STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-0328
HAROLD THIBODEAUX
VERSUS
MELINDA TRAHAN, ET AL
************
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20075620 HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and, Jimmie C. Peters, Judges.
AFFIRMED AS AMENDED.
Rusty Galloway Britney L. Hebert GALLOWAY JEFCOAT, L.L.P. P. O. Box 61550 Lafayette, LA 70596-1550 (337) 984-8020 COUNSEL FOR PLAINTIFF/APPELLANT: Harold Thibodeaux
L. Lane Roy Elizabeth A. Hunt Pries and Roy P. O. Drawer 94-C Lafayette, LA 70509 (337) 237-6062 COUNSEL FOR DEFENDANTS/APPELLEES: Melinda Trahan and Lafayette Parish School Board Antonio Ferachi Attorney at Law P. O. Box 4064 Baton Rouge, LA 70821-4064 (225) 219-2080 COUNSEL FOR DEFENDANTS/APPELLEES: Secretary of the Department of Revenue, State of Louisiana
Cassie L. Willis Attorney at Law 903 W. University Ave. Lafayette, LA 70506 (337) 234-5149 COUNSEL FOR DEFENDANTS/APPELLEES: Lafayette Parish School Board, Sales and Use Tax Division PETERS, J.
This personal injury litigation arises from an October 18, 2006 vehicle
accident which occurred in Duson, Lafayette Parish, Louisiana. The plaintiff,
Harold Thibodeaux, brought suit against Melinda Trahan and her employer, the
Lafayette Parish School Board, to recover damages he sustained in the accident.
Following a bench trial, the trial court found that Mr. Thibodeaux has sustained
$70,500.00 in general damages and $73,218.41 in past and future medical
expenses. The trial court also assigned sixty percent of the fault in causing the
accident to Ms. Trahan and assigned the remaining forty percent to Mr.
Thibodeaux. For the following reasons, we affirm the trial court‘s finding of joint
fault in causing the accident, but adjust the percentages of fault, and we amend the
general damage award and affirm that award as amended.
DISCUSSION OF THE RECORD
The accident at issue in this litigation occurred in the parking lot of Thib‘s
Corner Grocery Store (Thib‘s Corner) which is located on the northwest corner of
Richfield Road and Fourth Street in Duson, Louisiana. Richfield Road is a two-
lane highway running north and south in the vicinity of the accident, and Fourth
Street intersects Richfield Road from the west. However, it does not extend
through Richfield Road to the east because a ditch runs generally parallel to the
highway on the east side. In fact, all of the connecting streets in the vicinity of the
accident intersect Richfield Road from the west and do not extend east of the
highway because of the ditch.
On October 18, 2006, Ms. Trahan was on her afternoon bus route
transporting children home from school.1 As she traveled north on Richfield Road,
a recreational vehicle (RV) driven by Mr. Thibodeaux and owned by Kayla Duhon 1 It is not disputed that Ms. Trahan was operating within the course and scope of her employment with the Lafayette Parish School Board as a special education bus driver at the time of the accident. entered the highway in front of her from Third Street and proceeded north on
Richfield Road. However, Mr. Thibodeaux did not continue north on the highway.
Instead, after traversing a little over one-half of the block between Third and
Fourth Streets, he turned left into the parking lot at Thib‘s Grocery. Ms. Trahan,
who was approaching the RV from the rear, turned her bus into the parking lot as
well and the vehicles collided therein. Mr. Thibodeaux sustained an injury to his
right knee in the accident.
With regard to how the accident occurred, the evidence presented to the trial
court was externally conflicting and often internally inconsistent. After hearing all
of the evidence, the trial court issued oral reasons for judgment recognizing the
conflicting nature of the testimony, determining the amount of Mr. Thibodeaux‘s
damages, and finding both parties at fault in causing the accident. After the ruling
was reduced to judgment, Mr. Thibodeaux appealed, asserting that the trial court
erred in finding him partially at fault in causing the accident and erred in awarding
him inadequate general damages.
