Plaintiff’s Mediation Brief

Logan Dupre
 I. Introduction/Background

This matter arises out of an accident that occurred on October 28th on River Road in East

Baton Rouge Parish. On this foggy morning, construction of a new road was taking place by the

company Levee Construction. Mr. Kelly J. Gautreaux, employee truck driver of Levee

Construction, was operating a Ford dump truck loaded with dirt and was backing up across River

Road preparing to dump the dirt. With this truck blocking both lanes of traffic, two collisions

occurred. Those involved in the first collision were lucky as no one was injured. Rather than

heed this warning and elect to carry out the construction project another time, Levee

Construction continued to block both lanes of traffic with its truck. Cars began lining up behind

each other as they waited for Levee’s truck to move, but not before the second accident whereby

a truck collided with a van and ultimately struck Ms. Marie Terrebonne. This brief explains what

happened and how Levee Construction’s negligence threw Ms. Terrebonne’s life into turmoil.

II. Entities

A. Plaintiff Marie Terrebonne

Plaintiff Marie Terrebonne is a 32 year old mother from Louisiana. She has one child with

her boyfriend Steve Rogers and they have been together since 2009. After dropping out from

high school in the twelfth grade, Ms. Terrebonne ultimately obtained her GED and is currently

enrolled in college through an online university. Ms. Terrebonne has enjoyed employment in the

area of residential home construction as well as being a loan processor for a mortgage firm. She

lived with her parents for 8 months after her injury and during her physical therapy, but now

resides at her boyfriend’s parents home with him and their baby.

B. Defendants Levee Construction & Pierre Bourgeois

 Levee Construction, owned by Ed Jones, was the company carrying out the construction

work on the day of this incident. Pierre Bourgeois was an employee of Ed Jones who was given

the responsibility of flagman concerning the construction being done by the road. Pierre

Bourgeois has not acted as a flagman in 15 years prior to the day of this accident and Mr. Jones

never inquired into whether or not Pierre was capable of flagging that day.

III. FACTS GIVING RISE TO THE INCIDENT

A. Events leading up to the collision

The morning of the incident was foggy and Mr. Jones, owner of Levee Construction,

needed a flagman to divert traffic as they were transporting dirt and would block the roadway.

Mr. Jones asked his employee Mr. Bourgeois if he could flag for him. Mr. Bourgeois told him he

had flagged in the past and could flag for him today. However, unbeknownst to Mr. Jones, Mr.

Bourgeois had not acted as a flagman since his last employer which was over 15 years ago.

Furthermore, Mr. Jones had forgotten to bring the flags which were to be used by the flagman, as

well as failed to provide adequate vests and gloves that would meet the standards asserted by the

Manuel on Uniform traffic Control Devices Manuel (MUTCD). As a result, rather than

suggesting to his boss that maybe they should have at least two flagman, as the MUTCD would

suggest, or at least proper flags, Mr. Bourgeois took it upon himself to make his own flag.

Indeed, Mr. Bourgeois used a stick and some plastic from a raincoat to make the flag in which he

was using this day.

Now, with Mr. Bourgeois acting as a flagman with his freshly created ‘flag’ and attire

with no reflective tape on it, Ms. Marie Terrebonne was driving, heading his direction. Through

he heavy fog, Ms. Terrebonne saw the dump truck blocking her lane of travel and she applied her

brakes. Ms. Terrebonne's vehicle left approximately 132 feet of skid marks on the pavement. The
left front of Ms. Terrebonne's vehicle struck the left front of the dump truck. Following this

collision, no one was hurt, but Levee Construction’s truck continued to block both lanes of

traffic which led to a line of cars that started with Ms. Terrebonne’s and then the van of the

Plaisance’s which had stopped behind her car.

B. The Collision

After the earlier, initial collision between Ms. Terrebonne and Mr. Gautreaux, both left

their vehicles and were off the roadway on the east side near her stopped vehicle. Sometime

later, after the Plaisance’s van had parked behind Ms. Terrebonne’s vehicle, Mr. Dylan Cheramie

struck the right rear corner of the Plaisance van. Ms. Terrebonne was struck as a result of this

collision and was pinned under the Plaisance van.

1. The Effect of the Impact on Marie Terrebonne

Following from this collision, Ms. Terrebonne was pinned between the Plaisance van and

a fence. She was brought to Our Lady of the Lake Hospital and admitted into the intensive care

unit due to multiple abrasions and lacerations as well as fractures in both her left and right hips.

She was initially admitted by Dr. Hatzis and underwent closed reduction of her right hip fracture

dislocation and was placed in traction. She was stabilized and then referred to the Tulane

Medical Center where she underwent further surgery, this time under orthopedic trauma

specialist Dr. Kelly Davis, on her right fractured hip. Ms. Terrebonne would ultimately lose her

ability to walk and have to undergo physical therapy as well as rely on a walker. To this day, Ms.

Terrebonne is still experiencing pain in her lower back and hips which has affected her ability to

sleep properly. Furthermore, she has lost motion in one of her hips and is still unable to drive.

IV. LEGAL ANALYSIS

 A. Defendant Levee Construction’s Liability

Given the magnitude of the project being carried out by Levee Construction whereby

both lanes of traffic would have to be blocked off and that the weather this morning was foggy,

Mr. Jones owed a duty of care to those driving on the road at the time of this project. This duty

of care was breached by Levee Construction when Mr. Jones entrusted an employee of his to

carry out this flagging knowing he had left the flags at home and that they did not have any

attired that would meet the MUTCD’s standards. Furthermore, in the deposition of Mr.

