Articles Posted in Litigation

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Reports of drivers arrested for DWI, or “driving while intoxicated,” should serve as a reminder of the substantial duty imposed by the law on drivers to operate their vehicles in a safe manner. Motor vehicle operators owe a duty of care to all other drivers, passengers, and pedestrians to take reasonable care to avoid harm or injury. Some common breaches of this duty include driving too fast for conditions, failing to keep a proper lookout for other traffic, failing to observe traffic signals or markings, and driving while impaired by alcohol or drugs.

Two recent reports from Houma Today involve drivers who operated their vehicles while “under the influence” in Terrebonne Parish. The first involved Jeffrey Trahan of Gibson, Louisiana, who on March 22 received a five-year prison sentence for his role in a deadly car crash one year prior. According to police, on March 22, 2009, Trahan drove his 1996 Honda Accord on North Bayou Black Drive in Houma where he ran off the road into a ditch. Trahan’s car flipped over, ejecting both Trahan and Donald McInnis, his passenger. McInnis, 17, who was also from Gibson, was pronounced dead at the scene of the accident. According to prosecutor Juan Pickett, Trahan tested positive for marijuana and Xanax, a prescription anti-anxiety medication that can adversely affect driving. Trahan pleaded guilty to vehicular homicide and will be required to serve at least three years in jail without parole.

In the second report, James McDowell III of Baton Rouge was arrested in Thibodaux on March 24 for a fifth-offense DWI. At approximately 1:30 AM, a Louisiana state trooper observed McDowell swerving across lanes on La. Hwy. 308 near Bubba’s II Seafood Restaurant. The trooper charged McDowell with improper lane use, driving with a suspended license, and having an open container of alcohol in his car. McDowell had a blood-alcohol content of .052. While the state legal limit is .08, the trooper arrested McDowell because he had reason to believe that McDowell might have been under the influence of another substance. McDowell was taken to the Lafourche Parish jail.

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On December 15, 1955, James Edwin Watson, then 20 years old, was driving his Harley-Davidson motorcycle southbound on the two-lane State Highway 17 in West Carroll Parish, Louisiana. He was being followed at some distance by his friend, Douglas Simpson, in a Ford automobile. Both Watson and Simpson intended to make a left turn onto Airport Road on their way to Watson’s house. As they approached the intersection, a vehicle driven by Stanley D. McEacharn, Jr. overtook Simpson’s car on the left. Then, as McEacharn began to overtake Watson’s motorcycle, Watson, unaware of the presence of McEacharn’s car approaching in the left lane, proceeded at an angle into the left lane to make his left turn onto Airport Road. McEacharn’s car struck Watson’s Harley, sending the motorcycle further down the highway before it came to rest in the ditch on the side of the road. Watson’s body was found on the shoulder of the road, approximately half-way between where McEacharn’s car stopped and the motorcycle came to rest.

At trial, Simpson testified that as McEacharn’s car overtook his own, Watson’s Harley was out in front about 450 feet and was traveling, at an angle toward Airport Road, at about five MPH. Simpson said Watson gave a signal of his intention to make a left turn. McEacharn denied seeing any signal from Watson but admitted as he passed Simpson’s car he saw a glimpse of a man on a motorcycle. Both McEacharn and Simpson testified that they did not observe Watson make any turn of the head to the rear to check for traffic overtaking him.

The trial court concluded from the evidence that McEacharn had the last clear chance to avoid the accident but failed to avoid it because of “excessive speed, failure to keep a proper lookout ahead to discover the presence of those who may be in danger, failure to sound his horn, and failure to apply his brakes in time.” Watson v. McEacharn, 99 So. 2d 138, 139 (La. Ct. App. 2nd Cir. 1957). The court concluded that McEacharn’s negligence constituted the “proximate and immediate cause” of the accident, with Watson’s negligence in placing himself in a position of danger only a “remote” cause. Accordingly, the court entered judgment for Watson.

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On November 25, 1984, a natural gas pipeline running through a field in West Feliciana Parish, Louisiana exploded, causing the loss of lives and substantial property damage. The pipeline was owned by the Texas Eastern Company, but the land over which the pipeline ran was owned by Mary Lou Trawick Winters. Nearly thirty years prior to the incident, Mrs. Winters had agreed to provide Texas Eastern an easement to “construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace pipe lines” on the property. Dupree v. Texas Eastern Corp., 639 F. Supp. 463, 464 (M.D. La. 1986).

