STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-419 C/W 11-420 & 11-421
ROGER VESTAL, EMANUEL HAMMONDS, AND JOHNNIE O’HARA
VERSUS
CYNTHIA D. KIRKLAND, SCHNEIDER NATIONAL CARRIERS, INC. AND INS INSURANCE COMPNAY
********** APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, DOCKET NO. C-2007-455, C/W C-2007-566 & C-2007-567 HONORABLE H. WARD FONTENOT, DISTRICT JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, James T. Genovese, and Phyllis M. Keaty, Judges.
AFFIRMED.
W. Jay Luneau 1239 Jackson Street Alexandria, LA 71301 (318) 767-1161 COUNSEL FOR PLAINTIFF/APPELLEE: Cynthia D. Kirkland
D. Randolph Street Street & Street 508 North 31st Street Monroe, LA 71201 (318) 325-4418 COUNSEL FOR PLAINTIFF/APPELLEE: Johnnie O’Hara. C. David Vasser, Jr. Vasser & Vasser 516 Myrtle Hill Drive Baton Rouge, LA 70810 (225) 767-0352 COUNSEL FOR PLAINTIFFS/APPELLEES: Liberty Mutual Fire Ins. Co. and Schneider National Carriers, Inc.
James D. “Buddy” Caldwell, Attorney General Elizabeth B. Hollins, Assistant Attorney General Louisiana Department of Justice, Litigation Division One Lakeshore Drive, Suite 1200 Lake Charles, LA 70629 (337) 491-2880 COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana, DOTD COOKS, Judge.
On November 27, 2006, Cynthia Kirkland was driving a 2006 Freightliner
eighteen-wheeler owned by her employer, Schneider National Carriers. She was
returning from the Proctor & Gamble plant in Pineville, Louisiana, where she had
picked up a trailer loaded with soap products. She was driving south on Louisiana
Highway 165 in Allen Parish when she observed an accident ahead of her. At this
point on Hwy. 165, the road was undergoing construction to change from two to
four lanes. The north-bound construction was completed, but the south-bound
construction was about to begin.
The accident in front of her involved another eighteen wheeler that had lost a
load of lumber. Kirkland began slowing her vehicle. While doing so, her eighteen
wheeler drifted onto the two-foot wide shoulder. There was a difference in
elevation between the shoulder and roadway. When Kirkland’s truck left the
roadway, she attempted to reenter the roadway by decelerating the vehicle and
attempting to steer back onto the paved portion of road. According to Kirkland,
due to the elevation difference between the shoulder and roadway, she encountered
difficulty. When her steering axle tires finally got back up on the roadway, the
vehicle yawed, jack knifed, and overturned onto the passenger side. Kirkland’s
vehicle came to rest on top of a vehicle occupied by Johnnie O’Hara. Kirkland
and O’Hara suffered injuries as a result of the accident.
Kirkland filed proceedings against the State of Louisiana, Department of
Transportation and Development (hereafter DOTD), alleging failure to maintain a
reasonably safe roadway, failure to properly maintain the shoulder, and failure to
warn of an unreasonably dangerous condition. Specifically, Kirkland maintained
the accident occurred because of a drop-off where the roadway meets the shoulder,
which was composed of aggregate. Suit was also filed against DOTD by Kirkland’s employer, Schneider
National Carriers, and its insurer, Liberty Mutual Fire Insurance Company, seeking
reimbursement for workers’ compensation benefits, both indemnity and medical,
paid to Kirkland.
O’Hara also sued Kirkland, her employer and insurer, and DOTD. O’Hara’s
claims against all parties other than DOTD were settled prior to trial. O’Hara’s
claims against DOTD included the failure to maintain a reasonably safe roadway,
failure to properly design, construct or maintain the shoulder, constructing or
maintaining the shoulder with an excessive drop-off, and the failure to warn of an
unreasonably dangerous condition.
The three separate lawsuits were consolidated for trial. After a trial, the jury
returned judgment finding DOTD 80% at fault in causing the accident and
Kirkland was cast with the remaining 20% of fault. Kirkland was awarded
$235,440.00 in general damages and $1,600.00 in future medicals (which reflected
the reduction of 20% for her fault). O’Hara was awarded $480,000.00 in general
and special damages (which reflected the reduction of 20% for Kirkland’s fault).
O’Hara’s award included $18,418.00 in loss of future wages and loss of future
earning capacity.
Both Kirkland and O’Hara filed for Judgments Notwithstanding the Verdict
(JNOV) to increase the amounts awarded. O’Hara contended the jury erred in only
awarding him $18,418.00 in loss of future wages and earning capacity. Kirkland
argued the jury erred in refusing to award amounts proven for past wage loss and
future wage loss and earning capacity. The trial court granted O’Hara’s JNOV and
awarded an additional $300,000.00 for future wage loss and loss of earning
capacity. Kirkland’s award was not changed.
2 The judgment also provided the intervention filed by Kirkland’s employer,
Schneider National Carriers, and its insurer, Liberty Mutual, was granted with the
amount to be established pursuant to a Rule to be filed at a later date.
On appeal, DOTD asserts the following assignments of error:
1. The trial court erred in finding DOTD eighty percent liable in this accident, when the alleged defect was not the cause-in-fact of the motorists’ injuries.
2. The trial court erred in allowing the introduction of prejudicial evidence, maintenance records for the highway following the accident, which was not relevant or necessary to prove the plaintiffs’ case.
3. The trial court erred in disallowing the testimony and evidence of the State’s accident reconstruction expert without a valid or reasonable basis.
4. The trial court erred in granting O’Hara’s JNOV and increasing the future wage loss and loss of earning capacity award as the jury’s award was not manifest error considering the testimony.
5. The trial court properly awarded Kirkland damages for past lost wages when the testimony as a whole is considered.
Kirkland answered DOTD’s appeal, and alleged as error the jury’s failure to award
the amounts proven for past and future wage loss, as well as loss of earning
capacity.
I. Liability of DOTD.
The jury returned a verdict in which it found DOTD 80% at fault and
Kirkland 20% at fault. DOTD argues it was Kirkland’s driving, and not the defect
presented by the shoulder, that was the cause-in-fact of the motorists’ injuries.
Conversely, the plaintiffs aver that the jury’s verdict is well-supported by the
evidence.
DOTD has a legal duty to maintain the public highways in a reasonably safe
condition. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). This duty extends to
the shoulders of the highways as well. Graves v. Page, 96-2201 (La. 11/7/97), 703
So.2d 566; Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170 (La.1986);
3 Rue v. State, Dep’t. of Highways, 372 So.2d 1197 (La.1979). DOTD’s duty to
maintain safe shoulders encompasses the foreseeable risk that for any number of
reasons, “whether as a result of inattentiveness or negligence,” a motorist might
find himself traveling on, or partially on, the shoulder. Petre v. State ex rel. Dep’t.
of Transp. and Dev., 01-876, p. 8 (La. 4/3/02), 817 So.2d 1107, 1112. DOTD’s
duty to maintain the road and shoulder encompasses the risk that a motorist may
travel onto or partially onto the shoulder. See Graves v. Page, 96-2201 (La.
11/7/97), 703 So.2d 566. However, in recognizing the existence of this duty, this
court has held that DOTD is not a guarantor of the safety of those who travel
highways of this state. See Ryland v. Liberty Lloyds Ins. Co., 93-1712 (La.
1/14/94), 630 So.2d 1289. DOTD’s duty to the traveling public is breached only
when the highway at the scene of the accident is found to create an unreasonably
dangerous condition. Petre, 775 So.2d 1107. DOTD’s duty to maintain
reasonably safe roadways encompasses persons who are foreseeably placed in
danger by unreasonably dangerous conditions. Under our comparative negligence
system, even motorists who are slightly exceeding the speed limit, momentarily
inattentive, or otherwise negligent may recover from DOTD. Petre, 775 So.2d at
1259-60, citing Lamaire v. Motor Convoy, Inc., 625 So.2d 638 (La.App. 3
Cir.1993), writ denied, 93-2778 (La.1/7/94), 632 So.2d 754.
Whether a defect presents an unreasonable risk of harm must be decided on
the particular facts and circumstances of each case. See Hunter v. Dep’t. of
Transp. and Dev., 620 So.2d 1149 (La.1993). The jury’s determination in this
regard is factual in nature. We evaluate findings of the trier of fact under the
manifest error or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840
(La.1989). Under the manifest error standard, a factual finding cannot be set aside
unless the appellate court finds that the trier of fact’s determination is manifestly
erroneous or clearly wrong. Stobart v. State, Department of Transportation and
4 Development, 617 So.2d 880 (La.1993). In order to reverse a fact finder’s
determination of fact, an appellate court must review the record in its entirety and
find that a reasonable factual basis does not exist for the finding and that the record
establishes that the fact finder is clearly wrong or manifestly erroneous. Id.
The appellate court is not to re-weigh the evidence or substitute its own
factual findings because it would have decided the case differently. See
Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02),
816 So.2d 270. Where two permissible views of the evidence exist, the fact
finder's choice between them cannot be manifestly erroneous or clearly wrong,
even if the reviewing court would have decided the case differently. Stobart, 618
So.2d 880. Louisiana courts have consistently held that causation is a factual
finding, which should not be reversed on appeal absent manifest error. Id. The
issue to be resolved is not whether the trier of fact was right or wrong, but whether
the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601
So.2d 1349 (La.1992). Thus, even though an appellate court may feel its own
evaluations and inferences are more reasonable than the fact finder’s, reasonable
evaluations of credibility and reasonable inferences of fact should not be disturbed
upon review where testimony conflicts. Id.
Initially, we note DOTD acknowledged it had custody of the highway where
the accident occurred. Further, the record confirmed the highway was accepted by
DOTD from the construction company prior to the accident, as evidenced by a
formal acceptance document signed five days before the accident.
After a thorough review of the record, we find ample evidence was
presented to the jury for it to conclude the drop-off between the roadway and
shoulder was a cause-in-fact of the accident. The jury chose to place more
credibility in the Plaintiffs’ expert rather than DOTD’s expert, which is well within
its province as the trier of fact.
5 Duane Evans, who was a qualified expert in highway design and
reconstruction, testified for Plaintiffs. He found the shoulder and the aggregate
next to it were not level, and exhibited a drop-off in the area of the accident
anywhere from four to ten inches. Mr. Evans specifically testified “[i]f there’s a
significant drop-off of four inches, for instance, it can affect your steering and
cause you to either go toward the ditch or jump back onto the road and not be
headed in the right direction.” He also stated a four inch or greater drop-off
required immediate attention and should be handled on an emergency basis. Mr.
Evans also told the jury that, as per DOTD plans, in the area where the accident
occurred, there should have been a slope of four to one (meaning for every one
foot of slope there should be four feet of road). However, he stated the slope was
approximately two to one, which created a “serious slope,” one which he believed
was “non-recoverable.” He further explained that “a vehicle that gets on [such a
slope] generally will be out of control.” He opined that once Kirkland “lost control
on the slope, the drop-off prevented her [from] recovering that control,” and that
led to her vehicle yawing when it reentered the roadway, and eventually spinning
out of control and overturning.
DOTD attempts to lessen the impact of Mr. Evans testimony by noting he
made no measurements at the scene and relied simply on photographs to determine
the amount of drop-off and slope. However, Mr. Evans testified he relied on the
photographs because, when he went to the accident scene, DOTD had already
begun further construction on the south-bound lanes, and the construction had
significantly changed the shoulder area. He also informed the jury that experts in
similar cases often rely on scene photographs, because they rarely get to the scene
until months or even years after the accident. The jury undoubtedly did not place
much weight on this fact in judging the credibility of Mr. Evans’ testimony,
particularly considering DOTD’s expert, Joseph Blashke, relied on the same
6 photographs in making his conclusions, acknowledging when he visited the
accident site, it looked “nothing” like it did on the date of the accident.
