Labouisse v. Orleans Parish School Bd.

757 So. 2d 866, 2000 WL 320673
Louisiana Court of Appeal·Decided March 15, 2000·No. 99-CA-1684·Published·Cited by 3 cases

Opinion

757 So.2d 866 (2000)

Eden LABOUISSE, Individually and as the Natural Tutrix of Her Minor Child, Winston Labouisse
v.
ORLEANS PARISH SCHOOL BOARD.

No. 99-CA-1684.

Court of Appeal of Louisiana, Fourth Circuit.

March 15, 2000.

*868 Joseph G. Albe, Metairie, Attorney for Plaintiff/Appellant, Eden Labouisse/Winston Labouisse.

Clare Jupiter, Bryan & Jupiter, New Orleans, Attorney for the Defendant/Appellee, Orleans Parish School Board.

Court composed of Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY and Judge ROBERT A. KATZ.

MURRAY, Judge.

Plaintiffs, Eden Labouisse and her son, Winston, appeal a judgment granted in their favor on the basis that the award is insufficient to compensate for the damages incurred. Additionally, they contend that the trial court erred in not awarding damages to Eden Labouisse under La. Civ. Code art. 2315.6. Defendants, the Orleans Parish School Board and its employee, Louis Landrum, also appeal claiming that the trial court erred in not finding Winston Labouisse and his playmate at fault for the accident. For the following reasons, we affirm.

FACTS:

Winston Labouisse and two other boys were playing during recess at Lusher Extension School on April 27, 1993. The three boys were attempting to move a tether ball pole from near a building further out into the yard. The pole was encased in a tire filled with cement, with additional cement on top, making the pole extraordinarily heavy. One of the boys lost his grip on the pole, which flew upward, striking Winston in the forehead. Winston was helped to the teacher's lounge where he rested on a cot until his mother arrived. His mother and sister, Kate, also a student at Lusher, took him to the emergency room at Children's Hospital, where he was examined and diagnosed with a concussion. Winston was discharged that evening. Upon awakening the next morning, Winston could not gain his balance to walk and was taken back to the emergency room.

Dr. Nancy Rogers, a neurosurgeon, was consulted about Winston's head injury. Her testing revealed problems with equilibrium and balance. Initially, she diagnosed him as having post-concussion syndrome and a closed-head injury, and advised Ms. Labouisse that Winston could experience headaches, cognitive problems and behavioral changes. After continued treatment of Winston, Dr. Rogers' final diagnosis was that Winston suffered from organic brain syndrome[1], a condition that causes personality changes, increased impulsivity, lack of emotional control and decreased memory.

Dr. R. Timothy Brown, a psychiatrist, first saw Winston in November of 1994 in the Children's Hospital emergency room. Winston's mother was summoned home by her youngest son because Winston was riding his bike incessantly in circles in the yard. She took him to Children's where it was determined that Winston had taken LSD earlier that day and was involved in a minor accident on his bike. After taking a medical history, and examining Winston, he also diagnosed organic brain syndrome. He observed Winston to have a flatness of emotional expression, sudden outbursts of temper, problems with sequencing and processing emotional cues.

*869 Dr. Catherine Reichard, the neuropsychologist who performed two neuropsychological evaluations on Winston while he was an in-patient at the New Orleans Adolescent Hospital (NOAH), testified that the initial evaluation revealed a frontal lobe dysfunction, but the second evaluation performed one year later in November of 1995, showed much improvement. For example, Winston demonstrated more range of emotion, less memory problems, and the scores on the abstract thinking portion of the test were back to normal. He was still, however, demonstrating some difficulties in inhibiting responses and was still denying the severity of his problem.

DISCUSSION:

A. Plaintiffs' appeal:

In plaintiffs' first assignment of error, they claim that the trial court erred by awarding damages insufficient to compensate for the damages sustained. After a bench trial, the court awarded Winston a lump sum of $450,000, and awarded Eden $10,000 for loss of services and society and $9,747.04 for past medical expenses. Plaintiffs contend that the awards should have been $3,940,000 for Winston, and $310,000 for Eden.

Much discretion is accorded the trier-of-fact in fixing damage awards. Because of this vast discretion, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The initial inquiry to be made by this court is whether the damage award for the particular injuries suffered and their effects under the particular circumstances is a clear abuse of the "much discretion" of the trier-of-fact. Id. at 1260.

The record reflects that Winston suffered a large bruise to his forehead after being struck by the tether ball pole. One of his playmates estimated that he was unconscious for about five minutes, although other evidence suggests that it was for a much shorter period. He was treated at the emergency room, and released, returning the next day for a balance problem. After some additional testing, he was again sent home with instructions to rest. He missed approximately two weeks of school, but returned to complete the sixth grade.

In the fall of 1994, near the beginning of eighth grade, Winston ingested the hallucinogenic drug, LSD, and was hospitalized at NOAH for psychiatric testing and substance abuse counseling. At that time, it came to light that he had been experimenting with alcohol and marijuana in addition to the LSD. There was conflicting testimony about Winston's school performance, although the records confirm that his grades had declined from the sixth grade. However, he was still capable of passing the entrance examination, and was admitted to Benjamin Franklin High School for the ninth grade.

All of the doctors who testified agreed that Winston's psychological problems were related to his head injury. They also agreed, however, that there were many additional factors contributing to his behavior, including his drug abuse, the reappearance of his father into his life after many years of absence, and his father's eventual suicide.

The record also contains testimony of one of Winston's fifth grade teachers indicating that he was having some minor difficulties with organization, and was not performing to the best of his ability before the accident. Ms. Cunningham, who taught Winston in her social studies, science and gifted resource classes, described him as very intelligent but unmotivated, except when it was something he was really interested in such as art. The basis for her opinion was that Winston did not always study for tests, was disorganized, and demonstrated a lack of overall effort.

Dr. Ralph Chester, a board certified psychologist in both general and child psychology and a consultant for the Orleans Parish School Board, was consulted by the *870 administration at Lusher Extension School after Winston stayed away from home overnight early in 1994. Dr. Chester testified that Winston's mother told him that Winston started experiencing some change in his personality with occasional outbursts of anger, moodiness and irritability, in the fourth or fifth grade. Dr. Chester also obtained a school history from Ms. Petrosini, the social worker and child advocate at Lusher.

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Labouisse v. Orleans Parish School Bd., 757 So. 2d 866, 2000 WL 320673 (La. Ct. App. 2000).

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