Car Accident

September 1, 2010

Understanding the Law: Bystander Recovery After Tragedy Strikes

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:

August 28, 2010

Juries Afforded Much Discretion in Awarding Tort Damages From Car Accidents

by Berniard Law Firm

On April 17, 1968, Doris Brantley of Oak Grove, Louisiana was involved in an automobile accident when her car struck by a vehicle driven by Albert McKee. Mrs. Brantley was immediately taken to a local hospital and was released the next day. Her painful injuries included numerous abrasions, bruises, and lacerations, as well as trauma to her neck, back, and knees. She received care from a general practitioner for several weeks following the collision and then sought treatment from an orthopedic surgeon in Greenville, Mississippi.

At the time of the crash, Mrs. Brantley was 40 years old and in good health. She worked at the Lamont Glove Factory in Oak Grove as an inspector, where she earned $1.92 per hour. The trial court awarded Mrs. Brantley $5,000 for her personal injuries resulting from the accident, and an additional $1,313.85 for her lost wages and expenses she incurred in repairing her car. Mr. McKee, the other driver, appealed the judgment on the sole basis that the damages awarded by the trial court were excessive.

The principle that “much discretion” must be afforded the trial judge or jury in awarding tort damages has been a part of the Louisiana Civil Code since 1825. (Currently, the provision resides in Section 3 of Article 1934.) According to William A. Sherwood, who wrote about this matter in a note that appeared in the Tulane Law Review in 1974, its inclusion in the Code

August 24, 2010

Choose Your Traffic Accident Reconstruction Expert Carefully When Suing For Car Accident

by Berniard Law Firm

As discussed in the last post on the topic of traffic accident reconstruction, experts can play a pivotal role in the outcome of a case. Many accident victims can benefit from the opinion of reconstruction experts in establishing the at-fault party in a crash. Key to achieving this result is officially qualifying the reconstruction expert in the eyes of the court. Though a person may represent himself as qualified to analyze traffic accidents and offer an opinion on its cause, it may be quite another matter for the court to accept the opinion and permit the jury to consider the expert’s testimony.

The case Wilson v. Woods, 163 F.3d 935 (5th Cir. 1999) helps to explain the trial court’s role in evaluating the qualifications of a self-proclaimed accident reconstruction expert. The case concerned a car accident in which the defendant, driving a tractor-trailer, collided with the defendant’s car at an intersection in Yazoo City, Miss. The plaintiff claimed that the defendant was negligent because at the time of the crash he was operating his truck at a speed in excess of the posted limit of 55 MPH. In support of this theory, the plaintiff sought during her jury trial to qualify that her witness, Mr. Rosenhan, was an expert in accident reconstruction. Rosenhan was to testify, based on his review of the police’s accident report, that he calculated that the defendant’s truck was traveling 63 MPH when the collision occurred. The defendant objected, arguing that Rosenhan’s qualifications were insufficient to form the basis of an expert opinion on the crash. After substantial analysis, the district (trial) court refused to qualify Rosenhan as an expert witness and did not allow the jury to hear his testimony. When the jury delivered a verdict for the defendant after the plaintiff could not otherwise prove her speeding theory and establish the defendant’s negligence, the plaintiff appealed on the basis that the trial court’s exclusion of Rosenhan’s testimony was improper.

The appellate court recalled its prior decision in Watkins v. Telsmith, Inc. in which the wide discretion district courts are granted when deciding whether expert testimony is admissible was determined. This discretion is only overturned when its’ exercise was “manifestly erroneous”. 121 F.3d 984, 988 (5th Cir.1997). The court also referenced the Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which the Court stated that a district court’s function was to act as gatekeepers, only permitted expert testimony that is both reliable and relevent to be presented to the jury. When the appellate court considered the matter of Rosenhan’s expertise as analyzed by the district court, it found he had earned a bachelor of science degree and a masters degree in mechanical engineering. Rosenhan had experience teaching mechanical and industrial engineering at vocational schools and colleges. During his 25-year consulting career, Rosenhan had worked in fire investigation and reconstruction; Rosenhan testified that his specialty had only recently changed to car accident reconstruction.

August 22, 2010

St. Landry Parish Car Crash Expert’s Duties Help Police Understand How Accidents Happen

by Berniard Law Firm

In 2010 the St. Landry Sheriff’s Department welcomed a traffic accident reconstruction expert among its team as Captain Brian Hundley successfully completed a course on accident investigation and reconstruction. Especially in fatal accidents or in cases where there are no eye-witnesses, car crash experts can play a pivotal role in determining the most probable explanation for how the accident occurred.

In an investigation, a crash reconstruction expert must rely heavily on evidence gathered by the police at the accident scene. Although the expert can consider a variety of physical evidence, including the road layout and traffic markings, tire skid marks, and the damaged vehicles themselves that remain after the occurrence of the crash, much of the expert’s analysis must be based on observations made after the event. For this reason, it is critical that police officers who respond to an accident scene are extremely diligent in preserving and recording evidence once the medical needs of the victims are addressed.