Mr. Blashke, who was also qualified as an expert in highway design and
reconstruction, testified that Kirkland’s actions were the sole cause of the accident.
He believed Kirkland overreacted to leaving the roadway and responded before she
fully left the roadway, causing the tractor-trailer to lose control. Mr. Blashke did
not believe Kirkland’s version of how she left the roadway and her actions
thereafter. Unfortunately for DOTD, the jury chose to believe Kirkland and her
expert, Mr. Evans. Mr. Blashke acknowledged on cross-examination that he gave
his opinion as to what caused the accident before ever reading the testimony of the
eye-witness accounts of the accident. Mr. Blashke also testified he was not sure
what the actual slope of the road was, and even testified in his deposition that the
slope “did not appear to be as flat as four to one” as is appropriate. Further, when
asked “[w]ould you venture a guess that the slope might be closer to two to one
than it is to four to one or would you disagree with that statement?,” Mr. Blashke
responded “I can’t disagree.” He also acknowledged that a two to one slope is
“considered to be non-recoverable.”
DOTD relies heavily on the measurement made by State Trooper Farris that
Kirkland’s tractor-trailer was off the road for approximately 61 feet, to support Mr.
Blashke’s opinion that the accident was primarily caused due to Kirkland’s
“obvious over-correction” and “significant over-steering.” However, as Trooper
Farris testified, he was not trained in accident reconstruction and acknowledged he
did the best he could with the information available, but his measurement was not
exact. The jury also heard the testimony of Mr. Evans that he believed Kirkland’s
vehicle may have been more than 61 feet off the road. Mr. Evans also testified that
even if Kirkland had gone off the road only 61 feet, she could have had enough
7 time to input steering. Thus, the jury was provided with conflicting evidence from
which to choose.
The testimony and photographs in the record confirmed the drop-off in the
area of the accident was between four and six inches. The court in Everhardt v.
Louisiana Department of Transportation & Development, 07-981, p. 19 (La.App. 4
Cir. 2/20/08), 978 So.2d 1036, 1050, noted the multitude of cases finding such a
significant drop-off from the roadway to the shoulder constitutes a defect in the
roadway and, as such, presents an unreasonable risk of harm:
Louisiana jurisprudence is replete with cases holding that a drop-off from the roadway to the shoulder in excess of four inches constitutes a defect in the roadway and presents an unreasonable risk of harm to the traveling public. See LeBlanc v. State of Louisiana, 419 So.2d 853 (La.1982)(four to six-inch drop off of the shoulder created a dangerous hazard); Perez v. State of Louisiana, Through the Dept. of Transp. and Dev., 578 So.2d 1199 (La.App. 4 Cir.1991)(roadway was defective because it had an eight-inch drop from the road to the shoulder and state held to be 40% negligent); Roberts v. State, Through the Dept. of Transp. and Dev., 576 So.2d 85 (La.App. 2 Cir.1991)(three to five-inch drop off constituted an unreasonably dangerous condition); Brown v. State, Through the Dept. of Transp. and Dev., 04-912 (La.App. 5 Cir. 2/15/05), 896 So.2d 1136 (DOTD found liable for accident involving seven to ten- inch drop off); Aday v. State, Through the Dept. of Transp. and Dev., 06-1181 (La.App. 3 Cir. 2/7/07), 950 So.2d 928 (summary judgment granted on the issue of liability in favor of motorists on grounds that a shoulder with a four-and-one-half inch drop off constituted a defect in the shoulder); Bozeman v. State, Through the Dept. of Transp. and Dev., 34,430 (La.App. 2 Cir. 4/4/01), 787 So.2d 357 (a three-inch drop off presents an unreasonable risk of harm); Guzman v. State, Through the Dept. of Transp. and Dev., 95-0957 (La.App. 1 Cir. 12/15/95), 664 So.2d 1343 (a three-inch drop off found to constitute a defect with the state being held 50% liable); Hood v. State, Through the Dept. of Transp. and Dev., 587 So.2d 755 (La.App. 2 Cir.1991)(a four-inch shoulder drop off deemed unreasonably dangerous to normal use); Caruthers v. State, Through the Dept. of Transp. and Dev., 97-1450 (La.App. 3 Cir. 4/15/98), 711 So.2d 420 (generally, a roadway is considered defective and unreasonably dangerous when the depth of its drop off exceeds two inches).
