Pain And Suffering Claims

July 23, 2011

Court Dismisses Case Relating to Spine Injury on Abbeville Bridge

A wide variety of events can occur to cause injury. The courts, when faced with a civil litigation involving a personal injury, are forced to narrow the cause of said injury in order to determine how much damage was caused by an incident. When a person has a series of injuries, or has a less than sterling claim, the courts are forced to decide just how responsible the incident was for the pain suffered.

A recent case involving a malfunctioning bridge and a questionable “victim” helps highlight this problem. The plaintiff in this case, Ms. Trahan, was stopped at the Highway 14 Bridge in Abbeville, Louisiana as a boat passed under. The bridge, owned and operated by the defendant Louisiana Department of Transportation & Development, failed to correctly fall in place once the boat had safety passed. The bridge incorrectly sat between 3 to 7 inches above the road’s surface. Ms. Trahan hit the raised area while traveling approximately 15 miles per hour. Ms. Trahan claimed that she had sustained severe back pain as a result of the collision. The state argued that they were in fact liable for the defect in the bridge, but the injury sustained by Ms. Trahan was not at all related to the defective bridge. The trial court agreed with the state department and dismissed the case. In its conclusion, the trial court found the credibility of Ms. Trahan to be highly suspect, and was presented with evidence that suggested alternative possibilities for Ms. Trahan’s injuries. Ms. Trahan’s sole appeal rested on the fact that the trial court erred when it failed to find that the injury to Ms. Trahan was a direct result of the bridge incident.

A necessary element to a claim of liability is not simply that an injury exists, but that the factual evidence sufficiently shows that the defendant was the actual and proximate cause of that injury. In ruling on questions of fact, like the one presented in this case, the appellate court follows the manifest error standard when determining whether to affirm or reverse the trial court’s decision. At the trial court, Ms. Trahan was required to show by a preponderance of the evidence that her back injury was a direct result of the bridge’s defect. Because the trial court determined that Ms. Trahan failed to meet that burden, the manifest error standard, as stated in Lewis v. Department of Transportation & Development, requires the appellate court to determine only if the trial court’s factual conclusion were reasonable. The decision is only reversed if it is found that the trial court’s finding was clearly wrong or manifestly erroneous. The case of Orea v. Scallan puts the standard in perspective, stating that the appellate court may not reverse simply because it is convinced that, had it been determining the facts as they were presented in the trial court, it would have come to a different outcome. Additionally, when a trial court’s findings are based on the credibility of witnesses, Rosell v. ESCO establishes that the trial court’s reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review by the appellate court.

July 21, 2011

Court Examines Limits of Uninsured Motorist Coverage in Ouachita Parish Auto Accident

by Berniard Law Firm

In a previous post, we discussed Uninsured/Underinsured Motorist (“UM”) coverage provisions in auto insurance policies. In short, UM coverage is intended to protect the policyholder in cases of injury or loss inflicted by another driver who has inadequate insurance or no insurance at all. UM coverage is not without limitation; however, as most policies apply the coverage only to the named policyholder himself and in cases when the loss or injury occurs through use of the vehicle covered by the policy. In Cadwallader v. Allstate Ins. Co., the court stated that an insurance policy is “a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code.” Thus, the policy language will control the details of UM coverage, so long as any limitations in the provision do not violate public policy.

The general rules of contract interpretation were applied by Louisiana’s Second Circuit Court of Appeal in the case of Kottenbrook v. Shelter Mutual Insurance Co. On June 29, 2009, Jack Kottenbrook, an Ouachita Parish sheriff’s deputy, was involved in a car accident while riding as a passenger in a police cruiser. He suffered serious injuries in the crash and sought damages before eventually settling with the at-fault driver and the driver’s insurer. Kottenbrook then filed a lawsuit against Shelter Mutual Insurance Company, alleging he was covered under the underinsured motorist provision in a policy for which he was identified as an “additional listed insured.” This policy was issued to Jack Armstrong, Inc., a corporation, and specifically covered a Ford Mustang owned by the corporation. Kottenbrook was, however, not driving this Ford Mustang when the accident occured, so the court must look to the direct policy language to determine if he was occupying a “covered vehicle” in which the policy would provide him coverage.

