Tessica Spears v. City of Scott

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-230

TESSICA SPEARS, ET AL.

VERSUS

CITY OF SCOTT, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. 2001-2238,
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Michael G. Sullivan, and
Elizabeth A. Pickett, Judges.

REVERSED IN PART, AMENDED IN PART, AND RENDERED.

Barton W. Bernard
Philip C. Kobetz
Attorneys at Law
120 Representative Row
Lafayette, Louisiana 70508
(337) 593-1123
Counsel for Plaintiff/Appellant/Appellee:
Tessica Spears

Peter C. Piccione, Jr.
Attorney at Law
Post Office Box 5150
Lafayette, Louisiana 70502-5150
(337) 234-1132
Counsel for Plaintiffs/Appellants/Appellees:
Barbara Autin
David Autin

Paul A. Holmes
J. Scott Thomas
Rodd Anthony Naquin
Attorneys at Law
700 North Tenth Street
Baton Rouge, Louisiana 70821
(225) 344-5001
Counsel for Defendants/Appellees/Appellants:
Louisiana Municipal Risk Management
Jerry D. Braun
City of Scott

SULLIVAN, Judge.

This case involves a collision between an unmarked police vehicle and another

vehicle at the intersection of Rue de Belier Road and West Congress Street in

Lafayette. After a trial on the merits, the trial court assessed 50% fault to each driver

and awarded damages. All parties appeal. For the following reasons, we reverse the

assessment of fault to Plaintiff and increase the damages awarded as set forth herein.

Facts

At approximately 7:45 a.m. on September 18, 2000, Jerry Braun, a detective

with the Scott Police Department, was driving to his office in an unmarked vehicle.

While driving, he heard a dispatch call to Scott Police Officer Deon Bearb to respond

to a fight in progress. Detective Braun was not assigned to go to the scene, but he

called the dispatcher and advised that he was responding to assist Officer Bearb. He

testified that he did this because Detective Bearb was working by himself that

morning. As he responded, Detective Braun activated his emergency lights and siren.

He testified that the siren is automatically activated when the emergency lights are

turned on and that the siren speaker on an unmarked unit is under the hood of the

vehicle.

Detective Braun testified that he approached the intersection in the northbound

lane of Rue de Belier. There was traffic in the northbound lane and the left turn lane;

it was stopped for the traffic light which was red. As he got closer to the intersection,

Detective Braun moved into the turn lane. After making sure no traffic was in the

southbound lane, he moved into that lane and drove around the traffic in front of him.

A bread truck was first in the left turn lane. When Detective Braun arrived at

the intersection, the light was still red for the northbound traffic on Rue de Belier.

He testified that, when he was adjacent to the bread truck, he went into the

intersection at a forty-five-degree angle in front of the bread truck and came to a

complete stop, explaining that he went into the intersection at an angle so westbound

traffic could see his lights. At that point, he stopped and looked both ways to make

sure no cars were coming and the intersection was clear. After he stopped, he

proceeded into the intersection and was broadsided by a vehicle driven by Barbara

Autin. Detective Braun testified that Ms. Autin’s vehicle was not in the intersection

when he entered it.

Ms. Autin testified that she was traveling west on West Congress. Before she

entered the intersection, she heard a “faint” siren. She testified that she slowed down

when she heard the siren. She heard the siren two to three seconds before she entered

the intersection and heard it until the accident occurred, but it sounded “far away”;

she could not tell where it was coming from. Ms. Autin testified that she had time to

look to her left and right only once for an emergency vehicle because she was so

close to the intersection, explaining: “I heard the siren and looked from side to side.

I glanced very quickly to make sure there was nothing coming. I did not see

anything; my path was clear so I proceeded through the intersection and the accident

occurred.” She further testified that she did not see anything but the bread truck.

Regarding Detective Braun’s testimony that he parked his vehicle in front of

the bread truck, Ms. Autin testified that she would have seen his vehicle and would

have stopped, if he had parked in the manner he described. She also testified that,

after Detective Braun got out of his vehicle, he raised his hands, said that he was

sorry and the accident was his fault.

When Ms. Autin heard the siren, she asked her daughter, Tessica Spears, a

passenger in her vehicle, if she heard it. Ms. Spears testified she heard “a faint siren,”

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which she thought was “miles away.” She “had no idea where the siren was coming

from.” She looked around for the source of the siren until they entered the

intersection but did not see anything before the collision occurred. Ms. Spears heard

the siren two to three seconds “at the most” before the collision. She testified that she

did not see anything but the bread truck in the intersection and that she did not see

Detective Braun’s vehicle until the collision.

Jude Landry was driving behind Ms. Autin as she approached the intersection.

He testified that he did not hear a siren before the accident. He described the accident

as occurring in a “flash.” He did not believe Detective Braun yielded before entering

the intersection because the accident happened so fast. Mr. Landry testified that,

from his point of view, it appeared as though Detective Braun moved from the

northbound turn lane into the southbound lane and accelerated as he went around the

bread truck.

Ronnie Trosclair was the driver of the bread truck stopped in the northbound

turn lane at the intersection. He testified that he heard a siren but “couldn’t figure out

where it was coming from.” He did not notice the unmarked police car or the siren

getting louder until it was along the side of his vehicle. He turned and looked to his

left when Detective Braun was next to his vehicle. It was not until then that he

realized where the siren was coming from.

Mr. Trosclair testified that Detective Braun did not stop at the intersection, but

slowed to a rolling stop. Mr. Trosclair further testified that, when the right front

passenger seat of Detective Braun’s vehicle was between the window and the front

of his bread truck, Detective Braun “punched it” and drove into the intersection. He

denied that Detective Braun positioned his vehicle at a forty-five-degree angle in

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front of his truck and stopped. He also testified that he did not believe Detective

Braun could see around his truck when he accelerated into the intersection. However,

on questioning by the trial judge, he agreed that he did not know if, from his vantage

point, Detective Braun could see clear of his truck.

After the accident, Mr. Trosclair told Detective Braun that Ms. Autin never saw

him because of his bread truck. He testified that Detective Braun responded the

accident was his fault because the driver of the other car never saw him.

Van Romero was standing in the parking lot of the Acadiana Food Mart which

is in the northwest quadrant of this intersection. He testified that the siren on

Detective Braun’s vehicle was not muffled and that he had no problem hearing it. He

further testified that Detective Braun’s emergency lights on the dash of the car and

its “wigwag” headlights were on. Mr. Romero testified that he saw Detective Braun

come around the bread truck and come to a complete stop so he could see any

vehicles entering the intersection. He also testified that the hood ornament on

Detective Braun’s vehicle was pointing at Ms. Autin’s lane of travel. In his opinion,

Detective Braun stayed parked long enough to make sure no traffic was coming

through the intersection before he entered it. He also stated that the front of Detective

Braun’s vehicle was beyond the bread truck when it stopped. However, on cross-

examination, Mr. Romero admitted that in his statement to the investigating police

officer he stated that Detective Braun came to a stop at the intersection for the red

light, not in front of the bread truck.

Mr. Romero testified that he did not see any traffic moving into the intersection

as Detective Braun took off from his stop. He further testified that he did not see

Ms. Autin’s vehicle until two seconds before the accident occurred, explaining:

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“when the police officer came across the intersection, I was following his car and she

was right there, and they hit.”

Michael Barrett was also standing in the parking lot of the Acadiana Food Mart

when the accident occurred. He testified he heard a police siren coming from the

south and saw a dark-blue Crown Victoria approaching the intersection with its

emergency lights on; the vehicle stopped and angled toward the intersection. He

testified that the vehicle stopped even with the white stop line for the left turn lane

of the northbound traffic on Rue de Belier. He explained that the Crown Victoria was

“kind of” angled toward the eastbound traffic, but it was not a big angle. He further

testified that the vehicle was waiting for traffic to stop, and once the traffic stopped,

it proceeded into the intersection. He saw Ms. Autin’s vehicle when she was near the

stop line for the westbound traffic on Congress Street.

The trial judge assessed 50% fault each to Detective Braun and to Ms. Autin

and made the following findings regarding the allocation of fault:

The evidence showed that [Detective Braun’s] lights and siren
[were] on. There was conflicting evidence as to whether he came to a
complete stop prior to entering the intersection. He did admit that he did
not continue to look left and right as he crossed the intersection once he
ascertained it to be clear.

Ms. Autin testified that she did hear the siren, as did her daughter,
Tessica. Yet she proceeded through the intersection without
ascertaining where the siren was coming from and if it was safe to
proceed through the intersection in violation of case law concerning
vehicle procedure in that type of situation.

When Ms. Autin saw the bread truck at the intersection she should
have looked back again to insure that the policeman was not being
blocked by the truck. She did hear the siren, but she failed to do so.

Damages were awarded to Ms. Autin, her husband, Ms. Spears, and

Ms. Spears’s son. All parties appeal.

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Standard of Review

In Bonin v. Ferrellgas, Inc., 03-3024 (La. 7/2/04), 877 So.2d 89, the supreme

court reiterated that the standard of review on appeal is the manifest error standard.

In order for an appellate court to reverse a finding by the fact finder, it must review

the entire record and find that “a reasonable factual basis does not exist for the

finding” and that “the record establishes that the fact finder is clearly wrong or

manifestly erroneous.” Id. at 94-95. It is not the appellate court’s role to “re-weigh

the evidence or to substitute its own factual findings just because it would have

decided the case differently.” Id. at 95. Instead, the appellate court “must give great

weight to factual conclusions of the trier of fact.” Canter v. Koehring, 283 So.2d

716, 724 (La.1973). Reasonable evaluations of credibility and reasonable inferences

of fact should not be disturbed where there is conflicting testimony or other evidence,

even if the appellate court “may feel that its own evaluations and inferences are as

reasonable.” Id.

