Articles Posted in Pain And Suffering Claims

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To win a case, a plaintiff must prove the elements of his or her legal claim, or cause of action. Each cause of action is comprised of certain required elements. For example, in a breach of contract claim, a plaintiff must prove the following elements: duty, breach, causation, and damages. In Louisiana, a resident can sue a municipality for failing to repair a defect in a public street or walkway. In a recent case, the Third Judicial District Court for the Parish of Union (“Court”) discussed the elements required to prevail in such a claim.

At issue in Carol Smithwick and Glenn Smithwick, Individually and as the Administrators of the Estate of the Minor Child, Carsen Smithwick v. City of Farmerville, Community Trust Bank, CTB Financial Corp. and First United Bank, was whether the plaintiffs proved that the City of Farmerville (“City”) had actual or constructive notice of a public way defect – an essential element of the cause of action. Plaintiff Carol Smithwick waited one afternoon for her son at a school bus stop, which encompassed an intersection between two city streets. Ms. Smithwick sustained injuries when she stepped onto the shoulder of one of the streets and tripped on a shallow depression. Seeking $6.2 million in damages, Ms. Smithwick claimed the injury to her right ankle from the fall caused a medical complication in her right knee.

In dismissing the suit, the trial court concluded that the plaintiffs could not prove that the City had constructive or actual notice of a defective condition even though the hole, which caused Ms. Smithwick’s injuries, presented an unreasonable risk of harm. On appeal, the Court affirmed the trial court’s judgment. According to the Court, a municipality will be held liable for injuries from a defect in the condition of a public way if it had actual or constructive notice of the defect. A municipality has actual notice of a defect or condition if one of its agents or employees had a duty to keep the area in good repair or to report defective or dangerous conditions. Constructive notice is proven if a plaintiff can show a defective condition existed for a considerable amount of time and reasonable diligence by the municipality would have resulted in its discovery.

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Unfortunate instances can occur when a wild animal is involved. The First Circuit Court of Appeal for the State of Louisiana ruled that defendants Mr. and Mrs. Rivett, who were sued in addition to their insurer, are not liable for the injuries sustained by the plaintiff when he was riding their horse. The plaintiff sued under an ordinary negligence claim under Article 2321 of the Civil Code of Louisiana (amended in 1996), which renders the owner of an animal liable for damage caused by the animal. For the owners of all animals except dogs, an ordinary negligence standard applies. For dogs, a strict liability standard was retained.

In order to recover under Article 2321, the plaintiff must prove by a preponderance of the evidence that (1) the defendant was required to adhere to a specific standard of care (the duty factor); (2) the defendant did not adhere to the appropriate standard (the breach of duty factor); (3) the defendant’s failure to adhere to the standard in fact caused the plaintiff to be injured (the cause-in-fact factor); (4) the injuries of the plaintiff were legally caused by  defendant’s failure to adhere to the standard (the degree of liability or sphere of protection factor); and (5) the plaintiff’s actual damages (the damages factor). If the plaintiff fails to show any of these elements, there is no liability. The First Circuit referred to this analysis as the duty/risk analysis.

On appeal, the plaintiff asserted that the trial court committed five legal errors. The First Circuit found that the trial court did err by not instructing the jury with the correct standard with which to evaluate the defendants’ conduct and therefore set aside the jury verdict finding for the defendants. The court reviewed the case de novo, without giving any weight to the factual findings of the incorrectly instructed jury as it usually would, and still found that the plaintiff had not been able to establish that the defendants were negligent for the injuries caused by the startled horse.

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In 1996, a group of plaintiffs filed a petition for damages against the city of Baton Rouge/Parish of East Baton Rouge alleging that the operation and maintenance of the North Wastewater Treatment Facility caused personal inconvenience, mental suffering, embarrassment, and personal injuries, threatening their health and safety, as well as damaged their land and property. The trial court awarded monetary damages to nineteen plaintiffs for stigma damages and added plaintiffs back who had been dismissed for no property interested, awarding damages for discomfort and inconvenience. However, in a 2009 decision (that can be found here: 2009CA1076), the Louisiana Court of Appeals reversed many of the damage awards based on errors of law.