Shelter disputed that the policy’s UM coverage extended to Kottenbrook, given that he was not “occupying” the “covered vehicle” at the time of his injuries. The Second Circuit declared that “the coverage extended to Kottenbrook is defined and limited under the policy.” A reading of the definitions contained within the policy led the court to find that UM coverage “was limited to Kottenbrook’s use of the [Mustang,]” not any other vehicle such as the police cruiser. The court found nothing impermissible about this limitation from a public policy perspective, and affirmed the trial court’s judgment for Shelter. It is important to read and understand the coverage of a UM insurance policy because they are often equipped with a variety of limitations. As in Caldwater v. Allstate Insurance Co., insurance policies are contracts that must be looked at with a careful set of eyes to truly understand how every provision hidden in the contract applies to unfortunate circumstances like Mr. Kottenbrook.

July 19, 2011

Injuries, Damages Caused by Defective Sidewalks: City Can Be Held Liable

by Berniard Law Firm

Cities and towns are responsible for the maintenance and upkeep of streets and sidewalks. The issue arises though, when such streets and sidewalks fall into disrepair and injure residents. Yet, no person shall have a cause of action against a public entity (such as a city) for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had reasonable opportunity to remedy the defect and has failed to do so. Louisiana revised Statute 9:2800. To recover against a public entity such as a city for damages certain requirements have to be met. Thus, unless the legal requirements are all fulfilled a plaintiff may or may not be able to recover depending on the circumstances.

In a recent Louisiana Second Circuit Court of Appeal decision, the court explores the requirements that a plaintiff must meet in order to recover for injuries sustained as a result of a defective thing in the city’s custody and care. The facts of the case involve a plaintiff who was walking her dog along a city sidewalk in Shreveport, Louisiana. While walking her dog she tripped over an elevated portion of the sidewalk and fell to the ground. The fall caused her substantial pain in her shoulder which led her to seek medical treatment the day after the incident at the emergency room of Willis Knighton Health Center. She eventually filed a petition for damages against the defendant city of Shreveport and was awarded $964.99 for medical expenses and $20,000 in general damages. The City appealed the decision on the basis that the requirements for a lawsuit against a city were not fulfilled.

To recover against a city for damages due to a defective thing, such as a sidewalk, the plaintiff must prove by a preponderance of evidence four things.

July 15, 2011

Asbestos Cases Always Difficult, Involve Negligence and Diverse Defendant Groups

by Berniard Law Firm

The use of asbestos in products such as concrete, bricks, pipes, and other building materials has made way for a large amount of litigation on asbestos-related diseases and deaths. This litigation can help victims of the chemical and their families find some sort of meaning and relief from the toxic material. Litigation on asbestos, however, is very difficult both because the asbestos-related damages did not result from a single, identifiable act, and because it is not only the companies that produced the asbestos which are guilty- it is also those that used and marketed it.

A recent case contains both of these difficulties. Phillip Graf was exposed to asbestos for a period of 30 years while working in several jobs including metal works and drywall. Such extended exposure to such toxic material places one at risk of contracting mesothelioma, a rare form of cancer. Graf suffered from mesothelioma and later died from the disease. His family, Beatrice, Doryk, and Paulette Graf are suing in response to his death. They have named 29 defendants in the case, including Benjamin Moore & Co. and Metropolitan Life. The Graf family claims that the defendants are not only guilty of designing, manufacturing, packaging, transporting, and selling asbestos products, but also aiding and abetting the marketing of asbestos products.

In a traditional personal injury case, the damage results from a single act, but in asbestos cases such as Phillip Graf’s, the damages occurred over periods as long as 30 years or longer. What is worse, typically problems that result from asbestos exposure take years to show. Mesothelioma itself is impossible to detect early on and its symptoms are similar to other diseases, so patients are frequently misdiagnosed. All of this makes it very difficult for plaintiffs to prove that their health problems resulted from asbestos exposure and then link that asbestos exposure to the actions of the defendants. In the Graf case, the Graf family will have to show that the suffering and death Phillip Graf endured from his mesothelioma was caused by asbestos exposure, and that the named defendants caused that exposure.

July 13, 2011

Motorist Found Negligent Following Collision with Police Cruiser in Monroe, LA

by Berniard Law Firm

The Louisiana Court of Appeal for the Second Circuit recently upheld a trial court decision finding a Monroe motorist negligent following a minor collision in which she was rear-ended by a police cruiser as she was pulling across five-lane Forsythe Avenue. The plaintiff, Cathy Griffin, sued the City of Monroe and Police Officer Jeffrey Pilcher following the July 2008 collision.

The Trial Court held Griffin was clearly negligent, noting that Griffin barely avoided a collision with a westbound vehicle when she pulled her car out onto Forsythe. The Court held she then crossed the lanes of travel and entered the outside lane where the collision occurred. After taking the matter under advisement to determine whether any fault should be assessed against Pilcher, the trial judge found no fault on his part. The trial judge concluded that Pilcher was doing what was necessary to apprehend a speeder and was not driving with reckless disregard for the safety of others, whereas Griffin pulled onto Forsythe without seeing what she should have seen, namely, Pilcher’s approaching patrol car with its emergency lights flashing.

Griffin appealed both the Trial Court’s finding that she was negligent as well as the determination that Pilcher was not negligent.

July 9, 2011

Maritime and Industry Injury Cases Quite Complex

by Berniard Law Firm

The Town of Vidalia and the Parish of Concordia have the honor and distinction of being the beneficiary and location, respectively, of the largest prefabricated power plant in the world and the first hydroelectric power plant in the State of Louisiana. In 1990 the Sidney A. Murray Jr. hydroelectric station was prefabricated at the Avondale Shipyard in New Orleans, and floated 208 miles upriver to its current location: 40 miles south of Vidalia. The facility sits one mile north of the Army Corp of Engineers Old River Control Complex between the Mississippi River and the Red Atchafalaya River, producing 192 megawatts by utilizing the flow of 170,000 cubic feet per second of water past eight hydroelectric turbines. The project is remarkable not just because it is the first hydroelectric plant in Louisiana, and the largest prefabricated hydroelectric plant on the planet; but it is also the product of a multinational collaboration, it produces clean and renewable energy for Vidalia, and the town of Vidalia is a co-licensee of the project. In addition to the obvious benefits of clean and renewable energy and the employment that the Sidney A Murray Jr. project bestows on Vidalia and the Parish of Concordia; the citizens of Vidalia also benefit from “stabilized energy rates” that they receive with the operation of the plant.

Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co. is a particularly interesting case for those living in Concordia Parish because it is a maritime tort case involving the Sidney A. Murray Hydroelectric Plant. The case is important because it includes a review of the standards for damage requirements established in Robins Drydock and Repair Co. v. Flint 275 U.S. 303 (1927) and reaffirmed in Louisiana ex. rel. Guste v. M/V TESTBANK 752 F.2d 1019 (5th Cir. 1985). After reviewing Robins and TESTBANK, the 5th Circuit then applies the Robins test to the particular facts of the case. This will be a two part discussion: the first part will identify and discuss the test developed in Robins and evaluated in TESTBANK. The second part will discuss how the 5th Circuit applied the Robins test to the facts of the Catalyst case.

In 1927 the United States Supreme Court decided Robins Dry Dock and Repair Co. v. Flint. This case established “the general proposition that claims for pure economic loss are not recoverable in tort.” This decision has profoundly impacted not just maritime tort law, but general negligence law as well; with extremely broad implications and applications that resound to this day, over 80 years later. ” No single decision in American tort law has more dominated the analysis of liability for pure economic loss than Robins Dry Dock Repair Co. v. Flint.” Justice Holmes “denied the plaintiff, a time charterer recovery for financial loss which resulted from the defendant’s interference with the plaintiff’s use of the chartered vessel.” The following hints at the scope of the effects of the decision.

