Louisiana Injury Lawyer Blog

There is a one year prescriptive period for survival action claims in Louisiana. The right to recover survival action damages for injuries sustained by a deceased person prior to their death may be brought only by the following exclusive class of beneficiary (including by adoption):

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. However, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

(5) The deceased's succession representative in the absence of any of the above class of beneficiary.

There is a one year prescriptive period for wrongful death claims in Louisiana. If a person dies due to the fault of another, suit may be brought only by the following exclusive class of beneficiary (including by adoption) to recover wrongful death damages which they sustained as a result of the death:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. However, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

In any action (or claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability) for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss (including victim fault) shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032 (employer Worker's Compensation immunity), or that the other person's identity is not known or reasonably ascertainable (phantom tortfeasors).

If a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. If liability is not solidary then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the victim regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032 (employer Worker's Compensation immunity), or that the other person's identity is not known or reasonably ascertainable (phantom tortfeasors).

Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

Generally, no person shall be liable for damages for injury, death, or loss of the operator
of a motor vehicle, aircraft, watercraft, or vessel who is found to be in excess of 25% negligent as a contributing factor in causing his damages as a result of operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration was 0.08, or who was operating while he was under the influence of any controlled dangerous substance unless prescribed or provided by a health care provider.

As recognized by the Louisiana Supreme Court in Dumas v. State, DCRT, 2002-0563 (La. 10/15/02), 828 So.2d 530, 537, prior to the 1996 tort reform amendments to La. C.C. arts. 2323 and 2324(B), the policy behind Louisiana's tort law was ensuring that innocent victims received full compensation for their injuries. With the 1996 amendments, the Louisiana Legislature shifted Louisiana's policy so that each tortfeasor pays only for that portion of the damage he has caused and the tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of that other person. With the advent of this new policy, the right of contribution among solidary tortfeasors also disappeared since it is no longer necessary in light of the abolishment of solidarity. The Louisiana Legislature struck a new balance in favor of known, present and solvent tortfeasors instead of the previous priority that fully compensated injured victims.

The Louisiana Supreme Court, in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985), adopted the following factors (now known as the Watson factors) for determining the percentages of fault to be assigned to culpable tortfeasors, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger;

(2) how great a risk was created by the conduct;

(3) the significance of what was sought by the conduct;

(4) the capacities of the actor, whether superior or inferior; and

(5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

And, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Establishing negligence under Louisiana law is accomplished via the following five prong duty / risk analysis:

I. Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause in fact of the harm?

-It is irrelevant in determining cause in fact whether the defendant's actions were lawful, unlawful, intentional, unintentional, negligent, or non-negligent. The inquiry is a neutral one, free of the entanglements of policy considerations - morality, culpability or responsibility-involved in the duty-risk analysis. Ask whether the defendant's conduct was a necessary antecedent of the accident, that is, but for the defendant's conduct, the incident probably would not have occurred.

-Is there a factual causal relationship between the defendant's actions and the plaintiff's injuries? Did defendant's actions have something to do with the injury the plaintiff sustained? Did the defendant's conduct appreciably enhance the chance of the accident occurring?

-Generally, cause in fact entails a "but for" inquiry: If the plaintiff probably would have not sustained the injuries but for the defendant's conduct, such conduct is a cause in fact. But, when multiple causes are present, cause in fact is found to exist when the defendant's conduct was a substantial factor in bringing about the plaintiff's harm.

II. Did the defendant owe a duty to the plaintiff?

-Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law - statutory or jurisprudential - to support his or her claim?

III. Was the duty breached?

-Did the defendant fail to conform to the legally imposed duty?

IV. Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

-Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. The scope of protection inquiry asks whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Although, the determination of legal cause involves a purely legal question, this legal determination depends on factual determinations of foreseeability and ease of association. The extent of protection owed by a defendant to a plaintiff is made on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms.

-Substandard conduct does not render the actor liable for all consequences spiraling outward until the end of time. Ask whether too much else intervened - time, space, people, and bizarreness?

-Ease of association: in determining whether there is a duty-risk relationship, the inquiry is how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced, or how easily does one associate the plaintiff's complained of harm with the defendant's conduct, or how easily the risk of harm can be associated with the rule which was breached. Is the purpose of the duty substantially related to the risk of harm?

-Although ease of ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone. Ease of association melds policy and foreseeability into one inquiry: Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant?

-Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs and such relation must be substantial in character.

-Because legal cause analysis is so fact bound, other legal cause cases serve only as examples of the methodology and can only be analogized from when the facts bear a striking resemblance to the case to be decided.

V. Damages.

-Was the defendant's culpable conduct a cause of the plaintiff's harm?

Continue reading "Louisiana's Negligence Duty / Risk Analysis in a Nutshell" »

For the sixth straight year, Baton Rouge, Louisiana personal injury lawyer, Paul H. Due' of Due', Price, Guidry, Piedrahita & Andrews has been rated by Louisiana Super Lawyers. "Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Super Lawyers magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country. Super Lawyers magazine is published in all 50 states and Washington, D.C., reaching more than 13 million readers."