Courts of appeal have a constitutional duty to review facts. To perform this

duty properly, appellate courts must determine whether the trial court’s conclusions

were “clearly wrong based on the evidence or clearly without evidentiary support.”

Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, 93-3110, 93-3112,

pp. 8-9 (La. 7/5/94), 639 So.2d 216, 221. We remain mindful that “when two

permissible views of the evidence exist, the fact finder’s choice between them cannot

be manifestly erroneous or clearly wrong.” Bonin, 877 So.2d at 95.

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Discussion

Allocation of Fault

Plaintiffs and Defendants urge that the trial court erred in its allocation of fault.

In suits for personal injury, Louisiana Civil Code article 2323 requires the trier of fact

to determine “the degree or percentage of negligence of all persons causing or

contributing to the injury.” On appeal, the trier of fact’s allocation of fault is entitled

to great deference and should be affirmed unless it is manifestly erroneous or clearly

wrong. Gregor v. Argenot Great Cent. Ins. Co., 02-1138 (La. 5/20/03), 851 So.2d

959.

In Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967

(La.1985), the supreme court held that the trier-of-fact must consider both the nature

of the conduct of all parties and the extent of the causal relationship between the

conduct and the damages claimed when allocating fault. The court outlined the

factors which may influence the degree of fault assigned:

(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
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.

Id. at 974.

Drivers of authorized emergency vehicles are granted privileges when

responding to emergencies, if certain conditions are met. La.R.S. 32:24 provides in

pertinent part:

A. The driver of an authorized emergency vehicle, when
responding to an emergency call, or when in the pursuit of an actual or

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suspected violator of the law, or when responding to, but not upon
returning from, a fire alarm, may exercise the privileges set forth in this
Section, but subject to the conditions herein stated.

B. The driver of an authorized emergency vehicle may:

....

(2) Proceed past a red or stop signal or stop sign, but only after
slowing down or stopping as may be necessary for safe operation;

....

C. The exceptions herein granted to an authorized emergency
vehicle shall apply only when such vehicle is making use of audible or
visual signals sufficient to warn motorists of their approach, except
that a police vehicle need not be equipped with or display a red light
visible from in front of the vehicle.

D. The foregoing provisions shall not relieve the driver of an
authorized vehicle from the duty to drive with due regard for the safety
of all persons, nor shall such provisions protect the driver from the
consequences of his reckless disregard for the safety of others.

(Emphasis added.)

In Lenard v. Dilley, 01-1522 (La. 1/15/02), 805 So.2d 175, the supreme court

held that La.R.S. 32:24 contains two alternate standards of care depending on the

circumstances. If the requirements of Subsections (A), (B), and (C) of the statute are

met, an emergency vehicle driver can only be held liable for actions which constitute

“reckless disregard for the safety of others,” i.e., gross negligence. Id. at 180. If

these requirements are not met, an emergency vehicle driver is gauged by an ordinary

standard of “due care.” Id.

Initially, we observe that the trial court did not err in determining that Detective

Braun was properly responding to an emergency call to which the provisions of

La.R.S. 32:24 were applicable. However, we find that the requirements of Subsection

(C) of La.R.S. 32:24 were not met. Subsection (C) requires the audible signal of an

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emergency vehicle to be “sufficient to warn motorists of their approach.” While

Ms. Autin heard Detective Braun’s siren, it was “faint” and sounded “far away.”

Neither she nor Ms. Spears could determine where the siren was coming from;

Mr. Trosclair did not realize where the siren was coming from until Detective Braun

was along side his vehicle at the intersection; and Mr. Landry never heard a siren.

Mr. Romero and Mr. Barrett testified that they heard the siren clearly.

However, they were not inside vehicles, and they were on the same side of the

intersection and the traffic as Detective Braun. Their ability to hear Detective

Braun’s siren was not affected by being inside an enclosed vehicle. More

importantly, the sight and sound of Detective Braun’s vehicle were not blocked by

the northbound traffic at the intersection, which included Mr. Trosclair’s bread truck,

a twelve foot high, sixteen foot long vehicle.

None of the motorists who heard Detective Braun’s siren could determine its

location. The “faint” sound of Detective Braun’s siren was not sufficient to warn

Ms. Autin or other motorists of his immediate approach to the intersection.

Therefore, it did not meet the requirements of La.R.S. 32:24(C), and the standard

applicable to Detective Braun’s actions is ordinary negligence.

Even if Detective Braun’s siren was sufficient under Subsection (C), we find

his actions constituted gross negligence. Subsection (B)(2) of La.R.S. 32:24 allows

the driver of an emergency vehicle to proceed past a stop signal, but only after

slowing down or stopping “as may be necessary for safe operation.” The trial court

found that Detective Braun “punched” it after coming to a rolling stop at the

intersection and that he did not continue to monitor traffic when he entered the

intersection, even though he was traveling through the intersection against a red light.

