Articles Posted in Strict Liability

by

In August 2007, Dwight Phillips was dropping off his step-son, Joseph Shelvin, at school. The school’s principal, Louella Cook, noticed that Phillips’ vehicle was in the school’s bus-unloading area. After noticing Dwight’s vehicle, Phillips approached Dwight and informed him that he was unloading the child in the wrong area. She then directed him to the car drop-off area. According to Cook, Dwight then began screaming at Cook. During this screaming, Dwight told Cook that he would return and “get her.” Cook contacted the police because she feared for her safety as well as for the safety of the staff and visitors of the school.

When the police arrived, the investigating officer interviewed both Cook and Dwight. According to the officer, Dwight admitted that he threatened Cook and Dwight was subsequently arrested for disturbing the peace by threats. Sometime prior to this incident, a bus driver reported that during a bus stop, a man, who was talking loudly, got on the bus and refused to get off. Cook and her staff questioned the students who were on the bus during the incident including Joseph Shelvin, Dwight Phillips’ step-son. After speaking with the students, Cook and her staff learned that the man was Dwight Phillips. After Phillips’ arrest, Shelvin, Phillips and his wife Joy filed suit against the Lafayette Parish School Board and Dr. Louella Cook. On appeal to the fifteenth judicial district court, the court only examined the claims against the Board and Cook for Dwight Phillips’ defamation and Shelvin’s emotional distress.

To successfully assert a claim for intentional infliction of emotional distress (IIED), the person bringing such a claim must show an (1) intent to cause (2) severe emotional distress by (3) extreme and outrageous conduct. According to Louisiana courts, “[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Because tortious or illegal conduct does not rise to the level of extreme and outrageous, “[t]he distress suffered must be such that no reasonable person could be expected to endure it.” Essentially, one cannot be liable for IIED for “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” In this case, the Phillip’s and Shelvin failed to successfully assert a claim for IIED. There was no evidence that Cook’s conduct was extreme and outrageous or that she intended to cause Selvin severe emotional distress. In relation to the “drop-off” incident, Cook never spoke to Shelvin about it. When Shelvin and the other students were questioned about the incident where the man refused to get off the bus, Cook was never alone with any of the students. Moreover, none of the interviews lasted over ten minutes.

Continue reading

by

On the evening of August 2, 2005, Latiffany Dunn slowed her car as she approached the intersection of Pearl and Washington Streets in Homer, Louisiana. As she came to a stop, a vehicle driven by Latonya Harris pulled up beside Dunn’s vehicle. Shatara Harris, Latonya’s sister, was a passenger in Latonya’s vehicle. Shatara got out of the car and approached Latiffany’s vehicle. The two women argued, and Shatara took a swing at Latiffany. As Shatara walked back to Latonya’s vehicle, Latiffany drove off and then circled back. As it passed by, Latiffany’s car clipped the open passenger door of Latonya’s vehicle. Shatara, who was attempting to get into the car at the same time, was injured when the door slammed closed against her. Latiffany did not stop her car, but instead drove to the Claiborne Parish Sheriff’s Department where she filed a report about the incident. A sheriff’s deputy interviewed Latiffany, transported her to the Homer Police Station, and then arrested her on a charge of aggravated second degree battery. Latiffany later pled guilty to simple battery. Shatara filed suit against Latiffany and her auto insurance carrier, U.S. Agencies Casualty Insurance Company, Inc. for damages arising from her injuries. U.S. Agencies filed a motion for summary judgment on the grounds that Latiffany intentionally struck Latonya’s vehicle, which would have excluded coverage by the terms of the policy. The trial court granted the motion and dismissed U.S. Agencies from the suit; Shatara appealed.

Under Louisiana law, an insurer may limit the coverage it provides by the terms of its policy, but the insurer has the burden of proving that the facts and circumstances support the exclusion. Furthermore, “a summary judgment declaring a lack of coverage under an insurance policy is not appropriate unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts, under which coverage could be provided.” The policy provision that U.S. Agencies pointed to excluded coverage for bodily injury or property damage “caused by an intentional act” or “caused … while engaged in the commission of a crime.” U.S. Agencies argued that Latiffany committed a crime (as established by her guilty plea to the battery charge) and also that she intentionally struck Latonya’s vehicle to injure Shatara.

