Articles Posted in Car Accident

33-032619-photoTrials are decided solely upon the evidence presented. A judge cannot read a book on the subject, or do extraneous research on the internet, to aid her decision-making process. In this case, the Defendant claimed that the judge did just that, by calling a city official to confirm some data. The appellate court thought otherwise. So, what do you do when you feel as if the Judge made a decision unfairly?

Plaintiff Vicke Mosley was driving down Mansfield Road in Shreveport when she was struck by Jacob Griffin’s vehicle at the intersection of Valley View. The crash rendered Mosley unconscious and he had to be hospitalized for three days. Mosley claimed Griffin ran the red light, while Griffin claims the light had turned green as he entered the intersection. Mosley filed a lawsuit against Griffin and his insurer.

Witness accounts depicted Mosley entering the intersection on a yellow light, and Griffin edging out into the intersection before his light turned green. Mosley’s attorney also entered a traffic signal inventory (“TSI”) into evidence, which logged the amount of time traffic signals stay certain colors. The only problem with the TSI was that it was from 2011, nearly 3 years before the accident. The Trial Court notified the attorneys for both parties that it would contact the city to confirm the TSI’s veracity. The plaintiff’s counsel was vocal in his support of this action, while defense counsel said nothing.

rusty-car-1207835-1024x680Witnesses can be critical to winning a personal injury lawsuit after an auto accident. Without an impartial third party to attest to what happened, the case can devolve into he said/she said situation. Even worse, when one party is mentally unable to recall the events of the incident, the outcome becomes even more uncertain. Some may be tempted to think their case becomes a slam dunk after that. With one party not even sure of the facts, the other side has to prevail, right?

Plaintiff Lauren Condon (“Condon”) claimed she was rear-ended by Defendant Carol Logan (“Logan”) on the Pontchartrain Expressway in New Orleans on March 25, 2011. Logan denied fault, but Condon claimed a traffic ticket issued to Defendant for following too closely proves Logan was at fault. Condon filed a lawsuit against Logan and her insurer. After several unsuccessful attempts to depose Logan, Logan’s lawyer eventually divulged that Logan has been diagnosed with Alzheimer’s disease and would not be able to testify, either in deposition or in court. Condon then moved for partial summary judgment on the issue of liability. Summary judgment is a procedure where the court makes a ruling without a full trial, based on the information provided in the pleadings and the discovery process. If there is no “genuine issue of material fact,” then the court makes a ruling as a matter of law. La. C.C.P. art. 966. In the case of partial summary judgment, the court rules on one facet of the case, rather than the entire claim.

Logan’s defense team tried to combat the summary judgment motion with affidavits from Logan’s husband and a statement from Logan in the police report. Condon argued these are not admissible and moved to strike the documents. Logan’s attorneys argued that, since Logan has been stricken by mental impairment since the accident, her statement to the police should be admitted under La. C.E. art. 804.

new-orleans-park-2-1501957-1024x768Essential to winning any legal case is having a good lawyer. However, it is even more essential to have a good lawyer when dealing with tricky cases of negligence against the local government. An oversight caused Kenneth Rivarde’s lawyer to submit an incomplete affidavit from a key witness resulting in a lost lawsuit against the city of New Orleans. Mr. Rivarde’s wife, Channelda Rivarde, perished in a motor vehicle accident at the intersection of North Rocheblave Street and A.P. Tureaud Boulevard in New Orleans, Louisiana. Her husband, Kenneth Rivarde (“Mr. Rivarde”) sued the City of New Orleans (“City”) claiming that the accident was a result of a high-speed chase when the New Orleans Police Department (“NOPD”) was pursuing a fleeing felon. The accident occurred when the felon ran a stop sign and struck the car Channelda Rivarde was a passenger in. So, what happens if your lawyer submits an incomplete affidavit in a fatal car accident case?

The City filed a motion for summary judgment to dismiss the case on the basis that there was no genuine dispute of material fact three days before the discovery cutoff date. The District Court granted the City’s motion.

