STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-504
STEPHEN MICHAEL “DUKE” ALLGOOD, ET UX.
VERSUS
ROCH BORDELON, ET AL.
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2009-3899-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
GENOVESE, J, concurs in the result.
REVERSED AND RENDERED.
Howard B. Gist, III The Gist Firm P. O. Box 13705 Alexandria, LA 71315 (318) 448-1632 COUNSEL FOR DEFENDANT/APPELLEE: Avoyelles Parish School Board Rodney M. Rabalais Attorney at Law P. O. Box 447 Marksville, LA 71351 (318) 253-4622 COUNSEL FOR DEFENDANT/APPELLEE: Roch Bordelon
Victor H. Sooter Sooter & Associates P. O. Box 1671 Alexandria, LA 71309 (318) 448-8301 COUNSEL FOR PLAINTIFFS/APPELLANTS: Stephen Michael “Duke” Allgood Patricia Allgood GREMILLION, Judge.
Appellants, Stephan Michael “Duke” Allgood and his wife, Patricia Allgood,
appeal an adverse jury verdict in favor of the Avoyelles Parish School Board and
Roch M. Bordelon. For the reasons that follow, we reverse and render.
FACTS AND PROCEDURAL HISTORY
On Sunday, January 25, 2009, Bordelon was employed by the Avoyelles
Parish School Board as the girls’ basketball coach for Marksville High School. A
practice was scheduled for that day, but Bordelon arrived with an alcoholic
beverage in his hand. He appeared highly agitated, and as practice proceeded, that
appearance was confirmed.
The following morning, Allgood, the principal of the school, accompanied
by Coach Chris Dupuy, went to Bordelon’s home to check on his condition, as he
had not arrived at school. Dupuy and Allgood found Bordelon at his home. He
appeared agitated and told them he did not want them in his house. Bordelon
indicated that he wanted to go to a pharmacy and to his church. Allgood
accompanied Bordelon, and Dupuy followed them shortly thereafter.
At the church, Bordelon spoke with the pastor. This discussion was held in
private, but Bordelon was heard yelling at first. Apparently the pastor was able to
calm Bordelon down. After they emerged, Bordelon saw his father there and again
became agitated, because he did not understand why someone would have
involved his father in this situation. Bordelon then left, and Allgood and Dupuy
returned to the school.
Sometime after this, Bordelon went to the school and met with Allgood in
the his office. Bordelon was overheard screaming and cursing—which he denied—at Allgood. He then exited Allgood’s office, still in a state of high
agitation. Allgood followed Bordelon down the hall and out of the building.
The events that followed were disputed in Bordelon’s testimony and that of
the other witnesses. Bordelon claimed that he berated Allgood for not standing up
to the Avoyelles Parish School Superintendent, Dwayne Lemoine, who had
decided that Bordelon should be placed on paid administrative suspension. He also
claimed that he accused Allgood of gambling on the school-owned computer in his
office. According to Bordelon, Allgood became agitated himself and began yelling
at him in a manner that spittle struck Bordelon’s face. Bordelon then spat back in
Allgood’s face. Allgood then struck Bordelon with an open hand, and Bordelon
then grabbed Allgood, threw him to the ground, and kicked him. As will be
discussed below, other witnesses, including Allgood, testified to a very divergent
scenario.
Allgood sought medical treatment for temporomandibular joint dysfunction
(TMJ) and other injuries. He filed suit against Bordelon and the Avoyelles Parish
School Board. The matter was tried to a jury, which found that Bordelon had
committed a battery upon Allgood, that Allgood was sixty percent comparatively
at fault in the incident, and that he should be awarded no money. Allgood then
perfected this devolutive appeal, asserting the following assignments of error:
The jury verdict and resultant Judgment are contrary to the law and the evidence in the following particulars:
A. Re: Damages
1. The jury committed an error of law by not awarding the medical expenses that were stipulated to by the parties, with such Stipulation being entered into evidence without objection.
2 2. The jury committed an error of law by not awarding general damages where liability was found against the defendant and special damages were stipulated to by all counsel for all parties.
3. The jury committed an error of law by not awarding damages for future medicals expenses [sic] despite the unchallenged testimony or [sic] board certified oral surgeons and medical doctors.
4. The jury committed an error of law by not awarding any damages for loss of consortium, given that such damages are derivative of the personal injury claim.
