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A daunting question in employment discrimination litigation is whether Title VII’s anti-retaliation protection may apply to third party employees. In Thompson v. North American Stainless Steel, the Supreme Court addressed this very issue, holding that Title VII’s ban on workplace retaliation protects co-workers of discriminated employees under certain circumstances. Under Title VII, retaliation occurs when an employer unlawfully fires, demotes, harasses or in any other way “retaliates” against an individual because he or she complained of employment discrimination, filed a charge with the EEOC or participated in an employment discrimination proceeding.

In North American Stainless Steel, an employer fired a female employee’s fiancé after the employer discovered that the female employee filed a gender discrimination suit. The fiancée sued the employer under Title VII’s anti-retaliation provision for damages and back pay. Lower courts dismissed the fiancé’s claims, concluding that Title VII did not permit third-party retaliation claims. The Supreme Court reversed, holding that Title VII’s anti-retaliation protection extends to “any person with an interest arguably sought to be protected” by Title VII. In other words, a worker may file suit if his injury is directly related to the statutory prohibitions of Title VII, even if he is not the originally targeted employee.

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After more than a year of accepting claims, BP has asked a federal judge to dismiss several economic claims . Several of these claims were brought by commercial fisherman, tourism-driven businesses, property owners and offshore workers. BP argues that the Oil Pollution Act of 1990 (OPA) is the only theory of recovery under which injured parties may recover economic damage. Accordingly, BP alleges that all other claims filed outside of OPA are preempted.

OPA is a federal statute that gives the federal government greater control in oil spill prevention and response. BP alleges that OPA requires economic loss claimants to first file an economic claim with the “responsible party” for the oil spill, prior to filing suit. Because the federal government designated BP as the “responsible party” in the Deepwater Horizon Gulf Oil Spill, BP asserts that all economic claims should have been filed with the Gulf Coast Claims Facility. BP believes that under federal preemption, OPA preempts any state law claims not filed in accordance with the federal law.

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Slip and falls are a leading cause of injury today in the United States. If an individual slips and falls in a public place and suffers an injury due to the fall, he may have legal rights. Slip and fall cases hinge upon whether the owner of the property had constructive notice. In other words, the condition must have existed long enough for the owner to reasonably know about the dangerous condition and to take precautions to prevent injury.

Louisiana’s slip and fall statute establishes a burden of proof which governs slip and fall claims against merchants. Under the statute, a merchant includes any individual selling anything in a fixed place. The plaintiff bears the burden of proving that the merchant knew about the unreasonable condition and that the merchant failed to take reasonable precautions in preventing the occurrence. The plaintiff must also demonstrate that the condition presented an unreasonable risk of harm and the risk was reasonably foreseeable to the merchant. Furthermore, in order for the plaintiff to recover, the merchant must have either created the risk or had constructive notice of the risk.

In determining whether the merchant took reasonable precautions, the absence of a cleanup procedure or safety policy is insufficient to prove a lack of reasonable care on the part of the merchant. Still, it is wise for merchants to have a policy for its employees to report spills and to clean up spills as quickly as possible because the existence of a policy may assist a merchant in defending itself in litigation. It is also important to note that Louisiana’s slip and fall statute does not apply to trespassers.

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A St. Charles Parish Louisiana jury sent a strong and unprecedented message to Veolia Water North America, LLC and its intoxicated driver Rodney Gonzales, by awarding $25,000,000 in punitive damages to the victims and their families of a drunk driving accident. After 8 days of trial, the jury found the defendants 100% responsible for the death of James Thistlewaite and the injuries of Jonathan Mouton.

The case arose out of a 2007 crash caused by an intoxicated Gonzales, a Veolia employee, operating a company vehicle at over 90 miles per hour, wrecking it on the Bonne Carre spillway (I-10) and abandoning the completely unlighted truck. Witnesses confirmed that the unlighted vehicle created a sudden and unavoidable emergency leading to a horrific crash and explosion. The jury also found that Veolia, a multinational company, negligently entrusted the company truck to Gonzales, whose substance abuse and poor driving record made him ineligible for a company vehicle under Veolia company policy.

The jury granted $3.5 million to Thistlethwaite for the conscious suffering he endured for eight days in the Baton Rouge burn unit until he succumbed to his injuries; $100,000 to his daughter, Pam for the loss of her father; and $500,000 to Mouton for post traumatic stress disorder and loss of income- for a total judgment of $29,100,000.

The United States Department of Justice filed suit December 15, 2010 seeking civil penalties and billions of dollars in fines against BP and its eight partnering companies over the Deepwater Horizon Gulf Oil Spill.

The Government’s civil claims arise under the Clean Water Act and the Oil Pollution Act. The complaint alleges that the companies’ violation of several federal safety and operational regulations caused serious environmental damage. The Government seeks compensation for cleanup costs, environmental damage and damage to natural resources.

Under the Clean Water Act, the Government may seek civil penalties of $1,100 per barrel of oil spilled into the water. In certain circumstances, the Act also authorizes the Government to recover up to $4,300 per barrel spilled. In August, the Government reported a near 4.9 million barrels spilled into the Gulf of Mexico thus far, and this number may increase as investigations continue.

In Louisiana, a plaintiff may only recover exemplary damages if expressly authorized by Louisiana law. Exemplary damages are more commonly referred to as punitive damages and are imposed on a defendant in addition to general and compensatory damages. Louisiana Civil Code article 2315.4 expressly permits victims of drunk driving to recover exemplary damages in addition to general and special damages against their tortfeasor (individual allegedly responsible for the harm) if the individual acted with wanton or reckless disregard for the rights and safety of others. These damages are punitive in nature and are primarily designed to punish the tortfeasor.

Generally, Louisiana courts provide juries with great discretion in determining the appropriate award of exemplary damages. In Louisiana, the imposition of exemplary damages serves a threefold purpose: punishment, specific deterrence and general deterrence. First, the law seeks to punish the tortfeasor for his wanton or reckless behavior through the imposition of a monetary penalty. Second, the law seeks to use this monetary penalty as a means of specifically deterring the individual tortfeasor from driving while intoxicated in the future. Third, the law seeks to generally deter society from engaging in similar reckless conduct by using the tortfeasor as an example of the consequences of drunk driving.

In assessing exemplary damages, the jury considers all of the facts and circumstances of the case, including the extent of harm caused by the tortfeasor’s misconduct, whether the tortfeasor acted in good faith, whether the misconduct was isolated or part of a broader pattern, and whether the tortfeasor behaved recklessly or maliciously. In Louisiana, the jury may also consider the wealth of the tortfeasor in appropriate circumstances in order to accomplish the objectives of exemplary damage.

A defendant may appeal an award of exemplary damages by claiming that the award violated his constitutional right to due process or that the award was excessive. The Louisiana Supreme Court addressed the issue of excessive exemplary damages in Mosing v. Domas, 830 So. 2d 967 (La. 2002), when a defendant appealed a $500,000 award in exemplary damages. In Mosing, the intoxicated defendant struck the plaintiff’s vehicle when fleeing the scene of another collision he had caused. Id. at 970. The defendant also had numerous DWI arrests and was driving with a suspended license at the time of the two accidents. Id. On appeal, the Louisiana Supreme Court upheld the $500,000 award, explaining that punitive damages are based on the defendant’s motive and conduct in committing the tort, not the plaintiff’s injury. Id. at 978¬80.

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