Property

July 5, 2013

No Contest Ruling Means Damages in Marrero Car Accident Case

On May 8, 2007, in Marrero, Louisiana, two cars were sitting at the intersection of Ames and Lapalco Boulevards. One car carrying a couple sat ahead of a truck carrying one individual. The man driving the truck’s foot slipped off the clutch and the truck rolled into the back of the car. The couple said that the truck hit the car with such force that they jumped out of their seats. Their trunk and bumper had also been slightly pushed in, where there were no damages to the vehicle prior to the accident. The police arrived to document the accident and no injuries were reported on either side.

However, shortly after the accident, the couple experienced a variety of medical issues. While soreness and bruising is common after accidents, the couple experienced a much more serious version of injuries following the accident. The woman claimed roughly $13,000 in medical bills while the man claimed roughly $19,000 after the accident.

During trial, the man driving the truck admitted that this foot slipped off the clutch and he ran into the back of the car. Therefore, the court awarded a directed verdict that concluded that the man in the truck was 100% at fault, and therefore 100% liable, for the accident. The only issue that remained for the jury to decide was how much the couple should be awarded for damages. However, the jury came back with an award of $0.00 for the couple.

July 3, 2013

Car Accident Damage Award Increased in Monroe, Affirmed on Appeal

by Berniard Law Firm

The American justice system places juries in charge of some fairly weighty decisions. However, juries are not the final arbiter of a plaintiff’s rights. There are several post-verdict motions that can be made at the trial level as well as an entire system of appellate courts to which a plaintiff can turn if a jury verdict fails to satisfy.

Sheila Martin, an adult woman incapable of caring for herself, brought suit through her parents against the driver of the vehicle that struck Ms. Martin’s mother’s vehicle, thereby injuring Ms. Martin. The driver, Bruce Walker, conceded liability but no settlement could be reached as to the appropriate amount of damages. Trial proceeded on the issue of damages alone. The jury determined that Ms. Martin was entitled to $25,96.58 for medical expenses, $6,500 for past physical pain and $500 for past mental anguish. No damages were awarded for any future expenses or suffering, most likely because a doctor who had treated Ms. Martin signed a form indicating that she was back to pre-accident status and would not require any future care.

The plaintiffs, however, were not completely pleased with this verdict. They felt it was inadequate compensation for the totality of Ms. Martin’s injuries and as such filed a motion for what is called additur. Additur is an additional award of damages added to a jury verdict by the trial court judge. Judges are not permitted to engage in this type of change in the verdict in all states but Louisiana law allows for it. The judge in Ms. Martin’s case tacked an additional $17,000 on to her award citing Ms. Martin’s soft tissue injury as the reason for which she was entitled to recovery. The court broke down its additional $17,000 into $14,000 for past physical pain, $2,000 for past mental anguish and $1,000 for loss of enjoyment of life.

July 2, 2013

Summary Judgment and its Significant Impact in the Judicial System

by Berniard Law Firm

Is it possible for your case to be over even before it begins? Yes … well, sort of. Through what is known as summary judgment, it is possible for a court to render a decision in favor of one party and against another before there is a trial on the issue. You may be wondering, “What is the point of this?” and “Isn’t it only fair that I get my day in court?” Essentially, the purpose of summary judgment is to avoid unnecessary trials and litigation. It is important to note that although orders for summary judgment are common in civil cases, they do not apply in criminal cases because a criminal defendant has a constitutional right to jury trial.

According to a report researched by the Federal Judicial Center, 26% of all plaintiffs file motions for summary judgment, whereas defendants file 71% of all summary judgment motions. A judge may also on his or her own determine that summary judgment is appropriate. Nonetheless, orders granting summary judgment for defendants can have detrimental effects on plaintiffs who have sustained injuries, financial hardships, and who may have even lost a loved one. The adversity associated with orders of summary judgment can be shown in a recent case out of Jefferson Parish. Favre v. Boh Bros. Construction Co., L.L.C.

