Strict Liability

December 9, 2010

Time is of the Essence: Losing a Claim As a Result of Prescription

Time is of the essence when filing a claim; a person can essentially lose the case before it even begins if the claim is not filed “in time”. But the question is when is a claim “on time?” In the recent case holding of Casborn v. Curran and Northshore Regional Medical Center, the court explained that under Louisiana Revised Statutes 9:5628, “no action for damages for injury or death arising out of patient care shall be brought unless filed within one year from the date of discovery of the alleged act.” What has become an issue for many to understand is from what point does the court consider a person to have “discovered” the injury or wrongful act? Exploring the cases’ analysis sheds some light on the issue and hopefully provides an answer to this dilemma.

Prescription is a legal term that is a powerful tool that many litigants utilize to dismiss a case. Specifically, prescription is defined as “the loss or forfeiture of a right, by the proprietor’s neglecting to exercise or prosecute it during the whole period, which the law hath declared to be sufficient to infer the loss of it.” The prescription clock starts ticking as soon as the person who feels they have been damaged discovers the alleged injury; if they wait too long, the time limit is up and the clock stops ticking, resulting in the loss of their claim.

In the case of Cosborn, prescription ultimately ended the case before it even began, causing the plaintiffs to be completely out of luck in obtaining any relief. Dates are extremely important when a court explores the issue of prescription, which is why the dates of the plaintiff’s alleged injury, eventual discovery, and final act of filing is vital in the analysis. The plaintiff, Mrs. Casborn, went to the Northshore Regional Medical Center on May 5, 2007, suffering from severe tongue swelling and difficulty breathing. The examining staff physician, Dr. Curran, administered the medication Benadryl —however, Mrs. Casborn continued to suffer and the symptoms actually began to grow worse. Eventually, she had to be taken into surgery and had a mechanical ventilator inserted, where it remained until May 18, 2007. In total, Mrs. Cosborn stayed in the hospital for almost an entire month, suffering from other complications including pneumonia, anemia, and acute renal problems.

December 7, 2010

Assessing Responsibility in Tragic Accident on Highway that Kills Two Passengers

by Berniard Law Firm

According to state police, and reports in LaPlace’s L’Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

December 5, 2010

Sexual Assault Case Illustrates Exceptions to Lawsuits and Need for Qualified Attorney

by Berniard Law Firm

Falling victim to a sexual assault is a nightmare that too many people in the Gulf Coast, and across America, are forced to fear. While most people think of such an incident in the realm of criminal charges, there are very real civil elements to such an event that are important. When a variety of individuals, or in the rare case businesses, are involved, civil liability exists that allows the victim to receive compensation for the various damages they suffered. However, hiring the proper attorney can be very important in such complex cases.

In the case of Piligra v. America’s Best Value Inn, Susana Piligra attended a nightclub located inside of the America’s Best Value Inn. There, Ms. Piligra consumed an excessive amount of alcohol. She eventually lost consciousness and was escorted by a nightclub employee to a hotel room. On the way to the hotel room, an unknown male offered to assist the nightclub employee and Ms. Piligra to the hotel room. Unfortunately, the hotel employee left Ms. Piligra in the care of the unknown male and, when Ms. Piligra’s friend went to check on her, she found the hotel room locked and the curtains closed. Her friend opened the door but the security chain was latched. When the friend moved the curtain, she did, however, see an unknown male climbing off of Ms. Piligra with his pants down. After Ms. Piligra was transported to a local hospital, it was determined that she was allegedly raped by the unknown male while she was unconscious.

In response to this incident, Ms. Piligra filed suit alleging that the owner of America’s Best Value Inn, Dhan Laxmi and their insurance company Evanston. In her suit she claimed that both parties negligently took her to a hotel room without her consent, failed to attend to her responsibly as required by an innkeeper or as one who assumed a duty of care and that she was left alone with an unknown male subjecting her to rape and other injuries. Upholding the lower court’s decision, the Court of Appeals refused to hold the insurance company, Evanston, responsible for any of Ms. Piligra’s injuries. Interpreting the insurance policy as it would any other contract, the court held that the policy exclusions found in the policy were unambiguous and prevented Ms. Piligra from recovering from the insurance company.