On appeal, the Louisiana Court of Appeals considered whether the trial court erred because the prescriptive period had expired, erred in awarding damages out of the 1997 expansion of the plant, or erred calculating damage amounts. Under La.R.S.9:5624, the prescriptive period for public property damage claims like this one is two years. The court agreed with plaintiffs that the period did not lapse because the latest expansion of the sewage plant can be viewed as a new public work event – thus plaintiffs were only responsible to file suit within two years of the 1998 expansion, not within two years of the plant’s original opening in 1960.

The trial court awarded damages under Article I Section 4 of the Louisiana Constitution, which provides that “property shall not be taken or damages by the state or its political subdivisions except for public purposes and with just compensation paid to the owner.” The Louisiana Supreme Court has addressed inverse condemnations like this one in the past (where the state is not taking other’s property, but rather damaging it through their own property) and noted that “Despite the legislative failure to provide a procedure to seek redress when property is damaged or taken without the proper exercise of eminent domain this Court has held that a cause of action must arise out of the self-executing nature of the constitutional command to pay just compensation.” As such, individuals whose land is damaged by the government have constitutional redress.

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Previously on this blog, we examined the concept of a “substitute vehicle” for purposes of extending insurance coverage for an auto that is used only temporarily and in place of a policyholder’s usual car. In this situation, the insurer is required by state law to extend the same coverage to the substitute car as was in place for the regular vehicle. This requirement, however, does not necessarily apply to a vehicle that a driver simply borrows from another ownerin addition to the vehicle covered by his policy. A vehicle under this arrangement is known as a “non-owned” auto and, as the plaintiff in Burns v. Couvillionlearned, coverage is determined by the language of the owner’s policy.

On October 12, 2005, Linda Burns was driving on Highway 1 in Simmesport when she was rear-ended by a bean harvester farm vehicle operated by Burton Dupuis. At the time of the accident, Dupuis was engaged in work for his employer, Victor Lachney. The bean harvester was owned by Ted and Don Couvillion and had been loaned to Lachney for use by Dupuis that day. Burns filed a lawsuit for damages against the parties and also Progressive Insurance, alleging that Progressive had issued a policy to Lachney which applied to the bean harvester. Progressive admitted that it had issued a policy to Lachney that provided coverage on a different vehicle but denied that coverage extended to the bean harvester. The parties filed cross-motions for summary judgment and the trial court granted judgment in favor of Progressive.

On appeal, Burns argued that coverage should apply to the bean harvester because the Progressive policy included an “Employer’s Non-Ownership Liability Endorsement,” which stated that “[t]he definition of insured auto is modified to include a non-owned auto when you or any of your employees use the non-owned auto in your business.” Progressive countered that the policy had not been modified by the Endorsement because, although it was among the various endorsements and other forms that accompanied the policy, it was not listed on the policy’s Declarations Page which specifically identified the forms that modified the policy. In fact, the policy contained the following language:

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Under Louisiana law, an issuer of a property insurance policy is required to follow certain procedures when renewing the policy. Essentially, an insurance company must give a property owner 30 days’ notice of either 1) its decision not to renew a policy, or 2) the homeowner’s option to renew when it expires. La. R.S. 22:887(G). Case law adds the stipulation that, in most cases, an insurer’s failure to provide this notice will result in an automatic renewal of the policy. If there is a dispute, the insurer faces an initial burden to prove that it mailed the required notice, which creates a presumption the insured received the notice. The property owner may rebut this presumption by offering evidence that the notice was never delivered. The ultimate factual determination must be made by the trial court.

