Articles Posted in Car Accident

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adult-automotive-blur-13861-1024x683Many workers hope that, should they be injured on the job, financial protections are in place to ensure that they have plenty of time to recover before going back to work. The protections are often in the form of workers’ compensation payments. However, these protections will not protect an injured worker indefinitely. Should a doctor find that a worker is fit enough to return to the job, the employer has the right to fire an employee that refuses to return to work. It is important to understand when an injured worker is required to return to the job and what needs to be proven to extend the payment period.

Kerry West was involved in a car wreck while he was working for the Sewerage and Water Board of New Orleans (“S&WB”). Mr. West had worked for S&WB for approximately 25 years. After the accident, Mr. West did not return to work. This was under the advisement of his primary care physician, Dr. Waterman. Because it disagreed with Dr. Waterman’s opinion, S&WB sent Mr. West to another doctor for a second opinion, Dr. Steiner. In contrast to Dr. Waterman’s evaluation, Dr. Steiner found that Mr. West could return to work. However, this return was limited to light duty work. S&WB offered Mr. West an accommodating position of light duty work. Despite the new evaluation and the offer of light duty work, Mr. West refused to return to work in the new position. He relied on the opinion of his primary care physician, Dr. Waterman. In response to Mr. West’s refusal to go to work, S&WB held a pre-termination hearing. Mr. West was allowed to testify on his own behalf. He claimed that he was unable to return to work in any fashion. Mr. West was then fired by S&WB pursuant to Civil Service Rule IX § 1.1, as he was unwilling to return to work.

Mr. West then appealed his termination to the Civil Service Commission for the City of New Orleans. The Commission performed a hearing, where both Mr. West and S&WB testified and presented evidence on Mr. West’s ability to work, and his refusal to do so. Independently, the Commission found that S&WB had found sufficient cause to terminate Mr. West. It was this decision by the Commission that Mr. West appealed to the Louisiana Court of Appeal, Fourth Circuit.

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19-Picture-05-22-2019-1024x658The strip of grass between the street and the sidewalk seems harmless enough. Yet, when negligently maintained, it can pose a danger to the public. The case that follows helps determine who should be liable for such a defect when an injury occurs on that piece of property.

Edward Cusimano was delivering pizzas in the Parish of Jefferson. He stopped in front of the defendant’s house to deliver the pie to the neighbors across the street. He got out of his car, walked around to the passenger side to get the pizza, and stepped in a hole and was injured. The hole was on the grassy stretch of land between the road and the sidewalk. Mr. Cusimano filed suit against the Parish of Jefferson and against the owners of the property that had the “grassy hole” in front of it. The defendant property owners claimed that the area where the hole was located was public property and therefore, they were not liable for injuries that occurred due to a defect on that land. The plaintiff, however, claimed that they had a duty to maintain the property, as they owned the property in question. Mr. Cusimano claimed they should have been aware of the hole’s existence, as they had maintained that part of their property for many years. Because they owned the property and should have known of the defect, Mr. Cusimano claimed the defendant landowners should be liable for his injury. The trial court granted the defendant’s motion for summary judgment, as Mr. Cusimano failed to show that the defendants actually knew of or created the hole that caused his injuries. Mur. Cusimano appealed the trial court’s decision.

As the appeal was for the grant of summary judgment, the Louisiana Court of Appeal, Fifth Circuit would review the judgment from the beginning, or de novo. The Court of Appeal noted that “the party moving for summary judgment bears the burden of proof.” La. C.C.P. art. 966(C)(2). Therefore, Mr. Cusimano had the burden of showing that the defendants were liable for his injuries. 

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asphalt-clouds-daylight-730662-1024x683Guardrails serve a life-saving function on our roads. Their placement on dangerous curves or in front of bodies of water can turn a deadly accident into a routine fender bender. Unfortunately, guardrails cannot be on every section of road. Local and state government agencies are only obligated to place them where they can prevent foreseeable accidents from happening. But, some situations are nearly impossible to predict, especially in cases where the vehicle was not following the road for a long period of time before the accident. With the help of an excellent attorney, St. Charles Parish was able to avoid liability to an injured driver after one of these unpredictable situations.

Dustin Schexnayder, Sr. was driving himself to work on Bonnet Carre Spillway Road (“Spillway Road”) in St. Charles Parish. While driving westbound, Mr. Schexnayder drove off Spillway Road and traveled about 126 feet in the grass next to the road. His car then went airborne and ran into a rock embankment. He could not remember any details of the accident and no witnesses were present.

The accident caused Mr. Schexnayder to become mentally incompetent. Therefore, he was represented by a curator in eventual lawsuit brought against St. Charles Parish, the St. Charles Parish President, the St. Charles Parish Council, the State of Louisiana, The United States Army Corps of Engineers (“USCOE”), and the United States of America. In the lawsuit, Mr. Schexnayder claimed that roads were missing proper shoulders and guardrails and because of the lack of these safety measures his accident turned out worse than it should have. Specifically, Mr. Schexnayder pointed to USCOE request for guardrails in the area of the accident which was denied by Parish employees.