The reconstruction expert will review photographs of the roadway and vehicles and obtain detailed measurements of the site in order to create a diagram of the situation. This diagram is important for establishing the vehicles’ positions both before and after the impact.

August 18, 2010

Hit-and-run Incident Illustrates Civil and Criminal Trial Issues

by Berniard Law Firm

Fleeing the scene of an escalating argument, a driver injured two persons when he ran over them with his car. The incident happened in Minden on February 7, as reported by Jana Ryan. Local authorities believed the victims were merely bystanders and were not part of the argument. After brandishing a gun, the driver attempted to leave in his car, and he ran over the bystanders while trying to back away. The driver was later arrested on criminal charges of aggravated assault and aggravated battery stemming from the incident.

Events like this one often bring criminal charges against the person who injures another. However, the driver in this case may also be civilly liable to the injured victims; that is, in addition any criminal conviction, a court can hold him financially responsible for the injuries that resulted from his actions. To be held civilly, or financially, liable to a victim, generally a person’s actions must be the legal cause of the victim’s injury. The law does not even require that the person have intentionally injured a victim; a careless, or negligent, act may be sufficient to establish liability.

It is important to keep in mind, though, that criminal law and civil liability are administered very differently and that criminal convictions and civil remedies are distinct under Louisiana law. A conviction by a criminal court does not automatically ensure that a civil court will hold a convicted defendant financially liable for the injuries he caused. Nor will a person found innocent be guaranteed immunity from civil liability. Each type of court requires attorneys to establish different elements, and criminal courts require them to prove those elements with more certainty. This is true even if key words, such as “assault” and “battery,” seem to mean essentially the same thing in each court.

August 16, 2010

Dangerous Louisiana Road Conditions and the Damage Caused

by Berniard Law Firm

As reported on nola.com earlier this year, a $1.56 million project to build a 5.5 mile guardrail along Airline Drive is complete. The guardrail is a much needed addition, designed to prevent motorists from plunging into the canal, and is something that area residents have been calling for years.

The rail, from St. Rose to Norco has already stopped at least one vehicle from going into the canal. Around the beginning of 2010 a car hit the rail just east of Ormond Boulevard in Destrehan but didn’t go in.

Before the guardrail the area was the site of many deadly accidents over the years. In 2003 alone six people died in two accidents and one family in particular suffered a devastating loss.

August 14, 2010

Looking Back at Toyota Recall: Product Liability Explained

by Berniard Law Firm

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.

August 11, 2010

Toyota Has Reportedly Been Able to Duplicate Acceleration Problems

by Berniard Law Firm

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.

August 6, 2010

New Orleans Hit-and-Run Case Turns on Witness Testimony

by Berniard Law Firm

As most motorists are aware, Louisiana law requires that the driver of a vehicle involved in an accident must stop the vehicle at the scene, give his or her identity, and provide reasonable aid to anyone who may be injured as a result of the crash. La. R.S. 14:100. The failure to do so is often called a “hit and run” accident, and in many cases the accident victim has no way to track down the fleeing driver.

In Louisiana Farm Bureau Casualty Insurance Co. v. Hayden, No. 2010-CA-0015 (La. App. 4th Cir. 2010), the witness to a hit-and-run collision played a critical role in the resolution of the case. On February 18, 2007, William Dunham was driving his car in New Orleans near the intersection of Howard Avenue and Loyola Avenue. A silver Ford Taurus ran the red light at the intersection and hit Dunham’s car broadside. The driver of the Taurus continued on and fled the scene. Orelia Jones, who was riding in her sister’s car, happened to see the collision. Jones and her sister followed the Taurus until Jones was able to write down the car’s license plate number. She then returned to the scene of the accident and shared her information with the police.

The police traced the license plate number provided by Jones to a 2003 Ford Taurus owned by Amy Lips Hayden of Mandeville. Dunham’s insurance company, Louisiana Farm Bureau, sued Hayden for the damage to Dunham’s car in the accident.

July 23, 2010

Lafayette Case Provides Important Lesson on Peremptory Challenges and Proving Racially Based Jury Exclusion

by Berniard Law Firm

In a recent Court of Appeals decision, plaintiff Ryan George appealed a jury verdict that rejected his damage claim following his 2007 car accident in Lafayette. The Court of Appeals affirmed the jury’s decision and found that defendants did not improperly challenge jurors during the selection process while one of Mr. George’s challenges was deemed to be discriminatory.

Trials can be made or broken if the jury is sympathetic to one side or the other. This case shows how important it is for plaintiffs to have an experienced attorney involved in jury selection process. A good attorney will not only make the right decision about who should be struck from a jury via peremptory challenges, but will also be prepared to object to the other sides’ challenges if they are a pretext for discrimination while being able to provide a articulable non-race reason for excluding should one of their own challenges are questioned.

The accident occurred at the intersection of Simcoe Street and Evangeline Thurway in Lafaeyette when a vehicle driven by Horace McBride rear ended a vehicle driven by Richard Benoit, Jr. as Benoit was turning left. McBride was working for Helix Energy Solutions Group, Inc. and driving his employer’s vehicle. George was a passenger in Benoit’s vehicle and was injured, requiring extensive treatment.