Defending A Driver for Marijuana "Intoxication"

As truck driver made an lane change, he collided with a passenger car, which was pushed into a retaining wall.

To add "insult to injury," the truck driver was allegedly under the influence of marijuana. The driver and his employer  were sued for punitive damages.

Obviously, the plaintiff has the burden of proof to demonstrate intoxication of a driver sufficient to warrant an award of punitive damages.

At the time of the subject incident, the truck driver complied with all regulations and testing implemented by the Louisiana State Police, and he candidly informed the police that he had ingested marijuana four days prior to the accident. Louisiana State Police performed a urinalysis on Mr. Stanford, but failed to administer a blood test to prove intoxication at the time of the accident. Plaintiff improperly bases her claim for punitive damages on the results of the urinalysis test.

The mere presence of Carboxy-Delta-9-THC in a urine sample is not sufficient evidence of intoxication or impairment, but rather is only an indication of past marijuana use. There must be a requisite indicia of reliability such that there is no question that the driver was intoxicated at the time of the accident in order for an award of punitive damages to be justified. The plaintiff was unable  maintain a claim for punitive damages because she relied solely on the results of an unreliable form of testing, which did not  conclusively prove intoxication at the time of the accident so as to justify a claim for punitive damages.

Pursuant to La. Civ. Code art. 2315.4, exemplary damages may be awarded upon Plaintiff’s proof that the injuries on which the accident is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication, while operating a motor vehicle, was a cause-in-fact of the resulting injuries. There is no presumption of intoxication in a civil proceeding, and the Plaintiff must prove by conclusive evidence that a defendant was legally intoxicated at the time of the accident.

In order to prevail on a claim for punitive damages under La. Civ. Code art. 2315.4, the Plaintiff must prove three separate elements, but the first element the Plaintiff must prove that the truck driver  was intoxicated or had "a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties."

A  urinalysis does not provide conclusive proof of intoxication. Althought, the chemical compound THC in the cannabinoid causes intoxication when an individual ingests marijuana, aurinalysis test that only evidencing traces of Carboxy-Delta-9-THC in the body is not indicative of intoxication or impairment, but merely an indication of past marijuana ingestion.

The results of a urinalysis test are not equivalent to the level of reliability present in a blood alcohol test. Particularly, because the urinalysis test is not designed to indicate intoxication or impairment, but rather is designed to demonstrate prior ingestion of THC. In contrast, a blood alcohol test is designed to indicate an individual’s blood alcohol content at  the exact moment of testing.

Thus, one cannot equate the reliability of conducting a blood alcohol test with  a urinalysis because the blood alcohol test is designed to indicate present intoxication and the urinalysis is ultimately only capable of indicating previous marijuana ingestion, not intoxication at the time the urinalysis is performed.

Furthermore, a blood alcohol test will reveal levels of alcohol which may be presumptive evidence of intoxication. The evidence of a controlled dangerous substance does not readily translate to presumptive levels of intoxication used in blood alcohol analysis.

In our case, the plaintiff's claim for punitive damages rested solely on the fact that the urinalysis performed by the Louisiana State Police indicated amounts of Carboxy-Delta-9-THC in his urine. The presence of traces of this compound is not indicative of intoxication at the time of accident. In fact, the truck driver  candidly informed police that he had ingested marijuana four days prior to the accident. Thus, the presence of Carboxy-Delta-9-THC in his urine is consistent with past marijuana ingestion, and the urine test performed on him  by the Louisiana State Police could  be used to indicate or imply intoxication and/or impairment at the time of the accident. 　

It is a medical certainty that levels of Carboxy-Delta-9-THC will remain in the human body longer than the actual chemical THC. It is the THC, not the Carboxy-Delta-9-THC that causes an individual to feel the chemical effects of the drug.Thus, the level of Carboxy THC in the body of an individual who ingests marijuana depends on the individual’s ability to metabolize the cannabinoid THC and traces of Carboxy-Delta-9-THC may subsequently remain in the body for more than a month after ingestion of the chemical.

A blood test provides a far more reliable means of ascertaining whether or not an individual is intoxicated. Plaintiff was unable to offer reliable proof necessary to demonstrate that the insured driver was intoxicated at the time of the accident.

When THC enters the human body it is metabolized into a form known as Carboxy-Delta-9-THC.As every human system is different, each person’s body takes a different amount of time to metabolize THC. In fact, traces of Carboxy-Delta-9-THC could stay in an individual’s system for a month or longer depending on how quickly their body is able to metabolize the chemical.

In the case of Marine Drilling Co. V. Whitfield, 535 So. 2d 1253 (La. App 3 Cir. 1988), the Third Circuit Court of Appeal determined that a urinalysis which indicated the presence of Carboxy-Delta-9-THC in an individual’s system was not proof in and of itself that the defendant was intoxicated or impaired such that he could be deemed to be "under the influence" of the drug. This case involved an employee who was terminated for failing a urinalysis.

Thus, we argued that circumstantial evidence of previous consumption was not sufficient to justify an award of exemplary damages. A plaintiff requesting exemplary damages bears the burden of proving the defendant driver’s intoxication at the time of the accident. The plaintiff could not do so.

Reputation Evidence as Mediation Tactic

A few years ago, we were defending a claim by a volatile plaintiff who claimed to have been injured  by our client's employee. Among the issues we wanted to address was the plaintiff's REPUTATION for violence. In his deposition, he stated that he had never been involved in any other lawsuits, had not been sued or sued anyone and had no criminal record or altercations.

The investigative materials included  a document certified by a deputy clerk listing several lawsuits, including:

1. a property dispute for the subdivision in which he and his wife reside,
2. a divorce petition from his current wife filed by wife,
3. a claim against a nursing home,
4. another claim for "damages,"
5. a petition for breach of contract,
6. a claim against UPS shipment of equipment 
7. a claim that someone was using water from Plaintiffs’ well
8. an injunction against the Plaintiff because was involved in a physical altercation with Plaintiff

We argued that because e all of these lawsuits were before the date of plainitff’s deposition, we could use this information to discredit him at trial. We reasoned that we might  be able to use his history of litigation to show a propensity for using lawsuits to make money because in various cases he:

1. demanded the return of his payment along with all reasonable damages,
2. demanded replacement costs, reprogramming costs, lost profits, aggravation, inconvenience, and other damages.

Also, in the plaintiff's deposition, he said that he has been arrested twice for fighting - one over five years ago and one in the past five years. In the incident involving our client, the plaintiff saids he was not charged in the incident at Quizno’s, however, there was a bill of information filed and a warrant filed for his failure to appear in court. Interesting aside: his attorney representing him in ALL of this cases is the son of the former Sheriff of the Parish where the plaintiff was charged.

Medical records indicated possible dependence on pain medication:

1. Reported taking 14-16 Tylenol per day for cervical spine relief on 2/20/95.
2. Reported on 1/20/98 that Neurontin (used for neuropathic pain) and Lorcet (pain medication) were not effective against his pain.
3. On 2/03/98,  began a course of Lodine for pain.
4. On 7/6/06, he reported that he was having pain and taking Lortab once every three days for the pain.
5. He was given 220 10Mg Lortab pills over a 153-day period (5/01/07 - 9/30/07) at an average of 1.4 pills per day.
6. He was also prescribed 40 Oxycontin (2/13/07) and 10 Fentanyl pain patches on 1/24/07 - during the same 153-day period.

In his deposition, he testified that he had his prescription for Lortab refilled the day before the accident because "it’s something you don’t want to go without" because of the pain. Obviously, if he was on Lortab the day of the accident, we could assert a reckless and wanton disregard for safety because  Lortab can impair thinking and reaction time. He had been taking it regularly for ten months before the incident with our client so he should have been well-aware of the contraindications.

Like the Rules of Evidence in other states, Louisiana Code of Evidence article 404B(1) states that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as ... it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding."

Evidence Code article 405(B) goes on to say "in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense...proof may also be made of specific instances of his conduct.

By asserting that the plaintiff had a propensity of violence and the that he was the aggressor in the incident comparatively at fault, we anticipated making the the argument that evidence of his other aggressive acts support our defense. We argued we should be able to use specific instances of his conduct - like the fight that he was arrested for in 2008.

Also, if a plaintiff uses any witnesses to testify as to his reputation, the door can be opened to ask the character witnesses about plaintiff’s other altercations. See State v. Guss, 775 So. 2d 622, (La. App. 4 Cir. 12/6/00) .

Louisiana Civil Code article 2323 states that if a person suffers injury  partly of his own negligence and partly as a result of the fault of another person, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury. We argued that at the very least, the plaintiff should be allotted one-half  of the fault as he was involved in the fight. Because he  was the aggressor and was quite larger than his opponents, he  could be found at a greater percentage fault.

What do you think? Would the judge have allowed the prior charges to be admitted in evidence?

Duty to Prevent a Crime

What happens in Louisiana if your driver sees a crime about to be committed and fails to prevent it (or even report it)?

Although morally repugnant, there is no legal duty to prevent or report.  There is no general duty to protect others from the criminal activity of third persons, and the limited duty to protect others only arises when the criminal act in question was reasonably foreseeable to the owner of the business. Posecai, citing Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La. 1984).

However, a greater level of forseeability and gravity of harm, will impose a greater duty of care on the business. Albritton v. Woods, 795 So.2d 1239, 34, 073 (La. App. 2 Cir. 9/28/01). In the Albritton case, a fight occurred between a bar patron and a third party in a parking lot across the street, which was leased by the bar. Albritton v. Woods, 795 So.2d at 1241. The patron was severely injured by the third party, and he sued the bar owner for failing to protect him from the criminal act of the third party. A court of appeal reasoned that  only when the owner, management or employees of a business have or should have knowledge that a third person is about to engage in injurious conduct, which is within the power of the owner, management, or employees to protect against, does a duty to protect arise. Id. at 1243. See also Adams v. Traina, 830 So.2d 526, 36, 306 (La. App. 2 Cir. 10/25/02).

A commercial property owner has a duty to act reasonably in attempting to prevent injury to patrons. For example in Bradford v. Louisiana Downs, Inc., 606 So.2d 1370 (La. App. 2 Cir. 10/28/92), a patron was bitten by a copperhead in the parking lot at the racetrack. The Court held there was no duty to protect the patron against the risk of being bitten by a snake because the property owner did not know and should not have known of the risk the snake would pose to a patron.  Specifically, the Court acknowledged that the property owner employed security personnel and parking lot employees to patrol the premises to attempt to ensure patron safety.

　

　

Business owners do not have a duty to protect patrons after business hours. in the case of Bezet v. The Original Library Joe’s, Inc., 838 So.2d 796, 2001-1586 (La. App. 1 Cir. 11/8/02), two people were attacked and stabbed in an alleyway and parking lot area leased by several businesses. The victims were walking to their vehicle after the night clubs closed, when they were assaulted. The Court analyzed the Louisiana Supreme Court’s holding in Posecai, and determined that the duty outlined in Posecai does not apply to an attack on a business owner’s premises after normal business hours. 

In particular, the Court held that to extend the limited duty to require business owners to protect the general public at large at all times, including the hours which the business is closed to the public, would require businesses to assume far to much responsibility.