Articles Posted in Car Accident

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Accidents are a common occurrence for automobile drivers. In fact, in 2009, there were 73,900 injuries caused by automobile accidents in the state of Louisiana. However, when one is injured in such an accident, liability is often difficult to assign. In other words, it takes a fact-finder to determine who is at fault for the accident and who is liable for damages incurred by any injured party. In a recent Louisiana court case, a passing motorist was found to be 100% liable for injuries sustained by an individual while the other motorist involved in the accident was not liable for payment of any damages.

On August 18, 1999, William Boyd was injured in a motor vehicle accident that occurred on Louisiana Highway 14 in Jefferson Davis Parish. Boyd, who was an inmate assigned to highway clean-up at the time of the accident, was a passenger in the prison van driven by Joseph Deville. A sixteen-foot trailer, used to carry tools and supplies needed for the work detail was attached to the rear of the prison van; also, a dump truck followed the van. The driver of the prison van was in search of a clear spot on Highway 14 to pull over and allow the inmates to eat lunch. Mr. Deville located a clear, shady spot on the left of the Highway and, as the prison van began to exit to the left, a passing car driven by Rosalinda Broussard hit the rear left side of the van. As a result of the accident, Mr. Boyd sustained injuries and brought suit against Mr. Deville, Wackenhut prison facility, Ms. Broussard and the insurance companies for the parties. Before trial, Mr. Boyd settled his claims against Ms. Broussard and her insurer. However, he proceeded with his claims against the three remaining defendants arguing that Mr. Deville began to make his left turn well after Ms. Broussard began her passing maneuver. In the bench trial, the trial judge found Ms. Broussard to be 100% liable for the injuries and dismissed the case against the other defendants. This decision was upheld by the Court of Appeals.

In order to reverse a trial court’s findings, “a reasonable factual basis [must] not exist for the finding of the trial court” and “the record establishes that the finding is not clearly wrong.” Otherwise, the decision would be reversed. When imposing liability for an automobile accident, a plaintiff must establish that the defendant owed a duty to the plaintiff to exercise reasonable care while driving on the road and that duty was breached by failing to act like the average reasonably motorist. This failure must have proximately caused the plaintiff’s damages. While duty and breach are questions of law and determined by the court, causation and damages are questions left for the fact-finder to determine. In Louisiana, courts have found that allocating fault “is not an exact science nor is it a search for a precise ration. Instead, the courts must determine if the “allocated fault falls within a certain range that does not violate the manifest error rule. While finding that Mr. Deville was not at fault for the accident, the court quoted a Louisiana statute, which provides specific instruction for motorists in the left lane attempting to pass other vehicles, entitled “Limitations for passing on the left.” Since Ms. Broussard did not comply with this statute and Mr. Deville used his turn signal and began to turn before Ms. Broussard began her passing maneuver, she was found to be solely responsible for the accident.

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In numerous prior posts, we have explored how critical expert testimony often is in determining the outcome of a negligence trial. Although experts can play a pivotal role in helping a plaintiff build his case, they do present some limitations. Typically, expert witnesses are required to render an opinion based on the information that they or someone else (e.g., a police officer) gathered after the fact; this can mean that not all useful evidence is available, and may call for some level of educated speculation. Also, practically speaking, it can be expensive for a plaintiff to retain the services of an expert, especially when the value of the claim is not particularly substantial. It follows then that often a plaintiff must rely on non-expert, or “lay,” witnesses at trial. Commonly, lay witnesses are recruited bystanders who happened to observe the incident which gave rise to the plaintiff’s claim. Although lay witnesses are somewhat limited in the types of opinions they can offer in testimony, their input is often extremely valuable for a plaintiff.

