“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.”
Law 360 interviewed Baton Rouge Maritime attorney, Kirk A. Guidry, of the Baton Rouge injury law firm of Dué Guidry Piedrahita Andrews Courrege L.C.. The article written by Jesse Greenspan appeared on April 23, 2010, and is entitled Much Litigation Expected After Oil Rig Explosion. Kirk Guidry told Law 360 that any personal injury or wrongful death cases would likely be brought under the Jones Act and would therefore not be removable to federal court. Kirk Guidry also stated that the first big issue that would have to be resolved is the limitation of liability issue, which will be argued in Federal Court.
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In Quinn v. State of Louisiana, DOTD, 2009-0085 (La.App. 1 Cir. 12/23/09), writ denied, 2010-358 (La.4/23/10), the Louisiana First Circuit Court of Appeal, in an opinion not designated for publication, held that once the Louisiana Department of Transportation and Development (DOTD) chooses to exercise the privilege set forth in 23 U.S.C. §409, that protects from discovery any reports, surveys, schedules, lists or data compiled or collected for the purpose of identifying, evaluating or planning the safety enhancement of potential accident sites and hazardous roadway conditions, and which prevents the plaintiff from discovering any evidence of prior accidents at a location involving an alleged highway defect, that it follows that DOTD is then precluded from offering any evidence establishing an absence of other accidents at the same location at trial.
According to Baton Rouge, Louisiana highway defect attorney Scott Andrews, this is a major development in the law relating to road hazards and finally levels the playing field. In order to impose liability on DOTD for Louisiana’s defective highways and roads, the accident victim must prove that DOTD had actual or constructive notice of the defective condition. For years, DOTD has consistently argued that the lack of prior accidents at certain locations proved that the highways and roads at the locations did not contain defects. Yet, the accident victims and their attorneys are prohibited from discovering and introducing at trial, evidence of prior accidents. DOTD cannot have its cake and eat it too. If plaintiffs cannot discover and use the evidence of prior accidents, then DOTD should not be able to use evidence of the lack of prior accidents to prove no defect, all the while preventing plaintiffs from verifying the accuracy of DOTD’s representation that no accidents occurred.
This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Dué Guidry Piedrahita Andrews Courrege L.C..
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The Deepwater Horizon oil platform sank into the Gulf of Mexico yesterday after burning out of control following an explosion. Eleven workers are still missing and are not expected to be found alive. At least one lawsuit has already been filed against the rig’s owner, Transocean, Ltd., and contractor, BP. In addition to the devastating loss of life that is expected to result from this preventable explosion, extreme environmental damage is also expected since the oil platform carried 700,000 gallons of diesel fuel and could spill as much as 8,000 barrels of crude oil a day.
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At least four oil rig workers were critically injured, and eleven oil rig workers are missing following an explosion and fire on the mobile offshore drilling rig, Deepwater Horizon. The rig was in the Gulf of Mexico around 50 miles southeast of Venice, Louisiana when the explosion and fire occurred on Tuesday, April 20, 2010, around 10 p.m. It is reported that the drilling rig is leaning badly and may become submerged. The drilling rig is believed to be owned by Transocean and is believed to be operated for BP. A hotline has been set up for family members to obtain information–call 832-587-8554.
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Louisiana State Police Traffic Accident Crash Reports are now available online at the Louisiana State Police website. According to the LSP website, “you can easily find official reports for crashes that have occurred in every Parish across the state. Once you have found your report, you can see a limited preview and then purchase that report to see the entire document. After completing purchase of a report, you will be able to instantly download a permanent PDF copy of the complete report.” In order to search for an accident report, the user must enter the first and last name of the driver or pedestrian involved in the accident, the parish where the accident occurred, and the date of the accident. A log-in must be created to finalize the $11.50 credit card transaction.
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In Torres v. Louisiana Shrimp and Packaging Company, 09-2792 (La.4/9/10), the Louisiana Supreme Court reversed the lower courts’ ruling granting defendant’s exception of prescription, because a timely filed tort suit interrupts the running of prescription on a workers’ compensation claim, and because once a party withdraws a plea of prescription, or renounces prescription, he may not re-urge the plea:
“WRIT GRANTED. It is not disputed by the parties that a timely filed tort suit interrupts the running of prescription on a workers’ compensation claim. Isaac v. Lathan, 01-2639, pp. 4-6 (La.App. 1 Cir. 11/8/02), 836 So.2d 191, 194-95. In this case, the tort suit filed by the relator against the respondent was dismissed by judgment of the trial court after the withdrawal of the respondent’s prescription exception. When a party withdraws a plea of prescription in the trial court, he thereby renounces the prescription originally pleaded and, having thus abandoned it, may not thereafter re-urge it. Foster v. Breaux, 263 La. 1112, 270 So.2d 526, 529 (1972). Accordingly, the timely tort suit interrupted the running of the prescriptive period for filing relator’s workers’ compensation claim. Moreover, having abandoned the prescription objection to the timeliness of the tort suit, respondent may not now reurge it. Therefore, the ruling by the trial court granting respondent’s exception of prescription, and the court of appeal decision affirming the ruling, are reversed. The case is remanded to the office of workers’ compensation for further proceedings consistent with the views expressed herein.”
This Louisiana legal update is brought to you by the Baton Rouge, Louisiana injury lawyers at Dué Guidry Piedrahita Andrews Courrege L.C..
On March 19, 2010, an Iowa jury returned a $32.8 million verdict in favor of Ivon Toe, Assata Karlar and five passengers in a 1997 Chrysler minivan that rolled over after sustaining a tire tread separation on the rear mounted Cooper Tire. Ivon Toe was rendered quadriplegic and Assata Karla suffered a wrongful death. Part of the jury verdict included punitive damages assessed against Cooper Tire. The plaintiffs’ attorneys relied on Cooper Tire’s delay for years in making needed changes to its tires despite Cooper Tire documents wherein Cooper Tire executives discussed tire failure rates and the cost of remediation. Cooper Tire claims its tires, including the tire involved in the Toe case, “are safe and reliable, exceeding not only all government standards but also our own, more rigorous, internal standards.” Cooper Tire says it will appeal the jury’s verdict. The case is Toe v. Cooper Tire and Rubber, CL 10694, Iowa District Court, Polk County (Des Moines).
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The Louisiana Supreme Court issued the following Per Curiam opinion in Williamson v. Hebert, 10-0071 (La. 4/5/10), regarding the interruption of prescription in a medical malpractice case based on the discovery rule:
“In Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502, 511, we explained ‘a plaintiff’s mere apprehension that something may be wrong is insufficient to commence the running of prescription, unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice.’ Plaintiff in the instant case clearly had some apprehension something was wrong following her surgery, as she consulted two different doctors regarding her condition. However, both of these doctors assured plaintiff her condition would continue to improve, with one of the doctors indicating her symptoms might take two years to resolve. When plaintiff’s symptoms failed to improve by August 2002 (two years after the August 3, 2000 surgery), plaintiff performed computer research, and learned for the first time her symptoms may have been caused by malpractice. Plaintiff’s August 16, 2002 complaint was filed within one year of her discovery of this alleged malpractice.”
The Louisiana Supreme Court granted plaintiff’s writ and reversed the decision of the Louisiana Third Circuit Court of Appeal. The judgment of the district court denying the defendant’s exception of prescription was reinstated and the case remanded to the district court for further proceedings. This is a huge victory for victims of medical malpractice who prudently wait to see if their condition will improve before rushing to file a medical malpractice claim that might otherwise be frivolous.
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Louisiana Injury Lawyer Blog