FRANK TROMATORE, INDIVIDUALLY AND NO. 21-CA-551 ON BEHALF OF HIS DECEASED WIFE MARY TROMATORE, AND FIFTH CIRCUIT CHRIS TROMATORE COURT OF APPEAL VERSUS STATE OF LOUISIANA JEFFERSON PARISH HOSPITAL SERVICES DISTRICT NO. 2 D/B/A EAST JEFFERSON GENERAL HOSPITAL AND XYZ INSURANCE COMPANY
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 787-997, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
May 26, 2022
HANS J. LILJEBERG JUDGE
Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg
AFFIRMED HJL JGG SJW COUNSEL FOR PLAINTIFF/APPELLEE, FRANK TROMATORE, INDIVIDUALLY AND ON BEHALF OF HIS DECEASED WIFE MARY TROMATORE, AND CHRIS TROMATORE Matthew A. Mang Victoria H. Fabre
COUNSEL FOR DEFENDANT/APPELLANT, JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, D/B/A EAST JEFFERSON GENERAL HOSPITAL Matthew A. Sherman Walter R. Woodruff, Jr. Clark G. Warden Nicholas R. Varisco LILJEBERG, J.
This is an appeal taken from a judgment entered in a trip-and-fall suit.
Plaintiff, Frank Tromatore, tripped on a four-inch high concrete base of a light pole
located on the far side of a walkway leading from the emergency room at East
Jefferson General Hospital to the street. Following a bench trial, the trial court
entered judgment on May 19, 2021, in favor of plaintiff, Frank Tromatore, and
against defendants, Jefferson Parish Hospital Services District No. 2 d/b/a East
Jefferson General Hospital (“EJGH”) and LAMMICO Risk Retention Group, Inc.
(“LAMMICO”), in the amount of $200,000.00 in general damages and $73,021.43
in special damages. The trial court also awarded damages for loss of consortium to
Frank Tromatore on behalf of his deceased wife, Mary Tromatore, in the amount of
$5,000.00. Finally, the trial court entered judgment in favor of defendants and
against plaintiff, Chris Tromatore, on his claim for bystander damages under La.
C.C. art. 2315.6 for witnessing his father’s fall.1
On appeal, EJGH contends that the trial court erred 1) by finding the
concrete base was unreasonably dangerous and failing to find that it was an open
and obvious condition; 2) by finding EJGH had adequate notice of the condition;
and 3) by failing to assign a percentage of comparative fault to Frank Tromatore.
Plaintiffs filed an answer to the appeal arguing that the trial court’s awards for
general damages, as well as loss of consortium, were too low. Chris Tromatore
also contends in the answer to the appeal that the trial court erred by failing to
award him bystander damages under La. C.C. art. 2315.6. For reasons explained
more fully below, we affirm the trial court’s judgment on all grounds.
1 On August 16, 2021, the trial court subsequently granted LAMMICO’s motion for new trial and amended the May 19, 2021 judgment to also dismiss Frank Tromatore’s claims against LAMMICO, with prejudice, because the parties agreed that LAMMICO is not liable for awards that do not exceed EJGH’s $500,000 self-insured retention.
21-CA-551 1 FACTS AND PROCEDURAL HISTORY
On October 1, 2017, between approximately 5:00 p.m. and 6:00 p.m., Frank
Tromatore tripped and fell over the concrete base of a light pole as he was exiting
the EJGH emergency room. The walkway where Frank Tromatore fell is 280 feet
long from the door of the emergency room to the street and approximately nine
feet wide. It is located between a fence and a ramp that vehicles use to drive up to
the emergency room. The entire walkway between the wall and ramp is concrete.
A 20-foot light pole is located on the far right side of the walkway approximately
120 feet from the emergency room door. The base of the light pole is also
concrete. It is located five inches from the ramp and is 18 inches wide. The base
extends several inches further into the walkway than the light pole. The
photographs introduced into evidence by both plaintiffs and EJGH indicate that the
concrete surrounding the base, as well as the base itself, were darker than the
concrete in the center part of the walkway. Plaintiffs’ civil and structural
engineering expert, Donald A. Barnes, testified that the base and surrounding
concrete were darker because they were covered in dirt and black mold.
