Louisiana Personal Injury Lawyer Blog

It is well settled in Louisiana jurisprudence that an appellate court's review of a trial court's apportionment of fault in a negligence action is subject to the manifest error standard. In other words, in order for an appellate court to overturn a trial court's assessment of fault, it must conclude that no reasonable factual basis exists to support the trial court's finding and that it is clearly wrong. The Third Circuit reached this conclusion in Thibodeaux v. Trahan, a recent case that was marked by witness testimony that was "externally conflicting and often internally inconsistent."

On the afternoon of October 18, 2006, Melinda Trahan was driving a school bus owned by the Lafayette Parish School Board on Richfield Road in Duson. Harold Thibodeaux, driving an RV, pulled out from a side road in front of Trahan's bus and made a quick left turn into the parking lot of Thib's Corner, a grocery store. Trahan, who approached Thibodeaux's RV from the rear, also turned her bus into Thib's Corner, at which point the two vehicles collided. Thibodeaux suffered a knee injury in the collision and sued Trahan and the school board for damages. The trial court heard testimony from the parties as well as several witnesses and ultimately found both Trahan and Thibodeaux at fault for the accident. It awarded Thibodeaux damages for pain and suffering and medical expenses, but reduced the amount by 40 percent, the amount of his fault. Thibodeaux appealed, arguing that the trial court erred in finding him partially at fault for the accident. On appeal, the Third Circuit noted that "the trial court was left with numerous conflicting versions of how the accident occurred." It did, however, make specific findings of fact. Specifically, the trial court found Thibodeaux at fault "for having pulled out in front of Ms. Trahan while driving an RV in the rain while she was driving a school bus." It concluded Trahan was at fault because she should have maintained better control of her bus when she saw Thibodeaux's RV pull out into her path. The Third Circuit reviewed the testimony from the record and arrived at a different explanation of how the collision occurred: it concluded that Thibodeaux did nothing wrong when he pulled onto Richfield Road from the side street, but that he "failed to ascertain that the left turn could be made with reasonable safety" and therefore breached his statutory duty to execute the turn properly. Still, the court concluded that "the majority of the fault in this instance should be allocated to Ms. Trahan," as she "was in a better position, as the following vehicle, to prevent the accident from happening." The court concluded that the accident would have been avoided if Trahan had stopped her bus "within the adequate stopping distance existing between her and the RV," rather than being forced to take an evasive turn into the Thib's Corner parking lot. Accordingly, the court reversed the trial court's apportionment and assessed 80 percent of the fault to Trahan and 20 percent to Thibodeaux.

Continue reading "Third Circuit Rejects Trial Court's Apportionment of Fault in Lafayette Auto Accident" »

On behalf of the Berniard Law Firm, we'd like to wish all of our clients and employees a Happy and Safe Holidays and New Years.

The blog will resume postings in 2012!

Summary judgment can seem like a punishment to the defeated party. Because of the final nature of these judgments, appellate courts review them de novo. This standard of review grants the appellate court the ability to look at the entire record in the court below. The Bates family experienced an additional loss at the appellate level in Bates v. E. D. Bullard Company. They lost at the trial level as a result of a summary judgment and was later affirmed on appeal.

When a judge grants a party a summary judgment he or she is in effect saying that the opposing party has no case as a matter of law and that there will not be a trial. The party that has been defeated will, however, be able to appeal this decision to the higher court. De novo review is necessary when appealing a summary judgment so that the appellate court can make the most educated decision about whether the winning party deserved a summary judgment. This level of scrutiny is higher than most.

In the case in question, it was determined that the plaintiffs did not establish a case as a matter of law against the sand defendant for several reasons. Sand is not a dangerous instrumentality; there is nothing about sand's very nature that makes it explicitly dangerous or harmful. The defendant sold the sand to the ill plaintiff's employer, deemed by the court to be a sophisticated user. If a buyer is sophisticated, there is no duty on the part of the manufacturer to warn the buyer of possible ill effects of certain uses of a product. This is true even though the seller likely knew or should have known that the sand would be used for sandblasting. The sand defendant's knowledge, real or constructive, did not bear on its lack of a duty to warn the sophisticated user buyer because there was no real way of telling what the buyer would do with the sand.

It appears from the discussion in this case that the only duty to the plaintiff runs to the plaintiff's employer. Mr. Bates' employer likely had some duty to warn him about the danger of sandblasting with inadequate respiratory equipment. The court mentions O.S.H.A. requirements that apply to this situation. While the plaintiff may still have been able to file suit against his employer if he did not already do so in this case, the fact remains he did not have cause against the sand seller for any actions that were done improperly.

There are many reasons to apply strict liability to a class of cases. There are also many consequences of doing so. Strict liability makes a person or entity responsible for the consequences of his, her or its actions or inactions regardless of culpability. There are certain portions of human conduct and interaction to which this standard lends itself. Business dealings between sophisticated entities who likely have the assistance of counsel is not one such area.

The sand defendants were entitled to their summary judgment in the eyes of the trial court and the appellate court as there was no basis for the claim against them under Louisiana law under strict liability or negligence. The fact remains that all the sand seller did was sell a relatively innocent product to another company without warning. The court held the other company to a higher standard than if the buyer had been an individual. The duty, if any exists, falls on Mr. Bates' employer as the sophisticated buyer of an non-hazardous instrumentality to notify the users of any potential dangers which may exist. As a result, the plaintiffs failed to recover against the sand defendants.

Continue reading "Summary Judgment on Sand Built of Solid Foundation by Louisiana's Third Circuit" »

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca's list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca's nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca's long line of cases to rest.

The first of these restrictions was the court's upholding of the defendent's plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant's plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca's case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca's nu
llity actions were a failure to state a new claim.

A second deterrent to brining frivolous, harassing, or duplicitous suits is the possibility of monetary sanctions. Rules of civil procedure require that an attorney make objective inquiries into the facts of a case and the law that pertains to it. These inquiries are held to a high standard as they are seen as an attorney's duty. This means that one's subjective good faith inquiry is not sufficient. When an attorney files a claim, it is important that case history is analyzed to ensure that res judicata does not apply. A failure to inquire about previous claims is a failure to impose the applicable law and is essentially poor lawyering. This was the case in Mendonca's appeal. Any attorney who objectively analyzed the situation would have known that the claim was precluded through res judicata. Yet, Mendonca proceeded. The court interpreted this as an abuse of the judicial system and an attempt to harass the defendant. This abuse justifies the imposition of sanctions.

Sanctions are typically defined as an order to pay to the other party the amount of reasonable expenses through the employment of an attorney. Yet, "reasonable" is not confined to the actual expense accrued by the attorney. Instead, "reasonable" has been interpreted to mean additional costs that act to deter, punish, and compensate. When sanctions are imposed by a trial judge they are unlikely to be appealed. Appellate judges tend to give deference to the trial judge's intimate knowledge of the case, litigants, and attorneys. For these reasons, Mendonca was sanctioned in the amount of $10,000, all of which were upheld on appeal.

A third way that a court can punish an individual as a deterrent is to issue a sanction revoking in forma pauperis status. In forma pauperis is a legal termed used by a judge to allow a poor individual to file a legal case and/or represent oneself at trial. Allowing one to claim this status is to essentially cut most court associated costs for the needy individual in order to ensure due process. Mendonca qualified and was granted this status. However, courts have held that in forma pauperis status is a privilege, not a right. Therefore, any abuse of this status will result in revocation. The most common reason why in forma pauperis status is revoked is because one brings frivolous suits. Mendonca did this in his case and was punished accordingly.

Res judicata, sanctions, and other rules of civil procedure are complicated, requiring a full analysis of the facts and the law. Such situations should only be approached by a licensed practicing attorney.

Continue reading "Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits " »

In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas's manager, accused her of stealing over $500 from the company during February and April that year. Goulas was tried for felony theft and acquitted. Following the criminal trial, she filed suit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones "intentionally and negligently inflicted emotional distress" upon her, and that their accusations were "founded in malice to damage her person and reputation." The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas's claims were based on the defendants' actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants' exception of prescription and dismissed Goulas's claims with prejudice.

Goulas appealed, alleging error on the trial court's ruling that her defamation claim was prescribed. Goulas reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. "It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended." However, the court explained, the suspension of prescription applies "only to allegedly defamatory statements made by parties to a lawsuit." In this situation, Frederick and Jones were not parties to Goulas's criminal prosecution, so the prescription suspension did not apply. The court concluded that "since there has been no suspension of the 2008 alleged defamatory statements," the trial court properly granted the defendants' exception of prescription.

This result was no doubt a painful lesson to the Goulas that prescriptive periods and other rules of Louisiana civil procedure can be complex and confusing. At worst, such as here, missing a deadline can prove fatal to a plaintiff's case. Accordingly, it is critical that victims who think they may have a claim should consult a knowledgeable attorney immediately. Time may very well be of the essence in order to secure a day in court.

Continue reading "Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription " »

Under the Class Action Fairness Act (CAFA), federal courts have jurisdiction over class action claims. There are exceptions, however, including what is known as the “local controversy exception.”

The plaintiff, Opelousas General Hospital Authority, sued in state court three defendants, located in Texas, Illinois and Louisiana, for violations of the Louisiana Racketeering Act. The defendants removed the case to a federal district court under the Class Action Fairness Act and diversity of jurisdiction. The defendants were able to claim diversity of jurisdiction because they asserted that joinder of the only in-state defendant, LEMIC, was fraudulent. The plaintiffs then attempted to remand the case back to state court, asserting that the case fit within CAFA’s narrow “local controversy exception.”

The “local controversy exception” of the CAFA allows a plaintiff to bring a class action lawsuit in state court rather than federal court when several requirements are satisfied. These requirements are that: 1) more than 2/3 of the proposed plaintiffs (as a class) are citizens of the state in which the action was originally filed; 2) principal injuries resulting from the alleged or related conduct of each defendant occurred in-state, and 3) at least one defendant falls under a very specific category. This category covers defendants who meet all of the following: 1) significant relief is being sought from that defendant, 2) the defendant’s conduct forms a significant basis for the claims, 3) it is a citizen of the originally-filed state, and 4) the principal injuries the plaintiffs suffered happened in the originally-filed state. In such a case, the federal district court will “decline to exercise its jurisdiction” and the case will go back to state court. Additionally, for the 3 years before the original class action is filed, no other similar class action, alleging similar facts, can have been filed against any of the defendants.

Clearly, the plaintiff has quite a hurdle to surpass if it wants to claim the local controversy exception. Because the plaintiff must show that one of the defendants fits the above criteria (and LEMIC was the only possible candidate), it had to show that LEMIC’s behavior formed a significant basis for the claim. At the district court, however, the plaintiff did not present enough evidence to satisfy the appellate court. The fact that LEMIC and the other defendants may have been acting in concert was not enough to show that LEMIC’s behavior was significant enough.

Therefore, the United States Court of Appeals for the Fifth Circuit vacated the order to remand and reinstated the case on the federal district court’s docket. If you face a similar ordeal, it is important to hire the proper attorney to make sure that your case is maintained and that you receive the ruling you deserve.

A common litigation strategy employed by savvy plaintiffs is choosing the most favorable jurisdiction in which to file a complaint. Favorability can turn on a number of factors including geographical convenience, the perception that a "local" jury may be more sympathetic, or that certain judges are more welcoming to the plaintiff's particular cause of action than others. The choice of forum is governed by a series of procedural rules, but in many instances a plaintiff's case may be properly filed in more than one parish. Or, in a case involving multiple defendants, there may be a need to decide between filing in state or federal court. Generally, state court is preferred by plaintiffs in tort actions, but federal court may be the only available forum when one or more defendants is not a resident of Louisiana. Accordingly, a critical part of the forum selection strategy is deciding whom to name as a defendant. Federal civil procedure rules seek to limit the parties' unfair manipulation of defendants to affect forum choice.

The term "complete diversity" refers to the situation where none of the plaintiffs in a case is from the same state as any of the defendants; this results in jurisdiction by the federal court. A plaintiff who prefers to have his case heard in state court may attempt to name a defendant who resides in his own state in order to destroy complete diversity. The concept of "improper joinder," however, can be employed by a defendant who favors federal court to challenge the plaintiff's inclusion of the in-state, or "non-diverse," defendant. To do so, the objecting defendant must demonstrate either

(1) actual fraud in the pleading of jurisdictional facts, or
(2) [the] inability of the plaintiff to establish a cause of action against the non-diverse party in state court. See Smallwood v. Ill. Cent. R.R. Co.

A recent example of this process can be found in Kemp v. CTL Distribution, Inc. in the U.S. Court of Appeals for the Fifth Circuit. The case involved a wrongful death action filed by the family of Martin Young. Young was employed by the Delta Trailer Company in Geismar, Louisiana where he worked in a truck terminal owned by CTL Distribution. Young died from exposure to toxic fumes that came from chemicals that were improperly left in a tanker trailer. The lawsuit was originally filed in state court and named as defendants CTL, a Delaware corporation with its principal place of business in Florida, and Roger McLelland, a Louisiana citizen and manager of the CTL terminal where Martin Young died. CTL removed the case to the U.S. District Court for the Middle District of Louisiana, alleging that McLelland was fraudulently joined. The district court agreed, concluding that the plaintiffs' executive-officer negligence and
spoliation-of-evidence claims against McLelland would fail in state court. On appeal, the Fifth Circuit conducted its own review of the pleadings and determined that "Plaintiffs have no possibility of prevailing on either claim against McLelland, [and] the district court did not err in finding that McLelland was improperly joined to defeat federal jurisdiction."

If you have been injured by someone's negligence, you need an experienced attorney to help you navigate the complex waters of tort litigation, including the quesion of which court to bring your action.

