School Bus Accidents

Car Strikes UL Student In University Avenue Crosswalk

October 19, 2015 | by Broussard, David & Moroux

A University of Louisiana at Lafayette student was crossing University Avenue last week when she was struck by an oncoming motorist.

The student, whose name has been withheld, was in the crosswalk when she was struck, reports Cpl. Paul Mouton. The driver had made a left from McKinley Street onto University when the two parties collided.

The student received minor injuries to her leg and was taken to a local hospital. The driver received a ticket for failing to yield to pedestrians in a crosswalk.

Teen Killed After Being Struck by Drunk Driver, Another Injured

August 18, 2015 | by Broussard, David & Moroux

Eighteen-year-old Richard Billingsley of Prairieville was pushing a disabled vehicle off of the highway when he was hit by a speeding vehicle operated by a drunk driver. Billingsley was pronounced dead at the scene on LA 42 west of LA 44 in Ascension Parish. The intoxicated operator, 41-year-old J. Thomas Bowers, suffered no injuries.

Prior to the accident, Billingsley was riding with an unidentified woman when the SUV they were riding in broke down. Authorities reported that the driver turned on her emergency flashers and Billingsley got out to push the vehicle off to the side of the road. Unfortunately, according to the report, Bowers was traveling east on LA 42 and did not stop, striking Billingsley while traveling above the speed limit. The SUV driver received minor injuries while Bowers, despite not wearing a seat belt, was unharmed.

After Louisiana State Police arrived at the scene, Bowers refused to submit to a breathalyzer and was taken to St. Elizabeth Hospital a blood sample was obtained. Bowers was charged with vehicular homicide, DWI, vehicular negligent injuring, reckless operation, open container, speeding, and not wearing a seat belt. This is Bowers’s second DWI offense.

Drunk Driving Believed to Have Claimed 3 Lives

August 4, 2015 | by Broussard, David & Moroux

Two different drunk driving accidents claimed three lives in Louisiana this week. The first accident occurred in the town of Loranger. Bruce Pierre was driving his vehicle on Hwy. 40 with Charles Harper in the passenger seat. The police report states that Pierre was speeding when he collided with the end of a utility trailer being hauled by a pickup truck. The vehicles collided with such force that Harper, who was not wearing a seatbelt, was ejected from the vehicle and pronounced dead at the scene.

After arriving on the scene, authorities gave Pierre a blood sample test, which he failed. He was arrested for DWI, vehicular homicide, careless operation, and driving without a license. The driver of the pickup truck was not inebriated.

The second accident occurred in Washington Parish and resulted in the death of both parties involved, 84-year-old Marjorie Orr and 35-year-old Justin Farley. Police reported that Farley, who was believed to be inebriated at the time of the crash, veered off the road after missing a turn, overcorrected, and hit another vehicle in which Orr was a passenger. The impact was enough to tear Farley’s vehicle in two and eject him from the vehicle, despite the fact that he was wearing a seatbelt.

Customer Injured at Metairie Macy’s: Premises Liability in Louisiana

February 9, 2015 | by Broussard, David & Moroux

A Macy’s Department Store in Metairie recently became the subject of a premises liability action filed by a customer who reportedly slipped on a rug while shopping in the store.

The plaintiff reported that, in early December of 2013, she tripped and fell on a rug that was placed on the floor. As a result of her fall, the plaintiff claims that she injured her knee in the process. Attorneys for the plaintiff claim that the placement of the rug “created and represented an unreasonable risk of harm,” as well as demonstrating the merchant’s failure to properly inspect the premises and maintain a reasonably safe condition. The plaintiff seeks over $50,000 in compensatory damages.

The plaintiff’s lawsuit falls under the recognized theory of liability known “premises liability.” Premises liability against merchants is recognized in Louisiana and governed by Louisiana Revised Statutes 9:2800.6. This statute provides: “A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably my give rise to damage.”

Exception to Rule Against Untimely Claims Upheld in Washington, Louisiana

February 2, 2015 | by Broussard, David & Moroux

When an individual suffers an injury at the hands of another, it can be a devastating experience to both the individual and his or her family. It can impose unforeseen medical costs, result in an inability to work, create a dire financial hardship, or otherwise create a very difficult experience for everyone involved. But this is why we have the civil justice system: to make the victim “whole” by providing a means for obtaining legal relief against the wrongdoer.

In pursuit of fairness and equity, however, the law sometimes recognizes considerations in favor of the wrongdoer. One of the most prominent of these considerations are statutes of limitations—or, as we say here in Louisiana, “prescription”. Prescription describes the procedural device that places a time limit on a plaintiff’s right to pursue a claim. So, for instance, if you were injured as a result of another person’s negligence, you have one year to file the claim in court before prescription bars you from filing the lawsuit altogether. While there are many nuances to this general rule and different prescriptive periods for different causes of action, it generally operates in this way. As mentioned above, prescription works in favor of the wrongdoer and for good reason. It ensures that injured plaintiffs pursue their claims with reasonable diligence, it gives defendants certainty about the timing of a potential claim against them so they can adequately prepare a defense, and it keeps the lawsuit temporally close to when the injury occurred so that potential witnesses and evidence to be presented at trial are still available.

But lawsuits can sometimes get overly complicated, leading to oversights and inaccuracies by parties to the suit, attorneys, and judges. One classic instance of such an oversight is where the plaintiff names the improper defendant in the lawsuit, and in the meantime, prescription on the claim against the proper defendant runs. What happens in this situation? Do the courts let procedural rules trump the overarching goals of equity and fairness in the justice system?

