those considered to have deficient lane width and lighting and lack barriers and paved shoulders. The study found that these factors played a role in as many as a third of the fatal or serious accidents.

While road conditions in Louisiana are bad, the state is working towards improvements and recently used $1.2 billion in state surplus money and $500 million in federal stimulus money to renovate highways and bridges. The article notes “safety projects such as the post and cable barriers on Interstate 12 in St. Tammany Parish and on Interstate 10 in St. James are examples of smart, life saving measures.”

How can Poor Road Conditions Cause an Accident?
There are several ways the design of a roadway can contribute to an accident. First, bad roads make it more difficult to see other drivers. They can also create dangerous obstacles or create increased susceptibility to weather. Signs that are inadequate or poorly placed can confuse drivers or make it harder to anticipate hazards. Lacking night time lighting, poorly visible road markings, and even the condition of the road surface itself can contribute to accidents.

Improperly maintained roads can also cause accidents. If debris is allowed to accumulate without being removed, potholes are not fixed, overgrown trees obstruct drivers’ line of site, snow is not removed after a storm, etc., the likelihood of accidents increases. Drivers should be aware of poor road conditions and adjust their behavior accordingly, just as they would while driving in adverse weather.

If the major cause of an accident is the improper design or maintenance of a roadway, injured parties may be able to collect damages from the state or locality responsible if they can prove negligence in the design or maintenance. These lawsuits are more complicated than a lawsuit against another driver, due to defenses of sovereign immunity that may be brought. Codified in the 11th Amendment to the U.S. Constitution, sovereign immunity protects the state from being sued in federal court. In Hans v. Louisiana, the Supreme Court of the United States held that the Eleventh Amendment re-affirms that states have sovereign immunity and are generally immune from lawsuit in federal court without their consent.

Sovereign immunity laws vary from state to state and analysis of them can be very difficult. If you are considering bringing a claim against the state for poor roads, make sure you have an experienced attorney on your side.

Under Louisiana law, police officers, troopers, and sheriff's deputies have a duty to take reasonable steps to protect the general public from dangerous situations on the road. This responsibility commonly includes removing foreign objects from the roadway or securing car accident scenes to ensure no further collisions occur. In general, an officer is charged with responding to any hazardous traffic condition to reduce the risk of accidents and injuries.

The case of Johnson v. Larson, 441 So. 2d 5 (La. Ct. App., 3rd Cir. 1983) presented a situation which tested the bounds of an officer's duty. Shortly before midnight on June 27, 1978, Johnny Johnson was driving his car west on La. Hwy. 10 in Vernon Parish. He happened to come upon his friend, Tannie Rhodes, whose car was experiencing transmission trouble. Rhodes pulled her vehicle onto the shoulder, completely clear of the travel lane. She left the headlights on and activated her car's hazard flashers. Johnson passed Rhodes, turned his car around, and parked on the shoulder directly facing Rhodes's vehicle. Johnson left his headlights on so he could see under the hood of Rhodes's car. Several minutes later, two Vernon Parish sheriff's deputies arrived at the scene and asked if Johnson and Rhodes were "having trouble." Rhodes answered yes, but no other words were exchanged. The deputies remained at the scene for a few minutes and, after receiving no request for help from either Johnson or Rhodes, they left. Soon after the deputies departed, a car heading west on Hwy. 10 driven by Matthew Larson, a soldier stationed at Fort Polk, swerved onto the shoulder of the road and collided with the rear of Rhodes's car. The impact forced the two parked cars together. Johnson happened to be standing between the parked cars at the time and sustained severe injuries to his legs as a result of the impact.

Following the incident, Johnson reached a settlement with Larson. He then brought suit against the deputies and Vernon Parish Sheriff's Department alleging the deputies' negligence in failing to take precautionary steps that could have prevented the collision by Larson's vehicle. At trial, after the close of the plaintiff's evidence, the judge granted the deputies' motion for dismissal finding that the officers were not negligent in their actions as they owed no duty to secure the scene under the circumstances. From this judgment, Johnson appealed.

The Court of Appeals reviewed several prior Louisiana cases to help determine what circumstances require an officer to secure a hazardous traffic condition in an effort to reduce the risk of further harm. In one case, it was determined that a deputy was required to secure an accident scene where one of the vehicles involved partially blocked a travel lane in the roadway. In another, the court confirmed that an officer is required to take action to prevent collisions at an intersection with a malfunctioning traffic signal. And in a third case, it was determined that an officer escorting a funeral vehicle procession had a duty to protect the procession from oncoming vehicles who would otherwise have the right-of-way.

In applying the principles contained in the case law to Johnson's situation, the court found that "the deputies, under the facts presented, did not have a legal duty to protect the parked vehicles against the unforeseeable traffic development that occurred in this case" (Johnson, 441 So. 2d at 9). The court noted several key facts, including that there were no obstructions to vision on the highway and that both Johnson's and Rhodes' cars were parked on the shoulder of the road, completely clear of the travel lanes. Both cars' lights were on, and Rhodes had activated her emergency flashers. Based on these facts, the court concluded that the two well-lighted vehicles parked on the shoulder created no obvious, dangerous condition for any other motorists. In the court's view, the deputies could not be expected to anticipate that a driver would leave the highway and strike Rhodes' vehicle. "To hold otherwise would place an unreasonable burden upon our law enforcement officers and agencies" (Johnson, 441 So. 2d at 9).

The Johnson case shows that although officers have a duty to protect the public, they are afforded some discretion in determining which situations warrant their intervention. While Louisiana residents can and should count on their law enforcement officers in emergency situations, the Johnson case serves as a caution that challenging an officer's decision not to render assistance is not necessarily a straightforward task.

Continue reading " Vernon Parish Car Wreck Leads Court to Explore the Duty of Police to Secure Scene of an Accident " »

Under Louisiana law, the doctrine of sudden emergency is a defense available to a defendant who is confronted with a sudden and unexpected situation of danger and who responds as a reasonably prudent person would under the circumstances. The doctrine serves to limit the defendant's liability even if it is later determined that he did not chose the ideal course of action in response to the sudden danger.

The Court of Appeal has expressed:

it is the settled jurisprudence of this state that a person is not obligated to exercise the same degree of care or judgment as is required under ordinary circumstances... A mistake of judgment or failure to adopt the best or wisest course for avoiding injury does not necessarily result in a finding of negligence. To contend otherwise is to attempt to exact hindsight instead of foresight from a motorist faced with a sudden emergency (Fouche v. St. Paul Fire & Marine Ins. Co., 153 So.2d 180 (La. App. 2d Cir. 1963).

The case of Vaughn v. Hebert, 333 So. 2d 304 (La. App. 1st Cir. 1976) provides an example of the doctrine. On the evening of October 30, 1973, Randy Herbert was driving his car on La. Hwy. 75 near Bayou Pigeon in Iberville Parish. Also in the car was Benny Vaughn. Hebert was traveling south on the two-lane highway. He saw a vehicle approaching from the opposite direction as it came around a curve and partially encroached into the southbound lane. Herbert observed the car for a few more moments and realized it had not returned to its proper lane of traffic. In an attempt to avoid a head-on collision, Hebert went off the blacktop onto the road's shoulder. When he attempted to return to the road, Herbert lost control of the car, went down the levee into a canal, and hit a tree. Vaughn, the passenger, was injured in the crash and sued Herbert for damages.

At trial, Herbert testified that "by the time I seen [the oncoming car], I didn't have nothing to do but get out of his way." Also, in response to a question about why he tried to pull back on the road, Herbert said, "I had a canal there, and I didn't want to go in it" (333 So. 2d at 306). On cross examination, Vaughn testified that everything "was happening pretty fast" and that he thought a collision with the oncoming car was going to occur. The trial judge, after a visit to the scene of the accident with the parties and their counsel, found that Hebert was confronted with a sudden emergency not of his own making and to which he did not contribute and, therefore, that he was not liable. The Court of Appeal affirmed the trial court, concluding that Hebert was "faced with a sudden emergency created entirely by the gross negligence of the approaching motorist" (333 So. 2d at 306).

The Herbert case illustrates that although drivers who encounter a dangerous situation are still required to exercise reasonable care, the standard takes into account the nature of the emergency. The law wishes to encourage drivers to take measures to avoid injuries whenever possible, and courts are reluctant to second-guess a driver's honest and reflexive response to a dangerous event.

Continue reading " Iberville Parish Car Crash Explores Doctrine of Sudden Emergency " »

The issue of whether a defendant breached a duty of care owed to the plaintiff in a negligence case is settled by examining the events that occurred in connection with the accident. Unfortunately for many plaintiffs, specific details about the defendant's conduct may not be readily available and, absent some legally enforceable demand, a defendant is unlikely to volunteer any self-incriminating information that may help the plaintiff build his negligence case.

Louisiana civil procedure provides an avenue for a plaintiff to obtain needed information about the defendant's conduct through "discovery" in litigation. Discovery is the phase of a law suit during which the parties can request information from each other, usually in the form of interrogatories (written questions) and requests for documents. The parties can also schedule depositions where witnesses are interviewed. Although there are some exceptions to the types of materials that must be exchanged through discovery, the intent is to level the playing field with respect to information about the case so that the parties can adequately prepare for trial.

The case of Simoneaux v. State of Louisiana Department of Highways, 106 So. 2d 742 (La. App. 1st Cir. 1958), illustrates the essential role that evidence obtained through discovery can play for the plaintiff in a negligence case. On the evening of August 25, 1955, Clement J. Simoneaux was driving in his car with his wife and her friend on La. Hwy. 1 in Plaquemine, Iberville Parish. At the point where Hwy. 1 crosses the Bayou Plaquemine, there was a lift span bridge--a drawbridge in which the center section would lift vertically, as one piece, to permit boats to pass below. On the evening in question, the lift span, after being raised for a passing boat, was returned to its original position. However, at the south end of the opening, the span did not seat itself fully. Instead, the end of the span stopped some distance above the level of the roadway.

Simoneaux had stopped his car south of the bridge, awaiting the opening of the gates and barricade to allow forward movement of vehicles driving north across the bridge. When the gates and barricades were raised by the bridge operator, Simoneaux proceeded onto the bridge and drove into the protruding span. The collision with the bridge damaged Simoneaux's car and injured him and his passengers.

The Court of Appeal evaluated Simoneaux's claim of negligence on the part of the bridge operator by focusing on "a variation of operating procedures pursued by the two operators of this bridge" (106 So. 2d at 745). During the lowering of the bridge, the operator did not descend to the roadway of the bridge to check that it was level after lowering the span, even though he knew that on some previous occasions the bridge had not completely seated itself when he operated it and could not view the span from his position. Instead, the operator simply relied on the bridge's automatic signaling device that indicated the span was seated. Furthermore, the chief operator of the bridge, who was not working that evening, testified at trial that it was his standard practice to descend to the rodaway of the bridge and check the levels of both approaches before removing the barriers and giving the go-ahead for the passage of vehicles over the bridge.

Accordingly, the court concluded that,

Inasmuch as the bridge failed to seat itself properly on previous occasions and for the reasons that the chief operator of the bridge testified that it was impossible to check the level of the bridge at the south end from the operator's elevated position, we believe that the defendant was on notice that the automatic signaling devices of the bridge could not be relied upon entirely and it was their duty to do more than merely rely on the signaling devices of the bridge" (106 So. 2d at 745).

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As a result, the Court of Appeal upheld the trial court's award of damages to Simoneaux and his passengers.

The evidence of the bridge operator's conduct, the history of seating problems with the bridge, and the differing approach taken by the chief operator were all facts not readily available to Simoneaux through simple observation. Presumably, the bridge operator and chief bridge operator would not have cooperated in sharing their stories with Simoneaux without being compelled to do so though discovery. Because discovery is only available to a plaintiff following the filing of an initial complaint, it is essential for a plaintiff to retain competent counsel who can evaluate a claim and employ the most effective strategies in discovery for obtaining the information required to prevail in court.