In the recent case Mitchell v. Roy, the Louisiana Court of Appeals examined the handling of important lay witness testimony by the trial court. In March of 2008, Darion Mitchell, age 10, was riding his bicycle on 8th Avenue between 9th and 10th Streets in Lake Charles when he veered into the path of a Chevrolet minivan driven by Albert Roy, Jr. Mitchell, who was not wearing a helmet, was thrown onto the hood of the van and struck the windshield. He was transported by ambulance to Christus St. Patrick’s Hospital where he underwent a series of tests that revealed he suffered some minor soft tissue swelling but no brkoen bones. Mitchell was diagnosed with a head injury and scalp lacerations, and he received stitches before being discharged from the hospital later the same day. Within a few months, Mitchell’s mother filed suit against Roy, alleging that Roy had negligently caused the accident by driving in excess of the posted speed limit, by failing to keep a proper lookout, and by failing to take care to avoid the collision. A bench trial was held. One of Mitchell’s key witnesses was Angela Dodd, a neighborhood resident who happened to be sitting on her front porch at the time the accident occurred. Dodd offered testimony about the speed of Roy’s van: she estimated that Roy was driving between 35 and 40 MPH. This estimate was based on Dodd’s prior experience operating her own vehicle “at various speeds” and the fact that Roy’s vehicle “kicked up dust” on the street as it approached Mitchell. The trial resulted in a finding that Roy’s negligence was the sole cause of the collision, a verdict in Mitchell’s favor, and an award of damages. Roy appealed, citing as error, among other things, the trial court’s allowing Dodd to offer a lay opinion as to the speed of Roy’s vehicle.

The Third Circuit addressed this enumeration of error by first reviewing the standard in Louisiana for assessing the admissibility of a lay witness’s opinion testimony. The state Code of Evidence in Article 701 provides that such testimony is limited to opinions which are (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of her testimony or the determination of a fact in issue. Put another way, a lay witness is permitted to draw reasonable inferences from her personal observations, so long as she also explains what those observations were. As a general rule, when reviewing a trial court’s admission of lay opinion testimony, an appellate court must ask whether the testimony was an improper speculative opinion or simply an inference drawn from the witness’s observations and, if erroneously admitted, whether the testimony was so prejudicial as to constitute error that should be reversed. The court noted that in overruling Roy’s objections to Dodd’s testimony, the trial court stated that it would “take into consideration that [Dodd] is not an expert on speed” and that it would consider her opinion “in the context of just a lay impression.” After reviewing the record of Dodd’s “compelling” testimony about what she observed and how she arrived at her speed estimate, the court determined it was “satisfied that the trial court properly allowed Dodd to testify as to the inferences she drew based upon her personal observations, [and] that the trial court gave the proper weight to Dodd’s opinion testimony.” Furthermore, the court deemed the opinion, even if admitted in error, insufficiently prejudicial to Roy so as to warrant reversal.

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

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

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

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According to Houma Today, a 17-year-old boy from Cut Off was killed on October 22nd when the car he was riding in struck a utility pole. The boy, Edward Domingue, and his 15-year-old girlfriend were going to pick up pizza and movies when she lost control of the vehicle. Questions remain regarding why the girl was driving since she did not have a driver’s license. Further, the girl’s mother and owner of the vehicle, Gillian Reynolds, adamantly stated that she would not allow her daughter to drive. While the facts are still not clear, civil liability for the accident and Domingue’s death are also still up in the air.

Louisiana Revised Statute 32:52 states that no person shall operate a vehicle or allow another person to operate a vehicle owned or controlled by him if the driver is unlicensed. However, the simple fact that doing so is a statutory violation does not necessarily imply that the owner, or the unlicensed driver, was negligent. In Enlow v. Blaney, the Louisiana Third Circuit held that even though a 14-year-old was not licensed to drive, the fact that the vehicle’s owner allowed her to drive without a license was “immaterial and irrelevant” to the issue of negligence where her “conduct in driving without a license was not a cause-in-fact of the accident.” Following its rationale in Enlow, the Third Circuit ruled that even when the owner allows an unlicensed minor to drive her vehicle, she will not be liable for a resulting accident where evidence suggests that the minor was competent to drive and the fact the driver was unlicensed is not the cause-in-fact of the accident.

However, under general common law principles, if the owner knowingly allows a person who is incompetent to drive, such as by repeated instances of negligent or reckless conduct, the owner may be liable for negligence. This usually requires that the incompetent driver be “on a mission” for the owner, acting as the owner’s agent or employee, or the owner is negligent for entrusting his vehicle to the incompetent driver. In order to establish negligent entrustment, a plaintiff must show that the vehicle’s owner knew or should have known that the borrower is incompetent to drive. One case of particular interest is the 1993 case of Jones v. Western Preferred Casualty Co. In that case, the Louisiana First Circuit found that a 19-year-old vehicle owner did not negligently entrust his car to a 13-year-old where the 13-year-old had only driven a few times before, had been drinking, and the 19-year-old had never met the 13-year-old before that day.

