Motorcycle enthusiasts in the New Orleans area are probably aware that Louisiana is one of several states that have gone back and forth on the issue of whether motorcyclists should be required to wear helmets. Louisiana currently requires all motorcyclists to wear helmets, although efforts to repeal this law are ongoing. The ability of motorcycle helmets to prevent death or traumatic brain injury arising from a blow to the head has been well established. One argument presented against helmets, however, arises from a 25 year old study that found the weight of a helmet could cause significant torque on the neck during an accident, injuring the spine and potentially leading to paralysis. A study conducted by the John Hopkins University School of Medicine, however, indicates that this study is incorrect. The John Hopkins’ study reviewed information in the National Trauma Databank regarding more than 40,000 motorcycle collisions between 2002 and…Read More
While all New Orleans wrongful death lawsuits are brought under difficult circumstances, the most tragic cases involve a loved one who suffers from the time of injury until death. When this happens, the family of the victim may be entitled to pursue a survival action in addition to the wrongful death case. A survival action is for the recovery of damages suffered by the decedent from the time of injury until death. Specific damages that may be pursued in a survival action include medical expenses, lost wages, pain and suffering, and mental anguish. If the circumstances surrounding the victim’s death, medical records, or other evidence indicates that the victim passed away instantaneously after being injured, a survival action usually cannot be pursued. If, however, the victim did not die immediately and there is even a bit of evidence that he or she was aware enough to experience – at least…Read More
Lost chance of survival is an issue that may arise in New Orleans medical malpractice lawsuits where the patient has passed away. In cases where a patient — because of his or her medical condition — may have died regardless of medical treatment, damages can still be awarded if the doctor’s negligence caused the patient to lose a chance of survival. A lost chance of survival in any degree may be compensated in damages. The Louisiana Supreme Court has ruled that to establish a connection between the patient’s death and the defendant’s medical malpractice, the survivor need only prove that the defendant’s medical negligence resulted in the patient’s chance of survival being reduced. It is not necessary to prove that the patient would have survived if properly treated. When considering the amount of damages to award for a loss of chance of survival, the jury is allowed to consider the…Read More
When a New Orleans resident is injured using a manufactured product, whether he or she can recover any damages is governed by the Louisiana Products Liability Act. To recover under this Act, the injured person must prove that the product was unreasonably dangerous in one of four ways: 1) construction or composition, 2) design, 3) inadequate warning, 4) or failure to conform with an express warranty. When the manufacturer has indicated that a product is safe to use in a certain way and it is not, the injured person may be able to recover damages based on the product failing to comply with an expressed warranty. An express warranty is a verbal or written statement guaranteeing either that the product will work in a certain way or that the product is warranted against defects in materials or workmanship. Under the Louisiana Products Liability Act, a product is unreasonably dangerous based on a failure…Read More
Not every injury entitles the injured person to compensation. While every New Orleans personal injury lawsuit has its own set of unique circumstances, there are some fundamental facts that must be proven in every case before the plaintiff may be awarded damages. The basic laws underlying all personal injury lawsuits brought in Louisiana are set forth in Articles 2315 and 2316 of the Louisiana Civil Code. Article 2315 states: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Article 2316 states: “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” While these articles would seem to allow for a successful lawsuit whenever it can be established that a defendant’s negligence caused injury to the plaintiff, this is not actually the case. In a…Read More
Not every New Orleans personal injury lawsuit involves victims who were in perfect physical condition prior to the accident. Especially in the case of older victims, minor physical problems may become much more serious following an accident. A pre-existing injury can complicate a personal injury lawsuit. Obviously, the defense will argue that the victim’s current circumstances are no different than before the injury and, as a result, they suffered no damages. While in some cases this can be a difficult hurdle to overcome, individuals who suffer an aggravation or activation of a pre-existing condition are entitled to pursue damages. A victim is entitled to recover damages when an accident causes a pre-existing condition to flare up or become more serious. When making this determination, a jury will have to determine whether the victim suffered from a pre-existing condition and, if so, whether that condition was worsened by the accident. If…Read More
It is not unusual for the defense in a New Orleans personal injury lawsuit to request that an injured person undergo an examination by a medical provider of their choosing. While the defense typically refers to this examination as an “independent medical examination”, personal injury attorneys frequently call it a “defense medical examination” because the examiner – who is being paid by the defendant – is not truly independent. While a medical provider conducting an examination on behalf of the defense may conclude that your account of your injuries is completely accurate, very rarely does this actually happen. The reason the defense wants to have a doctor examine you before trial is because it is hoping that the doctor will reach conclusions regarding your condition that can be used against you in your lawsuit, and you can expect that the defendant’s physician will look for at least some aspect of…Read More
The conduct of the injured person can be an issue in any New Orleans premises liability lawsuit. As a result, it is likely that the defense will – at least to some extent – call into question the actions of the injured person when such a case is being tried. A person patronizing a store has the responsibility to see and avoid obvious hazards. As a result, the defense will want to establish that the hazard was readily apparent, the victim did not act in a way that would be expected of a reasonable person, and the victim’s conduct contributed to the injuries. The amount the victim recovers in damages will then be reduced by his or her own percentage of responsibility. When arguing that the victim should be held responsible for his or her own injuries, the burden is on the defense to prove by a preponderance of the…Read More
The parties occasionally file motions for summary judgment with the court in New Orleans personal injury lawsuits. The filing of such a motion means that one of the parties believes that there are facts in their favor that are beyond dispute. If the court agrees, the court will rule on the issue without need for a trial. A motion for summary judgment may be made by either the plaintiff or the defendant. When presenting this motion, the party is arguing that no “genuine issue of material fact” exists that is worthy of being heard at a full trial. In legal terms, a fact is “material” in a personal injury lawsuit when it is essential to the plaintiff’s theory of recovery. A “genuine issue of material fact” means that reasonable people could disagree about the fact being considered. When there is a genuine issue, a determination is properly left to the…Read More
When a New Orleans injury auto accident occurs, the party at fault is responsible for paying any damages arising from the collision. Although which driver is responsible for the accident usually must be decided by a judge or jury, if the injured party is struck from behind liability is usually easily established. In Louisiana, a driver is presumed to have been negligent if he collides with the rear of a vehicle ahead of him. When this situation occurs, it is assumed that the rearward driver either did not leave sufficient space between the vehicles to allow for making a safe stop under normal driving conditions, or he or she failed to pay proper attention to the events taking place ahead. Because of this presumption, the injured party no longer has the burden of proving the rear driver was negligent. Instead, the burden is placed on rear driver to prove that…Read More
