896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

H

Court of Appeal of Louis iana.

Third Circui t .

Julie GUIDRY. et al .

v.

COREGIS INSURANCE COMPANY, et al .

No. 04-325.

Dec. 29, 2004.

Background: Widow for herself and on behalf of her children brought legal

malpractice action against attorneys for allowing cause of action for wrongful

death of her husband, who was electrocuted while repairing a sign. to prescribe.

Following a jury verdict, the Fourteenth .1u-dicial District Court, Parish of

Calcasieu. No. 98-4848,( Michael Canada \ . J.. granted plaintiffs a judgment not-

withstanding the verdict (JNOV) reallocating fault among the potential defendants

in underlying case. All parties appealed.

Holdings: The Court of Appeal, Woodard, J.. held that:

(1 ) whether aerial ladder husband was using was unreasonably dangerous in

design because bucket was not insulated, and whether lack of insulation was a

proximate cause of husband's death, were issues for the jury:

0 whether owner of truck stop that requested signs be repaired breached its duty

to not expose widow's husband to unreasonable risks of harm, and whether

husband would not have died but for such breach, were issues for the jury:

(.3.4 whether sign company who had employed widow's husband breached its duty

under the Workers' Compensation Law, and whether husband would not have died

but for such breach, were issues for the jury:

(4.) evidence was sufficient to support jury's allocation of fault to parties who would

have been the defendants in the underlying action:

(.5) child who was not a biological child of widow's husband could not recover

wrongful death and survivor benefits:

(o) evidence was sufficient to support award of $350.000 for husband's past

wages and loss of earning capacity: and t7f award of $10,000 for husband's pre-

death pain and suffering was so low in proportion to the injury that it shocked the

conscience, and award of $75,000 was the

lowest reasonable amount.

Affirmed in part as amended, reversed in part. and rendered.

Woodard. J.. concurred in part and assigned reasons.

West I leadnotes

J l Attorney and Client 45 C-----'129(4)

45 Attorney and Client

45111 Duties and Liabilities of Attorney to Client 45k19 Actions for Negligence or

Wrongful Acts 45k129(4) k. Damages and Costs. \ 10,4 Ciit:4

Aside from distress resulting from the legal malpractice, plaintiffs' damages in a

legal malpractice suit are determined by the damages, if any. they would have re-

ceived had they prevailed in the underlying lawsuit.

1_;_j Attorney and Client 45 €;=.105.5

45 Attorney and Client

;Lill! Duties and Liabilities of Attorney to Client 151:105.5 k. Elements of

Malpractice or Negligence Action in General. \lost Cited

A legal malpractice plaintiff must establish a prima facie case by showing that

she and the attorney had an attorney-client relationship and that her attorney was

negligent.

1.31 Attorney and Client 45 C---)129(2)

45 Attorney and Client

45111 Duties and Liabilities of Attorney to Client Actions for Negligence or

Wrongful Acts 45k129(2) k. Pleading and Evidence. Moss. Cited Cases

In a legal malpractice action. after the plaintiff establishes a prima facie case

by showing that she and the attorney had an underlying attorney-client

relationship and that the attorney was negligent, the burden of production

896 So.2d 164,2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

shifts to the defendant attorney, charging him to provide evidence sufficient to prove the

plaintiff would not have prevailed on the underlying claim.

t_41 Attorney and Client 45 €---)129(3)

45 Attorney and Client

45111 Duties and Liabilities of Attorney to Client <15k129 Actions for Negligence

or Wrongful Acts 45k..20 .3) k. Trial and Judgment. Most Cited Cases

Products Liability 313A 1:='256

313A Products Liability

"3..13,A111 Particular Products

313Ak256 k. Ladders and Scaffolds. Most Cited

caws

(Formerly 313Ak94)

Products Liability 313A 0=7400

.3133 Products Liability

313 AI V Actions

313AIV( D) Questions of Law or Fact

313AHOO k. In General. Most Cited Cases

(Formerly 3 I 3Ak94)

Whether aerial ladder was unreasonably dangerous, whether ladder was

employed in a reasonably anticipated use, and whether lack of fiberglass insulation

was a proximate cause of death, were issues for the jury. in widow's legal

malpractice action in which jury was required to allocate fault among potential

defendants brought against attorneys for allowing cause of action for wrongful death

of her husband, who was electrocuted while repairing a sign. to prescribe: witness

testified that if bucket husband was in had been insulated with fiberglass husband

would have only suffered a slight shock. witnesses testified that aerial ladder was

commonly used in sign industry, and there was no evidence that widow's husband

was operating the ladder in an inappropriate manner. 1..SA-R.S. 0:2800,56(2).

A duty-risk analysis is used to determine whether a party is liable for its negligence

given the particular facts of the case.

thi Negligence 272 €202

171 Negligence

772.1 In General

k. Elements in General. Mo ,q Cited

cases

Duty-risk analysis used to determine whether a party is liable for its negligence given

the particular facts of the case consists of four elements: (I) whether the defendant owed

the plaintiff a duty of care: (2) and if so. whether that duty encompassed the particular

risk of harm the plaintiff suffered: (3) whether the defendant breached that duty: (4) and if

so, whether the breach was a cause-in-fact of the plaintiff's injuries.

0, Negligence 272 C=>1010

272 Negligence

2:12xyll Premises Liability

272X Vt1(.13.) Necessity and Existence of Duty

2771,1010 k. In General. Most CitQd Caws

Negligence 272 €= )1032

27? Negligence

272X VII Premises Liability

272X VlI(C.) Standard of Care

77.210.032 k. Reasonable or Ordinary Care in

General. Most Cited Cases

Negligence 272 C---'1033

277 Negligence

272X VII Premises Liability

272XV11(.C) Standard of Care

272k k. Reasonably Safe or Unreasonably

Dangerous Conditions. Most Cited Cases

Generally. the owner or operator of a facility has the duty of exercising reasonable

care for the safety of persons on his premises and the duty of not exposing such

persons to unreasonable risks of injury or harm.896 So.2d 164. 2004-325 (La.App. 3

Cir. 12,'29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

0.3 Electricity 145 C'14(1)

145 Electricity

145k12 Injuries Incident to Production or Use

145k14 Care Required in General

145k14W k. In General. Most Cited aces

Owner of truck stop that requested its signs he repaired had a duty to not

expose sign company employee to unreasonable risks of harm.

L1 Attorney and Client 45 €----'129(3)

45 Attorney and Client

45 .414 Duties and Liabilities of Attorney to Client 45k129 Actions for

Negligence or Wrongful Acts 451,1290) k. Trial and Judgment. 1 \1oi Cited

Cases

Electricity 145 re=:;'19(9)

145 Electricity

145k12 Injuries Incident to Production or Use

145k 19 Actions

145k190 ) Questions for Jury

45k1919 k. Prevention of Contact Be-

tween Different Wires or Conductors. Most cited Caws

Whether owner of truck stop that requested its signs be repaired breached its

duty to not expose widow's husband, who worked for sign company, to

unreasonable risks of harm, and whether signs' proximity to power lines was

cause of husband's death, were issues for the .jury. in widow's legal malpractice

action against attorneys who allowed cause of action for wrongful death of her

husband. who was electrocuted while repairing signs. to prescribe. wherein jury

was required to allocate fault among potential defendants in underlying suit:

there was evidence that placement of one of the signs on pole containing three

signs violated Occupational Safety and Health Administration (OSHA) rule

requiring a ten-foot clearance from overhead power lines, and that it was

impossible for widow's husband to work on such sign without violating ten foot

rule.

110( Negligence 272 0'211

37;1, Negligence

27211 Necessity and Existence of Duty

'7'k211 k. Public Policy Concerns. \ lost( i ted

The scope of the duty inquiry on a negligence claim is ultimately a question of

policy as to whether the particular risk falls within the scope of the duty.

1111 Workers' Compensation 413 €----'2095

413 Workers' Compensation

413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses

:413 NNI,A) Between Employer and Employee 413X Xt /1)1 Exclusiveness

of Remedies Afforded by Acts

131.2095 k. Failure to Install or Maintain Safety Devices. Most Cited Caws

Workers' Compensation Law requires employers to do everything reasonably

necessary to protect the life. health, safety. and welfare of its employees,

including providing proper safety devices and safeguards to render the

employment safe, considering the normal hazards of such employment. 1,SA-IU>,

23: H.

J12[ Workers' Compensation 413 €—'2095

4 I Workers' Compensation

413X X Effect of Act on Other Statutory or Common-

Law Rights of Action and Defenses

.113 X X(A) Between Employer and Employee

413 XX(A)) Exclusiveness of Remedies At=

forded by Acts

4131.2095 k. Failure to Install or Maintain

Safety Devices. Most Cited Cases

Duty under the Workers' Compensation Law of sign repair company to protect

the life and safety of its employee encompassed the particular risk of injury by a

power

line: company knew that power lines posed a normal hazard to its employees, and

it was a frequent topic of conversation among its employees. 1..SA-R.S.

1131 Attorney and Client 45 c—'129(3)

45 Attorney and Client

4511 .1 Duties and Liabilit ies of Attorney to Client 45k129 Actions for

Negligence or Wrongful Acts 45k129(3) k. Trial and Judgment. Xlo:4 Citc,1

Cases

96 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

Electricity 145 C19(6.1)

145 Electricity

145k12. Injuries Incident to Production or Use

145k 19 Actions

145k190_) Questions for Jury

145J:190.1) k. In General. 11i1ost Cited

Cases

Whether sign company that employed widow's husband breached its duty under the

Workers' Compensation Law to do everything reasonably necessary to protect life and

safety of husband. and whether but for company's breach of such duty husband would not

have been clec-trocuted. were issues for the jury, in widow's legal malpractice action

against attorneys who allowed cause of action for wrongful death of her husband. who

was electrocuted while repairing signs. to prescribe. wherein jury was required to

allocate fault among potential defendants in underlying suit: witness testified that if bucket

on aerial ladder supplied by company that husband was in had been insulated husband

would have

only suffered a slight shock. and there was evidence that company failed to place

proper significance on adherence to Occupational Safety and Health Administration's

(OSHA) rule requiring persons to maintain a ten-foot clearance from overhead power

lines. 1.SA-R..S. 23:13.

