Wrongful Death

Maritime Worker Injured on Job, Sues for Negligence

July 17, 2015 | by Broussard, David & Moroux

A Jefferson Davis Parish man filed a lawsuit against his employer and an equipment manufacturer for injuries sustained during a workplace incident.

Wendell Simar was working on a rig and was required to use a swing rope and cable in order to board a vessel adjacent to the rig. The facts of the suit allege that when Simar attempted to use the apparatus, the cable broke, causing the claimant to fall. Simar struck the side of the vessel before careening into the water below. The lawsuit states that Simar severely injured his back in the process.

Maritech Resources, Tetra Technologies Inc., and Supreme Offshore Services Inc., were named as defendants in the suit. The suit alleges that the cable in question was in disrepair and thus posed a risk of injury. Simar’s argument is that the defendants breached their duty of reasonable care by failing to adequately inspect equipment and provide a safe work environment.

Exposed AC Wiring Leads to Death of Child

June 29, 2015 | by Broussard, David & Moroux

A 1-year old child was electrocuted by exposed wiring in a air conditioning unit while playing outside of her Addis apartment. Kristiana Tillman was playing with other children from ages 5 to 10 when it is believed she came into contact with the wires. She was barefoot and the ground around the unit was wet, according to the report of chief investigator Yancy Guerin of West Baton Rogue Parish Coroner’s office. Guerin also reported that the unit lacked a cover to hold the wiring. The child was left in the care of her aunt, who went into their apartment for a minute when the event occurred, Guerin believes.

Addis Police Chief Ricky Anderson said that the police did not suspect foul play and are still investigating. However, he did believe that “it was piss-poor maintenance to leave the unit exposed like that.”

Potential criminal ramifications aside, this tragic case presents us with a potential example of comparative fault. Louisiana’s concept of comparative fault revolves around the idea that if there are multiple sources of harm, the total responsibility for the injury shall be portioned out between those sources. While no lawsuit for damages as a result of negligence has been filed, we can speculate the potential parties: the victim’s family being the plaintiffs and the apartment complex owners being the defendants. If the apartment complex owners outsource their maintenance tasks to a repair company, then it is likely that that company will be named as a party—if it can be determined that the unit was left uncovered after a repair—which would reduce the percentage of liability for the complex owners.

Trek Recalls Nearly One Million Bicycles After Injurious Defect Re-vealed

June 1, 2015 | by Broussard, David & Moroux

The bicycle manufacturer, Trek, is recalling over 900,000 bicycles in the United States after series of accidents caused by a defect, one of which left the user paralyzed. The Consumer Product Safety Commission stated that a quick-release lever can come into contact with the front disc brake assembly, resulting in either total wheel separation or an instant stop. The recall consists of models built from 2000 to 2015 equipped with front disc brakes and a black or silver quick release lever on the front wheel hub. Bikes equipped with front release levers that do not open 180 degrees from the closed position are not included in the recall.

This recall will doubtlessly avoid many serious injuries but never would have happened without the courageous lawsuit filed on behalf of a client of Broussard, David & Moroux. Cycling and engineering experts overcame Treks denial of fault. Diligent prosecution of important product liability claims is not new to Broussard, David & Moroux. Attorneys have obtained record verdicts and settlements for five decades on a wide range of products including automobiles, boats, tractors, forklifts, trailers, farm equipment, airplanes and helicopters.

Individuals injured by the defective products have the potential to recover from the manufacturers, suppliers, or sellers of such products. Such actions fall under the legal field of products liability and are generally brought under the legal theories of negligence, warranty, strict liability or a combination or variation of the three, depending on the circumstances of the case. The Louisiana Products Liability Act, enacted in 1988, provides that the “manufacturer of a product is liable for damage ‘proximately caused’ by the product to any person if the product, when put to a reasonably anticipated use, is unreasonably dangerous because of its construction or composition, its design, an adequate warning was not provided, or an express warranty about the product was not satisfied.” La. R.S. 9:2800.52.

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.”

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

November 7, 2014 | 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.”