Louisiana Personal Injury Lawyer Blog

Odd things happen in everyday life that, really, no preparation on the part of the victim could prevent. Often chalked up to coincidence or just 'dumb luck,' these events do, however, still have legal ramifications for the responsible party, regardless of how odd or unique the event. One case recently affirmed by the Third Court illustrates that no matter how unusual, a responsible party still is responsible for the damage caused.

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.

Due to the heavy demands on the court system, the Louisiana Code of Civil Procedure includes several provisions to ensure that litigants do not unduly delay the resolution of their disputes. One of these is the concept of abandonment, which refers to an excessive lapse of time without any forward progress in a case. Generally, the Code considers a case abandoned if "the parties fail to take any step in its prosecution or defense in the trial court for a period of three years." Any party or interested person can file an affidavit stating that "no step has been timely taken" in the case, at which time the trial court will dismiss the action by order that is served on the parties by the sheriff. A motion to set aside the dismissal may be filed in the trial court within 30 days of service.

The Louisiana Department of Transportation and Development (DOTD) sued the owner, lessee, insurer, and driver of a truck that struck an overpass on I-10 in Acadia Parish. The truck's owner, Oilfield Heavy Haulers, LLC (OHH), had leased the truck to Ace Transportation Co. Ace's employee, David Vincent, was driving the truck at the time that its oversized load collided with and damaged the overpass. On May 21, 2010, Ace filed a motion for dismissal asserting that no step had been timely taken in the prosecution or defense of the action for a period of three years since March 15, 2007; therefore, the suit had been abandoned and should be dismissed. The trial court signed an order of dimissal on May 24, 2010. On June 18, 2010, DOTD filed a motion to set aside the dismissal, which resulted in a hearing on September 27, 2010. The trial court refused to overturn the dismissal, and DOTD appealed, arguing that two actions taken in 2007 demonstrated that the suit had not been abandoned. First, on April 24, 2007, counsel for OHH scheduled a discovery conference and notified all parties. Then, on May 10, 2007, DOTD sent discovery responses to OHH. DOTD relied on La. Code Civ. P. Art. 561(B), which provides that “[a]ny formal discovery ... served on all parties ... shall be deemed to be a step in the prosecution or defense of an action.” The court disagreed on both points. It reasoned that the scheduling of the discovery conference, which was necessary because of the DOTD's delinquency in responding to OHH's discovery requests and was accomplished via letter between the parties' attorneys, was an "extrajudicial effort." As such, it was not “formal discovery” sufficient to constitute a “step in the prosecution of the action" under the Code. With regard to the second point, DOTD admitted that it “inadvertently failed to send a copy of its formal responses to counsel for the remaining defendants [other than OHH].” Accordingly, the court held that "the discovery responses were not sufficient to interrupt abandonment given the lack of service on all parties." It therefore affirmed the judgment of the trial court denying the DOTD's motion to set aside the order of dismissal.

On appeal, the DOTD characterized the trial court's ruling as an overly "strict and rigid interpretation” of the Code. Still, the court of appeal found that the "express requirements of the [Code] article itself and the jurisprudence interpreting" it mandated the trial court's--and its own--conclusion. The complexity of the Code reveals the importance of a plaintiff's retaining an experienced and skilled attorney who can confidently navigate the waters of litigation. Here, the DOTD lost the chance to recover for the damage to the I-10 overpass due to a procedural error--one that could have been avoided by closer attention to the Code and its requirements.

Continue reading "DODT Learns Abandonment Lesson the Hard Way in Acadia Parish Highway Accident" »

The plaintiff in this case, Eileen Laday, was a passenger on a bus owned by the Lafayette City-Parish Consolidated Government. The bus had been donated to the City-Parish in the aftermath of Hurricane Katrina. When the bus was donated, it was missing a plexiglass shield that was designed to keep the bus door from coming into contact with passengers. As Ms. Laday sat in the front seat, the door opened and trapped her arm. She was not consistent about how long her arm was trapped.

Ms. Laday went to a doctor the next day, complaining of neck and shoulder pain radiating into her right arm. The doctor ordered an MRI, which showed degenerative cervical disc conditions as well as a disc herniation. She later saw an orthopedic surgeon, who recommended that she undergo surgery. As of the date of trial, she had not yet had the surgery, which was estimated to cost between $60,492.60 and $61,492.60.

The judge conducted a bench trial (where there is no jury) and ruled in favor of Ms. Laday because of the high standard of care imposed on common carries like operators of public buses. He awarded her $60,000 in general damages, $24,084.56 in past medical expenses, and $60,492.60 for future surgery costs to be placed into a reversionary trust under La.R.S. 13:5106, with interest to go to Ms. Laday.

Lafayette City-Parish appealed, claiming that the trial court was clearly wrong in believing Ms. Laday over its expert, who testified that the claimed contact between the bus door and Ms. Laday’s arm was a possible, but not probable, cause of the disc herniation. It also claimed that the court should have put the interest on the award for future medical expenses into the reversionary trust rather than giving it to Ms. Laday.

Ms. Laday, on the other hand, thought that the amount of general damages and medical expenses were abusively low, given that there were additional future medical expenses proven at trial, including follow-up visits for a year.

The Third Circuit Court of Appeal for the State of Louisiana considered the purpose of La.R.S. 13:5106, which was to assure that money for subsequent medical care was paid directly to a medical care provider because judgments against public entities have amounted to more than those entities are able to pay. The use of a reversionary trust ensures that a plaintiff will not take the money and use it for something else other than medical treatment. Considering the purpose of reversionary trusts, the appellate court ruled that any interest that accrued should also go into the trust rather than being paid out to the plaintiff.

The Third Circuit also found that there were follow-up medical appointments needed after the surgery, which the plaintiff had proven but the trial judge did not take into account when awarding future medical damages. The appellate court added those amounts back in, making the total amount $62,288.00 that should go into the trust.

Ms. Laday was ultimately awarded a higher amount for future medical expenses, but the money, along with the interest that would accrue on that money, would be placed in a trust to be paid directly to a doctor or other medical professional providing treatment. As a result of this award, she was able to pay for the back surgery she needed.

If you have been injured while riding on public transportation, you may be eligible for compensation from the operator of the vehicle.

Continue reading "Lafayette City-Parish Consolidated Government Ordered to Pay Damages, Costs to Injured Bus Passenger" »

In a prior post, we saw that the trial court is afforded considerable deference in the setting the amount of general damages in tort cases. More than 30 years ago, the Louisiana Supreme Court stated:

"[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration." Reck v. Stevens.

The Court went on to advise that an appellate court's primary role is to determine whether a trial court's general damages award amounted to an abuse of discretion. Only if such abuse is found is it appropriate for the appellate court to review prior judicial opinions to determine a range of amounts reasonably applicable in the case.

Against this formidable body of jurisprudence did the plaintiffs in the recent case of Andrus v. ACCC Insurance Co. appeal the trial court's award of general damages. On March 12, 2009, Terrence Andrus and Joseph Davis were driving on La. Highway 167 in St. Landry Parish. Jeri Ceasor rear-ended Andrus's car, after which Andrus and Davis, ("Plaintiffs") filed a suit for damages for injuries and property damage. The trial court found Ceasor to be at fault in the accident and awarded Plaintiffs general damages in the amount
of $1,500.00 each. The court also awarded the Plaintiffs special damages for medical costs in the amount of roughly $3,000 each. The Plaintiffs appealed the general damages award as "inadequate" for the Plaintiffs' "soft tissue" injuries that they sustained in the accident.

The Third Circuit Court of Appeal noted that "the evidence of record shows that the damage to the Andrus vehicle was minor," only "scratches and paint damage," and no deformity to the bumper. Both Plaintiffs complained of back pain following the accident, but for each it was only "minor" or, in the case of Davis, more "tightness" than pain. Both Plaintiffs were completely healed within three months after a series of chiropractic visits. During the trial, Andrus testified that the collision was just "a little jerk," while Davis characterized it as "nothing big." The court concluded, "we cannot say that an award of $1,500.00 in general damages to each of the Plaintiffs falls below 'that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances,'" and affirmed the trial court's award.

This case clearly reflects the view of the Louisiana Supreme Court that "an appellate court should rarely disturb an award of general damages." Indeed, the Plaintiffs pointed to no obvious reason by which the appellate court could conclude that the trial court's award was unreasonable. In the end, the Plaintiffs' appeal left them with an assessment of the costs of the action. While it is understandable for an injured plaintiff to want to maximize his recovery, a skilled attorney who understands the limits of the appellate court's role in adjusting damages can offer invaluable strategic guidance about whether to file an appeal.

Continue reading "Appellate Court Affirms Small General Damages Award in Minor St. Landry Parish Accident" »

In previous posts on this blog, we have discussed the elements that the victim of a car accident must prove in order to recover from an at-fault driver. Whether the defendant's negligent conduct caused the accident and the victim's injuries is a question to be resolved by the fact-finder. This role is usually assumed by the jury, but can also be left to the judge in the case of a bench trial. Much deference is given to a fact-finder's decision on such issues: the appropriate standard for appellate review of factual determinations is the "manifest error/clearly wrong standard." This high standard means that an appellate court can set aside the trial court's factual determination only if it is "clearly wrong in light of the record reviewed in its entirety." In order to overturn a factual finding, the appellate court must make a two-part inquiry: (1) the court must find from a review of the trial record that no reasonable factual basis exists for the finding; and (2) the record must establish that the trial court's finding was clearly wrong. It is important to note that the appellate court is not merely asked to determine whether the trier of fact was objectively right or wrong; instead the court must decide if the factfinder’s conclusion was reasonable in light of the evidence. The Second Circuit Court of Appeal's opinion in the recent case of Hopkins v. Nola provides an example of an appellate court's application of this analysis to overturn a critical factual finding of the trial court.

On January 17, 2008, Sharnetta Hopkins was involved in a car accident with Brian Nola near the intersection of Desoto Street and Cole Avenue in Monroe, Louisiana. In her complaint, Hopkins alleged that the accident occurred when Nola struck her car after executing an illegal pass. Nola countered that he did nothing wrong, but was actually struck by Hopkins's car when she ran a stop sign. At the bench trial in March, 2010, the parties offered conflicting testimony on the incident. Also, Shawn Maynard, an officer with the Monroe Police Department who responded to the accident and issued Hopkins a citation for running the stop sign, offered testimony as to Hopkins's fault. Nevertheless, the trial court entered a judgment against Nola, awarding Hopkins damages after apportioning 80 percent of the fault to Nola. In its decision, the trial court noted that it effectively ignored Officer Maynard's testimony because he "did not take any photographs, diagram the location of any debris from the accident, and did not talk to all of the witnesses."

On appeal taken by Nola, the Second Circuit reviewed the trial record according to the manifest error standard. The court found that "the trial court committed reversible error in its wholesale dismissal of Officer Maynard’s testimony due to deficiencies in his investigation of the accident." The court reached this conclusion because "the trial court’s articulation in its written ruling of perceived deficiencies is unfounded."
Officer Maynard testified with reference to photos of the accident scene in a manner that was consistent with the accident report he filed immediately following his investigation. Hopkins "did not attempt to offer the written report or cross-examine the officer directly on its contents to show that his memory of the accident at trial differed from the report," or for that matter impugn Maynard's credibility in any way. Additionally, the trial court did not indicate its dismissal of Officer Maynard’s testimony was the result of a credibility assessment based on a finding of bias or untruthfulness. In fact, the evidence clearly supported Maynard's assessment of the situation but was inconsistent with Hopkins's summary of events. Accordingly, the court found that "the objective evidence so contradicts [Hopkins's] story that a reasonable factfinder would not credit that story. The ruling of the trial court was therefore clearly wrong and manifestly erroneous."

The Hopkins case speaks to the critical nature of a plaintiff's ability to establish facts that are consistent with her theory of recovery. As the Second Circuit noted in its opinion,

"Although deference to the factfinder should be accorded, because appellate courts have a constitutional duty to review both law and facts, they have the right and obligation to determine whether a trial court verdict is clearly wrong based on evidence, or clearly without evidentiary support... Therefore, it is not the case that a trial court’s factual determinations cannot ever, or hardly ever, be upset.”

Thus, the court makes clear that findings of fact must be supported by solid evidence in order to survive challenge on appeal. If you have been injured due to someone's negligence, it is essential to seek a qualified attorney who is experienced at building the most favorable case possible based on the actual evidence to be presented at trial.

Continue reading "Appellate Court Reverses Factually Unsupported Judgment in Car Wreck Case" »

The tort law system is designed to make whole those who have been injured. Since medical science is both an imperfect art and an imperfect science, money is most often the cure for what ails plaintiffs. In each case the jury must decide how much money it takes to remedy the injury the victim suffered? This gets further complicated when considering someone who suffers and will suffer from a permanent condition brought on by another. The issue of damages is strongly linked with the issue of causation. The courts seek to compensate plaintiffs for all of the monetary loss they suffer at the hands of those found liable (those who are found legally responsible). An important aspect of liability is the determination that a wrongdoer was the proximate or legal cause of a plaintiffs injury.

Pain is a somewhat subjective part of the human experience. Torts professors sometimes joke that there is no "Pain-o-meter" for measuring how much something hurts. In our civil justice system, the awarding and amount of pain and suffering awards are a matter for the fact finder. This means that the decision about how much to compensate someone for their pain is often left to a jury of their peers. This is often a difficult decision for jurors to make, especially considering the subjectivity of pain.

Doctors use a chart with a series of faces ranging from one that seems to express mild discomfort to one that has tears dripping down it to figure out how much pain a person is in. That is the height of the technology used to measure pain. Juries are often called upon to answer the question oh what value each of these bring, not for themselves, but for some other injured person. It is the job of the plaintiff's attorney to call for an appropriate standard when compensating for pain. The standards used vary by location. Pain and suffering make up just one piece of an injured person's damages. Juries must also account for lost wages, future wages, medical expense and future medical expenses, among other potential costs.

How much pain is worth $2,654,249.99? That number represents what a judge, in lieu of a jury, granted Ms. Kristin Davis after two corporate defendants and an individual were found liable for her injuries. The trial judge's award contemplated past medical damage, car rental, past lost wages, future lost wages, past household expenses, future household expenses and future medical expenses. The Court of Appeal for the Second Circuit of Louisiana reduced the initial award by a total of $1,782,948. Ms. Davis' award was reduced in part because she failed to prove, in the opinion of the defendants and the Court of Appeal, that she was actually disabled in a way that prevented her from participating in any occupation. The allegation that the accident was caused by the defendant and that these injuries were caused by the accident would both have to be proven beyond a preponderance of the evidence. This means that the fact finder would have to determine that it was more likely than not the injuries were the result of the defendant's negligence.

It was the determination of the Court of Appeal that Ms. Davis did not prove that her alleged future needs beyond a preponderance of the evidence. The court reversed the trial court's findings on these expenses and affirmed a reduced award in the other areas.

Continue reading "No Future Expenses Awards for Ouachita Woman Who Suffered Injuries in Accident" »

The plaintiffs in this case are the family of Cody Ebarb, a 12-year-old boy who suffered a stroke and subsequently died after receiving care from various doctors at Willis Knighton Medical Center in Shreveport-Bossier City, Louisiana. Cody suffered from several pre-existing medical problems, including a viral chronic fatigue syndrome, suspected disease of the connective tissue, and herpes virus of the eye. He had spent much time in medical treatment and was, sadly, a very sick child for much of his life.

On the morning of November 5, while on his way to the pediatrician, Cody suddenly said that he couldn’t see and fell to the floor, moaning. He was transported by EMTs to Willis-Knighton South, and they noted only that he was having seizures. It turned out that he had actually had a stroke due to a small tear in his basilar artery (which is surrounded by the spine).

Dr. Felty, an emergency room physician, performed a basic emergency exam and ran a batter of standard tests. He did not perform a full neurological exam because Cody could not communicate and was moving involuntarily. He also did not order an MRI because subspecialists, not ER physicians, normally do so. While at the hospital, Cody could not open his eyes or speak, but at some point was aware of his surroundings. Eventually, at approximately 2 pm, a pediatrician arrived, ordered Ativan (a widely used sedative and anticonvulsant) and left. Between the hours of 2 pm and 6:30 pm, several doctors examined Cody, who by then had deteriorated and was unable to move his arms or communicate. He was then transferred into the Intensive Care Unit (ICU). During his night in the ICU, Cody went into cardiac arrest and was placed on life support. While on life support, an MRI was taken that showed a very rare torn basilar artery, which resulted in a stroke.

A medical review panel unanimously found that the doctors did not breach the standard of care due to t he complicated nature of the case.

A medical malpractice case is not about hindsight, asking if there was anything the doctors could possibly have done to save someone’s life. Rather, it is about determining whether Cody’s doctors breached the standard of care that doctors are required to abide by. In order to prove that the doctors in this case were medically negligent, the plaintiffs had to prove: 1) a duty of care owed by the health care provider to Cody; 2) breach of that duty by failure to abide by the appropriate standard of care; 3) a causal connection between the breach and the patient’s injury or death; and 4) damages.

It is clear that the doctors owed a duty of care to Cody, who was their patient. At trial, the plaintiffs’ expert and the defense expert strongly disagreed about what the standard of care was and whether the doctors had breached it. The plaintiffs’ experts thought that Dr. Felty should have ordered an MRI right away, which might have shown the torn artery. They also strongly criticized the doctors for keeping incomplete charts. Torn basilar arteries are not always fatal, but do have a high mortality rate. On the other hand, the defense expert testified that by the time Cody arrived in the ER, it was already too late. She also testified that ER doctors do not normally order MRIs and in any event it would have been difficult with an involuntarily moving child. Another defense expert thought that even an early MRI could not have saved Cody.

The jury found that the doctors did not cause Cody’s death. Additionally, causation was difficult for the plaintiffs to prove because no autopsy was performed.

The court noted that the lack of documentation and the fact that Cody lay in the emergency room for four hours even after he had been ordered to be transferred to the ICU were cause for concern, but the jury appeared to have accepted the doctors’ trial testimony and a court is not allowed to re-weigh credibility. Therefore, the Second Circuit Court of Appeal for the State of Louisiana upheld the jury verdict.

Continue reading "Caddo Parish Jury Finds Doctors Not Liable in Medical Malpractice Case; Verdict Upheld " »

The plaintiff in this case, Suzanne Hammond, was the mother of Latousha Tillman and the grandmother of her stillborn child, Ladaizya Tillman. On March 31, 2004, Ms. Tillman arrived at the St. Francis Hospital emergency room complaining of pain, nausea, and vomiting. She was 25 years old and 23 weeks pregnant. Dr. Joiner treated her and found her heart rate, liver enzymes, and glucose to be elevated, with decreased kidney function. Ms. Tillman was then transferred to another hospital, where problems with her unborn child were discovered. The fetus was found to have no heartbeat and labor was induced 3 days later, on April 4, 2004.

After the birth, Ms. Tillman’s condition dramatically declined and she was placed on life support. She then went into a persistent vegetative state and was pronounced dead on January 24, 2005, after the medical staff was unable to resuscitate her. Ms. Hammond sued St. Francis and Dr. Joiner for a survival action and a wrongful death action with regard to her daughter, and a wrongful death lawsuit as to her stillborn granddaughter.

A survival action compensates the survivors for the damages suffered by a victim from the time of injury to the moment of his or her death. The cause of action is “inherited” – it belongs to the victim and is passed on at death. If there is even a tiny amount of evidence showing any pain of suffering by a victim before her death, damages are warranted.

A wrongful death action, on the other hand, compensates the beneficiaries, usually family members, for their own injuries which they suffer from the moment of the victim’s death on. The wrongful death action belongs to the survivors (in this case, Ms. Hammond), not the victim.

On January 20, 2006, Ms. Hammond filed a request for a medical review panel, alleging that St. Francis Hospital and Dr. Joiner had committed negligence. This was more than a year from the death of the stillborn child and more than a year after Dr. Joiner last treated Ms. Tillman. Under LSA-R.S. 9:5628, a plaintiff may bring a medical malpractice action within one year from the date of the alleged act or one year from the date of discovery, with a three-year total limit.

With respect to the survival claim as to Ms. Tillman, the trial court found that the claim had prescribed, that is, Ms. Hammond filed her claim too late. Article 3492 of LSA-C.C. clearly states that prescription runs against people who are absent or incompetent, including minors and interdicts (those who have been ruled incompetent to care for themselves). There is an exception for products liability cases, but that exception did not apply here.

Ms. Hammond tried to argue that the three-year limit applied, but did not show in the court-filed pleadings that there was some reason for her not to file within the one-year limit. Instead, she should have filed any survival action for Ms. Tillman within a year of the date of discovery of the malpractice, and any wrongful death action for the stillborn child within a year of the child’s death on April 1, 2004. It is the plaintiff’s burden to show that the time limits have not run, and in this case, Ms. Hammond did not state the date of discovery. Therefore, the survival claim with regard to Ms. Tillman and the wrongful death claim with regard to the stillborn child were dismissed.

The wrongful death action with regard to Ms. Tillman had not prescribed, however, because it arose on January 24, 2005, at Ms. Tillman’s death, and Ms. Hammond filed for a medical review panel on January 20, 2006. The case was affirmed and remanded for the wrongful death action with regard to Ms. Tillman to go forward.

Continue reading "Prescription Runs on Ouachita Parish Medical Malpractice and Wrongful Death Survival Action Claim" »

Louisiana law requires all motor vehicle liability insurance policies to extend coverage not only to the insured, but also to any other person with express or implied permission to drive the motor vehicle. Once the insured gives permission, coverage will be denied only if the driver deviates from the permissive use. Consequently, at issue in most lawsuits of this kind is whether the damages caused by the driver are covered by the policy.

A recent case involved Ellen Van, who was driving her car on McReight Street in the city of Bastrop on the same day that minor April Canada was driving a truck owned by the defendant, Steven Ferrell, her live-in boyfriend. April allegedly failed to stop at an intersection and collided with the Van's vehicle. Ellen and her husband, claiming that the collision caused injuries to her back and body, filed suit against Steven Ferrel and his insurer, Safeway Insurance Company of Louisiana. In Ellen T. Van and Ralph E. Van v. Steven Ferrell and Safeway Ins. Co., the lower court granted Safeway's motion for summary judgment on the basis of the affirmative defense of nonpermissive use. Safeway contended that April did not have permission to use the truck on the day in question, and, therefore, the damages caused by the accident were not covered by the policy.

On appeal, the plaintiffs challenged the lower court's determination that there was no genuine issue of material fact in the case. Specifically, the plaintiffs contested that April's implied permission from Ferrell to drive the truck on the day of the accident was an unresolved, material issue in the case. The Louisiana Second Circuit Court of Appeals, agreeing with the plaintiffs, reversed and remanded the lower court's judgment because the deposition testimony established that an issue remained in the case as to whether April had implied permission to drive Ferrell's truck.

Although Ferrell stated April did not have express permission to drive the truck, he conceded at the deposition that the keys and truck were at the house, which were readily accessible to April, and that he never explicitly told April she did not have permission to drive the truck. Moreover, Ferrell's mother Tracy, who also lived at the home, testified that April had occasionally driven the truck unaccompanied; however, she later stated that April only drove the truck with her or another licensed driver. Most significantly, April testified that she drove Ferrell's truck many times around the area where they lived with Ferrell and Tracy's permission. April further testified that since Tracy and Ferrell knew she had to report to work the day of the accident, she believed she had permission to drive the truck to town.

According to the appellate court, the trial court needed to resolve the credibility of the parties' accounts due to the inconsistent deposition testimony. Since a trial is the only appropriate legal forum to resolve issues in a case dependent on credibility determinations, the appellate court concluded that summary judgment was improper.

As this case demonstrates, it is important to have competent representation to successfully appeal an unfavorable judgment. The ability to challenge the court's rulings and force the proper judicial process is something a plaintiff, or defendant, needs to feel confident their attorney can handle.

Continue reading "Court of Appeals Rejects Insurance Company's Defense of Nonpermissive Use in Recent Case " »

From the Courts of Equity of the England of yore to Louisiana's Third Circuit, fairness is and has been for a long time an essential component of the law. Civil concepts of fairness still exist today, especially in Louisiana courts dedicated to making whole the victim of a crime.

Edward Signal, like many injury victims, acquired the right to sue at the time of his injury. This right is a commodity of sorts and can be bargained away in an agreement known as a release. Mr. Signal signed one of these agreements with BellSouth Telecommunications after a BellSouth employee, Jared Romero, struck Mr. Signal's vehicle on the on-ramp of Highway 90 from Willow Street in Lafayette. Mr. Signal received a check from BellSouth for the exact amount of the damage to his car. When he cashed this check, he failed to consider an important phrase in the letter that accompanied it. BellSouth indicated that this check was intended to be a "full and final settlement of [Mr. Signal's] claim." There was also language on the back of the check that indicated the check was for "property damages and/or bodily injury." After cashing the check, Mr. Signal discovered the check to not fully cover his damages and filed suit in this matter. In response, BellSouth raised the affirmative defense of res judicata claiming that Mr. Signal's claim was already settled.

The trial court determined that Mr. Signal, a 73-year-old man with a self-assessed third grade reading level, was not quite on even footing with the more sophisticated corporate defendant. In so concluding, the trial court found that Mr. Signal's behavior was reasonable. A reasonable man in his situation would assume that a check for the amount of damage to his car would not also be intended to cover personal damages. The State of Louisiana Court of Appeal, Third Circuit affirmed Mr. Signal's right to sue BellSouth for damages arising out of his personal injuries.

There were two essential values at stake in this case: 1) freedom of contract and 2) fairness. The corporate defendant, obviously having more resources and knowledge, was attempting to escape the full extent of its vicarious liability for the actions of its employee while on the job. Would this case have turned out the same if Mr. Signal were a corporate lawyer with a rich knowledge of the law surrounding contracts of adhesion and alternative dispute resolution? Probably not. Should it have? Fairness dictates that the outcome probably should be different.

Releases are an essential mechanism for both plaintiffs and defendants. They offer a kind of safety net for parties on each side of a dispute. A plaintiff exchanges his or her right to sue for the guarantee of some compensation while a defendant receives exemption from suit in exchange for a smaller payout. Both parties benefit if a fair bargain is struck. If one party is of considerably disparate sophistication, as was the case of Mr. Signal, then there is a fundamental, almost extreme aversion to such an agreement.

A potential plaintiff is fully capable of essentially selling his right to sue but should not be tricked by a potential defendant that outclasses him or her in almost all relevant parameters. This is a noble position summarized extremely poignantly by the trial court in this case. The court said flatly that "this is not acceptable to the Court" when referring to BellSouth apparently trying to take advantage of Mr. Signal's plight. This court and the Court of Appeal, Third Circuit struck a blow for fairness in reaching these conclusions. Decisions like this one and those cited within it enshrine a sense of fair play and justice that help protect future victims from unfair business practices.

