Articles Posted in Litigation

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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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A malfunctioning traffic signal located in Rosepine, Louisiana, caused much confusion for two drivers one October morning in 1978. Going about their day, both drivers were given the green signal from their respective sides of the signal. As both drivers moved forward expecting the other to stop they collided. One driver filed suit, and the case that arose from the collision provided an opportunity for Louisiana’s Third Circuit Court of Appeal to clarify who is at fault in that type of situation. Through this ruling the court developed precedent for the responsibility in the event of malfunction. At fault was Louisiana’s Department of Transportation and Development (Department).

The Court first verified that the traffic signal was malfunctioning at the time of the accident. Both drivers and many uninterested witnesses testified as to the condition of the light. It was described as appearing to have been struck, being twisted, and turning from green to yellow and back on all sides.

The Court then looked to Article 2317 of Louisiana’s Civil Code to see who would be held liable for the plaintiff’s damages. The Article provides in part:

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How does the law treat someone bringing a lawsuit who may be somewhat at fault for the incident? Let’s assume an injured Louisiana resident wants to sue another driver for crashing into her vehicle. In his defense, the defendant driver argues that the plaintiff failed to properly yield, and is therefore at least partly to blame for the accident.

Depending on whether the jurisdiction follows the contributory, purely contributory, comparative, or purely comparative negligence regime, the defendant may be fully liable, partly liable, or not liable at all for the damages sustained by the plaintiff. These legal tests of contributory and comparative negligence are critical for injured plaintiffs to understand, as they may decide just how much or how little one can recover from a defendant if the accident was not fully the fault of just one party. Louisiana follows a pure comparative model. Whereas other negligence regimes might bar a plaintiff from recovering damages if they are more than 50% at fault for the injuries, the Louisiana model allows a jury to award damages as long as the defendant is simply a little bit at fault.

The defense of comparative negligence is critical in products liability litigation. Recent headlines regarding the Toyota recalls reveal that the car manufacturer may already be laying the groundwork for this type of defense in anticipation of future litigation.

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When traffic accidents occur, courts must examine the basic “rules of the road” that govern drivers’ conduct in determining fault. The violation of a traffic regulation is a frequently-used basis for finding that a driver was negligent when the violation results in a crash.

The case of Dyck v. Maddry, 81 So.2d 165, 167 (La. App. 2 Cir. 1955), was one such case where the court referred to basic traffic rules in determining fault. On the evening of June 2, 1954, Ms. Gladys Maddry was driving her Chevrolet coupe south on State Highway 90 just outside of Cotton Valley. Mr. Elmer Dyck approached Highway 90 from a street that intersected but did not cross it, thus forming a “T” intersection. The intersecting street was marked with a stop sign, while traffic on Highway 90 had the right-of-way. Mr. Dyck testified that he approached Highway 90, stopped at the intersection, and after confirming there were no oncoming vehicles, proceeded to make a left turn onto the highway. After he had traveled about 90 feet south of the intersection, Mr. Dyck’s car was struck from the rear and overturned by Ms. Maddry’s automobile. Ms. Maddry testified that Mr. Dyck drove suddenly into her path and that she immediately applied her brakes to try to avoid the collision.

At trial, the court found that both Mr. Dyck and Ms. Maddry were contributorily negligent and denied their claims against each other. The Court of Appeal upheld the findings of the trial court. Regarding Ms. Maddry’s negligence, the court noted that Louisiana law

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