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Louisiana State Troopers have investigated 4 fatal ATV crashes in Troop A in the past year. The most recent occurred on June 2, 2010, when a young man riding a Yamaha ATV on the Mississippi River Levee around Geismar, Louisiana, entered Louisiana Highway 75 and hit the driver’s side of a 2003 Ford Expedition traveling in the opposite direction. The young man, who was not wearing a helmet at the time of the accident, later died at Our Lady of the Lake Regional Medical Center from his accident related injuries.

According to a Louisiana State Police press release regarding this accident, “Troopers would like to stress the importance of wearing proper safety equipment while riding ATV’s. In addition, it is very important that ATV operators are properly trained, comfortable, and on the appropriate size ATV before riding alone. Taking the necessary precautions could mean the difference between life and death.”
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Louisiana State Troopers have investigated 29 fatal crashes involving 34 deaths in Troop E this year. The most recent claimed the life of Center Point, Louisiana woman, when she lost control of her Chevrolet truck and left Spring Bayou Road in Avoyelles Parish, Louisiana and struck a tree. She was not wearing her seat belt.
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On the evening of March 31, 2010, a distracted Louisiana truck driver allegedly caused a nine vehicle accident on Interstate 57 in Illinois, when the 18 wheeler he was operating rear-ended a vehicle in a construction zone. The Louisiana truck driver was allegedly looking down at a map when he encountered the slow moving traffic. Three people were killed when their SUV caught on fire. Thirteen people were hospitalized.

According to the United State Department of Transportation, there are three primary types of distracted driving: 1) visual or taking your eyes off the road; 2) manual or taking you hands of the wheel; and 3) cognitive or taking your mind off what you are doing. Examples of activities that distract drivers include texting, grooming, talking to passengers, eating and drinking, reading (including maps), watching electronic devices, using a cell phone and changing the radio station or other music player.
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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).
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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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