John Preston v. Certain Underwriters at Lloyd's London and Pac Housing Group, LLC

• Court: Louisiana Court of Appeal
• Decided: January 22, 2024
• Docket: 2023-CA-0277
• Status: Published

Opinion

JOHN PRESTON * NO. 2023-CA-0277

VERSUS * COURT OF APPEAL CERTAIN UNDERWRITERS * AT LLOYD'S LONDON AND FOURTH CIRCUIT PAC HOUSING GROUP, LLC * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-08681, DIVISION “J” Honorable D. Nicole Sheppard ****** Judge Rosemary Ledet ****** (Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge Nakisha Ervin-Knott)

Megan C. Kiefer Christopher M. Short Nat G. Kiefer, Jr. KEIFER & KIEFER 2310 Metairie Road Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLANT

Stephen Michael Gele' Dylan T. Leach SMITH & FAWER, L.L.C. 201 St. Charles Avenue Suite 3702 New Orleans, LA 70170

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED January 22, 2024 RML TFL NEK

This is a personal injury suit. The plaintiff—John Preston (“Mr. Preston”) —

tripped over a subsurface irrigation pipe located on the grounds of his apartment

complex, which was owned by GMF-Preservation of Affordability Corp, operated

by PAC Housing Group (“PAC”), and insured by Certain Underwriters at Lloyd’s

London, LLC (collectively “Defendants”). Following a bench trial, the trial court

awarded Mr. Preston $5,000 in general damages; $4,830 in past medical expenses;

and no lost wages. From this judgment, he appeals. For the reasons that follow, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 19, 2019, Mr. Preston filed suit against Defendants for damages

resulting from an accident at the Parc Fontaine apartment complex, which is

owned, operated, and insured by Defendants. Mr. Preston alleged that he tripped

and fell over an exposed subsurface irrigation pipe located in a grassy area of the

apartment complex. As a result of the fall, Mr. Preston sprained his right ankle,

which required about seven weeks of physical therapy. Mr. Preston, who works as

a film lighting technician on movie sets, was unable to work for about ten weeks –

seventy days – due to his injury.

1 At trial, Mr. Preston called David Pertuit (“Mr. Pertuit”) as an expert witness

to provide an analysis of the scene of the accident. Mr. Preston also called Ms.

Raquel Black (“Ms. Black”), who was PAC’s regional property manager for the

Parc Fontaine apartment complex.

At the conclusion of trial, the court allocated fault 70% to PAC and 30% to

Mr. Preston. Further, the trial court awarded general and special damages, as

outlined elsewhere in this opinion. This appeal followed.

DISCUSSION

Although Mr. Preston assigns three errors on appeal, we frame the issue

presented as whether the trial court erred in allocating fault and awarding

damages.1 Defendants answered the appeal. In their answer, Defendants assigned

as error the trial court’s ruling granting Mr. Preston’s motion to strike Edward

Carrick as an expert witness and its allocation of fault. We divide our analysis into

the following three parts: (i) striking of expert witness; (ii) allocation of fault; and

(iii) damage award. Because a different standard of review governs each of these

parts, we set forth the standard separately.

I. Striking of Expert Witness

Trial courts in Louisiana have broad discretion when regulating pre-trial

discovery, which discretion will not be disturbed on appeal absent a clear showing

of abuse. See Hamilton v. Nat. Union Fire Ins. Co., 22-0106, pp. 7-8 (La. App. 4

Cir. 11/9/22), 351 So.3d 829, 835 (citing Moak v. Illinois Cent. R. R. Co., 93-0783

1 On appeal, Mr. Preston assigns as error the following:

1. The trial court erred when it failed to award Mr. Preston his past lost wages. 2. The trial court erred in assigning Mr. Preston 30% comparative fault. 3. The trial court erred by only awarding Mr. Preston $5,000 in general damages.

2 (La. 1994), 631 So.2d 401, 406; Folds v. Red Arrow Towbar Sales, 378 So.2d

1054, 1057 (La. App. 2d Cir.1979)).

Defendants argue that the trial court abused its discretion in granting Mr.

Preston’s motion to strike Mr. Carrick as an expert witness. The trial court’s ruling

does not rise to the level of abuse of discretion. Defendants waited until August 10,

2022, three years after suit was filed, to disclose Mr. Carrick as a witness. By

contrast, Mr. Preston provided Mr. Pertuit’s report to the Defendants in April 2021.

While the original pre-trial schedule was disrupted by the COVID-19 pandemic,

Defendants had time to engage an expert for trial. Taking into account a court’s

discretion over pre-discovery matters coupled with the amount of time that elapsed

here, we cannot concluded that the trial court abused its discretion in granting Mr.

Preston’s motion to strike.

II. Allocation of Fault

A trial court’s allocation of fault is a question of fact. See Amos v. Taylor,

51,595, p. 3 (La. App. 2 Cir. 9/27/17), 244 So.3d 749, 752 (citation omitted). The

trial court’s factual findings are subject to the manifest error standard of review.

See Jenkins v. Fanguy, 05-0383, pp. 4-5 (La. App. 4 Cir. 11/15/06), 946 So.2d 201,

204 (citing Cenac v. Public Access Water Rights Ass’n, 02-2660 (La. 6/27/03), 851

So.2d 1006, 1023).

Further, the Louisiana Supreme Court has held that for a factfinder’s

findings to be reversed, the appellate court must find from the record that a

reasonable factual basis for the findings does not exist and that the record

establishes that the findings are clearly wrong. See Parish Nat. Bank v. Ott, 02-

1562, pp. 7-8 (La. 2/25/03), 841 So.2d 749, 753-54 (quoting Stobart v. State

Through DOTD, 617 So.2d 880, 882-83 (La.1993)). The issue to be resolved by In

3 the reviewing court is not whether the trier of fact is right or wrong but whether the

trier of fact’s conclusion was a reasonable one. Id. The appellate court may not

reverse, even if convinced that had it been sitting as the trier of fact, it would have

weighed the evidence differently. Id.

Comparative fault in Louisiana is governed by La. C.C. art. 2323.2

Regarding determinations of comparative fault, the trier of fact shall consider both

the nature of the conduct of each party and the extent of the causal relation

between the conduct and the damages claimed. See Watson v. State Farm Fire &

Cas. Ins. Co., 469 So.2d 967, 974 (La.1985). Further, the Louisiana Supreme Court

has also laid out the following factors that may influence the degree of fault

allocated to a party:

(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

2 Louisiana Civil Code Article 2323 provides:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

4 extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Id. Moreover, when a defendant asserts comparative fault as an affirmative

defense, the defendant bears the burden of proof by a preponderance of the

evidence that the other party's fault was a cause-in-fact of the damage being

complained about. Dupree v. City of New Orleans, 99-3651, p. 19, n.13 (La.

8/31/00), 765 So.2d 1002, 1015.

Here, Mr. Preston contends that the trial court erred in allocation 30% fault

to him. Based on our review of the record, we cannot conclude that the trial court’s

allocation of fault between the parties was manifestly erroneous.

At trial, Mr. Pertuit testified that the irrigation pipe was defective because it

was meant to be below ground because its exposure above the surface was a

tripping hazard. Further, Ms. Black testified that management was aware that

residents of the apartment complex frequently walked across the grassy area in

which the irrigation pipe was located. She further agreed with Mr. Preston’s

assertion that the grounds keeping staff’s job duties included ensuring that

subsurface irrigation pipes stayed below the ground. After reviewing a photograph

of the scene of the accident, Ms. Black agreed that if she had seen the pipe in that

condition, she would have directed someone to add soil to correct the problem.

Through the testimonies of Ms. Black and Mr. Pertuit, Mr. Preston showed

that the irrigation pipe was not properly submerged beneath the surface and that its

exposure constituted a tripping hazard. Defendants, on the other hand,

demonstrated that the area in which the pipe was located was not a proper walkway

for Mr. Preston.

5 Regarding allocation of fault, Defendants argue that the trial court erred in

failing to account for the open and obvious nature of the exposed pipe as they did

not owe Mr. Preston a duty to protect him from an open and obvious hazard. In

Farrell v. Circle K. Stores, Inc., 22-00849 (La. 3/17/23), 359 So.3d 467, the

Louisiana Supreme Court held that whether a condition is open and obvious is

embraced within the breach of the duty element of the duty/risk analysis. It is not a

doctrine barring recovery, but only a factor of the risk of the risk/utility balancing

test. Id. at p.12, 359 So.3d at 478. Defendants’ argument is no longer a valid

defense to the duty element of negligence under current Louisiana jurisprudence.

Thus, Defendants did not demonstrate that the trial court was clearly wrong in

rejecting this argument.

Based on our review of the record, we cannot conclude the trial court’s

allocation of fault was manifestly erroneous.

III. Damage Awards

Here, the trial court awarded two types of compensatory damages –

special and general. Special damages are defined as “those which either

must be specially pled or have a ‘ready market value,’ i.e. the amount of

damages supposedly can be determined with relative certainty.” Wainwright

v. Fontenot, 00-0492, p. 5 (La. 10/17/00), 774 So.2d 70, 74. A plaintiff is

required to prove special damages by a preponderance of the evidence. Mack

v. Wiley, 07-2344, p. 13 (La. App. 1 Cir. 5/2/08), 991 So.2d 479, 489. The

standard of review applicable to an award of special damages is the manifest

error standard. Kaiser v. Hardin, 06-2092, pp. 11-12 (La. 4/11/07), 953

So.2d 802, 810.

6 Lost wages are a form of special damages, i.e., those which can be

established to a reasonable mathematical certainty. Williams v. State Farm

Mut. Auto. Ins. Co., 20-248, p. 15 (La. App. 5 Cir. 2/17/21), 314 So.3d 1010,

1021; Simon v. Auto. Club Inter-Ins. Exch., 20-156, p. 21 (La. App. 5 Cir.

10/13/21), 329 So.3d 1072, 1087.

General damages are defined as “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 Railway Co., 00-0066,

p. 13 (La. 10/30/00), 773 So.2d 670, 682. For that reason, general damage

awards are reviewed under the “much discretion” standard of La. C.C. art.

1999, which provides “[w]hen damages are insusceptible of precise

measurement, much discretion shall be left to the court for the reasonable

assessment of these damages.” See also La. C.C. art. 2324.1 (providing that

“[i]n the assessment of damages in cases of offenses, quasi offenses, and

quasi contracts, much discretion must be left to the judge or jury”); Cone v.

National Emergency Services, Inc., 99-0934, p. 8 (La. 10/29/99), 747 So.2d

1085, 1089 (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257

(La.1993) (holding that an abuse of discretion standard applies to the review

of general damage awards)).

Mr. Preston argues that the trial court erred in failing to award any lost

wages to him. He also argues that the trial court’s general damages award

was abusively low for the injuries he suffered. We separately address both

arguments.

7 a. General Damages Award

Recently, the Louisiana Supreme Court provided a new rule for the

consideration of prior awards to determine whether a trial court has abused

its discretion. In Pete v. Boland Marine & Mfg. Co. LLC, 23-00170, p. 2 (La.

10/20/23), ___ So.3d ___, ___, 2023 WL 6937381, the Supreme Court

explained the new rule as follows:

The inherently subjective nature of the abuse of discretion standard in the context of reviewing general damages awards compels that some measure of objectivity be incorporated into the determination of an award’s reasonableness, so that there is some standard for comparison. We now hold that an appellate court must consider relevant prior general damages as guidance in determining whether a trier of fact’s award is an abuse of discretion.

Moreover, if an abuse of discretion is found, the court is to then also

consider those prior awards to determine the highest or lowest point which is

reasonably within that discretion. Id. at p. 10, ___ So.3d at ___, 2023 WL

6937381 at *6. (citing Jones v. Basket Market Stores, Inc., 22-00841, p. 16

(La. 3/17/23), 359 So.3d 452, 464).

The factors to be considered in assessing quantum of general damages

for pain and suffering are severity and duration. See Willis v. Noble Drilling

(US), Inc., 11-598, p. 19 (La. App. 5 Cir. 11/13/12), 105 So.3d 828, 845

(citation omitted). Thus, this Court is obligated to consider both the facts

contained in the record and prior damage awards in cases similar to the

instant matter.

At trial, Mr. Preston testified that he was not medically cleared to return to

work for seventy days following the accident. He also provided medical reports

and a deposition transcript of his treating physician establishing that he suffered a

8 grade III right ankle sprain as a result of the fall. Mr. Preston’s treatment plan

required about seven weeks of physical therapy.

To support his argument, Mr. Preston cites Levine v. Allstate Insurance Co.,

17-0896 (La. App. 4 Cir. 4/18/18), 243 So.3d 1286. Mr. Preston’s reliance on

Levine is misplaced. The injuries suffered by the plaintiff in Levine included

surgery, wound debridement, and a skin graft. The facts of this case are

distinguishable.

In other cases involving a plaintiff with injuries similar to Mr.

Preston’s injuries, Louisiana courts have not found an abuse of discretion

when the plaintiff was awarded $2,500 in general damages per month of

treatment. See Joseph v. Houston, 04-350 (La. App. 5 Cir. 10/12/04), 886

So.2d 1133 (finding that the trial court did not abuse its discretion in

awarding plaintiff $2,500 in general damages per month of chiropractic

treatment); see also Prejeant v. Gray Ins. Co., 15-87 (La. App. 5 Cir.

9/23/15), 176 So.3d 704 (affirming trial court’s award of $2,000 in general

damages per month for soft tissue injuries). Thus, the trial court did not

abuse its discretion in awarding Mr. Preston $5,000 in general damages for

seven weeks of treatment.

b. Lost Wages

Mr. Preston contends that this Court should review the issue of failure

to award lost wages under the de novo standard because the trial court

committed legal error by employing an incorrect burden of proof in its

evaluation of this claim. This argument is unpersuasive.

As noted elsewhere in this opinion, lost wages are a form of special

damages. The standard of review applicable to an award of special damages

9 is the manifest error standard. Kaiser v. Hardin, 06-2092, pp. 11-12 (La.

4/11/07), 953 So.2d 802, 810. As further explained below, Mr. Preston did

not provide sufficient evidence to establish a prima facie case for lost wages.

To recover for lost wages, a plaintiff must prove that he would have

been earning wages but for the accident in question. See Burch v. SMG,

Schindler Elevator Corp., 14-1356, p. 13 (La. App. 4 Cir. 4/7/16), 191 So.3d

652, 662 (citing Boyette v. United Servs. Auto Ass’n, 00-1918, p. 3 (La.

4/3/01), 783 So.2d 1276, 1279). While a trial court has broad discretion in

assessing awards for lost earnings, there must be a factual basis in the record

for the award. See Driscoll v. Stucker, 2004-0589, p. 29 (La. 1/19/05), 893

So.2d 32, 53 (citation omitted). For purposes of determining damages, the

amount of lost earnings needs not be proved with mathematical certainty,

but by such proof as reasonably establishes the claim; and such proof may

consist only of the plaintiff’s own testimony. Id. (citation omitted).

Mr. Preston described his work as “contingent on his connections”

and explained that he usually obtains work by sending out text messages to

his contacts. He also responded in the affirmative when asked if he would

describe his job as “gig” work. Due to the impromptu nature of Mr.

Preston’s work, he was unable to provide a specific job that he would have

had during the time he was medically unable to work.

Here, Mr. Preston’s reliance on Glover v. Preece, 54,198 (La. App. 2

Cir. 3/9/22), 335 So.3d 495, is misplaced. In Glover, the plaintiff was

employed at the time of the accident; and the court calculated the amount of

past lost wages from her weekly earnings multiplied by the approximately

thirteen paychecks she did not receive as a result of the accident. No similar

10 evidence was provided by Mr. Preston. As such, the facts here are

Mr. Preston, by his own admission, has a volatile employment, with

varying periods of inactivity during the year. He did not provide a particular

job that he would have been working at the time of the accident. Also, no

particular wage amounts from a specific job were offered as evidence, only a

range of averages of what Mr. Preston usually earned based on his tax

records from 2018 and 2019. Thus, the trial court had a reasonable factual

basis for denying the lost wage claim; and the court did not abuse its

discretion.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED