Miscellaneous

January 28, 2013

Louisiana Liability Lawsuit Against Sand Supplier for Silicosis Dismissed

In nearly all cases, sand on a beach is enjoyable and safe. Sand used for sandblasting, however, creates dust that, upon being inhaled by an unprotected worker, increases the risk of lung disease or other lung-based medical concerns. The Louisiana Court of Appeal decided in Bates v. E. D. Bullard Co., that the possibility of problems does not make the sale of a product like sand unreasonable, especially when that use is outside the normal, non-technical purpose.

Wilbert Bates worked for the SBA Shipyards during the 1980s doing tasks that included cleaning and sandblasting. Both types of duties exposed him to silica dust — pieces of sand so small that he inhaled them and they stuck in his lungs that led to silicosis. Silicosis is an industrial disease that leaves its victims short of breath due to small sand particles becoming lodged in the lungs. The presence of particles encourages the growth of fibrous tissue in the lungs, reducing lung capacity. A lifetime of work can result in wheezing and body strain in an attempt to get air.

Bates and his wife sued Specialty Sand Co. and Southern Silica of Louisiana, Inc., which provided sand to the shipyard. The Bateses claimed that the sand was unreasonably dangerous or defective because the sand companies failed to warn and instruct him and the shipyard of the potential hazards.

January 25, 2013

North American International Auto Show (NAIAS) Unveils Car Safety Gadgets to Avoid Distracted Driving, Accidents

by Berniard Law Firm

At their core, car accidents are inherently unexpected events that only some of the time can be avoided. Two common causes behind avoidable accidents are obstructions in the roadway and distracted driving. While road crews do their best to clean up roads and highways of clutter, flat tires and other types of vehicle damage are unfortunately too common. Similarly avoidable, whether applying makeup, eating in the car, trying to look up sports scores or, perhaps most infamous, texting with friends, Louisiana drivers and those across the United States often try to multi-task to pack more activity in their day. The problem with this is that, all-too-often, carrying out tasks while driving can cause a collision that can have disastrous results, both financially and physically.

The North American International Auto Show opened to the public this week in Detroit and amidst all the new models of cars are a variety of technological features aimed to help drivers avoid catastrophe. While major manufacturers brought along show features, like the Ford VIRTTEX Driving Simulator that replicates distracted driver scenarios in a booth, a variety of parts and technology demonstrations show promise in accident avoidance.

One type of new age tech that is creating buzz is V2X technology, wherein cars are able to communicate and, thus, avoid collisions, signal road conditions and alert to traffic jams. DENSO, a Japanese automotive part company, recently revealed a myriad of technology, including their Active Safety systems, that use monitoring provisions to detect and regulate against car problems. Beyond detection, though, DENSO has prioritized human machine interface (HMI) technology that helps prevent accidents and maintain driver attention. In all, the NAIAS featured an assortment of safety efforts (see the NTSB Chairman’s summary here) all geared to give drivers a technological advantage.

January 24, 2013

Admissibility of Photos One Part of Drive-Through Accident Involving Ambulance

by Berniard Law Firm

In the case of Johnson v. Smith, an ambulance driver drove his vehicle into the rear panel of another driver’s vehicle. This occurred in the drive-through lane of a Taco Bell. The defendant ambulance driver was determined to be at fault and lost at trial. On appeal, the defendants urged that certain pictures that had been deemed inadmissible at trial were crucial to their case. They claimed that it constituted reversible error on the part of the trial court not to admit the photographs in question. The appellate court disagreed and affirmed the trial court’s opinion.

The first reason for the appellate court’s decision on the matter of the admissibility of the photographs was that the photographs were not properly authenticated. While the law does not require photographs to be perfect representations of what they stand for, there is a standard that must be met. Photographs must be “sufficiently correct” before being admitted at trial. A trial court is permitted to admit photographs that have inaccuracies as long as the inaccuracies are explained. In this case, the police officer who was attempting to authenticate the photographs as taken by him may or may not have appeared in one of the photographs. This put the true origin of the photographs into question for the trial court. Because evidentiary rulings of a trial court are given great deference on appeal, the appellate court would only have disturbed this finding if it had found an abuse of discretion. Finding no such abuse of discretion, the court did not reverse on these grounds.

Another interesting reason for the appellate court’s decision in this case is that the court did not find that the photographs, if admitted, would have been at all helpful to the defendants who were urging the admission of those photographs. The court noted that the photographs may have been helpful to the plaintiffs in this case but found that the photographs would not have advanced the cause of the defendants. This type of harmless error is not going to result in a new trial for an aggrieved party. The appellate court found that the only real purpose that these photographs served was to establish the identity of the vehicles involved in this accident. None of the parties to the suit disputed the identity of the vehicles involved in the underlying accident.

