Articles Posted in Strict Liability

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Common in Louisiana middle schools is a disciplinary program that requires students who engage in acts of moderately serious misbehavior to stay after school in “detention.” To reinforce the punitive nature of the program, many schools require a student who stays late for detention to find his or her own means of transportation home. Presumably, this requires the involvement of a parent or other responsible adult who would then be made aware of the student’s misbehavior, and who could help the student correct the problem. The scope of a school’s responsibility for a student’s safety after she left school grounds following detention arose in the case of S.J. v. Lafayette Parish School Board, No. 2009-C-2195 (La. 2010).

On November 4, 2004, a twelve-year-old, female sixth-grader, “C.C.,” stayed after school at Lafayette Middle School to serve detention. When detention concluded at around 4:00 PM, C.C. left the school with another student and walked to a nearby fast food restaurant. The two girls parted ways at the restaurant and as C.C. made her way home, she was attacked and raped by an unknown male assailant. C.C. and her mother filed a lawsuit suit against the school board, arguing that the board, through its employees at Lafayette Middle School, had failed to exercise reasonable supervision over C.C., which resulted in her being assaulted. The trial court granted the board’s motion for summary judgment on the basis that the board “had no duty to safeguard a child’s well-being after the child leaves the school property,” and dismissed the action. The Louisiana Court of Appeal affirmed this decision, but it was then reversed by the Louisiana Supreme Court and remanded for trial. After a bench trial, the court found no negligence on the part of the school board and dismissed the plaintiffs’ action. In particular, the court noted that the school discharged its duty to C.C. and the other students who stayed for detention by ensuring that none of them was left behind at the school after detention concluded without a way home. On appeal, a three-judge majority of the five-judge panel of the Court of Appeal reversed the trial court. The panel found liability on the school board’s part based largely on a Louisiana statute that requires schools to provide transportation to students who live more than a mile from campus. La. Rev. Stat. 17:158(A)(1). The panel concluded the school breached its duty to C.C. by disallowing her from riding home on the after-hours bus, which was reserved for students who stayed after school for non-disciplinary reasons, and further by denying her access to a school telephone to call her mother for a ride.

On appeal, the Louisiana Supreme Court reviewed the elements a plaintiff must prove in a negligence action (duty, breach, causation, and actual damages), and noted that “whether a duty is owed is a question of law; whether a defendant has breached a duty owed is a question of fact.” The court began its analysis by observing that “it is well-settled that the duty imposed on a school board with regard to children in its care is one of ‘reasonable supervision.’” La. Civ. Code Arts. 2315; 2320. With respect to the question of whether this duty is expanded by the statute requiring school boards to provide free transportation for students to and from campus, the court answered that it does not. Doing so would “make a school board responsible for any and all injuries sustained by ‘any student,’ regardless of time, distance, and intervening factors, when those injuries would not have been suffered if the student had just been provided a free ride home.”

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Louisiana residents are becoming increasingly concerned about the drywall in their homes, which might be leaking toxins and other contaminants into the bedrooms and throughout the house depending on the manufacturer. Drywall consists of panels made of gypsum plaster pressed between two thick sheets of paper. The panels are used to make interior walls and ceilings. This is frightening for people who live in contaminated homes because of the proximity to possible toxins and poisons: literally they are just a few inches away from deadly poisons. This harmful occurence can lead to a variety of health defects from the negligence of people involved in using these toxins in drywall.

Many Louisiana residents have filed complaints in court about the drywall over the past few years. These lawsuits were pressed by those looking to recover the money it would cost to replace their drywall with a safer and healthier version. Since this process involves major construction, the costs are high and these people rightfully felt they should not have to pay for unknowingly being exposed to contaminants by the manufacturer.

