Articles Posted in Pain And Suffering Claims

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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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On April 17, 1968, Doris Brantley of Oak Grove, Louisiana was involved in an automobile accident when her car struck by a vehicle driven by Albert McKee. Mrs. Brantley was immediately taken to a local hospital and was released the next day. Her painful injuries included numerous abrasions, bruises, and lacerations, as well as trauma to her neck, back, and knees. She received care from a general practitioner for several weeks following the collision and then sought treatment from an orthopedic surgeon in Greenville, Mississippi.

At the time of the crash, Mrs. Brantley was 40 years old and in good health. She worked at the Lamont Glove Factory in Oak Grove as an inspector, where she earned $1.92 per hour. The trial court awarded Mrs. Brantley $5,000 for her personal injuries resulting from the accident, and an additional $1,313.85 for her lost wages and expenses she incurred in repairing her car. Mr. McKee, the other driver, appealed the judgment on the sole basis that the damages awarded by the trial court were excessive.

The principle that “much discretion” must be afforded the trial judge or jury in awarding tort damages has been a part of the Louisiana Civil Code since 1825. (Currently, the provision resides in Section 3 of Article 1934.) According to William A. Sherwood, who wrote about this matter in a note that appeared in the Tulane Law Review in 1974, its inclusion in the Code

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Louisiana workers’ compensation law creates a system that provides medical treatment and monetary income to employees who suffer injuries while on the job. The law is designed to benefit both employees and employers. Workers are protected against the difficulties that result from job-related injuries such as the expenses of medical care and lost wages from being unable to work. An injured employee can receive bi-weekly income payments and free medical treatment, but must forfeit any right he may otherwise have under the law to sue his employer over the injury. The employer benefits by avoiding a potentially costly and unpredictable lawsuit in exchange for accepting limited liability under the structured system that seeks to protect the interests of both parties. Under this system, the issue of fault or negligence is not at issue—it is enough for the employee to show that he suffered an injury while performing work for his employer.

One important procedural obligation on the part of an injured worker is that he must report the injury to his employer in a timely manner. According to Louisiana statute,

No [claim] for compensation shall be maintained unless notice of injury has been given to the employer within thirty days after the date of the injury or death. This notice may be given or made by any person claiming to be entitled to compensation or by anyone on his behalf. La. R.S. 23:1301.

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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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In the late evening of May 28, 2006, Grant Lee Williams and his girlfriend, Lisa Lobrano, visited the Saddle Ridge Bar at the Louisiana Boardwalk in Bossier Parish. Also at the establishment was Michael Moore, who at one point approached the bar where Lobrano was sitting and tried to pick her up. Williams observed that Moore inappropriately touched Lobrano and hurried over to fend him off. Williams told Moore that he was Lobrano’s boyfriend and warned him to leave her alone. After this exchange, Williams and Moore turned together toward the exit and within a moment, Moore struck Williams in the face. Williams, having sustained multiple fractures to his face and a broken nose, sued Moore for battery.

Much conflicting evidence was presented at the bench trial. Lobrano testified that she did not see either man hit the other, but that as she got up from the bar she turned to see Williams with blood on his face before he fell onto the floor. At that point, according to Lobrano, Moore kicked Williams several times in the ribs. Williams admitted in testimony that he may have pushed or bumped Moore as they walked away from the bar, but that he was blindsided by Moore’s punches. Williams also testified that Moore kicked him in the ribs after he fell to the floor. Moore denied ever touching Lobrano and testified that Williams approached him at the bar, pushed him, and then punched him in the eye. Moore explained that he swung at Williams and admitted he must have hit Williams since it was clear that Williams was injured. Several other bystanders offered testimony, but none saw exactly who threw the first punch.

The trial judge did not determine who hit first, but found that both Williams and Moore were equally at fault for the altercation. The judge awarded Williams general damages in the amount of $40,000 and $30,901 for medical costs, but reduced the total award by half in light of Williams’s own fault.

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A recent decision from the Louisiana Court of Appeals provides insight into precisely what a medical provider must get from a patient in order to create the presumption that they consented to medical treatment under Louisiana law.

