STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-28
MR. & MRS. JONATHAN CHATELAIN, ET AL
VERSUS
RODNEY RABALAIS, ET AL.
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 98-5912-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE
JOHN B. SCOFIELD JUDGE*
Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield, Judges.
AFFIRMED IN PART, REVERSED IN PART AND RENDERED.
Daniel G. Brenner P. O. Box 11590 Alexandria, LA 71315-1590 Counsel for Defendant-Appellant Rodney Rabalais
Angelo Joseph Piazza, III P. O. Box 429 Marksville, LA 71351 Counsel for Plaintiffs-Appellees Mr. & Mrs. Jonathan Chatelain, Amanda Chatelain, Alesha Chatelain and Vincent Chatelain SCOFIELD, Judge*.
This is a legal malpractice case filed against Rodney Rabalais, an attorney
practicing in Marksville, Louisiana. Plaintiffs had engaged Rabalais to represent them
in a tort claim against Patrick Brouillette but before Rabalais filed the lawsuit, the
claim against Brouillette had prescribed.
THE TRIAL COURT PROCEEDINGS
The underlying claim against Brouillette arose from an incident which occurred
on July 2, 1997. On that date, in the early morning hours, Jonathan and Lauren
Chatelain and their three children, Alesha, Amanda and Vincent, were awakened by
the sound of a gun or guns being fired directly into their house. Brouillette, who had
wrecked his automobile in the vicinity of the Chatelain home near Marksville,
Louisiana, approached the Chatelain home, presumably for the purpose of
commandeering a Chatelain vehicle. As he approached, he began shooting at the
house.1 Upon hearing the gunfire, Lauren and the children retreated to the back of the
house. Jonathan armed himself and began returning Brouillette’s fire. In the
exchange of gunfire, Brouillette was hit, wounded and immobilized, bringing to an
end the shooting incident.
Brouillette was arrested, tried and sentenced to jail for the crimes he had
committed upon the Chatelains and their property. The Chatelains engaged Rabalais
to pursue their civil remedies against Brouillette. Rabalais failed to file a lawsuit on
or before July 2, 1998, resulting in the case against Brouillette prescribing.
* John B. Scofield, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. 1 At the trial Brouillette, testified that because of his consumption of drugs and alcohol that night, he had no recollection of what had transpired. Jonathan then engaged the Chatelain’s current attorney to pursue a malpractice
claim against Rabalais. On November 24, 1998, a civil action was filed against
Rabalais on behalf of Mr. and Mrs. Chatelain and their three children. Later, Lauren
Alesha and Vincent, were allowed to withdraw from the lawsuit. On October 7, 1999,
Lauren, Alesha and Vincent petitioned the court to re-enter the lawsuit, but eventually,
the renewed claims of Lauren and Alesha were dismissed on the basis of prescription.
Vincent was allowed to rejoin the lawsuit. Accordingly, when this matter went to trial,
the Plaintiffs were Jonathan, Amanda and Vincent.
At the trial, Rabalais did not dispute his allowing the Chatelains’ claim against
Brouillette to prescribe. The damages claimed by the Plaintiffs fall into two major
categories: First, they claim those damages that they would have recovered had they
gone to trial against Brouillette; and second, they independently claim damages
against Rabalais for the emotional injuries they allegedly sustained as a result of his
actions and inactions.
The verdict form submitted to the jury consisted of eleven interrogatories. The
jury returned a verdict, finding that as a result of the actions of Brouillette, Jonathan
sustained general damages of $45,000.00 and special damages of $5,000.00, and that
Amanda and Vincent each sustained general damages of $20,000.00 and special
damages of $5,000.00.
The jury also found that Rabalais had deviated below the standard of the care
required of an attorney, the jury awarding each Plaintiff the identical amount that had
been awarded due to the actions of Brouillette. This resulted in a total judgment of
$100,000.00 being awarded to Jonathan and $50,000.00 awarded each to Amanda and
Vincent. Rabalais moved the court for a judgment notwithstanding the verdict or,
alternatively, for a new trial. Both motions were denied. Rabalais suspensively
appealed the Judgment of the trial court and Plaintiffs answered the appeal seeking
an increase in the damages awarded them.
