Smith v. Louisiana Farm Bureau Cas. Ins. Co.

603 So. 2d 199, 1992 WL 109805
CourtLouisiana Court of Appeal
DecidedMay 20, 1992
Docket90-1306
StatusPublished
Cited by13 cases

This text of 603 So. 2d 199 (Smith v. Louisiana Farm Bureau Cas. Ins. Co.) 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
Smith v. Louisiana Farm Bureau Cas. Ins. Co., 603 So. 2d 199, 1992 WL 109805 (La. Ct. App. 1992).

Opinion

603 So.2d 199 (1992)

Katherine Sue SMITH, Plaintiff-Appellant,
v.
LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, et al., Defendant-Appellee.

No. 90-1306.

Court of Appeal of Louisiana, Third Circuit.

May 20, 1992.
Writ Denied October 9, 1992.

*200 Wm. Henry Sanders, Jena, for plaintiff/appellant.

Cotton, Bolton, Hoychick & Doughty, Terry Doughty, Rayville, for defendant/appellant.

*201 Before YELVERTON and KNOLL, JJ., and MARCANTEL,[*] J. Pro Tem.

KNOLL, Judge.

This appeal involves a tort suit by Katherine Sue Smith against Louisiana Farm Bureau Casualty Insurance Company for damages she received when she was bitten by a pet raccoon at the residence of Farm Bureau's insured, Lester Fannin.

The jury awarded Smith $35,000 for pain and suffering, past and future, $26,000 for medical expenses, past and future, and $38,000 for loss of wages, past and future. It assigned 60% fault to Farm Bureau's insured, Fannin, and 40% to Smith. Smith's claim for penalties against Farm Bureau for arbitrary and capricious failure to pay her medical expenses was denied. The trial court assessed court costs 60% to Farm Bureau and 40% to Smith.

Farm Bureau appealed contending that the jury's awards for medical expenses and loss of wages were not supported by the evidence.

Smith answered the appeal and filed a separate appeal, contending that: (1) the jury erred in finding her 40% at fault; (2) the jury awarded an insufficient sum for general damages, as well as future loss of wages and loss of earning capacity; and, (3) the trial judge erred in assessing 40% of the court costs to her.

FACTS

Lester Fannin, Smith's brother-in-law, owned a pet raccoon which he kept caged at his home. On May 25, 1988, at approximately 4 p.m. Mrs. Fannin was bitten on the arm by the raccoon as she was trying to return it after cleaning its cage.

After seeking medical attention and returning home, Mrs. Fannin was joined by Smith who helped her prepare supper. While cooking supper, Smith put aside scraps for the raccoon. When Smith was placing the food in the cage, the raccoon attacked her, biting her on the thigh and left ankle.

The facts following Smith's raccoon bite will be elaborated upon in the treatment and analysis of the assignments of error raised.

COMPARATIVE FAULT

Smith contends that the jury was manifestly erroneous in finding her 40% at fault in causing her injuries. We affirm.

Farm Bureau has not contested the jury's finding that it was liable for Smith's injuries. Therefore, we are not called upon to determine whether Farm Bureau's insured was negligent, strictly liable, or absolutely liable.

Likewise, since Smith did not object to the instructions given to the jury on the applicability of comparative fault to the facts of the case, we are not asked to determine whether such instructions were properly given.

Instead, our task on appeal is to determine whether the jury, as instructed by the trial judge, was manifestly erroneous in its determination that Smith was 40% at fault.

In determining the percentage of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Uniform Comparative Fault Act, 2(b) as referred to in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). The manifest error/clearly wrong standard applies to an appellate court's review of factors that may influence a fact finder's determination of comparative fault. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991).

In the case sub judice, the trial court instructed the jury as follows:

"Under the law if the plaintiff is injured as a result partly of her own fault and partly as a result of the fault of the defendant, the claim for damages shall not be defeated, but the amount of damages *202 shall be reduced in proportion to the degree or percentage of fault attributed to the plaintiff. That is to say, if you find the defendant to be at fault, and you also find fault on the part of the plaintiff, the plaintiff's claim shall not be denied, but you shall fix a percentage of fault attributed to the plaintiff. Stated another way, a person suffers injury as a result partly of his own fault and partly of the fault of another person, or persons, the claim for damages shall not be thereby defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of fault attributable to the person suffering the injury. The proper procedure to be followed by the jury in comparing the fault of of the parties and returning a verdict in favor of the plaintiff for a reduced amount based upon that comparison is, first, determine the full amount of all damages sustained by the plaintiff as a proximate result of the accident. Next compare the negligence or fault of the parties by determining what proportions figured in a percentage of plaintiff's own fault which contributed as the approximate cause of all damages suffered by the plaintiff. Then reduce the full amount of plaintiff's damages by subtracting a sum equal to the percentage of the total of all damages which were caused by plaintiff's contributory negligence and return a verdict in favor of the plaintiff for the amount remaining.
* * * * * *
In this case, the standard applicable to the plaintiff's conduct is a requirement that she exercise apt degree of care which we might reasonably expect of a person to exercise for her own safety and protection. On this issue defendants have the burden of proof. In other words, the defendants have the burden of establishing by compliance [sic] of the evidence that the plaintiff in this case fails to conform to the standard and by that failure contributed to her injury. If the defendants convince you of that then you must assign a percentage of negligence to the plaintiff and reduce the award to her accordingly.
* * * * * *
It is the defense of strict liability case under Article 2321 if the damages were caused by ... the fault of the victim, fault of a third (3rd) party, or by a fortuitous event. Fault of the victim means the conduct of the victim was a substantial factor in causing the injury complained of. Victim fault must rise to the level of causing the accident before it will bar recovery. If you find that the plaintiff was contributorily negligent, then you must prove that she is guilty of victim fault and you must reduce the damages in proportion to her fault applying factors which I have given to you in determining comparative fault. You are instructed that wild or undomesticated animals are considered inherently dangerous and anyone who owns one does so at his own peril and is liable for all injuries caused by it. You are instructed that any person has the right to keep a wild animal his right to exhibit it is of necessity judicially recognized. Nevertheless, a person thus privileged assumes obligations of an insured to the public generally and as such, keeps animals at this peril. You are instructed that ... animals ferra natura, a category embracing wild animals, undomesticated animals, such as ... coons, ... are considered to be inherently dangerous and anyone who owns them and harbors them does so at his peril."

Smith argues that there was no causal relationship between her action in taking food to the raccoon's cage and the harm she sustained.

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Cite This Page — Counsel Stack

Bluebook (online)
603 So. 2d 199, 1992 WL 109805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-louisiana-farm-bureau-cas-ins-co-lactapp-1992.