This litigation arose from a procedure performed at St. Patrick Hospital in Lake Charles. Dr. Charles Humphries, a family practitioner, performed a colonoscopy on James J. Price, IV. Dr. Humphries detected several polyps in Mr. Price’s colon during the procedure and immediately aborted the procedure and had a gastroenterologist, Dr. Francis Bride, surgically excise the polyps–removing three of four of them without incident. During the removal of the fourth, the electrocautery snare being used malfunctioned causing a deeper burn of the colon that was desired. Dr. Bride visually inspected the area to rule out the possibility of an acute perforation of the colon. Dr. Bride did not see a perforation but ordered abdominal x-rays to confirm his lack of suspicion, with x-rays negative for any danger signs. Mr. Price’s stay was extended to rule out a perforation, and he was released to go home.

The next day, Mr. Price began to experience symptoms of a perforation and was directed by Dr. Humphries to go the ER at St. Patrick’s hospital. Mr. Price was prescribed antibiotics in hopes that the perforation would seal on its own. When this didn’t work, surgery was required.

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Jeanine Pryor of Lake Charles was injured when she fell exiting bleachers at a football came and filed a claim for damages due to injuries she sustained. Her claim was denied at the trial court level and in a recent decision, the Louisiana Third Circuit Court of Appeals reversed the trial court and awarded Ms. Pryor a significant damage award (over $500,000), even after reducing her damages by 30% due to a finding that she was partially at fault for the accident.

Ms. Pryor, of Lake Charles, went to New Iberia to watch her grandson’s team play a playoff football game at Lloyd G. Porter Stadium. The facility is owned by the Iberia Parish School Board. Spectators at the field sit on either west or east side spectator seating. According to reports the west side, where home team fans sit, is a much nicer facility made of concrete that sits well off the ground and has ramps leading to the seats. The east side of the field, where visiting teams traditionally sit, contains metal frame bleachers with wood seat boards and foot boards and rails around the rear and upper portions. The bleachers have no aisles for walking up into the stands or rails to help someone walking up rows.

When she arrived at the stadium, the 69 year old Ms. Pryor walked to the visitor side of the stadium, balancing on the uneven ground with her daughter’s help. Because the players and cheerleaders standing on the sidelines blocked the view of the game from the bottom rows, Ms. Pryor needed to climb up into the stands. Because she could not step up the eighteen inches from the first board to the second she had to grab the second board and lay on her side to swing up her legs one at a time. During halftime, Ms. Pryor needed to use the restroom so, again, with her daughter’s help, she walked down the bleachers. When she came to the second seat board, she stepped down slowly the extended distance to reach the first board and fell back. She dropped her daughters hand and suffered a broken leg and other injuries.

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When Robert Williams, Jr. and Tyson Smith got into an altercation that resulted in a broken jaw for Williams, the Williams family brought a lawsuit against both Tyson Smith and the Northeast Louisiana Marine Institute, Inc. (NLMI). NLMI is an alternative school in Tallulah, LA. The event occurred one January morning in 2007 at NLMI with both teachers and other students present.

Even though both defendants were served with notice of the suit neither responded in a timely fashion. When a defendant does not respond to a claim against him or her, the court has the ability to enter a judgment despite a party’s failure to show up and present a defense. If a party has made any appearance in the process, however, then the party’s representative must be given notice of the default judgment before the judgment is confirmed.

The trial court in this case entered default judgment against the defendants. The court found NLMI liable for the incident and awarded just over $60,000 to the plaintiffs. NLMI appealed this decision, and, even though they did not present a defense at trial, were able to get the ruling overturned.

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On May 7, 2010, the Donaldsonville community was saddened when 20 year-old Ryan Johnson was killed in a car accident when his car flipped after he collided with a semi-truck on LA 70. While this loss is tragic, it is also a reminder that accidents involving semi trucks should be treated differently that regular car accidents and usually require assistance from an attorney who has experience resolving these cases.

In a typical fender bender with another car, an attorney may not be required. After the collision, both drivers make sure they don’t have any injuries, call the paramedics if needed, exchange contact and insurance information, have the police make a report if necessary, and they settle the cost of damages through their insurance companies. Often in these situations, especially in small communities, the drivers know each other and can easily call the other if they need any additional information that they didn’t get immediately after the accident. It is a fairly straight-forward process.

Accidents between a car and a semi truck are different and require the driver of the car to be informed and consult an attorney soon after the accident. Truck drivers haul cargo across the country for a living. When they are involved in an accident, you are not just dealing with the other driver, but the company they work for. Trucking companies have similar liability insurance as the average driver; however, these companies are better equipped to handle accidents because they have already prepared for this situation. Trucking companies also have attorneys working to protect their assets that may only work on these types of cases. Trucking companies and their insurance providers are both business and have the goal of giving you the least amount of money for your settlement. It is important that you have someone fighting equally as hard on your side.

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