Louisiana Personal Injury Lawyer Blog

When property is damaged through the fault of another, the law's primary objective is to restore the property as nearly as possible to the state it was in before it was damaged. In Louisiana, it is well settled that the measure of the damage to property is the cost of restoring the property to its former condition. Thus, the courts historically have looked to the cost of restoration to determine the proper measure of damages. Rogers v. Commercial Union Ins. Co., 796 So.2d 862 (La. App. 3d Cir. 2001). This approach is particularly common with auto accidents, including the one that led to the case of Armstrong v. Safeway Insurance Company, No. 10-183 (La. App. 3d Cir. 2010).

On April 12, 2008, Richard Armstrong, an antique automobile restorer, was driving a 1982 Corvette in Pineville. The car, which to that point had never been in an accident and was in "mint" condition, was struck by a vehicle driven by Darrell Frost. Armstrong suffered minor injuries as a result of the accident, and the Corvette sustained damage to the front end. Armstrong and Frost's insurance carrier, Safeway, settled Armstrong's personal injury claims after Frost admitted fault for the incident. The parties were unable to reach a settlement over Armstrong's property damage claims, however, and so Armstrong filed suit. At trial, Armstrong explained that the repairs to the Corvette totaled $7,007. This was in part due to the fact that Armstrong insisted upon complete replacement of several body parts due to the difficulty in making undetectable repairs to fiberglass. Armstrong asserted that the Corvette was a "well-maintained classic," the value of which would have been negatively affected by any body imperfections. Safeway, who had offered Armstrong $3,503 for the repairs based on the opinion of its appraiser, argued that it was unreasonable for Armstrong to expect replacement parts when less costly repairs were possible. The trial judge disagreed with Safeway and awarded Armstrong $7,007 in property damages.

Safeway appealed. The Third Circuit noted that the parties' repair experts at trial both agreed that Armstrong's vehicle could have been repaired in several different ways and that Armstrong was reasonable in being concerned about the way that his vehicle was going to be repaired. The court concluded that "[b]ecause the trial court was presented with two permissible views of the evidence, its choice between them cannot be manifestly erroneous or clearly wrong." Furthermore, Armstrong "carried his burden" of proving the amount he paid to restore the car to its pre-accident condition. The court commented, "Safeway simply argued that Armstrong's vehicle could have been repaired in the manner recommended by its appraiser; they did not argue that any of the costs incurred by Armstrong to have his vehicle repaired in the manner that he chose were otherwise unreasonable." Accordingly, the court found that the trial judge did not err in awarding Armstrong the full amount of his proven property damages, and affirmed the decision.

This case offers a reminder to car wreck victims that they are entitled to have their cars repaired to pre-accident condition and that they do not have to accept an insurance company's first settlement offer based simply on what the insurance company asserts is sufficient. Although Armstrong's situation was somewhat unique in that he was driving an antique Corvette, the concept that the victim should be made whole applies in every car wreck case.

Continue reading " Pineville Car Wreck Results in Showdown Over Classic Car Repair Costs " »

In June, The Louisiana Court of Appeals published their opinion for Watts V. Scottsdale Ins. Co., a case involving a trip-and-fall that occurred at a restaurant in Minden, Louisiana. In the decision, the court articulated the plaintiff's standard for prevailing in trip-and-fall cases that occur within the state.

The facts of the case are simple enough. In this case, 82 year old plaintiff Mildred Watts tripped over a metal strip located in the path between a restaurant parking lot and front entrance. Ms. Watts contended the metal strip, due to its dark coloration, was shaded by the shrubbery around it and therefore she couldn't see it before her resulting fall. As a consequence of her trip-and-fall, Ms. Watts sustained serious injuries to her mouth and teeth. Accordingly, Watts sued the restaurant and its liability insurance carrier on a theory of negligence.

Before ruling on the matter, the court explained that trip-and-fall negligence cases brought against merchants in Louisiana are governed by La. R.S. 9:2800.6. This statute requires a plaintiff to prove, among other elements of her claim, that (1) a condition present on the defendant's property presented an unreasonable risk of harm and that the harm was reasonably foreseeable; (2) the defendant created the condition, or had actual or constructive notice of the condition prior to the plaintiff's trip-and-fall; and (3) the defendant failed to excercise reasonable care. In order to win her case, the court explained that Ms. Watts must prove all three of the La. R.S. 9:3800.6 elements by a preponderance of evidence.

The court first looked to the question of Element (1), whether the metal strip presented an unreasonable risk of harm. While there is no firm rule for determining whether a condition is unreasonably harmful or not, the court made clear that if a condition's social utility outweighs its alleged harm, it often cannot be "unreasonably dangerous." Furthermore, if a condition's risk of harm is so obvious to the plaintiff that she can avoid it, the condition likely does not present an unreasonable risk of harm. In light of the presented facts, the court concluded the metal strip that caused the fall was not unreasonably dangerous. The court reasoned that because the metal strip was used to hedge a flower bed near the restaurant and was considerably separated from the pedestrian entranceway, it had a reasonable, useful, and non-dangerous function. The metal strip's utility outweighed its harm to patrons. Moreover, the court was not swayed by Ms. Watt's allegation that she could not see the strip. Instead, the court stated that because the strip was elevated several inches above the surface of the ground, it should have been obvious to Ms. Watts when she was walking near it before the fall. Indeed, Ms. Watts testified she had seen the metal strip in her prior visits to the restaurant.

In reviewing the question of Element (2), the court next looked at whether the restaurant had any notice of the strip's alleged propensity to cause trips, falls, or other similar harms. Testimony revealed that the restaurant owner was never made aware of any prior accidents involving the metal strip in the nine years he owned the restaurant, and he therefore did not have actual notice of the metal strip's dangerous condition. Secondly, the strip was visibly separated from the regular pathway to the restaurant, and the restaurant thereby had no constructive notice of of any harm because it was not foreseeable to restaurant ownership that patrons would walk on the metal strip, as opposed to the regular pathway. Finally, because the ownership did not encourage patrons to walk in the flower bed by creating stepping stones or other alternate pathways near the metal strip, the restaurant did not create the dangerous condition. Accordingly, the court ruled the restaurant neither created the alleged dangerous condition, nor had any constructive or actual notice of harm associated with the metal strip.

Lastly, the court quickly dispensed with Element (3), whether the restaurant used reasonable care. The court determined the restaurant did use reasonable care because it kept the metal strip out of the restaurant entrance pathway and otherwise kept it in normal condition.

Because Ms. Watts could not prove all three elements of La. R.S. 9:2800:6, the Louisiana Court of Appeals concluded that Ms. Watts could not recover for her injuries sustained in the trip-and-fall at the Minden restaurant.

As the Watts case shows, plaintiffs have a weighty burden when attempting to recover for injuries suffered as the result of a trip-and-fall on business property. Nevertheless, recovery for a trip-and-and fall is not impossible. Indeed, many of the required elements of La. R.S. 9:2800:6 are not clear cut and may actually play out differently than Watts did.

