GUIDRY, Judge.
In this cross appeal of a tort judgment rendered in favor of a former high school student who sustained an eye injury while on a school-sponsored band trip, the school board appeals the finding of liability and allocation of fault, and the tort victim and his father appeal the amount of damages awarded by the trial court.
In May 2006, Kent Kinchen, while a junior at Ponchatoula High School, participated in a school-sponsored band trip to the Smokey Mountain Music Festival in Gatlinburg, Tennessee. During the school-sponsored trip, some band members went to local souvenir shops and purchased Airsoft novelty guns. Sometime during the late evening of May 4 and early morning of May 5, 2006, while at their motel, several band members engaged in a game wherein they would shoot plastic pellets from the guns at each other. Unfortunately, during the game, Kent was shot in his left eye.
On May 3, 2007, Kent and his father, Barry Kinchen, filed a petition for damages against the Tangipahoa Parish School Board regarding the incident. They also filed suit against Troy and Nancy Miller, as the parents and legal guardians of Mason Miller, the band student who was alleged to have negligently shot Kent in the eye. The Kinchens later amended their petition to additionally name Allstate Insurance Company, as the Millers' homeowner's insurer, and Louisiana Self Insured Group (incorrectly named Louisiana Schools Self-Insured Group in the amended petition), as the liability insurer for the school board. The matter eventually proceeded to a bench trial solely against the school board.
In its appeal of the February 28, 2014 judgment, the school board asserts the following as errors committed by the trial court:
In their cross appeal of the judgment, the Kinchens contest the quantum of the damages awarded as abusively low and assert that the trial court failed to address several categories of damages.
Schools and school boards, through their employees or teachers, owe a duty of reasonable supervision over students. La. C.C. art. 2320;
To establish a claim against a school board for failure to adequately supervise the safety of its students, a plaintiff must prove: (1) negligence on the part of the school board, its agents, or teachers in providing supervision; (2) a causal connection between the lack of supervision and the accident; and (3) that the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised.
In support of its first assignment of error, the school board argues that the trial court manifestly erred in finding that it breached its duty to provide reasonable, competent supervision appropriate to the age of the children and attendant circumstances. Citing the principle that injuries resulting from play or horseplay between discerning students, which at some stage may pose an unreasonable risk of harm to the participants, does not automatically render a school board liable,
Theodore Forrest, the band director for Ponchatoula High School at the time of the incident, testified that he was aware of the tendency of students to purchase weapons based on the school band's prior participation in the Smokey Mountain Music Festival.
Considering that the established rule was to knowingly allow students to purchase weapons, we cannot say the trial court was manifestly erroneous in finding that the school board breached the duty of reasonable supervision under the circumstances. Allowing students to purchase weapons manifested knowledge that students might desire such items, and in desiring such items, it is more than reasonably foreseeable that such students would choose to keep and use such weapons as opposed to turn them in as instructed. Commensurate with allowing students to purchase weapons was the need to insure compliance with the rule that the weapons be turned over to school personnel or a chaperone, such as requiring students to be chaperoned while on shopping excursions or actively questioning and inspecting students in regard to purchases. There was some testimony that a few Airsoft novelty guns were turned in prior to the incident in which Kent was injured and that a night-time room check was performed prior to Kent's injury, but there was also testimony to the contrary. Moreover, the witnesses who testified that prior to Kent's injury, weapons were turned in and room checks were conducted admitted that they did not personally observe or participate in the turning in of any weapons and did not perform or remember who performed room checks.
Under the manifest error standard of review, where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous.
Having therefore found no error in the trial court's determination of liability against the school board, we will now consider the school board's alternative assignments of error regarding the allocation of fault. We find merit in these assignments of error.
Louisiana Civil Code article 2323 provides:
Like all factual findings, the standard of review of comparative fault allocations is that of manifest error.
In its reasons for judgment, the trial court expressly stated that it found the school board liable "in part" for the injury suffered by Kent; however, in its judgment, the trial court decreed that the school board pay all of the damages assessed. We have previously concluded that the trial court did not err in finding the school board liable; thus, the school board must be assessed with some fault. Yet, based on the governing law and facts in this matter, it is equally evident that fault should have also been allocated to the students involved in the game of shooting, including Kent.
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Thus, considering the aforementioned factors, it is clear that while the school board bore some fault for Kent's injury, it was error to assess it with sole fault for the accident. The school board allowed the weapons to be purchased and failed to enforce its rule to turn in the weapons, while the actions of the students were deliberate, willful, and done in complete violation of the established rules and with full knowledge of the danger presented by their horseplay.
The students involved were all high school age students. They acknowledged knowing the rule that if a weapon was purchased, it must be turned in to Mr. Forrest or a chaperone. And while there was testimony that Airsoft novelty guns were openly purchased and carried in shopping bags back to the motel, students also admitted that upon purchasing the guns, they immediately returned to the motel to put the guns away to avoid detection. None of the students involved reported any of the students whom they knew had not turned in Airsoft novelty guns they had purchased nor did they alert school personnel or chaperones about the game of shooting that took place prior to Kent being injured. And although the game of shooting in which Kent was injured may have been spontaneous in the sense that it was not specifically planned or organized, it nevertheless lasted for a sufficient duration that school personnel or chaperones could have and should have been alerted to the activity.