Continue reading " Bridge Accident Case Shows Value of Litigation Discovery for Plaintiff " »

Two tragic interstate car accidents during the weekend of April 9 through the 11th took three lives along Interstates 10 and 55 in two Louisiana Parishes. An Illinois man passed away on Interstate 10 in St. John Baptist Parish after his SUV was struck by a speeding car on Friday, April 9, according to authorities.

The accident happened around 10 p.m. when Aeham Hama, 22, of Gretna, LA, was driving his Crown Victoria over the speed limit. The collision came as a result of Hama switching into the eastbound left lane behind a Ford Explorer driven by Joel Redenius, 39, of Rockford, Ill., according to a Louisiana State Police news release.

Hama rear-ended Redenius, and Redenius' vehicle rolled several times before falling off the elevated highway into a wooded area. Redenius was pronounced dead at the scene. Hama was taken to Ochsner Hospital in Kenner, LA with moderate injuries. State police believe speed was a factor in the crash and expect to bring charges against Hama. As of April 10, toxicology reports were pending.

Additionally, a motorcycle accident on Saturday, April 10, around 9 p.m. on Interstate 55 in Tangipahoa Parish took the lives of two Tennessee residents.

David Chapman, 47, of Ashland City, Tenn. was driving his motorcycle southbound on Interstate 55. A pickup truck driven by Andres Landor, 39, of Carencro, LA, and a car driven by Steven Smith, 25, of Walker, LA, were traveling behind the motorcycle, according to a Louisiana State Police spokesperson. For an unknown reason, Chapman lost control of the motorcycle and it fell on its right side. Both Chapman and his passenger, Cindy Conatser, 39, of Goodlettsville, Tenn., were thrown from the bike and came to rest on the center line of the southbound lanes. Both were hit by the two following vehicles and were pronounced dead at the scene by the Tangipahoa Parish Coroner's Office.

Chapman and Conaster were both wearing helmets, and as of April 11, 2010, toxicology reports were pending. Smith and Landor were not injured in the accident and both were wearing their seatbelts. Both submitted to breath alcohol tests which registered at .000g%.

If you have been injured or have lost a loved one in a tragic interstate car 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. Negligence, for example, can be a dominant issue when determining accountability in an accident. If a driver was not exercising the proper care or safety while driving, this can lead to them being found culpable for the incident. Additionally, if the police have assessed blame through a ticket or arrest, this may be introduced as a very potent example when making a claim against the driver's insurance company. Roadway flaws, such as sharp curves or glare from elements along the side can lead to governmental bodies being found culpable in incidences where there was constructive notice.

These are but a few examples of how the victim of a car accident can pursue financial compensation for the damage(s) they have incurred.

Continue reading " Two Interstate Accidents Cause Fatalities in St. John Baptist, Tangipahoa Parishes " »

Determining fault is central to the resolution of every negligence case. Typically, the plaintiff alleges the defendant's fault, and it is up to the court to determine whether the plaintiff has carried this burden. In the event that more than just one party was responsible for causing a particular accident, it is up to the court to "apportion" fault. That is, the court must decide how much each party contributed to the overall situation, and assign them responsibility for the appropriate percentage of the damages.

In Cashio v. Department of Transportation, 518 So.2d 1063 (La. Ct. App. 1st Cir. 1987), the court undertook this type of apportionment. Around noon on March 14, 1984, Jo-Louise Cashio was driving her 1984 Datsun 260-Z north on Louisiana Highway 77 in Iberville Parish. Passing the shop of a friend, Delores Nall, Cashio beeped her horn and waved. Seconds later, Nall saw Cashio's car leave the paved portion of the highway in a cloud of dust. Upon re-entering the road, Cashio lost control of her car, crossed the center line, and ran into a ditch. Cashio's car flipped and left her with severe injuries. Cashio filed suit against the State of Louisiana through the Department of Transportation and Development (DOTD) alleging that the shoulder of the road was defective. Cashio claimed that the shoulder was below the minimum design standard because it was too narrow and was unsafe because of its deep downward slope toward the ditch.

At trial, the court heard testimony from a number of expert witnesses on the road's design. Relying on well-settled law that "the DOTD is under a duty to maintain the highways and shoulders in a reasonably safe condition," the trial judge determined that the DOTD was 100 percent at fault for Cashio's accident and awarded her approximately $111,000 in damages.

On appeal, the Court of Appeals more closely examined Cashio's role in the crash. The court noted that "motorists have a duty both to maintain control of their vehicles and to maintain a proper lookout," and concluded that if Cashio had been "diligent in her duty to maintain a lookout, she would not have strayed from the roadway." Further,

"there was a substantial relationship between Ms. Cashio's negligently running off the highway and the resultant damages sustained by her. Because we find that the plaintiff's negligence was a cause-in-fact and legal cause of the accident, we must conclude the trial court committed manifest error in concluding that Ms. Cashio was free from fault in this accident."

The court then turned to the matter of fault apportionment under Louisiana law:

" In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed." Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985).

The court also identified several other factors explained in the Watson case, including (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk the conduct created; (3) the significance of what was sought by the conduct; (4) the capacities of the actor; and (5) any extenuating circumstances which might require the actor to proceed in haste or without proper thought.

After weighing these factors, the court concluded that the DOTD's fault in causing the accident was much less significant than Cashio's own. In the words of the court: "Had Ms. Cashio kept her car on the highway, the accident would not have occurred." The court assigned 25 percent of the fault to the State of Louisiana through the DOTD, and 75 percent of the fault to Cashio. This resulted in a reduction in Cashio's award to only about $28,000.

The Cashio case demonstrates that apportioning fault can be a complicated task for the trial court in any negligence case. A plaintiff must expect to have their own fault, if any, taken into consideration by the court. For this reason, it is critical that a plaintiff obtain competent counsel who fully understands how courts apportion fault.

Continue reading " Iberville Parish Car Crash Shows Court's Role in Apportioning Fault " »

Under Louisiana law, store owners are required to exercise reasonable care to keep their stores free from conditions that could be hazardous to customers and visitors. When a customer is injured while browsing the aisles, the merchant's efforts to maintain a safe premises are often given great scrutiny. To win a negligence suit against a merchant for an injury that was due to an unsafe condition of the premises, the customer is required to prove the following three elements: (1) the condition presented an unreasonable and foreseeable risk of harm to the customer; (2) the merchant either created or had notice of the unsafe condition; and (3) the merchant failed to exercise reasonable care to remedy the condition.

On the element of notice, the customer/plaintiff has two options. She can show "actual notice," which requires her to prove that the merchant had specific knowledge of the dangerous condition (usually occurring when the condition had been previously reported to a store employee). Alternatively, the plaintiff can rely on "constructive notice" if she can show that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care (normally proven by showing that the store failed to regularly clean/go through the store looking for problems).

The analysis of the constructive notice issue was of central importance in the case of Gregory v. Brookshire Grocery Co., No. 45,070 (Ct. of App. La., 2d Cir., 2010). On October 21, 2003, Lena Gregory entered the Brookshire Grocery Store in Farmerville. Just prior to her arrival, a young girl had become ill and vomited in several places around the store as she attempted to find the restroom. Gregory noticed the vomit on the floor near the entrance to the store and carefully made her way around it. Approximately 15 minutes later, as Brookshire employees cleaned up in other areas of the store, Gregory slipped and fell on a spot of a "clear substance about the size of a baseball." It was unknown what the substance was, whether it was related to the girl's sickness, how it got on the floor, or how long it had been there.

At trial, Gregory argued that the store had constructive notice of the spot of clear substance on which she slipped. She complained that Brookshire was aware of a known danger (vomit/liquid in several areas) and took no steps to warn customers of the hazard. The court, however, disagreed with Gregory's theory of constructive notice. Noting the store employees' efforts in immediately addressing the numerous soiled areas created by the sick child, the court concluded that Brookshire had an effective system for cleaning spills. Because Gregory could not prove what the clear substance was or how it got on the floor, she was unable to "establish, even roughly, how long the substance had been on the floor." Accordingly, the court held that Gregory did not meet her burden or proof with respect to the essential element of notice, and her claim against the store was dismissed.

The court's decision in the Gregory case demonstrates the substantial burden facing an injured customer in a negligence case against a store owner. The failure to establish just one of the essential elements means that the customer, like Lena Gregory, will not prevail.

Continue reading " Slip-and-Fall at Farmerville Grocery Store Shows Plaintiff's Burden in Negligence Suit " »

If you have slipped and fallen in a Louisiana store, you may not realize you are not alone. What's more, you might not understand that you may have the legal rights to make a claim against the store for the incident. Just recently a lawsuit was filed in western Louisiana by a customer of a store who injured herself on the premise. These types of cases are classically known as "slip and fall" case. The victim in this case, Leona Jordan, was shopping at Walmart when she slipped on water that had accumulated on the floor and fell. Jordan was injured and hurt her hip, back, knee, and leg.

These types of accidents are far from rare. In fact, earlier this month Ellen Hickman injured herself at a Louisiana Dollar General store. She slipped and fell on a small plastic toy. As a result of the accident, she hurt her lower back, back of her head, ankle, and right leg.

If you have had a similar experience, you should know that Louisiana has laws in place to protect you.

A Merchant's Duty to Customers on Premises
Under the law in place in Louisiana, a merchant or store owner owes a duty to all people who are on their premises. This duty requires the merchant "to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition." La. R.S. 9:2800.6(A). This means that if you enter a store, the store owner has a duty to act with reasonable care to ensure that the aisles and floors are clear from hazards. If the store owner breaches this duty, you may be able to sue.

What a Victim Must Prove to Establish a Claim Against a Merchant
If you have slipped and fallen in a store, you must establish three basic elements to impose liability on the store owner. These elements are required under Louisiana Revised Statute 9:2800.6(B).

First, you must show that the condition presented an unreasonable risk of harm to you and that risk of harm was reasonably foreseeable. Second, you must be able to show that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. For example, if a merchant was notified about the dangerous condition by another customer prior to your accident, the merchant had notice. A merchant would have "constructive notice" if you could prove that the condition existed for such a long period of time that the merchant should have known about it had he exercised reasonable care. For example, you can likely establish "constructive notice" if you slip on milk in the milk aisle of a grocery store if the spilled milk was lying on the floor for several hours. Lastly, you must be able to show that the merchant failed to exercise reasonable care. This element would be established if you could show that the manager was notified about the hazard, but failed to have someone clean it up. This would be a failure to exercise reasonable care, as a "reasonable" merchant would clean up a slippery substance on the floor that may cause harm to customers.

As you can see the judiciary has a system of laws in place to prevent claims from being made too loosely while at the same time making sure that if someone has been injured that their rights are protected. Should you be involved in a similar incident, it is important to recognize your legal rights while at the same time hiring an attorney that can represent you in a court of law. In the case of a slip and fall there might also be evidence and documentation that must be preserved in order to successfully litigate.

Continue reading " Shreveport Slip and Fall Illustrates Law's Approach to Liability " »

Despite BP’s best efforts, clean-up volunteers will be able to file legal claims against the oil company if they arise. BP tried to force volunteer responders to promise they will not file claims but a federal judge has determined that will not be allowed. George Barisich, President of the United Commercial Fisherman’s Association in Louisiana asked for an emergency restraining order against BP, comparing the request to:

Demanding that a person running into their own burning home sign a release limiting or giving up their claims against the arsonist who caused the fire...At best it is an ill-conceived approach to the crisis at hand and has the unforeseen consequences of causing further--and irreparable--injury to the citizens of Louisiana. At worse, it is a dastardly effort to compromise the rights of those citizens when they are the most vulnerable.

U.S. District Judge Helen G. Berrigan agreed with Barisich and granted the restraining order, finding that the agreements are unconscionable and that any agreements that had already been signed are null and void.

The BP oil plume already has covered over 4,000 miles of seawater and coastal areas, threatening fish, oysters, crabs, shrimp, birds, and their habitats. As such, the need for volunteers to stem the tide of destruction is high and the attempt by BP to force volunteers to sign these agreements has stood in the way. According to Barisich, before BP let him assist in protecting his own livelihood it demanded he sign a master vessel charter agreement, the same agreement it was forcing all volunteers to sign. Because fishermen are providing emergency cleanup services in their own boats, they are “vessel owners” in BP’s charter agreement with BP serving as the “charterer.” Under the charter agreement, if the vessel owner has a claim against the charterer or is aware of potential claims, they must provide written notice within 30 days. If a claim is not addressed within 30 days it will be released. The agreement also provides that the vessel owner will not hold the charterer liable for anything connected to BP’s performance, including the vessel owner’s death. The agreement holds fisherman to the same standard of oil-spill remediation experts when they are actually laymen and victims. In addition, any fishermen who sign the agreement are not allowed to disclose any information discovered during the cleanup regarding the oil spill, including sharing information with other disaster victims.

Judge Berrigan found that the charter agreements limited potential plaintiffs’ rights too much and therefore cannot stand. In contract law, an unconscionable agreement is one with terms that are unfair to one of the parties to the contract (here either BP or potential plaintiffs). Contracts that are entered into with inadequate consideration (payment exchanged for something else) may be held unconscionable. This is particularly relevant if there is evidence that one party to the contract has superior bargaining power to the other and could therefore insert provisions into the contract that overwhelmingly favor the interests of that party.

In the case of this incident, BP, as a huge multinational corporation, has superior bargaining power to lay-fisherman trying to assist in efforts to clean up contaminated areas and protect their businesses. As such, BP could exert their influence over the fisherman and other volunteers and essentially force them into signing agreements that make them give up much more (legal rights, the opportunity to sue BP) than they are getting (the chance to help clean up). In finding contracts unconscionable, courts have flexibility to determine how to best correct the situation. They may insert fairer provisions into the contract itself, or, as happened here, simply declare the contract void.

A recent Louisiana Court of Appeals decision does a good job of explaining the elements of a medical malpractice claim and some pitfalls that might be encountered along the way.

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Posted In: Civil Matter , Expert Testimony , Litigation , Medical Malpractice

Louisiana's Supreme Court, in an April 2007 opinion, expounded on the vast discretion an appellate court is to give to a jury's verdict on review.

From December 2000 to January 2001, Thurman and Rosemary Kaiser, a married couple in their mid-70s, were involved in three auto accidents - one in Jefferson Parish and two in Orleans Parish. Claims the couple may have had regarding the first and third accidents were settled out of court. However, regarding the second accident, which occurred on January 15, 2001, when the couple's vehicle was rear-ended by Harry Hardin, the couple filed suit. Prior to trial, Hardin stipulated to liability. He later testified that his vehicle hydroplaned into the back of the plaintiffs' vehicle, causing the accident. The case proceeded to a jury trial on the issue of damages.

After testimony from plaintiffs and defendant, Dr. Donald French, an orthopedic surgeon who treated both of the Kaisers, Paul Van Hoose, a claim representative of State Farm, Dr. Wendy Jamison, a neurologist who treated Mrs. Kaiser, and Dr. Jeffrey Sketchler, an orthopedic surgeon who treated both of the Kaisers, the jury rendered a verdict in favor of the plaintiffs, awarding Mr. Kaiser $6,500 in total damages, including damages for past and future medical expenses as well as general damages, and awarding Mrs. Kaiser $20,000 in total damages for past and future medical expenses as well as general damages.

Though the jury's verdict was in favor of the plaintiffs, they moved for a new trial, which was denied. They then appealed, seeking review of the damages awarded. Louisiana's Fourth Circuit Court of Appeal amended the judgment, and increased both plaintiffs' damages. Defendant Hardin then filed for certiorari with the Supreme Court of Louisiana, which was granted.

The Supreme Court began by discussing the standard of appellate review that the Fourth Circuit should have used when evaluating a jury's award of damages.

General Damages
The Court first focused on general damages, which are damages that cannot be definitely measured in monetary terms. They involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style.

The Court provided that in reviewing an award of general damages, vast discretion is accorded to the trier of fact, in this case, the jury. This vast discretion is such that an appellate court should rarely disturb an award of general damages. The role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. The inquiry is whether the trier of fact abused its discretion in assessing the amount of damages.

The jury awarded Mr. Kaiser the amount of $3,500 in general damages and Mrs. Kaiser the amount of $13,300. The court of appeal increased both of these amounts to $30,000, pointing to the testimony of doctors French and Sketchler, who both testified that it would be unusual to not have experienced some degree of pain at the time of the accident, and the appellate court's own observation that "[i]t is not a stretch to take notice that even a minor injury to an elderly person could prove to be relatively substantial."

However, the Supreme Court, based on its review of the record, found that the jury's awards did not represent an abuse of discretion. The Court noted that though the medical testimony revealed that both of the Kaisers suffered medical injuries, the only evidence connecting the injuries to the second auto accident as opposed to the first, or third, or some other pre-existing condition, was their own testimony.

Special Damages

The Supreme Court then focused on the award of special damages, which are those that have a ready market value. These include amounts such as those for past and future medical expenses and lost wages. The Court provided that in reviewing a jury's factual conclusions regarding special damages, an appellate court must satisfy a two-step process: 1) there must be no reasonable factual basis for the trial court's conclusions, and 2) the finding must be clearly wrong.

The jury awarded Mr. Kaiser $1,500 for past medical expenses, and the appellate court increased that amount to $4,180.50. The jury awarded Mrs. Kaiser past medical expenses in the amount of $3,500, and the appellate court increased this amount to $7,734.86.

However, after the Supreme Court's review of the record, medical testimony indicated that Mrs. Kaiser had suffered a stroke, and that both of the Kaisers had age-related degenerative changes, which pre-dated the second auto accident.

Considering all the evidence, the Supreme Court concluded that there was a reasonable factual basis for the jury's finding that only part of the medical expenses claimed by the plaintiffs were attributable to the second accident.

To conclude, the Supreme Court held that the jury's general damage award did not represent an abuse of the jury's vast discretion and that the jury's award of special damages was consistent with its factual findings. The court of appeal erred in disturbing the awards, and the judgment of the trial court was to be reinstated.

According to an AP report, BP yesterday admitted that more oil than it originally estimated is leaking into the Gulf. This news, coming roughly one month after the Deepwater Horizon oil rig exploded and sank, is heightening Gulf Coast residents' worries about the amount of damage likely to occur. A spokesman for BP, Mark Proegler, said that efforts over the weekend to insert a tube into the leaking pipe were successful, and that the tube is now siphoning off 210,000 gallons of oil per day. That figure is more than the total amount of oil BP and the U.S. Coast Guard originally estimated was leaking from the well, and it is clear that the tube is not capturing all the escaping oil. Mr. Proegler declined to estimate how much oil is still spewing into the Gulf, but some scientists who have viewed the underwater videos of the leak have suggested it could be as much as ten times the official estimate.

Meanwhile, crude oil began washing into the marshes on the state's southeastern tip and the Breton National Wildlife Refuge, where scientists believe oil has killed some rare birds that reside there. "This is the heavy oil that everyone's been fearing that is here now," Gov. Bobby Jindal said during a boat tour of the wetlands. According to the National Oceanic and Atmospheric Administration, as of May 17, 29 miles of Louisiana's coastline had already seen oil.

Adding to concerns over BP's handling of the disaster are reports of the company's efforts to limit the public's view of fouled beaches in Louisiana. CBS news reports when journalists attempted on Tuesday to visit an oil-covered beach in South Pass, they were turned away by BP contractors and two U.S. Coast Guard officers aboard a boat. The officers threatened to arrest the reporters, even though the government had not closed the beach to the public. The reporters captured video of one of the officers saying, "This is [sic] BP's rules, not ours."

According to the Times-Picayune, other beach areas impacted by the oil sludge include Trinity Island, Whiskey Island, the Chandeleur Islands, Fourchon Beach, Raccoon Island, and Grand Isle.

Finally, in an effort to help those looking to make claims against BP, Louisiana Senator Mary Landrieu initiated the process of making funds available for the assistance of filers. The legislation, which would authorize $20 million in EDA grants to help businesses and individuals prepare claims with BP over the Deepwater Horizon spill, also provides funding for the establishment of an oversight panel. This advisory board would, in conjunction with technical experts, monitor the claims process.

In a press release the Senator placed online, the Louisiana politician noted

"Filing claims can be an extremely technical and complicated process," Sen. Landrieu said. "This legislation would help ensure our fishermen, shrimpers, oystermen and other businesses can cut through red tape and file accurate claims. The transparency and oversight created by this bill is an important step in fairly and fully compensating Gulf Coast businesses for their losses from this unprecedented disaster."

Please return to this blog often for further updates.

Continue reading " BP's Estimates for Oil Leak Significantly Lower than Real Amount " »

The roadways are a dangerous place for any individual, regardless if they are driving or merely a pedestrian. Because of environmental dangers as well as a wide variety of mechanical and human errors that can occur as cars drive across this country, it is important to understand the complexities of the law. Accidents involving pedestrians and cars happen all too often and the law does not entirely back the pedestrian in all incidences.

According to the St. Mary and Franklin Banner-Tribune, a pedestrian was struck and killed by an automobile on Saturday April 10th while walking along the U.S. 90 Service Road in western St. Mary Parish. The pedestrian was Danny Gautreaux, 52, of Patterson. Mr. Gautreaux was walking eastward on the westbound lanes of the U.S. 90 at Penn Road around 9 p.m. when he was struck by a 68 year-old woman driving a 2001 Ford Taurus. Louisiana State Police spokesperson Stephen Hammons took the occasion to remind pedestrians that Louisiana state law demands that they walk on sidewalks where sidewalks are provided. When there is no sidewalk, pedestrians are expected to walk on the shoulder of the road against the flow of traffic. Gautreaux was walking in the traffic lane when he was struck. He was pronounced dead at the scene by the St. Mary Parish Coroner. A press release reveals that Gautreaux was believed to be walking from his vehicle which had run out of gas near the site of the crash.

Pedestrians should note that they do not always have the right of way. Under Louisiana law (R.S. 32:211) pedestrians have the right of way in crosswalks whether traffic-control signals are in operation or in place or not. Vehicles are expected to slow down or stop to yield to a pedestrian within a crosswalk but the law also provides that it is unlawful for pedestrians to "walk along and upon an adjacent roadway" where sidewalks are available (R.S.32:215). Where there are no sidewalks, pedestrians walking along a highway are expected to walk only on the left side of the roadway or its shoulder facing approaching traffic. Even if a vehicle happens to break down or run out of gas, pedestrians should not engage in soliciting rides or help by standing in the roadway. (See R.S. 32:216).

Automoble drivers are also responsible for exercising proper due care when coming in contact with pedestrians. Under R.S. 32:213, drivers should give warning by sounding the horn whenever necessary to alert a pedestrian and drivers should exercise extra precaution if a child or an obviously confused person is observed on the roadway.

The expectations of drivers are elevated in the event the pedestrian is in any way handicapped. Blind pedestrians, in particular, are a special exception to the standard right of way rules. If a driver encounters a visually impaired pedestrian using a white cane or a guide dog, the blind person has the right of way at all times (R.S. 32:217). Blind pedestrians might be startled by horns or shouts so these are not proper ways to alert the blind person. When driving electric or hybrid vehicles, extra caution should be exercised when encountering a blind pedestrian because the near silence of these automobiles may prevent the blind person from realizing that the vehicle is present.