Continue reading "Geismar Wrongful Death Action Focuses on Choice of Litigation Forum" »

Our previous post discussed the various principles of contract law at work in the Mendoza case, which can be viewed here. This case involved a dispute between an injured worker's employer and another company with which that employer had a contract. A provision of this contract provided for indemnification, the assuming by one entity of the liability of another.

Companies often assume the liabilities of other entities with which they hold contracts. This is seen as a cost of doing business. Indemnification makes up part of or the entirety of the consideration for some corporate contracts. Contracting away your liability can be extremely valuable. The dispute in this case was when the contract actually became effective. The court used various principles discussed in its opinion and the previous post on this topic to determine that the trial court was correct in denying summary judgment to one party and granting it to the other. Mid South, Mr. Mendoza's employer, was to be indemnified and held blameless by EXCO as per their 2008 agreement.

In general, this dispute really came down to an issue of timing. The two companies in question signed an agreement in December 2008. The incident that created Mr. Mendoza's cause of action occurred in October 2007. He filed suit in August of 2008. Mid South did not file an answer to the complaint until July of 2009. After this filing Mid South demanded defense from EXCO; this defense was promptly denied. Mid South again attempted to illicit indemnification and defense from EXCO in September 2009 based on a 2004 contract that Mid South held with Anadarko, a company whose interests were subsequently absorbed by EXCO. EXCO did not respond until after Mid South filed a cross-claim against EXCO. EXCO filed an exception and answer in April 2010 along with a motion for summary judgment. In July 2010, Mid South filed its cross-motion for summary judgment. The former motion for summary judgment was denied and the latter granted in August of 2010. When the trial court denied EXCO's motion to designate the judgment as appealable, EXCO sought aid from a higher court. The Court of Appeal for the Second Circuit of Louisiana granted EXCO's writ application but ultimately sided with the trial court.

The crux of the appellate court's decision was its interpretation of the "Effective Date" provision of the contract which indicated that the agreement was in full force and effect "on the date first above written or on the date on which CONTRACTOR (Mid South) first commenced the performance of any services for COMPANY (EXCO) or first provided goods, equipment or facilities to COMPANY, whichever first occurred, and even though this Agreement may not then have been reduced to writing." There was conflict among the parties whether this clause or the type-written date "December 16, 2008" should take precedence. The court determined after its de novo review of the trial court record that EXCO should have known that it was assuming liability for events earlier than December 16, 2008 because it drafted the 2008 Agreement. EXCO also alleged error because the type-written date was not given precedence over the pre-printed contract language. The court found this allegation to be without merit. The "Effective Date" provision of the contract was drafted with the potential of the occurrence of a situation like this one in mind. It specifically contemplates an incident like Mr. Mendoza's in its language. It was the opinion of the appellate court he phrase "December 16, 2008" being type-written was not as important as influential as the type-written provisions in the precedential cases making up the common law in this area.

A court's interpretation of a contract can make a crucial difference to the parties involved. EXCO tried to get out of a contract that it had drafted itself. This is a difficult position from which to argue. Almost all of the interpretation tools that a court may use will caution against giving undue deference to the drafter of the contract. Companies must strive to write contracts containing language by which they intend to be bound. Courts must strive to fairly and equitably interpret contracts but they do not have to interpret them according to unexpressed intentions for which the contracts contain no basis.

Continue reading "Second Circuit Case Demonstrates Importance of Proper Contracts" »

A well-written contract can not only solve most problems, it can prevent most problems from becoming problems in the first place. For a contract to have its maximum problem eliminating effect, however, all parties to the contract must agree as to what it mean. Contract law is filled with cases that could have been avoided if the entities involved had simply expressed their terms more clearly or asked the right questions before, during and after the drafting of the contract. While this ambiguity may be intentional by one side or both in the event they think a benefit can be attained, the truth is the best contract is often the one where both parties are simply looking to achieve the main goal fairly. Those instances where ambiguity dominates, however, cause problems. The case of Mendoza v. Grey Wolf Drilling Co., discussed in an earlier post, is one such case.

The Mendoza case was two-fold. It involved questions as to whether and when one company assumed liability for another company. Several contract law principles were implicated in this dispute from which this opinion resulted. Contracts get drafted under the assumption that the parties have reached an agreement. This alleged agreement is nowhere to be found when there is a dispute over the meaning of a contract. When adverse parties give contradictory interpretations of the same contract language a suit often ensues. It is because of the relative frequency of this occurrence that the courts have come up with various rules for interpreting contracts when the parties themselves cannot.

The Court of Appeal for the Second Circuit of Louisiana applied Texas contract law in this case. This was due to an agreement between the parties which was most likely part of the contract itself; there was no dispute over this portion of the contract. For guidance, Texas law contains several well-established principles for evaluating disputed contracts:

First and foremost when interpreting the true meaning of a contract comes the intent of the parties. The parties to the contract presumably know best about what the contract was intended to accomplish and how. This cannot be the only factor in the analysis because when there is a dispute about the meaning of the contract, the parties likely had different intentions in entering into said contract.

The language of the contract is also important. Words can have a myriad of meanings in various different contexts. Courts seek to give the words in a contract one meaning that best suits the occasion. Texas courts seek to "harmonize and effectuate" all of the provisions of a contract. This aim towards harmony is shared in many jurisdictions. Disjointed and unwieldy interpretations of contracts serve none well and only exacerbate disagreements between contracting parties. Courts must seek to interpret the contract as a cohesive document in order to best achieve the ends of the parties. The signatories signed the entire contract so it follows that no portion of the contract was meant to be meaningless.

Theoretically, and in common practice, a court should not edit a contract under Texas law but must seek to enforce the contract as it is written. If a court was free to delete or add provisions to a contract it would be exponentially easier for that court to come to a conclusion as to what the contract was supposed to mean. Despite this added ease, the parties to that contract would be robbed of the contract that they intended. They agreed to the words on the pages of the contract, regardless of their current dispute, at one time. A court must come to a conclusion based on the language that was actually included within a contract, not the language that a court thinks, feels or believes should be included.

It might seem like it would not have to be expressed that a court should seek to avoid a construction for a contract that is "unreasonable, oppressive, inequitable or absurd" but the Texas Court of Appeals made it official. The law of contracts is, at its core, a law of fairness and equity. All language in a contract is supposed to be given its normal grammatical meaning unless otherwise stated in the contract. This too may seem like a meaningless pleasantry that should not bear expressing but in a world where jargon and technical terms are becoming increasingly common, words do not always mean the same thing. One particularly amusing contract dispute once arose out of the meaning of the word "chicken" for purposes of a contract for the sale of certain poultry products.

Our next entry will conclude coverage on this Mendoza principle as well as fleshing out the need for close review of contract provisions and stipulations.

Continue reading "Texas Contract Law Informs Second Circuit Decision" »

When apportioning fault between two or more parties in a negligence action, the finder of fact is given great deference on review. An appellate court may not set aside a trial court's finding unless there is "manifest error" or it is "clearly wrong." Cole v. Dept. of Public Safety & Corrections. In order
to reverse the trial court's apportionment of fault, the appellate court must "find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong." The Louisiana Supreme Court has provided extensive guidance on the trial court's responsibility for allocating fault. The court is "bound to consider the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed." Watson v. State Farm. Furthermore, in assessing fault, the trial court can consider several factors related to a party's conduct, including:

"(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought."Watson

Late in the evening on October 24, 2006, Garold Burdine, then 19, was driving his Ford Ranger pickup truck south on Woolworth Road in Caddo Parish. The road had no street lighting. At the same time, L.C. Robertson was driving a very large and heavily loaded log truck on a side road approaching Woolworth Road. When Robertson attempted to turn out into the southbound lane of Woolworth, he realized he was unable to complete the turn without backing up. As he began to make this maneuver, Burdine's truck struck Robertson's log truck. Burdine was injured in the crash, and Robertson was cited by the local policy for failure to yield while entering the roadway. In October of 2007, Burdine filed suit against Robertson and his employer, Bedsole Wood Corp., the owner of the log truck. The defendants responded that Burdine caused the collision and, at the very least, failed to mitigate damages. The trial court assessed 85 percent of the fault to Burdine and 15 percent to Robertson; Burdine's award of $37,985.71, therefore, was reduced by 85 percent. From this judgment, Burdine appealed.

The Second Circuit, mindful of its obligation of deference to the trial court, reviewed the record and performed its own analysis of the Watson factors. The court noted that Robertson "had an awareness of the danger caused by his actions in obstructing the entire road." The length of the log truck and the width of the road "required him to perform a complicated maneuver to enter the roadway." The risk created by this maneuver was "great, especially considering the diminished visibility" given the late hour of the day. In addition, the court found that, relative to Burdine, Robertson's "capacity was certainly superior," and that there were no extenuating circumstances requiring [Robertson] to proceed hastily and without thought." The court reasoned that Robertson could have made use of a safer procedure for entering Woolworth Road (he made "no attempt to warn motorists that he was blocking both lanes of traffic") and, accordingly, it found that "a greater degree of fault must be attributed to Robertson, a professional driver." The court did not relieve Burdine of all fault, though; it concluded that Burdine "failed to exercise sufficient caution and vigilance" when he realized there was "some activity" involving another vehicle in the roadway ahead. In the court's view, Burdine would have been in a better position to avoid the collision entirely if he had braked earlier. The court concluded that "the trial court was manifestly erroneous in its allocation of fault." Thus, it adjusted the percentages of fault by raising Robertson's responsibility to 60 percent and reducing Burdine's to 40 percent.

This case shows, once again, the importance of establishing a solid record of evidence in the trial court. An appellate court can rely only on the trial record when determining whether the trial judge committed error in apportioning fauly. For this reason, a skilled attorney will ensure that all relevant evidence is presented at trial.

Continue reading "Second Circuit Second Guesses Trial Court's Apportionment of Fault in Caddo Parish Car Wreck" »

Transferring from the deck of your boat to an offshore platform in the Gulf of Mexico to begin your day’s work should not be a terrifying experience. While the transfer involves getting into the personnel basket that transfers you onto the platform and little else, the process itself is not as simple as one plain act. Tragically, this simple transfer does not always occur as planned.

In Michael Channette v. Neches Gulf Marine, Inc. and Seneca Resources Corporation, injured seaman Michael Channette was being transferred from the M/V GOLIAD, operated by Neches Gulf Marine, to an offshore platform operated and owned by Seneca Resources. When the transfer went wrong and Channette was injured, Neches Gulf Marine sought indemnity from Seneca Resources. Indemnification is

"The act of making another "whole" by paying any loss another might suffer. This usually arises from a clause in a contract where a party agrees to pay for any losses which arise or have arisen."

Although Neches Gulf Marine attempted to use parole evidence (essentially evidence laying outside the four corners of the contract) during the appeal to show that Seneca Resources had a duty to indemnify, the Fifth Circuit held that since the contracts introduced were unambiguous on their face, Neches Gulf Marine would not be allowed to introduce parole evidence. The court held that the first contract put forth by Neches Gulf Marine was clear and unambiguous in its expiration before Channette’s injury, and held that the second contract asserted by Neches Gulf Marine clearly and unambiguously failed to identify Neches Gulf Marine as a party that could lead to a duty to indemnify by Seneca Resources.

While the transfer from personnel basket to platform is a complicated one, it is not the only maritime process that can go awry. Accidents at sea happen all too often and workers in this dangerous field of offshore activity should know their rights in the event of an incident or injury on the job.

Continue reading "Injury At Sea & Indemnification: Who Pays? " »

Timing is everything in civil litigation. The difference of a day or two can determine whether a suit is timely or not timely, meaning if the court will even hear the case being filed. As such, the difference between a suit that is timely and one that is not timely can make the difference between a plaintiff receiving full compensation for their claims and a plaintiff (or his or her surviving family members) receiving nothing.

Mr. Jerry Bozeman dedicated his life to protecting others from fire-related disasters. Sadly, while carrying out his duties he was exposed to asbestos due to improperly built and maintained facilities. As a result of the City of Shreveport failing to protect their employees, including Mr. Bozeman, from the hazardous material in the fire station where he spent a great deal of time, the loyal fireman suffered from asbestos,-related mesothelioma. Mr. Bozeman's two children, Corey Bozeman and Matthew Bozeman, brought suit under theories of negligence and strict liability under a claim of wrongful death in addition to survival benefits.

The primary issue before the Court of Appeal for the Second Circuit State of Louisiana on appeal was whether the case was actually able to be appealed to the First Judicial District Court for the Parish of Caddo, Louisiana. There was some contention as to whether the plaintiff could appeal the trial court's granting of the City's exception of no cause of action as to the plaintiffs' wrongful death claims and non-intentional torts. The City was denied motion for summary judgment and its request for another exception to intentional tort claims and executive officer liability; the plaintiffs did not want to appeal these parts of the trial court's judgment.

Under Louisiana law, an appeal cannot be taken from a partial final judgment until it has been designated as a final judgment. This means that a court must designate a partial final judgment in order for an appeal on that ruling to be made. The appellants, the plaintiffs at trial, urged the appellate court to consider their appeal timely. The appeal came less than two weeks after the partial final judgment was certified by a court as a final judgment. This was well within the time that a plaintiff has to appeal a final judgment and, as such, the appellants won their appeal.

Since the appellants were successful in arguing that they in fact had the right to appeal the decision because it was final, the appellate court also had to weigh their case on the merits. The appellate court determined that the trial court has erred in not revising the grant of an exception of no cause of action to the City of Shreveport. Specifically, the appeals court ruled that the lower court failed to match a superseding Supreme Court decision that directly impacted the case.

While the trial court made its initial decision in 2007 based on a 2005 holding by the Supreme Court, this higher court ruling was specifically abrogated. As such, the appellate court in this case determined that holding that decision not to apply retroactively would be unfair to the appellants and ruled in their favor.

