PABLO DANILO GONZALEZ NO. 23-CA-298
VERSUS FIFTH CIRCUIT
DESTINY WRICKS AND STATE FARM COURT OF APPEAL MUTUAL AUTOMOBILE INSURANCE COMPANY STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 807-140, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING
May 08, 2024
FREDERICKA HOMBERG WICKER JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
REVERSED AND RENDERED FHW MEJ SJW COUNSEL FOR PLAINTIFF/APPELLANT, PABLO DANILO GONZALEZ Ivan A. Orihuela
COUNSEL FOR DEFENDANT/APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Nicole T. Bowyer WICKER, J.
In this case arising from a motor vehicle accident, plaintiff appeals the trial
court’s February 27, 2023 judgment rendered in favor of defendant, dismissing his
case with prejudice. For the following reasons, we reverse the trial court’s
judgment and render judgment in favor of plaintiff.
FACTS AND PROCEDURAL HISTORY
On June 8, 2020, plaintiff, Pablo Danilo Gonzalez, filed this lawsuit against
Destiny Wricks and her insurer, State Farm Mutual Automobile Insurance
Company (“State Farm”), seeking damages incurred as a result of a motor vehicle
accident on December 28, 2019. In his petition, Mr. Gonzalez asserts that he was
traveling on Brooklyn Avenue in Harvey, Louisiana, and attempted to cross the
intersection of Brooklyn and Lapalco Boulevard when a vehicle operated by Ms.
Wricks, who was traveling on Lapalco, ran a red light and struck his vehicle. He
contends that he sustained both property damages and personal injuries.
On August 7, 2020, State Farm answered the petition, admitting that Ms.
Wricks was its insured on the date of the accident, but generally denying the other
allegations and asserting that Mr. Gonzalez was at fault for the accident.
Trial of this matter commenced on January 18, 2023. Prior to taking
testimony, Mr. Gonzalez’s certified copies of medical records and a bill from
Louisiana Primary Care Consultants were admitted into evidence without
objection, and the parties stipulated that his damages did not exceed $50,000. The
parties also stipulated that State Farm issued an insurance policy covering Ms.
Wricks at the time of the accident. Counsel for Mr. Gonzalez indicated that Ms.
Wricks was not served with the lawsuit and that he would dismiss the claims
against her, but maintain a direct action against her insurer, State Farm.
At trial, Mr. Gonzalez testified via a Spanish interpreter that on December
28, 2019, sometime between 12:30 a.m. and 1:30 a.m., he was driving his Ford 150
23-CA-298 1 pickup truck and stopped at a red light at the intersection of Brooklyn and Lapalco
for about five to six seconds. He stated that when the light turned green, he waited
two or three seconds and then slowly proceeded to cross the Lapalco lanes of travel
when a car driven by Ms. Wricks ran a red light and collided with his vehicle. He
asserted that the collision occurred in the farthest lane from the neutral ground as
he was crossing over Lapalco. He testified that he swerved to the left and braked,
but the car was coming very fast and he was unable to avoid the collision.
Mr. Gonzalez testified that the police and an ambulance subsequently
arrived. He stated the police officer spoke to him in English, but his native
language is Spanish and he does not speak English fluently. Mr. Gonzalez said he
explained to the officer that he started to cross when the light was green, but the
officer found the accident was his fault and gave him traffic citations. He asserted
that he felt pain in his neck, back, and left knee, and sought medical treatment four
to five days later.
On cross-examination, Mr. Gonzalez admitted that he did not have a driver’s
license at the time of the accident. However, he said he was familiar with the
intersection and had been traveling through it for about two years prior to the
accident. Mr. Gonzalez testified that he noticed Ms. Wricks’ vehicle in his
peripheral vision when he was “halfway” through the intersection, but there was
nothing he could do because it was coming very fast. He identified photographs of
his truck taken after the accident and agreed that the front of his truck struck the
rear driver-side door of Ms. Wricks’ car. Mr. Gonzalez acknowledged he received
three traffic citations for: 1) driving without a license; 2) running a red light; and 3)
careless operation. The citations issued to Mr. Gonzalez were admitted into
evidence.
