rk3helpme Tag

by Richard Kennedy

PASSING ON THE LEFT IN LOUISIANA

            Who is at fault when one driver is passing another on the left?  That depends on the specific facts of that case.  Passing on the left is considered a dangerous maneuver, and a driver of a passing vehicle is held to a higher degree of care.  The left turning driver and overtaking driver collisions represent the classic comparative fault scenario.  In the case of a crash between the two, the law imposes a duty on both drivers. The driver turning left must use their turn signal and not turn until it has been determined it is safe to do so.

            Facts needed when a left turning driver collides with a driver passing them on the left

            Imagine a driver slowing down to make a left turn and at the same time another driver is attempting to pass the “slow moving” car in front of them.  The two collide.  Who is at fault?  That is very fact specific.  Facts needed:

• Did the lead vehicle put their blinker on to indicate a left turn?
• Did the lead vehicle have working brake lights and turn signals?
• The following vehicle, how far back was it?
• How many cars was the following vehicle trying to pass?
• Was the following vehicle completely in the oncoming lane of traffic?
• Did the following vehicle blow its horn?

Conclusion:

            Proving fault in such cases can be complicated and it is fact driven. Often, stories do not match and there is some confusion of fact.  Each case is fact intensive and must be properly evaluated.  Documentation is key in such cases.  When possible, taking photos at the scene are extremely important because it can show the point of impact based on where the debris falls on the road.  Having a skilled attorney working with you is necessary to explain the law, its complexities, and help to maximize your recovery.

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by Richard Kennedy

HIT AND RUN IN LOUISIANA – Quick Overview

In Louisiana, hit and run laws address the legal obligations of individuals involved in vehicle crashes.  The law requires drivers involved in crashes to stop immediately at the scene, provide their name, address, and vehicle registration number to any other involved party, and render reasonable assistance to anyone injured in the crash.  Additionally, if the crash involves injury or death, drivers must also provide aid or summon medical assistance as needed.

What Happens If A Driver Runs?

Failure to fulfill these obligations constitutes a hit and run offense, which can result in serious legal consequences. Penalties for hit and run offenses in Louisiana vary depending on the severity of the accident and whether it resulted in injury or death. In cases involving injury or death, hit and run can be classified as a felony, carrying potential imprisonment, fines, and license suspension or revocation. 

Criminal Consequences

Misdemeanor hit and runs, those where the victim does not have serious injuries or the need for immediate medical care, can be either or both a fine of up to $500 and jail time of up to 6 months.  Felony hit and runs occur when there is serious bodily injury or death and fleeing the scene endangered the health of the victim.  To be a felony, the driver must have known that they were in or caused the crash and should know that the victim was seriously injured or had died as a result of the crash.  The fines for a felony hit and run can be jail time of up to 10 years and/or a fine of up to $5,000.

Remember, Louisiana law requires drivers to report crashes to law enforcement. Failure to report such accidents can also lead to legal penalties.

Do I Have A Claim Against the Driver Who Fled?

If that driver caused the crash, YES!  Sometimes it is hard to find the driver who leaves the scene of a crash and that is why taking photos, video, and capturing any other evidence is key in helping law enforcement locate the fleeing driver.  Vehicle make, model, color, size, and any description are very useful, but nothing is better than photos or videos that capture these details and hopefully a license plate number as well.  I addition to economic and non-economic damages, punitive damages may apply. 

In summary, Louisiana hit and run laws emphasize the importance of taking responsibility for one’s actions after a crash, aiding those in need, and complying with reporting requirements to ensure accountability and public safety on the roads.  To learn more, give us a call to discuss your legal rights.

by Richard Kennedy

SLIP/TRIP AND FALLS IN LOUISIANA

            Louisiana law does not favor the victim in these types of personal injury cases.  A much heavier burden is placed on the injured person to prove that the landowner, merchant/store is at fault for injuries sustained.  The statute is La. R.S. 9:2800.6 that applies to all trip and fall or slip and fall cases where the location of the fall is at or in a store.  This is a “merchant liability statute.”  While there are countless cases on the topic, Jones v. Brookshire Grocery Co., 37,117 (La. App. 2 Cir. 5/14/03), 847 So. 2d 43 is a good outline of the standards.

