HIGGINBOTHAM, J.
Defendants appeal a judgment rendered in favor of the plaintiffs after an eight-day jury trial in which the jury found a general contractor liable to its statutory employee for an "intentional act." The jury also found the engineering companies responsible for guy wiring and bridge design liable under a negligence theory. For the reasons assigned, we reverse the jury verdict in part, amend in part, affirm in part as amended, and render judgment.
This is a wrongful death case arising out of the collapse of a steel reinforcing bar (rebar) cage built during a 2009 bridge-widening project on the Huey P. Long Bridge near the Westbank of the Mississippi River in Bridge City, Louisiana. Two men who were working on the rebar cage, Ulvaldo Soto Martinez and Martin Reyes, died as a result of the collapse.
The Louisiana Department of Transportation and Development (DOTD) contracted with the design engineering firm of Modjeski & Masters, Inc. (M & M) to design the bridge-widening project. DOTD contracted with a joint venture of Kiewit Louisiana Co., Massman Construction Co., and Traylor Bros., Inc., (KMTC-JV), a new company that was jointly formed for purposes of the project, to serve as the general contractor on the project. Kiewit Engineering Co. (KECO) was hired by KMTC-JV to design guy-wiring plans to be used by KMTC-JV in connection with the placement of the steel rebar cages. The purpose of the guy wiring plan was to protect the rebar cage
On June 12, 2009, KMTC-JV employees used two cranes to raise the pre-constructed 62,888-pound rebar cage that had been built by J.L. Steel employees in a horizontal position on the ground. One crane lifted the top portion of the 55 to 60-foot tall cage while the other was used, temporarily, to hold the bottom of the cage steady. KMTC-JV's crane operator, Jeff Mayon, operated the lift and placed the rebar cage on top of the column footing. J.L. Steel's workers, Martinez and Reyes, then tied the rebar extending from the column footing on which they were standing to the rebar cage that had just been set in place. KMTC-JV employees tied guy wires from various levels of the rebar cage to 9,600-pound concrete deadman blocks on the ground. After the tie-in was complete, Martinez and Reyes were instructed to unhook the crane from the top of the rebar cage, Within thirty minutes of the removal of the crane, the rebar cage collapsed and the two workers fell approximately 60 feet to their deaths.
On September 2, 2009, suit was filed by Martinez's wife, Maria Cruz Maldonado, individually, as representative of the decedent's estate, and on behalf of their two minor children, Justin and Usvaldo Maldonado, and by the decedent's brother, Gilberto Soto Martinez (hereafter referred to as plaintiffs). Made defendants were KMTC-JV, KECO, their insurer Zurich American Insurance Company (Zurich), M & M and others.
After trial, the jury rendered a verdict against KMTC-JV for intentional acts. It also concluded that KECO and M & M were negligent in causing the accident. The jury allocated fault as follows: 80% to KMTC-JV, 10% to KECO, and 10% to M & M. The jury awarded a total of $13 million to plaintiffs. The trial court entered a judgment in accordance with the jury verdict on June 1, 2012. KMTC-JV, KECO, Zurich
Defendants KMTC-JV and KECO aver that the trial court legally erred in admitting
Defendant M & M avers that the trial court committed legal error in allowing plaintiffs' expert to give opinion testimony on the interpretation of M & M's contract with DOTD; prohibiting M & M from meaningful cross-examination of plaintiffs' expert on voir dire regarding the local standard of care applicable to M & M's performance; and refusing to allow M & M's expert to testify as a professional engineer because, in retired status, he did not maintain his license. M & M further avers that the jury erred in finding M & M at fault and in awarding Martinez's brother mental anguish damages without evidence to support the claim and in awarding him excessive damages. M & M also contends that the jury erred in awarding excessive damages to Martinez's surviving wife and two minor sons and in awarding excessive general damages for suffering by Martinez before his death.
The resolution of legal issues may involve questions of fact and questions of law. Wingfield v. State, ex rel. Dept. of Transp. and Development, 2001-2668, 2001-2669 (La.App. 1st Cir.11/8/02), 835 So.2d 785, 799, writs denied, 2003-0313, 2003-0339, 2003-0349 (La.5/30/03), 845 So.2d 1059-1060, cert. denied, 540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282 (2003). Factual determinations are the sole province of the trier of fact, whether judge or jury. Id. To preserve the right to a fair trial, the function of the entity that views the witnesses and hears testimony firsthand must be safeguarded. Id. When the process of credibility determinations and fact-finding operates correctly, the factual findings are reviewed by this court using the manifest error or clearly wrong standard Id.; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-83 (La.1993).
When the jury makes a factual finding based on admissible evidence, even though a different finding would have been reached by this court, that finding will not be reversed unless it is clearly wrong. Wingfield, 835 So.2d at 799. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, if a trial judge commits consequential error by denying the jury relevant, admissible evidence, or by admitting evidence that should have been excluded, the fact finding process is interdicted; thus, the verdict is tainted. See McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986).
A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735. If the admission or exclusion of evidence tainted a jury verdict, this court steps into the shoes of the factfinder and conducts a de novo review of all of the admissible evidence. See Wingfield, 835 So.2d at 799. De novo review should be limited to consequential errors, that is,
One of the central questions presented in this case is whether the conduct of the general contractor/statutory employer, KMTC-JV, rises to the level of an intentional act, thus providing an exception to the rule that the Louisiana Workers' Compensation Act (Act) is the employee's exclusive remedy for a work-related injury or death caused by his employer or a co-worker. Louisiana Revised Statute 23:1032(B) provides for the intentional act exception, as follows;
Our courts frequently cite the legislative history of this Act, amended in 1976, to illuminate the fact that the legislature intended to keep the exception narrow. As stated by various commentators, "[t]he only reasonable conclusion to be drawn from the legislative process is that both houses of the legislature rejected attempts to make the exception any broader than `intentional' acts of the employer, thereby giving the exception a narrow scope, limited to conduct which is truly intentional." Malone & Johnson, Louisiana Civil Law Treatise, Volume 14, Workers' Compensation Law & Practice, § 365, p. 206 (3rd edition 1994). Another commentator notes that where the conduct goes beyond aggravated negligence and includes an employer who knowingly permits a hazardous work condition to exist or knowingly orders a claimant to perform an extremely dangerous job or willfully fails to furnish a safe place to work, this still falls short of the kind of intention to injure that rises to the level of intentional act. Larson, 2A Workmens' Compensation Law, § 68.13 (1989). See Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208, 210.
