Articles Posted in Wrongful Death

Sitting en banc, the Louisiana Third Circuit Court of Appeal recently affirmed the highest general damage award to a minor child for the wrongful death of a parent in Louisiana. The jury awarded $2.5 million in general damages to the minor boy for the devastating loss of his non-custodial mother, with whom he had a close relationship. The Louisiana Third Circuit Court of Appeal approved the following separate elements of wrongful death general damages and explained how each was different from the other:

1) Past, present and future mental anguish, grief and anxiety
2) Past, present and future loss of love and affection
3) Past, present and future loss of society, services and consortium

Mental anguish and grief refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompany the injury. This includes the initial shock, anxiety, and distress that a minor child experiences as a result of the loss of a parent. Put another way, grief is the presence of an emotion as a result of a loved one’s death.

Loss of love and affection, on the other hand, goes beyond the initial grief and emotional trauma. These damages compensate the minor child for the enduring and irreversible loss of his parent. While grief and anguish will wane over time, the minor child will always feel the absence of the traditional characteristics of the parent-child relationship. Loss of love and affection is the absence of an experience; specifically, the absence of a love previously bestowed.

The factors for loss of consortium include loss of society and companionship, loss of support and family income, and loss of performance of material services, including educational and household help for children.

Rachel v. Brouillette, 12-794 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137, 1142-43, writ denied, 2013-0690 (La.5/3/13), 113 So.3d 217 (Affirming the jury’s general damage award of $1 million for past, present and future mental anguish, grief and anxiety; $1 million for past, present, and future loss of love and affection; and $500,000 for loss of society, services and consortium. An additional $300,000 award for loss of support was also affirmed.).

Prior to Rachel, $750,000 was the highest general damage award ever affirmed by a Louisiana court for the wrongful death of a minor child’s parent. See Raymond v. Gov’t Employees Ins. Co., 09-1327 (La.App. 3 Cir. 6/2/10), 40 So.3d 1179, writ denied, 10-1569 (La.10/8/10), 46 So.3d 1268.
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According to performance measures developed by the National Highway Transportation Safety Administration (NHTSA) and The Governor’s Highway Safety Association, 80 motorcyclists were killed in Louisiana accidents in 2011, 59 of whom were helmeted. On June 15, 2013, another fatal motorcycle accident occurred on Louisiana Highway 1065 in Tangipahoa Parish. A Tangipahoa Parish, Louisiana motorcyclist was killed when a an oncoming pickup truck allegedly made an illegal left turn into a private driveway on Louisiana Highway 1065 near its intersection with Louisiana Highway 442 in Tickfaw, Louisiana. The motorcycle crashed into the side of the pickup truck and, despite wearing a helmet, the rider was pronounced dead at the scene.
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Louisiana State Police investigated the ninth auto accident fatality of the year in Troop D yesterday in Beauregard Parish, Louisiana. According to the LSP news release, a truck driven by an unbelted DeRidder man crossed the center line of Louisiana Highway 26. An oncoming SUV took evasive action, but was unable to avoid a collision into the belted driver’s door. The truck flipped several times, ejecting the unbelted driver who was pronounced dead at the scene. The belted driver of the SUV sustained moderate injuries. According to the news release, eight of the nine auto fatalities in Troop D were of unbelted drivers.

Nationwide statistics show that for SUV, pickup, and van occupants, seat belts reduce the risk of fatal injury by 60%. And, while air bags can save lives of belted occupants, they can actually make injuries much worse for unbelted occupants. The Baton Rouge, Louisiana accident and injury lawyers at Dué, Guidry, Piedrahita & Andrews encourage everyone to buckle-up and to remember that most fatal crashes happen within 25 miles from home.
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La. R.S. 9:2794(A)(3) requires the Louisiana medical malpractice plaintiff to prove that as a “proximate result” of the defendant’s failure to use the required degree of care, “the plaintiff suffered injuries that would not otherwise have been incurred.” In a situation where the patient dies, the Louisiana Supreme Court has held that the plaintiff does not have to shoulder the “unreasonable burden” of proving that the patient would have lived had proper treatment been given. Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 721 (La.1986). Instead, the plaintiff must prove “only that there would have been a chance of survival,” and that the patient was denied this chance of survival because of the defendant’s negligence. Id. at 720. See also Smith v. State through Dept. of Health and Human Resources Admin., 523 So.2d 815, 822 (La.1988).

In Guy v. Brown, 2011-0099 (La.App. 4 Cir. 7/6/11), 67 So.3d 704, the Louisiana Fourth Circuit Court of Appeal held that a wrongful death claim arising out of medical malpractice must be brought within the three year peremptive period set forth in La. R.S. 9:5628. Therefore, if the death occurs three years after the alleged medical malpractice and no claim was previously and timely filed by the wrongful death beneficiaries, the claim is forever time barred.

Louisiana State Police Troop E investigated 2011’s forty-third fatal crash on August 8, 2011 in Natchitoches Parish, Louisiana. This crash occurred around 3:39 p.m. on Campti Bayou Road and claimed the life of a sixteen year old passenger of a Chevrolet truck that lost control at a high rate of speed, crossed the center line of the highway, overcorrected, and started spinning and then rolled over into the ditch. According to the LSP news release, the teenage driver will be charged with negligent homicide.

LSP further informs us that “traffic crashes are the leading cause of death for children over the age of four. While not all crashes are survivable, your best chance of surviving a serious crash is to properly wear a seat belt or to be correctly restrained in an age and size appropriate child seat.”

Baton Rouge, Louisiana car crash attorney, Scott Andrews, reminds all young drivers to be careful, stay alert, observe the posted speed limit, keep a look out, and always, always, always make sure all occupants are wearing a seat belt. Even a momentary inattentiveness can result in disastrous consequences and ruin the lives of all involved.
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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 Holden, Louisiana, woman died in a two car wreck on Louisiana Highway 447 south of I-12 in Livingston Parish, Louisiana, when her 1997 Chevrolet Cavalier crossed the center line of Louisiana Highway 447 just north of Louisiana Highway 16 after entering a right-hand curve. The Cavalier collided head-on with an oncoming 1987 GMC single-unit truck, pushing the Cavalier backwards and off the road into the ditch and causing it to roll over onto its roof.

According to Baton Rouge, Louisiana car wreck attorney, Scott Andrews, the driver of a vehicle that crosses the center line and collides with another vehicle in its proper lane of travel is presumed to be at fault in causing the accident.
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A 23 year old Louisiana man was killed on March 25, 2011 in Rapides Parish when he lost control of his Suzuki motorcycle on Robinson Bridge Road causing him to leave the highway and collide with several small trees. The motorcycle operator’s helmet was not strapped and came off during the crash.

This was the 14th accident related death in 2011 occurring in Louisiana Troop E.
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