Articles Posted in Miscellaneous

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In Darren Dugas, et al v. Bayou Teche Water Works, et al, the Third Circuit Court of Appeal for Louisiana (“Court”) provided guidance on Louisiana statute La. R.S. 9:5624, which limits the liability of any government entity in Louisiana in connection with a public works for a two-year statutory period. The plaintiffs, the Dugas family (“Dugas plaintiffs”), sued Bayou Teche Water Works, Inc. (“Bayou Teche”) and its insurer for damages they allegedly sustained from Bayou Teche’s dumping of brine into an irrigation canal.

The Dugas plaintiffs owned a stretch of farmland along an irrigation coulee in Iberia Parish, and used the irrigation water for their farming operations. Bayou Teche, the defendant, runs a potable water treatment plant nearby. According to the petition, the Dugas plaintiffs notified Bayou Teche immediately upon discovering the discharge, but Bayou Teche continued to discharge the brine into the waterway for about a year after. After the Dugas plaintiffs brought suit, Bayou Teche answered their petition by merely stating that it was a Louisiana corporation that complied with all applicable statutes and regulations in its operation. The company subsequently filed an exception of prescription, which the trial court granted. In granting the exception, the trial court relied on La. R.S. 9:5624, which states that “[w]hen private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.” As discussed previously, the statute was adopted to limit governmental exposure from claims for damages to property when the damage is caused by a public work. Nuckolls v. Louisiana State Highway Department. The policy behind the statute is to encourage projects that provide a public purpose or benefit. The statutory period begins to run when the damage is discovered. In other words, the suit must be brought within two years after damages are sustained. Therefore, any suit that is not brought within the two-year period is barred. By granting the exception, the trial court concluded that the Dugas plaintiffs did not bring their lawsuit within the period of time set by the law.

Since the burden of proving the exception of prescription is on the movant, the ultimate issue on appeal was whether Bayou Teche met its burden of proof. After reviewing the record, the Court concluded that Bayou Teche failed to meet its evidentiary burden. The Court reasoned that the evidence introduced at the lower level only addressed the defendant’s allegations that the plaintiffs’ own negligence caused their damages. At the hearing, Bayou Teche failed to argue how it satisfied the particular elements of the statute. It did not assert it was a government entity nor explain how its water treatment plant and the dumping of brine serve a public purpose.

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The use of asbestos in products such as concrete, bricks, pipes, and other building materials has made way for a large amount of litigation on asbestos-related diseases and deaths. This litigation can help victims of the chemical and their families find some sort of meaning and relief from the toxic material. Litigation on asbestos, however, is very difficult both because the asbestos-related damages did not result from a single, identifiable act, and because it is not only the companies that produced the asbestos which are guilty- it is also those that used and marketed it.

A recent case contains both of these difficulties. Phillip Graf was exposed to asbestos for a period of 30 years while working in several jobs including metal works and drywall. Such extended exposure to such toxic material places one at risk of contracting mesothelioma, a rare form of cancer. Graf suffered from mesothelioma and later died from the disease. His family, Beatrice, Doryk, and Paulette Graf are suing in response to his death. They have named 29 defendants in the case, including Benjamin Moore & Co. and Metropolitan Life. The Graf family claims that the defendants are not only guilty of designing, manufacturing, packaging, transporting, and selling asbestos products, but also aiding and abetting the marketing of asbestos products.

In a traditional personal injury case, the damage results from a single act, but in asbestos cases such as Phillip Graf’s, the damages occurred over periods as long as 30 years or longer. What is worse, typically problems that result from asbestos exposure take years to show. Mesothelioma itself is impossible to detect early on and its symptoms are similar to other diseases, so patients are frequently misdiagnosed. All of this makes it very difficult for plaintiffs to prove that their health problems resulted from asbestos exposure and then link that asbestos exposure to the actions of the defendants. In the Graf case, the Graf family will have to show that the suffering and death Phillip Graf endured from his mesothelioma was caused by asbestos exposure, and that the named defendants caused that exposure.

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The Louisiana Court of Appeal for the Second Circuit recently upheld a trial court decision finding a Monroe motorist negligent following a minor collision in which she was rear-ended by a police cruiser as she was pulling across five-lane Forsythe Avenue. The plaintiff, Cathy Griffin, sued the City of Monroe and Police Officer Jeffrey Pilcher following the July 2008 collision.

The Trial Court held Griffin was clearly negligent, noting that Griffin barely avoided a collision with a westbound vehicle when she pulled her car out onto Forsythe. The Court held she then crossed the lanes of travel and entered the outside lane where the collision occurred. After taking the matter under advisement to determine whether any fault should be assessed against Pilcher, the trial judge found no fault on his part. The trial judge concluded that Pilcher was doing what was necessary to apprehend a speeder and was not driving with reckless disregard for the safety of others, whereas Griffin pulled onto Forsythe without seeing what she should have seen, namely, Pilcher’s approaching patrol car with its emergency lights flashing.

Griffin appealed both the Trial Court’s finding that she was negligent as well as the determination that Pilcher was not negligent.

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In Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co., the 5th Circuit revisits the decision made by the U.S. Supreme Court in Robins Dry Dock Co. v. Flint, 275 U.S. 303(1927): a foundational precedent for both maritime law specifically, and modern negligence law, generally. In Robins, the Supreme Court articulated a rule that has endured to this day and has significantly influenced general negligence jurisprudence; namely “there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest.” In TESTBANK (1985) the 5th Circuit reaffirmed the Robins rule that the court has consistently applied whenever circumstances necessitate doing so. After reviewing the rules from Robins and TESTBANK, the court in Catalyst applies these rules to the facts of the case.

On December 24, 2007, two tug boats with barge tows collided on the Mississippi River 2.5 miles upriver from the intake channel to the Sidney A. Murray hydroelectric plant. M/V Dan McMillan and its tow was operated by Defendant ARTCO, and M/V John Donnelly and its tow was operated by Defendant Ingram Barge Co. Several barges broke free from the tow of the Dan McMillan, including Barge TILC-37. Barge TILC-37 then drifted down river into the intake channel of Catalyst’s facility and became grounded on the east bank of the intake channel, lodged against the station and abutment. The physical presence of Barge TILC-37 obstructed the intake channel which provides water to the turbine/generators of the electric power generation facility.”

Because of the location of the barge, Catalyst had to reduce the flow of water in the intake channel to the turbines; and thus its output of electricity. This was necessary to prevent the barge from sinking and to allow safe access to the barge for its removal. Catalyst had to shut down six of the turbines and reduce the output of the remaining two because of the decrease of water coming into the intake channel. This allowed for the safe removal of the barge. Catalyst restored normal capacity to the plant at 6:30 p.m. on the 25th.

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The Town of Vidalia and the Parish of Concordia have the honor and distinction of being the beneficiary and location, respectively, of the largest prefabricated power plant in the world and the first hydroelectric power plant in the State of Louisiana. In 1990 the Sidney A. Murray Jr. hydroelectric station was prefabricated at the Avondale Shipyard in New Orleans, and floated 208 miles upriver to its current location: 40 miles south of Vidalia. The facility sits one mile north of the Army Corp of Engineers Old River Control Complex between the Mississippi River and the Red Atchafalaya River, producing 192 megawatts by utilizing the flow of 170,000 cubic feet per second of water past eight hydroelectric turbines. The project is remarkable not just because it is the first hydroelectric plant in Louisiana, and the largest prefabricated hydroelectric plant on the planet; but it is also the product of a multinational collaboration, it produces clean and renewable energy for Vidalia, and the town of Vidalia is a co-licensee of the project. In addition to the obvious benefits of clean and renewable energy and the employment that the Sidney A Murray Jr. project bestows on Vidalia and the Parish of Concordia; the citizens of Vidalia also benefit from “stabilized energy rates” that they receive with the operation of the plant.

Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co. is a particularly interesting case for those living in Concordia Parish because it is a maritime tort case involving the Sidney A. Murray Hydroelectric Plant. The case is important because it includes a review of the standards for damage requirements established in Robins Drydock and Repair Co. v. Flint 275 U.S. 303 (1927) and reaffirmed in Louisiana ex. rel. Guste v. M/V TESTBANK 752 F.2d 1019 (5th Cir. 1985). After reviewing Robins and TESTBANK, the 5th Circuit then applies the Robins test to the particular facts of the case. This will be a two part discussion: the first part will identify and discuss the test developed in Robins and evaluated in TESTBANK. The second part will discuss how the 5th Circuit applied the Robins test to the facts of the Catalyst case.

In 1927 the United States Supreme Court decided Robins Dry Dock and Repair Co. v. Flint. This case established “the general proposition that claims for pure economic loss are not recoverable in tort.” This decision has profoundly impacted not just maritime tort law, but general negligence law as well; with extremely broad implications and applications that resound to this day, over 80 years later. ” No single decision in American tort law has more dominated the analysis of liability for pure economic loss than Robins Dry Dock Repair Co. v. Flint.” Justice Holmes “denied the plaintiff, a time charterer recovery for financial loss which resulted from the defendant’s interference with the plaintiff’s use of the chartered vessel.” The following hints at the scope of the effects of the decision.

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July 4th, though best known as an occasion for grilling out, visiting the beach or lake, and watching the fireworks, is unfortunately also notorious for its high incidence of accidents and injuries. Many incidents, especially vehicle and boat accidents, are related to alcohol use. The Louisiana Highway Safety Commission recently announced that more than 87 state and local law enforcement agencies work overtime throughout the holiday weekend. Many of the agencies will be participating in the state’s “Over the Limit, Under Arrest” campaign that aims to keep impaired drivers off the road. The Commission reports that the number of highway deaths has dropped significantly over the past few years: 16 people were killed on Louisiana highways over the Fourth of July holiday in 2007, and only two fatalities occurred last year.

Despite this positive trend and the stepped-up efforts by law enforcement, patriotic celebrants throughout Louisiana may still find themselves in dangerous situations over these holiday weekends. When calamity should strike, the parties involved may turn to the courts to resolve their dispute; the resolution will likely involve the court’s application of negligence. The theory contains four basic elements that a plaintiff must show in order to recover from a defendant. First, a plaintiff must establish that the defendant owed him or her a duty. This is generally a straightforward matter, as all members of society have a responsibility to exercise reasonable care toward others; this duty takes such common sense forms as requiring users of fireworks to point bottle rockets away from bystanders or drivers to operate their vehicles in a safe manner. Driving a car or piloting a boat or jet ski while under the influence of alcohol or drugs is a clear violation of this duty. A person who fails to observe the obligation of safety and engages in conduct that poses an unreasonable risk of harm to others is said to breach this duty. This second element of negligence must be tied to the plaintiff’s injury by way of the third element, causation. That is, the defendant’s breach of duty must have resulted in the plaintiff’s injury. A defendant is responsible only for the consequences that are directly linked to his or her misconduct.

The final element, harm, requires the plaintiff to prove that he or she suffered a loss. The court can award two kinds of damages to compensate the plaintiff for his losses: special and general. Special damages are those which are easily quantifiable, such as medical expenses, lost wages, or property repair costs. General damages cover intangible losses, such as pain and suffering. Trial courts are afforded great latitude in assessing general damage awards, which can potentially expose defendants to staggering liability.

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In any workplace, an on-the-job injury can have serious repercussions, both medical and legal, for the injured employee and their employer. However, if the injured employee is a seaman, additional maritime laws and standards may apply when an injury occurs. For individuals working on ships, in shipyards, or in any industry covered by maritime law, knowledge of the protections and specific laws which apply in the event of injury is pivotal in order to be able to protect oneself.

The recent Louisiana First Circuit Court of Appeals case of Graham v. Offshore Specialty Fabricators, Inc. and Cashman Equipment Co. illustrates the importance of understanding the Jones Act, a federal law allowing seamen injured on the job to sue their employers, and claims alleging unseaworthiness of vessels. Graham was injured while working with a barge fleet on the Atchafalaya River near Morgan City, Louisiana. He and a co-worker were charged with the task of securing their employers deck barge. During this process, they needed to move other barges owned by Cashman Equipment Co. They crossed the deck of one such barge in order to reach and release the ship’s towline. Unbeknownst to the men, there were two large holes on the ship’s deck. Both men fell through one of the holes and both were seriously injured. Graham sued, and the lower court found in his favor. A jury awarded him damages. Both plaintiff and defendant appealed.

Graham brought his personal injury suit under the Jones Act. The Jones Act applies to any seaman who is injured or killed on the job and establishes his or her right to bring a civil action against an employer. The potential liability of the employer extends to all personal injuries sustained on the job, but the employee must prove negligence in order to recover. The duty of care owed by an employer under the Act is ordinary prudence. The ordinary prudence standard requires an employer to take reasonable care in maintaining a safe work environment under the circumstances particular to the case. To prove a claim of ordinary negligence, a claimant must prove that injury occurred and that the employer owed a duty to the injured, that the duty was breached, and that the breach caused the injury. The claimant must also show they themselves were exercising reasonable care in the course of their activities in order to recover. Graham presented evidence that the defendants were at fault for failing to properly maintain their ship deck. Based on this evidence, the appellate court held that the jury determination of damages on this issue should stand.

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When an unexpected personal injury occurs, the injured party may find the situation requires legal action. An injured person deserves to know where the money to pay for medical expenses, lost wages, and incidental expenses stemming from an injury will come from, and in many cases a legal claim can serve as a means to provide that knowledge. What many people thinking about initiating a claim for personal injury overlook is that the standards of the court in allocating fault for an injury may dictate the amount of recovery possible for an injured claimant.

Fault allocation can alter the amount of a damage award an injured party receives. The Louisiana Second Circuit Court of Appeal re-allocated percentages of fault that had been awarded by the lower court in the case of Matlock v. City of Shreveport . Matlock, a teacher and assistant softball coach, sued the City of Shreveport after she tripped and fell in a hole in the side walk on her way to softball practice at Cargill Park. Matlock twisted her ankle and suffered an avulsion fracture. After being cared for at a local hospital, she was instructed to follow up with an orthopedic specialist and to receive physical therapy.

Matlock sued the City of Shreveport for negligence in maintaining the sidewalk on which she was injured. The trial court awarded her damages and allocated 100% of the fault for the accident to the City. The City appealed the judgment arguing that the lower court’s fault allocation was inappropriate and that it should not be held 100% responsible for the plaintiff’s injuries.

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Recently, Louisiana’s 2nd Circuit heard a civil suit in which the court examined the possible affirmative defenses for defendants of intentional tort cases when the actions of that defendant resulted from an aggressive plaintiff. In the case of Griffith v. Young, Mr. Young appealed the 26th district decision to grant Mr. Griffith a motion for partial summary judgment for his battery case against Mr. Young. After arriving at the plaintiff’s home, the defendant kicked down the plaintiff’s door and physically attacked him using a stun gun, which resulted in multiple injuries to the plaintiff. While these actions alone are shocking, the details are even more strange.

The defendant claimed that the attack stemmed from the plaintiff boasting about past sexual relations with the defendant’s wife and openly distributing provocative photos of her to others. The defendant claimed that the partial summary judgment was ruled in error because his behavior was the result of the plaintiff’s conduct. Further, he claimed that learning of the extramarital affair and the distribution of the pictures was enough provocation by the plaintiff to question the proportion of liability between the two parties, making summary judgment inappropriate. This appeal brings up questions about how liable an individual who is provoked to engage in a physical altercation is relative to the other participant, and how the law handles these “overly aggressive plaintiff” theories by defendants in intentional tort claims. We look at how the 2nd circuit views Louisiana’s current precedent on the issue.

One avenue found within the Louisiana courts, as discussed in Young, is the use of “provocation” as an affirmative defense. Louisiana jurisprudence follows a comparative fault principle for civil claims. Under such a principle, as enacted in La. C. C. art. 2323, the amount of damages recoverable by a plaintiff for any action resulting in injury or loss shall be made in proportion to the degree of fault attributable to that plaintiff. In an effort to promote such a doctrine, Louisiana no long utilizes the “aggressor doctrine.” Under such a doctrine, a plaintiff would be unable to file a claim if it was determined that the plaintiff’s immediate actions sufficiently provoked the defendants attacked. The Louisiana Supreme Court in Landry v. Bellanger eliminated the use of the traditional “aggressor doctrine” and now allows defendants to assert a defense of provocation, utilizing comparative fault principles to proportion liability, when the plaintiff’s actions toward the defendant or a third party immediately provoked the actions of the defendant. The more the plaintiff immediately provokes the defendant, the less liable the defendant would be for any attack that may follow. La. C. C. art. 2323(c) does create an exception to the provocation rule, where a defendant’s intentional tort that arose from a negligent plaintiff does not use the comparative proportionately reduction.

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Under the Americans with Disabilities Act (“ADA”), disabled employees are protected from discriminatory treatment by their employers. The Act protects disabled employees from discrimination with regard to hiring, promotions, termination, compensation, training, and various other conditions of employment. Unfortunately, the Act’s protection is limited – only “qualified employees” are protected from those employers covered under the Act.

For an employee to be successful against their employer for a violation of the ADA, the employee must establish the following elements. First, the employee must have a disability. Second, the employee must establish that they are a “qualified individual” able to perform the essential functions of the job, with or without reasonable accommodation. Lastly, the employee must establish that the employer discriminated against him or her because of the disability. Each of these requirements sound simple enough to meet; however, the U.S. courts have defined and interpreted each of the requirements even further.

“Disability” is a specific term of art. Not every “disability” or impairment, in the ordinary sense of the term, will qualify under the ADA. A “disability” is defined as A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; B) a record of such impairment; or C) being regarded as having such an impairment. Importantly, it is the first type of disability, i.e. one that substantially limits a major life activity, that has been extensively litigated upon.

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