Articles Posted in Strict Liability

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On a June night in 2006, Jeryd Zito was driving on a highway going through Plaquemines Parish when an ambulance appeared seemingly out of nowhere. Zito swerved to avoid it, but was not fast enough, hitting the left back corner and the left side of the ambulance. After the accident, Zito sued the owner of the Ambulance, Advanced Emergency Medical Services, Inc., and its insurer, to recover for the damage caused by the accident. While this may seem backwards, the person causing an accident suing, but the issue is much more complicated.

Zito claimed the accident was Advanced’s fault because the drivers were negligent in not taking the proper precautions to warn oncoming traffic that the ambulance was broken down on the side of the road. During the trial, the big issues were how far into the right lane, if at all, the ambulance was, and if there were any warnings on it, such as reflective tape, to signal to oncoming drivers there was something in the way. The rationale is that, while the vehicle was off to the side of the road, people are not expected to see in the dark or sense a blockage up ahead versus a general expectation of reasonable efforts being made to avoid accidents.

The trooper who investigated the accident testified that based on skid marks, the ambulance was parked five feet from the right lane, it was covered in reflective tape when he got there, Zito told him that he (Zito) was on his cell phone at the time of the accident and that there was no evidence that Zito tried to break before he hit the ambulance. The trooper issued Zito a citation for careless operation of a vehicle, which Zito paid without dispute.

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Susan Michelle Canon brought suit in Calcasieu Parish, Louisiana, when her boat caught fire while en route from North Carolina back to Louisiana. The trial court ruled in favor of the sellers, who were from North Carolina, and dismissed them from the suit because of lack of personal jurisdiction. The appellate court upheld this decision. This case is an excellent example of why every lawsuit must be examined for proper jurisdiction to make sure that it is filed properly and that the expected outcome isn’t cut short from the very beginning.

To determine whether personal jurisdiction existed, the court considered a number of factors indicating whether it would be proper to draw the sellers into court in the state of Louisiana. These factors included where the sellers reside, where they do business, where they have registered offices, and whether their business targets a particular region. Their contact with Louisiana must also have been continuous and systematic, to support an assertion of general jurisdiction.

Sellers Raeford and Jennifer Millis here did not have sufficient contacts with Louisiana. They did not live there, do business there, or have a registered office in that state. The boat they sold Ms. Canon was simply listed on the internet, accessible and available to people all over the world. Ms. Canon made the initial contact, and mailed the sale proceeds to a bank in North Carolina, where the Millises live. Ms. Canon also went to North Carolina to execute the bill of sale, using a North Carolina notary, and took possession of the boat in that state. Based on these facts, she could not establish meaningful contacts, ties, or relations between the Millises and Louisiana.

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A person may file a medical malpractice claim when a health care provider unintentionally breaches a contract for service rendered. Medical malpractice claims may be filed when there is a failure to render timely services in the handling of a patient, including loading and unloading of a patient. In Matherne v. Jefferson Parish Hosp. Distr. No. 1 (2012), the Plaintiff, Mrs. Matherne, sought damages for an injury she received when she fell while a hospital employee was transporting her to a hospital bed; and in response to her complaint, the hospital argued the petition was premature because she did not first present the claim to the medical review panel.

Under the Louisiana Medical Malpractice Act (“LMMA”), if a claim is not first presented to a medical review board, a medical malpractice claim against a private health care provider is subject to dismissal on an exception of prematurity. According to La. Civ. L. Treatise, Tort Law § 15:5, the purpose of statutes requiring board review is to: separate frivolous claims from those with merit, alert claimants to the weaknesses of their position, reduce litigation costs, expedite the disposition of cases, and encourage settlement with meritorious cases.

The medical board review panel is composed of four members: three licensed health care providers and an attorney, whose role is purely advisory and cannot vote. The claimant and defendant each choose one health care provider panelist, and the third provider is chosen by the first two. Additionally, if only the defendant is a specialist, then all health care providers on the panel must be from that specialty. The panelists sign an oath of impartiality, review only written evidence, must request additional information from each party if necessary, and deliberate in private. Within thirty days of reviewing the claim or within 180 days of selection of the final panelist, a decision must be reached on whether the health care provider acted negligently by determining whether the standard of care was met and whether failure to follow the standard of care caused the injuries. The panel must give a written opinion delineating the reasons for its decision; this opinion is admissible at trial, but is not conclusive. At trial, the parties may also call the panelists as witnesses.

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Many floors were damaged in Hurricane Katrina. A Louisiana, jury was asked the question: when a floor is rotten, who is at fault when a person visiting the home is harmed?

Juries are often asked to determine liability for an accident. When a person is injured, a jury determines who is liable by listening to both sides of the story and determining who was at fault. If the liable party is insured; insurance companies have to pay big dollars to the person injured. Determining who is at fault can be very difficult.

