Julie Guidry v. Coregis Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-325

JULIE GUIDRY, ET AL.

VERSUS

COREGIS INSURANCE COMPANY, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NUMBER 98-4848
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

BILLIE COLOMBARO WOODARD
JUDGE

**********

Court composed of Chief Judge Ulysses G. Thibodeaux, Billie Colombaro Woodard,
and Oswald A. Decuir, Judges.

AFFIRMED IN PART AS AMENDED, REVERSED IN PART, AND
RENDERED.

Woodard, J., concurs in part and assigns written reasons.

Larry Lane Roy Gregory Paul Allen Marceaux
Preis, Kraft & Roy Marceaux Law Firm
Post Office Drawer 94-C 1800 Ryan Street, #101
Lafayette, Louisiana 70509 Lake Charles, Louisiana 70601
(337) 237-6062 (337) 310-2233
COUNSEL FOR COUNSEL FOR
DEFENDANT/APPELLANT: PLAINTIFF/APPELLANT:
James Daniels Julie Guidry
Ringuet, Daniels & Collier

Gus A. Fritchie James Huey Gibson
Irwin Fritchie Urquhart & Moore Allen & Gooch
400 Poydras Street, Suite 2700 Post Office Box 3768
New Orleans, Louisiana 70130 Lafayette, Louisiana 70502-3768
(504) 310-2100 (337) 291-1301
COUNSEL FOR COUNSEL FOR
DEFENDANT/APPELLANT: DEFENDANT/APPELLANT:
Lawrence D. Wiedemann Coregis Ins. Co.
Wiedemann & Wiedemann

2

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 electrocuted 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
ladder, 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. Weidemann, 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 filed 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.

1

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 would have received had they prevailed in the underlying lawsuit.1
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.2 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,”3 because the
malpractice foreclosed their opportunity to pursue their underlying claims against
the actual persons allegedly responsible for Melvin’s death.4
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.5 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.6
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.
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.7 Thus, if a jury had

1
Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109 (La.1982).
2
Id.
3
Smith v. State, Dep’t of Health & Hospitals, 95-38 (La. 6/25/96), 676 So.2d
543, 551 n. 9.
4
Smith, 676 So.2d 543.
5
See La.Civ.Code art. 2323(A).
6
See La.R.S. 23:1032.
7
See La.Civ.Code art. 2323.

2

allocated 100% of the fault to Melvin and/or to his employer, the Plaintiffs’
ultimate recovery would have been zero. Therefore, the jury had to assess the fault
of Melvin and his employer, as well as the fault of any potential defendants in the
underlying case.
The Plaintiffs maintain that the potential defendants in the underlying case
were Sponco Manufacturing/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 Entergy, the custodian of the power lines.
The jury allocated fault as follows:

Sponco Manufacturing 5%
Kojis & Sons, Inc. 0%
Entergy 0%
Signko, Inc. 45%
Melvin Guidry, Jr. 30%
Lucky Longhorn Truck Stop 20%

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 for 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. Lawrence and Mr.
Weidemann, 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.

3

Additionally, the Defendants urge that the trial court committed evidentiary
errors in admitting certain testimony that Plaintiffs’ expert witnesses, Stephen
Killingsworth 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
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.8 In the instant case, the two attorneys admit these two elements,
establishing the Plaintiffs’ prima facie 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.9 The admittedly unnatural result 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.10
“Otherwise, there is an undue 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.”11

8
Jenkins, 422 So.2d 1109.
9
Id.
10
Id.
11
Id. at 1110.

4

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
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.12

SPONCO’S FAULT
The Defendants assert that the jury erred in finding Sponco liable for
Melvin’s 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.13 It requires that: 1) a characteristic of the manufacturer’s
product renders it unreasonably dangerous; 2) the unreasonably dangerous
characteristic proximately caused the Plaintiff’s damages; and 3) the damages
arose when employing the product in a reasonably anticipated use.14 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.15 Thus, we turn first to a review of evidence concerning any
unreasonably dangerous characteristics.

