Louisiana Personal Injury Lawyer Blog

June 6, 2010

Previous Injury and the Eggshell Plaintiff Rule

Accidents happen and when they do people wonder just how much can be considered when calculating damages. Many wonder “what happens when someone who is already injured is in an accident?” What’s more, if someone already had a bad knee, for example, can the defendant be held responsible for further damage to that knee. The Eggshell Plaintiff Rule helps explain the aggravation of existing injuries.

In a 2000 case, the Louisiana Supreme Court set out the Eggshell Plaintiff Rule but still reversed the Court of Appeal’ finding of damages because the trial court’s decision of no aggravation of injuries did not meet the high manifest error standard.

In April 1996 Mary Touchard drove a friend to Carnecro to pay her electric bill. While leaving the parking lot of the power company, Touchard’s car was hit from behind by a pickup truck driven by Ted Breaux. Ms. Touchard did not have the ambulance called and complained of a headache at the scene while Breaux claimed he was not entirely at fault for the accident and that vehicular impact was minimal. Ms. Touchard sued Breaux and his insurance company, however, claiming she suffered mental and physical injuries in the accident.

June 5, 2010

Contract Indemnity Provision Voided Under Louisiana Oilfield Anti-Indemnity Act: Legislative Intent Irrelevant When a Statute is Clear

by Berniard Law Firm

Samuel Silverman Jr. was injured while working for BJ Services Company, a contractor for Bass Enterprises Production Company, hired to provide services on an oil well in Cado Parish. The injury was to Silverman’s knee and occurred because a hoist operator employed by another contractor at the site, Mike Rogers’ Drilling Company, dropped a cement head and pinned his knee against a derrick.

Silverman sued Rogers’ Drilling, alleging that the negligence of their employee (the hoist operator), caused the accident. Rogers’ Drilling tried to get around liability by filing a third-party demand against Bass under a provision in the contract between Rogers’ and Bass wherein Bass, as operator, agreed to indemnify Rogers, as contractor.

According to the provision, indemnification included a release of any liability and agreement to protect, defend, and indemnify against all claims, demands, and causes of any kind without regard to negligence of any party. Can such a strong indemnity clause be upheld under Louisiana law and the Louisiana Oilfield Anti-indemnity Act (LOAIA)? The trial court found the provision to be against the LOAIA and thus null and void, and in a decision this summer, the Louisiana Court of Appeals agreed.

June 3, 2010

How the Law Approaches Medical Malpractice in Pregnancies

by Berniard Law Firm

More than 98,000 people are killed each year as a result of medical errors. The rights of the deceased are protected in court through what is called a survival action, which allows the relatives to file a claim in place of the deceased for conscious pain and suffering, damage to person/property, and medical expenses. Survival actions are commonplace where a doctor’s negligence caused someone’s death. In order to succeed on a medical malpractice claim, it must be shown that the medical personnel was negligent in causing the harm in each instance.

The law was unsettled, however, on whether parents could bring a survival action for an unborn/stillborn child. It is often a grey area as to the issue of whether a still born child has any rights under a survival action.

A 2010 Louisiana Court of Appeals case addressed this very issue:

June 2, 2010

Elected Officials Recognize the Dangers of Distracted Driving

by Berniard Law Firm

Distracted driving is a huge problem in Louisiana. In fact, according to a study of the Louisiana Highway Safety Commission, at any given time, at least one of every eleven cars on the road is driven by someone using a cell phone. The Study was commissioned by the legislature in an effort to help policy makers understand how dangerous mixing cell phones and driving truly is. Specifically, a survey of street corner observers noted that on average 9.2 percent of drivers were using hand-held phones at any given time, slightly more than the national average. A summary of the complete results of the study can be found here.

