Louisiana Personal Injury Lawyer Blog

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

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

Those four elements are:

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

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

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

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

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

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

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.

A recent
With respect to the issue of consent obtained by Dr. Humphries, the Court of Appeals finds that the first form signed by Mr. Price should be presumed valid under Louisiana law, and Mr. Price's statement that he did not read the form does not defeat the presumption. The only way Mr. Price could have overcome the presumption would be if he was able to establish several factors: 1) The existence of a material risk that the physician must disclose, 2) The failure of the physician to inform the patient of this risk, 3) The realization of the risk, and 4) A connection between the failure to inform and the realization of the risk.

With respect to the consent issue, previous courts have held that appellate courts should focus on the duty of a doctor to provide material information to a patient according to the circumstances of the particular case. As long as the trial court has acted reasonably, their findings should not be reversed even if the appellate court would have weighed the evidence differently. Even though there is conflicting testimony, the evidence establishes that Mr. Price did receive specific information about the possibility of removing polyps immediately after they were discovered during his procedure. In addition, three of the four expert witnesses found that Dr. Humphries met the applicable standard of care in obtaining consent. As such, the Court of Appeals finds no manifest error worthy of overturning the jury's findings.

With respect to Dr. Bride, even though he himself did not obtain consent from Mr. Price (aside from supposed verbal consent just prior to the procedure), under La.R.S. 40:1299.40(C) other forms of consent are allowed when the patient is provided with general information about a procedure and risks. Mr. Price received a handout indicating that if polyps were found they might be removed. In addition, Mr. Price was informed that if Dr. Humphries found polyps he would have Dr. Bride remove them. In addition, the wording of the second form signed by Mr. Price makes Dr. Bride an "authorized physician" to perform a polypectomy because Dr. Bride is an associate of Dr. Humphries who performed the additional procedure as necessary. As such, the jury did not manifestly err in concluding it was more likely than not that Mr. Price consented to the polypectomy being performed by Dr. Bride if polyps were found. As such, the Court of Appeals affirms the jury's findings in all respects.

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

The jury awarded the following damages

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

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

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

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

Admitting your elderly mother into a nursing home is supposed to relieve stress and lift a burden from your shoulders. You believe she is going to receive the proper care she needs that you are unable to provide.

Unfortunately, for Edward Lewis, tragedy happened after he made this tough decision. His 93-year old aunt, who Lewis considered a mother, drowned in a whirlpool at Easthaven Rehabilitation Care Center in 2002. The nursing home told Lewis that his aunt died peacefully in her sleep but it wasn't until one month later he learned the truth — an employee had placed his wheelchair-bound aunt in a whirlpool unsupervised, even after Lewis told the staff he did not want her in the water. Sadly, actions that cause harm or even death to a nursing home resident can generate minimal response from the state.

In Louisiana, nursing homes are required to report all "suspicious deaths." Per a NOLA.com article approximately 4,500 nursing home residents die every year in Louisiana and of 250 wrongful deaths reported from 1999-2005, only 15 of those deaths were labeled as "suspicious." Steven Miles, a University of Minnesota professor who published a 2002 report called "Concealing Nursing Home Deaths," said almost half of the reported cause of deaths in nursing homes across the nation is wrong. For example, back in 1998 in Arkansas one 78 year old nursing home resident
suffocated while in restraints. The nursing home had claimed he died from natural causes and failed to report the death for nearly two months. The nursing home was only fined $500. Arkansas then became the only state to require a nursing home to report a resident death. No other state, including Louisiana, has enacted such a law.

In 2005, the Times-Picayune reviewed 250 nursing home wrongful death claims. They found that 52 residents died after being dropped by a staff member or falling, 42 suffered a fatal infection from an untreated bed sore, and 22 died from malnutrition or dehydration. NOLA.com says that inspection reports show that most of Louisiana's 300 nursing homes have been cited from 1999 to 2005 for mistakes that harmed or endangered residents. Additionally, during those six years, at least 760 residents have been harmed
by poor care. However, facilities in Louisiana often pay little or no penalty for fatal errors

Family members in Louisiana are starting to mobilize and speak up for their elderly relatives who were wronged in the facilities they were supposed to be comfortable in. From 1999-2005, at least 250 wrongful-death lawsuits were brought against nursing homes, resulting in 88 settlements or jury awards. Experts say nursing homes are less likely to break the rules when they know they'll be punished.

