Articles Posted in Civil Matter

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Duty, causation, breach, and damages…what do these four little words mean to you? They could mean everything if you are litigating a claim of negligence because these terms represent the elements that must be satisfied in order to successfully prove your case. Negligence suits have historically been analyzed using these four elements and it is important to note that if a plaintiff fails to prove even one element of his claim, he loses on the entire tort claim.

The duty of care refers to the circumstances and relationships which the law recognizes as giving rise to a legal duty to prevent foreseeable harm from occurring to others. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care. The idea of establishing a duty played a pivotal role in, Bloxom v. The City of Shreveport, a highly controversial case taking place in DeSoto Parish in 2010.

In Bloxom v. City of Shreveport, David McFarlin, the president of Blue Phoenix Trading Company interviewed Brian Horn for a cab driver position. Horn, who had previously served time on a conviction for a felony of sexual assault and was a registered sex offender, was hired by McFarlin and drove a cab marked “Action Taxi.” In March of 2010, Horn posed as a young female and lured a young boy into his cab; Horn later murdered the boy and dumped his body in a wooded area off Hwy. 171 in DeSoto Parish. Horn is currently awaiting trial for capital murder. Meanwhile, the boy’s mother filed a wrongful death suit against both David McFarlin, individually, and his Blue Phoenix Trading Company. More information as it relates to the facts of this case and on the capital murder charge can be found here.

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In Louisiana, the Department of Transportation and Development (DOTD) is responsible for the maintenance of public roadways “in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and resonable prudence.” In order to accomplish this goal in a safe and legal manner, the DOTD follows guidance defined in the Manual for Uniform Traffic Control Devices (MUTCD). The issue in the case of Morales v. Davison Transportation Services arose out of a tragic multi-fatality multi-car accident in Madison Parish. The legal issue the Second Circuit Court of Appeal faced was whether or not to affirm a lower court’s granting of the DOTD’s Motion for Summary Judgment.

On November 7, 2007, a DOTD team was performing road grading on the inside shoulder of a flat and straight section of westbound I-20 in Madison Parish. A motor grader was scraping built up vegetation and dirt from the highway, and a shadow vehicle was following behind. The shadow vehicle was a truck that had an arrow board on top of it directing traffic into the next lane, a set of strobing lights and a sign cautioning drivers of the slow moving vehicle ahead. Records showed that the two DOTD vehicles were traveling approximately 3-5 miles per hour down the highway while performing their work.

The accident occurred when a semi-truck that was rapidly approaching the DOTD vehicles in the inside lane while trying to pass another semi swerved into the right lane but ended up clipping the back of the DOTD truck. The truck then hit the motor grader and ricocheted the first semi into opposing traffic were it collided head-on with an SUV. Both occupants of the SUV were killed, the semi driver suffered permanent brain damage and the DOTD truck driver was also injured. The children of the SUV occupants, the guardian of the semi driver, and the DOTD truck driver all brought suits for damages.

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In a fairly publicized case, three people were killed in 2008 by a diving boat explosion off the coast of Louisiana. This case is still working its way through the courts and got a little further from resolution in Jillian Morrison, LLC v. Sonia because of an obscure legal concept: ripeness.

Lawsuits need several parts to get off the ground. There has to be a plaintiff with claim with a valid legal basis, you need to have defendant that is liable for the claim. There can’t be any successful defenses, there has to be a court with jurisdiction and finally, the claim must be “ripe.”

Ripeness is a technical concept. For a case to be ripe it means that the cause of action being alleged has to have moved beyond the “abstract or hypothetical.” If the only question remaining is whether the law applies, you have a case. If there are still facts that need to develop to decide the case, then it will be determined to lack “ripeness.”

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You are sitting in your car, stopped at a stop sign, patiently waiting for the right moment to go. Suddenly, the distracted driver behind you rear-ends you. You go through the hassle of filing a report and you exchange information. Shortly thereafter, feeling some slight pain from the accident, you head over to a medical center just to make sure that everything is okay. To cover the costs of the medical bills, you file a lawsuit against the reckless driver.

While the lawsuit in this case seems pretty straight forward, you need to make sure that you hire a competent attorney that will claim the requisite damages on your behalf. This is especially important because if the damages are not requested at the appropriate times, these damages may be waived. Once a trial court has made its findings of fact, unless those findings are blatantly wrong or were made in manifest error, a reviewing court cannot reverse them.

Because the trial court has the duty to hear the findings of fact, the plaintiff’s attorney must submit any testimony or evidence of damages at this level and in a timely manner. At the trial court level, evidence needs to be submitted regarding not just medical bills, but also testimony and any evidence of lost wages, lost earning capacity, the full extent of any medical injuries, and any pain or suffering if these damages are to be awarded. A plaintiff can recover more than just the exact medical bills that have been paid to that point, but the proper evidence and/or testimony need to be presented. If any general damages are sought, they must be requested at the trial court level and entered into the record. If any on-going physical therapy will be required, records of this need to be presented so that it can be properly taken into account. If the plaintiff will not be able to work because of injuries incurred, evidence of this must also be presented so that the trial court can make a proper judgment.