Mr. Tromatore testified that at the time he fell, it was still sunny outside, but
the sun was going down casting shadows from the ramp and the light pole onto the
walkway. Frank and his adult son, Chris Tromatore, had spent the day visiting
Mary Tromatore, who was receiving medical treatment in the intensive care unit.2
As they neared the area where the light pole was located, a couple was coming up
the walkway heading to the emergency room. Frank Tromatore testified that he
saw the light pole, but he did not see the base. He further testified that his right
foot made contact with the base and he fell and sustained a three-part proximal
humerus fracture to his shoulder. The injury required an open reduction internal
fixation surgery.
2 Mary Tromatore was Frank’s wife and Chris’ mother.
21-CA-551 2 Plaintiffs’ expert, Mr. Barnes, and EJGH’s expert in design and architecture,
E.W. Tregre II, both agreed that the walkway met all applicable building and
safety codes. Mr. Tregre testified that the width of the walkway exceeds the
minimum code requirements and provided ample space for pedestrian travel. As a
result, he opined that the base was not a trip hazard because it did not violate any
code requirements. Mr. Barnes testified, on the hand, that the base was located
within the walkway because the entire area between the ramp and fence was
concrete and therefore, invited pedestrians to walk where the base was located. He
further opined that because the base and surrounding concrete were both the same
dark color and hard to see, the base presented an unreasonably dangerous condition
because it was not painted a distinguishing color.
Clarence Millet, the Senior Director of Facilities Management at EJGH,
testified that approximately 2,500 to 3,000 pedestrians a month traverse the
walkway to enter and exit the emergency room. He also testified that the light pole
and base were installed approximately 45 years ago and EJGH had not received a
single complaint or notice of a prior incident involving the light pole or its base
during that time until plaintiffs filed this lawsuit. On cross-examination, Mr.
Millet agreed that it was difficult to distinguish the base from the walkway in the
pictures entered into evidence. He also recognized that EJGH used yellow paint to
warn of other potential trip hazards in the walkway located closer to the emergency
room exit.
Following the bench trial, the trial court found that the base was
unreasonably dangerous and not open and obvious, noting in particular that both
the base and surrounding walkway were covered in dirt and black mold, making
the base virtually indistinguishable from the surrounding walkway. The trial court
also found that EJGH had constructive notice of the unreasonably dangerous
condition. The trial court awarded Frank Tromatore $200,000.00 in general
21-CA-551 3 damages, $73,021.43 for past medicals and $5,000.00 for his late wife’s loss of
consortium. The trial court further entered judgment in favor of defendants and
against plaintiff, Chris Tromatore, denying his claim for bystander damages under
La. C.C. art. 2315.6.
EJGH filed a timely suspensive appeal, and plaintiffs responded with a
timely answer to the appeal.
LAW AND DISCUSSION
In order to prove a public entity is liable for damages caused by a thing, the
plaintiff must establish: (1) custody or ownership of the defective thing by the
public entity; (2) that the defect created an unreasonable risk of harm; (3) the
public entity had actual or constructive notice of the defect; (4) the public entity
failed to take corrective action within a reasonable time; and (5) causation. See La.
R.S. 9:2800; La. C.C. art. 2317; Hallal v. Eversmeyer, 20-263 (La. App. 5 Cir.
12/23/20), 309 So.3d 863, 867, writ denied, 21-103 (La. 3/9/21), 312 So.3d 584.
A court of appeal may not set aside a trial court’s factual findings absent
manifest error, or unless those findings are clearly wrong. Rosell v. ESCO, 549
So.2d 840, 844 (La. 1989). To reverse under the manifest error rule, an appellate
court must find from the record that there is no reasonable basis for the trial court’s
finding and that the record shows the finding to be manifestly erroneous. Stobart
v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). Where there is
conflict in the testimony, a trial court’s reasonable evaluations of credibility and
inferences of facts should not be disturbed upon review, even if they differ from
those of the appellate court. Hallal, 309 So.3d at 867.
On appeal, EJGH contends the trial court erroneously interpreted and
decided elements two (unreasonable risk of harm) and three (actual or constructive
notice) listed above.
21-CA-551 4 Unreasonable Risk of Harm/Open and Obvious
Whether a defect presents an unreasonable risk of harm must be determined
in light of the facts and circumstances of each particular case. Broussard v. State
ex. rel Office of State Bldgs., 12-1238 (La. 4/5/13), 113 So.3d 175, 183-84. Courts
have adopted a risk-utility balancing test to determine whether a condition is
unreasonably dangerous, wherein the trier of fact balances the gravity and the risk
of the harm against the individual and societal utility and the cost and feasibility of
repair. Id. at 184; Bufkin v. Felipe’s Louisiana, LLC, 14-288 (La. 10/15/14), 171
So.3d 851, 856. The Louisiana Supreme Court has synthesized the risk-utility
balancing test to a consideration of four pertinent factors: (1) the utility of the
complained-of condition; (2) the likelihood and magnitude of the harm, including
the obviousness and apparentness of the condition; (3) the cost of preventing the
harm; and (4) the nature of the plaintiff's activities in terms of societal utility or
whether the activities were dangerous by nature. Id.
We first address the second prong of the risk-utility inquiry, which focuses
on whether the dangerous or defective condition is obvious and apparent.
Generally, a defendant does not have a duty to protect against that which is
obvious and apparent. Broussard, 113 So.3d at 184. In order for a hazard to be
considered obvious and apparent, the hazard should be one that is open and
obvious to everyone who may potentially encounter it. Id. If the facts of a
particular case show that the condition complained of should be obvious to all, the
condition may not be unreasonably dangerous, and the defendant may owe no duty
to the plaintiff. Morange v. Troxler, 20-386 (La. App. 5 Cir. 10/27/21), 329 So.3d
1105, 1109.
An accident, alone, does not support the imposition of liability, particularly
considering the normal hazards pedestrians face while traversing sidewalks.
Creager v. Marrero Land and Improvement Association Limited, 21-322, pp. 5-6
21-CA-551 5 (La. App. 5 Cir. 2/23/22), 2022 WL 533881. A pedestrian has a duty to see what
should be seen and is bound to observe whether the pathway is clear. Hutchinson
v. Knights of Columbus, Council No. 5747, 03-1533 (La. 2/20/04), 866 So.2d 228,
234. An owner is not liable for an injury which results from a condition which
should have been observed by the individual in the exercise of reasonable care, or
which was as obvious to a visitor as it was to the owner. Id.; Handy v. City of
Kenner, 12-135 (La. App. 5 Cir. 6/28/12), 97 So.3d 539, 542.
EJGH argues that the trial court reversibly erred by finding the base of the
light pole was not open and obvious, and by further imposing a nonexistent legal
duty on EJGH to paint the concrete base a distinguishing color. EJGH argues that
Frank Tromatore admitted at trial that he saw the light pole well before he tripped
over the base, knew that the light pole would have a base which he should be wary
to avoid, and further admitted that the walkway was wide enough for safe travel.
EJGH contends that its expert also testified that the space for pedestrian travel
exceeded any code or ordinance requirement. Finally, EJGH argues that 2,500 to
3,000 pedestrians traverse the walkway every month and it had not received any
prior complaints regarding the base nor any reports of prior incidents in the past 45
years.
In their opposition, plaintiffs respond that EJGH is not arguing the trial court
was manifestly erroneous, but rather that the trial court should have accepted
EJGH’s interpretation of the evidence. Plaintiffs contend that EJGH’s arguments
merely demonstrate that two permissible views of the evidence exist, and a trial
court is not manifestly erroneous when it chooses one of the permissible views of
the evidence. Plaintiffs further argue that extensive evidence exists to support the
trial court’s conclusion that the base was not open and obvious. They contend that
the photographs introduced at trial indicate the concrete base is the same dark color
as the surrounding sidewalk. They cite to Frank Tromatore’s testimony indicating
21-CA-551 6 that he was paying attention to where he was walking, but did not see the concrete
base because it blended into the sidewalk. While plaintiffs’ expert, Mr. Barnes,
agreed that the walkway and location of the base did not violate any codes or
ordinances, he also testified that the base is located within the walkway and was
difficult to see because the base and surrounding walkway were black with mold.
