Civil Matter

May 29, 2010

Iberville Parish Car Crash Explores Doctrine of Sudden Emergency

Under Louisiana law, the doctrine of sudden emergency is a defense available to a defendant who is confronted with a sudden and unexpected situation of danger and who responds as a reasonably prudent person would under the circumstances. The doctrine serves to limit the defendant’s liability even if it is later determined that he did not chose the ideal course of action in response to the sudden danger.

The Court of Appeal has expressed:

it is the settled jurisprudence of this state that a person is not obligated to exercise the same degree of care or judgment as is required under ordinary circumstances… A mistake of judgment or failure to adopt the best or wisest course for avoiding injury does not necessarily result in a finding of negligence. To contend otherwise is to attempt to exact hindsight instead of foresight from a motorist faced with a sudden emergency (Fouche v. St. Paul Fire & Marine Ins. Co., 153 So.2d 180 (La. App. 2d Cir. 1963).

May 28, 2010

Bridge Accident Case Shows Value of Litigation Discovery for Plaintiff

by Berniard Law Firm

The issue of whether a defendant breached a duty of care owed to the plaintiff in a negligence case is settled by examining the events that occurred in connection with the accident. Unfortunately for many plaintiffs, specific details about the defendant’s conduct may not be readily available and, absent some legally enforceable demand, a defendant is unlikely to volunteer any self-incriminating information that may help the plaintiff build his negligence case.

Louisiana civil procedure provides an avenue for a plaintiff to obtain needed information about the defendant’s conduct through “discovery” in litigation. Discovery is the phase of a law suit during which the parties can request information from each other, usually in the form of interrogatories (written questions) and requests for documents. The parties can also schedule depositions where witnesses are interviewed. Although there are some exceptions to the types of materials that must be exchanged through discovery, the intent is to level the playing field with respect to information about the case so that the parties can adequately prepare for trial.

The case of Simoneaux v. State of Louisiana Department of Highways, 106 So. 2d 742 (La. App. 1st Cir. 1958), illustrates the essential role that evidence obtained through discovery can play for the plaintiff in a negligence case. On the evening of August 25, 1955, Clement J. Simoneaux was driving in his car with his wife and her friend on La. Hwy. 1 in Plaquemine, Iberville Parish. At the point where Hwy. 1 crosses the Bayou Plaquemine, there was a lift span bridge–a drawbridge in which the center section would lift vertically, as one piece, to permit boats to pass below. On the evening in question, the lift span, after being raised for a passing boat, was returned to its original position. However, at the south end of the opening, the span did not seat itself fully. Instead, the end of the span stopped some distance above the level of the roadway.

May 27, 2010

Two Interstate Accidents Cause Fatalities in St. John Baptist, Tangipahoa Parishes

by Berniard Law Firm

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.

May 26, 2010

Iberville Parish Car Crash Shows Court’s Role in Apportioning Fault

by Berniard Law Firm

Determining fault is central to the resolution of every negligence case. Typically, the plaintiff alleges the defendant’s fault, and it is up to the court to determine whether the plaintiff has carried this burden. In the event that more than just one party was responsible for causing a particular accident, it is up to the court to “apportion” fault. That is, the court must decide how much each party contributed to the overall situation, and assign them responsibility for the appropriate percentage of the damages.

In Cashio v. Department of Transportation, 518 So.2d 1063 (La. Ct. App. 1st Cir. 1987), the court undertook this type of apportionment. Around noon on March 14, 1984, Jo-Louise Cashio was driving her 1984 Datsun 260-Z north on Louisiana Highway 77 in Iberville Parish. Passing the shop of a friend, Delores Nall, Cashio beeped her horn and waved. Seconds later, Nall saw Cashio’s car leave the paved portion of the highway in a cloud of dust. Upon re-entering the road, Cashio lost control of her car, crossed the center line, and ran into a ditch. Cashio’s car flipped and left her with severe injuries. Cashio filed suit against the State of Louisiana through the Department of Transportation and Development (DOTD) alleging that the shoulder of the road was defective. Cashio claimed that the shoulder was below the minimum design standard because it was too narrow and was unsafe because of its deep downward slope toward the ditch.

At trial, the court heard testimony from a number of expert witnesses on the road’s design. Relying on well-settled law that “the DOTD is under a duty to maintain the highways and shoulders in a reasonably safe condition,” the trial judge determined that the DOTD was 100 percent at fault for Cashio’s accident and awarded her approximately $111,000 in damages.