Inadequate Warnings

12
Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607; Youn v. Maritime
Overseas Corp., 623 So.2d 1257 (La.1993); Cheairs v. State, 03-680 (La.12/3/03),
861 So.2d 536.
13
LA.R.S. 9:2800.52.
14
La.R.S. 9:2800.54 (A).
15
La.R.S. 9:2800.54 (B).

5

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
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 Conform 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 plaintiff’s damages.16 Additionally, it requires that “[t]he
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.”17
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.18 Alternatively, it can show that “in light of then-existing reasonably
available scientific and technological knowledge,” the alternative design was not
feasible or economically practical.19

16
La.R.S. 9:2800.56(1).
17
La.R.S. 9:2800.56(2).
18
La.R.S. 9:2800.59(A)(1) & (A)(2).
19
La.R.S. 9:2800.59(A)(3).

6

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 these ladders and that all
had substantially the same design which had not changed in the last 20 years. The
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.
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-Utility Analysis
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”

7

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 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 drift 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;20 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.
Both Mr. Faddis, a mechanical engineering expert, and Mr. Sader testified
that, by design, the ladder must have coast and drift. Mr. Sader said that “the
stopping 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,
“[b]y 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.

20
La.R.S. 9:2800.56(2).

8

Accordingly, the Defendants presented sufficient evidence to prove that the
Plaintiffs would not have prevailed against Sponco on this particular issue.
Mr. Killingworth 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,
Mr. Sader and Dr. John Darrell Morgan, an expert in electrical engineering 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 time which
incorporated the design. Sponco’s IH (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

9

“[I]f, 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 same manufacturer,” it is unreasonably dangerous in construction or
composition.21
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 be 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 defect 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 & 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 dangerous

21
La.R.S. 9:2800.55.

10

characteristic; namely, that the ladder was unreasonably dangerous in design
because it was not insulated.
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.
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 their 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 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.

11

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. Furthermore, 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 OSHA’s safety rule,
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.
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.22 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 plaintiff’s injuries.23

Duty
“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.”24 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.

22
Manning v. Dillard Dep’t Stores, 99-1179 (La. 12/10/99), 753 So.2d 163.
23
Cormier v. Albear, 99-1206 (La.App. 3 Cir. 2/2/00), 758 So.2d 250.
24
Manning, 753 So.2d at 165.

12

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

Breach
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 complied with
OSHA’s regulations, placing the billboards a sufficient distance away from the
power lines. Mr. Frederick Brooks, Defendants’ expert in electrical engineering,
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
7½ feet from power lines, and Lucky’s closest sign provided an 8½ 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 positioned 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 of Duty
We must now address whether the risk of Melvin’s injuries were within the
contemplation of Lucky’s duty. “[T]he scope of the duty inquiry is ultimately a
question of policy as to whether the particular risk falls within the scope of the

13

duty.”25 We must examine how easily we can associate his injuries with Lucky’s
conduct.26
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 particular risk that someone performing maintenance work on
the signs could come into contact with the power lines.

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.

SIGNKO’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.

25
Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991).
26
Id.

14

Duty
Louisiana Workers’ Compensation Law requires employers to do everything
reasonably necessary to protect the life, health, safety, and welfare of its
employees.27 This includes providing proper safety devices and safeguards to
render the employment safe, considering the normal hazards of such
employment.28

Scope
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
While Mr. Kojis testified that Signko employed a ten-foot rule for
installations of new signs, he never 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 happened 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.

27
La.R.S. 23:13.
28
Id.

15

CAUSATION – SUBSTANTIAL FACTOR TEST
Cause-in-fact is one of the essential elements of the Plaintiffs’ claim.29 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.30
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,
allegedly, precipitated an accident, our courts have fashioned a method that is
more effective than the “but for” test in establishing cause-in-fact.31 This method
is often referred to as the “substantial factor test.”32
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 OSHA violation, and Signko
provided Melvin with an uninsulated ladder to perform his job, despite the
availability of insulated ones; and, finally, Sponco manufactured an uninsulated
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
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 fact’s

29
Perkins v. Entergy Corp., 00-1372 (La. 3/23/01), 782 So.2d 606.
30
Boykin v. Louisiana Transit Co., 96-1932 (La. 3/4/98), 707 So.2d 1225.
31
Perkins, 782 So.2d 606.
32
Id.

16

allocation of fault when it is clearly wrong or manifestly erroneous.”33 In testing
the jury’s allocation 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:34
(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. 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.

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. Brooks 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

33
Duncan v. Kansas City S. Ry. Co., 00-66, pp. 10-11 (La. 10/30/00), 773
So.2d 670, 680 (citations omitted).
34
469 So.2d 967, 974 (La.1985).

17

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 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
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. Hayes’ 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

18

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
grant a JNOV, and it must resolve all inferences or factual questions in favor of
the non-moving party.35
We review the trial court’s grant of JNOV 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.36
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.

ADMISSIBILITY OF EXPERT TESTIMONY
Louisiana Code of Evidence Article 702 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 Daubert v. Merrell Dow Pharmaceuticals, Inc.,37 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.

35
VaSalle v. Wal-Mart Stores, Inc., 01-462 (La. 11/28/01), 801 So.2d 331.
36
Id.
37
509 U.S. 579, 113 S.Ct. 2786 (1993).

19

Louisiana adopted this holding in State v. Foret.38 Daubert 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.39

Stephen Killingsworth
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 Daubert/Foret tests. However, both
Foret, as well as the United States Supreme Court’s opinion in Khumo Tire Co. v.
Carmichael,40 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.
Mr. Killingsworth provided instructive and informative testimony to help
the jury understand the aerial ladder’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. Killingsworth’s testimony.
James Sobek
The trial court qualified Plaintiffs’ witness, Mr. James Sobek, as an expert
physicist and professional engineer with a specialty in human vision. Mr. Sobek

38
628 So.2d 1116 (La.1993).
39
Daubert, 509 U.S. 570
40
526 U.S. 137, 119 S.Ct. 1167 (1999).

20

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.
He 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.
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
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
The trial court has broad discretion to award and assess costs, and we will
not disturb its ruling absent an abuse of discretion.41 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.42 The Defendants urge that they
should not have to pay Killingsworth’s and Sobek’s fees because their testimony
should have been inadmissible. 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.

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.

41
Id.
42
Trans Louisiana Gas Co. v. Heard, 629 So.2d 500 (La.App. 3 Cir. 1993).

21

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 benefits inure to the
plaintiff, not to the tortfeasor.43 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.
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 not have benefitted from the workers’ compensation carrier’s payments.
Accordingly, the Defendants cannot claim the benefit either.
The Defendants argue that Gagnard v. Baldrige44 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.”45 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. Thus, we find no error in the trial court’s ruling.

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 Civil Code
Article 2315 delineates the classes of persons who may recover for these damages.
The first is “[t]he surviving spouse and child or children of the deceased, or either

43
Taylor v. Premier Ins. Co. of Massachusetts, 98-1934 (La.App. 3 Cir.
6/30/99), 742 So.2d 35.
44
612 So.2d 732 (La.1993).
45
Id. at 736 (emphasis added).

22

the spouse or the child or children.”46 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.
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 it is not necessarily an absolute nullity but must be
reviewed under the circumstances surrounding the specific case that
is before it.

....

In Lehr vs. Robertson 463 U.S. 248 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 Caban vs. Mohammad, 441 U.S. 380 that
parental rights do not spring full blown from biological connection
between parent and child. They require relationships more enduring.
Moreover, it is the actual relationship which demonstrates a
commitment to the responsibilities of parenthood, and has been the
focal point in seeking to determine the rights and protections which
should be afforded to natural fathers.

....

The court notes, and based on the evidence that was heard at
the jury trial, that there was no doubt that Mr. Guidry spent
significant time with Randi, treated her no doubt as his daughter,
raised her involved in extra-curricular sports and activities.

