Louisiana Personal Injury Lawyer Blog

The Berniard Law Firm is proud to announce the release of an innovative new iPhone application that can be considered a must-have for individuals in the Gulf Coast. With extensive versatility and options including multiple contact points for our attorneys, as well as consistent site updates that will keep you informed of legal developments as they become available. Released October 26, we recommend everyone download the application in order to stay abreast of a variety of issues that relate to them.

In the works for some time, and with an update already planned, the Berniard Law Firm iPhone app puts law matters that are important to Louisiana residents in the palm of their hands. Constantly refreshing, with updates relating to our website, this application is an effort by our firm to allow our friends and clients quick access and up-to-date information for their daily lives. Whether using the application to send our firm a legal question or to call our offices, we strongly encourage anyone that wants an attorney and a wealth of legal information at your fingertips.

Specifically, the Berniard Law Firm Injury Attorney iPhone App provides users
- Entry page to record important details in the event of an accident
- Minimal size installed (only 3.1 MBs)
- Practice area explanations
- Quick jumps to consistently updated blogs
- Fast contact information to speak with an attorney

One feature that is extremely important and valuable in the Berniard Injury Attorney App is the entry page. Composed of data input fields that target inherently important details of an accident, using this portion of the application can help you make sure you record all of the necessary information at a time in which it maybe be difficult to remember. Providing an easy, step-by-step accident guide, this application can even include a picture with the information report with a simple tap.

For more information on how to download this application, or to discuss your legal rights regarding an issue that you are facing currently, contact our offices today. The Berniard Law Firm would happily discuss with you what opportunities you may have within the realm of the law, as well as give you a free consultation in regards to how we can best get you the justice you deserve.

To download the application, click here.

Common in Louisiana middle schools is a disciplinary program that requires students who engage in acts of moderately serious misbehavior to stay after school in "detention." To reinforce the punitive nature of the program, many schools require a student who stays late for detention to find his or her own means of transportation home. Presumably, this requires the involvement of a parent or other responsible adult who would then be made aware of the student's misbehavior, and who could help the student correct the problem. The scope of a school's responsibility for a student's safety after she left school grounds following detention arose in the case of S.J. v. Lafayette Parish School Board, No. 2009-C-2195 (La. 2010).

On November 4, 2004, a twelve-year-old, female sixth-grader, "C.C.," stayed after school at Lafayette Middle School to serve detention. When detention concluded at around 4:00 PM, C.C. left the school with another student and walked to a nearby fast food restaurant. The two girls parted ways at the restaurant and as C.C. made her way home, she was attacked and raped by an unknown male assailant. C.C. and her mother filed a lawsuit suit against the school board, arguing that the board, through its employees at Lafayette Middle School, had failed to exercise reasonable supervision over C.C., which resulted in her being assaulted. The trial court granted the board's motion for summary judgment on the basis that the board "had no duty to safeguard a child's well-being after the child leaves the school property," and dismissed the action. The Louisiana Court of Appeal affirmed this decision, but it was then reversed by the Louisiana Supreme Court and remanded for trial. After a bench trial, the court found no negligence on the part of the school board and dismissed the plaintiffs' action. In particular, the court noted that the school discharged its duty to C.C. and the other students who stayed for detention by ensuring that none of them was left behind at the school after detention concluded without a way home. On appeal, a three-judge majority of the five-judge panel of the Court of Appeal reversed the trial court. The panel found liability on the school board's part based largely on a Louisiana statute that requires schools to provide transportation to students who live more than a mile from campus. La. Rev. Stat. 17:158(A)(1). The panel concluded the school breached its duty to C.C. by disallowing her from riding home on the after-hours bus, which was reserved for students who stayed after school for non-disciplinary reasons, and further by denying her access to a school telephone to call her mother for a ride.

On appeal, the Louisiana Supreme Court reviewed the elements a plaintiff must prove in a negligence action (duty, breach, causation, and actual damages), and noted that "whether a duty is owed is a question of law; whether a defendant has breached a duty owed is a question of fact." The court began its analysis by observing that "it is well-settled that the duty imposed on a school board with regard to children in its care is one of 'reasonable supervision.'" La. Civ. Code Arts. 2315; 2320. With respect to the question of whether this duty is expanded by the statute requiring school boards to provide free transportation for students to and from campus, the court answered that it does not. Doing so would "make a school board responsible for any and all injuries sustained by 'any student,' regardless of time, distance, and intervening factors, when those injuries would not have been suffered if the student had just been provided a free ride home."

The court noted that its review was conducted according to the "clearly erroneous" standard and that, accordingly, it was limited to determining "whether the trial court manifestly erred in finding that plaintiffs failed to prove a breach of the School Board's duty of reasonable supervision owed to C.C. in proportion to her age and the accompanying circumstances." In reviewing the facts produced at trial, the court found that the evidence supported the trial court's determination of witness credibility as well as its factual conclusions that C.C. was not denied access to a telephone and that she failed to make use of numerous alternative options for getting home. Thus, in the opinion of the court, Lafayette Middle School did not violate the duty of reasonable supervision it owed to C.C. Accordingly, the court reversed the Court of Appeal's decision and reinstated the trial court's judgment which had dismissed C.C.'s action.

Although the procedural details of this case are convoluted, it is instructive to note that its resolution ultimately turned on the basic principles of Louisiana negligence law. Once the extent of the duty owed to C.C. by the school was confirmed by the state Supreme Court (a question of law), the trial court's determination that no breach occurred (a question of fact) was deemed appropriate and left intact. For any plaintiff, the expertise of counsel well versed in negligence law is invaluable to winning the case.

Continue reading " Lafayette Parish School Board Case Provides Lesson on Duty of Care Owed to Students Who Stay After School for Detention " »

The case of Dugan v. Waste Management, Inc., was recently handed down by the Second Circuit Louisiana Court of Appeals. It is a tragic case, involving the deaths of two garbage truck employees, and the wrongful death suit that followed. In June 2007, Lamare Kindle and Wallace Bradley were riding in a garbage truck owned by Waste Management. Mr. Kindle and Mr. Bradley were both garbagemen, performing waste reduction services for Waste Management. Mr. Bradley was driving the garbage truck, while Mr. Kindle rode as passenger. As the garbage truck came upon a railway crossing, Mr. Bradley is alleged to have failed to yield and the two were both struck and killed by an oncoming freight train.