After a thorough review of the testimony and evidence presented to the jury, we
find no error in its conclusion that the roadway was defective and presented an
8 unreasonable risk of harm. Thus, we affirm the jury’s finding that DOTD was
eighty percent at fault in causing this accident.
II. Admission of Maintenance Records.
In its second assignment of error, DOTD contends the trial court erred when
it admitted certain maintenance records for the highway following the accident.
Specifically, DOTD argues the introduction of this “prejudicial evidence” inflamed
the jury and was not even necessary to prove plaintiffs’ case. However, the record
established DOTD failed to make a contemporaneous objection when the
documents were introduced. “To preserve an evidentiary issue for appellate
review, it is essential that the complaining party enter a contemporaneous objection
to the evidence or testimony, and state the reasons for the objection.” LaHaye v.
Allstate Ins. Co., 570 So.2d 460, 466 (La.1990); see also Ewing v. State ex rel.
Dep’t. of Transp. and Dev., 99-1556 (La.App. 3 Cir. 3/15/00), 757 So.2d 843;
Himel v. State ex rel. Dep’t. of Transp. and Dev., 04-274 (La.App. 5 Cir.
10/12/04), 887 So.2d 131, writ denied, 04-2802 (La. 3/18/05), 896 So.2d 999.
Failure to object to the introduction of evidence constitutes a waiver of right to
object on appeal. LaHaye, 570 So.2d 460. Thus, we find no merit in this
assignment.
III. Exclusion of Expert’s Testimony.
In its next assignment of error, DOTD contends the trial court erred in
“disallowing the testimony and evidence of the State’s accident reconstruction
expert without a valid or reasonable basis.” Presumably, DOTD refers to the
testimony of Marshall Lyles, although no name is ever listed in DOTD’s brief.
Plaintiffs filed a motion in limine seeking to have the trial court exclude the
testimony of Lyles. Following a hearing, the trial court granted the motion finding
that Lyles’ testimony would be speculative because he used several “default
values” which may or may not have been accurate, and he failed to identify the
9 studies, surveys, treatises or other documents used to support his opinions.
Combining this with the fact that the trial court believed Lyles’ testimony would be
cumulative, as the State presented other accident reconstruction experts, the trial
court granted the motion in limine and excluded Lyles’ testimony.
The law is clear when a trial court excludes or limits the testimony of a
witness, a proffer can be made. La.Code Civ.P. art. 1636. It is incumbent upon the
party who contends its evidence was improperly excluded to make a proffer, and if
it fails to do so, it waives its right to complain of the exclusion on appeal.
Fontenot v. Fontenot, 621 So.2d 843 (La.App. 3 Cir.1993), rev’d on other
grounds, 93-2479 (La. 4/11/94), 635 So.2d 219; Goodwin v. Goodwin, 618 So.2d
579 (La.App. 2 Cir.), writ denied, 623 So.2d 1340 (La.1993). Our review of the
record confirms that the trial court specifically asked all parties if they required any
proffers to be made. The purpose of a proffer is to preserve evidence excluded by
the trial court so that the evidence is available for appellate review. McLean v.
Hunter, 495 So.2d 1298 (La.1986). DOTD did not proffer Lyles’ testimony,
therefore, we have no way of knowing what his testimony would have been.
Accordingly, it is precluded from complaining that his testimony was excluded.
IV. Grant of JNOV in Favor of O’Hara.
DOTD argues the trial court erred in granting O’Hara’s JNOV and
increasing his future wage loss and loss of earning capacity award from $18,418.00
to $300,000.00.
The record established O’Hara was a passenger in the right passenger seat of
the vehicle which was struck by Kirkland’s eighteen-wheeler. He suffered serious
injuries as a result of the accident, including lower back injuries which required
two-level lumbar fusion surgery. The record established O’Hara incurred
$147,000.00 in medical expenses, all of which were stipulated to be related to the
accident. He was unable to work for a lengthy period of time, and has been unable
10 to return to his duties as a pipefitter due to the physical limitations brought about
by the injuries suffered in the accident.