Continue reading "Successful Appeal for Fairness in Iberia Parish Car Accident Payment" »

When a caller dials 911 to report an emergency, it is not uncommon for the operator to transfer the caller to the local service provider that is best suited to respond to the incident. For instance, a caller who reports an auto accident can expect to be connected with the nearest ambulance service. In the case of Willis v. Rapides Parish Communications District, the Third Circuit Court of Appeal examined the duty owed by an ambulance dispatcher when a transfer does not go through.

Johnny Willis was involved in a single-car accident on La. Hwy. 488 just outside of Oak Hill. The crash was discovered by a passer-by, Shirley Ponthieux, who called 911. The operator for the Rapides Parish Communications District (RPCD) answered her call, contacted the fire department, and then attempted to transfer her directly to Acadian Ambulance because of another incoming call. The operator did not think that taking the other call would affect the transfer, but in fact it failed and Ponthieux was cut off. Because of the phone confusion and because the fire department could not obtain a cellular signal to call Acadia Ambulance when it arrived on the scene, an ambulance did not arrive until approximately an hour later. Sadly, Mr. Willis died at the hospital. His wife, Carleen Willis, filed suit against RPCD and Acadian Ambulance. Her claim against Acadian cited its failure to "receive and respond to the emergency transmission" and that it "failed to establish and utilize a reliable communications system for the receipt of emergency transmissions." The trial judge granted Acadian Ambulance’s motion for summary judgment, holding that it does not owe a duty to an accident victim until it actually receives a call requesting ambulance service.

On appeal, Willis argued that Acadian Ambulance owed a duty to her husband to properly advise the RPCD of how to communicate with its dispatcher. Further, she cited a letter that Acadian had previously sent to the 911 office in Rankin County, Mississippi that explained the procedures that the 911 operators were to follow. Namely, an operator should remain on the line until Acadian Ambulance answered the call in order for the transfer to be completed, and further should briefly inform the Acadian Ambulance dispatcher of the nature of the call before disconnecting. The court disagreed that the lack of a similar letter to RPCD indicated Acadian's failure to exercise reasonable care. In fact, the court could point to "no statutory or jurisprudential principles that support the imposition of [a] duty" on Acadian Ambulance "to properly train the employees of the RPCD in the use of the RPCD equipment to communicate with Acadian Ambulance." Imposing such a duty, in the view of the court, would be inappropriate under the duty-risk analysis favored by the Louisiana Supreme Court. As soon as the Acadian dispatcher actually received a call that an ambulance was needed, he promptly sent one; this met the duty imposed under the law. Accordingly, the court affirmed the trial court's dismissal of Acadian Ambulance from the case.

As this appeal was taken following the trial court's dismissal of Acadian Ambulance from the case, it is not clear what resulted from her action against RPCD which presumably continued following this judgment. The court's decision to affirm the dismissal of Acadian Ambulance illustrates the flexibility of law to determine liability when speculation exists and demonstrates just how complex and difficult civil trials can be for plaintiffs and defendants alike.

Continue reading "Court Clarifies Duty of Ambulance Dispatcher in Dropped 911 Call" »

The term "venue" refers to the particular court where a plaintiff should file his suit. In the case of car accidents and other tort actions, the Louisiana Code of Civil Procedure gives the plaintiff a choice of venue. The plaintiff can file the suit in the parish where the accident occurred or, alternatively, in the parish where the defendant driver resides. When a liability insurer is involved as a defendant, the suit can also be filed in the parish where the insurance company is registered. The case of Lopez v. Richard illustrates how the misapplication of the venue rules can have serious, undesirable consequences for a plaintiff.

On March 31, 2006, Gil Lopez was rear-ended by another driver in Lafayette Parish. The driver was Josette Richard, a resident of Lafayette Parish who was insured by Allstate. On the last day of the one-year prescriptive period (April 2, 2007), Lopez filed suit in Iberia Parish, which is the parish where he and his wife live. Richard and Allstate filed an exception for improper venue, and the parties agreed to transfer the case to Lafayette Parish in August of 2007. Once the case was transferred, Richard and Allstate filed an exception of prescription, arguing that Lopez's action was not properly filed before the expiration of the prescription period. The Third Circuit agreed, stating that "it is well settled that the transfer of an action to a correct venue, after prescription has run, does not resurrect the plaintiff’s lawsuit." In an attempt to preserve his cause of action, Lopez offered the novel argument that venue in his home parish was proper under the state's "joint obligor" statute. That is, Lopez argued that because he was a beneficiary under Richard's Allstate policy, he was also an "insured" under the terms of the policy which provided Allstate's connection to Iberia Parish and permitted suit there. The court deemed this theory a misapplication of the law which was intended for suits involving Uninsured Motorist coverage, but not a direct policy such as the one Allstate had issued to Richard. Instead, Lopez is merely a "claimant" who will "be paid by Allstate on behalf of their insured, Richard, if Richard is found liable" for the accident. Thus, because Lopez filed his suit in the wrong parish and did not transfer it to a proper parish before the running of the prescription period, his case was dismissed.

The lesson from the Lopez case is that proper venue should be identified as early as possible to ensure that the prescriptive period does not expire before the suit can be filed in the correct court. Misfiling a suit does not toll the running of the period. Had Lopez not waited until the very last minute to file his original suit, he may have been able to transfer to the correct venue and avoid losing his case on a mere (but critically important) technicality.

Continue reading "Poor Choice of Venue Following Auto Accident in Lafayette Parish Leads to Dismissal of Suit" »

As discussed previously on this blog, the primary duty of Louisiana's Department of Transportation and Development (DOTD) is to maintain the public roadways in a condition that is reasonably safe and which does not present an unreasonable risk of harm to motorists who exercise ordinary care. As outlined in this recent post, a plaintiff must prove the following elements in order to hold the DOTD liable for damages arising from an accident on the roadway: (1) that the condition that caused the damage was in DOTD's control; (2) that the condition amounted to a defect that presented an unreasonable risk of harm; and (3) that the DOTD was aware or should have been aware that the defect existed. In addressing the extent of the risk of harm, litigants often rely on the standards established by the American Association of State Highway and Transportation Officials ("AASHTO") which, while not mandatory in Louisiana, offer a point of reference for whether DOTD's design of a particular roadway presented an unreasonable risk. The AASHTO's standards have evolved over time, however, and in many cases they have become stricter and more elaborate as vehicular traffic volume has increased. In light of this, the Louisiana Supreme Court has held that DOTD does not have duty to bring old highways up to modern standards unless a major reconstruction of the highway is undertaken. The question of what qualifies as a "major reconstruction" was at the center of the recent case in the First Circuit Court of Appeal, Davis v. Travelers Property Casualty Insurance Co.

On the evening of April 22, 2003 Nathaniel Davis, a flatbed truck driver for the Purpera Lumber Company, legally parked his truck in the northbound lane of La. Hwy. 308 so he could deliver a load of lumber to a residential construction site adjacent to the highway. Davis parked in the travel lane because there was no driveway at the site that would accommodate his truck and because the road, which was maintained by DOTD, had no shoulder. Davis was severely injured when his truck was rear-ended by an elderly driver who made no attempt to slow down before she collided with the truck. Davis filed suit naming DOTD as a defendant. His theory of recovery was based on the road's lack of a shoulder, a deisgn which violated the then-current AASHTO standards requiring an eight-foot extension of the highway. Presumably, the shoulder would have offered a safer location for parking his truck. Ultimately, the First Circuit reviewed a verdict in the trial court in which the jury determined that the lack of a shoulder posed an unreasonably dangerous risk to Davis. However, the jury also found that DOTD did not know (and had no duty to have known) about this condition and thereofre had no duty to cure the defect by constructing a shoulder. Davis argued that a resurfacing project undertaken by the DOTD some years prior to the accident qualified as "major reconstruction" which put DOTD on notice of its duty to upgrade the roadway to include a shoulder. The First Circuit court disagreed, noting that "there is no evidence from which to conclude that the roadway underwent a major reconstruction at that location or even that the State had obtained additional rights of way [necessary for such significant work] in the area of the accident site." Accordingly, the court affirmed the jury's verdict in favor of DOTD.

This is another example in a long line of cases that demonstrates the challenge of winning a claim against DOTD under an ordinary negligence theory. The Louisiana legislature and courts have made clear that DOTD is not the "guarantor for the safety of all of the motoring public [n]or the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway." As a result, an injured plaintiff must have a skilled attorney who understands the nature of DOTD's responsibilities to those who use the highways.

Continue reading "Court Examines DOTD Liability for Lack of Road Shoulder in Ascension Parish Auto Accident" »

The primary duty of the Louisiana Department of Transportation and Development (DOTD) is to "continually maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence." In a recent post, we explored the elements that a plaintiff must prove in order to find the DOTD liable for damages arising out of a highway accident. By placing this burden on a plaintiff, state law attempts to balance the need for roadway safety with the countervailing requirement that DOTD not become "the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway." The case of Schysm v. Boyd offers an interesting example of a jury's misapplication of this balancing test.

On February 22, 2003, Douglas Schysm visited the Isle of Capri Casino in Vicksburg, Mississippi. After consuming three beers, he left the casino around 1:00 a.m. and drove his truck into Madison Parish, Louisiana on I-20. Just outside of the community of Delta, Schysm's truck collided with a horse which, after wandering into the roadway, had just been struck by another car and which lay in the right lane. Schysm's truck shot into the air and landed upside-down next to a guardrail approximately 245 feet beyond the point of impact. Schysm suffered significant injuries as a result of the crash, including broken bones and nerve damage. He sued the owner of the horse, the owners of the property adjacent to I-20 where the horse was kept, and DOTD for damages related to the incident. Schysm argued that the DOTD failed to inspect and maintain a fence along I-20, allowed the fence to be cut for easier (but illegal) vehicle access, and failed to warn drivers that the cut in the fence would allow animals to roam onto the highway. After a trial, the jury assigned 50 percent fault to DOTD, 30 percent to the owner of the horse, and 20 percent to Schysm. It also awarded Schysm damages totaling $884,062. DOTD appealed, disputing any fault.

The Second Circuit reviewed the trial record for the evidence relating to two areas adjoining I-20 where DOTD either did not maintain a fence or did not build one in the first place. The area closest to the horse's pen and where it most likely entered the highway was separated from the road by a fence; however, this fence had been cut by local motorists who used the path as a short-cut to access I-20. The other area apparently never had a fence at all. At trial, the parties offered expert witnesses who referenced the design guidelines published by the American Association of State Highway and Transportation Officials ("AASHTO") which establish fencing recommendations for lands adjacent to interstate highways. The experts disagreed about which version of the guidelines applied in the case, and further about whether fencing was recommended at all due to the particular construction method of the highway near the point of impact. DOTD's witness, with whom the Second Circuit ultimately sided, explained that the purpose of the fencing along I-20 was "to control vehicular access, not to keep livestock off the Interstate." Furthermore, "there was no duty under the 2001 AASHTO guidelines to have a fence along I-20." The court found that if even if DOTD had a duty to construct fencing along the highway, it was only to restrict vehicle access to and from the interstate; "it was not intended to prevent a horse that had escaped from its pen from entering upon I-20." The court observed that the horse's pen was "not adjacent to I-20... In order to reach I-20, [the horse] had to cross a ditch, a gravel road, a paved road, and a grassy area. No unreasonable risk of harm was created for motorists under these circumstances by DOTD's failure to maintain or erect a right-of-way fence in this stretch of I-20." In light of the additional fact that there was no history of animals wandering onto the roadway in the area, the court concluded that the jury was "clearly wrong" in finding that DOTD was in any way at fault for Schysm's collision.

This case reflects the reality that, although the DOTD is obligated to take reasonable steps to create and maintain a safe roadway, the obligation does not extend to exceedingly burdensome or overly expensive measures. Given that DOTD is responsible for maintaining over 16,705 miles of roadway and 894 miles of interstate in Louisiana, it is understandable that the department must apply its limited funds in a way that benefits the largest number of Louisiana motorists possible. Clearly, it is not feasible to build fencing along every mile of highway in the state. Still, DOTD is held accountable for any failures to do what is reasonable to protect the traveling public.

Continue reading "Second Circuit Rejects Jury's Assessment of DOTD's Liability in Madison Parish Highway Accident" »

The Third Circuit Court of Appeal for the State of Louisiana affirmed a Calcasieu Parish court’s decision to grant the defendants’ motions for summary judgment and dismissal of the plaintiff’s claims for injuries she sustained when her electric grocery cart allegedly malfunctioned while she was grocery shopping.

In considering a motion for summary judgment, a judge must consider whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Because the moving parties here (the defendants) did not have the burden of proof at trial, they merely needed to show that there was an absence of factual support for at least one of the elements of the plaintiff’s claim. This is a question of law and is reviewed by an appellate court de novo, without any deference to the trial court.

The plaintiff in this case was a 73-year-old woman who used a motorized cart called the Mart Cart, provided by Kroger. She alleged that in order to reach a can from a shelf, she dismounted the Mart Cart and put her left foot on the ground, but while she had one foot on the cart and another on the ground, the cart rolled forward, causing her to fall. She filed suit against Kroger and the manufacturer of the Mart Cart, alleging that they were liable for her injuries under the Louisiana Products Liability Act (the LPLA).

Specifically, the plaintiff’s claim was governed by La. R.S. 9:2800.6, paragraph B. In order to succeed on the merits of the claim, the plaintiff had to prove that (1) the condition existing in or on Kroger’s premises presented an unreasonable risk of harm and that risk was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and (3) the merchant failed to exercise reasonable care. Constructive notice means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

Immediately after the accident, the manager at Kroger’s tested the cart’s brakes and did not find any problems. The day after, he sent the cart to Kroger’s mechanic, who also found no safety hazards. The plaintiff’s case was dismissed in part because she was unable to present any evidence to the contrary that the cart presented an unreasonable risk of harm. Her own expert, who also evaluated the cart, was only able to suggest the potential for an unreasonable risk of harm and his statements did not rise to the level of creating a genuine issue of material fact. She was also unable to show that Kroger had actual or constructive notice that the cart posed an unreasonable risk of harm.

The plaintiff also sued under a products liability theory, laid out in the LPLA at La.R.S. 9:2800.51 et seq. The burden was on the plaintiff to show that the product (the Mart Cart) was unreasonably dangerous in one of four ways: (1) its construction or composition; (2) its design; (3) failure to adequately warn; or (4) its nonconformity to an express warranty. Under the LPLA, the question of unreasonable dangerousness is assessed at the time the product leaves the manufacturer. The plaintiff in this case had evidence that there were alternative, safer brake design systems, but did not show that they were available at the time of manufacture. The plaintiff was also unable to show that the warnings posted on the Mart Cart were inadequate; indeed, she admitted that she had not read the warnings.

If you have been injured in a slip-and-fall case, you must show that the owner of the premises had actual or constructive notice that a condition on its property posed an unreasonable risk of harm.

Continue reading "Slip-and-Fall Dismissal Upheld Due To Lack of Evidence" »

Previously on this blog, we examined the concept of a "substitute vehicle" for purposes of extending insurance coverage for an auto that is used only temporarily and in place of a policyholder's usual car. In this situation, the insurer is required by state law to extend the same coverage to the substitute car as was in place for the regular vehicle. This requirement, however, does not necessarily apply to a vehicle that a driver simply borrows from another ownerin addition to the vehicle covered by his policy. A vehicle under this arrangement is known as a "non-owned" auto and, as the plaintiff in Burns v. Couvillionlearned, coverage is determined by the language of the owner's policy.

On October 12, 2005, Linda Burns was driving on Highway 1 in Simmesport when she was rear-ended by a bean harvester farm vehicle operated by Burton Dupuis. At the time of the accident, Dupuis was engaged in work for his employer, Victor Lachney. The bean harvester was owned by Ted and Don Couvillion and had been loaned to Lachney for use by Dupuis that day. Burns filed a lawsuit for damages against the parties and also Progressive Insurance, alleging that Progressive had issued a policy to Lachney which applied to the bean harvester. Progressive admitted that it had issued a policy to Lachney that provided coverage on a different vehicle but denied that coverage extended to the bean harvester. The parties filed cross-motions for summary judgment and the trial court granted judgment in favor of Progressive.

On appeal, Burns argued that coverage should apply to the bean harvester because the Progressive policy included an "Employer's Non-Ownership Liability Endorsement," which stated that “[t]he definition of insured auto is modified to include a non-owned auto when you or any of your employees use the non-owned auto in your business.” Progressive countered that the policy had not been modified by the Endorsement because, although it was among the various endorsements and other forms that accompanied the policy, it was not listed on the policy's Declarations Page which specifically identified the forms that modified the policy. In fact, the policy contained the following language:

"All forms in the endorsement section may not pertain to your policy. Please refer to your Declarations Page for form numbers associated with your policy. All other parts of the policy that have not been modified by an endorsement will remain unchanged."

The Third Circuit, applying "ordinary contract principles," noted that the "policy reveals clear and unambiguous language... [and] expressly notes in bold language that not all endorsements pertain to a given policy." Finding that the Employer's Non-Ownership Liability Endorsement did not apply to the policy because it was not among the endorsements and modifications listed on the Declarations page, the court concluded that "Dupuis was not an insured under the Progressive policy and that the [bean harvester] vehicle was not an insured auto under the Progressive policy."

The Burns case reveals a common but potentially troublesome practice among insurers. Many policies are drafted using a standardized, boilerplate template where certain portions may or may not apply to the policy depending on whether they are specifically referenced in the appropriate sections. This can lead to considerable confusion on the part of the insured unless he or she understands the requirements for adding or removing provisions within the policy. This case suggests no hesitation on the part of the court to enforce these types of agreements, so policy owners are well advised to review all insurance documents and confirm they reflect the level of coverage that is expected.

Continue reading "Simmesport Auto Accident Reminds Insurance Policy Holders: Read Your Policy Carefully!" »

In the Parish of Acadia, the Third Circuit Court of Appeal decided a case that clarifies how punitive damage awards are to be applied to vicarious liability cases. In Bonnie Romero v. Clarendon America, Bonnie Romero (plaintiff) was hit by an 18 wheeler truck. The truck was driven by an employee of Stanford Trucking (Stanford). In their filing, the plaintiff argues that the truck was being driven within the scope of the truck driver's employment. Plaintiff also alleges that the driver was intoxicated at the time of the accident. Stanford asked the driver to submit to a drug and alcohol test following the accident. The driver refused to submit to the test and was subsequently fired. Plaintiff filed for summary judgment asking the court to award punitive damages against Stanford because it was vicariously liable for the driver's actions. Plaintiff also filed a motion to compel Stanford to submit to requests for discovery. Stanford cross-filed for summary judgment stating that it was not vicariously liable for punitive damages as a matter of law. The trial court granted Stanford's summary judgment and denied both of plaintiff's motions.

The Court started its discussion by stating that in Louisiana there is a strong public policy against punitive damages. Thus, in order for an award for punitive damages, the right must be clearly signified in a statute. Even if a statute created a right for punitive damages, it would be strictly construed by a court. As such, it is a matter of how Louisiana statutes are worded in order to determine whether a right for punitive damages exists in a vicarious liability case. Louisiana Civil Code Article 2315.4 states in pertinent part,

exemplary damages may be awarded upon proof that injuries on which the action is based were caused by wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

Thus, this statute makes clear that when the driver of a vehicle causes an accident due to the driver's intoxication, a right of punitive damages may exist. At this juncture, it is essential to discuss the motives and policy behind punitive damages. Compensatory damages exist to make a person whole. Whether the damages are for injuries, lost wages, mental distress, or any other such variety, the ultimate purpose is to place the person who is injured in the position they would be in if that accident did not happen. The purpose of the punitive damage award, on the other hand, is to punish the person liable for the accident. In cases where the action of the liable party are egregious, or in the case of Article 2315.4 "wanton or reckless", the judicial system steps in to make the person whole, and punish the liable party to discourage such action in the future.

Louisiana Civil Code Article 2320 covers vicarious liability, and states in pertinent part, "In the above cases, responsibility only attaches when the masters or employers, teachers, or artisans might have prevented the act which caused the damage, and have not done it." Plaintiff never alleged either that Stanford was the cause of driver's intoxication, or that Stanford could have prevented the driver's intoxication, but did not do so. In fact, the facts of the case showed that after the accident occurred, Stanford required the driver to submit to a drug and alcohol test, and after the driver refused, he was terminated. The Court referred to a string of cases that held that those who supplied alcohol to drivers who subsequently were involved in automobile accidents were not held liable for punitive damages. The reason was that as Article 2315.4 clearly states, it is the driver of the vehicle who is liable for punitive damages because of the choice of driving while intoxicated. No statute clearly states that the provider of alcohol is vicariously liable for punitive damages, or that an employer can be liable based on the facts of the case. Thus, based on Louisiana's stated policy against punitive damages, Stanford was not held liable for punitive damages in this case.

It is not always clear what rights and claims a plaintiff may have after an accident. Sometimes the law is not so clearly set out that immediate determinations can be made regarding what a plaintiff should expect out of litigation. On many occasions it may take litigation to discover that a plaintiff has more or less claims than originally thought. Legal advice can make the journey after any accident easier to encounter. Solid and competent legal advice can help protect plaintiff rights and enlighten plaintiffs on what types of damages they may attain.

Continue reading "Louisiana Court of Appeal Clarifies Application of Punitive Damage Award" »

The appellate process in the American judicial system is an important aspect of rights afforded to parties in a litigation. The determinations made at the trial court level are usually left unchanged. The factual analysis of the trial court is left unchanged except under extreme circumstances. It would take a fundamental error on the part of the trial judge to be reversed on a factual matter. Even more protected is the credibility determinations made by the trial judge. The reason for this is that trial judges are usually the only ones who are present to view the body language and tone of voice of any witness on the stand. Further, the trial judge is usually the one who is the best equipped to make appropriate credibility determinations due to experience. An appellate court would have to find the factual and credibility determinations made by a trial judge to be wholly unsupported by the evidence in order to overturn a trial court determination. Louisiana law states that a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Regarding credibility determinations, the law in Louisiana states that where testimony conflicts, an appellate court should not disturb the factual findings of the trial court because it feels that its evaluations and inferences are more reasonable.

Shakeya Johnson v. The City of Shreveport, is a recent case that outlines the process by which an appellate court can review a trial court's determination. On July 4th, 2007, in the city of Shreveport, Shakeya Johnson (plaintiff) was driving down Creswell avenue. As she approached the intersection with Marshall street, where the intersection on her road was regulated by a red traffic light, a police officer was headed towards the same intersection from Marshall street, where his road was regulated by a yellow traffic light. This meant that, at the intersectio,n Shakeya was supposed to make a complete stop as if she were at a stop sign. Instead of doing this, she ran the into the intersection and into the passenger side of the police officer's vehicle. After the accident, she filed suit claiming that the police officer was at fault for the accident and was liable for lost wages and medical expenses incurred due to the accident. Further, Shakeya's mother, Shirley, was also a plaintiff because she was the owner of the vehicle and claimed that the officer was liable for damage to her property. The trial court found, based on the evidence at hand, that the evidence available indicated that Shakeya was at fault for the accident.

The facts used by the trial court were based on photos that showed that Shakeya's side of the intersection was regulated by a red light. Thus, she had the responsibility to stop at the intersection. Further, photos showed that the officer's passenger side was hit, which indicated that the officer was well in the intersection by the time Shakeya got there. At trial, there was contradiction from the plaintiff's witnesses as to whether there was a fifth passenger in the vehicle that Shakeya was driving that night. This led the judge to make a credibility determination of plaintiff's witnesses that was also used in the trial judge's ultimate determination. The issue on appeal is whether the trial court's findings were reasonable under the evidence presented at trial. It was clear to the appellate court that the factual and credibility determinations made by the trial court were reasonable. Thus, the appellate court upheld the trial court's determination.

While this case went against the plaintiff, in the event that another party were responsible, a skilled attorney would be able to provide the representation necessary to receive the ruling you deserve. If you have been the victim of reckless driving, or have been hurt in any type of accident, you should seek legal and medical advice immediately. Speaking to an attorney can help inform you of your rights.

Continue reading "Accident Involving Police Car Tests Appellate Court Ruling Basis" »

In a recent unpublished opinion, a panel of the Louisiana 1st Circuit Court of Appeal affirmed a trial court's award of additur in a personal injury lawsuit stemming from a low-speed rear-end automobile accident occurring in Terrebonne Parish in October 2005. The plaintiff sued for damages for personal injuries, medical expenses, and loss of wages, as well as loss of consortium for his wife and their two minor children. The jury returned a unanimous verdict allocating 70% of the fault to defendants, a towing company, its driver, and the truck's insurer. They awarded damages to plaintiff and his family for the following: past physical pain and suffering, physical disability, impairment, and inconvenience, the effect of plaintiff's injuries and inconvenience on the normal pursuits and pleasures of life, loss of past income, impairment of future earning capacity, past medical expenses, and loss of consortium.

In this matter, plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) or Alternatively for a New Trial and/or Additur as to both the allocation of fault and the amount of damages. After a hearing, the trial court granted plaintiffs' motion for additur and increased the general damages award (which includes past physical pain and suffering, physical disability and impairment, the effect of the injuries and inconvenience, mental anguish, and future pain and suffering) from $28,000 to $100,000 and otherwise denied the motion. The defendants in the case appealed the decision, asserting that the jury did not abuse its discretion in awarding $28,000 (which was determined to be the case when the award was increased) in general damages and that the trial court abused its discretion by increasing the general damages award to $100,000. Plaintiffs, on the other hand, asserted that the additur was improperly low, the jury erred in its allocation of fault and damages, the trial court should have granted JNOV, and that the jury's decision was a "compromise" or "quotient jury" verdict. Other procedural deficiencies were noted and eventually corrected.

The main issues upon appeal were: 1) whether the jury was unreasonable in allocating fault 70%-30% between the defendants and plaintiff, 2) whether a general damages award of $28,000 was unreasonably low and whether the trial court's resulting additur to $100,000 was improper, 3) whether the trial court erred in refusing to grant JNOV, and 4) whether the jury compromised its damage awards and did not fully deliberate on all of the issues.

The question of percentages of liability is a factual determination that cannot be overturned unless an appellate court can find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. There is a presumption in Louisiana that the following motorist in a rear-end collision is at fault. In this case, however, there was conflicting testimony about whether plaintiff remained stopped the whole time or if he instead stopped, moved forward, and then stopped again. Both the trial court and appellate court were unable to find that the jury acted unreasonably in its allocation of fault.

When a jury awards a damages amount that is less than the lowest reasonable amount, additur becomes proper. Here, the jury awarded nothing for mental anguish or future pain and suffering, which the trial court viewed as unreasonably low given the pain and suffering associated with the surgery and medication needed to correct two disc ruptures. Plaintiff's doctors also testified that the plaintiff's neck would never be the same again and plaintiff testified that he was still in pain but worked in spite of it. Because the trial court found that a general damages award of $28,000 was unreasonable, it had the discretion to raise the award, but only to the lowest reasonable amount. Any further award is an abuse of the trial judge's discretion.

In order to grant JNOV, which is a directed verdict terminating the action without resubmission to another jury, a trial court must find that a verdict is not supported by any substantial evidence. Based on its review of the record, the 1st Circuit panel could not conclude that the evidence pointed so strongly in favor of plaintiffs that its verdict as to the issues other than damages was unreasonable. It therefore affirmed the trial court's judgment in that respect.