With respect to the crime exclusion, the Second Circuit noted that the policy defined “crime” as “any felony or any action to flee from, evade or avoid arrest or detection by the police or other law enforcement agency” (emphasis added). The court concluded that the crime exception was inapplicable because Latiffany’s guilty plea to simple battery–a misdemeanor offense–did not fit the policy’s definition. Furthermore, the court explained that Latiffany’s guilty plea was not determinative as to her intent to strike Shatara. While a guilty plea from a criminal matter is admissible in a civil case, it is not conclusive evidence. The court acknowledged that “summary judgment is appropriate only if there is no factual dispute as to intent,” which, after reviewing the trial record, was “not the case here.” The court reasoned, “we cannot say as a matter of fact that the record shows [Latiffany] intended to hit either Latonya’s vehicle or Shatara with her vehicle… Even though Latiffany pled guilty to simple battery, we find that the record shows that a genuine issue of material fact exists as to whether Latiffany’s actions constituted an intentional act.” Accordingly, the court reversed the trial court’s granting of summary judgment and remanded the matter for further proceedings.

Continue reading

by

In 1988, Louisiana enacted the Louisiana Products Liability Act (LPLA) which provides for strict liability causes of actions against manufacturers of alledgedly defective products. This case is important because the ruling provides a guideline in which lawyers can litigate their client’s cases and attempt to provide them the financial recovery they deserve.

Under the LPLA, set forth in La.R.S. 9:2800:53(A):

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristict of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticapated use of the product by the claimant or another person or entity.

Continue reading

by

As we have discussed previously on this blog, summary judgment is a procedural device for expediently resolving a case without a full trial where there is “no genuine issue of material fact.” Johnson v. Evan Hall Sugar Co-op, Inc., 836 So.2d 484, 486. (La. App. 1st Cir. 2002). It is well settled in Louisiana that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact” and that party requesting judgment is entitled to it as a matter of law. See La. Code Civ. P. Art. 966(B). A trial court’s analysis of whether summary judgment is proper can involve the review of a considerable volume of documents which may contain conflicting information. The First Circuit Court of Appeals recently ruled on a summary judgment motion in a medical malpractice case that turned on the trial court’s treatment of the defendant doctor’s deposition and subsequent affidavit.

On June 9, 2007, Percy Bethley, 80, was admitted to Baton Rouge General Medical Center Mid-City (“BRGMC”) with breathing difficulties. He had a five-year history of serious heart and lung disease. Bethley underwent various treatments in the hospital and received a pulmonary consultation by Dr. Reza Sheybani. After examining Bethley, Dr. Sheybani decided to replace the Bethley’s tracheostomy tube. A respiratory therapist, Cecilia Eason, was brought in to perform the replacement. Eason had great difficulty with the procedure and, sadly, as a result of a series of further complications, Bethley expired.

Following Bethley’s death, his widow and children (the plaintiffs) filed a medical malpractice complaint with the Louisiana Patients’ Compensation Fund. The panel found that the evidence supported the possibility that Dr. Sheybani failed to meet the applicable standard of care and that his conduct had been a factor in Bethley’s death. The plaintiffs then filed suit against BRGMC and Dr. Sheybani, alleging that Dr. Sheybani and the hospital employees who treated Bethley negligently contributed to his death. BRGMC answered and filed a motion for summary judgment. Dr. Sheybani responded with a pleading that opposed summary judgment and which included a personal affidavit that contained his own expert medical testimony. This testimony was offered to prove that genuine issues of material fact existed in the case: Dr. Sheybani alleged that Eason, a BRGMC employee, had been negligent in her treatment of Bethley. BRGMC then filed a motion to strike the affidavit of Dr. Sheybani, which the trial court granted after a hearing. The trial court also granted BRGMC’s motion for summary judgment, and dismissed with prejudice the plaintiffs’ claims against BRGMC. Dr. Sheybani filed a motion for devolutive appeal.

Continue reading

by

A Union Carbide Corporation plant facility in Taft, Louisiana, leaked a toxic chemical compound for at least seventeen hours on September 10th and 11th in 1998. Rainwater accumulation from Tropical Storm Frances caused partial collapse of the floating roof on a large tank storing liquid naphtha. Consequently, a tank seal broke allowing escape of liquid naphtha which volatilized and exposed workers and surrounding residential areas to naphtha fumes including the towns of Montz and Killona. An estimated 4.6 million pounds of naphtha vaporized before application of a chemical foam to the tank roof effectively stopped the volatilization hazard.

In the case of Howard v. Union Carbide Corporation, the Supreme Court of Louisiana reduced to negligible amounts the already decided damages awarded to plaintiffs exposed to the naphtha fumes. Specifically, original damages awarded were $3,500, $2,500, and $1,500. However, the Supreme Court reduced these damages to amounts of $500, $250, 150, and $100 based on proximity to the leak with higher awards to those within the plant and lower awards to those in the surrounding residential areas.