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Detective Braun testified that he did not enter the intersection until he knew

that all traffic at the intersection stopped and that he never saw Ms. Autin’s vehicle

before he entered the intersection. The evidence established that there was one

westbound vehicle stopped at the intersection when Detective Braun entered the

intersection. That vehicle was in the left turn lane, waiting to turn south onto Rue de

Belier. There were two other lanes in which westbound traffic approaching the

intersection could have been traveling. Detective Braun knew that westbound drivers

approaching the intersection could not see his vehicle behind the bread truck and

initially approached the intersection with caution. However, he abandoned that

caution once he entered the intersection. His failure to continue monitoring the

traffic, coupled with his acceleration into the intersection, constituted gross

negligence.

The trial court concluded that Ms. Autin proceeded through this intersection

in violation of the law because she did so without determining where the siren was

coming from. A driver is required to pull over and stop “upon the immediate

approach of an authorized emergency vehicle.” The siren on Detective Braun’s

vehicle did not warn Ms. Autin that an emergency vehicle was immediately

approaching the intersection; therefore, she was not obligated to yield the right-of-

way to Detective Braun as provided in La.R.S. 32:125.

The trial court also faulted Ms. Autin for proceeding through the intersection

without looking to insure the emergency vehicle was not blocked by the bread truck.

A diagram of the accident scene shows the point of impact in Ms. Autin’s lane of

travel less than midway into the intersection. Based on Mr. Trosclair’s testimony,

which the trial court accepted, that Detective Braun accelerated as he entered the

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intersection and Ms. Autin’s testimony that she only had time to look left and right

once before entering the intersection, the evidence does not establish that Ms. Autin

could have done anything to prevent the accident if she had looked at Mr. Trosclair’s

bread truck once she entered the intersection.

Applying the factors identified in Watson, we conclude the trial court’s

allocation of fault was clearly wrong. With regard to whether the conduct resulted

from inadvertence or involved an awareness of the danger, Detective Braun realized

the danger presented by his entering the intersection against the red light and the

bread truck’s presence to drivers entering the intersection as opposed to Ms. Autin

who did not realize that the “faint” siren which sounded “far away” was approaching

the intersection. Detective Braun abandoned his caution for the situation when he

entered the intersection instead of increasing it as the situation warranted.

The risk created by Detective Braun’s actions was great. He knew his visibility

was blocked by the northbound traffic, especially the bread truck at the intersection,

and he should have anticipated that the sound of his siren was also blocked by the

traffic. Even though he knew traffic approaching from the west could not see him,

he did not come to a complete stop and his testimony regarding where he allegedly

stopped at the intersection is disputed by all three witnesses who testified on that

issue. We find the risk created by Detective Braun’s actions was greater than

Ms. Autin’s actions in failing to pull aside upon hearing a “faint” siren because she

was unable to appreciate the potential danger of the situation.

The third Watson fact is the significance of what was sought by the conduct.

Detective Braun was responding to assist another officer; however, the evidence

established that another officer had been dispatched to assist Officer Bearb.

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Therefore, any need for his assistance was not urgent. Ms. Autin was driving her

grandson, Kyle, to school. We find that Detective Braun’s response to assist Officer

Bearb was initially of greater significance than Ms. Autin’s driving Kyle to school.

However, that significance was greatly reduced before the accident occurred.

Detective Braun was clearly in a superior position to understand the risks

presented in the situation because he realized a westbound driver’s ability to

determine his location at the intersection was impeded by the northbound traffic and

the location of the bread truck. He was responding to an emergency, but, as

previously noted, another officer had been dispatched to assist Deputy Bearb.

Therefore, no extenuating circumstances existed which justified Detective Braun’s

proceeding through the intersection without exercising proper caution for the safety

of the traffic in or approaching the intersection.

Based on our consideration of these factors and the actions of the parties in

relation thereto, we reverse the allocation of 50% fault to Ms. Autin and reduce it to

0%, relieving her from fault.

The City of Scott cites Matthews v. Maddie, 01-1535 (La.App. 1 Cir. 6/21/02),

822 So.2d 739, writ denied, 02-2420 (La. 11/22/02), 829 So.2d 1052, and argues that

Detective Braun’s actions did not amount to gross negligence. The ambulance driver

in Matthews eased his emergency vehicle into the intersection, driving only two to

three miles per hour, whereas Detective Braun sped into the intersection without

maintaining a lookout for oncoming traffic. Matthews does not support the City of

Scott’s position.

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Damages

The Autins assign as error their respective awards for loss of consortium and

pain and suffering. Ms. Spears also assigns as error some of her damage awards.