In Louisiana, summary judgment is appropriate if the declarations under oath, depositions, admissions of fact, and legal authorities show that there is no genuine issue as to a material fact and the party requesting the order is entitled to a judgment as a matter of law. A fact is considered to be a material fact if it is needed to prove one party’s case, or establishes a point that is crucial to a party’s position and success. Also, a genuine issue is an issue where two reasonable parties disagree. So, for example, if two parties could reach only one conclusion as to the dispute, then there is no need for a trial and summary judgment is appropriate.

June 30, 2013

Car Accident Caused by Slow Merge Raises Legal Issue of Sudden Emergency Doctrine

by Berniard Law Firm

Car accidents can be difficult to navigate because of conflicting evidence, opinions and the fact the circumstances often lead the people involve rattled and unable to recall facts clearly. In a recent case, Bethany Dixon appealed a trial court judgment against her involving a vehicular accident that occurred on I-20 near Acadia in Bienville Parish. In part because Ms. Dixon could not recall exactly how the accident occurred, the court relied on the evidence put forth by the defendant, Charles Tucker, who rear-ended her as she merged onto I-20 from an on ramp. Mr. Tucker believed Ms Dixon was travelling at around 30 mph while he was travelling at the speed limit, 70 mph.

The trial court relied on the sudden emergency doctrine, which states that when a driver merges onto a limited access highway, the driver it merges in front of will not be liable if the lead driver created a hazard that could not be avoided. Here, the court accepted the narrative that Mr. Tucker rear-ended Ms Dixon’s vehicle because Ms. Dixon failed to signal or yield to oncoming traffic, and Mr. Tucker did not have enough notice to avoid the hazard Ms Dixon created. In addition, an eighteen-wheeler in the lane next to him prevented him from switching lanes.

Appealing a ruling is a risk, and is often a question of strategy. In this case, Ms. Dixon was unable to win the appeal in part because the Appellate Court was deferential to the trial court. Ms. Dixon claimed that the trial court erred in its factual findings, rather than legal findings, so the Appellate Court could not simply consider the case anew from start to finish. Instead, the Appellate Court could only reverse the lower court’s finding if the lower court did not have a sufficient factual basis for its findings. Here, the Appellate Court found a reasonable factual basis for the trial court’s outcome, and upheld its decision.

June 29, 2013

Louisiana Court of Appeals Affirms Judgment in Favor of Defendant Companies in Property Damage Lawsuit

by Berniard Law Firm

On February 27, 2012, a district court for the Parish of Lafayette ruled in favor of two defendants being sued by plaintiffs C.F. Kimball II and Linda R. Kimball for property damage. The first defendant, Luhr Bros. Inc. d/b/a Construction Aggregate, owns a shell yard across from the Kimballs’ property on the Vermilion River. The second defendant, Omni Marine Transportation, Inc., owns a vessel that made deliveries to the Luhr Bros. The Kimballs had asserted that both defendants had engaged in business activities that resulted in the destruction of a bulkhead belonging to and located on the Kimballs’ property. The defendants responded by saying that an exception to res judicata prevented the Kimballs from filing a lawsuit against both parties for such damages.

An exception to res judicata signifies that proceedings related to the same occurrence had already taken place and been concluded. Specifically, the defendants claimed that the parties had previously executed a Receipt, Release and Indemnity Agreement in 2002. The Kimballs acknowledged that such an agreement had been executed but claimed that the Release did not pertain to the bulkhead, which the Kimballs had only acquired in 2008. The Kimballs asserted that a Release could not be agreed to for property that was not even in existence at the time of the agreement.

The trial court ruled in favor of the defendants and dismissed the Kimballs’ lawsuit with prejudice, meaning that the Kimballs could not bring a new case on the same basis as the dismissed case. When a trial court rules in favor of the defendants on an exception of res judicata, any issue whose determination was essential to the judgment and already litigated is extinguished. Thus, the trial court found that the issue of destruction of property such as the bulkhead was essential to the proceedings that had already been litigated between the parties, that is, the proceedings that led to the production of the Receipt, Release and Indemnity Agreement.

June 27, 2013

Fall at Hospital Brings to Light Debate Over Liability for Public Entity

by Berniard Law Firm

Generally, if you are injured due to the fault of someone else, you are likely to have a legal claim. However, this is not always the case. You must prove additional elements if you are injured on the property of a public entity. A case involving the West Jefferson Medical Center helps explain these concepts.

A woman was on the way to visit a family member in the hospital when she tripped and injured herself on the sidewalk. One portion of the sidewalk near the parking garage was raised about two inches from the rest, and the woman caught her foot on the raised portion. She fell and suffered injuries to her foot, neck, and shoulder. Then, she filed a complaint against the hospital for damages related to her injuries. Her complaint included her medical records and photos of the raised portion of the sidewalk.

The West Jefferson Medical Center, in Marrero, Louisiana, is a public entity because it is state sponsored. As such, the woman needed to prove not only that she was injured, but also the additional elements that are required for a suit against a public entity. Requirements for suit against a public entity include: establishment that the thing that caused the damage was in the custody of the public entity, the thing was defective because it had a condition that caused an unreasonable risk of harm, that the public entity had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was in fact the cause of the plaintiff’s injuries.

June 25, 2013

Tragic Workplace Accident Provides Insight Into Duty of Care

by Berniard Law Firm

A former employee of the Mansfield, LA, branch of the International Paper Company, met with a fatal accident while on the job. While repairing a valve on the platform surrounding the top of a whitewater tank, he fell through the access opening and into the tank.

Access opening covers are not rooted firmly to the tank and are known to become dislocated if the tank contains overpressurized liquid, or if the liquid and debris overflow. Evidence in the form of photographs show that debris had accumulated around the access opening that the deceased had fallen into, indicating that the opening may have been dislodged before he had fallen into the tank. As a result of the incident, the widow of the deceased filed suit against the manager of the Mansfield paper mill and the engineering company that designed and constructed parts of the whitewater tank that the employee fell into.

The engineering company, Stebbins, had a contract with International Paper Company to inspect the durability of its whitewater tanks at many of its locations worldwide. The inspections conducted by Stebbins brought knowledge that some whitewater tanks were over-pressurized and were overflowing. The victims’ family contended that Stebbins’ knowledge of this hazard created a duty on the part of Stebbins to inform the International Paper company of the unsafe practice. The issue, however, was that Stebbins had no such inspection contract with the Mansfield paper mill where the deceased met with his accident.

June 24, 2013

Liability When an Escaped Prisoner Injures an Innocent Community Member

by Berniard Law Firm

What sort of liability arises when an escaped prisoner causes personal injury to someone? It’s certainly not a typical question with which tort law deals. The matter arose in Acadia Parish, where prisoner Jack Stansberry escaped from a hospital, stole a vehicle, and injured plaintiff Nelwin Rider in the process. The trial court granted partial summary judgment in favor of the plaintiff, but the Louisiana Third Circuit Court of Appeal reversed.

The trial court considered summary judgment motions by both the law enforcement defendants and the plaintiff. Summary judgment motions are designed to ensure more efficient use of court resources by granting judgments when there are no genuine issues of material fact. The trial court found the law enforcement defendants solely at fault for plaintiff’s injuries and granted plaintiff’s motion. In reversing this judgment, the appellate court held that there were genuine issues of material fact as to whether the prisoner was in the process of escape when the plaintiff was injured. For this reason, the court of appeals said, summary judgment was not proper.

The matter before the trial court was one of negligence. Generally, courts are careful in such cases to lay down specific tests that must be met before assigning liability for injury. While recognizing the duty of prison custodians to act with care in managing prisoners, the appellate court affirmed that this is not an absolute duty intended to forego all potential harm. This duty “is not intended to protect persons from harm inflicted by inmates who have already escaped and who subsequently commit tortious acts in the furtherance of their own pursuits.” This important line, dividing a prisoner’s escape from subsequent activity, was drawn by previous court decisions and was critical to assessing the propriety of the trial court’s summary judgment ruling.

June 21, 2013

Dog Injury in Lafayette Leads to Examination of Liability

by Berniard Law Firm

The Court of Appeal of Louisiana, Third Circuit, recently ruled in the summer of 2012 on an issue coming out of the Parish of Lafayette involving a variety of legal questions. In the case of Theresa St. Julien v. Julie Walters Landry, Julien was allegedly injured by her neighbor’s dog when it came free from her neighbor’s yard and knocked her down while on her own property. Immediately there are negligence and strict liability issues when it comes to this event: Who owned the animal? Who secured the animal? Who was in charge of the animal at the time of the accident?

The St. Julien case is a perfect example of how a mishap in filing documents, leading to admitted facts, can result in the downfall of a defendant who assumes responsibility by not denying it. After failing to answer the plaintiff’s complaint on time, Landry admitted to being the owner of the dog and that it was being kept on her property under her control. The court found that there were genuine issues on multiple material facts and for that reason reversed the decision of the lower court in favor of St. Julien, which will result in a trial. The larger issue for the public is whether it even mattered if Landry was determined to be the dog’s owner.

Dogs are one of the most commonly owned domestic animals and also result in a large number of injuries throughout the state of Louisiana but also across the country. Many times these injuries occur to complete strangers but, nevertheless, owners of inherently dangerous animals need to be responsible for injuries resulting from the actions of those animals. The harder question is what is to be done when the animal injures another while in the care of someone who is not the owner. This is why the courts of this nation have adopted the theory of strict liability.

June 20, 2013

Third Circuit Reverses Lafayette Court Ruling on an Exception of No Right of Action Claim

by Berniard Law Firm

On October 3, 2010, Darnall and Michelle Carter suffered the loss of their son Kyris in a drowning incident at a party. On April 25, 2011, the Carters filed wrongful death and survival actions against Steak House Steaks, Inc., James Nations Jr., the alleged owner of the property where the party was held, and XYZ Insurance Co. Wrongful death and survival actions are civil lawsuits initiated by the family members of a deceased victim to obtain a monetary settlement from the person or people responsible for the death of their loved one. Under Louisiana law, there is an established order concerning who has first priority to take these civil actions, with the children of the victim having the first right to file against the wrongdoing party. If the victim had no children then his or her siblings may bring the matter to court, and if the victim had no siblings, then the right falls to the victim’s parents.

Since Kyris Carter did not have any children or siblings, his parents Darnall and Michelle were within their rights to bring wrongful death and survival actions on his behalf. However, the trial court in Lafayette ruled in favor of a motion filed by the defendants in June 2011 for an “exception of no right of action” and dismissed the defendant parties from the lawsuit. According to the defendants, the plaintiffs had no right of action, that is, they did not have a right to bring the wrongful death and survival action claims because the defendants were not the owners of the property where the accident occurred, nor were they the hosts of the party where Kyris Carter died.

The details of the party in question are not laid out by the Court of Appeal or the lower court, but the particular facts concerning who hosted the party or who may have been responsible for the drowning accident should not have been taken into account when the trial court was deciding the motion. In 2012, the Court of Appeal held that the trial court had erred in its assessment of the legal procedural issues involved in the defendant’s motion. The purpose of the “exception of no right of action”, it said, is “to challenge whether a plaintiff is the proper party to file an action, not whether a defendant is the proper party against whom an action can be filed.” In other words, even if Darnall and Michelle Carter had mistakenly initiated a lawsuit against the wrong defendants, the motion used by the defendants should not have been the one used to challenge such an error. The “exception of no right of action” can only be used to challenge whether a plaintiff is the right person to be filing the lawsuit in the first place. Since Darnall and Michelle were proper plaintiffs in this lawsuit, there was no ground for this exception.