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On the day after Thanksgiving in 2003, plaintiff Nicol Hannie’s vehicle was struck by another vehicle driven by defendant Ray Guidry in LaFayette, Louisiana. Due to the holiday shopping sales offered that day, traffic was very heavy. Hannie, who had just finished eating at a restaurant, attempted to make a left hand turn onto a five lane roadway. The middle lane of the roadway was a turning lane. Because traffic was completely backed up in the two travel lanes immediately closest to Hannie, several cars in those lanes graciously created a space for Hannie to traverse and waved him through. As Hannie cautiously passed through the space created in the immediate two lanes, he inched onto the turning lane to complete his left hand turn. However, as soon as he began to pass through the turning lane in order to merge onto the distant travel lanes, he was struck by Guidry, who was allegedly using the turning lane as a passing lane and also traveling at a high rate of speed.

At trial, the district court agreed that Guidry was impermissibly using the turning lane as a passing lane. They reached this conclusion by noting that Guidry’s intended turn-off was nearly 700 feet away from the scene of the collision, and he could have stayed in the inside travel lane several hundred feet further before entering the turning lane. Furthermore, the high rate of speed Guidry was driving, as witnessed by others, tended to show that Guidry may have been impatient and did not want to remain in the travel lanes before commencing his left handed turn in the turn lane. Accordingly, the district court held Guidry to be 100% at fault for Hannie’s resulting injuries.

Dissatisfied with the verdict, Guidry appealed to the Third Circuit Court of Appeals of Louisiana. Guidry denied all fault and contended the Court of Appeals should review the district court’s finding under a de novo standard of review.

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On the evening of August 2, 2005, Latiffany Dunn slowed her car as she approached the intersection of Pearl and Washington Streets in Homer, Louisiana. As she came to a stop, a vehicle driven by Latonya Harris pulled up beside Dunn’s vehicle. Shatara Harris, Latonya’s sister, was a passenger in Latonya’s vehicle. Shatara got out of the car and approached Latiffany’s vehicle. The two women argued, and Shatara took a swing at Latiffany. As Shatara walked back to Latonya’s vehicle, Latiffany drove off and then circled back. As it passed by, Latiffany’s car clipped the open passenger door of Latonya’s vehicle. Shatara, who was attempting to get into the car at the same time, was injured when the door slammed closed against her. Latiffany did not stop her car, but instead drove to the Claiborne Parish Sheriff’s Department where she filed a report about the incident. A sheriff’s deputy interviewed Latiffany, transported her to the Homer Police Station, and then arrested her on a charge of aggravated second degree battery. Latiffany later pled guilty to simple battery. Shatara filed suit against Latiffany and her auto insurance carrier, U.S. Agencies Casualty Insurance Company, Inc. for damages arising from her injuries. U.S. Agencies filed a motion for summary judgment on the grounds that Latiffany intentionally struck Latonya’s vehicle, which would have excluded coverage by the terms of the policy. The trial court granted the motion and dismissed U.S. Agencies from the suit; Shatara appealed.

Under Louisiana law, an insurer may limit the coverage it provides by the terms of its policy, but the insurer has the burden of proving that the facts and circumstances support the exclusion. Furthermore, “a summary judgment declaring a lack of coverage under an insurance policy is not appropriate unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts, under which coverage could be provided.” The policy provision that U.S. Agencies pointed to excluded coverage for bodily injury or property damage “caused by an intentional act” or “caused … while engaged in the commission of a crime.” U.S. Agencies argued that Latiffany committed a crime (as established by her guilty plea to the battery charge) and also that she intentionally struck Latonya’s vehicle to injure Shatara.