December 3, 2010

Part 2: Case of Barge Accident Reveals Strategy to Prevent Plaintiff’s from Winning Case

by Berniard Law Firm

Resuming where we last left off in this important case…

The court then turned to the deposition of Rigoberto Garcia, an employee of Maxum. Garcia had testified that while he was at work the day before the accident, all safety barricades were set up. He said that Maxum employees never removed the safety barricades when they worked around or passed through the holes. Instead, they would climb over or through the cables. Garcia finally stated that he left work every day at 5 p.m. The depositions of two other Maxum employees supported Garcia’s testimony. The combined testimony of these Maxum employees tended to show that the removal of the cables occurred when Maxum workers were not on site.

Finally, the court examined the testimony of Glenn Russo, an employee of Corrosion. Russo testified that his foreman, also an employee of Corrosion, had confirmed he’d been the one to place the plastic sheeting over the manhole. This admission effectively eliminated Maxum as the culprit behind the plastic sheeting that obscured the hole from Cotone’s view.

December 2, 2010

Part 1: Louisiana Barge Case Showcases Divide and Conquer Strategy When Suing Multiple Defendants

by Berniard Law Firm

The Third Circuit Court of Appeals for Louisiana released their decision in Cotone v. Corrosion Control Systems, Inc. The case highlights the importance of the plaintiff’s “divide and conquer” strategy when litigating against multiple defendants. Additionally, it illuminates the challenges defendants and plaintiffs may both face in lawsuits involving injuries occuring in settings controlled and occupied by multiple parties.

In 2006, Timothy Cotone was employed by Superior Derrick Services as a shipyard supervisor on a Lousisiana river barge. Superior was tasked with converting the barge into a drilling rig. In order to accelerate the conversion, Superior subcontracted temporary workers supplied by Maxum Industries to perform welding and fitting services. Meanwhile, Corrosion Control Systems was hired separately by the barge owner to provide sandblasting and painting services. Superior and Corrosion were separate companies otherwise unaffiliated with one another.

On November 3, 2006, Cotone stepped into an open hole on the barge and suffered injuries. Typically, the hole was barricaded by safety cables. However, when Cotone stepped into the hole, no such safety cables were in place. Furthermore, plastic had been placed over the whole, preventing Cotone from noticing the opening. Naturally, Cotone concluded that one of the other barge workers must have negligently removed the safety cables and placed the plastic over the hole. Consequently, he sued to recover for his injuries.

November 30, 2010

Pineville Car Wreck Results in Showdown Over Classic Car Repair Costs

by Berniard Law Firm

When property is damaged through the fault of another, the law’s primary objective is to restore the property as nearly as possible to the state it was in before it was damaged. In Louisiana, it is well settled that the measure of the damage to property is the cost of restoring the property to its former condition. Thus, the courts historically have looked to the cost of restoration to determine the proper measure of damages. Rogers v. Commercial Union Ins. Co., 796 So.2d 862 (La. App. 3d Cir. 2001). This approach is particularly common with auto accidents, including the one that led to the case of Armstrong v. Safeway Insurance Company, No. 10-183 (La. App. 3d Cir. 2010).

On April 12, 2008, Richard Armstrong, an antique automobile restorer, was driving a 1982 Corvette in Pineville. The car, which to that point had never been in an accident and was in “mint” condition, was struck by a vehicle driven by Darrell Frost. Armstrong suffered minor injuries as a result of the accident, and the Corvette sustained damage to the front end. Armstrong and Frost’s insurance carrier, Safeway, settled Armstrong’s personal injury claims after Frost admitted fault for the incident. The parties were unable to reach a settlement over Armstrong’s property damage claims, however, and so Armstrong filed suit. At trial, Armstrong explained that the repairs to the Corvette totaled $7,007. This was in part due to the fact that Armstrong insisted upon complete replacement of several body parts due to the difficulty in making undetectable repairs to fiberglass. Armstrong asserted that the Corvette was a “well-maintained classic,” the value of which would have been negatively affected by any body imperfections. Safeway, who had offered Armstrong $3,503 for the repairs based on the opinion of its appraiser, argued that it was unreasonable for Armstrong to expect replacement parts when less costly repairs were possible. The trial judge disagreed with Safeway and awarded Armstrong $7,007 in property damages.