            If a claim for premises liability (outside of a store) exists, applying La.C.C. Art 2315 (general negligence) or 2317.1 (premises liability), the same duty/risk analysis applies. 

            What duty does the merchant owe to its customers?

            A merchant owes a duty of reasonable care to its customers or “the general public” who use or enter his premises.  The merchant must exercise reasonable care to keep the aisles, passageways, and floors in a reasonably safe condition.  This includes reasonable efforts to keep the premises free of any hazardous conditions that may cause damage or injury.  And a landowner must discover any unreasonably dangerous conditions on the property; either correct/fix it or warn others of its presence.  This seems kind of vague – reasonable care? Reasonable efforts? Each case is fact driven so we must look at the specific facts of each case.

            What do you need to prove?

            In a claim against a merchant by someone injured while legally on their property for damages because of a fall, death or other loss sustained due to a condition existing on the property, the injured person (claimant) has the burden of proving, in addition to all other elements of the cause of action, ALL of the following:

1. The condition presented (created) an unreasonable risk of harm to the claimant AND that risk of harm was reasonably foreseeable.
2. The merchant either (a) created or (b) had actual or (c) constructive knowledge/notice of the condition that caused the damage BEFORE the incident.
3. The merchant failed to exercise reasonable care.  One way to determine reasonable care is to determine whether a written or verbal uniform policy exists regarding cleanup or safety procedures is insufficient, alone, to prove failure to exercise reasonable care.  Without a policy, the merchant would have a hard time explaining how they do so.

“Constructive notice” means that the condition existed for such a period of time that it would have/should have been discovered by a merchant who was using reasonable care.  Just having an employee in that area may not be enough, you would have to show that the employee knew or should have known of the hazard – was reasonable care used.

            Failing to prove any of these 3 will end the claim.[1] White also states that in addition to proving these 3 points, a plaintiff must present evidence that the hazardous condition existed for such a time that it would be sufficient to place the merchant on notice of the condition.  This is called the “temporal” element.[2] There is no set amount of time to pass, but the plaintiff must show it existed for long enough or “such a time period.”[3]

            You also need to show that the “thing” complained of was in the defendant’s custody.  So the “thing” contained a defect that presented an unreasonable risk of harm and that this defective condition caused the damages; and, the defendant knew or should’ve known of the defect.[4]

            What does the merchant have to prove?

            The merchant/store-owner has a duty of care to take reasonable protective measures, including periodic inspections of the property to ensure that it is kept free from hazards like substances on the floor or conditions that may cause a customer to fall.[5]  Determining “reasonable measures” is done on a case-by-case basis, as discussed in the Hardman and Ward cases.  So you look at the risks involved, the overall volume of business, time of day, section of store, type of business, etc. and the degree of vigilance must match those factors.

            Determining “Unreasonably Dangerous”

            While we are each entitled to our own opinions, in personal injury cases, in addition to our client’s opinions, we must look at how courts determine.  Courts use a risk-utility balancing test that includes these components:

1. The use or utility of the thing complained of;
2. The likelihood and magnitude of harm – including the obviousness and a noticeability of the thing;
3. The costs of preventing the harm – can it be fixed or removed?
4. The nature of the plaintiff’s activities at the time of the fall/injury – were they dangerous by nature?[6]

            Open and Obvious:

            Generally, a defendant has no duty to protect against “open and obvious” hazards.  So if the facts show the hazard should be obvious to everyone, then the condition may not be unreasonable and the defendant may owe no duty to the plaintiff.[7]  So the trip and fall duty is not just on the landowner, the pedestrian has a duty to see what should be seen and to determine if their pathway is clear.[8]  One factor to determine if the condition is unreasonably dangerous is if it may be observed by a potential victim – making it possible that even though you fell, if the condition is deemed to be open and obvious (other people would have seen it using “reasonable care”) then the landowner may not be liable.[9]  The hazard should be open and obvious to everyone who may potentially encounter it.[10]  But recently, the Louisiana Supreme Court stated that “open and obvious” is not stated in any of the premises liability statutes and is a “figment of judicial imagination.”[11]  

The more obvious the risk, the less likely it would be to cause injury because it would be avoided.  So location matters.  Was the hazard in a commonly traversed area?  Was it in an area not well trafficked?   I need to know was the hazard in an area where other visitors or shoppers would likely encounter it or in an area where they would be “forced” to go?