In Bazley v. Tortorich, 397 So.2d 475, 480 (La.1981), the Louisiana Supreme Court concluded that the words "intentional act" mean the same as "intentional tort" in reference to civil liability. "Intent" is found when the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Id. at 481.
Since the intentional act exception to the Act was passed in 1976, many cases have interpreted the language. The jurisprudence reveals a solid respect for the legislature's policy decision and has narrowly interpreted the exception. Williams v. Gervais F. Favrot Co., Inc., 573 So.2d 533, 540 (La.App. 4th Cir.), writ denied, 576 So.2d 49 (La.1991). In Williams, two workers were killed when a rebar cage fell from the twenty-second floor of a building under construction. One worker was inside the cage as it was lifted. The other worker stood on the form to guide the cage in. Part of the crane contacted the form and the worker on the form tried to push it off. The concrete form had not been braced and the form with the cage fell off of the building, killing both workers. Testimony of the foreman showed that he had intended to brace the form, but that had not been done. OSHA standards were violated by having a worker in the cage during the lift. Nevertheless, the Fourth Circuit held that the employer did
In Reeves, 731 So.2d at 208-209, the supreme court again addressed the question of whether the substantial certainty requirement of the intentional act exception to the exclusivity provision of the Act was met. There, the employer directed an employee to manually move a sandblasting pot.
Reeves, 731 So.2d at 212-213.
The Reeves court further noted that other workers had manually moved the pot on several occasions, and no one had been injured before. Id. at 213. The supervisor testified that he believed that the employee could move the pot without incident. Id. The court determined that the jury's conclusion that the employer's conduct constituted an intentional act was nor reasonable in light of the record reviewed in its entirety. Id.
The Reeves decision noted that substantially certain to follow requires more than a reasonable probability that an injury will occur and certain is defined as inevitable or incapable of failing. Id. See also Danos v. Boh Bros. Const. Co., LLC, 2013-2605 (La.2/7/14), 132 So.3d 958, 959-60. The supreme court cited numerous cases in Reeves in which the employer's conduct was held insufficient to meet the substantial certainty test, to wit: (1) an employer's knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured from such use is not sufficient to meet the requirement, Holliday v. B.E. & K. Const. Co., 563 So.2d 1333, 1334 (La.App. 3d Cir. 1990); (2) knowledge and appreciation of risk does not constitute intent; reckless or wanton conduct by an employer does not constitute intentional wrongdoing, Jasmin v. HNV Cent. Riverfront Corp., 642 So.2d 311 (La.App. 4th Cir.1994); (3) gross negligence is not an adequate basis to find that the employer knew, to a substantial certainty, that its conduct would cause injury or death, Gallant v. Transcontinental Drilling Co., 471 So.2d 858, 861 (La.App. 2d Cir.1985); (4) failing to provide adequate safety equipment is not an adequate basis for finding that the employer knew, to a substantial certainty, that its conduct would cause injury or death, Jacobsen v. Southeast Distributors, Inc., 413 So.2d 995,
In Reeves, 731 So.2d at 212, the supreme court further noted a few cases where an intentional tort was found: (1) an employer's conduct was held to rise to the level of intentional act when the employer repeatedly exposed the employee to a chemical where the employee had become ill on two prior occasions after exposure to it, Trahan v. Trans-Louisiana Gas Co., Inc., 618 So.2d 30, 31-32 (La.App. 3d Cir.1993); and (2) when an employer ordered an employee to work in a ditch that had caved in the previous day and the ditch had not been reinforced and looked like it would cave in again, the employer was held to have intended the harm when the employee was injured, Wainwright v. Moreno's, Inc., 602 So.2d 734, 739 (La.App. 3d Cir. 1992).
Before we analyze the statutory employer's conduct in this case, we must first examine some evidentiary rulings of the trial court and the pertinent law.
Louisiana Code of Evidence article 407 provides:
In Givens v. De Soto Bldg. Co., 156 La. 377, 380, 100 So. 534, 535 (1924), the Louisiana Supreme Court enunciated the policy of excluding evidence of subsequent remedial measures. The court noted that:
In Toups v. Sears, Roebuck and Co., Inc., 507 So.2d 809, 816 (La.1987), the Louisiana Supreme Court stated:
In Northern Assur. Co. v. Louisiana Power & Light Co., 580 So.2d 351, 357
Initially, plaintiffs aver that KMTC-JV and KECO waived their right to appeal prejudicial legal error by failing to object at trial when the evidence was offered. Defendants KMTC-JV and KECO filed motions in limine on several evidentiary issues prior to trial. Thus, we must address whether filing motions in limine in this case preserved these defendants' claims of error for appeal.
The trial court has great discretion in its consideration of evidentiary matters such as motions in limine. Heller v. Nobel Ins., Group, 2000-0261 (La.2/2/00), 753 So.2d 841, 841. Louisiana Code of Civil Procedure article 1635 provides:
Louisiana Code of Evidence article 103 provides, in pertinent part:
In Whitehead v. Kansas City Southern Ry. Co., 99-896 (La.App. 3d Cir.12/22/99), 758 So.2d 211, 218, writ denied, 2000-0209 (La.4/7/00), 759 So.2d 767, the court stated:
In Joseph v. Williams, 2012-0675 (La. App. 4th Cir 11/14/12), 105 So.3d 207, 216, plaintiff filed a motion in limine regarding the admission of evidence, which was denied. Plaintiff took writs to the Fourth Circuit and to the Louisiana Supreme Court. Both writ applications were denied. On appeal plaintiff re-urged that the trial court's interlocutory ruling denying her motion in limine was erroneous. Defendant
Id. at 216 n. 10.
In Lafleur v. John Deere Co., 491 So.2d 624, 632 (La.1986), the Louisiana Supreme Court noted that the court of appeal erred when it declined to review the issue of whether evidence should have been excluded on the grounds that defendants failed to object timely to presenting the evidence at trial. The supreme court stated:
Id. at 632.
In the instant case, defendants KMTC-JV and KECO filed motions in limine in which they objected to and fully briefed the issues of the admissibility of subsequent remedial measures, prior accidents, and evidence protected by the attorney-client and work product privileges.
During trial, the court declined to rule on the motion in limine on subsequent remedial measures. Instead, the court allowed the jury to determine whether an action was a subsequent remedial measured.
