Louisiana Personal Injury Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When a lawsuit is brought the positions of the parties are frequently unequal. This is often the case for products liability suits, which involve an injured consumer or user of a product seeking to recover damages from the maker or seller of the product. Being a large and sometimes repeat player in the legal system can give businesses an advantage over an individual that is using the court system for the first time. Depending on the size, structure, nature of the business, as well as other factors, businesses may have an in-house legal department or regular representation from an outside firm. This kind of legal experience and expertise can sometimes result in the business defendant being able to delay, increase the cost of, or otherwise inhibit the discovery process. A potential plaintiff needs a competent, experienced, and dedicated lawyer to ensure that all the discovery evidence he or she is entitled to is provided by the defendant.

An example of this type of battle is the recent case called Soileau v. Smith's True Value and Rental, which named Deere & Company and John Deere Limited as defendants. Ms. Soileau was injured in an accident on November 1, 2007 when a John Deere Model 460 front end loader became detached from a John Deere Model 4510 tractor and struck her right leg. Her initial lawsuit was brought on April 21, 2008.

Ms. Soileau filed interrogatories and requests for production of documents at the time of initially filing her lawsuit. However, each round of requests seemed to lead to refusals, delay, and incomplete information. Ms. Soileau even received incomplete information from the Consumer Product Safety Commission. This battle eventually led Ms. Soileau to turn to the court to force cooperation from the defendants. In addition to a motion to compel the defendants to answer her interrogatories, she sought to have them sanctioned, barred from producing certain evidence at trial, and forced to pay penalties and attorney fees for the trouble caused by their lack of cooperation.

On March 12, 2009, approaching one year after the lawsuit was initiated, the defendants received a court order to comply with discovery procedures. When this still did not motivate the defendants to fully cooperate, Ms. Soileau again turned to the courts. On May 22, she filed a motion to compel, to have the defendants held in contempt, and to have sanctions imposed. The trial court granted all of Ms. Soileau's requests, finding that the defendants had no good explanation for their delay or the piecemeal method of providing information, and that they had not taken their obligations seriously. The trial court found as a matter of fact that the defendants had been hiding information. The defendants appealed.

Despite the legal system being adversarial (each side trying to advocate their point of view), there is also a higher goal of justice and fairness. The Louisiana Code of Civil Procedure provides that a party may turn to a court for an order compelling discovery if dissatisfied with another party's responses. The decision to grant such relief rests within the discretion of the trial court.

Parties are allowed to use a variety of methods, including written or oral questions and requests for production of documents, to obtain evidence. The evidence available for discovery includes any matter which is not privileged and which is relevant to the subject matter involved in the suit. Evidence or other information may even be subject to discovery if it would reasonably lead to the discovery of evidence that is permitted in trial.

Refusing to cooperate with discovery requests can lead to court-imposed consequences for the uncooperative party, including a court order to produce discovery materials. However, there is a distinction between failing to cooperate with a normal discovery request and failing to obey court-ordered discovery. The former is sometimes justified, but may lead to a court order if unjustified. The latter is a more serious offense.

The Louisiana Code of Civil Procedure art. 1471 includes the following consequences as available against a party that fails to comply with discovery orders: (1) an order that the matters are established as fact (basically assuming facts as true when a party denies discovery); (2) an order preventing the disobedient party from opposing claims or presenting defenses; (3) an order stopping the proceedings until the order is obeyed or rendering a default judgment against the disobedient party; (4) an order treating the failure to obey any orders as contempt of court. When a trial court determines that any of the above consequences are appropriate, a reviewing court will only overturn this decision if there is abuse of discretion. In the case of John Deere, the reviewing court found no such abuse by the trial court.

The case of Ms. Soileau and the John Deere loader shows how difficult, tiring, and time-consuming discovery procedures can be. All the effort, the added hearings, and the expenses incurred along the way are entirely in addition to the actual reason for seeking help -- Ms. Soileau's original personal injury suit. Having excellent legal help will allow a plaintiff to obtain the necessary evidence, and perhaps even compensation for any undue trouble, to successfully support a claim against a company with a lot of resources.

