Articles Posted in Strict Liability

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There are some circumstances under which states and local governments are immune from liability. For example, in most states a state or local government is immune in relation to the normal acts of governance. However, what things a government can be liable for is defined by the state constitution and state legislation. The government can limit its liability in any responsible and constitutional manner possible. In Louisiana, as it pertains to civil liability, state and local government liability is dealt with in La. R.S. 9:2800. In pertinent part this provision states:

“…no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity had a reasonable opportunity to remedy the defect and has failed to do so.”

This provision clearly describes the liability imposed on a Louisiana government in the case that the governmental entity owns and operates property. The types of property can range from sidewalks, roads, public educational institutions, and many other types of property. The essential aspect of when the governmental entity can be liable is based on actual or constructive knowledge and an opportunity to remedy the defect after acquiring the knowledge. Courts have taken great care in defining actual and constructive knowledge. The Louisiana Supreme Court has defined actual knowledge as knowledge of dangerous defects or conditions by a corporate officer or employee of the public entity having a duty either to keep the property in repair or report any defects to the proper authority. The Louisiana Supreme Court has defined constructive knowledge as it is defined in La. R.S. 9:2800, as the existence of facts that infer knowledge. What is crucial is understanding the scope of the definition of constructive knowledge. For example, an absence of a plan to inspect does not confer constructive knowledge on a governmental entity. In the past, plaintiffs have brought claims that attempted to expose local governments to liability based on the governmental entity’s lack of a procedure to inspect publicly owned property on a regular basis.

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Larry Carriere was unable to bring a successful legal malpractice claim against his lawyer because he brought the claim in the wrong venue. Carriere filed suit in Lafayette Parish, where he lived when he hired his attorney, David Szwak. Instead, the suit should have been brought in Caddo, where his lawyer’s law office is because that is where the wrongful conduct occurred.

Filing improperly is a mistake than can be fixed, but such delays can be detrimental; The suit must be brought within a certain period of time. Here, the action was not filed in the proper venue, Caddo, until after the peremptive period had ended. Peremption is a period of time for the existence of a right. If the right is not exercised within that specified time period, the right expires when the peremptive period ends.

Carriere argued on appeal that he exercised his right in a timely manner by changing to the correct venue, and thus interrupted the peremptive period. However, the appellate court disagreed, stating that under Louisiana Law, peremption may not be renounced, interrupted, or suspended.

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A recent case within the Kentucky Court of Appeals demonstrates very extremely the need for quality counsel in all court proceedings. Regardless the subject or reasons you may find yourself in court, it is important that the lawyer you hire is not only able to represent you well in the courtroom and past it. While you would like to think the courts have the rule of law well established in the minds of their judges, a qualified attorney will also review the matters at hand to make sure all ‘facts’ are correct in the proceedings.

In the case of Bramer Crane Servs., LLC v. Structure Builders & Riggers Mach. Moving Div., LLC, a lien issue was reviewed by the superior court of the state. While the actual facts of the case are not important for this post, what is important is that the findings of the court were inherently flawed. Cited in the case was a fact that was severely outdated, as much as 20+ years and two revisions.

As the blog Zlien notes, instead of a clean finding, the court had lapsed in its research and failed to note updated law. The issue was that the ruling relied on judicial precedence rather than a review of legislation passed during this time. While one would like to consider the issue a simple lapse in judicial research, the fact remains that this unpublished decision could very easily have gone unnoticed without people stepping up.

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In a semi-recent Third Circuit Court of Appeal decision, the Louisiana Medical Malpractice Act was explored in order to determine whether the lower Vernon Parish District Court’s decision was appropriate. Despite the sad facts of the case, the appellate court may only overturn a trial court’s decision if there was clearly an error in the record. The appellate court analyzed the necessary requirements of the Louisiana Medical Malpractice Act in order to decide whether or not a doctor’s actions met the standard of care in treating a seriously injured young man. Medical Malpractice requires numerous steps for claimants to take before even reaching the court room. For instance, a person with a claim against a doctor, hospital staff, or the hospital itself has to first submit the claim to a medical review panel. This medical review panel was the primary focus for the appellate court, who had to establish whether or not the panel’s ultimate decision regarding a surgeon’s actions lived up the the applicable standard of care.

