Negligence

May 28, 2010

Bridge Accident Case Shows Value of Litigation Discovery for Plaintiff

The issue of whether a defendant breached a duty of care owed to the plaintiff in a negligence case is settled by examining the events that occurred in connection with the accident. Unfortunately for many plaintiffs, specific details about the defendant’s conduct may not be readily available and, absent some legally enforceable demand, a defendant is unlikely to volunteer any self-incriminating information that may help the plaintiff build his negligence case.

Louisiana civil procedure provides an avenue for a plaintiff to obtain needed information about the defendant’s conduct through “discovery” in litigation. Discovery is the phase of a law suit during which the parties can request information from each other, usually in the form of interrogatories (written questions) and requests for documents. The parties can also schedule depositions where witnesses are interviewed. Although there are some exceptions to the types of materials that must be exchanged through discovery, the intent is to level the playing field with respect to information about the case so that the parties can adequately prepare for trial.

The case of Simoneaux v. State of Louisiana Department of Highways, 106 So. 2d 742 (La. App. 1st Cir. 1958), illustrates the essential role that evidence obtained through discovery can play for the plaintiff in a negligence case. On the evening of August 25, 1955, Clement J. Simoneaux was driving in his car with his wife and her friend on La. Hwy. 1 in Plaquemine, Iberville Parish. At the point where Hwy. 1 crosses the Bayou Plaquemine, there was a lift span bridge–a drawbridge in which the center section would lift vertically, as one piece, to permit boats to pass below. On the evening in question, the lift span, after being raised for a passing boat, was returned to its original position. However, at the south end of the opening, the span did not seat itself fully. Instead, the end of the span stopped some distance above the level of the roadway.

May 25, 2010

Slip-and-Fall at Farmerville Grocery Store Shows Plaintiff’s Burden in Negligence Suit

by Berniard Law Firm

Under Louisiana law, store owners are required to exercise reasonable care to keep their stores free from conditions that could be hazardous to customers and visitors. When a customer is injured while browsing the aisles, the merchant’s efforts to maintain a safe premises are often given great scrutiny. To win a negligence suit against a merchant for an injury that was due to an unsafe condition of the premises, the customer is required to prove the following three elements: (1) the condition presented an unreasonable and foreseeable risk of harm to the customer; (2) the merchant either created or had notice of the unsafe condition; and (3) the merchant failed to exercise reasonable care to remedy the condition.

On the element of notice, the customer/plaintiff has two options. She can show “actual notice,” which requires her to prove that the merchant had specific knowledge of the dangerous condition (usually occurring when the condition had been previously reported to a store employee). Alternatively, the plaintiff can rely on “constructive notice” if she can show that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care (normally proven by showing that the store failed to regularly clean/go through the store looking for problems).

The analysis of the constructive notice issue was of central importance in the case of Gregory v. Brookshire Grocery Co., No. 45,070 (Ct. of App. La., 2d Cir., 2010). On October 21, 2003, Lena Gregory entered the Brookshire Grocery Store in Farmerville. Just prior to her arrival, a young girl had become ill and vomited in several places around the store as she attempted to find the restroom. Gregory noticed the vomit on the floor near the entrance to the store and carefully made her way around it. Approximately 15 minutes later, as Brookshire employees cleaned up in other areas of the store, Gregory slipped and fell on a spot of a “clear substance about the size of a baseball.” It was unknown what the substance was, whether it was related to the girl’s sickness, how it got on the floor, or how long it had been there.

May 24, 2010

Shreveport Slip and Fall Illustrates Law’s Approach to Liability

by Berniard Law Firm

If you have slipped and fallen in a Louisiana store, you may not realize you are not alone. What’s more, you might not understand that you may have the legal rights to make a claim against the store for the incident. Just recently a lawsuit was filed in western Louisiana by a customer of a store who injured herself on the premise. These types of cases are classically known as “slip and fall” case. The victim in this case, Leona Jordan, was shopping at Walmart when she slipped on water that had accumulated on the floor and fell. Jordan was injured and hurt her hip, back, knee, and leg.

These types of accidents are far from rare. In fact, earlier this month Ellen Hickman injured herself at a Louisiana Dollar General store. She slipped and fell on a small plastic toy. As a result of the accident, she hurt her lower back, back of her head, ankle, and right leg.

If you have had a similar experience, you should know that Louisiana has laws in place to protect you.

April 20, 2010

What Happens When you Get Sick on Vacation? Celebrity Cruise Ship Docked After Massive Illness Outbreaks

by Berniard Law Firm

The cruise ship Celebrity Mercury was forced to its home port of Charleston for a four day cleaning recently. After the third straight outbreak of Norovirus on the 1870 passenger ship, the U.S. Centers for Disease Control issued a rare “no sail” recommendation. The return home came after Celebrity took some action to stem the outbreak to no avail.

As noted in an article in USA Today,

The repeated outbreaks came despite an aggressive effort by the line to stop the chain of transmission of the illness. Celebrity conducted an unusual top-to-bottom cleaning of the Mercury Feb. 26-27 that delayed the ship’s Feb. 26 departure by a day. The line also delayed the March 8 departure of the ship by several hours so it could undergo another round of extra cleaning and disinfecting

April 16, 2010

West Feliciana Parish Pipeline Explosion Illustrates the Required Elements of a Negligence Case

by Berniard Law Firm

On November 25, 1984, a natural gas pipeline running through a field in West Feliciana Parish, Louisiana exploded, causing the loss of lives and substantial property damage. The pipeline was owned by the Texas Eastern Company, but the land over which the pipeline ran was owned by Mary Lou Trawick Winters. Nearly thirty years prior to the incident, Mrs. Winters had agreed to provide Texas Eastern an easement to “construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace pipe lines” on the property. Dupree v. Texas Eastern Corp., 639 F. Supp. 463, 464 (M.D. La. 1986).

Relatives of the parties injured in the blast filed suit and named Ms. Winters as a defendant because of her ownership of the land over which Texas Eastern’s pipeline was run. The U.S. District Court for the Middle District of Louisiana first examined the state laws related to the granting of easements, and noted that “there are literally thousands of miles of underground natural gas … pipelines in Louisiana. It is a rare southwest Louisiana rice field that does not have at least one pipeline crossing it–many have multiple pipelines.” The court also observed that under federal law, natural gas pipeline companies are permitted to expropriate property needed for running the lines. In other words, landowners can be required to grant easements on their property for the installation of pipelines so long as the gas company compensates them based on the fair market value of the easements.

Although the court noted that pipeline easements are typically established by “voluntary” agreements between the pipeline companies and the landowners, it concluded that as a practical matter landowners are in no position to decline the request to grant an easement when “asked.” Revealing clear sympathy the position of such landowners, the court concluded, “the chances of the courts of Louisiana holding a landowner liable for activities of the [gas company] over which the landowner had no control, are akin to those of the proverbial snowball in the warm place.”