MADELEINE M. LANDRIEU, Judge.
Defendants, Cheema Properties, LLC, and M & S Oil Services, LLC,
On November 24, 2009, Ms. Cline filed suit alleging that on November 9, 2009, she tripped on an uneven portion of the cement at the Belle Chasse Shell, causing her to fall and strike her head on an ice machine. Ms. Cline further alleged that as a result of this fall, she received fourteen stitches in her head, fractured two cervical vertebrae which required surgical repair, and suffered various other injuries which impaired her lifestyle. She also alleged that this accident was solely and completely the fault of the defendants because they allowed an unreasonably harmful, defective condition to exist on the premises of their business despite having actual or constructive notice of the defect.
The matter was tried in a bench trial on February 24 and 25, 2011. On April 14, 2011, the trial court rendered judgment in favor of Ms. Cline against the two remaining defendants, awarding a total of $386,385.79 in damages ($280,500.00 for past and future pain and suffering, mental anguish and loss of enjoyment of life, $67,635.79 for past medical expenses, and $38,250.00 for future medical expenses), plus court costs and judicial interest.
In extensive written Reasons for Judgment, the trial court stated that the plaintiff had met her burden of proving the defendants' liability pursuant to La. R.S. 9:2800.6 A, which provides the criteria for determining when a merchant is liable to a business patron for injuries incurred as a result of a defective or unsafe condition existing on the merchant's premises.
On appeal, the defendants contend that the trial court erred by:
We review the factual findings of the trial court pursuant to the manifest error standard, as set forth by Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Accordingly, we may not set aside the trial court's findings unless, in view of the entire record, they are manifestly erroneous or clearly wrong. Moreover, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact may not be set aside upon review. Id.
Applying the manifest error standard to an award of special damages, such as medical expenses, requires the appellate court to employ a two-step analysis based upon the entire record. First, we must conclude that there is no reasonable factual basis for the trial court's award, and second, we must conclude that the award is clearly wrong. Kaiser v. Hardin, 2006-2092, pp. 11-12 (La.4/11/07), 953 So.2d 802, 810.
General damage awards, which are inherently speculative in nature and cannot be fixed with legal certainty, are reviewed according to an abuse of discretion standard. Bouquet v. Wal-Mart Stores, Inc., 2008-0309, p. 4 (La.4/4/08), 979 So.2d 456, 459. Pursuant to this standard, the trier of fact is afforded vast discretion because it is in the best position to evaluate the credibility of witnesses and view the evidence firsthand. Id. at pp. 4-5. Thus, the appellate court should rarely disturb such an award, doing so only when an articulated analysis of the particular facts and circumstances of the case reveals an abuse of discretion. Id., p. 5.
Defendants first contend the trial court committed manifest error by finding that the uneven portion of concrete at the Belle Chasse Shell presented an unreasonable risk of harm. La. R.S. 9:2800.6 provides, in pertinent part:
It is evident from its Reasons for Judgment that the trial court performed a risk-utility balancing test before reaching its conclusion. In those Reasons, the court discussed Reed v. Wal-Mart and also specifically recognized that the decision places a duty upon the trier of fact to balance the risk of harm presented by the defect against its social utility and the cost and feasibility of repair. In so balancing, the trial court considered the deposition testimony of Dr. George Hammitt, the plaintiff's expert in civil engineering, concrete and accident reconstruction, as well as that of James Danner, the defendant's expert in the same subjects. Dr. Hammitt testified that the spot where Ms. Cline had tripped was in a natural path of ingress and egress to the service station's convenience store. Based upon photographs of the site, he estimated that the difference in elevation was at least two inches, and stated that any abrupt change in elevation greater than one-half inch would violate several building/safety codes adopted in Louisiana, including the Americans with Disabilities Act and the Life Safety Code. Dr. Hammitt opined that the defect would cost about $300.00 to repair by overlaying the concrete in the specific area, which he estimated to be about fourteen feet by two feet. He opined that the defect presented an unreasonable risk of harm.
Mr. Danner, who had taken his own measurements at the site of the accident, testified that the greatest elevation differential he had found was 1 ¼ inches. He opined that this differential was due to soil subsidence common in southeastern Louisiana. Although he did not give a precise estimate of the cost of repairing the defect, he opined that the cost would be higher than Dr. Hammitt's estimate. Unlike Dr. Hammitt, Mr. Danner did not believe that a concrete overlay would permanently fix the problem; instead, he opined that the old concrete would have to be removed and replaced, which would require the area to be cordoned off for about seven days.
Ultimately, the two experts disagreed as to whether the uneven concrete constituted an unreasonable risk of harm. As reflected in the Reasons for Judgment, the trial judge considered all the above-referenced factors, employed the appropriate balancing test, and concluded the evidence supported a finding that the defect did present an unreasonable risk of harm.
Nevertheless, defendants specifically argue that the trial court committed manifest error by relying upon the testimony of Dr. Hammitt with regard to building and safety codes. They contend that these
We first note that, despite defendants' suggestion to the contrary, Dr. Hammitt did not testify that any abrupt elevation change greater than one-half inch would present an unreasonable risk of harm; he testified that this particular concrete differential, which measured at least one and one quarter inches according to all the evidence, constituted an unreasonable risk of harm. Moreover, Dr. Hammitt admitted that he did not know when the service station had been built or whether it had complied with the building codes in effect at that time, but indicated that he was merely using the codes as guidelines to help him determine whether the uneven concrete at the Belle Chasse Shell constituted an unreasonable risk of harm. The trial judge heard this testimony and had the responsibility to give it the weight he believed it deserved. Moreover, we note that the trial judge did not rely solely on Dr. Hammitt's testimony in making his determination. He also viewed photographs of the site placed in evidence and considered the other evidence presented. We therefore do not find that the trial court erred by relying to some degree upon Dr. Hammitt's testimony. Pursuant to the manifest error standard of review, where there are two permissible views of the evidence, such as were presented by the two experts herein, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. See Rosell v. ESCO, supra, at 844.
Finally, the defendants suggest that the trial court's finding that the elevation differential in the parking lot created an unreasonable risk of harm is not in accordance with Louisiana jurisprudence. In support of this contention, the defendants cite four cases that they suggest are factually similar to the instant case. In two of those cases, the Louisiana Supreme Court reversed the trial and appellate court's conclusions that the defective pavement in question presented an unreasonable risk of harm. See Reed v. Wal-Mart, supra, wherein the Supreme Court held that ¼ to ½ inch variations in elevation along an expansion joint in a highly trafficked area of the Wal-Mart parking lot did not create an unreasonable risk of harm; and Boyle v. Board of Supervisors, 96-1158 (La.1/14/97), 685 So.2d 1080, wherein the Supreme Court held that a ½ to 1 inch depression in a sidewalk on a university campus did not create an unreasonable risk of harm. We note that both of these cases involved elevation differentials that were smaller than the one present in the instant case. The defendants cite two other cases, Shipp v. City of Alexandria, 395 So.2d 727 (La.1981), and White v. City of Alexandria, 216 La. 308, 43 So.2d 618 (1949), both of which involved a greater elevation difference (1 ½ to 2 inches), which the Supreme Court ruled was not unreasonably dangerous. These two cases are distinguishable from the instant case, however, because they both involved a defect in a public sidewalk rather than in a business's private parking lot. Because a municipality is responsible for the maintenance of a large network of sidewalks and streets, the factors that must be considered in the balancing equation are inherently different than in a case against a
To controvert the defendants' argument that the trial court's finding herein does not comport with the jurisprudence, plaintiffs cite the Louisiana Supreme Court's decision in Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106 (La.1990), in which the Court upheld the trial court's finding that a 1 inch difference in elevation at the entrance of a restaurant was an unreasonably dangerous condition that caused a patron of the restaurant to fall. In view of all the jurisprudence, we cannot accept the defendants' argument that the trial court's finding in the instant case does not comport with the prevailing case law.
Accordingly, after reviewing the record we do not find that the trial court committed manifest error in determining that the uneven concrete that caused Ms. Cline's fall presented an unreasonable risk of harm.
Defendants next argue that the trial court committed manifest error by failing to allocate a sufficient degree of fault to the plaintiff. Louisiana Civil Code article 2323 provides, in pertinent part:
In the instant case the trial court found Ms. Cline to be 15% at fault, attributable either to inattention or to her preexisting medical condition. Defendants argue that this assessment of fault is too low, considering that Ms. Cline admitted that, just prior to her fall, she was looking at the door of the service station rather than at the pavement.
Regarding this issue, this Court has stated:
Williams v. Orleans Parish School Board, 541 So.2d 228, 230 (La.App. 4th Cir.1989) (Citations omitted). However, we have also held that "[a] pedestrian is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle." Johnson v. New Orleans Dept. of Streets, 94-1542, p. 2 (La.App. 4 Cir. 2/23/95), 650 So.2d 1216, 1218 (quoting White v. City of Alexandria, 43 So.2d at 620).
In the instant case, we cannot say that the percentage of fault the trial court attributed to Ms. Cline is unreasonable based on the record. An ordinary person exercising reasonable care does not walk with his or her head down constantly, but generally looks ahead. Ms. Cline testified that she was looking at the door she was heading toward, not at the ground. The plaintiff does not dispute the trial court's finding that she was 15% at fault for failing to notice the uneven concrete slab. Under the circumstances, we conclude that there is a reasonable basis in the record for this assessment of fault, and that the trial court was not manifestly erroneous for failing to allocate a greater percentage of fault to the plaintiff.
