Litigation

November 2, 2010

Louisiana Car Accident Statistics Show Safety Precautions Necessary When Driving

In 2009, over 800 people were killed in motor vehicle crashes in Louisiana. An additional 73,000 persons were injured in car crashes. The applicability of these statistics are obvious: you and too many other drivers and passengers are at risk every time you get on the road in Louisiana. However, there are steps you can take to protect yourself each time you get in a vehicle that can increase your safety and limit the effects of a crash on your health and the health of others in the car.

Sadly, almost 50% of fatal car crashes involve alcohol. A conviction for driving under the influence of drugs and/or alcohol results in a mandatory ignition interlock hardship license and additional penalties including, but not limited to, a permanent criminal record, 6 months in jail, $1,000 fine plus court costs, and losing your driver’s license for 90 days. Furthermore, after three misdemeanor DUI convictions, these charges become felonies. Felonies are even more serious than misdemeanors and involve harsher penalties. These very real criminal penalties pale in comparison to the financial and emotional hardships those who cause a serious accident while impaired will suffer.

While hazards like a drunk driver are, at times, nearly impossible to avoid, there are some things you can do to protect yourself and your passengers while you are driving. Efforts that will minimize your exposure to serious harm include, but are not limited to, driving the speed limit, wearing your seat belt, and, when appropriate, wearing a safety helmet. Safety helmets reduce the risk of death by 29% and the risk of fatal head injury by 40%. It is important that you make sure that you and all of your passengers are wearing your seat belts before you start driving because more than 65% of drivers who are killed in crashes were not wearing their safety belts. Young drivers and passengers are especially resistant to wearing seat belts. A Louisiana study shows that 14% of all high school students report that they rarely or never wear seat belts when riding with someone else. By making sure you and your teen wear your seat belts, you will be saving money not only through perks like those offered by car insurers but overall as a taxpayer. Louisiana residents spend almost $6 billion annually paying for car crashes, which comes out to about $2,000 per licensed driver. If all residents of this state were to make sure to secure their seatbelt before driving, a lot of money could be saved solely through practicing safe driving techniques.

October 31, 2010

Berniard Law Firm Unveils New iPhone Application

by Berniard Law Firm

The Berniard Law Firm is proud to announce the release of an innovative new iPhone application that can be considered a must-have for individuals in the Gulf Coast. With extensive versatility and options including multiple contact points for our attorneys, as well as consistent site updates that will keep you informed of legal developments as they become available. Released October 26, we recommend everyone download the application in order to stay abreast of a variety of issues that relate to them.

In the works for some time, and with an update already planned, the Berniard Law Firm iPhone app puts law matters that are important to Louisiana residents in the palm of their hands. Constantly refreshing, with updates relating to our website, this application is an effort by our firm to allow our friends and clients quick access and up-to-date information for their daily lives. Whether using the application to send our firm a legal question or to call our offices, we strongly encourage anyone that wants an attorney and a wealth of legal information at your fingertips.

Specifically, the Berniard Law Firm Injury Attorney iPhone App provides users

October 29, 2010

Lafayette Parish School Board Case Provides Lesson on Duty of Care Owed to Students Who Stay After School for Detention

by Berniard Law Firm

Common in Louisiana middle schools is a disciplinary program that requires students who engage in acts of moderately serious misbehavior to stay after school in “detention.” To reinforce the punitive nature of the program, many schools require a student who stays late for detention to find his or her own means of transportation home. Presumably, this requires the involvement of a parent or other responsible adult who would then be made aware of the student’s misbehavior, and who could help the student correct the problem. The scope of a school’s responsibility for a student’s safety after she left school grounds following detention arose in the case of S.J. v. Lafayette Parish School Board, No. 2009-C-2195 (La. 2010).

On November 4, 2004, a twelve-year-old, female sixth-grader, “C.C.,” stayed after school at Lafayette Middle School to serve detention. When detention concluded at around 4:00 PM, C.C. left the school with another student and walked to a nearby fast food restaurant. The two girls parted ways at the restaurant and as C.C. made her way home, she was attacked and raped by an unknown male assailant. C.C. and her mother filed a lawsuit suit against the school board, arguing that the board, through its employees at Lafayette Middle School, had failed to exercise reasonable supervision over C.C., which resulted in her being assaulted. The trial court granted the board’s motion for summary judgment on the basis that the board “had no duty to safeguard a child’s well-being after the child leaves the school property,” and dismissed the action. The Louisiana Court of Appeal affirmed this decision, but it was then reversed by the Louisiana Supreme Court and remanded for trial. After a bench trial, the court found no negligence on the part of the school board and dismissed the plaintiffs’ action. In particular, the court noted that the school discharged its duty to C.C. and the other students who stayed for detention by ensuring that none of them was left behind at the school after detention concluded without a way home. On appeal, a three-judge majority of the five-judge panel of the Court of Appeal reversed the trial court. The panel found liability on the school board’s part based largely on a Louisiana statute that requires schools to provide transportation to students who live more than a mile from campus. La. Rev. Stat. 17:158(A)(1). The panel concluded the school breached its duty to C.C. by disallowing her from riding home on the after-hours bus, which was reserved for students who stayed after school for non-disciplinary reasons, and further by denying her access to a school telephone to call her mother for a ride.

