Negligence

January 24, 2013

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

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.

December 17, 2012

Class Action Involving Plant Releases Demonstrates How Certification Occurs

by Berniard Law Firm

Creating laminated veneer lumber and I-Joists, which are used in residential and commercial construction, require toxic chemicals such as formaldehyde, phenol, and methanol. The chemicals also end up in the waste products of plants that produce these goods. In the Parish of Natchitoches, hundreds of individuals discovered the damage that these chemicals could cause. These individuals stated “that sawdust from the plant fell like snowflakes upon them, their children, their homes and their cars.” The plant admitted that accidental release of admissions were fairly common, and they were all observed and recorded.

As a result of this exposure, hundreds of plaintiffs joined to form a class action lawsuit. A class action lawsuit involves numerous individuals who have suffered in a similar manner, usually resulting from the same incident or series of incidents. Class action lawsuits allow individual people to get compensation for damages where they may not have been able to if they just sued by themselves.

The damages in this case not only included the obvious mess that sawdust would create in a home, but also included an array of medical issues. Some examples include conjunctivitis, difficulty breathing, wheezing, coughing, bronchial pneumonia, and asthma. The side effects of exposure to the chemicals in the plant were relatively the same as those claimed by hundreds of nearby residents.

November 14, 2012

Questions Over Uninsured Motorist Coverage Rejection in Bossier Parish

by Berniard Law Firm

Louisiana law, in providing for uninsured/underinsured motorist (“UM”) coverage, reflects the state’s strong public policy of providing full recovery to victims who suffer damages in car accidents. If an at-fault driver lacks sufficient insurance coverage, the UM provision of the victim’s own policy will operate to make up the shortfall. UM coverage will be read into an insurance policy by default unless the coverage is rejected, and rejection “shall be made only on a form prescribed by the commissioner of insurance,” where the “form shall be provided by the insurer and signed by the named insured or his legal representative.” The following requirements must be met in order to create a valid rejection: 1.initialing the rejection the UM coverage; 2. printing the name of the insured or legal representative; 3. signing the name of the insured or legal representative; 4. filling in the policy number; and 5. dating the form. In cases of dispute, the insurance company bears the burden of proving that the insured rejected UM coverage, but a properly completed form “creates a rebuttable presumption that the insured knowingly rejected UM coverage.” A dispute over the waiver of UM coverage formed the basis of a case that came before Louisiana’s Second Circuit Court of Appeal earlier this year.

On July 21, 2008, Richard Gunter, a Bossier Parish police jury employee, was injured when the parish-owned vehicle he was riding in as a passenger was struck by another vehicle. Gunter filed suit against the driver of the other vehicle and her insurer, Gunter’s own insurer, and St. Paul Fire and Marine Insurance Co. Gunter alleged that St. Paul provided UM coverage for the police jury. St. Paul filed a motion for summary judgment, stating that the police jury had rejected UM coverage under its policy. The trial court granted summary judgment on behalf of St. Paul; Gunter appealed on the grounds that material facts about whether the police jury knowingly and properly rejected UM coverage were in dispute.

St. Paul’s position that the police jury rejected UM coverage was based on the fact that the parish administrator had completed a UM waiver form on September 27, 2007. Yet, the parish president’s testimony via affidavit revealed uncertainty as to whether the administrator had the authority to reject UM coverage, or whether such an action required approval by the parish finance committee. The court noted that “the record does not show that [the parish administrator] acted with the agreement, knowledge, or approval of the police jury in rejecting UM coverage for the policy period at issue.” Thus, “considering the strong public policy favoring UM coverage,” the court concluded that there were “genuine issues of material fact as to whether [the parish administrator] was authorized … to reject UM coverage on behalf of the police jury as its legal representative and whether the police jury knowingly rejected UM coverage for the relevant policy period.” Accordingly, the court reversed the trial court’s granting of summary judgment.