Mesothelioma and asbestos litigation is a constantly evolving area of the law. The trial court's decision was not incorrect at the time it was initially rendered due to the fact the Supreme Court is considered to be the overarching law of the land. However, due to the fact that the law changed during the time that the partial final judgment was not an entirely final judgment, a change in ruling took place. When this decision was replaced with a newer one, the lower court's decision both could and should have been changed to comply with the most recent Supreme Court ruling. Because the trial court failed to change its ruling when appropriate, it was found to be in error. You can read more about the case here.

If you or a loved one is suffering from mesothelioma or a loved one has died from mesothelioma, you may be entitled to benefits and awards. Contacting an attorney is crucial to preserve your legal rights before the timing no longer allows it.

Continue reading "Fireman's Survivors File in Time in Shreveport" »

In the event that a landowner plans to do any form of significant work on an area of land, whether cosmetic, such as landscaping, or extensive, the work should be preceded by the contracting of one qualified and certified to inspect the property and physically mark the location of utility cables upon it. This is to prevent damage to the utility cables, and to prevent the costs of repair to the companies which own the cables. Such action invokes the Louisiana Damage Prevention Act - Louisiana Underground Utilities and Facilities Damage Prevention Law.

An incident central to the MCI Communications Services, Inc. v. Hagan case was noted at causing a $20,000 a minute loss to the utility company for every minute the cable was out of commission. It thus seems rational that the possible negligence and/or trespass in damaging the cable, property owned by a utility company, can cause significant troubles, even if it occurs within the property of the landowner.

The most substantial part involved in this case is the determination of what the definition of trespass and negligence is when a landowner affects the transposed property of the utility company. Without a doubt, a landowner has the right to be on and use the land, but the utility company also has been given the right by law to continue to leave its utility cable in/on the land and continue using it, and retains this right even if the contract for use of the land was made with a previous landowner. If a servitude is involved with having the utility cable in/on the land, then there is a possible claim for Trespass to Land in conjunction with a negligence claim. However, if there is not a servitude, and only a right to continue to use the utility cable on the land exists, then the recourse if damage occurs would be Trespass to Chattels, for damage to personal property, not Trespass to Land, as attempted in this case.

The intent question is one of strict liability, whether the only intent needed is the intent to perform the action, in this case intentionally using the backhoe, and a result, damaging the utility cable, occurred. More succinctly, the aforementioned case notes a trespass is "an unlawful physical invasion of property in the possession of another and the only intent required is the trespasser's intent to perform the act which constitutes the trespass." Thus, "an individual need only refrain from taking intentional action that results in harm to another." However, the Louisiana Supreme Court has yet to rule on the intent standard in regard to claims of trespass to underground cables, and hence, the issue at hand. The Certified Question for the Louisiana Supreme Court is:

"Is the proposed jury instruction in this case, which states that "[a] Defendant may be held liable for an inadvertent trespass resulting from an intentional act," a correct statement of Louisiana law when the trespass at issue is the severing of an underground cable located on property owned by one of the alleged trespassers, and the property is not subject to a servitude by the owners of the underground cable but only to the contractual right to keep it, as an existing cable, underneath the property?"

Though the Supreme Court of Louisiana has yet to rule on this Certification Question, as to the standard of intent for trespass in this situation, contact the Berniard Law Firm for further information regarding the outcome of this case, for clarification of the Louisiana Damage Prevention Act, and for assistance in determining if your property is subject to similar issues.

The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA's form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

We will undoubtedly be checking out this list as it is sure to contain content that is of interest not only to residents of Louisiana but across the country. For a directory of 'blawgs,' as categorized by the American Bar Association, you can click here to tour the spectrum of content available by state or topic.

This blog was started as an effort to not only showcase the knowledge of our law firm but to also provide people, whether residents of New Orleans, Louisiana, the Gulf Coast, or throughout the country, a resource that explains how the law is important to their everyday lives. Blogging is a powerful tool not only in the legal profession but as a medium of empowering people who may not realize that an instance of tragedy or harm comes with it legal recourse. We hope that the content we have provided over time has helped people find an answer to legal issues or simply gain a little bit of knowledge about how this country's system of law works. This is said not to shill for a nomination to the aforementioned contest but, instead, to note that this ABA-sponsored contest highlights something we feel strongly about, that being the power of legal blogs.

We hope you continue to enjoy your weekend and will have new content available Monday.

If a company manufactures a defective product, and an individual is injured by that product, the manufacturer may be liable for the damages suffered by the product-user. The product, be it a cleaning supply or an automobile part, or any number of different items found in everyday life, bears an element of responsibility of reliability and worthiness when it is delivered by a manufacturer. When that responsibility is breeched, legal remedy is available.

As the Fifth Circuit described in the seminal case of Matthews v. Remington Arms Co., in order for an injured party to win an action against a product manufacturer, that party must prove: (1) that the party, or another "person or entity" was using the product in a manner reasonably anticipated by the manufacturer; (2) that an aspect of the product directly caused the damage(s) claimed; "(3) the product was 'unreasonably dangerous' either in construction, design, or warning; and (4) the characteristic rendering the product unreasonably dangerous either 'exist[ed] at the time the product left the control of its manufacturer or result[ed] from a reasonably anticipated alteration or modification of the product.'”

If a party can show that a product, used in a way reasonably anticipated, could harm a product-user, the manufacturer may have a legal duty to design its product in a manner which would avoid such harm. As explained by the Fifth Circuit, a reasonably anticipated use is a "use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” If it can be shown that a product was misused and that misuse resulted in the damages claimed by the product-user, then that user cannot collect against the manufacturer for his or her damages.

In the Matthews case, the plaintiff had borrowed a Model 710 rifle from another individual. The manufacturer designed the rifle to be fired with a bolt-assembly pin in place. Warnings were included in the rifle manual stating that the rifle should not be fired without the required pin. According to the Fifth Circuit, the defendant rifle manufacturer had not received any reports, prior to this lawsuit being filed, of its Model 710 rifle being fired without the required bolt-assembly pin. The Fifth Circuit found that someone had removed the bolt-assembly pin, and when the bolt-assembly pin was removed from the rifle in question and was not reinstalled, the rifle's bolt head did not lock with the rifle's barrel when later used by the plaintiff. This resulted in an uncontained explosion which caused the plaintiff's injuries.

In the proceedings below, the trial court had found that the plaintiff's injuries were not caused because the pin was defective, but rather because it had been removed from the rifle. The trial court also determined that the pin had been manufactured according to the applicable specifications. Therefore, the main issue before the Fifth Circuit in Matthews was whether or not it was fair of the trial court to find that the plaintiff had fired the rifle after the bolt-assembly pin had been removed and not reinstalled, as opposed to the plaintiff simply firing the rifle. The Fifth Circuit focused on whether or not the plaintiff had used the rifle in a manner reasonably anticipated by the rifle manufacturer to determine if the rifle manufacturer had a duty to the injured plaintiff, in this case, to design its rifle in such a way as to prevent the harm caused. After reviewing the case, and determining that the pin was missing at the time the plaintiff fired the rifle, the Fifth Circuit agreed with the trial court's finding that the defendant rifle manufacturer should not have expected that someone would fire its Model 710 rifle after its bolt-assembly pin had been removed and not reinstalled. The Fifth Circuit found that the pin could have been removed by the plaintiff or another individual.

As this case demonstrates, cases involving defective products hinge on the facts. Although the court found that the user in this case was the ultimate cause of the damages he suffered, there are many instances where products malfunction through no error on the part of the user.

Continue reading "Fifth Circuit Finds Rifle Manufacturer "Not Liable" for Injuries Sustained After Rifle Firing Resulted in Uncontained Explosion" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After filing a lawsuit, plaintiffs are required to notify defendants of the impending suit so that they may defend and respond to the claim. Without notice that a lawsuit has been filed against them, defendants' due process rights may be violated if an unfavorable judgment is entered or rendered without their knowledge. The time frame for this requirement - commonly known as "service of process" - varies among state and federal jurisdictions. In Louisiana, plaintiffs have ninety days from filing a lawsuit to request service of process, which is known in Louisiana as “citation and service.” The lawsuit officially begins once a defendant receives citation and service because only then will a court have jurisdiction over all of the parties. If service is not completed within the statutory period, defendants may justifiably make a motion to dismiss the case. Plaintiffs, however, may be able to defeat a motion to dismiss if they can show good cause for being untimely with the requirement. This issue was recently before the Supreme Court of Louisiana in George Igbinoghene and Sebastian Busari v. St. Paul Travelers Ins. Co.

In the seminal case, Igbinoghene and Busari (hereinafter "plaintiffs") filed their petition in the parish of Orleans on May 18, 2007, but failed to request service within ninety days of the filing date. St. Paul Travelers Insurance Company (hereinafter "St. Paul") filed a motion to dismiss for insufficient service of process. The district court denied the motion and St. Paul appealed.

On appeal, the plaintiffs argued that denying the motion to dismiss was proper because good cause was shown for being untimely since they agreed to St. Paul's request to extend the time to file responsive pleadings. The Supreme Court found this argument unpersuasive given that such events occurred in 2008 and 2009, which were outside of the relevant period. Moreover, the Supreme Court stated that requesting an extension to file pleadings did not act as an express, written waiver of citation and service. In addition, the Supreme Court declared that St. Paul's knowledge of the suit did not make citation and service unnecessary. To support this assertion, the Supreme Court relied on Naquin v. Titan Indemnity Co., a Louisiana Fourth Circuit Court of Appeals case, which held that "defendant's actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions."

Accordingly, the Supreme Court reversed the decision of the lower court and granted St. Paul's motion to dismiss because it found that the district court erred in denying the motion. Igbinoghene and Busari v. St. Paul shows us that it is important to have competent representation that will successfully prepare for and fulfill the procedural requirements in bringing a lawsuit. As this case demonstrates, there are grave consequences, such as losing your case, if the lawsuit is challenged and dismissed on procedural grounds.

Continue reading "Louisiana Supreme Court Dismisses Plaintiffs' Case Based on Failing To Show Good Cause For Untimely Service of Process" »

Over the past two decades, America's working class has suffered the impact of exposure to asbestos. Before it was known that asbestos could lead to serious illness and death, people worked around the material without hesitation. Problems with exposure arise due to the fact that the fibers of asbestos, once inhaled, can have a very negative impact on your lungs and body. Those who have been exposed to asbestos can contract mesothelioma, a rare kind of cancer that can develop from the protective lining that covers many of the body's internal organs. It is an aggressive and deadly kind of cancer that has very little remedy; usually the best type of treatment is the keep the person as comfortable as possible. Even worse, mesothelioma can have the same symptoms of other diseases, so it can be misdiagnosed very easily and lead to significant delays in treatment. What's more, the symptoms of the disease do not appear right away. Because the impact of exposure may not become obvious for many years after exposure, people have the possibility of being diagnosed with something other than the disease and miss out on sorely needed medical attention. Because the disease manifests itself so late, it can easily go under the radar and get worse before anything can be done to resolve it.

In Louisiana, in the New Orleans Parish Civil District Courthouse, the family members of yet another victim of exposure to asbestos will have their day in court. The deceased, Phillip Graf, was exposed to asbestos for over 30 years and died a long, emotional and painful death. His family members are suing up to 29 different defendants in their lawsuits arising from his untimely and unfortunate death. Among the defendants is Metropolitan Life. In court documents, the claim states that the company is liable because it aided and abetted the negligence and the marketing of unreasonably dangerous asbestos containing products by such manufacturers. The plaintiffs in the case allege that these actions exhibit a specific type of negligence and lack of care that led to Mr. Graf's death. Moreover, Benjamin Moore & Co. is listed as the lead defendant. This is because it was the employer of Mr. Graf. This case helps illustrate that with matters such as this, a variety of companies both directly and indirectly involved in the exposure can be held accountable for the unfortunate circumstances their actions, or lack thereof, caused.

Losing a member of the family due to a disease is a hard process. However, if you or a loved one feel that you are being exposed to dangerous work environments while on the job, do not hesitate to call an attorney.

Continue reading "Thirty Years of Asbestos Exposure Leads to Death" »

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" »

On the evening of October 29, 2004, Jeanine Pryor, then 69, attended a football game between Barbe High School and New Iberia High School at Lloyd G. Porter Stadium in Iberia Parish. Pryor, who was there to see her grandson play, was recovering from hip surgery and required a cane to get around. She sat in the bleachers on the visitors' side of the stadium to be with the other fans of the Barbe High Bucs. The seat boards on the visitors' side bleachers were uniform and approximately eight inches apart in height, except that the space between the first and second seat boards had 18 inches between them. When Pryor first arrived, she realized she could not step up the distance between the first row and the second, so she "grabbed the second board and lay on her side so she could swing one leg up at a time." Then she stood up and was assisted by her daughter the rest of the way up the rows to her seat. At halftime, when Pryor descended the bleachers in order to visit the restroom, she attempted to simply step down the distance between the first and second seats, rather than use the same maneuver she had executed on the way up. In the process, she fell and was severely injured. Pryor filed suit against the New Iberia school board alleging that the bleachers were defective. After a bench trial, the district court entered a judgment for the school board, having determined under a risk/utility analysis that the condition of the bleachers was not unreasonably dangerous. Pryor appealed and the court of appeal reversed. It rejected the district court’s analysis, finding there was “no utility or social value in exposing visiting patrons to an eighteen-inch vertical differential between the seat boards in question.” The court apportioning 70 percent fault to the school board and 30 percent fault to Pryor, awarding her damages of over half a million dollars. The school board appealed.