ISSUES ON APPEAL
Given that Rabalais is not contesting liability, the only issues on appeal are the
various elements of damages awarded to the Plaintiffs.
THE DAMAGE ISSUES IN GENERAL
The law provides that “To prove a claim for legal malpractice a plaintiff must
prove: (1) there was an attorney-client relationship; (2) the attorney was negligent and
(3) that negligence caused plaintiff some loss.” Beis v. Bowers, 94-0178 (La.App. 4
Cir. 01/19/95), 649 So. 2d 1094, writ denied, 95-429 (La. 3/30/95), 651 So.2d 847,
citing Scott v. Thomas, 543 So. 2d 494 (La.App. 4 Cir. 1989) and Evans v. Detweiler,
466 So. 2d 800 (La.App. 4 Cir. 1985). See also William E. Crawford, 12 Louisiana
Civil Law Treatise--Workers' Compensation § 15.23 (2000). Additionally, because
legal malpractice is a tort, damages for mental anguish may be awarded in a legal
malpractice action. Vallier v. Louisiana Health Systems, Inc., 98-834 (La.App. 3 Cir.
12/9/98), 722 So.2d 418, writ denied, 738 So.2d 587 (La. 2/26/99); Henderson v.
Domingue, 626 So.2d 555 (La.App. 3 Cir. 1993), writ denied, 630 So.2d 1/28/94).
One measure of the damages can be the amount the Plaintiffs would have
received had the underlying case gone to trial and judgment. In addition, the law also
recognizes that the Plaintiffs can also receive an award for the damage arising out of
the actions or inaction of their attorney. Beis, 649 So. 2d 1094; Henderson, 626 So.2d
555. In this case, Plaintiffs have claimed general and special damages resulting from
the injuries they sustained because of the actions of Brouillette. They have also
claimed general and special damages based solely on the action and inactions of
Rabalais. Hereinafter, we will refer to these two categories of damages as Brouillette
damages and Rabalais damages.
BROUILLETTE DAMAGES:
After first determining that all of the Plaintiffs suffered damages as a result of
the actions of Brouillette on July 2, 1997, the jury then responded to interrogatories
6, 7 and 8 and set forth in dollars the amount to be awarded to each Plaintiff for the
general and special damages caused by Brouillette.2
Brouillette General Damages:
Rabalais’ primary focus on appeal is that the trial court failed to include on the
verdict form Rabalais’ requested interrogatories which would have more expressly
addressed Brouillette’s ability to pay.3 The main thrust of Rabalais’ argument is that
2 The completed interrogatories 6, 7 and 8 on the verdict form read as follows:
6) In terms of dollars, how much in total damages, if any, did Jonathan Chatelain suffer or sustain, as a result of the actions of Herbert Patrick Brouillette?
a) General Damages $ 45,000.00 b) Special Damages $ 5,000.00
7) In terms of dollars, how much in total damages, if any, did Amanda Chatelain suffer or sustain, as a result of the actions of Herbert Patrick Brouillette?
a) General Damages $ 20,000.00 b) Special Damages $ 5,000.00
8) In terms of dollars, how much in total damages, if any, did Vincent Chatelain suffer or sustain, as a result of the actions of Herbert Patrick Brouillette?
3 Rabalais submitted to the court the following requested interrogatories on the issue of Brouillette’s ability to pay:
9. Do nine or more of you agree that Herbert Patrick Brouillette could have actually paid the total judgment in number 6, 7 and 8, above? Brouillette’s impecuniosity is such that had the underlying lawsuit gone to judgment,
Brouillette would have been able to pay very little, if anything, in satisfying such a
judgment. Rabalais, further argues that requiring the Defendant to pay the full face
value of any such judgment – which according to Rabalais, Brouillette could never
pay – would result in Plaintiffs receiving a windfall for the damages attributable to the
actions of Brouillette. We disagree.