A fire broke out in 2008 within the Denham Springs, Louisiana, home of Thomas and Janice Campbell that laid devastation to the house and left the couple looking for answers. The fire investigator determined the fire's cause was a defective range in the Campbell's kitchen. The investigator determined the burners were off and the fire broke out when the control panel experienced a short. The Campbell's had an expert assess the damage as well and received the same conclusion. Because of this assessment, the Campbell's brought a lawsuit against manufacturer of the range, General Electric, alleging product defect had led to the destruction of their home. GE countered in court, moving for summary judgment against the use of the Campbell's expert witness as well as moving for summary judgment against the use of a construction/composition claim.

If you have been a victim of an injury from a defective product, you should know that there are three different ways that you can prove the product is defective. These ways of proving fault attempt to encompass the process that a product undergoes and includes a variety of manners in which faulty conduct on the part of the delivery chain led to the disaster. By expanding the manner in which fault may be determined, the law not only gives more option to those injured by a product but also keeps a victim from suing anyone who came into contact with the good in hopes of compensation.

First, a product may have a manufacturing defect. A manufacturing defect occurs when a product becomes unreasonably dangerous by an error in the manufacturing process or the materials used in its creation, assembly, or construction. Therefore, if your electric range caused a fire because the materials used to create the product were below standard, this would be a "manufacturing defect." In Louisiana, these defects are called "construction or composition" defects.

Second, a product may be defective due to poor design. This type of defect is known as a design defect. Unlike a manufacturing defect where a single product is defective, a design defect involves an error in a whole line of products. A product may found to have a design defect under the "Consumer Expectation Test." This test requires that the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

Lastly, a product may have a marketing or warning defect. A manufacturer may be liable for failing to provide adequate warnings of the dangers associated with the product or how to avoid injury.

Louisiana Products Liability Act Protects Victims
The Louisiana Products Liability Act, codified in the Louisiana Revised Statute Section 2800.51 et seq. Under the act, a victim may establish a case against a manufacturer of a defective product by showing that they suffered damage that was proximately caused by a characteristic of the manufacturer's unreasonably dangerous product during a reasonably anticipated use of the product.

In order to establish that the product was "unreasonably dangerous," a victim must show that the product was unreasonably dangerous in its construction, composition, design, or inadequate warning. A plaintiff may show that the product was "unreasonably dangerous" by showing that:

"at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from the otherwise identical products manufactured by the same manufacturer."

Therefore, if a plaintiff could show that their particular range was significantly different in design from what the manufacturer required in that particular range, this would likely establish that the product was "unreasonably dangerous." In addition, a victim would be able to establish that their range was "unreasonably dangerous" by showing their particular range differed significantly from other identical ranges by the same manufacturer.

The Campbell's were successful in their preliminary motion as the court failed to side with GE regarding their requests for summary judgment against the claims of product defect and the use of an expert witness. This case also demonstrates the importance of an expert witness in trial as, in this case, they can support the finding of a local fire marshall or other blame assessment and be important in winning a case in court.

If you have been injured because of a dangerous product, get help now. Contact the Berniard Law Firm by calling 1-866-574-8005.

Because of the nature of asbestos-related diseases and the way victims contract them, injury cases involving asbestos can be complicated. Lengthy exposure to asbestos in Louisiana and the long latency, or development, of asbestos-caused diseases take these cases outside the realm of typical personal injury cases. While this framework is not perfect, it still provides asbestos victims an avenue to seek compensation for their injuries.

In the case of Cole v. Celotex, 599 So.2d 1058 (1992), the Louisiana Supreme Court recognized the difficulty of applying pure tort - or personal injury - principles to asbestos cases and handed down several important rules for asbestos injury cases coming after it. By reviewing the Court's analysis of when, legally speaking, an asbestos injury actually occurs, it is our hope that you can better understand the issues involved and how you might be able to receive compensation for any damages you face because of exposure. What's more, determining the legal timeframe is critical, as timing can affect both a plaintiff's right to file suit as well as the law that applies to the case.