Mr. Kindle's parents, including Ms. Bonita Dugan, subsequently filed a wrongful death suit to recover for their son's death. Their theory was that, because Mr. Bradley was a direct employee of Waste Management and was acting in his scope of employment at the time of the accident, Mr. Bradley was thereby an agent of Waste Management. Moreover, because an employer can be held legally responsible for its agent's negligent actions, the parents stated that Waste Management should be held directly responsible for Bradley's negligent driving.

In spite of this usually sound legal theory, the wrongful death suit was immediately complicated by the peculiar employment relationship Mr. Kindle held with Waste Management. While Mr. Bradley, the driver, was a direct employee of Waste Management, Mr. Kindle, the passenger, subcontracted his labor to Waste Management through a temporary employment agency. A question arose: notwithstanding the subcontractual relationship, was Mr. Kindle an "employee" of Waste Management or an "employee" of the employment agency instead?

Under Louisiana law, when a plaintiff is injured during the course of his employment, he cannot directly sue his employer for harms caused by negligent or non-intentional acts. Instead, the employee must use the state's workers comp system to resolve his claims against his employer. On the other hand, if the plaintiff is not an "employee" of the defendant, the plaintiff is free to seek a typical civil remedy from the courts. As a generality, workers comp remedies tend to be modest and limited in scope, while civil remedies allow for greater monetary damages.

In the absence of a direct employment arrangement, a worker can nevertheless be an "employee" of the defendant. This scheme is referred to as "statutory employment." In Louisiana, there are two ways to be a "statutory employee." First, if a written contract expressly recognizes the defendant as a "statutory employer", then by the terms of the contract, the plaintiff is a "statutory employee" and can only seek the more modest workers comp remedies. Likewise, if the defendant satisfies the "two contract theory," (to be expained later) the plaintiff will be deemed a "statutory employee" as well. In the instant case, the court noticed that the written contract between Waste Management and Mr. Kindle did not expressly refer to Kindle as a "statutory employee." Therefore, the first method of achieving statutory employment was not met. However, a subsidiary question remained: was Mr. Kindle a "statutory employee" under the two contract theory?

The two contract theory occurs when a defendant is the principal in the middle of two contracts. More specifically, the two contract defense applies when (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to peform the work, the principal enters into a subcontract for all or part of the work performed.

In this case, Waste Management met each element of the two contract theory. First, it had contracted with Morehouse Parish, a third party. Second, the terms of the contract specified that Waste Management should dispose of solid waste in the parish, which was "work to be peformed." Finally, Waste Management subcontracted with the employment agency to fulfill its contractual obligation with Morehouse Parish. Accordingly, the court ruled that Mr. Kindle was a "statutory employee" of Waste Management under the two contract theory. This meant that workers comp was the sole remedy available, and Kindle's parents' wrongful death claim was barred.
As the Dugan case shows, the two contract theory can prevent a plaintiff's typical recovery for injuries incurred while on the job. Even temporary workers may be precluded from suing for workplace injuries, despite the fact they were never directly hired by the defendant-employer. On the other hand, "independent contractors" are not employees, and they are not confined to the workers compensation system. Indeed, they can sue in civil court for more extensive remedies resulting from on the job injuries.

If you've sustained injuries while working and are unsure of whether you are an "employee" or an "independent contractor" of the business that hired you, it's important to consult an experienced attorney before making any legal decision. Lawyers at the Berniard Law Firm can examine the various factors that define your relationship with the entity you are working for and can thus conclude whether you must file a workers comp claim or can pursue a civil remedy. Contact Berniard Law Firm today to ensure your workplace rights are adequately upheld.

Louisiana residents are becoming increasingly concerned about the drywall in their homes, which might be leaking toxins and other contaminants into the bedrooms and throughout the house depending on the manufacturer. Drywall consists of panels made of gypsum plaster pressed between two thick sheets of paper. The panels are used to make interior walls and ceilings. This is frightening for people who live in contaminated homes because of the proximity to possible toxins and poisons: literally they are just a few inches away from deadly poisons.

Many Louisiana residents have filed complaints in court about the drywall over the past few years. These lawsuits were pressed by those looking to recover the money it would cost to replace their drywall with a safer version. Since this process involves major construction, the costs are high and these people rightfully felt like they should not have to pay for unknowingly being exposed to contaminants by the manufacturer.

Because of the dangers involved, and the damage caused to fixtures and elements of the home, many are wondering how they may find out if they are living in a contaminated home. Those who suspect they have the drywall in their homes should be on the look out for health symptoms amongst their family that include runny nose, difficulty breathing, and headaches. If you or any of your family members are exhibiting these symptoms, be sure to contact an experienced attorney today. It is imperative that you act now while the courts are dealing with other cases like yours.

In the past couple months, attorneys and individuals throughout Louisiana were unsure as to how the courts would resolve this matter. Fortunately for those exposed to the defective drywall, the recent Louisiana federal district court decision is good news: a partial settlement has been reached in a class action lawsuit dealing with the defective Chinese drywall installed in homes between 2004 and 2008.

Under the settlement, the manufacturer of the drywall, Knauf Plasterboard Tianjin, will fund a program to replace drywall in about 300 homes throughout the South, including many homes in Louisiana. Many expect another 3,000 homes to receive similar help. Included in the costs will be relocation expenses and any damages to appliances and wiring which occurred as a result of the defective drywall. If you have discovered Chinese drywall in your home, it is not too late to take action to receive the compensation you deserve. The agreed to settlement will undoubtedly provide a guide for how future legal actions will be handled, meaning you might still be able to be compensated for the injuries you and your family have suffered.

Continue reading " Chinese Drywall News a Welcome Sign for Those With Toxic Sheetrock in their Home " »

In late 2007, the Tangipahoa Parish government began making repairs to Berry Bowl Road in Independence, Louisiana. One of the contracting firms the parish hired to complete street overlay work was Barriere Construction Company, LLC. On the evening of January 8, 2007, Joseph Alessi, Jr. struck a "bump" in the road with his car, resulting in substantial damage to the vehicle and injuries to him and his two passengers, Linda Alessi and Tommie Sinagra. Following the accident, Alessi filed suit against Barriere, alleging that the company's employees were negligent and liable for his damages. Specifically, the complaint alleged that Barriere was negligent in creating a defect in the roadway where vehicles were allowed to drive and failing to take reasonable measures to protect the public from the hazardous condition.

Barriere filed a motion for summary judgment, arguing that it had nothing to do with the condition of the road where Alessi's accident occurred. Barriere submitted affidavits and detailed invoices it had remitted to Tangipahoa Parish in order to be paid showing that its crews had not worked on Berry Bowl Road for at least six days prior to the accident. Additionally, Barriere asserted that the time it had last worked on Berry Bowl Road, the repairs had ended approximately 700 feet from the location where Alessi hit the bump. Barriere offered that any problemw with the road must have been caused by a Tangipahoa Parish bridge construction crew that was working in the area at the time. The district court held a hearing on the motion for summary judgment on September 28, 2009 and the next day granted Barriere's motion. Alessi appealed.

The First Circuit reviewed the district court's granting of summary judgment de novo, meaning that it examined all of the evidence in the case as if for the first time. The court explained that "summary judgment is warranted only if there is no genuine issue as to material fact." A fact is considered "material" if

"it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute.... A genuine issue is one as to which reasonable persons could disagree; if a reasonable person could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Alessi v. Barriere Construction Co., LLC, No. 2010 CA 0005 (La. App. 1st Cir. 2010).

The court weighed the considerable evidence offered by Barriere in support of its motion against the evidence presented by Alessi. Alessi's expert offered the opinion that the damage to the vehicle supports the conclusion "that the roadway was left by the contractor in a severe and hazardous condition." But while the court could accept that the vehicle's damage pointed toward the existence of a hazardous condition, it determined that "there are absolutely no facts or any evidence to support a conclusion that the condition was created by [Barriere]." Noting the deficiency of Alessi's evidence, the court stated, "affidavits that are devoid of specific underlying facts to support a conclusion of ultimate 'fact' are not legally sufficient to defeat summary judgment." Accordingly, the court affirmed the district court's order.

It is undisputed that a road crew owes a duty to motorists to take reasonable steps to ensure that the road is safe. Damage to a passing car and injuries to passengers suggests this duty was breached by the contractor who left the road in a dangerous condition without at least warning oncoming cars of the peril. But essential to establishing a defendant's negligence is connecting that defendant to the dangerous condition. Here, Alessi's claim against Barriere failed because he could not make this connection. Certainly the evidence suggested Alessi suffered a misfortune due to someone's negligence, but without more evidence tying Barriere to the incident, the court was unwilling to simply assume Barriere was responsible.

Continue reading " Tangipahoa Parish Plaintiff Defeated at Summary Judgment by Failure to Link Defendant to Negligent Act " »

A death occurred at the Chalmette Refinery on October 6 during an attempt to repair a hydrogen sulfide leak according to the St. Bernard Sheriff's office. A contract worker, Gregory Starkey, 33, of Roseland, collapsed and then died while working at the facility. Starkey was employed by TEAM Industrial Services of Harahan near New Orleans. The website for TEAM Industrial Services indicates the company specializes in industrial leak and valve repair, emission control, and other services related to mechanical and piping systems.

Exxon Mobil Corporation is the managing partner in charge of operations at the 196,000 barrel-per-day (bpd) Chalmette Refinery which is a 50-50 joint venture between Exxon and PDVSA, Venezuela's national oil company. According to Exxon spokesman Kevin Allexon, the detected hydrogen sulfide concentrations were purportedly "not considered harmful at the levels being monitored." Also, Exxon was "actively mitigating" odors from the leak. According to State Police, the hydrogen sulfide gas leak is considered contained rather than completely sealed pending delivery of a part. However, the leak was being monitored and believed to have no affect on offsite air. Nonetheless, both the leak and the fatality are currently under investigation.

The leak was first documented two days prior to the fatality and two days after had been contained but not yet completely sealed according to Louisiana State Police. As per Trooper Melissa Matey, the delay resulted from the need for a part to be delivered in order to completely seal the leak.

A spokesman for the State Department of Environmental Quality, Rodney Mallet, commented that the hydrogen sulfide was "not considered harmful at the levels tested by the monitors." However, even exposure to small concentrations can result in shortness of breath and eye irritation. Additional low dose exposure symptoms include nose and throat irritation. Exposure symptoms at higher concentrations may result in long-term and even permanent headache, diminished attention span, poor memory, and poor motor function as well as death.

Also of concern is a Labor Day accident at the same refinery wherein nineteen tons of spent catalyst rained down on an adjacent neighborhood in the form of a white powder dusting houses and vehicles. As the refinery initially reported only one ton being released, the public has been skeptical of the company and its facility. The Louisiana Bucket Brigade, a local environmental group focusing on industrial pollution, has noted the time frame of accidents. Their director, Anne Rolfes, observed that "one of the most revealing issues is that the problem came from a pre-existing leak that they had put a clamp on, and that clamp started to leak. It's really important to see the facility in context of these accidents."

Given that just a few breaths of air containing high concentrations can be fatal in combination with the worker's death, Exxon appears to be underreporting the level of hydrogen sulfide leaking during the fatal incident. The wide variety of people affected by these recent refinery spills should consider speaking to an attorney about their legal rights given the potential for current and future harm to the health of those near the incident. Whether last year's Hahnville leak or the Chalmette incidences, rights exist for those who have been affected by failures on the part of these facilities to keep the public safe. Contact a lawyer with the Berniard Law Firm today to find out your options regarding injuries you may have suffered during any of these incidences.

On October 18, 2007, Kalencia Young and her passenger, Ashley Newsome, both pregnant, were driving on DeSiard Street toward Renwick Street in Monroe. At the same time, Gerald Adams was driving toward the intersection, which was controlled by a traffic light, on Renwick Street. The two vehicles collided when Adams's pickup truck struck the passenger side of Young's car.

Officer Tobyn Berry of the Monroe Police Department responded to the scene. He questioned both drivers and inspected the traffic light to determine that it was working normally. Berry also questioned two witnesses to the accident. One of the witnesses claimed that he saw Adams talking on his cell phone at the time of the crash and alleged that the traffic light was red for Adams as he approached the interestion. Officer Berry issued Adams a citation for failing to observe the traffic signal. Both Young and Newsome were taken to the St. Francis Hospital by ambulance and were released a short time later.

Young and Newsome sued Adams for the injuries they sustained in the crash. At the trial, Officer Berry's deposition and accident report were entered into evidence. Both Young and Newsome testified, agreeing on few details except that they had a green light at the intersection. In response, Adams testified that he had the green light as he approached the intersection, and denied talking on his cell phone at the time of the accident. The trial court rendered judgment for Adams, finding his testimony to be "more credible than the entirety of the plaintiffs' case." Young and Newsome filed a motion for a new trial so they could subpoena the two witnesses from the scene. The witnesses failed to appear during the second trial, and the court once again rendered judgment in Adams's favor.

Young and Newsome appealed, arguing that the trial court's ruling was "manifestly erroneous on the evidence presented since it accepted the uncorroborated testimony of Adams and failed to give any weight to the corroborated testimony of ... the plaintiffs." The Second Circuit reviewed the manifest error standard, noting that

"A trier of fact's decision to hold the testimony of one of two or more witnesses more credible does not constitute manifest error. Where there is conflict in testimony, 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 as reasonable." Rosell v. Esco, 549 So. 2d 840 (La. 1989).

In examining the trial record, the court observed that each plaintiffs' testimony often conflicted with the other's, and that Young was unable to remember significant details when asked on the stand, such as which lane her car was traveling in. Adams's testimony, on the other hand, was consistent from one trial to the next. The court concluded, "Though we are troubled by the evidence against Adams, we still are unable to substitute our judgment over the trial court, which had the opportunity to determine credibility, while we are constrained by reading the cold transcript. We do not find that the trial court was clearly wrong." Accordingly, the court affirmed the judgment in favor of Adams.

The Young case illustrates the critical role the trial court plays in evaluating the credibility of witnesses. The resolution of this matter turned almost entirely on the parties' testimony which was in direct conflict on most points. Clearly, the "variations in demeanor and tone of voice" of the parties impacted the judge's understanding and belief in what was said. Rosell, 549 So. 2d at 840. Given that an appellate court must defer to the trial court's judgment about witness credibility except in the most extreme cases, it is essential that a plaintiff thoroughly prepare for trial in order to capitalize on the opportunity to establish credibility with the court.

Continue reading " Ouachita Parish Car Wreck Shows Trial Court's Role in Settling "He Said/She Said" Arguments " »

Ericka Lynn Carter brought a lawsuit against several parties after she was in a car accident in January, 2008: B&B Wholesale, Inc., Praetorian Speciality Insurance Company, Billy Dwayne Brumley, Ancul D. Bland, and the Louisiana Department of Transportation. She alleged that each party was liable for damages. Defendant Brumley moved for summary judgment and argued that he could not be held personally liable since his actions were taken only in his corporate capacity as president of B&B Wholesale. The trial court agreed and dismissed Brumley as a defendant and Ms. Carter appealed.

In a decision last month the Louisiana Court of Appeals agreed with the trial court and affirmed the dismissal.

The accident at issue occurred on U.S. Hwy 84 in DeSoto Parish. Michael Carter, an employee of SWEPCO, was driving his work truck north on La.Hwy. 482. When he approached the intersection at Hwy.84 Brumley, was approaching the same intersection, followed by his employee, Ancul Bland. At the intersection Michael had a stop sign and Bland and Brumley had the right of way. Michael claims he stopped but did not see the tractor trailer Bland was driving and pulled into the intersection to make a right turn and collided with the tractor trailer. Brumley witnessed the accident, but was not physically involved. The police report found that the tractor-trailer was not roadworthy and had defective brakes, steering, and headlights. They also found that Bland did not have a valid Class A Commercial Driver's License.

Ms. Carter included Brumley in the lawsuit because she claimed he was personally liable because he negligently inspected the tractor trailer and determined it was roadworthy when it wasn't, negligently instructed his employees to drive the vehicle at night, and negligently entrusted the vehicle to an unqualified driver. On appeal, Ms. Carter claimed that Brumley can be held personally liable because he was acting in the course and scope of his employment when he committed acts of negligence and should not be shielded from liability merely because he is president of B&B Wholesale, and not just an employee. In response, Brumley argued that Ms. Carter is trying to hold Brumley liable for Michael's negligent act of running a stop sign. He contended that even if he was negligent, he cannot be held liable because his actions were taken in his corporate capacity as president of B&B.

Under La.C.C. Art.2315, "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. C. C. Art. 24 defines 2 kinds of persons: natural persons and judicial persons. A judicial person is an entity to which the law attributes personality, like a corporation. It is settled law that a corporation is a distinct legal entity, separate from the individuals who comprise it. By minimizing the liability of shareholders to the corporation itself, business investment is encouraged. Because the corporate concept is beneficial to our society, limited liability should only be disregarded in extreme circumstances. Louisiana courts rarely are willing to hold a shareholder, officer, or director personally liable for corporate acts. There are some situations where a litigant can reach a shareholder personally, however. This is called "piercing the corporate veil" and is appropriate if an officer or an agent of a corporation is at fault for injuring someone else to whom he owes a personal duty. If directors and officers of a corporation do not hold themselves out as individually bound, they also are not personally liable for debts of the corporation, except for in cases of fraud, malfeasance, or criminal wrongdoing. The totality of the circumstances of each case must be viewed to determine if the corporate veil should be pierced.