Plaintiffs can take proactive action to ensure the viability of their own trip-and-fall case. First, plaintiffs should always use designated pathways when possible while on merchant property. Second, plaintiffs should use reasonable care to be aware of and avoid obviously dangerous conditions, such as large holes in concrete sidewalks or the like. Third, in the unfortunate event a trip and fall does occur, plaintiffs should immediately report the fall to the merchant management regardless of injury severity. Finally, and most importantly, before talking further with the merchant or the merchant's insurance carrier about potential settlement of the trip-and-fall claim, the plaintiff should always consult and retain an experienced attorney. The attorney can examine the factual circumstances of the trip-and-fall and properly frame the facts for negotiation and possible litigation with the merchant.

If you have recently experienced injuries suffered from a trip-and-fall, please do not hesitate to contact Berniard Law Firm. Our firm's experienced attorneys will guide you through the trip-and-fall legal process and will be sure to maximize your rights throughout the process.

West Monroe, a city of some fifteen thousand people, has seen an increase in the number of collisions between trains and cars over the last two years. One person has been killed and four injured in such accidents, three of which occurred in 2010 and two of which occurred at the Plum Street railroad crossing.

The City of West Monroe, the Department of Transportation and Development (DODT), and the Kansas City Southern Railroad Company are responsible for maintaining these railroad crossings. As a result of the increase in accidents, they have collectively decided to close two railroad crossings, at South Second and Plum Street. Although they initially planned to close the Trenton Street Underpass, the city decided to keep it open due to the inconvenience to traffic.

In addition to closing two intersections, the city and railroad company plan to upgrade all other railroad crossings within city limits. These upgrades will consist of adding new warning devices and cutting back any vegetation that might obscure drivers' views. They might also involve lowering the speed of passing trains and increasing the trains' use of their horns.

Municipalities and railroad companies have a duty to maintain safe railroad crossings based on the Federal Railroad Safety Act and supplementary state legislation. This duty applies equally to both the municipalities and railroad companies; a railroad intersection is as much a street as it is a railroad. As such, victims of accidents at railroad crossings may collect damages from both the municipality and the railroad company, the two of whom may sort things out between themselves after paying for the harm to the victim.

The importance of this duty, relative to the other duties which fall on municipalities and railroad companies, becomes readily apparent with a brief look at statistics. There are over two hundred thousand railroad crossings in this country, which cause over twelve thousand car accidents each year. Of these twelve thousand car accidents, more than fifteen hundred involve fatalities and more than seven thousand involve serious injuries.

Despite the dangers of railroad crossings, there is no hard and fast definition of what is and what is not a safe railroad crossing. Rather, the safety of a crossing, or the negligence of a municipality or railroad company, is determined by the circumstances of the particular crossing. For instance, no single train speed limit is per se negligent, unless an ordinance or statute makes it so. However, any such speed may be negligent if, under the circumstances, reasonable prudence calls for a slower speed. The same is true of vegetation obscuring the view of the tracks, the amount of traffic crossing the tracks, and the existence of warning signals. An area which is lightly traveled, by cars or by trains, requires fewer warning signals and allows more vegetation and train speed than an area which is heavily traveled.

A spike in the number of accidents, as has occurred in West Monroe, may be evidence that the railroad crossings have become unsafe because the circumstances under which they are used has changed. If West Monroe or the Kansas City Southern Railroad Company failed to remove vegetation over the last few years, resulting in an increasingly obscured view of oncoming trains, they may have turned an otherwise safe crossing into a liability. Likewise, if the city or railroad company failed to adjust train speed or failed to place more warning signs in response to an increase in traffic, they may have allowed a potentially safe crossing to become a liability.

The decision to upgrade the crossing does not, in itself, increase the municipality's or the railroad company's potential liability. Neither would deciding to upgrade an intersection and then failing to do so. This is because selecting a crossing for upgrade does not make drivers think that the particular crossing is safer than they otherwise would. Because plans to upgrade a railroad crossing do not create a perception of safety, they do not cause more drivers to use the crossing than otherwise would. As such, planned upgrades are not the proximate cause of accidents.

The City of West Monroe, DODT, and Kansas City Southern Railroad Company are liable for the state of their railroad intersections not because they have decided to upgrade them, but because they must upgrade them so urgently. Cities and railroad companies across Louisiana which maintain hazardous railroad crossings should learn from West Monroe. Public safety demands that they upgrade their facilities without the prompting of a spike in fatalities or a wrongful death lawsuit.

In Louisiana, a tort suit must be filed within a certain period of time after the incident occurs. This is called the "prescriptive period," and serves several purposes. It puts the defendant on notice within a reasonable period of time that a plaintiff has a possible claim against him and thereby allows him to preserve evidence that may be required for trial. It also supports the state's efforts to resolve legal disputes in a timely manner. The prescriptive period for a specific tort is set by statute. For product liability cases, the Louisiana Products Liability Act "establishes the exclusive theories of liability for manufacturers for damage caused by their products" and creates a one-year prescriptive period for claims that "commences to run from the day injury or damage is sustained." See LA. CIV. CODE Art. 3492.

Filing a lawsuit even one day past the expiration of the prescriptive period can prove fatal to a plaintiff's effort. For example, Carter v. Matrixx Initiatives, Inc., No. 09-31134 (5th Cir. 2010) involved a plaintiff who filed her lawsuit just six days too late and was barred from recovering. On February 23, 2007, Ruth Carter of Livingston Parish used Zicam No Drip Liquid Nasal Gel Cold Remedy and immediately experienced excruciating burning pain in her nose. By the next day, she lost her sense of smell and sense of taste. The pain was so severe that Carter was unable to work and told her employer that she believed the Zicam had caused the burn when she called in sick. Carter sought medical treatment from her primary care physician who did not confirm the cause of her injury but referred her to a radiography center for further examination. During the imaging appointment on May 7, 2007, Carter told the technician about her suspicions about the Zicam. The technician responded that she had received an e-mail communication warning "to be on the lookout for [the same kind of] problem with Zicam." Carter filed suit against Matrixx Initiatives, Inc, the maker of Zicam, on February 29, 2008 in Louisiana state court. The case was removed to federal court where the Louisiana Products Liability Act was to be applied by the court. Matrixx then filed a motion for summary judgment seeking a dismissal, arguing that because Carter's suit was filed six days after the expiration of Louisiana's one-year prescriptive period for product liability suits, Carter's action should be barred. The district court granted Matrixx's motion on this ground, and Carter appealed.

