Articles Posted in Litigation

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Medical malpractice claims and recovery based on those claims are regulated by Louisiana statute. As such, the law places limits on the time an injured party has to file a claim. Once a claim is filed, the review process is subject to intermediate deadlines. As the following case demonstrates, a misstep in either the overall time limit or one of these intermediate points can be hazardous to a malpractice claim.

The case of Carter v. Ochsner Clinic Foundation, 978 So.2d 562 (La. Ct. App. 2008), involved a plaintiff, Janet Carter, whose mother died because of an improperly placed catheter. Ms. Carter sued both the doctor and the clinic involved in her mother’s treatment. Unfortunately for Ms. Carter, her attorneys’ work also proved to be a little sloppy.

Ms. Carter’s mother passed away on July 14, 2005. Under Louisiana law, a claim for a wrongful death resulting from medical malpractice must be filed within one year of the death (La. Rev. Stat. Ann. § 9:5628). Technically, the law requires a plaintiff to file a claim within one year of the malpractice or one year of discovering malpractice. However, the Louisiana courts have reasoned that when a person dies, the potential malpractice is readily evident. Thus, the statute of limitations begins to run on the date of death.

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Schools Tackle Prom Drinking Risk

Schools around the country attempt to confront the issue of student drunk driving, especially in the spring around prom season. One way to try to prevent teen drinking and driving is to talk to kids about the dangers while they are still young. Many high schools bring in a speaker, often a family member of someone killed by a drunk driver, or even a sorrowful drunk driver himself. There are also a variety of groups dedicated to educating young people about the dangers of alcohol and automobiles. Groups such as Mothers Against Drunk Driving and even student groups of Students Against Drunk Driving can help spread this message to students.

But a Baldwin high school, West St. Mary, located in St. Mary Parish, chose an even more attention-grabbing method. Instead of an assembly, the school involved students, Baldwin fire rescue workers, St. Mary Parish Sheriff’s deputies, Louisiana State Troopers and even a hearse from a local funeral home to put together a mock car accident.

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When a person is injured by the poor or defective condition of public property (such as a cracked sidewalk or a pothole in the roadway), he or she may be able to recover from the municipality responsible for maintaining the property. Under Louisiana law, actions in against city governments for require the plaintiff to show the following: (1) the thing that caused the injury to the victim was under the city’s control; (2) the thing was defective due to a condition that created an unreasonable risk of harm to the victim; (3) the city had notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of the victim’s injury. LSA-R.S. 9:2800.

Ordinarily, the notice requirement means that someone must have reported the problem to the city (“actual notice”) or the defect must have existed long enough for it to have been discovered as part of the city’s regular maintenance operations (“constructive notice”). This is often a significant hurdle for injured victims, as dangerous conditions are frequently overlooked by the public and the victim generally has no information about whether the condition existed long enough that the city should have discovered the problem.

However, the law provides an alternative:

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Car accident claims often hinge on whether or not the defendant owed a duty to the injured party. If a duty was owed, it was breached, and the breach caused an injury, liability for negligence exists. However, if there was no duty, the claim is cut off.

The important question is then, when does a duty exist? Generally speaking, people and entities have a duty to act reasonably in every particular circumstance. Reasonableness can be difficult to define and it often depends on the relationship between the parties. For example, a taxi cab driver may have a duty to exercise more care in driving their fares than someone dropping a friend off at work. Sometimes state or federal laws and regulations help to define when a duty exists. If a party has violated a legally defined duty, bringing a successful negligence claim against them may be easier.

One such instance of a legally defined duty applies to those that operate commercial vehicles. According to Regulations issued by the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration, “extreme caution” must be taken when commercial vehicle drivers find themselves in treacherous road conditions.

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Most parents probably get a little nervous when their teens take to the road, and for good reason. Teenage drivers are often very dangerous behind the wheel. In addition to their inexperience, teen drivers are more likely to succumb to the supposed “thrill” of risky behaviors like drunk driving, driving at night, distracted driving due to cell phones or usage of MP3 players, etc.

Statistics confirm parental apprehension. According to one insurance provider, each year:

More than 400,000 teens between 16 and 20 are severely injured in car accidents, and more than 5,000 lose their lives. Despite the very small percentage (10%) of the population that teenagers account for, teenage car crashes actually account for 12 percent of fatal car accidents.

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In 2005, Dale Spires of DeRidder was in a car accident that was caused by April Roberts. He sued Ms. Roberts and her insurance company paid out $10,000, which was the limit under her insurance policy. The suit was dismissed in 2006.

In 2007, Spires filed an additional lawsuit against his uninsured motorist carrier, State Farm, and alleged that Ms. Roberts was underinsured and as such he was entitled to additional recovery for the damages he sustained in the accident as well as for his emotional distress. State Farm argued that under Louisiana law, Spires had to assert all causes of action in the first suit against Ms. Roberts and was precluded from collection additional damages from state farm since the action arises from the same accident. As such, Stare Farm argued, because Spires did not bring the claim against State Farm when he sued Ms. Roberts he could no longer do so. The trial court agreed and dismissed the claim, leading to the Spires appeal.

In a 2008 decision, the Court of Appeals reversed the trial court judgment and found that the Spires were entitled to pursue a claim against State Farm for additional damages. The case hinged on the court’s interpretation of La.Code Civ.p. art 425 which states, “A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” According to the Court, art. 425 is merely a reference to the broader principle of res judicata.

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The cruise ship Celebrity Mercury was forced to its home port of Charleston for a four day cleaning recently. After the third straight outbreak of Norovirus on the 1870 passenger ship, the U.S. Centers for Disease Control issued a rare “no sail” recommendation. The return home came after Celebrity took some action to stem the outbreak to no avail.

As noted in an article in USA Today,

The repeated outbreaks came despite an aggressive effort by the line to stop the chain of transmission of the illness. Celebrity conducted an unusual top-to-bottom cleaning of the Mercury Feb. 26-27 that delayed the ship’s Feb. 26 departure by a day. The line also delayed the March 8 departure of the ship by several hours so it could undergo another round of extra cleaning and disinfecting

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Reports of drivers arrested for DWI, or “driving while intoxicated,” should serve as a reminder of the substantial duty imposed by the law on drivers to operate their vehicles in a safe manner. Motor vehicle operators owe a duty of care to all other drivers, passengers, and pedestrians to take reasonable care to avoid harm or injury. Some common breaches of this duty include driving too fast for conditions, failing to keep a proper lookout for other traffic, failing to observe traffic signals or markings, and driving while impaired by alcohol or drugs.

Two recent reports from Houma Today involve drivers who operated their vehicles while “under the influence” in Terrebonne Parish. The first involved Jeffrey Trahan of Gibson, Louisiana, who on March 22 received a five-year prison sentence for his role in a deadly car crash one year prior. According to police, on March 22, 2009, Trahan drove his 1996 Honda Accord on North Bayou Black Drive in Houma where he ran off the road into a ditch. Trahan’s car flipped over, ejecting both Trahan and Donald McInnis, his passenger. McInnis, 17, who was also from Gibson, was pronounced dead at the scene of the accident. According to prosecutor Juan Pickett, Trahan tested positive for marijuana and Xanax, a prescription anti-anxiety medication that can adversely affect driving. Trahan pleaded guilty to vehicular homicide and will be required to serve at least three years in jail without parole.

In the second report, James McDowell III of Baton Rouge was arrested in Thibodaux on March 24 for a fifth-offense DWI. At approximately 1:30 AM, a Louisiana state trooper observed McDowell swerving across lanes on La. Hwy. 308 near Bubba’s II Seafood Restaurant. The trooper charged McDowell with improper lane use, driving with a suspended license, and having an open container of alcohol in his car. McDowell had a blood-alcohol content of .052. While the state legal limit is .08, the trooper arrested McDowell because he had reason to believe that McDowell might have been under the influence of another substance. McDowell was taken to the Lafourche Parish jail.

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On December 15, 1955, James Edwin Watson, then 20 years old, was driving his Harley-Davidson motorcycle southbound on the two-lane State Highway 17 in West Carroll Parish, Louisiana. He was being followed at some distance by his friend, Douglas Simpson, in a Ford automobile. Both Watson and Simpson intended to make a left turn onto Airport Road on their way to Watson’s house. As they approached the intersection, a vehicle driven by Stanley D. McEacharn, Jr. overtook Simpson’s car on the left. Then, as McEacharn began to overtake Watson’s motorcycle, Watson, unaware of the presence of McEacharn’s car approaching in the left lane, proceeded at an angle into the left lane to make his left turn onto Airport Road. McEacharn’s car struck Watson’s Harley, sending the motorcycle further down the highway before it came to rest in the ditch on the side of the road. Watson’s body was found on the shoulder of the road, approximately half-way between where McEacharn’s car stopped and the motorcycle came to rest.

At trial, Simpson testified that as McEacharn’s car overtook his own, Watson’s Harley was out in front about 450 feet and was traveling, at an angle toward Airport Road, at about five MPH. Simpson said Watson gave a signal of his intention to make a left turn. McEacharn denied seeing any signal from Watson but admitted as he passed Simpson’s car he saw a glimpse of a man on a motorcycle. Both McEacharn and Simpson testified that they did not observe Watson make any turn of the head to the rear to check for traffic overtaking him.

The trial court concluded from the evidence that McEacharn had the last clear chance to avoid the accident but failed to avoid it because of “excessive speed, failure to keep a proper lookout ahead to discover the presence of those who may be in danger, failure to sound his horn, and failure to apply his brakes in time.” Watson v. McEacharn, 99 So. 2d 138, 139 (La. Ct. App. 2nd Cir. 1957). The court concluded that McEacharn’s negligence constituted the “proximate and immediate cause” of the accident, with Watson’s negligence in placing himself in a position of danger only a “remote” cause. Accordingly, the court entered judgment for Watson.

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On November 25, 1984, a natural gas pipeline running through a field in West Feliciana Parish, Louisiana exploded, causing the loss of lives and substantial property damage. The pipeline was owned by the Texas Eastern Company, but the land over which the pipeline ran was owned by Mary Lou Trawick Winters. Nearly thirty years prior to the incident, Mrs. Winters had agreed to provide Texas Eastern an easement to “construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace pipe lines” on the property. Dupree v. Texas Eastern Corp., 639 F. Supp. 463, 464 (M.D. La. 1986).

Relatives of the parties injured in the blast filed suit and named Ms. Winters as a defendant because of her ownership of the land over which Texas Eastern’s pipeline was run. The U.S. District Court for the Middle District of Louisiana first examined the state laws related to the granting of easements, and noted that “there are literally thousands of miles of underground natural gas … pipelines in Louisiana. It is a rare southwest Louisiana rice field that does not have at least one pipeline crossing it–many have multiple pipelines.” The court also observed that under federal law, natural gas pipeline companies are permitted to expropriate property needed for running the lines. In other words, landowners can be required to grant easements on their property for the installation of pipelines so long as the gas company compensates them based on the fair market value of the easements.

Although the court noted that pipeline easements are typically established by “voluntary” agreements between the pipeline companies and the landowners, it concluded that as a practical matter landowners are in no position to decline the request to grant an easement when “asked.” Revealing clear sympathy the position of such landowners, the court concluded, “the chances of the courts of Louisiana holding a landowner liable for activities of the [gas company] over which the landowner had no control, are akin to those of the proverbial snowball in the warm place.”

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