Louisiana Personal Injury Lawyer Blog

In a tort case based on negligence, a plaintiff must be able to show that the defendant owed a duty to the plaintiff and that the defendant breached that duty, resulting in harm to the plaintiff. In some circumstances, though, it can be difficult for a plaintiff to obtain clear evidence of the defendant’s breach of duty.

The concept of "res ipsa loquitur," which is Latin for "the thing speaks for itself," can be employed in certain situations to establish the defendant’s breach of duty in the absence of direct evidence. Under this doctrine, the mere occurrence of an accident raises the inference of negligence on the part of the defendant. When res ipsa loquitur is applied, the defendant bears the burden to put on other evidence to dispute the presumption of negligence.

There are two essential elements for applying res ipsa loquitur in a particular situation:

1. the harmful event must be one that normally does not occur in the absence of negligence or careless action on the part of the defendant; and 2. the instrument that caused the injury must have been within the control of the defendant.

A plaintiff is not required to conclusively eliminate all other possible causes of his injury, but as the evidence supporting the two elements must afford the jury a rational basis for concluding that it was "more likely than not" that the injury was caused by the defendant's careless conduct.

The landmark case for the application of res ipsa is Byrne v. Boadle from the British Court of Exchequer in 1863. In Byrne, the plaintiff was stuck and injured by a barrel of flour that fell from the window of the defendant’s warehouse. Ruling that the plaintiff was entitled to a presumption of negligence on the part of the defendant, the judge concluded that "a barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous."

Res ipsa loquitur, having been embraced by Louisiana law, was applied by the Court of Appeal in Copes v. Copeland Building Supply, 415 So.2d 264 (La. App. 2d, 1982). The Copes family contracted with Copeland for remodeling work on their home in Pioneer, Louisiana. Copeland delivered several bundles of drywall to the Copes residence, which were stacked in a hallway against a newly constructed wall. Sonia Copes, then age 11, while walking nearby noticed that one of the bundles had begun to fall; in her attempt to right the bundle, the rest of the wallboard fell against her, pinned her down, and broke both of the bones in her right forearm.

The Copes family brought suit against Copeland, arguing that the accident resulted from Copeland’s negligence in the unloading of the drywall. The trial judge found that the accident was caused by negligence in stacking the wallboard and rendered judgment against Copeland, who appealed.

The Louisiana Court of Appeal determined that res ipsa loquitur was properly applied to the situation based on the following factors:

1. The wallboard was under the control of Copeland, who had delivered it to the Copes’ home and stacked it in the hallway. 2. The falling of stacked wallboard is an accident which ordinarily does not occur in the absence of negligence. The evidence of the circumstances surrounding the stacking of the wallboard was more readily accessible to Copeland than to the members of the Copes family because Copeland's employees unloaded the truck. The occurrence of the accident created a presumption that Copeland's employees who stacked the wallboard had done so negligently, and Copeland did not rebut the presumption of negligence created by these facts.

The Copes case is an example of a fairly straightforward application of the res ipsa loquitur doctrine, but not all situations are so clear.

Continue reading " Falling Drywall Case Demonstrates the Concept of Res Ipsa Loquitur in Tort Actions " »

On April 17, 1968, Doris Brantley of Oak Grove, Louisiana was involved in an automobile accident when her car struck by a vehicle driven by Albert McKee. Mrs. Brantley was immediately taken to a local hospital and was released the next day. Her painful injuries included numerous abrasions, bruises, and lacerations, as well as trauma to her neck, back, and knees. She received care from a general practitioner for several weeks following the collision and then sought treatment from an orthopedic surgeon in Greenville, Mississippi.

At the time of the crash, Mrs. Brantley was 40 years old and in good health. She worked at the Lamont Glove Factory in Oak Grove as an inspector, where she earned $1.92 per hour. The trial court awarded Mrs. Brantley $5,000 for her personal injuries resulting from the accident, and an additional $1,313.85 for her lost wages and expenses she incurred in repairing her car. Mr. McKee, the other driver, appealed the judgment on the sole basis that the damages awarded by the trial court were excessive.

The principle that "much discretion" must be afforded the trial judge or jury in awarding tort damages has been a part of the Louisiana Civil Code since 1825. (Currently, the provision resides in Section 3 of Article 1934.) According to William A. Sherwood, who wrote about this matter in a note that appeared in the Tulane Law Review in 1974, its inclusion in the Code

demonstrates a legislative recognition that damages for the repair of [tort] offenses . . . are necessarily arbitrary and incapable of exact measurement. Hence, much discretion in their assessment is left to the trier of fact who can directly observe and evaluate the witnesses, their demeanor, and their credibility.

The Louisiana appellate courts have similarly embraced this idea. For example, in the case of Walker v. Champion, 288 So.2d 44 (La. 1973), the Louisiana Supreme Court affirmed a trial judge’s award of $100,000 for the plaintiff, an 18-year-old who lived in Clarence, who lost an eye when the defendant threw a beer bottle at him.

In Mrs. Brantley’s case, the Court of Appeal reviewed the trial judge’s analysis of her losses due to the wreck, stating that "having a firm conviction that it is the duty of our courts to take a realistic approach to the quantum of awards . . . we conclude the trial court did not abuse its discretion in awarding Mrs. Brantley $5,000 for her injuries" Brantley v. Employers Liability Assurance Corp., 232 So.2d 825, 826 (La. App. 2d Cir. 1970). The court also found that the damages for lost wages and expenses were proper, and upheld the trial judge’s total award.

