Sherry Boothe and Barry Boothe, Individually and on Behalf of Their Minor Children, Amber and Amanda Boothe v. State of Louisiana Department of Transportation and Development and Parish of East Baton Rouge

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #027

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 26th day of June, 2019, are as follows:

PER CURIAM:

2018-C-1746 SHERRY BOOTHE AND BARRY BOOTHE, INDIVIDUALLY AND ON BEHALF OF
THEIR MINOR CHILDREN, AMBER AND AMANDA BOOTHE v. STATE OF
LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND PARISH
OF EAST BATON ROUGE (Parish of E. Baton Rouge)

In this matter, we are called upon to decide whether the district
court erred in granting judgment notwithstanding the verdict in
favor of the plaintiff and in awarding damages. For the reasons
that follow, we affirm the granting of the judgment
notwithstanding the verdict, but amend the judgment with respect
to damages.

AFFIRMED AS AMENDED.

HUGHES, J., dissents in part with reasons.
CRICHTON, J., dissents and assigns reasons.

SUPREME COURT OF LOUISIANA

No. 2018-C-1746

SHERRY BOOTHE AND BARRY BOOTHE, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILDREN, AMBER AND AMANDA
BOOTHE

VERSUS

STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT AND PARISH OF EAST BATON ROUGE

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF E. BATON ROUGE

PER CURIAM

In this matter, we are called upon to decide whether the district court erred in

granting judgment notwithstanding the verdict in favor of the plaintiff and in

awarding damages. For the reasons that follow, we affirm the granting of the

judgment notwithstanding the verdict, but amend the judgment with respect to

damages.

FACTS AND PROCEDURAL HISTORY

On December 11, 2008, the Baton Rouge area experienced a snowstorm. The

storm was of sufficient magnitude to result in the issuance of a winter weather

advisory and closure of area schools. The schools reopened the next day as the

weather improved.

At approximately 8:00 a.m. on the morning of December 12, 2018, Sherry

Boothe was operating her vehicle eastbound on Greenwell Springs Road, after

bringing her daughter to school. As Ms. Boothe crossed the Comite River Bridge to

return home, she lost control of her vehicle. Her vehicle crossed the median, flipped,

and came to rest in the opposite lane of oncoming traffic. According to Ms. Boothe,

after exiting her vehicle, she believed she had hit either ice or oil because the road

was slippery.

Lieutenant Chad Ruiz investigated the accident. He found ice in the fog line,

the centerline, and the opposite fog line of the road. As a result, Lt. Ruiz closed both

sides of the roadway and remained on the scene until the road was sanded.

Subsequently, Ms. Boothe and her husband, individually and on behalf of their

two minor daughters, filed the instant suit against the State of Louisiana, through the

Department of Transportation and Development (“DOTD”), seeking personal injury

damages arising from the accident. After extensive discovery, the matter proceeded

to a two-day jury trial.

At trial, Ms. Boothe testified she traveled the Comite River Bridge earlier that

morning in heavy traffic to bring her daughter to school, and did not notice any ice

the first time she crossed. Ms. Boothe admitted DOTD posted warning signs that the

bridge will ice, but explained the sign is posted year-round, and the bridge contained

no active warning. According to Ms. Boothe, it had snowed the day before, but the

snow began to melt by midday. Ms. Boothe described the day of the accident as

“cloudless and it [the snow] was almost all gone.” She testified the car slid and she

knew “it had to be ice or oil because it was so slippery.”

Lt. Ruiz testified he inspected the road immediately upon arrival at the accident

scene and discovered “there was ice in the fog line, the centerline, and the opposite

fog line.” At that time, he closed both sides of the bridge and requested DOTD sand

the road. Lt. Ruiz did not recall whether the side where Ms. Boothe’s vehicle ended

up was sanded, but stated “I think that’s something I probably would have

documented.” Lt. Ruiz also testified he did not issue Ms. Boothe a citation.

Conard Monroe, a highway foreman employed by DOTD, testified he did not

recall the day of the accident, but admitted DOTD issued at least two work orders that

day to sand the Comite River Bridge. The work orders did not indicate the time the

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crews were sent out, and Mr. Monroe did not recollect the time he went out. Mr.

Monroe maintained throughout his testimony that when he sands bridges, he sands

both sides of the bridge. However, plaintiffs’ counsel went on to question Mr.

Monroe about his deposition testimony, in which Mr. Monroe had stated one yard of

sand was used on the bridge and that would be enough sand to cover at least one side.