Baton Rouge, Louisiana personal injury lawyer Donald W. Price has been rated by Louisiana Super Lawyers 2012 in the practice area of Personal Injury Plaintiff. Donald Price has been rated by Louisiana Super Lawyers every year since its inception in 2007. "Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations."

Baton Rouge, Louisiana personal injury lawyer, B. Scott Andrews, of Due', Price, Guidry, Piedrahita & Andrews has been recognized by Louisiana Super Lawyers 2012 in the practice area of Personal Injury-Plaintiff. "Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations."

Donald W. Price of the Baton Rouge, Louisiana personal injury and medical malpractice law firm of Dué, Price, Guidry, Piedrahita & Andrews has been selected for inclusion in Best Lawyers in America for 2012. Price has been recognized in two categories: Personal Injury Litigation and Medical Malpractice Litigation. Price was also selected by Best Lawyers as the Medical Malpractice 2012 Lawyer of the Year for Baton Rouge, Louisiana.

In Marcus v. Hanover Ins. Co., Inc., 740 So.2d 603 (La.1999), the Louisiana Supreme Court held that a "business use exclusion" in a personal automobile liability policy which excludes coverage for damages resulting from the operation of "your insured car, in any business other than an auto business," is against public policy and is unenforceable because it contravenes Louisiana's compulsory liability insurance law and the public policy of Louisiana, which is to provide compensation to injured third parties. Because there was previously a split in the law on this issue, the Supreme Court further held that because the insurer issuing the policy with the unenforceable exclusion, "had no intent to thwart such law and the public policy behind it," that the policy would be construed to provide the statutorily required minimum limits of coverage, rather than the higher limits of coverage otherwise provided by the policy.

Based on the rationale of the Supreme Court, insurers maintaining policies after the Marcus decision with an unenforceable "business use exclusion" that excludes coverage for "your insured car" should be presumed to intend to thwart the compulsory liability insurance law of Louisiana and the public policy behind it, and the actual policy limits should apply to any covered loss under the policy.

After teaching Product Liability during the Spring 2011 semester at the Southern University Law Center (SULC), Baton Rouge, Louisiana personal injury and accident attorney, Scott Andrews, will be teaching Insurance Law at the Southern University Law Center during the Fall 2011 semester.

Scott Andrews is a 1996 Order of the Coif honors graduate of the LSU Paul M. Hebert Law Center, where he served on the Louisiana Law Review.

In Brooks. v. State of Louisiana, Department of Transportation and Development, 2010-1908 (La.7/1/11), the Louisiana Supreme Court held that the scope of duty of the Louisiana Department of Transportation and Development (DOTD) to maintain the shoulder of a Louisiana state highway does not encompass the risk that a driver of an inherently unstable and top-heavy backhoe not authorized for highway use will drive on the shoulder and attempt a sharp turn into a driveway at a relatively high rate of speed, hit a 2-4 inch depression in the asphalt that would have not caused any problem for a vehicle, tip over, and be crushed by the backhoe. DOTD's duty was summarized by the Supreme Court as follows:

DOTD's duty is to maintain the 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 reasonable prudence. This duty extends to the shoulders of highways as well. DOTD's duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Nonetheless, DOTD is not a guarantor of the safety of all the motoring public under every circumstance. Nor is DOTD the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway. Id. In other words, we will not impose liability for every imperfection or irregularity, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Whether the DOTD breached its duty, that is, whether the shoulder was in an unreasonably dangerous condition, is a question of fact and will depend on the facts and circumstances of each case. If the shoulder did not present an unreasonable risk of harm then DOTD, by definition, did not owe a duty to [the plaintiff] and cannot be held liable for the damages he sustained. As a question of fact, we will review the jury's determination that the shoulder presented an unreasonable risk of harm under the manifest error standard. Under the manifest error standard, an appellate court may not disturb a jury's finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. This Court has described the unreasonable risk of harm criterion as a guide in balancing the likelihood and magnitude of harm against the social utility of the thing, all the while considering a broad range of social and economic factors, including the cost to the defendant of avoiding the harm, as well as the risk and social utility of the party's conduct at the time of the accident. In every determination, all the circumstances surrounding the particular accident under review must be considered to determine whether DOTD's legal duty encompassed the risk which caused the plaintiff's damages.

A husband and wife were killed in St. Tammany Parish, Louisiana, after being rear- ended by an 18-wheeler. The couple was traveling in the right lane when the 18-wheeler changed lanes and rear ended them. The collision caused the couple's vehicle to rotate and leave the roadway and impact trees. The collision and subsequent impact were fatal to the couple. The driver of the big rig is believed to have been distracted and was arrested on two counts of negligent homicide and careless operation.

Driver distraction is quickly becoming a rising cause of fatal accidents in the United States. In 2009, according to the National Highway Traffic Safety Administration, as many as 5,474 people were killed in car wrecks where at least one driver was distracted. According to data collected from the Fatality Accident Reporting System (FARS), traffic deaths caused by distracted drivers rose from 11% in 1999 to 16% in 2008.

Continue reading "Driver Distraction Cited in Louisiana 18 Wheeler Accident" »