Distracted driving leads to traffic accidents and facilities, and according to other studies, distracted drivers are at increased risk of crashing. However, despite a threefold increase in cell phone use in the last decade, crash trend data in Louisiana and nationwide has decreased overall. This does not mean that using a cell phone while driving is not a distraction or that distracted driving is not incredibly risky. Rather, some questions exist over how much the distraction contributes to a crash. Drivers tend to slow down when talking on the phone, which may be the reason crashes overall have not increased. The reality is that the risk posed by driver phone calls is difficult to measure, particularly distinguishing between handheld and hands-free phone calls.

Many different solutions have been proposed to deal with the distracted driving problem. For example, a Baton Rouge firm is selling a new device that actually restrict cell phone calls and messaging when the user’s vehicle is moving. State and federal legislators have proposed changes as well.

June 1, 2010

Medical Malpractice Claims Must Be Handled With Care

by Berniard Law Firm

Almost every person who is admitted at a hospital has had to deal with a nurse at some point. Nurses, like doctors, are responsible for providing medical care to patients and can be subject to liability if they deliver treatment that falls below the standard set forth by the law of proper care. A 2010 case centering around the Willis Knighton Medical Center in Bossier City, Louisiana, discusses the standards required of a nurse.

Mr. Reilly was admitted to the ER with multiple pelvic fractures after a horse had fallen on top of him at Louisiana Downs. After surgery, doctors inserted a catheter to alleviate bladder pressure. Reilly was cared for by several nurses in the following months who removed and reinserted additional catheters. Reilly alleged that on numerous occasions, the nurses were negligent in the removal and insertion process, leaving him impotent and in need of additional surgery to correct the damage that he had suffered from this process.

To file a medical malpractice claim against a nurse or doctor, you must establish the:

May 31, 2010

Louisiana Roads in Bad Shape: Poor Roads Lead to More Accidents

by Berniard Law Firm

According to a recent study published by the Road Information Program (a nonprofit group that evaluates highway data), Louisiana has the second highest auto fatality rate in the nation. In 2008, Louisiana had 2.02 deaths for every 100 million miles traveled. Montana was the one state with more deaths, at 2.12 per 100 million miles. As noted in a recent editorial in the Louisiana Times-Picayune, “That translates into 4,782 people who lost their lives on Louisiana’s roadways from 2005 to 2008.”

Researchers found that many factors lead to the higher percentage of deaths, including poor road conditions. In fact, according to the study, 44 percent of major state and local roads are in “poor or mediocre” condition. Additionally, 13 percent of Louisiana’s bridges are structurally deficient and 16 percent don’t meet current design standards. Poor roads are those considered to have deficient lane width and lighting and lack barriers and paved shoulders. The study found that these factors played a role in as many as a third of the fatal or serious accidents.

While road conditions in Louisiana are bad, the state is working towards improvements and recently used $1.2 billion in state surplus money and $500 million in federal stimulus money to renovate highways and bridges. The article notes “safety projects such as the post and cable barriers on Interstate 12 in St. Tammany Parish and on Interstate 10 in St. James are examples of smart, life saving measures.”

May 30, 2010

Vernon Parish Car Wreck Leads Court to Explore the Duty of Police to Secure Scene of an Accident

by Berniard Law Firm

Under Louisiana law, police officers, troopers, and sheriff’s deputies have a duty to take reasonable steps to protect the general public from dangerous situations on the road. This responsibility commonly includes removing foreign objects from the roadway or securing car accident scenes to ensure no further collisions occur. In general, an officer is charged with responding to any hazardous traffic condition to reduce the risk of accidents and injuries.

The case of Johnson v. Larson, 441 So. 2d 5 (La. Ct. App., 3rd Cir. 1983) presented a situation which tested the bounds of an officer’s duty. Shortly before midnight on June 27, 1978, Johnny Johnson was driving his car west on La. Hwy. 10 in Vernon Parish. He happened to come upon his friend, Tannie Rhodes, whose car was experiencing transmission trouble. Rhodes pulled her vehicle onto the shoulder, completely clear of the travel lane. She left the headlights on and activated her car’s hazard flashers. Johnson passed Rhodes, turned his car around, and parked on the shoulder directly facing Rhodes’s vehicle. Johnson left his headlights on so he could see under the hood of Rhodes’s car. Several minutes later, two Vernon Parish sheriff’s deputies arrived at the scene and asked if Johnson and Rhodes were “having trouble.” Rhodes answered yes, but no other words were exchanged. The deputies remained at the scene for a few minutes and, after receiving no request for help from either Johnson or Rhodes, they left. Soon after the deputies departed, a car heading west on Hwy. 10 driven by Matthew Larson, a soldier stationed at Fort Polk, swerved onto the shoulder of the road and collided with the rear of Rhodes’s car. The impact forced the two parked cars together. Johnson happened to be standing between the parked cars at the time and sustained severe injuries to his legs as a result of the impact.