OPINION
Mr. Thibodeaux‘s suit is a general negligence action under La.Civ.Code art.
2315(A), which provides that ―[e]very act whatever of man that causes damage to
another obligates him by whose fault it happened to repair it.‖ In a general
negligence action, the plaintiff is required to prove five separate elements:
(1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant‘s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant‘s substandard conduct was a cause in fact of the plaintiff‘s injuries (the cause-in-fact element); (4) the defendant‘s substandard conduct was a legal cause of the plaintiff‘s injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element).
La Pac Mfg., Inc. v. TCM Mfg., Inc., 06-748, p. 6 (La.App. 3 Cir. 12/6/06), 944 So.2d 831, 835-36, writ denied, 07-42 (La. 3/9/07), 949 So.2d 445 (citation 2 omitted).
Pursuant to the manifest error standard of review, a trial court‘s findings of
fact will not be set aside in the absence of manifest error or unless they are clearly
wrong. Where there is conflict in the testimony, inferences of fact should not be
disturbed upon review even though the reviewing court may feel its own
evaluations and inferences are reasonable. Rossell v. ESCO, 549 So.2d 840
(La.1989); Stobart v. Dept. though DOTD, 617 So.2d 880 (La.1993). In order for a
reviewing court to reverse a factfinder‘s factual determinations, the reviewing
court must find that a reasonable factual basis does not exist in the record for the
finding and that the record establishes that the finding is clearly wrong or
manifestly erroneous. Stobart, 617 So.2d 880.
Apportionment of Fault Issue
Although a number of individuals testified to having seen all or part of the
events leading up to the accident, the trial court was left with numerous conflicting
versions of how the accident occurred. From the testimony and exhibits presented,
the trial court made specific findings of fact upon which it based its determination
of fault. In its oral reasons for judgment, the trial court found Mr. Thibodeaux at
fault for having ―pulled out in front of Ms. Trahan while driving an RV in the rain
while she was driving a school bus.‖ With regards to Ms. Trahan, the trial court
concluded that she was at fault because she ―should have been a bit more careful
when she saw the defendant pull out in front of her.‖ Specifically, the trial court
concluded that she ―slammed on her brakes . . . and by doing so, [she] began to
lose control of the bus.‖
About the only thing not in conflict in the testimony presented was the
physical layout of the area surrounding the accident scene. Richfield Road
intersects three other streets from the west on the south side of its intersection with 3 Fourth Street. These are appropriately named Third, Second, and First Streets, and
the distance between each of these intersections is approximately 300 feet.
Additionally, a railroad crossing traverses Richfield Road immediately to the south
of the First Street intersection, although the distance between that crossing and the
First Street intersection is not made clear in the record.
Mr. Thibodeaux testified that he came to a complete stop at the Third Street
intersection. He admitted seeing the school bus approaching from the south on
Richfield Road, but testified that when he began pulling onto Richfield Road, the
school bus was just crossing the railroad tracks, or almost three blocks away. He
traveled 165 to 175 feet north on Richfield Road and turned into the Thib‘s Corner
parking lot. Before making his turn into the parking lot, he came to a complete
stop to allow a southbound vehicle on Richfield Road to pass. He testified that
before making his turn, he activated his left turn signal and looked behind for
oncoming traffic. He testified that he did not see the school bus approaching from
the rear and concluded that she had turned on one of the intersecting streets behind
him. According to Mr. Thibodeaux, after he entered the parking lot the school bus
struck the RV approximately two feet from the back of the camper and continued
to move forward along the driver‘s side.
At trial, Ms. Trahan testified that when she crossed the railroad tracks, she
observed no traffic coming out of the side streets onto Richfield Road. In fact, she
testified that she was approximately half way between First and Second Street
when she first saw the RV. At that time, it was pulling onto Richfield Road from
Third Street. She estimated her speed when she first saw the RV to be twenty to
twenty-five miles per hour. According to Ms. Trahan, she engaged her brakes to
slow the school bus and then released the brake to avoid losing control of the bus.
She testified at trial that at no time did she slam on her brakes or lose control of the 4 bus. However, she also acknowledged at trial that in her discovery deposition she
stated that she had slammed on her brakes, lost control, and the bus began
swerving. According to Ms. Trahan‘s trial testimony, she only reapplied her
brakes when she began to pass the RV near Thib‘s Corner. She did so then
because she observed a vehicle coming toward her from the north on Richfield
Road. In fact, she testified that she applied her brakes for the purpose of turning
into the Thib‘s Corner parking lot because she had determined that she did not
have adequate time to pass the RV. According to Ms. Trahan, both she and Mr.
Thibodeaux pulled into the parking lot at the same time.
Not only did Ms. Trahan‘s trial testimony conflict with various statements
made in her discovery deposition, but it conflicted significantly with the statement
she gave the investigative officers immediately after the accident. In fact, the trial
court relied on this statement in its oral reasons for judgment as the best
explanation as to ―how the accident occurred.‖ In that initial statement, Ms.
Trahan asserted the following:
I was driving my children home after school on S[outh] Richfield when a camper pulled out directly in the front of me. I never saw him stopped at the stop sign. I just saw him pull out and immediately come to a stop to turn into the store on the left. I swerved left to avoid hitting him from behind after seeing there was no on coming [sic] traffic. He turned into the parking lot at the same time and hit my bus with his rearview mirror. We collided in a parking lot and no injuries were incurred.
Other lay witnesses on the issue of fault included Stephen M. Leger, the
driver of a vehicle traveling north on Richfield Road behind the school bus;
Michael Benoit, a Thib‘s Corner customer; Marsha Hale, a passenger on Ms.
Trahan‘s bus; Perry Alleman, a pedestrian on Third Street; and Officer Gerald
Credeur, the law enforcement officer who investigated the accident. The testimony
of these witnesses did not resolve the factual conflicts.
5 Mr. Leger testified that he turned onto Richfield Road from First Street after
the school bus had traversed both the railroad track and the First Street
intersection. As he traveled north behind the school bus, he observed that Mr.
Thibodeaux had activated the RV‘s left turn signal. According to Mr. Leger, the
RV turned into the parking lot first and was more than one-half into the lot when
the school bus began its turn. He testified that he observed the school bus strike
the back portion of the RV. Although he was directly behind Ms. Trahan‘s school
bus, he never saw her engage her brakes. However, despite the fact that it was a
generally accepted fact that the accident occurred during a rain event, Mr. Leger
did not recall that it was raining at the time.
Mr. Benoit observed the accident from inside Thib‘s Corner. According to
Mr. Benoit, the school bus and the RV entered the parking lot at almost the same
time with the RV being slightly ahead. He saw the RV come to a complete stop,
and only heard the impact thereafter. Additionally, he acknowledged that his
vision of the entire scene was impaired by the internal structure of the store.
Immediately after the accident, Ms. Hale gave a written statement to Officer
Credeur to the effect that she was attempting to assist a student secure his seat belt
and saw nothing until ―[Ms. Trahan] pulled to avoid the accident & the camper
kept coming & collided with her.‖ At trial, she testified that she looked forward as
the school bus traversed the railroad tracks and observed the RV at the Third Street
intersection. However, she did not see it pull onto Richfield Road. Instead, she
suggested that after the bus passed over the railroad track, she began working with
the student‘s seat belt and saw nothing until Ms. Trahan ―evidently said
something‖ to cause her to look up. When she looked up, she saw the RV pulling
out in front of the school bus. However, in her discovery deposition she testified
that she did not see the RV until Ms. Trahan swerved to enter the parking lot, and, 6 at that point, the RV was immediately in front of the school bus. In her deposition
and at trial, she testified that the school bus did not swerve before the turn into the
parking lot and that Ms. Trahan never slammed on her brakes. At the same time,
she testified at trial that she might not have noticed the school bus swerving earlier
because she was so involved with the children on the bus. With regard to the
sequence of arrival in the parking lot, Ms. Hale testified that both vehicles arrived
at almost the same time with the school bus being slightly ahead. She testified that
the RV‘s mirror hit the school bus.