Because of the dangers involved, and the damage caused to fixtures and elements of the home, many are wondering how they may find out if they are living in a contaminated home. Those who suspect they have the drywall in their homes should be on the lookout for health symptoms amongst their family that include runny nose, difficulty breathing, and headaches. If you or any of your family members are exhibiting these symptoms, be sure to contact an experienced attorney today. It is imperative that you act now while the courts are dealing with other cases like yours.

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On October 18, 2007, Kalencia Young and her passenger, Ashley Newsome, both pregnant, were driving on DeSiard Street toward Renwick Street in Monroe. At the same time, Gerald Adams was driving toward the intersection, which was controlled by a traffic light, on Renwick Street. The two vehicles collided when Adams’s pickup truck struck the passenger side of Young’s car.

Officer Tobyn Berry of the Monroe Police Department responded to the scene. He questioned both drivers and inspected the traffic light to determine that it was working normally. Berry also questioned two witnesses to the accident. One of the witnesses claimed that he saw Adams talking on his cell phone at the time of the crash and alleged that the traffic light was red for Adams as he approached the interestion. Officer Berry issued Adams a citation for failing to observe the traffic signal. Both Young and Newsome were taken to the St. Francis Hospital by ambulance and were released a short time later.

Young and Newsome sued Adams for the injuries they sustained in the crash. At the trial, Officer Berry’s deposition and accident report were entered into evidence. Both Young and Newsome testified, agreeing on few details except that they had a green light at the intersection. In response, Adams testified that he had the green light as he approached the intersection, and denied talking on his cell phone at the time of the accident. The trial court rendered judgment for Adams, finding his testimony to be “more credible than the entirety of the plaintiffs’ case.” Young and Newsome filed a motion for a new trial so they could subpoena the two witnesses from the scene. The witnesses failed to appear during the second trial, and the court once again rendered judgment in Adams’s favor.

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Ericka Lynn Carter brought a lawsuit against several parties after she was in a car accident in January, 2008: B&B Wholesale, Inc., Praetorian Speciality Insurance Company, Billy Dwayne Brumley, Ancul D. Bland, and the Louisiana Department of Transportation. She alleged that each party was liable for damages. Defendant Brumley moved for summary judgment and argued that he could not be held personally liable since his actions were taken only in his corporate capacity as president of B&B Wholesale. The trial court agreed and dismissed Brumley as a defendant and Ms. Carter appealed.

In a decision last month the Louisiana Court of Appeals agreed with the trial court and affirmed the dismissal.

The accident at issue occurred on U.S. Hwy 84 in DeSoto Parish. Michael Carter, an employee of SWEPCO, was driving his work truck north on La.Hwy. 482. When he approached the intersection at Hwy.84 Brumley, was approaching the same intersection, followed by his employee, Ancul Bland. At the intersection Michael had a stop sign and Bland and Brumley had the right of way. Michael claims he stopped but did not see the tractor trailer Bland was driving and pulled into the intersection to make a right turn and collided with the tractor trailer. Brumley witnessed the accident, but was not physically involved. The police report found that the tractor-trailer was not roadworthy and had defective brakes, steering, and headlights. They also found that Bland did not have a valid Class A Commercial Driver’s License.

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The Berniard Law Firm is look to tackle a negligent refinery by representing a Chalmette resident assaulted by chemicals released from a St. Bernard Parish oil refinery. While taking a walk through her neighborhood on the morning of September 6, 2009, the woman observed white dust covering homes and vehicles. She experienced exposure symptoms including difficulty breathing, coughing, sore throat, headache, and burning sensations in her nose and eyes. As the symptoms persisted, she went to a hospital the following day. The white powder comprised a spent catalyst including components of kaolin and titanium dioxide which are eye, skin and lung irritants. Portions of Chalmette, Arabi, and New Orleans’ Lower Ninth Ward were blanketed with the fine white powder.