Relatives of the parties injured in the blast filed suit and named Ms. Winters as a defendant because of her ownership of the land over which Texas Eastern’s pipeline was run. The U.S. District Court for the Middle District of Louisiana first examined the state laws related to the granting of easements, and noted that “there are literally thousands of miles of underground natural gas … pipelines in Louisiana. It is a rare southwest Louisiana rice field that does not have at least one pipeline crossing it–many have multiple pipelines.” The court also observed that under federal law, natural gas pipeline companies are permitted to expropriate property needed for running the lines. In other words, landowners can be required to grant easements on their property for the installation of pipelines so long as the gas company compensates them based on the fair market value of the easements.

Although the court noted that pipeline easements are typically established by “voluntary” agreements between the pipeline companies and the landowners, it concluded that as a practical matter landowners are in no position to decline the request to grant an easement when “asked.” Revealing clear sympathy the position of such landowners, the court concluded, “the chances of the courts of Louisiana holding a landowner liable for activities of the [gas company] over which the landowner had no control, are akin to those of the proverbial snowball in the warm place.”

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Greek Seaman Dimitrios Keramidas’s ship was docked in East Charles Parish in 1999 when he became sick. He was hospitalized and treated for sepsis at East Jefferson General Hospital in Metairie for two months before he was sent back to Greece with medical approval. Keramidas never recovered and passed away in May 1999. His surviving widow and son brought suit under the Jones Act against Shipping and Steamship Mutual Underwriting Association Limited. The defendant was granted a summary judgment motion because the trial court found that “under the forum selection clause of the seaman’s employment agreement, the country of Cyprus, not the United States, is the proper forum to bring the suit.” The 5th Circuit Louisiana Court of Appeals reviewed and affirmed the trial court’s decision.

Forum Selection Clauses

Even though states usually can enforce their own procedural rules and forum selection clauses are basically procedural, in admiralty cases, they are controlled by federal law.

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According to reports from the Associated Press and Louisiana’s WWLTV, at least four people were killed in a tragic accident near Grosse Tete last Friday (April 9, 2010). The accident was so bad that a portion of 1-10 westbound was closed and traffic was diverted at the La. Highway 415 to U.S. Highway 190.

As reported by state troopers, an eastbound 18-wheeler sideswiped another 18-wheeler stopped on the shoulder. The first truck lost control, crossed the median, and collided head on with yet a third 18-wheeler. The second collision caused a fire. After the fire was put out, a car was found in the wreckage. The crash is still under investigation and no names of those involved have been released. However, a 15 year old girl reportedly survived without serious injuries.

After a tragedy like this one, family members of those killed will surely be asking themselves who was to blame for the accident and who will be responsible for damages. Survivors can sue whomever is at fault in a wrongful death lawsuit and may be able to collect a variety of damages, including medical and funeral expenses or compensation for pain and suffering. However, with an accident involving an 18-wheeler or other large commercial truck (or many, as in this case), the legal issues are a bit unique. The differences mainly stem from the fact that in a traditional vehicle accident where another driver was at fault, he and his insurance company will typically be held fully responsible for damages if the driver is proven to have acted negligently.

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As reported on our sister blog, Dow Chemical has experienced another chemical leak in Southeast Louisiana. This time involving the very dangerous titanium tetrachloride. The incident has led to the evacuation of two schools and various roads while local emergency experts assess the situation.

WWL reports Scott Whelchel, emergency operation director for St. Charles Parish, as stating the situation is under control and actions being taken are out of concern and precaution.

He says out of an abundance of caution they are evacuating some homes just north of the Shell Norco facility east of Spruce Street and south of 5th Street. He says the winds are now blowing any chemical cloud over the spillway and away from homes.

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A 2004 Louisiana Supreme Court case provides a good explanation of the difference between Medical Malpractice and ordinary negligence. Not every negligent act of a qualified health care provider falls within the Medical Malpractice Act (MMA), La.Rev.Stat. 40:1299.41(1).