What types of claims can you make for a disappointing experience with a nursing home? Wrongful death is a prominent one. This means that the nursing home's negligence caused one of the elderly resident's death. The tragedy involving Lewis' aunt would be characterized as a wrongful death because not only did the nursing home put her in the whirlpool when she should not have been, but they failed to supervise her, leading up to her drowning.

Additionally, after Hurricane Katrina, a multitude of nursing home residents died as a result of the storm. Several wrongful lawsuits are pending that blame the nursing homes themselves for not mobilizing and evacuating the residents. At Lafon in Orleans Parish, nuns that were in charge of the residents were able to evacuate, but somehow the elderly were left on the first floor of the home, as water seeped in to the home, covering three feet.

More so, a classic negligence claim is possible. Here, the nursing home is careless but thankfully, no death results, just injury. An example would be mixing up medications for patients or leaving residents unsupervised and a potential fight or argument breaks out, leaving some residents with injuries.

Therefore, if you think a loved one died from a wrongful death in a nursing home, contact the Berniard Law Firm Toll-Free at 1-866-574-8005 and an attorney will be more than happy to help you.

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

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

Medical malpractice insurance is a big expense for health care providers. The average award in 2006 for medical malpractice claims was $521,560. To alleviate the financial burden on individual providers, the State of Louisiana created the Louisiana Patient's Compensation Fund.

Under Louisiana Revised Statutes 40:1299.44:

State health care providers are automatically entitled to be covered by the fund. Private health care providers are eligible for coverage as well. The liability of each qualified health care provider is limited to $100,000 plus interest, per patient, per incident. Any judgments, settlements, or arbitration orders in excess of $100,000 per provider are paid out of the Patient's Compensation Fund.

To illustrate how the fund works, we look at a 2003 Court of Appeals case involving the Southwestern Louisiana Hospital Association in DeRidder, Louisiana. Divorced parents brought individual actions against a doctor for his negligence in causing their son's death. The doctor admitted fault and paid $100,000, the maximum amount he is individually responsible for. The Compensation Fund then paid $250,000 to the father, and an additional $400,000 to the mother, bringing the total damages to $750,000.

The total amount awarded in this case actually exceeds the $500,000 maximum damages amount in a medical malpractice case. Section 1299.42 states:

The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.

The single $500,000 cap applies collectively to all claims which flow from one act of malpractice resulting in a victim's injury or wrongful death. Future medical costs are paid as they are incurred from the Patient's Compensation Fund.

Because the $750,000 award in the above case was well beyond the limit, the damage award was reduced to reflect the $500,000 limit on medical malpractice damages. The mother's award was subsequently reduced from $400,000 to $150,000 to reflect the limit.

Louisiana Patient's Compensation Fund Recap:

(1) Medical Malpractice awards limited to $500,000
(2) $500,000 cap applies collectively to all claims which flow from one act malpractice
(3) $100,000 maximum liability for individual health care providers
(4) Future medical expenses are covered by the fund

More than 98,000 people are killed each year as a result of medical errors. The rights of the deceased are protected in court through what is called a survival action, which allows the relatives to file a claim in place of the deceased for conscious pain and suffering, damage to person/property, and medical expenses. Survival actions are commonplace where a doctor's negligence caused someone's death.

The law was unsettled, however, on whether parents could bring a survival action for an unborn/stillborn child. A 2010 Louisiana Court of Appeals case addressed this very issue:

Carli Long, 7 months pregnant, was injured in a car accident. She was pinned in her vehicle and was ultimately diagnosed with a hip fracture. She was admitted to the ER shortly after the accident where the attending nurse charted a fetal hart rate of 120. Two hours later, nurses were unable to detect a fetal heart rate. Long underwent a cesarian section to deliver the stillborn child. She subsequently filed a survival action on behalf of her unborn child.

Louisiana Civil Code article 26 provides that

An unborn child shall be considered as a natural person for whatever relates to its interests fro the moments of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death (does not include survival actions).

In 1997, a Louisiana court, addressing the issue of an unborn child's right, stated

A cause of action can be pursued only if the fetus is subsequently born alive. A survival action for damages suffered by a stillborn fetus clearly does not fit within this first exception because the stillborn fetus is not born alive. Because it is born dead, it is as though it had never existed and the cause of action it acquired became conditional on its live birth. (Wartelle v. Women's and Children's Hospital, Inc.)

A survival action is based on the victim's right to recovery being transferred upon the victim's death to the beneficiary. Therefore, a baby's rights transfer to the parents upon the child's death, if and only if the child was born alive. Under Louisiana law, a stillborn fetus cannot transfer any rights because it has acquired none. Rights are only acquired in a live birth.

Although Long was unable to recover for her survival action under Louisiana law because she delivered a stillborn child, it is important to pursue all possible options. Long may still have had a valid claim for negligence or wrongful death against her nurse or doctor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following the explosion on the oil rig Deepwater Horizon 50 miles southeast of Louisiana’s coast Tuesday night, officials, crewmembers, and their families most likely have had serious questions about what could have ignited such an intense fire. At this point the cause is unknown and formal investigation will not be underway until rescue and firefighting efforts are completed.

The Times-Picayune reports:

The Coast Guard's Command Center in New Orleans received a report Tuesday about 10 p.m. that the rig was on fire and the crew was evacuating.

Luckily crewmembers perform safety exercises on a regular basis and are familiar with evacuation procedures. There were also several offshore supply boats in the area that provided assistance.

Just prior to the fire, the crew was cementing a production casing atop an 18,000 foot deep well. The plan was for the well to be abandoned and later tied into production facilities. This was done according to plan with appropriate testing completed and most likely was not to blame.

The Deepwater Horizon is owned by Transocean, Ltd., the world’s largest offshore drilling contractor. Transocean is a Swiss Company with offices in Houston. The rig has has been leased to BP Exploration Production Inc. who pay about $500,000 a day to use the huge 400 by 250 foot rig (roughly the size of two football fields). Last summer the Deepwater Horizon drilled the world’s deepest oil well, nearly six miles into the Gulf of Mexico, and enabled BP to find the Tiber Prospect, one of the largest petroleum discoveries in the US. While BP picks drilling locations for the Deep Horizon and designs the well, Transocean devises the drilling plan and operates the rig. The rig is only used for drilling and does not actually produce any oil.

The Associated Press reports:

Adrian Rose, vice president of Transocean, said the explosion appeared to be a blowout, in which natural gas or oil forces its way up a well pipe and smashes the equipment. But precisely what went wrong was under investigation.

Because Tuesdays explosion occurred in international waters, the U.S. Occupational Safety and Health Administration (OSHA) will not be able to investigate. However, according to OSHA, Transocean has no safety violations for the past five years. BP on the other hand has two open and 27 closed cases. BP also operates the site of a 2005 refinery explosion in Texas City, Texas that killed 15 people and injured 170. That accident was investigated by the U.S. Chemical Safety and Hazard Investigation Board. According to Bloomberg News, the Board is considering investigating this rig incident as well.

After missing crewmembers are found and safely evacuated, the cause for the accident can be investigated thoroughly and the damage to the rig (whether it can be saved) properly assessed. The Deepwater Horizon was built in 2001 in South Korea. It cost about $350 million to build and has a replacement value between $500 and $600 million.

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

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

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

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

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

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

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

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

Leesville Bank not Liable for Wrongful Death: Louisiana Supreme Court Finds no Breach of Duty

At 1:30 a.m. on November 13, 1992 Jesse Pinsonneault left his job as assistant manager at a pizza parlor and went to deposit the daily receipts into the night deposit box at nearby Merchants & Farmers Bank & Trust Company in Leesville. Tragically, 23 year old Jesse never completed his task and was robbed, shot, and killed by two escaped convicts. Jesse’s parents James and Debra Mae Pinsonneault brought a wrongful death suit against the bank where they alleged that the bank failed to provide adequate security for after hours patrons.

After trial, the trial court ruled that the bank did owe Jesse duty but that the duty was not breached and therefore the bank was not liable. The plaintiffs appealed and the appeals court ruled that the trial court was manifestly erroneous in determining there was no breach of duty and held that the bank was liable. Following the appeals court decision the Supreme Court of Louisiana handed down Posecaci v. Walmart Stores, Inc. where they adopted a balancing test for determining when business owners owe a duty to provide security for their patrons. In light of this decision the Supreme Court of Louisiana sent the Pinsonneault case back to the Court of Appeals where they reexamined the duty issue and reaffirmed their previous decision.

In 2002, the Supreme Court of Louisiana considered the case again and found that the Court of Appeals was not correct in reversing the trial court’s decision because they did not appropriately apply the manifest error standard.

According to the decision, Louisiana courts employ a duty-risk analysis to determine whether to impose liability under La.Civ. Code art. 2315. The analysis requires plaintiffs to prove five elements to be successful. First, the defendant had a duty to conform their conduct to a standard. Second, they did not conform their conduct. Third, the defendants failure to act appropriately was a cause in fact of the plaintiff’s injuries. Fourth, the conduct was a legal cause of the injuries. And fifth, damages resulted.

While business owners generally do not have the duty to protect others from acts of third parties they must implement reasonable measures to protect patrons from criminal acts that are foreseeable.

Foreseeability was the key factor in the Court’s decision here. There had only been two armed robberies of the bank during the daytime in the fourteen years prior to the attack, and there had never been an attack on a customer (or any attack on a night time depositor in all of Vernon Parish). Because a similar crime never occurred at the bank previously, the Court found that customers faced a low crime risk and there was not foreseeability that would require the bank to employ heightened security measures.

Additionally, while the views of both courts regarding whether the bank took adequate precautions were permissible, because the determination is a factual one, it requires a balancing of factors. The balancing of facts in a case is best accomplished at the trial court level and it is not the role of an appeals court to second guess the trial courts determination but merely to pinpoint clear error if it is present. Here the trial court appropriately took into account the lighting, fencing, shrubs, etc. and determined the security measures were adequate.

This case demonstrates just how much courts tend to defer to the decisions of a trial court, particular regarding factual determinations. Trial courts have the resources to take into account the nuances of the facts of each situation. The factual findings of a trial court will be upheld even if the view of the facts taken by both courts are reasonable.

30 year old Shannon Sampson of Minden was on the job as a supervisor with GATX Rail Field when he fell into a rail car and later died from his injuries. According to Webster Parish's public information officer, Jenny Reynolds, Sampson fell after passing out due to a lack of oxygen.

As reported by the Shreveport Times on their website on March 12th:

Sampson was flown from the scene to a Shreveport hospital, where he later died. Bossier Parish Fire District No. 1 Assistant Chief Skip Pinkston told deputies the oxygen level in the rail car was 7.3 percent, 'which is about half of what we need to function,' Webster Parish Sheriff Gary Sexton said.

GATX Rail Field disassembles and refurbishes rail cars. According to another employee, workers often deal with rail cars that contain (or have held) hazardous materials. This incident is still under investigation to determine what caused Sampson’s fall.

In tragic situations like this one where someone has died in a workplace accident, their employer may be responsible for the damages. Surviving family members may pursue a wrongful death lawsuit and recover the cost of medical expenses, lost wages, or compensation for pain and suffering or loss of companionship.

Whether an employer will be held liable for a wrongful death depends on whether they acted negligently. A negligent action (or inaction) is one that falls below the appropriate standard of care for the situation. When someone works in an inherently dangerous environment the employer must take adequate precautions to ensure safety measures are in place and that employees are properly trained to deal with the dangers present. Cases often hinge on whether the given injury was forseeable. If the employer should have known that it was likely an employee could be injured or killed and did not take action to prevent the injury they will more likely be held liable.

However, what happens when an individual (or their survivors) sues the company they work for? Will the company be held liable even if the president of the company or some official company representative was not negligent? For example, what if someone is killed in a workplace accident due to the negligent actions of a co-worker? The answer to this question is most likely yes.

Under the legal doctrine of Respondeat superior, employers are responsible for the actions of their employees as long as the action in question occurred in the course of their employment. Respondeat superior is also referred to as the Master-Servant rule because it holds masters (employers) responsible for the negligent actions of their servants (employees). In order to prove the liability the employee/employer relationship must be established as well as the scope of the employment. Something occurs within the scope of one’s employment if it happens substantially within the time and geographical limits of the employment and, at least partially, was intended to further the employer’s business.

Proving Employer negligence in a wrongful death lawsuit can be a difficult task. Particularly in an inherently dangerous workplace where a judge or jury will probably believe the injured employee assumed a certain amount of risk in simply in taking their job. The attorney bringing the claim must understand all of the facts of the case to be able to pinpoint employer fault--whether in company policy, procedures, or in the actions of other employees. If someone you love was injured or killed at work it is vital that you have the best possible representation.

Continue reading "Minden Rail Worker Dies After Job Accident " »

As reported by the Ruston Daily Leader in January of this year, the family of Henry White has filed a lawsuit against Grambling State University, its supervisory panel, and the Louisiana Board of Trustees of State Colleges.

In August 2009, 21 year old Henry White was a criminal justice major and basketball player for GSU. He collapsed during what the school termed a "conditioning" drill that involved White and other students running without water in 100 degree heat. White was taken to the hospital after players tried to revive him by pouring water on him. No one called for assistance for 20 minutes. White died a little less than two weeks later.

According to the article, Natalie Wood, White’s mother filed the suit and alleges that

White and other players were forced by Portland [an assistant basketball coach] to run four miles for failing to timely register for school.

The lawsuit does not specify the damage amount. However, White’s mother has been left to pay $300,000 in medical expenses alone.

If a love one has died and the death may have resulted from the negligence of another person or entity, the individual’s survivors may be entitled to collect damages in a wrongful death lawsuit like this one. The damages that can be recovered vary according to the relationship between the deceased and the survivor(s) and can include cost of medical expenses, compensation for pain and suffering, payment for lost wages or benefits the person who has died would have received.

Not just anyone may file a wrongful death claim in the state of Louisiana. Only a surviving spouse, child, parent or guardian, siblings or grandparents may sue for wrongful death. Family members beyond siblings and grandparents may not sue and do not have the right to recover. Siblings may only recover if there is no surviving spouse, child, or grandparents, and they file a suit on behalf of the estate of deceased person and recover through that estate.

The loss of a child is an especially traumatic and tragic event for a parent. Loss of consortium describes another type of claim that typically applies to spouses who have lost their spouse and allows recovery for lost companionship. Loss of consortium can also sometimes extend to parents who have lost a child or children who have lost parents. This type of claim is called a “filial consortium” claim and pays damages for the lost love, companionship, or care of the child or parent. Loss of consortium claims can be difficult to prove because they deal with emotional damages that a court may regard as speculative. In addition, filial consortium claims are not allowed in all states.

This area of the law is obviously very complex. It is absolutely necessary that anyone bringing a wrongful claim know these types of cases inside and out to ensure a maximum recovery. Part of this requires hiring a knowledgeable attorney who can handle the variety of complex legal issues that arise from such tragedies.

The family of 50 year old Adrian Flores, Sr. will collect $10 million in damages according to the recent ruling of a Texas District Court. A crane operator, Flores was crushed to death while working for Gulf Marine Fabricators. Gulf Marine Fabricators is a subsidiary of Houma based Gulf Island Fabrication, a company that builds structures in the oil and gas and marine industries.

As noted in an article on Homatoday.com,

On the day he died, Flores and three other crane operators were tasked with lifting a 1,200-ton piece of offshore platform, according to court papers. As they worked, a boom on Flores’ crane loosened, throwing the load off balance and onto the cab.

During the trial, evidence was presented that six to nine cranes should have been used for the project, that the company did not devise an adequate "lift plan," and that Flores was not made aware of the potential danger. According to trial testimony, Flores had worked for at the same job site for 10 years and was considered one of the most skilled crane operators.

Flores' wife and six children will receive the money, which was slightly less than the jury award of $11.1 million, as compensation for the death and for their pain and suffering. In a wrongful death lawsuit, the survivors of someone who has died may be awarded compensation to cover the costs of medical and funeral expenses, lost wages, and for their pain and suffering. However, an employer is not always presumed liable if one of their employees becomes injured or dies while at work.

In order to be liable in a wrongful death claim, the defendant must be found to have acted negligently. This means that the defendant owed a duty to the injured party, breached that duty, and that the death forseeably resulted from the breach. In an employer/employee relationship an employer has a duty to take reasonable measures to those in his employ safe. As in this case, if an employer does not take adequate safety precautions he may be liable for the wrongful death.

If you have been injured or someone you love was killed in a workplace accident you may be entitled to collect compensation for the tragedy that has befallen you.

Continue reading "Houma Company to Pay $10 Million in Wrongful Death Lawsuit " »

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

According to the article,

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

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

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

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