J14[ Negligence 272 (C'371

212 Negligence

272;011 Proximate Cause

272k371 k. Necessity of Causation. I\ ited Caws

Negligence 272 €379

2.72. Negligence

272N111 Proximate Cause

272k374 Requisites. Definitions and Distinctions 2721079 k. "But-For" Causation:

Act Without Which Event Would Not Have Occurred. Nio,t i. ited Cases

Cause-in-fact is one of the essential elements of a plaintiffs personal injury claim, and

it

is usually determined by using a "but for" test: if the plaintiff would not have been injured

"but for" the defendant's conduct, the cause-in-fact component is met.115[ Negligence

272 C-1421

272 Negligence

272X111 Proximate Cause

27;1420 Concurrent Causes

2721.421 k. In General. Most Cited Cases

When there is more than one action that, allegedly. precipitated an accident. the "substantial

factor test." rather than the "but for" test. is used to establish cause-in-

fact.

11(1 Electricity 145 e---19(5)

145 Electricity

1-15k12 Injuries Incident to Production or Use

-15k )9 Actions

1.4509(.5) k. Weight and Sufficiency of Evi-

dence. Mosicit..sit Cases

Evidence was sufficient to establish, in widow's legal malpractice action against

attorneys for allowing cause of action for wrongful death of husband to prescribe, that

actions by owner of truck stop, breach by sign company that employed husband of its

duty under the Workers' Compensation Law, husband's actions, and actions by aerial

ladder's manufacturer, were all substantial factors in husband's electrocution: witness

testified that if bucket on aerial ladder had been insulated husband would have only

suffered a slight shock, there was evidence that company failed to place proper

significance on adherence to Occupational Safety and Health Administration's (OSHA)

rule requiring persons to maintain a ten-foot clearance from overhead power lines,

manager of truck stop asked owner to work on pole having sign that violated OSI- IA rule,

and husband failed to use a safety harness or seat belt. or request that electric company

shield lines near pole to make them safe. I

11-[ Appeal and Error 30 0'999(3)

30 Appeal and Error

30\V1 Review

30XVI(1) Questions of Fact. Verdicts, and Find-

ings

30XV11,112 Verdicts

30k999 Conclusiveness in General

30k()990 ) k. Questions of Fraud or Neg-

ligence. Most Cited. Cases

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))As with other factual

determinations, the trier of fact is vested with much discretion in its allocation of

fault. and therefore an appellate court should only disturb the trier of fact's

allocation of fault when it is clearly wrong or manifestly erroneous.

118 [ Appeal and Error 30 €---)999(3)

30 Appeal and Error

3p:\ y I Review

30XVI(1) Questions of Fact. Verdicts, and Find-

ings

30XVI(I)2 Verdicts

30k999 Conclusiveness in General

30k999(3) k. Questions of Fraud or Neg-

ligence. Most Cited Cases

In testing for manifest error a jury's allocation of fault when more that one action

allegedly precipitated an accident, Court of Appeal looks to the following factors :

(1) whether the conduct resulted from inadvertence or involved an awareness of

the danger: (2) how great a risk was created by the conduct; (3) the significance of

what was sought by the conduct; (4) the capacities of the actor. whether superior

or inferior; and (5) any extenuating circumstances which might require the actor to

proceed in haste, without proper thought.

1191 Appeal and Error 30 €=.999(3)

30 Appeal and Error

1()NV1 Review

0X V1(1) Questions of Fact. Verdicts, and Find-

ings

30XVI(1)2 Verdicts

30099 Conclusiveness in General

30k990(3) k. Questions of Fraud or Neg-

ligence. Most Cited Cases

As evidenced by concepts such as last clear chance. the relationship between

the fault/negligent conduct and the harm to the plaintiff are considerations in

determining the relative fault of the parties, when Court of Appeal tests for

manifest error a jury's allocation of fault when more that one action allegedly

precipitated an accident.

J20[ Electricity 145 €=17

1215 Electricity

145k 17 k. Companies and Persons Liable. Most Cited Caies

Evidence was sufficient to support. in widow's legal malpractice action against

attorneys for allowing cause of action for wrongful death of husband to prescribe,

allocation of 20% of fault for electrocution of husband to owner of truck stop whose

sign widow's husband was repairing. 45% to sign company that employed

husband, 30% to husband's actions, and five percent to aerial ladder's

manufacturer: there was evidence that husband was an experienced sign worker

and was aware of danger posed by overhead power lines, that Occupational Safety

and Health Administration (OSHA) held company responsible for violation of ten-

foot clearance from overhead line rule, that company rather than manufacturer was

in best position to determine whether it should have used an aerial ladder that had

an insulated bucket, and that owner of truck stop placed sign close to power line in

violation of OSHA rule. I ,SA-R.S.

J21[ Judgment 228 €='199(3.5)

228 Judgment

228\il On Trial of Issues

228 VI(A) Rendition. Form. and Requisites in

General

228k109 Notwithstanding Verdict

2281.199(3.5) . k. Propriety of Judgment in

General. Most Cited Cases

Judgment notwithstanding the verdict (JNOV) is warranted, only, when the

facts and inferences point so strongly and overwhelmingly in favor of one party

that the trial court believes that reasonable persons could not arrive at a contrary

verdict.

1221 Judgment 228199(3.6)

228 Judgment

_'__'8VI On Trial of Issues

228V1(A) Rendition, Form, and Requisites in

General

2281.199 Notwithstanding Verdict

224100( 3.6) k. Where Evidence Is Con-

flicting or Where Different Inferences May Be Reasona-

bly Drawn Therefrom. Mo !,1(A .gtcases

A trial court may not grant a judgment notwithstanding the verdict (JNOV) if

there is contradictory evidence

896 So.2d 164. 2004-325 (La.App. 3 Cir. 12,29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

which is of such quality and weight that reasonable and fair-minded persons in the

exercise of impartial judgment might reach different conclusions.

1231 Judgment 228 €='199(3.2)

228 Judgment

228V1 On Trial of Issues

2.2.8 V1(1) Rendition. Form, and Requisites in

General

2281:I99 Notwithstanding Verdict

128k199(3.2) k. Evidence and Inferences

That May Be Considered or Drawn. Most Cited Cacs

Judgment 228 €---'199(3.3)

228. Judgment

228V1 On Trial of Issues

228V1(A) Rendition. Form, and Requisites in

General

218k199 Notwithstanding Verdict

2281.1990.3) k. Credibility of Witnesses

and Weight of Evidence. Most Cited Ca ,,cs

The trial court should not evaluate witnesses' credibility in deciding whether to grant

a judgment notwithstanding the verdict (JNOV), and it must resolve all inferences or

factual questions in favor of the non-moving party.

1241 Appeal and Error 30 €=1463

30 Appeal and Error

30 \ VI Review

30 X VILA Scope, Standards, and Extent, in Gen-

era l

30k862 Extent of Review Dependent on Nature

of Decision Appealed from

$0kS63 k. In General. Most. Cited Case,.

Court of Appeal reviews a trial court's grant of judgment notwithstanding the

verdict (JNOV) by using the same criterion that governs its decision.

1251 Appeal and Error 30 C'863

30 Appeal and Error

30XV1 Review

l

30k802 Extent of Review Dependent on Nature

of Decision Appealed from

301:803 k. In General. Most Cited Cases

In an appeal of a judgment notwithstanding the verdict (JNOV), if reasonable persons

might have reached the same verdict as the jury. Court of Appeal should reinstate its

verdict.

1261 Evidence 157 C----)555.7

15.7 Evidence

157 \ 11 Opinion Evidence

57X11(I)) Examination of Experts

I 57k555 Basis of Opinion

157055,7 k. Due Care and Proper Conduct.

Most Cited Cases

Trial court did not abuse its discretion and violate the /),./ribcrir /.-.)rw tests, in

widow's legal malpractice action against attorneys for allowing cause of action for

wrongful death of husband, who was electrocuted while repairing signs. to prescribe,

by allowing widow's mechanical engineering and accident reconstruction expert to

testify regarding his alternative design to include an electric brake on aerial ladder;

brakes had been incorporated in similar devices, namely cranes, manufacturer's

expert admitted that adding a brake was a feasible design, and factual determination

of whether the primary purpose of ladder, to carry humans rather than cargo. caused

adverse effect of a brake in a ladder to outweigh its utility was properly submitted to

the jury. 1.S A-C.I .

11211 Evidence 157 €,.....2519

157 Evidence

157.\1I Opinion Evidence

1.57 i) Subjects of Expert Testimony

157k519 k. Nature, Condition, and Relation of

Objects. Most .Cited Cries

Evidence 1571€555.7

.117 Evidence

157 \II Opinion Evidence

157X I li.D) Examination of Experts

1..5.2.1s5.55. Basis of Opinion

157055.7 k. Due Care and Proper Conduct.

Most Cited Cases

896 So.2d 164,2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

Evidence 157 e556

.157 Evidence

157X11 Opinion Evidence

157X1111)) Examination of Experts

157k556 k. References to Authorities on Sub-

ject. Most Cited Cases

Trial court did not abuse its discretion and violate the Dotibert/ /7.,,rei tests, in

widow's legal malpractice action against attorneys for allowing cause of action for

wrongful death of husband, who was electrocuted while repair ing signs, to

prescribe, by permitting widow's expert, a physicist and professional engineer with

a specialty in human vision, to testify that a person viewing horizontal power lines

against a clear sky could not accurately perceive his distance from them because

of a principle called stereopsis; expert offered an article that had been published

on the subject showing that the theory had been tested and discussed the known

potential rates of error, and testimony was relevant, even if it assumed widow's

husband was looking toward the power lines just before he struck them in the

absence of testimony establishing same, as testimony shed light on a factual

issue. I SA-(.I;. art. 702.

1281 Appeal and Error 30 €---'984(1)

‘..t) Appeal and Error

30XV1 Review

30N.Y1.(11) Discretion of Lower Court

30k984 Costs and Allowances

30k084(.I) k. In General. Most. Cited Cases

Costs 102 €12

102 Costs

1021 Nature, Grounds, and Extent of Right in General

102k1 I Discretion of Court

102k 12 k. In General. Most Cited Cases

The trial court has broad discretion to award and assess costs, and Court of

Appeal will not disturb its ruling absent an abuse of discretion.

1291. Costs 102 €=3,187

102 Costs

102V11 Amount, Rate, and Items

1 Qzjiit3 183 Witnesses' Fees

102k187 k. Experts. Most Cited Cases

The degree to which the expert's opinion aided the court in its decision is one of

the factors to consider when assessing costs of an expert witness's fee.

1301 Attorney and Client 45 C='129(4)

45 Attorney and Client

15111 Duties and Liabilit ies of Attorney to Client 451.1:.',0 Actions for

Negligence or Wrongful Acts 45k129(0 k. Damages and Costs. Mosi ( Cases

Trial court did not abuse its discretion, in widow's legal malpractice action

against attorneys for allowing cause of action for wrongful death of husband.

who was electrocuted while repairing signs. to prescribe. by award ing widow

fees she incurred for testimony by mechanical / engineering and accident

reconstruction expert and by i‘ engineer with a specialty in human vision,

since experts' testimony was admissible.

J311 Damages 115 C---)60

.111, Damages

I 15111 Grounds and Subjects of Compensatory Dam-

ages

I I 5111(.13) Aggravation, Mitigation, and Reduction

of Loss

k. Benefits Incident to Injury. Most

Cited (. ases

If a plaintiff receives benefits from a source independent of the tortfeasor, the

benefits inure to the plaintiff, not to the tortfeasor, and if the independent source

does not intervene to recoup the benefits it already paid. the plaintiff may recover

the same amount of the benefits from the tortfeasor.

1321 Workers' Compensation 413 €---'2243

413 Workers' Compensation

.413 XX Effect of Act on Other Statutory or Common-Law Rights of Action and

Defenses

413X \K.') Action Against Third Persons in General for Employee's Injury or Death

413 X( .0 t6 Amount and Items of Recovery 1131;2243 k. Action by

Employee, Dependents, or Personal Representative. Most Cited Cases

96 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

Under collateral source rule, widow, in her legal malpractice action against attorneys

for allowing cause of action for wrongful death of husband to prescribe, could recover

medical and funeral expenses which husband's workers' compensation carrier had

already paid; though attorneys were not the tortfeasors in the underlying suit, because

the two liable tortfeasors in the underlying action could not under the collateral source

rule benefit from carrier's payment, neither could attorneys.

1.33 Attorney and Client 454112

45 Attorney and Client

45111 Duties and Liabilities of Attorney to Client 45k112 k. Conduct of

Litigation. Most ( itcd Cases

Death 117 €----)31(8)

117 Death

(17111 Actions for Causing Death

I I '7111(A) Right of Action and Defenses

1171(31 Persons Entitled to Sue

117101(8) k. Child or Grandchild. Most

Cited Caws

Child who was not a biological child of widow's electrocuted husband could not

recover wrongful death and survivor benefits, in widow's legal malpractice action

brought on behalf of herself and her children against attorneys for allowing cause of

action for wrongful death of husband to prescribe, despite husband's signature on

child's birth certificate and his execution of an Act of Acknowledgment of Paternity;

Acknowledgment was a nullity when both the child and the widow admitted husband

had no biological relationship to the child. 1.S.A-C .0arts.

71 5.1.231s2

J34[ Attorney and Client 45 €---2129(4)

45 Attorney and Client

45)11 Duties and Liabilities of Attorney to Client 5k12,9 Actions for Negligence or

Wrongful Acts 45k 1.291 k. Damages and Costs. Mos

Cases

Death 117 €9.5(1)

.117 Death

117111 Actions for Causing Death

117111(11) Damages or Compensation

1.171.94 Measure and Amount Awarded

117k95 In General

1171.9SW k. In General. N10 ,4 Cited

,

Cases

Death 117 C--195(2)

117 Death

1 171.11 Actions for Causing Death

117111(11) Damages or Compensation

117104 Measure and Amount Awarded

117k95 In General

11705(2) k. Prospective Earnings and

Accumulations of Deceased. Most '1ted Cases

Evidence was sufficient to establish award of $350.000 for past wages and loss of

earning capacity of husband, who was electrocuted while repairing signs, upon

widow's wrongful death cause of action, although figure did not match that calculated

by experts, since jury was permitted to substitute common sense and judgment for

that of an expert witness when such substitution appeared warranted on the record as

a whole; thus, award of such amount was proper in widow's legal malpractice action

against attorneys for allowing her wrongful death claim to prescribe.

Lit Evidence 157 €=.570

151 Evidence

15.711 Opinion Evidence

57X110. Effect of Opinion Evidence

157k50.9 Testimony of Experts

1511.570 k. In General. Moq Cited Case,,

Trial 388 €—'140(1)

38X Trial

388VI'Fakini.; Case or Question from Jury

:,88V1LA) Questions of Law or of Fact in General

388kI40 Credibility of Witnesses

388k140t.1.t k. In General. Most (lied Case5

Credibility determinations are for the trier of fact, even as to the evaluation of expert

witness testimony.

1361 Evidence 157 €.---'570

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

157 Evidence

157X11 Opinion Evidence

157)X11(I") Effect of Opinion Evidence

157k56> Testimony of Experts

j.57)070 k. In General. Most Cited Caves

A fact-finder may accept or reject the opinion expressed by an expert, in whole or in

part.

1371 Appeal and Error 30 €—)1004(5)

30 Appeal and Error

30XV1 Review

30X V1(1) Questions of Fact, Verdicts, and Find-

ings

30NVI(1)? Verdicts

30k1004 Amount of Recovery

301.100-1(5) k. Mistake. Passion or Preju-

dice; Shocking Conscience or Sense of Justice. Most

Cited Cases

Damages 115

1 I 5 Damages

115V1 Measure of Damages

I 15 VI(A) Injuries to the Person

115k96 k. Discretion as to Amount of Damages.

Most Cited Cases

Damages 115 €:;'104

1. I 5 Damages

H 5V I Measure of Damages

115V1t13) Injuries to Property

115k 104 k. Discretion as to Amount of Dam-

ages. Most Cited Cases

Damages 115 €=7119

115 Damages

I I 5V1 Measure of Damages

11.5 VIR') Breach of Contract

1 1.5k119 k. Discretion as to Amount of Dam-

ages. Most Cited Cases

A jury has vast discretion in assessing damages. and Court of Appeal may find that it

abused this discretion. only, if its award is so low in proportion to the injury that it shocks

Court's conscience.

J38i. Attorney and Client 45 Ce•—'129(4)

4.5. Attorney and Client

-15111 Duties and Liabilities of Attorney to Client 45k .1_2) Actions for Negligence or

Wrongful Acts 45k1 29(4) k. Damages and Costs. Most c:Jted clit.! !es

Death 117 e---)98

117 Death

.44.,741.1 Actions for Causing Death

I 1.710()1) Damages or Compensation

117.k94 Measure and Amount Awarded

k. Inadequate Damages. Mos'

Award of $10.000 for husband's pre-death pain and suffering was so low in

proportion to the injury that it shocked the conscience, and award of $75,000 was

the lowest reasonable amount that could be awarded for wrongful death of husband,

who was electrocuted while repairing signs. in view of evidence that husband was

conscious for some amount of time after contacting overhead power lines while

working on aerial ladder and being thrown to the ground with smoke coming off his

shirt: thus, award of $75,000 was proper in widow's legal malpractice action against

attorneys for allowing her wrongful death claim to prescribe.

1391 Damages 115 €—'140.7

I_I5 Damages

1 ISVII Amount Awarded

l5V1 Mental Suffering and Emotional Dis-

tress

115k140.7 k. Particular Cases. Mos' Cited

Cases

(Formerly 115k140.5)

Award of $30,000.00 for mental anguish arising from attorneys' malpractice was

not abusively low, in widow's legal malpractice action against attorneys for allowing

cause of action for wrongful death of husband, who was electrocuted while repairing

signs, to prescribe.

*170 Lam Lane Roy, Preis, Kraft & Roy, Lafayette. Louisiana, for

Defendant/Appellant. James Daniels. Ringuet. Daniels & Collier.

96 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

Gus A. Fritchie, Irwin Fritchie Urquhart & Moore. New Orleans, Louisiana, for

Defendant/Appellant. Lawrence D. Wiedemann. Wiedemann & Wiedemann.

Gregory Paul Allen Marceam, Marceaux Law Firm., Bilk F. Loftin, Jr., Lake

Charles, Louisiana. for Plain-tiff/Appellant. Julie Guidry:.

James Huey Gibson, Allen & Gooch, Lafayette, Louisiana, for

Defendant/Appellant, Coregis Ins. Co.

Cou r t composed o f Ch ie f Judge

1 -111BODFAUX. 1111.1.11: COLONMARO WOODARD.

and OSWALD A. IM'Cl.i1R, Judges.

**l WOODARD, Judge.

Both the Plaintiffs and Defendants appeal the trial court's judgment in this legal

malpractice suit. We reverse the damages awarded to Randi Guidry because she

is not a proper party to recover wrongful death or survival damages. We vacate the

trial court's JNOV. reinstate the jury's verdict, amend its judgment to increase the

quantum of damages for pain and suffering, and render.

This appeal arises from Ms. Julie Guidry's legal malpractice claim against two

attorneys, Mr. James L. Daniels and Mr. Lawrence D. Wiedemann, for allowing her

potential cause of action for the wrongful death of her husband, Melvin Guidry, to

prescribe. The underlying action arose when her husband died after being electro-

cuted in the course and scope of his employment as a billboard and sign

repairman for Signko, Inc. (Signko). On June 23, 1997, Signko sent him to the

Lucky Longhorn Truckstop (Lucky) to repair a "Chevron" sign. After he arrived,

Lucky's manager. Mr. James William Hayes. asked him to work on some of the

other signs. as well. To access them, Melvin utilized a Sponco SL-55 aerial lad-

der. a ladder attached to a truck that has a bucket at the end to hold the operator.

While working on the signs, he contacted with some overhead power lines,

electrocuting him and throwing him to the ground. He died from the injuries a few

hours after the accident.

Julie retained Mr. Daniels to pursue her claims for his death. Daniels referred

her case to Mr. Wiedemann. retaining an interest in any potential recovery.

However, neither attorney filed her suit within one year of Melvin's death, allowing

her claim to prescribe. Consequently, she

tiled a legal malpractice action against the two attorneys. on her own behalf and

on behalf of her two daughters, both minors at the time she filed suit. She alleged

that the attorneys' negligence prevented her from recovering against several

defendants who shared responsibility for her husband's death. She also prayed for

damages associated with the legal malpractice.

*171 Lu Aside from distress resulting from the legal malpractice. itself, the

plaintiffs' damages in a legal malpractice suit are determined by the damages, if

any, they **2 would have received had they prevailed in the under-

lying lawsuit.'Accordingly, in order to determine

whether the attorneys' malpractice caused her and her daughters any damages, the

jury had to determine whether and how much they would have recovered in the

underlying suit"- Essentially. the jury in the legal malpractice suit had to "engage in a

pretend exercise of measuring damages based on events that never in reality

occurred or can occur," I- - because the malpractice foreclosed their opportunity to

pursue their underlying claims against the actual persons allegedly responsible for

Melvin's death.

I NI. Jeukins r. Sr. hre• lirc ( •

422 So.2d 1109 (I.a.1982).

FN2. Id.

SHIllit r. Shift!, .0(10 4il 1101//11

95-38 CI .a.6l25/96). 676 So.2d 543. 551 n. 9,

FN4„S'inidt, 676 So.2d 541

The attorneys asserted that they would not have recovered any damages in

the underlying suit because Melvin and his employer were solely at fault for the

accident: any damage awards would have been reduced by his

own comparative negligence.'Additionally, because the

Louisiana Workers' Compensation Act is the exclusive remedy for any potential

claims against Melvin's employer, Signko, the Plaintiffs could not have recovered the

damages associated with Signko's fault in the underlying wrongful death action.

Rather, the Office of Workers' Compensation has jurisdiction over the Plaintiffs'

potential claim against Signko.' Furthermore, in the instant case, the Plaintiffs

reached a settlement with Signko under the workers' compensation laws while their

suit against the two attorneys was pending in the trial court.

FIN15. See La.Civ.C'ode art. 2R3(A).

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

l'No. See La.R.S. 23:1W2.

Notwithstanding the Plaintiffs' inability to recover from Signko in their

underlying wrongful death action, Louisiana's comparative fault law would have

required a jury in such an action to consider Signko's fault.'

if a jury had allocated 100% of the fault to Melvin and/or to his employer, the

Plaintiffs' ultimate recovery would have been zero. Therefbre. the jury had to

assess the fault **3 of Melvin and his employer, as well as the fault of any potential

defendants in the underlying case.

Sponco Manufacturing

Kojis & Sons. Inc.

Enter:4y

Signko, Inc.

Melvin Guidry..1r.

Lucky Longhorn Truck Stop

The trial court granted Plaintiffs a Judgment Notwithstanding the Verdict

(JNOV), reallocating Signko's fault percentage to Sponco, resulting in a 50% fault

allocation to it and no fault to Signko.

The jury assessed Julie's damages in the underlying lawsuit at $750,000.00, her

daughter, Randi's damages at $70,000.00, and her daughter. Mary's damages at

$250,000.00. Additionally, it found that the Plaintiffs were entitled to $10,000.00

*172 far Melvin's pre-death pain and suffering and $30,000.00 for their own mental

distress associated with the Defendants' legal malpractice.

Finally, the jury found that the two attorneys. Mr. Daniels and Mr.

Wiedemann, were equally responsible and assessed each with 50% of the fault.

Both the Plaintiffs and the Defendants appeal from the trial court's judgment.

The Defendants allege multiple assignments of error. Concerning the fault

allocation, they argue that the jury erred in allocating any fault to Lucky Longhorn

or to Sponco and that it should have allocated all or substantially more fault to

Melvin. They also assert that the trial court erred in granting the JNOV.

114.

Additionally, the Defendants urge that the trial court committed evidentiary

errors in admitting certain testimony that Plaintiffs' expert witnesses, Stephen **4

Kill-

1-N7. See La.Civ.Code art. 2323.

The Plaintiffs maintain that the potential defendants in the underlying case were

Sponco Manufactur-ing/Phoenix Sales (Sponco), the ladder's manufacturer: Kojis &

Sons, the company that sold the ladder to Signko: Lucky Longhorn Truck Stop. the

accident site: and En-tergy, the custodian of the power lines.

The jury allocated fault as follows:

540

0 %

0%

4.5"/0

30%

20%

ingsworth and James Sobek, rendered; thus, they should not have to pay these two

experts' witness fees.

They also claim the trial court erred in allowing Plaintiffs to recover medical

and

funeral expenses and in permitting Randi Guidry to recover any damages.

The Plaintiffs appeal the judgment. urging us to increase the amount of

damages awarded for loss of support. pre-death pain and suffering, and mental

distress resulting from the malpractice.

ELEMENTS OF LEGAL MALPRACTICE CLAIM Lin A legal malpractice plaintiff

must establish a prima facie case by showing that she and the attorney had an

attorney-client relationship and that her attorney was

negligent.'In the instant case, the two attorneys admit

these two elements, establishing the Plaintiffs' primajiicic case. Accordingly, the burden

of production shifts to the Defendant attorneys, charging them to provide evidence

sufficient to prove the Plaintiffs would not have prevailed

on the underlying claim.' The admittedly unnatural re-

sult is that the Defendant attorneys must advocate a position in extreme contrast to the

position they previously agreed to advocate on their client's behalf. However, the rule is

justified because we must infer that their negligence caused the Plaintiffs' some loss,

given the unlikelihood that they would have agreed to handle the claim unless it had

some merit.' `''' "Otherwise, there is an un-

896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

due burden on an aggrieved client. who can prove negligence and causation of

some damages, when he has been relegated to seeking relief by the only remedy

available after his attorney's negligence precluded relief by means of the original

claim." s

FN8../enkiffs. 422 So.2d 1109.

FN9.

EN10. Id.

FN I 1, Id. at I I 10.

STANDARD OF REVIEW

The Defendants' first two assignments of error involve liability determinations,

one based on the duty-risk analysis and the other based on **5 Louisiana

Products Liability law. These determinations involve questions of, both, law and

fact. The remaining alleged errors, which concern fault allocation, admissibility of

certain testimony that expert witnesses gave, and awards of damages and costs,

are all subject to the manifest error standard.'

FN 12. (. lenientrrey,_. 95- I I 1911.a. I 16 Q6),

666 Se] 2d ._ 607: Your, v. Ilariiimc Over\eas-

tolp„ . 623 So.2d 1257 (1.,t. I993 );

Shire, 03-680 (IAL 12 3;03). Md so,2d 536.

SPONCO'S FAULT

The Defendants assert that the jury erred in finding Sponco liable for Melvin's

*173 death. Again, they had the burden of proving that the Plaintiffs could not

have prevailed against Sponco.

Sponco is the manufacturer of the aerial ladder Melvin utilized when

working on Lucky's signs. The Louisiana Products Liability Act (LPLA)

establishes the exclusive theories for holding a manufacturer liable for

damages their products cause.'It requires that: 1) a

characteristic of the manufacturer's product renders it unreasonably dangerous; 2)

the unreasonably dangerous characteristic proximately caused the Plaintiffs

damages; and 3) the damages arose when employing the product in a reasonably

anticipated

use.' \ The LPLA enumerates limited means of demonstrating an unreasonably

dangerous characteristic. Namely, a plaintiff must prove the product had inadequate

warnings, failed to conform to the manufacturer's express warranties, or that the

dangerous characteristic is inherent in the product's design, construction, or

composition.'Thus, we turn first to a review of evidence concerning any

unreasonably dangerous characteristics.

I. N13. L A.It.S. 9:2800.52.

FN 14. I a.R.S. 9:2800.5-1(A).

I N15. 9:2800.54(B).

Inadequate Warnings

The Defendants presented evidence of adequate warnings. Specifically, Mr.

Harold Sader, Sponco's President, testified that the manuals delivered to every

customer, as well as the warning decals on the equipment. itself, admonish **6

operators that the equipment is not to be used within ten feet of energized power

lines. Mr. Brooks and Mr. Brady Kojis, a co-owner of Signko. verified his

testimony.

Failure to Cantor,,, to Express Warranties

Neither party presented evidence of any express warranties. Consequently.

there was no evidence of failure to conform to any.

Dangerous in Design

The LPLA requires several elements to show that a product is unreasonably

dangerous in design. First, it requires that an alternative design existed when the

manufacturer relinquished control of the product and that the alternative had the

capacity to prevent the plaintiffs damages.' "1" Additionally. it requires that "[Ole

likelihood that the product's design would cause the claimant's damage and the

gravity of that damage outweighed the burden on the manufacturer of adopting

such alternative design and the adverse effect, if any, of such alternative design

on the utility of the product."1":

1:T\116. La.R.S. 9:2801).56(1).

IN I 7. La.R.S. 0:2800.56(2).

Furthermore, once these requirements are met, the manufacturer can still

absolve itself of liability by showing that "it did not know and, in light of then-

existing reasonably available scientific and technological knowledge, could not

have known," either, of the dangerous

characteristic or of the alternative design.'Alterna-

tively, it can show that "in light of then-existin4 reasonably available scientific and

technological knowledge." the

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12'29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

alternative design was not feasible or economically prac-tical.

17N118. La.R.S. 9:2800.59(A)( ) & (A)(2). l'N19. La.R.S. 9;2800._`•9(A)(3).

The Defendants presented evidence that the ladder's design was not

unreasonably dangerous. Specifically, Sponco's President testified that three

manufacturers essentially dominated the manufacture of *174 these ladders and

that all had substantially the same design which had not changed in the last 20

years. The **7 Plaintiffs countered with three alternative designs, allegedly capable

of preventing Melvin's accident.

Mr. Stephen Killingsworth. Plaintiffs' expert witness in mechanical engineering

and accident reconstruction, first, proposed a design which included an electric

brake. While he admitted that he developed this alternative design only a couple

of weeks before trial, he asserted that similar devices, such as cranes, employed

an electric brake at the time of the SL-55 ladder's manufacture. Consequently, he

urges that his design simply applies mechanical engineering principles that did

exist at that time.

LA The Defendants refute his contention that his alternative design existed at

the time of manufacture, urging that the LPLA requires that the design exist for the

particular product in question: its existence for similar products is insufficient.

Furthermore, they point out that even accepting the trial court's characterization

that his design is not new but, rather, "an adaptation of an existing mode of

addressing good mechanical forces that was in existence at the time of 1991,"

cranes are sufficiently distinguishable from aerial ladders because cranes lift or

transport cargo rather than people. Mr. Killingsworth testified that some cranes

have a basket that can be put on them for people to use. However, he did not

deny that cranes primarily carry cargo while aerial ladders primarily carry people.

This is a crucial factor, absent in the design of cranes, that manufacturers must

consider when designing aerial ladders. Not only does it demonstrate the flaws in

Mr. Killingsworth's argument that his design for this particular ladder existed at the

time of manufacture, it is also of dire importance in the risk/utility analysis, as we

detail below.

Risk-Utilitl• ,4nult•sis

Mr. Killingsworth testified that the coast and drift on

the SL-55 made it unreasonably dangerous and that the proposed brake would

allow the operator to stop the ladder immediately. eliminating any coast or drift. He

described "coast" as "when you turn the power off it takes time for this electric

motor to wind down, which means when I flip the switch on it and I swing

[horizontally] this ladder over I can't stop that ladder immediately. It is going to

coast, coast to a stop." and "drift" as "the play that we've got in it [the gearing] so

that when this unit is finally **8 stopped, in other words, it is coasting and it stops,

when I have a mass on the end of it. that ladder can still drift over and move

because the mass on the end of it is still moving." The Defendants' experts gave

similar descriptions of coast and drift, although they explained that both occur

simultaneously rather than consecutively as Mr. Killingsworth intimated. Mr.