May 25, 2010

Slip-and-Fall at Farmerville Grocery Store Shows Plaintiff’s Burden in Negligence Suit

by Berniard Law Firm

Under Louisiana law, store owners are required to exercise reasonable care to keep their stores free from conditions that could be hazardous to customers and visitors. When a customer is injured while browsing the aisles, the merchant’s efforts to maintain a safe premises are often given great scrutiny. To win a negligence suit against a merchant for an injury that was due to an unsafe condition of the premises, the customer is required to prove the following three elements: (1) the condition presented an unreasonable and foreseeable risk of harm to the customer; (2) the merchant either created or had notice of the unsafe condition; and (3) the merchant failed to exercise reasonable care to remedy the condition.

On the element of notice, the customer/plaintiff has two options. She can show “actual notice,” which requires her to prove that the merchant had specific knowledge of the dangerous condition (usually occurring when the condition had been previously reported to a store employee). Alternatively, the plaintiff can rely on “constructive notice” if she can show that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care (normally proven by showing that the store failed to regularly clean/go through the store looking for problems).

The analysis of the constructive notice issue was of central importance in the case of Gregory v. Brookshire Grocery Co., No. 45,070 (Ct. of App. La., 2d Cir., 2010). On October 21, 2003, Lena Gregory entered the Brookshire Grocery Store in Farmerville. Just prior to her arrival, a young girl had become ill and vomited in several places around the store as she attempted to find the restroom. Gregory noticed the vomit on the floor near the entrance to the store and carefully made her way around it. Approximately 15 minutes later, as Brookshire employees cleaned up in other areas of the store, Gregory slipped and fell on a spot of a “clear substance about the size of a baseball.” It was unknown what the substance was, whether it was related to the girl’s sickness, how it got on the floor, or how long it had been there.

May 24, 2010

Shreveport Slip and Fall Illustrates Law’s Approach to Liability

by Berniard Law Firm

If you have slipped and fallen in a Louisiana store, you may not realize you are not alone. What’s more, you might not understand that you may have the legal rights to make a claim against the store for the incident. Just recently a lawsuit was filed in western Louisiana by a customer of a store who injured herself on the premise. These types of cases are classically known as “slip and fall” case. The victim in this case, Leona Jordan, was shopping at Walmart when she slipped on water that had accumulated on the floor and fell. Jordan was injured and hurt her hip, back, knee, and leg.

These types of accidents are far from rare. In fact, earlier this month Ellen Hickman injured herself at a Louisiana Dollar General store. She slipped and fell on a small plastic toy. As a result of the accident, she hurt her lower back, back of her head, ankle, and right leg.

If you have had a similar experience, you should know that Louisiana has laws in place to protect you.

May 23, 2010

Federal Judge Finds Oil Spill Volunteers Cannot be Forced to Sign Away Their Legal Rights

by Berniard Law Firm

Despite BP’s best efforts, clean-up volunteers will be able to file legal claims against the oil company if they arise. BP tried to force volunteer responders to promise they will not file claims but a federal judge has determined that will not be allowed. George Barisich, President of the United Commercial Fisherman’s Association in Louisiana asked for an emergency restraining order against BP, comparing the request to:

Demanding that a person running into their own burning home sign a release limiting or giving up their claims against the arsonist who caused the fire…At best it is an ill-conceived approach to the crisis at hand and has the unforeseen consequences of causing further–and irreparable–injury to the citizens of Louisiana. At worse, it is a dastardly effort to compromise the rights of those citizens when they are the most vulnerable.

U.S. District Judge Helen G. Berrigan agreed with Barisich and granted the restraining order, finding that the agreements are unconscionable and that any agreements that had already been signed are null and void.

May 23, 2010

Court of Appeals Decision Shows How to Prove Medical Malpractice in Louisiana (and how not to)

by Berniard Law Firm

A recent Louisiana Court of Appeals decision does a good job of explaining the elements of a medical malpractice claim and some pitfalls that might be encountered along the way.

In this case, Jessica Parker of Beau Bridge filed a suit against University Medical Center after she underwent two gall bladder surgeries at the Lafayette hospital in 2002 and 2003. The first surgery was for the removal of Parker’s gall bladder and stones in her common bile duct in November of 2002. In January of 2003 she returned to the hospital complaining of four days of flank pain, nausea, vomiting, and a “foreign body” around the incision site. She was admitted and a second surgery was performed to remove several small stones.

