Articles Posted in Wrongful Death

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Louisiana, like many other jurisdictions, has adopted the doctrine of comparative fault. Prior to comparative fault, many plaintiffs were denied recovery from a negligent wrongdoer if they also were negligently at fault (according to the doctrine of contributory negligence). Comparative fault alleviated this harsh rule of contributory negligence and, for some time now, Louisiana Law has provided relief for an injured plaintiff, even if said plaintiff was negligent as well. For instance, if an injured plaintiff filed suit and the jury decided that the defendant was responsible for 15% of your injuries, that defendant would be liable for 15% of the damages. Such a rule promotes a fairness, but how does this rule comport with legal fees?

Trial itself isn’t free, and in many cases expert testimony is crucial. The general rule is that the percentage of fault assigned applies to court costs as well.

In a recent case, Davis v. State of Louisiana, there was an automobile accident where the jury found DOTD 25% at fault but the judge, rather than assigning DOTD 25% of the costs, assigned them 100% of expert fees and clerk’s costs.

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In order to hear a claim a court must have jurisdiction over the matter. Essentially, that means that the court must be legally able to hear the case. For example, some courts are only legally allowed to hear certain types of cases, like the Tax Court, which only hears tax cases. In addition, some courts may be precluded by administrative agencies. If an administrative agency is supposed to address the issue, then the court is generally not allowed to step in to fill the administrative agency’s role. The laws occasionally create small areas where the court can act, but in order to fit in those areas, your case has to have a certain type of very specific facts.

A case arising from the Parish of East Carroll explains these conflicts. In that case, a woman working at Shady Lake Nursing Home was attacked by a resident. The resident was outside of his room when he was not supposed to be, the women told him to go back to his room, and he attacked her in a fit of rage. In this instance, the woman was obese and had high blood pressure. She started having blood pressure issues shortly after the attack and was subsequently rushed to the hospital. She died approximately one hour after the attack.

Because the attack occurred at her workplace while she was working, workers’ compensation covered the attack. However, her family also attempted to sue Shady Lake Nursing Home for damages. They argued under two major exceptions to workers’ compenstation law: intentional tort law and heart conditions.

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In the previous post, we looked at the background and majority opinion in Khan v. Normand, et al, which involved the tragic death of Nayeem Khan after he was hog-tied by deputies of the Jefferson Parish Sheriff’s Office. This post will delve into the dissent written by Judge Garza.

Judge Garza wastes precious little time in strenuously objecting to the majority’s conclusion. He writes:

The district court in this case concluded that the facts surrounding Khan’s death fell somewhere in between Gutierrez and Hill, but that Hill ultimately controlled. The majority has taken a different route to the same conclusion, opining that Gutierrez was a narrow holding that cannot be extended to the facts of this case, and that our decision in Hill makes it difficult to say that the law was clearly established.

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Precedent is an absolutely vital part of American jurisprudence. Judges look to previous court cases to help guide them through their decision making process. Judges attempt to distinguish cases that are different, and analogize similar cases. Precedent adds an amount of stability to our justice system. But what happens when the outcomes of seemingly similar cases appear contradictory? The case of Khan v. Normand, et al. helps illustrate the importance of precedent in the context of the tragic death of a man in police custody and illustrates how judges can look at the same precedents and reach very different conclusions.

On July 17, 2007, Nayeem Khan, a man with a history of mental illness, began to run around a grocery store yelling that people outside were going to kill him. While visibly upset and delusional, Mr. Khan was also suffering from a drug-induced psychosis at the time of this incident. After managing to handcuff him, store security guards, and an off-duty sheriff’s deputy that happened to be in the store at the time of the incident, contacted the Jefferson Parish Sheriff’s Office. When deputies began to remove Mr. Khan from the store, he physically resisted. Eventually deputies restrained Mr. Khan by handcuffing both his hands and legs behind his body and connecting his hand and leg restraints with another pair of handcuffs. This meant Mr. Khan was in a four-point restraint which effectively hog-tied him. Mr. Khan began to have great difficulty breathing almost immediately, and deputies removed the restraints and administered CPR until an ambulance arrived. Mr. Khan began to breathe again, but tragically died later that night.

Mr. Khan’s parents sued the Jefferson Parish Sheriff’s Office and the individual deputies involved in their son’s restraint alleging excessive force and violations of Nayeem’s constitutional rights. The Jefferson Parish Sheriff’s Office sought a summary judgment alleging that the deputies were protected from liability on the basis of qualified immunity. The district court agreed, and granted the motion for summary judgment on the grounds of qualified immunity which prevents government officials from being sued while in the course of performing their official duties.

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Duty, causation, breach, and damages…what do these four little words mean to you? They could mean everything if you are litigating a claim of negligence because these terms represent the elements that must be satisfied in order to successfully prove your case. Negligence suits have historically been analyzed using these four elements and it is important to note that if a plaintiff fails to prove even one element of his claim, he loses on the entire tort claim.

The duty of care refers to the circumstances and relationships which the law recognizes as giving rise to a legal duty to prevent foreseeable harm from occurring to others. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care. The idea of establishing a duty played a pivotal role in, Bloxom v. The City of Shreveport, a highly controversial case taking place in DeSoto Parish in 2010.