The underlying facts giving rise to the case occurred on August 11, 2002, when a young man entered the emergency room at Byrd regional Hospital in Leesville, Louisiana, after suffering a two and one-half centimeter knife wound to the left side of his chest. The emergency room staff noticed that the young man appeared alert despite his labored breathing and low blood pressure. The emergency room physician on duty suspected that the young man was suffering from the presence of air between the lung and the wall of the chest. A chest x-ray, an electrocardiogram (EKG) lab work, and an IV infusion of saline were ordered, and as such procedures were being performed on the young man, the emergency room doctor decided to telephone a general surgeon in private practice in Leesville, asking for his assistance. The general surgeon arrived at the emergency room and ordered a second x-ray in order to determine if there was any other issues involved with the young man’s condition. Throughout this time period, the young man’s blood pressure continued to decrease and his condition worsened. Over one hour later, the general surgeon determined that a large amount of blood had collected in the young man’s chest cavity, but he failed to confirm the emergency room doctor’s determination of a cardiac injury because the young man’s heart sounds were still normal and there was no swelling in the neck vein. The general surgeon then decided that the young man had to undergo surgery to repair what appeared to be a large hole in the left ventricle of the young man’s heart. However, at this point, the young man’s blood pressure plummeted, despite the doctor’s attempts at ordering blood transfusions. Within ten minutes after the young man’s third blood transfusion, the general surgeon made an incision into the left side of the chest cavity, he attempted to repair the laceration with sutures, but the young man continued to bleed at the point of injury. The young man went into ventricular fibrillation and as a result, passed away on the operating table. The young man’s parents sued the general surgeon, asserting that his failure to transfer their son to a hospital with a heart bypass capabilities and staffed with a cardiovascular surgeon constituted malpractice. Following the bench trial, the trial court ruled in favor of the general surgeon, relying on the Louisiana Medical Malpractice Act in order to support their decision.

The Medical Malpractice Act requires a number of steps to be followed in order for a claim to move forward for trial. Importantly, when exploring a medical malpractice issue, La. R.S. 40:1299 states, “[a]ny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law.” Thus, the first argument the plaintiff’s allege as error on the trial court’s part may have been in vain. They alleged that the trial court erred in admitting the medical review panel opinion into evidence and that this error requires the appellate court to undergo a new factual finding of the trial court’s decision. Following the Louisiana statute’s language, the opinions of medical review panels may be utilized by the trial court in handling a medical malpractice case. In fact, medical review panels are designed to review the evidence after any examination of the panel and conclude that either:

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In nearly all cases, sand on a beach is enjoyable and safe. Sand used for sandblasting, however, creates dust that, upon being inhaled by an unprotected worker, increases the risk of lung disease or other lung-based medical concerns. The Louisiana Court of Appeal decided in Bates v. E. D. Bullard Co., that the possibility of problems does not make the sale of a product like sand unreasonable, especially when that use is outside the normal, non-technical purpose.

Wilbert Bates worked for the SBA Shipyards during the 1980s doing tasks that included cleaning and sandblasting. Both types of duties exposed him to silica dust — pieces of sand so small that he inhaled them and they stuck in his lungs that led to silicosis. Silicosis is an industrial disease that leaves its victims short of breath due to small sand particles becoming lodged in the lungs. The presence of particles encourages the growth of fibrous tissue in the lungs, reducing lung capacity. A lifetime of work can result in wheezing and body strain in an attempt to get air.

Bates and his wife sued Specialty Sand Co. and Southern Silica of Louisiana, Inc., which provided sand to the shipyard. The Bateses claimed that the sand was unreasonably dangerous or defective because the sand companies failed to warn and instruct him and the shipyard of the potential hazards.

