October 02, 2011
Facebook Entries Negate Car Crash Victims' Physical Injury Claims
On the ever-popular subject of social media posts that belie the statements litigants make in court, consider Boudwin v. General Ins. Co. of America, 2011 WL 4433578 (La. App. Ct. Sept. 14, 2011). The litigation is the result of a serious car accident, and two of the injured victims (Jessi and Lee) believed the insurance company shorted them. In a jury trial, the jury didn't award anything to the litigants for loss of enjoyment of life or physical disability. The court recounts the situation:
At trial, both Jessi and Lee were specifically asked about how their lives had changed following the accident, and both of them gave very similar responses. Jessi, who at the time of the accident had just graduated from high school, testified that before the accident, she studied all the time. Following the accident, she stated she still studied, but it was painful. She said the only thing she could not do following the accident was sit ups and study for long periods of time. At the time of trial, Jessi was a senior at Nicholls State University maintaining a 4.0 grade point average.
Jessi was also questioned regarding some of her routine physical activities, especially in regard to entries she made on her Facebook page. She acknowledged that she runs, or rather jogs, regularly to stay in shape, and even attempted to do an exercise program called P9OX with a friend, which she described as being “really tough.”...
Lee likewise testified that his lifestyle before and after the accident were pretty much the same. He still participated in all the same activities and maintained his military commitment, including successfully completing physical aptitude tests required by the Army twice a year. Still, Lee testified that before the accident, he always stayed active and played a lot of sports, and following the accident, while he continued to stay active, it was “not as much, because I find that after activity that it's a lot more pain than usual.”
On cross examination, however, Lee acknowledged several entries from his Facebook page where he reported frequently “working out” and also playing sports such as basketball, tennis, “ultimate Frisbee,” and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial, which happened to be two days before his final visit with. Dr. Cenac. When asked if he had informed Dr. Cenac of any of injuries he had sustained while playing sports, he stated that he told Dr. Cenac that he stayed “active,” but that he was “not inclined” to tell Dr. Cenac that he was playing on softball teams.
Considering the testimony and medical evidence presented, we cannot say that the jury was manifestly erroneous in refusing to award any damages for physical disability or loss of enjoyment of life. The record clearly shows that neither Jessi nor Lee have experienced any significant limitations or impairments as a result of the injuries they sustained in the May 31, 2008 accident.
More examples in this line of cases:
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco
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