In her appeal, Carter argued that the doctrine of contra non valentem should apply. Under this doctrine, the running of the prescriptive period is suspended "until the facts necessary to state a cause of action are known or reasonably knowable to the plaintiff." The idea is that the plaintiff is not penalized for failing to act until she has "actual or constructive notice of the [tort], the resulting injury, and the causal connection between the two or that the plaintiff's lack of such knowledge was willful, negligent or unreasonable." See Sharkey v. Sterling Drug, Inc., 600 So. 2d 7013 (La. App. 1st Cir. 1992). In effect, Carter's position was that not until her conversation with the radiography technician on May 7, 2007 did she become aware that the Zicam caused her injury and, accordingly, the prescriptive period should not have begun running until that date. The Fifth Circuit rejected this argument. The court found that it was "apparent that Carter first sustained the injury that allegedly resulted from her use of Zicam on February 23, 2007 and that she had actual knowledge of pain and sensory loss on that same day." The court noted that "from the very outset, Carter suspected and attributed her injury to Zicam, and she never wavered in that belief." In the court's view, Carter "indisputably" had both the belief that Zicam caused her injury and a reasonable basis for seeking to hold its manufacturer responsible "on February 24 at the latest." Therefore, the prescriptive period "began running on February 23 (February 24 at the latest)," and so Carter's filing of her lawsuit "was at least five days late." The court affirmed the lower court's dismissal of Carter's claims.

The Carter case is a stark example of how strictly courts enforce the prescriptive periods established by the legislature. If you have been injured by a defective or dangerous product, it is critical to seek legal help immediately so you do not lose your opportunity to file a suit and obtain the recovery you deserve. An experienced trial lawyer will determine the prescriptive period that applies to your case and help you file an action before the window closes permanently.

Continue reading " Louisiana Products Liability Act Requires Swift Action by Plaintiffs " »

The legal concept of a statute of limitations is a fixed period of time within which a lawsuit must be commenced. Under Louisiana law, the statute of limitations for a personal injury action is one year. Thus, the injured victim must commence a lawsuit within one year from the date of injury. Once the one year period runs out, the opposing party could raises it as a defense to dismiss the case unless a legal exception applies.

Typically in a personal injury case involving joint tortfeasors, filing suit against one alleged tortfeasor is a way to interrupt the statute of limitation against all other joint tortfeasors. However, per the ruling in Galling, "where no liability is found on the part
of a timely sued alleged tortfeasor, then prescription is not interrupted as to untimely sued torfeasors, as no joint or solidary obligation exists." Moreover, according
to the Federal Rule of Civil Procedure 15(c), an amendment to a complaint could relate back to the date the original complaint was filed. However, Rule 15(c) allows "an amendment changing the name of a party to relate back to the original complaint
only if the change is the result of an error, such as a misnomer or misidentification."

The case of Miller v. Mancuso is illustrative. On August 6, 2007, two unknown deputies unlawfully arrested Lawrence Miller and used excessive force. Miller filed suit on August 5, 2008, naming Sheriff Mancuso, "two unknown deputies," and "XYZ Insurance Company" as defendants. On March 10, 2009, Miller amended his complaint to identify Deputies Cloud and Aymond and St. Paul Fire & Marine Insurance Company. The district court dismissed the claim aginst Sheriff Mancuso, Miller does not appeal. Then,
the remaining three defendants moved to dismiss, alleging that Miller filed untimely claims against them. The district court granted the motion to dismiss. Miller appealed, asserting that his complaint against the deputies were timely because his March 10, 2009 amendment to his complaint should relate back to his initial pleading on August 5, 2008.

First, the court stated that the dismissal of Sheriff Mancuso eliminated his status for interruption of prescription against the deputies. Then, the court observed that Miller knew the identities of the "two unknown deputies" long before he filed his initial complaint. Miller testified that he knew Deputy Aymond's name a couple of days after the incident and learned Deputy Cloud's name on the night of the incident. Moreover, Miller's wife also listed Deputies Cloud and Aymond on a complaint document on August 13,2007. The court concluded, "there was no mistake about their identities and no reason to either interrupt prescription under Louisiana law or allow the March 10, 2009, amendment to relate back to the original complaint." Accordingly, the court affirmed the decision to dismiss the case.

The Miller case provides a good example of how important it is to name the right party in a fixed time. If you are in a case like this, an attorney with our firm that specializes in these area can help you determine which party you should name in the case.

On May 22, 2006, Patricia Case was driving on Oday Road following a tractor driven by Barry Frederick, an employee of Burt Oubre of Burt Oubre Farms. She then decided to pass the tractor at the same time that Barry Frederick was turning left across Mrs. Case's path. The two vehicles collided.

Following the collision, Mrs. Case "experienced back pain radiating into her legs." Utimately, Mrs. Case received lumbar microdiskoctomy and laminectomy from Dr. Louis Blanda in 2007. Dr. Blanda testified that Mrs. Case would have some permanent restrictions on her activity level. For example, Mrs. Case was determined to not be able to participate in lifting involving objects over 50 pounds. Dr. Blanda also testified that the surgery was a minimally invasive procedure; in his opinion, Mrs. Case should be
able to return to work within limitations.

The Cases sued Frederick, Oubre, and Shelter Insurance Company for the injuries they sustained in the crash. Mrs. Case was awarded $49,998.00 in general damages. She then appealed the award, arguing that the trial court's ruling was "manifestly erred in awarding $49,998. in general damages."

The Third Circuit identified that the fixing of general damages by a jury is discretionary. Then the Third Circuit reviewed the abuse of discretion standard for general damages, noting

"Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion."

In examing the trial record, the court observed that Mrs. Case suffered a herniated lumbar disc caused by the accident. Because she continues to suffer periodic back pain, the surgery that she received was invasive. Since, per the case of Este v. State Farm, the aggravation of a pre-existing, asymptomatic, spondylosis and bulging disk can be awarded a minimum of $75,000.00 in general damages, the court concluded that "an active herniation fo a disk with surgical intervention warrants a general damage award of $100,00.00;any amount below that would be considered an abuse of the jury's vast discretion." Accordingly, the court amended the general damage award to $100,000.00 in favor of Mrs.Case.

This case shows how heavily the appellate court relies on previous cases to test whether the award is an abuse of discretion. Clearly, while the plaintiff suffered more but was awarded less compared to the previous ruling, this is a clear abuse of discretion.

By hiring a highly skilled attorney you can be assured that extensive legal knowledge and skill will be utilized to make sure that relevant precedent is utilized in your favor. A solid attorney will understand what is required to amend the damage award in the client's favor and will be able to assess the likelihood that a court will be able to do so as well. The Berniard Law Firm has had extensive success using the law to earn our clients the judgments they deserve and will be happy to educate callers on their legal rights regarding any matter of law they might be looking for more information on.

The Environmental Protection Agency can attempt to phase out chemicals which are "unsafe" under the Toxic Substances Control Act (abbreviated TSCA and pronounced "ToSCA"). TSCA is a complete failure of a statute and hardly regulates anything. Unlike its counterpart in the European Union, TSCA does not require every chemical manufacturer to report on its chemicals before being granted market access. Rather, TSCA blacklists a handful of chemicals and companies have to report anything that is chemically similar. If a company makes something that is tremendously dangerous but not chemically similar to something already on a TSCA blacklist, TSCA does not apply.