Finally, plaintiffs cite to testimony from EJGH’s representative, Mr. Millet, where
he agreed that it was difficult to distinguish the base from the walkway in
photographs introduced into evidence. When questioned by the trial court, he
agreed that the base, as well as the sidewalk leading up to the base of the light pole,
were dark and dirty.
The trial court provided the following written reasons for its conclusion that
the base was not open and obvious and was unreasonably dangerous:
As shown by the photographs introduced at trial, the pedestal is four inches high and is virtually indistinguishable from the concrete walking surface surrounding the pedestal. (See P. Ex. A.) It is not painted bright yellow like the other trip hazards in and around the same walkway. Both the pedestal and the walkway are black with mold and dirt and appear to be the same color. Moreover, as shown in several of the photographs, the pedestal is often partially obstructed by shadows cast by the ambulance ramp and the light post. These photographs alone support a finding that the pedestal is not an open and obvious danger to pedestrians leaving the emergency room.
EJGH contends that this Court addressed a similar open and obvious
condition in Hallal, supra. In Hallal, the plaintiff went to EJGH for a doctor’s
appointment and tripped on an uneven portion of the sidewalk with a one-and-one
half height differential at the entrance of the building. The plaintiff testified that
when she tripped, she was looking at a man near the entrance of the building.
Following a bench trial, the trial court dismissed the plaintiff’s claims against
EJGH, finding that the plaintiff failed to prove that an unreasonable risk of harm
existed by a preponderance of the evidence. Contrary to EJGH’s argument, this
Court did not conclude on appeal that the deviation in the sidewalk was open and
21-CA-551 7 obvious and therefore, EJGH owed no duty. Rather, this Court agreed that the trial
court did not err when it determined that the plaintiff did not prove the existence of
an unreasonable risk of harm by a preponderance of the evidence and found that
EJGH did not have actual or constructive notice of the defect. Hallal, 309 So.3d at
867. This Court further observed that while there is no bright line rule, a height
differential of one-half to two inches between sidewalk sections had not been held
to be present an unreasonable risk of harm. Id. at 867-68, citing Casborn v.
Jefferson Par. Hosp. Dist. No. 1, 11-1020 (La. App. 5 Cir. 5/22/12), 96 So.3d 540.
EJGH also argues that the present matter is tightly aligned with our decision
in Hallal because Frank Tromatore admitted he was aware the light pole had a base
and failed to see what he should have seen. We disagree. The alleged defect at
issue in the present matter is not an uneven sidewalk with a one-and-one half inch
differential, but rather the four inch base of a light pole and a surrounding walkway
that were both a dark color due to black mold and dirt. The plaintiff in Hallal
admitted that she was looking at a man at the entrance of the building at the time of
the fall. Frank Tromatore testified that he was paying attention to where he was
walking, but did not see the base. Finally, in Hallal, this Court reviewed the trial
court’s determination of no unreasonable risk of harm under the manifest error
standard, and in the present matter this Court is considering the reverse
determination under the same standard.
Furthermore, as explained by our supreme court in Broussard, supra, the
relevant inquiry is not whether the plaintiff was aware of the alleged defect; rather,
in order to be open and obvious, the risk should be apparent to all who encounter
the dangerous condition. Id. at 188. “The focus on whether an alleged defect is
open and obvious is ‘on the global knowledge of everyone who encounters the
defective thing or dangerous condition, not the victim's actual or potentially
21-CA-551 8 ascertainable knowledge.’” Christiano v. S. Scrap Recycling, 13-595 (La. App. 5
Cir. 12/27/13), 131 So.3d 1059, 1064, quoting Broussard, 113 So.3d at 188.
Considering the foregoing, the trial court was not manifestly erroneous in
concluding that the concrete base was not an open and obvious condition to all
who encounter it. The trial court considered the evidence, including the
photographs and testimony, and determined that the base and surrounding walkway
were not open and obvious because they were virtually indistinguishable due to
their dark color caused by dirt and mold. The trial court also questioned the
reliability of EJGH’s testimony regarding the lack of prior incidents considering
that EJGH had no record of the current incident. Even though an alternative
permissible view of the evidence may exist as presented by EJGH, we find a
reasonable basis for the trial court’s determinations exist and therefore, cannot be
manifestly erroneous.