Mr. Alleman testified that he was standing in front of his house on Third
Street when he observed Mr. Thibodeaux‘s RV approach the street‘s intersection
with Richfield Road. According to Mr. Allman, Mr. Thibodeaux did not come to a
complete stop before entering onto Richfield Road. However, Mr. Alleman also
had difficulty with the weather conditions on the day of the accident in that he had
previously testified in his discovery deposition that the weather was dry at the time
of the accident. Additionally, he acknowledged at trial that he had previously lived
with Ms. Duhon, the owner of the RV.
Officer Credeur‘s testimony was to the effect that had the road surface been
dry and if Ms. Trahan was between First and Second Streets as she attested, there
was no question in his mind but that she should have been able to stop before
striking the RV after it turned onto Richfield Road. He had no opinion concerning
the effect of the wet conditions he encountered on that day. He did testify,
however, that Ms. Trahan did not tell him on the day of the accident that her
vehicle had swerved before the collision, nor did she tell him that she had
attempted a passing maneuver.
Each side in the litigation offered the testimony of an accident reconstruction
expert. Vernon Tekell, Jr., the owner and principal engineer for Dean Tekell 7 Consulting, L.L.C. from Lafayette, Louisiana, testified for Mr. Thibodeaux. Based
on the physical layout of the area surrounding the accident scene and assuming the
appropriate reaction times and drag coefficient, Mr. Tekell concluded that either
Ms. Trahan was traveling faster than twenty to twenty-five miles per hour or she
was distracted by something. Otherwise, according to Mr. Tekell, she would have
more than enough time to engage her brakes in a normal manner and stop the
school bus before striking the RV.
The defendant‘s expert, Mike Jones, Jr., the president of Stress Dynamics,
Inc. and a retired professor emeritus in civil engineering from Texas A&M
University, College Station, Texas, agreed with Mr. Tekell‘s conclusion with
regard to Ms. Trahan‘s ability to stop before striking Mr. Thibodeaux‘s RV from
the rear. In fact, Mr. Jones acknowledged that had the highway been frozen rather
than simply wet, Ms. Trahan would still have had adequate time to stop. Despite
his agreement with Mr. Tekell‘s opinion concerning Ms. Trahan‘s ability to stop
behind the RV, Mr. Jones still opined that the accident was caused totally by Mr.
Thibodeaux‘s fault. He reached this conclusion by assuming that Ms. Trahan had
entered the parking lot before the oncoming southbound vehicle passed Thib‘s
Corner, and that Mr. Thibodeaux entered after the southbound vehicle had passed.
With regard to the statutory duty imposed on Ms. Trahan in approaching a
vehicle from the rear, La.R.S. 32:81(A) provides that ―[t]he driver of a motor
vehicle shall not follow another vehicle more closely than is reasonable and
prudent, having due regard for the speed of such vehicle and the traffic upon and
the condition of the highway.‖ If a following motorists strikes the forward vehicle
from the rear, he or she is presumed to have breached the duty imposed by La.R.S.
32:81(A). Mart v. Hill, 505 So.2d 1120 (La.1987).
8 A following motorist may, however, rebut the presumption by demonstrating that he or she had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created a hazard which the following motorist could not reasonably avoid. The following motorist bears the burden of showing he was not negligent.
Menard v. Federated Mut. Ins. Co., 05-85, pp. 3-4 (La.App. 3 Cir. 6/22/05), 906 So.2d 746, 750, writ denied, 05-1925 (La. 3/10/06), 925 So.2d 506 (citations omitted).
As previously stated, in its oral reasons for judgment, the trial court
concluded that Ms. Trahan ―slammed on her brakes . . . and by doing so, [she]
began to lose control of the bus‖ as she approached the RV from the rear. Given
the evidentiary record before us, we find no manifest error in that factual finding.
Rossell, 549 So.2d 840; Stobart, 617 So.2d 880. Additionally, the fact witnesses
and experts who testified established by a preponderance of the evidence that her
action in forcefully applying the brakes was completely unnecessary as she had
adequate time to come to a complete stop behind the RV if necessary. That is to
say, Ms. Trahan failed to keep her school bus under control, failed to closely
observe the RV in front of her, and failed to maintain a safe distance between her
school bus and the RV. Furthermore, nothing in the record supports her argument
that Mr. Thibodeaux negligently created a hazard by pulling out in front of her
onto Richfield Road. Thus, Ms. Trahan breached the duty imposed upon her by
La.R.S. 32:81(A).
The manner in which the trial court addressed the fault issues precluded it
from addressing any negligence that might be imposed on the parties due to their
individual actions immediately before and including the actual impact of the two
vehicles. Ms. Trahan suggested that she was required to abort her attempt to pass
Mr. Thibodeaux and to turn into the parking lot because of an oncoming vehicle in
the opposite lane. Assuming this to be true, Ms. Trahan violated the duty imposed 9 on her by La.R.S. 32:75 in that she began passing Mr. Thibodeaux at a point where
the opposite lane was not ―free of oncoming traffic for a sufficient distance ahead
to permit such overtaking and passing to be completely made without interfering
with the safe operation of any vehicle approaching from the opposite direction or
any vehicle overtaken.‖ However, this factual scenario is not supported by the
bulk of the evidence as almost all of the other witnesses were consistent in stating
that both the RV and the school bus entered the parking lot at basically the same
time. Mr. Thibodeaux established that more probably than not, he waited for the
southbound vehicle to pass and then turned into the parking lot. This is consistent
with Ms. Trahan following too close and having to take a last-second evasive
maneuver by turning into the parking lot at the same time as Mr. Thibodeaux after
the southbound vehicle passed by them. This version of the facts also supports Mr.
Thibodeaux‘s assertion that he failed to see Ms. Trahan‘s vehicle before he turned
into the parking lot. Simply stated, she had entered his ―blind spot‖ on the side of
his vehicle.
Given the record before us, we find that Ms. Trahan breached the duties
imposed on her as described herein; that those duties were owed to the general
public, including Mr. Thibodeaux; and that the breach of these duties was both a
cause-in-fact and legal cause of Mr. Thibodeaux‘s harm. Thus, we find no error in
the trial court‘s assessment of fault against Ms. Trahan in causing the accident.
Turning to Mr. Thibodeaux, the trial court‘s reasons for judgment establish
that the trial court found him at fault because he pulled out in front of an oncoming
school bus in the rain. We do not find that this statement alone imposes fault on
Mr. Thibodeaux.
Louisiana Revised Statutes 32:123(B) provides in pertinent part that ―the
driver shall yield the right of way to all vehicles . . . which are approaching so 10 closely on said highway as to constitute an immediate hazard.‖ (Emphasis added).
In this case, Ms. Trahan was approximately 450 feet from the Third Street
intersection when Mr. Thibodeaux entered Richfield Road, and both experts who
testified (even her own expert) were of the opinion that 450 feet was more than
enough stopping distance under the conditions that existed—even without taking
into consideration the uncontested fact that Mr. Thibodeaux had traveled an
additional 160 to 170 feet down the highway before impact. Therefore, Mr.
Thibodeaux‘s action in pulling onto Richfield Road did not constitute an
immediate hazard and the trial court erred in assigning him a portion of fault for
that reason alone.
However, when we turn to the particulars of the impact in the parking lot,
we do find that Mr. Thibodeaux was partially at fault in causing the accident.
Louisiana Revised Statutes 32:104(A) provides in pertinent part that ―[n]o person
shall . . . turn a vehicle to enter a private road or driveway . . . unless and until such
movement can be made with reasonable safety.‖ In this case, Mr. Thibodeaux
testified that he signaled his turn and looked behind for oncoming traffic.
