Keeping Testimony of Future Medical Expenses “Out of the Gate”

A rear-end collision is a unique animal in the law. Plaintiff’s attorneys seek them out, and insurance companies fear them­­--sometimes for good reason. The "rear-end" accident is unique because proof of the mere fact that one vehicle strikes the rear of another creates a strong legal presumption of fault under La. R.S. 32:81. While this presumption is formidable, it may be overcome.

The rear-end presumption is premised upon the duty to not follow too closely and the law will assume that the following driver breached this duty when there is impact. However, the following driver can escape liability if he shows that his vehicle was under control, that he followed at a safe distance, and that the lead driver negligently created a hazard which could not have reasonably been avoided. For instance, if it is shown that the reckless or unpredictable driving of the lead motorist created a sudden emergency, the following driver will not be at fault. Brewer v. J.B. Hunt Transport, Inc., 35 So.3d 230 (La. 2010). Once established, the sudden emergency defense trumps the “rear-end presumption.”A "sudden emergency" is created when a driver is placed in a position of imminent peril that he or she did not create through their own conduct. Hickman v. Southern Pacific Transport Company, 262 So.2d 385 (La. 1972). When a driver can demonstrate the existence of a sudden emergency, they are not negligent for failing to do what a reasonable person might have done to avoid the accident had they been given enough time to assess and react to the situation.In Jewitt v. Alvarez, 179 So.3d 645 (La. App. 2 Cir. 9/30/15), a following driver who rear-ended the vehicle of the lead driver was free from fault as a result of the sudden emergency defense where the facts revealed that the accident was solely caused by the slow speed of the lead driver (who almost came to a complete stop on the interstate) and the presence of surrounding traffic prevented the following vehicle from taking evasive action.In Carias v. Loren, 2015 WL 1019481 (La.App. 1 Cir. 3/9/15), an eighteen-wheeler was traveling in the middle lane of the interstate when a "phantom driver" moved without warning from the left lane to the middle lane and slammed on its brakes in front of the eighteen-wheeler. In attempt to avoid the collision, the driver of the eighteen-wheeler swerved to his right and impacted a vehicle which then struck the plaintiff's vehicle. The driver of the eighteen-wheeler invoked the sudden emergency defense; the court agreed and found the defendant-driver free from fault.Rear-end collisions are hard to defend, but a defendant may want to gather a clear understanding of all of the facts before accepting liability. If these facts support the sudden emergency defense, the driver may "walk."

