Brown v. City of Madisonville

5 So. 3d 874, 2007 La.App. 1 Cir. 2104, 2008 La. App. LEXIS 1547, 2008 WL 4975950
CourtLouisiana Court of Appeal
DecidedNovember 24, 2008
Docket2007 CA 2104
StatusPublished
Cited by15 cases

This text of 5 So. 3d 874 (Brown v. City of Madisonville) 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
Brown v. City of Madisonville, 5 So. 3d 874, 2007 La.App. 1 Cir. 2104, 2008 La. App. LEXIS 1547, 2008 WL 4975950 (La. Ct. App. 2008).

Opinions

GUIDRY, J.

|2A truck driver appeals the allocation of fault and general damages awards rendered by the trial court pursuant to a jury verdict for an accident in which the trailer of his 18-wheeler collided with an overhanging tree limb while traveling down a state highway. The State of Louisiana, through the Department of Transportation and Development (DOTD), separately appeals the trial court’s judgment finding it liable and the jury’s award of special damages.

FACTS AND PROCEDURAL HISTORY

Around 1:00 p.m. on November 10, 2000, Michael Brown was driving an 18-wheeler for Triad Transport, Inc. on Louisiana Highway 21, known as St. John Street, in Madisonville, Louisiana. About five minutes from his destination, as he was preparing to navigate a sharp curve in the road, the trailer of the truck collided with a tree limb that hung over the lane in which Mr. Brown was traveling. A few weeks prior to the accident, in August 2000, the DOTD had completed a road maintenance project along that stretch of Louisiana Highway 21 that included overlaying the roadway.

The collision with the tree limb damaged the roof of the trailer of the truck, but did not damage or cause a spill of the hazardous materials Mr. Brown was transporting in the truck at the time. Mr. Brown reported the incident to his dispatcher, and on receiving instructions from his supervisor, proceeded to his destination where he waited for a replacement trailer to which to transfer the load of hazardous materials he was transporting.

Although he did not seek immediate medical attention following the accident, within days of the incident, Mr. Brown notified his supervisor and dispatcher that he was experiencing some pain. He visited the emergency room of a local hospital to seek treatment two weeks following the accident, but after waiting for a few hours, he left the hospital without being treated. A few days | 3later, Mr. Brown again sought medical treatment, and was prescribed various anti inflammatory and pain medication and conservative therapy for his pain. Despite his pain, Mr. Brown continued to work as an over-the-road truck driver during this time.

By mid-December 2000, Mr. Brown’s pain had not abated, but had grown worse. The medical treatment that he had received did not improve his symptoms, and Mr. Brown sought more specialized and invasive medical treatment for his injuries. Due to his pain and the potency of the medication he was taking, Mr. Brown stopped working.

On November 9, 2001, Mr. Brown filed a petition for damages against the City of Madisonville, Covington Paving Company (identified in the petition as “Covington Paving”), and Weldon Wallace Poole (identified as “Wallace Poole” in the petition), generally alleging that the named defendants were liable for failing to properly maintain the roadway to eliminate the danger presented or to warn of the danger. In the petition, Mr. Brown asserted that prior to the accident, the roadway was resurfaced “and this actually raised the height of the roadway, causing the tree limb to be below a safe height at which vehicles could pass without striking the limb.” Mr. Brown later amended his petition to add the DOTD as a defendant.

[879]*879Mr. Brown’s claims against the City of Madisonville and Mr. Poole were later dismissed pursuant to summary judgments granted in favor of those defendants. Mr. Brown also filed a motion for partial dismissal, to dismiss without prejudice the claims asserted against Covington Paving Company, which was granted by the trial court. Mr. Brown then filed a motion for summary judgment against the remaining defendant, the DOTD, which the trial court denied in open court at the hearing on the motion.

Thus, the matter was set to proceed to trial. On the eve of trial, the DOTD filed a motion in limine to exclude the testimony of an economics expert whose | testimony Mr. Brown proposed to present to the jury. A four-day trial on the merits began on December 4, 2006. On the third day of trial, prior to the presentation of the testimony of Mr. Brown’s economics expert, the trial court considered the motion in limine filed by the DOTD and denied the motion. Thereafter, the parties continued presentation of evidence and argument to the jury, following which the jury ruled in favor of Mr. Brown, awarding the following damages, subject to reduction in accordance with the jury’s allocation of sixty-one percent fault to Mr. Brown and thirty-nine percent fault to the DOTD:

Past physical pain and suffering $ 10,000
Future physical pain and suffering $ 40,000
Past mental pain and suffering $ 6,000
Future mental pain and suffering $ 12,000
Past medical expenses $186,453
Future medical expenses $614,503
Past loss of wages $179,736
Loss of future wages and/or earning capacity $446,971
Loss of enjoyment of life $ 10,000

The trial court rendered judgment in accordance with the jury’s verdict, and following the denial of various post-trial motions filed by the parties, the trial court granted Mr. Brown a devolutive appeal and the DOTD a suspensive appeal from the judgment. Consideration of those cross appeals is discussed herein.

ASSIGNMENTS OF ERROR

By this appeal, Mr. Brown seeks to modify the judgment in the following respects:

1.The jury erred in assessing 61% comparative fault to the plaintiff, where there is no evidence or testimony supporting any fault on the plaintiff.
| ñ2. The jury erred when it awarded only $10,000.00 dollars in past pain and suffering for injuries that had necessitated undergoing $186,453.00 in invasive medical treatment for chronic pain for a period of over six years.
3. It was error to award only $40,000.00 in future physical pain and suffering when the jury agreed that plaintiff had injuries that would require $614,503 in future medical care to try and control the pain.1

The DOTD filed a separate, suspensive appeal of the judgment, alleging the following assignments of error:

1. The trial court erred in denying the State’s Daubert motion seeking to deny qualification to plaintiffs expert in economics and statistics, where the expert used methods of calculation [not] accepted in the industry.
2. The jury erred/abused its discretion in finding 39% liability on the part of the State, when it should have assessed 100% liability to plaintiff.
3. The jury erred/abused its discretion in awarding plaintiff past lost wages in the amount of $179,736.00, which [880]*880was based entirely on only his wages for his last six months of employment, and did not include the average of his prior earnings for the past five years.
4. The jury erred/abused its discretion in awarding plaintiff future lost wages in the amount of $446,971.00 which was based entirely on only his wages for his last six months of employment, and did not include the average of his prior earnings for the past five years.
5.

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Bluebook (online)
5 So. 3d 874, 2007 La.App. 1 Cir. 2104, 2008 La. App. LEXIS 1547, 2008 WL 4975950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-city-of-madisonville-lactapp-2008.