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At their core, car accidents are inherently unexpected events that only some of the time can be avoided. Two common causes behind avoidable accidents are obstructions in the roadway and distracted driving. While road crews do their best to clean up roads and highways of clutter, flat tires and other types of vehicle damage are unfortunately too common. Similarly avoidable, whether applying makeup, eating in the car, trying to look up sports scores or, perhaps most infamous, texting with friends, Louisiana drivers and those across the United States often try to multi-task to pack more activity in their day. The problem with this is that, all-too-often, carrying out tasks while driving can cause a collision that can have disastrous results, both financially and physically.

The North American International Auto Show opened to the public this week in Detroit and amidst all the new models of cars are a variety of technological features aimed to help drivers avoid catastrophe. While major manufacturers brought along show features, like the Ford VIRTTEX Driving Simulator that replicates distracted driver scenarios in a booth, a variety of parts and technology demonstrations show promise in accident avoidance.

One type of new age tech that is creating buzz is V2X technology, wherein cars are able to communicate and, thus, avoid collisions, signal road conditions and alert to traffic jams. DENSO, a Japanese automotive part company, recently revealed a myriad of technology, including their Active Safety systems, that use monitoring provisions to detect and regulate against car problems. Beyond detection, though, DENSO has prioritized human machine interface (HMI) technology that helps prevent accidents and maintain driver attention. In all, the NAIAS featured an assortment of safety efforts (see the NTSB Chairman’s summary here) all geared to give drivers a technological advantage.

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In the case of Johnson v. Smith, an ambulance driver drove his vehicle into the rear panel of another driver’s vehicle. This occurred in the drive-through lane of a Taco Bell. The defendant ambulance driver was determined to be at fault and lost at trial. On appeal, the defendants urged that certain pictures that had been deemed inadmissible at trial were crucial to their case. They claimed that it constituted reversible error on the part of the trial court not to admit the photographs in question. The appellate court disagreed and affirmed the trial court’s opinion.

The first reason for the appellate court’s decision on the matter of the admissibility of the photographs was that the photographs were not properly authenticated. While the law does not require photographs to be perfect representations of what they stand for, there is a standard that must be met. Photographs must be “sufficiently correct” before being admitted at trial. A trial court is permitted to admit photographs that have inaccuracies as long as the inaccuracies are explained. In this case, the police officer who was attempting to authenticate the photographs as taken by him may or may not have appeared in one of the photographs. This put the true origin of the photographs into question for the trial court. Because evidentiary rulings of a trial court are given great deference on appeal, the appellate court would only have disturbed this finding if it had found an abuse of discretion. Finding no such abuse of discretion, the court did not reverse on these grounds.

Another interesting reason for the appellate court’s decision in this case is that the court did not find that the photographs, if admitted, would have been at all helpful to the defendants who were urging the admission of those photographs. The court noted that the photographs may have been helpful to the plaintiffs in this case but found that the photographs would not have advanced the cause of the defendants. This type of harmless error is not going to result in a new trial for an aggrieved party. The appellate court found that the only real purpose that these photographs served was to establish the identity of the vehicles involved in this accident. None of the parties to the suit disputed the identity of the vehicles involved in the underlying accident.

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The civil justice system has a few bare minimum requirements that must be met before a party can be successful in any given litigation. In order for a party to be successful in a civil action, that party’s case must make sense to the court in terms of the party accused, injury presented, etc. Initiating action against the correct defendant seems like it would be a given, however that is not always the case. Ms. Charise Thomas was injured in a particular location, eventually suing the owner of the location, Mr. Antonio Harris, due to the incident. Ms. Thomas also sued that man’s father, Mr. Aaron Harris. Unfortunately for Ms. Thomas, she did not initiate action against the estate of one Mr. Thirkield J. Smith, the owner of the property on the date of her accident.

The trial court granted Aaron Harris a peremptory exception of prescription and Antonio Harrris a summary judgment. These two different types of relief are granted for different reasons, having similar results but different standards of review on appeal. Each requires different elements in order to be granted to the moving party. In this case, they were also both upheld by the appellate court.

