Strict Liability

February 6, 2020

Alcohol Establishment: Responsibility for Patrons

The majority of states have what are known as “dram shop laws”. These laws address liability if someone is injured by a drunk person after consuming alcohol at an establishment. Most of these laws allow for the bar or other entity that served alcoholic beverages to be sued. Louisiana’s version of the law is quite unique, actually doing the opposite. The bar or other business must meet certain requirements to be afforded this essential immunity. The Fifth Circuit Court of Appeal in Louisiana recently considered such a situation.

In 2013, Arthur Tregre, Jr., the plaintiff, was driving in Lake Charles Parrish. The car ahead of him, driven by Dallas Veillon, was making a left turn when it was struck by a police car coming the opposite direction. This caused the same police car to crash into Mr. Tregre, killing the officer and injuring Mr. Tregre. Mr. Veillon had been intoxicated at the time of the accident. In fact, he had been just forcibly removed from the premises of a nearby bar, Boogie’s Lounge. Mr. Tregre sued the Sheriff, the bar and its bartender, and the bar’s insurance company. The officer’s widow was also a plaintiff in the case. Both the insurance company and Boogie’s Lounge filed summary judgment motions to have the case dismissed. In 2016, the trial court granted these motions, dismissing the claims against the bar and its insurer. Mr. Tregre, as well as the officer’s widow, appealed.

The law in Louisiana, fittingly called the “Anti-Dram Shop Act”, serves to remove the burden from establishments that serve alcohol. The issue for the Fifth Circuit was whether or not there was any reason this law should not be applied. The law in question specifically provides that no person or employee of the person that holds a valid liquor permit and serves alcohol is liable for any injuries caused by a customer while off the premises. La. R.S. 9.2800.1. It also states that the proximate, or legal, cause of any such injury is the action of the intoxicated person. The accident occurred on a nearby road, well outside the premises of Boogie’s. Still, Mr. Trevor argued that the employees of Boogie’s should have known better than to eject Mr. Veillon to the road where he would most likely drive and cause an accident. Here, the Fifth Circuit applied the Anti-Dram Shop act, stating that it was Mr. Veillon’s actions of imbibing in large quantities of alcohol and then choosing to drive that caused the accident. Indeed, the law in Louisiana was enacted in order to put the blame on the intoxicated person. Aucoin v. Rochel, 5 So.3d 197, (La. Ct. App. 2008).

January 3, 2020

Asbestos Lawsuit Demonstrates How to Remove a Case to Federal Court

by Berniard Law Firm

architect-architecture-blueprint-build-271667-1024x678 Sometimes, whether your case takes place in federal court or state court may be out of your hands entirely. Other times, it may be possible for the case to take place in either court. In such situations, it is important to understand possible differences and advantages between state and federal court. When one party wants the case in federal court and the other wants it in state court, things can get tricky, as a 2017 case from the United States Court of Appeals for the Fifth Circuit shows.

Plaintiff Howard Zeringue claimed he was exposed to asbestos in 1952 when he was deployed with the United States Navy. Though he did not provide a time period, he also alleged that he was exposed to asbestos when he worked a job selling insurance in Avondale Shipyard. He filed a lawsuit against Crane Company (“Crane”) and twenty others in state court in Louisiana. Zeringue alleged all were liable for asbestos-causing injuries based on claims of strict liability, negligence, and failure to warn; but specifically stated that Crane and twelve out of the twenty-one defendants were responsible for handling and sending the asbestos-containing products to the places he was exposed.

Crane removed the case to the Eastern District of Louisiana in accordance with the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). Crane claimed that the products it provided for or made for the Navy were subject to the Navy’s requirements and federal officers had discretion about whether the product had asbestos and if it needed a warning label. With its removal petition, Crane supplied affidavits and sample military specifications to show that all asbestos-containing products could not be used in Navy ships without the Navy Machinery Inspectors determining they met the specifications.

November 16, 2019

When Can a Grocery Store be Held Liable for Its Products?

by Berniard Law Firm

nrd-D6Tu_L3chLE-unsplash-1024x768 Going to the grocery store is a frequent occurrence for most of us. However, most people are probably not aware of when a grocery store can be held liable for selling unsuitable products.

On February 15, 2013, Elton Simmons purchased a package of fruit cups from Brookshire Grocery, a Shreveport grocery store. That night Simmons ate a fruit cup, and woke up the next morning with stomach pain. At this point he ate another one to “settle his stomach.” At around 7:00 a.m. Simmons opened the rest of the fruit cups and noticed they had mold growing inside of them.

In the initial trial, Simmons alleged negligence for “(a) selling products that were unfit to eat, (b) not ensuring that all products were fit for their purpose, (c) not preventing the sale of dangerous products, and (d) other acts of negligence.”

October 25, 2019

Liability for Dog Attack in a “No Pets” Apartment Complex

by Berniard Law Firm

animal-bark-black-wallpaper-2238-1024x683 Imagine you sign a lease at a complex that does not allow pets, but then you walk outside your home and are attacked by a dog. Who is liable? The owner of the animal, the landlord for not preventing the animal from being on the premises, or both? In most states, Louisiana no exception, dog owners are strictly liable for injuries to persons and property caused by their animal. La. C.C. art. 2321. Strict liability means that the owner of the animal is liable for damages caused by the animal regardless of if the owner knew of the dog’s vicious propensity or not. To prove landlord liability, as in the current case, the plaintiff must show that the landlord had actual knowledge of the dog’s vicious propensity to make a successful claim for damages caused by a tenant’s dog against a landlord. Compagno v. Monson, 580 So.2d 962 (La. Ct. App. 1991).

In this case, Ms. Coburn was attacked by a dog owned by Ms. Dixon when they were both living in a complex where Mr. Bernard was the landlord. Ms. Coburn sued Mr. Bernard alleging that he failed to warn of the dangerous propensities of the dog and failed to eliminate the danger of the dog. The trial court granted summary judgment in favor of Mr. Bernard because he provided an affidavit that he did not allow dogs on the premises pursuant to the lease agreements and was unaware of the violent propensity of the animal.

On appeal, Ms. Coburn argued that Mr. Bernard should have reasonably known that Ms. Dixon had a vicious dog on the premises, as he owned and ran a restaurant that many cops in town frequented. Thus, he should have been aware that the police had been called to the premises on numerous occasions because the dog was barking or roaming loose.

October 15, 2019

Don’t Hesitate: Lawsuit Dismissed After Six Years For Failure to Prove Defendant Jointly Liable

by Berniard Law Firm

Navigating a lawsuit is a difficult task. Not only do you have to prove the merits of the case, but you also have to navigate the judicial system’s complex procedural requirements. Even if your case seems likely to succeed on the merits, failure to comply with procedural requirements can leave you without recourse.

On March 22, 2001, the Meladines’ boat struck an unknown object submerged at Lake Hermitage while they were fishing in the early morning. In 2002, the Meladines sued six companies in a lawsuit for personal injuries. In the lawsuit, the Meladines alleged that the companies were the owners and/or operators of oil and gas platforms and pipelines located in the Lake Hermitage area. The Meladines alleged that their boat collided with what seemed to be an unmarked, old gas pipeline. They alleged that the defendants had failed to adequately mark or maintain the pipeline or warn of its potential harm. All six of the defendants denied having any ownership interest or control of the object that struck the plaintiffs’ boat.

Over the next three years, the plaintiffs dismissed the claims they had brought against all the defendants except Stone Energy and Chevron USA. In 2007, the plaintiffs added Jefferson Lake and Plaquemines Parish Government (“PPG”) as defendants. A year later, Jefferson Lake filed an exception of prescription because it had not been renamed as a defendant until over six years since the accident. Jefferson Lake also argued that prescription was inappropriate because there was no solidary liability between Jefferson Lake and any original defendants. The case then proceeded to trial.

October 10, 2019

Broussard Used Car Dealership Not Liable in Car Accident For Failing to Check Buyer’s License Prior to Purchase

by Berniard Law Firm

asphalt-auto-automobile-164634-1024x768 Can a used car dealer be held liable in a car accident if they failed to check the car purchaser’s license and insurance? According to the Third Circuit Court of Appeal of Louisiana, the answer is no. Ms. Mire purchased a used vehicle from Blake’s Auto Sales in Broussard, Louisiana. Ms. Mire was able to purchase the vehicle by presenting a valid state ID, but was not required to provide proof of insurance or a valid driver’s license. On July 2014, Ms. Mire allegedly caused a car accident that resulted in the death of Mr. Anthony who worked for the Iberia Public Works Department and was installing a sign on the shoulder of the roadway.

Mr. Anthony’s widow filed suit and named Ms. Mire, as well as Blake’s Auto Sales. She claimed that the used car dealership was liable for failing to certify that Ms. Mire had a valid driver’s license and/or valid insurance coverage when she purchased the car. The car dealer filed a peremptory exception of no cause of action with was granted. The trial court dismissed her claims against the car dealer, with prejudice, and assessed the costs to Mrs. Anthony and she appealed.

Mrs. Anthony claims that the trial court erred when it determined that there was no cause of action against the used car dealer, and the Louisiana Third Circuit Court of Appeal disagreed. Louisiana law excludes used car dealers from the provisions of the statute unless the car deal is involved in obtaining the license for the vehicle to the customer. See La. R.S. 32:862(B)(2). Since there is no evidence that Blake’s provided this service for Ms. Mire, they fell under the exclusion in the statute. Furthermore, the Hodges decision by the Louisiana Supreme Court that was cited doesn’t provide for remedy against the used car dealer so the trial court was correct in dismissing for no cause of action in regards to proof of insurance. See Hodges v. Taylor, 101 So.3d 445, 447 (La. 2012). Regarding the car dealer’s failure to verify Ms. Mire had a valid driver’s license, there is no statute or jurisprudence that requires a valid driver’s license in order to purchase a vehicle, so the trial court was correct to dismiss the case for no cause of action.

October 5, 2019

Supermarket Not Found Liable for Bus Stop Stabbing

by Berniard Law Firm

back-black-and-white-bus-stop-652-1024x683 No one likes running errands – especially when you experience bad customer service. However, when bad customer service possibly leads to an assault, how liable is the company? This is a question the Court of Appeal Fourth Circuit of the State of Louisiana recently answered.

On April 12, 2012 David Robertson was standing in the checkout line at the North Broad Supermarket in New Orleans to purchase a cold drink when he realized he was a few cents short of the total. Mr. Robinson then turned to another customer he claimed to have known personally to ask for the difference. This is when cashier Ky Quang Nguyen became involved. Mr. Nguyen accused Mr. Robinson of panhandling and asked that he leave the store – this is when Mr. Robinson allegedly said “make me” and a physical altercation between the two broke out. While this altercation initially started in the marketplace, it eventually escalated into the street. When the altercation ended, Mr. Robinson claims he went to the bus stop across the street from the supermarket where an unidentified employee of the supermarket stabbed Mr. Robinson in the back of the head. After the attack, Mr. Robinson was transported the LSU Medical Center where he received eight staples and had to stay the night. Because of this incident. Mr. Robinson claims he suffers from sharp, shooting pains in his head and continues to have reoccurring nightmares.

Following the incident, Mr. Robinson brought charges to the supermarket and a bench trial was held on November 10, 2015. At this trial, Mr. Robinson argues that Mr. Nguyen was the initial aggressor of the altercation and that any action Mr. Robinson took was in self-defense. Moreover, Mr. Robinson insists he was not panhandling and that the person who stabbed him was either an owner or an employee of the supermarket. However, Mr. Robinson conceded that Mr. Nguyen was not the person who stabbed him, he could not identify who could a have stabbed him, and Mr. Robinson did not introduce any evidence or witnesses to corroborate his claim that he was stabbed by an employee of the supermarket.

