Articles Posted in Strict Liability

by

On July 24th in Lincoln Parish, two trucks collided on I-20 leaving one dead and several injured. While traveling east on I-20, a Chevy Suburban attempted to pass a GMC truck hauling a livestock trailer. The Chevy Suburban swerved right hitting the GMC truck and both vehicles ran off the road. The vehicles struck the tree line, the Chevy Suburban striking several trees before stopping. The front-seat passenger of the Chevy Suburban was pronounced dead at the scene. Two backseat passengers suffered minor injuries, and the 16-year-old driver of the Chevy Suburban was in critical condition. The driver and passenger of the GMC truck sustained moderate injuries. Three cows in the livestock trailer died in the crash.

It is unclear whether the accident was due to a mechanical defect, driver error, or another cause. Louisiana State Police say that impaired driving is not a likely cause of the accident, but they are awaiting routine toxicology tests to make the final determination. All passengers were wearing seatbelts, and so far no citations have been issued.

The determination of whether the accident is due to a mechanical defect or driver error is critical to determine the claims to file and the parties to bring a lawsuit against. An attorney hired by an injured party may investigate whether the owner of the vehicle negligently maintained the vehicle. To establish negligence, the attorney 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. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

Continue reading

by

A July CNN report has brought to light a lawsuit filed against Louisiana school officials for repeatedly handcuffing and shackling a 6 year old. The lawsuit has been filed by rights advocates and the child’s parents on behalf of children in the Louisiana Recovery School District, a statewide entity managed by the Louisiana Department of Education. The superintendent of the district, and school officials and security officers at the school, Sarah T. Reed Elementary, were named in the lawsuit as well.

According to the suit, the 6 year old boy was handcuffed and shackled for “minor offenses,” involving a shoving match with another student. The School District stands behind the behavior of their employees and has indicated that the incident was an isolated one. They did not arrest the student or terminate the employee involved. The school principal, Daphyne Burnette also defended the school’s action, going so far as to state that it is school policy to handcuff “out of control” students, and that if children fail to follow rules in the future, they will be handcuffed. The plaintiffs in the lawsuit disagree with this policy and have argued that the punishment methods crossed the line and that the conduct was “unreasonable and excessively intrusive.”

The child’s father, Sebastian Weston, claims that his son’s life has been forever changed because of the incident.

Continue reading

by

Car accidents oftentimes are not simple, clear-cut events that lend a clear idea of who was right and who was wrong. Instead, many times it is left to a court to decide what the circumstances were that led to the collision and the amount of responsibility each party had for it occurring. As a result, because no court is perfect, individuals who have been harmed due to another party’s acts are left out in the cold because they could not prove their case. However, each year new technology comes out that provides a better opportunity for plaintiffs, and their attorneys, to prove their case and receive the compensation they deserve.

One firm, Advanced Research and Technology (ART) Corporation, works with the very technology required to prove cases. Utilizing Finite Element Analysis (FEA), commonly referred to as computer simulations, the company provides compelling engineering evidence to explain the cause of a crash-related case. FEA’s due this by calculating the kinematics of the investigated accident (speeds, relative motion, different parts of accident) and structural analysis (where the cars collided and relevant stresses, strains, failures, energy displacements, etc.). By analyzing this information, FEA can help plaintiffs win cases related to auto and motorcycle crashes, airbag and seatbelt related problems, structural analysis relating to accidents or blasts, slip and fall cases, fuel tank and pipeline pressure analysis and a variety of others.

FEA simulations are widely recognized by the engineering community as a reliable and advanced tool for solving structural dynamics, crash, blast and impact-related matters. Automotive companies often use FEA for car testing in the same way that highway safety systems are designed using the technology. The reliability of FEA comes down to the simulator being able to develop accurate formulations or equations to explain how the millions of small elements involved in a collision react when variables are at a certain set. Because of its ability to determine how a car will behave in a collision and the effects of a collision, technology experts are able to move backwards and determine what variables were in place to lead to the results suffered.

Continue reading

by

Louisiana courts, like those in most other states, enforce a prohibition in jury trials known as the “golden rule.” During a closing argument, the plaintiff’s attorney may not ask the members of the jury to imagine themselves in the place of the plaintiff when deciding how much to award the plaintiff in damages. The rationale for prohibiting such a request is that the jury’s sympathy may be unfairly invoked, resulting in an inappropriately large award of damages. So, while the jury should not be asked to imagine themselves going through the same experience that the plaintiff endured, the plaintiff’s attorney may simply direct the jury to consider the pain and suffering the plaintiff has been through.

An alleged violation of the golden rule was one basis of the appeal in Tingle v. American Home Insurance Co., No. 10-71 (La.App. 3d Cir. June 11, 2010). On March 5, 2006, Brian Montgomery was driving his tractor-trailer while intoxicated in Lake Charles. He ran a red light and slammed into the car of Levi and Tasha Tingle. The Tingles’ two-year-old daughter, Madison, who was also in the car, was killed; her parents suffered severe injuries. The Tingles settled with Montgomery’s employer, Boots Smith, for the limits of his primary liability insurance policy. The Tingles then filed suit against Smith’s excess insurance carrier, American Home Insurance Co. At the trial, the jury awarded the Tingles over $10 million in damages, of which approximately half were punitive damages.

