Strict Liability

January 3, 2013

Prescription Limits Discussed in Case Coming from Baton Rouge Fall

Lawsuits have limitations on when an individual can sue. These limitations are important so that people will not dread being sued for some things for their entire lives. It is also important because evidence will be fresher and readily available the sooner the lawsuit commences. However, these limitations also imply that those injured and lawyers need to act quickly and efficiently in order to get claims filed in timely manner.

In Louisiana, these limitations are known as liberative prescription. Their common-law counter-part is the statute of limitations. There are also two other types of prescription in Louisiana: acquisitive and prescription of nonuse. Acquisitive prescription is a means of getting ownership of property though possession for a period of time. For example, if you possess land for an uninterrupted period of ten years in good faith, hold it publicly and peacefully, and act as if you are the owner then you will eventually actually own the property. The common-law counter-part for this concept is adverse possession. The last type of prescription is the prescription of nonuse whereby your rights, other than ownership, can be extinguished if you do not use the property for a period of time. Usually that time frame is ten years as well.

The length of each liberative prescription is different depending on the type of case. For example, personal injury cases have a liberative prescription of one year. Therefore, the case must be brought within one year of the date of the accident or the court will not hear the case.

December 29, 2012

Appeals Court Determines Judgment Due to Conflict of Fact

by Berniard Law Firm

Juries have always been an important part of our legal system. Although many people dread jury duty, they are really performing a service when they are called. That service involves providing a judgment by a panel of your peers. We place a great deal of value in judgment rendered by your fellow community members.

Generally, juries consist of twelve people and nine of those twelve people have to agree to whatever outcome of the case is appropriate. The jury is allowed to speak with one another and look over evidence to make this determination. While the verdict may be as general as guilty or not guilty, there are also cases where the jury will be asked specific questions related to the case. As a rule, the jury is a finder of fact and their fact conclusions are treated as if they are complete fact, even if there may be some question. If the jury concludes that the grass is blue and the sky is green, then that’s how it is.

However, if the jury comes up with a ridiculous verdict given the circumstances, then the judge can reverse them. If the jury says the grass is blue and the sky is green, then the judge will recognize how strange that is and override their determination. If the question is closer, however, the judge will default to whatever the jury decides.

December 27, 2012

Worker’s Injury After Hours at Workplace Puts Claim Process Under Scope

by Berniard Law Firm

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.

December 19, 2012

Home Fire Worsened Due to Parish Road Crew Severing Phone, Water Lines

by Berniard Law Firm

In 2006, a mobile home caught fire in Winnfield, Louisiana. The couple that owned the home was obviously frightened and confused. However, they were especially concerned because their phone line was not working and their water had virtually no pressure. Therefore, the husband drove to a neighbor’s house to seek a phone to call the fire department and the wife stayed at home to try to control the flames. Because of the lack of water pressure, unfortunately, the flames became too much for the woman to handle. These two factors, the lack of phone and water pressure, no doubt contributed to the excessive amount of damage to their home.

Why did these disastrous conditions occur? The Winn Parish road crew accidentally cut their phone and water lines three days before the fire. They were in the process of fixing the water line and the phone company had yet to send someone out to fix the phone line when the fire occurred. The fire was caused by an unrelated incident, but the three occurrences combined proved to be disastrous for the couple.

The couple contacted their insurance company right away to help with the expenses. The insurance company provided $55,047.55 in compensation costs based on their homeowners’ insurance coverage. However, the couple also sued the Winn Parish Police Jury because they thought the damage caused by the fire would be much less had they had the use of decent water pressure and phone line to contact emergency personnel.

December 17, 2012

Class Action Involving Plant Releases Demonstrates How Certification Occurs

by Berniard Law Firm

Creating laminated veneer lumber and I-Joists, which are used in residential and commercial construction, require toxic chemicals such as formaldehyde, phenol, and methanol. The chemicals also end up in the waste products of plants that produce these goods. In the Parish of Natchitoches, hundreds of individuals discovered the damage that these chemicals could cause. These individuals stated “that sawdust from the plant fell like snowflakes upon them, their children, their homes and their cars.” The plant admitted that accidental release of admissions were fairly common, and they were all observed and recorded.

As a result of this exposure, hundreds of plaintiffs joined to form a class action lawsuit. A class action lawsuit involves numerous individuals who have suffered in a similar manner, usually resulting from the same incident or series of incidents. Class action lawsuits allow individual people to get compensation for damages where they may not have been able to if they just sued by themselves.

The damages in this case not only included the obvious mess that sawdust would create in a home, but also included an array of medical issues. Some examples include conjunctivitis, difficulty breathing, wheezing, coughing, bronchial pneumonia, and asthma. The side effects of exposure to the chemicals in the plant were relatively the same as those claimed by hundreds of nearby residents.

November 14, 2012

Questions Over Uninsured Motorist Coverage Rejection in Bossier Parish

by Berniard Law Firm

Louisiana law, in providing for uninsured/underinsured motorist (“UM”) coverage, reflects the state’s strong public policy of providing full recovery to victims who suffer damages in car accidents. If an at-fault driver lacks sufficient insurance coverage, the UM provision of the victim’s own policy will operate to make up the shortfall. UM coverage will be read into an insurance policy by default unless the coverage is rejected, and rejection “shall be made only on a form prescribed by the commissioner of insurance,” where the “form shall be provided by the insurer and signed by the named insured or his legal representative.” The following requirements must be met in order to create a valid rejection: 1.initialing the rejection the UM coverage; 2. printing the name of the insured or legal representative; 3. signing the name of the insured or legal representative; 4. filling in the policy number; and 5. dating the form. In cases of dispute, the insurance company bears the burden of proving that the insured rejected UM coverage, but a properly completed form “creates a rebuttable presumption that the insured knowingly rejected UM coverage.” A dispute over the waiver of UM coverage formed the basis of a case that came before Louisiana’s Second Circuit Court of Appeal earlier this year.

On July 21, 2008, Richard Gunter, a Bossier Parish police jury employee, was injured when the parish-owned vehicle he was riding in as a passenger was struck by another vehicle. Gunter filed suit against the driver of the other vehicle and her insurer, Gunter’s own insurer, and St. Paul Fire and Marine Insurance Co. Gunter alleged that St. Paul provided UM coverage for the police jury. St. Paul filed a motion for summary judgment, stating that the police jury had rejected UM coverage under its policy. The trial court granted summary judgment on behalf of St. Paul; Gunter appealed on the grounds that material facts about whether the police jury knowingly and properly rejected UM coverage were in dispute.

St. Paul’s position that the police jury rejected UM coverage was based on the fact that the parish administrator had completed a UM waiver form on September 27, 2007. Yet, the parish president’s testimony via affidavit revealed uncertainty as to whether the administrator had the authority to reject UM coverage, or whether such an action required approval by the parish finance committee. The court noted that “the record does not show that [the parish administrator] acted with the agreement, knowledge, or approval of the police jury in rejecting UM coverage for the policy period at issue.” Thus, “considering the strong public policy favoring UM coverage,” the court concluded that there were “genuine issues of material fact as to whether [the parish administrator] was authorized … to reject UM coverage on behalf of the police jury as its legal representative and whether the police jury knowingly rejected UM coverage for the relevant policy period.” Accordingly, the court reversed the trial court’s granting of summary judgment.

November 12, 2012

Court of Appeals Increases Judgment Amount in Slip-and-Fall Accident

by Berniard Law Firm

A plaintiff from Acadia Parish had her award increased by over $10,000 by the Third Circuit Court of Appeals after slipping and falling on the curb of a dark parking lot at night.

In the case, Darbonne v. Bertrand Investments, Inc., No. 11-1224, the plaintiff had gone to pick up some friends from a bar after a night of drinking. The plaintiff, who was sober, led her friends out the back door of the bar toward her car. In the dark parking lot, the plaintiff tripped over a curb, breaking her foot. She later required two surgeries to repair the damage, and the foot was still swollen at the time of her trial.

The plaintiff brought a lawsuit against the owners of the convenience store next to the bar. She claimed that the owners’ failure to light their lot caused the darkness that led to her breaking her foot. She alleged that if the owners had kept their lot in a reasonably safe, lit condition, she would not have tripped over the curb.

November 7, 2012

Wrongful Death Case Clarifies the Use of Expert Witnesses

by Berniard Law Firm

In trial, experts are individuals who have specific knowledge about their field beyond what the average person would have. That knowledge could be about a broad, technical field such as neuroscience or it could be something as simple as a neighbor who constantly watches the happenings in the neighborhood. As a result of their experiences, those individuals have special knowledge that they are able to share with the judge and jury at a trial.

However, in order to allow an expert to testify at trial, there are certain criteria that must be met. Recently, thanks to a State of Louisiana Third Circuit Court of Appeals case, those requirements have been spelled out explicitly. The case involved the death of a teen as he was driving down a slippery highway in the evening on Highway 102 in Jefferson Davis Parish. He lost control of his vehicle as he was driving around a curve and the vehicle struck a headwall of a cement culvert that ran under the roadway. The vehicle rolled over into the ditch and partially ejected the teen; his head and neck were trapped between vehicle and the ditch. He died as a result of his injuries.

The family brought a wrongful death action against the Department of Transportation and Development (DOTD), arguing that the road was maintained in a hazardous condition. They contended that headwall of the concrete culvert was slightly above grade by about three inches and that the slope of the ditch was steeper than it should be. Obviously, both of these claims involve a lot of technical information about highways and regulations that the average person would not know. Therefore, when this case got to trial, both sides called in experts to determine whether these conditions were violating any rules and whether the above grade culvert and the slope of the ditch could have contributed to the accident regardless of whether they were maintained improperly.

November 2, 2012

Overturned Alexandria Jury Award Demonstrates Power, and Limits, of Court of Appeals

by Berniard Law Firm

Our justice system puts a great deal of important decisions in the hands of juries. Criminal defendants and civil defendants often find their fates in the hands of some number, varying by jurisdiction, of people with no specific training whatsoever. Our system gives a great deal of deference to the trier of fact at the trial level. Nobody, save perhaps the actual participants in the case, is in a better position to determine exactly what happened in a given case. The jury hears all of the admissible evidence and at the end of the day they determine not only what happened in a civil trial but, once liability is conceded or established, how much the plaintiff is entitled to recover for their injuries. Once the jury renders a verdict, its findings will not be overturned absent a determination that they abused their discretion. The Louisiana Supreme Court has gone out of its way to stress just how much deference should be granted to jury verdicts on review. They noted that a jury finding regarding damages is entitled to “great deference on review” in Wainwright v. Fontenot, 774 So.2d 70, 74. The Louisiana Supreme Court further indicated that “an appellate court should rarely disturb an award on review” in Guillory v. Lee, 16 So.3d 1104.

In the case of Deligans v. Ace American Ins. Co., the defendant conceded the issue of liability. The trial in this case only concerned the amount of money to be awarded in damages. After the jury heard all of the evidence in that case, they awarded the plaintiff several dollar amounts for specific types of damages. The jury awarded Mrs. Deligans money for past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, past medical expenses, future medical expenses, past loss of enjoyment of life and future loss of enjoyment of life. The jury did not award Mrs. Deligans any money in the areas of past disability or future disability. Ms. Deligans complained on appeal about the inadequacy of the award she was granted by the jury.

The appellate court found that the jury in this case had in fact abused its discretion. After explaining the deference due to such a finding at great length, the appellate court actually raised the award that the jury awarded Ms. Deligans. When an appellate court makes such a finding, it can only raise the award to the “lowest amount which is reasonably within the court’s discretion.” The appellate court looked to jury awards in similar cases when making this determination. The appellate court then awarded Ms. Deligans the lowest amount it felt was within the purview of the jury to have given without abusing its discretion. Even when the jury verdict is overturned, it is still given great deference.

October 31, 2012

Monroe Medical Malpractice Case Explores Directed Verdicts, Expert Testimony

by Berniard Law Firm

On February 24, 2003, D H visited the North Monroe Medical Center to have a benign tumor removed from her breast. The procedure was performed by Doctor A, a general surgeon, and Doctor B, a radiologist. The procedure involved inserting a metal wire, guided by x-ray, into the breast and “hooking” the tumor. Once Doctor A removed the mass of tissue, Doctor B compared pre- and post-operation images and confirmed that the tumor had been taken out. The tissue was sent for pathological analysis, which revealed that it was not the intended tumor, but rather normal breast tissue. A mammogram several months later revealed that a section of the wire hook and the tumor remained in H’s breast. Doctor A, therefore, performed another procedure in which he successfully removed the wire fragment and the tumor.

H filed a medical review panel complaint against Doctor A and the North Monroe Medical Center. The panel found in favor of the defendants, and H filed a medical malpractice suit on January 19, 2007. She amended the complaint to include Doctor B on October 30, 2008. In February, 2011, following the completion of H’s case, the defendants moved for directed verdicts, which the trial court granted. H appealed the trial court’s granting of directed verdicts in favor of Doctor A and Doctor B. Under Louisiana law, a directed verdict should be granted when, after considering all the evidence, it is clear to the court that the “facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors could not have arrived at a contrary conclusion.” This, naturally, in the case of a defendant’s petition for a directed verdict, requires that all of the plaintiff’s evidence be properly before the court. Expert testimony is not absolutely required in order for the plaintiff to overcome the burden to show that the defendant was negligent. In fact, on appeal to the Second Circuit Court of Appeal, H argued that expert testimony was not necessary to establish malpractice, as the actions that led to her injury were “obviously careless acts” and, as such, negligence could be inferred. The court disagreed, offering that “although the procedure itself may be considered routine, considering the procedure as a whole, specifically the judgment calls required of Drs. A & B, it is clear that this is not a scenario from which lay persons could infer negligence.”

This conclusion led to the analysis of the trial court’s refusal to certify Dr. Roderick Boyd, H’s witness during the trial, as an expert in radiology. As a result of Dr. Boyd’s being certified in general surgery only, he was unable to comment on most of Doctor B’s involvement in H’s procedure during his testimony. The court’s review of the record of Dr. Boyd’s voir dire revealed that “Dr. Boyd had performed several hundred needle localization breast biopsies. He does regularly review radiographic images as a function of his occupation as a general surgeon and in connection with biopsies such as the one performed in this case.” Therefore, the court’s “not accept[ing] Dr. Boyd as an expert in this type of procedure to include a reading of the radiographic images was clear error. The court concluded, “We cannot speculate on Dr. Boyd’s opinion or its impact on the jury’s decision. Nonetheless, … we must reverse the trial court’s grant of both defendants’ motions for directed verdict, and remand for further proceedings.”