The record reveals that the trial court did not in any way limit or restrict
Rabalais in presenting evidence pertaining to Brouillette’s ability to pay. Even at that,
the evidence shows that at the time of trial, Brouillette was gainfully employed and
could hardly be classified as a pauper. Of more importance, the trial court adequately
instructed the jury that in assessing damages, consideration should be given to
Brouillette’s ability to pay. In fact, with the exception of the changing of one word,
the instruction given the jury by the court was identical to the instruction proposed by
Rabalais.4 Moreover, counsel for Rabalais was allowed to thoroughly argue this issue
in closing arguments with counsel taking that opportunity to fully explain to the jury
the instructions on the issue of ability to pay ultimately given by the court. Under the
YES_____________ NO________________
10. If your answer to question number 9 was “No”, please state the amount of the total judgment that you believe could have been paid by Herbert Patrick Brouillette.
$_____________________
4 The instruction given the jury on the ability to pay was as follows:
It is well settled in our law that the financial ability of a defendant to pay is a circumstance which must be considered in assessing an award for damages, both general and special. When ability to pay is considered, plaintiff may only be compensated to the degree that it does not impose an undue hardship on the defendant. If you award damages you must consider how much of that figure could actually have been paid by Herbert Brouillette. (Emphasis added.)
The only difference in the actual instruction and the instruction proposed by Rabalais is in the first sentence. The word “considered” was used by the court instead of the word “determined,” as proposed by Rabalais. This difference is immaterial. circumstances, we are of the opinion the jury was fully and adequately apprised of the
issue of Brouillette’s alleged inability to pay.
Rabalais also argues that the Brouillette damages awarded by the jury were
excessive. Defendant is correct that none of the Plaintiffs suffered any physical
injuries as a result of the Brouillette attack. It is also true that the medical treatment
received by the Plaintiffs for their emotional distress or injuries was minimal.
Moreover, there is no definitive evidence that any of the Plaintiffs will suffer any long
term effects from the traumatic episode wrought by Mr. Brouillette.
The circumstances of this case, however, do not neatly fit into a normal damage
model. One cannot turn to prior jurisprudence and easily find guidelines for gauging
in dollars the horrific ordeal endured by the Plaintiffs in the wee hours of the morning
of July 2, 1997.
The Plaintiffs were jolted out of deep slumber that morning by the sounds of
gunfire and the sounds of bullets and shotgun pellets ripping into their home. As they
cringed in the darkness, Amanda and Vincent also began hearing the shouts of their
father and Brouillette as they exchanged gunfire, fearing that at any moment their
father would be shot.
During the course of this raid on the Chatelain home, none of the Plaintiffs had
any idea how many people were involved in the attack. They all had the genuine fear
that it could be just a matter of time before the attacker or attackers succeeded in
storming into their once peaceful home. They all were facing the grim doorway of
death.
While there is no question of Jonathan’s bravery in defending his home and
family, there can be no question either that his was a terrifying experience. In order
for Jonathan to have any hope of successfully firing his weapon at Brouillette, Jonathan necessarily had to expose himself to the gunfire from Brouillette. Jonathan
also knew that his wife and children would be essentially helpless if he were to be shot
by Brouillette or whomever else might have been out there in the darkness.
The record shows that Jonathan sought help from Dr. Paul Ware, a psychiatrist5.
Anti-depressants were prescribed. Dr. Ware felt that Jonathan had a mild clinical
depression prior to the shooting event, the symptoms of which were increased as a
result of the event. Dr. Ware diagnosed dysthymic mood disorder with associated
anxiety, and noted that following the incident, Jonathan no longer felt safe. For the
first time, Jonathan began locking his doors, putting up motion lights, and he installed
an alarm system. He kept a loaded gun next to his bed and was preoccupied with the
incident and kept thinking about it over and over again. Jonathan reported difficulty
in initiating and doing things. Dr. Ware noted that the incident affected Jonathan’s
basic belief system with regard to things such as trust in others. The doctor stated that
Jonathan had a marked increase in feelings of sadness, was tired, and was having
difficulty functioning when he came for treatment. He noted that marital discords
between Jonathan and his wife increased after the incident with the result that the two
finally separated. Dr. Ware opined that Jonathan continued to show mild residual
effects from the traumatic experience and that Jonathan would need further treatment
for approximately the next two years after his visit on June 13, 2000, prior to Dr.
