Louisiana Personal Injury Lawyer Blog

Hospitals, their staff, and doctors must treat patients in accordance with an established "standard of care." A standard of care is generally the amount of care a reasonable person would exercise in a particular situation. For doctors and nurses this means that they must act in a manner similar to a reasonable person with similar training and skills in that profession. They must conform their conduct to the customs of their profession.

In the seminal case, Belinda and Jonathon Johnson ("the plaintiffs") filed a lawsuit against Morehouse General Hospital and Ms. Johnson's treating doctor. The plaintiffs alleged that the negligent care provided by the treating doctor and the hospital staff to Ms. Johnson resulted in injuries to plaintiffs' son.

Belinda Johnson is an insulin-dependent diabetic and, because of this condition, her pregnancy was considered high-risk. In such high-risk pregnancies, delivery is usually accomplished through a C-section once the baby's lungs have sufficiently developed. When Ms. Johnson was approximately 36 1/2 weeks pregnant, she made an appointment with her treating doctor because she had become concerned about the baby's health. Over the course of the next four days, Ms. Johnson received care from Morehouse Hospital staff and her treating doctor because of continuing concerns regarding the Ms. Johnson's baby. According to the trial court jury findings, both the Morehouse Hospital staff and the treating doctor were negligent in their care of Ms. Johnson. Ms. Johnson's son was born with brain damage and cerebral palsy which were caused by lack of oxygen to the brain during the delivery process.

The jury found that the actions of the hospital staff and the treating doctor fell below the applicable standard of care which resulted in injury, loss, and damage to the Johnson's son. A determination of fault in a medical malpractice suit requires a fact-specific analysis in each case. Based on the evidence presented, the jury apportioned 80% of the fault to Morehouse hospital and 20% of the fault to the treating physician. This finding was appealed. The court of appeal found that "the jury was manifestly erroneous" in its findings and re-apportioned the fault, finding Morehouse Hospital 20% at fault and the treating physician 80% at fault. The Louisiana Supreme Court reviewed the case to determine if the court of appeal properly modified the jury verdict.

When a party brings a medical malpractice lawsuit against a doctor or a hospital, that party, known as the plaintiff, must establish that 1) the established standard of care governing the doctor's and/or hospital staff's actions; 2) the doctor and/or staff failed to practice within that standard of care and therefore acted negligently; and 3) that the doctor and/or staff's actions were the cause of the resulting injuries to the plaintiff.

Nurses are held to the same standard of care as doctors. In an action against a hospital, the plaintiff must demonstrate that the hospital staff provided sub-standard care which resulted in injury to the plaintiff. In cases where two or more parties are accused of causing injury to the plaintiff, a jury may apportion the fault among the parties accused, based upon each party's relative negligence. A party may be relieved of its responsibility for its negligence, if after that party's conduct has ceased, but before the plaintiff has suffered injury, an intervening cause, such as another's negligence, comes into play and alone causes the plaintiff's injuries. However, if the original party should have known that his or her negligence could result in injury, he or she will still be liable for negligence, even if there is an intervening cause. If a jury finds that multiple parties are at fault for a plaintiff's injuries and that case is later appealed to a higher court, and that court of appeals finds that the jury's apportionment of fault is "'clearly wrong,'" that court should adjust the award using certain factors.

In the Johnson's case, the Louisiana Supreme Court used the factors laid out in a 1985 Louisiana Supreme Court case, Watson v. State Farm Fire & Casualty Insurance Co., to reapportion the fault between the treating doctor and the hospital after finding that the jury's apportioning 80% of the fault to the hospital and 20% of the fault to the physician was incorrect based on the evidence presented. As stated in the supreme court's decision, the five factors an appellate court should consider in determining the degree of fault are: "(1) whether the conduct resulted from inadvertence or involved
an awareness of the danger; (2) how great a risk was created by the conduct; (3) the
significance of what was sought by the conduct; (4) the capacities of the actor,
whether superior or inferior; and (5) any extenuating circumstances which might
require the actor to proceed in haste without proper thought." After weighing these five factors, the court reapportioned the fault, allocating 50% to the doctor and 50% to the hospital.

This case demonstrates the importance of facts and court discretion in the awarding of damages in a medical malpractice lawsuit. The evidence regarding individual negligence, and the manner in which that evidence is presented, is very important to both trial court and appellate court proceedings. Not having the proper legal representation may lead to such issues being mishandled and a ruling less favorable than you deserve.

Continue reading " Louisiana Supreme Court Changes Apportionment of Fault in Medical Malpractice Case " »

The plaintiff, Linda Garcie, filed a claim against the city of Shreverport after she sustained multiple injuries from tripping over an elevated portion of a sidewalk within the city. Ms. Garcie was walking her dog when she tripped over a crack in the sidewalk. The sidewalk was located outside the residence of Ms. Emily Pasquier, and was maintained by the city of Shreveport. After the pain in her right shoulder continued to bother her days after the accident, Ms. Garcie decided to seek medical treatment for her injuries. The court found the city to be 75% liable for Ms. Garcie’s injuries, while the court determined that the remaining 25% of liability was from Ms. Garcie’s own fault. In filing its appeal, the city contended that the trial court erred in finding that the city was at fault for its failure to maintain the sidewalk on which Ms. Garcie tripped because the city had no knowledge of the apparent defect in the sidewalk.

The determination for a city’s liability over public objects, like a sidewalk, rests on three key factors: knowledge, opportunity, and neglect. LSA-R.S. 9:2800 states that in order to find a public entity liable for damages based on the condition of objects within their control, the public entity must have had actual or constructive notice over the condition of the object, have had a reasonable opportunity to remedy the defect, and have failed to do so. In Lee v. State, the court determined that in order for an individual to recover against a public entity, the plaintiff must show by a preponderance of the evidence that (1) the thing that caused damage was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of plaintiff’s harm. The court in Graves v. Page established that in order for the appellate court to overturn the decision, the appellate court must determine whether the trial court’s conclusion is reasonable based upon the record as a whole.

Unfortunately for the city of Sherveport, the evidence presented at the trial court was heavily stacked against them. During the trial, it was discovered that Mr. Pasquier contacted the city on multiple occasions to notify them of the sidewalk’s condition. Originally, the Pasquires reported a three inch crack in the sidewalk, which was later repaired by the city. However, Mr. Pasquire testified that sometime between 2006 and 2007 a one inch crack in the same sidewalk reappeared. Again, he called the city to request a repair of the sidewalk. However, Mr. Pasquire also testified that the newly formed crack in the sidewalk was obvious to him and he had walked multiple times across the sidewalk without tripping. The city’s superintendent of street and drainage was responsible for the intake of street issues, like Mr. Pasquire’s report of the reoccurring sidewalk crack. The superintendent, relying on the city’s C-CAR complaint system, stated that at no time did Mr. Pasquire’s new sidewalk complaint ever appeared in their system. The system relied on an operator to input all public complaints requiring city maintenance. Due to Mr. Pasquire’s vague recollection of reporting the second sidewalk issue, and the failure of the city’s complaint system to not recognize any complaint by Mr. Pasquire, the city questioned whether the complaint was made at all. The city argued that Ms. Garcie failed to establish all elements of liability necessary to hold the city responsible because there was sufficient evidence to show that Mr. Pasquire’s sidewalk issue was never reported to the city, therefore preventing actual or constructive notice by the city of the defect.

The 2nd Circuit, following Graves v. Page, failed to see any evidence presented by the city that the trial court was clearly wrong in finding that Sherveport received actual notice of the defective sidewalk prior to Ms. Garcie’s fall. The trial court found Mr. Pasquire to be a creditable witness, and the failure of the computer system to recognize a complaint by Mr. Pasquire could reasonably be concluded as a failure of the operator to input the complaint. The requirement to hold a city like Shereveport responsible for defective sidewalks is by no means an easy case. However, the apparent failure of Shereveport to repair a sidewalk that had been reported as defective, resulting in injury, was enough to find the city liable in Ms. Garcie’s case.

Injuries to yourself or a loved one should not be taken lightly. If you believe that an injury was the result of some defect, you should consult with a lawyer, as you might be entitled to compensation.

Continue reading " 2nd Circuit Affirms City of Shreveport’s Liability for Failure to Maintain Sidewalks " »

This post continues from yesterday:

The trial court relied on the testimony of Mr. Williams’ account of events leading up to his injury in making its conclusion of what occurred. While the trial court did hear testimony from an IESI employee who stated that the garbage trucks did not have flaps on the top of the garage truck capable of causing the damage to the cable box, the trial court felt that the demeanor and testimony of Mr. Williams made him a credible witness. Though there were a few inconsistencies with Mr. Williams’ story, the trial court was confident in his consistency with the major details of the incident to rely on Mr. Williams’s testimony about the garage trucks flap. The appellate court concluded that there was no manifest error in the trial court’s ruling that there was a flap rising form the top of the truck.

The appellate court dismissed IESI’s second argument because the court failed to again find any clear error made by the trial court in its conclusion that Mr. Williams had in fact met his burden to show that IESI had breached their duty. Benjamin v. Housing Authority of New Orleans notes that, through the question of whether a defendant had a duty to the plaintiff is a question of law, the question of whether the defendant breached that duty is a question of fact. IESI did not dispute that they owed a duty to Mr. Williams, only that the evidence was insufficient to show that IESI had breached that duty. Again, the appellate court is required to apply the manifest error doctrine to determine whether a trial court clearly erred in its factual determination of breach.

The court once again determined that IESI failed to show sufficient evidence that a clear error occurred in the trial courts conclusion. The court of appeals noted that the trial court was highly suspect of the garbage truck workers who, immediately after the incident, returned to the office so that they could “chit chat” before resuming their route in Mansura. The suspicious behavior, coupled with the factual finding that there was indeed a flap on the truck that caused the accident, was enough information for the appellate court to find that the trial court had made a reasonable conclusion in their factual finding of breach.

IESI’s final argument, an interesting one to say the least, was unsuccessful because IESI failed to meet the burden of proof required to hold a third--party liable for injury. In filing its answer to the court prior to the trial, IESI claimed “third party fault” by asserting that it was in part the fault of the cable company for the accident. IESI argued that the cable company was at fault for the incident for failing to maintain their cable box in compliance with Louisiana regulations, and therefore should have been apportioned fault for the injuries to Mr. Williams. When a defendant believes that a third-party to a suit is at fault, the burden is then on the defendant to show, by a preponderance of the evidence, that the third party was a cause in fact of the damage. As stated in Terro v. Casualty Reciprocal Exchange, a party who attempts to utilize a comparative fault defense bears the burden of proving by a preponderance of the evidence that such negligence was a cause-in-fact of the accident. Like the prior arguments to the appellate court, the manifest-error standard shapes the appellate court’s review of a trial court’s ruling as to whether sufficient evidence was presented to rule in favor of the claimant-defendant.

Unfortunately for IESI, like the prior arguments before it, the appellate court saw no manifest error made by the trial court in its determination that IESI failed to meet its burden of fault on the cable company. No evidence was presented to suggest that the cable company had any duty to maintain the wires which caused the accident, makings IESI argument completely baseless. Therefore, the appellate court had no problem in finding that no manifest error existed in the trial court’s refusal to assign any percentage of fault to the cable company.

Reversal by the appellate court is a tough sell, and with the manifest error standard in place, an appellant’s argument must show clear error in order to receive a judgment in their favor. Too many questions were raised against IESI’s actions during Mr. Williams’ injury for there to be a clear error made by the trial court, and IESI now faces a $50,000 pay-out because of it.

Injuries to yourself or a loved one should not be taken lightly. If you believe that an injury was the result of some defect, you should consult with a lawyer, as you might be entitled to compensation.

Continue reading " Freak Garbage Truck Accident Still Has Real Consequences, Monetary Damages to Victim " »

Freak incidences occur every day that do have very real consequences for the responsible party. While some things may seem unavoidable for the victim, the party which caused the injury must go before a court and try to prove their innocence. One recent case, involving a garbage truck and down cable wire, helps illustrate how even unusual chains of events can have real consequences.

The plaintiff, Randy Williams, filed suit against the Louisiana Corporation IESI after the company’s garbage truck caused neck and shoulder injury to Mr. Williams. On December 17 2003, Mr. Williams stopped the IESI owned garbage truck during its daily garbage pick-up to request the help of the garbage men. Mr. Williams was requesting the help of the men to get his garbage can to the curb. After the men provided him assistance, Mr. Williams went to the trunk of his car. Mr. Williams testified that he heard a snapping noise and was suddenly struck by the end of a cable wire. It was concluded that the top of the garbage truck had snagged on the end of the cable wire as the garbage men continued on their route after assisting Mr. Williams. After the IESI employee’s realized what had happened, they pulled the wire loose from the truck and informed Mr. Williams that they would send help to fix the cable wire. The trial court found the IESI to be 100% liable to Mr. Williams’ injuries, awarding him just over $50,000.00. The appellate court affirmed the trial court’s ruling, while bringing to light the standard needed by a plaintiff to succeed in the different factual and legal questions required to hold a person liable for negligence.

A prima facie case (or a case in which the evidence presented is sufficient for a judgment) of negligence rests on a plaintiff’s ability to show that a duty was owed to the plaintiff by the defendant, the defendant breached that duty, and actual damage resulted as a direct cause of that breach. IESI believed that the trial court incorrectly determined that Mr. Williams had successfully met this burden. IESI made three arguments to the 3rd Circuit, requesting a reversal of the trial court’s decision: (1) IESI claims the trial court erred in concluding that a flap on the top of the garbage truck was what snagged the cable box and caused the accident; (2) IESI claims the trial court erred in finding that Mr. Williams met his burden of proving that IESI breached its duty of care to Mr. Williams; and (3) IESI claims that the trial court erred in failing to consider the possibility that the injury was in part the fault of the cable company in failing to maintain the cable wire as required by Louisiana regulation.

IESI’s first argument was unsuccessful because it failed to show a clear error made by the trial court that the garbage truck’s flap was the cause of the snapped cable. The appellate court first determined that the argument presented was an attack of the factual conclusions made by the trial court. When reviewing questions of fact determined by the trial court, the appellate court follows the manifest error doctrine. As stated in Rosell v. ESCO, the manifest-error doctrine states that the appellate court is only to reverse a factual determination of the trial court if it finds that the conclusion was clearly wrong or manifestly erroneous. When dealing with witness testimony, Rosell stated that witness credibility demands great deference to the facts of the case; only the fact finder can be aware of the variation in demeanor and tone of voice that bear so heavily on the listener’s understanding and believe in what was said.

This entry will be continued tomorrow, featuring the court’s findings regarding Mr. Williams’ claims.

A wide variety of events can occur to cause injury. The courts, when faced with a civil litigation involving a personal injury, are forced to narrow the cause of said injury in order to determine how much damage was caused by an incident. When a person has a series of injuries, or has a less than sterling claim, the courts are forced to decide just how responsible the incident was for the pain suffered.

A recent case involving a malfunctioning bridge and a questionable "victim" helps highlight this problem. The plaintiff in this case, Ms. Trahan, was stopped at the Highway 14 Bridge in Abbeville, Louisiana as a boat passed under. The bridge, owned and operated by the defendant Louisiana Department of Transportation & Development, failed to correctly fall in place once the boat had safety passed. The bridge incorrectly sat between 3 to 7 inches above the road’s surface. Ms. Trahan hit the raised area while traveling approximately 15 miles per hour. Ms. Trahan claimed that she had sustained severe back pain as a result of the collision. The state argued that they were in fact liable for the defect in the bridge, but the injury sustained by Ms. Trahan was not at all related to the defective bridge. The trial court agreed with the state department and dismissed the case. In its conclusion, the trial court found the credibility of Ms. Trahan to be highly suspect, and was presented with evidence that suggested alternative possibilities for Ms. Trahan’s injuries. Ms. Trahan’s sole appeal rested on the fact that the trial court erred when it failed to find that the injury to Ms. Trahan was a direct result of the bridge incident.

A necessary element to a claim of liability is not simply that an injury exists, but that the factual evidence sufficiently shows that the defendant was the actual and proximate cause of that injury. In ruling on questions of fact, like the one presented in this case, the appellate court follows the manifest error standard when determining whether to affirm or reverse the trial court’s decision. At the trial court, Ms. Trahan was required to show by a preponderance of the evidence that her back injury was a direct result of the bridge’s defect. Because the trial court determined that Ms. Trahan failed to meet that burden, the manifest error standard, as stated in Lewis v. Department of Transportation & Development, requires the appellate court to determine only if the trial court’s factual conclusion were reasonable. The decision is only reversed if it is found that the trial court’s finding was clearly wrong or manifestly erroneous. The case of Orea v. Scallan puts the standard in perspective, stating that the appellate court may not reverse simply because it is convinced that, had it been determining the facts as they were presented in the trial court, it would have come to a different outcome. Additionally, when a trial court’s findings are based on the credibility of witnesses, Rosell v. ESCO establishes that the trial court’s reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review by the appellate court.

In following the manifest error standard, the 3rd Circuit affirmed the trial court’s conclusion by finding that the trial court had a reasonable factual basis for its finding. During the trial, it was revealed that Ms. Trahan suffered from spondylolysis, a congenital condition that causes structural weakness in the spine. Doctors close to Ms. Trahan testified that Ms. Trahan found herself in multiple situations prior to the bridge incident that could have caused the injuries. Throughout the trial, Ms. Trahan presented different accounts to different doctors about the nature of her back condition, leaving the trial court to determine Mr. Trahan’s credibility to be “highly suspect.” Ms. Trahan case shows the importance of an individual to not only show that an injury exists when filing a negligence claim, but also that the injury was the actual and proximate cause of the alleged negligent actor.