In Reichert v. State, Dept. of Transp. and Development, 96-1419, 96-1460 (La.5/20/97), 694 So.2d 193, 200, the Louisiana Supreme Court found that the court of appeal properly held that four particular exhibits were improperly admitted into evidence. Thus, the appellate court was required to conduct a de novo review of the record, giving no weight to the verdict and deciding the case by a preponderance of the evidence. The court found that one particular exhibit was prepared after the accident had occurred. Thus, the DOTD's recommendation for a flashing beacon had the potential to prejudice the decision of the factfinders by "raising an unwarranted [inference] that the state was negligent at the time of the offense." Id.
While it is true that a trial court has broad discretion on evidentiary rulings, it is likewise true that where the trial court abuses its discretion, its decision should not be allowed to stand. In McLean v. Hunter, 495 So.2d 1298, 1304 (La. 1986), the supreme court noted: "When a jury is given incorrect instructions in the law, or when a trial court makes a consequential error in the exclusion of evidence, no weight should be accorded the judgment of the trial court which implements the jury verdict." (Citing Thomas v. Missouri Pacific R. Co., 466 So.2d 1280 (La. 1985); Otto v. State Farm Mut. Auto. Ins. Co., 455 So.2d 1175 (La.1984); Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975)). The court held that the jury verdict was tainted by the trial court's consequential error in excluding testimony of a doctor, and further held, in such situations, the jury verdict is simply not entitled to a presumption of regularity. McLean, 495 So.2d at 1304.
In the instant case, we find legal error in the admission of evidence of subsequent
During questioning of Mike Sulser, a civil engineer employed by Traylor Brothers, Inc., one of the joint venture partners in KMTC-JV, plaintiffs' counsel asked: "this deal about cages collapsing is nothing new to Kiewit, is it?" Sulser replied that he did not know about Kiewit's previous experience. KMTC-JV's counsel objected on the grounds that the witness was not a Kiewit employee. Plaintiffs' counsel showed plaintiffs' exhibit 130 to Sulser as he read it to the jury. Plaintiffs' exhibit 130 is a report prepared by KECO in connection with an industry-wide study on rebar cage installation, which it conducted after the instant accident. It contained information about three accidents that had occurred more than ten years before the instant accident. Prior to Sulser's testimony, defendants strongly objected to evidence of other unrelated accidents and reminded the trial court that the motion in limine had been filed. In response, the trial court entertained argument on the motion. Plaintiffs' counsel argued that the evidence was admissible to impeach the witness regarding testimony that KMTC-JV was a safe company.
Louisiana Code of Evidence articles 402 and 403 require that the evidence sought to be introduced be relevant, but relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In Lee v. K-Mart Corp., 483 So.2d 609, 613 (La.App. 1st Cir.1985), writ denied, 484 So.2d 661 (La.1986), this court held that evidence of other accidents is only relevant where such accidents are closely related in circumstances to the accident, injury or hazard at issue in the instant case. To be relevant, the other accident should occur at substantially the same place and under substantially the same conditions and must be caused by the same or a similar defect, danger, act or omission. Evidence of other accidents occurring at substantially different places or under different circumstances or conditions is irrelevant and inadmissible. Id. In Lee, a witness was allowed to testify to other accidents that she could not establish the cause of and that she had not witnessed. This court concluded that the failure to establish the predicate that the cause of the other accidents was the same or similar to the accident at issue rendered the evidence inadmissible. Plaintiff contended the evidence was admissible to impeach the testimony. This court stated: "It is well settled that witnesses cannot be impeached on collateral and irrelevant matters."
In the instant case, after the court allowed introduction of plaintiffs' exhibit 130, defendants' witness, John Proskovec, testified to the lack of similarity between the other accidents and the instant accident.
Louisiana Code of Civil Procedure article 1424 is entitled "Scope of discovery; trial preparation; materials." Article 1424(A) provides that the trial court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. Article 1424(A) further provides that the court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney. Thus, the "attorney work-product rule" generally prohibits the release of information prepared in anticipation of litigation unless prejudice or hardship is shown to occur if access to the privileged information is denied. See Cooper v. Public Belt R.R., 2002-2051 (La. App. 4th Cir.1/22/03), 839 So.2d 181, 184.
The purposes of the work-product rule are to provide an attorney a "zone of privacy" within which he is free to evaluate and prepare his case without scrutiny by his adversary and to assist clients in obtaining complete legal advice. Id.; Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125, 131-132 (La.1983). Louisiana jurisprudence has consistently recognized that the privilege created by the work-product doctrine is qualified, not absolute. See e.g. Landis v. Moreau, 2000-1157 (La.2/21/01), 779 So.2d 691, 697.
In Cacamo v. Liberty Mut Fire Ins. Co., 99-1421 (La.App. 4th Cir.10/10/01), 798 So.2d 1210, 1214, writ not considered, 2001-3087 (La.1/25/02), 806 So.2d 665, writ denied, 2001-2985 (La.1/25/02), 807 So.2d 844, the court noted:
In the instant case, defendants claim that the trial court initially ruled correctly that material generated by a Kiewit corporate attorney was privileged, but then later erred in admitting the attorney's information through the video deposition of Jeffrey Travis, KMTC-JV's non-testifying expert. Travis was hired on behalf of KMTC-JV and worked with attorney Glen Summers. He investigated the accident and preserved some artifacts and evidence.
Prior to trial, KMTC-JV filed a motion in limine as to the privileged information. KMTC-JV sought to exclude all references to privileged communications and to documents identified in its privilege logs. The information was submitted to the trial court for an in camera inspection. On the first day of trial, the trial court ruled on KMTC-JV's motion in limine and held that attorney Summers' notes were privileged.
A review of the record leaves no doubt that much of Travis' testimony was based on information provided to him by corporate attorney Summers. The information was gathered by Summers in anticipation of litigation and in preparation for trial. It was provided to Travis, who assisted Summers and was a non-testifying expert. Louisiana Code of Civil Procedure article 1425(D)(2) restricts discovery of facts known to, and opinions held by, experts employed in anticipation of litigation and preparation for trial who are not expected to be called as witnesses at trial. Under Louisiana Code of Evidence article 506(B)(2), communications from Summers to Travis were communications between a lawyer and a representative of the lawyer
We must now determine whether the aforementioned legal errors tainted the jury's verdict as to KMTC-JV. As stated above, proof that KMTC-JV knew that its conduct would cause harm is the key to proving KMTC-JV's liability. Travis' testimony forms the basis of plaintiffs' claims that KMTC-JV experienced problems at W-3 and W-4, the two columns that were built before the accident occurred at W-2. Specifically, plaintiffs established, through Travis' testimony, that the rebar cages at those two prior columns leaned. Consequently, plaintiffs repeatedly argued that KMTC-JV knew that its method was substantially certain to cause harm. The jury also heard evidence of other accidents related to rebar cages, suggesting knowledge of KMTC-JV. despite proof that KMTC-JV did not actually exist when the prior accidents occurred, The jury also heard many witnesses testify to procedural changes made after the accident, such as cutting the rebar cages in half and keeping the crane attached longer. We find that the trial court's cumulative legal errors in admitting the inadmissible evidence was of such a serious prejudicial nature that it justifies this court giving little or no weight to the jury's verdict. See Gonzales, 320 So.2d at 165. Thus, our finding of prejudicial legal error requires us to conduct a de novo review of the entire record as to KMTC-JV's liability.