The Louisiana Supreme Court recited the general rule that "the owner or custodian of property has a duty to keep the property in a reasonably safe condition," though the owner generally has "no duty to protect against an open and obvious hazard." It is the trial court's role to decide which risks are unreasonable based upon the facts and circumstances of each case, and review of its determination on appeal is subject to the manifest error standard. Louisiana courts have adopted a risk-utility balancing test for this analysis, which requires weighing four factors:

(1) the utility of the thing. Here, the court concluded, "it is undisputed that the bleachers serve a social utility purpose by providing seating for patrons of the stadium," and further, that "the eighteen-inch gap between the first and second seat is not a defect in the bleachers per se, but simply part of their design."

(2) the likelihood and magnitude of harm, which includes the obviousness of the dangerous condition. In this case, the court agreed with the district court's finding that Pryor was "aware of the gap."

(3) the cost of preventing or correcting the harm. In this circumstance, the court noted that Pryor "could have avoided the harm at no cost to her by choosing to sit on the [home team's] side of the stadium, where disability access ramps and handicap-accessible seating were provided."

(4) the nature of the plaintiff's activities in terms of its social utility, or whether it is dangerous by nature. "Obviously, the act of attending a high school football game carries a social utility, and is not inherently dangerous," the court concluded. However, it viewed Pryor's decision to site on the side of the stadium where no ramps or handicap-accessible seating were provided "effectively increased the risk to her, given
her physical impairment."

Based on this analysis, the court concluded that "the district court’s factual determination that the bleachers were not unreasonably dangerous is not clearly wrong," and found the court of appeal erred in reversing the district court’s judgment.

The Pryor case is another classic example of the risk-utility analysis applied by the courts when trying to balance the duty that property owners owe to visitors with the visitors' obligation to look out for their own safety. Particularly in the case of municipalities, state agencies, and other public entities, the court must apply a reasonableness standard to ensure that tax revenues are spent responsibly in light of the duty.

Continue reading "Court Rules High School Football Stadium Bleachers Are Not Unreasonably Dangerous" »

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 " »

In a ruling by the Third Circuit Court of Appeal for the State of Louisiana, the Louisiana Department of Wildlife and Fisheries (LDWF) and the Department of Transportation and Development (DOTD) were found jointly liable for $3.9 million to Vanna McManus and her children, the survivors of a man who drowned at Chivery Dam in Natchitoches Parish.

The deceased, Hugh McManus, was fishing with his friend Stanley Neal at the 70-year-old Chivery Dam in Mr. Neal’s boat. They pulled up close to the dam, killed the motor, and began throwing cast nets. The pair believed that the current in the nearby Saline Bayou would cause them to drift back downstream, but because of water coming over the dam and how close they were when they stopped, they were actually pulled toward the dam. The two men did not notice this until the boat bumped against the dam and began filling with water. The pair abandoned the boat without securing their life vests. Mr. Neal was able to make it to shore by walking on top of the dam, but Mr. McManus drowned. There were no warning signs posted anywhere near the dam announcing that approaching within a certain number of feet was dangerous.

A Natchitoches Parish jury found in favor of the plaintiffs and awarded them $3,880,965.95, with 25% of the fault allocated to LDWF (which owned the dam) and 75% to DOTD (which inspected and maintained the dam). The State of Louisiana appealed, claiming that the jury erred in finding that DOTD and LDWF were liable to the plaintiffs and that DOTD had a legal duty to warn of the alleged dangerous condition that caused Mr. McManus’ death. The jury also concluded that DOTD willfully or maliciously failed to warn against a dangerous condition under La. R.S. 9:2795 and that a dangerous condition existed at Chivery Dam at the time of the accident and that DOTD and/of LDWF had constructive notice of it.

In order to prove liability on the part of the state, the plaintiff has to show: 1) that there was a dangerous condition which presented an unreasonable risk of harm; 2) that the State had actual or constructive knowledge of the condition and enough time to take remedial action; 3) that the State had a duty to warn of the dangerous conditions; and 4) that the State was willful in its inaction. This last requirement overcomes the usual qualified immunity defense; La. R.S. 9:2795 states in part that an owner of land who permits someone else to use the land does not extend any assurance that the premises are safe for any purposes except for willful or malicious failure to warn against a dangerous condition. If the condition is obviously dangerous and would be clear to both the owner and a visitor, no duty exists to warn about the danger. If the unreasonably dangerous condition is not “open and obvious,” however, there is a duty to warn the plaintiffs of the danger.

Most of the jury’s findings that the State claimed were error were factual determinations, so the appellate court could not overturn them unless they were clearly wrong. It was clear that there was a reasonable basis for all of the jury’s findings, and the appellate court affirmed all of the trial court’s decisions.

In this case, there was testimony that there were at least two similar occurrences (without injuries) at the dam previous to this tragic incident. One incident involved Mr. McAlpine, a 28-year veteran enforcement agent for LDWF, who would have drowned had he not been able to grab a life preserver. He testified that someone who witnessed the accident had a similar experience and had seen several other accidents in the same area. Because Mr. McAlpine was and is a LDWF agent, LDWF can be said to have constructive knowledge of the unreasonably dangerous condition.

The plaintiffs’ expert witness, an engineer, testified that it was not possible to fix the condition and that the only alternative was to post warnings, buoys, or barricades that would have warned the plaintiffs. He pointed out that even the DOTD website states that the operator is required to correct or post warnings if there is a dangerous condition. He also testified that unless a person had training or experience with dams, there was no way to tell that the condition existed. The State did not refute the expert testimony. The evidence at the trial was enough to show that the State’s failure to post warning signs was willful, since they knew about the problem and had more than enough time to post signs.

Continue reading "Louisiana Department of Wildlife and Fisheries, Department of Transportation and Development Found Liable for Natchitoches Parish Drowning" »

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

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

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

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

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

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

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

Over the course of the last century, products liability law has become more detailed and specific in terms of protecting consumers from injury caused by products. If a product is found to be defective, in most cases any sellers along the chain of sale can be held liable. This means that, from the manufacturers to the retailer, all parties can be held liable if damage is caused by a product. The reason for this trend in the law is to give the benefit of the doubt to the consumer because the consumer needs protection. Further, stricter laws force manufacturers to produce better products. If they know that a defective product could potentially results in a multi-million dollar law suit, they will make sure the products they produce are safe.

This protection is especially true as it pertains to young children. Because children have less experience in life, there is a higher chance that they can make a mistake which would be unreasonable to make if it were an adult. However, even the law does not extend such benefits fully to all actions by children and teenagers. In a recent case, Payne v. Gardner, the Louisiana Supreme Court identified a point at which even a teenager could not be protected.

In 2004, in Rapides Parish, Henry Goudeau was playing around an oil well pump. The oil well pumps on oil wells move back and forth like a pendulum. As Henry was playing around the oil well pump, he noticed the movement of the pump and decided to use the pump as a pendulum type swing for recreational purposes. Afer he jumped on the pump when it reached its highest point, his leg got caught in another part of the pump which unfortunately lead Henry to be seriously injured. Henry's mother decided to sue the manufacturer of the pump, Lufkin Industries. A serious battle arose as to whom the blame should fall upon. Should Lufkin have know that their pumps would be used as a ride? Should Henry have used better care in making a determination of whether it was safe to ride on the pump?

In situations like this there can be no simple answer. However, the determination must be made with insight into the facts that existed at the time, and their relation to the law. At the trial court level, the court agreed with Lufkin. On appeal, the appellate court reversed the trial court's decision. The case ultimately found its way to the Supreme Court. The products liablity act in Louisiana is as follows:

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.

Although Henry was unlucky in his tragic accident and his ultimate case, one can never know who is legally to blame for an injury caused by a product or a machine.

Continue reading "Oil Pump Injury Demonstrates Limits of Liability for Child's Injury" »

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 doctrine of res ipsa loquitur can be employed by a plaintiff to establish the defendant’s breach of duty in the absence of direct evidence of the defendant's negligent conduct. However, use of the doctrine "does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery." To prevail in a negligence claim based on the "ruin, vice, or defect in things," the plaintiff must show that the defendant knew or should have known of the defect and that the harm to the plaintiff could have been prevented by the defendant's reasonable care. See Cangelosi v. Our Lady of the Lake Medical Center.
As the plaintiff in Shuff v. Brookshire Grocery Co. learned, the doctrine cannot be invoked to circumvent this fundamental burden.

On October 15, 2006, Ashley Shuff entered the Super One Foods grocery store in Bastrop with her two children. Upon arrival, Shuff placed her 20-month-old daughter, Cloe, into the child seat that was built into one of the store’s shopping carts and fastened the seat belt. Shuff admitted that the belt mechanism appeared to be working properly when she buckled Cloe in. A short while later, Cloe fell from the seat to the store's concrete floor and broke her arm. A store patron who observed the incident later inspected the seat and discovered that a prong on the belt's snap was broken. Shuff sued the grocery store on behalf of her daughter on a negligence theory for damages caused by "ruin, vice, or defect in things." In the trial court, the parties filed cross-motions for summary judgment. Shuff argued that the store's liability for the incident was governed by the doctrine of res ipsa loquitur becuase it had responsibilty to maintain the seat and its safety belt. The court denied Shuff's motion and dismissed her claims.

On appeal, the Second Circuit explained that res ipsa loquitur was inapplicable to Shuff's claim because ample direct evidence on the elements existed. In fact, on the element of whether the store knew or should have known of the problem with the belt snap, the direct evidence worked against Shuff's negligence argument. The store's assistant manager testified that no store employees had any knowledge of the problem with the snap prior to Cloe's fall. Further, Shuff's own testimony that the snap was functioning properly at the time she buckled Cloe into the seat "demonstrate[d] a lack of constructive knowledge of the defect" by the store employees. Essentially, the court determined that if Shuff did not obtain actual knowledge of a problem with the snap at the time she placed her daughter in the seat, it could reasonably not impute constructive knowledge of the problem to the store. Thus, the court concluded that "[s]ince actual or constructive knowledge is an essential element of the plaintiff’s cause of action," Shuff failed to prove her claim. The court affirmed the trial court's dismissal of the action.

The Shuff case demonstrates that basic negligence principles govern the outcome of most disputes. Although certain doctrines like res ipsa loquitur exist to address unusual situations (such as when direct evidence is truly unavailable), courts prefer to rely on traditional burdens of proof and to avoid presumptions of fault whenever possible.

Continue reading "Court Weighs Applicability of Res Ipsa Loquitur in Morehouse Parish Grocery Store Mishap" »

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

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

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

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

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

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

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

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

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

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

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

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

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

To win a case, a plaintiff must prove the elements of his or her legal claim, or cause of action. Each cause of action is comprised of certain required elements. For example, in a breach of contract claim, a plaintiff must prove the following elements: duty, breach, causation, and damages. In Louisiana, a resident can sue a municipality for failing to repair a defect in a public street or walkway. In a recent case, the Third Judicial District Court for the Parish of Union (“Court”) discussed the elements required to prevail in such a claim.

At issue in Carol Smithwick and Glenn Smithwick, Individually and as the Administrators of the Estate of the Minor Child, Carsen Smithwick v. City of Farmerville, Community Trust Bank, CTB Financial Corp. and First United Bank, was whether the plaintiffs proved that the City of Farmerville (“City”) had actual or constructive notice of a public way defect - an essential element of the cause of action. Plaintiff Carol Smithwick waited one afternoon for her son at a school bus stop, which encompassed an intersection between two city streets. Ms. Smithwick sustained injuries when she stepped onto the shoulder of one of the streets and tripped on a shallow depression. Seeking $6.2 million in damages, Ms. Smithwick claimed the injury to her right ankle from the fall caused a medical complication in her right knee.

In dismissing the suit, the trial court concluded that the plaintiffs could not prove that the City had constructive or actual notice of a defective condition even though the hole, which caused Ms. Smithwick's injuries, presented an unreasonable risk of harm. On appeal, the Court affirmed the trial court's judgment. According to the Court, a municipality will be held liable for injuries from a defect in the condition of a public way if it had actual or constructive notice of the defect. A municipality has actual notice of a defect or condition if one of its agents or employees had a duty to keep the area in good repair or to report defective or dangerous conditions. Constructive notice is proven if a plaintiff can show a defective condition existed for a considerable amount of time and reasonable diligence by the municipality would have resulted in its discovery.

The plaintiffs argued that the City had actual notice of the depression because one of its maintenance personnel, who trimmed the area at issue, stated at a deposition that he knew of the shallow depression. However, the hole described by the employee was in an area different from the location of the depression in question. The plaintiffs also argued that the City had constructive notice of the defect because the City's personnel trimmed and/or mowed the area during the growing season twice a month. However, the Court disagreed and found the argument speculative since the area had not been trimmed since 2004 and there was no evidence establishing that the hole existed since that time.

Accordingly, the Court concluded that the plaintiffs failed to show the City had actual or constructive notice of the defective condition. Moreover, the Court reasoned that throughout the school year, the area was used as a school bus stop and no other parent or child noticed or was injured by the depression.

Smithwick v. City of Farmerville illustrates how important it is to seek competent legal counsel to discuss whether you have a viable claim, which includes whether there is evidence proving each element of a cause of action. Our lawyers can help save you time and money.

Continue reading "Municipality Must Have Notice of a Defect in a Public Walkway to be Liable for Injuries " »

In 1996, a group of plaintiffs filed a petition for damages against the city of Baton Rouge/Parish of East Baton Rouge alleging that the operation and maintenance of the North Wastewater Treatment Facility caused personal inconvenience, mental suffering, embarrassment, and personal injuries, threatening their health and safety, as well as damaged their land and property. The trial court awarded monetary damages to nineteen plaintiffs for stigma damages and added plaintiffs back who had been dismissed for no property interested, awarding damages for discomfort and inconvenience. However, in a 2009 decision (that can be found here: 2009CA1076), the Louisiana Court of Appeals reversed many of the damage awards based on errors of law.

On appeal, the Louisiana Court of Appeals considered whether the trial court erred because the prescriptive period had expired, erred in awarding damages out of the 1997 expansion of the plant, or erred calculating damage amounts. Under La.R.S.9:5624, the prescriptive period for public property damage claims like this one is two years. The court agreed with plaintiffs that the period did not lapse because the latest expansion of the sewage plant can be viewed as a new public work event - thus plaintiffs were only responsible to file suit within two years of the 1998 expansion, not within two years of the plant's original opening in 1960.

The trial court awarded damages under Article I Section 4 of the Louisiana Constitution, which provides that "property shall not be taken or damages by the state or its political subdivisions except for public purposes and with just compensation paid to the owner." The Louisiana Supreme Court has addressed inverse condemnations like this one in the past (where the state is not taking other's property, but rather damaging it through their own property) and noted that "Despite the legislative failure to provide a procedure to seek redress when property is damaged or taken without the proper exercise of eminent domain this Court has held that a cause of action must arise out of the self-executing nature of the constitutional command to pay just compensation." As such, individuals whose land is damaged by the government have constitutional redress.

The Supreme Court has also provided five elements that must be proven in such a case: (1) that the property rights are at issue; (2) that the act alleged to have caused damages was undertaken for public purposes; (3) that the acts of the government violate Civil Code articles 667 through 669; (4) that the government has engaged in excessive or abusive conduct and (5) that their property has either been physically damaged or has suffered "special damage peculiar to their particular property." The Supreme Court has also found that as long as the activities on State land do not exceed the level of causing claimant some inconvenience there can be no taking or damaging of the property right.
Basically, in a case like this one, proof of personal injury, physical damage to property, or the presence of excessive or abusive conduct must be made. Here, the Court of Appeals found that it was unclear whether the trial court applied the correct legal criteria. Plaintiffs suffered inconvenience, but inconvenience alone is not compensable. The Court found that several errors were made at the trial court level:

First, plaintiffs can only be compensated for damages sustained by expansion of the treatment plant that occurred in 1997 and 1998 because earlier claims had prescribed, and as such, damage for odors existent in 1995 were awarded in error. Additionally, the court can only award stigma damages if they resulted from the expansion of the sewage treatment plant. However, plaintiff's real estate expert concluded that the proximity of the treatment plant generally resulted in property damage ranging from 13,000 to 30,000 per home. The expert did not consider the effect of the expansion in particular. The expert testified that only one home was actually damaged by the expansion itself due to the fact that post-expansion his home was no longer directly across the street from a BREC park. Other damages were awarded in error.

Finally, damages were also awarded to a number of plaintiffs for discomfort and inconvenience during the 17 months of expansion itself. However, the evidence did not establish absusive or excessive conduct or any physical damage or personal injury. Ill effects of construction are unavoidable and generally not compensable.
As this case demonstrates, sometimes litigation can be a rollercoaster with claimant's fighting for a favorable ruling only to have it reversed and damages rescinded. Competent representation is crucial to fight all of the battles in the court case, through trial, appeal, and beyond.

Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

The State of Louisiana Division of Administration, headquartered in Baton Rouge, requires that that medical malpractice claims against public sector health care providers must be processed through its administrative procedure, starting with the claim's submission to the Commissioner of Administration.

A request for a medical review panel must be in writing and contain:
- A request for the formation of a medical review panel.
- The name of the patient.
- The names of the claimants.
- The names of defendant state health care providers.
- The dates of the alleged malpractice.
- A brief description of the alleged malpractice as to each named defendant state health care provider.
- A brief description of alleged injuries

Once the claim has been filed, several time-sensitive procedures are triggered. First, the Commissioner of Administration to whom the claim is submitted has 30 days to complete the following:

- Confirm to the claimant that the claimant's complaint has been received.
- Determine whether the defendant is or is not a qualified public health care provider with State of Louisiana.
- Determine amount of filing fee owed or paid.

a. If filing fee not paid, acknowledge claimant, advise of qualifications, request payment of filing fees and diary for forty-five (45) days for money to be collected from claimant or affidavit or forma pauperis ruling.
b. If filing fee paid, acknowledge claimant and advise the Office of Risk Management in order for an attorney to be assigned to represent the defendant(s) and notify defendant(s).

- Notify all named defendants that a complaint has been filed as well as a request for the formation of a Medical Review Panel.

Then, before the claim can move forward, it must be presented to the medical review panel who generally has twelve (12) months after its chairman is selected to render an opinion on the claim. The parties determine the chairman from a list of five local attorneys submitted to the Commissioner of Administration by the Clerk of the Supreme Court. The Medical Review Panel also contains 3 physicians; each party selects one each and then those selected physicians select the third physician.

Once the Panel is formed, the parties may submit evidence and testimony for its consideration and can convene the panel at a mutually convenient time and place. Within 30 days, but in all events with 180 days after the last panel member is selected, it shall issue its expert opinion.

Costs

If the panel finds in favor of the Defendant(s) the Division of Administration shall pay the costs of the Medical Review Panel. If It holds in favor of the Claimant, he shall pay the costs. If, however, the panel finds that there is a material factual issue that needs resolution in court, the costs shall be split between the claimant and the Division of Administration.

The Claimant must pay a filing fee within forty-five days of the acknowledgment letter from the Commissioner - it is $100 per named defendant. But, this fee may be waived by either the submission of an affidavit by a physician certifying that the claim constitutes a breach or an in forma paureris ruling issued by a district court holding that the malpractice claim could properly be brought.

Submitting a claim for medical malpractice pursuant to this requirement and its procedures can be an intimidating prospect. In order to bring a successful claim, one really should seek expert advice from an attorney to navigate the often confusing and technical waters of this administrative process.

Continue reading "Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel" »

The U.S. Environmental Protection Agency (EPA) recently gave the state of Louisiana a grant of $150,000 to help reduce the public's exposure to asbestos in schools and other state buildings. The money will help building owners comply with statutory requirements, monitor their compliance, and be spent on public outreach efforts.

Under the Asbestos Hazard Emergency Response Act, or AHERA, grants like this one are authorized to protect people who enter public buildings where asbestos may be found. The law requires local education agencies to inspect schools for asbestos and make plans to reduce it where found. The AHERA also created a program to train and accredit individuals who perform asbestos related work. Projects like those authorized and funded through AHERA are so important due to the human risk of asbestos depends on exposure. Contrary to popular belief, removal is not always the best way to reduce exposure. That is where education comes in. Improper removal of asbestos may create danger where none existed before. The EPA only requires removal when it is needed to prevent significant public exposure to asbestos material (example: during building renovation or demolition). If asbestos is discovered, the EPA actually often recommends in-place management, not removal. Management plans can be used to control the release of asbestos fibers when materials are not significantly damaged and not likely to be disturbed.

Beyond providing grants like this one to states to combat asbestos, the EPA plays a broad role in protecting the public from exposure to the toxic fibers. Several EPA Offices deal with asbestos. For example, the Office of Air and Radiation/Office of Air Quality Planning Standards, which has the mission of preserving and improving air quality in the U.S., is responsible for implementing another asbestos law, the Asbestos National Emission Standards for Hazardous Air Pollutants, which sets guidelines for demolition practices and reporting and record keeping requirements for waste disposal. In addition, the Office of Prevention, Pesticides, and Toxic Substances regulates asbestos in school buildings and certain asbestos products and maintains the Asbestos Model Accreditation Plan which is used by states to train and accredit asbestos professionals. This Office also protects workers in states without Occupational Safety and Health Administration (OSHA) Safety and Health Plans.

In 2005, the EPA released an "Asbestos Project Plan" to bring together their actions related to asbestos and provide a framework to coordinate their approach to identify, evaluate, and reduce risk to human health from asbestos exposure. The plan set forth three key areas of focus:

1. Improving asbestos science and advancing EPA understanding of asbestos toxicology, asbestos-related exposures, sample collection, and analysis. 2. Identifying and addressing ways people are exposed to asbestos and how to reduce exposure 3. Assessing and reducing risks associated with asbestos cleanup.

For more information about what the EPA is doing in our Region (6-which encompasses Louisiana, Texas, Arkansas, New Mexico, Oklahoma, and 66 Tribal areas) you can visit the EPA's website by clicking here. If you feel your health has been compromised from being exposed to asbestos, contact an attorney immediately to discuss your legal rights. Timing can be of the utmost importance in cases relating to asbestos and taking action quickly is essential.

A gangway is a pathway that connects the ship to the dock at which it has stopped. It is the means by which the crew and cargo of a ship are moved onto and off of the ship. Usually ships have detachable gangways that the ship crew put on the side of the ship when the ship is docked. Other times, docks have policies that require the ships to use gangways that are provided by the dock owner. As in any other legal field, the use of gangways are subject to rules of negligence and duties of care. The question in a recent case, Landers v. Bollinger Amelia Repair, was whether a dock owner was liable for a gangway provided to a ship under the stated policy of the dock owner that all ships must use gangways provided by the dock.

On June 12, 2006, the M/V Roseanna docked on the Bollinger Amelia Repair (BAR) dock. The reason for docking there was that the Roseanna's hull had been breached, and it needed repair. The Roseanna had a gangway on its ship, but it was full of cargo and could not be used to access the dock. In any case, BAR had a policy of requiring all docked ships to use a BAR provided gangway. Thus, Landers, an employee of the Roseanna, and another Roseanna employee got a gangway from BAR and installed it.

The gangway was inspected by a Roseanna employee and was found to be in good condition. The gangway was used many times that day. The crew of the Roseanna discovered that the hull of the ship could be fixed without the aid of BAR and proceeded to do so. At the end of its use, the gangway was removed by Landers and another member of the Roseanna crew. Upon removal, the gangway sprung up hitting Landers in the back and causing injury. Subsequently, Landers brought suit against BAR arguing that due to BAR's stated policy of requiring the use of BAR gangways, BAR was liable for the injury caused to him under general Maritime negligence law.

Landers' argument was essentially that due to BAR's policy, BAR stepped into the vessel owner's shoes and thus assumed a maritime duty to provide a gangway free from hidden defects. The issue with Lander's case was that there was no case law that backed his claim. There were two ways in which Landers could have brought his claim. The first way was under general state negligence law. The problem with this approach was that the statute of limitations to bring this suit had already run. The other means was under general maritime negligence law. As stated above, there was no precedent upon which Landers rested his case. He essentially was asking the Court to expand the law with his claim. Although there was no case exactly on point, it is a well established that the gangway of a ship comes under general maritime law. Further, it is well established that the vessel owner has a fundamental duty to provide its crew members with a reasonably safe means of boarding and departing from a vessel. Furthermore, this duty of the vessel owner, that the vessel owner provide a seaworthy ship, is absolute and nondelegable. Thus, under general maritime law, if the dock owner is held liable for the gangway, the dock owner would also have to be the ship's owner. General maritime law is a law which relates to the vessel. Thus, it would be illogical to extend the protection of the crew members, which belongs to the vessel owner, to a dock owner unaffiliated with the ship or its crew. Thus, the Court held that there was no relationship between Landers and BAR to create liability under maritime law. Landers could bring suit under a state law theory, but Landers was out of luck on that claim because the statute of limitations had already run.

There may be many theories under which a case can be brought. Further, there may be different areas under which cases may fall. In Landers' case, he could have brought a state law and maritime law claim. However, because he waited too long to seek legal counsel, his state law claim expired and he was left with only a maritime law claim, which ultimately failed. Filing under both areas of law would have increased his chances of success. If you have been injured on the job, it is important that you seek legal counsel.

Continue reading "Court Outlines Responsibilities of Dockowner in Employee Injury" »

Asbestos-related illnesses have impacted many families throughout the nation. The impact of asbestos exposure can lead to serious terminal illnesses. Partly as a response to such illnesses, the federal government created the Longshore and Harbor Worker's Compensation Act (LHWCA). The act provides injury and occupational-disease protection for those who work on the navigable waters of the United States.

In the past, the Louisana shoreline was home to many companies that were involved with the direct use of asbestos. Those individuals who were impacted by the use of asbestos in such areas are potentially protected by the LHWCA. The act provides for a set of procedures that must be fulfilled prior to any case reaching a court of law. At first, an Administrative Law Judge (ALJ) reviews the facts of the case and decides whether the LHWCA provides relief for any party. If this decision is appealed, it will go to the Benefits Review Board (BRB), which will have to conclude whether the ALJ's order was supported by substantial evidence on the record as a whole and is in accordance with the law. After this stage, if the decision of the BRB is challenged, the case will find its way into court.

In a recent decision by the United States Court of Appeals, Fifth Circuit, in Louisana Insurance Guaranty Association Baton Rouge Marine Contractors Inc. vs. Director Office of Worker Compensation, the process through which claims under the LHWCA proceed is clearly outlined. Plaintiff in the case worked on the Lousiana shoreline from 1965 to 1977. During the 60's he worked directly with asbestos by unloading bags of asbestos. From 1970 to 1977 plaintiff worked on cranes for the same company. This position did not require direct contact with asbestos. However, he worked in and had to continuously walk through warehouses where asbestos was dealt with and stored. During the plaintiff's employment, the company that he worked for was insured by Employers' National. It provided insurance coverage from 1972 until 1982. However, it was declared insolvent and placed in receivership in 1994. Louisiana Insurance Guarantee Association (LIGA) appeared in its place as a substitute party in this proceeding.

