Articles Posted in Car Accident

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Location can be crucial in determining what law applies to a given situation. When an ambulance driver struck Mr. Dwight Johnson’s truck in the Marksville Taco Bell drive-through lane, Mr. Johnson and his friend were injured. His truck was damaged as well. Since this accident occurred in a parking lot, the general tort law of Louisiana applies to the case; the Highway Regulatory Act, while potentially persuasive, is not controlling in a situation like this. Relying solely on this source of law could prove detrimental to a party in a personal injury action. The defendants in this case, Smith v. Johnson, were unsuccessful for many reasons, not the least of which was that they failed to convine the court to place the blame for the accident anywhere but on themselves.

One plaintiff in this case, Mr. Johnson, testified that he saw the ambulance, noticed that it was stopped and noted that its brake lights were illuminated. Only then, according to his testimony, did he proceed. There was no testimony concerning Mr. Johnson’s view being obstructed, nor was there evidence that he was speeding presented at trial. Mr. Smith, the ambulance driver, testified that he felt the impact with the other vehicle rather than saw it and evinced that he was not paying attention to the situation in front of him while proceeding forward in his vehicle. The Highway Regulatory Act is not binding on activities in parking lots. It is, however, persuasive. In this case, it was persuasive against the defendants.

This case was not the first time that the Louisiana appellate courts have allocated fault in accidents that occurred in parking lots. The court mentioned two notable cases in its analysis in this case. In Gatheright v. State Farm Mut. Auto. Ins. Co., a standard of due caution was set that applied to all motorists proceeding in a parking lot. In that case, the plaintiff was traveling too fast and not applying her brakes. As a result, she was found to be 100 percent at fault for the accident giving rise to the case. The standard set forth in this case appears to have been refined and clarified in a line of cases that have come after it.

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Drunk people and gasoline mix very poorly. One such ill-advised combination occurred near Bastrop, Louisiana in 2009. The blend of impaired judgment and a highly combustible, but readily available, substance often end in tragedy. That was the case for a Mr. Ryan Brodnax. He and some friends were drinking beer and playing with gasoline near a fire that they started. Mr. Brodnax was injured when one of his friends, in a lapse of impaired judgment, tossed gasoline onto the bonfire. Unfortunately, the friend also inadvertently splashed Mr. Brodnax, resulting in catastrophe. The issue before the court was whether or not a convenience store that sold beer to a friend of Mr. Brodnax, a minor, could be liable for the terrible injuries that Mr. Brodnax suffered.

The convenience store in question sold beer to a Mr. Zachary Nolan. Mr. Nolan was only 19 years of age at the time. This 19-year-old ultimately tossed some gasoline onto the fire, but in so doing splashed Mr. Brodnax with the gasoline and causing Brodnax to go up in flames and suffering significant injury. There was little doubt in the mind of the trial court that such an establishment has a duty not to sell beer to those under the age of 21. The court was also easily convinced that Mr. Nolan had a duty to Mr. Brodnax not to cover him with gasoline. The court also granted Mr. Brodnax’s motion on the issue of medical causation. His injuries were a result of the chain of events that transpired that evening. What lost Mr. Brodnax his case against Super Mart, the convenience store, was that this type of injury was not a “foreseeable” consequence of the selling of beer to a 19-year-old.

A want of foreseeability places the type of injuries suffered in this case outside of the scope of the duty that Super Mart owed to the plaintiff. The appellate court pointed out that the extent of protection owed a plaintiff by a particular defendant is made on a case-by-case basis. The public policy behind this analysis is that defendants should not become insurers of all people against all harms. There has to be a logical nexus between the conduct of the defendant and the consequences that ensued.

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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.

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Louisiana law, in providing for uninsured/underinsured motorist (“UM”) coverage, reflects the state’s strong public policy of providing full recovery to victims who suffer damages in car accidents. If an at-fault driver lacks sufficient insurance coverage, the UM provision of the victim’s own policy will operate to make up the shortfall. UM coverage will be read into an insurance policy by default unless the coverage is rejected, and rejection “shall be made only on a form prescribed by the commissioner of insurance,” where the “form shall be provided by the insurer and signed by the named insured or his legal representative.” The following requirements must be met in order to create a valid rejection: 1.initialing the rejection the UM coverage; 2. printing the name of the insured or legal representative; 3. signing the name of the insured or legal representative; 4. filling in the policy number; and 5. dating the form. In cases of dispute, the insurance company bears the burden of proving that the insured rejected UM coverage, but a properly completed form “creates a rebuttable presumption that the insured knowingly rejected UM coverage.” A dispute over the waiver of UM coverage formed the basis of a case that came before Louisiana’s Second Circuit Court of Appeal earlier this year.