A review of the admissible evidence in the record shows that no other witness besides Travis testified about leaning rebar cages constructed at any of the other columns for the project. KMTC-JV crane operator, Mayon, specifically testified that he was the crane operator on the W-3 and W-4 columns on the Huey P. Long Bridge project, and he saw no leaning of any rebar cages. Angel Corona, J.L. Steel's foreman on the job, testified that he had not noticed any significant bending or buckling of a rebar cage prior to this accident.
Michael Phelps, Kiewit field engineer, testified that he was near the crane on the date of accident. He testified that he did not see the rebar cage at column W-2 lean before the crane was unhooked, and he never heard anyone say that they saw the cage leaning before the crane was unhooked. He testified that similar rebar cages stood overnight with no crane attached, only guy wires. Phelps also testified that he did not think the W-2 rebar cage was too large before the lift was made and that it was only two-to-three-feet taller than those used on earlier lifts. He testified that the W-2 rebar cage was spot checked before the lift, and no problems were identified. Phelps further testified that the DOTD contract administrator, Louisiana Timed Managers, a Joint Venture Partnership (LTM), did not create any non-conformance reports on any of the rebar cages for the project.
John Proskovec, vice president of Kiewit Louisiana and manager of the Louisiana area for the company, testified that KMTC-JV made a mistake in the field when attaching guy wires. He testified that Ceasar Velador pulled a tape to measure the location for the blocks and thought he was putting them in the right places, but after the accident, they saw that KMTC-JV had not followed the guy wiring plan, which was prepared by KECO. Proskovec testified that, if the guy wiring plan had been followed, the accident would not have happened. He further testified that if this cage was doomed to fail,
Mike Sulser, a Traylor Brothers engineer, testified that he is a licensed Louisiana engineer and worked as the rebar and concrete coordinator on the project. He testified that he worked with J.L. Steel on this project every day since the work began in 2008. He also worked closely with CMC Rebar. Sulser testified at length regarding the safety measures and procedures followed at the job site, including a hazard analysis, a work plan quality analysis, and several layers of regular safety meetings with all parties involved.
Bruce Peterson, M & M project manager, testified that no one at M & M believed that KMTC-JV intentionally caused the accident nor has M & M ever believed that KMTC-JV knew or was substantially certain that the accident was going to occur, but then did the operation anyway. Frank Denton, M & M's expert, also concluded that KMTC-JV did not know in advance that this accident was substantially certain to happen and then proceeded with the project anyway. Plaintiff's expert, Dr. James Harold Deatherage, testified that he reviewed 30,000 documents, as well as testimony, and did not find any evidence that anyone from KMTC-JV intended to harm anyone. We understand how the jury could have concluded that KMTC-JV was at fault. Their conduct was certainly negligent and perhaps even grossly negligent, but our thorough review of the admissible evidence in the record convinces us that KMTC-JV's conduct does not rise to the level of an intentional act. Even if we considered the admission of testimony about prior leaning of rebar cages as harmless error that testimony does not suffice to prove that KMTC-JV knew that the accident was substantially certain to follow. As in Reeves, 731 So.2d at 212-213, there had been no prior accident. Also similar to Reeves, the fact that the employer knew that the work was dangerous is not sufficient to support a finding that the employer intended the harm to occur. Likewise in this case, we conclude that the test for finding an intentional act is not met under these facts, and thus, the judgment rendered in accord with the jury verdict casting KMTC-JV 80% at fault is reversed. Plaintiffs' exclusive remedy against this statutory employer is pursuant to the Louisiana Workers' Compensation Act.
Having concluded that KMTC-JV's conduct did not constitute an intentional act, we pretermit a full discussion and legal analysis of KMTC-JV's assignments of error regarding incomplete and confusing jury instructions on intentional acts and prejudicial photographs.
KMTC-JV and KECO contend that the jury manifestly erred in concluding that KECO was 10% at fault and that KECO's fault contributed to the death of
Applying the standard of review set out above, we cannot say that the jury's finding of fault on the part of KECO was manifestly erroneous, Dr. Deatherage testified that the KECO guy wiring plan failed to give tension directives for the wires. He testified that KECO was in the best position to raise the question of the rebar cage stability and that KECO should have performed a stability analysis. The testimony of Dr. Deatherage that KECO should have mandated specific tension on the wires and should have performed a cage stability analysis is a reasonable basis on which the jury could have concluded that KECO was negligent and that KECO's fault contributed to the collapse of the rebar cage. This is true despite the fact that KECO's plan was not followed. Even if legal error in connection with evidentiary rulings interdicted the fact-finding process as to KECO, and even after we exclude the erroneously admitted evidence, we conclude, based on our de novo review of the evidence in the record, there is still adequate evidence to support the jury's conclusion that KECO was at fault and that its fault caused or contributed to Martinez's death. Accordingly, this assignment of error has no merit.
M & M argues that the trial court committed reversible error when it allowed plaintiffs' expert to give opinion testimony interpreting the contract between M & M and DOTD. M & M also contends that Louisiana law requires that plaintiffs claiming professional negligence must establish that the professional failed to perform his services in accordance with the skill normally exercised by others in his profession in the same locality and plaintiffs in this case failed to establish what that standard was. M & M further argues that the trial court erred in prohibiting M & M from conducting a meaningful cross-examination of plaintiffs' expert on voir dire as to the locality standard of care, and additionally, the trial court erred in refusing to allow M & M's engineering expert to testify regarding the locality standard of care because his license expired after he retired from practice. M & M avers that these legal errors resulted in the jury erroneously finding that M & M caused or contributed to Martinez's death.
