Louisiana Personal Injury Lawyer Blog

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.