The testimonies of Dr. Bernie McHugh, the neurosurgeon who performed
O’Hara’s fusion surgery, and Dr. John Ledbetter, O’Hara’s pain management
physician, were steadfast that O’Hara would be unable to return to pipefitting or
similarly physically demanding work. Dr. McHugh opined that O’Hara would be
unable to engage in “heavy lifting, climbing, carrying heavy things . . . excessive
bending and stooping and squatting.” Any employment he engaged in would have
to allow for frequent position changes. O’Hara testified his employment history
included jobs as a pipefitter, welder, and truck driver. The medical testimony
clearly established he would be unable to work in any of these positions in the
future because of his injuries.
Dr. Charles Bettinger, an expert in the field of economics and statistics,
conducted an economic analysis of O’Hara’s past and future earnings losses. In
calculating the future economic loss, Dr. Bettinger based his figures on the
assumption that O’Hara would be able to return to full-time work earning entry
level wages. Subtracting those prospective wages from what O’Hara would have
earned working as a pipefitter, Dr. Bettinger calculated the future loss of earning
capacity to be slightly in excess of $600,000.00.
DOTD notes that while the case was pending, O’Hara pled guilty to Illegal
Possession of a Firearm, a felony. Counsel for O’Hara filed a motion in limine
in an attempt to keep evidence of this conviction from the jury. The trial court
denied the motion in limine. In lieu of O’Hara’s plea, Dr. Bettinger was requested
to revise his calculations to delete five years of future earnings to reflect the
maximum term of imprisonment to which O’Hara was potentially subject. O’Hara
argues there was no evidence presented at trial that indicated a felony conviction
11 would have prevented him from earning wages in the future, other than during any
possible period of incarceration.
In its verdict, the jury determined O’Hara was entitled to an award for loss
of future earning capacity, but rendered only $18,418.00, which was significantly
below any amount testified as appropriate by Dr. Bettinger. O’Hara then filed for
JNOV, contending the jury failed to make a reasonable award for his loss of future
earnings and loss of earning capacity. The trial court agreed and granted the
JNOV, finding the evidence pointed so overwhelmingly in favor of O’Hara that
reasonable and fair-minded jurors in the exercise of impartial judgment should
have concluded O’Hara suffered a greater loss of future earnings and loss of
earning capacity than $18,418.00. The trial court raised the award to $300,000.00.
Louisiana Code of Civil Procedure Article 1811 provides for the trial court’s
use of a JNOV as being “warranted when the facts and inferences point so strongly
and overwhelmingly in favor of one party that the trial court believes that
reasonable persons could not arrive at a contrary verdict.” Forbes v. Cockerham,
08-762, p. 30 (La. 1/21/09), 5 So.3d 839, 857. A trial court should enter a JNOV
“only when the evidence points so strongly in favor of the moving party that
reasonable persons could not reach different conclusions.” Id. It is not sufficient
that there is a preponderance of evidence for the mover. Davis v. Wal-Mart Stores,
Inc., 00-445 (La. 11/28/00), 774 So.2d 84. Rather, “[i]f there is evidence opposed
to the motion which is of such quality and weight that reasonable and fair-minded
men in the exercise of impartial judgment might reach different conclusions, the
motion should be denied.” Id. at 89. In considering this point, the trial court
should not evaluate the credibility of the witnesses. Id. Finally, the trial court
must resolve all reasonable inferences or factual questions in favor of the non-
moving party. Id.
12 On review of a JNOV, an appellate court’s inquiry is two-fold. Davis, 774
So.2d 84. First, we must determine whether the trial court erred in granting the
JNOV. Id. Therefore, the appellate court considers “whether the facts and
inferences point so strongly and overwhelmingly in favor of the moving party that
reasonable persons could not arrive at a contrary verdict.” Forbes, 5 So.3d at 858.
