Broussard, David & Moroux, Author at Louisiana Lawyer Blog

From Contributory Negligence to Comparative Fault: A Remedy for Negligent Plaintiffs in Louisiana

September 26, 2014 | by Broussard, David & Moroux

Picture this unlikely scenario: An intoxicated motorist is driving his vehicle at speeds well in excess of the speed limit (let’s say, he’s traveling at 100 mph in a 35 mph zone). As the unsafe motorist approaches a downtown intersection, a jay-walking pedestrian begins to cross the street when it is clearly not her turn (the brilliant-orange “don’t walk” hand is flashing and unmistakable). She has her face buried in the daily newspaper and is wearing headphones, unaware of what’s happening around her. What happens next, as you might have expected, is that the speeding, drunken motorist collides with the inattentive pedestrian, causing her significant injuries and tens of thousands of dollars in hospital bills.

This hypothetical accident was intended to illustrate the legal problem of the “foolhardy” plaintiff–the individual who suffers an injury at the hands of another, though her inattentive, negligent behavior also has contributed to the damage. In layman’s terms, both the motorist and the pedestrian are at fault here. The driver should understand that operating a vehicle at high rates of speed while intoxicated is unsafe and endangers the public. Similarly, the pedestrian should know that she must obey traffic signals and should pay attention to her surroundings as she crosses the street. Thus, both the motorist and the pedestrian have a “duty” to act as a reasonably responsible driver and pedestrian respectively. Under this scenario, however, where both actors to this dramatic collision have breached their duties to act reasonably, causing this accident, who is responsible? Is the pedestrian permitted to recover damages (money) despite having negligently contributed to this accident and her resulting injuries?

Prior to 1980, Louisiana followed the traditional common-law approach to solving the issue of the “foolhardy plaintiff”–a plaintiff whose negligence contributed to his injury. This common-law approach was known as contributory negligence and operated as a total bar to recovery in a negligence action. While it sounds unduly restrictive of a plaintiffs’ ability to bring and maintain actions for injuries they suffered, this comparative negligence regime required more than just showing that the plaintiff contributed in some way to the injury–instead, the plaintiff had to be legally negligent. They must have had a standard of care (a duty), which, when breached, caused and contributed to their injury and was within the scope of foreseeable risk.

BP’s “Gross Negligence” Under the Clean Water Act: A Deeper Look

September 19, 2014 | by Broussard, David & Moroux

Almost two weeks have passed since Judge Carl Barbier handed down his blistering opinion apportioning a majority of the fault to BP for the 2010 Gulf oil spill. As a follow-up to last week’s article, which detailed Judge Barbier’s ruling, we aim to dig deeper: Judge Barbier found that BP’s “gross” negligence opens them up to enhanced civil penalties under the Clean Water Act (CWA). But what does this mean for BP? Was this the right result?

The Ruling

The thrust of Judge Barbier’s opinion was to apportion fault, or responsibility, for the harrowing 87-day oil spill which followed Deepwater Horizon’s explosion. As we noted in last week’s article, Judge Barbier found BP 67 percent at fault for the spill and reserved only 30 percent and 3 percent for Transocean and Halliburton, respectively. Importantly, and the subject of this week’s in-depth look at his ruling, Judge Barbier found that BP’s “gross negligence” and “willful misconduct” opens them up to enhanced civil penalties under the Clean Water Act. Under the CWA, where a “person” causes a hazardous oil spill in navigable waters of the United States, and where this spill is the “result of gross negligence or willful misconduct… the person shall be subject to a civil penalty of not less than $100,000, and not more than $3,000 per barrel of oil or unit of reportable quantity of hazardous substance discharged.” 33 U.S.C. §1321(b)(7)(D). As Judge Barbier notes, this enhanced penalty provision does not require any “specific level of corporate management,” but instead opens up enhanced penalties to entities who violate this provision of the Clean Water Act whether it’s the result of systemic, gross negligence or not.

Federal Judge Finds BP “Grossly Negligent,” Allocates Majority of Fault for 2010 Oil Spill to BP

September 12, 2014 | by Broussard, David & Moroux

In a recent ruling handed down in Federal District Court in New Orleans, Federal District Judge Carl Barbier assigned the majority of the responsibility to BP for the 2010 explosion of Deepwater Horizon. Judge Barbier found the discharge of oil to be the result of BP’s “gross negligence” and “willful misconduct” under the Clean Water Act, which subjects BP to enhanced civil penalties. The ruling found BP responsible for 67 percent of the blowout, explosion, and subsequent oil spill, while the remaining percentage was divided among Transocean and Halliburton at 30 percent and 3 percent, respectively.

“BP’s conduct was reckless. Transocean’s conduct was negligent. Halliburton’s conduct was negligent,” wrote District Judge Barbier in his 153-page ruling.

While it has been estimated that BP could face fines of up to $18 billion, the Judge’s ruling noted that BP cannot be held liable for additional punitive damages under general maritime law. Usually, general maritime law which permits the imposition of punitive damages for reckless, willful, and wanton conduct. However, due to a unique jurisdictional rule in Louisiana, Texas, and Mississippi, the imposition of punitive damages under general maritime law has been severely limited, though not entirely abandoned. Indeed, punitive damages are still available for reckless, wanton conduct in the Fifth Circuit, though, the bar is much higher. In addition to proving the defendant’s “reckless, willful, and wanton conduct,” an award of punitive damages must also demonstrate systemic recklessness. “The maritime rule in the Fifth Circuit is generally insufficient to visit punitive damages upon the employer. Rather, the conduct must emanate from corporate policy or that a corporate official with policy-making authority participated in, approved of, or subsequently ratified the egregious conduct,” the ruling states. In the absence of such a corporate policy, Judge Barbier found that BP cannot be held liable for punitive damages under general maritime law. BP plans to appeal the decision.