Mr. Monroe admitted that he stated in deposition that his crew only sanded one side

of the bridge that day. However, he reiterated that he did not have any independent

recollection of the incident in question, and pointed out that he sanded bridges other

than the Comite River Bridge on the day of the accident. He further testified he could

not think of any reason why they would have only sanded one side of the bridge and

not the other.

Patrick Batiest, a highway foreman employed by DOTD, testified he received

a work order to remove trees near an area near the Comite River Bridge the day

before the accident and was required to traverse the bridge. Mr. Batiest testified he

did not remember whether ice was on the bridge, but maintained he would have

reported it to the superintendent to request permission to sand the bridge. The next

day, the day of the accident, Mr. Batiest received a second work order requesting him

to sand the Comite River Bridge. At trial, Mr. Batiest could not recall whether the

accident had occurred or whether the police had arrived when he sanded the bridge.

Nonetheless, Mr. Batiest acknowledged his deposition testimony indicated he had not

seen a flipped vehicle, but that a police officer was on the scene blocking traffic. Mr.

Batiest also acknowledged that he is supposed to sand both lanes of travel when

sanding a bridge.

Albert Shields, a parish highway superintendent employed by DOTD, was the

supervisor in charge of Mr. Batiest and Mr. Monroe on the day of the accident. Mr.

Shields explained that when a storm is coming, DOTD places more inspectors out on

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the roads during the event to search for bad spots. DOTD monitors the weather

through weather information received from the engineer techs, the district

administrator, or from DOTD’s downtown headquarters. DOTD also has a priority

list of bridges in East Baton Rouge Parish that are most worrisome during a snow

event, and the Comite River Bridge ranks in the top third of priority. Mr. Shields

testified that at the time of the accident, state troopers would recommend highway

closures, and that he did not have the authority to close a highway. He explained that

if he had received a call from Mr. Batiest about ice on the Comite River Bridge, he

would have gone to the bridge, made a judgment call, and called the engineering tech.

According to Mr. Shields, at the time of the accident, DOTD only had one sand truck

in his unit. He explained that each sanding job is a “judgment call,” depending on

what’s on the road and the severity of the ice situation. Mr. Shields testified the

foremen would not necessarily sand both sides of the bridge, explaining “[i]f they got

called out during the day and only one side was froze up and the other side didn’t

have any accumulation of ice or snow on the road, it wouldn’t be necessary to sand

the other side.”

At the conclusion of trial, the jury was given the following interrogatory:

“[w]as the State of Louisiana, Department of Transportation and Development at fault

for Sherry Boothe's accident on December 12, 2008?” The jury responded “no.” The

jury was polled, confirming a 9-3 verdict. The district court subsequently signed a

judgment in conformity with the jury’s verdict.

After the judgment was signed, plaintiffs filed a motion for judgment

notwithstanding the verdict (“JNOV”) and an alternative motion for new trial.

Following a hearing, the district court granted the motion for JNOV and rendered

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judgment in favor of plaintiffs in the total amount of $919,191.20.1 The district court

also conditionally granted a new trial in favor of plaintiffs.

DOTD appealed. On appeal, the court of appeal vacated in part, amended the

judgment in part and affirmed it as amended. Boothe v. State, Dep't of Transportation

& Dev., 2018-0120 (La. App. 1 Cir. 9/21/18), ___ So.3d ___. In affirming the

granting of the motion for JNOV, the court of appeal reasoned the evidence

overwhelmingly supported the district court’s finding that the icy condition of the

Comite River Bridge created an unreasonable risk of harm and was a substantial

factor in bringing about the accident. Turning to damages, the court of appeal

characterized the district court’s general damage award as being “relatively high,” but

concluded the award did not rise to the level of an abuse of discretion. However, the

court amended the district court’s $600,000 general damage award to Ms. Boothe to

reflect the statutorily imposed $500,000 cap set forth in La. R.S. 13:5106(B)(1) and

affirmed this award.2

1
The district court itemized the damages as follows:

Past Medical Expenses $32,431.20
Future Medical Expenses $44,760.00

Past and Future Physical Pain and Suffering $300,000.00

Past and Future Mental Anguish $100,000.00

Past and Future Loss of Enjoyment of Life $100,000.00

Loss of Wages/earning capacity $ 75,000.00

Loss of society, services and relations $150,000.00

In addition, the district court awarded Ms. Boothe’s two minor children, $8,500.00
each (totaling $17,000.00) for loss of society, services, and relations.
2
The court of appeal’s judgment also vacated the district court's awards to Ms. Boothe's
husband and children for loss of society, services, and relations, finding these claims were legally
extinguished pursuant to La. R.S. 13:5106(B)(1). In addition, the court of appeal vacated the district
court's $75,000 award to Ms. Boothe for loss of wages/earning capacity, finding no support in the
record for such an award. Finally, the court ordered the award for future medical be placed in a
revisionary trust pursuant to pursuant to La. R.S. 13:5106(B)(3)(c). Plaintiffs have not sought review
of the court of appeal’s judgment insofar as it vacated these awards or reduced the general damage
(continued...)