B. Re: Liability
That the jury committed an error of law is finding that Roch Bordelon was not within the course and scope of his employment with the Avoyelles [P]arish [S]chool [B]oard at the time that the battery occurred.
C. Comparative Fault
That the jury committed error of law in finding that Plaintiff herein, Stephen Michael “Duke” Allgood, did not commit any intentional act that caused [or] contributed to the battery. Therefore, the jury's apportionment of 60% of the fault in causing the battery to plaintiff is contrary to the law and evidence.
D. Costs of Court
That court costs should be assessed against both defendants, to include court reporter invoices for videotape depositions offered at trial without objection, as well as expert witness fees for all physicians qualified and accepted as experts in this case.
E. That the trial judge committed error in not granting Plaintiff-Appellants Motion for Judgment NOV/ New Trial.
3 ANALYSIS
The tort of battery is defined as, “A harmful or offensive contact with a
person, resulting from an act intended to cause the plaintiff to suffer such a
contact.” Caudle v. Betts, 512 So.2d 389, 391 (La.1987). The issue is whether the
defendant intended to inflict either a harmful or offensive contact without the
other’s consent, and not whether he intended to cause damage or injury. Landry v.
Bellanger, 02-1443, p. 6 (La. 5/20/03), 851 So.2d 943. When a battery is the
subject of a civil action, courts are mandated by La.Civ.Code art. 2323 to assess
the fault of all parties whose intentional conduct contributed to the plaintiff’s
damages. Id.
Allocation of fault
No party disputes that Bordelon committed a battery upon Allgood; the issue
is what, if anything, Allgood did to contribute to that battery. The jury found
Allgood 60% at fault in the altercation. This finding is subject to review under the
manifest error standard. Layssard v. State, Dep’t of Pub. Safety & Corr., 07-78
(La.App. 3 Cir. 8/8/07), 963 So.2d 1053, writ denied, 07-1821 (La. 11/9/07), 967
So.2d 511. Under the manifest error standard, we must decide whether the
findings of fact are reasonable, even though we may feel our own evaluations and
conclusions are more reasonable. Stobart v. State, through Dep’t of Transp. &
Dev., 617 So.2d 880 (La.1993). Of this test, the supreme court has stated:
In Stobart v. State, through DOTD, 617 So.2d 880 (La.1993), this court set forth a two-part test for the reversal of the fact-finder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
4 Purvis v. Grant Parish Sch. Bd., 13-1424, p. 4 (La. 2/14/14), 144 So.3d 922, 926.
When there is conflicting or contradictory evidence or where the finder of fact’s
decision was based on assessments of credibility, “that finding can virtually never
be manifestly erroneous.” Id.
The testimony regarding this altercation between Allgood and Bordelon
varied in detail. Bordelon’s description was:
Q: Well after you left the [school’s] door, he’s following you and he’s trying to talk to you and you’re not listening, you’re not turning around, you’re not acknowledging him, right?
A: (INAUDIBLE).
Q: But at some point you do stop?
A: I do, right after, he was asking me, he says “Roch, what the fuck are you doing, what the fuck is going on”.
Q: So you’re saying that you specifically recall principal Allgood dropping the F bomb, but you don’t recall dropping the F bombs down the hall or in his office or going outside, is that right?
A: That is correct. Now in his office I didn’t, in the hallway I just don’t recall and I know for surely that I didn’t in his office. ....
Q: So at some point you turned around-and you maintained that principal Allgood said “Roch, what the F are you doing”?
A: Correct and “what the fuck is going on”, “what the F are you doing”.
Q: So you turned around and then what did you do then?
A: Yep.
Q: And then what did you do then?
A: And then I turned around and I said “what are you doing” he was asking me what the F am I doing so I said “what are you doing” I said, “why are you doing this”, I said, “I’ve never been in trouble before, never been in trouble, never had anything, what are you doing this, why are you taking my girls away”, I said, “you see the gym right there that’s therapy for me, why are you doing this” he says, “uh
5 uh, you want to know why, you want to know why, cause you brought an alcoholic beverage on school grounds yesterday” I said, “how do you know it wasn't a virgin daiquiri...”
Q: That wasn’t the case though was it, Mr. Bordelon, you admitted to the jury earlier this morning...
