Louisiana Personal Injury Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For those wishing to be kept abreast of the latest products to receive governmental warnings regarding the safety surrounding their use, feel free to check out SaferProducts.gov. With a list of incident reports from other consumers, this effort by the government hopefully will help enable people to make conscious decisions regarding the products they put in their homes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To download the application, click here.

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

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

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

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

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

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

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

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

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

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

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

In 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" »

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 " »

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

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.

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 " »

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.

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.

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" »