As required by Louisiana law before a medical malpractice case can be filed, Parker requested the formation of a medical review panel, complaining her surgery was botched and two metal clips were left inside her bile duct and caused an obstruction. In June 2005 the panel entered an opinion in favor of the hospital finding the appropriate standard of care was not breached. Following the unfavorable panel decision, Parker filed a lawsuit. The hospital moved for summary judgment and argued that because of the panel opinion and the fact that Parker did not use an expert witness to prove the applicable standard of care and breach there was no issue of material fact as to whether they were entitled to judgment as a matter of law. In opposition, Parker submitted uncertified and incomplete copies of her medical records. Following a hearing the motion for summary judgment was denied but the court instructed Parker that if no evidence was submitted they would dismiss the case. Parker did not appear at a re-hearing in September 2009 and her claims were dismissed and the hospital’s motion was granted. The Court of Appeals affirmed the trial court decision.

May 22, 2010

Discretion Given to Jury’s Award of Damages – Couple in Mid-70s Involved in Three Auto Accidents in Three and a Half Weeks

by Berniard Law Firm

Louisiana’s Supreme Court, in an April 2007 opinion, expounded on the vast discretion an appellate court is to give to a jury’s verdict on review.

From December 2000 to January 2001, Thurman and Rosemary Kaiser, a married couple in their mid-70s, were involved in three auto accidents – one in Jefferson Parish and two in Orleans Parish. Claims the couple may have had regarding the first and third accidents were settled out of court. However, regarding the second accident, which occurred on January 15, 2001, when the couple’s vehicle was rear-ended by Harry Hardin, the couple filed suit. Prior to trial, Hardin stipulated to liability. He later testified that his vehicle hydroplaned into the back of the plaintiffs’ vehicle, causing the accident. The case proceeded to a jury trial on the issue of damages.

After testimony from plaintiffs and defendant, Dr. Donald French, an orthopedic surgeon who treated both of the Kaisers, Paul Van Hoose, a claim representative of State Farm, Dr. Wendy Jamison, a neurologist who treated Mrs. Kaiser, and Dr. Jeffrey Sketchler, an orthopedic surgeon who treated both of the Kaisers, the jury rendered a verdict in favor of the plaintiffs, awarding Mr. Kaiser $6,500 in total damages, including damages for past and future medical expenses as well as general damages, and awarding Mrs. Kaiser $20,000 in total damages for past and future medical expenses as well as general damages.

May 21, 2010

BP’s Estimates for Oil Leak Significantly Lower than Real Amount

by Berniard Law Firm

According to an AP report, BP yesterday admitted that more oil than it originally estimated is leaking into the Gulf. This news, coming roughly one month after the Deepwater Horizon oil rig exploded and sank, is heightening Gulf Coast residents’ worries about the amount of damage likely to occur. A spokesman for BP, Mark Proegler, said that efforts over the weekend to insert a tube into the leaking pipe were successful, and that the tube is now siphoning off 210,000 gallons of oil per day. That figure is more than the total amount of oil BP and the U.S. Coast Guard originally estimated was leaking from the well, and it is clear that the tube is not capturing all the escaping oil. Mr. Proegler declined to estimate how much oil is still spewing into the Gulf, but some scientists who have viewed the underwater videos of the leak have suggested it could be as much as ten times the official estimate.

Meanwhile, crude oil began washing into the marshes on the state’s southeastern tip and the Breton National Wildlife Refuge, where scientists believe oil has killed some rare birds that reside there. “This is the heavy oil that everyone’s been fearing that is here now,” Gov. Bobby Jindal said during a boat tour of the wetlands. According to the National Oceanic and Atmospheric Administration, as of May 17, 29 miles of Louisiana’s coastline had already seen oil.

Adding to concerns over BP’s handling of the disaster are reports of the company’s efforts to limit the public’s view of fouled beaches in Louisiana. CBS news reports when journalists attempted on Tuesday to visit an oil-covered beach in South Pass, they were turned away by BP contractors and two U.S. Coast Guard officers aboard a boat. The officers threatened to arrest the reporters, even though the government had not closed the beach to the public. The reporters captured video of one of the officers saying, “This is [sic] BP’s rules, not ours.”