In Williams v. Hospital Service of Jefferson, the plaintiff was injured as she was pushed in a wheelchair by an employee of West Jefferson Medical Center in Marrero, Louisiana. A wheel on the chair came off, she fell, and she was injured. She sued the hospital for negligent failure to repair the wheelchair and failure to insure that the wheelchair was in proper working condition. The sole issue the Supreme Court considered was whether the alleged negligence fell under the MMA. The Supreme Court of Louisiana determined it did not and sent the case back to the district court for further proceedings.

The Louisiana State Legislature enacted the MMA in 1975. One reason for the law was to provide health care providers with some advantages in actions against them for malpractice by limiting the damages that can be collected and requiring that each claim first be reviewed by a medical panel. The MMA only applies to claims “arising from medical malpractice” under La.Rev.Stat. 40:1299.41(1). Negligent behavior of health care providers that does not fit in the medical malpractice definition are governed by traditional tort principles. Courts have construed the coverage of the MMA strictly.

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Slip and Fall claims are filed in courts everyday and most are dismissed because the injured party could not prove anything. Important in a slip and fall case is “timeliness”: how soon after the incident a party filed a claim, got pictures of the accident area, hired an expert, etc. As you will see, the difference between a few days and a few weeks could make all the difference in a successful cause of action for a plaintiff. While accidents can occur almost anywhere, residents of New Orleans and other Gulf Coast cities know how difficult to navigate certain sidewalks and areas can be – to fail to file in time on a just claim would be a disaster if true harm has befallen a victim of such a fall.

In 1987, Mrs. Sellers was exiting a doctor’s office when she slipped and fell on a sidewalk. It had been raining that morning and the sidewalk, although covered, was clearly wet. Mrs. Sellers claimed to have slipped in a puddle of standing water outside the office entrance. She argued that the sidewalk, because of a defect, collected excess water that contributed to her fall. In an effort to recover damages from minor injuries sustained in the fall, Mrs. Sellers hired a professional photographer to take pictures of the sidewalk.

Under LSA-C.C. arts. 2317 and 2322, to prove liability for a defective thing, you must show that the defect in the thing poses an unreasonable risk of harm to others, and that the defect indeed caused the harm. The plaintiff, in this case Mrs. Sellers, has the burden of proving that (a) the defective sidewalk created an unreasonable risk of harm to patrons leaving the office, and (b) that the defective sidewalk in fact caused

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If someone trespasses onto another’s land and is injured will the landowner be held liable for damages? It’s a difficult question that has a variety of rationales for both sides of the issue. The answer could be yes, but only in limited circumstances.

In October 1998, 15 year old Hunter Racine was tragically killed after he trespassed onto the industrial property of the Goldwasser Moving and Storage Company at River Road and St. George Avenue in Jefferson Parish. Hunter, his brother Logan, and two friends entered the unfenced property without permission. First, they climbed onto an elevated tank tower and dropped pumpkins and a bowling ball onto parked trucks below. Then Hunter left temporarily and the others found an unattended locked truck with the keys in the ignition. Logan climbed in the passenger window and started the engine. For some reason the engine wouldn’t turn off and the car remained running, not moving, for several minutes. When Hunter returned he jumped on the running board of the truck, reached through the driver window, and attempted to shut it off. Suddenly the truck jumped into gear and began moving forward. Hunter was killed when he was trapped between the fence and the moving truck.

Racine’s family brought a lawsuit against Goldwasser (and others) alleging three different liability theories: attractive nuisance, strict liability, and negligence. Goldwasser filed a motion for summary judgment which was originally denied but then granted in the Louisiana Supreme Court’s 2002 reconsideration. The decision provides a good explanation of these three legal theories as they relate to landowner liability.

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A claim for loss of consortium is typically pursued following an injury where a husband or wife can no longer enjoy the companionship and services of his or her injured spouse to the same degree as before the accident. The loss can be permanent or only temporary, and it can result from the physical injury itself or the mental distress caused by the injury. The loss of sexual relations is frequently cited to support the claim, though it is not an essential element; the claim can also extend to other aspects of the spousal relationship such as caring for children, preparing meals, cleaning the house or performing other chores in the home, and sharing in social activities.

Louisiana law clearly defines the elements to be considered in a loss of consortium claim:

1. loss of love and affection;

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