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The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

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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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Louisiana strongly favors arbitration between parties when they have a dispute. Generally, it is less expensive and less time consuming than taking the case to trial. The arbitrator will determine the outcome of the damages based on an assessment of all of the circumstances in the case. Each side presents their side of the story so that the arbitrator can make a fair determination of the damages.

In many cases, once the arbitrator makes a decision, neither side can contest the decision unless it violates the law in some way. The Supreme Court of Louisiana has stated, “Because of the strong public policy favoring arbitration, arbitration awards are presumed to be valid. Errors of fact or law do not invalidate a fair and honest arbitration award.” National Tea Co. v. Richmond, 548 So.2d 939, 932 (La. 1989). This type of thinking makes it very difficult to set aside a decision of an arbitrator once it is completed. A case from the parish of St. Landry illustrates this idea.

In that case, the plaintiffs, a family that included two small children, bought a mobile home that they later discovered had mold in the walls and the roof had rotted. The mold likely contributed to their children’s breathing problems, and the family sought damages from both the manufacturer and the seller of the mobile home. The parties were required to arbitrate because the family signed an Arbitration Agreement shortly after they bought the mobile home.

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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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It is no secret that evidence and witness testimony are arguably the two most important aspects of injury litigation and the impact that each has on the outcome of an adjudication can either make or break your case. In order to understand these effects more fully, it is important to note that there is a difference between an ordinary and an expert witness. Ordinary, factual witnesses provide knowledgeable accounts of the facts of the case through either their direct participation or observation of the intricacies of the case, whereas expert witnesses hold specialized knowledge in a particular educational field and use this advanced knowledge to clarify or explain a piece of information. Ordinary and expert witnesses are viewed differently in the eyes of the court system and are governed under separate sections in the Federal Rules of Civil Procedure due to this distinction.

Unlike an ordinary witness, an expert witness is only permitted to testify at trial once an expert report has been filed with the opposing party. This is necessary to alleviate any future misunderstandings concerning the nature and purpose of the expert’s review and this extra measure fosters preparation, awareness and allows the parties to put their best foot forward during trial. Harmon v. Georgia Gulf Lake Charles, LLC, a recent opinion handed down from the United States Court of Appeals for the Fifth Circuit, illustrates the importance of complying with the mandatory standards regarding expert witnesses and the permissibility of their testimony and how not doing so can cause a party to conclude that it has insufficient evidence upon which to proceed to trial. This case involved injuries caused by an industrial accident in Westlake, Louisiana.

In this case, the Court held that Harmon did not properly comply with Federal Rule of Civil Procedure 26(a)(2)(B) and therefore, it decided to uphold the exclusion of imperative expert testimony. In 2006 and 2007, Ms. Harmon and four others claimed to have been injured when toxic chemicals were released into the air due to a fire and an explosion at the Georgia Gulf’s chemical facility in Westlake, Louisiana. Before trial was set to begin, the magistrate entered an order requiring Ms. Harmon and the other four plaintiffs, respectively, to provide an expert report within a timely manner for each expert witness to both Georgia Gulf Lake Charles L.L.C. and American International Specialty Lines Insurance Company.

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In order to take a case to the courtroom, you must have a cause of action. Generally, a cause of action means that there is some law that the other person has violated, and that violation has harmed you, so you should be compensated for that harm. If the law does not offer the plaintiff a remedy, then they cannot bring a case to court. When a court determines whether there is a cause of action, it does not look at the evidence of the case. Instead, it looks to only the petition that the plaintiff has filed. It assumes that all the facts are true to make this initial determination. Once a cause of action is established, then the case can go through the normal procedures to get into a courtroom.

Langston Hughes Academy Charter School’s former financial advisor stole money from the school in the amount of $667,000. She spent a portion of those funds at the Treasure Chest Casino. The school attempted to sue the casino to recover at least a portion of that money. In order to recover, the school needed to show that they had a cause of action against the casino. The school argued three major causes of action.

First, the school argued under the Louisiana Unfair Trade Practices Act (LUTPA). LUTPA provides a cause of action for “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The plaintiff must “prove that the conduct offends public policy, is immoral, unethical, oppressive, unscrupulous, or substantially injurious to customers.” Hernaez v. Mothe Life Ins. Co., 09-0147, p. 7 (La. App. 5 Cir. 11/10/09), 28 So.3d 454, 458. While the LUTPA originally only applied to consumers and business competitors, the Louisiana Supreme Court recently expanded the definition to include all people.

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