March 13, 2017

In Personal Injury Case Out Of Lake Charles, Plaintiff’s Inconsistent Testimony Fails to Convince Court of Appeal

by Berniard Law Firm

out-of-place-1184032-1024x590 It is common for Louisiana residents who are injured due to another person’s negligence to seek financial compensation through a personal injury lawsuit. Typically, these types of lawsuits will pursue compensation to cover medical expenses that are incurred by the victim for the treatment of the injury they suffered, among other damages. That is exactly the approach that Destiny Guidry decided to take after she claimed that she was injured in an incident at a grocery store in Lake Charles back in 2011.

According to Ms. Guidry, she was injured on June 14, 2011, when she was struck by a stock cart that was loaded with canned goods. The stock cart was under the control of a store employee, Kenneth Wyant. Mr. Wyant did not deny that there was an incident in which he claimed he had to stop the stock cart suddenly, resulting in some cans potentially hitting Ms. Guidry on the leg. But, he did deny that Ms. Guidry was injured in any significant way. Ms. Guidry, on the other hand, claimed that she suffered a serious injury to her ankle in this incident, resulting in a trip to the emergency room four days later on June 18, 2011, and again on June 28, 2011. Then, in March of 2013, 21 months after the incident in the grocery store, Ms. Guidry ultimately had surgery on her ankle. Ms. Guidry filed a personal injury lawsuit against the grocery store and the store employee, Mr. Wyant. The case was tried before a jury.

The first question for the jury was whether the store employee, Mr. Wyant, was at fault for the incident that occurred at the grocery store on June 14, 2011. The jury answered “no” to this question, ending deliberations. Before the case was dismissed with prejudice, i.e., the claim was foreclosed from ever being brought in court again, Ms. Guidry asked the Trial Court for a “judgment notwithstanding the verdict.” This is a legal procedure whereby a party asks the court to enter a judgment that is different from the jury’s conclusion on the basis that the jury made a manifest error in reaching its conclusion. In this case, Ms. Guidry claimed that the manifest error was the jury’s finding that Mr. Wyant was not at fault for the incident on June 14, 2011, especially since Mr. Wyant had not denied that some type of incident had in fact occurred, which was supported by corroborating testimony. The Trial Court denied Ms. Guidry’s motion and she appealed to the Louisiana Third Circuit Court of Appeal.

January 16, 2014

Prescription an Integral Element of Lawsuits After Wrongful Death

by Berniard Law Firm

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

January 12, 2014

Personal Jurisdiction Reviewed in Case With International Implications

by Berniard Law Firm

The U.S. Court of Appeals for the Fifth Circuit affirmed a judge’s dismissal of the People’s Republic of China and a Chinese company, Xiamen, from litigation in the U.S. District Court for the Eastern District of Louisiana. The appeals court agreed with the trial court that the federal judiciary lacked personal jurisdiction and subject matter jurisdiction over the Chinese company and the PRC, respectively. The result was that the district court could not enforce an arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.

The underlying issue is a contract dispute between Covington Marine Corporation and Xiamen Shipbuilding. Pursuant to their contract’s arbitration clause, the dispute went to arbitration under the rules of the London Maritime Arbitration Association. The tribunal found neither side liable, but issued a separate award requiring Covington to pay 40% of the costs and Xiamen 60%. Xiamen then filed a petition in a Chinese court to have the liability award recognized and enforced. Covington did the same with the costs award.

Meanwhile, Covington appealed to the English High Court. The High Court found Xiamen liable, ordered Xiamen to pay 100% of the costs to Covington, and sent back the case to the tribunal for modification of the award. The arbitral tribunal changed their ruling and Covington petitioned the Chinese court to recognize the new awards.