Exhibiting a controversial impression of the dangerous chemical involved, as well as defining exposure injuries, the Court concluded “simply no reasonable relationship” exists between the injuries and the original damages awarded. Assuming all fumes are equal regardless of the vastly different compounds which any given chemical leak may constitute, the Court cited other negligible awards in other cases despite the fact that the other cases involved unrelated chemicals.

Continue reading

by

As we have examined in several prior blog posts, expert testimony plays a very important part in the resolution of many tort suits, especially those involving medical malpractice claims. Because the details of medical procedures can add considerable complexity to a case, expert witnesses are commonly relied on by both plaintiffs and defendants to help the jury better understand the facts. The input of experts is essential to the jury’s analysis of whether a doctor’s conduct which caused the plaintiff’s harm met the applicable standard of care; the recent case of Verdin v. Hospital Service District No. 1 of the Parish of Terrebonne, No. 2010 CA 0456 (La. Ct. App. 1st Cir. 2010), offers a look at the considerations a court may give when qualifying a witness as an expert.

On February 27, 2002, Don Verdin underwent back surgery at the Terrebonne General Medical Center to repair a herniated disc. Dr. Henry Haydel, an orthopedic surgeon, performed the procedure. During the surgery, Dr. Haydel’s tool punctured an artery, which required emergency surgery to repair. It was also discovered that Verdin’s bowel had been punctured, which necessitated yet another surgery to correct. Following these procedures, Verdin developed a severe infection that required an extended hospital stay, during which he experienced a number of other complications prior to his release from the hospital nearly a month later. Verdin filed a medical malpractice complaint with the Louisiana Patient’s Compensation Fund against Dr. Haydel, alleging that Dr. Haydel breached the standard of care in performing the back surgery and failed to properly treat the injuries that occurred during the surgery. Verdin also included similar claims against the surgeons who repaired the artery and bowel perforations. The Medical Review Panel found that none of the doctors who treated Verdin failed to meet the applicable standard of care as charged in the complaint. Nevertheless, Verdin filed a medical malpractice suit against Dr. Haydel in June of 2005, alleging the same claims as were denied by the Review Panel. Following a four-day trial, during which numerous expert witnesses testified, the jury returned a verdict in favor of Dr. Haydel, finding that he did not breach the standard of care in his treatment of Verdin. Verdin then filed an appeal in which he attacked the jury verdict as manifestly erroneous.

Verdin’s primary enumeration of error centered on the expert testimony of Dr. Chad Millet, who was called as a witness by Dr. Haydel during the trial. Verdin objected to Dr. Millet’s qualifications, arguing that he did not have the necessary knowledge to qualify as an expert witness because he had not performed spine surgery in the six years prior to Verdin’s procedure in 2002. Verdin further asserted that because Dr. Millet had not taken any continuing medical education courses in the area of spine surgery during that time, he was not qualified to testify regarding the surgical procedure employed by Dr. Haydel. In reviewing the trial court’s decision to nevertheless accept Dr. Millet as an expert in the field of orthopedic surgery, the court reviewed La. R.S. 9:2794(D)(l)(b) and (c). These provisions require that in order to qualify as an expert witness, a physician must have knowledge of accepted standards of medical care for the treatment involved in the claim, and that the physician must be qualified on the basis of training to offer an expert opinion regarding those accepted standards of medical care. The court also reaffirmed the long-standing view “trial courts have great discretion in determining the qualifications of experts and the effect and weight to be given to expert testimony. In the absence of a clear abuse of this discretion, [appellate courts] will not disturb a trial court’s ruling on the qualification of a witness.” See Bradbury v. Thomas, 757 So.2d 666, 673 (La. App. 1st Cir. 1999). “It is well settled,” noted the court, “that the law does not require an expert to be actively practicing in the particular specialty about which he or she will testify.” Instead, “the court need only be satisfied that the witness is qualified to give testimony regarding the applicable standard of care. Bradbury, 757 So.2d at 674.

Continue reading

by

In a prior post, we explored the elements that a plaintiff must prove in order to recover against the owner of a business due to an unsafe condition on the property. There, the plaintiff, Lisa Beckham, tripped and fell over some loose asphalt in an unpaved parking lot of a children’s play facility in West Monroe. The case hinged on the analysis of whether the asphalt posed an “unreasonable risk of harm” to the customers who visited the property. The Second Circuit determined that under the facts of the case, the question was best left to a jury and was not appropriate for summary judgment. In the recent case of Bias v. Scottsdale Insurance Co. the Third Circuit also examined the requirement for the plaintiff to prove that there was a defect in the property that presented an unreasonable risk of harm, but reached a different result. Ray Bias injured his knees when he fell in the parking lot of David & Lori’s Kitchen Restaurant in Mamou. Bias’s fall was caused by several pieces of loose pea gravel on the concrete surface just outside the restaurant’s takeout window. Bias didn’t notice the gravel as he approached the window because he was looking up at the menu board posted above the window. In a complaint for damages against the establishment, Bias alleged that the gravel presented an unreasonably dangerous condition for restaurant patrons. The restaurant and its insurer, Scottsdale Insurance Company, filed a motion for summary judgment. At the hearing, Bias presented no expert testimony or other evidence to support his assertion that the gravel was unreasonably dangerous. Accordingly, the trial court granted the defendants’ motion and dismissed Bias’s action. Bias appealed, citing as error that there existed issues of fact as to the danger posed by the gravel.

The Third Circuit declared that “[t]he record contains no evidence to support [Bias’s] opinion that the presence of ten to twenty pieces of pea-sized gravel on [the restaurant’s] cement pad created an unreasonably dangerous condition.” The court further noted that Bias admitted he was “not exercising ordinary care” when he walked into the cement area while looking up at the menu board. After reviewing the state’s position that Louisiana property owners are not “insurers of the safety of visitors,” but instead simply “owe a duty to keep their premises in a safe condition for use,” the court concluded that the trial court’s dismissing Bias’s complaint at summary judgment was appropriate. Bias “did not present any evidence to support his allegation … [and] it was incumbent on [him] to do so in order to survive summary judgment.”

By contrast, the defective condition in the Beckham case required a more fact-intensive analysis. The plaintiff put forward evidence that painted a vivid picture of the overflow parking lot where she fell: the lot was unpaved and consisted of dirt, grass, rock, gravel, and chunks of crushed asphalt. Also, there was no evidence that she was not exercising ordinary care when she fell. Accordingly, the court concluded that based on the facts of the case, the determination of the lot’s level of dangerousness should left to a jury.

Continue reading

by

The parties to a legal dispute, such as the payment of damages resulting from a car accident, can reach an agreement between themselves to resolve the matter and avoid litigation. This agreement, under which the parties “give and take” to arrive at a solution that is satisfactory to both, is called a compromise. Under Louisiana law, a compromise is considered a contract which must be made in writing, but there is no specific requirement as to the form. What is important is that a compromise resolves only those differences that the parties clearly intend to settle, which under general contract law requires a “meeting of the minds.”

Louisiana courts have recognized that a check can serve as a compromise if it recites that it is in full payment for all claims and the check is endorsed and deposited by the payee. But as the parties in the case American Century Casualty Company v. Sale, discovered, the courts will scrutinize a compromise based entirely on the endorsement and deposit of a check to ensure both parties’ objectives were in alignment.

On August 9, 2008, a car accident occurred between Dr. Charles F. Sale and Michelle Barett. Barrett, who was at fault, was driving a vehicle owned by her parents and insured by American Century Casualty Company (ACCC). A short time thereafter, an ACCC representative contacted Sale and discussed settlement. ACCC then mailed the following to Sale: a letter describing the steps that Sale would be required to take to resolve the claim; a settlement and release form; and a settlement check in the amount of $1,820. The enclosed letter directed Sale to sign the release and return it to ACCC, at which point ACCC would issue the settlement check. (Although the letter indicated that a settlement check would follow a “properly executed release,” ACCC erroneously mailed all three documents in the same envelope at the same time to Sale.) The front of the settlement check included the following text: “CHARLES SALE, ONLY: IN F/F SETTLMT/RELEASE OF ACCC/… BARRETT FROM ANY/ALL CLMS/LNS ON D/L 8/9/08, CLM 10995-9.” Sale, finding the amount of the settlement check insufficient, put the documents aside. Later, Sale’s wife discovered the check and deposited it without his knowledge. When Sale filed suit against Barrett and ACCC in August of 2009, ACCC filed a motion for summary judgment contending that Sale had previously compromised and released his claims against the company and Barrett by endorsing and depositing the settlement check issued to him. The trial judge granted summary judgment in ACCC’s favor and found that Sale had released all future personal injury claims. Sale appealed.

