Product Defect

September 19, 2012

How Louisiana Determines Damages for Personal Injury

When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant’s actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim’s injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

September 12, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages (Part 2)

by Berniard Law Firm

This post is a follow up regarding the worker’s compensation claims in a maritime case previously discussed in “Maritime Injury: The Jones Act.” The Fifth Circuit Court of Appeals also addressed the complicated worker’s compensation aspects of this case in addition to the rejection of the use of The Jones Act in the injured party’s attempt to avoid an employer’s contributory negligence claim. In order to fully understand the worker’s compensation aspects of this case, it is important to consider some additional facts of the District Court’s decision.

As a reminder, a crane mechanic employed by a third party was injured on an oil rig due to the partial negligence of himself and the owners of the rig. He fell through an uncovered ladder from the top portion of the crane cab and was seriously injured when he landed on the deck below. After his injury, the employee was no longer able to work as a crane mechanic but remained an employee for his previous company.

While the injured man was unable to work as a crane mechanic, his employer gave him a clerical position and paid him significantly more than someone in a clerical position would earn. His employer continued to pay him the wage he earned as a crane mechanic and although he only worked approximately twenty hours a week, his employer paid him for fifty-five hours per week. The lower court determined that this dramatic increase in wages for the work done could be considered an advance of worker’s compensation benefits. They based this determination on the original intention of the employer. The Court of Appeals affirmed this decision by stating that the lower court had ample evidence to make this conclusion.

September 7, 2012

Trip and Fall at Metarie Carwash Leaves Plaintiff All Wet

by Berniard Law Firm

On September 9, 2008, George Alonzo visited the Safari Car Wash on Veterans Memorial Boulevard in Metarie. While exiting the restroom in the car wash’s waiting area, Alonzo fell and sustained injuries. In a lawsuit against the carwash, he alleged that he slipped in a puddle that had been caused by employees’ tracking in water from the carwash facilities.

Under Louisiana law, Alonzo shouldered the burden of proving three key elements: 1) the condition that existed on the car wash’s premises presented an unreasonable risk of harm and that the risk was reasonably foreseeable; 2) the car wash either created or had actual or constructive notice of the condition which caused the risk; and (3) the car wash failed to exercise reasonable care in remediating the condition. Constructive notice means that the condition existed for such a period of time that it should have been discovered if the car wash’s employees had exercised reasonable care.

Alonzo’s complaint was dismissed by the trial court on the car wash’s motion for summary judgment. Alonzo appealed to the Fifth Circuit Court of Appeal for the State of Louisiana, which affirmed the dismissal. Upon review, the court noted that Alonzo failed to prove that an unreasonably dangerous condition caused his fall. During his deposition, when asked what caused his fall, Alonzo responded, “I guess the floor was damp. I didn’t really see it, because I–you know, I wasn’t looking down when I walk.” He stated further that he assumed the floor was wet, but that he did not look on the floor after the fall to see what he would have slipped on, even though his pants, socks, and shoes were wet. Alonzo also contended that the waiting area’s concrete floor was hazardous because there were no carpets or non-slip mats, and the car wash employees were permitted to enter the waiting area in wet clothes and shoes. The court concluded that “Alonzo… was unable to identify the condition of the floor in defendant’s premises on the date of the fall,” and the circumstantial evidence he offered was insufficient to meet his burden of proof.

August 31, 2012

Damages a Complicated Concern in Louisiana Asbestos Case

by Berniard Law Firm

Damages are awarded in successful civil instances in order to put the injured party back into a position that they would have been in had the events in the case unfolded as planned or if the transaction had not taken place at all. For example, in a contracts case, if one party ordered and paid for widgets, and does not receive those widgets, then he should be able to get his money back or the court could force the other party to provide the widgets as promised. Sometimes, however, the position that you were in before the deal is not easy to quantify into a dollar amount. In cases where the injury is either physical or emotional, damages are very difficult to estimate.

In cases where the injury is either physical, emotional, or both, the court uses a variety of methods to attempt to determine the appropriate amount of damages. For example, if someone has been harmed physically and needs to go to the hospital, then part of the compensation will often include money to cover the hospital bills. If an individual has been troubled emotionally and needs to see a therapist, then the bills for that service will often be considered to figure damages. In addition, the court will often look at past cases to determine what type of monetary award that juries have given to the victim under similar circumstances. If the award that the jury gives is significantly smaller or larger than past awards then the court may intervene to adjust the damages granted.