Lastly, the plaintiffs claimed that because the jury responded unanimously to all answers to the jury interrogatories, that indicated a decision of consensus and/or quotient (averaging each juror's proposed damage award) rather than a carefully considered verdict. However, neither the trial court nor appellate court could find any evidence indicating that the jury verdict was a quotient verdict.

While much of this is complicated, the issues presented are a great indicator of how complex legal matters can be and the importance of an attorney that can help you receive the award you deserve.

Car accidents occur every day, and the first question that is usually asked is who was at fault for the accident. This determination is not easy, however, a Louisiana second circuit court of appeal's case explored fault in order to allocate liability to the parties respectively. In Gentry v. State Farm, the Court held that both parties were at fault, the defendants were found to be 75% at fault, while the plaintiff, Gentry, was 25% at fault. The court came to this conclusion after looking at both drivers duties while driving, analyzing whether the drivers breached their duties, looking into the rules of the road, determining whether the duties of the road were breached, and looking at the duties that were found to be breached by each driver in order to find the ultimate percentages of fault in order to allocate damages. Thus, it is not always an either/or situation (one party may not be wholly responsible for the car accident) but, rather, partially responsible, so the analysis takes on a more in depth review of the circumstances that existed at the time of the accident.

An appellate court must give great deference to the allocation of fault determined by the trier of fact. Consequently, the allocation of fault may be determined within an acceptable range and any allocation by the fact finder, or trial court within that range, cannot be clearly wrong. The only way an appellate court may disturb the trial court's fault determination is if the apportionment of fault is clearly wrong, allowing the appellate court, only then, to disturb the trial court's award. Here, both parties were seeking a finding of 100% fault for the opposing party, asking the appellate court to reverse the apportionment determination found by the trial court in order to dismiss the percentages of fault that were initially determined. If the trial court's determination of fault is found to be clearly wrong, the appellate court is then permitted to adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion.

After reviewing both party's evidence put forward at the trial court level, the appellate court determined that manifest error existed in the record, and allowed for a reframing of liability findings, but only to the minimum extent to achieve reasonableness. So, it is not unheard of for appellate courts to find error of fault determinations held at the trial level, if the trier of fact proves to be clearly wrong, the appellate court may proceed to adjust accordingly.

In the instant case, each side requested the appellate court to assess the other party with 100% fault. But, after reviewing the facts, the appellate court determined they were each at fault at varying percentages. The car accident involved a son driving his father down the right lane of West Bern Kouns four lane highway. At the same time, leaving his plumber and pipefitter's school, the plaintiff apparently came to a stop before entering the highway. It was at this point that the accident occurred, with the defendant's vehicle crashing into the plaintiff's. Here is where the facts become complicated; the defendants stated that the plaintiff pulled his vehicle out in front of them, causing the accident. However, the plaintiff states that as a result of his injuries incurred from the accident, he could not recall anything except stopping before the crash. The accident report assessed the plaintiff's inattentiveness as a cause of the accident, although no one was formally cited with a violation. Also, a witness, who was behind the plaintiff when the accident occurred, stated that the defendant's care traveling at 60-65 miles per hour, struck the plaintiff, and that he never saw the plaintiff's brake lights go out before the crash. This would indicate that the plaintiff did not pull his vehicle out in front of the defendants as they maintained. However, the fact that the plaintiff could not recall any specifics in relation to the accident may have hurt his case. The defendants on the other hand, were determined to have had the right of way and high quality evidence, including:

- The father and son's testimony,
- The accident report's finding that the plaintiff's inattentiveness was a cause of the accident, and
- the witnesses admission that he was unsure whether or not the plaintiff was intruding on the highway or not at the time of the crash.

The appellate court concluded that manifest error was in the record, and permitted them to reframe the liability findings, but only to the minimum extent to achieve reasonableness. The ultimate determination was the plaintiff at 75% fault, and the defendant to be 25% at fault, with costs of court to be assesses on the same basis. The strong evidential support the defendant's offered outweighed and ultimately helped them reduce the fault determination initially made by the trial court.

Fault is not something that can be determined in an "all or nothing," type fashion. Rather, it is a careful weighing of the facts in order to determine how each party may have added to the ultimate fault, the car accident. Both parties here put forth evidence to support their side; however, one the defendant's evidence simply outweighed the plaintiff's. Thus, the appellate court, after reviewing the record, determined that the initial fault determination was clearly wrong, and reallocated the fault percentages to better illustrate the evidentiary findings. Thus, fault is a step by step analysis that requires exploring each piece of the puzzle in order to accurately assess who is at fault, and for how much.

Court systems are very highly burdened. Currently, there are too many cases compared to the number of judges and judicial staff. This phenomenon of law will not likely change any time soon. Therefore, the judicial system had to come up with ways to counter the overflowing process. One of the most logical methods of ending too much litigation is to limit the amount of time a case can sit in the judicial system without action. This is a process called abandonment. In Louisiana, if a case has not progressed, through prosecution or defense, for three years, the case will be thrown out of the court system and will be banned from further action.

The impact of such a rule is significant on any litigation. However, overcoming this outcome is very easy. Any significant action taken on behalf of any party in the case will re-start the time period. Therefore, the only cases that are hurt are cases where the plaintiff has filed a suit and has forgotten about it or has found better things to occupy time with. These cases remain on the books, and when, a few years down the road, the plaintiff remembers that the case is still pending, the case will be denied access to the courts.

Additionally, lawyers and clients should be aware that not all action intervenes on the three year time period. Some action will not stop the clock from running. LSA-C.C.P. art 561 states in relevant part:

This provision shall be operative without formal order, but on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

Then the statute goes on to describe what types of actions will constitute a step in the process of litigation:

Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Any discovery will end the clock for abandonment. In a recent case, Mary Brown v. Michael Borg, a court discussed what will constitute a step. The action began with a typical car accident. The plaintiff, Ms. Brown, sued Michael Borg and his insurance company after Mr. Borg, while operating his vehicle, collided with Ms. Brown's vehicle. After the action commenced, the parties relayed discovery requests back and forth. On August 18, 2005, Ms. Brown commenced her action. Attached to the petition was a request for discovery and interrogatories. On October 19, 2005, the defendants responded to the petition and also made discovery requests of their own. Ms. Brown responded to the defendants discovery request on July 17, 2006. On November 28, 2007, Mr. Borg's counsel wrote to Ms. Brown and her counsel, requesting the discovery that was sent on July 17. On December 10, Ms. Brown's counsel reported that all the requested documents and answers were already sent. No other actions were taken by either party. On October 16, 2009, Mr. Borg filed a motion to dismiss the petition due to abandonment. Ms. Brown argued that the communication on November 28, 2007 and December 10, 2007 were actions taken by the parties in furtherance of the prosecution and defense of the petition. However, the Court looked at the circumstances differently.

The Court classified the communication by the parties as indications that action would be taking. The Court argued that the communication indicated that no actions had been taken and that no actions would be done in response. The Court stated that the last action taken by either party was on July 17, 2006 when Ms. Brown responded to the defendants request for discovery. By the time Mr. Borg filed to dismiss the claim on October 16, 2009, by the Court's decision, no action had been taken for over three years. Therefore, there was no longer any case pending, and Ms. Brown had lost her chance to file a petition.

If you have a claim, it is essential that you speak to an attorney as soon as possible. Competent legal counsel will provide continuous and consistent legal representation. If a case is pending for too long without action, Ms. Brown's case demonstrates what can happen.

Continue reading "Plaintiff Takes Too Long in Civil Case, Suffers Consequences" »

In civil litigation, the defendant is responsible for the damage caused to the plaintiff(s) when found responsible for causing harm. This damage may be either physical or property damage. If a defendant is found to be at fault, the next question is usually to what extent the defendant is liable for any resulting injuries. In normal circumstances, experts provide testimony concerning physical and property damage, and any intangible damages such as lost wages, mental distress, etc. In some circumstances, the plaintiff may have a preexisting condition. This preexisting condition may make the damages the plaintiff suffers more likely. Further, the injury or accident may exacerbate the preexisting condition. There is a civil law maxim that "the defendant takes the plaintiff as he is at the time of the accident." This is commonly referred to as the eggshell rule. In a recent case, Miriam Dyess vs. State Farm Insurance Co. ET AL., the Court describes how the eggshell rule relates to an award for damages.

In this case, Dyess was driving in Alexandria, Louisiana, when another car pulled in front of the plaintiff's car. The result was that Dyess ran into the back of the other vehicle. The driver of the other vehicle was insured by State Farm Insurance. Plaintiff was insured by Farmer's Insurances (Farmers). As a result of the injury, Dyess suffered injuries to the neck, shoulder, hand, back, right leg, and has headaches, foot pain, and numbness. The plaintiff was also awarded $103,000 in damages. Farmers appeals the decision stating (1) there was only $1,500 worth of damages, (2) plaintiff denied any injuries at the scene of the accident, and (3) plaintiff's injuries were as a result of a pre-exisiting carpal tunnel syndrome and fibromyalgia. Farmers appealed to set aside or reduce the $103,000 award as manifestly erroneous, and that the court erred in awarding damages and medical expenses for injuries other than those to plaintiff's neck.

The basis of the award that the trial court gave plaintiff was the eggshell rule. The trial court stated that plaintiff was an eggshell victim who already had some medical problems. But, as such, you must take the victim as you find them. The Appellate Court's applicable standard of review is that it cannot set aside findings of fact unless it is manifestly erroneous or unless it is clearly wrong. Where the jury's findings are reasonable, in light of the record viewed in its entirety, the court of appeal may not reverse. Although, there was some inconsistent evidence, plaintiff provided uncontroverted evidence that her preexisiting condition was exacerbated due to the accident. Defendant's liability is not mitigated by the fact that plaintiff's preexisting physical infirmity was responsible in part for the consequences of plaintiff's injury by the defendant. It is clear that the defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortous conduct. However, plaintiff fails to carry the requisite burden of proving causation if the pre-accident and post-accident conditions are identical in all meaningful respects. Thus, because the plaintiff provided uncontroverted evidence that the injuries exacerbated any pre-existing condition, she has met her burden.

These are the facts upon which the trial court awarded $103,000 in damages. The role of the appellate court is not to fix an award that it deems appropriate to the case, but, instead, to determine whether, based on the effect of the partiuclar injuries on the particular plaintiff in the particular circumstances which plaintiff finds himself in, the award is an abuse of discretion of the trier of fact. The eggshell rule and exacerbated symptoms were reasonable enough factual and legal reasons to find that the trial court's award was within its discretion.

Continue reading "Appellate Court Outlines Standard of Review for Damage Awards" »

In many circumstances, state and federal governments are protected by governmental immunity. In some circumstances, e.g. where government acts as a market participant, these immunities are set aside due to the nature of the actions taken by the government. In Louisiana, the Lafayette Consolidated Government (LCG) runs a bus service for its citizens. On one bus drive, a customer of a LCG run bus was injured due to the malfunction of a pull cord that came loose striking the customer in the eye. In Willie Mae Scott (plaintiff) v. LCG, the Appellate Court upheld a trial court decision that granted summary judgment to LCG.

In August of 2006, plaintiff was riding a bus run by LCG. Another customer of the bus pulled on the cord to inform the bus driver that he should stop. Upon pulling the cord, a clamp holding the cord in place came loose striking plaintiff in the eye causing damage needing medical care. Plaintiff sued LCG as a common carrier and argued that, due to LCG's common carrier status, it was under a stronger duty of care than most.

The issues in the case were summarized by the Appellate Court as follows: (1) whether LCG had actual or constructive notice of the pull cord (2) whether LCG was a common carrier, subjecting it to a higher duty of care and (3) whether the existence of other pull cord defects created a genuine issue of material fact. The trial court granted summary judgment in favor of LCG stating that there was no genuine issue of material fact. At the appellate level, the Court views the case de novo under the same summary judgment standards used at the trial court level.

Plaintiff argues that LCG had constructive notice of the pull cord defect. As such, they argued that this notice exists due to a lack of plan to check the pull cords. However, the Supreme Court of Louisiana has held in the past that as it relates to governmental entities, a lack of plan to inspect cannot lead to constructive notice. According to La.R.S. 9:2800, constructive knowledge is the existence of facts that infer actual knowledge. To argue that by not planning to check the pull cords LCG had constructive knowledge of the defect is a counterintuitive argument. Plaintiff further alleges that the standards set out by 9:2800 are irrelevant because LCG is a common carrier and is thus subject to a higher duty of care. However, the Appellate Court stated that statutes are supreme law that trump any common custom or usage. 9:2800 speaks directly to the issue of governmental liability in cases like LCG. Therefore, the statute overrules any common law ideal or custom within the legal community. Plaintiff also brought forth evidence that there was three other occasions where a defective pull cord injured a bus passenger. The first circumstance occurred at a time and place that no one could identify. Thus the impact of this evidence was ineffective. The other two incidents occurred on buses manufactured by companies other than the one that manufactured the bus in issue. Therefore, this evidence was irrelevant. The Appellate Court upheld the trial court's holding that there was no genuine issue of material fact.

While this case did not go as the plaintiff hoped, each case is different and there may still be something an intelligent, well-versed attorney can do. If you have been injured to the negligence of another driver, or defect in a vehicle, you may have a claim to damages.

Continue reading "Court Upholds Lower Level of Standard of Duty for Louisiana Governments" »

In a very recent Louisiana Court of Appeals Case, the Court took a rare action to uphold summary judgment when considering whether the lead vehicle in multi car pileup was negligent. The Court found the lead driver, Martin Lopez, was not negligent because he acted with ordinary care. This idea of ordinary care is extremely important

The accident in question occurred in Shreveport, Louisiana. Adam Parisy was driving north on I-49 with 3 passengers. He exited on a high rise ramp that curved over I-49 to Highway 3132, behind a freightliner driven by Lopez. The turbocharger on the 18 wheeler exploded, engulfing the area in smoke. Lopez pulled the liner over, unaware of any collission. Parisy stopped at the top of the ramp because he couldn't see and was rear ended by another drive, who was also rear ended.

Parisy and two of his passengers were seriously injured. Several separate lawsuits were filed, including against Lopez, his insurer, and his employer, which were dismissed via summary judgment.

Under the Sudden Emergency Doctrine, someone who finds themselves in imminent peril, without time to consider all the circumstances or the best steps to take to avoid danger, is not guilty of negligene if he fails to adopt which subsequently appears to be the better method of action, unless the emergency is brought by his own negligence.
Here, plaintiffs argue that the second driver's truck slammed into their vehicle and drove it into Lopez's rig. Because the collision was so severe, they remember only seeing smoke and stopping. The plaintiffs also allege that there are questions of fact as to whether Lopez stopped his vehicle after the turbocharger blew. However, they have no direct testimony to support the theory and only offer proof of a scratch on Parisy's vehicle that was not there before. Lopez's testimony that he did not stop is corroborated by the other two drivers. Additionally, the police report does not indicate there was a collision between Parisy's vehicle and Lopez's truck.

The plaintiffs also argue that Lopez was negligent because his truck caused the smoke and white out. However, the record shows that the turbocharger had been replaced two months before the blowout - there was no advanced warning that the new turbocharger would malfunction and everything indicates that Lopez and his employer exercised ordinary care. It is also argued that Lopez acted negligently in his reaction to the blowout. Lopez was faced with loss of power and visibility and had to make an instance decision, which he did, to put the vehicle and neutral and coast it to a safe location. Now that we are far removed from the accident, the plaintiff's suggest this was not the best course of action, however, Lopez acted with ordinary care in attempting to remove the danger by getting off the ramp.

If you have been in an accident and believe another driver's negligence was to blame, it is important you have an attorney with enough experience to know whether the Sudden Emergency Doctrine or some other law applies that may negatively impact your ability to be successful in your case. One of our talented lawyers would be happy to answer any questions you might have.

Audrey Thompson was injured in an automobile accident that occurred when a vehicle driven by Chad Harp rear-ended a vehicle driven by Susan Young. This triggered a chain of events where three other vehicles, including the Thompson vehicle, were rear-ended as a result of Harp’s conduct. The Thompsons filed a lawsuit and named Harp, the driver allegedly at fault, and his insurer, State Farm, as defendants.

Because of the number of potential personal injury claimants and the belief the $300,000 per accident coverage limit of State Farm’s policy was "inadequate to cover the amount of damages suffered," the Thompsons also named her uninsured/underinsured motorist (UM) insurance carrier, Government Employees Insurance Company (GEICO), as a defendant. The plaintiffs also sought recovery for loss of consortium, damages for medical expenses and “loss of the wife’s income” on behalf of the marital community. Moreover, they explicitly focused their damages to the "jurisdictional maximum" of the Alexandria City Court in addition to legal interest thereon from date of judicial demand, until paid in full as well as court costs.

In compliance with its jurisdictional limit, the Alexandria City Court entered judgment, awarding Audrey $50,000 in general damages and awarding Charles,on his own behalf, $20,000 for loss of consortium, and $30,000 for past and future medical expenses on behalf of the couple’s community. State Farm filed an exception claiming that the amount in dispute exceeded $50,000. Examination of the State Farm policy revealed a $100,000 limit per person and a $300,000 limit per accident, which exceeded the city court’s jurisdictional limits. According to the court of appeal, the trial court was required to transfer the action to a court with the appropriate subject matter jurisdiction, upon finding that the claims exceeded the jurisdictional limit. However, the court of appeal erred in its reading of plaintiffs’ petitions and our Code of Civil Procedure provisions governing the subject matter jurisdiction of city courts.

Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. It refers to the nature of the claim or controversy. For example, bankruptcy court has the authority to only hear bankruptcy cases. In addition to the legal issue in dispute, the subject matter jurisdiction of a court may be determined by the monetary value of the dispute—the dollar amount in controversy. According to La. Code Civ. Proc. art. 4841, the subject matter jurisdiction of city courts is limited by the nature of the proceedings and by the amount in dispute, which amount is determined by the amount demanded. However, the amount in dispute does not include interest, court costs, attorney fees, or penalties, whether provided by agreement or by law. Here, the court found that the Alexandria City Court had proper subject matter jurisdiction over the claim filed by the Thompsons. The court indicated that the plaintiffs "never sought to recover damages beyond the jurisdictional limits of the city court, but sought to ensure recovery by proceeding first against the tortfeasor’s insurer, State Farm, and then against their UM insurer only to the extent their damages exceeded the underlying coverage afforded by and available to them under Harp’s State Farm policy." In their pleadings, both plaintiffs limited their demands to "an amount less than the jurisdictional maximum of .... yet within the jurisdictional limits of [the Alexandria city] court." Therefore, contrary to the appellate court’s conclusion, subject matter jurisdiction always properly rested in the Alexandria City Court. However, the issue of the calculation of damages as to each plaintiff, individually, has not been addressed by the court of appeal.

Failure to bring a claim in a court with the proper subject matter jurisdiction can have devastating effects on a legal suit. Since the lack of subject-matter jurisdiction cannot be waived, any judgment from a court lacking subject-matter jurisdiction is a nullity. Moreover, if a court has to transfer a case due to improper subject matter jurisdiction, it will delay a lawsuit. It is important to consult an experienced attorney, such as those at the Berniard Law Firm, to ensure that cases are properly filed in the appropriate court.

Certain legal rights are transferable. If you owe a debt to some entity, upon your death, there is a chance that the entity will have some rights to your estate in order to satisfy your debt. Another example of a transferable right is a right of survival. If the victim in any circumstance has this right, upon the victim's death, the right would be transferable to the victim's family. The concept is relatively easy to understand but the situation gets complicated when the potential rights belong to an unborn fetus.

Throughout the country, different states have different interpretations of when a fetus becomes a person, and this has a big impact on what rights attach to protect the fetus. In Louisiana, the legislature has decided that an unborn fetus can in fact have rights against other persons or entities. However, Louisiana Civil Code article 26, which discusses a fetus' rights, has some important limitations:

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for actions resulting from its wrongful death.

Thus, the Louisiana legislature has codified what rights a fetus has. These rights extend to the moment of conception. However, if the fetus is born dead, all rights that attach to the fetus, except rights that find their origin in the cause of death, are extinguished.

The Louisiana Supreme Court discussed if survival rights attach to an unborn fetus, stating that fetuses can gain rights. However, for most circumstances, the rights attach only if the fetus is born alive. The Court stated that survival action attaches to someone's life. However, under Louisiana law a fetus that is born dead, is considered to never have existed at all. Even though the fetus gained the right to a survival action, because a stillborn fetus is considered to never have existed at all, the survival action, which attaches to a life, is extinguished.

In a recent case, Cari Long v. North Oaks Medical Center, the issue of survival action came up again. Ms. Long was involved in a car accident. She was pinned as a result of the accident. After emergency services arrived, she was taken to North Oaks Medical Center. The ER doctor and nurse contacted her obstetrician because she was pregnant. At the hospital, the heartrate of the baby was recorded at 120 beats per minute. After being taken out of ER, the doctor found that the fetus did not have a heart rate. Subsequently, the fetus was delivered as a stillborn. Ms. Long filed suit and as one of her causes of action, she claimed a survival action on behalf of the baby. All defendants filed exception claiming that there was no survival cause of action on behalf of the baby that was transferred to the parents. Based on Louisiana Civil Code article 26 and the Supreme Court ruling discussed above, there was no basis for the survival action. Under the current law there is no recourse in this type of circumstance. Only by legislative action can a survival action attach for a stillborn fetus.

While this matter is undoubtedly unfortunate and all parties involve wish that things did not go the way they did. However, the case also illustrates how complex the law can be and the ever-changing nature of some claims. Codified law can be extremely important and having an attorney that understands rights as provided by the state is significant in any matter.

Continue reading "Transferable Rights and How They Pertain to a Lost Pregnancy" »

It is well settled in Louisiana law that "a tortfeasor takes his victim as he finds him and when a defendant’s tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation." Lasha v. Olin Corp. In other words, when a person injures another, that person is responsible for all damages he caused the victim, even if the victim's own unusual susceptibility contributed to the extent of the damages. This does not mean, however, that the injured plaintiff is relieved from the standard requirement of tying the damages he suffered to the defendant's negligent action.

The Third Circuit Court of Appeal recently explored this concept in the case of Downing v. Miller. On October 15, 2007, Carolann Downing was involved in a car accident with John Miller in Lafayette. The incident occurred when Miller pulled out of a restaurant parking lot onto Congress Street and crashed into Downing's vehicle. Downing did not suffer any physical injuries, but the experience aggravated her pre-existing bi-polar anxiety and obsessive-compulsive mental disorders. At trial, the parties stipulated Miller's liability for the accident; the only issue in dispute was the amount of damages. Downing testified that she experienced mania followed by depression after the accident. Her symptoms included loss of sleep, loss of appetite, racing thoughts, nervousness, agitation, and anger. Thereafter, she became depressed and was unable to care for herself: she did not leave the house but instead stayed in bed and slept most of the time. However, on cross examination, Downing acknowledged that during her life she commonly experienced “periods of ups and downs” and that the episode following the accident with Miller was consistent with other "down" periods she had suffered in the past. Downing offered the testimony of Dr. Bob Winston, her treating physician, who confirmed that the accident exacerbated her mental issues. Dr. Winston further offered a summary of the behaviors Downing exhibited in the five-month period following the wreck, which he attributed to the stress she experienced in the event. Essentially, however, Dr. Winston's summary showed that Downing steadily improved over time. The trial court awarded Downing $7,500 in damages. Dowling appealed, arguing that the trial court's award was so low as to be "clearly wrong."

As we have covered previously on this blog, the trial court enjoys "great discretion" in setting damages awards, and an appellate court may disturb a trial court's award only on the showing of a clear abuse of discretion. Wainwright v. Fontenot. Although Dowling argued that the trial court abused its discretion in not fully taking into account the accident's role in exacerbating her mental disorders, the Third Circuit found sufficient evidence that the trial court's decision was well-grounded on the evidence presented at trial. For example, the court noted that Dr. Winston observed an increase in symptoms when Dowling's aunt passed away and also on an occasion when she was nervous about an upcoming visit with her son. The trial court determined that Dowling's response to the accident was similar to other aggravations triggered by ordinary events in her life; therefore, the accident did not cause an unusual result for Dowling for which she was entitled to a higher amount of compensation. The Third Circuit agreed with this reasoning in light of the evidence of Dowling's mental health history and affirmed the award.

The lesson from the Dowling case is that, although a negligent defendant is responsible for all damages he causes the plainitiff -- even those damages that arise out of a unique condition -- the defendant must demonstrate that any compensible consequence is directly linked the the defendant's conduct. In this case, Dowling did obtain some level of damages for her mental suffering following the accident, but the evidence she presented did not demonstrate that the trial court erroneously arrived at the amount. By hiring a skilled attorney who can help work at presenting proper evidence, contact one of our expert attorneys today.

Continue reading "Lafayette Car Wreck Leads Court to Explore the Role of Plaintiff's Pre-Existing Condition in Assessing Damages" »

Louisiana courts have consistently held that a guest passenger is not responsible for a driver’s negligence. “This jurisprudential rule recognizes the fact that an automobile passenger is generally incapable of influencing the driver’s behavior: it is unrealistic to hold ... that the occupant of a motor vehicle has factually any control or right of control over the driving of the operator.” See Adams v. Sec. Ins. Co. of Hartford, 543 So.2d 480, 485 (La. 1989). Despite this well-settled rule, the plaintiff in the case of Delcambre v. Jones attempted, unsuccessfully, to impute the defendant driver's negligence to his passenger. On September 24, 2006, Stephen Delcambre was stopped at a red light on U.S. Highway 90 in St. Martin Parish when his car was struck from behind. The errant car, which had been rented by Jeffrey Schommer, was being driven at the time by Thaddeus Jones while Schommer was a passenger. Jones was drunk at the time of the accident and later pled guilty to DWI. Delcambre filed suit against Jones and Schommer, and eventually settled with Jones. During a trial in the continuing action against Schommer, Schommer's counsel moved for dismissal after the close of Decambre's evidence. The trial court granted this motion. Delcambre appealed, claiming as the sole assignment of error that the trial court erred in failing to find that Schommer was bound in solido (both together) in liability with Jones.

Delcambre urged that Schommer should be held liable with Jones in solido under Louisiana Civil Code Article 2324(A), which states:

“He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.”

The Third Circuit, however, in reviewing the trial record, pronounced it "completely devoid of any evidence whatsoever that Mr. Schommer conspired with Mr. Jones to commit any act, intentional or otherwise." The court observed that the only evidence Delcambre offered about Schommer was that "he was so intoxicated that he was blacked out on the side of the road after the accident, unable to speak or even sit up." Agreeing with the trial court's conclusion, the court deemed that Schommer would have been unable to conspire with Jones in his condition. Furthermore, "Schommer’s intoxication alone certainly does not prove the conspiracy" required by the Civil Code to impose in solido liability. Accordingly, the court found no error in the trial court's ruling and affirmed the dismissal of Delcambre's action.

Although one can sympathize with Delcambre's desire to maximize his recovery for the personal injuries and property damage he sustained at the hands of Jones, Louisiana’s long-held rule that a driver’s negligence is not imputed to a guest passenger defeated his attempt to obtain compensation from a passenger. Merely renting a car and surrendering the keys to another driver--even one who is intoxicated--are not enough to invoke in solido liability for the driver's negligence.

Continue reading "Court Reaffirms: No Passenger Responsibility in Car Crash Caused by Drunk Driver" »

It is well-settled in Louisiana jurisprudence that an injured party has a duty to mitigate damages. In other words, a victim is required to make reasonable efforts to minimize the extent of injury or damage that results from a tortfeasor's actions, even though the actions may be negligent or wrongful. The idea is that a plaintiff cannot just "sit idly by" while his situation becomes worse if there is something he could do to stop or lessen the damage. A plaintiff, however, is not required to make extraordinary efforts or to do what is unreasonable or impractical to minimize the damages. Instead, the efforts need only pass the test of being consistent with common sense.

For a defendant to invoke the defense of the plaintiff's failure to mitigate damages, the defendant must meet the burden of showing that: (1) the plaintiff's conduct after the injury was unreasonable; and (2) that the plaintiff's unreasonable conduct resulted in the aggravation the his harm. In light of the standard of reasonableness on the part of the plaintiff's duty to mitigate, this is not a simple burden for a defendant to carry. The recent case of Britt v. City of Shreveport offers a look at the Second Circuit Court of Appeal's treatment of this issue. On August 5, 2003, Carolyn Britt was driving her Chevy Astro van on Thornhill Street in Shreveport. The street was partially blocked by a crew of City employees that was trimming a roadside tree. One of the employees signaled to Britt to proceed through the area. As she drove through, a tree massive limb fell and landed on top of her vehicle. Britt suffered multiple injuries to her head, neck, shoulders, lower back, and legs, but did not immediately go to the hospital. Instead, she called her daughter to pick her up from the scene.

More than a week later, Britt sought treatment from a chiropractor who saw her over the course of the next six months. Although her condition improved, Britt continued to experience back pain, so the chiropractor referred her for an MRI. Britt refused the MRI but instead over the next year serially consulted four physicians whose recommendations she routinely ignored. After being told by the last physician that she was not a candidate for surgery, Britt visited a neurosurgeon in November of 2004. The neurosurgeon recommended surgery to correct her back problems. Britt then was examined by a physical therapist who suggested a physical therapy rehabilitation program to follow the surgery. Britt never underwent the surgery or enrolled in the therapy program. Instead, she filed a petition against the City of Shreveport to recover damages resulting from personal injuries, including pain and suffering, medical expenses, lost wages, loss of earning capacity, and loss of enjoyment in life. The City did not dispute its fault in the accident, so following a trial on the quantum of damages the court awarded Britt $371,963.96 in general and special damages. This amount included an unspecified reduction based on Britt's failure to seek and follow proper medical treatment following the accident. The City appealed, arguing that the trial court's award did not accuratly reflect that, had Britt submitted to the recommended treatments and physical therapy regimen, she would have substantially increased her chances of not needing surgery at all. In addition, the City argued that the trial court erred in determining that Britt was justified in refusing to undergo surgery because she would have been required to pay for the procedure out of her own pocket.

The court, mindful of the requirement for a plaintiff to mitigate damages, noted that a plaintiff's "recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery." Jacobs v. New Orleans Public Service. The court explained, "the expense and inconvenience of treatment are also proper considerations in determining the reasonableness of a person's refusal to submit to treatment." The court noted that the trial court properly considered Britt's lack of financial means to pay for the recommended physical therapy or surgery, the latter totaling an estimated $50,000. Nevertheless, the trial court found that without the surgery, Britt would never recover from her injuries, and so the failure to undertake the surgery was contrary to Britt's duty to make reasonable efforts to mitigate damages. This was reflected in the amount of damages awarded Britt by the trial court. The Second Circuit found no abuse of discretion on the part of the trial court in this decision, and affirmed its award of damages.

The Britt case shows the value of consulting an attorney as soon as possible following an accident. Given the duty for an injured plaintiff to mitigate damages, it is prudent to discuss possible treatment options with a lawyer as part of the process of deciding the best course of action to take. As this case demonstrates, a plaintiff's damages award will be reduced if the court finds this duty has not been met.

Continue reading "Plaintiff's Failure to Mitigate Damages in Shreveport Accident Results in Reduction of Damages Award " »

Accidents are a common occurrence for automobile drivers. In fact, in 2009, there were 73,900 injuries caused by automobile accidents in the state of Louisiana. However, when one is injured in such an accident, liability is often difficult to assign. In other words, it takes a fact-finder to determine who is at fault for the accident and who is liable for damages incurred by any injured party. In a recent Louisiana court case, a passing motorist was found to be 100% liable for injuries sustained by an individual while the other motorist involved in the accident was not liable for payment of any damages.

On August 18, 1999, William Boyd was injured in a motor vehicle accident that occurred on Louisiana Highway 14 in Jefferson Davis Parish. Boyd, who was an inmate assigned to highway clean-up at the time of the accident, was a passenger in the prison van driven by Joseph Deville. A sixteen-foot trailer, used to carry tools and supplies needed for the work detail was attached to the rear of the prison van; also, a dump truck followed the van. The driver of the prison van was in search of a clear spot on Highway 14 to pull over and allow the inmates to eat lunch. Mr. Deville located a clear, shady spot on the left of the Highway and, as the prison van began to exit to the left, a passing car driven by Rosalinda Broussard hit the rear left side of the van. As a result of the accident, Mr. Boyd sustained injuries and brought suit against Mr. Deville, Wackenhut prison facility, Ms. Broussard and the insurance companies for the parties. Before trial, Mr. Boyd settled his claims against Ms. Broussard and her insurer. However, he proceeded with his claims against the three remaining defendants arguing that Mr. Deville began to make his left turn well after Ms. Broussard began her passing maneuver. In the bench trial, the trial judge found Ms. Broussard to be 100% liable for the injuries and dismissed the case against the other defendants. This decision was upheld by the Court of Appeals.

In order to reverse a trial court's findings, "a reasonable factual basis [must] not exist for the finding of the trial court" and "the record establishes that the finding is not clearly wrong." Otherwise, the decision would be reversed. When imposing liability for an automobile accident, a plaintiff must establish that the defendant owed a duty to the plaintiff to exercise reasonable care while driving on the road and that duty was breached by failing to act like the average reasonably motorist. This failure must have proximately caused the plaintiff's damages. While duty and breach are questions of law and determined by the court, causation and damages are questions left for the fact-finder to determine. In Louisiana, courts have found that allocating fault "is not an exact science nor is it a search for a precise ration. Instead, the courts must determine if the "allocated fault falls within a certain range that does not violate the manifest error rule. While finding that Mr. Deville was not at fault for the accident, the court quoted a Louisiana statute, which provides specific instruction for motorists in the left lane attempting to pass other vehicles, entitled "Limitations for passing on the left." Since Ms. Broussard did not comply with this statute and Mr. Deville used his turn signal and began to turn before Ms. Broussard began her passing maneuver, she was found to be solely responsible for the accident.

In personal injury suits, it is the responsibility of attorneys to maximize the amount of damages the injured plaintiff may recover or to minimize the liability of the defendant. Thus, it is crucial that an individual involved in such a lawsuit consult a seasoned attorney, such as those from Berniard Law Firm, to assist them with their claims.

Continue reading "Passing Poses Problems: Automobile Accident Liability for Passing Vehicles on the Roadways" »

In numerous prior posts, we have explored how critical expert testimony often is in determining the outcome of a negligence trial. Although experts can play a pivotal role in helping a plaintiff build his case, they do present some limitations. Typically, expert witnesses are required to render an opinion based on the information that they or someone else (e.g., a police officer) gathered after the fact; this can mean that not all useful evidence is available, and may call for some level of educated speculation. Also, practically speaking, it can be expensive for a plaintiff to retain the services of an expert, especially when the value of the claim is not particularly substantial. It follows then that often a plaintiff must rely on non-expert, or "lay," witnesses at trial. Commonly, lay witnesses are recruited bystanders who happened to observe the incident which gave rise to the plaintiff's claim. Although lay witnesses are somewhat limited in the types of opinions they can offer in testimony, their input is often extremely valuable for a plaintiff.

In the recent case Mitchell v. Roy, the Louisiana Court of Appeals examined the handling of important lay witness testimony by the trial court. In March of 2008, Darion Mitchell, age 10, was riding his bicycle on 8th Avenue between 9th and 10th Streets in Lake Charles when he veered into the path of a Chevrolet minivan driven by Albert Roy, Jr. Mitchell, who was not wearing a helmet, was thrown onto the hood of the van and struck the windshield. He was transported by ambulance to Christus St. Patrick's Hospital where he underwent a series of tests that revealed he suffered some minor soft tissue swelling but no brkoen bones. Mitchell was diagnosed with a head injury and scalp lacerations, and he received stitches before being discharged from the hospital later the same day. Within a few months, Mitchell's mother filed suit against Roy, alleging that Roy had negligently caused the accident by driving in excess of the posted speed limit, by failing to keep a proper lookout, and by failing to take care to avoid the collision. A bench trial was held. One of Mitchell's key witnesses was Angela Dodd, a neighborhood resident who happened to be sitting on her front porch at the time the accident occurred. Dodd offered testimony about the speed of Roy's van: she estimated that Roy was driving between 35 and 40 MPH. This estimate was based on Dodd's prior experience operating her own vehicle "at various speeds" and the fact that Roy's vehicle "kicked up dust" on the street as it approached Mitchell. The trial resulted in a finding that Roy's negligence was the sole cause of the collision, a verdict in Mitchell's favor, and an award of damages. Roy appealed, citing as error, among other things, the trial court's allowing Dodd to offer a lay opinion as to the speed of Roy's vehicle.

The Third Circuit addressed this enumeration of error by first reviewing the standard in Louisiana for assessing the admissibility of a lay witness's opinion testimony. The state Code of Evidence in Article 701 provides that such testimony is limited to opinions which are (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of her testimony or the determination of a fact in issue. Put another way, a lay witness is permitted to draw reasonable inferences from her personal observations, so long as she also explains what those observations were. As a general rule, when reviewing a trial court's admission of lay opinion testimony, an appellate court must ask whether the testimony was an improper speculative opinion or simply an inference drawn from the witness's observations and, if erroneously admitted, whether the testimony was so prejudicial as to constitute error that should be reversed. The court noted that in overruling Roy's objections to Dodd's testimony, the trial court stated that it would "take into consideration that [Dodd] is not an expert on speed" and that it would consider her opinion "in the context of just a lay impression." After reviewing the record of Dodd's "compelling" testimony about what she observed and how she arrived at her speed estimate, the court determined it was "satisfied that the trial court properly allowed Dodd to testify as to the inferences she drew based upon her personal observations, [and] that the trial court gave the proper weight to Dodd's opinion testimony." Furthermore, the court deemed the opinion, even if admitted in error, insufficiently prejudicial to Roy so as to warrant reversal.

The Mitchell case demonstrates Louisiana's reasonable approach to the admission of lay witness opinions during a trial. It's almost unavoidable that witnesses will include some type of opinion in the testimony they provide--this is simply the nature of the role of a person called to court to explain what she saw. It is up to the trial judge to weigh the potential harm to the other party when allowing a lay witness to offer an opinion, and to ensure that the opinion is based solidly on facts the witness personally observed. Naturally, an experienced trial attorney is invaluable to a plaintiff in identifying appropriate witnesses whose testimony will meet these requirements and help build the case.

Continue reading "Lake Charles Bicycle Accident Case Leads Court to Review Role of Lay Witness Testimony" »

According to state law, the Louisiana Department of Transportation and Development (DOTD) has a duty to maintain the public highways in a condition that is reasonably safe for drivers exercising care and reasonable prudence, and even for those who are slightly exceeding the speed limit or who are momentarily inattentive. Ferrouillet v. State ex rel. DOTD. If the DOTD is aware of a defect in the roadway that cannot be immediately corrected, it must provide adequate warnings of the danger. The warnings should be "sufficient to alert the ordinary, reasonable motorist, based on considerations of probable volume of traffic, the character of the road, and the use reasonably to be anticipated." Generally, in order for the DOTD to be held liable for damages, injuries, or death on a roadway, the plaintiff must prove: (1) that the thing that caused the damage was in the DOTD's control; (2) that the thing that caused the damage amounted to a defect that presented an unreasonable risk of harm; and (3) that the defect was the actual cause of the plaintiff's damages. It is well settled, however, that the DOTD's duty "does not extend to protect motorists against harm which would not have occurred but for their grossly negligent operation of a motor vehicle." The tragic case of Lyncker v. Design Engineering, Inc. provides an illustration of this point.

During the afternoon of September 15, 2004, William Lyncker consumed a substantial quantity of of beer as he made preparations to his home, boats, and business equipment for the arrival of Hurricane Ivan in New Orleans. Around 8:00 PM, Lyncker decided to drive to a family member's restaurant to help with hurricane preparations there. The route to the restaurant would take him eastbound on Highway 90, which had earlier that day been closed by the DOTD approximately three miles east of the intersection with Highway 11 due to the installation of a floodgate in anticipation of the rising waters. Lyncker made his way toward Highway 90 on Highway 11 where, upon encountering a barricade, he drove off the road and over an earthen levee to avoid it. Lyncker continued toward the intersection with Highway 90 when he came upon additional warning signs and more barricades. Nevertheless, Lyncker turned onto Highway 90 and drove at speeds approaching 75 MPH. Lyncker did not slow down when he approached the caution-lit steel barricades that the DOTD had installed in front of the floodgate. In fact, Lyncker struck the barricades without even applying his brakes, and one of the barricades became trapped under Lyncker's truck. Still, Lyncker continued speeding towards the Highway 90 floodgate as the barricade dragged beneath his truck. Lyncker's truck was discovered crashed into the floodgate, which had collapsed. Lyncker was killed in the collision, and subsequent toxicology reports showed that Lyncker had a blood alcohol concentration of 0.21 percent (the legal limit is 0.08 percent) at the time of the accident.

Lyncker's family filed a wrongful death action against Design Engineering, Inc., the Orleans Parish Levee District, and the DOTD alleging negligence in the construction and maintenance of the floodgate, as well as failure to warn. The DOTD filed a motion for summary judgment based on the Louisiana Code Section that provides immunity when a driver sustains damages or death while driving under the influence of alcoholic beverages or drugs and is over 25 percent negligent. La. Rev. Stat. ß 9:2798.4. The district court granted the motion, finding that "any reasonable fact finder would be compelled to find [Lyncker] in excess of twenty-five percent negligent." On appeal, the Fourth Circuit noted that "since Mr. Lyncker crashed through the lighted barriers while heavily intoxicated and without slowing down, in this case, no warnings may have been enough to prevent the accident." The court agreed with the district court's finding that there was no issue of fact over Lyncker's being at least 25 percent at fault and further concluded that "Lyncker's intoxication is the sole and proximate cause of his fatal accident." Accordingly, the court upheld the district court's granting of summary judgment to DOTD under the immunity statute.

Lyncker's unfortunate situation demonstrates the law's effort to compare the relative fault of the parties when it is possible that more than one person's negligence caused an accident. In this case, it was not even necessary for the court to examine the potential negligence on the part of the DOTD because the court felt, as a matter of law, that Lyncker was at least a quarter responsible for this sad outcome due to his heavily intoxicated driving; under the Louisiana statute, this finding was the only one necessary to provide the DOTD immunity for the plainitiffs' claims.

Continue reading "Drunk Driver's Claim Against the Louisiana Department of Transportation Fails Under the "Gross Negligence" Exception" »

According to Houma Today, a 17-year-old boy from Cut Off was killed on October 22nd when the car he was riding in struck a utility pole. The boy, Edward Domingue, and his 15-year-old girlfriend were going to pick up pizza and movies when she lost control of the vehicle. Questions remain regarding why the girl was driving since she did not have a driver's license. Further, the girl's mother and owner of the vehicle, Gillian Reynolds, adamantly stated that she would not allow her daughter to drive. While the facts are still not clear, civil liability for the accident and Domingue's death are also still up in the air.

Louisiana Revised Statute 32:52 states that no person shall operate a vehicle or allow another person to operate a vehicle owned or controlled by him if the driver is unlicensed. However, the simple fact that doing so is a statutory violation does not necessarily imply that the owner, or the unlicensed driver, was negligent. In Enlow v. Blaney, the Louisiana Third Circuit held that even though a 14-year-old was not licensed to drive, the fact that the vehicle's owner allowed her to drive without a license was "immaterial and irrelevant" to the issue of negligence where her "conduct in driving without a license was not a cause-in-fact of the accident." Following its rationale in Enlow, the Third Circuit ruled that even when the owner allows an unlicensed minor to drive her vehicle, she will not be liable for a resulting accident where evidence suggests that the minor was competent to drive and the fact the driver was unlicensed is not the cause-in-fact of the accident.

However, under general common law principles, if the owner knowingly allows a person who is incompetent to drive, such as by repeated instances of negligent or reckless conduct, the owner may be liable for negligence. This usually requires that the incompetent driver be "on a mission" for the owner, acting as the owner's agent or employee, or the owner is negligent for entrusting his vehicle to the incompetent driver. In order to establish negligent entrustment, a plaintiff must show that the vehicle's owner knew or should have known that the borrower is incompetent to drive. One case of particular interest is the 1993 case of Jones v. Western Preferred Casualty Co. In that case, the Louisiana First Circuit found that a 19-year-old vehicle owner did not negligently entrust his car to a 13-year-old where the 13-year-old had only driven a few times before, had been drinking, and the 19-year-old had never met the 13-year-old before that day.

In the 1953 appellate case Nelson v. Carriere, the Louisiana Third Circuit held that age or inexperience driving cannot "brand" someone incompetent to drive a vehicle or be presumptive evidence of negligence. This is not the case in all jurisdictions. For example, courts of several states including Illinois and Alabama automatically presume that a vehicle owner was negligent in entrusting her vehicle to an unlicensed driver. See, e.g., Chiniche v. Smith (Ala. 1979). In Louisiana, proof of inexperience, past negligence or reckless in driving, or failure to obey driving laws can provide evidence of incompetence but, as noted previously, cannot create a presumption of negligence or negligent entrustment.

Additionally, it is unlikely that Mr. Domingue's conduct in allowing his unlicensed girlfriend to drive will reduce her or her mother's civil liability. In Faulk v. Champagne, the Louisiana Third Circuit found that a passenger was not liable for permitting an unlicensed driver to operate a vehicle since the passenger had no legal duty to prevent the driver from driving and the passenger did not know or should have known that the driver was incompetent. It is not clear whether this was the case here. However, neither Mr. Domingue's girlfriend nor her mother will automatically be negligent simply because she was unlicensed. Instead, a court will consider inexperience as one of many factors in deciding any civil liability.

If you or someone you know was involved in a vehicle accident with unclear liability, consult with an attorney today in order to preserve your legal rights.

On the day after Thanksgiving in 2003, plaintiff Nicol Hannie's vehicle was struck by another vehicle driven by defendant Ray Guidry in LaFayette, Louisiana. Due to the holiday shopping sales offered that day, traffic was very heavy. Hannie, who had just finished eating at a restaurant, attempted to make a left hand turn onto a five lane roadway. The middle lane of the roadway was a turning lane. Because traffic was completely backed up in the two travel lanes immediately closest to Hannie, several cars in those lanes graciously created a space for Hannie to traverse and waved him through. As Hannie cautiously passed through the space created in the immediate two lanes, he inched onto the turning lane to complete his left hand turn. However, as soon as he began to pass through the turning lane in order to merge onto the distant travel lanes, he was struck by Guidry, who was allegedly using the turning lane as a passing lane and also traveling at a high rate of speed.

At trial, the district court agreed that Guidry was impermissibly using the turning lane as a passing lane. They reached this conclusion by noting that Guidry's intended turn-off was nearly 700 feet away from the scene of the collision, and he could have stayed in the inside travel lane several hundred feet further before entering the turning lane. Furthermore, the high rate of speed Guidry was driving, as witnessed by others, tended to show that Guidry may have been impatient and did not want to remain in the travel lanes before commencing his left handed turn in the turn lane. Accordingly, the district court held Guidry to be 100% at fault for Hannie's resulting injuries.

Dissatisfied with the verdict, Guidry appealed to the Third Circuit Court of Appeals of Louisiana. Guidry denied all fault and contended the Court of Appeals should review the district court's finding under a de novo standard of review.

De Novo is a Latin expression that means "anew." When a litigant asks an appellate court to review a district court's findings de novo, that litigant is asking the appellate court to completely disregard the district court's legal conclusions, and to instead apply its own findings based on the record before it. Because the district court is the fact-finding court, the appellate court typically must defer to the district court's evidentiary and testimonial findings, unless those factual findings were clearly wrong. However, an appellate court does not have to defer to the district court on questions of law.

In Louisiana, an appellate court may review a lower court's legal conclusions de novo only if the district court's legal error was prejudicial. A legal error is prejudicial if it "materially affects the outcome of the trial court's fact finding process and deprives a party of substantial rights."
In the instant case, Guidry argued that the district court applied an impermissible legal standard by enunciating a two-car-length rule for the execution of a left turn in a center turn lane. Guidry argued that this two-car standard was not based on any existing legal standard and was created out of whole cloth by the district court.

While the Third Circuit Court of Appeals agreed that the two-car standard was a misstatement of law insomuch as no such brightline rule previously existed, it concluded the underlying general idea that a car should only travel a limited distance in a turning lane to be legally sound. Moreover, the reviewing court found that even if the two-car standard constituted legal error, it still would not have prejudiced Guidry. Witnesses reported Guidry operating his vehicle in an "erratic" manner, at speeds "way too fast for the turning lane." Consequently, Guidry was nevertheless operating his vehicle in a negligent manner at the time of the collision, supplying an alternative basis for the district court's conclusion that he was 100% at fault. Accordingly, the appellate court affirmed the verdict in favor of Hannie.

As Hannie v. Guidry shows, a case is never fully resolved until an appellate court has denied a request for or reviewed an appeal. It is thus important to be aware of which review standards an appellate court must apply.

Continue reading "Hannie v. Guidry Spells Out Standards for DeNovo Appeal " »

On the evening of August 2, 2005, Latiffany Dunn slowed her car as she approached the intersection of Pearl and Washington Streets in Homer, Louisiana. As she came to a stop, a vehicle driven by Latonya Harris pulled up beside Dunn's vehicle. Shatara Harris, Latonya's sister, was a passenger in Latonya's vehicle. Shatara got out of the car and approached Latiffany's vehicle. The two women argued, and Shatara took a swing at Latiffany. As Shatara walked back to Latonya's vehicle, Latiffany drove off and then circled back. As it passed by, Latiffany's car clipped the open passenger door of Latonya's vehicle. Shatara, who was attempting to get into the car at the same time, was injured when the door slammed closed against her. Latiffany did not stop her car, but instead drove to the Claiborne Parish Sheriff's Department where she filed a report about the incident. A sheriff's deputy interviewed Latiffany, transported her to the Homer Police Station, and then arrested her on a charge of aggravated second degree battery. Latiffany later pled guilty to simple battery. Shatara filed suit against Latiffany and her auto insurance carrier, U.S. Agencies Casualty Insurance Company, Inc. for damages arising from her injuries. U.S. Agencies filed a motion for summary judgment on the grounds that Latiffany intentionally struck Latonya's vehicle, which would have excluded coverage by the terms of the policy. The trial court granted the motion and dismissed U.S. Agencies from the suit; Shatara appealed.

Under Louisiana law, an insurer may limit the coverage it provides by the terms of its policy, but the insurer has the burden of proving that the facts and circumstances support the exclusion. Furthermore, "a summary judgment declaring a lack of coverage under an insurance policy is not appropriate unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts, under which coverage could be provided." The policy provision that U.S. Agencies pointed to excluded coverage for bodily injury or property damage "caused by an intentional act" or "caused ... while engaged in the commission of a crime." U.S. Agencies argued that Latiffany committed a crime (as established by her guilty plea to the battery charge) and also that she intentionally struck Latonya's vehicle to injure Shatara.

With respect to the crime exclusion, the Second Circuit noted that the policy defined "crime" as "any felony or any action to flee from, evade or avoid arrest or detection by the police or other law enforcement agency" (emphasis added). The court concluded that the crime exception was inapplicable because Latiffany's guilty plea to simple battery--a misdemeanor offense--did not fit the policy's definition. Furthermore, the court explained that Latiffany's guilty plea was not determinative as to her intent to strike Shatara. While a guilty plea from a criminal matter is admissible in a civil case, it is not conclusive evidence. The court acknowledged that "summary judgment is appropriate only if there is no factual dispute as to intent," which, after reviewing the trial record, was "not the case here." The court reasoned, "we cannot say as a matter of fact that the record shows [Latiffany] intended to hit either Latonya's vehicle or Shatara with her vehicle... Even though Latiffany pled guilty to simple battery, we find that the record shows that a genuine issue of material fact exists as to whether Latiffany's actions constituted an intentional act." Accordingly, the court reversed the trial court's granting of summary judgment and remanded the matter for further proceedings.

The Harris case reflects Louisiana's position that "exclusionary provisions are to be strictly construed against the insurer with any ambiguity construed in favor of the insured." Presumably, this is to help protect consumers who purchase insurance by preventing insurance companies from attempting to avoid coverage through vague language in the policy. Insurance companies will nevertheless put forth whatever arguments may be available to avoid payouts, so a plaintiff should always obtain experienced counsel when pursuing an auto accident or other claim where a defendant's liablility policy is in place.

Continue reading "Homer Car Wreck Case Examines Insurance Policy's Treatment of Intentional Injury" »

The parties to a legal dispute, such as the payment of damages resulting from a car accident, can reach an agreement between themselves to resolve the matter and avoid litigation. This agreement, under which the parties "give and take" to arrive at a solution that is satisfactory to both, is called a compromise. Under Louisiana law, a compromise is considered a contract which must be made in writing, but there is no specific requirement as to the form. What is important is that a compromise resolves only those differences that the parties clearly intend to settle, which under general contract law requires a "meeting of the minds."

Louisiana courts have recognized that a check can serve as a compromise if it recites that it is in full payment for all claims and the check is endorsed and deposited by the payee. But as the parties in the case American Century Casualty Company v. Sale, discovered, the courts will scrutinize a compromise based entirely on the endorsement and deposit of a check to ensure both parties' objectives were in alignment.

On August 9, 2008, a car accident occurred between Dr. Charles F. Sale and Michelle Barett. Barrett, who was at fault, was driving a vehicle owned by her parents and insured by American Century Casualty Company (ACCC). A short time thereafter, an ACCC representative contacted Sale and discussed settlement. ACCC then mailed the following to Sale: a letter describing the steps that Sale would be required to take to resolve the claim; a settlement and release form; and a settlement check in the amount of $1,820. The enclosed letter directed Sale to sign the release and return it to ACCC, at which point ACCC would issue the settlement check. (Although the letter indicated that a settlement check would follow a "properly executed release," ACCC erroneously mailed all three documents in the same envelope at the same time to Sale.) The front of the settlement check included the following text: "CHARLES SALE, ONLY: IN F/F SETTLMT/RELEASE OF ACCC/... BARRETT FROM ANY/ALL CLMS/LNS ON D/L 8/9/08, CLM 10995-9." Sale, finding the amount of the settlement check insufficient, put the documents aside. Later, Sale's wife discovered the check and deposited it without his knowledge. When Sale filed suit against Barrett and ACCC in August of 2009, ACCC filed a motion for summary judgment contending that Sale had previously compromised and released his claims against the company and Barrett by endorsing and depositing the settlement check issued to him. The trial judge granted summary judgment in ACCC's favor and found that Sale had released all future personal injury claims. Sale appealed.

The Second Circuit declared that "a review of the entire record, including the settlement documents sent to Dr. Sale by ACCC, indicates that there was not a 'meeting of the minds' between Dr. Sale and ACCC as to what they intended when the purported compromise was reached." Additionally the court found, "it is apparent from the statements made by Dr. Sale during his deposition that he believed that his claims would not be settled or compromised until he signed the release form," which he never did. The court noted that the wording of ACCC's letter, which directed Sale to sign the release if he wanted to accept the offer to settle the claim for the amount on the enclosed check, further indicated that an endorsed check, alone, was insufficient to form a compromise. Accordingly, the court reversed the trial judge's decision and remanded the case for a trial.

The Sale case serves as a reminder that even out-of-court settlements can be confusing and potentially disastrous for plaintiffs who proceed without solid legal advice. Although Sale was ultimately able to move ahead with his lawsuit, the appellate process added considerable delay to the resolution of his claims. Had Sale referred the letter from ACCC to his attorney immediately, this appellate proceeding would likely never have been necessary.

Continue reading "Court Examines the Use of a Settlement Check as a Compromise and Release " »

In injury cases, general damages aim to compensate the victim for mental or physical pain and suffering, inconvenience, loss of quality of life, or other "intangibles." Because these damages cannot easily be quantified in monetary terms, the jury (or judge in a bench trial) is tasked with assessing and awarding them. Louisiana courts have 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." Furthermore, "[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient."

Given this deferential standard, it is relatively rare for a jury's award of damages to be modified on appeal. Nevertheless, the case of Case v. Shelter Insurance Company, No. 10-302 (La. App. 3d Cir. 2010) offers an example. On May 22, 2006, Patricia Case was driving her car on Oday Road in Loreauville. She came upon a tractor being driven slowly by Barry Frederick, an employee of Burt Oubre Farms. Just as Case pulled into the oncoming lane in an effort to pass the tractor, Frederick began to make a left-hand turn across her path without signaling. The vehicles collided approximately two feet across the center line of Oday Road. Following the accident, Case experienced severe back pain that ultimately required her to undergo a lumbar microdiskectomy and laminectomy in December of 2007. Case filed a lawsuit against Frederick, Oubre Farms, and the farm's insurance carrier, Shelter Insurance Company. At trial, the jury found Case 25 percent and Frederick 75 percent comparatively negligent and awarded Case $49,999.98 in general damages. Case appealed this judgment, arguing that the jury improperly found her negligent and that the general damages award was insufficient.

On appeal, the Third Circuit quickly dispensed with Case's argument concerning liability, holding that the jury did not commit "manifest error" in reaching its conclusion. Next, turning to the issue of the damages award, the court applied the abuse of discretion standard. The court examined the extent and severity of Case's injuries and reviewed the various cases relied upon by Case to substantiate that the jury's award was "abusively low." Despite the good recovery Case had made by the time of the trial, the court nevertheless found that "when considering the record as a whole, we are required to find the award of $49,999.98 in general damages below the range of the jury's discretion." The court referred to its prior decision in Este v. State Farm Insurance Company, 676 So.2d 850 (La. App. 3d Cir. 1996), where it held that "an award of $75,000 was the lowest amount within the court's discretion for the aggravation of a pre-existing, asymptomatic, spondylosis and bulging disk that did not warrant surgery." Thus, the court reasoned, "[i]f a simple bulging disk and aggravation of an asymptomatic spondylosis can be awarded a minimum of $75,000 in general damages, an active herniation of a disk with surgical intervention warrants a general damage award of $100,000.00; any amount below that would be considered an abuse of the jury's vast discretion." Accordingly, the court amended the jury's damages award to $100,000.

The Third Circuit's decision to increase Case's general damages award was based on a very detailed review of the facts and a comparison to existing case law on the issue of general damages awards for back injuries to Cases's circumstances. Nothing less persuasive than this favorable combination of both facts and law is likely to convince an appellate court that a jury has abused its discretion in setting a general damages award.

Continue reading "Court Amends Jury's General Damages Award in Loreauville Car Wreck Case " »

According to state police, and reports in LaPlace's L'Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

Here, the families of the deceased passengers may be able to bring a claim against the driver if the evidence supports that he is at fault for the accident, that is, if he acted negligently. Negligence occurs when someone's action falls below the appropriate standard of care for a given situation and that action or inaction hurts someone else, to which they owed a duty. A driver has a duty his passengers (and other drivers on the road) to obey the law and drive at an appropriate level of speed. If he did not, and that action was the actual and proximate cause of the passengers' deaths, he was negligent. A variety of damages can be collected in this type of wrongful death action, including: funeral and medical expenses (actual damages), as well as compensation for the wages the victims would have earned, and compensation for pain and suffering.

In addition, Louisiana is a pure comparative negligence state. La. Civ. Code Ann. Art. 2323. This means that individuals' damages are reduced by whatever percentage they are deemed at fault for an accident. So, if the driver is found to be 80% at fault for the death of his two passengers due to his negligent behavior, but the deceased passengers are found to be 20% at fault for not wearing their seat belts, damages the survivors of the passengers can collect from the driver will be limited to 80% of the total damages recoverable. The question is, does not wearing a seat belt constitute negligent behavior? There is a good chance it might..

Under Louisiana law, seat belt use is mandatory for anyone riding in a car. If an individual breaks a law, it is easier to prove that they have acted negligently under the doctrine of negligence per se. While in a typical negligence action, it must be proven that the defendant owed a duty to the claimant and that duty was breached, causing injury to the claimant, in a negligence per se case the elements of duty and breach are presumed. Now obviously, no one will be bringing a negligence claim against the deceased drivers arguing they are at fault for the accident here. However, their negligent action would be taken into account when it is time to apportion fault between the parties.

If you were injured in an accident and are not to blame, it is important to choose an attorney who will be able to convince a court that you were not at all fault for any of the damages, in order to maximize your recovery. At the Berniard law firm our attorneys are experts in accident injury law and would be happy to talk to you about your case.

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 " »

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.

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" »

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" »

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 " »

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

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

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

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

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

To download the application, click here.

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

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

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

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

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

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

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

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

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

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

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

"A trier of fact's decision to hold the testimony of one of two or more witnesses more credible does not constitute manifest error. Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Rosell v. Esco, 549 So. 2d 840 (La. 1989).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Third, was the duty breached?

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

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

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

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

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

On July 24th in Lincoln Parish, two trucks collided on I-20 leaving one dead and several injured. While traveling east on I-20, a Chevy Suburban attempted to pass a GMC truck hauling a livestock trailer. The Chevy Suburban swerved right hitting the GMC truck and both vehicles ran off the road. The vehicles struck the tree line, the Chevy Suburban striking several trees before stopping. The front-seat passenger of the Chevy Suburban was pronounced dead at the scene. Two backseat passengers suffered minor injuries, and the 16-year-old driver of the Chevy Suburban was in critical condition. The driver and passenger of the GMC truck sustained moderate injuries. Three cows in the livestock trailer died in the crash.

It is unclear whether the accident was due to a mechanical defect, driver error, or another cause. Louisiana State Police say that impaired driving is not a likely cause of the accident, but they are awaiting routine toxicology tests to make the final determination. All passengers were wearing seatbelts, and so far no citations have been issued.

The determination of whether the accident is due to a mechanical defect or driver error is critical to determine the claims to file and the parties to bring a lawsuit against. An attorney hired by an injured party may investigate whether the owner of the vehicle negligently maintained the vehicle. To establish negligence, the attorney must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

The plaintiff may also have a claim for damages under the theory of products liability. Under a products liability cause of action, the focus is on the supplier's liability for a product that caused physical harm to a person or to property. For products liability the same injury may be brought on several theories including intentional torts, negligence, strict liability, or liability based on breach of an express or implied warranty.

As the accident report indicated, driver error may have caused the accident. If a claim is brought in negligence, the driver is held to a "reasonable person" standard of care. The question placed before the court in these cases is "Would a reasonable person behave this way under the same or similar circumstances?" In this case, the driver of the vehicle was 16 years old. Minors are held to the reasonable person standard of care of a person of similar age, intelligence, and experience. However, when minors engage in adult activities, such as driving vehicles, the child is held to the same standard as an adult.

It is also possible that a lawsuit may be filed under a wrongful death cause of action for the front seat passenger that was killed in the accident. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, "If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death." Negligence claims may also be brought on behalf of the injured passengers.

Claims may also be filed for property damage that was sustained by the vehicles, the damaged treeline, and the cows that were killed. Property damage is recoverable in negligence, with the recoverable damages in negligence cases remaining compensatory rather than punitive.

If you are involved in an accident, remember that you will need an experienced and knowledgeable attorney to represent you in order to navigate the complexity of the claims to file so that you are compensated for your injuries.

Continue reading "Lincoln Parish Truck Crash Demonstrates Need for Attorney Assistance " »

Car accidents oftentimes are not simple, clear-cut events that lend a clear idea of who was right and who was wrong. Instead, many times it is left to a court to decide what the circumstances were that led to the collision and the amount of responsibility each party had for it occurring. As a result, because no court is perfect, individuals who have been harmed due to another party's acts are left out in the cold because they could not prove their case. However, each year new technology comes out that provides a better opportunity for plaintiffs, and their attorneys, to prove their case and receive the compensation they deserve.

One firm, Advanced Research and Technology (ART) Corporation, works with the very technology required to prove cases. Utilizing Finite Element Analysis (FEA), commonly referred to as computer simulations, the company provides compelling engineering evidence to explain the cause of a crash-related case. FEA's due this by calculating the kinematics of the investigated accident (speeds, relative motion, different parts of accident) and structural analysis (where the cars collided and relevant stresses, strains, failures, energy displacements, etc.). By analyzing this information, FEA can help plaintiffs win cases related to auto and motorcycle crashes, airbag and seatbelt related problems, structural analysis relating to accidents or blasts, slip and fall cases, fuel tank and pipeline pressure analysis and a variety of others.

FEA simulations are widely recognized by the engineering community as a reliable and advanced tool for solving structural dynamics, crash, blast and impact-related matters. Automotive companies often use FEA for car testing in the same way that highway safety systems are designed using the technology. The reliability of FEA comes down to the simulator being able to develop accurate formulations or equations to explain how the millions of small elements involved in a collision react when variables are at a certain set. Because of its ability to determine how a car will behave in a collision and the effects of a collision, technology experts are able to move backwards and determine what variables were in place to lead to the results suffered.

Being able to go backwards and determine the cause is crucial in cases where the alleged cause of the problem/accident has been removed from the scene. For example, should a faulty guardrail cause a fatality, a simulation may be required should that guardrail be removed along with the wreckage of the cars and be discarded. What's more, the simulations done and formulas executed by the computer are not something easily, or affordably, done by hand. What's more, there are a plethora of court cases where FEA techniques were used as evidence in a court. This admissibility, coupled with the cost-effective manner it can determine an accident (often 20% of the cost of a single crash test), makes this technology incredibly important.

Technology like the one described above is a key component of complex litigation and it is important that you hire an attorney willing to use state of the art techniques to help prove your case. To speak to an attorney about how to best prove your car collision case, call our offices today. For more information on this technology, head to www.artengineer.com.

In June 2007, Chadwick Dukes and his daughter, Skylah, were driving on La. Hwy. 983 in West Baton Rouge Parish. Their car was struck by a vehicle driven by Paul Declouette and owned by Sheryl Rogers. The following May, Dukes filed a lawsuit on behalf of Skylah seeking to recover damages for the injuries she sustained in the crash. Dukes named as defendants Declouette, and the Imperial Fire and Casualty Insurance Company, which was Declouette's as-then unknown insurance carrier.

Shortly thereafter, Imperial Fire was identifed and admitted that it had issued an auto liability policy to Declouette that was in effect at the time of the accident. Dukes added Imperial Fire as a named defendant and then signed an agreement to release Declouette and Rogers from the suit. As a result, on November 20, 2008, the trial court entered a judgment to dismiss Dukes's claims against Declouette. Imperial Fire immediately filed a motion for summary judgment, asserting that it could not be found liable because Dukes released its insured customer (Declouette) by agreement without a reservation of rights. Imperial Fire relied on the language of the insurance policy, which obligated the company to pay damages for any injuries for which

An insured person becomes legally responsible because of an accident arising out of the ownership, maintenance, or use of a covered vehicle.

Imperial Fire reasoned that Declouette could never be found liable for the accident because he was specifically released by the agreement with Dukes; given that Declouette could never be legally responsible for the accident, neither could his liability insurance carrier. The trial judge granted the motion for summary judgment, dismissing all claims against Imperial Fire, and Dukes appealed.

In the case styled Dukes v. Declouette, No. 2010 CA 0045 (La. App., 2010), the First Circuit Court of Appeals examined the language of the release agreement between Dukes and Declouette. The court concluded that "although Dukes did not specifically reserve the right to proceed against Imperial Fire in the settlement, it is evident that [Dukes] intended to release ... Declouette in his capacity as an insured under that policy." Because Imperial Fire was not even involved in negotiating the release, the court reasoned, the company should not be able to benefit from the release.

In addition, the court affirmed that "Louisiana law has consistently held that a liability insurer and its insured are co-debtors in solido," a term that means that two or more parties are each completely and equally responsible for what is owed. Further, under modern law, "a reservation of rights is not required to be included in a release to protect a settling plaintiff's right to pursue claims against non-settling solidary obligors." In essence, the court concluded, it was not necessary for Dukes to include a statement in the release agreement reserving his right to sue Imperial Fire even after releasing Declouette. Thus, the court reversed the summary judgment in favor of Imperial Fire and sent the case back for a full trial.

Although the Court of Appeals sided with Dukes in this case, it is clear that the outcome could have been vastly different if the language of the release had been drafted in some other way. The courts are not sympathetic to plaintiffs who agree to release potential defendants from liability only to turn around later and attempt to sue. And inadvertence does not get far with the courts. For this reason, it is critical to have an experienced attorney on your side through every step of the litigation process to ensure that any settlement agreements or releases you may enter into are as strategically beneficial as possible.

Continue reading "West Baton Rouge Parish Car Accident is a Cautionary Tale for Plaintiffs Who Sign Releases " »

In the town of Duson, a mother of a child slain in a car accident is frustrated and discouraged by the legal system after years of delay in the prosecution of the responsible driver. What's more, there now remains the possibility that charges may be lessened against the man charged in her son's death. This situation is an extremely unfortunate one but does illustrate the differences between civil and criminal litigation, as well as the standards involved.

21-year-old Shawn Lancon was killed when the driver of the vehicle in which he was a passenger drove their vehicle into oncoming traffic while attempting to make a left turn. The driver, the man charged in Lancon's death, was under the influence of alcohol and drugs at the time of the accident. This accident took place in 2007. Three years later, delays in going to trial are still anticipated and now the defense is trying to lessen the criminal charges from vehicular homocide to a first-offense OWI. The OWI charge comes with considerably less jail-time, leading to the anger being expressed in the community.

The reasons for all of these issues are varying. The defense is attempting to lessen the criminal charges by insisting that the blood alcohol level is not high enough for a vehicular homicide, and also that the positive drug test should be excluded because the drugs detected by the drug test does not prove that the drugs were "active" at the time of the accident. Procedural delay is slowing the calendar for trial, due to courts having to postpone cases in Lafayette, Acadia, and Vermillion parishes due to a legal dispute within the court system regarding the allotment of judges.

The delay is importantly going to also delay the plaintiff's ability to sue in civil court.
After a criminal conviction, the plaintiff is often able to bring suit in civil court under
negligence and wrongful death causes of action. In civil court, the plaintiff may bring suit under a negligence cause of action. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the acual and proximate cause of the injury, and damages.

Also under civil law, wrongful death statutes provide a legal remedy for being responsible for the death of another human being. Historically, under common law, a wrongful death cause of action was not available and only criminal law was an option. Under statutory law, however, a person can be held responsible in civil court in addition to criminal court for wrongful death.

The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2. The Code Article states

If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death." Under the statute, among the claimants that may bring suit under the statute include the mother of the deceased child in this case.

The burden of proof in a civil case is also a lesser standard when compared to criminal cases. In a civil case, the plaintiff must prove guilt by a preponderance of the evidence. For example, in a negligence case the plaintiff must establish by a preponderance of the evidence that a duty of care has been breached. The burden of proof in a criminal case has a much higher threshold. In a criminal case the plaintiff must prove guilt beyond a reasonable doubt. The lower threshold when suing the responsible party directly makes it easier for the plaintiff to recover in civil court.

If you have a case in criminal court, remember that a civil case can also be brought and that you will need a knowledgeable attorney experienced in civil law matters to assist you in recovering the damages that you deserve.

John C. Elliott, 26, of Zavalla, Texas was driving a 1999 GMC pickup east on LA.8 and he lost control while passing another vehicle in a curve. He collided with several trees before the truck stopped on La. 8 facing the other direction. Elliot was injured seriously and taken to Lake Charles Memorial Hospital. There were two passengers in the car.

As reported in the Leesville Daily Leader

His two passengers,19-year-old Susie Dixon and an infant, both of Zavalla, Texas, suffered minor injuries and were transported to Byrd Regional Hospital.

Police believe Elliott was impaired by narcotics. He was charged with driving while impaired, child endangerment, careless operation, no driver’s license, and passing in a no passing zone.

In addition to having to deal with criminal charges, Elliott will most likely face civil repercussions from the accident. In Louisiana the person found to be at fault for an automobile accident is financially responsible for all damages created by the accident. Damages that can be collected include compensation for medical expenses, property damage, and pain and suffering. The situation as to who is at fault may be more complicated when there are two drivers who contribute to the accident. Because Louisiana is a comparative fault state if an injured party is found to be partially at fault for his accident, his damages are reduced by his percentage of fault.

Here, however, there was only one car involved in the accident. If the driver, is found to have acted negligently in causing the accident he will be found at fault and will be liable for injuries to his two passengers. Negligence means that the driver’s standard of care fell below that a reasonable person would be expected to exercise in the situation. Negligence has several elements, proving them requires research and an excellent understanding of the facts of the case. There are other places to look for support for a fault finding as well. For example, if a police report has been filed and there is any mention of a traffic law violation or careless driving it can show the driver was at fault.

A civil lawsuit is very different from criminal charges. A criminal case is filed by a state prosecutor and if convicted the defendant can face fines, incarceration, or other penalties. If a defendant is found guilty in a civil suit they must pay restitution to the plaintiff who was injured by their negligent action. In a civil lawsuit the plaintiff must prove by ‘preponderance of the evidence’ that the defendant committed the negligent action and that the action caused damages. Preponderance of the evidence means that the plaintiff’s version of the facts is more likely to be true than not true. This standard is lower than the standard required to be successful in a criminal case.

If you have been injured in a car accident and believe that your injuries were caused by the negligent action of another person, you may be entitled to be compensated. It is vital that you have a hardworking, dedicated attorney on your side.

In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not "compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances." Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

1. The bystander must be closely related to the injured person. Specifically, the bystander must be the spouse, parent, grandparent, child or grandchild of the injured person.
2. The injured person must suffer a significantly grave harm so that it’s reasonable to expect the bystander to suffer serious mental anguish or emotional distress from witnessing the incident.
3. "The bystander’s mental anguish or emotional distress must be severe, debilitating, and foreseeable," as quoted from Article 2315.6.
4. The bystander’s mental distress must immediately, or almost immediately, follow witnessing the defendant’s actions that caused the direct victim’s injury.

The best way to explain the basics of the bystander recovery rule is by example. A good example of failing to satisfy the bystander rule is the Trahan case. In Trahan, a child was in the hospital. The doctor negligently elected to not treat the child and told his parents that the child would be fine. The parents then took the child home, where he later died.

Although the first three requirements of the bystander rule were met, the fourth requirement was not: The parent’s mental anguish from witnessing their child die occurred well after the doctor’s negligent failure to provide medical treatment. "There was no observable harm to the direct victim that arose at the time of the negligent failure to treat, and no contemporaneous awareness of harm caused by the negligence."

Conversely, the following is a good example of satisfying the four elements of the bystander recovery rule. A mother is playing in her front yard with her eight year old son. A drunk driver veers off the road and into their yard, killing the child but leaving the mother untouched. Unlike the Trahan example above, here, the mother suffers from mental anguish immediately after the defendant’s action of crashing his car into her son.

If you’ve witnessed a traumatic event and, as a result, suffered mental anguish, it’s imperative that you seek legal representation. Cases involving bystander recovery involve many legal questions, such as whether the mental anguish was foreseeable, whether the mental anguish was sufficiently contemporaneous and more.

Continue reading "Understanding the Law: Bystander Recovery After Tragedy Strikes" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In a recent Court of Appeals decision, plaintiff Ryan George appealed a jury verdict that rejected his damage claim following his 2007 car accident in Lafayette. The Court of Appeals affirmed the jury's decision and found that defendants did not improperly challenge jurors during the selection process while one of Mr. George's challenges was deemed to be discriminatory.

Trials can be made or broken if the jury is sympathetic to one side or the other. This case shows how important it is for plaintiffs to have an experienced attorney involved in jury selection process. A good attorney will not only make the right decision about who should be struck from a jury via peremptory challenges, but will also be prepared to object to the other sides' challenges if they are a pretext for discrimination while being able to provide a articulable non-race reason for excluding should one of their own challenges are questioned.

The accident occurred at the intersection of Simcoe Street and Evangeline Thurway in Lafaeyette when a vehicle driven by Horace McBride rear ended a vehicle driven by Richard Benoit, Jr. as Benoit was turning left. McBride was working for Helix Energy Solutions Group, Inc. and driving his employer's vehicle. George was a passenger in Benoit's vehicle and was injured, requiring extensive treatment.

Mr. George settled claims against Benoit. Then he sued McBride, his employer, and the employer's insurer. At trial, the jury found that the Benoit's negligence caused the accident and dismissed the claims against the remaining defendants. On appeal, George asserted that the trial court erred in allowing defendants to exercise a peremptory challenge on three African American jurors without a race neutral explanation, in granting a challenge to George's peremptory challenge of a white male juror after articulating a race neutral explanation, not ordering a new trial due to an inconsistent jury verdict, and in not granting a new trial due to inconsistencies in the first and second jury verdicts.


With regard to the first two assignments of error, George objected to several of the defendants' peremptory challenges and argued they were excluding blacks from the jury and his objections were denied. He also made peremptory challenges to white jurors and the plaintiffs successfully objected in one instance. In the end the jury included six white and six black people.

The Equal Protection clause of the Constitution prohibits discrimination based on race in the exercise of peremptory challenges during jury selection. The U.S. Supreme Court has set up a three step process for determining if peremptory challenges are constitutional:

First, has the party opposing the peremptory challenge must make a prima facie showing that the striking party was exercising the challenge base don race. Second, once the showing is made, the striking party must provide a race neutral explanation for the strike. The reason need not be persuasive, or even plausible, just not discriminatory. Third, considering all relevant circumstances, the opposing party must prove that there was discriminatory intent in the use of the peremptory challenge.

The trial court was satisfied with plaintiff's "racially neutral" explanation of why they chose to challenge four African American jurors. The reason given to exclude the first juror, Mr. Doucet, was that he's had neck surgery and was in pain for quite awhile after, and therefore would be sympathetic to plaintiffs. As for the second juror, Martinez Cole, defendants stated that he was inattentive in responding to his questionnaire and therefore would be a passive juror not be involved in negotiations with other jurors. According to defendants, the third juror, Maxine Thibodeaux, had a husband who had been disabled for many years and disabled members of her family, and as such would be sympathetic to plaintiffs. According to the Court of Appeals the trial courts finding that these reasons were not a pretext to discrimination was not clearly erroneous and should not be overturned as they were consistent with the facts provided during jury questioning. With respect to George's use of peremptory challenges he used five of his first six challenges to strike white males form the jury. The trial court did not accept his explanation for the sixth peremptory challenge of Michael Fontenot. Mr. George's purported reason to exclude Fontenot from the jury involved a belief that Mr. Fontenot had very strong feelings about things such as CDL drivers and owner-operators, which would cause him to unfairly favor the defendants and influence the jury. Mr. Fontenot indicated in questioning that his brother in law has a CDL license and he took defensive driving courses while in the military. Because George did not challenge other jurors with a CDL or who had taken defensive driving classes, and also due to inaccuracies in his explanation itself, the Court of Appeals agreed with the trial court and found there was discriminatory intent in his attempt to exclude Mr. Fontenot. The Court of Appeals similarly found that the trial court did not err in instructing the jury on the inconsistency in the jury's verdict or in denying George's motion for a new trial. As such the dismissal of the claims stands.

This case is a great demonstration of how selecting a proper attorney for the case is paramount. Be sure, should you find yourself needing legal advice, that you properly analyze and inspect the track record and success of your attorney. In doing so you can prevent any sort of procedural item that is overlooked by a less qualified lawyer.

According to a recent article in Baton Rouge's Times Picayune, drivers who fall asleep at the wheel and cause an accident could be in more trouble than ever before. Earlier this month a Committee of the Louisiana State Legislature approved a bill that would create the new crime of involuntary vehicular homicide.

A Galiano couple who lost their son in an accident caused by a driver who fell asleep at the wheel provided tearful testimony leading up to the unanimous vote in favor of House Bill 628 in the Committee on the Administration of Criminal Justice. The next step for the bill will be debate on the House floor.

Tina and Anthony "T-Boy" Charpentier lost their 33 year old son when a truck driver fell asleep at the wheel. Anthony doesn't think the bill is tough enough but hopes it will at least make guilty drivers think about what they have done.

Under the legislation, involuntary vehicular homicide is defined as:

The killing of a human being by someone who fails to maintain control of a boat, car, truck, or any aircraft, watercraft or motor vehicle by falling asleep whether or not the offender has the intent to cause death or great bodily harm.

The penalty for involuntary vehicular homicide includes up to 250 hours of community service, a lesser penalty than the up to five year jail sentence sought in an earlier proposed version of the legislation. According to Ellis "Pete" Adams of the Louisiana District Attorneys Association said that DAs may have trouble proving that a driver was asleep at the wheel if the bill is passed. Unlike proving violation of a law against intoxicated driving, proving sleepy driving does not happen via a blood or breathalyzer test. Most likely, prosecutors will need rely on witness testimony about how much a particular driver slept leading up to the accident and whether or not they have a propensity to drive while sleepy.