On July 21, 2008, Richard Gunter, a Bossier Parish police jury employee, was injured when the parish-owned vehicle he was riding in as a passenger was struck by another vehicle. Gunter filed suit against the driver of the other vehicle and her insurer, Gunter’s own insurer, and St. Paul Fire and Marine Insurance Co. Gunter alleged that St. Paul provided UM coverage for the police jury. St. Paul filed a motion for summary judgment, stating that the police jury had rejected UM coverage under its policy. The trial court granted summary judgment on behalf of St. Paul; Gunter appealed on the grounds that material facts about whether the police jury knowingly and properly rejected UM coverage were in dispute.

St. Paul’s position that the police jury rejected UM coverage was based on the fact that the parish administrator had completed a UM waiver form on September 27, 2007. Yet, the parish president’s testimony via affidavit revealed uncertainty as to whether the administrator had the authority to reject UM coverage, or whether such an action required approval by the parish finance committee. The court noted that “the record does not show that [the parish administrator] acted with the agreement, knowledge, or approval of the police jury in rejecting UM coverage for the policy period at issue.” Thus, “considering the strong public policy favoring UM coverage,” the court concluded that there were “genuine issues of material fact as to whether [the parish administrator] was authorized … to reject UM coverage on behalf of the police jury as its legal representative and whether the police jury knowingly rejected UM coverage for the relevant policy period.” Accordingly, the court reversed the trial court’s granting of summary judgment.

 

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Black’s Law Dictionary defines a common carrier as “A commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee. A common carrier is generally required by law to transport freight or passengers . . . without refusal, if the approved fare or charge is paid.” Common carriers include vehicles such as buses, planes, trains, and even taxis. Generally, the individual who is driving or running the vehicle is unknown to the passengers and those passengers are, in effect, putting their lives in the hands of a complete stranger. As a result, a common carrier has special, heightened obligations to the people they are transporting. Therefore, if someone is injured, then the common carrier is more likely to be held liable.

The danger involving public transportation is especially apparent in situations where there are children involved. For example, in a recent case involving the Avoyelles Parish School Board, they were held liable for an injury that a child sustained on a school bus. In this case, a child was injured as a result of the bus driver backing up into a wet, grassy area and getting the school bus stuck in the mud. The school bus had to be hauled out of the mud while the children were on it. The child involved injured his knee; he suffered from bilateral knee contusions after he hit his knee on the back of one of the chairs.

The school bus is considered under the definition of a common carrier even though the children do not directly pay for their transportation as they get on the school bus. As a result, law surrounding the common carrier doctrine governs the school bus case. Although Louisiana generally relies on codes to make up their laws, the common carrier doctrine exists even in this state.

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In order to sue, there are certain rules and procedures you must follow. There are not only federal rules; there are also state rules and local rules. All of these rules should be combined in order to correctly deal with the court system. In many cases, if you do not comply with these extensive rules, then the court will not hear your case. Obviously, these rules are important, but can be very time consuming to follow.

A recent case provides us with an excellent example of following the rules to the letter. In this case, an individual was killed on Highway 90 near Iberia Parish. His accident occurred on a temporary road near a construction zone; he was the only person involved in the accident. As a result, his mother sued for wrongful death. She listed Toyota Motor North American, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales U.S.A., Inc., and the Department of Transportation and Development.

One of the many procedures that must be followed is the service of process. Service of process involves giving the other party a letter or some kind of notification that they are being sued. Its purpose is obviously to inform the other party that they are being sued, but also let them know that they will need to respond and possibly go to court to defend the suit.

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Late in the afternoon of April 15, 2001, Geraldine Fruge and her eight-year-old granddaughter, Hannah Lejeune, were involved in an auto accident on US Highway 171 in Beauregard Parish. Fruge, who was driving southbound, lost control of her Pontiac and veered into oncoming traffic. Tragically, both she and Lejeune were killed when their car struck a Ford pickup truck heading northbound. It had been raining on and off throughout the day and Highway 171 was wet at the time of the crash. The victims’ family brought a wrongful death action against Louisiana’s Department of Transportation and Development (DOTD). The plaintiffs alleged that due to the highway’s construction, water was allowed to collect and pond on the roadway. They alleged that this condition amounted to a defect that caused Fruge’s car to hydroplane. After jury returned a verdict in favor of DOTD, the plaintiffs appealed.

The primary duty of Louisiana’s DOTD is to maintain the public roadways in a condition that is reasonably safe and which does not present an unreasonable risk of harm to motorists who exercise ordinary care. As discussed in this prior blog post, a plaintiff must prove the following elements in a tort action against DOTD arising from accident on the roadway: (1) that the condition that caused the damage was in DOTD’s control; (2) that the condition amounted to a defect that presented an unreasonable risk of harm; (3) that the DOTD was aware or should have been aware that the defect existed; and (4) that the defect was the cause of the plaintiff’s injuries. Upon review, the Court of Appeal for the Third Circuit began “with the second element: whether Highway 171 contained a condition that created an unreasonable risk of harm.”

The court reviewed the record and examined the testimony presented by eyewitnesses, experts, and accident investigators, much of which centered around the ridges or ruts in the travel lane that on the day of the accident held water on the road. The court noted that “it is clear that the jury could not have come to any conclusion other than the fact that the travel ruts on both lanes of Highway 171 were holding some water at the time of the accident. Thus, the pivotal question is whether this retention of water was a defect in the highway that created an unreasonable risk of harm.” After an exhaustive review of matters such as rut depth, roadway gradient, tire tread depth, and the physics of hydroplaning, the jury found that the condition of the road did not present an unreasonable risk of harm. “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Accordingly, the court held that “the evidence in the record provides a reasonable factual basis for the jury to have concluded that Highway 171 was not defective,” and affirmed the trial court’s judgment.

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When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant’s actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim’s injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

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On September 9, 2008, George Alonzo visited the Safari Car Wash on Veterans Memorial Boulevard in Metarie. While exiting the restroom in the car wash’s waiting area, Alonzo fell and sustained injuries. In a lawsuit against the carwash, he alleged that he slipped in a puddle that had been caused by employees’ tracking in water from the carwash facilities.

Under Louisiana law, Alonzo shouldered the burden of proving three key elements: 1) the condition that existed on the car wash’s premises presented an unreasonable risk of harm and that the risk was reasonably foreseeable; 2) the car wash either created or had actual or constructive notice of the condition which caused the risk; and (3) the car wash failed to exercise reasonable care in remediating the condition. Constructive notice means that the condition existed for such a period of time that it should have been discovered if the car wash’s employees had exercised reasonable care.

Alonzo’s complaint was dismissed by the trial court on the car wash’s motion for summary judgment. Alonzo appealed to the Fifth Circuit Court of Appeal for the State of Louisiana, which affirmed the dismissal. Upon review, the court noted that Alonzo failed to prove that an unreasonably dangerous condition caused his fall. During his deposition, when asked what caused his fall, Alonzo responded, “I guess the floor was damp. I didn’t really see it, because I–you know, I wasn’t looking down when I walk.” He stated further that he assumed the floor was wet, but that he did not look on the floor after the fall to see what he would have slipped on, even though his pants, socks, and shoes were wet. Alonzo also contended that the waiting area’s concrete floor was hazardous because there were no carpets or non-slip mats, and the car wash employees were permitted to enter the waiting area in wet clothes and shoes. The court concluded that “Alonzo… was unable to identify the condition of the floor in defendant’s premises on the date of the fall,” and the circumstantial evidence he offered was insufficient to meet his burden of proof.

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Death on the job is a sad reality that all too many Louisiana families face. When a loved one dies on the job, the victim’s family is not only left with an emotional hole, but a financial gap as well. Children, siblings and spouses who may have relied on the deceased’s income can face economic hardship. Fortunately, a wrongful death lawsuit can help ease this financial burden.

A wrongful death lawsuit seeks to recover damages a surviving family member or estate has suffered by the negligent death of a family member at the hands of another. Since these suits are brought on behalf of surviving family members, compensation cannot be recovered for injuries that are personal to the deceased. This means that pain and suffering and mental distress damages cannot be recovered through a wrongful death lawsuit. However, lost wages and other financial losses faced by the surviving family can be recovered.

A wrongful death is a death that is caused by the negligent act or omission of another. In certain circumstances, if the death is proven to be caused intentionally, a jury may be more likely to award a larger recovery. However, proving an intentional act can be difficult. This was illustrated recently in a case where a man was fatally wounded aboard a ship when he was struck by a crane load.

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