Based on the facts provided, the ALJ granted relief under LHWCA. The BRB, then found the ALJ's decision to be supported by substantial evidence. The insurance company appealed the decision to the fifth circuit. The case is broken down into factual questions and legal questions. The fifth circuits only job was to correct errors of law and make sure that the BRB did not substitute its interpretation of the factual issues for those of the ALJ. The first factual issue in the case was whether LIGA was subject to the LHWCA's last employer rule. LIGA argued that plaintiff could not have been injured by asbestos exposure after 1970 when he moved from working directly with asbestos, to working on the cranes. The Court held that the ALJ had sufficient evidence to determine that plaintiff was indeed exposed to asbestos due to the storage of asbestos in warehouses in which he worked in and walked through. Second, defendants argued that plaintiff was not forced to retire because of any asbestos related injury. Plaintiff testified that he had trouble walking up and down stairs and that the asbestos injuries and sickness are at least in part the cause of his retirement. The Court stated,"the ALJ as sole factfinder is entitled to consider all credibility inferences and [his selection] among inferences is conclusive if supported by evidence and the law." The BRB explained in its review that,"if the claimant's work related injury played a role in causing his retirement, the retirement is involuntary." The Court decided that since both determinations were made within the bounds of law and the evidence provided, the decision made by the ALJ, that plaintiff was involuntarily forced to retire due to asbestos exposure, should stand. Third, plaintiff was granted the status of total disability. Under the LHWCA, to establish a prima facie case claimant must show that he is unable to return to his regular or usual employment. Thus, the question posed is not whether any claimant can work anywhere else or do anything else, the question is whether the claimant can continue to do the same or similar things as he or she did prior to the disease or injury. Since the plaintiff testified that he had a hard time walking up and down stairs, there was sufficient evidence that plaintiff had total disability as defined under the act.

The legal issue in the case was whether LIGA should be held liable for the insurance that was provided by Employers' National, which was declared insolvent. The "last responsible employer" rule was a policy decision on the part of the acts administrators. Eventually, it was judicially adopted by courts. Under the act, insurance liability would fall onto the shoulders of Employers' National. Employers' National insured plaintiff's employer during the last years of his employment. Under Louisiana law, the law responsible employer rule would also subject the last insurer. The rule applies to Employers' National, and in turn to LIGA, as a substitute party in this case. Thus, under the law, and Federal law as applied in Louisiana, LIGA is liable to plaintiff for his injuries and medical expenses.

Although, nothing can take away the pain and anguish associated with a debilitating disease or the loss of a loved one, there are law that were created to protect those who have been impacted by disease associated with asbestos. It is essential that if you or a loved one have been injured due to asbestos exposure, you should contact an attorney who may be able to help. Laws like the LHWCA have been enacted to help people in such difficult and trying time.

Continue reading "Legal Remedy for People With Mesothelioma Due to Asbestos Exposure " »

In late 2010, the Court of Appeal of Louisiana, Fourth Circuit, shed some light on how the sale of a company may impact claims made by employees against the successor company in Pichon v. Asbestos Defendants AG. The plaintiffs in the case were the wife and children of the deceased Mr. Pichon. The plaintiffs alleged that Mr. Pichon was exposed to asbestos between 1955 and 2004. Mr. Pichon died in 2006 from Mesothelioma and Lung Cancer, which the plaintiffs argue was as a result of his exposure to asbestos. One of the defendants in the case was Detroit Diesel Corporation (DDC). DDC filed for summary judgment stating that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. The Court broke its discussion down into two time periods: (1) Pre-1988 exposure by Mr. Pichon, before the creation of DDC, under which plaintiffs argued that DDC is liable under the theory of successor liability and (2) Post-1988, after the creation of DDC, under which plaintiffs argued that Mr. Pichon was exposed to asbestos as a result of DDC manufacturing.

In 1970, GM merged its Diesel Division with its Allision Division to create the Detroit Diesel-Allision Division. This division manufactured marine engines at Halter Marine. In 1988 GM and Penske formed DDC as a joint venture. Subsequently, DDC purchased the assets of most of the division that produced the marine engines. The sales agreement between DDC and GM stated that DDC would not be liable for GM's conduct or for claims relating to products manufactured, distributed, or sold by GM prior to closing. The Court stated that there were three ways in which a successor company could be held liable for the actions of the selling company: (1) When the successor company clearly assumed the liability or obligations (2) When the buying company was merely a continuation of the selling company or (3) Where is it found that the transaction occurred only to avoid liability. The Court stated that it was clear that DDC expressly denied any pre-sale liability for the actions of GM. However, the plaintiffs argued that DDC's liability was as a result of test number two, namely that DDC was a continuation of GM's Diesel-Allision Division.

In response to plaintiffs argument concerning the second test for successor liability, the Court cited to a U.S. Supreme Court case that held that successor liability could be found on the basis of the buying company being a mere continuation of the selling corporation where the sale was for all of the company's assets. The issue for the plaintiffs in this case was that DDC clearly did not purchase all of GM's assets. Further, DDC did not even purchase all of GM's assets concerning manufacturing of marine engines. DDC only purchase those assets relating to the Redford Operations. Because the plaintiffs were unable to provide evidence that DDC purchased all of GM's assets, the Court granted DDC's summary judgment on this claim and plaintiffs thus lost on this point.

The Court next turned to the claim that Mr. Pichon was exposed to asbestos after the creation of DDC. DDC provided the Court with evidence that GM had put in place a policy in 1980 that called for the eventual elimination of the use of asbestos. Further, DDC provided the Court with evidence that the use of asbestos by GM was completely eliminated by 1987, prior to the creation of DDC. DDC argued that there was no evidence that there was a continuation of the use of asbestos after the creation of DDC. The plaintiffs put forth evidence showing that there was a gasket specification sheet from 1986 that called for the use of asbestos. The plaintiffs argued that since there was no evidence of a gasket specification sheet subsequent to 1986 that showed that asbestos was not used, that it should be assumed that the use of asbestos continued post-1986 and into the period after DDC was created. The Court held that the indirect evidence provided by the plaintiffs did not negate the direct evidence provided by DDC that showed that there was a policy implementation and eventual phase out of the use of asbestos prior to the creation of DDC. The Court granted DDC's motion for summary judgment and the plaintiffs lost on this point as well.

The Pichon case is a good example of the precautions that workers should take in the workplace. If you have worked in an environment where asbestos was used, it is imperative that you seek medical and legal advice. If you work in any environment in which you deal with hazardous chemicals or materials you should frequently visit your doctor to make sure that you remain healthy. If the company for which you work is being bought, or is purchasing another company, or its division, you should seek legal advice as to how your rights will be impacted by the sale. Further, if you or a loved one suspects they have been exposed to asbestos, consulting with an attorney about their legal rights is a must.

Mesothelioma, also known as asbestos cancer, is cancer of the mesothelium, and is usually found on or around the lungs an individual has had prolonged exposure to asbestos in their homes or at work. Although the disease has become easier to detect in recent years, asbestos manufacturers have actually been sued by victims who have contracted the disease since as early as the 1920s and there is evidence that people were getting sick as early as the end of the 19th century.

Despite this long history, and high profile cases that have gone as far as the Supreme Court with nearly a billion dollars in compensation paid out, no Federal laws have been passed to delineate the compensation available to victims. The sad reality is that many suffering patients end up not getting the compensation they truly deserve due to the lack of regulation and confusion over what victims are entitled. This would seem to be an obvious case of injustice and is an unfortunate reality as working men and women simply cannot afford to aggressively pursue legal action against corporations, especially those that may have closed decades before.

The link between meso and asbestos was officially proven in the 1960s when scientists confirmed the presence of the disease in over 30 people who had been exposed to asbestos in South Africa. In 1962 mine workers were discovered who had mesothelioma and the condition was proven to cause cancer. Once workers are diagnosed with mesothelioma they can no longer work. This is just one reason why they must be properly compensated by their employers for their lost wages. Employers my be hesitant to pay damages; the reality is they could have provided the proper protective equipment to their workers that would have allowed them to work safely with asbestos and remain disease free. The question then significant to many is how you can tell if a person has contracted mesothelioma?

There are several symptoms that should be seen as a red flag (these symptoms are very similar to those for other conditions, including lung cancer). Keep in mind that these symptoms may not surface for years after asbestos exposure:

1. Shortness of breath - from fluid caught between the lungs and chest wall.
2. Chest pains - also caused by fluid. The pain will be felt under the rib cage and may be accompanied by coughing.
3. Weight loss.
4. Abdominal pain or swelling resulted from fluid building up in the abdomen.
5. Bowel obstruction caused by either fluid or tumors that have formed in the abdominal region.
6. Anemia - due to mesotheliomas affect on the tissue lining the lungs and chest cavity (the pleura).
7. Blood clotting - although this is only seen in severe cases.
8. Trouble swallowing - that occurs if the cancer has metastasized from the mesothelioma to other parts of the body.
9. Swelling in the neck or face - this also occurs if the cancer has spread.

If you are at risk for mesothelioma because you have worked with asbestos in the recent or distant past, and you experience any of these symptoms, it is vital that you contact your doctor right away for treatment. With good legal assistance, those struck with mesothelioma can get the compensation they need and deserve. After all, people who have been injured because of the negligence of their employers deserve some sort of financial support from the legal system. If you are diagnosed you may also benefit from legal assistance. Please feel free to contact us and an attorney experienced in mesothelioma litigation will be happy to talk to you about your case.

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

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

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

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

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

Many of Louisiana's woes are from recent disasters such as Hurricane Katrina and the Gulf oil spill. However, for Plaintiffs in David v. Velsicol Chemical Corporation, their woes began long before then. Plaintiffs were residents and property owners in the Cow Island area of Vermilion Parish when they discovered that their lands had high levels of arsenic in the ground water, in some instances eighty times the Environmental Protection Agency's acceptable levels. Plaintiffs claim that Defendants' product, Cooper's Cattle Dip, contaminated their land and drinking water with arsenic and other hazardous chemicals causing the high rate of cancer in the area.

Plaintiffs' story begins before 1970 when Cooper's Cattle Dip was used in dripping vats located on, or adjacent to, all of the Plaintiffs' properties. The dip solution contained high concentrations of arsenic and other poisonous chemicals. After being dipped in the solution, the cattle would stand as the dip slowly dripped its poison into the Plaintiffs' lands. Although this dip eradicated the ticks that were killing cattle across the United States, it was deadly to humans and animals. This poisonous dip was simply allowed to run off into the ground and, as Plaintiffs alleged, contaminate the ground and eventually the water.

Despite this, the trial court ruled that twenty-one of these Plaintiffs had no cause of action and no standing to proceed in the case. Just recently, the Third Circuit Louisiana Court of Appeals reversed the trial court's ruling allowing the twenty-one Plaintiffs a chance to prove their case under pre-Louisiana Product Liability Act (LPLA) strict liability law. As a side note, this case is governed by pre-LPLA strict liability law because the contamination occurred before enactment of the LPLA. For further discussion on the LPLA, please see an earlier entry on the blog.

In its ruling, the Third Circuit Court of Appeals discussed the fundamentals of Lousiana product liability law and strict liability law. Essentially Louisiana product liability law provides that:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated.

Under this rule, the plaintiff must prove

(1) harm resulted from the condition of the product;
(2) the condition of the product made the product unreasonably dangerous for normal use; and
(3) that the condition existed at the time that the product left the manufacturer's control.

However, strict product liability is different. As the Third Circuit explains, under the strict product liability:

Strict liability results form the conduct or defect of a person or thing which creates and 'unreasonable risk' of harm to others. Strict liability for injury suffered as the result of an unreasonably dangerous product attaches to a claim by any person injured by such product... Any person injured by the contaminated water or soil has a right of recovery and has standing to enforce that right.

In matters like this, the product itself is on trial and the plaintiff must provide proof that the product was unreasonably dangerous for normal use. The Court explains that the test to determine whether a product is dangerous per se is to weigh the danger-in-fact of the product versus the utility of the product. In addition, as part of this test, failure to warn or include warnings about the danger weighs heavily.

To show danger-in-fact, Plaintiffs in this case presented evidence demonstrating that there were no instructions from the manufacturer as to how to clean up the areas where the dip was allowed to runoff into the ground. Further, whatever warnings and instructions were provided would actually further contaminate the land. Defendant did not dispute any of this nor that the product was a toxic, hazardous substance designed to kill.

The Third Circuit ultimately decided that the Plaintiffs presented sufficient evidence at the hearings to state a right of action for damages based on the product being unreasonably dangerous and manufacturer's failure to warn. The Court ruled to reinstate all Plaintiffs dismissed and to allow them to proceed with their case against Defendants.

In cases like this where the origin of the harm was a long time ago and the effect of the harm is happening now, proof is hard to get. If the Third Circuit did not reverse the ruling, those twenty-one. Plaintiffs would be out of luck. This kind of story can happen to anyone and if it has happened to you, it is essential that you get legal help.

Continue reading "Court of Appeals allows Plaintiffs to Continue Suit in Product Defect Matter" »

This post constitutes part two of an introduction to mesothelioma:

Tissue changes resulting from asbestos exposure cause fluid to become trapped between the lung and the chest wall. This trapped fluid induces three symptoms which are often the initial symptoms a patient notices comprising coughing, chest pain, and shortness of breath. The trapped fluid creates uncomfortable pressure between the chest wall and lungs which the patient describes as chest pain under the rib cage. Coughing may accompany these symptoms which are typically the initial symptoms a patient experiences.

Additional symptoms may begin developing over several decades. For instance, weight loss may occur which is a symptom often seen in conjunction with cancerous tumors. Also, anemia may result when mesothelial cells comprising the pleura (lungs) and pericardium (heart) are involved. Blood clotting abnormalities typically present only in severe mesothelioma cases.

Fluid buildup in the abdominal cavity is also problematic for several reasons. First of all, the mere fact that the fluid buildup occupies space causes the patient to experience pain and swelling. Both this fluid buildup as well as tumor formation interfere with the functioning of the digestive tract and nearby organs. Another unpleasant negative consequence is bowel obstruction and the associated difficulties.

Metastasis occurs when cancer moves from the original body part initially afflicted to another body part and thus creates even more problems. If the mesothelioma metastasizes, it may move to the head and neck area causing swelling in the area and possibly difficulty swallowing.