5

Upon DOTD’s application, we granted certiorari to consider the correctness of

this judgment. Boothe v. State of Louisiana, Dept. of Transp. & Develop., 18-1746

(La. 1/28/19), 263 So.3d 424.

DISCUSSION

In its application, DOTD presents two assignments of error: (1) the court of

appeal erred in failing to reverse the district court’s granting of the motion for JNOV;

and (2) the compensatory damage award is excessively high. We will address these

issues in turn.

Motion for JNOV

The legal authority for granting a JNOV is set forth in La.Code Civ. P. art.

1811(B), which provides, in pertinent part, “[i]f a verdict was returned the court may

allow the judgment to stand or may reopen the judgment and either order a new trial

or render a judgment notwithstanding the verdict.” In Joseph v. Broussard Rice Mill,

Inc., 2000-0628 (La. 10/30/00), 772 So.2d 94, 99, we discussed the criteria for

granting a JNOV, as well as, the standards for reviewing a judgment granting a

JNOV. We stated:

La.Code Civ. Proc. art. 1811 controls the use of JNOV.
Although the article does not specify the grounds on which
a trial judge may grant a JNOV, in Scott v. Hospital Serv.
Dist. No. 1, 496 So.2d 270 (La.1986), we set forth the
criteria used in determining when a JNOV is proper. As
enunciated in Scott, a JNOV is warranted 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 motion should be granted only when the evidence
points so strongly in favor of the moving party that
reasonable persons could not reach different conclusions,
not merely when there is a preponderance of evidence for

2
(...continued)
award to the statutory cap of $500,000. Accordingly, these portions of the court of appeal’s
judgment are final and will not be discussed further in this opinion.

6

the mover. The motion should be denied if there is
evidence opposed to the motion which is of such quality
and weight that reasonable and fair-minded persons in the
exercise of impartial judgment might reach different
conclusions. Scott, 496 So.2d at 274. In making this
determination, the trial court should not evaluate the
credibility of the witnesses, and all reasonable inferences
or factual questions should be resolved in favor of the
non-moving party. Anderson v. New Orleans Pub. Serv.,
Inc., 583 So.2d 829, 832 (La.1991). This rigorous standard
is based upon the principle that “[w]hen there is a jury, the
jury is the trier of fact.” Scott, 496 So.2d at 273; Jinks v.
Wright, 520 So.2d 792, 794 (La.App. 3 Cir.1987).

In reviewing a JNOV, the appellate court must first
determine if the trial judge erred in granting the JNOV.
This is done by using the aforementioned criteria just as the
trial judge does in deciding whether to grant the motion or
not, i.e. do the facts and inferences point so strongly and
overwhelmingly in favor of the moving party that
reasonable persons could not arrive at a contrary verdict?
If the answer to that question is in the affirmative, then the
trial judge was correct in granting the motion. If, however,
reasonable persons in the exercise of impartial judgment
might reach a different conclusion, then it was error to
grant the motion and the jury verdict should be reinstated.
Anderson, 583 So.2d at 832.

In order for the DOTD to be held liable, plaintiffs must prove that (1) DOTD

had custody of the thing which caused plaintiffs' damages, (2) the thing was

defective because it had a condition which created an unreasonable risk of harm, (3)

DOTD had actual or constructive notice of the defect and failed to take corrective

measures within a reasonable time, and (4) the defect was a cause-in-fact of plaintiffs'

injuries. Cormier v. Comeaux, 98-2378 (La. 7/7/99), 748 So.2d 1123, 1127.

Plaintiffs argue that they clearly established all four requirements in this case.

Specifically, they contend they proved (1) DOTD had custody of the roadway, (2) the

icy conditions of the roadway presented an unreasonable risk of harm, (3) DOTD had

knowledge of the dangerous conditions, and (4) the ice was a cause in fact of the

accident.

In contrast, DOTD argues the evidence was inconclusive as to whether the

7

condition of the roadway at the time of the accident presented an unreasonable risk

of harm. DOTD asserts the facts and inferences of this case do not point so strongly

and overwhelmingly in favor of the plaintiffs that reasonable jurors could not have

arrived at the verdict they did on the issue of liability.

The unrefuted testimony of the investigating officer, Lt. Ruiz, established that

there was ice on the road at the scene of the accident. In particular, Lt. Ruiz testified

he inspected the road immediately upon arrival at the accident scene and discovered

“there was ice in the fog line, the centerline, and the opposite fog line.”

DOTD’s employees uniformly testified that icy roads are a hazard to the

motoring public, and the record establishes that DOTD issued a work order to sand

the Comite River Bridge following the snowstorm. However, Lt. Ruiz testified that

he did not see any evidence of sanding on the bridge, adding that sanding was

something he probably would have documented if it had been present.

The primary testimony concerning DOTD’s efforts at sanding the bridge came

from Mr. Monroe, the foreman of the crew responsible for sanding the Comite River

Bridge. Mr. Monroe testified that when he sands a bridge, he typically sands “both

sides of the bridge, east and west.” However, when questioned about his earlier

deposition testimony, he admitted that he had testified that his crew only sanded one

side of the bridge:

Q. So you agree with me in your deposition you testified
you only sanded -- your crew only sanded one side of the
bridge that day?

A. Yes.

The uncontroverted evidence in the record reveals that there was ice on the

roadway at the time of the accident, and DOTD failed to take proper measures to

address this condition. This evidence points so strongly in favor of the moving party

that reasonable persons could not reach different conclusions. Accordingly, we find

8

the district court did not err in granting the motion for JNOV in favor of plaintiffs

Damages

Having found the district court properly granted the motion for JNOV, we now

turn to a review of the district court’s damage award. In particular, we focus on the

district court’s general damage award which was affirmed on appeal after being

reduced to $500,000 in order to conform with the statutory cap.

It is well-settled that vast discretion is accorded to the trier of fact in fixing

general damage awards. La. Civ.Code art. 2324.1; Duncan v. Kansas City Southern

Railway Co., 00–0066 (La.10/30/00), 773 So.2d 670. This vast discretion is such that

an appellate court should rarely disturb an award of general damages. Youn v.

Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S.

1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court

in reviewing general damage awards is not to decide what it considers to be an

appropriate award, but rather to review the exercise of discretion by the trier of fact.

Youn, 623 So.2d at 1260.

The initial inquiry, in reviewing an award of general damages, is whether the

trier of fact abused its discretion in assessing the amount of damages. Cone v.

National Emergency Serv. Inc., 99–0934 (La.10/29/99), 747 So.2d 1085, 1089; Reck

v. Stevens, 373 So.2d 498 (La.1979). Only after a determination that the trier of fact

has abused its “much discretion” is a resort to prior awards appropriate, and then only

for the purpose of determining the highest or lowest point which is reasonably within

that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). In reviewing

the facts, the reviewing court should examine whether the present award is greatly

disproportionate to past awards for similar injuries, though prior awards are only a

guide. Bouquet v. Wal-Mart Stores, Inc., 08-0309 (La. 4/4/08), 979 So.2d 456, 459.

9

It is undisputed Ms. Boothe sustained a fractured cervical disc as a result of the

December 12, 2008 crash. She was treated conservatively following the accident and

was required to wear a neck brace continuously for five months. She underwent

approximately six weeks of physical therapy in early 2009, which allowed her to start

regaining motion. She later began seeing Dr. Nyboer, a pain management doctor,

who prescribed muscle relaxers. Based on the advice of Dr. Soleau, Ms. Boothe

began to wean herself from the muscle relaxers, as they were causing her to be

lethargic. Over the next several years, Ms. Boothe continued to be sporadically

treated by Dr. Soleau and Dr. Nyboer. She also underwent physical therapy sessions

in 2012 and 2015. At the time of trial, Ms. Boothe testified she was still seeing Dr.

Soleau as needed.

Dr. Soleau did not place any specific limitations on Mrs. Boothe's activities,

but rather testified he would “let pain limit her activities.” Dr. Soleau further testified

that “she was good” from a structural/stability standpoint and he would simply tell

her to use common sense regarding physical activities.

Dr. Soleau stated that although surgery would remain an option for Mrs.

Boothe going into the future, he would not “pull [the trigger] until we have to.”

Moreover, based on all of the MRIs that Mrs. Boothe had undergone over the years,

Dr. Soleau considered her condition to be “stable” and believed that conservative

treatment remained appropriate.

Ms. Boothe testified she continues to suffer from headaches and has severely

limited motion in her neck. She indicated that she has had to reduce her work hours

to part-time, can no longer garden like she used to, and is not as active at home and

on vacation as she used to be. Ms. Boothe also testified she was unable to drive for

several months after the accident.

DOTD argues that similar cases involving cervical fractures have resulted in

10

general damage awards of $50,000 or less. See Coleman v. United Fire and Cas. Co.,

50,181 (La. App. 2 Cir. 9/30/15), 181 So.3d 781 ($23,400 awarded for a fractured

neck); Coughlan v. Smith, 07-0485 (La. App. 4 Cir. 11/14/07), 971 So.2d 1197

($45,000 awarded for soft tissue neck injuries not requiring surgery); Monk v. State,

Depart. of Transp. & Develop., 05-0097 (La. App. 3 Cir. 6/29/05), 908 So.2d 688

($50,000 awarded for unspecified neck injury); Mullins v. Melerine, 636 So.2d 240

(La. App. 4 Cir. 1993) ($22,679 awarded for hairline cervical fracture requiring the

use of a neck brace); Parliman v. Kennelly, 520 So.2d 445 (La. App. 5 Cir. 1988)

($31,000 awarded for compression fracture of a cervical vertebrate).

We find the case of Collins v. Shelter Mutual Ins. Co., 36,528 (La. App. 2 Cir.

12/11/02), 833 So.2d 1166, 840 So.2d 539, writ denied, 2003-0124 (La. 3/21/03), 840

So. 2d 539, to be instructive. In Collins, the plaintiff sustained an injury to her neck

and shoulder area as a result of an accident. The court found the injury had persisted

over the years and would likely continue to cause the plaintiff pain and discomfort

indefinitely. The evidence indicated that her pain would have adverse effects on her

life. Considering the severity and long-term nature of the symptoms, the district court

awarded $150,000 in general damages, and the court of appeal affirmed on appeal.

While the injuries in the instant case are more significant than those in Collins, the

facts are otherwise similar with respect to the long duration of the condition.

Taking into account all the facts of this case, we find the district court’s general

damage award of $600,000 rises to the level of an abuse of discretion. Instead, we

find $300,000 to be an appropriate award for general damages.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to

reduce the general damage award to $300,000. In all other respects, the judgment of

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the court of appeal is affirmed.

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06/26/19

SUPREME COURT OF LOUISIANA

No. 2018-C-1746

SHERRY BOOTHE AND BARRY BOOTHE, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILDREN, AMBER AND AMANDA
BOOTHE

VERSUS

STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT AND PARISH OF EAST BATON ROUGE

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

Hughes, J., dissenting in part.

I respectfully dissent in part to protest the superficial manner in which this

court reduced the plaintiff’s damage award.

In the Coleman case cited, the amount of damages was not appealed. Neither

were damages appealed by the plaintiff in the cited Collins case, which was rendered

17 years ago, in 2002.

There is no discussion of the standard for reducing an excessive award to the

highest amount reasonable; rather, it appears this court simply picked a number out

of thin air, thus substantiating its judgment for that of the fact-finder, which is not

the proper analysis.

The court of appeal was correct in all aspects and should be affirmed.

06/26/19

SUPREME COURT OF LOUISIANA

No. 2018-C-1746

SHERRY BOOTHE AND BARRY BOOTHE, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILDREN, AMBER AND AMANDA
BOOTHE

VERSUS

STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT AND PARISH OF EAST BATON ROUGE

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF E. BATON ROUGE

Crichton, J., dissents and assigns reasons.

“When there is a jury, the jury is the trier of fact.” Scott v. Hosp. Serv. Dist.

No. 1, 496 So. 2d 270, 273 (La. 1986). See also C.C.P. art. 1736. In this case, the

jury found that the DOTD was not responsible for plaintiff’s accident. In my view,

in overturning that verdict and granting the JNOV, the trial court substituted her

judgment for that of the jury, evaluated the credibility of witnesses, and failed to

make reasonable inferences and resolve factual questions in favor of the non-moving

party, the DOTD. Joseph v. Broussard Rice Mill, Inc., 2000-0628, p.5 (La.

10/30/00), 772 So. 2d 94, 99. I would therefore reverse the trial court judgment and

reinstate the jury verdict.