Articles Posted in Car Accident

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A recent sad case from the Second Circuit Court of Appeal demonstrates how difficult statute interpretation can be. Adrienne Breana Howard was a high school student in Rayville, LA. Struck by an oncoming school bus when she was either pushed or fell off the sidewalk and into the street, Breana tragically died from her injuries.

Breana’s mother filed suit against a number of parties, including specific employees of the Richland Parish School Board. The rationale was that Breana and another student, Courtney McClain, were in the midst of a physical altercation on the sidewalk at the time of the accident. The suit argued this fight which would have been easily visible to any school staff supervising the area. Moreover, Breana had been expelled from Rayville High School precisely because of her ongoing dispute with Courtney. Thus, teachers had notice of the relationship between Breana and Courtney. The suit thus alleged instructors on duty should have been on the lookout, seen the altercation and stopped it in a timely fashion.

The allegations brought included failure to supervise, failure to stop the fight in a timely manner and instead allowing the students to continue fighting uninterrupted, failure to adequately staff the bus area, failure to provide a safe environment on campus and failure to have designated bus safety areas. These are largely negligent omissions.

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Injury can occur on the job even when you least expect it. Kenneth Dale Kelly, a forklift operator for Lena, Louisiana, shipping company Boise Cascade, was injured on the job in August 2007. Unlike most workplace injuries that occur due to accidents, Kelly was intentionally injured by a coworker. Kelly was sitting at his desk with his feet propped up when an altercation over a work assignment with Dwayne Myers began. Despite Kelly’s pleas to be left alone, Myers approached Kelly, picked him up out of the chair, and threw him to the ground. Kelly, whose history of back injuries was well-known by all coworkers, including Myers, landed on his back and immediately began experiencing severe pain and discomfort. Boise conducted an internal investigation, and Kelly’s story was corroborated by several coworkers.

Kelly then filed suit against Myers, Boise, and Boise’s liability insurer, and the 5 day trial began on December 13, 2010. During trial, Kelly argued that Myers’s conduct was intentional and that Boise was therefore liable under the doctrine of vicarious liability. Kelly moved for a directed verdict, stating that reasonable minds could reach no other conclusion than that Myers had committed battery (an intentional tort), that Myers had committed this tort within the course and scope of his employment, that Kelly was not at fault for any part of the injury, and that Kelly was injured due to Myers’s conduct. The trial court confirmed the first two issues, and the jury, finding that Kelly was indeed injured but was 30% responsible, assessed $994,940.00 in total damages to Kelly and his wife. The trial court then increased Kelly’s damages for past medical expenses and past lost wages and granted Boise credit for previously paid workers comp benefits.

The defendants appealed, arguing, among other things, that: 1.) Boise should not be liable under respondeat superior for an intentional tort committed by Myers, 2.) the trial court incorrectly applied the Lebrane test, and 3.) the trial court erred in directing a verdict for battery.

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The arena of insurance law is a very confusing area in which, quite often, significant knowledge and experience is required for a quality outcome. It is important to know which types of coverage are available and applicable for different circumstances. Without knowing which coverage can apply and to what extent it can apply, an insured individual may find themselves without the coverage they thought they would have in the event of an accident. In some circumstances, insured individuals attempt to insure themselves in the event that the person who they get into an accident with is uninsured or underinsured. This has the result of allowing the insured to have access to a pool of money under all circumstances. Sometimes two different people may have uninsured coverage on the same vehicle or under the same policy. The impact of this kind of insurance largely depends on the relationship status of the parties. This type of a scenario was the focal discussion point in Hardy v. Augustine.

In this case, the Court discussed a way in which the plaintiffs attempted to add more claims to the general damages claim. Mr. Augustine was driving down the road and swerved into oncoming traffic. Mr. and Mrs. Hardy’s son was driving a motorcycle and was involved in a tragic head-on collision with Mr. Augustine after he swerved into oncoming traffic, which ultimately took his life. The tragic event led to Mr. and Mrs. Hardy bringing action against Mr. Augustine and his insurance company. The Hardys brought two distinct claims: they sued for past and future loss of love, affection, and companionship and they also sued for past and future grief and anguish. At the trial level, the jury awarded damages for each distinct claim. The jury awarded damages for both claims plus medical expenses and funeral costs.

Assuming that the amount of damages were going to exceed Mr. Augustine’s insurance coverage, the Hardys brought suit against State Farm, its own insurance company, under two different uninsured insurance policies. One policy was owned by Mr. Hardy and the other was owned by Mrs. Hardy. Each policy would pay up to $100,000 for each incident. State Farm paid $100,000 under the first policy, but refused to pay under the second policy citing the anti-stacking statute as a legal basis for denial of making a payout under both policies.

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In Louisiana, an employee can only be compensated for a work related injury through workers’ compensation. This means that if an employee is negligently harmed during the course of work, the only remedy available is what is provided through the workers’ compensation act. This is true unless the injury was as a result of intentional conduct. In the business world, many general contractors contract out work to subcontractors. Legally the issue in such a case becomes how to define who the employee is employed by in case of an injury. In Louisiana, there is a doctrine called the two contract theory. The basic outline of this theory is that in a situation where there are three parties in a contract which includes a general contractor, subcontractor, and subcontractor’s employee, the subcontractor’s employee is considered an employee of the general contractor. This mean that if the subcontractor’s employee is injured while performing work for the general contractor, the employee will only be able to receive workers’ compensation, not any damages based on negligence or any other branch of tort law. This may, at first glance, seem like a harsh result. However, in the modern business world, there are so many employment contractual relationships that liability must be limited to what is reasonable under the circumstances. The two contract theory should not be viewed as a way to protect business, but rather as a means for the judicial system to not be able to overreach.

In a recent case, Mason v. Waste Management Inc. Et Al., the law concerning employee rights is discussed in such a circumstance. Lamare Kindle and Wallace Bradley, were employed by Waste Management Inc. Mr. Bradley was employed directly by Waste Management. Mr. Kindle was employed by CPST Inc. CPST was a subcontractor which had contractually agreed to supply Waste Management with employees in an effort to help Waste Management collect trash it was required to contractually pick up. Waste Management had agreed to pick up trash in a contract with the Morehouse Parish Police Jury. So the contractual relationships are broken down as follows: Morehouse Parish Police Jury needed a company to come pick up trash in its area. Waste Management agreed to pick up the trash and signed a contract with Morehouse Parish to do so. Mr. Bradley was employed by Waste Management. In an effort to fulfill its obligation to Morehouse Parish, Waste Management needed to hire temp workers. CPST contractually agreed to supply Waste Management with employees. Mr. Kindle was employed by CPST.

Mr. Bradley was driving a truck registered to Waste Management. Mr. Kindle was a passenger in the truck driven by Mr. Bradley. Upon coming to a train track Mr. Bradley made the tragic mistake of crossing over the tracks as a train passed the intersection. Both Mr. Bradley and Mr. Kindle was sadly killed as a result of the collision with the train. Mr. Kindle’s parents sued Waste Management alleging that it was liable for any negligence that was attributed to Mr. Bradley while he was driving the garbage truck. The police report stated that the accident was likely the result of Mr. Bradley’s inattentivness. Waste Management argued that under the two contract theory, Mr. Kindle was its employee and because there was negligence and not intentional conduct, the only remedy available was workers’ compensation. Because Waste Management held a position as a general contractor in relation to Morehouse Parish, and CPST held a relationship with Waste Management as a subcontractor, the circumstance of the contractual relationships fell under the definition of the two contract theory. Therefore, Mr. Kindle was considered an employee of Waste Management and the only remedy available was workers’ compensation.

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The Berniard Law Firm is proud to be a New Orleans-based organization and nothing says NOLA better than Mardi Gras!

We wish all of our readers a happy, and safe, Mardi Gras holiday!

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A recent case within the Kentucky Court of Appeals demonstrates very extremely the need for quality counsel in all court proceedings. Regardless the subject or reasons you may find yourself in court, it is important that the lawyer you hire is not only able to represent you well in the courtroom and past it. While you would like to think the courts have the rule of law well established in the minds of their judges, a qualified attorney will also review the matters at hand to make sure all ‘facts’ are correct in the proceedings.

In the case of Bramer Crane Servs., LLC v. Structure Builders & Riggers Mach. Moving Div., LLC, a lien issue was reviewed by the superior court of the state. While the actual facts of the case are not important for this post, what is important is that the findings of the court were inherently flawed. Cited in the case was a fact that was severely outdated, as much as 20+ years and two revisions.

As the blog Zlien notes, instead of a clean finding, the court had lapsed in its research and failed to note updated law. The issue was that the ruling relied on judicial precedence rather than a review of legislation passed during this time. While one would like to consider the issue a simple lapse in judicial research, the fact remains that this unpublished decision could very easily have gone unnoticed without people stepping up.

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In a semi-recent Third Circuit Court of Appeal decision, the Louisiana Medical Malpractice Act was explored in order to determine whether the lower Vernon Parish District Court’s decision was appropriate. Despite the sad facts of the case, the appellate court may only overturn a trial court’s decision if there was clearly an error in the record. The appellate court analyzed the necessary requirements of the Louisiana Medical Malpractice Act in order to decide whether or not a doctor’s actions met the standard of care in treating a seriously injured young man. Medical Malpractice requires numerous steps for claimants to take before even reaching the court room. For instance, a person with a claim against a doctor, hospital staff, or the hospital itself has to first submit the claim to a medical review panel. This medical review panel was the primary focus for the appellate court, who had to establish whether or not the panel’s ultimate decision regarding a surgeon’s actions lived up the the applicable standard of care.

The underlying facts giving rise to the case occurred on August 11, 2002, when a young man entered the emergency room at Byrd regional Hospital in Leesville, Louisiana, after suffering a two and one-half centimeter knife wound to the left side of his chest. The emergency room staff noticed that the young man appeared alert despite his labored breathing and low blood pressure. The emergency room physician on duty suspected that the young man was suffering from the presence of air between the lung and the wall of the chest. A chest x-ray, an electrocardiogram (EKG) lab work, and an IV infusion of saline were ordered, and as such procedures were being performed on the young man, the emergency room doctor decided to telephone a general surgeon in private practice in Leesville, asking for his assistance. The general surgeon arrived at the emergency room and ordered a second x-ray in order to determine if there was any other issues involved with the young man’s condition. Throughout this time period, the young man’s blood pressure continued to decrease and his condition worsened. Over one hour later, the general surgeon determined that a large amount of blood had collected in the young man’s chest cavity, but he failed to confirm the emergency room doctor’s determination of a cardiac injury because the young man’s heart sounds were still normal and there was no swelling in the neck vein. The general surgeon then decided that the young man had to undergo surgery to repair what appeared to be a large hole in the left ventricle of the young man’s heart. However, at this point, the young man’s blood pressure plummeted, despite the doctor’s attempts at ordering blood transfusions. Within ten minutes after the young man’s third blood transfusion, the general surgeon made an incision into the left side of the chest cavity, he attempted to repair the laceration with sutures, but the young man continued to bleed at the point of injury. The young man went into ventricular fibrillation and as a result, passed away on the operating table. The young man’s parents sued the general surgeon, asserting that his failure to transfer their son to a hospital with a heart bypass capabilities and staffed with a cardiovascular surgeon constituted malpractice. Following the bench trial, the trial court ruled in favor of the general surgeon, relying on the Louisiana Medical Malpractice Act in order to support their decision.

The Medical Malpractice Act requires a number of steps to be followed in order for a claim to move forward for trial. Importantly, when exploring a medical malpractice issue, La. R.S. 40:1299 states, “[a]ny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law.” Thus, the first argument the plaintiff’s allege as error on the trial court’s part may have been in vain. They alleged that the trial court erred in admitting the medical review panel opinion into evidence and that this error requires the appellate court to undergo a new factual finding of the trial court’s decision. Following the Louisiana statute’s language, the opinions of medical review panels may be utilized by the trial court in handling a medical malpractice case. In fact, medical review panels are designed to review the evidence after any examination of the panel and conclude that either:

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At their core, car accidents are inherently unexpected events that only some of the time can be avoided. Two common causes behind avoidable accidents are obstructions in the roadway and distracted driving. While road crews do their best to clean up roads and highways of clutter, flat tires and other types of vehicle damage are unfortunately too common. Similarly avoidable, whether applying makeup, eating in the car, trying to look up sports scores or, perhaps most infamous, texting with friends, Louisiana drivers and those across the United States often try to multi-task to pack more activity in their day. The problem with this is that, all-too-often, carrying out tasks while driving can cause a collision that can have disastrous results, both financially and physically.

The North American International Auto Show opened to the public this week in Detroit and amidst all the new models of cars are a variety of technological features aimed to help drivers avoid catastrophe. While major manufacturers brought along show features, like the Ford VIRTTEX Driving Simulator that replicates distracted driver scenarios in a booth, a variety of parts and technology demonstrations show promise in accident avoidance.

One type of new age tech that is creating buzz is V2X technology, wherein cars are able to communicate and, thus, avoid collisions, signal road conditions and alert to traffic jams. DENSO, a Japanese automotive part company, recently revealed a myriad of technology, including their Active Safety systems, that use monitoring provisions to detect and regulate against car problems. Beyond detection, though, DENSO has prioritized human machine interface (HMI) technology that helps prevent accidents and maintain driver attention. In all, the NAIAS featured an assortment of safety efforts (see the NTSB Chairman’s summary here) all geared to give drivers a technological advantage.

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In the case of Johnson v. Smith, an ambulance driver drove his vehicle into the rear panel of another driver’s vehicle. This occurred in the drive-through lane of a Taco Bell. The defendant ambulance driver was determined to be at fault and lost at trial. On appeal, the defendants urged that certain pictures that had been deemed inadmissible at trial were crucial to their case. They claimed that it constituted reversible error on the part of the trial court not to admit the photographs in question. The appellate court disagreed and affirmed the trial court’s opinion.

The first reason for the appellate court’s decision on the matter of the admissibility of the photographs was that the photographs were not properly authenticated. While the law does not require photographs to be perfect representations of what they stand for, there is a standard that must be met. Photographs must be “sufficiently correct” before being admitted at trial. A trial court is permitted to admit photographs that have inaccuracies as long as the inaccuracies are explained. In this case, the police officer who was attempting to authenticate the photographs as taken by him may or may not have appeared in one of the photographs. This put the true origin of the photographs into question for the trial court. Because evidentiary rulings of a trial court are given great deference on appeal, the appellate court would only have disturbed this finding if it had found an abuse of discretion. Finding no such abuse of discretion, the court did not reverse on these grounds.

Another interesting reason for the appellate court’s decision in this case is that the court did not find that the photographs, if admitted, would have been at all helpful to the defendants who were urging the admission of those photographs. The court noted that the photographs may have been helpful to the plaintiffs in this case but found that the photographs would not have advanced the cause of the defendants. This type of harmless error is not going to result in a new trial for an aggrieved party. The appellate court found that the only real purpose that these photographs served was to establish the identity of the vehicles involved in this accident. None of the parties to the suit disputed the identity of the vehicles involved in the underlying accident.

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The civil justice system has a few bare minimum requirements that must be met before a party can be successful in any given litigation. In order for a party to be successful in a civil action, that party’s case must make sense to the court in terms of the party accused, injury presented, etc. Initiating action against the correct defendant seems like it would be a given, however that is not always the case. Ms. Charise Thomas was injured in a particular location, eventually suing the owner of the location, Mr. Antonio Harris, due to the incident. Ms. Thomas also sued that man’s father, Mr. Aaron Harris. Unfortunately for Ms. Thomas, she did not initiate action against the estate of one Mr. Thirkield J. Smith, the owner of the property on the date of her accident.

The trial court granted Aaron Harris a peremptory exception of prescription and Antonio Harrris a summary judgment. These two different types of relief are granted for different reasons, having similar results but different standards of review on appeal. Each requires different elements in order to be granted to the moving party. In this case, they were also both upheld by the appellate court.

An exception of prescription is granted by a trial court when a certain time period has elapsed between the incident giving rise to a particular suit and the filing of that suit. Since Ms. Thomas never ended up filing against the appropriate party, Aaron Harris’ peremptory exception of prescription was granted and upheld on appeal. The trial court’s decision is given a fairly high amount of deference on appeal and is reviewed under the manifest error standard. If the trial court is found not to have abused its discretion, its decision will not be overturned.

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