The plaintiffs in the Cole case had all been exposed to asbestos during the course of their job duties. They brought suit seeking compensation from several manufacturers of asbestos-containing products. They also sued their former employers, claiming that the employers' negligence and failure to create a safe work environment contributed to the plaintiffs' injuries due to asbestos exposure.

After several appeals, the case landed in the Louisiana Supreme Court. The Court was asked to address several specific issues. Before tackling those, however, the Court had to confront an essential issue of determining the legal timeframe in which an asbestos injury occurs. The Court recognized that this is one aspect of tort law that does not operate well in asbestos cases. In its ruling, the Court stated

"Simply put, the requisites for asserting a [tort] cause of action are 'a wrongful act and resulting damages.' The problem with the suggested approach, however, is that the concepts upon which it is based were designed for handling traditional tort suits, and those concepts are inept for identifying the key 'events' giving rise to a cause of action for long-term exposure to asbestos in the workplace."Cole, 599 So.2d at 1065.

The Court continued, citing some federal court decisions:

"The factual predicate giving rise to potential liability from asbestos exposure is simply different from those that generated most tort doctrines [and] thus such cases differ in legally important aspects from the types of injuries that present tort doctrines were designed to accommodate." Id.

Because of both the "slow development" of asbestos-caused diseases and the "lengthy latency period" typical of most, there is a "temporal separation" between a defendant's injurious conduct and the appearance of a plaintiff's injury. That separation is somewhat unique to asbestos injury cases. In a car accident injury, for example, the injury, the act that causes the injury, and the moment at which those occur are readily evident. In contrast, the characteristics noted by the Court - slow development and latency - make determining the date of an asbestos injury "virtually impossible, medically and legally." Id. at 1066.

Regardless of the difficultly of "pinpointing" the exact time of an asbestos injury, the Court recognized that the timing of the injury affects several aspects of a case. Thus, it concluded:

"The key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later." Id.

Thus, instead of trying to identify a single act that led to the injury, the Court was willing to accept the whole range of injurious conduct. While that seems like a straightforward and common-sense approach, it is still important to have the rule state as much.

Because relevant aspects of the law had changed during the time period involved in the Cole case, determining the time the injury occurred was essential to determining which law applied. Also, the Court discussed how the rules of prescription must be relaxed to accommodate long-latency diseases, an aspect dealing with the time a plaintiff has to bring a lawsuit. Make sure to return to this blog in the coming days for more information on this topic or click over to our section dedicated to mesothelioma and asbestos for more information.

For those Louisiana residents, whether they live in Baton Rouge, Lafayette, New Orleans, Mandeville, Lake Charles, Shreveport or Alexandria, that have questions dealing with Chinese Drywall, feel free to look at our Chinese drywall information section. This blog section focuses on the timeline of this toxic wallboard in America. Whether featuring Chinese drywall symptoms or Chinese drywall lawsuits, our posts hopefully will help people both in Louisiana and a variety of Gulf Coast states like Texas, Mississippi and Florida better understand this complex issue.

If you have any questions on the complex legal issues that exist with this matter, including "How do I know if I have Chinese drywall?" or "How to Identify Chinese drywall in your home?" feel free to contact our firm. It is important to take action as soon as possible in order to secure your legal rights. Click here to contact us today.

Residents of Louisiana, Florida, Virginia and at least twenty-nine other states have reported problems associated with the use of imported Chinese drywall. Reported problems include the emission of foul odors and physical damage to property. In addition, some homeowners have complained of health problems such as headaches, coughing and general respiratory problems.

Although U.S. government investigations into the Chinese drywall issue are ongoing, a recent U.S. Consumer Product Safety Commission ('the Commission') study identified a link between Chinese drywall and the corrosion of metal components in homes. As part of its ongoing investigation, the Commission has issued a precautionary fire alert.

Many affected homeowners have taken a proactive approach. In one U.S. District Court case in New Orleans, plaintiffs' attorneys have requested that the court require Chinese drywall manufacturer Knauf Plasterboard Tianjin Co. ('Knauf') to pay to restore an affected house to the condition that it was in before corrosive gases allegedly damaged property. Although Knauf's attorney agreed that Knauf should remove the drywall from the affected home, the company's attorney argued that Knauf should not be held responsible for the restoration of the home, questioning the claim that Chinese drywall corroded fixtures. According to one source, at least 2,100 people in the U.S. have sued in federal courts, claiming damage from Chinese-made drywall.

Moody's Investors Service ('Moody's') estimates that insurers' claims and litigation costs associated with Chinese drywall will be significant. Nonetheless, the extent of these costs remains unclear. Liabilities will ultimately depend upon how courts rule in ongoing cases. Because reported Chinese drywall problems have been concentrated in Louisiana and Florida, concerned Louisiana homeowners should reference this blog in the future for updates. Alternatively, concerned homeowners may contact the Berniard Law Firm for immediate assistance.

Although Moody's predicts that Chinese drywall will not become a major insurance liability like asbestos claims, some commentators have already begun to draw analogies. Asbestos is a fibrous material that was once commonly used in construction. However, as awareness began to spread that exposure to asbestos can lead to potentially life-threatening illnesses, injured plaintiffs began to sue asbestos manufacturers and suppliers. Asbestos litigation soon became the most expensive mass tort in U.S. history, involving the filing of hundreds of thousands of cases in federal courts. Asbestos cases are complicated by the fact that for some people, asbestos-related symptoms do not manifest themselves until years after exposure. Nonetheless, courts have held manufacturers and suppliers liable for asbestos-related injuries under tort theories of negligence and products liability. While Moody's, again, notes that Chinese drywall will likely not reach the threshold and financial liability that asbestos has, the toxic wallboard is still a danger and a problem.

Prevailing plaintiffs have recovered compensatory damages, and in exceptional cases, punitive damages for asbestos related harms. The same will likely be true for those with Chinese drywall installed in their home. While the courts have still not ruled on cases involving the toxic import, it is important for those who believe they have the faulty wallboard in their home to have it checked out. By having a professional come and inspect the drywall used in your home, you can be best prepared for any future litigation that may come of it. Part of that preparation, though, involves getting the best legal representation you can.

For more information on our firm's involvement with Chinese drywall litigation please contact us or check out our blog section dedicated to news and updates on the matter located here.

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

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

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

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

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

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

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

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

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

How does the law treat someone bringing a lawsuit who may be somewhat at fault for the incident? Let's assume an injured Louisiana resident wants to sue another driver for crashing into her vehicle. In his defense, the defendant driver argues that the plaintiff failed to properly yield, and is therefore at least partly to blame for the accident.

Depending on whether the jurisdiction follows the contributory, purely contributory, comparative, or purely comparative negligence regime, the defendant may be fully liable, partly liable, or not liable at all for the damages sustained by the plaintiff. These legal tests of contributory and comparative negligence are critical for injured plaintiffs to understand, as they may decide just how much or how little one can recover from a defendant if the accident was not fully the fault of just one party. Louisiana follows a pure comparative model. Whereas other negligence regimes might bar a plaintiff from recovering damages if they are more than 50% at fault for the injuries, the Louisiana model allows a jury to award damages as long as the defendant is simply a little bit at fault.

The defense of comparative negligence is critical in products liability litigation. Recent headlines regarding the Toyota recalls reveal that the car manufacturer may already be laying the groundwork for this type of defense in anticipation of future litigation.

In a recent New York Times article written by Nick Bunkly, Toyota claims that after a San Diego man's Prius failed to stop, an "examination showed that the car would have stopped when the driver firmly applied the brakes." Experts in products liability litigation are waiting to see just what methods Toyota is using to make such determinations. If a court buys such argument as plausible, it may be up to a jury decide how much of the incident was the fault of the driver and how much was the fault of the car itself. Just as much an example of how expert testimony can affect the outcome of a trial, this also serves to illustrate how culpability is determined for the accident.

Just like Louisiana, California is a purely comparative negligence jurisdiction. This means that a Toyota driver's ability to recover monetary damages for his injuries, is directly proportional to the percentage he was at fault. Even if Toyota prevails in convincing a jury that an individual driver was at least partly to blame for a particular accident, that driver may still be able to recover a percentage of damages from Toyota based on the pure comparative theory. If a jury were to find that the plaintiffís inability to press the breaks caused 75% of the damage, the driver could theoretically still recover 25% of the total cost of the damages.

All too often, would-be plaintiffs are left frustrated that their injuries are not fully compensated, even for what seems like a minor mistake on their own part. Other times they may be barred from recovery completely. The car-crash example from the beginning of this article was taken from a real story of a tragic car accident this past December in Metairie, Louisiana. According to the report, the deceased woman who sustained the injuries failed to yield as the other driver was following the speed limit. Therefore, even if her surviving family members were to bring a wrongful death lawsuit in a "plaintiff-friendly" pure comparative jurisdiction like Louisiana, a jury could reduce any recovery by the percent she was at fault, even to the point of zero.

With such a flexible system, plaintiffs must rely on the expertise of their legal counsel to analyze all the facts of the case. Minor details in any one accident could mean the difference between large and small percentages of recovery.

Continue reading "How Might Toyota Defend Itself?: A Lesson in Pure Comparative Negligence " »

86 year old Margie Davis of Columbia was shopping in the West Monroe Wal-Mart store during Thanksgiving week when she was tragically killed. A shelf full of holiday towels fell on Ms. Davis and she died a day later from her injuries. In responding to the Davis family's lawsuit against Wal-Mart, the retail giant has indicated in court documents that they are not responsible.

As noted in an article on myarklamiss.com,

Wal-Mart attorney Michael Adams declines comment but in a response to the lawsuit he denies everything except that Davis entered the West Monroe store. One part even blames Davis saying quote'... allegations which defendants deny were proximately caused by negligence and fault of plaintiff or plaintiff’s mother, Margie Davis,' said Adams’ (Wal-Mart) plea filed in federal court.

He also blames customers for possibly causing the accidental death.

According to her family, Ms. Davis walked into Wal-mart happy and healthy. According to the coroner's office, she left the hospital the next day, having passed away from massive head and chest injuries.

While Wal-mart's liability will be decided in court, Ms. Davis' family deserves their right to pursue a legal remedy. If a loved dies and the death was the fault of another person or entity, the party responsible for the death may be liable for a variety of damages. Such damages can include medical expenses, lost wages, (necessary for example, if the deceased was the primary breadwinner for a family) and compensation for pain and suffering. Damages may even include punitive damages meant to punish the party at fault.

Wrongful death damages that are available can depend on the relationship of the survivors to the person who has died. Parents may get damages for lost companionship if a child has died, for example. Damages for a spouse may include financial contributions the deceased would have made.

Typically in a wrongful death lawsuit the plaintiff must prove that their loved one would not have died without the action or inaction (neglect) of the defendant. Here, even if Wal-mart is found not liable, another entity may be responsible for damages. If the shelf that fell on Ms. Davis was defective, the company that produced, distributed, or otherwise came into contact with the shelf may be liable. When someone has been injured or killed because of a dangerous or defective product the case becomes one of products liability.

There are typically three types of products liability cases: manufacturing defect, design defect, and failure to wan. Manufacturing defects occur during the manufacturing process and typically involve poor materials or workmanship. Design defects occur when the product design is inherently dangerous. Failure to warn problems involve products that have inherent, non-obvious dangers. Each different type of products liability requires different elements of proof.