The Louisiana Supreme Court recently reaffirmed this approach in the case of Nolan v. Mabray. On June 18, 2005, Wilson Mabray and Marsh Nolan were shooting off fireworks at Mabray’s family farm in Union Parish. Wilson shot a bottle rocket which struck and severely injured Marsh. Wilson’s father (“Mabray”) maintained a farm-owner’s policy issued by Shelter Insurance Company. When March sued for his injuries, Shelter disputed that the policy was in effect at the time of the accident, arguing that the policy had lapsed: Shelter asserted that it mailed Mabray a renewal notice on April 28, 2005 which stated the premium was due on June 2, 2005. However, the company did not receive payment until nearly a month late, on June 29, 2005. At trial, a Shelter employee offered testimony about the company’s computer-generated renewal notices and automated mailing process. The employee produced records of the company’s April 28 letter and also a separate “lapse letter” mailed on June 20 that warned Mabray his policy had been cancelled. Mabray’s local agent, who was copied on the lapse letter, personally contacted Mabray on June 29 and collected payment the same day. On the issue of whether he ever received the renewal notice, Mabray testified by way of deposition that he did not remember receiving it, and that if he had, he would have paid the premium right away. However, Mabray testified it was possible he overlooked the notice as April through June were especially busy months on the farm during which he “might have stuff sit on [his] desk for a couple of weeks before it gets opened.” Mabray further stated that “[he] could certainly not swear that it did not come to [his] mailbox and actually get on [his] desk.” He also admitted that several other insurance policies with Shelter had lapsed in the past because he did not pay the premium on time. Based on this evidence, the trial court found that Shelter did mail the renewal notice to Mabray on April 28, 2005 and, therefore, the policy was not in effect at the time of the bottle rocket incident because it had lapsed.

The Second Circuit reversed, finding that there was insufficient evidence to support the trial court’s conclusion that the renewal notice had been mailed. This decision was based primarily on the fact that Shelter did not introduce evidence of any person’s actual knowledge that the notice was mailed. The Louisiana Supreme court disagreed. Applying the manifest error standard of review, the Court held that

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Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

The State of Louisiana Division of Administration, headquartered in Baton Rouge, requires that that medical malpractice claims against public sector health care providers must be processed through its administrative procedure, starting with the submission of the claim to the Commissioner of Administration.

A request for a Medical Review Panel must be in writing and contain:

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In the Parish of Acadia, the Third Circuit Court of Appeal decided a case that clarifies how punitive damage awards are to be applied to vicarious liability cases. In Bonnie Romero v. Clarendon America, Bonnie Romero (plaintiff) was hit by an 18 wheeler truck. The truck was driven by an employee of Stanford Trucking (Stanford). In their filing, the plaintiff argues that the truck was being driven within the scope of the truck driver’s employment. Plaintiff also alleges that the driver was intoxicated at the time of the accident. Stanford asked the driver to submit to a drug and alcohol test following the accident. The driver refused to submit to the test and was subsequently fired. Plaintiff filed for summary judgment asking the court to award punitive damages against Stanford because it was vicariously liable for the driver’s actions. Plaintiff also filed a motion to compel Stanford to submit to requests for discovery. Stanford cross-filed for summary judgment stating that it was not vicariously liable for punitive damages as a matter of law. The trial court granted Stanford’s summary judgment and denied both of plaintiff’s motions.

The Court started its discussion by stating that in Louisiana there is a strong public policy against punitive damages. Thus, in order for an award for punitive damages, the right must be clearly signified in a statute. Even if a statute created a right for punitive damages, it would be strictly construed by a court. As such, it is a matter of how Louisiana statutes are worded in order to determine whether a right for punitive damages exists in a vicarious liability case. Louisiana Civil Code Article 2315.4 states in pertinent part,

exemplary damages may be awarded upon proof that injuries on which the action is based were caused by wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

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In a recent unpublished opinion, a panel of the Louisiana 1st Circuit Court of Appeal affirmed a trial court’s award of additur in a personal injury lawsuit stemming from a low-speed rear-end automobile accident occurring in Terrebonne Parish in October 2005. The plaintiff sued for damages for personal injuries, medical expenses, and loss of wages, as well as loss of consortium for his wife and their two minor children. The jury returned a unanimous verdict allocating 70% of the fault to defendants, a towing company, its driver, and the truck’s insurer. They awarded damages to plaintiff and his family for the following: past physical pain and suffering, physical disability, impairment, and inconvenience, the effect of plaintiff’s injuries and inconvenience on the normal pursuits and pleasures of life, loss of past income, impairment of future earning capacity, past medical expenses, and loss of consortium.