The Louisiana Supreme Court clarified where open and obvious is within the breach of duty element of the duty/risk analysis and is not a jurisprudential doctrine barring recovery, but only a factor of the risk/utility balancing test – considering the likelihood and magnitude of harm, and it’s not a consideration for determining the legal question of the existence of a duty. So it is improper to state that a defendant generally does not have a duty to protect against the open and obvious.  With limited exception, there is the duty to exercise reasonable care and to keep the property free from unreasonable risks of harm.  The breach of the duty element is a mixed question of law and fact.[12]

            Conclusion:

            Proving a slip and fall and trip and fall case in Louisiana can be very difficult.  Each case is fact intensive and must be properly evaluated.  Documentation is key in such cases.  When possible, taking photos at the scene are extremely important because it is common that a store/merchant does not have cameras showing that area or “the camera there is broken.” 

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[1]              White v. Wal–Mart Stores, Inc., 97–0393 (La.9/9/97), 699 So.2d 1081; Alexander v. Wal–Mart Stores, Inc., 96–1598 (La.App. 3d Cir.2/4/98), 707 So.2d 1292, writ denied, 98–0572 (La.4/24/98), 717 So.2d 1169. 

[2]              Turner v. Brookshire Grocery Company, 34,562 (La.App.2d Cir.4/4/01), 785 So.2d 161, citing Rodgers v. Food Lion, Inc., 32,856 (La.App.2d Cir.4/5/00), 756 So.2d 624, writ denied, 00–1268 (La.6/16/00), 765 So.2d 339; Davis v. Wal–Mart Stores, Inc., 31,542 (La.App.2d Cir.1/22/99), 726 So.2d 1101.

[3]              Kennedy v. Wal–Mart Stores, Inc., 98–1939 (La.4/13/99), 733 So.2d 1188.

[4]              Taylor v. Chipotle Mexican Grill, Inc., 18-238 (La. App. 5 Cir. 12/27/18), 263 So.3d 910, 914.

[5]              Hardman v. The Kroger Company, 34,250 (La.App.2d Cir.12/6/00), 775 So.2d 1093; Ward, supra; Stevens v. Winn Dixie of Louisiana, 95–0435 (La.App. 1st Cir.11/9/95), 664 So.2d 1207.

[6]              Bufkin v. Felipe’s Louisiana, LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856; Broussard v. State ex re. Office of State Buildings, 12-1238 (La. 4/5/13), 113 So.3d 175, 184.

[7]              Pitre v. La. Tech Univ., 95–1466, 95–1487 (La.5/10/96), 673 So.2d 585, 591.

[8]              Hutchinson v. Knights of Columbus, Council No. 5747, 2003–1533 (La.2/20/04), 866 So.2d 228, 235

[9]              Id.

[10]             Broussard, 113 So.3d at 184; Caserta v. Wal-Mart Stores, Inc., 12-853 (La. 6/22/12), 90 So.3d 1042, 1043 (per curiam); Hutchinson 5747, 03-1533 (La. 2/20/04), 866 So.2d 228, 234.

[11]             Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 359 So. 3d 467, 475.

[12]             Id.

by Richard Kennedy

Types of Auto Insurance Coverage Available to You

            Let’s face it, insurance is not cheap.  Insurance is something you hope you never need, but when you do, you need it.  Auto insurance is no different that any other type of insurance – it costs more than you would like to pay and it can be complicated to understand.  Calling around to find who has the cheapest rates is not the best method and you may be guilty of having done this before but read on to understand the importance of auto insurance and the different “add-ons” you should purchase and why purchasing from a company that has a strong presence in the state and has been in business for many years is important.

            Where to and how to shop for coverage

            You should only purchase from authorized insurance companies and produces in the state.  Those who are not may be a scam, unauthorized companies are illegal in Louisiana and if the company goes broke, you may have no coverage.  Speaking with friends and family is a great place to start, word of mouth.  Also look online.  Go to,  https://www.ldi.la.gov/home to research companies to determine if they are: legitimate, authorized by the state, and if the company has any red flags that the Department of Insurance may warn the public about.

            “Full Coverage” is a Joke – Liability Only

            “I have full coverage” has a good ring to it, but most people have no idea that “full coverage” is really the Louisiana minimum auto insurance coverage required by law.  The minimum auto insurance coverage in Louisiana is liability coverage only, meaning you are only purchasing coverage to protect you if you injure someone else or cause damage to their property.  Those limits are known as 15/30/25 – a limit of $15,000 per person injured, not to exceed a total payment of $30,000 to all those injured, and $25,000 for property damage.  So, if you only have the minimum limits, then you have nothing protecting you if you are injured or your vehicle if it is damaged. 

            This liability only coverage will also extend coverage to any licensed driver you give permission to use your vehicle.  It also applies when you are driving rental cars or another person’s vehicle, when you have their permission. 

            “Add-on:” Medical Payment Coverage

            This is an inexpensive add-on to the minimum limits coverage and is the first step in protecting you if you are injured, no matter who is to blame.  This feature will pay for medical expenses (ambulance, ER, doctors, etc.) up to the policy dollar limits you have purchased.  It will also help with funeral expenses.  This coverage applies to you and anyone in your vehicle.

            “Add-on:” Uninsured/Underinsured Motorist Coverage:

            This is coverage that can protect you, your occupants, and your vehicle.  But this is a tricky area of coverage because there are different types of UM.  Generally, UM or UIM coverage will pay benefits to you if you are involved in a crash with an at fault driver who has no insurance or not enough insurance, as well as any occupants in your vehicle.  This will include medical bills, lost wages, property damage, and general damages (pain and suffering).  It also provides coverage in a hit and run crash. 

            “Add-on:”Uninsured/Underinsured Motorist Economic Only Coverage:

            This coverage is similar to UM/UIM coverage, but has one major difference and for this reason, we do not recommend it.  This “add-on” does not include coverage for compensation of your pain and suffering, loss of enjoyment of life, depression, anxiety, stress, etc. – what is called “general damages” and something we believe to be the most significant type of injury someone can suffer.  It is available.  We do not recommend it, but it is a few dollars cheaper than full UM/UIM coverage.

            “Add-on:” Uninsured/Underinsured Motorist Property Damage Coverage:

            As the name implies, this “add-on” will provide property damage coverage if you are involved in a crash with an uninsured or underinsured driver.  A deductible will exist and similar to liability coverage, there are limits that your coverage can be limited to, such as $25,000 or $50,000.  You can purchase a higher level of coverage.  But keep in mind that if you have collision coverage, this coverage may not be available.

            “Add-on:” Towing and Rental:

            As the name implies, this “add-on” will cover towing charges, including storage, and rental if you are involved in a crash.  The rental coverage will have a daily limit for how much will be covered for a temporary replacement vehicle and a max length of days that would be covered. 

            “Add-on:” Comprehensive Coverage:

            Comprehensive coverage pays for damage to your vehicle from situations like falling trees or branches, flood, fire, vandalism, theft, or a variety of named events specific to each policy.  This would cover damages that are not a result of a vehicle crash. This coverage also has a deductible. 

            “Add-on:” Collision Coverage:

            Collision covers just what you think, collision damage when you are involved in a crash with another vehicle.  It does not matter who would be at fault.  This coverage also has a deductible. 

            As a side note, do not think that because your car is older or not worth much that you should drop comprehensive and collision coverage.  Many people believe that it is something that is not needed.  But think about this, vehicle repairs are expensive, and crashes happen daily.  Do you want to take the chance that if your car is damaged that you will be able to afford to repair it properly?  Think of all the cars we see driving around with damage that the owner simply has not fixed.  What do you believe the resale value looks like.  Insurance for your vehicle is to protect your property and often time vehicles are the most expensive thing a person owns.  Think twice about not purchasing or dropping this coverage.

            Risks of Driving Without Auto Insurance:

            Driving without insurance is illegal and irresponsible.  Louisiana law requires all vehicle owners to maintain liability insurance coverage.  That is the MINIMUM coverage.  If you stopped and do not have valid insurance, you may receive a fine of up to $1,000 if you are knowingly driving without insurance and lying about having coverage.  Simply not having proof of insurance or letting your policy lapse may also result in penalties.  It is possible to have your license suspended and your car impounded. 

            If you are involved in a crash and do not have insurance coverage, you will suffer further losses but not being able to recover the first $15,000 of your claim’s value and $25,000 of your vehicle’s damages.  This is commonly referred to as “No Pay, No Play” and it does not matter who is at fault. 

by Richard Kennedy

Motorcycles

Let’s face it, many, if not most people, do not like motorcycles and, in particular,  motorcycle riders.  Some of the reasons we have heard is because riders break the law, cut in an out of traffic, ride between traffic, do “wheelies”, and speed off when a traffic light turns green.  But most who ride motorcycles are responsible, law-abiding riders and many are business and professional people who ride for pleasure, relaxation, and a sense of freedom.  Riding in heavy traffic and on busy roads is potentially very dangerous because riders have no protection if any type of vehicle crashes into them. So, we must ask what motorcycle riders must do to be responsible riders.  The answers are simpler than one may think.

Is Motorcycle Riding Dangerous

Motorcyclists are more vulnerable to injury than a driver of a larger vehicle if involved in a crash. Research shows that over two-thirds of car/motorcycle collisions are the result of the other driver turning in front of a motorcyclist.  Motorcyclists and cars/trucks need to mix in traffic without causing harm to each other.  Motorcycles present a narrow silhouette and are usually much shorter in length than an automobile. The small profile of the motorcycle may make it appear farther away and traveling slower than it actually is.  Remember that motorcycles are often hidden in a vehicle’s blind spot or missed in a quick look due to their smaller size. Because it is difficult to judge the motorcycle’s distance and speed, vehicle drivers need to take a second look, and then a third. Its small size also makes it more difficult to spot in traffic than another car.  Some motorcyclists take advantage of their small size and maneuverability.

Not all motorcycles are the same.  There is a broad range of motorcycles on the market, ranging from off-road to street motorcycles. 

How to Make Motorcyclists Safe For Themselves and Motorists

The answers are quite simple:

1. Obey all of our traffic safety laws, which apply to all vehicles and motorcycles alike.
2. Perform regular motorcycle maintenance.
3. Take motorcycle driver safety education classes.
4. Wear proper safety clothing: boots that cover the ankles, leather or similarly protective pants and jackets, gloves, and a DOT-approved motorcycle helmet.  Not all helmets are alike.  The general rule is,  if the person drops or damages his/her helmet, replace it before riding again.  Don’t wear flip-flops, short pants, and short-sleeve shirts. 
5. Remember that motorcycles have a low profile and are hard for motorists to see.  Assume that the motorists do not see you.
6. Be mindful of the weather.  Wet roads are slippery, especially when it first begins to rain because the rain has not yet removed the oil and slippery road residue.
7. Have your rain gear available. 
8. Use turn signals or, alternatively, use hand signals when making left and right turns.
9. Don’t tailgate.
10. Know your motorcycle skill level and experience.  Do not ride beyond your ability to ride safely.  Not every rider has the same training, experience, and skills.
11. Ride in the center of a travel lane, not off to one side or the other. 
12. Have a State driver’s license motorcycle endorsement.
13. Know your motorcycle and its capabilities. 

You May Need A Lawyer To Recover Your Damages

Under Louisiana law, a crash victim has one year from the date of injury to file a lawsuit or, if possible, settle the case.  When this one-year period expires, the crash victim loses the right to sue the wrongdoer for both economic and non-economic damages.

Most people have no experience with the legal system and dealing with insurance companies.  It is important to know that there are two Points of View (POV).  The crash victim wants Justice, meaning full compensation.  The insurance company wants to pay as little as possible for the injured person’s damages.  The community in general POV about motorcycles and their riders is that they are “dangerous, killing machines.”  So, if you need an attorney, you want one who cares about you, who spends time getting to know you, who keeps you informed about your case, who spends the necessary time to explain the law, and who knows what evidence is needed to prove all of your damages.