46
La.Civ.Code art. 2315.1; La.Civ.Code art. 2315.2.

23

Nonetheless, the trial court did not have the benefit of our supreme court’s
latest pronouncement on this issue. In Turner v. Busby,47 a decision rendered after
the trial court’s ruling, a divided supreme court held that “an Article 203 formal
acknowledgment absent a biological relationship is a nullity.”48 In this instance,
Melvin’s acknowledgment by signing Randi’s birth certificate and his execution
of an Act of Acknowledgment of Paternity are both forms of an Article 203 formal
acknowledgment. Given Randi’s and Julie’s admissions that Melvin had no
biological relationship to Randi, we must find that his acknowledgment is a
nullity. Accordingly, we are compelled to reverse the trial court’s ruling. Randi
may not recover wrongful death and survival damages for Melvin’s death. Thus,
we reverse the $70,000.00 in damages awarded to Randi Guidry.

QUANTUM OF DAMAGES
Loss of Support
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.
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 warranted on the record as a
whole.”49 “Credibility determinations are for the trier of fact, even as to the
evaluation of expert witness testimony. A fact-finder may accept or reject the

47
03-3444 (La. 9/9/2004), 883 So.2d 412.
48
Id. at 419.
49
Green v. K-Mart Corp., 03-2495, p. 5 (La. 5/25/04), 874 So.2d 838, 843.

24

opinion expressed by an expert, in whole or in part.”50 Thus, we find no error in
the jury’s determination.
Pre-Death Pain and Suffering
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.51 Indeed, we so find in the instant case. Mr.
Hayes, who came out of the store immediately after the accident, testified:

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, I
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.

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.

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

50
Id. at 843.
51
Young v. Fitzpatrick, 03-1038 (La.App. 3 Cir. 2/4/04), 865 So.2d 969.

25

consciousness, the above testimony reveals that he did have awareness
immediately following the accident.
The Plaintiffs cite Strawder v. Zapata Haynie Corp.52 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 v. 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.
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 Anguish from Malpractice
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

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.

52
94-453 (La.App. 3 Cir. 11/2/94), 649 So.2d 554.

26

NUMBER 04-325

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

JULIE GUIDRY, ET AL.

Plaintiffs - Appellants

Versus

COREGIS INSURANCE COMPANY, ET AL.

Defendants - Appellants

On appeal from the Fourteenth Judicial District Court [No.98-4848], for the
Parish of Calcasieu, State of Louisiana; the Honorable G. Michael Canaday, District
Judge, presiding.

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. Busby1 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.
Louisiana law classifies children as either legitimate, illegitimate, or
legitimated.2 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

1
03-3444 (La. 9/9/2004), 883 So.2d 412.
2
Id.

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 he
is deceased, his heirs or legatees to seek to disavow a legitimate child’s paternity.3
Conversely, La.Civ.Code art. 207 provides that “[e]very claim, set up by illegitimate
children, may be contested by those who have any interest therein.” (Emphasis
added).
In Turner, La.Civ.Code art. 207 permitted the defendants to attack McWright’s
claim because he was a formally 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 policy.”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 biological relationship is a nullity.”5 (Emphasis added.)
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 “[w]ithout 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
illegitimated child under Article 203, his claim as an illegitimate child may be subject

3
La.Civ.Code art. 187; La.Civ.Code art. 190.
4
Rousseve v. Jones, 97-1149, p.7 (La. 12/2/97), 704 So.2d 229, 233.
5
Turner, 883 So.2d 412.

2

to scrutiny provided the defendants have probed all other requirements of Article
207.”6 (Emphasis added.)
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 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.
Louisiana Civil Code arts. 193 through 197 provide that a party can prove
legitimation through, inter alia, “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; . . . .

6
Id. at 418.

3

(Emphasis added.) This language implicitly recognizes that legitimated children are
not necessarily biological children. Moreover, none of the methods of legitimating
a child require proof of a biological relationship.
The method Melvin chose to legitimate Randi is that provided in La.Civ.Code
art. 198:

Illegitimate children are legitimated by the subsequent marriage
of their father and mother, whenever the 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 La.Civ.Code arts. 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 Turner’s umbrella to be held over Randi’s head,
denying her benefits for the loss of the man she knew to be and treated as her father.

4