Articles Posted in Strict Liability

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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.

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According to a recent ABC News report, court documents from a class-action lawsuit against that has been filed against Toyota claim that the company is in possession of documents that show that the automaker documented confirmed cases of sudden acceleration without driver error as many as 7 years ago. Other alleged company documents show that Toyota has been able to recreate instances of sudden acceleration, again without driver error, within the last year.

The documents are referred to in a revised complaint that has been filed against Toyota in U.S. District Court for Southern California. In the suit, forty Toyota owners claim that sudden acceleration problems has caused them financial harm by reducing the resale value of their cars. The suit claims that, “Toyota failed to disclose that its own technicians often replicated sudden acceleration events without driver error.”

In a 2003 document quoted in the complaint, a technician reported a sudden acceleration incident where he found a “mis-synchronism between engine speed and throttle position movement.” The technician requested immediate action to correct the dangerous problem. Another document, from 2005, involved a Toyota dealership report that states that a dealer verified two separate acceleration incidents with a Toyota Sequoia. A 2003 report described what was called a “surge event,” despite no trouble code on a scan tool. According to consumer safety experts, many of the sudden acceleration problems could be resulting from a defect in Toyota’s electronic throttle control systems. The company has repeatedly denied that the vehicles have electronic problems.

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In a previous post, we explored the elements of a negligence action that arose after a customer slipped and fell on a pool of vomit left by another customer while visiting a store in Farmerville. One of those elements is “notice,” or whether the merchant created or was aware of the unsafe condition that caused the plaintiff’s injury. In the Farmerville case, the plaintiff was unable to show that the store owner had notice of the vomit on the floor that caused her fall, and so her suit was not successful.

The recent case of Peoples v. Fred’s Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010), illustrates how the plaintiff’s ability to prove notice can result in a different outcome. On August 10, 2004, Virginia Peoples and her husband, Wyndell, entered the Fred’s Store in Tioga. Upon passing through the entranceway, Peoples tripped over some boxes laying on the floor just inside the door which extended into the walkway. The boxes contained gazebos that were part of a clearance sale. Peoples fell forward into a display of stacked coolers, where she hit her chin before landing on the concrete floor. Pain in her neck and right wrist, shoulder, and arm prompted her to go to the emergency room at LaSalle General Hospital, where she was diagnosed with a pinched nerve and a radicular neck injury.

Peoples sued Fred’s Store for negligence, a bench trial was held, and Peoples was awarded nearly $200,000 in damages. Fred’s Store appealed, arguing, among other things, that the trial judge improperly concluded that Fred’s Store had notice of the improperly placed boxes that caused Peoples’s fall.

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A recent decision from the Louisiana Court of Appeals provides insight into precisely what a medical provider must get from a patient in order to create the presumption that they consented to medical treatment under Louisiana law.

This litigation arose from a procedure performed at St. Patrick Hospital in Lake Charles. Dr. Charles Humphries, a family practitioner, performed a colonoscopy on James J. Price, IV. Dr. Humphries detected several polyps in Mr. Price’s colon during the procedure and immediately aborted the procedure and had a gastroenterologist, Dr. Francis Bride, surgically excise the polyps–removing three of four of them without incident. During the removal of the fourth, the electrocautery snare being used malfunctioned causing a deeper burn of the colon that was desired. Dr. Bride visually inspected the area to rule out the possibility of an acute perforation of the colon. Dr. Bride did not see a perforation but ordered abdominal x-rays to confirm his lack of suspicion, with x-rays negative for any danger signs. Mr. Price’s stay was extended to rule out a perforation, and he was released to go home.

The next day, Mr. Price began to experience symptoms of a perforation and was directed by Dr. Humphries to go the ER at St. Patrick’s hospital. Mr. Price was prescribed antibiotics in hopes that the perforation would seal on its own. When this didn’t work, surgery was required.

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Jeanine Pryor of Lake Charles was injured when she fell exiting bleachers at a football came and filed a claim for damages due to injuries she sustained. Her claim was denied at the trial court level and in a recent decision, the Louisiana Third Circuit Court of Appeals reversed the trial court and awarded Ms. Pryor a significant damage award (over $500,000), even after reducing her damages by 30% due to a finding that she was partially at fault for the accident.

Ms. Pryor, of Lake Charles, went to New Iberia to watch her grandson’s team play a playoff football game at Lloyd G. Porter Stadium. The facility is owned by the Iberia Parish School Board. Spectators at the field sit on either west or east side spectator seating. According to reports the west side, where home team fans sit, is a much nicer facility made of concrete that sits well off the ground and has ramps leading to the seats. The east side of the field, where visiting teams traditionally sit, contains metal frame bleachers with wood seat boards and foot boards and rails around the rear and upper portions. The bleachers have no aisles for walking up into the stands or rails to help someone walking up rows.

When she arrived at the stadium, the 69 year old Ms. Pryor walked to the visitor side of the stadium, balancing on the uneven ground with her daughter’s help. Because the players and cheerleaders standing on the sidelines blocked the view of the game from the bottom rows, Ms. Pryor needed to climb up into the stands. Because she could not step up the eighteen inches from the first board to the second she had to grab the second board and lay on her side to swing up her legs one at a time. During halftime, Ms. Pryor needed to use the restroom so, again, with her daughter’s help, she walked down the bleachers. When she came to the second seat board, she stepped down slowly the extended distance to reach the first board and fell back. She dropped her daughters hand and suffered a broken leg and other injuries.