If you suspect that you have been injured or the death of a loved one was the fault of another person-due to a defective product or otherwise, it is important that you have an attorney on your side willing to work through all of the issues and provide you with the greatest chances of success in your claim.

Continue reading "Wal-Mart Claims They Were No Responsibility for Columbia Woman's Death" »

As reported in the St. Charles Herald Guide in August 2009, two separate plane crashes occurred less than 24 hours apart. Both happened on private air strips, involved experienced pilots, and occurred while the planes were still on the ground.

The first crash was on August 23rd. James F. Miller was undergoing pilot re-certification at St. Charles Parish airport in Ama. Miller and Air Force Lieutenant Colonel Wendell Lee Collins were on board when the plane veered left in takeoff, struck a tree, and was engulfed in flames. Both men were killed.

The other accident was the following afternoon in Taft when the plane of Lucien Taft Triche flipped over as he taxied down a private runway. Triche had been working on his plane and was taking it out for a test run. When the plane flipped Triche rolled out and was trapped under the wing. He was taken to the hospital with broken bones.

Accidents such as these raise questions about what might have caused such disaster. Sometimes defective or improperly installed products can malfunction, and tragedy may result. When someone is injured or killed due to a defective product, the company that manufactured the product may be liable for damages such as medical expenses, lost wages, or pain and suffering.

There are three major types of products liability cases. The first, manufacturing defects, deals with the product imperfection that occur in the manufacturing process; typically due to poor quality materials or workmanship. The second, design defects, occur when a product’s design is inherently dangerous. The third, failure to warn, or marketing defects, occur when a company does not adequately warn users that its products may carry non-obvious dangers.

Others beyond the actual manufacturer of a product may also be liable in a products liability case. Distributors, repairers, assemblers, suppliers, and anyone else that may have come in contact with the product before it reached the injured party bringing may be found liable. While these cases can be based on a variety of legal theories, (negligence, strict liability, or breach of warranty) in every situation it must be proven that the product was actually defective in order for a claim to be successful. This can be very difficult.

The intricacies of products liability law are complex and nuanced.

Continue reading "Two St. Charles Parish Planes Crash in 24 Hours: Could Airplane Parts be to Blame? " »

The son of a woman who died in her Bastrop apartment last September has filed a civil lawsuit seeking "damages for the fear, pain and ultimate death of his mother and the grief and mental anguish he experienced from her death," according to reports from the Monroe News-Star.

The victim, Merrimac Ellis, died from injuries she suffered in the fire while she was trapped in her power wheelchair. The petition claims that the management of her apartment in the complex for seniors negligently failed to resolve "unreasonably dangerous conditions" that were the cause of Ellis' death. In addition to seeking damages from the Bond House apartment complex and its insurance underwriter, Ellis' son is also seeking to recover from the manufacturer of her power wheelchair and the companies maintaining the fire alarm and sprinkler systems at the complex.

The petition asserts that Delta Fire Protection Systems Inc. failed to "maintain sprinkler heads" and that Vantronics Security System of Monroe, Inc. failed to "maintain an audible alarm." Neither the sprinkler system nor the fire alarm properly responded to the fire that claimed the victim's life.

The investigation of the State Fire Marshall's office determined that the fire responsible for Ellis' death started under her power wheelchair's seat. Allegations in the petition also state that Invacare Corp., the manufacturer of Ellis' wheelchair, has previously issued recalls over wheelchairs that have caused fire related deaths.

State Fire Marshal investigators concluded that the sprinkler in Ellis' apartment did not have problems, but the office does "have concerns about the sprinkler system throughout the building." The office reported that the owners of the apartment complex will be installing a new system. The Fire Marshals also expect the owners to issue a warning to residents and evaluate the building's evacuation plan.

While a multitude of legal issues exist in this matter including product defect, negligence, duty of care and others, it is impossible to assert how the court will rule. Only through the careful analysis of an attorney can an everyday individual who has been hit by tragedy understand their legal rights and what compensation they may be owed due to the action, or lack thereof, of other people.

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