Sharon Lewis was visiting her father, Clifton Lewis, when she sustained a fall in her father’s home in Marrero, Louisiana. Sharon was walking on the floor in the dining room when she stepped into a soft spot. The floor collapsed and her foot fell through the floor, causing substantial injuries.

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It may be common sense that a person is responsible for consequences caused by their actions. One reflection of this common understanding in legal principles, referred to by lawyers as the “Egg-Shell Skull” Rule, may lead to financial burdens unexpected by people who can be deemed responsible for the events. To understand this Egg-Shell Skull Rule, it is first necessary to know the importance of “causation” in pining legal liabilities to a person.

In situations where a person’s behavior has caused someone else to suffer loss or harm, causation is a crucial element of liability because it connects an injury to a responsible party. This makes sense because if A hit B in the arm and B suffered a fracture, naturally A would be responsible for the injury. Yet if A threw a light kick at the shin of B, who, unknown to A, had a series condition that set of a chain of events that finally resulted in B unable to use his leg at all, A may find herself held responsible for this grievous injury.

The Egg-Shell Skull Rule literally means that if B had a skull as delicate as that of the shell of an egg, and A, unaware of this condition, injured B’s head, causing the skull unexpectedly to break, A would be held liable for all damages.

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According to an American Law Report, it is generally the rule that the owner or occupant of a property touching a public sidewalk does not, solely by reason of being the owner, owe to the public a duty to keep the sidewalk in safe condition. This rule of nonliability is not affected by a statute or ordinance requiring an abutter to construct or maintain an adjoining sidewalk, unless there is an express, contrary provision.

However, the abutter will be liable for injuries resulting from a defective or dangerous condition that is created by his or her own acts, which constitutes negligence or a nuisance under the circumstances. For example, an abutter may be liable for injuries resulting from negligent construction, alteration, or repair of the sidewalk, even though these acts in and of themselves do not create liability.

The courts have usually considered compliance with the requirements of a statute regulating the construction of sidewalks. In a number of cases, knowledge or notice of the defect is a factor for liability, although the courts in many other cases have not treated this issue, given the fact that knowledge or notice of a defect on a sidewalk, as well as its direct cause, is difficult to ascertain.

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Many people wonder what can be done from a legal standpoint to get a better verdict. In situations involving accidents where the damages awarded don’t fully cover the perceived damage, it would be prudent to appeal your verdict. However, before any action be taken, it is crucial to note the role of the Appellate court and its scope of power in reviewing a damage award. This is important for two reasons: (1) to keep expectations realistic and (2) to highlight the pertinent actions to be taken after an injury.

Trying to get a damage award amended on appeal can be an uphill battle, but it is possible. To better understand this amendment process, a recent attempt to amend a general damage award provides a solid example.

In December of 2007, Shirley Langley was the victim of a bee sting, resulting in a severe allergic reaction. She was admitted to American Legion Hospital in Crowley, LA, where the hospital medical staff improperly administered epinephrine to Mrs. Langley, resulting in, amongst other ailments, permanent damage to her heart.

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The duty owed by hospitals to patients is a rather cut and dry area of law. However, a case arising out of West Monroe, Louisiana, illustrates how questions of liability become more difficult when the patients’ visitors are involved. Although a hospital does owe a duty of reasonable care to its visitors, the key is whether there is an “ease of association” between that duty and the risk of harm. Liability will therefore often turn, not on the factual issues of a case, but whether the risk of harm to the visitor is within the scope of that duty.

This was the matter before the Louisiana Second Circuit Court of Appeal in Vanderpool v. Louisiana Extended Care Hospital. The case involved a visitor who was injured after her mother fell off a commode chair. The patient’s daughter was helping her mother onto the chair when the arm gave way. Unable to support her mother’s weight, the daughter fell to the floor and sustained injury. The trial court granted summary judgment to the defendant hospital, meaning there was no issue of material fact and a decision could properly be made without the need for further deliberation.

Reviewing summary judgment for a hospital’s liability usually begins with consideration of the hospital’s legal duty. This was the primary determination in Vanderpool, where the appellate court first addressed the hospital’s duty to the plaintiff visitor. While the hospital had a duty to maintain the commode chair in safe working order and to take other steps to protect the patient, the patient’s visitor was not similarly protected. As the court reasoned, “The hospital’s duty to exercise reasonable care for the safety of visitors would not encompass the unlikely risk that a visitor would sustain an injury in connection with a patient using a commode chair.” The point of a duty of care is not to protect against all possible instances of harm that could arise.

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To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker’s compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker’s compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker’s compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker’s compensation program should be handling your claim, not the court.

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The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms

Assertive Conduct:

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