In addition to releasing a ton of spent catalyst, the refinery released two thousand pounds of sulfur dioxide, one thousand pounds of nitrogen oxide, and an unspecified amount of hydrogen sulfide. Not only was the refinery negligent in releasing the toxic chemicals but also for failing to notify area residents of the accident in a timely manner so that they could take precautionary measures. Moreover, children and pets are more susceptible to exposure symptoms due to their smaller size while residents with certain pre-existing medical conditions would also suffer greater harm than a healthy adult. For example, children have a greater lung surface area to body weight ratio along with other parameters that differ from adults leading to greater susceptibility to chemical inhalation effects at lower concentrations. Likewise, pre-existing medical conditions including chronic pulmonary disease and asthma increase susceptibility to exposure symptoms at lower concentrations.

Specifically, sulfur dioxide may induce acute exposure symptoms comprising irritation in the upper respiratory tract, nosebleeds and rhinorrhea (runny nose), coughing and choking, expectoration (coughing up phlegm), dysphagia (difficulty swallowing), and oropharyngeal erythema (redness). Although predominately affecting the upper respiratory tract via inhalation, sulfur dioxide also acts as an intense eye and skin irritant by combining with water producing sulfuric acid and sulfurous acid. Dermal exposure symptoms range from irritation to urticarea (itchiness) and burns. Given this high solubility, sulfur dioxide is also rapidly distributed throughout the body producing metabolic acidosis possibly inducing vomiting, diarrhea, abdominal pain, fever, headache, vertigo (dizziness), and agitation. Decontamination should include removal of contaminated clothing and rinsing of the skin and eyes. Reproductive and teratogenic effects (malformation of embryo, fetus) of exposure are unknown, which has raised concerns among women at varying stages of pregnancy at the time this accident occurred.

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On Saturday, July 24, 2010, tragedy struck in East Feliciana Parish as a 9-year-old girl died in a car accident. Reports state that the young girl, Tobiya Kato, was killed when the car driven by her mother, Jamet Kato, veered off the road and flipped before coming to a rest on its roof in a wooded area. This tragic event serves as a reminder of the importance of all passengers wearing seatbelts, especially young children seated in the back of a vehicle.

According to reports, the young girl, whom was seated in the back seat, was thrown from the vehicle during the accident due to not wearing her seatbelt. Police noted that in addition to the 9-year old girl, three other children, ages 6, 5, and 2, were also in the back of the vehicle, not wearing seatbelts, when the accident occurred. However, Jamet Kato, along with a 12-year-old sitting in the front seat, were both wearing their seatbelts at the time and only suffered minor to moderate injuries in the crash.

The sheer number of deaths that could be prevented by properly buckling up in a vehicle are staggering. According to NHTSA’s study, in 2008 there were 25,351 accidents involving the death of passengers in the United States. Of those, 12,865, or 50.7%, passengers were not utilizing safety restraint devices, such as a seat belt or car seat for younger children. The statistics for Louisiana residents are similarly shocking. Of the 669 passenger deaths in 2008, 59.2%, or roughly 400 passengers, died in accidents in which they were not buckled.

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In Pearl River on July 9, an 18-wheel truck blew out a tire and crossed over into oncoming traffic killing four people. The accident at the Louisiana/Mississippi state line occurred when the driver of the semi was driving northbound on I-59 and lost control of the vehicle after the tire blew out. The semi crossed the center median, and in what state police describe as an almost head on collision, the semi collided into a Dodge Ram pickup and led to both vehicles sliding off the road. While all four individuals in the truck were killed, the driver of the semi suffered minor to moderate injuries. The driver of the semi was from Montgomery, Texas and the four passengers in the Dodge Ram pickup were from Carriere, Mississippi. For his part in the accident, the driver of the semi was charged with careless operation and four counts of negligent homicide.

It is important to know that while negligent homicide is a criminal charge, suit may also be filed under a wrongful death cause of action for the four victims that were killed in the accident. Historically under common law, wrongful death was not available and only criminal law was an option. Under statutory law however, a person can be held responsible in civil court in addition to criminal court for wrongful death. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, “If a person dies due to the fault of another, suit may be brought […] to recover damages which they sustained as a result of the death.”