TSCA may be supplemented soon with Senator Lautenberg's Safe Chemicals Act. Doing so would no doubt be a great victory for environmentalists as it would replace TSCA with something which might actually work. The Safe Chemicals Act is taking aim at a number of problems that TSCA has been unable to address, foremost above them, asbesdos. The question, however, of what is and is not reasonably "safe" remains.

Historically asbestos was considered to be useful material in its day. Its strength makes it a great cement additive; what's more, its resistance to heat makes it excellent for brake pads, building insulation, and flame retardant.

Unfortunately, asbestos is obviously very hazardous. As scientists and doctors have come to profess, asbestos causes the dangerous illness mesothelioma. Mesothelioma is a rare form of cancer that anyone who watches television knows about. What's more, mesothelioma has led to enough pain and suffering that awareness is essential.

The scary thing about mesothelioma, and asbestos, is that it is amounts to a death sentence. Forty percent of people who contract this ailment die within a year. Ninety percent of people who contract this sickness within four years. Besides its high fatality rate, the popular fear of asbestos gains strength from the chemical's insidiousness. Up to fifty years could pass between coming in contact with asbestos and developing mesothelioma.

Despite the ubiquity of mesothelioma class action lawsuit ads, the actual disease is fairly rare and the average American has a very low risk of contracting it. In most industrialized Western nations - that is, places where asbestos was, or is, manufactured and used - between seven and forty people per million contract mesothelioma each year. Mesothelioma is practically nonexistent in countries without asbestos.

To really assess the danger of asbestos, one has to distinguish risk from hazard. "Risk" is the chance that something will go wrong. "Hazard" is a measure of the severity what happens if something does go wrong. The hazard for asbestos is very high. The hazard is mesothelioma and death within a few years. The risk is very low. Between seven and forty in one million is almost as low as the proverbial "one in a million."

Tobacco, by comparison, is far more risky than asbestos. Male smokers have about a seventeen percent lifetime risk of developing lung cancer. For women, the risk is about twelve percent. Tobacco is roughly as hazardous as asbestos. Lung cancer's overall five year survival rate is about fourteen percent.

It is difficult to think of a hard and fast rule for distinguishing between safe and unsafe chemicals, but that is precisely what the EPA will likely be doing after the passage of the Safe Chemicals Act. American manufacturing could be on the brink of a very big change. It could be a victory for the environmental movement, but a victory with very unknown consequences and a huge development in law.

If you are facing an issue that that is similar to the one discussed, an attorney can help you with the legal issues surrounding it. Contact our offices today for a free legal consultation on your rights.

Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court

On the afternoon of June 20, 2005, Jesse Brooks, an operating engineer who worked for Industrial Plant Maintenance in St. Gabriel, was driving a backhoe along the shoulder of La. Highway 30. Brooks was followed by his coworker, Steve Harris, in another vehicle. As Brooks approached a driveway that connected with the highway, the backhoe hit a depression and rolled over on its right side. Harris immediately approached the backhoe, where he found Brooks unconscious in the cab. Brooks died shortly thereafter. Brooks's widow, Lola, filed a wrongful death action against the State of Louisiana through the Department of Transportation and Development (DOTD). At trial, the jury found the DOTD negligent in maintaining the shoulder of the highway, returned a verdict for Mrs. Brooks, and awarded her approximately $812,000 in damages.

The DOTD appealed, alleging several errors on the trial court's part. Among them was an improper jury instruction. Under Louisiana law, the trial judge is required to instruct jurors on the law applicable to the issues submitted to them to decide. La. C.C.P. Art. 1792(B). The jury charge "must correctly state the law and be based on evidence adduced at trial... Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues." LeBlanc v. Landry, 21 So.3d 353, 358-359 (La. App. 1st Cir. 2009). If the trial judge "omits an applicable, essential legal principle, [the] instruction does not adequately set forth the law applicable to the issues to be decided by the jury and may constitute reversible error" which is remedied by a de novo review of the jury's findings by the appellate court. Leblanc, 21 So.3d at 358-359; see also Picou v. Ferrara, 483 So.2d 915 (La. 1986).

In its appeal, the DOTD argued that the trial judge incorrectly instructed the jury on the DOTD's duty to maintain and repair its roadways and shoulders and by citing La. R.S. 32:299(A)(2), a statute that permits the operation of farm vehicles on shoulders of public roads. The court agreed that this charge was erroneous, noting that no evidence presented during the trial established that the backhoe was being used as farm equipment. Instead, the court reasoned, the trial judge should have instructed the jury on two other statutes which provide that "a vehicle shall be driven upon the right half of the roadway," and that "a vehicle shall be driven as nearly as practicable entirely within a single lane." La. R.S. 32:71; La. R.S. 32:79. Since the jury was instructed on the wrong law, the court believed the inaccurate instructions misled the jury in evaluating Brooks's own conduct leading up to the incident. The court found the instructions contained a "plain and fundamental error" that "probably contributed to the jury's finding that Mr. Brooks was not negligent in the operation of the backhoe."

Having reached this conclusion, the court conducted a de novo review of the issue of whether Brooks's conduct amounted to contributory negligence. Because he "violated Louisiana law by traveling on the shoulder rather than within the travel lane of the roadway," the court determined that Brooks's conduct was negligent and assessed him 20 percent of the fault in the accident. The court amended the trial court's judgment and reduced Mrs. Brooks's damages award to approximately $650,000.

This case illustrates the critical importance of jury instructions. While in most cases an appellate court is entitled to disturb a trial court's findings only in the case of the trial court's abuse of discretion, a faulty jury charge like the one in the Brooks case can authorize the appellate court to review the evidence and decide the matter as if for the very first time. Although a trial judge is under no obligation to give any specific jury instructions favored by either party (see Leblanc, 21 So.3d at 358), an effective strategy for a plaintiff is to submit to the court suggested instructions as a way of guiding the judge's proper selection of charges. Taking a proactive approach with jury instructions is one way that an experienced trial attorney can help a plaintiff recover the damages he or she deserves--and ensure that the award stands fast on appeal.

Continue reading " Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court " »

In a tort action for a car wreck, the court is authorized to award a successful plaintiff two types of damages. Special damages are intended to reimburse a plaintiff for the quantifiable costs and expenses he incurred as a result of his injuries. Medical expenses and car repair costs fall into this category. To recover special damages, the plaintiff is required to show the amounts he paid and show that they were the consequence of the accident. General damages, on the other hand,

"involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured exactly in monetary terms." Robbins v. State ex rel. Dept. of Labor, 728 So. 2d 991 (La. App. 2d Cir. 1999).

Naturally, arriving at an amount for general damages is far less precise, and so Louisiana law leaves "much discretion ... to the judge or jury" in setting the award amount. La. C.C.Art. 2324.1. In fact, in order for an appellate court to modify a general damages award, the trial record "must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and individual circumstances peculiar to the case under consideration." Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La. 1993).