Here, Brumley is a separate and distinct legal entity from B&B Wholesale. Ms. Carter had the burden to show a genuine issue of fact as to conduct that could cause personal liability on Brumley's part. There is no evidence to this effect in the record, Ms. Carter merely contends that Brumley's acts were done in his individual capacity. There is no evidence that Brumley owed Ms. Carter a personal duty or that he purported to bind himself individually for the liability of the corporation. There is also no evidence that Brumley committed fraud, malfeasance, or criminal wrongdoing. Therefore, there are no genuine issues of material fact as to Brumley's liability and the trial court was correct in granting his motion for summary judgment and dismissing him from the case.

This case provides a great example of how important it is to select the correct parties to name in a lawsuit. If you are injured by the actions of someone else who may have been acting in some corporate capacity, it is very difficult to prove that the individual should be held personally liable, and courts often only allow for collection of damages against the corporation itself. The best attorneys will understand what is required to pierce the corporate veil and be able to assess the likelihood that a court will be able to do so in your case. After all, naming more parties to a lawsuit doesn't always add up to more success. It is nothing but a waste of time and resources if parties are dismissed at the summary judgment level.

The Berniard Law Firm is look to tackle a negligent refinery by representing a Chalmette resident assaulted by chemicals released from a St. Bernard Parish oil refinery. While taking a walk through her neighborhood on the morning of September 6, 2009, the woman observed white dust covering homes and vehicles. She experienced exposure symptoms including difficulty breathing, coughing, sore throat, headache, and burning sensations in her nose and eyes. As the symptoms persisted, she went to a hospital the following day. The white powder comprised a spent catalyst including components of kaolin and titanium dioxide which are eye, skin and lung irritants. Portions of Chalmette, Arabi, and New Orleans' Lower Ninth Ward were blanketed with the fine white powder.

In addition to releasing a ton of spent catalyst, the refinery released two thousand pounds of sulfur dioxide, one thousand pounds of nitrogen oxide, and an unspecified amount of hydrogen sulfide. Not only was the refinery negligent in releasing the toxic chemicals but also for failing to notify area residents of the accident in a timely manner so that they could take precautionary measures. Moreover, children and pets are more susceptible to exposure symptoms due to their smaller size while residents with certain pre-existing medical conditions would also suffer greater harm than a healthy adult. For example, children have a greater lung surface area to body weight ratio along with other parameters that differ from adults leading to greater susceptibility to chemical inhalation effects at lower concentrations. Likewise, pre-existing medical conditions including chronic pulmonary disease and asthma increase susceptibility to exposure symptoms at lower concentrations.

Specifically, sulfur dioxide may induce acute exposure symptoms comprising irritation in the upper respiratory tract, nosebleeds and rhinorrhea (runny nose), coughing and choking, expectoration (coughing up phlegm), dysphagia (difficulty swallowing), and oropharyngeal erythema (redness). Although predominately affecting the upper respiratory tract via inhalation, sulfur dioxide also acts as an intense eye and skin irritant by combining with water producing sulfuric acid and sulfurous acid. Dermal exposure symptoms range from irritation to urticarea (itchiness) and burns. Given this high solubility, sulfur dioxide is also rapidly distributed throughout the body producing metabolic acidosis possibly inducing vomiting, diarrhea, abdominal pain, fever, headache, vertigo (dizziness), and agitation. Decontamination should include removal of contaminated clothing and rinsing of the skin and eyes. Reproductive and teratogenic effects (malformation of embryo, fetus) of exposure are unknown, which has raised concerns among women at varying stages of pregnancy at the time this accident occurred.

Hydrogen sulfide is an extremely fast acting chemical with high toxicity. Low level exposure symptoms include eye, nose, and throat irritation while moderate level exposure can lead to headache, dizziness, nausea, vomiting, coughing, and difficulty breathing. Notably, hydrogen sulfide is heavier than air resulting in accumulation in enclosed and low-lying areas. Consequently, exposure in children and pets is greater than in adults due to their shorter stature and smaller airways. Even at low levels, hydrogen sulfide inhalation may induce exposure symptoms of headache, dizziness, and upset stomach. Reproductive and teratogenic effects are unknown.

Low levels nitrogen oxide exposure symptoms include eye, nose, throat, and lung irritation as well as shortness of breath, tiredness, nausea, and lung fluid build up for one to two days. Of particular concern are reproductive animal studies revealing toxic effects on developing fetuses and alterations in genetic material. This is especially important for women who were pregnant at the time of exposure.

The involuntary chemical exposure suffered by area residents was exacerbated by the refinery's failure to notify thus depriving them of the opportunity to keep themselves and their children indoors or arrange to leave the contaminated area. None of the chemicals are as innocuous as area residents were led to believe, and no data is available to predict adverse consequences of the combined chemical exposure. For more information, please contact the Berniard Law Firm.

On Saturday, July 24, 2010, tragedy struck in East Feliciana Parish as a 9-year-old girl died in a car accident. Reports state that the young girl, Tobiya Kato, was killed when the car driven by her mother, Jamet Kato, veered off the road and flipped before coming to a rest on its roof in a wooded area. This tragic event serves as a reminder of the importance of all passengers wearing seatbelts, especially young children seated in the back of a vehicle.

According to reports, the young girl, whom was seated in the back seat, was thrown from the vehicle during the accident due to not wearing her seatbelt. Police noted that in addition to the 9-year old girl, three other children, ages 6, 5, and 2, were also in the back of the vehicle, not wearing seatbelts, when the accident occurred. However, Jamet Kato, along with a 12-year-old sitting in the front seat, were both wearing their seatbelts at the time and only suffered minor to moderate injuries in the crash.