On re-direct, Mr. Gonzalez testified that he had been driving since he was
fifteen years old and had a driver’s license in his country, Guatemala. At the
23-CA-298 2 conclusion of Mr. Gonzalez’s testimony, the trial was continued in order to have
Officer Darren Rivere, who investigated the accident, testify.
Trial resumed on February 16, 2023. Officer Darren Rivere testified that he
is a patrol deputy for the Jefferson Parish Sheriff’s Office, and he responded to the
accident at the intersection of Lapalco and Brooklyn on December 28, 2019.
When he arrived, Mr. Gonzalez’s vehicle was parked in a nearby parking lot and
Ms. Wricks’ vehicle was positioned against a U-Haul storage building next to the
intersection. Officer Rivere identified photographs of the intersection, Mr.
Gonzalez’s truck, and Ms. Wricks’ car.
Officer Rivere testified he looked at the intersection to determine if the
traffic lights were functioning properly and found that they were. He first spoke to
Ms. Wricks, who advised him she was driving westbound on Lapalco and had a
green light when she reached the intersection at Brooklyn and was struck by
another vehicle. Counsel for Mr. Gonzalez objected to this testimony as hearsay,
but the trial court overruled the objection. According to Officer Rivere, Ms.
Wricks indicated the collision caused her to lose control and strike a storage unit in
front of the U-Haul building.
After obtaining Ms. Wricks’ statement, Officer Rivere approached Mr.
Gonzalez and asked what happened. Mr. Gonzalez indicated that he was traveling
north on Brooklyn and had a green light to cross Lapalco, but when he proceeded
into the intersection, he was struck by another vehicle. Because the drivers had
conflicting stories, Officer Rivere decided to question them again. He asked Ms.
Wricks again what had happened and she provided the same information as she
had previously given. Officer Rivere testified that when he asked Mr. Gonzalez to
tell him again what had happened, he provided a different sequence of events than
he had previously given.
23-CA-298 3 Officer Rivere assessed the vehicles and observed that Ms. Wricks had
damage to the driver’s side front and rear of her vehicle and Mr. Gonzalez had
damage only to the front end of his vehicle. He testified that he issued citations to
Mr. Gonzalez for disregarding a red light, no driver’s license, and careless
operation. He further stated that he determined that Mr. Gonzalez was at fault for
the accident due to his conflicting statements and because the damage to the
vehicles indicated Ms. Wricks had control of the intersection.
On cross-examination, Officer Rivere testified that an interpreter could have
been called to the scene, but Mr. Gonzalez did not request one. He stated that Mr.
Gonzalez spoke English fluently, though with an accent. He admitted that while he
felt Mr. Gonzalez’s story changed at the scene when he spoke to him a second
time, he did not recall specifically what changed or write it in his report. He also
acknowledged that he did not take measurements at the scene and was not trained
in accident reconstruction.
At the conclusion of trial, the trial court ruled in favor of State Farm. The
court stated:
…the Court considering the testimony of all the parties, the dispute over who may have had the red light, even if the Court goes ahead and assumes that Mr. Gonzalez had the green light, Mr. Gonzalez was in a stopped position at an intersection attempting to make a turn across the primary roadway, that being Lapalco, and even if the light turns green, he doesn’t have the right to go ahead and just accelerate into the intersection if he sees another vehicle that may be disregarding the red light.
So, I believe that taking into account the conflict as to who had the green light and the fact that Mr. Oriheula’s client, Mr. Gonzalez, had the last clear chance to avoid the accident, the Court’s going to rule in favor of the defendant.
On February 27, 2023, the trial court signed a written judgment in favor of
State Farm, dismissing Mr. Gonzalez’s claims with prejudice. Mr. Gonzalez
appeals.
