Articles Posted in Semi Truck Accident

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A defendant who wishes to challenge a jury’s damages award can petition the court for a new trial. As this is often an undesirable path for both the defendant and the plaintiff, Louisiana law offers an alternative approach: when the trial court believes that the verdict is “so excessive … that a new trial should be granted for that reason only,” La. Code Civ. Proc. art. 1814, it can order remittitur. This option is available only if the plaintiff agrees to it, under the assumption that accepting a lower amount of damages may prove preferable to another trial. The trial court is permitted to order remittitur “only if the issue of quantum is clearly and fairly separable from other issues in the case.” The recent case of Great West Casualty Co. v. AAA Cooper Transport offers an instructive example of Louisiana’s remittitur statute as applied by the Court of Appeals for the Fifth Circuit. On November 27, 2006, a tractor-trailer which operated by Juan Rodriguez-Salas was struck by another tractor-trailer; the second truck was being driven by Ray Johnson and was owned by AAA Cooper Transportation. Rodriguez-Salas’s truck rolled over, and he suffered injuries to his right shoulder as a result. Rodriguez-Salas sued Johnson and AAA Cooper in the U.S. District Court for the Middle District of Louisiana. He sought to recover for his medical expenses and damages for pain and suffering and lost wages. After a trial, the jury awarded Rodriguez-Salas $38,000 for lost wages; $120,000 for pain, suffering, and mental anguish; and $10,000 for loss of enjoyment of life. AAA Cooper, objecting to the damages award, filed a motion for a new trial. The district court entered judgment on the verdict and denied AAA Cooper’s motion. AAA Cooper appealed, seeking a reduction in Rodriguez-Salas’s $130,000 general damages award on the theory that Rodriguez-Salas’s injuries were to only one shoulder and only required treatment for eight months; in AAA Cooper’s view, $40,000 was an appropriate amount.

The Fifth Circuit, in applying Louisiana law, first reviewed the district court’s finding that a new trial was unnecessary. The district court determined that sufficient evidence of Rodriguez-Salas’s “injuries, medical treatment and recovery, and the effect of both on his work and daily activities” had been presented at trial “to reach a fair determination of his general damages and lost wages.” The Fifth Circuit agreed, noting that the record included such evidence as Rodriguez-Salas’s testimony about his injuries, testimony from doctors about Rodriguez-Salas’s condition, and Rodriguez-Salas’s medical records. Accordingly, in affirming the trial court’s judgment, the Fifth Circuit concluded that “the district court did not abuse its discretion” and that “the award [was] not against the great weight of the evidence.”

Although remittitur offers the parties in litigation a more efficient means by which to resolve a dispute over a damages award, it is still subject to many of the same limitations that apply to appeals in general — that is, that great deference must be afforded a jury’s award of damages. Only through a showing of abuse of discretion by the trial court can a defendant prevail on a remittitur action.

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When apportioning fault between two or more parties in a negligence action, the finder of fact is given great deference on review. An appellate court may not set aside a trial court’s finding unless there is “manifest error” or it is “clearly wrong.” Cole v. Dept. of Public Safety & Corrections. In order

to reverse the trial court’s apportionment of fault, the appellate court must “find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong.” The Louisiana Supreme Court has provided extensive guidance on the trial court’s responsibility for allocating fault. The court is “bound to consider the nature of each party’s wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed.” Watson v. State Farm. Furthermore, in assessing fault, the trial court can consider several factors related to a party’s conduct, including:

“(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.”Watson

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When an accident occurs as a result of poor road conditions the question arises whether or not those responsible for the road’s upkeep can be held liable. This was the issue at hand when Jesse Brooks was killed after the backhoe he was driving on Highway 30 in Iberville Parish hit a depression in the shoulder and rolled on top of him. The appellate court held that the Louisiana Department of Transportation and Development owed a duty of care to all motorized vehicle operators on state highways and that that duty was breached by a failure to maintain the highway in a safe operating condition. The Supreme Court of Louisiana, on the other hand, reversed the ruling and laid out an outline of when and to whom the DOTD owes a duty of care.

In deciding these types of negligence cases, the court invokes an unreasonable risk of harm criterion in an attempt to balance possible harm with social utility, including costs to the defendant of avoiding the harm. Thus, the risk of injury or death, which was high in the Brooks case, will be weighed against factors such as the legality of the vehicle being driven on the highway, the social good that was coming from the highway’s use, and the cost of highway maintenance.