An appellate court's deference to a trial court's judgment on the amount of general damages was aptly shown in the case of Pittard v. Lewis, No. 45-412CA (La. App. 2d Cir. 2010). On March 15, 2007, Robert Pittard was driving his mother's car on Interstate 220 in Bossier City. As he took the off-ramp to La. Highway 80, a car driven by Jonathan Lewis collided with Pittard's vehicle. Pittard was transported to the Willis-Knighton Bossier Health Center where he received treatment for a concussion and a severe facial laceration. At the trial, Pittard put on evidence that, after the accident, he began experiencing back and neck pain. He visited the Spine Institute of Louisiana where he was diagnosed with a lumbar and cervical strain and underwent physical therapy. Pittard's pain continued throughout the fall of 2007, at which time he enrolled at the University of Mississippi. He testified that he continued having problems with his middle and lower back, especially after long drives and while playing sports. The following summer, Pittard returned to the Spine Institute where he was diagnosed with mid back pain, thoracic facet dysfunction, upper lumbar pain, and mild L5-S1 spondylosis. Further physical therapy was recommended.

Lewis did not dispute his liability for the accident, so the only issue before the trial court was the quantum--or amount--of Pittard's claim. At the close of the trial, the judge issued a written ruling that awarded Pittard $7,818.75 in special damages and $18,000 in general damages. In the order, the judge explained that he was "convinced that the back problems presently experienced by Pittard were directly caused by the automobile accident." Lewis filed an appeal asserting that the general damages award was excessive.

The Second Circuit, in observing that an abuse of discretion would be required to overturn the trial court's decision on damages, noted that a "finding of an abuse of discretion must be based on the particular injuries sustained and their effect on the particular injured person." Montgomery v. Kedgy, 21 So. 3d 980 (La. App. 2d Cir. 2009). Accordingly, the court reviewed the record and focused on such evidence as Pittard's testimony that he had been actively playing tennis and soccer since high school but that he had not experienced any of his current back pain prior to the accident. The court noted that Pittard explained that his back problems had gotten progressively worse after his initial release from the Spine Center. Additionally, the court considered the testimony of Pittard's doctor, who offered the opinion that the accident was a contributing factor to Pittard's continuing pain. The court concluded that "based upon the testimony and medical evidence contained in the record and considering the particular injuries sustained by Pittard and their effect on his physical condition and lifestyle, we cannot say the trial court's award of $18,000 in general damages is beyond the amount reasonably within the fact-finder's vast discretion," and affirmed the trial court's award.

The lesson of the Pittard case is that the plaintiff's time to make a claim for general damages is during the trial. Had Pittard not substantiated his non-monetary damages during the trial with testimony and medical evidence, leading the trial court to award him the$18,000, he would not have been able to look to the Court of Appeal for a remedy. Likewise, as we saw here, a damages award by the trial court is extremely difficult to reduce or reverse on appeal, so it is essential that the plaintiff capitalize on the opportunity to present all evidence available on damages at trial.

Continue reading " Bossier Parish Car Accident Explores the Court's Role in Setting General Damage Awards " »

Louisiana Court Stresses Importance of Constructive Notice in Trip-And-Fall Cases

In Smithwick v. City of Farmerville, the Second Circuit Louisiana Court of Appeals affirmed a trial court's dismissal of a plaintiff's trip-and-fall case for failure to prove that the municipal defendant had actual or constructive notice of a shallow depression in the city-maintained right-of-way.

The plaintiff, Carol Smithwick, was waiting at a street corner in Farmerville, Louisiana for her child's school bus to arrive. Smithwick was traversing a sidewalk, and as she stepped off the sidewalk and onto the street, she tripped on a depression in the street's shoulder. The depression was shrouded by grasses growing around it, and the depression was not immediately visible to Ms. Smithwick at the time. Accordingly, she tripped, fell, and sustained immediate injuries that later caused reflex sympathetic dystrophy.

Under Louisiana Civil Code, Article 2317, a municipal defendant cannot be held liable for damages caused by dangerous conditions unless the municipal defendant had either actual or constructive notice of the condition, and had a reasonable opportunity after receiving such notice to remedy the condition and then failed to do so. Consequently, Article 2317 required the Louisiana Appeals Court to examine whether the City of Farmerville had actual or constructive notice of the shallow depression that caused Ms. Smithwick's fall.

The court explained that actual notice is "knowledge of dangerous defects or conditions" by an employee or officer of the municipality that has a duty to keep the property involved in good repair or to report defects and dangerous conditions to authorities. An example of actual notice would have been a city road supervisor inspecting the road and noticing the depression before the fall. This is because a supervisor would have a preexisting duty to report the condition to the proper authorities, and because a supervisor is often acting as an agent of the city itself (as opposed to a mere employee). However, because no such discovery was previously made by any such muncipal actor, the court ruled that the City of Farmerville did not have actual notice of the depression.

The court next went on to explain the concept of constructive notice. Referring to La. R.S. 9:2800, the court stated that constructive notice is "the existence of facts which imply actual knowledge." In other words, circumstances involving pedestrians' behavior in the area of the depression or circumstances stemming from physical conditions around the depression could lead to constructive notice. The concept of constructive notice is a more complicated notion than that of actual notice.

In determining whether the City of Farmerville had constructive notice, the court noted that throughout the school year, 35 people regularly gathered in the area of the depression twice a day to wait for their own school children. Of that mass of people, none had ever reported to the City of Farmerville the existence of the depression. Furthermore, the court acknowledged that the City of Farmerville regularly mowed and trimmed the area around the depression and no city maintenance employee had ever previously noticed the shallow depression. As such, the state appellate court ruled that the City of Farmerville did not have constructive notice of the shallow depression either.

Because Ms. Smithwick could not show that the City of Farmerville had either actual or constructive notice of the depression, the court affirmed the lower court's decision that she should not recover.

The first lesson of Smithwick is a blunt one: In trip-and-fall cases, if the defendant has not received prior notice of the dangerous condition that caused the fall, Louisiana courts will not hold the defendant responsible for the plaintiff's corresponding injuries. Defendants have no duty to remedy dangerous conditions they do not have prior reasonable notice of. The second lesson of Smithwick is a more subtle one: The issue of constructive notice can often be a "dealbreaker" in the success or failure of a plaintiff's trip-and-fall claim. Constructive notice is a murky concept that is not always immediately apparent soon after the injury occurs.

Because constructive notice is both an important and little-understood concept, it is imperative that plaintiffs who have recently experienced a trip-and-fall contact an experienced attorney. An attorney is vital in requesting and examining documents that may or may not indicate existing constructive notice. By knowing which questions to ask of the defendant, an experienced attorney can accurately pinpoint whether the defendant had prior notice of the dangerous condition that caused the fall.