23-CA-298 4 LAW AND DISCUSSION
In a civil action, the plaintiff seeking damages must prove each element of
his claim by a preponderance of the evidence. Hamilton v. Progressive Waste
Solutions of LA, Inc., 23-139 (La. App. 5 Cir. 11/29/23), 377 So.3d 855, 858;
Erwin v. State Farm Mut. Auto. Ins. Co., 34,127 (La. App. 2 Cir. 11/1/00), 771
So.2d 229, 230-32, writ denied, 00-3285 (La. 2/2/01), 784 So. 2d 6. Proof by
preponderance of the evidence means that the evidence, when taken as a whole,
shows that the fact to be proven is more probable than not. Id.
Allocation of fault is a question of fact for the trial court to decide. Solomon
v. American Nat'l Prop. & Cas. Co., 49,981 (La. App. 2 Cir. 9/4/15), 175 So.3d
1024; Kelly v. Boh Bros. Const. Co., Inc., 96-1051 (La. App. 5 Cir. 4/9/97), writs
denied, 97-1226, 97-1249 (La. 9/5/97), 700 So.2d 507, 509. Like all factual
findings, the trier of fact is owed great deference in its allocation of fault and its
findings may not be reversed unless clearly wrong or manifestly erroneous.
Tamayo v. American Nat. General Ins. Co., 14-130 (La. App. 5 Cir. 9/24/14), 150
So.3d 459, 465; Phipps v. Allstate Ins. Co., 05-651 (La. App. 5 Cir. 2/27/06), 924
So.2d 1081, 1083. After reviewing the entire record, the appellate court may
reverse the trial court's findings if there is no reasonable factual basis for the
findings and the record establishes the trial court was manifestly erroneous or
clearly wrong. Hayes Fund for First United Methodist Church of Welsh, LLC v.
Kerr-McGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So.3d 1110, 1116;
Stobart v. State through Dept. of Transportation and Development, 617 So.2d 880,
882 (La. 1993).
Legal errors are prejudicial when they materially affect the outcome and
deprive a party of substantial rights. Evans v. Lungrin, 97-541, 97-577 (La.
2/6/98), 708 So.2d 731, 735. When legal error interdicts the fact-finding process,
the manifest error standard is no longer applicable and the appellate court should
23-CA-298 5 make its own independent de novo review of the record. Nusloch v. Browning-
Ferris Services, Inc., 97-528 (La. App. 5 Cir. 11/25/97), 703 So.2d 794, 797;
Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742, 747. If
the record is complete, the appellate court must undertake an independent de novo
review of the record and determine which party or parties should prevail by a
preponderance of the evidence. Id.
On appeal, Mr. Gonzalez asserts that the trial court erred by ruling in favor
of State Farm, arguing that the trial court’s factual findings were inconsistent with
the facts established at trial. He argues that the trial court erred in finding that even
if he had the green light, he failed to exercise the last clear chance to avoid the
accident, because his unrefuted testimony established he was unable to avoid the
impact. Mr. Gonzalez further contends his testimony showed that Ms. Wricks was
not in the intersection when he entered it and that Ms. Wricks disregarded a red
light, causing the collision.
State Farm responds that the trial court correctly found that Mr. Gonzalez
had the last clear chance to avoid the accident, because he testified that he saw Ms.
Wricks in his peripheral vision and, therefore, he should have known that the
intersection was not clear enough to permit safe entry. It argues that Mr. Gonzalez
should have waited until Ms. Wricks cleared the intersection before proceeding
forward on a green light.
In Gibson v. State Through Dep't of Transp. & Dev., 95-1418, 95-1419 (La.
App. 1 Cir. 4/4/96), 674 So.2d 996, 1004, writs denied, 96-1862, 96-1895, 96-1902
(La. 10/25/96), 681 So.2d 373, 374, the Court discussed comparative fault and the
last clear chance doctrine as follows:
Prior to the adoption of comparative fault in Louisiana, the doctrine of last clear chance was created to escape the harsh effects of the contributory negligence defense which, in its strict application, operated as an absolute bar to a plaintiff's recovery. See Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d
23-CA-298 6 400, 403 (La.1978). In a comparative fault analysis, whether the plaintiff had the last clear chance to avoid an accident is a determination for the trier of fact. In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985), the court explained the appropriate considerations for a comparative fault analysis, as follows:
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (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 extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
Watson, 469 So.2d at 974. Thus, the principles considered in the application of the last clear chance doctrine are subsumed by the comparative fault analysis. The application of the last clear chance doctrine is not, therefore, a separate consideration for the trier of fact.
See also Edwards v. LCR-M Corp., 41,125 (La. App. 2 Cir. 7/12/06), 936
So.2d 233, 242.
In its reasons for judgment, the trial court stated, “even if the light turns
green, he doesn’t have the right to go ahead and just accelerate into the intersection
if he sees another vehicle that may be disregarding the red light.” However, this is
a misinterpretation of Mr. Gonzalez’s trial testimony.
At trial, Mr. Gonzalez did not indicate he just accelerated into the
intersection when the light turned green or that he saw another vehicle that may be
disregarding a red light. Rather, he stated that when the light turned green, he
waited about two seconds before proceeding and did not see Ms. Wricks’ vehicle
in his peripheral vision until he was “halfway” through the intersection. He stated
that Ms. Wricks’ vehicle was coming very fast and he was unable to avoid the
collision. Considering the trial testimony and evidence, we find the trial court
23-CA-298 7 erred by finding that Mr. Gonzalez had the last clear chance to avoid the accident
and therefore, was solely at fault.
Mr. Gonzalez also argues the trial court erred by allowing Officer Rivere to
testify that Ms. Wricks told him at the accident scene that she had the green light,
because it was impermissible hearsay evidence. He asserts that his testimony that
he had a green light was unrefuted and should have been accepted as true, where
neither Ms. Wricks nor any other eyewitness testified at trial.
State Farm responds that the trial court correctly allowed Officer Rivere to
testify about Ms. Wricks’ statements at the accident scene. It argues that this
testimony was not hearsay because the statements were not offered “for the truth of
the matter asserted,” but rather to explain the course of Officer Rivere’s
investigation.
Hearsay is “a statement other than one made by the declarant while
testifying at the present trial or hearing, offered in evidence to prove the truth of
the matter asserted.” La. C.E. art. 801(A)(1)(C). Hearsay is inadmissible “except
as otherwise provided by this Code or other legislation.” La. C.E. art. 802. The
Louisiana Supreme Court has stated that hearsay is excluded because the value of
the statement rests on the credibility of the out-of-court asserter who is not subject
to cross-examination and other safeguards of reliability. Trascher v. Territo, 11-
2093 (La. 5/8/12), 89 So.3d 357, 364. However, when an out-of-court statement is
offered for a purpose other than to establish the truth of the assertion, its
evidentiary value is not dependent upon the credibility of the out-of-court asserter
and the statement falls outside the scope of the hearsay exclusionary rule. Id.;
State v. Martin, 458 So.2d 454 (La. 1984).
In support of its position that Ms. Wricks’ statements to Officer Rivere were
not hearsay, State Farm cites State v. Davis, 06-402 (La. App. 5 Cir. 11/28/06), 947
So.2d 48, 56, writ denied, 07-03 (La. 9/14/07), 963 So.2d 996, in which this Court
23-CA-298 8 found that a police officer’s testimony may include information provided by
another person without constituting hearsay, if the testimony is offered to explain
the course of the investigation and the steps which led to the defendant’s arrest.
However, in Davis, this Court also stated that an “officer’s testimony is not
considered hearsay when he does not testify to the substance of what was told to
him by another person, but rather what he did in response to that information.” Id.
In the present case, Ms. Wricks did not testify at trial. Officer Rivere’s
testimony that Ms. Wricks said she had the green light was an out-of-court
statement that was not subject to cross-examination. Despite State Farm’s
assertions to the contrary, Officer Rivere’s testimony that Ms. Wricks told him she
had the green light was clearly offered for the truth of the matter asserted. Officer
Rivere testified as to the substance of Ms. Wricks’ statement, not merely what he
did in response to her assertions. This testimony influenced the trial court’s
decision, as the substance of Ms. Wricks’ statement formed the basis for the
dispute as to who had the green light, and the trial court considered this dispute in
rendering its decision. See Sciortino v. Wood, 02-233 (La. App. 5 Cir. 9/18/02),
829 So.2d 476, 478, in which this Court found that specific verbal exchanges
between a witness and a police officer investigating an accident were classic,
inadmissible hearsay.