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When a lawsuit is brought the positions of the parties are frequently unequal. This is often the case for products liability suits, which involve an injured consumer or user of a product seeking to recover damages from the maker or seller of the product. Being a large and sometimes repeat player in the legal system can give businesses an advantage over an individual that is using the court system for the first time. Depending on the size, structure, nature of the business, as well as other factors, businesses may have an in-house legal department or regular representation from an outside firm. This kind of legal experience and expertise can sometimes result in the business defendant being able to delay, increase the cost of, or otherwise inhibit the discovery process. A potential plaintiff needs a competent, experienced, and dedicated lawyer to ensure that all the discovery evidence he or she is entitled to is provided by the defendant.

An example of this type of battle is the recent case called Soileau v. Smith’s True Value and Rental, which named Deere & Company and John Deere Limited as defendants. Ms. Soileau was injured in an accident on November 1, 2007 when a John Deere Model 460 front end loader became detached from a John Deere Model 4510 tractor and struck her right leg. Her initial lawsuit was brought on April 21, 2008.

Ms. Soileau filed interrogatories and requests for production of documents at the time of initially filing her lawsuit. However, each round of requests seemed to lead to refusals, delay, and incomplete information. Ms. Soileau even received incomplete information from the Consumer Product Safety Commission. This battle eventually led Ms. Soileau to turn to the court to force cooperation from the defendants. In addition to a motion to compel the defendants to answer her interrogatories, she sought to have them sanctioned, barred from producing certain evidence at trial, and forced to pay penalties and attorney fees for the trouble caused by their lack of cooperation.

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In a recent Louisiana Court of Appeals decision, Janika Johnson appealed a verdict in favor of Gilley Enterprises, owner of a Monroe McDonalds. Johnson, as a customer at the McDonald’s in 2006, was involved in an altercation with an employee. There was a history of ill feeling between Johnson and the employee because Johnson was dating the father of the employee’s child. Johnson called the other woman over to the counter, and a conversation ensued which turned loud and heated. The employee reached over the counter and struck Johnson in the face. Other store employees intervened. Johnson was told to leave and started towards the door. The other woman picked up a cup, dipped it into an open vat of hot grease, and threw the hot grease on Johnson, who suffered serious burns on her face and body.

Johnson filed suit against Littleton (the employee) and Gilley Enterprises, contending that Gilley was liable because their managers were negligent in hiring, training, and supervising Littleton and that Littleton’s attack occurred in the course and scope of her employment, making Gilley vicariously liable. Gilley responded that all of Johnson’s causes of action had prescribed. The trial court granted Gilley’s exception for the negligence claim but denied it pertaining to vicarious liability. Gilley filed a motion for summary judgment to dismiss the remaining vicarious liability claims arguing that Littleton was acting outside the course and scope of employment, the trial court agreed and Johnson appealed. On appeal Johnson argued that the trial court erred in concluding La.C.C. art 3493.10 was inapplicable to her claims of negligent hiring, training and supervision.

Louisiana C.C. art 3493.10 states:

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Admitting your elderly mother into a nursing home is supposed to relieve stress and lift a burden from your shoulders. You believe she is going to receive the proper care she needs that you are unable to provide.

Unfortunately, for Edward Lewis, tragedy happened after he made this tough decision. His 93-year old aunt, who Lewis considered a mother, drowned in a whirlpool at Easthaven Rehabilitation Care Center in 2002. The nursing home told Lewis that his aunt died peacefully in her sleep but it wasn’t until one month later he learned the truth — an employee had placed his wheelchair-bound aunt in a whirlpool unsupervised, even after Lewis told the staff he did not want her in the water. Sadly, actions that cause harm or even death to a nursing home resident can generate minimal response from the state.

In Louisiana, nursing homes are required to report all “suspicious deaths.” Per a NOLA.com article approximately 4,500 nursing home residents die every year in Louisiana and of 250 wrongful deaths reported from 1999-2005, only 15 of those deaths were labeled as “suspicious.” Steven Miles, a University of Minnesota professor who published a 2002 report called “Concealing Nursing Home Deaths,” said almost half of the reported cause of deaths in nursing homes across the nation is wrong. For example, back in 1998 in Arkansas one 78 year old nursing home resident

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Under Louisiana law, the doctrine of sudden emergency is a defense available to a defendant who is confronted with a sudden and unexpected situation of danger and who responds as a reasonably prudent person would under the circumstances. The doctrine serves to limit the defendant’s liability even if it is later determined that he did not chose the ideal course of action in response to the sudden danger.

The Court of Appeal has expressed:

it is the settled jurisprudence of this state that a person is not obligated to exercise the same degree of care or judgment as is required under ordinary circumstances… A mistake of judgment or failure to adopt the best or wisest course for avoiding injury does not necessarily result in a finding of negligence. To contend otherwise is to attempt to exact hindsight instead of foresight from a motorist faced with a sudden emergency (Fouche v. St. Paul Fire & Marine Ins. Co., 153 So.2d 180 (La. App. 2d Cir. 1963).

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If you have slipped and fallen in a Louisiana store, you may not realize you are not alone. What’s more, you might not understand that you may have the legal rights to make a claim against the store for the incident. Just recently a lawsuit was filed in western Louisiana by a customer of a store who injured herself on the premise. These types of cases are classically known as “slip and fall” case. The victim in this case, Leona Jordan, was shopping at Walmart when she slipped on water that had accumulated on the floor and fell. Jordan was injured and hurt her hip, back, knee, and leg.

These types of accidents are far from rare. In fact, earlier this month Ellen Hickman injured herself at a Louisiana Dollar General store. She slipped and fell on a small plastic toy. As a result of the accident, she hurt her lower back, back of her head, ankle, and right leg.

If you have had a similar experience, you should know that Louisiana has laws in place to protect you.

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