In addition to mesothelioma (cancer of the mesothelium surrounding an organ), asbestos exposure may cause lung cancer wherein the tissue inside the lung itself is involved. Another distinguishing factor between the two asbestos cancers is the prevalence of lung cancer from other causes. In contrast, the only known cause of mesothelioma in the United States is exposure to asbestos.

While any physician can assist you with questions or diagnoses, it may be helpful to interact with a physician specialist. Pulmonologists specialize in lung diseases and oncologists specialize in cancers with some oncologists even focusing particularly on asbestos cancer.

Continue reading "Mesothelioma and Asbestos: Part II" »

Asbestos was recognized to be a toxic substance as long ago as the 1890's although it was not linked with specific diseases until recently. A multitude of lawsuits have been filed against asbestos manufacturers since 1929 with cases even traveling up to the United States Supreme Court. Nonetheless, no Federal Laws were ever created to address compensation for those suffering as a consequence of asbestos exposure leaving many sufferers without any assistance at all. Compensation is meant to address not only medical costs but also the pain and suffering resulting from the asbestos exposure as well as loss of income.

Although asbestos exposure is often 'on the job' exposure, a spouse simply washing the clothes of a family member subjected to 'on the job' asbestos exposure is likewise subjected to inhalation of asbestos dust and fiber. Even such seemingly minimal asbestos exposure places the spouse at risk for also succumbing to asbestos induced health problems. Residents living near factories or mines utilizing asbestos are also at risk for developing asbestos inhalation health disorders.

Unfortunately, asbestos inhalation may trigger a multitude of health problems. For example, a condition termed asbestosis refers to an inflammatory, chronic and prolonged lung disease that may inflict permanent lung damage. Moreover, asbestos exposure places an individual at risk for developing cancer. Due to the ubiquitous nature of asbestos and the magnitude of the damage it inflicts, compensation for asbestos related injuries lies in the billion dollar range. In general, the symptoms of asbestos related diseases include, but are not limited to, shortness of breath, wheezing, hoarseness, a persistent cough and/or coughing up blood, difficulty swallowing, chest pain, loss of appetite, weight loss, fatigue, or anemia.

One form of asbestos cancer affects mesothelial cells. The associated cancer is termed mesothelioma, or more specifically, malignant mesothelioma. Asbestos was definitively linked as the causal agent of mesothelioma by observing that a group of mine workers were succumbing to mesothelioma after working in an asbestos mine during a specific time period which was the only activity all of them had in common.

Mesothelial cells form a tissue termed the mesothelium which protects organs by producing a lubricating fluid. Location within the body sometimes dictates the name given to the mesothelium. For example, the pleura lines the lungs and internal chest walls, the peritoneum lines the abdominal cavity, and the pericardium surrounds the heart. While the pleura (mesothelium lining lungs and internal chest walls) is the mesothelium most commonly affected by asbestos exposure, the other mesothelial tissues may also succumb to asbestos cancer.

Mesothelioma may have a latency period which is a period of time after the patient is exposed to asbestos but before the cancer is detected and the patient is primarily asymptomatic (without symptoms). In fact, mesothelioma may have an unusually long latency period even ranging from ten to sixty years. Over time, the patient begins developing symptoms with some symptoms taking decades to present.

In 1988, Louisiana enacted the Louisiana Products Liability Act (LPLA) which provides for strict liability causes of actions against manufacturers of alledgedly defective products. This case is important because the ruling provides a guideline in which lawyers can litigate their client's cases and attempt to provide them the financial recovery they deserve.

Under the LPLA, set forth in La.R.S. 9:2800:53(A):

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristict of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticapated use of the product by the claimant or another person or entity.

The cause of action against a manufacturer must identify whether the manufacturer fits into the LPLA's definition of manufacturer. Louisiana Revised Statutes 9:2800:1(a)-(c) provides that a manufacturer is:

a person or entity who is in the business of manufacturing a product for placement into trade or commerce ... producing, making, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product ... labels a product as his own or who otherwise holds himself out to be the manufacturer of the product... incorporates into the product a component or part manufactured by another manufacturer.

A manufacturer can also include

A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage [or a] seller of a product of an alien manufacturer if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer.

The second part of the cause of action against a manufacturer is whether or not the product was unreasonably dangerous. The Louisiana Revised Statutes 9:2800:53(B)(1)-(4) further provides that a product is "unreasonably dangerous" when the product is unreasonably dangerous in construction or composition, in design, when not provided with adequate warnings, or when the product does not conform to an express warranty.

The third part of the cause of action against a manufacturer must determine whether the damage is arises from a reasonably anticipated use of the product. As with all torts, a plaintiff must show causation. This is a subject that can be found discussed thoroughly in earlier blog entries.

The LPLA governs litigation against manufacturers and is, in fact, the exclusive remedy against manufacturers. The LPLA also provides a standard that if all the elements are not met may allow manufacturers to try to dismiss the case completely. This can be seen in the following case heard recently by the Court of Appeals, Third District.

On March 9, 2004, four boys in rural Rapides Parish were walking through the woods and found an oil well pump attached to a moving pendulum. Two boys attempted to "ride" the pendulum, but only one succeeded. However, this thirteen year old boy's high spirits and adventure only ended in injuries when his pants became entangled in the other parts of the pump while the pendulum continued to move upward. The mother of this boy brought suit in her name and her son's name against the manufacturer of the oil jack pump, Lufkin Industries, as well as other defendants. In response, Lufkin Industries filed a Motion for Summary Judgment.

As the Third Circuit Court of Appeals explained, "[a] motion for summary judgment is a procedural device to avoid a trial on the merits when there is no genuine issue of material fact." Lufkin Industries argued that the mother failed to show that riding the pendulum was a "reasonably anticipated use" of the oil well pump and supported this argument by assertions that the oil well pump was for the sole purpose of extracting oil and did not "reasonably anticipate" that the pendulum would be ridden. The Court also explained that in a Motion for Summary Judgment, Lufkin Industries, as the moving party only has to "point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." By doing that, the burden of proof shifts to the mother.

The mother demonstrated that Lufkin Industries should have reasonably expected that children would try to "ride" the pumping unit by presenting testimony that an employee of Lufkin Industries had heard of a fatal accident in Shreveport where another teenager attempted to "ride" a pumping unit as well as introducing evidence of three cases in other states where children were injured "riding" a pumping unit. The trial court determined that the mother's evidence was insufficient and granted the manufacturer's Motion for Summary Judgment. On appeal, the Third Circuit reversed allowing the mother to continue the case.

As is illustrated by the above case, the LPLA and the trial process is complex. Failure to prove one element can act as an end point on the entire case. If you or someone you know has been injured by a product, please seek legal help.

Continue reading "Mother Successfully Appeals Motion for Summary Judgment Against Her Case " »

Louisiana law requires owners of businesses to use reasonable care to ensure that their parking lots, sidewalks, entryways, and other areas are safe for the public. If a customer is injured by an unsafe or defective condition, he or she must prove the following four elements in order to recover in tort: 1) the location was within the defendant's control, 2) there was a defect which presented an unreasonable risk of harm, 3) this defective condition caused the customer's injury, and 4) the defendant knew or should have known of the defect.

Whether the condition of the premises posed an unreasonable risk is often the most disputed matter in a slip-and-fall case. Over the years, the Louisiana courts have determined that there is no "fixed rule" for determining whether a defect presents an unreasonable risk of harm. The trier of fact must "balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair." The courts have generally concluded that the analysis of whether a defect presents an unreasonable risk of harm encompasses "an abundance of factual findings, which differ greatly from case to case," such that the analysis "cannot be applied mechanically." As the parties discovered in Beckham v. The Jungle Gym, L.L.C., No. 45,325-CA (La. Ct. App. 2d Cir. 2010.), this means that, practically speaking, slip-and-fall cases are not ideally suited for resolution by summary judgment.

On October 7, 2006, Lisa Beckham took her two children to play at the Jungle Gym indoor playground in West Monroe. Upon arriving, Beckham parked her car in the "overflow" parking lot because the main parking area was full. The overflow lot was unpaved; its surface consisted of dirt, grass, rock, gravel, and chunks of crushed asphalt. When Beckham later returned to her car, she tripped on one or more large chunks of asphalt, fell to the ground, and broke her right ankle. Beckham filed suit against Jungle Gym alleging that the parking lot where she fell was unreasonably dangerous. Jungle Gym filed a motion for summary judgment in which it denied custodial responsibility and asserted that the parking lot did not pose an unreasonable risk of harm. The trial court granted Jungle Gym's motion and dismissed Beckham's complaint.

On appeal, the Second Circuit stated,

"whether a defect presents an unreasonable risk of harm is a mixed question of law and fact that is peculiarly a question for the jury or trier of the facts. It entails innumerable considerations; and, because it requires a balancing of the risk and utility of the condition, it is not a simple rule of law which can be applied mechanically to the facts of any particular case. ... It is 'a matter wed to the facts' and must be determined in light of the facts and surrounding circumstances of each particular case."

Jungle Gym's motion for summary judgment was based on the argument that the risk Beckham encountered in the parking lot was "obvious, universally known, and easily avoidable," and thus not unreasonably dangerous as required to impose liability. The court concluded that while a gravel parking lot's utility is clearly known, the particular facts of this situation would have been better assessed "at a trial on the merits for the determination of whether an unreasonable risk of harm was present." Accordingly, the court reversed the trial court's granting of Jungle Gym's motion for summary judgment and remanded the case for further proceedings.

Following this appeal, Beckham presumably faced the challenge of presenting to the jury the facts and circumstances that demonstrated the unreasonable risk posed by the large chunks of asphalt in the Jungle Gym parking lot. A fact-intensive argument at trial, like this one, unquestionably benefits from the planning and execution of an experienced accident attorney.

Continue reading "West Monroe Slip-and-Fall Case Reviews Premises Liability Standards " »

In Louisiana, a tort suit must be filed within a certain period of time after the incident occurs. This is called the "prescriptive period," and serves several purposes. It puts the defendant on notice within a reasonable period of time that a plaintiff has a possible claim against him and thereby allows him to preserve evidence that may be required for trial. It also supports the state's efforts to resolve legal disputes in a timely manner. The prescriptive period for a specific tort is set by statute. For product liability cases, the Louisiana Products Liability Act "establishes the exclusive theories of liability for manufacturers for damage caused by their products" and creates a one-year prescriptive period for claims that "commences to run from the day injury or damage is sustained." See LA. CIV. CODE Art. 3492.

Filing a lawsuit even one day past the expiration of the prescriptive period can prove fatal to a plaintiff's effort. For example, Carter v. Matrixx Initiatives, Inc., No. 09-31134 (5th Cir. 2010) involved a plaintiff who filed her lawsuit just six days too late and was barred from recovering. On February 23, 2007, Ruth Carter of Livingston Parish used Zicam No Drip Liquid Nasal Gel Cold Remedy and immediately experienced excruciating burning pain in her nose. By the next day, she lost her sense of smell and sense of taste. The pain was so severe that Carter was unable to work and told her employer that she believed the Zicam had caused the burn when she called in sick. Carter sought medical treatment from her primary care physician who did not confirm the cause of her injury but referred her to a radiography center for further examination. During the imaging appointment on May 7, 2007, Carter told the technician about her suspicions about the Zicam. The technician responded that she had received an e-mail communication warning "to be on the lookout for [the same kind of] problem with Zicam." Carter filed suit against Matrixx Initiatives, Inc, the maker of Zicam, on February 29, 2008 in Louisiana state court. The case was removed to federal court where the Louisiana Products Liability Act was to be applied by the court. Matrixx then filed a motion for summary judgment seeking a dismissal, arguing that because Carter's suit was filed six days after the expiration of Louisiana's one-year prescriptive period for product liability suits, Carter's action should be barred. The district court granted Matrixx's motion on this ground, and Carter appealed.

In her appeal, Carter argued that the doctrine of contra non valentem should apply. Under this doctrine, the running of the prescriptive period is suspended "until the facts necessary to state a cause of action are known or reasonably knowable to the plaintiff." The idea is that the plaintiff is not penalized for failing to act until she has "actual or constructive notice of the [tort], the resulting injury, and the causal connection between the two or that the plaintiff's lack of such knowledge was willful, negligent or unreasonable." See Sharkey v. Sterling Drug, Inc., 600 So. 2d 7013 (La. App. 1st Cir. 1992). In effect, Carter's position was that not until her conversation with the radiography technician on May 7, 2007 did she become aware that the Zicam caused her injury and, accordingly, the prescriptive period should not have begun running until that date. The Fifth Circuit rejected this argument. The court found that it was "apparent that Carter first sustained the injury that allegedly resulted from her use of Zicam on February 23, 2007 and that she had actual knowledge of pain and sensory loss on that same day." The court noted that "from the very outset, Carter suspected and attributed her injury to Zicam, and she never wavered in that belief." In the court's view, Carter "indisputably" had both the belief that Zicam caused her injury and a reasonable basis for seeking to hold its manufacturer responsible "on February 24 at the latest." Therefore, the prescriptive period "began running on February 23 (February 24 at the latest)," and so Carter's filing of her lawsuit "was at least five days late." The court affirmed the lower court's dismissal of Carter's claims.

The Carter case is a stark example of how strictly courts enforce the prescriptive periods established by the legislature. If you have been injured by a defective or dangerous product, it is critical to seek legal help immediately so you do not lose your opportunity to file a suit and obtain the recovery you deserve. An experienced trial lawyer will determine the prescriptive period that applies to your case and help you file an action before the window closes permanently.

Continue reading "Louisiana Products Liability Act Requires Swift Action by Plaintiffs " »

Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court

On the afternoon of June 20, 2005, Jesse Brooks, an operating engineer who worked for Industrial Plant Maintenance in St. Gabriel, was driving a backhoe along the shoulder of La. Highway 30. Brooks was followed by his coworker, Steve Harris, in another vehicle. As Brooks approached a driveway that connected with the highway, the backhoe hit a depression and rolled over on its right side. Harris immediately approached the backhoe, where he found Brooks unconscious in the cab. Brooks died shortly thereafter. Brooks's widow, Lola, filed a wrongful death action against the State of Louisiana through the Department of Transportation and Development (DOTD). At trial, the jury found the DOTD negligent in maintaining the shoulder of the highway, returned a verdict for Mrs. Brooks, and awarded her approximately $812,000 in damages.

The DOTD appealed, alleging several errors on the trial court's part. Among them was an improper jury instruction. Under Louisiana law, the trial judge is required to instruct jurors on the law applicable to the issues submitted to them to decide. La. C.C.P. Art. 1792(B). The jury charge "must correctly state the law and be based on evidence adduced at trial... Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues." LeBlanc v. Landry, 21 So.3d 353, 358-359 (La. App. 1st Cir. 2009). If the trial judge "omits an applicable, essential legal principle, [the] instruction does not adequately set forth the law applicable to the issues to be decided by the jury and may constitute reversible error" which is remedied by a de novo review of the jury's findings by the appellate court. Leblanc, 21 So.3d at 358-359; see also Picou v. Ferrara, 483 So.2d 915 (La. 1986).

In its appeal, the DOTD argued that the trial judge incorrectly instructed the jury on the DOTD's duty to maintain and repair its roadways and shoulders and by citing La. R.S. 32:299(A)(2), a statute that permits the operation of farm vehicles on shoulders of public roads. The court agreed that this charge was erroneous, noting that no evidence presented during the trial established that the backhoe was being used as farm equipment. Instead, the court reasoned, the trial judge should have instructed the jury on two other statutes which provide that "a vehicle shall be driven upon the right half of the roadway," and that "a vehicle shall be driven as nearly as practicable entirely within a single lane." La. R.S. 32:71; La. R.S. 32:79. Since the jury was instructed on the wrong law, the court believed the inaccurate instructions misled the jury in evaluating Brooks's own conduct leading up to the incident. The court found the instructions contained a "plain and fundamental error" that "probably contributed to the jury's finding that Mr. Brooks was not negligent in the operation of the backhoe."

Having reached this conclusion, the court conducted a de novo review of the issue of whether Brooks's conduct amounted to contributory negligence. Because he "violated Louisiana law by traveling on the shoulder rather than within the travel lane of the roadway," the court determined that Brooks's conduct was negligent and assessed him 20 percent of the fault in the accident. The court amended the trial court's judgment and reduced Mrs. Brooks's damages award to approximately $650,000.

This case illustrates the critical importance of jury instructions. While in most cases an appellate court is entitled to disturb a trial court's findings only in the case of the trial court's abuse of discretion, a faulty jury charge like the one in the Brooks case can authorize the appellate court to review the evidence and decide the matter as if for the very first time. Although a trial judge is under no obligation to give any specific jury instructions favored by either party (see Leblanc, 21 So.3d at 358), an effective strategy for a plaintiff is to submit to the court suggested instructions as a way of guiding the judge's proper selection of charges. Taking a proactive approach with jury instructions is one way that an experienced trial attorney can help a plaintiff recover the damages he or she deserves--and ensure that the award stands fast on appeal.

Continue reading "Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court" »

Louisiana Court Stresses Importance of Constructive Notice in Trip-And-Fall Cases

In Smithwick v. City of Farmerville, the Second Circuit Louisiana Court of Appeals affirmed a trial court's dismissal of a plaintiff's trip-and-fall case for failure to prove that the municipal defendant had actual or constructive notice of a shallow depression in the city-maintained right-of-way.

The plaintiff, Carol Smithwick, was waiting at a street corner in Farmerville, Louisiana for her child's school bus to arrive. Smithwick was traversing a sidewalk, and as she stepped off the sidewalk and onto the street, she tripped on a depression in the street's shoulder. The depression was shrouded by grasses growing around it, and the depression was not immediately visible to Ms. Smithwick at the time. Accordingly, she tripped, fell, and sustained immediate injuries that later caused reflex sympathetic dystrophy.

Under Louisiana Civil Code, Article 2317, a municipal defendant cannot be held liable for damages caused by dangerous conditions unless the municipal defendant had either actual or constructive notice of the condition, and had a reasonable opportunity after receiving such notice to remedy the condition and then failed to do so. Consequently, Article 2317 required the Louisiana Appeals Court to examine whether the City of Farmerville had actual or constructive notice of the shallow depression that caused Ms. Smithwick's fall.

The court explained that actual notice is "knowledge of dangerous defects or conditions" by an employee or officer of the municipality that has a duty to keep the property involved in good repair or to report defects and dangerous conditions to authorities. An example of actual notice would have been a city road supervisor inspecting the road and noticing the depression before the fall. This is because a supervisor would have a preexisting duty to report the condition to the proper authorities, and because a supervisor is often acting as an agent of the city itself (as opposed to a mere employee). However, because no such discovery was previously made by any such muncipal actor, the court ruled that the City of Farmerville did not have actual notice of the depression.

The court next went on to explain the concept of constructive notice. Referring to La. R.S. 9:2800, the court stated that constructive notice is "the existence of facts which imply actual knowledge." In other words, circumstances involving pedestrians' behavior in the area of the depression or circumstances stemming from physical conditions around the depression could lead to constructive notice. The concept of constructive notice is a more complicated notion than that of actual notice.

In determining whether the City of Farmerville had constructive notice, the court noted that throughout the school year, 35 people regularly gathered in the area of the depression twice a day to wait for their own school children. Of that mass of people, none had ever reported to the City of Farmerville the existence of the depression. Furthermore, the court acknowledged that the City of Farmerville regularly mowed and trimmed the area around the depression and no city maintenance employee had ever previously noticed the shallow depression. As such, the state appellate court ruled that the City of Farmerville did not have constructive notice of the shallow depression either.

Because Ms. Smithwick could not show that the City of Farmerville had either actual or constructive notice of the depression, the court affirmed the lower court's decision that she should not recover.

The first lesson of Smithwick is a blunt one: In trip-and-fall cases, if the defendant has not received prior notice of the dangerous condition that caused the fall, Louisiana courts will not hold the defendant responsible for the plaintiff's corresponding injuries. Defendants have no duty to remedy dangerous conditions they do not have prior reasonable notice of. The second lesson of Smithwick is a more subtle one: The issue of constructive notice can often be a "dealbreaker" in the success or failure of a plaintiff's trip-and-fall claim. Constructive notice is a murky concept that is not always immediately apparent soon after the injury occurs.

Because constructive notice is both an important and little-understood concept, it is imperative that plaintiffs who have recently experienced a trip-and-fall contact an experienced attorney. An attorney is vital in requesting and examining documents that may or may not indicate existing constructive notice. By knowing which questions to ask of the defendant, an experienced attorney can accurately pinpoint whether the defendant had prior notice of the dangerous condition that caused the fall.

Continue reading "Case Demonstrates Slip/Trip and Fall Accidents Can Be Complicated, Require Skilled Attorney" »

Substantial Jury Award Upheld in Jeep Accident

Recently, the 4th Circuit Court of Appeals upheld a substantial jury award to a Louisiana couple whose unborn son was tragically injured after their Jeep Grand Cherokee reversed and hit the expecting mother, pinning her against a brick column. This injury, sustained by the mother, resulted in the baby being born with permanent brain damage. Unfortunately, the child survived less than a month, when the couple decided to remove him from life support. This traumatic event is claimed to be the result of DaimlerChrysler's defective design of the Jeep Grand Cherokee. The couple was awarded $5.08 million in 2008, which Daimler Chrysler recently attempted to appeal; however, the state appeals court affirmed the jury award. Critics have alleged that the award was excessive, and that the couple did not prove that the car's design was actually defective in order to be awarded such an amount. However, their complaint was not the first in regards to the "Park to reverse" problem that year Jeep Cherokee was experiencing.

Analysis of the time line of the case has given rise to speculation that the jury award should not have been upheld. The accident initially occurred on May 21, 1999, and the fatally injured baby was taken off of life support on June 7, 1999. The couple filed their petition against DaimlerChrysler on November 30, 2001, after being informed by a Los Angeles Times reporter that their experience was not unique and that numerous investigations into Jeep Grand Cherokees had been made due to a "Park to Reverse" problem. The matter went to trial on March 31, 2008 and on April 10, 2008 the jury awarded the couple $5.08 million. Following the decision, DaimlerChrysler appealed. The company argued that the trial court erred in not finding that the couple's case had prescribed, as it was filed two and half years after the date of the accident. Further, the company alleged that the trial court abused its discretion in admitting expert testimony and other evidence that allowed the jury to find a defective product and causation. The state appeals court went through DaimlerChrysler's allegations one by one and consistently held the company to be at fault.

To start with, DaimlerChrysler alleged that the case should have not been allowed to be heard, since the couple filed their petition over two years past the date of the initial injury. The court recognized that "prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong...but rather, prescription begins to run against a claimant when he obtains actual or constructive knowledge of facts indicating a cause of action." (Guillott v. DaimlerChrysler No. 2008-CA-1485 (9/24, 2010)). The court reasoned that the husband had no reason to suspect anything other than misfortune in regards to the Jeep reversing into his wife; there was nothing to indicate that the vehicle had a defective design which caused such an event. Further, the couple was never put on notice or told about the issues surrounding problems relating to the Jeep Cherokee. The manufacturer never took action to notify the couple of these problems even though, on June 9, 1999, only a matter of days after the couple's son was taken off life support, the company's local counselor faxed a copy of the couple's accident to Chrysler headquarters. These facts led the 4th Circuit to hold that prescription had not run and the couple had filed their petition against the company in a timely fashion.

Secondly, DaimlerChrysler argued that expert testimony regarding the design of the Jeep Cherokee should not have been admitted. However, the court held that a trial judge has wide discretion in whom to allow and not allow to testify, and as such, it will not be disturbed by an appellate court unless it is clearly erroneous. What is interesting is that when the expert did testify in regards to the vehicles design, he declared that the Research Testing Center that tests the cars for operation before they are mass produced and sold found that the 93-98 Jeep Grand Cherokee had "unintended powered reverse found to occur only when the transmission was not shifted into gated park..." This in fact, is what most likely occurred to the couple on that fateful day when their unborn son was fatally injured.

Thus, contrary to many critics of this recent decision, the 4th Circuit's decision follows the rules of law operating over such legal issues. The couple never had any reason to know of or believe that their vehicle had a design defect that would cause such a tragic event. Further, the company never informed them of the numerous complaints regarding the dangerous issue; the only reason the couple found out about the issues was due to a newspaper reporter who called informing them that they were not alone in experiencing such a traumatic event. Thus, the couple filed the petition against the company shortly after they learned of the Jeep Grand Cherokee problem. Further, the expert testimony was allowed by the trial court, and the judge in such instances is allowed wide discretion to allow in what they deem reasonable for the case. The expert testimony revealed that the company had test results that demonstrated the vehicle's potential problem; however, they failed to resolve such issue. Thus, on appeal, the court held that the trial court's jury verdict was appropriate, not because the event was so horrendous that they blindly awarded such an amount, but rather, because the law supports such a finding and as such, it has been upheld.

If you find yourself in an accident and believe that a flaw with the car or parts therein may have caused the problem, contact an attorney immediately. By doing so you can begin moving quickly to make sure your case is handled properly and efficiently in order to get the justice and compensation you deserve.

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.

Louisiana residents are becoming increasingly concerned about the drywall in their homes, which might be leaking toxins and other contaminants into the bedrooms and throughout the house depending on the manufacturer. Drywall consists of panels made of gypsum plaster pressed between two thick sheets of paper. The panels are used to make interior walls and ceilings. This is frightening for people who live in contaminated homes because of the proximity to possible toxins and poisons: literally they are just a few inches away from deadly poisons.

Many Louisiana residents have filed complaints in court about the drywall over the past few years. These lawsuits were pressed by those looking to recover the money it would cost to replace their drywall with a safer version. Since this process involves major construction, the costs are high and these people rightfully felt like they should not have to pay for unknowingly being exposed to contaminants by the manufacturer.

Because of the dangers involved, and the damage caused to fixtures and elements of the home, many are wondering how they may find out if they are living in a contaminated home. Those who suspect they have the drywall in their homes should be on the look out for health symptoms amongst their family that include runny nose, difficulty breathing, and headaches. If you or any of your family members are exhibiting these symptoms, be sure to contact an experienced attorney today. It is imperative that you act now while the courts are dealing with other cases like yours.

In the past couple months, attorneys and individuals throughout Louisiana were unsure as to how the courts would resolve this matter. Fortunately for those exposed to the defective drywall, the recent Louisiana federal district court decision is good news: a partial settlement has been reached in a class action lawsuit dealing with the defective Chinese drywall installed in homes between 2004 and 2008.

Under the settlement, the manufacturer of the drywall, Knauf Plasterboard Tianjin, will fund a program to replace drywall in about 300 homes throughout the South, including many homes in Louisiana. Many expect another 3,000 homes to receive similar help. Included in the costs will be relocation expenses and any damages to appliances and wiring which occurred as a result of the defective drywall. If you have discovered Chinese drywall in your home, it is not too late to take action to receive the compensation you deserve. The agreed to settlement will undoubtedly provide a guide for how future legal actions will be handled, meaning you might still be able to be compensated for the injuries you and your family have suffered.

Continue reading "Chinese Drywall News a Welcome Sign for Those With Toxic Sheetrock in their Home" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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."

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."

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.

Continue reading "Bastrop Fire Death Leads to Lawsuit" »