Ware’s deposition.
Amanda was treated on one occasion by Dr. John Simoneaux, a clinical
psychologist. Dr. Simoneaux’s testimony indicates that Amanda had a variety of
other stressors in her life in addition to the shooting event, including discord with her
5 Dr. Ware’s deposition was taken in July 2000 and read into the record of the trial which was held in July 2003. A summary of charges for Dr. Ware’s services shows that all three Chatelain’s continued to see him following his deposition. parents, unhappiness with her work and problems with her boyfriend and his family.
He concluded that the shooting event had not profoundly affected her. She also saw
Dr. Ware a total of four times from April 1999 through June 2003. Dr. Ware testified
that he diagnosed Amanda as suffering from adjustment disorder of adulthood with
anxiety and depression and some features of post-traumatic stress disorder. He stated
that she was particularly affected by her concern for her father, with whom she was
close. He also noted that she had started to be more worried and suspicious in her
relationship with her boyfriend, and had difficulty concentrating in school. Dr. Ware
prescribed an anti-depressant medication but Amanda found that the medication
caused nausea and took it only once. The doctor felt that she had regained her
emotional equilibrium by the last time he saw her.
Vincent also saw Dr. Ware, who opined that Vincent was not as affected by the
incident as his father and sister. The doctor testified that when he saw Vincent he had
only a mild lingering symptom in that when he was home and he heard an unexpected
noise outside he would feel uneasy and the need to check it out. Dr. Ware did not
suggest further treatment for Vincent. Vincent was also seen once by Dr. Simoneaux,
who found him to be a well-functioning adolescent and saw no need for further
treatment.
The agony and anguish suffered by the Chatelains during this brutal invasion
of their home are insusceptible to precise measurement. If ever a case was perfectly
suited for having damages determined by a jury of one’s peers, this is that case.
We find no error in the award to the Plaintiffs of general damages as a result of
the actions of Brouillette.
Brouillette Special Damages: Under the category of the special damages, the jury awarded each Plaintiff the
same amount, $5,000.00. The only special damages proven, or attempted to be
proven, were the medical expenses incurred or to be incurred by the Plaintiffs. These
medical expenses related to charges made or to be made by Drs. Simoneaux and Ware.
Special damages, unlike general damages, are susceptible of being established
with reasonable mathematical certainty. Wainwright v. Fontenot, 00-0492 (La.
10/17/00), 774 So.2d 70; Myers v. Broussard, 96-1634 (La.App. 3Cir. 5/21/97), 696
So.2d 88 . “Future medical expenses are an element of special damages that must be
proven with certainty based on medical testimony concerning the requirement of such
expenses and their probable cost.” Netecke v. State, 97-974, p. 15 (La.App. 3 Cir.
4/1/98), 715 So.2d 439, 448; writs granted, 98-1182, 98-1197 (La. 6/26/98), 719
So.2d 485, reversed on other grounds, 98-1197 (La. 10/19/99), 747 So.2d 489. See
also Gagnard v. Zurich American Ins. Co. of America, 02-19 (La.App. 3 Cir. 6/12/02),
819 So.2d 489. Further, to recover medical expenses, whether past or future, a
plaintiff must show, through medical testimony, both the existence of the injury and
a causal connection between the injuries and the incident of which plaintiff
complained. Rhodes v. State, DOTD, 94-1758 (La.App. 1 Cir. 1996), 684 So.2d
1134, writ denied, 97-0242 (La. 2/7/97), 688 So.2d 487.
Dr. Simoneaux was engaged to examine the Plaintiffs while Rabalais was still
representing them. However, he saw only Amanda and Vincent on one occasion each.
His charges were $500.00 for each visit. After current counsel assumed representation
of Plaintiffs, counsel arranged for them to be seen by Dr. Ware. Although the record
is not as definitive as it could be, it appears that as of the day of the trial Dr. Ware had
charged $800.00 for seeing Jonathan, $900.00 for Amanda and $500.00 for Vincent. Dr. Ware testified that he saw no need for any further visits or treatment of Amanda
and Vincent. The doctor did say, in his deposition of July 2000, that Jonathan should
visit him four or five times within two years of his last visit at a total cost of some
$500.00. Jonathan’s testimony at the trial in July 2003, suggests that this additional
treatment had been completed at that time.
Accordingly, the only proven specials were $1,300.00 for Jonathan, $1,400.00
for Amanda and $1,000.00 for Vincent. “[T]he manifest error standard controls on
the issue of the assessment of special damages. Johnson v. State Through Department
of Public Safety and Corrections, 95-0003 (La.App. 1 Cir. 10/6/95), 671 So.2d 454.”
Craige v. Broome, 03-0255, p. 11 (La.App. 4 Cir. 2/25/04), 869 So.2d 242, 246.
Given the evidence with regard to special damages, it appears that the jury did err
manifestly in its award of special damages. As a result, this court must determine the
appropriate amount of special damages from a de novo review of the record. Bennett
v. State Farm Ins. Co., 03-1195 (La.App. 3 Cir. 3/24/04), 869 So.2d 321.
We find that the record would justify an award of special damages of no more
than $1,500.00 for Jonathan, $1,500.00 for Amanda and $1,200.00 for Vincent.
RABALAIS DAMAGES
After completing the interrogatories pertaining to the Brouillette damages, the
jury was given additional interrogatories to determine whether Rabalais deviated
below the standard of care required of an attorney and, if so, whether the Plaintiffs
suffered damages as a result of this deviation. The jury found there was such a
deviation and awarded Plaintiffs the identical amount previously awarded due to the actions of Brouillette, including the same amount awarded each Plaintiff for special
damages.6
Rabalais General Damages:
While we are of the opinion that the jury award for the Brouillette damages is
supported by the record, we have great difficultly finding evidentiary support for
awarding an amount identical to the Brouillette damages for what Rabalais did or did
not do.
Able counsel for the Plaintiffs points out a number of alleged deficiencies in
Rabalais’ representation of the Plaintiffs, both before and after the underlying case had
prescribed. Counsel argues that before the case prescribed, Rabalais failed to properly
6 Interrogatories 9,10 & 11 pertain to the Rabalais damages and, as completed by the jury, read as follows: 9) If you found in question #1 that Defendant, Rodney Rabalais deviated below the standard of care required of an attorney, did Jonathan Chatelain suffer any damages as a result of this deviation?
/ Yes No
If yes, what sum of money would reasonably and fairly compensate Jonathan Chatelain?
10) If you found in question #1 that Defendant, Rodney Rabalais deviated below the standard of care required of an attorney, did Amanda Chatelain suffer any damages as a result of this deviation?
If yes, what sum of money would reasonably and fairly compensate Amanda Chatelain?
11) If you found in questions #1 that Defendant, Rodney Rabalais deviated below the standard of care required of an attorney, did Vincent Chatelain suffer any damages as a result of this deviation?
If yes, what sum of money would reasonably and fairly compensate Vincent Chatelain?
a) General Damages $ 20,000.00 b) Special Damages $ 5,000.00 investigate the facts and prepare the case for trial. After prescription had run, counsel
complains that Rabalais was slow in advising Plaintiffs of this error; that Rabalais did
not timely advise Plaintiffs that Rabalais had actually filed a suit against Brouillette,
albeit past the prescription date; that Rabalais communicated only with Lauren about
his mistake and avoided doing so with Jonathan; and that Rabalais’ letter formally
notifying Plaintiffs of his error, was sent more than 90 days after the underlying case
had prescribed. While counsel is to be commended for ferreting out these alleged
deficiencies, with the possible exception of Jonathan, they did not seem to inflict
material emotional distress upon the Plaintiffs.
It is to be noted also that Rabalais never denied his negligence, never was
defiant in the defense of himself, and never tried to shift blame to someone else. In
his contacts with the Plaintiffs after the case prescribed, as well as during the trial of
this case itself, he was contrite and apologetic. This attitude of humility would tend
to soothe mental distress rather than engender it.
In his testimony, Jonathan made it quite clear that he was considerably upset
with Rabalais. Most of Jonathan’s displeasure centered on the fact that after the case
prescribed, Rabalais communicated with Lauren rather than Jonathan. It seems that
Lauren and Rabalais had been friends for sometime, both being members of the same
Rotary Club. Although there was no evidence of any improper relationship between
Rabalais and Lauren, Jonathan indicated that whatever that relationship was, it
contributed to his divorce from Lauren. Jonathan even suggested that Rabalais had
“sold us out” because Brouillette was related to a political figure in Avoyelles Parish.
There is no question that Jonathan was very angry with Rabalais and that this
anger persisted at least through the trial of this case. Anger is certainly a form of
emotional distress. In determining whether emotional distress rises to the level of being compensable in damages, great weight must be given to the medical evidence
or testimony on the issue. Importantly, Dr. Ware testified at length about Jonathan’s
mild clinical depression and the causes of same. The doctor’s testimony sets forth in
detail Jonathan’s emotional difficulties relating to the Brouillette incident. However,
nowhere in Dr. Ware’s testimony does he mention any emotional trauma or distress
suffered by Jonathan attributable to the actions or inactions of Rabalais. Not only did
Dr. Ware fail to address any emotional trauma suffered by Jonathan caused by
Rabalais, no questions were posed to Dr. Ware on this issue by counsel.
While the evidence is slim regarding the injuries to Jonathan resulting directly
from Rabalais’ fault, the evidence of emotional injuries to Amanda and Vincent
caused by Rabalais is non-existent. Neither Amanda nor Vincent gave any testimony
that either had suffered meaningful distress as a result of Rabalais’ fault or negligence.
The best they could offer was that neither of them had real contact with Rabalais.
Amanda was seen once by Dr. Simoneaux and twice by Dr. Ware. Vincent was seen
by Dr. Simoneaux and by Dr. Ware. Neither doctor made mention in his testimony
of any difficulties at all suffered by Amanda or Vincent resulting from anything done
or not done by Rabalais.
Again, the jury awarded each Plaintiff an identical sum for damages caused by
Brouillette and those cause by Rabalais. In comparing the ample evidence of the
chilling horror of the Brouillette incident with the paucity of evidence relating to
emotional injuries caused by Rabalais, we are of the opinion that the jury must have
been confused in awarding the same amount in Rabalais damages as the Brouillette
damages. While the trial court has a great deal of discretion to determine whether
to submit interrogatories to the jury and the exact content and wording of the interrogatories submitted,7 “Misleading or confusing interrogatories, or interrogatories
which do not adequately set forth the issues to be decided by the jury, may constitute
reversible error.” Campbell v. Hospital Service Dist. No. 1 Caldwell Parish, 37,876,
p. 6 ( La.App. 2 Cir. 12/10/03), 862 So.2d 338, 344, writ denied, ___So.2d ___ (La.
3/19/04). However, a verdict based on the interrogatories should not be set aside
unless the form prevented the jury from reaching a legally correct verdict. Id. At trial,
counsel for Defendant objected to the failure to give his requested interrogatories with
regard to ability to pay, but he did not object on the grounds of the possibility of the
jury being confused. Rabalais, however, does make this argument in his brief to this
court. “[W]hen jury instructions or interrogatories contain a ‘plain and fundamental’
error . . . the contemporaneous objection requirement is relaxed and appellate review
is not prohibited.” Campbell, 862 So.2d at 344. In this case, the evidence supports the
conclusion that the jury interrogatories and instructions were confusing and thus
fundamentally in error.
In addition to the great disparity in the evidence attributable to these two
categories of damages, there are other notable factors indicating the confusion of the
jury.
First, during deliberations the jury sent a message to the court asking for further
instructions. Unfortunately, the record does not reveal the specific issue with which
the jury was concerned. The record does reflect the trial court and the attorneys
discussed this request by the jury at some length, but there is no indication that the
jury was ever given a response by the court. Although we do not know the specific
7 Young v. First Nat. Bank of Shreveport, 34,214 ( La.App. 2 Cir. 8/22/01), 794 So.2d 128, writs denied, (La.1/4/02), 805 So.2d 209, 1195, reconsideration granted, writ denied, (La. 3/22/02) 811 So.2d 936. nature of the jury’s inquiry to the court, this does suggest that the jury was confused
about something.
Second, there is nothing in the interrogatories given to the jury nor in the
instructions given the jury by the trial court, explaining the difference between the
Brouillette damages and the Rabalais damages. At no time was the jury advised that
the Rabalais damages were to be determined and assessed separate and distinct from
the Brouillette damages.
Third, it is also telling that the jury awarded the identical amount of special
damages caused by Brouillette and by Rabalais. As indicated above, the only special
damages proven were the costs of the medical treatment afforded or to be afforded by
Drs. Simoneaux and Ware. Again, these proven medical expenses were considerably
less than the special damages awarded by the jury in either the Brouillette or Rabalais
categories of damages. Also, it is to be reiterated that neither Dr. Simoneaux nor Dr.
Ware testified that any of the Plaintiffs’ injuries was caused by Rabalais. To be sure,
whatever special damages were proven, they can only be awarded once.
Fourth, in answering the appeal in this case, Plaintiffs seek an increase in the
damage award. However, this increase is sought only for the damages caused by
Brouillette, there being no request for an increase in the Rabalais damages. At the
very least, this is a strong indication that Plaintiffs themselves see the Brouillette
damages as being significantly greater than the Rabalais damages.
We find that the failure to include in the interrogatories, or in the instructions
to the jury an explanation of the need to separately calculate the two elements of
damages, those arising solely from Brouillette’s actions and those arising solely from
the actions or inactions of Rabalais, misled and confused the jury. See Campbell, 862
So.2d 338. As to Amanda and Vincent, the record is totally devoid of any evidence
supporting an award to them for the Rabalais damages. Accordingly, we reverse
entirely the general damage awards to Amanda and Vincent in the Rabalais damages.
Although the award of general Rabalais damages to Jonathan was not supported by
medical testimony or evidence, we cannot say there is insufficient lay testimony to
support some award to Jonathan in this category. The trier of fact is to be accorded a
great deal of discretion in making awards of general damages. Because of this vast
discretion an appellate court should rarely disturb an award of general damages.
However, if an award beyond that which a reasonable trier of fact could assess for the
effects of the particular injury to the particular plaintiff under the particular
circumstances, the appellate court will increase the award to the lowest point within the
discretion of the court or decrease it to the highest point within the discretion of the
court. Adams v. Chenault, 36,729 (La.App. 2 Cir. 1/29/03), 836 So.2d 1193, Pullen
v. Ziegler, 562 So.2d 1093,1095(La.App. 4 Cir. 1990). We are of the opinion that the
highest award justified by the evidence to be awarded to Jonathan for Rabalais general
damages would be $5,000.00.
Rabalais Special Damages:
The only special damages proven were the medical expenses and future medical
expenses addressed above in the discussion of the Brouillette damages. No other
special damages were proven and no attempt was made to separate the special damages
attributable to Brouillette and those attributable to Rabalais. Accordingly, we reverse
the award of special damages to each of the Plaintiffs in the Rabalais category of
damages.
CONCLUSION For these reasons, the judgment of the trial court is affirmed in part, reversed and
rendered in part, the awards to each Plaintiff being as follows:
Jonathan Rabalais:
Broullette General Damages: Affirmed $45,000.00
Rabalais General Damages: $ 5,000.00
Brouillette Special Damages: $ 1,500.00
Rabalais Special Damages: $ 00.00
Total : $56,000.00
Amanda:
Brouillette General Damages: Affirmed $20,000.00
Rabalais General Damages: $ 00.00
Total: $21,500.00
Vincent:
Costs of this appeal are to be paid one-half by the Appellant and one-half by the
Appellees.