Mr. Rivarde appealed and argued that the granting of summary judgment and dismissing the case was improper because it was prior to the completion of adequate discovery pursuant to LA C.C.P. art. 966(A)(3), and there was a genuine dispute of material fact as to whether the NOPD breached its duty by engaging in the high-speed chase resulting in the accident that ended Mrs. Rivarde’s life.

singer-4-1433613-1024x681In order for a court to assess a fair amount of money to be paid for one’s injuries, it is necessary for the injured party to present sufficient evidence to justify that amount.  Without sufficient evidence, it is entirely possible for a court to award an incorrect amount of money to the injured party. A trial court is generally allowed a certain amount of discretion (or freedom) to make a proper judgment.  It must, however, come to a reasonable conclusion. An appellate court may alter the award if the judgment is incorrect based on the evidence provided. In 2016, the First Circuit Court of Appeal decided to do just that in a case that involves lost wages over an inability to audition for new jobs. 

In October 2012, Dr. Ebony Woods was rear-ended in a car accident in Baton Rouge.  As a result of this accident, she suffered some neck, back, and leg pain for which she underwent several months of chiropractic treatment.  Since the other driver was a minor, Dr. Woods filed a lawsuit against the other driver’s tutrix (or legal guardian) and their insurance company, Pure Insurance Company.  She based her claims on negligence, stating that the driver in the other vehicle, Logan Hall, had driven inappropriately and caused the accident. She sought payment for her medical bills, pain and suffering, loss of enjoyment of life and lost wages.  Pure Insurance acknowledged the fault of Mr. Hall in the accident and the authenticity of Dr. Woods’ medical bills. In 2015, the case went before a judge. This trial was based on whether Dr. Woods was entitled to monetary damages for lost wages, pain and suffering, and loss of enjoyment of life.   The court awarded her $35,000 for her lost wages as well as $32,000 for her pain and suffering and loss of enjoyment of life. Pure Insurance appealed this judgment.

Part of Pure Insurance’s appeal was based on the fact that the trial court should not have awarded Dr. Woods the $35,000 for lost wages or opportunity of income.  Thus, the issue here was whether Dr. Woods was entitled to this amount based on the evidence she presented. In order for the court to award money for lost wages, a plaintiff must prove he or she would reasonably have made the amount requested if not for the defendant’s wrongdoing.  Driscoll v. Stucker  893 So.2d 32, 53 (La. 2005).  For lost opportunity of income, the plaintiff must prove that an injury resulted in an incapability to perform tasks they would otherwise be able to do for wages. Levy v. Bayou Indus. Maintenance Services, 855 So. 2d 968 (La. Ct. App. 2003).  This proof must be certain and not merely possible or conjecture.   Walker v. Bankston, 571 So. 2d 690 (La. Ct. App. 1990)

city-dark-dawn-248159-1024x683The state is not a guarantor of the safety of motorists using their roads, meaning you must be vigilant and careful while driving. See Thompson v. State of Louisiana, 701 So.2d 952 (La. 1997). But what happens when something falls on your car while you are driving on a public street, are you out of luck? Or is the state or owner of the fallen property potentially liable? Typically, the owner of an item (i.e., a tree) is liable for the damages caused by its “ruin, vice, or defect,” if it’s shown that they knew or should have known of the “ruin, vice, or defect” that caused the damage, and that the damage could have been prevented if the owner exercised reasonable care. La. C.C. art. 2317.1. However, if the damage is caused by “an act of God,” also known as force majeure, defined as an unusual, sudden, and unexpected force of nature, then this results in no individual being held liable for the damage caused. Brown v. Williams, 850 So.2d 1116 (La. Ct. App. 2003).

In 2007, Larry Mitchell (“Mr. Mitchell”) and a passenger were driving on Highway 80 in Ruston, Louisiana, when a large tree, estimated to be 70 feet tall, fell across the highway onto the front of Mr. Mitchell’s vehicle. The tree was near the highway but on the property of Beverly Hill-Hercules (“Ms. Hercules”). As a result of the tree falling on Mr. Mitchell’s car, he suffered severe fractures in his spine and nose and was bruised and lacerated. In fact, at the time of the trial in 2014, Mr. Mitchell was still required to wear a cervical collar for stabilization. Mr. Mitchell sought damages from Ms. Hercules, the Department of Transportation and Development (DOTD), and their insurers, alleging that the tree was sick (i.e., defective), and should have been removed prior to the accident.

