Articles Posted in Civil Matter

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In a 2000 case, the Court of Appeals made several rulings both reversing and affirming Judgments Notwithstanding the Verdict (JNOVs) that were granted after the trial of a very serious Jefferson Parish accident.

In October 1995 Michael Mashburn was driving east on 1-10 on the downslope of Bonnabel Boulevard, Jefferson Parish, when he lost control of his vehicle and struck the guardrail. He came to a stop blocking the left lane. Minutes later another car came over the overpass and struck Mashburn’s car. The second car was knocked across three lanes of traffic, struck the right guardrail, and came to rest blocking the right lane. The state police came to the scene. Within a couple of minutes of their arrival a motorcycle driven by Sean Schneider slid into another car stopped in the accident traffic. Schneider was thrown off and killed. About 100 feet back, another motorcyclist, Mendoza, was also involved in an accident and was seriously injured (requiring a partial leg amputation).

At trial, the jury granted judgment in favor of plaintiffs Mendoza and Schneider, (via his parents) and against Mashburn and his insurance company. Mashburn and the plaintiffs moved for JNOVs which were granted by the trial court. The JNOVs found the police officers liable for the motorcycle accidents for failing to properly secure the scene and warn drivers of potential danger and altered the damage awards to both Mendoza and Schneider. Upon appeal, the 5th Circuit Louisiana Court of Appeals reversed the JNOV with respect to police officer liability, affirmed with respect to damages awarded to Mendoza, and reduced damages awarded to Sean Schneider’s parents.

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In previous posts we have examined the important role of expert witnesses in litigation. As a general rule, the party who retains an expert witness is responsible for paying for the witness’s services.

The issue of expert witness fees was central to the case of case of Burns v. Apache Corp, 853 So. 2d 708 (La. Ct. of App., 2nd Cir. 2003), which was an appeal from a ruling by the Louisiana Office of Workers’ Compensation (OWC). Mr. Barry Burns was employed by Apache Corporation as an oil well pump technician in Shongaloo, Louisiana. On June 21, 2000, he was struck and killed by a moving part of the pump he was working on. His widow, Terry Burns, made a claim for workers’ compensation against Apache and also filed a tort action against Dodson Tye Machine Works, Inc., a third-party contractor who had also worked on the oil well.

After the accident, Apache began paying Ms. Burns $384 per week in workers’ compensation death benefits. Ms. Burns’s lawsuit proceeded to trial where a jury awarded her $45,324 in damages against Dodson.

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An “act of God” is an unusual, extraordinary, sudden, and unexpected manifestation of the forces of nature which man cannot resist, or prevent for that matter. Even something as commonplace as ice on a bridge can qualify. Three suits regarding a two-car accident on Natchitoches’ Ecore Bridge in 1990 gave Louisiana’s Third Circuit Court of Appeal an opportunity to discuss the doctrine of inevitable accident and the State’s duty to remedy the icy conditions.

The aforementioned early-morning ice on the Grand Ecore Bridge affected several motorists in January of 1990. Problems began between 5:30 and 6 a.m. when ice caused a woman to lose control of her car, hit a road sign, and come to rest facing the opposite direction that she was traveling. Shortly thereafter, a supervisor of the State’s Department of Transportation and Development (DOTD), Neil Bennett, came upon the accident while traveling on department business. Bennett stopped to see if the woman was injured, then proceeded down the highway to a roadside store where he called the Sheriff’s Office to report the accident. He then called the DOTD barn to request that a crew place sand on the bridge and returned to the bridge.

Minutes after Bennett returned, a Mack truck hit a patch of ice, jackknifed, and slid into an oncoming Pontiac. The driver of the car and his two passengers filed suit against the DOTD, the driver of the truck, his employer, his insurer, and the Louisiana Insurance Guaranty Association. The trial court dismissed all claims and the Third Circuit affirmed.

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Oftentimes, the most important question in an injury lawsuit is not “Can I recover?” Rather, the crucial questions involve whom to seek recovery from and where – i.e., in which court – to do that. Sometimes the answer lies simply in where the accident and injury occurred. However, as an older case from West Feliciana Parish indicates, proving that fact is not always as straightforward as it seems.

The case of Crum v. Southshore Railway Company, (230 So.2d 100 (1969)), revolves around the tragic drowning of John Floyd Crum. Mr. Crum was an employee of Southshore Railway Company. While working on a sand and gravel dredge, Crum fell into the water and drowned because he could not swim.Further, the boat on which he was working was not equipped with life-saving devices and was, generally speaking, poorly maintained.

From those facts, it would appear that Southshore would be legally responsible for the circumstances of Mr. Crum’s death. However, this was not the issue that this particular case focused. Rather, the important issue was whether the court had jurisdiction over the matter. The jurisdiction issue would be determined by whether the case fell under the federal statute known as the Jones Act (46 U.S.C. § 30101) or under Louisiana’s Workmen’s Compensation Act. The Jones Act permits injured seamen to recover damages from their employers for accidents that occur “on navigable waters.” Thus, if Mr. Crum’s accident happened on a navigable body of water, his estate could seek damages from Southshore under the Jones Act. Otherwise, Mr. Crum’s family and legal team would have to rely upon the state workers’ compensation program.

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Although it has been half a decade since the devastation caused by Hurricane Katrina, the dangers Louisiana residents face from both unruly weather and their insurance providers are far from over. A new study released Monday reveals that New Orleans is one of the gulf cities most at risk for hurricane related damage. The study, available here, also reveals that the damage done by Katrina was primarily attributable to storm surges.

A “storm surge” is simply the rise of water caused by a storm. Storm surge damage refers to the harms caused by the flooding that results from this rise of water. This type of damage is distinct from the wind damage that may also be associated with a massive storm. The difference between flood damage and wind damage is important for a few reasons.