Killingsworth alleges that an electric brake would prevent coast and drill and.

instead, would produce an instantaneous stop.

The Defendants had a burden of proving that his design did not pass the risk-

utility test: namely, that its adverse effects outweighed the likelihood that the

product's actual design, which allowed coasting and drifting, would

have caused Melvin's electrocution:in other words.

that the risk, which an electric brake would create for aerial ladder operators. far

outweighed the risk that coasting or drifting of the ladder creates.

FN20. La.R.S. 92800.56(2).

Both Mr. Faddis, a mechanical engineering expert. and Mr. Sader testified that,

by *175 design, the ladder nts/ have coast and drift. Mr. Sader said that "the stop-

ping of a unit has to be cushioned in some fashion." Otherwise. "the operator out

there would probably be whipped around pretty severely." Mr. Faddis stated, Illy

design, anything that you start and stop, you have to build in some kind of

coasting by design .... it just simply makes sure that there are not any violent

motions put on an operator that is out at the end of the thing." Furthermore. Mr.

Killingsworth admitted that an immediate stop could make the bucket swing over.

Thus, by Mr. Killingsworth's own admission, the likelihood that "coasting and

drifting" would create an inability to avoid dangers, such as power lines, does not

outweigh the adverse effect of his design, which would place the operator in danger

in every instance he operated the ladder, as opposed to the current design, placing

the operator in danger only when its operation is coupled with being close to some

external dangerous condition.

C.) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

Accordingly, the Defendants presented sufficient evidence to prove that the

Plaintiff's would not have prevailed against Sponco on this particular issue.

Mr. Killingsworth proposed a second alternative design using proximity

warning devices. Electrical fields trigger alarms on such devices, and they existed

at the time of the ladder's manufacture. In fact, Sponco informed purchasers of

their existence and availability and left the decision up to them. However, both,

**9 Mr. Sader and Dr. John Darrell Morgan. an expert in electrical engineer ing

and accident reconstruction within the electrical engineering field, testified that

these devices were unreliable. Moreover, Dr. Morgan testified that because the

devices operate by using magnetic fields, any interference within the magnetic

field may distort the device's ability to detect the danger at the appropriate

proximity. Additionally, he testified that there are many factors which can interfere

with the magnetic field. Thus, such devices actually provided an added danger by

creating a false sense of security for the operator.

Accordingly, the Defendants proved that the absence of proximity warning

devices did not constitute a design defect.

Finally, the Plaintiffs presented an alternative design which insulated the

ladder's bucket with fiberglass. This design existed at the time of the ladder's

manufacture. In fact, Sponco manufactured another ladder at that lime which

incorporated the design. Sponco's 111 (insulated hydraulic) series of ladders had

insulated buckets. This proves that such a design was feasible and that Sponco

knew of it. Furthermore, testimony revealed that this design had the capacity to

prevent Melvin's accident. Specifically. Mr. Brooks testified that if the bucket were

insulated, Melvin would have suffered only a light shock, even if his body made

contact with the power lines. Furthermore, the Defendants presented no evidence

of adverse effects of insulation on the ladder's utility nor did they provide evidence

of any burden, other than higher costs, that Sponco would have incurred by

incorporating the design.

Accordingly, the jury could have found that the Defendants failed to carry

their burden of proving that the Plaintiffs would not have recovered against

Sponco on this design defect claim.

Dangerous in Construction or Composition

"illf, at the time the product left its manufacturer's

control, the product deviated in a material way from the manufacturer's

specifications or performance standards for the product or from otherwise identical

products manufactured by the *176 same manufacturer." it is unreasonably

dangerous in construction or composition.'

ItN2 I. 'ALIO>. 9:2800.55.

**10 Plaintiffs offered the testimony of Mr. Hayes, who stated when watching

Melvin work on the signs prior to the accident, he observed the ladder coast to be

three to four feet. Further, Mr. Kent Langley. a Signko employee, who retrieved

the ladder from the accident site, testified that he tested it and found it to be

working properly. However, he also said that while the normal coast and drift of

the ladder was one to two feet. it could he up to four feet. depending on how far

the ladder was extended. The Plaintiffs elicited testimony from Mr. Sader.

agreeing that four feet of coast would be excessive. even though Sponco has no

standards delineating the amount of coast considered acceptable.

Nonetheless, the detect in construction or composition must have existed at the

time the ladder left Sponco's control. Mr. Kent Johnson stated that he had done all

the maintenance on this particular ladder when Kojis 8,1. Sons owned it. He

serviced and inspected it on a weekly basis. When Signko bought it. he instructed

Kent Langley regarding general maintenance.

Thus, there is no evidence of a defect in construction or composition at the time

Sponco relinquished custody of the ladder.

However. Mr. Killingsworth testified the ladder had the capacity to coast and

drift this far when it left the manufacturer because of its design and that the

arrangement of the gear box allowed it to loosen progressively with each use,

which, in turn, created more and more drift. He presented a couple of ways to

decrease the drift but not the coast. In order to eliminate both coast and drift, he

offered the alternative design of an electric brake. which we have already

determined to be an unacceptable alternative design.

Accordingly, we have found one theory which provides a reasonable basis for

the jury's determination that the ladder had an unreasonably danuerous

characteristic: namely, that the ladder was unreasonably dangerous in design

because it was not insulated.

CD 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

896 So.2d 164,2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

We turn to the second prong of the analysis, proximate cause.

Proximate Cause

Mr. Brooks testified that if the bucket were insulated. Melvin would have

suffered only a light shock. even if his body made contact with the power lines.

**11 Accordingly, but for the failure to insulate the bucket, Melvin would not have

been electrocuted.

Intended Use

The last prong of the analysis is that the damages must arise while employing

the product in a reasonably anticipated use. Mr. Johnson testified that these types

of aerial ladders dominate the sign industry. While Mr. Sader maintained that thei r

use was broader, he acknowledged that they were commonly used in the sign

industry. Additionally, there was no evidence that Melvin was operating the ladder

in an inappropriate manner.

Thus, we have identified a theory which provided the jury with a reasonable

basis for finding liability on Sponco's part.

MELVIN GUIDRY'S FAULT

Mr. Calvin Peco. who had stopped at Lucky's because his car was

overheating, was the only person to see Melvin make contact with the power

lines. Mr. Peco pulled his car into the parking lot to allow it to cool down and

watched Melvin as he worked on the sign. Melvin brought the ladder down and

both went into the store to purchase a drink and made small talk *177 on their

way out. Mr. Peco returned to his vehicle. Melvin returned to working on the

signs. Mr. Peco testified that he looked up just in time to see Melvin contact the

power lines, electrocuting him and throwing him to the ground just behind Mr.

Peco's car.

Mr. Peco stated that the power lines struck Melvin around his right shoulder and

neck area. The expert physicians testified that it was impossible to conclusively

determine Melvin's entry and exit wounds. In other words, they could not

determine which part of his body first made contact with the lines. Thus. we do not

have any evidence as to which way Melvin was looking when he struck the power

lines.

However, Mr. Peco testified that Melvin was not wearing any kind of body

harness or safety belt. Further-

more. the Occupational Safety and Hazards Administration (OSHA) mandates

that persons, unless specially licensed to work on power lines, maintain a ten

foot distance from power lines. Both Plaintiffs' and Defendants' experts

confirmed that if Melvin had observed OSIIA's safety rule. **12 the accident

would not have occurred. Melvin also had the responsibility of surveying the site

before beginning the work to determine any potential hazards and to call Entergy

to shield the lines.

LUCKY LONGHORN'S LIABILITY

The Defendants assert that the jury erred in finding Lucky liable for Melvin's

death. As we explained above. they had the burden of proving that the Plaintiffs

could not have prevailed against Lucky.

1110] In Louisiana. we employ a duty-risk analysis to determine whether a

party is liable for its negligence

given the particular facts of the case.The analysis

consists of four elements: namely, whether the defendant owed the plaintiff a duty of

care; and if so, whether that duty encompassed the particular risk of harm the

plaintiff suffered; whether the defendant breached that duty: and if so, whether the

breach was a cause-in-fact of the plaintiffs injuries.'

FN22. :Vanning r, 0(70 ,Stores,Q9-117()

.a. 12 '10 091 753 So.2d 163.

I- Cormier v. .•I//yar. 94-12.06 0.,1. App. .

Cir. 2-2:001, 758 So.2(1250.

Dilly

1711..sj "Generally. the owner or operator of a facility. has the duty of exercising

reasonable care for the safety of persons on his premises and the duty of not

exposing such

persons to unreasonable risks of injury or harm.' In

the instant case, Lucky owned the property, including the signs, and its operator, Mr.

Hayes. requested that Melvin do additional work once he arrived on Lucky's

premises. Lucky and Mr. Hayes had a duty of not exposing Melvin to unreasonable

risks of harm.

FN24. itanniqu 753 So.2d at 165.

Breach

[9J The jury could have reasonably found that the placement of the signs in

such close proximity to the power lines constituted a breach of that duty.

However, the Defendant attorneys introduced evidence that Lucky

896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

complied with OSHA's regulations. placing the billboards a sufficient distance away

from the power lines. **13 Mr. Frederick Brooks, Defendants' expert in electrical engi-

neering, as well as in the National Electric Safety Code and OSHA regulations,

testified that OSHA regulations at the time of the accident required a horizontal

distance of 7 1/2 feet *178 from power lines, and Lucky's closest sign provided an 8

1/2 feet clearance. Further, OSHA required a diagonal clearance of 8 foot, and the

diagonal distance of Lucky's closest sign was 9.24 feet.

While Lucky placed the signs themselves a sufficient distance from the power

lines under OSHA, the jury could have found the proximity of the signs to the power

lines created an unreasonable risk of harm. Specifically, OSHA also requires persons

to maintain a ten-foot clearance from overhead power lines. Even though Lucky posi-

tioned the signs within acceptable horizontal and diagonal distances under OSHA's

rules. their proximity to the power lines made it impossible to work on one of the

signs without violating OSHA's ten-foot rule. Thus, once Lucky asked Melvin to work

on the signs, it created an unreasonable danger for him, because he could not work

on all of them without violating OSHA's rule.

Scope (#. Duo'

L10] We must now address whether the risk of Melvin's injuries were within the

contemplation of Lucky's duty. "ITThe scope of the duty inquiry is ultimately a

question of policy as to whether the particular

risk falls within the scope of the duty.- We must examine how easily we can associate

his injuries with Lucky's conduct. '‘

FN25. Roberts v. Benoit 605 So.2d 1032. 1044 0.a.199L).

l' N26, Id.