On appeal, American argued that the trial court erred in permitting the Tingles’ attorney to “implore the jury to put themselves in the [Tingles’] shoes.” (The court did not include in its opinion exactly what the Tingles’ attorney said in his closing argument.) But the court declared that it “prefer[s] to allow the trial court latitude to conduct a trial,” citing a line of Louisiana cases espousing the view that

Continue reading

by

A power failure at Chalmette Refining LLC has led to a thin layer of white powder descending upon Southeast Louisiana, raising concerns about the toxicity and potential harm that could emerge from exposure. Citing a power failure for the reason that up to one ton of catalyst were released into the air and falling down atop cars, homes, businesses and other property, the company has attempted to assure the public that safety is not a concern. However, the care that the refinery recommends during clean-up tells a much different story.

Spreading across the communities of Arabi and New Orleans’ lower ninth ward, the powder used for refinery processes resembled simple dust or powdered sugar and alarmed many during a time in which little to no information can cause significant panic. Taking place on September 6th, many in these communities are left wondering just why chemical releases keep happening and what is being done to prevent them from happening.

Louisiana’s Department of Environmental Quality (DEQ), already investigating the unapproved release of catalyst, has notified the public that, after photographic any and all damage the powder has caused to their property, they can move forward with clean-up. Yet, in their required notice to the DEQ, the Chalmette refinery warned that gloves and safety glasses should be used when cleaning up the material. St. Bernard Parish Fire Chief Thomas Stone warned that the powder could be an irritant to individuals with respiratory problems and that the powder should be cleaned in order to prevent extended exposure.

Continue reading

by

John C. Elliott, 26, of Zavalla, Texas was driving a 1999 GMC pickup east on LA.8 and he lost control while passing another vehicle in a curve. He collided with several trees before the truck stopped on La. 8 facing the other direction. Elliot was injured seriously and taken to Lake Charles Memorial Hospital. There were two passengers in the car.

As reported in the Leesville Daily Leader

His two passengers,19-year-old Susie Dixon and an infant, both of Zavalla, Texas, suffered minor injuries and were transported to Byrd Regional Hospital.

Continue reading

by

In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not “compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances.” Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

Continue reading

by

In a tort case based on negligence, a plaintiff must be able to show that the defendant owed a duty to the plaintiff and that the defendant breached that duty, resulting in harm to the plaintiff. In some circumstances, though, it can be difficult for a plaintiff to obtain clear evidence of the defendant’s breach of duty.

The concept of “res ipsa loquitur,” which is Latin for “the thing speaks for itself,” can be employed in certain situations to establish the defendant’s breach of duty in the absence of direct evidence. Under this doctrine, the mere occurrence of an accident raises the inference of negligence on the part of the defendant. When res ipsa loquitur is applied, the defendant bears the burden to put on other evidence to dispute the presumption of negligence.

There are two essential elements for applying res ipsa loquitur in a particular situation:

Continue reading

by

In 1984, a natural gas pipeline exploded in the parish of West Feliciana resulting in death and destruction to people and property. The pipeline was owned and operated by Texas Eastern and Clarkco was performing work on the pipeline. The pipeline was on Mrs. Winters’ property and Clarkco sued Mrs. Winters for general allegations of negligence or strict liability with regards to the pipeline.

You may have heard the term strict liability before but you are not certain as to what the term actually means. Strict liability means that a person is responsible for damage or loss caused by his or her actions or omissions even if the person is not at fault.

It is irrelevant if that person attempted to take all the possible precautions to prevent injury concerning strict liability cases. With strict liability, the court simply says the person is guilty. It is important to note that not all injuries stem from strict liability crimes. The most common incidences involve people who own wild animals and people who deal with inherently danger instruments. This means that the object itself is very risky to try to control.

Continue reading

by

Policy makers have expressed doubt multiple times this year about whether enough is being done to protect the millions of drivers on the road. The recent Toyota recall of a multitude of cars with defective parts is a clear illustration of product liability and the measures to which a manufacturer is liable for problems with their items.

Representative Darrell Issa of California, the leading Republican on the Committee, complained during the hearings held regarding the automobile issues that Toyota knew about sticking gas pedal problems and improperly placed floor mats for years and delayed addressing the problems on cars sold outside of Japan.

Although the exact cause of the safety lapses is undetermined at this point, politicians have their own theories, as expressed at back-to-back congressional hearings just a few days. Business Week, for example, reports that John Mica, a Republican Congressmen from Florida, believes Toyota saved millions of dollars in 2007 by knowingly delaying a recall over unintended acceleration matters.

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