Injuries to yourself or a loved one should not be taken lightly. If you believe that an injury was the result of some defect, you should consult with a lawyer, as you might be entitled to compensation.

Continue reading " Court Dismisses Case Relating to Spine Injury on Abbeville Bridge " »

In a previous post, we discussed Uninsured/Underinsured Motorist ("UM") coverage provisions in auto insurance policies. In short, UM coverage is intended to protect the policyholder in cases of injury or loss inflicted by another driver who has inadequate insurance or no insurance at all. UM coverage is not without limitation, however, as most policies apply the coverage only to the named policyholder himself and in cases when the loss or injury occurs through use of the vehicle covered by the policy. But, an insurance policy is "a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code." Cadwallader v. Allstate Ins. Co. Thus, the policy language will control the details of UM coverage, so long as any limitations in the provision do not violate public policy.

The general rules of contract interpretation were applied by Louisiana's Second Circuit Court of Appeal in the case of Kottenbrook v. Shelter Mutual Insurance Co. On June 29, 2009, Jack Kottenbrook, an Ouachita Parish sheriff’s deputy, was involved in a car accident while riding as a passenger in a police cruiser. He suffered serious injuries in the crash and eventually settled with the at-fault driver and the driver's insurer. Kottenbrook then filed a lawsuit against Shelter Mutual Insurance Company, alleging he was covered under the underinsured motorist provision in a policy for which he was identified as an "additional listed insured." This policy was issued to Jack Armstrong, Inc., a corporation, and specifically covered a Ford Mustang owned by the corporation.

Shelter disputed that the policy's UM coverage extended to Kottenbrook, given that he was not "occupying" the "covered vehicle" at the time of his injuries. The Second Circuit declared that "the coverage extended to Kottenbrook is defined and limited under the policy." A reading of the definitions contained within the policy led the court to find that UM coverage "was limited to Kottenbrook’s use of the [Mustang,]" not any other vehicle such as the police cruiser. The court found nothing impermissible about this limitation from a public policy perspective, and affirmed the trial court's judgment for Shelter.

As we have seen in other cases involving insurance disputes, Louisiana courts are inclined to enforce insurance policies--including all lawful limitations to coverage--as written. Policyholders are therefore well advised to read their policies carefully so as to understand exactly the nature of the coverage offered in exchange for premiums paid.

Continue reading " Court Examines Limits of Uninsured Motorist Coverage in Ouachita Parish Auto Accident " »

Cities and towns are responsible for the maintenance and upkeep of streets and sidewalks. The issue arises though, when such streets and sidewalks fall into disrepair and injure residents. Yet, no person shall have a cause of action against a public entity (such as a city) for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had reasonable opportunity to remedy the defect and has failed to do so. Louisiana revised Statute 9:2800. To recover against a public entity such as a city for damages certain requirements have to be met. Thus, unless the legal requirements are all fulfilled a plaintiff may or may not be able to recover depending on the circumstances.

In a recent Louisiana Second Circuit Court of Appeal decision, the court explores the requirements that a plaintiff must meet in order to recover for injuries sustained as a result of a defective thing in the city's custody and care. The facts of the case involve a plaintiff who was walking her dog along a city sidewalk in Shreveport, Louisiana. While walking her dog she tripped over an elevated portion of the sidewalk and fell to the ground. The fall caused her substantial pain in her shoulder which led her to seek medical treatment the day after the incident at the emergency room of Willis Knighton Health Center. She eventually filed a petition for damages against the defendant city of Shreveport and was awarded $964.99 for medical expenses and $20,000 in general damages. The City appealed the decision on the basis that the requirements for a lawsuit against a city were not fulfilled.

To recover against a city for damages due to a defective thing, such as a sidewalk, the plaintiff must prove by a preponderance of evidence four things.
1. The thing that caused the plaintiff damages was in the defendant's custody;
2. the thing was defective due to a condition that created an unreasonable risk of harm;
3. the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and
4. the defect was a cause in fact of plaintiff's harm.

The owner of the home that was located directly in front of the sidewalk testified that he did in fact contact the city in regards to the condition of the sidewalk. Specifically, the owner stated that he reported the crack to the City, which initially repaired the sidewalk. However, over time the sidewalk condition deteriorated until a one-inch crack appeared in the same area that was in disrepair originally. Again, the owner called the City to request a repair of this new crack in the sidewalk. This second phone call to the City took place nearly ten months prior to the plaintiff's fall. Yet, the City did not take action until after the plaintiff's incident. The City argued that the crack was apparent and that a reasonable person would have seen it and avoided it, thus, relieving them of liability. The owner of the house testified that noting obstructed a person's view of the crack in the sidewalk, that the one-inch crack was obvious to him and that he had walked on that part of the sidewalk many times without tripping. A conflict arose in the testimony, when the City Superintendent of Streets and Drainage testified that the public complaint system named "C-CAR," which collected residents' reports of defective streets and sidewalks and not received a complaint until after the plaintiffs accident. Thus, the City argues that the plaintiff failed to present sufficient evidence to prove that the City received notice of the defective sidewalk because the owner of the property where the sidewalk was located could not specify exactly when he called the City and his testimony was directly contradicted by the City Superintendant.

The trial court heard both sets of conflicting testimony from both the owner of the property where the sidewalk was located and the City Superintendant of Streets and Drainage. The evidence presented showed that although the owner of the property was unable to recall the exact dates on which he called the City to report the sidewalk defect, he testified that he was beyond certain that he had reported the problem many months before the plaintiff's fall and the subsequent repair of the sidewalk. Further, despite the lack of record of any complaint prior to the plaintiff's fall, the court found that he could reasonably had notified the City, even if the C-CAR system did not have any record of such complaint. Thus, the City could not support their argument that they did not have actual or constructive knowledge of such defect in the sidewalk prior to the plaintiff's fall, thus, they are liable for the plaintiffs damages.

In conclusion, if you have been injured as a result of a defective street or sidewalk you should obtain legal representation. It is with earned experience that individuals can be confident that their problems will be addressed and zealously argued for in order to effectively receive what they deserve.

Continue reading " Injuries, Damages Caused by Defective Sidewalks: City Can Be Held Liable " »

In Darren Dugas, et al v. Bayou Teche Water Works, et al, the Third Circuit Court of Appeal for Louisiana (“Court”) provided guidance on Louisiana statute La. R.S. 9:5624, which limits the liability of any government entity in Louisiana in connection with a public works for a two-year statutory period. The plaintiffs, the Dugas family (“Dugas plaintiffs”), sued Bayou Teche Water Works, Inc. (“Bayou Teche”) and its insurer for damages they allegedly sustained from Bayou Teche's dumping of brine into an irrigation canal.

The Dugas plaintiffs owned a stretch of farmland along an irrigation coulee in Iberia Parish, and used the irrigation water for their farming operations. Bayou Teche, the defendant, runs a potable water treatment plant nearby. According to the petition, the Dugas plaintiffs notified Bayou Teche immediately upon discovering the discharge, but Bayou Teche continued to discharge the brine into the waterway for about a year after. After the Dugas plaintiffs brought suit, Bayou Teche answered their petition by merely stating that it was a Louisiana corporation that complied with all applicable statutes and regulations in its operation. The company subsequently filed an exception of prescription, which the trial court granted. In granting the exception, the trial court relied on La. R.S. 9:5624, which states that “[w]hen private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.” As discussed previously, the statute was adopted to limit governmental exposure from claims for damages to property when the damage is caused by a public work. Nuckolls v. Louisiana State Highway Department. The policy behind the statute is to encourage projects that provide a public purpose or benefit. The statutory period begins to run when the damage is discovered. In other words, the suit must be brought within two years after damages are sustained. Therefore, any suit that is not brought within the two-year period is barred. By granting the exception, the trial court concluded that the Dugas plaintiffs did not bring their lawsuit within the period of time set by the law.
Since the burden of proving the exception of prescription is on the movant, the ultimate issue on appeal was whether Bayou Teche met its burden of proof. After reviewing the record, the Court concluded that Bayou Teche failed to meet its evidentiary burden. The Court reasoned that the evidence introduced at the lower level only addressed the defendant's allegations that the plaintiffs' own negligence caused their damages. At the hearing, Bayou Teche failed to argue how it satisfied the particular elements of the statute. It did not assert it was a government entity nor explain how its water treatment plant and the dumping of brine serve a public purpose.

This case is another classic example of how essential it is to seek a competent attorney who is knowledgeable and experienced at defending your claim.

Continue reading " Louisiana Third Circuit Court of Appeal Reverses Grant of Exception of Prescription " »

The use of asbestos in products such as concrete, bricks, pipes, and other building materials has made way for a large amount of litigation on asbestos-related diseases and deaths. This litigation can help victims of the chemical and their families find some sort of meaning and relief from the toxic material. Litigation on asbestos, however, is very difficult both because the asbestos-related damages did not result from a single, identifiable act, and because it is not only the companies that produced the asbestos which are guilty- it is also those that used and marketed it.

A recent case contains both of these difficulties. Phillip Graf was exposed to asbestos for a period of 30 years while working in several jobs including metal works and drywall. Such extended exposure to such toxic material places one at risk of contracting mesothelioma, a rare form of cancer. Graf suffered from mesothelioma and later died from the disease. His family, Beatrice, Doryk, and Paulette Graf are suing in response to his death. They have named 29 defendants in the case, including Benjamin Moore & Co. and Metropolitan Life. The Graf family claims that the defendants are not only guilty of designing, manufacturing, packaging, transporting, and selling asbestos products, but also aiding and abetting the marketing of asbestos products.

In a traditional personal injury case, the damage results from a single act, but in asbestos cases such as Phillip Graf’s, the damages occurred over periods as long as 30 years or longer. What is worse, typically problems that result from asbestos exposure take years to show. Mesothelioma itself is impossible to detect early on and its symptoms are similar to other diseases, so patients are frequently misdiagnosed. All of this makes it very difficult for plaintiffs to prove that their health problems resulted from asbestos exposure and then link that asbestos exposure to the actions of the defendants. In the Graf case, the Graf family will have to show that the suffering and death Phillip Graf endured from his mesothelioma was caused by asbestos exposure, and that the named defendants caused that exposure.

In one case of asbestos exposure a large amount of defendants may be guilty based upon their involvement in the asbestos use. Unfortunately, an employee cannot typically sue and employer for asbestos exposure because of the Louisiana Workers Compensation Act which requires that such injuries be addressed through workers compensation, not tort suits. As a result, it is important to find other theories of liability on which a victim can sue.

The easiest potential defendant is the building owners, if they are different from the employer. In Phillip Graf’s case, this would be the person or corporation which owned the building in which he was exposed to asbestos. Building owners are strictly liable for damages caused by asbestos on their property.

In the past, most litigation on asbestos focused on the companies that produced asbestos products. However, because of asbestos-related suits, many of these companies have since gone bankrupt. Some plaintiffs have attempted to draw even further chains of causality, suing manufacturers of products used in conjunction with other manufacturers’ asbestos products, such as the manufacturers of pumps and valves. Whether these companies can be liable for failure to warn of asbestos-related hazards in products made by others is still in contention. No matter the theory of liability, as we have illustrated before, to be liable the defendant’s conduct must be a substantial factor in the harm. Thus, for example, for Metropolitan Life, the Graf family will have to show that the company’s aiding and abetting of the marketing and negligence related to asbestos products was a substantial factor in Phillip Graf’s contraction of mesothelioma.