A: No, no, it was an alcoholic beverage I was just making a point. I said “how you know it wasn’t a virgin daiquiri” and before he could say anything else I said, “well I guess I’m just as guilty as somebody who gambles on school computers” and that’s when he turned beet red and started, “uh uh uh” and he got in my face and yelled “you’re fired”.
Q: Then what did you do?
A: Well as he...when he gets mad he spits, but he didn’t mean it directly, but indirectly when he got in my face, I could have kissed him, and salvia [sic] it hit me but it was indirectly, I spit on him.
Q: So you spit in the face of your supervisor who...
A: Correct.
Q: ...had been following you since he left his office and you would not turn around to acknowledge him, so you spit in his face?
A: Right after, yeah I could have kissed him he was so close.
Q: If somebody spits in your face, what are you going to do?
A: I don’t know, but I’m for sure not going to get up in somebody’s face and yell “your [sic] fired”. I don’t know what I would do if somebody would spit in my face.
....
Q: So now you spit in principal Allgood’s face, what happens after that?
A: He hit me.
Q: Then what happened?
A: And then we got together and tussled and we hit each other.
6 A: That was it, it only lasted a couple of seconds. We were fighting, he hit me above in the temple, cause I ducked and he hit me right here. I grabbed him with my left hand, he grabbed me with his left hand and there’s two right that were going and I’ll describe it to you like I did the other day, like it was a hockey fight when you’re grabbing somebody and just the one hand is swinging and that’s what happened. We were underneath the walkway and you have about a three to four inch lip that’s still there right now today and while we were tussling, he fell. When he fell, right when he fell he started to lunge and I kicked him.
Other witnesses gave accounts that dramatically diverged from Bordelon’s.
Coach Randy Price, who was the girls’ softball coach at the time, was a short
distance away at the softball field. His testimony was:
A: I was at the girls softball field, I was working on my field and I heard what sounded like people talking, I looked up and at that time I saw Roch coming out of the main building and Duke was behind him. I heard Roch say, “what the fuck do you want”...
Q: And this would be Mr. Bordelon saying that?
A: Yeah, Mr. Bordelon.
Q: All right.
A: Mr. Allgood then responded back with “Roch, I just want to help you”, at that time...
Q: You heard that distinctly?
A: Yes, I did.
Q: Then after that what happened?
A: I looked back down at what I was doing and I heard noise, I looked up and I saw Mr. Bordelon throwing punches at Mr. Allgood. I then jumped over the wall that I was working at, it’s a small wall, I was able to get over easy, started running through the parking lot, across the road. At that time I saw Mr. Allgood was down on all fours and I saw Mr. Bordelon what looked like was kicking at him, I never saw him kick him per say[sic], but it looked he was kicking at him. At that time I began hollering, I’m not for sure what I was saying, probably hey or something like that, and Mr. Bordelon then started walking toward me and as we approached, we really never made any kind of eye contact and I stopped and he made a statement that said “now look who needs help”.
7 Math teacher Adra Hukins’ classroom looked onto the courtyard where the
altercation occurred. She testified:
A: Okay, it was fifth period if I remember correctly and all of sudden I heard a lot of loud hollering, it sounded primarily like the voice of one person. As a classroom teacher I immediately went to my classroom door to look out in the hallway to see what kind of commotion was going on, I did not see anybody at that point because they were in motion. I went back into my classroom and was continuing to hear everything and when I looked out the glass door, cause [sic] where my classroom was there was actually a glass exit door to go out into the courtyard, at that point I could see Mr. Allgood and Mr. Bordelon walking down the sidewalk.
Q: Did you ever determine who [it] was that was yelling?
A: Yes, it was pretty obvious who was yelling. From what I could see it looked like Mr. Allgood was trying to escort Mr. Bordelon off of campus for whatever, Mr. Bordelon would walk away from Mr. Allgood like towards where the back parking lot was, in front of the gym and everything. He would take a couple of steps, he would turn around and he would come back to Mr. Allgood kind of bowing up at him, yelling at him, I was continuing to hear him holler.
Q: Did he use profanities?
A: I really can’t say that I remember.
Q: But you did see?
A: I did see him yelling and bowing up and getting in his face and then he would turn and he would walk away and he’d take a few more steps then he’s come back, it just, he was very aggravated.
Q: Agitated?
A: Very.