With respect to the crime exclusion, the Second Circuit noted that the policy defined “crime” as “any felony or any action to flee from, evade or avoid arrest or detection by the police or other law enforcement agency” (emphasis added). The court concluded that the crime exception was inapplicable because Latiffany’s guilty plea to simple battery–a misdemeanor offense–did not fit the policy’s definition. Furthermore, the court explained that Latiffany’s guilty plea was not determinative as to her intent to strike Shatara. While a guilty plea from a criminal matter is admissible in a civil case, it is not conclusive evidence. The court acknowledged that “summary judgment is appropriate only if there is no factual dispute as to intent,” which, after reviewing the trial record, was “not the case here.” The court reasoned, “we cannot say as a matter of fact that the record shows [Latiffany] intended to hit either Latonya’s vehicle or Shatara with her vehicle… Even though Latiffany pled guilty to simple battery, we find that the record shows that a genuine issue of material fact exists as to whether Latiffany’s actions constituted an intentional act.” Accordingly, the court reversed the trial court’s granting of summary judgment and remanded the matter for further proceedings.

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The parties to a legal dispute, such as the payment of damages resulting from a car accident, can reach an agreement between themselves to resolve the matter and avoid litigation. This agreement, under which the parties “give and take” to arrive at a solution that is satisfactory to both, is called a compromise. Under Louisiana law, a compromise is considered a contract which must be made in writing, but there is no specific requirement as to the form. What is important is that a compromise resolves only those differences that the parties clearly intend to settle, which under general contract law requires a “meeting of the minds.”

Louisiana courts have recognized that a check can serve as a compromise if it recites that it is in full payment for all claims and the check is endorsed and deposited by the payee. But as the parties in the case American Century Casualty Company v. Sale, discovered, the courts will scrutinize a compromise based entirely on the endorsement and deposit of a check to ensure both parties’ objectives were in alignment.

On August 9, 2008, a car accident occurred between Dr. Charles F. Sale and Michelle Barett. Barrett, who was at fault, was driving a vehicle owned by her parents and insured by American Century Casualty Company (ACCC). A short time thereafter, an ACCC representative contacted Sale and discussed settlement. ACCC then mailed the following to Sale: a letter describing the steps that Sale would be required to take to resolve the claim; a settlement and release form; and a settlement check in the amount of $1,820. The enclosed letter directed Sale to sign the release and return it to ACCC, at which point ACCC would issue the settlement check. (Although the letter indicated that a settlement check would follow a “properly executed release,” ACCC erroneously mailed all three documents in the same envelope at the same time to Sale.) The front of the settlement check included the following text: “CHARLES SALE, ONLY: IN F/F SETTLMT/RELEASE OF ACCC/… BARRETT FROM ANY/ALL CLMS/LNS ON D/L 8/9/08, CLM 10995-9.” Sale, finding the amount of the settlement check insufficient, put the documents aside. Later, Sale’s wife discovered the check and deposited it without his knowledge. When Sale filed suit against Barrett and ACCC in August of 2009, ACCC filed a motion for summary judgment contending that Sale had previously compromised and released his claims against the company and Barrett by endorsing and depositing the settlement check issued to him. The trial judge granted summary judgment in ACCC’s favor and found that Sale had released all future personal injury claims. Sale appealed.

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In injury cases, general damages aim to compensate the victim for mental or physical pain and suffering, inconvenience, loss of quality of life, or other “intangibles.” Because these damages cannot easily be quantified in monetary terms, the jury (or judge in a bench trial) is tasked with assessing and awarding them. Louisiana courts have consistently held that “in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion.” Furthermore, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.”

Given this deferential standard, it is relatively rare for a jury’s award of damages to be modified on appeal. Nevertheless, the case of Case v. Shelter Insurance Company, No. 10-302 (La. App. 3d Cir. 2010) offers an example. On May 22, 2006, Patricia Case was driving her car on Oday Road in Loreauville. She came upon a tractor being driven slowly by Barry Frederick, an employee of Burt Oubre Farms. Just as Case pulled into the oncoming lane in an effort to pass the tractor, Frederick began to make a left-hand turn across her path without signaling. The vehicles collided approximately two feet across the center line of Oday Road. Following the accident, Case experienced severe back pain that ultimately required her to undergo a lumbar microdiskectomy and laminectomy in December of 2007. Case filed a lawsuit against Frederick, Oubre Farms, and the farm’s insurance carrier, Shelter Insurance Company. At trial, the jury found Case 25 percent and Frederick 75 percent comparatively negligent and awarded Case $49,999.98 in general damages. Case appealed this judgment, arguing that the jury improperly found her negligent and that the general damages award was insufficient.