Mr. Brooks admitted that the signs' placement made it impossible for an

individual to work on the west side of one of the signs without violating OSHA's ten-

foot rule. Moreover, Lucky knew or should have known of the close proximity

because the power lines were already in position when Lucky installed the signs.

Furthermore, because Lucky was aware that these signs would require periodic

maintenance, it should have foreseen the risk created by placing the signs in such

close proximity to the power lines. Accordingly. Lucky's duty encompassed the **14

particular risk that someone performing maintenance work on the signs could come

into contact with the power l ine.

Causation

And finally, the jury could have found that, but for the sign's proximity to the power

lines, Melvin would have avoided electrocution. Additionally, but for Mr. Hayes'

request that he perform this additional work, after he arrived on the premises to work

on another sign, he would not have been working on this particular pole. And, while

testimony did not prove that Melvin was working on the particular sign that

necessitated an OSHA violation, three signs. including that one, were located on the

same pole, and Mr. Hayes had asked Melvin to work on any or all of the three that

needed attention.

Thus, the jury could have reasonably found that the Defendants failed to meet their

burden of producing evidence sufficient to prove that the Plaintiffs could not have

prevailed against Lucky.

S1CNKO'S FAULT

Because the trial court reallocated all of the fault that the _jury assigned Signko,

we review whether the jury could have reasonably determined that it was at fault.

Determining its fault, also, requires a review of the duty-risk analysis.

Duit.

Louisiana Workers' Compensation Law requires employers to do everything

reasonably necessary to protect the life:_ health, safety, and welfare of its employ-

ees.*179This includes providing proper safety de-

vices and safeguards to render the employment safe, considering the normal hazards of

such employment.' "

La.R,S. 21:13.

FN28„ hl.

Scope

2.1 "15 Mr. Kojis' own testimony revealed that Signko knew power lines posed a

normal hazard to its employees. He testified that it was a frequent topic of

conversation among them. Thus, Signko's duty to Melvin certainly encompassed the

particular risk of injury by a power line.

Breach

LIA While Mr. Kojis testified that Signko employed

a ten-foot rule for installations of new signs. he never

96 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

explicitly addressed maintenance of existing signs. Furthermore, he did not

describe the ten-foot requirement as a safety rule; rather, he said Entergy would

require them to relocate the signs if they did not abide by the rule. He did not

even know that OSHA had a ten-foot rule but thought OSHA required only a

seven foot clearance. And despite Signko's duty to provide proper safeguards to

ensure that Melvin's work environment would be safe, it provided him with an

uninsulated ladder, even though insulated ones were available. Thus, the jury

could have

reasonably found that Signko breached its duty to Melvin by' failing to provide

him with an insulated ladder, as well as by its failure to know and, therefore,

stress the importance of safety rules.

Causation

Certainly, Melvin's accident would not have Ilap-pened but for Signko's

failure to provide him with an insulated ladder, as well as Melvin's failure to

place proper significance on adherence to OSHA's safety rules.

CAUSATION-SUBSTANTIAL FACTOR TEST

1I4] Cause-in-fact is one of the essential elements of the Plaintiffs' claim.'" It is

usually determined by using a "but for" test. In other words. if the plaintiff would

not have been injured "but for" the defendant's conduct. the cause-in-fact

component is met.' \

EN29. Perkins v. buer,,v 00-!372

(La.3/23/0 782 So.2d 606.

FN30. BnyAin r. Louisiana Transit Co.. 96-1932 ( ,a.3/4 981,707 So.1d 1'15.

[15] In the above analyses, we have reviewed the "but-for" causation of the

cause-in-fact inquiries. However, when there is more than one action that. **16

allegedly, precipitated an accident, our courts have fashioned a method that is

more effective than the "but for" test in establishing cause-in-fact. l" This method

is often referred to as the "substantial factor test."

EN31. Perkins. 782 So.2d 606.

I d .

1_16j We find a reasonable basis for the jury's determinations that Lucky's

actions, Melvin's actions, Signko's actions, and Sponco's failure to incorporate an

insulated bucket into the ladder's design were all substantial factors

in Melvin's accident. Specifically, Lucky placed the signs in a dangerously close

proximity to the power lines: Lucky's operator asked Melvin to work on those

particular signs after he arrived on site: Melvin violated OSHA's ten-foot rule and

failed to use a safety harness or seat belt. or request that Entergy shield the lines

to make them safe: OSHA held Signko responsible for Melvin's*180 OSHA

violation, and Signko provided Melvin with an uninsu-lated ladder to perform his

job, despite the availability of insulated ones: and, finally, Sponco manufactured

an un-insulated ladder even though. as its president admitted. aerial ladders

dominate the sign industry, and are. therefore, likely to be operated at heights

equivalent to power lines.

FAULT ALLOCATION

[1 7][18_09j Allocating fault requires factual determinations. "As with other

factual determinations. the trier of fact is vested with much discretion in its

allocation of fault. Therefore, an appellate court should only disturb the trier of

faces allocation of fault when it is clearly wrong

or manifestly erroneous."In testing the jury's alloca-

tion for manifest error, we look to the same factors that guided its determination.

Our supreme court enumerated these factors in Watson v. State Farm Fire and

Casualty Insurance Company: I

I N Duncan v. Kansas City S. RI.. Co., 00-66,

pp. 10-11 (1.a.10.30:00), 773 Soy 1/d WO. 680 (citations omitted).

N34.469 So.2d 967,974 L....)_ 1985J,.

( I ) whether the conduct resulted from inadvertence or involved an awareness of the

danger,

**17 2) how great a risk was created by the conduct,

(3) the significance of what was sought by the conduct.

(4) the capacities of the actor, whether superior or inferior. and

(5) any extenuating circumstances which might require the actor to proceed in

haste. without proper thought. And, of course, as evidenced by concepts such as

last clear chance, the relationship between the fault/negligent conduct and the

harm to the plaintiff are considerations in determining the relative fault of the

parties.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

1_20j, The jury assessed the majority of the fault to Melvin and his employer.

Signko. It allocated twenty percent to Lucky and a mere five percent to Sponco. Melvin

was a very experienced sign worker. In fact, Mr. Kojis testified that he was one of the

most experienced at Signko. Melvin had ample experience with this particular ladder. In

his deposition, Mr. Hayes admitted that Melvin mentioned to him that he was going to

have to be careful of those power lines. Thus, Melvin demonstrated an awareness of

the danger. The risk created by violating the 10-foot rule was grave, and, in fact, proved

to be fatal. Mr. Langley testified that Melvin knew of the ten-foot rule and that he also

knew that he had the option of calling Entergy to come shield the lines. In fact. Mr.

13rooks said that OSHA required him to contact Entergy. Additionally, Melvin was in a

superior position to the other parties in his ability to avoid the accident and certainly

only, he. had the last clear chance to avoid electrocution.

Further. OSHA held Signko responsible for Melvin's violation. Moreover. Mr. Brooks

confirmed that "the responsibility for OSHA Regulations or workplace safety regulations

lie

with the employer, the person that is sending people out on the job, and also the

employees, both.-Again, Signko was aware of the danger power lines presented to the

employees, yet it was uncertain of the clearance distance that OSHA required. It also

ascribed its internal ten-foot installation rule to efficiency. more so than safety; Mr. Kojis

stated that Entergy would require them to relocate the signs if they did not abide by the

rule. And Signko provided Melvin *181 with an uninsulated ladder even though insulated

ones were available.

The jury assessed Sponco with only five percent of the fault for Melvin's accident.

Sponco manufactured both insulated and uninsulated ladders since around 1980. Mr.

Sader testified that while the SL-55 ladders were used in the **18 sign industry, their

potential uses were much broader. The jury could have found that Sponco's customer is

in the best position to know its own needs because only the customer knows the

environment and circumstances under which it intends to operate the equipment.

Accordingly, the customer is in the best position to know how often external dangers.

such as power lines, will pose a threat. And, again, in the instant case, Mr. Kojis'

testimony that it was a frequent topic of conversation demonstrates Signko's awareness

that power lines presented a significant risk to its employees, given the type of work

Signko does. Thus, the jury could have found that Signko was in a superior position to

know the type of equipment Melvin needed to do his job safely and, therefore, should

bear the majority of the responsibility for the fact that Melvin's ladder was uninsulated.

Ultimately, Signko had the responsibility to provide Melvin with the proper equipment.

Further, Sponco provided manuals and decals on the ladder which warned that it was

not to be used within ten feet of energized power lines.

And, finally, the jury assessed twenty percent of the fault to Lucky. We find no

manifest error in this determination. Lucky placed the signs in a proximity to the power

lines that required Melvin to violate OSHA's ten-foot rule in order to work on them. Mr.

Hayes asked Melvin to work on these particular signs after he arrived at the site to work

on a different area. Furthermore. Mr. Haves' deposition testimony revealed that Melvin

had brought Mr. Hayes' attention to the fact that the power lines were close to the signs.

Accordingly, we find no manifest error in the jury's fault allocation.

JUDGMENT NOTWITHSTANDING THE VERDICT

[21.11271[2:1..1 When the jury is the factfinder, the standard for overturning its verdict

is a rigorous one. A Judgment Notwithstanding the Verdict (JNOV) is warranted, only,

when the facts and inferences point so strongly and overwhelmingly in favor of one party

that the trial court believes that reasonable persons could not arrive at a contrary verdict.

The trial court may not grant a JNOV if there is contradictory evidence which is of such

quality and weight that reasonable and fair-minded persons in the exercise of impartial

judgment might reach different conclusions. The trial court should not evaluate witnesses'

credibility in deciding whether to **19 grant a JNOV. and it must resolve all inferences or

factual questions in lavor of the non-moving party.'

FN35 I aSalleWirt-I/art Stows, /ih • • 0 I -46 /

(IA.11.28'01)x 801 So.2d 33

[2_d_112.5j We review the trial court's grant ofJNOV by using the same criterion

that governs its decision. If reasonable persons might have reached the same verdict as

the jury, we should reinstate its verdict.'

FN36 Id.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

Because we have already determined that the record reasonably supports the

jury's determination, we vacate the trial court's JNOV and reinstate the jury's

verdict.

*182 ADMISSIBILITY OF EXPERT TESTIMONY

Louisiana Code or kk idencc Art 70:! 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.

In Dauhert v. Merrell Dow Pharmaceuticals, Inc

the United States Supreme Court held that trial courts must act as gatekeepers

by determining that expert testimony is not only relevant but, also, reliable

before admitting it. Louisiana adopted this holding in State v. Forel.