Every state and the federal government currently aim to cut down on these kinds of accidents by regulating commercial drivers' hours of services and restricting how long truck drivers can be on the road. If this law passes, however, it will be the first law that could affect how long private drivers can be on the road.

Currently, New Jersey is the only state with a "drowsy driver law." Many like the Charpentier's, would like Louisiana to be added to that list in hopes to cut down on the number of accidents attributed to drivers who fall asleep while driving. According to data from the Louisiana Highway Safety Commission, in the last three years there have been more than 4800 accidents attributed to drivers who were asleep or blacked out on Louisiana roads, 27 of which ended in fatalities. The problem stretches nationally as well. A 2002 survey of the National Sleep Foundation reported that nearly 2 in 10 drivers said they had actually fallen asleep at the wheel in the past year.

The civil implications are obvious with a new crime being introduced by the legislature. Families who lose a loved one due to someone falling asleep at the wheel may now have a stronger case given the new criminal penalty. A finding of guilt in criminal court can have strong implications on a civil suit that could follow. What's more, civil lawsuits can be difficult to navigate if an attorney does not have a lot of experience. Whether in employing technical experts who can carefully outline the complex events that took place on that tragic day or using various technologies to best represent your interest, our firm has the experience you need to prosecute any matter of case you might find yourself hampered by.

A two-car collision on Highway 117 in Natchitoches Parish led to a lawsuit and an appeal regarding the amount of damages awarded, among other things. On the morning of October 25, 2002, Edward Raymond was travelling north on Highway 117, returning from work. He was a firefighter at Fort Polk. That same morning Stephen Taylor was traveling south on the same highway. Taylor was on his way to New Orleans to get a sea card to work on tugboats. He was detouring to his girlfriend's mother's house in Leesville to pick up his birth certificate. It was raining that morning and during Taylor's maneuver to pass a loaded log truck, he saw the headlights of Raymond's vehicle. Taylor attempted to drive onto the shoulder to avoid a collision, but Raymond also tried to avoid a wreck by driving onto the shoulder; the cars crashed head-on and Raymond died as a result of the accident. The site of the crash was in a no-passing zone. The jury determined that Taylor was 75% at fault and the Louisiana Department of Transportation and Development (DOTD) was 25% at fault (mostly for failing to place a no-passing pennant sign at the start of the no-passing zone where the accident occurred).

The jury awarded the following damages

(1) $5,421.20 for funeral expenses; (2) $1,904.00 for medical expenses; (3) $1,514,747.79 for loss of past earnings, future earnings, and earning capacity; (4) $50,000.00 for the conscious pain and suffering and anguish of Mr. Raymond; (5) $1,500,000.00 for the damages suffered by Barbara Raymond for the loss of her husband; and (6) $750,000.00 to each of [Raymond's] four children for the loss of their father.

These include two types of damage awards: general and special damages. Special damages are those which have a "ready market value." They can usually be determined with relative certainty and include costs such as medical expenses and lost wages. These are "out of pocket" costs and usually have some concrete evidence to determine an appropriate amount. When there is an appeal regarding the amount of special damages the appellate court must review the record as a whole and satisfy a two-step process in order to disturb the findings at the trial level. First, there must be no reasonable factual basis for the trial court's conclusions. Second, the finding must be clearly wrong.

General damages refer to most other damages, typically subjective loss and suffering, that cannot be fixed to a monetary amount with certainty. There are no receipts or bills to indicate how much a person should be compensated with regard to general damages, though that does not mean damages for suffering are not justified. When an appellate court reviews general damages the charge of the appellate court is not to decide what it considers to be the appropriate reward. The appellate court should only review the exercise of discretion that is allowed to the trial court. Just because an appellate court would have set the damage award at a different amount does not mean the award should be disturbed. Even when review of the record supports that the lower court abused its discretion, the appellate court may only change the award to the extent of lowering it to the highest point which is reasonable or raising it to the lowest point which is reasonable within the discretion the lower court is allowed (basically, the appellate court may bring the award to just within a range reasonable to the record).

A judge or jury at the trial level is given a great deal of discretion to assess the amount of damages to be awarded. The trial level decision makers have the benefit of live witnesses and experiencing the trial. The appellate court sees only the "cold" record. Plus, the function of the trial level judge and jury is to determine questions of fact and the appellate court should be careful not to make its own fact findings. Thus it is important for potential plaintiffs not only to present a claim well at the trial level, but also to afford a convincing line of evidence so that any challenge to the amount of damages at the trial level will be well supported for review at the appellate level. Plaintiffs should seek a skilled attorney to ensure that the damages sought are supported with hard evidence (like receipts and bills when possible) and other convincing evidence when there are no market equivalents to determine losses or other costs.

Victim John Deshotels learned the hard way what happens when you don't have a an attorney represent you in an accident injury claim. He took his case to trial unrepresented and lost. Even after getting an attorney the damage was done and he lost again in a recent Court of Appeals decision.

Plaintiff John Deshotels appealed the trial court's granting of involuntary dismissal of his case against Nicholas J. Fontenot and his insurance company. Deshotels alleged he was rear ended by a car driven by Fontenot and injured.The case went to trial and following Deshotels' presentation of his evidence, the insurance company moved for involuntary dismissal pursuant to La. Code Civ.P. art. 1672 (B)

Louisiana Code of Civil Procedure Article 1672 (B) states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party... may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Trial courts have discretion to grant an involuntary dismissal if, after weighing the evidence, they determine the plaintiff has not proved their claim by a preponderance of the evidence, or the "more likely than not" standard.

In this case Deshotels was able to establish at trial that he and Fontenot were in an accident and that Fontenot had $5300 worth of repairs done to his vehicle. The parties' stories conflict as to how the accident occurred. Deshotels testified that he suffered pain over his entire body after the accident and went to see Dr. Tommy Fontenot complaining of extreme redness on his left ankle and extreme pain in his neck. Deshotels also testified that he took hydrocodone for the pain. However, he was unable to produce bills for doctor visits or his medication. The evidence was insufficient to prove that Fontenot acted negligently, and the Court of Appeals found that the trial court did not err in that finding.

The Court of Appeals also disagreed with Deshotels argument that the trial court should have allowed him to introduce the traffic ticket Fontenot received after the accident. It is well established that a civil traffic citation is inadmissable to show a party was charged with a traffic violation.

Car accident victims may feel they have an open and shut negligence case against someone who has hit and injured them. However, proving the elements of negligence requires factual investigation, potential expert witnesses, and importantly, an attorney well versed in the law and pitfalls that could potentially arise. If a plaintiff does not prove that it is more likely than not a defendant acted below the appropriate standard of care and that action caused injury and damages, the case could be dismissed, as happened here. If you have been injured in a car accident, it is very important that you have an accomplished, experienced attorney to help you navigate the often messy legal waters.

According to a report from talkofthetown.com, a low-speed traffic circle, or "roundabout," is slated to be installed at the end of Jackson Street Extension in Alexandria. The intersection links Jackson Street Extension with Twin Bridges Road, Lodi Road, and Horseshoe Drive. The initial plan called for a four-way stop sign, but Nick Verret, District 8 engineer-administrator with the Louisiana Department of Transportation and Development (DOTD), said a roundabout would offer better safety and efficiency than a four-way stop or a traffic light signal.

The debate over the most effective traffic control devices for intersections has been ongoing throughout the last century. As far back as 1934, a study published in the Journal of Social Psychology reported that approximately 25 percent of drivers who approached an intersection with visible cross traffic failed to come to a full stop at the stop sign. Another study revealed that when there was no approaching traffic, only 14 percent of drivers fully stopped their cars. This frightening figure comes from reserach conducted in 1968 in Berkeley, California, which was published in the Law & Society Review. For a recent discussion of these studies and the efficacy of stop signs generally, see this article from Slate.

Roundabouts, on the other hand, enjoy a significantly better reputation for safety. A study published in the American Journal of Public Health in 2001 looked at crash statistics for 24 intersections across the U.S. that were converted from stop sign or traffic light signal controls to roundabouts. Traffic accident rates at the intersections dropped dramatically following the conversion, including a 90 percent reduction in the number of crashes involving fatal or incapacitating injuries. Roundabouts also offer improvements to traffic flow. The DOTD's Verret estimates that the Jackson Street Extension roundabout will result in a "50 percent increase in capacity" for the intersection," which will help to reduce the long queues that occur during peak times. The trade-off is that roundabouts are typically more expensive to install and maintain than signs or signals. The Jackson Street Extension roundabout will cost $2.34 million, with $1.6 million funded with federal dollars and $740,000 funded by the city of Alexandria.

According to the Federal Highway Administration, more than one-fifth of all traffic fatalities happen at intersections. For this reason, it is critical that drivers remain alert at all traffic crossings, regardless of the type of intersection or signal device. A driver's general duty of care extends to proceeding through intersections with caution while keeping a lookout for oncoming traffic. Failure to do so can easily give rise to a negligence claim.

Continue reading "Traffic Circle Plan Chosen for Alexandria Intersection to Increase Safety " »

On May 7, 2010, the Donaldsonville community was saddened when 20 year-old Ryan Johnson was killed in a car accident when his car flipped after he collided with a semi-truck on LA 70. While this loss is tragic, it is also a reminder that accidents involving semi trucks should be treated differently that regular car accidents and usually require assistance from an attorney who has experience resolving these cases.

In a typical fender bender with another car, an attorney may not be required. After the collision, both drivers make sure they don't have any injuries, call the paramedics if needed, exchange contact and insurance information, have the police make a report if necessary, and they settle the cost of damages through their insurance companies. Often in these situations, especially in small communities, the drivers know each other and can easily call the other if they need any additional information that they didn't get immediately after the accident. It is a fairly straight-forward process.

Accidents between a car and a semi truck are different and require the driver of the car to be informed and consult an attorney soon after the accident. Truck drivers haul cargo across the country for a living. When they are involved in an accident, you are not just dealing with the other driver, but the company they work for. Trucking companies have similar liability insurance as the average driver; however, these companies are better equipped to handle accidents because they have already prepared for this situation. Trucking companies also have attorneys working to protect their assets that may only work on these types of cases. Trucking companies and their insurance providers are both business and have the goal of giving you the least amount of money for your settlement. It is important that you have someone fighting equally as hard on your side.

Since truck driving is an occupation, truck driving companies are required to ensure that their drivers meet specific obligations. First, professional truck drivers are required to have a specialized truck driving license and have the training, knowledge, and experience to safely drive their massive vehicles. Second, there are laws that limit the number of hours a driver can be on the road each day. These laws attempt to prevent the number of accidents that are caused by fatigue. Your attorney will request a copy of the driver's log book to see if they were complying with this law. Third, trucking companies are required to properly maintain their vehicles and maintain a record of when their trucks are services. Your attorney will request a copy of the service records for the truck involved in the accident to see if the trucking company contributed to the accident by not performing the required maintenance. Semi trucks are also equipped with Electronic Control Module (ECM) devices similar to "black boxes" on airplanes. The ECM device can provide information like how fast the truck was traveling when the accident occurred. It is imperative to have this information preserved; therefore your attorney needs to request it soon after the accident. The sooner you hire an attorney, the sooner they can request these records, and the less likely it is that these records will be lost or misplaced.

Given that a semi truck is as much as 25 times bigger than the average car and can weigh over 80,000 pounds, it is imperative that your collision be closely inspected by a legal expert. In doing so, an individual can have claims of negligence, traffic violations, comparative fault and a wide variety of other avenues examined. By limiting the amount of time between the accident and an investigation, evidence is more readily available. What's more, an attorney will often employ an expert of these types of accidents who can help testify and explain what happened in the unfortunate event. In having a lawyer set to all of these various legal mechanisms, the victim of an accident can focus on other issues and allow their legal representative to do all the legwork for them. Whether by pursuing a more fair settlement than the extremely low one offered by the insurer or taking the trucking company to court, hiring an attorney is the best option when facing the daunting task of achieving justice for such an accident.

Amber Bridges was driving her parents' 2002 Hyundai Sonata without their permission when she was involved in an accident with a 1992 GMC pickup truck owned by Tommy McClain at the intersection of Millhaven Road and Highway 594. She was attempting to turn left onto Millhaven road and was issued a citation and later found by the trial court to be solely responsible for the accident. Amber had received her offical driver's license just two weeks before. The car she was driving was owned by her father, Terry, and insured by American through Advanced Planning Insurance Company.

Although both cars were insured, American denied coverage for the liability of Amber. When Terry obtained the automobile insurance in 2006, Amber was 16 years old and had a driver's permit. However, Terry failed to disclose that Amber was a resident of the household over the age of 14. State Farm, the insurer of McClain's car, paid the fair market value of the totaled pickup truck. State Farm and McClain then brought a civil suit for damages against Terry, Amber, and American.

La. R.S. 22:860 states:

A. Except as provided in Subsection B of this Section and R.S. 22:1314, and R.S. 22:1315, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it from attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless either one of the following is true as to the applicant's statement:
(1) The false statement was made with actual intent to deceive.
(2) The false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer under the policy.

When seeking insurance, the purchaser has a duty to inform the insurer of all the facts relevant to a decision about writing a policy. An insurance policy may be voided if (1) the insured made a false statement in the insurance application, (2) the false statement was material, and (3) it was made with the intent to deceive. The insurer carries the burden of proving that the insured misrepresented a material fact with the intent to deceive.

Despite the omission, the trial court found and the appellate court affirmed that the policy could not be voided. Bernice, the representative of Advanced who completed the application for insurance, knew Terry, his background, his children and their ages, and was informed by Terry that the vehicle in question would eventually be driven by Amber when she was a senior in high school. Terry mistakenly believed that Amber would not have to be on the policy until she was allowed to drive the vehicle. Bernice had Terry sign the insurance application using an electronic signature pad without presenting the application to Terry for review. If an agent by mistake, fraud or negligence inserts erroneous or untrue answers to the questions contained in the application, those representations are not binding on the insured. The courts determined that Terry could not have intentionally withheld the information with the intent to deceive because he trusted the representative to prepare the application, had no intention of hiding the fact that Amber would eventually drive the car, and was not shown the application to review its accuracy.

Disputes like this arise quite often with insurance companies. By carefully analyzing the situation and consulting with a legal expert, you can make sure your rights aren't violated by a company looking out for their bottom line.

Early in the morning hours of Saturday, February 6th, 20 year old Jamane M. County of Montgomery was driving a 2002 Honda Civic South on U.S. Highway 71 when he lost control of the car. According to an article on thetowntalk.com,

The car ran off the right side of the road, vaulted across a creek, hit an embankment on the opposite side and overturned.

County and two of his passengers sustained moderate injuries and were taken to nearby hospitals; County to Nathitoches Regional, 18 year old Kayla Monroe to Louisiana State University (LSU) Medical Center, and a male juvenile to Rapides Regional Medical Center. A third passenger,19 year old Kimber Vanantwerpen, was injured seriously and also taken to LSU Medical Center.

This accident raises some significant legal issues. As here, when a driver, who may have been acting improperly, is in an accident and passengers are injured, it is important that each party’s legal rights be protected. Despite a friendly relationship between the driver and his passengers, it may be appropriate for one or more of the passengers to bring a negligence claim against the driver. If it can be proven that the driver owed a duty to one or more of his passengers, the duty was breached, and passengers’ injuries resulted from the breach, the driver may be held liable and may be forced to pay damages. If more than one passenger is considering a claim it may seem like a practical, money saving idea for them to hire one attorney to represent them. However, this is not a decision to be taken lightly. It is important that each person considering legal action have an attorney who is able to protect and represent their particular interests. Attorneys are sometimes even restricted by law as to who they may represent if an improper conflict of interest exists.

Under the Model Rules of Professional Conduct, (ethical guidelines which govern the actions of attorneys and have been adopted in Louisiana) an attorney shall not represent a client if doing so involves a concurrent conflict of interest. A concurrent conflict of interest exists if the interests of one current client are directly adverse to the interests of another current client. (Model Rules of Professional Conduct, Rule 1.7 (a)(1)). This rule absolutely prohibits one attorney from representing both parties in the same lawsuit. However, an attorney may represent two different parties that are suing the same person (co-defendants) if they believe they can do so adequately and if all parties give informed consent.

Even if parties give consent to the same representation in a case like this one and no rules are violated, it may still not be in the best interest of each party because their interests may differ too substantially. If you were a passenger in a vehicle that was in an accident and you have been injured the Berniard law firm would be happy to help you navigate your rights. Our attorneys are experienced in the complexities that can arise in these types of cases. Please contact our office Toll-Free at 1-866-574-8005.

Wrongful death. Negligence. We hear these terms thrown out all the time when we read the newspaper or watch TV. Both terms have a similar connotation. We know something "bad" happened to someone, something that should never have happened. However, most people don't really know what these terms mean.

The legal concept of negligence means that someone has suffered physical and/or mental injuries caused by someone else being careless. Negligence is not derivative of an accident - someone else was not diligent and that failure to act properly was the cause of the injury. An example is featured on when a family suffered damage to their home because of an inspector's negligence in failing to report defects in the house.

A wrongful death claim arises when the victim died as a result of someone's negligence. This type of claim, the victim's surviving family is eligible for the amount of damages. This differs from a typical negligence claim because there, the actual victim is alive and able to receive the damages. Originally, a wrongful death claim was nonexistent because presumably the claim for damages died with the victim. Today, luckily, that is not the case and the grieving family is eligible for compensation for their loss.

The elements for a wrongful death claim are the following: (1) the death was caused by the conduct of the defendant; (2) the defendant was negligent for the victim's death; (3) there is a surviving spouse, children, beneficiaries or dependents; and (4) monetary damages have resulted from the victim's death.

For a regular negligence claim the four elements are similar except instead of "victim's death" the appropriate term is "victim's injuries": (1) the defendant owed a duty to the victim; (2) the defendant breached the duty owed to the victim; (3) The defendant caused the victim's injury; (4) damages/injury have resulted.

Types of wrongful death claims include auto accidents, medical malpractice, and chemical leaks. Negligence claims include those same examples and can include less serious and less life-threatening acts such as a slip and fall.

There is typically a statute of limitation of one year for wrongful death claims. That means the family of a victim has up to one year after the victim's death to file suit against the defendant. One reason for a statute of limitation is to ensure the memories stay fresh in the minds of all parties involved. Therefore, there is not an abundance of time to act as soon as you suspect foul play when considering a loved one's death. The law requires you act fast. If you suspect a loved one died due to another's negligence, or you yourself were injured as a result of another's negligence, call the Berniard Law Firm Toll-Free at 1-866-574-8005 and an attorney will be more than happy to help you.

Residents of Monroe, Louisiana, and the surrounding area are fortunate that a train derailment appears benign. The train derailed the evening of Saturday, February 20th, in the vicinity of Highway 165. Fortunately, other than the damage sustained by the derailed cars and the train tracks, the accident seems to have caused little harm.

According to a report by Zack Southwell that appeared on thenewsstar.com, the cause of the accident was initially unclear and under investigation. But Caldwell Parish deputies have assured the public that the accident poses no danger to the surrounding area. The report quoted Chief Deputy Glen Gilmore as saying, "We had (hazardous materials) crews out here also, making sure the wreck caused no danger. They declared the area safe shortly after midnight [on Sunday]." A representative of Union Pacific indicated that "most of the cars that derailed were empty," but she added that some were carrying a non-hazardous fuel oil additive.

The folks living near the accident site are indeed lucky that the derailed cars were not carrying more hazardous substances. Train derailments are not always so harmless. For example, during a 2008 derailment near Lafayette, the damaged BNSF cars leaked 11,000 gallons of toxic hydrochloric acid onto the ground surrounding the accident site. As reported by newsinferno.com, the acid gathered in yellow pools and emitted vapors that formed a toxic cloud around over Lafayette. The spill forced the evacuation of 3,000 local residents, shut down businesses and closed roads until officials could neutralize the acid and remove all contaminated soil. In addition to lost business and property damage resulting from the accident, several folks required treatment for medical ailments related to the spilled acid.

Large-scale accidents like trail derailments have the potential to cause significant damage and harm, if not handled properly. As illustrated by the 2008 BNSF derailment in Lafayette, chemicals spilled during such accidents can be responsible for many types of injuries – to persons, to property, to business. Hopefully those affected by the Lafayette incident were able to recoup financial compensation for any injury they sustained as a result of the accident. Fortunately, it appears at this time that no chemicals or other hazardous substances leaked from the Union Pacific cars that derailed near Monroe. However, those in close proximity to the site should still keep a close eye on anything out of the ordinary on their property or with their health.

According to a recent article in New Orleans' Times Picayune, Kenneth Allain of Tailsheek pled guilty last month to charges that he permanently injured a 75 year old woman by ramming his car into her while under the influence of prescription drugs. The accident occurred on Louisiana 41 about three miles south of Louisiana 21 in northeastern Tammany Parish. The injured woman, Edythe Proze, was driving in front of Allain and stopped to make a left turn when Allain continued driving, slamming into the back of her vehicle. Troopers at the scene determined that Allain was intoxicated and took a blood sample.

Allain pled guilty to first degree vehicular negligent injuring and was sentenced to ten years in prison: five years for the crash (the max allowed under state law), and five years because he was a repeat offender.

Proze was taken from the scene with moderate injuries. She is now faced with "life-changing" injuries and is living in an assisted-living facility.

Intoxicated/drunk driving is incredibly dangerous and leads to hundreds of deadly accidents a year. In 2008 in Louisiana there were 912 traffic fatalities, 404 of which were alcohol related alone.

Intoxicated driving is taken very seriously in the eyes of the law as well. Not only do offenders like Allain face harsh criminal penalties, but their civil liabilities can be sizable. Typically someone who causes an accident is responsible for the damages created by the accident, which can include being forced to pay medical expenses of those injured, cover the cost of damaged property, and pay for wages that are lost while injured persons are recovering. In addition, when drugs or alcohol are involved, Louisiana law provides for even more damages. Punitive damages, or those meant to punish someone who cause an accident and are awarded in addition to other damages, may also be recovered.

Punitive damages can arise anytime driving has been impaired by some type of chemical substance, whether it be alcohol, narcotic drugs, or even medication prescribed by a physician. Under Louisiana Civil Code Article 2315.4, proving a claim for punitive damages requires proof of three elements:

1. The driver was intoxicated or had consumed enough of an intoxicating substance to lose control of his mental and physical faculties.
2. The intoxication was a cause in fact of the resulting injury. This means that but for the intoxication the resulting injury would not have occurred.
3. The driver had wanton or reckless disregard for the safety of others.

If you or someone you love was injured in an accident caused by an impaired driver, you too may be entitled to collect punitive damages beyond medical expense, lost wages, and other ordinary damages collected in car accident cases. Proving not only the elements of your injury claim but requirements for punitive damages as well will require the help an experienced attorney well versed in this area of law and committed to conducting an intense factual investigation

Imagine the following scenario: you are involved in a fender-bender in the parking lot of the grocery store. Your car is taken to the body shop for repairs. Since you need transportation to get to work and other places in the mean time, you rent a car from the local agency. When picking up the car, you'll no doubt be offered liability insurance through the agency--at an additional cost, of course. There may also be coverage available through the credit card you use to pay for the rental. And then there is the policy you maintain on your regular car. Does it extend coverage to the rental?

Louisiana law recognizes a "temporary substitute vehicle," which is commonly defined by insurance companies as a short-term substitute for a car that is out of service due to breakdown, repair, servicing, theft, or destruction. State statute requires automobile insurance companies to "extend to temporary substitute motor vehicles ... any and all such insurance coverage in effect in the original policy." La. R.S. 22:681. In other words, the auto insurer must provide the same coverage to the rental car as was already in place on the regular vehicle.

The recent case of Smith v. Louisiana Farm Bureau Casualty Insurance Company, No. 45,013, Ct. of App. of La., 2d Cir. (2010), explored the definition of "temporary substitute vehicle" in detail. On the morning of May 28, 2005, Brian Smith was driving a 2003 Nissan Altima on U.S. Highway 425 in Morehouse Parish. At the same time, Joshua Pruett was driving a 1998 Dodge Ram pickup truck on the highway in the opposite direction. Pruett's truck was pulling a utility trailer containing crawfish and ice that had been loaded in Crowley. The ball on the truck's trailer hitch was too small for the trailer and Pruett did not use any safety chains to ensure that the trailer remained attached to the truck. The trailer eventually disconnected from the truck, at which point it crossed the highway's center line and collided with Smith's Altima. Smith died at the scene from the severe trauma he sustained in the accident.

Ordinarily, Pruett hauled crawfish for his employer, Broubar, Inc., in a larger Dodge pickup truck that is equipped with a refrigeration cooler biult into its bed. However, on the day of the accident, the larger truck was being repaired, so Pruett's employer substituted the smaller truck. The smaller truck could not hold a cooler for the crawfish in its bed, and so the utility trailer was used instead.

One of the issues before the court on appeal was whether Pruett's truck and trailer, together, would be considered a "temporary substitute vehicle" for purposes of insurance coverage. The insurance carrier who issued the policy for Pruett's usual truck argued that the trial court erroneously treated the truck and trailer as a single unit. However, the Court of Appeals noted that

in order for the [smaller] Dodge to function as a temporary substitute vehicle for the [larger] Dodge, it needed to pull a trailer that could hold a cooler to keep the crawfish refrigerated... Accordingly, we find no error in the trial court's conclusion that the [smaller] Dodge truck and the trailer together constituted a temporary substitute vehicle operating as a single unit.

The Smith case demonstrates the willingness of Louisiana courts to interpret the "temporary substitute vehicle" concept broadly in a way that can significantly benefit plaintiffs. If insurance coverage is not extended to temporary substitute vehicles, a motorist who is injured by a driver operating a substitute vehicle could seek damages only from the vehicle's owner. Even in a situation like the Smith case, where a corporation owned the vehicle, the owner may not have sufficient assets to fully compensate the victim. By extending insurance coverage whenever possible, the courts make it more likely that an accident victim can be made whole.

Continue reading "Tragic Auto Accident in Morehouse Parish Illustrates Insurance Coverage Requirements for Substitute Vehicles" »

Accidents happen and when they do people wonder just how much can be considered when calculating damages. Many wonder "what happens when someone who is already injured is in an accident?" What's more, if someone already had a bad knee, for example, can the defendant be held responsible for further damage to that knee. The Eggshell Plaintiff Rule helps explain the aggravation of existing injuries.

In a 2000 case, the Louisiana Supreme Court set out the Eggshell Plaintiff Rule but still reversed the Court of Appeal' finding of damages because the trial court's decision of no aggravation of injuries did not meet the high manifest error standard.

In April 1996 Mary Touchard drove a friend to Carnecro to pay her electric bill. While leaving the parking lot of the power company, Touchard's car was hit from behind by a pickup truck driven by Ted Breaux. Ms. Touchard did not have the ambulance called and complained of a headache at the scene while Breaux claimed he was not entirely at fault for the accident and that vehicular impact was minimal. Ms. Touchard sued Breaux and his insurance company, however, claiming she suffered mental and physical injuries in the accident.