When reviewing general damage awards, an appellate court is not to decide what it

considers to be an appropriate award. Instead, the court is to review the exercise of

the discretion by the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257

(La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994). If there is no clear

abuse of discretion, the awards must stand. Coco v. Winston Indus., Inc., 341 So.2d

332 (La.1976).

The Autins

Ms. Autin urges that the trial court’s general damage award of $5,000.00 for

her injuries was abusively low. As a result of the collision, the airbags in her car were

activated, causing a burn on one of her arms. She had to pop her airbag to put her

gearshift in park and turn off her vehicle’s ignition. When she did, the powder in the

airbag created the illusion of smoke, causing her to believe her car was on fire while

Ms. Spears and Kyle were still in their seats. She struggled to get herself and Kyle

out of the car and to assist Ms. Spears who was screaming. She did not realize the car

was not on fire until after she got Kyle out of the car and was attempting to assist

Ms. Spears.

Ms. Autin was transported to the hospital by ambulance where she was treated

in the emergency room. Thereafter, she saw Dr. Patrick A. Sonnier, complaining of

pain in her ribs, hips, legs, lower back, neck, and right groin area. She testified that

the use of her right arm was very limited due to soreness and pain. After the accident,

she could not do anything because she hurt and was stiff and sore all over. She was

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unable to lie down and had to sit in her recliner most of the time. She was unable to

engage in sexual relations with Mr. Autin. Her youngest daughter got married in

October 2000. She had planned to prepare the food and decorations for the wedding

but was unable to do so.

Ms. Autin attended physical therapy as prescribed by Dr. Sonnier over a period

of five months for her neck and shoulder pain which persisted after her initial

treatment by Dr. Sonnier. At first, the physical therapy increased her pain, but

eventually it relieved the soreness and pain in her neck and shoulder. Upon release

by her physical therapist, she was given exercises to do at home and advised to use

heat or ice whenever she experiences pain in those areas. Ms. Autin testified that she

continues to experience pain in her neck and shoulder when there is a change in the

weather. When that occurs, she applies heat and/or ice to the affected area to obtain

relief.

The trial court’s award was based in part on Ms. Autin’s statements to

Dr. Sonnier on November 1, 2000 that she was feeling better and doing housework.

Her medical records establish that she felt better, but was not without pain, as of that

date and thereafter. Dr. Sonnier’s subsequent notes show that Ms. Autin continued

to have neck pain, as well as pain in her ribs and elbow. She did not complete

physical therapy until March 2001.

We agree with Ms. Autin that the trial court’s award of $5,000.00 for her pain

and suffering was abusively low and increase her award to $12,000.00.

Mr. Autin argues that the trial court’s award of $6,000.00 for his loss of

consortium claim should be increased to $10,000.00.

Loss of consortium is more than just a loss of general overall happiness,
it also includes love and affection, society and companionship, sexual

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relations, the right of performance of material services, the right of
support, aid, and assistance, and felicity. The trier of fact is given much
discretion in awards for loss of consortium and will not be overturned
on appeal in the absence of manifest error.

Creel v. St. Charles Gaming Co., 97-994, p. 11 (La.App. 3 Cir. 2/4/98), 707 So.2d

475, 481 (quoting Bellard v. South Cent. Bell Tel. Co., 96-1426, p. 21 (La.App. 3 Cir.

8/27/97), 702 So.2d 695, 707) (citations omitted).

After the accident, Mr. Autin cooked, cleaned, drove Ms. Autin and Ms. Spears

to doctor appointments, assisted them in whatever manner needed, and assisted in

Kyle’s care. Ms. Autin’s mother assisted him, as did the Autins’ other two daughters.

Mr. Autin testified that he basically did everything around the house until February

or March 2001 and that he continued to assist around the house until Ms. Autin was

completely recuperated in the summer of 2001. He also testified that his and Ms.

Autin’s sexual relationship was affected for the same period of time.

The trial court awarded Mr. Autin $6,000.00 for his loss of consortium claim.

While another trier of fact may have awarded a larger amount, we cannot say that the

trial court’s award is manifestly erroneous.

Ms. Spears

Immediately after the accident, Ms. Spears felt pain in her right hand and

shoulder. She had to be extricated from the car by the paramedics and was transported

by ambulance to the hospital. After examining her right hand, the emergency room

doctor called in Dr. Hugh Larriviere, an orthopedic surgeon, to treat her.

Dr. Larriviere immediately performed surgery on Ms. Spears’s right ring finger to

realign the middle joint which had been fractured. During the surgery, he inserted a

pin to stabilize the realigned bone. Ms. Spears also had a chip fragment where the

tendon attaches to the last joint of her ring finger. The fragment was in close

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proximity to a bundle of nerves on the bottom side of Ms. Spears’s finger; it caused

her pain, numbness, and tenderness, especially when touched. In March 2001, Dr.

Larriviere performed a second surgery to remove the bone fragment, which alleviated

the pain and discomfort it caused.