January 21, 2013

Identifying the Wrong Defendant in Civil Suit Can Lead to Lost Opportunity

by Berniard Law Firm

The civil justice system has a few bare minimum requirements that must be met before a party can be successful in any given litigation. In order for a party to be successful in a civil action, that party’s case must make sense to the court in terms of the party accused, injury presented, etc. Initiating action against the correct defendant seems like it would be a given, however that is not always the case. Ms. Charise Thomas was injured in a particular location, eventually suing the owner of the location, Mr. Antonio Harris, due to the incident. Ms. Thomas also sued that man’s father, Mr. Aaron Harris. Unfortunately for Ms. Thomas, she did not initiate action against the estate of one Mr. Thirkield J. Smith, the owner of the property on the date of her accident.

The trial court granted Aaron Harris a peremptory exception of prescription and Antonio Harrris a summary judgment. These two different types of relief are granted for different reasons, having similar results but different standards of review on appeal. Each requires different elements in order to be granted to the moving party. In this case, they were also both upheld by the appellate court.

An exception of prescription is granted by a trial court when a certain time period has elapsed between the incident giving rise to a particular suit and the filing of that suit. Since Ms. Thomas never ended up filing against the appropriate party, Aaron Harris’ peremptory exception of prescription was granted and upheld on appeal. The trial court’s decision is given a fairly high amount of deference on appeal and is reviewed under the manifest error standard. If the trial court is found not to have abused its discretion, its decision will not be overturned.

January 14, 2013

Location Dictates Applicable Law, Law Dictates Fault in Marksville

by Berniard Law Firm

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.

January 11, 2013

Foreseeability Key to Establishing Accountability in Bastrop Fire Case

by Berniard Law Firm

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.

January 3, 2013

Prescription Limits Discussed in Case Coming from Baton Rouge Fall

by Berniard Law Firm

Lawsuits have limitations on when an individual can sue. These limitations are important so that people will not dread being sued for some things for their entire lives. It is also important because evidence will be fresher and readily available the sooner the lawsuit commences. However, these limitations also imply that those injured and lawyers need to act quickly and efficiently in order to get claims filed in timely manner.

In Louisiana, these limitations are known as liberative prescription. Their common-law counter-part is the statute of limitations. There are also two other types of prescription in Louisiana: acquisitive and prescription of nonuse. Acquisitive prescription is a means of getting ownership of property though possession for a period of time. For example, if you possess land for an uninterrupted period of ten years in good faith, hold it publicly and peacefully, and act as if you are the owner then you will eventually actually own the property. The common-law counter-part for this concept is adverse possession. The last type of prescription is the prescription of nonuse whereby your rights, other than ownership, can be extinguished if you do not use the property for a period of time. Usually that time frame is ten years as well.

The length of each liberative prescription is different depending on the type of case. For example, personal injury cases have a liberative prescription of one year. Therefore, the case must be brought within one year of the date of the accident or the court will not hear the case.

December 29, 2012

Appeals Court Determines Judgment Due to Conflict of Fact

by Berniard Law Firm

Juries have always been an important part of our legal system. Although many people dread jury duty, they are really performing a service when they are called. That service involves providing a judgment by a panel of your peers. We place a great deal of value in judgment rendered by your fellow community members.

Generally, juries consist of twelve people and nine of those twelve people have to agree to whatever outcome of the case is appropriate. The jury is allowed to speak with one another and look over evidence to make this determination. While the verdict may be as general as guilty or not guilty, there are also cases where the jury will be asked specific questions related to the case. As a rule, the jury is a finder of fact and their fact conclusions are treated as if they are complete fact, even if there may be some question. If the jury concludes that the grass is blue and the sky is green, then that’s how it is.

However, if the jury comes up with a ridiculous verdict given the circumstances, then the judge can reverse them. If the jury says the grass is blue and the sky is green, then the judge will recognize how strange that is and override their determination. If the question is closer, however, the judge will default to whatever the jury decides.

December 27, 2012

Worker’s Injury After Hours at Workplace Puts Claim Process Under Scope

by Berniard Law Firm

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.

December 19, 2012

Home Fire Worsened Due to Parish Road Crew Severing Phone, Water Lines

by Berniard Law Firm

In 2006, a mobile home caught fire in Winnfield, Louisiana. The couple that owned the home was obviously frightened and confused. However, they were especially concerned because their phone line was not working and their water had virtually no pressure. Therefore, the husband drove to a neighbor’s house to seek a phone to call the fire department and the wife stayed at home to try to control the flames. Because of the lack of water pressure, unfortunately, the flames became too much for the woman to handle. These two factors, the lack of phone and water pressure, no doubt contributed to the excessive amount of damage to their home.

Why did these disastrous conditions occur? The Winn Parish road crew accidentally cut their phone and water lines three days before the fire. They were in the process of fixing the water line and the phone company had yet to send someone out to fix the phone line when the fire occurred. The fire was caused by an unrelated incident, but the three occurrences combined proved to be disastrous for the couple.

The couple contacted their insurance company right away to help with the expenses. The insurance company provided $55,047.55 in compensation costs based on their homeowners’ insurance coverage. However, the couple also sued the Winn Parish Police Jury because they thought the damage caused by the fire would be much less had they had the use of decent water pressure and phone line to contact emergency personnel.