Ms. Touchard was a bit of a unique plaintiff in that she had an extensive history of both car accidents and physical and mental impairment, the timeline of which is as follows:

1961-automobile accident causing fractured cervical vertebra 1965-automobile accident causing concussion, whiplash, chest wall contusions, and a severe traumatic lumbosacaral strain 1972-accident causing concussion, cervical and lumbar strain and requiring surgery Continued complaints of pain through 1970s, second surgery in 1979 1980s-continued severe pain--causing irritability and moodiness 1987-admitted to clinic for drug and alcohol abuse due to pain medication 1987-fourth accident 1993-started counseling at Cypress hospital after attempting to take her own life. Treated for anxiety disorder, post traumatic anxiety, and depression resulting from chronic pain.

Under the Eggshell Plaintiff Rule, defendants take plaintiffs how they find them and are responsible for all natural and probable consequences of their tortious conduct. If a defendant's negligent action aggravates a pre-existing injury or condition, he must compensate the victim to the extent of the aggravation. This means that if Mr. Breaux's conduct in driving the car that struck Ms. Touchard's car was found to have aggravated her pre-existing mental and physical injuries, despite how bad they may have been, he must compensate her for the aggravation.

The trial court in this case heard testimony from Ms. Touchard's doctors and several of her friends. The testimony was consistent in stating that she had emotional problems before and after the accident. Her psychiatrist was questioned as to whether she exhibited any objective signs of exacerbation after the accident and he replied that his findings (that she had) were only based on subjective information provided to him by Ms. Touchard. He also pointed to several factors that occurred after the accident that could have contributed to her depression. While Ms. Touchard's friends testified that she changed after the accident, their description of her behavior was consistent with that of prior to the accident. As such, the trial court found she did not suffer new injuries or an aggravation of existing injuries as a result of Mr. Breaux's conduct.

According to the Louisiana Supreme Court, these findings were supported by the record and were not clearly wrong. Therefore, because reviewing courts may only change decisions that are clearly wrong or show manifest error and may not substitute their judgment for the judgment of a trial court, they erred in reversing the trial court's findings that Ms. Touchard's injuries were not exacerbated in her accident with Mr. Breaux. As such, the Louisiana Supreme Court reversed the Court of Appeals and reinstated the trial court's finding of no liability.

In cases involving pre-existing injuries, it is important for an individual who has been harmed to hire an attorney that can conclusively help them receive the judgment they deserve. By utilizing expert testimony and navigating the perilous and tricky nature of litigation, the proper attorney will successfully get for his or her client the judgment they deserve. With extensive experience in this field, the Berniard Law Firm is willing to discuss over the phone or in person the legal rights of a potential client and help them receive the compensation they deserve for suffering as they did from the mishap.

Distracted driving is a huge problem in Louisiana. In fact, according to a study of the Louisiana Highway Safety Commission, at any given time, at least one of every eleven cars on the road is driven by someone using a cell phone. The Study was commissioned by the legislature in an effort to help policy makers understand how dangerous mixing cell phones and driving truly is. Specifically, a survey of street corner observers noted that on average 9.2 percent of drivers were using hand-held phones at any given time, slightly more than the national average. A summary of the complete results of the study can be found here.

Distracted driving leads to traffic accidents and facilities, and according to other studies, distracted drivers are at increased risk of crashing. However, despite a threefold increase in cell phone use in the last decade, crash trend data in Louisiana and nationwide has decreased overall. This does not mean that using a cell phone while driving is not a distraction or that distracted driving is not incredibly risky. Rather, some questions exist over how much the distraction contributes to a crash. Drivers tend to slow down when talking on the phone, which may be the reason crashes overall have not increased. The reality is that the risk posed by driver phone calls is difficult to measure, particularly distinguishing between handheld and hands-free phone calls.

Many different solutions have been proposed to deal with the distracted driving problem. For example, a Baton Rouge firm is selling a new device that actually restrict cell phone calls and messaging when the user's vehicle is moving. State and federal legislators have proposed changes as well.

Current Law in Louisiana and Proposed Changes

Right now it is illegal in this state for any driver to text. What's more, it is illegal for novice drivers and those 17 and younger to use the phone at all. Some wonder, though, if that is enough. State Rep. Austin Badon of New Orleans doesn't thing so and is bringing a bill this year that would ban hand-held cell phone use by drivers across. The same proposal failed last year. Badon discussed his legislation with the Times Picayune in a recent article and said:

There's more credible evidence this year that Louisiana needs to go hands-free... Louisiana needs to be on the front end of passing this legislation.

Badon is not the only one with something to say about this hot button issue. Rep. Neil Abramson of New Orleans has filed a bill that would make it easier to find fault in a collision if one of the drivers was using a hand-held communication device. If passed, this legislation would affect those who go to trial to recover damages after a car accident occurs because it would make it easier to prove negligence. Rep. Charmaine Marchand Sitaes, also of New Orleans, has filed a bill to prohibit licensed commercial drivers from using hand-held phones while on the road. Given that the current texting law only calls for a traffic violation as a secondary action when someone is pulled over for another infraction (like speeding), Sen. Butch Gautreaux of Morgan City has proposed legislation to create a primary offense for drivers who text.

Proposed Changes to Federal Law

U.S. Senator David Vitter also has ideas. Vitter is currently co-sponsoring a bill that offers federal incentives to states that outlaw hand-held phone calls and texting while driving. The bill would direct the U.S. Secretary of Transportation to make $94 million in federal grants to states that enact such laws so that they can start national education programs on the issue and make other traffic safety improvements.

Louisiana's other Senator, Mary Landrieu, is co-sponsoring a bill to prohibit drivers from texting, taking away federal highway funds from states that don't pass their own legislation.

Overall it is important to know that liability for accidents can lead to culpability issues and problems with insurance companies or, at worse, the law. Through discovery or fact-finding efforts on the part of their attorney, someone involved in an accident can find out answers to what caused a collision. By doing this, responsibility can be attributed to the individual texting while driving and justice for the victim of a client can be achieved.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court of Appeal has expressed:

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

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

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

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

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

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

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

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

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

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

Accordingly, the court concluded that,

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

.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Special Damages

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Third, the defendant’s act caused distress.

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

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

As reported by WBRZ News 2 Louisiana, 17 year old Ramie Martinez of Greenwell Springs was killed in a recent two vehicle crash in Denham Springs. The tragic accident happened on Lockhart Road near Cockerham Road. According to state police, Cherish D. McConn, 26, was impaired and driving east when she crossed the center line and her 2000 Chevy Cavalier struck the side of a 1994 GMC truck. The two people in the truck had minor injuries but were not hospitalized.

Ramie and one other passenger was in the car with McConn. The other passenger received minor injuries and was transported to the hospital. Ramie was pronounced dead at the scene and later identified. McConn was also injured and hospitalized. She will be arrested for reckless operation, negligent injury, Driving While Intoxicated (DWI), and vehicular homicide once she is released.

McConn will likely have more to deal with than criminal charges in the aftermath of this terrible tragedy. The family of Ramie Martinez may be entitled to collect compensation against McConn in a civil action as well since she was at fault for the accident that killed their daughter. Through a wrongful death claim, survivors can recover the cost of medical expenses, funeral expenses, lost wages or benefits, or even compensation for pain and suffering. Because McConn has been charged with DWI, the family of the deceased may be able to collect additional damages as well.

In Louisiana Civil Code Article 2315.4 it states:

In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

The exemplary damages mentioned here are punitive damages or damages that are meant to punish the party at fault (in this case the intoxicated driver). Punitive damages are awarded in addition to actual damages or special damages. Punitive damages can be collected anytime there was impaired driving, not just when the impairment was due to alcohol, if the following three elements are proven:

-The driver was intoxicated and lost normal control of his mental and physical faculties
-The intoxication was a cause in fact of the injury in question. Cause in fact does not require that the intoxication was the only factor, but at least a substantial factor in the injury.
-The intoxicated driver had wanton or reckless disregard for the safety of others. This means that the driver was consciously indifferent to the consequences of his actions.

Whether or not these elements are present is a question of fact that is given to the jury to decide. This can make proving a punitive damages claim very difficult. A toxicology report showing the defendant had a high BAC level is helpful. Expert witness testimony is also often used.

Continue reading "17 Year Old Killed in Denham Springs Car Accident: DWI to Blame " »

Schools Tackle Prom Drinking Risk
Schools around the country attempt to confront the issue of student drunk-driving, especially in the spring, around prom season. One way to try to prevent teen drinking and driving is to talk to kids about the dangers while they are still young. Many high schools bring in a speaker, often a family member of someone killed by a drunk driver, or even a sorrowful drunk driver himself.

But a Baldwin high school, West St. Mary, located in St. Mary Parish, chose an even more attention-grabbing method. Instead of an assembly, the school involved students, Baldwin fire rescue workers, St. Mary Parish Sheriff's deputies, Louisiana State Troopers and even a hearse from a local funeral home to put together a mock car accident.

Many students wiped away tears as they watched, and some walked away before the entire situation played out, unable to bear the emotion.

Legal Issues
According to The Daily Iberian

Assistant District Attorney Vincent Borne also spoke to the students, explaining in an accident such as the staged event, the driver of the vehicle at fault could potentially be sentenced to 30 years in prison, and faced a minimum prison term of two years if convicted for vehicular homicide while driving drunk.

Indeed, a drunk driving accident has many legal consequences, even beyond the criminal law penalties that people usually consider. A victim of the crash will most likely need legal representation in order to handle insurance claims and disputes and navigate the justice system if damages are to be sought.

Damages
Louisiana law permits a victim injured by an intoxicated driver to recover punitive damages. Punitive damages are damages that a jury or judge can award against a drunk driver or his or her insurer in addition to actual damages such as medical costs, lost earnings, pain and suffering, loss of enjoyment of life, disfigurement, etc.

In order to prove a claim for punitive damages for impaired driving, Louisiana Civil Code Article 2315.4 requires proof of three (3) elements:

1. That the driver was intoxicated or had consumed a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties;
2. That the intoxication was a cause-in-fact of the resulting injury; and
3. Wanton or reckless disregard for the safety of others.

These elements of proof are questions of fact to be determined by a judge or jury.

Our firm is happy to West St. Mary and other proactive high schools help educate teenagers to the horrors of drinking and driving in hopes of reducing these tragic accidents.

Car accident claims often hinge on whether or not the defendant owed a duty to the injured party. If a duty was owed, it was breached, and the breach caused an injury, liability for negligence exists. However, if there was no duty, the claim is cut off.

The important question is then, when does a duty exist? Generally speaking, people and entities have a duty to act reasonably in every particular circumstance. Reasonableness can be difficult to define and it often depends on the relationship between the parties. For example, a taxi cab driver may have a duty to exercise more care in driving their fares than someone dropping a friend off at work. Sometimes state or federal laws and regulations help to define when a duty exists. If a party has violated a legally defined duty, bringing a successful negligence claim against them may be easier.

One such instance of a legally defined duty applies to those that operate commercial vehicles. According to Regulations issued by the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration, “extreme caution” must be taken when commercial vehicle drivers find themselves in treacherous road conditions. To quote the rule:

§392.14 Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated

.

This rule is pretty specific. It requires that commercial drivers be very careful if their visibility or traction is affected negatively by weather or other adverse road conditions. Theymust slow down, and if the conditions are bad enough they must pull off the road and not drive until it is safe.

Because of this rule it would be easier to prove liability if a commercial driver does not use extreme condition as required. As an example, if the driver of a big rig were to decide not to pull over during a rain and hail storm and then started to hydroplane, causing an accident where another driver was killed, the survivors of the deceased driver would very likely be able to collect damages in a lawsuit against the big rig driver and/or his employer. The duty element of a negligence claim would already be established. As such, at the very least, the defendant driver would need to explain why he did not pull over and why his decision to not pull over qualified as "extreme caution" as required by the law.

If you have been injured or a loved one was killed in a car accident it is the job of your attorney to have enough experience and knowledge of the law to know when such regulations exist and will be helpful.

Continue reading "Pull Over!: Commercial Vehicles Required to Not Drive in Unsafe Conditions" »

Most parents probably get a little nervous when their teens take to the road, and for good reason. Teenage drivers are often very dangerous behind the wheel. In addition to their inexperience, teen drivers are more likely to succumb to the supposed “thrill” of risky behaviors like drunk driving, driving at night, distracted driving due to cell phones or usage of MP3 players, etc.

Statistics confirm parental apprehension. According to one insurance provider, each year:

More than 400,000 teens between 16 and 20 are severely injured in car accidents, and more than 5,000 lose their lives. Despite the very small percentage (10%) of the population that teenagers account for, teenage car crashes actually account for 12 percent of fatal car accidents.

The statistics are alarming. A teen driver is four times more likely to get into an accident than any other driver. The risk is even greater during the first year the teen learns to drive.

Beyond the risk of a child being severely injured (or worse) in a tragic accident, parents could also be held financially liable for the damages caused by their teen driver. Whether or not parents are likely to be held financially responsible very much depends on the facts of the case.

Family Purpose Doctrine

Under the Family Purpose Doctrine, if a parent allows a child to drive a vehicle they own and maintain for themselves they are liable for their child’s negligence while driving. That means that if you allow your child to drive your car and they cause an accident, you may be forced to pay for the medical expenses, pain and suffering, or lost wages of the injured parties. In some circumstances you could even be forced to pay punitive damages.

The idea behind the family purpose doctrine is that the owner of a car can control the car’s use and as such allows family members to drive. The owner’s control of the car gives rise to liability. If both parents own a car they can both be held fully liable for their teens negligence. One way to get around the family purpose doctrine is for parents to give title of a vehicle to their child. If the child owns the car, and not the parent(s), the parent(s) cannot be held liable.


Because of the family purpose doctrine it is a good idea for parents to make sure they have adequate liability insurance to cover any possible accidents or incidences. If insurance is inadequate a judgment could be rendered against the parents personally, reaching other assets. The amount of damages may even be based on the parents ability to pay.

For these reasons it is very important that parents educate their children about the risks of dangerous driving behaviors. While parents cannot control what their children do behind the wheel, they can ensure their teens are fully aware. Undoubtedly, informed teens will be more likely to make safe intelligent driving decisions than those who have not been fully informed of the consequences unsafe behavior can have.

On Friday, March 19, a police checkpoint in north LeFourche surveyed over 200 cars on La. 20 in Chackbay between 10 p.m. and 4a.m. according to a Daily Comet article. The checkpoint caught three DWI offenders and cited nine open-container violations.

Sobriety checkpoints are legal in the state of Louisiana. Many residents see being stopped momentarily by the police as a small inconvenience to endure in order to deter alcohol impaired driving. The state of Louisiana employs many aggressive drunk-driving policies. Louisiana requires an ignition interlock for all first time DWI offenders and has strict policies for parents and other persons contributing to the intoxication of minors.

Despite Louisiana’s tough policies when it comes to drunk driving, according to the National Center for Statistical Analysis, 37% of traffic fatalities in Louisiana were alcohol related in 2007.

While police checkpoints are effective in pulling drunk drivers off the road, a minority of states determined they were illegal. According to the Governor's Highway Safety Association, eleven states do not conduct sobriety checkpoints because they are either considered illegal under state law or the state has ruled it does not have the authority to conduct them.

Texas is the only state that prohibits sobriety checkpoints because of a Constitutional issue. The Fourth Amendment guards against unreasonable search and seizures. A checkpoint where police can stop vehicles without probable cause is a violation of that right according to the Texas courts. While everyone feels it is important to stop drunk driving, some feel that other measures can be taken to stop drunk-driving that do not impede on their constitutional rights.

Some see police checkpoints as a way to not only combat drunk driving, but also bad driving in general. Aside from the DWI offenders and the open-container violations, the police checkpoint in LeFourche cited people for a number of other violations, such as improperly restraining a child and possession of marijuana. Others however fear that allowing police enforcement to have this type of authority will lead to possible abuse.

Although some states have deemed sobriety checkpoints illegal, law enforcement in Louisiana finds that they are a very effective tool in curbing drunk driving and will continue to use them. “There is no doubt there is a strong correlation between pulling drunk drivers off the road and saving lives," Sheriff Craig Webre said in a news release. "We will continue aggressive efforts like the one last night and this morning to do whatever we can to protect the citizens of this parish."

The one thing that people can do, whether checkpoints are legal in states or not, is remain responsible when drinking. Choosing to take a taxi or have a designated driver can not only prevent accidents but prevent serious legal issues from arising for those who chose to drive.

Reports of drivers arrested for DWI, or "driving while intoxicated," should serve as a reminder of the substantial duty imposed by the law on drivers to operate their vehicles in a safe manner. Motor vehicle operators owe a duty of care to all other drivers, passengers, and pedestrians to take reasonable care to avoid harm or injury. Some common breaches of this duty include driving too fast for conditions, failing to keep a proper lookout for other traffic, failing to observe traffic signals or markings, and driving while impaired by alcohol or drugs.

Two recent reports from Houma Today involve drivers who operated their vehicles while "under the influence" in Terrebonne Parish. The first involved Jeffrey Trahan of Gibson, Louisiana, who on March 22 received a five-year prison sentence for his role in a deadly car crash one year prior. According to police, on March 22, 2009, Trahan drove his 1996 Honda Accord on North Bayou Black Drive in Houma where he ran off the road into a ditch. Trahan's car flipped over, ejecting both Trahan and Donald McInnis, his passenger. McInnis, 17, who was also from Gibson, was pronounced dead at the scene of the accident. According to prosecutor Juan Pickett, Trahan tested positive for marijuana and Xanax, a prescription anti-anxiety medication that can adversely affect driving. Trahan pleaded guilty to vehicular homicide and will be required to serve at least three years in jail without parole.

In the second report, James McDowell III of Baton Rouge was arrested in Thibodaux on March 24 for a fifth-offense DWI. At approximately 1:30 AM, a Louisiana state trooper observed McDowell swerving across lanes on La. Hwy. 308 near Bubba's II Seafood Restaurant. The trooper charged McDowell with improper lane use, driving with a suspended license, and having an open container of alcohol in his car. McDowell had a blood-alcohol content of .052. While the state legal limit is .08, the trooper arrested McDowell because he had reason to believe that McDowell might have been under the influence of another substance. McDowell was taken to the Lafourche Parish jail.

In addition to the criminal penalties for DWI offenses (fines, license suspension, jail time), inebriated motorists can also face civil actions for the property damage and physical injury or death that result from their unsafe driving. For instance, the McInnis family may wish to pursue a cause of action against Jeffrey Trahan for the death of Donald. Other DWI accident victims can make claims for monetary compensation for medical care, lost wages, pain and suffering, and emotional trauma. A criminal conviction for DWI is as close to the law gets to a "slam dunk" for a plaintiff in a negligence suit against a drunk driver.

Continue reading "Deadly Crash and DWI Arrest Remind Drivers of Duty of Care" »

On December 15, 1955, James Edwin Watson, then 20 years old, was driving his Harley-Davidson motorcycle southbound on the two-lane State Highway 17 in West Carroll Parish, Louisiana. He was being followed at some distance by his friend, Douglas Simpson, in a Ford automobile. Both Watson and Simpson intended to make a left turn onto Airport Road on their way to Watson's house. As they approached the intersection, a vehicle driven by Stanley D. McEacharn, Jr. overtook Simpson's car on the left. Then, as McEacharn began to overtake Watson's motorcycle, Watson, unaware of the presence of McEacharn's car approaching in the left lane, proceeded at an angle into the left lane to make his left turn onto Airport Road. McEacharn's car struck Watson's Harley, sending the motorcycle further down the highway before it came to rest in the ditch on the side of the road. Watson's body was found on the shoulder of the road, approximately half-way between where McEacharn's car stopped and the motorcycle came to rest.

At trial, Simpson testified that as McEacharn's car overtook his own, Watson's Harley was out in front about 450 feet and was traveling, at an angle toward Airport Road, at about five MPH. Simpson said Watson gave a signal of his intention to make a left turn. McEacharn denied seeing any signal from Watson but admitted as he passed Simpson's car he saw a glimpse of a man on a motorcycle. Both McEacharn and Simpson testified that they did not observe Watson make any turn of the head to the rear to check for traffic overtaking him.

The trial court concluded from the evidence that McEacharn had the last clear chance to avoid the accident but failed to avoid it because of "excessive speed, failure to keep a proper lookout ahead to discover the presence of those who may be in danger, failure to sound his horn, and failure to apply his brakes in time." Watson v. McEacharn, 99 So. 2d 138, 139 (La. Ct. App. 2nd Cir. 1957). The court concluded that McEacharn's negligence constituted the "proximate and immediate cause" of the accident, with Watson's negligence in placing himself in a position of danger only a "remote" cause. Accordingly, the court entered judgment for Watson.

On appeal, McEacharn argued that the trial court misapplied the last clear chance doctrine and that neither party was legally responsible for the accident because both Watson and McEacharn were negligent. The Court of Appeal, in considering McEacharn's position, reviewed the Rottman v. Beverly case in which the Louisiana Supreme Court explained:

Where the danger is brought about by plaintiff's own negligence, but is not discovered by defendant, because of a failure to exercise due care, the parties are on equal footing. Their faults are mutual, their negligence is concurrent. It arises from the same cause, viz., failure to observe. The negligence of each party is a contributing cause of the accident. In such case it cannot be determined whether the negligence of the plaintiff or that of the defendant was the proximate and immediate cause of the injury, and neither party can recover. (Rottman v. Beverly, 183 La. 947 (1936))

Finding that analysis inapplicable to the facts of this accident, the court instead relied on a different passage from Rottman:

But if a plaintiff negligently puts himself in a place of danger and his negligence and danger are actually discovered by the defendant, then there devolves upon the defendant a duty which intervenes or arises subsequent to the negligent acts of the plaintiff, and that duty is to save the plaintiff from the consequences of his negligent acts if he can.

Taking this reasoning further, the court noted that the "first duty of those who operate ... motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger." If motorists

Perform that duty and discover that some one is in danger, then a second duty arises, and that is to use every possible available means to avert injury. If the defendant fails to perform that duty, his negligence in that respect is regarded as the proximate and immediate cause of the injury and the negligence of the plaintiff in putting himself in a place of danger, the remote cause. In such cases the last clear chance doctrine applies even though plaintiff's negligence continues up to the accident.

In other words, McEacharn had a duty to keep watch for other drivers like Watson who negligently put themselves in harm's way. Because McEacharn recklessly failed to discover the danger to Watson--and because Watson never became aware of his own peril --McEacharn failed to meet his duty to avoid the accident. This was the negligence which formed the basis of McEacharn's liability for the crash.

The Watson case illustrates that drivers accept substantial responsibilities every time they get behind the wheel. Also, the case demonstrates that in light of these many duties, fault-finding in accident cases can be a difficult challenge. Injured parties should be sure to consult knowledgeable counsel who can help them build a negligence case and obtain the recovery they deserve.

Continue reading ""Last Clear Chance" Doctrine Applied in Tragic Motorcycle Accident in West Carroll Parish" »

According to reports from the Associated Press and Louisiana’s WWLTV, at least four people were killed in a tragic accident near Grosse Tete last Friday (April 9, 2010). The accident was so bad that a portion of 1-10 westbound was closed and traffic was diverted at the La. Highway 415 to U.S. Highway 190.

As reported by state troopers, an eastbound 18-wheeler sideswiped another 18-wheeler stopped on the shoulder. The first truck lost control, crossed the median, and collided head on with yet a third 18-wheeler. The second collision caused a fire. After the fire was put out, a car was found in the wreckage. The crash is still under investigation and no names of those involved have been released. However, a 15 year old girl reportedly survived without serious injuries.

After a tragedy like this one, family members of those killed will surely be asking themselves who was to blame for the accident and who will be responsible for damages. Survivors can sue whomever is at fault in a wrongful death lawsuit and may be able to collect a variety of damages, including medical and funeral expenses or compensation for pain and suffering. However, with an accident involving an 18-wheeler or other large commercial truck (or many, as in this case), the legal issues are a bit unique. The differences mainly stem from the fact that in a traditional vehicle accident where another driver was at fault, he and his insurance company will typically be held fully responsible for damages if the driver is proven to have acted negligently.

When an accident is caused by a truck driver, the driver and his employer or supervisor/s may be held responsible for negligence in driving or in the hiring and training of drivers. Each entity may have separate insurance that can also be held responsible. In addition, there is an increased chance that faulty parts may be to blame with such a large dangerous vehicle, and thus the manufacturer may be responsible as well. Even if faulty parts aren’t to blame, insufficient maintenance of the vehicle may be. To say the least, this makes claims involving 18-wheelers much more complex because the sheer number of factors that may be taken into account in litigation.

Additionally, because of all the risks involved with 18-wheelers, state and federal laws regulate their operation. In fact, an entire federal agency, the Federal Highway Administration, was formed in the early 1980’s in an effort to decrease the number of fatal truck accidents on American highways. There are specific laws that regulate the licensing of truck drivers, including the fact they must be able to meet minimum standards to be issued a Commercial Driver’s License. For particular vehicles, special endorsements are even required.

The myriad of laws governing large commercial vehicles like 18-wheelers can be relevant in an injury or wrongful death lawsuit because under a negligence per se theory if a driver has violated the law, a claimant may be able to bypass the duty and breach elements of proving a negligence claim. This means that rather than having to prove they were owed a duty by a driver, and the duty was breached, they would only need to prove that the driver caused injury and the injury resulted in damages in order to recover.

If you have been injured or lost a loved one in a tragic 18-wheeler accident it is absolutely vital that you have an attorney who fully understands the layers of potential issues and claims that could pertain to your case.

Continue reading "At Least Four Dead in Fiery Grosse Tete Crash: Unique Legal Issues Emerge in 18-wheeler Accident" »

A claim for loss of consortium is typically pursued following an injury where a husband or wife can no longer enjoy the companionship and services of his or her injured spouse to the same degree as before the accident. The loss can be permanent or only temporary, and it can result from the physical injury itself or the mental distress caused by the injury. The loss of sexual relations is frequently cited to support the claim, though it is not an essential element; the claim can also extend to other aspects of the spousal relationship such as caring for children, preparing meals, cleaning the house or performing other chores in the home, and sharing in social activities.

Louisiana law clearly defines the elements to be considered in a loss of consortium claim:

1. loss of love and affection; 2. loss of society and companionship; 3. impairment of sexual relations; 4. loss of performance of material services; 5. loss of financial support; 6. loss of aid and assistance; and 7. loss of fidelity.

An example of a court's analysis of these elements is presented in Campbell v. Webster Parish Police Jury, 828 So. 2d 170 (La. Ct. App. 2d. 2002). In this case, Ms. Virginia Campbell was driving her car on Parish Road 2 in Webster Parish when she encountered an unmarked patch of gravel left in the roadway by workers of the Police Jury. Ms. Campbell lost control of her vehicle and crashed into a ditch, which resulted in abrasions on her knees, arms, neck, and face. Ms. Campbell was taken to the Spring Hill Medical Center and then to her family physician, who determined that her most serious and debilitating injury was to her back.

The Campbells' suit included a claim for loss of consortium on behalf of Don Campbell, Virginia's husband. The trial court awarded Mr. Campbell $15,000 in damages on this claim. The Webster Parish Police Jury appealed this award, as well as other awards made by the trial court for Ms. Campbell's general damages and medical expenses.

The Court of Appeal, in reviewing the trial court's award of damages for loss of consortium to Mr. Campbell, examined the record which contained evidence of several of the seven elements. The court noted that Ms. Campbell had been to several doctors over the course of the three years since the accident but still complained of pain. One physician testified that Ms. Campbell was "probably 50%" recovered as of the date of trial and, though she might progress "another 20 to 30%," she would likely require chiropractic treatment indefinitely.

Mr. Campbell described his wife as "positive" and "upbeat" before the accident and reported that she was "very active" and "enjoyed exercising, traveling and gardening." After the crash, though, Mr. Campbell saw her activity level drop "to zero." Mr. Campbell testified that his wife was unable to do household chores and that she stopped gardening and cooking. She no longer wanted to talk and experienced frequent crying spells. Although Mr. Campbell felt that his wife's personality was gradually "coming back" and she was learning to live with her pain, she had not regained her pre-accident personality and activity level.

Mr. Campbell further testified about the impact of his wife's condition on his home life. He often had to carry groceries for her and help with the vacuuming, both tasks which were performed solely by his wife prior to the accident. Before the accident Mr. Campbell was accustomed to coming home from work to a supper prepared by his wife, but for an extended time after the accident, Ms. Campbell stopped cooking altogether. The Campbell's weekend trips were significantly reduced due to Ms. Campbell's back pain, and she no longer participated in shared activities such as bowling and hunting.

In light of this testimony, the court concluded that "the close relationship between Don and Virginia Campbell has been greatly strained as a result of the accident." Accordingly, the award to Don Campbell of $15,000 for loss of consortium was upheld.

The Campbell case demonstrates that an accident affects not only the victim, but also the family members who have come to rely on enjoying the victim's company. Fortunately, under Louisiana law, the loss of consortium claim provides a way for spouses to be compensated for their losses when tragedy strikes.

Continue reading "Webster Parish Car Accident Illustrates the Elements of a Loss of Consortium Claim " »

In a 2000 case, the Court of Appeals made several rulings both reversing and affirming Judgments Notwithstanding the Verdict (JNOVs) that were granted after the trial of a very serious Jefferson Parish accident.

In October 1995 Michael Mashburn was driving east on 1-10 on the downslope of Bonnabel Boulevard, Jefferson Parish, when he lost control of his vehicle and struck the guardrail. He came to a stop blocking the left lane. Minutes later another car came over the overpass and struck Mashburn’s car. The second car was knocked across three lanes of traffic, struck the right guardrail, and came to rest blocking the right lane. The state police came to the scene. Within a couple of minutes of their arrival a motorcycle driven by Sean Schneider slid into another car stopped in the accident traffic. Schneider was thrown off and killed. About 100 feet back, another motorcyclist, Mendoza, was also involved in an accident and was seriously injured (requiring a partial leg amputation).

At trial, the jury granted judgment in favor of plaintiffs Mendoza and Schneider, (via his parents) and against Mashburn and his insurance company. Mashburn and the plaintiffs moved for JNOVs which were granted by the trial court. The JNOVs found the police officers liable for the motorcycle accidents for failing to properly secure the scene and warn drivers of potential danger and altered the damage awards to both Mendoza and Schneider. Upon appeal, the 5th Circuit Louisiana Court of Appeals reversed the JNOV with respect to police officer liability, affirmed with respect to damages awarded to Mendoza, and reduced damages awarded to Sean Schneider’s parents.

JNOVs are a legal device that can be used to alter jury awards. This can be positive or negative for plaintiffs. For example, at trial, plaintiff Mendoza was awarded $150,000 for physical pain and suffering; $10,000 for emotional distress; $10,000 for loss of enjoyment of life; and nothing for disability. He was also awarded special damages of $94,710 for past medical expenses; $1,500,000 for future medical expenses; $12,000 for past lost wages; and $140,000 for future lost wages. After all three parties moved for a JNOV the trial court:

found there was insufficient evidence to support the jury's award of future medical expenses and that the jury erred in its awards for emotional distress as well as disability and loss of enjoyment of life. The trial court then awarded $150,000 for physical pain and suffering; $150,000 for past, present and future emotional distress; $100,000 past, present, and future disability; $100,000 for loss of enjoyment of life; and $250,000 future medical expenses. The jury awards for past and future lost wages, and past medical expenses were confirmed

. In their decision, the Court of Appeals provides a useful discussion of JNOVs and when they are properly granted.

A JNOV is proper only if “the facts and inferences are so strongly and overwhelmingly in favor of one party,” that, according to the judge, no reasonable person could have arrived at a different verdict. The job of a trial court in considering a motion for JNOV is not to weigh the reliability of the evidence, or reconsider factual findings or the credibility of witnesses. The court considesr all of the evidence and give the non moving party the benefit of every reasonable inference that can be drawn from their evidence. If a JNOV is challenged the appeals court must make the same determination and asks whether the facts points so strongly in favor of the party who moved for the JNOV that reasonable men could not come to an opposite conclusion.

As such, here the Court found that impartial reasonable men could not differ in concluding that Mendoza suffered a disability in the loss of his leg. In addition, given the impact of the injuries, the awards for physical and emotional suffering and loss of employment were abusively low. After they granted Mendoza’s JNOV, the court conducted their own independent assessment of damages and that is where they decreased the special damages awarded because they found that Mendoza did not prove that it was more likely than not (preponderance of the evidence standard) that his future medical expenses would be incurred.

This tragic set of circumstances provides a brief introduction to the realities that exist with civil litigation and the complexities that must be navigated in a successful claim.

An "act of God" is an unusual, extraordinary, sudden, and unexpected manifestation of the forces of nature which man cannot resist, or prevent for that matter. Even something as commonplace as ice on a bridge can qualify. Three suits regarding a two-car accident on Natchitoches’ Ecore Bridge in 1990 gave Louisiana’s Third Circuit Court of Appeal an opportunity to discuss the doctrine of inevitable accident and the State’s duty to remedy the icy conditions.

The aforementioned early-morning ice on the Grand Ecore Bridge affected several motorists in January of 1990. Problems began between 5:30 and 6 a.m. when ice caused a woman to lose control of her car, hit a road sign, and come to rest facing the opposite direction that she was traveling. Shortly thereafter, a supervisor of the State’s Department of Transportation and Development (DOTD), Neil Bennett, came upon the accident while traveling on department business. Bennett stopped to see if the woman was injured, then proceeded down the highway to a roadside store where he called the Sheriff’s Office to report the accident. He then called the DOTD barn to request that a crew place sand on the bridge and returned to the bridge.

Minutes after Bennett returned, a Mack truck hit a patch of ice, jackknifed, and slid into an oncoming Pontiac. The driver of the car and his two passengers filed suit against the DOTD, the driver of the truck, his employer, his insurer, and the Louisiana Insurance Guaranty Association. The trial court dismissed all claims and the Third Circuit affirmed.

The Third Circuit’s opinion focused on the potential liability of the driver of the truck and the DOTD.

The doctrine of inevitable, or unavoidable, accident relieves a person of liability for an injury directly and exclusively caused by an act of God. However, an act which may be prevented by the exercise of ordinary care is not an act of God; when an act of God combines or concurs with the negligence of a defendant to produce an injury, the defendant is liable if the injury would not have resulted but for the defendant’s own negligent conduct or omission.

The plaintiffs alleged that even though the ice may have been an act of God, the truck driver was negligent in 1) driving too fast, and 2) the fact that his vehicle came to a stop in the car’s lane, not its own.

However, based on testimony of the truck driver that he was driving at half the speed limit, 25 m.p.h. in a 50 m.p.h. zone, and of the investigating officer that there were no traffic violations by either driver, the trial court found no evidence of unsafe driving or negligence on the part of the truck driver. The court's determination of guilt fell upon the finding that the collision resulted from the ice, not from any negligence on the part of the truck driver. The Third Circuit found no clear error in that conclusion.

Additionally, plaintiffs claimed that the DOTD had notice of the ice on the bridge, but was negligent in failing to remedy the situation in a reasonable time. Plaintiffs contend that Bennett took no action to warn traffic of the ice on the bridge and that he was negligent in failing to close the bridge after discovering the icy condition.

Louisiana law provides that the State owes a duty to maintain highways in a reasonably safe condition and remedy conditions which make a roadway unsafe. This duty arises from knowledge of an unsafe condition on a highway. Before the State may be held liable for an accident caused by a hazardous or dangerous condition of a highway, it must be shown that the State had actual or constructive notice of the condition. Further, it must be proven that the State had a sufficient opportunity to remedy the situation, or at least warn motorists of its presence, and failed to do so.

In this case, the DOTD admitted that it had knowledge of ice on the Grand Ecore Bridge before the two-car accident. However, it maintained, and the trial court later concurred, that the DOTD did not have a reasonable opportunity to remedy the situation. The DOTD barn had only about 20 minutes notice of the first accident before the second accident occurred. The trial judge found no negligence under those circumstances and the Third Circuit found no error in that conclusion.

As for the plaintiffs' contentions regarding warning traffic and closing the bridge, the record provided that the emergency flashers of the car involved in the first accident were on as well as the lights on Bennett’s vehicle. Additionally, both Bennett and the investigating officer testified that one person cannot close a bridge, and, only under extreme circumstances, such as a bridge being washed out, would they even attempt to do so. Bennett was not negligent in those respects.

The trial court’s dismissal of the claims was affirmed. The accident was caused by an act of God and there was no negligence on the part of any defendant. Further, all liability was relieved by the doctrine of inevitable accident. It is in this limited way that the law accepts one common factor in the daily lives of everyday citizens: things happen.

A malfunctioning traffic signal located in Rosepine, Louisiana, caused much confusion for two drivers one October morning in 1978. Going about their day, both drivers were given the green signal from their respective sides of the signal. As both drivers moved forward expecting the other to stop they collided. One driver filed suit, and the case that arose from the collision provided an opportunity for Louisiana's Third Circuit Court of Appeal to clarify who is at fault in that type of situation. Through this ruling the court developed precedent for the responsibility in the event of malfunction. At fault was Louisiana's Department of Transportation and Development (Department).

The Court first verified that the traffic signal was malfunctioning at the time of the accident. Both drivers and many uninterested witnesses testified as to the condition of the light. It was described as appearing to have been struck, being twisted, and turning from green to yellow and back on all sides.

The Court then looked to Article 2317 of Louisiana's Civil Code to see who would be held liable for the plaintiff's damages. The Article provides in part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of things which we have in our custody.

The Court explained that under this article, the injured party bringing suit need not prove negligence. Instead, the party must only prove that the thing which caused his damage was in the care or custody of the defendant, that the thing had a vice or defect and that it presented an unreasonable risk of injury to another, and that his injury was caused by the defect.

In other words, when applying this article to the facts surrounding the accident, the article provides for strict liability of the owner of the malfunctioning traffic light. The Court found that the traffic signal was in the custody of the Department, it was defective, and the injuries sustained in this case were caused by the defect.

Additionally, the Court discussed the duties of a motorist on entering an intersection controlled by a traffic signal exhibiting a green light. The motorist is entitled to assume that traffic approaching the intersection from either side will comply with the red light and stop. In fact, several cases have provided that a motorist given the green light is not obligated to look to his left or right before entering the intersection. All that is required is that the favored motorist maintain a general observation of the controlled intersection.

The City of Rosepine was also listed as a defendant, but the Court found the City to not be liable. The only obligations of Rosepine concerning the traffic light were to furnish electricity for its operation, to replace bad bulbs, and to notify the Department of any malfunction. The Court found no showing that the City had notice of a malfunction that would require them to give notice to the Department.

Should you find yourself in a similar situation because of a malfunctioning traffic signal or perhaps an incorrect red-light camera, radar-determined speeding violation, etc., attaining proper legal counsel is paramount. Only after discussing with an attorney your legal rights can you feel truly confident that the law is being handled properly.

When traffic accidents occur, courts must examine the basic "rules of the road" that govern drivers' conduct in determining fault. The violation of a traffic regulation is a frequently-used basis for finding that a driver was negligent when the violation results in a crash.

The case of Dyck v. Maddry, 81 So.2d 165, 167 (La. App. 2 Cir. 1955), was one such case where the court referred to basic traffic rules in determining fault. On the evening of June 2, 1954, Ms. Gladys Maddry was driving her Chevrolet coupe south on State Highway 90 just outside of Cotton Valley. Mr. Elmer Dyck approached Highway 90 from a street that intersected but did not cross it, thus forming a "T" intersection. The intersecting street was marked with a stop sign, while traffic on Highway 90 had the right-of-way. Mr. Dyck testified that he approached Highway 90, stopped at the intersection, and after confirming there were no oncoming vehicles, proceeded to make a left turn onto the highway. After he had traveled about 90 feet south of the intersection, Mr. Dyck's car was struck from the rear and overturned by Ms. Maddry's automobile. Ms. Maddry testified that Mr. Dyck drove suddenly into her path and that she immediately applied her brakes to try to avoid the collision.

At trial, the court found that both Mr. Dyck and Ms. Maddry were contributorily negligent and denied their claims against each other. The Court of Appeal upheld the findings of the trial court. Regarding Ms. Maddry's negligence, the court noted that Louisiana law

prohibits the operator of any vehicle upon the highways of this state from driving at other than reasonable and proper speed under the circumstances. A driver shall at all times be on the alert, steadily watch road conditions ahead as they are revealed, and keep his vehicle under such control and maintain such speed as is commensurate with circumstances, and the greater the known hazard the greater should be the degree of care exercised. (Dyck, 81 So.2d at 167)

Accordingly, the court determined that Ms. Maddry's speed was "excessive and unlawful and was a contributing and concurrent cause of the accident." It also concluded that Mr. Dyck's left turn onto Highway 90 "was accompanied with negligence which also was a concurrent and contributory factor to the mishap." This finding was based on further review of Louisiana law which states "a motorist intending to execute a left turn in an intersection must initially ascertain by careful observation that the maneuver can be executed safely." Further, the court determined that

the rule is well settled to the effect that a motorist who merely stops before attempting to enter a right-of-way thoroughfare has only performed one-half the duty resting upon him. To stop and then proceed without ascertaining if it is safe to do so is negligence of a gross character and renders the driver guilty of negligence. (81 So.2d at 167)

Courts continue to rely on a "back to basics" approach when assessing the liability of parties involved in automobile accidents, so drivers must remain keenly aware of their obligations to operate their cars safely under the law.

Continue reading "A "Rules of the Road" Analysis Determines Outcome in Cotton Valley Negligence Case " »

28 year old Arlandus Albertlee Green, Jr. of Minden has been arrested and charged with running down two people with his car.

Green, also known as Lance, has been accused of aggravated battery and aggravated assault. As reported in the Bossier Press Tribune and Minden Press Herald’s nwlanews.com,

Minden Police Chief T.C. Bloxom said on February 7, Green and Lamario Elkins began arguing on Sheppard Street. During the argument, Green pulled a Jimenez 9 mm and pointed it at Elkins.

‘Green got into his Monte Carlo and put it in reverse,’ said Bloxom. “He then drove backwards and ran into two bystanders.”

The bystanders, Jane Sneed and Bobby Tobin were taken to Minden Medical Center with contusions and released later the same day. The argument apparently centered around a female.

Car accidents can take many different forms. Others beyond merely drivers and passengers are sometimes injured. Here, two innocent bystanders suffered injuries when Mr. Green backed into them. While Mr. Green has been arrested he may also face civil consequences for his actions.

Under Louisiana law someone injured in a car accident that was not their fault should not suffer financially at all because of the accident. The responsible party and their insurance company can be found liable damages, including: current and future medical expenses, lost wages for time spent in the hospital or recovery, and possibly even damages for pain and suffering. Civil liability may exist regardless of the outcome of criminal charges.

A finding of fault in an auto accident typically requires that the defendant driver acted negligently. This means that the driver must have had a duty of care to the injured party or parties, breached the duty, and the injuries were caused by the breach. Causation in itself requires both cause in fact, (the injury would not have occurred but for the breach) and proximate cause. Proximate cause entails that the negligent act was not too remote from the injuries. That is, it must have been reasonably forseeable that the injuries would result from the breach.

Each element of a liability claim has its own legal nuance. As such, proving fault through negligence in an auto accident case can be difficult and complex. If you have been injured in an auto accident that was not your fault you need an attorney with significant experience in this area of the law.

Continue reading "Minden Man Arrested for Running Down Two People With his Car " »

As reported in the Ruston Daily Leader, a tragic three car accident killed 19 year old Francisco Javier Hernandez of Dubach last October. According to State Police records, Hernandez was driving a 2004 Mustang on La.33, lost control of his car, and crossed the center line into the path of a tractor-trailer. The two then collided head on. The driver of the tractor-trailer, 47 year old Joseph Battaglia of Shreveport, escaped the cab of his truck just before it burst into flames. Battaglia was taken to North Central Louisiana Medical Center with minor injuries

A third driver, 24 year old Haley Snipe of Ruston was behind Hernandez at the time of the crash but was able to drive off the road and into a telephone box. Snipe walked away without injuries. Although impairment is not suspected to be a factor in the accident, routine toxicology tests are pending.

In Louisiana, the party at fault for an automobile accident, and their insurance company, is responsible for the damages of the accident and innocent parties should not suffer any financial loss. Louisiana is a direct action state which means that insurance companies can be named directly in the lawsuit. This can sometimes benefit victims because judges and juries may be more apt to award damages when they know they will be paid by an insurance company rather than an individual.

If, as in this case, someone is killed in an accident, their survivors may collect damages in a wrongful death lawsuit. Such damages can include the cost of medical care, lost future wages, compensation for pain and suffering or loss of companionship. Such cases may even include punitive damages meant to punish the party at fault. What damages may be collected depends on the relationship between the survivors and the individual who has died. For example, parents who have lost a child may be able to collect compensation for loss of companionship while a spouse could collect lost future wages.

Proving fault in an auto accident case typically requires proving negligence. This means that the injured party must prove that the defendant owed a duty to them, the duty was breached, and that their injuries naturally resulted from the breach.

Louisiana is different from some states in that in cases where fault for an accident lies with more than one party the damages are apportioned according to the level of fault for each party. For example, if someone is found to be 20% at fault for an accident, they may only collect 80% of the damages because their damages are reduced by the 20% they were responsible for. Louisiana is also unique in that the statute of limitations to bring a claim after an auto accident is only one year. After a year, injured parties are banned from bringing additional claims.

If you have been injured in an auto accident it is vital that you have an attorney who understands accident injury law as well as how Louisiana law may differ from other states.

Continue reading "October Tragedy Demonstrates Complexities of Auto Accidents" »

18-year old Benjamin Guidry of Church Point was killed in a two vehicle crash on February 23rd. The crash occurred on I-10 just west of Rayne. The vehicle Guidry was in crossed the eastbound lanes, went through the median, crossed the westbound lanes, and struck several trees. Guidry was not wearing a seatbelt and the coroner pronounced him dead at the scene. Guidry was a passenger in a 2000 Honda Accord driven by 17-year old Brennen Sonnier, also of Church Point.

According to an article on Southern Louisiana's CrowleyToday.com,

A 1998 Volkswagon driven by thirty-two year old Megan Collum of San Antonio, Texas was traveling in front of Sonnier. Sonnier approached Collum’s vehicle from the rear and struck the right rear corner of her car. After impact, Sonnier ran off of the road to the left and crossed the median, and westbound lanes of traffic. Sonnier’s vehicle struck several large trees on the north side of the interstate. Sonnier sustained moderate injures and was transported to a local area hospital. A second passenger in the vehicle, seventeen-year-old Aaron Richard of Branch, was critically injured in the crash. Collum was not injured in the crash.

This crash is currently under investigation. Toxicology samples were taken from both drivers and results are pending.

In Louisiana, the individual deemed to be at fault for an accident (and their insurance company) is responsible for all damages created by the accident. This includes property damage, the medical expenses of anyone who is injured, lost wages for time spent in recovery, and even compensation for pain and suffering. If someone has been killed in an accident their survivors may pursue a wrongful death claim against the at fault party.

Fault in an automobile accident can be difficult to determine and often requires extensive research and investigation. Typically, if a party acted negligently they will be found at fault. To prove negligence, you must prove that a duty was owed to the person injured, that duty was breached, and that injury was caused by the breach. Causation requires both cause in fact and proximate cause. Cause in fact means that the injury would not have occurred but for the breach of duty. Proximate cause goes even further and requires that the injury was forseeable, given the breach - that is, it naturally resulted from the breach.

Sometimes fault can be divided between multiple parties. For example, in this case the fault for the accident may have been in both drivers if Ms. Collum stopped abruptly and Mr. Sonnier was speeding. In addition, because Mr. Guidry was not wearing a seatbelt he may have shared some fault.

Louisiana is a pure comparative fault state. This means that courts take on the difficult and complicated task of apportioning fault, and then award damages accordingly. An injured parties' damages are reduced according to how much they are determined to have been at fault for the accident. For example, if in this situation Mr. Sonnier (driver#1) brought a claim for his injuries against Ms. Collum (driver #2) and it was found that Sonnier was 20% at fault for the accident he would only be able to collect 80% of the damages because his award would be reduced by 20%.

Even seemingly clear cut auto accident cases can become very complex very quickly. For that reason, if you are injured in an accident it is absolutely vital that you have a thorough, detail-oriented attorney who truly understands this area of the law.

Continue reading "Church Point Teen Killed in 1-10 Crash " »

According to an article on the townwalk.com, 28 year old Deborah Parker of Elizabeth was killed in a single vehicle accident on the morning of February 18th. According to state police, the crash occurred at the Rapides-Allen parish line at about 7:30 in the morning. Jason B. Mancil, driving a 2004 PT Cruiser, lost control of his vehicle and ran off the left side of the road, hitting a tree. Both Mancil and his passenger, Parker, were not wearing seatbelts. Mancil suffered only minor injuries while Parker was pronounced dead after being taken to Oakdale Hospital. The case is still under investigation, but Mancil has been cited for careless operation.

A situation like this one where a passenger has been killed in a one vehicle automobile accident can create difficult legal issues due to the relationship between the parties (and their survivors).

Under Louisiana law, the person at fault for an auto accident, and their insurance company, is responsible the damages caused by the accident. A party not responsible should not suffer at all financially because of the accident. In addition, if someone has been killed due to another party's negligent behavior, their survivors may pursue a wrongful death lawsuit. To prove negligence the defendant must have owed a duty to the plaintiff, breached the duty, and the damage (in this case, death) must have naturally and forseeably resulted from the breach.

The situation is complicated even more if the injured party is found to have contributed to their own injury, as may be a possibility here. Because Ms. Parker was not wearing her seatbelt, a court of law may hold that she carried out actions that sufficiently led to her own injury. Louisiana is a pure comparative negligence state. This means that the damages each party can collect are reduced by their contribution to fault. For example, if someone is deemed to be fifty percent at fault for an accident, they will only be able to recover a damage award covering fifty percent of the damages (100 percent minus a 50 percent reduction).

Issues created in both car accident and wrongful death cases can be complex and confusing. Having an experienced attorney to protect your interests is essential.

Continue reading "Elizabeth Woman Killed in Single Vehicle Accident, Creating Difficult Legal Issues " »

As reported by the Advocate and WBRZ News Louisiana, police now have a suspect in the hit and run that killed 20 year old Mikel Carson on January 31st. According to an arrest warrant, Christian J. Cvitanovich of Melairie is wanted for striking down Carson with his 2005 Ford Expedition. At the time, Carson was walking down 1-10 to check on a woman involved in an unrelated vehicle crash.

According to the article,

Investigators with the Police Department’s Traffic Homicide Unit were told on Feb. 4 that the Expedition had been taken to a Metairie body shop... with the assistance of the Jefferson Parish Sheriff’s Office, the vehicle was impounded that afternoon and returned to Baton Rouge for further examination.

Mr. Cvitanovich may face more than just criminal charges as a result of the incident. Mr. Carson's family may also be able to collect damages in a wrongful death lawsuit. A wrongful death claim can be brought if a victim is killed as a result of the negligence or other improper conduct of another person or entity. Although the deceased person will not be able to benefit from the claim, their survivors can receive compensation.

Generally, for a successful wrongful death claim, three elements of proof for a successful claim must be proven: 1) the victim's death was caused by the a wrongful act of the defendant, 2) there is a surviving spouse, children, or beneficiaries to collect on the claim, and 3) the victim's death resulted in monetary damages.

Continue reading "Baton Rouge Hit and Run accident may lead to further court action" »

As reported in an article on nwlanews.com, Randy Campbell of Doyline is in stable condition at Louisiana State University Medical Center after surviving an automobile accident on I-20 near U.S. Hwy 532. The accident occurred early in the morning of February 9th. According to an eyewitness account, Campbell was headed eastbound when an 18-wheeler allegedly ran him off the road, causing him to come to a stop in a ditch facing the other direction.

Rescue teams were dispatched to the scene, and Campbell had to be cut out of his 2008 Ford Pickup. Police are on the lookout, but have not yet located the rig responsible for the accident.

In a situation like this one, who will pay for the damages created?

Under Louisiana law, the party found at fault for causing an accident is financially responsible for all of the damages. This can include medical expenses for anyone who has been injured, lost wages for time the injured person is not able to work, possible compensation for pain and suffering, and in some cases even punitive damages meant to punish the party at fault. If the injured party later dies their survivors may even pursue a wrongful death claim. However, the situation is slightly different when it is a hit and run.

First, police should do all they can to find the at fault driver. Here, the article indicates that there were witnesses to the accident. If an eyewitness or Mr. Campbell was able to get the license plate number on the truck, the driver may be able to be tracked down by law enforcement who can search police records or the Louisiana Office of Motor Vehicles.

If the party at fault cannot be located, however, the injured driver's insurance company would be the only party from which to collect damages. The amount of damages that can be collected in a hit and run situation depends on the type of insurance policy the driver has.

Louisiana law requires that individuals purchase uninsured/underinsured motorist coverage for these types of situations. A hit and run driver is considered "uninsured" as long as there was a disinterested witness to the accident (for example, someone who was not in the car at the time). A person buying insurance in Louisiana is presumed to have also bought this coverage because, under state law, individuals must sign a form indicating they have rejected uninsured/underinsured coverage in order to not buy it.

Uninsured/underinsured coverage should pay the medical expenses for any bodily injury you or an occupant of your vehicle suffers due to an accident caused by another driver who is deemed uninsured or underinsured. Uninsured/underinsured motorist coverage may also cover property damage to your vehicle depending on the policy type.

Even if you have uninsured/underinsured motorist coverage, insurance companies are often looking out for their own bottom line, and may be hesitant to pay you everything you are entitled to under your policy. If you have been the victim of a hit and run it is crucial that you have an attorney on your side to ensure your needs are met.