However, while he may have looked in his rear view or side mirror before making
the left turn, it is clear that he failed to observe what he should have seen – that
Ms. Trahan had already begun a passing maneuver before he turned. Thus, he
failed to ascertain that the left turn could be made with reasonable safety. Given
the record before us, we find that Mr. Thibodeaux breached the duty imposed on
him when making a left turn into a private drive; that this duty was owed to the
general public, including Ms. Trahan; and that the breach of this duty was both a
cause-in-fact and legal cause of the accident. Thus, for different reasons than those
asserted by the trial court, we find that Mr. Thibodeaux should be assessed with
some of the fault in causing the accident. 11 In determining fault allocation, the supreme court laid out five factors which
might influence the percentage of fault assigned between parties:
(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidence by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 973 (La.1985).
Considering the findings stated above, we find that the majority of the fault
in this instance should be allocated to Ms. Trahan. Although both parties‘ fault
arose from inadvertence on their part, we find that the majority of the fault should
rest with Ms. Trahan as she was in a better position, as the following vehicle, to
prevent the accident from happening. This accident would not have occurred had
she stopped the bus within the adequate stopping distance existing between her and
the RV and had she noticed the oncoming southbound vehicle before attempting to
pass the RV. Accordingly, we allocate twenty percent of the fault to Mr.
Thibodeaux and the remaining eighty percent to Ms. Trahan.
Quantum Issue
In his appeal, Mr. Thibodeaux also asserts that the trial court erred in
awarding him an inadequate amount for general damages
―General damages are those which may not be fixed with pecuniary exactitude; instead, they ‗involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.‘‖ Duncan v. Kansas City S. Ry. Co., 00-66, p. 13 (La. 10/30/00), 773 So.2d 670, 682, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651 (2001) (quoting Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir. 1993)). In considering whether the award of general damages is excessive, we are guided by the decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 12 U.S. 1114, 114 S.Ct. 1059 (1994), wherein the supreme court noted that ―the discretion vested in the trier of fact is ‗great,‘ and even vast, so that an appellate court should rarely disturb an award of general damages.‖ Under Youn, ―[t]he initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‗much discretion‘ of the trier of fact.‖ Id. at 1260. Only after the initial inquiry is answered in the affirmative should the appellate court increase or reduce the award. Id.
Jones v. Centerpoint Energy Entex, 11-2, 11-3, pp. 16-17 (La.App. 3 Cir. 5/25/11), 66 So.3d 539, 552.
According to Mr. Thibodeaux, he was still applying the brakes to the RV
when the collision occurred in the parking lot. The impact caused his right knee to
twist into the steering column of the RV. He did not seek medical treatment
immediately after the accident, but by that same evening, the knee had begun to
cause him serious pain. He sought medical treatment the day after the accident at a
Crowley, Louisiana hospital. According to Mr. Thibodeaux, his knee was swollen
and throbbing from pain. The medical team at the hospital took x-rays of the knee,
placed it in a brace, and released him to return home.
Mr. Thibodeaux next sought medical treatment from Dr. Thomas J.
Montgomery, a Lafayette, Louisiana orthopedic surgeon. Based on the findings
from a December 6, 2006 MRI, Dr. Montgomery concluded that Mr. Thibodeaux
had sustained a torn anterior cruciate ligament (ACL) and medial meniscus. When
physical therapy did not resolve the pain, Dr. Montgomery surgically repaired the
torn ACL and meniscus on February 15, 2007. However, Mr. Thibodeaux
continued to suffer problems with the knee despite undergoing additional extensive
physical therapy. An April 9, 2008 MRI revealed a possible ACL tear, a medial
meniscal tear, and moderate chondromalacia. Dr. Montgomery recommended a
second surgery, but at trial Mr. Thibodeaux had yet to submit himself to the doctor
13 for the surgery. According to Mr. Thibodeaux, he wanted to undergo the surgery,
but he had no health insurance and could not afford to pay for the surgery.
Mr. Thibodeaux testified that after the surgery his knee continued to give
him significant pain, which he rated as eight on a scale of one to ten. The post-
surgery physical therapy gave him some temporary relief, but he continued to
experience pain and a popping sensation in the knee. He testified that he has
undergone cortisone shots in his knee for relief and that he takes anti-inflammatory
medication, uses a rubbing cream, and wears a knee brace.
According to Mr. Thibodeaux, his working ability has been affected by his
injury because he is unable to lift as much as previously and he can no longer stoop
down while working. His favorite pastime before the accident was riding his
motorcycle. He rode almost every weekend and liked attending motorcycle rallies.
However, his knee injury has drastically limited that activity and he now finds that
he is able to ride his motorcycle no more than once a month.
In its oral reasons, the trial court stated that it was awarding Mr. Thibodeaux
$1,500.00 per month for the forty-seven months between the accident and the day
of trial, for a total award of $70,500.00 for his pain and suffering. However, this
amount only represents an award for Mr. Thibodeaux‘s past pain and suffering.
Because the trial court accepted as fact that Mr. Thibodeaux will require future
surgery by awarding future medical expenses for that surgery, we find that it was
error for the trial court not to award him damages for his future pain and suffering.
Based on the supreme court‘s holding in Ryan v. Zurich American
Insurance, Co., 07-2312 (La. 7/1/08), 988 So.2d 214, we are only allowed to
increase the award to the lowest amount reasonably within the trier of fact‘s
discretion. ―In adjusting the award, we refer to prior awards in similar cases to
determine the lowest point of an award within that discretion. Coco v. Winston 14 Indus., Inc., 341 So.2d 332 (La.1976).‖ Baltazar v. Wolinski, 10-757, p. 14
(La.App. 3 Cir. 12/8/10), 53 So.3d, 591, 600.
In Dawson v. City of Bogalusa, 95-824 (La.App. 1 Cir. 12/15/95), 669 So.2d
451, the first circuit awarded a plaintiff $110,000.00 in general damages for
injuries she sustained after stepping in a pothole. The accident aggravated her
degenerative arthritis in her knee, resulted in arthroscopic surgery on that knee to
repair a tear in the posterior horn of the knee cartilage, and will require future knee
replacement surgery. Plaintiff also suffered a severe ankle sprain, a nerve injury
between her toes, permanent partial disability, and depression.
In Stockstill v. C.F Industries, Inc., 94-2072 (La.App. 1 Cir. 12/15/95), 665
So.2d 802, the first circuit affirmed an award of $150,000.00 in pain and suffering
to a plaintiff who suffered a torn ACL and a sprained medial collateral ligament,
underwent surgical repair of the tear, suffered a thirty-five percent permanent
impairment, and will likely require a total knee replacement.
In Trueman v. City of Alexandria, 01-1130 (La.App. 3 Cir. 5/15/02), 818
So.2d 1021, this court increased a general damage award from $50,000.00 to
$125,000.00, for a plaintiff who fell after stepping in a water meter box. The
plaintiff suffered a medial meniscus tear and an aggravation of his degenerative
arthritis. In addition to surgery to repair the meniscus tear, the plaintiff would also
require a total knee replacement.
In Jackson v. Cockerham, 05-320 (La.App. 4 Cir. 5/10/06), 931 So.2d 1138,
the fourth circuit affirmed a general damage award of $300,000.00 to a plaintiff
who suffered a torn meniscus and ACL, underwent arthroscopic surgery, and then
a total knee replacement as a result of a bus accident.
After reviewing these awards and the evidence presented at trial, we
conclude that the lowest amount that the trial court could have awarded Mr. 15 Thibodeaux for his past, present, and future pain and suffering is $110,000.00.
Accordingly, we amend the trial court‘s judgment to reflect an award of
$110,000.00 in general damages.
DISPOSITION
For the foregoing reasons, we amend the judgment of the trial court to
allocate twenty percent fault to Mr. Thibodeaux and eighty percent fault to Ms.
Trahan. We further amend the trial court judgment to increase Mr. Thibodeaux‘s
general damage award for pain and suffering from $70,500.00 to $110,000.00. We
assess costs of this appeal to Melinda Trahan and the Lafayette Parish School
Board.