A jury’s discretion in setting tort damages continues to be well recognized in modern litigation. The victim of a car accident or other catastrophe needs a lawyer who can clearly establish the extent of her pain, suffering, lost income, property damage, and other challenges for the jury so its members can award her the judgment she deserves.

Continue reading " Juries Afforded Much Discretion in Awarding Tort Damages From Car Accidents " »

In 1984, a natural gas pipeline exploded in the parish of West Feliciana resulting in death and destruction to people and property. The pipeline was owned and operated by Texas Eastern and Clarkco was performing work on the pipeline. The pipeline was on Mrs. Winters’ property and Clarkco sued Mrs. Winters for general allegations of negligence or strict liability with regards to the pipeline.

You may have heard the term strict liability before but you are not certain as to what the term actually means. Strict liability means that a person is responsible for damage or loss caused by his or her actions or omissions even if the person is not at fault.

It is irrelevant if that person attempted to take all the possible precautions to prevent injury concerning strict liability cases. With strict liability, the court simply says the person is guilty. It is important to note that not all injuries stem from strict liability crimes. The most common incidences involve people who own wild animals and people who deal with inherently danger instruments. This means that the object itself is very risky to try to control.

An example of this would be if your neighbor owned a pet bear and one day the bear got loose and bit you. The court would not consider how careful your neighbors were when then trained the bear or how big the padlock on the cage was. They will simply see that they took such a big risk in owning a bear, that they are liable. Similarly, if you attend a neighborhood firework display and you are injured, the court also looks at the individual who chose to handle the fireworks, which are considered dangerous instruments. Again, you would likely win against them in court simply because they were utilizing something dangerous that was under their control.

In the pipeline explosion case, the court could not hold Mrs. Winters strictly liable or negligence because she was only the landowner – she had no control over the pipeline. Since she did not own it, she had no duty or authority to maintain or inspect it and therefore was not liable. The first element in a negligence claim is that the defendant must have a legal duty. Here, since Mrs. Winters had no legal duty with regards to the pipeline, there is no possibility of negligence in the performance of a duty

More so, since Mrs. Winters did not own, control, or have the care of the pipeline, she cannot be strictly liable for damages caused by it. Again, strict liability is based upon the ownership, custody, or control of the property causing damage. Other Louisiana have also said that landowners cannot be held liable simply because of their status as a landowner with regards to construction and maintenance of pipelines.

In sum, sometimes individuals take risks and gambles when they decide to try to be in control of something. If it results in an injury, they are automatically at risk. Therefore, think carefully before deciding to be in control of something that is inherently dangerous, such as fireworks at your Independence Day barbecue. Reasons for strict liability are to dissuade reckless activities and to try to reduce the number of injuries.

Continue reading " Questions on Strict Liability and Negligence Answered Stemming From West Feliciana Explosion " »

As discussed in the last post on the topic of traffic accident reconstruction, experts can play a pivotal role in the outcome of a case. Many accident victims can benefit from the opinion of reconstruction experts in establishing the at-fault party in a crash. Key to achieving this result is officially qualifying the reconstruction expert in the eyes of the court. Though a person may represent himself as qualified to analyze traffic accidents and offer an opinion on its cause, it may be quite another matter for the court to accept the opinion and permit the jury to consider the expert’s testimony.

The case Wilson v. Woods, 163 F.3d 935 (5th Cir. 1999) helps to explain the trial court’s role in evaluating the qualifications of a self-proclaimed accident reconstruction expert. The case arose out of an automobile accident in which the defendant, driving a tractor-trailer, collided with the defendant’s car at an intersection in Yazoo City, Miss. The plaintiff claimed that the defendant was negligent because at the time of the crash he was operating his truck at a speed in excess of the posted limit of 55 MPH. In support of this theory, the plaintiff sought during her jury trial to qualify her witness, Mr. Rosenhan, as an expert in accident reconstruction. Rosenhan was to testify that, based upon his review of the police’s accident report, he calculated that the defendant’s truck was traveling 63 MPH at the time of the collision. The defendant objected, arguing that Rosenhan was not qualified to render an expert opinion on the crash. After substantial analysis, the district (trial) court refused to qualify Rosenhan as an expert witness and did not allow the jury to hear his testimony. When the jury returned a verdict for the defendant after the plaintiff could not otherwise prove her speeding theory and establish the defendant’s negligence, the plaintiff appealed on the issue of the trial court’s exclusion of Rosenhan’s testimony.

The appellate court recalled its prior decisions establishing that district courts are given "wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge ... will not be disturbed on appeal unless manifestly erroneous." Watkins v. Telsmith, Inc. 121 F.3d 984, 988 (5th Cir.1997). It also referenced the Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which the Court instructed district courts to function as gatekeepers and permit only reliable and relevant expert testimony to be presented to the jury. When the appellate court considered the matter of Rosenhan’s expertise as analyzed by the district court, it found he had earned both a bachelor of science degree and a master of science degree in mechanical engineering, but he didn’t complete his doctorate degree. Rosenhan taught courses in mechanical engineering and industrial engineering at various colleges and vocational schools.During his 25-year consulting career, Rosenhan’s work focused on fire reconstruction and investigation; however, he testified that he had only recently changed his specialty to car accident reconstruction.

The appellate court further considered that the defendant’s counsel questioned Rosenhan and established that:

- although Rosenhan taught college level courses, he never held professorial rank; - he never taught an accident reconstruction course or any other course that involved automobile accident reconstruction; - he had no degree or certification in accident reconstruction (but he was enrolled in a correspondence course from the Northwestern Traffic Institute); - he had not completed the requirements for certification by the Association of Accident Reconstructionists; and, - although he had testified in various cases, one court had refused to qualify him as an expert in vehicle accident reconstruction based on his lack of qualifications.