Dauhert suggested several factors to aid the court in determining whether

expert testimony is reliable, including whether the expert's theory is testable, has

been peer reviewed or a subject of publication, its known or potential rate of error,

and its degree of acceptance within the scientific community.' , \

FN37 509 U.S. 579. 113 S.Ct. 2786. 125 L.Ed.2d 469 1l 993).

FN38 628 So.2d 1116 (.1..a.1993).

1:1‘139. Daubert, 509 U.S. 579, 113 S.Ct. 2786

Stephen Killingsworth

1.2.6] **20 The Defendants objected to the admission of Mr. Killingsworth's

testimony regarding his alternative design to include an electric brake on the

ladder. They argued that this testimony did not meet the Datthert/Foret tests.

However, both Foret, as well as the United States Supreme Court's opinion in

Kumho Tire Co. v. Carmi-

chael,' reinforced that a court may use the suggested factors if it will aid in the

reliability determination, but the reliability test is a flexible one. We find no abuse

of discretion in the trial court's decision to admit this testimony.

11‘140. 526 U.S. 137, 119 S.C.1. 1167, 143 2_38 (1999J.

Mr. Killingsworth provided instructive and informative testimony to help the

jury understand the aerial lad

der's components and mechanical functions. His proposed design had already

been incorporated into similar devices: namely, cranes. He explained that

because of the similarity in the components and mechanics of the two devices.

the brake's incorporation into cranes demonstrated the feasibility of its

incorporation into aerial ladders. Even the Defendant's expert admitted that

adding a brake was a feasible design. Ultimately, the Defendants proved that

the primary purpose of each device, one to carry humans and the other to carry

cargo. was a critical factor that caused the adverse effects of such a design in

the aerial ladder to outweigh its utility. However, this factual inquiry was

properly submitted to the jury. The trial court did not abuse its discretion by

admitting Mr. Kill-ingsworth's testimony.

James Sohek

L771 The trial court qualified Plaintiffs' witness, Mr. James Sobek, as an

expert physicist and professional engineer with a specialty in human vision. Mr.

Sobek explained that a person viewing horizontal power lines against a clear sky

cannot accurately perceive his distance from them because of a principle called

stereopsis. lie offered an article that had been published on the subject.

"Problems and Perception of Overhead Power Lines. -showing that the theory had

been tested and discussed the known potential rate of errors. Thus, the trial

court did not abuse its discretion in finding Mr. Sobek's testimony reliable.

*183 Defendants further argue that Mr. Sobek's testimony is irrelevant because

it assumes that Melvin was looking toward the power lines just before he struck

them. and they point out that no witness testified that he was actually looking in

**21 this direction. Nonetheless, the expert testimony shed light on a factual issue

and was properly presented to the jury.

Accordingly, we find no merit to Defendants' arguments. The trial court did

not abuse its discretion in admitting Mr. Sobek's testimony.

EXPERT WITNESS FEES

P812911:301 The trial court has broad discretion to

award and assess costs, and we will not disturb its ruling

absent an abuse of discretion.H The degree to which

the expert's opinion aided the court in its decision is one of the factors to consider

when assessing costs of an expert witness' fee.'"' The Defendants urge that they.

should not have to pay Killingsworth's and Sobek's fees because their testimony

should have been inadmissible.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

As we have already determined that the trial court properly admitted their testimony. we

find no error in its assessing their respective fees to the Defendants.

U1N41, Id.

FN42 Trans Louisiana Gas Co. v. Heard, 629 So.2d 50011a. App. 3 Cir.-199;D.

MEDICAL AND FUNERAL EXPENSES

The Defendants argue that the trial court erroneously awarded the Plaintiffs

$25,250.00, which Signko's workers' compensation carrier had already paid.

Specifically. it paid $16,250.00 in medical expenses and $9,000.00 in funeral expenses.

[3 I] However, the collateral source rule does not allow the two Defendants to benefit

from the workers' compensation carrier's payments. If a plaintiff receives benefits from a

source independent of the tortfeasor, the bene-

fits inure to the plaintiff, not to the tortfeasor.'In other

words, if the independent source, here, the workers' compensation carrier, does not

intervene to recoup the benefits it already paid, the plaintiff may recover the amount of

the benefits from the tortfeasor.

FN43 To1: Premier' Ins. Co. o j Alassaelni-

setts, 98-1934 (La.App. 3 Cir. 6.30:991 742 5Pac1.

[32] The Defendants argue that the collateral source rule does not apply in the

instant case because they are not the tortfeasors in the underlying suit. Nonetheless.

Lucky and Sponco, the two liable parties in the underlying suit, could **22 not have

benefitted from the workers' compensation carrier's payments. Accordingly, the De-

fendants cannot claim the benefit either.

The Defendants argue that Gagnard v. Baldridge''`t stands for the proposition that the

plaintiffs may not get a double recovery in cases such as the instant one. However.

Gagnard is inapplicable. In that case, the plaintiff brought actions against the employer,

both, in workers' compensation and in tort. The court stated that "[a] wrongdoer should

not be required to pay twice for the same elements of damages." ' In the instant case,

neither the Defendant attorney wrongdoers nor Lucky or Sponco, the wrongdoers in the

underlying action, is being required to pay twice for the same element of damages.

Rather, the collateral source rule is applicable. *184 Thus,

we find no error in the trial court's ruling.

FN 44. 612 Sod 732 (1..a.1993).

ist..gt....7.3b (emphasis added).

RANDI GUIDRY

The Defendants appeal the trial court's finding that

Randi Guidry is a proper party to recover wrongful death

and survival damages. Louisiana Lode ;Article 2-, delineates the classes of persons

who may recover for these damages. The first is "[title surviving spouse and child or

children of the deceased, or either the spouse or

the child or children." Before trial, the parties stipulated that Randi was Melvin's daughter.

The Defendants apparently made this stipulation based on Julie's deposition testimony.

However, at trial, testimony revealed that she was not Melvin's biological daughter,

notwithstanding his signature on her birth certificate as well as his execution of an Act of

Acknowledgment of Paternity. The Defendants argue that because no formal adoption

took place, Randi cannot recover as Melvin's daughter.

I N40. La.(:iv.Code art. 2315.1; I .a.t.'iv.(2 ode art '3 I S.Z.

The trial court found that Randi could recover:

The Rousseve court explained that the acknowledgment---when the acknowledged fact

is ultimately untrue, the acknowledgment---and the Court is impressed with the word "may

be null" absent some overriding concern of public policy, indicating to this Court that **23

it is not necessarily an absolute nullity but must he reviewed under the circumstances

surrounding the specific case that is before it.

In tehrr. R,A.Tiwn 467, t' S. 24.N. .103 t.

77 ..1-;(1.2d 614 the U.S. Supreme Court observed that intangible fibers that connect

parent and child have infinite variety, and are woven throughout the fabric of our society

providing it with strength, beauty. and flexibility. The rights of parents have long been

recognized as a counterpart of the responsibilities they have assumed. Justice Stewart

noted in his ascending [sic] opinion in Cohan v. Vohuniniej. 441 U.S. 380. 00 S.(21, 1760,

60 1.1.-:(1.2d 207 that parental rights do not spring full blown from biological connection

between parent

FN48. M. at 419.

QUANTUM OF DAMAGES

**24 Loss of Support

[34j The jury awarded the Plaintiffs $350.000.00 for Melvin's past wages and

loss of earning capacity. Both Plaintiffs and Defendants presented expert

testimony regarding this element of damages. Plaintiffs' expert included fringe

benefits, as well as a significant salary increase, which he based on Mr. Kojis'

testimony that had Melvin stayed with Signko. he would have received these

benefits. Defendants' expert used Melvin's past income tax returns and did not

include the added benefits because Melvin was not receiving them at the time of

his death.

He found it to be unlikely that Melvin would have worked at Signko until

retirement, given that Melvin had worked for other sign companies in the past and

the high turnover rate in the business, generally.

(.351136,1 The jury did not award the exact figure that either expert

calculated. Nevertheless, it is permitted to "substitute common sense and

judgment for that of an expert witness when such a substitution appears war-

ranted on the record as a whole.""Credibility deter-

minations are for the trier of fact, even as to the evaluation of expert witness testimony.

A fact-finder may accept or reject the opinion expressed by an expert, in whole or

in part."'Thus, we find no error in the jury's determi-

nation.

1/N49. Green ( 03-2-195, p.

(J.a.5 25 04). 874 So.2d 838, 84.3.

1N50. ht at 843.

Pre-Death Pain and .Su//'ring,

[3713.8_1 The jury found the Plaintiffs were entitled to $10,000.00 for Melvin's

pre-death pain and suffering. It has vast discretion in assessing damages. We

may find that it abused this discretion, only, if its award is so low in proportion to

the injury that it shocks our conscience.' Indeed, we so find in the instant case.

Mr. Hayes, who came out of the store immediately after the accident. testi fied:

1. N51. Young../- ilzmuriek 03-1038 fl .a.App.

Cir. 2 4:041.,..865 So.2d 960.

A. When I come out I seen him laying on the ground. There was a couple of

people around him. I seen smoke coming off his shirt, and I run over to see if I

could help in any way. There was another fellow there trying to do a little CPR on

him. He was making a lot of moaning sounds, and they asked me to help hold him

down and not let him move. At that time they weren't sure, you know, 1 **25

wasn't sure what had happened. The basket was still up in the air. So, I

assumed he had had a pretty good fall and that is the reason they wanted me to

hold him down, you know. So. two of us held him there waiting for the ambulance

to get there.

Q. You had to actually physically hold him down? A. Yes, sir.

896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

Q. Did you take off his shirt?

A. No, not just myself. A few people that were there just-it was smoldering, so we

wanted it off of him.

Q. And when you took off his shirt you actually burned your hands?

A. Yes, sir.

Accordingly. we vacate the trial court's JNOV, reinstate the jury's verdict, amend

its judgment to increase the quantum of damages for pain and suffering and

render. We, also, reverse the trial court's $70,000.00 award to Randi Guidry. We

cast all costs of this appeal on the Defendants.

AFFIRMED IN PART AS AMENDED, REVERSED IN PART, AND RENDERED.

*186 Q. And you said he was making noises. It appeared that he was in pain?

A. Yes, sir.

Dr. Ledet testified that by the time Melvin reached the emergency room, he

had lost consciousness. While we do not know the duration of Melvin's

consciousness, the above testimony reveals that he did have awareness im-

mediately following the accident.

The Pla int i f fs c i te Strawder v. Zapata Haynie

Corp. in which the decedents drowned twenty to thirty minutes after an

explosion which caused severe burning and blistering. This court upheld an

award of $500.000.00 for pre-death pain and suffering. Additionally. in Cox r.