As cases such as Graf’s show, with the many liability strategies and the problems that arise over the timing of exposure and the development of the disease, litigation in asbestos cases can become extremely complicated. In order to fully protect and preserve your rights in an asbestos case, you need to be sure to retain an attorney who is familiar with the many complexities of asbestos cases.

Continue reading " Asbestos Cases Always Difficult, Involve Negligence and Diverse Defendant Groups " »

The Louisiana Court of Appeal for the Second Circuit recently upheld a trial court decision finding a Monroe motorist negligent following a minor collision in which she was rear-ended by a police cruiser as she was pulling across five-lane Forsythe Avenue. The plaintiff, Cathy Griffin, sued the City of Monroe and Police Officer Jeffrey Pilcher following the July 2008 collision.

The Trial Court held Griffin was clearly negligent, noting that Griffin barely avoided a collision with a westbound vehicle when she pulled her car out onto Forsythe. The Court held she then crossed the lanes of travel and entered the outside lane where the collision occurred. After taking the matter under advisement to determine whether any fault should be assessed against Pilcher, the trial judge found no fault on his part. The trial judge concluded that Pilcher was doing what was necessary to apprehend a speeder and was not driving with reckless disregard for the safety of others, whereas Griffin pulled onto Forsythe without seeing what she should have seen, namely, Pilcher’s approaching patrol car with its emergency lights flashing.

Griffin appealed both the Trial Court's finding that she was negligent as well as the determination that Pilcher was not negligent.

The accident occurred as Officer Pilcher, who was conducting a speed enforcement patrol on the 35 mph highway, observed a vehicle traveling 53 mph. Pilcher activated his lights and dashboard video camera, pulled from the parking lot he was in and began pursuit of the speeding motorist. Just as Pilcher began the pursuit, Griffin was preparing to exit the parking lot of a Chase Bank located on the westbound side of Forsythe. Griffin wanted to turn left across Forsythe and get all the way to the outside eastbound lane so that she could then take a right at Oliver Road.

At trial, Griffin testified that she had looked to her left (east) and then to her right (west) prior to entering Forsythe. She waited for a westbound truck coming from her left to pass and then entered the roadway. Because nothing had been coming when she looked right, Griffin did not look to her right again or stop in the turn lane to check for oncoming traffic before entering the eastbound lanes. Griffin testified that she did not see Pilcher’s patrol car traveling eastbound until it hit her from behind. However, an accident reconstruction expert testified that if Pilcher could see Griffin move across the westbound lanes of Forsythe, then she could have seen him approaching if she had looked in Pilcher’s direction. He also stated Griffin was turning at an angle and that her vehicle never got completely straight in the outside eastbound lane before the accident occurred.

In upholding the Trial Court's Opinion, the Court of Appeal relied upon La. R.S. 32:124 which provides that a “driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building ... shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” Additionally, drivers are required to yield the right of way upon the immediate approach of emergency vehicles making use of audible or visual signals. This statutory duty arises when a motorist observes or hears (or should have observed or heard) the audible or visual warnings.

Griffin also contended Pilcher's speed, lack of siren and use of a cell phone violated the duty of ordinary care. Louisiana law provides the driver of an emergency vehicle, when responding to an emergency call, or when in pursuit of an actual or suspected violation of the law may exceed the maximum speed limits so long as he does not endanger life or property but must not due so without reckless disregard for the safety of all persons. The appellate court held Pilcher's actions were not grossly negligent and he did not act with reckless disregard for the safety of others. Pilcher's speed was necessary to apprehend the speeder and occurred on a flat straight roadway when the traffic was not heavy. Moreover, the Court found Pilcher's hands-free cell phone conversation did not contribute to the accident.

It is important when involved in a car accident to immediately contact an experienced attorney so you can recover the money you deserve.

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In Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co., the 5th Circuit revisits the decision made by the U.S. Supreme Court in Robins Dry Dock Co. v. Flint, 275 U.S. 303(1927): a foundational precedent for both maritime law specifically, and modern negligence law, generally. In Robins, the Supreme Court articulated a rule that has endured to this day and has significantly influenced general negligence jurisprudence; namely "there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest." In TESTBANK (1985) the 5th Circuit reaffirmed the Robins rule that the court has consistently applied whenever circumstances necessitate doing so. After reviewing the rules from Robins and TESTBANK, the court in Catalyst applies these rules to the facts of the case.

On December 24, 2007, two tug boats with barge tows collided on the Mississippi River 2.5 miles upriver from the intake channel to the Sidney A. Murray hydroelectric plant. M/V Dan McMillan and its tow was operated by Defendant ARTCO, and M/V John Donnelly and its tow was operated by Defendant Ingram Barge Co. Several barges broke free from the tow of the Dan McMillan, including Barge TILC-37. Barge TILC-37 then drifted down river into the intake channel of Catalyst's facility and became grounded on the east bank of the intake channel, lodged against the station and abutment. The physical presence of Barge TILC-37 obstructed the intake channel which provides water to the turbine/generators of the electric power generation facility."
Because of the location of the barge, Catalyst had to reduce the flow of water in the intake channel to the turbines; and thus its output of electricity. This was necessary to prevent the barge from sinking and to allow safe access to the barge for its removal. Catalyst had to shut down six of the turbines and reduce the output of the remaining two because of the decrease of water coming into the intake channel. This allowed for the safe removal of the barge. Catalyst restored normal capacity to the plant at 6:30 p.m. on the 25th.

It is important to note that the power station is located "in a channel off the river. Catalyst owns the station and the surrounding property necessary for its operation. This includes the banks of the Mississippi River, the intake channel and the abutment on which the dam structure sits. The intake channel and a small island located in the mouth of the intake channel where it meets the Mississippi River are functional elements of the hydroelectric facility, acting as a pipe would to direct water into the station's eight turbines in order to produce electricity."
Catalyst filed a suit in Louisiana state court seeking damages for the value of the electrical power it was unable to generate due to the intrusion of the barge. The Defendants removed the case to federal district court. The defendants motioned for summary judgment and it was granted. Catalyst appealed and the 5th Circuit decided the appeal.

