Articles Posted in Litigation

A claim for loss of consortium is typically pursued following an injury where a husband or wife can no longer enjoy the companionship and services of his or her injured spouse to the same degree as before the accident. The loss can be permanent or only temporary, and it can result from the physical injury itself or the mental distress caused by the injury. The loss of sexual relations is frequently cited to support the claim, though it is not an essential element; the claim can also extend to other aspects of the spousal relationship such as caring for children, preparing meals, cleaning the house or performing other chores in the home, and sharing in social activities.

Louisiana law clearly defines the elements to be considered in a loss of consortium claim:

1. loss of love and affection;

In a 2000 case, the Court of Appeals made several rulings both reversing and affirming Judgments Notwithstanding the Verdict (JNOVs) that were granted after the trial of a very serious Jefferson Parish accident.

In October 1995 Michael Mashburn was driving east on 1-10 on the downslope of Bonnabel Boulevard, Jefferson Parish, when he lost control of his vehicle and struck the guardrail. He came to a stop blocking the left lane. Minutes later another car came over the overpass and struck Mashburn’s car. The second car was knocked across three lanes of traffic, struck the right guardrail, and came to rest blocking the right lane. The state police came to the scene. Within a couple of minutes of their arrival a motorcycle driven by Sean Schneider slid into another car stopped in the accident traffic. Schneider was thrown off and killed. About 100 feet back, another motorcyclist, Mendoza, was also involved in an accident and was seriously injured (requiring a partial leg amputation).

At trial, the jury granted judgment in favor of plaintiffs Mendoza and Schneider, (via his parents) and against Mashburn and his insurance company. Mashburn and the plaintiffs moved for JNOVs which were granted by the trial court. The JNOVs found the police officers liable for the motorcycle accidents for failing to properly secure the scene and warn drivers of potential danger and altered the damage awards to both Mendoza and Schneider. Upon appeal, the 5th Circuit Louisiana Court of Appeals reversed the JNOV with respect to police officer liability, affirmed with respect to damages awarded to Mendoza, and reduced damages awarded to Sean Schneider’s parents.

An “act of God” is an unusual, extraordinary, sudden, and unexpected manifestation of the forces of nature which man cannot resist, or prevent for that matter. Even something as commonplace as ice on a bridge can qualify. Three suits regarding a two-car accident on Natchitoches’ Ecore Bridge in 1990 gave Louisiana’s Third Circuit Court of Appeal an opportunity to discuss the doctrine of inevitable accident and the State’s duty to remedy the icy conditions.

The aforementioned early-morning ice on the Grand Ecore Bridge affected several motorists in January of 1990. Problems began between 5:30 and 6 a.m. when ice caused a woman to lose control of her car, hit a road sign, and come to rest facing the opposite direction that she was traveling. Shortly thereafter, a supervisor of the State’s Department of Transportation and Development (DOTD), Neil Bennett, came upon the accident while traveling on department business. Bennett stopped to see if the woman was injured, then proceeded down the highway to a roadside store where he called the Sheriff’s Office to report the accident. He then called the DOTD barn to request that a crew place sand on the bridge and returned to the bridge.

Minutes after Bennett returned, a Mack truck hit a patch of ice, jackknifed, and slid into an oncoming Pontiac. The driver of the car and his two passengers filed suit against the DOTD, the driver of the truck, his employer, his insurer, and the Louisiana Insurance Guaranty Association. The trial court dismissed all claims and the Third Circuit affirmed.