Car Accident

July 2, 2013

Summary Judgment and its Significant Impact in the Judicial System

Is it possible for your case to be over even before it begins? Yes … well, sort of. Through what is known as summary judgment, it is possible for a court to render a decision in favor of one party and against another before there is a trial on the issue. You may be wondering, “What is the point of this?” and “Isn’t it only fair that I get my day in court?” Essentially, the purpose of summary judgment is to avoid unnecessary trials and litigation. It is important to note that although orders for summary judgment are common in civil cases, they do not apply in criminal cases because a criminal defendant has a constitutional right to jury trial.

According to a report researched by the Federal Judicial Center, 26% of all plaintiffs file motions for summary judgment, whereas defendants file 71% of all summary judgment motions. A judge may also on his or her own determine that summary judgment is appropriate. Nonetheless, orders granting summary judgment for defendants can have detrimental effects on plaintiffs who have sustained injuries, financial hardships, and who may have even lost a loved one. The adversity associated with orders of summary judgment can be shown in a recent case out of Jefferson Parish. Favre v. Boh Bros. Construction Co., L.L.C.

In Louisiana, summary judgment is appropriate if the declarations under oath, depositions, admissions of fact, and legal authorities show that there is no genuine issue as to a material fact and the party requesting the order is entitled to a judgment as a matter of law. A fact is considered to be a material fact if it is needed to prove one party’s case, or establishes a point that is crucial to a party’s position and success. Also, a genuine issue is an issue where two reasonable parties disagree. So, for example, if two parties could reach only one conclusion as to the dispute, then there is no need for a trial and summary judgment is appropriate.

June 30, 2013

Car Accident Caused by Slow Merge Raises Legal Issue of Sudden Emergency Doctrine

by Berniard Law Firm

Car accidents can be difficult to navigate because of conflicting evidence, opinions and the fact the circumstances often lead the people involve rattled and unable to recall facts clearly. In a recent case, Bethany Dixon appealed a trial court judgment against her involving a vehicular accident that occurred on I-20 near Acadia in Bienville Parish. In part because Ms. Dixon could not recall exactly how the accident occurred, the court relied on the evidence put forth by the defendant, Charles Tucker, who rear-ended her as she merged onto I-20 from an on ramp. Mr. Tucker believed Ms Dixon was travelling at around 30 mph while he was travelling at the speed limit, 70 mph.

The trial court relied on the sudden emergency doctrine, which states that when a driver merges onto a limited access highway, the driver it merges in front of will not be liable if the lead driver created a hazard that could not be avoided. Here, the court accepted the narrative that Mr. Tucker rear-ended Ms Dixon’s vehicle because Ms. Dixon failed to signal or yield to oncoming traffic, and Mr. Tucker did not have enough notice to avoid the hazard Ms Dixon created. In addition, an eighteen-wheeler in the lane next to him prevented him from switching lanes.

Appealing a ruling is a risk, and is often a question of strategy. In this case, Ms. Dixon was unable to win the appeal in part because the Appellate Court was deferential to the trial court. Ms. Dixon claimed that the trial court erred in its factual findings, rather than legal findings, so the Appellate Court could not simply consider the case anew from start to finish. Instead, the Appellate Court could only reverse the lower court’s finding if the lower court did not have a sufficient factual basis for its findings. Here, the Appellate Court found a reasonable factual basis for the trial court’s outcome, and upheld its decision.

June 22, 2013

Prescription Exceptions Exist for Multitude of Cases

by Berniard Law Firm

Diving into complex legal issues is difficult but necessary. One particular example is the idea of prescription, or timing involved in filing a case. The exception of prescription is a limit on actions that may be brought, and has proven to be a successful defense. Peremptory exceptions may be asserted when the time for filing the type of claim involved has expired prior to the filing of the petition. The rules of prescription and peremption are set forth in the Louisiana Civil Code. This defense may be pleaded at any stage in the trial court proceeding prior to a submission, the burden is generally on the asserting party, and fact findings are reviewed under the error-clearly wrong standard.

An application of this defense can be seen in a recent case. Five inmates at the Louisiana Department of Public Safety and Corrections (DPSC) filed suit against the DPSC following an automobile accident, claiming negligence and failure to ensure medical treatment for injuries sustained. The defendants filed exceptions of lack of subject matter jurisdiction, improper venue, and prescription. The plaintiffs subsequently filed an amended petition asserting that the Corrections Administrative Remedy Procedure was unconstitutional.

The trial court found that the plaintiff’s claims had prescribed, with the exception of one plaintiff (whose prescriptive period was suspended from the time he filed his grievance until an agency decision was delivered). “Delictual actions are subject to a liberative prescription of one year [which] . . . commences to run from the day injury . . . is sustained.” “Prescription is interrupted when . . . the obligee commences action against the obligor in a court of competent jurisdiction and venue. If the court or venue is improper, then prescription is interrupted only as to a defendant served within the prescriptive period.