Whether walking along the road or driving your car while coming up on a pedestrian, it is important to understand the legal responsibilities that all of us face while on the road. Not merely relevant to any possible litigation, properly signaling and careful conduct can prevent a life-changing event from taking place that no one would ever want to be involved in. If you or someone you know has been involved in an accident involving a car striking a pedestrian, it is important to get legal counsel immediately because of the wide variety of implications and problems that can develop on either side of the matter.

While a plaintiff may have the best case possible, things do not always work out the way they should. Lawsuits don’t just fail on their merits. Sometimes not following procedural deadlines or simply not taking action at all can spell doom as well. In an April 2010 decision, the First Circuit Louisiana Court of Appeals affirmed the dismissal of Shirley W. Fleischmann of Baton Rouge's claim against Keith Henderson and his insurance company. They did this because three years had gone by with no action taken to move the claim forward, thus bringing into play the Louisiana Abandonment Statute.

The claim arose when Henderson’s car (driven by Jennifer Parker) struck and killed Thomas E. Fleischmann while he was walking along the roadway. Ms. Fleischmann was the victim’s widow and included Henderson and his insurance company as parties in her wrongful death lawsuit filed in April 2002. The State of Louisiana (Department of Transportation) was named as a party as well but was dismissed in 2005 because effective request for service was not made within 90 days of commencement of the action.

In September 2008 Ms. Fleischmann filed a motion for a status conference to declare she intended to move forward against Henderson and his insurance company. In December of that year both parties filed a motion and order to be dismissed from the lawsuit as well because pursuant to LSA-C.C.P. art. 561 no action had been taken for three years. The trial court granted the order. Ms. Fleischmann filed a Motion to Reconsider the Ruling and the matter was heard in court in February 2009. The district court affirmed the dismissal and Ms. Fleischmann appealed claiming that the hearing previously held on the Department of Transportation’s Motion to Dismiss was a step in the prosecution or defense that interrupted tolling on the abandonment of her lawsuit against the other defendants. The Court of Appeals disagreed.

Louisiana Code of Civil Procedure article 561 (1) provides “that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” The application of the statute is automatic and does not require action by either party.

The record of this case indicates that no sufficient action was taken from September 2002 to June 2005 when the Department of Transportation moved to dismiss.
The Louisiana Supreme Court has recognized that the actions of one un-served defendant can preclude abandonment claims as to other defendants. However the Court found that principal case where that occurred is distinguishable from this one in that Fleischmann did not continuously take part in discovery or given any depositions. In fact, nothing whatsoever occurred between the filing of Henderson’s insurance company’s Answer and the Motion to Dismiss. “The failure of a plaintiff to have a party served is not moving the case forward to hasten the matter to judgment.” As such, the action of an un-served party to obtain dismissal is not a step towards prosecution either and does not preclude the application of the abandonment statute.

As this case demonstrates, lawsuits that have a good legal basis may fail if plaintiffs do not take appropriate action to move forward in a timely manner or if parties are not served as required under the law. Here, Ms. Fleischmann may have been successful, or at least gotten her case to trial, if she was properly informed of procedural rules and had been able to follow them. An experienced attorney will help you not only analyze possible legal claims but also ensure that rules are followed to the letter if you choose to file a lawsuit.

The Louisiana Court of Appeals' 1979 ruling in Thompson v. Iberville Parish School Board provides insight into what factors should be considered when asking if a teacher has inappropriately punished a student. This decision reversed a previous ruling in favor of an Iberville Parish elementary school student and found in favor of the school and teacher.

12 year old Bryan Wilson was in a music class at St. Gabriel Elementary school when his teacher extended his leg and pushed him with his foot in the right buttock. The teacher claimed that it was the easiest way to get the unruly student’s attention and that he had been reprimanded previously to turn around and pay attention to no avail. Bryan on the other hand, claimed the kick was extremely hard, causing him to cry out in pain and even miss several days of school. The trial court found in Bryan’s favor and awarded his mother $500 on his behalf for pain and embarrassment suffered. They found that although corporal punishment was acceptable under Louisiana law (and teachers were provided with limited liability from civil suit), the choice of action went beyond what was considered reasonable. To the trial court, the use of a foot for corporal punishment was unreasonable no matter how much force was involved.

The Court of Appeals disagreed, however, and reversed the judgment, pointing to the lack of evidence of any serious injury. Bryan was examined by the school principal and a doctor that same day and there was no visible evidence of injury, nor did any abnormality appear on an x-ray. In addition, evidence had been presented at trial that Bryan was a normal, healthy child who did have a tendency to act up at school. The Court of Appeals found that although there were few situations where a kick, no matter how light, would be reasonable, this was one and that the teacher merely acted to get Bryan’s attention, not inflict pain.

While the law in Louisiana regarding corporal punishment is not identical today, it has not changed that much and corporal punishment in some forms still legal. In La. RS 17:223 the law states that:

A. Every teacher is authorized to hold every pupil to a strict accountability for any disorderly conduct in school or on the playground of the school, or on any school bus going to or returning from school, or during intermission or recess. Each parish and city school board shall have discretion in the use of corporal punishment. In those cases in which a parish or city school board decides to use corporal punishment, each parish or city school board shall adopt such rules and regulations as it deems necessary to implement and control any form of corporal punishment in the schools in its district.

While the statute gives parishes and school boards discretion in the choice of whether to use corporal punishment, it does not specifically define which types of punishment is appropriate. As such, in asking the question of whether a teacher’s actions were reasonable or excessive, the factors considered by the Court in are still relevant today. Specifically:

What was the age and physical condition of the student?
How serious was the student’s misconduct?
What was the nature and severity of the corporal punishment?
What was the teacher’s motive in inflicting the punishment?
Did the student have past behavior problems?
Were other less severe means of discipline available?

If you believe your child was punished inappropriately while at school, and they were injured as a result, you may have a claim for damages against the teacher or school district involved. Consult an attorney today to discuss a potential claim and review your legal rights in the matter.

In the face of the looming oil slick many estuaries and fishing grounds are being closed, leaving hundreds of Louisiana fishermen out of work. As the oil pours into the Gulf, many fishermen are wondering what's next. While many questions are still up in the air there are a number of issues that fishermen need to be aware of.

The Oil Pollution Act of 1990
The Oil Pollution Act is a federal law that, among other things, allows an affected fisherman to file a claim against BP for his lost profits caused by the oil spill in addition to any other claims he has (i.e. property damage).

For example, if you are a shrimper, and your grounds have been closed off because of the oil spill, you can submit a claim for profits that you lost during the time the grounds were closed. To be clear, this remedy is only for profits and not total revenue. When trying to figure out how much you have lost subtract what you normally bring in during this season minus whatever costs you normally have.

In order to recover for your wages the spill must be the reason why you haven't worked. If this is the case then you can complete a claim. The claim will have to include a specific sum (your lost profits during the time the estuaries were closed), it must be presented to BP, and it must be submitted within three years.

In order to best ensure recovery you will need documentation. The Act requires that parties: document damaged property, make a showing of lost profits, show the amount of earnings in similar seasons, list any alternative employment, and list any savings to overhead as a result of the spill.

The best methods of doing all of this are:
- photographs
- tax returns, income statements, balance sheets, and cash flow statements from the past three years
- your expected profits from this year
- Newspaper reports that describe the spill
- Reports from emergency respondersópolice, fire department, etc

Submitting your claims involves three steps:
1) Write the claim. You can develop your own document, utilize the appropriate form at http://www.uscg.mil/npfc/Claims/claims_docs.asp#claim_guide, or contact a lawyer.
2) When the claim is complete attach proof of your losses to it (the photographs, tax returns, etc from the list above).
3) Mail it all to the National Pollutions Funds Center, Suite 1000, 4200 Wilson Blvd, Arlington, VA 20598-7100.

A successful claim will grant a fishermen his expected revenue substracted from his typical costs during the time in which he is unable to work due to the oil spill.

The $75 million cap
The OPA seems like a blessing, but it also limits liability in lost profits situations. While there is no limit to what BP will have to pay regarding oil clean-up, the current state of the Act caps economic damage pay outs at $75 million. The expected impact is likely to be far greater than $75 million given how many people are going to be affected by the spill. Anyone who lost profits or income because of the spill will qualify under the OPA, which means an almost unlimited number of hands reaching into a limited fund. While the OPA also created the Oil Spill Liability Trust Fund in anticipation of such an event, it is unclear how the Fund will be utilized in this spill.

Congress and the White House noticed this cap problem and, as of Monday of last week, are working on legislation that will increase the cap to $10 billion; however, it is unclear if the new proposed bill will act retroactively.

Your Legal Rights
It is important that people making claims to BP be careful and not sign or agree to anything until speaking with an attorney. It is possible that, by accepting money from the oil conglomerate, individuals affected by the spill may be signing off their right to pursue more damages in the future. Further, by speaking with an attorney, you may find out you are entitled to more than you had previously assessed. If you have any questions regarding the spill please contact the oil spill experts at Berniard Law Firm.

In response to the financial hardship being faced by small business owners and employees of many different Gulf industries, BP has opened an assortment of claims offices that can help individuals looking to fill out their forms. Before visiting these sites, claimants are asked to call 1-800-440-0858.

Additionally, the Small Business Administration has opened offices where owners may discuss options available to them under the SBA's Economic Injury Disaster Loan program.

Click here for the addresses of the claims center nearest you.

Courtesy of the Times-Picayune, a graphical representation of the widespread oil spill and where it will be affecting Louisiana in the next two days

With so many fishermen left out of work, individuals throughout the Gulf Coast are beginning to worry about their future. The Oil Pollution Act provides a legal solution but the ensuing lawsuits will not be helpful in the present. There are two British Petroleum programs that affected fishermen need to be aware of: their claims program and the Vessel of Opportunity program (VOP). These programs can provide immediate assistance for unemployed fishermen.

On its website and in many press releases BP has promised to take full responsibility for the damages that the oil spill has caused. This has included paying out lost-wages claims to fishermen. Under this program fishermen can recover a month in lost wages. Be aware that this recovery is handled by BP, not the National Pollution Funds Center or a court. BP will make a three-year average of a claimant's income between January and March and pay a one month settlement. This settlement can affect a fisherman's recovery if he later decides to sue. Currently the pay outs are around $5,000. You can contact their claim center at 1-800-440-0858. If you are not satisfied with their resolution, then you can contact the National Pollution Funds Center at 1-800-280-7118.

BP is also taking on paid volunteers to help in the clean up effort under their "Vessel of Opportunity Program." Through this program BP employs fishermen to deploy booms in order to stem the flood of oil. BP provides much of the equipment and training to those taking part. While BP will pay fishermen who take part, it is unclear how many boats BP will hire. The last count was around 700, far less than the number of fishermen who are now unemployed.

Fishermen who take part in BP's remedies need to be aware that it can affect their recovery under the Oil Pollution Act. The Act requires that a lost profits claim note any alternative employment that a claimant takes. So if you take part in the Vessel of Opportunity Program you will have to note it in your claim. Any money you make from the program might be deducted from your ultimate OPA recovery. As a result it is a very important decision to make regarding whether the claim is more effective with or without these work opportunities.

Additionally, if you settle with BP then you might give up your rights to a claim under the OPA if the settlement is final. At the very least a settlement will be taken into account if and when you file an OPA claim. For this reason alone it is essential that those who receive offers from BP consult with an attorney in order to insure their legal rights are not hampered by awkward wording or unfair practice that so many have faced in the wake of storms and insurance company settlements.

If you have any questions regarding the spill please contact the oil spill experts at the Berniard Law Firm.

Recently, we discussed the availability of funds under the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) for compensating Louisiana residents who suffer property damage as the result of an oil spill. Claims for oil damage to boats are treated as a separate category from other types of personal property under the OPA.