The Defendants' argued that Catalyst did not suffer any physical harm, and cited Reserve Mooring Inc. v. American Commercial Barge Line 251 F. 3d 1069 (5th Cir. 2001) as a controlling precedent. In Reserve a barge sank while anchored to a midstream mooring facility on the Mississippi River, blocking the site and rendering it unavailable for use by other vessels for 3 months. Reserve sued seeking lost revenue. "Because the sunk barge only interfered with Reserve's business expectancy by preventing other vessels from mooring at the facility for a period of time, this court (5th Circuit) concluded that Reserve's claim for purely economic damages must be denied."

The main thrust of the Defendant's argument is that there was no physical damage done to the intake channel or the rest of Catalyst's facility. Thus, they argue that Catalyst did not suffer any physical injury to a proprietary interest which is the requirement for recovery of economic losses. Also, the Defendants "presented no evidence that the barge did not disrupt the water flow, which everyone agrees is critical to Catalyst's operations", nor did they contest "the basic facts of the ownership and design of the facility": both of which are essential features of the support for Catalyst's claim.

Catalyst argued that its facility did suffer physical damage because "the presence of the barge in the intake channel, which is a functional component of Catalyst's hydroelectric facility interfered with the unobstructed continuous flow of water in the channel, impairing the ability of the facility to operate as designed." The following from an answer by Catalyst in the Defendant's Statement of Uncontested Material Facts sums up the reasons that Catalyst suffered property damage to a proprietary interest.

"The intake channel is Old River's private leasehold property and is the conduit portion of the facility which directs water into the turbines which power the Old River Station. The barge's physical entry into Old River's private leasehold property, its running aground on Old River's leasehold property, the physical recovery effort to secure and remove the barge from Old River's private leasehold property obstructed the conduit, thereby damaging it and physically preventing Old River from using its only source of power for its generators"

The court recognized that the interference with the water flow to the intake channel, hindered Catalyst's use of the facility. The court also recognized the recovery effort as a reason to support Catalyst's claim of damages. Remember, the water had to be restricted to the degree that six turbines were shut down and the remaining two reduced in power output so that the barge could safely be recovered by a tug boat. The decision states "the physical recovery effort to secure and remove the barge from the intake channel required a reduction in the flow of water necessary for the turbines to operate properly and generate the power they were designed to generate." A rule distilled from these facts was articulated by the court in the following: "Acts taken in mitigation to prevent permanent physical damage can serve as the physical damage requirement in the TESTBANK rule." Also, "costs incurred to mitigate damages satisfy the physical damage requirement of TESTBANK."

The court decided for Catalyst and concluded "that the entry of ARTCO's barge into Catalyst's privately owned hydroelectric facility caused physical damage to Catalyst's property and invasion of its proprietary interest. As co-licensees of the Sidney A Murray hydroelectric plant, the people of the town of Vidalia should be happy with the decision.

The Town of Vidalia and the Parish of Concordia have the honor and distinction of being the beneficiary and location, respectively, of the largest prefabricated power plant in the world and the first hydroelectric power plant in the State of Louisiana. In 1990 the Sidney A. Murray Jr. hydroelectric station was prefabricated at the Avondale Shipyard in New Orleans, and floated 208 miles upriver to its current location: 40 miles south of Vidalia. The facility sits one mile north of the Army Corp of Engineers Old River Control Complex between the Mississippi River and the Red Atchafalaya River, producing 192 megawatts by utilizing the flow of 170,000 cubic feet per second of water past eight hydroelectric turbines. The project is remarkable not just because it is the first hydroelectric plant in Louisiana, and the largest prefabricated hydroelectric plant on the planet; but it is also the product of a multinational collaboration, it produces clean and renewable energy for Vidalia, and the town of Vidalia is a co-licensee of the project. In addition to the obvious benefits of clean and renewable energy and the employment that the Sidney A Murray Jr. project bestows on Vidalia and the Parish of Concordia; the citizens of Vidalia also benefit from "stabilized energy rates" that they receive with the operation of the plant.

Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co. is a particularly interesting case for those living in Concordia Parish because it is a maritime tort case involving the Sidney A. Murray Hydroelectric Plant. The case is important because it includes a review of the standards for damage requirements established in Robins Drydock and Repair Co. v. Flint 275 U.S. 303 (1927) and reaffirmed in Louisiana ex. rel. Guste v. M/V TESTBANK 752 F.2d 1019 (5th Cir. 1985). After reviewing Robins and TESTBANK, the 5th Circuit then applies the Robins test to the particular facts of the case. This will be a two part discussion: the first part will identify and discuss the test developed in Robins and evaluated in TESTBANK. The second part will discuss how the 5th Circuit applied the Robins test to the facts of the Catalyst case.

In 1927 the United States Supreme Court decided Robins Dry Dock and Repair Co. v. Flint. This case established "the general proposition that claims for pure economic loss are not recoverable in tort." This decision has profoundly impacted not just maritime tort law, but general negligence law as well; with extremely broad implications and applications that resound to this day, over 80 years later. " No single decision in American tort law has more dominated the analysis of liability for pure economic loss than Robins Dry Dock Repair Co. v. Flint." Justice Holmes "denied the plaintiff, a time charterer recovery for financial loss which resulted from the defendant's interference with the plaintiff's use of the chartered vessel." The following hints at the scope of the effects of the decision.

"As many have noted, this denial of liability went sharply against the current of the overwhelming tendency of modern negligence law 'that pushed liability for physical injuries toward the full extent of what was foreseeable and shattered ancient barriers to recovery based on limitations associated with privity of contract and similar restrictive concepts'. Yet in the face of modern negligence law and notwithstanding that Robins was a case of admiralty, the decision remains, overwhelmingly, the majority view and represents the longest standing and most influential statement in American tort law of what has come to be called 'the economic loss rule'".

