Civil Matter

July 19, 2010

Crash on Highway 117 Results in Damages for a Lost Husband and Father

A two-car collision on Highway 117 in Natchitoches Parish led to a lawsuit and an appeal regarding the amount of damages awarded, among other things. On the morning of October 25, 2002, Edward Raymond was travelling north on Highway 117, returning from work. He was a firefighter at Fort Polk. That same morning Stephen Taylor was traveling south on the same highway. Taylor was on his way to New Orleans to get a sea card to work on tugboats. He was detouring to his girlfriend’s mother’s house in Leesville to pick up his birth certificate. It was raining that morning and during Taylor’s maneuver to pass a loaded log truck, he saw the headlights of Raymond’s vehicle. Taylor attempted to drive onto the shoulder to avoid a collision, but Raymond also tried to avoid a wreck by driving onto the shoulder; the cars crashed head-on and Raymond died as a result of the accident. The site of the crash was in a no-passing zone. The jury determined that Taylor was 75% at fault and the Louisiana Department of Transportation and Development (DOTD) was 25% at fault (mostly for failing to place a no-passing pennant sign at the start of the no-passing zone where the accident occurred).

The jury awarded the following damages

(1) $5,421.20 for funeral expenses; (2) $1,904.00 for medical expenses; (3) $1,514,747.79 for loss of past earnings, future earnings, and earning capacity; (4) $50,000.00 for the conscious pain and suffering and anguish of Mr. Raymond; (5) $1,500,000.00 for the damages suffered by Barbara Raymond for the loss of her husband; and (6) $750,000.00 to each of [Raymond’s] four children for the loss of their father.

July 17, 2010

The Need to Hire an Attorney For Car Accidents Illustrated in Recent Case

by Berniard Law Firm

Victim John Deshotels learned the hard way what happens when you donÕt have a an attorney represent you in an accident injury claim. He took his case to trial unrepresented and lost. Even after getting an attorney the damage was done and he lost again in a recent Court of Appeals decision. Plaintiff John Deshotels appealed the trial courtÕs granting of involuntary dismissal of his case against Nicholas J. Fontenot and his insurance company. Deshotels alleged he was rear ended by a car driven by Fontenot and injured. The case went to trial and following Deshotels’ presentation of his evidence, the insurance company moved for involuntary dismissal pursuant to La. Code Civ.P. art. 1672 (B).

Louisiana Code of Civil Procedure Article 1672 (B) states: that when there is no jury, a party When there is no jury, an action tried before the court may be over rather quickly. After a plaintiff has finished presenting their evidence, either party may then ask for a dismissal of the case based on the ground that the plaintiff has not shown any right to relief. The judge must rely on both law and the facts of the case that have been presented at that time. Then, the court is permitted to examine the facts currently presented and make a judgment against the plaintiff and in favor of the moving party. Or the court may decline to make any judgment on the matter until the close of all of the evidence.

Trial courts have discretion to grant an involuntary dismissal if, after weighing the evidence, they determine the plaintiff has not proved their claim by a preponderance of the evidence, or the more likely than not standard.

July 15, 2010

Traffic Circle Plan Chosen for Alexandria Intersection to Increase Safety

by Berniard Law Firm

According to a report from talkofthetown.com, a low-speed traffic circle, or “roundabout,” is slated to be installed at the end of Jackson Street Extension in Alexandria. The intersection links Jackson Street Extension with Twin Bridges Road, Lodi Road, and Horseshoe Drive. The initial plan called for a four-way stop sign, but Nick Verret, District 8 engineer-administrator with the Louisiana Department of Transportation and Development (DOTD), said a roundabout would offer better safety and efficiency than a four-way stop or a traffic light signal.

The debate over the most effective traffic control devices for intersections has been ongoing throughout the last century. As far back as 1934, a study published in the Journal of Social Psychology reported that approximately 25 percent of drivers who approached an intersection with visible cross traffic failed to come to a full stop at the stop sign. Another study revealed that when there was no approaching traffic, only 14 percent of drivers fully stopped their cars. This frightening figure comes from research conducted in 1968 in Berkeley, California, which was published in the Law & Society Review. For a recent discussion of these studies and the efficacy of stop signs generally, see this article from Slate.

Roundabouts on the other hand enjoy a significantly better reputation for safety. A study published in the American Journal of Public Health in 2001 looked at crash statistics for 24 intersections across the U.S. that were converted from stop sign or traffic light signal controls to roundabouts. Traffic accident rates at the intersections dropped dramatically following the conversion, including a 90 percent reduction in the number of crashes involving fatal or incapacitating injuries. Roundabouts also offer improvements to traffic flow. The DOTD’s Verret estimates that the Jackson Street Extension roundabout will result in a “50 percent increase in capacity” for the intersection,” which will help to reduce the long queues that occur during peak times. The trade-off is that roundabouts are typically more expensive to install and maintain than signs or signals. The Jackson Street Extension roundabout will cost $2.34 million, with $1.6 million funded with federal dollars and $740,000 funded by the city of Alexandria.