Continue reading " Case Demonstrates Slip/Trip and Fall Accidents Can Be Complicated, Require Skilled Attorney " »

When hurt, many people begin stressing over who to hire to represent their interests. There are thousands of lawyers offering their services and one case, in particular, is a helpful guide to understanding how important picking the right one is. In Horton v. Beck Partners, L.L.C., the claims of a psychiatric patient, Denise Horton, were dismissed because she did not first submit her claims to a medical review panel. In fact, Horton did not characterize her claims as medical malpractice and thereby appealed the decision. Rather. Horton sued for general negligence which is a cause of action under general tort law.

However, the court determined the case did fall under the scope of the Louisiana Medical Malpractice Act which allowed the defendant physician to invoke an 'exception of prematurity.' This 'exception of prematurity' is a procedural mechanism utilized by health care providers in the event medical malpractice claims are not first presented to a medical review panel. To elaborate, if a health care provider is sued and action has commenced in a court of law, an exception of prematurity will be maintained and the lawsuit dismissed when the plaintiff fails to first present the claims to a medical review panel.

This outcome is dictated by the Louisiana Medical Malpractice Act which "requires that all claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." Consequently, in Horton v. Beck Partners, L.L.C., both the trial court and the court of appeals maintained the physician's exception of prematurity and dismissed the plaintiff's (Horton) claims.

The Louisiana Medical Malpractice Act ß 40:1299.41 provides useful definitions. For example, 'malpractice' is defined in (A)(8) as "any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient." Further, 'health care' is defined in (A)(9) as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components."

The Supreme Court provided a six part test comprising six Coleman factors for determining whether negligent acts of a health care provider fall under the Louisiana Medical Malpractice Act: (1) whether the issue related to treatment or dereliction of professional skill, (2) whether expert medical evidence is necessary for determining if the standard of care was breached, (3) whether the pertinent act or omission involves assessment of the patient's condition, (4) whether the incident occurred within the context of a physician-patient relationship or within the scope of activities a hospital is licensed to perform, (5) whether the injury would have occurred if the patient had not sought treatment, and (6) whether the alleged tort was intentional. Coleman v. Deno, 813 So. 2d 303 at 315-316 Utilizing these Coleman factors, the court determined that the physician's conduct fell under the jurisdiction of the Louisiana Medical Malpractice Act rather than general tort law.

The importance of this case to the general public is simple: by not hiring a competent, well versed attorney, you may end up having your case thrown out and not receiving the compensation you deserve. An attorney with extensive experience in personal injury law may, literally, be the difference between financial compensation and nothing. Contact our offices today for more information on your legal rights if you have been injured by your doctor's improper actions.

A recent Louisiana Court of Appeals decisionshows that the question of which type of claim to file after an injury, general tort or medical malpractice, can make or break a case against a health care provider.

In February 2008, Helen Williams was a patient receiving oxygen at Pointe Coupee General Hospital ("PCGH") in New Roads, Louisiana. Early one morning nurses noticed smoke coming out of a piece of radiology equipment and the fire department was called. By the time the fire department got there, the hospital sprinkler system had already put out the fire which had been confined to the radiology department. However, the decision was made to move patients to the east side of the hospital, behind fire doors. Physicians discussed which patients could be discharged or moved to a local nursing home. They chose to move Ms. Williams to Lakeview Nursing Home in New Roads. She died later that day.

Ms. Williams children and grandchildren ("plaintiffs") filed an action alleging that PCGH failed to properly provided oxygen for their mother as she waited in the hallway, was removed from the hospital, and was transported to the nursing home. They claim that the Ms. Williams death resulted from negligence, not medical malpractice, and as such the case did not need to be submitted to a Medical Review Panel prior to going to court. PCGH disagreed and filed a prematurity exception claiming the allegations involved medial malpractice and must be submitted to a Medical Review Panel under the Louisiana Medical Malpractice Act ("MMA") La. R.S. 40:1299.41et seq. After a hearing, the trial court maintained PCGH's exception , found that the case was premature, and dismissed the plaintiffs' suit.

On appeal, the court considered whether the hospital's inability to properly evacuate a patient and failure to provide oxygen to a patient who needed oxygen falls under the MMA. Under Louisiana Code of Civil Procedure article 926 (A)(1), the purpose of the objection of prematurity is to slow the progress of an action, but not defeat it. A premature suit is one that has been brought before the right to enforce the claim has accrued and is determined by the facts that exist at the time the suit is filed. The objection is usually used when the applicable law or contract has provided a procedure for someone to seek relief before resorting to judicial action. Under the MMA, medical malpractice claims against qualified health care providers must go to a Medical Review Panel for consideration before a civil action may be commenced in any court. The exception of prematurity is the correct procedural mechanism for a health care provider to invoke when a medical malpractice claim is not submitted to a medical review panel first. Here the burden or proving prematurity is on PCGH--they must show that the allegations fall under the MMA.

Only torts that "arise under medical malpractice," are covered by the MMA. In addition, the Louisiana Supreme Court has held that any ambiguity as to whether the MMA applies should be resolved against finding that the claim is medical malpractice.

The MMA defines "malpractice" as:

Any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient . . La.R.S. 40:1299.41 (A)(13).

The Louisiana Supreme Court has set forth six factors to help courts determine whether a claims is medical malpractice:
1. The wrong is "treatment related," or caused by a lack of professional skill.
2. The wrong requires expert medical evidence to determine if the standard
of care was breached.
3. The act or omission involved assessment of the patient's condition.
4. The incident occurred in the context of a physician-patient relationship in
the scope of activities the hospital is licensed to perform.
5. The injury would not have occurred if the patient did not seek treatment.
6. The alleged tort was intentional.

In this case, the Court of Appeals concluded that when the six factors are applied to the evidence, the proper conclusion is that the claims asserted fall under the purview of the MMA. As such the dismissal for prematurity was proper and the Court of Appeals upheld the trial court's decision.

If you believe you have a claim against a medical provider it may or may not be a medical malpractice claim. As this case shows, under the Louisiana Medical Malpractice Act, additional steps must be taken if the nature of the claim indicates that the MMA applies. If these steps are not taken, the claim will fail. A general tort claim, however, does not have the additional statutory requirements. This is just one more reason why the success of your case depends on a bright, experienced attorney, who understands the intricacies of medical malpractice law.

In Louisiana, a study shows that crash rates continue to rise for drivers under the age of 25 despite outlawing text messaging while driving. In three other states, crash rates were shown to have actually increased after the enactment of anti-texting laws, and, in all four states researched, there were no reductions in crashes after the enactment of these laws.

The study, conducted by the Highway Loss Data Institute (HLDI), was carried out in Louisiana, California, Minnesota, and Washington. Researchers compared statistics of crashes before and after the texting bans were enacted in these states. The four states' data was then compared to the states that do not have texting bans. The results were obviously not the expectation of lawmakers and has left many troubled by what can be done to counter the dangers technology is creating.

HLDI says that one possible explanation for the increasing negligence and rise in crash levels could be that people are continuing to text in spite of these laws.