Bourgeois, it is said that Mr. Bourgeois and his boss, Mr. Jones, were very aware of the high

speed at which people drive on River Road. Given the weather this morning as well as the

magnitude of their project whereby they would have to block both lanes of traffic, it was

foreseeable that collisions could occur and that precautions would need to be taken to reduce this

possibility. However, not only was a collision foreseeable, but one had just happened with the

initial collision between Ms. Terrebonne and Mr. Gautraux. Following from this first incident,

Levee Construction should have moved its truck off the road and put off their project until

conditions became better and/or they returned with the appropriate equipment to properly flag

traffic. By failing to take proper precautions initially, the first collision occurred. Then, because

no improvements were made by Levee Construction after this first collision, a second collision

occurred. This second collision was directly caused by Levee Construction as they failed to

correct their negligence from the first collision and are responsible for injuries Ms. Terrebonne

received and thus are liable for her damages.

2. Negligent Entrustment

Levee Construction, specifically Mr. Jones, carried out negligent entrustment the

morning of this accident whereby the competency of the flagman, Mr. Bourgeois, is at issue. Mr.
Jones, knowing the conditions this morning were foggy and that people tend to drive fast on this

road, entrusted Mr. Bourgeois with the responsibility of being a flagman concerning a project

whereby both lanes of traffic would be blocked by their dump truck. Mr. Jones’ basis for

selecting Mr. Bourgeois was nothing more than Mr. Bourgeois assuring Mr. Jones he had

flagged in the past. Mr. Bourgeois, however, because he was not properly inquired into by Mr.

Jones concerning his ability to flag, Mr. Bourgeois was now in charge of flagging traffic for this

immense project in these poor conditions despite never having undergone training nor having

flagged in 15 years.

V. DAMAGES

A. Economic Damages

1. Past Medical Damages

Before the accident, Ms. Terrebonne was a healthy woman with two children and who

worked 40 hours a week. Ms. Terrebonne’s hips were crushed in this October 28th collision

where she was pinned between a van and a fence. She was brought to Our Lady of the Lake

Hospital and admitted into the intensive care unit due to multiple abrasions and lacerations as

well as fractures in both her left and right hips. She was initially admitted by Dr. Hatzis and

underwent closed reduction of her right hip fracture dislocation and was placed in traction. She

was stabilized and then referred to the Tulane Medical Center where she underwent further

surgery, this time under orthopedic trauma specialist Dr. Kelly Davis, on her right fractured hip

where she received twenty-two pins and three plates. Ms. Terrebonne would ultimately lose her

ability to walk and have to undergo physical therapy for two months as well as rely on a walker.
 2. Future medical expenses

Ms. Terrebonne is likely to require future surgeries which may include surgery to provide

maintenance on the pins and plates in her hip as they tend to degrade over time and/or a complete

hip replacement as a result of the injuries she sustained in this collision on October 28th. She also

still experiences pain and is likely to seek further experts to help her with this. Furthermore, Ms.

Terrebonne is likely to seek further physical therapy in order to rehabilitate her ability to drive.

3. Past Wage Loss

Following the incident, Ms. Terrebonne was no longer able to work for her employer of

the past 8 months as she had to undergo major surgery as well as physical rehabilitation.

She cannot drive herself to work as well as cannot sit still long enough to carry out office duties

nor can does she have the mobility to carry out duties on construction sites.

4. Future Wage Loss

At this time, Ms. Terrebonne is still struggling to find work given she still does not have

the ability to drive and still experiences great pain.

5. Loss of Household Services

Her sustained injuries and current state have impacted her ability to take care of her

household as well as even interfering with her ability to take care of her own baby. Indeed, Ms.

Terrebonne is required to use a baby-sitter for most of the day during the week.

B. General Damages

The element of damages that deserves the most attention in this case is not Ms.

Terrebonne’s income loss but the effect of this injury on her life. As with any case, the precise
amount of general damages is always somewhat open to conjecture. However, the amount of

general damages awarded is somewhat dependent on the following circumstances:

1. The sympathetic or non-sympathetic nature of the victim;

2. The status of the defendants and the degree of culpability and financial

responsibility to which each defendant is susceptible;

3. The seriousness of the event giving rise to the injury;

4. The nature of the injury itself; and

5. The nature and extent of special damages.

On the one hand we have Ms. Terrebonne, a sympathetic plaintiff. Her special damages

exceed $1.8 million. Conversely, we have the defendants, whose negligence caused Ms.

Terrebonne’s life to dramatically change. An intensely nurturing woman, Ms. Terrebonne is no

longer able to do the things she loved and got satisfaction from—namely being able to take care

of her baby. She lives with ongoing pain and lack of motion in her right hip – both of which will

continue to impact her life. Furthermore, she has lost her ability to drive and with that lost a great

amount of independence. In this case however, a conservative multiplier of two has been used.

Plaintiff’s general damages, based on this multiplier, are $1,462,802.00

C. Total Damages

The following table sets forth the total damages exposure in this case.

Past Medical Expenses $455,981.14

Past Wage Loss $26,420.75
Future Wage Loss $80,000.00
Vocational Rehabilitation $8,000
Past Loss of Household Services $45,080.00
Future Loss of Household Services $124,073.00

General Damages $731,401

TOTAL EXPOSURE 1,462,802.00

VI. Demand

Plaintiff understands that the above figure is the amount defendants are exposed to at trial

and not the amount demanded for settlement of this matter. The total exposure is significant,

however. Given the exposure in this case, plaintiff’s injuries, and defendants’ liability for the

same, plaintiff will accept $1.4 million as final resolution of this matter. This offer for settlement

is open through the end of mediation.

VII. Conclusion

Marie Terrebonne suffered significant injuries as a result of defendants’ negligence. This

matter should be resolved so that Ms. Terrebonne, while never again being whole, is a at least

compensated for the tremendous losses she has suffered.