In Bloxom v. City of Shreveport, David McFarlin, the president of Blue Phoenix Trading Company interviewed Brian Horn for a cab driver position. Horn, who had previously served time on a conviction for a felony of sexual assault and was a registered sex offender, was hired by McFarlin and drove a cab marked “Action Taxi.” In March of 2010, Horn posed as a young female and lured a young boy into his cab; Horn later murdered the boy and dumped his body in a wooded area off Hwy. 171 in DeSoto Parish. Horn is currently awaiting trial for capital murder. Meanwhile, the boy’s mother filed a wrongful death suit against both David McFarlin, individually, and his Blue Phoenix Trading Company. More information as it relates to the facts of this case and on the capital murder charge can be found here.

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In Louisiana, the Department of Transportation and Development (DOTD) is responsible for the maintenance of public roadways “in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and resonable prudence.” In order to accomplish this goal in a safe and legal manner, the DOTD follows guidance defined in the Manual for Uniform Traffic Control Devices (MUTCD). The issue in the case of Morales v. Davison Transportation Services arose out of a tragic multi-fatality multi-car accident in Madison Parish. The legal issue the Second Circuit Court of Appeal faced was whether or not to affirm a lower court’s granting of the DOTD’s Motion for Summary Judgment.

On November 7, 2007, a DOTD team was performing road grading on the inside shoulder of a flat and straight section of westbound I-20 in Madison Parish. A motor grader was scraping built up vegetation and dirt from the highway, and a shadow vehicle was following behind. The shadow vehicle was a truck that had an arrow board on top of it directing traffic into the next lane, a set of strobing lights and a sign cautioning drivers of the slow moving vehicle ahead. Records showed that the two DOTD vehicles were traveling approximately 3-5 miles per hour down the highway while performing their work.

The accident occurred when a semi-truck that was rapidly approaching the DOTD vehicles in the inside lane while trying to pass another semi swerved into the right lane but ended up clipping the back of the DOTD truck. The truck then hit the motor grader and ricocheted the first semi into opposing traffic were it collided head-on with an SUV. Both occupants of the SUV were killed, the semi driver suffered permanent brain damage and the DOTD truck driver was also injured. The children of the SUV occupants, the guardian of the semi driver, and the DOTD truck driver all brought suits for damages.

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The rule of thumb to the average driver is that the driver of the car that rear-ends another is always at fault. Although that may be the case generally, there are exceptions.

While Louisiana law states that a driver is not allowed to follow more closely that is “reasonable and prudent,” considering the vehicle’s speed and traffic conditions. As such, a rear-end collision only creates a presumption of negligence. Thus, the driver is afforded the opportunity to rebut that presumption by showing the driver of the other vehicle was driving unpredictably and, thus, that the situation could not have reasonably anticipated.

A little over three years ago, in Hessmer, LA, there was a rear-end collision that the District Judge held was the fault of both drivers. What is more striking is that the Judge allocated 75% of the fault to the driver that was rear-ended.

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The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

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A recent sad case from the Second Circuit Court of Appeal demonstrates how difficult statute interpretation can be. Adrienne Breana Howard was a high school student in Rayville, LA. Struck by an oncoming school bus when she was either pushed or fell off the sidewalk and into the street, Breana tragically died from her injuries.

Breana’s mother filed suit against a number of parties, including specific employees of the Richland Parish School Board. The rationale was that Breana and another student, Courtney McClain, were in the midst of a physical altercation on the sidewalk at the time of the accident. The suit argued this fight which would have been easily visible to any school staff supervising the area. Moreover, Breana had been expelled from Rayville High School precisely because of her ongoing dispute with Courtney. Thus, teachers had notice of the relationship between Breana and Courtney. The suit thus alleged instructors on duty should have been on the lookout, seen the altercation and stopped it in a timely fashion.

The allegations brought included failure to supervise, failure to stop the fight in a timely manner and instead allowing the students to continue fighting uninterrupted, failure to adequately staff the bus area, failure to provide a safe environment on campus and failure to have designated bus safety areas. These are largely negligent omissions.

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The arena of insurance law is a very confusing area in which, quite often, significant knowledge and experience is required for a quality outcome. It is important to know which types of coverage are available and applicable for different circumstances. Without knowing which coverage can apply and to what extent it can apply, an insured individual may find themselves without the coverage they thought they would have in the event of an accident. In some circumstances, insured individuals attempt to insure themselves in the event that the person who they get into an accident with is uninsured or underinsured. This has the result of allowing the insured to have access to a pool of money under all circumstances. Sometimes two different people may have uninsured coverage on the same vehicle or under the same policy. The impact of this kind of insurance largely depends on the relationship status of the parties. This type of a scenario was the focal discussion point in Hardy v. Augustine.

In this case, the Court discussed a way in which the plaintiffs attempted to add more claims to the general damages claim. Mr. Augustine was driving down the road and swerved into oncoming traffic. Mr. and Mrs. Hardy’s son was driving a motorcycle and was involved in a tragic head-on collision with Mr. Augustine after he swerved into oncoming traffic, which ultimately took his life. The tragic event led to Mr. and Mrs. Hardy bringing action against Mr. Augustine and his insurance company. The Hardys brought two distinct claims: they sued for past and future loss of love, affection, and companionship and they also sued for past and future grief and anguish. At the trial level, the jury awarded damages for each distinct claim. The jury awarded damages for both claims plus medical expenses and funeral costs.

Assuming that the amount of damages were going to exceed Mr. Augustine’s insurance coverage, the Hardys brought suit against State Farm, its own insurance company, under two different uninsured insurance policies. One policy was owned by Mr. Hardy and the other was owned by Mrs. Hardy. Each policy would pay up to $100,000 for each incident. State Farm paid $100,000 under the first policy, but refused to pay under the second policy citing the anti-stacking statute as a legal basis for denial of making a payout under both policies.

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