Adrian Lund, president of the HLDI and the Insurance Institute for Highway Safety, suggests that noncompliance with the laws specifically is not the reason for the spike in crashes, but perhaps how people may be trying to hide their behavior. He suggests, rather, that the increase in negligence could be due to drivers hiding from plain view their text messaging activities. "If drivers were disregarding the bans, then the crash patterns should have remained steady. So clearly drivers did respond to the bans somehow, and what they might have been doing was moving their phones down and out of sight when they texted, in recognition that what they were doing was illegal. This could exacerbate the risk of texting by taking drivers' eyes further down from the road and for a longer time."

The applicable text ban Louisiana statute is Title 32, Chapter 1, Part IV, Subpart L, Sec. 32:300.5 that states: "A.(1) [...N]o person shall operate any motor vehicle upon any public road or highway of this state while using a wireless telecommunications device to write, send, or read a text-based communication." The statute provides exceptions to police officers, firefighters, and emergency vehicle operators while engaging in the performance of their duties. The statute also does not apply to those drivers who, among other exceptions listed in the statute, are (1) texting to summon medical or other emergency help, or are (2) using a global positioning device for navigation. Pursuant to the statute, the first violation is punishable by a fine of up to one hundred seventy-five dollars ($175). Subsequent violations are punishable by fines of not more than five hundred dollars ($500). Moreover, by law, any violation is considered a moving violation.

Another Louisiana statute specifically targets minors in Title 32, Chapter 1, Part IV, Subpart L, Sec. 32:300.7: "B. [...N]o person who is seventeen years of age or younger shall operate a motor vehicle on any public road or highway in this state while using any wireless telecommunications device to engage in a call or write, send or read a text-based communication." Like the prior statute, certain exceptions are permitted. For example, a minor can use a wireless communications device (more commonly known as a cell phone or smart phone) to report a (1) traffic accident, (2) medical emergency, (3) serious road hazard, (4) situation where minor's personal safety is in jeopardy, or (5) criminal act against the minor or another person. A minor may also use a cell/smart phone if the motor vehicle is lawfully parked. Violation of the statute carries fines, which are slightly less than the statute directed to all drivers. The first violation is punishable by a fine of up to one hundred dollars ($100). Subsequent violations are punishable by fines of not more than two hundred fifty dollars ($250). If the minor is involved in a motor vehicle accident while using a wireless communications device, then the applicable fine is doubled. Violations of this statute are considered non-moving violations.

If you or someone you know is involved in an accident in Louisiana, including when the accident is caused by the careless use of cell/smart phones while driving, remember that you will need an experienced and knowledgeable attorney to assist you in navigating the complexities of the law so that you are compensated for your injuries. The courts tend to rely heavily upon criminal punishments relating to an accident when coming to their judgment of responsibility in civil proceedings, and anyone injured due to the negligence of another driver, especially one texting, should be compensated for the damage they've suffered due to the accident.

Continue reading " Negligence on the Rise in Louisiana in Spite of Texting Ban " »

After having faced a significant heart-related scare and receiving a stent implant, many patients are now facing a rather unbelievable reality: it has been discovered that doctors across the nation have been performing unnecessary surgical procedures in order to financially benefit. Doctors, implanting the device intended to unblock clogged heart vessels, are now accused of recommending the procedure in order to bill private and government health insurers for unnecessary medical procedures. A stent is essentially a mesh tube that is inserted most commonly inside the heart and then expanded, using a small balloon to open blocked arteries that prevent blood flow to heart muscle. Despite the fact that stents are a medical breakthrough, it seems as though many individuals are having these devices implanted without having any need for them. While some might believe this does not have any significant drawbacks, the reality is that the procedure implanting them, and the devices themselves, expose patients to a risk of future medical complications due to the fact they have an unnecessary foreign device inserted into their body.

As a result of these discoveries, numerous doctors all over the United States are currently being investigated or indicted, even sentenced to prison for performing unnecessary procedures on individuals. The main criminal charge these medical professionals face is health care fraud. Many times, this situation would go unnoticed if it were not for the hundreds of patient complaints pouring into the hospital boards, motivating investigations into why the doctors have performed so many of these specific procedures on individuals. One investigation of Dr. Mark Midei, of Maryland, led the Maryland Medical Board to hold that Medei was involved in "gross overutilization of health care services... and willfully making a false report or record in the practice of medicine." One statistic in particular leads some to believe that Dr. Midei is not alone in this practice: the number of stent procedures has almost tripled within the past ten years. What's more, the number of patients receiving this type of implant has increased steadily every year since 1993, and continues to rise.

Additionally, in Lafayette, Louisiana, in 2009, Dr. Mehmood Petel, formerly of Our Lady of Lourdes Hospital and Lafayette General Hospital in Louisiana, was convicted of 51 counts of fraudulent medical procedures and received the maximum sentence of ten years in a federal state penitentiary. Over 75 patients charged Dr. Patel with fraud and of performing unnecessary heart stent procedures on them. Testifying experts, as well as the Department of Justice, revealed that the majority of the patients who received such implant had little or no disease. Patel was also found to have falsified patient symptoms in medical records, including specific symptoms such as heart pain. The amount of money that Patel billed insurers was astronomical; between 1999-2003, Patel billed Medicare and provate insurance companies more than $3 million, pocketing more than $500,000.

In order to prove health care fraud, a certain set of facts need to be proven. Specifically, to convict a "defendant of health care fraud, the government has to prove beyond a reasonable doubt that he knowingly and willfully executed, or attempted to execute: a scheme or artifice --

(1.) To defraud any health care benefit program; or

(2.) To obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program in connection with the delivery of or payment for health care benefits, items, or services."
(United States v. Refert, 519 F.3d 752, 758 (8 Cir. 2008).

The issue many courts are facing is that the Medical Review Boards have expressed the desire to handle these situations themselves, absent the legal system. This presents patients with the dilemma of communicating what they have gone through and not receiving adequate compensation or justice at the end of the day. In fact, many Medical Review Boards feel that peer review solves any potential problems such as the unnecessary heart stent procedures. However, it has not been until recently that the sting procedures were investigated and/or prosecuted. The New York Times recently reported that stents are a profitable, big business within the medical field — manufacturers such as Johnson & Johnson (who are currently facing legal problems over their recalled hip implant devices) sold over $3 billion worth of stents last year alone. That number has steadily increased along with the incomes of the Doctor's who consistently utilize them.

If a person has had a heart stent implanted within the last ten years, exploration into their medical history and condition may be necessary. The old adage, "It is better to be safe than sorry," may be applied to individual's going through this situation. Instead of experiencing the fear that the heart stent may not have been necessary, allow a legal representative to explore the situation and clarify what is going on. However, they do not have to rely on the Medical Review Boards alone, having legal representation may help to protect their rights as well as ease a stressful situation into a manageable one.