Since state funding is limited, it is almost fiscally impossible to require the DOTD to maintain highways in such a state as to be safe for all vehicles, even those not designed for highway use. Thus, the court will first determine if the vehicle involved in the accident was designed for highway travel. In the Brooks case, the backhoe he was driving was not designed for the highway. This fact, along with his excessive speed for such an unbalanced vehicle, outweighed his social good, which was simply moving a backhoe from one business to another. In addition, the cost to fix such minimal highway shoulder defects would burden the DOTD in an unacceptable manner when the risk could have been minimized by Brooks himself through his speed and choice to drive an unsuitable vehicle on the highway. Essentially, the court reasoned that Brooks was taking a more unreasonable risk than the DOTD, and thus ruled the DOTD is not liable for Brooks’ death.

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Car accidents are never pleasant, but when an accident is worsened by construction debris left on the side of the road, the outcome can be disastrous. Once the pain and suffering has subsided, the question needs to be asked, who’s responsible? Do we look to the construction company, or do we simply chock it up to the terrible luck of the drivers? More importantly, how does the state play into this accident, and when is it the responsibility of the state department to compensate for injuries resulting from construction debris? The 3rd Circuit Court of Appeals addressed those issues in the case of Thibodeaux v. Comeaux.

Jennifer Thibodeaux, the plaintiff in this case, was injured in a car accident off of Highway 190 in St. Landry parish. As Ms. Thibodeaux began to cross to the next lane, her car collided with another vehicle driven by Mr. Bill Comeaux. The collision caused Ms. Thibodeaux to lose control of her vehicle and travel off the highway, where her vehicle slammed into a large cement block and other debris on the shoulder of the highway. The cement and debris had been placed there during on-site construction by a contracted construction company, Gilchrist Constriction, hired by the defendant, Louisiana’s Department of Transportation and Development (DOTD). Ms. Thibodeaux was ejected from her car and sustained multiple injuries, including spinal fractures, lower jaw fractures, and a lacerated spleen. Among the others involved, Ms. Thibodeaux filed a claim against the DOTD for their responsibility in the accident. At the conclusion of the trial, the jury found that the debris and cement left at the site were the sole responsibility of Gilchrist Constriction, and not the responsibility of the DOTD. Therefore, the court found that the debris and cement created an unreasonable risk of harm and Gilchrist was 40% responsible (with the other 60% of liability ordered to Ms. Thibodeaux herself).

Ms. Thibodeaux’s appeal contends that the trial court erred in finding the cement and debris was not an unreasonable risk of harm caused by DOTD. The assignment of DOTD as responsible for the debris and cement questions the distinction between a factual and legal determination. For legal determinations, as stated in Becker v. Dean, the appellate court must review, de novo, the proper legal analysis to render a judgment on the merits. The appellate court looked to determine whether the factual determination by the trial was actually a legal determination that required a different form of review.

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Plaintiff Sherrie Lafleur was injured in an April 2007 rear-end collision on Ambassador Caffery Parkway in Lafayette. Mrs. Lafleur was waiting for a traffic signal when Brenda Nabours drove her vehicle into the rear of Mrs. Lafleur’s vehicle. The low-impact collision caused no damage to Mrs. Nabours’ vehicle and no structural damage to Mrs. Lafleur’s car.

Mrs. Lafleur filed suit against Mrs. Nabours (and Mrs. Nabours’ insurer Shelter Mutual Insurance Company) claiming that she suffered a severe neck injury as a result of the accident. Shelter admitted liability for the collision and the case proceeded to trial without a jury on the issues of causation and damage. The trial court found the debilitaing injuries claimed by Mrs.Lafleur were not a result of the collision and actually predated the accident by many years. The trial court awarded the medical damages incurred by Mrs. Lafleur from the date of the accident through August 2007 in the amount of $5,457.97. The court found Mrs. Lafleur failed to prove by a preponderance of the evidence that her remaining medical treatment was necessitated by the Collision. The trial court also awarded general damages of $10,000. Mrs. Lafleur appealed the award claiming both the calculations for special and general damages were abusively low and contrary to the evidence.

Special damages are awarded to repay you for financial losses you have suffered. In Lousiana, the amount of special damages awarded is a finding of fact subject to the manifest error standard of review. Under this standard, the appellate court looks to whether the factfinder’s conclusion was a reasonable one not whether the trier of fact was right or wrong. If the conclusion was reasonable, a reviewing court may not reverse even though convinced it would have weighed the evidence differently. Where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous.

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After working at his job as a recruiter for the U.S. Army, Sergeant Sean Fowler went out drinking with friends on the evening of February 4, 2008. He returned to the recruiting station in Covington briefly to pick up some personal belongings before heading home, as he had the following day off from work. At about 12:30 am early Mardi Gras morning, Fowler fell asleep at the wheel of his government-owned vehicle (“GOV”).

At the intersection of Harding and Howell Boulevards in Baton Rouge, he collided with a car driven by Fartima Hawkins. Fowler, who submitted to a breathalyzer test at the scene, had a blood alcohol content of 0.112%, which was over the legal limit in Louisiana of 0.08%. Hawkins, who sustained serious injuries in the crash, sued Fowler and the U.S. government in federal district court. Her complaint asserted that Fowler was acting within the course and scope of his employment at the time of the crash and, therefore, the government was liable under the doctrine of respondeat superior. The district court granted the U.S. government’s motion for summary judgment. Hawkins appealed, arguing that a genuine issue of material fact existed over whether Fowler was acting within the scope of his employment at the time of the accident.

The U.S. Court of Appeals for the Fifth Circuit conducted a de novo review of the district court’s decision. Hawkins’s case against the federal government was premised on the Federal Tort Claims Act (FTCA), which limits responsibility for injury to that which is “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA, the question of whether a negligent act occurred within the course and scope of a federal employee’s duty is settled according to the law of the state in which the alleged act occurred. See Garcia v. United States. Thus, the Fifth Circuit applied Louisiana jurisprudence in its analysis. Generally, an employee’s conduct is within the course and scope of his employment if it is (1) of the kind of conduct that he is employed to perform; (2)it occurs within the authorized time and space of employment; and (3) it is initiated, at least in part, by a purpose to serve the employer. See Orgeron v. McDonald. The default approach in Louisiana is the “going and coming” rule: that is, when an employee is involved in a car accident on his way to or from his place of employment, it is considered to be outside of the course and scope. An exception to the rule is when the employee uses an employer-owned vehicle in the “performance of an employment responsibility.” Factors that influence the analysis include: (1) whether the employee’s use of the vehicle benefitted the employer; (2) whether the employee was subject to the authority of the employer at the time of the accident; (3) whether the employee was authorized to use the vehicle; and (4) whether the worker was motivated to use the vehicle, at least in part, by the employer’s concerns. Brooks v. Guerrero. The court found “no evidence … that Fowler’s use of the GOV was related to any employment responsibility or was of any value to the Army.” Instead, the court found that “Fowler was going home for the Mardi Gras holiday at the time of the accident” and, accordingly, was not acting within the course and scope of his duties as an Army recruiter. Although the court recognized that Fowler’s “permission to use a GOV on the evening of the accident [was] genuinely disputed,” it held that the settlement of that issue was not essential to determining the course and scope of employment. Thus, the court concluded that “no genuine issue of material fact exists that might preclude entry of summary judgment in favor of the United States.”

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The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA’s form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

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Louisiana law requires that the driver of a motor vehicle maintain a safe distance from other cars and that the driver “not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” A driver who rear-ends another car is “presumed to have breached this duty” and, therefore, is assumed to be negligent. To challenge this presumption, the driver must prove he was not at fault for the collision by establishing two facts: 1) that he had his vehicle under control, and 2) closely observed the lead vehicle and followed at a safe distance under the circumstances. See Broussard v. Zurich American Ins. Co. The driver can also avoid fault by showing that the driver of the leading car “negligently created a hazard which could not reasonably be avoided. In the case of a multi-car accident, “the fact that the second driver is able to see and avoid an emergency situation ahead sets the standard of care applicable to the other following drivers.” Anderson v. May.

A three-car accident was at the center of Ebarb v. Matlock, a case recently decided by Louisiana’s Second Circuit Court of Appeal. On December 3, 2008, Yolanda Ebarb was driving her Kia Sorento in the left east-bound lane of I-20 in Bossier City. As she approached the overpass at Old Minden Road, she observed that the traffic ahead in both lanes had stoped. She applied her brakes and came to a complete stop safely behind the vehicle in front of her. A moment later, David Terry, driving his Jeep Cherokee also in the left east-bound lane of I-20, approached the same location. Terry noticed the stopped traffic and safely stopped his vehicle directly behind Ebarb’s.Then, Terry’s Jeep was hit from behind at high speed by a Ford F-250 pickup truck driven by Phillip Matlock. The Jeep pushed forward, rolled over, and collided with Ebarb’s Kia. Ebarb suffered a serious spinal injury as a result. Matlock was cited for following to closely at the scene. Ebarb sued both Terry and Matlock. The trial court granted summary judgment against Ebarb in Terry’s favor and against Matlock in Ebarb’s favor. Matlock appealed. The Second Circuit reviewed the law on rear-end collisions in Louisiana and the presumption of negligence against the driver. The court applied a duty-risk analysis to the circumstances and to Matlock’s conduct, which was bolstered only by his “self-serving statements” that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance under the circumstances.” The court concluded that Matlock failed to meet the standard of care “established” by Terry and Ebarb when they were both able to safely stop their cars after coming upon the stalled traffic. The court noted that “to rebut the objective evidence that two other drivers were able to safely stop and avoid a collision, Mr. Matlock has failed to offer any competent evidence.” Because Matlock “failed to establish that he will be able to rebut the presumption of his own negligence at trial,” the court affirmed the trial court’s judgment for Ebarb.