Moore, this court upheld a $150,000.00 award for pre-death pain and suffering

where the decedent died only a few minutes or almost instantaneously after a car

accident. While we found the award to be on the high end of the spectrum, it was

not an abuse of discretion.

1'N52, 94-453 (1,a.App.. 3 Cir. 1E2'94). 649 So.2d 554.

Accordingly, we find $75,000.00 to be the lowest reasonable amount for

Melvin's pre-death pain and suffering. Therefore, we increase the jury's

assessment to that amount.

Mental Anguiskfrom Malpractice

L39 **26 The jury awarded $30,000.00 for mental anguish arising from the

Defendants' malpractice. Again, the jury has vast discretion in assessing

damages. We do not find that $30,000.00 is abusively low. Thus. we affirm this

quantum.

CONCLUSION

WOODARD, J.. concurring, in part.

Given the uncertainty of how our supreme court would view the unusual

circumstances in the instant case under the light of its Turner v. Bushy `I opinion,

I am constrained to vote with the majority regarding Randi Guidry's legal status in

her family. Namely, Turner addressed the rights of acknowledged illegitimate

children, who are not biological children but did not, specifically, address how

legitimated children in the same circumstances are to be treated. In fact, it

intimated that perhaps its conclusion, that acknowledged illegitimate children

could not recover wrongful death and survival damages under La.R.S. 2315.1 and

2315.2, would be different for legitimated children, as in Randi's situation.

EN I 03-34-W (1, a.9./9:2004 ), 883 So.2d -412.

Louisiana law classifies children as either legitimate. illegitimate, or

legitimated.' - Louisiana Civil Code provides methods for, both, formally

acknowledging illegitimate children and for legitimating illegitimate children.

Formal acknowledgment and legitimation are separate and distinct acts with

different effects and benefits flowing from each. Most importantly, legitimated

children enjoy an added layer of protection from those who wish to attack the

parent/child relationship. Specifically, the Civil Code explicitly permits. only. the

father or if *187 he is deceased, his heirs or legatees to seek to disavow a le-

gitimate child's paternity.Conversely, La.Civ.Code art.

207 provides that lelvery claim, set up by illegitimate children. may be contested by

those who have amv interest therein." (Emphasis added).

1:N2. Id.

EN3. La.Civ.Code art. 187; La.Civ.t.'ode art, 190.

In Turner, La.Civ.Code art. 207 permitted the defendants to attack

McWright's claim because he was a for-

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04))

mally acknowledged. illegitimate child. When he sought to prove that he was a

proper party to recover wrongful death damages because the deceased had

executed multiple acknowledgments of paternity for child support purposes, the

defendants contested the existence of a biological relationship and argued that the

acknowledgments were insufficient to elevate his status to a "child" for wrongful

death purposes. Ultimately, DNA tests proved that no biological relationship, in

fact, existed, and the supreme court deemed the formal acknowledgment to be a

nullity because of this.

Before Turner, our jurisprudence, governing formal acknowledgments, held that

"[w]hen the acknowledged fact is ultimately untrue, the acknowledgment may be

null, absent some overriding concern of public polk:v. -F\4 This permitted courts

some discretion. However, essentially, the supreme court's decision in Turner

deletes the italicized language of prior jurisprudence, finding that "an Article 203

formal acknowledgment absent a biologi-

cal relationship is a nullity." (Emphasis added.)

FN4, /.?( TyAcyc v. ./rnicv. 97- I I 49. p (La.12;2:97.), 704 So.2d 229. 233.

ENS. Turner. 883 So.2d 412.

Notwithstanding, the court highlighted the distinction between a formally

acknowledged illegitimate child and a legitimated child. It concluded that the

acknowledgment of paternity, at issue, lacked a declaration of intent to legitimate

McWright, and In' Wilma this declaration. the execution of the ... stipulation did not

legitimize McWright. Because McWright was not a legitimate child at the time this

wrongful death and survival action commenced, but rather a formally

acknowledged illegaimated child under Article 203, his claim as an illegitimate

child may be subject to scrutiny provided the defendants have

probed all other requirements of Article 207." (Emphasis added.)

FN6. Id. at 418.

This statement contemplates the possibility that. despite the absence of a

biological relationship between him and the child, the deceased could have

legitimated McWright, thereby, permitting his recovery of wrongful death benefits, if

the deceased had declared his intention to do so.

Indeed. if the supreme court intended this distinction. it appears to contradict

other portions of its Turner opinion which emphasize that a biological relationship is

necessary for recovery. In support of its decision, the supreme court stressed that it

is the biological relationship, rather than the legal status, which is determinative of

whether a person is entitled to recover these damages. It specifically stated, "it is

imperative that we uphold the critical requirement that the tort victim and the child

have a biological relationship." Consequently, the opinion gives us conflicting

guidance in resolving Randi's right to recover, particularly, when meshed with

legislative dictates.

For example. the Turner opinion's prohibition on a child's recovery, based on no

biological relationship, is inconsistent with our Civil Code which does not create

classifications*188 of biological versus non-biological children but rather, only,

legitimate versus illegitimate children. The Code clearly contemplates the possibility .

that a child could prove legitimate filiation and receive the attendant benefits of this

classification without having a biological relationship.

1.oti-,;iatla Civil Code art',. 193 through .107 provide that a party can prove

legitimation through, inter cilia, "a transcript from the register of birth or baptism" or by

reputation. Article 195 states. in pertinent part:

The being considered in this capacity is proved by a sufficient collection of facts

demonstrating the connection of filiation and paternity which exists between an

individual and the family to which he belongs.

The most material of these facts are:

That such individual has always been called by the surname of the father from

whom he pretends to be born•

(Emphasis added.) This language implicitly recognizes that legitimated children

are not necessarily biological children. Moreover, none of the methods of legitimat-

ing a child require proof of a biological relationship.

The method Melvin chose to legitimate Randi is that provided in I .a.Civ.Code art.

19S:

Illegitimate children are legitimated by the subsequent marriage of their father and

mother, whenever theC_D' 2011 Thomson Reuters. No Claim to Orig. US Gov.

Works.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)

(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))

latter have formally or informally acknowledged them

as their children, either before or after the marriage.

Melvin had elevated Randi's status to that of a "legitimated child" under all of the relevant

codal provisions. By the time of the wrongful death suit, not only had he formally

acknowledged her as his daughter through an Act of Acknowledgment of Paternity but,

also, he had signed her birth certificate as her father and, subsequently. married her

mother. Furthermore, she was his daughter by reputation. All of these affirmative acts.

evidencing his intent, should provide her with an added layer of protection against

attacks from third-party defendants, regarding her familial status.

Nevertheless, the dilemma for Randi is two-fold: She is not Melvin's biological child and

the method Melvin chose to legitimate her is premised, in part, on an acknowledgment

which, alone, the supreme court considers null absent a biological relationship. The

unanswered question is whether this nullity can be cured and. if so. whether Melvin

cured it by taking the next step of legitimating Randi.

Furthermore, there is an issue of whether the third-party Defendants, even, have

standing to contest Randi's claim, given l.a.Civ.Cotle art,;. 187 and 190. Essentially,

these articles imbue, only, the "father" or his heirs with standing to strip a "child" of his

or her legitimate status, which, in essence, is the foundation of these third-party

defendants' claims in the instant case.

Given the apparent legislative intent, as well as

Melvin's, it certainly does not seem appropriate or prudent

for TUI'llerti umbrella to be held over Randi's head, deny-

ing her benefits for the loss of the man she knew to be and

treated as her father.

La.App. 3 Cir.,2004.

Guidry v. Coregis Ins. Co.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04'1

END OF DOCUMENT

further other than to say that he will be able to testify as an accident reconstruction expert with

regard to safety analysis. He will be able to testify as to electrical injuries as it applies to safety

analysis. He will be able to testify as to aerial

ladders as to safety analysis for which The Court is satisfied as to his training and expertise in

those matters. But rather than qualify him in each of the categories as tendered from the

plaintiff, it feels that the area that may be included as part of that testimony will be within the

areas that The Court has delineated.

I want to make certain that I have indicated that he will be able to testify at this point so

that we do not have objections throughout his testimony by the defendants, and if the

defendants objections to anything above and beyond the safety engineer, for which The Court

has previously accepted, objections are noted.

MR. MARCEAUX:

Thank you, Your Honor.

(Break in proceedings)

(Jury returns to courtroom)

THE COURT:

All right, Ladies and Gentlemen, at this time we are ready to proceed. Al this time The Court

would accept and recognize Mr. Lewis Barbe as an expert in the field of safety engineering, and

also as an expert in

would be accepted as an expert in the field of accident reconstruction until such time as

that information was to be submitted.

Now, he's before The court and offered in various positions as an expert for which the

defendants have indicated their objections. The Court has previously reviewed and for the

reasons stated, and if I am incorrect on the date, it was the--- I'm not sure. I think it was

October the 10th, but it was the hearing that was had at that time, The Court gave the rationale

the basis for Daubert, the

application of State v. Foret of Daubert to the State of Louisiana and the basis for expert

evaluation. The Court also relied upon the case of Mistich vs. Volkswagon of Germany, Inc.

86 So. 2d 1073, indicating that experience alone can be sufficient to qualify as an expert.

At this time, based on the information received and what we may be doing in part and

parcel is arguing semantics of which The Court feels that the use of the word "design" may

be inappropriate since Mr. Barbe insists on the word "analysis." The Court is going to

continue to accept him in the field as an expert in safety engineering. The Court is also

satisfied that he is an expert in safety analysis based on his past history,

education, training, as well as experience. As a result of being an expert in safety analysis,

The Court is not going to go any

previous cases in safety engineering of cranes. That is what he's here to testify for. He has been

accepted before. He also stated, and I think Mr. Roy is

mischaracterizing his testimony. He stated that he is not aware of a course in college that you can

take on accident reconstruction.

However, as a safety engineer he has taken numerous courses in accident reconstruction and he

has been accepted in court before as a safety engineer and given opinions on accident

reconstruction. So, that is what we're talking about, and that is what we're

tendering him as.

THE COURT:

All right. 1 am not familiar with the specifics of the depositions that were taken,

but The Court does recall approximately October the 10th there was a specific hearing in which

Mr. Barbe was brought in and Daubert challenges were made at that time. The Court, upon

hearing the qualifications and the traversal, did accept Mr. Barbe as an expert in the field of

safety engineering. Following Mr. Barbe's release from the witness stand it became apparent

that he was going to be tendered, or at least pursuant to argument by the plaintiffs, as an

expert in the field of accident reconstruction. The Court indicated at that time it felt that it had

insufficient information in fact did

defer making any decision as to whether he