If the appellate court concludes that reasonable persons might reach a different
conclusion, the trial court’s granting of the motion was erroneous, and the jury
verdict should be reinstated. Id. However, if the trial court applied the correct
standard, the appellate court reviews the JNOV using the manifest error standard of
review. Davis, 774 So.2d 84.
In reviewing the trial judge’s decision to grant plaintiff’s motion for JNOV
on the issue of damages for loss of future earnings and loss of earning capacity
damages, we conclude that the motion was properly granted. We have already
detailed the medical testimony that established O’Hara’s significant physical
injuries, including a two-level lumbar fusion surgery. The medical testimony also
established, although O’Hara could do some type of entry-level employment, his
physical limitations would prevent him from returning to the type of employment
he previously performed, thus impacting the amount of money he could earn. The
trial court did find an award for loss of future earnings and loss of earning capacity
was warranted, but the amount awarded was woefully inadequate considering the
medical and expert testimony found in the record. The trial court, in his oral
reasons to grant the JNOV in favor of O’Hara, specifically found to reach the
amount it did, the “jury would have had to come to an assumption that he simply
was not going to work again. . .” The trial court did not err in granting the JNOV
in this regard.
Having determined that the trial judge properly granted the JNOV as to the
jury’s award of loss of future earning capacity and loss of earning capacity to
13 O’Hara, we now turn to a review of the award of the JNOV ($300,000.00) by the
trial judge. The appellate court reviews the trial court’s award of damages
pursuant to the JNOV using the manifest error standard regarding the factual
matters pertaining to the damages. Davis, 774 So.2d 84. Dr. Bettinger’s
calculations, including the one that factored in the felony arrest, were in excess of
the trial court’s award of $300,000.00. Thus, we find no manifest error in the trial
court’s award.
IV. Damages Awarded Kirkland.
Kirkland answered DOTD’s appeal and assigns as error the amount of
damages the jury awarded for her past and future wage loss, as well as loss of
earning capacity. Kirkland was awarded $74,000.00 in past lost wages and
$25,000.00 in future wage loss and loss of earning capacity.
Dr. Todd Drury testified that Kirkland will be unable to return to her job as a
truck driver. Dr. Pat Culbertson, an economist, testified Kirkland was entitled to
$91,882.00 in past wages. He based this on her past twenty-six weeks of wages
earned as a truck driver. However, the record indicated Kirkland exhibited a wide
disparity of earning ability during her brief career as a truck driver. She was not a
salaried employee, but was at the mercy of the work that was available at the time.
Thus, the jury’s award of $74,000.00 in lost wages may well have reflected that
testimony.
As to the loss of future earning capacity, Dr. Culbertson testified if Kirkland
worked to age 62.3 earning the wages she had in the 26 weeks prior to the injury,
she would have a loss of future earning capacity of approximately $64,000.00. If
she worked to 66, the amount would be approximately $118,000.00. The jury was
presented with evidence that Kirkland currently had a new job for which she
earned wages. Although the wages she earned in her new employment were not as
much as she earned as a truck driver, there was testimony that her wages could
14 increase with time. The jury was also informed of several extended periods of
unemployment prior to Kirkland becoming a truck driver. This evidence may have
influenced the jury’s decision to award less than that forecast by Dr. Culbertson.
In its oral reasons for denying the JNOV as to Kirkland, the trial court stated
the following:
On the Kirkland motion [for JNOV], the economist made certain predictions, but those predictions were made – were based on assumptions which were explained to the jury. And a jury is not required to accept all of the assumptions and they’re not required to accept an economist’s speculations, which is pejorative term, but it is a speculative type figure. They’re not required to accept them in total. The range which the jury decided to accept, the Court feels was in a – in the area of reasonableness. So the Court will deny the Motion for JNOV in that claim.
We find no error in the trial court’s denial of the JNOV as to Kirkland. The
evidence did not point so strongly in favor of her that reasonable persons could not
reach different conclusions.
DECREE
For the foregoing reasons, the lower court’s judgment is affirmed. All costs
of this appeal are assessed to defendant-appellant, the State of Louisiana, through
the Department of Transportation and Development.