An exception of prescription is granted by a trial court when a certain time period has elapsed between the incident giving rise to a particular suit and the filing of that suit. Since Ms. Thomas never ended up filing against the appropriate party, Aaron Harris’ peremptory exception of prescription was granted and upheld on appeal. The trial court’s decision is given a fairly high amount of deference on appeal and is reviewed under the manifest error standard. If the trial court is found not to have abused its discretion, its decision will not be overturned.

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Location can be crucial in determining what law applies to a given situation. When an ambulance driver struck Mr. Dwight Johnson’s truck in the Marksville Taco Bell drive-through lane, Mr. Johnson and his friend were injured. His truck was damaged as well. Since this accident occurred in a parking lot, the general tort law of Louisiana applies to the case; the Highway Regulatory Act, while potentially persuasive, is not controlling in a situation like this. Relying solely on this source of law could prove detrimental to a party in a personal injury action. The defendants in this case, Smith v. Johnson, were unsuccessful for many reasons, not the least of which was that they failed to convine the court to place the blame for the accident anywhere but on themselves.

One plaintiff in this case, Mr. Johnson, testified that he saw the ambulance, noticed that it was stopped and noted that its brake lights were illuminated. Only then, according to his testimony, did he proceed. There was no testimony concerning Mr. Johnson’s view being obstructed, nor was there evidence that he was speeding presented at trial. Mr. Smith, the ambulance driver, testified that he felt the impact with the other vehicle rather than saw it and evinced that he was not paying attention to the situation in front of him while proceeding forward in his vehicle. The Highway Regulatory Act is not binding on activities in parking lots. It is, however, persuasive. In this case, it was persuasive against the defendants.

This case was not the first time that the Louisiana appellate courts have allocated fault in accidents that occurred in parking lots. The court mentioned two notable cases in its analysis in this case. In Gatheright v. State Farm Mut. Auto. Ins. Co., a standard of due caution was set that applied to all motorists proceeding in a parking lot. In that case, the plaintiff was traveling too fast and not applying her brakes. As a result, she was found to be 100 percent at fault for the accident giving rise to the case. The standard set forth in this case appears to have been refined and clarified in a line of cases that have come after it.

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Drunk people and gasoline mix very poorly. One such ill-advised combination occurred near Bastrop, Louisiana in 2009. The blend of impaired judgment and a highly combustible, but readily available, substance often end in tragedy. That was the case for a Mr. Ryan Brodnax. He and some friends were drinking beer and playing with gasoline near a fire that they started. Mr. Brodnax was injured when one of his friends, in a lapse of impaired judgment, tossed gasoline onto the bonfire. Unfortunately, the friend also inadvertently splashed Mr. Brodnax, resulting in catastrophe. The issue before the court was whether or not a convenience store that sold beer to a friend of Mr. Brodnax, a minor, could be liable for the terrible injuries that Mr. Brodnax suffered.

The convenience store in question sold beer to a Mr. Zachary Nolan. Mr. Nolan was only 19 years of age at the time. This 19-year-old ultimately tossed some gasoline onto the fire, but in so doing splashed Mr. Brodnax with the gasoline and causing Brodnax to go up in flames and suffering significant injury. There was little doubt in the mind of the trial court that such an establishment has a duty not to sell beer to those under the age of 21. The court was also easily convinced that Mr. Nolan had a duty to Mr. Brodnax not to cover him with gasoline. The court also granted Mr. Brodnax’s motion on the issue of medical causation. His injuries were a result of the chain of events that transpired that evening. What lost Mr. Brodnax his case against Super Mart, the convenience store, was that this type of injury was not a “foreseeable” consequence of the selling of beer to a 19-year-old.

A want of foreseeability places the type of injuries suffered in this case outside of the scope of the duty that Super Mart owed to the plaintiff. The appellate court pointed out that the extent of protection owed a plaintiff by a particular defendant is made on a case-by-case basis. The public policy behind this analysis is that defendants should not become insurers of all people against all harms. There has to be a logical nexus between the conduct of the defendant and the consequences that ensued.

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