Finally, the appellate court noted that the district court judge personally questioned Rosenhan and ascertained that he:

- had never conducted any studies or experiments in the field of accident reconstruction; - did not take any measurements or collect any data from the accident scene in this case; - did not examine the tires or other mechanical parts involved in the accident; - based his calculations on publicly accessible data published by the National Highway Transportation Safety Administration; and, - was unable to show that his training or experience as a mechanical engineer gave him expertise in the field of accident reconstruction that was distinguishable from training received by other mechanical engineers.

Based on all of these facts, the appellate court found that Rosenhan’s expertise in the area of accident reconstruction was “legitimately in doubt” and that the district court, therefore, “appropriately exercised its gatekeeping responsibility and did not abuse its discretion in refusing to qualify the witness” and permit him to testify for the jury. The appellate court affirmed the jury verdict for the defendant.

The Wilson case illustrates the importance of ensuring that an accident reconstruction expert’s qualifications will be accepted by the court so that the expert’s testimony will be heard by the jury. This is especially true in situations like this one where the expert’s opinion is absolutely critical to the victim’s recovery. If you have been injured in a car accident, you need a lawyer who not only knows the law, but also knows who you can rely on for expert testimony to win your case and get the recovery you deserve.

Continue reading " Choose Your Traffic Accident Reconstruction Expert Carefully When Suing For Car Accident " »

In 2010 the St. Landry Sheriff's Department welcomed a traffic accident reconstruction expert among its team as Captain Brian Hundley successfully completed a course on accident investigation and reconstruction. Especially in fatal accidents or in cases where there are no eye-witnesses, car crash experts can play a pivotal role in determining the most probable explanation for how the accident occurred.

In an investigation, a crash reconstruction expert must rely heavily on evidence gathered by the police at the accident scene. Although the expert can consider a variety of physical evidence, including the road layout and traffic markings, tire skid marks, and the damaged vehicles themselves that remain after the occurrence of the crash, much of the expert’s analysis must be based on observations made after the event. For this reason, it is critical that police officers who respond to an accident scene are extremely diligent in preserving and recording evidence once the medical needs of the victims are addressed.

The reconstruction expert will review photographs of the roadway and vehicles and obtain detailed measurements of the site in order to create a diagram of the situation. This diagram is important for establishing the vehicles’ positions both before and after the impact.

The expert will also observe the various environmental factors that can influence the safe operation of vehicles. Common roadway factors include the surface material of the road, the slope of the lane, traffic signals and signage, the curve of the road, the presence of guard rails or other barriers, proximity to bridges, tunnels, or other structures, objects that impede the view of oncoming traffic, and whether the road itself has been properly maintained. Hazards such as potholes, pavement cracks, and debris can substantially impact roadway safety, and government authorities are required to observe certain standards aimed at reducing these dangers. Weather is also a major factor in motor accidents, and so the expert will look for this information on the police report and will also attempt to confirm the police officer’s observations by consulting local weather reports. Similarly, lighting (or the lack of it) plays a significant role in night-time collisions, and the expert will take note of any street lamps or other sources of illumination at or around the scene to confirm the information in the police report.

The crash expert’s advanced knowledge of physics and mathematics is applied to all the physical evidence he or she can gather. In addition, the expert will review and analyze all eye-witness statements taken by the police and, when possible, speak directly to witnesses to confirm their observations. The expert may also check the drivers’ motor vehicle records for evidence of inexperience or violation history in an effort to reach a conclusion about how the accident occurred.

Although many traffic accident reconstruction experts like Captain Hundley work for local law enforcement departments, some are also available in the private market to support car crash victims and their attorneys in lawsuits against negligent drivers. An expert’s opinion can dramatically influence the outcome of a case, particularly when the expert can establish credibility with the jury and serve as a resource for explaining complex matters related to the physics of the crash.

A reconstruction expert is of little value to a victim, however, if the expert cannot substantiate his or her education, credentials and experience for the court. In the next post on this topic, we will explore the role of the trial court in evaluating the qualifications of these experts, and highlight the reasons it is critical that accident victims work with an attorney who understands what to look for when hiring one of these experts.

Continue reading " St. Landry Parish Car Crash Expert's Duties Help Police Understand How Accidents Happen " »

Louisiana workers' compensation law creates a system that provides medical treatment and monetary income to employees who suffer injuries while on the job. The law is designed to benefit both employees and employers. Workers are protected against the difficulties that result from job-related injuries such as the expenses of medical care and lost wages from being unable to work. An injured employee can receive bi-weekly income payments and free medical treatment, but must forfeit any right he may otherwise have under the law to sue his employer over the injury. The employer benefits by avoiding a potentially costly and unpredictable lawsuit in exchange for accepting limited liability under the structured system that seeks to protect the interests of both parties. Under this system, the issue of fault or negligence is not at issue—it is enough for the employee to show that he suffered an injury while performing work for his employer.

One important procedural obligation on the part of an injured worker is that he must report the injury to his employer in a timely manner. According to Louisiana statute,

No [claim] for compensation shall be maintained unless notice of injury has been given to the employer within thirty days after the date of the injury or death. This notice may be given or made by any person claiming to be entitled to compensation or by anyone on his behalf. La. R.S. 23:1301.