July 7, 2011

Fourth of July Offers Reminder of Danger of Negligence and Need for Common Sense, Attention to Safety

by Berniard Law Firm

July 4th, though best known as an occasion for grilling out, visiting the beach or lake, and watching the fireworks, is unfortunately also notorious for its high incidence of accidents and injuries. Many incidents, especially vehicle and boat accidents, are related to alcohol use. The Louisiana Highway Safety Commission recently announced that more than 87 state and local law enforcement agencies work overtime throughout the holiday weekend. Many of the agencies will be participating in the state’s “Over the Limit, Under Arrest” campaign that aims to keep impaired drivers off the road. The Commission reports that the number of highway deaths has dropped significantly over the past few years: 16 people were killed on Louisiana highways over the Fourth of July holiday in 2007, and only two fatalities occurred last year.

Despite this positive trend and the stepped-up efforts by law enforcement, patriotic celebrants throughout Louisiana may still find themselves in dangerous situations over these holiday weekends. When calamity should strike, the parties involved may turn to the courts to resolve their dispute; the resolution will likely involve the court’s application of negligence. The theory contains four basic elements that a plaintiff must show in order to recover from a defendant. First, a plaintiff must establish that the defendant owed him or her a duty. This is generally a straightforward matter, as all members of society have a responsibility to exercise reasonable care toward others; this duty takes such common sense forms as requiring users of fireworks to point bottle rockets away from bystanders or drivers to operate their vehicles in a safe manner. Driving a car or piloting a boat or jet ski while under the influence of alcohol or drugs is a clear violation of this duty. A person who fails to observe the obligation of safety and engages in conduct that poses an unreasonable risk of harm to others is said to breach this duty. This second element of negligence must be tied to the plaintiff’s injury by way of the third element, causation. That is, the defendant’s breach of duty must have resulted in the plaintiff’s injury. A defendant is responsible only for the consequences that are directly linked to his or her misconduct.

The final element, harm, requires the plaintiff to prove that he or she suffered a loss. The court can award two kinds of damages to compensate the plaintiff for his losses: special and general. Special damages are those which are easily quantifiable, such as medical expenses, lost wages, or property repair costs. General damages cover intangible losses, such as pain and suffering. Trial courts are afforded great latitude in assessing general damage awards, which can potentially expose defendants to staggering liability.

July 3, 2011

On-the-Job Injury at Sea: The Jones Act, Employer Negligence, and Claims for Unseaworthiness

by Berniard Law Firm

In any workplace, an on-the-job injury can have serious repercussions, both medical and legal, for the injured employee and their employer. However, if the injured employee is a seaman, additional maritime laws and standards may apply when an injury occurs. For individuals working on ships, in shipyards, or in any industry covered by maritime law, knowledge of the protections and specific laws which apply in the event of injury is pivotal in order to be able to protect oneself.

The recent Louisiana First Circuit Court of Appeals case of Graham v. Offshore Specialty Fabricators, Inc. and Cashman Equipment Co. illustrates the importance of understanding the Jones Act, a federal law allowing seamen injured on the job to sue their employers, and claims alleging unseaworthiness of vessels. Graham was injured while working with a barge fleet on the Atchafalaya River near Morgan City, Louisiana. He and a co-worker were charged with the task of securing their employers deck barge. During this process, they needed to move other barges owned by Cashman Equipment Co. They crossed the deck of one such barge in order to reach and release the ship’s towline. Unbeknownst to the men, there were two large holes on the ship’s deck. Both men fell through one of the holes and both were seriously injured. Graham sued, and the lower court found in his favor. A jury awarded him damages. Both plaintiff and defendant appealed.

Graham brought his personal injury suit under the Jones Act. The Jones Act applies to any seaman who is injured or killed on the job and establishes his or her right to bring a civil action against an employer. The potential liability of the employer extends to all personal injuries sustained on the job, but the employee must prove negligence in order to recover. The duty of care owed by an employer under the Act is ordinary prudence. The ordinary prudence standard requires an employer to take reasonable care in maintaining a safe work environment under the circumstances particular to the case. To prove a claim of ordinary negligence, a claimant must prove that injury occurred and that the employer owed a duty to the injured, that the duty was breached, and that the breach caused the injury. The claimant must also show they themselves were exercising reasonable care in the course of their activities in order to recover. Graham presented evidence that the defendants were at fault for failing to properly maintain their ship deck. Based on this evidence, the appellate court held that the jury determination of damages on this issue should stand.

July 1, 2011

Complex Nature of the Allocation of Fault in Negligence Cases

by Berniard Law Firm

When an unexpected personal injury occurs, the injured party may find the situation requires legal action. An injured person deserves to know where the money to pay for medical expenses, lost wages, and incidental expenses stemming from an injury will come from, and in many cases a legal claim can serve as a means to provide that knowledge. What many people thinking about initiating a claim for personal injury overlook is that the standards of the court in allocating fault for an injury may dictate the amount of recovery possible for an injured claimant.

Fault allocation can alter the amount of a damage award an injured party receives. The Louisiana Second Circuit Court of Appeal re-allocated percentages of fault that had been awarded by the lower court in the case of Matlock v. City of Shreveport . Matlock, a teacher and assistant softball coach, sued the City of Shreveport after she tripped and fell in a hole in the side walk on her way to softball practice at Cargill Park. Matlock twisted her ankle and suffered an avulsion fracture. After being cared for at a local hospital, she was instructed to follow up with an orthopedic specialist and to receive physical therapy.

Matlock sued the City of Shreveport for negligence in maintaining the sidewalk on which she was injured. The trial court awarded her damages and allocated 100% of the fault for the accident to the City. The City appealed the judgment arguing that the lower court’s fault allocation was inappropriate and that it should not be held 100% responsible for the plaintiff’s injuries.

June 29, 2011

Battery Appeal from Wester Parish Examines Precedent for Intentional Torts

by Berniard Law Firm

Recently, Louisiana’s 2nd Circuit heard a civil suit in which the court examined the possible affirmative defenses for defendants of intentional tort cases when the actions of that defendant resulted from an aggressive plaintiff. In the case of Griffith v. Young, Mr. Young appealed the 26th district decision to grant Mr. Griffith a motion for partial summary judgment for his battery case against Mr. Young. After arriving at the plaintiff’s home, the defendant kicked down the plaintiff’s door and physically attacked him using a stun gun, which resulted in multiple injuries to the plaintiff. While these actions alone are shocking, the details are even more strange.

The defendant claimed that the attack stemmed from the plaintiff boasting about past sexual relations with the defendant’s wife and openly distributing provocative photos of her to others. The defendant claimed that the partial summary judgment was ruled in error because his behavior was the result of the plaintiff’s conduct. Further, he claimed that learning of the extramarital affair and the distribution of the pictures was enough provocation by the plaintiff to question the proportion of liability between the two parties, making summary judgment inappropriate. This appeal brings up questions about how liable an individual who is provoked to engage in a physical altercation is relative to the other participant, and how the law handles these “overly aggressive plaintiff” theories by defendants in intentional tort claims. We look at how the 2nd circuit views Louisiana’s current precedent on the issue.

One avenue found within the Louisiana courts, as discussed in Young, is the use of “provocation” as an affirmative defense. Louisiana jurisprudence follows a comparative fault principle for civil claims. Under such a principle, as enacted in La. C. C. art. 2323, the amount of damages recoverable by a plaintiff for any action resulting in injury or loss shall be made in proportion to the degree of fault attributable to that plaintiff. In an effort to promote such a doctrine, Louisiana no long utilizes the “aggressor doctrine.” Under such a doctrine, a plaintiff would be unable to file a claim if it was determined that the plaintiff’s immediate actions sufficiently provoked the defendants attacked. The Louisiana Supreme Court in Landry v. Bellanger eliminated the use of the traditional “aggressor doctrine” and now allows defendants to assert a defense of provocation, utilizing comparative fault principles to proportion liability, when the plaintiff’s actions toward the defendant or a third party immediately provoked the actions of the defendant. The more the plaintiff immediately provokes the defendant, the less liable the defendant would be for any attack that may follow. La. C. C. art. 2323(c) does create an exception to the provocation rule, where a defendant’s intentional tort that arose from a negligent plaintiff does not use the comparative proportionately reduction.