A 2011 Delaware Supreme Court case illustrates this concept very well. In this case, a son and mother were exposed to asbestos while operating a car repair business for over forty years in Louisiana. They died after contracting mesothelioma; the mother died two years prior to her son’s death. Several issues came up in this case regarding the payment of damages. The lower court declared that two businesses were partially liable for the death of these individuals. Therefore, those businesses were ordered to pay $500,000 to the four remaining family members for the loss of their mother, $0 to the son for the loss of his mother, $80,000 to the mother’s estate for pain and suffering, and $1.6 million to the son’s estate for his pain and suffering. All of these funds were given to the four remaining family members.

August 13, 2012

Wrongful Death Claim Based on Fatal Crane Accident Dismissed

by Berniard Law Firm

Death on the job is a sad reality that all too many Louisiana families face. When a loved one dies on the job, the victim’s family is not only left with an emotional hole, but a financial gap as well. Children, siblings and spouses who may have relied on the deceased’s income can face economic hardship. Fortunately, a wrongful death lawsuit can help ease this financial burden.

A wrongful death lawsuit seeks to recover damages a surviving family member or estate has suffered by the negligent death of a family member at the hands of another. Since these suits are brought on behalf of surviving family members, compensation cannot be recovered for injuries that are personal to the deceased. This means that pain and suffering and mental distress damages cannot be recovered through a wrongful death lawsuit. However, lost wages and other financial losses faced by the surviving family can be recovered.

A wrongful death is a death that is caused by the negligent act or omission of another. In certain circumstances, if the death is proven to be caused intentionally, a jury may be more likely to award a larger recovery. However, proving an intentional act can be difficult. This was illustrated recently in a case where a man was fatally wounded aboard a ship when he was struck by a crane load.

August 1, 2012

Houma Boat Swell Accident Victim Convinces Court of Appeals to Bypass Res Judicata

by Berniard Law Firm

Though courts are busy and judges have overflowing dockets, our justice system requires courts to find time to hear cases worthy of adjudicating. This means that judges must be as efficient as possible. One way of doing this is to require claimants to converge all of their complaints into a single lawsuit. Failure to do this will bar a claimant from bringing a second lawsuit against the same party. This legal theory based in civil procedure is known as res judicata. It seeks to maintain judicial efficiency and protect litigants from facing duplicitous lawsuit from the same claimant. This important principle is important to understand for anyone going forward in a lawsuit because it could prevent a claimant from asserting any material claims against a wrong-doer that were not asserted in the first legal action.

Though courts are assumed to be honest, deceit and bias can seep into the legal fabric. When this occurs, the justice system must reanalyze the applicability of res judicata. One illustrative example of an instance like this took place recently in the United States District Court for the Eastern District of Louisiana. The issue was complicated and was later resolved by the United States Court of Appeals for the Fifth Circuit.

The case in question involved a personal injury lawsuit where a yacht’s boat swells threw another boat into the air and injured a woman in that boat. That injured woman filed suit against the yacht owners and their insurance company. At trial, the judge found for the defendants, essentially stating that the defendant’s expert witness was more reliable than the plaintiff’s expert.

July 30, 2012

Belle Chasse Mold Case Shines Light on Expert Testimony

by Berniard Law Firm

Southern Louisiana is known for its historic buildings, easy going attitude and humid climate. Though these ingredients mix well for a great place to live or vacation, they can wreak havoc on the health and safety of residents’ homes and work places. This was the case recently in Belle Chasse. There, an individual who rented an office for her business discovered the building contained toxic mold that posed serious health risks. The problem needed immediate remediation. After being contacted, the property owners began removal of the mold. However, the mold, according to the tenant, was so exacerbated that she was forced to abandon the office. The tenant then filed suit against the landlords and their insurance company seeking compensation for business and health related damages.