The sheer number of deaths that could be prevented by properly buckling up in a vehicle are staggering. According to NHTSA's study, in 2008 there were 25,351 accidents involving the death of passengers in the United States. Of those, 12,865, or 50.7%, passengers were not utilizing safety restraint devices, such as a seat belt or car seat for younger children. The statistics for Louisiana residents are similarly shocking. Of the 669 passenger deaths in 2008, 59.2%, or roughly 400 passengers, died in accidents in which they were not buckled.

Accidents like this serve as a reminder for all individuals to wear seat belts when riding in a car, whether in the front or back seat. Restraint devices, such as a seat belt or car seat for younger and smaller children, serve to protect the individual in the event of an accident. Beyond this, though, is the fact that there is a very real legal duty on the part of a parent, guardian, babysitter, etc., to make sure that minors are properly restrained in a vehicle. This legal duty can lead to a significant share of liability in the event of an accident like the one mentioned above. Failing to make sure that a child is properly buckled into a vehicle can lead to both criminal and civil court consequences that could have been avoided with a couple seconds of effort.

When a parent or babysitter fails to remind children, whether in the back or front seats, to buckle in, they may be breaching a duty owed to protect their young passengers due to negligence. This means that the driver must not only remind children to buckle in, but also ensure that children are actually buckled in, before driving. The state laws around the country may vary slightly, but the consensus remains that it is the adult driver's responsibility to ensure the safety of the young passengers. In addition, criminal charges may be brought against adult drivers that endanger the welfare of young children unable to know the dangers of failing to buckle in. The importance of wearing a seatbelt is clear: whether you are a parent, relative, or babysitter, always ensure that children are buckled before leaving the driveway. The obvious physical harm from not doing so is substantial and the legal consequences afterwards are clear and considerable.

If your child is injured in an accident such as this, an attorney that specializes in these areas can help you determine any remedies that you might have.

In Pearl River on July 9, an 18-wheel truck blew out a tire and crossed over into oncoming traffic killing four people. The accident at the Louisiana/Mississippi state line occurred when the driver of the semi was driving northbound on I-59 and lost control of the vehicle after the tire blew out. The semi crossed the center median, and in what state police describe as an almost head on collision, the semi collided into a Dodge Ram pickup and led to both vehicles sliding off the road. While all four individuals in the truck were killed, the driver of the semi suffered minor to moderate injuries. The driver of the semi was from Montgomery, Texas and the four passengers in the Dodge Ram pickup were from Carriere, Mississippi. For his part in the accident, the driver of the semi was charged with careless operation and four counts of negligent homicide.

It is important to know that while negligent homicide is a criminal charge, suit may also be filed under a wrongful death cause of action for the four victims that were killed in the accident. Historically under common law, wrongful death was not available and only criminal law was an option. Under statutory law however, a person can be held responsible in civil court in addition to criminal court for wrongful death. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, "If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death."

In civil court, the basis for wrongful death is negligence. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. If a claim is brought in negligence, the driver is held to a "reasonable person" standard of care. The question to ask is, "Would a reasonable person behave this way under the same or similar circumstances?"

A finding of negligence in this matter requires an attorney to investigate whether the the accident was due to the driver's negligent operation of his vehicle, or whether the semi driver negligently maintained or inspected the vehicle. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

If the driver is not found to be negligent, the plaintiff may also have a products liability claim for the tire blowout. Under a products liability cause of action, the focus is on the supplier's liability for a product that caused physical harm to a person or to property. For products liability the same injury may be brought on several theories including intentional torts, negligence, strict liability, or liability based on breach of an express or implied warranty.

Claims may also be filed for property damage that was sustained by the vehicles involved in the accident. Property damage is recoverable in negligence. The damages that are recoverable in negligence cases are compensatory rather than punitive.

Although the parties in this accident were from Texas and Mississippi, the fact that the accident occurred in Louisiana will allow a lawsuit to be brought in Louisiana court.

Continue reading " Fatal Collision in Pearl River Illustrates Elements of Semi-Truck Negligence " »

Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no "genuine issue of material fact" to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A "genuine issue of material fact" is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is "material" when it relates to an essential element of a plaintiff's theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the "movant"). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant's negligence or a plaintiff's contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant's allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father's pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt's truck. At least one of the logs shattered the driver's side window and entered the cab of the truck, severely injuring Pruitt.

In 2008, Pruitt and her parents filed a complaint against Nale for damages, which Nale answered and asserted comparative negligence on Pruitt's part. Pruitt then filed a motion for summary judgment. A hearing on the motion was held on March 31, 2009 and the trial court rendered a judgment in favor of Pruitt, finding that Nale was 100 percent at fault for the accident. The court relied on a state law that requires drivers to ensure they can safely execute a turn before making it, which Nale clearly failed to do. The court further concluded that the evidence showed that Pruitt could not have been at fault: after the traffic light turned green, "she drove off at a normal speed, [Nale's] truck right ahead of her turned and the logs came in front of her truck for just a second or two, but long enough for contact to be made. She was not at fault if she ran into the logs." Nale appealed, arguing that the trial court erred in granting the motion for summary judgment on the issue of liability "because there were material factual disputes as to whether [Nale was] negligent and whether ... Pruitt was comparatively at fault" for following Nale's truck too closely.

The court reviewed the affidavits of the parties, several eye-witnesses, and the police officer who investigated the scene, as well as the other evidence in the record. It disagreed with Nale's allegation that Pruitt followed his truck too closely. The court noted that Nale did not dispute that Pruitt's vehicle remained entirely within its lane of travel at all times leading up to the impact, and dismissed Nale's contention that because his truck somewhat encroached into Pruitt's lane as he began to make the turn, Pruitt should have anticipated that the logs would strike her truck. Thus, the court concluded that the evidence did not create an issue of fact about whether Pruitt negligently "rear-ended the protruding logs on the truck," and affirmed the trial court's granting of summary judgment.

The Pruitt case shows how critical a thoroughly crafted record is to a successful motion for summary judgment. Even though summary judgment is more often used by defendants than plaintiffs, and even though issues of negligence and comparative fault are rarely determined by summary judgment, Pruitt was successful in her motion because the record contained enough details about the incident that Nale was unable to convincingly suggest any alternative explanations for what happened. Drafting strategic pleadings, securing effective affidavits from witnesses, and conducting thorough discovery are all essential elements of a summary judgment victory, and are all tasks that benefit from the experience of an expert trial attorney who understands the process.

Continue reading " Summary Judgment in a Car Accident: the Complexities and Value of Police Reports/Record " »

Discovery is a phase of the litigation process that occurs once a complaint has been filed and answered but before the trial occurs. The purpose of discovery is for the litigants in civil matters to exchange information that is pertinent to the case. Each party can request that the other turn over documents, answer interrogatories (written questions), agree to admissions about facts not in dispute, or submit to a deposition. The parties are required to respond to these requests within a certain period of time. There are some importantexceptions to the materials that must be exchanged through discovery (for instance, privileged information is not subject to disclosure), but the intent is to level the playing field so that the parties can adequately prepare for trial.

The failure to respond to discovery requests in a timely manner can have very negative consequences for a litigant. When a party who has been served with a proper discovery request fails to respond, the serving party can ask the court to impose penalties. These include "dismissing the action or proceeding or any part thereof, or rendering a judgment of default against the disobedient party, or [entering] an order assessing costs and attorney fees ... against the disobedient party and his attorney or both." La. C.C.P. Arts. 1471, 1473. The dismissal of a case is "a drastic penalty and should be reserved for extreme circumstances," but the party seeking to avoid sanctions or dismissal for failure to comply with a discovery order is required to show "that the failure was due to inability and not to willfulness, bad faith, or any fault." Halley v. Guerriero, 577 So.2d 781 (La. App. 2d Cir. 1991).

The case of Jones v. LSU/E.A. Conway Medical Center (No. 45-410, La. App. 2d Cir. 2010) is illustrative. Rodney Jones was an inmate at the Dixon Correctional Center ("DCC") in Jackson, Louisiana. On March 25, 2006, Jones allegedly injured his elbow and was admitted to the LSU/E.A. Conway Medical Center (the "Center") for treatment. The attending orthopedist did not find anything wrong with Jones's elbow and refused to perform arthroscopic surgery or request an MRI. In December of 2008, Jones filed a medical malpractice lawsuit against the Center which alleged that the Center's staff deliberately failed to provide him with the medical care he needed for his elbow. Jones did not hire an attorney and represented himself in the matter.

On December 8, 2008 the Center filed a motion to take Jones's deposition at the DCC at 1:00 p.m. on Thursday, December 11, 2008. The court granted the motion the same day. Jones came to the deposition and complained that he had received the notice of the deposition only the night before, and asserted that he had not been served with a court order granting the Center's motion to take his deposition. Jones ultimately refused to submit to the deposition, so the Center filed a motion to compel Jones's deposition on February 17, 2009. The court issued an order the next day requiring Jones to appear for a deposition under penalty of sanctions for his refusal "up to and including dismissal of his lawsuit." The Center sent two notices of this second deposition, which was scheduled for May 28, 2009, by letters postmarked March 16 and 17. The letters were returned unopened and marked as "refused" by Jones. The Center then filed a motion on April 16, 2009 requesting that Jones's lawsuit be dismissed for refusal to comply with the court's discovery order compelling his deposition. Following a hearing on the matter at which Jones did not appear, the court granted the Center's motion and dismissed Jones's case. Jones then filed a motion for a new trial, which the trial court denied. Jones appealed this decision.

Louisiana's courts hold that "a trial court's wide discretion in determining appropriate sanctions for failure to comply with discovery orders will not be reversed absent a clear showing of an abuse of that discretion." Magri v. Westinghouse Electric, Inc., 590 So. 2d 830, 831 (La. App. 4th Cir. 1991). Noting that refusal to comply with court-ordered discovery is a serious matter, and that trial judges must have severe sanctions available to them to deter litigants from flouting discovery orders, the Court of Appeal concluded there was nothing in the record to suggest that the trial court had abused its discretion in refusing to grant Jones a new trial:

"By refusing to accept the letters containing the notices of deposition ... Jones expressly demonstrated his refusal to comply with the court order to appear and submit to the discovery deposition. A litigant cannot be permitted to thwart the discovery process by refusing mail from the opposing attorney. This constitutes a willful disobedience or flouting of the court order."

Accordingly, the court upheld the trial court's refusal to grant Jones a new trial.

Louisiana judges have made it clear that they do not tolerate efforts by litigants aimed at circumventing the discovery process. A plaintiff in particular is at risk of having his suit dismissed at an early stage if he fails to comply with the defendant's legitimate discovery requests. This does not mean, though, that a plaintiff is required to blindly fulfill the defendant's every request -- the plaintiff can and should dispute any improper discovery requests he receives. Hence, the discovery process is most effectively navigated with the assistance of a competent litigation attorney.

Continue reading " Legal Discovery Process to be Respected, Can Lead to Medical Malpractice Case Dismissal " »

Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no "genuine issue of material fact" to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A "genuine issue of material fact" is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is "material" when it relates to an essential element of a plaintiff's theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the "movant"). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant's negligence or a plaintiff's contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant's allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father's pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt's truck. At least one of the logs shattered the driver's side window and entered the cab of the truck, severely injuring Pruitt.

In 2008, Pruitt and her parents filed a complaint against Nale for damages, which Nale answered and asserted comparative negligence on Pruitt's part. Pruitt then filed a motion for summary judgment. A hearing on the motion was held on March 31, 2009 and the trial court rendered a judgment in favor of Pruitt, finding that Nale was 100 percent at fault for the accident. The court relied on a state law that requires drivers to ensure they can safely execute a turn before making it, which Nale clearly failed to do. The court further concluded that the evidence showed that Pruitt could not have been at fault: after the traffic light turned green, "she drove off at a normal speed, [Nale's] truck right ahead of her turned and the logs came in front of her truck for just a second or two, but long enough for contact to be made. She was not at fault if she ran into the logs." Nale appealed, arguing that the trial court erred in granting the motion for summary judgment on the issue of liability "because there were material factual disputes as to whether [Nale was] negligent and whether ... Pruitt was comparatively at fault" for following Nale's truck too closely.

The court reviewed the affidavits of the parties, several eye-witnesses, and the police officer who investigated the scene, as well as the other evidence in the record. It disagreed with Nale's allegation that Pruitt followed his truck too closely. The court noted that Nale did not dispute that Pruitt's vehicle remained entirely within its lane of travel at all times leading up to the impact, and dismissed Nale's contention that because his truck somewhat encroached into Pruitt's lane as he began to make the turn, Pruitt should have anticipated that the logs would strike her truck. Thus, the court concluded that the evidence did not create an issue of fact about whether Pruitt negligently "rear-ended the protruding logs on the truck," and affirmed the trial court's granting of summary judgment.

The Pruitt case shows how critical a thoroughly crafted record is to a successful motion for summary judgment. Even though summary judgment is more often used by defendants than plaintiffs, and even though issues of negligence and comparative fault are rarely determined by summary judgment, Pruitt was successful in her motion because the record contained enough details about the incident that Nale was unable to convincingly suggest any alternative explanations for what happened. Drafting strategic pleadings, securing effective affidavits from witnesses, and conducting thorough discovery are all essential elements of a summary judgment victory, and are all tasks that benefit from the experience of an expert trial attorney who understands the process.

Continue reading " Motion for Summary Judgment Can Be Winning Strategy for Plaintiff " »

A very recent Louisiana Court of Appeals decision arises from a lawsuit filed by Lloyd and Dotris Bordelon to recover damages stemming from a pedestrian-vehicle accident that followed a vehicle-vehicle collision.

The first accident occurred in September 2003, when John Vercher and his wife were going north on Highway One in Avoyelles Parish to Mr. Bordelon's house. Mr. Desselle was also going north on the highway and was attempting to pass the Verchers, unaware that Mr. Vercher was going to turn left into Mr. Bordelon's driveway.The vehicles collided. Mr. Bordelon came out of his house to see what happened. After determining no one was hurt, Mr. Bordelon walked out to the highway to direct traffic. Mr. Bordelon reported that he heard someone asking him to move the vehicles, at which point he turned around and said they should not be moved. When Mr. Bordelon approached Mr. Vercher's car, it lurched forward and hit Mr. Bordelon, throwing him into the post of his carport and an aluminum building. Mr Bordelon sustained injuries to his brain, face, and stomach. The Bordelons filed suit against both Mr. Vercher and his insurer and Mr. Desselle and his insurer for injuries he sustained as a result of the initial crash and resulting collison. The lawsuit against Mr. Vercher was dismissed prior to trial. After trial the court found that Mr. Desselle was one hundred percent at fault for the collision between him and Mr. Vercher and that both Mr. Desselle and Mr. Vercher were fifty percent at fault for Mr. Bordelon's injuries, ordering Mr. Desselle and his insurer to pay the entire $50,000 with no reference to the assignment of fault. On the first appeal, the trial court executed a judgment allocating fault and damages equally between Mr. Desselle and Mr. Vercher. Mr. Desselle argued in this appeal that the trial court should not have found Mr. Desselle even fifty percent at fault for Mr. Bordelon's injuries.

The defendants reasoning for reversing the judgments include the separate nature of the two accidents, the time and distance between them, and the fact that Mr. Desselle owed no duty to Mr. Bordelon.

The Court of Appeals agreed with Mr. Desselle and vacated both judgments. Under La.Civ.Code art. 2315 (A), "every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it." A duty-risk analysis is applied to determine whether liability exists under this law, wherein four questions are asked:

First, did the conduct in question (here, Mr. Desselle's actions in causing the first collision) bring about the harm that occurred?

Second, did the defendants owe a duty to the plaintiff?

Third, was the duty breached?

Fourth, was the risk, and harm caused within the scope of the duty that was breached?

In this case, there is no evidence to dispute that two distinct accidents occurred--a two vehicle accident and a vehicle-pedestrian accident. If the duty risk analysis is applied to the second accident, the appropriate conclusion is that Mr. Desselle is not liable for Mr. Bordelon's injuries. The proximate and legal cause of the second accident was Mr. Vercher's operation of the vehicle. Even if Mr. Vercher was trying to move his car as instructed by Mr. Desselle, the request did not cause the accident. Even if a duty could be established on the part of Mr. Desselle, Mr. Bordelon being struck by the Vercher vehicle is not within the scope of that duty. After the first accident, Mr. Vercher's vehicle was stopped and remained stopped for a period of time until he inexplicably struck Mr. Bordelon. Even though the witness accounts conflict somewhat--all agree that Mr. Vercher came to a complete stop and that some time lapsed before Mr. Bordelon was hit.

When the trial court imputed liability to Mr. Desselle they found that he was negligent in telling Mr. Vercher to move his vehicle, knowing that Mr. Vercher was in shock immediately following the first accident. The Court found that Mr. Desselle owed a duty to innocent people in the area and breached that duty in telling Mr. Vercher to move his car. The Court of Appeals absolutely disagreed, and found that Mr. Desselle was not the legal cause of the second accident, because undisputedly, it did not occur until after the first accident was over, the vehicles had stopped, and time passed. Mr. Desselle was in the road directing traffic at the time the second accident occurred and Mr. Bordelon's injuries only resulted from the negligent actions of Mr. Vercher.

In accident injury law, damages are only recoverable if the defendants' actions are a legal cause of the injuries sustained. This requires proving the elements of negligence, the most difficult of which is typically proximate cause, or the proximity of the behavior in question to the injury. An act that is too far removed from the injury is not a legal cause. An attorney who is an expert in these types of cases will be able to know what it will takes to prove negligence in each particular situation.

Continue reading " The Complexities of Multi-Accident Lawsuits: Court of Appeals Vacates Judgment in Avoyelles Parish Case " »