Safeway appealed. The Third Circuit noted that the parties’ repair experts at trial both agreed that Armstrong’s vehicle could have been repaired in several different ways and that Armstrong was reasonable in being concerned about the way that his vehicle was going to be repaired. The court concluded that “[b]ecause the trial court was presented with two permissible views of the evidence, its choice between them cannot be manifestly erroneous or clearly wrong.” Furthermore, Armstrong “carried his burden” of proving the amount he paid to restore the car to its pre-accident condition. The court commented, “Safeway simply argued that Armstrong’s vehicle could have been repaired in the manner recommended by its appraiser; they did not argue that any of the costs incurred by Armstrong to have his vehicle repaired in the manner that he chose were otherwise unreasonable.” Accordingly, the court found that the trial judge did not err in awarding Armstrong the full amount of his proven property damages, and affirmed the decision.

November 28, 2010

State Court of Appeals Explains Plaintiff’s Standard in Minden, Louisiana, Trip and Fall Case.

by Berniard Law Firm

In June, The Louisiana Court of Appeals published their opinion for Watts V. Scottsdale Ins. Co., a case involving a trip-and-fall that occurred at a restaurant in Minden, Louisiana. In the decision, the court articulated the plaintiff’s standard for prevailing in trip-and-fall cases that occur within the state.

The facts of the case are simple enough. In this case, 82 year old plaintiff Mildred Watts tripped over a metal strip located in the path between a restaurant parking lot and front entrance. Ms. Watts contended the metal strip, due to its dark coloration, was shaded by the shrubbery around it and therefore she couldn’t see it before her resulting fall. As a consequence of her trip-and-fall, Ms. Watts sustained serious injuries to her mouth and teeth. Accordingly, Watts sued the restaurant and its liability insurance carrier on a theory of negligence.

Before ruling on the matter, the court explained that trip-and-fall negligence cases brought against merchants in Louisiana are governed by La. R.S. 9:2800.6. This statute requires a plaintiff to prove, among other elements of her claim, that (1) a condition present on the defendant’s property presented an unreasonable risk of harm and that the harm was reasonably foreseeable; (2) the defendant created the condition, or had actual or constructive notice of the condition prior to the plaintiff’s trip-and-fall; and (3) the defendant failed to excercise reasonable care. In order to win her case, the court explained that Ms. Watts must prove all three of the La. R.S. 9:3800.6 elements by a preponderance of evidence.

November 26, 2010

Series of Collisions Between Trains and Cars in West Monroe

by Berniard Law Firm

West Monroe, a city of some fifteen thousand people, has seen an increase in the number of collisions between trains and cars over the last two years. One person has been killed and four injured in such accidents, three of which occurred in 2010 and two of which occurred at the Plum Street railroad crossing.

The City of West Monroe, the Department of Transportation and Development (DODT), and the Kansas City Southern Railroad Company are responsible for maintaining these railroad crossings. As a result of the increase in accidents, they have collectively decided to close two railroad crossings, at South Second and Plum Street. Although they initially planned to close the Trenton Street Underpass, the city decided to keep it open due to the inconvenience to traffic.

In addition to closing two intersections, the city and railroad company plan to upgrade all other railroad crossings within city limits. These upgrades will consist of adding new warning devices and cutting back any vegetation that might obscure drivers’ views. They might also involve lowering the speed of passing trains and increasing the trains’ use of their horns.

November 24, 2010

Louisiana Products Liability Act Requires Swift Action by Plaintiffs

by Berniard Law Firm

In Louisiana, a tort suit must be filed within a certain period of time after the incident occurs. This is called the “prescriptive period,” and serves several purposes. It puts the defendant on notice within a reasonable period of time that a plaintiff has a possible claim against him and thereby allows him to preserve evidence that may be required for trial. It also supports the state’s efforts to resolve legal disputes in a timely manner. The prescriptive period for a specific tort is set by statute. For product liability cases, the Louisiana Products Liability Act “establishes the exclusive theories of liability for manufacturers for damage caused by their products” and creates a one-year prescriptive period for claims that “commences to run from the day injury or damage is sustained.” See LA. CIV. CODE Art. 3492.