Q: Did principal Allgood, was he yelling?
A: No he was not, he was slow, he had the same pass [sic], slowly walking closer and closer to that, half way down that sidewalk in front of the gym like he was trying to get him off-the campus.
Q: Okay and when you say that Mr. Bordelon would come back and bow up into principal Allgood’s face, what do you mean by that?
8 A: I just mean that, you know getting in his face, he was yelling, you could see scolding at him, waiving [sic] his arms in the air, pointing and then turn and walk away and then come back a little bit later and do it all over again.
Q: Then did you see anything after that?
A: After that they had actually stopped about halfway down the sidewalk in front of the gym and there was some type of exchange there, I’m not exactly sure what had happened, I saw...cause [sic] they were directly in my line of sight, I could see Duke’s back and I could see Roch standing right in from of him facing Duke. I saw Duke lean back, so I’ve always, I had my assumption as to what caused him to lean back, but I wasn’t where I could perfectly see what happened, but I saw him lean back, Duke slapped him, Roch ended up hitting him, I missed some of it because I ran to hit the buzzer to get help out there so that they could get somebody to break this up because it had obviously escalated and then by the time I turned back from the buzzer to buzz the office Duke’s on the ground and getting kicked.
Q: By Mr. Bordelon?
A: By Mr. Bordelon.
Q: More than one kick?
A: More than one kick, I did count two, but as far as if anything happened prior to that because one minute he was there, next minute he was on the ground in the fetal position. So what exactly took place while I was headed to the buzzer and coming back, trying to keep my kids in the room.
Q: When you went to punch the buzzer for the intercom and report this and when you came back Mr. Allgood was in the, you said the fetal position?
A: He was in the fetal position trying...
Q: He was curled up on the ground?
A: He was curled up on his side, he was curled up on the sidewalk, he was laying down on the ground and had been kicked.
Q: Did you see Mr. Bordelon kick Mr. Duke after he was in this position?
A: Yes, those were the two kicks that I saw.
9 Q: Twice, there could have been more you just didn’t seek [sic] them?
A: There could have been more I didn’t see it, my back was to it.
Q: So from your vantage point was Mr. Allgood defenseless?
A: He was very defenseless and in fact two of my students left the room to break it up, they didn’t want...they verbally said “Ms. Hukins, someone has to do something, he’s getting beat up”. ....
Q: Did you ever see, after you hit the buzzer, did you ever see any effort by Mr. Allgood to swing or hit or punch or kick Mr. Bordelon?
A: The only thing I saw was the one slap which was after the lean back. Whatever the lean back was, I saw the one slap in the face and then it was haywire from that and he was not the aggressor at all.
Q: Now you say he leaned back, if I were to tell you that we’ve had testimony that Mr. Bordelon spit in principal Allgood’s face would the reaction you saw be consistent with that?
A: I would say so.
Business teacher Judy Decuir’s testimony of the incident corroborated that
of Coach Price and Ms. Hukins, in that she recalled Bordelon hitting Mr. Allgood
and kicking him while he was on the ground.
Lieutenant Gerald Augustine of the Cottonport Police Department was a
student office worker at Marksville High School on the date of the incident. While
Lieutenant Augustine did not witness the altercation, he was present in the office
when Bordelon and Allgood were in Allgood’s office. He witnessed Bordelon in
an agitated state and uttering profanities. Lieutenant Augustine heard Allgood
attempting to calm Bordelon down.
Assistant Principal Cindy Schaub also witnessed the events in Allgood’s
office. Contrary to Bordelon’s characterization of the encounter, and consistent
10 with Lieutenant Augustine’s account, Ms. Schaub testified to Bordelon’s
screaming and cursing in the office after Allgood informed him that he was
suspended. She phoned police after Bordelon stormed out of the office. She did
not witness the fight.
Former Marksville High student, Casey Laborde, witnessed the fight from
the vantage point of teacher Judy Decuir’s classroom:
A: I was in Ms. Judy Decuir’s class that afternoon when I heard yelling and foul language up the hallway and then looked out the window and saw Roch Bordelon and Mr. Allgood outside. Mr. Allgood was pursuing Roch while he was exiting the campus. When they got in the courtyard Roch turned around to coach Allgood and got in his face and was hollering at him and stuff and pushed him.
Q: Now you say that they had exited the building?
A: Yes, sir.
Q: Now how is it that you could see that?
A: Cause [sic] the way the school is made, they go out the doors and then I can see them as they get into the courtyard.
Q: So you had a good line of sight into the courtyard?
Q: And then tell me what you saw at that point and time?
A: They were in the courtyard to go out the back gate when Roch turned around to Allgood, got in his face and then all of a sudden he threw him on the ground and they were fighting.
Q: When you say he got in his face are you saying, when you say he, who got in who’s [sic] face?
A: Roch got in Allgood’s face.
Q: And then what happened after that?
A: Roch was pointing his finger in his face and then he threw him on the ground and then they were fighting.
11 Q: So Roch threw principal Allgood on the ground?
Q: Did you see any blows or any fist being?
Q: And who was striking whom?
A: Roch was kicking Allgood when he was on the ground.
Q: Was he...other witnesses have described that as an in the fetal position, as a nurse do you know what that is?
Q: Was he in the fetal position, when I say he, was principal Allgood in the fetal position?
Q: And Mr. Bordelon was kicking him?
Q: How many times did you see Mr. Bordelon kick principal Allgood while he was in the fetal position on the ground?
A: About two or three.
Q: Was principal Allgood in any position to defend himself ?
A: No, sir.
Allgood’s testimony was very consistent with the descriptions given by the
disinterested witnesses. After meeting with Allgood in his office, Bordelon
stormed out. Allgood followed Bordelon because he was concerned that an
unstable individual was on the premises. As he was exiting the building, Bordelon
was spewing profanities toward Allgood and the school. After the pair exited the
building, Allgood attempted to engage Bordelon to calm him. Bordelon insulted
Allgood, stating that he lacked the manhood to oppose the superintendent over the
12 decision to suspend Bordelon. Allgood then told Bordelon that he was fired.
Bordelon spat in Allgood’s face, and Allgood struck him. The melee ensued.
Bordelon got Allgood on the ground and kicked him.
Under the manifest error rule, and especially when the finder of fact’s
determinations are based upon evaluations of credibility, “reasonable evaluations
of credibility and reasonable inferences of fact should not be disturbed upon
review, even where the appellate court feels that its own evaluations and inferences
are as reasonable.” Blackman v. Brookshire Grocery Co., 07-348, p. 2 (La.App. 3
Cir. 10/3/07), 966 So.2d 1185, 1187 (emphasis added). The testimony of Bordelon
regarding the incident is so at odds with that of every other witness that we
conclude that it was not reasonable for his account to have been given credence.
Bordelon was obviously interested in minimizing his part in this matter; further, by
his own admission, Bordelon was not in a rational frame of mind before, during, or
after the events in question. We find that the jury committed manifest error in
finding Allgood 60% at fault in this incident.
When a court of appeal finds that a jury committed manifest error in the
allocation of fault, it may adjust the allocation “only to the extent of lowering or
raising it to the highest or lowest point respectively which is reasonably within the
trial court’s discretion.” Clement v. Frey, 95-1119, 95-1163, pp. 7-8 (La. 1/16/96),
666 So.2d 607, 611. Allgood was clearly provoked into slapping Bordelon.
Spitting in another’s face is a vile, disgusting, and demeaning battery intended to
demonstrate utter contempt and dominion over that person. And even if Allgood
was not justified in responding as he did, Bordelon’s response grossly exceeded
what the law allows in defending one’s self. The law allows only the degree of
force proportionate to the threat or danger with which one is faced, i.e., that which
13 is reasonable and necessary to prevent a violent offense. See La.R.S. 14:19.
Accordingly, even were we to find that Allgood was not justified in slapping
Bordelon—a finding we deem not necessary to make here—his response was so
disproportionate to that slap that it effectively negated any fault that may otherwise
have been assessed to Allgood. We therefore find that Bordelon should be
assessed with 100% fault in this matter.
Damages
We turn now to Allgood’s contention that the jury erred in awarding him no
damages and erred in awarding Mrs. Allgood no damages for loss of consortium.
The jury found that Bordelon committed a battery upon Allgood. It also found that
the battery caused injury or damage to the plaintiffs. The jury then entered “0” as
the total amount of the award to the Allgoods. The jury did not award Mr. Allgood
the amount of his medical damages, even though the parties had entered a
stipulation to the amount of the damages and to the fact that they were incurred
“for injuries resulting from the battery committed upon him January 26, 2009.”