According to the U.S. Coast Guard's National Pollution Funds Center web site, the owner of a boat can submit a claim for the cost of removing oil stains from his vessel (including its interior furnishings like upholstery and carpeting) so that the boat is restored to its pre-fouled condition. Claims can also be filed for damage to mechanical parts of the boat, such as an outboard motor, rudder, anchor winch, etc.

As with other property claims under the OPA, claimants must meet a series of specific requirements in order for their claims to be accepted by the National Pollution Funds Center. The claimant must prove that he owned or leased the boat at the time of the oil spill and must show that the vessel was damaged or destroyed by the oil and not some other event. The claimant must substantiate the value of the boat both before and after the oil spill as well as the costs to repair or replace the boat. The claim must contain evidence to support the value sought, which can include photographs of damage, the boat's name and the date of the boat's last hull painting, the year the boat was built or overhauled, the boat's length, its hull material, a copy of boat's title or other ownership documentation, the Vessel Identification Number, the location where boat was damaged by the oil, or the date and location that the boat was cleaned and/or repaired.

As with personal property and real property, boat owners have only three years to gather the necessary documentation and submit a claim under the OPA. If your boat has been damaged or destroyed by the Deep Horizon oil spill, you should not delay in contacting an attorney who is an expert in filing boat claims. An attorney can assist in all aspects of the claims process, including locating boat appraisal professionals who can substantiate the dollar value of your loss.

Continue reading " What You Should Know About Boat Damage Claims Under the Oil Pollution Act (OPA) " »

In a previous post, we explored the role of the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) in compensating Louisiana residents who incur oil removal and clean-up costs. These funds are also available for coastal residents who suffer property damage as a result of an oil spill.

According to the U.S. Coast Guard's National Pollution Funds Center web site, the OPA permits filings for oil-related losses to real and personal property. Real property damage is defined as "injury to or economic losses resulting from destruction of land or buildings." For example, the owner of oil-fouled waterfront property can file for reimbursement of the costs to restore the property to its pre-spill condition. Or, if the owner decides to sell the property without restoring it, he can submit a claim for the difference between its pre-spill assessed value and the reduced price he receives for the fouled property after the spill.

Personal property damage is "injury to or economic losses resulting from damages to other types property you own or lease besides real property." For instance, a fisherman can submit a claim for the cost of cleaning or replacing a shrimp net, fishing tackle, or clothing that is fouled by oil.

The OPA requires that property damage claims meet a number of specific requirements. The first is that the claimant must prove ownership of the damaged property. This primarily pertains to real property claims and can be accomplished by titles, deeds, or other public records. The claimant must show that the damage complained of was actually caused by oil and not some other factor. Further, the claimant must show that the amount of damage claimed is "appropriate." This can be achieved by citing the cost to repair or replace the property, the appraised value of the property before and after the spill, or, in the case of real property, the amount of loss suffered when selling the fouled property. Documentation is essential and can take the form of photographs, reports from governmental agencies, invoices, receipts, witness statements, professional property appraisals, lease or rental agreements for substitute property, or any other documentation the claimant feels will help support the amount claimed.

Property owners have only three years to gather the necessary documentation and submit a claim under the OPA. Claims must be for a specific amount of money, which means it is imperative that property owners take the necessary steps to determine the true value of their losses.

An attorney who is an expert in the OPA claims process can ensure that your claim is properly prepared, adequately substantiated, and timely filed.

Continue reading " What You Should Know About Property Damage Claims Under the Oil Pollution Act " »

In Mallett v. McNeal, 939 SO.2d 1254, 2005-2289 (La. 10/17/06), the Supreme Court of Louisiana held that an unconditional payment of a property damage claim constitutes an acknowledgement sufficient to interrupt prescription. Thus, for example, an insurance company's tender of an unconditional payment to an injured third-party claimant is an acknowledgement, and this acknowledgment interrupts prescription. In appropriate cases, Mallett may be of assistance to plaintiffs' attorneys, who file actions to help injury-victims recover against tortfeasors and insurance companies after the victim's case has prescribed on its face.

The Court's holding in Mallett was based upon two consolidated cases. In the first case, plaintiff Jason Mallett ("Mallett") suffered injuries on January 8, 2004, when his vehicle was struck from behind by defendant Paola McNeal ("McNeal"). McNeal carried an automobile liability policy issued by defendant United States Automobile Association ("USAA"). In November 2004, USAA issued two checks to Mallett: the first for payment of property damage, and the second for additional repairs. On February, 2005, more than a year after the accident, Mallett filed suit against McNeal and USAA, claiming damages for injuries. Because the one year prescription period had run on its face, Mallett's claim would have been barred, unless USAA's November 2004 payments interrupted the prescriptive period.

In the second case, plaintiff Charles Richey ("Richey") was involved in an automobile collision with defendant Kameron Dixon, who was driving a car owned by Keith Dixon ("Dixon"). Dixon was insured by defendant Infinity Insurance Company ("Infinity"). Following the collision, Infinity issued a check to Richey and stated that the check represented payment for the total loss of Richey's vehicle. Before the end of the prescriptive period, Richey filed suit in an improper venue. Under Louisiana law, if an action is commenced in an improper venue, prescription is interrupted only as to defendants served with process within the prescriptive period. Unfortunately for Richey, no defendants were served before the end of the prescriptive period. Therefore, Richey's claim would have been barred, unless Infinity's issuance of checks had interrupted the prescriptive period.

In resolving the issue of prescription, the Court had to resolve two questions of law. First, the Court held that an unconditional payment constitutes an acknowledgement sufficient to interrupt prescription. Second, the Court had to determine whether this holding conflicted with La. R.S. 2:611. La. R.S. 2:611 provides:

"No settlement made under a motor vehicle liability insurance policy of a claim against any insured thereunder arising from any accident or other event insured against for damage to or destruction of property owned by another person shall be construed as an admission of liability by the insured, or the insurer's recognition of such liability, with respect to any other claim arising from the same accident or event."

After reviewing case law, the Court held that an unconditional payment is not a "settlement" within the meaning of the statute. The Court then applied this holding to the cases before it.

In regards to the first case, the Court noted that there was no evidence that Mallett 1) took the checks subject to any conditions, 2) released USAA from any further obligations, or 3) signed a document evidencing a settlement. Because these facts indicate that USAA's actions constituted unconditional payment, and not settlement, the Court determined that USAA's actions constituted an acknowledgement sufficient to interrupt prescription.

As to the second case, the Court remanded, reasoning that the issue of improper venue may have caused the defendants to be "surprised" by the plaintiff's exception to prescription theory.

Continue reading " Understanding Property Damage Claims and Amount of Time to File Suit " »

A patient visiting Lake Charles Hospital, located in Calcasieu Parish, filed a lawsuit against his treating physician alleging the doctor was negligent while diagnosing his symptoms. After the patient was hospitalized, the doctor ordered a stress test. Just minutes after the start of the test, the patient began to suffer from an abnormally rapid heart rhythm. In the lawsuit, the patient argued the doctor should not have ordered the test in light of the patient's medical history.

All doctors owe their patients a certain level of care. When a physician breaches that level of care, they can be sued for medical malpractice. The Louisiana Revised Statute 9:2794(A) requires patients who believe they are victims of medical malpractice to establish three main elements. First, a patient must establish the standard of care of the doctor. Second, he/she must show that the defendant breached this standard of care. Lastly, a patient must prove "causation." Specifically, he/she must be able to show that there was a connection between the doctor's breach of his duty and the patient's resulting injury.

Establishing a Physician's Duty to His Patient

All physicians owe a duty to their patients. Each doctor is required to act as a reasonably prudent health care provider would act under the given circumstances. A Louisiana statute, La. R.S. 9:2794, specifies a doctor must possess and exercise knowledge or skill akin to that of doctors who practice in comparable Louisiana communities under similar circumstances. This is known as the ìsimilar locality rule.î

Proving the Doctor Breached the Duty Owed to His Patient

A patient can successfully show that that his/her doctor breached this duty if the doctor's actions fell below the standard of care. For example, if a patient goes to the hospital with all of the signs and symptoms of a broken leg but the doctor tells the patient to go home and "walk it off," the doctor's actions would be a breach of care if most doctors would have ordered an X-ray instead of sending the patient home. A breach of standard of care is often shown through medical testimony. Therefore, a patient may establish a breach of care by having another doctor testify that a majority doctors would have ordered an X-ray under the circumstances.

Showing Causation

The last element that a plaintiff must establish in a medical malpractice claim is causation. This means that a patient must show that the doctorís actions in breaching his duty caused the plaintiff's injury. In the hypothetical example mentioned above, a patient would likely be able to establish causation if the patient returns home and suffers further injury because he has been walking on a broken leg.

While the claimant in the above case was unsuccessful in court, the law favors those who have received negligent or improper care that comes about because of the failure of a doctor or hospital to execute its legal duty. If you have felt that your doctor has not been providing you with the quality treatment, you may be able to establish a medical malpractice claim.

Continue reading " Understanding a Hospital or Doctor's Duty of Care Requirements " »

The Louisiana Third Circuit Court of Appeals recently ruled in favor of the owner of a Lafayette hardware store and affirmed the trial court’s granting of Summary Judgment against a customer who was bitten by a spider while shopping there.

While in the store, Lee Johnson picked a rosebush from an outdoor display at the Ace Hardware store owned by Defendant Stine LLC (Stine Lumber/Ace Hardware). An employee carried the bush inside so Johnson could buy it. When Johnson picked it up from the checkout counter several wolf spiders emerged, one of which bit Johnson’s finger. He suffered extreme swelling, slurred speech, and memory loss as a result of the bite and sued the owner of the store for damages.

Two significant issues came up in the Court of Appeals’ opinion that provide insight into what must be proven in a case like this one. First, the Court found that spoilation of evidence with respect to the spider did not apply.

Spoilation of Evidence is “a tort action against someone who has impaired the party’s ability to institute or prove a civil claim due to negligent or intentional [destruction] of evidence” (McCool v. BeauregardMem’lHosp., 01-1670, p.2 (La.App. 3 Cir. 4/3/02)). If spoilation is proven, negligence in the underlying action is presumed. However, in order to be successful, one must prove:

(1)the intentional or negligent destruction of evidence, and’ (2) that the first element was for the purpose of depriving the plaintiff of its use.

Here, because the Defendant stored the spider for two years rather than discarding it, the Court found that Stine did nothing to the spider with intent to deprive Johnson of the use of the evidence in his lawsuit.

The second issue in the case, and very central to a claim like this, involves the duty of a merchant to those that use his premises. In LAR.S. 9:2800.6 the duty owed by a merchant to his customers is explained. Merchants have a duty to exercise reasonable care to keep “aisles, passageways, and floors in reasonably safe condition,” including making “a reasonable effort to keep the premises free of any hazardous conditions...” This means that in a claim brought against the merchant, the claimant has the burden of proving the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable. (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient alone to prove failure to exercise reasonable care.

The Court here found that Stine did not have a duty to protect Johnson from being bitten by a migratory spider on one of its outdoor plants because that risk was outside the limited scope of duty provided under Louisiana law. If you have been injured while on the premises of someone else’s business however, you may very well have a viable claim for damages. Your success will depend on excellent legal representation by an attorney who understand the nuances of the law in this area. Such phrases such as “unreasonable risk of harm,” “reasonably forseeable,” “reasonable care,” actual or constructive notice,” etc. are all legal terms of art that have very specific meaning. Your attorney must be able to understand the facts of your case well enough to know if you meet the stringent criteria.

Continue reading " An Example of the Duty of Care For Stores and Injured Customers " »

In the aftermath of the explosion of the Deepwater Horizon and the disastrous oil spill that now encroaches on Louisiana's coastline, many individuals and business will be looking for a way to handle the massive financial burden associated with clean up and recovery. Luckily, the law provides a way for them to collect some damages.