EJGH also contends that the trial court reversibly erred in finding that
plaintiffs met their burden to prove the base of the light pole was unreasonably
dangerous by imposing a legal duty on EJGH to paint the base a distinguishing
color. EJGH argues that in reaching this determination the trial court improperly
relied on the testimony of plaintiff’s expert engineer, Mr. Barnes, who stated that
the base should have been painted a distinguishing color when no law, code or
ordinance required the painting of the base.
We do not agree that the trial court found that the base created an
unreasonable risk of harm simply because EJGH did not paint the concrete base a
distinguishing color. EJGH’s argument ignores the trial court’s additional findings
and evidence outlined above, particularly regarding other trip hazards that were
marked in the walkway, as well as the mold and dirt, and shadows from the ramp
and light pole that rendered the base virtually indistinguishable from the walkway.
We also do not find that the trial court was manifestly erroneous by relying on the
21-CA-551 9 expert testimony offered by plaintiffs. Credibility determinations are for the trier
of fact, even as to the evaluation of expert witness testimony. Green v. K-Mart
Corp., 03-2495 (La. 5/25/04), 874 So.2d 838, 843. A fact-finder may accept or
reject the opinion expressed by an expert, in whole or in part. Id. In addition,
code compliance is merely one factor for the court to consider in determining the
existence of an unreasonable risk of harm, and does not alone relieve a defendant
of liability. See Calcagno v. Kuebel, Fuchs Partnership, 01-691 (La. App. 5 Cir.
11/14/01), 802 So.2d 746, 751.
Considering the forgoing, we do not find that the trial court was manifestly
erroneous in determining the light pole base at issue in this matter represented an
unreasonable risk of harm.
Notice of Unreasonably Dangerous Condition
EJGH next argues that the trial court committed reversible legal error by
placing the burden on EJGH to prove the absence of prior notice.
La. R.S. 9:2800(C) states that no person shall have a cause of action “against
a public entity for damages caused by the condition of things within its care and
custody unless the public entity had actual or constructive notice of the particular
vice or defect which caused the damage prior to the occurrence, and the public
entity has had a reasonable opportunity to remedy the defect and has failed to do
so.” Actual notice under La. R.S. 9:2800 has been found in cases where
complaints about the injury-causing defect were received by the proper authorities.
Perdomo v. City of Kenner, 18-156 (La. App. 5 Cir. 10/17/18), 258 So.3d 983, 992,
writ denied, 18-1860 (La. 1/18/19), 262 So.3d 288, and 18-1861 (La. 1/18/19), 262
So.3d 895. Constructive notice, on the other hand, is defined in La. R.S.
9:2800(D) as “the existence of facts which infer actual knowledge.” Constructive
notice can be found if the conditions which caused the injury existed for such a
period of time that those responsible, by the exercise of ordinary care and
21-CA-551 10 diligence, must have known of their existence in general and could have guarded
the public from injury. Perdomo, 258 So.3d at 992. Whether the public entity had
actual or constructive notice of a potential defect is a question of fact. Drury v.
Allstate Ins. Co., 11-509 (La. App. 5 Cir. 12/28/11), 86 So.3d 634, 639.
Contrary to EJGH’s arguments on appeal, the trial court did not shift the
burden and require EJGH to prove a lack of notice. The written reasons clearly
indicate that the trial court concluded EJGH had constructive notice: “With regard
to knowledge, the evidence supports a finding that defendants should have known
of the unreasonably dangerous condition.” [Emphasis added]. The trial court went
on to discuss that EJGH’s defense was that it had no prior complaints of similar
falls. However, the trial court questioned the reliability of this defense because
EJGH did not have an accident report or record despite testimony and hospital
records indicating that plaintiffs reported the fall to a nurse in the emergency room.
This analysis conducted by the trial court does not indicate a shift of the burden to
EJGH, but rather questioned the reliability of EJGH’s system for tracking prior
incidents. Further, in Broussard, 113 So.3d at 188, the Louisiana Supreme Court
recognized that the absence of prior reported injuries is not a bar to recovery.