July 13, 2010

A No-Show in Court Does Not Mean Default Judgment Success

by Berniard Law Firm

When Robert Williams, Jr. and Tyson Smith got into an altercation that resulted in a broken jaw for Williams, the Williams family brought a lawsuit against both Tyson Smith and the Northeast Louisiana Marine Institute, Inc. (NLMI). NLMI is an alternative school in Tallulah, LA. The event occurred one January morning in 2007 at NLMI with both teachers and other students present.

Even though both defendants were served with notice of the suit neither responded in a timely fashion. When a defendant does not respond to a claim against him or her, the court has the ability to enter a judgment despite a party’s failure to show up and present a defense. If a party has made any appearance in the process, however, then the party’s representative must be given notice of the default judgment before the judgment is confirmed.

The trial court in this case entered default judgment against the defendants. The court found NLMI liable for the incident and awarded just over $60,000 to the plaintiffs. NLMI appealed this decision, and, even though they did not present a defense at trial, were able to get the ruling overturned.

July 11, 2010

Fighting for Discovery Can Be an Uphill Battle Against Corporations

by Berniard Law Firm

When a lawsuit is brought the positions of the parties are frequently unequal. This is often the case for products liability suits, which involve an injured consumer or user of a product seeking to recover damages from the maker or seller of the product. Being a large and sometimes repeat player in the legal system can give businesses an advantage over an individual that is using the court system for the first time. Depending on the size, structure, nature of the business, as well as other factors, businesses may have an in-house legal department or regular representation from an outside firm. This kind of legal experience and expertise can sometimes result in the business defendant being able to delay, increase the cost of, or otherwise inhibit the discovery process. A potential plaintiff needs a competent, experienced, and dedicated lawyer to ensure that all the discovery evidence he or she is entitled to is provided by the defendant.

An example of this type of battle is the recent case called Soileau v. Smith’s True Value and Rental, which named Deere & Company and John Deere Limited as defendants. Ms. Soileau was injured in an accident on November 1, 2007 when a John Deere Model 460 front end loader became detached from a John Deere Model 4510 tractor and struck her right leg. Her initial lawsuit was brought on April 21, 2008.

Ms. Soileau filed interrogatories and requests for production of documents at the time of initially filing her lawsuit. However, each round of requests seemed to lead to refusals, delay, and incomplete information. Ms. Soileau even received incomplete information from the Consumer Product Safety Commission. This battle eventually led Ms. Soileau to turn to the court to force cooperation from the defendants. In addition to a motion to compel the defendants to answer her interrogatories, she sought to have them sanctioned, barred from producing certain evidence at trial, and forced to pay penalties and attorney fees for the trouble caused by their lack of cooperation.

July 9, 2010

Slight Standard of Causation is all That is Needed in Jones Act Cases

by Berniard Law Firm

A recent Louisiana Court of Appeals decision provides a good discussion of the burden of proof required in Jones Act cases.

James Bancroft worked as a seaman on the M/V Captain Nick owned by Mitchell Offshore Marine when the ship collided with the Pan Am Caribe. Mr. Bancroft was thrown violently, and broke ribs and punctured a lung. The court ruled that the vessel was not seaworthy and therefore Mitchell owed Bancroft $65,000 in general damages as well as $8250 for wage loss. The trial court did not agree with Bancroft that the accident had aggravated a prior back injury. On appeal, Bancroft asserted that the trial court erred in applying the incorrect burden of proof to the causal element of his case, finding his spine injuries and spinal fusion were not caused by the accident, awarding unreasonably low damages for his injuries, and failing to award punitive damages against Mitchell, while Mitchell claimed the trial courts damage award was too high.

Under the Jones Act, seaman are provided with the same rights railway employees have under the Federal Employers’ Liability Act which provides that “every common carrier by railroad . . shall be liable in damages for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 45 U.S.C. § 51. Under the Jones Act, seaman can recover when their employers’ negligence causes their injury. The standard of causation in both FELA and Jones Act cases is very low. The Supreme Court has used the word “slightest” to describe the standard of causation between employer negligence and employee injury. This means that if employer negligence played any part in producing injury or death, the employer will be held liable

July 7, 2010

Lawsuit Filed Over Alleged Defective GE Electric Range

by Berniard Law Firm

A fire broke out in 2008 within the Denham Springs, Louisiana, home of Thomas and Janice Campbell that laid devastation to the house and left the couple looking for answers. The fire investigator determined the fire’s cause was a defective range in the Campbell’s kitchen. The investigator determined the burners were off and the fire broke out when the control panel experienced a short. The Campbell’s had an expert assess the damage as well and received the same conclusion. Because of this assessment, the Campbell’s brought a lawsuit against manufacturer of the range, General Electric, alleging product defect had led to the destruction of their home. GE countered in court, moving for summary judgment against the use of the Campbell’s expert witness as well as moving for summary judgment against the use of a construction/composition claim.