After review, we find that the trial court erred by overruling Mr. Gonzalez’s
objection and allowing Officer Rivere to present hearsay testimony that Ms.
Wricks said she had the green light. Without this testimony, Mr. Gonzalez’s
testimony that he had the green light was undisputed. Mr. Gonzalez’s objection to
this testimony should have been sustained and the testimony excluded as
The trial court’s erroneous admission of Ms. Wricks’ out-of-court statements
constituted legal error, because the evidence was clearly prejudicial to Mr.
23-CA-298 9 Gonzalez’s case. Considering this legal error, along with the trial court’s error in
finding Mr. Gonzalez had the last clear chance to avoid the accident, we find that a
de novo review in this case is appropriate.
La. R.S. 32:232 governs the duty of motorists facing traffic control signals.
A motorist with a green light has the right-of-way and may generally assume that
motorists traveling on intersecting streets will obey the traffic signal and respect
his right-of-way. La. R.S. 32:232(l)(a); Ramos v. Louisiana Farm Bureau
Casualty Insurance Co., 21-228 (La. App. 1 Cir. 12/9/21), 333 So.3d 453, 456.
However, a motorist cannot depend exclusively on a favorable green light. Id. A
motorist has a duty to watch for vehicles already in the intersection when the light
changes. Palmisano v. Ohler, 16-160 (La. App. 5 Cir. 12/7/16), 204 So.3d 1134,
1138. This duty does not extend to watching for traffic that has not yet entered the
intersection. Id.
Mr. Gonzalez argues that he was entitled to assume that traffic approaching
the intersection would comply with the traffic signals. He further contends that
Ms. Wricks was clearly at fault for the accident, because she failed to exercise
ordinary care by disregarding a red light.
Uncontroverted evidence should be taken as true to establish a fact for which
it is offered absent any circumstances in the record casting suspicion as to the
reliability of this evidence and sound reasons for its rejection. Earls v. McDowell,
07-17 (La. App. 5 Cir. 5/15/07), 960 So.2d 242, 248; Taviani v. Akrom, Inc., 22-
475 (La. App. 5 Cir. 4/26/23), 363 So.3d 1284, 1291, writ denied, 23-0863 (La.
10/10/23), 371 So.3d 456.
The record does not show there were circumstances casting suspicion on the
reliability of Mr. Gonzalez’s unrefuted testimony that he: 1) had the green light; 2)
proceeded with caution by waiting two to three seconds before slowly entering the
intersection; 3) was halfway through the intersection when he saw Ms. Wricks’
23-CA-298 10 vehicle in his peripheral vision; and 4) was unable to avoid the collision. Although
Officer Rivere testified he found Mr. Gonzalez to be at fault due to his conflicting
statements, he could not recall what statements were conflicting or inconsistent.
Officer Rivere also testified the damage to the vehicles showed that Ms. Wricks
had control of the intersection. Although the photographs show that the front of
Mr. Gonzalez’s vehicle struck the side of Ms. Wricks’ vehicle, this fact alone does
not establish that Ms. Wricks entered the intersection before Mr. Gonzalez.
Officer Rivere testified that he did not take measurements at the scene and was not
trained in accident reconstruction. Further, there was no evidence of Ms. Wricks’
speed other than Mr. Gonzalez’s testimony that her vehicle was coming very fast.
Based on our independent de novo review of the record, and considering Mr.
Gonzalez’s unrefuted testimony that he had the green light and did not see Ms.
Wricks’ vehicle when he entered the intersection, we find that Mr. Gonzalez
proved by a preponderance of the evidence that the accident was solely caused by
the negligence and/or fault of Ms. Wricks. Accordingly, we find that State Farm is
liable for the damages Mr. Gonzalez sustained in this accident.