Under such circumstances, we find the school board should have only been allocated with sixty percent fault, with the remaining forty percent being allocated ten percent to Kent and thirty percent to the student who shot him in the eye.
Therefore, having fully addressed the arguments raised by the school board, we will now address the Kinchens' arguments regarding the amount of damages awarded. The Kinchens assert that not only is the amount of general damages awarded Kent abusively low, they further contend that the award fails to cover any claim for future medical costs or loss of vocational opportunities. Additionally, the Kinchens argue that the award for Mr. Kinchen's loss of consortium claim was likewise abusively low. We will first address Mr. Kinchen's loss of consortium claim.
The compensable elements of a parent's claim for loss of consortium of a child include loss of love and affection, loss of companionship, loss of material services, loss of support, loss of aid and assistance, and loss of felicity.
The evidence presented regarding Mr. Kinchen's loss of consortium claim is the following testimony that he gave at trial:
Based on this evidence, we cannot say the trial court abused its discretion by awarding Mr. Kinchen $1,000.00 for his loss of consortium claim. That leaves us to review the sufficiency of the damages awarded Kent.
General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration.
At trial, Kent testified that during the initial time period right after his injury, his eye "ached terribly." He said that during the first several months following his injury, his treating ophthalmologist instructed him to stay in a dark room and not partake in any strenuous activity to guard against the risk of re-bleeding. At the time of trial, Kent said he could not see out of the upper left-hand corner of his left eye and that his eyes did not sync like they used to, even though he does "see good straight on." As for the impact the injury has had on his life, Kent said he suffered from depression because his career goals of being a professional baseball player or helicopter pilot were over.
Prior to the accident, Kent was diagnosed with near-sighted vision and wore contact lenses to correct his vision. Immediately following his injury, Kent was seen by doctors in Tennessee, and on returning to Louisiana, he was referred to board-certified ophthalmologist, Dr. Marilu O'Byrne. Dr. O'Byrne
In July 2006, as Dr. O'Byrne began to taper Kent off of steroid eye drops because of the improvement in his traumatic iritis, she also took Kent completely off of pressure medicine.
In regard to his future medical treatment and activities, Dr. O'Byrne stated that Kent was off all medications, and she did not anticipate him having to resume any medication. She testified that she advised Kent to have yearly check ups as a follow up and to make sure that his pressure stays normal in the future, but she also noted that he should have follow up since he wears glasses. She also testified that she would recommend that a normal patient, without Kent's problems, seek follow up treatment "[u]sually anywhere from a year or two." Hence, Dr. O'Byrne indicated that Kent would need follow up examinations, despite the injury, because he already wore glasses to correct his vision. Moreover, she also testified that she would make such a recommendation for follow up examinations for persons without Kent's vision problems. Thus, based on this evidence, we find no error in the trial court failing to award Kent additional damages for future medical treatment.
As for damages for loss of vocational opportunities, it has been held that earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned, despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury has deprived the plaintiff of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.
In this case, however, the evidence is not as compelling. Dr. O'Byrne acknowledged that in the beginning, she restricted Kent from playing baseball to avoid the risk of rebleeding caused by excessive exercise, but she allowed Kent to resume playing baseball six months following his injury. She observed, however, that the loss of his superior peripheral vision would make it difficult for him to play. She also acknowledged that she knew nothing of Kent's pre-injury athletic skills. As she stated, "[e]vidently, he wanted to be a professional baseball player. I guess he was good. I don't know. I know he told me he can't play anymore." She stated that Kent would not be able to be a professional baseball player or pilot, as those were the things he had said he wanted to be. She also generally opined "it will impair him in certain jobs or activities or things that he may want to do," but acknowledged that a vocational expert would be needed to address how his vision loss might affect other vocations Kent would be interested in pursuing. Dr. O'Byrne assessed Kent with a 12.5 percent total person impairment rating in accordance with the PDR for Ophthalmology.
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Finally, as for the amount of the general damages awarded, we likewise do not find any abuse of the trial court's discretion. It is evident that while Kent continued and will continue to have follow up examinations of his left eye, most of the active treatment of his injury occurred in the first four months following his injury, excepting a slight flare up of his traumatic iritis in January 2007, for which he was again given a limited prescription of steroid eye medication. All of the physical pain Kent suffered from the injury likewise resolved within those first four months. Dr. O'Byrne testified that Kent's vision is correctable to 20/20 in both eyes wearing glasses or contacts, even though he does have a permanent fifty percent loss of his superior peripheral vision in his left eye. Although Kent testified that he experienced some depression as a result of the injury, no medical evidence was offered to support this statement. Moreover, the school board did offer some medical records to establish that any depression Kent may have suffered post-injury was unrelated to his injury. Thus, considering the totality of the evidence presented, we cannot say that the trial court's award of $20,000.00 in general damages, although somewhat low, constitutes an abuse of discretion.
Accordingly, consistent with the record before us and our determinations herein, we amend the judgment of the trial court to hold the Tangipahoa Parish School Board sixty percent liable for the eye injury suffered by Kent Kinchen. Accordingly, the school board is liable for $12,000 in general damages, $8,597.60 in special damages, and $600.00 for Barry Kinchen's loss of consortium claim. In all other respects, the judgment of the trial court is affirmed. We assess all costs of this appeal to Barry and Kent Kinchen.