The facts of this case left Matlock with little opportunity to rebut the presumption of his negligence in rear-ending Terry’s Jeep. That Ebarb and Terry both managed to stop safely when they realized the traffic was stopped ahead suggests that any reasonable driver in control of his vehicle should have been able to do the same. Without evidence of any mitigating circumstances, Matlock’s defense was overcome by the presumption of his negligence.

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This post continues from yesterday:

The trial court relied on the testimony of Mr. Williams’ account of events leading up to his injury in making its conclusion of what occurred. While the trial court did hear testimony from an IESI employee who stated that the garbage trucks did not have flaps on the top of the garage truck capable of causing the damage to the cable box, the trial court felt that the demeanor and testimony of Mr. Williams made him a credible witness. Though there were a few inconsistencies with Mr. Williams’ story, the trial court was confident in his consistency with the major details of the incident to rely on Mr. Williams’s testimony about the garage trucks flap. The appellate court concluded that there was no manifest error in the trial court’s ruling that there was a flap rising form the top of the truck.

The appellate court dismissed IESI’s second argument because the court failed to again find any clear error made by the trial court in its conclusion that Mr. Williams had in fact met his burden to show that IESI had breached their duty. Benjamin v. Housing Authority of New Orleans notes that, through the question of whether a defendant had a duty to the plaintiff is a question of law, the question of whether the defendant breached that duty is a question of fact. IESI did not dispute that they owed a duty to Mr. Williams, only that the evidence was insufficient to show that IESI had breached that duty. Again, the appellate court is required to apply the manifest error doctrine to determine whether a trial court clearly erred in its factual determination of breach.

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Freak incidences occur every day that do have very real consequences for the responsible party. While some things may seem unavoidable for the victim, the party which caused the injury must go before a court and try to prove their innocence. One recent case, involving a garbage truck and down cable wire, helps illustrate how even unusual chains of events can have real consequences.

The plaintiff, Randy Williams, filed suit against the Louisiana Corporation IESI after the company’s garbage truck caused neck and shoulder injury to Mr. Williams. On December 17 2003, Mr. Williams stopped the IESI owned garbage truck during its daily garbage pick-up to request the help of the garbage men. Mr. Williams was requesting the help of the men to get his garbage can to the curb. After the men provided him assistance, Mr. Williams went to the trunk of his car. Mr. Williams testified that he heard a snapping noise and was suddenly struck by the end of a cable wire. It was concluded that the top of the garbage truck had snagged on the end of the cable wire as the garbage men continued on their route after assisting Mr. Williams. After the IESI employee’s realized what had happened, they pulled the wire loose from the truck and informed Mr. Williams that they would send help to fix the cable wire. The trial court found the IESI to be 100% liable to Mr. Williams’ injuries, awarding him just over $50,000.00. The appellate court affirmed the trial court’s ruling, while bringing to light the standard needed by a plaintiff to succeed in the different factual and legal questions required to hold a person liable for negligence.

A prima facie case (or a case in which the evidence presented is sufficient for a judgment) of negligence rests on a plaintiff’s ability to show that a duty was owed to the plaintiff by the defendant, the defendant breached that duty, and actual damage resulted as a direct cause of that breach. IESI believed that the trial court incorrectly determined that Mr. Williams had successfully met this burden. IESI made three arguments to the 3rd Circuit, requesting a reversal of the trial court’s decision: (1) IESI claims the trial court erred in concluding that a flap on the top of the garbage truck was what snagged the cable box and caused the accident; (2) IESI claims the trial court erred in finding that Mr. Williams met his burden of proving that IESI breached its duty of care to Mr. Williams; and (3) IESI claims that the trial court erred in failing to consider the possibility that the injury was in part the fault of the cable company in failing to maintain the cable wire as required by Louisiana regulation.

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