Although notice is always required, the 30-day window is not absolutely inflexible. Louisiana statute further provides:

A notice given under [the workers’ compensation law] shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature, or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to his detriment thereby. Lack of notice or delay in giving notice shall not be a bar to proceedings … if it is shown that the employer, or his agent or representative, had knowledge of the accident or that the employer has not been prejudiced by such delay or lack of notice. La. R.S. 23:1305.

The sufficiency of notice given well outside of the 30-day statutory window was central to the case of Hammock v. Weyerhaeuser, 917 So. 2d 733 (La. App. 2005). In this case, David Hammock worked at the Weyerhaeuser lumber mill in Dodson, Louisiana. Hammock’s job required him to move 3,000-pound loads of wood from a conveyor belt to a stacking machine using a motorized buggy. In August, 2002, a load of wood fell off the stacking machine; Hammock and a co-worker were then required to manually move the load back onto the machine. Hammock claimed that in the course of this operation, he felt "a popping in [his] lower back and a tingling in [his] legs." Hammock did not report the incident, but mentioned to his co-worker that he thought he felt "something" in his back. Over the next several months, Hammock told other co-workers about the incident and complained about back pain but did not make a formal report the incident until January 6, 2003. In his report, he wrote "do not know" in the field for "Date of Accident" and wrote "3 mos. ago" in the field for "Time of Accident." Weyerhaeuser disputed that Hammock’s injury was work-related and sought to avoid providing Hammock with workers’ compensation benefits in part based on the late notice of injury.

At the hearing before the Workers’ Compensation Judge (“WCJ”), Hammock testified that one of the reasons he didn’t immediately report his injury is that he worried it would prevent him from being offered a promotion. Further, Hammock feared that a reported injury might lead to the closure of the Dodson plant. The WCJ concluded that Hammock “was, in fact, involved in a work-related accident." And that his "perception that the reporting of accidents was unfavored by [Weyerhaeuser] had a plausible basis and it cannot be used to preclude workers' compensation benefits." The WCJ ordered Weyerhaeuser to pay benefits to Hammock, awarded him attorneys fees, and required Weyerhaeuser to pay a $2,000 penalty for unreasonably denying Hammock’s claim. Weyerhaeuser appealed the WCJ’s decision to the Louisiana Court of Appeal.

The Court of Appeal confirmed that under Louisiana law, "a plaintiff in a workers' compensation action has the burden of establishing a work-related accident" Graham v. Nissan 907 So. 2d 213 (La. App. 2005). After reviewing the statute that requires an injured worker to give his employer notice of an injury within 30 days, the court explained that a delay in reporting an injury is "not fatal to a claim" for benefits. "This is especially true," the court continued, "when the delay is of a relatively short duration."

The court acknowledged that Hammock’s reporting delay was "not of a short duration," and further found Hammock’s fear of retaliation by Weyerhaeuser was not justified. Nevertheless, the court conceded that his worry the accident would be held against him was a "genuine and honest explanation for his failure to report the incident for three months." The court concluded that "despite the extended delay in reporting the accident, [Hammock] carried his burden of proving that he suffered a compensable injury as a result of a work-related accident,” and affirmed the award of compensation by the WCJ.

Although the court’s ruling ultimately turned out favorably for Mr. Hammock, this case demonstrates the critical nature of the worker’s responsibility to report an injury within a reasonable time. Had Mr. Hammock reported his injury to Weyerhaeuser within 30 days of the incident, he would likely have received his benefits without the need for a lengthy judicial process that concluded more than three years after the injury occurred.

If you have been injured on the job, talk to an attorney who can help you understand your rights and responsibilities under the workers’ compensation law and help you get the benefits your deserve without delay.

Continue reading " Workers’ Compensation Case at Dodson Lumber Mill Shows Importance of Reporting a Work-Related Injury in a Timely Fashion " »

Fleeing the scene of an escalating argument, a driver injured two persons when he ran over them with his car. The incident happened in Minden on February 7, as reported by Jana Ryan. Local authorities believed the victims were merely bystanders and were not part of the argument. After brandishing a gun, the driver attempted to leave in his car, and he ran over the bystanders while trying to back away. The driver was later arrested on criminal charges of aggravated assault and aggravated battery stemming from the incident.

Events like this one often bring criminal charges against the person who injures another. However, the driver in this case may also be civilly liable to the injured victims; that is, in addition any criminal conviction, a court can hold him financially responsible for the injuries that resulted from his actions. To be held civilly, or financially, liable to a victim, generally a person’s actions must be the legal cause of the victim’s injury. The law does not even require that the person have intentionally injured a victim; a careless, or negligent, act may be sufficient to establish liability.

It is important to keep in mind, though, that criminal law and civil liability are administered very differently and that criminal convictions and civil remedies are distinct under Louisiana law. A conviction by a criminal court does not automatically ensure that a civil court will hold a convicted defendant financially liable for the injuries he caused. Nor will a person found innocent be guaranteed immunity from civil liability. Each type of court requires attorneys to establish different elements, and criminal courts require them to prove those elements with more certainty. This is true even if key words, such as "assault" and "battery," seem to mean essentially the same thing in each court.

The crucial point to remember is that a person’s actions in one instance may result in both criminal and civil liability. The two are distinct arms of the legal system. The fact that one arm has administered its form of justice does not prevent the other arm from doing the same. If you have been injured by a person who was arrested for those actions, you may be entitled to financial compensation from that person as well.

Continue reading " Hit-and-run Incident Illustrates Civil and Criminal Trial Issues " »

As reported on nola.com earlier this year, a $1.56 million project to build a 5.5 mile guardrail along Airline Drive is complete. The guardrail is a much needed addition, designed to prevent motorists from plunging into the canal, and is something that area residents have been calling for years.

The rail, from St. Rose to Norco has already stopped at least one vehicle from going into the canal. Around the beginning of 2010 a car hit the rail just east of Ormond Boulevard in Destrehan but didn't go in.

Before the guardrail the area was the site of many deadly accidents over the years. In 2003 alone six people died in two accidents and one family in particular suffered a devastating loss.

Sandra and Allen Washington lost four children in an accident in 2003 after the car their oldest daughter was driving ended up in the canal.

"It's bittersweet," Sandra Washington said of the improvements. "It was a terrible tragedy for our family, but some good things came out of it that will save people's lives."

Car accidents can certainly have tragic, life-changing results, as was the case for the Washington family. Sometimes an accident is not the result of poor driving, but of deadly road conditions. In this case it took years of accidents for the affected cities to finally take preventative action. Depending on the amount of notice a municipality has regarding accidents in an area and the danger it presents to drivers, there are certain legal options available to the survivors of the accidents or the families of those who unfortunately are killed in the crash. Discussing these options with an attorney can help make sure that difficult expenses resulting from the crash can be covered and that some type of financial recovery may be had.

If you or someone you love was injured in an accident and you feel that the conditions of the road were to blame it is important that you have an experienced attorney on your side to ensure you receive the compensation you deserve from your insurance company or even from the municipality responsible for the unsafe conditions.

Continue reading " Dangerous Louisiana Road Conditions and the Damage Caused " »

Policy makers have expressed doubt multiple times this year about whether enough is being done to protect the millions of drivers on the road. The recent Toyota recall of a multitude of cars with defective parts is a clear illustration of product liability and the measures to which a manufacturer is liable for problems with their items.

Representative Darrell Issa of California, the leading Republican on the Committee, complained during the hearings held regarding the automobile issues that Toyota knew about sticking gas pedal problems and improperly placed floor mats for years and delayed addressing the problems on cars sold outside of Japan.

Although the exact cause of the safety lapses is undetermined at this point, politicians have their own theories, as expressed at back-to-back congressional hearings just a few days. Business Week, for example, reports that John Mica, a Republican Congressmen from Florida, believes Toyota saved millions of dollars in 2007 by knowingly delaying a recall over unintended acceleration matters.

Despite the Department of Transportation and Toyota are taking steps to ensure those driving recalled vehicles get the problems corrected, accidents have undoubtedly occurred as a result of faulty car parts. Some of the blame may fall on the National High Traffic Safety Administration ("NHTSA"). The Shreveport Times reported that Democratic Representative Edolphus Towns of New York noted that the NHTSA

"failed to follow through aggressively on thousands of complaints dating back a decade about sudden acceleration in Toyota vehicles."

Although it is no excuse for car accidents, if drivers are injured, they have legal redress.

In Louisiana the party at fault for an accident is responsible for all damages. This includes the cost of current and future medical care for anyone injured, property damage, compensation for lost wages, or even compensation for pain and suffering. If someone has died in an accident, their survivors may pursue a wrongful death claim against the party at fault. Wrongful death damages that may be collected depend on the relationship between the person who has been killed and the person bringing the claim. For example, a parent who loses a child may recover for loss of companionship or a spouse may recover for future lost wages.

If a Toyota driver is in an accident while driving a recalled vehicle, the case becomes one of products liability. Product manufacturers, retailers, or anyone else who has come in contact with a product may be liable if the product malfunctions and the malfunction causes an injury. There are typically three types of products liability cases: manufacturing defect, design defect, and failure to warn. Manufacturing defects occur during the manufacturing process and typically involve poor materials or workmanship. Design defects occur when the product design is inherently dangerous. Failure to warn problems involve products that have inherent, non-obvious dangers. Products liability issues are very complicated and require extensive research to prove each element of liability.

If you feel that you have been injured while driving a recalled Toyota vehicle or have been injured in any auto accident that was not your fault it is imperative that you have an attorney experienced in the intricacies of accident injury law. Please call the Berniard Law Firm Toll-Free at 1-866-574-8005.

Some time ago in Louisiana a young Reserve boy fell asleep on his school bus and awoke to find himself alone in the parking lot of the St. John the Baptist Parish School District central office. The upset kindergarten student stumbled into a school board meeting in progress and interrupted the proceedings with a frantic knock on the door. His parents were called and he was taken home unharmed, but the incident was a cause for concern among the School Board. So much so that Superintendent Courtney Millet called an emergency meeting with district bus drivers shortly thereafter.

As noted in an L'Observatuer article,

Millet said at the well-attended meeting she went over a list of notes concerning bus safety.

"They play such an important role," said Millet.

She said she wanted to gather everyone together to make sure they were all on the same page.

"In our system, we all have to work together," she added.

The meeting provided an opportunity to go over the safety procedures every driver in the district must follow. Particularly, checking the bus before a route begins and again after a route ends to ensure all children have safely gotten off the bus. Formal disciplinary action will not be taken about the bus driver in this case because he was a substitute. However, according to Millet, he will not be substituting again.

Even though the young child was not physically injured here, he easily could have been. In any event, important legal issues have been raised regarding possible legal claims the child or others in similar situations may have.

Negligence is a tort (or "civil wrong") that is generally defined as conduct that falls short of what a reasonable person would be expected to do to protect another individual from harm in a given situation. If successful in a negligence lawsuit, the injured party may obtain financial compensation for physical and mental injuries from the negligent party. This could include include coverage of medical expenses, compensation lost wages, or payment for pain and suffering.

It is of particular importance that compensation for mental as well as physical harm is recoverable in a negligence lawsuit. Here, if the child suffered harm to his mental well being due to the trauma of being stranded on the bus he may be able to recover financially. His parents may have also suffered mental harm when they did not know where there child was when he did not come home after school.

Proving negligence requires proof of four elements. First, the negligent party must have owed a duty to the injured party. Duty implies a special relationship or can be established by law. Second, the duty must have been breached. Third, the breach must have caused the injury. There are two elements of causation; actual and proximate cause. Actual cause or cause in fact means that the injury would not have occurred but for the negligent action. Proximate cause goes further and requires that the injury was forseeable given the breach of duty; that the injury naturally resulted from the breach. Fourth, Damages must have resulted from the injury. While damages must be proven in the claim they are not the focus of a negligence lawsuit.

Continue reading " Cautionary Tale of Boy Left on School Bus Helps Explain Negligence Cases " »

According to a recent ABC News report, court documents from a class-action lawsuit against that has been filed against Toyota claim that the company is in possession of documents that show that the automaker documented confirmed cases of sudden acceleration without driver error as many as 7 years ago. Other alleged company documents show that Toyota has been able to recreate instances of sudden acceleration, again without driver error, within the last year.

The documents are referred to in a revised complaint that has been filed against Toyota in U.S. District Court for Southern California. In the suit, forty Toyota owners claim that sudden acceleration problems has caused them financial harm by reducing the resale value of their cars. The suit claims that, "Toyota failed to disclose that its own technicians often replicated sudden acceleration events without driver error."

In a 2003 document quoted in the complaint, a technician reported a sudden acceleration incident where he found a "mis-synchronism between engine speed and throttle position movement." The technician requested immediate action to correct the dangerous problem. Another document, from 2005, involved a Toyota dealership report that states that a dealer verified two separate acceleration incidents with a Toyota Sequoia. A 2003 report described what was called a "surge event," despite no trouble code on a scan tool. According to consumer safety experts, many of the sudden acceleration problems could be resulting from a defect in Toyota's electronic throttle control systems. The company has repeatedly denied that the vehicles have electronic problems.

This lawsuit was filed amidst reports that the National Highway Traffic Safety Administration was preventing the release of information that proved that the acceleration problems actually did result from driver error, and implied that drivers mistakenly pushed the wrong pedal. The lawsuit fights back against these reports and claims that Toyota has acted recklessly in their strategy to deal with the complaints---blaming all of the problems on driver error.

While this particular lawsuit has claimed that defective Toyotas led to financial harm for owners in the form of decreased resale value, Toyota is also facing lawsuits from people who have been injured during acceleration incidents. Recovery in those suits will depend on being able to prove Toyota's liability for injuries one of four ways:

1. Negligence-If Toyota acted negligently in the manufacturing of their products and did not take reasonable care when they should have they can be held liable. The negligence could have occurred through using defective parts or improper assembly techniques if they added up to dangerous or malfunctioning products. If it can be proven that Toyota knew about problems and did not correct them, they undoubtedly acted below the appropriate standard of care in the manufacture of their products.

2. Breach of warranty-If Toyota sold vehicles to customers and did not uphold claims or promises made about their products they can be held liable. If Toyota has made claims about safety or promises about correcting acceleration problems that were not corrected, warranties may have been breached.

3. False Advertising- If Toyota ads led customers to believe that their products are safer then they actually are or distracted them from inherent risks in using the vehicles they can be held liable. If Toyota advertising promised no acceleration problems or that they have been corrected and they were not, they could be held liable here.

4. Strict Liability-Strict liability will exist here if Toyota, as the manufacturer or seller of a defective product, is found responsible for all injuries that occur from the use of the product. Victims in this case must show that the vehicles were defective and the defect caused the injury. If this is proven, liability exists regardless of a finding of fault on Toyota's part.

If you drive a Toyota car or truck and were injured or otherwise negatively affected by an acceleration problem you may be able to recover damages. Please contact an attorney experienced with product defect cases as soon as possible to ensure that each of the proper steps are taken to increase your chances of recovery.

In the late evening of May 28, 2006, Grant Lee Williams and his girlfriend, Lisa Lobrano, visited the Saddle Ridge Bar at the Louisiana Boardwalk in Bossier Parish. Also at the establishment was Michael Moore, who at one point approached the bar where Lobrano was sitting and tried to pick her up. Williams observed that Moore inappropriately touched Lobrano and hurried over to fend him off. Williams told Moore that he was Lobrano's boyfriend and warned him to leave her alone. After this exchange, Williams and Moore turned together toward the exit and within a moment, Moore struck Williams in the face. Williams, having sustained multiple fractures to his face and a broken nose, sued Moore for battery.

Much conflicting evidence was presented at the bench trial. Lobrano testified that she did not see either man hit the other, but that as she got up from the bar she turned to see Williams with blood on his face before he fell onto the floor. At that point, according to Lobrano, Moore kicked Williams several times in the ribs. Williams admitted in testimony that he may have pushed or bumped Moore as they walked away from the bar, but that he was blindsided by Moore's punches. Williams also testified that Moore kicked him in the ribs after he fell to the floor. Moore denied ever touching Lobrano and testified that Williams approached him at the bar, pushed him, and then punched him in the eye. Moore explained that he swung at Williams and admitted he must have hit Williams since it was clear that Williams was injured. Several other bystanders offered testimony, but none saw exactly who threw the first punch.

The trial judge did not determine who hit first, but found that both Williams and Moore were equally at fault for the altercation. The judge awarded Williams general damages in the amount of $40,000 and $30,901 for medical costs, but reduced the total award by half in light of Williams's own fault.

On
appeal, the Second Circuit Court of Appeals observed that "an appellate court generally reviews the factual findings of a trial court according to the manifest error standard of review." Powell v. Regional Transit Authority, 695 So.2d 1326 (La. 1997). In other words, the appellate court must give great weight to factual conclusions of the trial judge. Where there is conflict in the testimony of witnesses, the trial judge's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are just as reasonable as the trial judge's.

In his appeal, Moore argued that he acted in self-defense. This is an "affirmative defense" which could have excused Moore from fault, but because he failed to raise it at the trial, the appellate court could not consider it. Instead, the court noted that "it is undisputed that Moore hurt Williams and that Williams did not deny initiating contact with a 'bump'" and concluded that "if only different choices were made by both parties during the heat of the moment, the altercation could have been avoided." Accordingly, the court affirmed the trial judge's holding that Moore and Williams were equally at fault, and upheld the award of damages to Williams in the amount of $35,450.

The failure of Moore's self-defense claim on appeal demonstrates the importance of making all available and proper arguments at the trial level so they are not foreclosed in future proceedings. Retaining competent trial counsel can ensure that no critical arguments are overlooked at the stage when they must be put forth or lost forever.

Continue reading " Louisiana Fist-fight Illustrates Appeal Process, Injuries and Damages " »

As most motorists are aware, Louisiana law requires that the driver of a vehicle involved in an accident must stop the vehicle at the scene, give his or her identity, and provide reasonable aid to anyone who may be injured as a result of the crash. La. R.S. 14:100. The failure to do so is often called a "hit and run" accident, and in many cases the accident victim has no way to track down the fleeing driver.

In Louisiana Farm Bureau Casualty Insurance Co. v. Hayden, No. 2010-CA-0015 (La. App. 4th Cir. 2010), the witness to a hit-and-run collision played a critical role in the resolution of the case. On February 18, 2007, William Dunham was driving his car in New Orleans near the intersection of Howard Avenue and Loyola Avenue. A silver Ford Taurus ran the red light at the intersection and hit Dunham's car broadside. The driver of the Taurus continued on and fled the scene. Orelia Jones, who was riding in her sister's car, happened to see the collision. Jones and her sister followed the Taurus until Jones was able to write down the car's license plate number. She then returned to the scene of the accident and shared her information with the police.

The police traced the license plate number provided by Jones to a 2003 Ford Taurus owned by Amy Lips Hayden of Mandeville. Dunham's insurance company, Louisiana Farm Bureau, sued Hayden for the damage to Dunham's car in the accident.

At trial, Jones testified about the events that followed the crash. She said that she was one or two car-lengths away at the time she wrote down the fleeing car's license plate number, but she could not identify the driver of the car. She also testified that she did not know the make and model of the vehicle, stating "I'm not good at make and models of cars." When shown photographs of the Taurus and asked if it was the vehicle involved in the accident, Jones stated that it was.

Hayden testified that she was not in New Orleans on the date of the accident. She explained that she would have been at home in Mandeville because she did not come to New Orleans very often, especially during Mardi Gras. When asked if anyone else could have been driving her car, she testified that she would have known if her son or her boyfriend had borrowed the car, but they had not. When asked about the scuffs on the Taurus's front bumper and cracked grill that were evident from photographs taken several months after the accident, Hayden claimed they were already on the car when she purchased it, used, about six months before the incident. The trial court concluded that Hayden's vehicle was the one involved in the accident, that it caused the accident, and that its driver fled the scene. The court awarded Dunham $11,318 in damages, and Hayden appealed.

The Court of Appeals reviewed Louisiana's "manifest error" standard of review for factual determinations made by the trial court. This means that a trial court's factual findings cannot be reversed on appeal unless the appellate court finds that the trial court's determination was "manifestly erroneous" or "clearly wrong." Detraz v. Lee, 950 So.2d 557, 561 (La. 2007). When findings are based on the trial court's evaluation of witness credibility, the manifest error standard of review

"demands great deference to the trier of fact's findings because only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

In applying these principles, the court held that the record provided a reasonable factual basis for the trial court's findings, and that there was no reason to conclude that the trial court was clearly wrong or manifestly erroneous in giving more weight to Jones's testimony than to Hayden's. Accordingly, the court affirmed the trial court's judgment.

The Hayden case demonstrates how the outcome of a trial can turn not only on the content of a witness's testimony, but also on the credibility afforded that testimony by the judge or jury. For this reason, it is essential that an accident victim retain competent counsel with substantial trial experience. Doing so can make sure that witnesses are asked the proper questions that avoids any sort of deceit or guessing in court and, instead, sticks to the facts that cannot be disputed.

Continue reading " New Orleans Hit-and-Run Case Turns on Witness Testimony " »

Several prior posts have examined the critical role that expert witnesses can play in a personal injury lawsuit. The Peoples v. Fred's Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010) case offers a similar example of how expert testimony can be invaluable to a plaintiff. (For a brief background on this case, please see Part 1 of this post series.)

In addition to the dispute over notice, Fred's Store's appeal also challenged the trial judge's admission of testimony by Peoples's expert witness, Michael Frenzel. Frenzel was a board-certified safety professional who owned a company that offered safety program mangement services. At the time of the trial, he had 35 years of experience in the safety field. Prior to the trial, Frenzel reviewed the accident report, photos of the accident scene, and a diagram of the store. He also personally visited the Fred's Store in Tioga to view the premises. Frenzel testified that the two gazebo boxes that Peoples tripped over "amounted to a trip hazard that presented an unacceptable level of risk to Fred's customers." He explained that, regardless of their precise location, two boxes laying flat on the floor would pose a risk to a customer entering the store given that the customer's attention would likely be drawn to the other merchandise. This was especially the case, according to Frenzel, because the boxes were white in color and had a low profile against the white background of the floor. Frenzel further referenced the "universal, industry-wide standard minimum height recommended for floor displays to prevent tripping hazards," and even identified a section in the store's own safety manual that addressed tripping hazards. Finally, Frenzel testified that in his opinion Peoples "did nothing wrong," and that "only Fred's could have taken corrective action in this situation."

Fred's Store sought to exclude Frenzel's damning testimony on the basis that he was not an eyewitness to the fall and therefore could not contribute to the resolution of any issues of fact. Also, Fred's Store argued that expert testimony is not necessary in a trip and fall case. The Court of Appeals cited Louisiana Code of Evidence Article 702, which provides:

"[i]f scientific, technical, or other specialized knowledge will assist the trier of fact [here, the judge] to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Furthermore, the Louisiana Supreme Court has made it clear that "a trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous." Mistich v. Volkswagen of Germany, Inc., 666 So.2d 1073, 1079 (La. 1996). Accordingly, the Appeals Court was

"convinced that the trial court did not abuse its wide discretion in allowing Mr. Frenzel to testify as an expert, given his extensive experience in the field of safety and his thorough preparation with regard to this case. Clearly, his testimony 'assist[ed] the trier of fact to understand the evidence' and 'to determine a fact in issue.'"

The testimony and, in particular, the opinions put forth by Frenzel proved extremely helpful to Peoples in winning her case. Frenzel would not have been able to offer those opinions had he not been qualified by the trial judge as an expert. A successful expert witness qualification depends not only on the witness's own education and experience, but also on the lawyer's ability to properly present the witness's credentials to the court. If you have been injured due to unsafe conditions at a store or other place of business, speak to an attorney who has solid experience in the strategies of personal injury litigation.

Continue reading " Tioga Slip and Fall Case Study Part 2: The Importance of Expert Witnesses " »

In a previous post, we explored the elements of a negligence action that arose after a customer slipped and fell on a pool of vomit left by another customer while visiting a store in Farmerville. One of those elements is "notice," or whether the merchant created or was aware of the unsafe condition that caused the plaintiff's injury. In the Farmerville case, the plaintiff was unable to show that the store owner had notice of the vomit on the floor that caused her fall, and so her suit was not successful.

The recent case of Peoples v. Fred's Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010), illustrates how the plaintiff's ability to prove notice can result in a different outcome. On August 10, 2004, Virginia Peoples and her husband, Wyndell, entered the Fred's Store in Tioga. Upon passing through the entranceway, Peoples tripped over some boxes laying on the floor just inside the door which extended into the walkway. The boxes contained gazebos that were part of a clearance sale. Peoples fell forward into a display of stacked coolers, where she hit her chin before landing on the concrete floor. Pain in her neck and right wrist, shoulder, and arm prompted her to go to the emergency room at LaSalle General Hospital, where she was diagnosed with a pinched nerve and a radicular neck injury.

Peoples sued Fred's Store for negligence, a bench trial was held, and Peoples was awarded nearly $200,000 in damages. Fred's Store appealed, arguing, among other things, that the trial judge improperly concluded that Fred's Store had notice of the improperly placed boxes that caused Peoples's fall.

On appeal, the court reviewed Louisiana's law on premises liability and the essential element of notice in a negligence action. Peoples argued that Fred's Store had notice of the boxes because store employees had created the display and therefore had placed the boxes in the unsafe location. This theory is one of "actual notice," given that the store employees who created the dangerous condition by definition had to be aware of it. At trial, Fred's Store countered that the boxes had been safely arranged by store employees, but must have been moved by other customers. The judge was not convinced: he concluded that the boxes "were part of a display that was created by Fred's" and dismissed the store's argument that other customers could have repositioned the long, 80-pound boxes (which required at least two people to pick up) without any store employees' noticing. The judge held that "Fred's did have actual or constructive knowledge of the condition." It's interesting to note that the trial judge seemed open to the argument that Fred's Store would have had constuctive notice under their own theory that customers moved the boxes, but this was not explicitly discussed. In any event, the Court of Appeals agreed that actual notice existed that found that "the record contains ample support for the factual finding made by the trial court that Fred's created the floor display that caused Mrs. Peoples to trip and fall."

The primary distinction between this case and the case in Farmerville is the identity of the party who caused the dangerous condition. Louisiana law requires merchants to exercise "reasonable care" in policing their premises for unsafe conditions caused by customers or other visitors. But a stricter standard applies when the danger is caused by store employees themselves, presumably because they are the very individuals who are charged with the duty under Louisiana law to exercise that reasonable care "to keep [the store's] aisles, passageways, and floors in a reasonably safe condition" in the first place. La.R.S. 9:2800.6.

Given the complexity and fact-intensive nature of proving notice and the other elements of a negligence case, it is critical that you have competent counsel to represent you if you have been injured due to unsafe conditions at a store or other place of business.

Continue reading " Tioga Slip and Fall Case Study Part 1: The Plaintiff's Burden of Proving Notice " »