Under Louisiana law, where the words of a contract are clear and unambiguous, interpretation of the contract
M & M filed two motions in limine seeking to prohibit plaintiffs' expert, Dr. Deatherage, from testifying as to the meaning of the contract, between M & M and DOTD, and the scope of M & M's duty thereunder. M & M sought a ruling from the trial court prior to plaintiffs' expert being offered to testify.
Admissibility of expert testimony in Louisiana is governed by Louisiana Code of Evidence article 702, which provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." A trial court is accorded broad discretion in determining whether expert testimony is admissible and who should or should not be permitted to testify as an expert. Merlin v. Fuselier Const. Inc., 2000-1862 (La. App. 5th Cir.5/30/01), 789 So.2d 710, 718.
However, Dr. Deatherage's opinion was not relevant to assist the jury on a technical issue or in determining the contracting parties' intent. Admission of the testimony on this point was prejudicial legal error. The jury could have easily concluded that M & M had a duty to involve itself in the contractor's decisions on how to build the columns for the bridge. In addition, the expert's testimony in this regard does not meet the standards of technical or special knowledge. See Cheairs v. State ex rel.
To determine the scope of the duty owed by M & M, this court must consider the express provisions of the contract between the parties. See Day v. National U.S. Radiator Corp., 241 La. 288, 128 So.2d 660, 666 (1961). The contract between DOTD and M & M is for design services. Supplement 28 to the contract addresses M & M's duty to provide design services during construction. It reads, in pertinent part:
Review of the specifications for the bridge project contained in Section 806.03 of the Red Book (the standard specifications required by the State of Louisiana for roads and bridges) shows that M & M is required to review the reinforcing steel list the contractor intends to use on the job and the placement drawings for that steel. However, M & M argues that the contract does not require M & M to review erection procedures. Since we find that the words of the contract are ambiguous in that they are subject to different interpretations, we must review the testimony of the parties to determine their intent. Record testimony of the relevant parties is as follows.
Steven Spohrer, LTM deputy director of construction, testified that the Red Book did not require M & M to review erection drawings for any column used on this project. M & M was required to review shop drawings in order to determine that what the contractor planned to build was in conformity with M & M's design. However, Spohrer testified that no rebar cage erection drawings were submitted by LTM (the State's contract administrator for DOTD) to M & M for review.
Tom Thorn, KMTC-JV project manager, testified that he had overall responsibility for the project. He testified that it was KMTC-JV's duty to place the guy wires and to decide how to lift the rebar cage and that M & M had no duty to observe work at the site. Thorn testified that the placement drawings for the W-2 column did not address how the column would be built. He further testified that M & M had no involvement with design of the
Bruce Peterson, senior associate project manager for M & M, testified that M & M had no duty to go to the site unless called on to do so and that M & M was not called to go to the site in connection with any column work. He also testified that M & M was not asked to review any construction procedures for steel reinforced columns. Peterson stated that the Red Book spells out which shop drawings are required to be submitted to M & M by the general contractor. According to Peterson, there is no requirement that M & M review the general contractor's construction procedures for reinforced steel concrete columns. M & M reviewed placement drawings to ensure that the bridge was being built in accordance with the plans and specifications. Peterson testified that M & M does not review shop drawings for erection procedures, and the specific methods for building the bridge are chosen exclusively by the general contractor. He further testified that M & M never received a guy wiring plan for any rebar cage. Additionally, Peterson stated that LTM did not ask M & M to review the May 2009 guy wiring plan for the W-2 column. Peterson testified that only two items were sent to M & M to review under Supplement 28 of the contract with DOTD that pertained to EBBW-2: 1) shop drawings for steel, and 2) the September 2008 guy wiring plan for concrete forms.
Our review of the record convinces us that, under its contract with DOTD, M & M did not have a duty to review erection procedures in connection with the construction of the W-2 column. As the design engineer, M & M reviewed only the items it was specifically asked to. review and that were sent to it by LTM. LTM was under contract with DOTD to provide construction management, and it had on-site presence throughout the project. When M & M reviewed CMC Rebar's placement plans for the reinforcing steel required to be included inside of the W-2 column, M & M fulfilled its contractual obligation to DOTD by verifying that KMTC-JV intended to build the column as designed.
Based on the admissible evidence and the applicable law, we conclude that M & M had no duty to review the contractor's means and methods for erection of the rebar cages and did not review the erection plan for the rebar cage involved in the accident or for any other cage.
The trial court also committed legal error in denying M & M's counsel the right to fully cross-examine plaintiffs' expert regarding the standard of care applicable to M & M's conduct, Also fatal to plaintiffs' claim against M & M was their failure to introduce evidence of the standard of care in the locality. Dr. Deatherage testified that the standard of care is what a reasonably prudent contractor or engineer would do under similar circumstances, regardless of where he is. He testified that he never practiced engineering in Louisiana. He also admitted that he made no investigation regarding the standard of care applicable to Louisiana engineers or to the location of the project.
In Carter v. Deitz, 556 So.2d 842, 843 (La.App. 4th Cir.), writs denied, 566 So.2d 960, 992 and 993 (La.1990), M & M, a professional engineering firm, conducted bridge safety studies on the Greater New Orleans Bridge and recommended that a bridge safety barrier not be installed. After an automobile accident occurred, M & M was sued for professional negligence for failing to recommend installation of the
In the instant case, Dr. Deatherage did not give testimony establishing the standard of care by which M & M's conduct was to be judged. Instead, he testified to his personal opinion based on his own inclination or belief that the design engineer on this bridge project should have sought out the general contractor's means and methods of building what M & M designed.
Our review of the record reveals that plaintiffs failed to establish the standard of care by which M & M's conduct was to be judged. Further, there is no evidence that suggests M & M's design of the bridge expansion was faulty. Accordingly, the judgment finding M & M at fault in causing or contributing to Martinez's death is reversed.
All defendants challenge the total jury award of $13 million to the plaintiffs. The jury awarded damages as follows;
Award for Ulvaldo Soto Martinez's suffering prior to his death:
Terror during the fall $250,000
Bodily pain and suffering before death $250,000
Emotional and mental anguish after the fall, prior to death $500,000
__________
TOTAL $1,000,000
Maria Cruz Maldonado's award for the wrongful death of her husband:
Past emotional pain and suffering $500,000
Future emotional pain and suffering $1,500,000
Past lost economic benefits. $100,000
Future lost economic benefits $1,400,000
Loss of love, affection and society $1,500,000
__________
TOTAL $5,000,000
Justin Maldonado's award for the wrongful death of his father:
Past emotional pain and suffering $700,000
Future emotional pain and suffering $750,000
Loss of love, affection and society $1,500,000
Future lost economic benefits $50,000
__________
TOTAL $3,000,000
Usvaldo Maldonado's award for the wrongful death of his father:
Past emotional pain and suffering $700,000
Future emotional pain and suffering $750,000
Loss of love, affection and society $1,500,000
Future lost economic benefits $50,000
__________
TOTAL $3,000,000
Gilberto Soto Martinez's award for witnessing the death of his brother:
Past emotional pain and suffering $500,000
Future emotional pain and suffering $250,000
Loss of love, affection and society $250,000
__________
TOTAL $1,000,000
The factfinder is given much discretion in the assessment of damages. La. Civ.Code art. 2324.1. The vast discretion vested in the factfinder should rarely be disturbed on appeal. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Damage awards on appellate review will be disturbed only when there has been a clear abuse of that discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993). The initial inquiry must always be directed at whether the trial court's award for the particular injuries and their effects upon this particular injured person is a clear abuse of the factfinder's much discretion. Emery v. Owens-Corporation, 2000-2144 (La.App. 1st Cir.11/9/01), 813 So.2d 441, 457, writ denied, 2002-0635 (La.5/10/02), 815 So.2d 842; Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Only after such a determination of an abuse of discretion is a resort to comparative analysis of prior awards appropriate, and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Youn, 623 So.2d at 1260 (citing Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976)).
A plaintiff is entitled to recover for all damages necessary to compensate for the physical injuries suffered. Hymel v. HMO of Louisiana, Inc., 2006-0042 (La.App. 1st Cir.11/15/06), 951 So.2d 187,
The jury awarded a total of $1 million for pain and suffering and mental anguish suffered by Martinez, before his death. Survival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. Leary v. State Farm Mut. Auto. Ins. Co., 2007-1184 (La.App. 3d Cir.3/5/08), 978 So.2d 1094, 1098, writ denied, 2008-0727 (La.5/30/08), 983 So.2d 900. See also Temple v. Liberty Mut. Ins. Co., 330 So.2d 891, 893-894 (La. 1976). In determining survival damages, the factfinder should consider the severity and duration of any pain and suffering or any pre-impact fear experienced by the deceased up to the moment of death. Leary, 978 So.2d at 1098. "Survival damages are properly awarded if there is even a scintilla of evidence of pain or suffering on the part of the decedent, and fright, fear, or mental anguish during an ordeal leading to the death is compensable." Leary, 978 So.2d at 1098 (quoting Patrick v. Employers Mut. Cas. Co., 99-94 (La. App. 3d Cir.8/11/99), 745 So.2d 641, 652, writ denied, 99-2661 (La. 11/24/99), 750 So.2d 987).
A survival action permits recovery only for damages actually suffered by the deceased from the time of injury to the moment of death. Etcher v. Neumann, 2000-2282 (La.App. 1st Cir.12/28/01), 806 So.2d 826, 840, writ denied, 2002-0905 (La.5/31/02), 817 So.2d 105; Samuel v. Baton Rouge Gen. Med. Center, 99-1148 (La.App. 1st Cir.10/2/00), 798 So.2d 126, 129. Where there is no indication that a decedent consciously suffered, an award for pre-death physical pain and suffering should be denied. Samuel, 798 at 129; Pierre v. Lallie Kemp Charity Hosp., 515 So.2d 614, 619 (La.App. 1st Cir.), writ denied, 515 So.2d 1111 (La. 1987). The question of whether the decedent actually consciously suffered is a factual issue, governed by the manifest error-clearly wrong standard. See Cavalier v. State of La. through DOTD, 2008-0561 (La.App. 1st Cir.9/12/08), 994 So.2d 635, 645; Etcher, 806 So.2d at 840.
The testimony revealed that Martinez fell from a height of over 60 feet when the rebar cage collapsed. He was found lying face down and was breathing when the first person arrived to assist him. He died at the scene shortly thereafter. There is no evidence in the record that Martinez was conscious at the scene. Therefore, we find that the jury award of $250,000 for Martinez's physical pain and suffering before his death is abusively high.
The evidence supports a finding that Martinez would have been frightfully aware that he was likely to die or suffer serious injury when the rebar cage started its descent. While pre-impact fear is compensable, we deem the jury's award of $250,000 for terror during the fail and $500,000 for mental anguish after the fall, but prior to his death, to be so excessive as
In Raymond v. Government Employees Ins. Co., 2009-1327 (La.App. 3d Cir.6/2/10), 40 So.3d 1179, 1192, writ denied, 2010-1569 (La.10/8/10), 46 So.3d 1268, an award of $50,000 for survival damages was affirmed where the decedent died due to a car, crash. The court noted that the decedent was aware that the collision was about to occur and he obviously feared the collision. At the scene, the decedent grunted and raised his head two or three times, and his eyes were halfway open. He was transported to the hospital and was observed to have suffered severe chest and abdomen trauma, multiple left rib fractures and pulmonary contusions.
In Long v. State, Through the Dept. of Trans. and Dev., 37,442 (La.App. 2d Cir.11/24/03), 862 So.2d 149, reversed on other grounds, 2004-0485 (La.6/29/05), 916 So.2d 87, the driver of a vehicle that collided with a train was killed. A witness testified that he heard the collision and, on arrival at the scene, observed the decedent lying on the ground. He testified that he knelt beside the decedent, saw that she was alive and tried to give her comfort. The witness stated that when he called the decedent's name, she tried to respond by making gurgling sounds. He further testified that in response to his questions, the decedent's body tensed and she appeared to try to speak, but she could not form words. The witness also testified that the decedent experienced difficulty breathing and that her body was "mangled" with apparent severe fractures of her arms and legs. He estimated that the decedent lived for approximately twenty to thirty minutes after impact. Id. at 156-57. The court concluded that, based on the testimony and the photographs depicting the extensive damage caused to the decedent's vehicle, there was evidence from which the jury could have found that the decedent was conscious for a period of time following the collision and that she experienced pain and suffered prior to losing consciousness, Id. at 157, The court affirmed an award of $250,000 in survival damages. Id.
Based on our review of jurisprudence and considering the facts of the instant case, we find that the highest amount to be reasonably within the jury's discretion for survival damages in this case is $300,000.
Wrongful death claims do not arise until the victim dies, and they are meant to compensate the designated survivors for their loss of the decedent. See La. Civ.Code art. 2315.2. The elements of the award for wrongful death include loss of love, affection, companionship, support, and funeral expenses. Wingfield, 835 So.2d at 808.
The jury awarded Maldonado the sum of $5 million in wrongful death damages. Of that sum, $1.5 million is for loss of love, affection, and society, and $2 million is for past and future emotional pain and suffering. The remaining $1.5 million awarded to Maldonado is for economic loss, which we will address separately. The jury also awarded $3 million in wrongful death damages to each of decedent's minor sons, which included $50,000 each for lost economic benefits. All defendants argue these awards are abusively high.
Maldonado testified that she and Martinez met when she was fourteen years old. They dated for seven years and married in 2000, when she was twenty-three years old. It is clear from the testimony that they had a loving relationship and that Maldonado misses her husband very much. They had two sons, Usvaldo Jr., born on December 25, 2001, and Justin, born on August 22, 2005. Martinez was proud of their two sons, and he supported the family doing construction work. On the date of his death, Martinez was thirty-three years old and his sons were seven and three,
We find that the jury abused its discretion in awarding $3.5 million for pain and suffering and loss of love, affection and society to Maldonado. In Roberts v. Owens-Corning Fiberglas Corp., 2003-0248 (La.App. 1st Cir.4/2/04), 878 So.2d 631, 644, writ denied, 2004-1834 (La.12/17/04), 888 So.2d 863, this court affirmed a $1 million wrongful death award to a surviving spouse of a 45-year marriage whose husband experienced an excruciatingly painful death from mesothelioma. The wife in that case quit her job to care for her dying husband and left her family home in order to move her husband into an apartment in closer proximity to his doctors. She took care of her husband for months and held his hand when he died. This court reduced a surviving spouse's $1 million wrongful death award to $500,000 in Wingfield, 835 So.2d at 807-808. Mr. Wingfield was 60 years old at the time of death, and he spent a lot of time on the road as a truck driver, but the couple had been married for 27 years and had a close and loving relationship. In O'Connor v. Litchfield, 2003-0397 (La.App. 1st Cir.12/31/03), 864 So.2d 234, 245-247, writ not considered, 2004-0655 (La.5/7/04), 872 So.2d 1069, this court affirmed a wrongful death award of $300,000 to the surviving spouse and $200,000 to the adult son. Mr. O'Connor injured his ankle and back in a fall and, during treatment, was discovered to have a fatal disease, which was exacerbated by his injuries. He was under hospice care for the last six months of his life. This period was noted to be especially difficult for his wife and son. Nevertheless, the appellate court affirmed the aforementioned award.
We find that the highest amount the jury could have reasonably awarded for wrongful death damages to the surviving spouse of this nine-year marriage under these facts Is $750,000.
The children were seven and three on the date of their father's death. They face a future without their father's affection, care, assistance and advice. Nevertheless, we find that the jury abused its discretion in awarding each child $3 million for wrongful death damages. A jury award of $125,000 in damages to each of the decedent's two minor children and $100,000 to each of three adult children was upheld by this court in Ratliff v. State ex rel. Dept. of Transp. and Development, 2002-0733 (La.App. 1st Cir.3/28/03), 844 So.2d 926, 939, writ denied, 2003-1739 (La.10/10/03), 855 So.2d 350. In Scott v. Pyles, 99-1775 (La.App. 1st Cir.10/25/00), 770 So.2d 492, 495, writ denied, 2000-3222 (La.1/26/01), 782 So.2d 633, this court found that the highest that could be awarded to 13-year-old and 10-year-old daughters for the loss of their father was $500,000 and $400,000, respectively. In light of the evidence in the record, we find that an award of $450,000 is the highest amount the jury could have reasonably awarded to each minor child in the instant case. Therefore, we reduce the wrongful death damage award from $3 million to $450,000 for each minor child.
Louisiana Civil Code article 2315.6 allows recovery for mental anguish or emotional distress sustained by a claimant. The damages must result from witnessing an event that caused physical injury to another. The brother of the decedent is among the individuals who have a cause of action. See La. Civ.Code art. 2315.6(A)(3). In order to recover, a claimant must prove that the extent of harm sustained by the tort victim was so severe that it could reasonably be expected that the claimant would experience severe and debilitating emotional distress. La. Civ.Code art. 2315.6(B).
All defendants claim that the jury abused its discretion in awarding $1 million to decedent's brother, Gilberto Martinez. Defendants KMTC-JV and KECO also claim that the jury committed manifest error in awarding damages in two categories: (1) future emotional pain and
We agree that the damage award is excessive. A review of the testimony shows that Gilberto Martinez was working on the project on the accident date and saw the rebar cage collapse. When he ran to help, he saw his brother on the ground with the others present. Gilberto Martinez testified that his brother did not speak, his eyes were closed, and he was bleeding from the mouth. Gilberto Martinez was there when his brother took his last breath. He estimated that his brother lived for about twenty to twenty five minutes after the ambulance arrived. Gilberto Martinez testified that he has not consulted with a doctor, nor has he seen a counselor or a priest as a result of witnessing his brother's death. There was no testimony indicating that he missed any work subsequent to the accident. He testified that he has had nightmares about his brother since the accident.
Under the circumstances of this case, we find that the jury committed manifest error in awarding $500,000 to Gilberto Martinez for past emotional pain and suffering combined with $250,000 for future emotional pain and suffering resulting from witnessing the accident. Further, the $250,000 award for loss of love, affection and society is not a recoverable element of damages for a bystander. See La. Civ.Code art, 2315.6(A).
In Craighead v. Preferred Risk Mut. Ins. Co., 33,731 (La.App. 2d Cir.8/25/00), 769 So.2d 112, 123, writ denied, 2000-2946 (La.12/15/00), 777 So.2d 1230, an award of $50,000 was affirmed for a brother who witnessed his younger sister being hit by a car and being thrown 63 feet, resulting in her death. His mother testified that he handled the situation well in counseling. His father testified that he showed his grief physically through crying and getting sick. In the two years since the accident, the only change was the length of time between episodes. Pursuant to our review of the record, the highest reasonable amount for bystander damages under the facts in this case is $100,000.
Awards for loss of support include loss of support from the date of death to the date of trial and loss of future support from the date of trial through the length of the decedent's work-life expectancy. Brossett v. Howard, 2008-535 (La.App. 3d Cir.12/10/08), 998 So.2d 916, 932, writ denied, 2009-0077 (La.3/6/09), 3 So.3d 492. Factors to be considered in determining a proper award for lost future income are the decedent's physical condition before his death, the decedent's past work history and consistency thereof, the amount the decedent probably would have earned absent
Defendants initially argue that no lost wages can be awarded in this case because Martinez was an undocumented alien, and the federal Immigration Reform and Control Act ("IRCA"), 8 U.S.C. § 1324, prohibits the employment of undocumented aliens.
Lost earnings awards in wrongful death and survival actions are state tort remedies and are equivalent to those authorized under the Longshore and Harbor Workers' Compensation Act (LHWCA)
In the instant case, since Martinez was not legally authorized to be in this country, he was subject to deportation at any time. Based on these facts, we conclude that defendants were entitled to establish that use of past wages to calculate future damages was improper, and they were entitled to show what a proper measure of damages should be. It was error for the trial court to exclude that evidence. Since the record contains all necessary evidence on which to base a determination of an award, including the proffer of economic testimony, we will conduct a de novo review on the issue of economic loss.
Plaintiffs' economic expert, Dr. Gerald Cassanave, calculated Martinez's loss of earnings based on a five-year history of earnings using the years 2003, 2004, 2005, 2008 and 2009. He calculated an average
Defendants' expert economist, Dr. Kenneth Boudreaux, calculated Martinez's earnings based on a five-year history using his five consecutive years of earnings prior to the accident. This period gave an annual average wage of $20,550. He testified that the documents normally relied on to calculate economic loss, such as tax returns and social security earnings records were not available for review. Dr. Boudreaux criticized Dr. Cassanave for skipping the years 2006 and 2007, claiming they were recession years in the construction industry, since those were boom years in construction in south Louisiana, Dr. Boudreaux reduced the total amount of projected future earnings by 26%, which represents the projected personal consumption by Martinez. Dr. Boudreaux calculated a total economic loss of $330,000. He did not add any amount for fringe benefits and was critical of Dr. Cassanave for doing so since there was no evidence that Martinez ever received fringe benefits on any job. He also criticized Dr. Cassanave's analysis for including loss of household services since there was no evidence that costs for such services were incurred after Martinez's death. Review of the proffered testimony of Dr. Boudreaux shows that in his home country, Martinez would have earned approximately $3,699.05 annually. He testified that, using Mexican wage rates, the total loss of earnings for a twenty-four-and-one-third-year work-life expectancy is $66,505.88.
After a thorough review of the record, we conclude that the jury's award of $1.6 million for loss of economic benefits is manifestly erroneous. We therefore reduce the award for economic loss to $330,000 based on U.S. wages as testified to by Dr. Boudreaux using five consecutive years of earnings before Martinez's death.
This tragic accident was caused by the negligence of KMTC-JV in selection of the means and methods for erection of column W-2 on the Huey P. Long Bridge. Our exhaustive review of the record convinces us that KMTC-JV neither intended to harm anyone on this job she nor did it have knowledge that harm was substantially certain to result from the means and methods it selected to build this column. Plaintiffs' recovery against KMTC-JV is limited to workers' compensation. Thus, we reverse the jury verdict in part as to the fault of KMTC-JV.
Although the evidence shows that the KECO guy wiring plan was not followed, there is testimony in the record that KECO should have tested the rebar cage stability and should have supervised the implementation of its guy wiring plan. Therefore, we cannot say that the jury's finding that KECO was at fault is manifestly erroneous. Accordingly, we affirm the jury verdict in part, to the extent it cast KECO 10% at fault.
We also hold that M & M, as design engineer, had no duty to inspect the methods employed by the general contractor who was responsible for building the bridge expansion. Accordingly, we reverse
As for the damages awarded by the jury, we hereby amend the damage awards as follows: survival damages, $300,000; wrongful death damages to spouse, $750,000; wrongful death damages to each child, $450,000; loss of support, $330,000; and bystander damages to brother, $100,000; for a total damage award of $2,380,000, which is subject to the 10% allocation of fault as to KECO.
For all the reasons assigned, we hereby reverse the judgment rendered in accordance with the jury verdict in part, amend in part, affirm in part as amended, and render judgment in favor of plaintiffs. All costs of this appeal are assessed to KECO.
McDonald, J., agrees in part and dissents in part and assigns reasons.
GUIDRY, J., concurs in part, dissents in part, and assigns reasons.
GUIDRY, J., concurring in part and dissenting in part.
I agree with the majority's reversal of the jury's determination that an intentional act was committed in this matter, and I further agree with the majority's determination that the jury's award of damages was excessive in this case. And while I concur with the majority's reduction of the awards for the wrongful death claims for Ms. Maldonado and her sons, I disagree with the majority's far-reaching reduction of the survival action claim, the wife's economic loss claim, and the brother's bystander claim. I would award $250,000 for the fear and terror the victim experienced during the fall and $500,000 for his pain and suffering, for a total survival action award of $750,000. For the wife's economic loss, I believe $924,484 is a proper award based on Dr. Cassanave's opinion, minus amounts attributable to fringe benefits and value of household services, for which I found no basis in the record to support those additional elements of her economic loss claim. Finally, with respect to the bystander award to the brother, I believe that a proper award for that claim would be no less than $150,000. Thus, I respectfully dissent from those portions of the majority opinion that reduce the awards for the survival action claim, the wife's economic loss claim, and the brother's bystander claim below the amounts of $750,000, $924,484, and $150,000, respectively.
McDONALD, J., agreeing in part and dissenting in part.
While I agree with the majority opinion reversing the jury finding that an intentional act was committed by Mr. Martinez's employer and I agree with the conclusion that the jury award for damages was excessive, I respectfully dissent in the amount of the reduction. I believe the highest amount the jury could have reasonably awarded in most categories is less than that found by the majority. The only awards with which I agree is the $100,000 award to Gilberto Soto Martinez for witnessing the death of his brother and the $330,000 award to Ms. Maldonado for economic loss.
As to the survival claim, I believe the majority's reduction of the award to $300,000 is still too high and not supported by the evidence. The testimony indicated that Mr. Martinez fell from a height of over 60 feet when the rebar cage collapsed. He was found lying face down and was breathing, but died at the scene shortly thereafter. There is no evidence in the record that Mr. Martinez was conscious at the scene. The cases cited and relied on
I also find the majority's reduction of the award to Ms. Maldonado and to each child for the wrongful death of Mr. Martinez to still be excessive.
Thus, I respectfully dissent from those portions of the majority opinion that only reduces the award for the survival action claim to $300,000, the widow's wrongful death claim to $750,000 and the two children's wrongful death claim to $450,000. I agree with the reduction of the widow's economic loss claim to $330,000 and the reduction of the brother's bystander claim to $100,000.
