Le v. Nitetown, Inc.

72 So. 3d 374, 10 La.App. 3 Cir. 1239, 2011 La. App. LEXIS 885, 2011 WL 2848152
CourtLouisiana Court of Appeal
DecidedJuly 20, 2011
DocketNo. 10-1239
StatusPublished
Cited by6 cases

This text of 72 So. 3d 374 (Le v. Nitetown, Inc.) 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
Le v. Nitetown, Inc., 72 So. 3d 374, 10 La.App. 3 Cir. 1239, 2011 La. App. LEXIS 885, 2011 WL 2848152 (La. Ct. App. 2011).

Opinions

THIBODEAUX, Chief Judge.

_JjThe plaintiffs, Richard Le and Edward Prince (collectively referred to as the “plaintiffs”), were injured by bouncers employed by the defendant, Nitetown, Inc. (Nitetown). The jury found that Nite-town’s conduct was intentional in part and negligent in part and awarded damages to both plaintiffs. The jury further found that Mr. Le was twenty percent negligent in causing his injuries. In its judgment, the trial court reduced the damage awards to the plaintiffs for the comparative negligence of Mr. Le. Both plaintiffs appeal the reduction in their damages. Finding that the trial court erred as a matter of law in reducing the plaintiffs’ damages where the defendant is found liable for intentional tort, we reverse the judgment of the trial court. We further reverse the trial court’s assessment of part of the court costs and fees to Mr. Le. We amend the jury awards to both plaintiffs.

I.

ISSUES

We must decide:

(1) whether the trial court erred in reducing the plaintiffs’ recovery by the percentage of fault attributed to one plaintiff, where the defendant is found to have committed an intentional tort;
(2) whether the trial court abused its discretion in assessing court costs to [376]*376the plaintiffs in proportion to the comparative fault percentages; and,
(3) whether the amount of the plaintiffs’ general damages are subject to review and, if so, whether they are abusively low.

_b.IL

FACTS AND PROCEDURAL HISTORY

On October 1, 2006, Mr. Le and Mr. Prince incurred injuries at a lounge called Nitetown in Lafayette, Louisiana. A jury found that bouncers employed by Nitetown had used excessive force upon the plaintiffs, that the bouncers’ conduct was intentional, and that the plaintiffs were entitled to general and special damages for their injuries. The jury further found that a percentage of Nitetown’s fault was in negligence for the improper training of its employees, and that Mr. Le was partially negligent in causing his injuries.1 The jury found no fault of any kind or degree on the part of Mr. Prince. After stating at trial that there would be no reduction of Mr. Le’s recovery for his comparative negligence, the trial court subsequently issued a judgment reducing Mr. Le’s damage award by twelve and one-half percent.2 The trial court also entered judgment reducing Mr. Prince’s recovery by twenty percent, due to the negligence of Mr. Le.3

The trial court further assessed twelve and one-half percent of the court costs and trial fees to Mr. Le in the Le judgment, and twenty percent of the court costs Land fees to Mr. Le in the Prince judgment, even though there was one trial.4 The plaintiffs appeal the reduction of their damage awards and the imposition of court costs and fees under the trial court’s application of comparative negligence. They also submit that the jury’s awards for general damages were abusively low.

III.

STANDARD OF REVIEW

A trial court’s findings of fact are reviewed under the manifest error or clearly wrong standard of review. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Reversible errors of law are reviewed de novo. Rosell v. ESCO, 549 So.2d 840 (La.1989).

IV.

LAW AND DISCUSSION

Mr. Le and Mr. Prince contend that the trial court erred in reducing their damages by the percentage of negligence that the jury allocated to Mr. Le. We agree. Pursuant to La.Civ.Code art. 2323, [377]*377the comparative fault of all persons contributing to an injury must be determined, but where part of the damage is the result of the fault of an intentional tortfeasor, the recovery of the injured person shall not be reduced because of his own negligence. Specifically, Article 2323 states:

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.

La.Civ.Code art. 2323 (emphasis added).

Here, the jury specifically found that the employees of Nitetown, the bouncers, used excessive force against Mr. Le and Mr. Prince, and that the bouncers committed the intentional tort of battery upon the plaintiffs. The jury further found that the conduct of Mr. Le was not intentional, but that Mr. Le was twenty percent negligent in causing his injuries. Under the clear meaning of La.Civ.Code art. 2323(C), there is no reduction in Mr. Le’s award where he was the victim of an intentional tort, and it is of no moment that the intentional tort-feasor was also found negligent in some degree. Comparing the negligent fault of an injured party with the intentional actions of the party inflicting the injuries is no longer appropriate. This was not the intent of the legislature when it rewrote La.Civ.Code art. 2323 in 1996, specifically adding subsection (C) prohibiting a reduction of the plaintiffs damages in intentional tort scenarios.

In November of 1994, shortly before the legislature’s 1996 revision to Article 2323, the Louisiana Supreme Court articulated its agreement on the differing nature of certain kinds of conduct and the difficulty of comparison:

|fi[A]s Dean Prosser has explained it, intentional wrongdoing “differs from negligence not only in degree but in kind, and in the social condemnation attached to it.” Prosser and Keeton on the Law of Torts § 65, at p. 462 (5th Ed.1984).... Because we believe that intentional torts are of a fundamentally different nature than negligent torts, we find that a true comparison of fault based on an intentional act and fault based on negligence is, in many circumstances, not possible.

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Bluebook (online)
72 So. 3d 374, 10 La.App. 3 Cir. 1239, 2011 La. App. LEXIS 885, 2011 WL 2848152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/le-v-nitetown-inc-lactapp-2011.