In civil court, the basis for wrongful death is negligence. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. If a claim is brought in negligence, the driver is held to a “reasonable person” standard of care. The question to ask is, “Would a reasonable person behave this way under the same or similar circumstances?”

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Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no “genuine issue of material fact” to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A “genuine issue of material fact” is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is “material” when it relates to an essential element of a plaintiff’s theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the “movant”). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant’s negligence or a plaintiff’s contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant’s allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father’s pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt’s truck. At least one of the logs shattered the driver’s side window and entered the cab of the truck, severely injuring Pruitt.

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A very recent Louisiana Court of Appeals decision arises from a lawsuit filed by Lloyd and Dotris Bordelon to recover damages stemming from a pedestrian-vehicle accident that followed a vehicle-vehicle collision.

The first accident occurred in September 2003, when John Vercher and his wife were going north on Highway One in Avoyelles Parish to Mr. Bordelon’s house. Mr. Desselle was also going north on the highway and was attempting to pass the Verchers, unaware that Mr. Vercher was going to turn left into Mr. Bordelon’s driveway.The vehicles collided. Mr. Bordelon came out of his house to see what happened. After determining no one was hurt, Mr. Bordelon walked out to the highway to direct traffic. Mr. Bordelon reported that he heard someone asking him to move the vehicles, at which point he turned around and said they should not be moved. When Mr. Bordelon approached Mr. Vercher’s car, it lurched forward and hit Mr. Bordelon, throwing him into the post of his carport and an aluminum building. Mr Bordelon sustained injuries to his brain, face, and stomach. The Bordelons filed suit against both Mr. Vercher and his insurer and Mr. Desselle and his insurer for injuries he sustained as a result of the initial crash and resulting collison. The lawsuit against Mr. Vercher was dismissed prior to trial. After trial the court found that Mr. Desselle was one hundred percent at fault for the collision between him and Mr. Vercher and that both Mr. Desselle and Mr. Vercher were fifty percent at fault for Mr. Bordelon’s injuries, ordering Mr. Desselle and his insurer to pay the entire $50,000 with no reference to the assignment of fault. On the first appeal, the trial court executed a judgment allocating fault and damages equally between Mr. Desselle and Mr. Vercher. Mr. Desselle argued in this appeal that the trial court should not have found Mr. Desselle even fifty percent at fault for Mr. Bordelon’s injuries.

The defendants reasoning for reversing the judgments include the separate nature of the two accidents, the time and distance between them, and the fact that Mr. Desselle owed no duty to Mr. Bordelon.

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When filing a complaint, the attorney needs to make sure that they are bringing in the correct parties and including the right claims with their legal action. Mistakes can result in losing the entire case before it even begins thus focusing on even the smallest details can save a complaint from utter failure.

As careful as one may try to be in forming a complaint, mistakes do happen. This aspect was explored in Glasgow v. Par Minerals Corporation, where an oilfield explosion and subsequent fire at a wellsite near Kinder, Louisiana, significantly injured a direct employee of Therral Story Well Service (TSWS). Par Minerals had contracted with several companies to drill the well for oil and gas, one of the companies being TSWS. The employee who was injured initially filed a tort suit against Par Minerals alone, including Avery Graves as the on-site supervisor for Par. The latter part of the petition was wrong as Avery Graves was the president and sole-shareholder of Pipe Services.

This mistake resulted in two supplemental and amended petitions, leaving Par as the sole defendant. Over one year later, a third supplemental and amended petition added to Par, Pipe Services and its insurer, Colony Insurance Company. Thus, the final petition had three defendants, one named within one year of the accident, and two named over one year after the accident. The timing of the amendments and petitions are extremely important, because had the latter of the two defendants been named within one year of the accident, the entire result of the case may have come out differently. Again, focusing even on the smallest details can help save a case from failure.

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