Following the incident, Johnson reached a settlement with Larson. He then brought suit against the deputies and Vernon Parish Sheriff’s Department alleging the deputies’ negligence in failing to take precautionary steps that could have prevented the collision by Larson’s vehicle. At trial, after the close of the plaintiff’s evidence, the judge granted the deputies’ motion for dismissal finding that the officers were not negligent in their actions as they owed no duty to secure the scene under the circumstances. From this judgment, Johnson appealed.

May 29, 2010

Iberville Parish Car Crash Explores Doctrine of Sudden Emergency

by Berniard Law Firm

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).

May 28, 2010

Bridge Accident Case Shows Value of Litigation Discovery for Plaintiff

by Berniard Law Firm

The issue of whether a defendant breached a duty of care owed to the plaintiff in a negligence case is settled by examining the events that occurred in connection with the accident. Unfortunately for many plaintiffs, specific details about the defendant’s conduct may not be readily available and, absent some legally enforceable demand, a defendant is unlikely to volunteer any self-incriminating information that may help the plaintiff build his negligence case.

Louisiana civil procedure provides an avenue for a plaintiff to obtain needed information about the defendant’s conduct through “discovery” in litigation. Discovery is the phase of a law suit during which the parties can request information from each other, usually in the form of interrogatories (written questions) and requests for documents. The parties can also schedule depositions where witnesses are interviewed. Although there are some exceptions to the types of materials that must be exchanged through discovery, the intent is to level the playing field with respect to information about the case so that the parties can adequately prepare for trial.

The case of Simoneaux v. State of Louisiana Department of Highways, 106 So. 2d 742 (La. App. 1st Cir. 1958), illustrates the essential role that evidence obtained through discovery can play for the plaintiff in a negligence case. On the evening of August 25, 1955, Clement J. Simoneaux was driving in his car with his wife and her friend on La. Hwy. 1 in Plaquemine, Iberville Parish. At the point where Hwy. 1 crosses the Bayou Plaquemine, there was a lift span bridge–a drawbridge in which the center section would lift vertically, as one piece, to permit boats to pass below. On the evening in question, the lift span, after being raised for a passing boat, was returned to its original position. However, at the south end of the opening, the span did not seat itself fully. Instead, the end of the span stopped some distance above the level of the roadway.

May 27, 2010

Two Interstate Accidents Cause Fatalities in St. John Baptist, Tangipahoa Parishes

by Berniard Law Firm

Two tragic interstate car accidents during the weekend of April 9 through the 11th took three lives along Interstates 10 and 55 in two Louisiana Parishes. An Illinois man passed away on Interstate 10 in St. John Baptist Parish after his SUV was struck by a speeding car on Friday, April 9, according to authorities.

The accident happened around 10 p.m. when Aeham Hama, 22, of Gretna, LA, was driving his Crown Victoria over the speed limit. The collision came as a result of Hama switching into the eastbound left lane behind a Ford Explorer driven by Joel Redenius, 39, of Rockford, Ill., according to a Louisiana State Police news release.

Hama rear-ended Redenius, and Redenius’ vehicle rolled several times before falling off the elevated highway into a wooded area. Redenius was pronounced dead at the scene. Hama was taken to Ochsner Hospital in Kenner, LA with moderate injuries. State police believe speed was a factor in the crash and expect to bring charges against Hama. As of April 10, toxicology reports were pending.