On appeal, the Third Circuit quickly dispensed with Case’s argument concerning liability, holding that the jury did not commit “manifest error” in reaching its conclusion. Next, turning to the issue of the damages award, the court applied the abuse of discretion standard. The court examined the extent and severity of Case’s injuries and reviewed the various cases relied upon by Case to substantiate that the jury’s award was “abusively low.” Despite the good recovery Case had made by the time of the trial, the court nevertheless found that “when considering the record as a whole, we are required to find the award of $49,999.98 in general damages below the range of the jury’s discretion.” The court referred to its prior decision in Este v. State Farm Insurance Company, 676 So.2d 850 (La. App. 3d Cir. 1996), where it held that “an award of $75,000 was the lowest amount within the court’s discretion for the aggravation of a pre-existing, asymptomatic, spondylosis and bulging disk that did not warrant surgery.” Thus, the court reasoned, “[i]f a simple bulging disk and aggravation of an asymptomatic spondylosis can be awarded a minimum of $75,000 in general damages, an active herniation of a disk with surgical intervention warrants a general damage award of $100,000.00; any amount below that would be considered an abuse of the jury’s vast discretion.” Accordingly, the court amended the jury’s damages award to $100,000.

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According to state police, and reports in LaPlace’s L’Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

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When property is damaged through the fault of another, the law’s primary objective is to restore the property as nearly as possible to the state it was in before it was damaged. In Louisiana, it is well settled that the measure of the damage to property is the cost of restoring the property to its former condition. Thus, the courts historically have looked to the cost of restoration to determine the proper measure of damages. Rogers v. Commercial Union Ins. Co., 796 So.2d 862 (La. App. 3d Cir. 2001). This approach is particularly common with auto accidents, including the one that led to the case of Armstrong v. Safeway Insurance Company, No. 10-183 (La. App. 3d Cir. 2010).

On April 12, 2008, Richard Armstrong, an antique automobile restorer, was driving a 1982 Corvette in Pineville. The car, which to that point had never been in an accident and was in “mint” condition, was struck by a vehicle driven by Darrell Frost. Armstrong suffered minor injuries as a result of the accident, and the Corvette sustained damage to the front end. Armstrong and Frost’s insurance carrier, Safeway, settled Armstrong’s personal injury claims after Frost admitted fault for the incident. The parties were unable to reach a settlement over Armstrong’s property damage claims, however, and so Armstrong filed suit. At trial, Armstrong explained that the repairs to the Corvette totaled $7,007. This was in part due to the fact that Armstrong insisted upon complete replacement of several body parts due to the difficulty in making undetectable repairs to fiberglass. Armstrong asserted that the Corvette was a “well-maintained classic,” the value of which would have been negatively affected by any body imperfections. Safeway, who had offered Armstrong $3,503 for the repairs based on the opinion of its appraiser, argued that it was unreasonable for Armstrong to expect replacement parts when less costly repairs were possible. The trial judge disagreed with Safeway and awarded Armstrong $7,007 in property damages.

Safeway appealed. The Third Circuit noted that the parties’ repair experts at trial both agreed that Armstrong’s vehicle could have been repaired in several different ways and that Armstrong was reasonable in being concerned about the way that his vehicle was going to be repaired. The court concluded that “[b]ecause the trial court was presented with two permissible views of the evidence, its choice between them cannot be manifestly erroneous or clearly wrong.” Furthermore, Armstrong “carried his burden” of proving the amount he paid to restore the car to its pre-accident condition. The court commented, “Safeway simply argued that Armstrong’s vehicle could have been repaired in the manner recommended by its appraiser; they did not argue that any of the costs incurred by Armstrong to have his vehicle repaired in the manner that he chose were otherwise unreasonable.” Accordingly, the court found that the trial judge did not err in awarding Armstrong the full amount of his proven property damages, and affirmed the decision.

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