Broussard v. Domingue

619 So. 2d 143, 1993 WL 188813
CourtLouisiana Court of Appeal
DecidedJune 2, 1993
Docket92-1073
StatusPublished
Cited by3 cases

This text of 619 So. 2d 143 (Broussard v. Domingue) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broussard v. Domingue, 619 So. 2d 143, 1993 WL 188813 (La. Ct. App. 1993).

Opinion

619 So.2d 143 (1993)

Theodore BROUSSARD, Plaintiff-Appellee,
v.
David DOMINGUE, et al., Defendants-Appellants.

No. 92-1073.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1993.

*144 J.B. Jones, Jr., Cameron, for Theodore Broussard.

Michael Steven Beverung, Lake Charles, for David Domingue, et al.

Before LABORDE, THIBODEAUX and DECUIR, JJ.

THIBODEAUX, Judge.

Wayne McElveen, in his capacity as Sheriff of Calcasieu Parish, Calcasieu Parish Sheriff's Department, and David Domingue appeal an allegedly excessive damage award of $160,000.00 to plaintiff, Theodore Broussard, in connection with misconduct by Deputy Domingue during his arrest of Broussard. The trial judge's determination of liability was not appealed.

Finding no abuse of discretion by the trial judge in his award of damages, we affirm.

FACTS

Plaintiff and his Colombian fianceé, Maria Galen, were stopped for a speeding violation while traveling in his automobile with Florida license plates on Interstate Highway 10 near Lake Charles by Deputy David Domingue of the Calcasieu Parish Sheriff's Department's narcotic unit. The entire encounter was videotaped by a camera attached to Domingue's vehicle. The tape was received into evidence. Its contents poignantly depict the entire scenario.

After exiting his vehicle, plaintiff engaged in a discussion with Domingue regarding the reason for his detention. His fiancee' exited shortly thereafter and was told to reenter the vehicle. Because of her lack of proficiency in the English language, she was hesitant in following these instructions. Broussard then attempted to explain this fact to Domingue who proceeded to arrest him for resisting arrest. Plaintiff was handcuffed and instructed to sit down. However, before he had the opportunity to comply, Deputy Domingue kicked his feet out from under him. Broussard was thrown abruptly to the ground by this maneuver, falling on his buttocks and handcuffed, immobile hands. His head also struck the bumper of Domingue's patrol car.

After immigration officers arrived and searched Ms. Galen's vehicle, Broussard was taken to the Calcasieu Parish jail.

LAW AND DISCUSSION

In finding merit in Mr. Broussard's claim of injury, the trial judge concluded that:

"The petitioner sustained serious injuries due to the actions of the deputy, in particular, his head was bruised, both wrist [sic] were injured requiring surgery, he had a straining injury to his back, he had bruises to his elbows and back, he had headaches and fainting spells, and a broken bone in his hand. Furthermore, due to the accident, defendant [sic] lost numerous days of work which he should be compensated for. In all likelihood, he will miss 6 to 8 weeks of work in the future due to an operation that must be performed on both of his wrist [sic] due to this accident."

Thereafter, the trial judge awarded Mr. Broussard a total of $160,000.00 which included an award for his medical bills of $1,130.00 related to the incident, his future *145 medical expenses of $5,000.00 as well as compensation for the pain, suffering and disability Mr. Broussard has suffered and will suffer in the future.

The defendants argue that the trial judge was clearly erroneous in his determination of the extent of Mr. Broussard's injuries. Because this was a bench trial, determinations of possible injuries suffered by Mr. Broussard were left to the trial judge. He sat as the trier of fact and made his findings related to the negligence of Deputy Domingue and injuries suffered by Mr. Broussard based upon inferences drawn from the testimony and the evidence. In order for this court to upset the factual findings of the trial court, there must exist manifest error or the findings must be clearly wrong. Thus, after a careful review of the record, if the trial court's findings of fact are not clearly wrong, we must allow them to stand even if the facts are open to more than one reasonable interpretation. Rosell v. ESCO, 549 So.2d 840 (La.1989). The factual findings of the fact finder must be given great weight by a reviewing court particularly when they are based on the credibility of witnesses, for such conclusions will not be disturbed absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973). Our review is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding made by the trial judge; there must be a further determination that the record establishes that the finding is not clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, DOTD, 617 So.2d 880 (La.1993); Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra 365 So.2d at 1333. Where a fact finder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, supra 549 So.2d at 845. The manifest error, clearly wrong standard of appellate review applies even when the court's decision is based partly upon the written reports, records or depositions. Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992).

The trial judge found that Mr. Broussard suffered from fainting spells and headaches as a result of the May 1990 incident. Deputy Domingue asserts that the evidence is nonexistent, other than Mr. Broussard's self-serving testimony, of fainting spells and, further, that the only mention of headaches was on Mr. Broussard's first visit with Dr. Sanders post-incident. To support his contention, Deputy Domingue relies on Hargroder v. Protective Life Ins. Co., 556 So.2d 991 (La.App. 3d Cir.), writ denied, 559 So.2d 1367 (La.1990), which illustrates the plaintiff's burden of proof in a personal injury case. Mr. Broussard must prove, with legal certainty, every item of damage claimed by competent evidence showing the extent of damage. The defendants argue that Mr. Broussard failed to prove that his fainting spells and headaches existed beyond a couple of days after the incident due to his failure to present corroborating evidence. However, Hargroder only requires corroboration when the plaintiff attempts to place a value upon his loss through his testimony alone. Hargroder, supra, 556 So.2d at 997. It is admitted that Broussard suffered from headaches and fainting spells, but the defendants attempt to limit these episodes to a few days post-incident. We disagree. In his written reasons for judgment, the trial judge did not specifically state that his award was predicated on long-term fainting spells and headaches suffered by Mr. Broussard. He did find that these ailments were attributable to the actions of Domingue. The law is clear that in evaluating evidence, the trier of fact should accept as true uncontradicted testimony of a plaintiff witness absent a sound reason for its rejection, and these factual findings are to be given great weight. Behmke v. K-Mart Corp., 581 So.2d 291 (La.App. 5th Cir.1991); Jaffarzad v. Jones Truck Lines, Inc., 561 So.2d 144, 157 (La.App. 3d Cir.1990), writ denied, 565 So.2d 450 (La.1990). The photographs, taken shortly after the May 1990 incident as well as Dr. Sanders' testimony, show that Mr. Broussard suffered an injury to his head as indicated by the bruising. *146 Findings of fact regarding credibility must not be overturned unless clearly wrong. Ezell v. General Motors Corp., 446 So.2d 954 (La.App. 3d Cir.1984), writ denied, 449 So.2d 1350 (La.1984).

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619 So. 2d 143, 1993 WL 188813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broussard-v-domingue-lactapp-1993.