Louisiana Injury Lawyer Blog

Evidence in the form of moving pictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject, they do not show rest periods, and do not reflect whether the subject is suffering pain during or after the activity. See Olivier v. LeJeune, 95-0053 (La.2/28/96), 668 So.2d 347, 351; and Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65, 68 (La. 1983).

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Commercial truck drivers are required to undergo testing and licensure which involve attending a special school designed to teach the mechanics and attendant hazards of operating large rigs. Based upon that premise, a professional truck driver is a superior actor in the eyes of the law. Thus, with superior knowledge and training as a professional truck driver, he is held to a high standard of care to the motoring public. See Davis v. Witt, 2002-3102 (La.7/2/03), 851 So.2d 1119, 1128-29.

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Our law seeks to fully repair injuries which arise from a legal wrong. However, an accident victim has a duty to exercise reasonable diligence and ordinary care to minimize his damages after the injury has been inflicted. He need not make extraordinary or impractical efforts, but he must undertake those which would be pursued by a man of ordinary prudence under the circumstances. Thus, his recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery. The expense and inconvenience of treatment are also proper considerations in determining the reasonableness of a person's refusal to submit to treatment. Moreover, an unreasonable refusal of medical treatment which does not aggravate his injury will not restrict a victim's recovery. The tortfeasor has the burden of showing both the unreasonableness of the victim's refusal of treatment and the consequent aggravation of the injury. See Jacobs v. N.O.P.S.I., 432 So.2d 843, 845-46 (La.1983).

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"[Comparative] negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances.... Failure to take every precaution against every foreseeable risk to use extraordinary skill, caution and foresight does not constitute negligence or [comparative] negligence... [The victim] is required only to use reasonable precautions, and [his] conduct in this regard is not negligence if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances." See Louisiana Civil Code articles 2323 and 2324; Dupas v. City of New Orleans, 354 So.2d 1311 (La. 1978), quoting Smolinski v. Taulli, 276 So.2d 286, 290 (La. 1973).

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In determining an award for loss of earnings and earning capacity, what the victim earned before and after the injury does not constitute the measure. While the victim's earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Damages should be estimated on the injured person's ability to earn, rather than what he actually earned before the injury. Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured person could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done to him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it previously. See Hobgood v. Aucoin, 574 So.2d 344, 346 (La.1990).

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"In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. *** Plaintiff is aided in [his] burden of proving causation by the presumption ... that '[a] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. In order to defeat the presumption, defendant must show some other particular incident could have caused the injury in question." See Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757, 759 & 761 (La.1995).

Continue reading "Louisiana Personal Injury Law: The Housley Presumption" »

A tortfeasor or negligent wrongdoer must take his victim as he finds him or her. The wrongdoer is responsible for all the natural and reasonable consequences of his wrong, even though they are made much more serious or harmful by reason of a pre-existing physical defect or weakness of the injured party. Differently stated, The duty of care and of abstaining from injuring another is due to the weak, the sick, the infirmed, equally with the healthy and the strong, and when that duty is violated the measure of damages is the injury inflicted, even though that injury might have been aggravated or might not have happened at all, but for the peculiar physical condition of the person injured. See Robnett v. Great American Ins. Co. of New York, 187 So.2d 152 (La.App. 2d Cir.), writ ref'd, 249 La. 470, 187 So.2d 445 (1966); Johnson v. Ceaser, 304 So.2d 855 (La.App. 4th Cir. 1974); and Taylor v. Rome, 303 So.2d 844 (La.App. 1st Cir. 1974).

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"Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it." Louisiana Civil Code article 2315.

Article 2315 is the foundation of Louisiana Tort Law. This Louisiana Civil Code article is so important that on the first day of of my Torts I class at the LSU Law Center, Professor Frank Maraist instructed our class that we would not pass the class without being able to write Article 2315 verbatim on the final exam.

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The Louisiana State Bar Association posted the following notice today regarding advertising legal services ethically in Louisiana in the wake of an accident or disaster.pdf:

"In an effort to assist our lawyers in their efforts to offer legal assistance to members of the public in the days, weeks and months that follow an accident or disaster, we would remind lawyers to review the Louisiana Rules of Professional Conduct and state law before attempting to advertise for and/or contact prospective clients in connection with the accident or disaster, paying particular attention to the items listed below.

"Additionally, as a benefit of LSBA membership, the Louisiana State Bar Association's Ethics Advisory Service and LSBA Ethics Counsel are available to provide FREE confidential, informal, non-binding advice and opinions on matters regarding a lawyer's own prospective conduct--including questions about proposed lawyer advertising and/or unsolicited written communications. Also, all advertisements and unsolicited written communications that must be filed and evaluated for compliance as per Rule 7.7 should be directed to LSBA Ethics Counsel; information on the filing requirements and filing process is available on-line, 24/7, at: www.LSBA.org/LawyerAdvertising. LSBA Ethics Counsel, Richard P. Lemmler, Jr., can be reached at direct dial (504) 619-0144 or RLemmler@LSBA.org."

After asking the East Baton Rouge Parish jury for $1.1 million, Louisiana Association for Justice President (LAJ) President Donald W. Price of the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews obtained a $2.1 million medical malpractice jury verdict on April 30, 2010. The East Baton Rouge Parish jury found a local pediatrician negligent for prescribing the wrong antibiotic to a Zachary, Louisiana child that caused Stevens-Johnson syndrome and led to the loss of 65% of her skin. The pediatrician told the patient's mother he was prescribing Omnicef for a sinus infection, but actually prescribed Septra DS, a sulfa antibiotic not approved for the treatment of sinus infections.

"It's not something that had ever happened to me before," Donald Price said of the jury awarding more than he requested. "We were gratified." Unfortunately, Louisiana's $500,000 medical malpractice cap will prevent recovery of the entire jury verdict.

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I am sure that you, like me, have been sickened over the last few days by the developing events at BP's Deepwater Horizon well site. What began as an inconceivable tragedy for the human victims has, amazingly, expanded further into an environmental catastrophe that threatens not only Louisiana, but the entire Gulf coast.

As lawyers, we realize that many people will be in need of legal services as a result of these events. But we should be careful to ensure that this disaster for our state is not compounded by a disaster for our profession.

The Louisiana Association for Justice (LAJ) fully supports the rights of the public to obtain information about legal services, and it supports the rights of lawyers to provide that information in a manner consistent with the Louisiana Rules of Professional Conduct. We should all do everything we can to make sure those rules are followed, for the good of the public and our profession.

Anyone who has direct knowledge of specific instances of unauthorized practice of law, runner-based solicitation, or improper direct contact by lawyers should report the conduct directly to the Louisiana Office of Disciplinary Counsel.

Louisiana will get through this latest challenge. It is my hope that, as was the case with Hurricanes Katrina and Rita, our membership will not be part of the problem, but will instead be helping to provide solutions.

Sincerely,

Donald W. Price
Due', Price, Guidry, Piedrahita & Andrews
LAJ President