The jury’s determinations that Allgood was damaged or injured by the battery, but
that he was not entitled to any damages whatsoever—particularly when considered
in light of the stipulation by all parties that Allgood incurred $36,642.04 in medical
expenses as a result of the battery—represents an inconsistency in the verdict that
we are unable to reconcile. Unlike such cases as Dore v. Mitsui Sumitomo Ins.,
USA, Inc., 12-875 (La.App. 3 Cir. 5/22/13), 117 So.3d 231, writ denied, 13-1953
(La. 11/8/13), 125 So.3d 1094, in which the parties reserve the right to contest the
causal relationship between a plaintiff’s injuries and the medical expenses incurred,
14 the parties here stipulated that the medical expenses were incurred as a result of
the injuries Allgood sustained.
A stipulation constitutes a judicial confession. Luquette v. Allstate Ins.
(Indem.) Co., 50,177 (La.App. 2 Cir. 8/12/15), 174 So.3d 736. “A judicial
confession is a declaration made by a party in a judicial proceeding. That
confession constitutes full proof against the party who made it. A judicial
confession is indivisible and it may be revoked only on the ground of error of
fact.” La.Civ.Code art. 1853. Such a stipulation binds the parties and the court,
and “has the effect of withdrawing a fact from issue and disposing wholly with the
need for proof of that fact.” Luquette, 174 so.3d at 746. The amount of medical
specials and their causal relationship to the battery committed by Bordelon was
withdrawn as an issue in the case by virtue of the stipulation. The jury erred as a
matter of law in failing to award Allgood the amount of medical expenses the
parties stipulated were incurred as a result of the battery. We, therefore, reverse
the trial court’s judgment and award Allgood past medical specials in the amount
of $36,624.04, subject to a credit in favor of the Avoyelles Parish School Board for
$33,811.04 it has already paid, as per the stipulation.
Allgood maintains the jury erred as a matter of law in failing to award him
general damages. In Wainwright v. Fontenot, 99-582 (La.App. 3 Cir. 12/8/99), 750
So.2d 1077, a panel of this court held that a jury erred as a matter of law in failing
to award general damages to a plaintiff to whom it awarded medical special
damages. In that matter, however, the minor child on whose behalf the suit was
brought had witnessed his father being burned while extinguishing a grease fire.
The child began to demonstrate signs of stress and was taken to a counselor. He
was prescribed Prozac, but his prescription was improperly filled. Administration
15 of the improper dosage resulted in the child being hospitalized for observation. At
trial, the jury awarded $1,500.00 in medical expenses and nothing for general
damages. This court increased the medical expense award to $7,372.00 and
$40,000.00 in general damages.
The defendants sought writs from the Louisiana Supreme Court, which
granted them. Wainwright v. Fontenot, 00-492 (La. 4/20/00), 759 So.2d 769. The
supreme court reversed, noting that there does not exist a bright-line rule that
awarding special damages and not general damages is legal error; rather, such
awards are most often merely inconsistent awards, which represent abuses of
discretion. Wainwright v. Fontenot, 00-492, (La. 10/17/00), 774 So. 2d 70. The
supreme court then enunciated the appropriate test reviewing courts must apply:
It may often be the case that such a verdict may not withstand review under the abuse of discretion standard. However, it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous. Rather, a reviewing court faced with a verdict such as the one before us must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.
Id. at 76.
We find that there was a clear abuse of the jury’s vast discretion in failing to
award Allgood any general damages. The parties stipulated that as a result of the
battery he received at Bordelon’s hands (and feet), Allgood incurred considerable
medical expenses, including two separate courses of physical therapy and wearing
an upper-teeth splint at night and a lower-teeth splint during the day for three years.
He experienced clicking and popping in his left temporomandibular joint (TMJ).
He also experienced exacerbation of a pre-existing herniated L5-S1 lumbar disc.
16 Allgood also experienced aggravation of his neck, which had undergone surgery
with fusion at several levels before this incident. This was borne out not only by
the terms of the stipulation, but by the medical testimony as well.
In Stelly v. Zurich American Insurance Company, 11-1144 (La.App. 3 Cir.
2/1/12), 83 So.3d 1225, a panel of this court determined that an award of general
damages of $20,000.00 to a plaintiff who experienced twenty-eight months of
treatment for cervical injuries and TMJ dysfunction was abusively low and
increased the award to the lowest amount within the trial court’s discretion,
$43,000.00. We, too, find that Allgood is entitled to $43,000.00 in general
damages.
Allgood maintains that the jury also erred in failing to award future medical
expenses despite unchallenged testimony by his treating doctors. Allgood’s family
physician, Dr. Kenneth T. Johnson of Pineville, Louisiana, had treated Allgood
since 1986. He principally treated Allgood for hypertension, hypothyroidism,
obstructive sleep apnea, and high cholesterol. After the incident, Dr. Johnson
noted that Allgood began suffering from kidney problems that he related to the
over-the-counter Ibuprofen Allgood had been taking. He related this to Allgood’s
musculoskeletal problems resulting from the battery. However, Dr. Johnson did
not attribute any future medical treatment Allgood would require as a result of this
kidney dysfunction. Dr. Johnson also stated that Allgood’s blood pressure
medicine would have to be adjusted periodically as a result of the increase in his
blood pressure Allgood’s physical pain would cause. However, Dr. Johnson was
already treating this condition, and no attempt was made by him to quantify to any
degree this pain would result in treatment Allgood was already receiving. The jury
17 was reasonable in concluding that no additional medical expenses resulted
regarding either the kidney dysfunction or the high blood pressure.
Dr. James A. Pearce, a Lafayette dentist who limits his practice to the
treatment of TMJ problems, also treated Allgood. He treated Allgood with a splint
appliance Allgood wears over his teeth. He has not discharged Allgood, but does
not see him except on an as-needed basis. At the time of his testimony, Dr. Pearce
was not scheduled to see Allgood at any time in the future. Office visits with Dr.
Pearce range between $70.00 and $100.00. Dr. Pearce made no attempt to quantify
the frequency with which Allgood may have to return.
Dr. David A. Cavanaugh, a Shreveport neurosurgeon, had treated Allgood
for two cervical disc herniations in 1998. He saw Allgood after this incident with
complaints of lumbar pain. He opined that Allgood sustained aggravation of pre-
existing lumbar degenerative disc disease. He treated Allgood conservatively, and
ultimately referred him to Dr. Sean Stehr, an Alexandria physiatrist and pain
medicine physician. Dr. Cavanaugh rendered no opinion regarding future
treatment from him.
Dr. Stehr has treated Allgood since June 2013. He has prescribed Allgood
Amitriptyline, an anti-depressant also used to treat neurogenic pain. Amitriptyline
costs approximately $30.00 per month. Dr. Stehr also performed a lumbar epidural
steroid injection that brought Allgood some relief. Allgood may need additional
injections every eight months or so, at a cost of $2,500.00 to $3,000.00.
Awards of future medical expenses are highly speculative and are rarely
susceptible of calculation with any mathematical certainty. Menard v. Lafayette
Ins. Co., 09-1869 (La. 3/16/10), 31 So.3d 996. When a victim establishes that he
incurred past medical specials and that he will more probably than not incur future
18 medical specials, he is usually entitled to those future medical specials. Id. A
plaintiff demonstrates the amount of medical specials through supporting medical
testimony and estimations of their cost. Id. We award Allgood $33,000.00 in
future medical expenses.
Patricia Allgood maintains that the jury erred as a matter of law in failing to
award her damages for loss of consortium. The conclusion that a spouse has
sustained a loss of consortium as a result of her spouse’s injuries is a factual
determination reviewed under the manifest error standard. Bellard v. S. Cent. Bell
Tel. Co., 96-1426 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, writ denied, 97-2415
(La. 12/12/97), 704 So.2d 1202. The amount of such an award is reviewed under
the abuse-of-discretion standard. Mathews v. Dousay, 96-858 (La.App. 3 Cir.
1/15/97), 689 So.2d 503. Here, the jury was not specifically asked on the verdict
form to determine whether Patricia Allgood sustained any damage; instead, the
verdict form asked, “Did the battery cause injury or damage to the plaintiffs?” The
jury responded in the affirmative. Implicit in this finding is the determination that
Patricia Allgood sustained some degree of loss. Accordingly, we will review the
award of nothing under the abuse-of-discretion standard.
Mrs. Allgood described how her marriage had grown quite strong since she
was diagnosed with cancer in her forties, and her husband was steadfast in his
support of her during her treatment. Since the incident, she testified, her marital
intimacy had declined significantly. Her husband had not been as supportive as
otherwise might have been the case through a few family difficulties, due to his
pain. He has been less diligent in maintaining the home than he was before the
incident. The chemotherapy she received left Mrs. Allgood with permanent joint
19 damage, which causes her greater difficulty in performing household chores that
her husband formerly performed.
In light of this, we conclude that the jury did abuse its discretion in failing to
award Mrs. Allgood damages for loss of consortium. We therefore award her the
lowest amount which would have been within its discretion, $10,000.00.
Vicarious liability
Lastly, we address Allgood’s contention that the Avoyelles Parish School
Board should be held liable as Bordelon’s employer under La.Civ.Code art. 2320.
Article 2320 has generally been construed to require that vicarious liability is
imposed upon an employer only for those acts that are committed by the employee
in the course and scope of his employment. LeBrane v. Lewis, 292 So.2d 216
(La.1974). In LeBrane, a hotel employee arrived for work late. His supervisor
told him to take the rest of the day off and to get a haircut. The employee
remained on the hotel premises after this admonition, and the supervisor fired him.
While escorting the terminated employee from the premises, the supervisor got
into a heated argument with the former employee and eventually stabbed him. The
Louisiana Supreme Court viewed the fight as primarily employment-related,
because it was “reasonably incidental to the performance of the supervisor’s duties
in connection with firing the recalcitrant employee and causing him to leave the
place of employment.” Id. at 218.
The same can readily be said of Bordelon’s situation. He and his supervisor,
who was attempting to procure him help after he engaged in a spectacle of mental
instability while on school grounds, during school hours, became embroiled in a
fistic encounter primarily related to Bordelon’s suspension. We quite readily
20 conclude that this dispute was employment-related, and find the Avoyelles Parish
School Board vicariously liable for the Allgoods’ injuries.
Costs of court
“Unless the judgment provides otherwise, costs shall be paid by the party
cast, and may be taxed by a rule to show cause.” La.Code Civ.P. art. 1920. This
article vests the trial court with discretion in awarding costs equitably. Davis v.
State ex rel. Dep’t of Transp. & Dev., 11-625 (La.App. 3 Cir. 11/2/11), 78 So.3d
190, writ denied, 11-2681 (La. 2/10/12), 80 So.3d 488. The trial court assessed all
costs to plaintiffs. That judgment was predicated upon the verdict of the jury,
which we have already concluded and demonstrated was eminently flawed.
Accordingly, assessing costs against the plaintiffs in this matter likewise
constitutes an abuse of discretion. All costs are to be borne by the
defendants/appellees, including expert witness fees.
JNOV
Our decision herein renders the plaintiffs/appellants’ assignment of error
regarding the trial court’s refusal to grant them a JNOV or new trial moot.
CONCLUSION AND DECREE
The jury manifestly erred in its allocation of fault. Assuming that Allgood
was not justified in striking Bordelon after Bordelon spat in his face, Bordelon’s
response was grossly disproportionate to any provocation Allgood may have
provided. We find Bordelon should have been assessed 100% fault in the matter.
The jury abused its discretion in failing to award Allgood general and special
damages. It also abused its discretion in failing to award Patricia Allgood damages
for loss of consortium. Therefore, we reverse the trial court and award damages to
21 plaintiffs/appellants, Stephan Michael “Duke” Allgood and Patricia Allgood, as
follows:
Past medical special damages of $36,624.04, subject to a credit in favor of
defendant/appellee, Avoyelles Parish School Board, of $33,811.04; general
damages to Stephen Michael “Duke” Allgood of $43,000.00; future medical
special damages of $33,000.00; loss of consortium damages in favor of Patricia
Allgood of $10,000.00. We reverse the trial court’s determination that
defendant/appellee Roch Bordelon was not acting within the course and scope of
his employment. The dispute occurred within the bounds of the school during
school hours and was primarily related to the superintendent’s decision to place
Bordelon on administrative suspension. Finally, we reverse the trial court’s
assessment of all trial court costs to plaintiffs/ appellants. All costs of this appeal
and all costs in the trial court are taxed to defendants/appellees, Roch Bordelon and
the Avoyelles Parish School Board.