In the present case, the 5th Circuit articulates the Robins rule in the following: "It is well settled under the general maritime law that there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest."

To resolve the issue in Catalyst, the 5th Circuit has to apply the Robins rule to the facts of the case. An analysis of the application of this rule to the facts will be discussed later. However, the Court very succinctly makes the relevance of Robins to Catalyst clear in the following statement in, and about, Catalyst:

"the question in this case is whether Catalyst suffered such damage to its proprietary interest in its hydroelectric station as to satisfy this test and justify the recovery of the economic damages Catalyst seeks in this court."

As the above quotation about Robins makes clear, the Robins decision "remains, overwhelmingly, the majority view" that has existed since 1927. Curiously and serendipitously, the same court deciding Catalyst, the 5th Circuit of Louisiana, "engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law." In the State of Louisiana ex. rel. Guste v. M/V TESTBANK (1985) two ships collided on the Mississippi River, resulting in a toxic chemical release and the closure of an outlet on the Mississippi River for approximately 19 days. A variety of entities were adversely affected by this closure which compelled those adversely affected to file numerous lawsuits. These lawsuits were "consolidated before the same judge in the Eastern District of Louisiana". The defendants were granted summary judgment "on all claims for economic loss unaccompanied by physical damage to property." On appeal an en banc panel of the 5th Circuit affirmed the decision.

In TESTBANK, the 5th Circuit reaffirmed Robins; articulating specifically that "physical damage to a proprietary interest is a prerequisite to recovery for economic loss in cases of unintentional maritime tort." The 5th Circuit described the rule in Robins as a pragmatic rule that prevents "open ended liability" in cases where "a plaintiff has no proprietary interest in property that is physically damaged." The court recognized the Robins rule as effective in helping the trier of fact to avoid arbitrary judgments by having a "bright line rule" that places a "determinable measure on the limit of foreseeability" and that "allows for extensive losses....to be spread over first party or loss insurance." The court emphasized the pragmatic effects and benefits of the Robins rule in TESTBANK.

In Catalyst the 5th Circuit revisited both the Robins decision (by applying the rule) and its own decision in TESTBANK (the reaffirmation of the Robins rule). The Court relied upon Robins and TESTBANK as precedents for Catalyst, creating consequences for the Parish of Concordia and the town of Vidalia. In Catalyst, the 5th Circuit cites Kaiser Aluminum and Chemical Corp. v Marshland Dredging Co,. 455 F.2d 957 (1972), Dick Meyers Towing Service, Inc. v. United States, 577 F. 2d 1023 (1978), and Louisville & Nashville Railroad Co. v. M/V BAYOU LACOMBE, 597 F. 2d 469 (1979) as examples of the "consistent application of the rule stated by the majority in TESTBANK 'that there can be no recovery of economic loss absent physical injury to a proprietary interest.' "

A significant dimension of Catalyst is the review of Robins and TESTBANK standards for recovery. Considering the influence of Robins and the fact that this rule was perpetuated and reemphasized in TESTBANK, the combination of these cases provide powerful precedents that will demonstrate their influence in Catalyst. The application of these precedents to the facts of Catalyst will be very interesting and compelling.

July 4th, though best known as an occasion for grilling out, visiting the beach or lake, and watching the fireworks, is unfortunately also notorious for its high incidence of accidents and injuries. Many incidents, especially vehicle and boat accidents, are related to alcohol use. The Louisiana Highway Safety Commission recently announced that more than 87 state and local law enforcement agencies work overtime throughout the holiday weekend. Many of the agencies will be participating in the state's "Over the Limit, Under Arrest" campaign that aims to keep impaired drivers off the road. The Commission reports that the number of highway deaths has dropped significantly over the past few years: 16 people were killed on Louisiana highways over the Fourth of July holiday in 2007, and only two fatalities occurred last year.

Despite this positive trend and the stepped-up efforts by law enforcement, patriotic celebrants throughout Louisiana may still find themselves in dangerous situations over these holiday weekends. When calamity should strike, the parties involved may turn to the courts to resolve their dispute; the resolution will likely involve the court's application of negligence. The theory contains four basic elements that a plaintiff must show in order to recover from a defendant. First, a plaintiff must establish that the defendant owed him or her a duty. This is generally a straightforward matter, as all members of society have a responsibility to exercise reasonable care toward others; this duty takes such common sense forms as requiring users of fireworks to point bottle rockets away from bystanders or drivers to operate their vehicles in a safe manner. Driving a car or piloting a boat or jet ski while under the influence of alcohol or drugs is a clear violation of this duty. A person who fails to observe the obligation of safety and engages in conduct that poses an unreasonable risk of harm to others is said to breach this duty. This second element of negligence must be tied to the plaintiff's injury by way of the third element, causation. That is, the defendant's breach of duty must have resulted in the plaintiff's injury. A defendant is responsible only for the consequences that are directly linked to his or her misconduct.

The final element, harm, requires the plaintiff to prove that he or she suffered a loss. The court can award two kinds of damages to compensate the plaintiff for his losses: special and general. Special damages are those which are easily quantifiable, such as medical expenses, lost wages, or property repair costs. General damages cover intangible losses, such as pain and suffering. Trial courts are afforded great latitude in assessing general damage awards, which can potentially expose defendants to staggering liability.

The Insurance Institute for Highway Safety reports that the Fourth of July is the single day of the year with the highest rate of car crash deaths nationwide, with the second-highest rate occurring on July 3. This serves as a reminder how every holiday comes with it poor decisions and that people should, more than anything, remember to keep their family's safety a priority, on and off the highway. Additionally, any injury should receive both medical and legal attention lest a person's health, and rights, be violated due to rash decisions.

All of us here at the Berniard Law Firm hope that all of our readers enjoyed a happy and safe Independence Day, as well as an enjoyable shortened work week!