When a fact finder does not reach an issue because of an earlier finding
disposing of the case, the court of appeal, in reversing the earlier finding, must
make a de novo determination of the undecided issues from the facts in the record.
Luquette v. Great Lakes Reinsurance (Uk) PLC, 16-422 (La. App. 5 Cir. 12/21/16),
209 So.3d 342, 350, writ denied, 17-0136 (La. 3/13/17), 216 So. 3d 806; Lasha v.
Olin Corp., 625 So.2d 1002 (La. 1993). The reviewing court must award damages
that are just and fair for the damages revealed by the record, where the trial court
has made no award for damages. Dundas v. Real Superstore, 94-979 (La. App. 3
Cir. 2/1/95), 650 So.2d 402, 405, writ denied, 95-0470 (La. 4/28/95), 653 So.2d
590.
23-CA-298 11 Having found on de novo review that State Farm is liable for Mr. Gonzalez’s
damages, we must assess the damages and award just compensation in accordance
with the testimony and evidence. We first address special damages.
“Special damages” are those which must be specially pled or have a ready
market value, that is, the amount of the damages supposedly can be determined
with relative certainty. Prest v. Louisiana Citizens Prop. Ins. Corp., 12-513 (La.
12/4/12), 125 So.3d 1079, 1090; Wainwright v. Fontenot, 00-492 (La. 10/17/00),
774 So.2d 70, 74.
At the beginning of trial, Mr. Gonzalez’s medical records and bill for
medical treatment from Louisiana Primary Consultants were admitted into
evidence via stipulation of the parties. The bill reflects the expenses for Mr.
Gonzalez’s treatment totaled $6,387. When a plaintiff claims he has incurred
medical expenses due to injuries suffered in an accident and the treatment is
supported by a bill, this evidence is sufficient to support and award for past
medical expenses, unless there is contradictory evidence or reasonable suspicion
that the bill is unrelated to the accident. Jackson v. Drachenburg, 19-345 (La.
App. 5 Cir. 1/8/20), 288 So.3d 289, 293.
The record does not contain evidence casting reasonable suspicion as to
whether the bill is related to the accident. Based on the testimony, medical
records, and accompanying bill, we find Mr. Gonzalez is entitled to recover his
medical expenses, and we award $6,387 in special damages for these expenses.
Mr. Gonzalez also seeks recovery for the property damage to his truck
allegedly caused by the accident. He asserts he obtained an estimate for repairs
from DLC Body Shop in the amount of $3,468.55, but did not have his truck
repaired because he did not have the money and could still drive it. When he
moved to have the repair estimate admitted into evidence, counsel for State Farm
objected its admissibility on the grounds that it is hearsay and that State Farm did
23-CA-298 12 not stipulate to its authenticity. Counsel for Mr. Gonzalez replied that he was not
introducing it “for the contents of the document;” rather, it was only offered as
“that’s the document that he was handed by the Body Shop.” The trial court
admitted the repair estimate into evidence for the purpose of showing “that’s the
document that they gave him.”
After de novo review, we find that the repair estimate is hearsay and may not
be considered. Although La. C.E. art. 803(6) provides an exception to the hearsay
rule for “records of regularly conducted business activity,” the party who seeks to
introduce written hearsay evidence under La. C.E. art. 803(6) must authenticate it
by a qualified witness having “familiarity with the record-keeping system” of the
business. Finch v. ATC/Vancom Mgmt. Services Ltd. Partnership, 09-483 (La.
App. 5 Cir. 1/26/10), 33 So.3d 215, 220. No testimony was provided to
authenticate the repair estimate or to show it was a business record kept in the
regular course of business. Further, Mr. Gonzalez did not offer the estimate as
proof of the amount of damages to his vehicle, but only as a “document that he was
handed.” We also point out there was no testimony as to the condition of the truck
prior to the accident.