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clearing-desolation-destruction-4451-1024x683Accidents can come from the most unexpected of circumstances and result in life altering consequences. Here, a man suffered severe injuries while driving to the local convenience store to purchase a cup of coffee, when a rotten tree from a resident’s yard fell and struck his vehicle.

The victim, 52-year-old Rodney Caldwell, filed a lawsuit against property owner Michael Jones and ANPAC Insurance Company, Jones’ insurance provider. The lawsuit was filed in Lincoln Parish. Caldwell was awarded special and general damages totaling $12,186. However, after being awarded damages for his claim, Caldwell appealed the amount he received in general damages, which totaled $4,000, claiming that the amount was not sufficient compensation for his injuries. On appeal, the Second Circuit Court of Appeals agreed to increase Caldwell’s amount in general damages to $15,000. 

Ordinarily, when assessing damages, the judge or jury have discretion to determine what is a sufficient amount to award the victim. La C.C. art. 2324.1. When determining general damages, the court takes into account the victim’s pain and suffering, loss of physical enjoyment, and other losses of life or lifestyle which cannot be definitively measured in monetary value. McGee v. A C and S, Inc., 933 So. 2d 770 (La. 2006). 

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45-Picutre-05-22-2019-1024x512Most people are extra cautious when driving near an 18-wheeler truck, but accidents can happen in ways a person cannot always anticipate. That is what happened to Evelyn J. Menard in Baton Rouge in May of 2004, when an 18-wheeler in front of her snagged a wire above the road, which snapped and hit her car. Evelyn’s car went into a spin, and the truck did not stop. As a result, Evelyn had serious injuries to her lower back 

Because neither the owner nor the operator of the truck were identified, Evelyn filed a lawsuit against several defendants associated with the wire, including the Parish of East Baton Rouge, communications companies, contracting companies, her insurance company, and the Louisiana Department of Transportation and Development. This is a strategy that is often used in personal injury cases, because in many cases, the fault for an accident cannot be attributed to a single party, and multiple parties can be liable for an injury. In these situations, plaintiffs join multiple defendants in a single suit, and the court will decide whether, based on the facts, the lawsuit should proceed or whether some of these defendants should be dismissed. In this case, the other defendants were dismissed, except for the Louisiana Department of Transportation and Development (“The Department”).

The case went to trial in 2015. The jury found the Louisiana Department of Transportation and Development 100% liable for Evelyn’s injuries. The jury awarded Evelyn a total of $1,642,000, including $500,000 for past and future physical pain and suffering, $150,000 for past and future mental pain and suffering, $327,000 for past medical expenses, $100,000 for future medical expenses, $165,000 for lost wages, $330,000 for future loss of wages, and $70,000 for loss of enjoyment of life. The court signed a final judgment on March 12, 2015 and awarded Evelyn a total of $1,322,000 in damages, including the full $500,000 for general damages. The defendant made a timely filing of judgement notwithstanding the verdict (“JNOV”), which allows a judge to overrule a jury’s decision. However, the court did not grant it.  

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israel-sundseth-vOX1_FoSPzQ-unsplash-1024x681After a road accident, especially when someone is injured, there is an expectation that someone was at fault. We may even blame the weather, the car, or an innocent animal passing by. But in law, attaching fault is not always as straight forward as we may think. For example, what happens if you are crossing a street that has faulty lights at an intersection and you are hit by a car? Would it be too bad of an idea to blame the faulty lights? What if the streetlights are maintained by a company that has entered into a contract with a local authority promising to ensure that lights are properly taken care of all the time? Could you then sue the company for its failure to maintain the streetlights? These issues came for determination in the Fifth Circuit Court of Appeal in Louisiana.

In August of 2014, Eric Girtley filed a lawsuit for personal injuries he sustained when he was struck, in his wheelchair, by a vehicle while crossing an intersection on 31st Street, Loyola Boulevard in Kenner, Louisiana. In the lawsuit, he alleged that the streetlights, which were located near the scene of the accident, were not properly functioning as they failed to illuminate the area. In the lawsuit, he named Entergy Louisiana LLC as one of the defendants. He alleged that Entergy was negligent in that it failed to properly inspect the lights and failed to repair the lights even though they were aware that they were defective. In response, Entergy filed a peremptory exception of no cause of action alleging that it did not owe Eric Girtley a duty to maintain the lights and that he did not have any rights by which he could claim a benefit in the contract for the maintenance of the lights between Entergy and Jefferson Parish. 

In Louisiana, if the law does not support the facts alleged by the plaintiff the defendant may dismiss the lawsuit by filing a peremptory exception of no cause of action. This rule questions the legal basis for the plaintiff’s claim. When determining this issue, the court tries to address such questions as does the plaintiff have an injury? Is there any legal relationship between the two parties? Is there a remedy available in law for the action? The function of a peremptory exception of no cause of action is to test the legal sufficiency of the lawsuit, which is done by determining if the law affords a remedy on the facts alleged. See Wright v. La. Power & Light, 951 So. 2d 1058 (La. 2007). 

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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.

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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.

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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.

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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)

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