Filing a lawsuit even one day past the expiration of the prescriptive period can prove fatal to a plaintiff’s effort. For example, Carter v. Matrixx Initiatives, Inc., No. 09-31134 (5th Cir. 2010) involved a plaintiff who filed her lawsuit just six days too late and was barred from recovering. On February 23, 2007, Ruth Carter of Livingston Parish used Zicam No Drip Liquid Nasal Gel Cold Remedy and immediately experienced excruciating burning pain in her nose. By the next day, she lost her sense of smell and sense of taste. The pain was so severe that Carter was unable to work and told her employer that she believed the Zicam had caused the burn when she called in sick. Carter sought medical treatment from her primary care physician who did not confirm the cause of her injury but referred her to a radiography center for further examination. During the imaging appointment on May 7, 2007, Carter told the technician about her suspicions about the Zicam. The technician responded that she had received an e-mail communication warning “to be on the lookout for [the same kind of] problem with Zicam.” Carter filed suit against Matrixx Initiatives, Inc, the maker of Zicam, on February 29, 2008 in Louisiana state court. The case was removed to federal court where the Louisiana Products Liability Act was to be applied by the court. Matrixx then filed a motion for summary judgment seeking a dismissal, arguing that because Carter’s suit was filed six days after the expiration of Louisiana’s one-year prescriptive period for product liability suits, Carter’s action should be barred. The district court granted Matrixx’s motion on this ground, and Carter appealed.

In her appeal, Carter argued that the doctrine of contra non valentem should apply. Under this doctrine, the running of the prescriptive period is suspended “until the facts necessary to state a cause of action are known or reasonably knowable to the plaintiff.” The idea is that the plaintiff is not penalized for failing to act until she has “actual or constructive notice of the [tort], the resulting injury, and the causal connection between the two or that the plaintiff’s lack of such knowledge was willful, negligent or unreasonable.” See Sharkey v. Sterling Drug, Inc., 600 So. 2d 7013 (La. App. 1st Cir. 1992). In effect, Carter’s position was that not until her conversation with the radiography technician on May 7, 2007 did she become aware that the Zicam caused her injury and, accordingly, the prescriptive period should not have begun running until that date. The Fifth Circuit rejected this argument. The court found that it was “apparent that Carter first sustained the injury that allegedly resulted from her use of Zicam on February 23, 2007 and that she had actual knowledge of pain and sensory loss on that same day.” The court noted that “from the very outset, Carter suspected and attributed her injury to Zicam, and she never wavered in that belief.” In the court’s view, Carter “indisputably” had both the belief that Zicam caused her injury and a reasonable basis for seeking to hold its manufacturer responsible “on February 24 at the latest.” Therefore, the prescriptive period “began running on February 23 (February 24 at the latest),” and so Carter’s filing of her lawsuit “was at least five days late.” The court affirmed the lower court’s dismissal of Carter’s claims.

November 22, 2010

Statute of Limitation Can Void Ability to Recover for Legitimate Cases

by Berniard Law Firm

The legal concept of a statute of limitations is a fixed period of time within which a lawsuit must be commenced. Under Louisiana law, the statute of limitations for a personal injury action is one year. Thus, the injured victim must commence a lawsuit within one year from the date of injury. Once the one year period runs out, the opposing party could raises it as a defense to dismiss the case unless a legal exception applies.

Typically in a personal injury case involving joint tortfeasors, filing suit against one alleged tortfeasor is a way to interrupt the statute of limitation against all other joint tortfeasors. However, per the ruling in Galling, “where no liability is found on the part

of a timely sued alleged tortfeasor, then prescription is not interrupted as to untimely sued torfeasors, as no joint or solidary obligation exists.” Moreover, according