The Oil Pollution Act

In 1989 the Exxon Valdez spilled over 11 million gallons of oil into Prince William Sound in Alaska. At the time, the U.S. did not have adequate funds to respond to the spill and only very narrow compensable damages could be recovered. The Oil Pollution Act (OPA) was passed by Congress in 1990 (33 U.S.C. 2701-2761) to address these shortcomings. The OPA created a comprehensive regime to prevent, respond to, and compensate for vessel and facility caused oil pollution. The law also provided for federal oversight of maritime oil transportation through increased environmental safeguards.

Title I of the OPA broadened the scope of damages for which polluters are liable and authorized up to $1 billion for the Oil Spill Liability Trust Fund (OSLTF). The OSTLF can be used to pay for oil removal and damages that are left uncompensated after claims are made against the parties responsible for the spill (the limit of the fund was raised to $2.7 billion with the passage of the Energy Policy Act of 2005) and is funded by an oil tax. The U.S. Coast Guard administers the OSLTF through the National Pollution Funds Center (NPFC).

It is interesting to note that the OSTLF was actually created four years before the passage of the OPA in 1986. However, Congress did not authorize the use of the money in the fund or the collection of revenue necessary to maintain the OSTLF until the OPA was signed into law.

As mentioned above, under the OPA, the OSTLF can be used to pay claims for uncompensated removal cost and damages after an oil spill. In the current situation, British Petroleum (BP was leasing the Deepwater Horizon when the explosion occurred and has been deemed the responsible party) is currently accepting claims. However, if any party is not satisfied with the resolution of their claim by BP, they may make a claim under the OPA and submit a claim to the NPFC. Several different types of claims are recoverable, many of which may apply to individuals or businesses whose lives have been negatively affected.

The OSTLF can be used to make claims under a variety of parameters:
Compensate the public for the lost use of the affected natural resources.
This could entail compensation for the lost use of public lands that have been contaminated by the spill.

Pay the cost to remove, minimize, mitigate, or clean up an oil spill.
This means that if BP is unable to fully clean up the spill, the federal government has funds available to use to ensure areas are returned to pre-spill condition.

Pay the cost of economic loss that resulted from the destruction of real or personal property (although not personal injury).
Real property includes real estate and personal property includes any other property that may have been damaged in the spill.

Pay for injury or economic loss that resulted from damage to a boat.
If you own a boat that was in an affected area and is now damaged, you may be able to recover damages to repair or replace your boat.

Pay damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of property or natural resources.
If you own a business in an affected area and the business was forced to close temporarily or permanently you may be able to recover damages for the profits that would have been earned if the oil spill did not occur.

Pay damages to anyone who has lost profits or income, regardless of whether or not they owned the damaged property.
This may apply to someone that operates a business in an affected area but does not own property (maybe the business property is leased or the business does not involve the use of property). Owning damaged property is not a prerequisite for recovering damages.

It is important for potential clients to make a claim as soon as they can so that the legal process can begin. By hiring an attorney that is advanced in matters relating to liability for industrial accidents, an affected party may have their best chance in court to get the justice they deserve.

The massive oil slick drifting ominously in the Gulf of Mexico has state officials worried for the health of Louisiana residents who live along the coast. Since April 20, when the oil rig Deepwater Horizon exploded and subsequently sank, oil has been flowing into the Gulf at a rate of up to 200,000 gallons per day. The fact that the oil has not yet reached land is largely the result of favorable winds and currents, both of which are subject to change at any moment. As of Friday afternoon, underwater robots had begun positioning a four-story tall, 100-ton box made of concrete and steel over the gushing well on the sea floor. The device will permit crews to recover most of the oil from the well, but it will not entirely stem the flow. It will also do nothing to address the oil that has already escaped and looms ever closer to the coast.

According to an AP story carried by Yahoo News on May 7, state and federal authorities are gearing up to deal with the many hazards to human health that will result if and when the oil reaches land. Officials are advising coastal residents to take precautions now. "We don't know how long this spill will last or how much oil we'll be dealing with, so there's a lot of unknowns," Dr. Jimmy Guidry, Louisiana's state health director, said. "But we're going to make things as safe as humanly possible."

Last week, in what many saw as a preview of things to come, a foul stench drifted over parts of lower Louisiana. According to Alan Levine, secretary of the Louisiana Department of Health and Hospitals, the oil was likely to blame. Levine's office received numerous complaints, some from state legislators in New Orleans, who were more than 130 miles from the epicenter of the disaster.

According to the AP report, the U.S. Environmental Protection Agency has begun 24-hour air quality monitoring in coastal areas and is now posting the readings online for ozone and airborne particles like soot. These materials are irritants that can cause respiratory distress in humans, particularly those with chronic conditions such as asthma or emphysema. Also, fires being set deliberately by the Coast Guard to burn off oil on the water are producing acrid smoke that could cause problems for those who come into contact with it.

The health symptoms for exposure to the oil leak are simple and simple actions can prevent problems caused. Public health agencies are advising residents near the coast who experience nausea, headaches, burning eyes or other discomfort to remain indoors, close windows, and turn on air conditioners. People who must be outside should take care to avoid exerting themselves.

Clean drinking water and a safe seafood supply are also a concern. The Louisiana Health Department has ordered testing of municipal water systems near the Gulf for signs of oil. Some coastal cities, including New Orleans, source drinking water from the Mississippi River, which so far has shown no signs of oil contamination. Nevertheless, the Coast Guard is inspecting boat traffic on the river and will order any ships with oil-coated hulls to be scrubbed down. Health officials have pronounced fish, shrimp, oysters, and other Gulf seafood that have already made it to market safe to eat. "If we see increases in hydrocarbons or other contaminants, we'd stop the flow of seafood," Levine said. The major immediate risk from eating contaminated seafood is gastrointestinal sickness. However, given that oil contains carcinogenic compounds, officials are concerned about fish from oily waters reaching consumers.

Please return to this blog often for further health updates from state officials.

Sometimes, accidents on bodies of water, such as the Mississippi River, are governed by a unique set of federal laws, instead of state laws. This is known as admiralty jurisdiction. This special type of jurisdiction is important for many residents of Louisiana, especially those in coastal cities like New Orleans, because of the number of water-based industries that thrive including recreation, fishing, shipping and other port or dock-based maritime activities.

In order for an accident to fall under admiralty tort jurisdiction, the "locality plus nexus" test must be satisfied. The test has two requirements: The accident (1) "must occur on or over navigable waters" (i.e., locality) and (2) "must 'bear a significant relationship to the traditional maritime activity'" (i.e. nexus). These requirements are put in place to strictly define applicable events as those in the operation of the boat and not the variety of other water-based accidents or situations that can arise that the law is not trying to incorporate.

Locality
In order to meet the locality requirement, the accident does not need to occur on water. Rather, the accident can occur on land, as long as the accident "is at least caused by a vessel on navigable waters." Case law has established that "federal admiralty jurisdiction extends to the means of ingress and egress [to the vessel], including but not limited to the [vessel's gangway.]"

Nexus
In order to satisfy the nexus requirement, the maritime activity doesn't need to be exclusively commercial. Rather, the courts attempts to determine (1) "whether the incident has a potentially disruptive impact on maritime commerce" and (2) "whether the general character of the activity giving rise to the incident shows a substantial relationship to the traditional maritime activity."

Example
An example of admiralty jurisdiction occurs in the Louisiana case of Thomey v. Weber Marine. In Thomey, Cargill, Inc., contracted with the company Weber Marine to provide transportation across the Mississippi River for Cargill's employees. Cargill employed the plaintiff "as a maritime worker [for] loading and unloading grain barges and ships on a mid-stream grain transfer facility."

At the time of the accident, the landing area used for boarding Weber Marine's transportation vessel "was covered with approximately 30 feet of ankle to knee-deep water due to the seasonal rise in the river's water level." To allow dry access to the vessel's gangway, Weber Marine placed three wooden pallets and a six foot board in the water. The plaintiff, while attempting to board the vessel for work, then "slipped and fell as he attempted to step onto one of the wooden pallets."

The court held that the accident fell under admiralty tort jurisdiction. The court stated the locality requirement was satisfied because "the pallets served as a makeshift means of ingress and egress to the" vessel, even though they weren't physically connected to the gangway. Additionally, the court supported this idea of expanded locality by noting that "many employees routinely used wooden pallets to access the gangway when the water level was high."

The court also found the nexus requirement satisfied because it "substantially impact[ed] an activity essential to commercial shipping, i.e., the loading and unloading of vessels in commerce"--even though the accident occurred on the shore side. The court reasoned that the "failure to provide a safe means of ingress and egress exposes employees to injury" and impacts their ability to arrive timely--if at all--at work. Furthermore, the court noted that transporting "river workers from shore to ship is inherently maritime[.]"

Determining whether an accident is governed by admiralty jurisdiction's unique set laws depends on the facts of each case. In order to know whether a person's rights are determined by Louisiana or federal admiralty law, legal representation is essential.

Employees injured on the job are usually bared from filing a claim against their employers because they are fully compensated under the Louisiana Workers Compensation Act. However, while the act provides for most injuries, it does not provide for all. Whether or not your injuries are covered by Workers Compensation requires a look at recent Louisiana statutes.

In the case of employee's claiming injuries due to asbestos exposure, Louisiana's Workers Compensation Act can may be tricky to pinpoint. Because asbestos usually manifests itself years after initial exposure, deciding which statute applies, and thus which injuries are covered, may be difficult. The time at which a claim arises is usually measured from the injury producing event, that is in this case, the initial exposure to asbestos. The injury producing event, in addition to providing a timeline for a cause of action, also determines the law controlling the event. Laws are amended and changed over time, so the date of asbestos exposure actually determines which statute will be applied to the injury claim.

In 1996, Royce Thomas filed a claim against his former employer, Anco Insulations ("Anco"). He claims that his job, from 1968 to 1971, exposed him to large quantities of asbestos, and he contracted lung cancer and asbestosis as a result of the exposure. His employer challenged the claim, alleging that the injuries were covered under workers' compensation. This is where the importance of the injury producing event becomes evident. Royce claimed that his lung cancer and asbestosis were related to pre-1975 exposure to asbestos. Under Louisiana law at that time (pre-1975), asbestos was not a substance covered under the Workers' Compensation Act. Therefore, Royce had a valid cause of action because the injury producing event occurred at a time when asbestos, and lung cancer for that matter, were not injuries covered by the state's Workers' Compensation Act.

Determining the injury producing event is very important to a claim, especially one involving asbestos or mesothelioma. Had the asbestos exposure occurred after 1975, Royce Thomas' would have been bared from filing a claim against Anco because the statute was amended to include asbestos, and he therefore would have been entitled to complete relief under Workers' Compensation.

Cases involving asbestos exposure also lend themselves to debate over the root cause of the injury. In the above case, Mr. Thomas claimed that his injuries were caused by asbestos exposure, a substance not covered under the Workers' Compensation Act. The employer, however, argued that Thomas' lung cancer was actually caused by asbestosis, a disease explicitly covered by the Act. [Note: Asbestosis is a chronic inflammatory medical condition that effects the lung tissue]. Determining the injury producing event, whether lung cancer was caused by asbestos exposure or asbestosis, can help a court decide whether the injured party has a right to relief under Workers' Compensation or not.

A February 1996 car accident led the First Circuit Court of Appeals of Louisiana to find that testimony indentifying an ample history of car accidents near a sharp curve in Addis, Louisiana, established that the curve had presented a problem for a significant period of time. The Court found that the testimony was sufficient to support a finding of constructive notice of a problem with the roadway to the Louisiana Department of Transportation and Development (DOTD). Constructive notice, one of the requirements necessary to find an entity responsible for a faulty element, is highly essential when trying to prove responsibility after an accident or incident involving injury.