On April 24, 2001, Dr. Larriviere’s examination of the finger showed that the

incision from this second surgery was completely healed and that Ms. Spears had no

pain to pressure over the bottom of the finger where the bone fragment had been. She

could grasp his hand without pain. Dr. Larriviere testified that she still had a great

deal of limitation with her range of motion in flexion and extension of her finger. On

that date, she was no longer taking any pain medication and was sleeping all night.

Dr. Larriviere thought she was doing well and told her to do whatever activities she

could tolerate.

On August 30, 2001, Dr. Larriviere believed Ms. Spears had reached maximum

medical improvement. He instructed her to continue exercising her finger at home

twice a day and told her to use a night splint on her finger. He informed Ms. Spears

that her finger might become more painful over time and if so, the finger could be

fused in a bent position to allow her to hold things in her hand.

In July 2002, Dr. Larriviere performed a follow-up examination on

Ms. Spears’s finger. The finger had a good appearance, but its range of motion was

reduced. She had a pretty good grip with the finger, and there was no hypersensitivity

over the scar. Dr. Larriviere testified that she indicated to him that she had hardly any

pain at all. He felt like she was becoming adapted to her bent finger and that she

might not have to have it fused. Dr. Larriviere testified that, if she eventually requires

a fusion, there is no guarantee the joint will fuse.

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Dr. Larriviere retired, and Dr. Harold Granger became Ms. Spears’s treating

physician. Ms. Spears first saw Dr. Granger in early 2003. Dr. Granger testified that

Ms. Spears continues to have pain in her ring finger, primarily in the middle joint, as

well as pain and stiffness in her little finger and wrist. He also testified that she has

problems with the top of her ring finger.

Dr. Granger discussed the possibility of a third surgery, a capsular release, to

ease the pain in Ms. Spears’s finger. However, he testified that he could not

guarantee this surgery would relieve her pain and opined there was only a 50%

chance it would improve her situation. He also indicated the surgery might actually

worsen the tightness in her finger. Dr. Granger related that Ms. Spears had recently

shown an interest in the surgery, but her interest in the surgery is greater than his.

Dr. Granger also discussed the possibility of a fusion to relieve the pain in

Ms. Spears’s finger. In Dr. Granger’s opinion, this option is very undesirable, and

he testified he would almost prefer amputating the finger through the middle joint to

fusing the joint. He further testified that he would only recommend amputation if

Ms. Spears’s pain was severe and unrelenting. He did not testify that Ms. Spears’s

pain was of such magnitude.

The trial court awarded Ms. Spears future medical expenses in the amount of

$1,000.00 for future office visits in light of her continuing complaints of pain in her

finger and wrist. Ms. Spears argues she should have been awarded at least

$11,000.00, which is the amount Dr. Granger estimated would be required for to

perform a fusion on her finger.

17

In Veazey v. State Farm Mutual Automobile Insurance Co., 587 So.2d 5, 8

(La.App. 3 Cir.1991) (citations omitted), this court addressed the proof required for

an award of future medical expenses, explaining:

Future medical expenses, like any other damages must be
established with some degree of certainty. The plaintiff must show that,
more probably than not, these expenses will be incurred. Awards will
not be made in the absence of medical testimony that they are indicated
and setting out their probable cost. An award for future medical
expenses cannot be based on mere speculation of the jury. Much
stronger proof, such as medical testimony of the specific expenses to
arise, should be required for such an award.

Dr. Granger discussed the possibility of future surgery but did not recommend

surgery, and he was uncertain that any of the surgeries he discussed would benefit

Ms. Spears. His testimony did not establish that Ms. Spears would more probably

than not incur expenses for another surgery. Importantly, Ms. Spears testified that

she would only “possibly” consider having additional surgery on her finger if the pain

increased. The trial court did not err in awarding Ms. Spears $1,000.00 for future

medical treatment.

Ms. Spears also argues that the trial court’s refusal to award her past lost wages

was error. Damages for past lost wages must be able to be calculated with

mathematical certainty from the proof submitted at trial. Such an award is an

exception to the much discretion award. Sengsouly v. Allstate Ins. Co., 99-22

(La.App. 3 Cir. 6/9/99), 744 So.2d 649, writ denied, 99-2526 (La.11/19/99), 749

So.2d 677. “[T]he record must provide a factual basis for the award.” Myers v.

Broussard, 96-1634, p. 17 (La.App. 3 Cir. 5/21/97), 696 So.2d 88, 97.

The trial court concluded that Ms. Spears was voluntarily unemployed and did

not award her past lost wages. In reaching this conclusion, the trial court observed

that she was not working at the time of the accident, had not worked since the birth

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of her son, who was four years old at the time of the accident, had allowed her

driver’s license to expire before the accident, did not renew her license after the

accident, had not attempted to return to work after being released by her treating

physician, and began home schooling her son after the accident and continued to do

so at the time of the trial.