Federal Government Agrees to Settlement with Gulf-Polluting ATP Infrastructure Partners, LP

January 15, 2015 | by Broussard, David & Moroux

Operating in violation of both the Clean Water Act (CWA) and the Outer Continental Shelf Lands Act (OCSLA), ATP Infrastructure Partners LP (ATP-IP) has agreed to pay a $1 million civil penalty to settle a federal lawsuit over illegal discharges of oil and chemicals from an oil platform in the Gulf of Mexico.

The lawsuit, instituted by the United States, was resolved by way of joint judicial enforcement action involving the Environmental Protection Agency (EPA), the Bureau of Safety and Environmental Enforcement (BSEE), and the Justice Department.

In its complaint filed in the U.S. District Court for the Eastern District of Louisiana, the United States alleged that ATP-IP “violated Section 311(b)(3) of the CWA when oil and other pollutants were discharged into the Gulf of Mexico from the ATP Innovator.” Violation of this provision in the CWA opened up ATP-IP to possible civil penalties. The United States also urged that ATP-IP was liable for injunctive relief under OCSLA, “as the owner of the ATP Innovator … [for] hidden piping configuration [that] was being used to inject a chemical dispersant into the facility’s wastewater discharge outfall pipe to mask excess amounts of oil being discharged into the ocean.”

Study Reveals Correlation Between Daylight Savings Time and Higher Rates of Traffic Fatalities

December 15, 2014 | by Broussard, David & Moroux

Reduction of traffic accidents—particularly fatal traffic accidents—has long been at the center of public debate and the ambition of state and federal policymakers. The 1960s proved a watershed decade for transformation of traffic safety. With traffic fatalities on the rise in the 1960s, spiking at 49,000 traffic fatalities in 1965, public concern over traffic safety began to dominate the national discussion. Culminating with the 1965 publication of Ralph Nader’s “Unsafe at Any Speed”—a book that issued scathing criticisms of vehicle manufacturers for their willfully rejecting the addition of safety features into their automobiles—policymakers reacted. By calling on states to erect highway safety measures, the Highway Safety Act passed by Congress in 1966 was the first of many concentrated efforts to reduce this increasing problem. One important feature of this legislation was that it created the National Highway Traffic Safety Administration, or NHTSA, which primarily operates as a safety administrator, promulgating rules designed to increase safety on highways, but also to increase safety of the vehicles themselves by imposing regulations on manufacturers.

With the bulk of this debate happening from the 1960s forward, traffic safety has long been on the minds of citizens and policymakers. Improving safety based on readily observable causes—prohibiting intoxicated driving, reducing speed limits, requiring operating traffic signals, etc.—is one thing, but as a recent study reveals, sometimes the causal or correlative connection between a phenomenon and traffic safety is more mysterious.

A recent study by University of Colorado-Boulder PhD candidate Austin Smith revealed a curious correlation between daylight savings time and increased traffic fatalities. This study reviewed data on fatal vehicle accidents from 2002 to 2011 and compared the number of fatal accidents that occur just before and after daylight savings time changes took effect.

Profile of J. Derek Aswell

November 21, 2014 | by Broussard, David & Moroux

Here is an interview with Broussard, David & Moroux attorney J. Derek Aswell with The Advertiser:

http://www.theadvertiser.com/story/life/people/2014/11/13/j-derek-aswell/18960697/

Products Liability in Louisiana under the LPLA

October 31, 2014 | by Broussard, David & Moroux

As Halloween approaches, I’m reminded of a story I was told growing up–a story that has spread like wildfire and survived the ages. It’s the story of a young child, happily trick-or-treating in his neighborhood and too fixated on his chocolate, sugary boon to care about any potential for harm. As the young child explores his neighborhood, bouncing from home-to-home, he approaches one residence that has opted to hand over candied apples to its trick-or-treaters instead of candy. The young child approaches the home, receives his candied apple in exchange for his promise not to “trick” and then scampers off to his next target home. Later that night, inspecting his bounty, the young child discovers a razor blade in his candied apple–a razor blade that, had he bitten down on it, would’ve caused him serious injury. Those of you reading this are tempted to relegate this story to “urban legend” status, a story designed to scare children into safer Halloween habits. However, I instead encourage you to think about this scenario as a basic, yet well-recognized example, of Products Liability law.

The area of tort law known as Products Liability deals with rights, duties, obligations, and standards associated with the distribution and safety of products. That is, manufacturers are liable for the personal injury or other damage caused by their defective product. Intuitive as it may sound, this was not always the case. Before Louisiana extended this right to injured plaintiffs–the right to seek remuneration for personal injuries caused by defective products–courts often denied injured plaintiffs’ claims due to the legal doctrine of “privity of contract.” Under this doctrine, courts conceived products liability to be a contractual matter, and recovery against the seller was rooted in contractual remedies. Accordingly, this “privity” required that the defendant-manufacturer be a party to the contract of sale in order to provide remedies outside of the law of contracts. Since manufacturers rarely sell their products directly to customers, but instead sell them to retailers who distribute them to the public, manufacturers were often shielded from liability.

Gradually, the conception that products liability was restricted to the realm of contracts started to erode. For example, the Restatement of Torts adopted a provision “providing limited strict liability of the manufacturer of a product for the personal injury damages caused by a defect in the product.” This approach to products liability was later adopted by the Louisiana Supreme Court in Weber v. Fidelity & Cas. Ins. Co. of NY, 250 So. 2d 754 (La. 1971), which provided for manufacturers’ strict liability in tort for their defective/injurious products.

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.