At the Law Offices of Richard R. Kennedy, you will have Richard Kennedy and Richard Kennedy III to represent you.  Is this important?  You bet?  Why?  First, together we have nearly forty years of riding motorcycles in many parts of the United States, from flat lands to mountains.  Because you will know who is representing you; you know that we will keep you timely informed about your case and all the information you need for us to do our very best to get justice for you.  When you call us, we answer your calls and we promptly answer your emails.  The bottom line is simple: we and our clients get to know each other on a personal — not just a professional — level.  That is critical in building trust.  So, if you need a lawyer who is well versed in personal injury and has ridden motorcycles for over 30 years, call us. 

by Richard Kennedy

Reduced Visibility Increases Risks of Crashes

Navigating Reduced Visibility: Safe Driving

Practices for Challenging Conditions

Driving is a responsibility that requires vigilance, attentiveness, and a keen sense of awareness. When faced with reduced visibility situations, the stakes are even higher. Reduced visibility, caused by factors such as fog, rain, snow, bright sunlight, or even darkness, significantly increases the likelihood of crashes and poses a serious threat to road safety.

What is a Reduced Visibility Situation?

A reduced visibility situation is one where your ability to see and be seen is compromised. These situations can arise due to various weather conditions and environmental factors.  Common examples are :

1. Fog: Fog can significantly impair your vision, reducing your ability to see the road, other vehicles, and obstacles. It can be particularly dangerous if it rolls in suddenly or is patchy.
2. Rain: Rain can create a curtain of water on the windshield, making it challenging to see the road and other vehicles. Heavy downpours can also lead to hydroplaning, where your vehicle loses traction on the wet road surface.
3. Snow and Ice: Snow and ice can blanket the road, making it slippery and affecting your control over the vehicle. Reduced visibility can also be caused by blowing snow or sleet.
4. Darkness: Nighttime driving inherently reduces visibility. Reduced street lighting in some areas and glare from oncoming headlights can further complicate the situation.

So what should you do when encountering a reduced visibility situation?  Some safe driving practices in reduced visibility situations include:

1. Slow Down: Reducing your speed is one of the most effective ways to ensure safety in reduced visibility conditions. Slower speeds provide more time to react to unexpected obstacles.
2. Increase Following Distance: Keep a safe following distance between you and the vehicle in front. In adverse conditions, the typical three-second rule should be extended to at least six seconds. This extra space allows you more time to react and stop if necessary.
3. Use Your Headlights: Turn on your headlights, even during the day, to increase your visibility to other drivers. When in doubt, use your low beams rather than high beams, which can create glare in fog or rain.
4. Keep Windows Clear: Make sure all your windows are clean and clear. Use defrosters and windshield wipers as needed to maintain good visibility.
5. Use Fog Lights When Appropriate: If your vehicle has fog lights, use them only when visibility is significantly reduced, such as in dense fog or heavy snow.
6. Avoid Distractions: In challenging conditions, your full attention should be on the road. Avoid using your phone, eating, or any other distractions that can divert your focus.
7. Stay in Your Lane: Follow the lane markings and stay within your lane. Reduced visibility can make it easy to drift out of your lane, so stay attentive.
8. Be Cautious at Intersections: Approach intersections with extra caution. Other drivers might not be as visible as they should be, and some may not adhere to traffic rules.  Do not assume the other drivers are slowing to a stop or that they even can see the intersection controls. 
9. Plan Ahead: Before embarking on your journey, check weather forecasts and traffic reports. If conditions are particularly bad/adverse, consider delaying your trip or taking an alternative route.
10. Know When to Pull Over: In extreme conditions, when visibility is almost nonexistent, it may be best to pull over to a safe location and wait for conditions to improve.

Conclusion

Reduced visibility situations are a challenging aspect of driving, but with the right practices, you can significantly reduce the risks. Prioritize safety, adapt to the conditions, and always be prepared for the unexpected. By following these safe driving practices, you can protect yourself, your passengers, and others on the road, making our highways safer for everyone, even in the most adverse conditions.