In this matter, plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) or Alternatively for a New Trial and/or Additur as to both the allocation of fault and the amount of damages. After a hearing, the trial court granted plaintiffs’ motion for additur and increased the general damages award (which includes past physical pain and suffering, physical disability and impairment, the effect of the injuries and inconvenience, mental anguish, and future pain and suffering) from $28,000 to $100,000 and otherwise denied the motion. The defendants in the case appealed the decision, asserting that the jury did not abuse its discretion in awarding $28,000 (which was determined to be the case when the award was increased) in general damages and that the trial court abused its discretion by increasing the general damages award to $100,000. Plaintiffs, on the other hand, asserted that the additur was improperly low, the jury erred in its allocation of fault and damages, the trial court should have granted JNOV, and that the jury’s decision was a “compromise” or “quotient jury” verdict. Other procedural deficiencies were noted and eventually corrected.

The main issues upon appeal were: 1) whether the jury was unreasonable in allocating fault 70%-30% between the defendants and plaintiff, 2) whether a general damages award of $28,000 was unreasonably low and whether the trial court’s resulting additur to $100,000 was improper, 3) whether the trial court erred in refusing to grant JNOV, and 4) whether the jury compromised its damage awards and did not fully deliberate on all of the issues.

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The U.S. Environmental Protection Agency (EPA) recently gave the state of Louisiana a grant of $150,000 to help reduce the public’s exposure to asbestos in schools and other state buildings. The money will help building owners comply with statutory requirements, monitor their compliance, and be spent on public outreach efforts.

Under the Asbestos Hazard Emergency Response Act, or AHERA, grants like this one are authorized to protect people who enter public buildings where asbestos may be found. The law requires local education agencies to inspect schools for asbestos and make plans to reduce it where found. The AHERA also created a program to train and accredit individuals who perform asbestos related work. Projects like those authorized and funded through AHERA are so important due to the human risk of asbestos depends on exposure. Contrary to popular belief, removal is not always the best way to reduce exposure. That is where education comes in. Improper removal of asbestos may create danger where none existed before. The EPA only requires removal when it is needed to prevent significant public exposure to asbestos material (example: during building renovation or demolition). If asbestos is discovered, the EPA actually often recommends in-place management, not removal. Management plans can be used to control the release of asbestos fibers when materials are not significantly damaged and not likely to be disturbed.

Beyond providing grants like this one to states to combat asbestos, the EPA plays a broad role in protecting the public from exposure to the toxic fibers. Several EPA Offices deal with asbestos. For example, the Office of Air and Radiation/Office of Air Quality Planning Standards, which has the mission of preserving and improving air quality in the U.S., is responsible for implementing another asbestos law, the Asbestos National Emission Standards for Hazardous Air Pollutants, which sets guidelines for demolition practices and reporting and record keeping requirements for waste disposal. In addition, the Office of Prevention, Pesticides, and Toxic Substances regulates asbestos in school buildings and certain asbestos products and maintains the Asbestos Model Accreditation Plan which is used by states to train and accredit asbestos professionals. This Office also protects workers in states without Occupational Safety and Health Administration (OSHA) Safety and Health Plans.

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Court systems are very highly burdened. Currently, there are too many cases compared to the number of judges and judicial staff. This phenomenon of law will not likely change any time soon. Therefore, the judicial system had to come up with ways to counter the overflowing process. One of the most logical methods of ending too much litigation is to limit the amount of time a case can sit in the judicial system without action. This is a process called abandonment. In Louisiana, if a case has not progressed, through prosecution or defense, for three years, the case will be thrown out of the court system and will be banned from further action.

The impact of such a rule is significant on any litigation. However, overcoming this outcome is very easy. Any significant action taken on behalf of any party in the case will re-start the time period. Therefore, the only cases that are hurt are cases where the plaintiff has filed a suit and has forgotten about it or has found better things to occupy time with. These cases remain on the books, and when, a few years down the road, the plaintiff remembers that the case is still pending, the case will be denied access to the courts.

Additionally, lawyers and clients should be aware that not all action intervenes on the three year time period. Some action will not stop the clock from running. LSA-C.C.P. art 561 states in relevant part:

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