Around 7:45 p.m. on the evening of the accident, Jerry Goza was traveling westbound on Louisiana Highway 989-1. While traveling, he came upon a sharp curve at the point where Highway 989-1 intersects with Highway 989-2. Goza's vehicle ran off the roadway into a cane field, eventually running into a ditch, striking a culvert, and flipping over. Goza sustained serious injuries requiring surgery and rehabilitative treatment.

Goza filed a suit for damages against the DOTD alleging that the design, construction, and signage of Highway 989-1 were defective. Following a four-day jury trial, a verdict was rendered in favor of Goza, and the DOTD was allocated twenty five percent fault. The DOTD filed a motion for a judgment notwithstanding the verdict (JNOV). The trial court granted the motion in part, amending the jury's award of damages, but maintaining the awards and fault allocations rendered by the jury. The DOTD appealed both the original jury verdict and the JNOV.

On appeal, the First Circuit provided that in order for the court to have found the DOTD liable, the plaintiff had to prove: (1) the DOTD had custody of the thing that caused the plaintiff's damages, (2) the thing was defective because it had a condition that created an unreasonable risk of harm, (3) the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and (4) the defect was a cause-in-fact of the plaintiff's injuries. The two issues at the heart of the appeal were whether the DOTD had constructive notice of the alleged defect in the roadway and whether that alleged defect was the cause of the plaintiff's injuries.

The First Circuit provided that constructive notice is defined as the existence of facts which imply actual knowledge. This definition allows a person to infer actual knowledge on the part of a public entity when the facts demonstrate that the defective condition existed for such a period of time that the defect should have been discovered and repaired. While the DOTD cannot be required to be aware of every defect on its roadways and shoulders, neither can the DOTD escape liability by negligently failing to discover that which is easily discoverable. In this case, because the DOTD possesses records of traffic incidences and accidents, the department would have been aware that events kept happening at this intersection and should have taken action to prevent them from continuing.

Goza offered the testimony of Larry Straub, a resident who lived less than a mile from the curve. Straub testified that over the years he had seen several accidents at the intersection of the Highways and that people often asked Straub's grandfather to help pull their vehicles out of the nearby ditch. Straub also testified that he had often seen State Police investigating accidents at the intersection. In fact, he testified that despite his familiarity with the area, both he and his wife had had accidents while traveling on the sharp curve.

Goza also offered the testimony of Jason Campbell who testified that he was involved in an accident that was similar to that of the plaintiff.

The Court found that the testimony regarding the long history of accidents at the site of the curve was sufficient to support a finding of constructive notice of the roadway defect to the DOTD.

This second central issue was whether or not the alleged defect in the roadway was the cause of Goza's injuries.

As a result of the severity of the injuries sustained by Goza in the accident, he had no memory of the accident or how it occurred. However, at trial, Goza presented the testimony of John Bates, an expert in civil engineering, specializing in traffic accident reconstruction and the evaluation of highway design and maintenance, to establish that the roadway contained several defects that caused it to be unreasonably dangerous. The primary defect observed by Bates was the compound curvature of Highway 989-1 at the point where it connects with Highway 989-2, making the curve quite sharp. Bates testified that the danger presented by the curve, under the blanket of night, when Goza's accident occurred, was increased by the lack of lighting, inadequate signage altering motorists of the significant curve, an excessive speed limit, and failure to install protective barriers to keep the unwary motorist on the roadway.

The Court found that this evidence was sufficient to support the jury's finding that the defects in the roadway contributed to Goza's accident.

The Court also addressed the issue of fault comparison, and affirmed both the lower court's jury verdit, as amended by the JNOV, and its fault allocation. As a result, the DOTD was held responsible for failing to address the issue. This incident demonstrates the need not only for expert testimony in issues involving complex engineering and analysis but for careful research on the history of a locale when trying to determine culpability. Selecting attorneys with experience in these sort of incidences is essential in order to protect the injured party's interests, especially in suits against public entities like the DOTD was in this case.

If you or someone you know has been injured on the job, there's a good chance that
workers compensation was a topic of conversation. By law, employees injured during and/or in the course of their employment are entitled to monetary benefits. However, the right to collect worker's compensation does not stretch indefinitely. Most jurisdictions place a "statute of limitations" of a "prescription period" on personal injury claims, limiting the amount of time an injured party has to file a compensation claim.

In 2002, City of Brusly's Chief of Police was injured during the course of employment. His claim for compensation, however, was not filed until December 2004, nearly two and half years after his injury. The question at issue in this case was whether prescription, that is, the filing of his claim after Louisiana's one-year limitation placed on personal injury claims, prevented the Chief from filing his action for worker's compensation benefits.

Louisiana Revised Statutes 23:1209(a) provides three prescription (limitation) periods for the filing of compensation claims:

(1) one year from the accident when the injury is immediately manifest;
(2) one year from the last payment of compensation benefits; and
(3) one year fro the time the injury develops, but not more than two years from the accident, when the injury does not result at the time of or develop immediately after the accident.

In certain circumstances, prescription can be suspended to prevent the time constraints imposed on a personal injury claim from expiring. Suspending prescription on the Chief's injury would allow him to successfully file a claim after the one-year limit.

After the accident, the Chief of Police was unable to perform all of the necessary duties required of his office, yet he still received the same level of compensation. The court considered these to be "wages in lieu of compensation", which qualified as compensation benefits under the second prong of the above mentioned statute, allowing the Chief to claim benefits even though the prescription period had expired.

"Wages in lieu of compensation" differ from regular salary in the sense that they provide compensation that is not on par with the actual work being performed. For all practical purposes, these wages are considered to be compensation benefits that qualify under the second prong of the statute.

While the Chief of Police highlights an exception to the prescription period, it is not the recommended route when filing a claim for worker's compensation benefits. To avoid undue future litigation and stress, file your claim for worker's compensation as soon as possible. Prescription period across the nation stretch from 1 year in Louisiana to 6 years in states like Maine and North Dakota.

Many people believe that the term "medical malpractice" means a doctor can be sued any time a doctor harms or makes a mistake while treating a patient. Like most states, Louisiana's Medical Malpractice Act protects doctors from frivolous, or meritless litigation, meaning incidental harm or minor mistakes made by a doctor will probably not result in a malpractice violation. The person bringing a malpractice claim against a doctor must prove certain elements exist, most commonly that: (1) the patient suffered a significant injury; (2) the doctor or hospital staff did not meet the standard of care typical of medical professionals; and (3) the medical mistake or lack of care was the direct cause of the patient's injury.

To help you understand, please consider the following examples:
(A) A patient comes into a doctor's office complaining of chest pains and indigestion. The doctor fails to make a diagnosis or provide treatment and sends the patient home. The patient suffers a heart attack the next day.
(B) A patient comes into a doctor's office complaining of chest pains and indigestion. The doctor fails to make a diagnosis or provide treatment and sends the patient home. The patient suffers a heart attack a year later.

In both examples, the patient suffered a significant injury-- a heart attack. However, only the patient in example (A) would potentially have a medical malpractice suit. Patient (A) might not have suffered a heart attack the next day if the doctor had run more tests, made a proper diagnosis, given the patient instructions on what to do if the symptoms persisted, or done anything else a doctor facing a similar situation might do. A jury could reasonably infer that the doctor's lack of care, by not providing a diagnosis or treatment, was the cause of the patient's heart attack. In example (B), the amount of time between the patient's visit to the doctor and the patient's heart attack is too long for causation [that the doctor's lack of care caused the patient's injury] to be proven.

Although the explanation above is pretty clear, most medical malpractice cases are not. Medical malpractice claims can be difficult to prove because it can be hard to draw the link between the patient's injury and the doctor's action or inaction measured by the medical profession's standard of care. Most of the time, you will need a medical professional to serve as an expert witness to explain how your doctor's mistake caused your injury.

If you believe you are the victim of medical malpractice, you should consult an attorney. The attorney can help you understand legal jargon like what constitutes a "significant" injury or how "causation" can be proved, both of which are more complicated than the above examples would lead you to believe. Attorneys can also find qualified medical experts to help explain your case to the court or to a jury, should your case get that far. Also keep in mind that most states have a statute of limitations on how long you have to file a medical malpractice claim from the date the alleged injury occurred. In Louisiana, medical malpractice claims must be filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect. La. Rev. Stat. Ann. § 9:5628 (West Supp. 1997).

Continue reading " Understanding the Term "Medical Malpractice" " »

The majority of asbestos cases in Louisiana involve corporate defendants: domestic and foreign corporations responsible for the individual's exposure. Claims against corporations are subject to the procedural rules of venue. The venue is determined to be the place in which the injured party may bring their case. Under the general rules of venue:

An action against a domestic corporation (Louisiana corporation) shall be brought in the parish where its registered office is located, and an action against a foreign corporation licensed to do business in the state shall be brought in the parish where its designated primary business office is located. An action against a foreign corporation not licensed to do business in Louisiana and without an agent for service shall be brought in the parish of plaintiff's domicile."

With multiple defendant corporations, it may be in the injured party's benefit to show that the defendants are solidary obligors. Solidary Obligors is a term used in Louisiana for parties that share responsibility for a person's injuries. Proving this relationship makes it easier on the injured party to file claims in the proper court (venue) because they need only show that venue is proper as to one of the defendants. This relieves some of the pressure of ensuring jurisdiction over each defendant corporation to their claim.

LSA-C.C.P. art. 41 provides that an action against joint or solidary obligors may be brought in a parish of proper venue, as to any obligor who is made a defendant.

Failing to achieve this party relationship, however, makes the venue selection process more difficult and a reason for courts to dismiss an asbestos case. Nevertheless, figuring out the proper venue for your case is not a one-strike game. Prescription, the "timeframe" by which a party has to file claims for a type of case, is interrupted if the action is commenced in an improper venue. You have the option to refile your case with the correct court without prescription running.

However, keep in mind that the rule mentioned above only applies to parties that have been served. Service involves the process in which a defendant has been made aware of the suit through the correct form of service of process. If you are adding another defendant to your claim, the time limit is not suspended for the new party because they were not properly made aware of the case prior to the case being filed with the improper court.

These issues can be confusing to someone unfamiliar with the Louisiana rules and procedure and are the reason why many asbestos cases have been unsuccessful in court. Consultation and careful planning with a lawyer can prevent these problems from effecting the future of your asbestos claims.

Louisiana law requires motorists to carry liability insurance on any automobile they own. This coverage pays for property damages or personal injury for which you may be legally responsible. Unfortunately, not everyone on the road has insurance. However, insurance companies have built in protection for drivers that are injured by an uninsured/underinsured motorist.

In 1999, Carol Tedeton was injured during her employment with an automobile service station. She was hit by a minor without adequate car insurance. To recover for her injuries, Carol argued that she was covered under the garage's uninsured/underinsured motorist ("UM") policy.

Under La. R.S. 22:1406(d), any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underinsured motorist.

So who qualifies as an insured under either the liability or UM portions of a auto insurance policy?

Most policies, like the one in the Tedeton case, are separated into two sections: Liability and UM. Liability insurance protects the driver in the case of their own fault. Those considered "Insured" under this section typically include the policy holder while operating a "covered auto" and anyone using a covered auto with the policy holder's permission.

A "covered auto" is a vehicle covered by the insurance policy and ordinarily designated by codes in the policy. In the case of Mrs. Tedeton, her employer's policy listed codes "21-any auto" and "22-owned auto's only". To qualify as an insured under the liability portion of a policy, the driver must be operating a covered auto as defined in the policy.

Whereas liability insurance covers the driver's own fault, UM insurance coverage pays benefits to you if your car is hit by a driver who has no insurance or too little insurance to pay for the full amount of your injuries. Qualified insureds under the UM section include the policy holder, any "family member of the policy holder", or any individual occupying a covered auto.

"Occupying" means in, upon, getting in, on, out or off. To receive UM protection, you must be in, getting in, getting on, or getting out of a covered auto as listed in the liability section of the policy.

While each policy is different, the basic guidelines listed above can be helpful in determining who is covered under your policy. In a 2009 report by the Insurance Research Council, the number of uninsured drivers in Louisiana was 12%. That number is expected to rise as a result of the economic downturn. Because of this, it is very important that drivers understand the protection provided by their auto insurer so that they do not find themselves in a complex situation with little room to receive the financial resolution they deserve.

A five year old and seven year old were injured in pit bull attacks in New Orleans March 30 and 31. Shockingly, these attacks both occurred within only 18 hours! First, a five year old girl was mauled in the Gentilly area. A mere eighteen hours later a seven year old was attacked in Algiers and suffered an injury to her ankle.

In Gentilly, the girl was playing basketball with other kids around 6:40 p.m. near the 55000 block of Warrington Drive. Three dogs charged the children. An intact pit bull (not spayed or neutered) chased the girl into a yard and cornered her, biting her on the head, ears, shoulder, and chest. A neighbor called police who arrived on the scene while the child was still under attack. The officers were able to lure the dog away before shooting and killing the animal. The Society for the Prevention of Cruelty to Animals (SPCA) cited the dog owner for owning a vicious animal and having a roaming dog. The municipal violations could later be upgraded to criminal charges. An investigation has shown that someone may have let the dogs out of the owner’s possession. The owner was unaware his dog was involved in an attack.

The second incident involved a seven year old girl who was walking between two homes in her Algiers neighborhood when she was attacked by a brown pit bull. The girl was shaken up and unable to tell authorities what happened. Witnesses saw other dogs fighting with the pit bull shortly after the attack. The owner of the brown pit bull was cited for owning a vicious dog, allowing it to roam at large, and having no proof of a rabies vaccination. The dog will be held for ten days while a rabies test is completed before a judge decides its fate.

None of the dogs involved in the attacks were neutered, making them much more likely to attack. In fact, according to the article on New Orleans' Nola.com:

Statistics show that an unneutered dog is 2.6 times more likely to bite a person...about 97 percent of all dog-related human deaths involve unsterilized dogs.

Given the dangerous nature of dog bites and also risks involved for children, what are the legal ramifications here?

Owner liability for injuries in a dog bit case can be based on a couple of different legal theories. In a negligence claim the injured person must show that they were owed a legal duty by the owner of the dog and the duty was breached. The duty can arise from failing to properly secure the dog or leaving the dog with someone unable to restrain him. It can also exist if the dog owner violates a local ordinance, like those cited in this story.

States may also impose a more stringent standard of fault, strict liability. In those states (including Louisiana) liability automatically arises when an animal that is known to have a vicious propensity, bites, injures, or even just chases someone. Negligence of the owner does not need to be proven.

Regardless of whether the dog bite claim is based on negligence or strict liability whether the victim provoked the attack will undoubtedly be taken into account. Provocation occurs when a dog is incited or encouraged to bite a person. A person who knew that his actions would be painful or annoying to a dog is deemed to have provoked the dog. Even in strict liability states the dog owner may use provocation as a defense to reduce their liability or avoid liability completely.

A growing amount of national attention has begun to shift upon the oil spill disaster developing in the Gulf Coast. With some news sources declaring it "a disaster without precedent," the explosion and subsequent sinking of the Deepwater Horizon oil rig has led to an environmental nightmare. With thousands upon thousands of gallons of oil leaking into the Gulf, it will only be a few days before a more vivid, and scary, picture can be drawn of what Louisiana and other Gulf Coast states are facing.

The Portland Press Herald/Maine Sunday Telegraph reports

Eve, who lives on the water 20 miles east of New Orleans, said strong oil fumes were engulfing his neighborhood. "You can't breathe the air comfortably," he said. "It bites you right in the back of the throat and your eyeballs burn."

Obama administration officials fanned out across the Gulf of Mexico states pledging attention and assistance. In an already troubled economy, the oil slick threatened to damage the region's fishing and tourism industries as well as disrupt shipping along the Mississippi River.

On Friday, Louisiana's departments of Health and Hospitals and Wildlife and Fisheries announced severe restrictions on fishing and oyster harvesting east of the Mississippi River.

This synopsis accurately captures the situation New Orleans faces currently. Be it merely the fumes of spilled oil or a severe blow to the local fishing industry, the problem has finally reached the city and Louisiana at large. The longstanding effects aside, the current situation is not one any resident of the area would have ever expected a month ago and is yet another blow to a region that has faced chemical discharges and horrific hurricane damage.

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

On television, legal cases are almost always decided by a dramatically discovered fact or through emotional testimony. In reality, many cases are decided by court rules or procedural technicalities. This might be true even if the substantive legal arguments would produce a different result. Such a scenario is demonstrated by the case of Pickett v. International Paper Company, a workplace asbestos exposure case involving both Webster and Morehouse Parishes.

Two procedural rules were at issue in the Pickett case. One of these was venue. In legal terminology, venue refers to the location of the proper legal location in which a case should be filed - in other words, the court in the proper parish. Under Louisiana's rules of civil procedure, proper venue is typically determined by where an alleged defendant lives, is located, or conducts business (LSA-C.C.P. art. 41). That rule embodies an aspect of fairness to the party who must defend itself against a claim of wrongdoing. If there are jointly responsible defendants, the venue rule need only be satisfied as to one of them. If a defendant is a business or corporation that does not have an actual place of business in the state, a plaintiff may file suit in the parish where the plaintiff lives (LSA-C.C.P art. 42).

The second rule that helped determine the outcome of the Pickett case was presciption. Under Louisiana law, an injured party has one year from the date the injury was sustained to file a lawsuit. That one-year limit is often called the prescriptive period. If not filed within one year, that particular claim is barred by the passage of time. In certain cases, the prescriptive period may be essentially paused. However, in most cases the one-year limit applies.

The Pickett case was decided at an intersection of the venue and prescription rules. The plaintiffs in the case had filed a lawsuit in Webster Parish against multiple defendants. Most of these defendants were former employers of the plaintiffs who allegedly caused the plaintiffs to be exposed to asbestos. The particular defendant involved in the venue and prescription issues, Eaton Corporation, was a successor-in-interest to one of those companies. Eaton initially challenged the plaintiffs' claims against it based on improper venue. It asserted, and the plaintiffs actually agreed, that Webster Parish was not the proper place to file suit against Eaton. The parties agreed that proper venue actually lay in Morehouse Parish, and the case was transferred to that parish's court.

Eaton then argued to the Morehouse Parish court that the plaintiffs' case was actually prescribed because Eaton was not sued in proper venue within the one-year prescriptive period. As long as a case is filed in a venue that is proper, the prescriptive period can be paused, even if that venue later becomes improper. For instance, venue may become improper if venue was based on a particular defendant and that defendant becomes no longer involved in the case. Eaton argued that Webster Parish was never proper venue for a suit against it. Therefore, the prescriptive period for the plaintiffs' claims against Eaton was never interrupted, or paused, and Eaton was not served notice of the lawsuit until well after that prescriptive period expired.

The plaintiffs challenged Eaton's prescription argument using two of the alternate venue rules, trying to establish that Webster Parish was a proper venue for the case at the outset. If Webster Parish was initially proper venue, the case against Eaton would have been filed in a timely manner. First, the plaintiffs attempted to assert proper venue based on the fact that venue was proper for another defendant, Asten Group. According to legal precedent, if venue is proper as to one defendant, it is proper as to all "joint or solidary obligors" (Pickett, 924 So.2d at 496). However, the court ruled that the plaintiffs' injuries from Asten arose from different incidents than did the injuries attributable to Eaton. Thus, Eaton and Asten were not "joint and solidary" defendants, and the plaintiffs must establish proper venue for its claims against Eaton on their own account.

Secondly, the plaintiffs asserted that some of their injuries were due to events occurring in Webster Parish. Therefore, venue would have been proper in Webster Parish at the time the suit commenced. However, the court found that Eaton did not have operations in Webster Parish. Thus, the plaintiffs could not establish proper venue as to Eaton based on occurrences in Webster Parish.

Finding that the prescriptive period had indeed lapsed, the court dismissed the plaintiffs' claims against Eaton. This case illustrates that legal claims can be decided based on technical details, regardless of what the actual evidence in the case indicates. The Pickett case provides yet another example of how important a quality, detail-oriented legal team is in protecting the rights of injured persons.

For those struggling to visualize the Deepwater Horizon explosion and oil leak being faced by Louisiana and other Gulf Coast residents, the Times-Picayune has released a helpful graphic depiction of the various elements involved in the matter.

Using information from the US Coast Guard, NOAA, BP and Transocean, Dan Swenson provides the following

We would encourage our readers to check out the full article accompanying the graphic as it outlines with great detail the situation in New Orleans, Venice and other areas in the Gulf Coast that are waiting anxiously to understand what fate will befall them in the face of this environmental disaster.

As always, we will provide updates on this matter, as well as expert legal analysis of this issue, throughout the week.

Folsom Police responded to calls recently reporting an erratic driver on Highway 25. Unfortunately they were not able to get to the scene before the dangerous driving led to an accident. The driver at fault, Lesley Myers of Angie, was reportedly traveling south through Folsom at high speeds when his 1993 Pontiac Bonneville crashed into a horse trailer near the intersection of HIghway 25 and Broadway Street and then struck a northbound truck.

According to an article in the St. Tammany news, this was no ordinary traffic accident. In fact,

When the call came in, it was reported that Myers was in possession of a gun and that he was holding the firearm as he stood in the center of La. 25.

Rumors also circulated that passersby had seen Myers throw a body from his vehicle while passing near Fricke’s Cave in Washington Parish.

When Officer Hutchinson of the Folsom Police Department arrived on the scene he found Myers standing in the middle of the highway. Myers did not respond to repeated requests for him to place his hands on the hood of the patrol car. Hutchinson even tasered Myers twice with little effect. Finally, more police arrived and Myers was taken into custody and charged with reckless operation, driving while intoxicated, vehicular negligent injuring, and resisting an officer. Police never found a gun in Myer’s possession, in his vehicle, or in the area around Fricke’s Cave.

While Mr. Myers will probably be legally and financially responsible for the damages caused by the accidents in this case, what about the other drivers on the road who witnessed what must have been a terrifying scene of a man with a gun in the middle of the highway who may have just thrown a body from his car? Can individuals recover based on their emotional distress alone?

The answer is maybe. Intentional Infliction of Emotional Distress (IIED) is a fairly new type of claim that allows recovery of damages for intentional conduct that results in extreme emotional distress. Some jurisdictions even refer to this claim as the tort of outrage.

IIED was created to allow for liability in situations where an individual was subject to severe distress but would not be able to bring an assault claim because the threat of harm was not imminent. An example is if someone were to threaten someone else with future harm or told them something untrue simply to subject them to severe mental anguish.

IIED is very difficult to prove and requires the proving of four separate elements:

First, the defendant acted intentionally or recklessly.
Second, the defendant’s conduct was extreme and outrageous.. Extreme and outrageous is a very important element. The conduct must be such that a person of average temperament (rather than the very frail or sensitive) would have suffered emotional distress.

Third, the defendant’s act caused distress.

And fourth, the plaintiff suffered severe emotional distress as a result of the defendant’s conduct.

The ability for any witness to recover for IIED here would depend on many factors. One issue is crucial: What the driver was saying or screaming while in the middle of the road , whether he was waving his gun, whether the gun was discharged, etc. However, it is helpful to know that liability for injury sometimes can stretch beyond those who were physically harm.