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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.

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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.

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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.

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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.

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On Saturday, July 24, 2010, tragedy struck in East Feliciana Parish as a 9-year-old girl died in a car accident. Reports state that the young girl, Tobiya Kato, was killed when the car driven by her mother, Jamet Kato, veered off the road and flipped before coming to a rest on its roof in a wooded area. This tragic event serves as a reminder of the importance of all passengers wearing seatbelts, especially young children seated in the back of a vehicle.

According to reports, the young girl, whom was seated in the back seat, was thrown from the vehicle during the accident due to not wearing her seatbelt. Police noted that in addition to the 9-year old girl, three other children, ages 6, 5, and 2, were also in the back of the vehicle, not wearing seatbelts, when the accident occurred. However, Jamet Kato, along with a 12-year-old sitting in the front seat, were both wearing their seatbelts at the time and only suffered minor to moderate injuries in the crash.

The sheer number of deaths that could be prevented by properly buckling up in a vehicle are staggering. According to NHTSA’s study, in 2008 there were 25,351 accidents involving the death of passengers in the United States. Of those, 12,865, or 50.7%, passengers were not utilizing safety restraint devices, such as a seat belt or car seat for younger children. The statistics for Louisiana residents are similarly shocking. Of the 669 passenger deaths in 2008, 59.2%, or roughly 400 passengers, died in accidents in which they were not buckled.

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In Pearl River on July 9, an 18-wheel truck blew out a tire and crossed over into oncoming traffic killing four people. The accident at the Louisiana/Mississippi state line occurred when the driver of the semi was driving northbound on I-59 and lost control of the vehicle after the tire blew out. The semi crossed the center median, and in what state police describe as an almost head on collision, the semi collided into a Dodge Ram pickup and led to both vehicles sliding off the road. While all four individuals in the truck were killed, the driver of the semi suffered minor to moderate injuries. The driver of the semi was from Montgomery, Texas and the four passengers in the Dodge Ram pickup were from Carriere, Mississippi. For his part in the accident, the driver of the semi was charged with careless operation and four counts of negligent homicide.

It is important to know that while negligent homicide is a criminal charge, suit may also be filed under a wrongful death cause of action for the four victims that were killed in the accident. Historically under common law, wrongful death was not available and only criminal law was an option. Under statutory law however, a person can be held responsible in civil court in addition to criminal court for wrongful death. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, “If a person dies due to the fault of another, suit may be brought […] to recover damages which they sustained as a result of the death.”

In civil court, the basis for wrongful death is negligence. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. If a claim is brought in negligence, the driver is held to a “reasonable person” standard of care. The question to ask is, “Would a reasonable person behave this way under the same or similar circumstances?”

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Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no “genuine issue of material fact” to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A “genuine issue of material fact” is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is “material” when it relates to an essential element of a plaintiff’s theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the “movant”). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant’s negligence or a plaintiff’s contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant’s allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father’s pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt’s truck. At least one of the logs shattered the driver’s side window and entered the cab of the truck, severely injuring Pruitt.

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Discovery is a phase of the litigation process that occurs once a complaint has been filed and answered but before the trial occurs. The purpose of discovery is for the litigants in civil matters to exchange information that is pertinent to the case. Each party can request that the other turn over documents, answer interrogatories (written questions), agree to admissions about facts not in dispute, or submit to a deposition. The parties are required to respond to these requests within a certain period of time. There are some importantexceptions to the materials that must be exchanged through discovery (for instance, privileged information is not subject to disclosure), but the intent is to level the playing field so that the parties can adequately prepare for trial.

The failure to respond to discovery requests in a timely manner can have very negative consequences for a litigant. When a party who has been served with a proper discovery request fails to respond, the serving party can ask the court to impose penalties. These include “dismissing the action or proceeding or any part thereof, or rendering a judgment of default against the disobedient party, or [entering] an order assessing costs and attorney fees … against the disobedient party and his attorney or both.” La. C.C.P. Arts. 1471, 1473. The dismissal of a case is “a drastic penalty and should be reserved for extreme circumstances,” but the party seeking to avoid sanctions or dismissal for failure to comply with a discovery order is required to show “that the failure was due to inability and not to willfulness, bad faith, or any fault.” Halley v. Guerriero, 577 So.2d 781 (La. App. 2d Cir. 1991).

The case of Jones v. LSU/E.A. Conway Medical Center (No. 45-410, La. App. 2d Cir. 2010) is illustrative. Rodney Jones was an inmate at the Dixon Correctional Center (“DCC”) in Jackson, Louisiana. On March 25, 2006, Jones allegedly injured his elbow and was admitted to the LSU/E.A. Conway Medical Center (the “Center”) for treatment. The attending orthopedist did not find anything wrong with Jones’s elbow and refused to perform arthroscopic surgery or request an MRI. In December of 2008, Jones filed a medical malpractice lawsuit against the Center which alleged that the Center’s staff deliberately failed to provide him with the medical care he needed for his elbow. Jones did not hire an attorney and represented himself in the matter.

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Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no “genuine issue of material fact” to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A “genuine issue of material fact” is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is “material” when it relates to an essential element of a plaintiff’s theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the “movant”). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant’s negligence or a plaintiff’s contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant’s allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father’s pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt’s truck. At least one of the logs shattered the driver’s side window and entered the cab of the truck, severely injuring Pruitt.

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A very recent Louisiana Court of Appeals decision arises from a lawsuit filed by Lloyd and Dotris Bordelon to recover damages stemming from a pedestrian-vehicle accident that followed a vehicle-vehicle collision.

The first accident occurred in September 2003, when John Vercher and his wife were going north on Highway One in Avoyelles Parish to Mr. Bordelon’s house. Mr. Desselle was also going north on the highway and was attempting to pass the Verchers, unaware that Mr. Vercher was going to turn left into Mr. Bordelon’s driveway.The vehicles collided. Mr. Bordelon came out of his house to see what happened. After determining no one was hurt, Mr. Bordelon walked out to the highway to direct traffic. Mr. Bordelon reported that he heard someone asking him to move the vehicles, at which point he turned around and said they should not be moved. When Mr. Bordelon approached Mr. Vercher’s car, it lurched forward and hit Mr. Bordelon, throwing him into the post of his carport and an aluminum building. Mr Bordelon sustained injuries to his brain, face, and stomach. The Bordelons filed suit against both Mr. Vercher and his insurer and Mr. Desselle and his insurer for injuries he sustained as a result of the initial crash and resulting collison. The lawsuit against Mr. Vercher was dismissed prior to trial. After trial the court found that Mr. Desselle was one hundred percent at fault for the collision between him and Mr. Vercher and that both Mr. Desselle and Mr. Vercher were fifty percent at fault for Mr. Bordelon’s injuries, ordering Mr. Desselle and his insurer to pay the entire $50,000 with no reference to the assignment of fault. On the first appeal, the trial court executed a judgment allocating fault and damages equally between Mr. Desselle and Mr. Vercher. Mr. Desselle argued in this appeal that the trial court should not have found Mr. Desselle even fifty percent at fault for Mr. Bordelon’s injuries.

The defendants reasoning for reversing the judgments include the separate nature of the two accidents, the time and distance between them, and the fact that Mr. Desselle owed no duty to Mr. Bordelon.

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