Premises Liability

Penalty Phase of BP Trial Concludes, Steep Civil Penalties Expected

March 6, 2015 | by Broussard, David & Moroux

On February 2^nd, after two long years of litigation, the final phase of the BP oil spill trial finally saw its last day in court. This last phase—the penalty phase—served as a chance for attorneys representing both sides to argue for reduction or expansion of BP’s potential fines under the Clean Water Act.

Presiding Judge Carl Barbier of the United States District Court for the Eastern District of Louisiana limited the amount of potential fines by potentially billions of dollars when he found the size of the spill to be 3.19 million barrels instead of the federal government’s estimate of 4.09 million barrels. This difference represented up to $17.6 billion in fines.

Despite this, Judge Barbier’s ruling on the merits—that BP was “grossly negligent”—bumped their potential liability far beyond the liability under a finding of ordinary negligence. Specifically, a finding a “gross negligence” opened BP up to a statutory maximum of $4,300 for each barrel spilled.

Federal Judge Dismisses Levee Authority’s Lawsuit Against Oil and Gas Companies

February 20, 2015 | by Broussard, David & Moroux

Back in October, we wrote about an ongoing lawsuit filed by the Southeast Louisiana Flood Protection Authority against eighty-eight oil and gas companies operating off the Louisiana coast. Last Friday, February 13, 2015, this lawsuit saw its final days in court, as Federal Judge Nannette Jolivette Brown dismissed the lawsuit under Rule 12(b)(6) of the Federal Rules of Civil Procedure for the plaintiff’s failure to state a claim upon which relief can be granted.

The Levee Authority filed this lawsuit ostensibly under its authority to “ensure the physical and operational integrity of the regional flood risk management system.” Their central contention was that the defendant oil and gas companies’ operations “have led to coastal erosion in the Buffer Zone, making south Louisiana more vulnerable to severe weather and flooding.” The Buffer Zone is an area in which the defendant oil companies currently operate and extends from the Mississippi River “through the Breton Sound Basin, the Biloxi Marsh, and the coastal wetlands of eastern New Orleans and up to Lake St. Catherine.”

The Levee Authority’s specific claims were that the defendants dredged a network of access canals for transportation of oil and gas products, which killed off much of the vegetation, caused sedimentation inhibition, erosion, and subsequent submergence of coastal land. Additionally, the Levee Authority claimed that the defendant oil companies failed to properly maintain the access channels and canals, which exacerbated erosion of canal banks, creating wider, deeper canals than permitted.

Gretna Dog Attack Leaves Four-Year-Old Child Injured

February 13, 2015 | by Broussard, David & Moroux

A Gretna mother recently filed suit for injuries sustained by her four-year-old son during an attack by a neighborhood pit bull. The plaintiff alleges that the defendant, who keeps four pit bulls in his fenced-in yard next door to the plaintiff, failed to supervise and control the dogs thereby negligently permitting them to roam the neighborhood from an opening in the fence.

The plaintiff claims that, on the day of the incident, her son was chasing their family cat around the neighborhood when he ran by the opening in their neighbor’s fence through which the dogs commonly exited the yard. As the child approached this opening, one of the pit bulls reached through the opening in the fence, biting the child and dragging him through to the neighboring yard. The child sustained scratches and lacerations to his face and skull, severe lacerations to his thigh, puncture wounds, bruises, and contusions.

Like most, if not all, jurisdictions, Louisiana recognizes negligence as a theory of liability upon a showing that the defendant (1) owed a duty of care, (2) the defendant breached the duty owed, (3) the defendant’s substandard conduct was both a cause-in-fact and legal cause of the plaintiff’s injuries, (4) actual damages. Successfully proving each of these elements establishes a prima facie case of negligence from which a plaintiff may recover for damages sustained.

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/

Broussard, David & Moroux Holds Grand Opening for New Location in Downtown Lafayette

October 15, 2014 | by Broussard, David & Moroux

LAFAYETTE – Broussard, David & Moroux Law Firm held a grand opening ceremony on Wednesday, October 15th, in honor of their recent move to a new location. Their new offices are located in the heart of downtown Lafayette on the corner of Jefferson Street and Vermilion Street in the historic Moss Building (557 Jefferson Street).

A crowd gathered to help Fr. Hampton Davis bless the new building. A ribbon cutting ceremony and reception followed in conjunction with the Chamber of Commerce Business After Hours event. Guests were able to tour the newly renovated building and learn about the history of its presence in downtown Lafayette.

For the last 200 years, the site of the historic “Moss Building” was the epicenter of local activity in a growing Lafayette. Today, the Moss Building plays an important role, once again, as downtown Lafayette enjoys a renewed vitality. Blake David, partner at the law firm, says that “Broussard, David & Moroux was eager to invest in an opportunity to restore one of Lafayette’s landmarks and is committed to enhancing the downtown community so that it is a great place to live, work and play.”

New Orleans Accident: Workers injured in scaffold collapse

August 15, 2013 | by Broussard, David & Moroux

Two construction workers suffered injuries when the scaffolding they were working on at the Drury Inn on Poydras Street collapsed, trapping both under the wreckage until the fire department arrived. Both men had just exited the structure when the collapse occurred, knocking one worker “twenty yards over” when a board slid off the structure and struck the man. Police blocked off the surrounding area until an inspector ensured that the scaffolding was secured. Both men were transported to the hospital with injuries, although none critical or fatal.