The plaintiff bears the burden of proving special damages by a
preponderance of the evidence. Crawford v. Allstate Insurance Company, 21-117
(La. App. 5 Cir. 11/3/21), 330 So.3d 1183, 1190. After review, we find Mr.
Gonzalez failed to meet his burden of proving that he is entitled to an award for the
alleged property damage to his truck.
We now turn to general damages. “General damages” involve mental or
physical pain and suffering, inconvenience, loss of gratification or intellectual or
physical enjoyment, or other losses of lifestyle that cannot be measured
definitively in terms of money. Willis v. Noble Drilling (US), Inc., 11-598 (La.
App. 5 Cir. 11/13/12), 105 So.3d 828, 845; McGee v. A C and S, Inc., 05-1036 (La.
23-CA-298 13 7/10/06), 933 So.2d 770, 774. The factors to be considered in assessing quantum
of damages for pain and suffering are severity and duration. Willis, 105 So.3d at
845; Jenkins v. State ex rel. Dept. of Transp. and Development, 06-1804 (La. App.
1 Cir. 8/19/08), 993 So.2d 749, 767, writ denied, 08-2471 (La. 12/19/08), 996
So.2d 1133.
Upon a de novo review of the record, an appellate court is not constrained to
the lowest or highest amount reasonable for damages. Instead, the appellate court
is authorized to award an amount which represents appropriate compensation for
the damages revealed in the record. Clement v. Carbon, 13-827 (La. App. 5 Cir.
4/9/14), 153 So.3d 460, 465.
At trial, Mr. Gonzalez testified that he felt pain in his neck, back, and left
knee after the accident, and he did not have this pain prior to the accident. The
medical records indicate that Mr. Gonzalez first went to Louisiana Primary Care
Consultants in January 2020 for neck, back, and left knee strains. Mr. Gonzalez
testified that the doctors prescribed pain medication for him, and he received
therapy for his neck, back, and left knee once or twice per week. The medical
records support Mr. Gonzalez’s testimony that he received conservative treatment
for neck, back, and left knee pain, as well as headaches, for approximately eight
months until his pain resolved. The records show he was discharged on August 28,
2020. On cross-examination, Mr. Gonzalez acknowledged that his doctors
recommended an MRI of his cervical spine and left knee, but he did not have this
imaging done.
In determining the amount of general damages to award Mr. Gonzalez, we
have considered prior awards for soft tissue injuries. See, e.g., Caruso v. Academy
Sports and Outdoors, 18-496 (La. App. 5 Cir. 4/24/19), 271 So.3d 355 (upheld
awards of $3,500 in special damages and $21,250 in general damages for
strain/sprain of cervical spine, thoracic spine, and shoulders, along with nose pain
23-CA-298 14 and facial contusions; treated for eight to nine months); Prejeant v. Gray Insurance
Co., 15-87 (La. App. 5 Cir. 9/23/15), 176 So.3d 704 (upheld awards of $5,105 in
medical expenses and $16,000 in general damages for neck, back, and shoulder
soft tissues injuries with eight months of conservative treatment); Romano v.
Jefferson Parish Sheriff’s Office, 13-803 (La. App. 5 Cir. 3/26/14), 138 So.3d 688,
writ denied, 14-700 (La. 5/16/14), 139 So.3d 1028 (upheld awards of $14,243 in
special damages and $2,000 per month, totaling $48,000, in general damages for
two years of conservative treatment due to neck and back pain caused by a car
accident).
Although reviewing courts take prior awards into consideration, general
damages are to be decided on a case-by-case basis. Baudier v. Cheron, 04-5 (La.
App. 5 Cir. 5/26/04), 876 So.2d 165, 173. Considering the testimony and evidence
presented, along with the general damages awards in other cases, we award Mr.
Gonzalez $19,000 in general damages.
DECREE
Based on the foregoing, we reverse the trial court’s judgment and render
judgment in favor of Mr. Gonzalez, finding State Farm liable for his injuries. We
further award Mr. Gonzalez $6,387 in special damages and $19,000 in general
damages, for a total damage award of $25,387.
REVERSED AND RENDERED
23-CA-298 15 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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