Continue reading " Heart Stent Procedures Done Without any Need " »

Substantial Jury Award Upheld in Jeep Accident

Recently, the 4th Circuit Court of Appeals upheld a substantial jury award to a Louisiana couple whose unborn son was tragically injured after their Jeep Grand Cherokee reversed and hit the expecting mother, pinning her against a brick column. This injury, sustained by the mother, resulted in the baby being born with permanent brain damage. Unfortunately, the child survived less than a month, when the couple decided to remove him from life support. This traumatic event is claimed to be the result of DaimlerChrysler's defective design of the Jeep Grand Cherokee. The couple was awarded $5.08 million in 2008, which Daimler Chrysler recently attempted to appeal; however, the state appeals court affirmed the jury award. Critics have alleged that the award was excessive, and that the couple did not prove that the car's design was actually defective in order to be awarded such an amount. However, their complaint was not the first in regards to the "Park to reverse" problem that year Jeep Cherokee was experiencing.

Analysis of the time line of the case has given rise to speculation that the jury award should not have been upheld. The accident initially occurred on May 21, 1999, and the fatally injured baby was taken off of life support on June 7, 1999. The couple filed their petition against DaimlerChrysler on November 30, 2001, after being informed by a Los Angeles Times reporter that their experience was not unique and that numerous investigations into Jeep Grand Cherokees had been made due to a "Park to Reverse" problem. The matter went to trial on March 31, 2008 and on April 10, 2008 the jury awarded the couple $5.08 million. Following the decision, DaimlerChrysler appealed. The company argued that the trial court erred in not finding that the couple's case had prescribed, as it was filed two and half years after the date of the accident. Further, the company alleged that the trial court abused its discretion in admitting expert testimony and other evidence that allowed the jury to find a defective product and causation. The state appeals court went through DaimlerChrysler's allegations one by one and consistently held the company to be at fault.

To start with, DaimlerChrysler alleged that the case should have not been allowed to be heard, since the couple filed their petition over two years past the date of the initial injury. The court recognized that "prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong...but rather, prescription begins to run against a claimant when he obtains actual or constructive knowledge of facts indicating a cause of action." (Guillott v. DaimlerChrysler No. 2008-CA-1485 (9/24, 2010)). The court reasoned that the husband had no reason to suspect anything other than misfortune in regards to the Jeep reversing into his wife; there was nothing to indicate that the vehicle had a defective design which caused such an event. Further, the couple was never put on notice or told about the issues surrounding problems relating to the Jeep Cherokee. The manufacturer never took action to notify the couple of these problems even though, on June 9, 1999, only a matter of days after the couple's son was taken off life support, the company's local counselor faxed a copy of the couple's accident to Chrysler headquarters. These facts led the 4th Circuit to hold that prescription had not run and the couple had filed their petition against the company in a timely fashion.

Secondly, DaimlerChrysler argued that expert testimony regarding the design of the Jeep Cherokee should not have been admitted. However, the court held that a trial judge has wide discretion in whom to allow and not allow to testify, and as such, it will not be disturbed by an appellate court unless it is clearly erroneous. What is interesting is that when the expert did testify in regards to the vehicles design, he declared that the Research Testing Center that tests the cars for operation before they are mass produced and sold found that the 93-98 Jeep Grand Cherokee had "unintended powered reverse found to occur only when the transmission was not shifted into gated park..." This in fact, is what most likely occurred to the couple on that fateful day when their unborn son was fatally injured.

Thus, contrary to many critics of this recent decision, the 4th Circuit's decision follows the rules of law operating over such legal issues. The couple never had any reason to know of or believe that their vehicle had a design defect that would cause such a tragic event. Further, the company never informed them of the numerous complaints regarding the dangerous issue; the only reason the couple found out about the issues was due to a newspaper reporter who called informing them that they were not alone in experiencing such a traumatic event. Thus, the couple filed the petition against the company shortly after they learned of the Jeep Grand Cherokee problem. Further, the expert testimony was allowed by the trial court, and the judge in such instances is allowed wide discretion to allow in what they deem reasonable for the case. The expert testimony revealed that the company had test results that demonstrated the vehicle's potential problem; however, they failed to resolve such issue. Thus, on appeal, the court held that the trial court's jury verdict was appropriate, not because the event was so horrendous that they blindly awarded such an amount, but rather, because the law supports such a finding and as such, it has been upheld.

If you find yourself in an accident and believe that a flaw with the car or parts therein may have caused the problem, contact an attorney immediately. By doing so you can begin moving quickly to make sure your case is handled properly and efficiently in order to get the justice and compensation you deserve.

In 2009, over 800 people were killed in motor vehicle crashes in Louisiana. An additional 73,000 persons were injured in car crashes. The applicability of these statistics are obvious: you and too many other drivers and passengers are at risk every time you get on the road in Louisiana. However, there are steps you can take to protect yourself each time you get in a vehicle that can increase your safety and limit the effects of a crash on your health and the health of others in the car.

Sadly, almost 50% of fatal car crashes involve alcohol. A conviction for driving under the influence of drugs and/or alcohol results in a mandatory ignition interlock hardship license and additional penalties including, but not limited to, a permanent criminal record, 6 months in jail, $1,000 fine plus court costs, and losing your driver’s license for 90 days. Furthermore, after three misdemeanor DUI convictions, these charges become felonies. Felonies are even more serious than misdemeanors and involve harsher penalties. These very real criminal penalties pale in comparison to the financial and emotional hardships those who cause a serious accident while impaired will suffer.

While hazards like a drunk driver are, at times, nearly impossible to avoid, there are some things you can do to protect yourself and your passengers while you are driving. Efforts that will minimize your exposure to serious harm include, but are not limited to, driving the speed limit, wearing your seat belt, and, when appropriate, wearing a safety helmet. Safety helmets reduce the risk of death by 29% and the risk of fatal head injury by 40%. It is important that you make sure that you and all of your passengers are wearing your seat belts before you start driving because more than 65% of drivers who are killed in crashes were not wearing their safety belts. Young drivers and passengers are especially resistant to wearing seat belts. A Louisiana study shows that 14% of all high school students report that they rarely or never wear seat belts when riding with someone else. By making sure you and your teen wear your seat belts, you will be saving money not only through perks like those offered by car insurers but overall as a taxpayer. Louisiana residents spend almost $6 billion annually paying for car crashes, which comes out to about $2,000 per licensed driver. If all residents of this state were to make sure to secure their seatbelt before driving, a lot of money could be saved solely through practicing safe driving techniques.

A majority of accidents on the roads are just that: accidents. Unavoidable and merely a reality due to unforeseen circumstances, these incidences have a wide variety of results that almost always require some sort of legal process, whether an insurance investigation or litigation. However, drunk or reckless driving almost always requires either the driver, or the victim(s), to pursue legal action due to the devastating consequences involved. Should you be in an accident with a drunk driver, we hope that you utilized the simple tips mentioned in this blog regarding a seat belt and careful driving as these will often mitigate the personal damage caused. Not every injury is avoidable, though, and it is important that, if you are injured in a drunk driving accident, you retain the best legal counsel available to insure your damages, however great, are compensated.

Continue reading " Louisiana Car Accident Statistics Show Safety Precautions Necessary When Driving " »