LSBA Installs Local Lawyer to 2014-15 Board of Governors

August 4, 2014 | by Broussard, David & Moroux

The Louisiana State Bar Association’s (LSBA) 2014-15 officers and members of the Board of Governors were installed June 5, in conjunction with the LSBA’s Annual Meeting in Destin, Fla.

Lafayette lawyer, Blake R. David, was installed by Louisiana Supreme Court Chief Justice Bernette Johnson as the Third District Member of LSBA’s Board of Governors. The Board of Governors is comprised of 22 volunteer leaders who are charged with fiscal responsibility for the LSBA and with administration of the affairs of the Association. The LSBA assists more than 22,000 members in the practice of law.

Blake R. David was raised in Lafayette and is a founding partner of Broussard, David & Moroux. Mr. David focuses on personal injury and wrongful death litigation with an emphasis on offshore/maritime, trucking accident, aviation, products liability, industrial accident, and automobile claims.

Drunk Driving Accident on Mississippi River Bridge Claims Two Lives

May 12, 2014 | by Broussard, David & Moroux

A man accused of drunk driving faces two counts of vehicular homicide and a 2nd DWI, among other charges, after he rear-ended a vehicle while driving on I-10 over the Mississippi River Bridge, killing two passengers. Three others were transported to the hospital and treated for injuries that were not life-threatening. The accident remains under investigation.

Jeanerette Man Killed in Multi-Vehicle Collision on U.S. Highway 90

May 4, 2014 | by Broussard, David & Moroux

A three-vehicle collision on U.S. Highway 90 claimed the life of a Jeanerette resident after a 2007 Mercury traveling eastbound crossed the median and struck the vehicle travelling westbound by the victim. After colliding with the victim, the motorist driving the Mercury struck another vehicle also traveling westbound by a New Iberia resident. All three motorists were properly wearing their seatbelts and impairment was not suspected in the accident, although an investigation is underway. The Jeanerette man was transported to the hospital in critical condition, where he later succumbed to his injuries. The other two motorists were treated at a local hospital for minor-to-moderate injuries.

Lafayette Jury Awards $9 Billion in Punitive Damages

April 11, 2014 | by Broussard, David & Moroux

A jury in Lafayette has awarded $1.5 million in compensatory damages and $9 billion in punitive damages to a former user of the Actos diabetes medication after the jury determined that the drug was linked to the plaintiff’s bladder cancer. Both defendants, Takeda Pharmaceuticals Co. and Eli Lilly & Co., insists that their medication is safe and they plan to appeal the jury’s verdict. The plaintiff began taking Actos in 2006 to treat his Type 2 diabetes until 2011, when the U.S. Food and Drug Administration placed a warning on the medication’s labels stating that use of the drug for more than a year increases the risk of bladder cancer. The trial also featured Takeda officials destroying pertinent documents about the development and marketing of Actos, which prompted sanctions from U.S. District Judge Rebecca Doherty.

Twenty-Four Bicyclists Killed in Motor Vehicle Accidents in 2012; Highest Total in a Decade

March 21, 2014 | by Broussard, David & Moroux

While the number of motor vehicle drivers killed in Louisiana declined in 2012, twenty-four bicycle riders were killed in Louisiana in 2012, the highest number in ten years. East Baton Rouge Parish and St. John the Baptist Parish contained the most bicycle crash fatalities with five and three respectively. “Many of the crashes between bike riders and motor vehicles could be avoided,” stated Lt. Col. John LeBlanc, executive director of the Louisiana Highway Safety Commission.

Speeding Motorist Faces Charges in Fatal Ascension Parish Crash

March 10, 2014 | by Broussard, David & Moroux

State police consider excessive speed to be a factor in a fatal vehicular collision on La. 42 after a Port Vincent man over-corrected and struck his truck into a vehicle heading in the opposite direction. The victim was properly restrained in her vehicle but ultimately succumbed to her injuries on the way to the hospital. The speeding motorist was not restrained in his truck and is currently being treated for moderate injuries at a local hospital. Upon his release from the hospital, he will be booked in Ascension Parish Prison and charged with negligent homicide, careless operation, and not wearing a seat belt.

Truckers Hauling Hazardous Materials Ignore State Traffic Law

February 25, 2014 | by Broussard, David & Moroux

A state law was enacted fourteen years ago that designated Bluebonnet Drive in Baton Rouge as a roadway free of hazardous materials to provide the public a safe route in the event of an emergency. This law has not stopped truckers transporting hazardous materials such as gasoline from using this route as a short-cut on their daily drives. Cameras caught trucks hauling these materials multiple days in a row and citizens who live nearby the area have begun expressing their concerns. “It’s kind of scary to know that they do make their travels down this road,” stated a concerned citizen who regularly rides her bicycle down the roadway. State police have taken notice and stated that they continue to monitor the roadway to prevent truckers from breaking the law.