Lawsuits begin in the trial court. For that reason, the immediate focus remains in the trial court where the case will be decided by the jury or the trial judge. However, once the judgment is entered or the verdict reached, the focus quickly shifts to the appeals court. In many cases, what happens in the trial court is just “round one” and cases are often truly decided on appeal. This post will help to identify the types of issues considered when there is an appeal.If you’ve received a negative ruling in the trial court, you are not out of options. State and federal trial court decisions are subject to review by a court of appeals. Generally, when an appellate court reviews a decision, it looks for two things: 1) legal error; or 2) an improper finding of fact. Your chance of success on appeal increases when there is a significant legal error because a reviewing court will give a de novo review of the issue. In other words, you get a brand new “trial” on the issue presented when it involves a legal issue and not merely an interpretation of the evidence offered at trial.The chance of success on appeal decreases when there are no significant legal questions to resolve. In this situation, the trial court’s findings of fact will be respected unless “manifest error” is found. However, other grounds for an appeal do exist including, but not limited to, refusal to admit relevant evidence, refusal to admit an expert’s testimony, providing improper jury instructions or, in some cases, judicial bias toward a party.It is also important to know that your right to seek appellate relief is not only available after a trial. When a party can show that the trial court has made an error which will cause prejudice if not corrected before trial or demonstrate that a reversal of the ruling would resolve the entire claim against that party, they can file a “writ application.” While similar to an appeal, a writ is a streamlined process. When the case presents a new or novel issue of law, the chances of having the appellate court consider the writ increases dramatically.The written brief--the appellate brief (for final judgments) and the writ application (for pre-trial rulings)–is the centerpiece of any request for appellate relief. It is critical that the brief be well-reasoned and persuasive. Appeals often involve oral argument, but, even then, the arguments typically center around issues addressed in the written briefs.When you are in the throes of the fight in the trial court, it is important to remember that another “round” may be coming. Keeping this focus helps to preserve and develop arguments and evidence that may be needed on appeal. Whether you won or lost in the trial court, know that the real fight may just be beginning.Reynolds LeBlanc is an Associate Attorney with Keogh Cox heavily involved in appellate practice. The attorneys at Keogh Cox have decades of combined experience representing clients in federal, state, and administrative appeals. The appeals practice by Keogh Cox attorneys has resulted in positive, landmark rulings in a variety of settings to include: the proper scope of who can administer interventional pain management (Spine Diagnostics Ctr. of Baton Rouge, Inc. v. Louisiana State Bd. of Nursing ex rel. Louisiana Dep't of Health & Hosps., 2007-0183 (La. 3/16/07), 952 So. 2d 702, handled by John P. Wolff III,Chad A. Sullivan and Nancy Brehm Gilbert); the extent to which employers will be protected by the immunity provided by worker’s compensation (Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208, handled by Gracella Gail Simmons and Collin J. LeBlanc); the establishment of mitigation defenses available to attorneys in legal malpractice claims (MB Indus., LLC v. CNA Ins. Co., 2011-0303 (La. 10/25/11), 74 So. 3d 1173, handled by Gracella Gail Simmons and Collin J. LeBlanc); and, the preservation of water rights under the Federal Powers Act (Simmons v. Sabine River Auth. of Louisiana, 134 S. Ct. 1876, 188 L. Ed. 2d 912 (2014), handled by John P. Wolff III and Nancy Brehm Gilbert), along with others.

Earlier this year, Apple was sued in the California class action of Ceja v. Apple, BC #647057, Superior Ct. of California, County of Los Angeles. In the Ceja suit, it was alleged that Apple is liable for automobile-related injuries and death. The “theory of recovery” against Apple is fairly straight-forward: 1) since 2008, Apple has possessed the “lock-out” ability to prevent texting while driving; and, 2) it is liable because it failed to do so. Whether or not the plaintiffs prevail against Apple, the national trend is toward stricter anti-texting laws and harsher consequences for those who text and drive. While this post does not intend to suppose a moral equivalence between drunk driving and driving while texting, the building momentum against texting while driving is reminiscent of the development of the anti-drunk driving laws and message.

It was not until 1938 when 0.15 became the first commonly-used blood alcohol level for intoxication (nearly two times today’s legal limit). Today, driving with a .08 will land you in a Louisiana jail. Many states such as Louisiana have enacted punitive damage statutes that allow for substantial money awards against drunk drivers. For instance, under Civil Code Article 2315.4, punitive damages (a.k.a. “exemplary” damages) are available against any driver whose intoxication causes injury. The message has been heard: drunk driving is illegal and may costs you your freedom, your money, or both.

The prohibitions against texting while driving (and even the broader category of “distracted driving”) are expanding. The State of Washington was the first state to ban texting while driving in 2007. Almost every state has since followed suit. Attitudes are also changing, perhaps in response to public service announcements and targeted media campaigns.

While once legal here, Louisiana, at least on paper, now completely bans texting while driving under La. R.S. 32:300.5. This law was later expanded to prohibit driving while accessing, reading, or posting to a “social networking site.” Last year, related fines and penalties were increased.

The practice of texting while driving has been said to involve three forms of distraction:

1. Manual distraction- taking your hands away from the wheel;

2. Visual distraction- diverting your eyes away from the road;

3. Cognitive distraction- taking your attention away from safely driving.

In the last few years, at least two drivers (one in New Jersey and one in Pennsylvania) have been sued under allegations that they are liable for injury because they sent texts to persons they knew or should have known were driving. Kubert v. Best, 75 A.3d 1214 (2013) and Gallatin v, Gargiulo, #10401 of 2015, Lawrence County, PA.

At some point, auto manufacturers and phone/electronics suppliers may choose or be forced to render texting while driving impossible. Until such a time, the trend against texting while driving continues.