The four-inch base has existed at EJGH for at least 45 years. EJGH’s
representative, Mr. Millet, testified that EJGH employees patrol the walkway on a
daily and even, hourly basis. The focus of the trial court’s conclusion with respect
to its determination that an unreasonable risk of harm existed is the dark color of
the base and surrounding walkway due to the accumulation of mold and dirt based
on the various photographs introduced by the parties. The accumulation
demonstrated in the photos indicates that the condition existed for a sufficient
period of time that it should have been discovered and remedied either by cleaning
the area or painting the base a distinguishing color. The trial court further
observed that EJGH painted other tripping hazards in the walkway a distinguishing
21-CA-551 11 yellow color without notice of prior incidents. Considering this evidence and the
entire record on appeal, we do not find manifest error in the trial court’s finding
that EJGH had constructive notice of the unreasonable risk of harm created by the
concrete base.
Comparative Fault
In its final assignment of error, EJGH argues, alternatively, that the trial
court erred by failing to assign any comparative fault to Frank Tromatore.
EJGH argues that Mr. Tromatore should have seen the base of the light pole and
failed to do so based on his admission that he was tired and upset from the
emotional experience of spending the prior 12 hours with his wife in the intensive
care unit. EJGH contends that these extenuating circumstances played a pivotal
role in Mr. Tromatore traversing the walkway without exercising proper care.
Plaintiffs argue in response that Mr. Tromatore testified that at the time he fell, he
was looking forward and paying proper attention. Plaintiffs further argue that the
evidence established that the base was difficult to see.
A trier of fact’s findings as to comparative fault are factual, and in the
absence of clear or manifest error, must be upheld on appeal. Woods v. Winn-Dixie
Montgomery, L.L.C., 17-707 (La. App. 5 Cir. 6/27/18), 251 So.3d 675, 683. Based
on Mr. Tromatore’s testimony that he was looking forward and paying attention at
the time he fell, as well as the evidence establishing that the base was difficult to
distinguish from the surrounding concrete, we find no manifest error in the trial
court’s decision to find EJGH solely at fault for the accident.
We next address plaintiffs’ assignments of error on appeal.3 In their answer
to the appeal, plaintiffs seek modification of the trial court’s judgment by
3 EJGH argues in its reply brief that plaintiffs abandoned the issues raised in their answer to the appeal because plaintiffs failed to brief these issues in their appellate brief. Plaintiffs provided extensive briefing regarding the issues they intended to raise in their answer to the appeal and adopted this extensive briefing in their appellate brief. Accordingly, we do not find that plaintiffs abandoned their appeal to modify the damages awarded by the trial court.
21-CA-551 12 increasing the general damages awarded to Frank Tromatore from $200,000.00 to
$400,000.00; increasing the $5,000.00 in damages awarded to Frank Tromatore on
behalf of his wife for loss of consortium to $15,000.00; and awarding bystander
damages to Chris Tromatore in the amount of $7,500.00.
General Damages
The trial judge has much discretion in fixing general damage awards, which
are damages which may not be fixed with pecuniary exactitude. Theriot v. Allstate
Ins. Co., 625 So.2d 1337, 1340 (La. 1993); Jackson v. Drachenburg, 19-345 (La.
App. 5 Cir. 1/8/20), 288 So.3d 289, 293. This Court reviews general damage
awards under an abuse of discretion standard. Id. In reviewing a general damages
award, the appellate court must consider the particular facts of the plaintiff’s
injuries, and the effects of those injuries on the particular plaintiff. Id. An
appellate court may not overturn an award for general damages unless it is so out
of proportion to the injury that it shocks the conscience. Id. Consequently, this
Court should rarely disturb an award of general damages. Id. Only after the
appellate court has determined that the trier of fact abused its discretion is a resort
to prior awards appropriate; the prior awards may be referred to only for the
purpose of determining the highest or lowest point, which is reasonably within that
discretion. Id.
Plaintiffs contend that the trial court’s award of $200,000.00 for general
damages to Frank Tromatore is abusively low. They argue that Mr. Tromatore
suffered a displaced comminuted (broken in several cases) three-part proximal
humerus fracture of his left shoulder. Following his evaluation in the emergency
room, Mr. Tromatore’s shoulder was in a sling and he was prescribed Vicodin for
pain. Several days later, Mr. Tromatore underwent an open reduction internal
fixation surgery performed by orthopedist, Dr. William Junius. He then began
eight months of physical therapy. Plaintiffs argue that prior to his fall, Mr.
21-CA-551 13 Tromatore, now 77 years old, had no pain or problems in his shoulder. Mr.
Tromatore testified that he now suffers from pain in his shoulder depending on
how he uses his arm and has some difficulties lifting and grabbing things with his
left shoulder. However, he testified that he is not taking any medications and does
not suffer from constant pain. He explained that the pain depends on how he uses
his arm.
Considering the particular facts of Mr. Tromatore’s injury and the effects of
the injury he described at trial, as well as the trial court’s vast discretion, we do not
find that the trial court abused its discretion in awarding $200,000 in general
damages. We will not disturb the trial court’s award.
Loss of Consortium
Plaintiffs next argue that the trial court abused its discretion by awarding
only $5,000.00 for the loss of consortium claim brought on behalf of Frank
Tromatore’s wife. In granting the award, the trial court recognized that prior to
his injury, Frank Tromatore visited his wife daily at the nursing home where she
resided. For several months after the injury, he was unable to visit his wife and
after he recovered, he was still unable to visit her every day. His wife passed away
one month after he completed physical therapy. Mr. Tromatore contends that the
award should be increased to $15,000.00 because his wife relied on him for his
help, support and affection. EJGH argues that the trial court’s award is not out of
proportion to damages awarded in prior, similar cases.
An award for loss of consortium damages is reviewed under an abuse of
discretion standard. Baack v. McIntosh, 20-1054, p. 14 (La. 6/30/21), 2021 WL
2679825. After reviewing the record and arguments of the parties, we do not find
that the trial court abused its discretion with respect to the amount of damages
awarded for the loss of consortium experienced by Mr. Tromatore’s wife prior to
her death.
21-CA-551 14 Bystander Damages
Finally, Chris Tromatore argues that the trial court erred by denying his
claim for bystander damages pursuant to La. C.C. art. 2315.6. This article provides
that certain individuals, including a child, can recover for severe, debilitating and
foreseeable mental anguish or emotional distress suffered as a result of viewing an
event causing injury to another:
B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant’s position to suffer serious mental anguish or emotional distress from the experience, and the claimant’s mental anguish or emotional distress must be severe, debilitating, and foreseeable. Damages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article. [Emphasis added].
While recognizing that his father’s accident was upsetting, the trial court
denied Chris Tromatore’s claim for bystander damages because it did not find that
his emotional distress was severe, debilitating and foreseeable. Chris Tromatore
contends that the trial court erred by denying his claim because he was in shock as
a result of viewing his father’s accident and he has re-lived the experience in his
mind. EJGH argues that the trial court correctly denied the claim because Chris
Tromatore did not seek any medical treatment for his alleged mental anguish and
worked at EJGH for a year after the accident as a respiratory therapist.
We do not find evidence of severe, debilitating and foreseeable mental
anguish or emotional distress suffered by Chris Tromatore in the record.
Accordingly, the trial court was not manifestly erroneous by finding in favor of
EJGH and dismissing Chris Tromatore’s claim for bystander damages.
DECREE
For the foregoing reasons, we affirm the trial court’s May 19, 2021
judgment.
AFFIRMED
21-CA-551 15 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 26, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-551 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE) MATTHEW A. MANG (APPELLEE) MATTHEW A. SHERMAN (APPELLANT) WALTER R. WOODRUFF, JR. RAYMOND R. EGAN, III (APPELLANT) (APPELLANT)
MAILED VICTORIA H. FABRE (APPELLEE) CLARK G. WARDEN (APPELLANT) ATTORNEY AT LAW NICHOLAS R. VARISCO (APPELLANT) 400 POYDRAS STREET ATTORNEYS AT LAW SUITE 2300 ONE GALLERIA BOULEVARD NEW ORLEANS, LA 70130 SUITE 1100 METAIRIE, LA 70001