On appeal, the Louisiana Supreme Court reviewed the elements a plaintiff must prove in a negligence action (duty, breach, causation, and actual damages), and noted that “whether a duty is owed is a question of law; whether a defendant has breached a duty owed is a question of fact.” The court began its analysis by observing that “it is well-settled that the duty imposed on a school board with regard to children in its care is one of ‘reasonable supervision.’” La. Civ. Code Arts. 2315; 2320. With respect to the question of whether this duty is expanded by the statute requiring school boards to provide free transportation for students to and from campus, the court answered that it does not. Doing so would “make a school board responsible for any and all injuries sustained by ‘any student,’ regardless of time, distance, and intervening factors, when those injuries would not have been suffered if the student had just been provided a free ride home.”

October 27, 2010

Morehouse Parish Case Illuminates Vitality of the ‘Two Contract Theory’ and the Exclusivity of the Workers Comp Remedy

by Berniard Law Firm

The case of Dugan v. Waste Management, Inc., was recently handed down by the Second Circuit Louisiana Court of Appeals. It is a tragic case, involving the deaths of two garbage truck employees, and the wrongful death suit that followed. In June 2007, Lamare Kindle and Wallace Bradley were riding in a garbage truck owned by Waste Management. Mr. Kindle and Mr. Bradley were both garbagemen, performing waste reduction services for Waste Management. Mr. Bradley was driving the garbage truck, while Mr. Kindle rode as passenger. As the garbage truck came upon a railway crossing, Mr. Bradley is alleged to have failed to yield and the two were both struck and killed by an oncoming freight train.

Mr. Kindle’s parents, including Ms. Bonita Dugan, subsequently filed a wrongful death suit to recover for their son’s death. Their theory was that, because Mr. Bradley was a direct employee of Waste Management and was acting in his scope of employment at the time of the accident, Mr. Bradley was thereby an agent of Waste Management. Moreover, because an employer can be held legally responsible for its agent’s negligent actions, the parents stated that Waste Management should be held directly responsible for Bradley’s negligent driving.

In spite of this usually sound legal theory, the wrongful death suit was immediately complicated by the peculiar employment relationship Mr. Kindle held with Waste Management. While Mr. Bradley, the driver, was a direct employee of Waste Management, Mr. Kindle, the passenger, subcontracted his labor to Waste Management through a temporary employment agency. A question arose: notwithstanding the subcontractual relationship, was Mr. Kindle an “employee” of Waste Management or an “employee” of the employment agency instead?

October 25, 2010

Chinese Drywall News a Welcome Sign for Those With Toxic Sheetrock in their Home

by Berniard Law Firm

Louisiana residents are becoming increasingly concerned about the drywall in their homes, which might be leaking toxins and other contaminants into the bedrooms and throughout the house depending on the manufacturer. Drywall consists of panels made of gypsum plaster pressed between two thick sheets of paper. The panels are used to make interior walls and ceilings. This is frightening for people who live in contaminated homes because of the proximity to possible toxins and poisons: literally they are just a few inches away from deadly poisons. This harmful occurence can lead to a variety of health defects from the negligence of people involved in using these toxins in drywall.

Many Louisiana residents have filed complaints in court about the drywall over the past few years. These lawsuits were pressed by those looking to recover the money it would cost to replace their drywall with a safer and healthier version. Since this process involves major construction, the costs are high and these people rightfully felt they should not have to pay for unknowingly being exposed to contaminants by the manufacturer.

Because of the dangers involved, and the damage caused to fixtures and elements of the home, many are wondering how they may find out if they are living in a contaminated home. Those who suspect they have the drywall in their homes should be on the lookout for health symptoms amongst their family that include runny nose, difficulty breathing, and headaches. If you or any of your family members are exhibiting these symptoms, be sure to contact an experienced attorney today. It is imperative that you act now while the courts are dealing with other cases like yours.

October 23, 2010

Tangipahoa Parish Plaintiff Defeated at Summary Judgment by Failure to Link Defendant to Negligent Act

by Berniard Law Firm

In late 2007, the Tangipahoa Parish government began making repairs to Berry Bowl Road in Independence, Louisiana. One of the contracting firms the parish hired to complete street overlay work was Barriere Construction Company, LLC. On the evening of January 8, 2007, Joseph Alessi, Jr. struck a “bump” in the road with his car, resulting in substantial damage to the vehicle and injuries to him and his two passengers, Linda Alessi and Tommie Sinagra. Following the accident, Alessi filed suit against Barriere, alleging that the company’s employees were negligent and liable for his damages. Specifically, the complaint alleged that Barriere was negligent in creating a defect in the roadway where vehicles were allowed to drive and failing to take reasonable measures to protect the public from the hazardous condition.

Barriere filed a motion for summary judgment, arguing that it had nothing to do with the condition of the road where Alessi’s accident occurred. Barriere submitted affidavits and detailed invoices it had remitted to Tangipahoa Parish in order to be paid showing that its crews had not worked on Berry Bowl Road for at least six days prior to the accident. Additionally, Barriere asserted that the time it had last worked on Berry Bowl Road, the repairs had ended approximately 700 feet from the location where Alessi hit the bump. Barriere offered that any problemw with the road must have been caused by a Tangipahoa Parish bridge construction crew that was working in the area at the time. The district court held a hearing on the motion for summary judgment on September 28, 2009 and the next day granted Barriere’s motion. Alessi appealed.

The First Circuit reviewed the district court’s granting of summary judgment de novo, meaning that it examined all of the evidence in the case as if for the first time. The court explained that “summary judgment is warranted only if there is no genuine issue as to material fact.” A fact is considered “material” if

October 21, 2010

Limited Details Emerge From Chalmette Refinery Death, Chemical Leak

by Berniard Law Firm

A death occurred at the Chalmette Refinery on October 6 during an attempt to repair a leak of hydrogen sulfide, according to St. Bernard Sheriff’s office. A 33 year old contract worker, Gregory Starkey, of Roseland, collapsed and then died while working at the facility. Starkey was employed by TEAM Industrial Services of Harahan near New Orleans. The website for TEAM Industrial Services indicates the company specializes in industrial leak and valve repair, emission control, and other services related to mechanical and piping systems.

Exxon Mobil Corporation is the managing partner in charge of operations at the 196,000 barrel-per-day (bpd) Chalmette Refinery which is a 50-50 joint venture between Exxon and PDVSA, Venezuela’s national oil company. According to Exxon spokesman Kevin Allexon, the monitored hydrogen sulfide concentrations were not at levels considered harmful. Also, Exxon was “actively mitigating” odors from the leak. According to State Police, the hydrogen sulfide gas leak is considered contained rather than completely sealed pending delivery of a part. However, the leak was being monitored and believed to have no affect on offsite air. Nonetheless, both the leak and the fatality are currently under investigation.

The leak was first documented two days prior to the fatality and two days after had been contained but not yet completely sealed according to Louisiana State Police. As per Trooper Melissa Matey, the delay resulted from the need for a part to be delivered in order to completely seal the leak.

October 19, 2010

Ouachita Parish Car Wreck Shows Trial Court’s Role in Settling “He Said/She Said” Arguments

by Berniard Law Firm

On October 18, 2007, Kalencia Young and her passenger, Ashley Newsome, both pregnant, were driving on DeSiard Street toward Renwick Street in Monroe. At the same time, Gerald Adams was driving toward the intersection, which was controlled by a traffic light, on Renwick Street. The two vehicles collided when Adams’s pickup truck struck the passenger side of Young’s car.

Officer Tobyn Berry of the Monroe Police Department responded to the scene. He questioned both drivers and inspected the traffic light to determine that it was working normally. Berry also questioned two witnesses to the accident. One of the witnesses claimed that he saw Adams talking on his cell phone at the time of the crash and alleged that the traffic light was red for Adams as he approached the interestion. Officer Berry issued Adams a citation for failing to observe the traffic signal. Both Young and Newsome were taken to the St. Francis Hospital by ambulance and were released a short time later.

Young and Newsome sued Adams for the injuries they sustained in the crash. At the trial, Officer Berry’s deposition and accident report were entered into evidence. Both Young and Newsome testified, agreeing on few details except that they had a green light at the intersection. In response, Adams testified that he had the green light as he approached the intersection, and denied talking on his cell phone at the time of the accident. The trial court rendered judgment for Adams, finding his testimony to be “more credible than the entirety of the plaintiffs’ case.” Young and Newsome filed a motion for a new trial so they could subpoena the two witnesses from the scene. The witnesses failed to appear during the second trial, and the court once again rendered judgment in Adams’s favor.

October 17, 2010

Piercing the Corporate Veil: How to Collect from the Company and the Person Responsible for your Injuries

by Berniard Law Firm

Ericka Lynn Carter brought a lawsuit against several parties after she was in a car accident in January, 2008: B&B Wholesale, Inc., Praetorian Speciality Insurance Company, Billy Dwayne Brumley, Ancul D. Bland, and the Louisiana Department of Transportation. She alleged that each party was liable for damages. Defendant Brumley moved for summary judgment and argued that he could not be held personally liable since his actions were taken only in his corporate capacity as president of B&B Wholesale. The trial court agreed and dismissed Brumley as a defendant and Ms. Carter appealed.

In a decision last month the Louisiana Court of Appeals agreed with the trial court and affirmed the dismissal.

The accident at issue occurred on U.S. Hwy 84 in DeSoto Parish. Michael Carter, an employee of SWEPCO, was driving his work truck north on La.Hwy. 482. When he approached the intersection at Hwy.84 Brumley, was approaching the same intersection, followed by his employee, Ancul Bland. At the intersection Michael had a stop sign and Bland and Brumley had the right of way. Michael claims he stopped but did not see the tractor trailer Bland was driving and pulled into the intersection to make a right turn and collided with the tractor trailer. Brumley witnessed the accident, but was not physically involved. The police report found that the tractor-trailer was not roadworthy and had defective brakes, steering, and headlights. They also found that Bland did not have a valid Class A Commercial Driver’s License.

October 15, 2010

Berniard Law Firm Files Suit for Chalmette Refinery Catalyst Release in Ninth Ward, Other Communities

by Berniard Law Firm

The Berniard Law Firm is look to tackle a negligent refinery by representing a Chalmette resident assaulted by chemicals released from a St. Bernard Parish oil refinery. While taking a walk through her neighborhood on the morning of September 6, 2009, the woman observed white dust covering homes and vehicles. She experienced exposure symptoms including difficulty breathing, coughing, sore throat, headache, and burning sensations in her nose and eyes. As the symptoms persisted, she went to a hospital the following day. The white powder comprised a spent catalyst including components of kaolin and titanium dioxide which are eye, skin and lung irritants. Portions of Chalmette, Arabi, and New Orleans’ Lower Ninth Ward were blanketed with the fine white powder.

In addition to releasing a ton of spent catalyst, the refinery released two thousand pounds of sulfur dioxide, one thousand pounds of nitrogen oxide, and an unspecified amount of hydrogen sulfide. Not only was the refinery negligent in releasing the toxic chemicals but also for failing to notify area residents of the accident in a timely manner so that they could take precautionary measures. Moreover, children and pets are more susceptible to exposure symptoms due to their smaller size while residents with certain pre-existing medical conditions would also suffer greater harm than a healthy adult. For example, children have a greater lung surface area to body weight ratio along with other parameters that differ from adults leading to greater susceptibility to chemical inhalation effects at lower concentrations. Likewise, pre-existing medical conditions including chronic pulmonary disease and asthma increase susceptibility to exposure symptoms at lower concentrations.

Specifically, sulfur dioxide may induce acute exposure symptoms comprising irritation in the upper respiratory tract, nosebleeds and rhinorrhea (runny nose), coughing and choking, expectoration (coughing up phlegm), dysphagia (difficulty swallowing), and oropharyngeal erythema (redness). Although predominately affecting the upper respiratory tract via inhalation, sulfur dioxide also acts as an intense eye and skin irritant by combining with water producing sulfuric acid and sulfurous acid. Dermal exposure symptoms range from irritation to urticarea (itchiness) and burns. Given this high solubility, sulfur dioxide is also rapidly distributed throughout the body producing metabolic acidosis possibly inducing vomiting, diarrhea, abdominal pain, fever, headache, vertigo (dizziness), and agitation. Decontamination should include removal of contaminated clothing and rinsing of the skin and eyes. Reproductive and teratogenic effects (malformation of embryo, fetus) of exposure are unknown, which has raised concerns among women at varying stages of pregnancy at the time this accident occurred.