If you have been a victim of an injury from a defective product, you should know that there are three different ways that you can prove the product is defective. These ways of proving fault attempt to encompass the process that a product undergoes and includes a variety of manners in which faulty conduct on the part of the delivery chain led to the disaster. By expanding the manner in which fault may be determined, the law not only gives more option to those injured by a product but also keeps a victim from suing anyone who came into contact with the good in hopes of compensation.

First, a product may have a manufacturing defect. A manufacturing defect occurs when a product becomes unreasonably dangerous by an error in the manufacturing process or the materials used in its creation, assembly, or construction. Therefore, if your electric range caused a fire because the materials used to create the product were below standard, this would be a “manufacturing defect.” In Louisiana, these defects are called “construction or composition” defects.

July 5, 2010

Tragedy Reminds Louisiana Residents of Dangers With Semi Trucks

by Berniard Law Firm

On May 7, 2010, the Donaldsonville community was saddened when 20 year-old Ryan Johnson was killed in a car accident when his car flipped after he collided with a semi-truck on LA 70. While this loss is tragic, it is also a reminder that accidents involving semi trucks should be treated differently that regular car accidents and usually require assistance from an attorney who has experience resolving these cases.

In a typical fender bender with another car, an attorney may not be required. After the collision, both drivers make sure they don’t have any injuries, call the paramedics if needed, exchange contact and insurance information, have the police make a report if necessary, and they settle the cost of damages through their insurance companies. Often in these situations, especially in small communities, the drivers know each other and can easily call the other if they need any additional information that they didn’t get immediately after the accident. It is a fairly straight-forward process.

Accidents between a car and a semi truck are different and require the driver of the car to be informed and consult an attorney soon after the accident. Truck drivers haul cargo across the country for a living. When they are involved in an accident, you are not just dealing with the other driver, but the company they work for. Trucking companies have similar liability insurance as the average driver; however, these companies are better equipped to handle accidents because they have already prepared for this situation. Trucking companies also have attorneys working to protect their assets that may only work on these types of cases. Trucking companies and their insurance providers are both business and have the goal of giving you the least amount of money for your settlement. It is important that you have someone fighting equally as hard on your side.

July 2, 2010

Insurance Companies Battle Over Who Picks Up the Tab After a Car Wreck in Monroe

by Berniard Law Firm

Amber Bridges was driving her parents’ 2002 Hyundai Sonata without their permission when she was involved in an accident with a 1992 GMC pickup truck owned by Tommy McClain at the intersection of Millhaven Road and Highway 594. She was attempting to turn left onto Millhaven road and was issued a citation and later found by the trial court to be solely responsible for the accident. Amber had received her official driver’s license just two weeks before. The car she was driving was owned by her father, Terry, and insured by American through Advanced Planning Insurance Company.

Although both cars were insured, American denied coverage for the liability of Amber.

When Terry obtained the automobile insurance in 2006, Amber was 16 years old and had a driver’s permit. However, Terry failed to disclose that Amber was a resident of the household over the age of 14. State Farm, the insurer of McClain’s car, paid the fair market value of the totaled pickup truck. State Farm and McClain then brought a civil suit for damages against Terry, Amber, and American.

July 1, 2010

Court of Appeals Examines the Scope of Employment Requirement for Vicarious Liability

by Berniard Law Firm

In a recent Louisiana Court of Appeals decision, Janika Johnson appealed a verdict in favor of Gilley Enterprises, owner of a Monroe McDonalds. Johnson, as a customer at the McDonald’s in 2006, was involved in an altercation with an employee. There was a history of ill feeling between Johnson and the employee because Johnson was dating the father of the employee’s child. Johnson called the other woman over to the counter, and a conversation ensued which turned loud and heated. The employee reached over the counter and struck Johnson in the face. Other store employees intervened. Johnson was told to leave and started towards the door. The other woman picked up a cup, dipped it into an open vat of hot grease, and threw the hot grease on Johnson, who suffered serious burns on her face and body.

Johnson filed suit against Littleton (the employee) and Gilley Enterprises, contending that Gilley was liable because their managers were negligent in hiring, training, and supervising Littleton and that Littleton’s attack occurred in the course and scope of her employment, making Gilley vicariously liable. Gilley responded that all of Johnson’s causes of action had prescribed. The trial court granted Gilley’s exception for the negligence claim but denied it pertaining to vicarious liability. Gilley filed a motion for summary judgment to dismiss the remaining vicarious liability claims arguing that Littleton was acting outside the course and scope of employment, the trial court agreed and Johnson appealed. On appeal Johnson argued that the trial court erred in concluding La.C.C. art 3493.10 was inapplicable to her claims of negligent hiring, training and supervision.

Louisiana C.C. art 3493.10 states: