Articles Posted in Negligence

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In November 2000, Debra Anne Addis of Addis, Louisiana filed a request for review with the Louisiana Patient’s Compensation Fund alleging that Mary Eschette M.D. of LSU Medical Center acted negligently in changing her prescription medications and violated the appropriate standard care in failing to properly diagnose a problem with her left wrist. The medical review board entered their decision in September 2003 and concluded that Ms. Addis failed to show that the defendant’s did not meet the applicable standard of care in her treatment. Two and a half years later the defendant doctor and medical center filed a motion for summary judgment and submitted the medical review panel opinion, asserting that the plaintiff Ms. Addis failed to name an expert despite almost six years of discovery.

The Louisiana Court of Appeals (first circuit) entered their decision in March of last year in favor of the defendants. The court found that the record of the case showed Ms. Addis failed to submit any evidence to counter the medical review panel’s opinion or show she could meet her burden of proof should the case go to trial. Therefore, the court granted summary judgment to the defendants and ordered the Plaintiff to pay all costs associated with her appeal.

The granting of a summary judgment motion means that a case will not proceed any further because the plaintiff has failed to present evidence showing sufficient issues of material fact that can be decided by a jury. Therefore the decision is decided by the court as a matter of law. Summary judgment motions can be granted for the plaintiff or defendant. Here, the motion was granted for the defendant, effectively dismissing Ms. Addis’ case.

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In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not “compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances.” Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

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In a tort case based on negligence, a plaintiff must be able to show that the defendant owed a duty to the plaintiff and that the defendant breached that duty, resulting in harm to the plaintiff. In some circumstances, though, it can be difficult for a plaintiff to obtain clear evidence of the defendant’s breach of duty.

The concept of “res ipsa loquitur,” which is Latin for “the thing speaks for itself,” can be employed in certain situations to establish the defendant’s breach of duty in the absence of direct evidence. Under this doctrine, the mere occurrence of an accident raises the inference of negligence on the part of the defendant. When res ipsa loquitur is applied, the defendant bears the burden to put on other evidence to dispute the presumption of negligence.

There are two essential elements for applying res ipsa loquitur in a particular situation:

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In 1984, a natural gas pipeline exploded in the parish of West Feliciana resulting in death and destruction to people and property. The pipeline was owned and operated by Texas Eastern and Clarkco was performing work on the pipeline. The pipeline was on Mrs. Winters’ property and Clarkco sued Mrs. Winters for general allegations of negligence or strict liability with regards to the pipeline.

You may have heard the term strict liability before but you are not certain as to what the term actually means. Strict liability means that a person is responsible for damage or loss caused by his or her actions or omissions even if the person is not at fault.

It is irrelevant if that person attempted to take all the possible precautions to prevent injury concerning strict liability cases. With strict liability, the court simply says the person is guilty. It is important to note that not all injuries stem from strict liability crimes. The most common incidences involve people who own wild animals and people who deal with inherently danger instruments. This means that the object itself is very risky to try to control.

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Fleeing the scene of an escalating argument, a driver injured two persons when he ran over them with his car. The incident happened in Minden on February 7, as reported by Jana Ryan. Local authorities believed the victims were merely bystanders and were not part of the argument. After brandishing a gun, the driver attempted to leave in his car, and he ran over the bystanders while trying to back away. The driver was later arrested on criminal charges of aggravated assault and aggravated battery stemming from the incident.

Events like this one often bring criminal charges against the person who injures another. However, the driver in this case may also be civilly liable to the injured victims; that is, in addition any criminal conviction, a court can hold him financially responsible for the injuries that resulted from his actions. To be held civilly, or financially, liable to a victim, generally a person’s actions must be the legal cause of the victim’s injury. The law does not even require that the person have intentionally injured a victim; a careless, or negligent, act may be sufficient to establish liability.

It is important to keep in mind, though, that criminal law and civil liability are administered very differently and that criminal convictions and civil remedies are distinct under Louisiana law. A conviction by a criminal court does not automatically ensure that a civil court will hold a convicted defendant financially liable for the injuries he caused. Nor will a person found innocent be guaranteed immunity from civil liability. Each type of court requires attorneys to establish different elements, and criminal courts require them to prove those elements with more certainty. This is true even if key words, such as “assault” and “battery,” seem to mean essentially the same thing in each court.

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Policy makers have expressed doubt multiple times this year about whether enough is being done to protect the millions of drivers on the road. The recent Toyota recall of a multitude of cars with defective parts is a clear illustration of product liability and the measures to which a manufacturer is liable for problems with their items.

Representative Darrell Issa of California, the leading Republican on the Committee, complained during the hearings held regarding the automobile issues that Toyota knew about sticking gas pedal problems and improperly placed floor mats for years and delayed addressing the problems on cars sold outside of Japan.

Although the exact cause of the safety lapses is undetermined at this point, politicians have their own theories, as expressed at back-to-back congressional hearings just a few days. Business Week, for example, reports that John Mica, a Republican Congressmen from Florida, believes Toyota saved millions of dollars in 2007 by knowingly delaying a recall over unintended acceleration matters.

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Some time ago in Louisiana a young Reserve boy fell asleep on his school bus and awoke to find himself alone in the parking lot of the St. John the Baptist Parish School District central office. The upset kindergarten student stumbled into a school board meeting in progress and interrupted the proceedings with a frantic knock on the door. His parents were called and he was taken home unharmed, but the incident was a cause for concern among the School Board. So much so that Superintendent Courtney Millet called an emergency meeting with district bus drivers shortly thereafter.

As noted in an L’Observatuer article,

Millet said at the well-attended meeting she went over a list of notes concerning bus safety.

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According to a recent ABC News report, court documents from a class-action lawsuit against that has been filed against Toyota claim that the company is in possession of documents that show that the automaker documented confirmed cases of sudden acceleration without driver error as many as 7 years ago. Other alleged company documents show that Toyota has been able to recreate instances of sudden acceleration, again without driver error, within the last year.

The documents are referred to in a revised complaint that has been filed against Toyota in U.S. District Court for Southern California. In the suit, forty Toyota owners claim that sudden acceleration problems has caused them financial harm by reducing the resale value of their cars. The suit claims that, “Toyota failed to disclose that its own technicians often replicated sudden acceleration events without driver error.”

In a 2003 document quoted in the complaint, a technician reported a sudden acceleration incident where he found a “mis-synchronism between engine speed and throttle position movement.” The technician requested immediate action to correct the dangerous problem. Another document, from 2005, involved a Toyota dealership report that states that a dealer verified two separate acceleration incidents with a Toyota Sequoia. A 2003 report described what was called a “surge event,” despite no trouble code on a scan tool. According to consumer safety experts, many of the sudden acceleration problems could be resulting from a defect in Toyota’s electronic throttle control systems. The company has repeatedly denied that the vehicles have electronic problems.

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As most motorists are aware, Louisiana law requires that the driver of a vehicle involved in an accident must stop the vehicle at the scene, give his or her identity, and provide reasonable aid to anyone who may be injured as a result of the crash. La. R.S. 14:100. The failure to do so is often called a “hit and run” accident, and in many cases the accident victim has no way to track down the fleeing driver.

In Louisiana Farm Bureau Casualty Insurance Co. v. Hayden, No. 2010-CA-0015 (La. App. 4th Cir. 2010), the witness to a hit-and-run collision played a critical role in the resolution of the case. On February 18, 2007, William Dunham was driving his car in New Orleans near the intersection of Howard Avenue and Loyola Avenue. A silver Ford Taurus ran the red light at the intersection and hit Dunham’s car broadside. The driver of the Taurus continued on and fled the scene. Orelia Jones, who was riding in her sister’s car, happened to see the collision. Jones and her sister followed the Taurus until Jones was able to write down the car’s license plate number. She then returned to the scene of the accident and shared her information with the police.

The police traced the license plate number provided by Jones to a 2003 Ford Taurus owned by Amy Lips Hayden of Mandeville. Dunham’s insurance company, Louisiana Farm Bureau, sued Hayden for the damage to Dunham’s car in the accident.

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Several prior posts have examined the critical role that expert witnesses can play in a personal injury lawsuit. The Peoples v. Fred’s Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010) case offers a similar example of how expert testimony can be invaluable to a plaintiff. (For a brief background on this case, please see Part 1 of this post series.)

In addition to the dispute over notice, Fred’s Store’s appeal also challenged the trial judge’s admission of testimony by Peoples’s expert witness, Michael Frenzel. Frenzel was a board-certified safety professional who owned a company that offered safety program mangement services. At the time of the trial, he had 35 years of experience in the safety field. Prior to the trial, Frenzel reviewed the accident report, photos of the accident scene, and a diagram of the store. He also personally visited the Fred’s Store in Tioga to view the premises. Frenzel testified that the two gazebo boxes that Peoples tripped over “amounted to a trip hazard that presented an unacceptable level of risk to Fred’s customers.” He explained that, regardless of their precise location, two boxes laying flat on the floor would pose a risk to a customer entering the store given that the customer’s attention would likely be drawn to the other merchandise. This was especially the case, according to Frenzel, because the boxes were white in color and had a low profile against the white background of the floor. Frenzel further referenced the “universal, industry-wide standard minimum height recommended for floor displays to prevent tripping hazards,” and even identified a section in the store’s own safety manual that addressed tripping hazards. Finally, Frenzel testified that in his opinion Peoples “did nothing wrong,” and that “only Fred’s could have taken corrective action in this situation.”

Fred’s Store sought to exclude Frenzel’s damning testimony on the basis that he was not an eyewitness to the fall and therefore could not contribute to the resolution of any issues of fact. Also, Fred’s Store argued that expert testimony is not necessary in a trip and fall case. The Court of Appeals cited Louisiana Code of Evidence Article 702, which provides:

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