June 17, 2013

Appeal Necessary in Car Accident Case Where District Court’s Finding of Fact Strays

by Berniard Law Firm

On a June night in 2006, Jeryd Zito was driving on a highway going through Plaquemines Parish when an ambulance appeared seemingly out of nowhere. Zito swerved to avoid it, but was not fast enough, hitting the left back corner and the left side of the ambulance. After the accident, Zito sued the owner of the Ambulance, Advanced Emergency Medical Services, Inc., and its insurer, to recover for the damage caused by the accident. While this may seem backwards, the person causing an accident suing, but the issue is much more complicated.

Zito claimed the accident was Advanced’s fault because the drivers were negligent in not taking the proper precautions to warn oncoming traffic that the ambulance was broken down on the side of the road. During the trial, the big issues were how far into the right lane, if at all, the ambulance was, and if there were any warnings on it, such as reflective tape, to signal to oncoming drivers there was something in the way. The rationale is that, while the vehicle was off to the side of the road, people are not expected to see in the dark or sense a blockage up ahead versus a general expectation of reasonable efforts being made to avoid accidents.

The trooper who investigated the accident testified that based on skid marks, the ambulance was parked five feet from the right lane, it was covered in reflective tape when he got there, Zito told him that he (Zito) was on his cell phone at the time of the accident and that there was no evidence that Zito tried to break before he hit the ambulance. The trooper issued Zito a citation for careless operation of a vehicle, which Zito paid without dispute.

June 11, 2013

“Egg-Shell Skull” Rule and Personal Injury Claims

by Berniard Law Firm

It may be common sense that a person is responsible for consequences caused by their actions. One reflection of this common understanding in legal principles, referred to by lawyers as the “Egg-Shell Skull” Rule, may lead to financial burdens unexpected by people who can be deemed responsible for the events. To understand this Egg-Shell Skull Rule, it is first necessary to know the importance of “causation” in pining legal liabilities to a person.

In situations where a person’s behavior has caused someone else to suffer loss or harm, causation is a crucial element of liability because it connects an injury to a responsible party. This makes sense because if A hit B in the arm and B suffered a fracture, naturally A would be responsible for the injury. Yet if A threw a light kick at the shin of B, who, unknown to A, had a series condition that set of a chain of events that finally resulted in B unable to use his leg at all, A may find herself held responsible for this grievous injury.

The Egg-Shell Skull Rule literally means that if B had a skull as delicate as that of the shell of an egg, and A, unaware of this condition, injured B’s head, causing the skull unexpectedly to break, A would be held liable for all damages.

June 5, 2013

Understanding Duty Important in Worker’s Compensation Claims, Civil Suits

by Berniard Law Firm

To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker’s compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker’s compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker’s compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker’s compensation program should be handling your claim, not the court.

June 4, 2013

Legal Concepts: Louisiana Code of Civil Procedure and Hearsay

by Berniard Law Firm

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms

Assertive Conduct:

May 31, 2013

Tractor Accident Leads to Question of Responsibility for Dead Tree Causing Incident

by Berniard Law Firm

In 2009, a Louisiana man was driving a tractor/trailer in Caddo Parish when he suddenly hit a large pine tree that had fallen across the road. Despite having already made this same trip on the same road several times that day, since the last time he had made the pass, the tree had fallen in the road. Unfortunately, the man did not have enough time to see the tree and stop his vehicle before driving into it. As a result of the accident, the man suffered serious neck injuries.

In light of this injury, who was to blame and what action could be taken? The man sued the owners of the property from which the tree fell, State Farm and the Parish. The claims against the owners and State Farm were settled, but the claim against the Parish went to court. Ultimately the trial court ruled against the man in favor of the Parish.

Taking the case further, the man appealed, arguing that the trial court had erred in three main regards. These errors had to do with admissibility of evidence, knowledge of the hazardous condition, and corrective action.

May 29, 2013

Pothole Blamed for One-Car Accident in East Carroll Parish

by Berniard Law Firm

After being involved in a one-car accident in 2008, a Louisiana woman sued East Carroll Parish Police Jury, claiming that a pothole on Perry Road resulted in her accident. She later amended her claim to state that other factors had further contributed to her injury and that the road was defective. In response, the Police Jury filed a motion for summary judgment, and the hearing on the matter was set for August 1, 2011.

Because the hearing date was set for August 1, 2011, this meant, according to Louisiana law, that if the woman wanted to file an opposition to the motion for summary judgment, she had until eight days before the already set hearing date to do so. This deadline for filing the opposition materials was then set as July 24, 2011. However, July 24th came and went, and no opposition materials were filed on the plaintiff’s behalf. On July 29, 2011, three days before the hearing, the plaintiff tried to move the hearing back, claiming that she needed more time for discovery. When the day of the hearing came about, the court pointed out that the plaintiff did not file her motion for continuance until after the eight-days before the hearing deadline.

At the hearing, the court did finally grant the motion for continuance, despite the fact that it was filed late, and the hearing was rescheduled for September 20, 2011. The plaintiff was told that any opposition had to be filed on or before September 6, 2011 (even though this would be more than eight days before the newly scheduled hearing). Basically, the court had offered the plaintiff a 45-day extension of her deadline, from July 24th to September 6th.

May 17, 2013

Understanding Comparative Fault/Negligence and How it Impacts Judgments

by Berniard Law Firm

You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.

In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:

In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …