Articles Posted in Motorcycle Injury

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Car accidents are never pleasant, but when an accident is worsened by construction debris left on the side of the road, the outcome can be disastrous. Once the pain and suffering has subsided, the question needs to be asked, who’s responsible? Do we look to the construction company, or do we simply chock it up to the terrible luck of the drivers? More importantly, how does the state play into this accident, and when is it the responsibility of the state department to compensate for injuries resulting from construction debris? The 3rd Circuit Court of Appeals addressed those issues in the case of Thibodeaux v. Comeaux.

Jennifer Thibodeaux, the plaintiff in this case, was injured in a car accident off of Highway 190 in St. Landry parish. As Ms. Thibodeaux began to cross to the next lane, her car collided with another vehicle driven by Mr. Bill Comeaux. The collision caused Ms. Thibodeaux to lose control of her vehicle and travel off the highway, where her vehicle slammed into a large cement block and other debris on the shoulder of the highway. The cement and debris had been placed there during on-site construction by a contracted construction company, Gilchrist Constriction, hired by the defendant, Louisiana’s Department of Transportation and Development (DOTD). Ms. Thibodeaux was ejected from her car and sustained multiple injuries, including spinal fractures, lower jaw fractures, and a lacerated spleen. Among the others involved, Ms. Thibodeaux filed a claim against the DOTD for their responsibility in the accident. At the conclusion of the trial, the jury found that the debris and cement left at the site were the sole responsibility of Gilchrist Constriction, and not the responsibility of the DOTD. Therefore, the court found that the debris and cement created an unreasonable risk of harm and Gilchrist was 40% responsible (with the other 60% of liability ordered to Ms. Thibodeaux herself).

Ms. Thibodeaux’s appeal contends that the trial court erred in finding the cement and debris was not an unreasonable risk of harm caused by DOTD. The assignment of DOTD as responsible for the debris and cement questions the distinction between a factual and legal determination. For legal determinations, as stated in Becker v. Dean, the appellate court must review, de novo, the proper legal analysis to render a judgment on the merits. The appellate court looked to determine whether the factual determination by the trial was actually a legal determination that required a different form of review.

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Plaintiff Sherrie Lafleur was injured in an April 2007 rear-end collision on Ambassador Caffery Parkway in Lafayette. Mrs. Lafleur was waiting for a traffic signal when Brenda Nabours drove her vehicle into the rear of Mrs. Lafleur’s vehicle. The low-impact collision caused no damage to Mrs. Nabours’ vehicle and no structural damage to Mrs. Lafleur’s car.

Mrs. Lafleur filed suit against Mrs. Nabours (and Mrs. Nabours’ insurer Shelter Mutual Insurance Company) claiming that she suffered a severe neck injury as a result of the accident. Shelter admitted liability for the collision and the case proceeded to trial without a jury on the issues of causation and damage. The trial court found the debilitaing injuries claimed by Mrs.Lafleur were not a result of the collision and actually predated the accident by many years. The trial court awarded the medical damages incurred by Mrs. Lafleur from the date of the accident through August 2007 in the amount of $5,457.97. The court found Mrs. Lafleur failed to prove by a preponderance of the evidence that her remaining medical treatment was necessitated by the Collision. The trial court also awarded general damages of $10,000. Mrs. Lafleur appealed the award claiming both the calculations for special and general damages were abusively low and contrary to the evidence.

Special damages are awarded to repay you for financial losses you have suffered. In Lousiana, the amount of special damages awarded is a finding of fact subject to the manifest error standard of review. Under this standard, the appellate court looks to whether the factfinder’s conclusion was a reasonable one not whether the trier of fact was right or wrong. If the conclusion was reasonable, a reviewing court may not reverse even though convinced it would have weighed the evidence differently. Where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous.

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After working at his job as a recruiter for the U.S. Army, Sergeant Sean Fowler went out drinking with friends on the evening of February 4, 2008. He returned to the recruiting station in Covington briefly to pick up some personal belongings before heading home, as he had the following day off from work. At about 12:30 am early Mardi Gras morning, Fowler fell asleep at the wheel of his government-owned vehicle (“GOV”).

At the intersection of Harding and Howell Boulevards in Baton Rouge, he collided with a car driven by Fartima Hawkins. Fowler, who submitted to a breathalyzer test at the scene, had a blood alcohol content of 0.112%, which was over the legal limit in Louisiana of 0.08%. Hawkins, who sustained serious injuries in the crash, sued Fowler and the U.S. government in federal district court. Her complaint asserted that Fowler was acting within the course and scope of his employment at the time of the crash and, therefore, the government was liable under the doctrine of respondeat superior. The district court granted the U.S. government’s motion for summary judgment. Hawkins appealed, arguing that a genuine issue of material fact existed over whether Fowler was acting within the scope of his employment at the time of the accident.

The U.S. Court of Appeals for the Fifth Circuit conducted a de novo review of the district court’s decision. Hawkins’s case against the federal government was premised on the Federal Tort Claims Act (FTCA), which limits responsibility for injury to that which is “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA, the question of whether a negligent act occurred within the course and scope of a federal employee’s duty is settled according to the law of the state in which the alleged act occurred. See Garcia v. United States. Thus, the Fifth Circuit applied Louisiana jurisprudence in its analysis. Generally, an employee’s conduct is within the course and scope of his employment if it is (1) of the kind of conduct that he is employed to perform; (2)it occurs within the authorized time and space of employment; and (3) it is initiated, at least in part, by a purpose to serve the employer. See Orgeron v. McDonald. The default approach in Louisiana is the “going and coming” rule: that is, when an employee is involved in a car accident on his way to or from his place of employment, it is considered to be outside of the course and scope. An exception to the rule is when the employee uses an employer-owned vehicle in the “performance of an employment responsibility.” Factors that influence the analysis include: (1) whether the employee’s use of the vehicle benefitted the employer; (2) whether the employee was subject to the authority of the employer at the time of the accident; (3) whether the employee was authorized to use the vehicle; and (4) whether the worker was motivated to use the vehicle, at least in part, by the employer’s concerns. Brooks v. Guerrero. The court found “no evidence … that Fowler’s use of the GOV was related to any employment responsibility or was of any value to the Army.” Instead, the court found that “Fowler was going home for the Mardi Gras holiday at the time of the accident” and, accordingly, was not acting within the course and scope of his duties as an Army recruiter. Although the court recognized that Fowler’s “permission to use a GOV on the evening of the accident [was] genuinely disputed,” it held that the settlement of that issue was not essential to determining the course and scope of employment. Thus, the court concluded that “no genuine issue of material fact exists that might preclude entry of summary judgment in favor of the United States.”

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The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA’s form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

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Louisiana law requires that the driver of a motor vehicle maintain a safe distance from other cars and that the driver “not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” A driver who rear-ends another car is “presumed to have breached this duty” and, therefore, is assumed to be negligent. To challenge this presumption, the driver must prove he was not at fault for the collision by establishing two facts: 1) that he had his vehicle under control, and 2) closely observed the lead vehicle and followed at a safe distance under the circumstances. See Broussard v. Zurich American Ins. Co. The driver can also avoid fault by showing that the driver of the leading car “negligently created a hazard which could not reasonably be avoided. In the case of a multi-car accident, “the fact that the second driver is able to see and avoid an emergency situation ahead sets the standard of care applicable to the other following drivers.” Anderson v. May.

A three-car accident was at the center of Ebarb v. Matlock, a case recently decided by Louisiana’s Second Circuit Court of Appeal. On December 3, 2008, Yolanda Ebarb was driving her Kia Sorento in the left east-bound lane of I-20 in Bossier City. As she approached the overpass at Old Minden Road, she observed that the traffic ahead in both lanes had stoped. She applied her brakes and came to a complete stop safely behind the vehicle in front of her. A moment later, David Terry, driving his Jeep Cherokee also in the left east-bound lane of I-20, approached the same location. Terry noticed the stopped traffic and safely stopped his vehicle directly behind Ebarb’s.Then, Terry’s Jeep was hit from behind at high speed by a Ford F-250 pickup truck driven by Phillip Matlock. The Jeep pushed forward, rolled over, and collided with Ebarb’s Kia. Ebarb suffered a serious spinal injury as a result. Matlock was cited for following to closely at the scene. Ebarb sued both Terry and Matlock. The trial court granted summary judgment against Ebarb in Terry’s favor and against Matlock in Ebarb’s favor. Matlock appealed. The Second Circuit reviewed the law on rear-end collisions in Louisiana and the presumption of negligence against the driver. The court applied a duty-risk analysis to the circumstances and to Matlock’s conduct, which was bolstered only by his “self-serving statements” that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance under the circumstances.” The court concluded that Matlock failed to meet the standard of care “established” by Terry and Ebarb when they were both able to safely stop their cars after coming upon the stalled traffic. The court noted that “to rebut the objective evidence that two other drivers were able to safely stop and avoid a collision, Mr. Matlock has failed to offer any competent evidence.” Because Matlock “failed to establish that he will be able to rebut the presumption of his own negligence at trial,” the court affirmed the trial court’s judgment for Ebarb.

The facts of this case left Matlock with little opportunity to rebut the presumption of his negligence in rear-ending Terry’s Jeep. That Ebarb and Terry both managed to stop safely when they realized the traffic was stopped ahead suggests that any reasonable driver in control of his vehicle should have been able to do the same. Without evidence of any mitigating circumstances, Matlock’s defense was overcome by the presumption of his negligence.

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Car accidents are a common occurrence and when a car accident is caused by another party, you want to receive the appropriate relief for doctor’s bils, aches, pains and other accruing expenses. Just because an individual has received damages owed to him from one car accident should by no means preclude him from getting the deserved amount from a subsequent accident.

John Clyde Deville was involved in a car accident as a result of being hit by a mail truck that ran a red light. From the scene of the accident, Deville was taken to the emergency room complaining of neck, shoulder and back pain. At the hospital he was diagnosed with both cervical and lumbar disc herniations. Upon seeing a family physician, Deville was prescribed pain medication and sent to physical therapy. With little success, he was then referred to an orthopedic surgeon who suggested that epidural steroid injections may be the only viable option to alleviate the pain. While the first round of injections produced a small round of relief, Deville began to feel a noticeable reduction in pain with the second round.

Just as things were getting better and Deville began to feel relief, he was involved in another accident where he was sideswiped by another vehicle. While the impact from this vehicle was not extreme, his car was still thrown from his lane of travel and onto the sidewalk. As a result of this accident, Mr. Deville began to feel an increased tightness and pain in his back, pain that had originally subsided from the previous accident. He chose not to seek medical treatment immediately because he had food in his vehicle which had to be delivered. When he finally saw his physician, the severe pain had returned and this time, the injections did not help. Finally, based on advice from his doctor lumbar surgery was performed. However, the results were mixed and Deville still complained of a gnawing pain in his lumbar spine.

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If a company manufactures a defective product, and an individual is injured by that product, the manufacturer may be liable for the damages suffered by the product-user. The product, be it a cleaning supply or an automobile part, or any number of different items found in everyday life, bears an element of responsibility of reliability and worthiness when it is delivered by a manufacturer. When that responsibility is breeched, legal remedy is available.

As the Fifth Circuit described in the seminal case of Matthews v. Remington Arms Co., in order for an injured party to win an action against a product manufacturer, that party must prove: (1) that the party, or another “person or entity” was using the product in a manner reasonably anticipated by the manufacturer; (2) that an aspect of the product directly caused the damage(s) claimed; “(3) the product was ‘unreasonably dangerous’ either in construction, design, or warning; and (4) the characteristic rendering the product unreasonably dangerous either ‘exist[ed] at the time the product left the control of its manufacturer or result[ed] from a reasonably anticipated alteration or modification of the product.’”

If a party can show that a product, used in a way reasonably anticipated, could harm a product-user, the manufacturer may have a legal duty to design its product in a manner which would avoid such harm. As explained by the Fifth Circuit, a reasonably anticipated use is a “use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” If it can be shown that a product was misused and that misuse resulted in the damages claimed by the product-user, then that user cannot collect against the manufacturer for his or her damages.

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The plaintiff, Linda Garcie, filed a claim against the city of Shreverport after she sustained multiple injuries from tripping over an elevated portion of a sidewalk within the city. Ms. Garcie was walking her dog when she tripped over a crack in the sidewalk. The sidewalk was located outside the residence of Ms. Emily Pasquier, and was maintained by the city of Shreveport. After the pain in her right shoulder continued to bother her days after the accident, Ms. Garcie decided to seek medical treatment for her injuries. The court found the city to be 75% liable for Ms. Garcie’s injuries, while the court determined that the remaining 25% of liability was from Ms. Garcie’s own fault. In filing its appeal, the city contended that the trial court erred in finding that the city was at fault for its failure to maintain the sidewalk on which Ms. Garcie tripped because the city had no knowledge of the apparent defect in the sidewalk.

The determination for a city’s liability over public objects, like a sidewalk, rests on three key factors: knowledge, opportunity, and neglect. LSA-R.S. 9:2800 states that in order to find a public entity liable for damages based on the condition of objects within their control, the public entity must have had actual or constructive notice over the condition of the object, have had a reasonable opportunity to remedy the defect, and have failed to do so. In Lee v. State, the court determined that in order for an individual to recover against a public entity, the plaintiff must show by a preponderance of the evidence that (1) the thing that caused damage was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive 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 plaintiff’s harm. The court in Graves v. Page established that in order for the appellate court to overturn the decision, the appellate court must determine whether the trial court’s conclusion is reasonable based upon the record as a whole.

Unfortunately for the city of Sherveport, the evidence presented at the trial court was heavily stacked against them. During the trial, it was discovered that Mr. Pasquier contacted the city on multiple occasions to notify them of the sidewalk’s condition. Originally, the Pasquires reported a three inch crack in the sidewalk, which was later repaired by the city. However, Mr. Pasquire testified that sometime between 2006 and 2007 a one inch crack in the same sidewalk reappeared. Again, he called the city to request a repair of the sidewalk. However, Mr. Pasquire also testified that the newly formed crack in the sidewalk was obvious to him and he had walked multiple times across the sidewalk without tripping. The city’s superintendent of street and drainage was responsible for the intake of street issues, like Mr. Pasquire’s report of the reoccurring sidewalk crack. The superintendent, relying on the city’s C-CAR complaint system, stated that at no time did Mr. Pasquire’s new sidewalk complaint ever appeared in their system. The system relied on an operator to input all public complaints requiring city maintenance. Due to Mr. Pasquire’s vague recollection of reporting the second sidewalk issue, and the failure of the city’s complaint system to not recognize any complaint by Mr. Pasquire, the city questioned whether the complaint was made at all. The city argued that Ms. Garcie failed to establish all elements of liability necessary to hold the city responsible because there was sufficient evidence to show that Mr. Pasquire’s sidewalk issue was never reported to the city, therefore preventing actual or constructive notice by the city of the defect.

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Freak incidences occur every day that do have very real consequences for the responsible party. While some things may seem unavoidable for the victim, the party which caused the injury must go before a court and try to prove their innocence. One recent case, involving a garbage truck and down cable wire, helps illustrate how even unusual chains of events can have real consequences.

The plaintiff, Randy Williams, filed suit against the Louisiana Corporation IESI after the company’s garbage truck caused neck and shoulder injury to Mr. Williams. On December 17 2003, Mr. Williams stopped the IESI owned garbage truck during its daily garbage pick-up to request the help of the garbage men. Mr. Williams was requesting the help of the men to get his garbage can to the curb. After the men provided him assistance, Mr. Williams went to the trunk of his car. Mr. Williams testified that he heard a snapping noise and was suddenly struck by the end of a cable wire. It was concluded that the top of the garbage truck had snagged on the end of the cable wire as the garbage men continued on their route after assisting Mr. Williams. After the IESI employee’s realized what had happened, they pulled the wire loose from the truck and informed Mr. Williams that they would send help to fix the cable wire. The trial court found the IESI to be 100% liable to Mr. Williams’ injuries, awarding him just over $50,000.00. The appellate court affirmed the trial court’s ruling, while bringing to light the standard needed by a plaintiff to succeed in the different factual and legal questions required to hold a person liable for negligence.

A prima facie case (or a case in which the evidence presented is sufficient for a judgment) of negligence rests on a plaintiff’s ability to show that a duty was owed to the plaintiff by the defendant, the defendant breached that duty, and actual damage resulted as a direct cause of that breach. IESI believed that the trial court incorrectly determined that Mr. Williams had successfully met this burden. IESI made three arguments to the 3rd Circuit, requesting a reversal of the trial court’s decision: (1) IESI claims the trial court erred in concluding that a flap on the top of the garbage truck was what snagged the cable box and caused the accident; (2) IESI claims the trial court erred in finding that Mr. Williams met his burden of proving that IESI breached its duty of care to Mr. Williams; and (3) IESI claims that the trial court erred in failing to consider the possibility that the injury was in part the fault of the cable company in failing to maintain the cable wire as required by Louisiana regulation.

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A wide variety of events can occur to cause injury. The courts, when faced with a civil litigation involving a personal injury, are forced to narrow the cause of said injury in order to determine how much damage was caused by an incident. When a person has a series of injuries, or has a less than sterling claim, the courts are forced to decide just how responsible the incident was for the pain suffered.

A recent case involving a malfunctioning bridge and a questionable “victim” helps highlight this problem. The plaintiff in this case, Ms. Trahan, was stopped at the Highway 14 Bridge in Abbeville, Louisiana as a boat passed under. The bridge, owned and operated by the defendant Louisiana Department of Transportation & Development, failed to correctly fall in place once the boat had safety passed. The bridge incorrectly sat between 3 to 7 inches above the road’s surface. Ms. Trahan hit the raised area while traveling approximately 15 miles per hour. Ms. Trahan claimed that she had sustained severe back pain as a result of the collision. The state argued that they were in fact liable for the defect in the bridge, but the injury sustained by Ms. Trahan was not at all related to the defective bridge. The trial court agreed with the state department and dismissed the case. In its conclusion, the trial court found the credibility of Ms. Trahan to be highly suspect, and was presented with evidence that suggested alternative possibilities for Ms. Trahan’s injuries. Ms. Trahan’s sole appeal rested on the fact that the trial court erred when it failed to find that the injury to Ms. Trahan was a direct result of the bridge incident.

A necessary element to a claim of liability is not simply that an injury exists, but that the factual evidence sufficiently shows that the defendant was the actual and proximate cause of that injury. In ruling on questions of fact, like the one presented in this case, the appellate court follows the manifest error standard when determining whether to affirm or reverse the trial court’s decision. At the trial court, Ms. Trahan was required to show by a preponderance of the evidence that her back injury was a direct result of the bridge’s defect. Because the trial court determined that Ms. Trahan failed to meet that burden, the manifest error standard, as stated in Lewis v. Department of Transportation & Development, requires the appellate court to determine only if the trial court’s factual conclusion were reasonable. The decision is only reversed if it is found that the trial court’s finding was clearly wrong or manifestly erroneous. The case of Orea v. Scallan puts the standard in perspective, stating that the appellate court may not reverse simply because it is convinced that, had it been determining the facts as they were presented in the trial court, it would have come to a different outcome. Additionally, when a trial court’s findings are based on the credibility of witnesses, Rosell v. ESCO establishes that the trial court’s reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review by the appellate court.

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