At trial, DOTD and Ms. Hercules argued that the accident was “an act of God,” meaning they were not liable for the damages caused. Through testimony presented it was clear that the DOTD did not require its employees to examine all trees along the highway looking for diseased trees, rather, Tommy Lane Boddie (“Mr. Boddie”), a DOTD employee, testified that he only looked for and reported trees that were leaning and were in danger of imminently falling. Further, Ms. Herculeses’ deposition, which was read into the record, provided that it was very windy on the night of the accident and the tree was completely uprooted.

paper-family-1186206-1024x676Summary judgment is a legal standard many courts use when there are not enough facts in dispute to even proceed with a lawsuit. When applicable, this is a good strategy for a defense attorney to use because it purges claims that have no merit, saving time and money. The Fifth Circuit Court of Appeal demonstrated this principle within the context of an employment discrimination lawsuit. The following case demonstrates how an employer can use the Courts to deny a Family Medical Leave Act Claim.

Michelle Calderone was an employee of TARC in Hammond, Louisiana. While she was employed, Calderone was involved in a car accident where she was initially diagnosed with a chip fracture to her ankle. Nine days after the accident, she returned to work. About a month later, Calderone was further diagnosed with a crack in her sternum and was instructed to remain on bed rest. TARC’s CEO, Kathleen Abels, gave Calderone permission to work from home. A month later, Calderone proposed splitting up her time equally at home and at work, and Abels agreed. Calderone submitted a doctor’s note allowing her to work the split schedule, which specified no lifting, climbing, or travel and warned of the injury’s existence for 6 months or more. After the split schedule began, Abels gave Calderone a document that characterized her split schedule as temporary and only in effect until March 31, 2012. She did not sign the document, but she submitted a written response opposing some aspects of the document, such as her disability characterization, the revocation of the split schedule, and the failure to inform her of FMLA rights. Abels denied Calderone request.

After Calderone’s doctor gave the release, Calderone returned to a full-time schedule. Calderone did not request any leave thereafter or object to resuming her split schedule. Seven months after returning to a full-time schedule, Calderone resigned stating that she cannot successfully complete her duties under Abels’ management but failed to mention any issues regarding her leave, injuries from the car accident, or timing of her return to work from those injuries.

car-breakdown-1444955-1024x683Comedian Chris Rock once famously opined that insurance should be renamed, “In-case-of.” You pay for insurance every month “in case of” some unfortunate circumstance occurring. Well, you better have access to an excellent attorney “in case of’ the other driver not having the insurance, or even the car, in his name. This is what happened to Wanda Kahl. When the insurance company disputed its obligation to pay for her injuries, Ms. Kahl was subject to a protracted legal battle in court.

Ms. Kahl was driving down Jane Ave in New Iberia one summer day in 2012 when she was rear-ended by a hit-and-run driver. She filed a lawsuit against the vehicle’s owner and his insurer. The registered owner, Tricky Chevalier, later testified in a deposition that the vehicle in question was ostensibly a “straw purchase.” That is to say, Chevalier had purchased, registered, and insured the vehicle in his name but all for the benefit of his cousin, one Joseph Pete. Mr. Pete operated the vehicle, and also paid the insurance premiums, while Chevalier remained owner in name only. After this deposition, Safeway Insurance moved for summary judgment. A summary judgment motion requests that the court rule for the movant without a trial because the evidence presented thus far shows “no genuine dispute of material fact.” La. C.C.P. art. 966. Safeway claimed Chevalier’s admission constituted a material misrepresentation of fact, without which he would not have received coverage. Since the coverage was procured by misrepresentation, Safeway argued that the contract for coverage was not valid, so they were not responsible for payment.

Ms. Kahl appealed Safeway’s summary judgment motion and countered with a summary judgment motion of her own, asserting that the law clearly states the accident must be covered. She relied on La. R.S.32:900(F)(1) to show that Safeway is obliged to pay. Safeway argued that the statute does not apply to the policy in question since this policy is an “automobile policy,” and not a “motor vehicle policy.” Safeway contended that to be a “motor vehicle policy,” the policy must be certified in accordance with La. R.S.32:898, and there no proof of this. Therefore, the policy in question is an automobile policy and not a motor vehicle policy. The trial court agreed, granting Safeway’s motion and denying Ms. Kahl’s.

65-Email-3_13_19-1024x683A common litigation tactic for plaintiffs is to bring cases in federal court to obtain greater damage awards. However, a plaintiff must have a viable claim under federal law or their case will be dismissed by the federal district court for lack of jurisdiction.

Following a car accident in which Cheryl Price was hospitalized with injuries, she hired attorney ES to represent her. ES secured a settlement for approximately $4,000 from the at-fault driver’s insurance company, the check for which ES deposited into his firm’s trust account. A lien placed by the hospital prevented ES from immediate disbursement of the money to Price. ES stated that the check included “Medicaid Recovery” as a payee, and told Price that he could not release the money until the lien issue was resolved. Price filed a complaint against ES with the Louisiana Attorney Disciplinary Board who conducted an investigation and concluded that no disciplinary action was warranted. ES’s firm eventually endorsed the check and released the money to Price.

Price then filed a pro se motion against ES, the Louisiana Attorney Disciplinary Board, the Louisiana Department of Health and Hospitals, and the Louisiana Office of Risk Management claiming violations of due process under the 14th Amendment, violations under 42 U.S.C. §§ 1983 and 1985, and violations of state law. Price sought compensatory and punitive damages. All defendants moved to dismiss her claims.

revolt-368925-unsplash-1024x683Imagine you are driving home from work and you collide with another vehicle. Would your employer be liable for the damages? For most commuters, the employer is not accountable for any accidents that occur on the way to or from the place of work and the employee’s residence. But in certain cases, such as where an employee is traveling with a specific business purpose under the direction of the employer, the employer may be on the hook under a theory known as vicarious liability. Effectively, vicarious liability holds an employer liable for an employee’s negligence when the employee is acting within the scope of the employer’s business. La. C.C. art. 2320.

On December 20, 2009, James Richards was traveling from Texas to his home in Florida along Interstate 10. In Bienville Parish, Louisiana, Richards collided with a van, causing the death of the driver and severe, paralyzing injuries to the passenger, Ricky Winzer. In 2010, Winzer filed a lawsuit against Richards and Richards’s employer, Certified Constructors’ Service, Inc. (“CCSI”). Winzer alleged that Richards was acting in the course and scope of his employment at the time of the accident, making CCSI liable through the doctrine of vicarious liability. CCSI filed a motion for summary judgment, arguing that Richards was not employed at the time of the accident and therefore CCSI could not be liable for his negligence. The trial court, after an evidentiary hearing in which depositions, interrogatories, and payroll documents were submitted, granted CCSI’s motion. Winzer appealed to Louisiana’s Second Circuit Court of Appeal.

Upon review, the Court reiterated the general rule under Louisiana jurisprudence that an employer is not liable for an employee’s negligence when they are driving to and from work unless the employer provides the transportation, pays expenses or wages for the time spent traveling, or has assigned the employee a specific  task to perform for the employer. See Woolard v. Atkinson, 988 So. 2d 836 (La. Ct. App. 2008). To determine if the employee’s actions fall within one of the above exceptions, courts must examine the following factors:  the employer’s power of control; the employee’s duty to perform the act in question; the time, place, and purpose of the act in relation to the employment; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; the employee’s motivation for performing the act; and the employer’s reasonable expectation that the employee would perform the act. See Orgeron v. McDonald, 639 So. 2d 224 (La. 1994).

metal-1314941-1-1024x680It is all too easy to forget just how dangerous driving can be. In addition to human factors such as sleepiness, being distracted, and stress, there is also the unpredictability of the road. Uncontrollable circumstances such as the weather or wild animals that dart into traffic can turn a regular commute into a devastating experience. But who is to blame when something unforeseeable, such as a force of nature, causes a highway catastrophe? This issue was addressed after a multi-vehicle accident on Interstate 10 near the Michael Boulevard exit in New Orleans on December 29, 2011.

Randall White’s car was the 25th of the 40 vehicles involved in the accident. White and his wife filed a lawsuit against the Louisiana Department of Transportation and Development (“DOTD”), the City of New Orleans, and the Little Pine Limited Partnership “Little Pine.” The Whites claimed that the pile-up was caused by thick fog combined with smoke from a marsh fire that had been burning since August 2011 on land owned by Little Pine. According to the Whites, the fog and smoke, in combination with faulty street lights, compromised visibility on the highway and caused the accident.

The DOTD filed a motion for summary judgment, a motion for judgment as a matter of law rather than on the merits of the case. La. C.C.P. art. 966. The DOTD argued that it had no notice of the fog in the area, had no responsibility for the street lighting issue, had no duty to protect the Whites from the fog or smoke, and it was shielded by governmental immunity. To support the motion, the DOTD relied on affidavits from DOTD engineers, the New Orleans Public Works Director, and the New Orleans City Council, as well documents such as the New Orleans Police Accident Report and the National Weather Service Report from the date of the accident. The trial court granted the motion and dismissed the Whites’ claims. In response, the Whites appealed to Louisiana’s Court of Appeal for the Fourth Circuit.