Schexneider v. Louisiana Dept. of Health and Hospitals

660 So. 2d 508, 95 La.App. 3 Cir. 32, 1995 La. App. LEXIS 1779, 1995 WL 353588
CourtLouisiana Court of Appeal
DecidedJune 14, 1995
Docket95-32
StatusPublished
Cited by4 cases

This text of 660 So. 2d 508 (Schexneider v. Louisiana Dept. of Health and Hospitals) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schexneider v. Louisiana Dept. of Health and Hospitals, 660 So. 2d 508, 95 La.App. 3 Cir. 32, 1995 La. App. LEXIS 1779, 1995 WL 353588 (La. Ct. App. 1995).

Opinion

660 So.2d 508 (1995)

Evans and Shirley SCHEXNEIDER, Plaintiffs-Appellees,
v.
LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, Defendant-Appellant.

No. 95-32.

Court of Appeal of Louisiana, Third Circuit.

June 14, 1995.
Rehearing Denied October 10, 1995.

*509 J. Clemille Simon, for Evans & Shirley Schexneider.

Robert L. Bussey, for La. Dept. of Health & Hospitals.

Miles A. Matt, for J. Minos Simon.

Before DOUCET, C.J., and THIBODEAUX and PETERS, JJ.

PETERS, Judge.

The plaintiffs, Evans and Shirley Schexneider, are the parents of Peggy Sue Schexneider, who died at the Pinecrest Development *510 Center in Rapides Parish, Louisiana, on March 10, 1992. They brought wrongful death and survival actions against the Louisiana Department of Health and Hospitals seeking to recover damages suffered as a result of their daughter's death. The trial court rendered judgment in favor of the plaintiffs awarding each $150,000.00 in general damages and $8,594.00 in funeral expenses for Peggy Sue's wrongful death but rejected the survival action. The defendant has appealed. The plaintiffs have answered the appeal seeking reversal of the survival action denial as well as an increase in the award for wrongful death. Additionally, the plaintiffs seek recognition of certain expenses as court costs.

DISCUSSION OF THE RECORD

Seven children were born of the marriage of Evans and Shirley Schexneider. One of these children, Peggy Sue, was born on April 23, 1958. At birth, Peggy Sue appeared to be a healthy baby, but within four months after her birth, she experienced her first seizure. Medical tests revealed that Peggy Sue suffered from epilepsy and mental retardation.

Peggy Sue's parents attempted to maintain her in their home, but the problems associated with her condition became so insurmountable that they were advised to have her placed in a facility for children with similar mental and physical disabilities. On October 28, 1963, Peggy Sue was placed in Pinecrest Development Center, a facility in Pineville, Louisiana, operated by the Louisiana Department of Health and Hospitals. Peggy Sue remained at Pinecrest Development Center until her death on March 10, 1992.

On the evening of March 10, 1992, Peggy Sue attempted to bathe unattended and unsupervised. Sometime after she began her bath, she was discovered seated in the bathtub, slumped forward with her mouth and nose submerged in the water. Despite CPR efforts of several Pinecrest and emergency medical personnel, Peggy Sue died. An autopsy revealed that the cause of death was drowning. The parents then brought this action for damages.

ANALYSIS

Wrongful Death Action

The surviving parents of one who dies due to the fault of another may recover damages for their loss if the deceased left no spouse or children. La.Civ.Code art. 2315.2(A)(2). Peggy Sue was never married and never had any children. Therefore, the plaintiffs are entitled to recover for their loss. The defendant contends the award of $150,000.00 per parent is excessive, and the plaintiffs contend it is abusively low.

A reviewing court should not disturb the trial court's award of general damages absent an initial determination that the trial court abused its very great discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the supreme court recently gave additional guidance to the courts of appeal in the standards to be applied in reviewing general damage awards:

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck to the present case is that the discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, 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 that the appellate court should increase or reduce the award.

*511 The defendant contends that the testimony presented by the plaintiffs relates primarily to their relationship with Peggy Sue as it existed during Peggy Sue's childhood and that this relationship did not remain so close over the years as to justify an award of $150,000.00 for each parent. The defendant points out that Peggy Sue was only five years old when she left her parents home and had lived at Pinecrest almost twenty-nine years at the time of her death. In its reasons for judgment, the trial court considered the entire history of the relationship between Peggy Sue and her parents and made the following findings of fact:

Shirley Schexneider gave birth to a healthy baby girl on April 23, 1958. Her parents named her Peggy. When Peggy was three-and-one-half months old, she had her first epileptic seizure. Her parents were told that the seizure was caused by a high fever associated with a tonsillitis condition that Peggy had. However, the seizures persisted even after her tonsils were removed.
Decedent's condition required a lot of care, time, and attention. Plaintiffs tried to care for her, but found it too difficult and enrolled her in Pinecrest when she was five years old. However, Decedent's parents would bring Peggy home on home furloughs. The evidence reflects that these were very precious visits with her family. Decedent would go to restaurants, church, the park, visit relatives, and sing carols with her family. Decedent participated in all the activities that her family had or did. Although her intelligence level was that of a one-and-one-half to three year old, she participated to the same degree as a child of that age.
Decedent was allowed to spend a maximum of forty-five days on home furloughs or visits per year. Decedent's parents took advantage of almost all of these days, absent any illness or accident of Decedent. The family not only brought Decedent home, they would also occasionally visit her at Pinecrest. These visits were terminated because Decedent would become upset and violent when her family would try to leave; consequently, they decreased the frequency of their Pinecrest visits.
Decedent's parents continued to show great interest in their daughter's care and progress. They would call and talk with Decedent on the phone. Shirley Schexneider would also write to the Social Services Department at Pinecrest to inquire as to Decedent's health and well-being; further, she wanted to find out how she could better help Decedent. Additionally, according to an Interdisciplinary Team Annual Report of February 24, 1992, Decedent's interaction with her family was excellent.

Findings of fact by the trial court may not be set aside by this court unless they are found to be manifestly erroneous or clearly wrong.

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660 So. 2d 508, 95 La.App. 3 Cir. 32, 1995 La. App. LEXIS 1779, 1995 WL 353588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schexneider-v-louisiana-dept-of-health-and-hospitals-lactapp-1995.