The importance of this case lies in its examination of expert testimony. In this instance, the tenant sought to have her doctor testify that her chronic fatigue syndrome and other health conditions were directly related to the toxic mold in her office. The landlords claimed it would be erroneous for the court to classify the doctor as an expert and asked that the lawsuit be excused. The court agreed with the landlords and, on appeal, so did the Court of Appeal for the Fourth Circuit.

Expert testimony is governed by the Daubert rule. According to this rule, in order for expert testimony to be heard it must be deemed to be relevant and reliable. The Supreme Court in Daubert provided that relevancy and reliability are determined by a set of factors: (1) testability of the scientific theory; (2) whether the theory has been subject to peer review; (3) knowledge of the theory’s rate of error; and (4) whether the theory has gained general acceptance within the scientific community. These factors are non-exclusive, but provide a solid framework for courts when determining whether to allow an “expert’s” testimony.

July 23, 2012

Precarious Louisiana Rental Situation Leads to Tenancy Debate

by Berniard Law Firm

Rental situations are often particularly hairy, with unfortunate stories emerging of how renters can be put into uncomfortable circumstances due to issues with the property. A landlord in Ouachita Parish, Louisiana, lost his appeal of the landlord liability judgment against him. While the landlord was able to collect some of the back-due rent owed to him, he is still liable for damages to a tenant who was injured in his apartment.

Green, a tenant in a building owned by Erwin Enterprises, reported a leak from his bathroom ceiling to his apartment manager on October 1, 2008. While a maintenance employee was dispatched the next day to fix the leak, the employee could not do so without bringing in some outside assistance and left the premises without taking any action to fix the problem. Four days later while Green was sitting on the toilet, the bathroom ceiling caved in on the tenant, causing him to jump up in surprise and slip on the water coming down above. After slipping on the water, Green suffered injuries to his back, legs, and foot, resulting in multiple doctor appointments over the next month to fix the problem.

Landlords are liable for defects in their buildings that result in injury if the building was in the landlord’s custody, that the building containing a effect presented an unreasonable risk of harm to others, that this defect caused the damage and that the landlord knew or should have known of the defective condition. In this case, the building was owned by the landlord company, and the Erwin knew of the defect since it had been reported to him several days earlier. The trial court determined that this leak in the bathroom ceiling was the cause of Green’s injuries and constituted an unreasonable risk of harm. Erwin appealed the judgment, claiming that the court erred in determining that the ceiling falling was the proximate cause of Green’s injuries.

July 16, 2012

Deposition Two-Step: Conflicting Reasons for Quitting Job Early Leads to Perjury Charge

by Berniard Law Firm

This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

July 9, 2012

Timeliness to Rebuild in New Orleans Still an Issue after Hurricane Katrina

by Berniard Law Firm

The idea of timeliness is a common contract clause that requires that one of the parties perform a mandatory act within a certain amount of time. There is often a specific amount of time attached, but sometimes the clause can simply state that an action be carried out “within a timely manner” or similar wording. Usually if a party does not follow a timeliness requirement, the other party can dissolve the contract. However, if there are extenuating circumstances that create a situation in which the timeliness requirement could not have been satisfied, then courts may take that into consideration and allow the contract to continue.

In the aftermath of Hurricane Katrina, many companies were scrambling to rebuild their companies and manage rebuilding in hopes of returning to some form of New Orleans normalcy. Due to the myriad of weather and levee related problems, common damages included flooding within buildings, broken windows, roof damage, and a number of other damages relating to the huge amounts of wind and rain. The damage was enough to force the city of New Orleans shut down for at least thirty days after the storm. One would think that these conditions might fit with those extenuating circumstances to avoid a timeliness provision regarding how quickly to rebuild.

Conversely, the court ruled that this was not the case. Expert testimony stated that contractors were working to rebuild within two weeks after the storm. Therefore, contracts that included timeliness provisions still had full force. In one case, a lessee had a provision in their rental agreement that stated if there was significant damage the lessor could choose to either repair the property or terminate the lease within thirty days after the disaster. If the lessor chose to rebuild, then he would be required to rebuild within 120 days. In this case, the lessor chose to rebuild, was unable to fulfill the timeliness requirement. Instead, the property was returned to a “shell condition” nearly a year after Katrina hit. The “shell condition” consisted of very few substantial repairs, so that the building could not be used for its intended purpose. Instead, vital things were missing such as doors and doorframes.