Knox v. Calcasieu Parish Police Jury

900 So. 2d 1128, 4 La.App. 3 Cir. 1497, 2005 La. App. LEXIS 1090, 2005 WL 954644
CourtLouisiana Court of Appeal
DecidedApril 27, 2005
DocketNo. 2004-1497
StatusPublished
Cited by2 cases

This text of 900 So. 2d 1128 (Knox v. Calcasieu Parish Police Jury) 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
Knox v. Calcasieu Parish Police Jury, 900 So. 2d 1128, 4 La.App. 3 Cir. 1497, 2005 La. App. LEXIS 1090, 2005 WL 954644 (La. Ct. App. 2005).

Opinions

| THIBODEAUX, Chief Judge.

The plaintiff brought suit, individually and on behalf of his minor daughter, who suffered a laceration to her leg when she fell into a culvert while visiting a relative’s mobile home. The trial court assessed fault for the child’s injuries equally between the mobile home owner, who cared for the lawn surrounding the culvert, and the mobile home park owner, who leased the property to the mobile home owner. The court awarded $7,500.00 in general damages and $1,381.13 in medical expenses, but did not approve a surgical scar revision. The plaintiff appeals, alleging that the mobile home owner, who is a non-party, should not have been assessed any responsibility and that the damage award was insufficient. Because the evidence indicates the scar revision is necessary, we amend and, as amended, affirm. We award $8,530.00 in anticipated future surgical expenses and increase the general damages award to $12,500.00.

I.

FACTS

On the afternoon of January 18, 2002, six-year-old Taylor Knox and her mother, Jackie Knox, visited the mobile home of Ms. Knox’s brother, Harry Hooper, and his wife, Stephanie Hooper. Taylor, her sibling, and other similarly aged children were playing in the yard in front of the mobile home, while Ms. Knox and Ms. Hooper were inside. Taylor entered the mobile home crying and told her mother that, while walking along the driveway to the mobile home, she slipped into the ditch and cut her left leg on a jagged piece of the exposed end of the metal culvert under the driveway.

Her mother brought Taylor immediately to the Women and Children’s | {.Hospital in Lake Charles, where the four-centimeter laceration was treated and received nine stitches. She was instructed on proper care for the wound and released that evening. Taylor visited her pediatrician, Dr. Myriam Sayed, on January 21, January 25, February 1, and February 4, 2002. Dr. Sayed removed her stitches and referred her to the Sulphur Surgical Clinic, where she was seen by Dr. Walter Ledet and Dr. A. Kent Seale, both general surgeons. On February 2, 2002, she saw Dr. Ledet whose notes state:

I saw Taylor in the office today. Local wound care is the only option we have at this point. A skin graft may be necessary in the future.

Taylor was also seen by Dr. Seale, whose records indicate:

I saw Taylor Knox in the office today. The laceration to the middle third of the left lower extremity is healing by secondary intention. There is good escar [sic] which will eventually dislodge revealing a healed tissue beneath. The patient will scar. Should a scar revision be necessary, I would wait at least a year prior to pursuing.

Mrs. Knox testified that she told Dr. Seale that she was concerned because she felt that the skin in the center of the scar was thin, but that he told her that nothing could be done with the scar for at least another year. She testified that she was still concerned, and on September 15, 2003, she took Taylor to see Dr.‘ Darrell Henderson, a plastic surgeon. Dr. Henderson provided a detailed report, in which he stated in his summary:

The patient has a markedly disfiguring scar on her left leg. A surgical scar [1131]*1131excision and revision can be done to improve the patient’s left leg scar, but I believe she needs to reach an age where it is bothersome to her so she can put up with the very troublesome after course of total immobilization of the left leg for a period of six months. Cost estimates have been outlined.

Rodney Knox filed suit, individually and on behalf of Taylor, on January 14, 2003, against the Calcasieu Parish Police Jury and against the owner of the mobile |shome park, Jesse James, and his insurer, American Southern Home Insurance Co. The trial court found in favor of the plaintiffs and assessed fault for Taylor’s injuries as follows: no comparative fault was assessed to Taylor; no fault was assessed to the Calcasieu Parish Police Jury; fifty percent of the responsibility for the injuries was assessed to Harry Hooper, who was not a party to the suit; and fifty percent of the responsibility was assessed to Jesse James, as owner of the mobile home park in which the culvert" was located. Regarding damages, the court accepted the assessment of Dr. Seale, and specifically rejected Dr. Henderson’s recommendation. Further, the trial court did award $500.00 as the fee for the medical examination performed by Dr. Henderson. The court then awarded $1,381.13 for medical costs and $7,500.00 for pain and suffering. From this judgment, the plaintiff appeals.

II.

ISSUES

We will consider whether trial court erred:

1) in the apportionment of fault;
2) in awarding zero damages for the scar revision surgery; and,
3) in awarding $7,500.00 for general damages.

III.

LAW AND DISCUSSION

Apportionment of Fault

The plaintiff alleges that the trial court erred in assessing fifty percent of responsibility for Taylor’s injuries to her uncle, Harry Hooper, who owned the mobile home' and rented property on which the culvert was situated. The plaintiff argues that Mr. Hooper should not have had any responsibility assigned to him | ¿because he neither caused the damage to the culvert, nor had any duty to inspect or warn the mobile home park owner or the Calcasieu Parish Policy Jury of the defect. The plaintiff asserts in his brief:

[Tjhere is no duty on a person who has knowledge of a defective condition to report it to the party responsible for correcting it absent certain exceptions not relevant to this case, i.e., if the person had created the defect and failed to report it or the person had some particular duty to report.

The defendants, however, suggest that Mr. Hooper did have a duty to report the condition of the culvert because he had custody, or garde, of the culvert and thus a “legal responsibility to keep his things in good condition to avoid harming others.” The defendants assert that Mr. Hooper had actual control over the premises, including the culvert, and derived benefits from it so that “he was in the better position to detect, evaluate and eliminate the risk of harm arising in the thing and ... his utter failure to do so was a breach of duty under the facts of this case.”

In its written reasons for judgment, the trial court first determined that neither Taylor nor the Calcasieu Parish Police Jury was at fault in causing her injuries. However, the trial court did find Mr. James responsible, noting that he clearly [1132]*1132owned the ditch in question and that he admitted to walking the mobile park daily to check for dangerous conditions. Mr. James had owned the property for nineteen years, and the trial court concluded that “he should have known of [the condition of the culvert] and could have taken steps to prevent the injuries.” Therefore, the court found that Mr. James bore some of the responsibility for Taylor’s injuries; however, the court continued as follows:

The reason this court says “James bears some responsibility” is that this court does not believe James should bear all responsibility. The child’s uncle, Hooper, testified that in the 9 years that he resided there, the condition of the culvert was the same when he moved in and when he left.

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Bluebook (online)
900 So. 2d 1128, 4 La.App. 3 Cir. 1497, 2005 La. App. LEXIS 1090, 2005 WL 954644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knox-v-calcasieu-parish-police-jury-lactapp-2005.