Ms. Spears and Ms. Autin testified that she did not return to work when Kyle

started school in August 2000 because her younger sister was getting married in

October and she was helping her mother plan and prepare for the wedding.

Ms. Spears further testified that in 2002 she attempted to perform activities she would

be expected to perform at a job, but she could not perform the activities for extended

periods of time due to the pain the activities caused in her fingers and wrist.

In light of Ms. Spears’s pre-accident work record and the fact that she home

schooled her son after the accident through the time of the trial, we find no error with

the trial court’s refusal to award past lost wages.

Ms. Spears also urges that her award of $50,000.00 for general damages should

be increased to $150,000.00. The City of Scott asserts that, when this award is

considered together with the trial court’s $15,000.00 award for disfigurement, it is

sufficient.

Ms. Spears testified that she has pain everyday in her right ring finger, little

finger, and her wrist. She rated her pain as ranging from three or four to ten on a

scale of zero to ten. Dr. Granger testified that the development of pain in her little

finger and wrist resulted from the modified use of her ring finger and hand due to her

injury. He further testified that Ms. Spears may develop arthritis as a result of this

injury.

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Dr. Larriviere ordered physical therapy for Ms. Spears after her first surgery.

He instructed her to take pain medication before her therapy sessions to reduce the

pain that the therapy would induce. Ms. Spears testified that the therapy was very

painful and that she would ask the therapist to stop, but he would not. After six

months of physical therapy, Dr. Larriviere performed the surgery to remove the bone

fragment in her finger. He testified that the surgery significantly relieved

Ms. Spears’s pain, but Ms. Spears testified that the surgery only helped the pain a

“little bit.”

Dr. Larriviere testified that the movement in Ms. Spears’s ring finger was

significantly reduced by her injury and that this type of injury is extremely hard to

rehabilitate. He prescribed physical therapy after her first surgery to restore

movement and function to her finger, but not after her second surgery. He testified

that the physical therapist indicated in his notes that Ms. Spears did not do as much

at home as she could have to improve the finger’s range of motion. However, he

further testified that he believed Ms. Spears had a low pain threshold and that the

reduced range of motion he found in her finger during her July 2002 visit indicated

to him that she was not doing the exercises he had recommended.

As stated above, Dr. Larriviere did testify that Ms. Spears has a low threshold

for pain; however, he also testified that a lot of people fall into that category. None

of the experts who worked with Ms. Spears indicated that she is a malingerer or is not

interested in returning to work, as the trial court’s reasons infer. Her physical

therapist noted that she may not have been doing her home exercises as

recommended; however, the fragment which caused her much pain was still in her

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finger at that time and there is no indication the therapist had any knowledge of the

fragment.

A defendant’s liability for damages is not mitigated by the fact that the

plaintiff’s pre-existing physical infirmity was responsible in part for the consequences

of the plaintiff’s injury by the defendant. A defendant takes his victim as he finds

him and is responsible for all natural and probable consequences of his tortious

conduct. Perniciaro v. Brinch, 384 So.2d 392 (La.1980). Ms. Spears’s low pain

tolerance does not mitigate the City of Scott’s liability for her damages.

We have reviewed the medical evidence and Ms. Spears’s testimony regarding

the pain she has suffered and continues to suffer as a result of her injury and the

impact her injury has had on her and will continue to have on her in the future. We

find the trial court’s award for general damages is abusively low. We have reviewed

awards for similar injuries and increase the award to $75,000.00.

Finally, Ms. Spears argues that the trial court’s award for loss of earning

capacity is abusively low. We agree. In Batiste v. New Hampshire Insurance Co.,

94-1467, p. 3 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ denied, 95-1413

(La.9/22/95), 660 So.2d 472 (citation omitted), this court explained what earning

capacity is and how it is calculated:

[E]arning capacity refers to a person’s potential. Earning capacity is not
necessarily determined by actual loss. While the plaintiff’s earnings at
the time of the accident may be relevant, such figures are not necessarily
indicative of his past or future lost earning capacity. The plaintiff need
not be working or even in a certain profession to recover this type of
award. What is being compensated is the plaintiff’s lost ability to earn
a certain amount, and he may recover such damages even though he may
never have seen fit to take advantage of that capacity.

In determining whether a personal injury plaintiff is entitled to
recover for the loss of earning capacity, the trial court should consider
whether and how much plaintiff’s current condition disadvantages him

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in the work force. The trial court should thus ask itself what plaintiff
might be able to have earned but for his injuries and what he may now
earn given his resulting condition.

In making its award of $24,000.00 for loss of earning capacity, the trial court

observed that Ms. Spears’s hand injury was permanent and decreased her future

earning capacity. Continuing, the trial court explained its low award by referencing

the testimony of two experts who testified on Ms. Spears’s behalf. First, the trial

court referenced the testimony of Manilal Gala, a physical therapist specializing in

hand rehabilitation who performed a functional capacity evaluation on Ms. Spears

over the course of two days. The trial court stated that Mr. Gala testified that “if

someone was sufficiently motivated there’s no reason why they couldn’t become left

hand dominant.” However, Mr. Gala testified in response to a question by the trial

judge that Ms. Spears could “[t]heoretically” learn to bowl with her left hand, stating

“Theoretically, she can probably develop the skills with time if she practiced long

enough to bowl with the left hand, but most of the time it’s difficult for a right-hand

dominant person to bowl with the left hand unless they practice.” In response to

further questioning by the trial judge, Mr. Gala clarified, “We generally . . . do not do

. . . dominance transfer for the hobbies. We have trained people to dominance

transfer. There are exercises mainly for the writing purposes.” Mr. Gala further

testified, “There is enough information available. If a person practices and exercises

enough with the left hand, you can develop the skills to write with the left hand.”

The trial court next referenced the testimony of Stephanie Chalfin, a vocational

rehabilitation expert, who tested Ms. Spears in order to determine her ability to return

to the labor market. The trial court also questioned Ms. Chalfin regarding hand

dominance transfer. She testified: “I’ve had other clients or patients who have the

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same injuries to their dominant hands and they all found it very hard to switch

dominance, that they started using their non-dominant hand more but they were never

able to get it up to par. By that I mean, speed or coordination or anything like that.”

Ms. Chalfin reiterated Mr. Gala’s testimony that dominance transfer is primarily for

writing purposes. She further observed that for most people even writing with their

non-dominant hand is very slow and very sloppy.

The trial court discounted Ms. Chalfin’s testimony on this issue based on its

conclusion that her testimony conflicted with Mr. Gala’s testimony. Our review of

these experts’ testimony reveals that their opinions do not conflict and are actually

similar. Accordingly, we find the trial court erroneously discounted Ms. Chalfin’s

testimony.

Ms. Spears testified that she wanted to return to work. She contacted

Dr. Larriviere, and he told her she could try. She began trying to do things at home

as if she were working, like typing and using a computer. She testified that after

fifteen or twenty minutes of using her hand she had so much pain she would have to

stop whatever activity she was doing and soak her hand in a paraffin bath to relieve

the pain. She also testified that she attempted using splints prescribed by

Dr. Larriviere to increase the range of motion in her finger, but they caused her finger

to hurt so badly she often had to take them off immediately. Mr. Gala’s evaluation

confirmed her complaints of pain after using her right hand fifteen to twenty minutes

and her need to rest her hand after use.

The trial court also concluded that Ms. Spears was not sufficiently motivated

to endure pain to improve. We have previously discussed Ms. Spears’s physical

therapist’s note that she was not doing everything she could to improve the range of

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motion in her finger. Ms. Spears underwent physical therapy before Dr. Larriviere’s

removal of the fragment in her finger. As Dr. Larriviere testified, the fragment was

in near proximity to a nerve bundle and caused Ms. Spears much pain and discomfort

whenever it was touched. Nothing in the record indicates that Ms. Spears’s physical

therapist knew about the fragment or that it caused her pain upon touch. The

therapist’s comments that she did not try hard enough on her own must be considered

in this light. Additionally, we observe that no formal physical therapy was ordered

after the fragment was removed, even though Dr. Larriviere testified that this type of

injury is extremely hard to rehabilitate. We believe this course of events placed

Ms. Spears in an unfavorable light through no fault of her own. This is especially

true when Dr. Larriviere’s testimony that she has a low pain threshold is considered.

We find the trial court’s award for Ms. Spears’s loss of future earning capacity

is based on a misinterpretation of expert testimony and unfair treatment of her

because she has a low pain threshold and that the award is manifestly erroneous. Ms.

Chalfin testified that Ms. Spears would have been able to earn $8.00 to $12.00 per

hour if she had not been injured, that she will have to be selective in her employment

due to the limitations to her right hand and, as a result of those limitations, she will

be limited to earning $6.00 to $6.25 per hour. She concluded that her injury resulted

in a loss of approximately $3.40 to $4.75 per hour loss of earning potential. Doug

Womack, an economics expert, testified that Ms. Spears’s loss of future earning

capacity, based on her work life expectancy and discounted to today’s value, is

$125,518.00 ($3.40 per hour loss) to $175,356.00 ($4.75 per hour loss). We award

Ms. Spears $125,518.00 for loss of future earning capacity.

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Disposition

The judgment of the trial court is reversed insofar as it assigns liability to

Barbara Autin for the September 18, 2000 accident. The judgment of the trial court

is amended to increase Barbara Autin’s general damage award to $12,000.00 and to

increase Tessica Spears’s general damage award to $75,000.00 and her award for loss

of future earning capacity to $125,518.00. The judgment is affirmed in all other

respects. All costs are assessed to the City of Scott.

REVERSED IN PART, AMENDED IN PART, AND RENDERED.

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