Primarily, the difference is important to insurance providers and their willingness to cover a claim in the event of damage to a home or property. Oftentimes general home insurance traditionally does not cover flood damage. As a result, separate insurance to protect against flood damage commonly must be retained by a home owner in order to cover storm surge damage. This is important because when a catastrophic storm hits there is no way of knowing what specific aspect of the storm will cause the eventual damage to a property or home. If a homeowner has failed to secure flood insurance they must prove that the damage their home suffered was as a result of wind (and not the storm surge) to recover under their insurance policy.

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Leesville Bank not Liable for Wrongful Death: Louisiana Supreme Court Finds no Breach of Duty

At 1:30 a.m. on November 13, 1992 Jesse Pinsonneault left his job as assistant manager at a pizza parlor and went to deposit the daily receipts into the night deposit box at nearby Merchants & Farmers Bank & Trust Company in Leesville. Tragically, 23 year old Jesse never completed his task and was robbed, shot, and killed by two escaped convicts. Jesse’s parents James and Debra Mae Pinsonneault brought a wrongful death suit against the bank where they alleged that the bank failed to provide adequate security for after hours patrons.

After trial, the trial court ruled that the bank did owe Jesse duty but that the duty was not breached and therefore the bank was not liable. The plaintiffs appealed and the appeals court ruled that the trial court was manifestly erroneous in determining there was no breach of duty and held that the bank was liable. Following the appeals court decision the Supreme Court of Louisiana handed down Posecaci v. Walmart Stores, Inc. where they adopted a balancing test for determining when business owners owe a duty to provide security for their patrons. In light of this decision the Supreme Court of Louisiana sent the Pinsonneault case back to the Court of Appeals where they reexamined the duty issue and reaffirmed their previous decision.

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In May 2005 the Third Circuit of the Louisiana Court of Appeals upheld a significant general damages award rendered in favor of Clyde Rayburn of Hineston. Mr. Rayburn, an 83 year old widower, was injured in 2003 when he was stopped in his pickup truck at an intersection and was struck from the rear by a school bus. He sustained injuries to his right shoulder, neck, and lower back and the defendants stipulated to liability at a 2004 trial. While Mr. Rayburn’s neck and lower back complaints were resolved, at the time of trial he continued to have difficulty with his right shoulder.

According to the testimony of his physician Dr. Drury, Mr. Rayburn has a chronic complete tear to his rotator cuff. A chronic tear means that the tear initially occurred six months or more before examination (and the accident) and completely tore during the accident. Mr. Rayburn had no complaints of pain before the accident and was quite active. After the accident, however, he had difficulty lifting his arm over his head or reaching out to pick up anything, even something as light as a gallon of milk from his refrigerator. Dr. Drury also testified regarding the prognosis of the injury and indicated that Mr. Rayburn was not a candidate for surgery and, although he would have good months and bad months, his condition was permanent.

The trial court believed Mr. Rayburn’s testimony that the preexisting rotator cuff tear did not hinder his lifestyle which was affected for the worse by the accident. As such, the court awarded Mr. Rayburn $85,000 in general damages and $3,450.15 in medical expenses. The general damage award was appealed as excessive to the court of appeals.

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30 year old Shannon Sampson of Minden was on the job as a supervisor with GATX Rail Field when he fell into a rail car and later died from his injuries. According to Webster Parish’s public information officer, Jenny Reynolds, Sampson fell after passing out due to a lack of oxygen.

As reported by the Shreveport Times on their website on March 12th:

Sampson was flown from the scene to a Shreveport hospital, where he later died. Bossier Parish Fire District No. 1 Assistant Chief Skip Pinkston told deputies the oxygen level in the rail car was 7.3 percent, ‘which is about half of what we need to function,’ Webster Parish Sheriff Gary Sexton said.

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According to a 2004 decision of the Louisiana Court of Appeals, the survivors of a New Orleans longshoreman will not be able to recover damages from corporate defendants Buck Kreihs and Dixie Machine. The Plaintiff, Mr. Vodanovich, worked as a longshoreman from 1948 to 1986. Part of his job was to load and unload asbestos cargo at several wharves along the Mississippi. It was at this job that he sometimes worked alongside the defendants employees who performed maintenance on the same ships.

Vodanovich was diagnosed with malignant mesothelioma in 2001. He died in 2002. Prior to his death he brought a lawsuit against Buck Kreihs and Dixie Machine. The defendants were granted summary judgment in 2003 when a trial court found that there was no issue of material fact as to whether or not the defendant’s actions led to the plaintiff’s exposure to asbestos and caused his death. On appeal, the Fourth Circuit Court of Appeals agreed with the trial court and affirmed the defendants’ summary judgment motion.

Summary judgment is proper when the pleadings, depositions, answers, admissions, and affidavits on file in a case show no issues of material fact to be decided by a jury. As such the moving party is entitled to judgment as a matter of law. Summary judgment effectively dismisses the case of a party that, according to the court, will not be able to prove their burden if the case to go to trial.

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As reported by the Ruston Daily Leader in January of this year, the family of Henry White has filed a lawsuit against Grambling State University, its supervisory panel, and the Louisiana Board of Trustees of State Colleges.

In August 2009, 21 year old Henry White was a criminal justice major and basketball player for GSU. He collapsed during what the school termed a “conditioning” drill that involved White and other students running without water in 100 degree heat. White was taken to the hospital after players tried to revive him by pouring water on him. No one called for assistance for 20 minutes. White died a little less than two weeks later.

According to the article, Natalie Wood, White’s mother filed the suit and alleges that

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