Continue reading

by

In injury cases, general damages aim to compensate the victim for mental or physical pain and suffering, inconvenience, loss of quality of life, or other “intangibles.” Because these damages cannot easily be quantified in monetary terms, the jury (or judge in a bench trial) is tasked with assessing and awarding them. Louisiana courts have consistently held that “in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion.” Furthermore, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.”

Given this deferential standard, it is relatively rare for a jury’s award of damages to be modified on appeal. Nevertheless, the case of Case v. Shelter Insurance Company, No. 10-302 (La. App. 3d Cir. 2010) offers an example. On May 22, 2006, Patricia Case was driving her car on Oday Road in Loreauville. She came upon a tractor being driven slowly by Barry Frederick, an employee of Burt Oubre Farms. Just as Case pulled into the oncoming lane in an effort to pass the tractor, Frederick began to make a left-hand turn across her path without signaling. The vehicles collided approximately two feet across the center line of Oday Road. Following the accident, Case experienced severe back pain that ultimately required her to undergo a lumbar microdiskectomy and laminectomy in December of 2007. Case filed a lawsuit against Frederick, Oubre Farms, and the farm’s insurance carrier, Shelter Insurance Company. At trial, the jury found Case 25 percent and Frederick 75 percent comparatively negligent and awarded Case $49,999.98 in general damages. Case appealed this judgment, arguing that the jury improperly found her negligent and that the general damages award was insufficient.

On appeal, the Third Circuit quickly dispensed with Case’s argument concerning liability, holding that the jury did not commit “manifest error” in reaching its conclusion. Next, turning to the issue of the damages award, the court applied the abuse of discretion standard. The court examined the extent and severity of Case’s injuries and reviewed the various cases relied upon by Case to substantiate that the jury’s award was “abusively low.” Despite the good recovery Case had made by the time of the trial, the court nevertheless found that “when considering the record as a whole, we are required to find the award of $49,999.98 in general damages below the range of the jury’s discretion.” The court referred to its prior decision in Este v. State Farm Insurance Company, 676 So.2d 850 (La. App. 3d Cir. 1996), where it held that “an award of $75,000 was the lowest amount within the court’s discretion for the aggravation of a pre-existing, asymptomatic, spondylosis and bulging disk that did not warrant surgery.” Thus, the court reasoned, “[i]f a simple bulging disk and aggravation of an asymptomatic spondylosis can be awarded a minimum of $75,000 in general damages, an active herniation of a disk with surgical intervention warrants a general damage award of $100,000.00; any amount below that would be considered an abuse of the jury’s vast discretion.” Accordingly, the court amended the jury’s damages award to $100,000.

Continue reading

by

Louisiana law requires owners of businesses to use reasonable care to ensure that their parking lots, sidewalks, entryways, and other areas are safe for the public. If a customer is injured by an unsafe or defective condition, he or she must prove the following four elements in order to recover in tort: 1) the location was within the defendant’s control, 2) there was a defect which presented an unreasonable risk of harm, 3) this defective condition caused the customer’s injury, and 4) the defendant knew or should have known of the defect.

Whether the condition of the premises posed an unreasonable risk is often the most disputed matter in a slip-and-fall case. Over the years, the Louisiana courts have determined that there is no “fixed rule” for determining whether a defect presents an unreasonable risk of harm. The trier of fact must “balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair.” The courts have generally concluded that the analysis of whether a defect presents an unreasonable risk of harm encompasses “an abundance of factual findings, which differ greatly from case to case,” such that the analysis “cannot be applied mechanically.” As the parties discovered in Beckham v. The Jungle Gym, L.L.C., No. 45,325-CA (La. Ct. App. 2d Cir. 2010.), this means that, practically speaking, slip-and-fall cases are not ideally suited for resolution by summary judgment.

On October 7, 2006, Lisa Beckham took her two children to play at the Jungle Gym indoor playground in West Monroe. Upon arriving, Beckham parked her car in the “overflow” parking lot because the main parking area was full. The overflow lot was unpaved; its surface consisted of dirt, grass, rock, gravel, and chunks of crushed asphalt. When Beckham later returned to her car, she tripped on one or more large chunks of asphalt, fell to the ground, and broke her right ankle. Beckham filed suit against Jungle Gym alleging that the parking lot where she fell was unreasonably dangerous. Jungle Gym filed a motion for summary judgment in which it denied custodial responsibility and asserted that the parking lot did not pose an unreasonable risk of harm. The trial court granted Jungle Gym’s motion and dismissed Beckham’s complaint.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Berniard Law Firm
JUSTIA Law Firm Blog Design