The defendants contend that the trial court committed manifest error by awarding an excessive amount of future medical expenses without sufficient evidentiary support. The trial court found that Ms. Cline was entitled to $45,000.00 for future medical expenses. In its Reasons for Judgment, the court noted that the plaintiff's treating physician, Dr. Sulaiman, and the defendants' medical expert, Dr. Applebaum, concluded that although the surgery performed on Ms. Cline had been successful in eliminating the possibility that a bone fragment could migrate and injure the spinal cord, the second goal of the surgery, which was to cause the fractured segments to fuse, had not been achieved. Both physicians also agreed that, although the lack of such fusion did not mandate future surgery for Ms. Cline, a second surgery would be one of her treatment options. Finally, Dr. Sulaiman testified that Ms. Cline would continue to have neck pain for the rest of her life, which would require periodic treatment including physical therapy, spinal injections, medication and possibly further surgery.
Defendants argue that, except for approximately $2600.00 to cover the remaining physical therapy treatments Dr. Sulaiman had prescribed at the time of trial, the plaintiff failed to introduce evidence to support her need for future medical expenses.
As this Court has repeatedly held, the proper standard to determine whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that the future medical expenses will be medically necessary. Moody v. Cummings, 2009-1233, p. 15 (La. App. 4 Cir. 4/14/10), 37 So.3d 1054, 1064 (citing Hoskin v. Plaquemines Parish
Id., pp. 2-3, 708 So.2d at 1221-22 (citations omitted). Furthermore, in Dunomes v. Plaquemines Parish Government, 2009-0570 (La.App. 4 Cir. 10/21/09), 24 So.3d 242, we stated that "when the need for future medical care is established, but the cost is not, the factfinder may make a reasonable award." Id., p. 3, 24 So.3d at 245 (quoting Lacy v. ABC Ins. Co., 97-1182, p. 13 (La.App. 4 Cir. 4/1/98), 712 So.2d 189, 196).
Applying this standard, we find the record demonstrates the existence of a reasonable factual basis for the trial court's award of $45,000.00 in future medical expenses. The trial court heard Ms. Cline testify that she had constant neck pain. She also testified that her pain medication cost her approximately $42.00 per month. Dr. Sulaiman confirmed that Ms. Cline would probably have pain for the rest of her life and therefore would require further medical treatment including injections, pain medication, physical therapy and possibly surgery. This testimony by Dr. Sulaiman was uncontroverted. Indeed, Dr. Applebaum agreed that Ms. Cline may require surgery in the future. A reasonable inference from the medical testimony is that the conservative treatments Ms. Cline was receiving at the time of trial may well prove insufficient to address her symptoms in the future, at which point she could opt for surgery. Moreover, although the record does not contain the exact costs of future treatments, it does contain the current costs of Ms. Cline's physical therapy sessions and medications, as well as the cost of her initial surgery. We do not find it unreasonable for the trial court to have used these amounts as guidelines in determining that $45,000.00 was the appropriate award for future medical treatment. We find a reasonable factual basis in the record for that award.
Defendants argue that the trial court's award of $330,000.00 in general damages is excessive. As stated previously, general damage awards are inherently speculative; therefore, the trial court is afforded much discretion, and the appellate court may not disturb the trial court's award unless an articulated analysis of the facts and circumstances of the case reveals an abuse of that discretion. Bouquet v. Wal-Mart Stores, Inc., supra, pp. 4-5 (La.4/4/08), 979 So.2d at 459.
In the instant case, the factual evidence does not indicate an abuse of discretion. Ms. Cline initially was transported by ambulance to the nearest hospital emergency room, where she received fourteen stitches in her head before being transferred to another hospital for surgery. Ms. Cline testified she was in severe pain from her broken neck, but was not allowed any pain medication for three days. She underwent neurosurgery which required the insertion of a permanent screw to stabilize her cervical fracture. Ms. Cline spent approximately about a week in the hospital, including
Considering these facts, we do not find that the trial court abused its discretion by awarding Ms. Cline $330,000.00 in general damages for pain, suffering, and loss of enjoyment of life. We therefore decline to disturb that award.
For the reasons stated, we affirm the judgment of the trial court.
We note that, despite the trial court's indication to the contrary in its Reasons for Judgment, any weakened medical condition that might predispose a plaintiff to falling is not relevant to the determination of comparative fault pursuant to La. C.C. art. 2323. In Wheat v. State Farm Fire and Casualty Co., 583 So.2d 1 (La.App. 1st Cir.1991), the court explained: "Furthermore, within the meaning of LSA-C.C. art. 2323, a medical condition is neither contributory negligence nor fault which will reduce the award to the plaintiff. See Acosta v. Pendleton Memorial Methodist Hospital, 545 So.2d 1053 (La.App. 4th Cir.), writs denied, 551 So.2d 637 and 551 So.2d 638 (La.1989). The reason is that medical causation, such as the plaintiff's predisposition to accident, does not qualify as `conduct' on the part of the plaintiff which can be considered under the principle of comparative causation." Id. at p. 4.
